§ 38-504. Duties and powers.

The city zoning board of appeals shall not have the power to alter or change the zoning district classification of any property, nor to make any change in the terms or intent of this chapter, but does have power to act on those matters where this chapter provides for an administrative review, interpretation, variance, exception, or special approval permit as defined in this section:

(1)

Review. The board shall hear and decide appeals where it is alleged by the appellant that there is an error in any order, requirement, permit, decision or refusal made by the city building inspector or by any other official in administering or enforcing any provisions of this chapter.

(2)

Interpretation. The board shall have the power to:

a.

Interpret, upon request, the provisions of this chapter in such a way as to carry out the intent and purpose of this chapter;

b.

Determine the precise location of the boundary lines between zoning districts;

c.

Classify a use which is not specifically mentioned as part of the use regulations of any zoning district so that it conforms to a comparable permitted or prohibited use, in accordance with the purpose and intent of each district;

d.

Determine the off-street parking and loading space requirements of any use not specifically mentioned in section 38-380, 38-381 or 38-382;

e.

Permit, after recommendation from the planning commission, less than three (3) attached units in the R-T district as outlined in section 38-98;

f.

Authorize a change to another nonconforming use as provided in section 38-378(e)(3);

g.

Authorize selected accessory buildings, provisions outlined in section 38-379(5) and (7).

(3)

Variances. The board shall have the power to authorize, upon appeal, specific variances from such requirements as lot area and width regulations, building height and bulk regulations, yard and depth regulations, signs and off-street parking and loading space requirements, provided all of the basic conditions listed herein and any one (1) of the special conditions listed thereafter can be satisfied.

a.

Basic conditions. In order to qualify for a variance, the applicant must show that a variance:

1.

Will not be contrary to the public interest or to the intent and purpose of this chapter;

2.

Shall not permit the establishment within a district of any use which is not permitted by right within that zone district, or any use or dimensional variance for which a conditional use permit or a temporary use permit is required;

3.

Is one that is unique and not shared with other property owners;

4.

Will relate only to property that is under control of the applicant;

5.

Is applicable whether compliance with the strict letter of the restrictions governing area, set backs, frontage, height, bulk or density would unreasonably prevent the owner from using the property for a permitted purpose or would render conformity with such restrictions unnecessarily burdensome;

6.

Was not created by action of the applicant (i.e. that it was not self-created);

7.

Will not impair an adequate supply of light and air to adjacent property or unreasonably increase the congestion of public streets or increase the danger of fire or endanger the public safety;

8.

Will not cause a substantial adverse effect upon property values in the immediate vicinity or in the district in which the property of the applicant is located;

9.

Is applicable whether a grant of the variance applied for would do substantial justice to the applicant as well as to other property owners in the area, or whether a lesser relaxation than that applied for would give substantial relief to the owner of the property involved and be more consistent with justice to other property owners.

b.

Special conditions. When all of the foregoing basic conditions can be satisfied, a variance may be granted when any one (1) of the following special conditions can be clearly demonstrated:

1.

Where there are practical difficulties or unnecessary hardships which prevent carrying out the strict letter of this chapter. These hardships or difficulties shall not be deemed economic, but shall be evaluated in terms of the use of a particular parcel of land;

2.

Where there are exceptional or extraordinary circumstances or physical conditions such as narrowness, shallowness, shape, or topography of the property involved, or to the intended use of the property, that do not generally apply to other property or uses in the same zoning district;

3.

Where such variation is necessary for the preservation of a substantial property right possessed by other properties in the same zoning district.

c.

Rules. The following rules shall be applied in the granting of variances:

1.

The board may specify, in writing, such conditions regarding the character, location, and other features that will, in its judgement, secure the objectives and purposes of this chapter. The breach of any such condition shall automatically invalidate the permit granted.

2.

Each variance granted under the provisions of this chapter shall become null and void unless:

i.

The construction authorized by such variance or permit has been commenced within six (6) months after the granting of the variance and proceeds to completion in accordance with the terms of the variance;

ii.

The occupancy of land, premises, or buildings authorized by the variance has taken place within one (1) year after the granting of the variance.

3.

No application for a variance which has been denied wholly or in part by the board shall be resubmitted for a period of one (1) year from the date of the last denial, except on the grounds of newly-discovered evidence or proof of changed conditions found upon inspection by the board to be valid.

4.

In granting or denying a variance the board shall state the findings of fact upon which it justifies the action.

(4)

Special exceptions. When, in its judgment, the public welfare will be served and the use of neighboring property will not be injured thereby, the board may, in a specific case, after due notice and public hearing and subject to appropriate conditions and safeguards, determine and vary the application of the regulations of this chapter in harmony with the general character of the district and the intent and purposes of this chapter. The granting of a special exception shall in no way constitute a change in the basic uses permitted in the district affected nor on the property wherein the exception is permitted. The board may issue either temporary or conditional permits as special exceptions for the following land and structure uses:

a.

Reserved.

b.

Conditional permits. When conditions exist that are unique to a particular situation, a conditional permit may be issued with specific limitations imposed by the board. The land or structure may be permitted to be established and to continue in use as long as the conditions unique to the use exist. The permit issued shall contain all the specified conditions under which continued use may be allowed. Conditional permits may be issued for the following uses:

1.

Permit more than two (2) roomers in any one (1) dwelling, but not more than four (4), when it can be demonstrated to the satisfaction of the board that such an expanded capacity is a clear necessity for satisfaction of this particular housing demand; that adequate off-street parking space can be provided in accordance with standards stated in section 38-380; and that such use will not injure the character or value of the immediate neighborhood.

2.

The board may authorize a reduction, modification, or waiver of any of the off-street parking or off-street loading regulations in section 38-380, 38-381 or 38-382, when it can be demonstrated that circumstances of extreme practical difficulty exist that would unquestionably result in hardship to the applicant when a literal interpretation of the regulations is required. Hardship shall not be deemed economic, but shall be evaluated in terms of the use of a particular parcel of land. A hardship that is a result of any action of the applicant shall not be considered by the board. Under all these circumstances, in no case shall the off-street parking or off-street loading standards be reduced by more than twenty-five (25) percent.

3.

Joint use of off-street parking areas may be authorized by the board when the capacities outlined in section 38-380 are complied with and when a copy of an agreement between joint users shall be filed with the application for a building permit and is recorded with the county register of deeds, guaranteeing continued use of the parking facilities for each party.

4.

Permit modification of wall requirements, as outlined in Article XVIII, section 38-387, only when such modification will not adversely affect or be detrimental to surrounding or adjacent development.

5.

Permit, upon proper application, the following character of temporary use, not otherwise permitted in any district, not to exceed twelve (12) months with the granting of twelve-month extensions being permissible: Uses which do not require the erection of any capital improvement of a structural nature.

 The board of appeals, in granting permits for the above temporary uses, shall do so under the following conditions:

i.

The granting of the temporary use shall in no way constitute a change in the basic uses permitted in the district nor on the property wherein the temporary use is permitted.

ii.

The granting of the temporary use shall be granted in writing, stipulating all conditions as to time, nature of development permitted and arrangements for removing the use at the termination of said temporary permit.

iii.

All setbacks, land coverage, off-street parking, lighting and other requirements to be considered in protecting the public health, safety, peace, morals, comfort, convenience and general welfare of the inhabitants of the city, shall be made at the discretion of the board of appeals.

iv.

In classifying uses as not requiring capital improvement, the board of appeals shall determine that they are either demountable structures related to the permitted use of the land; recreation developments, such as, but not limited to: golf-driving ranges and outdoor archery courts; or structures which do not require foundations, heating systems or sanitary connections.

v.

The use shall be in harmony with the general character of the district.

vi.

No temporary use permit shall be granted without first giving notice to owners of adjacent property of the time and place of a public hearing to be held as further provided for in this chapter. Further, the board of appeals shall seek the review and recommendation of the planning commission prior to the taking of any action.

(5)

Findings of adverse impact on historical resources. Prior to any action taken by the board for any of the aforementioned duties and powers, a consideration of adverse impact described in section 38-32(e)(1) shall be applied to a matter as a basis for denial or alteration of the appeal.

(Ord. No. 437, § 5.113, 9-16-85; Ord. No. 448, §§ 1, 2, 2-16-87; Ord. No. 499, 2-16-93; Ord. No. 590, § 1, 10-18-99; Ord. No. 744, § 2, 8-19-13)