The Board of Zoning Adjustment, hereinafter referred to as the "BZA", as prescribed by Code of Alabama, 1975, § 11-52-80, as amended, shall have the following powers and authority.

(Ord. No. 3099, 6-27-22)

The BZA shall have hear and decide appeals where it is alleged that an error exists in any order, requirements, decision or determination made by an administrative official in the enforcement of this Ordinance, in accordance with the following.

12.2.1. All appeals shall be filed in writing on forms prescribed by the Board and made available by the Zoning Official. Any such appeal shall be filed with the Zoning Official within 15 days of the date of the action being appealed. The Zoning Official shall forthwith transmit to the BZA papers constituting the record upon which the action appealed was taken.

12.2.2. In exercising the power of administrative review the BZA must apply, not vary, the terms of the Ordinance.

12.2.3. An appeal stays all proceedings in furtherance of the action appealed therefrom, unless the Zoning Official certifies to the BZA after the notice of appeal has been filed, that by reason of facts cited in such certification a stay would, in the Zoning Official's opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed otherwise than by a restraining order which may be granted by the BZA or by a court of record.

12.2.4. The BZA shall select a reasonable time and place for hearing the appeal. Notice shall be provided in accordance with §12.7 Notice Requirement.

12.2.5. The BZA may affirm, reverse wholly or in part, or modify the Zoning Official's decision, order, or determination as in its opinion ought to be done, and to that end shall have all the powers of the Zoning Official.

Furthermore, the BZA may classify a use, which is not specifically mentioned, along with a comparable permitted use for purpose of the use regulations of any Zoning District.

(Ord. No. 3099, 6-27-22)

The BZA shall hear and decide requests for approval of Special Exceptions uses in accordance with the following:

12.3.1. Special Exception uses shall require the submission of an application to the BZA. Such application shall be filed with the Zoning Official at least 30 days before the scheduled hearing date before the BZA. The application shall be filed by the property owner or their authorized agent on a form made available by the Zoning Official. Notice shall be provided 15 days in advance and as otherwise in accordance with §12.7 Notice Requirement.

12.3.2. The BZA shall review the application for compliance with this Ordinance and all other applicable codes and ordinances of the City. In particular the BZA shall determine that satisfactory provisions have been made concerning the following, among other considerations of this Ordinance:

1.

Access to and from the property and the proposed structure and/or uses, with particular attention to vehicular and pedestrian safety and convenience, traffic flow and control, and emergency access.

2.

The location and accessibility of off-street parking and loading areas.

3.

The location and accessibility of refuse and service areas and their potentially adverse affects upon surrounding properties.

4.

The screening and buffering of potentially adverse views and activities from surrounding properties.

5.

Control of noise, glare, odor, surface water runoff, and other potentially disturbing impacts upon surrounding properties.

6.

The availability, location, and capacity of utilities.

7.

The location and scale of signs and lighting with particular reference to traffic safety, glare, and visual compatibility with surrounding properties.

8.

The bulk, density, and lot coverage of structures, and yards and open areas, with reference to their compatibility with the character of the surrounding area.

12.3.3. The Board may impose such conditions for approval that it deems necessary in the particular case to protect the public interest and the intent of the Comprehensive Plan and this Ordinance in relation to the items listed above and as may otherwise be reasonably necessary. Such conditions shall apply to the land, structure, and use for which the Special Exception is granted and not to a particular person. Violations of conditions lawfully attached to any Special Exception shall be deemed to be violations of this Ordinance.

12.3.4. A Special Exception granted by the BZA shall lapse and be of no effect if, after the expiration of one year from the date of such action by the BZA, no construction or change in use pursuant to such Special Exception has taken place, provided that the BZA may, for good cause shown, specify a longer period of time in conjunction with its action to grant the Special Exception.

(Ord. No. 3099, 6-27-22)

The BZA may authorize upon appeal in specific cases such variances 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 the Ordinance shall be observed and substantial justice done. Such variance may be granted in such individual case of unnecessary hardship upon a finding by the BZA that the conditions outlined below do, in fact, exist. In no case shall the BZA grant a variance that permits the permanent use of land, building or structure for a use prohibited within the district in which the land, building or structure is located. Nor shall the BZA grant a variance, which permits the extension or addition of a non-conforming use or in any way makes a non-conforming use more permanent.

It is the intent of this Ordinance that variances be used only to overcome some physical condition of a parcel of land, which poses a practical difficulty to its development and prevents its owner from using it in conformance with this Ordinance. Any variance granted shall be the minimum adjustment necessary for the reasonable use of the land.

12.4.1. Procedure. Applications shall be filed with the Zoning Official at least 30 days before the scheduled hearing date before the BZA. The property owner or authorized agent shall file the application on a form made available by the Zoning Official. Notice shall be provided 15 days in advance and otherwise in accordance with §12.7 Notice Requirement.

12.4.2. Before any variance is granted, the BZA must find that all of the following conditions exist:

1.

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

2.

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

3.

All literal interpretations of the provisions of this Ordinance would deprive the applicant of rights commonly enjoyed by other owners of property in the district in which the property is located.

4.

The requested variance will be in harmony with the purpose and intent of this Ordinance and will not be injurious to the neighborhood or to the general welfare.

5.

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

6.

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

7.

That no non-conforming use of neighboring lands, structures, or buildings in the same district, and no permitted or non-conforming use of lands, structures, or building in other districts shall be considered grounds for the issuance of a variance.

8.

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

12.4.3. In proving that an unnecessary hardship has been imposed on the property as a result of the strict interpretation of this Ordinance, the following conditions cannot be considered pertinent to the determination of whether or not an unnecessary hardship exists.

1.

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

2.

Personal or economic hardship.

3.

Self-imposed hardship.

In other words, hardship alone is not sufficient to permit variance. It must be an "unnecessary hardship". Mere financial loss of a kind, which might be common to all of the property owners in a district, is not an "unnecessary hardship."

12.4.4. A Variance granted by the BZA shall lapse and be of no effect if, after the expiration of one year from the date of such action by the BZA, no construction pursuant to such Variance has taken place, provided that the BZA may, for good cause shown, specify a longer period of time in conjunction with its action to grant the Variance.

(Ord. No. 3099, 6-27-22)

The BZA may require the conduct of any use, conforming or non-conforming, which results in unreasonable noise, smoke, gas, vibration, fumes, dust, fire, radio interference or explosion hazard or nuisance to surrounding property to be modified or changed to abate such hazard to health, comfort, and convenience. The BZA may direct the Building Official 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 in which the use is conducted in addition to due notice by advertisement in a newspaper of general circulation. A hearing to consider issuance of an abatement order shall be held by the BZA either upon petition signed by a person affected by the hazard or nuisance and such order shall specify the date by which the hazard or nuisance shall be abated.

(Ord. No. 3099, 6-27-22)

12.6.1. All decisions rendered by the BZA shall be final and binding upon all parties. No appeal of an administrative decision, or decision on an application for a variance or a special exception shall be reheard, and no further application shall be accepted once a decision has been rendered except under one or more of the following conditions:

1.

New evidence or information pertinent to the request has been discovered which was not available to the applicant at the time of the original hearing.

2.

The decision resulted from an error in procedures required by this Ordinance or State law and made by the BZA, the Zoning Official, or any other City Officials.

3.

The decision resulted from an error in substantive law under the provisions of this Ordinance or the Code of Alabama, 1975, as amended.

12.6.2. Where no error is alleged and no new evidence is available, a new or more effective presentation by the applicant shall not constitute grounds for rehearing a decision of the BZA. Any applicant wishing a rehearing shall appear before the BZA to present one or more of the qualifying conditions listed in this Section.

12.6.3. If the BZA finds that one or more of the qualifying conditions exist, the applicant may submit a new application. This new application shall be heard at a subsequent BZA meeting, and shall be subject to all regular advertising and procedural requirements. Allowing a new application does not obligate the BZA to grant the request.

(Ord. No. 3099, 6-27-22)

The BZA shall not grant any variance, exception or conduct any other public hearing regarding any other request without first giving written notice a minimum of 15 days prior to the proposed date of such public hearing to all owners of property located adjacent or contiguous to the boundaries of the property which is subject to the requested variance, exception or other business, as shown by the records of the office of the Tax Assessor of the applicable County on a date not more than 90 days prior to the date of such notice. Such notice shall state the street address of the property, if any, which is the subject of the proposed variance, exception or other request to such proposal and that the said property owner is welcome to attend the public hearing and invited to speak on the issue if he or she so desires. Such notice shall be deemed given when deposited in the United States mail, certified mail-return receipt requested, first class postage prepaid, addressed to such property owners at their addresses as shown on the records of the office of the Tax Assessor of the applicable County on the date such owners are determined. Any error in the address of any notice shall not invalidate the giving of notice, provided that no more than five percent of the total number of notices given with respect to the applicable hearing contain any such error.

(Ord. No. 3099, 6-27-22)

Any party aggrieved by any final judgment or decision of the BZA may, within 15 days thereafter appeal there from to the circuit court or court of like jurisdiction, by filing with the BZA a written notice of appeal specifying the judgment or decision from which appeal is taken. In case of such appeal, the BZA shall cause a transcript of the proceedings in the case to be certified to the court to which the appeal is taken and the cause in such court shall be tried de novo.

Service of a notice of appeal on the City Clerk by an aggrieved party within the 15 day appeal time constitutes service on the BZA.

(Ord. No. 3099, 6-27-22)