University of Missouri Extension

DM7614, Reviewed October 1993

Basic Procedures in Administration of Zoning Regulations: Roles of Enforcement Officer and Board of Adjustment

James Cook and George Nickolaus
Department of Community Development

Role of Enforcement Officer

General

The Zoning Enforcement Officer, who often has the title of Building Inspector, is the key person in the enforcement of the zoning regulations. If he or she does not thoroughly understand and carry out his or her duties, most of the effectiveness of zoning will be lost.

The Zoning Enforcement Officer should read and become familiar with the zoning provisions. The officer should keep track of all amendments enacted by the legislative body, taking care to note them on his or her copy of the regulations, including, when necessary, the zoning district map. The officer should attend the meetings of the Board of Adjustment in order to understand the actions of the Board.

It is desirable that the Zoning Enforcement Officer prepare and keep up to date three maps:

With the assistance of the appropriate legal officer (e.g. prosecuting attorney, city attorney), the Zoning Enforcement Officer should prepare the following forms:

Duties

The Zoning Enforcement Officer (Building Inspector) has the following duties in connection with the Zoning regulations:

On receiving an application for a building permit, the officer (inspector) should:

In deciding whether or not the proposed construction complies with the zoning regulations, the officer (inspector) must follow those regulations exactly. The officer may not issue a permit for something that is not authorized, nor may he or she deny a permit for something that is authorized. "In the issuing of building permits the building inspector, a purely administrative agent, must follow the literal provisions of the zoning regulations."

Once he or she has issued a permit, the officer (inspector) may revoke the permit:

If the officer (inspector) refuses to issue the permit or revokes a permit, he or she should furnish the applicant with the appropriate form on which to give notice of appeal to the Board of Adjustment.

Files of information may be organized under headings of this kind. Noting the various actions on maps is helpful for making good use of information.

Accurate recording of the dates of all actions is important. The sequence of actions often is critical to understanding the situation.

Reliable, convenient records are necessary for fair and smoothly operating zoning administration. The Zoning Enforcement Officer (Building Inspector) should give considerable attention to setting up a system of records. He or she should consult with other officials as to their needs for information and get their advice on record maintenance. Coordination among several officials and bodies will be needed to establish and maintain an effective record system. The Zoning Enforcement Officer has to devote considerable time to recording once the system is established. He or she should expect that experience using the records will indicate a need to revise the system from time to time.

Role of Zoning Board of Adjustment

General

The Board of (Zoning) Adjustment is a quasi-judicial administrative body whose decisions affect private property rights to the same extent as court decisions. For that reason, the Board's procedures must be regular and properly judicial, and its decisions should accord with the recognized body of law in its field.

The Board of Adjustment is not a legislative body. It must enforce the meaning and the spirit of the zoning regulations as enacted by the legislative body. Where particular provisions of the regulations seem to lead to consistent injustices, the Board should recommend to the legislative body that they be amended. It should not attempt a "back-door" amendment by a series of its own decisions.

The Board should remember that it is the only representative, in most cases, of the public interest. It is not merely adjudicating the rights of two contending parties. In all of its decisions it should keep foremost in its mind the question of, "What will be best for the community?"

Rules of procedure

One of the first steps that the Board of Adjustment should take after its creation is adoption of rules of procedure for itself. At least the following provisions should be considered.

In order for the Board's actions to have validity, it must comply with the formal requirements set forth in its rules — particularly the provisions outlined above.

Powers and duties

The Board of Adjustment has three main powers and duties:

In addition, the Board should give constant consideration to the need for zoning amendments and, where such need appears, it should make recommendations to that effect to the legislative body or Planning Commission.

Interpretation
The Board's power of interpretation consists merely of

The point to remember in exercising this power is that the Board must apply, not vary, the terms of the regulations. Any variation must come as a variance (discussed below) and must meet the requirements for a variance. The Board's interpretation of the meaning of the regulations should remain uniform; the application to different fact situations, however, may lead to different decisions.

Exceptions
In certain situations, the regulation authorizes the Board to permit a given type of property use when it finds that particular conditions are met. When the Board does this, it is granting an "exception." The Board must exercise this authority just as it exercises its power of interpretation: It must follow the language of the provisions exactly and be sure that all the conditions specified have been met.

Variances
The best known power of the Board is the authority to grant "variances" from the literal terms of the regulations in hardship cases. The first rule for the Board to remember in exercising this function is that it must not be too liberal with its grants, for otherwise the whole zoning law may be subverted.

To grant a variance, the Board should make certain findings (which must, of course, be supported by the facts). A summary of the findings that should be required before a grant of a "variance" is issued follows:

In order to support this finding, the property owner must prove:

Condition on exceptions and variances
In granting an exception or variance, the Board is entitled to impose conditions on the permit that will make the proposed property use less objectionable to its neighbors and to the community. The conditions must be "reasonable."

 

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