(a)

The community development director is authorized by this chapter to consider an appeal for an administrative variance to reduce any particular numeric criteria, standard, or requirement by up to and including 30 percent, except that no administrative variance may be granted to reduce a lot below the applicable minimum lot size. In rendering his or her decision, the director shall consider preexisting topographic, geological, hydrological, lot layout, or environmental factors.

(b)

To initiate an application for an administrative variance, an application must be submitted to the department of planning and development which shall include the following:

(1)

An application form supplied by the department of planning and development must be completed by the applicant.

(2)

A fee set forth on the city's fee schedule.

(3)

A written narrative explaining and justifying the request.

(4)

A drawing using a correct plat of the property drawn to scale showing all property lines with dimensions, location of buildings and other structures, north arrow, street numbers, lot and/or parcel number from the county tax sheet, locations of setback lines or other dimensional requirements from which the administrative variance is sought.

(5)

Notarized signatures of the property owner, or his or her authorized representative, and the applicant.

(c)

The community development director shall review the application for completeness within ten calendar days of submission. Incomplete or improper applications will be returned to the applicant.

(d)

In rendering a decision on an administrative variance application, the community development director shall consider all information supplied by the applicant. Within ten calendar days of receipt of a completed application for an administrative variance, the community development director shall approve the application as submitted, approve the application with conditions, or deny the application. If the community development director fails to issue a decision within ten days, the application shall be deemed automatically denied, and the applicant shall have a right of appeal to the unified zoning board pursuant to the provisions of this section.

(e)

Such administrative variance may be granted in an individual case upon a finding by the community development director that one or more of the following exists:

(1)

There are extraordinary and exceptional conditions pertaining to the particular piece of property in question because of its size, shape, or topography;

(2)

The application of these regulations to this particular piece of property would create a practical difficulty or unnecessary hardship;

(3)

Such conditions are peculiar to the particular piece of property involved;

(4)

Relief, if granted, would not cause substantial detriment to the public good or impair the purposes and intent of these regulations, provided, however, that no variance may be granted for a use of land or building or structure that is prohibited by this chapter;

(5)

A literal interpretation of this chapter would deprive the applicant of any rights that others in the same district are allowed.

(f)

An administrative variance shall be granted or denied in writing. Notice of the grant of an administrative variance shall be sent to all adjoining property owners, either by certificate of mailing or certified mail, by community development department staff. The notice shall describe the variance granted and state that interested parties have 30 days in which to file an appeal of the variance to the unified zoning board. Only owners reflected on the records of the tax assessors as of the date of the application shall be entitled to notice. The 30 days shall be counted from the date of mailing of the notice. The community development director shall keep public records of all administrative variances applied for and granted pursuant to this chapter.

(Min. of 11-10-2016, § 14.1; Ord. No. 2019-0002, § 7, 3-14-2019; Ord. No. 2021-0004, § 1D, 7-15-2021)

(a)

The unified zoning board is hereby established. It is a combination of the existing board of appeals and planning commission, such that it originally had 11 members. As the service of sitting members of the unified zoning board ends, either through resignation, vacancy, end-of-term without reappointment, or otherwise, the number of the members on the unified zoning board shall be reduced to seven, which thereafter shall be the number of seats on the unified zoning board. The unified zoning board shall be authorized to perform all duties and actions and hear all matters that either the board of appeals or the planning commission were authorized to consider prior to the adoption of this article. References in this section or other sections of this Code to the board of appeals or planning commission shall be deemed a reference to the unified zoning board.

(b)

Members shall serve without pay but may be reimbursed for any expenses incurred while representing the board. In order to be qualified to serve, members must be residents of the city, own property in the city, or operate a business with an office in the city. Any vacancy in the membership of the unified zoning board shall be filled for the unexpired term in the same manner as the initial appointment. Members shall be removable for cause by the city council upon written charges and after public hearing. The failure of a member of the unified zoning board to attend three consecutive public meetings shall be deemed an abandonment of office effective immediately upon the conclusion of the third consecutive meeting, and the vacancy may be filled by the city council. Absences may be excused by a majority vote of the remainder of the unified zoning board for good cause shown.

(Min. of 11-10-2016, § 14.2; Ord. No. 2018-0001, § 3, 4-12-2018; Ord. No. 2022-0007, § 2, 11-10-2022)

(a)

The unified zoning board shall elect a chairperson and a vice chairperson from its members who shall serve for three years or until re-elected or until their successors are elected. The board shall appoint a secretary, who may be a city officer, an employee of the city, or a member of the board. The board shall adopt such rules and bylaws as they deem appropriate. The board shall meet every other month or on such schedule as it chooses to adopt, but no less than four times per year, providing there are matters to consider. If there are no agenda items, the regularly scheduled meeting shall be cancelled.

(b)

Meetings of the unified zoning board shall be held at the call of the chairperson and at such other times as the board may determine. The chairperson, or in his absence the vice chairperson, may administer oaths to witnesses.

(c)

The unified zoning board shall keep minutes of its proceedings, showing the vote of each member upon each question, or if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the board and may be a public record.

(d)

All meetings of the unified zoning board shall be open to the public, except where a meeting is closed in compliance with the state Open Meetings Act.

(Min. of 11-10-2016, § 14.3)

The unified zoning board shall have the following powers and duties:

(1)

Appeals. To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by the community development director in the enforcement of this chapter. Appeals to the unified zoning board may be taken by any person aggrieved or by any officer, department, board, or bureau of the city affected by any decision of the community development director. Such appeal shall be taken within 30 days of said decision by filing with the community development director a written notice of appeal specifying the grounds thereof. Decisions on appeals shall be issued in writing within ten days of the appeal.

(2)

Variances. The unified zoning board has the power to hear requests for variances from the provisions of this chapter. Variances may be granted only if the board finds all of the following to exist:

a.

That one of the following is true, through no action or fault of the property owner or predecessor:

1.

The property is exceptionally narrow, shallow or unusually shaped;

2.

The property contains exceptional topographic conditions;

3.

The property contains other extraordinary or exceptional conditions;

4.

There are existing other extraordinary or exceptional circumstances; and

b.

That the strict application of the requirements of this chapter would result in practical difficulties to, or undue hardship upon, the owner of this property; and

c.

That the requested variance relief may be granted without substantially impairing the intent and purpose of this chapter.

Variance decisions shall be issued in writing within ten days of the hearing.

(3)

Conditions. In granting a variance, the unified zoning board may attach such conditions regarding the location, character and other features of the proposed building, structure or use as it may deem advisable so that the purpose of this chapter will be served, public safety and welfare secured and substantial justice done.

(4)

Limitations on variances; improper variance requests. Variances cannot be given to totally remove a requirement or to exempt a property or applicant entirely from a requirement. If a variance is being sought that is, in the judgment of the community development director, a request that would constitute a text amendment, then the application shall not be accepted. For example, a request to be exempted from the Etowah Valley Historic District requirements would not be the subject of a variance. The applicant shall instead be directed to file for a text amendment. Variances can only be given to alter a numeric value, such as a setback, height limit, area limit, and so forth. Furthermore, the unified zoning board shall not be authorized to grant a density variance or a use variance to permit a use in a district in which the use is prohibited. A variance application shall not be accepted if the variance seeks something that cannot be varied. A variance application shall not be accepted if the variance is contradictory to this chapter (such as reducing a requirement to zero or totally eliminating a requirement).

(5)

Self-inflicted hardship. The board shall not grant variances when the hardship was created by the property owner or his predecessor, and shall not grant hardship variances based on shape or topography for lots of record not existing prior to the adoption of the ordinance from which this chapter is derived or amendment thereto. Configuring a subdivision to create lots that are difficult to build is an example of a hardship created by the property owner or predecessor that do not justify a variance.

(6)

Place of worship. In compliance with federal law, if the variance is requested by a place of worship or church, in connection with the exercise of religion, the board shall additionally consider whether the regulation imposes a substantial burden on the exercise of religion, whether the regulation serves a compelling governmental interest, whether the denial is the least restrictive means to serve that interest, or whether the variance can be granted without harming that interest.

(7)

Reasonable accommodation variance. Notwithstanding any other ordinance provisions to the contrary, the unified zoning board shall consider and grant reasonable accommodations necessary to afford persons with disabilities equal housing opportunities. In determining whether a particular accommodation is reasonable and necessary, the unified zoning board shall consider whether:

a.

The accommodation is necessary, because of a disability, to allow the applicant an equal opportunity to use and enjoy the dwelling of his choice;

b.

The request imposes an undue burden or expense on the city; and

c.

The proposed accommodation would create a fundamental alteration in the zoning scheme.

An application for a reasonable accommodation variance shall comply with all other procedural requirements for consideration and approval of variances under this chapter.

(Min. of 11-10-2016, § 14.4)

(a)

Applications. Applications for appeals or variances must be filed in accordance with the schedule set out by the community development director. The contents of the application shall be determined by the community development director. A site plan prepared and signed by a state licensed surveyor or engineer shall be submitted with all variance applications unless the community development director determines that such a site plan will not meaningfully assist the unified zoning board's consideration of the application. The community development director shall forthwith transmit to the board all documents constituting the record upon which the action appealed from was taken. Variances may be sought by filing an application on forms provided by the community development director. The owner of the property that is the subject of the application shall be mailed notice of the public hearing at least 30 [days] prior to the date of the hearing.

(b)

Published notice. Due notice of the public hearings pursuant to this article shall be published in the newspaper of general circulation within the city. Notice advertising the hearing on the appeal or variance and indicating date, time, place and purpose of the public hearing shall be published at least 30 days but not more than 45 days prior to the date of the hearing. The cost of the advertisement shall be borne by the applicant. The community development director shall post, at least 30 days prior to the unified zoning board's public hearing, in a conspicuous place in the public right-of-way fronting the property or on the property for which an application has been submitted, a sign or signs containing information as to the application number, date, time and place of the public hearing.

(c)

Letters to adjacent property owners. The community development director shall also give notice of the appeal or variance and the public hearing thereon to the owner of record of properties adjoining the property for which said appeal or variance is made or sought. Said notice shall be given to each adjoining property owner by first class mail, with proof of mailing obtained from the post office. Proof of mailing means either a first-class certificate of mailing or a first class certified mail receipt; a proof of delivery is not required. Only owners reflected on the records of the tax assessors as of the date of the application shall be entitled to mailed notice. In determining the adjoining property owners, road, street or railroad rights-of-way shall be disregarded. Said notice must be mailed at least 15 days prior to the date of said scheduled public hearing.

(d)

Information in notice. The notice required herein to be published and to be served upon adjacent property owners shall contain the following information:

(1)

Name and address of the applicant;

(2)

Address and location of the property for which the appeal or variance is sought;

(3)

Current zoning of the property for which the appeal or variance is sought;

(4)

The variance requested or the subject matter of the appeal and the reason for the requested variance or the appeal; and

(5)

The date, time and place of the public hearing on said requested appeal or variance.

(e)

Recording hearing. The applicant may arrange for and provide a certified court reporter to transcribe the hearing before the unified zoning board, at the expense of the applicant. Upon appeal of the decision of the unified zoning board, said transcript shall be made part of the record for review. Board hearings shall also be recorded by video or audio tape.

(Min. of 11-10-2016, § 14.5; Ord. No. 2019-0009, § 1, 11-14-2019; Ord. No. 2020-0001, § 2, 3-12-2020; Ord. No. 2022-0006, § I, 10-20-2022)

An appeal stays all legal proceedings in furtherance of the action appealed from, unless the community development director certifies to the unified zoning board after the notice of appeal shall have been filed with him, that by reason of facts stated in the certificate, a stay would in his opinion cause imminent peril to life and property. In such case, proceedings shall not be stayed otherwise than by a stay granted by the unified zoning board or by a restraining order issued by a court of record on application, on notice to the community development director, and for due cause shown.

(Min. of 11-10-2016, § 14.6)

(a)

In exercising its powers, the unified zoning board may, in conformity with the provisions of this article, reverse or affirm, wholly or partly, or may modify the order, requirements, decision, or determination, and to that end shall have all the powers of the community development director.

(b)

The concurring vote of a majority of the members present of the board shall be necessary to reverse any order, requirement, decision or determination of the community development director, or to decide in favor of the applicant on any matter upon which it is required to pass under this article or to affect any variation of this article.

(c)

On all appeals, applications and other matters brought before the unified zoning board, said board shall inform, in writing, all the parties involved of its decisions and the reasons therefore. Such written decision shall be prepared by the zoning staff or city attorney and be signed by the secretary.

(Min. of 11-10-2016, § 14.7)

(a)

Sign up. All persons who wish to address the unified zoning board at a hearing concerning an appeal or variance under consideration by the unified zoning board shall first sign up on a form to be provided by the city prior to the commencement of the hearing.

(b)

Matter presented; out of order applications. The secretary of the unified zoning board will read the proposed appeal or variance under consideration in the order determined by the community development director. The community development director, or his designee, shall then present the basis of the appeal or variance, along with the pertinent departmental reviews, if any, prior to receiving public input on the proposed appeal or variance. Any appeal or variance that has not complied with all notice and other requirements of this article may be deemed out of order and be postponed until the next meeting, and if it is still out of order at the next meeting, the application may be dismissed without prejudice.

(c)

Speakers. The chairperson of the unified zoning board shall call each person who has signed up to speak on the appeal or variance then before the unified zoning board in the order in which the persons have signed up to speak, except the applicant who will always speak first. Prior to speaking, the speaker will identify himself and state his current address. Only those persons who signed up to speak prior to the commencement of the hearing shall be entitled to speak, unless a majority of the members of the unified zoning board present at the hearing allow the person to speak to the appeal or variance, notwithstanding the failure of the person to sign up prior to the hearing.

(d)

Time limits. The applicant or appellant and those in favor of the variance or appeal shall have at least ten minutes to speak, total. Those opposed to the application or appeal shall have at least ten minutes to speak, total. The board may extend these times upon majority vote. Each individual speaker shall have no more than three minutes to speak, except the applicant, who can take as much of the ten minutes as is desired. The applicant may reserve time for rebuttal. Upon vote of a majority of the board, either side may be granted additional time in any amount the board desires, but in such event, the other side shall be granted the same additional time.

(e)

Evidence, cross examination. Each side shall have the opportunity to present evidence and witnesses which shall be entered into the record. Cross examination of opposing witnesses shall be allowed by the chair, but decorum shall be maintained. The board may require the applicant and opponents to designate one person to conduct any desired cross examination.

(f)

Decorum and order. Each speaker shall speak only to the merits of the proposed appeal or variance under consideration and shall address his remarks only to the members of the unified zoning board. Each speaker shall refrain from personal attacks on any other speaker or the discussion of facts or opinions irrelevant to the proposed appeal under consideration. The chair may limit or refuse a speaker the right to continue if the speaker, after first being cautioned, continues to violate this subsection. Nothing contained herein shall be construed as prohibiting the chair from conducting the hearing in an orderly and decorous manner to ensure that the public hearing on the appeal or variance is conducted in a fair and orderly manner.

(Min. of 11-10-2016, § 14.8; Ord. No. 2018-0001, § 3, 4-12-2018; Ord. No. 2022-0006, § II, 10-20-2022)

(a)

Appeal to city council. Recourse from a decision by the unified zoning board shall be to the city council, by filing a written notice of appeal within 30 days of the board's decision. The city council shall have a hearing on said appeal within 60 days of completion of preparation of the record and transcript. The city council's hearing shall be noticed according to the requirements of section 47-331, including published notice, sign, and letters to subject property owner and adjacent property owners. The hearing shall be open to the public, but public comment shall not be taken unless the city council votes to reopen the public hearing. At the hearing, the city council shall review the evidence presented below, which shall automatically include this chapter, the official zoning map, the city's file on the application, and any other city ordinance relevant to the dispute. No new evidence not presented to the unified zoning board may be presented on an appeal to the city council; only argument of counsel (or unrepresented parties) is permitted unless the city council votes to reopen the public hearing, which shall then be conducted in accordance with section 47-334.

(b)

Appeal to court. Recourse from a decision of the city council shall be to a court of competent jurisdiction by the filing of an appeal in accordance with law.

(Min. of 11-10-2016, § 14.9; Ord. No. 2022-0006, § III, 10-20-2022)