§ 14-44.4. Administrative variance criteria, standard of review and process.

(a)

Except as further limited herein, the director has the authority to grant stream buffer variances.

(b)

An applicant may request a variance from the terms of the requirements of section 14-44.1 et seq.

(c)

The director shall have no power to consider or to grant variances which are the responsibility of the director of the EPD pursuant to O.C.G.A. § 12-2-8 and other relevant state statutes and regulations.

(d)

The director is only authorized to consider applications for variances within the twenty-five (25) feet of the county stream buffer farthest from the stream, but not within the twenty-five (25) feet of the state buffer adjacent to waters of the state or within the twenty-five feet (25) feet of the county stream buffer nearest the stream.

(e)

Where variances involving the same project are requested from both the director of the EPD and the director, the director may take no action on any such request for variance until the director of the EPD grants the variance or otherwise approves the request pending before the EPD.

(f)

Receiving a variance from the director of the EPD does not obligate the director to permit the project to proceed if the project does not also meet all the other requirements of this article.

(g)

The director has the discretion to deny any variance application based on:

(1)

The condition of the stream on the property;

(2)

Upstream and downstream condition of the stream; and

(3)

The steams that are listed in 303(d) registry of the state.

(h)

No variance from the provisions of section 14-44.1 et seq. may be authorized except as specifically authorized herein or specifically authorized in another section of chapter 14. No stream buffer variance shall be approved within the existing or year 2025 built-out condition flood plain.

(i)

In considering a request for a variance to the terms of this article, the director shall consider all of the following criteria:

(1)

Whether the request, while not strictly meeting the requirements of chapter 14, will, in the judgment of the director, be at least as protective of natural resources and the environment as would a plan which met the strict application of these requirements. In making such a judgment, the director shall examine whether the request will be at least as protective of the natural resources and the environment and shall consider the following factors:

a.

Stream bank or soil stabilization.

b.

Trapping of sediment in surface runoff.

c.

Removal of nutrients, heavy metals, pesticides and other pollutants from surface runoff.

d.

Terrestrial habitat, food chain, and migration corridor.

e.

Buffering of flood flows.

f.

Infiltration of surface runoff.

g.

Noise and visual buffers.

h.

Downstream water quality.

i.

Impact on threatened and endangered species, as those species are designated by law or federal or state regulation. The shape, size, topography, slope, soils, vegetation and other physical characteristics of the property.

j.

The locations of all streams on the property, including along property boundaries.

k.

The location and extent of the proposed buffer or setback intrusion.

l.

Whether alternative designs are possible which require less intrusion or no intrusion.

m.

The long-term and construction water-quality impacts of the proposed variance.

(2)

Whether by reason of exceptional topographic or other relevant physical conditions of the subject property that was not created by the owner or applicant, there is no opportunity for any development under any design configuration unless a variance is granted.

(3)

Whether the request goes beyond the minimum necessary to afford relief and constitutes a grant of special privileges inconsistent with the limitations upon other properties that are similarly situated.

(4)

Whether the grant of the variance will be materially detrimental to the public welfare or injurious to the property or improvements in the area in which the property is located.

(5)

Whether the applicant has provided a mitigation plan designed and stamped by Georgia-licensed design professionals and whether that proposed mitigation plan is:

a.

Nonstructural;

b.

Designed to improve the quality of the stream and the associated buffer; and

c.

Includes a planting schedule and channel protection design.

(6)

Whether the literal interpretation and strict application of the applicable provisions or requirements of chapter 14 would cause an extreme hardship, so long as the hardship is not created by the owner. The applicant is responsible for providing proof of hardship. The proof shall demonstrate the difficult site conditions and possible alternate designs. The director shall not grant any stream buffer variances if the actions of the property owner of a given property have created the conditions of hardship on the property.

(j)

The director shall decide whether to grant or deny the variance and his decision shall be in writing, shall state the basis for the decision, and shall be made no more than forty-five (45) days following receipt of a complete application. In the decision, the director shall specifically reference and describe the factors listed in subsection (i) above that were considered and utilized in making the variance decision.

(k)

Any county projects, other than those exempted in section 14-44.2, are required to obtain a stream buffer variance. For such projects, encroachments shall be limited to the minimum necessary to achieve the project goal and shall be limited to specific locations within the county fifty-foot buffer. Appeal of a variance approval or denial for a county project shall be made to the board of commissioners.

(Ord. No. 09-05, Pt. 1, 2-24-09)