The purpose of this article is to provide mechanisms for obtaining relief from the provisions of this chapter, where hardship would otherwise occur. Two forms of hardship are addressed:

(1)

Addresses hardship that would be caused if nonconforming development were required to immediately come into compliance with this chapter; and

(2)

Addresses the hardship that may be caused in particular cases by the imposition of the chapter's development design standards.

(Code 1993, pt. III, ch. 11, intro.)

Existing land uses or structures which are inconsistent with the character, natural resources, and adopted future development map of the city shall be eliminated upon redevelopment. Historic and archaeological resources as identified in the historic preserva-

tion ordinance are deemed to be consistent with the character of the city, its natural resources and the future development map and are therefore considered to be conforming development. Exceptions may be made if all three of the following conditions are met:

(1)

The existing use or structure is destroyed by accident or act of God;

(2)

Neighboring landowners within a 300-foot radius support the rebuilding to prior state; and

(3)

Such rebuilding does not pose a serious health or safety threat to the public.

(Code 1993, pt. III, ch. 11, § 1)

(a)

Nonconforming lot of record. A legal nonconforming lot of record in any district may be used for development, provided all required setbacks can be met.

(b)

Nonconforming uses.

(1)

A lawful use of a building or land existing on February 28, 2011, may be continued although such use does not conform to the provisions of this chapter, and such use may be extended throughout the building. If such a use is discontinued for a continuous period of not less than six months (180 days), every future use of such building or land shall be in conformance with the provisions of this chapter.

(2)

For the purpose of this article, a use shall be deemed discontinued if all activities related to such use have ceased for a continuous period of not less than six months (180 days). The determination that a used has ceased shall be made by the community development director, who shall consider, among other things, the consumption of utility services at the property, the existence and maintenance of any required business licenses, and advertising to the public of any activities on the property.

(3)

Such nonconforming uses of land, buildings and structures shall not be enlarged, expanded, moved or otherwise altered in any manner except in conformance with this chapter.

(c)

Nonconforming buildings and structures.

(1)

No nonconforming building shall be enlarged, expanded, moved or otherwise altered in any manner except in conformance with this chapter.

(2)

A nonconforming building destroyed by more than 50 percent of its assessed value shall not be reconstructed except in accordance with the provisions of this chapter. A nonconforming building destroyed by a declared natural disaster to less than 50 percent of its assessed value may be reconstructed as originally constructed.

(3)

Nothing in this article shall prevent the strengthening or restoration to a safe condition of any part of any building or structure declared unsafe by the community development director.

(d)

Buildings and structures under construction. To avoid undue hardship, nothing in this chapter shall be deemed to require a change in the plans, construction, or designated use of any building or structure for which a development or building permit was lawfully applied and issued, or a preliminary or final subdivision plat or site plan was approved, prior to the effective date of the ordinance from which this chapter is derived, or amendment hereto, unless:

(1)

Such permit or approval has not on its own terms expired prior to said effective date.

(2)

Actual building construction commenced prior to the expiration of such permit or approval.

(3)

Actual building construction is carried on pursuant to such permit or approval.

(e)

Prior variances. Variances lawfully authorized and granted prior to the effective date of the ordinance from which this chapter is derived shall continue to be utilized provided the terms and conditions of that authorization are followed.

(f)

Reversions and changes.

(1)

Any nonconforming use, structure, building or nonconforming lot of record that is changed to a conforming state shall not be permitted to revert back to a nonconforming situation.

(2)

Any nonconforming use shall not be changed to another nonconforming use.

(Code 1993, pt. III, ch. 11, § 2)

(a)

Authority. The board of appeals may grant a variance from the strict applications of the dimensional requirements of Table 111-129, as well as dimensional requirements as described in article VII of this chapter. Use variances are not eligible under this chapter.

(b)

Applicability. Any person desiring to undertake a development activity not in conformance with this chapter may apply for a variance in conjunction with the application for development review. Such variance must be approved by the board of appeals prior to any further development approvals. In granting the variance, the board of appeals may prescribe appropriate conditions and safeguards.

(c)

Standards for granting variances. The board of appeals shall have the power to authorize, upon application in specific cases, such variances where, in each case, the board made specific findings of fact based directly upon the particular evidence presented supporting the written findings that:

(1)

The variance requested arises from a condition that is unique and peculiar to the land, structures and buildings involved; that the particular physical surroundings, the shape, or topographical condition of the specific property involved would result in unnecessary hardship for the owner, lessee or occupant, as distinguished from a mere inconvenience, if the provisions of this chapter are literally enforced; and that it is a condition not ordinarily found in the same zoning district, and the condition is created by the regulations of this chapter, and not by an action or actions of the property owner or the applicant;

(2)

The granting of the variance will not impair or injure other property or improvements in the neighborhood in which the subject property is located, nor impair an adequate supply of light or air to adjacent property, substantially increase the congestion in the public streets, increase the danger of fire, create a hazard to air navigation, endanger the public safety, or substantially diminish or impair property values within the neighborhood;

(3)

The granted variance is the minimum variance necessary that will make possible the reasonable use of the land, buildings or structures; and

(4)

The variance is not opposed to the general spirit and intent of this chapter or the comprehensive plan.

(Code 1993, pt. III, ch. 11, § 3)

(a)

Responsibility. The board of appeals shall have the power to hear and decide appeals of allege error in a decision of the community development director made in the enforcement of the provisions of this chapter.

(b)

Hearings, appeals, notice.

(1)

Appeals to the board of appeals may be taken by a person aggrieved or by an officer or department of the city affected by a written decision of the community development director in the interpretation of the city regulations covered in this chapter.

(2)

Any such appeal shall be taken not more than 30 days from the date of mailing or hand delivery of the written decision by the community development director by filing a written notice of appeal with the community development director and the secretary to the board of appeals. Every written notice of appeal shall refer specifically to the provision of the city's regulation and the interpretation claimed by the appellant which contradicts that of the community development director. Upon receipt of the notice of appeal, the community development director shall transmit to the secretary of the board of appeals any and all papers constituting the record upon which the appeal is filed. A public hearing shall be set within 30 days of the date of receipt of notice.

(Code 1993, pt. III, ch. 11, § 4)

(a)

General. Any person who appeared before the board of appeals who is aggrieved by any decision of the board, may present to the court of competent jurisdiction a petition of issuance of a writ of certiorari, duly verified, setting forth that such a decision is illegal in whole or in part, specifying the grounds of the illegality. Such petition may also be filed by the city commission upon a finding that the decision of the board is illegal. A petition for a writ of certiorari shall be filed in the manner and within the time provided by the Georgia Appellate Rules.

(b)

Petition for rehearing by the city commission.

(1)

Any person who appeared before the board of appeals and who is aggrieved by the issuance of a variance by the board of appeals may, prior to filing a petition of writ of certiorari in the court of competent jurisdiction, present a petition to the city commission for a rehearing of the case. The petition of rehearing shall be filed with the city clerk within 30 days of the decision of the board of appeals. The petition shall be accompanied by the filing fee as required by law. The filing of the petition shall stay all proceedings in relation to the variance, including the issuance of building permits and certificates of occupancy by the city and construction of improvements to the subject property by the owner.

(2)

The city commission shall rehear the matter at a quasi-judicial hearing within 30 days of the filing of the petition. Notice of the time, place and subject matter of the rehearing shall be provided by the community development director by regular mail to all persons to whom notice of the hearing before the board of appeals was sent. The notices shall be mailed not less than 15 days prior to the hearing scheduled before the city commission.

(3)

The rehearing shall be conducted in accordance with the quasi-judicial procedures set forth in article XIII of this chapter. The applicant for the variance shall have the burden of proving by a preponderance of the evidence that competent substantial evidence exists to support each of the required findings for a variance. Based upon evidence presented at the hearing, the city commission shall decide whether or not competent substantial evidence exists to grant the variance.

(4)

Any person who appeared before the city commission who is aggrieved by the decision of the city commission may present to the court of competent jurisdiction a petition for issuance of a writ of certiorari, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of illegality. A petition of a writ of certiorari shall be filed in the manner and within the time provided by the Georgia Appellate Rules.

(Code 1993, pt. III, ch. 11, § 5)

A variance hearing scheduled before the board of appeals shall be preceded by a notice in a newspaper of general circulation within the territorial boundaries of the city at least 15 days but not more than 45 days prior to the hearing. The notice shall state the time, place, and purpose of the hearing. A sign containing this information must also be placed in a conspicuous location of the property not less than 15 days prior to the hearing.

(Code 1993, pt. III, ch. 11, § 6)

The community development director is hereby granted the power and authority to vary this chapter for the city, only as provided in this section. Generally, this procedure is to provide for an efficient and effective review and approval process for certain minor aspects of development in the city. Pursuant to the following, the community development director may review and approve, approve with conditions, or deny:

(1)

Yard setbacks. Any yard setback variance request which does not exceed 110 percent of the chapter requirement (for example: where a rear yard setback is 15 feet and the variance request does not exceed 1½ feet of relief for a reduction to a 13½-foot setback).

(2)

Fences, walls and hedges. Any variance request for a fence, wall or hedge height or location, or other buffer screening matter.

(3)

Other minor code variances and minor site plan amendments. Any other minor technical or land use code variance or any minor site plan revision or amendment for items, including, but not limited to, signage, landscape, lighting, parking, and driveways; and a change of use from one permitted use to another permitted use. A minor code variance or site plan revision is one in which the requested change:

a.

Does not increase or enlarge the density, intensity of use, footprint, or any dimension of the overall plan by more than five percent; and

b.

Does not increase or enlarge the exterior footprint of commercial, industrial or multifamily residential buildings (five or more units) by more than 1,000 square feet of building; or more than 1,000 square feet of additional impervious area is requested; or

c.

Does not increase or enlarge the footprint of single-family or small multifamily (four or fewer dwelling units) buildings by more than 360 square feet of building; or more than 360 square foot of additional impervious area is requested; and

d.

Where the scope and intent of any variance approved by the board of appeals, or scope and intent of any site plan previously approved by the city commission, is not violated.

(4)

City commission intent. By adopting this section, the city commission intends that the community development director shall use the provisions of this article as a guide. Because the nature of the variances permitted are minor, the strict adherence to the hardship requirements shall not pertain to a variance granted by the community development director. The community development director shall be free to use reasonableness, as well as an awareness of community needs and aesthetics as a basis for all decisions.

(Code 1993, pt. III, ch. 11, § 7)