CHAPTER 09 Title 10 Board of Adjustment
CHAPTER 9
BOARD OF ADJUSTMENT
SECTION:
10-9-1: Creation of Board of Adjustment
10-9-2: Organization of the Board
10-9-3: Duties of the Board of Adjustment
10-9-4: Decision on Appeals
10-9-5: Who May Make Appeals--Application--Fee--Form
10-9-6: Papers and Records to be Submitted to Board of Adjustment
10-9-7: Notice of Hearing
10-9-8: Powers and Duties of Board of Adjustment
10-9-9: Vote
10-9-10: Recourse From Decision
10-9-11: Authority to Create Separate Board
10-9-1: CREATION OF BOARD OF ADJUSTMENT: There is hereby created a
Board of Adjustment to be composed of the Mayor and members of the City Council to aid
in the administration of this ordinance, with powers and duties as hereinafter set forth.
10-9-2: ORGANIZATION OF THE BOARD: The Board of Adjustment shall adopt
rules in accordance with the provisions of this ordinance.
Meetings of the Board shall be held at times as the Board may determine. All meetings
of the Board shall be open to the public. The Board shall keep minutes of its proceedings,
showing the vote of each member upon each question or, if absent or failing to vote,
indicating such facts and shall keep records of its examinations and other official acts, all
of which shall be filed immediately in the office of the Board of Adjustment and shall be a
public record. The City Clerk shall serve as Secretary of the Board, but shall have no vote
at the meetings of the Board.
10-9-3: DUTIES OF THE BOARD OF ADJUSTMENT: The Board shall consider
testimony given at a hearing held before the Planning and Zoning Commission and the
recommendation of the Planning and Zoning Commission and review appeals from any
order, requirement, decision or determination made by the Zoning Administrator and shall
have appellate jurisdiction over all decisions and rulings of the Zoning Administrator. It
shall also have original jurisdiction over the issuance of conditional use permits. It shall
also perform such other duties as are provided by this ordinance as may be assigned to
the Board by the City Council.
10-9-4: DECISION ON APPEALS: The Board of Adjustment shall hear and decide appeals
from any decision or requirement made by the Zoning Administrator, shall hear and decide
applications for conditional use permits and other matters as specified by the terms of this
ordinance within forty-five (45) days from the date on which the Zoning Administrator
receives the appeal or request for a determination in writing from the appellant.
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10-9-5: CONDITIONAL USE APPLICATIONS AND APPEALS: Any citizen or
person or any officer or department of the City may appeal to the Board of Adjustment by
filing a request in written form clearly addressing the appeal request. All appeal requests
must be submitted in completed form along with any required fees, meeting the current
requirements for the required hearing procedures. Such appeal shall be made within thirty
(30) days from the grant or refusal of a building permit by the Zoning Administrator.
The Board of Adjustment may consider only three (3) types of cases. The Powers
of the Board of Adjustment are as follows:
A. The Board of Adjustment shall consider appeals of the type of case where the
applicant alleges the Zoning Administrator is interpreting the zone map incorrectly.
(See paragraph 10-9-8-(A) of the zoning ordinance.)
B. The Board of Adjustment may upon application consider the type of case known
as a variance, where the person making the application can show that the strict
application of the regulation would result in peculiar and exceptional difficulties or
unnecessary hardship upon the property because of exceptional narrowness,
shallowness or shape of his property at the time of the enactment of the controlling
regulation, or because of exceptional topographic conditions or other conditions
peculiar to the lot. However, the Board of Adjustment cannot grant a request which
would be contrary to the spirit of the zoning ordinance or its objectives and
purposes. (See paragraph 10-9-8-(B) of the zoning ordinance.)
C. The Board of Adjustment upon application may approve special or conditional use
permits and special exceptions, which are specifically set out in the zoning
ordinance. (See paragraph 10-9-8-(C) of the zoning ordinance.) The Board of
Adjustment may approve, deny, in whole or in part, or may attach conditions to the
grant of the request. (See paragraph 10-9-8-(D) and 10-9-8-(E) of the zoning
ordinance).
D. Any person or business that violates the terms and conditions of a conditional use
permit shall be subject to the revocation of the conditional use permit. Revocation
of a conditional use permit shall be done by the City Council at a regular City
Council meeting. The holder of the conditional use permit subject to revocation
shall be notified of the time and place the City Council will review said conditional
use permit.
E. Any violation of the terms of a conditional use permit shall be deemed an infraction
and subject to penalties for such violations under section 1-4-2 of the City Code.
Each day such violation continues, shall be a separate violation, which shall be
deemed as a separate infraction and a citation may be issued therefore. Violations
shall be assessed on a per violation per day basis.
10-9-6: PAPERS AND RECORDS TO BE SUBMITTED TO BOARD OF
ADJUSTMENT: Upon the filing of the application, the Zoning Administrator shall schedule
a hearing date and prepare all papers, records and other pertinent data pertaining to the
appeal.
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10-9-7: NOTICE OF HEARING: The Planning and Zoning Commission shall hold
a public hearing and make a recommendation to the Board of Adjustment in regards to
granting or denying a conditional use permit as provided in Section 67-6509 of the Idaho
Code.
The Board of Adjustment may order a public hearing before deciding any other matter
within its jurisdiction under the provisions of this ordinance. If a public hearing is required
hereunder, or ordered by said Board, a notice of the time and place of such hearing shall
be published in the official newspaper of the City at least fifteen (15) days before the date
of the hearing as provided in Section 67-6509 of the Idaho Code.
10-9-8: POWERS AND DUTIES OF THE BOARD OF ADJUSTMENT: The Board
of Adjustment shall have the following powers and duties:
A. Alleged Error. The Board of Adjustment shall hear and decide appeals wherein it is
alleged that there is error in any order, requirement, decision, or determination made
by the Zoning Administrator, or other administrative officers, in the enforcement of this
ordinance and shall decide questions involving interpretation and determination of
zone boundary lines, subject to review and approval by the City Council.
B. Variance. The Board of Adjustment may grant variances from the strict letter of this
ordinance where a property owner can show that:
1. Because of exceptional narrowness, shallowness or shape of a specific lot or
parcel of land, or
2. By reason of peculiar topographical features or other special circumstances
peculiar to the particular lot or parcel of land, the strict application of the terms
of this ordinance would deprive him of privileges commonly enjoyed by other
properties in the same zone.
Before a variance can be granted, the Board of Adjustment must find upon the evidence
before it that:
1. Special circumstances do actually attach to the particular property which
do not apply generally to the other properties in the same zone.
2. Because of some special circumstances the appellant's property is
deprived of privileges possessed by other properties in the same zone.
3. The granting of such variance will not adversely affect the comprehensive
plan of zoning in the City.
4. Adherence to the strict letter of the ordinance will cause difficulties and
hardships, the imposition of which is unnecessary in order to carry out the
purposes of the zoning plan.
5. The hardship has not been caused by an action of the property owner taken
after the effective date of this ordinance.
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C. Conditional Use Permits. The Board of Adjustment may grant the following
conditional use permits:
1. The Board of Adjustment may authorize a dwelling to face upon a private
driveway, subject to the following conditions:
(a) The structure in which such dwelling is situated will be at least
twenty feet (20') from the nearest other building on the same or
adjoining lot.
(b) It is readily accessible by emergency vehicles.
(c) It has side, front, and rear yards at least as great as those required
in the RP-A zone.
(d) In the opinion of the Board of Adjustment, the dwelling is located in
harmony with the objectives and characteristics of the zone in which
the dwelling is located.
2. Flood Channels. The Board of Adjustment may permit buildings to be
constructed within seventy-five (75) feet from the banks of a natural flood
channel, subject to conditions set forth in paragraph 10-5-11 of this
ordinance.
3. Permit temporary use of certain lands and structures.
(a) The Board of Adjustments may permit the temporary use of certain
lands and buildings as set forth in paragraph 10-5-22 of this
ordinance.
(b) The Board of Adjustment may allow and authorize the issuance of
a building permit and/or conditional certificate of occupancy for the
use of land and/or the erection and use of buildings for a use which
the Board determines is in harmony with the objectives and
characteristics of the zone in which such use is to be located.
Such conditional use permit shall be for a limited time and may be
renewed in the discretion of the Board but shall not survive the
change of ownership of the property or of the use.
As a condition to granting any special use permit, the Board may
require the written consent of all property owners who own property
contiguous and adjacent to the subject property and may require a
notification of all land owners within five hundred (500) feet of the
subject property. Notification of the application of the special use
permit to all property owners within five hundred (500) feet of the
subject property with the notice of the hearing date and time
thereon, shall be made by the petitioner by first class mail with an
affidavit of mailing naming the addressees and the date of mailing.
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Any such permit shall be granted only after public notice and
hearing as provided in Section 67-6509 of the Idaho Code.
4. Reduce off-street Parking Requirements in CC-1 Zone. The Board of
Adjustment may reduce off-street parking requirements in the CC-1 Central
Commercial Zone, subject to conditions set forth in paragraph 10-5-23-(D)-
(2) of this ordinance.
5. Permit Off-street Parking to be Provided on Adjacent Lots. The Board of
Adjustment may permit off-street parking facilities required in connection
with dwellings to be located on adjacent or nearby lots, subject to
conditions set forth in paragraph 10-5-23-(D)-1-(b) of this ordinance.
6. Determine Off-street Parking Requirements for Uses Not Mentioned in
Ordinance. The Board of Adjustment may determine the number of
off-street parking spaces required for uses not specifically mentioned in
this ordinance, subject to the conditions set forth in paragraph
10-5-23-(D)-5 of this ordinance.
7. Authorize Off-street Loading Facilities in the CC-1 Zone to be provided on
Adjacent or Nearby Lots. The Board of Adjustment may permit required
off-street loading facilities in the CC-1 Zone to be located on adjacent or
nearby lots, subject to conditions set forth in paragraph 10-5-23-(S) of this
ordinance.
8. Authorize the Moving of Buildings. The Board of Adjustment may
authorize the Zoning Administrator to issue a permit for the moving of
buildings, subject to conditions as set forth in paragraph 10-6-1 of this
ordinance.
9. Authorize a Permit for Mortuaries and Funeral Homes. The Board of
Adjustment may authorize the Zoning Administrator to issue a permit for a
mortuary or funeral home, as required by Chapter 18 of this Title and
subject to conditions set forth in paragraph 10-7-7 of this ordinance.
10. Authorize a Permit for Cemeteries, Mausoleums, and Columbaria. The
Board of Adjustment may authorize the Zoning Administrator to issue a
permit for a cemetery, mausoleum or columbarium, subject to conditions
set forth in paragraph 10-7-5 of this ordinance.
11. Grant Permit for Shooting Range. The Board of Adjustment may grant a
permit for the construction of a shooting range in the I&M Zone, provided
satisfactory evidence is presented to the Board that the safety of the
surrounding area will be fully safeguarded.
12. Authorize a Permit for Dwelling Groups. It shall have the power to authorize
the issuance of a permit for a dwelling group (planned), subject to
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conditions and standards as set forth in paragraph 10-27-4 of this
ordinance.
13. Authorize a Permit for Parks. It shall have the power to authorize the
issuance of permits for public and semi-public parks, playgrounds and
schools, subject to conditions and standards as set forth in paragraph 10-
7-1 this ordinance.
14. Authorize a Permit for Churches, Clubs, and Lodges. The City Planning
Commission shall have the power to authorize the issuance of a permit for
churches, clubs, lodges and similar buildings, subject to conditions as set
forth in paragraph 10-7-6 of this ordinance.
15. Grant Other Conditional Use Permits Authorized by Ordinance. The Board
of Adjustment may grant other conditional use permits as deemed
acceptable in the sole discretion of the board and after considering all
relevant facts and with the intent of creating uniformity in granting of
conditional use permits.
16. In approving or denying a request for a conditional use permit on which the
Board is requested to pass, evidence must be presented to the Board that
the objectives and characteristics of the ordinance and the zone in which
the development is located shall not be adversely affected.
D. May Attach Reasonable Conditions. The Board of Adjustment may attach
reasonable conditions or requirements to the grant of a variance, exception, or
conditional or special use permit which the petitioner must comply with as a
condition of the grant or approval and may attach a time limit on the exercise non-
exercise of any grant. If the petitioner fails or refuses to comply with any of the
conditions within the time specified, the grant or permit shall become null and void.
Those conditions may include but are not limited to, those that:
1. Minimize adverse impact on other development;
2. Control the sequence and timing of use/development;
3. Control the duration of the use/development;
4. Assure that the use/development is maintained properly;
5. Designate the exact location and nature of use/development;
6. Require the provision for on-site or off-site public facilities or services;
7. Require more restrictive standards than those generally required in an
ordinance;
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8. Require mitigation of effects of the proposed development upon service
delivery by any political subdivision, including school districts, providing
services within the planning jurisdiction;
9. Prior to granting a special use permit, studies may be required of the social,
economic, fiscal, and environmental effects of the proposed special use.
E. May Reverse or Affirm Zoning Administrator. In performing the duties as set forth
herein, the Board of Adjustment is hereby empowered to reverse or affirm, wholly or
party, or modify the order, requirement, decision or determination of the enforcing
officer, and may make such order or requirement as ought to be made; provided,
however, the Board of Adjustment shall not have power to amend this ordinance nor
to permit nor prohibit any actions which would have the effect of amending this
ordinance.
F. Authority Limited. The powers and duties of the Board of Adjustment are limited to
administrative matters as herein set forth which shall be strictly construed. It shall not
be the function of the Board of Adjustment to grant a request which would have the
effect of amending the zoning ordinance or of correcting what it may consider to be an
unwise requirement in the zoning ordinance. Nevertheless, the Board of Adjustment
shall have administrative duties as set forth in this ordinance and, within the meaning
of the provisions of this ordinance, shall perform its duties and shall have the power to
perform those acts as herein set forth; and such administrative actions shall not be
interpreted as unauthorized amendments to this ordinance.
G. Precedent. A special use permit shall not be considered as establishing a binding
precedent to grant other special use permits.
H. Non-transferable. A special use permit is site and use specific and not transferable
from one parcel of land to another.
10-9-9: VOTE: The concurring vote of one-half plus one of the members present
of a quorum from the total membership of the Board shall be necessary to decide upon
any matter upon which it is required to pass.
10-9-10: RECOURSE FROM DECISION OF BOARD OF ADJUSTMENT:
A. Recourse from Decision of the Board of Adjustment. The determination of the Board
of Adjustment shall be final unless a written appeal is made to the City Council within
fifteen (15) days from the date of the written determination. The written notice of
appeal shall be filed with the City Clerk and shall set forth specifically wherein the
Board of Adjustment erred in its determination. Upon the receipt of an appeal, the
City Council shall refer one copy of the appeal to the Board of Adjustments; and
thereupon, the Board of Adjustment shall make a report to the City Council disclosing
in what respect the application and facts offered in support thereof met or failed to
meet the necessary requirements. The concurring vote of a majority of the members
of the City Council shall be required to reverse any order, requirement, decision or
determination of the Board of Adjustment.
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B. Recourse From Decision of City Council. Any person aggrieved by a decision of the
City Council may have and maintain a plenary action for relief therefrom in any court
of competent jurisdiction.
10-9-11: AUTHORITY TO CREATE SEPARATE BOARD: The City Council may, in
lieu of acting as Board of Adjustment for the City, appoint a separate Board to aid in the
administration of this ordinance, with powers and duties as hereinabove set forth. Said
Board shall consist of five (5) members, each to be appointed by the Mayor, with the
consent of the City Council, for a term of four (4) years, provided that the terms of the
members of the first Board so appointed shall be such that the term of not more than two
(2) members shall expire in any one year. One member of the Board shall also be a
member of the planning commission. Any member may be removed for cause by the City
Council upon written charges and after a public hearing, if such public hearing is
requested. Vacancies shall be filled for the unexpired term of any member whose term is
not completed.
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