Board of Adjustments

§153.156 Composition of the Board

A. Chairman: A Chairman shall be appointed by the Mayor in accordance with the zoning code. His term of office shall be one year and until his successor is appointed beginning on July 1, and he shall be eligible for  re-appointment. The Chairman shall decide on all points of order and procedure, subject to these rules, unless directed otherwise by a majority of the Board in session at the time. The Chairman shall appoint any committees found necessary to investigate any matters before the Board.

B. Vice Chairman: A Vice Chairman shall be elected by the Board from among its regular members in the same manner and for the same term as the Chairman. He shall serve as acting Chairman in the Chairman’s absence, and at such times he shall have the same powers and duties as the Chairman.

C. Secretary-Clerk: A Secretary-Clerk shall be appointed by the Chairman of the Board, either from within its membership or from outside, to hold office during the terms of the Chairman and/or until a successor secretary has been appointed. The Secretary shall be eligible for reappointment. The Secretary, subject to the direction of the Chairman and the Board, shall keep all records, shall conduct all correspondence of the Board, shall arrange for all public notices required to be given, shall notify members of pending meetings and their agenda, shall notify parties to cases before the Board of its decision on such cases and shall generally supervise the clerical work of the Board. The Secretary shall keep the minutes of every Board meeting in a permanent volume. The minutes shall show the record of all important facts pertaining to each meeting and hearing, every resolution acted on by the Board, and all votes of members of the Board on any resolution of or on the final determination of any question, indicating the names of members who are absent or fail to vote. If the secretary is chosen from outside the Board’s membership, he shall not be eligible to vote on any matter.

D. Board members: The Board shall consist of five members who shall be residents of the town, appointed by the Mayor and Board of Commissioners. The term of the office of the members of the Board shall be for two years. Vacancies shall be filled for the unexpired term only. Members shall be removed for cause by the Board of Commissioners upon written charges and after public hearing. The members of the Board shall receive no compensation for their services.

(Ord. passed 8-25-94)

§ 153.157 ALTERNATE MEMBERS.

A. Alternate members of the Board shall be appointed for three year terms at the time for appointment of regular members, provided, however, that in the case of the first appointment of alternate members, the appointment shall be for terms which shall expire at the next time when the term of any regular member expires. Alternate members shall be called on to attend only those meetings and hearings at which one or more regular members are absent or are unable to participate in hearing a case because of financial or other interest. Regular members, on receiving notice of a special meeting that they cannot attend or on learning that they will be unable to participate in a particular case, shall give prompt notice to the Board Secretary that they are unable to attend or to participate. On receiving such notice, the Secretary shall, by the most expeditious means, notify an alternate member to attend.  Assignments shall be rotated among the alternate members. At any meeting that they are called on to attend, alternate members shall have the powers and duties as regular members.

B. Except at the election of officers, at no times shall more than five members participate officially in any meeting or hearing.

(Ord. passed 8-25-94)

§153.158 RULES OF CONDUCT.

A. Members of the Board may be removed for cause, including violation  of the rules stated in divisions (B) through (F).

B. Faithful attendance at all Board meetings and conscientious performance of the duties required of Board members shall considered a prerequisite of continuing membership on the Board.

C. No Board member shall take part in the hearing, consideration, or determination of any case in which he is personally or financially interested.

D. No Board member shall discuss any case with any parties thereto before the public hearing on the case, provided, however, that members may receive and/or seek information pertaining to the case from any other member of the Board, its Secretary, or Clerk before the hearing.

E. No Board member shall vote on any matter that decides an application or appeal unless he has attended the public hearing on that application or appeal.

F. Members of the Board shall not express individual opinions on the proper judgment of any case with any parties thereto before that case is determined. Violation of this rule shall be cause for dismissal from the Board.

(Ord. passed 8-25-94)

§153.159 MEETINGS.

A. Regular meetings: Regular meetings of the Board shall be held on the fourth Thursday of the month at the Town Hall, 6:30 p.m., provided that meetings may be held at any other convenient place in the town if the Chairman so directs before the meeting.

B. Special meetings: The Chairman may call special meetings of the Board at any time. At least 48 hours written notice of the time and place of special meetings shall be given, by either the Secretary or the Chairman, to each member of the Board.

C. Cancellation of meetings: If there are no appeals, applications for special use permits or variances, or other business from the Board, or if so many regular and alternate members notify the Secretary that they cannot attend that a quorum will not be available, the Chairman may dispense with a regular meeting by giving written or oral notice to all members not less than 24 hours before the time set for the meeting.

D. Quorum: A quorum shall consist of five members of the Board, three of whom are regular members. The Board shall not pass on any question relating to an appeal from a decision, order requirement, or determination of the Building Inspector or an application for a variance or special use permit when fewer than five members are present.

E. Voting: All regular members may vote on any issue unless they have disqualified themselves for one or more of the reasons listed in §153.158. The required vote to decide appeals and applications shall be as provided in § 153.160(D)(4), and shall not reduced by a disqualification. In all others matters the vote of a majority of the members present and voting shall decide issues before the Board.

F. Conduct of meetings: All meetings shall be open to the public. The order of business at regular meetings shall be as follows.

1. Call to order

2. Approval of minutes of the previous meeting;

3. Hearing of cases;

4. Reports of committees;

5. Unfinished business;

6. New business:

7. Consideration and determination of cases heard.

§153.160 Appeals; Hearings; & Decisions

A. Types of appeals. The Board shall hear and decide all appeals from and review any order, requirements, decision, or determination made by the Building Inspector.  It shall also hear and decide all matters referred to it or on which the zoning code requires it to pass. In deciding appeals the Board may hear both those based on an allegedly improper or erroneous interpretation of the code and those based on alleged hardship resulting from strict interpretation of the code.

B. Procedure for filing appeals. No appeal shall be heard by the Board unless notice thereof is filed within 30 days after the interested party or parties receive notice of the order, requirement, decision, or determination by the Building Inspector. The applicant must file his application for a hearing with the Town Clerk, who shall act as clerk for the Board in receiving this notice. All applications shall be made on the form furnished for that purpose, and all information required thereon shall be completed before an appeal may be considered as having been filed. All applications shall be accompanied by a filing fee according to the town’s schedule of fees maintained in the office of the Town Clerk.

C. Hearing.

1. Time. After notice of appeal is received, the Board Chairman shall schedule the time for a hearing, which shall be a regular or special meeting within 36 days from the filing of such notice of appeal, provided that the appeal is received no more than two weeks before the regular scheduled meeting.

2. Notice.

   • The Board shall give public notice of the hearing in a newspaper generally circulated in the town by advertisement published at least five days before the date of the hearing. The Board shall mail notices of the hearing to the parties to the action appealed from, and to such other persons as the Building Inspector shall direct, at least five days before the hearing.

   • Such notice shall state the location of the building or lot, the general nature of the question involved in the appeal, and the date, time and place of the hearing.

   • In addition, a notice shall be placed on the door of the Town Hall, and adjacent neighbors shall be notified. ADJACENT shall be defined as contiguous properties and across the street.

3. Conduct of the hearing.

   • Any party may appear in person, by agent, or by attorney at the hearing. The order of business for each hearing shall be as follows.

     1. The Chairman or such person as he shall direct, shall give a preliminary statement of the case;

     2. The applicant shall present the evidence and arguments in support of his application;

     3. Persons opposed to granting the application shall present the evidence and arguments against the application;

     4. Both sides shall be permitted to present rebuttals to opposing evidence and arguments;

     5. The Chairman shall summarize the evidence that has been presented, giving the parties opportunity to make objections or corrections.

   • Witnesses may be called and factual evidence maybe submitted, but the Board shall not be limited to consideration of such evidence as would be admissible in a court of law. The Board may view the premises before the hearing, but the facts indicated by such inspection shall be disclosed at the public hearing and made part of the record. All witnesses before the Board shall be placed under oath, and the opposing party may cross-examine them.

4. Rehearings. An application for a rehearing may be made in the same manner as an application for an original hearing. Evidence in support of the application shall initially be limited to what is necessary to enable the Board to determine whether there has been a substantial change in the facts, evidence, or conditions in the case. The Board shall deny the application for rehearing it, from the record, it finds that there has been no substantial change in facts, evidence, or conditions. If the Board finds that a change has occurred, it shall thereupon treat the request in the same manner as any other application.

(D) Decisions.

1. Time. Decisions by the Board shall be made no later than 30 days from the time of the hearing.

2. Form.

   • The Board’s final decision shall be shown in record of the case as entered in the Board’s minutes and signed by the Secretary and the Chairman on approval of the minutes by the Board. Such record shall show the reasons for the determinations, with a summary of the evidence introduced and the findings of fact made by the Board. When a variance is granted, the record shall state in detail any exceptional difficulty to unnecessary hardship upon which the appeal was based and which the Board finds to exist. The decision may reverse or affirm, wholly or partly, or modify the order, requirement, decision, or determination appealed from. When an exception, a special use permit, or a conditional use permit is granted, the record shall state in detail any facts that support findings required to be made before such permit is issued.

   • The record shall state in detail what, if any, conditions and safeguards the Board imposes in connection with granting of a variance or an exception, special use permit, or conditional use permit. A separate record of decision in each case shall be prepared, filed in the Town Clerk’s office and furnished to the parties as specified in subsection (5) of this division.

3. Expiration of permits.  Unless otherwise specified, any order or decision of the Board granting an exception, special use permit, conditional use permit or a variance shall expire if the applicant does not obtain a building permit of certificate of occupancy for such use within six months from the date of the decision.

4. Voting at hearings. The concurring vote of four-fifths of the  Board members shall be necessary to reverse any order, requirement, decision, or determination of the Building Inspector, to decide in favor of the applicant any matter on which the Board is required by ordinance to pass, or to grant a variance from the ordinance provisions.

5. Notice and public records of decisions. The Secretary shall give written notice of the decision in the case to the appellant and/or applicant and to every aggrieved party who has filed a written request for such notice with the Secretary or the Chairman of the Board when the hearing is held. Such notice may be delivered either by personal service or by registered mail or certified mail, or return receipt requested. A copy of the decision shall also be filed in the Town Clerk’s office. The decision shall be a public record, available for inspection at all reasonable times.

(Ord. passed 8-25-94; Am. Ord. passed 1-13-05)

§ 153.161 AMENDMENTS.

These rules may, within the limits allowed by law, be amended at any time by an affirmative vote of not less than four members of the Board, provided that such amendment be presented in writing at a regular or special meeting before the meeting at which the vote is taken.

(Ord. passed 8-25-94)