Sec. 27-31. Appeals and variances.
Appeals and requests for variances from the provisions of this chapter shall be taken and decided as follows.
(1) Board of adjustment. Appeals to the board of adjustment may be taken by any person aggrieved or by any officer, department, board or bureau of the city affected by any decision of the zoning official. Such appeal shall be taken within thirty (30) days of the decision of said officer, department, board or bureau, by filing with the officer from whom the appeal is taken and with the board of adjustment, a notice of appeal specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the board all the papers constituting the record upon which the action appealed from was taken. An appeal stays all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken certifies to the board of adjustment, after the notice of appeal shall have been filed with him or her, that by reason of facts stated in the certificate a stay would, in his or her opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed otherwise than by a restraining order which may be granted by the board of adjustment or by a court of record on application after notice to the officer from whom the appeal is taken and on due cause shown. The board of adjustment shall fix a reasonable time for the hearing of the appeal, give public notice thereof, as well as due notice to the parties in interest, and decide the same within a reasonable time. Upon the hearing, any party may appear in person or by agent or by attorney.
(2) Powers, jurisdiction, variance, when permitted. The board of adjustment shall, subject to such appropriate conditions and safeguards as may be established by the mayor and city council, have only the following powers:
a. Errors: To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official or agency based on or made in the enforcement of any zoning regulation or any regulation relating to the location or soundness of structures;
b. Interpretation of regulations or map: To hear and decide, in accordance with the provisions of any zoning regulation, requests for the interpretation of any map;
c. Variance of requirements: Where one or more of the following conditions exist, the board may authorize a variance if it makes specific findings that by reason of:
1. Exceptional narrowness of a specific piece of property; or
2. Shallowness, or shape of a specific piece of property at the time of the enactment of the zoning regulations; or
3. Exceptional topographic conditions or other extraordinary and exceptional situation or condition of such piece of property.
The strict application of any enacted regulation under this chapter would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardships upon, the owner of such property. Upon an appeal relating to the property, a variance from such strict application may be granted so as to relieve such difficulties or hardship, if such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of any ordinance or resolution.
The board shall, by resolution, set out findings of fact based on evidence and testimony that the following conditions exist or would result:
1. The strict application of the zoning regulation would produce undue hardship;
2. Such hardship is not shared generally by other properties in the same zoning district and the same vicinity;
3. The authorization of such variance will not be of substantial detriment to adjacent property and the character of the district will not be changed by the granting of the variance; and
4. The granting of such variance is based upon reason of demonstrable and exceptional hardship as distinguished from variations for purposes of convenience, profit or caprice.
Under no circumstance shall the board grant a variance if the condition or situation of the property concerned or the intended use of the property is not of so general or recurring a nature as to make reasonably practicable the formulation of a general regulation to be adopted as an amendment to the zoning regulations.
In exercising the above-mentioned powers such board may, in conformity with the provisions hereof, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from, and may make such order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the officer from whom the appeal is taken. The concurring vote of four (4) members of the board shall be necessary to reverse any order, requirement, decision or determination of any such administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under any such regulation or to effect any variation in such regulation.
(3) Fee: A fee as set forth in Section 2-5 of this Code shall accompany each application of appeal to the board of adjustment and the applicant shall also pay all publication costs necessitated by the filing of said application.
Source: Ord. No. 4603, § 1, 9-16-02; Ord. No. 4868, § 4, 1-17-06; Ord. No. 5135, § 18, 9-7-10