To hear and decide appeals where it is alleged there is error in any final administrative decision by an administrative official regarding the enforcement or interpretation of this ordinance and the sign ordinance, unless otherwise expressly provided for by the City Code.

(A)

HEARINGS; APPEALS; NOTICE. Appeals to the board of adjustment may be made by any applicant or party aggrieved by a decision of an administrative official in the interpretation of any portion of these regulations. Such appeals shall be made within thirty (30) days of the date of said decision, or such lesser period as may be provided by the rules of the board of adjustment as to any other decision of the administrative official. Such appeal shall be made by filing with the city clerk's office, a written notice of appeal stating the name of the decision-making administrative official, the date of the decision, all applicable code provisions and the specific grounds for appeal. The city clerk's office shall forthwith transmit to the board of adjustment, all papers constituting the record upon which the action appealed from was taken. The board of adjustment shall fix a reasonable time for hearing of the appeal, give public notice thereof at least fifteen (15) days in advance of public hearing, as well as due notice to the parties in interest, and decide the same within a reasonable time. At the hearing, any party may appear in person or by agent or attorney.

(B)

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.

(C)

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.

(D)

STAY OF PROCEEDING. An appeal stays all proceedings in furtherance of the action appealed from, unless the administrative official from whom the appeal is taken certifies to the board of adjustment, after the administrative official is informed by the city clerk's office of the notice of appeal filed, that by reason of facts stated in the certificate, a stay would, in his or her opinion, cause imminent peril to life and property. In such case, proceedings shall not be stayed other than by a restraining order which may be granted by the board of adjustment or by a court of record on application, on notice to the administrative official charged with the enforcement of this ordinance and from whom the appeal is taken on due cause shown.

(E)

COURTESY NOTICE. A courtesy notice may be mailed to the property owners of record within a radius of five hundred (500) feet or advertised in the legal notice section of a newspaper of general circulation; provided, however, that failure to mail or receive or publish such courtesy notice shall not affect any action or proceedings taken hereunder. Appellant shall be solely responsible for all costs incurred for notification under this subparagraph.

(Ord. No. 9-88, § II, 5-10-88; Ord. No. 13-94, § 2, 6-14-94; Ord. No. 03-2017, § 2, 3-14-2017)

To hear and decide only such special exceptions as the board of adjustment is specifically authorized to pass on by the terms of this ordinance; to decide such questions as are involved in determining whether special exceptions should be granted; and to grant special exceptions with such conditions and safeguards as are appropriate under this ordinance or other applicable ordinances; or to deny special exceptions when not in harmony with the purpose and intent of this ordinance. A special exception shall not be granted by the board of adjustment unless and until:

(A)

A written application for a special exception is submitted indicating the section of this ordinance under which the special exception is sought and stating the grounds on which it is requested.

(B)

Notice shall be given at least fifteen (15) days in advance of public hearing. The owner of the property for which special exception is sought or his agent shall be notified by certified mail. Notice of such hearing shall be posted on the property for which special exception is sought, at the city hall, and shall be published in a newspaper of regular circulation within the City of Cocoa.

(C)

A courtesy notice may be mailed to the property owners of record within a radius of five hundred (500) feet; provided, however, that failure to mail or receive such courtesy notice shall not affect any action or proceedings taken hereunder.

(D)

Any party may appear in person, or be represented by an attorney at the public hearing; the board of adjustment shall make such findings as it is empowered under the various sections of this ordinance but in no case shall grant a special exception that in any way adversely affects the public interest.

Before any special exception shall be issued, the board of adjustment shall make written findings certifying compliance with the specific rules governing individual special exceptions, and that satisfactory provision and arrangement has been made concerning the following where applicable:

(A)

Ingress and egress to property and proposed structures thereon with particular reference to automotive and pedestrian safety and convenience, traffic flow and control, and access in case of fire or catastrophe.

(B)

Off-street parking and loading areas where required, with particular attention to the items in (A) above, and economic, noise, glare, or odor effects of the special exception on adjoining properties and properties generally in the district.

(C)

Refuse and service areas, with particular reference to the items in (A) and (B) above.

(D)

Utilities, with reference to locations, availability, and compatibility.

(E)

Screening and buffering with reference to type, dimensions, and character.

(F)

Signs, if any, and proposed exterior lighting with references to glare, traffic safety, economic effect, and compatibility and harmony with properties in the district.

(G)

Required yards and other open space.

(H)

Height.

(I)

Landscaping.

(J)

Renewal and/or termination dates.

(K)

That the use will be reasonably compatible with surrounding uses in its function, its hours of operation, the type and amount of traffic to be generated, and building size and setbacks, its relationship to land values, and other factors that may be used to measure compatibility.

In granting any special exception, the board of adjustment may prescribe appropriate conditions and safeguards in conformity with this ordinance. Violation of such conditions and safeguards, when made a part of the terms under which the special exception is granted, shall be deemed to be a violation of this ordinance and punishable as provided by this ordinance.

(Ord. No. 1618-3, § 1; Ord. No. 13-94, § 2, 6-14-94)

To authorize upon appeal in specific cases such variance from the terms of this ordinance and the sign ordinance as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this ordinance [would result in unnecessary and undue hardship. A variance] shall not be granted by the board of adjustment unless and until:

(A)

A written application for a variance is submitted demonstrating:

(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 district.

(2)

That literal interpretation of the provisions of this ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this ordinance.

(3)

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

(4)

That granting the variance requested will not confer on the applicant any special privilege that is denied by this ordinance to other lands, structures or dwellings in the same district.

  No nonconforming use of neighboring lands, structures or buildings in the same district, and no permitted use of land, structures or buildings in other districts, shall be considered grounds for the issuance of a variance.

(B)

Notice of public hearing shall be given as specified for special exceptions.

(C)

A courtesy notice may be mailed to the property owners of record within a radius of five hundred (500) feet; provided, however, that failure to mail or receive such courtesy notice shall not affect any action or proceedings taken hereunder.

(D)

Any party may appear in person, or be represented by an agent or by an attorney at the public hearing.

(E)

The board of adjustment shall make findings that the requirements of 3(A) above have been met by the applicant for a variance.

(F)

The board of adjustment shall further make a finding that the reasons set forth in the application justify the granting of the variance, and that the variance is the minimum variance that will make possible the reasonable use of the land, building or structure.

(G)

The board of adjustment shall further make a finding that the granting of the variance will be in harmony with the general purpose and intent of this ordinance, will not be injurious to the neighborhood, or otherwise detrimental to the public welfare.

In granting any variance, the board of adjustment may prescribe appropriate conditions and safeguards in conformity with this ordinance. 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 this ordinance and punishable as provided by this ordinance.

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 the terms of this ordinance.

(Ord. No. 1618-3, § 2; Ord. No. 13-94, § 2, 6-14-94)

All hearings for special exceptions or variances before the board of adjustment shall be initiated by (1) the owner or owners of at least seventy-five percent (75%) of the property described in the application; (2) tenant or tenants, with owners' sworn-to-consent; (3) duly authorized agents; (4) city council; (5) planning and zoning board; (6) any department or agency of the city.

In exercising any of the above listed powers, the board of adjustment may, so long as the action is in conformity with the terms of this ordinance, reverse or affirm wholly or partly, or may modify the order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as should be made, and to that end shall have all of the powers of the administrative official from whom the appeal was taken.

The concurring vote of a majority of the members of the board of adjustment shall be necessary to reverse any order, requirement, decision or determination of an administrative official.

(Ord. No. 20-03, § 3, 7-22-03; Ord. No. 03-2017, § 2, 3-14-2017)

(A)

SPECIAL EXCEPTION. The board of adjustment may only authorize a special exception, as defined in article V, Zoning, that is specifically listed for each applicable zoning district (refer to article XI, Schedule of District Regulations).

(B)

VARIANCES. The board of adjustment may only authorize a variance, as defined in article V, Zoning, and in accordance with the following provisions:

(1)

A variance is authorized only for height, area, size of structure or size of yards and open spaces.

(2)

Establishment or expansion of a use otherwise prohibited shall not be allowed by variance.

(3)

A variance shall not be authorized because of the presence of nonconformities in the zoning district or uses in an adjoining zoning district.

(4)

No variance is allowed for financial or self-imposed hardship.

(Ord. No. 13-94, § 3, 6-14-94)

Editor's note— Ord. No. 03-2017, § 2, adopted March 14, 2017, repealed the former § 7, which pertained to unsafe buildings and derived from Ord. No. 21-96, § 3, adopted Dec. 10, 1996.

(A)

GRANTED BY BOARD OF ADJUSTMENT. The board of adjustment may grant a waiver from the strict application of the following provisions or sections of the Cocoa Code, providing the procedures in section 8(C) are followed and findings made:

(1)

Article XIII, section 19—Stormwater Retention Facilities;

(2)

Article XIII, section 5—Visual Screens (fences, walls, hedges);

(3)

Article XII—Off-street Parking and Loading Regulations;

(4)

Chapter 18, article IV, Division 2. Standards and Specifications, section 18-120(D) Concrete Curb and Gutter;

(5)

Chapter 3, Advertising and Signs;

(6)

Article XIII, section 4—Access Control; and

(7)

Article XIII, section 15—Vehicular Use Areas.

(B)

WAIVERS TO BE CONSIDERED AS PART OF DEVELOPMENT REVIEW. Any person desiring to undertake a development activity not in conformance with the provisions or sections listed in section 8(A) may apply for a waiver in conjunction with the appropriate application(s) for development review provided by the city. The waiver shall be granted or denied in conjunction with the application for development review.

(C)

LIMITATIONS ON GRANTING WAIVERS. The board shall only grant a waiver if it positively makes the following findings, based on competent substantial evidence.

(1)

Initial finding. The board of adjustment shall first find that the need for the proposed waiver arises out of the physical surroundings, shape, topographical condition, or other physical or environmental conditions that are unique to the specific property involved. The board shall make the required finding based on the granting of the waiver for the applicant's property alone, unless, however, the condition is common to numerous sites so that requests for similar waivers are likely to be received, then the board shall make the required findings based on the cumulative conditions of the area.

(2)

If the board of adjustment makes a positive finding in section 8(C)(1) above, the board shall make a positive finding on each of the following before granting a waiver.

(a)

There are practical or economic difficulties in carrying out the strict letter of the regulation;

(b)

The waiver request is not based exclusively upon a desire to reduce the cost of developing the applicant's property.

(c)

The proposed waiver will not substantially increase congestion on surrounding public streets, the danger of fire, or other hazard to the public.

(d)

The waiver will not substantially diminish property values in, nor alter the essential character of, the area surrounding the applicant's property.

(e)

The effect of the proposed waiver is in harmony with the general intent of the Cocoa Comprehensive Plan and Code and the specific intent of the relevant subject area(s) of the Code.

(f)

The effect of the proposed waiver will not result in additional and significant threats to public safety, additional public expense, the creation of nuisances, fraud or victimization of the public, or conflicts with the Comprehensive Plan and other local ordinances.

(3)

In granting a development approval involving a waiver, the board of adjustment may impose such conditions and restrictions upon the premises benefitted by a waiver as may be necessary to allow a positive finding to be made on any of the foregoing factors in section 8(C)(2) above, or to minimize the injurious effect of the waiver.

(D)

MISCELLANEOUS REQUIREMENTS.

(1)

Notice of public hearing shall be given as specified in the Cocoa Code for special exceptions.

(2)

The board of adjustment shall follow the quasi-judicial procedures adopted by the city council.

(E)

DUTIES OF CITY COUNCIL. The duties of the city council in connection with this section shall not include hearing and deciding questions of interpretation and enforcement that may arise; such duties are fully vested in the board of adjustment. Under this section, the city council shall have only the following duties:

(1)

Considering, adopting, or rejecting any amendments or repeal to this section; and

(2)

Establishing a schedule of fees.

(F)

DUTIES OF CITY MANAGER. The duties of the city manager, or his designees, shall be to:

(1)

Prescribe an appropriate waiver application. Multiple waiver requests, for a particular property, shall be allowed in one (1) application.

(2)

Collect a fee from any applicant equal to one hundred dollars ($100.00) per application.

(3)

Upon receiving an application for a waiver and prior to the public hearing provide a detailed analysis and recommendation of approval or disapproval of the application to the board of adjustment based on section 8(C) above.

(4)

Within seven (7) calendar days of the board's decision, notify the applicant in writing of the decision to approve or disapprove of the waiver request. If any conditions are placed on an approval, the conditions shall also be stated in the notification.

(5)

Create and maintain a permanent and indexed record of all decisions of the board of adjustment under this section.

(6)

Promulgate a copy of this section, and any amendment thereto, to staff, members of the board of adjustment, and city attorney.

(G)

WAIVER IS NOT A VARIANCE. A waiver shall not be construed as a variance. Any person seeking a variance from the Code for height, area, size of structure or size of yards and open spaces shall follow the variance provisions in the Cocoa Code. The legal burden for being granted a waiver shall be pursuant to this section and shall not be pursuant to criteria established in case law involving variances.

(H)

APPEALS. Any person(s) or the city aggrieved by any decision of the board of adjustment, may apply to the courts for relief in the manner provided by general law.

(I)

REHEARINGS. The board of adjustment shall not rehear a waiver request within six (6) months after the date of the initial public hearing 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 shall not be grounds for rehearing before the board of adjustment.

(J)

WAIVER RUNS WITH LAND. A waiver granted under this section shall be deemed to run with the land.

(Ord. No. 20-96, § 1, 12-10-96; Ord. No. 25-97, § 1, 11-11-97; Ord. No. 18-2024, § 2, 12-10-2024)

(A)

AUTHORIZED BY COMMUNITY DEVELOPMENT DIRECTOR. Variances and waivers to the adopted land development regulations may be authorized administratively by the Community Development Director, subject to the procedures and limitations of this section.

(B)

VARIANCES AND WAIVERS SUBJECT TO ADMINISTRATIVE REVIEW AND APPROVAL.

(1)

Administrative variances may be considered for height, area, or size of structure; and/or size of yard and open space of applicable zoning district. Administrative variances shall not exceed twenty percent (20%) of the applicable requirement.

(2)

Administrative waivers may be considered for the following:

(a)

Appendix A, Article XIII, section 5—Visual Screens (fences, walls, hedges): increase in maximum permitted fence or wall height not to exceed two feet (2'); and/or change in permitted material and design.

(b)

Appendix A, Article XII—Off-street Parking and Loading Regulations: decrease in the minimum required parking spaces not to exceed twenty percent (20%); increase in maximum permitted parking area ratio coverage not to exceed twenty percent (20%).

(c)

Chapter 3, Advertising and Signs: increase in maximum permitted sign area or height not to exceed twenty percent (20%).

The Community Development Director may authorize the administrative review and approval of a variance or waiver from the applicability of specific terms of these land development regulations when such variance or waiver will not be contrary to the public interest. Such variance or waiver shall not be granted if it is deemed to have an adverse effect on the neighborhood or general welfare of the area, or has the effect of nullifying the intent and purpose of these land development regulations.

(C)

APPLICATION SUBMITTAL AND FEE.

(1)

Application for an administrative variance or waiver shall be made on a form provided by the Community Development Department and shall include the following supporting documentation and any additional information as deemed necessary:

(a)

A signed affidavit (submitted on a form prepared by the city) from all abutting property owners indicating no objection to the requested variance or waiver. Failure of the applicant to obtain signatures of all abutting property owners will require a public hearing before the Board of Adjustment for a variance or waiver under the provisions of Article XVII. For the purpose of this section, the term "abutting" shall include those properties directly across a road having a functional classification of "local" or "collector" as indicated on Map M-II-2 "Functional Roadway Classification Map", Transportation Element of the City of Cocoa Comprehensive Plan, from the property requesting the variance or waiver but shall not include lots that touch at only a point. This requirement shall not apply to waivers of Article XII—Off-street Parking and Loading Regulations.

(b)

The application for an administrative variance or waiver shall be accompanied by an application fee established by resolution of the City Council.

(D)

CONDITIONS. In granting any variance or waiver, the Community Development Director may prescribe appropriate conditions and safeguards to ensure that the purposes of these regulations are carried out, and to ensure that the variance or waiver granted is the minimum necessary to allow reasonable use of the land and improvements. The variance or waiver shall not have an adverse effect on the neighborhood or general welfare of the area.

(E)

FURTHER ACTION. Denial of a request for an administrative variance or waiver by the Community Development Director pursuant to this section shall not preclude an applicant from requesting a variance or waiver from the Board of Adjustment. In such cases, the applicant shall submit a formal application for a variance or waiver consistent with the requirements set forth in this article.

(Ord. No. 03-2013, § 2, 2-26-2013)