4-8-6. District court review of board of adjustment decision.

(1) Any person adversely affected by any decision of a board of adjustment may petition the district court for a review of the decision.

(2) In the petition, the plaintiff may only allege that the board of adjustment's decision was arbitrary, capricious, or illegal.

(3) The petition is barred unless it is filed within 30 days after the board of adjustment's decision is final.

(4) The board of adjustment shall transmit to the reviewing court the record of its proceedings including its minutes, findings, orders and, if available, a true and correct transcript of its proceedings. If the proceeding was tape recorded, a transcript of that tape recording is a true and correct transcript for purposes of this subsection.

(5) If there is a record, the district court's review is limited to the record provided by the board of adjustment. The court may not accept or consider any evidence outside the board of adjustment's record unless that evidence was offered to the board of adjustment and the court determines that it was improperly excluded by the board of adjustment.

(6) If there is no record, the court may call witnesses and take evidence.

(7) The court shall affirm the decision of the board of adjustment if the decision is supported by substantial evidence in the record.

(8) The filing of a petition does not stay the decision of the board of adjustment. Before filing the petition, the aggrieved party may petition the board of adjustment to stay its decision. Upon receipt of a petition to stay, the board of adjustment may order its decision stayed pending district court review if the board of adjustment finds it to be in the best interest of the county. After the petition is filed, the petitioner may seek an injunction staying the board of adjustment's decision. (Ord 96-8, 5/17/96)