§ VIII. Administration and enforcement.
(A)
General provisions.
(1)
Building official: Duties. The building official shall administer and enforce this ordinance. In carrying out his duties under this ordinance, the building official shall:
(a)
Applications. Receive all applications for building permits, certificates of zoning compliance, amendments, planning approvals, special plans, special exceptions and variances, review and approach such applications or refer them to the planning commission or board of adjustment as required herein, and make necessary certifications and issue the necessary certificates and approvals.
(b)
Zoning map. Maintain the official zoning map showing the current classification of all land.
(c)
Records. Maintain records of all actions taken under this ordinance.
(d)
Hearings. Represent the municipality in all public hearings before the planning commission, the mayor and board of commissioners, and the board of adjustment and present facts and information to assist the commission or board in reaching a decision consistent with the provisions of this ordinance.
(e)
Initiation of amendments. Propose and recommend the enactment of such amendments to this ordinance, including the zoning map, as are made necessary or desirable or because of changing conditions or because of judicial or administrative proceedings or for the purpose of improving administration and enforcement, all in accordance with the amendment procedure set forth herein.
(2)
Permits, certificates and licenses. No building or other permit, certificate or other document of approval, or license, the use of which may be subject to the provisions of this ordinance shall be issued by any department, agency or board of the municipality until the building official shall have certified that the use to be made of the permit, certificate or other document, or license, is in compliance with the provisions of this ordinance.
(a)
Building permit. No building or other structure shall be erected, moved, added to or structurally altered without a permit therefor issued by the building official. No building permit shall be issued by the building official except in conformity with the provisions of this ordinance unless he receives a written order from the board of adjustment in the form of an administrative review, special exception, or variance, as provided by this ordinance.
(b)
Certificate of zoning compliance. It shall be unlawful to use or occupy or permit the use or occupancy of any building or premises, or both, or part thereof hereafter created, erected, changed, converted, or wholly or partly altered or enlarged in its use or structure until a certificate of zoning compliance shall have been issued therefor by the building official stating that the proposed use of the building or land conforms to the requirements of this ordinance.
No nonconforming structure or use shall be renewed, changed, or extended until a certificate of zoning compliance shall have been issued by the building official. The certificate of zoning compliance shall state specifically wherein the nonconforming use differs from the provisions of this ordinance.
No permit for erection, alteration, moving or repair of any building shall be issued until an application has been made for a certificate of zoning compliance, and the certificate shall be issued in conformity with the provisions of this ordinance upon completion of the work.
A temporary certificate of zoning compliance may be issued by the building official for a period not exceeding six (6) months during alterations or partial occupancy of a building pending its completion, provided that such temporary certificate may include such conditions and safeguards as will protect the safety of the occupants and the public.
(c)
Plans required. Unless furnished with the application for a building permit, each application for a certificate of zoning compliance shall be accompanied by a site plan, in duplicate and drawn to scale, showing the locations and dimensions of existing and proposed structures with supporting open facilities, the ground area to be provided and continuously maintained for the proposed structure or structures. The application shall include such other information as lawfully may be required by the building official, including existing or proposed uses of the building and land, the number of dwelling units the building is designed to accommodate, and such other matters as may be necessary to determine conformance with the requirements of this ordinance. One copy of the plans shall be returned to the applicant by the building official, after he shall have marked such copy either as approved or disapproved and attested to such approval or disapproval by his signature on such copy. One copy of the plans, similarly marked shall be retained by the building official.
(d)
Reserved.
(e)
Required notice for cases: Any required legal/regular notice to the applicant/adjacent property owners for any type of application for case review before the Gulfport City Planning Commission and the Zoning Board of Adjustment and Appeals shall be not less than fifteen (15) days.
(3)
Planning approval and special exception uses. The following procedure shall be followed in processing applications for uses requiring planning approval or for special exception uses:
(a)
Application for planning approval. Within ten (10) days of the receipt of an application, the building official shall transmit the application, together with the proposed site plan, to the planning commission. At its next regular meeting, but in any event within forty-five (45) days of receipt of such application by the building official, the planning commission shall approve or disapprove the application as to location and site plan. Approval may establish conditions and limitations with respect to the site plan. The planning commission shall then return the application, together with its report of approval or disapproval, to the building official and the building official shall notify the applicant.
(b)
Application for special exception use. Within ten (10) days of the receipt of an application, the building official shall transmit the application, together with his report and recommendation, to the board of adjustment, which shall process the application in accordance with its procedure under state law and applicable provisions of this ordinance. At the same time, the building official shall transmit a copy of the application, together with the proposed site plan, to the planning commission. At its next regular meeting, but in any event within forty-five (45) days of receipt of such application, the planning commission shall approve or disapprove the application as to location and site plan. Approval may establish conditions and limitations with respect to the site plan. The special exception use shall be granted only upon approval of both the planning commission and board of adjustment.
(4)
Enforcement: Violations and penalties. The building official shall enforce this ordinance. He may be provided with the assistance of such other persons as the board of commissioners may direct.
(a)
Violations. If the building official finds that any of the provisions of this ordinance are being violated, he shall notify in writing the person responsible for such violation, indicating the nature of the violation and ordering the action necessary to correct it. He shall order discontinuance of illegal use of land, building or structures; removal of illegal buildings or structures or of illegal additions, alterations, or structural changes; discontinuance of any illegal work being done; or shall take any other action authorized by this ordinance to insure compliance with or to prevent violation of its provisions.
(b)
Penalties. Violation of the provisions of this ordinance or failure to comply with any of its requirements (including violation of conditions and safeguards established in connection with grants of variances, special exceptions or planning approval) shall constitute a misdemeanor. Any person who violates this ordinance or fails to comply with any of its requirements shall upon conviction thereof be punished as provided by law. The owner or tenant of any building, structure, premises, or part thereof and any architect, builder, contractor, agent, or other person who commits, participates in, assists in, or maintains such violation may each be found guilty of a separate offense and suffer the penalties herein provided. Nothing herein contained shall prevent the city from taking such other lawful action as is necessary to prevent or remedy any violation.
State Law reference— Penalty for violation of zoning ordinance, Miss. Code Ann. 1972, § 17-1-27.
(5)
Schedule of fees, charges and expenses. The mayor and board of commissioners shall establish a schedule of fees, charges and expenses and a collection procedure for building permits; certificates of zoning compliance; appeals; applications for amendments; approval of special plans, planning approvals, special exceptions and other matters pertaining to this ordinance. The schedule of fees shall be posted in the office of the building official and may be altered or amended only by the mayor and board of commissioners. Until all applicable fees, charges and expenses have been paid in full, no action shall be taken on any application or appeal.
(6)
Appeals from the planning commission. Any person or any officer, department or agency of the city aggrieved by any decision of the planning commission may within fifteen (15) days thereafter appeal therefrom to the mayor and city council by filing with the planning commission a written notice of appeal specifying the decision from which the appeal is taken. In case of such appeal, the planning commission shall cause a transcript of the proceedings in the case to be certified to the mayor and city council, and the matter will be heard on said transcripts. Within seven (7) days after filing the notice of appeal, the appellant shall estimate the cost of preparation of the record on appeal, including, but not limited to, the cost of the preparation of the transcript, and shall deposit that sum with the planning commission. The appellant shall simultaneously file with the planning commission a certificate setting forth the fact of compliance with this subparagraph and shall serve a copy of the certificate upon all other parties, upon the reporter that prepares the transcript, and upon the city clerk.
Upon the appellant's compliance with the requirement to deposit the estimated cost of preparation of the record on appeal as set forth hereinabove, the reporter shall commence preparation of the transcript. The reporter shall acknowledge at the foot of the certificate of compliance the fact that the reporter has received it and the date on which the reporter expects to have the transcript completed and shall serve a copy of the certificate of compliance, so endorsed, on all parties, and the planning commission and the city clerk. The failure of the appellant to prepay the estimated cost of preparation of the record on appeal, including, but not limited to, the cost of preparation of the transcript, may result in a dismissal of the appeal for failure to comply with this regulation.
When either the planning commission, on its own motion or on motion of a party, determines that dismissal may be warranted for failure to comply with this regulation, the city clerk shall give written notice to the party in default, apprising the party of the nature of the deficiency. If the party in default fails to correct the deficiency within seven (7) days after notification, the appeal shall be dismissed by the city clerk. The attorney or representative for the party in default has the burden to correct promptly any deficiency or to see that the default is corrected by the appropriate official.
The city council shall hear the appeal no later than the second regularly scheduled city council meeting after receipt of proper documentation by the city council.
(7)
Appeals from the city council. Appeals from any action of the mayor and board of commissioners shall be governed by any applicable statutes of the State of Mississippi.
(8)
The cost for the transcript of any record on appeal from any decision(s) by the planning commission or board of adjustments shall be the responsibility of the aggrieved party or parties. Further, all other costs, fees and expenses, including but not limited to legal publication, photocopying, postage and other fees, shall be assessed to and paid by the party against whom the decision is made on appeal. The amount of such assessment shall be certified as to accuracy by the city clerk, and notice thereof shall be transmitted to the party against whom such assessments are made. Payments of any and all such assessments shall be due and payable upon receipt of notice. Failure to pay within thirty (30) days of the date of receipt of notice shall allow the city to avail itself of all legal and/or equitable remedies for the collection of such sums.
(B)
Board of adjustment.
(1)
Establishment, attendance and procedure. A board of adjustment is hereby created and established. The board shall consist of seven (7) members, each appointed for a term of five (5) years by the mayor and board of commissioners. Of the members first appointed, one shall be for a term of one year, and one for a term of two (2) years, one for a term of three (3) years, two (2) for a term of four (4) years and two (2) for a term of five (5) years. Vacancies shall be filled by the mayor and board of commissioners for the unexpired term of the member affected. Faithful attendance at all meetings of the board of adjustment and conscientious performance of the duties required of the board, shall be considered a prerequisite of continuing membership. Any member who is absent for three (3) consecutive meetings and for six (6) regular meetings during any one calendar year without cause, shall automatically be removed from the board of adjustment and a subsequent new appointment will be made by the mayor and board of commissioners.
(a)
Proceedings. The board of adjustment shall adopt rules for the conduct of its affairs and in keeping with the provisions of this ordinance. Meetings shall be held at the call of the chairman and at such other times as the board may determine. The chairman, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses. All meetings of the board shall be open to the public.
(b)
Hearings; appeals; notice. Appeals to the board of adjustment concerning the interpretation or administration of this ordinance may be taken by any person aggrieved or by any officer, department, or agency of the city affected by any decision of the building official. Such appeals shall be taken within a reasonable time, but not to exceed thirty (30) days, by filing with the building official and with the board of adjustment a notice of appeal specifying the grounds thereof. The building official shall transmit forthwith to the board all papers constituting the record upon which the action appealed from was taken. The board of adjustment shall fix a reasonable time for the hearing of the appeal, give public notice thereof as well as due notice to the parties in interest, and decide the same within a reasonable time. At the hearing, any person may appear in person or by agent or attorney.
(c)
Stay of proceedings. An appeal stays all proceedings in furtherance of the action appealed from, unless the building official certifies to the board of adjustment after the notice of appeal is filed with him, that by reason of facts stated in the certificate a stay would, in his opinion, cause imminent peril to life and property. In such case, proceedings shall not be stayed other than by a restraining order which may be granted by the board of adjustment or by a court of record on application, on notice to the building official, and on due cause shown.
(2)
Powers and duties. The board of adjustment shall have the following powers and duties:
(a)
Administrative review. To hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by the building official in the enforcement of this ordinance.
(b)
Special exceptions; conditions governing application. To hear and decide only such special exceptions as the board of adjustment is specifically authorized to pass on by the terms of this ordinance; to decide such questions as are involved in determining whether special exceptions should be granted; and to grant special exceptions with such conditions and safeguards as are appropriate under this ordinance, or to deny special exceptions when not in harmony with the purpose and intent of this ordinance. A special exception shall not be granted by the board of adjustment unless it shall find that all of the following conditions exist:
1.
That it is empowered under the section of this ordinance described in the application to grant the special exception;
2.
That the granting of the special exception will not adversely affect the public interest;
3.
That specific rules governing individual special exceptions, as set out in the chart of permitted uses, have been or will be complied with;
4.
That satisfactory provision and arrangement has been made concerning the following, where applicable:
a.
Ingress and egress to property and proposed structures thereon with particular reference to automotive and pedestrian safety and convenience, traffic flow and control, and access in case of fire or catastrophe;
b.
Off-street parking and loading areas where required, with particular attention to items in a. above and the economic, noise, glare or odor effects of the special exception on adjoining properties and properties generally in the district;
c.
Refuse and service areas, with particular reference to the items in a. and b. above;
d.
Utilities, with reference to locations, availability, and compatibility;
e.
Screening and buffering with reference to type, dimensions and character;
f.
Signs, if any, and proposed exterior lighting with reference to glare, traffic safety, economic effect, and compatibility and harmony with properties in the district;
g.
Required yards and other open space;
h.
General compatibility with adjacent properties and other property in the district.
5.
That the special exception will be in harmony with the general purpose and intent of this ordinance.
(c)
Variances; conditions governing applications. To authorize upon appeal in specific cases such variance from the terms of this ordinance as will not be contrary to the public interest where, owing to special conditions and circumstances, a literal enforcement of the provisions of this ordinance would result in unnecessary hardship. A variance from the terms of this ordinance shall not be granted by the board of adjustment unless it shall find that all of the following conditions exist:
1.
That the applicant has demonstrated by written application:
a.
That special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures, or buildings in the same district;
b.
That the special conditions and circumstances do not result from the actions of the applicant;
c.
That an unnecessary hardship is created by the physical character of the property and is peculiar and unusual to such an extent that it is evidence that amendment of the zoning ordinance does not offer a reasonable solution;
d.
That literal interpretation of the provisions of this ordinance would deprive the applicant of rights commonly enjoyed by properties in the same district under the terms of this ordinance. Among such rights commonly enjoyed is right to a reasonable economic return, but such return shall be deemed reasonable if it is equivalent to the economic return which might generally be expected in the district and shall not be based on price paid for the property by the applicant, whether or not paid in reliance on zoning, since any hardship of this kind would be self-inflicted and generally applicable to other properties in the district for which similar prices have been or might have been paid, rather than to the property of the applicant alone;
e.
That the granting of the variance will not confer on the applicant any special privilege that is denied by this ordinance to other lands, structures, or buildings in the same district, other than to permit the applicant to use his property in a manner as nearly equivalent to uses generally permitted in the district as can be allowed with appropriate protection of general public interest, and considering the peculiar and unusual conditions and circumstances involved and the hardship created by such conditions and circumstances;
f.
That the use proposed is permissible by right or with planning approval or by special exception. With respect to the uses of land or structures, this ordinance is declared to be a definition of the public interest and intent, and the spirit of the ordinance will not be observed by any variance permitting a use not permissible by right or with planning approval or by special exception.
No conforming use of neighboring lands, structures, or buildings in the same district, and no permitted or nonconforming uses of lands, structures, or buildings in other districts shall be considered grounds for the issuance of a variance.
2.
That the reasons set forth in the application justify the granting of the variance or of a lesser variance, and that the variance will make possible the reasonable use of the land, structure, or building, subject to the limitations set forth herein;
3.
That the variance will be in harmony with the general purpose and intent of this ordinance and will not alter or be injurious to the essential character of the neighborhood, or otherwise detrimental to the public welfare.
(d)
Powers on appeal. In exercising the above-mentioned powers, the board of adjustment may, so long as such action is in conformity with the terms of this ordinance, reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination appealed from and may make such order, requirement, decision, or determination as ought to be made, and to that end shall have the powers of the building official from whom the appeal is taken. The concurring vote of four (4) members of the board shall be necessary to reverse any order, requirement, decision, or determination of the building official, or to decide in favor of the applicant on any matter upon which it is required to pass under this ordinance, or to effect any variation in the application or this ordinance.
(e)
One-year limitation. All special exceptions and variances, unless otherwise specified by the board of adjustment, shall be void if the project has not commenced within one year of approval. Commencement shall include securing and maintaining a building permit, certificate of occupancy or privilege license for the use specified in the application and generally conforming to the site plan as approved. Failure to continue use of the special exception or variance for a period of more than one year shall result in the special exception or variance being void; and no permit shall be issued in reliance of such approval unless the matter is resubmitted to the board of adjustment for consideration.
(3)
Appeals from the board of adjustment. Any person or any officer, department, or agency of the city aggrieved by any decision of the board of adjustment may within fifteen (15) days thereafter appeal therefrom to the mayor and city council by filing with such board a written notice of appeal specifying the decision from which the appeal is taken. In case of such appeal, the board of adjustment shall cause a transcript of the proceedings in the case to be certified to the mayor and city council, and the matter will be heard on said transcript.
Within seven (7) days after filing the notice of appeal, the appellant shall estimate the cost of preparation of the record on appeal, including, but not limited to, the cost of the preparation of the transcript, and upon the city clerk.
Upon the appellant's compliance with the requirement to deposit the estimated cost of preparation of the record on appeal as set forth hereinabove, the reporter shall commence preparation of the transcript. The reporter shall acknowledge at the foot of the certificate of compliance the fact that the reporter has received it and the date on which the reporter expects to have the transcript completed and shall serve a copy of the certificate of compliance, so endorsed, on all parties, and the board of adjustment and the city clerk. The failure of the appellant to prepay the estimated cost of preparation of the record on appeal, including, but not limited to, the cost of preparation of the transcript, may result in a dismissal of the appeal for failure to comply with this regulation.
When either the board of adjustment, on its own motion or on motion of a party, determines that dismissal may be warranted for failure to comply with this regulation, the city clerk shall give written notice to the party in default, apprising the party of the nature of the deficiency. If the party in default fails to correct the deficiency within seven (7) days after notification, the appeal shall be dismissed by the city clerk. The attorney or representative for the party in default has the burden to correct promptly any deficiency or to see that the default is corrected by the appropriate official.
The city council shall hear the appeal no later than the second regularly scheduled city council meeting after receipt of proper documentation by the city council.
(4)
Appeals from the city council. Appeals from any action of the mayor and board of commissioners shall be governed by applicable statutes of the State of Mississippi.
(Ord. No. 1588, § 1, 2-16-82; Ord. No. 1657, § 1, 3-20-84; Ord. No. 1685, § 1, 11-20-84; Ord. No. 1865, § 1, 12-19-89; Ord. No. 2021, § 1, 6-20-95; Ord. No. 2048, 5-7-96; Ord. No. 2116, § 1, 12-16-97; Ord. No. 2117, § 1, 12-16-97)