The zoning board of appeals shall have the power and duty to hear and decide appeals where it is alleged by the appellant that there is error in any final order, requirement, or decision made by an administrative official based on or made in the enforcement of the zoning ordinance.
Sec. 27-904. - Rules of procedure.
The board shall conduct its meetings in accordance with the procedures contained in this division and chapter. The board shall further adopt rules of procedure governing the conduct of its meetings. The rules of procedure shall be consistent with the provisions of this chapter. In any case where the rules do not address a procedural issue which arises before the board, Robert's Rules of Order shall prevail. The board may from time to time amend its rules by majority vote. A copy of the adopted Rules of Procedure and any subsequent amendment thereto shall be filed by the secretary with the clerk of the commission and copies of the rules shall be made available to the public by the secretary of the board and the clerk of the commission.
(Ord. No. 99-11, Pt. 1, 4-13-99) Sec. 27-905. - Hearings open to public.
All hearings of the board shall be open to the public and the agenda for each board hearing shall be made available to the public at least fifteen (15) days prior to any meeting of the board.
(Ord. No. 99-11, Pt. 1, 4-13-99)
Sec. 27-906. - Quorum, voting, and actions by board.
A quorum of the board shall consist of four (4) members of the board. A quorum is necessary for the board to take official action. A member who has withdrawn from the meeting without being excused as provided herein shall be counted as present for the purpose of determining whether a quorum is present. All actions of the board shall be taken by majority vote. A roll call vote shall be taken upon the request of any member.
(Ord. No. 99-11, Pt. 1, 4-13-99)
Sec. 27-907. - Annual organizational meeting.
At its first regular meeting in January, the board shall, by majority vote of its membership, excluding vacant seats, elect one (1) of its members to serve as chairperson and preside over the board's meetings and one (1) member to serve as vice chairperson. The persons so elected shall serve in these capacities for terms of one (1) year. Vacancies may be filled for the unexpired terms only by majority vote of the board membership, excluding vacant seats. The chairperson and vice chairperson may take part in all deliberations and vote on all issues. The chairperson and/or the vice-chairperson may be elected to successive terms without limitation.
(Ord. No. 99-11, Pt. 1, 4-13-99; Ord. No. 00-04, Pt. 1, § XXIX, 1-25-00) Sec. 27-908. - Secretary.
The director of planning or the director's designee may serve as secretary to the board as directed by the chief executive officer of DeKalb County. The secretary shall make tape recordings and keep minutes of the proceedings of the board, 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 official actions and evidence submitted, all of which shall be filed in the office of the planning department and shall be a public record. Permanent and complete records of the proceedings and decisions of the board shall be maintained.
(Ord. No. 99-11, Pt. 1, 4-13-99; Ord. No. 00-04, Pt. 1, § XXX, XXXI, 1-25-00) Sec. 27-909. - Application forms; filing of applications; application fees. Applications for appeals, variances and special exceptions shall be filed on forms provided by the department of planning and shall not be considered authorized or accepted unless complete in all respects. Application fees shall be as established by the board of commissioners.
(Ord. No. 99-11, Pt. 1, 4-13-99)
Sec. 27-910. - Staff analysis, findings of fact, and recommendation on each application for variance and special exception.
The staff of the department of planning shall conduct a site inspection of and shall prepare an analysis of each application for variance and special exception applying the criteria and standards set forth in this division appropriate to each such application. Said staff shall present its findings and recommendations in written form to the board at least seven (7) days prior to the public hearing thereon.
(Ord. No. 99-11, Pt. 1, 4-13-99)
Sec. 27-911. - Testimony.
All testimony before the board shall be taken as if under oath regardless of whether or not a formal oath or affirmation is administered. The chairperson, or in his or her absence the acting chairperson, may administer oaths and compel the attendance of witnesses by subpoena.
(Ord. No. 99-11, Pt. 1, 4-13-99)
Sec. 27-912. - Power and duty of the board to hear appeals of decisions of administrative officials.
The zoning board of appeals shall have the power and duty to hear and decide appeals where it is alleged by the appellant that there is error in any final order, requirement, or decision made by an administrative official based on or made in the enforcement of the zoning ordinance. A failure to act shall not be construed to be an order, requirement or decision within the meaning of this division. All such appeals shall be heard and decided following the notice requirements of section 27-917, and pursuant to the following criteria and procedural requirements: (a)
Appeals of decisions of administrative officials. Appeals may be filed by any person aggrieved by, or by any county official, department, board or agency affected by, any final order, requirement, or decision of an administrative official, based on or made in the enforcement of the zoning ordinance, by filing with the secretary of the board an application for appeal specifying the grounds thereof, within fifteen (15) days after the action appealed from was taken. A failure to act shall not be construed to be an order, requirement or decision within the meaning of this division. A person shall be considered aggrieved for purposes of this subsection only if: (1)
Said person or said person's property was the subject of the action appealed from; or (2)
Said person has a substantial interest in the action appealed from that is in danger of suffering special damage or injury not common to all property owners similarly situated. (b)
Appeal stays all legal proceedings. An appeal stays all legal proceedings in furtherance of the action appealed from unless the official from whom the appeal is taken certifies to the board, after notice of appeal has been filed, that by reasons of facts stated in the certificate, a stay would, in that official's opinion, cause imminent peril to life and property. In such a case, proceedings shall be stayed only by a restraining order granted by the Superior Court of DeKalb County on notice to the officer from whom the appeal is taken and on due cause shown. (c)
Time of hearing. The board shall fix a reasonable time for the hearing of the appeal and give notice thereof pursuant to the requirements of section 27-917 as well as due notice to the parties in interest. Any party may appear at the hearing in person, by an agent, by an attorney or by a written documentation. (d)
Decision of the board. Following the consideration of all testimony, documentary evidence, and matters of record, the board shall make a determination on each appeal. The board shall decide the appeal within a reasonable time but in no event more than sixty (60) days from the date of the hearing. An appeal shall be sustained only upon an expressed finding by the board that the administrative official's action was based on an erroneous finding of a material fact, or that the administrative official acted in an arbitrary manner. In exercising its powers, the board may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from, and to that end shall have all the powers of the administrative official from whom the appeal was taken and may issue or direct the issuance of a permit provided all requirements imposed by all other applicable laws are met.
(Ord. No. 99-11, Pt. 1, 4-13-99)
Sec. 27-913. - Power and duty of the board to hear applications for special exceptions to reduce or waive off-street parking or loading space requirements.
The zoning board of appeals shall hear and decide applications for special exceptions to reduce or waive required off-street parking or loading spaces in accordance with the provisions and standards of this section and without further compliance with the standards set forth in section 27-916(b). All such applications shall be heard and decided based on the notice requirements of section 27-917. The board may waive or reduce the required number of parking spaces or the required number of loading spaces in any district only upon an expressed finding that: (a)
The character of the use of the building(s) is such as to make unnecessary the full provision of parking or loading spaces; or (b)
The lot upon the building(s) is located is within one thousand (1,000) feet of the boundary of a MARTA Rapid Transit Station. (c)
The provision of the full number of parking spaces would have a deleterious affect On a historic building, site, district or archaeological resource.
(Ord. No. 99-11, Pt. 1, 4-13-99) Sec. 27-914. - Reserved.
Sec. 27-915. - Power and duty of the board to hear applications for variances; limitations of authority of board.
The zoning board of appeals shall hear and decide applications for variances from the strict application of the regulations of this Chapter 27 and Chapter 21 where the strict application of any regulation enacted under said chapters would result in exceptional and undue hardship upon the owner of such property. In determining whether or not to grant a variance, the board shall apply the criteria specified in section 27-916 below to the facts of each case. The board may attached reasonable conditions to any approved variance or special exception in accordance with section 27-833(a). Once imposed, conditions shall become an integral part of the approved variance or special exception and shall be enforced as such. No changes to an approved condition attached to a variance or special exception shall be authorized except by re-application to the board in full accordance with the provisions of this division. No variance shall be granted by the board to: (a)
Allow a structure or use not authorized in the applicable zoning district or a density of development that is not authorized within such district; (b)
Allow an increase in maximum height of building; (c)
Allow any variance which conflicts with or changes any requirement enacted as a condition of zoning or of a special land use permit by the board of commissioners; (d)
Vary the requirements of Chapter 21 for an off premises sign which decreases the applicable development standard by thirty (30) percent or more, or to grant more than two (2) variances for a specific parcel of property for an off-premises sign during a five-year period of time; (e)
Reduce, waive or modify in any manner the minimum lot width and minimum lot area where the lot has been conditionally zoned to a specific site plan; (f)
Reduce, waive or modify in any manner the minimum lot area established by the board of commissioners for any use permitted by special land use permit or by special exception; (g)
Extend the time period for a temporary outdoor social, religious, entertainment or recreation activity approved by the director of public works; (h)
Permit the expansion or enlargement of any nonconforming use of land, nonconforming use of land and buildings in combination, nonconforming use of land and structures in combination, or nonconforming use requiring special land use permit; (i)
Permit the reestablishment of any nonconforming use of land, nonconforming use of land and buildings in combination, nonconforming use of land and structures in combination, or nonconforming use requiring special land use permit where such use has lapsed pursuant to the requirements and limitations of Article IV, Division 5 of this chapter; or (j)
Permit customer contact for a home occupation authorized by this chapter.
(Ord. No. 99-11, Pt. 1, 4-13-99; Ord. No. 00-04, Pt. 1, § XXXII, 1-25-00)
Sec. 27-916. - Criteria to be used by the board in deciding applications for variances and special exceptions.
No relief may be granted or action taken under the terms of this division unless such relief can be granted without substantial detriment to the public good and without substantial impairment of the intent and purpose of this chapter and the comprehensive plan text. The zoning board of appeals shall apply the following criteria to the types of applications specified below as follows: (a)
Variances from the provisions or requirements of this chapter shall be authorized only upon making all of the following findings: (1)
By reason of exceptional narrowness, shallowness, or shape of a specific lot, or by reason of exceptional topographic conditions, which were not created by the owner or applicant, the strict application of the requirements of this chapter would deprive the property owner of rights and privileges enjoyed by other property owners in the same zoning district; (2)
The requested variance does not go beyond the minimum necessary to afford relief, and does not constitute a grant of special privilege inconsistent with the limitations upon other properties in the zoning district in which the subject property is located; (3)
The grant of the variance will not be materially detrimental to the public welfare or injurious to the property or improvements in the zoning district in which the subject property is located; (4)
The literal interpretation and strict application of the applicable provisions or requirements of this chapter would cause undue and unnecessary hardship; and (5)
The requested variance would be consistent with the spirit and purpose of this chapter and the DeKalb County Comprehensive Plan text. (b)
Special exceptions shall be authorized only upon making a finding that the application conforms to all of the requirements of section 27-873. (c)
In lieu of the requirements set forth in subsection (a), requests for variances from the provisions of the noise ordinance set forth in section 27-762, the zoning board of appeals shall be authorized to grant variances only upon making all of the following findings: (1)
By reason of exceptional conditions, which were not created by the owner or applicant, the strict application of section 27-762 would deprive the property owner of rights and privileges enjoyed by other property owners in the same residential, commercial or industrial district; (2)
The requested variance does not go beyond the minimum necessary to afford relief, and the applicant has exhausted the best practical noise control measures, such as those promulgated by INCE, without being able to conform to the noise levels established in section 27-762(c); (3)
The grant of the variance will not be materially detrimental to the public welfare or injurious to the property or improvements in the zoning district in which the subject property is located; (4)
The literal interpretation and strict application of the applicable provisions or requirements of section 27-762 would cause undue and unnecessary hardship; and (5)
The requested variance would be consistent with the purposes of the section 27-762 and shall not exceed: a.
Ten (10) dB(A) beyond what is allowed by the section 27-762 during the hours of 7:00 am to 10:00 p.m.; and b.
Five (5) dB(A) beyond what is allowed by section 27-762 during the hours of 10:00 p.m. to 7:00 a.m.
(Ord. No. 99-11, Pt. 1, 4-13-99; Ord. No. 20-03, Pt. I, 10-8-02)
Sec. 27-917. - Notice of public hearings.
Notice of public hearing before the board on any application for appeal, variance, or special exception shall be provided as follows: (a)
Written notice of the nature of the proposed application, and the date, time, and place of the public hearing before the board shall be mailed by first class mail to all property owners within two hundred fifty (250) feet of the boundaries of the subject property as measured by use of the official zoning maps, and as such property owners are listed on the tax records of DeKalb County, at least fifteen (15) days before the public hearing before the board; (b)
Signs shall be posted within the public right-of-way or on the subject property at least fifteen (15) days before the hearing before the board. One (1) sign shall be posted for each five hundred (500) feet of street frontage or fraction thereof along each street on which the subject property has frontage. Signs shall be double-faced and posted so that the face of the sign is at a right angle to the street in order that said signs can be read by the traveling public in both directions. The lettering on the signs shall be at least one (1) inch in size and the sign shall state the nature of the proposed application and the date, time and place of the public hearing before the board; and (c)
Notice of the nature of the proposed application and the date, time and place of the public hearing before the board shall be published in the newspaper of general circulation within the county in which are carried the legal advertisements of the county at least fifteen (15) days prior to the date of the hearing before the board and not more than forty-five (45) days prior to the date of the hearing before the board.
(Ord. No. 99-11, Pt. 1, 4-13-99)
Sec. 27-918. - Decision by board.
Each application presented to the board regarding a variance or special exception shall be scheduled for a public hearing within sixty (60) days of the filing of a complete application and shall be supported by findings and conclusions which shall be a part of the record established by the board for each application. The board may adopt the findings of fact of the staff, or they may adopt the findings of fact of the staff with modifications, or they may adopt a separate set of facts developed by the board.
(Ord. No. 99-11, Pt. 1, 4-13-99)
Sec. 27-919. - Compliance with standards upon denial.
In such case that an application to the board is initiated due to an existing violation of this chapter and such application is denied, the violation shall be required to be corrected within ten (10) to thirty (30) days of such denial or as specified by the board if a greater time period is required. The maximum extension of time the board may grant for correction shall not exceed thirty (30) to ninety (90) days.
(Ord. No. 99-11, Pt. 1, 4-13-99)
Sec. 27-920. - Successive applications.
An application for a variance or special exception affecting all or a portion of the same property which was denied by the zoning board of appeals shall not be submitted more than once every twenty-four (24) months measured from the date of final decision by the zoning board of appeals. The zoning board of appeals may waive or reduce this twenty-four-month time interval by resolution provided that if the application for a variance or special exception was denied by the zoning board of appeals, the time interval between the date of said denial and any subsequent application or amendment affecting the same property shall be no less than six (6) months.
(Ord. No. 99-11, Pt. 1, 4-13-99)
Sec. 27-921. - Appeals of decisions of the zoning board of appeals.
All appeals of all final decisions of the board under the provisions of this chapter shall be as follows: (a)
Any person aggrieved by a final decision of the board, or any officer, department, board or agency affected by such decision, may seek review of such decision by petitioning the Superior Court of DeKalb County for a writ of certiorari, setting forth plainly the alleged errors. Such petition shall be filed within thirty (30) days after the final decision of the board is rendered. (b)
Notice to board. In any such petition filed, the zoning board of appeals shall be designated the respondent in certiorari and DeKalb County the defendant in certiorari. The secretary of the zoning board of appeals shall be authorized to acknowledge service of a copy of the petition and writ for the zoning board of appeals as respondent. Service upon the county as defendant shall be as otherwise provided by law. Within the time prescribed by law, the zoning board of appeals shall cause to be filed with the clerk of DeKalb County Superior Court a duly certified record of the proceedings had before the board, including a transcript of the evidence heard before it, if any, and the decision of the board.
(Ord. No. 99-11, Pt. 1, 4-13-99)