These Land Development Regulations establish separate zoning districts, each of which is an appropriate area for the location of a specific group of uses. Within each of the zoning districts established by these Land Development Regulations or its later amendments, there exist lots, structures, and uses of land which were lawful before these Land Development Regulations were adopted, but which would be prohibited, restricted, or regulated under the terms of these Land Development Regulations.

Uses which are not permitted in a zoning district as outlined in these Land Development Regulations shall be deemed "nonconforming uses." Such nonconforming uses are declared incompatible with the intent and purpose of the districts. It is consistent with these Land Development Regulations that such nonconforming uses not be permitted to continue without restriction.

These Land Development Regulations also establishes appropriate dimensional requirements, building setbacks, minimum lot dimensions, building dimensions, lot coverage, minimum landscape buffer requirements, and other requirements for each zoning district. Buildings which do not comply with these dimensional requirements are deemed "nonconforming structures." The distinction between nonconforming uses and nonconforming structures is that nonconforming uses may eventually be phased out or eliminated whereas nonconforming structures are regulated.

The intent of this article is to provide for the regulation of nonconformities and to specify those circumstances under which nonconformities shall be permitted to continue (i.e., variances granted). It is also the intent of this Section to allow for a reduction in the nonconformity when the condition cannot be corrected or eliminated altogether. However, this reduction does not waive the City's desire to eventually have the property come into compliance.

33-101.01. Purpose and Interpretation.

The purpose of this Article is to promote the public health, safety and general welfare of the City and its citizens promote the re-use of land and structures that contribute to the character, diversity and sustainability of a neighborhood and to promote economic redevelopment and the re-use of developed land by regulating structures and uses that do not conform to one or more provisions of the Land Development Regulations but were lawfully established and in compliance with all applicable ordinances, regulations, codes and laws at the time the structure was constructed and/or the use began.

Nothing contained within these Land Development Regulations shall be construed nor shall it be implied so as to allow for the continuation or alteration of structures or uses that were not in compliance with all applicable ordinances, regulations, codes and laws at the time the structure was constructed or the use began.

This Article is intended to regulate:

(a)

The change of use of nonconforming land a nonconforming building or nonconforming structure.

(b)

The reconstruction of a nonconforming building or structure or to any alteration of a nonconforming building or structure when the alteration would increase the footprint height or volume of the building or structure or any other exterior structural change (hereinafter to be known collectively as "alteration").

(c)

The alteration of land building or structure to provide for use for a purpose or in a manner different from the use to which it was put before the alteration or for its use for the same purpose to a greater extent (hereinafter to be known collectively as "change of use") of a lawfully established nonconforming use of land a building or structure by establishing the standards by which the use a building or structure may be altered or changed.

(d)

The alteration of the use of land to ensure that a building or structure conducted under a lawfully issued land development permit shall conform to any subsequent amendment of the Land Development Regulations unless the structural or land alteration or use of the property is commenced within a period of not more than 180 days after the issuance of the land development permit and, in cases involving construction, unless such construction is continued to completion in a continuous and reasonably expeditious manner, which shall not exceed 2 years from the date of issuance of the land development order.

The provisions of Article VI of Chapter 33 of the Land Development Regulations shall regulate signs in every respect [Note: Section 29(b) of this Ordinance provides that the provisions of Subsection 33-102.04(d) shall be moved to Article VII.].

It is not the purpose of this article to encourage or otherwise allow development to occur which does not meet the minimum standards or achieve the intent of the regulations set forth in these Land Development Regulations. Further, the City does not consider the cost of compliance with these regulations an unnecessary hardship since the regulations apply equally to all development within the City.

(Ord. No. 2013-11, § 1, 8-5-13; Ord. No. 2022-07, § 22, 5-16-22)

Editor's note— Ord. No. 2022-07, § 22, amended § 33-101 in its entirety, by amending § 33-101.01 and deleting § 33.101.02 entitled "Types of nonconformities.

33-102.01

Alteration and reconstruction of nonconforming single-family and two-family uses and structures.

(a)

Alteration or reconstruction by-right. Alteration or reconstruction of a nonconforming single-family or two-family residential use or structure, including accessory structures shall not be considered an increase in the nonconforming nature of the structure and shall be permitted by right provided that all of the following standards are met:

(1)

Alteration or reconstruction of a structure which is nonconforming due to setback requirements will not result in additional encroachment by the nonconforming setback(s); and

(2)

Alteration or reconstruction of a structure which is nonconforming due to insufficient lot area will not result in the expansion of the structure into the minimum front, side and rear yard requirements; and

(3)

Alteration or reconstruction of a structure which is nonconforming due to height requirements will not result in an increase in the height of the structure; and

(4)

The proposed alteration or reconstruction will not result in any additional violation of any other zoning requirements; and

(5)

The proposed alteration or reconstruction will not result in more than a 20% increase in the gross floor area of the existing structure.

(b)

Alteration or reconstruction subject to Planning Board review and approval. Alteration or reconstruction of a nonconforming single-family or two-family use or structure including accessory structures, that does not comply with the provisions of Subsection (a) may be allowed only upon approval by the Planning Board with all of the following specific findings being made in a development order that such alteration or reconstruction:

(1)

Will not create a new nonconformity or violation; and

(2)

Will enhance the general character and quality of the neighborhood as determined by sound and generally accepted land use planning practices and principles; and

(3)

Will be consistent with the architectural design and style of the abutting properties and surrounding neighborhood; and

(4)

Will provide adequate off-street parking for the use of the property; and

(5)

Will not be more detrimental to the neighborhood than the existing nonconforming use and/or structure as determined by sound and generally accepted land use planning practices and principles.

33-102.02

Alteration or change of nonconforming multifamily and nonresidential structures and uses.

(a)

Multifamily and nonresidential structures. Alteration to a nonconforming multifamily or nonresidential structure, including accessory structures, may be allowed only upon approval of the Planning Board with all of the following specific findings being made in a development order that such alteration:

(1)

Will not create a new nonconformity or violation; and

(2)

Will enhance the general character and quality of the neighborhood as determined by sound and generally accepted land use planning practices and principles; and

(3)

Will be consistent with the architectural design and style of the abutting properties and surrounding neighborhood; and

(4)

Will provide adequate off-street parking for the use of the property.

(b)

Multifamily and nonresidential uses. Alteration or change in use to an existing nonconforming multifamily use or nonresidential use may be allowed only upon approval of the Planning Board with all of the following specific findings being made in a development order that such alteration:

(1)

Will enhance the general character and quality of the neighborhood as determined by sound and generally accepted land use planning practices and principles; and

(2)

Will provide adequate off-street parking for the use of the property.

33-102.03

Restoration and reconstruction of damaged nonconforming multifamily and nonresidential structures.

(a)

Restoration and reconstruction by-right. Nothing in these Land Development Regulations prevent the reconstruction or substantial restoration and the continuance of use of a nonconforming multifamily or nonresidential structure, including accessory structures which has been damaged or destroyed by adverse weather or other natural disaster fire explosion, flood, riot, act of the public enemy or accident of any kind if the estimated replacement cost of such restorations does not exceed 50% of the most recent appraised building value of the structure in effect at the time of the damage that is on record with the Volusia County Property Appraiser: provided, however that the structure as restored shall be constructed within the existing footprint and shall not be greater in volume, height or area than the original nonconforming structure and provided, further, however, that said restoration must commence within 12 months of the initial damage and be completed within 24 months of said damage. The estimated cost of such restoration shall be determined by the Building Official. If the property owner disputes the determination of the Building Official the property owner may request that the Building Official base the determination upon receipt of an estimate from an independent contractor approved by the Building Official with all costs of obtaining said estimate being borne by the property owner with proof of payment being provided to the City at the time that the building permit application is filed. Said restoration costs shall also include the costs of all improvements or upgrades required by the Florida Building Code. The City shall not require the submission of any contract for the construction as a condition of issuing a building permit.

(b)

Restoration and reconstruction subject to Planning Board review and approval. The reconstruction or substantial restoration of a damaged nonconforming multifamily or nonresidential structure including accessory structures, where said restoration exceeds 50% of the most recent appraised building value of the structure in effect at the time of the damage that is on record with the Volusia County Property Appraiser may be allowed only upon approval of a development order by the Planning Board, if the application for review and approval for said reconstruction or substantial restoration is filed with the Community Development Department within 12 months of the damage to the structure, and with all of the following specific written findings being made in the development order:

(1)

The structure as restored will be constructed within the existing footprint and not be greater in volume height or area than the original nonconforming structure; and

(2)

The structure as restored will enhance the general character and qualities of the neighborhood as determined by sound and generally accepted land use planning practices and principles; and

(3)

The structure will be consistent with the architectural design and style of the abutting properties and surrounding neighborhood; and

(4)

Adequate off-street parking is available for the use of the structure; and

(5)

The nonconforming nature of the structure is lessened to the greatest extent reasonably practicable as determined by sound and generally accepted land use planning practices and principles; and

(6)

The reconstruction or substantial restoration is completed within 24 months of the issuance of the building permit allowing for said reconstruction or substantial restoration; and

(7)

The property owner is in full compliance with all orders issued by the City with respect to securing and maintaining the structure and the premises.

(c)

The reconstruction or substantial restoration of a damaged nonconforming multifamily or nonresidential structure where said restoration exceeds 50% of the most recent appraised building value of the structure in effect at the time of the damage that is on record with the Volusia County Property Appraiser where said damage is the result of neglect shall be prohibited and any reconstruction or substantial restoration shall conform to the requirements of these Land Development Regulations.

33-102.04

Discontinuance and re-establishment of nonconforming uses.

(a)

Re-establishment of a nonconforming use. It is prohibited and unlawful to re-establish a nonconforming use when there has been a change to the permitted uses allowed with regard to a building or structure or land under the zoning district which is applicable to the land which the building or structure is located.

(b)

Discontinuance of a nonconforming use. If the nonconforming use of any building, structure or land has been discontinued for a period of 180 days, it shall not be re-established and all future uses thereof shall be in conformity with the then applicable provisions of these Land Development Regulations.

33-102.05

Development of established vacant nonconforming single-family residential lots.

A vacant preexisting nonconforming lot located in a single-family residential zoning district may be developed as a legal building lot for single-family use, subject to a finding by the Planning Director in a development order of all of the following development standards:

(1)

The development of the property and the structures located thereon meet the building construction standards of the Florida Building Code and is generally consistent with the height bulk and character of the surrounding structures and neighborhood. However the Director shall not require specific building design elements unless the dwelling is a historic property or a contributing property to a historic district is necessary to implement the National Flood Insurance Program is located in a community redevelopment area or is located in a pre-existing planned unit development or master planned community;

(2)

The development of the property will not by reason of air, water, light, noise obstruction of views, traffic safety or traffic congestion negatively affect the character and quality of life of the neighborhood as determined by sound and generally accepted land use planning practices and principles; and

(3)

The development of the property will provide adequate off-street parking for the use of the property; and

(4)

If the vacant nonconforming lot is held in common ownership with an adjoining vacant lot, it shall be deemed "merged" with the adjoining lot to the extent necessary to achieve a minimum of 50 feet in width.

(5)

The lot will conform to the width and lot size standards of the neighborhood within which its located; and

(6)

The front yard building setback requirement will conform to the average front setback of the surrounding properties;

(7)

The side and rear yard building setback requirements will not be less than the average of that of the surrounding properties or a minimum side yard setback of 5' and rear yard setback of 20', whichever is greater.

(Ord. No. 2013-11, § 1, 8-5-13; Ord. No. 2022-07, § 23, 5-16-22)

33-103.01.

Generally. Where there are hardships in the way of carrying out the strict letter of these Land Development Regulations, appeals to the Planning Board may be taken by any person aggrieved or by any department of the City, with approval of the City Manager, affected by any decision of the Planning Director.

33-103.02.

Exceptions. The Planning Board may grant a variance from the strict application of any provision of these Land Development Regulations except as follows:

(a)

No variance shall be granted to the concurrency management provisions or other provisions such that the variance would be inconsistent with State law or the City's Comprehensive Plan.

(b)

The Planning Board shall not vary the type or density of uses allowed in zoning districts. The authority to determine the types and densities of uses allowed in zoning districts is specifically reserved to the legislative action of the City Commission.

33-103.03.

Review criteria. In considering all proposed variations to these Land Development Regulations, the Board, before making any findings in a specific case, shall consider the following criteria:

(a)

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

(b)

Literal interpretation and enforcement of these Land Development Regulations will deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms of these Land Development Regulations, and work unnecessary and undue hardship on the applicant such as natural site conditions, size or shape of lot or existing structure(s);

(c)

Granting of the variance request will not confer on the applicant any special privilege that is denied by these Land Development Regulations to other lands, buildings or structures in the same zoning district;

(d)

The granting of the variance will be in harmony with the general intent and purpose of these Land Development Regulations and the Comprehensive Plan, as amended, and will not be injurious to the surrounding properties or detrimental to the public welfare;

(e)

The variance, if granted, is the minimum variance necessary to make possible the reasonable use of the land, building or structure; and

(f)

The special conditions or circumstances are not the result of actions of the applicant or owner.

33-103.04.

Procedure.

(a)

Application. All requests for variances shall be submitted in writing, using the form provided, to the Planning Division, together with all applicable fees as set by resolution of the City Commission. The Planning Division shall have 5 working days to review the application to determine if the contents are complete. If the application is found to be lacking information requested by the Planning Division or if the data and exhibits are inaccurate, the application will not be considered filed for the purpose of processing and shall not be placed on the Planning Board agenda. An application for a variance shall include the following:

1.

A current survey (no older than 2 years) of the subject property, signed and sealed by a Florida-licensed and registered surveyor.

2.

A scaled site plan clearly illustrating the requested variances.

3.

Legal description of the property, if not contained on submitted survey.

4.

Typed mailing labels addressed to all property owners within the described distance as required by Subsection (d).

5.

A written petition demonstrating compliance with the conditions listed under Section 33-103.03.

(b)

Report to Planning Board. The Planning Division shall submit a written report containing a description of the request and the facts of the case to the Planning Board. A copy of the report shall be made available to the applicant prior to the Planning Board meeting.

(c)

Hearing. In considering all proposed variations to these Land Development Regulations the Planning Board shall, before making any finding in a specific case, or granting any variance, conduct a public hearing which will take place no sooner than seven days after the publishing of a notice of such proposed or requested variance. The notice shall be published one time in a newspaper of general circulation in the City. At the hearing, any party may appear in person or be represented by agent or attorney.

(d)

Notice. The Planning Board shall not hold any hearing or grant any variance without having first notified, by certificate of mail, within at least 7 days prior to the date of the hearing, all parties to the hearing, all property owners within 300' on all sides of the subject property. Except, however, when a hearing under this Section concerns a single-family dwelling or duplex, notification by certificate of mail need only be given to property owners within 100' on all sides of the subject property.

(e)

Contents of notice. The notice shall contain the time and date of the hearing before the Planning Board, and the proposed variance to be considered. Service of the notice to said property owners shall be deemed complete upon the date of mailing.

(f)

Approval.

1.

In granting any variance, appropriate conditions and safeguards may be prescribed to ensure compliance with the requirements of these Land Development Regulations. Such conditions may include time limits for the initiation of the variance, specific minimum or maximum limits to requirements of these Land Development Regulations, or any other conditions reasonably related to the requirements and criteria of these Land Development Regulations.

2.

Variances run with the property and the use of a variance shall not be restricted to the applicant but also to subsequent parties for use on the same property.

(g)

Appeal from Planning Board. Any person or persons jointly or severally, aggrieved by any decision of the Planning Board, or the City may present to a court of competent jurisdiction a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Such petition shall be presented to the court within 30 days after the filing of the decision in the Planning Division, otherwise the decision of the Board will be final.

(h)

Administrative variance.

1.

The Planning Division may grant administrative variances from the height and setback requirements of these Land Development Regulations when found appropriate by the Planning Director based upon sound and generally accepted land use planning practices and principles.

2.

The review criteria for the variance request shall be the same as described in Section 33-103.03, but in no case shall an administrative variance be granted when such request exceeds 1' of the required dimension. In such case, the applicant shall be required to make an application in accordance with the variance procedure established in these Land Development Regulations.

3.

If a structure was built prior to 1960, lot size, rear or side building setback requirements may be reduced by 30%, if deemed appropriate by the Planning Director.

33-103.05. Special provisions where variance is sought from requirements of flood damage prevention regulations.

(a)

Additional finding. In addition to the findings required above, the planning board shall find that the requested variance will not result in an increase in the elevation of the Base Flood, additional threats to public safety, additional public expense, the creation of nuisances, fraud or victimization of the public, or conflicts with other local ordinances.

(b)

Considerations. Before granting a variance, the planning board shall consider:

1.

The danger that materials may be swept from the site onto other lands.

2.

The danger to life and property from flooding erosion.

3.

The potential of the proposed facility and its contents to cause flood damage and the effect of that damage on the owner and the public.

4.

The importance of the services provided by the proposed facility to the community, and whether it is a functionally dependent facility.

5.

The availability of alternative locations, not subject to flooding or erosion, for the proposed use.

6.

The compatibility of the proposed use with existing and anticipated neighboring development.

7.

The relationship of the proposed use to the Comprehensive Plan and floodplain management program for the area.

8.

Safe vehicular accesses to the property in times of flood.

9.

The expected heights, velocity, duration, rate of rise and sediment transport of the floodwaters and effects of wave action, if applicable, at the site.

10.

The costs of providing governmental services during and after floods including maintenance and repair of public utilities and facilities.

(c)

Special restriction for Regulatory Floodways. Variances that would increase flood levels during the Base Flood shall not be issued within any Regulatory Floodway.

(d)

Flowage easements. No variance that would increase flood damage on other property shall be granted unless flowage easements have been obtained from the owners of all affected properties. In no event shall a variance be granted that would increase the elevation of the Base Flood more than one foot.

(e)

Notification. All variances to the flood damage prevention regulations shall:

1.

Specify the difference between the flood protection elevation and the elevation to which the structure is to be built.

2.

State that the variance will result in increased premium rates for flood insurance up to amounts as high as $25.00 for $100.00 of insurance coverage.

3.

State that construction below the flood protection elevation increases risks to life and property.

(f)

Record of variances to be maintained. The director shall maintain a record of all variances including the justification for their issuance and a copy of the notice of the variance. The director shall report all variances in the annual or biennial report to the administrator.

(g)

Historic properties. Notwithstanding the foregoing requirements, special variances may be granted for the reconstruction, rehabilitation or restoration of structures listed on, or classified as contributing to, a district listed on the Local Register of Historic Places. The special variance shall be the minimum necessary to protect the historic character and design of the structure. No special variance shall be granted if the proposed construction, rehabilitation, or restoration will cause the structure to lose its historical designation.

(Ord. No. 2013-11, § 1, 8-5-13; Ord. No. 2022-07, § 24, 5-16-22)