Chapter IX. Hardship Relief, Land Development Regulations, Chattahoochee

Chattahoochee (Last Updated: August 25, 2014)

Land Development Regulations

Chapter IX. Hardship Relief

Appendix 9.00.00. Purpose

§ 9.00.01. Generally.

Latest version.

The purpose of this chapter is to provide mechanisms for obtaining relief from the provisions of this code where hardship would otherwise occur. Two forms of hardship are addressed:

(1)

Part 9.01.00 addresses hardship that would be caused if nonconforming development were required to come into compliance with this code; and

(2)

Part 9.02.00 addresses the hardship that may be caused in particular cases by the imposition of the code's development design standards.

Appendix 9.01.00. Existing Nonconforming Development

§ 9.01.01. Defined

Latest version.

Nonconforming development is development that does not conform to the use regulations in chapter II and/or the development design and improvement standards in chapters V and VI.

§ 9.01.02. Continuation of

Latest version.

Subject to the provisions below, such development may, if otherwise lawful and in existence on the date of enactment of this code, remain in use in its nonconforming state.

§ 9.01.03. Nonconforming development

Latest version.

Generally. Where a lawful structure exists at the effective date of adoption or amendment of this code by reason of restrictions on area, lot coverage, height, yards, its location on the lot, or other requirements concerning the structure, such structure may be continued so long as it remains otherwise lawful, subject to the following provisions:

No such nonconforming structure may be enlarged or altered in a way which increases its nonconformity, but any structure or portion thereof may be altered to decrease its nonconformity.

Should such nonconforming structure or nonconforming portion of structure be destroyed by any means to an extent of more than 50 percent of its replacement cost at time of destruction, it shall not be reconstructed except in conformity with the provisions of this code;

Should such structure be moved for any reason for any distance whatever, it shall thereafter conform to the regulations for the district in which it is located after it is moved.

Nonconforming uses of structures or of structures and premises in combination. If lawful use involving individual structures with a replacement cost of $1,000.00, or more, or of structure and premises in combination exists at the effective date of adoption or amendment of this code, that would not be allowed in the district under the terms of this ordinance, the use may be continued so long as it remains otherwise lawful, subject to the following provisions:

No existing structure devoted to a use not permitted by this ordinance in the district in which it is located shall be enlarged, extended, constructed, reconstructed, moved, or structurally altered except in changing the use of the structure to a use permitted in the district in which it is located;

Any nonconforming use may be extended throughout any parts of a building which were manifestly arranged or designed for such use at the time of adoption or amendment of this ordinance, but no such use shall be extended to occupy any land outside such building;

If no structural alterations are made, any nonconforming use of a structure, or structure and premises, may as a special exception be changed to another nonconforming use provided that the board of adjustment, either by general rule or by making findings in the specific case, shall find that the proposed use is equally appropriate or more appropriate to the district than the existing nonconforming use. In permitting such change, the board of adjustment may require appropriate conditions and safeguards in accordance with the provisions of this ordinance;

Any structure, or structure and land in combination, in or on which a nonconforming use is superseded by a permitted use, shall thereafter conform to the regulations for the district, and the nonconforming use may not thereafter be resumed;

When a nonconforming use of a structure, or structure and premises in combination, is discontinued or abandoned for six consecutive months or for 18 months during any three-year period (except when government action impedes access to the premises), the structure, or structure and premises in combination, shall not thereafter be used except in conformity with the regulations of the district in which it is located;

Where nonconforming use status applies to a structure and premises in combination, removal or destruction of the structure shall eliminate the nonconforming status of the land. Destruction for the purpose of this subsection is defined as damage to an extent of more than 50 percent of the replacement cost at time of destruction.

Repairs and maintenance.

[1.]

On any nonconforming structure or portion of a structure containing a nonconforming use, work may be done in any period of 12 consecutive months on ordinary repairs, or on repair or replacement of nonbearing walls, fixtures, wiring, or plumbing, to an extent not exceeding ten percent of the current replacement cost of the nonconforming structure or nonconforming portion of the structure as the case may be, provided that the cubic content existing when it became nonconforming shall not be increased.

[2.]

If a nonconforming structure or portion of a structure containing a nonconforming use becomes physically unsafe or unlawful due to lack of repairs and maintenance, and is declared by any duly authorized official to be unsafe or unlawful by reason of physical condition, it shall not thereafter be restored, repaired, or rebuilt except in conformity with the regulations of the district in which it is located.

[3.]

Nothing in this code shall be deemed to prevent the strengthening or restoring to a safe condition of any building or part thereof declared to be unsafe by any official charged with protecting the public safety, upon order of such official.

Uses under special exception provisions not nonconforming uses. Any use which is permitted as a special exception in a district under the terms of this code (other than a change through board of adjustment action from a nonconforming use to another use not generally permitted in the district) shall not be deemed a nonconforming use in such district, but shall without further action be considered a conforming use.

Nonconformity with the parking and loading requirements of this code. In addition to the activities listed in section 9.01.03(A), full compliance with the requirements for parking and loading spaces (sections 5.03.02, 5.03.04 and 5.03.06) shall be required where a city development permit for the expansion or modification of a structure is issued.

Appendix 9.02.00. Variances

§ 9.02.01. Generally

Latest version.

Granted by the board of adjustment. The board of adjustment may grant a variance from the strict application of any provision of this code, except provisions in chapters II (Land Use) and III (Concurrency), if the following procedures are followed and findings made.

Variances to be considered as part of development review. Any person desiring to undertake a development activity not in conformance with this code may apply for a variance in conjunction with the application for development review. A development activity that might otherwise be approved by the city must be approved by the board of adjustment if a variance is sought. The variance shall be granted or denied in conjunction with, but prior to, any action to be taken on the application for development review.

§ 9.02.02. Limitations on granting variances

Latest version.

Initial determination. The board of adjustment shall first determine whether the need for the proposed variance arises out of the physical surroundings, shape, topographical condition or other physical or environmental conditions that are unique to the specific property involved. If so, the board of adjustment shall make the following required findings based on the granting of the variance for that site alone. If, however, the condition is common to numerous sites so that requests for similar variances are likely to be received, the board of adjustment shall make the required findings based on the cumulative effect of granting the variance to all who may apply.

Required findings. The board of adjustment shall not vary the requirements of any provision of this code unless it makes a positive finding, based on substantial competent evidence, on each of the following:

There are practical or economic difficulties in carrying out the strict letter of the regulation.

The variance request is not based exclusively upon a desire to reduce the cost of developing a site.

The proposed variance will not substantially increase congestion on surrounding public streets, the danger of fire, or other hazard to the public.

The proposed variance will not substantially diminish property values in, nor alter the essential character of, the area surrounding the site.

The effect of the proposed variance is in harmony with the general intent of this code and the specific intent of the relevant subject area(s) of the code.

Imposition of conditions. In granting a development approval involving a variance, the board of adjustment may impose such conditions and restrictions upon the premises benefitted by a variance as may be necessary to allow a positive finding to be made on any of the foregoing factors, or to minimize the injurious effect of the variance.

§ 9.02.03. Special provisions where variance is sought to requirements to flood damage prevention regulations

Latest version.

Additional finding. In addition to the findings required above, the board of adjustment shall find that the requested variance will not result in an increase in the base flood elevation, additional threats to public safety, additional public expense, the creation of nuisances, fraud or victimization of the public, or conflicts with other local ordinances.

Considerations. Before granting a variance, the board of adjustment shall consider:

The danger that materials may be swept from the site onto other lands.

The danger to life and property from flooding or erosion.

The potential of the proposed facility and its contents to cause flood damage and the effect of that damage on the owner and public.

The importance of the services provided by the proposed facility to the community, and whether it is a functionally dependent facility.

The availability of alternative locations, not subject to flooding or erosion, for the proposed use.

The compatibility of the proposed use with existing and anticipated neighboring development.

The relationship of the proposed use to the comprehensive plan and floodplain management program for the area.

Safe vehicular access to the property in times of flood.

The expected heights, velocity, duration, rate of rise and sediment transport of the floodwaters, if applicable, at the site.

10.

The costs of providing governmental services during and after floods including maintenance and repair of public utilities and facilities.

Special restriction for regulatory floodways. Variances that would increase flood levels during the base flood shall not be issued within any regulatory floodway.

Flowage easements. No variance that would increase flood damage on other property shall be granted unless flowage easements have been obtained from the owners of all affected properties. In no event shall a variance be granted that would increase the elevation of the base flood more than one foot.

Notification. All variances to the flood damage prevention regulations shall:

Specify the difference between the flood protection elevation and the elevation to which the structure is to be built.

State that the variance will result in increased premium rates for flood insurance up to amounts as high as $25.00 for $100.00 of insurance coverage.

State that construction below the flood protection level increases risk to life and property.

Record of variances to be maintained. The city shall maintain a record of all variances including the justification for their issuance and a copy of the notice of the variance. The city shall report all variances to the Federal Emergency Management Agency upon request.

Historic properties. Notwithstanding the foregoing requirements, special variances may be granted for the reconstruction, rehabilitation or restoration of structures listed on, or classified as contributing to a district or site listed on the National Register of Historic Places or the Florida Master Site File. The special variance shall be the minimum necessary to protect the historic character and design of the structure. No special variance shall be granted if the proposed construction, rehabilitation or restoration will cause the structure to lose its historical integrity as determined by conformance with the U.S. Secretary of the Interior's Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings.

§ 9.02.04. Special exception in R-2 zone

Latest version.

An application (letter) asking for a special exception shall be submitted to the board of adjustment with a copy to the public works superintendent. The board of adjustment can deny or grant the request. A decision of the board of adjustment may be appealed to the city council. If the request for a special exception is approved, the public works superintendent will issue a zoning compliance letter.