§ 14-64. Power and duty of planning commission to hear variances, criteria to be used in deciding variances, and appeals.

(a)

The planning commission shall hear and decide applications for variances from the strict application of Division 3 of Article III of this Chapter 14, known as the subdivision regulations of DeKalb County, where strict application of any regulation enacted in Division 3 of Article III would result in exceptional and undue hardship to the owner of such property. These regulations provide the minimum necessary requirements for subdivisions in DeKalb County; thus, variances from the requirements of Division 3 of Article III shall be authorized only upon the planning commission making all of the following findings:

(1)

By reason of the shape or topographical conditions of a parcel of property which were not created by the owner or applicant, the strict application of Division 3 of Article III would deprive the property owner of rights and privileges enjoyed by other similarly situated property owners in the same zoning district;

(2)

By reason of the shape or topographical conditions of a parcel of property which were not created by the owner or applicant, there is no opportunity for development under any design configuration allowed by these subdivision regulations unless a variance is granted;

(3)

The requested variance does not go beyond the minimum necessary to afford relief, and does not constitute the grant of a special privilege inconsistent with the limitations upon other property owners in the zoning district in which the subject property is located;

(4)

The requested variance will not be materially detrimental to the public welfare or injurious to the property or improvements in the zoning district in which the subject property is located; and

(5)

The requested variance will not in any manner vary the provisions of Chapter 27, the DeKalb County Comprehensive Plan or the zoning map of DeKalb County.

(b)

No variance shall be granted by the planning commission to:

(1)

Allow any variance which conflicts with or changes any requirement enacted as a condition of zoning or of a special land use permit by the board of commissioners;

(2)

Increase the density allowed on the property; or

(3)

Vary the requirements set forth in sections 14-256 through 14-260.

(c)

Applications for variances must be submitted in writing to the planning director along with the application for sketch plat approval or if a variance becomes necessary after the planning commission has approved the sketch plat, within thirty (30) days of discovery of the condition(s) requiring such a variance from the preliminary plat. Applications shall contain all those materials and documents required by the planning director or the development director that are necessary to demonstrate the necessity for the variance and compliance with the requirements of this Code. At a minimum, the variance application must contain a full explanation of the reasons for the variance and must include a plat that shows the proposed subdivision designed without the variance and a plat that shows the proposed subdivision designed with the variance.

(d)

When the variance application is first considered by the planning commission, the development director and the planning director shall provide the planning commission with written findings of fact and a recommendation for approval or disapproval of the variance.

(e)

Applications for variances that accompany the application for sketch plat approval shall be heard by the planning commission contemporaneously with the public hearing on the sketch plat.

(f)

Applications for variances from the preliminary plat shall be heard at a public hearing by the planning commission at the next meeting of the planning commission held after the filing of a complete application for variance from the preliminary plat. All land development activity associated with a proposed variance from a preliminary plat shall cease until a final decision on the variance is made by the planning commission. Land development activity that is not related to the proposed variance may continue unabated.

(g)

All decisions by the planning commission approving or disapproving a variance must be issued in writing and must provide the grounds for the decision of the planning commission. The planning commission shall issue a final decision on a variance submitted with the application for a sketch plat at the same time that it issues the final decision approving or disapproving the sketch plat. The planning commission shall issue a final decision on a variance from the preliminary plat within fifty (50) days after the first meeting at which the planning commission considers the variance. If a final decision is not made on a subdivision plat variance in accordance with the time constraints set forth in this section, the variance shall stand disapproved.

(h)

Appeals of variances that accompany applications for sketch plat approval shall be made by writ of certiorari to the superior court of DeKalb County. Any person or entity (i.e., an owner, applicant, adjoining neighbor or a neighbor whose property line is within one thousand five hundred (1,500) feet of the nearest property line of the proposed subdivision) aggrieved by a variance decision of the planning commission affecting a preliminary plat, may appeal such decision by filing a petition for writ of certiorari to the superior court of DeKalb County.

(Ord. No. 30-02, Pt. II, 7-9-02; Ord. No. 01-04, Pt. I, 4-13-04)