The board of zoning adjustment shall have the power to hear, grant or deny variances from the terms of this part as will not be contrary to the public interest when, due to special conditions, a literal enforcement of its provisions in a particular case will result in unnecessary hardship, provided that the spirit of the part shall be observed, public welfare and safety be secured, and substantial justice done.

(Code 1977, § 16-26.001)

(1)

Applications for variances shall be filed with the secretary of the board, and with supporting material as required by rules of the board and this part. The secretary shall establish an agenda for public hearing, cause due notice of the time and place thereof to be published, and give notice to the property owner and to surrounding property owners. No application for variance shall be accepted except from the owner or designated agent of the property involved.

(2)

Action by secretary: The secretary of the board of zoning adjustment, or her designee, shall review the facts of each application and shall submit findings of fact and recommendations to the board of zoning adjustment at the time each application is heard.

(3)

Notice of hearings: The following forms of notice are all required:

(a)

Published notice. At least 30 days prior to the hearing, notice shall be published within a newspaper of general circulation within the territorial boundaries of the city. The notice shall state the time, place, and purpose of the hearing. The notice shall include the location of the property and the proposed variance on the property.

(b)

Posting the property. In addition to the published notice above, the director, office of zoning and development, or the application, as directed by the director, shall cause the property involved in the proposed variance to be posted at least 15 days prior to the hearing. Such posting shall be in a conspicuous place on the property by a sign or signs (as provided below) not less than six square feet in area, bearing information as to the time, date and place of the hearing and nature of the variance.

One such sign shall be placed adjacent to each street the property abuts, as described in the application for a variance, for each 600 feet for which the property abuts such street, provided that not less than one sign shall be erected, that where there are intersections with another street or streets at least one sign shall be placed between such intersections, and that if there is a remainder from multiples of 600 feet, an additional sign shall be erected.

Notwithstanding the above requirements, if the property under consideration does not abut a street and is not a part or parts of property abutting a street, no posting is required. If said property is part or parts of properties abutting a street, posting shall be required above, with the notice indicating the relation of the parts subject to the proposed variance to the parts abutting streets.

(c)

Notice by regular mail. The director, office of zoning and development, shall also cause notice of the time, date and place of the hearing and the nature of the proposed variance to be given by regular mail, with mailing at least 30 days prior to the hearing. Such mail shall be addressed to the owner of the property that is the subject of the proposed variance, and the property owners (as ownership and address appears on the tax records of Fulton/DeKalb County) of all property within 300 feet of the property involved in the proposed variance.

(4)

Hearings. Each application shall be heard by the board of zoning adjustment. At the hearing, the applicant, collectively with anyone else speaking in support of the application, shall have no fewer than ten minutes for the presentation of data, evidence, and opinion. Collectively, those speaking in opposition to the application shall also have no fewer than ten minutes for the presentation of data, evidence, and opinion, and such time provided shall be equal to that of the collective duration of time provided to the applicant and those speaking in support of the same application.

(Code 1977, § 16-26.002; Ord. No. 2023-21(23-O-1201), § 13, 6-29-23)

(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.

That the variance is necessary in order to preserve a mature tree (or trees) with a caliper 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.

(2)

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.

(3)

Limitations against granting variances to the sign regulations: See section 16-28A.016.

(4)

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; Ord. No. 2025-25 (24-O-1690), § 1, 7-7-25)

The board may impose such conditions relating to the variance application as it may deem necessary in the particular case to protect the public interest.

(Code 1977, § 16-26.004)

When granted, a variance, together with any conditions or safeguards attached, shall apply to the land or use or which it was issued, and not to a particular person.

(Code 1977, § 16-26.005)

In addition to the special exceptions enumerated in chapter 25 which the board of zoning adjustment is empowered to consider, the board may also waive or reduce the parking and loading requirements in any of the districts when the character or use of the building is such as to make unnecessary the full provisions of parking or loading facilities, or where such regulations would impose an unreasonable hardship upon the use of the lot.

(Code 1977, § 16-26.006)

Any person aggrieved by a decision of the board, or any officer, department, board or office affected by such decision, may seek review of such decision in the manner prescribed in O.C.G.A. § 36-66-5.1. The director of the office of zoning development shall have the authority prescribed in O.C.G.A. § 36-66-5.1(c)(1) and the City of Atlanta Department of Law shall have the authority prescribed in O.C.G.A. § 36-66-5.1(c)(2). Other than one with a legal or equitable interest in property that is the subject of the decision, "any person aggrieved" shall mean one who demonstrates before the board that his property will suffer special damage as a result of the decision complained of rather than merely some damage which is common to all property owners similarly situated.

(Code 1977, § 16-26.007; Ord. No. 2017-51, § 1, 9-5-17; Ord. No. 2023-21(23-O-1201), § 14, 6-29-23)

The department of city planning, office of zoning and development is authorized to approve administrative variances on single-family or two-family residential lots to reduce side yard setbacks by up to 50 percent of their width if recommended by the city.

Arborist to allow for the preservation of mature trees as defined by chapter 158 of this code.

No administrative variance may be granted without a finding by the city arborist that the variance is necessary to preserve trees with a diameter at breast height of six inches or more which would be lost if the setback requirements were strictly applied. The city arborist shall certify to the department of city planning, office of zoning and development 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.

Prohibition against administrative variances; no administrative variance may be granted for any property within a historic or cultural conservation district as described in part 16, chapter 20 of this Code.

(Ord. No. 2025-25 (24-O-1690), § 2, 7-7-25)