(a)

Purpose and intent. The purpose of a zoning ordinance is to have orderly use of property. Nonconforming uses that existed legally prior to the adoption or change of a zoning ordinance create land uses that do not conform to the zoning ordinance. It is the purpose of this nonconforming use provision to allow legally existing nonconforming uses to be retained with certain limitations to protect adjacent property owners and the public from the inconsistencies created by nonconforming uses. It is the intent that, over time, all nonconforming uses will be eliminated.

(b)

Continuance of nonconforming uses. A nonconforming use of a building, structure or land that was legal prior to the enactment of an amendment or adoption of the zoning ordinance shall be allowed to legally continue even though such use does not conform with the provisions of this chapter, subject to the following:

(1)

The nonconforming use cannot be expanded to occupy a greater area of land or building area.

(2)

The nonconforming use may continue only in the original building structure or land area that was originally occupied by the nonconforming use.

(3)

The nonconforming use of the building, structure or land cannot be intensified or escalated, for example, by increasing the number of deliveries, employees or customers coming to the nonconforming use, or noise, dust, fumes or other pollutants emanating from the nonconforming use.

(4)

A nonconforming use cannot be reinstated after it has been abandoned. It shall be prima facia evidence of abandonment for the owner or operator of the nonconforming use to discontinue the nonconforming use for six months, to fail to obtain a new or renew an existing business license as required under the Code of the city for the operation of such nonconforming use, to fail to declare and remit the sales tax required by state law for the nonconforming use.

(5)

Failure to follow any other state, federal or local administrative procedure or regulation that is required for the nonconforming use shall be prima facia evidence of abandonment.

(6)

A nonconforming use cannot be changed to another nonconforming use.

(7)

A nonconforming use must maintain any screening or buffering that existed prior to the use becoming a nonconforming use or that was later voluntarily added.

(8)

A use that constitutes a nuisance as defined by state law is not and cannot become a nonconforming use.

(c)

Continuance of nonconforming structure or building. A building or structure that is nonconforming or that contains a nonconforming use at the time of enactment of the ordinance from which this chapter is derived or at the time of enactment of an amendment to this chapter may be retained, except that it shall not be:

(1)

Enlarged, altered or rebuilt, except for repairs necessary to maintain the structure or building in a safe and sanitary condition.

(2)

Rebuilt, altered or repaired after damage or deterioration exceeding 75 percent of its replacement cost at the time of destruction, except in conformity with this chapter.

(d)

Nothing in this section shall be construed to allow a use that is dangerous to the general public to continue to exist. This section shall also not be construed to not require changes to buildings or structures to comply with any fire code, life safety code or other safety ordinance or regulation.

(e)

To protect the public from inconsistent zoning requirements and to make nonconforming uses as consistent with conforming uses as possible, nonconforming uses must comply with zoning requirements such as parking, landscaping, setback, outside storage, screening or buffering requirements for the zoning district or use which does not substantially impact the nonconforming use or nonconforming structure.

(Code 1985, § 22-11)

For all developments fronting on a state highway, no building permit shall be issued until the approval of the state highway department has been obtained by the applicant on entrances and exits, curb radii, drainage and other matters that are the appropriate concern of the department.

(Code 1985, § 22-12)

(a)

Submission. An applicant for a variance shall file with or submit to the city, prior to processing of the application, the following:

(1)

A completed application shall be filed on forms prescribed by the city.

(2)

The signature of the applicant and record titleholder shall appear upon the application.

(3)

The application fee shall be paid. These fees shall be established from time to time by resolution of the mayor and council. A copy of the fee schedule shall be maintained for public inspection in the office of community affairs.

(4)

The applicant shall submit a current boundary survey and plot plan, to scale, prepared by a registered surveyor or registered engineer. Such plans shall also include such other information thereon as may be required by the zoning or planning division of the city, including preliminary plans for development, building locations, parking areas, access points, adjacent streets, land lot lines and buffer areas.

(5)

Private sewage disposal must be approved by the county health department, and written approval from the health department must be filed with the application.

(6)

The applicant shall submit a statement indicating that a variation from the terms of this article will not be contrary to public interest where, owing to special conditions, a literal enforcement of the provisions of the article will be an individual case, result in practical difficulty or unnecessary hardship, so that the spirit of the article shall be observed, public safety and welfare secured, and substantial justice done.

(b)

Nonconforming use. The existence of a nonconforming use of neighboring land, buildings, or structures in the same district, or of permitted or nonconforming uses in other districts shall not constitute a reason for the requested variance. A variance may be granted in an individual case of unnecessary hardship upon a finding by the board of variance and zoning appeals that the following conditions exist:

(1)

There are extraordinary and exceptional conditions pertaining to the particular piece of property in question because of its size, shape or topography that are not applicable to other lands or structures in the same district.

(2)

A literal interpretation of the provisions of this article would deprive the applicant of rights commonly enjoyed by other properties of the district in which the property is located.

(3)

Granting the variance requested will not confer upon the property of the applicant any special privileges that are denied to other properties of the district in which the applicant's property is located.

(4)

The requested variance will be in harmony with the purpose and intent of this article and will not be injurious to the neighborhood or the general welfare.

(5)

The special circumstances are not the result of the actions of the applicant.

(6)

The variance requested is the minimum variance that will make possible the legal use of the land, building or structure.

(7)

The variance is not a request to permit a use of land, buildings, or structures which are not permitted by right in the district involved.

(c)

Posting of public notice. The posting shall be the same as set forth in section 48-63(b) for zoning applications.

(d)

Reconsideration of rejected applications. Any variance request may not be reconsidered for a period of 12 months after it has been rejected by the board of variance and zoning appeals, unless by court order or pursuant to a settlement of litigation approved by the board of variance and zoning appeals.

(e)

Amendment or withdrawal of variance request. The mayor and council, in their sole discretion, may allow an amendment to a variance request or withdrawal of a variance request to amend this article, by the applicant or applicant's agent without prejudice to the applicant's ability to resubmit such variance request on the same property notwithstanding the 12-month resubmittal limitation required in this article, provided the variance request is withdrawn or amended on or before 5:00 p.m. on the Monday of the week preceding the council meeting at which it is to be considered by the mayor and council; however, no more than one withdrawal of a variance request pertaining to a particular parcel of land shall be permitted within a 12-month period. The mayor and council may also, on their own motion, amend or withdraw a variance request upon showing of cause of their actions, without prejudice.

(Code 1985, § 22-14)

If the city or any other lawfully constituted county, state or federal governmental authority, agency or body or utility having the authority of eminent domain condemns or acquires property, and, as the sole result of such condemnation or acquisition, nonconformity is created in setback lines, required lot size, density or parking regulations, the zoning division manager or his designee shall be authorized to grant such administrative variances as are necessary to bring the property into conformance upon receipt of a properly documented request. Any variance granted under this section may not exceed 25 percent of the existing requirements without application to the board of variance and zoning appeals, except for the overall density which allows the existing number of lots, units or floor area ratio (FAR) to remain as it exists at the time of condemnation or acquisition. The property must be legally conforming prior to such condemnation or acquisition in order to qualify for an administrative variance. The zoning division manager or his designee shall be required to maintain records which support the basis for granting such variance. Any variance granted under this section shall only apply to the current zoning district and use. This section shall only apply to property acquired or condemned by an authority exercising eminent domain after December 31, 1990.

(Code 1985, § 22-15)

(a)

The mayor and council may permit temporary land use permits for limited periods of time for uses, exceptions or professions in areas and districts where the zoning regulations would otherwise prohibit such operations. Customary home occupations do not require a temporary land use permit.

(b)

In addition thereto, mayor and council may grant temporary land use permits for limited periods of time for occupations or businesses compatible with the neighborhood from which such business or occupation is operated and where no nuisance as defined in state law or other significant adverse effect would result to the area or district zoned.

(c)

All applications for temporary land use permits shall be advertised in the same manner as applications for rezoning, and public hearings will be held thereon in the same manner as hearings on applications for rezoning are conducted.

(d)

The mayor and council have determined that temporary land use permits are only appropriate if granted for a limited period of time. In no event shall the mayor and council grant a land use permit for a period of time in excess of 24 months, except on reapplication, readvertisement and public hearing. Land use permits for exceptions to the city's minimum square footage per adult occupant and minimum square footage per vehicle parked at a dwelling unit or mobile home will be considered upon each renewal. All new applications, (other than those for exceptions to the city's minimum square footage per adult occupant and minimum square footage per vehicle parked at a dwelling unit or mobile home) that have been approved for a temporary land use permit after the adoption date of the ordinance from which this article is derived may only be considered for one renewal up to 24 months from the date the temporary land use permit was granted. Once the period of time for which the temporary land use permit was granted has expired, the use must cease or relocate. If the property where a land use permit has been granted is sold or otherwise conveyed, or the business for which the land use permit was granted is sold or otherwise conveyed, requiring a change in the business license, the approved land use permit shall no longer be valid. In order for the use to resume operation, a new land use permit must be applied for and approved by the mayor and council.

(e)

The applicant or operator must reside full-time at the residence where the temporary home occupation or temporary business is performed if the property is located in a platted subdivision.

(f)

The mayor and council shall consider, at a minimum, the following in its determination of whether or not to grant a temporary land use permit:

(1)

Safety, health, welfare and moral concerns involving the surrounding neighborhood;

(2)

Parking and traffic considerations;

(3)

Number of nonrelated employees;

(4)

Number of commercial and business deliveries;

(5)

The governing authority's general presumption that residential neighborhoods should not allow noncompatible business uses;

(6)

Compatibility of the business use to the neighborhood;

(7)

Hours of operation;

(8)

Existing business uses in the vicinity;

(9)

Effect on property values of surrounding property;

(10)

Circumstances surrounding neighborhood complaints;

(11)

Intensity of the proposed business use; and

(12)

Location of the use within the neighborhood.

(Code 1985, § 22-16)

(a)

A special land use permit shall be required for the following types of uses of property regardless of the zoning classification or district for the realty:

(1)

Radio, television, microwave, land mobile, telephone or other communication towers or antennas, including antennas or other communications equipment or facilities to be placed on a tower that was or will be constructed pursuant to the exemption set forth in section 48-3(2).

(2)

Communication equipment buildings.

(3)

Noncommercial or nonprofit public community centers such as a YWCA, YMCA, Girls Club or Boys Club.

(4)

Private, parochial or other elementary, middle, junior or high schools which are not a part of the public school system of the state, but which teach the subjects commonly taught in the common schools of the state.

(5)

Colleges or universities which are institutions for higher education and are nonprofit educational institutions not owned or controlled by the state or any political subdivision, agency, instrumentality, district or city thereof, which provide a program of education beyond the high school level and which admit as regular students only individuals having a certificate of graduation from a high school, or the recognized equivalent of such a certificate, and which provide an educational program for which a bachelor's degree is awarded, or provide an educational program, admission into which is conditioned upon the prior attainment of a bachelor's degree or its equivalent, for which a postgraduate degree is awarded, or provide not less than a two-year program which is acceptable for full credit toward a bachelor's degree or its equivalent.

(6)

Asphalt plants.

(7)

Concrete plants.

(8)

Adult entertainment establishments.

(9)

Boarding, breeding or raising nondomestic or wild animals.

(10)

Private landfills.

(11)

Composting facilities.

(12)

Waste transfer stations.

(13)

Trash/garbage handling, hauling or disposal facilities or any use associated with these uses.

(14)

Auto salvaging and wrecking yards.

(15)

Automobile storage yards and wrecker services for damaged or confiscated vehicles.

(16)

Used or preowned automobile and truck sales lots separate from a new car dealership. No application for a special land use permit shall be considered unless the property on which the special land use permit has been applied for consists of at least one acre of paved surface for parking of vehicles excluding any area used for, but not limited to, buildings, offices, service or sales areas, etc.

(17)

Truck stops/refueling stations.

(18)

Coliseums.

(19)

Stadiums.

(20)

Chipping, grinding or reduction of materials, stumps, trees, limbs, construction debris, glass, concrete, asphalt, rock, etc.

(21)

Used or discarded tire storage/disposal facilities.

(22)

Quarries or mining operations.

(23)

Scrap metal, iron or steel collection/recovery.

(24)

Any manufacturing or industrial use which also requires a permit from the environmental protection division of the department of natural resources of the state under the provisions of O.C.G.A. § 12-5-1 et seq., 12-8-1 et seq., or 12-9-1 et seq.

(25)

Sawmills.

(26)

Hotels (suite).

(27)

Trade shows/expositions.

(28)

Flea markets.

(29)

Churches, chapels, temples, synagogues, and other places of worship.

(30)

Mausoleums and other facilities for disposal of the deceased.

(31)

Amphitheaters.

(32)

Assembly halls.

(33)

Automobile, truck, and trailer lease and rental facilities.

(34)

Biomedical waste transfer and disposal facilities.

(35)

Building material storage.

(36)

Chemical plants or storage facilities.

(37)

Freight terminals.

(38)

Fuel and ice dealers.

(39)

Hazardous waste sites.

(40)

Outdoor commercial racing of motorized vehicles.

(41)

Parking for vehicles.

(42)

Pawnshops.

(43)

Petroleum or bulk storage stations.

(44)

Rail stations, railroad car classification yards, railroad stations for freight, or any other rail-type facilities.

(45)

Roominghouses and boardinghouses.

(46)

Tire retreading and recapping facilities.

(47)

Truck terminals.

(48)

Group homes.

(49)

Pain clinic.

(50)

Halfway house.

(b)

The mayor and council may grant special land use permits for the uses enumerated in subsection (a) of this section. The granting of a special land use permit is conditional upon the site plan considered by the department of community affairs.

(c)

All applications for special land use permits shall be advertised in the same manner as applications for rezoning, and public hearings will be held thereon in the same manner as applications for rezoning are conducted.

(d)

The mayor and council may grant special land use permits for any period of time in their discretion.

(e)

In addition to general district, the mayor and council shall consider, at a minimum, the following in its determination of whether or not to grant a special land use permit:

(1)

Whether or not there will be a significant adverse effect on the neighborhood or area in which the proposed use will be located.

(2)

Whether the use is otherwise compatible with the neighborhood.

(3)

Whether the use proposed will result in a nuisance as defined under state law.

(4)

Whether quiet enjoyment of surrounding property will be adversely affected.

(5)

Whether property values of surrounding property will be adversely affected.

(6)

Whether adequate provisions are made for parking and traffic considerations.

(7)

Whether the site or intensity of the use is appropriate.

(8)

Whether special or unique conditions overcome the mayor and council's general presumption that residential neighborhoods should not allow noncompatible business uses.

(9)

Whether adequate provisions are made regarding hours of operation.

(10)

Whether adequate controls and limits are placed on commercial and business deliveries.

(11)

Whether adequate landscape plans are incorporated to ensure appropriate transition.

(12)

Whether the public health, safety, welfare or moral concerns of the surrounding neighborhood will be adversely affected.

(13)

Whether the application complies with any applicable specific requirements set forth in this chapter for special land use permits for particular types of uses.

(14)

Whether the applicant has provided sufficient information to allow a full consideration of all relevant factors.

(15)

In all applications for a special land use permit the burden shall be on the applicant both to produce sufficient information to allow the city fully to consider all relevant factors and to demonstrate that the proposal complies with all applicable requirements and is otherwise consistent with the policies reflected in the factors enumerated in this chapter for consideration by the city.

(Code 1985, § 22-17)

(a)

In all classifications there may be established a use for the temporary location of a mobile home or a temporary land use only upon issuance of a temporary land use permit, which may be issued by the mayor and council upon the following conditions, except in cases involving construction of mobile units or mobile education units which may be issued by the building official without a hearing: Application for a use permit shall be filed and shall meet all the requirements of an application for zoning as provided by this chapter. Such application shall have attached thereto a separate statement of the applicant that he recognizes that the use permit, if granted, is for a temporary time only and that the applicant shall cause the removal of the mobile home or the removal of all possessions on the termination of the use permit, or upon the applicant's failure to do so irrevocably grants the city the right to remove the mobile home or possessions from the premises at the expense of the applicant, for which the applicant agrees to pay.

(b)

The mayor and council may permit the following:

(1)

A mobile home may be parked and occupied in all residential or commercial districts where a building permit has been applied for and obtained from the proper department of the city for the construction of either a home or a place of business.

(2)

A mobile home may be parked and occupied in any residential area where a medical hardship exists. For purposes of this section, the term "medical hardship" means a person whose health or mental condition necessitates attention and supervision from the occupants of the dwelling located on the lot on which it is desired to have the mobile home parked and occupied. In no case shall such a use be allowed unless it is shown by the county health department or by other appropriate medical evidence that the person to occupy the mobile home falls within the provisions of this subsection and unless it is satisfactorily shown that the dwelling on the premises does not contain sufficient facilities to accommodate the proposed occupant of the mobile home. In addition, the application shall contain an affidavit or certified statement of a physician showing that present facilities are inadequate and stating that a hardship condition requiring the use of a mobile home for the health care of a member of the immediate family of the occupant of the premises exists.

(3)

A mobile home may be parked and occupied in any commercial or industrial district where a building permit has been applied for and where its primary function is that of an office or for storage or related purposes.

(4)

A mobile home may be parked and occupied in any district on property owned or leased by a church, chapel, temple, synagogue, other places of worship or a school for a period not to exceed 12 months where its primary function is that of an office or classroom or for storage or related purposes, provided that not more than one mobile home for each two acres of vacant land may be located thereon.

(5)

In all residential classifications, the mayor and council may grant a use permit for the temporary use of one of the homes or for the parking of a mobile home to be used as a real estate sales office for sale of the lots for new homes built and developed within the boundaries of the development, provided that final plans have been approved therefor by all city authorities. The specific location of the mobile home shall be subject to the approval of the mayor and council.

(6)

In all classifications, the mayor and council may grant a temporary use permit for the use of the land itself under the same ordinance governing mobile home use.

(7)

In all instances where an application for a mobile home permit has been applied for, the mayor and council shall take into consideration the need for such permit, the aesthetic effect that it may have on the neighborhood, and the location on the property of the mobile home, and may in its discretion grant or refuse a permit, and the grant or refusal shall not be mandatory, but in all instances shall be permissible depending on the finding of the mayor and council as to the conditions stated in this section and any other lawful criteria.

(c)

For purposes of this section only, the term "mobile home" means both mobile structures designed to function as residences and mobile structures designed to function as classrooms, offices and storage buildings.

(d)

Use permits may be issued for a period of not more than 24 calendar months other than medical hardships and construction hardship permits which shall be not more than 12 months and shall terminate automatically unless reissued. Any such use for a period of more than 12 months shall necessitate applying for a new permit or renewal.

(e)

Any violation of this section or the cessation of the need for a use permit shall be grounds for revocation of such permit by the mayor and council in addition to all other remedies provided by law.

(Code 1985, § 22-18)

(a)

Prerequisites for processing; contents. Prior to processing of any application for rezoning or a land use permit, the applicant shall be required to file documentation and follow certain procedures as set forth in this section. The applicant shall be required to file an application with the city containing the following:

(1)

A completed application shall be filed on forms prescribed by the city.

(2)

The signatures of the applicant and record titleholder shall appear upon the application.

(3)

The application fee which has been established from time to time by resolution of the mayor and council shall be paid. A copy of the fee schedule shall be maintained for public inspection in the city.

(4)

The applicant shall submit a current boundary survey and plot plan, to scale, prepared by a registered surveyor or registered engineer. Five copies of site plans shall also include such other information thereon as may be required by the city, including preliminary plans for development, building locations, parking areas, access points, adjacent streets, land lot lines, buffer areas, future right-of-way, wetlands, floodplains, utilities and retention.

(5)

Private sewage disposal must be approved by the county health department, and written approval from the health department must be filed with the application.

(6)

The applicant shall submit any other information required by the city which they deem necessary or desirable in processing the application, which is related to the present or proposed use of the property.

(7)

Every application for rezoning involving a request for a nonresidential zoning district shall include a complete written, documented analysis of the impact of the proposed rezoning with respect to each of the following matters:

a.

Whether the zoning proposal will permit a use that is suitable in view of the use and development of adjacent and nearby property;

b.

Whether the zoning proposal will adversely affect the existing use or usability of adjacent or nearby property;

c.

Whether the property to be affected by the zoning proposal has a reasonable economic use as currently zoned;

d.

Whether the zoning proposal will result in a use which will or could cause an excessive or burdensome use of existing streets, transportation facilities, utilities or schools;

e.

Whether the zoning proposal is in conformity with the policy and intent of the land use plan;

f.

Whether there are other existing or changing conditions affecting the use and development of the property which give supporting grounds for either approval or disapproval of the zoning proposal;

g.

Whether the development of the property under the zoning proposal will conform to, be a detriment to or enhance the architectural standards, open space requirements and aesthetics of the general neighborhood, considering the current historical and planned uses in the area;

h.

Under any proposed zoning classification, whether the use proposed may create a nuisance or is incompatible with existing uses in the area; and

i.

Whether due to the size of the proposed use, in either land area or building height, the proposed use would affect the adjoining property, general neighborhood and other uses in the area positively or negatively.

(8)

Any application for a rezoning involving a request of more than 75 residential dwelling units or 50,000 square feet of nonresidential building space, in single or multiple phases, (exempting redevelopment projects) shall be required to submit a traffic impact study (prepared in accordance with industry accepted standards, including, at a minimum, level of service impacts for adjacent roadways and intersections) and mitigation package to address the cumulative effects from the project's impact. The applicant shall also be required to coordinate and fund any recommended mitigation measures limited to project related improvements with applicable federal, state and local agencies including the Georgia Regional Transportation Authority and the Atlanta Regional Commission. Any application for a rezoning involving a request of more than 150 residential dwelling units or 100,000 square feet of nonresidential building space, in single or multiple phases, (exempting redevelopment projects) shall be required to submit a traffic impact study (prepared in accordance with industry accepted standards, including, at a minimum, level of service impacts for adjacent roadways and intersections), the scope of which shall be determined by the director of the public works or his designee and shall, at a minimum, address conditions and impacts resultant from the project within a ten-year scope. The applicant shall also be required to coordinate and fund any recommended mitigation measures limited to project related improvements with applicable federal, state and local agencies including the Georgia Regional Transportation Authority and the Atlanta Regional Commission.

(b)

Public notice and advertising of hearings.

(1)

The building official shall cause to have posted, in a place conspicuous to the nearest public roadway on the property, one or more signs, each of which will not be less than 20 inches by 20 inches and shall include the location of the property, the present zoning classification of the property, the proposed zoning classification of the property, and each of which shall contain information as to the proposed change and the date and time and place of the public hearing before the city council. No such public hearing shall take place until the signs have been posted for at least 15 days prior to the council hearing. In addition to the requirements of O.C.G.A. § 36-66-4, the zoning division shall supply a sign that contains the following language:

(2)

The building official shall cause to have advertising in the legal organ of the city pursuant to O.C.G.A. § 36-66-4, as amended from time to time. The advertisement shall include a notice of the date, time and place of all public hearings, as well as the nature of the proposed zoning changes.

(c)

Attendance at hearing. The applicant or representative of the applicant shall be required to attend all public hearings on the application. The failure to attend may result in dismissal with prejudice, rejection of the application or continuance of the hearing at the mayor and council's sole discretion. Failure of the applicant or his representative to appear at the next regularly scheduled hearing shall result in automatic dismissal with prejudice. The building official may waive the attendance requirement for land use permits based upon medical hardship.

(d)

Withdrawal of application.

(1)

An application may only be withdrawn upon a joint written request of the record titleholder and applicant or their legal counsel. In order to withdraw as of right and without prejudice, the request to withdraw must be given at the city at least seven days prior to the hearing before the planning and zoning commission. Applicants or their legal counsel may personally request (via written or verbal request) withdrawal during a planning and zoning commission or mayor and council's public hearing, provided that the request is made prior to the close of the public hearing. The public hearing shall be considered closed when announced as such by the planning and zoning commission chairperson or city attorney following presentations by the applicant and opposition during their allotted time period. If permission is denied at such time, the application may not be withdrawn and shall be acted upon in the usual manner. In no event shall an application be withdrawn after the vote by the mayor and council. Further, in no event shall an application be withdrawn more than once without prejudicing the right of the applicant or owner to apply for a land use permit or rezoning within 12 months of the first application.

(2)

An application which is withdrawn within seven days of the planning and zoning commission hearing without the permission of the planning and zoning commission shall be deemed a rejected application with prejudice.

(3)

Applications which have been publicly heard by either the planning and zoning commission or the mayor and council and which have been withdrawn without right and without permission by a majority vote as set forth in subsection (d)(1) of this section shall be deemed a rejected application with prejudice.

(e)

Resubmission of rejected/deleted applications.

(1)

If an application for rezoning is rejected or deleted to another zoning classification, then any portion of the same property may not again be considered for rezoning for a period of 12 months from the date of the original planning and zoning commission's hearing. An applicant may reapply for rezoning to a more restrictive classification than the application previously denied, or denied without prejudice, following the expiration of six months in accordance with O.C.G.A. § 36-66-5, as amended from time to time.

(2)

The mayor and council may only consider property for rezoning within the six-month time period in connection with settlement of litigation or pursuant to an order by a court of competent jurisdiction. The mayor and council shall advertise, post the property, and conduct another public hearing prior to taking such action.

(Code 1985, § 22-71)

After the filing of a proper application, the city shall make a written recommendation and zoning analysis (staff report) relating to the following:

(1)

Whether the zoning proposal will permit a use that is suitable in view of the use and development of adjacent and nearby property;

(2)

Whether the zoning proposal will adversely affect the existing use or usability of adjacent or nearby property;

(3)

Whether the zoning proposal will result in a use which will or could cause an excessive or burdensome use of existing streets, transportation facilities, utilities or schools;

(4)

Whether the zoning proposal is in conformity with the policy and intent of the land use plan;

(5)

Whether there are other existing or changing conditions affecting the use and development of the property which give supporting grounds for either approval or disapproval of the zoning proposal;

(6)

Whether the development of the property under the zoning proposal will conform to, be a detriment to or enhance the architectural standards, open space requirements and aesthetics of the general neighborhood, considering the current historical and planned uses in the area;

(7)

Under any proposed zoning classification, whether the use proposed may create a nuisance or is incompatible with existing uses in the area; and

(8)

Whether due to the size of the proposed use, in either land area or building height, the proposed use would affect the adjoining property, general neighborhood and other uses in the area positively or negatively.

(Code 1985, § 22-72)

(a)

The planning and zoning commission shall conduct a public hearing on each application for a land use permit or rezoning in accordance with a schedule and procedures adopted by the mayor and council. A staff report on each application shall be submitted to and considered by the planning and zoning commission at the public hearing. The planning and zoning commission shall investigate and consider each of the matters listed in the staff report.

(b)

As to each application, the planning and zoning commission shall make a recommendation for approval, denial, deferral, continuance, hold, withdrawal without prejudice or no recommendation. The planning and zoning commission shall not hold any application for more than two additional hearing dates, unless the application seeks to add additional property in accordance with the application procedures described in this chapter. Written minutes of the planning and zoning commission's recommendation to the mayor and council shall be prepared, maintained and submitted to the mayor and council prior to its hearing. Additionally, the staff report and applicant's report shall be submitted to the mayor and council. All documents shall thereafter become public record.

(Code 1985, § 22-73)

(a)

Before taking action on an application for rezoning and after receipt of the staff report, the planning and zoning commission's recommendation and the applicant's report, where required, the mayor and council shall conduct a public hearing on the application in accordance with rules and procedures as may be adopted by the mayor and council from time to time. Prior to or in conjunction with the hearing, the mayor and council shall review the applicant's report, if any, the staff report and the planning and zoning commission's recommendation.

(b)

So that the purpose of this chapter will be served and the health, public safety and general welfare secured, the mayor and council may approve or deny the application, reduce the land area for which the application is made, change the zoning classification, district or category requested, either to a more restrictive zoning classification, district or category, add or delete conditions of the application, including, but not limited to, site-specific conditions, or allow an application to be withdrawn without prejudice with respect to the 12-month limitation of this division. An action by the mayor and council to defer or continue the application shall include a statement of the date and time of the next meeting at which the application will be considered, which statement shall constitute public notice of the hearing on the application, and no further notice, except posting and legal advertising is required.

(c)

The decision by the mayor and council to approve in whole or part, reject, condition or delete an application for rezoning shall be based on, but not limited to, a consideration of the following criteria:

(1)

Whether the zoning proposal will permit a use that is suitable in view of the use and development of adjacent and nearby property;

(2)

Whether the zoning proposal will adversely affect the existing use or usability of adjacent or nearby property;

(3)

Whether the zoning proposal will result in a use which will or could cause an excessive or burdensome use of existing streets, transportation facilities, utilities or schools;

(4)

Whether the zoning proposal is in conformity with the policy and intent of the land use plan;

(5)

Whether there are other existing or changing conditions affecting the use and development of the property which give supporting grounds for either approval or disapproval of the zoning proposal;

(6)

Whether the development of the property under the zoning proposal will conform to, be a detriment to or enhance the architectural standards, open space requirements and aesthetics of the general neighborhood, considering the current historical and planned uses in the area;

(7)

Under any proposed zoning classification, whether the use proposed may create a nuisance or is incompatible with existing uses in the area; and

(8)

Whether due to the size of the proposed use, in either land area or building height, the proposed use would affect the adjoining property, general neighborhood and other uses in the area positively or negatively.

(Code 1985, § 22-74)

Approval of an application for rezoning does not ensure the availability of utilities or other infrastructure in connection with development of the site.

(Code 1985, § 22-75)

On any rezoning which is conditioned upon a site plan, proposed minor modifications which do not alter or conflict with the basic intent of the plan may be approved by the building official after presentation and approval by the mayor and council at any regularly scheduled meeting or hearing. Also, on any rezoning which is conditioned upon a stipulation or stipulations, proposed minor amendments to the stipulations which do not alter or conflict with the basic intent of the rezoning on which they apply may be approved by the building official after, first, determination by the mayor and council that the amendments are minor and, second, approval of the amendments by the mayor and council at any regularly scheduled meeting or hearing. All other modifications must be advertised and rezoned in accordance with the provisions set forth in this division.

(Code 1985, § 22-76)

Any person, persons or entities jointly or severally aggrieved by any decision of the mayor and council on a rezoning application may take an appeal to the superior court of Cobb County. The appeal shall be a de novo determination of the decision before the judge of the superior court without a jury. Any appeal must be filed within 30 days of the decision by the mayor and council, and, upon failure to file the appeal within 30 days, the decision of the mayor and council shall be final. For the purpose of this section, the appeal time shall run from the day the particular vote or action is taken.

(Code 1985, § 22-77)

Any person, persons or entities jointly or severally aggrieved by any decision by the mayor and council on land use or a special land use permit application may take an appeal to the superior court of Cobb County. The quasi-judicial appeal shall be limited to the proceedings and record before the mayor and council. Any appeal must be filed within 30 days of the decision of the mayor and council, and, upon failure to file the appeal within 30 days, the decision of the mayor and council shall be final. For the purpose of this section, the appeal time shall run from the day the particular vote or action is taken.

(Code 1985, § 22-78)