HomeMy WebLinkAbout2019-07-14-301.291
§301.29.Board of Adjustment – Procedure, Powers and Duties.
A. Board Created.
1.A Board of Adjustment is hereby established which shall consist of five
(5) members. The term of office of the members of the Board shall be five
years, with all terms to expire on January 31 of the appropriate year. The
terms of not more than one-third of the members will expire in any one
year.
2.If any vacancy exists on the Board, a successor for the remainder of the
term shall be appointed in the same manner as the original appointee. The
position of any Board member shall be vacant if the member resigns,
moves permanently from the City, or if said member is absent without due
explanation from six consecutive regular meetings of the Board, except in
the case of sickness, or is removed for cause by the Mayor with the
approval of the Council.
October 7, 2013 – Ordinance 2743
B. Meetings. Meetings of the Board shall be held at the call of the chairman, and at
such other times as the Board may determine. Such chairman, or in the
chairman's absence the acting chairman, may administer oaths and compel the
attendance of witnesses. 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 on 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 immediately filed in the office of the Board and shall be a public record. The
presence of three (3) members shall be necessary to constitute a quorum.
C. Appeals. Appeals to the Board may be taken by any person aggrieved, or by any
official, department, board or bureau of the City of Waukee affected by any
decision of the administrative official. Such appeal shall be taken within ten (10)
days by filing with the administrative official and with the Board a notice of
appeal specifying the grounds thereof. The administrative official shall forthwith
transmit to the Board all papers constituting the record upon which the action
appealed from is taken.
An appeal stays all proceedings in furtherance of the action appealed from, unless
the Administrative Official certifies to the Board after notice of appeal shall have
been filed, that by reason of facts stated in the certificate a stay would, in the
official's 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 and notice to the
administrative official, and on due case shown.
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D. Fee for Appeal. See Section 301.30 for schedule of fees.
E. Hearings, Notice. The Board shall fix a reasonable time for the hearing on the
appeal, give public notice thereof as well as due notice to the parties in interest
and decide the same within a reasonable time. At the hearing, any party may
appear in person or by agent, or by attorney. Before an appeal is filed with the
Board, the appellant shall pay a fee as set forth in Section 301.30.
F. Powers - Administrative Review. To hear and decide appeals where it is alleged
there is error in any order, requirement, decision or determination made by the
administrative official in the enforcement of this Ordinance.
G. Powers - Special Exceptions. To permit the following exceptions to the District
regulations set forth in this Ordinance subject to the requirements of this Section:
1. To permit erection and use of a building or the use of premises or vary the
height and the regulations in any location for a public service corporation
for public utility purposes or purposes of public communication, which the
Board determines is reasonable and necessary for the public convenience
or welfare.
2. To permit the extension of a use into a district where it would be otherwise
prohibited in a case where a district boundary line is so located that a lot or
plot is in more than one district.
3. To hear and decide only such other special exceptions as the Board is
specifically authorized to pass on by the terms of this Ordinance; to decide
such questions as are involved in determining whether special exceptions
should be granted; and to grant special exceptions when in harmony with
the purpose and intent of this Ordinance. A special exception shall not be
granted by the Board unless and until:
a. A written application for a special exception is submitted
indicating the section of this Ordinance under which the special
exception is sought and stating the grounds on which it is
requested.
b. Notice of public hearing shall be given at least ten (10) days in
advance of public hearing. The owner of the property for which
the special exception is sought or the owner's agent and any other
affected property owners shall be notified by mail. Notice of
hearing shall also be posted on the property for which a special
exception is sought.
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c. The public hearing shall be held. Any party may appear in person,
or by agent or attorney.
d. The Board shall make a finding that it is empowered under the
section of this Ordinance described in the application to grant the
special exception and it will not adversely affect the public interest.
In granting any special exception the Board may prescribe
appropriate conditions and safeguards in conformity with this
Ordinance. Violations of such conditions and safeguards, when
made a part of the terms under which the special exception is
granted, shall be deemed a violation of this Ordinance and
punishable under Section 301.33 of this Ordinance. The Board
may prescribe a time limit within which the action for which the
special exception is required shall be begun or completed, or both.
Failure to begin or complete, or both, such action within the time
limit set shall void the special exception.
H. Powers - Variances. To authorize upon appeal in specific cases such variance
from the terms of this Ordinance as will not be contrary to the public interest
where, owing to special conditions, a literal enforcement of the provisions of this
Ordinance would result in unnecessary hardship. A variance from the terms of
this Ordinance shall not be granted by the Board unless and until:
1. A written application for a variance is submitted demonstrating:
a. That special conditions and circumstances exist which are peculiar
to the land, structure, or building involved, and which are not
applicable to other lands, structures, or buildings in the same
district;
b. That literal interpretation of the provisions of this Ordinance would
deprive the applicant of rights commonly enjoyed by other
properties in the same district under the terms of this Ordinance;
c. That the special conditions and circumstances do not result from
the actions of the applicant;
d. That granting the variance requested will not confer on the
applicant any special privilege that is denied by this Ordinance to
other lands, structures, or buildings in the same district;
No non-conforming use of neighboring lands, structure, or
buildings in the same district, and no permitted use of land,
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structures, or buildings in other districts shall be considered
grounds for the issuance of a variance.
2. Notice of public hearing shall be given in advance of public hearing. The
owner of the property for which the variance is sought or the owner's agent
and any other affected property owners shall be notified by mail.
3. The public hearing shall be held. Any party may appear in person, or by
agent or by attorney.
4. The Board shall make findings that the requirements of this section have
been met by the applicant for a variance.
5. The Board shall further make a finding that the reasons set forth in the
application justify the granting of the variance, and that the variance is the
minimum variance that will make possible the reasonable use of the land,
building, or structure.
6. The Board shall further make a finding that the grant of the variance will
be in harmony with the general purpose and intent of this Ordinance, and
will not be injurious to the neighborhood or otherwise detrimental to the
public welfare.
In granting any variance, the Board may prescribe appropriate conditions
and safeguards in conformity with this Ordinance. Violation of such
conditions and safeguards, when made a part of the terms under which the
variance is granted, shall be deemed a violation of this Ordinance and
punishable under Section 301.33 of this Ordinance.
Under no circumstances shall the Board grant a variance to allow a use not
permissible under the terms of this Ordinance in the district involved, or
any use expressly or by implication prohibited by the terms of this
Ordinance in said District.
I. Decisions of the Board of Adjustment. In exercising the above-mentioned
powers, the Board may, so long as such action is in conformity with the terms of
this Ordinance, reverse or affirm, wholly or partly, or may modify the order,
requirements, decision, or determination appealed from and may make such order,
requirement, decision or determination as ought to be made, and to that end shall
have all the powers of the Administrative Official from whom the appeal is taken.
The concurring vote of three (3) members of the Board shall be necessary to
reverse any order, requirement, decision, or determination of the Administrative
Official, or to decide in favor of the applicant on any matter upon which it is
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required to pass under this Ordinance, or to effect any variation in this Ordinance.
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J. Appeals from Decision of the Board of Adjustment. Any taxpayer, or any
officer, department, board or bureau of the City of Waukee or any person or
persons jointly or severally aggrieved by any decision of the Board of Adjustment
may present to a court of record a petition, duly verified, setting forth that such
decision is illegal, in whole or in part, specifying the grounds of the illegality.
Such petition shall be presented to the court within thirty (30) days after the filing
of the decision in the office of the Board. The court may reverse or affirm, wholly
or in part, or may modify the decision brought up for review.