Chapter 19.12 APPEAL BOARD OF ADJUSTMENT*

A board of adjustment is established to be known as the “appeal board of adjustment.” The word “board” when used herein means the appeal board of adjustment. The board shall consist of five members, all of whom shall serve without salary. The board members shall be appointed by the city manager and confirmed by the council. In case any vacancy shall occur in the membership of the board for any cause, the city manager shall fill such vacancy by making an appointment for the unexpired term of the member or members creating such vacancy, the appointment to be confirmed by the council. Members of the board who miss three consecutive meetings may be removed by the city manager and the vacancy filled as provided in this section. The initial membership shall consist of one member appointed for one year, one for two years, one for three years, one for four years and one for five years; and each appointment thereafter shall be for a five-year term. (Ord. 1620 § 1, 1973).

19.12.020 Meetings – Majority vote.

Meetings of the board shall be held at least once each month and at such other times as the chairman of the board may determine. There shall be a fixed place of meeting. All board meetings shall be open to the public. Any action of the board shall receive an affirmative vote of at least a majority of the total board. When requested by the secretary or chairman of the board, the director of community and economic development and the building official and the chief of the fire department, or such of them as have received such a request, shall attend any board meeting for the purpose of furnishing technical advice to the board. (Ord. 2774 § 1, 2000; Ord. 1711 § 1, 1974; Ord. 1620 § 1, 1973).

19.12.030 Rules of procedure – Records of proceedings.

The board shall elect from its members a chairman and shall also select a secretary for the board which secretary need not be a member thereof. The board shall adopt its own rules of procedure (except as hereinafter fixed as to voting) and keep a record of its proceedings, actions and decisions in each case, and the vote of each member on each question considered in the proceedings. (Ord. 1620 § 1, 1973).

19.12.035 Avoidance of delays – Secretary of board to set hearing dates.

To avoid delays, it is important that hearings be promptly scheduled before the board. Petitions or requests that are presented or filed between regularly scheduled meetings do not become fixed for hearing until the next regular meeting of the board, and a lack of business before the board sometimes results in the lack of a quorum preventing a meeting from being held and a hearing date from being fixed. In order to assure petitioners and applicants of prompt hearing dates, the secretary of the appeal board of adjustment, notwithstanding any provisions in this chapter to the contrary, shall have the authority, upon receipt of a petition under this chapter, a variance request, or a request for review of any interpretation made by the building official to fix a date for the hearing thereon in accordance with the requirements of this chapter, and to cause notice of such hearing to be issued and publicized as required by this chapter. (Ord. 2529 § 1, 1993).

19.12.040 Power of board – Appeal of building official decisions.

The board may review any interpretation of the provisions of LMC Titles 16 or 19 made by the building official, and any order, requirement, decision, or determination relating thereto made by him in the application of the specific provision of said titles to any parcel of land and/or structure. The board may affirm or reverse the interpretation of the provisions of said titles made by the building official, and any order, requirement, decision, or determination relating thereto; the board’s decision shall be based upon the records and the evidence in each case and to that end it shall have all of the powers of the building official. (Ord. 3161 § 1, 2011; Ord. 1620 § 1, 1973).

19.12.045 Power of board – Appeal of community development director decisions.

(1) Applicability. The appeal board of adjustment shall hear and decide appeals where it is alleged that there is an error in any decision, interpretation, or determination made by the community development director in the consideration of seasonal sales temporary use permits (Chapter 19.41 LMC), boundary line adjustments (Chapter 19.68 LMC), short subdivisions (Chapter 19.67 LMC) and type A binding site plans (Chapter 19.90 LMC). Appeals to the board may be taken by any person aggrieved by or affected by the decision of the community development director.

(2) Stay of Proceedings. When an appeal is filed to the board, all proceedings in furtherance of the action affected by the decision being appealed shall be stayed, unless:

(a) The community development director certifies to the board, after the notice of appeal has been filed with the community development director, that by reason of facts stated in the certificate, a stay would cause imminent peril to life or property; or

(b) The appellant is not diligently pursuing the appeal.

(3) Decision.

(a) Public notice of the hearing shall be as provided in this chapter. The board shall hold the hearing, and shall decide the appeal within a reasonable time after such hearing.

(b) Any party may appear before the board at the hearing, in person or by agent or attorney.

(i) Reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination appealed;

(ii) Make such order, requirement, decision, or determination as ought to be made; and

(iii) Exercise all the powers of the officer or agency from whom the appeal is taken. (Ord. 3161 § 2, 2011).

19.12.047 Public hearing notice – Appeal of community development director decisions.

(1) Notice of a public hearing for all open-record appeals shall be given as follows:

(a) Time and Form of Notices. Except as otherwise required, notice of an open-record appeal hearing shall be made at least 10 days before the date of the public hearing in the following manner:

(i) Publication in the official newspaper; and

(ii) Posting on the subject property; and

(iii) Notice shall be mailed to adjacent property owners.

(b) Content of Notice. The public notice shall include:

(i) The address and location, and/or a vicinity map or sketch, of the property which is the subject of the public hearing; and

(ii) The date, time, location, and purpose of the public hearing; and

(iii) A general description of the proposed project or action to be taken; and

(iv) A place where further information about the hearing may be obtained.

(c) Continuations. If, for any reason, a hearing cannot be completed on the date set in the public notice, the meeting or hearing may be continued to a date certain and no further notice under this section is required. (Ord. 3161 § 3, 2011).

19.12.050 Power of board – Special property use.

(1) Recognizing that there are certain uses of property that may or may not be detrimental to the public health, safety, morals and general welfare, depending upon the facts in each particular case, a limited power to issue special permits for such uses is vested, by special mention in this title, in the board.

(2) The board shall have and exercise original jurisdiction in receiving, granting or denying all applications for such special property uses as are provided for in this title and shall have the power to place in such permits, conditions or limitations in its judgment required to secure adequate protection to the zone or locality in which such use is to be permitted. No special permit shall be issued by the board until after public hearing, as hereinafter provided, and until after the building official has found that all other provisions of this code, with which compliance is required, have been fulfilled.

(3) No such special property use permit shall be granted by the board unless it finds:

(a) That the use for which such permit is sought will not be injurious to the neighborhood or otherwise detrimental to the public health, safety, morals and general welfare;

(b) In making such determination the board shall be guided by the following considerations and standards:

(i) That the use will not be detrimental to the character and use of adjoining buildings and those in the vicinity,

(ii) That the use will not create a hazard in the immediate area either for pedestrian or vehicular traffic,

(iii) That adequate ingress and egress will be available for fire and other vehicular emergency equipment,

(iv) That adequate off-street parking will be provided to prevent congestion of public streets.

(4) The placement, construction, erection and maintenance of wayfinding signs, as defined in LMC 16.13.040(73), in all use districts, shall be deemed a special property use. (Ord. 2967 § 1, 2006; Ord. 1620 § 1, 1973).

19.12.055 Special property use – Detached accessory dwelling units (ADU).

Subject to the provisions of LMC 19.12.050, and in accordance with Chapter 19.22 LMC, the appeal board of adjustment may grant a special property use permit for the construction of a detached accessory dwelling unit (ADU). (Ord. 3122 § 9, 2010; Ord. 2591 § 3, 1995).

19.12.060 Power of board – Alternate materials and construction.

(1) In addition to the foregoing powers, the board shall have the right to determine the suitability of alternate new materials and types of construction, after a public hearing, and to permit the use of the same when, in the opinion of the board, such new materials or types of construction are equal to or greater in safety requirements than those provided for in the building code.

(2) The board shall also have the right to recommend to the city manager, for presentation to the city council, legislation for the improvement of Chapter 16.08 LMC hereof, being the building code, or any part thereof, which the board may feel is consistent with the purpose and intention of said code. (Ord. 1620 § 1, 1973).

19.12.070 Petitions – Initiation of action by board – Hearing and decision.

(1) Any person or persons aggrieved, or any officer, official of any department or commission of the city, jointly or severally, may file a written petition with the board for a review of the building official’s interpretation of the provisions of LMC Titles 16 or 19. Such petition shall be filed with the office of the city clerk within 10 days after the petitioner shall receive either written or oral notice of the interpretation of any provision of Titles 16 or 19 by which petitioner shall deem himself to be aggrieved. Such petition shall set forth the provision of this code which the building official has interpreted, the building official’s interpretation thereof, the petitioner’s interpretation of the same and the reasons why the petitioner believes the interpretation of the building official to be incorrect. Such petition shall contain the name or names of all aggrieved parties and the names of all attorneys or agents representing such aggrieved parties together with the mailing address of such parties, their agents and attorneys. The city clerk shall transmit said petition to the secretary of the board prior to the next regular meeting of the board. The secretary of the board shall present the petition to the board at its next regular meeting and the board, at such meeting, shall fix a date for the hearing on said petition which date shall not be less than 10 nor more than 60 days from the date upon which said petition was presented to the board. At least five days prior to the date fixed for such hearing the secretary of the board shall cause to be mailed to the petitioner or his agents or attorneys, at the respective addresses shown on the petition, a notice of the time and place of the hearing on said petition. At such hearing the petitioner may appear in person, by agent or by attorney. All city officials and other interested persons may be heard at such hearing in support of or opposition to such petition.

(2) The board may affirm or reverse the interpretation of the provisions of LMC Titles 16 or 19 made by the building official, and any order, requirement, decision, or determination relating thereto made by him; the board’s decision shall be based upon the record and the evidence in each case, and to that end it shall have all of the powers of the building official. Unless a majority of the entire board votes in favor of reversing the decision of the building official such decision shall stand affirmed. The board shall maintain in the office of the building official full and complete written records of all decisions involving the interpretation of the provisions of said titles, which records shall be open to public inspection during all regular business hours. The board’s jurisdiction shall not be construed as an authorization to violate any provisions of this code.

(3) If a decision of the board reverses or modifies a refusal, order, or disallowance of the building official, or varies the application of any provision of this code, the building official shall take action immediately in accordance with such decision. (Ord. 1620 § 1, 1973).

19.12.080 Special property uses – Application – Fee.

All applications for special property uses permitted by this title shall be submitted in writing to the office of the building official. Each such application shall contain the name and mailing address of the applicant or applicants, the legal description of the property for which the special property use is requested, the nature of the special use requested, a concise statement as to the reasons why such property is needed for and suited to such special use, and a statement or document verifying the applicants, ownership of the property or interest in the property through lease, option or other such binding agreement with the owner. The application shall be accompanied by a plot plan, drawn to scale, showing the dimensions of any and all existing structures and all structures to be erected on the property involved and the yard areas thereof. The board or building official may, at any time, require the applicant to furnish such additional information as may be necessary to enable the board to determine whether such application should or should not be granted. With each application filed for a special property use there shall be paid by the applicant, at the time of filing the application with the community and economic development department, a fee in accordance with Table 19-A to defray the city’s costs and expenses in processing such application, including the publication and mailing of the notices hereinafter required. (Ord. 2907 § 2, 2004; Ord. 2774 § 1, 2000; Ord. 2722 § 1, 1999; Ord. 2328 § 1, 1988; Ord. 2120 § 1, 1983; Ord. 1620 § 1, 1973).

19.12.090 Special property uses – Hearing – Notice.

The written application, plot plan and any other written information requested from the applicant by the building official shall be submitted to the board at its next regular or special meeting. The board at such meeting shall fix a time, date and place for public hearing on such application which date shall not be less than 10 days after notice given in the following manner, except that the final notice to be published in the official newspaper shall not be published more than three days prior to the date of said hearing:

(1) By United States mail addressed to the applicant and to the owners of all adjoining or abutting property. (Property separated from the proposed use by a street, highway or other public road or alley shall be construed to be adjoining or abutting for the purpose of giving notice; and notices addressed to the last known address of the person making the latest property tax payment shall be deemed proper notice to the owner of such property);

(2) By not less than two printed or written notices posted in a conspicuous place at or near the location of the proposed use;

(3) By publishing two notices thereof in the official newspaper of the city, such notices to be published at least three days apart. Such notices shall contain the name of the applicant or applicants, the legal description of the property involved, the special property use requested, the date, time and place of the public hearing thereon and shall specify that any person interested may appear at such public hearing and be heard either for or against such application. (Ord. 1620 § 1, 1973).

19.12.100 Special property uses – Hearing – Decision.

At such public hearing the board shall proceed to hear all persons present who desire to be heard either for or against such application and shall render its decision upon such application at the conclusion of such hearing or as soon thereafter as reasonably possible. Any building permit thereafter issued for such property shall be in accordance with and subject to all terms and conditions contained in the decision of the board. (Ord. 1620 § 1, 1973).

19.12.110 Special property uses – Records.

The board shall maintain in the office of the building official full and complete written records of all proceedings and conclusions reached on any and all such applications. (Ord. 1620 § 1, 1973).

19.12.120 Special property use permits – Time limitation.

Whenever the board by its decision authorizes the issuance of a permit for a special property use if such building permit and/or occupancy permit is not obtained by the applicant within six months from the date of the board’s decision, the board’s decision shall cease to be effective. (Ord. 1620 § 1, 1973).

19.12.130 Special property use permits – Revocation – Records.

In addition to all other penalties prescribed in this title, whenever, in the opinion of the building official, any person granted a permit for a special property use fails to comply with all of the terms, conditions, or limitations of such permit and of the decision of the board authorizing the granting of such permit, he shall issue an order, in writing, requiring that all further work on the premises or use thereof be stopped until the violation has been corrected. If the violation is not corrected or if the work on the premises or use thereof is stopped or suspended until such violation is corrected, the building official shall give written notice to the owner or occupant of the premises deemed in violation that the building official will apply to the board for an order revoking the permit for the special property use. Such written notice shall specify the time, the date and place when the building official will appear before the board to request such revocation and shall advise the owner or occupant of the premise deemed to be in violation that such owner or occupant is at liberty to appear and be heard with respect to the request of the building official for such revocation. Such notice shall be mailed to the owner or occupant of the premises deemed in violation, by certified mail with a return receipt requested, at least five days prior to the date specified in such notice as being the date of the hearing. At the hearing the board shall have the power to sustain or overrule the order of the building official and to revoke the permit granted for such special property use. The affirmative vote of a majority of the entire board shall be necessary before the order of the building official shall be declared to be overruled. (Ord. 1620 § 1, 1973).

19.12.140 Variance permits – Authority to issue.

The board may authorize the granting of variances from the zoning ordinance of the city, by the building official, where compliance therewith is impractical or impossible. No application for a variance shall be granted unless the board finds:

(1) The variance will not constitute a grant of special privileges inconsistent with the limitation upon uses of other properties in the vicinity and zone in which the property on behalf of which the application was filed is located; and

(2) That such variance is necessary, because of special circumstances relating to the size, shape, topography, location, or surroundings of the subject property, to provide it with use rights and privileges permitted to other properties in the vicinity and in the zone in which the subject property is located; and

(3) That the granting of such variance will not be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity and zone in which the subject property is situated; and

(4) The need for the variance is not the result of any action taken by the applicant. (Ord. 3122 § 10, 2010; Ord. 1620 § 1, 1973).

19.12.150 Variances – Application – Fee – Hearing – Decision.

(1) The foregoing provisions of LMC 19.12.080 through 19.12.130 shall apply equally to requests for variances as well as to requests for special property uses; provided, however, LMC 19.12.090(2) and (3) shall not apply to requests for variances.

(2) With each application filed for a variance there shall be paid by the applicant, at the time of filing the application with the community development department, a fee in accordance with LMC 19.06.060 to defray the city’s costs and expenses in processing such application, including the publication and mailing of the notices required. (Ord. 3122 § 10, 2010; Ord. 3089 § 2, 2009; Ord. 2907 § 3, 2004; Ord. 2774, 2000; Ord. 2722 § 2, 1999; Ord. 2328 § 2, 1988; Ord. 1620 § 1, 1973).

19.12.160 Stay of proceedings.

An application to the board for any special property use, variance or for any review of the building official’s interpretation of the provisions of LMC Titles 16 or 19 or of any orders, requirements, decisions or determinations relating thereto made by the building official shall operate to stay all further proceedings by the building official unless the building official certifies to the board, and the board finds that, by reasons of facts stated in the certification, a stay would cause imminent peril to life or property, in which case such action shall not be stayed otherwise than by a restraining order issued by the superior court of the county. The decisions of the board shall be transmitted to the office of the building official. (Ord. 1620 § 1, 1973).

19.12.170 Appeal – Filing – Notice.

All decisions and orders of the board shall be final, subject only to review by the superior court of the county upon appeal. The appeal shall be made by filing written notice of appeal with the office of the city clerk and with the clerk of the superior court of the county. The notice of appeal must be filed with the clerk of the superior court and the office of the city clerk within 20 days from the rendering of the decision or order from which the appeal is to be taken. Such notice of appeal shall set forth the name and address of the appellant, the date of the order or decision to be appealed from and shall set forth a correct copy of the order or decision from which the appeal is to be taken. (Ord. 1620 § 1, 1973).

19.12.180 Appeal – Bond.

At the time of filing the notice of appeal with the clerk of said superior court, the appellant shall execute and file with him a sufficient bond in the penal sum of $200.00, with at least two sureties to be approved by the judge of said court, or a surety company authorized to do business in the state, conditioned to prosecute the appeal without delay and, if unsuccessful, to pay all costs to which the city is put by reason of the appeal. Upon application therefor, the court may order the appellant to execute and file such additional bonds as the necessity of the case may require. The filing of the aforesaid notice of appeal within the time specified in LMC 19.12.170, and the filing of the bond aforesaid, shall be necessary in order for the superior court to secure jurisdiction of such appeal. (Ord. 1620 § 1, 1973).

19.12.190 Appeal – Transcript – Fees.

Within 20 days from the filing of the notice of appeal, the appellant shall file with the clerk of the superior court a transcript of all of the proceedings before the board, including the order or decision from which the appeal is taken. The transcript shall be prepared under the supervision of the secretary of the board and shall be certified by the secretary to contain a full, true and correct copy of all matters and proceedings required to be in the transcript. The fee for preparing and certifying the transcript shall be $20.00 for the first legal size page and $10.00 for each additional legal size page, which fee shall be paid to the office of the city clerk. The secretary of the board shall be under no duty to surrender the transcript to the appellant until the fees are paid. All fees so received shall be surrendered to the city treasurer for deposit in the general fund of the city. (Ord. 2328 § 3, 1988; Ord. 1620 § 1, 1973).

19.12.200 Appeal – Notice that transcript has been filed.

Within five days after the filing of the transcript with the clerk of said superior court, the appellant shall give notice to the city’s corporation counsel and to the city clerk that the transcript has been filed. The notice shall also state a time when the appellant will call up the cause for assignment for hearing. (Ord. 1620 § 1, 1973).

19.12.210 Appeal – Hearing – Determination.

At the time fixed for hearing or at such further time as may be fixed by the court, the superior court shall hear and determine the appeal. (Ord. 1620 § 1, 1973).