8.1.A.

Purpose and intent. The intent of this article is to eliminate or reduce situations in which land use or components of land use are inconsistent with the Comprehensive Plan and Land Development Regulations. This article shall also address lots and structures that may be or have been made nonconforming by an eminent domain action. Nonconformities may be allowed to continue in some circumstances but only subject to the conditions set forth in this article.

8.1.B.

Applicability. The provisions of this article shall apply to all land within the unincorporated areas of Martin County.

8.1.C.

Glossary. In addition to any other definitions of these Land Development Regulations that might apply, for the purposes of this article, the following terms shall have the meanings as set forth below.

Acquiring authority means the governmental entity proposing to acquire private property for public transportation or other purpose, pursuant to eminent domain action. Acquiring authorities include, but are not limited to, Martin County ("County"), and the Florida Department of Transportation ("FDOT").

Change of use means a change from a category of land use identified in article 3, Zoning Districts, or any zoning ordinance of Martin County, to any other category of land use or any primary activity that substantially differs from the previous primary activity of a building or land affecting the demand for parking, the drainage characteristics of the lot, internal or external traffic patterns, landscaping requirements, or nuisance factors, such as, but not limited to, increased traffic and noise.

Cure plan means a site plan submitted by an acquiring authority or a private property owner for a site subject to an eminent domain action. The plan shall show proposed changes to structures or other physical features of the remainder parcel necessary to make the remainder parcel as compliant with the applicable Land Development Regulations as feasible.

Eminent domain action means a series of actions taken by an acquiring authority to obtain title to all or some part of privately held real property for a public use. This term shall include voluntary and involuntary conveyance under the threat of condemnation, taking or expropriation.

Eminent domain waiver means authorization from Martin County for the continued use and enjoyment of a remainder parcel subsequent to an eminent domain action. An eminent domain waiver shall not be issued where the remainder parcel and existing structures conform with the applicable zoning district.

Nonconforming lot means a legally created lot which conformed to the zoning requirements at the time of the lot's creation but which does not comply with applicable district regulations of these Land Development Regulations for width and/or area.

Nonconforming structure means a lawfully constructed building or structure, the size, dimensions, or placement of which does not conform to the current Land Development Regulations.

Nonconforming use means any land use which, at its commencement, was lawful but which fails to meet the requirements of the current Land Development Regulations.

Parent tract means the parcel of land that existed prior to an acquiring authority obtaining some portion of the parcel through eminent domain action.

Remainder parcel means that portion of the parent tract remaining in private ownership following eminent domain action. The remainder parcel may be vacant, or improved, just as the parent tract may be vacant or improved.

Substantial improvement means any repair, reconstruction, extension or other improvement to a building or structure, including such work conducted over a period of time, the cost of which equals or exceeds 50 percent of the assessed value of such building or structure either before the improvement is commenced or, if the property has been damaged and is being restored, before the damage occurred. For purposes of this definition, "assessed value" shall mean the assessed value of a structure for the current year as determined by the Martin County Property Appraiser.

8.1.D.

Illegal uses. Nothing in this article shall be interpreted as an authorization to establish, continue, or reestablish any illegal utilization of land. An illegal utilization of land is one which was in violation of any ordinance of Martin County in effect at the time that such utilization was commenced or which subsequently violates a Martin County ordinance.

8.1.E.

Burden of proof. In order to be eligible to continue a nonconforming use or nonconforming structure pursuant to this article, the burden of proof shall be on the property owner to provide evidence that the nonconforming use or nonconforming structure was lawfully established and for proving the actual nature and extent of the use or structure as it existed prior to becoming nonconforming. Proof typically shall include such documentation which independently verifies that such use or structure was lawfully established prior to the adoption of the Comprehensive Plan, the plan provision or date specified in the plan provision, or the land development regulation in question. The casual, intermittent or temporary use of land shall not be sufficient to allow the continuation of a nonconforming use.

(Ord. No. 566, pt. 1, § 8.01, 1-11-2000; Ord. No. 818, pt. 1, 3-17-2009)

Cross reference— Rules of interpretation, § 1.5.

Unless otherwise provided for elsewhere in the CGMP or in these Land Development Regulations, nonconforming uses shall continue only as follows:

8.2.A. Ordinary repair and maintenance. Ordinary repair and maintenance may be performed on the principal and accessory structures associated with a nonconforming use provided that such work does not constitute a substantial improvement.

8.2.B. Extensions. The principal and accessory structures associated with a nonconforming use shall not be enlarged either vertically or horizontally nor shall a nonconforming use be extended into adjoining lots, structures or lands on the same lot which were not lawfully developed and approved for such use.

8.2.C. Intensification of use. A nonconforming use shall not be materially increased in intensity. Actions which materially increase the intensity of use include, but are not limited to:

1.

Converting an accessory of a nonconforming use to a primary use;

2.

Adding or enlarging storage facilities, such as fuel tanks, portable storage containers, or modular office units;

3.

Converting an attic or crawl space to habitable floor area;

4.

Adding roof decks;

5.

Adding outdoor uses, such as restaurant seating or retail sales;

6.

Creating additional parking areas, whether paved or unpaved.

8.2.D. Relocation. A principal or accessory structure associated with a nonconforming use shall not be moved unless the such structure is converted to a conforming use.

8.2.E. Change of use. A nonconforming use shall not undergo a change of use unless the new use is a conforming use.

8.2.F. Substantial improvement. No building permit or other development order shall be granted for repairs or reconstruction which would result in the substantial improvement of any principal structure associated with a nonconforming use.

8.2.G. Abandonment. Any discontinuation of a nonconforming use for a period of 180 consecutive days, or a total of 180 days in any 12-month period, shall be deemed to be an abandonment of the right to continue a nonconforming use. Where the discontinuation of use is the result of government action, such periods shall not be counted. Evidence of abandonment of a use may be, but is not limited to, discontinuance of the use, failure to maintain required occupational or other licenses required by any government entity, the discontinuation of utility services, or removal of machinery or equipment associated with the use.

8.2.H. Occupation of additional lands. A nonconforming use shall not be extended through the occupation of additional lands. A nonconforming use shall not be extended into adjoining lots, or into previously unused areas of the same lot, even if such activity or expansion does not normally require development approval. This provision shall prohibit, for example, the use of adjoining lots or previously unused portions of a lot for accessory parking, storage, or display of merchandise or equipment associated with a nonconforming use.

8.2.I. Nonconforming uses on parcels with more than one principal use. When a parcel of land contains more than one principal use, such as a multiple-unit commercial center or industrial park, and the parcel has both conforming and nonconforming uses, the entire parcel of land shall be considered to have a nonconforming use; however, this subsection I shall not apply where the individual units of a development are organized as a condominium pursuant to F.S. ch. 718 or as a cooperative, pursuant to F.S. ch. 719.

(Ord. No. 566, pt. 1, § 8.02, 1-11-2000; Ord. No. 818, pt. 2, 3-17-2009)

Unless otherwise provided for elsewhere in the CGMP or in these Land Development Regulations, nonconforming structures which are used in a manner conforming to the provisions of these Land Development Regulations may be enlarged vertically or horizontally, reconstructed or redeveloped provided that:

8.3.A. Nonconforming structures which are nonconforming only as to the wetland buffer requirements of article 4, division 1 or 2, may be enlarged vertically or horizontally, reconstructed or redeveloped, provided that such enlargement, reconstruction or redevelopment shall not result in further encroachment into the buffer or buffer protection area required by article 4, division 1 or 2.

8.3.B. Portions of nonconforming structures which infringe upon locational criteria other than the wetland buffer requirements of article 4, division 1 or 2, such as but not limited to zoning setbacks, shall be governed as follows:

1.

Nonconforming accessory structures may be reconstructed or redeveloped only within their existing horizontal footprint but shall not be enlarged vertically.

2.

Nonconforming primary structures established prior to March 29, 2002 (the effective date of the ordinance adopting article 3, Zoning Districts) may be reconstructed or redeveloped within their existing horizontal footprint. Nonconforming primary structures established prior to March 29, 2002, may also be vertically enlarged, notwithstanding any building setback criteria to the contrary contained in the current zoning regulations.

(Ord. No. 566, pt. 1, § 8.03, 1-11-2000; Ord. No. 578, pt. 1, 5-26-2000; Ord. No. 633, pt. 2, 9-2-2003; Ord. No. 818, pt. 3, 3-17-2009)

8.4.A.

Mobile homes. Replacement of existing mobile homes in existing mobile home plats and sites of record, as of February 20, 1990, shall be permitted and shall not be deemed inconsistent with the CGMP.

8.4.B.

Mining operations. Even if such use is not allowed as a permitted or conditional use within the current zoning district, otherwise lawfully established mining operations shall be allowed to continue such operations as necessary to complete the extraction of resources as contemplated under previously approved development orders, provided that such operations are conducted in conformance with all other requirements of the CGMP and the Land Development Regulations, including article 4, division 8 and any special conditions for mining provided in article 3.

Cross reference— Excavation, mining and filling, § 4.341 et seq.

8.4.C.

Nonconforming lots.

1.

Notwithstanding the list of permitted and/or conditional uses set forth for a particular zoning district, the use of a nonconforming lot located in a district in which residential dwellings are permitted shall be restricted to single-family use together with customary accessory uses. This provision is not intended to waive or modify any building setback or other requirements of the Land Development Regulations.

2.

A nonconforming lot located in a district in which residential dwellings are not permitted may be developed despite the failure to meet the width and area requirements set forth in the zoning district; however, no use shall be established where the development standards for that particular use require a larger lot than is required for other uses in the zoning district. This provision is not intended to waive or modify any building setback or other requirements of the Land Development Regulations.

3.

When two or more contiguous unimproved, vacant, nonconforming lots are in single ownership as of the date upon which such lots became nonconforming due to changes in the zoning regulations, such lots must be combined to make them conforming whenever possible.

4.

When a remainder parcel has resulted or will result from an eminent domain action for a public purpose, then section 3.15.C.2., Land Development Regulations, may be applicable to the remainder parcel having a zoning district listed in section 3.10., Land Development Regulations.

8.4.D.

Limited Commercial future land use designation. Notwithstanding anything to the contrary in article 3, Zoning Districts, any residential dwelling unit which was lawfully established prior to February 20, 1990, and which lies within an area designated Limited Commercial on the Future Land Use Map shall be considered a permitted use.

8.4.E.

Commercial Office/Residential future land use designation. Notwithstanding anything to the contrary in article 3, Zoning Districts, on any parcel designated Commercial Office/Residential on the Future Land Use Map of the Comprehensive Growth Management Plan, any commercial and business use which was lawfully established prior to March 29, 2002, and which is among the commercial and business uses that are shown as permitted within the LC zoning district as set forth in section 3.11, shall be considered a permitted use. For example, a general restaurant use which was lawfully established in 1978 shall be considered a conforming use on any parcel designated Commercial Office/Residential on the Future Land Use Map, despite the fact that general restaurant is not among the permitted uses within the COR-1 or COR-2 districts or where such restaurant use is not among the permitted uses set forth in the parcel's current zoning district.

(Ord. No. 566, pt. 1, § 8.04, 1-11-2000; Ord. No. 578, pt. 1, 5-26-2000; Ord. No. 623, pt. 2, 11-5-2002; Ord. No. 818, pt. 4, 3-17-2009)

An eminent domain waiver is intended to provide property owners a viable and fair alternative to the adverse impact on their property, as a result of the acquisition process. It allows the continued use of the remainder parcel in a manner similar to its pre-acquisition condition. Waivers provided herein can be obtained for nonconforming lots and structures. Waivers cannot be granted for nonconforming uses. Sections 8.5 and 8.6 shall be applicable only after the Board of County Commissioners adopts a resolution approving the use of eminent domain waivers for specific public projects.

8.5.A.

Applicability.

1.

[Vacant parcels.] Vacant parcels, whether conforming or nonconforming lots, shall be eligible for an eminent domain waiver from minimum lot size requirements, pursuant to section 8.5., Land Development Regulations.

2.

Developed parcels. Where an eminent domain action reduces the lot size and creates a nonconforming remainder parcel but does not require the relocation of site features, said parcel shall be eligible for an eminent domain waiver from Land Development Regulations such as but not limited to minimum lot size, and building coverage requirements, pursuant to section 8.5., Land Development Regulations.

3.

Developed parcels. Where an eminent domain action requires the relocation of site features such as, but not limited to, buildings, parking spaces, landscaping, stormwater facilities, dumpsters, light poles and signs, such a parcel shall be eligible for an eminent domain waiver, pursuant to section 8.5., Land Development Regulations.

8.5.B.

The acquiring authority and/or the property owner are each hereby granted the authority to apply for a waiver from the Land Development Regulations on a remainder parcel that has resulted or will result from an eminent domain action. The application may be made prior to or after the acquiring authority obtaining title to some part of the parent tract.

8.5.C.

Procedure to apply for an eminent domain waiver.

1.

Either the acquiring authority or the property owner shall file an eminent domain waiver application with the County Administrator or designee. The applicable fee, established by resolution, shall be submitted with the application in addition to the following documents:

a.

An as-built drawing of the parent tract and a legal description of the portion to be acquired and the remainder parcel shall be submitted for those circumstances described in section 8.5.A. 1, 2, and 3 above. The as-built drawing must show the parent tract and the remainder parcel including, but not limited to, buildings, parking, landscaping, stormwater facilities, topographic data and adjacent right-of-way.

b.

A site plan (a cure plan as defined herein) showing the parent tract and the remainder parcel with the proposed changes to the site including, but not limited to, buildings, parking, landscaping, stormwater facilities, topographic data and adjacent right-of-way. A cure plan shall be required only for those parcels described in section 8.5.A. 3 above.

2.

If an application for a waiver is submitted by an acquiring authority, the property owner shall be notified via certified mail (return receipt requested) by the County Administrator or designee within 10 days of the application submittal date. Likewise if the property owner applies for a waiver the acquiring authority shall be notified via certified mail (return receipt requested) by the County Administrator or designee within 10 days of the application submittal date.

3.

The Board of Zoning Adjustment (BOZA) shall consider the request for an eminent domain waiver at a public hearing advertised pursuant to the requirements of section 10.6., Notice Requirements, Land Development Regulations. The public hearing may be continued by the BOZA to a fixed date, time and place. After the conclusion of the public hearing, the BOZA shall approve, approve with modifications or deny the request for an eminent domain waiver by resolution which shall constitute the final action of the BOZA. The property owner shall not be required to implement the waiver or cure plan approved by BOZA.

8.5.D.

Standards for issuance of eminent domain waivers.

1.

If an existing lot, parcel or structure becomes nonconforming (or an existing nonconformity becomes less conforming) as a result of a governmental acquisition, a waiver may be granted provided a determination is made that:

a.

The requested waiver will not adversely affect safety, aesthetic or environmental conditions of neighboring properties; and

b.

The requested waiver shall not adversely affect the safety of pedestrians or operations of motor vehicles; and

c.

The requested waiver will not encourage or promote the continuation of existing uses of the property which have been or will be rendered unfeasible or impractical due to the impacts of the taking and/or construction of the roadway or other facility including, but not limited to, aesthetic, visual noise, dust, vibration safety, land use compatibility, environmental or other impacts.

d.

The remainder parcel shown on the as-built drawing and the cure plan shall be the site on which compliance with the Land Development Regulations and the Comprehensive Growth Management Plan must be shown. All calculations shall be based upon the acreage of the remainder parcel.

2.

No eminent domain waiver shall be issued for a remainder parcel that cannot comply with the minimum requirements of the Comprehensive Growth Management Plan.

(Ord. No. 818, pt. 5, 3-17-2009)

8.6.A.

Where a waiver is issued pursuant to section 8.5., Land Development Regulations, the waiver shall become effective and the remainder parcel shall be considered compliant to the degree feasible after an acquiring authority takes possession of real property subject to an eminent domain action.

8.6.B.

Where a property owner accepts a waiver on a vacant parcel or where no cure plan was necessary, the waiver shall remain valid and applicable to the remainder parcel indefinitely. However, future site plan and building permit approvals shall comply with all provisions in the Land Development Regulations except those listed in the waiver.

8.6.C.

Where a private property owner accepts a waiver based upon a cure plan, the physical changes to the remainder parcel, specified in the cure plan, shall occur within 365 days from the date the acquiring authority takes title to some part of the parent tract. Future site plan and building permit approvals shall comply with all provisions in the Land Development Regulations except, those listed in the waiver. Within the 365-day time period, described above, the property owner may apply to the County Administrator for a one-time extension of up to 365 additional days. Further extensions may be granted by the County Administrator in the event that compensation from the condemning authority has not been resolved within the first two 365-day periods.

8.6.D.

The provisions of section 8.5., Land Development Regulations shall not be interpreted to allow for the continued existence of building or safety code violations that are determined to be a threat to the public health, safety or welfare.

8.6.E.

The County shall continue to enforce all applicable building and safety codes even though the subject property is part of a pending governmental acquisition.

(Ord. No. 818, pt. 6, 3-17-2009)