§ 7-16. Technical board of appeals.

(a)

Appointment. There is hereby established a technical board of appeals, which shall consist of nine (9) members. The chief executive officer shall appoint two (2) members and each member of the board of commissioners shall appoint one (1) member to the technical board of appeals. The director of the development department shall serve as a non-voting ex-officio member of the technical board of appeals.

(b)

Qualifications of members. All members of the board shall be residents and homeowners in DeKalb County. All members of the board, except the citizen appointees from commission districts six and seven, shall have at least seven (7) years experience in the building industry. One (1) of the members of the board shall be a civil engineer having experience in drainage and structural issues and one (1) member shall be an architect licensed in Georgia with a minimum of seven (7) years experience in residential-home-design. Members of the board shall hold no other county office, appointed position within the county or any other county compensated position.

(c)

Filling board vacancies generally. Any vacancy on the board shall be filled in accordance with the original appointing procedure for the vacant position. Any newly appointed member shall serve for the remainder of the unexpired term.

(d)

Initial terms of members. The nine (9) board members who are appointed by virtue hereof shall hold initial terms of office as follows:

(1)

Commissioners representing districts two and three and seven shall each appoint one (1) board member who shall hold office through the last day of December, 2006;

(2)

Commissioners representing districts one, four, five and six shall each appoint one (1) board member who shall hold office through the last day of December, 2008; and

(3)

The chief executive officer of DeKalb County shall appoint two (2) board members. One (1) board member shall hold office through the last day of December 2006 and the other board member shall hold office through the last day of December 2008.

(4)

Subject to section 7-16(e), the successors to each of the initial appointments shall hold office for a period of four (4) years from the end of the previous term.

(e)

Terms of board members. Terms of each board member shall absolutely expire on the last day of the actual term in office of the appointing official or on the last day of December of the board member's four-year term, whichever comes first, regardless whether a successor has been appointed to the board member's position.

(f)

Successive terms. Members of the board may be reappointed to successive terms, but in no event shall a member be permitted to serve more than eight (8) consecutive years.

(g)

Organization, officers and rules. The board shall elect a chair, vice-chair and secretary. The persons so elected shall serve in these capacities for a term of one (1) year. No person may serve in any of these capacities for more than three (3) consecutive years. The vice-chair will preside at the meetings of the board in the chair's absence. The board shall determine its procedural rules and regulations, and otherwise take such action as is appropriate for the management of the affairs committed to its supervision. The board's rules and regulations shall be consistent with this chapter and necessary to carry out the provisions of this chapter.

(h)

Quorum. Five (5) members of the board shall constitute a quorum at any meeting and a vote of five (5) voting members shall be required to enable the board to act.

(i)

Meeting accommodations and staff support. The governing authority of the county shall provide the board with suitable office space, meeting accommodations and clerical support, as the governing authority shall deem appropriate and necessary.

(j)

Compensation for board members. The governing authority of DeKalb County shall determine compensation for members of the board.

(k)

Removal at will. The chief executive officer or the appointing member of the board of commissioners shall have authority to remove the member of the technical board of appeals appointed by such official, at will, with out without cause.

(l)

Removal for cause. Any member of the board may be removed from the board at anytime for cause by the governing authority of DeKalb County, after written notice and an opportunity to be heard within fourteen (14) days after notice. A majority vote of the full membership of the board of commissioners shall be necessary in order to remove a member from the board for cause. Cause shall include but is not limited to misconduct, incompetence, failure to attend three (3) consecutive meetings of the board, failure to attend seventy-five (75) percent or more of the board's meetings within any calendar year, conviction of any felony, or conviction of a misdemeanor related to violence or moral turpitude. In the event of resignation or removal of a member, the newly appointed member shall serve the remainder of the unexpired term.

(m)

Powers and duties. The board shall have the following powers:

(1)

To hear appeals of decisions and interpretations of the director;

(2)

To hear appeals of the director's decision related to the use of alternative materials, designs, methods of construction, equipment and appliances pursuant to section 7-31(m);

(3)

To hear appeals of the director's decision related to unsafe conditions as regulated in section 7-40;

(4)

To hear and grant variances from the provisions of Division 3 of this chapter;

(5)

To hear and grant applications for pre-qualification of alternate registered engineers as referenced in section 7-34(i) as well as remove pre-qualification status from alternate registered engineers as the board deems appropriate in its sole discretion; and

(6)

To review proposed amendments to the land development and technical codes and provide recommendations on such amendments to the governing authority.

(n)

Application forms; filing of applications; application fees. Applications for appeals, variances, and alternate registered engineers shall be filed on forms provided by the development department and shall not be considered authorized or accepted unless complete in all respects, including the payment of any application fees. Application fees shall be established by the board of commissioners.

(o)

Appeals of the director's decisions.

(1)

Notice of appeal of a decision by the director to the board shall be in writing and filed with the director within thirty (30) calendar days after the director's decision is rendered. Appeals shall be on a form provided by the development director.

(2)

An appeal shall be sustained only upon an express written finding by the board that the director's action was based on an erroneous finding of a material fact, or that the director acted in an arbitrary manner. In exercising its powers, the board may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from, and to that end shall have all the powers of the director from whom the appeal was taken and may issue or direct the issuance of a permit provided all requirements imposed by all applicable laws are met. The board may also remand any appeal for the receipt of additional information.

(3)

In the case of a building, structure or service system which, in the opinion of the director, constitutes an unsafe condition as that terms is used in section 7-40, the director may, in the decision or order, limit the time for the filing of such appeals to not less than two (2) days and the director may request expedited review by the board of the appeal.

(4)

If the director's decision(s) results in a revocation or denial of the issuance of any permit or certificate authorized by this chapter, the affected applicant or permittee may request, and shall be allowed, to meet with the director within two (2) business days after the initial issuance of such order or decision. At such meeting the affected applicant or permittee shall be allowed to present any evidence or testimony to the director that the applicant deems appropriate. If such a meeting is not requested or the director does not alter the decision to revoke or deny the issuance of any permit or certificate, then the director's decision becomes final. During the pendency of any subsequent appeal to the board, the notice of appeal shall not stay enforcement of the director's decision and the applicant or permittee may not take any action, perform any act or occupy any structure that contradicts the director's revocation or denial decision in this regard.

(p)

Variances.

(1)

The owner of a building, structure or service system, or duly authorized representative, may file a request to the board to vary any provision of the technical codes in accordance with the provisions of this section on forms promulgated by the director.

(2)

In granting a variance, the board may prescribe appropriate conditions and safeguards in conformity with this Code. Violation of the conditions of a variance shall be deemed a violation of this Code.

(3)

No variance may be granted unless such variance can be granted without substantial detriment to the public good and without substantial impairment of the intent and purpose of this chapter. No variance shall be granted by the board to:

(A)

Allow any variance which conflicts with or changes any requirement established as a condition by the board of commissioners or the zoning board of appeals;

(B)

Reduce, waive or modify in any manner any minimum standards set forth in the adopted codes generally identified in section 7-51, as amended; and

(C)

Reduce, waive or modify any environmental protection measures such as tree protection and/or soil erosion and sedimentation control.

(4)

The board shall grant variances from the provisions or requirements of this chapter only upon making written findings of the following:

(A)

The strict application of the requirements of this chapter would deprive the building, structure or service system owner of rights and privileges enjoyed by other building, structure or service system owners within the county;

(B)

The requested variance does not go beyond the minimum necessary to afford relief, and does not constitute a grant of special privilege inconsistent with the limitations upon other building, structure or service system property owners within the county;

(C)

The grant of the variance will not be materially detrimental to the public welfare or injurious to the property or any improvements;

(D)

The liberal interpretation and strict application of the applicable provisions or requirements of this chapter would cause undue and unnecessary hardship;

(E)

The method or material requested is at least as protective as the method or materials required by this chapter; and

(F)

The applicant has supplied the county with an independent study or analysis by a registered design professional that shows that the method or material meets or exceeds the methods or materials required by this Code.

(q)

Procedures of the board.

(1)

Hearings open to public. All hearings of the board shall be open to the public and the agenda shall be made available at least two (2) business days prior to the meeting of the board. Matters not placed on the agenda in compliance with this section shall not be heard by the board, except for appeals involving a structure or service system that, in the opinion of the director, is unsafe, unsanitary or uninhabitable. The board shall meet every thirty (30) days.

(2)

Decisions. The board shall, in every case of an appeal of a decision or interpretation of the director or a variance request, reach a final decision within thirty (30) calendar days from the date of the final hearing. Each decision of the board shall be in writing and shall include the basis for the decision. Every decision shall be promptly file-stamped in the office of the development department and shall be available for public inspection. A copy of the decision shall be delivered by mail at the address in the notice of appeal or application for variance to the person who filed the appeal or request for a variance.

(r)

Appeals from decisions of the technical board of appeals.

(1)

Method of appeal. Any person aggrieved by a final decision of the board may seek review of such decision by petitioning the Superior Court of DeKalb County for a writ of certiorari, setting forth plainly the alleged errors. Such petition shall be filed within thirty (30) calendar days after the final decision of the board is rendered.

(2)

Notice to board. In any such petition, the board shall be designated the respondent in certiorari and DeKalb County, along with any other party required by law to be named, shall be named as the defendant(s) in certiorari. The secretary of the board shall be authorized to acknowledge service of a copy of the petition and writ for the board as respondent. Service upon the county as defendant shall be as otherwise provided by Georgia law. Within the time prescribed by Georgia law, the board shall cause to be filed with the clerk of DeKalb County Superior Court a duly certified record of the proceedings had before the board, including a transcript of the evidence heard before it, if any, and the decision of the board.

(Ord. No. 04-09, Pt. I, 8-10-04; Ord. No. 05-09, Pt. I, 7-26-05)

Editor's note

Ord. No. 04-09, Pt. I, adopted Aug. 10, 2004, deleted former § 7-16 of the Code in its entirety and adopted new provisions as § 7-16. Former § 7-16 pertained to the development advisory board and derived from Ord. No. 89-11, § 1(9-1121), adopted March 28, 1989; and Ord. No. 95-15, § 1, adopted Nov. 28, 1995.