(1) Board of Zoning Appeals Created. There is hereby created within and for the City of Eudora a Board of Zoning Appeals with the powers and duties as hereinafter set forth.
(2) Membership. The Board of Zoning Appeals shall be composed of five members, citizens of the City of Eudora, each appointed by the mayor with the approval of the council for a term of three years; provided, however, that for the first appointment under the provisions of this Article, one member shall be appointed for a term of one year; two members shall be appointed for a term of two years; and two members shall be appointed for a term of three years. All appointments thereafter shall be for a term of three years.
(a) Not more than one member shall be appointed from the membership of the Planning Commission.
(b) The board shall elect a chairperson from its membership.
(c) If any board member shall be absent without cause as determined by the city council for three consecutive meetings, he or she shall thereupon cease to be a board member.
(d) Vacancies on the board shall be filled by appointment by the mayor and approval by the city council for the unexpired term.
(e) Members of the board shall serve without compensation for their service.
(f) The board shall appoint a secretary who may be an officer of the board or an employee of the city.
(3) Procedure. The board shall adopt rules in accordance with the provisions of this Article. Meetings of the board shall be held at the call of the chairperson and at such other times as the board may determine. The chairperson, or in his or her absence, the acting chairperson, may administer oaths and compel the attendance of witnesses. All meetings of the board shall be open to the public. The board shall keep minutes of its proceedings, showing evidence presented, findings of fact and showing the vote of each member upon each question, or if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the city clerk and shall be a public record. The concurring vote of three members of the board shall be necessary to reverse any order, requirement, decision, or determination of any administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under this Article, or to effect any variation in this Article.
(a) In addition to completing a variance application and paying the application fee, any person wishing to be heard before the Board of Zoning Appeals must have a legal land survey of the property in question completed by a licensed Kansas surveyor and provide this survey as evidence to the Board.
(4) Appeals.
(a) The board of zoning appeals may hear and decide appeals where it is alleged that there is an error in any order, requirement, decision or determination by the Codes Administrator. The Codes Administrator, when notified by the board or its agent, shall transmit to the board all the papers constituting the record upon which the action appealed from was taken. The appeal may be initiated by any person aggrieved, or by any officer, department, board or bureau of the city, within 30 days of the order or decision.
(b) Procedure:
(I) Applications to the board for any type of appeal shall be made by filing with the officer from whom the appeal is taken and with the secretary of the Board of Zoning Appeals a notice of appeal specifying the grounds for the appeal. The filing fee shall be paid at the time the notice of appeal is filed; said fee is to be per building site.
(II) The board shall fix a reasonable time for the hearing of the appeal. The board shall cause to be published in the official paper of the city a notice as to the time, place, date and subject of the hearing for each application. Such notice shall appear at least once in the official paper no less than 20 days prior to the date of the hearing. Notice shall also be given to all parties of interest.
(III) An appeal shall stay all proceedings of the action appealed from, unless the person affected by such appeal certifies to the board by facts stated in the certificate, a stay would in his or her opinion cause imminent peril to life or property. In such case, proceedings shall not be stayed otherwise than by a restraining order, which may be granted by the board or a court of record on application and notice to the person from whom the appeal is taken.
(5) Powers.
(a) Variances: The board may authorize in specific cases a variance from the specific terms of this Article which will not be contrary to the public interest and where, owing to special or unusual conditions, a literal enforcement of the provisions of this Article results in unnecessary hardship, and provided that the spirit of the article shall be observed, public safety and welfare secured and substantial justice done. Such variance shall not permit any use not permitted by this Article in a zoning district. A request for a variance may be granted in such case; upon a finding of the board that all of the following conditions have been met:
(I) That the variance request arises from such conditions which are unique to the property in question and which are not ordinarily found in the same zone or district; and such conditions are not created by an action or actions of the property owner or applicant;
(II) That the granting of the permit for the variance will not adversely affect the rights of adjacent property owners or residents;
(III) That the strict application of the provisions of this Article of which variance is requested will constitute unnecessary hardship upon the property owner represented in the application;
(IV) That the variance desired will not adversely affect the public health, safety, morals, order, convenience, prosperity, or general welfare; and
(V) That granting the variance desired will not be opposed to the general spirit and intent of these regulations.
(b) Exceptions: The board may authorize in specific cases, the following exceptions:
(I) To permit the extension of a district where the boundary line of a district divides a lot in single ownership as shown of record.
(II) To interpret the provision of this Article where the street layout actually on the ground varies from the street layout as shown on the map fixing the several districts, which map is attached to and made part of this Article.
(III) To grant exceptions to the off-street parking requirements set forth in Section 16-501, when it is determined that the size and shape of the lot to be built on is such that off-street parking provisions could not be complied with, and that the proposed use will not create undue traffic congestion in the adjacent streets.
(IV) To grant exceptions to the side yard requirements for accessory detached private automobile garages on a lot where a conforming dwelling existed at the time of passage of these regulations; provided, however, that no detached garage shall be permitted to be closer than 60 feet to the front property line or to be located closer than 10 feet to a dwelling located on an adjacent lot.
(V) To permit the expansion of a building housing a nonconforming use which meets the following conditions:
(i) The nonconforming use is listed as a "permitted use" in C- Districts, as defined in this Article.
(ii) The expansion will not adversely affect any property in the area in which it is located.
(iii) The area of expansion shall not be to an extent exceeding a total of 1,000 square feet to the existing building or structure, unless the building or structure is changed to a conforming use.
(iv) The existing building or structure housing the nonconforming use shall be altered or improved so that it will conform to the construction of the expanded facility and will be of unifom1 architectural design.
(c) Standards: In exercising the above mentioned powers the board may, in conformance with the provisions of this Article, reverse or affirm, wholly or partly, or may modify the order, requirements, decisions, 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 powers of the officer from whom the appeal is taken. In considering all appeals from rulings made under this Article, the board shall in making its findings on any specific case, determine the effect of the proposed change upon the supply of light and air to adjacent property, upon the congestion in the public streets; upon the public safety from fire and other hazards, upon the established property values within the surrounding area, and upon other factors relating to the public health, safety, comfort, morals, and general welfare of the people of the city. Every ruling made upon any appeal to the board shall be accompanied by a written finding of fact based upon the testimony received at the hearing afforded by the board, and shall specify the reason for granting or denying the appeal.
(6) Appeal to District Court.
(a) An appeal from any action, decision, ruling, judgment, or order of the board of zoning appeals may be taken by any person or persons, jointly or severally, or any taxpayer, or any officer, department, board, or bureau of the City of Eudora to the district court by filing notice of appeal with the city clerk and with the board of zoning appeals within 30 days from the filing of the decision of the board. Such appeal shall determine the reasonableness of any such order or determination. Upon filing of the notice of appeal as herein provided, the board shall forthwith transmit to the court clerk of the county the original or certified copy or ruling of the board.
(b) An appeal to the district court from the board of zoning appeals stays all proceedings in furtherance of the action appeal from, unless the chairperson of the board of appeals, from which the appeal is taken certifies to the court clerk, after the notice of appeal shall have been filed, that by reason of facts stated in the certificate a stay would, in his or her opinion, cause imminent peril to life or property. In such case proceedings shall not be stayed otherwise than by a restraining order which may be granted by the district court upon application or notice to the administrative officer in charge of the enforcement of the terms and provisions of this Article, and upon notice to the chairperson of the board of zoning .appeals for which the appeal is taken, and upon due cause being shown, the court may reverse or affirm, wholly or partly, or modify the decision brought up for review.