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HomeMy Public PortalAbout120_030_1st Reading-Ord 57-2014, Sec 5-090 Variances MAYOR ,, 5 CITY MANAGER Jason Buelterman ryio Diane Schleicher CITY COUNCIL CITY CLERK Wanda Doyle,Mayor Pro Tem Janet LeViner Barry Brown Rob Callahan CITY ATTORNEY Bill Garbett Edward M.Hughes Monty Parks t4044 Paul Wolff lit' CITY OF TYBEE ISLAND City Council Agenda Item Request Agenda Item Requests and supporting documentation must be submitted to the Clerk of Council by 4:00PM on the Thursday prior to the next scheduled Council meeting. If this form is received after the deadline, the item will be listed on the next scheduled agenda. Council Meeting Date for Request: November 13, 2014 Item: Public Hearing—First Reading Explanation: Text Amendment—Ord. 57-2014. Section 5-090, Variances; City of Tybee Island, petitioner; consideration of standards for granting a variance Budget Line Item Number (if applicable): N/A Paper Work: Attached* Al Audio/Video Presentation** Electronic submissions are requested but not required. Please email to jleviner@cityoftybee.org. ** Audio/video presentations must be submitted to the IT department at City Hall by 4:00PM on the Thursday prior to the scheduled meeting. Submitted by: Dianne Otto Phone/ Email: (912) 472-5031 /dotto @cityoftybee.org Comments: Date given to Clerk of Council: November 4, 2014 * * * P.O. Box 2749—403 Butler Avenue,Tybee Island, Georgia 31328-2749 *Certified* (866) 786-4573—FAX (866) 786-5737 City of Ethics y, www.eityoftybee.org { PLANNING COMMISSION NOTICE OF DETERMINATION Meeting date: October 21, 2014 Project Name/Description: Section 5-090, Variances Action Requested: Text Amendment Special Review _ Subdivision: Site Plan Approval Sketch Plan Approval— Conceptual Variance Preliminary Plan Approval Map Amendment Final Plat Approval Text Amendment X Minor Subdivision Major Subdivision Petitioner has met all documentation requirements, all external approval requirements, and all code requirements, except for the following: not applicable COMMISSIONER FOR AGAINST COMMENTS Bishop X Motion to approve with changes–see below Bossick X _ Bramble X Livingston Absent Major X Second Marion Chair Bishop X The Planning Commission recommends: a Approval ❑ Denial ❑ Continued Demery Bishop motioned to approve with the following changes: add "physical" to (A); add or considerations" to (A)(1); strike th- „ --Ix text from (E)(1)(b); include the 12/1812012 Planning Commission minutes and t-.- 11 12013 City Council minutes in the 1111312014 City Council packet for this item. Planning Commission Chai . � Date: t'd- Jz.. Planning& Zoning Manager: ��AL. , `s... Date: �O/ -� -- (.LJ Sec. 5-090.Variances. PROPOSED ORDINANCE as approved by Planning Commission 10/21/2014 (A) Standards. After an application has been submitted to the zoning administrator designated city official, reviewed by the planning commission, and a public hearing has been held by the mayor and council, the mayor and council may grant a variance from the strict application of the provisions in this Land Development Code only if a physical circumstance, condition, or consideration exists as described in item (1)below. if the following findings are made: (1) That t There are unique physical circumstances or conditions or considerations beyond that of surrounding properties, including a substandard lot of record that existed prior to March 24, 1971 (see Section 3-040); irregularity; narrowness; or shallowness of the lot size or shape; or exceptional topographical or other physical circumstances, conditions, or considerations related to the environment, or to safety, or to historical significance, that is peculiar to the particular property; and; (2) That b Because of such physical circumstances or conditions or considerations, the property cannot be developed in strict conformity with the provisions of this Land Development Code, without undue hardship to the property. (3) A nonconforming use or structure does not constitute a unique physical circumstance, condition, or consideration. (B) Height variances. For height variances, in addition to other requirements, the petitioner shall--be required to add two feet to each side yard setback for each one foot above 35 feet in height and have safe guards consisting of sprinkler systems, smoke detectors and any other fire protection equipment deemed necessary at the time by mayor and council. Where a rear yard abuts a side yard of the adjacent lot, the petitioner shall be required to add two feet to the rear setback for each foot above the 35 feet height, and necessary at the time by mayor and council. No part of any structure shall project beyond 35-feet above the average finished grade of a property except: (1) chimneys, flues, stacks, heating units, ventilation ducts, air conditioning units, gas holders, elevators, and similar appurtenances needed to operate and maintain the building on which they are located. (2) the following items that were existing on the date of the adoption of this ordinance: flag poles, television aerials, water towers and tanks, steeples and bell towers, broadcasting and relay towers, transmission line towers, and electric substation structures. (C) Variance longevity. After a variance has been granted by the mayor and council it shall be valid for a period of 12 months from date of approval. Such approval is based on information provided in the application. Building permits may only be granted for plans consistent with the approved application. Any deviation from the information submitted will require separate approval by the mayor and council. (D) (Reviewing variance applications.} The staff designated city official, planning commission, and governing body, shall consider the factors stated herein in reviewing variance applications in taking action on a particular variance. In exercising the powers to grant variances, the mayor and council may attach any conditions to its approval which it finds necessary to accomplish the reasonable application of the requirements of these regulations. 1 10/23/2014 (E) [Application approval.] Notwithstanding any other provisions of the Code of Ordinances, the staff of the community development department through its department head designated city official may approve applications for variances without the need of public hearings and without the need of review by the planning commission or the mayor and council as follows: h (1) When either of the following circumstances exists: a. The proposed improvement of alteration will not result in an expansion of the existing footprint of the existing structure; or b. No additional encroachment into any setback shall be created by the proposed improvement, construction or addition. Vertical expansion over a portion of a structure IL(2) When each of the following circumstances also exists: a. No encroachment or construction of habitable space or other prohibited improvements will exist beyond below one foot above the base flood elevation; and b. The requested improvements or construction will not violate existing zoning provisions. This subsection shall have specific application to existing nonconforming structures as referred to in section 3-020. If-the staff of the buffing and zoning department finds that the request needs or should have additional review for any reason, it may request review by the planning commission and if the request is approved or purposes of this section, a public hearing before the planning commission shall not be necessary. If the staff procedures described in sections 3 020 and 3 090 as well as the public hearing requirements referred to in section 5 060. In the event the staff request review by the planning commission and the planning procedure applicable to such request before mayor and council. (F) Compliance with ordinances. Notwithstanding any other provision of the Code of Ordinances, no application for a variance may be accepted nor may any variance be granted with respect to any property that is then not in compliance with the requirements of ordinances for the condition on which the variance is sought, unless the applicant files with the application a detailed written explanation of how, when, and by whom the need for a variance was created. In such a case, the planning commission shall make a recommendation to the mayor and council as to whether the variance should be approved or rejected or modified and the mayor and council, following a public hearing,may approve, reject or modify the variance request. In the event property is constructed in violation of the ordinances, the violation status remains until such time as the condition is rectified and placed in conformity with the ordinances. Violations of the ordinances may be subject to the enforcement provisions of this Code and all penalties permissible by law. A variance that is granted under this Ordinance does not excuse prior violations including those that have resulted or may result in enforcement action by the City of Tybee Island. (Ord.No.1999-27,8-12-1999;Ord.No. 2002-08, 5-9-2002;Ord.No. 2002-08 Variances, amended 8-29-2002;Ord. of 8-11-2005) 2 10/23/2014 Mr. Callah. —Recommend approval. Mr. Bishop ec.°d. Mr. Parks h. e in favor of the motion, please signify. [Major, Callahan, Bishop, Marion, and Bryan voted for approval. McNau: ton wa. opposed.] . � Q r n e0rnrm ► Ssr\ Ak LA-e Text Amendment–Section 5-090,Variances —0.e c t w170–je r ( g - 0 1 Z Ms. Otto—At our November meeting, there was much discussion centered on Section A of this document. Before you is a rewritten Section A trying to incorporate your thoughts at the prior meeting. It had been considered, and your direction to me, was to combine what was then items 1 and 2. When I attempted to write it in that fashion, it was unclear when the thought pattern changed from discussing the property to now discussing people, so what is before you does again have a 1 and a 2 with number 1 being about the property and 2 being about the occupants of the property. If you want to somehow suggest that those be combined into one item I will attempt again to do so but for clarity I think it best to separate the two items. The paragraph following what is now 1, 2, and 3, has also been worked on. Where before it was circumstance and condition the word 'consideration' was added as well. Mr. Major—Our current ordinance, 5-090, says that variances can be considered, can be submitted as an application when there are unique physical circumstances or conditions beyond that of surrounding properties. We talked about irregularity, narrowness or shallowness, and because of this the property cannot otherwise be developed. About a year and a half ago we started this discussion in our subcommittee reviewing Section 5, and at that time we recognized that Planning Commission and City Council have regularly approved variance requests that didn't fall into that narrow definition but dealt with issues of environmental circumstances or historical or safety. We granted variances for fewer parking spaces to save a giant oak tree. We have allowed variances for historical buildings to exist within setback requirements. We've allowed stairways into the setbacks because of safety issues; people that could not get themselves out of their third floor. I can't remember ever saying no to an oak tree, a safety issue, or an old building. That is why we came up with this language to say that let's recognize in our ordinance what we've done as a practice. I think generally the public doesn't understand when we talk about hardships to the property and even tonight the hardship didn't really address the issues as stated within our ordinance. We drafted the language and one of the things about irregular lots, or narrow lots, or environmental, safety, or historical issues, if the property changes hands, those circumstances are still there. If I sell my home and I've got a big oak tree and I created a variance to save that tree and somebody buys my home that tree is still there. The same if it is a historical building, it is still going to be a historical building. If there is a safety issue it goes between property owners. We have introduced this concept of disability which I think is a tremendous sentiment but if I request a variance because of a personal disability and I get well, don't have the disability, or move out, does the new owner have to remove what was constructed because now I have a disability for which the driving condition no longer exists? We say in that new paragraph,just after new number 3, we say a request for a variance and the granting of a variance shall not be based upon consideration of personal or financial hardship and I submit that a personal disability is a personal hardship; we are contradicting that. I think it is a great sentiment but I think it is wrought with danger moving forward. You are no longer tying a zoning variance to a property but now to a personal circumstance. I think that is a giant leap from where we have been. Ms. Bryan—I agree with you. I was the one wanting to get that disability part in there just because we had done it before. I still think we should tie that somehow to this safety issue. Mr. Major— If it is a safety issue for me because I have a cast on my leg but it is not a safety issue for you then we are tying it to a personal hardship. I can say it is a great sentiment and Council can always grant variances. Council can look at circumstances and they prove that regularly. But to write into an ordinance something based on personal hardship, I think is a mistake. 18 Ms. Bryan—Maybe if we took the personal hardship out but left in the disability because if you put an elevator in and you sell your house, the elevator is still going to be there. Mr. Major—If you and I have identical homes on identical lots and we both want an elevator but you have someone that would qualify as disabled in your family, you can get your elevator but I can't get mine because we are not looking at the property. Ms. Bryan—You wouldn't need it but I would. Mr. Major—But then someday you're not going to need it and now you've got an elevator and I don't. Mr. Callahan—Can you make a variance temporary or until no longer needed? Ms. Bryan—No. I do agree with you [referring to Mr. Major] in re-reading this again. It doesn't match because we are putting physical into concrete stuff so I do agree with you but I still think that somehow, someway, we need to put something somewhere because we see it all the time. Mr. Parks—To pick that sentiment up, I think John [Major] is absolutely right that Council has the right to grant a variance for somebody that their only option is to put something in and that would be on a case by case, demonstrate your need, basis. If we write it in here that if you have a physical disability, do we ask them to prove it, do we ask to the extent? We're on that slippery slope of we've written something that we can't enforce. Ms. Otto—I don't work with it on a daily basis but I know there are medical privacy laws where I would not be comfortable asking for information about somebody's disability. Ms. Bryan—Being a nurse and a director, yes, you can for a situation like this. You couldn't discuss it with other people but if they were asking for variance and you have to give a legal document,yes, you can. Just like when you get Medicaid for some disability, you have to provide documentation. Ms. Otto— I'm not vested in whatever direction you choose to go with this. Not related to the people's disabilities, as far as the environmental that's been added, I can recall two variances that were approved for trees, one very quickly and one several years later, one commercial and one residential, that those trees were removed. The people got their variances based on an environmental factor but the tree did not survive the length of the benefit they received from having a variance. Mr. Bishop—Last month I asked how was "legitimate considerations" defined because I couldn't find it anywhere. That led us to the creation of the new paragraph 2. To accommodate the discussions John [Major] and Randi [Bryan] were having, why wouldn't the current wording of subparagraph number 1, that says "related to environment or to safety peculiar to the particular property" allow that to fall within the prevue of Council to grant a variance specifically specifying fulltime occupancy by an individual with a physical disability. We are creating a unique class and I think that is going to open up, potentially with that wording, other unique potential classes for variances. Variances pass to the property not to the individual.This is the Land Development Code, a property issue, not a personal item. Ms. Otto—During that discussion last month it was, at a time, proposed health and safety in that section. Mr. Parks—Safety has been the catchall for physical disability. Mr. Parks—If they need a fire escape from the second floor, and it's in the setback but it's the only way out. It's that type of thing—safety. Ms. Bryan—Why don't we take it out? 19 Mr, Major—Remove Section 2. Mr. Parks—I would be very happy with that. Ms. Otto—As a side note, my addition of occupied fulltime was based on conversations I've had with people who have grandpa that comes once a year and cannot get up the stairs. They want to install a ramp but it needs a variance and I was trying to clarify that your direction with this would not be to accommodate a once a year visitor but it would have to be somebody that actually lived fulltime in the structure. Mr. Major—I think we should also remove the red part of Section 3 which will now be Section 2. Mr. Bishop—Dianne [Otto], to accommodate your comment, if you added the word in paragraph one "...there are unique full-time physical circumstances or conditions beyond that...," would that not accommodate the annual visit? It still puts it within the peculiar to the particular property addressing the property versus individuality. Ms. Otto—That would be a solution. Mr. Major—If we take out the personal handicap disability then that is no longer an issue. Mr. Bishop—No, not necessarily. That may be a safety issue peculiar to the property that may be entitled to a variance. I'm just not comfortable with making it specifically fulltime to an individual and physical disability because that doesn't go to the land. Ms. Bryan—We should take that out too. I've got one more thing I would like to take out. The second paragraph in red, not numbered, it says"...a request for a variance and granting shall not be based upon consideration...," I believe we should take out personal and just leave financial. Mr. Major—Shall not be based on personal—isn't that what we're saying? Ms. Bryan— No, if we take out 2 we need to take out this personal. Mr. Parks—I think you're right. Mr. Major—It says we shall not grant a variance based on personal considerations. Mr. Parks—If we take out 2 and put personal into that paragraph, it becomes boilerplate. Ms. Bryan— I don't think it should have been in there anyway. Mr. Major—Take the whole sentence out and the whole self-imposed hardship. I think we should lose that paragraph in red and lose 2. Mr. Bishop—If you go back to 1,the way it is currently worded would cover all of these because that is peculiar to the particular property dealing with environment, safety, historical significance, irregularity, shallowness, or whatever.That is what it is about and you have to come in with that as your variance. Mr. Parks—Start with A and "with consideration", strike that paragraph, if I understand right. "A request for a variance and the granting of a variance" all the way through to "physical circumstance, condition, or consideration." 20 Ms. Otto—The last sentence in that paragraph, "a nonconforming use or structure does not constitute a unique physical condition." There has been confusion during discussions if a structure is nonconforming that that justifies a variance. I would like that incorporated somewhere so we don't lose track in discussions that a nonconforming use is not a hardship. Ms. Bryan—Or you could put it with number 3. Mr. Parks—Yes, that works with number 3. Mr. Major Back to number 1 in red we say that"conditions beyond that of surrounding properties including substandard lot size." I would like that to say"a substandard lot of record" which says that the lot existed before March 24, 1971.There are a lot of substandard lots around. Ms. Otto—The substandard lot size there and the nonconforming use that I just referred to are based on that legal action. Mr. Major—It was a substandard lot of record. A substandard lot could be something that was created yesterday. would reference the section. Mr. Parks—You're saying only substandard lot sizes from 1938 or beyond. Mr. Major—No, 1971. Mr. Parks—1971 or beyond. Mr. Major—I think it is important enough to look at Substandard Lots,Section 3-040: "Any lot of record that existed at the time of the adoption of this ordinance from which this section is derived, March 24, 1971, which has a lot area which is less than that required by this Land Development Code shall be subject to the following..." It can be developed if certain things happen without a variance. If it has water and sewer and meets all setback requirements. If it doesn't meet setback requirements then it can request a variance, and that can be a way to get in to ask for a variance.We've included that but it is not just substandard lots. Ms. Otto—I agree with that. Mr. Parks—If tonight's vote had gone otherwise and if we were Council and if had created a substandard lot tonight, it's not a substandard lot of record by your definition. Mr. Major—Which is why I voted against that. It's not my definition. Mr. Parks—Okay, by the LDC.Then on the lot that we would have created tonight, even if they were within setback requirements, it would still request a variance. Mr. Otto—No. Mr. Major—No. My only question was is that a substandard lot of record as defined? Mr. McNaughton—What are we actually trying to do here with adding a substandard lot of record? Mr. Major—How many times people have come to Planning Commission and in some cases been denied because we said you don't meet our very narrow definition of a hardship? Our counsel, Bubba Hughes, said that he had case law in Georgia where the fact that a lot was a substandard lot of record does in itself define a hardship and therefore make 21 them eligible to request a variance. We heard that so many times I finally said I said, let's put it in the ordinance if we are going to do it. Ms. Otto—I will send the legal action that John Major is referring to so you can read the document. Mr. McNaughton-- If changed as proposed, you could still build on a substandard lot or one that was plotted after 1971 if you got a variance? Mr. Major—Yes,you would be asking for a variance in lot size. Staff can grant a building permit on a lot built before March 24, 1971,that meets all the setback requirements, has water and sewer, without coming before the Planning Commission. So if you have a 6,000 square feet lot and a 12,000 square feet requirement, Dianne grants a permit. Ms. Otto—That is correct. Ms. Bryan—But the one tonight, you would still have to get a variance. If we require 12,000 square feet lot and this is only 5,400, you're still not meeting the requirements of the zoning district so you would still need a variance. Ms. Otto— No, not if it is a lot of record. There are many, many lots in R-1 where that 12,000 high standard is,that are developed without setback encroachments at the staff level. Mr. Major— Did those lots of record exist before March 24, 1971? Ms. Otto—They are lots of record. I don't know the date they became lots of record. If they've been through Council and been approved as a subdivision, for example, and that standard lot size was not required when that subdivision was created,they become lots of record and can be developed. Mr. Parks—I'm open to a motion. Mr. Major—I recommend approval of the ordinance in front of us with the changes that have been suggested here which include adding in Section 1 substandard lot of record, removal of paragraph 2 altogether, removing from 3 which now becomes 2 the words"or to the use of the property by a fulltime occupant", removal of all of the following paragraph and renumbering it as number 3 and removing of the first and second sentence leaving as number 3, "a nonconforming use or structure does not constitute a unique physical circumstance, condition or consideration." • Ms. Otto—May we also go back to the first paragraph where it is currently referring to 1, 2, and 3 and clarify that if Item 1 is satisfied then there is no 2 or 3. Mr. Callahan—Second. Mr. Parks—Those in favor, please signify. [Vote was unanimous.] Mr. Callahan—Move we adjourn. [There was no second.] Mr. Parks—Thank you everyone. Meeting ended at 21:35 Minutes by Terris Bryant; edited by Dianne Otto 22 ikt This is due to his neighbor's lights. He would recommend that the ordinance before mayor and coun ' be adopted as written with all lighting visible from the beach and ne construction comply , mediately. Compliance for residential buildings within ten year nd commercial buildings ,Thin five. Ms. Otto gave a short presentation to xplain foot-candle recommendati. s. Mr. Groover expressed his concerns with the trespas of lighting. Mr. Wolff agrees with Mr. :rbett with regard to quality of life issues and there .re many ways described with the ordinance hat is before mayor and council to manag- lighting on the Island by shielding and positioni .. He also agrees that the proposed ord" ante needs further work and it is overboard in some yeas. Barry Brown made a motion o deny in its entirety and send back to Planning Commis on to simplify and without as uch regulation. Wanda Doyle seconded. Discussion: Mr. Groover asked if the City Ii. is would need to be replaced. Ms. Otto responded no as they are hielded on one side. disagreed with Ms. Otto in regards to lighting on the Strand. Ms. Doyl recommended S- ion 18-009 be totally removed. Ms. Fox suggested that mayor and council bmit their •.rked-up copy of the proposed ordinance to Ms. Otto so she can compile and then .resent .t the upcoming city council workshop. Barry Brown withdrew his motion, Wanda 'o e withdrew her second. Barry Brown made a motion to continue. Wanda Doyle seco. ed. Vote was unanimous. First Reading, 02-2013, Turtle Ne- ing •rotection. Ms. Otto stated that due to action on the above ordinance, 01-2013, may and cou'cil need not to repeal this ordinance until Article 18 is adopted, Section 5-030 ne-.s to remain. • action taken. First Reading, 09-2013, F- -s. Ms. Otto re.. the ordinance pointing out the proposed changes. Ms. Fox feels th- ee schedule needs to - displayed in a specific location as it is too vague. She would reco, mend posting the fee sched e in the clerk's or zoning office or both. Mayor Buelterman as -d Ms. Schleicher opinion of posti the fee schedule in the clerk's office. Mr. Wolff suggest:i the schedule be posted on the bulleti •oard outside the clerk's office. Ms. Fox stated aft- ' a short discussion, her preference would le the schedule is posted in the Planning an. oning Office. Paul Wolff made a motion to a.+rove as amended which would change t language "fees for each individual permit or zoning a ."on are subject to change by mayor .nd council. Please see the schedule of fees adopted by m. or and council which are dis; ayed conspicuously at city hall". Bill Garbett seconded. Vote was nanimous. : o,)n c; First Reading, 10-2013, Section 5-090, Variances. Withdrawn. , '0,,n . 1p' Z O 3 Fl Reading, 1 -2013, Section 5-010, Permits Required for Construction. With wn. Second'-eadin:,, 05-2013, Section 5-070, Standard Special Review. Paul Wolff made a motion t; ap► ove. Bill Garbett seconded. Vote was unanimous. Second Re ting, 06-2013, Section 14-060, Demolition, Relocation. Wanda Doyle made a m.'io' ,to approve. Paul Wolff seconded. Vote was unanimous. Second •eadi ., 07-2013, Section 5-009, Permit Prerequisite. Wanda Doyle made a motion '. approv- Paul Wolff seconded. Voting in favor were Paul Wolff, Tom Groover, Jan Fox, anda Doyle . d Bill Garbett. Voting against was Barry Brown. Motion carried 5-1. Se«,nd Reading, 4 -2013, Section 4-050, District Use Regulation. Wanda Doyle m.de a motion to appr+ve. Paul Wolff seconded. Vote was unanimous. ORDINANCE NO. 57-2014 AN ORDINANCE TO AMEND THE CODE OF ORDINANCES PERTAINING TO SECTION 5-090 REGARDING VARIANCES FOR THE CITY OF TYBEE ISLAND, GEORGIA WHEREAS, the duly elected governing authority for the City of Tybee Island, Georgia, is authorized under Article 9, Section 2, Paragraph 3 of the Constitution of the State of Georgia to adopt reasonable ordinances to protect and improve the public health, safety, and welfare of the citizens of Tybee Island, Georgia, and WHEREAS, the duly elected governing authority for the City of Tybee Island, Georgia, is the Mayor and Council thereof, and WHEREAS, the governing authority desires to adopt ordinances under its police, zoning, and home rule powers, and WHEREAS, the City of Tybee Island so as to amend Section 5-090, Variances, so as to clarify its terms; and NOW, THEREFORE, it is hereby ordained by the governing authority of the City of Tybee Island that Section 5-090 of the Code of Ordinances of the City of Tybee Island shall be amended. SECTION 1 Section 5-090 will be amended and will read as follows: Sec. 5-090. Variances. (A) Standards. After an application has been submitted to the designated city official, reviewed by the planning commission, and a public hearing has been held by the mayor and council, the mayor and council may grant a variance from the strict application of the provisions in this Land Development Code only if a physical circumstance, condition, or consideration exists as described in item (1)below. (1) There are unique physical circumstances or conditions or considerations beyond that of surrounding properties, including a substandard lot of record that existed prior to March 24, 1971 (see Section 3-040); irregularity; narrowness; or shallowness of the lot shape; or exceptional topographical or other physical circumstances, conditions, or considerations related to the environment, or to safety, or to historical significance, that is peculiar to the particular property; and; (2) Because of such physical circumstances or conditions or considerations, the property cannot be developed in strict conformity with the provisions of this Land Development Code, without undue hardship to the property. (3) A nonconforming use or structure does not constitute a unique physical circumstance, condition, or consideration. (B) Height. No part of any structure shall project beyond 35-feet above the average finished grade of a property except: (1) chimneys, flues, stacks, heating units, ventilation ducts, air conditioning units, gas holders, elevators, and similar appurtenances needed to operate and maintain the building on which they are located. (2) the following items that were existing on the date of the adoption of this ordinance: flag poles, television aerials, water towers and tanks, steeples and bell towers, broadcasting and relay towers, transmission line towers, and electric substation structures. (C) Variance longevity. After a variance has been granted by the mayor and council it shall be valid for a period of 12 months from date of approval. Such approval is based on information provided in the application. Building permits may only be granted for plans consistent with the approved application. Any deviation from the information submitted will require separate approval by the mayor and council. (D) Reviewing variance applications. The designated city official, planning commission, and governing body, shall consider the factors stated herein in reviewing variance applications in taking action on a particular variance. In exercising the powers to grant variances, the mayor and council may attach any conditions to its approval which it finds necessary to accomplish the reasonable application of the requirements of these regulations. (E) Application approval. Notwithstanding any other provisions of the Code of Ordinances, the designated city official may approve applications for variances without the need of public hearings and without the need of review by the planning commission or the mayor and council as follows: (1) When either of the following circumstances exists: a. The proposed improvement of alteration will not result in an expansion of the existing footprint of the existing structure; or b. No additional encroachment into any setback shall be created by the proposed improvement, construction or addition. (2) When each of the following circumstances also exists: a. No encroachment or construction of habitable space or other prohibited improvements will exist beyond below one foot above the base flood elevation; and b. The requested improvements or construction will not violate existing zoning provisions. This subsection shall have specific application to existing nonconforming structures as referred to in section 3-020. (F) Compliance with ordinances. Notwithstanding any other provision of the Code of Ordinances, no application for a variance may be accepted nor may any variance be granted with respect to any property that is then not in compliance with the requirements of ordinances for the condition on which the variance is sought, unless the applicant files with the application a detailed written explanation of how, when, and by whom the need for a variance was created. In such a case, the planning commission shall make a recommendation to the mayor and council as to whether the variance should be approved or rejected or modified and the mayor and council, following a public hearing, may approve, reject or modify the variance request. In the event property is constructed in violation of the ordinances, the violation status remains until such time as the condition is rectified and placed in conformity with the ordinances. Violations of the ordinances may be subject to the enforcement provisions of this Code and all penalties permissible by law. A variance that is granted under this Ordinance does not excuse prior violations including those that have resulted or may result in enforcement action by the City of Tybee Island. SECTION 2 The sections, paragraphs, sentences, clauses and phrases of this ordinance are severable and, if any phrase, clause, sentence, paragraph, or section of this ordinance shall be declared illegal or invalid by the valid judgment or decree of any court of competent jurisdiction, such illegality shall not affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this ordinance. SECTION 3 All ordinances and parts of ordinances in conflict herewith are expressly repealed. SECTION 4 It is the intention of the governing body, and it is hereby ordained, that the provisions of this ordinance shall become effective and be made a part of the Code of Ordinances, City of Tybee Island, Georgia, and the sections of this ordinance may be renumbered to accomplish such intention. SECTION 5 This ordinance shall be effective upon its adoption by the Mayor and Council pursuant to the ordinances of the City. ADOPTED THIS DAY OF , 2014. MAYOR ATTEST: CLERK OF COUNCIL FIRST READING: SECOND READING: ENACTED: EMH/Tybee/Ordinances/57-2014 Sec 5-090 Variances 11.04.14