§ 26-294. County board of adjustment.
(a)
Created; composition; terms; vacancies; removal. There is hereby created a county board of adjustment, which shall consist of seven members, of which number the chairman and secretary of the board of county commissioners and the chairman of the joint board of adjustment of any city, within the population classification referred to in this article, and duly appointed and elected in pursuance of the joint board of adjustment provisions of this chapter shall be ex officio members. The remaining four members of such board shall be chosen and elected by resolution of the legislative body of such city within such county. The members other than ex officio members shall be appointed for staggered terms of three years each, and it shall be no objection to the validity of the organization of the county board of adjustment that the term of any member of the city board of adjustment other than the chairman thereof, shall have expired. Vacancies in the membership of the county board of adjustment, other than the ex officio members, shall be filled for the unexpired term of the vacant member by the legislative body of such municipality. All members of the board, other than the ex officio members, shall be removable for cause by the appointing authority upon written charges and after hearing.
(b)
Compensation; expenses. The city and county legislative bodies shall have the power to appropriate monies to pay for clerical help and other necessary expenses of the county board of adjustment, but no member thereof shall receive any compensation for his services.
(c)
Officers. The county board of adjustment shall elect its own chairman, who shall serve for one year, and shall elect its secretary, who may or may not be a member thereof, and who may receive such compensation as may be fixed by the joint action of the legislative bodies of such city and county; provided, however, that the board of adjustment may designate and appoint the secretary of the city board of adjustment as the secretary, who shall hold office at the will and pleasure of the board, and whose compensation shall be fixed by the county board of adjustment, subject to the approval of the county and city legislative authorities.
(d)
Rules; meetings; oaths; witnesses. The county board of adjustment shall adopt rules in accordance with the provisions of any regulations adopted pursuant to this article and may adopt any not in conflict with the provisions of such regulations or with the provisions of this article. Meetings of the board shall be held at the call of the chairman and at such other times as the board may determine, but the board shall meet not less than once each month. The chairman, or in his absence, the acting chairman, 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 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 board and shall be a public record.
(e)
Appeal authority and procedure. Appeals to the county board of adjustment may be taken by any person aggrieved or by any officer, department, board or bureau of the city or county affected by any decision of the county building commissioner or other administrative officer. Such appeal shall be taken within five days, by filing with the officer from whom the appeal is taken and with the board a notice of appeal specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the board all the papers constituting the record upon which the action appealed from was taken.
(f)
Effect of appeal. An appeal shall stay all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken certifies to the county board of adjustment after the notice of appeal shall have been filed with him that by reason of facts stated in the certificate a stay would, in his opinion, cause imminent peril to life and property. In such case, proceedings shall not be stayed otherwise than by a restraining order which may be granted by the county board of adjustment or by a court of record on application of notice to the officer from whom the appeal is taken and on due cause shown.
(g)
Hearing of appeal; decision. The county board of adjustment shall fix a reasonable time for the hearing of the appeal and decide the same within a reasonable time.
(h)
Powers. The county board of adjustment shall have the following powers:
(1)
To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this article or of any regulation adopted pursuant hereto.
(2)
To hear and decide all matters referred to it upon which it is required to pass under such regulations.
(3)
In passing upon appeals, where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of such regulations, to vary or modify the application of any of the regulations passed pursuant to this article relating to the use, construction or alteration of buildings or structures or the use of land so that the spirit of the regulations and this article shall be observed, the public health, safety, morals, convenience and welfare secured and substantial justice done.
(i)
Scope of decision. In exercising the powers referenced in subsection (h) of this section, the county board of adjustment may, in conformity with the provisions of this article, reverse or affirm, 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 officer from whom the appeal is taken.
(j)
Vote required. The concurring vote of five-sevenths of the members of the county board of adjustment shall be necessary to reverse any order, requirement, decision or determination of any such administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under any such regulations, or to effect any variation in such regulations.
(k)
Petition for certiorari. Any persons jointly or severally aggrieved by any decision of the county board of adjustment may present to the circuit court of the county a petition for certiorari, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Such petition shall be presented to the court within 30 days after the filing of the decision of the board.
(l)
Action by court. Upon presentation of such petition, the circuit court may allow a writ of certiorari directed to the county board of adjustment to review its decision and shall prescribe therein the time within which a return thereto must be made, which shall not be less than ten days and may be extended by the court. The allowance of the writ shall not stay the proceedings upon the decision appealed from, but the court may, on application, and on notice to the board and on due cause shown, grant a restraining order or supersedeas on such conditions as it may fix.
(m)
Return of papers. The county board of adjustment shall not be required to return the original papers acted upon by it, but it shall be sufficient to return sworn copies thereof or of such portion thereof as may be called for by the writ. The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified.
(n)
Taking evidence; decision of court. If upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take additional evidence or appoint a referee to take such evidence as it may direct and report same to the court with his findings of fact and conclusion of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review, or may remand the matter to the county board of adjustment for further proceedings under such orders and directions as it may make.
(o)
Priority of court proceedings. All issues in any proceeding under this section shall have preference over all other civil actions and proceedings except such as may be given prior preference by other provisions of law.
(p)
Alternative composition; name of board. If the county shall, pursuant to any act of the general assembly of the state, have a county board of adjustment with countywide jurisdiction, then the board created by this section shall be composed of the chairman of the board of commissioners, the chairman of the board of adjustment of any municipality in the county having a population in excess of 160,000 inhabitants by the federal census of 1930 or any subsequent federal census, all of whom shall be ex officio members of the board of adjustment, and four other members, three of whom are to be chosen from among the members of such city board of adjustment by the legislative body of such municipality, the other to be appointed by the board of county commissioners from among the members of the county board of adjustment. Such board shall have the right to adopt a name which shall be distinctive so that such board shall not be confused with any other county or city board of adjustment. The members of said board of adjustment, and the board as such, shall have, exercise and enjoy all the powers, duties, liabilities and privileges set out in this article.
(Code 1992, § 25-335; Priv. Acts 1931, ch. 613, § 11; Priv. Acts 1935, ch. 707, § 1)