The purpose of this chapter is to provide mechanisms for obtaining relief from the provisions of this ULDC where hardship would otherwise occur. Two (2) forms of hardship are addressed. Section 11.01.00 addresses hardships that would be caused if nonconforming development were required to immediately come into compliance with this ULDC. Sections 11.02.00 and 11.03.00 address hardships that occur in a particular situation due to the characteristics of the land to be developed based on the required site design standards.

11.01.01.

Generally.

A.

Within the zoning and overlay districts established by this ULDC or amendments that may later be adopted there may exist lots, structures, or uses of land which were lawfully established before this ULDC was adopted, but which do not comply with the requirements set forth in this ULDC.

B.

It is the intent of section 11.01.00 to allow these nonconformities to continue until they are removed or discontinued. It is further the intent of this section that nonconformities shall not be enlarged upon, expanded or extended, nor be used as grounds for adding structures or uses prohibited elsewhere in the same district.

C.

Nonconforming uses are declared to be incompatible with permitted uses in the district where the nonconforming use is located.

D.

Nothing in section 11.01.01 shall be construed to prevent the ordinary and routine maintenance and repair of nonconforming structures or structures which contain nonconforming uses provided that:

1.

Repairs do not exceed ten (10) percent of the current replacement cost of the nonconforming portion of the structure, during any period of twelve (12) consecutive months; and

2.

The cubic content of the structure is not increased.

E.

A structure damaged or destroyed by any means to an extent of more than fifty (50) percent of its replacement cost at time of destruction shall be reconstructed only in conformity with the provisions of this ULDC.

F.

Fair market value, where required, shall be determined by reference to current statutory provisions pertaining to real estate assessment and the records of the county assessor.

G.

A structure that is damaged to an extent less than fifty (50) percent of the fair market value may be restored and occupied as before the damage, provided the following standards are met:

1.

Restoration shall be commenced within six (6) calendar months from the date damages were incurred.

2.

If reconstruction is not commenced within six (6) months, the reconstruction and use of the land or structure shall thereafter conform to the provisions of this ULDC.

H.

A nonconforming structure or a structure containing a nonconforming use that is declared by the administrator to be physically unsafe or unlawful due to lack of repairs and maintenance shall not thereafter be restored, repaired, or rebuilt except in conformity with the regulations of the zoning district in which it is located.

11.01.02.

Nonconforming lots of record.

A.

A single-family dwelling and permissible accessory structures may be constructed on a single lot of record in any zoning district where single-family dwellings are permissible, subject to the following requirements:

1.

The lot of record was established at or before the time of adoption of this ULDC;

2.

The lot of record is in separate ownership from adjacent lots with continuous frontage on the same street;

3.

The lot is nonconforming due to failure to meet standards for the zoning district for minimum lot area and/or minimum lot width; and

4.

The lot is developed in compliance with standards for front, side, and rear yard setbacks and building height for the zoning district in which it is located.

B.

Lots of record with continuous frontage, which became nonconforming at the time of adoption of this ULDC, shall meet the following requirements in order to be developed:

1.

The lots of record consist of two (2) or more lots, combinations of lots, and portions of lots which are in single ownership and have continuous frontage;

2.

A lot or a portion of a lot cannot meet the standards of the zoning district for lot area and lot width;

3.

The combination of lots shall be considered to be an undivided parcel for the purpose of developing according to the site design standards of the zoning district; and

4.

No portion of the undivided parcel shall be used or sold in a manner which does not comply with minimum lot area and minimum lot width requirements established by this ULDC.

11.01.03.

Nonconforming structures. A lawfully established structure that becomes nonconforming at the time of adoption of this ULDC may continue subject to the following requirements:

A.

The structure is nonconforming with only the following site design standards:

1.

Minimum lot area;

2.

Maximum lot coverage or impervious surface ratio;

3.

Maximum building height;

4.

Minimum front, side, and rear yard setbacks; and

5.

Other requirements regarding building location on the lot.

B.

The structure shall be in compliance with all other standards and requirements of this ULDC.

C.

The nonconforming structure shall not be enlarged.

D.

The structure or portion thereof may be altered to decrease its degree of nonconformity.

E.

If a nonconforming structure is moved for any reason for any distance, it shall be brought into conformance with the site design standards of the zoning district to which it is moved.

11.01.04.

Nonconforming uses. A lawfully established use that becomes nonconforming at the time of adoption of this ULDC may continue subject to the following requirements:

A.

A structure containing a nonconforming use shall not be enlarged, extended, constructed, reconstructed, moved, or structurally altered except to change the use to a use permitted in the zoning district in which it is located.

B.

A nonconforming use shall not be extended to occupy any land outside the existing structure devoted to the use. Any nonconforming use may be extended throughout any parts of a building which were manifestly arranged or designed for such use at the time of adoption or amendment of this ULDC.

C.

A nonconforming use which is superseded by a permitted use in a structure or structure and land in combination shall not be resumed.

D.

A nonconforming use of a structure or structure and land in combination that is discontinued or abandoned for six (6) consecutive months (except when government action impedes access to the premises) shall not be resumed. The structure, or structure and land in combination, shall not thereafter be used except in conformity with the regulations of the zoning district in which it is located.

11.01.05.

Termination of detrimental nonconforming structures and uses.

A.

There are found to be certain uses of land, buildings, and structures which have an adverse effect on the carrying out of the comprehensive plan. Such uses shall be discontinued after the time periods set out in subsection 11.01.05.B. below, irrespective of the requirements for nonconforming uses set forth in sections 11.01.00 through 11.01.04 above.

B.

The following uses shall be removed or made conforming within the specified amortization period. Said amortization period shall commence upon the effective date of this ULDC.

1.

Fences, walls, and vegetation which constitute a hazard by virtue of impairing sight distances at a curve or intersection shall be made conforming within sixty (60) days.

2.

All site design requirements for fencing, screening, or buffering of commercial or industrial uses, as set forth in chapters 4 or 5 of this ULDC, shall be met within sixty (60) days.

3.

Nonconforming open storage operations, such as truck parking, automobile wrecking, salvage material storage, and similar uses, shall be made conforming within sixty (60) days.

11.01.06.

Regulation of specific nonconforming structures.

A.

Nonconforming signs. (See section 7.04.00 regarding signs).

1.

The following provisions shall apply to signs which were approved and legally erected pursuant to sign standards in effect prior to the adoption of this ULDC, and which became nonconforming at the time of adoption of this ULDC.

2.

Nonconforming signs may stay in place until one (1) of the following conditions occurs:

a.

The sign deteriorates or is damaged to the extent that it becomes a hazard; or

b.

The sign has been damaged to such an extent that structural repairs are required to restore the sign. A structural repair is any repair necessary only to maintain the stability and safety of the sign.

3.

The owner of the sign shall obtain a permit for the continuation of the sign, subject to the restrictions of this section. Application for such permit shall be filed within ten (10) days of the notice of nonconformance. There shall be no charge for this permit. Failure to apply for such permit within ten (10) days shall result in waiver of the protections afforded nonconforming signs by this section and the display of such sign shall be thereafter unlawful.

4.

Minor repairs and maintenance of nonconforming signs shall be permitted. However, no structural repairs or changes in the size or shape of the sign shall be permitted except to make the sign comply with the requirements of this section.

5.

A nonconforming sign damaged by fire or other causes to the extent of more than fifty (50) percent of its assessed value shall not be repaired or rebuilt except in compliance with the standards for the type and location of sign.

6.

A nonconforming sign damaged by fire or other causes to the extent of more than fifty (50) percent of its assessed value which is not repaired or rebuilt in compliance with this section shall be removed from the lot, along with all associated debris, and disposed of appropriately.

7.

A nonconforming sign shall not be replaced by another nonconforming sign, except that the substitution or interchange of poster panels, painted boards, or dismountable material on nonconforming signs shall be permitted.

B.

Nonconforming signs along interstate highways. A legally erected interstate sign which became nonconforming on May 6, 2002, pursuant to the adoption of Ordinance 02-05, may be allowed to remain until purchased by the Georgia DOT, provided that the sign meets the requirements of state laws, rules and regulations governing such signs. Sign regulations are set forth in section 7.04.00 of this ULDC.

C.

Mobile homes/manufactured homes.

1.

All mobile homes located in a mobile home development shall provide documentation of compliance with the National Mobile Home Construction and Safety Act or compliance with specifications presented by the American National Standards Institute. Existing mobile homes within mobile home developments not in compliance with either of these standards are nonconforming.

2.

An existing, nonconforming mobile home which was lawfully permitted may be replaced with another mobile home of the same size meeting the requirement set forth in paragraph C.1. above and with the requirements of this chapter within sixty (60) days from the date of removal of the original mobile home.

D.

Nonconforming WCFs. WCFs in existence on the date of the adoption of this article which do not comply with the requirements of this article are nonconforming WCFs and are subject to the following provisions:

A.

The owner of any nonconforming WCFs may request an administrative approval for a minor modification from the administrator.

B.

Nonconforming WCFs may add additional antennas (belonging to the same carrier or other carriers) subject to administrative approval in section 7.05.04.

C.

Nonconforming WCFs which are hereafter damaged or destroyed by less than fifty (50) percent of the replacement value due to any reason or cause may be repaired and restored to their former use, location, and physical dimensions subject to obtaining a building permit, without otherwise complying with this article. A nonconforming WCF that is damaged or destroyed by more than fifty (50) percent of the estimated replacement value shall be made conforming to this article.

D.

Major modifications to nonconforming WCFs may be allowed only upon the granting of a conditional use by the zoning advisory board; provided, however, that an existing nonconforming WCF may be replaced by a support structure replacement administratively approved according to the provisions of section 7.05.03, in which event, after administrative approval and replacement, the support structure replacement shall be legally conforming.

(Ord. No. 09-07, 11-17-09; Ord. No. 14-06, § I(exh. A), 11-4-14)

11.02.01.

Generally.

A.

A variance may be granted where owing to special conditions, a literal enforcement of the provisions of the ULDC will, in an individual case, result in unnecessary hardship.

B.

A variance shall observe the spirit of this ULDC, secure public safety and welfare, and deliver substantial justice.

C.

The existence of a nonconforming use on adjacent land, buildings, or structures in the same or in other districts shall not constitute a reason for a variance.

D.

The zoning advisory board shall be responsible for consideration and a decision regarding requests for variances, pursuant to the notice and hearing requirements set forth in chapter 12.

E.

A variance may not be granted for actions specifically prohibited by this ordinance. A variance is to compensate for a dimensional standard in a real property which would prevent the property from complying with a zoning development regulation. Variances are only granted after a review process against specified approval criteria.

11.02.02.

Types of variances. A request for a variance shall be limited to the following dimensional standards: Maximum building height; minimum lot width; minimum lot area, required spacing for driveways; minimum front, side, or rear yard setbacks; or dimensional standards for parking or loading spaces or no curb and gutter for subdivisions in the RA zoning district. Requests other than those stated will constitute a request to amend this section of the ULDC through procedures set forth by subsection 12.02.11.

11.02.03.

Requirements for variances. A variance may be granted upon a finding by the zoning advisory board that all the following conditions have been met:

A.

There are extraordinary and exceptional conditions pertaining to the particular piece of property in question because of its size, shape, or topography that are not applicable to other lands or structures in the same zoning district;

B.

A literal interpretation of the provisions of this ULDC would deprive the applicant of rights commonly enjoyed by other properties of the zoning district in which the property is located;

C.

Granting the variance requested will not confer upon the property of the applicant any special privileges that are denied to other properties of the zoning district in which the applicant's property is located;

D.

The requested variance will be in harmony with the purpose and intent of this ULDC and will not be incompatible with the neighborhood or to the general public welfare;

E.

The special circumstances are not the result of the actions of the applicant;

F.

The variance requested is the minimum variance that will make possible the legal use of the land, building or structure; and

G.

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

11.02.04.

Specific requirements for a variance in a floodplain protection area. The following variance and appeals procedures shall apply to an applicant who has been denied a permit for a development activity or to an owner or developer who has not applied for a permit because it is clear that the proposed development activity would be inconsistent with the provisions of this ordinance. A request for a variance may be submitted by an applicant who has been denied a permit by the Henry County Development Plan Review Department or by an owner or developer who has not previously applied for a permit for the reasons stated herein above.

A.

Requests for variances from the requirements of this ordinance shall be submitted to the Henry County Planning and Zoning Department. All such requests shall be heard and decided in accordance with procedures to be published in writing by the Henry County Planning and Zoning Department. At a minimum, such procedures shall include notice to all affected parties and the opportunity to be heard.

B.

Any person adversely affected by any decision of the Henry County Planning and Zoning Department shall have the right to appeal such decision to the zoning advisory board as established by Henry County in accordance with procedures to be published in writing by the Henry County Zoning Advisory Board. At a minimum, such procedures shall include notice to all affected parties and the opportunity to be heard.

C.

Any person aggrieved by the decision of the Henry County Zoning Advisory Board may appeal such decision to the Henry County Board of Commissioners.

D.

Variances may be issued for the repair or rehabilitation of historic structures upon a determination that the proposed repair or rehabilitation will not preclude the structure's continued designation as an historic structure, and the variance issued shall be the minimum necessary to preserve the historic character and design of the structure.

E.

Variances may be issued for development necessary for the conduct of a functionally dependent use, provided the criteria of this section are met, no reasonable alternative exists, and the development is protected by methods that minimize flood damage during the base flood and create no additional threats to public safety.

F.

Variances shall not be issued within any designated floodway if any increase in flood levels during the base flood discharge would result.

G.

In reviewing such requests, the Henry County Stormwater Management Department and the Henry County Zoning Advisory Board shall consider all technical evaluations, relevant factors, and all standards specified in this and other sections of this article.

H.

Conditions for variances:

1.

A variance shall be issued only when there is:

a.

A finding of good and sufficient cause;

b.

A determination that failure to grant the variance would result in exceptional hardship; and

c.

A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, or the creation of a nuisance.

2.

The provisions of this ordinance are minimum standards for flood loss reduction; therefore, any deviation from the standards must be weighed carefully. Variances shall only be issued upon determination that the variance is the minimum necessary, considering the flood hazard, to afford relief; and, in the instance of a historic structure, a determination that the variance is the minimum necessary so as not to destroy the historic character and design of the building.

3.

Any person to whom a variance is granted shall be given written notice specifying the difference between the base flood elevation and the elevation of the proposed lowest floor and stating that the cost of flood insurance will be commensurate with the increased risk to life and property resulting from the reduced lowest floor elevation.

4.

The building and development division director or designee shall maintain the records of all appeal actions and report any variances to the Federal Emergency Management Agency upon request.

I.

Any person requesting a variance shall, from the time of the request until the time the request is acted upon, submit such information and documentation as the Henry County Planning and Zoning Department shall deem necessary to the consideration of the request.

J.

Upon consideration of the factors listed above and the purposes of this article, the Henry County Planning and Zoning Department and the Henry County Zoning Advisory Board may attach such conditions to the granting of variances as they deem necessary or appropriate, consistent with the purposes of this article.

K.

Variances shall not be issued "after the fact".

11.02.05.

Specific requirements for a variance to the aggregate signable area standard.

A.

A variance may be granted to allow more than five hundred (500) square feet of signable area where the following conditions are met:

1.

The property shall be zoned OI, MU, C-1, C-2, C-3, IAC, M-1, or M-2;

2.

The minimum land area for the project shall be ten (10) acres;

3.

The property shall be under unified control and management;

4.

All existing signs and structures within the property are in full conformance with the requirements of this ULDC;

5.

The granting of a variance shall not create negative impacts to adjacent properties, to the general public, or the purposes and intents of the sign standards in this ULDC; and

6.

Circumstances or conditions resulting from actions of the current or former owners shall not be grounds for a grant of a variance.

B.

The zoning advisory board shall consider the following additional factors to section 11.02.03 in determining whether to grant a variance:

1.

Size of buildings on the property;

2.

Potential to subdivide the property;

3.

Number of different businesses occupying the property.

C.

Granting a variance shall include the condition that the variance shall terminate upon any subdividing of the property.

11.02.06.

Requirement for a variance to the buffer.

A.

Where a parcel was platted prior to the effective date of the Stream Buffer Protection Ordinance, and its shapes, topography or other existing physical conditions prevent land development consistent with this ordinance, and Henry County Development Plan Review Department finds and determines that the requirements of this ordinance prohibit the otherwise lawful use of the property by the owner, the Administrator or Designee of Henry County may grant a variance from the buffer and setback requirement hereunder, provided such variance requires mitigation measures to offset the effects of any proposed land development on the parcel.

B.

No more than one hundred (100) square feet.

1.

The following land-disturbing activities are examples of projects not specifically listed in O.C.G.A. § 12-7-17(3) that would be considered minor land-disturbing activities and therefore, exempt from the Georgia Erosion and Sedimentation Act and the applicable buffer requirements for the state waters:

2.

Elevated structures such as decks, gazebos, patios, walkways, viewing platforms and/or open picnic shelters, provided:

a.

No more than one hundred (100) square feet of footprint of the elevated structure extends into or over the [buffer], with an exception for structures compliant with the Americans with Disabilities [Act];

b.

No grading, cutting, filling or similar land-disturbing activities occurring as a part of the site preparation, construction or subsequent development;

c.

The structure is built on posts, concrete blocks and/or similar supports;

d.

Permanent protective vegetative cover remains or protective measures (e.g., mulch, gravel) are installed within the footprint of the elevated structure to prevent post construction soil erosion;

e.

A natural canopy is left in sufficient quantity to keep shade on the stream bed;

f.

No concrete and/or asphalt slabs, pads or foundations constructed or placed as a part of the site preparation, construction or subsequent development.

3.

A pervious ground level walkway approach to a dock and/or similar structure, provided:

a.

No more than one hundred (100) square feet of the constructed walkway extends into the buffer, with an exception for structures compliant with ADA;

b.

No grading, cutting, filling or similar land-disturbing activities occurring as a part of the preparation, construction or subsequent development;

c.

No concrete and/or asphalt slabs, pads, supports or foundations constructed or placed as a part of the site preparation, construction or subsequent development;

d.

All ground preparation and walkway material placement is completed with use of hand held equipment.

4.

Restoration of buffer area after the removal of an existing structure, provided;

a.

No more than one hundred (100) square feet of the structure footprint is in the buffer; and

b.

The buffer area must be replanted with native vegetation.

5.

Maintenance or repair of existing structures, the failure of which would result in a threat to human health or state waters, such as sewer lines, water lines, dams, or gas lines. Total disturbance must be less than one hundred (100) square feet.

6.

Placement of rock riprap within the buffer not to exceed one hundred (100) square feet on any one (1) property, provided:

a.

The placement of the riprap does not result in soil disturbance outside the placement area; and

b.

No grading, cutting, filling or similar land-disturbing activities occurring as part of the site preparation, construction or subsequent development.

C.

The following land-disturbing activities are examples of projects that are NOT considered minor land-disturbing activities and therefore, NOT exempt from the Georgia Erosion and Sedimentation Act and the applicable buffer requirements for state waters:

1.

Any land-disturbing activity utilizing wheeled or tracked machinery and equipment resulting in soil erosion within the buffer;

2.

Paving with poured or prefab concrete and/or asphalt;

3.

Any project or combination or projects occurring within the same calendar year on the same property resulting in more than one hundred (100) square feet of any elevated structures and/or pervious ground level walkways within or extending into the buffer;

4.

Construction of a barbeque pit on a concrete and/or asphalt slab or pad within the buffer;

5.

Construction of a ground level patio within the buffer;

6.

Construction of a swimming pool within the buffer;

7.

Construction of a structural or decorative retaining wall within the buffer;

8.

Construction of a new seawall with land-disturbing activities occurring within the buffer; and

9.

Backfilling any new seawall construction within the buffer.

11.02.07.

Appeal of zoning advisory board actions. An appeal of a decision of the zoning advisory board shall be processed as set forth in section 12.05.00.

(Ord. No. 12-18, § I, 11-6-12)

The administrator shall have the power to reduce specific site design and development standards of this ULDC where the intent of the ULDC can be achieved and equal performance obtained by granting a waiver of standards. The authority to grant a waiver shall be limited to the following:

A.

A reduction in the minimum front, side, or rear yard setbacks for a single lot, provided the following standards are met:

1.

The reduction is necessary because of any one (1) of the following: geologic conditions, topography, the inability to adhere to tree protection standards set forth in section 5.03.00, or the zoning conditions set forth by the Henry County Board of Commissioners.

2.

The reduction is limited to a maximum of ten (10) percent of the minimum standard.

B.

A reduction in the parking requirements provided the following standards are met:

1.

The reduction is necessary because of geologic conditions, topography, or the inability to adhere to tree protection standards set forth in section 5.03.00.

2.

The reduction is five (5) spaces or five (5) percent, whichever is greater.

3.

The reduction does not limit the availability or location of required handicapped parking.

C.

Side yard requirements may be waived by the administrator, where a joint fall-out shelter is proposed, provided that permanent easements are recorded to ensure access to both parties (see section 7.02.03).

D.

The forty-foot buffer requirement can be reduced to a twenty-foot buffer with a decorative fence by the administrator pending an administrative review of the development plans.

E.

A waiver may be issued by the administrator from section 8.02.07 requiring a dust free parking surface, as long as the parking area consists of a pervious or semi-pervious material meeting the following conditions:

1.

There shall be a paved primary lot that serves the parking needs of customers and employees on a regular basis. Unpaved parking spaces may not count towards the parking requirements outlined in section 8.02.00 with the exception of spaces dedicated to employees of the business.

2.

Materials used for unpaved parking shall be approved by the Henry County Fire Department prior to installation.

3.

Unpaved parking areas shall be enclosed by a fence that restricts access to the area by the general public. All gates and locks shall be approved by the Henry County Fire Department prior to installation.

4.

The unpaved parking area shall meet the design standards for parking lots, with the exception of paving requirements, and including size of spaces, drive aisles, maneuvering areas, and stormwater management.

5.

There must be a paved driveway leading to the unpaved parking area that is a minimum of twenty-four (24) feet in length.

6.

Unpaved parking areas are subject to the landscaping provisions in section 5.01.00 and all landscaping is to be maintained on a permanent basis. Surfaces must remain grass and weed free.

The purpose of section 11.04.00 is to provide a method to recognize vested rights and works-in-progress that were authorized prior to the adoption of this ULDC.

11.04.01.

Applicability.

A.

Any property zoned PD (planned development) prior to the adoption of this ULDC shall be subject to all development agreements and approved master plans until such time the property is rezoned.

B.

Any property that has been rezoned prior to the adoption of this ULDC shall meet all zoning conditions imposed regardless of any zoning change caused by the ULDC until such time the property is rezoned.

C.

Applicant shall be vested in any permit approved prior to the adoption of the ULDC until such time as permit expires.

D.

All flag lots platted and recorded prior to the adoption of this ULDC shall be considered legal conforming lots of record.

11.05.01.

Generally. Several of the zoning districts contained herein permit certain uses subject to an approved conditional use. The evaluation of conditional use request and determination of compliance shall be the responsibility of the zoning advisory board. See chapter 4 for uses requiring a conditional use.

11.05.02.

Requirements for conditional uses. The zoning advisory board shall consider all of the following prior to making decisions on conditional uses:

A.

The proposed use shall not cause traffic congestion or conditions that will adversely affect other nearby properties in the area.

B.

The physical conditions of the site, including topography, drainage and size and shape, are suitable for the proposed development.

C.

There are adequate public facilities to serve the proposed use.

D.

The applicant has made a binding agreement for any specific limitations or conditions necessary to protect the public interest and assure the continued beneficial use and enjoyment of nearby properties or that no special limitations are necessary to protect the public.

E.

The conditional use with specific limitations and design features as may have been required will further the aims of the county land use plan and will not be unduly detrimental to nearby properties.

11.05.03.

Appeal of zoning advisory board actions. An appeal of a decision of the zoning advisory board shall be processed as set forth in section 12.05.00.