The board of zoning appeals of the city is hereby established. Said board shall consist of five members appointed by the mayor and city council for overlapping terms of three years. Initial appointment shall be as follows: Two members for one year, two members for two years, and one member for three years; each successive appointment shall be for three years. Any vacancy in the membership shall be filled for the unexpired term in the same manner as the initial appointment. Members shall be removable for cause by the appointing authority upon written charges and after public hearing. No member shall hold any other public office or position, except that one member may also be a member of the planning commission. The board of zoning appeals shall adopt rules in accordance with the provisions of this ordinance for the conduct of its affairs.

[a]

The board of zoning appeals shall elect one of its members, other than the member of the planning commission, as chairperson, who shall serve for one year or until such member is re-elected or such member's successor is elected. The board shall appoint a secretary who may be a member of the planning commission.

[b]

The meetings of the board of zoning appeals shall be held at the call of the chairperson and at such other times as the board may determine. The chairperson, or in the chairperson's absence, the acting chairperson, may administer oaths and compel the attendance of witnesses by subpoena. All meetings of the board shall be open to the public.

[c]

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 other official actions, all of which shall be immediately filed in the office of the board and shall be a public record.

The board of zoning appeals shall have the following powers:

(113.1)

Administrative review. To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination of the building inspector in the enforcement of this ordinance.

(113.2)

Special exceptions. To hear and decide applications for special exceptions if specified in this ordinance and for decision on any special questions upon which the board of zoning appeals is authorized by this ordinance to pass. When acting upon such application for special exception, the board of zoning appeals shall give consideration to the following factors, where applicable:

(a)

The proposed design and location of the particular development.

(b)

The possible traffic-generating characteristics of the proposed developments.

(c)

The effects the proposed developments will have on the present or intended character of the area in which it proposes to locate.

(d)

The availability of public utilities, facilities and services.

After such considerations, the board shall take such actions or establish such reasonable conditions of approval such as planted screens, as will accomplish the intents and purposes of this ordinance.

(113.3)

Variances. To authorize upon appeal in specific individual cases such variances from terms of this ordinance as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this ordinance will, in an individual case, result in unnecessary hardship, so that the spirit of this ordinance shall be observed, public safety and welfare secured, and substantial justice done. Such variance may be granted in such individual case of practical difficulty or unnecessary hardship only upon a finding by the board of zoning appeals that all of the following conditions exist:

(a)

There are extraordinary and exceptional conditions pertaining to the particular piece of property in question because of its size, shape or topography; and

(b)

The application of the ordinance to this particular piece of property would create an unnecessary hardship; and

(c)

Such conditions are peculiar to the particular piece of property involved; and

(d)

Relief, if granted, would not cause substantial detriment to the public good or impair the purposes and intent of this ordinance; and

(e)

The special circumstances surrounding the request for a variance are not the result of acts by the applicant; and

(f)

The variance is not a request to permit a use of land, buildings or structures which is not permitted by right or special exception in the district involved.

(113.4)

Use variance prohibited. No variance may be granted for a use of land or premises.

Requests for a variance shall be filed in writing with the building inspector. Within ten days after receiving a request for a variance, the building inspector shall:

(a)

Send the request, with any comments such inspector may deem necessary added thereto, to the secretary of the board of zoning appeals;

(b)

Cause to have posted in a conspicuous place on the property one or more signs, each of which shall be not less than 12 square feet in area, and each of which shall contain information as to the proposed change and the date and time of the public hearings before the board of zoning appeals.

In exercising the above powers, the board of zoning appeals may, in conformity with the provisions of this ordinance, reverse or affirm, wholly or in part, or may modify the order, requirements, decisions, or determination of the building inspector, and to that end shall have all the powers of the building inspector and may issue or direct the issuance of a permit.

[a]

Appeals to the board of zoning appeals may be taken by any person aggrieved, or by any officer, department, board or bureau of the city affected by any decision of the building inspector or other city officials based on this ordinance. Such appeals shall be taken within a reasonable time, as provided by the rules of the board, by filing with the building inspector and any other city official involved, and with the board of zoning appeals, a written notice of appeal specifying the grounds thereto. All papers constituting the record upon which the action appealed from was taken shall forthwith be transmitted to the board of zoning appeals.

[b]

When an appeal is for a variance or for a grant of special exception, a payment to the city of an amount sufficient to cover any required fees to defray costs of processing and erection of signs for variance must accompany the notice of appeal filed with the building inspector.

The board of zoning appeals shall fix a reasonable time for the hearing of appeals or other matters referred to it, and give at least 15 but not more than 45 days' public notice thereof, as provided in O.C.G.A. § 36-66-4, as well as due notice to the parties in interest, and decide the same within a reasonable time. Upon a hearing, any party may appear in person, or by agent, or by attorney.

An appeal stays all legal proceedings in furtherance of the action appealed from, unless the building inspector certifies to the board of appeals after the notice of appeal shall have been filed with such inspector that, by reason of facts stated in the certificate, a stay would, in such inspector's opinion, cause imminent peril to life and property. In such case, proceedings shall not be stayed otherwise than by a restraining order which may be granted by the board of zoning appeals or by a court of record on application and notice to the official from whom the appeal is taken and on due cause shown.