§ 62-234. Powers and duties limited.

The BOLUA is a body of limited powers, and its actions are taken in a quasi-judicial capacity rather than a legislative capacity. The BOLUA is empowered to hear and decide administrative appeals where it is alleged there is an error in any order, requirement, decision or determination made by the LDO, building official, or other employee in the interpretation or enforcement of this land use ordinance. The BOLUA is empowered to hear and decide variances to the terms of this article or special exceptions as may be authorized by this article.

The BOLUA is empowered to hear, after proper filing of an application specifying the action or order being appealed and the grounds for the appeal to be heard, any person, firm, or corporation, or by any officer, department, board, or bureau affected by any decisions of the LDO, building official or other employee based on this land use ordinance. Such application shall be taken within 30 days after the action or order being appealed by filing with the LDO a notice of appeal. All papers constituting the record upon which the action appealed from was taken shall be transmitted to the BOLUA. A fee shall also be required with the application to cover the advertising costs.

An application for decision on an issue stays all legal proceedings in furtherance of the action appealed from, unless the land development officer certifies to the BOLUA after the notice of appeal shall have been filed with him/her, that by reason of facts stated in the certificate a stay would, in his/her opinion, cause imminent peril to life and property. In such cases, proceedings shall not be stayed otherwise than by a restraining order which may be granted by a court of record on application, on notice to the land development officer, and on due cause shown.

In exercising its powers, the BOLUA may, in conformity with the provisions of this article, reverse, affirm or modify its prior order, requirement, decision or determination, in whole or in part, and to that end shall have all of the powers of the LDO and/or his/her appointee or representative and may issue or direct the issuance of a permit. The BOLUA may attach any conditions to its approval which it finds necessary to accomplish the reasonable application of the requirements of this article. In cases where an issue is granted, the board shall have all necessary powers of the land development officer and may issue permits, or direct the issuance of permits, not otherwise inconsistent with this code and any other code, resolution, or ordinance adopted by the Gilmer County Board of Commissioners.

The BOLUA's secretary shall notify the applicant, in writing, of the board's final decision upon the matter that was the subject of filed application.

(1)

Administrative appeals. To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination by the land development officer or appointee in the enforcement of this article. Such appeals may include, but are not limited to: 1) zone district boundary interpretations beyond the provisions of section 62-74; 2) interpretation of uses as provided in division 12; 3) interpretations relating to the existence of a nonconforming use, when applicable.

(2)

Variances. The BOLUA is hereby empowered to authorize upon application in specific cases such variances as defined herein as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this article will in an individual case, result in unnecessary hardship, so that the spirit of this article shall be observed, public safety and welfare secured, and substantial justice done. A variance may be granted upon specific findings that all of the following conditions exist. The absence of any one of the conditions shall be grounds for denial of the application for variance. Further, a variance cannot be granted for a use of land, building, or structure that is prohibited in a district by this article, nor can a variance be granted to allow an increase in the number of dwelling units per acre or a lot size smaller than authorized by this article. The minimum allowable variance for a setback shall be no less than five feet from a property line.

a.

There are extraordinary and exceptional conditions pertaining to the particular piece of property in question because of its size, shape or topography that are not applicable to other land or structures in the same district; and

b.

A literal interpretation of the provisions of this land use ordinance would create an unnecessary hardship and would deprive the applicant of rights commonly enjoyed by other property owners within the district in which the property is located; and

c.

Granting the variance requested will not confer upon the property of the applicant any special privilege that is denied to other properties of the district in which the applicant's property is located; and

d.

Relief, if granted, will be in harmony with the purpose and intent of this article and will not be injurious to the neighborhood or general welfare in such a manner as will interfere with or discourage the appropriate development and use of adjacent land and buildings or unreasonably affect their value; and

e.

The special circumstances are not the result of the actions of the applicant; and

f.

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

(3)

Special exceptions. To include decisions or actions, now or upon future amendment of this article, whereby the board of land use appeals is empowered to make such decisions or take such actions.

(Res. No. 05-97, Art. 13 § 1304, 8-25-2005; Ord. No. 16-164, 12-8-2016)