Variances and appeals provide flexibility in cases where the strict application of tree ordinance regulations would create an undue hardship or result in an outcome that is in conflict with tree ordinance intent. Appeals are also made for alleged erroneous interpretations of the tree ordinance.
The processes used to grant variances and hear appeals defined within a tree ordinance should be the same processes that are used in other sections of the community’s code.
In some ordinances, the processes are described in the zoning ordinance or unified development code, and not repeated in the tree ordinance. In other ordinances the processes for applying for and granting variances and appeals are written in the body of the tree ordinance.
There are two types of variance procedures described in tree ordinances. For the first type, the administrator may be given the authority to grant a variance for a specific regulations. The request for an administrative variance is required to be submitted to the administrator in writing, and decisions of the administrator may be appealed.
The administrator may be given the power and authority to waive or vary certain requirements of the tree ordinance, which might include:
- Yard setbacks
- Fences, walls, and hedges
- Other minor code variances and minor tree or site plan amendments
For the second type of variance, the process is more formal and usually includes the following:
- Description of the process for submitting a variance request, which must be done in writing to the board of appeals or other authority prior to the approval of any permits
- Statement of the conditions under which a variance may be granted and the minimum standards for granting the variance
- Description of the procedures for appealing a decision of the administrator or the board of appeals on a variance request
In the City of Douglas, variance and appeals procedures are described in Chapter 11. – Hardship Relief in the Part III. Unified Land Development Code (ULDC). These variance and appeals procedures also apply to Section 18. – Tree Preservation in Chapter 5. – Development Standards within the ULDC. Chapter 11 provides a good example of typical criteria that must be met for granting a variance, which include:
- The variance requested arises from a condition that is unique and peculiar to the and, structures and buildings involved; that the particular physical surroundings, the shape, or topographical condition of the specific property involved would result in unnecessary hardship for the owner, lessee or occupant, as distinguished from a mere inconvenience, if the provisions of this Code are literally enforced; that it is a condition not ordinarily found in the same zoning district, and the condition is created by the regulations of this Code, and not by an action or actions of the property owner or the applicant; and
- The granting of the variance will not impair or injure other property or improvements in the neighborhood in which the subject property is located, nor impair an adequate supply of light or air to adjacent property, substantially increase the congestion in the public streets, increase the danger of fire, create a hazard to air navigation, endanger the public safety, or substantially diminish or impair property values within the neighborhood; and
- The granted variance is the minimum variance necessary that will make possible the reasonable use of the land, buildings or structures; and
- The variance is not opposed to the general spirit and intent of the tree ordinance, the zoning regulations, or the community’s comprehensive plan.
Appeals are a way for a person aggrieved by alleged errors or decisions of the arborist, administrator, board of appeals, or public officials to petition for relief from the interpretation or application of a regulation in the tree ordinance to a higher authority. The appeals process for decisions regarding the tree ordinance should be treated the same as any other appeals process described in other parts of the community’s code.
The initial appeal of a decision of the arborist or administrative staff is usually made to one of the following, depending on the authority hierarchy established within the community:
- Department director
- Tree board
- Board of appeals (zoning board of appeals)
Appeals of a decision of one of these individuals or groups usually proceeds to the:
- City manager
- City council or county commission
Appeals of a decision of one of these individuals or groups may eventually end up in the county superior court or other court of jurisdiction.
A timeframe for appealing a decision is often included in the appeals process, with communities requiring that the appeal be filed with 10 to 90 days of a decision. The appeal is required in writing, and certain information is usually required to be provided in the appeal. Appeals to the board of appeals or city council or county commission are usually considered in an open public hearing setting.
Vienna’s public tree ordinance establishes the tree commission in Article VI. – Trees, Division 2. – Tree Commission, and they include a section describing an appeals procedure for decisions of the Vienna Tree Commission. Section 34-238. – Appeals states:
Any person affected by the conduct, acts, findings or decisions of the Vienna Tree Commission may appeal such to the mayor and city council.
- All appeals from the Vienna Tree Commission to the mayor and city council shall be filed with the Clerk of the City of Vienna at city hall and a copy served upon the presiding officer of the Vienna Tree Commission. All appeals shall be filed within 30 days of the date of the conduct, acts, findings, or decisions which are being appealed. All appeals shall be in writing and shall set forth: (1) the specific conduct, acts, findings or decisions which is being appealed; (2) the specific type of relief sought; (3) a short statement of the facts involved; and (4) copies of all documents, maps, plats, and/or photographs which the appealing party desires the mayor and city council to review.
- The city clerk will notify in writing the appealing party and the Vienna Tree Commission as to the time, date and location of any hearing on the appeal from the Vienna Tree Commission to the mayor and city council. Said hearing will be held within 30 days of the receipt of the appeal by the city clerk.