A Board of Zoning Appeals (BZA) is hereby established. Membership of the BZA shall consist of the members of the Planning Commission, as provided by K.S.A. 12-759, that authorizes the City Planning Commission to act as the BZA. All members of said Board shall serve without compensation.

The BZA shall annually elect one (1) of its members to serve as chair, one (1) as vice chair, and shall appoint a secretary who may be an officer or an employee of the City.

The BZA shall adopt bylaws and rules of procedure for the conduct of business. These may be combined with the same documents of the Planning Commission.

Meetings of the BZA shall be held at the call of the chair and at such other times as the BZA may determine necessary.

The BZA shall keep, or cause to be kept, minutes of its proceedings showing evidence presented, findings of fact by the BZA, decisions of the BZA, and voting upon each question. Records of all official actions of the BZA shall be filed in the office of the City Zoning Administrator shall be a public record.

For the purpose of wholly or partially defraying the cost of the proceedings prescribed herein, including publication costs, the applicant, upon filing an appeal, shall pay to the City Clerk a fee in the amount as determined by a schedule of fees maintained by the Governing Body.

Promptly upon filing the appeal and required filing fee, the City Clerk shall refer said appeal to the Zoning Administrator and/or Secretary of the BZA.

The BZA will set a date, time and place for a public hearing, an appeal, or other matters within their jurisdiction. Notice of the date, time, and place, as well as the subject of such hearing shall be published once in the official newspaper at least twenty (20) days prior to the date fixed for hearing. A copy of said notice, as well as an affidavit of publication, shall be provided to each party to the appeal and to the members of the BZA.

The BZA shall administer the details of appeals or other matters referred to it regarding the application of the Zoning Ordinance. The BZA shall have the following specific powers:

A.    To hear and decide on appeals where it is alleged that there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of the Zoning Ordinance.

B.    To interpret the provisions of the Zoning Ordinance in such a way as to carry out the intent and purposes of the comprehensive plan, legally platted properties, and developments, and make determinations and findings of facts on conflicting plans and specifications.

C.    To hear, approve, or deny variance applications from the specific terms of the regulations which will not be contrary to the public interest and where, due to special conditions, a literal enforcement of the provisions of the regulations, in an individual case, results in unnecessary hardship, and provided that the spirit of the regulations shall be observed, public safety and welfare secured, and substantial justice done. Such variance shall not permit any use not permitted by the zoning regulations in such district. See SECTION 10 of this article for variance requirements and procedures.

D.    To grant exceptions by Special Use Permit (SUP) to the provisions of the zoning regulations in those instances where the board is specifically authorized to grant such exceptions and only under the terms of the zoning regulations. In no event shall exceptions to the provisions of the zoning regulation be granted where the use or exception contemplated is not specifically listed as an exception in the zoning regulations. Further, under no conditions shall the BZA have the power to grant an SUP when conditions for approval, as established in the zoning regulations by the Governing Body, are not found to be present.

A.    Appeals to the BZA may be made by any person aggrieved, or by any officer of the City, or any governmental agency or body affected by any decision of the official administering the provisions of this Zoning Ordinance.

B.    Appeals shall be taken within a reasonable time, as provided by the rules of the BZA, by filing a notice of appeal specifying the grounds thereof and payment of the required filing fee. The appeal must be filed with the City Zoning Administrator.

C.    Appeals and requests to the Board for variances and exceptions to this Zoning Ordinance shall be prepared and submitted on forms approved by the BZA.

D.    After filing the required appeal or request and payment of the required fee, the BZA shall advertise and hold a public hearing as provided in SECTION 7 above.

E.    Notice of the decision of the Board of Zoning Appeals shall be in writing  and transmitted to the appellant. A copy of such decision shall also be transmitted to the Zoning Administrator for filing and action, if action is required.

F.    Any person, official or governing agency dissatisfied with any order or determination of said Board may bring an action in the District Court of the County, to determine the reasonableness of any such order or determination.

Variance applications are filed with the Zoning Administrator and per K.S.A., an application is presented to the Planning Commission/Board of Zoning Appeals (PC/BZA) for review and approval. The PC/BZA is the final authority on variances. Once PC/BZA approves a variance application, an applicant, property owner, or developer, the project is ready to begin. If the PC/BZA denies a variance application, and the applicant wishes to appeal, they must file   a protest in Sedgwick County district court within 30 days.

A.    Not all applications, items, or requests are eligible for a variance. The K.S.A. is very clear that variable items must not endanger the health/safety/public welfare and must be unique to the lot/property. They must not be created by an action or actions of the property owner or the applicant.

B.    By Statute/law, the PC/BZA cannot grant a variance that is in direct conflict with the zoning regulations for the specific zoning district. I.E.: GP Zoning regulations do not allow for fences in front yards; therefore, this item is not eligible to apply for a variance. If for some reason the application is heard by the PC/BZA, they cannot, by law, grant the variance.

C.    Statute requires a 20-day public notice prior to the hearing. Notice must be published in the paper of record prior to the 20-day deadline. Letters must be sent by City staff to the required property owners (see below) at the same time the notice is published in the paper. Letters must be sent to the property owners; if a home is a rental, the letter must still be sent to the property owner; it is their responsibility to inform any tenants of the property of the public hearing, at their discretion.

D.    The applicant is responsible for contacting a title company to acquire and pay for a certified ownership list of property owners within 200’ of the property boundaries if within the City limit and 1,000’, anywhere the property boundaries are adjacent to the County.

E.    The certified ownership list can be emailed directly from the title company to City staff, who will prepare notification letters for the public hearing. City of Garden Plain encourages applicants to request the title list when they apply rather than waiting, as sometimes there is a two (2) to three (3) week lead-time for the title company to prepare the list    depending on how busy the title company is.

F.    Alternatively, with written permission of the property owner, the City may request the certified ownership list directly from the title company and bill the property owner for the cost. This charge is in addition to the regular application fee. The application fee helps offset the costs of publication, postage, certified mailings (if required), and staff time to process and prepare all reports and documents.

G.    It is the option of the city official and/or the requirement of the City’s zoning code if the letters are posted regular mail or if they are sent certified mail.

H.    The application should include a site plan. It can be professionally created or done by the applicant by hand or by computer drawing. It does not need to be to scale but does need  to include the requested variance item(s), location of existing buildings, structures, fences; setbacks; anything that might be applicable to their request or helpful for the PC/BZA to understand and the need for the variance.

I.     Any application submitted past the deadline for publication of the notice of hearing will be placed on the next available meeting agenda that meets the statutory public notice deadline.

J.     The BZA may authorize, in specific cases, a variance from the specific terms of this Zoning Ordinance which will not be contrary to the public interest and where, because of special conditions, a literal enforcement of the provisions of the Zoning Ordinance will, in an individual case, result in unnecessary hardship, providing that the spirit of the Zoning Ordinance is observed, public safety and welfare are secured, and substantial justice is done. Such variance shall not permit any use not permitted by this Zoning Ordinance.

The following requirements must be met before the BZA may grant a variance:

i.     The applicant must show that their property was acquired in good faith.

ii.    The request for a variance must arise from a condition which is unique to the property in question, is not ordinarily found in the same zone or district and is not created by an action or actions of the property owner or applicant.

iii.   The granting of a variance shall not adversely affect the rights of adjacent property owners or residents.

iv.   The strict application of this Zoning Ordinance will cause unnecessary hardship upon the property owner represented in the application.

v.    The granting of a variance shall not adversely affect the public health, safety, morals, order, convenience, prosperity, or general welfare.

vi.   The granting of a variance will not violate the spirit and intent of this Zoning Ordinance.

K.    Variances from yard regulations may not be more than one-half (1/2) the required yard and shall not encroach upon the required setback for adjacent buildings.

i.     In exercising the above powers, the BZA may reverse or affirm wholly or partly or may modify, the order, requirement, decision, or determination appealed from the City Zoning Administrator and/or Building Inspector. The BZA may make such order, requirement, decision, or determination as ought to be made and to that end shall have the same powers as the City Zoning Administrator and/or Building Inspector from whom the appeal is taken. If the BZA approves the variance, they shall notify the City Zoning Administrator and/or Building Inspector of their decision and shall instruct them to issue a permit. A time limit may be specified as a condition for granting the appeal.

ii.    Every variation granted or denied by the BZA shall be accompanied by the written finding of fact, based on testimony and evidence, and specifying the reason(s) for granting or denying the variance, a copy of which shall be filed in the office of the City Clerk to be available for public inspection.

A.    Exceptions to this Zoning Ordinance, where authorized by these regulations, shall be made by Special Use Permit after the request has been duly advertised and a public hearing held as required by law. All special use permits shall be subject to the following requirements.

B.    Prior to review of the request of an exception by the BZA, the applicant shall:

i.     File an application on forms provided by the City.

ii.    File with the application a statement certifying that the applicant is the lawful owner of the real estate upon which the excepted use is proposed or that he has the lawful right to receive a conveyance thereof if the application is granted.

iii.   File a form of declaration of restrictions indicating use which is to be made by the legal owner if the application is granted. Said restrictions must show that use of the land will be solely that which was applied for as an excepted use. The restriction must provide that, if such use is abandoned or is proposed to be changed, the subsequent use shall be in conformity with the zoning restrictions in effect as to the land prior to authorization of the exception, unless a new application for an excepted use is made and granted.

C.    A site plan shall be filed with the application showing:

i.     Legal dimension of the tract to be used.

ii.    Location of all proposed improvements including curb-cut access, off-street parking, and other such facilities as the applicant proposes to install.

iii.   Grade elevations.

iv.   Building setback from all property lines.

v.    Front, side, and rear elevations of all improvements to be erected.

vi.   Perspective drawings of the proposed improvements, in such detail as will clearly show the finished appearance of the improvements proposed.

vii.  Location and type of planting, screening, or walls.

viii. Such other items as the BZA shall deem necessary to process the application properly.

D.    In considering any application for a Special Use Permit (SUP) hereunder, the BZA shall give consideration to the Comprehensive Plan, and the health, safety, morals, comfort, and general welfare of the public, including, but not limited to, the following factors:

i.     The stability and integrity of the various zoning districts.

ii.    Conservation of property values.

iii.   Protection against fire and casualties.

iv.   Observation of general police regulations.

v.    Prevention of traffic congestion.

vi.   Promotion of traffic safety and the orderly parking of motor vehicles.

vii.  Promotion of the safety of individuals and property.

viii. Provision for adequate light and air.

ix.   Prevention of overcrowding and excessive intensity of land uses.

x.    Provision for public utilities and schools.

xi.   Invasion by inappropriate uses.

xii.  Value, type, and character of existing or authorized improvements and land uses.

xiii. Encouragement of improvements and land uses in keeping with overall planning.

xiv. Provision for orderly and proper urban renewal, development, and growth.

A.    In making any decision varying or modifying any provisions of this Zoning Ordinance or in granting an exception to the district regulations, the BZA shall impose such restrictions, terms, time limitations, landscaping, improvement of off-street parking lots, and other appropriate safeguards as required to protect adjoining property.

B.    In lieu of actual construction of an approved off-street parking lot, the BZA may accept, in the name of the City, a corporate surety bond, cashier's check, escrow account, or other like security in an amount to be fixed by the City and conditioned upon actual completion of such improvement within a specified time, and the Governing Body may enforce such bond by all equitable means. Bonds or other security shall be filed with the City Clerk.