12-759.   Same; board of zoning appeals; membership; vacancies; powers;fees; variances; exceptions.(a) Any governing body which has enacted a zoning ordinance or resolution shallcreate a board of zoning appeals by adoption of the appropriate ordinance orresolution. Such board shall consist of not less than three nor more than sevenmembers. If a city enacts zoning regulations which affect land outside thecorporate limits of such city, at least one member of the board shall be aresident of the area outside the city's limits. The members first appointedshall serve respectively for terms of one, two and three years, divided equallyor as nearly equally as possible among the members. Thereafter the terms of themembers may be changed to either three or four years, whichever is deemed to bein the best interest of the city or county. Vacancies shall be filled byappointment for the unexpired terms. The members of such board shall servewithout compensation. The board annually shall elect one of its membersas chairperson, and shall appoint a secretary who may be an officer or anemployee of the city or county. The board shall adopt rules in accordance withthe provisions of the ordinance or resolution creating the board. Meetings ofthe board shall be held at the call of the chairperson and at such other timesas the board may determine. The board shall keep minutes of its proceedings,showing evidence presented, findings of fact by the board, decisions of theboard and the vote upon each question. Records of all official actions of theboard shall be filed in its office and shall be a public record. The governingbody, in the ordinance or resolution creating such board, may establish a scaleof reasonable fees to be paid in advance by the party appealing. Any two ormore cities or counties which have established a joint planning commission mayestablish a joint board of zoning appeals.

      (b)   Any board of zoning appeals in existence on the effective date ofthis act shall continue in existence, but shall be governed by the provisionsof this act.

      (c)   The board of zoning appeals shall administer the details of appeals fromor other matters referred to it regarding the application of the zoningordinance or resolution as hereinafter provided. The board shall fix areasonable time for the hearing of an appeal or any other matter referred toit. Notice of the time, place and subject of such hearing shall be publishedonce in the official city newspaper in the case of a city and in the officialcounty newspaper in the case of a county at least 20 days prior to the datefixed for hearing. A copy of the notice shall be mailed to each party to theappeal and to the appropriate planning commission.

      (d)   Appeals to the board of zoning appeals may be taken by any personaggrieved, or by any officer of the city, county or any governmental agency orbody affected by any decision of the officer administering the provisions ofthe zoning ordinance or resolution. Such appeal shall be taken within areasonable time as provided by the rules of the board, by filing a notice ofappeal specifying the grounds thereof and the payment of the fee requiredtherefor. The officer from whom the appeal is taken, when notified by the boardor its agent, shall transmit to the board all the papers constituting therecord upon which the action appealed from was taken. The board shall havepower to hear and decide appeals where it is alleged there is error in anyorder, requirement, decision or determination made by an administrativeofficial in the enforcement of the zoning ordinance or resolution. Inexercising the foregoing powers, the board, in conformity with the provisionsof this act, may reverse or affirm, wholly or partly, or may modify the order,requirement, decision, or determination, and to that end shall have all thepowers of the officer from whom the appeal is taken, may attach appropriateconditions, and may issue or direct the issuance of a permit.

      (e)   When deemed necessary by the board of zoning appeals, the board maygrant variances and exceptions from the zoning regulations on the basis and inthe manner hereinafter provided: (1) To authorize in specific cases avariance from the specific terms of the regulations which will not be contraryto the public interest and where, due to special conditions, a literalenforcement of the provisions of the regulations, in an individual case,results in unnecessary hardship, and provided that the spirit of theregulations shall be observed, public safety and welfare secured, andsubstantial justice done. Such variance shall not permit any use not permittedby the zoning regulations in such district. A request for a variance may begranted in such case, upon a finding by the board that all of the followingconditions have been met: (A) That the variance requested arises from suchcondition which is unique to the property in question and which is notordinarily found in the same zone or district; and is not created by an actionor actions of the property owner or the applicant; (B) that the granting of thepermit for the variance will not adversely affect the rights of adjacentproperty owners or residents; (C) that the strict application of the provisionsof the zoning regulations of which variance is requested will constituteunnecessary hardship upon the property owner represented in the application;(D) that the variance desired will not adversely affect thepublic health, safety, morals, order, convenience, prosperity, or generalwelfare; and (E) that granting the variance desired will not be opposed tothe general spirit and intent of the zoning regulations; and (2)to grant exceptions to the provisions of the zoning regulation in thoseinstances where the board is specifically authorized to grant suchexceptions and only under the terms of the zoning regulation. In no eventshall exceptions to the provisions of the zoning regulation be granted wherethe use or exception contemplated is not specifically listed as anexception in the zoning regulation. Further, under no conditions shall theboard of zoning appeals have the power to grant an exception whenconditions of this exception, as established in the zoning regulation by thegoverning body, are not found to be present.

      (f)   Any person, official or governmental agency dissatisfied with any orderor determination of the board may bring an action in the district court ofthe county to determine the reasonableness of any such order or determination. Such appeal shall be filed within 30 days of the final decision of the board.

      (g)   A planning commission also may be designated as a board of zoningappeals under this section.

      (h)   The provisions of this section shall become effective on and afterJanuary 1, 1992.

      History:   L. 1991, ch. 56, § 20; July 1.