The zoning official of the county shall be employed under the supervision of the county manager or designee. The zoning official shall have the following duties:

(1)

To attend all meetings of the planning and zoning board, all meetings of the board of adjustment, and all meetings of the board of county commissioners at which matters of zoning or recommendations from the planning and zoning board are to be considered.

(2)

To serve as secretary to the planning and zoning board and to the board of adjustment and in such capacity keep, prepare and serve as custodian of the minutes and records of such boards.

(3)

To receive and process all applications for amendments to the official zoning map and all applications for variances before the board of adjustment.

(4)

To collect and account for all fees required by the board of county commissioners for the filing of applications for amendments to the official zoning map and for applications for variances before the board of adjustment.

(5)

To schedule, coordinate and publish the required notice for all public hearings specified under the provisions of article VI of this chapter.

(6)

To advise and cooperate with the county manager or designee in the enforcement, amendment and implementation of this regulation and other laws, regulations and ordinances relating to zoning and the use of land within the county.

(7)

To disseminate information to the general public on proposed amendments to the official zoning map.

(8)

To coordinate with the code enforcement division to enforce compliance with the provisions and conditions specified to this regulation and other laws, regulations and ordinances relating to zoning and the use of land within the county.

(9)

To supervise and train those employees within this division.

(10)

To take such action as deemed necessary to coordinate the implementation of the provisions of articles VI, VII and VIII of this chapter and other laws, regulations and ordinances relating to zoning and the use of land within the county.

(11)

To serve as custodian of the official zoning map and to record or direct the recording of all proposed amendments and variances to said map as specified under the provisions of this regulation.

(12)

To support in preparing and developing comprehensive and specific land use plans for consideration by the board of county commissioners and planning and zoning board/local planning agency.

(13)

To advise and recommend on amendments and revisions of articles VI, VII and VIII of this chapter and on other ordinances, laws and regulations to zoning and land use controls.

(14)

To assist the land development division director in his duty to advise and recommend to the board of county commissioners and planning and zoning board all site plan approvals required under the provisions of articles VI, VII and VIII of this chapter and other ordinances, laws and regulations relating to zoning and the land use.

(15)

To prepare the agenda and conduct, coordinate and direct all meetings of the planning and zoning board and board of adjustment.

(16)

To advise and recommend to the board of county commissioners and planning and zoning board on all applications for amendments to the official zoning map.

(17)

To assist in taking such action as deemed necessary to perform the planning function of zoning and land use regulations as required under this chapter and other applicable laws, ordinances and regulations relating to zoning and land use.

(18)

To interpret the provisions of article VI of this chapter and its application to any particular land use.

(Code 1979, § 14-20.59(A); Ord. No. 93-17, § 1, 6-22-93; Ord. No. 97-49, § 1, 12-9-97; Ord. No. 98-12, § 5, 2-26-98; Ord. No. 99-07, § 1, 1-28-99)

The board of county commissioners is authorized and empowered by resolution to fix reasonable permit and inspection fees to be charged by the board for such building permits, examinations and inspections as the board may determine are necessary in the administration of the provisions of this chapter.

(Code 1979, § 14-7)

This section of the Code applies to existing parcels and lots of record as defined in this Code. The division or subdivision of a lot or parcel of land is subject to article VII, subdivision regulations. Except where specifically provided in this section, the division or subdivision of land using flag lots is not allowable, whether directly or indirectly, under this provision. Except as specifically provided in this section, no building permits shall be issued by the county for use on a parcel or lot, unless that parcel abuts on a public street, dedicated and accepted for maintenance by the county. Building permits may be issued for parcels utilizing private roads within subdivisions, where such private roads are privately maintained and connect directly to a public street, and where said private road has been constructed to county standards and shown on a subdivision platted and recorded in the public records of the county.

For parcels, which do not abut on a public or privately maintained street, building permits may be issued for said parcels in the following circumstances:

(a)

Access by easement or license. Building permits for single-family residential structures and accessory structures, meeting applicable building and health codes, may be issued for a lot or parcel, which was created prior to January 1, 2011, when it can be shown that the lot has access to a public street through a county approved, perpetual and irrevocable right of access easement or, as to a landlocked lot of record or a lot of record which can only be physically accessed across the property of a governmental agency, a right of access by a written license authorizing access granted by the agency or its agent. Approval for a building permit shall only be allowed on lots which; (1) are consistent with the comprehensive plan and zoning code, or (2) are established as nonconforming lots of record as set forth in section 62-1188 provided the following criteria are met:

1.

That the parcel is of unique dimension or character, such that direct access by abutting on a public street is not feasible; and

2.

That the access easement is at least 20 feet wide; and

3.

That the parent parcel which contains the easement provides at least 40 feet of unencumbered building envelope width; and

4.

That the access is cleared, graded, stabilized and maintained so as to assure access by emergency vehicles; and

5.

That the access easement is for the exclusive use of the parcel for which the building permit is to be issued, and includes a public utility easement and emergency access easement; and

6.

The easement must be approved by the county and designated on county zoning maps prior to permit issuance; and

7.

Such access shall not include a street, road, right-of-way or easement dedicated to the county or "the public" by a plat or other recorded instrument.

(b)

[Flag lot defined.] A flag lot is defined as a parcel of land which has a narrow, deeded strip of land (the stem) connecting the main body of the lot, plot, or parcel to a road dedicated and accepted for maintenance by a public entity. A building permit for single-family residential structures, and accessory structures, may be issued for a flag lot only under one of the following circumstances:

1.

An existing flag lot which has been approved by the county and designated on county zoning maps prior to January 1, 2011, or

2.

Any flag lot which has been divided pursuant to article VII, subdivision regulations, or

3.

Newly divided flag lot(s) pursuant to the following conditions:

Approval for three or more lots shall be obtained from the board of county commissioners as part of the subdivision process in article VII. However, an application to subdivide any lot, parcel or tract of land under single ownership into not more than two lots, where either one or both resultant parcels are flag lots, may be approved administratively after determination of compliance with the following factors:

a.

Each flag lot shall have a minimum lot area of one acre, excluding the flag stem.

b.

The flag stem shall be a minimum of 25 feet in width.

c.

No more than two access stems may be located side by side, and additional access stems shall be a minimum of 90 feet apart on collector and arterial roads and 40 feet apart on local streets, regardless of ownership, providing the property located between the flag stems meets the minimum lot width, depth and size requirements of the county zoning requirements.

d.

The stem for each flag lot shall intersect a dedicated and accepted road at no less than a 60-degree angle with curvature beginning no less than 40 feet from the road right-of-way.

e.

Flag lots may be utilized in low-density platted subdivisions having lots of one acre or more as approved by the board of county commissioners as part of the subdivision plat approval procedure. Flag lots shall be utilized for single-family, duplex, mobile home and modular coach purposes only.

f.

Any flag lot of record prior to June 23, 1976, shall be considered a nonconforming lot of record if the flag stem is a minimum of ten feet in width; and such lot shall enjoy the same nonconforming rights as set forth in section 62-1188.

g.

Upon verification of compliance with the above regulations, staff shall issue a preliminary letter of approval, and the applicant shall have 90 days to record the approved flag lot(s) in the public records of the county. Once recorded, the applicant shall submit the recorded instrument to staff which will then issue the final letter of approval, upon verification that the lots were recorded as designed in the preliminary approval. If the applicant fails to record the lots within 90 days, the preliminary approval shall expire.

(c)

Unpaved road agreements. The board of county commissioners and a single property owner or multiple property owners whose property abuts a right-of-way which is not maintained by the county may enter into an agreement, to allow the issuance of a permit to construct an unpaved road within county right-of-way and obtain a permit for the consideration of one or more single-family residence under the following conditions:

1.

These agreements shall be limited to existing county rights-of-way of at least 50 feet in width. If a right-of-way exists of less than 50 feet in width, additional easements, dedicated or deeded to the county and accepted by the county for maintenance in accordance with the provisions of subsection 7. below, must be obtained on each side of the right-of-way by the owner for drainage and sidewalk purposes to bring the total width to 50 feet. Any requests for deviation from the 50-foot width requirement shall be made as part of the application process and will be reviewed by the county for a determination. Any acquisition costs associated with the right-of-way and easements will be borne solely by the property owner. The traveling surface of the road will be centered within the right-of-way.

2.

Only those properties within 1,320 feet of a county-maintained roadway are eligible. However, an administrative approval may be considered by staff to allow a distance up to 20 percent or 264 feet beyond the 1,320 feet, if the extension would not create a detrimental impact to the public interest. Staff shall consider topography, drainage characteristics and impact to adjacent land in granting this administrative approval.

3.

When an unpaved road is initiated, it may only extend 1,320 feet from an existing county maintained roadway which has been established as the beginning point for the project. If the existing maintained roadway is unpaved, that existing maintained roadway must have been constructed and maintained without the benefit of unpaved road agreements. In addition, the roadway built under an unpaved road agreement will not be permitted to extend beyond the original 1,320 feet from an existing county-maintained roadway until such time as the existing county-maintained road is paved and a special assessment project has been established to pave the unpaved road section constructed under one or more unpaved road agreements.

4.

Each lot, parcel or tract of land must meet all of the requirements of the comprehensive plan, shall satisfy all criteria of the environmental health section, and shall meet all of the requirements of the office of natural resource management and land clearing regulations for issuance of a building permit.

5.

There shall be a limitation of one agreement per parcel, which agreement shall not be transferable.

6.

By entering into an unpaved road agreement, every participating property owner is responsible for all costs related to the construction of the unpaved roadway including survey, design, initial signage and installation, engineering, permitting and construction for the length of roadway covered by the agreement. The roadway shall be designed and stabilized to a minimum of between LBR 40 and 60 and shall be reviewed and inspected by the county for approval prior to the issuance of a building permit. Additionally, to defer the cost of county maintenance, the agreement shall stipulate a fixed amount that must be paid prior to execution of the agreement. This amount would be determined by the road and bridge department or its successor and adopted by resolution in an amount necessary to reimburse the county for maintenance costs. The unpaved road agreement shall also constitute the participating land owner's consent to a special assessment project involving the payment of a proportionate share of the county's cost to pave the road, in the manner prescribed by subsections 7.a. and 8. once 50 percent of the owners of lots abutting the unpaved road have obtained building permits.

7.

The following conditions shall apply to the county's acceptance of a dedication or deed for right-of-way required to construct an unpaved road:

a.

Whether an unpaved road agreement exists or not, the county's acceptance of an owner's offer to dedicate or deed right-of-way, shall constitute an agreement by the property owner dedicating or conveying the right-of-way necessary to construct an unpaved road as well as the agreement of any successor in interest to that owner, approving a special assessment project involving the payment of a proportionate share of the county's cost to pave the road once 50 percent of the owners of lots abutting the unpaved road have obtained building permits. The proportionate share shall be calculated by a method of assessment procedure which may entail a calculation based upon a property's front footage along the road, or the number of platted lots fronting the road, or square footage of platted lots fronting the road, or any combination thereof deemed equitable by the board of county commissioners. Said method of assessment shall be based upon the cost to pave the road and shall be assigned to the number of assessable lots specially benefitted by the paving project. Assessable lots shall include all lots specially benefitted by the paving project, including any lot, the owner of which, has entered into an unpaved road agreement and any owner who has not entered into an unpaved loan agreement.

b.

Either upon receipt of notice that a special assessment is being levied for paving of an unpaved road or upon application for a building permit for property abutting an unpaved road, any owner of such property may enter into an agreement for the assessment and repayment of the owner's pro rata share for the cost of paving the unpaved road, as determined in subparagraph a. above, at the time the paving project is completed. The agreement shall provide for repayment of the owner's assessment upon completion of the paving project, in either (1) a lump sum; or (2) over a period of ten years in monthly or annual installments of the principal due bearing interest at a rate not to exceed two percent above the true interest cost of any bonds used to finance the cost for paving the road, or (3) through any other method of financing approved by the board. Such an agreement shall take the form of a recordable assessment lien against the owner's property, provided the county may also record against any owner of an assessable lot who does not enter into an unpaved road an assessment lien in the amount of the assessment plus interest (as recited above) payable over a period of ten years in monthly or annual installments. Per Resolution 04-045, Brevard County will use the uniform method of collecting non-ad valorem assessments levied by the county for any assessment lien. Default in non-ad valorem taxes can result in a tax certificate being sold on the property and additional charges will accrue, subject to the exception provided for in subparagraph 8. below.

c.

Dedication or conveyance of the right-of-way required to pave an unpaved road, as well as the maintenance responsibility for that right-of-way, must be accepted by resolution duly adopted, by the Brevard County Board of County Commissioners. The resolution shall provide a legal description of the property and shall be recorded in the public records of Brevard County, Florida.

8.

Any special assessment project arising out of the application of this subsection 62-102(c) shall be implemented using the procedures and a methodology provided for in F.S. ch. 170. Upon completion of the special assessment project and compliance with the procedures in F.S. ch. 170, the special assessment shall constitute a lien with the priority provided for in said statutes. The special assessment lien shall be enforceable by the uniform method of collecting non-ad valorem assessments, provided that the owners of residential property qualified for a homestead exemption on September 30, 2008, may defer payment of the assessment until the homestead is sold and conveyed. The county shall record a release of lien within 60 days after the date the assessment is paid.

9.

Where the subject roadway on which the agreement applies intersects with an existing county-maintained dirt road, and where all buildable lots abutting the subject roadway are two and one-half acres or larger in area, the property owner would not be required to participate in the establishment of a special assessment project for paving of the road.

(d)

Waivers and appeals to unpaved roads. Where the county manager and/or his designee, and affected agencies find that undue hardship may result from strict compliance with subsection (c), the county manager may approve a waiver to the requirements of this section if the waiver meets the criteria set forth in subparagraphs 1. through 5. below and serves the public interest. An applicant seeking a waiver shall submit a written request, stating the reasons for the waiver and the facts, which support such waiver. All requests for waivers must be submitted prior to or in conjunction with the application for an unpaved road. The county manager and affected agencies shall not approve a waiver, unless they determine the following:

1.

The particular physical condition, shape or topography of the specific property involved causes an undue hardship to the applicant if the strict letter of the code is carried out.

2.

The granting of the waiver will not be physically or economically injurious to other adjacent property.

3.

The conditions upon which a request for waiver are based, are peculiar to the property for which the waiver is sought and are not generally applicable to other property and do not result from actions of the applicant.

4.

The waiver is consistent with the intent and purpose of the county zoning regulations, the county land use plan and the requirements of this section.

5.

The county and affected agencies concur that undue hardship was placed on the applicant.

If the county manager and affected agencies approve a waiver, the county may attach such conditions to the waiver to assure that the waiver will comply with the intent and purpose of this section.

The board of county commissioners shall hear appeals relating to any administrative decisions or determination concerning implementation or application of the section provisions, and shall make the final decision approving or disapproving the decision or interpretation in the event of such appeal. The request for appeal shall be submitted to the county within 30 calendar days of the written decision or determination. A hearing shall be scheduled before the board of county commissioners within 30 days of receipt of the written request. The request shall contain the basis for the appeal.

(Code 1979, § 14-41; Ord. No. 93-27, § 1, 11-10-93; Ord. No. 96-25, §§ 1—3, 5-21-96; Ord. No. 97-02, § 1, 1-28-97; Ord. No. 00-36, 7-25-00; Ord. No. 01-33, § 1, 7-10-01; Ord. No. 03-011, § 1, 3-4-03; Ord. No. 08-46, § 1, 11-17-08; Ord. No. 10-19, 10-12-10; Ord. No. 2016-11, § 1, 7-12-16)

The following circumstances provide prima facie evidence that a property is being used as a resort dwelling:

(1)

On a non-homestead property, different occupants have been observed on at least two separate occasions within any 90-day period;

(2)

On a non-homesteaded property, different vehicles with different license plate tags have been observed parked on at least two separate occasions in any 90-day period; or

(3)

The property is advertised or held out to the public as a vacation rental, vacation resort, short-term rental, short-term resort, or resort rental.

(Ord. No. 06-37, § 2, 7-11-06)

Editor's note— Section 3 of Ord. No. 06-37, adopted and effective July 11, 2006, states the following: "If the enactment of this ordinance creates any non-conforming uses, then the provision of Section 62-1191 shall apply. The term "the effective date of the division" referred to in Section 62-1191, shall be deemed to expressly mean the effective date of this ordinance."

Pursuant to and in accordance with the provisions of F.S. ch. 163, pt. II (F.S. § 163.3161 et seq.), the Local Government Comprehensive Planning and Land Development Regulation Act, the county planning and zoning board is hereby designated and established as the local planning agency for the unincorporated areas of the county. The county planning and zoning board shall be designated as the local planning agency and shall also perform the responsibilities of the land development regulation commission under F.S. ch. 163, pt. II (F.S. § 163.3161 et seq.).

(Code 1979, § 14-3)

State Law reference— Functions of land development regulation commission, F.S. § 163.3194(2).

(a)

Duties. The local planning agency, in accordance with the provisions of F.S. ch. 163, shall:

(1)

Assume the general responsibility for the conduct of the comprehensive planning program and the preparation of the comprehensive plan for the county.

(2)

Coordinate the comprehensive plan of the county or elements or portions thereof with the comprehensive plans of other local governments and the state.

(3)

Recommend the comprehensive plan of the county or elements or portions thereof to the board of county commissioners for adoption.

(4)

Monitor and oversee the effectiveness and status of the comprehensive plan of the county and recommend to the board of county commissioners such changes in the comprehensive plan as may from time to time be required.

(5)

Perform the responsibilities for the land development regulation commission as provided in F.S. ch. 163, pt. II (F.S. § 163.3161 et seq.).

(6)

Hear appeals of administrative decisions or interpretations of the county comprehensive plan and presentation of claims of regulatory taking or abrogation of vested rights.

(b)

Designation of agency or person to prepare comprehensive plan. The board of county commissioners, in cooperation with the local planning agency, may designate any agency, department, committee or person to prepare the comprehensive plan for the county, or any element thereof, under the supervision and direction of the local planning agency.

(c)

Organization; rules and procedures. The initial and subsequent members of the local planning agency shall be appointed, shall select their officers and shall follow such rules and procedures as established for the county planning and zoning board or as established by any subsequent resolution or ordinance adopted from time to time by the board of county commissioners.

(d)

Meetings and records to be public. All meetings of the local planning agency shall be open to the public, and all records of such agency shall be public records.

(e)

Funding. The board of county commissioners shall appropriate funds at its discretion for salaries of staff, fees and expenses necessary in the conduct of the work of the local planning agency, and also establish a schedule of fees to be charged by the agency.

(Code 1979, § 14-4)

There is hereby created the planning and zoning board of the county, which shall also function as the local planning agency and the land development regulation commission. The planning and zoning board shall advise and assist the board of county commissioners on the following matters:

(1)

Applications for amendments to the official zoning map.

(2)

Proposed amendments to this chapter and amendments to or adoption of other ordinances or regulations relating to zoning and land use within the county. Failure of the board of county commissioners to obtain the advice and assistance of the planning and zoning board on such amendment or on such new ordinances or regulations shall not be interpreted or considered to affect the validity of such amendments or ordinances or regulations when adopted.

(3)

Land use plans and other planning documents relating to zoning and land use within the county.

(4)

Interpretations of conflicts within this chapter or conflicts because of the existence of other laws, regulations and ordinances relating to zoning and land use control within the county.

(5)

Such other matters as requested from time to time by the board of county commissioners.

(Code 1979, § 14-20.60(A))

There shall be appointed to the planning and zoning board three members by each county commissioner and ratified by the board of county commissioners. There shall also be appointed to the planning and zoning board a member to represent the county school district. The school district representative shall be appointed by the school board and shall serve as a non-voting member. There shall also be appointed to the planning and zoning board a representative of Patrick Space Force Base who shall act on behalf of all military installations within the jurisdiction of the county. This military representative shall be appointed by the commanding officer of Patrick Space Force Base and shall be considered an ex officio non-voting member. Each member shall reside in the county, but is not required to be a resident of the county commission district for which he is designated to serve. The term of appointment shall be for two years beginning on January 1 of the year of appointment, and expiring after the term of two years or with the term of the commissioner making the appointment, whichever occurs first. Upon expiration of a term, a member may continue to serve until he or she is reappointed or until a new appointment is made. Appointments to fill a vacancy shall be made by the county commissioner responsible for the initial appointment and ratified by the board of county commissioners, and the appointment shall be for the unexpired term. Members of the planning and zoning board shall serve at the pleasure of the board of county commissioners. The members shall be paid such compensation and actual expenses as provided by the board of county commissioners from time to time by resolution. No member of the planning and zoning board shall serve on the board of adjustment.

Term limits. A member shall not be appointed for more than eight consecutive years, unless otherwise decided by the commissioner making the appointment. A commissioner may request the board of county commissioners waive the aforementioned term limits should they have difficulty filling a member position.

(Code 1979, § 14-20.60(B); Ord. No. 03-12, § 1, 3-4-03; Ord. No. 07-20, § 1, 5-8-07; Ord. No. 2018-05, § 1, 3-20-18; Ord. No. 2019-16, § 1, 7-23-19; Ord. No. 2019-29, § 1, 12-10-19; Ord. No. 2024-28, § 1, 10-22-24)

Editor's note— Ord. No. 2024-28, §2, adopted October 22, 2024, repealed § 63-183, which pertained to alternate members and derived from Code 1979, § 14-20.60(C); Ord. No. 2018-05, § 1, 3-20-18.

(a)

At the first meeting held in January of each year, or as soon thereafter as possible, the members of the planning and zoning board shall elect, by majority vote of the voting members in attendance, a chairman, vice-chairman and such other officers as deemed necessary. Such officers shall serve a term of one year. The chairman shall serve as the presiding officer at all meetings of the planning and zoning board.

(b)

The planning and zoning board shall have the power to adopt from time to time its own rules of procedure. Such rules of procedure and any amendment thereto shall be effective only upon approval of the board of county commissioners. Upon such approval, a copy of such rules of procedure and any amendment shall be filed with the clerk of the board of county commissioners.

(c)

Six members of the planning and zoning board shall constitute a quorum, and no action may be taken if less than six members are present and voting. A majority of such quorum shall be sufficient for formal action by the planning and zoning board.

(d)

(1)

If the county attorney or designee, the county manager or designee, or any member of the planning and zoning board determines that a zoning or CUP criteria or factual matter presented on a particular application warrants further staff evaluation or the need for additional information, the planning and zoning board may continue the hearing to a time certain to allow staff to assemble the requested information. All such requested information shall be prepared in report or written summary form and delivered to the applicant at least ten days prior to the date set for the continuation of the hearing. This rule shall apply in the same manner to the local planning agency under section 62-152(c), when the agency is considering any application for a comprehensive plan amendment, hearing appeals of administrative decisions or interpretation of the county comprehensive plan, or presentation of claims of regulatory taking or abrogation of vested rights.

(2)

The applicant must submit any new evidence, not presented to the planning and zoning board, at least two weeks prior to the board of county commissioners meeting. Failure to do so may result in a continuation of the public hearing.

(Code 1979, § 14-20.60(D); Ord. No. 97-51, § 1, 12-9-97; Ord. No. 2024-28, § 3, 10-22-24)

(a)

The zoning official shall serve as secretary to the planning and zoning board and shall be the custodian of all records of the planning and zoning board. The minutes and all records of the planning and zoning board are hereby declared to constitute public records.

(b)

The regular meeting dates shall be established from time to time by the board of county commissioners. Special meetings of the planning and zoning board may be called by the zoning official, by the chairman of the planning and zoning board, or by a majority vote of the members in attendance of the planning and zoning board. Notice of special meetings shall be given to each member of the planning and zoning board at least 24 hours prior to such special meeting.

(c)

Any owner of real property in the county may request a special public hearing where unusual or peculiar hardship exists. The discretion on whether or not to call a special public hearing shall be made by the zoning official or the board of county commissioners. The owner of real property requesting such special public hearing shall accompany his application with a minimum fee established by resolution of the board. Notice of these special meetings shall be given to each member of the planning and zoning board at least 24 hours prior to such special meeting.

(Code 1979, § 14-20.60(E); Ord. No. 97-49, § 2, 12-9-97; Ord. No. 99-07, § 2, 1-28-99; Ord. No. 2024-28, § 4, 10-22-24)

All meetings, discussions and deliberations of the planning and zoning board shall be at a public meeting. The holding of any closed or executive sessions of the planning and zoning board where members of the public are excluded or prohibited from commenting is hereby abolished.

(Code 1979, § 14-20.60(F))

State Law reference— Public meetings required, F.S. § 163.3174(5).

The board of county commissioners hereby establishes a board of adjustment, which shall, in appropriate cases and subject to appropriate conditions and safeguards, grant variances to the terms of this chapter, except for section 62-102, articles III, IV, V, VII, VIII, X, XI, XII, XIII, division 4 and article XV of this chapter, where such variances are in harmony with the general purpose and intent of such provisions and in accordance with general or specific rules therein contained. The members of the board of adjustment shall serve without compensation, but shall be paid actual expenses incurred in performance of their duties as members of the board of adjustment, which shall not exceed allowances as prescribed by state law. The board of adjustment shall operate as provided in this division.

(Code 1979, § 14-5; Ord. No. 97-39, § 8, 10-7-97; Ord. No. 00-60, § 1, 12-5-00)

(a)

The board of adjustment shall consist of one member and one alternate for each county commissioner's district. The term of appointment shall be for two years beginning on January 1 of the year of appointment and expiring after the term of two years or with the term of the commissioner making the appointment, whichever occurs first. A district commissioner's appointee may continue to serve after the expiration of the district commissioner's term until he or she is reappointed or until a new appointment is made. Each member shall reside in the county, but is not required to be a resident of the commission district for which he or she is designated to serve. Appointments to fill a vacancy shall be made by the board of county commissioners for the unexpired term only. Members of the board of adjustment shall serve at the pleasure of the board of county commissioners. The members shall be paid such compensation and actual expenses as provided by the board of county commissioners from time to time by resolution. No member of the board of adjustment shall serve on the planning and zoning board.

(b)

The chairman shall designate those alternates who are to vote if the number of alternate members exceeds the number of absent regular members.

(Code 1979, § 14-20.64(A); Ord. No. 93-16, § 1, 6-22-93; Ord. No. 2018-04, § 1, 3-20-18; Ord. No. 2019-32, § 1, 12-10-19)

(a)

Meetings of the board of adjustment shall be held at the call of the zoning official and at such other times as the board of adjustment may determine. The chairman, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses. All meetings of the board of adjustment shall be open to the public. The board of adjustment shall keep minutes of its proceedings showing the vote of each member upon each question, or, if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the board of county commissioners and shall be a public record.

(b)

Any owner of real property in the county may request a special public hearing where unusual or peculiar hardship exists. The discretion on whether or not to call a special public hearing shall be made by the zoning official or the board of county commissioners. The owner of real property requesting such special public hearing shall accompany the application with a fee established by resolution of the board. Notice of these special meetings shall be given to each member of the board of adjustment at least 24 hours prior to such special meeting.

(Code 1979, § 14-20.64(B); Ord. No. 99-07, § 3, 1-28-99)

Editor's note— Ord. No. 00-60, §§ 2, 3, adopted December 15, 2000, repealed §§ 62-214, 62-215, which pertained to appeal procedure and effect of appeal, respectively, and derived from Code 1979, § 14-20.64(C), (D); Ord. No. 97-39, § 9, adopted Oct. 7, 1997.

The board shall have the power to authorize upon appeal in specific cases such variance from the terms of this chapter as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of this chapter will result in unnecessary hardship, so that the spirit of this chapter shall be observed and substantial justice done.

(Code 1979, § 14-20.64(E); Ord. No. 97-39, § 10, 10-7-97; Ord. No. 00-60, § 4, 12-5-00)

Editor's note— Ord. No. 00-60, § 5, adopted December 5, 2000, repealed § 62-217, which pertained to required vote and derived from Code 1979, § 14-20.64(F).

Any person or persons jointly or severally aggrieved by any decision of the board of adjustment may, within 30 days after the date of the public hearing at which the decision was rendered, but not thereafter, apply to a court of competent jurisdiction for appropriate relief. The board shall not rehear a variance once decided, unless an error in substantive or procedural law is found following the decision, or unless the board makes a finding based on a presentation by the applicant that new evidence, not discoverable by the applicant prior to the initial hearing, is found. A different or more effective presentation or clarification of the same evidence or matters considered at the initial hearing shall not be grounds for a rehearing before the board of adjustment.

(Code 1979, § 14-20.64(G); Ord. No. 00-60, § 6, 12-5-00)

Any person owning an interest in any real property may apply to the board of adjustment for a variance from the provisions of article VI of this chapter, pertaining to zoning, or article IX of this chapter, pertaining to signs. The application shall be accompanied by a fee established from time to time by the board of county commissioners. The application shall be in such form as approved by the board of county commissioners, and shall contain the following information:

(1)

The name of the owner of the particular real property shall be included.

(2)

If the applicant is other than all the owners of the particular property, written consent signed by all owners of the particular real property shall be attached.

(3)

The application shall contain the legal description of the particular real property, accompanied by a certified survey of that portion of the map maintained by the property appraiser reflecting the boundaries of the particular real property.

(4)

The application shall contain the current zoning classification, special use classification, and any specified conditions or conditional use designation as recorded on the official zoning maps.

(5)

The application shall contain the variance requested from the provisions of this chapter, plus the basis for the request.

(Code 1979, § 14-20.65(A); Ord. No. 98-12, § 1, 2-26-98)

Upon receipt of an executed application pursuant to this division, the zoning official shall forthwith schedule a hearing on the application before the board of adjustment. Notice of the time and place of the public hearing shall be given to the applicant at least 15 days prior to the public hearing. Notice of the time and place of the public hearing on the application shall be published once, at least 15 days prior to the public hearing, in a newspaper of general circulation within the county. Such notice shall contain the name of the applicant, the legal description of the affected property, the existing zoning classification, special use classification or conditional use designation and the requested variance from the provisions of this chapter. In addition, a notice containing such information shall be posted in the county courthouse in Titusville, Florida, by county officials, and a notice containing such information, excluding the legal description but including total affected acreage, shall be posted by the applicant for the variance on the affected property at least 15 days prior to the hearing. If the property abuts a public road right-of-way, the notice shall be posted in such a manner as to be visible from that road right-of-way. An affidavit signed by the owner or applicant evidencing posting of the affected real property must be received by the zoning division prior to the time that such matter is heard by the board of adjustment. Failure to provide such affidavit prior to the hearing shall result in tabling the application for one meeting, at cost to the applicant, or denial of the request. In addition, written notice shall be given to the appropriate airport manager by the zoning official relative to any variance requested from the provisions of article VI, division 6, subdivision II, of this chapter, pertaining to airport restrictions. It shall be unlawful for any person to remove the notice containing such information from the affected property or from the county courthouse in Titusville, Florida. Any person found guilty of violating this section shall be deemed guilty of an offense, and shall be punished by a fine not to exceed $500.00 or by imprisonment in the county jail for a period not to exceed 60 days, or by both such fine and imprisonment.

(Code 1979, § 14-20.65(B); Ord. No. 97-49, § 3, 12-9-97)

State Law reference— Penalty for ordinance violations, F.S. § 125.69.

(a)

A variance may be granted when it will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this chapter will result in unnecessary and undue hardship; provided, specifically, however, that personal medical reasons shall not be considered as grounds for establishing undue hardship sufficient to qualify an applicant for a variance. Economic reasons may be considered only in instances where a landowner cannot yield a reasonable use and/or reasonable return under the existing land development regulations. In order to authorize any variance from the terms of this chapter, the board of adjustment shall find all of the following factors to exist:

(1)

That special conditions and circumstances exist which are not applicable to other lands, structures or buildings in the applicable zoning classification;

(2)

That the special conditions and circumstances do not result from the actions of the applicant;

(3)

That granting the variance requested will not confer on the applicant any special privilege that is denied by the provisions of this chapter to other lands, buildings or structures in the identical zoning classification;

(4)

That literal interpretation of the provisions of this chapter would deprive the applicant of rights commonly enjoyed by other properties in the identical zoning classification under the provisions of this chapter and will constitute unnecessary and undue hardship on the applicant;

(5)

That the variance granted is the minimum variance that will make possible the reasonable use of the land, building or structure; and

(6)

That the granting of the variance will be in harmony with the general intent and purpose of this chapter and that such use variance will not be injurious to the area involved or otherwise detrimental to the public welfare.

(b)

In no case shall the board of adjustment grant a variance which will result in a change of land use that would not be permitted in the applicable zoning classification.

(Code 1979, § 14-20.65(C); Ord. No. 95-50, § 1, 10-19-95)

Any person or persons jointly or severally aggrieved by any decision of the board of adjustment may, within 30 days after the date of the public hearing at which the decision was rendered, but not thereafter, apply to a court of competent jurisdiction for appropriate relief. The board shall not rehear a variance once decided unless an error in substantive or procedural law is found following the decision, or unless the board makes a finding based on a presentation by the applicant that new evidence, not discoverable by the applicant prior to the initial hearing, is found. A different or more effective presentation or clarification of the same evidence or matters considered at the initial hearing shall not be grounds for a rehearing before the board of adjustment.

(Code 1979, § 14-20.65(D))

In granting any variance, the board of adjustment may prescribe appropriate conditions and safeguards in conformity with this chapter and any ordinance enacted by the board of county commissioners. The board of adjustment may also, as a condition of approval, require compliance with any site plan or other specification submitted by the applicant when it has relied upon such site plan or specifications in granting the variance. Violation of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation of section 62-1254. Variances granted from a specific requirement of this chapter shall be in full force only as long as that specific requirement is in effect. Furthermore, the board of adjustment may prescribe a reasonable time limit within which the action for which the variance is required shall be begun or completed or both.

(Code 1979, § 14-20.65(E))

Appeals to the board of county commissioners may be taken by any person aggrieved by the decision or interpretation of any administrative officer rendered under this chapter, except for section 62-102, articles III, IV, V, VII, VIII, X, XI, XII, XIII, division 4 and article XV of this chapter. Such appeal shall be taken within 30 days from the date of such decision or interpretation by filing with the officer from which the appeal is taken and with the board of county commissioners a notice of appeal, specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the board of county commissioners all the papers constituting the record upon which the action appealed from was taken. Appeals of decisions of an administrative officer shall be subject to the same procedures as specified in division 5 of this article.

(Ord. No. 00-60, § 7, 12-5-00)

An appeal shall stay all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken certifies to the board of county commissioners, after the notice of appeal has been filed with him, that by reason of facts stated in the certificate a stay would, in his opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed otherwise than by a restraining order, which may be granted by the board of county commissioners or by a court of competent jurisdiction on application, on notice to the officer from whom the appeal is taken, and on due cause shown. The board of county commissioners shall fix a reasonable time for the hearing of the appeal, give public notice thereof, as well as due notice to the parties in interest, and decide the matter within a reasonable time. Upon the hearing, any party may appear in person or by an agent, who must have written authorization from the party, or by attorney.

(Ord. No. 00-60, § 8, 12-5-00)

The board of county commissioners shall have the following powers:

(1)

The board shall have the power to hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of this chapter, except section 62-102, articles III, IV, V, VII, VIII, X, XI, XII, XIII, division 4 and article XV of this chapter.

(2)

Upon hearing such appeals, the board may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination made by such administrative official, and may make any necessary order, requirement, decision or determination, and to that end shall have all the powers of the officer from whom the appeal is taken.

(3)

Upon hearing such appeals, the board's decision shall not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of this chapter will result in unnecessary hardship, so that the spirit of this chapter shall be observed and substantial justice done.

(Ord. No. 00-60, § 9, 12-5-00)

The concurring vote of three members of the board of county commissioners shall be necessary to reverse any order, requirement, decision or determination of any administrative official.

(Ord. No. 00-60, § 10, 12-5-00)

Reasonable accommodation. It is the policy of the county to provide fair access to housing for persons with disabilities and all other persons protected by the Federal Fair Housing Act, including providing reasonable accommodation in the application of the zoning regulations governing residential uses pursuant to federal and state law.

(1)

The persons requesting relief must demonstrate that the requested accommodation is appropriate and that, without the accommodation, they would be denied the opportunity to enjoy housing of their choice in the community of their choice. Once this standard is met, the burden shifts to the county to determine whether the requested accommodation is unreasonable.

(2)

In making a determination as to whether a requested accommodation is reasonable, the following standards shall be applied:

a.

Whether the requested accommodation imposes an undue financial or administrative burden on county services, such as but not limited to, law enforcement, utilities, public works, traffic safety, public safety and public transportation; or

b.

Whether the requested accommodation requires a fundamental alteration of the ordinance, zoning regulations, comprehensive plan and the neighborhood; or

c.

Whether the requested accommodation undermines legitimate purposes and effects of existing zoning.

(3)

The following factors shall be weighed in considering reasonable accommodation:

a.

Special needs created by the disability;

b.

Potential benefit that can be accomplished by the requested modification, which may include:

1.

Opportunity to enjoy support, security, location, services, proximity to work or friends provided in a group home in the community of choice;

2.

Opportunity to plan a residential community with special amenities;

c.

Potential impact on surrounding uses;

d.

Physical attributes of the property and structures thereon;

e.

Choice of alternative accommodations which may provide an equivalent level of benefit; and

f.

Whether, in the case of a determination involving a single family dwelling, the household would be considered a single housekeeping unit if it were not using special services that are required because of the disabilities of the residents.

g.

Other considerations when evaluating requests for reasonable accommodation:

1.

Character of the neighborhood and zoning classification (residential or non-residential);

2.

Residential character of the house (consistency of interior and exterior with single-family usage); and

3.

Parking needs of residents.

(4)

Procedures for evaluating reasonable accommodation.

a.

Requests for reasonable accommodation shall follow the application and public hearing procedure set forth in Article II, Division 6 of this chapter.

b.

In the event that a request for reasonable accommodation is not decided within 60 days of the date of application, the request shall be automatically granted. This time period may be extended upon agreement of both parties.

(Ord. No. 2003-03, § 1, 1-14-03)