§ 82-544. Powers and duties.

(a)

The zoning board of appeals shall hear only those matters that it is authorized to hear by the Zoning Act and this chapter and shall render its decision based upon the criteria contained in this chapter. The zoning board of appeals shall hear the following applications in accordance with the indicated procedures and standards.

(b)

Administrative appeals.

(1)

The zoning board of appeals shall hear and decide appeals where it is alleged that there is an error in fact, procedure, or interpretation in any order, requirement, permit, or decision made by the zoning administrator or other body enforcing the provisions of this chapter.

(2)

Reserved.

(3)

All appeals of administrative decisions must be taken within 21 days of the date when the action being appealed was completed. Upon filing of an appeal, the zoning administrator shall transmit all applicable documents and records to the board.

(4)

The hearing procedures for appeals shall be the same as those of subsection 82-543(f).

(c)

Interpretations: The zoning board of appeals shall have the power to make an interpretation of the provisions of this chapter when it is alleged that certain provisions are not clear or that they could have more than one meaning. In deciding upon the request, the board shall insure that its interpretation is consistent with the intent and purpose of this chapter and the article in which the language in question is contained.

(d)

Variances.

(1)

The zoning board of appeals, after public hearing, shall have the power to grant requests for variances from the provisions of this chapter where it is proved by the applicant that there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the chapter relating to the construction, equipment, or alteration of buildings or structures.

(2)

Nonuse variance. A nonuse variance may be allowed by the zoning board of appeals only in cases where there is reasonable evidence of practical difficulty related to the property in question in the official record of the hearing and that all of the following conditions are met:

a.

There are exceptional or extraordinary circumstances or conditions applying to the property in question that do not apply generally to other properties in the same zoning district. Exceptional or extraordinary circumstances or conditions include:

1.

Exceptional narrowness, shallowness or shape of a specific property on the effective date of this chapter; or

2.

Exceptional topographic conditions or other extraordinary situation on the land, building or structure; or

3.

The use or development of the property immediately adjoining the property in question; whereby the literal enforcement of the requirements of this chapter would involve practical difficulties; or

4.

There is a physical handicap affecting the owners of the property or any member of the family of an owner who resides on the property which impairs the ability of the disabled person to utilize or access the property.

5.

Any other physical situation on the land, building or structure deemed by the zoning board of appeals to be extraordinary.

b.

The condition or situation of the specific parcel of property for which the variance is sought is not of so general or recurrent a nature as to make reasonably practical the formulation of a general regulation for such conditions or situations.

c.

The variance is necessary for the preservation and enjoyment of a substantial property right similar to that possessed by other properties in the same zoning district and in the vicinity. The possibility of increased financial return shall not of itself be deemed sufficient to warrant a variance.

d.

The variance will not be significantly detrimental to adjacent property and the surrounding neighborhood.

e.

The immediate practical difficulty causing the need for the variance request was not created by any affirmative action of the applicant.

f.

The variance will not impair the intent and purpose of this chapter.

g.

The variance, if granted, would be the minimum variance to afford relief and would be the least modification of the applicable provisions of this chapter.

(3)

Use variances: A use variance may be allowed by the zoning board of appeals only in cases where there is reasonable evidence of unnecessary hardship related to the property in question in the official record of the hearing that all of the following conditions are met:

a.

The building, structure, or land cannot be reasonably used for a use allowed in the zone district in which it is located.

b.

The condition or situation of the specific parcel of property or the intended use of such property for which the variance is sought is unique to that property and not commonly present in the general vicinity or in the zone district. Unique conditions or situations include:

1.

Exceptional narrowness, shallowness or shape of a specific property on the effective date of this chapter;

2.

Exceptional topographic conditions or other extraordinary situation on the land, building or structure;

3.

The use or development of the property immediately adjoining the property in question; or

4.

Any other physical situation on the land, building or structure deemed by the zoning board of appeals to be extraordinary.

c.

The proposed use will not alter the essential character of the neighborhood or the intent of the master plan.

d.

The immediate unnecessary hardship causing the need for the request was not created by any affirmative action of the applicant.

e.

The variance, if granted, would be the minimum variance to afford relief and would be the least modification of the applicable provisions of this chapter.

(4)

Prior to the decision of the zoning board of appeals on a request for a use variance, the board may request that the planning commission, upon presentation by the applicant, consider the application and forward a report to the zoning board of appeals. The report shall be limited to the planning commission's review of the effect of the proposal on the existing or intended character of the neighborhood (subsection (d)(3)c of this section) and the ability of the property owner to use the property for a use already permitted under the existing zoning classification (subsection (d)(3)a of this section).

(Ord. No. 04-07, § 1(18.04), 7-12-2004; Ord. No. 11-05, § 1, 7-11-2011)