The purpose of article VIII is to provide mechanisms for obtaining relief from the provisions of the LDC. Section 26-8.02.00 addresses relief through requirements regarding nonconforming development. Section 26-8.03.00 addresses relief through the grant of a variance in a particular situation due to the characteristics of the land to be developed based on the required site design standards. Section 26-8.04.00 addresses relief through the grant of an administrative waiver in specific situations.

(Ord. No. 18-01, §§ 1, 2, 9-11-2018)

It is the intent of this article to avoid any unreasonable invasions of established private property rights; however, this article recognizes that the elimination of existing structures and uses that are not in conformity with the provisions of the LDC is as much a purpose of this article as is the prevention of new uses that would, if established, be contrary to the purpose and intent of this article.

(a)

Within the zoning and overlay districts established by the LDC there may exist lots, structures, or uses of land which were lawfully established before the LDC was adopted but which do not comply with the requirements set forth in the LDC.

(b)

It is the intent of section 26-8.02.00 to allow these nonconformities to continue until they are removed or discontinued. It is further the intent of this section that nonconformities shall not be enlarged upon, expanded or extended, nor be used as grounds for adding structures or uses prohibited elsewhere in the same district.

(c)

Nonconforming uses are declared to be incompatible with permitted uses in the district where the nonconforming use is located.

(Ord. No. 18-01, §§ 1, 2, 9-11-2018)

(a)

A non-conforming structure or a structure containing a non-conforming use that is damaged or destroyed by fire, explosion, Act of God, or other cause (excluding neglect or dilapidation) to an extent of more than 60 percent of its fair market value at time of the damage or destruction shall be reconstructed only in conformity with the provisions of the LDC.

(b)

A structure that is damaged to an extent less than 60 percent of the fair market value may be restored and occupied as before the damage, provided the following standards are met: The building official may require additional upgrades to electrical system of the structure if found not to be in compliance with current building regulations.

(1)

Restoration shall be commenced within six calendar months from the date damages were incurred.

(2)

If reconstruction is not commenced within six months, the reconstruction and use of the land or structure shall thereafter conform to the provisions of the LDC.

(c)

Fair market value, where required, shall be determined by reference to current statutory provisions pertaining to the valuation of real property for ad valorem tax purposes.

(d)

A nonconforming structure or a structure containing a nonconforming use that is declared by the building official to be physically unsafe or unlawful due to neglect or dilapidation from a lack of repairs and maintenance shall not thereafter be restored, repaired, or rebuilt except in conformity with the regulations of the zoning district in which it is located.

(Ord. No. 18-01, §§ 1, 2, 9-11-2018)

(a)

Any lot of record for which a plat or legal description has been legally recorded in the Office of Clerk of Superior Court of Burke County at the time of adoption of the LDC and was in compliance with all county development regulations at the time of recording but which fails to comply with the dimensional requirements or lot area requirements for the district in which it is located may be used for any of the uses permitted within the district by the LDC, provided that:

(1)

The minimum requirements of the district for front, side, and rear yard, open space, height, and floor area shall be complied with.

(2)

The lot is approved by the board of health for the use of a private waste water system.

(b)

No permit for the use of any lot which is substandard in terms of the provisions of the LDC shall be issued unless said lot was legally and properly recorded prior to the passage of the LDC. In all cases, construction on any substandard lot of record after the adoption of the LDC shall be required to meet all requirements of the district in which it is located.

(c)

If two or more adjoining lots with continuous frontage are in a single ownership at any time after the adoption of this LDC and such lots individually are too small to meet the yard, width, and area requirements of the district in which they are located, such groups of lots may be considered as a single lot or several lots of minimum permitted size and the lot or lots in one ownership shall be subject to the requirements of this LDC. A plat and deed depicting the combined lots shall be recorded with the clerk of court. An exception to this subsection (c) is as follows: any individual lot that does not meet the area requirements of the district in which it is located upon adoption of this LDC may be utilized if it meets the minimum lot size required by the department of health; however, all other requirements of the zoning district shall be met.

(d)

No lot, even though it may consist of one or more adjacent lots of record, shall be reduced in size so that the lot frontage or depth; front, side or rear yard; lot area; or other requirements of the LDC, are not maintained. This requirement shall not apply when a portion of a lot is required for public purposes.

(e)

Allowed modification of setback requirements. When a building is proposed on a lot and when on either or both lots which adjoin such lot at the street right-of-way line there exists a principal building which does not conform to the setback requirements of the LDC, the required setback for such building shall be as follows:

(1)

Where only one said adjoining lot contains a principal building with a nonconforming setback, the setback shall be the computed average of the normal setback requirement and the nonconforming setback, or

(2)

Where both adjoining lots contain a principal building each with a nonconforming setback, the minimum setback shall be the computed average of the two nonconforming setbacks.

(Ord. No. 18-01, §§ 1, 2, 9-11-2018)

A lawfully established structure that becomes nonconforming at the time of adoption of the LDC may continue subject to the following requirements:

(a)

Any existing use of a nonconforming structure may be changed to another use upon the finding by the building official that the proposed use:

(1)

Is similar in its operation and effect on surrounding properties;

(2)

Will not generate more automobile or truck traffic, create more noise, vibration, smoke, dust or fumes, is not a more intensive use of structures than the existing use, and is not in any way a greater nuisance to the adjoining properties than the existing; and

(3)

Will not have a negative impact on the public health, safety, and welfare.

(b)

The nonconforming structure shall not be enlarged.

(c)

The structure or portion thereof may be altered to decrease its degree of nonconformity.

(d)

If a nonconforming structure is moved for any reason for any distance, it shall be brought into conformance with the site design standards of the zoning district to which it is moved.

(e)

When any use of a nonconforming structure is discontinued for a continuous period in excess of 12 months, any future use of the structure is permissible only when the structure has been brought into compliance with the provisions of the LDC.

(f)

If a building or structure that is conforming as to use but nonconforming as to required building setbacks, performance standards, and applicable supplementary regulations, the building or structure may be enlarged or added to, provided that the addition or enlargement fully complies with all applicable requirements.

(g)

On any nonconforming structure or portion of a structure containing a nonconforming use, work may be done in any period of 12 consecutive months on ordinary repairs, or on repair or replacement of nonbearing walls, fixtures, wiring or plumbing, to an extent not exceeding ten percent of the current replacement cost of the nonconforming structure or nonconforming position of the structure provided the total floor area existing when it became nonconforming shall not be increased.

(Ord. No. 18-01, §§ 1, 2, 9-11-2018)

A lawfully established use of structures or open land that becomes nonconforming at the time of adoption of the LDC may continue subject to the following requirements:

(a)

A structure containing a nonconforming use shall not be enlarged, extended, constructed, reconstructed, moved, or structurally altered except to change the use to a use permitted in the zoning district in which it is located.

(b)

A nonconforming use of a structure shall not be extended to occupy any land outside the existing structure devoted to the use. Any nonconforming use of a structure may be extended throughout any parts of a building which were manifestly arranged or designed for such use at the time of adoption or amendment of the LDC.

(c)

A nonconforming use of a structure or open land which is superseded by a permitted use shall not thereafter be resumed.

(d)

Discontinuance of use.

(1)

After a nonconforming use shall have been discontinued for a period of one year, it shall not be reestablished or changed to any use except a conforming use.

(2)

No nonconforming use may be discontinued for any period and changed to any other type of nonconforming use.

(3)

Electrical service to a mobile home which does not meet HUD housing regulations may not be permitted or reconnected after an interruption of service for a period exceeding 12 months.

(e)

A nonconforming use of open land shall meet the following standards:

(1)

There shall be no expansion of the quantity of land devoted to the nonconforming use;

(2)

There shall be no expansion of the activity on the land to occupy a greater amount of land within the nonconforming parcel; and

(3)

No structure shall be established, installed, erected, or constructed so long as the nonconforming use exists.

(Ord. No. 18-01, §§ 1, 2, 9-11-2018)

(a)

Findings. It is found and declared that in the county there is the existence or occupancy of dwellings or other buildings or structures which are unfit for human habitation or for commercial, industrial or business occupancy or use and are dangerous and injurious to the health, safety and welfare of the people of this county; and that a public necessity exists for the repair, closing or demolition of such dwellings, buildings or structures.

(b)

Adoption of state law; designation of code enforcement officer.

(1)

O.C.G.A. §§ 41-1-1 through 41-2-16 of that title known as "Nuisances" are hereby adopted as the public nuisance ordinance of the county. The O.C.G.A. sections shall be a part of this section as fully as if quoted verbatim herein.

(2)

The board designee shall serve as the county public nuisance officer as contemplated by the above-referenced O.C.G.A. sections. Such public nuisance officer shall serve at the pleasure of the board of commissioners.

(c)

Complaints; investigation; notice of hearing. Whenever a written request is filed with the public nuisance officer (hereinafter referred to as "the officer") by a public authority, or by at least two residents of the unincorporated area of the county, charging that any dwelling, building or structure in such area is unfit for human habitation or for commercial, industrial or business use or whenever it appears to the officer (on his own motion) that any dwelling, building or structure is unfit for human habitation or is unfit for its current commercial, industrial or business use or is vacant, dilapidated and being used in connection with the commission of drug crimes, the officer shall, if his preliminary investigation discloses a basis for such charges, issue and cause to be served upon the owner of and any parties in interest in such dwelling, building or structure a complaint stating the charges in that respect and containing a notice that a hearing will be held before the officer (or his designated agent) at a place within the county, fixed not less than ten days nor more than 30 days after the serving of the complaint; that the owner and any parties in interest shall be given the right to file an answer to the complaint and to appear in person or otherwise, and give testimony at the place and time fixed in the complaint; and that the rules of evidence prevailing in courts of law or equity shall not be controlling in hearings before the officer.

(d)

Determination after hearing; issuance of order. If after notice and hearing pursuant to this section the officer determines that the dwelling, building or structure under consideration is unfit for human habitation or is unfit for its current commercial, industrial or business use or is vacant, dilapidated and being used in connection with the commission of drug crimes, he shall state in writing his findings of fact in support of such determination and shall issue and cause to be served upon the owner thereof an order:

(1)

If the repair, alteration or improvement of the dwelling, building or structure can be made at a reasonable cost in relation to the value of the dwelling, building or structure, requiring the owner or parties in interest, within the time specified in the order, to repair, alter or improve such dwelling, building or structure so as to render it fit for human habitation or for current commercial, industrial or business use or to vacate and close the dwelling, building or structure as a human habitation; or

(2)

If the repair, alteration or improvement of the dwelling, building or structure cannot be made at a reasonable cost in relation to the value of the dwelling, building or structure, requiring the owner or parties in interest, within the time specified in the order, to remove or demolish such dwelling, building or structure.

(e)

Basis for requiring removal, demolition of nuisance structure. In no event shall the board of commissioners require the removal or demolition of any dwelling, building or structure except upon a finding that the cost of repair, alteration or improvement thereof exceeds 60 percent of the value of such dwelling, building or structure will have when repaired to satisfy the minimum requirements of this section.

(f)

Failure of owner to comply with order; duties of officer, placarding of structure. If the owner or parties in interest fail to comply with an order issued under this section to vacate and close or demolish the nuisance dwelling, building or structure, the officer may cause such dwelling, building or structure to be repaired, altered or improved or to be vacated and closed or demolished; and the officer may cause to be posted on the main entrance of any building, dwelling or structure so closed a placard with the following words: "This building is unfit for human habitation or commercial, industrial or business use; the use or occupation of this building for human habitation or for commercial, industrial or business use is prohibited and unlawful."

(g)

Ordinance authorizing abatement action. If the owner fails to comply with any order to remove or demolish the dwelling, building or structure, the officer may cause such dwelling, building or structure to be removed or demolished; provided, however, that the duties of the officer set forth in the LDC and in O.C.G.A. § 41-2-9(b)(4) and (5) shall not be exercised until the board of commissioners has by ordinance ordered the officer to proceed to effectuate the purpose of O.C.G.A. §§ 41-2-7 through 41-2-17 with respect to the particular property or properties which the officer has found to be unfit for human habitation or unfit for its current commercial, industrial or business use, which property or properties shall be described in the ordinance.

(h)

Creation of lien; sale of property, use of funds.

(1)

The amount of the cost of vacating and closing or removal or demolition by the officer pursuant to this section shall be a lien against the real property upon which such cost was incurred.

(2)

The lien shall attach to the real property upon the payment of all costs of demolition by the county and the filing of an itemized statement of the total sum of the costs by the officer in the office of the clerk of the superior court for the county and in the office of the clerk of the board of commissioners on a lien docket maintained by the clerks for such purposes.

(3)

If the dwelling, building or structure is removed or demolished by the officer he shall sell the materials of such dwellings, buildings or structures and shall credit the proceeds of such sale against the cost of the removal or demolition and any balance remaining shall be deposited in the superior court by the officer, shall be secured in such manner as may be directed by such court, and shall be disbursed by such court to the persons found to be entitled thereto by final order or decree of such court.

(i)

Enforcement of collection of amount due. The board of commissioners may enforce the collection of any amount due on a lien for removal or demolition of dwellings, buildings or structures only in the following manner:

(1)

The owner or parties at interest shall be allowed to satisfy the amount due on such lien by paying to the county, within 30 days after the perfection of the lien, a sum of money equal to 25 percent of the total amount due and by further paying to the county the remaining balance due on such lien, together with interest at the rate of seven percent per annum, in three equal annual payments, each of which shall become due and payable on the anniversary date of the initial payment made as hereinabove prescribed.

(2)

Should the property upon which such lien is perfected be sold, transferred or conveyed by the owner or parties at interest at any time prior to the termination of the three-year period, the entire balance due on such lien shall be due and payable to the county.

(3)

Should the amount due on such lien or any portion thereof be unpaid after the passage of the three-year period, or upon the occurrence of the contingency provided for in subsection (2) above, the county may enforce the collection of any amount due on such lien for alteration, repair, removal or demolition of dwellings, buildings or structures in the same manner as provided in O.C.G.A. § 48-5-358 and other applicable state statutes. This procedure shall be subject to the right of redemption by any person having any right, title or interest in or lien upon the property, all as provided by Article 3 (§ 48-4-40 et seq.) of Chapter 4 of O.C.G.A. Tit. 48.

(j)

Physical conditions constituting nuisance. The officer may determine that a dwelling, building or structure is unfit for human habitation or is unfit for its current commercial, industrial or business use if he finds that conditions exist in such building, dwelling or structure which are dangerous or injurious to the health, safety or morals of the occupants of such dwelling, building or structure; of the occupants of neighborhood dwellings, buildings or structures; or of other residents of the county. Such conditions may include the following (without limiting the generality of the foregoing):

(1)

Defects therein increasing the hazards of fire, accidents or other calamities;

(2)

Lack of adequate ventilation, light or sanitary facilities;

(3)

Dilapidation;

(4)

Disrepair;

(5)

Unsafe;

(6)

Structural defects; and

(7)

Uncleanliness.

(k)

Use of structure in connection with drug crimes deemed nuisance. The officer may determine, under existing ordinances, that a dwelling, building or structure is vacant, dilapidated, unsafe and being used in connection with the commission of drug crimes upon personal observation or report of a law enforcement agency and evidence of drug crimes being committed.

(l)

Powers of officer. The officer shall have all powers of investigation, examination, appointment and delegation, etc., as set out in O.C.G.A. § 41-2-11.

(m)

Enforcement. The county ordinance officer shall be authorized, empowered, and directed to enforce compliance with all provisions of this section in the unincorporated areas of the county, and on or in county-owned or operated facilities or property, in accordance with all applicable laws of the state.

(Ord. No. 18-01, §§ 1, 2, 9-11-2018)

The planning commission shall hear and decide all appeals and requests for variances from the requirements of this LDC as specified in article IX, section 26-9.03.00.

(Ord. No. 18-01, §§ 1, 2, 9-11-2018)

The building official is authorized to reduce specific site design and development standards of the LDC where the intent of the LDC can be achieved and equal performance obtained by granting a waiver of standards. The authority to grant a waiver shall be limited to the following:

(a)

A reduction in the minimum front, side, or rear yard setbacks for a single lot, provided the following standards are met:

(1)

The reduction is necessary in order to implement landscaping, buffer, and tree protection standards of the LDC; and

(2)

The reduction is limited to a maximum of 20 percent of the minimum standard.

(b)

A reduction in the parking requirement, provided the following standards are met:

(1)

The reduction is necessary in order to implement landscaping, buffer, and tree protection standards of the LDC; and

(2)

The reduction is limited to either one space or ten percent of the parking requirement, whichever is more; and

(3)

The reduction does not limit the availability or location of required handicapped parking.

(c)

A reduction in landscaping or buffer requirements, provided the following standards are met:

(1)

The reduction is necessary due to particular physical conditions of the property, such as the shape of the lot, topography, presence of bodies of water, or other natural features;

(2)

The reduction is limited to 20 percent of the otherwise required width of the buffer; and

(3)

The reduction is limited to 20 percent of the otherwise required plant materials.

(d)

In addition to the standards identified in subsections (a), (b) and (c) above, the building official shall also review proposed waivers to ensure the proposal, if granted:

(1)

Would not cause substantial detriment to the public good; and

(2)

Would comply with all fire safety, utility and environmental health requirements; and

(3)

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

(4)

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

(Ord. No. 18-01, §§ 1, 2, 9-11-2018)

(a)

An application for an administrative waiver shall include such descriptions, maps or drawings as needed to clearly illustrate or explain the action requested, and such filing fees as may be required. The building official may request such additional information from the appellant as necessary to provide a full understanding of the appellant's request.

(b)

The building official shall render a final decision on any application within 15 days receive of a complete application for an administrative waiver.

(c)

Any administrative waiver approval shall be made in writing to the applicant and also by made a part of the department's records.

(d)

Upon the building official's denial of any application, the applicant shall have the right to appeal such denial in accordance with the appeals process in article IX.

(Ord. No. 18-01, §§ 1, 2, 9-11-2018)