1133.06 POWERS OF THE BOARD OF APPEALS.
The Board of Zoning Appeals shall hear appeals on decisions made by the Building Commissioner or by any administrative officer, in matters relating to this Zoning Code, for relief from any order, requirement, decision or determination, including the refusal, granting or revocation of permits, and may thence decide appeals by either reversing, affirming, wholly or in part, or modifying, such order, requirement, decision or determination. The Board shall also have the following powers:
(a) Conditional Uses, Special Exceptions and Interpretation of Zoning Text and Maps. The Board shall have the power to hear and decide, in accordance with the provisions of this Zoning Code, an application, filed as hereinbefore provided, for conditional uses, special exceptions or for interpretation of the Zoning Code text or maps, or for decisions upon other special questions upon which the Board is authorized to pass by this Zoning Code. In considering an application for a conditional use, a special exception, or interpretation of the Zoning Code text or maps, the Board shall give due regard to the nature and condition of all adjacent uses and structures, and in authorizing a conditional use or special exception, the Board may impose such requirements and conditions with respect to location, construction, maintenance and operation, in addition to those expressly stipulated in this Zoning Code for the particular conditional use or special exception, as the Board may deem necessary for the protection of adjacent properties and the public interest, health, safety and general welfare.
(b) Other Conditional Uses. In addition to permitting the conditional uses and special exceptions hereinbefore specified, the Board shall have the power to permit the following conditional uses and special exceptions, subject to the provisions of Section 1127.17.
(1) Nonconforming uses; substitution. The Board shall have the power to substitute a nonconforming use existing at the time of enactment of this Zoning Code (Ordinance 72-13, passed July 11, 1972) with another nonconforming use if no structural alterations, except those required by law or resolution, are made; provided, however, that any such change is to a use of the same degree of nonconformity as determined by the most restrictive district in which the existing nonconforming use is permitted and only if the Board finds that the proposed use is not more injurious to adjacent properties and the public interest, health, safety and general welfare than the existing nonconforming use.
(2) Conditional industrial uses. The Board shall have the power to permit in any I-Industrial District any of the industries or uses listed in Section 1159.02. In doing so, the Board may require the installation, operation and maintenance in connection with the proposed use of such devices or such methods of operation as may, in the opinion of the Board, be reasonably required to prevent or reduce fumes, gas, dust, smoke, odor, water carried waste, noise, vibration or similar objectionable features, and may impose such conditions regarding the extent of open spaces between such industries and uses and surrounding properties as will tend to prevent or reduce the harm which might otherwise result from the proposed use to surrounding properties and neighborhoods.
(3) Temporary structures and uses. The Board may authorize the temporary use of a structure or premise in any district for a purpose or use that does not conform to the regulations prescribed elsewhere in this Zoning Code for the district in which it is located, provided that such use is of a temporary nature and does not involve the erection of a substantial structure. A zoning clearance permit for such use shall be granted in the form of a temporary and revocable permit, for not more than a six month period, subject to such conditions as will safeguard the public health, safety, convenience and general welfare.
(c) Interpretation of Zoning Map. Where the street or lot layout actually on the ground, or as recorded, differs from the street and lot lines as shown on the Zoning Maps, the Board, after notice to the owners of the property and after public hearing, shall interpret the Map in such a way as to carry out the intent and purpose of this Zoning Code. In case of any question as to the location of any boundary line between zoning districts, a request for interpretation of the Zoning Maps may be made to the Board and a determination shall be made by the Board.
(d) Interpretation of Zoning Text. If there is uncertainty as to the meaning and intent of a textual provision of this Zoning Code, the Secretary of the Board, the Zoning Inspector or the Chairman of the Planning Commission may request the Board to interpret the same, and the Board shall make a determination within thirty days, provided that the Law Director shall be consulted by the Board concerning the meaning and intent of any and all textual provisions of this Zoning Code, prior to any such determination by the Board in compliance with the provisions of this subsection.
(e) Administrative Review. The Board shall have the power to hear and decide appeals, filed as hereinbefore provided, where it is alleged by the appellant that there is error in any order, requirement, decision, determination, grant or refusal made by the Zoning Inspector or other administrative official in the enforcement and interpretation of the provisions of this Zoning Code.
(f) Variances; General Standards for Granting. The Board shall have the power, in specific cases, to vary the application of any provision of this Zoning Code in terms of the following standards so that public health, safety, morals and general welfare may be safeguarded and substantial justice done.
(1) Literal applications. Where the literal application of the provisions of this Zoning Code would result in practical difficulties or unnecessary hardships. Such hardships must be found peculiar, as applicable, to the property in question, making it distinct from the general hardships of the district; or
(2) Exceptional circumstances. Where other exceptional circumstances or conditions, only applicable to the property involved or to the intended use or development of the property, do not apply to other property within the same district. The fact that the owner of one parcel might apply prior to the owner of other parcels in the same area would not give him a right to a variance and thus grant a special privilege to an individual when such variance would be necessarily denied to others. What must be shown, on the other hand, is that there are exceptional conditions justifying a variance on one lot and that a variance would be justified on any lot where the same set of circumstances exists; and
(3) Not detrimental to the public welfare. Where granting of a variance will not be detrimental to the public welfare or injurious to the property or improvements in the neighborhood in which the property is located. The existence of an unnecessary hardship or other exceptional circumstance is not ipso facto evidence for granting of a variance, for such hardships must be balanced against the present conditions and the extent to which such a variance would interfere with the proper future development and rights of adjacent property; and
(4) Not contrary to the general purpose, etc. The granting of a variance will not be contrary to the general purpose, intent and objectives of this Zoning Code or other adopted plans. A variance merely permits that which is contemplated in this Zoning Code under certain conditions. On the other hand, that which was not contemplated, but is deemed desirable in this Zoning Code, should be effected by amendments and not by variances. No considerations should be given to hardships that will result from financial considerations or from deed restrictions.
(g) Limitations on Variations from Area Regulations. A lot of record, held in single and separate ownership on the effective date of this Zoning Code (Ordinance 72-13, passed July 11, 1972), may be used as a site for a single-family dwelling as provided and regulated in Chapter 1191. However, the Board may permit variations of not more than a ten percent decrease of the required lot area for other types of dwellings for a given lot that is of such restricted area that it cannot be appropriately improved without such modification, provided the owner owns no adjoining vacant lot, and subject to the provisions of Section 1199.02. In addition, the Board may vary the minimum floor area requirements of a dwelling by not more than ten percent if, by reason of greater lot frontage or area or side yard widths than specified in this Zoning Code for the district in which such dwelling is to be located, or by exceptionally skillful arrangement of site design, the result of such variation will be in harmony with the character of the neighborhood.
(h) Limitations on Variations from Yard Regulations. The Board may permit in the Single-Family Residential Districts only, as may be necessary to permit the appropriate development of a lot of record or because of peculiar shape or for topographical reasons, variations in which the required yards are not decreased more than ten percent, provided the Board determines that light and ventilation will be adequate and privacy not impaired and provided the required lot area has not been decreased. In addition, the Board may permit in a residential district a modification of the required side yard so as to allow a one-story garage to be attached to a one-family dwelling constructed before the effective date of this Zoning Code (Ordinance 72-13, passed July 11, 1972), to project into a required side yard, but the resulting side yard shall be not less than three feet.
(i) Limitations on Variations to Height Regulations. The Board may permit an increase in the height of a proposed or existing building or part thereof to the same height as an adjacent building, not across any public street from the proposed or existing building under consideration, provided that the adjacent building is higher than that permitted in the height regulations, and provided further that such increased height is essential to the completion of the building as originally planned.
(j) Limitations on Variations to Nonconforming Buildings and Uses. The Board shall have no power to authorize, as a variance, the establishment of a nonconforming building or use, or changes in nonconforming uses, where none previously existed, provided, however, that the Board may authorize the substitution of nonconforming uses as provided for and regulated in subsection (b)(1) hereof.
(k) Limitations on Variations from Use Regulations. The Board shall have no power to authorize, as a variance, the establishment of any use in any district other than as provided for and as regulated in this Zoning Code, provided, however, that the Board, with the confirmation of Council, may permit duplex dwellings in Single-Family Residence Districts on large, irregularly shaped corner lots only, on which the duplex-type of dwelling will, in the opinion of the Board, constitute an appropriate development of the lot and a benefit to surrounding property owners or tenants thereof. Such permission shall not be granted until after a public hearing has been held by Council, notice of which hearing shall be published at least thirty days in advance thereof and mailed to adjoining property owners.
(l) Additional Powers of the Board. The Board shall have the following additional powers:
(1) Additional uses. The determination of additional uses, as regulated in Section 1127.02 and other applicable provisions of this Zoning Code.
(2) Additional prohibited uses. The determination of additional prohibited uses, as regulated in Section 1127.03 and other applicable provisions of this Zoning Code.
(3) Requirement for landscape, traffic and other features. Upon making various determinations, the Board shall endeavor to assure safety and convenience of traffic movements within the area in question in relation to its access streets and between the area and contiguous neighborhoods and may require the provision of landscaping, walls, fences or screening, and their maintenance, to further the purpose of this Zoning Code.
(4) Requirement of bond. In authorizing a variance, with attached conditions, the Board shall require such evidence and guarantee or bond as it may deem to be necessary to enforce compliance with the conditions attached.
(Ord. 72-13. Passed 7-11-72.)