A Board of Zoning Appeals is hereby created in accordance with State Statutes governing such creation. The work “Board” when used in this Article shall mean Board of Zoning Appeals. The Board shall adopt rules of procedure as may be necessary and proper to govern its own proceedings; such rules shall not be in conflict with other laws, ordinances or resolutions. Meetings of the Board shall be held at the call of the chairman and at such other times as the Board may determine. The Board shall keep minutes of its proceedings, showing the description of evidence presented, the findings of fact by the Board, the decision of the Board and the vote of each member upon each question, or if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall be filed in the office of the Board immediately and shall be a public record.

The Board shall have the following powers and jurisdictions:

1.    Appeals: To hear and decide appeals where it is alleged there is an error in any order, requirement, decision or determination made by the Zoning Administrator in the enforcement of these regulations.

a.     Appeals to the Board may be taken by the person aggrieved, or by any officer, department, or Bureau of the government affected by any decision of the Zoning Administrator. Such appeal shall be taken within a reasonable time, as shall be prescribed by the Board by general rule, by filing with the Zoning Administrator and with the Secretary of the Board a notice of appeal specifying the grounds thereof. The Zoning Administrator shall forthwith transmit to the Secretary of the Board all papers constituting the record upon which the action appealed from is taken.

b.    An appeal stays all proceedings in furtherance of the action appealed from, unless the Zoning Administrator certifies to the Board, after the Notice of Appeal shall have been filed with him, that by reason of facts stated in the certificate, a stay would, in his 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, or by a court of record on application or notice to the Zoning Administrator on good cause shown.

2.    Variances: To authorize in specific cases a variance from the specific terms of these regulations which will not be contrary to the public interest and where, owing to special conditions, a literal enforcement of the provisions of these regulations will, in an individual case, result in unnecessary hardship, provided the spirit of these regulations shall be observed, public safety and welfare secured, and substantial justice done.

a.     The applicant must show that his property was acquired in good faith and where by reason of exceptional narrowness, shallowness or shape of this specific piece of property at the time of the effective date of the District Zoning Regulations or where by reason of exceptional topographical conditions or other extraordinary or exceptional circumstances that the strict application of the terms of the zoning regulations actually prohibit the use of his property in the manner similar to that of other property in the zoning district where it is located.

b.    Variances shall include intensity of use, yard and height regulations only and are limited to the following:

(1)   A yard regulation variance shall not encroach upon the required setback for adjacent buildings.

(2)   One story in height may be allowed for each one foot of additional building setback provided in addition to that required by the district regulation in which the property is located.

c.     A request for a variance may be granted, upon a finding of the Board that all of the following conditions have been met. The Board shall make a determination on each condition and the finding shall be entered in the record.

(1)   The variance requested arises from such condition which is unique to the property in question and which is not ordinarily found in the same zone or district; and is not created by an action or actions of the property owner or applicant.

(2)   The granting of the permit for the variance will not adversely affect the rights of adjacent property owners or residents.

(3)   The strict application of the provisions of the zoning regulations of which the variance is requested will constitute unnecessary hardship upon the property owner represented in the application.

(4)   The variance desired will not adversely affect the public health, safety, morals, order, convenience, prosperity or general welfare.

(5)   The granting of the variance desired will not be opposed to the general spirt and intent of the zoning regulations.

3.    Exceptions: To grant exceptions to the provisions of the zoning regulations but only in those instances' where the Board is specifically authorized to grant such exceptions in these zoning regulations. In no event shall exceptions to the provisions of the zoning regulations be granted where the use or exception contemplated is not specifically listed as an exception in the zoning regulations. Further, under no conditions shall the Board have the power to grant an exception when the conditions of this exception, as established by these regulations, are not found to be present.

a.     In considering any application for a special use permit hereunder, the Board shall give consideration to the Comprehensive Zoning Plan, the health, safety, morals, comfort and general welfare of the inhabitants of the community including, but not limited to, the following factors:

(1)   The stability and integrity of the various zoning districts.

(2)   Conservation of property values.

(3)   Protection against fire and casualties.

(4)   Observation of general police regulations.

(5)   Prevention of traffic congestion.

(6)   Promotion of traffic safety and the orderly parking of motor vehicles.

(7)   Promotion of the safety of individuals and property.

(8)   Provision for adequate light and air.

(9)   Prevention of over-crowding and excessive intensity of land uses.

(10) Provision for public utilities and schools.

(11) Invasion by inappropriate uses.

(12) Value, type and character of existing or authorized improvements and land uses.

(13) Encouragement of improvements and land uses in keeping with over-all planning.

(14) Provision for orderly and proper urban renewal, development and growth.

4.    Conditions of Determination: In exercising the foregoing power, the Board, in conformity with the provisions of this act, may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination, and to that end shall have all the powers of the officer from where the appeal is taken, may attach appropriate conditions, and may issue or direct the issuance of a permit.

A majority of the Board shall constitute a quorum for the transaction of business and a concurring vote of a majority of the entire Board shall be necessary to reverse any order, requirements, decision or determination of the Zoning Administrator, or to decide in favor of the applicant upon any matter which it is required to pass under any such Regulation, or to affect any variation in such Regulation. Upon the hearing, any party may appear in person or by agent or by attorney.

1.    The procedure for requesting a hearing before the Board shall be as follows:

a.    All applications to the Board shall be in writing on forms provided by the Board.

b.    The Board shall fix a reasonable time for the hearing of an application and notice of the time, place and subject of each hearing shall be published in the official newspaper (as designated by the governing body) at least 20 days prior to the date fixed for the public hearing. A copy of the notice of public hearing shall be sent to each party of interest and to the planning commission.

c.    At least 20 days prior to the date fixed for the public hearing, the applicant shall place in a conspicuous area on or near the property in question not less than one sign of a minimum of two (2) square feet in area containing notice of the time, place and subject of such hearing.

d.    An application shall be accompanied by a filing fee of twenty dollars ($20.00). A separate filing fee of $20.00 shall be required for each request.

2.    In addition to the above requirements, certain applications require additional information as follows:

a.    Appeals:

(1)   An application for an appeal shall be filed within 60 days after a ruling has been made by the zoning administrator.

(2)   A copy of the order, requirement, decision or determination of the Zoning Administrator which the appellant believes to be in error.

(3)   A clear and accurate, written description of the proposed used, work or action in which the appeal is involved and a statement justifying the appellant's position.

(4)   Where necessary, a plot plan, drawn to scale, in duplicate showing existing and proposed plans for the area in question shall be submitted.

b.    Variances:

(1)   The applicant shall submit a statement, in writing, justifying the variance requested; indicating specifically the enforcement provisions of the zoning regulations from which the variance is requested, and outlining in detail the manner in which it is believed that this application will meet each of the five conditions as set out in Section 2.2., c. of this Article.

(2)   The applicant shall submit a sketch, in duplicate, drawn to scale and showing the lot or lots included in the application; the structures existing thereon; and the structures contemplated necessitating the variance requested. All appropriate dimensions should be included and any other information which would be helpful to the Board in consideration of the application.

c.    Exceptions:

(1)   The applicant shall submit a statement in writing justifying the special use permit applied for, and indicating under which Article and Section of the Zoning Regulations the Board of Zoning Appeals is believed to have jurisdiction.

(2)   The applicant shall prepare and submit in duplicate at the time of filing the application, a detailed plot plan drawn to scale, showing all existing and proposed structures, property lines with dimensions, parking spaces, points of ingress and egress, driveways and any other information which would be helpful to the Board in consideration of the application.

In making any decision varying or modifying any provisions of the zoning regulations or in granting an exception to the district regulations, the Board shall impose such restrictions, terms, time limitations, landscaping and other appropriate safeguards to protect adjoining property.

The Board may require a performance bond to guarantee the installation of improvements such as parking lot surfacing, landscaping, etc. The amount of the bond shall be based on a general estimate of cost for the improvements as determined by the Board, and shall be enforceable by or payable to the Governing Body in the sum equal to the cost of constructing the required improvements.

In lieu of the performance bond requirements, the Board may specify a time limit for the completion of such required improvements and in the event the improvements are not completed within the specified time, the Board may declare the granting of the application null and void after reconsideration.

Any person, persons, department or departments of the government jointly or separately aggrieved by any decision of the Board may present to the District Court having jurisdiction, a petition, duly verified, stating that such decision is illegal in whole or in part, specifying the grounds of the illegality and asking for relief therefrom. Such petition shall be presented to the Court within 30 days after the date of filing the decision in the office of the Board.