Greenville City Zoning Code
ARTICLE X
BOARD OF ADJUSTMENT
§ 10-1 Establishment and Membership.
10-1.1
A Zoning Board of Adjustment is hereby established. Board establishment and membership shall be subject to applicable resolutions and state law.
10-1.2
The Zoning Board of Adjustment shall consist of five (5) members.
(A)
Members shall be appointed by the City Council.
(B)
Members shall serve for a term of two (2) years and shall be removable for cause by the appointing authority upon written charges after public hearing. A member shall serve no more than three (3) consecutive two (2) year terms and shall be ineligible to succeed himself/herself for any additional successive term. A member may not be re-appointed until one (1) full term has passed since the last day of the last term of his/her previous service on the Board.
10-1.3
The City Council may appoint four (4) alternate members of the Board.
(A)
Alternate members shall serve in the absence of one or more of the regular members when requested to do so by the Community Development Director or chairman of the Board of Adjustment so that all cases to be heard by the Board of Adjustment will be heard by a minimum of four (4) members.
(B)
Each alternate member, while attending any regular or special meeting of the Board and serving in the absence of a regular member, has and may exercise all the powers and duties of a regular member.
(C)
Alternate members shall serve for the same period as regular members.
(D)
Alternate members shall be subject to removal in the same manner as that for regular members.
10-1.4
The terms of all Board members shall not expire at the same time.
10-1.5
Regular and alternate member vacancies created by resignation or other causes shall be filled as follows:
10-1.6
Compensation, if any, for a Board member may be provided for by the appointing authority.
(Ordinance 08-059, ex. A, adopted 5/27/08)
§ 10-2 Organization.
10-2.1
The Board shall adopt rules necessary to conduct its affairs and establish Board organization, procedures, meeting notice and meeting conduct.
10-2.2
Such rules adopted by the Board shall be in accordance with state law and the provisions of this Ordinance.
10-2.3
The Chairman of the Board shall be appointed by the City Council.
(Ordinance 08-059, ex. A, adopted 5/27/08)
§ 10-3 Jurisdiction.
10-3.1
Authority for Applications and Appeals
(A)
Authority for Applications.
The Board of Adjustment shall be the final decision-maker on the following types of applications (unless the decision is appealed as outlined in subsection 10-4.5):
(4)
An request for interpretation of zoning maps and determination of disputed questions of lot lines and district boundary lines and similar questions that may occur in the administration of this Ordinance.
(B)
Authority for Appeals.
The Zoning Board of Adjustment shall be the final decision-maker on appeals related to the following types of applications (unless the decision is further appealed as outlined in subsection 10-4.5):
(1)
An appeal of a decision of the Community Development Director, unless an appeal process is otherwise outlined within this Ordinance;
(2)
An appeal of any decision of any officer, department, or board of the City by any person affected by any order, requirement, decision or determination made by an administrative official who is charged with enforcing this Ordinance or an ordinance adopted pursuant to this Ordinance, if another appeal process is not otherwise outlined within this Zoning Ordinance, unless an appeal process is otherwise outlined within this Ordinance.
(C)
Limitation on Authority.
The authority delegated to the Zoning Board of Adjustment under this Zoning Ordinance shall not be construed to effect any of the following:
(1)
Approval of a petition for a zoning amendment;
(2)
Approval of a Conditional Use Permit;
(3)
Authorization of a use not authorized in the zoning district in which the applicant’s property is located, except to the extent necessary to decide a special exception or a petition for a change in status of a non-conformity.
(Ordinance 08-059, ex. A, adopted 5/27/08)
§ 10-4 Procedures.
10-4.1
Board meetings shall be held at the call of the chairman and at such other times as the Board may decide.
10-4.2
All meetings of the Board shall be open to the public, except that the Board may hold closed meetings as permitted under state law. The Board shall keep minutes of its proceedings, showing the vote of each member upon every question or, if absent or failing to vote, indicate such fact. The Board shall also immediately file and keep in its office records of its examinations and other official actions. All such records and minutes shall be public record.
10-4.3
All matters to be heard by the Board shall be heard by a minimum of four (4) members; four member of the Board shall constitute a quorum.
10-4.4
The concurring vote of four members shall be required for the Board to:
10-4.5
Each decision of the Board shall be subject to court review.
(A)
Any person or persons, jointly or severally aggrieved by any decision of the Board or any taxpayer or any officer, department or board of the municipality may petition for court review.
(B)
The petition shall be verified and shall state that the decision is illegal, in whole or part, specifying the grounds of the illegality.
(C)
Any petition for court review court shall be presented to the court within ten (10) days after the decision of the Board.
10-4.6
The Chairman of the Board or, in the Chairman’s absence, the acting chair, may administer oaths. The chairman of the Board or any member temporarily acting as chairman may, in his official capacity, administer oaths to witnesses and compel the attendance of witnesses in any matter coming before the Board.
10-4.7
Duties of Community Development Director.
The Community Development Director (or designee) shall act as the staff liaison to the Board and secretary of the Board, and shall set up and maintain a separate file for each application for approval, special exception, and variance received. The Director shall record in each file the names and addresses of all persons to whom notices are mailed, including the date of mailing, and shall keep a record of all notices published that are required by this ordinance in relation to the Board.
10-4.8
Timing of Decisions on Applications
The Board of Adjustment shall not render any decision on a development application, appeal or relief petition while a petition for a zoning amendment, application for a Conditional Use Permit, or plat application for the same land is pending and until such petition or application has been finally decided pursuant to procedures in this Zoning Ordinance.
(Ordinance 08-059, ex. A, adopted 5/27/08)
§ 10-5 Administrative Appeals.
10-5.1
Any person aggrieved or any officer, department, or board of the municipality affected by any order, requirement, decision or determination made by an administrative official charged with enforcing this Ordinance or an ordinance adopted pursuant to this Ordinance may appeal the decision.
10-5.2
Appeals shall be taken within fifteen (15) days after the decision has been rendered by the City Planner, by filing with the officer from whom the appeal is taken and with the Board a notice of appeal, specifying the grounds thereof.
10-5.3
The official from whom the appeal is taken shall forthwith transmit to the Board all papers constituting the record from which such appeal is taken.
10-5.4
An appeal shall stay all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken certifies to the Board, after notice of appeal has been filed with him, that by reason of the facts stated in the certificate, a stay would, in his opinion, cause imminent peril to life or property, or that because the violation charged is transitory in nature a stay would seriously interfere with enforcement of the ordinance.
10-5.5
If certification occurs in accordance with this section, proceedings may not be stayed except by a restraining order which may be granted by the Board or by a court of record on application, on notice to the officer from whom the appeal is taken and on due cause shown.
10-5.6
The Board shall fix a reasonable time for hearing the appeal, give due public notice of public hearing on the appeal, such notice of which shall be in accordance with Section 8-1 [8-2.3], and decide the appeal within a reasonable time. Public hearings shall be conducted in the manner provided in Section 8-1 [8-2.3].
10-5.7
Any party that is part of the appeal proceedings may appear in person or may be represented by attorney or by agent at the appeal hearing.
10-5.8
The Board shall decide the appeal within thirty (30) working days of the close of the public hearing. The Board may reverse or affirm, in whole or in part, or may modify the order, requirement, decision, or determination appealed from, and shall make any order, requirement, decision, or determination that in the Board’s opinion ought to be made in the circumstances.
10-5.9
The Board shall have all the powers of the officer from whom the appeal is taken, including the power to impose reasonable conditions to be complied with by the applicant.
10-5.10
The Board shall not hear an appeal or application previously denied within one (1) year following denial, unless it finds a substantial change in conditions or circumstances has occurred.
(Ordinance 08-059, ex. A, adopted 5/27/08)
§ 10-6 Variances.
10-6.1
Purpose, Applicability & Effect.
(A)
The purpose of a variance is to vary one or more zoning standards made applicable to a use authorized under this Zoning Ordinance[.]
(1)
A variance application shall not be used as a means of amending the text of the City’s zoning regulations or of changing a zoning district classification of the property for which the variance is sought.
(2)
A variance application cannot be used as a means to contest the applicability of a standard to a development application, an exemption determination, or a decision on a development application.
(B)
A variance application is applicable only within the City limits of Greenville.
(C)
The granting of a variance petition in whole or in part authorizes the petitioner to submit a development application that complies with the standard as varied or modified, and authorizes the Community Development Director to evaluate the application using the varied standard, for the duration of the variance.
10-6.2
Application Requirements
(A)
A variance application shall contain a detailed written statement of the reasons why the standards to be varied should not be applied to the use identified in the application, and shall be accompanied by the fee established by the City Council. The application also shall be accompanied by illustrations or other documents showing the effect of the requested variance on the proposed development.
(B)
A variance application shall be filed with the Board of Adjustment. No development application that is dependent upon approval of the pending variance application shall be accepted for filing until a final decision has been reached on the variance application.
(C)
An application for a variance to a use in a zoning district for which an application for a zoning amendment is pending may not be accepted for filing until a final decision has been reached on the zoning amendment.
10-6.3
Processing of Petitions and Decision
(B)
The Board of Adjustment shall approve, approve with conditions, or deny the variance application.
(C)
A variance application shall be decided within thirty (30) days of the official filing date, unless the application is tabled or there is a lack of quorum. In either case, the Board shall then have an additional thirty (30) days to decide the application. Any additional time period that the Board needs to decide an application must be agreed upon by the applicant, and the Board shall decide the application within the agreed-upon timeframe.
(D)
The applicant for a variance bears the burden of proof to demonstrate that a variance to the standards applicable to a particular use should be granted.
10-6.4
The Board may authorize or require the following:
(A)
Reconstruction, extension or enlargement of a building occupied by a nonconforming use on a lot or tract occupied by such building, provided such reconstruction does not prevent the return of such property to a conforming use.
(B)
Modifications of the height, yard, area coverage and parking regulations as may be necessary to secure appropriate development of a parcel of land which differs from other parcels in the district by being such restricted area, shape, or slope that it cannot be appropriately developed without such modification.
10-6.5
In deciding the variance application, the Board shall apply the following criteria:
(A)
There are special circumstances or conditions arising from the physical surroundings, shape, topography or other feature affecting the land such that the strict application of the provisions of this Zoning Ordinance to the proposed use would create an undue hardship or inequity upon or for the applicant, as distinguished from a mere inconvenience, in developing the land or deprive the applicant of the reasonable and beneficial use of the land;
(B)
The variance is necessary for the preservation and enjoyment of a substantial property right of the petitioner;
(C)
The hardship or inequity suffered by petitioner is not caused wholly or in substantial part by the petitioner;
(D)
The circumstances causing the hardship do not similarly affect all or most properties in the vicinity of the petitioner’s land;
(E)
The request for a variance is not based exclusively on the applicant’s desire for increased financial gain from the property, or to reduce an existing financial hardship;
(F)
Granting the variance application will not be detrimental to the public health, safety or welfare, or injurious to other property within the area;
(G)
Granting the variance application will not have the effect of preventing the orderly use and enjoyment of other land within the area in accordance with the provisions of this Zoning Ordinance, or adversely affect the rights of owners or residents of surrounding property;
(H)
The degree of variance requested is the minimum amount necessary to meet the needs of applicant and to satisfy the standards in this section.
10-6.6
Neither the nonconforming use of lands, structures or buildings in the same zoning district, nor the permitted use of lands, structures or buildings in other zoning districts shall be considered as grounds for the issuance of a variance.
10-6.7
In granting any variance, the Board may prescribe reasonable and appropriate conditions and safeguards in conformity with this Ordinance.
(A)
Violations of such conditions and safeguards, when a part of the terms under which the variance is granted, shall be deemed a violation of this Ordinance.
(B)
A variance granted subject to a condition shall be permitted only so long as there is compliance with the condition.
(C)
In the event that any such condition is held invalid, for any reason, such holding shall have the effect of invalidating the variance granted and shall render the variance null and void.
10-6.8
The Board shall not, under any circumstances, grant a variance to permit a use otherwise prohibited in this Ordinance in the zoning district involved.
10-6.9
The Board shall not hear a variance application previously denied within one (1) year following denial, unless it finds a substantial change in conditions or circumstances has occurred.
(Ordinance 08-059, ex. A, adopted 5/27/08)
§ 10-7 Special Exceptions.
10-7.1
Purpose, Applicability and Effect
(A)
The purpose of a special exception shall be to authorize a modification of zoning standards applicable to particular types of development within any zoning district, which is consistent with the overall intent of the zoning ordinance and for which express standards are prescribed, but that requires additional review to determine whether the development with the modification is compatible with adjoining land uses and the character of the neighborhood in which the development is proposed.
(B)
An application for a special exception may be filed only for those modifications listed in Section 9-11 of this Ordinance. The special exceptions procedure shall be applicable only within the City limits.
(C)
Approval of an application for a special exception entitles the property owner to undertake the activity authorized under the exception notwithstanding any standards in the zoning district regulations to the contrary.
10-7.2
Application Requirements
(A)
An application for a special exception shall be made to the Community Development Department.
10-7.3
Processing of Application and Decision
(B)
The Board of Adjustment shall approve, approve with conditions, or deny the special exception application.
(C)
A special exception application shall be decided within thirty (30) days of the official filing date.
(D)
The applicant for a variance bears the burden of proof to demonstrate that a special exception should be granted.
10-7.4
Criteria for Approval
(A)
In deciding whether to approve, conditionally approve or deny the application for a special exception, the Board shall apply the standards in Section 9-11 governing the special exception. In addition, the Board shall consider whether the special exception will substantially and adversely affect the use of adjacent or neighboring property.
(B)
The Board may impose such conditions on the application for special exception as are necessary to prevent harm to adjacent or neighboring property.
10-7.5
No-Reapplication for One Year.
The Board shall not hear a special exception application previously denied within one (1) year following denial, unless it finds a substantial change in conditions or circumstances has occurred.
(Ordinance 08-059, ex. A, adopted 5/27/08)
§ 10-8 Change in Nonconforming Status.
10-8.1
Applicability and Effect
(A)
Application.
A property owner may apply to the Board of Adjustment for a change in the status of a nonconforming use or structure for the following matters:
(1)
Expansion of the land area of a nonconforming use;
(2)
Expansion of the gross floor area of a nonconforming structure;
(3)
Reconstruction of a nonconforming structure that has been destroyed;
(4)
Resumption of a nonconforming use previously abandoned;
(5)
The enlargement, expansion or repair of a nonconforming structure if such enlargement, expansion or repair does not increase the structure’s nonconformity; or
(6)
Encroachment on a zoning setback line.
(B)
Effect.
If the Board grants the application for a change in nonconforming status, modifications made in the nonconforming use, structure or lot that are consistent with the approved application shall have the same status and shall be subject to the same limitations as the original nonconformity under this Zoning Ordinance.
10-8.2
Decision
The Board shall process and decide the petition for a change in nonconforming status as a special exception in accordance with Section 10-7 of this Zoning Ordinance.
10-8.3
Criteria for Approval.
In deciding the application, the Board shall apply the following criteria:
10-8.4
Petition for Termination
(A)
A City official may petition the Board of Adjustment for termination in nonconforming status of a nonconforming use, nonconforming structure or nonconforming lot.
(1)
The Community Development Director shall be the responsible official for a petition seeking termination of nonconforming status.
(2)
If the Board grants the petition for termination of nonconforming status, the nonconforming use, nonconforming structure or nonconforming lot shall be deemed in violation of this Zoning Ordinance and shall be subject to any remedy for enforcement, as provided in Article XI of this Ordinance. Thereafter, the property owner may not seek reinstatement of nonconforming status.
(3)
The application shall include a concise statement of the reasons why the nonconforming status should be terminated, with specific reference to the rule(s) governing the nonconformity which the petitioner seeks to enforce and a detailed explanation of how granting the petition enforces the standards governing nonconforming status.
(B)
The Board may authorize or require the discontinuance of nonconforming uses or structures under any plan whereby the full value of the structure and facilities can be amortized within a definite time period, taking into consideration the general character of the neighborhood and the necessity for all property to conform to the requirements of this Ordinance.
(1)
All actions to discontinue a nonconforming use of land or structure shall be taken with due regard for the property rights of the person affected.
(2)
All actions to discontinue a nonconforming use of land or structure shall consider such property rights in light of the public welfare, character of the area surrounding the designated nonconforming use, and conservation and preservation of property.
(Ordinance 08-059, ex. A, adopted 5/27/08)