§ 22.13. General procedures.

This section contains basic steps common to all variances and modifications.

22.13.1 Applications. All applications for variances, interpretations and modifications shall be filed with the Director of the Department of Environment and Community Development on forms available in the department. The type of application process necessary to accomplish the change requested by the applicant shall be the determined by the director of E&CD. The director shall transmit the petition and all documents constituting the record to the appropriate hearing body or individual.

22.13.2 Standing. Standing refers to a party or parties allowed to initiate a request for variances or modifications which are limited to the following:

A.

Modification petition - A request for a modification may be initiated by the property owner or its agent, the Planning Commission or the Board of Commissioners;

B.

Variance petition - A request for a variance may be initiated by the property owner of subject property or its agent;

C.

Secondary variance petition - A request for a secondary variance appeal may be initiated by the property owner of the subject property or its agent, or the owner of other real property within 300 feet of the boundaries of the subject property; and

D.

Interpretation petition - A request for an interpretation of a decision of the Director of the Department of Environment and Community Development may be requested by any individual.

22.13.3 Filing deadlines.

A.

Applications for variances, interpretations and modifications shall be submitted in accordance with the advertised filing deadlines, depending on the type of petition in accordance with section 28.2.3 of the zoning resolution.

B.

Concurrent variance applications shall be filed in accordance with the filing deadline for the parent petition of either a use permit, rezoning, or zoning modification request in accordance with section 28.2.3 of the zoning resolution.

C.

The Director of the Department of Environment and Community Development has the discretion to extend the filing deadline by two days for all applications except administrative minor and minor variance applications. A letter from the applicant explaining the delay in filing shall be submitted prior to the close of the filing deadline.

22.13.4 Withdrawal of application.

A.

An application may be withdrawn by the applicant in writing at any time before the public hearing notice advertisement is published and/or the notice of the hearing is posted on the property.

B.

Applications which do not require a public hearing may be withdrawn at any time before notification of a decision is mailed.

C.

Once the public hearing has been properly advertised, the request for withdrawal of the application must be placed on the public hearing agenda and the appropriate decision-making body shall act on the withdrawal request.

22.13.5 Fees. At the time of application, applicants shall pay fees as established by the Board of Commissioners. Fees paid are not refundable except where the Director of the Department of Environment and Community Development determines that an application was accepted in error, or the fee paid exceeded the amount due, in which case the amount of the overpayment will be refunded to the applicant.

22.13.6 Legal action stayed. The filing of an appeal authorized by this article shall operate as a stay of any enforcement proceedings by Fulton County until final resolution of the appeal. No Board of Commissioners or Board of Zoning Appeals action shall be taken on any property which is the subject of any litigation pending in state or federal court wherein Fulton County or its agents or officials are parties.

22.13.7. Public hearing. A public hearing shall be conducted by the stated hearing body of each appeal application before taking action thereon except those authorized to be considered administratively. The schedule of public hearings and deadlines for the filing of an appeal shall be established by the Board of Commissioners.

Public hearings are not required for administrative variances, minor variances, administrative minor variances and administrative modifications; however, notification in accordance with section 22.13.9.B. is required.

22.13.8 Evaluations and reports. The hearing body shall have before it, at the time of hearing, a report from the Director of the Department of Environment and Community Development which shall summarize the hardship or justification reported by the applicant as related to the application and background information for variances, modifications, and interpretations, and any other information requested by the hearing body. The hearing body shall, hear, analyze, consider, and make a written report of its decision in accordance with section 22.13.12, Notice of Decision.

22.13.9. Public notification. (Amended 09/05/01, 10/02/02, 06/04/03, 03/03/04)

A.

For those applications requiring a public hearing (Primary Variances, Secondary Variances, Concurrent Variances, and Zoning Modifications), the Director of the Environment and Community Development Department shall:

1.

Publish notice of the public hearing in a newspaper of general circulation at least 15 days, but no more than 45 days prior to the public hearing at which an application will be heard. The published notice shall contain the time, place and purpose of the hearing and the location of the property if applicable (secondary variances may not always be property specific). Renotification is not required when a petition is deferred by the Board of Commissioners or the Board of Zoning Appeals.

2.

The applicant or agent shall post a sign as issued by the Environment and Community Development Department in a conspicuous location on each public street frontage of the subject site, at least 20 days, but not more than 45 days, prior to the public hearing at which an application will be heard.

The sign shall be mounted and posted as specified by the Environment and Community Development Department. Property that is not posted on the 20th day before the scheduled hearing date will be administratively removed from the agenda. The sign will remain posted on-site until final action by the appropriate hearing body is taken.

When the Board of Zoning Appeals defers a petition, the applicant is required to post an updated sign with new hearing dates 20 days prior to the next scheduled hearing date. When the Board of Commissioners defers a petition, an updated sign is not required.

The posted sign shall contain the date, time, place and purpose of the hearing.

For zoning modifications, all notices shall contain all of the items listed in the previous sentence, the location of the property, the zoning and/or use permit case number to be modified and the condition number(s) to be modified.

The posting of a sign is not required when a secondary variance is not requested by the property owner or owner's representative.

3.

Notice of the public hearing shall be postmarked 15 days prior to the hearing date and shall be given by regular mail to all property owners within 300 feet of the boundaries of the property who appear on the current tax records of Fulton County as retrieved by the County's Geographic Information System. Renotification is not required when a petition is deferred by the Board of Commissioners or the Board of Zoning Appeals.

The mailing of public notices is not required when a secondary variance is sought by other than the property owner.

B.

For those applications not requiring a public hearing, notification shall be provided as follows:

1.

Administrative Variance: The owners of property adjacent and contiguous across the right-of-way of the subject site shall be notified in accordance with Section 22.13.9(A)(3).

2.

Minor Variance: The owners of property adjacent and contiguous across the right-of-way of the subject site shall be notified in accordance with Section 22.13.9(A)(3).

3.

Administrative Modification: The Director of the Environment and Community Development Department shall determine what notification, if any, is reasonable on a case by case basis.

4.

Administrative Minor Variance: No written notification.

22.13.10 Decisions. The Board of Commissioners, Board of Zoning Appeals, and the Director of the Environment and Community Department in considering applications under this article shall do one of the following:

A.

Approve or partially approve.

B.

Approve and impose conditions related to the application being considered. (Amended 4-3-02)

C.

Deny.

D.

Hold for further study not less than 30 days.

E.

Withdraw.

22.13.11 Board of Zoning Appeals decision on secondary variances/interpretations. The Board of Zoning Appeals may take the following actions pursuant to a secondary variance and/or an interpretation appeal:

A.

Affirm an order, requirement, or decision, wholly or partly.

B.

Reverse an order, requirement, or decision, wholly or partly.

C.

Clarify. Present an interpretation of the text in the form of a statement of clarification. Such statement shall not contain substitute language, but shall rely upon language and definitions contained in the Fulton County Zoning Resolution, and definitions contained in Merriam-Webster Collegiate Dictionary, tenth edition.

22.13.12 Notice of decisions. Written notice of all decisions shall be placed in the official case file and shall be forwarded to the applicant by regular mail within seven working days from the date of the decision by the following authority:

A.

The Director of the Environment and Community Development Department shall provide written notification of the Board of Zoning Appeals' decisions;

B.

The Director of the Environment and Community Development Department shall, with respect to minor variances, administrative variances, and administrative modifications provide written notification of such decisions. The approval of a building permit shall constitute notice of approval for an administrative minor variance; and

C.

The Clerk to the Board of Commissioners shall, with respect to zoning modifications and concurrent variances, provide written notification of the Board of Commissioners' decisions.

22.13.13 Reconsideration of denied application. If a variance or modification application is denied by an authorized department director, Board of Commissioners or the Board of Zoning Appeals, an application for the same variance or modification item shall not be considered until:

A.

At least six months has elapsed from the date of the decision; or

B.

New information pertinent to the subject, not previously considered, is submitted by the petitioner and the six-month period is waived by the hearing body.

C.

If an application is denied by the Director of the Environment and Community Development Department, the applicant may appeal the decision to the appropriate hearing body depending on the type of petition.

This provision is not intended to supersede provisions of article 28.2 as related to decisions regarding rezonings and/or use permits.

22.13.14 Time limitation on appeals to superior court. The decision of the Board of Zoning Appeals is a final decision; therefore, any appeal of such a decision shall be pursued by application for writ of certiorari filed with the Superior Court of Fulton County within 30 days of the date of the decision. The applicant's petition, application for writ of certiorari, the writ of certiorari and any other initials filings with the Superior Court shall be served upon the named defendants/respondents in accordance with O.C.G.A. Section 9-11-4. (Amended 12-1-99)

Upon filing such an appeal, the Clerk of Superior Court shall give immediate notice thereof to the Director of the Environment and Community Development Department, and within 30 days from the date of such notice, the Director of Environment and Community Development shall cause to be filed with the Clerk of Superior Court a certified copy of the proceedings and the decision of the Board of Zoning Appeals.

Appeals of decisions (Secondary Variances/Interpretation) of the Director of the Environment and Community Development Department, or the Director of Public Works shall be brought within 30 days from the date of the decision.

22.13.15 Expiration of variance. If not used, a variance shall be valid only for a period of 36 months from the date it is granted. Extensions may be sought under the provisions for Expiration and Extensions in article 28, Rezoning and Other Amendment Procedures.