The City Council shall designate a Board of Zoning Appeals, hereinafter referred to as the “Board,” as prescribed by K.S.A. 12-759. If so designated, the Planning Commission is authorized under K.S.A. 12-759 to serve in such capacity.

The Board shall operate according to the following general rules and procedures.

A.    All members of the Planning Commission are voting members of the Board.

B.    Board members shall serve without compensation, but may be reimbursed for expenses when authorized by the City Council.

C.    All officers of the Planning Commission are officers of the Board.

D.    The Board shall adopt bylaws establishing specific rules for its operation.

1.    Hearing procedures shall not conflict with the ordinance designating the Planning Commission as the Board, applicable state statutes, or these regulations.

2.    Bylaws shall be subject to the approval of the City Council.

3.    Filing fees shall be established separately by the City Council.

E.    The secretary shall keep public records of all official actions, which shall be maintained separately from that of the Planning Commission. Meeting minutes shall be kept as evidence of information presented at hearings, findings of fact, and decisions. The vote of each member shall be recorded on each item, including whether the member  was absent, abstaining or disqualified from voting.

F.    Special meetings may be held when called by the Chairperson, or in accordance with Board bylaws.

G.    Board meetings shall be held separately from Planning Commission meetings; provided that they may be held in conjunction with Planning Commission meetings, which have been recessed to conduct Board business and reconvened to continue the Planning Commission agenda.

H.    After a Board meeting has been called to order and a quorum declared present, all Board actions of shall be made by motion and decided by a majority vote of the members present and voting.

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 an error in any order, requirement, decision or determination made by the Zoning Administrator in the enforcement of these regulations. Appeals to the Board may be taken by the person aggrieved, or by any officer, department, or bureau of the government affected by any decision of the Zoning Administrator.

B.    To authorize in certain cases a variance from the specific terms of these regulations, which are not contrary to the public interest and where a literal enforcement of the provisions of these regulations will result in unnecessary hardship.

1.    In all variances, the Board shall observe the spirit of these regulations, preserve and secure public safety and welfare, ensure that substantial justice is done.

2.    The Board shall not authorize any variance that permits any use prohibited within the applicable zoning district.

C.    Shall have jurisdiction, in accordance with the authority granted the Board in these regulations, only to hear appeals and variances affecting properties located within the City limits of the City of Augusta.

Determinations of the Zoning Administrator regarding the interpretation, application, or enforcement of these regulations, may be appealed to the Board. Such appeals may be filed as provided in this article by any person aggrieved, by any officer of the City, or any governmental entity affected by any decision of the Zoning Administrator.

A.    Applications for Appeal

1.    Applications of appeal shall be filed with the Chairperson within thirty (30) days of the date the subject determination was made by the Zoning Administrator. Such applications shall be accompanied by the appropriate filing fee and the following:

a.     A written description of the grounds for appeal.

b.    The legal description of the subject property.

c.     Any additional information as may be required by the rules of the Board.

B.    Stay of Enforcement

1.    Upon filing, an appeal shall stay all enforcement of the action being appealed.

2.    Enforcement shall not be stayed if the Zoning Administrator certifies in writing to the Board that by reason of facts stated in writing, a stay would pose a danger to or otherwise threaten public health, safety, or welfare. In such cases, enforcement shall not be stayed, except by order of the Board or a court of record with notice and basis of due cause provided to the Zoning Administrator.

C.    Public notice shall be given and a hearing on the application of appeal conducted as specified under Section 14.03.A.3.

D.    Board Actions

1.    The Board may take any of the following actions on an appeal of a Zoning Administrator determination.

a.     Affirm or reverse, wholly or partly.

b.    Modify the order, requirement, decision, or determination; and substitute its own, which shall have all the powers of the Zoning Administrator.

c.     Issue or direct the issuance of a zoning permit or compliance certificate.

2.    No conditions may be attached to such a decision that would not otherwise have been available to the Zoning Administrator in making the initial determination.

A.    The Board may authorize variances from the terms of these regulations when such are not contrary to the public interest, observe the spirit of these regulations, preserve and secure public safety and welfare, and ensure that substantial justice is done. Variances shall:

1.    Only be authorized in the manner and under the circumstances stipulated in this article.

2.    Be accompanied by findings of fact that demonstrate the literal enforcement of specific provisions of these regulations will result in unnecessary hardship for the applicant.

3.    Not permit any use that is prohibited by these regulations in the applicable zoning district.

B.    Applications for Variance

1.    Applications for variance shall be filed with the Chairperson. Such applications shall be accompanied by the appropriate filing fee and the following:

a.     A written description of the requested variance.

b.    The legal description of the subject property.

c.     The required ownership list specified in Section 14.03.A.3.

d.    Additional information including:

i.     The particular requirements of these regulations that prevent the proposed use or construction.

ii.    The characteristics of the subject property that prevent compliance with the requirements of these regulations.

iii.   The reduction of the minimum requirements of these regulations necessary to permit the proposed use or construction.

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

v.    A sketch drawn to scale showing the subject lot(s), with all existing and proposed structures that necessitate the request.

2.    Public notice shall be given and a hearing on the application of variance conducted per Section 14.03.

C.    Authorized Variances

Variances from the provisions of these regulations shall be granted by the Board only in accordance with the standards set out in Section 15.05.D, and shall be granted only as follows.

1.    Variances to the applicable minimum lot area, lot width and lot depth requirements.

2.    Variances to the lot coverage and minimum yard requirements.

3.    Variances to the dimensions of fences and other permitted obstructions in required yards.

4.    Variances to the required number of off-street parking spaces and amount of off-street loading, except for adjustments to ADA requirements.

5.    Variances to dimensional sign provisions.

6.    Variances to applicable requirements and conditions of approval for conditional use and temporary use applications.

7.    Variances to applicable provisions of the floodplain district regulations.

D.    Standards of Variance Approval

1.    The Board may grant variances supported by written findings of fact based upon the particular evidence presented the hearing, subject to the conditions stipulated by K.S.A. 12-759(e) as follows.

a.     The variance requested arises from a condition that meets all of the following provisions:

i.     Unique to the property in question.

ii.    Not ordinarily found in the same zoning district.

iii.   Not created by an action or actions of the property owner or the applicant.

iv.   Granting of the variance will not adversely affect the rights of adjacent property owners or residents.

v.    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.

vi.   The variance will not adversely affect the public health, safety, morals, order, convenience, prosperity or general welfare.

vii.  Granting the variance will not be opposed to the general spirit and intent of these regulations.

2.    The Board shall consider the extent to which the evidence supports the conclusions required by Section 15.05.D.1 and demonstrates that:

a.     The hardship claimed by the applicant is an unnecessary hardship caused by the physical surroundings, lot shape, or topography of the subject property; rather than the proposed use being inappropriate for the subject property or incompatible with its surroundings, or another mere inconvenience to the applicant.

b.    The hardship claimed by the applicant is not solely economic in nature, such as an attempt to avoid expenses related to meeting the otherwise applicable provisions, or a desire to increase the applicant’s profit margin for such development.

c.     The requested variance will not diminish the condition or value of other properties in the vicinity; or the inhibit the rights of others to use their property in a lawful manner and enjoy the benefits gained from such uses.

d.    The requested variance will not result in an inadequate supply of light or air to adjacent property; create a substantial increase to congestion on public roadways; disproportionately impact public utility system service or capacity; impose a flood or fire hazard; or otherwise endanger the public health, safety, or welfare.

E.    Performance Assurances

The Board may impose conditions upon the granting of a variance or require certain guarantees of the applicant as may be necessary to achieve compliance with the standards of Section 15.05.D, to mitigate potentially negative effects of such variances, and to carry out the general purpose and intent of these regulations.

1.    Such performance assurances may include, but not be limited to:

a.     Conditions

i.     Further restrictions on bulk regulations.

ii.    Time of operation and use limitations.

iii.   Visual buffers, landscape buffers, and height compatibility setbacks, except as otherwise prohibited by applicable laws and regulations.

iv.   Provision of utilities, drainage and other public improvements.

v.    Additional access or access controls.

vi.   Off-street parking and loading requirements.

vii.  Platting, dedications, or guarantees.

b.    Guarantees

i.     Covenants that run with the land and filed with the County Register of Deeds that assure the installation of conditional improvements at a future date.

ii.    Corporate surety bonds, cashier’s checks, escrow accounts, or similar security accepted in lieu of installing/constructing conditional improvements within a specified time. Such shall be in the City’s name, filed with the City Clerk in an amount to be fixed by the Board, which amount shall be roughly proportional to the estimated costs. The City Council may enforce such securities by all equitable means.

2.    Failure to comply with any of the conditions imposed upon a variance shall constitute a violation of these regulations. Upon a finding by the Board of such a violation, the resolution granting the variance may be declared null and void.

3.    Changes to such conditions may only be made in the same manner as the original variance. In such cases, it shall be required to apply for a new hearing. Only the requested change shall be considered at the rehearing.

A.    The Board shall be subject the same requirements for public notifications and conduct of public hearings as the Planning Commission, which are provided in Section

B.    Decisions & Records

1.    On all actions, the Board shall render a written decision in the form of a resolution without reasonable delay, but within forty-five (45) days of closing the hearing.

2.    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.

3.    Variances granted by the Board shall be valid for a period not to exceed one-hundred and eighty (180) days from the hearing date. Applicable zoning permits shall be received within that time, provided that upon written request, the Board may grant extensions, each not to exceed one-hundred and eighty (180) days. Such extensions granted shall not require further notice or hearing.

A.    Orders and determinations of the Board are not subject to appeal to the Planning Commission or City Council. All such decisions are considered final, notwithstanding the right of any aggrieved party to seek a judicial review as provided by law.

B.    Any person, official or governmental agency, jointly or separately dissatisfied by any decision of the Board, may seek relief by petition of the Butler County District Court. Such petitions shall by duly filed with the Court within thirty (30) days of the date the final decision is filed with the Zoning Administrator.