A board of adjustment is hereby established which shall consist of five members, each to be appointed for a term of three years by the mayor and approved by the city council. Vacancies shall be filled for the unexpired term of any member whose term becomes vacant. Members of the board may be removed for cause by the city council upon written charges and after a public hearing, provided, however, that the duly appointed members of said board, as established and appointed pursuant to prior enacted zoning ordinances, shall continue to serve as members of said board under the terms of this ordinance.

The board shall adopt rules necessary to conduct its affairs and in keeping with the provisions of this ordinance. 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 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, indicating such fact, and shall keep records of its examinations and of other official actions; all of which shall be immediately filed in the offices of the planning department and shall be a public record.

(Ord. No. 07-460, § 11, 6-28-2007)

Appeals to the board may be taken by any person aggrieved or by any officer, department, or board of the city affected by any decision of the zoning administrator. Such appeal shall be taken within a reasonable time, as provided by the rules of the board, by filing with the zoning administrator and with the board of adjustment a notice of appeal specifying the grounds thereof. The zoning administrator shall transmit forthwith to the board all papers constituting the record upon which the action appealed was taken.

A reasonable application fee, to be established by the adopted by-laws of the board of adjustment, must accompany the application for appeal, except that the application fee shall be $500.00 for a special exception or a variance for a wireless telecommunication tower other than a personal use or accessory tower as defined in section 73.20.1 hereof.

The board of adjustment shall fix a reasonable time for the hearing of the appeal, give public notice thereof, as well as due notice to the parties in interest, and decide the same within a reasonable time. Upon the hearing, any party may appear in person or by agent or by attorney.

(Ord. No. 00-620, § 2, 8-23-2000; Ord. No. 07-460, § 11, 6-28-2007)

An appeal stays all proceedings in furtherance of the action appealed from, unless the zoning administrator certifies to the board of adjustment after the notice of appeal shall have been filed with him that by reason of facts stated in the certificate a stay would, in his opinion, cause imminent peril to life or property. Such proceedings shall not be stayed otherwise than by a restraining order which may be granted by the board of adjustment or by a court of competent jurisdiction or notice to the zoning administrator and on due cause shown.

(Ord. No. 07-460, § 11, 6-28-2007)

The board of adjustment shall have the following powers and duties:

92.5.1. Administrative review. To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by the manager of inspection in the enforcement of this ordinance.

92.5.2. Special exceptions. To hear and decide only such special exceptions as the board of adjustment is specifically authorized to pass on by the terms of this ordinance; to decide such questions as are involved in determining whether special exceptions should be granted; and to grant special exceptions with such conditions and safeguards as are appropriate under this ordinance; or to deny special exceptions when not in harmony with the purpose and intent of this ordinance.

A special exception shall not be granted by the board of adjustment unless and until:

(1)

A written application for a special exception is submitted indicating the section of this ordinance under which the special exception is sought and stating the grounds on which it is requested;

(2)

Notice shall be given at least seven days in advance of public hearing by at least one advertisement in a newspaper of general circulation.

The owner of the property for which special exception is sought or his attorney shall be notified by mail;

(3)

The public hearing shall have been held. Any party may appear in person, or by agent, or by attorney;

(4)

The board of adjustment shall make a finding that it is empowered under the section of this ordinance described in the application to grant the special exception, and that the granting of the special exception will not adversely affect the public interest.

92.5.3. Permitted Uses as Special Exceptions. The Board of Adjustment may permit, as a special exception, the following uses in the specified district:

(1)

Semi-public, non-profit, recreational facilities in any residence district (except miniature golf courses).

(2)

Off-Premises Beer/Table Wine Retailers in Neighborhood Business C-1, Neighborhood Business C-2, General Business C-3, Highway Business C-4, Commercial Recreation C-5, Village Business C-6, Commercial Industrial Park, Light Industry, Research Park Commercial, Research Park 2, Airport Commercial and Heavy Industry districts within five hundred (500) feet of a church.

In addition to any other required notice, an applicant for a special exception to locate within five hundred (500) feet of a church must notify such church via mail.

(3)

Private off-street parking area in Residence 2-B District provided such area is adjacent to a business or industrial district.

(4)

Quarries, sand pits and gravel pits in Heavy Industry and Planned Industrial districts provided that the following conditions are met in addition to any other conditions imposed by the Board of Adjustment, to wit:

(a)

Setbacks. No area of extraction or storage of earth products or overburden material, except for the construction of site barriers as required by paragraph (b) below and shown on the approved site plan, and no parking shall be permitted within two hundred feet (200') of the extraction site boundaries, either above or below grade, or of any public right-of-way. The operation of stationary machinery such as sorters, crushers, or other processing devices shall not be permitted within five hundred feet (500') of the extraction site boundaries or of any public right-of-way unless the extraction site abuts a residential district, in which case the setback shall be one thousand feet (1,000'). Utility facilities (except service lines), administrative buildings, scale houses, and similar non-process facilities shall have a minimum setback of two hundred feet (200') from extraction site boundaries and public rights-of-ways. The setbacks described above, however, do not apply to boundaries shared with contiguous lawful extraction operations.

(b)

Screening. No grading, removal or disturbance of vegetation, except at points of ingress and egress, shall be permitted within two hundred feet (200') of the extraction site boundaries or any public right-of-way; provided, however, existing conditions may be modified to enhance screening of the extraction operation from view; and all areas of operation shall be effectively screened from view of surrounding uses to the extent practical by trees and shrubs, fences, walls or earth berms or a combination of same.

(c)

Street Access and Frontage. Any proposed extraction operation shall have at least 200 feet of frontage on an arterial or major collector street as designated on the Major Street Plan for the City of Huntsville, and no access shall be through any residential district except on an arterial or major collector street.

(d)

Performance Standards. Extraction activities shall be operated and maintained subject to the following minimum requirements.

(i)

Safety Measures. Appropriate safety measures shall be taken to control access to the subject property including, but not necessarily limited to, notices posted at intervals no greater than one hundred feet (100') along the extraction site boundaries and along any public rights-of-ways that shall warn against trespassing and shall contain a statement of the use of explosives, if applicable. The perimeter of all active extractive operations shall be enclosed by a fence not less than four feet (4') in height.

(ii)

Hydrologic Standards. Excavation activities shall be planned such that they minimize changes to the prevailing hydrologic conditions in both the extraction site and off-site areas. Changes in water quality and quantity, in the depth to ground water, and in the location of surface water drainage channels shall be minimized so that the future use of the area is not adversely affected.

(e)

Reclamation Standards. The reclamation of an extraction site shall be required and shall result in conditions appropriate for the expected future use of the site.

(i)

Full reclamation of the site as provided herein must commence immediately upon completion or termination of the extraction operation or following a dormant period of twelve (12) consecutive months as required by section 73.18.8.

(ii)

In all cases the final grades shall be appropriate for the expected future use.

(iii)

All final site drainage shall be designed, sloped, revegetated, or treated by other measures so that erosion and siltation shall be held to a minimum.

(iv)

All reclamation materials used in the grading of the site shall be non-perishable, non-hazardous materials, free from refuse or toxic contaminants and shall be compacted in a manner suitable for the expected future use. Final soil depths and types shall be appropriate for the expected future use.

(v)

Revegetation of the site to control dust and erosion and to restore organic vitality is required. The applicant must develop, through tree planting and seeding or sodding, complete vegetative cover sufficient to restore the site to the condition shown on the reclamation plan and to retain the soils, except on ponds and other surfaces not appropriate for vegetation.

(vi)

The site shall be maintained for a period of two years following completion of reclamation to ensure that vegetation is alive and well, that dead vegetation is replaced, that drainage is working properly, and that soil erosion is held to a minimum.

(f)

Accessory Uses. Permitted uses in Heavy Industry and Planned Industrial districts shall not be allowed within the boundaries of the special exception extraction site unless such use is specifically cited in the special exception approval.

(g)

Extraction Permit. The applicant shall demonstrate to the Board of Zoning Adjustment that an extraction permit application, based on compliance with the provisions of section 73.17, has been approved by the Director of the Department of Natural Resources and Environmental Management.

(h)

Performance Bond. The applicant shall post a bond or deposit a cash escrow with the City of Huntsville in accordance with the provisions of section 73.18 before approval by the Board of Zoning Adjustment shall become effective and before an extraction permit shall be issued.

(i)

Termination of Special Exception. The special exception and any variances granted within the extraction site subsequent to the approval of the special exception shall terminate at such time as the Director of Natural Resources and Environmental Management notifies the Zoning Administrator that a valid extraction permit for the site is not in effect and that the reclamation plan has been completed.

(5)

Private airport in any industrial district.

(6)

Cemetery in any district.

(7)

Multiple family dwellings, accessory structures, and uses in Research Park Commercial District provided that such dwellings conform to the following requirements and conditions in addition to any other conditions imposed by the Board of Adjustment, to wit:

(a)

Sidewalks not less than four (4) feet wide are required in the project area leading from all front and rear doors to streets. Sidewalks are also required along all property of the project abutting streets.

(b)

Closest permitted distance between any two apartment buildings shall be ten (10) feet for one-story buildings; fourteen (14) feet for two-story buildings or more.

(c)

Minimum distance from an apartment building to a parking space shall be eight (8) feet.

(d)

Minimum distance from front or side of an apartment building shall be fifty (50) feet to a major arterial right-of-way and twenty-five (25) feet to other public street rights-of-ways.

(e)

Minimum distance from either rear or side of apartment building to side and rear lot line shall be twenty-five (25) feet.

(f)

Minimum distance from front of one apartment building to front of another apartment building shall be twelve (12) feet, except when the apartment building has a height of twenty-five (25) feet or above then a thirty (30) feet distance is required.

(g)

Windows in all apartment buildings shall have not less than a twenty-foot view (measured perpendicularly from the window) unobstructed by other buildings located on the same parcel of land.

(h)

All yards abutting any street right-of-way shall be kept clear of off street parking, including parking structures, loading areas and vehicular access ways, except as necessary to cross a required yard, shall not be permitted within twenty (20) feet of any boundary of the Research Park Commercial District.

(i)

Lighting of off-street parking and vehicular use areas shall be in accordance with section 71.6 - PVA Lighting Requirements.

(j)

The landscape requirements shall be in accordance with section 53.8.

(k)

Maximum number of stories shall be in accordance with section 53.7.2 hereof.

(l)

The proposed development shall comply with requirements set forth in section 53.11.

(8)

Go-cart tracks and operation, model airplane flying, or other outdoor recreational facility creating loud noise, including fairs, carnivals and circuses, in General Business C-3, Highway Business C-4, Commercial Recreation C-5, Light Industry, Heavy Industry, Planned Industrial, Airport Industrial Park, Commercial Industrial Park, Heavy Manufacturing and Industrial Park districts.

(9)

Towers intended to support personal wireless service antennas in any residential district; approval shall be subject to the conditions contained in sections 73.20.4 - Lighting, 73.20.5 - Tower Color, 73.20.6 - Site Security, 73.20.8 - Structural Design of Towers, 73.20.9 - Signs, 73.20.10 - Access, 73.20.11 - Landscaping, 73.20.16 - Co-Location, and 73.20.17 - Building Permits for Towers of this ordinance, and to the following conditions:

(a)

Towers must be monopoles and must be designed to implode under stress; antennas used must be of the least visually obtrusive design available at the time of application.

(b)

A signed affidavit from the applicant verifying the inability to locate the proposed antennas on existing towers or other structures accompanied by supporting documentation as specified in Section 73.20.16 - Co-Location, and including substantial evidence that the tower cannot, by technical necessity, feasibly be located in a non-residential district.

(c)

Any new tower permitted must be designed to accommodate personal wireless service antennas for at least one additional user for a reasonable fee if technically feasible.

(d)

Accessory facilities shall be fully automated and shall not include offices, vehicle storage, outdoor storage, or broadcast studios.

(e)

Tower heights shall not exceed one hundred (100) feet.

(f)

Setbacks for towers shall be at least fifty feet (50') from all lot lines, and setbacks for accessory structures shall be a minimum of twenty (20) feet from all lot lines or as required for primary structures in the district if greater.

(g)

Towers shall not be permitted within the boundaries of any historic district listed on the National Register nor shall towers be located on the same lot with a residential structure.

(h)

Accessory buildings and security fences or walls shall be constructed so as to be compatible with the surrounding residential neighborhood by virtue of their design, materials, textures, and colors.

(i)

New towers permitted on mountain tops or slopes should be clustered with existing towers, if any, to the extent that such location is technically feasible and safe as well as aesthetically, environmentally and visually compatible.

(j)

The Board of Adjustment shall act upon any application for authorization to place, construct or modify any personal wireless service facility, whether for a special exception or a variance, within a reasonable period of time after the application and all required supporting documentation is duly filed, taking into account the nature and scope of such application.

Any decision by the Board of Adjustment to grant or deny an application to place, construct, or modify any personal wireless service facility, whether for a special exception or a variance, shall be in writing and supported by substantial evidence contained in the record.

(10)

Fallout shelters for more than two families in any residence district.

(11)

Laundry or dry cleaning operation in a neighborhood business district, provided no flammable fluids are used, no open discharge of steam, and not more than five (5) people are employed.

(12)

Private schools, nurseries, kindergartens and child care centers in any residential district when operated as an accessory use to any permitted use other than a family dwelling, provided that the Zoning Administrator concurs and that all property owners within 500 (five hundred) feet have been notified of the public hearing.

Group child care homes in all residential districts, except Residence 2-B districts, provided that the restrictions listed in section 73.1.1.(4) have been met, that all property owners within 500 (five hundred) feet have been notified of the public hearing, and that such special exception shall be granted only to the applicant, shall not be transferable to any other person, firm or corporation, and shall terminate at such time as the group child care home ceases operation.

(13)

Two-family house in a Light Industry District.

(14)

Theatres, not including drive-in theatres, in Neighborhood Business C-1, C-2, General Business C-3, Central Business C-B, Highway Business C-4, Commercial Industrial Park, Research Park Commercial and Light and Heavy Industry districts.

(15)

Drive-in theatres only in Light and Heavy Industry Districts.

(16)

Commercial heliports and/or helipads in the following districts: General Business C-3, Highway Business C-4, Medical, and Light Industry districts.

(17)

Private sidewalk or patio seating for on-premises alcoholic beverage retailers in Neighborhood Business C-1, Neighborhood Business C-2, Village Business C-6 and Research Park 2 districts, when it can be determined that such use will not be a nuisance to nearby residences.

(18)

Expanded hours for on-premises retail sale, service, dispensing, or consumption of alcoholic beverages in a Neighborhood Business C-1, Neighborhood Business C-2, or Research Park 2 districts between midnight and 2 a.m. provided all of the following conditions are met in addition to any other conditions that may be imposed by the Board of Adjustment:

(a)

Approval shall be for the licensee only and for no more than three (3) years.

(b)

Each time a licensee applies for a Board of Adjustment approval, the licensee shall notify all residents within five hundred (500) feet by mail of the request at least ten (10) days prior to the date of the Board of Adjustment meeting.

(c)

Licensed establishments shall be at least 250 feet from a single family residential zoning district and shall not be located on a local street; provided, however, where the portion of the residential district falling within the required separation distance has been put to a non-residential use or the land is unusable for residential purposes, then the separation requirement shall not apply.

(d)

Separation distances shall be measured from the edge of the parking lot or the exterior wall of the licensed establishment, whichever is closer to the residential district.

(e)

The Board of Adjustment shall have no authority to grant variances to preceding conditions (a) through (d) or to extend hours of service beyond what is provided for herein.

(19)

Indoor firing ranges, as a primary use, in Light Industry, Heavy Industry and Disposal Storage districts only, and as an accessory use to a permitted use in Planned Industrial, Research Park, Research Park West, Research Park Applications and Airport Industrial Park districts, provided that in either case of primary use or accessory use, the following conditions are met in addition to any other conditions imposed by the Board of Adjustment, to wit:

(a)

Where the indoor firing range is a primary use, as opposed to an accessory use as hereinabove provided, there shall be no fewer than three (3) off-street parking spaces per firing lane or stall for patrons of the range.

(b)

All Building Code requirements and all standards promulgated by the Inspection Director of the City of Huntsville, Alabama, with regard to the construction and performance of indoor firing ranges shall be met.

(c)

Where the property on which the use is situated is contiguous to a residential zoning district, the structure housing the use shall not be situated nearer than fifty (50) feet to the residentially zoned property.

(d)

The sale or consumption or possession of alcoholic beverages on the premises shall be prohibited.

(20)

AM radio broadcast towers, towers for mobile or fixed point radio antennas, and any other telecommunications towers not otherwise covered by section 73.20.1 - Applicability that will not be designed, constructed, and available to accommodate multiple users for a proposed location in any non-residential district. Approval shall be subject to:

(a)

Submittal of scaled site plans and other supporting drawings and documents sufficient to demonstrate compliance with the provisions of section 73.20 hereof.

(b)

Written documentation by the applicant demonstrating why installation of a single user tower would better serve the goals of the Zoning Ordinance than would a tower designed to accommodate multiple users.

(c)

The Board of Adjustment shall act upon any application for authorization to place, construct or modify any personal wireless service facility, whether for a special exception or a variance, within a reasonable period of time after the application and all required supporting documentation is duly filed, taking into account the nature and scope of such application.

Any decision by the Board of Adjustment to grant or deny an application to place, construct, or modify any personal wireless service facility, whether for a special exception or a variance, shall be in writing and supported by substantial evidence contained in the record.

(21)

Broadcast towers supporting one or more UHF or VHF television or FM radio broadcast or other similar broadcast antenna in any district; approval shall be subject to the provisions of sections 73.20.6 - Security, 73.20.8 - Structural Design, 73.20.9 - Signs, 73.20.10 - Access, 73.20.11 - Landscaping, 73.20.16 - Co-Location, and 73.20.17 - Building Permits of this ordinance and to the following conditions:

(a)

Because it is the intent of this ordinance to minimize the number of towers and their visual impact on the city, any new television tower that is permitted shall be capable of supporting at a minimum two UHF antennas and one FM antenna in addition to other radio service antennas and microwave dishes.

(b)

If a new tower is approved for a currently operating television licensee, then the existing tower must be removed and any antennas on the existing tower transferred to the newly permitted tower or to other existing towers. There should never be more television towers in the city than there are television licensees, and it is the intent of this ordinance that the number of television towers should decrease over time as licensees co-locate on new towers.

(c)

Setbacks for broadcast towers shall be the greater of 25% of tower height (including antennas) or the longest distance between the perimeter of the tower base and a guy anchor plus a fifteen-foot (15') setback from any lot line for each guy anchor.

(d)

Broadcast towers must be located so that in the event of tower or structure failure, the tower cannot strike another tower or tower support structure.

(e)

Applications to locate broadcast towers in residential districts must contain written documentation demonstrating why it is essential for the tower to be so located accompanied by evidence that the tower cannot be located in a non-residential district.

(f)

Tower lighting shall be the minimum required to comply with federal regulations, and tower height shall be the minimum necessary to serve the licensed area.

(22)

Indoor facilities for the discharge of BB guns in Highway Business C-4, Commercial Recreation C-5, Light Industry, Heavy Industry, and Disposal Storage districts subject to prior approval of the application by the Chief of Police and compliance with the provisions of Ordinance No. 97-171 as the same may be amended. Special exception approval by the Board of Adjustment shall be granted only on a specific event basis and approval shall specify the time period during which the special exception is valid. In addition, the following conditions shall apply:

(a)

All building code requirements and all standards promulgated by the Building Inspector of the City of Huntsville with regard to the construction and performance of indoor firing ranges for BB guns shall be met;

(b)

The structure housing such use shall not be situated nearer than fifty feet to residentially zoned property; and

(c)

The sale or consumption or possession of alcoholic beverages on the premises shall be prohibited.

(23)

Indoor facilities for the discharge of paintball guns in Light Industry, Heavy Industry, Disposal Storage, and Commercial Recreation C-5 districts. In addition to any other conditions imposed by the Board of Adjustment, the following conditions shall apply:

(a)

The structure housing such use shall not be situated nearer than fifty (50) feet to residentially zoned property.

(b)

Off-street parking spaces shall be provided in accordance with Article 71 - Off-Street Parking and Vehicular Use Area Landscaping Requirements. The number of parking spaces provided shall be at least one parking space for each 300 square feet of floor area.

(c)

All noises emanating from the facility shall comply with the City of Huntsville Noise Control Regulations, as the same may be amended, and further, that where an indoor facility for the discharge of paintball guns adjoins residentially zoned property, the sound of firearm discharge and the sound of projectile impact shall not be audible at or beyond the property line.

(d)

Guns used for paintball shall be discharged only within the indoor paintball structure.

(e)

The sale, consumption or possession of alcoholic beverages on the premises shall be prohibited.

(24)

Outdoor paintball playing fields in Heavy Industry and Disposal Storage districts, provided the following conditions are met in addition to any other conditions imposed by the Board of Adjustment:

(a)

Applicant must demonstrate evidence of legal control of the proposed paintball site.

(b)

The external boundaries of the paintball site must be at least 500 feet from any residential use, residentially zoned district or recorded residential subdivision, place of worship, school or daycare facility, provided, however, the separation distance restriction may be waived where the residential district or residential areas cannot be developed within 500 feet of the paintball site due to the existence of a floodway. The distance established herein shall be measured from the property line of the outdoor paintball range to the property line of the affected use.

(c)

A buffer strip 200 feet deep along the perimeter of the site, along all rights-of-ways, and adjacent to structures must be maintained, and no play shall be permitted within this buffer; provided, however, this buffer may be waived or modified by the Board of Adjustment if in the opinion of the Board of Adjustment such waiver or modification will not be disruptive or detrimental to the surrounding area.

(d)

A 20 foot high, nylon mesh screen shall be installed around each area of play, each tune-up area, and each other such area where guns may be discharged. This screen shall be anchored at the bottom and secured by a non-stretchable cable at the top and bottom. Two such screens shall be installed a minimum of five feet apart to separate the spectator area from the areas set forth above in this subsection 24(d).

(e)

Off-street parking spaces shall be provided in accordance with Article 71 - Off-Street Parking and Vehicular Use Area Landscaping Requirements. The number of parking spaces provided shall be equal to one parking space for each 300 square feet of area of play.

(f)

Standards of operation must be submitted as part of the Board of Adjustment application and shall become part of any approval. Standards shall include all pertinent information including a description of the equipment to be used, the hours of operation, the buffer strip, nylon mesh screen, and procedures needed to minimize any noise, litter, lighting, traffic, or other forms of pollution created by the proposed operation that may have an adverse impact on the proposed paintball range, as well as surrounding properties.

(g)

A site plan (1" = 200') showing the buffer strip; the nylon mesh screen; location of any permanent structures on the site; designated areas of play, staging, tune-up and spectators; adjacent rights-of-ways; vehicular and pedestrian circulation, including points of access to the site, loading and unloading areas, and areas for employee and customer parking; restroom facilities; landscaping; and any other proposed facilities, and a copy of the official zoning map on which are shown the exact boundaries of the paintball site shall be submitted with the Board of Adjustment application.

(h)

No outdoor lighting shall be allowed other than for building access, parking area and signs. Nighttime use of a paintball range may be permitted if in the opinion of the Board of Adjustment such use will not be disruptive to the surrounding area. In these cases, playing, staging, tune-up and spectator areas will be required to be lighted.

(i)

Hours of operation shall be from 7:00 a.m. to 12 midnight, provided, however, in no case shall hours of operation continue after dark unless the field is artificially lighted in accordance with 24(h) above.

(j)

Guns used for paintball shall be discharged only on the paintball field within the approved designated areas of play.

(k)

The sale, consumption or possession of alcoholic beverages on the premises shall be prohibited.

(l)

No outdoor storage shall be allowed.

(25)

Hotels, motels, and bed & breakfasts in Neighborhood Business C-1, C-2, and Village Business C-6 districts.

(26)

Parking lots as a primary use in Neighborhood Business C- 1, Neighborhood Business C-2 and Village Business C-6 districts.

(27)

Radio and television studios but not broadcast towers in Neighborhood Business C-1 and C-2 districts when located on a major arterial.

(28)

Hotels and motels in Research Park Application, Research Park Applications 2, and Research Park 2 districts.

(29)

Special event retailers in all residential districts.

(30)

In Heavy Industry districts only: abattoir, stockyards; manufacture of acetylene gas, acid, ammonia, or chlorine, bleaching chemicals, powder, alcoholic beverages; asphalt manufacturing, limestone drying; auto wrecking, or storage of wrecked autos for purpose of used parts sales; blast furnaces, boiler and tank works; bag cleaning; central mixing plant for cement mortar or paving materials; processing, incineration or storage of dead animal materials, including curing, tanning and storage of hides, distillation of bones, coal, fat rendering, candle making, fertilizer manufacture, glue size, and gelatin manufacture; manufacture of paint, turpentine, varnish, soap and tar products, disinfectants and dyestuff; wool pulling or scouring; cement, lime, gypsum or plaster of Paris manufacture; salvage yards; paper and pulp manufacture; ore reduction; junk, scrap metal, rags, paper, cotton waste, storage or baling; gasoline and L.P. Gas bulk storage plants.

(31)

Special Retailers as an accessory use to banquet halls or cultural venues where such uses are permitted in Neighborhood Business C-1, Neighborhood Business C-2, General Business C-3, Highway Business C-4, Commercial Recreation C-5, Light Industry, Heavy Industry, Commercial Industrial Park, Research Park Commercial and Research Park 2 districts provided all of the following conditions are met in addition to any other conditions that may be imposed by the Board of Adjustment:

(a)

The Special Retail license is available only to organizations.

(b)

Approval shall be for the licensee only and for no more than three (3) years.

(c)

Each time a licensee applies for a Board of Adjustment approval, the licensee shall notify all residents within five hundred (500) feet by mail of the request at least ten (10) days prior to the date of the Board of Adjustment meeting.

(d)

The Special Retail license is only for scheduled events and shall not constitute the primary use of the property.

(e)

In Neighborhood Business C-1 and Neighborhood Business C-2 Districts only: there shall be no outdoor entertainment.

(f)

The Special Retail license, along with a listing of all conditions prescribed by the Board of Adjustment, must be clearly posted in a conspicuous location.

(g)

The Board of Adjustment shall have no authority to grant variances to the preceding conditions (a) through (f).

(32)

Photovoltaic Solar Energy System, On-Site, as an accessory use to a non-residential use in a residential zoning district, provided the conditions in section 73.1.1(5) for on-site solar energy systems in residential districts are met in addition to any other conditions that may be imposed by the Board of Adjustment.

(33)

Photovoltaic Solar Energy Production Facility, as a primary use in all non-residential zoning districts except for Residential Office and Office districts, provided all of the following conditions are met in addition to any other conditions that may be imposed by the Board of Adjustment:

(a)

Area of use may not exceed five (5) acres onsite with no aggregation of solar collection panels on adjacent properties which exceeds five (5) acres.

(b)

Solar energy production facilities shall adhere to the setback and height requirements of the district in which they are located.

(c)

Abutting residential properties shall be visually screened from the project through any one or combination of the following: plantings, existing vegetation or fencing (not to exceed eight [8] feet in height). The screening, capable of providing year round screening, shall be provided along the non-reflective sides of the solar energy production facility or collection of facilities.

(d)

The manufacturers' or installers' identification, the facility owners' name and contact information, and the appropriate warning signage shall be posted on or near the panels in a clearly visible manner.

(e)

All electrical interconnection and distribution lines within the project boundary, except for power lines that leave the project or are within the substation, shall be underground, unless determined otherwise by the Zoning Board of Adjustment because of severe environmental constraints.

(f)

Lighting of the solar energy production facility and accessory structures shall be limited to the minimum necessary.

(g)

Drawings that clearly illustrate the design of the solar energy production facility shall be submitted as part of the Special Exception application package. The Board of Adjustment may apply aesthetic consideration when approving the design of the solar energy production facility.

(h)

The installation of a solar energy production facility shall not cause to apply the requirements of Article 70 — Off-Street Parking and Loading Requirements or of Article 71 — Off-Street Parking and Vehicular Use Area (PVA) Landscaping Requirements.

(i)

Any solar energy production facility that has not been in use for its original purpose for a period of one hundred and eighty (180) days shall be deemed to be abandoned. The solar energy production facility owner and/or the property owner shall have an additional ninety (90) days to remove the abandoned solar energy system and any appurtenant structures or to reactivate the solar energy system.

(34)

Entertainment, as entertainment is defined herein, in restaurants, as restaurants are defined herein, located in Neighborhood Business C-1 and C-2 districts provided all of the following conditions are met in addition to any other conditions that may be imposed by the Board of Adjustment:

(a)

Approval shall be for the licensee only and for no more than three (3) years.

(b)

Each time a licensee applies for a Board of Adjustment approval, the licensee shall notify all residents within five hundred (500) feet by mail of the request at least ten (10) days prior to the date of the Board of Adjustment meeting.

(c)

The entertainment shall not be audible outside the interior of the licensed premises.

(d)

No entertainment shall be permitted and no entertainment shall be audible in the areas of any private sidewalk, courtyard or patio seating.

(e)

No entertainment shall be permitted after 11:00 p.m.

(f)

The Board of Adjustment shall have no authority to grant variances to preceding conditions (a) through (e).

(35)

Alcoholic Beverage Manufacturers that conduct tastings or samplings on the licensed premises (with or without entertainment) shall be permitted as a Special Exception in General Business C-3, Highway Business C-4, Village Business C-6, Light Industry, Heavy Industry, Commercial Industrial Park, Airport Commercial, Research Commercial and Research Park 2 districts.

(36)

Farmers markets located in Residence 1, Residence 1-A, Residence 1-B, Residence 1-C, Residence 2, Residence 2-A, Residence 2-B, Residence 2-C, Neighborhood Business C-1, Neighborhood Business C-2, Village Business C-6, Research Park and Research Park 2 districts.

(37)

Metal siding as an exterior building finish provided the following conditions are met in addition to any other conditions that may be imposed by the Board of Adjustment:

(a)

Exterior building finish must be constructed with an architectural composite metal panel or similar architectural composite panel.

(b)

Pre-finished metal siding, steel siding, ribbed or corrugated metal siding materials are not permitted exterior building finishes.

(c)

Exposed fasteners are not permitted.

(38)

Temporary, seasonal outdoor agricultural retail sales, such as Christmas tree and pumpkin patch retail sales, located in Neighborhood Business C-1, Neighborhood Business C-2, General Business C-3, Village Business C-6, Research Park West, Research Park Commercial and Research Park 2 districts. Uses shall be in accordance with front yard provisions listed under subsections 73.15.3 and 73.15.4, if applicable. Farmers markets do not pertain to this provision and shall be in accordance with subsection 92.5.3(36).

(39)

Brewpubs (within brewpub areas), (with or without entertainment) shall be permitted as a Special Exception in General Business C-3, Highway Business C-4, Commercial Recreation C-5, Light Industry, and Heavy Industry districts.

In granting any special exception, the Board of Adjustment may prescribe appropriate conditions and safeguards in conformity with this ordinance in order to mitigate the impact of the use to surrounding uses and to otherwise protect the public health, safety and general welfare. Violation of such conditions and safeguards, when made a part of the terms under which the special exception is granted, shall be deemed a violation of this ordinance and punishable under Section 91.5 - Penalties of this ordinance.

(Ord. No. 25-157, § 1, 4-24-2025)

92.5.4 Variances. To authorize upon appeal in specific cases such variance from the 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 result in unnecessary hardship, and so that the spirit of this ordinance shall be observed and substantial justice done.

(1)

A variance from the terms of this ordinance shall not be granted by the board of adjustment unless and until:

(a)

A written application for a variance is submitted that includes the basis for the request.

(b)

Notice of public hearing shall have been given as in section 92.5.2(2) above.

(2)

Applicable state statutory and common law shall apply to a variance request.

(3)

The board may make appropriate findings consistent with applicable law.

(4)

The board shall have no authority to grant variances that would amend the duly adopted final plat or the attached conditions, if any, for a planned development district. Amendments or alterations to approved planned development districts shall be as provided for in section 30.5.8 (PD, changes in approved final plans).

(5)

A violation of the terms of a variance shall be deemed a violation of this ordinance and punishable under Section 91.6, Penalties, hereof.

92.5.5. Abatement of Nuisances. The board of adjustment may require the conduct of any use, conforming or nonconforming, which results in unreasonable noise, smoke, gas, vibration, fumes, dust, fire, or explosion hazard or nuisance to surrounding property to be modified or changed to abate such hazard to health, comfort, and convenience. The board of adjustment may direct the zoning administrator to issue an abatement order, but such order may be directed only after a public hearing by the said board, notice of which shall be sent by registered mail to the owners and/or operators of the property on which the use is conducted in addition to due notice by advertisement in a newspaper of general circulation; such notification shall be mailed at least seven days prior to the date of such public hearing. A hearing to consider issuance of an abatement order shall be held by the board of adjustment either upon petition signed by any person affected by the hazard or nuisance or upon the initiative of the board. An abatement order shall be directed by the board of adjustment only upon reasonable evidence of hazard or nuisance and such order shall specify the date by which the hazard or nuisance shall be abated.

(Ord. No. 96-259, § 2, 5-23-1996; Ord. No. 96-1008, § 6, 1-23-1997; Ord. No. 97-336, § 1, 6-12-1997; Ord. No. 00-620, § 3, 8-23-2000; Ord. No. 01-269, § 1, 5-24-2001; Ord. No. 02-196, §§ 3, 4, 4-25-2002; Ord. No. 03-285, § 3, 5-22-2003; Ord. No. 05-013, § 4, 2-10-2005; Ord. No. 05-141, § 1, 4-14-2005; Ord. No. 06-1201, § 4, 1-25-2007; Ord. No. 07-460, § 11, 6-28-2007; Ord. No. 07-1194, § 2, 2-28-2008; Ord. No. 09-1053, § 7, 12-17-2009; Ord. No. 10-180, § 1, 4-22-2010; Ord. No. 11-11, § 15, 2-24-2011; Ord. No. 11-895, § 2, 1-26-2012; Ord. No. 12-466, § 3, 8-23-2012; Ord. No. 13-482, § 1, 7-11-2013; Ord. No. 15-315, § 3, 6-25-2015; Ord. No. 15-406, § 3, 7-23-2015; Ord. No. 15-677, §§ 3, 4, 10-22-2015; Ord. No. 15-758, § 13, 11-19-2015; Ord. No. 15-760, § 3, 11-19-2015; Ord. No. 15-907, § 1, 1-28-2016; Ord. No. 16-89, §§ 2, 3, 3-24-2016; Ord. No. 16-91, §§ 1—4, 3-24-2016; Ord. No. 16-795, § 1, 11-17-2016; Ord. No. 16-781, § 1, 11-17-2016; Ord. No. 17-585, § 1, 2, 9-28-2017; Ord. No. 18-65, § 1, 3-22-2018; Ord. No. 18-230, § 4, 5-24-2018; Ord. No. 18-446, § 2, 7-26-2018; Ord. No. 18-720, § 1, 10-25-2018; Ord. No. 19-936, § 3, 11-21-2019; Ord. No. 21-46, § 2(b), 2-25-2021; Ord. No. 22-237, § 3, 5-26-2022)

In exercising the above mentioned powers, the board may, in conformity with the provisions of this ordinance, reverse or affirm wholly or partly, or may modify the order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the zoning administrator.

The concurring vote of four members of the board shall be necessary to reverse any order, requirement, decision or determination of any manager of inspection, 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 this ordinance.

(Ord. No. 07-460, § 11, 6-28-2007)

Any person or persons aggrieved by any decision of the board of adjustment may seek review by a court of competent jurisdiction in the manner provided by the laws of the State of Alabama.