1234.12  SPECIFIC POWERS.
   The Board of Zoning Appeals shall have the following powers, including the power to order the issuance of certificates of occupancy to implement its decisions herein duly authorized:
   (a)   Interpretation of the Zoning Code.
      (1)   To interpret the location of district boundaries on the Zoning Map in accordance with Section 1236.04;
      (2)   To decide upon modification of height limits in accordance with Section 1288.02(c);
      (3)   To decide upon modification of open space and other provisions for nonconforming lots of record in accordance with Section 1288.02(h);
      (4)   To decide on accessory uses in accordance with Section 1288.02(g);
      (5)   To interpret off-street parking requirements in accordance with Section 1282.01(a), (d), (e) and (f);
      (6)   To decide upon conformity of alterations, extensions or enlargement of nonconforming uses, in accordance with Chapter 1286;
      (7)   To decide whether or not the type of nonconformity recorded by the Building Official actually exists, in accordance with Chapter 1286; and
      (8)   To hear and decide appeals where it is alleged by the appellant that there is error, in regard to the interpretation of a provision of this Zoning Code, in any order, requirement, permit, decision or refusal made by the Building Official in carrying out or in enforcing any provision of this Zoning Code. This power of the Board shall be construed to clarify any uncertainty that exists in the meaning of the provisions of this Zoning Code. Deciding against the action of the Building Official is conditional upon a finding that the Building Official is incorrect in his or her action under this Zoning Code, has overstepped the authority granted to him or her, or has acted in a manner that is in conflict with the letter and spirit of this Code.
   (b)   Special Exceptions. To authorize, in special situations specifically described in this Zoning Code, exceptions to the general regulations, to the extent that such special exceptions are specifically authorized, and, in this connection:
      (1)   To hear and decide applications for special exceptions to the use regulations in accordance with Section 1288.01(a) and the relevant provisions of Chapters 1238 through 1272;
      (2)   To hear and decide applications for special exceptions to the area, height, bulk, placement and use regulations for planned projects, in accordance with Chapter 1274; and
      (3)   To permit the erection and use of a building, or an addition to an existing building, of a public service corporation, or for public utility purposes, in any permitted district, to a greater height or of larger area than the district requirements established in this Zoning Code, and permit the location in any use district of a public utility building, structure or use if the Board finds such use, height, area, building or structure reasonably necessary for the public convenience and service.
      Uses requiring a special exception permit from the Board are permissible only when, in the finding of the Board, adequate conditions exist or can be imposed that will make such uses compatible with the purposes of this Zoning Code and the intent and principal uses of the district. Otherwise, such uses are prohibited uses. In issuing a special exception permit, the Board shall take into consideration the public health, safety and welfare and shall prescribe appropriate conditions and safeguards to ensure that:
         A.   All proposed structures, equipment or materials are readily accessible for fire and police protection.
         B.   The proposed use will not cause traffic congestion or movement out of proportion to that normally prevailing in the particular district.
         C.   The proposed use will provide sufficient space for the off-street parking of all vehicles attracted by its presence and conforms to the regulations set forth in this Zoning Code for such use and its particular district.
         D.   No proposed building is out of harmony with the predominant type of building in the particular district, by reason of its size, character, location or intended use.
         E.   All supplementary regulations required by this Zoning Code are satisfied.
         F.   Conditions indicated in each respective zoning district are satisfied for the particular use.
   (c)   Variances. To authorize, upon an appeal, a variance from the strict application of the provisions of this Zoning Code, where, by reason of exceptional narrowness, shallowness or shape of a specific piece of property at the time of the enactment of this Zoning Code (Ordinance 2, passed June 22, 1961), or by reason of exceptional topographic conditions or other extraordinary and exceptional situations or conditions of such piece of property, the strict application of a provision of this Zoning Code would result in peculiar and exceptional practical difficulties to, or exceptional or undue hardships upon, the owner of such property.  The authorization of a variance for minimum lot size based on area in square feet and width in feet is not required in the case of a lot of record where the Board has determined the property to be a buildable zoning lot.  Variance of the type of use from that permitted by this Zoning Code is not authorized.
(Ord. 2005-26.  Passed 7-5-05.)
      A variance can only be allowed by the Board in cases involving practical difficulties or unncessary hardships, when the evidence in the official record, on appeal from a decision or order of the Building Official, supports, in the opinion of the Board, all of the following affirmative findings:
      (1)   The variance is in harmony with and serves the general intent and purposes of this Zoning Code.
      (2)   Allowing the variance will result in substantial justice being done, considering both the public benefits intended to be secured by this Zoning Code and the individual hardships that will be suffered by a failure of the Board to grant the variance.
      (3)   The variance, if allowed, will not interfere with or injure the rights of others in the use district whose property would be affected by allowance of the variance.
      (4)   The alleged hardship or practical difficulty is unique and singular, as regards the property of the party requesting the variance, and is not those suffered in common with other property similarly located.
      (5)   The alleged hardship or practical difficulty that will result from failure to grant the variance includes more than personal inconvenience and financial hardship.
         When a requested variance is allowed by the Board, there shall be entered in the minutes of the Board, as a part of the record in each case of a requested variance, the affirmative findings enumerated herein in support of the variance.
         When a requested variance is denied by the Board, there shall be entered in the minutes of the Board, as a part of the record in each case of a requested variance, the matters as to which the Board is unable, by virtue of the whole record before it, to make the requisite affirmative findings enumerated herein.
         When granting a variance under this Zoning Code, the Board may impose such conditions and limitations as are necessary to limit the use of the premises so as to make whatever parking space is provided adequate to the extent of preventing congestion in streets due to parking of passenger vehicles of occupants, patrons or employees of enterprises in buildings which such off-street parking facility is intended to serve.
(Ord. 2.  Passed 6-22-61.)
   (d)   Regulated Uses.
      (1)   In the development and execution of this Zoning Code, it is recognized that there are some uses which, because of their very nature, are recognized as having serious objectionable operational characteristics, particularly when several of them are concentrated under certain circumstances thereby having a deleterious effect upon the adjacent areas. Special regulation of these uses is necessary to ensure that these adverse effects will not contribute to the blighting or downgrading of the surrounding neighborhood. These special regulations are itemized in this subsection.
The primary control or regulation is for the purpose of preventing a concentration of these uses in any one area.
   The establishment of the following kinds of uses is prohibited if the establishment of such use will constitute the second such use within a 500-foot radius (i.e. not more than one such use within 500 feet of another such use):
         A.   Adult supply store;
         B.   Adult motion picture theater;
         C.   Adult mini motion picture theater;
         D.   Adult outdoor motion picture theater;
         E.   (Intentionally left blank);
         F.   Group A cabaret;
         G.   (Intentionally left blank);
         H.   (Intentionally left blank);
         I.   Massage parlors;
         J.   Pawnshops;
         K.   (Intentionally left blank);
         L.   Boarding and rooming houses;
         M.   (Intentionally left blank);
         N.   (Intentionally left blank);
         O.   (Intentionally left blank);
         P.   Money services businesses;
         Q.   Person engaged in the occupation or business of fortune telling, palmistry or clairvoyancy.
            (Ord. 2006-23.  Passed 12-5-06; Ord. 2009-15.  Passed 11-2-09; Ord. 2011-03.  Passed 8-2-11.)
         R.   (EDITOR’S NOTE: Subparagraph (d)(1)R. was repealed by Ordinance 2016-05, passed July 5, 2016.)
      (2)   An application to establish any of the regulated uses set forth in paragraph (d)(1) hereof shall be made to the Board of Zoning Appeals which shall not approve any such request if there is already in existence one such regulated use within a 500-foot radius of the property line of the site of the proposed regulated use, except as provided in paragraph (d)(3) hereof.
(Ord. 1986-15.  Passed 11-3-86.)
      (3)   The Board may waive the location restrictions set forth in this subsection for the enumerated regulated uses, except adult uses and bars or establishments for the sale of beer, wine or intoxicating liquor for consumption on the premises, which establishments derive less than sixty percent of the total gross receipts from the sale of food or other goods and services other than beer, wine or intoxicating liquor.
(Ord. 1987-01.  Passed 1-20-87.)
      (4)   Prior to granting a waiver of the location restrictions set forth in this subsection, and not less than fifteen days before the request for a waiver is considered or a public hearing is held pursuant to paragraph (d)(6) hereof, the Board shall publish, in a newspaper of general circulation in the City, a notice that a request for a waiver to establish a regulated use has been received, and shall send by mail or personal delivery a copy of such notice to the owner of property for which the waiver is being considered, to all persons to whom any real property is assessed within 300 feet of the boundary of the premises in question and to the occupants of all structures within 300 feet of such boundary. If the name of the occupant is not known, the term "occupant" may be used in making notification. Notification need not be given to  more than one occupant of a structure, except that if a structure contains more than one dwelling or spatial area owned or leased by different individuals, partnerships, businesses or organizations, one occupant of each unit or spatial area shall receive notice. In the case of a single structure containing more than four dwelling units or other distinct spatial areas owned or leased by different individuals, partnerships, businesses or organizations, notice may be given to the manager or owner of the structure who shall be requested to post the notice at the primary entrance to the structure.
      (5)   The notice of application shall inform the recipient of the applicant's name, shall describe the nature and type of use proposed, shall indicate the local address, lot number and subdivision name of the property in question and shall provide the section of the Zoning Code under which the proposal is being processed. Such notice shall also invite written comments, statements or opinions and shall indicate the place and date upon which written comments concerning the proposed use must be received.
      (6)   Such notice of application shall further indicate that a public hearing on the proposed regulated use may be requested by a property owner or the occupant of a structure located within 300 feet of the boundary of the property being considered for the regulated use. If the applicant or the Board requests a public hearing, only notification of the public hearing need be made by the Board. Any person requesting a hearing under this section may be represented by any person, firm, organization, partnership, corporation, board or bureau.
      (7)   No person shall hereafter establish any regulated use if the proposed regulated use will be within a 500-foot radius of a Residential District or a district zoned PDD Planned Development District which has been approved pursuant to Section 1253.10 for a residential project or within a 500-foot radius of any primary or secondary or nursery school.  This prohibition shall be deemed waived upon presentation to the Board of a validated petition requesting such waiver, signed by fifty-one percent of those persons owning, residing or doing business within 500 feet of the proposed location.  No waiver shall be given or obtained to permit a regulated use to locate within a 500-foot radius of any primary, secondary or nursery school.  The Board shall adopt rules and regulations governing the procedure for securing any petition of consent which may be provided in this section.  The rules shall provide that the circulator of the petition requesting a waiver subscribe to an affidavit attesting to the fact that the petition was circulated in accordance with such rules, that the circulator personally witnessed the signatures on the petition and that the same were affixed to the petition by the person whose name appeared thereon.
(Ord. 2006-04.  Passed 2-21-06; Ord. 2009-09.  Passed 5-19-09.)
      (8)   In conjunction with the waiver process for the establishment of any regulated use, the Board may impose any condition or limitations upon the establishment, location, construction, maintenance or operation of the regulated use as may, in its judgment, be necessary for the protection of the public interest.  Any evidence and guarantee may be required as proof that the conditions stipulated in connection therewith be fulfilled.
(Ord. 2009-09.  Passed 5-19-09.)
   (e)   Invalidation of Special Land Use Permits.
      (1)   In any case where a special land use has not been established within six months after the granting of a permit therefor, and without further notice or action by the City Planning Commission or the Board, the special land use permit shall become null and void.
      (2)   A special land use permit shall be deemed to authorize only one specific special land use and shall expire if the special land use ceases for more than six consecutive months for any reason.
(Ord. 1986-15.  Passed 11-3-86.)
   (f)   Waiver of Materials Recovery Facility Fence Requirements. To grant waivers of the requirements for materials recovery facility side and rear screening fences, as provided in Section 832.15, upon a showing by the applicant that such waiver will not cause an adverse environmental impact on, or a diminution in value of, adjacent premises. Such waivers shall be granted on an annual basis only, and only after public hearing, for which at least twelve days notice is given to the applicant and all property owners of record within 300 feet of the premises in question, which notice is to be delivered personally or by mail, addressed to the respective owners at the addresses given in the last assessment roll.
(Ord. 1989-16.  Passed 9-5-89; Ord. 2001-01.  Passed 1-2-01.)