Chapter 11.28 : Board of Adjustment


11.28.010 Creation
11.28.020 Officers
11.28.030 Powers and Duties
11.28.040 Procedure
11.28.050 Hearing and Notice
11.28.060 Approval
11.28.070 Conditions of Approval
11.28.080 Appeals from the Board of Adjustment
11.28.090 Time Decision Effective

11.28.010 Creation. The Board of Adjustment is hereby established to act on variance applications as herein detailed. Said board shall consist of seven members appointed by the mayor for three-year terms (with staggering terms) and subject to confirmation by the Council. **updated by Ord. 96-12**

11.28.020 Officers. At the first meeting each year, the Board shall appoint one of its members to serve as chairperson and one member to serve as vice chairperson. The City Building Inspector shall be at the disposal of the Board to receive and process applications of appeal and to give advice to said Board.

The Board's office shall be that of the City and all files of said Board shall be held therein.

11.28.030 Powers and Duties. The Board shall set its operating rules in accordance with laws of the State of Montana and shall have the following powers:

1). To hear appeals 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 ordinance or of any ordinance adopted pursuant hereto.

2). To authorize upon appeal in specific cases such variance from the terms of this ordinance as shall not be contrary to the public interest, where owing to special conditions a literal enforcement of the provisions of this title will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done. An unnecessary hardship shall not be construed to be an event or situation caused or created by the applicant or previous property owners.

More specifically, the Board shall, after public notice and hearing, conditionally approve, deny, or approve any request to modify the following requirements outlined above.

a). Setback Requirements
b). Yard Requirements
c). Area Requirements
d). Height Requirements
e). Parking Requirements
f). Loading Requirements

3). The concurring vote of four members of the Board shall be necessary to reverse any order, requirements, decisions, or determinations of any administrative official, or to decide in favor of the application on any matter upon which it is required to pass under this title, or to affect any variation of this title.

11.28.040 Procedure. Written applications for appeals or modifications (variance) shall be filed in the Office of the Building Inspector. Notwithstanding any other provisions of this title, the uniform fee to be established by the City Council as set forth in Chapter 11.27.070 shall be paid to the City upon filing of each application for the purpose of defraying expenses related to the proceedings. No application will be regarded as having been filed until such fee has been paid.

The Board shall cause to be made such investigation of facts bearing on the application as will provide necessary information to assure that the action on each such application is consistent with the intent and purpose of this title. During time of appeal, all construction shall cease and shall not commence until such time of approval by the Board of Adjustment.

11.28.050 Hearing and Notice. There shall be a hearing for each application of appeal or modification. Said hearing shall be held at an appointed time and place within 45 days of the date of application. Testimony shall be taken by the Board from persons interested in said application. Notice of hearing shall be published once in a newspaper of general circulation within the City at least ten days prior to the hearing date. A notice will be posted on the proposed site of the variance for 10 days prior to the hearing; giving notice than an application for a variance has been filed on the property, giving the hearing date and hearing location, and a telephone number for further information.

11.28.060 Approval. In approving applications of appeal or modification, the Board shall designate such lawful conditions as will secure substantial protection for the public health, safety and general welfare, and shall find as follows:

1). Such modifications will not be inconsistent with the intent and purpose of this title and/or any adopted master plan.

2). That strict compliance with the provisions of this title would create unnecessary hardship or unreasonable situation on a particular property due to unusual or extreme topography, unusual shape of the property, or the prevalence of similar conditions in the immediate vicinity of the property.

3). That such modifications will have minimal adverse affect on abutting properties or the permitted uses thereof.

4). That the lawful conditions stated in the approval are deemed necessary to protect the public health, safety, morals, and general welfare, which provisions may include:

a). A time period within which the proposed structures shall be erected.

b). Requiring landscaping and maintenance thereof.

c). Requiring the surfacing and marking of off-street parking and loading areas.

d). Any other conditions as will make possible the development of the City in an orderly and efficient manner and in conformity with the intent and purpose set forth in this section.

11.28.070 Conditions of Approval. Any approval under this chapter shall be subject to the terms of the conditions designated in connection herewith.

11.28.080 Appeals for the Board of Adjustments. Any person or persons, jointly or severally, aggrieved by any decision of the Board of Adjustment, or any taxpayer, or any officer, department, board, or bureau of the municipality may present to a court of record 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.

11.28.090 Time Decision Effective. The decision of the Board of Adjustment shall be final except as provided in Section 11.28.080, and if a building permit or occupancy permit is not obtained for the subject property within six months from the date of the Board's decision, the variance shall be automatically canceled and become null and void.