It is the purpose of this article to provide for the establishment of a board of adjustment and appeals and to define the powers, duties and administrative procedures of the board.

(Ord. No. O-614-20, Exh. A, 1-13-2020)

The board of adjustment and appeals is hereby established. The board of adjustment and appeals shall be appointed and the composition shall be in conformance with Code of Ala. 1975, § 11-52-80, as amended.

(Ord. No. O-614-20, Exh. A, 1-13-2020)

Meetings of the board of adjustment and appeals shall be held at the call of the chairman and at such other times as the board may determine. The 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.

(Ord. No. O-614-20, Exh. A, 1-13-2020)

The board of adjustment and appeals shall keep minutes of its proceedings, showing the vote of each member upon each question or if absent or failing to vote, indicating such fact, and shall keep records of its examinations and of other official actions, all of which shall be immediately filed in the planning and building department and shall be a public record.

(Ord. No. O-614-20, Exh. A, 1-13-2020)

The following powers and duties are granted the board of adjustment and appeals:

(1)

Administrative review. To hear and decide appeals where it is alleged there is any error in any order, requirement, decision or determination made by the enforcing officer in the enforcement or administration of this chapter, such as:

a.

Hear and decide upon requests for the interpretation of the provisions of this chapter; or

b.

Determination of the precise location of boundary lines between zoning districts when there are uncertainties. The boundary lines shall be interpreted as per section 24-33, interpretation of zoning district and overlay district boundaries.

(2)

Special exceptions. Within this chapter, there are certain exceptions to these regulations specifically identified, and the board of adjustment and appeals is authorized to hear and decide such special exceptions; to decide such questions as are involved in determining whether special exceptions should be granted; and to ensure that special exceptions are granted only when they conform to the spirit and intent of this chapter. In exercising this authority, the board shall follow the language of this chapter exactly and shall make certain that all the conditions specified in this chapter have been met. The board of adjustment and appeals may not consider granting special exceptions, except when specifically authorized by this chapter. A special exception shall not be granted by the board unless and until:

a.

A written application for a special exception is submitted to the building department indicating the section of this chapter under which the special exception is sought and stating the grounds on which it is requested.

b.

Notice shall be given at least 15 days in advance of public hearing. The owner of the property for which the special exception is sought or his agent shall be notified by mail. Notice of such hearings shall be posted on the property for which the special exception is sought, at city hall, and in one other public place at least 15 days prior to the public hearing.

c.

Any party may appear at the public meeting so held, in person or by agent or attorney.

d.

The board shall make a finding whether it is empowered under the section of this chapter described in the application to grant the special exception, and whether the granting of the special exception will be in the public interest.

e.

Before any special exception shall issue, the board shall make written findings certifying compliance with the specific rules governing individual special exceptions and that satisfactory provision and arrangement has been made concerning the following, where applicable:

1.

Ingress and egress to property and proposed structures thereon with particular reference to automotive and pedestrian safety and convenience, traffic flow and control, and access in case of fire or catastrophe.

2.

Off-street parking and loading areas where required, with particular attention to the items in subsection (2)e.1. of this section and the economic, noise, glare or odor effects of the special exception on adjoining properties and properties generally in the zoning district.

3.

Refuse and service areas, with particular reference to the items in subsections (2)e.1. and (2)e.2. of this section.

4.

Utilities, with reference to locations, availability, and compatibility.

5.

Screening and buffering with reference to type, dimensions and character.

6.

Signs, if any, and proposed exterior lighting with reference to glare, traffic safety, economic effect and compatibility and harmony with properties in the zoning district.

7.

Required setbacks and other open spaces.

8.

General compatibility with adjacent properties and other property in the zoning district.

(3)

Variances. To authorize upon appeal in specific cases such variances from the terms of this chapter as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of this chapter will result in unnecessary hardship, and so that the spirit of the chapter shall be observed and substantial justice done. Such variance may be granted in such individual case of unnecessary hardship upon a finding by the board of adjustment and appeals that the conditions outlined below do, in fact, exist. In no case shall the board grant a variance that permits the use of property, buildings or structures for a use prohibited by this chapter or by the use regulations for the zoning district in which the property, buildings or structures are located. Nor shall the board grant a variance, which permits the extension or addition of a nonconforming use or in any way makes a nonconforming use more permanent. Before any variance is granted, the board shall consider and comply with the following specific rules:

a.

There are extraordinary and exceptional conditions, which are peculiar to the particular piece of property in question because of its physical features (size, shape or topography) that may or may not be applicable to other lands or structures in the same zoning district.

b.

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

c.

A literal interpretation of the provisions of this chapter would deprive the applicant of rights commonly enjoyed by other residents of the zoning district in which the property is located.

d.

The requested variance will be in harmony with the purpose and intent of this chapter and will not be injurious to the neighborhood, or otherwise detrimental to the public welfare.

e.

The special circumstances are not the result of the actions of the applicant (i.e., self-imposed hardship, not performing due diligence).

f.

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

g.

That no nonconforming use of neighboring property, structures, or buildings in the same zoning district, and no permitted or nonconforming use of property, structures, or buildings in other zoning districts shall be considered grounds for the issuance of a variance.

h.

That the variance will not allow the establishment of a use not permissible under the terms of this chapter in the zoning district involved, or any use expressly or by implication prohibited by the terms of this chapter in said zoning district.

i.

In proving that a hardship has been imposed on the property as a result of the strict interpretation of this chapter, the following conditions cannot be considered pertinent to the determination of a hardship:

1.

Proof that a variance would increase the financial return from the land.

2.

Personal hardship.

3.

Self-imposed hardship.

j.

Minimum variance allowable. In granting variances, the board of adjustment and appeals shall grant only the minimum variance that will make possible the reasonable use of the property, buildings, or structures. Further, the board of adjustment and appeals may require such conditions and safeguards as deemed appropriate to ensure the intent of this chapter.

k.

A building permit must be applied for and acquired within six months after receiving approval for a special exception or variance from the board of adjustment and appeals. If not, the request for a special exception or variance must be resubmitted to the board of adjustment and appeals and will be subject to any changes to the city's zoning ordinance and building codes.

(Ord. No. O-614-20, Exh. A, 1-13-2020)

(a)

In exercising the powers in section 24-704, powers and duties, the board of adjustment and appeals upon receipt of a written application may, so long as such action is in conformity with the terms of this chapter, reverse or affirm, wholly or partly, or may modify the order, requirement, decisions or determination as ought to be made, and to that end shall have the power of the administrative official from whom the appeal is taken.

(b)

The concurring vote of five members of the board shall be necessary to reverse any order, requirement, decision or determination of the administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under this chapter, or to effect any variation in the application of this chapter.

(Ord. No. O-614-20, Exh. A, 1-13-2020)

Any party aggrieved by any final judgment or decision of the board of adjustment and appeals may within 15 days thereafter appeal to the circuit court of like jurisdiction. In case of such appeal, the board shall cause a transcript of the proceedings in the case to be certified to the court in which such appeal is taken and the case in such court be tried de novo.

(Ord. No. O-614-20, Exh. A, 1-13-2020)