Fulton Board of adjustment ordinance (§ 120-231)

(a) Board of adjustment. A board of adjustment, hereinafter called the board, is hereby created, such board to be appointed by the mayor subject to the approval of the city council. As further described below, the board of adjustment is responsible for the consideration of appeals relating to a determination by the administrative official in the enforcement of this chapter (see subsection (c)), zoning variances (see subsection (d), and conditional use permits (see subsections (e), (f), and (g)).

(1) Appointment of members and alternates. The board of adjustment shall consist of five members and two alternates, all of whom shall be residents of the city. The alternate member(s) shall act with full power as a member of the board when a member of the board is disqualified because of a conflict or is excused from serving for any other reason.

(2) Term of service. From the enactment of this chapter all newly appointed members and alternates shall be appointed for terms of five years each.

(3) Removal. All members shall be removable for cause by the appointing authority, upon written charges and after public hearings.

(4) Vacancies. Vacancies shall be filled for the unexpired term of any member whose term becomes vacant.

(5) Board chairperson and rules. The board shall elect its own chairman who shall serve for one year. The board shall adopt rules in accordance with the provisions of any ordinance adopted pursuant to RSMo 89.010—89.140, as amended.

(6) Meetings and procedures; keeping of minutes. 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 his 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 upon questions, 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 city clerk and shall be a public record. All testimony, objections thereto and rulings thereon, shall be taken down by a reporter employed by the board for that purpose.

(7) Bylaws. The board may adopt their own rules of meeting procedures consistent with this title and the applicable state statutes. The board may select such officers as they deem necessary. The chairperson, or in his/her absence the vice chairperson may administer oaths to witnesses. (8)

Recoupment of costs. The board of adjustment of the city is hereby authorized, empowered and directed to make a rule requiring all persons, firms, or corporations, other than the city, its departments or its officials in discharge of their duties, to pay all costs of actions or hearings initiated by them before the board of adjustment, and to further require that a deposit be made in an amount to be set by them to secure said costs, and the board of adjustment is authorized and directed to dismiss any action, petition or request before them if the person, firm or corporation requesting the said action fails to make the required deposit.

(9) Vote required to reverse orders effect variations, etc. The concurring vote of four members of the board shall be necessary to reverse any order, requirement, decision or determination of any such administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under any such ordinance, or to effect any variation in such ordinance.

(10) Appeals to circuit court. Any person or persons jointly or severally aggrieved by any decision of the board of adjustment, or any officer, department, board or bureau of the municipality, may present to the circuit court of Callaway County, 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 30 days after the filing of the decision in the office of the board. Upon the presentation of such petition, the court may allow a writ of certiorari, a writ issuing from a superior court calling for the records of an inferior court or to remove a case from a case below, directed to the board, to review such decision of the board, and shall prescribe therein the time within which a return thereto must be served upon the court. The allowance of the writ shall not stay proceedings upon the decision appealed from, but the court may, on application, on notice to the board and on due cause shown, grant a restraining order.

(b) Powers of the board of adjustment. The board of adjustment shall have the following powers:

(1) To 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 this chapter.

(2) To hear and decide all matters referred to it or upon which it is required to pass under this chapter.

(3) In passing upon appeals, where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of such ordinances, to vary or modify the application of any of the regulations or provisions of such ordinance relating to the use, construction or alteration of buildings or structures, or the use of land, so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done. In exercising the abovementioned power, such board may, in conformity with the provisions of this chapter, reverse or affirm wholly or partly, or may modify the order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the building inspector.

(c) Appeals to the board of adjustment.

(1)

Appeal of building inspector decisions to board of adjustment. Appeals to the board of adjustment may be taken by any person aggrieved, or by any officer, department, board or bureau of the municipality affected by any decision of the building inspector. Such appeal shall be taken within a reasonable time, as provided by the rules of the board, by filing with the building inspector and with the board a notice of appeal specifying the grounds thereof. The building inspector shall forthwith transmit to the board all the papers constituting the record upon which the action appealed from was taken.

(2) Staying of further action pending appeal. An appeal stays any further action on activities covered by the permit, unless the building inspector certifies to the board, after the notice of appeal shall have been filed with him or it, that, by reason of facts stated in the certificate, a stay would, in his opinion, cause imminent peril to life or property. In such case, specific actions pursuant to the permit as shall be deemed necessary by the building inspector to prevent peril to life or property shall not be stayed otherwise than by restraining order, which may be granted by the board or by a court of record, on an application or notice to the building inspector and on due cause shown. The board shall fix a reasonable time for the hearing of the appeal, give public notice thereof, as well as due notice to the parties in interest, and decide the same within a reasonable time. Upon the hearing, any party may appear in person or by agent or by attorney.

(d) Zoning variances. A variance is a relaxation of the requirements of this title as applicable to a particular lot, structure or use in relation to placement, setbacks, lot coverage, and height requirements.

(1) Authorization. In order that the spirit of this zoning code be observed, and substantial justice done, the zoning board of adjustment shall, upon application or appeal determine and vary the terms thereof by making a finding of fact that, owing to special conditions, a literal enforcement of the provisions of this chapter would result in unnecessary hardship.

(2) In presenting any application for a variance, the applicant shall clearly establish that, as a practical matter, the property cannot be used for a permitted use without coming into conflict with restrictions of the zoning chapter. The following five criteria shall be considered by the board of adjustment:

a. There is a demonstrated unnecessary hardship which is defined by the following criteria:

1. The land in question cannot yield a reasonable return if used only for a use permitted in the zone in which it is located;

2. The owner's plight is due to unique and not to general neighborhood considerations; and

3. The granting of the variance would not alter the essential character of the locality.

b. Relief is necessary because of the unique character of the property;

c. Granting the variance will not destroy the preservation of the comprehensive plan;

d. Granting the variance will result in substantial justice.

e.

The applicant has met the burden of proof that the harm complained of in the variance application is not the result of self-inflicted hardship.

(e) Conditional use permits. Power to grant conditional use permit. The board of adjustment has the power to hear and decide upon applications for conditional use permits specifically listed in the district regulations of this chapter. Before authorizing the issuance of such a conditional use permit, the board may impose such conditions as will, in the board's judgment, ensure that:

(1) The establishment, maintenance or operation of the conditional use will not be detrimental to or endanger the public health, safety, morals, comfort or general welfare;

(2) The conditional use will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted, nor substantially diminish and impair property values within the neighborhood;

(3) The establishment of the conditional use will not impede the normal and orderly development and improvement of surrounding property for uses permitted in the district;

(4) Adequate utilities, access roads, drainage and/or other necessary facilities will be provided;

(5) The conditional use shall in all other respects conform to the applicable regulations of the district in which it is located and the board shall find that there is a public necessity for the conditional use.

(f) Application process for conditional use permits and zoning variances. The application process for conditional use permits and variances to the zoning code shall be as follows:

(1) An application shall be submitted to the zoning official at least four weeks prior to a regular meeting of the board of adjustment, with the following information:

a. An application form, copies of which are available in the zoning official's office. For conditional use permit applications, the application form shall include a statement from the applicant as to why a conditional use permit is needed. For zoning variances, the application form shall include a statement from the applicant as to why a variance is needed and how the five criteria in subsection 120-231(d)(2) have been met.

b. A check made payable to the city in an amount determined by the city council found on the city's schedule of fees. Fees will include postage costs of mailing certified hearing notices to the first ten property owners within 185 feet of the proposed rezoning. Applicant will be charged for all postage costs of mailing certified hearing notices thereafter.

c. For zoning variances, an accurate legal description shall be provided. For conditional use permits, the street address and parcel identification number shall be provided.

d. The city will provide the following documents if applicable:

1. Complete dimensions of property(ies) for which rezoning is requested. 2.

Names of all owners or property within 185 feet of the boundary of area(s) to be considered for rezoning.

3. Present zoning and generalized land use on tract(s) in question and all adjacent tracts.

4. The size and location of all exiting utilities and easements, including storm sewers across the particular tract(s) of land, and indication of how property is to be served if utilities are not available on the tract(s).

5. All adjacent streets and alleys, including names and width of dedications. 6 North point, scale, and date.

7. Any other information requested by the zoning official.

(2) After the zoning official has determined that the application and supporting documents meet all application requirements, a public hearing will be set by the zoning official for the board of adjustment at their next regular meeting.

(3) At least 15 days prior to the public hearing before the board of adjustment, the zoning variance or conditional use permit is advertised in a daily newspaper, and subject property is posted by the zoning official.

(4) The applicant and all owners of property within 185 feet of the subject property shall be notified by certified mail of the time and place of the public hearing before the board of adjustment.

(5) At the meeting of the board of adjustment at which the public hearing is held, all interested parties should be present.

(6) Upon conclusion of the public hearing, the board of adjustment shall act upon the conditional use permit or zoning variance as follows:

a. Conditional use permits. The board of adjustment shall make a recommendation to the city council to approve, deny, or approve with conditions on every conditional use permit request after the public hearing. The board may provide such conditions or restrictions upon the construction, location and operations for a conditional use, including, but not limited to provisions for the protection of adjacent property, the expiration of such conditional use after a specified period of time, off-street parking and loading, as may be deemed necessary to secure the general objectives of this zoning code, and to reduce injury to the value of the property in the neighborhood.

b. Action by the city council. The city council shall act on every conditional use permit application, taking into particular account the recommendation(s) and/or conditions of approval of the board of adjustment.

c. Zoning variances. The board of adjustment shall render a decision on every variance request after the public hearing. In accordance with state law, the board of adjustment shall specify the terms of relief granted (if any) in one statement and their findings of fact shall clearly indicate the board's reasons for granting or denying any requested variance.

(7) Unless a decision is otherwise appealed per subsection 120-231(a)(10) appeals, the board of adjustment determination on zoning variances shall be final.

(g) Transfer of conditional use permit. A conditional use permit is issued for a specified zoning lot or lots and shall only be allowed to be transferred to another occupant or owner, as follows:

(1) All requests for transfers must be filed on an application form available through the appropriate city department.

(2) Substantial transfers. All substantial transfers shall be subject to review and approval by the board of adjustment under the terms of section 120-231(g) substantial transfers include, but are not limited to:

a. A transfer involving a more intensive use on the subject property;

b. Other changes deemed to represent a substantial change by the zoning administrator and public works director.

c. The trend of development in the area surrounding the subject property necessitates further review of the proposed conditional use.

(3) Unsubstantial transfers. Unsubstantial transfers will be subject to review and approval by the building official and public works director. Unsubstantial transfers represent minor changes from the provisions of the originally approved special use permit and may include:

a. Transfer of ownership not effecting the intensity of the use;

b. Other changes deemed to represent an unsubstantial change by the building official and public works director.

(h) Return of application materials. The board shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies thereof, or of such portions thereof as may be called for by such writ. The return shall concisely set forth such other facts as may be pertinent, and material to show the grounds of the decision appealed from, and shall be verified. If, upon the hearing, it shall appear to the court that testimony is necessary for proper disposition of the matter, it may take additional evidence or appoint a referee to take such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall he made. The court may reverse or affirm, wholly or partially, or may modify the decision brought up for a review. Costs shall not be allowed against the board unless it shall appear to the court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from.