In accordance with Code of Alabama, 1975, article 11-52-80, A Zoning Board of Adjustment and Appeals is hereby established by the legislative body of City of Foley. The board of adjustment shall consist of five (5) members, each to be appointed for a term of three (3) years, except that in the first instance one (1) member shall be appointed for a term of three (3) years; two (2) for a term of two (2) years and two (2) for a term of one (1) year, and thereafter each member appointed shall serve for a term of three (3) years or until his successor is duly appointed. In addition to the five (5) regular members provided for in this subsection, two (2) 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.

(Ord. No. 25-2004, 2-3-25)

The board shall adopt rules in accordance with the provisions of any ordinance adopted pursuant to this article. Meetings of the board shall be held at the call of the chairman and at such other times as the board may determine. Such chairman or, in his/her absence, the acting chairman, may administer oaths and compel the attendance of witnesses. All meetings of the board shall be open to the public. 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 of other official actions, all of which shall immediately be filed in the office of the board and shall be a public record.

(Ord. No. 25-2004, 2-3-25)

A.

Appeals to the Board of Adjustment: Any person aggrieved by a final decision of the community development director, or any officer, department, board or bureau of the municipality affected by such decision, may appeal the decision to the board of adjustment. The appeal must be filed within thirty (30) days of the date the decision is rendered. The thirty-day period begins on the date the written decision is provided to the applicant or aggrieved party.

1.

Administrative Decision. An administrative decision refers to any written order, requirement, decision, or determination made by the community development director in the enforcement of the zoning ordinance. This includes, but is not limited to, decisions regarding building permits, site plan approvals, zoning interpretations, and other zoning related matters.

2.

Filing of Appeal. To initiate an appeal, the appellant must submit a written notice of appeal to the board of adjustment. The notice must specify the grounds of the appeal, citing any errors or issues with the application of the zoning ordinance.

3.

Transmission of Record. Upon receipt of the notice of appeal, the community development director must promptly forward all records, documents, and papers constituting the basis for the decision to the board of adjustment in accordance with meeting schedules. This ensures the board has the necessary materials to review the case.

4.

Stay of Proceedings. Filing an appeal automatically stays all proceedings related to the decision under appeal. However, if the community development director certifies that continuing the stay would cause imminent peril to life or property, the stay may be lifted.

5.

Hearing and Decision. The board of adjustment shall fix a reasonable time for the hearing in accordance with standard meeting schedule, provide public notice, and notify all interested parties.

a)

Burden of Proof: The burden of proof rests with the appellant, who must demonstrate the decision of the community development director was in error or inconsistent with the provisions of the zoning ordinance. To successfully appeal, the aggrieved party must establish that the decision involved one (1) or more of the following errors:

i.

Misapplication of Ordinance Provisions: The appellant must show that the community development director incorrectly applied specific terms or provisions of the ordinance. This may include, but is not limited to, errors in the classification or designation of land uses, dimensional standards, or procedural requirements.

ii.

Improper Interpretation: The appellant must demonstrate that the community development director misinterpreted the language, intent, or purpose of the ordinance, leading to a decision that conflicts with the goals, objectives, or legal standards established within the ordinance.

b)

Substantial Evidence and Testimony: The board's decision must be based on substantial evidence presented during the hearing. The appellant is responsible for providing credible testimony, documentation, or expert evidence to support their claim. The board is also required to consider all relevant evidence and testimony provided by other parties or public participants during the hearing.

c)

Decision: The board of adjustment must issue a written decision within a reasonable time after the hearing. This decision must include clear factual findings and conclusions that demonstrate how the evidence presented supports or does not support the appeal. The board has the authority to affirm, reverse, or modify the decision of the community development director, ensuring that the outcome is fair, consistent with the zoning ordinance, and based on the evidence provided.

B.

Special Exceptions: The board of adjustments and appeals (ZBAA) shall hear and decide special exceptions to the terms of the zoning ordinance where such authority is conferred under the ordinance.

Standards for Approval of a Special Exception: The ZBAA may grant a special exception from the zoning ordinance only if the following criteria are met:

1.

Consistency with the Zoning Ordinance: The special exception must be a permitted use under the applicable zoning district and explicitly authorized by the zoning ordinance. It must comply will all zoning ordinance regulations, such as setbacks, heights, and bulk requirements. The board shall ensure that the proposed use is consistent with the intent and purpose of the ordinance for the district in which it is located.

2.

No Detriment to Public Health, Safety, or Welfare: The proposed use shall not adversely affect public health, safety, morals, comfort, or general welfare. It must be demonstrated that the special exception will not create conditions that pose risks to the community or cause harm to neighboring properties.

3.

Compatibility with Surrounding Land Uses: The special exception must be compatible with the existing uses and character of the surrounding properties. The use should not generate excessive traffic, noise, light, odor, or other nuisances that could negatively affect adjacent properties.

4.

Consistency with the Comprehensive Plan: The proposed special exception should be consistent with the city's comprehensive plan. The use should support the long-term vision for development, land use, and growth management in the area, as outlined in the comprehensive plan.

5.

Mitigation of Potential Adverse Impacts: The board may impose conditions as necessary to mitigate potential adverse impacts of the special exception. These conditions may include restrictions on hours of operation, buffering requirements, noise control, traffic management, or other safeguards to protect neighboring properties and the community.

6.

No Substantial Alteration of Neighborhood Character: The proposed use shall substantially alter the essential character of the neighborhood or district in which it is located. The special exception must not disrupt the balance of land uses or undermine the existing neighborhood character.

7.

Substantial Evidence Required for Special Exceptions: The decision to grant or deny a special exception must be based on substantial, credible evidence presented during the public hearing. The applicant bears the burden of proof to demonstrate that the proposed use meets the applicable standards of the zoning ordinance, supported by appropriate documentation such as expert testimony, property surveys, or impact studies.

The board's decision must be based solely on the evidence presented and documented with clear factual findings and conclusions. These findings must explain how the evidence supports or fails to support compliance with the ordinance, ensuring the decision is fair, consistent, and not arbitrary.

The board may impose reasonable conditions to mitigate any potential adverse impacts or ensure consistency with the zoning ordinance's intent. These conditions must be directly related to the evidence presented and tailored to address the specific circumstances of the special exception request.

C.

Variances:

1.

Standards for Approval of a Variance: The board of adjustment and appeals (ZBAA) may grant a variance from the zoning ordinance only if all of the following criteria are met:

a.

Unnecessary Hardship:

i.

The hardship must arise from unique physical characteristics of the property, such as irregular shape, topography, or size, which make strict compliance with the zoning ordinance impractical. Financial difficulty or convenience alone does not justify a variance.

ii.

The hardship must prevent the applicant from making reasonable use of the property while adhering to the zoning ordinance. Compliance must effectively render the property unusable for its intended purpose.

b.

Hardship Not Self-Imposed:

i.

The hardship cannot result from actions taken by the applicant or property owner. For example, subdividing the property, making alterations in violation of the zoning ordinance, or purchasing the property with knowledge of the existing zoning restrictions does not qualify as an undue hardship.

ii.

The hardship must originate from factors beyond the control of the property owner, ensuring the variance addresses inherent property issues rather than problems created by the owner's actions.

c.

No Adverse Impact on the Public Interest:

i.

The variance must not negatively affect the character of the surrounding areas or undermine the objectives of the zoning ordinance.

ii.

It must not alter the essential character of the neighborhood or cause adverse effects on neighboring properties. The variance should align with the broader goals and intent of the zoning regulations.

d.

Minimum Necessary to Afford Relief:

i.

The variance granted must be the minimum adjustment necessary to address the identified hardship. The relief provided should be as limited as possible while still addressing the hardship.

ii.

The ZBAA may consider alternative solutions that could mitigate the hardship without requiring a full variance, such as modifications to the property layout or design adjustments.

e.

Variance Consistent with Zoning Ordinance Intent:

i.

The variance must not contradict the spirit or intent of the zoning regulations.

ii.

It must support the long-term goals and planning vision for the zoning district, ensuring compatibility with surrounding uses and preserving the community's character.

f.

Not for Personal Benefit:

i.

The variance request must address the unique needs of the property, not provide personal or financial gain to the applicant.

ii.

Variances cannot be granted solely due to financial inconvenience or potential profit loss. The hardship must be directly related to the physical characteristics of the land.

2.

Substantial Evidence Required for Variances: The decision to grant or deny a variance must be based on substantial, credible evidence presented during the public hearing. The applicant bears the burden of proof to demonstrate that strict enforcement of the zoning ordinance would result in an unnecessary hardship unique to the property and that the requested variance is the minimum necessary to alleviate that hardship.

The ZBAA's decision must be supported by a detailed record of factual findings and legal conclusions that clearly explain how the request satisfies the legal criteria for a variance. This ensures the decision is fair, consistent, and not arbitrary.

3.

Conditions and Safeguards: In granting any variance, the board is authorized to impose conditions and safeguards to ensure compliance with the intent of its decision and the spirit of this Ordinance. These conditions and safeguards are designed to uphold the integrity of the board's decision and the objectives of the Ordinance. Should any condition or safeguard imposed by the board be violated, the variance granted shall be considered null and void. Furthermore, such a violation shall be deemed a breach of this Ordinance, subject to all legal remedies available to address and remedy the violation.

(Ord. No. 25-2004, 2-3-25)

In exercising the above-mentioned powers, the board may, so long as such action is in conformity with the terms of this Ordinance, reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination as ought to be made, and to that end shall have powers of the officer from whom the appeal is taken. The concurring vote of four (4) members of the board shall be necessary to reverse any order, requirements, decision, or determination of any such administrative official or to decide in favor of the applicant on any matter upon which it is required to pass under this Ordinance, or to effect any variation in the application of this Ordinance.

(Ord. No. 25-2004, 2-3-25)

It is the intent of the governing authority of the city that all questions of interpretation and enforcement of this Ordinance shall be presented first to the building official or community development director. Other than those applications and matters upon which the terms and provisions of this Ordinance may require action and decision by the board, only the appeals taken in the manner and form as provided in this Ordinance from the actions and decision of the building official or community development director will be considered and acted upon by the board. However, any interested party who is aggrieved by any action or decision of the Board may take an appeal therefrom to a circuit court of law, as provided for in the state Law.

(Ord. No. 25-2004, 2-3-25)

All applications to the board for interpretations, special exceptions, or variances must be accompanied by a check, payable to the City of Foley, or cash in the amount of one hundred fifty dollars ($150.00). All other ordinances and regulations are hereby repealed to reflect the above change.

(Ord. No. 25-2004, 2-3-25)