Duluth UDC § 803.02

Variance requests from the requirements of this Code Division shall be submitted on an application form as prescribed by the Planning and Development Director or the director’s designee, along with such fees as shall be established by the Mayor and City Council. The Planning and Development Director or the director’s designee shall coordinate the review of each variance request with all other affected City of Duluth departments and shall forward such comments or recommendations as may be received to the Zoning Board of Appeals for action in their normal course of business. The review must include a recommendation from the Planning and Development Department. This section describes how to apply for a variance from this Code Division, however any activity within a state waters’ buffer must meet State requirements. 1. Variances may be granted in accordance with the following provisions: a. The project involves the construction of one single family home for residential use by the owner of the subject property on a parcel that was platted prior to the effective date of this Code Division, and its shape, topography or other existing physical condition prevents land development consistent with this Code Division, and the Planning and Development Department finds and determines that the requirements of this Code Division prohibit the otherwise lawful use of the property by the owner, the Zoning Board of Appeals may grant a variance from the buffer and setback requirements hereunder, provided such variance requires mitigation measures to offset the effects of any proposed land development on the parcel. The Zoning Board of Appeals is authorized to use a consent agenda to fulfill the terms of this Subsection. b. Except as provided above, the Zoning Board of Appeals shall grant no variance from any provision of this Code Division without first conducting a public hearing on the application for variance and authorizing the granting of the variance by an affirmative vote of the Board. The Planning and Development Department shall follow the Public Hearing, or “notice”, requirements for a variance to be heard by the Zoning Board of Appeals as provided in the Procedures and Permits Article of this UDC. No application or reapplication for a variance affecting the same stream segment on a property shall be heard within 12 months from the date of last action by the Zoning Board of Appeals unless such 12-month period is waived by the Zoning Board of Appeals, and in no case may such application or reapplication be reconsidered in less than six months from the date of last action by the Zoning Board of Appeals. 2. Variances will not be considered when, following adoption of this Code Division, actions of any property owner of a given property have created conditions of a hardship on that property. 3. Variances will be considered only in the following cases: a. The applicant provides evidence that impacts to the buffer have been avoided or minimized to the fullest extent practicable; and b. The project involves the construction or repair of a structure that, by its nature, must be located within the buffer. Such structures include dams and detention/retention ponds; or c. Paved recreational foot trails and viewing areas, providing that impacts to the buffer are minimal; or d. The proposed land disturbing activity within the buffer will receive a permit from the United States Army Corps of Engineers (USACE) under Section 404 of the federal Water Pollution Control Act Amendment of 1972, 33 U.S.C. Section 1344, and the Corps of Engineers has received a mitigation plan to be implemented as a condition of such a permit. In addition, land disturbing activities in the buffer that are outside the USACE’s jurisdiction must be mitigated; or 215 | P a g e Article Eight. Environmental Protection e. The buffer intrusion is mitigated using the procedure established in the Georgia Stormwater Management Manual, latest edition; or f. A valid and complete application for rezoning of the property is submitted prior to the effective date of this Code Division and approval of the rezoning by the Mayor and City Council occurs after the effective date of this Code Division application, and the variance request is consistent with the intent of this Code Division factoring into account the property owner's reliance on standards in effect at the time of the rezoning. 4. At a minimum, a variance request shall include the following information: a. A site map that includes locations of all streams, wetlands, floodplain boundaries and other natural features, as determined by field survey; b. A description of the shape, size, topography, slope, soils, vegetation and other physical characteristics of the property; c. A dated site plan that shows the locations of all existing and proposed structures and other impervious cover, the limits of all existing and proposed land disturbance, both inside and outside the buffer and setback. The exact area of the buffer to be affected shall be accurately and clearly indicated; d. Documentation that impacts to the buffer have been avoided or minimized to the fullest extent practicable; e. A calculation of the total area and length of the proposed intrusion; f. A stormwater management site plan, if applicable; g. Proposed mitigation, if any, for the intrusion. If no mitigation is proposed, the request must include an explanation of why none is being proposed; h. A description of the project, with details of the buffer disturbance, including estimated length of time for the disturbance and justification for why the disturbance is necessary; i. Any other reasonable information related to the project that the Planning and Development Department may deem necessary to effectively evaluate the variance request; j. A copy of the permit application, supporting documentation, and proposed mitigation plan as submitted to the United States Army Corps of Engineers under Section 404 of the federal Water Pollution Control Act Amendment of 1972, 33 U.S.C. Section 1344, if applicable; k. A copy of the permit application, supporting documentation, and proposed mitigation plan as submitted to the Georgia Environmental Protection Division for a variance from the state waters’ buffer; and l. A buffer mitigation plan in accordance with the procedure outlined in the Georgia Stormwater Management Manual. 5. The following factors will be considered in determining whether to issue a variance: a. The shape, size, topography, slope, soils, vegetation and other physical characteristics of the property; b. The locations of all streams on the property, including along property boundaries as determined from field inspection; c. The location and extent of the proposed buffer or setback intrusion; and, d. Whether alternative designs are possible which require less intrusion or no intrusion; e. The long-term and construction water-quality impacts of the proposed variance; f. Whether issuance of the variance is at least as protective of natural resources and the environment; g. The value of mitigation activities as calculated in accordance with the Georgia Stormwater Management Manual, latest edition. 216 | P a g e Article Eight. Environmental Protection