Petition for Board of Adjustment Review
The following information pertains to the Board of Adjustment, as noted under Chapter 400 Zoning Regulations, being part of Title IV Land Use of the Olivette Municipal Code.
SECTION 400.1630: APPEALS
A. Appeals to the Board may be taken by any person aggrieved, any neighborhood organization as defined in Section 32.105, RSMo., representing such person, or by any officer, department, board or bureau of the City of Olivette affected by any decisions of the Building Official. Such appeal shall be taken within a reasonable time by filing with the Building Official and with the Board of Adjustment a notice of appeal, specifying the grounds thereof and by paying a filing fee as specified in City ordinance. The Building Official shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from is taken.
B. An appeal stays all proceedings in furtherance of the action appealed from unless the Building Official certifies to the Board after the notice of appeal shall have been filed with him/her that, by reason of facts stated in the certificate, a stay would, in his/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 by a court of record on application or notice to the Building Official and on due cause shown.
C. The Board shall fix a reasonable time for the hearing of the appeal, give public notice thereof, as well as due notice to the parties in interest, and decide the same within a reasonable time. Upon the hearing, any party may appear in person or by agent or by attorney.
SECTION 400.1640: JURISDICTION
The Board shall have jurisdiction in the following instances:
1. To hear and decide appeals where it is alleged there is error in any order, requirements, decision or determination made by the Building Official in the enforcement of this Chapter.
2. To interpret the provisions of this Chapter in such a way as to carry out the intent and purpose of the Zoning Map fixing the several districts, where the street layout actually on the ground varies from the street layout as shown on the Zoning Map.
3. To permit the erection and use of a building or the use of premises in any location for a public service corporation or for public utility purposes necessary to the public convenience or welfare.
4. To permit the reconstruction of a non-conforming building which has been destroyed or partially destroyed by fire or other act of God where the Board shall find some compelling public necessity requiring a continuance of the non-conforming use and in no case shall such a permit be issued if its primary function is to continue a monopoly.
5. To authorize a variance where, by reason of exceptional narrowness, shallowness or shape of a specific piece of property of record, or by reason of exceptional topographical conditions, or other extraordinary or exceptional situation or condition of a specific piece of property, the strict application of any provision of this Chapter would result in peculiar and exceptional practical difficulties and particular hardship upon the owner of such property and amount to a practical confiscation of such property as distinguished from a mere inconvenience to such owner, provided such relief can be granted without substantial detriment to the public good and without substantially impairing the general purpose and intent of the Comprehensive Plan as established by the regulations and provisions contained in this Chapter.
In considering all proposed variances, the Board shall, before making any finding in a specific case, first determine that the proposed variance will not constitute any change in the Zoning District Map and will not impair an adequate supply of light and air to adjacent property or unreasonably increase the congestion in public streets or increase the public danger of fire and safety or diminish or impair established property value within the surrounding area or in any other respect impair the public health, safety, comfort, morals and welfare of the City of Olivette. Every variance granted or denied by the Board shall be accompanied by a written finding of fact, based on sworn testimony and evidence, specifying the reason for granting or denying such variance.
In exercising the above-mentioned powers, the Board may, in conformity with the provisions of the law, 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 Building Official.
The concurring vote of four (4) members of the Board shall be necessary to reverse any order, requirement, decision or determination of the Building Official or to decide in favor of the applicant on any matter upon which it is required to pass under this Chapter or to effect any variance.
SECTION 400.1650: JUDICIAL REVIEW
A. Any person, any neighborhood organization as defined in Section 32.105, RSMo., representing such person or persons, or any officer, department, board or bureau of the municipality, or persons jointly or severally aggrieved by any decision of the Board of Adjustment may present to the Circuit Court of the County of St. Louis, Missouri, a petition duly verified setting forth that such decision is illegal, in whole or in part, and specifying the grounds of illegality. Such petition shall be presented to the court within thirty (30) days after the filing of the decision in the office of the Board.
B. Upon the presentation of such petition, the court may allow a writ of certiorari directed to the Board to review such decision of the Board and shall prescribe therein the time within which a return thereto must be made and served upon the relator's attorney, which shall not be less than ten (10) days and may be extended by the court. The allowance of the writ shall not stay proceedings upon the decision appealed from but the court may, on application, on notice to the Board and on due cause shown, grant a restraining order.
C. The Board shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies thereof or of such portion thereof as may be called for by such 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. 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 the same to the court with his/her findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which a 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.
D. Costs shall not be allowed against the Board unless it shall appear to the court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from.