The purpose of this article is to establish procedures for appealing the strict application of regulations and conditions contained herein and conditions of zoning when those regulations impose a hardship on the development of the property, and to provide for interpretation of the text of this article and the official zoning map. Appeals are authorized herein to be considered by various bodies and individuals depending on the type of appeal and its relationship to applications for use permits or rezonings.

Variances apply to the development standards and district standards per this chapter. Modifications apply to the approved conditions of zoning or use permits.

(Ord. No. 2012-04, § 1(Exh. A), 6-11-2012)

The following are the powers and jurisdictions of the various decision makers and administrative bodies.

(Ord. No. 2012-04, § 1(Exh. A), 6-11-2012)

The city council shall have the following powers and duties under the provisions of this section:

(1)

To hear and decide applications for re-zonings, use permits, and modifications pursuant to article VI.

(2)

To hear and decide applications for concurrent variances in conjunction with applications for rezonings, use permits, and/or zoning modifications pursuant to article VI.

(3)

To initiate a modification of approved zoning conditions.

(Ord. No. 2012-04, § 1(Exh. A), 6-11-2012)

The planning and zoning commission shall have the following powers and duties under the provisions of this section:

(1)

To hear and decide appeals from the interpretation of any of the provisions of this section by the director of planning in accordance with section 80-248;

(2)

To hear and decide appeals when it is alleged that there is an error in any order, requirement, decision, or determination made by the director of planning in the enforcement of this article.

(3)

To hear and decide appeals from a permitting or procedural decision of the director of planning regarding minor or administrative variance requests.

(4)

To hear and recommend approval or denial of re-zonings, use permits pursuant to article VI.

(5)

To hear and defer an application for re-zonings, and use permits pursuant to article VI.

(6)

Other duties as outlined in this chapter.

(Ord. No. 2012-04, § 1(Exh. A), 6-11-2012; Ord. of 10-28-2019(1); Ord. No. 2023-12, § 1(Exh. A), 7-24-2023)

The director of planning shall have the following jurisdiction, powers and duties under the provisions of this section:

(1)

To determine the type of appeal application or land use process the property owner/agent is required to apply for.

(2)

To consider and decide on minor variances to minimum yard requirements, not to exceed ten percent of such requirement, as long as property owners with standing do not object.

(3)

To consider and decide on administrative minor variances of no more than one foot.

(4)

To consider and decide on administrative variances.

(5)

To consider and decide on administrative modifications to conditions of zoning.

(6)

To interpret the provisions of the zoning ordinance related to the following:

a.

Inconsistent, vague or obscure language;

b.

Provisions which are in conflict or are confusing; and

c.

Conflicting or redundant procedural requirements; and

(7)

To establish procedural requirements for review of appeal applications.

(Ord. No. 2012-04, § 1(Exh. A), 6-11-2012; Ord. of 10-28-2019(1))

The authority and jurisdiction of boards and individuals as provided herein shall be limited as outlined in the following. In exercising this jurisdiction, each hearing board or individual shall have authority to determine whether it has jurisdiction.

(1)

There shall be no variances to permitted uses or accessory uses as specified in the zoning district regulations, administrative/use permit or zoning conditions.

(2)

There shall be no variances to the minimum lot frontage on a street as required in designated zoning districts of the zoning ordinance.

(3)

There shall be no modification to increase the density or change the use approved under the rezoning case except to allow for the development of a planned development.

(4)

There shall be no modification to revise a site plan that, as determined by the director of planning, results in a significant change in the approved concept. Such a site plan revision shall require rezoning pursuant to article VIII.

(5)

There shall be no relief or variance from the standards of article VI or article VIII.

(Ord. No. 2012-04, § 1(Exh. A), 6-11-2012; Ord. of 10-28-2019(1))

A variance is a request for relief from the provisions of this chapter. There are four types of variance applications. The type of variance necessary shall be determined by the director of planning. The different types of appeals are listed below and described in the following sections:

(1)

Primary variance.

(2)

Minor variance/administrative minor variance.

(3)

Secondary variance/interpretation.

(4)

Concurrent variance.

(Ord. No. 2012-04, § 1(Exh. A), 6-11-2012; Ord. of 10-28-2019(1))

Variances may be considered in all districts. Primary variances and concurrent variances shall only be granted upon showing that:

(1)

Relief, if granted, would be in harmony with, or, could be made to be in harmony with, the general purpose and intent of this chapter; or

(2)

The application of the particular provision of this chapter to a particular piece of property, due to extraordinary and exceptional conditions pertaining to that property because of its lot size, shape, or topography, would create an unnecessary hardship for the owner while causing no detriment to the public; or

(3)

Conditions resulting from existing foliage or structures bring about a hardship whereby a sign meeting minimum letter size, square footage and height requirements cannot be read from an adjoining public road.

(Ord. No. 2012-04, § 1(Exh. A), 6-11-2012; Ord. of 10-28-2019(1))

The director of planning may grant an administrative minor variance up to one foot from any minimum yard requirement.

(Ord. No. 2012-04, § 1(Exh. A), 6-11-2012; Ord. of 10-28-2019(1))

The director of planning may grant minor variances to minimum yard requirements, not to exceed ten percent of such requirement, as long as no objection has been submitted in writing to the director of planning. The applicant must notify the immediately adjacent property owners via e-mail and/or certified mail. Staff must be copied on all email notifications. An appeal to a minor variance decision must be filed as a secondary variance request.

(Ord. No. 2012-04, § 1(Exh. A), 6-11-2012; Ord. of 10-28-2019(1))

A request for a variance from any zoning ordinance provision that is not being handled as a minor, administrative minor or concurrent variance and shall be heard and decided by the planning and zoning commission in accordance with article VI.

(Ord. No. 2012-04, § 1(Exh. A), 6-11-2012)

The planning and zoning commission shall consider appeals of administrative variance decisions and interpretations made by the director of planning authorized to grant a variance request or interpretation. This type of appeal is considered a secondary variance.

(Ord. No. 2012-04, § 1(Exh. A), 6-11-2012; Ord. of 10-28-2019(1); Ord. No. 2023-12, § 1(Exh. A), 7-24-2023)

The city council may consider a concurrent variance from any standards of this chapter which shall be filed simultaneously with rezoning, use permit, or zoning modification requests on the same property based on the conceptual plan submitted with the petition for the same agenda. The planning and zoning commission shall also hear and make recommendations on concurrent variances filed with rezonings or use permit applications. The city council shall consider such concurrent variance requests in accordance with the standards set forth in section 80-251. Public notification shall be in accordance with sections 80-273 and 80-291.

(Ord. No. 2012-04, § 1(Exh. A), 6-11-2012; Ord. No. 2023-12, § 1(Exh. A), 7-24-2023)

(a)

The city council may only consider variance requests as part of, or in conjunction with, a rezoning, use permit, or modification application.

(b)

If an application for a variance to the planning and zoning commission duplicates a concurrent variance request denied by the city council, such an application shall not be accepted by the director of planning prior to the expiration of six months from the date of the city council's denial of the concurrent variance request. A variance request to the planning and zoning commission cannot be considered simultaneously with the same concurrent variance request pending before the city council.

(Ord. No. 2012-04, § 1(Exh. A), 6-11-2012; Ord. of 10-28-2019(1); Ord. No. 2023-12, § 1(Exh. A), 7-24-2023)

Applications for a concurrent variance shall be submitted to the director of planning in accordance with the advertised filing deadlines for the city council meetings. A regular variance fee shall be charged, and the application shall comply with all advertising and notification requirements specified in article VIII, amendments to zoning code and map. One notice sign may serve for both the rezoning, use permit, zoning modification, and concurrent variance request as long as the sign is marked to indicate all actions which are pending.

The variance case file number shall be included on the rezoning petition.

(Ord. No. 2012-04, § 1(Exh. A), 6-11-2012; Ord. of 10-28-2019(1); Ord. No. 2023-12, § 1(Exh. A), 7-24-2023)

A modification is a request for relief from the conditions of zoning or use permit when a site development proposal does not comply with approved conditions. There are two different types of modifications which are listed below and described in the following sections:

(1)

Administrative modification;

(2)

Zoning modification.

(Ord. No. 2012-04, § 1(Exh. A), 6-11-2012)

A request to modify a condition of zoning or use permit may be initiated by the property owner, the planning and zoning commission, or the city council. Applications shall be submitted to the director of planning in accordance with the deadline schedule adopted by the city council. A modification application shall include a legal description of the property for which the modification is requested and a written explanation of the circumstances upon which the requested change of condition is based including the reason why development or use of the property, as approved, cannot be accomplished without the modification of a condition. Applicants shall submit a revised site plan illustrating the requested modification. The type of modification necessary is determined by the director of planning.

(Ord. No. 2012-04, § 1(Exh. A), 6-11-2012; Ord. of 10-28-2019(1); Ord. No. 2023-12, § 1(Exh. A), 7-24-2023)

An administrative modification application may be filed if the director of planning determines that the modification request is not prohibited by section 80-249, limitation on authority and, will constitute only a technical change and does not involve significant public interest, or public interest has been addressed by letters expressing no objections from property owner(s) with standing and/or neighborhood associations. The director of planning shall review and approve administrative modifications.

(Ord. No. 2012-04, § 1(Exh. A), 6-11-2012; Ord. of 10-28-2019(1))

If an applicant wishes to appeal the decision of the director of planning regarding an administrative modification, or if it is determined by the director of planning that a request will involve a matter of public interest, the applicant must file a separate application requesting a zoning modification on forms available from the director of planning. These shall be processed as secondary variances/interpretations in accordance with this article.

(Ord. No. 2012-04, § 1(Exh. A), 6-11-2012; Ord. of 10-28-2019(1); Ord. No. 2023-12, § 1(Exh. A), 7-24-2023)

A zoning modification application shall be filed if an approved zoning condition cannot be met and it is determined by the director that the application involves significant public interest and is in compliance with section 80-249, limitation on authority. The zoning modification request shall be presented to the city council for consideration in a public hearing.

(Ord. No. 2012-04, § 1(Exh. A), 6-11-2012)

This section contains basic steps common to all variances and modifications.

(Ord. No. 2012-04, § 1(Exh. A), 6-11-2012)

All applications for variances, interpretations, and modifications shall be filed with the director of planning on forms available in the department. The type of application process necessary to accomplish the change requested by the applicant shall be determined by the director of planning. The zoning administrator shall transmit the petition and all documents constituting the record to the appropriate hearing body or individual.

(Ord. No. 2012-04, § 1(Exh. A), 6-11-2012; Ord. of 10-28-2019(1); Ord. No. 2023-12, § 1(Exh. A), 7-24-2023)

Standing refers to a party or parties allowed to initiate a request for variances or modifications which are limited to the following:

(1)

Modification petition. A request for a modification may be initiated by the property owner or its agent, the planning commission or the city council;

(2)

Variance petition. A request for a variance may be initiated by the property owner of subject property or its agent;

(3)

Secondary variance petition. A request for a secondary variance appeal may be initiated by the property owner of the subject property or its agent, or the owner of other real property within 300 feet of the boundaries of the subject property; and

(4)

Interpretation petition. A request for an interpretation of a decision of the director of planning may be requested by any individual.

(Ord. No. 2012-04, § 1(Exh. A), 6-11-2012; Ord. of 10-28-2019(1))

(a)

Applications for variances, interpretations and modifications shall be submitted in accordance with the advertised filing deadlines, depending on the type of petition in accordance with section 80-273.

(b)

Concurrent variance applications shall be filed in accordance with the filing deadline for the parent petition of either a use permit, rezoning, or zoning modification request in accordance with article VI.

(c)

The director of planning has the discretion to extend the filing deadline by two days for all applications except administrative minor and minor variance applications. A letter from the applicant explaining the delay in filing shall be submitted prior to the close of the filing deadline.

(Ord. No. 2012-04, § 1(Exh. A), 6-11-2012; Ord. of 10-28-2019(1))

(a)

An application may be withdrawn by the applicant in writing at any time before the public hearing notice advertisement is published and/or the notice of the hearing is posted on the property.

(b)

Applications which do not require a public hearing may be withdrawn at any time before notification of a decision is mailed.

(c)

Once the public hearing has been properly advertised, the request for withdrawal of the application must be placed on the public hearing agenda and the appropriate decision-making body shall act on the withdrawal request.

(Ord. No. 2012-04, § 1(Exh. A), 6-11-2012)

At the time of application, applicants shall pay fees as established by the city council. Fees paid are not refundable except where the zoning administrator determines that an application was accepted in error, or the fee paid exceeded the amount due, in which case the amount of the overpayment will be refunded to the applicant.

(Ord. No. 2012-04, § 1(Exh. A), 6-11-2012)

The filing of an appeal authorized by this article shall operate as a stay of any enforcement proceedings by the city until final decision on the appeal. No city council or planning and zoning commission action shall be taken on any property which is the subject of any litigation pending in state or federal court wherein the city or its agents or officials are parties.

(Ord. No. 2012-04, § 1(Exh. A), 6-11-2012)

A public hearing shall be conducted by the stated hearing body of each appeal application before taking action thereon except those authorized to be considered administratively. The schedule of public hearings and deadlines for the filing of an appeal shall be established by the city council.

Public hearings are not required for administrative variances, minor variances, administrative minor variances and administrative modifications; however, notification in accordance with subsection 80-273(b) is required.

(Ord. No. 2012-04, § 1(Exh. A), 6-11-2012)

The hearing body shall have before it, at the time of hearing, a report from the director of planning which shall summarize the hardship or justification reported by the applicant as related to the application and background information for variances, modifications, and interpretations, and any other information requested by the hearing body. The hearing body shall, hear, analyze, consider, and make a written report of its decision in accordance with section 80-275, notice of decisions.

(Ord. No. 2012-04, § 1(Exh. A), 6-11-2012; Ord. of 10-28-2019(1))

(a)

For those applications requiring a public hearing (only a hearing before the body that renders final decisions on primary variances, secondary variances, concurrent variances, and zoning modifications is required; recommending bodies do not require public hearings), the director of planning shall:

(1)

Publish notice of the public hearing in a newspaper of general circulation at least 30 days, but no more than 45 days, prior to the public hearing at which an application will be heard. The published notice shall contain the time, place, and purpose of the hearing and the location of the property, if applicable (secondary variances may not always be property-specific). Additionally, notice of the public hearing shall be sent to the owner of the property that is the subject of the proposed action at least 30 days prior to the hearing date by regular mail. Re-notification is not required when a petition is deferred by the city council or the planning and zoning commission.

(2)

The applicant or agent shall post a sign as issued by the planning and zoning department in a conspicuous location on each public street frontage of the subject site, at least 30 days, but not more than 45 days, prior to the public hearing at which an application will be heard.

The sign shall be mounted and posted as specified by the planning and zoning department. Property that is not posted on the 30th day before the scheduled hearing date will be administratively removed from the agenda. The sign will remain posted on-site until final action by the appropriate hearing body is taken.

When a petition advertised for a public hearing is deferred, an updated sign is not required.

The posted sign shall contain the date, time, place, and purpose of the hearing.

For zoning modifications, all notices shall contain all of the items listed in the previous sentence, the location of the property, the current and proposed zoning districts (if applicable), the zoning and/or use permit case number to be modified and the condition number(s) to be modified.

The posting of a sign is not required when a secondary variance is not requested by the property owner or owner's representative.

(3)

Notice of the public hearing shall be postmarked 30 days prior to the hearing date and shall be given by regular mail to all property owners within 1,000 feet of the boundaries of the property who appear on the current tax records of the city as retrieved by the city's geographic information system. When a petition advertised for a public hearing is deferred, updated mailed notices are not required.

The mailing of public notices is not required when a secondary variance is sought by an individual other than the property owner.

(4)

Additional notice. Mailed notice shall be made via USPS at least 15 days, but not more than 45 days, before the date of the public hearing to the following:

a.

Owner(s) of record on the current tax records of the city as retrieved by the city's geographic information system;

b.

The appellant (for appeals); and

c.

The original applicant (for appeals, if the appellant was not the original applicant).

(b)

For those applications not requiring a public hearing, notification shall be provided as follows:

(1)

Administrative variance. The owners of property adjacent and contiguous across the right-of-way of the subject site shall be notified via a letter of notification.

(2)

Minor variance. The owners of property adjacent and contiguous across the right-of-way of the subject site shall be notified via a letter of notification.

(3)

Administrative modification. The director of planning shall determine what notification, if any, is reasonable on a case by case basis.

(4)

Administrative minor variance. No written notification.

(Ord. No. 2012-04, § 1(Exh. A), 6-11-2012; Ord. of 10-28-2019(1); Ord. No. 2023-12, § 1(Exh. A), 7-24-2023)

The planning and zoning commission may take the following actions pursuant to a secondary variance and/or an interpretation appeal:

(1)

Affirm an order, requirement, or decision, wholly or partly.

(2)

Reverse an order, requirement, or decision, wholly or partly.

(Ord. No. 2012-04, § 1(Exh. A), 6-11-2012)

Written notice of all decisions shall be placed in the official case file and a letter shall be forwarded to the applicant by regular mail within ten working days from the date of the decision by the following authority:

(1)

The director of planning shall provide written notification of the planning and zoning commission's decisions;

(2)

The director of planning shall, with respect to minor variances, administrative variances, and administrative modifications provide written notification of such decisions. The approval of a building permit shall constitute notice of approval for an administrative minor variance; and

(3)

The clerk to the city council shall, with respect to zoning modifications and concurrent variances, provide written notification of the city council's decisions.

(Ord. No. 2012-04, § 1(Exh. A), 6-11-2012; Ord. of 10-28-2019(1))

If a variance or modification application is denied by an authorized department director, city council, or the planning and zoning commission, an application for the same variance or modification item shall not be considered until:

(1)

At least six months has elapsed from the date of the decision; or

(2)

New information pertinent to the subject, not previously considered, is submitted by the petitioner and the six-month period is exhausted; or

(3)

If an application is denied by the director of planning, the applicant may appeal the decision to the appropriate hearing body depending on the type of petition.

This provision is not intended to supersede provisions of article VIII and/or article IV as related to decisions regarding rezonings and/or use permits.

(Ord. No. 2012-04, § 1(Exh. A), 6-11-2012; Ord. of 10-28-2019(1); Ord. No. 2023-12, § 1(Exh. A), 7-24-2023)

(a)

The decision of the planning and zoning commission to grant or deny variances is a final decision; therefore, any appeal of such a decision shall be pursued by application for petition for review filed with the superior court of the county within 30 days of the date of the decision in accordance with O.C.G.A. § 36-66-1 et seq. and as provided for in O.C.G.A. ch. 4, tit. 5.

(b)

Appeals of decisions (secondary variances/interpretation) of the director of planning, or the director of public works shall be brought within 30 days from the date of the decision to the planning and zoning commission.

(c)

Authority to accept service. The planning and zoning director shall be authorized, without additional board or agency action, to accept service and/or to approve or issue any form or certificate necessary to perfect the petition described in the Georgia Zoning Procedures Law, O.C.G.A. § 36-66-1 et seq., for review of lower judicatory bodies and upon whom service of such petition may be effected or accepted on behalf of the lower judicatory board or agency, during normal business hours, at the City of Fairburn City Hall.

(Ord. No. 2012-04, § 1(Exh. A), 6-11-2012; Ord. of 10-28-2019(1); Ord. No. 2023-12, § 1(Exh. A), 7-24-2023)

If not used, a variance shall be valid only for a period of 36 months from the date it is granted. Extensions may be sought under the provisions of article VIII, amendments to zoning code and map.

(Ord. No. 2012-04, § 1(Exh. A), 6-11-2012)