(a)

Except as provided in section 103-10, no building permit shall be issued until a site plan has been approved by the zoning and planning board.

(1)

In reviewing such site plan the zoning and planning board shall consider the location, size, height, spacing, appearance, character and utilization of any building, structure or use and their appurtenances, access and circulation of vehicles and pedestrians, streets, parking area, yards and open spaces, landscaping, and relationship to adjacent property. The site plan must: comply with the goals, objectives, policies and other applicable requirements of the town's comprehensive plan; comply with all applicable codes of the town; and mitigate development traffic impacts to both on-site and off-site development if required pursuant to subsection (c) of this section.

(2)

The zoning and planning board may attach to its approval of a site plan any reasonable conditions, limitations or requirements which are found necessary in its judgment to effectuate the purpose of this section and carry out the spirit and purpose of the zoning code.

(b)

For a single-family residence, duplex residential unit, satellite dish as required by section 113-243, a retention or detention drainage facility pursuant to article V of chapter 14, and uses accessory thereto, a site plan, for the purposes of this section, shall include, but not necessarily be limited to, all of the following:

(1)

Site plan with grades or contours with a site plan data table containing the following: future land use designation; zoning district designation; water/wastewater service provider; site area (square feet and acres); and building footprint coverage. The site plan should graphically indicate the following: municipal boundaries (as applicable); adjacent rights-of-way to opposite property lines (indicate all nearby curb cuts); property lines (dimensioned); and building outlines of all proposed structures which shall be dimensioned.

(2)

Elevations, floor plans and uses of all buildings and structures.

(3)

Location and character of all outside utilities.

(4)

All curb cuts, driveways, parking areas, loading areas, and surfacing materials of same.

(5)

All pedestrian walks, malls, yards, and open spaces, including, but not limited to, pavers and hardscape ground cover.

(6)

Location, size, character, height and orientation of all signs.

(7)

Location, height and general character of walls and fences.

(8)

Location and general character of landscaped areas and the common and botanical name of all trees, shrubs, and plants, with the number and size of each category or individual item, and the proposed watering and continued care in order to maintain the landscaping in accordance with approved site plan.

(9)

All buildings constructed in those areas designated as special hazard areas on the current flood hazard boundary maps published by the Department of Housing and Urban Development, Federal Insurance Administration, shall have all finished floor elevations related to coast and geodetic survey mean sea level datum.

(c)

For commercial, tourist use, and multiple family residential (in excess of two units), a site plan shall include those items described above in subsection (b)(1) through (9) of this section and the following:

(1)

Site plan details shall contain the following (as applicable): ground floor elevation and elevation of all floors (if the project is located in a mixed-use district); storefronts, awnings, entryway features, doors, and windows; pergolas, trellises, and similar items; dumpsters; light fixtures; balconies, railings; trash receptacles, benches, other street furniture.

(2)

Roof plan.

(3)

A site plan data table containing the following in addition to those items in subsection (b)(1) of this section: for residential development, number of dwelling units, type, floor area, site density (gross and net); for non-residential development: uses, gross floor area; parking data: parking required (number of spaces), parking provided (number of spaces), loading zones (if applicable), Americans with Disabilities Act/handicapped parking spaces; floor area ratio (FAR) (total building square footage, including structured parking, divided by site area); and building height (expressed in feet above grade).

(4)

Dimensions and setbacks for all site plan features (i.e., sidewalks, building lengths and widths, balconies, mechanical equipment, fences/walls, monument signs, dumpster enclosures, parking spaces, street widths, and similar items) shall be delineated as follows:

a.

Driveways, parking areas, pavement markings including parking spaces shall be delineated and dimensioned as well as handicapped spaces as applicable.

b.

On-site and street light fixtures shall be located and depicted.

c.

Proposed right-of-way improvements (i.e., bus stops, curbs, and tree plantings) shall be located and shown.

d.

Pedestrian walkways (including public sidewalks and on-site pedestrian paths) shall be located and shown. All sidewalks and walkways shall meet American with Disabilities Act requirements.

e.

Traffic control signage.

f.

Catch basins or other drainage control devices. Article V of chapter 14 requirements shall be met.

g.

Fire hydrants (including on-site and adjacent hydrants) shall be located and shown.

h.

Any on-site easements shall be dimensioned, legal described, and located, together with the purpose of such easement.

(5)

Site lighting, photometric plans, and fixture details shall comply with the following:

a.

To the extent reasonably possible efforts shall be made to keep light poles outside proposed utility easements for water and sewer. Sufficient clearance must be provided from the poles to the edge of travel lane/curb. Additionally, light poles should maintain distances from trees and fire hydrants.

b.

The photometric readings should include the entire site extending beyond the property lines in all directions and fixture summary. A minimum of 0.5 foot-candle spill light is allowed, consideration given where pedestrian oriented light fixtures are located close to rights-of-way. The ratio of maximum to minimum readings shall be less than 12 to one.

c.

Photometric plans must include cut sheets and specifications of all proposed fixtures, including freestanding poles, wall-mounted, soffit, and ground-mounted lighting.

d.

Maximum parking lot overall fixture height must be no more than 25 feet to top of fixture.

e.

Maximum overall height for pedestrian area fixtures must be no more than 12 feet to top of fixture.

(6)

Paving, grading and drainage plans and details shall contain the following (as applicable):

a.

Provide preliminary grading for the site including high points along centerline of drive aisles and direction of flow.

b.

All drainage pipes must be shown. Indicate material and preliminary sizes for the pipes.

c.

The finished floor elevation for all buildings must be shown.

d.

Dimensions of all typical parking spaces, drive lanes, sidewalks, landscape islands shall be shown. Handicap parking spaces shall be delineated and ramps shall be shown on the site plan per latest Florida Department of Transportation (FDOT) index. Typical parking stall detail to be consistent with latest FDOT index.

e.

Typical curb locations shall be shown and type of curb shall be shown.

(7)

Water and sewer utilities shall contain the following (as applicable):

a.

Size and material of existing water and sewer system shall be delineated.

b.

Two tie-in points for water system, not along the same main, if possible, is required for new projects.

c.

New water and sewer easements. Water meter, the first sewer clean out and fire hydrant must be within the easement. Label and dimension utility easement for all water, sewer and reuse systems (if any).

(8)

Fire protection plans during construction, after construction shall be provided.

(9)

All proposals for new construction and amended construction plans will be reviewed by the town manager for a determination of whether a traffic impact analysis is needed, and if so, what the scope of impact analysis would be appropriate for the proposal. A determination as to the need for the traffic impact study will be based on project location, amount of traffic generated, character of the use proposed, and other factors relevant to requiring a traffic impact study. If a traffic impact study is deemed to be required, then the site plan applicant shall meet with the town manager, or said manager's designee, to develop the specific criteria and methodology that shall be required for the analysis. Off-site traffic improvements may be required as determined by the town.

(10)

All site plan submittals for projects specified in subsection (c) of this section shall have drawings prepared by one or more of the following design professionals, as appropriate:

a.

A planner who is a member of the American Institute of Certified Planners (AICP);

b.

A landscape architect registered by the state (RLA);

c.

An architect registered by the state (RA);

d.

A civil engineer registered by the state (PE);

e.

A land surveyor and mapper registered by the state. All surveys and site plans, including design data, calculations, and analysis, shall be certified to and for the reliance of the town by an AICP planner or a state licensed engineer, architect, landscape architect, and mapper and surveyor, according to their professional licensed discipline. No certification shall be older than 180 days prior to the date of application for site plan approval. All surveys and site plans must be current, meaning that the survey or site plan is no older than 180 days prior to site plan or site plan amendment application (or brought up to date) and depicts current conditions on the subject property. Surveys shall be prepared in accordance with the minimum technical standards of F.S. § 472.027 and F.A.C. ch. 5J-17.051, as amended or revised from time to time.

(d)

The zoning and planning board shall not approve such plan, unless it finds that such site plan conforms to all applicable provisions of this code, that adequate off-street parking and loading facilities are provided for owners, tenants, visitors, and employees, and that adequate protection and separation are provided for contiguous and nearby residential property.

(e)

Modification of site plan. Any change in use of buildings, structures, land or water, or institution of new uses, or alteration of or addition to buildings or structures shall be in accordance with a new or modified site plan conforming and approved pursuant to this section.

(f)

Approval; time limit. The site plan approval shall terminate 540 days (18 months) thereafter if construction has not been started. Two extensions of up to 180 days (six months) each may be made by the zoning and planning board at its discretion for good cause shown, such as, but not limited to, delays in obtaining development permits from other governmental agencies or project financing delays.

(Code 1962, § 28-98A; Code 1993, § 17-129; Ord. No. 142, 10-3-1972; Ord. No. 217, § 1, 10-18-1977; Ord. No. 89-11 2, 4-18-1989; Ord. No. 07-03, § 1, 12-19-2006; Ord. No. 2019-12, § 2, 11-13-2019)

There is created a zoning and planning board consisting of five members and two alternate members to be appointed by the town council, and a nonvoting member appointed by the school board. To the extent reasonably possible the school board shall seek to appoint a town resident as the school board's representative. The alternates shall be designated as alternate number 1 and alternate number 2. Alternate number 1 shall have been on the board in continuous, uninterrupted service for a longer period of time than alternate number 2. Alternate number 2 shall automatically become alternate number 1, if alternate number 1 is no longer a board member or is appointed to a non-alternate position on the board. In any meeting when an alternate is present, the alternate may participate in discussion, but no alternate shall make or second motions or vote, unless the alternate has been designated to participate as a fourth or fifth member of the board at a meeting. When one alternate is needed to have a board of five members at any meeting, alternate number 1 if participating in the meeting shall always be seated before alternate number 2 as a voting member of the board.

(Code 1962, § 28-20; Code 1993, § 17-30; Ord. No. 142, 10-3-1972; Ord. No. 154, § 1, 3-19-1974; Ord. No. 201, § 1, 8-17-1976; Ord. No. 82-301, § 4, 12-15-1981; Ord. No. 03-03, § 1, 3-18-2003)

(a)

The zoning and planning board shall elect from among its membership a chairperson and a vice-chairperson. Said election shall be by a majority vote of the members present and voting in said election, which election shall be held at the board's first meeting in January of each year, or as soon thereafter as may be reasonably possible. The council shall provide a secretary. The board may adopt and amend its rules of procedures, subject to the approval of the town council. The town council shall furnish the board with the supplies and personnel it may need.

(b)

Voting is restricted to the five members and the alternate members if they are functioning in a regular member's stead. A quorum will be determined from among the voting members.

(Code 1962, § 28-21; Code 1993, § 17-31; Ord. No. 142, 10-3-1972; Ord. No. 201, § 1, 8-17-1976; Ord. No. 89-5, § 1, 1-17-1989; Ord. No. 90-5, § 1, 1-16-1990; Ord. No. 03-03, § 2, 3-18-2003)

All meetings of the zoning and planning board shall be open to the public and shall be held at the town hall. The zoning and planning board shall meet to hold hearings at the call of the chairperson.

(Code 1962, § 28-22; Code 1993, § 17-32; Ord. No. 142, 10-3-1972)

The secretary of the board shall keep minutes of the meetings of the board, showing particularly the action taken on each question considered. All minutes shall be filed with the town clerk and shall be open to public inspection.

(Code 1962, § 28-23; Code 1993, § 17-33; Ord. No. 142, 10-3-1972)

The zoning and planning board shall have the powers and duties as prescribed and provided in this division, and in addition thereto, shall have such other powers and duties as are provided and prescribed by the state statutes.

(Code 1962, § 28-24; Code 1993, § 17-34; Ord. No. 142, 10-3-1972)

Appeals from decisions of the zoning and planning board shall be taken to the board of adjustment, provided such appeal is filed with the town clerk in writing within ten days of the zoning board's decision.

(Code 1962, § 28-25; Code 1993, § 17-35; Ord. No. 142, 10-3-1972; Ord. No. 85-16, § 2, 6-18-1985; Ord. No. 85-18, § 2, 8-20-1985)

The zoning and planning board, in accordance with the Community Planning Act (F.S. § 163.2511 et seq.), shall monitor and oversee the effectiveness and status of the comprehensive plan, and recommend to the town council such changes in the comprehensive plan as from time to time may be required.

(Code 1993, § 17-36; Ord. No. 82-301, § 5, 12-15-1981)

The zoning and planning board shall:

(1)

Make a continuing study of the growth of the town, the zoning problems, and the zoning district boundaries and uses; and make recommendations to the town council relative thereto;

(2)

Make recommendations to the town council as to future planning and growth of the town, giving due regard to all methods available for the development of the town; and

(3)

Conduct a periodic and systematic review of the need for, and the benefits derived from various portions of the land development code. Upon completion of a review of a particular portion of the land development code, the zoning and planning board shall recommend to the town council elimination, continuation, or amendment of said portion of the land development, stating with specificity reasons for such recommendation. In determining what action to take with regard to its recommendation to the town council, the board shall consider the following:

a.

Would the absence of the ordinance or regulation endanger or harm the public health, welfare, economic order, aesthetics, safety, or public interest?

b.

With regard to the ordinance or regulation, is there a reasonable relationship between the exercise of the police power of the town and the protection of the public health, welfare, economic order, aesthetics, safety, or public interest?

c.

Is there a less restrictive method of regulation available which would adequately protect the public?

d.

Does the ordinance or regulation have the effect, directly or indirectly, of increasing the costs of any goods or services for the public, and if so, to what degree?

e.

Is the increase in cost, as a result of the ordinance or regulation, more harmful to the public than the harm that could result from the absence of the regulation?

f.

Was the ordinance or regulation established to resolve a problem or undertake a new program, and if so, has the problem been resolved, or is the new program underway?

g.

What has been the accomplishments or effects to date of the ordinance or regulation?

h.

Is the ordinance or regulation legal?

i.

Is the ordinance or regulation consistent with the currently effective comprehensive plan?

(Code 1993, § 17-37; Ord. No. 82-301, § 6, 12-15-1981; Ord. No. 98-5, § 1, 3-17-1998)

(a)

There is created a board of adjustment consisting of five regular members and two alternate members appointed by the town council. The alternates will have a voice but not a vote in all board of adjustment deliberations, unless one or more regular members are absent, in which case the alternates are authorized to vote in accordance with their designation as alternate number one and alternate number two in that order. Alternate number 1 shall have been on the board in continuous, uninterrupted service for a longer period of time than alternate number 2. Alternate number 2 shall automatically become alternate number 1, if alternate number 1 is no longer a board member or is appointed to a non-alternate position on the board. In any meeting when an alternate is present, the alternate may participate in discussion, but no alternate shall make or second motions or vote, unless the alternate has been designated to participate as a fourth or fifth member of the board at a meeting. When one alternate is needed to have a board of five members at any meeting, alternate number 1, if participating in the meeting, shall always be seated before alternate number 2 as a voting member of the board.

(b)

Members of the board shall hold office for one year.

(Code 1962, § 28-31; Code 1993, § 17-46; Ord. No. 142, 10-3-1972; Ord. No. 158, § 2, 3-19-1974; Ord. No. 201, § 1, 8-17-1976; Ord. No. 90-3, § 1, 1-16-1990)

The board of adjustment shall elect from among its membership a chairperson and a vice-chairperson. Said election shall be by a majority vote of the members present and voting in said election, which election shall be held at the board's first meeting in January of each year, or as soon thereafter as may be reasonably possible. The council shall provide a secretary. The board may adopt and amend its rules of procedures, subject to the approval of the town council. The town council shall furnish the board with the supplies and personnel it may need.

(Code 1962, § 28-32; Code 1993, § 17-47; Ord. No. 142, 10-3-1972; Ord. No. 201, § 1, 8-17-1976; Ord. No. 89-6, § 1, 1-17-1989; Ord. No. 90-4, § 1, 1-16-1990)

The meetings of the board shall be held at the call of its chairperson or at such other times as the board may determine. All meetings shall be open to the public.

(Code 1962, § 28-32; Code 1993, § 17-48; Ord. No. 142, 10-3-1972)

The secretary of the board shall keep minutes of its showing particularly the action taken on each question considered. All minutes shall be filed with the town clerk and shall be open to public inspection.

(Code 1962, § 28-34; Code 1993, § 17-49; Ord. No. 142, 10-3-1972)

The board of adjustment shall have the following powers and duties:

(1)

As otherwise provided in this division, chapter 103, and any of the minimum building codes adopted in chapter 103, including, but not limited to, the state building code, state building code, plumbing, state building code, fuel gas and state building code, mechanical.

(2)

To grant variances and exceptions, under the provisions of this division, chapter 103, and any of the minimum building codes adopted in chapter 103, including, but not limited to, the state building code, state building code, plumbing, state building code, fuel gas and state building code, mechanical.

(3)

To hear and decide appeals from final decisions of the building official as provided in chapter 103 and any of the minimum building codes adopted in chapter 103, including, but not limited to, the state building code, state building code, plumbing, state building code, fuel gas and state building code, mechanical or the zoning and planning board.

(4)

To make determinations as to the exact location of the boundaries of zoning districts in cases of uncertainty with respect thereto.

(5)

To determine the exact meaning, intent and purpose of the provisions of this division upon written application by any person for such determination.

(6)

To hear and decide appeals from final decisions of the town manager with regard to color code matters, as set forth in article VIII, regarding the color code in chapter 24.

(Code 1962, § 28-35; Code 1993, § 17-50; Ord. No. 142, 10-3-1972; Ord. No. 96-1, § 12, 10-17-1995; Ord. No. 97-6, § 3, 5-6-1997; Ord. No. 12-02, § 14, 11-21-2011)

(a)

Appeals from the final decisions of the building official (other than appeals from decisions made pursuant to the state building code, state building code, plumbing, state building code, fuel gas, or state building code, mechanical), or the zoning and planning board may be taken to the board of adjustment, provided the appeal is filed with the town clerk in writing within ten days of the building official's or the zoning board's decisions, under the following conditions:

(1)

By any person aggrieved or by any department of the town affected by any final decision of the building official or zoning board.

(2)

All applications for appeal shall be in writing.

(3)

An appeal stays all proceedings in furtherance of the action appealed from, unless the building official or zoning board from which the appeal is taken certifies to the board that by reason of facts stated in the certificate, a stay would cause imminent peril to life or property, in which case proceedings shall not be stayed except upon a restraining order granted by the board of adjustment or by a court of record.

(4)

Each application for appeal shall specify the section or subsection of this division involved, shall set forth the exact interpretation claimed with respect thereto, the use for which a special permit is sought, or the details of the variance applied for and the grounds upon which it is claimed that the variance should be granted, as the case may be.

(5)

The building official or zoning board from which the appeal is taken, upon notification by the board of adjustment, shall forthwith transmit to the board of adjustment all papers constituting the record upon which the action appealed from was taken.

(6)

The board of adjustment shall cause to be published in a newspaper of general circulation within the town, at least 15 days prior to the hearing of an appeal, notice of such appeal.

(7)

At the hearing on the appeal, the parties in interest may appear in person or be represented by counsel or by an agent.

(8)

The board of adjustment shall decide an appeal within 30 days after the hearing thereon.

(9)

In deciding on appeals from the decisions of the zoning and planning board or the building official, the board of adjustment may, by a majority vote of its members present at the hearing, affirm the decision appealed from, or, by the concurring votes of four members, may reverse, wholly or in part, or may modify the decisions appealed from, and may make such final decision as the circumstances require, with all the powers of the zoning and planning board or building official from which the appeal is taken. At any meeting where an appeal is heard a quorum shall consist of four members.

(b)

Appeals from final decisions of the building official pursuant to the state building code, state building code, plumbing, state building code, fuel gas, and state building code, mechanical, shall be made as set forth in the aforesaid code, as modified in chapter 103.

(Code 1962, § 28-36; Code 1993, § 17-51; Ord. No. 142, 10-3-1972; Ord. No. 83-330, § 1,7-19-1983; Ord. No. 85-18, § 3, 8-20-1985; Ord. No. 96-1, § 13, 10-17-1995; Ord. No. 12-02, § 15, 11-21-2011)

(a)

The board of adjustment may grant variances in specific cases to vary or alter the strict application of any of the requirements of this division, whereby such application of a particular requirement would result in a practical difficulty or an unnecessary hardship that would deprive the owner of the reasonable use of the land or building involved.

(b)

To obtain a variance the applicant must demonstrate to the board of adjustment that:

(1)

A practical difficulty or an unnecessary hardship is caused by the literal application and enforcement of the zoning code provision from which a variance is sought;

(2)

The granting of the variance will not authorize a use prohibited, or result in a use variance, in the district in which the property is located;

(3)

The preponderance of evidence presented at the variance hearing does not demonstrate that the granting of the variance will seriously impair the use of adjacent property, or significantly reduce the value of adjacent property, regardless of the zoning district in which the adjacent property is located;

(4)

The need for the variance is made necessary by the unique character of the property;

(5)

The need for the variance is not caused in any way by the owner or occupant of the property upon which the variance is sought;

(6)

That the request for a variance is not solely based on an economic disadvantage to the owner or occupant of the property upon which the variance is sought, because an economic disadvantage to an applicant does not constitute a hardship or practical difficulty sufficient to warrant the granting of a variance; and

(7)

That the request for a variance is not solely based on a need or desire of the owner or occupant of the property upon which the variance is sought to be obtained to gain an economic benefit, because an economic advantage to an applicant does not constitute a hardship or practical difficulty sufficient to warrant the granting of a variance.

(c)

In determining whether to grant a variance the board of adjustment may consider the goals, objectives and policies of the comprehensive plan. In granting a variance, the board shall attempt to grant the minimum variance necessary to make possible the applicant's requested use or development plan.

(d)

In granting a variance, the board of adjustment may prescribe any conditions that it deems necessary or desirable in the furtherance of the purpose of this division.

(e)

If a variance is granted with the effect being that a building permit is required, the building permit must be obtained within 24 months of the approval date, after that time, the variance is void. If a permit is issued and that permit expires then the variance is also terminated, or expires, with the permit.

(Code 1993, § 17-141; Ord. No. 11-13, § 3, 7-27-2011; Ord. No. 17-08, § 2, 4-12-2017)

Any person desiring a variance shall file with the town clerk, who shall provide a true copy of the published legal notice concerning said application to interested parties pursuant to section 113-119, a written application. Each application for variance shall specify the section and subsection of the division of this code involved, shall set forth the exact variance desired with respect thereto, shall furnish a site plan on which the variance is to occur, shall explicitly define the details of the variance involved, and shall state the basis on which the variance is requested.

(Code 1962, § 28-103; Code 1993, § 17-142; Ord. No. 142, 10-3-1972; Ord. No. 84-345, § 1, 4-17-1984; Ord. No. 88-6, § 1, 5-24-1988)

(a)

Upon receipt of the application for a variance, the town clerk shall cause a notice of the application and the time and place of the hearing thereon to be published, at least 15 days and not more than 30 days prior to such hearing, in a newspaper of general circulation in the town, and shall post a copy in the town hall. The town clerk shall mail a copy of such notice by first class mail to those persons owning property within the radius of 200 feet of the property affected by the application.

(b)

The notice shall state that written comments regarding the proposed variance may be filed with the town clerk prior to the public hearing or interested parties may appear at the public hearing.

(Code 1962, § 28-104; Code 1993, § 17-143; Ord. No. 142, 10-3-1972; Ord. No. 03-01, § 1, 1-21-2003)

Prior to the public hearing, the town clerk shall forward to the board of adjustment the application and statement of consent, together with any written comments filed with the clerk.

(Code 1962, § 28-105; Code 1993, § 17-144; Ord. No. 142, 10-3-1972; Ord. No. 03-01, § 2, 1-21-2003)

At the public hearing, the board of adjustment shall consider the application and any written comments, hear any person desiring to be heard, and authorize or refuse to authorize the issuance of a permit for a variance in accordance with the application as it shall deem advisable in the promotion of substantial justice and the preservation of the public health, safety, morals and general welfare. The hearing shall be held pursuant to the provisions in section 113-185(d).

(Code 1962, § 28-106; Code 1993, § 17-145; Ord. No. 142, 10-3-1972; Ord. No. 03-01, § 3, 1-21-2003; Ord. No. 2019-11, § 11, 11-13-2019)

No building or land shall be used in whole or in part, and no building or part thereof shall be erected, moved, or altered except for use expressly permitted by and in conformity with the provisions for the district in which it is located.

(Code 1962, § 28-113; Code 1993, § 17-157; Ord. No. 142, 10-3-1972)

(a)

Where, on February 3, 1959, or immediately prior to the amendment of this division, the lawful use of any building, structure, or land that exists is made no longer permissible under the terms of this division as enacted or amended, such use may be continued, so long as it remains otherwise lawful, provided the following conditions are met:

(1)

Unsafe structures. Nothing in this division shall prevent the strengthening or restoring to a safe condition of any portion of a building or structure declared unsafe by proper authority.

(2)

Alterations. A nonconforming building or structure may be altered, improved, or reconstructed provided that such work does not increase its nonconformity.

(3)

Extension. Except as otherwise permitted by this subsection, no nonconforming use may be enlarged, increased, or altered, nor extended to occupy a greater area of land than was occupied on February 3, 1959, or on the effective date of an amendment to this division making the use nonconforming unless the use is changed to a use permitted in the district in which such use is located. A nonconforming use shall not be extended to displace a conforming use, but the extension of a lawful use to any portion of a nonconforming building or structure shall not be deemed the extension of such nonconforming use.

(4)

Changes. No nonconforming building, structure or use shall be changed to another nonconforming use.

(5)

Nonconforming use. No nonconforming use shall be moved in whole or in part to any other portion of the lot or parcel of land occupied by such use on February 3, 1959, or on the effective date of an amendment to this division for the district for which such land is located making such use nonconforming.

(b)

Nonconforming lot.

(1)

When a lot of record containing less than 10,000 square feet of lot area with a lot width of less than 100 feet is located in any zoning district requiring 100 feet of width at the building line and 10,000 square feet of lot area for construction and has not been in common ownership with adjacent property on either side since the time of the enactment in 1953 of the town's 100 foot lot width/10,000 square foot lot area zoning requirements, the town building official may issue a building permit for construction of the single-family residence without first requiring that the property owner seek a variance for the 100 foot lot width/10,000 square foot lot area zoning requirements from the board of adjustment. In such cases the building official is authorized to issue a building permit to an applicant/property owner of the property proposed to be developed; provided, that all of applicable requirements of the town's "land development regulations," as defined by F.S. § 163.3164, have been satisfied. See Suplee v. Town of Indialantic, Case No. 98-05286-CA-X (Fla. 18th Cir.Ct. order granting final judgment Nov. 5, 1998), recorded on Nov. 10, 1998 in Official Records Book 3923, Page 1519, Public Records of Brevard County, Fla.

(2)

To establish that the property owner's less than 100 foot wide lot of record has not been in common ownership with adjacent property since 1953, the building official shall require a title report with copies of all deeds depicting the chain of title from a date prior to 1953 for the property proposed to be developed and for adjacent properties on either side of the property proposed to be developed. The title report shall depict the chain of title for the property proposed to be developed and adjacent properties on either side. The title report chain be certified to and in favor of the town and prepared by a title insurance company/abstractor or an attorney admitted to practice law in the State of Florida. The title report and supporting documentation shall be prepared and submitted to the building official at the cost and expense of the property owner of the property proposed to be developed.

(c)

The building official may require from the property owner of the property proposed to be developed such additional information as may be necessary to verify that the requirements of subsection (a) of this section have been satisfied. The building official may consult with the town attorney with regard to a review of the title report and supporting documentation.

(Code 1962, § 28-114; Code 1993, § 17-158; Ord. No. 142, 10-3-1972; Ord. No. 93-8, § 1, 10-19-1993; Res. No. 00-05, § 1, 12-21-1999)

(a)

Where a lawful structure exists, prior to the effective date of adoption or amendment of this division which makes the structure nonconforming under the terms of this division by reason of restrictions on area, lot coverage, height, yards, or other characteristics of the structure or its location on the lot, such structure may be continued so long as it remains otherwise lawful, subject to the following provisions:

(1)

No such structure may be enlarged or altered in a way which increases its nonconformity. The addition of a floor to any structure which is nonconforming by virtue of the fact that the horizontal plane of any in the structure encroaches into a required yard setback shall not be interpreted to be an enlargement or alteration of said structure in violation of this section, provided that the additional floor is conforming to the zoning regulations.

(2)

Any structure or portion thereof may be altered to decrease its nonconformity.

(3)

Should such structure be moved for any reason for any distance whatever, it shall thereafter conform to the regulations of the district in which it is located after it is moved.

(b)

Structures and lot sizes made illegal as a result of condemnation. In the event that the Florida Department of Transportation (FDOT), the county, or the town condemn private property to acquire road right-of-way, and the condemnation results in the elimination or decrease of the required perimeter landscaping, results in insufficient yard requirements (setbacks), or results in a parcel that does not meet the minimum lot size, such private property shall not become nonconforming and may continue as long as it remains otherwise lawful.

(Code 1993, § 17-159; Ord. No. 93-8, § 2, 10-19-1993; Ord. No. 03-02, § 1, 1-21-2003)

Whenever the boundaries of a district shall be changed so as to transfer an area from one district to another district of a different classification, the provisions of this division shall also apply to any nonconforming uses existing therein.

(Code 1962, § 28-117; Code 1993, § 17-161; Ord. No. 142, 10-3-1972)

A nonconforming use of a building or premises which has been discontinued shall not thereafter be returned to such nonconforming use. A nonconforming use shall be considered discontinued when:

(1)

The intent of the owner to discontinue the use is apparent;

(2)

The characteristic equipment and the furnishings of the nonconforming use have been removed from the premises and have not been replaced by similar equipment within 180 days, unless other facts show an intention to resume the nonconforming use;

(3)

It has been replaced by a conforming use;

(4)

It has been changed to another use under permit from the zoning board.

(Code 1962, § 28-118; Code 1993, § 17-162; Ord. No. 142, 10-3-1972; Ord. No. 93-8, § 4, 10-19-1993; Ord. No. 99-5, § 1, 10-19-1999)

Nothing in this division shall prevent the reconstruction, repairing, rebuilding and continued use of any nonconforming building or structure damaged by fire, collapse, explosion, or Acts of God, wherein the expense of such work does not exceed 50 percent of the assessed valuation of the building or structure at the time such damage occurred.

(Code 1962, § 28-120; Code 1993, § 17-164; Ord. No. 142, 10-3-1972; Ord. No. 93-8, § 6, 10-19-1993)

Nothing in this division shall prevent the reconstruction, repairing or rebuilding of a nonconforming building, structure, or part thereof, rendered necessary by wear and tear or deterioration, provided that such reconstruction, repair or rebuilding does not increase its nonconformity and the cost of such work shall not exceed 50 percent of the assessed valuation of such building or structure at the time such work is done, nor prevent compliance with the provisions of the building code relative to the maintenance of buildings or structures.

(Code 1962, § 28-121; Code 1993, § 17-165; Ord. No. 142, 10-3-1972; Ord. No. 93-8, § 6, 10-19-1993)