Process

When a variance application, request for a conditional use permit, or appeal of an administrative decision on an Ordinance is filed, City staff will prepare and publish a notice for the required public hearing in an official newspaper, and notify neighboring property owners by letter. Staff will evaluate the request to see if it conforms to the legal conditions governing the issuance of variances, conditional use permits, or administrative appeals, and prepare a report to the Board.

Nobody is allowed to contact members of the Board of Adjustment to discuss a variance request, not an appellant nor neighboring property owner, or even the Mayor and City Council members, since the Board is a quasi-judicial body.  Questions or filings intended for the Board should be directed to the Department of Community Development.  All communications must take place in the open meeting during the public hearing: communications of any sort at any other time are illegal just as it would be illegal to contact a judge or jury member, and may be subject to prosecution.  The Board can require sworn testimony, and issues a “finding of fact” that is somewhat similar to a court opinion.

Purpose of the Variance Process

The variance process exists because the Zoning Ordinance must allow some reasonable use of a property, or a “regulatory taking” would occur and necessitate compensation to the property owner. A variance may be appropriate if a property has unique conditions, the ordinance creates a hardship for an individual property, and the spirit and intent of the ordinance will be satisfied while varying from the regulations in the manner requested.  If those legal tests cannot be met, a variance should not be granted. A variance is not appropriate as a matter of convenience, for a “hardship situation” that has been self-created, or if it would grant special privileges to an individual property.

Right of Appeal

The Board’s decision is final as far as the City’s process is concerned. The Mayor and City Council cannot overrule or alter the Board's decision.  If anyone feels a variance was improperly granted or denied, including the Mayor and City Council, the Board’s decision must be appealed to the District Court. An appeal can be filed by the appellant, a citizen, or even the Mayor and City Council. The Department of Community Development staff and the City Attorney advise the Board on proper proceedings and findings.