§ 26-431. Variance procedures.

No variance shall be granted to the undisturbed buffer and/or setback requirements contained in this article unless the director (or, in the event of an appeal, the board of zoning appeals) determines that a hardship exists and relief, if granted, meets the general purpose and intent of this article. There shall be two levels of variance appeals: Level one and secondary. Subsections 26-431 (c) and (d) provide the intent of the level one and secondary variance appeal processes. Subsections 26-431(a) and (b) below, establish the criteria to validate the basis for an appeal to the stream buffer protection standards and specify the submittal requirements for the appeal processes. Mitigation measures (i.e. stream bank restoration) are outlined in the administrative guidelines for this article.

(1)

Variance hardship criteria. Variance requests shall only be considered if a request meets any of the following hardship criteria including the applicant's statement and explanation of the hardship under which a variance is submitted to deviate from the stream buffer protection standards of section 26-429:

a.

For public and private properties that have unusual shape or topography of the property at the time of the adoption of this article and there is no opportunity for development under any design configuration in accordance with the land use designation assigned to the subject property; or

b.

For private development projects that involve the construction or repair of a structure which, by its nature, must be located within the buffer. Such structures include dams, docks, boat launches, and stabilization of areas to access water; or

c.

For public and private projects involving paved foot trails greater than ten feet wide and viewing areas, providing that impacts to the buffer are minimal (at the discretion of the director); or

d.

For public and private projects with buffer and/or setback intrusion that demonstrates that the completed project results in maintained and/or improved water quality downstream; and, yields no increase in storm water runoff.

(2)

Variance submittal requirements.

a.

In accordance with subsection 26-431(a), variances from the undisturbed buffer and setback requirements of this article may be sought by a property owner by filing an application following the minimum submittal requirements and procedures as set forth in the administrative guidelines for this article. An administrative filling fee shall be assessed at the time of application.

b.

In the event that a concept plan or rezoning application (which includes a stream that is subject to this article) is in the review process (where upon the concept plan or rezoning application has not yet been approved by a Fulton County action) and, wherein the applicant is seeking relief from the stream buffer protection standards as described in section 26-429, the concept plan shall not be approved by Fulton County until either:

1.

The applicant shows the required stream buffer protection standards on the subject rezoning application and concept plan without any reduction or deviation, or

2.

A variance to the stream buffer protection standards has been granted and the rezoning application and concept plan reflects the intent and design of the relief from the required stream buffer protection standards.

c.

Notwithstanding any other provision of this section, above, no relief to the undisturbed buffer and setback area protection requirements shall be allowed on any USGS Blueline streams on all land within a small supply watershed protection area. In addition, notwithstanding any other provision of this section, the minimum standards, rules, and regulations of the Metropolitan River Protection Act (O.C.G.A. § 12-5-440 et seq.) the Georgia Erosion and Sedimentation Act (O.C.G.A. § 12-7-1, et seq.), and the Georgia Planning Act Part V Environmental Planning Criteria (O.C.G.A. § 12-2-8(b) are applicable and supersede this article if and when a conflict exists.

d.

Notwithstanding any of the provisions of this section, land disturbing activities related to or involving forestry shall comply with the latest edition of the "Best Management Practices for Forested Wetlands in Georgia" and "Recommended Best Management Practices for Forestry in Georgia." Land disturbing activities related to or involving agriculture shall comply with the latest edition of the "Agricultural Best Management Practices for Protecting Water Quality in Georgia."

(3)

Level one variance. A level one variance is a hardship-based appeal subject to the director's decision. This process is governed by the criteria established in subsection 26-431(a) and allows applicants to petition the county to consider one of the following requests. Considering the merit of the application including all facts and the information provided, the director may approve or disapprove the request with or without conditions for the following:

a.

Reduce a maximum of 15 feet of the setback area and reduce a maximum of 25 feet of the undisturbed buffer.

b.

Construction of storm water retention or detention facilities within the undisturbed buffer area and stream channel excluding all USGS Blueline streams, where water quality-related facilities shall not be allowed in the stream. Notwithstanding any other provision of this subsection, no in-stream detention/retention shall be allowed in a FEMA designated A or AE flood zone, unless first approved by FEMA.

(4)

Secondary variance. A secondary variance is a hardship based-appeal subject to the board of zoning appeals decision. This process is governed by criteria established in subsection 26-431(a) and allows applicants to petition the county to consider one of the following below requests. Considering the merit of the application including all facts and the information provided, the board of zoning appeals may approve or disapprove the request with or without conditions for the following:

a.

Reduction of the setback area or undisturbed buffer greater than the distances specified in subsection 26-431(c)(1);

During the secondary variance procedure residents will be notified of the proposed impact in accordance with Fulton County Zoning Resolution requirements.

(5)

Judicial review.

a.

Appeal of a level one variance decision. The director's determination and decision shall conclude the Level One variance. Any person may appeal a Level One variance decision of the director to the board of zoning appeals. An appeal of the director's decision shall be filed in writing within 30 days after the final decision of the director.

b.

Appeal of secondary variance decision. Any person may appeal the board of zoning appeals' decision to the Fulton County Superior Court. The decision of the board of zoning appeals constitutes a final Fulton County action. An appeal of this decision shall be filed in writing within 30 days after the final decision of the board of zoning appeals.

(Res. No. 05-0566, Exh. A, 3-4-05)