BOARD OF ADJUSTMENT

Section 1001 Establishment of Board of Adjustment

A Board of Adjustment is hereby established. Said Board shall consist of five (5) members. Members of the Board shall be appointed by the Village of Misenheimer Village Council. All Board members shall be appointed for three (3) year staggered terms. Terms shall begin on July 1 and expire on June 30. 

The Village of Misenheimer Village Council shall also appoint one (1) alternate member to serve on the Board of Adjustment in the absence, for any cause, of any regular member. The alternate member shall be appointed for a three (3) year term.

Section 1002 Proceedings of the Board of Adjustment

1002.1 The Board shall elect a chairman and vice-chairman from among its members, who in turn will appoint a secretary and such other subordinates as may be authorized by the Village Council. 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 Vice-Chairman may administer oaths. 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 every question or, if absent or failing to vote, indicating such fact, and also keep records of its examinations and other official action.

1002.2 The concurring vote of four (4) members of the Board of Adjustment shall be necessary to reverse any order, requirement, decision or determination of the Zoning Enforcement Officer, or to decide in favor of the applicant any matter on which it is required to pass under the zoning ordinance or to effect any variation in such ordinance.
 
1002.3 An appeal to the Board may be taken by any person, firm, or corporation aggrieved, or by any village officer, department, board or agency affected by any decision of the Zoning Enforcement Officer based in whole or in part upon the provisions of this ordinance. Such appeal shall be taken within such time as shall be prescribed by the Board of Adjustment by general rule by filing with the Zoning Enforcement Officer a notice of appeal and specifying the grounds thereof. The Zoning Enforcement Officer shall forthwith transmit to the Board of Adjustment all papers constituting the record upon which the action appealed from was taken. An appeal stays all proceedings in furtherance of the action appealed from unless the Zoning Enforcement Officer certifies to the Board of Adjustment after the notice of appeal shall have been filed with him that, by reason of the facts stated in the certificate, a stay would, in his opinion, cause imminent peril to life or property, in which case proceedings shall not be stayed other wise than by a restraining order, which may be granted by the Board of Adjustment or by a court of record, on application, on notice to the officer from whom the appeal is taken and on due cause shown.

1002.4 Any member(s) of the board who declares that a potential conflict of interest may exist with respect to any petition or application before the Board may be excused and replaced by an alternate. Impermissible conflicts include, but are not limited to, a member having a fixed opinion prior to hearing the matter that is not susceptible to change, undisclosed ex parte communications, a close familial, business, or other associational relationship with an affected person, or a financial interest in the outcome of the matter. If an objection is raised to a member’s participation and that member does not recuse himself or herself, the remaining members shall by majority vote rule on the objection.

Section 1003 Powers and Duties of the Board of Adjustment

1003.1 Administrative review. To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by the Zoning Enforcement Officer in the enforcement of this ordinance.
 
The Board may interpret zoning maps, pass upon disputed questions of lot lines or district boundary lines, and hear and decide all matters referred to it or upon which it is required to pass under the zoning ordinance.

1003.2 Variances. To authorize upon appeal in specific cases such variances from the terms of this ordinance as will not be contrary to the public interest where, owing, to special conditions, a literal enforcement of the provisions of this ordinance would result in unnecessary hardship.
 
A variance from the terms of this ordinance shall not be granted by the Board of Adjustment unless and until:

(A) A written application for a variance is submitted demonstrating:

(1) 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) That a literal interpretation of the provisions of this ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this ordinance;

(3) That said circumstances do not result from the actions of the applicant;

(4) That granting the variance requested will not confer on the applicant any special privilege that is denied by the ordinance to other lands, structures, or buildings in the same district;

(5) That no non-conforming use of neighboring land, structures, or buildings in the same district and no permitted use of land, structures or buildings in other districts will be considered grounds for the issuance of a variance.

(B) The Board of Adjustment shall make findings that the requirements of Subsection 1003.2A have been met for a variance, as well as the following:

(1) The Board of Adjustment shall make a finding that the reasons set forth in the application justify the granting of the variance and that the variance is the minimum one that will make possible the reasonable use of the land, building or structure.

(2) The Board of Adjustment shall further make a finding that the granting of the variance will be in harmony with the general purpose and intent of this ordinance, and will not be injurious to the neighborhood, or other wise detrimental to the public welfare.

(C) In granting any variance, the Board of Adjustment may prescribe appropriate conditions and safeguards in conformity with this ordinance. Violation of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation of this ordinance and punishable under Section 905 of this ordinance.

(D) Under no circumstances shall the Board of Adjustment grant a permanent variance to allow a use not permissible under the terms of this ordinance in the district involved, or any use expressly or by implication prohibited by the terms of this ordinance in said district.

Section 1004 Decision of the Board of Adjustment

In exercising the above-mentioned powers, the Board of Adjustment may, so long as such action is in conformity with the terms of this ordinance, reverse or affirm, wholly or in part, or may modify any order, requirement, decision or determination as ought to be made, and to that end shall have the powers of the administrative officials from whom the appeal is taken.

Section 1005 Duties of the Zoning Enforcement Officer, Board of Adjustment, Courts and Village Council Members on Matters of Appeal

It is the intention of this ordinance that all questions arising in connection with the enforcement of this ordinance shall be presented first to the Zoning Enforcement Officer and to the Village of Misenheimer and that such questions shall be presented to the Board of Adjustment only on appeal from the Zoning Enforcement Officer. From decision of the Board of Adjustment, recourse shall be had to courts as provided by law. It is further the intention of this ordinance that the duties of the Village Council in connection with the ordinance shall not include the hearing and passing upon disputed questions that may arise in connection with the enforcement thereof, but that the procedure for determining such questions shall be as herein set out in this ordinance, and that the duties of the Village Council in connection with this ordinance shall be only the duty of considering and passing upon any proposed amendments or repeal of this ordinance as provided by law.