19-2962. Same; board of zoning appeals; establishment; membership; meetings; powers; review of board decisions contrary to zoning regulations; judicial review.
19-2962
19-2962. Same; board of zoning appeals; establishment; membership;
meetings; powers; review of board decisions contrary to zoning regulations;
judicial review.
(a) Any zoning regulations adopted under this act shall provide
for the establishment of a board of zoning appeals. The board of zoning
appeals shall consist of not less than five nor more than nine members who
shall be appointed by the board of county commissioners. All of the board's
members shall be residents of the unincorporated area of the county.
The members first appointed by the board of county commissioners shall be
appointed for terms of one, two and three years. The terms shall be divided
equally or as nearly equally as possible between members. Thereafter
members shall be appointed for terms of three years each. All members shall
serve until their successors are appointed and qualified. Vacancies shall
be filled by appointment by the board of county commissioners for the
unexpired term. Members shall serve without compensation for their services
but may receive such traveling expenses as the board of county
commissioners authorizes which shall be paid from any funds available for
such purpose. None of the members shall hold any other elected or appointed
office or position in the county government except that one member shall be
a member of the planning commission.
The board of zoning appeals shall annually elect one of its members as
chairperson and one of its members as vice-chairperson. The board of county
commissioners shall employ a secretary for the board of zoning appeals. The
secretary shall keep a proper record of the board's proceedings. The board
shall adopt rules in accordance with the provisions of any resolution
adopted pursuant to this act. Meetings of the board shall be held at the
call of the chairperson, and at such other times as the zoning regulations
adopted by the board of county commissioners may determine. A majority of
the board shall constitute a quorum for the transaction of business.
The board of zoning appeals shall cause a proper record to be kept of its
proceedings, showing the description of evidence presented, the findings of
fact by the board, the decision of the board, and the vote of each member
upon 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 filed in a public office designated by the board of
county commissioners and shall be a public record.
(b) The board of zoning appeals shall hold a public hearing on any
appeal or other matter referred to the board. Notice of such hearing shall
be published at least one time in the official county newspaper at least 15
days prior to the hearing. Such notice shall include the time, place, date
and subject of the hearing as well as notice to the parties in interest.
Failure to receive individual notice shall not invalidate any subsequent
action taken. Upon the hearing any party may appear in person or by agent
or by attorney. The board shall have the power to:
(1) Hear and decide appeals where it is alleged there is error in any
order, requirement, decision or determination made by an administrative
official in the enforcement of any regulations adopted pursuant to the
zoning powers herein granted. Appeals to the board may be taken by any
person aggrieved, or by any officer, department, board or bureau of the
county, or any governmental agency or body affected by any decision of the
administrative officer. Such appeal shall be taken within a reasonable
time, as provided by the zoning regulations, by filing with the board of
zoning appeals a notice of appeal specifying the grounds thereof. The
officer from whom the appeal is taken, when notified by the board of zoning
appeals or its agent, shall transmit to the board all the papers
constituting the record upon which the action appealed from was taken,
within the time period established by the rules of the board.
(2) Authorize in specific cases a variance from the specific terms of
the zoning regulations which will not be contrary to the public interest
where, due to special conditions, a literal enforcement of provisions of
the regulations will, in an individual case, result in unnecessary
hardship, and provided that the spirit of the regulations shall be
observed, public safety and welfare secured, and substantial justice done.
The board of zoning appeals shall not have the power to grant variances
regarding uses permitted within zoning districts, but shall be limited to
granting variances on matters including, but not limited to, building
height, setbacks, lot size and lot dimensions, as provided by the zoning
regulations. A request for a variance may be granted in such individual
case, upon a finding by the board of zoning appeals that all of the
following conditions have been met: (A) The variance requested arises from
such condition which is unique and which is not ordinarily found in the
same zoning classification, and is created by the zoning regulations and
not by an action or actions of the property owner or the applicant; (B) the
granting of the variance will not adversely affect the rights of adjacent
property owners or residents; (C) the strict application of the provisions
of the zoning regulations of which variance is requested will constitute
unnecessary hardship upon the property owner represented in the
application; (D) the variance desired will not adversely affect the public
health, safety, morals, order, convenience, prosperity or general welfare;
and (E) granting the variance desired will not be opposed to the general
spirit and intent of the zoning regulations.
In exercising such powers, the board of zoning appeals, in conformity
with the provisions of 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 the powers of the administrative official from whom
the appeal is taken. The board of zoning appeals shall render its decision
within 10 days of the conclusion of the hearing.
Any decision of the board of zoning appeals which is contrary to existing
zoning regulations shall not be effective until approved by the board of
county commissioners. Such decision and the record thereon shall be
submitted to the board of county commissioners within two weeks of
such decision and the board of county commissioners, within two weeks after
receipt thereof, shall approve the decision of the board of zoning appeals
or shall call for a public hearing before the board of county commissioners
for the purpose of reviewing and reconsidering such decision. The failure of
the board of county commissioners to act within the two-week period shall
constitute approval of the decision of the board of zoning appeals. The
public hearing shall be called by following the same notice requirements
specified for public hearings on matters before the board of zoning
appeals. The failure by parties in interest to receive individual notice
shall not invalidate any subsequent action taken. At such hearing any party
may appear in person or by agent or by attorney.
The board of county commissioners, in reconsidering a decision of the
board of zoning appeals, shall cause a proper record to be kept of its
proceedings, showing the description of evidence presented, the findings of
fact by the board, the decision of the board, and the vote of each member
upon 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 filed in a public office designated by the board of
county commissioners and shall be a public record.
In reconsidering a decision of the board of zoning appeals, the board of
county commissioners, after conducting the public hearing specified herein
and within a reasonable time, shall approve, modify and approve, or
overturn the decision of the board of zoning appeals.
Any person, official or governmental agency dissatisfied with any order
or determination of the board of zoning appeals or the board of county
commissioners may bring an action in the district court of the county to
determine the reasonableness of any such order or determination.
(c) The board of county commissioners may establish a scale of reasonable
fees to be paid in advance by the owner of any property at the time of
making application for an appeal or variance.
History: L. 1984, ch. 96, § 7; May 3.