HomeMy WebLinkAboutDecision whether to Discontinue the Board of Adjustment Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Chris Kukulski, City Manager
Prepared with assistance from Aimee Kissel, Deputy City Clerk and
Chris Saunders, Planning
Stacy Ulmen CMC, City Clerk
SUBJECT: Board of Adjustment
MEETING DATE: April 9, 2012
MEETING TYPE: Action
RECOMMENDATION:
If the Commission would like to remove the Board of Adjustment:
Staff recommends having the Unified Development Code revised in such a way that the Board of
Adjustment can be reconstituted if needed in the future without having to amend the code.
If the Commission would like to keep the Board of Adjustment:
Staff recommends the City Commission assist with aggressive recruitment of a full board.
Please also consider the recommendation from the City Attorney’s office regarding the
legal ramifications of removing the Board, attached hereto:
RECOMMENDED MOTION: I move to direct planning staff to prepare an Ordinance to
discontinue the Board of Adjustment while retaining the ability in the Bozeman Municipal Code
to reconstitute a Board of Adjustment in the future.
BACKGROUND: On October 3, 2011 staff and the Commission had a policy discussion
regarding the Board of Adjustment purview and the development review processes. This was due
to a rise in variance, deviation and conditional use permits being reclaimed by the City
Commission. Some had been at the applicant’s request, some at staff’s request; and some have
been because previous components of the development proposal were considered by the
Commission. Since that policy discussion in October, further applications have been reclaimed
by the City Commission due to the lack of a quorum on the Board of Adjustment. The lack of a
quorum has been due to members being out of town and is further complicated by terms that
expired January 31st. Of the two terms expiring, one has reapplied, the other has not. Recruitment
for the Board of Adjustment has become especially difficult because potential BOA members
understand that the recent trend has been for applicants to request that the Commission reclaim
authority.
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During the October 3, 2011 policy discussion, changes that will improve the development review
process were proposed by the Planning department. The City Commission provided direction
that they would like to see these changes move forward. Staff has incorporated these into the
work plan. Once the Unified Development Code is revised with the improvements previously
discussed the purview of the Board of Adjustment will change. At the time of the policy
discussion, the Commission indicated waiting for these changes without removing the Board of
Adjustment was appropriate.
In light of the difficulties in recruiting a full Board of Adjustment, staff would like clear
direction whether the Commission would like to continue having a Board of Adjustment or
whether the Board of Adjustment should be removed. If the Board of Adjustment is retained as
presently constituted, staff would like aggressive assistance from Commission members with
recruitment.
Staff would recommend that if the Commission does wish to remove the Board of Adjustment,
the language be drafted in a way that if a future Commission did want to reconstitute the Board
of Adjustment they could without major revisions to the Unified Development Code. This would
allow for flexibility in the future should the work load of the Commission significantly increase
or the views on the need for a Board of Adjustment change. Changes would also be made so that
future revisions to what is handled administratively will not require revisions to the body of the
Code to distinguish the purview of the Board of Adjustment or Commission.
FISCAL EFFECTS:
· Revisions to the Bozeman Municipal Code through the codification company cost $22
per page, $10 per image and $25 per Ordinance. If 80 to 90 pages need updated because
they refer to the Board of Adjustment – codification changes may cost about $2,000.
· The cost of staff time to draft the Ordinance to revise the code.
· If the Board of Adjustment is removed the Commission will have less time for broader
policy discussions.
ALTERNATIVES: Wait for other development process revisions to make changes to the
Board of Adjustment and continue reclaiming jurisdiction on applications whenever a quorum of
Board of Adjustment members is not available.
Attachments: Recommendation from City Attorney’s Office
Report compiled on March 29, 2012
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Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Tim Cooper, Assistant City Attorney
Greg Sullivan, City Attorney
SUBJECT: Board of Adjustment
MEETING DATE: April 9, 2012
AGENDA ITEM TYPE: Action
RECOMMENDATION: In your consideration of the fate of the Board, I recommend you
take into account the Montana Supreme Court’s statement that a zoning board of adjustment
serving as an appellate body vested with broad general powers is important to the validity of a
municipal zoning ordinance.
Statutory Framework
The Montana Supreme Court has ruled that a valid zoning regulation must provide an appeals
process.1
The Municipal Zoning Enabling Act authorizes the formation of a board of adjustment,
and nearly all municipal zoning ordinances in Montana incorporate a board of adjustment. An
appeals body, such as a board of adjustment, not only is legally required as part of land use
regulations, it should serve an essential practical function. Because no land use regulation can
possibly anticipate all future eventualities, some means must be provided for granting relief from
the regulations in appropriate situations. The means for providing this relief and giving the
necessary flexibility to a zoning ordinance is most often the board of adjustment. Some
communities call their board of adjustment a "board of appeals," a "zoning board of appeals," a
"zoning board," or other term. "Adjustment" may not be as descriptive a term as "appeals," but
Montana's municipal zoning enabling act refers to the board of adjustment as the agency serving
the quasi-judicial appellate functions.
1 “In order for [an] ordinance to comply with the requirements essential to the exercise of police
power …, it [is] essential that there should be an appellate body, such as the board of adjustment, with the
power to consider exceptional cases.” Freeman v. Board of Adjustment (1934), 97 Mont. 342, 356, 34
P.2d 534.
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Board Functions
The board of adjustment typically has three distinct functions:
1. to hear and decide on appeals of decisions made by the zoning administrator/permit officer;
2. to hear and decide on special exceptions when authorized by the land use regulations; and
3. to grant variances (waivers) from the requirements of a land use regulation where
special circumstances create a "hardship."
It is important to note that the board of adjustment exercises "quasi-judicial" powers. Regarding
land use law and administration, the local governing body is the legislative, or policy-making
authority; the administrative officer is the "executive" authority; and the board of adjustment is
the "judicial" authority. This separation of power and function in land use regulation is
important, just as the separation of powers is a vital part of American law in general. The permit
officer acts in an executive or administrative capacity to implement a land use regulation. The
permit officer's actions may be appealed to the board of adjustment by an applicant (where a
permit was denied) or by a citizen (who feels harmed by a decision to issue a permit). The
decisions and actions are reviewed, and can be upheld, modified or reversed by the board of
adjustment. An appeal from a decision by the board of adjustment is made to district court. The
judicial nature and function of the board is thus maintained by appealing to the court and not to
the governing body.
Other Issues
Throughout the American experience with zoning, misuse of board of adjustment powers has
undermined the effectiveness of many zoning ordinances. In most of these cases, the board
thought issuing variances was serving justice or being fair. In the past, some boards of
adjustment issued "use variances," which permitted uses in districts that were not allowed under
the regulations. Local officials, in drafting land use regulations, prohibited certain uses in a
district for a reason(s). When a board of adjustment issues use variances, the land use regulations
can quickly become ineffectual tools for implementing the community's land use plans and
policies. Also, granting use variances often results in "spot zoning." Variances are not the
proper means to remedy bad or poorly drafted land use regulations. The governing body,
through the process of amendment, is the only proper mechanism for correcting flawed
ordinances. This is the situation that led to the dissolution of the City Board of Adjustment in
2001 (it was reinstated in 2006). The Board issued a series of “compliance” variances that
permitted various property owners to redevelop property without compliance with the sign code
amortization requirements. They also granted relief in many instances without a showing of
hardship. Such actions are tantamount to amendments to an ordinance and can constitute an
improper exercise of legislative power.
The Municipal Zoning Enabling Act specifically allows local government to limit the powers of
the board of adjustment. Therefore, in drafting land use regulations, the City Commission
should clearly exclude the granting of use variances, compliance variances, or code amendments
from the powers of the board of adjustment. It should reserve to itself the authority to revise
regulations through the formal amendment process.
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If the Commission chooses to reserve to itself all the powers of the Board of Adjustment, it must
by necessity limit its land use decisions to “exceptional cases” – appeals from administrative
decisions, special exceptions, variances and other forms of relief – in order to assume the proper
role of appeal body and avoid the assumption of incompatible positions of permitting body and
appeal body. Other safeguards would also have to be present, such as the right of a person
aggrieved by your decision to appeal to a court of record, and the right of a landowner applicant
to the prescribed time frame for such appeals.
Report compiled on: March 29, 2012
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