An appeal from any decision of an administrator or board may be taken as follows by any person aggrieved.

12.1.1. Zoning regulation appeals provisions.

1.

Board of Adjustment: appeals: how taken.

(a)

Appeals; hearings; notice. Appeals to the Board of Adjustment concerning any order, requirement, decision or determination made by the Land Development Regulation Administrator may be taken by any person aggrieved or by any officer, agency or bureau of the county affected by any such action of the Land Development Regulation Administrator. Such appeals shall be taken by filing, within 30 days after rendition of any such order, requirement, decision or determination, with the Land Development Regulation Administrator a written notice of appeal specifying the grounds thereof. In addition, appeals to the Board of Adjustment for land development regulations shall be taken by a property owner of the property subject to the appeal or his or her agent, or any officer, agency or bureau of the county by filing a written notice of appeal with the Land Development Regulation Administrator.

Before rendering a decision upon an appeal, the Board of Adjustment shall hold a public hearing. The Board of Adjustment shall fix a reasonable time for the hearing, [and] give public notice thereof, as well as due notice to the parties involved. In addition, in the case of an appeal for special exception or variance, the Land Development Regulation Administrator shall erect a sign advertising the appeal on a prominent position on the land in question and clearly visible to the public. At the hearing, any party may appear in person or by agent or attorney. Appellants may be required to assume such reasonable costs as the Board of County Commissioners may determine through action in setting fees to be charged for appeals.

(b)

Stay of proceedings. An appeal stays all proceedings in furtherance of the action appealed from, unless the Land Development Regulation Administrator from whom the appeal is taken certifies to the Board of Adjustment after the notice of appeal is filed that, by reason of facts stated in the certificate, a stay would, in the Land Development Regulation Administrator's opinion, cause imminent peril to life and property. In such case, proceedings shall not be stayed other than by a restraining order which may be granted by the Board of Adjustment or by a court of record on application, on notice to the Land Development Regulation Administrator from whom the appeal is taken and on due cause shown.

(c)

Decisions. The concurring vote of a majority of the members of the Board of Adjustment who are present and voting shall be necessary to reverse any order, requirement, decision, or determination of the Land Development Regulation Administrator or to decide in favor of the appellant in respect to any matter upon which it is required to pass under the terms of article 4 of these land development regulations or to effect any variance of article 4 of these land development regulations.

(d)

Appeals from decisions of Board of Adjustment. Wherever in these land development regulations the Board of Adjustment is required to make a final decision, said final decision shall be final provided that any persons, jointly or severally aggrieved by decisions of the Board of Adjustment, or any officer, department, board, commission or bureau of the county, aggrieved by said decision may, within 30 days after said decision is rendered, appeal said decision to the Board of County Commissioners by filing a written notice of appeal specifying the grounds thereof with the Land Development Regulation Administrator.

2.

Appeals from decisions of Planning and Zoning Board. Wherever in article 4 of these land development regulations the Planning and Zoning Board is required to make a final decision rather than an advisory recommendation, said decision shall be final provided that any person or persons, jointly or severally aggrieved by said decision of the Planning and Zoning Board, or any officer, department, board, commission, or bureau of the county aggrieved by said decision may, within 30 days after said decision is rendered, appeal said decision to the Board of County Commissioners by filing a written notice of appeal specifying the grounds thereof with the Land Development Regulation Administrator.

12.1.2. [Reserved.]

Editor's note— Ord. No. 2011-16, § 3, adopted June 16, 2011, repealed § 12.1.2, which pertained to flood damage prevention regulations appeals provisions, and derived from Ord. No. 97-14, § 3, 12-18-97.

12.1.3. Minimum housing regulation appeals provisions.

1.

Any person receiving written notice from the Land Development Regulation Administrator of deficiencies in his or her property under article 9 of these land development regulations may within 30 days following the date of such notice enter an appeal to the Board of Adjustment, and file the same in writing with the Land Development Regulation Administrator.

Such appeal shall state the location of the property, the date of the notice of violations, and the number of such notice. The appellant must state the modification requested, the reasons therefor, and the hardship or conditions upon which the appeal is made.

2.

Where the literal application of the requirements of article 9 of these land development regulations would appear to cause undue hardship on an owner or tenant, or when it is claimed that the true intent and meaning of article 9 of these land development regulations have been misconstrued or wrongly interpreted, the owner of such building or structure, or their authorized agent, may appeal the decision of the Land Development Regulation Administrator.

[12.1.4. Reserved.]

12.1.5. Hazardous building regulations appeal provisions.

1.

Form of appeal. Any person served notice in accordance with the provisions of article 10 may appeal such action of the Land Development Regulation Administrator under this article to the Board of Adjustment. Such appeal must be filed in writing with the Land Development Regulation Administrator within 30 days from the date of service and must contain at least the following information:

(a)

Identification of the building or structure concerned by street address or legal description.

(b)

A statement identifying the legal interest of each appellant.

(c)

A statement identifying the specific order or section being appealed.

(d)

A statement detailing the issues on which the appellant desires to be heard.

(e)

The legal signatures of all appellants and their official mailing addresses.

2.

Hearing particulars. Upon the filing of an appeal, the Board of Adjustment shall as soon as practicable fix a date, time and location for the hearing of the appeal. Written notice of the time and location of the hearing shall be mailed to each appellant at the address on the appeal by certified mail, return receipt requested.

3.

Failure to appear. Failure of any person to appear at the hearing set forth in accordance with the provisions of this article shall constitute a waiver of his or her right to an appeal on the notice.

4.

Scope of appeal. The hearing shall offer the appellant reasonable opportunity to be heard on only those specific matters or issues raised by the appellant in his or her appeal.

The appellant may appear at the hearing in person or through his or her attorney or other designated representative.

5.

Staying of notice under appeal. Enforcement of any notice issued by the Land Development Regulation Administrator under the provisions of this article shall be held in abeyance during the course of an appeal to article 10 herein.

12.1.6. Historic preservation regulation appeals provisions. Within 15 days of the agency decision any person may appeal to the Board of County Commissioners any decision of the agency on an application for a certificate of appropriateness. If during that 15-day period an appeal is made to the Board of County Commissioners, the decision of the agency shall automatically be stayed pending the Board of County Commissioners review. The Board of County Commissioners shall approve, approve with modifications or disapprove the application.

12.1.7. Appeals general. For appeal procedures for all articles of these land development regulations not specifically described above, the following shall apply:

1.

An appeal from any final order or decision of the Land Development Regulation Administrator may be taken to the Board of Adjustment by any person aggrieved. An appeal is taken by filing with the Land Development Regulation Administrator a written notice of appeal specifying the grounds therefor. A notice of appeal shall be considered filed with the Land Development Regulation Administrator when delivered to the office of the Land Development Regulation Administrator. The date and time of filing shall be entered on the notice by county staff.

2.

An appeal must be taken within 30 days after the date of the decision or order appealed from.

3.

Whenever an appeal is filed, the Land Development Regulation Administrator shall forthwith transmit to the Board of Adjustment all the papers constituting the record relating to the action appealed from.

4.

An appeal stays all actions by the Land Development Regulation Administrator seeking enforcement of or compliance with the order or decision appealed from, unless the Land Development Regulation Administrator certifies to the Board of Adjustment that (because of the facts stated in the certificate) a stay would, in the Land Development Regulation Administrator's opinion, cause imminent peril to life or property. In that case, proceedings shall not be stayed except by order of the Board of Adjustment or a court of record on application, on notice to the Land Development Regulation Administrator from whom the appeal is taken and on due cause shown.

5.

The Board of Adjustment may reverse or affirm (wholly or partly) or may modify the order, requirement or decision or determination appealed from and shall make any order, requirement, decision or determination that in its opinion ought to be made in the case before it. To this end, the Board of Adjustment shall have all the powers of the officer from whom the appeal is taken.

(Ord. No. 97-14, § 13, 12-18-97; Ord. No. 2011-16, § 3, 6-16-2011)

12.2.1 Board of Adjustment: powers and duties: special exceptions. The Board of Adjustment shall have the power to hear and decide upon appeals in specific cases such special exceptions as the Board of Adjustment is specifically authorized to pass on under the terms of article 4 of these land development regulations; to decide such questions as are involved in the determination of when special exceptions should be granted; and to grant special exceptions with appropriate conditions and safeguards or to deny special exceptions when they would not promote the public health, safety, morals, order, comfort, convenience, appearance, prosperity or the general welfare.

Appropriate conditions and safeguards may include, but are not limited to, reasonable time limits within which the action for which the special exception is requested shall be begun or completed, or both. 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 these land development regulations and punishable as provided in these land development regulations.

If the Board of Adjustment shall deny a special exception, it shall state fully in its record its reasons for doing so. Such reasons shall take into account the factors stated in this article, or such of them as may be applicable to the action of denial, and the particular regulations relating to the specific special exception requested, if any.

The procedure for taking an appeal for a special exception shall be as set forth in this article, and in addition, a special exception shall not be granted by the Board of Adjustment unless and until:

1.

Written petition. A written petition for special exception is submitted by the applicant indicating the section of article 4 of these land development regulations under which the special exception is sought and stating the grounds on which it is requested, with particular reference to the types of findings which the Board of Adjustment must make under this article below. The petition should include material necessary to demonstrate that granting the special exception would promote the public health, safety, morals, order, comfort, convenience, appearance, prosperity, or the general welfare. Such material shall include, but is not limited to the following: (1) site and development plans at an appropriate scale showing proposed placement of structures on the property; provisions for ingress and egress, offstreet parking and offstreet loading areas, and refuse and service areas; and required yards and other open spaces; (2) plans showing proposed locations for utility hook-up; (3) plans for screening and buffering with reference as to type, dimensions, and character; (4) proposed landscaping; and signs and lighting, including type, dimensions, and character. Where these land development regulations place additional regulations on specific special exceptions, the petition should demonstrate that such requirements are met.

2.

Findings. Before any special exception shall be granted, the Board of Adjustment shall make a specific finding that it is empowered under article 4 of these land development regulations to grant the special exception described in the petition, and that the granting of the special exception would promote the public health, safety, morals, order, comfort, convenience, appearance, prosperity, or the general welfare. Before any special exception shall be granted, the Board of Adjustment shall further make a determination that the specific rules governing the individual special exception, if any, have been met by the petitioner and that, further, satisfactory provision and arrangement has been made concerning the following matters, where applicable:

(a)

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.

(b)

Offstreet parking and loading areas, where required, with particular attention to the items in (a) above and the economic, noise, glare, or odor effects of the special exception on adjoining properties and properties generally in the district.

(c)

Refuse and service areas, with particular reference to the items in (a) and (b) above.

(d)

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

(e)

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

(f)

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

(g)

Required yards and other open space.

(h)

Considerations relating to general compatibility with adjacent properties and other property in the district including but not limited to:

(1)

Conformity with the county's comprehensive plan and the effects upon the county's comprehensive plan;

(2)

The existing land use pattern;

(3)

The impact of the proposed use upon the load on public facilities such as schools, utilities, and streets;

(4)

Changed or changing conditions which find the proposed use to be advantageous to the community and the neighborhood;

(5)

The impact of the proposed use upon living conditions in the neighborhood;

(6)

The impact of the proposed use upon traffic congestion or other public safety matters;

(7)

The impact of the proposed use upon drainage;

(8)

The impact of the proposed use upon light and air to adjacent areas;

(9)

The impact of the proposed use upon property values in the adjacent area;

(10)

The impact of the proposed use upon the improvement or development of adjacent property in accordance with existing regulations; and

(11)

The impact of the proposed use with regard to the scale of needs of the neighborhood or the county.

3.

Limitations on subsequent written petition for a special exception. No written petition by an owner of real property for a special exception for a particular parcel of property, or part thereof, shall be filed with the Land Development Regulation Administrator until the expiration of 12 calendar months from the date of denial of a written petition for a special exception for such property, or part thereof, unless the Board of Adjustment specifically waives said waiting period based upon a consideration of the following factors:

(a)

The new written petition constitutes a proposed special exception different from the one proposed in the denied written petition.

(b)

Failure to waive said 12-month waiting period constitutes a hardship to the applicant resulting from mistake, inadvertence, or newly discovered matters of consideration.

(Ord. No. 97-14, § 14, 12-18-97; Ord. No. 04-34, § 2, 9-23-04)

The specific provisions of this section apply to the following portions of these land development regulations. Not all portions of these land development regulations provide for variances to the requirements contained therein. This is due to the inappropriateness of granting variances to such specific regulations [such] as, but not limited to, the use of land, hazardous building requirements, and historic site designation.

12.3.1. Variances to zoning regulations. The Board of Adjustment shall have power to authorize upon appeal such variance from the terms of these land development regulations as will not be contrary to the public interest and where, owing to special conditions peculiar to the property and not the result of the actions of the applicant, a literal enforcement of these land development regulations would result in unnecessary and undue hardship.

In granting a variance to the provisions of article 4 of these land development regulations, the Board of Adjustment may prescribe appropriate conditions and safeguards in conformity with such regulations including, but not limited to, reasonable time limits within which the action for which variance is requested shall be begun or completed, or both. Violation of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation of these land development regulations.

Under no circumstance shall the Board of Adjustment grant a variance to permit a use not permitted under the terms of these land development regulations in the zoning district involved, or any use expressly or by implication prohibited by the terms of these land development regulations in the zoning district.

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

The procedure for taking an appeal for a variance shall be as set forth in this article, and, in addition, a variance shall not be granted by the Board of Adjustment unless and until:

12.3.1.1. Written petition. A written petition for a variance from the terms of these land development regulations is submitted by the applicant indicating the section of these land development regulations from which the variance is sought and stating the grounds on which it is requested, with particular reference to the types of findings which the Board of Adjustment must make under section 12.3.1.2 below.

12.3.1.2. Findings. In order to authorize any variance from the terms of these land development regulations, the Board of Adjustment must find:

1.

Special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures, or buildings in the same zoning district.

2.

The special conditions and circumstances do not result from the actions of the applicant.

3.

Granting the variance requested will not confer on the applicant any special privilege that is denied by these land development regulations to other lands, buildings, or structures in the same zoning district.

4.

Literal interpretation of the provisions of these land development regulations would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms of these land development regulations and will not be contrary to the public interest and where, owing to conditions peculiar to the property and not the result of actions of the applicant, a literal enforcement of these land development regulations would not [sic] result in unnecessary and undue hardship.

5.

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

6.

The grant of the variance will not be contrary to the public interest and where, owing to conditions peculiar to the property and not the result of actions of the applicant, a literal enforcement of these land development regulations would not [sic] result in unnecessary and undue hardship.

7.

Limitations on subsequent written petition for a variance. No written petition by an owner of real property for a variance for a particular parcel of property, or part thereof, shall be filed with the Land Development Regulation Administrator until the expiration of 12 calendar months from the date of denial of a written petition for a variance for such property, or part thereof, unless the Board of Adjustment specially waives said waiting period based upon a consideration of the following factors:

(a)

The new written petition constitutes a proposed variance different from the one proposed in the denied written petition.

(b)

Failure to waive 12-month waiting period constitutes a hardship to the applicant resulting from mistake, inadvertence, or newly discovered matters of consideration.

12.3.2. Variances to the subdivision regulations. Where the Board of County Commissioners finds that compliance with the design standards for lot and street layout of the provisions of article 5 of these land development regulations would cause unusual or extraordinary difficulties because of exceptional and unique conditions of topography, access, location, shape, size, drainage, or other physical features of the site, it may grant a variance from the subdivision regulations found herein so that substantial justice may be done and the public interest secured; provided, that the public interest is protected and the development is in keeping with the general spirit and intent of these land development regulations. No such variance shall be granted if it would have the effect of nullifying the intent and purpose of these land development regulations. No such variance shall be granted if the conditions or circumstances are the result of actions of the applicant. Furthermore, no variance shall be granted from the required improvements as specified within article 5 of these land development regulations.

12.3.2.1. Conditions. In granting variances and/or modifications, the Board of County Commissioners may require such conditions as will, in the judgment of the Board of County Commissioners, secure substantially the objectives of the standards for requirements so varied or modified.

12.3.2.2. Procedures. Variances may be granted upon written request of the subdivider setting forth the reasons for each variance. A petition for any such variance shall be submitted in writing by the subdivider to the Land Development Regulation Administrator for the consideration of the Planning and Zoning Board, in conjunction with the submission of the preliminary plat.

The Planning and Zoning Board shall handle such matter in a public session as part of a previously prepared agenda. The Planning and Zoning Board shall submit its report and recommendation to the Board of County Commissioners.

Within a reasonable time after receiving the Planning and Zoning Board report and recommendation, the Board of County Commissioners shall by majority vote either approve, approve with conditions, or deny the request. Such matters shall be handled in a public session as part of a previously prepared agenda.

12.3.3. [Reserved.]

Editor's note— Ord. No. 2011-16, § 4, adopted June 16, 2011, repealed § 12.3.3, which pertained to variances to flood damage prevention regulations, and derived from the original codification.

(Ord. No. 2011-16, § 4, 6-16-2011)