The intent and purpose of this article is to set forth the procedure and requirements for applying for variances, special exceptions, rezonings and administrative appeals, as set forth in this article.

(Ord. No. 11-2005, § 2, 6-21-05)

(a)

Unless otherwise provided in this chapter, the city council shall render all final decisions regarding rezonings and the board of adjustment shall render all final decisions regarding variances, special exceptions and administrative appeals. Final decisions of the board of adjustment and city council shall be subject to appellate review as set forth in this division.

(b)

The respective board rendering final decisions may impose reasonable conditions and safeguards on any approved rezoning, variance, special exception or administrative appeal to the extent deemed necessary and relevant to ensure compliance with applicable criteria and other applicable provisions of the city code and comprehensive plan. Such conditions and safeguards, when made part of the terms under which the rezoning, variance, special exception, or administrative appeal is granted, have the same force and effect as any other provision of this Code, and violation of same shall be deemed to be a violation of this Code and punishable by this Code.

(c)

All formal decisions shall be based on competent substantial evidence and the applicable criteria set forth in this article.

(d)

The city council may adopt, by resolution, quasi-judicial rules and procedures to implement this chapter.

(e)

All final decisions rendered under this chapter must be consistent with the city's comprehensive plan.

(f)

All final permits issued under this chapter may be temporarily suspended or absolutely revoked by majority vote of the board that rendered the final decision if the board later determines at a public hearing that either:

(1)

The applicant has obtained the final permit upon false statements, fraud, deceit, misleading or perjurious statements, or suppression of material facts;

(2)

The applicant has committed substantial violations of the terms and conditions of any final permit; or

(3)

The applicant has used any final permit to knowingly allow illegal activities to be conducted on the property which is subject to said permit.

(Ord. No. 11-2005, § 2, 6-21-05; Ord. No. 07-2007, § 2, 12-4-07)

(a)

All applicants and interested parties shall be afforded minimal due process as required by law, including the right to receive notice, be heard, present evidence, cross-examine witnesses, and be represented by a duly authorized representative.

(b)

In addition to any notice requirements provided by state law, all public hearings under this article shall initially be publicly noticed for at least 14 calendar days prior to the date of the hearing. Public hearings that are postponed or continued by the city shall be publicly noticed for at least three calendar days unless otherwise required by the board. Said notice shall include the address of the subject property, matter to be considered and the time, date and place of the hearing. The city shall post notice of public hearings in the following manner:

(1)

Posting the affected property.

(2)

Posting at City Hall and on the city's official website.

(3)

Notifying all owners of real property (including homeowner's and condominium associations) approximately adjacent to and within 500 feet of the subject property. All notices required by this subparagraph may be sent by regular mail. Further, unless otherwise provided by law, notices required by this subsection shall only be mailed for the first public hearing before the first board required to hear an application under this article. Subsequent hearings on the same application shall not be required to be noticed by this subsection. Applicants shall be solely responsible for the costs incurred for notification under this subparagraph.

(4)

Notifying, by regular mail or email, the owner(s) of the subject property for which the application is being made.

The notice requirements set forth in subsections (1), (2), and (3) above are hereby deemed to be courtesy notices. The failure to provide such courtesy notices shall not be a basis of appealing any decision made under this chapter.

(c)

When any proposed zoning district boundary change, variance, or special exception lies within approximately 500 feet of the boundary of any property under another government's jurisdiction, notice shall be forwarded to the governing body of the appropriate government authority in order to afford such body an opportunity to appear at the hearing and express its opinion on the effect of said proposed district boundary change, variance or special exception.

(d)

Comprehensive administrative rezoning, variance, or special exception applications initiated by the city affecting more than one noncontiguous parcel of land and more than five acres of land shall not be subject to the notice requirements set forth in this section. Unless otherwise required by state law, all public hearings under this subsection (d) shall initially be publicly noticed for at least 14 calendar days prior to the date of the hearing. Public hearings that are postponed or continued by the city shall be publicly noticed for at least three calendar days unless otherwise required by the board. In addition to any notice requirements provided by state law, public notice of the hearing of such applications shall include the address of the subject property, matter to be considered and the time, date and place of the hearing and shall be posted in the following manner:

(1)

Posting at City Hall and on the city's official website.

(2)

Notifying, by regular mail, the owner(s) of the subject parcels of land for which the administrative application is being made by the city.

(Ord. No. 11-2005, § 2, 6-21-05; Ord. No. 07-2007, § 2, 12-4-07; Ord. No. 04-2008, § 3, 5-6-08; Ord. No. 09-2019, § 2, 5-21-19)

The city manager or the city manager's designee is hereby authorized to prepare applications in furtherance of this chapter. At a minimum, all applications for rezonings, variances, special exceptions, and administrative appeals shall be accompanied by the applicable application fee adopted by the city council and shall contain the following information:

(1)

A general description of the relief sought under this chapter.

(2)

A brief explanation as to why the application satisfies the relevant criteria set forth in this article.

(3)

The name(s) of the owner(s) of the particular real property.

(4)

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

(5)

The legal description of the particular real property, accompanied by a certified survey or that portion of the map maintained by the Brevard County Property Appraiser reflecting the boundaries of the real property.

(6)

The current and future land use and the zoning designations on the real property.

(7)

Certified survey or scaled sketch drawing depicting the property boundaries and all structures thereon.

(8)

For rezonings, variances, and special exceptions, applicants shall provide to the city, at least 30 days in advance of the first public meeting at which the request will be considered, the names and addresses of all affected property owners.

For the purpose of this requirement, an affected property owner or owners shall mean any property owner or agent of record owning property which lies within a radius of 500 feet from any boundary of the property for which the application is sought, as reflected in the survey or that portion of the map maintained by the Brevard County Property Appraiser reflecting the boundaries of the parcels affected.

(Ord. No. 11-2005, § 2, 6-21-05; Ord. No. 13-2011, § 6, 12-20-11)

(a)

The city staff shall be required to review all applications for rezonings, variances, special exceptions and administrative appeals, and make written recommendations to the applicable city board.

(b)

In the event an application does not contain information reasonably necessary for staff to complete its review and recommendation to the applicable city board, staff shall provide written notice to the applicant that the application is deficient. The written notice shall specify the additional information necessary for staff to complete its review and recommendation on the application. If the applicant fails to cure the deficiencies within 30 calendar days of the date of the written notice, the application shall be deemed abandoned and administratively denied on the basis of an incomplete application. Upon written request of the applicant, the city manager or the city manager's designee may grant one 30-day extension of time for the applicant to cure the deficiencies, provided the applicant demonstrates good cause for the extension. Extension requests shall be submitted to the city manager prior to the expiration of the initial 30-day period.

(c)

Upon completion of staff's review and written recommendation on an application, the application shall be scheduled for consideration by the planning and zoning board or board of adjustment, as required by this article, for a duly noticed public hearing at the board's next available meeting.

(Ord. No. 11-2005, § 2, 6-21-05; Ord. No. 01-09, § 2, 2-3-2009)

(a)

Applicants shall be required to attend all public hearings required by this article to answer questions and to provide supplemental evidence and testimony on the applicable review criteria. Failure of an applicant to appear at the public hearings may be a basis for denial of an application where the board determines that the application on its face, as well as any additional evidence and testimony presented during the public hearing, do not provide substantial competent evidence to support approving the application.

(b)

Applicants may request to postpone a scheduled public hearing on an application one time. Said request shall be submitted in writing to the city manager prior to the scheduled hearing. If postponed, the hearing shall be scheduled for the board's next available meeting and the applicant shall be responsible for the cost of any additional notices required by this article.

(c)

During the course of a public hearing, the board may, on its own motion or at the request of staff, an applicant or interested person, table or postpone consideration of an application at any time for the following reasons:

(1)

To obtain additional information relevant to the application;

(2)

Because of time constraints;

(3)

To afford interested parties an opportunity to testify and provide additional relevant evidence;

(4)

For lack of quorum;

(5)

For emergencies;

(6)

To seek legal counsel; or

(7)

For any other circumstances in furtherance of due process.

(Ord. No. 01-2009, § 2, 2-3-09)

When a petition for rezoning, variance, special exception or administrative appeal has been acted on by the city council or board of adjustment and was disapproved or failed to pass, such petition in the same or substantially similar form shall not be reconsidered by the city council or board of adjustment for a period of two years. This section shall not apply to the property owner if the original request was an administrative application initiated by any official, department, board or agency of the city acting in any official capacity. This section shall not apply to any initial petition or petition for reconsideration filed by the city council.

(Ord. No. 11-2005, § 2, 6-21-05)

(a)

Any variance or special exception approved by the board of adjustment pursuant to this article shall expire 12 months after the effective date of such approval unless a building permit based upon and incorporating the variance or special expiration is issued by the city within said time period. Upon written request of the property owner, the city manager may extend the expiration date by an additional 12-month period, provided the property owner demonstrates good cause for the extension. Such request shall be submitted to the city manager prior to the expiration of the first 12-month period. Any extension granted by the city manager pursuant to this section shall not increase the scope or intensity of the special exception or variance. Further, the approved special exception or variance shall remain subject to any applicable terms and conditions imposed as part of the board of adjustment's original approval. In addition, if the aforementioned building permit is timely issued, and the building permit subsequently expires and the subject development project is abandoned or discontinued for a period of six months, the variance or special exception shall be deemed expired and null and void.

(b)

Thereafter, a variance or special exception shall expire and become null and void if the use granted thereunder is abandoned or otherwise ceases to exist for a period of 18 consecutive months. As used herein, abandoned shall mean that the applicant has gone out of business, let all business licenses lapse or has otherwise changed the use of the property in conformance with this Code. Once a variance or special exception has lapsed due to abandonment, the applicant must resubmit its request for variance or special exception pursuant to this article.

(Ord. No. 11-2005, § 2, 6-21-05; Ord. No. 02-2014, § 2, 1-21-14)

(a)

Appeals from board of adjustment or community appearance board.

(1)

Any party aggrieved by any final decision of the board of adjustment or the community appearance board made under any chapter of this Code shall have the right to appeal the final decision to the city council.

(2)

Any such appeal shall be filed with the city manager within ten calendar days of the date of the final decision. The city manager shall schedule the city council's consideration of the appeal for the next available regular city council meeting and shall provide the party seeking appellate review with written notice of the date, time and location of said meeting.

(3)

The city council's consideration of the final decision being appealed shall be de novo. The city council shall hear and consider the evidence and testimony of any interested party and shall either affirm or reverse, wholly or in part, the decision of the board of adjustment or community appearance board. However, with respect to administrative appeals under section 110-40, the city council's de novo review shall be of the record transmitted to the board of adjustment by the building official. A concurring majority vote of the city council shall be required for any decision made by the city council under this section.

(4)

Failure of any aggrieved party to appeal to the city council pursuant to this section shall be deemed a waiver of that party's right to judicial review.

(b)

Appeals from city council. Any party aggrieved by any final decision of the city council made under this section shall have the right to file an appropriate action in a court of competent jurisdiction.

(Ord. No. 11-2005, § 2, 6-21-05; Ord. No. 07-2007, § 2, 12-4-07)

(a)

Any of the following may file an application for rezoning requesting that the sections, restrictions and boundaries set forth in this chapter be amended, supplemented, changed or repealed:

(1)

Any person or entity.

(2)

The city council.

(3)

The planning and zoning board.

(4)

The city manager.

(b)

Rezoning applications shall be submitted at least 30 days prior to the planning and zoning board meeting at which such application is to be considered.

(Ord. No. 11-2005, § 2, 6-21-05)

(a)

The planning and zoning board shall be required to review all rezoning applications and make a written recommendation to the city council. Such recommendation shall include the reasons for the board's recommendation and show the board has considered the applicable rezoning criteria set forth in this section.

(b)

Upon receipt of the planning and zoning board's recommendation, the city council shall make a final decision on the application. If the city council determines that the planning and zoning board has not made a recommendation on an application within a reasonable period of time, the city council may, at its discretion, consider an application without the planning and zoning board's recommendation.

(c)

All rezoning applications shall be reviewed for compliance with the following standards:

(1)

The proposed rezoning change is in compliance with all procedural requirements established by the City Code and law;

(2)

The proposed rezoning change is consistent with the city's comprehensive plan including, but not limited to, the future land use map and the proposed change would not have an adverse effect on the comprehensive plan;

(3)

The proposed rezoning change is consistent with any master plan applicable to the property;

(4)

The proposed rezoning change is not contrary to the land use pattern established by the city's comprehensive plan;

(5)

The proposed rezoning change would not create a spot zone prohibited by law;

(6)

The proposed rezoning change would not materially alter the population density pattern in a manner that would overtax the load on public facilities and services such as schools, utilities, streets, and other municipal services and infrastructure;

(7)

The proposed rezoning would not result in existing zoning district boundaries that are illogically drawn in relation to existing conditions on the property and the surrounding area and the land use pattern established by the city's comprehensive plan;

(8)

Changed or changing conditions make the proposed rezoning necessary;

(9)

The proposed rezoning change will not seriously reduce light or air to adjacent areas;

(10)

Should the city be presented with competent substantial evidence indicating that property values will be adversely affected by the proposed rezoning, the applicant must demonstrate that the proposed rezoning change will not adversely affect property values in the surrounding area;

(11)

The proposed rezoning will not be a substantial detriment to the future improvement or development of vacant adjacent property;

(12)

The proposed rezoning will not constitute a grant of special privilege to an individual owner as contrasted with the public welfare;

(13)

The proposed rezoning change is not out of scale or incompatible with the needs of the neighborhood or the city;

(14)

The proposed rezoning does not violate any applicable land use regulations adopted by the city.

(d)

In approving a change in the zoning classification on a lot or parcel of land, at the request of or with the concurrence of the owner(s) of said lot or parcel, the city council may approve a rezoning subject to restrictions provided such restrictions do not confer any special privilege upon the owner(s) or subject property that would otherwise be denied by the city's land development regulations in the same zoning district. Such restrictions may include one or more of the following:

(1)

Use restrictions greater than those otherwise specified for that particular district;

(2)

Density restrictions greater than those otherwise specified for the particular district;

(3)

Setbacks greater than those otherwise specified for the particular district, including setbacks from lakes and major arterial roadways;

(4)

Height limits more restrictive than otherwise permitted in the district;

(5)

Minimum lot areas or minimum widths greater than otherwise specified for the particular district;

(6)

Minimum floor area greater than otherwise specified for structures in the particular district;

(7)

Open space requirements greater than otherwise specified for structures in the particular district;

(8)

Parking, loading driveway or traffic requirements more restrictive than otherwise required for the particular district;

(9)

Fencing or screening requirements greater than otherwise required for the particular district;

(10)

Restrictions on any other matters which the city council is authorized to regulate.

Upon approval of such restrictive rezonings, the city shall enter a reference to the restrictions on the city's official zoning map, and a notice of zoning restrictions shall be recorded in the public records of Brevard County. Restrictions shall run with the land, without regard to transfer of ownership or other interests, and may be removed only upon further amendment to the zoning classification of the subject property in accordance with the procedures prescribed herein.

(Ord. No. 11-2005, § 2, 6-21-05)

(a)

Any of the following may file a variance application requesting variance from this chapter for their real property:

(1)

The owner(s) of the property described in the application.

(2)

Tenants, with the owner's sworn consent.

(3)

Duly authorized agents of the owner(s) of the property evidenced by a written power of attorney.

(4)

The city council.

(5)

The planning and zoning board.

(6)

The city manager.

(b)

Variance applications shall be submitted at least 30 days prior to the board of adjustment meeting at which such application is to be considered.

(Ord. No. 11-2005, § 2, 6-21-05; Ord. No. 13-2011, § 6, 12-20-11)

(a)

The board of adjustment shall be required to review all variance applications and shall make a final decision on each application based on the applicable variance criteria set forth in this section.

(b)

All variance decisions shall be based on an affirmative finding as to each of the following criteria:

(1)

That special conditions and circumstances exist which are peculiar to the land, structure or building involved and which are not applicable to other lands, buildings or structures in the same zoning district.

(2)

That literal interpretation of this chapter would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms of this chapter and would work unnecessary and undue hardship on the applicant.

(3)

That the special conditions and circumstances referred to in subsection (1) do not result from the actions of the applicant.

(4)

That approval of the variance requested will not confer on the applicant any special privilege that is denied by this chapter to other lands, buildings, or structures in the same zoning district.

(5)

That the requested variance is the minimum variance from this chapter necessary to make possible the reasonable use of the land, building or structure.

(6)

That approval of the variance will be in harmony with the general intent and purpose of this chapter, and will not be injurious to the neighborhood or otherwise detrimental to the public welfare.

(c)

Under no circumstances shall the board of adjustment grant a variance to permit a use not generally or by special exception permitted in the district involved or any use expressly or by implication prohibited by this chapter.

(Ord. No. 11-2005, § 2, 6-21-05; Ord. No. 13-2011, § 6, 12-20-11)

(a)

Any of the following may file a special exception application requesting a special exception from this chapter for their real property:

(1)

The owner(s) of the property described in the application.

(2)

Tenants, with the owner's sworn consent.

(3)

Duly authorized agents of the owner(s) of the property evidenced by a written power of attorney.

(4)

The city council.

(5)

The planning and zoning board.

(6)

The city manager.

(b)

Special exception applications shall be submitted at least 30 days prior to the planning and zoning board meeting at which such application is to be considered.

(c)

In addition to the application requirements set forth in this article, special exception applications shall indicate the section of this Code under which the special exception is sought and state the grounds upon which the special exception is sought.

(Ord. No. 11-2005, § 2, 6-21-05)

(a)

The planning and zoning board shall be required to review all special exception applications and make a written recommendation to the board of adjustment. Such recommendation shall include the reasons for the board's recommendation and show the board has considered the applicable special exception criteria set forth in this section.

(b)

Upon receipt of the planning and zoning board's recommendation, the board of adjustment shall make a final decision on the application. If the board of adjustment determines that the planning and zoning board has not made a recommendation on an application within a reasonable period of time, the board of adjustment may, at its discretion, consider an application without the planning and zoning board's recommendation.

(c)

All special exception recommendations and final decisions shall be based on the following criteria to the extent applicable:

(1)

Whether the applicant has demonstrated the special exception, including its proposed scale and intensity, traffic-generating characteristics, and offsite impacts, is compatible and harmonious with adjacent land uses, and will not adversely impact land use activities in the immediate vicinity.

(2)

Whether the applicant has demonstrated the size and shape of the site, the proposed access and internal circulation, and the design enhancements to be adequate to accommodate the proposed scale and intensity of the special exception requested. The site shall be of sufficient size to accommodate design amenities such as screening, buffers, landscaping, open space, off-street parking, and other similar site plan improvements needed to mitigate against potential adverse impacts of the proposed special exception.

(3)

Whether the proposed special exception will have an adverse impact on the local economy, including governmental fiscal impact, employment, and property values.

(4)

Whether the proposed special exception will have an adverse impact on the natural environment, including air, water, and noise pollution, vegetation and wildlife, open space, noxious and desirable vegetation, and flood hazards.

(5)

Whether the proposed special exception will have an adverse impact on historic, scenic, and cultural resources, including views and vistas, and loss or degradation of cultural and historic resources.

(6)

Whether the proposed special exception will have an adverse impact on public services, including water, sewer, surface water management, police, fire, parks and recreation, streets, public transportation, marina and waterways, and bicycle and pedestrian facilities.

(7)

Whether the proposed special exception will have an adverse impact on housing and social conditions, including variety of housing unit types and prices, and neighborhood quality.

(Ord. No. 11-2005, § 2, 6-21-05)

(a)

Any final administrative decision regarding the enforcement or interpretation of this chapter, where it is alleged there is an error by an administrative official, can be appealed as set forth in this section. Any of the following may seek review of an administrative decision pursuant to this section:

(1)

City council;

(2)

Planning and zoning board;

(3)

Any person aggrieved or affected by any decision of an administrative official in the interpretation of any portion of this chapter.

(b)

Appeals shall be taken within 30 days after such administrative decision is made by filing a written notice of appeal with the city clerk's office stating the name of the decision maker, date of the decision, applicable code provisions and the specific grounds for appeal. Upon receipt of the notice of appeal, the city clerk's office shall work with the appropriate department to schedule the appeal before the board of adjustment and transmit all documents, plans, papers or other materials constituting the record upon which the action appealed from was taken.

(c)

The board of adjustment shall be required to review all administrative appeals and prepare written findings constituting its final decision on the administrative appeal based on the criteria set forth in this section.

(d)

Review of administrative decisions shall be based on the following criteria:

(1)

Whether the applicant was properly afforded procedural due process;

(2)

Whether the decision under review is supported by competent, substantial evidence; and

(3)

Whether the decision under review complied with applicable law, including a proper interpretation of any provision under this chapter.

(e)

An administrative appeal filed pursuant to this section stays all proceedings in furtherance of the action appealed from, unless the administrative official from whom the appeal is taken certifies in writing to the board of adjustment after the notice of appeal is filed that, because of facts stated in the certificate, a stay would, in the administrative official's opinion, cause imminent peril to life and property. In such case where the administrative official makes such certification, proceedings shall not be stayed other than by an injunction, which may be granted by the board of adjustment or issued by a court of competent jurisdiction.

(f)

The board of adjustment shall have the right to reverse or affirm, wholly or in part, or may modify the order, requirement, decision or determination as ought to be made, and to that end, shall have all the powers of the officers from whom the appeal is taken. The concurring majority vote of the board of adjustment shall be necessary for any decision made pursuant to this section.

(Ord. No. 07-2007, § 2, 12-4-07; Ord. No. 13-2011, § 6, 12-20-11)