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(a) Applicability.
The procedures of this subsection apply to all applications for a variance from the terms of this Zoning Code as they affect a specific lot, but not including applications for (a) waivers from the subdivision standards, which are not subject to Zoning Board review and which are addressed in § 14-304(7)(h) (Waiver of Subdivision Standards), and (b) variations from the historic preservation regulations, which are not subject to Zoning Board review and which are addressed in Chapter 14-1000 (Historic Preservation).
(b) Refusal by L&I.
Once a zoning permit application has been filed with L&I, and L&I confirms that the application does not comply with one or more provisions of the Zoning Code and provides a refusal to the applicant, the applicant has 30 days to file an appeal to the Zoning Board for variance approval.
(c) Review by the Commission.
The Commission shall review each application for a variance and shall make a recommendation to the Zoning Board as to whether the application meets the general criteria for a variance listed in § 14-303(8)(e) (Criteria for Approval) as well as any specific criteria in §§ 14-303(8)(f) (Additional Criteria for Floodplain Variances) through 14-303(8)(h) (Additional Criteria for Height Variances Near the Airport) applicable to the type of use or facility for which the variance request is made.
(d) Hearing Before the Zoning Board.
Following the filing with the Zoning Board of an application for a variance, the applicant shall provide public notice in accordance with § 14-303(13) (Public Notice), and the Zoning Board shall hold a public hearing pursuant to § 14-303(14) (Public Hearings). The applicant shall also notify any Registered Community Organizations of the application for a variance and meet with such Registered Community Organization(s) in accordance with § 14-303(12) (Neighborhood Notice and Meetings).
(e) Criteria for Approval.
The Zoning Board shall grant a variance only if it determines that the applicant has demonstrated that the criteria of this § 14-303(8)(e) (Criteria for Approval) have been met and that any applicable criteria in §§ 14-303(8)(f) (Additional Criteria for Floodplain Variances) through 14-303(8)(h) (Additional Criteria for Height Variances Near the Airport) have been met. Otherwise, the Zoning Board shall deny the variance.
The Zoning Board may grant a lesser variance than requested, and may attach such reasonable conditions and safeguards as it may deem necessary to implement this Zoning Code, including without limitation a limitation on the size or duration of the variance, consistent with § 14-303(9) (Conditions on Approvals). The Zoning Board shall, in writing, set forth each required finding for each variance that is granted, set forth each finding that is not satisfied for each variance that is denied, and to the extent that a specific finding is not relevant to the decision, shall so state. The Zoning Board shall file with each decision approving a variance any Project Information Form prepared by the applicant pursuant to Section 18-503, but need not attach the Form to the decision; filing of the Form shall not constitute incorporation of its contents into the decision and those contents shall not be binding. Each finding shall be supported by substantial evidence. If the Zoning Board chooses to view the subject property as part of the hearing, the Zoning Board must provide due process. Reports of other City agencies made as a result of inquiry by the Zoning Board shall not be considered hearsay. Upon request of any party, the Zoning Board may compel the attendance of the City agency. The Zoning Board shall grant a variance only if it finds each of the following criteria are satisfied:
(.a) The denial of the variance would result in an unnecessary hardship. The applicant shall demonstrate that the unnecessary hardship was not created by the applicant and that the criteria set forth in § 14-303(8)(e)(.2) (Use Variances) below, in the case of use variances, or the criteria set forth in § 14-303(8)(e)(.3) (Dimensional Variances) below, in the case of dimensional variances, have been satisfied;
(.b) The variance, whether use or dimensional, if authorized will represent the minimum variance that will afford relief and will represent the least modification possible of the use or dimensional regulation in issue; 194
(.c) The grant of the variance will be in harmony with the purpose and spirit of this Zoning Code;
(.d) The grant of the variance will not substantially increase congestion in the public streets, increase the danger of fire, or otherwise endanger the public health, safety, or general welfare;
(.e) The variance will not substantially or permanently injure the appropriate use of adjacent conforming property or impair an adequate supply of light and air to adjacent conforming property;
(.f) The grant of the variance will not adversely affect transportation or unduly burden water, sewer, school, park, or other public facilities;
(.g) The grant of the variance will not adversely and substantially affect the implementation of any adopted plan for the area where the property is located; and
(.h) The grant of the variance will not create any significant environmental damage, pollution, erosion, or siltation, and will not significantly increase the danger of flooding either during or after construction, and the applicant will take measures to minimize environmental damage during any construction.
(.2) Use Variances.
To find an unnecessary hardship in the case of a use variance, the Zoning Board must make all of the following findings:
(.a) That there are unique physical circumstances or conditions (such as irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions) peculiar to the property, and that the unnecessary hardship is due to such conditions and not to circumstances or conditions generally created by the provisions of this Zoning Code in the area or zoning district where the property is located;
(.b) That because of those physical circumstances or conditions, there is no possibility that the property can be used in strict conformity with the provisions of this Zoning Code and that the authorization of a variance is therefore necessary to enable the viable economic use of the property;
(.c) That the use variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare; and
(.d) That the hardship cannot be cured by the grant of a dimensional variance.
(.3) Dimensional Variances.
To find an unnecessary hardship in the case of a dimensional variance, the Zoning Board may consider the economic detriment to the applicant if the variance is denied, the financial burden created by any work necessary to bring the building into strict compliance with the zoning requirements and the characteristics of the surrounding neighborhood.
(f) Additional Criteria for Floodplain Variances.
(.1) Any requested variance for property located within the Floodway will not result in any increase in flood levels during the Regulatory Flood.
(.2) Any requested variance for property located within the Special Flood Hazard Area will not significantly increase the danger of flooding; and will not increase the likelihood of the loss of property.
(.3) Any variance in either the Floodway or Special Flood Hazard Area involves the least modification of floodplain controls necessary to allow the proposed development to proceed.
(.4) For any property located in the Floodway, no variance shall be granted that would allow construction or substantial improvement of any structure:
(.a) used for the production or storage of: acetone; ammonia; benzene; calcium carbide; carbon disulfide; celluloid; chlorine; hydrochloric acid; hydrocyanic acid; magnesium; nitric acid and oxides of nitrogen; petroleum products (gasoline, fuel oil, and the like); phosphorus; potassium; sodium; sulphur and sulphur products; pesticides (including insecticides, fungicides, and rodenticides);
(.b) used for any activity requiring the maintenance of a supply of any of the materials listed in § 14-303(8)(f)(.4)(.a) in excess of 550 gallons or an equivalent volume; or
(.c) used for any purpose involving the production, storage, or use of any amount of radioactive substance.
(.5) Within the Special Flood Hazard Area, no variance shall be granted that would allow construction or substantial improvement of any of the following unless it is elevated or floodproofed to remain completely dry to one and one-half ft. above the Regulatory Flood Elevation:
(.a) any structure used for the production or storage of: acetone; ammonia; benzene; calcium carbide; carbon disulfide; celluloid; chlorine; hydrochloric acid; hydrocyanic acid; magnesium; nitric acid and oxides of nitrogen; petroleum products (gasoline, fuel oil, and the like); phosphorus; potassium; sodium; sulphur and sulphur products; pesticides (including insecticides, fungicides, and rodenticides);
(.b) any structure used for any activity requiring the maintenance of a supply of any of the materials listed in § 14-303(8)(f)(.5)(.a) in excess of 550 gallons or an equivalent volume; or
(.c) any structure used for any purpose involving the production, storage, or use of any amount of radioactive substance.
(g) Additional Criteria for Wireless Service Towers.
In granting a variance relating to the construction of wireless service towers, the Zoning Board shall consider all of the following criteria in addition to those in § 14-303(8)(e) (Criteria for Approval).
(.1) Evidence of the lack of space on suitable existing towers, buildings, or other structures to co- locate the proposed antenna, cells, microcells and the lack of space on existing tower sites to construct a tower for the proposed antenna within the service area;
(.2) Whether the wireless service provider will be unable to provide wireless services without the tower site;
(.3) Whether the application represents a request for multiple use of a tower or site, or use on a site contiguous to an existing tower site;
(.4) Whether the application contains a report that other potential users of the site and tower have been contacted, and they have no current plans, to the best of their ability to determine, that could be fulfilled by joint use;
(.5) Whether the application shows how the tower or site will be designated or laid out to accommodate future multiple users. Specific design features evaluated shall include but not be limited to height, wind loading, and coaxial cable capacity; and
(.6) Whether the proposed tower is to be located in an area where it would be unobtrusive and would not substantially detract from aesthetic or neighborhood character or property values, due either to location, shape of the tower (such as an imitation pine tree tower) or to the nature of surrounding uses (such as industrial use), or to lack of visibility caused by natural growth, landscape area, or other factors.
(.7) Anything in this § 14-303(8) (Zoning Variances) to the contrary notwithstanding, for purposes of wireless service towers only, hardship sufficient for the granting of a variance shall include the effect upon the applicant's ability to provide wireless service.
(h) Additional Criteria for Height Variances Near the Airport.
Where all or part of the property is located in the /AHC, Airport Hazard Control Overlay district, the Zoning Board shall only approve a variance from those height controls in the /AHC overlay district pursuant to the procedures and standards of § 14-511(5) (Variances).
Where any earth disturbance will occur on a slope of twenty-five percent (25%) or greater, the Zoning Board shall approve a variance only if the applicant demonstrates that the application meets the following criteria, as certified by a Pennsylvania Licensed Professional Engineer, in addition to those in § 14-303(8)(e) (Criteria for Approval). Water Department prerequisite approvals shall not signify the evaluation or acceptance of the listed criteria herein.
(.1) Any requested variance for the property will not result in any of the following:
(.a) An increase in stormwater runoff;
(.b) The shifting of earth to adjacent existing buildings and structures down slope or immediately upslope; or
(.c) An increase in the likelihood of the loss of property.
(.2) The applicant submits an earth moving plan that meets the standards described in § 14-704(2)(c) (Earth Moving Plans) and that shows the extent of the proposed earth disturbance area.
Where all or part of the property is located in the /HHC, Heliport Hazard Control Overlay district, the Zoning Board shall only approve a variance from those height controls in the /HHC overlay district pursuant to the procedures and standards of § 14-531(5) (Variances).
Where all or part of the property is located in the /MIN, Mixed Income Neighborhoods Overlay District, the Zoning Board shall not approve a variance from use regulations listed in § 14-533(3)(a) and § 14-533(3)(b) unless failure to do so would constitute a taking under Fifth Amendment of the United States Constitution.
Notes
| 193 | Amended, Bill No. 170335-A (approved June 6, 2017), effective December 6, 2017. |
| 194 | Amended, Bill No. 130725 (approved December 4, 2013). |
| 195 | Amended, Bill No. 210075 (approved March 29, 2021). |
| 196 | Added, Bill No. 210482-A (approved July 1, 2021). Enrolled bill numbered this as subsection (i); renumbered by Code editor. |
| 197 | Added, Bill No. 210633-A (approved January 18, 2022), effective July 18, 2022. Enrolled bill numbered this as subsection (a); renumbered by Code editor. |