Section 12Board of appeals

12-1. Membership.

12-1.1. Membership and appointment. The Ashburn Board of Zoning Appeals, hereinafter referred to as the "board," shall consist of three members residing within Ashburn, Georgia. The members shall be appointed by the Mayor and Council of Ashburn, Georgia. None of the board members shall hold any other public office, except that one member may also be a member of the planning commission. Board members may be removable for cause, upon written charges, and after public hearing. Any member of the board shall be disqualified to act upon a matter before the board with respect to property in which the member has an interest.

12-1.2. Term of office. The term of office for each member of the board shall be for five years; however, in the appointment of the first board, one member shall be appointed for one year, one of the members shall be appointed for three years and one for five years. Any vacancy in the membership shall be filled for the unexpired term in the same manner as the initial appointment. If one appointee is from the planning commission and he ceases to be a member of said planning commission during the term of his appointment to the board, his membership on the board shall terminate and the governing authority may name a member of said planning commission to fill the unexpired term of its original appointee.

12-1.3. Compensation. The board members shall receive no compensation for their service except that they may be reimbursed for out-of-pocket expenditures made in connection with their duties.

12-2. Rules and procedures. The board shall elect one of its members as chairman, who shall serve for one year or until he is re-elected or his successor is elected. The board of appeals shall appoint a secretary who may be an officer of Ashburn, Georgia, or of the planning commission. The board shall have authority to adopt rules of procedure. Meetings of the board shall be held at the call of the chairman and at such other times as said board may determine. The chairman, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses by subpoena. The board 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 other official actions, all of which shall be immediately filed in the office of said board and shall be a public record. The decisions of the board shall be by resolution, which resolution shall contain a statement of the grounds of its decision or action. The full text of the resolution shall be sent to the appellant. No appeal requesting the same relief in regard to the same property shall be received or heard by the board for a period of 12 months following the date of said resolution, except that this limitation shall not affect the right of said board to grant a rehearing if provided in the rules of procedure adopted by said board.

12-3. Administrative Assistance. The city council may provide such technical, administrative, and clerical assistance as is needed by the board to carry out its function under the provisions of these regulations.

12-4. Appeals.

12-4.1. Who may appeal. Appeals to the board may be taken by any person aggrieved or by any officer, department, board, or bureau of the governing authority affected by any decision of the zoning administrator. Such appeals shall be filed no later than 30 days after the date of notification of the decision appealed from by filing with the zoning administrator, and with the board, a notice of appeal specifying the grounds thereof. The zoning administrator shall forthwith transmit to the board all the papers constituting the record upon which the action appealed from was taken.

12-4.2. Legal proceedings stayed. An appeal stays all legal proceedings in furtherance of the action appealed from, unless the zoning administrator certifies to the board 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 and property. In such case, proceedings shall not be stayed otherwise than by a restraining order which may be granted by the board or by a court of record on application, on notice to the zoning administrator, and on due cause shown.

12-4.3. Presentation of evidence. The appellant, and any public agency or private individual shall be entitled to present evidence on matters before the board, and said board may request technical service, advice, data, or factual evidence from the planning commission and the governing authority for assistance in reaching decisions.

12-4.4. Extent of board of appeals' power. The board may, in conformity with the provisions of these regulations, reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination of the zoning administrator, and to that end shall have all the powers of the zoning administrator. The board may direct the issuance of a permit. It shall be the duty of the zoning administrator to carry out the decisions of the board.

12-5. Public Hearing.

12-5.1. Notice of hearing shall be given. Before making its decision on an administrative appeal, request for a special exception, request for a variance, or any other matter within the board's authority, said board shall hold a public hearing thereon. At least 15 days' notice of the time and place of such hearing shall be sent to the appellant or petitioner, to the planning commission, the zoning administrator, and to the owners of all properties either adjoining the property with which the hearing is concerned or situated directly across a public right-of-way from said property. Such notice shall contain the name of the appellant or petitioner, the date, time, and place set for the hearing, and a brief statement of the nature of the hearing.

12-5.2. Public notice in newspaper. The board shall give a public notice of the hearing in a newspaper published and circulated in Ashburn, Georgia, by advertisement published at least 15 days prior to the date of the public hearing.

12-5.3. Who may appear. Any party may appear at the public hearing in person or by agent or by attorney.

12-5.4. Time limit on board's decision. The board shall reach a decision following a public hearing.

12-6. Powers and Duties.

12-6.1. Appeals from actions of the zoning administrator. The board shall hear and decide upon appeals where it is alleged there is error in any order, requirement, decision or determination made by the zoning administrator in the enforcement of these regulations.

12-6.2A. Special exception. The board shall hear and decide upon special exceptions as authorized by section 5, "Schedule of Permitted Uses" (see section 12-5.1), of this ordinance. The application to establish such use shall be approved on a finding by the board of appeals that:

a. The proposed use will not be contrary to the purpose of this ordinance.

b. The proposed use will not be detrimental to the use or development of adjacent properties or the general neighborhood nor affect adversely the health and safety of residents and workers.

c. The proposed use will not constitute a nuisance or hazard because of the number of persons who will attend or use such facility, vehicular movement, noise or fumes generation, or type of physical activity.

d. The proposed use will not be affected adversely by the existing uses of adjacent properties; and the proposed use will be placed on a lot of sufficient size to satisfy the space requirements of said use.

e. The parking and all development standards set forth for each particular use for which a permit may be granted will be met.

f. Provided, that the board of appeals may impose or require such additional restrictions and standards (i.e., increased setbacks, buffer strips, screening, etc.) as may be necessary to protect the health and safety of workers and residents in the community, and to protect the value and use of property in the general neighborhood.

12-6.2B. Conditions of special exception. Special exceptions approved by the board may be terminated upon notice and action by the board at any time subsequent to the approval thereof by the board in the event that the owner of the property subject thereto fails to satisfy and maintain the existence of any of the following, conditions subsequent:

a. Execute or establish use of the special exception use approved by the board within 12 months from the date of approval thereof by the board or within such other term as the board shall specifically designate therefor in which case the applicant must execute or establish such use within the term so designated by the board;

b. Maintain the special exception use of the property subject thereto in accordance with the approved special exception continuously following establishment of the special exception use without interruption exceeding one year in duration;

c. Maintain continuous compliance with any and all restrictions, standards or requirements which may be imposed by the board in connection with the approval of such special exception; or

d. Maintain continuous compliance with the requirements of section 8, "Nonconformance," to the extent that such section may be applicable.

12-6.2C. Limitations on special exceptions. Special exceptions granted for home occupations shall automatically terminate upon any change in occupancy of the subject property and shall not be transferable.

12-6.2D. Termination of special exceptions. Upon determination by the board upon application of any interested party that (1) the owner of the property subject to a special exception is not in compliance with the terms of the zoning ordinance or (2) the owner of the property subject to a special exception has not complied with any of the conditions subsequent specified in subsections 12-6.2B (a), (b), (c) thereof or (3) the owner of the property subject to a special exception has failed to comply with any restriction or standard imposed by the board under section 12-6.2A(f), then in any such event the board may rescind and revoke a special exception after giving due notice to all parties at interest and following a public hearing thereon.

12-6.2E. Applications for special exceptions. Applications for a special exception shall be accepted from the owners of the property or the authorized agent of the owners.

12-6.3. Request for a variance. The board may authorize upon appeal in specific cases such variance from the terms of these regulations as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of provisions of these regulations will, in an individual case, result in unnecessary hardship, so that the spirit of these regulations shall be observed, public safety and welfare secured, and substantial justice done. Provided, however, that a variance shall not be granted for a use of land or building or structure that is prohibited by this resolution in the district in question. Such variance may be granted in an individual case upon finding by the board that all of the following exist:

a. There are extraordinary and exceptional conditions pertaining to the particular piece of property in question because of its size, shape or topography; and

b. The application of these regulations to this particular piece of property would create an unnecessary hardship; and

c. Such conditions are peculiar to the particular piece of property involved; and

d. Relief, if granted, would not cause substantial detriment to the public good or impair the purposes and intent of these regulations; provided that no variance may be granted by a use of land, building or structure that is prohibited by this ordinance. Applications for use variances shall not be accepted by the zoning administrator. Such requests shall be properly filed as requests for rezoning, the authority for such rezoning of property being solely reserved for the Ashburn City Council.

e. Provided that the board of appeals may impose or require such additional restrictions and standards (i.e., increased setbacks, buffer strips, screening, etc.) as may be necessary to protect the health and safety of residents and workers in the community, and to protect the value and use of property in the general neighborhood. Provided, that whenever the board of appeals shall find, in the case of any permit granted pursuant to the provisions of these regulations that any of the terms, conditions or restrictions upon which such permit was granted are not being complied with, said board shall rescind and revoke such permit after giving due notice to all parties concerned and granting full opportunity for a public hearing.

12-6.4. Request for extension of nonconforming residential uses. The board may authorize upon appeal in specific cases an extension or replacement of an existing nonconforming residential use which the board is specifically authorized to pass on under the terms of this resolution. Said extension may be granted in an individual case upon finding by the board that:

a. The use is a nonconforming use as defined in these regulations; and

b. The use is in full compliance with all requirements of these regulations applicable to nonconforming uses; and

c. The extension of said use will not further injure a permitted use on adjacent property in the same district.

d. This section is specifically designed to allow for the replacement of homeowner occupied residential units in areas no longer zoned for residential uses. As such, this provision is not subject to the limits of section 8-5.

12-7. Forms. Appeals from actions of the zoning administrator, requests for permission to establish a use requiring special exception approval, requests for variances, and requests for extension of a nonconforming residential use shall be made on forms provided for such purposes. All information required on said forms shall be provided by the applicant. Forms shall be filed with the zoning administrator, and the applicant shall pay the City of Ashburn for expenses incidental to the appeal. No form shall be accepted by the zoning administrator unless it contains all pertinent information and is accompanied by the required fee of $100.00 to defray expenses.

Cross reference— Administration, ch. 2; planning, ch. 66.