This article describes the process for addressing unusual situations or unique problems that may arise from the strict interpretation or enforcement of this Development Code, including appeals from an administrative decision, for a special exception, for unique hardships restricting reasonable use of a property, and for relief from flood damage prevention restrictions.

(Ord. of 10-13-2020)

(a)

Types of appeals. Persons may appeal to the board of appeals for relief under the following circumstances:

(1)

When aggrieved by an action or an interpretation of the planning and community development director or any other administrative official of the county made under this Development Code, including the denial of a permit authorized under this Development Code.

(2)

When an exception is desired for a particular property from certain requirements of this Development Code, as specified in this article.

(3)

When compliance with the requirements of this Development Code would create a particular and unique hardship.

(4)

When the requirements for flood damage prevention would create an exceptional hardship or adversely affect an historic structure.

(b)

Restrictions.

(1)

The board of appeals 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.

(2)

The board of appeals shall not be authorized to grant a variance to any condition of approval established by the board of commissioners for a particular rezoning or special use approval. Changes to conditions of approval established by the board of commissioners shall be considered only through the same process through which the conditions were first approved (See the procedures and permits article of this Development Code).

(Ord. of 10-13-2020)

(a)

Initiation of administrative appeal.

(1)

Any person aggrieved by an administrative decision affecting their property or request for a permit may initiate an appeal of the administrative action or interpretation to the board of appeals. Such appeal shall be taken within 30 days of the action or interpretation appealed from, by filing the appeal in writing with the planning and community development director. The planning and community development director shall transmit a notice of said appeal to the board of appeals specifying the grounds thereof.

(2)

It is the intention of this Development Code that all questions arising in connection with the enforcement of this Development Code shall be presented first to the director of the Planning and Community Development Department and that such question shall be presented to the board of appeals only on appeal from the decision of the planning and community development director.

(3)

The holder of or applicant for a development permit or a building permit may appeal any of the following actions taken by an administrative official:

a.

The suspension, revocation, modification or approval with conditions of a development permit by the planning and community development department upon finding that the holder is not in compliance with the approved erosion and sedimentation control plan or other approved plans.

b.

The determination that the holder is in violation of a development permit or building permit conditions.

c.

The determination that the holder is in violation of any other provision of this Development Code.

(4)

Advance notice of the board of appeals' hearing on appeal shall take the form of such notice or advertising as is required by state or other local laws or ordinances including at least 30 but not more than 45 days written notice published in a newspaper of general circulation within the county stating the time, place and purpose of the hearing.

(5)

The planning and community development director shall coordinate the review of each variance request by all other affected county departments and shall summarize such comments or recommendations as may be received to the board of appeals for final action in their normal course of business.

(b)

Action by board of appeals. The board of appeals, upon appeal of an aggrieved party or at the request of the planning and community development director, shall:

(1)

Decide appeals from any order, determination, decision or other interpretation by any person acting under authority of this Development Code, where a misinterpretation or misapplication of the requirements or other provisions of this Development Code is alleged.

(2)

Interpret the use of words or phrases within the context of the intent of this Development Code.

(3)

Determine the boundaries of the various zoning districts where uncertainty exists.

(4)

Interpret such other provisions of this Development Code as may require clarification or extension in specific or general cases.

(c)

Temporary suspension of legal proceedings. An appeal of an administrative decision stays all legal proceedings in furtherance of the action appealed from, unless the officer or department head from whom the appeal is made certifies to the board of appeals, after the notice of appeal shall have been filed, that by reason of facts stated in the certificate a stay would cause imminent peril to life or property. In such case, proceedings shall not be stayed otherwise than by a restraining order granted by a court of competent jurisdiction.

(d)

Decision final. A decision of the board of appeals shall be final and may be appealed only to a court of competent jurisdiction. Such appeal must be taken within 30 days of the decision of the board of appeals.

(Ord. of 10-13-2020; Ord. of 6-27-2023, § 1(Exh. A))

(a)

Generally. General limitations on relief special exception variances shall be limited to relief from the following requirements of this Development Code:

(1)

Minimum building setbacks.

(2)

Maximum building height.

(3)

Minimum lot width.

(4)

Minimum separation between agricultural and residential uses.

(5)

Public street frontage.

(6)

Buffers and screening.

(7)

Signage, in accordance with a master sign plan.

(8)

Minimum or maximum parking requirements.

(9)

Underground utilities installation required in the HCO district.

(b)

Standards for approval. A special exception variance may be granted upon a finding that the relief, if granted:

(1)

Would not cause substantial detriment to the public good; and

(2)

Would not be injurious to the use and enjoyment of the environment or of other property in the immediate vicinity; and

(3)

Would not diminish or impair property values within the surrounding neighborhood; and

(4)

Would not impair the purpose and intent of the Development Code.

(c)

Administrative approval.

(1)

Special exception variances shall be considered by the board of appeals unless the variance is approved administratively. Only those variances listed in this subsection, below, and within the parameters stated, may be considered for administrative approval. Notwithstanding the foregoing sentence, a special exception variance associated with a rezoning application or special use approval may be heard by the board of commissioners which may concurrently grant approval of rezoning or special use and variance, if warranted, in accordance with article XII.

(2)

The planning and community development director, upon a finding that a special exception variance meets the standards for approval contained in this section, may administratively approve such special exception variance within and not exceeding the following parameters:

a.

Minimum building setbacks, not to exceed a reduction in the minimum setback required by 25 percent and may not be approved for more than 25 percent of the lots in the recorded subdivision.

b.

Variance not to exceed ten feet for distance between buildings on same lot.

c.

Maximum building height, not to exceed an additional five feet above the maximum allowed.

d.

Parking requirements, not to exceed a reduction from the minimum required by five percent, nor an increase in the maximum allowed by five percent.

e.

Variance limited to reducing minimum single-family lot area required to be above intermediate regional flood contour elevation to 50 percent and distance of dwelling unit from intermediate regional flood contour elevation to minimum yard requirements of applicable zoning districts and only upon written approval of the director of public works.

(3)

In granting a variance, the planning and community development director may attach thereto any conditions which may be deemed advisable so that the purpose of this Development Code will be served, public safety and welfare secured, and substantial justice done.

(4)

Any administrative approval of a special exception variance pursuant to this section 89-1384(c) may be appealed in accordance with the procedures described in section 89-1383.

(d)

Restriction on refiling if denied. If denied, an appeal for a special exception variance affecting the same property shall not be reconsidered for a period of 12 months from the date of denial; provided, however, that the board of appeals may reduce the waiting period under extenuating circumstances or on its own motion.

(e)

Limitations on approval. In no case shall a special exception variance be granted from the conditions of approval imposed on a property through a zoning change granted by the board of commissioners.

(Ord. of 10-13-2020; Ord. of 6-27-2023, § 1(Exh. A))

(a)

Hardship variances; general.

(1)

Relief from the application of the provisions of this Development Code may be granted by the board of appeals upon a finding that compliance with such provision will result in a hardship to the property or owner that is substantially unwarranted by the protection of the public health, safety or general welfare, and the need for consistency among all properties similarly zoned.

(2)

Such relief may be granted only to the extent necessary to alleviate such unnecessary hardship and not as a convenience to the applicant nor to gain any advantage or interest over similarly zoned properties.

(3)

Concurrent variance and rezoning consideration. A hardship variance associated with a rezoning or special use approval application may be heard by the board of commissioners which may concurrently grant approval of rezoning or special use and variance, if warranted, in accordance with article XII.

(b)

Standards for approval. A hardship variance may be granted in whole or in part, or with conditions, in individual case of unnecessary hardship only upon a finding by the board of appeals that all of 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; or

(2)

There are conditions that are peculiar to the property involved which adversely affect its reasonable use or usability as currently zoned; and

(3)

The application of this Development Code to the particular piece of property would create an unnecessary hardship; and

(4)

The variance will not result in an increase of the impervious surface of the development beyond that prescribed in the environmental protection article of this code; and

(5)

Relief, if granted, would not cause substantial detriment to the water quality of the Mulberry River, protected watersheds or stream buffers; and

(6)

Relief, if granted, would not cause substantial detriment to the public good or impair the purposes and intent of this Development Code.

(c)

Conditions. The board of appeals board of appeals may, as a condition of the variance approval, require that alternative measures be taken by the applicant such that the purposes of this Development Code may be achieved through alternative means.

(d)

Limitations on approval. In no case shall a hardship variance be granted for any of the following:

(1)

A condition created by the applicant, including the result of an unwise investment decision or real estate transaction.

(2)

A change in the conditions of approval imposed through a zoning change granted by the board of commissioners.

(3)

Reduction of a minimum lot size required by a zoning district.

(4)

A use of land or buildings or structures that is not permitted by the zoning district that is applicable to the property.

(5)

Any increase in the number of dwelling units or nonresidential building floor area otherwise permitted by the zoning district that is applicable to the property.

(e)

Restriction on refiling if denied. If denied, an appeal for a hardship variance affecting the same property shall not be reconsidered for a period of 12 months from the date of denial; provided, however, that the board of appeals may reduce the waiting period under extenuating circumstances or on its own motion.

(f)

Fair Housing Act accommodation variance. Notwithstanding any other provisions in this article XIII to the contrary, the board of appeals may grant a variance to the limitations on personal care homes contained in section 89-179 and the definitions referenced therein if the applicant for such a variance shows a documented need for accommodation based on medical or scientific studies, that the requested accommodation is the minimum necessary variance from the restrictions of the UDC, that the requested accommodation does not impose an undue burden or expense on the county or its citizens, and that the requested accommodation does not effectively create a fundamental alteration of the existing zoning scheme. An application for a Fair Housing Act accommodation variance shall comply with all other procedural requirements for consideration and approval of hardship variances.

(Ord. of 10-13-2020; Ord. of 6-27-2023, § 1(Exh. A))

(a)

Flood damage prevention variances; general.

(1)

A flood damage prevention variance may be considered when there is an alleged error in any requirement, decision or determination made by the county in the enforcement or administration of the flood damage prevention provisions of this Development Code.

(2)

A flood damage prevention variance may be considered for the reconstruction, rehabilitation or restoration of a building listed on the National Register of Historic Places or the State Inventory of Historic Places provided that the proposed reconstruction, rehabilitation or restoration will not result in the building losing its historical designation.

(b)

Standards for approval. In passing upon a flood damage prevention variance, the board of appeals shall consider all technical evaluations, all relevant factors, all standards specified in other sections of this Development Code relating to flood damage prevention, and the:

(1)

Danger that materials may be swept onto other lands to the injury of others;

(2)

Danger to life and property due to flooding or erosion damage;

(3)

Susceptibility of the facility and its contents to flood damage and the effect of such damage on the individual owner;

(4)

Importance of the services provided by the facility to the community;

(5)

Necessity of the facility to a waterfront location, in the case of a functionally dependent facility;

(6)

Availability of alternative locations, not subject to flooding or erosion damage, for the proposed use;

(7)

Compatibility of the use with existing and anticipated development;

(8)

Relationship of the use to the comprehensive plan and floodplain management program for that area;

(9)

Safety of access to the property in times of flood for ordinary and emergency vehicles;

(10)

Expected heights, velocity, duration, rate of rise and sediment transport of the floodwaters and the effects of wave action, if applicable, expected at the site; and

(11)

Costs of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical and water systems, and streets and bridges.

(c)

Limitations on approval.

(1)

Upon consideration of the standards listed above, and the purposes of this Development Code, the board of appeals may attach such conditions to the granting of the variance as it deems necessary to further the purposes of flood damage prevention.

(2)

Variances shall not be issued within any designated floodway if any increase in flood levels during the base flood discharge would result.

(3)

Conditions for variances are as follows:

a.

Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief; and in the instance of an historical building, a determination that the variance is the minimum necessary so as not to destroy the historical character and design of the building.

b.

Variances shall only be approved upon:

1.

Showing of good and sufficient cause;

2.

Determination that failure to grant the variance would result in exceptional hardship; and

3.

Determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expenses, create nuisances, cause fraud on or victimization of the public, or conflict with existing local laws or development codes.

(d)

Requirements if approved.

(1)

Any applicant to whom a variance is granted shall be given written notice specifying the difference between the base flood elevation and the elevation to which the building is to be built and stating that the cost of flood insurance will be commensurate with the increased risk resulting from the reduced lowest floor elevation.

(2)

The Planning and Community Development Department shall maintain the records of all appeal actions and report any variances to the Federal Emergency Management Agency upon request.

(Ord. of 10-13-2020)

(a)

Application and initial actions.

(1)

Upon receiving a notice of an appeal, the planning and community development director shall assemble such memos, papers, plans, or other documents as may constitute the record for the appeal or as may provide an understanding of the issues involved.

(2)

An application for an appeal shall include such descriptions, maps or drawings as needed to clearly illustrate or explain the action requested. The planning and community development director may request such additional information from the appellant as necessary to provide a full understanding of the appellant's request.

(3)

Once the record has been assembled, the planning and community development director shall:

a.

Review appeals from an administrative decision and special exception variances eligible for administrative approval for possible resolution or approval, respectively; and

b.

Schedule unresolved appeals for consideration at the next meeting of the board of appeals for which adequate public notice can be given.

(b)

Public notice.

(1)

At least 30 days but not more than 45 days prior to the public hearing, notice shall be published in a newspaper of general circulation within the county. The notice shall state the time, place and purpose of the hearing.

(2)

A request for an unresolved special exception variance, a hardship variance or a flood damage prevention variance shall be heard at a public hearing only upon:

a.

The published notice, in addition to the requirements above, shall include the location of the property, the present zoning classification of the property, and the nature of the requested action; and

b.

The planning and community development department shall prepare a sign or signs stating the date, time and place for the public hearing, the present zoning classification and the nature of the requested action, and shall send a letter by first class mail to the applicant or his attorney notifying the appellate of the date, time and place of the public hearing. At least 15 days prior to the public hearing, one such sign shall be placed by the applicant in a conspicuous location along each street frontage of the subject property. If the property has no street frontage, the sign shall be placed on each street at the location from which access will be gained to the property.

(c)

Withdrawal. Any appellant wishing to withdraw an appeal prior to the meeting of the board of appeals shall file a written request for such withdrawal with the planning and community development director. The appeal shall thereupon be removed from the board's agenda and the request shall have no further effect.

(d)

Board of appeals public hearing.

(1)

The chair or the board of appeals' designee, who shall act as the presiding official, shall convene the public hearing at the scheduled time and place.

(2)

The presiding official may administer oaths and compel the attendance of witnesses by subpoena.

(3)

The planning and community development director shall submit the assembled record of the appeal to the board of appeals. The planning and community development director, or other appropriate party if the appeal was taken from an administrative action or interpretation, shall provide such information or explanation as appropriate to the circumstances of the appeal.

(4)

At the public hearing, the appellant may appear in person or may be represented by counsel. The following rules shall obtain in the conduct of the public hearing:

a.

The presiding official shall conduct the public hearing informally, as strict adherence to the rules of evidence is not required. A goal is a fair hearing.

b.

The appellant shall first present evidence to the board. After the appellant has completed the presentation of evidence, opponents shall present such relevant evidence as they think appropriate after being recognized by the presiding official. Both proponents (including the appellant), and opponents shall have equal time to present evidence, which shall be a minimum of ten minutes for each side.

c.

All parties participating in the public hearing shall introduce only relevant evidence.

d.

All parties participating shall have the right to present witnesses and to cross-examine witnesses.

e.

The appellant shall have an opportunity to present rebuttal evidence, but such evidence shall be limited to points or issues raised by the opponents.

f.

The public hearing shall be recorded in order to provide a verbatim record of the hearing.

(5)

Within 30 days of the public hearing, the board of appeals shall provide a written decision with reasons supporting the decision. Such decision shall reflect the vote of the board, as follows:

a.

A motion to approve or deny an appeal must be approved by an affirmative vote of at least a quorum of the members in order for the motion to be approved.

b.

If a motion to approve an appeal fails, the appeal is automatically denied. If a motion to deny an appeal fails, another motion would be in order.

c.

A tie vote on a motion for approval of an appeal shall be deemed a denial of the appeal. A tie vote on any other motion shall be deemed to be no action, and another motion would be in order.

(6)

In taking action on an appeal, the board of appeals may:

a.

Approve, approve with changes, or deny the request; or,

b.

Table the appeal for consideration at its next scheduled meeting; or,

c.

Allow withdrawal of the appeal at the request of the appellant.

(Ord. of 10-13-2020; Ord. of 6-27-2023, § 1(Exh. A))

Upon submission of a valid application for the granting of an appeal on a property, no permits shall be issued nor shall any actions be undertaken on the property that may be affected by the outcome of such application.

(Ord. of 10-13-2020)