Loading...
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. Page 1 of 8 BOARD OF ADJUSTMENT Revised 04-21-2022 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. Page 2 of 8 BOARD OF ADJUSTMENT Revised 04-21-2022 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. Page 3 of 8 BOARD OF ADJUSTMENT Revised 04-21-2022 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. Page 4 of 8 BOARD OF ADJUSTMENT Revised 04-21-2022 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 Page 5 of 8 BOARD OF ADJUSTMENT Revised 04-21-2022 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; Page 6 of 8 BOARD OF ADJUSTMENT Revised 04-21-2022 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. Page 7 of 8 BOARD OF ADJUSTMENT Revised 04-21-2022 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. Page 8 of 8 BOARD OF ADJUSTMENT Revised 04-21-2022