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§ 8-1 TITLE 4 — ZONING CODE § 8-2 Chapter 8 APPEALS, VARIANCES, AND CONDITIONAL USES Sec. 8-1: Duties of the Board of Adjustment Sec. 8-2: Appeals of Zoning Administrator Decisions Sec. 8-3: Variances Sec. 8-4: Conditional Uses Sec. 8-5: Appeals to City Council Sec. 8-6: Ability of Use Permits to Assume Variance Functions Sec. 8-1. Duties of the Board of Adjustment. The Board of Adjustment shall have the authority to grant, in particular cases and subject to appropriate conditions and safeguards, conditional use permits and variances as authorized by this Zoning Code. The Board of Adjustment shall also have the authority to hear and decide appeals where it is alleged there is an error in any order, requirement, decision or determination made by the Zoning Administrator in enforcement of this Zoning Code. Sec. 8-2. Appeals of Zoning Administrator Decisions. A. Appeals to the Board of Adjustment concerning the interpretation or administration of this Zoning Code by the Zoning Administrator may be made by any applicant, City representative or affected person thereby. Such appeal shall be made within thirty (30) days from the date the appellant first knew of or, with reasonable diligence, could have known of such interpretation or administration of the Zoning Code by the Zoning Administrator. An appeal shall be made by filing with the Zoning Administrator a written notice specifying the grounds thereof. Should the appellant acquire additional information pertinent to the Zoning Administrator’s interpretation or administration of the Zoning Code, the appellant shall present the additional information to the Zoning Administrator for consideration and issuance of a new decision prior to consideration of an appeal by the Board of Adjustment. B. The Board of Adjustment shall fix a reasonable time for the consideration of the appeal within thirty (30) days of the receipt of notice of appeal by the Zoning Administrator. Consideration of the appeal shall be pursuant to the procedures contained herein. At the consideration on the appeal, the appellant and any affected person may appear in person or by agent or attorney. 1. Grounds upon which an appeal to the Board of Adjustment may be made following a final decision of the Zoning Administrator: a. Decision violates statutory or constitutional provisions; b. Decision exceeds statutory authority; c. Decision was made upon unlawful procedure; d. Decision was unsupported by substantial evidence in the records or as a whole; or e. Decision was arbitrary, capricious, or an abuse of discretion. 2. Scope of Appeal. The appeal shall be limited to the issues raised in the written notice of appeal, which shall specifically state the allowed grounds upon which the appeal is being made to the Board of Adjustment as provided herein. The appellant must indicate in the appeal whether they are requesting oral argument before the Board of Adjustment. 3. Record. The Zoning Administrator shall provide the Zoning Board of Adjustment all documentation, information, City ordinances, and records considered by the Zoning Administrator in making their final decision. New information that was not considered by the Zoning Administrator shall not be provided to or considered by the Zoning Board of Adjustment. 4. Public Meeting. Upon receipt of the complete Record, City Clerk will notice ---PAGE BREAK--- § 8-2 TITLE 4 — ZONING CODE § 8-2 the matter for consideration before the Zoning Board of Adjustment as a noticed public meeting. 5. If no oral argument is requested, City Staff will introduce the appeal, and then the Board of Adjustment may ask questions of the Appellant and City Staff and then the Board of Adjustment will conduct its deliberations. 6. If oral argument is requested, the process for the Zoning Board of Adjustment to hear the appeal will proceed as follows: a. Staff Introduction of Appeal. City staff shall provide an introduction of the facts pertaining to the appeal, the procedure followed by the Zoning Administrator, and answer questions about the content of the established Record. b. Appellant Argument. Appellant will be allowed to argue the issues presented in the appeal. The time allowed for argument is set by the Chair of the Zoning Board of Adjustment. c. Applicant, if not the Appellant, is permitted to offer a rebuttal. The time allowed is set by the Chair of the Zoning Board of Adjustment. d. Appellant will be permitted a rebuttal to the Applicant’s rebuttal. The time allowed is set by the Chair of the Zoning Board of Adjustment. e. At the conclusion of arguments, the Zoning Board of Adjustment will conduct its deliberation. 7. After considering the record, the reasons for the appeal, and oral argument if requested, the Zoning Board of Adjustment shall take one or more of the following actions: a. Sustain the Decision. Sustain the decision of the Zoning Administrator in whole or in part. b. Reverse the Decision. Reverse the decision of the Zoning Administrator in whole or in part. c. Remand the Decision. Remand the matter in whole or in part to the Zoning Administrator with comments and/or instructions for further consideration. The Zoning Board of Adjustment shall remand an appeal in whole or in part for gathering additional material information, and a decision based upon the original and the additional presented evidence where the appellant shows the Zoning Board of Adjustment, by a preponderance of the evidence, that there is: i. New material information which was not available or readily discoverable at the time of the final decision, and ii. It is in the public interest to develop such additional material information on the matter. C. Stay of Proceedings: The filing of an appeal shall stay all interpretations, proceedings and/or activities and furtherance of the action appealed from, including the issuance of building and/or other permits related to the subject property. A stay may be lifted, in whole or in part, only where the Zoning Administrator files a written affidavit with the City Clerk certifying that a stay would, in the opinion of the Zoning Administrator, not serve the purposes for which relevant Code provisions were intended or would cause endangerment to life and/or property. The Zoning Administrator should lift the stay, in whole or in part, only to the extent necessary to further the intent of relevant Code provisions. Where the Zoning Administrator files such an affidavit, interpretations, proceedings and/or activities shall not be stayed other than by the Board, Commission or Council before whom the matter is pending or by a Court of Record. A request for review of the Zoning Administrator’s affidavit regarding the stay shall be heard with the consideration of the related appeal, if requested by an affected person not less than ten (10) days prior to such consideration. D. The appellant shall submit an appeal fee established from time to time by the Council by resolution. ---PAGE BREAK--- § 8-2 TITLE 4 — ZONING CODE § 8-3 (Ord. 2007-10, 09/17/2007; 2023-04, 07/17/2023) Sec. 8-3. Variances. A. Procedures. 1. A written application for a variance indicating the section(s) of this Zoning Code for which a variance is sought and stating the grounds on which it is requested shall be submitted to the Zoning Administrator at least sixteen (16) days before the hearing at which the matter will be considered by the Board of Adjustment or the Planning and Zoning Commission. 2. The Board of Adjustment or the Planning and Zoning Commission shall hold a hearing on the application not less than sixteen (16) days and not more than sixty (60) days from receipt of application by the Zoning Administrator and shall provide notice to adjoining property owners and an opportunity to be heard in accordance with the Idaho Code and this Code. 3. The hearing shall be a Type 1 Quasi-Judicial Hearing pursuant to Section 4-10-4 of this Code. B. Relevant Criteria and Standards. Approval or denial of a variance application shall be based upon the following criteria: 1. The applicant has demonstrated that special conditions and/or circumstances exist which are peculiar to the property (such as size, shape, topography or location) which are not applicable to other property similarly situated in the same zoning district. 2. The applicant has demonstrated that, because of the aforementioned special conditions of the property, application of the provisions of this Zoning Code would impose undue hardship and would deprive the property owner of rights commonly enjoyed by owners of other property similarly situated in the same zoning district under the terms of this Zoning Code. 3. Granting of the variance will not be in conflict with the public interest or injurious to property or persons in the vicinity of the subject property. C. Reasoned Statement in Writing. Approval or denial of variance application shall be in writing and shall be accompanied by a reasoned statement that explains the criteria and standards considered by the Board of Adjustment or by the Planning and Zoning Commission to be relevant, the relevant contested facts relied upon, and explains the rationale for the decision based upon the Comprehensive Plan, the Idaho Code, this Code, the U.S. Constitution and the facts in the record. The reasoned statement herein may be in the form of minutes when such minutes are adopted by the Board of Adjustment or by the Planning and Zoning Commission or may be in the form of a separate written document formally adopted by the Board of Adjustment or by the Planning and Zoning Commission. In every case, a reasoned statement shall be adopted by the Board or by the Commission not more than twenty-one (21) days following the date of approval or denial of the variance application. D. Conditions of Approval. In granting any variance, the Board of Adjustment or the Planning and Zoning Commission may prescribe appropriate conditions and safeguards that enable the Board or the Commission to approve the variance application and ensure the variance is consistent with the purposes, and intents of this Zoning Code. E. Use Variances. With respect to uses of land, buildings and other structures, this Zoning Code is declared to be a definition of the public interest by the Council, and the spirit of this Zoning Code will not be observed by any variance which permits a use not permitted in the zoning district involved, or any use expressly or by implication prohibited, by the terms of this Zoning Code in said zoning district. Therefore, under no circumstances shall the Board of Adjustment or the Planning and Zoning Commission grant a variance to ---PAGE BREAK--- § 8-3 TITLE 4 — ZONING CODE § 8-4 permit a use not permitted in the zoning district involved, or any use expressly or by implication prohibited, by the terms of this Zoning Code, in said zoning district. F. Final Decision. A decision of the Board of Adjustment or of the Planning and Zoning Commission, granting or denying a variance, shall become final upon the date of adoption of a written reasoned statement in the official records of the Board of Adjustment or of the Planning and Zoning Commission or when the Board or the Commission shall find that making the decision effective immediately is necessary for the preservation of property and/or personal rights and shall so certify on the record, whichever comes first in time. A decision of the Board of Adjustment or of the Planning and Zoning Commission shall be final, subject to appeal of the decision to the Council pursuant to this Code. G. Compliance. 1. In the event of failure to comply with the plans approved by the Board of Adjustment or by the Planning and Zoning Commission, or with any conditions imposed upon the variance, such permit shall thereupon be immediately revoked and shall automatically be null and void. 2. Where plans are submitted as part of the application for a variance, modifications of the original plans may be required by the Board of Adjustment or by the Planning and Zoning Commission as a condition of approval. 3. Where plans approved by the Board of Adjustment or by the Planning and Zoning Commission are modified following such approval, such plan modifications must be determined by City staff to be in substantial conformance with the plans approved by the Board or the Commission. If plan modifications are not in substantial conformance, the plan modifications must be resubmitted to the Board or to the Commission for an additional public hearing as an amendment to the variance application. H. Term of Approval. The term of approval of a variance shall not exceed two years from the date of the final decision, unless otherwise approved by the Board of Adjustment. The approval shall expire if the holder of the permit has not completed one or more of the following actions prior to the expiration date: 1. Acquired construction permits and commenced placement of permanent footings and infrastructure; or 2. Commenced the use. I. Extension of Approval Term. The Zoning Administrator may grant one two year extension to an unexpired variance, upon written request of the applicant. Extensions of variances shall also extend any associated zoning approvals such as variances. (Ord. 2007-10, 09/17/2007; 2016-04, 04/04/2016; 2018-11, 08/20/2018) Sec. 8-4. Conditional Uses. A. Procedures. 1. A written application for a Conditional Use Permit indicating the section of this Zoning Code under which the permit is sought and stating the grounds on which it is requested shall be submitted at least twenty-one (21) days before the hearing at which the request is to be considered by the Board of Adjustment. 2. The Zoning Administrator shall hold a hearing on the conditional use permit application not less than twenty- one (21) days and not more than sixty (60) days from the receipt of the application by the Zoning Administrator, giving notice in accordance with Idaho Code Section 67- 6512. 3. The public hearing shall be a Type 1 Quasi-Judicial Hearing pursuant to Section 4-10-4 of this Code. 4. Prior to granting a Conditional Use Permit, studies may be required of the social, economic, fiscal, and ---PAGE BREAK--- § 8-4 TITLE 4 — ZONING CODE § 8-4 environmental effects of the proposed conditional use. B. Relevant Criteria and Standards. Approval or denial of a Conditional Use Permit application shall be based upon the following criteria: 1. The proposed use is a conditionally permitted use within the Zoning District. 2. The character of the proposed use will be in harmony with the neighborhood and surrounding land uses. 3. The proposed use as approved, or as approved with conditions, will not generate nuisances that would be injurious or detrimental to adjoining properties or the neighborhood (including, but not limited to, noise, dust, glare, vibrations, odors, and the like). 4. The location, design, and size of the proposed use will be adequately served by existing streets, public facilities and services. 5. The proposed use will not endanger the public health or safety if located where proposed. 6. The proposed use meets all applicable development standards of the Zoning Code. 7. The proposed use will not be in conflict with the Comprehensive Plan. C. Reasoned Statement in Writing. Approval or denial of a Conditional Use Permit application shall be in writing and shall be accompanied by a reasoned statement that explains the criteria and standards considered by the Board of Adjustment to be relevant, the relevant contested facts relied upon, and explains the rationale for the decision based upon the Comprehensive Plan, the Idaho Code, this Code, the U.S. Constitution and the facts in the record. The reasoned statement herein may be in the form of minutes when such minutes are adopted by the Board of Adjustment or may be in the form of a separate written document formally adopted by the Board of Adjustment. In every case, a reasoned statement shall be adopted by the Board not more than twenty-one (21) days following the date of approval or denial of the Conditional Use Permit application. D. Conditions of Approval. The Board of Adjustment may impose conditions including, but not limited to, those minimizing adverse impact on other development; controlling the sequence and timing of development; controlling the duration of development; assuring that development is maintained properly; designating the exact location and nature of development; requiring the provision for on-site or off-site public facilities or services; requiring more restrictive standards than those generally required in an ordinance; and/or requiring mitigation of effects of the proposed development upon service delivery by any political subdivision, including school districts, providing services within the planning jurisdiction. E. No Precedent or Transfer. A Conditional Use Permit shall not be considered as establishing a binding precedent to grant other Conditional Use Permits. A Conditional Use Permit is not transferable from one parcel of land to another. F. Final Decision. A decision of the Board of Adjustment, granting or denying a Conditional Use Permit shall become final upon the date of adoption of a written reasoned statement in the official records of the Board of Adjustment or when the Board of Adjustment shall find that making the decision effective immediately is necessary for the preservation of property and/or personal rights and shall so certify on the record, whichever comes first in time. A decision of the Board of Adjustment shall be final, subject to appeal of decision to the Council pursuant to this Code. G. Compliance. 1. In the event of failure to comply ---PAGE BREAK--- § 8-4 TITLE 4 — ZONING CODE § 8-5 with the plans approved by the Board of Adjustment, or with any conditions imposed upon the Conditional Use Permit, such permit shall thereupon be immediately revoked and shall automatically be null and void. 2. Where plans are submitted as part of the application for a Conditional Use Permit, modifications of the original plans may be required by the Board of Adjustment as a condition of approval. 3. Where plans approved by the Board of Adjustment are modified following such approval, such plan modifications must be determined by City Staff to be in substantial conformance with the plans approved by the Board. If plan modifications are not in substantial conformance, the plan modifications must be resubmitted to the Board for an additional public hearing as an amendment to the Conditional Use Permit application. H. Term of Approval. The term of approval of a variance shall not exceed two years from the date of the final decision, unless otherwise approved by the Board of Adjustment. The approval shall expire if the holder of the permit has not completed one or more of the following actions prior to the expiration date: 1. Acquired construction permits and commenced placement of permanent footings and infrastructure; or 2. Commenced the use. I. Extension of Approval Term. The Zoning Administrator may grant one two year extension to an unexpired variance, upon written request of the applicant. Extensions of variances shall also extend any associated zoning approvals such as variances. J. Revocations. If the use and/or occupancy for which the conditional use permit is approved ceases for a period of twenty-four (24) consecutive months, unless otherwise provided for in the Conditional Use Permit, the Conditional Use Permit shall be immediately revoked and shall be automatically null and void. (Ord. 97-33, 11/3/97; 2007-10, 09/17/2007; 2016-04, 04/04/2016; 2018-11, 08/20/2018) Sec. 8-5. Appeals to City Council. A. Appellant. Any applicant, City representative or affected person, may appeal a final decision of the Board of Adjustment or of the Planning and Zoning Commission to the Council within ten (10) calendar days following a final decision of such Board or Commission regarding an interpretation of or administration of the Zoning Code by the Zoning Administrator, which includes: a variance application, conditional use permit, or PUD, by filing written notice of appeal specifying the grounds therefor with the City Clerk , or their designee. Grounds upon which an appeal to the City Council may be made following a final decision of the Board of Adjustment or of the Planning and Zoning Commission includes the following: 1. Decision violates statutory or constitutional provisions; 2. Decision exceeds statutory authority; 3. Decision was made upon unlawful procedure; 4. Decision was unsupported by substantial evidence in the records or as a whole; or 5. Decision was arbitrary, capricious, or an abuse of discretion. B. Appeal Process. 1. Intent. It is the intent of the Council that decisions made regarding appeals herein should be founded upon sound reason and practical application of recognized principles of law. The Council shall not act on an appeal, which, in the judgment of the Council, differs materially from that which was considered by the Board or Commission. 2. Scope of Appeal. The appeal shall be limited to the issues raised in the written notice of appeal, which shall specifically state the allowed grounds ---PAGE BREAK--- § 8-5 TITLE 4 — ZONING CODE § 8-5 3. upon which the appeal is being made as provided herein. The appellant must indicate in the appeal whether they are requesting oral argument before the Council. 4. Record. The Council shall receive a transcript of the public hearing held by the Board of Adjustment or the Planning and Zoning Commission, along with all other documentation, information, and records considered by the Board or Commission in making its final decision. New information or public testimony that was not considered by the Board or Commission shall not be provided to or considered by the Council. 5. Public Meeting. Upon receipt of the complete Record, City Clerk will notice the matter on a regularly scheduled City Council meeting. Mailed notice of the public meeting shall be provided to the same persons as were provided notice of the original public hearing on the matter no less than seven days prior to the meeting during which the appeal will be considered. 6. If no oral argument is requested, City Staff will introduce the appeal, and then the Council may ask questions of the Appellant and City Staff and then the Council will conduct its deliberations. 7. If oral argument is requested, the process for the Council to hear the appeal will proceed as follows: a. Staff Introduction of Appeal. City staff shall provide an introduction of the facts pertaining to the appeal, the procedure followed by the Board or Commission, and answer questions about the content of the established Record. b. Appellant Argument. Appellant will be allowed to argue the issues presented in the appeal. The time allowed for argument is set by the Mayor. c. Applicant, if not the Appellant, is permitted to offer a rebuttal. The time allowed is set by the Mayor. d. Appellant will be permitted a rebuttal to the Applicant’s rebuttal. The time allowed is set by the Mayor. e. At the conclusion of arguments, the Council will conduct its deliberation. C. Council Action. After considering the record, the reasons for the appeal, and oral argument if requested, the Council shall take one or more of the following actions: 1. Sustain the Decision. Sustain the decision of the Board or Commission in whole or in part. 2. Reverse the Decision. Reverse the decision of the Board or Commission in whole or in part. 3. Remand the Decision. a. Remand the matter in whole or in part to the Board or Commission with comments and/or instructions for further consideration by the Board or Commission. The Council shall remand an appeal in whole or in part for gathering of additional material information, and a decision and an accompanying reasoned statement based upon the original and the additional presented evidence where the appellant shows the Council, by a preponderance of the evidence, that there is: i. New material information which was not available or readily discoverable at the time of the final decision, and ii. It is in the public interest to develop such additional material information on the matter. b. Any public hearing on remand, at which additional testimony or evidence is to be admitted, shall observe notice and hearing requirements applicable to the original public hearing. D. The appellant shall submit an appeal fee established from time to time by the Council by resolution. (Ord. 2007-10, 09/17/2007; 2023-04, 07/17/2023) ---PAGE BREAK--- § 8-6 TITLE 4 — ZONING CODE § 8-6 Sec. 8-6. Ability of Use Permits to Assume Variance Functions. When an application for a Variance is submitted concurrently with an application for a Conditional Use Permit or a Special Use Permit, and when said Variance would be incidental to said use permit, the applications shall be under the authority of the body hearing the use permit and may be decided upon in the same public hearing as the use permit, provided that the decision regarding the variance is based upon relevant criteria and standards in Section 4-8-3(B) of this Code. (Ord. 96-20, 9/9/96; 2000-18, 09/05/2000)