Board of Adjustments Code
§ 150.300 CREATION.
A Board of Adjustment is created in accordance with § 8.05 of the Charter of the municipality.
§ 150.301 MEMBERSHIP AND APPOINTMENT.
(A) The Board shall consist of five members, appointed by the Mayor with the advice and consent of the Council, who may remove any member of the Board for cause upon written charges and after public hearing. Vacancies shall be filled by the appointing authority for the unexpired term of the member affected. At least one member of the Planning Board shall be a member of the Board of Adjustment. Board members shall serve a 5-year term, and shall be eligible for reappointment. Members of the Board of Adjustment existing at the time of adoption of this code on March 12, 1976, shall complete their appointed terms of office.
(B) Board of Adjustment members shall be compensated at the rate of $25 per member per meeting attended, but in no event shall such compensation exceed $50 per member per month.
(Am. Ord. CM-99-09, passed 3-9-99)
§ 150.302 ORGANIZATION.
(A) The Board of Adjustment shall elect its own officers annually and shall adopt the rules necessary to the conduct of its affairs. Meetings shall be held at the call of the Chairperson, and at such other times as the Board may determine.
(B) Three members of the Board of Adjustment present at a meeting shall constitute a quorum for the conducting of business. The Chairperson, or in his or her absence, the acting chairperson, may administer oaths and compel the attendance of witnesses.
(C) All meetings and records shall be open to the public.
§ 150.303 OFFICIAL ACTION.
The Board of Adjustment shall act by resolution or motion, and shall keep minutes of its proceedings,
(A) The vote of each member upon each question, or if any member is absent, or fails to vote, indicating such facts; and
(B) A statement of the facts of each appeal considered by the Board, and the section of this code where applicable which the Board has considered in approving or disapproving any petition or other matter brought before the Board.
§ 150.304 RIGHT OF PETITION OR APPEAL.
(A) Any person, property owner, tenant or any governmental officer, department, board or bureau may apply for a conditional use permit, or a variance from the strict applications of the terms of this code, or appeal a decision of the enforcing officer to the Board of Adjustment.
(B) An appeal of a ruling of the Enforcing Officer shall stay all proceedings, unless the Enforcing Officer certifies that, by reason of facts pertaining to the matter in question, a stay in his opinion would cause imminent peril to life and property. When such certification is made, proceedings shall not be stayed except by a restraining order granted by the Board of Adjustment or by the Court of Common Pleas.
§ 150.305 FEE.
(A) Each application for a variance or exception shall be accompanied by a fee of $25.
(B) Each application for a conditional use permit shall be accompanied by a fee of $50.
(C) Application fees shall not be refunded in any case.
§ 150.306 HEARING.
The Board of Adjustment shall fix a reasonable time for the hearing of any application, petition or appeal. It shall give at least ten days notice of the time and place of such hearing to the Enforcing Officer, and to the owners of record of property within 300 feet of the premises in question. The notice shall be delivered personally or by mail addressed to the respective owners at the address given on the last assessment roll. Any party may appear at the hearing in person, by agent or by attorney. The Board shall decide the application or appeal within a reasonable time.
§ 150.307 POWERS AND DUTIES.
The Board of Adjustment shall have all the appropriate power and duties prescribed by law, and by this code. The Board shall have the following powers and duties:
(A) Administrative review. To hear and decide appeals only in such cases where it is alleged there is error in any order, requirement, decision or determination made by the Enforcing Officer in the enforcement of this code. The concurring vote of four members of the Board present and voting shall be necessary to reverse any order, requirement, decision or determination of the Enforcing Officer, or to decide in favor of the applicant on any matter upon which the Board is required to pass under the terms of this code.
(B) Determination of similar uses. To determine if uses not specifically mentioned in this code are similar to uses permitted within a district.
(C) Determination of district boundary location. To determine the exact location of any district boundary, if there is uncertainty as to exact location thereof. In making such determination the Board shall be guided by the provisions of § 150.007.
(D) Conditional use permits. To hear and decide only such conditional uses as the Board of Adjustment is specifically authorized to pass on under the terms of this code, or to deny conditional use permits when not in harmony with the intent and purpose of this code or the Comprehensive Master Plan. The following requirements shall be complied with prior to any approval or denial of a conditional use permit by the Board of Adjustment.
(1) A written application for a conditional use shall be submitted, indicating the section of this code under which the conditional use is sought and stating the grounds on which it is requested.
(2) A public hearing shall be held as specified in § 150.306.
(3) The Board of Adjustment shall determine:
(a) Authority. Whether it has the authority to grant the request.
(b) Adverse effect. That the granting of the conditional use will not adversely affect the neighborhood in which the conditional use is to be located.
(c) Master plan. That the conditional use is not one which is contrary to the Comprehensive Master Plan of the municipality. In making this determination, the Board shall be advised by the recommendation of the Planning Board.
(4) Conditions. In granting any conditional use permit, the Board of Adjustment may prescribe appropriate conditions and safeguards in conformity to the provisions of this code and the recommendation of the Planning Board. The Board of Adjustment shall require a performance bond or letter of credit to assure conformance to such conditions and safeguards as may be necessary. Violation of such conditions and safeguards shall cause the performance bond mentioned above to be forfeited, or a draft to be drawn on the full amount of the letter of credit, and shall be deemed a violation of this code and punishable under § 150.999. A conditional use permit shall expire one year after it is issued unless actual construction has taken place or is under way, except as provided elsewhere in this code. A conditional use permit issued for other than construction shall expire in six months after it is issued unless the actual use has been established. The validity of a conditional use permit will continue until such use is terminated by the discontinuance of the use, by special conditions set forth by the Board of Adjustment, or by change of ownership of the property on which the use is located.
(E) Variances. To vary the strict application of any of the requirements of this code in the case of exceptionally irregular, narrow, shallow or deep lots, or other exceptional physical conditions whereby such strict application would result in practical difficulty or unnecessary hardship, not economic in nature, that would deprive the owner of the reasonable use of the land or building involved, but in no other case. The fact that another use would be more profitable is not a valid basis for legally granting a variance. No nonconforming use of neighboring lands, structures or buildings in the same district, and no permitted use of lands, structures or buildings in other districts shall be considered grounds for the issuance of a variance. No variance in the strict application of this code shall be granted by the Board of Adjustment unless and until the applicant submits, and the Board concurs with, the following.
(1) Condition and circumstances. 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.
(2) Property rights. That literal interpretation of the provisions of this code would deprive the applicant of property rights commonly enjoyed by other properties in the same district under the terms of this code.
(3) Applicant not at fault. That the special conditions and circumstances do not result from the actions of the applicant, his or her agents or prior property owners.
(4) No special privilege. That granting the variance requested will not confer on the applicant any special privilege that is denied by this code to other lands, structures or buildings in the same district.
(5) Harmony with locality. That the variance requested shall not alter the essential character of the locality, nor be in conflict with the comprehensive master plan. In making this determination, the Board of Adjustment shall be advised by the recommendation of the Planning Board.
(F) Procedure for consideration of petitions for variances.
(1) Upon filing an application for a variance, the request shall be first forwarded to the Planning Board for its consideration and recommendation to the Board of Adjustment.
(2) The Board of Adjustment shall make a finding that the reasons set forth in the application are valid and justify the granting of the variance. The Board shall also determine if the variance is the minimum variance that will make possible the reasonable use of land, building or structure.
(3) Under no circumstances shall the Board of Adjustment grant a variance which will permit a use which is not permitted in the district involved.
(4) The Board of Adjustment may prescribe appropriate conditions and safeguards in conformity with this code. The Board of Adjustment shall require a performance bond or irrevocable letter of credit to assure conformance to such conditions and safeguards as the Board may require.
(5) Violation of such conditions and safeguards, when they are made a part of the terms under which a variance is granted, shall cause the aforementioned performance bond to be forfeited or a draft to be drawn on the full amount of the letter of credit, and shall be deemed in violation of this code and punishable under § 150.999.
(6) Prior to taking action on a request for a variance, the Board of Adjustment shall hold a public hearing and give notice to property owners as provided in § 150.306.
(7) The decision of the Board of Adjustment shall not become final until the expiration of five days from the date of entry of such order, unless the Board shall find the immediate effect of such order is necessary for the preservation of property or personal rights, and shall so certify on the record.
(Am. Ord. CM-726, passed 1-8-85)