§ 16-26.003. Conditions of granting a variance.

(1)

Findings Required: Except as permitted by the provisions of subsection (2) below, variances may be granted by the board only upon making all of the following findings:

(a)

There are extraordinary and exceptional conditions pertaining to the particular piece of property in question because of its size, shape or topography;

(b)

The application of the Zoning Ordinance of the City of Atlanta to this particular piece of property would create an unnecessary hardship;

(c)

Such conditions are peculiar to the particular piece of property involved; and

(d)

Relief, if granted, would not cause substantial detriment to the public good or impair the purposes and intent of the Zoning Ordinance of the City of Atlanta.

(2)

Exceptions for Preservation of Mature Trees: Variances to reduce required setbacks may be granted for the sole purpose of preserving mature trees upon making the following findings:

(a)

That the variance is necessary in order to preserve a mature tree (or trees) with a caliper diameter of eight (8) inches or more which would be lost if the setback requirements were strictly applied. Such a variance may only be granted if the city arborist certifies to the board of zoning adjustment in writing that such tree(s) will be lost either by necessary removal for construction or as a consequence of adjacent construction having an adverse impact on the survivability of the tree by virtue of damage to the root system of the tree(s) or similar dysfunction.

(b)

Any variance granted under the provisions of this section shall include a condition that should the subject tree(s) die as a consequence, direct or indirect, of construction despite the granting of the variance, they shall be replaced, at the property owner's or applicant's expense, in accordance with a tree replacement plan prepared by the city arborist. The property owner or applicant shall be required to notify the city arborist of the death of the tree(s) within 30 days.

(c)

Variances granted under the provisions of this section may be granted by the board only upon its finding that relief, if granted, would not cause substantial detriment to the public good or impair the purposes and intent of the Zoning Ordinance of the City of Atlanta.

(d)

Variances granted under these provisions are specifically exempt from the provisions of subsection (1)(a)—(c).

(3)

Prohibition Against Granting Use Variances; Exceptions: No variance may be granted for a use of land or building or structure that is prohibited by the Zoning Ordinance of the City of Atlanta. The board shall have no power to grant a use which is not otherwise permitted within the district regulations; except, however, the board of zoning adjustment may waive or modify the provisions of sections 16-11.006(1), 16-12.006(1), 16-13.006(1), 16-14.006(1), 16-16.006(1), and 16-17.006(1), "Transitional Uses," so as to permit drive-in facilities, service stations, mortuaries or funeral homes, or sales lot for automobiles to be located adjacent to residential districts. Such approval shall be granted in the form of a special exception in the manner provided by section 16-25.001(c), 16-25.002, and 16-25.005 of this part.

(4)

Limitations Against Granting Variances to the Sign Regulations: See section 16-28A.016.

(5)

Tree Preservation and Replacement: Any proposed variance shall be granted only upon a finding by the board of zoning adjustment that tree preservation and replacement plans are in accordance with the requirements of the City of Atlanta Tree Ordinance.

(Code 1977, § 16-26.003; Ord. No. 1999-79, § 4, 11-9-99)