Chapter 17.100
BOARD OF ADJUSTMENT
Sections:
17.100.010 Appointment–Term of Office
17.100.040 Organization–Meetings–Rules and Regulations
17.100.050 Assistance from City Departments
17.100.060 Appeals, Notices and Hearings
17.100.070 Powers, Duties and Limitations
17.100.090 Conditions of Approval for Variances
17.100.100 Appeals from the Board
17.100.010 Appointment–Term of Office
A. A board of adjustment is established which shall consist of five (5) residents of the city, appointed by the city council, who shall serve without pay.
B. The term of each appointment shall be for three (3) years. Each member may be appointed for as many terms as determined by the city council. In the event of the death, resignation or removal of a member, the vacancy may be filled for only the unexpired portion of the term. The terms of all members shall extend until their successors are qualified.
C. No member shall hold any other office or be employed by the city. (Ord. 1249 Exh. A (part), 2015: Ord. 1242 (part), 2014; Ord. 1015 (part), 2007: Ord. 736 Art. IX § A, 1997)
17.100.020 Organization
The term of all members shall extend until their successors are qualified, except as provided in Section 17.100.120, Vacancies. (Ord. 1342 § 2, 2019: Ord. 1015 (part), 2007: Ord. 736 Art. IX § B, 1997)
17.100.030 Compensation
All members shall serve without pay. However, members may be reimbursed for actual expenses incurred in connection with their duties upon authorization or ratification by the board and approval of such expenditures by the council. (Ord. 1015 (part), 2007: Ord. 736 Art. IX § C, 1997)
17.100.040 Organization–Meetings–Rules and Regulations
A. The board shall elect a chairman and vice- chairman from among its own members, who shall serve in this capacity for one (1) year with eligibility for reelection. The terms of the chairman and vice-chairman shall extend until their successors are qualified.
B. The vice-chairman shall perform the duties of the chairman in the chairman’s absence or dis- ability.
C. The board may adopt rules and regulations for the conduct of its own business, hearings and procedures.
D. The board shall meet such times and at such place as necessary to perform its functions and duties under this title and state law.
E. All meetings of the board shall be open to the public.
F. No change shall be made in a meeting time or place without a posted seven (7) day advance notice.
G. The council shall appoint a secretary who shall keep minutes of the board’s proceedings, showing the action of the board and the vote of each member upon each question, or, if absent or failing to vote, indicating such fact, and shall keep records of its official actions, all of which shall be immediately filed in the office of the city clerk and shall then be a public record.
H. The presence of three (3) members shall constitute a quorum.
I. The board shall act by motion.
J. The affirmative vote of three (3) members shall be required for passage of any matter before the board.
K. A member may abstain from voting only upon a declaration that he has a conflict of interest, in which case such member shall not take part in the deliberations on the matter in question. (Ord. 1342 § 3, 2019; Ord. 1249 Exh. A (part), 2015; Ord. 1015 (part), 2007: Ord. 736 Art. IX § D, 1997)
17.100.050 Assistance from City Departments
The board may call on the city departments, through the City Manager, for assistance in the performance of its duties. (Ord. 1129 (part), 2010; Ord. 1015 (part), 2007: Ord. 736 Art. IX § E, 1997)
17.100.060 Appeals, Notices and Hearings
A. Appeals to the board concerning interpretation or administration of this title may be taken by any person aggrieved or by an officer or department of the city affected by any decision of the zoning administrator.
B. An aggrieved person shall be construed to be one having a direct interest in the property affected, such as the owner, mortgagee, or lessee.
C. Applications for any matter to be considered by the board shall be filed with the zoning administrator on forms furnished for the purpose within thirty (30) days after the action appealed from, and shall specify the grounds thereof.
D. The zoning administrator shall forthwith transmit to the board all papers constituting the record upon which the action appealed from is taken.
E. The appeal stays all proceedings in the matter appealed from, unless the zoning administrator certifies to the board that, by reason of the facts stated in the certificate, a stay would, in the zoning administrator’s opinion, cause imminent peril to life or property.
In such case, proceedings shall not be stayed, except by a restraining order granted by the board, or by a court of record on application and notice to the zoning administrator.
F. The board shall fix a reasonable time for hearing the appeal, and shall give notice of hearing, as appropriate, by publication in a newspaper of general circulation in accordance with A.R.S. 9-462.04 posting the notice in conspicuous places on the property affected, and/or by posting the notice on the city’s website and at City Hall.
1. It shall not be the responsibility of the city to maintain the posting once erected.
2. The appellant, the zoning administrator and the parties in interest shall receive notice of hearing.
G. Any party may appear at the hearing in person or by agent or attorney.
H. Parties in interest shall have the right to present their case by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination of witnesses as may be required for a full and true disclosure of the facts; provided, that the submission of documentary evidence shall not, by reason of its written form, prejudice the interest of any party.
I. The board shall, as a matter of policy, provide for the exclusion of irrelevant, immaterial or unduly repetitious evidence, and in furtherance of this policy may limit cross-examination.
J. A petition to the board signed by persons not parties in interest to an appeal, as defined herein, shall not be considered documentary evidence and shall have no bearing on the board’s decision, nor shall any person presenting such petition be considered the agent of its signers. (Ord. 1342 § 4, 2019; Ord. 1249 Exh. A (part), 2015; Ord. 1099 (part), 2009; Ord. 1015 (part), 2007: Ord. 736 Art. IX § F, 1997)
(17.100.060, Amended, 11/02/2000)
17.100.070 Powers, Duties and Limitations
The powers, duties and limitations of the board include the following:
A. Hear and decide appeals in which it is alleged there is an error in an order, requirement or decision made by the zoning administrator in the enforcement of this title;
B. Hear and decide appeals for variances from the terms of the zoning ordinance only if, because of special circumstances applicable to the property, including its size, shape, topography, location or surroundings, the strict application of the zoning ordinance will deprive such property of privileges enjoyed by other property of the same classification in the same zoning district;
C. Any variance granted is subject to such conditions as will assure that the adjustment authorized shall not constitute a grant of special privileges inconsistent with the limitations upon other properties in the vicinity and zone in which such property is located;
D. Reverse or affirm, wholly or partly, or modify the order, requirement or decision of the zoning administrator appealed from and make such order, requirement, decision or determination as necessary;
E. Hear and decide appeals from property owners aggrieved by orders of the city inspector to demolish abandoned and dangerous buildings. (Ord. 1099 (part), 2009; Ord. 1015 (part), 2007: Ord. 736 Art. IX § G, 1997)
17.100.080 Variances
The board shall not:
A. Make any changes in the uses permitted in any zoning district, or make any changes in the terms of this zoning ordinance, provided the restriction in this subsection shall not affect the authority to grant variances pursuant to this chapter;
B. Grant a variance if the special circumstances applicable to the property are self-imposed by the property owner.
A variance shall not be granted by the board unless and until:
1. A written application for variance has been submitted demonstrating:
a. 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 zoning district,
b. That literal interpretation of the provisions of this title would deprive the appellant of rights commonly enjoyed by other properties in the same zoning district under the terms of this title,
c. That the alleged hardship caused by literal interpretation of the provisions of this title includes more than personal inconvenience and financial hardship, and is not the result of actions by the appellant,
d. That granting the variance will not confer upon the appellant any special privilege that is denied by this title to other land, structures or buildings in the same zoning district,
e. That granting the variance will not interfere with or substantially or permanently injure the appropriate use of adjacent conforming properties in the same zoning district,
2. A hearing has been held in accordance with requirements of this section,
3. The board finds that the reasons set forth in the appeal justify the granting of the variance, and that the variance is the minimum variance that will make possible the reasonable use of the land, building or structure,
4. The board finds that granting of the variance will be in harmony with the general purpose and intent of this title, and will not be injurious to the neighborhood, or otherwise detrimental to the public welfare. (Ord. 1015 (part), 2007: Ord. 736 Art. IX § H, 1997)
17.100.090 Conditions of Approval for Variances
A. In granting a variance, the board may impose such conditions and safeguards as are appropriate to ensure that the purpose and intent of this title will be fulfilled.
B. Failure to comply with such conditions and safeguards, when made a part of the terms under which a variance is granted, shall be deemed a violation of this title.
C. No violations of this title by neighboring lands, structures or buildings, in the same zoning district, and no permitted use of lands, structures or buildings in other zoning districts, shall be considered grounds for granting a variance.
D. Every variance granted shall be personal to the appellant therefor and shall be transferable and shall run with the land only after completion of any authorized structure or structures.
E. Nothing herein contained shall be construed to empower the board to change the terms of this title, to authorize uses which violate any other city ordinance, to effect changes in the zoning map, or to add to the uses permitted in any zoning district.
F. Every decision of the board shall be based upon findings of fact, and every finding of fact shall be supported in the record of its proceedings.
G. The conditions required by this title to exist on any matter upon which the board is authorized to pass under this title shall be construed as limitations on the power of the board to act.
H. A mere finding or recitation of the enumerated conditions, unaccompanied by the findings of specific fact, shall not be deemed findings of fact, and shall not be deemed in compliance with this title. (Ord. 1015 (part), 2007: Ord. 736 Art. IX § I, 1997)
17.100.100 Appeals from the Board
A. The decision of the board shall be final; provided, however, that any person aggrieved by a decision of the board or a municipal officer may, at any time within thirty (30) days after the filing of the decision in the office of the board, petition the court for a writ of certiorari for review of the board’s decision.
B. 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 for good cause shown, grant a restraining order, and on final hearing may reverse or affirm, wholly or partly, or may modify the decision reviewed. (Ord. 1249 Exh. A (part), 2015; Ord. 1015 (part), 2007: Ord. 736 Art. IX § J, 1997)
17.100.110 Fees
A. Upon filing an application for appeal, the appellant shall pay a filing fee to the general fund of the city in accordance with a schedule established by resolution of the council, and posted in the office of the zoning administrator.
B. No part of any such fee shall be returnable after an application is filed and the fee is paid.
C. In the case of an appeal for a variance to more than one provision of this title, the filing fee shall equal the total amount chargeable for all provisions as prescribed by the fee schedule.
D. Payment of the filing fee shall be waived when the appellant is the zoning administrator or any other officer or agency of the city acting in an official capacity. (Ord. 1015 (part), 2007: Ord. 736 Art. IX § K, 1997)
17.100.120 Vacancies
The recording secretary of the board shall notify the council whenever any member is absent for three (3) consecutive regular meetings; three (3) such absences without cause shall be sufficient for the council to declare a vacancy in that office. When a board member moves from the city, the office shall at once become vacant. Vacancies shall be filled for unexpired terms in the same manner as prescribed for original appointments. (Ord. 1342 § 5, 2019)