In accordance with article XVI, section 2 of the Charter of the City of Indian Harbour Beach, the zoning board of appeals has the jurisdiction to hear and decide administrative appeals when it is alleged by the appellant that there is an error in any order, requirement, decision or determination made by the planning and zoning board or any administrative official in the enforcement of this ordinance and any other ordinance relating to planning, zoning and building codes. For purposes of this section, the following persons shall have the right to apply for such administrative appeals:

(1)

The owners of at least seventy-five (75) per cent of the property affected by the order, requirement, decision or determination which is the subject of the appeal.

(2)

At least seventy-five (75) per cent of the tenants of such property; provided, however, that any tenant bringing such an appeal shall have the owner's consent.

(3)

Any duly authorized agents of such owners as evidenced by a written power of attorney.

(4)

The City Council of the City of Indian Harbour Beach.

(5)

The Planning and Zoning Board of the City of Indian Harbour Beach.

(6)

Any department or agency of the City of Indian Harbour Beach.

Administrative appeals to the zoning board of appeals shall be taken by filing a notice of appeal with the building official no later than twenty (20) days next after the rendition of the order, requirement, decision or determination which is the subject of the appeal. The notice of appeal shall set forth the grounds of the appeal, and may consist of a letter to the building official setting forth the said grounds. The building official shall forthwith transmit to the zoning board of appeals all papers constituting the record upon which the order, requirement, decision or determination which is the subject of the appeal was taken. The zoning board of appeals shall fix the time and date for hearing of the appeal and shall give notice to both the public at large and the appellant of the date and time of such appeal at least fifteen (15) days in advance of the hearing. Any party may appear at the hearing in person or be represented by an agent or attorney.

As set forth in article XVI, section 2(c) of the Charter of the City of Indian Harbour Beach, the affirmative vote of four (4) members of the zoning board of appeals shall be necessary in order for the board to decide in favor of the appellant on any administrative appeal.

(A)

As set forth in article XVI, section 2, of the Charter of the City of Indian Harbour Beach, the zoning board of appeals has the power to authorize a variance from the terms of this section, where, as a result of special conditions, a literal enforcement of the provisions of this section will result in unnecessary hardship. For purposes of this section, a variance shall be authorized and granted by the zoning board of appeals only for height, area, size of structure, size of yards, and size of open spaces.

A variance shall be granted only if the zoning board of appeals finds in favor of the applicant that all of the following requirements are met:

(1)

The request is based on a hardship which is unique to the land, building or structure in question, is not applicable to other lands, buildings or structures in the same zoning district, and is not a hardship of a personal nature unrelated to the land, except that a variance request based on handicapped accessibility to land or within a primary structure shall not be deemed a hardship of a personal nature.

(2)

The need for the variance is not created by the action of the applicant himself.

(3)

The requested variance will not allow the establishment or expansion of a use which is otherwise prohibited by this section.

(4)

The request is not based primarily on financial benefit to the applicant.

(5)

The variance applied for is the minimum necessary to relieve the hardship alleged by the applicant.

(B)

A variance shall be requested by making written application to the building official. The application shall provide full information and documentation showing the nature of the hardship which creates the need for the variance, the cause or origin of such hardship, the reasons why the variance is sought, all dimensions and other data necessary to show that the variance being requested is the minimum variance which will relieve the alleged hardship, and any other information relevant to the requirements set forth in subsection (A) of this section.

(C)

All proposed variances shall be submitted to the planning and zoning board for study, and written recommendation prior to consideration of that variance by the zoning board of appeals. As part of its written recommendation, the planning and zoning board shall make specific findings of fact as to whether the application meets each of the requirements set forth in subsection (A) of this section.

(D)

Upon receipt of the recommendation of the planning and zoning board, the zoning board of appeals shall set a date for a public hearing at which all parties in interest shall have an opportunity to be heard. The city clerk shall cause notice of such public hearing to be published one (1) time in a newspaper of general circulation in Brevard County, Florida, at least fifteen (15) days prior to the date of such hearing, and a copy of the notice of hearing shall be posted both on the property for which a variance is sought and at City Hall. All such notices shall state in substance the variance requested, the reason for such request and a legal description of the property. A copy of said notice shall also be sent by certified mail to the applicant for the variance in question.

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

The zoning board of appeals shall consider the recommendation of the planning and zoning board as part of the official record when hearing an application for any variance. Based on the record and the information presented at the public hearing, the zoning board of appeals shall make findings as to whether the application meets each of the requirements set forth in paragraph (A) of this section. An application for a variance shall be denied if the zoning board of appeals finds that the application does not meet each and every one of the criteria.

(E)

In granting any variance, the zoning board of appeals may prescribe appropriate conditions and safeguards with which the applicants shall comply. Violations of such conditions or safeguards when made a part of the terms under which a variance is granted shall be deemed a violation of this ordinance and punishable as provided by this ordinance. Any variance granted by the zoning board of appeals for non-residential real property shall expire and shall be null and void if the construction contemplated by the final site plan is not commenced within one (1) year after the date of approval of the final site plan associated with the variance by the city. Site plan and associated variance extensions may be granted in accordance with section 104-7 of the Land Development Regulations of the city.

Any variance granted by the zoning board of appeals for handicapped accessibility under subsection (A) shall expire and shall be null and void if construction contemplated by such variance is not commenced within six (6) months from the date of approval of the variance. Furthermore, if the property for which a handicapped variance has been granted is transferred within six (6) months from the date of approval of such variance and construction contemplated by such variance has not commenced then such variance shall expire and be null and void.

(F)

Under no circumstances shall the zoning board of appeals grant a variance which would permit or allow a use which is not generally permitted or permitted by conditional land use in the zoning district in question or which increases the maximum lot coverage, building length, building height, or living area beyond that permitted in the applicable zoning district or reduces minimum parking requirements, building separations in multifamily zones, minimum living/floor area, or minimum lot dimensions required in the applicable zoning district.

(G)

As set forth in article XVI, section 2(c) of the Charter of the City of Indian Harbour Beach, the affirmative vote of four (4) members of the zoning board of appeals shall be necessary in order for the board to decide in favor of the applicant on application for a variance.

(Ord. No. 84-8, § 1, 7-10-84; Ord. No. 2009-1, § 1, 6-9-09; Ord. No. 2011-4, § 8, 10-25-11)

Cross reference— Variances from sign ordinances, § 15-4; variances from subdivision requirements, § 17-4.

As provided in article XVI, section 2 of the Charter of the City of Indian Harbour Beach, the zoning board of appeals has the jurisdiction to hear and decide applications for special exceptions to the terms of this ordinance. Such special exceptions shall be expressly limited to those uses expressly designated as special exceptions within each zoning district as set forth in article XII of this ordinance.

All requirements set forth in article XIV of this ordinance for a conditional land use shall apply to the application for and the granting of a special exception by the zoning board of appeals, including, but not limited to, the applicant's burden of proof. In the interpretation of the requirements of the said article XIV, when the same are to be applied to an application for special exception, the term "city council" as it appears in the said article XIV shall be construed to mean "zoning board of appeals" for purposes of this section.

As set forth in article XVI, section 2(c) of the Charter of the City of Indian Harbour Beach, the affirmative vote of four (4) members of the zoning board of appeals shall be necessary in order for the board to decide in favor of the applicant on any application for special exception.