If in the judgment of the Zoning Administrator, the application of any particular numeric criteria, standard or requirement of this Ordinance causes undue hardship on the applicant, the Zoning Administrator shall be empowered to grant an administrative adjustment to adjust said requirement by up to twenty (20) percent, if in doing so, the purposes of the ordinance are not impaired, and there is not a negative impact on the surrounding uses, properties, or neighbors. In granting an administrative adjustment, the Zoning Administrator may attach such conditions as the Zoning Administrator may deem advisable so that the purpose of this Ordinance will be served, public safety and welfare secured and substantial justice done. The Zoning Administrator shall not be authorized to grant a use in a district in which the use is prohibited. An administrative adjustment shall be granted or denied in writing. Notice of the grant of an administrative adjustment shall be sent to all adjoining property owners via first class mail by the applicant. The notice shall describe the adjustment granted and state that interested parties have 15 days in which to file an appeal of the decision. Only owners reflected on the records of the tax assessors as of the date of the application shall be entitled to notice. Proof of mailing, as described in Sec. 14.5.3, shall be submitted to the Zoning Department within 10 days of grant of the adjustment. The 15 days shall be counted from the date of mailing of the notice. The purpose of the administrative adjustment is to address particular hardship situations of individual lots and parcels. The purpose is not to grant a wholesale adjustment for an entire subdivision. For any residential subdivision or development, no more than ten percent (10%) of the units can receive the same administrative adjustment. Any greater request must seek a variance under Sec. 14.4. For example, for a 150 lot R-8 subdivision, the front yard setback of no more than 15 lots can be reduced below 20 feet by administrative adjustment. Similarly in non-residential development, the administrative adjustment should be applied only when necessary for a hardship situation such as topography concerns.

(Ord. of 7-21-2021(4); Ord. of 8-9-2023, § XXX)

14.2.1 The Board of Zoning Appeals, also referred to as the Board of Appeals, was established by previous version of this Ordinance, and remains authorized under this Ordinance. Existing Board members shall continue in their current terms unaffected by the adoption of this Ordinance. The Board consists of five (5) members and two (2) alternate members appointed by the County Commissioner for staggered terms of three (3) years. Each successive appointment shall be for three (3) years.

14.2.2 Members shall be paid per meeting at a rate established by the Commissioner and may be reimbursed for any expenses incurred while representing the board. Any vacancy in the membership of the board of appeals shall be filled for the unexpired term in the same manner as the initial appointment. Members shall be removable for cause by the county commissioner upon written charges and after public hearing. The board of appeals previously appointed under the authority of the prior zoning ordinance shall continue without change as if appointed under this ordinance.

14.2.3 Alternate members can only vote when there is a lack of a quorum from other members.

(Ord. of 7-21-2021(4))

14.3.1 The Board of Appeals shall elect a chair-person and a vice chair-person 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 county officer, an employee of the county, 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.

14.3.2 Meetings of the Board shall be held at the call of the chair-person and at such other times as the Board may determine. The chair-person, or in his absence, the vice chair-person, may administer oaths to witnesses.

14.3.3 The 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.

14.3.4 All meetings of the Board of Appeals shall be open to the public.

(Ord. of 7-21-2021(4))

The Board of Appeals shall have the following powers and duties:

14.4.1 Appeals. To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by the Zoning Administrator in the enforcement of this Ordinance. Appeals to the Board of Appeals may be taken by any person aggrieved or by any officer, department, board, or bureau of Bartow County affected by any decision of the Zoning Administrator. Such appeal shall be taken within thirty (30) days of said decision by filing with the Zoning Administrator a written notice of appeal specifying the grounds thereof. Decisions on appeals shall be issued in writing within ten days of the appeal.

14.4.2 Variances. The Board of Appeals has the power to hear requests for variances from the provisions of this Ordinance. Variance 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:

(i)

the property is exceptionally narrow, shallow or unusually shaped,

(ii)

the property contains exceptional topographic conditions,

(iii)

the property contains other extraordinary or exceptional conditions, or

(iv)

there are existing other extraordinary or exceptional circumstances; and

(B)

That the strict application of the requirements of this Ordinance 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 Ordinance.

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

14.4.3 Conditions. In granting a variance, the Board of Appeals 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 Ordinance will be served, public safety and welfare secured and substantial justice done.

14.4.4 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 Zoning Administrator, 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 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. A variance application shall not be accepted if the variance seeks something that cannot be varied, or to eliminate rather than modify a requirement or regulation. A variance application shall not be accepted if the variance is contradictory to the ordinance (such as reducing a requirement to zero or totally eliminating a requirement). A variance shall not be granted to increase the maximum area of signs as permitted in a zoning district, nor the maximum number of signs. A variance shall not be granted to approve a billboard nor to convert an existing sign to electronic signage. A variance shall not be granted to reduce the C-1 zoning district design standards for new construction.

14.4.5 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 February 21, 1996. Configuring a subdivision to create lots that are difficult to build is an example of a hardship created by the property owner or processor, that do not justify a variance.

14.4.6 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.

14.4.7 Group homes. If the variance is related to a Group Home for Persons with a Disability, the Board shall additionally consider what reasonable accommodations in this Ordinance can be made to provide persons with a disability equal opportunities to use and enjoy dwellings, while not abrogating the purposes of this Ordinance. Any reasonable accommodation should only relate to the disability.

(Ord. of 7-21-2021(4))

14.5.1 Applications. Applications for appeals or variances must be filed in accordance with the schedule set out by the Zoning Administrator. The contents of the application shall be determined by the Zoning Administrator. The Zoning Administrator 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 Zoning Administrator. Written notice of the date, time and location of the Board's hearing shall be mailed to the owner of the property that is the subject of the application at least 30 days prior to the hearing.

14.5.2 Published notice. Due notice of the public hearings pursuant to this Article shall be published in the newspaper of general circulation within the county. 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 thirty (30) days but not more than forty-five (45) days prior to the date of the hearing. The cost of the advertisement shall be borne by the applicant. The Zoning Administrator shall post, at least thirty (30) days prior to the Board of Appeals' 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.

14.5.3 Letters to adjacent property owners. The applicant for said appeal or variance shall also give notice of the appeal or variance and the public hearing thereon to all property owners 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 notice. In determining the adjoining property owners, road, street or railroad rights-of-way shall be disregarded. Proof of mailing for each recipient shall be provided to the Zoning Administrator before the public hearing. Said notice must be mailed at least fifteen (15) days prior to the date of said scheduled public hearing.

14.5.4 Information in notice. The notice required herein to be published and to be served upon adjacent property owners shall contain the following information: (A) name and address of the applicant; (B) address and location of the property for which the appeal or variance is sought; (C) current zoning of the property for which the appeal or variance is sought; (D) the variance requested or the subject matter of the appeal and the reason for the requested variance or the appeal; and (E) the date, time and place of the public hearing on said requested appeal or variance.

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

(Ord. of 7-21-2021(4); Ord. of 8-10-2022(2), § I)

An appeal stays all legal proceedings in furtherance of the action appealed from, unless the Zoning Administrator certifies to the Board of Appeals 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 Board of Appeals or by a restraining order issued by a court of record on application, on notice to the Zoning Administrator, and for due cause shown.

(Ord. of 7-21-2021(4))

14.7.1 In exercising its powers, the Board of Appeals may, in conformity with the provisions of this Ordinance, 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 Zoning Administrator.

14.7.2 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 Zoning Administrator, or to decide in favor of the applicant on any matter upon which it is required to pass under this Ordinance or to affect any variation of this Ordinance.

14.7.3 On all appeals, applications and other matters brought before the Board of Appeals, 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 county attorney and signed by the secretary.

(Ord. of 7-21-2021(4))

14.8.1 Sign up. All persons who wish to address the Board of Appeals at a hearing concerning an appeal or variance under consideration by the Board of Appeals shall first sign up on a form to be provided by the County prior to the commencement of the hearing. At least one person representing the application must be present at the hearing in order to explain the request and/or respond to questions regarding the application. if no one is present, the Board of Appeals shall be empowered to table or deny the application.

14.8.2 Matter presented; out of order applications. The Secretary of the Board of Appeals will read the proposed appeal or variance under consideration in the order determined by the Zoning Administrator. The Zoning Administrator, 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 Ordinance shall be deemed out of order and shall not be considered at that hearing. It shall be postponed until the next meeting, and if it is still out of order at the next meeting, the application shall be deemed denied.

14.8.3 Speakers. The Secretary of the Board of Appeals shall call each person who has signed up to speak on the appeal or variance then before the Board of Appeals 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 or herself and state his/her 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 Board of Appeals 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.

14.8.4 Time limits. The applicant or appellant and those in favor of the variance or appeal shall have fifteen (15) minutes to speak, total. Those opposed to the application or appeal shall have fifteen (15) 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 fifteen 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.

14.8.5 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.

14.8.6 Decorum and order. Each speaker shall speak only to the merits of the proposed appeal or variance under consideration and shall address his/her remarks only to the members of the Board of Appeals. 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 assure that the public hearing on the appeal or variance is conducted in a fair and orderly manner.

(Ord. of 7-21-2021(4))

14.9.1 Appeal to commissioner. Recourse from a decision by the Board of Appeals shall be to the Commissioner of Bartow County, by filing a written notice of appeal within thirty days of the Board of Appeal's decision. The Commissioner shall have a hearing on said appeal within 60 days of completion of preparation of the record and transcript, which shall be certified to the Commissioner by the County Attorney or other designee. The Commissioner's hearing shall be noticed according to the requirements of Section 14.5, including published notice, sign, and letters to property owner and adjacent property owners. The hearing shall be open to the public, but public comment shall not be taken. At the hearing, the Commissioner shall review the evidence presented below, which shall automatically include the Zoning Ordinance, Official Zoning Map, the County's file on the application, and any other County Ordinance relevant to the dispute. No new evidence not presented to the Board of Appeals may be presented on an appeal to the Commissioner; only argument of counsel (or unrepresented parties) is permitted. The Commissioner may issue a decision at the hearing or may issue a written decision within ten days. Appeals can be taken by the applicant, any opponent, or the County staff.

14.9.2 Appeals to superior court. Parties seeking an appeal from a final decision of the Commissioner reviewing the Board of Zoning Appeals' decision shall file an appeal with the Superior Court of Bartow County in the manner provided by law.

(Ord. of 7-21-2021(4); Ord. of 8-10-2022(2), § II)