21.1.1.

The board of zoning appeals, also referred to as the board of appeals, was established by previous version of this chapter, and remains authorized under this chapter. Existing board members shall continue in their current terms unaffected by the adoption of this chapter. The board consists of seven (7) members appointed by the mayor and city council for staggered terms of four (4) years; except the mayor's appointee, who has a two-year term. Each successive appointment shall be for staggered terms of four (4) years; except the mayor's appointee, who has a two-year term.

21.1.2.

Each board member shall receive compensation for his/her service as established by the mayor and city council and shall 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 mayor and city council 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 chapter. After expiration of their term, members shall continue to serve until, either reappointed or a successor appointed by the mayor and city council.

21.1.3.

A quorum of the board of zoning appeals shall consist of four (4) members.

21.1.4.

Members shall be removed for cause by the mayor and city council upon written charges and after a public hearing; provided, however, that any member who fails to attend three (3) consecutive meetings, without cause, may be removed without a public hearing. Members shall continue to serve after the expiration of their term, until their successor has been appointed, or themselves reappointed.

21.1.5.

The board of zoning appeals, for zoning decisions and variances, is considered a quasi-judicial board as defined by O.C.G.A. § 36-66-3(1.1).

(Ord. No. 20-23, § 1, 5-4-23; Ord. No. 38-23, § 1, 7-6-23)

Editor's note— Ord. No. 38-23, § 1, adopted July 6, 2023, set out provisions intended for use as § 21.1.4. Inasmuch as there were already provisions so designated, said section has been codified herein as § 21.1.5 at the discretion of the editor.

21.2.1.

The board of appeals shall elect a chair and a vice chair from its members who shall serve for one (1) year or until reelected or until their successors are elected. The board shall appoint a secretary, who shall be the city clerk and the deputy city clerk shall serve as the alternate. In the event that neither is available, the board of appeals may appoint a city employee or a member of the board to serve in said capacity. The board shall adopt such rules and bylaws as they deem appropriate. The board shall meet every month or on such schedule as it chooses to adopt, providing there are matters to consider. If there are no agenda items, the regularly scheduled meeting may be cancelled by the chair.

21.2.2.

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

21.2.3.

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.

21.2.4.

All meetings of the board of appeals shall be open to the public.

21.2.5.

For each variance to the chapter, a separate public hearing shall be required.

(Ord. No. 39-23, § 1, 7-6-23)

The board of zoning appeals shall have the following powers and duties:

21.3.1.

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 chapter. Appeals to the board of appeals may be taken by any person aggrieved or by any officer, department, board, or agency of the City of Cartersville 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 (10) business days of the hearing on the appeal.

21.3.2.

Continuance of a nonconforming use. The board of zoning appeals may allow a nonconforming use to be reestablished after discontinuance for twelve (12) consecutive months. The procedure for the request shall be the same as if it was a variance. If it is deemed by the board of zoning appeals that one (1) or more of the following apply, the board may grant said request.

A.

The design, construction, and character of the building is not suitable for uses permitted in the district in which the nonconforming use is situated; and

B.

Undue hardships to the property owner would result in not allowing the building to be reopened for a nonconforming use; and

C.

Adjacent property would not be unduly damaged by such use of the building; and

D.

The use is to be identical or similar to the prior nonconforming use of the building.

21.3.3.

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

A.

That one (1) of the following is true, through no action or fault of the property owner or predecessor:

1.

The property is exceptionally narrow, shallow or unusually shaped;

2.

The property contains exceptional topographic conditions;

3.

The property contains other extraordinary or exceptional conditions; or

4.

There are existing other extraordinary or exceptional circumstances; and

B.

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

C.

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

Variance decisions shall be issued in writing within ten (10) business days of the hearing.

21.3.4.

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, property, development standards or use as it may deem advisable so that the purpose of this chapter will be served, public safety and welfare secured and substantial justice done.

21.3.5.

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. The applicant shall instead be directed to file for a text amendment. 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. A variance application shall not be accepted if the variance is contradictory to the ordinance.

21.3.6.

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 November 7, 1996. Configuring a subdivision to create lots that are difficult to build is an example of a hardship created by the property owner or predecessor, that does not justify a variance.

21.3.7.

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.

21.3.8.

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 chapter can be made to provide persons with a disability equal opportunities to use and enjoy dwellings, while not abrogating the purposes of this chapter. Any reasonable accommodation should only relate to the disability.

21.4.1.

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 filing requirements for information are mandatory unless the requirement is deleted 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. At a minimum, the application shall include the following:

A.

The subject property location.

B.

A legal survey plat showing the metes and bounds of the tract which metes the zoning district development standards and the access requirements of the City of Cartersville Development Regulations; with the exception as follows:

1.

If the variance is for a development standard for the property's then zoning district or access requirements of the City of Cartersville development regulations, then said variance shall be indicated on the survey as being requested for the variance being applied for.

C.

The zoning classification of the property.

D.

A brief description of the variance request.

E.

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

F.

A list of all current owners of records for properties located immediately adjacent to or directly across a public street or railroad right-of-way from the subject property as indicated on the records of the Bartow County tax assessor's office as of January 1 of the year of the filing of the application.

G.

A letter of appeal stating the hardship or purpose of the appeal.

H.

The signature of the property owner, authorized representative and applicant.

I.

An initiating party shall also file any other information or supporting materials that are required by the board and/or zoning administrator.

21.4.2.

Published notice. Due notice of the public hearings pursuant to this article shall be published in the legal organ of Bartow 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. For variances, 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. The board may require the applicant to re-advertise at the applicant's expense or the board's expense, if a request is tabled.

21.4.3.

Letters to property owner and 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 the owner of property as required by O.C.G.A. § 36-66-4(g) and 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 January 1 of the year the application is filed 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 thirty (30) days prior to the date of said scheduled public hearing. In the event a hearing is tabled, the applicant is required at their expense to resend notices of the new date and time for the hearing.

21.4.4.

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.

F.

The application file number.

21.4.5.

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 an appeal of the decision of the board of appeals, said transcript shall be made part of the record for review.

21.4.6.

Fee. Along with the application, a nonrefundable application fee is to be submitted at the time the application is submitted, pursuant to the fee schedule as adopted by the City of Cartersville at section 17-86 of the Code of Ordinances, City of Cartersville, Georgia. A fee shall not be charged for applications initiated by the zoning staff, mayor and city council or planning commission.

(Ord. No. 40-23, § 1, 7-6-23; Ord. No. 41-23, § 1, 7-6-23)

Stay of proceedings are as provided for in O.C.G.A. § 36-66-5.1(d).

(Ord. No. 42-23, § 1, 7-6-23)

21.6.1.

In exercising its powers, the board of appeals may, in conformity with the provisions of this chapter, reverse or affirm, wholly or partly, table or may modify the variance, appeal, order, requirements, decision, or determination, and to that end shall have all the powers of the zoning administrator.

21.6.2.

The concurring four (4) votes of members 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 chapter or to affect any variation of this chapter.

21.6.3.

The board shall have the power to table incomplete applications, or to seek more time for further information to be submitted. The action by the board to table 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, such as that required by section 21.4.2, is required. The application can be tabled for up to three (3) months at a time to obtain necessary information or for other reasons of the board. The application can be tabled more than once if necessary, extending the duration the application remains on the table.

21.6.4.

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 therefor. Such written decision shall be prepared by the zoning staff or city attorney and signed by the chair and secretary.

21.7.1.

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 city prior to the commencement of the hearing.

21.7.2.

Matter presented. The chair 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 chapter shall be deemed out of order and shall not be considered at that hearing. It shall be tabled until the next meeting, and if it is still out of order at the next meeting, the application shall be deemed denied.

21.7.3.

Speakers. The chair 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.

21.7.4.

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. In the event of multiple speakers on a side, the time shall be divided equally between all registered speakers, who may reserve their remaining balance of time for rebuttal, except that the applicant may use as much of the fifteen (15) minutes as is desired by them. 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.

21.7.5.

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 (1) person to conduct any desired cross-examination.

21.7.6.

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.

The applicant may withdraw their appeal without prejudice prior to a vote by the board of zoning appeals either in writing prior to the hearing or verbally at said hearing.

21.9.1.

Appeal to court. Recourse from a decision of the board of zoning appeals shall be as provided for in O.C.G.A. § 36-66-5.1(a)(1) or (2) as appropriate, or as otherwise provided for by law.

(Ord. No. 43-23, § 1, 7-6-23)

21.10.1.

Certificates. Authority to approve certiorari documents. In order to comply with O.C.G.A. § 36-66-5.1(c), the chairman of the board of zoning appeals, is authorized to issue certiorari bonds and certificate of costs upon and related documents confirmation with city staff, that such approvals are appropriate.

21.10.2.

Authority to accept service.

A.

For purposes of certiorari proceedings, the mayor of the city and/or the chairman of the board of zoning appeals, as appropriate, is authorized to accept service of process on behalf of the city.

B.

The mayor of the city is authorized to accept service of process on behalf of the city as opposite party.

(Ord. No. 44-23, § 1, 7-6-23)

A.

The following standards governing the exercise of the zoning power are adopted in accordance with O.C.G.A. § 36-66-5(b):

1.

The existing land uses and zoning classification of nearby property;

2.

The suitability of the subject property for the zoned purposes;

3.

The relative gain to the public, as compared to the hardship imposed upon the individual property owner;

4.

Whether the subject property has a reasonable economic use as currently zoned;

5.

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

6.

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

7.

Whether the zoning proposal is in conformity with the then current future development plan and community agenda of the comprehensive land use plan as currently adopted or as amended in the future;

8.

Whether the zoning proposal will result in a use which will or could; adversely affect the environment, including, but not limited to, drainage, wetlands, groundwater recharge areas, endangered wildlife habitats, soil erosion and sedimentation, floodplain, air quality, and water quality and quantity;

9.

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; and

10.

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.

B.

Said standards shall be printed and available for distribution to the public at all meetings or the board of zoning appeals, in addition to those listed in section 21.4.

(Ord. No. 45-23, § 1, 7-6-23)