§ 109-21. Board of adjustment.

The board of adjustment shall consist of five members each to be appointed by the council for the term of five years.

(1)

Rules, meeting, general procedures. The board shall adopt rules of procedure in accordance with the provisions of this chapter. The board shall elect its own chair, who shall serve for one year. The board may meet at the call of the chair and at such other times as the board may determine. The chair, or in the chair's absence, the acting chair, may administer oaths and compel the attendance of witnesses. All meetings of the board shall be open to the public and the presence of three members shall constitute a quorum. The board shall keep minutes of its proceedings, showing 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 immediately filed in the office of the board and shall be a public record.

(2)

Jurisdiction, powers. The board may in appropriate cases and subject to appropriate conditions and safeguards make special exceptions to the terms of this chapter in harmony with its general purpose and intent and in accordance with the rules herein contained and provide that any property owner aggrieved by the action of the council in the adoption of such regulations and restrictions may petition the board directly to modify regulations and restrictions as applied to such property owners. The board shall have the following powers and duties:

a.

To hear and decide appeals where it is alleged there is an error in any order, requirements, decision, or determination made by the administrator in the enforcement of this chapter.

b.

To authorize upon appeal in specific cases such variance from the terms of the chapter as will not be contrary to the public interest, where owing to special conditions a literal enforcement of the provisions of the chapter will result in unnecessary hardship, and so that the spirit of this chapter shall be observed and substantial justice done. Special conditions shall include, but not be limited to, a property owner who can show that the property was acquired in good faith and where by reason of exceptional narrowness, shallowness, or shape of a specific piece of property, or where by reason of exceptional topographical conditions or other extraordinary or exceptional situations the strict application of terms of this chapter actually prohibits the use of his property in a manner reasonably similar to that of other property in the district.

c.

Specifically authorized to permit the extension of a district where the boundary line of a district divides a lot in a single ownership as shown of record or by existing contract or purchase at the time of the original passage of the ordinance from which this chapter is derived, but in no case shall extension of the district boundary line exceed 40 feet in any direction.

(3)

The board, in making an exception to the chapter, shall be guided by the general rule that the exceptions shall by their design, construction, and operation adequately safeguard the health, safety, and welfare of the occupants, of adjoining and surrounding property; shall not impair an adequate supply of light and air to adjacent property; shall not increase congestion in the public streets; shall not increase public danger of fire and safety; and shall not diminish or impair established property values in surrounding areas.

(4)

Appeals.

a.

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

b.

An appeal stays all proceedings in furtherance of the action appealed from, unless the administrator certifies to the board, after notice of appeal shall have been filed with the administrator, that by reason of the facts stated in the certificate a stay would, in the administrator's opinion, cause imminent peril to life or property. In such case proceedings shall not be stayed otherwise than by a restraining order which may be granted by the board or by a court of record on application of notice to the administrator and on due cause shown.

c.

The board, giving a reasonable time, shall fix a time, date, and place for the hearing on the appeal and shall publish notice of the public hearing upon the appeal in a paper of general circulation within the city at least 15 days, but not more than 30 days before said date of public hearing. The board shall also notify by mail all property owners included in the proposed appeal and all adjacent property owners as found in the county assessor's records of the scheduled hearing. The notice of hearing shall be mailed at least ten days prior to the hearing and shall contain a description of the property in question and a description of the proposed action.

d.

At the hearing, any party may appear in person or by agent, or by attorney. Before an appeal is filed with the board, the appellant shall pay to the clerk to be credited to the general fund of the city, the cost of publishing the notice and the administrative costs of the appeal as set by the council.

e.

In exercising the above-mentioned powers, the board may, in conformity with the provisions of law, reverse or affirm, wholly or partly, or modify the order, requirement, decision, or determiner as it believes proper, and to that end shall have the powers of the administrator. The concurring vote of three of the members of the board shall be necessary to reverse any order, requirement, decision, or determination of the administrator, or to decide in favor of the applicant on any matter upon which it is required to pass under this chapter; provided, however, that the action of the board shall not become effective until after the resolution of the board, setting forth the full reason for its decision and the vote of each member participating therein, has been entered in the minutes. Such resolution, immediately following the board's final decision shall be filed in the office of the clerk, open to public inspection, and shall be published in the official newspaper of the city.

(Prior Code, § 121.21)

State law reference

Board of adjustments and appeals thereto, I.C.A. § 414.7 et seq.