Municipal Officials Training Academy Municipal Officials Training Academy Preparing and Running Successful Board of Preparing and Running Successful Board of Adjustment Meetings Adjustment Meetings TED BY : : PR PREPARED AND PRES EPARED AND PRESENTED BY P AUL AUL V. V. R OST OST , E SQ SQ . . C UNNINGHAM UNNINGHAM , V OGEL OGEL & R OST OST , P.C. P.C. leg legal counselors to local government l counselors to local government 33 333 S. S. K IRKWOOD IRKWOOD R OAD OAD , S UITE UITE 300 300 S T . L OUIS OUIS , M ISSOURI ISSOURI 63122 63122 31 314.446.0 4.446.0800 800 www www.m .mun unici icipal alfi firm rm.com .com da dan@mu muni nicipa cipalf lfirm.co irm.com m September 26, 2013 September 26, 2013
1 September 26, 2013 Muni Municip cipal Officia l Officials s Trainin Training Academy Academy Preparing and Running Successful Board of Adjustment Meetings September 26, 2013 Paul V. Rost Paul V. Rost C UNNINGHAM , V OGEL & R OST , P.C. 333 South Kirkwood Road, Suite 300 St. Louis, Missouri 63122 314.446.0800 paul@municipalfirm.com www.municipalfirm.com Today’s Topics Board Overview I. Administrative Decision II. Preparing for the Meeting III. Running the Meeting IV. Types of and Standards for Granting V. Variances Real Life Examples VI. VII. Some Thoughts on Appeals I. Board Overview Municipal Officials Training Academy Board of Adjustment Presentation Presented by Paul V. Rost
2 September 26, 2013 What Can the Board do? Determine and vary the application of regulations and restrictions of City in harmony with their general purpose and intent and in accordance with general or specific rules therein contained § 89.080 R.S.Mo. Who Makes up the Board? Shall consists of 5 members and up to three 3 alternate members may be appointed ‐‐ all members must be residents of the municipality. ( § 89.080 RSMo.) The Chairman or Vice Chairman may administer oaths and compel attendance of witnesses. ( § 89.080 RSMo.) What Can the Board Decide? Board may hear and decide two (2) types of matters : 1. Appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of any ordinance adopted pursuant to the zoning enabling statute (sections 89.010 to 89.140); and 2. All matters referred to it or upon which it is required to pass Municipal Officials Training Academy Board of Adjustment Presentation Presented by Paul V. Rost
3 September 26, 2013 Powers of the Board In exercising its powers to hear these types of matters: May vary or modify ʺ application ʺ of regulation to avoid ʺ practical difficulties or unnecessary hardship in … carrying out the strict letter of such ordinance . ʺ § 89.090 R.S.Mo. Must act only to carry out the ʺ spirit ʺ of the ordinance, and May not grant a variance without ʺ competent and substantial evidence.” Has all powers of the officer from whom appeal is taken. Decision Authority of the Board? reverse or affirm , wholly or partly; or modify the order, requirement, decision or determination appealed from Remember: Can add conditions to the approval make such order, requirement, decision or determination as ought to be made II. Administrative Decision Municipal Officials Training Academy Board of Adjustment Presentation Presented by Paul V. Rost
4 September 26, 2013 Administrative Official’s Decision Notes Written Determination by Zoning Official Include reason(s) for denial But not overly specific Include right to appeal and cite time frame (if city has one) Appeal of Administrative Official’s Decision: Who Can Appeal to the Board? Board may decide Appeals from: ʺ aggrieved ʺ persons (1) certain neighborhood organization or (2) an officer, department, or board of the city (3) Affected by a decision of the administrative officer (89.100 RSMo.) When Appeal Must be Taken “…within a reasonable time, as provided by the rules of the board” Section 89.100 Municipal Officials Training Academy Board of Adjustment Presentation Presented by Paul V. Rost
5 September 26, 2013 III. Preparing for the Meeting Who May Call the Meeting? A meeting is held at the call of the Chairman or at such other times as the Board may determine. (89.080 RSMo. ) Required Notice? The Board of Adjustment shall: fix a reasonable time for the hearing of appeal give “public notice” give “due notice” to the parties in interest 89.100 RSMo. Municipal Officials Training Academy Board of Adjustment Presentation Presented by Paul V. Rost
6 September 26, 2013 What does a “reasonable time” mean? There is no set rule as to what a “reasonable time” is Chapter 89 silent on exact time Check Code – some mandate 7 days – not less than 10 days, etc. If Code is silent, check past practice At minimum, comply with Sunshine “Public Notice” Sunshine Law OPEN MEETINGS : Posting – 24 hours in advance Notice – of time, place and purpose of meeting (agenda) Check code for posting on property requirements Who Are “Interested Parties” and What is Due Notice? Generally who are “Parties of Interest”? The owner complaining of an order appealed to the Board the public official making the order; and Adjoining property owners Neighboring property but not adjoining not interested parties Due notice is satisfied by: Posting on property or letter to property owners Notice by publication is sufficient for adjoining property owners. See Himmel v. Leimkuehler, 329 S.W.2d 264 (Mo. App. 1959)(Finding posting hearing notice on front and back of property was sufficient notice to property owner and publication was sufficient notice for parties of interest) Municipal Officials Training Academy Board of Adjustment Presentation Presented by Paul V. Rost
7 September 26, 2013 Others Who Must be Invited: 1. City Clerk or Secretary to: Keep minutes showing the vote (or abstention) of each member Keep records of its examinations and other official actions, immediately filed in office of board as a public record 2. Court Reporter to: “take down” all testimony , objections thereto and rulings thereon 89.090 RSMo. 3. Administrative official that made decision and any other required city officials Suggested Evidence to Prepare: The City ʹ s zoning ordinance; The application for permit; The City official ʹ s letter or memo denying the permit; Site, building or elevation plans, if applicable; The Petition for Appeal from Zoning Regulations; Any photos or other depictions of the desired variance; A copy of the notice of public hearing; and Any correspondence from the applicant or City official regarding the application for the permit. Will Quorum be Present? The Board should not meet with less than four (4) members. The concurring vote of four (4) members is needed to decide in favor of the applicant or reverse any order, requirement, decision or determination of any administrative official. ( § 89.090 RSMo.) Municipal Officials Training Academy Board of Adjustment Presentation Presented by Paul V. Rost
8 September 26, 2013 IV. Running the Meeting Introduction of the Meeting The meeting must be open ‐‐‐ closed session NOT allowed. The Chairman should call the meeting to order and state that it was duly publicized. The Chairman or clerk shall call the roll of the Board. State that the City Code and all ordinances are present for review and made a part of the record. Explain Court Reporters’ role Explain that City will present findings first and then applicant put on his/her evidence See Example Script on Handout Procedure of Board of Adjustment Hearing It’s just like a trial exhibits witnesses/sworn testimony transcript of proceedings Appeal to Circuit Court By aggrieved person or the Board of Aldermen defers to Board if “substantial and competent” evidence supporting decision will not second ‐ guess decision See Handout – Board of Adjustment Meeting Procedures Municipal Officials Training Academy Board of Adjustment Presentation Presented by Paul V. Rost
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