The purpose of this article it to identify the duties, responsibilities, powers and proceedings of the board of zoning adjustment as authorized under the State Code of Alabama. This article is also intended to identify and clarify the processes associated with making application to the board of zoning adjustment.

(Ord. No. 2015-336, § 1, 12-1-15)

(a)

The board of zoning adjustment, as heretofore provided for in section 23-30 of the 1977 Code of Ordinances is provided for as follows: pursuant to and under the authority of the 1975 State Code of Alabama, § 11-52-80, and Alabama Act No. 97-673, a board of zoning adjustment is hereby created. The appointment, procedure, powers and actions of the board shall be governed and controlled by the above cited State Code of Alabama and Alabama Act No. 97-673.

(b)

The board of zoning adjustment shall, in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to the terms of the ordinance in harmony with its general purposes and interests and in accordance with general or specific rules therein contained.

(c)

The board of zoning adjustment shall consist of seven members, each to be appointed for a term of three years, except that in the first instance, four members shall be appointed for a term of three years and three members for a term of two years, and thereafter each member appointed shall serve for a term of three years or until a successor is duly appointed; provided all members of the board, including any alternate member shall be bona fide residents and qualified electors of the city; provided further, that the six regular members appointed by the commissioners shall represent equally the six districts of the city together with the at-large member appointed by the mayor.

(d)

In addition to the seven regular members, two supernumerary members shall be appointed to serve on such board at the call of the chairman only in the absence of regular members and while so serving shall have and exercise the power and authority of regular members. Such supernumerary members shall be appointed to serve for three-year terms and shall be eligible for reappointment. Appointed members may be removable for cause by the appointing authority upon written charges and after public hearing. Vacancies shall be filled for the unexpired term of any member whose term becomes vacant.

(e)

In exercising the powers in Code of Ala. 1975, § 11-52-80(d), the board may reverse, affirm, or may modify the order, requirement, decision, or determination appealed from and may enter the appropriate order, requirement, decision or determination and, to that end, shall have all the powers of the officer from whom the appeal is taken. The concurring vote of five members of the board shall be necessary to reverse any order, requirement, decision or determination of an administrative official or to decide in favor of the applicant on a matter upon which the board is required to pass under any ordinance or to effect any variation in the ordinance.

(f)

Applications for initial appeals, requests for a special exception or requests for a variance shall be accompanied by cash or check made out to the City of Dothan in the amount of $35.00. This application fee shall be nonrefundable.

(Ord. No. 2015-336, § 1, 12-1-15)

State of Alabama law on the proceedings of the board of zoning adjustment reads as follows:

(1)

The board of zoning adjustment shall adopt rules necessary to the conduct of its affairs, and in keeping with the provisions of this chapter. Meetings shall be held at the call of the chairman and at such other times as the board may determine. The chairman, or in their absence, the acting chairman, may administer oaths and compel the attendance of witnesses. All meetings shall be open to the public.

(2)

The board of zoning adjustment 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 a public record and be immediately filed in the office of the board.

(Ord. No. 2015-336, § 1, 12-1-15)

State of Alabama law on the powers and duties of the board of zoning adjustment reads as follows:

(1)

To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of this article or of any ordinance adopted pursuant to this article;

(2)

To hear and decide special exceptions to the terms of the ordinance upon which such board is required to pass under such ordinance; and

(3)

To authorize upon appeal in specific cases such variance from the terms of the ordinance not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship and so that the spirit of the ordinance shall be observed and substantial justice done.

(Ord. No. 2015-336, § 1, 12-1-15)

State Law reference— Abatement of nuisances generally, Code of Ala. 1975, §§ 11-47-117, 11-47-118.

Powers of the board of zoning adjustment as further defined in Code of Ala. 1975, § 11-52-80 et seq., as amended, are adopted by reference in this section as if fully set forth.

(Ord. No. 2015-336, § 1, 12-1-15)

(a)

Application required. To request a special exception and/or variance, an applicant shall complete appropriate forms provided by the administrative official, along with material required to ensure compliance with the review criteria below. Refer to the board of zoning adjustment's bylaws for more specific information.

(b)

Fee required. Applications for special exception and/or variance requests shall be accompanied by cash or check made out to the City of Dothan in the amount of $35.00. This application fee shall be nonrefundable.

(c)

Notice required. For purposes of providing information concerning applications for special exception and/or variance requests, the board shall also cause the following notice to be given:

(1)

Advertisement. The board shall give public notice of hearing upon each application by publication in a newspaper of general circulation within the City of Dothan; such notice shall be given seven calendar days in advance of the time set for the hearing. Such notice shall state the location and address of the property and the general nature of the question involved. The foregoing shall constitute legal notice in all respects as provided by law. Provision of further notice by the board shall be informative but not jurisdictional.

(2)

Direct mail. Written notices shall be mailed by the secretary of the board to the applicant and to the owners of abutting property and that directly across the street from the applicant's site by first class mail. The names and addresses of these property owners shall be furnished by the applicant with their application to the board and shall be those contained in the records of the appropriate county tax assessor's office. Written notice shall be given at least ten calendar days in advance of the hearing and shall contain the time and place of the hearing.

(d)

Action by board of zoning adjustment. The board of zoning adjustment shall hold a public hearing on the special exception and/or variance request, and, at the close of the public hearing act to approve, approve with conditions, continue, table or deny the application based on the review criteria established in this article.

(Ord. No. 2015-336, § 1, 12-1-15; Ord. No. 2025-278, § 1, 10-20-25)

(a)

Review criteria. A variance may be granted by the board of zoning adjustment upon an affirmative finding that all of the following conditions exist:

(1)

The requested variance arises from conditions that are unique to the subject property, that are not ordinarily found in the same zoning district and that are not a result of the owner's intentional action;

(2)

The granting of the permit for the variance will not adversely affect the rights of adjacent property owners or residents;

(3)

The strict application of the applicable standards will constitute an unnecessary physical hardship (not economic hardship) or practical difficulty because the property cannot be used for an otherwise allowed use without coming into conflict with applicable site development standards.

(4)

The variance is the minimum action necessary to alleviate the hardship or practical difficulty and observes the spirit of this chapter; and

(5)

The variance desired will not adversely affect the public health, safety or general welfare or impair the purposes or intent of this chapter or the long range development plan.

(b)

Findings of fact. Before the board of zoning adjustment shall grant a variance it shall make the following three findings of fact which shall be recorded in the permanent record of the case, and shall include the factual reasons on which they are based:

(1)

That there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of this chapter. In order to determine that there are practical difficulties or unnecessary hardships, the board must find that the following five conditions exist:

a.

If the provisions of this chapter are complied with, a variance will only be granted if the applicant can secure no reasonable return from, nor make reasonable use of, the property. Merely proving that the variance would permit a greater profit to be made from the property will not be considered adequate to justify the granting of a variance. Moreover, the board of zoning adjustment shall consider whether the variance is the minimum possible deviation from the terms of this chapter that will make possible the reasonable use of the property.

b.

That the hardship results from the application of this chapter to the property rather than from other factors such as deed restrictions, personal actions, personal circumstances or other hardship.

c.

That the hardship is due to the physical nature of the applicant's property, such as its size, shape, or topography, which is different from that of neighboring property.

d.

That the hardship is not the result of the actions of an applicant who knowingly or unknowingly violates this chapter, or who purchases the property after the effective date of this chapter and then comes to the board for relief.

e.

That the hardship is peculiar to the applicant's property, rather than the result of conditions that are widespread or common to adjoining owners or the general public. If the properties were equally subject to the hardship created in the restriction, then granting a variance would be a special privilege denied to others, and would not promote equal justice.

(2)

The variance is in harmony with the general purpose and intent of this chapter and preserves its spirit.

(3)

In the granting of the variance, the public safety and welfare have been assured and substantial justice has been done. The board shall not grant a variance if it finds that doing so would in any respect impair the public health, safety, or general welfare.

(c)

Conditions. In granting the variance, the board may attach thereto such conditions regarding the location, character, and other features of the proposed building and/or structure as it may deem advisable in furtherance of the purpose of this chapter. If a variance for the construction or alteration is granted, such construction or alteration shall be in accordance with the approved site plan.

(1)

A variance, issued in accordance with this article, shall expire if a building permit, business license, etc. has not been obtained by the applicant within six months from the date of the decision.

(2)

The board of zoning adjustment shall keep a record of all projects for which it grants a variance.

(3)

If the application calls for the granting of a variance, and if the board of zoning adjustment decides in favor of granting the variance, the secretary to the board shall prepare a record of the hearing with all deliberations. The record of the hearing shall include:

a.

The variance application;

b.

Copy of hearing notices;

c.

Copy of evidence presented;

d.

Motions, offers of proof, objections to evidence, and rulings on them;

e.

Proposed findings of fact with exceptions; and

f.

Copy of meeting minutes, including all conditions proposed to be added to the permit.

(d)

Prohibited. The board of zoning adjustment may not grant use variances, which are variances that have the effect of allowing a use within a specific zoning district that is not allowed by article VII of this chapter. The appropriate procedure for requesting any land use not allowed within a zoning district is rezoning.

(Ord. No. 2015-336, § 1, 12-1-15)

(a)

Applicability. Appeals to the board of zoning adjustment may be taken by any person aggrieved or affected by any zoning-related decision of the administrative officer. The administrative official shall present all of the papers constituting the record upon which the action appealed was taken to the board of zoning adjustment.

(b)

Effect of appeal. An appeal shall "stay" all proceedings in furtherance of the action related to the decision which is being appealed. However, after the notice of appeal, the administrative official certifies to the board of zoning adjustment, 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 other than by a restraining order, which may be granted by the board of zoning adjustment or by a court record on application and notice to the administrative official and on the cause shown.

(c)

Procedure.

(1)

Written request. No application is required to appeal a decision of the administrative official, but the appellant shall provide a letter to the board of zoning adjustment, describing the decision from which the appeal is sought and the specific details of appellant's request. Letters of appeal shall be submitted 14 calendar days prior to the next board of zoning adjustment hearing date. Refer to the board of zoning adjustment's bylaws for more specific information.

(2)

Time. Appeals to the administrative official's decision shall be submitted within 30 calendar days of the decision.

(3)

Fee. Action on an appeal shall constitute a formal request to the board which shall require public notice and shall be accompanied by cash or check made out to the City of Dothan in the amount of $35.00 or as otherwise approved by the board of commissioners. This fee shall be nonrefundable.

(4)

Notice. For purposes of providing information concerning such applications, the board shall also cause the following notice to be given:

a.

Advertisement. The board shall give public notice of hearing upon each appeal by publication in a newspaper of general circulation within the City of Dothan; such notice shall be given seven calendar days in advance of the time set for the hearing. Such notice shall state the location and address of the property and the general nature of the question involved. The foregoing shall constitute legal notice in all respects as provided by law. Provision of further notice by the board shall be informative but not jurisdictional.

b.

Written notice. Written notices shall be mailed by the secretary of the board to the applicant and to the owners of abutting property and directly across the street from the applicant's site by first class mail. The names and addresses of these property owners shall be furnished by the applicant with their notice of appeal to the board and shall be those contained in the records of the appropriate county tax assessor's office. Written notice shall be given at least ten calendar days in advance of the hearing and shall contain the time and place of the hearing.

(d)

Review and action by board of adjustment. The board of zoning adjustment shall hold a public hearing on the appeal request, and, at the close of the public hearing act on the appeal based on the review criteria established in this article.

(1)

In exercising the appeal power, the board of zoning adjustment shall have all the powers of the official from whom the appeal is taken, and the board of zoning adjustment may reverse or affirm wholly or partly or may modify the decision being appealed.

(2)

If the board of zoning adjustment determines that it is necessary to obtain additional evidence in order to resolve the matter, it shall remand the appeal to the official from whom the appeal is taken, with directions to obtain such evidence and to reconsider the decision in light of such evidence.

(3)

A concurring vote of five of the members of the board of zoning adjustment shall be necessary to reverse any order, requirement, decision, or determination of an administrative official.

(4)

Every decision of the board of zoning adjustment shall be accompanied by written findings of fact specifying the reason for the decision. These findings shall be filed in the office of the board of zoning adjustment within ten calendar days after the final action.

(Ord. No. 2015-336, § 1, 12-1-15)

A home occupation is intended to be a use conducted in a residential property, with operations occurring entirely within a dwelling and carried out solely by the inhabitant thereof and which is clearly incidental and secondary to the use of the building and/or structure for dwelling purposes. Because the city recognizes that certain home occupations have greater land use impacts than others, this section is designed to establish two types of home occupations. It shall be the applicant's responsibility to clearly explain the scope of the business to ensure the proper regulations are administered.

(a)

Qualifying home occupations are home based businesses that have no outward appearance of business activity, including business identification signage. Examples of qualifying home occupations include (but are not limited to) the following: business office for an otherwise licensed business activity, internet based business, consulting service, etc. No public hearing is required for qualifying home occupation applications, and the administrative official has authority to approve qualifying home occupation applications. Applicants for qualifying home occupations must sign an "affidavit of compliance." The affidavit outlines the minimum requirements listed below. These minimum requirements shall be conditions of approval and must be observed by the applicant. The affidavit shall be signed in the presence of the administrative official (or appointee). Any applicant who refuses to sign the affidavit or is unable to comply with the minimum requirements will be required to apply for a non-qualifying home application. The applicant will not become eligible for the issuance of a privilege license until the affidavit has been approved by the administrative official.

(1)

The privilege license is valid only for this home occupation, this operator at this location;

(2)

This home occupation approval is void if the privilege license is not obtained within 90 days of approval or if the license is allowed to lapse;

(3)

The business operator obtain a five-pound ABC type fire extinguisher (Area covered by fire extinguisher will have 2A3A-30BC designation per National Fire Code-10.);

(4)

Any work conducted in the home (e.g. bookkeeping, etc.) is confined to the principal building and/or structure;

(5)

No more than 25 percent of the home is used for the business;

(6)

Only residents of the home will engage in business activity at the home;

(7)

There are no customers at the home;

(8)

Accessory buildings and/or structures may not be used for home occupations;

(9)

Any business-related equipment or materials are kept inside the home;

(10)

No employees or employee vehicles are allowed at the home;

(11)

No business-related vehicles are parked at the home;

(12)

If business-related materials or equipment are delivered to the home, there will be no more than two deliveries per week and the delivery vehicle shall have no more than a single axle with six wheels;

(13)

There are no signs or advertisements on the property, including on the mailbox;

(14)

The business operator is responsible for observing any private covenants which may impact the home occupation;

(15)

Any other restriction as may be considered appropriate by the administrative official or the board of zoning adjustment; and

(16)

Violation of any of the aforementioned conditions could result in revocation of the approval.

(b)

Non-qualifying home occupations are home based businesses that exhibit any outward (visible) signs of business activity, including (but not limited to) the following: lawn care business, contractor, home maintenance business, etc. Upon receipt of such application, a written notice shall be sent to all adjacent property owners specifying the proposed use, the address, and the name of the applicant. The notice shall state that approval shall be granted unless an objection is received within five days of its mailing. If an objection is received within five days of notice, the request shall be considered a special exception and shall be subject to board of zoning adjustment approval as outlined in this article. Unless expressly omitted by the board of zoning adjustment, the restrictions listed below shall be considered conditions of approval. However, the board of zoning adjustment may add additional conditions of approval should conditions warrant. It shall be the applicant's responsibility to clearly explain the scope of the business to ensure the proper restrictions are approved and/or omitted by the board of zoning adjustment.

(1)

The special exception is valid only for the applicant, this home occupation and this location;

(2)

The special exception is void if a privilege license, issued by the City of Dothan, is not obtained within 90 days of approval and subsequently if the license is allowed to lapse;

(3)

The applicant shall obtain a five-pound ABC type fire extinguisher (Area covered by fire extinguisher will have 2A3A-30BC designation per National Fire Code-10.);

(4)

No more than 25 percent of the home shall be used for the business;

(5)

There shall be no noise, odors or vibrations associated with the business;

(6)

No employees or employee vehicles are allowed at the home;

(7)

Only residents of the home are authorized to engage in business activity at the home;

(8)

There shall be no customers at the home;

(9)

All work-related activities must be conducted inside the home;

(10)

No accessory building shall be used in conjunction with the business;

(11)

The applicant is allowed to have one business-related vehicle parked on the property, but it shall be no larger than a pickup truck or passenger van;

(12)

No business-related vehicle may be parked in the street;

(13)

Lawn care equipment and/or any trailer used to transport the equipment are shielded from the view of the street and adjacent properties;

(14)

No business-related equipment or materials shall be visible from the road or from adjoining properties and shall be stored inside either the single vehicle or inside the home;

(15)

Used and/or left over materials shall not be taken to the property.

(16)

If business-related materials or equipment are delivered to the home, there shall be no more than two deliveries per week, and the delivery vehicle shall have no more than a single axle with six wheels;

(17)

There shall be no signs or advertisements at the home, including on the mailbox;

(18)

Applicant is responsible for observing any private covenants which may impact the proposed home occupation;

(19)

Any other restriction as may be considered appropriate by the administrative official or the board of zoning adjustment; and

(20)

Violation of any of the aforementioned conditions could result in revocation of the approval.

(Ord. No. 2015-336, § 1, 12-1-15; Ord. No. 2020-230, § 1, 9-1-20)

Violations of these regulations requiring a variance of ten percent or less of the dimensional regulations of the district may be issued upon request by a "letter of de minimis" from the administrative official. Letters of de minimis are not variances and do not legitimize any encroachment that may exist. A letter of de minimis may not be requested for encroachments exceeding 12 inches. Any alteration of the premises that results in an increase in the extent of the violation and any subsequent or additional and separate violation shall void this letter of de minimis and shall be subject to appropriate action.

(Ord. No. 2015-336, § 1, 12-1-15)

Refer to the State Code of Ala. 11-52-81, which states: "Any party aggrieved by any final judgment or decision of such board of zoning adjustment may within 15 calendar days thereafter appeal therefrom to the circuit court by filing with such board a written notice of appeal specifying the judgment or decision from which the appeal is taken. In case of such appeal such board shall cause a transcript of the proceedings in the action to be certified to the court to which the appeal is taken, and the action in such court shall be tried de novo."

(Ord. No. 2015-336, § 1, 12-1-15)

Note— Acts 1935, No. 533, p. 1121; Code 1940, T. 37, § 783.