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 providefor the establishment of a board of zoning appeals. The board of zoningappeals shall consist of not less than five nor more than nine members whoshall be appointed by the board of county commissioners. All of the board'smembers shall be residents of the unincorporated area of the county.

      The members first appointed by the board of county commissioners shall beappointed for terms of one, two and three years. The terms shall be dividedequally or as nearly equally as possible between members. Thereaftermembers shall be appointed for terms of three years each. All members shallserve until their successors are appointed and qualified. Vacancies shallbe filled by appointment by the board of county commissioners for theunexpired term. Members shall serve without compensation for their servicesbut may receive such traveling expenses as the board of countycommissioners authorizes which shall be paid from any funds available forsuch purpose. None of the members shall hold any other elected or appointedoffice or position in the county government except that one member shall bea member of the planning commission.

      The board of zoning appeals shall annually elect one of its members aschairperson and one of its members as vice-chairperson. The board of countycommissioners shall employ a secretary for the board of zoning appeals. Thesecretary shall keep a proper record of the board's proceedings. The boardshall adopt rules in accordance with the provisions of any resolutionadopted pursuant to this act. Meetings of the board shall be held at thecall of the chairperson, and at such other times as the zoning regulationsadopted by the board of county commissioners may determine. A majority ofthe board shall constitute a quorum for the transaction of business.

      The board of zoning appeals shall cause a proper record to be kept of itsproceedings, showing the description of evidence presented, the findings offact by the board, the decision of the board, and the vote of each memberupon each question, or if absent or failing to vote, indicating such fact,and shall keep records of its examinations and other official actions, allof which shall be filed in a public office designated by the board ofcounty commissioners and shall be a public record.

      (b)   The board of zoning appeals shall hold a public hearing on anyappeal or other matter referred to the board. Notice of such hearing shallbe published at least one time in the official county newspaper at least 15days prior to the hearing. Such notice shall include the time, place, dateand subject of the hearing as well as notice to the parties in interest.Failure to receive individual notice shall not invalidate any subsequentaction taken. Upon the hearing any party may appear in person or by agentor by attorney. The board shall have the power to:

      (1)   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 any regulations adopted pursuant to thezoning powers herein granted. Appeals to the board may be taken by anyperson aggrieved, or by any officer, department, board or bureau of thecounty, or any governmental agency or body affected by any decision of theadministrative officer. Such appeal shall be taken within a reasonabletime, as provided by the zoning regulations, by filing with the board ofzoning appeals a notice of appeal specifying the grounds thereof. Theofficer from whom the appeal is taken, when notified by the board of zoningappeals or its agent, shall transmit to the board all the papersconstituting 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 ofthe zoning regulations which will not be contrary to the public interestwhere, due to special conditions, a literal enforcement of provisions ofthe regulations will, in an individual case, result in unnecessaryhardship, and provided that the spirit of the regulations shall beobserved, public safety and welfare secured, and substantial justice done.The board of zoning appeals shall not have the power to grant variancesregarding uses permitted within zoning districts, but shall be limited togranting variances on matters including, but not limited to, buildingheight, setbacks, lot size and lot dimensions, as provided by the zoningregulations. A request for a variance may be granted in such individualcase, upon a finding by the board of zoning appeals that all of thefollowing conditions have been met: (A) The variance requested arises fromsuch condition which is unique and which is not ordinarily found in thesame zoning classification, and is created by the zoning regulations andnot by an action or actions of the property owner or the applicant; (B) thegranting of the variance will not adversely affect the rights of adjacentproperty owners or residents; (C) the strict application of the provisionsof the zoning regulations of which variance is requested will constituteunnecessary hardship upon the property owner represented in theapplication; (D) the variance desired will not adversely affect the publichealth, safety, morals, order, convenience, prosperity or general welfare;and (E) granting the variance desired will not be opposed to the generalspirit and intent of the zoning regulations.

      In exercising such powers, the board of zoning appeals, in conformitywith the provisions of this act, may reverse or affirm, wholly or partly,or may modify the order, requirement, decision or determination, and tothat end shall have all the powers of the administrative official from whomthe appeal is taken. The board of zoning appeals shall render its decisionwithin 10 days of the conclusion of the hearing.

      Any decision of the board of zoning appeals which is contrary to existingzoning regulations shall not be effective until approved by the board ofcounty commissioners. Such decision and the record thereon shall besubmitted to the board of county commissioners within two weeks ofsuch decision and the board of county commissioners, within two weeks afterreceipt thereof, shall approve the decision of the board of zoning appealsor shall call for a public hearing before the board of county commissionersfor the purpose of reviewing and reconsidering such decision. The failure ofthe board of county commissioners to act within the two-week period shallconstitute approval of the decision of the board of zoning appeals. Thepublic hearing shall be called by following the same notice requirementsspecified for public hearings on matters before the board of zoningappeals. The failure by parties in interest to receive individual noticeshall not invalidate any subsequent action taken. At such hearing any partymay appear in person or by agent or by attorney.

      The board of county commissioners, in reconsidering a decision of theboard of zoning appeals, shall cause a proper record to be kept of itsproceedings, showing the description of evidence presented, the findings offact by the board, the decision of the board, and the vote of each memberupon each question, or if absent or failing to vote, indicating such fact,and shall keep records of its examinations and other official actions, allof which shall be filed in a public office designated by the board ofcounty commissioners and shall be a public record.

      In reconsidering a decision of the board of zoning appeals, the board ofcounty commissioners, after conducting the public hearing specified hereinand within a reasonable time, shall approve, modify and approve, oroverturn the decision of the board of zoning appeals.

      Any person, official or governmental agency dissatisfied with any orderor determination of the board of zoning appeals or the board of countycommissioners may bring an action in the district court of the county todetermine the reasonableness of any such order or determination.

      (c)   The board of county commissioners may establish a scale of reasonablefees to be paid in advance by the owner of any property at the time ofmaking application for an appeal or variance.

      History:   L. 1984, ch. 96, § 7; May 3.