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HomeMy WebLinkAboutZBOA Minutes 1982-02-23 Regular MINUTES OF A REGULAR MEETING OF THE ZONING BOARD OF ADJUSTMENT • Ill February 23, 1982 Regular Members Present: Alternate Members Present: Business Transacted: was sworn in as a Board member for the meeting with no objections. The first order of business was to elect a permanent chairman. suggested continuing with an "acting" situation or rotating the chair, especially since there were only three regular members present at the meeting. The members discussed the merits of having a permanent chairman and vice chairman. It was agreed to wait until all regular members are in attendance (or at least four out of five) before a decision is made. For the record, the Board of Adjustment will meet on the fourth Tuesday of every month at 7:00 p.m. in the Council room, unless otherwise noted. Any posted memo or notice should include this information. Bobbie Henry sent apologies to the Board regarding a misunder- standing in which it was stated that Elvia Salyer would act as secretary for the Board. She will not act as secretary. Ms. Henry agreed to furnish a secretary. The tapes of the meeting should be kept and not erased until the minutes are read at the next meeting of the Board. Each member and alternate member should receive a copy of the minutes of each meeting. moved that Ed Dykes continue as acting chairman until a permanent chairman is established. The motion was seconded, voted, and approved. -1- The meeting was then turned over to John Olson, City Attorney, who introduced Bob McConnel, an associate member of his law firm. Mr. Olson discussed procedures and statutes which provide for a Board of Adjustment (1O11.A - 1O11.J). He distinguished between the duties of a Board of Adjustment and a Zoning Commission. A Zoning Commission serves to recommend to City Council adoptions or changes in zoning ordinances. They have no authority other than to make recommendations to City Council, and are usually not involved in court cases and law suits. A Board of Adjustment is a quasi-judicial body. It is the final authority as far as the city is concerned and can be involved in court actions. The Board of Adjustment serves three functions: 1) It allows the granting of variances from the terms of an ordinance when it can be shown that there is undue hardship involved, etc. A variance usually covers situations not thought of during the writing of the ordinance (exceptions to the general rule). The variance should be consistent with the general scheme of the zoning ordinance or master plan of the city. 2) It grants special exceptions (not as prevalent as variances) . A special exception exists when an ordinance states that if certain conditions are met, a variance will be granted. Special exceptions are planned for. Lot size is the most typical example of special exception provisions. 3) It considers appeals. Statute provides for an official to implement the terms of zoning ordinances, usually a building official (who grants permits, etc. ) . This administrative official insures that all building plans comply with codes, ordinances, etc. If someone disagrees with his interpreta- tion of the zoning ordinance, he may appeal to the Board and the Board will be the deciding official. The appeal should be similar to a court hearing. Once the Board has decided a case, the applicant may appeal to a district court in the county. (This also applies to variance and special exception cases. ) The courts generally will not -2- • overrule a Board's decision unless they feel the decision was totally without merit, arbitrary, or capricious. IllThe Board discussed the differences between appeals, variances, and special exceptions and the advisability of having legal counsel in any case. Mr. Olson also stated that he felt it was generally not advisable to tape hearings, but better to have written minutes prepared by a secretary or reporter. The members discussed reasons for using a tape recorder and decided that tapes would not normally be made of meetings, except in the absence of a secretary. stated that in most past appeal cases, the applicants did not disagree with the building official's inter- pretation of the ordinance, but they appealed to the Board request- ing a variance for their particular situation. Mr. Olson said that cases of this nature would not be the same as an appeal where there is an actual difference of opinion as to what the ordinance actually says. The Board can only rule on cases within its three areas of authority. There must always be at least four members present to vote on any matter. Meetings of the Board are subject to the requirements of the Open Meetings Act. Written notice must be posted 72 hours in advance as well as an agenda of items for discussion. Meetings can go into closed executive session. If this occurs, members should • note the statutory provision by which the Board is retiring to executive session. If the Board retires to executive session to discuss pending litigation, the lawyer must be present. The Board may adopt rules or procedures for the conduct of meetings. Mr. Olson said he would provide examples. These provide for organi- zation of the Board, officers, etc. The elected secretary does not necessarily have to be the person responsible for preparing minutes, but should certify documents, attest signatures, etc. It is permis- sible to have someone from outside the Board sit in and take notes of the proceedings for minutes. The chairman is the presiding officer 111. of the Board. The vice chairman acts in the absence of a chairman. The secretary is the official custodian of the records. It can be provided that the city secretary keep the records of Board meetings. -3- Mr. Olson recommended that the Board have written rules of procedure, particularly for filing variances, conducting meetings, etc. suggested that the present procedures be revised to clarify requirements. suggested that this be covered at the next meeting. The members discussed meeting dates, notification requirements for appeals, and requirements for posting meeting notices, etc. Mr. Olson advised that all records of the Board are public record and must be made available, if requested. Agendas should be as specific as possible and clear enough so that any citizen could understand what will be occurring at the meeting. Sufficient information should be included for all variance requests, etc. , so that it will be clear as to what is involved. Rules or procedures are needed which specify what a motion should include. Minutes should be specific as to substance, and as brief and to the point as possible. All motions should be "ver batim." The vote should be recorded. All those present at the meeting should be listed, not just Board members (a sign-in sheet was suggested) . Mr. Olson suggested that it would be a good idea to have people state whether they were "pro" or "con" an issue or appeal when they sign in. The Board can establish their own rules, within reason, for people appearing or speaking before the Board provided the rules do not obstruct the open meetings provisions. Members dis- cussed interested parties' rights to be heard at meetings and appellants' rights in calling citizens as witnesses. The Board has the authority to charge a fee for application for a variance, etc. The procedures should state a timetable for filing appeals, as well as times for posting notices, notifying interested parties, etc. stated that the Board generally requires the applicant (for a variance) to submit letters by neighbors agreeing to the variance. _ stated that popular -4- or personal opinion should have no bearing on the Board's decision. The Board should base its decision on the elements or guidelines for determination of a variance, and the spirit of the ordinance. The order of business at meetings is entirely at the Board's discretion. Some guidelines are necessary; however, to keep the meetings from getting out of hand. Any action of the Board requires concurring vote (four affirmative votes) . Members should be certain that the Mayor is aware that alternates are being used. There should be no more than five members participating on the Board at meetings. All members should be sworn in. Any notary public can perform the swearing in, or the chairman of the body which is being served (City Council) may perform the swearing in. Alternates should take an oath. Alternate members should also be declared as members of the Board for that particular meeting, and this should be reflected in the minutes. The Mayor should be advised when alternates are being used. The chairman should designate which alternate members should serve on the Board in order to limit the Board to five participating members (in case there are too many present) . Alternates should be designated as first, second, third, etc. , in order to clarify which alternates should serve and which should not when more than needed are in attendance. A procedure should be established to determine in advance which regular members will be in attendance and how many alternates are needed, and then notify the Mayor. The City Manager may substitute for the Mayor in this instance and appoint the alternates, etc. Mr. Olson suggested that by home rule statutes, the Board could even designate the chairman as the person who appoints alternates. stated that it has been the practice in the past to request members to notify his office if they will attend or be absent, on the Friday prior to the meeting, so alternates may be requested if necessary. 111. -5- Mr. Olson agreed to provide written orders for granting or denial of a variance, granting or denial of a modification, granting or denial of a special exception, and order for appeal. These are fill-in-the-blank forms and have recitations and statutory elements for granting, etc. When an appeal is taken for a decision by the Board, the statute says "ten days from the time the official papers are filed with the secretary." Currently, the time table does not begin to run until after a month because there is no official record until then. These forms (as provided by Mr. Olson) can be used as a formal order of the Board. They can be signed, attested, and filed immediately in the secretary's office the next morning so that the appellant's time table can begin to run. asked Mr. Olson to explain the difference between special exception and variance, and specific use. Mr. Olson explained that a variance could not be used to change the meaning or substance of an ordinance. A special exception, by ordinance, states the facts that must exist before variance is granted. It is a matter of law. Specific use is a rezoning. The group discussed whether churches are covered by municipal regulations. Mr. Olson explained that the law has recently been changed such that churches are covered by zoning ordinances, etc. The members discussed commercial and residential zoning, specifically a residence located in a commercial zone and variances to that effect. Mr. Olson suggested that the members obtain and study a copy of the city's master plan. Mr. Olson turned the meeting over to Mr. McConnel, who dis- cussed elements that should be considered when considering a variance or special exception and appeal. If an affected party disagrees with a determination of the Board, he can go to the court house to obtain a by which the court requests records of the proceedings. It is recommended that certified copies of these records be sent rather than original records. -6- On a variance, the court will see if there was substantial evidence in the proceedings to support the action of the Board. IllIf so, the court should uphold the Board's decision. It can accept more evidence in order to make its determination. A variance cannot change the zoning classification; it is only for cases of undue hardship upon a property owner. Opinions of neighbors or other people do not constitute substantial evidence. asked for an explanation of public interest. Public interest is that which Council determines is in the best interest from the standpoint of health, safety, and welfare (this does not mean popular opinion) . To grant a variance, there must be some evidence of hardship. It cannot be a self-imposed hardship. Economic hardship, standing alone, does not constitute undue hardship. asked about liability on the part of the Board for a decision it makes regarding the granting of a variance. Mr. Olson explained that the Board probably would not be subjected to liability as a result of granting a variance; however, if a variance was refused, and denial was found to be arbitrary or capricious, there could be damages leveled against the city. The Board should always try to determine that a hardship really exists for a determination of variance; for example, in cases of accidental encroachment over set-backs, etc. , where construction has already progressed (deceit not included) . The members discussed hypothetical situations which would or would not be considered undue hardship, as well as past instances where variance decisions were made. asked what the extent of liability would be for poor judgement (on the part of the Board). Mr. Olson explained that he did not think the Board could expose themselves to liability by the granting of a variance. Decisions of the Board should not be precedent-setting; that 111. is, a decision for one area or one situation may not be the same as for another situation. Decisions should be consistent, however. -7- Although the Board has no authority in the granting of liquor licenses, it may, through zoning, control the location of liquor stores, etc. Board members are appointed for two-year terms. They can be reappointed at the end of a term and there is no limit to the number of consecutive terms served. A member must be sworn in again for each new term. Mr. Olson explained that technical details and formalities are of great importance when dealing with law suits, etc. Mr. Olson suggested that the Board extend the period of com- pliance for signs which are, after eight years, in good shape or still relatively new. The life of the sign must be determined and considered by the Board in granting extension, etc. Life of the sign is determined by the materials used in its construction and other factors, and involves careful study. explained that this would be more of a problem with a sign erected before the sign ordinance went into effect, but still in good condition after eight years, than for signs constructed since the ordinance. Mr. Olson explained that owners of non-conforming signs in existence at the time the ordinance went into effect were required to obtain non-conformance permits. Sign owners who did not obtain such a permit are liable for action by the Board. The meeting was adjourned. -8-