Board of Appeal/Adjustment Minutes
Board of Appeal/Board of Adjustment minutes are provided at the conclusion of the following information.
The Board of Appeals/Board of Adjustment does not have unlimited discretion in deciding whether to grant a variance. Under the state enabling act, the Board is required to reach three conclusions as a prerequisite to the issuance of a variance: first - that there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the ordinance; two - that the variance is in harmony with the general purposes and intent of the ordinance and preserves its spirit; and thirdly - that in granting of the variance the public safety and welfare have been assured and substantial justice has been done.
The courts have developed three rules to determine whether in a particular situation "practical difficulties or unnecessary hardships" exist. First rule is - if he/she, the owner, complies with the provisions of the ordinance, the property owner can secure no reasonable return from or make no reasonable use of his property. (It is not sufficient that failure to grant the variance simply makes the property less valuable.)
The second rule in support of the hardship conclusion: the hardship of which the applicant complains results from unique circumstances related to the applicant's land (hardships suffered by the applicant in common with his neighbors do not justify a variance. Also, unique personal or family hardships are irrelevant since a variance, if granted, runs with the land).
Rule three in support of the hardship conclusion: the hardship is not the result of the applicant's own actions.
The second conclusion the Board must affirm is: the variance is in harmony with the general purpose and intent of the ordinance and preserves its spirit. (The owner must state facts and arguments to show that the variance requested represents the least possible deviation from the letter of the ordinance that will allow a reasonable use of the land and that the use of the property, if the variance is granted, will not substantially detract from the character of the neighborhood).
The third conclusion is: The granting of the variance secures the public safety and welfare and does substantial justice. The owner must state facts and arguments to show that, on balance if the variance is denied, the benefit to the public will be substantially outweighed by the harm suffered by the applicant.
At the Board of Appeals/Board of Adjustment hearing the Board will hear the statements of the zoning administrator or designee concerning the variance application. Following that, the Board will hear the statements of the applicant. No interruptions from the audience will be permitted during the taking of testimony. After both the zoning administrator or designee, and the applicants have presented their information, the Board will receive testimony from others. Each testifier must be sworn in and must state their name for the record. Testimony must be kept brief and limited to the issue before the Board.
After hearing all parties, the Board of Appeals/Board of Adjustment will render its opinion. In order for a variance to be granted, at least 4/5's, 4 out of 5 of the voting members must agree that the applicant has satisfied each of the conclusions necessary to grant a variance. If the applicant fails to satisfactorily prove any of the necessary conclusions by a 4/5's vote, then the variance cannot be granted.
Past Board of Appeals/Board of Adjustment minutes are provided below.