Formation: A Board of Zoning Appeals is hereby created in accordance with K.S.A. 12-759 governing such creation. The Board shall adopt rules of procedure as may be necessary and proper to govern its own proceedings; such rules shall not be in conflict with other laws or Ordinances. Meetings of the Board shall be held at the call of the Chairman and at such other times as the Board may determine. The Board shall keep minutes of its proceedings, showing the description of evidence presented, the findings of fact by the Board, the decision 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 examinations and other official actions, all of which shall be filed in the office of the Board immediately and shall be a public record.

The Board shall have the following powers and jurisdictions:

A.    Appeals: To hear and decide appeals where it is alleged there is an error to any order, requirement, decision or determination made by the Zoning Administrator.

1.    Appeals to the Board may be submitted by the person aggrieved or by any officer of the city of Linn Valley or by any governmental agency or body affected by any decision or action of the Zoning Administrator or Building Official. Such appeal shall be filed within a reasonable time, as shall be prescribed by general rule of the Board and shall be submitted to the City Clerk together with a statement specifying the grounds for the appeal. The City Clerk shall transmit to said Board all papers constituting the record for which the action or decision is being appealed.

2.    An Appeal stays all proceedings in furtherance of the action appealed from, unless the Zoning Administrator or Building Official certifies to the Board, after the Notice of Appeal shall have been filed with him, that by reason of facts stated in the Certificate, a stay would, in his opinion cause imminent peril to life or property.

B.    Variances: The Board of Zoning Appeals may authorize in specific cases a Variance from the specific terms of these regulations where, due to a special condition, a literal enforcement of the provisions of these regulations will result in unnecessary hardship. Such Variance shall not permit any use not permitted by the Zoning Regulations in such district.

1.    The applicant must show that his or her property  was acquired in good faith and where, by reason of exceptional narrowness, shallowness or shape of this specific piece of property at the time of the effective date of the district zoning regulations, or where, by reason of exceptional topographical conditions or other extraordinary or exceptional circumstances, the strict application of the terms of the zoning regulations actually prohibit the use of this property in the manner similar to that of other property in the zoning district where it is located.

2.    A request for a Variance may be granted, upon a finding by the Board, that all of the following conditions have been met. The Board shall make a determination on each condition, and the finding shall be entered in the record.

a.     The Variance requested arises from such condition which is unique to the property in question and which is not ordinarily found in the same zone or district;

b.    The granting of the permit for the Variance will not adversely affect the rights of adjacent property owners or residents;

c.     The strict application of the provisions of the Zoning Regulations of which the Variance is requested will constitute unnecessary hardship upon the property owners represented in the application;

d.    The Variance desired will not adversely affect the public health, safety, morals, order, convenience, prosperity or general welfare; and

e.     The granting of the Variance desired will not be opposed to the general spirit and intent of the Zoning Regulations.

C.    Exception: The Board of Zoning Appeals may grant Exceptions to the provisions of this Ordinance as provided in Article 12, Section 12.3:

1.    In no event shall Exceptions to the provisions of the Ordinance be granted where the Exception contemplated is not specifically listed as an Exception in Section 12.3 of this Ordinance.

2.    Further, the Board shall not grant an Exception when the conditions of this Exception are not found to be present in this Ordinance.

When determining whether to grant an Exception, the Board should consider:

a.     How substantial the Exception requested is in relation to the zoning requirement;

b.    Whether a substantial change will be produced in the character of the neighborhood;

c.     Whether the difficulty can be obviated by some method feasible for the applicant to pursue other than an Exception;

d.    Whether, in the view of the manner in which the difficulty arose, the interest of justice will be served by allowing the Exception; and

e.     Whether the Exception would grant a privilege not commonly granted in the district.

The procedure for requesting a hearing before the Board shall be as follows:

A.    All applications to the Board shall be in writing on forms provided by the City Clerk.

B.    The Board shall fix a reasonable time for the hearing of an application and notice of the time, place and subject of each hearing shall be published in the official City newspaper at least twenty (20) days prior to the date fixed for the public hearing. A copy of the notice of public hearing shall be sent to each party of interest.

C.    An application shall be accompanied by a filing fee as established by Ordinance. A separate filing fee shall be required for each request.

Applications shall include the following:

A.    Appeals:

1.    An application for an appeal shall be filed within sixty (60) days after a ruling has been made by the Zoning Administrator or Building Official.

2.    A copy of the order, requirement, decision or determination of the Zoning Administrator or Building Official in which the applicant believes to be in error.

3.    A clear and accurate written description of the proposed use, work or action in which the appeal is involved and a statement justifying the appellant’s position.

4.    Where necessary, a plot plan, drawn to scale, in duplicate showing existing and proposed plans for the area in question shall be submitted.

B.    Variances:

1.    The applicant shall submit a statement, in writing, justifying the Variance requested; indicating specifically the enforcement provisions of the Zoning Regulations from which the Variance is requested, and outlining in detail the manner which it is believed that his application will meet each of the five (5) conditions as set out in Section 17.2.2.b of this Article.

2.    The applicant shall prepare and submit in duplicate at the time of filing the application, a detailed plot plan drawn to scale, showing all existing and proposed structures, property lines with dimensions, parking spaces, points of ingress and egress, driveways and any other information which would be helpful to the Board in consideration of the application.

C.    Exceptions:

1.    A clear and accurate, written description of the proposed use, work or action in which the appeal is involved and a statement justifying the appellant’s position.

2.    Where necessary, a plot plan, drawn to scale, in duplicate showing existing and proposed plans for the area in question shall be submitted.

In making any decision varying or modifying any provisions of the Zoning Ordinance, the Board may impose such restrictions, terms, time limitations, landscaping and other appropriate safeguards to protect adjoining property.

The Board may require a performance bond to guarantee the installation of improvements such as parking lot surfacing, landscaping, etc. The amount of the bond shall be based on a general estimate of cost for the improvement as determined by the Board, and shall be enforceable by or payable to the City of Linn Valley in the sum equal to the cost of constructing the required improvements.

In lieu of the performance bond requirement, the Board may specify a time limit for the completion of such required improvements and in the event the improvements are not completed within the specified time, the Board may declare the granting of the application null and void after reconsideration.

Any person, persons, official, department or departments of government jointly or separately aggrieved by any order or decision of the Board may bring an action in the District Court to determine the legality of such order or decision within thirty (30) days after the date that the decision of the Board has been rendered.