Article X. THE BOARD OF ADJUSTMENT, Appendix A. ZONING ORDINANCE, Code of Ordinances, Olive Branch

Establishment . A board of adjustment is hereby established, in accordance with the provisions of MCA 1972, Arts. 17-1-13 and 17-1-17, with the powers and duties set forth in this article. The board of adjustment is established to further the general purpose and intent of this article by varying its terms in appropriate circumstances, subject to conditions and safeguards, in accord with the other provisions herein.

Members. Appointment, and Terms of Office . The board of adjustment shall consist of seven members, who shall be appointed by the mayor and confirmed by the board of aldermen for a term of office concurrent with the term of office of the governing authority. The board of aldermen, at their discretion, may remove any member of the board of adjustment at any time. Vacancies shall be filled for the un-expired term of any member.

Officers . The board of adjustment shall elect a chairman and a vice-chairman from among its members. These officers shall serve a term of one year and may be re-elected.

Meetings and voting . Meetings of the board of adjustment shall be at the call of the chairman and at such other times as the board of adjustment shall determine. All meetings of the board of adjustment shall be open to the public. The board of adjustment shall keep minutes of its proceedings, showing the vote of each member upon the question, or if absent or failing to vote, indicating that fact. The board of adjustment shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the board of adjustment and shall be of public record.

Administrative and procedural rules . The board of adjustment shall adopt administrative and procedural rules for the conduct of its business, establishment of a quorum, and all other policies and procedures.

Territorial jurisdiction . The board of adjustment shall have jurisdiction over all the land subject to the City of Olive Branch Zoning Ordinance to the extent of the limits of its authority.

Powers and duties . The board of adjustment shall have the following powers and duties:

Appeals . To hear and decide appeals, where it is alleged there is an error in any order, requirement, decision, or determination made by the administrative official in the enforcement of this article. All appeals must be made in writing within ten days of notice thereof.

Appeals to the board of adjustment may be taken from the person aggrieved or from an officer, department, or bureau of the city government affected by any decision of the administrative official. Such appeals shall be taken by filing with the planning and building department, in writing, a notice of appeal specifying the grounds thereof. Such appeal shall be filed within ten days of the date of the decision of which the applicant is aggrieved. The administrative official shall transmit to the board of adjustment all papers constituting the record upon which the action appealed from was taken.

An appeal stays all proceedings in furtherance of the action appealed from, unless the administrative official, after the notice of appeal having been filed, by reason of facts stated in the record, a stay would, in his 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 of adjustment or by a court of record on good cause shown.

On evaluating an appeal, the board of adjustment shall be limited to a determination of the propriety of the action taken by the administrative official. In exercising its authority, the board of adjustment may, as long as such action is in conformity with the terms of this article, reverse, affirm, or modify, wholly or in part, 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 the powers of the administrative official.

The board of adjustment shall not, by its decision on an appeal, permit a variance in the application of the regulations of this article.

Variances . To authorize, in specific cases, such variance from the terms of this article as will not be contrary to the public interest, and where, owing to special conditions, a literal enforcement of the provisions of this article would, in an individual case, result in unnecessary hardship, provided the spirit of these regulations shall be observed, public safety and welfare secured, and substantial justice done.

Generally . A request for a variance may be granted upon a finding by the board of adjustment that all of the following criteria have been met.

The variance requested arises from special conditions or circumstances which are unique due to the particular shape, size, location, or topography of a lot or parcel, or a structure thereon, and which are not ordinarily or generally found in the same zone or district.

The special conditions or circumstances do not result from the actions of the applicant.

That literal interpretation of the provisions of this article would deprive the applicant of rights commonly enjoyed by other properties in the same zone or district under the terms of this article.

That granting the variance will not confer on the applicant any special privilege that is denied by this article to other lands, structures, or buildings in the same zone or district.

Notes:

Approval of a variance must be based upon the presence of a hardship, not simply to serve the mere convenience of the applicant.

The potential for economic loss or gain on the part of the applicant resulting from the action of the board of adjustment shall not be considered a sufficient basis for the approval of any variance.

The board of adjustment does not possess the authority to grant a variance permitting the use of land or a building that is not a permitted use within the zoning district involved.

Conditional approval . In granting a variance, the board of adjustment may impose such conditions, safeguards, and restrictions upon the premises benefited by the variance as may be necessary to 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 this article.

Nature of the approval .

In granting a request for a variance, the board of adjustment may require the owner of the subject property to make a written commitment concerning the use or development of the property for recording in the Office of the Chancery Clerk.

Unless otherwise specified by the board of adjustment at the time the variance is granted, the approval of the variance runs with the land, and not to the individual who applied. Consequently, the variance is transferable to any subsequent owner of the subject property, and cannot be transferred by the applicant to another site.

Unless otherwise specified by the board of adjustment at the time the variance is granted, the approval of the variance shall continue for an indefinite period of time, except that if a building permit is not obtained, or the approved variance otherwise utilized within 90 days following the date it was granted, the approval shall become null and void.

Where a property-owner fails to comply with any condition and/or commitment permitted or required by the grant of the variance, shall be deemed a violation of this article, and punishable under Article XIII of this Ordinance. Additionally, the board of adjustment may authorize any other action it may deem appropriate to obtain compliance by the owner with the terms of this article as if the variance had not been granted.

Approval process .

Application . The applicant shall submit a statement, in writing, to the planning and building department, including the following:

(1)

Indicating specifically the enforcement provisions of the ordinance from which the variance is requested.

(2)

Describing in detail the proposed variance.

(3)

Justifying the variance by outlining in detail how the request meets the specific criteria listed above.

Site plan . The applicant shall submit a site plan showing the lot or lots involved in the application, the structures existing thereon, and/or the structures contemplated necessitating the variance requested. All appropriate dimensions and any other information which would be helpful to the board of adjustment in consideration of the application shall be included.

Public hearing . Upon submission of the application and site plan, the administrative official shall set down the request for a public hearing before the board of adjustment at their next available regular meeting where notice of the public hearing can be given within a newspaper of general circulation within the community at least 15 days prior to said meeting. The public hearing may be continued from time to time.

Action . Following conclusion of the public hearing, the board of adjustment shall consider the request in light of the written application, the site plan, and input from the city staff. The board of adjustment shall then render a decision on the request, either denying it, approving it, or approving it subject to certain stated conditions. With its decision, the board of adjustment shall make findings concerning whether the requirements of the specific criteria required for the approval a variance have been met.

Conditional use permits .

Authority . It is hereby declared that certain developments and land uses present unique problems with respect to their proper location and relationship to other land uses. Therefore, analysis and judgment of the consequences of each development and use is necessary to preserve and promote the health, safety, and general welfare of the adjacent properties, the neighborhood, and the community as a whole. Subject to the provisions of this article, the board of adjustment may review, and by resolution grant, a permit for the uses enumerated as conditional uses in any zoning district as herein qualified, and shall have the authority to impose appropriate conditions and safeguards to protect adjacent properties and property values within the neighborhood.

Approval process . The granting of a conditional use permit may be initiated by a verified application of one or more of the owners of record or owners under contract of a lot or parcel of land, or their authorized representatives, or by a resolution of intent by the board of aldermen or the board of adjustment. Procedures for application, review, and approval of a conditional use permit shall be as follows:

Application . Application for a conditional use permit for a specific tract of land shall be addressed to the board of adjustment and filed in the planning and building department. The application shall be filed on forms prescribed for that purpose and accompanied by the following:

(1)

A filing fee as required by the city.

(2)

Legal description of the property.

(3)

A site plan conforming to the requirements of Article V, § 5(K)(4)a. of the zoning ordinance.

Board of adjustment action . Following conclusion of the public hearing, the board of adjustment shall consider the request in light of the written application, the site plan, input from the city staff, and the submitted evidence. The board of adjustment shall then render a decision on the request either denying it, approving it, or approving it with certain stated conditions. With its decision, the board of adjustment shall make findings concerning whether:

(1)

The proposed conditional use will adversely affect the character of the neighborhood. 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 or significantly impair the development and use of adjacent properties or the surrounding neighborhood. In determining whether the conditional use will so dominate the immediate neighborhood, consideration shall be given to:

(A)

The location, nature, and height of fences, walls, buildings and structures on the site.

(B)

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

(C)

The size of the site in relation to the size of surrounding properties.

(D)

The size and architectural style of the proposed buildings and structures in relation to the size and architectural style of buildings and structures on surrounding sites.

(E)

The fire occupancy of the proposed buildings and structures.

(F)

The anticipated level of traffic generated by the proposed use and the nature of that traffic (i.e., automobiles or truck traffic) in relation to normal levels of traffic within the neighborhood, the current classification of the road system, and the impact of the use on the current level of service of the road system.

(G)

The nature of all proposed exterior lighting and its relationship to adjacent properties.

(H)

The nature of the proposed use and if it can be operated in a manner that is not detrimental to the permitted uses within the district

(2)

The proposed conditional use will overtax public utilities or community facilities, and that adequate utility, drainage, and other such necessary facilities are available or will be provided.

(3)

The proposed conditional use will substantially increase traffic congestion or other hazards. That adequate provisions for off-street parking, loading areas, internal vehicular and pedestrian traffic, access roads, and entrance drives have been made and designed to prevent traffic hazards, and to minimize traffic congestion in public streets and alleys.

(4)

The proposed conditional use will increase the danger of fire, flood, or otherwise endanger the public health, safety, or general welfare.

(5)

The proposed conditional use will substantially diminish or impair property values of adjacent properties, the neighborhood, or the community as a whole.

(6)

The proposed conditional use complies with the recommendations of the comprehensive plan, or any sub-plans that are applicable to the neighborhood or sector of the city. If the facts of the case do not establish that the standards set forth in this article shall be met, the board of adjustment shall deny the request.

Burden of proof . In presenting any application for a conditional use permit to the board of adjustment for review and approval, the burden of proof shall rest with the applicant to provide any necessary evidence required by the board of adjustment to clearly indicate that the propose conditional use shall meet the above-referenced criteria.

Conditions and safeguards . In approving a conditional use permit, the board of adjustment may impose such conditions and safeguards as it determines necessary to meet the aforementioned standards and criteria. These conditions may include, but are not necessarily limited to, the following:

(1)

Hours of operation.

(2)

Architecture of the proposed buildings and structures.

(3)

All proposed landscaping.

(4)

Screening and buffering.

(5)

Access to the site, provisions for off-street parking and loading areas, provisions for pedestrian traffic.

(6)

Exterior lighting provisions.

(7)

Sign regulations.

(8)

Permitted uses, including maximum floor area limitations.

(9)

Setbacks and other performance standards.

These, and any other conditions deemed necessary by the board of adjustment, may be made more restrictive than the minimum requirements of the respective zoning district within which the subject property is located.

Performance guarantee . As a condition of approval, the board of adjustment may require deposit of a performance guarantee by the applicant, conforming to the requirements of Section 1.14 of the Design Review Ordinance, with the city clerk, in an amount sufficient to insure performance of any obligations of the applicant to make any public or private improvements required by the city, shown upon the site plan accompanying the conditional use permit application, attested to in any other accompanying documents, or by testimony.

Written commitment . As a condition of approval for any conditional use permit, the board of adjustment may permit or require the owner of the subject property to make a written commitment concerning the use or development of the parcel.

Permit effective, when . Unless the action of the board of adjustment is appealed, a conditional use permit shall become effective ten days following the date of the regularly scheduled meeting of the board of adjustment at which the permit was approved; however, in the event that some additional approval is required by some other governmental authority or agency, such as the DeSoto County Health Department or the Mississippi Department of Transportation, the permit shall not become effective until that approval is secured, and evidence of same submitted to the planning and building department for the file, in writing.

Effect of denial . Upon denial of an application for a conditional use permit, the board of adjustment shall so notify the applicant in writing. No subsequent application for the same conditional use, with reference to the same property or part thereof, shall be filed by any applicant until the expiration of a period of 12 months from the date of the regularly scheduled meeting of the board of adjustment at which the permit was originally denied. In the event that the action of the board of adjustment is appealed, the 12 month period shall be calculated from the date of the final action by the board of aldermen or the final court judgment.

Time limitation on conditional use permits . Conditional use permits shall be valid for a limited period of time. The board of adjustment shall specify the time period, which shall be provided as a condition in the approval of a specific permit. Upon expiration of the time limit specified in a permit, the property-owner may request a new conditional use permit.

Revocation of conditional use permit . A conditional use permit may be terminated by the board of adjustment, upon the filing of an application therefore by the Mayor or a member of the board of aldermen, a member of the planning commission or the board of adjustment, or the administrative official, and upon a finding at a public hearing, with notice to the property-owner, that the terms of this article, or conditions of the specific approval, or written commitments have not been complied with.

Transferability . All conditional use permits shall be approved for the originating applicant for a specific location, and may not be transferred to any other location by that applicant. Should the business or use for which the conditional use permit was sought be transferred to a different ownership, a renewal of the original conditional use permit shall only be required in those instances where:

The use of the property will be changed from the use for which the original permit was issued.

The site upon which the use is located or the structure within which the use is housed will be changed.

Expansion, extension, and enlargement . A conditional use permit approved by the board of adjustment may not be expanded, extended, or enlarged unless the proposed expansion, extension, or enlargement is subsequently reviewed and approved by the board of adjustment under the procedures set forth in this article for approving a new permit.

Amendment of an approved conditional use permit . In order to amend an existing conditional use permit, the application, required materials, approval process, and appeals process shall be the same as for a new permit.

Interpret the provisions of this article as they pertain to the location of district boundaries where uncertainty exists as to the location of the district boundaries in relation to the official zoning map. The following rules for interpretation shall apply:

Where a boundary line is given a position within street, road, or alley, it shall be deemed to be in the center of that street, road or alley. A boundary indicated as approximately following the centerline of a highway, road, street, alley or easement, shall be construed as following such centerline. If the location of such street, road, or alley varies from the location as shown on the official zoning map, then the actual location shall control.

A boundary indicated as approximately following a recorded lot line or the line bounding a parcel shall be construed as following such line.

A boundary indicated as approximately following a State boundary, the corporate boundary line of a city, village, school district, county, section, township, or range line shall be construed as following such line.

A boundary indicated as following a railroad line shall be construed as being midway between the main tracks.

A boundary indicated as following a shoreline shall be construed as following such shoreline, and in the event of a change in a shoreline shall be construed as following the actual shoreline.

A boundary indicated as following the centerline of a drainageway, creek, stream or river shall be construed as following such centerline, and in the event of a change in such drainageway, creek, stream, or river shall be construed as following the actual centerline.

A distance not specifically indicated on the official zoning map shall be determined by the scale of the map.

Where a physical or cultural feature existing on the ground is at variance with that shown on the official zoning map, or in any other circumstance not covered by subsections 1.—7. above, the board of adjustment shall interpret the zoning district boundary.

Existence of a Nonconforming use . In cases of doubt, and oh specific questions raised, whether a nonconforming use exists shall be a question of fact and shall be decided by the board of adjustment following public notice and a hearing on the matter.

Change of Nonconforming use . If no alterations are made, any nonconforming use of a structure and premises, may be changed to another nonconforming use provided that the board of adjustment shall find that the proposed use is equally appropriate to the district than the existing nonconforming use. Such request shall follow the same administrative course as application for a conditional use.

Design review ordinance . To hear and decide applications for variances from the strict requirements of the design review ordinance.

City building/electrical/mechanical/and plumbing codes . To act as the construction board of adjustment and appeals as established by those codes.

Other matters . To hear and decide all other matters referred to it, and to prepare and submit to the board of aldermen reports relating to its investigations and recommendations.

Appeal of board of adjustment action .

Appeal to the board of aldermen . Any person or persons aggrieved by any decision of the board of adjustment may appeal such decision to the board of aldermen by filing a "notice of appeal," in writing, with the city clerk within ten days from the date of the regularly scheduled meeting of the board of adjustment at which the action was taken. Upon a majority vote of those present and voting, the board of aldermen may affirm, reverse, remand, or modify the decision of the board of adjustment.

Appeal to the circuit court . Any person or persons, jointly or severally aggrieved by any decision of the board of aldermen, may present to the DeSoto County Circuit Court a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of illegality. Such petition shall be presented to the court within ten days from the date of the regularly scheduled meeting of the board of aldermen at which the action was taken. If the court finds that there is insufficient evidence within the record to support the decision of the board to the extent that the issues before the court are not fairly debatable, the court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.

(Ord. of 11-20-01(3), § 1)