Cumming City Zoning Code

    An appeal stays all proceedings in furtherance of the action appealed from, unless the administrative official from whom the appeal is taken certifies to the Board, after the notice of appeal is filed with said official, that by reason of facts stated in the certificate, a stay would, in his/her opinion, cause imminent peril to life and property. In such cases, proceedings shall not be stayed other than by a restraining order which may be granted by the Board or by a court of record on application, on notice to the administrative official from whom the appeal is taken and on due cause shown.

   1.   Administrative Review. To hear and decide appeals where it is alleged there is error in order, requirement, decision or determination made by the administrative official in the enforcement of these regulations.

   2.   Special Exceptions; Conditions Governing Applications and Procedures. To hear and decide only such special exceptions as the Board is specifically authorized to pass on by the terms of these regulations, to decide such questions as are involved in determining whether special exceptions should be granted, to grant special exceptions with such restrictions and conditions as are appropriate under these regulations, and to deny special exceptions when not in harmony with the purpose and intent of these regulations. A special exception shall not be granted by the Board unless and until the following requirements are satisfied:

      A.   Application and Hearing Procedures. The following procedures shall apply to all requests for special exceptions before the Board:

         (1)   A written application for a special exception must be submitted indicating the section of this chapter under which the special exception is sought and stating the grounds upon which it is requested.

         (2)   Notice shall be given at least seven days in advance of a public hearing on the application by posting notice in a conspicuous place at Cumming City Hall.

         (3)   The public hearing shall be held. Any party may appear and participate at the public hearing, either in person or by agent or attorney.

         (4)   In granting any application for a special exception, the Board shall set forth its decision in writing, and the written decision shall contain findings that the Board is empowered under the applicable section of this chapter to grant the special exception and that the granting of the special exception will not adversely affect the public interest.

         (5)   A $100.00 non-refundable application fee shall accompany each application.

      B.   Conditions to Authorization. In granting any special exception, the Board may prescribe such restrictions and conditions with respect to the permitted use as the Board deems reasonable to further the objectives of these regulations. Violations of such restrictions and conditions, when made a part of the terms under which the special exception is granted, shall be deemed a violation of these regulations. Except as specifically provided in a decision by the Board to grant a special exception, the permitted use shall conform to all applicable regulations of the district or districts in which it is located.

      C.   Time Limitations. The Board may prescribe a time limit within which the action for which the special exception is required to commence or terminate, or both. Failure to commence or terminate, or both, such action within the prescribed time limit set shall void the special exception.

      D.   Reversion. If the use authorized under an approved special exception is not initiated within one year of approval of the special exception, or if the use authorized under an approved special exception is discontinued or abandoned for a continuous period of one year, then the right to maintain or continue the special exception shall terminate by operation of law without any further action by the Board.

      E.   Practical Difficulties. Provided all of the foregoing requirements of the subsection A are satisfied, the Board shall have the power to authorize, in any zoning district, exceptions to any setback area, length, width, height, yard, size or projection limitations or to the minimum required number of off-street parking or loading spaces; provided such an exception may be granted only where:

         (1)   Such exception does not exceed 50 percent of the particular limitation or number in question; or such exception is from a yard requirement to permit an addition to an existing legal nonconforming building, and such addition extends no further into the required yard than the existing building.

         (2)   The exception relates entirely to a use classified by applicable district regulations as either a principal permitted use, a permitted accessory use, a permitted sign, or to off-street parking or loading areas accessory to such a permitted use.

         (3)   The exception is reasonably necessary due to practical difficulties related to the land in question that prohibit the use of the subject property in a manner reasonably similar to that of other property in the same district, including, but not limited to, exceptional narrowness, shallowness or shape of the subject property, exceptional topographical conditions, location of public utilities or public improvements on or adjacent to the subject property, or other extraordinary or exceptional situation.

         (4)   Such practical difficulties cannot be overcome by any feasible alternative means other than an exception.

         (5)   The exception is in harmony with the essential character of the neighborhood of the land in question.

   3.   Variances; Conditions Governing Applications and Procedures. To hear and decide requests for variances under the terms of these regulations, to decide such questions as are involved in determining whether variances should be granted, to grant variances with such restrictions and conditions as are appropriate under these regulations, and to deny variances when not in harmony with the purpose and intent of these regulations. A variance shall not be granted by the Board unless and until the following requirements are satisfied:

      A.   Application and Hearing Procedures. The following procedures shall apply to all requests for variances before the Board:

         (1)   A written application for a variance must be submitted stating the grounds upon which it is requested.

         (2)   Notice shall be given at least seven days in advance of a public hearing on the application by posting notice in a conspicuous place at Cumming City Hall.

         (3)   The public hearing shall be held. Any party may appear and participate at the public hearing, either in person or by agent or attorney.

         (4)   In granting any application for a variance, the Board shall set forth its decision in writing, and the written decision shall contain findings of fact in support of the decision.

         (5)   A $100.00 non-refundable application fee shall accompany each application.

      B.   Required Findings. The Board may grant a variance from the terms of these regulations only if the Board determines that the applicant has established that the subject property was acquired in good faith and where by reason of exceptional narrowness, shallowness or shape of the property, or where by reason of exceptional topographical conditions or other extraordinary or exceptional situation, the strict application of the terms of these regulations actually prohibits the use of the subject property in a manner reasonably similar to that of other property in the same district, and where the Board is satisfied under the evidence before it that a literal enforcement of the provisions of these regulations would result in unnecessary hardship, and so that the spirit of these regulations shall be observed and substantial justice done. To establish unnecessary hardship, a property owner must show all of the following elements:

         (1)   The land in question cannot yield a reasonable return from any use permitted by the regulations of the district in which the land is located. Failure to yield a reasonable return may only be shown by proof that the owner has been deprived of all beneficial or productive use of land in question. It is not sufficient merely to show that the value of the land has been depreciated by the regulations or that a variance would permit the owner to maintain a more profitable use.

         (2)   The plight of the owner is due to unique circumstances not of the owner’s own making, which unique circumstances must relate specifically to the land in question and to general conditions in the neighborhood.

         (3)   The use to be authorized by the variance will not alter the essential character of the locality of the land in question.

      C.   Conditions to Authorization. In granting any variance, the Board may prescribe such restrictions and conditions with respect to the permitted use as the Board deems reasonable to further the objectives of these regulations. Violations of such restrictions and conditions, when made a part of the terms under which the variance is granted, shall be deemed a violation of these regulations. Except as specifically provided in a decision by the Board to grant a variance, the permitted use shall conform to all applicable regulations of the district or districts in which it is located.

      D.   Reversion. If the use authorized under an approved variance is not initiated within one year of approval of the variance, or if the use authorized under an approved variance is discontinued or abandoned for a continuous period of one year, then the right to maintain or continue the variance shall terminate by operation of law without any further action by the Board.