APPENDIX C – ZONING REGULATIONSAPPENDIX C – ZONING REGULATIONS\ARTICLE 10. BOARD OF ZONING APPEALS

The Planning Commission as previously established by the Governing Body has been designated to also serve as the Board of Zoning Appeals as prescribed by K.S.A. 12-759, as amended, and hereinafter in this Article will be referred to as the “Board.”

All members of the Planning Commission are voting members of the Board whether they reside inside or outside the City limits and shall serve without compensation, but may be reimbursed for expenses when authorized by the Governing Body.  All officers of the Planning Commission are officers of the Board including the Secretary.  Public records shall be kept of all official actions of the Board, which shall be maintained, separately from the Planning Commission by the Secretary.  The Board shall keep minutes of its proceedings showing evidence presented at hearings, findings of fact, decisions and the vote of each member upon each question.  If absent, abstaining or disqualified from voting, such fact shall be indicated.  Special meetings shall be held at the call of the Chairperson and at such other times as the Board may determine in its bylaws.  Board meetings may be held separately from a Planning Commission meeting or in conjunction with such a meeting wherein the Planning Commission may recess a portion of its meeting to conduct business of the Board and to reconvene to continue the Planning Commission agenda.  When a quorum is declared present, all actions of the Board including appeals, variances and conditional uses as exceptions shall be made by motion and decided by a majority vote of the members present and voting.

The Board shall establish a scale of reasonable fees to be paid in advance by the appealing party subject to subsequent approval of such fees by the Governing Body in the form of a fee schedule.  The Board shall adopt rules for its operation in the form of bylaws which shall include hearing procedures and will not be in conflict with the ordinance designating the Planning Commission as the Board, the applicable State statutes and the provisions of these regulations.   Such bylaws shall be subject to the approval of the Governing Body.

The Board shall have the following jurisdiction and authority as a quasi-judicial body:

A.    To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination (all hereinafter referred to collectively as “decision”) made by the Zoning Administrator in the administration and enforcement of these regulations subject to the procedure and standards set out in Section 10-106.

B.    To hear and decide on variances from specific terms of these regulations subject to the procedure and standards set out in Section 10-107.

C.    To hear and decide on conditional uses as exceptions subject to the procedure and standards set out in Section 10-108.

For the hearing on each appeal for a decision, variance or conditional use; public notice of the date, time and place of the hearing, the legal description or a general description sufficient to identify the property under consideration, and a brief description of the subject of such hearing shall be published once in the official newspaper so that at least 20 days shall elapse between the date of such publication and the date for the hearing.  All notices shall include a statement that a complete legal description is available for public inspection and shall indicate where such information is available when only a general descrip¬tion of the property is provided in the notice.  A copy of such notice shall be mailed to each party making the appeal and to the Secretary of the Planning Commission.

For land inside the city limits, the Board shall also provide notice to all owners of record of lands located within 200 feet of the exterior boundary of the property under consideration both within the city limits and extending outside the city limits when necessary.  If the applicant's property is located adjacent to but within the city limits, the area of notification in addition to the 200 feet inside the City, shall be extended to 1,000 feet in the unincorporated area.  Such notice shall be mailed so that at least 20 days shall elapse between the mailing date and the hearing date.   A list of such owners of record of land with their addresses and zip codes shall be provided by the applicant.  Failure to receive such notice after it has been properly addressed and deposited in the mail shall not invalidate any subsequent action taken by the Board. If there is no quorum present for the meeting or at the time of the hearing, the members in attendance may agree to hold another meeting in the future at a stated date, time and place for which, when announced at the present meeting, no further public notice need be given.

The Board shall select a reasonable time and place for the hearing on each appeal of a decision, variance or conditional use as an exception.  All hearings shall be open to the public; however, when hearing such appeals the Board exercises quasi-judicial functions and, thus, may upon proper motion proceed to deliberate in closed session according to K.S.A. 75-4318(a).  No binding action may be taken and all voting must be conducted in an open meeting.  Any person may appear and testify at a hearing, either in person or by a duly authorized agent or attorney.  Every decision of the Board shall be filed without unreasonable delay with the Zoning Administrator and shall be open to public inspection during reasonable business hours.

Any order or determination of the Board on an appeal for a decision, a variance or a conditional use as an exception, shall be final decisions and shall be subject to judicial review, but not appealable to the Planning Commission or the Governing Body.  Any person, official or governmental agency, jointly or separately dissatisfied by any decision of the Board, may present to the County District Court, a petition, duly verified, stating that such decision is illegal in whole or in part, specifying the grounds of the illegality and asking for relief therefrom based on a determination of the reasonableness of any such order or determination.  Such petition shall be filed with the Court within 30 days after the date of filing the final decision with the Zoning Administrator.

An appeal from a decision of the Zoning Administrator with respect to the interpretation, application or enforcement of these regulations may be taken to the Board by any person aggrieved, or by any officer of the City, or any governmental agency or body affected by any decision of the Zoning Administrator.

A.    Time for Appeals.   Appeals shall be made within 30 days after a decision has been made by the Zoning Administrator by filing an application for appeal.   Upon the Chairperson's receipt of an application for appeal and notification to the Zoning Administrator, the Administrator shall forthwith transmit to the Chairperson all of the papers constituting the record upon which the decision being appealed was based.

B.    Application.  An application for an appeal shall (1) be filed with the Chairperson, (2) specify the grounds for such an appeal, (3) include the legal description of any property involved with the appeal,  (4) be  accompanied by an ownership list as required by Section 10-103 and the  filing fee, and (5) provide such additional information as may be prescribed by rule of the Board.

C.    Stay of Proceedings.  An appeal shall stay all legal proceedings in furtherance of the action appealed from unless the Zoning Administrator certifies to the Board, after the application for appeal has been filed, that by reason of facts stated in the certificate a stay would, in his opinion, cause imminent peril to life or property.  In such case, the proceedings shall not be stayed other than by a restraining order which may be granted by the Board or by a court of record on petition with notice to the Zoning Administrator and on the basis of due cause shown.

D.    Hearing and Notice.  A hearing on the application for such an appeal shall be held and notice thereof given as specified under Sections 10-103 and 104 and which are consistent with the general procedures and records required by Section 10-101.

E.    Decision.  The Board may affirm or reverse, wholly or partly, or may modify the order, requirement, decision or determination appealed from, and may make such order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the Zoning Administrator, and may issue or direct the issuance of a zoning permit and/or occupancy certificate.  No conditions may be attached to such a decision that could not otherwise have been available to the Zoning Administrator in making his initial decision.  The Board shall render a written decision in the form of a resolution on the appeal without unreasonable delay after the close of a hearing and, in all cases, within 45 days after the close of the hearing.

The Board may authorize such variances from the terms of these regulations as will not be contrary to the public interest and provided that the spirit of the regulations shall be observed, public safety and welfare secured and substantial justice done.  Variances may be authorized only in those specific instances enumerated in Section 10-107C and then only when the Board has made findings of fact based upon the standards set out in Section 10-107D that owing to special conditions a literal enforce¬ment of the provisions of these regulations will, in an individual case, result in unnecessary hardship for the owner, lessee or occupant of land or structures.  Any such variance shall not permit any use not permitted by these regulations in the zoning district in which the variance is requested.

A.    Application.  An application for a variance shall (1) be filed with the Zoning Administrator, (2) provide the legal description of the property involved with the variance,  (3) be accompanied by an ownership list as required by Section 10-103 and the filing fee, and (4) contain the following information as well as such additional information as may be prescribed by rule of the Board:

1.    The particular requirements of these regulations which prevent the proposed use or construction;

2.    The characteristics of the subject property which prevent compliance with the requirements of these regulations;

3.    The reduction of the minimum requirements of these regulations which would be necessary to permit the proposed use or construction; and

4.    The particular hardship which would result if the particular requirements of these regulations were applied to the subject property.

B.    Hearing and Notice.   A hearing on the application for such a variance shall be held and notice thereof given as specified under Sections 10-103 and 104 and which are consistent with the general procedures and records required by Section 10-101.

C.    Authorized.   Variances from the provisions of these regulations shall be granted by the Board only in accordance with the standards set out in Section  10-107D, and may be granted only in the following instances and in no others:

1.    To vary the applicable minimum lot area, lot width and lot depth requirements, subject to the following limitations:

a.     The minimum lot width and lot depth requirements shall not be reduced more than 25%.

b.    The minimum lot area for a single or two-family dwelling shall not be reduced more than 20%.

c.     The minimum lot area per dwelling unit requirements for multiple-family dwellings shall not be reduced more than 10%.

2.    To vary the applicable bulk regulations, including maximum height and lot coverage and minimum yard requirements.

3.    To vary the dimensional provisions for permitted obstructions in required yards including fences in Sections 3-103F.

4.    To vary the applicable number of required off-street parking spaces and the amount of off-street loading requirements of Article 5.

5.    To vary the applicable dimensional sign provisions of Section 7-102 regarding general standards and Section 7-104 regarding district regulations.

6.    To vary the applicable requirements in Sections 10-107C1 through 5 above in conjunction with conditional use applications for nonconforming, nonresidential structures and uses under provisions of Section 8-105.

7.    To vary the applicable provisions permitted by the FP Flood Plain District as provided by Section 4-117.

D.    Standards:

1.    The Board may grant a variance upon specific written findings of fact based upon the particular evidence presented to it at the hearing that all the conditions required by K.S.A. 12-759(e) have been met which are listed below:

a.     That the variance requested arises from such condition which is unique to the property in question and which is not ordinarily found in the same zoning district, and is not created by an action or actions of the property owner or the applicant;

b.    That granting of the variance will not adversely affect the rights of adjacent property owners or residents;

c.     That strict application of the provisions of these regulations from which a variance is requested will constitute unnecessary hardship upon the property owner represented in the application;

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

e.     That granting the variance desired will not be opposed to the general spirit and intent of these regulations.

2.    In determining whether the evidence supports the conclusions required by Section 10-107D1, the Board shall consider the extent to which the evidence demonstrates that:

a.     The particular physical surroundings, shape or topographical condition of the specific property involved would result in a practical difficulty or unnecessary hardship upon or for the owner, lessee or occupant, as distinguished from a mere inconvenience, if the provisions of these regulations were literally enforced;

b.    The request for a variance is not based exclusively upon a desire of the owner, lessee, occupant or applicant to make more money out of the property;

c.     The granting of the variance will not be materially detrimental or injurious to other property or improvements in the neighborhood in which the subject property is located; and

d.    The proposed variance will not impair an adequate supply of light or air to adjacent property, substantially increase congestion on public streets or roads, increase the danger of fire, endanger the public safety or substantially diminish or impair property values within the neighborhood.

E.    Conditions and Restrictions.  In granting a variance, the Board may impose such conditions upon the premises benefited by the variance as may be necessary to comply with the standards set out in Section 10-107D which would reduce or minimize any potentially injurious effect of such variance upon other property in the neighborhood and to  carry out the general purpose and intent of these regulations, including methods for guaranteeing performance such as are provided for in Section 10-108D.  Failure to comply with any of the conditions attached to a zoning permit for a variance shall constitute a violation of these regulations.

F.    Decisions and Records.   The Board shall render a written decision containing specific findings of fact in the form of a resolution on an application for a variance without unreasonable delay after the close of a hearing, but in all cases within 45 days after the close of the hearing.  The Zoning Administrator shall maintain complete records of all actions of the Board with respect to applications for variances, in order to properly issue permits.

G.    Period of Validity.  No variance granted by the Board shall be valid for a period longer than 180 days from the date on which the Board grants the variance, unless within such 180-day period a zoning permit is obtained and the variance requested is started.   The Board may grant additional extensions not exceeding 180 days each, upon written application, without further notice or hearing.

The Board may grant as an exception to the provisions of these regulations, the establishment of only those conditional uses that are expressly authorized to be permitted in a particular zoning district or in one or more zoning districts.  No such conditional use shall be granted unless it complies with all of the applicable provisions of these regulations.

A.    Application.  An application for a conditional use shall (1) be filed with the Zoning Administrator, (2) provide the legal description of the property involved with the conditional use, (3) be accompanied by an ownership list as required by Section 10-103 and the filing fee, and (4) contain the following information as well as such additional information as may be prescribed by rule of the Board:

1.    A statement or diagram showing compliance with any special conditions or requirements imposed upon the particular conditional use by the applicable district regulations or Section 10-108D if applicable;

2.    A statement as to why the proposed conditional use will not cause substantial injury to the value of other property in the neighborhood;

3.    A statement as to how the proposed conditional use is to be designed, arranged and operated in order to permit the development and use of neighboring property in accordance with the applicable district regulations; and

4.    Present data in support of the standards specified in Section 10-108C.

B.    Hearing and Notice.  A hearing on the application for such a conditional use as an exception shall be held and notice thereof given as specified under Sections 10-103 and 104 and which are consistent with the general procedures and records required by Section 10-101.

C.    Standards.   The Board may grant a conditional use when it makes specific written findings of fact based upon the particular evidence presented to it at the hearing which support conclusions that:

1.    The proposed conditional use complies with all applicable regulations, including lot size requirements, bulk regulations, use limitations and performance standards; unless a concurrent application is in process for a variance.

2.    The proposed conditional use will not cause substantial injury to the value of other property in the neighborhood.

3.    The location and size of the conditional use, the nature and intensity of the operation involved in or conducted in connection with it, and the location of the site with respect to streets giving access to it are such that the conditional use will not dominate the immediate neighborhood so as to prevent development and use of neighboring property in accordance with the applicable zoning district regulations.  In determining whether the conditional use will so dominate the immediate neighborhood, consideration shall be given to:

a.     The location, nature and height of building structures, walls and fences on the site; and

b.    The nature and extent of landscaping and screening on the site.

4.    Off-street parking and loading areas will be provided in accordance with the standards set forth in Article 5 of these regulations.   Such areas will be screened from adjoining residential uses and located so as to protect such residential uses from injurious effects.

5.    Adequate utility, drainage and other such necessary facilities have been installed or will be provided by platting, dedications and/or guarantees.

6.    Adequate access roads, entrance and exit drives and/or access control is available or will be provided by platting, dedications and/or guarantees and shall be so designed to prevent traffic hazards and to minimize traffic congestion in public streets and roads.

D.    Conditions.   In granting a conditional use, the Board may attach such conditions upon the premises and/or the applicant benefited by the conditional use as may be necessary to comply with the standards set out in Section 10-108C in order to reduce or minimize any potentially injurious affect upon other property in the neighborhood and to carry out the general purpose and intent of these regulations.  Such conditions may include, but not be limited to, further restrictions on bulk regulations; time of operation and ownership limitations; screening, landscaping and fencing; provision of utilities, drainage and other public improvements; additional access or access control; off-street parking and loading requirements; and platting, dedications and/or guarantees. In addition to the guarantees referred to below for parking and/or screening, covenants, which run with the land or the property to guarantee, that conditions will be carried out at a future date may be filed with the County Register of Deeds.  After a zoning permit and/or occupancy certificate is issued for the conditional use, failure to comply with any of the conditions placed on such use shall constitute a violation of these regulations.

In lieu of actual construction of required off-street parking or the initial provisions for screening, the Board may accept, in the name of the City, a corporate surety bond, cashier's check, escrow account or other like security in an amount to be fixed by the Board and conditioned upon actual completion of such improvement within a specified time.  Such securities shall be filed with the Clerk.   The Governing Body may enforce such securities by all equitable means.

E.    Decisions and Records:  The Board shall render a written decision containing specific findings of fact in the form of a resolution on an  application for a conditional use without unreasonable delay after the close of a hearing, but in all cases within 45 days after the close of  the hearing.  The Zoning Administrator shall maintain complete records of all actions of the Board with respect to applications for conditional uses in order to properly issue permits.

F.    Period of Validity.  No conditional use granted by the Board shall be valid for a period longer than 180 days from the date on which the Board grants the conditional use, unless within such period:

1.    A zoning permit is obtained and the conditional use requested is started; or

2.    An occupancy certificate is obtained and a use commenced.

The Board may grant additional extensions not exceeding 180 days each, upon written application, without further notice of a hearing.

G.    Oil Well Drilling and Operation.  Notwithstanding any other provisions of these regulations to the contrary, the drilling or operation of oil wells may be allowed as a conditional use in all zoning districts; provided, however, that in all zoning districts, except in an industrial district when the well is more than 500 feet from any school, residential district boundary or dwelling, a conditional use permit shall first be obtained as provided for in Section 10-108.  The Board shall not grant a conditional use permit for such drilling or operation unless it shall make the specific findings of fact required under Section 10-108C.  In addition, all oil well drilling or operations, except in the industrial district, shall be subject to the following conditions and restrictions:

1.    All storage of oil and waste products and all pumping equipment shall be fully enclosed. Such enclosure shall be compatible in construction and design with the surrounding area. In all residential districts, such enclosures shall be fully roofed.  In other districts, the Board may require roofing in order to minimize the adverse effect of such operation on adjoining properties.

2.    All hauling of oil, water, and other materials, except in the case of an emergency, shall be during daylight hours.