§14-1802. Criteria for Granting Variances. [378]


(1) The Zoning Board of Adjustment shall consider the following criteria in granting a variance under § 14-1801(1)(c):

(a) that because of the particular physical surrounding, shape, or topographical conditions of the specific structure or land involved, a literal enforcement of the provisions of this Title would result in unnecessary hardship;

(b) that the conditions which the appeal for a variance is based are unique to the property for which the variance is sought;

(c) that the variance will not substantially or permanently injure the appropriate use of adjacent conforming property;

(d) that the special conditions or circumstances forming the basis for the variance did not result from the actions of the applicant;

(e) that the grant of the variance will not substantially increase congestion in the public streets;

(f) that the grant of the variance will not increase the danger of fire, or otherwise endanger the public safety;

(g) that the grant of the variance will not overcrowd the land or create an undue concentration of population;

(h) that the grant of the variance will not impair an adequate supply of light and air to adjacent property;

(i) that the grant of the variance will not adversely affect transportation or unduly burden water, sewer, school, park or other public facilities;

(j) that the grant of the variance will not adversely affect the public health, safety or general welfare;

(k) that the grant of the variance will be in harmony with the spirit and purpose of this Title, and

(l) that the grant of the variance will not adversely affect in a substantial manner any area redevelopment plan approved by City Council or the Comprehensive Plan for the City approved by the City Planning Commission.

(2) In addition to the criteria set forth in § 14-1802(1), the Zoning Board of Adjustment shall also consider the following criteria when granting a variance under § 14-1801(1)(c):

(a) that the grant of the variance will not create any significant environmental damage;

(b) that the grant of the variance will not significantly increase the danger of flooding;

(c) that the grant of the variance will not cause erosion, siltation or pollution that are significant;

(d) that the applicant will take reasonable means to minimize environmental damage during construction;

(e) that the applicant in developing the site will use reasonable countermeasures in order that the completed project will not create significant environmental damage;[379]

(f) that because of the particular physical surroundings, shape, or topographical conditions of the specific structure or land involved, a literal enforcement of the provisions of this Title would result in unnecessary hardship;[380]

(g) that the conditions upon which the appeal for a variance is based are unique to the property for which the variance is sought;[381]

(h) that the variance will not substantially or permanently injure the appropriate use of adjacent conforming property.[382]

(3) Where the property in question is situated within areas subject to flooding as provided in Section 14-1606, relating to Flood Plain Controls, the Zoning Board of Adjustment shall consider the following criteria when granting a variance under Section 14-1801(1)(c):[383]

(a) Within the Floodway. No variances may be issued which would result in any increase in flood levels during the Regulatory Flood.

(b) Within the Floodway Fringe:

(.1) that the grant of the variance will not significantly increase the danger of flooding.

(.2) that the grant of the variance will not endanger the loss of property, or the public health, safety or welfare.

(4) Where the property in question is situated within an area subject to the "Benjamin Franklin Parkway Controls," as provided in Section 14-1611, the Zoning Board of Adjustment shall consider the following criteria when granting a variance under Section 14-1801(1)(c):

(a) that the grant of the variance will not substantially alter historic views of the City Hall Tower or the Center City skyline; and,

(b) that no variance shall be granted to allow additional height in the case of an application which also requests a variance to exceed the permitted gross floor area.[384]

(5) Where the property in question is situated within an area subject to the "Center City Height Controls" as provided in Section 14-1609, the Zoning Board of Adjustment shall consider the following criteria when granting a variance under Section 14-1801(1)(c):

(a) that the grant of the variance will not substantially alter historic views of the City Hall Tower or the Center City Skyline; and,

(b) that no variance shall be granted to allow additional height in the case of an application which also requests a variance to exceed the permitted gross floor area.[385]

(6) In the granting a variance relating to the construction of wireless service towers, the Zoning Board of Adjustment shall consider all of the following criteria in addition to the other applicable criteria set forth in this § 14-1802:[386]

(a) 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;

(b) Whether the wireless service provided will be unable to provide wireless services without the tower site;

(c) 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;

(d) 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;

(e) 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

(f) 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, landscaping or other factors.

(g) Anything in § 14-1802 to the contrary not withstanding, for purposes of wireless service towers only, hardship sufficient for the granting of a variance[387] shall include the effect upon the applicant’s ability to provide wireless service.

(7) The provisions of paragraphs (2), (3), (4), (5), and (6) shall be in addition to the criteria set forth in paragraph (1).[388]

(8) The applicant shall have the duty of presenting evidence relating to the criteria set forth herein.[389]