This article provides for the establishment of the hardship relief nonconformities, variances, vested rights and takings.

7.01.01.

Intent.

(1)

Within the districts established by this LDC or amendments which may later be adopted, there exist:

a.

Lots;

b.

Structures;

c.

Uses of land and structures; and

d.

Characteristics of use.

which were lawful before this LDC was passed or amended, but which would be prohibited, regulated, or restricted, under the terms of this LDC or future amendment. It is the intent of this section to permit these nonconformities to continue until they are removed, but not to encourage their survival. It is further the intent of this section that the nonconformities shall not be enlarged upon, expanded, nor extended, nor be used as grounds for adding other structures or uses prohibited elsewhere in the same district.

(2)

Nonconforming uses are declared by this section to be incompatible with permitted uses in the districts involved. A nonconforming use of land, or a nonconforming use of structure and land in combination shall not be enlarged or extended after passage of this LDC by attachment on a building or premises of additional signs intended to be seen from off the premises, or by the addition of other uses, of a nature which would be prohibited generally in the district involved.

(3)

To avoid undue hardship, nothing in this section shall be deemed to require a change in the plans, construction, or designated use of any building on which actual construction was lawfully begun prior to the effective date of the ordinance from which this LDC is derived and upon which the actual building construction has been carried out diligently. The term "actual construction" means and includes the placing of construction materials in a permanent position and fastened in a permanent manner. Where excavation or demolition or removal of an existing building has been substantially begun preparatory to rebuilding, such excavation or demolition or rebuilding shall be deemed to be actual construction, provided that the work shall be carried on diligently.

7.01.02.

Nonconforming lots of record.

(a)

In any district in which single-family dwellings are permitted, a single-family dwellings and customary accessory buildings may be erected on any lot of record at the effective date of the ordinance from which this LDC is derived, notwithstanding limitations imposed by other provisions of this LDC. Such lot must be in separate ownership and not of continuous frontage with other lots in the same ownership. This provision shall apply even though such lot fails to meet the requirement for area or width, or both, that are generally applicable in the district, provided that yard dimensions and requirements other than those applying to the area or width, or both, of the lot shall conform to the regulations for the district in which such lot is located. Variance of yard requirements shall be obtained only through action of the board of adjustment.

(b)

If two or more lots or combinations of lots and portions of lots with continuous frontage in single ownership are of record at the time of passage or amendment of the ordinance from which this section is derived, and if all or part of the lots do not meet the requirements for lot width and area, the lands involved shall be considered to be an undivided parcel for the purposes of this section, and no portion of said parcel shall be used or sold in a manner which diminishes compliance with the lot width and area requirements established by this section, nor shall any division of any established by this section, nor shall any division of any parcel be made which creates a lot with width or area below the requirements of this section.

7.01.03.

Nonconforming uses of land; land with minor structures only. Where at the time of passage of the ordinance from which this LDC is derived lawful use of land exists which would not be permitted by the regulations imposed by this LDC, and where such use involves no individual structure with a replacement cost exceeding $1,000.00, the use may continue so long as it remains otherwise lawful, provided:

a.

No such nonconforming use shall be enlarged or increased, nor extended to occupy a greater area of land than was occupied at the effective date of the ordinance or amendment from which this LDC is derived.

b.

No such nonconforming use shall be moved in whole or in part to any portion of the lot or parcel other than that occupied by the use at the effective date of the ordinance or amendment from which this LDC is derived.

c.

If such nonconforming use of land ceases for any reason for a period of more than 90 days, any subsequent use of such land shall conform to the regulations specified by this LDC for the district in which such land is located, however this shall not apply to nonconforming agricultural uses when the land is used during each customary growing season.

d.

No additional structure not conforming to the requirements of this LDC shall be erected in connection with such nonconforming use of land.

7.01.04.

Nonconforming structures. Where a lawful structure exists at the effective date of adoption or amendment of the ordinance from which this LDC is derived, that could not be built under the terms of this LDC by reason of restrictions on area, lot coverage, height, yards, its location on the lot, or other requirements concerning the structure, such structure may be continued so long as it remains otherwise lawful, subject to the following provisions:

a.

No such nonconforming structure may be enlarged or altered in any way which increases its nonconformity, but any structure or portion thereof may be altered to decrease its nonconformity.

b.

Should such nonconforming structure or nonconforming portion of a structure be destroyed by any means to an extent of more than 50 percent of its replacement costs at the time of destruction, it shall not be reconstructed, except in conformance with the provisions of this LDC.

c.

Should the 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.

7.01.05.

Nonconforming uses of structures; structures and premises in combination. If lawful use involving individual structures with a replacement cost of $1,000 or more, or of structures and premises in combination, exists at the effective date of adoption or amendment of the ordinance from which this LDC is derived, that would not be allowed in the district under the terms of this LDC, the lawful use may be continued so long as it remains otherwise lawful, subject to the following provisions:

a.

No existing structure devoted to a use not permitted by this LDC in the district in which it is located shall be enlarged, extended, constructed, reconstructed, moved or structurally altered, except in changing the use of the structure to a use permitted in the district in which it is located;

b.

Any nonconforming use may be extended throughout any parts of a building which were manifestly arranged or designed for such use at the time of adoption or amendment of the ordinance form which this LDC is derived, but no such use shall be extended to occupy any land outside such building;

c.

If no structural alterations are made, any nonconforming use of a structure, or structure and premises, may as a special exception be changed to another nonconforming use, provided that the board of adjustment, either by general rule or by making findings in the specific case, shall find that the proposed use is equally appropriate or more appropriate to the district than the existing nonconforming use. In permitting such change, the board of adjustment may require appropriate conditions and safeguards in accord with the provisions of this LDC.

d.

Any structure, or structure and land in combination, in or on which a nonconforming use is superseded by a permitted use, shall thereafter conform to the regulations of the district, and the nonconforming use may not thereafter be resumed.

e.

Where a nonconforming use of a structure, or structure and premises in combination, is discontinued or abandoned for 12 consecutive months or for 18 months during any three year period, except where government action impedes access to the premises, the structure, or structure and premises in combination, shall not thereafter be used, except in conformity with the regulations of the district in which it is located.

f.

Where nonconforming uses status applies to a structure and premises in combination, removal or destruction of the structure shall eliminate the nonconforming status of the land. The term "destruction" for the purposes of this subsection is defined to damage to an extent of more than 50 percent of the replacement cost at the time of destruction.

7.01.06.

Nonconforming characteristics. If characteristics of use, such as signs, off-street parking or off-street loading, or other matters pertaining to the use of land, structures, and premises are made nonconforming by these zoning regulations as adopted or amended, no change shall thereafter be made in the characteristic of use which increases the nonconformity with the regulations herein set out; provided that, changes may be made which do not increase, or which decrease, the nonconformity; and provided further that in all residential areas, nonconforming signs shall be removed within two years of the effective date of the ordinance from which this LDC is derived, or that within the period of two years, such signs shall be made to conform to the regulations of the districts in which they are located.

7.01.07.

Repairs and maintenance.

(a)

If a nonconforming structure, or portion of a structure containing a nonconforming use becomes physically unsafe or unlawful due to lack of repairs and maintenance, and is declared by any duly authorized official to be unsafe or unlawful by reason of physical condition, it shall not thereafter be restored, repaired or rebuilt, except in conformance with the regulations of the district in which it is located.

(b)

If a nonconforming structure, or portion of a structure containing a nonconforming use becomes unsafe or unlawful for reasons other than lack of repairs or maintenance, nothing in this section shall be deemed to prevent the strengthening or restoring to a safe condition of any building or part thereof declared to be unsafe by any official charged with protecting the public safety, upon order of that official.

7.01.08.

Casual, temporary, or illegal use. The casual, temporary, or illegal use of land or structures, or of land and structures in combination, shall not be sufficient to establish the existence of a nonconforming use or to create rights for the continuance of such use.

7.01.09.

Special exception provision. Any use which is permitted as a special exception provision in a district under the terms of this LDC, other than a change through board of adjustment action from one nonconforming use to another use not generally permitted in the district, shall not be deemed a nonconforming use in such district, but shall without further action be considered a conforming use.

(Ord. No. 94-112, exh. A(7.01), 1-18-1994)

7.02.01.

Generally. The board of adjustment may, pursuant to the provisions of this section, grant variances from the provisions of this LDC as provided for herein.

7.02.02.

Variances; conditions governing applications; procedures. To authorize upon appeal in specific cases such variance from the terms of this LDC as will not be contrary to the public interest when, owing to special conditions, a literal enforcement of the provisions of this LDC would result in unnecessary hardship. A variance from the terms of this LDC shall not be granted by the board of adjustment, unless and until:

a.

A written application for a variance is submitted to the administrative official, demonstrating that:

1.

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 district.

2.

Literal interpretation of the provisions of this LDC would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this LDC and would work unnecessary and put an undue hardship on the applicant.

3.

The special conditions and circumstances did not result from the actions of the applicant.

4.

Granting the variance requested will not confer on the applicant any special privilege that is denied by this LDC to other lands, structures, or buildings in the same district.

5.

The variance requested is the minimum variance that will make possible the reasonable use of the land, building, or structure.

6.

The grant of the variance will be in harmony with the general intent and purpose of this LDC and that such variance will not be injurious to the area involved or otherwise detrimental to the public welfare.

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

b.

Notice shall be given at least 15 days in advance of the public hearing. The owner of the property for which the variance is sought, or his agent shall be notified by certified mail. Notice of such hearing shall be posted on the property for which the variance is sought, at the post office, and in one other public place at least 15 days prior to the public hearing.

c.

At the public hearing any party may appear in person, or by agent, or attorney.

d.

The board of adjustment shall make findings that the requirements of subsection 8.02.03 have or have not been met by the applicant for a variance.

e.

In granting any variance, the board of adjustment may prescribe appropriate conditions and safeguards in conformity with this LDC. Violation of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed to be a violation of this section and punishable under section 8.06 of this LDC.

f.

The board of adjustment may prescribe a reasonable time period within which the action for which the variance is required shall be begun, completed or both.

g.

Under no circumstance shall the board of adjustment grant a variance to allow a use not permissible under the terms of this LDC in the district involved, or any use expressly or by implication prohibited by the terms of this LDC.

7.02.03.

Variances from road setbacks. Any variance that permits encroachment upon a required setback from a road or street must be reviewed for final action by the town council.

(Ord. No. 94-112, exh. A(7.02), 1-18-1994)

7.03.01.

Vested rights.

a.

The town recognizes that development has and is taking place prior to the effective date of the ordinace from which this LDC is derived. It is the legislative intent of the town that no abrogation of vested rights is intended by this LDC. Nothing contained in this LDC shall be construed as applied to abrogating valid existing vested rights.

b.

It shall be the duty and responsibility of the party alleging vested rights to affirmatively demonstrate the legal requisites to vested rights.

c.

Rights shall vest under the common law upon a demonstration to the town and/or agency thereof that the applicant:

1.

Has relied in good faith;

2.

Upon some act or omission of the government; and

3.

Has made such substantial changes in position or incurred such extensive obligations and expenses to their detriment that it would be highly inequitable to deny relief and unjust to destroy the rights acquired, Salkosky v. City of Coral Gables, 151 So.2d 433 (Fla. 1963).

d.

Rights shall vest statutorily under F.S. ch. 163, for purposes of consistency with the comprehensive plan when an applicant is able to provide that:

1.

A valid and unexpired final development order was issued by the town prior to the effective date of the ordinance from which this LDC is derived;

2.

Substantial development shall have occurred on a significant portion of the development authorized in the final development order; and

3.

The development is completed or is continuing in good faith.

e.

Any structure on which construction has been completed pursuant to a valid building permit shall be presumptively vested for the purposes of consistency and concurrency and shall not be required to file an application to preserve vested rights.

f.

All lots of record as of the effective date of the ordinance from which this LDC is derived, whether located within a subdivision or without, but only to the extent of one single-family residence per lot, shall be presumptively vested for the purpose of density and shall not be required to file an application to preserve vested rights in this regard, provided such lots abut a public street and provided such lots are not contiguous, as of the effective date of the ordinance from which this LDC is derived, to any other lots owned by, or under contract for deed to, the persons applying for the single-family building permit.

g.

The mere existence of zoning contrary to the comprehensive plan shall not be determined to vest rights.

h.

The town shall develop application and policy procedures to implement the policies of vested rights, including additional criteria if deemed necessary.

7.03.02.

Takings.

a.

The town recognizes that the application of the provisions of this LDC may result in a regulatory taking of private property under certain situations. It is the legislative intent of the town that no taking is intended by this LDC and that nothing contained in this LDC shall be construed as applied to constitute a temporary or permanent taking of private property.

b.

A party alleging that the application of this LDC will result in a taking shall apply for relief to the town clerk who shall decide the matter in consultation with the town attorney. Appeals from decisions of the town clerk may be made to the board of adjustment.

c.

To avoid a regulatory taking, the owner of a parcel of land may apply to the board of adjustment for a special exception permit to allow development not otherwise permitted by applicable zoning regulations, if it is determined, either administratively by the town clerk in consultation with the town attorney, or by denial of a variance by the board of adjustment, as applicable, that no building may be erected on the parcel in conformity with the applicable zoning district regulations and other requirements of this LDC. The board of adjustment may grant a special exception permit in accordance with the procedures provided in section 8.04.04 of this LDC to allow any of the permitted uses for the zoning district in which the parcel is located, provided the board makes the following findings:

1.

No development permitted within the applicable zoning district can reasonably be conducted in accordance with the provisions of this LDC;

2.

The parcel cannot be combined with a contiguous parcel under the same ownership and thereby used in conformity with the applicable zoning regulations; and

3.

The granting of a special exception permit will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public, or conflict with other existing laws and ordinances.

In passing upon such applications, the board of adjustment shall also consider the size of the parcel, and whether it was platted as a lot suitable for development or otherwise established and recognized by the town as an individual lot suitable for development. Upon consideration of the factors in this section and the purposes of this LDC, the board of adjustment may attach such conditions and restrictions upon the special exception permit including a limitation of the extent or type of development permitted, as it deems necessary to further the purposes of this LDC. The development approved by the board of adjustment shall be the least intense development possible to effectively avoid successful regulatory taking claims while minimizing adverse impacts resulting from the development.

(Ord. No. 94-112, exh. A(7.03), 1-18-1994)