Changes to Existing Law

Conditional use of real property--Ordinance--Content--Approval or disapproval of request. A county zoning ordinance adopted pursuant to under this chapter that authorizes a conditional use of real property shall specify the approving authority, each category of conditional use requiring such approval, the zoning districts in which a conditional use is available, the criteria for evaluating each conditional use, and any procedures for certifying 25 Catchlines are not law. (§ 2-16-13.1) approval of certain conditional uses. The approving authority shall consider the stated criteria, the objectives of the comprehensive plan, and the purpose of the zoning ordinance and its the relevant zoning districts when making a decision to approve or disapprove a conditional use request. Approval of a conditional use request requires the affirmative majority vote of the members of the approving authority who are present and voting.

Conditional uses--Special permitted uses. A zoning ordinance adopted pursuant to under this chapter that provides for conditional uses of real property may also establish a process for certification of certain conditional uses upon meeting specified criteria for that conditional use. A conditional use certified as a special permitted use under the zoning ordinance shall be approved if the applicant demonstrates that all specified criteria are met. The certification process may include adoption of a simple majority affirmative vote requirement pursuant to subdivision 11-2-53(3) for approval or confirmation that the specified criteria are met.

Board of adjustment--Powers. The board of adjustment may: (1) Hear and decide appeals if it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this chapter or of any ordinance adopted pursuant to this chapter; (2) Authorize upon appeal in specific cases such a variance from the terms of the ordinance as will that is not be contrary to the public interest, if, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship and so that the spirit of the ordinance is observed and substantial justice done; and (3) Hear and determine conditional uses as authorized by the zoning ordinance. The uses shall be determined by an affirmative majority vote of the present and voting members of the board of adjustment at a percentage specifically set forth in the zoning ordinance.

Appeals--Notice--Records transmitted--Expedited process. An appeal to the board of adjustment may be taken by any person aggrieved or by any officer, department, board, or bureau of the county adversely affected by any decision of the administrative officer, that is not a ministerial act or other preliminary act to bring an application or matter before the board for hearing and a final decision. The appeal shall be taken within a reasonable time not to exceed fourteen days, as provided by the rules of the board of adjustment, by filing with the officer from whom the appeal is taken and with the board of adjustment a notice of appeal specifying the grounds of the appeal. The officer from whom the appeal is taken shall transmit to the board of adjustment all the papers constituting the record upon which the action appealed from was taken. All appeals 32 Catchlines are not law. (§ 2-16-13.1) relating to a particular action or property shall be consolidated and heard on an expedited basis.

Public hearing of appeal--Notice. The board of adjustment shall hold at least one public hearing of the appeal. Notice of the time and place shall be given at least ten days in advance by publication in a legal newspaper of the county, and due notice shall be given to the parties in interest. The board of adjustment shall decide the appeal within a reasonable time sixty days of receiving a notice of appeal. Any party may appear at the hearing in person or by agent or by attorney.

Two-thirds majority required. The concurring vote of two-thirds of the members of the board of adjustment is necessary to reverse any order, requirement, decision, or determination of any such administrative official or commission on appeal, or to decide in favor of the applicant on any matter upon which it is required to pass under any such ordinance, except as to conditional uses where the county has chosen to adopt a different standard, as set forth in subdivision 11-2-53(3), or to effect any variation in the ordinance. An initial conditional use determination of the board of adjustment shall be determined by the vote set forth in § 11-2-17.3.

County commissioners as board of adjustment--Powers and duties- -Chair--Two-thirds majority required. In lieu of appointing the board of adjustment provided by § 11-2-49, the board of county commissioners having adopted and in effect a zoning ordinance may act as and perform all the duties and exercise the powers of the board of adjustment. The When acting as the board of adjustment, the chair of the board of county commissioners is chair of the board of adjustment as so composed. The concurring vote of at least two-thirds of the members of the board as so composed is necessary to reverse any order, requirement, decision, or determination of any administrative official or commission on appeal, or to decide in favor of the appellant on any matter upon which it is required to pass under any 31 Catchlines are not law. (§ 2-16-13.1) zoning ordinance, except as to conditional uses where the county has chosen to adopt a different standard as set forth in subdivision 11-2-53(3), or to effect any variation in the ordinance. Any initial conditional use determinations of the board shall be determined by the vote set forth in § 11-2-17.3.

Petition to court contesting decision of board--Requirements. Any person or persons, jointly or severally, or any taxpayer, or any officer, department, board, or bureau of the county, aggrieved by any decision of the board of adjustment may present to a court of record a petition duly verified, setting forth that the decision is illegal, in whole or in part, specifying the grounds of the illegality. The petition shall be a petition for writ of certiorari presented to the court within thirty days after the filing of the decision in the office of the board of adjustment. The board of adjustment shall respond to the petition within thirty days of receiving the notice of the filing and shall simultaneously submit the complete record of proceedings of the board appealed from, in the form of a return on a petition for writ, without need for a court order or formal issuance of writ. A petition presented to the circuit court under this section shall be accompanied by a bond in the amount of two hundred fifty dollars with one or more sureties to be approved by the county auditor conditioned that the appellant shall prosecute the appeal without delay and pay all costs that the appellant may be adjudged to pay in the circuit court. The bond shall be executed to the county and may be sued in the name of the county upon breach of any condition in the bond.

29 Catchlines are not law. (§ 2-16-13.1) 11-2-65. Court may reverse or affirm decision of board--Costs. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review. On motion, the court may award reasonable attorneys' fees, costs of the action, and compensatory damages suffered in an action brought to the court under this chapter against any nonprevailing party relative to the petition for writ of certiorari. Costs, damages, and attorneys' fees are not allowed against the board of adjustment unless the court determines that the board of adjustment acted with gross negligence, or in bad faith, or with malice in making the decision appealed from.