In construing the provisions hereof and each and every word, term, phrase or part thereof where the context will permit the definitions provided in Section 1.01, Florida Statutes, and Chapter 33 of the Code of Miami-Dade County, Florida, and the following additional definitions, shall apply:

(a)

Comprehensive Development Master Plan. The words "Comprehensive Development Master Plan" shall mean and refer to the Comprehensive Development Master Plan for Miami-Dade County adopted by Ordinance No. 75-22 on March 31, 1975, or as amended.

(b)

Conforms to the Comprehensive Development Master Plan. The words "conforms to the Comprehensive Development Master Plan" shall mean and refer to zoning request or action which is consistent with the goals, objectives, standards and policies of the Comprehensive Development Master Plan.

(c)

Development. The word "development" shall mean and refer to the carrying out of any use permitted on land by applicable zoning regulations (i.e., Chapter 33 of Code of Miami-Dade County, Florida) or making any material change in the use or character of the land, including, but not limited to, the placement of structure or structures on land. When appropriate to the context, development refers to the act of zoning or rezoning through district boundary changes, site or plot use approvals, or otherwise, which authorizes or permits development of the land.

(d)

Developments of County impact. The words "developments of County impact" shall mean and refer to any development which, because of its character, magnitude or location, would have a substantial effect upon the health, safety and welfare of the citizens of Miami-Dade County, Florida. Development activity meeting one (1) of the criteria specified in Section 33-304(d) is declared to be a development of County impact.

(e)

Developmental Impact Committee (Committee). The words "Developmental Impact Committee (Committee)" shall mean and refer to the Miami-Dade County Administrative Committee, created by Ord. No. 74-47, adopted on June 18, 1974, and as further described in Section 33-303.1, as may be amended from time to time.

(f)

Land. The word "land" shall mean and refer to earth, water and air above, below or on the surface.

(g)

Director. The word "Director" shall mean the Director of the Department, or the Director's designee.

(h)

Department. The word "Department" shall mean the Department of Regulatory and Economic Resources or successor department.

(i)

District. The word "District" shall mean and refer to the various zoning districts provided by Chapter 33 of the Code of Miami-Dade County, Florida.

(j)

District boundary maps. The words "district boundary maps" shall mean those maps kept on file in the Department showing the boundaries of the various districts, and more particularly described in Section 33-3 of the Code of Miami-Dade County, Florida.

(k)

Record. The word "record" when pertaining to the record of any board shall mean and include any application, exhibits, appeal papers, written objections, waivers or consents, considered by such board, transcript or stenographic notes taken for the Department at a hearing held before such board, if any, the board's minutes and resolution showing its decision or action, and if the record of a lower board is transmitted to a higher board, the record of the higher board shall include that of the lower board. The word "record" shall also include any and all applicable portions of Chapter 33 of the Code of Miami-Dade County, Florida, the report and recommendations of the Director and the Developmental Impact Committee; the Comprehensive Development Master Plan for Miami-Dade County, Florida; and Ordinance No. 75-22, or as amended, or applicable neighborhood or area studies or plans approved by action of the Board of County Commissioners, as well as applicable district boundary maps, aerial photographs and final zoning resolutions. It shall also include the record made as a result of any previous zoning application on the same property. The Clerk of the County Commission shall identify all exhibits used or referred to at the zoning hearing. All exhibits so identified or introduced shall be a part of the record. The record shall not include documents prepared or relied upon by an expert not filed in accordance with the provisions of Section 33-f(D) of the Code, or any oral testimony or written reports or documents which were not filed in accordance with the provisions of Section 2-114.1 of the Code.

(l)

Regulations or zoning regulations. The word "regulations" or the words "zoning regulations" shall mean and refer to the contents of Chapter 33 of the Code of Miami-Dade County, Florida, as from time to time amended.

(m)

Administrative official. The words "administrative official" shall mean the Director and any staff member of the Department authorized by the Director to enforce or interpret the regulations or various zoning resolutions.

(n)

Public benefit. The words "public benefit" shall mean and refer to a development which, after consideration of all of its aspects (including, but not limited to, environmental impact on facilities, economic and social) would be consistent with and not detrimental to the welfare of the community.

(o)

Unit. The word "unit" shall mean and refer to houses, apartments, group of rooms, or a single room occupied or intended for permanent or transient occupancy as separate living quarters.

(p)

Citizen participation. The words "citizen participation" shall refer to the suggestions and comments of responsible and recognized persons and groups to the Developmental Impact Committee during the deliberative processes and prior to final recommendations on appropriate developments. Citizen participation shall not refer to public hearings or adversary proceedings of any nature before the Developmental Impact Committee. The Developmental Impact Committee shall prepare appropriate guidelines involving citizen participation in the process.

(q)

Zoning actions. The words "zoning action" shall refer to any action pursuant to Chapter 33 of the Code of Miami-Dade County taken after a public hearing, including the acceptance of a declaration of restrictive covenants proffered at a public hearing.

(r)

Independent development parcel. The words "independent development parcel" shall refer to a development parcel which is buildable in one (1) or more phases, which parcel has parking, an independent circulation system, and sufficient identity to be developed independently of surrounding property. A development parcel may consist of one (1) or more platted tracts, developed as a single independent development parcel.

(s)

"Immediate vicinity" means an area in which a parcel of land proposed for alternative development is located that is physically, functionally or geographically identifiable as a distinct realm, place or neighborhood, or an area within a radius of not more than five hundred (500) feet from the parcel proposed for alternative development, whichever is smaller.

(t)

"Open space" means that portion of a parcel of land which is not covered with a building and is open to the sky and may include patios, limited roof overhangs, screened enclosures with screened roofs, open trellises, walkways, swimming pools, tennis courts, landscaped areas, decks, and non-covered parking areas.

(u)

"Parcel proposed for alternative development" means the site of the structure for which alternative site development option approval is sought.

(v)

"Proposed alternative development" means any building activity for which alternative site development approval is sought.

(w)

"Underlying district regulations" means the site development regulations of the particular zoning district in which proposed alternative development is located, such as setbacks, lot area, frontage, and depth, lot coverage, and structure height.

(Ord. No. 60-14, § 4-19-60; Ord. No. 61-30, § 1, 6-27-61; Ord. No. 75-47, § 1, 6-18-75; Ord. No. 77-40, § 2, 6-21-77; Ord. No. 83-59, § 1, 7-19-83; Ord. No. 89-10, § 3, 2-21-89; Ord. No. 95-215, § 1, 12-5-95; Ord. No. 96-127, § 33, 9-4-96; Ord. No. 97-131, § 1, 7-22-97; Ord. No. 98-125, § 21, 9-3-98; Ord. No. 03-91, § 1, 4-22-03; Ord. No. 13-16, § 2, 2-5-13; Ord. No. 17-84, § 1, 11-7-17)

(a)

Applicability of zoning procedures. The procedures provided in this chapter shall be exclusive in the unincorporated area of the County and for any airport or seaport properties and other areas where the County retains zoning jurisdiction in incorporated areas of the County. No application for a district boundary change, appeal of administrative decision, special exception, unusual or new use, variance, or other zoning action shall be considered or granted by the Board of County Commissioners or by any County Board except as provided for by this chapter, and shall only be conducted in accordance with the procedure and method so provided.

(b)

Exception; procedure for governmental facilities. Notwithstanding any other provision of this code to the contrary, unless a governmental facility is authorized as a designated permitted use in a zoning district, Miami-Dade County and its agencies and authorities shall not be bound by the procedures contained in this chapter in constructing or operating any governmental facility listed below in the unincorporated area of Miami-Dade County or where the County retains zoning jurisdiction in incorporated areas. In the event of a conflict with this Board's Rules of Procedure, the provisions of this subsection shall control.

(1)

Governmental facilities enumerated. The Board of County Commissioners may establish any of the following governmental facilities operated by or on behalf of Miami-Dade County where the Board may direct, without regard to the zoning or use classification of any particular site or location: public parks, playgrounds and buildings, and structures supplementary and incidental to such uses; domestic violence centers; fire stations; police stations; public auto inspection stations; public water and sewer treatment and distribution facilities; public libraries; public buildings and centers; public housing; public hospitals, nursing homes and health facilities; homeless shelters; public auditoriums, arenas, museums, art galleries and convention halls; maximum and minimum detention facilities; solid-waste collection and disposal facilities; public maintenance and equipment yards; public bus stations and Rapid-Transit stations and facilities; and other governmental facility uses as determined by the Board of County Commissioners.

(2)

Notice and public hearing required. The Board of County Commissioners may only authorize the construction or operation of the governmental facilities enumerated in paragraph (1) above by resolution following public hearing.

(i)

The said public hearing shall be held upon at least 15 days' notice of the time and place of such hearing published in a newspaper of general circulation in Miami-Dade County, which publication shall include the time and place of hearing before the Board of County Commissioners.

(ii)

A courtesy notice containing general information as to the date, time, and place of the hearing, the property location and general nature of the application may be mailed to the property owners of record, within a radius of 300 feet of the property described in the application, or such greater distance as the Director may prescribe; provided, however, that failure to mail or receive such courtesy notice shall not affect any action or proceeding taken hereunder.

(iii)

To provide additional notice to the public, the property shall be posted by a sign or signs indicating the action desired and the time and place of the public hearing thereon. Failure to post such property shall not affect any action taken hereunder.

(iv)

At the public hearing the Board of County Commissioners shall consider, among other factors, the type of function involved, the public need therefor, the existing land use pattern in the area, alternative locations for the facility and the nature of the impact of the facility on the surrounding property. After considering these said factors, the Board of County Commissioners shall take such action as is necessary to provide for and protect the public health, safety and welfare of the citizens and residents of Miami-Dade County.

(3)

Posting of property. In the event the Board of County Commissioners authorizes the construction or operation of a governmental facility in accordance with the procedures delineated above, or in the event the Board otherwise determines that County-owned property or property operated by or on behalf of the County should be utilized by the County for a particular public purpose, the property shall be posted by a sign or signs conspicuously located thereon indicating the governmental facility or use authorized for the property. Such sign or signs may be removed upon the commencement of construction. The County Mayor or designee shall periodically check the property to ensure that the signs provided for in this paragraph remain in existence and accurately depict the proposed use of the subject property. This paragraph shall be construed as directory only and failure to comply with the provisions hereof shall not affect the validity of the County Commission's action authorizing the use of the property for the designated purposes.

(4)

Domestic violence center. Any facility which is designated as or intended to be operated as a domestic violence center at the time of consideration, planning, construction, or acquisition, shall be exempt from the notice and public hearing provisions set forth in this subsection.

(5)

Deferral by Commissioner. A County Commissioner may request a deferral of any item processed in accordance with this subsection for up to two meetings the first time the item appears on a Board agenda, or the first time the item is raised at a Board meeting, if the impacts of the proposed construction or operation of the governmental facility would be felt exclusively or predominantly in that Commissioner's district. Upon the Commissioner's invoking this right, discussion upon that item shall cease, and the Board shall move to another item of business. The provisions of this paragraph shall be deemed waived unless asserted by a Commissioner before the Board takes action on the resolution in question.

(6)

Administrative Approval of Non-Substantial Change. For governmental facilities plans approved in accordance with this section, the Director is hereby authorized to approve changes that the Director determines to be non-substantial, as demonstrated by the following factors:

(i)

Development density and intensity have not materially changed;

(ii)

Design has not materially changed, provided that:

1.

Relocation of roadways, including ingress and egress, is determined not to create traffic obstructions and is approved by the Department of Transportation and Public Works or its successor department;

2.

Relocation, reconfiguration, or reduction of the parking area and its spaces does not impact adjoining properties, and the Director determines that sufficient spaces for the use are retained;

3.

Modification of building setbacks from perimeter property lines does not negatively impact adjoining properties, or the modification is mitigated to a minimize the impact;

4.

Reconfiguration of the landscaped open space does not diminish any previously approved buffering or separation from surrounding properties;

5.

Modification to walls or fences does not diminish previously approved buffering or separation from surrounding properties;

6.

Conversion of a use, facility, or element to another use, facility, or element remains within the scope of the previously approved plan;

7.

Addition of uses, facilities, or elements not shown in the previously approved plans either: do not increase lot coverage, or decrease required open space, by greater than 10 percent; or (ii) consist of uses, facilities, or elements that were described in the resolution, site review committee memo, report, or study presented to the Board in the governmental facility hearing; and

8.

Relocation or modification of signage remains consistent with the intent of the approved plan in size, height, and class of sign.

(iii)

Modifications shall not be eligible for administrative approval in any of the following circumstances:

1.

The amount of impervious surfaces approved in the original plan would be increased; or

2.

Infrastructure in the public right-of-way or on other properties could be affected, whether the effect is major or minor; or

3.

Green space would be significantly depleted; or

4.

The proposed modification does not adhere to the original intent of the approved plan.

(Ord. No. 60-14, 4-19-60; Ord. No. 61-30, § 1, 6-27-61; Ord. No. 66-66, § 1, 12-20-66; Ord. No. 74-68, § 1, 9-3-74; Ord. No. 75-94, § 1, 11-4-75; Ord. No. 79-30, § 1, 4-17-79; Ord. No. 81-113, § 1, 10-6-81; Ord. No. 87-29, § 1, 5-19-87; Ord. No. 93-11, § 1, 2-16-93; Ord. No. 95-215, § 1, 12-5-95; Ord. No. 97-12, § 2, 2-25-97; Ord. No. 17-84, § 2, 11-7-17)

Editor's note— Ord. No. 17-84, § 2, adopted Nov. 7, 2017, amended § 33-303 title to read as set out herein. The former § 33-303 title pertained to exclusive procedure.

(A)

There is hereby established a Developmental Impact Committee (DIC), which shall serve as a developmental review committee, composed of members representing the following County departments and agencies or their successor departments or agencies:

(1)

Department of Public Works and Waste Management; two (2) members consisting of one representative from the Traffic Division and one representative from the Solid Waste Division.

(2)

Department of Regulatory and Economic Resources; three (3) members consisting of one representative from the Division of Environmental Resource Management, one representative from the Division of Planning, and one representative from the Development Services Division.

(3)

Parks, Recreation and Open Spaces Department.

(4)

Miami-Dade Water and Sewer.

(5)

Miami-Dade Police Department, consisting of a representative with responsibility for budget and the District Commander of the district where the application is located, or his or her designee.

(6)

Fire Rescue Department.

(7)

Miami-Dade Transit Department.

(8)

Metropolitan Planning Organization.

(9)

The County Mayor shall invite the School Board of Miami-Dade County, Florida and the South Florida Water Management District each to assign a permanent representative to the Developmental Impact Committee who shall remain permanent employees of the School Board and the district respectively.

(10)

Whenever the Developmental Impact Committee is to consider a development of County impact that is proposed in a municipality, representatives of the municipal government shall be invited to serve and participate as ex officio members of the Committee upon all matters relating to the said development.

(B)

The Executive Council of the Developmental Impact Committee (Executive Council) shall consist of representatives from the following Departments: Department of Regulatory and Economic Resources; Department of Public Works and Waste Management; Water and Sewer Department; Parks, Recreation and Open Spaces Department; Transit Department; the Secretariat of the Metropolitan Planning Organization (MPO); and the County Mayor or his or her designee. Each Department shall be represented by the Director or an Assistant Director, except that the Department of Regulatory and Economic Resources shall be represented by two of the following: the Director, the Assistant Director for Development Services, or the Assistant Director for Environmental Resources Management. Each member may assign staff of the respective department to act on his/her behalf as needed. The Executive Council shall discharge such duties and functions as conferred by the Code of Miami-Dade County, Florida and by the ordinances, rules and regulations approved by the Board of County Commissioners. The duties and functions of the Executive Council Chair shall be assumed by each of its members on a rotating basis as needed.

(C)

Each named department shall appoint a representative or representatives to the Committee who shall serve full-time in that capacity unless otherwise permitted by the Chairman. The Chairman and members of the Committee shall be furnished with such administrative and clerical assistance as the County Manager deems necessary. They shall sit en banc and shall hold such meetings as required by the Chairman or as prescribed by this section.

(D)

Duties of the Executive Council of the Developmental Impact Committee. The Executive Council shall perform the following duties:

(1)

Review and make recommendations concerning all applications submitted after January 1, 2014 for development approval of a new development of regional impact. The Board of County Commissioners' decision on any such application shall be within the scope of that which was reviewed by the Executive Council of the Developmental Impact Committee.

(2)

Upon application, make recommendations to the Board of County Commissioners regarding any request for an order to abandon a development of regional impact ("DRI") and associated development order pursuant to section 380.06(11), Florida Statutes.

(3)

Assist the Director in the preparation of a development manual prescribing uniform standards of, and procedures for, development in Miami-Dade County.

(4)

Establish, and from time to time amend, rules and regulations relating to the preparation of site plans, and other matters, which will assist the general public in complying with the provisions of this section, or such other ordinances relating hereto as may be enacted; provided, however, that such rules and regulations, and amendments thereto, shall only become effective when approved by the Board of County Commissioners following public hearing thereon and filed with the Clerk of the County Commission.

(5)

Serve, in their individual capacities as Committee members, as liaison to the respective County departments or agencies on all matters herein prescribed.

(6)

Render preliminary opinions, following preapplication conferences, if requested, on development impacts of zoning applications as established by rule and regulation.

(7)

Assist in the preparation and updating of a capital improvement program for Miami-Dade County.

(8)

Encourage in any manner deemed appropriate by the Developmental Impact Committee responsible citizen contributions to its deliberative processes prior to making final recommendations to the Board of County Commissioners.

(9)

Perform such other functions as prescribed by the County Mayor.

(10)

Recommend a reasonable review fee to be established by implementing order. No such implementing order shall be effective until approved by the Miami-Dade County Board of County Commissioners.

(11)

Serve as the Land Development Regulation Commission as provided for in Section 163.3164, Florida Statutes, and develop, recommend and review land development regulations, or amendments thereto, and make recommendations to the Board of County Commissioners as to the consistency of the proposal with the Comprehensive Development Master Plan.

(12)

Review and make recommendations to the Board of County Commissioners concerning all development agreements as defined in Section 33G-8 as required by Section 33G-8((a) and (b)) of the Code of Miami-Dade County.

(E) Duties of the Developmental Impact Committee (DIC). The DIC shall perform the following duties:

(1)

Review, pursuant to the criteria provided herein, those applications for zoning action or development as defined in Section 33-302 which constitute developments of County impact or which, if granted, could result in developments having a significant impact on the natural and human environment of Miami-Dade County, Florida. Such developments shall include but not be limited to those listed in Section 33-303.1(E)(2). The review criteria shall be as follows:

(a)

The development, as proposed, conforms to the Comprehensive Development Master Plan for Miami-Dade County, Florida, and is consistent with the recommendations of any applicable neighborhood or area studies or plans which have been approved by action of the Board of County Commissioners, or is otherwise compatible with the existing area or neighborhood development;

(b)

The development would serve a public benefit;

(c)

The development, as proposed, will have a favorable or unfavorable impact on the environment and natural resources of Miami-Dade County, including a consideration of the means and estimated cost necessary to minimize the adverse impacts, if any; the extent to which alternatives to alleviate adverse impacts may have a significant impact on the natural and human environment, and an identification of any irreversible or irretrievable commitment of natural resources which would be involved should the development be implemented;

(d)

The development, as proposed, will have a favorable or unfavorable impact on the economy of Miami-Dade County, Florida;

(e)

The development, as proposed, will efficiently use or unduly burden water, sewer, solid waste disposal, education, recreation or other necessary public facilities which have been constructed or planned and budgeted for construction in the area;

(f)

The development, as proposed, will efficiently use or unduly burden or affect public transportation facilities, including mass transit, public streets, roads and highways, which have been planned and budgeted for construction in the area, and if the development is or will be accessible by private or public roads, streets, or highways.

(2)

Except for applications which seek only non-use variances and/or a modification of a condition(s) or covenant(s) and which do not approve a change of use or an increase in the floor area for any and all nonresidential use(s), review County zoning actions which are:

(a)

Required by the regulations to be taken after public hearing, and which would allow individually, or cumulatively within an independent development parcel:

1.

Residential developments involving in excess of two hundred fifty (250) dwelling units.

2.

Business uses involving in excess of ten (10) acres or one hundred thousand (100,000) square feet of retail floor area, or one thousand (1,000) vehicle off-street parking space capacity.

3.

Recreational, cultural, or entertainment facilities involving in excess of one thousand (1,000) vehicle off-street parking space capacity for single performance or twenty (20) acres.

4.

Office buildings or office complexes involving in excess of one hundred twenty-five thousand (125,000) square feet of floor space, or one thousand (1,000) vehicle off-street parking space capacity.

5.

Industrial, processing or manufacturing activity involving fifty (50) acres, or five hundred (500) vehicle off-street parking space capacity.

6.

Hotel and/or motel developments involving in excess of two hundred fifty (250) units.

7.

All planned area developments.

8.

Mixed-use developments with two (2) or more of the land use types specified in Subsections (E)(2)(a) 1 through 6 above where none of the individual land uses in the development meet or exceed the thresholds listed in Subsections (E)(2)(a) 1 through 6 above and where the sum of the percentages of the appropriate thresholds listed in Subsections (E)(2)(a) 1 through 6 above for each applicable land use in the development is greater than one hundred thirty (130) percent. Where a development addresses more than one (1) threshold within a particular land use type listed in 1 through 6 above, then the threshold in that land use type which generates the highest percentage shall be utilized in the calculation of the total mixed-use percentage for the subject development.

(b)

Required by the regulations to be taken after public hearing, which zoning action would change in any respect an existing resolution pertaining to an application reviewed by the Developmental Impact Committee, and is presumed to constitute a substantial deviation. All such applications for change shall be presumed to request substantial deviation, unless the requested action neither equals, exceeds, or conflicts with either of the following limitations and standards:

1.

An increase in the number of dwelling units of twenty (20) percent or one hundred (100) units, whichever is less.

2.

An increase in the floor area for nonresidential uses of twenty (20) percent or thirty thousand (30,000) square feet, whichever is less;

The foregoing presumption of substantial deviation shall not apply whenever the Director determines that the requested modification would not constitute a potential negative impact under the guidelines of Section 33-301.1(D)(1).

(c)

The DIC shall address the extent to which the development permitted by the approval of a zoning action will efficiently use or unduly burden water, sewer, solid waste disposal, education, recreation, or other necessary public facilities or public transportation facilities, including roads, streets, and highways, which have been constructed or planned and budgeted for construction in the area, and whether the proposed development will have a favorable or unfavorable impact on the economy of Miami-Dade County, Florida.

(d)

The DIC shall promulgate rules and regulations establishing guidelines, criteria, and procedures for the expeditious review of all said zoning actions involving site or plot use plans. In establishing such criteria, the DIC is instructed to encourage originality, increase residential amenities, enhance the appearance of the neighborhood, and, where possible, to preserve the natural features and encourage the best utilization of the land for the benefit, use, and enjoyment of future residents and owners of the property consistent with the overall good of the community.

(3)

Review all applications for public charter school facilities and all applications for expansions or modifications to existing public charter school facilities.

(4)

Review on behalf of Miami-Dade County declarations of restrictive covenants running in favor of Miami-Dade County and proffered by applicants for public charter school facilities that are exempt pursuant to Section 33-161 of this Code from the zoning hearing process in this article, provided that said declarations provide for development restrictions or enhancements that will ensure development of proposed charter school facilities that are consistent with the Comprehensive Development Master Plan and with applicable zoning regulations.

(5)

Comments by the Developmental Impact Committee shall be considered by the Director in making the Director's recommendation to the applicable board.

(Ord. No. 75-47, § 2, 6-18-75; Ord. No. 76-51, § 1, 6-1-76; Ord. No. 76-56, § 1, 6-15-76; Ord. No. 76-107, § 2, 12-7-76; Ord. No. 77-3, § 1, 1-4-77; Ord. No. 80-93, § 1, 9-16-80; Ord. No. 82-4, § 2, 2-2-82; Ord. No. 83-59, § 2, 7-19-83; Ord. No. 87-48, § 1, 7-7-87; Ord. No. 88-50, § 1, 6-7-88; Ord. No. 89-10, § 4, 2-21-89; Ord. No. 89-66, § 2, 7-11-89; Ord. No. 91-24, § 2, 2-19-91; Ord. No. 95-215, § 1, 12-5-95; Ord. No. 98-125, § 21, 9-3-98; Ord. No. 98-176, § 1, 12-3-98; Ord. No. 99-123, § 3, 9-21-99; Ord. No. 00-31, § 2, 2-24-00; Ord. No. 01-87, § 1, 5-8-01; Ord. No. 03-133, § 1, 6-3-03; Ord. No. 04-108, § 3, 6-8-04; Ord. No. 09-76, § 1, 9-1-09; Ord. No. 11-86, § 1, 11-15-11; Ord. No. 13-16, § 3, 2-5-13; Ord. No. 14-70, § 1, 7-1-14; Ord. No. 21-6, § 3, 1-21-21)

Annotation—AO 4-58.

Editor's note— Ord. No. 19-112, § 5, adopted Nov. 19, 2019, repealed § 33-303.2, which pertained to airport developmental impact committee and derived from Ord. No. 04-203, § 15, adopted Nov. 30, 2004 and Ord. No. 08-73, § 1, adopted June 3, 2008.

(a)

All requests for a district boundary change, appeal of administrative decision, special exception, unusual use, new use, variance, approval of or modification to a development of regional impact ("DRI"), or for other zoning action shall be made by filing an application therefor with the Director on application forms prescribed by the Director or by rule and regulation of the Developmental Impact Committee.

(1)

Disclosure of interests required. Forms shall include, but not be limited to, disclosure forms for corporations, trusts, and partnerships, and disclosure of information regarding contract purchasers and their percentage(s) of interest.

(a)

Disclosure shall not be required of: i) any entity, the equity interests in which are regularly traded on an established securities market in the United States or another country; or ii) pension funds or pension trusts of more than 5,000 ownership interests; or iii) any entity where ownership interests are held in a partnership, corporation or trust consisting of more than 5,000 separate interests, including all interests at every level of ownership, and where no one person or entity holds more than a total of five percent of the ownership interest in the partnership, corporation or trust.

(b)

Entities whose ownership interests are held in a partnership, corporation, or trust consisting of more than 5,000 separate interests, including all interests at every level of ownership, shall only be required to disclose those ownership interest which exceed five percent of the ownership interest in the partnership, corporation, or trust.

(c)

Disclosure forms shall be established by implementing order approved by the Board of County Commissioners.

(d)

Such disclosure forms shall be included in the agendas distributed in connection with the public hearing on the application.

(2)

Statement of consistency with comprehensive plan required. Where applicable, applications shall specify whether, and the extent to which, the requested change in land use or proposed development conforms to the Comprehensive Development Master Plan for Miami-Dade County, Florida.

(3)

Boundary survey required. All requests to authorize or permit development filed pursuant to this section shall include a boundary survey of the property that is the subject of the application performed in accordance with rule 5J-17.052, Florida Administrative Code, as may be amended from time to time.

(a)

The survey shall also identify any portion of the property that is contiguous to or across the street from a municipal boundary.

(b)

It is further provided that such survey shall depict the location of any municipal boundary on or across the property being surveyed.

(c)

The boundary survey submitted shall have been updated within one year preceding the date of an application filed pursuant to this section.

(4)

Limitations on filing of subsequent applications.

(a)

Upon the approval of a zoning application in whole or in part, a period of six months must run prior to the filing of any subsequent application on the same property; provided that the appropriate board upon approving the application may provide for a different waiting period upon a showing of good cause.

(b)

Applications approved for withdrawal without prejudice must wait a period of six months prior to the filing of any subsequent application on the same property; provided that the appropriate board upon approving the withdrawal without prejudice may provide for a different waiting period upon a showing of good cause.

(c)

Upon the final denial of a zoning application without prejudice, a period of one year must run prior to the filing of a subsequent application on the same property; provided that the appropriate board upon denying the application without prejudice may provide for a different waiting period upon a showing of good cause.

(d)

Upon the withdrawal or final denial of a zoning application with prejudice in whole or in part, a period of 18 months must run prior to the filing of a subsequent application.

(e)

In the event an application in whole or in part has been twice or more denied or withdrawn, a period of two years must run prior to the filing of any subsequent application.

(f)

Such periods of limitation shall not commence to run until the decision has been rendered by the last Board to consider the application.

(g)

Such periods of limitation shall not apply to applications filed by the Director or the Zoning Official.

(h)

Notwithstanding any provisions to the contrary it is expressly provided that, except for applications that have been twice or more denied or withdrawn, there shall be no period of limitation for either:

(i)

a subsequent application that proposes a lesser total density or a less intense use than the preceding application, as determined by the Director at the time of filing;

(ii)

a subsequent application that proposes five or fewer residential units; or

(iii)

a subsequent application that proposes development in the "urban infill area," as that area is defined in the Comprehensive Development Master Plan.

(5)

Time for requesting withdrawal. The following time frames govern requests for withdrawal:

(a)

An application may be withdrawn without prejudice by the applicant as a matter of right, provided the request for withdrawal is in writing and executed in the same manner as provided by Section 33-309 for the executing of application, and filed with the Department no later than 40 days prior to the public hearing;

(b)

otherwise all such requests for withdrawal shall be with prejudice save and except that the Community Zoning Appeals Boards or the Board of County Commissioners may permit withdrawals without prejudice at the time the matter is considered by such Boards;

(c)

provided, further, no application may be withdrawn after final action has been taken.

(b)

All zoning hearing or administrative approval applications in this chapter may be filed at any time.

(c)

Upon filing, the Director shall promptly identify and group those applications for district boundary changes, use special exceptions, unusual and new uses and use variances which relate to or affect any particular or immediate neighborhood or area as determined by the Director, and, to the extent possible, shall notice public hearings thereon, in accordance with Section 33-310 of the Code of Miami-Dade County, so as to allow the appropriate board to consider and determine the effect of the said applications on the said neighborhood or area as a whole and their relation to and conformity with the Comprehensive Development Master Plan. Upon receipt of an application, the Director shall forward the application to the appropriate Departments, as determined by the Director, for review. To allow for timely processing of applications, Department comments are to be provided to the Director within twenty-one (21) days following transmittal of the request for review, unless a greater review period is allowed by the Director.

(d)

All applications for zoning action which would permit, if granted, development activity that meets one (1) of the following criteria are hereby declared "developments of county impact":

(1)

Residential apartment developments involving in excess of eight hundred (800) units;

(2)

All planned developments (provided by article XXXIIIB) or cluster developments (provided by article XXXIIIA) involving in excess of eight hundred (800) units;

(3)

Business uses involving in excess of thirty (30) acres or one hundred fifty thousand (150,000) square feet of retail floor area, or one thousand five hundred (1,500) vehicle off-street parking space capacity;

(4)

Mobile home parks involving in excess of eight hundred (800) mobile home units;

(5)

Townhouse developments involving in excess of one hundred (100) acres or eight hundred (800) units;

(6)

Recreational, cultural, or entertainment facilities, exclusive of golf courses, involving in excess of one thousand five hundred (1,500) vehicle off-street parking space capacity for single performances of fifty (50) acres;

(7)

Office buildings or office complexes involving two hundred fifty thousand (250,000) square feet of floor space, or one thousand five hundred (1,500) vehicle off-street parking space capacity;

(8)

Industrial, processing or manufacturing activity involving in excess of one hundred (100) acres, or one thousand (1,000) vehicle off-street parking space capacity;

(9)

Hotel and/or motel developments involving in excess of five hundred (500) units;

(10)

Detached single-family development involving in excess of eight hundred (800) units.

If any applicant is in doubt as to whether his proposed development would be a development of County impact, he may request a determination from the Developmental Impact Committee. Within thirty (30) days of the receipt of such request, the Chairman, on behalf of the Developmental Impact Committee, shall issue a letter of interpretation with respect to the proposed development. Where an application seeks only a special exception for site or plot use plan approval, the Developmental Impact Committee may require completion of a site plan application on a form prescribed by rule and regulation.

(e)

Amendments to an application shall be permitted; provided that, unless otherwise requested, suggested or concurred in by the Developmental Impact Committee, no substantial amendment shall be accepted by the Director within thirty (30) days prior to the first scheduled hearing on the application by the appropriate board or once the application has been heard and determined by the Community Zoning Appeals Board; provided further that an applicant may petition the appropriate board to permit such amendment at the time of hearing on the application and such amendment shall be accepted if approved by majority vote of those present upon good cause shown and provided it falls within the scope of the legal advertisement. In determining good cause, the appropriate board shall consider, among other factors, the timeliness of the amendment and the degree of inconvenience or surprise to objectors to the application. It is further provided that an amendment to correct a scrivener's error shall be permitted at any time up to and including the time of hearing.

(f)

All planned area development applications shall adhere to the following procedures which shall be deemed exclusive notwithstanding any other section herein: The Department shall submit the required exhibits for the total development plan to the Developmental Impact Committee for review in accordance with standards and review procedures of the Developmental Impact Committee. At a public hearing held by the Community Zoning Appeals Board, the developer shall present the proposal. The Community Zoning Appeals Board shall have the recommendations of the Developmental Impact Committee. The Community Zoning Appeals Board shall consider the information presented by the applicant, the recommendations of the Developmental Impact Committee and viewpoints of the public expressed at the hearing. The Community Zoning Appeals Board shall take formal action either approving the plan as presented, approving it subject to certain specified modifications, or disapproving it. Upon approval, plans, documents and recordable development agreements shall be filed with the Department and recorded in the official records and shall thereby constitute the planned area development district. If the planned area development is approved with specific modifications, as incorporated in the Community Zoning Appeals Board resolution, those modifications shall be made by the applicant prior to filing documents and plans with the Department. Such filing shall be completed within sixty (60) working days from the date the action of the Community Zoning Appeals Board becomes final including all appeals. Failure to do so shall nullify the Community Zoning Appeals Board's action unless waived by the Community Zoning Appeals Board or if appealed, by the County Commission. The Director shall review all modifications in accordance with the Community Zoning Appeals Board's resolution. The approved planned area development shall be indicated on the zoning map as would any other district boundary change. Review at the development tract level may then be initiated pursuant to the provisions of the planned area development districts.

(g)

Extensions granted by the Florida Legislature for development orders or development permits shall be approved administratively upon application on a form prescribed by the Director and shall not be subject to the provisions of Sections 33-310 and 33-310.1 of this Chapter. It is provided, however, that an extension shall not be approved administratively where the Director determines: (i) that the permit holder is in significant noncompliance with the conditions of the permit or order, as established through the issuance of a warning letter or notice of violation, the initiation of formal enforcement, or other equivalent action; (ii) that extension of the permit or order would delay or prevent compliance with a court order; or (iii) that extension of the permit or order would create an immediate threat to public safety or health.

(Ord. No. 60-14, 4-19-60; Ord. No. 61-30, § 1, 6-27-61; Ord. No. 62-48, § 1A, 12-4-62; Ord. No. 63-12, § 1, 4-16-63; Ord. No. 71-35, § 1, 4-22-71; Ord. No. 74-20, § 1, 4-3-74; Ord. No. 74-40, § 1, 6-4-74; Ord. No. 75-47, § 3, 6-18-75; Ord. No. 76-107, § 1, 12-7-76; Ord. No. 78-16, §§ 1, 2, 3-21-78; Ord. No. 78-52, § 2, 7-18-78; Ord. No. 79-20, § 1, 3-6-79; Ord. No. 83-59, § 3, 7-19-83; Ord. No. 88-82, § 1, 9-6-88; Ord. No. 89-24, § 1, 4-4-89; Ord. No. 89-96, § 1, 10-17-89; Ord. No. 91-31, § 1, 3-5-91; Ord. No. 92-67, § 2, 7-7-92; Ord. No. 95-215, § 1, 12-5-95; Ord. No. 95-217, § 1, 12-5-95; Ord. No. 96-127, § 34, 9-4-96; Ord. No. 98-125, § 21, 9-3-98; Ord. No. 98-172, § 1, 12-1-98; Ord. No. 00-31, § 2, 2-24-00; Ord. No. 02-9, § 1, 1-29-02; Ord. No. 02-150, § 1, 9-12-02; Ord. No. 02-254, § 1, 12-3-02; Ord. No. 03-131, § 1, 6-3-03; Ord. No. 13-16, § 4, 2-5-13; Ord. No. 16-10, § 1, 1-20-16; Ord. No. 21-6, § 3, 1-21-21)

No applicant for zoning action pursuant to Chapter 33 shall seek to induce favorable consideration of such application through contribution, dedication or conveyance of land for use of Miami-Dade County or the Miami-Dade County School Board unless the following requirements have been met:

A.

Property proposed to be conveyed to Miami-Dade County.

1.

The zoning applicant has submitted to the Miami-Dade County Department of Environmental Resources Management an environmental site assessment for the subject property which specifically complies with the requirements set forth in the American Society for Testing and Materials (ASTM) Standards on Environmental Site Assessments for Commercial Real Estate, Second Edition, E1527-94 Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process and 1528-93 Standard Practice for Environmental Site Assessments Transaction Screen Process.

2.

The Miami-Dade County Department of Environmental Resources Management has provided a recommendation after considering the environmental site assessment.

B.

Property proposed to be conveyed to the Miami-Dade County School Board.

1.

The zoning applicant has submitted to the Miami-Dade County School Board an environmental site assessment for the subject property which specifically complies with the requirements set forth in the American Society for Testing and Materials (ASTM) Standards on Environmental Site Assessments for Commercial Real Estate, Second Edition, E1527-94 Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process and 1528-93 Standard Practice for Environmental Site Assessments Transaction Screen Process.

2.

The Miami-Dade County School Board has provided a recommendation regarding the School Board's acceptance of the proposed conveyance or dedication after considering the environmental site assessment.

This section shall not be the subject of any variance request.

(Ord. No. 97-92, § 1, 6-17-97; Ord. No. 21-6, § 3, 1-21-21)

(A)

Policy and Intent. It is the policy of Miami-Dade County to provide for a reasonable accommodation to the application of its zoning regulations for the siting, development, and use of housing, as well as other related residential services and facilities, to persons with disabilities who demonstrate the need for such reasonable accommodation to obtain fair and equal access to, and use of, housing. The purpose of this section is to provide persons with disabilities a process for making a request for, and obtaining, such reasonable accommodation.

(B)

Applicability and Definitions. Any person who, because of a disability, requires a reasonable accommodation in the application of a zoning law that may be acting as a barrier to equal opportunity for housing, or any person or persons acting on behalf of or for the benefit of, such a person may request such accommodation pursuant to this section. A request for a reasonable accommodation shall be made in the manner prescribed in this section, which shall be the exclusive administrative remedies. As used in this section:

(1)

"Disabled," "disability," "handicap," and other related terms shall be defined as in the Americans with Disabilities Act of 1990, 42 U.S.C. § 12102, the federal Fair Housing Act of 1968, 42 U.S.C. § 3602, 24 C.F.R. part 100, and the Florida Fair Housing Act, Fla. Stat. § 760.22, as may be amended from time to time.

(2)

"Applicant" means the person who seeks an accommodation, regardless of whether the application is filed by that person or by persons acting on his or her behalf or for his or her benefit, or a person or entity operating a facility that is credentialed pursuant to Chapter 397, Florida Statutes, or other state or federal law.

(C)

Application for Reasonable Accommodation. An application for a reasonable accommodation shall provide the following information on forms prescribed by the Director:

(1)

Applicant's name, address, and telephone number;

(2)

That the applicant is disabled or handicapped under the above-referenced federal or state laws; provided, however, that any information related to such disability or handicap shall be kept confidential and exempt to the extent permitted by Florida public records laws;

(3)

Address of the property for which the request for a reasonable accommodation is made;

(4)

The current actual use of the property;

(5)

The zoning regulation, requirement, provision, or policy from which a reasonable accommodation is sought;

(6)

The manner in which the applicant seeks to use the property that is the subject of the requested accommodation, and the effect that the requested accommodation would have on the intended use if granted;

(7)

An explanation as to why the requested accommodation is reasonable and is necessary for the applicant to obtain fair access to, and use of, housing or to have equal opportunity to use and enjoy the subject property;

(8)

A statement from a licensed medical provider, if necessary; provided, however, that any information related to such disability or handicap shall be kept confidential and exempt to the extent permitted by Florida public records laws; and

(9)

Such other information as the Director may require to verify that the applicant is disabled or that the requested accommodation is necessary.

(D)

Review and Approval Procedures. An application for a reasonable accommodation shall be reviewed and decided in accordance with the following procedures:

(1)

Reviewing authority. The Director shall designate a Reasonable Accommodation Evaluator (the "RA Evaluator") to review and decide all applications for reasonable accommodations in consultation with the Department's ADA Coordinator. Appeals of such decisions shall be permitted only in accordance with the procedures below and shall be decided by the Director, whose decision shall be final, notwithstanding any other provisions of the code governing appeals of administrative decisions.

(2)

Decision. The RA Evaluator shall make a written determination within 21 days of the filing of a complete reasonable accommodation application, as determined by the Director, and shall either grant, grant with modifications, or deny the application.

(a)

The decision shall be made in accordance with the review criteria set forth below and, when necessary, shall involve consultation with the applicant or, where appropriate, the person or persons acting on behalf of, or for the benefit of, the applicant.

(b)

The RA Evaluator may impose any conditions of approval deemed reasonable and necessary, including the condition that the accommodation shall not run with the land and shall terminate when the applicant no longer resides at the subject property, to ensure that the accommodation does not result in negative or detrimental impacts, including to the County, its land use regulatory scheme, or the neighborhood and uses surrounding the applicant's property.

(3)

Review criteria. The written decision to grant or deny a request for a reasonable accommodation shall be consistent with the above-referenced federal and state laws and shall be based on consideration of the following criteria:

(a)

Whether the requested accommodation is necessary to make specific housing available to an individual with a disability in accordance with federal or state law;

(b)

Whether the requested accommodation, if granted, would alleviate the effect of the applicant's disability on the applicant's lawful use of the property;

(c)

Whether the requested accommodation is tailored to meet the applicant's need without providing undue benefit to the applicant;

(d)

Whether the requested accommodation, if granted, would impose an undue financial or administrative burden on the County;

(e)

Whether the requested accommodation, if granted, would result in a fundamental or detrimental alteration to the County's land use regulatory scheme, including its comprehensive planning and zoning regulatory framework, or create any negative or detrimental impacts on the neighborhood and surrounding uses; for purposes of this paragraph, it shall be a rebuttable presumption that an accommodation that, but for this process, would otherwise require a (i) district boundary change, (ii) use variance, (iii) special exception, (iv) unusual use, (v) non-use variance of more than 50 percent, or (vi) other request that requires public hearing prior to approval results in a fundamental alteration, and this list shall not be construed to limit the authority to determine that another type of request also creates a fundamental alteration; and

(f)

Whether a sufficient alternative to the initial request exists, if the request is determined to have negative or detrimental impacts based on the foregoing criteria.

(E)

Notice of Approval of Reasonable Accommodation. Within 14 days of a written decision to grant or grant with modifications an application for reasonable accommodation, mailed notice shall be provided to all property owners of record, as reflected on the Miami-Dade County Property Appraiser's tax roll, located within a 100-foot radius of the property that is the subject of the request, or such greater distance as the Director may prescribe.

(1)

This notice shall identify the property subject to the accommodation and shall describe the nature of the accommodation granted, along with the conditions of approval, if any.

(2)

The notice shall also indicate that any aggrieved person may appeal the decision to the Director within 30 days of the date of the notice and that the Director's decision shall be final.

(F)

Appeal of Determination. An aggrieved or adversely affected party may appeal the RA Evaluator's decision to the Director in accordance with the following procedure:

(1)

Time to appeal.

(a)

The applicant may file an appeal within 30 days of the date of the RA Evaluator's written decision.

(b)

Any other aggrieved or adversely affected party may appeal the RA Evaluator's decision within the greater of 30 days of the date of the written decision or of the date of the mailed notice required by this section.

(2)

Filing the appeal. Appeals shall be filed with the Department on a form prescribed by the Director. Where the appeal is filed by a party other than the applicant, the Department shall provide the applicant written notice of such appeal, and the applicant may submit a written response within 30 days of the date of such written notice.

(3)

Director's decision. Within 60 days of the date the appeal is filed or the date the applicant submits a written response, whichever is greater, the Director shall approve or deny the appeal and may affirm, modify, or reverse the decision under review.

(a)

The Director's decision shall be consistent with the above-referenced federal and state laws and shall consider the review criteria set forth above, the stated basis for the appeal, and the applicant's response, if any.

(b)

Except as provided in this section, the Director's decision shall be set forth in writing and shall be final, notwithstanding any other provisions of the code governing appeals of administrative decisions.

(4)

Presentation of request to applicable zoning board. Where the RA Evaluator denies a requested accommodation because it would fundamentally or detrimentally alter the County's land use regulatory scheme or it necessitates a zoning request that requires a public hearing, then, in lieu of appealing to the Director, the applicant may file an application for public hearing and may request that the applicable zoning board consider the application based on the criteria set forth in this section, in addition to any other criteria that may govern the requested zoning action. The Department's recommendation to the applicable zoning board shall also include analysis based on the criteria set forth in this section. If the applicant appeals the RA Evaluator's decision to the Director and the Director does not grant the requested accommodation, then the applicant may thereafter present the request to the applicable zoning board in accordance with this paragraph.

(G)

Other Zoning Applications. If the project for which the request for accommodation is made also independently requires other zoning approvals, actions, or permits pursuant to this Chapter (including, but not limited to: district boundary change, special exception, unusual use, non-use variance, administrative modification, or administrative site plan review), then the applicant may elect the order in which to submit such applications or may submit them concurrently. The request for reasonable accommodation shall be reviewed and processed in accordance with the procedures and requirements of this section, while such other applications shall be reviewed and processed in accordance with such other provisions of this Chapter as may apply.

(H)

Fees.

(1)

There shall be no fee for an application requesting reasonable accommodation from the RA Evaluator in accordance with this Section.

(2)

There shall be no fee for an applicant's appeal of the RA Evaluator's decision in accordance with this Section. All other parties appealing the RA Evaluator's decision may be assessed a fee established by implementing order approved by the Board of County Commissioners.

(3)

If the project for which the request is being made includes requests for other approvals or permits, such other application fees shall continue to apply.

(4)

If an applicant opts to present to the zoning board a request for accommodation that the RA Evaluator or the Director has denied pursuant to this Section because it would fundamentally or detrimentally alter the County's land use regulatory scheme or it necessitates a zoning request that requires a public hearing, then the application fees for zoning hearing applications shall continue to apply.

(I)

Exhaustion of remedies.

(1)

To the extent permitted by federal and state laws, any applicant that is aggrieved or adversely affected by any decision or determination of an administrative official shall make a good faith effort to exhaust the administrative remedies prescribed in this section prior to applying to any enforcing agency or court for relief.

(2)

No other party that is aggrieved or adversely affected by any decision or determination or an administrative official may apply to any court for relief unless such person has first exhausted the remedies provided for in this Section and taken all available steps provided for herein.

(Ord. No. 19-50, § 11, 6-4-19)

(a)

The Board of County Commissioners shall by resolution adopt, approve and ratify the district boundary maps as originally adopted by Resolution No. 895 of August 2, 1938, and as modified, amended and changed by subsequent resolutions, and the Director shall continue to maintain and keep on file with the Department such maps showing thereon the boundaries of districts. The district boundary maps shall be amended, modified, and changed by resolution of the County Commission or Community Zoning Appeals Board as hereinafter provided, and shall be prima facie evidence of the boundaries of districts.

(b)

As of [insert effective date of this ordinance], for each Urban Center or Urban Area District, the regulating plan maps for each district, which previously had been incorporated within each ordinance adopting regulations for that district, and which may have been previously amended by ordinance adopted by the County Commission, shall thereafter be maintained by the Director and kept on file with the Department and shall be amended, modified, and changed by resolution of the County Commission as hereinafter provided. Each regulating plan map maintained on file with the Department shall be prima facie evidence of the boundaries of each element of that regulating plan.

(Ord. No. 60-14, 4-19-60; Ord. No. 61-30, § 1, 6-27-61; Ord. No. 96-127, § 34, 9-4-96; Ord. No. 16-91, § 31, 9-7-16)

Editor's note— Section 33-3 refers to the zoning maps on file in the office of the Building and Zoning Department and provides that changes in the boundaries shall be made in accordance with appropriate law.

(a)

There are hereby established multiple Community Zoning Appeals Boards whose boundaries shall coincide with the boundaries of Community Councils established pursuant to the Code of Miami-Dade County. The Community Councils shall serve as Community Zoning Appeals Boards and shall have jurisdiction over zoning applications as provided in this Chapter. Each member shall be a qualified elector of Miami-Dade County, with an outstanding reputation for civic interest, community welfare, integrity and responsibility; provided, no member shall be employed by Miami-Dade County, or be a member of the County Commission. The seven (7) members of each Community Zoning Appeals Board shall serve without compensation but shall be entitled to reimbursement for necessary expenses incurred in the performance of their official duties, upon approval of the County Commission.

(b)

These boards are created and established pursuant to Section 4.08 of the Home Rule Charter, and for the purpose of facilitating the zoning powers granted by the Home Rule Charter to the Board of County Commissioners, and to provide a board to hear, consider and review appeals from the zoning regulations or decisions of an administrative official, and to take appropriate action as in this article provided and limited.

(c)

A Community Zoning Appeals Board member, whether elected or appointed, shall be referred to as a "board member." The terms "councilman," "councilwoman," and "councilperson" shall not be used in reference to such a board member.

(Ord. No. 60-14, 4-19-60; Ord. No. 61-30, § 1, 6-27-61; Ord. No. 64-39, § 17, 9-1-64; Ord. No. 64-65, § 1, 12-15-64; Ord. No. 68-51, § 1, 9-19-68; Ord. No. 96-127, § 35, 9-4-96; Ord. No. 20-41, § 2, 5-5-20)

The terms of office for members of the Community Zoning Appeals Boards shall be the same as the terms established for members of Community Councils. Removals, resignations, and vacancies shall be governed by Article IV of Chapter 20.

(Ord. No. 60-14, 4-19-60; Ord. No. 61-30, § 1, 6-27-61; Ord. No. 64-39, § 18, 9-1-64; Ord. No. 65-7, § 1, 1-26-65; Ord. No. 67-15, § 11, 3-7-67; Ord. No. 68-51, § 2, 9-19-68; Ord. No. 96-127, § 35, 9-4-96; Ord. No. 23-8, § 3, 2-7-23)

(A)

No member of a Community Zoning Appeals Board may appear on behalf of a third person before another Community Zoning Appeals Board or before the County Commission sitting in its capacity as the zoning authority pursuant to Chapter 33, Code of Miami-Dade County.

(B)

No member of a Community Zoning Appeals Board shall appear at any public hearings or meetings before the Board of County Commissioners or any other federal, state, or local board or tribunal, to advocate concerning any zoning application that was heard by, or that could reasonably be expected to be heard by, any Community Council.

(C)

Violation of this section shall constitute grounds for removal pursuant to Section 20-43.2

(Ord. No. 99-64, § 1, 6-8-99; Ord. No. 05-139, § 1, 7-7-05)

(A)

The Director shall serve as secretary for the Community Zoning Appeals Boards, shall be in attendance at all meetings as an advisor and be permitted to propound questions and give evidence; provided, the Director shall have authority to designate a staff member of the Department to act in the Director's stead.

(B)

Meetings of the Community Zoning Appeals Boards shall be held, where practical, in the area of each Community Zoning Appeals Board's jurisdiction at a time and place determined by the Director.

(C)

Each Community Zoning Appeals Board shall elect a Chair and a Vice-Chair from its members, each of whom shall serve until a successor is elected.

(D)

Rules and regulations for the Community Zoning Appeals Boards shall be adopted by the County Mayor or the Mayor's designee and approved by the County Commission.

(E)

The Chair, or Vice-Chair, or Acting Chair, may administer oaths and compel the attendance of witnesses in the same manner prescribed in the Circuit Court.

(F)

Voting Requirements. No action shall be taken on any matter before the Community Zoning Appeals Boards unless a quorum of four (4) members is present, and only upon not less than a majority vote of all members present and voting provided however that any approval or denial of any application or portion thereof pursuant to Chapter 33 shall require not less than three (3) votes. When there is an insufficient number of votes to either approve or deny an application, the result shall be deemed a tie vote. Whenever a tie vote occurs, and no other available motion on the application is made and approved before the next application is called for consideration or before a recess or adjournment is called, whichever occurs first, the matter shall be carried over to the next regularly scheduled meeting.

(G)

Minutes will be kept of all meetings and proceedings and shall include and state the vote of each member on each question, and the motion shall state the reason upon which it is made; such reason or reasons being based upon the prescribed guides and standards and good zoning and planning principles. If a member is absent from voting, the minutes shall so indicate. The Community Zoning Appeals Boards shall keep accurate records of their public hearings which shall be filed, together with their minutes and resolutions, with the Department, and the same shall be open for public inspection at reasonable times and hours.

(H)

The Director shall furnish from the Department such staff as may be necessary to assist and advise the Community Zoning Appeals Boards in the fulfillment of their duties, and is authorized to retain a qualified reporter to record and transcribe the public hearing proceedings of the Community Zoning Appeals Board, and shall provide County transportation for such Board for the purpose of making inspections of sites involved in zoning applications.

(Ord. No. 60-14, 4-19-60; Ord. No. 61-30, § 1, 6-27-61; Ord. No. 62-18, § 1B, 12-4-62; Ord. No. 64-3, § 1, 2-4-64; Ord. No. 64-39, § 19, 9-1-64; Ord. No. 64-54, § 1, 10-23-64; Ord. No. 64-65, § 2, 12-15-64; Ord. No. 66-66, § 2, 12-20-66; Ord. No. 68-51, § 3, 9-19-68; Ord. No. 72-99, § 2, 12-19-72; Ord. No. 79-104, § 1, 12-4-79; Ord. No. 80-20, § 1, 3-4-80; Ord. No. 91-19, § 2, 2-19-91; Ord. No. 91-20, § 1, 2-19-91; Ord. No. 96-127, § 35, 9-4-96; Ord. No. 97-16, § 3, 2-25-97; Ord. No. 11-62, § 2, 8-2-11)

(a)

All hearings before the Community Zoning Appeals Board or the Board of County Commissioners shall be initiated by the filing with the Department an application on forms prescribed by the Director, executed and sworn to by the owner or owners of at least seventy-five (75) percent of the property described in the application, or by tenant or tenants, with owner's written sworn-to consent or by duly authorized agents, evidenced by a written power of attorney, if not a member of the Florida Bar, or by the Director, or by any person aggrieved by an order, requirement, decision or determination of an administrative official when appealing the same, or by anyone desiring an amendment or repeal to the zoning regulations. All properties described in one (1) application must be contiguous and immediately adjacent to one (1) another, and the Director may require more than one (1) application if the property concerned contains more than forty (40) acres, or the fee paid for one (1) application would not equal the cost of processing the same. Only applications which the Community Zoning Appeals Board or the Board of County Commissioners are authorized to consider and act upon shall be accepted for filing.

(b)

Applications which are to be considered by the Community Zoning Appeals Boards in accordance with this chapter shall be assigned by the Director to the Community Zoning Appeals Board which has jurisdiction based upon the location of the property which is encompassed by the application. In the event that the property which is encompassed by the application is located in more than one (1) Community Zoning Appeals Board's district the application shall be heard directly by the County Commission.

(c)

Whenever any hearing is initiated by the Director or the Zoning Official, pursuant to this section, the County Mayor may order that no building permits shall be issued for any construction work on the property involved in the hearing, until the hearing has been finally concluded in accordance with the provisions of this Code. Should the County Mayor issue such an order the administrative personnel shall schedule the application for the first public hearing date after appropriate legal notice.

(Ord. No. 60-14, 4-19-60; Ord. No. 61-30, § 1, 6-27-61; Ord. No. 69-88, § 1, 12-3-69; Ord. No. 70-39, § 1, 5-13-70; Ord. No. 70-80, § 1, 10-27-70; Ord. No. 72-53, § 1, 9-19-72; Ord. No. 74-20, § 2, 4-3-74; Ord. No. 83-60, § 1, 7-19-83; Ord. No. 91-91, § 1, 9-16-91; Ord. No. 95-215, § 1, 12-5-95; Ord. No. 96-127, § 35, 9-4-96; Ord. No. 97-16, § 3, 2-25-97; Ord. No. 97-106, § 1, 7-8-97; Ord. No. 09-76, § 4, 9-1-09; Ord. No. 11-86, § 2, 11-15-11; Ord. No. 13-16, § 5, 2-5-13)

Note— According to Ordinance No. 97-66, § 1, adopted May 20, 1997, notwithstanding the provisions of Section 42 of Ordinance No. 97-127, all zoning applications that were filed prior to February 4, 1997, but have not been advertised for public hearing as of the effective date of this ordinance shall be heard by the appropriate Zoning Appeals Board if such hearing is otherwise within the jurisdiction of the Community Zoning Appeals Board. Further, all zoning applications pending before the Zoning Appeals Board and the Board of County Commissioners that have not been concluded prior to July 31, 1997, and that are otherwise within the jurisdiction of the Community Zoning Appeals Boards shall be heard by the appropriate Community Zoning Appeals Board, if necessary, readvertising shall be accomplished at the expense of the County. It is provided, however, that all appeals from the Zoning Appeals Board shall continue to be heard by the Board of County Commissioners.

(a)

Courtesy notice of filing. When an application as prescribed by Sections 33-304 and 33-309 has been filed hereunder, the Director shall, no later than 30 days after filing, at the cost of the applicant, provide mailed courtesy notice of such filing to property owners of record within the radius specified in subsection (d).

(1)

The failure to mail or receive this courtesy notice shall not affect any action or proceeding taken hereunder.

(2)

The courtesy notice shall include the applicant's name, the processing number, the property size, the location (and street address, if available) of the property, a general description of the action requested in the application, a statement explaining where information about the application can be obtained electronically, and a statement that the application was filed and is being reviewed by the Department and that a future notice will be provided prior to the public hearing thereon.

(3)

No later than April 30, 2021, the Department shall provide a method for the public to subscribe to receive electronic updates as to the status of each application and shall include the subscription instructions in the courtesy notice of filing.

(4)

The notice shall additionally state and make clear that any interested person is entitled to discuss the application with the County employees processing and reviewing the application to the same extent as the applicant is so entitled and that the application may change during the hearing process.

(5)

The courtesy notice provided in this paragraph shall not be required for appeals filed in accordance with Section 33-313 or 33-314.

(b)

Director's recommendation. Applications filed hereunder shall be promptly transmitted to the appropriate board, together with the written recommendation of the Director.

(1)

Where applicable, the Developmental Impact Committee shall issue its recommendation, which shall include a statement of the Director as to the application's relationship to the Comprehensive Development Master Plan.

(2)

All such recommendations shall state all facts relevant to the application, including an accurate depiction of known living, working, traffic, and transportation conditions in the vicinity of the property that is the subject of the application, and also a description of all projected effects of the proposed zoning action on those conditions. Before reaching a conclusion, each recommendation shall list all known factors both in favor of and against each application.

(3)

All such recommendations shall be signed and considered final no earlier than 30 days prior to the public hearing to give the public an opportunity to provide information to the staff prior to the recommendations becoming final. This shall not preclude earlier, preliminary recommendations.

(4)

All documents of the County departments evaluating the application, which documents pertain to the application, are open for public inspection to applicants or other interested persons.

(c)

Required notices of hearing. No action on any application shall be taken by the Community Zoning Appeals Boards or the Board of County Commissioners, until a public hearing has been held upon notice of the time, place, and purpose of such hearing, the cost of said notice to be borne by the applicant. Except as expressly provided herein, the following notices shall be provided no later than 14 days prior to the public hearing:

(1)

Newspaper advertisement. Notice shall be published in a newspaper of general circulation in Miami-Dade County, and said newspaper advertisement shall contain the date, time, and place of the hearing, the applicant's name, the processing number, the property size, the property's location (and street address, if available), and nature of the application, including all specific variances and other requests.

(2)

Mailed notice. Mailed notice shall be sent to property owners of record within the radius specified in subsection (d), and said mailed notice shall contain the same information as the newspaper advertisement, except that variances and other requests may be summarized in a concise, abbreviated fashion.

(3)

Requirements for multiple-frontage properties. For properties with more than one frontage, each required notice shall include both the mailing address and identification of the street or intersection of any additional frontage.

(4)

Notices for application initiated by the Director. Notwithstanding any other provision in this section to the contrary, where a zoning application is initiated by the Director as provided in Section 33-309, the time for publishing, mailing, and posting the notices required by this subsection shall be no later than 30 days prior to the hearing.

(d)

Mailed notice radius. Mailed notice shall be accomplished by placing in the United States mail the notice required by subsection (c)(2) to all property owners of record, as reflected on the Miami-Dade County Property Appraiser's tax roll as updated, within the following radius of the property described in the application:

(1)

One mile for: Approvals of or modifications to Developments of Regional Impact ("DRI").

(2)

One-half mile for: Applications, other than DRIs, required to be reviewed by the Development Impact Committee; or for district boundary changes, use variances, special exceptions, or unusual uses, except for those that are specifically itemized in subsection (d)(4).

(3)

For modification or elimination of conditions or restrictive covenants, or parts thereof, after public hearing, the same radius of the property as required to be noticed for zoning action imposing or accepting the condition or restrictive covenant sought to be modified or eliminated.

(4)

500 feet for: District boundary change involving residential uses of less than 10 units, or a change of prefix within BU (Business) or IU (Industrial), or use variance involving such a use prefix change; unusual use for outdoor patio dining, outdoor display, adult congregate living facility, day nursery, convalescent home, day camp, home for the aged, institution for the handicapped, kindergarten, nursing home, retirement village, entrance feature, mobile home as watchman's quarters, bathing beach; special exception for resubdividing/refacing of platted lots, servant's quarters in RU-1 district, convalescent home, eleemosynary and philanthropic institution in RU-4 districts, dude ranch in AU district, or temporary farm labor housing in AU district; or all other applications for zoning action not specified in paragraphs (d)(1), (2), (3), or (4).

(5)

The Director may prescribe a greater radius distance for mailed notice than is prescribed by this subsection if the Director determines that the projected impact of the application warrants such greater notice.

(e)

Courtesy notices of hearing. The following courtesy notices shall be provided no later than 14 days prior to the public hearing:

(1)

Courtesy posting of subject property. A sign or signs shall be posted on the property that is the subject of the application in a manner conspicuous to the public, which posted signs shall contain the same information as the newspaper advertisement.

(i)

The failure to provide this courtesy posting shall not affect any action or proceeding taken hereunder.

(ii)

The property owner shall be responsible for ensuring that each sign is maintained on the site until completion of the public hearing and for removal of each sign within two weeks following completion of the public hearing.

(iii)

To determine the number of posted signs required under this subsection, the Director shall consider the size and configuration of the property.

(2)

Courtesy notice to homeowners' association. A courtesy notice of hearing shall also be mailed to the president or other presiding officer of any homeowners' association having any member who resides within the area of mailed notice described in subsection (d), when such residency is shown upon a current updated notice filed with the Director.

(i)

The failure to mail or receive this courtesy notice shall not affect any action or proceeding taken hereunder.

(ii)

The Director shall establish and maintain a process by which homeowners' associations may provide notice of the areas in which their members reside.

(iii)

Homeowners' associations shall keep these notices current by updating them in accordance with procedures to be prescribed by the Director.

(f)

Evidence of compliance with notice requirements. The person or persons responsible for providing the notices addressed in subsections (a), (c), and (e) shall attach to the application file a declaration or other evidence setting forth that they have complied with said subsection.

(g)

Consequence for failure to provide required notice. Failure to provide the notices required by subsection (c) renders voidable any hearing held on the application. The failure to provide courtesy notices shall not render a hearing voidable.

(h)

Director's discretion to expand information in notices. The Director shall have the discretion to expand any of the notice provisions contained in this section to provide more information if the Director determines that the complexity, projected impact, or other unusual circumstance of the application warrants requiring such additional information in one or more of the required notices.

(Ord. No. 60-14, 4-19-60; Ord. No. 61-30, § 1, 6-27-61; Ord. No. 64-30, § 1, 7-21-64; Ord. No. 64-65, § 3, 12-15-64; Ord. No. 74-20, § 3, 4-3-74; Ord. No. 74-40, § 2, 6-4-74; Ord. No. 75-47, § 4, 6-18-75; Ord. No. 87-29, § 1, 5-19-87; Ord. No. 89-129, § 1, 12-19-89; Ord. No. 94-200, § 1, 11-1-94: Ord. No. 95-26, § 1, 2-7-95; Ord. No. 95-180, § 1, 10-5-95; Ord. No. 95-215, § 1, 12-5-95; Ord. No. 96-127, § 35, 9-4-96; Ord. No. 98-175, § 1, 12-3-98; Ord. No. 00-31, § 2, 2-24-00; Ord. No. 03-93, § 2, 4-22-03; Ord. No. 09-76, § 2, 9-1-09; Ord. No. 11-86, § 3, 11-15-11; Ord. No. 13-16, § 6, 2-5-13; Ord. No. 14-38, § 1, 4-8-14; Ord. No. 21-6, § 2, 1-21-21; Ord. No. 21-8, § 1, 1-21-21)

A.

Standards. The Director is authorized to consider and approve applications to modify or eliminate any condition or part thereof which has been imposed by any final decision adopted by resolution, and to modify or eliminate any restrictive covenant, or part thereof, accepted at public hearing, where the requirements of at least one of the following subsections have been demonstrated. Upon demonstration that such requirements have been met, an application may be approved as to a portion of the property encumbered by the condition or the restrictive covenant where the condition or restrictive covenant is capable of being applied separately and in full force as to the remaining portion of the property that is not a part of the application and both the application portion and the remaining portion of the property will be in compliance with all other applicable requirements of prior zoning actions and of this chapter.

I.

Substantial Compliance With Previous Approval. The Director shall approve an application to modify or eliminate a condition or part thereof, or a restrictive covenant or part thereof, where it is demonstrated that the proposed modification or elimination will result in substantial compliance with the previous zoning action regarding a site plan, as demonstrated by all of the following:

(A)

Development density and intensity have not materially changed, in that:

1.

the number of buildings is not increased by more than 10 percent;

2.

the number of stories is the same or fewer;

3.

the height of the building(s) is the same or less;

4.

the number of units is the same or fewer;

5.

the lot coverage and floor area ratio are the same or less;

6.

the number of bedrooms and corresponding parking spaces may be increased or decreased by as much as 10%, based on the entire plan, provided the plan complies with all other requirements of this subsection and of this chapter; and

7.

density or intensity (floor area ratio) may be transferred from one building to another or from one stage of development to another, provided that the total floor area ratio is not changed; and

8.

the number of students is the same or fewer where there is no expansion of school hours or no increase in vehicular trips is generated above that generated by the approved school plan.

(B)

Design has not materially changed, in that:

1.

the roadway patterns, including ingress-egress points, are in the same general location as shown on the original plans, and are no closer to the rear or interior side property lines than shown on the original plans;

2.

the parking area is in the same general location and configuration;

3.

the building setbacks are the same or greater distance from perimeter property lines, except that the building setbacks for detached single-family development, zero lot line, rowhouse, townhouse and cluster development may also be decreased, provided that such decrease is limited such that the resulting setback distance will be the greater of either

(a)

the underlying zoning district regulations, or

(b)

any condition or restrictive covenant regulating the setback for which a substantial compliance determination is sought;

4.

the landscaped open space is in the same general location, is of the same or greater amount, and is configured in a manner that does not diminish a previously intended buffering effect;

5.

the proposed perimeter walls and/or fences are in the same general location and of a comparable type and design as previously approved;

6.

elevations and renderings of buildings have substantially similar architectural expressions as those shown on the approved plans, except that single use outparcel buildings fronting on section line. half-section line, or quarter-section line roads in business zoning districts shall not be subject to this requirement;

7.

recreational facilities, if shown on plans approved by a prior zoning action, either remain the same or are converted from one recreational use to another;

8.

if recreational facilities were not shown in the approved plans, they may be added, provided there is no increase in lot coverage or decrease in required open space and such facilities are located internally within the proposed development;

9.

if a variance for signage has been granted, the proposed sign(s) are no greater in size and are placed in the same general location on the site as approved by zoning action. An entrance sign location may be moved the same proportional distance as a relocated entrance drive;

10.

the proposed changes do not have the effect of creating any noncompliance or nonconformity with the strict application of the Zoning Code that were not previously approved at public hearing, or of expanding the scope of existing variances, alternative site development options, or other approvals pursuant to alternative development standards such that they would differ to a greater degree from the strict application of the zoning code;

11.

additional outparcels may be added where:

(a)

there is no increase in the project's total floor area ratio or lot coverage;

(b)

there is no reduction in the total amount of landscaped open space; and

(c)

addition of the outparcel does not result in noncompliance with any other provision of this subsection on any other portion of the subject property.

12.

reductions in the number of parking spaces on the site are permitted if sufficient parking spaces are provided to satisfy the requirements of this Code.

(C)

The slope of any lake for which a modification is requested complies with Section 33-16 and all other applicable provisions of this Code.

II.

Reformation of Resolutions and Declarations of Restrictive Covenants to Correct Clerical or Scrivener's Errors.

(A)

The Director shall approve an application to reform a clerical or scrivener's error, in a prior zoning action, including an error in an application, declaration of restrictive covenants accepted upon public hearing, or notice, which error causes the zoning action not to accurately reflect the board's intent, and where it is demonstrated that all of the following requirements are met:

1.

the reformation shall not include a change of judgment, policy, or prior intent of the board;

2.

prior to the conclusion of the public hearing at which the zoning action for which reformation is sought was taken, the current applicant either did not know of the error, or knew of the error and made it known to the adopting board;

3.

the reformation of the previous resolution or declaration is essential to insure that the zoning action reflects the intent of the adopting board;

4.

the record, including, but not limited to, the staff recommendation, minutes, and motion, evidences the clear intent of the board;

5.

the substance of the decision of the board was evident at the time of the adoption of the zoning action, and there was no intent to deceive the public or the board on the part of the current applicant at any time;

6.

failure to approve the reformation would lead to an unjust result;

7.

the error in the prior zoning action did not mislead anyone in a way that would cause them to be prejudiced by the reformation; and

8.

any errors related to public notice did not affect the legal sufficiency of the required notice.

(B)

Notwithstanding the foregoing provisions, the Director, within thirty (30) days of the transmittal of a resolution, may reform a clerical or scrivener's error in a zoning action including a declaration of restrictive covenants accepted upon public hearing, without public notice, if:

1.

the error is not related to public notice, and

2.

the error causes the resolution or declaration as written to inaccurately reflect the clear decision of the board.

(C)

A reformed zoning action shall relate back to the original zoning action and the effective date of the corrected language shall be deemed to be the same as the effective date of the previous resolution.

III.

Modification or Elimination of Conditions and Restrictive Covenants Associated with Voluntarily Abandoned Zoning Actions. The Director shall approve an application to modify or eliminate a condition or part thereof, or a restrictive covenant or part thereof (except where the covenant requires a public hearing), where it is demonstrated by the following that the condition, restrictive covenant or part thereof was imposed to mitigate the adverse impacts of a zoning action which has been entirely and voluntarily abandoned, in that:

(A)

the applicant has provided a sworn affidavit stating that the applicant has sufficient title and authority to abandon the development rights under the zoning action for the property for which the modification or elimination is sought, that the applicant intends to abandon the zoning action and all rights thereunder, and that no material changes to the character or use of the land have ever been undertaken pursuant to the zoning action;

(B)

the development rights granted by the zoning action have been voluntarily abandoned in writing in a form approved by the Director;

(C)

the zoning action which imposed or accepted the condition or restrictive covenant was not a district boundary change; and

(D)

abandonment of the zoning action will not cause the subject property to fail to comply with any applicable provision of this Code or the Comprehensive Development Master Plan.

IV.

Modification or Elimination of Conditions and Restrictive Covenants That Are Satisfied or Moot. The Director shall approve an application to modify or eliminate a condition or part thereof, or a restrictive covenant or part thereof (except where the covenant requires a public hearing), where it is demonstrated by the following that the condition, restrictive covenant or part thereof either is satisfied or is moot:

(A)

Satisfied conditions, covenants, or restrictions. The requirements imposed by a condition, restrictive covenant or part thereof do not create a continuing obligation, and are fully completed or satisfied; and, in the case of a restrictive covenant, any procedural or approval requirement set forth in the covenant is satisfied. Applications under this paragraph must be accompanied by a sworn affidavit that the conditions of this subsection have been satisfied.

(B)

Moot conditions, covenants, or restrictions. The condition, restrictive covenant or part thereof is moot in that it can no longer serve the purpose for which it was imposed. A condition, restrictive covenant or part thereof in effect for a period of more than five (5) years shall be determined to be moot upon demonstration of any of the four (4) following:

1.

The purpose of the condition, restrictive covenant or part thereof is apparent from the zoning record of the subject property, including record facts pertaining to the character of the subject property and its immediate vicinity, and the impacts that were projected to be generated by the zoning action at the time the condition or covenant was imposed; and either

(a)

the property subject to the condition or covenant has been developed in a manner or to an extent which does not, and under existing zoning approvals cannot, generate the adverse impacts intended to be prevented or mitigated by the condition or covenant; or

(b)

since the imposition of the condition or covenant, all abutting parcels and the immediate vicinity have been zoned or developed in a manner or to an extent that the impacts previously anticipated or projected to be prevented or mitigated by the condition or restrictive covenant are not, and cannot be, adverse to the abutting parcels or the immediate vicinity.

2.

The purpose of the condition, restrictive covenant or part thereof is not apparent from the zoning record of the subject property, including record facts pertaining to the character of the subject property and its immediate vicinity, and

(a)

the condition, restrictive covenant or part thereof if imposed under current circumstances, would not and could not mitigate or prevent any describable harm or create any describable benefit to the public or to owners or residents of property in the immediate vicinity to a degree that is greater than de minimus; and

(b)

the condition or restrictive covenant does not include a date of expiration.

3.

The condition or restrictive covenant for which modification or elimination is sought involves the timing or phasing of development, and

(a)

the development which is the subject of the condition or restrictive covenant is completed; and

(b)

no enforcement action regarding the condition or restrictive covenant has been initiated.

4.

The condition or restrictive covenant for which modification or elimination is sought involves only the timeliness of filing or recording of a document, and

(a)

the failure to file or record the document was due to circumstances beyond the control of the applicant, or to excusable neglect; and

(b)

no one is prejudiced by the modification or elimination of the condition or restrictive covenant regarding the timing of the filing or recording; and

(c)

the document has been recorded or filed subsequent to the deadline set by the original approval, and accepted by the County.

V.

Modification or Elimination of Conditions and Restrictive Covenants When No New Adverse Impacts Will Result. The Director shall approve an application to modify an approved site plan, or modify or eliminate a condition or part thereof, or a restrictive covenant or part thereof (except where the covenant requires a public hearing for such modification), where it is demonstrated by the following that the modification or elimination will not result in a material new adverse impact on the public health, safety, welfare, or aesthetic values:

(A)

The proposed modification or elimination does not contravene or eliminate an express prohibition or timing or phasing requirement contained in the prior zoning action;

(B)

The modification or elimination of the condition, restrictive covenant, or part thereof will not create new adverse impacts. The application will be deemed not to create new adverse impacts upon demonstration of the following:

1.

the modification or elimination will result in an increase of not more than ten (10) percent in trips generated above that generated by the approved development, except that trips generated in excess of ten (10) percent shall be permitted where completely mitigated by increased capacity constructed since the current development was approved. Trip generation shall be calculated based on the most current methodology applied by the County.

2.

the modification or elimination will result in an increase in projected demand for local parks of no more than ten (10) percent or one-fifth (frax;1;5;) acre, whichever is greater, except that demand in excess of ten (10) percent or one-fifth (frax;1;5;) acre shall be permitted if there is sufficient capacity of local parks to accommodate the increase in demand created by the modification;

3.

the modification or elimination will result in an increase in demand placed on public stormwater drainage systems of not more than ten (10) percent;

4.

the modification or elimination will result in a projected increase in the number of school-age children residing on the subject property of not more than ten (10) percent, or not more than three (3) school-age children, whichever is greater;

5.

the modification or elimination will not result in any increase in potable water, sanitary sewer, or solid waste disposal demand for which adequate capacity is not available, or any change in existing or planned facilities will not affect the level of service of potable water, sanitary sewer, or solid waste disposal;

6.

the modification or elimination will not result in any material increase in the risk of potential for discharge or spillage of pollutants, or generation of carbon monoxide at unsafe levels;

7.

the modification or elimination will not result in any material increase in the potential for damage to jurisdictional wetlands;

8.

the modification or elimination will not result in a reduction in the area under tree canopy of greater than ten (10) percent;

9.

the modification or elimination will not result in any material increase in the risk of smoke, fire, odors, gases, excessive noise or vibration;

10.

the modification or elimination will result in an increase in building square footage on the subject property of no more than ten (10) percent for non-residential uses;

11.

the modification or elimination will not result in any additional residential units.

12.

the modification or elimination will result in a building height increase of no more than one (1) story;

13.

the modification or elimination will not result in a decrease in the features or landscaping that buffer the existing use from properties in the immediate vicinity;

14.

the modification or elimination will not result in any material decrease in the privacy enjoyed by adjoining properties;

15.

the modification or elimination will not result in any material diminution of an existing view or vista to any landmark, natural area, or waterbody from any window or door in any residential unit on an adjoining parcel of land;

16.

the modification or elimination will not result in any material increase in the potential for vehicular-pedestrian conflicts;

17.

the modification or elimination will not result in any material and obvious departure from the aesthetic character of the immediate vicinity, taking into account the architectural design, scale, height, mass and building materials of existing structures, pattern of development and open space;

18.

the modification or elimination will not result in any material increase in the area of shadow, or of light from outdoor lighting, cast onto adjacent parcels;

19.

the modification or elimination will not result in any material change in the manner or hours of operation on the subject property so differing from the similar existing or approved uses in the immediate vicinity that the convenient, safe, peaceful or intended uses of such uses is interrupted or materially diminished; it is provided that a modification to a previously approved nonpublic educational or child care facility subject to Article XA, or a public charter school facility subject to Article XI, to modify or eliminate grade levels without modifying the number of students, or that does not otherwise materially increase the number of students, the intensity of the facility use, or the expansion of the facility's operating hours, complies with this requirement;

20.

the modification or elimination will not result in any material change in the density or intensity of use of the subject property so differing from the density or intensity of other existing or approved uses in the immediate vicinity that the subject property would represent an obvious departure from the established development pattern of the immediate vicinity;

21.

the modification or elimination will not result in any material change in the type of use of the subject property so differing from the existing or approved uses in the immediate vicinity that the subject property would represent an obvious departure from the established pattern of use in the immediate vicinity;

22.

the modification or elimination will not result in a use of land that will have a significant adverse impact upon the value of properties in the immediate vicinity; and

23.

the modification or elimination will not result in a material increase in height or volume of open lot uses or facilities, or a material increase in intensity of allowed open lot uses, including, but not limited to, outdoor storage of products, materials or equipment, fleamarkets, carnivals, telecommunications facilities, concrete and asphalt batching plants, landfills and private playgrounds and recreational facilities.

(D)

The subject property complies with all other applicable requirements of prior zoning actions and this Code.

VI.

Modification of Conditions and Restrictive Covenants to Extend Timing or Phasing Deadlines. The Director shall approve an application to modify a condition or part thereof, or a restrictive covenant or part thereof (except where the covenant requires a public hearing) that is related solely to the timing or phasing of development, where the applicant demonstrates satisfaction of one of the following two requirements:

(A)

The applicant has been reasonably diligent in fulfilling the requirements of the condition or restrictive covenant, but is unable to perform within the time set forth in the condition or restrictive covenant, and

1.

No enforcement actions are pending with regard to the timing or phasing condition or covenant; and

2.

The condition or restrictive covenant was not imposed to enforce compliance with an obligation that was imposed or accepted prior to the zoning action in which the condition or restrictive covenant sought to be modified was imposed or accepted; and

3.

The extension of time or modification of phasing is:

a.

no greater than fifty (50) percent of the time frame set forth in the condition or restrictive covenant or six (6) months, whichever is less; or

b.

no greater than ten (10) percent of the number of residential units (if the time frame or phasing schedule is set forth in terms of completion of residential units) or twenty-five (25) residential units, whichever is less; or

(B)

Development pursuant to the zoning action has not proceeded because of a pending appeal or pending litigation regarding the zoning action, and the application secks only an extension of time or modification of phasing for the length of time that development has not proceeded due to such appeal or litigation.

B.

Procedures for Administrative Determinations.

(1)

Applications. An application for administrative determination of substantial compliance with a prior administrative approval or zoning action, for reformation to correct a clerical or scrivener's error, for modification or elimination of conditions and restrictive covenants associated with voluntarily abandoned zoning actions or administrative approvals, or for modification or elimination of conditions or restrictive covenants which are satisfied or moot, or for modification or elimination of conditions or restrictive covenants where no new adverse impacts will result, or for modifications of conditions or restrictive covenants to extend timing or phasing deadlines, or for parts of any of the foregoing, shall be submitted to the Department on a form required by the Director. If the application involves a restrictive covenant, the application shall demonstrate that any procedural or other consent or approval requirements to modify or eliminate the restrictive covenant have been satisfied.

(2)

Notice.

(a)

Within 15 days after the determination, notice of the Director's decision shall be published in a newspaper of general circulation; except that:

(i)

Substantial compliance determinations for administrative site plan reviews shall not be subject to the notice requirements set forth in this section; and

(ii)

All other substantial compliance determinations shall have a notice published in the newspaper of largest circulation in Miami-Dade County or a section or supplement in the newspaper of largest circulation in Miami-Dade County distributed only in the locality where the property subject to the application lies.

(b)

Additionally, mailed written notice shall be provided to all property owners of record, as reflected on the Miami-Dade County Property Appraiser's tax roll as updated, within the same radius of the property as required to be noticed for the zoning action adopting or accepting the condition or restrictive covenant, or such greater distance as the Director may prescribe, for the following types of administrative modification applications:

(i)

Modification or elimination of conditions and restrictive covenants associated with voluntarily abandoned zoning actions or administrative approvals;

(ii)

Modification or elimination of conditions or restrictive covenants that are satisfied or moot;

(iii)

Modification or elimination of conditions or restrictive covenants where no new adverse impacts will result; and

(iv)

Modification of conditions or restrictive covenants to extend timing or phasing deadlines.

(3)

Appeals. Any aggrieved person may appeal the Director's decision pursuant to Section 33-314 within thirty (30) days after the date of newspaper publication. For purposes of this section, an applicant for a substantial compliance determination shall not be considered an aggrieved person. If no timely appeal is taken, the decision shall become final, and the necessary changes shall be made upon the zoning maps and records. Any modifications or releases of recorded restrictive covenants, or parts thereof, shall be promptly recorded in the public records of Miami-Dade County, Florida.

(Ord. No. 03-93, § 3, 4-22-03; Ord. No. 13-16, § 7, 2-5-13; Ord. No. 14-24, § 2, 3-4-14; Ord. No. 19-51, § 33, 6-4-19; Ord. No. 24-11, § 5, 2-6-24)

Within thirty (30) days of the filing of an application for an administrative approval pursuant to Section 33-169.1 by the director for the full or partial redevelopment of an existing mobile home park, the Director shall, at the cost to applicant, provide notice in a newspaper of general circulation, and shall post notice in at least four (4) locations on mobile home park property.

If the mobile home park is listed by the applicant as vacant, the applicant shall provide documentation demonstrating the expiration date of the last leasehold in the park and a copy of the closure notice to park residents. The department shall provide closure information to the appropriate state agency.

Notice of the Director's decision shall be published within fifteen (15) days after the determination, at the cost to applicant, in a newspaper of general circulation and posted in at least four locations on the park property. Any aggrieved person may appeal the Director's decision pursuant to Section 33-311 within thirty (30) days after the date of newspaper publication. If no timely appeal is taken, the decision shall become final, and the necessary changes shall be made upon the zoning maps and records.

(Ord. No. 10-58, § 9, 9-21-10; Ord. No. 13-114, § 1, 12-3-13)

In connection with an application for a zoning action or any other development permit involving a declaration of restrictions, covenant in lieu of unity of title, or other recordable instrument, a property owner may submit a development agreement, which shall be governed by the Florida Local Government Development Agreement Act (Sections 163.3220—163.3243, Florida Statutes). The development agreement may be used to ensure, provide, and reserve public facility capacity in accordance with Section 33G-8 of this Code, to encourage a stronger commitment to comprehensive and capital facilities planning, encourage the efficient use of resources, and reduce the economic cost of development pursuant to Section 163.3220(3), Florida Statutes. It is provided, however, that the requirements of chapter 24 and other County environmental regulations must be addressed through the applicable processes set forth in those regulations, and development agreements shall be subject to compliance with those requirements. A development agreement, and amendments thereto or revocations thereof, shall be presented in accordance with the following procedures:

(A)

Public Hearings. As required by Section 163.3225, Florida Statutes, two public hearings shall be required to enter into, amend, or revoke a development agreement. The first public hearing shall be held by the Planning Advisory Board in its capacity as the Local Planning Agency. The second public hearing shall be held by the Board of County Commissioners. If the development agreement, amendment, or revocation is submitted in connection with an application for zoning action requiring public hearing, the development agreement and the zoning application shall be heard on the same day before the Board of County Commissioners in accordance with Section 33-314. In addition to the procedures set forth herein, amendments or revocations shall thereafter be subject to the procedures set forth in Sections 33-313.1 and 33-314.

(B)

Notices. Notice of intent to consider a development agreement shall be provided as follows:

(1)

Notice shall be advertised at least 7 days before each public hearing in a newspaper of general circulation.

(2)

Notice shall be mailed to all affected property owners at least 10 days before the first public hearing. For purposes of this subsection, "affected property owner" means owners of record, as reflected on the Miami-Dade County Property Appraiser's tax roll as updated, of the property that is the subject of the development agreement.

(3)

Notice of the first public hearing shall also be mailed to all property owners of record, as reflected on the Miami-Dade County Property Appraiser's tax roll as updated, of the property within the radius provided in Section 33-310 for notice of an application for district boundary change.

(4)

Except as provided herein, the content and requirements for processing the newspaper and mail notice shall comply with Section 33-310(a). The notice shall specify the location of the land subject to the development agreement, the development uses proposed on the property, the proposed population densities, and the proposed building intensities and height, and shall specify a place where a copy of the proposed agreement can be obtained.

(5)

The day, time, and place at which the second public hearing will be held shall be announced at the first public hearing. The Director may also, in the Director's discretion, require that mailed notice of the second public hearing be provided.

(C)

Contents of development agreement. A development agreement shall include the following:

(1)

A legal description of the land subject to the agreement, and the names of its legal and equitable owners;

(2)

The duration of the agreement;

(3)

The development uses permitted on the land, including population densities and building intensities and height;

(4)

A description of public facilities that will service the development, including who shall provide such facilities; the date any new facilities, if needed, will be constructed; and a schedule to assure public facilities are available concurrently with the impacts of the development;

(5)

A description of any reservation or dedication of land for public purposes;

(6)

A description of all local development permits approved or needed to be approved for the development of the land; as used herein, the term "development permit" shall include building permits and water and sewer permits, but shall not include permits required by chapter 24 or any other County environmental regulations;

(7)

A finding that the development permitted or proposed is consistent with the Comprehensive Development Master Plan and applicable land development regulations; as used herein, the term "land development regulation" shall not include chapter 24 or any other County environmental regulations;

(8)

A description of any conditions, terms, restrictions, or other requirements determined to be necessary for the public health, safety, or welfare of the citizens;

(9)

A statement indicating that the failure of the agreement to address a particular permit, condition, term, or restriction shall not relieve the developer of compliance with the law governing said permitting requirements, conditions, terms, or restrictions;

(10)

A development agreement may provide that the entire development or any phase thereof be commenced or completed within a specific period of time;

(11)

A statement regarding the consents of property owners that will be necessary to approve modifications or revocations to all or part of the development agreement; and the authority of the Director to seek amendment or revocation of a development agreement for noncompliance in accordance with this section, regardless of owners' consents;

(12)

A statement that any person with a legal or equitable interest in land for which a development agreement was entered into with the County, or their authorized representative, shall submit an annual report to the Department of Regulatory and Economic Resources, or its successor agency, on the date specified in the development agreement. The annual report shall include the following information:

(a)

Compliance with the terms of the development agreement; and

(b)

Identification of any substantial changes warranting an amendment or revocation of the development agreement.

(D)

Determination of Noncompliance. If the Director determines that there has been a failure to comply with the terms of the development agreement, the Director may issue a finding of noncompliance, which shall be presented to Board at a public hearing in accordance with Section 33-314(A) of this chapter, with a request from the Director to amend or revoke the development agreement.

(Ord. No. 17-43, § 5, 7-6-17)

(A)

Administrative site plan and architectural review required.

(1)

Purpose and intent. The purpose of administrative site plan review (ASPR) is to encourage logic, imagination, innovation and variety in the design process and thereby ensure the congruity of the proposed development and its compatibility with the surrounding area.

(2)

Prior to the issuance of a building permit for developments requiring ASPR, the Department shall review plans for compliance with the applicable zoning regulations and the site plan review criteria set forth in this section.

(3)

ASPR requirements shall include conformance with the standards contained in the CDMP and this chapter, and substantial compliance with the Urban Design Manual approved by resolution of the Board of County Commissioners.

(4)

Time for review. All plans submitted to the Department for ASPR shall be reviewed and decided by the Department within 21 days from the date the application is processed. The applicant shall have the right to resubmit plans and extend the 21-day period by an additional 21 days upon timely request made in writing to the Department. The Department shall have the right to extend the 21-day period by written notice to the applicant that additional information is needed to process the site plan. Denials shall be in writing and shall specifically set forth the grounds for denial.

(5)

If the plan is disapproved, the applicant may appeal the decision in accordance with the procedures established in this chapter for appeals of administrative decisions relating to administrative site plan review.

(6)

Deferral of site plan review until application for building permit. The following types of developments may defer site plan review until the time of application for building permit:

(a)

In RU-RH, RU-TH, RU-3, RU-3M, RU-4L, RU4M, RU-4, and RU-5 districts, development activity on parcels that are 5 acres or less.

(b)

In BU, RU-4A, and OPD districts, development activity on parcels that are 10 acres or less, and that do not contain any residential uses on the property.

(c)

In IU districts, development activity on parcels that are 20 acres or less, and that do not contain any residential uses on the property.

(B)

Review Criteria. The applicant shall submit supporting exhibits to the Department, which shall include at least the following:

(1)

Dimensioned site plan(s) indicating, as a minimum, the following information:

(a)

Existing zoning on the site and on adjacent properties.

(b)

Lot lines and setbacks.

(c)

Location, shape, size and height of existing and proposed buildings, structures, and entrance features, bike paths, recreational facilities and other physical features that are proposed.

(d)

Existing and proposed fences, walls, architectural accents, or street furniture, if applicable.

(e)

Landscape plans, including specifications of species of plant material, location, and size in accordance with this Chapter and Chapter 18A of this Code.

(f)

Vehicular and pedestrian circulation systems, including connection(s) to existing or proposed roadway and sidewalk system.

(g)

Location of on-street and off-street parking, including type of permeable materials if used on parking lots.

(h)

Location of loading facilities.

(i)

Location of space for storage and collection of solid waste and recyclable material.

(j)

Proposed grades if significantly altered.

(k)

Location of backflow prevention devices and connections.

(l)

Indication of any site design methods used to conserve energy.

(m)

Existing and proposed signs, and locations of advertising or graphic features, if applicable.

(n)

Sketches of design elements to be used for buffering surrounding uses, if applicable.

(o)

Development phase lines.

(2)

Floor plans and elevations of all structures and other major design elements, including total gross square foot area of each floor. Provide isometrics or perspectives. For residential, provide floor plans and elevations for typical units, any recreation buildings, community buildings and other similar structures. Plan(s) for units shall indicate the private outdoor areas (including patio space) for the individual unit(s), as required.

(3)

Figures indicating the following:

(a)

Gross and net acreage (in square feet and acres), less lakes and canals.

(b)

Total square footage for each use by type, as applicable (i.e. residential uses, office uses).

1.

For RU-5, specify total square feet of snack bar facility if proposed.

2.

For RU-TH, specify the size in square feet of the smallest and average townhouse sites.

(c)

Amount of building coverage at ground level in square feet.

(d)

The proposed height and the proposed and required F.A.R. (in square feet), if applicable.

(e)

Total amount of landscaped open space in square feet, including open space provided in the form of green(s) (required and provided); and percent of net land area (required and provided).

(f)

Total trees required and provided in accordance with Chapter 18A.

(g)

Parking required and provided.

(h)

Area to be dedicated for public rights-of-ways.

(i)

Total amount of paved area in square feet.

(j)

Indication of the design of exterior graphics and signage.

(k)

Such other design data as may be needed to evaluate the project.

(l)

For residential uses, provide total number of dwelling units.

(4)

The Director may waive any of the required items because of the nature or timing of the development or because the information cannot be furnished at the time of this review.

(C)

The following criteria shall be utilized in the plan review process:

(1)

Purpose and intent: The proposed development fulfills the objectives of this article.

(2)

Planning studies: Design, planning studies or neighborhood area studies accepted or approved by the Board of County Commissioners that include development patterns, site plan criteria, or environmental design criteria which would apply to the development proposal under review shall be considered in the plan review process.

(3)

Exterior spatial relationships: The three-dimensional air-space volume created by the arrangement of structures and landscape shall produce spatial relationships that function with the intended use of the project and are compatible with the development or zoning in the adjoining area.

(4)

Landscape: Landscape shall be preserved in its natural state insofar as is practicable by minimizing removal of existing vegetation. Landscape shall be used to shade and cool, direct wind movements, enhance architectural features, relate structure design to site, visually screen noncompatible uses, and block noise generated by the major roadways and intense use areas.

(5)

Compatibility: The architectural design and scale of the proposed structures shall be compatible with surrounding existing or proposed uses or shall be made compatible by the use of screening elements.

(a)

Screening elements can include such devices as trees and shrubs, walls and fencing, berming or any combination of these elements.

(b)

For industrial uses, visual buffering shall be provided between parking and service areas and adjacent nonindustrial uses.

(6)

Buffers: Buffering elements in the form of architectural design and landscape design that provide a logical transition to adjoining existing or permitted uses shall be provided.

(7)

Circulation: Pedestrian and auto circulation shall be separated insofar as is practicable, and all circulation systems shall adequately serve the needs of the development and be compatible and functional with circulation systems outside the development.

(a)

For residential uses, a well-defined system shall be designed to allow free movement throughout the development while discouraging excessive speeds. All dwelling units should be located on residential service streets or courts designed to discourage all traffic except that of owner/occupants, their guests, and their services. Townhome/rowhouse developments shall be structured in clearly defined clusters and/or groups of townhouses.

(b)

For industrial uses, vehicular traffic generated from industrial activity should be routed in such a manner as to minimize impact on residential development, if applicable.

(8)

Visibility: No obstruction to visibility at street intersections shall be permitted, and such visibility clearances shall be as required by the Department of Transportation and Public Works or successor department.

(9)

Emergency access: Unobstructed on-site access for emergency equipment shall be provided.

(10)

Parking areas: Building wall extensions, planting, berms or other innovative methods shall be used as a means of minimizing the adverse effect of the visual impact of parking areas. This requirement is in addition to the landscape regulations set forth in this code.

(a)

For residential uses, where parking is provided in a group arrangement, planting, berms or other innovative methods shall be used to minimize the visual impact of parked cars. This requirement is in addition to the requirements of the landscape regulations of Chapter 18A. For townhome/rowhouse developments, private parking shall be in adjacent groups of not more than four spaces, said groups to be separated by the use of landscape elements.

(b)

For commercial uses, when head-in parking is located directly adjacent to a storefront, an anti-ram fixture shall be required in accordance with Section 33-122.

(11)

Open spaces: Open space shall relate to any natural characteristics in such a way as to preserve and enhance their scenic and functional qualities to the fullest extent possible.

(12)

Energy consideration: Site design methods to reduce energy consumption shall be encouraged. Every site conservation method may include siting of structures in relation to prevailing breezes and sun angles and use of landscape materials for shade and transpiration.

(13)

Subtropic architectural characteristics: Architecture and site development should incorporate consideration of the subtropical characteristics of the area. The provision of sun-control devices, shaded areas, vegetation, roof terraces and similar features characteristic of subtropical design shall be encouraged.

(14)

Outdoor furniture: All outdoor furniture shall be designed as an integral part of the overall design of the project.

(15)

Service areas: Service areas which may be provided shall be screened and so located as not to be visible from view.

(16)

Roof installation and facilities: All permitted installations housing mechanical equipment located on the roof shall be screened from ground view and from view at the level in which the installations are located, and shall be designed as an integral part and be harmonious with the building design.

(17)

Signs and outdoor lighting: All outdoor lighting, signs, or permanent outdoor advertising or identification features shall be designed as an integral part of and be harmonious with building design and the surrounding landscape, if applicable.

(18)

Graphics: Graphics, as required, shall be designated as an integral part of the overall design of the project.

(19)

Art display: Permanent interior and exterior art displays and water features should be encouraged in the overall design of the project.

(20)

Visual screening for decorative walls: In an effort to prevent graffiti vandalism, the following options shall be utilized for walls abutting zoned or dedicated rights-of-way:

(a)

Wall with landscaping. The wall shall be setback two and one-half feet from the right-of-way line and the resulting setback area shall contain a continuous extensively landscaped buffer which must be maintained in a good healthy condition by the property owner, or where applicable, by the condominium, homeowners or similar association. The landscape buffer shall contain one or more of the following planting materials:

(1)

Shrubs. Shrubs shall be a minimum of three feet in height when measured immediately after planting and shall be planted and maintained to form a continuous, unbroken, solid, visual screen within one year after time of planting.

(2)

Hedges. Hedges shall be a minimum of three feet in height when measured immediately after planting and shall be planted and maintained to form a continuous, unbroken, solid, visual screen within one year after time of planting.

(3)

Vines. Climbing vines shall be a minimum of 36 inches in height immediately after planting.

(b)

Metal picket fence. Where a metal picket fence abutting a zoned or dedicated right-of-way is constructed in lieu of a decorative wall, landscaping shall not be required.

(21)

Window Height.

(a)

For commercial uses, when head-in parking is located directly adjacent to a storefront, ground floor windowsills shall be placed at a minimum height of 24 inches and a maximum of 48 inches above grade, if applicable.

(22)

Privacy. For residential uses, due consideration of aural and visual privacy shall be evidenced in the design of the overall development and in the design of the individual units.

(Ord. No. 19-51, § 34, 6-4-19; Ord. No. 20-124, § 2, 11-19-20)

(A)

Except as otherwise provided by this chapter, the Community Zoning Appeals Boards ("CZABs") and Board of County Commissioners shall have the authority and duty to consider and act upon applications, as hereinafter set forth, after first considering the written recommendations thereon of the Director or Developmental Impact Committee, as applicable. Provided, however, no such action shall be taken until notice of time and place of the hearing has been provided in accordance with this article. The respective zoning boards are advised that the purpose of zoning and regulations is to provide a comprehensive plan and design to lessen the congestion in the highways; to secure safety from fire, panic and other dangers, to promote health, safety, morals, convenience and the general welfare; to provide adequate light and air; to prevent the overcrowding of land and water; to avoid undue concentration of population; to facilitate the adequate provisions of transportation, water, sewerage, schools, parks and other public requirements, with the view of giving reasonable consideration among other things to the character of the district or area and its peculiar suitability for particular uses and with a view to conserving the value of buildings and property and encouraging the most appropriate use of land and water throughout the County. The respective zoning boards or any of their members may inspect the premises and area under consideration. The Community Zoning Appeals Boards shall have authority over the following zoning applications except where the Board of County Commissioners has direct jurisdiction.

(1)

Minimum square footage requirements. Hear and grant or deny applications to increase or decrease the minimum square footage requirements for building in a particular area, provided, it finds that the increase or decrease would be comparable with that required for the area or surrounding area or that established by improvements in the area or surrounding area.

(2)

Appeal of administrative variances, administrative adjustments; and appeals of administrative determination regarding existing mobile home parks issued pursuant to Section 33-310.2, administrative site plan review substantial compliance determinations, and administrative correction of clerical or scrivener's errors.

(a)

Upon application for, hear and decide appeals where it is alleged there is an error in the granting or denial of an administrative variance, administrative adjustment, administrative determination regarding mobile home park property redevelopment action pursuant to Section 33-169.1, administrative site plan review, determination of substantial compliance, or administrative correction of a clerical or scrivener's error, pursuant to the provisions of this Code. Such administrative decisions shall not include appeals filed pursuant to Sections 2-114.1 through 2-114.4.

(b)

Pursuant to the provisions of Section 33-36.1 any aggrieved property owner in the area may appeal the decision of the Director to the appropriate Community Zoning Appeals Board within fifteen (15) days after the Director's decision is published in a newspaper of general circulation. An aggrieved applicant must file a new application with the appropriate Miami-Dade County Community Zoning Appeals Board pursuant to the provisions of this chapter and must comply fully with the requirements of Section 33-311 "Variances from Other Than Airport Regulations".

(3)

Special exceptions (for all applications other than public charter schools and as provided in Section 33-314), unusual and new uses. Hear application for and grant or deny special exceptions, except for (i) public charter schools, (ii) self-service mini-warehouse storage facilities, and (iii) as otherwise provided in Section 33-314; that is, those exceptions permitted by the regulations only upon approval after public hearing, new uses, and unusual uses, which by the regulations are only permitted upon approval after public hearing; provided the applied for exception or use, including exception for site or plot plan approval, in the opinion of the Community Zoning Appeals Board, would not have an unfavorable effect on the economy of Miami-Dade County, Florida, would not generate or result in excessive noise or traffic, cause undue or excessive burden on public facilities, including water, sewer, solid waste disposal, recreation, transportation, streets, roads, highways or other such facilities which have been constructed or which are planned and budgeted for construction, are accessible by private or public roads, streets or highways, tend to create a fire or other equally or greater dangerous hazards, or provoke excessive overcrowding or concentration of people or population, when considering the necessity for and reasonableness of such applied for exception or use in relation to the present and future development of the area concerned and the compatibility of the applied for exception or use with such area and its development.

(a)

Hear application for and grant or deny unusual uses for Wireless Supported Service Facilities, which by the regulations are only permitted upon approval after public hearing; provided the applied for use, in the opinion of the Community Zoning Appeals Board, would not have an unfavorable effect on the economy of Miami-Dade County, Florida, would not generate or result in excessive noise or traffic, cause undue or excessive burden on public facilities, including water, sewer, solid waste disposal, recreation, transportation, streets, roads, highways or other such facilities which have been constructed or which are planned and budgeted for construction, are accessible by private or public roads, streets or highways, tend to create a fire or other equally or greater dangerous hazards, or provoke excessive overcrowding or concentration of people or population, when considering the necessity for and reasonableness of such applied for use in relation to the present and future development of the area concerned and the compatibility of the applied for use with such area and its development, provided that:

i.

The applicant shall demonstrate that the proposed Wireless Supported Service Facility will cure:

a.

signal interference problems; or

b.

the applicant's lack of wireless service coverage or capacity in the area intended to be served by the proposed Wireless Supported Service Facility

ii.

The applicant shall provide information to permit independent verification of factual data relied upon by the applicant to establish 3(a)(i) above, including, but not limited to the following:

a.

the purpose for the proposed Wireless Supported Service Facility; and

b.

the following technical data for the proposed Wireless Supported Service Facility and for each existing, authorized, pending and proposed adjacent facility:

i.

site name or other reference;

ii.

facility latitude and longitude;

iii.

site elevation;

iv.

for each antenna at each of the included facilities:

1.

height of antenna radiation center;

2.

antenna type and manufacturer;

3.

maximum effective radiated output power, including the maximum total power radiated from all channels;

4.

azimuth of main antenna lobe; and

5.

beam tilt and null-fill of each antenna.

c.

a complete up- and down-link power budget for the proposed Wireless Supported Service Facility, including any differences that may exist with the power budgets of the adjacent facilities, to ensure that all of the gain and loss factors used by the applicant are included in a verification analysis.

d.

complete descriptions of methodology, formulas, data presented in appropriate parameter data units (e.g., Erlangs, Watts, dBm, ft.), existing traffic studies and trend analyses if the proposed facility is intended to cure a lack of capacity, and any other information necessary for an independent engineer to verify statements concerning signal interference or lack of capacity or coverage; and

e.

identification of any equipment that differs from industry standards.

iii.

that the applicant shall reimburse the department for fees charged to the department for independent verification of factual data relied upon by the applicant, as required pursuant to paragraph 3 a ii above.

(4)

(a)

Use variances from other than airport regulations. Upon appeal or direct application in specific cases to hear and grant applications for use variances from the terms of the zoning regulations as will not be contrary to the public interest, where owing to special conditions, a literal enforcement of the provisions thereof will result in unnecessary hardship, and so the spirit of the regulations shall be observed and substantial justice done; provided, that the use variance will be in harmony with the general purpose and intent of the regulation, and that the same is the minimum use variance that will permit the reasonable use of the premises; and further provided, no variance from any airport zoning regulation shall be granted under this subsection; provided, however, no use variance shall be granted permitting a BU or IU use in any residential, AU or GU District, unless the premises immediately abuts a BU or IU District. A "use variance" is a variance which permits a use of land other than which is prescribed by the zoning regulations and shall include a change in permitted density.

(b)

Non-use variances from other than airport regulations. Upon appeal or direct application in specific cases to hear and grant applications for non-use variances from the terms of the zoning and subdivision regulations, the Board (following a public hearing) may grant a non-use variance upon a showing by the applicant that the non-use variance maintains the basic intent and purpose of the zoning, subdivision and other land use regulations, which is to protect the general welfare of the public, particularly as it affects the stability and appearance of the community and provided that the non-use variance will be otherwise compatible with the surrounding land uses and would not be detrimental to the community. No showing of unnecessary hardship to the land is required. For the purpose of this subsection, the term "non-use variances" involves matters such as setback lines, frontage requirements, subdivision regulations, height limitations, lot size restrictions, yard requirements and other variances which have no relation to change of use of the property in question.

(c)

Alternative non-use variance standard. Upon appeal or direct application in specific cases to hear and grant applications for non-use variances from the terms of the zoning and subdivision regulations, upon a showing by the applicant that the variance will not be contrary to the public interest, where owing to special conditions, a literal enforcement of the provisions thereof will result in unnecessary hardship, and so the spirit of the regulations shall be observed and substantial justice done; provided, that the non-use variance will be in harmony with the general purpose and intent of the regulation, and that the same is the minimum non-use variance that will permit the reasonable use of the premises; and further provided, no non-use variance from any airport zoning regulation shall be granted under this subsection.

(5)

Reserved.

(6)

Variances from subdivision regulations. Hear applications for and grant or deny variances from subdivision regulations (Chapter 28 of the Code of Miami-Dade County) in accordance with and pursuant to the authority and standards set forth in Section 28-19 of the code.

(7)

Hear applications to modify or eliminate any condition or part thereof which has been imposed by any final decision adopted by resolution, and to modify or eliminate any provisions of restrictive covenants, or parts thereof, accepted at public hearing, except as otherwise provided in Section 33-314(C)(3); provided, that the appropriate board finds after public hearing (a) that the modification or elimination, in the opinion of the Community Zoning Appeals Board, would not generate excessive noise or traffic, tend to create a fire or other equally or greater dangerous hazard, or provoke excessive overcrowding of people, or would not tend to provoke a nuisance, or would not be incompatible with the area concerned, when considering the necessity and reasonableness of the modification or elimination in relation to the present and future development of the area concerned, or (b) (i) that the resolution that contains the condition approved a school use that was permitted only as a special exception, (ii) that subsequent law permits that use as of right without the requirement of approval after public hearing, and (iii) that the requested modification or elimination would not result in development exceeding the standards provided for schools authorized as a matter of right without the requirement of approval after public hearing. It is further provided, however, that no zoning application to delete or modify, in a manner inconsistent with Section 33-310.1(A)(I)(B)(7), a common open space or common use amenity within a residential site plan that was previously approved upon public hearing shall be approved except upon a two-thirds vote of the members present at the hearing at which the application is decided; this provision shall not apply to an application to modify or delete a condition or restrictive covenant, or parts thereof, within an urban center district or urban area district.

(8)

Hear and grant or deny applications for district boundary changes on individual pieces of property or on a neighborhood or area-wide basis except where the Board of County Commissioners has direct jurisdiction.

(9)

Hear and make recommendations to the Board of County Commissioners on applications for developments of regional impact and related requests, including requests for modifications thereof, as provided by Section 33-314.

(a)

It is provided, however, that the CZABs shall not make recommendations regarding an application for any of the following extensions of a DRI development order, where such application does not contain a request for any other action under this chapter requiring a public hearing apart from those necessary to accomplish the requested extension: an application to extend a commencement date, build-out date, expiration date, phasing deadline, or applicable mitigation requirements for the maximum period of time declared by state law, and related applications for zoning actions to accomplish only the requested extension.

(b)

It is provided, however, that the foregoing exception from CZAB review shall not apply to development orders for which, before December 1, 2011, the County has notified a developer that has commenced any construction within the phase for which mitigation is required that the County has entered into a contract for construction of a facility with funds to be provided from the development's mitigation funds for that phase as specified in the development order or written agreement with the developer.

(10)

The Community Zoning Appeals Boards shall review those plans submitted as part of an application for a planned development. The Community Zoning Appeals Board shall decide if the proposed development is in accordance with the provisions for a planned development and shall diligently consider the recommendations of the Director and the Zoning Official or the Developmental Impact Committee prior to recommending approval, approval with modification, or denial. The Community Zoning Appeals Board shall approve an application for a planned development only when plans and other exhibits are in compliance with the criteria for a planned development and otherwise meet the criteria contained in this section.

(11)

Notwithstanding anything in Section 24-58.1 to the contrary, the Community Zoning Appeals Board shall hear, grant or deny applications for unusual uses or amendments or modifications thereto described in Section 33-13(e) when said unusual uses, amendments or modifications are in connection with a class I or class IV permit application, as defined in Section 24-58.1.

(12)

Hear and make recommendations to the Board of County Commissioners on applications for projects or modifications thereto within the Core Sub-District of the Downtown Kendall Urban Center District as provided by Section 33-314.

(13)

Hear applications to modify or eliminate any condition or part thereof which has been imposed by any final decision adopted by resolution regulating any parcel of land located within the Downtown Kendall Urban Center, the Naranja Community Urban Center, or any other Urban Center zoning districts, where and to the extent that modification or elimination of the condition or part thereof is necessary to allow development conforming in all respects with the Downtown Kendall Urban Center District, the Naranja Community Urban Center District, or any other applicable Urban Center zoning district regulations.

(B)

Conditions, restrictions and limitations.

(1)

In granting any application for increase or decrease in minimum space footage requirements, special exception, new uses or unusual use, use or nonuse variances or variances from airport regulations, the appropriate Community Zoning Appeals Boards may prescribe any reasonable conditions, restrictions and limitations it deems necessary or desirable, in order to maintain the plan of the area and compatibility therewith. The Community Zoning Appeals Boards may revoke, modify or change any resolution heretofore or hereafter adopted granting a special permit or a special exception, new uses, unusual use or variance, if upon, application filed at any time by the Director and after public hearing, the Community Zoning Appeals Board finds that there has been a violation of any imposed conditions, restrictions or limitations in any such resolution; provided, such public hearing shall not be held until published notice provided by Section 33-310 hereof has first been given; provided further, if the Director, upon written request of any aggrieved party, refuses or fails to make such an application, such aggrieved party may request the Board of County Commissioners, through the County Manager, to instruct the Director to do so.

(2)

Any person who shall violate or fail to comply with any conditions, restrictions or limitations contained in any resolution or decision heretofore or hereafter adopted, granting a special permit or special exception, new uses, unusual use or variance or with any of the requirements of such a resolution, shall upon conviction thereof in the appropriate court be punished by a fine not to exceed five hundred dollars ($500.00) or by imprisonment in the County Jail for not more than sixty (60) days, or by both such fine and imprisonment. Each day of violation or noncompliance shall constitute a separate offense.

(C)

Reserved.

(D)

No document prepared or relied upon by an expert shall be admitted into evidence at a public hearing unless such document shall have been filed with the Director at least ten (10) days prior to the public hearing. No expert opinion testimony shall be admitted into evidence at a public hearing unless a written summary of the testimony setting out the substance and basis of such testimony shall have been filed with the Director at least ten (10) days prior to the public hearing.

(E)

Takings and vested rights.

(1)

No argument shall be made or evidence presented to a Community Zoning Appeals Board or the Board of County Commissioners to the effect that a decision may result in a temporary or permanent taking of private property or abrogation of vested rights unless the person making such argument: (1) files a sworn statement and supporting documents pursuant to Section 2-114.1 with the coordinator of the Development Impact Committee not less than forty-five (45) calendar days prior to the first hearing on the application, and (2) exhausts the remedy afforded by Section 2-114.1. Pursuant to Section 33-314(C)(2), the Board of County Commissioners has direct jurisdiction over the application to which such taking or vested rights argument pertains. Any individual or entity having an interest in property which is the subject of a zoning application filed by a County official shall be entitled to file an application for a taking or vested rights determination pursuant to Section 2-114.1 of the Code.

(2)

Any individual or entity having an interest in property which is the subject of a zoning application filed by a County official shall be entitled to file an application for a taking or vested rights determination pursuant to Section 2-114.1 of the Code without payment of a fee. Whenever an application for zoning action is filed by a County official, the County Applicant shall provide notice by certified mail, return receipt requested, to the owners of record of any and all property to which the application pertains. Said notice shall include a copy of Section 33-311 and Section 2-114.1 of the Code. Any claimant having an interest in property subject to a County zoning application who contends that action thereon will constitute a taking or abrogation of vested rights shall file a notice of invoking administrative remedy with the Developmental Impact Committee pursuant to Section 2-114.1(c)(1) of the Code within thirty (30) days after receipt of the certified mail notice required by this section. Said thirty-day filing period may be extended by the County Commission upon a showing of good cause. Application to show good cause shall be upon a form prescribed by the Director and pursuant to the same process used for fee waivers.

(3)

The separate hearing option of Section 2-114.1(d)(5) shall be applicable and no decision contrary to the position of one (1) asserting a taking or abrogation of vested rights shall be final as to such individual or entity unless and until the remedy afforded by Section 2-114.1 has been exhausted or waived.

(F)

Detriments or benefits shall not be denied consideration ont he grounds that they are indirect, intangible or not readily quantifiable. In evaluating the application, among other factors related to the general welfare, whether, and the extent to which:

(1)

The development permitted by the application, if granted, conforms to the Comprehensive Development Master Plan for Miami-Dade County, Florida; is consistent with applicable area or neighborhood studies or plans, and would serve a public benefit warranting the granting of the application at the time it is considered;

(2)

The development permitted by the application, if granted, will have a favorable or unfavorable impact on the environmental and natural resources of Miami-Dade County, including consideration of the means and estimated cost necessary to minimize the adverse impacts; the extent to which alternatives to alleviate adverse impacts may have a substantial impact on the natural and human environment; and whether any irreversible or irretrievable commitment of natural resources will occur as a result of the proposed development;

(3)

The development permitted by the application, if granted, will have a favorable or unfavorable impact on the economy of Miami-Dade County, Florida;

(4)

The development permitted by the application, if granted, will efficiently use or unduly burden water, sewer, solid waste disposal, recreation, education or other necessary public facilities which have been constructed or planned and budgeted for construction;

(5)

The development permitted by the application, if granted, will efficiently use or unduly burden or affect public transportation facilities, including mass transit, roads, streets and highways which have been constructed or planned and budgeted for construction, and if the development is or will be accessible by public or private roads, streets or highways.

(G)

The Community Zoning Appeals Boards may defer action on any hearing in order to inspect the site in question, to refer the matter back to the Developmental Impact Committee for further consideration and recommendation, to refer the matter to any department for its recommendation, or for any other justifiable and reasonable reason.

(Ord. No. 60-14, 4-19-60; Ord. No. 61-30, § 1, 6-27-61; Ord. No. 63-24, § 1, 6-18-63; Ord. No. 64-65, § 4, 12-15-64; Ord. No. 66-66, § 3, 12-20-66; Ord. No. 71-42, § 1, 5-18-71; Ord. No. 72-20, § 2, 3-21-72; Ord. No. 73-28, § 1, 3-20-73; Ord. No. 74-20, § 4, 4-3-74; Ord. No. 74-40, § 3, 6-4-74; Ord. No. 75-47, § 5, 6-18-75; Ord. No. 77-12, § 2, 2-15-77; Ord. No. 77-68, § 2, 9-20-77; Ord. No. 78-10, § 1, 3-21-78; Ord. No. 87-6, § 1, 2-17-87; Ord. No. 87-75, § 2, 11-3-87; Ord. No. 89-10, § 5, 2-21-89; Ord. No. 92-150, § 3, 12-1-92; Ord. No. 94-37, § 2, 3-3-94; Ord. No. 95-215, § 1, 12-5-95; Ord. No. 96-127, § 35, 9-4-96; Ord. No. 97-9, § 2, 2-4-97; Ord. No. 97-198, § 2, 11-4-97; Ord. No. 98-175, § 2, 12-3-98; Ord. No. 99-166, § 4, 12-16-99; Ord. No. 00-31, § 2, 2-24-00; Ord. No. 00-51, § 1, 4-11-00; Ord. No. 01-121, § 1, 7-24-01; Ord. No. 02-56, § 1, 4-23-02; Ord. No. 02-77, § 1, 5-7-02; Ord. No. 02-115, § 1, 6-18-02; Ord. No. 02-138, §§ 1, 3, 7-23-02; Ord. No. 03-91, §§ 2, 3, 4-22-03; Ord. No. 03-92, § 1, 4-22-03; Ord. No. 03-93, § 4, 4-22-03; Ord. No. 03-118, § 1, 5-6-03; Ord. No. 03-119, § 1, 5-6-03; Ord. No. 03-120, § 1, 5-6-03; Ord. No. 03-134, § 1, 6-3-03; Ord. No. 03-162, § 1, 7-8-03; Ord. No. 03-163, § 2, 7-8-03; Ord. No. 03-185, § 1, 9-9-03; Ord. No. 04-108, § 2, 6-8-04; Ord. No. 04-216, § 1, 2, 12-2-04; Ord. No. 04-217, § 12, 12-2-04; Ord. No. 05-143, § 11, 7-7-05; Ord. No. 09-76, § 3, 9-1-09; Ord. No. 10-58, § 10, 9-21-10; Ord. No. 11-86, § 4, 11-15-11; Ord. No. 12-49, § 2, 7-3-12; Ord. No. R-13-09, § 1, 2-5-13; Ord. No. 13-16, § 8, 2-5-13; Ord. No. 15-128, § 2, 11-3-15; Ord. No. 17-06, § 3, 1-24-17; Ord. No. 18-136, § 1, 11-8-18; Ord. No. 19-49, § 2, 6-4-19; Ord. No. 19-112, § 3, 11-19-19; Ord. No. 21-6, § 3, 1-21-21)

(1)

Alternative Site Development Option for Single-family and Duplex Dwellings. This subsection provides for the establishment of an alternative site development option, after public hearing, for single-family and duplex dwellings, when such uses are permitted by the underlying district regulations, in the GU, RU-1, RU-1Z, RU-1M(a), RU-1M(b), RU-2, RU-TH, RU-3, RU-3M, RU-3B, RU-4L, RU-4M, RU-4, RU-4A, RU-5, EU-M, EU-S, EU-1, EU-1C, EU-2, and AU zoning districts, in accordance with the standards established herein. In considering any application for approval hereunder, the Community Zoning Appeals Board shall consider the same subject to approval of a site plan or such other plans as necessary to demonstrate compliance with the standards herein.

(a)

Purpose. The purpose of this subsection is to create objective standards to regulate the site-specific development of single-family and duplex uses in specified zoning districts. The standards provided in this subsection are alternatives to the generalized standards contained in regulations governing the specified zoning districts. The site development standards permit alternative patterns of site development in accordance with the Comprehensive Development Master Plan ("CDMP") where the public interest served by the underlying district regulations and CDMP will be served, and the objectives of the creative urban design, urban infill development and redevelopment, or the preservation and enhancement of property values will be promoted, as demonstrated by the proposed alternative development's compliance with the standards of this subsection. A zoning application for development in compliance with the alternative standards shall be approved upon demonstration at public hearing that the proposed development is in compliance with the applicable alternative standards and does not contravene the enumerated public interest standards established herein.

(b)

For the purposes of this subsection, the following terms shall have the following meanings:

"Immediate vicinity" means an area in which a parcel of land proposed for alternative development is located that is physically, functionally or geographically identifiable as a distinct realm, place or neighborhood, or an area within a radius of not more than five hundred (500) feet from the parcel proposed for alternative development, whichever is smaller.

"Open space" means that portion of a parcel of land which is not covered with a building and is open to the sky and may include patios, limited roof overhangs, screened enclosures with screened roofs, open trellises, walkways, swimming pools, tennis courts, landscaped areas, decks, and non-covered parking areas.

"Parcel proposed for alternative development" means the site of the structure for which approval is sought under this subsection.

"Proposed alternative development" means any building activity for which approval is sought under this subsection.

"Underlying district regulations" means the site development regulations of the particular zoning district in which the proposed alternative development is located, such as setbacks, lot area, frontage, and depth, lot coverage, and structure height.

(c)

Setbacks for a single-family or duplex dwelling shall be approved after public hearing upon demonstration of the following:

(1)

The character and design of the proposed alternative development will not result in a material diminution of the privacy of adjoining residential property; and

(2)

The proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity, taking into account existing structures and open space; and

(3)

The proposed alternative development will not reduce the amount of open space on the parcel proposed for alternative development to less than 40 percent of the total net lot area; and

(4)

Any area of shadow cast by the proposed alternative development upon an adjoining parcel of land during daylight hours will be no larger than would be cast by a structure constructed pursuant to the underlying district regulations, or will have no more than a de minimus impact on the use and enjoyment of the adjoining parcel of land; and

(5)

The proposed alternative development will not involve the installation or operation of any mechanical equipment closer to the adjoining parcel of land than any other portion of the proposed alternative development, unless such equipment is located within an enclosed, soundproofing structure; and

(6)

The proposed alternative development will not involve any outdoor lighting fixture that casts light on an adjoining parcel of land at an intensity greater than permitted by this Code; and

(7)

The architectural design, scale, mass, and building materials of any proposed structure or addition are aesthetically harmonious with that of other existing or proposed structures or buildings on the parcel proposed for alternative development; and

(8)

The wall of any building within a setback area required by the underlying district regulations shall be improved with architectural details and treatments that avoid the appearance of a "blank wall"; and

(9)

The proposed alternative development will not result in the destruction or removal of mature trees within a setback required by the underlying district regulations, with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the same side of the lot; and

(10)

Any windows or doors in any building to be located within an interior side setback required by the underlying district regulations shall be designed and located so that they are not aligned directly across from facing windows or doors on buildings located on an adjoining parcel of land; and

(11)

Total lot coverage shall not be increased by more than twenty (20) percent of the lot coverage permitted by the underlying district regulations; and

(12)

The area within an interior side setback required by the underlying district regulations located behind the front building line will not be used for off-street parking except:

(A)

In an enclosed garage where the garage door is located so that it is not aligned directly across from facing windows or doors on buildings located on an adjoining parcel of land; or

(B)

If the off-street parking is buffered from property that abuts the setback area by a solid wall at least six (6) feet in height along the area of pavement and parking, with either:

(i)

Articulation to avoid the appearance of a "blank wall" when viewed from the adjoining property, or

(ii)

Landscaping that is at least three (3) feet in height at time of planting, located along the length of the wall between the wall and the adjoining property, accompanied by specific provision for the maintenance of the landscaping, such as but not limited to, an agreement regarding its maintenance in recordable form from the adjoining landowner; and

(13)

Any structure within an interior side setback required by the underlying district regulations:

(A)

Is screened from adjoining property by landscape material of sufficient size and composition to obscure at least sixty (60) percent of the proposed alternative development to a height of the lower fourteen (14) feet of such structure at time of planting; or

(B)

Is screened from adjoining property by an opaque fence or wall at least six (6) feet in height that meets the standards set forth in paragraph (f) herein; and

(14)

Any proposed alternative development not attached to a principal building, except canopy carports, is located behind the front building line; and

(15)

Any structure not attached to a principal building and proposed to be located within a setback required by the underlying district regulations shall be separated from any other structure by at least three (3) feet; and

(16)

When a principal building is proposed to be located within a setback required by the underlying district regulations, any enclosed portion of the upper floor of such building shall not extend beyond the first floor of such building within the setback; and

(17)

The eighteen (18) inch distance between any swimming pool and any wall or enclosure required by this Code is maintained; and

(18)

Safe sight distance triangles shall be maintained as required by this Code; and

(19)

The parcel proposed for alternative development will continue to provide on-site parking as required by this Code; and

(20)

The parcel proposed for alternative development shall satisfy underlying district regulations or, if applicable, prior zoning actions or administrative decisions issued prior to the effective date of this ordinance (August 2, 2002), regulating lot area, frontage and depth; and

(21)

The proposed development will meet the following:

(A)

Interior side setbacks will be at least three (3) feet or fifty (50) percent of the side setbacks required by the underlying district regulations, whichever is greater;

(B)

Side street setbacks shall not be reduced by more than fifty (50) percent of the underlying district regulations;

(C)

Interior side setbacks for active recreational uses shall be no less than seven (7) feet in an EU, AU or GU zoning district or three (3) feet in all other zoning districts to which this subsection applies;

(D)

Front setbacks will be at least twelve and one-half (12½) feet or fifty (50) percent of the front setbacks required by the underlying district regulations, whichever is greater;

(E)

Rear setbacks will be at least three (3) feet for detached accessory structures and ten (10) feet for principal structures.

(d)

The lot area, frontage, or depth for a single-family or duplex dwelling shall be approved upon demonstration of at least one of the following:

(1)

The proposed lot area, frontage or depth will permit the development or redevelopment of a single-family or duplex dwelling on a parcel of land where such dwelling would not otherwise be permitted by the underlying district regulations due to the size or configuration of the parcel proposed for alternative development, provided that:

(A)

The parcel is under lawful separate ownership from any contiguous property and is not otherwise grandfathered for single-family or duplex use; and

(B)

The proposed alternative development will not result in the further subdivision of land; and

(C)

The size and dimensions of the lot are sufficient to provide all setbacks required by the underlying district regulations; and

(D)

The lot area is not less than ninety (90) percent of the minimum lot area required by the underlying district regulations; and

(E)

The proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity; and

(F)

The parcel proposed for alternative development is not zoned AU of GU, nor is it designated agricultural or open land under the Comprehensive Development Master Plan; and

(G)

Sufficient frontage shall be maintained to permit vehicular access to all resulting lots.

(2)

The proposed alternative development will result in open space, community design, amenities or preservation of natural resources that enhances the function or aesthetic character of the immediate vicinity in a manner not otherwise achievable through application of the underlying district regulations, provided that:

(A)

The density of the proposed alternative development does not exceed that permitted by the underlying district regulations; and

(B)

The size and dimensions of each lot in the proposed alternative development are sufficient to provide all setbacks required by the underlying district regulations, or, if applicable, any prior zoning actions or administrative decisions issued prior to the effective date of this ordinance (August 2, 2002); and

(C)

Each lot's area is not less than eighty (80) percent of the lot area required by the underlying district regulations; and

(D)

The proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity; and

(E)

The parcel proposed for alternative development is not zoned AU of GU, nor is it designated agricultural or open land under the Comprehensive Development Master Plan; and

(F)

Sufficient frontage shall be maintained to permit vehicular access to all resulting lots.

(3)

The proposed lot area, frontage or depth is such that:

(A)

The proposed alternative development will not result in the creation of more than three (3) lots; and

(B)

The size and dimensions of each lot are sufficient to provide all setbacks required by the underlying district regulations; and

(C)

No lot area shall be less than the smaller of:

(i)

Ninety (90) percent of the lot area required by the underlying district regulations; or

(ii)

The average area of the developed lots in the immediate vicinity within the same zoning district;

(D)

The proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity; and

(E)

The parcel proposed for alternative development is not zoned AU or GU, nor is it designated agricultural or open land under the Comprehensive Development Master Plan; and

(F)

Sufficient frontage shall be maintained to permit vehicular access to all resulting lots.

(4)

If the proposed alternative development involves the creation of new parcels of smaller than five (5) gross acres in an area designated agricultural in the Comprehensive Development Master Plan:

(A)

The abutting parcels are predominately parcelized in a manner similar to the proposed alternative development on three (3) or more sides of the parcel proposed for alternative development; and

(B)

The division of the parcel proposed for alternative development will not precipitate additional land division in the area; and

(C)

The size and dimensions of each lot in the proposed alternative development are sufficient to provide all setbacks required by the underlying district regulations; and

(D)

The proposed alternative development will not result in an obvious departure from the aesthetic character of the surrounding area defined by the closest natural and man-made boundaries lying with the agricultural designation; and

(E)

Sufficient frontage shall be maintained to permit vehicular access to all resulting lots.

(e)

A lot coverage ratio for a single-family or duplex dwelling shall be approved upon demonstration of the following:

(1)

Total lot coverage shall not be increased by more than twenty (20) percent of the lot coverage permitted by the underlying district regulations provided, however, that the proposed alternative development shall not result in total lot coverage exceeding 50% of the net lot area; and

(2)

The proposed alternative development will not result in the destruction or removal of mature trees on the lot with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the lot; and

(3)

The increase in lot coverage will not result in a principal building with an architectural design, scale, mass or building materials that are not aesthetically harmonious with that of other existing or proposed structures in the immediate vicinity; and

(4)

The proposed alternative development will not result in an obvious departure from the aesthetic character of in the immediate vicinity.

(f)

An alternative maximum height of walls, hedges or fences for a single-family or duplex dwelling shall be approved upon demonstration of the following:

(1)

No wall, hedge or fence shall exceed eight (8) feet in height; and

(2)

No wall, hedge or fence located in a front setback required by the underlying district regulations shall exceed six (6) feet in height; and

(3)

The additional height of a proposed wall, hedge or fence will not obscure in whole or in part an existing view or vista to any landmark, natural area, or waterbody from any window or door in a residential unit on an adjoining parcel of land; and

(4)

Proposed walls or fences shall be:

(A)

Articulated to avoid the appearance of a "blank wall" when viewed from adjoining property; or

(B)

Landscaped with landscaping that is at least three (3) feet in height at time of planting, located along the length of the wall between the wall and the adjoining property, accompanied by specific provision for the maintenance of the landscaping, such as but not limited to, an agreement from the landowner regarding its maintenance in recordable form from the adjoining property owner; or

(C)

Where facing a public right-of-way, set back at least two and one-half (2½) feet from the right-of-way line and extensively landscaped with shrubs of a minimum of three (3) feet in height when measured immediately after planting, which will form a continuous, unbroken, solid, visual screen within one (1) year after time of planting; hedges of a minimum of three (3) feet in height immediately after planting, which will form a continuous, unbroken, solid, visual screen within one (1) year after time of planting; and/or climbing vines of a minimum of thirty-six (36) inches in height immediately after planting; and

(5)

Proposed fences shall be constructed or installed so that the "unfinished" side is directed inward toward the center of the parcel proposed for alternative development; and

(6)

Proposed fences are constructed of durable materials and are decorative; and

(7)

Proposed fences in the front building line are not comprised of chain link or other wire mesh, unless located in an EU-1, EU-2, AU or GU with AU, EU-1, or EU-2 trend zoning district; and

(8)

Safe sight distance triangles are maintained pursuant to this Code.

(g)

Notwithstanding the foregoing, no proposed alternative development shall be approved upon demonstration that the proposed alternative development:

(1)

Will result in a significant diminution of the value of property in the immediate vicinity; or

(2)

Will have substantial negative impact on public safety due to unsafe automobile movements, heightened vehicular-pedestrian conflicts, or heightened risk of fire; or

(3)

Will result in a materially greater adverse impact on public services and facilities than the impact that would result from development of the same parcel pursuant to the underlying district regulations; or

(4)

Will combine severable use rights obtained pursuant to Chapter 33B of this Code in conjunction with the approval sought hereunder so as to exceed the limitations imposed by Section 33B-45 of this Code.

(h)

Proposed alternative development under this subsection shall provide additional amenities or buffering to mitigate the impacts of the development as approved, where the amenities or buffering expressly required by this subsection are insufficient to mitigate the impacts of the development. The purpose of the amenities or buffering elements shall be to preserve and protect the quality of life of the residents of the approved development and the immediate vicinity in a manner comparable to that ensured by the underlying district regulations. Examples of such amenities include but are not limited to: active or passive recreational facilities, common open space, additional trees or landscaping, convenient covered bus stops or pick-up areas for transportation services, sidewalks (including improvements, linkages, or additional width), bicycle paths, buffer areas or berms, street furniture, undergrounding of utility lines, and decorative street lighting. In determining which amenities or buffering elements are appropriate for a proposed development, the following shall be considered:

(A)

The types of needs of the residents of the parcel proposed for development and the immediate vicinity that would likely be occasioned by the development, including, but not limited to, recreational, open space, transportation, aesthetic amenities, and buffering from adverse impacts; and

(B)

The proportionality between the impacts on residents of the proposed alternative development and the immediate vicinity and the amenities or buffering required. For example, a reduction in lot area for numerous lots may warrant the provision of additional common open space. A reduction in a particular lot's interior side setback may warrant the provision of additional landscaping.

(2)

Alternative Site Development Option for Single-family Zero Lot line Dwellings. This subsection provides for the establishment of an alternative site development option, after public hearing, for zero lot line dwellings, when such uses are permitted by the underlying district regulations, or when such uses were approved for development by a prior public hearing action, in accordance with the standards established herein. In considering any application for approval hereunder, the Community Zoning Appeals Board shall consider the same subject to approval of a site plan or such other plans as necessary to demonstrate compliance with the standards herein.

(a)

Purpose. The purpose of this subsection is to create objective standards to regulate site specific development of zero lot line dwellings. The standards provided in this subsection are alternatives to the generalized standards contained in regulations governing this specified type of residence. A zoning application for development in compliance with the alternative standards shall be approved upon demonstration at public hearing that the proposed development is in compliance with the applicable alternative standards and does not contravene the enumerated public interest standards established herein.

(b)

Alternative setbacks for a zero lot line dwelling shall be approved after public hearing upon demonstration of the following:

(1)

The character and design of the proposed alternative development will not result in a material diminution of the privacy of adjoining residential property; and

(2)

The proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity, taking into account existing structures and open space; and

(3)

The proposed alternative development will not reduce the amount of open space on the lot proposed for alternative development to less than 40% of the total net lot area; and

(4)

Any area of shadow cast by the proposed alternative development upon an adjoining parcel of land during daylight hours will be no larger than would be cast by a structure constructed pursuant to the applicable underlying district regulations, or will have no more than a de minimus impact on the use and enjoyment of the adjoining parcel of land; and

(5)

The proposed alternative development will not involve the installation or operation of any mechanical equipment closer to the adjoining parcel of land than any other portion of the proposed alternative development, unless such equipment is located within an enclosed, soundproofing structure; and

(6)

The proposed alternative development will not involve any outdoor lighting fixture that casts light on an adjoining parcel of land at an intensity greater than permitted by this Code; and

(7)

The architectural design, scale, mass, and building materials of any proposed structure or addition are aesthetically harmonious with that of other existing or proposed structures or buildings on the parcel proposed for alternative development; and

(8)

The wall of any building within a setback area required by the underlying district regulations or the regulations in effect at the time of development, shall be improved with architectural details and treatments that avoid the appearance of a "blank wall"; and

(9)

The proposed alternative development will not result in the destruction or removal of mature trees within a setback required by the underlying district regulations or the regulations in effect at the time of development, with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the same side of the lot; and

(10)

Any windows or doors in any building to be located within an interior side setback required by the underlying district regulations or the regulations in effect at the time of development shall be designed and located so that they are not aligned directly across from facing windows or doors on buildings located on an adjoining parcel of land; and

(11)

Total lot coverage shall not be increased by more than ten (10%) percent of the lot coverage permitted by the underlying district regulations or the regulations in effect at the time of development; and

(12)

The area within an interior side setback required by the underlying district regulations or the regulations in effect at the time of development, located behind the front building line will not be used for off-street parking except

(A)

In an enclosed garage where the garage door is located so that it is not aligned directly across from facing windows or doors on buildings located on an adjoining parcel of land; or

(B)

If the off-street parking is buffered from property that abuts the setback area by a solid wall at least six (6) feet in height along the area of pavement and parking, with either:

(i)

Articulation to avoid the appearance of a "blank wall" when viewed from the adjoining property, or

(ii)

Landscaping that is at least three (3) feet in height at time of planting, located along the length of the wall between the wall and the adjoining property, accompanied by specific provision for the maintenance of the landscaping, such as but not limited to, an agreement regarding its maintenance in recordable form from the adjoining landowner; and

(13)

Any structure within an interior side setback required by the underlying district regulations or the regulations in effect at the time of development:

(A)

Is screened from adjoining property by landscape material of sufficient size and composition to obscure at least sixty percent (60%) of the proposed alternative development to a height of the lower fourteen (14) feet of such structure at time of planting; or

(B)

Is screened from adjoining property by an opaque fence or wall at least six (6) feet in height that meets the standards set forth in paragraph (f) herein; and

(14)

Any proposed alternative development not attached to a principal building, except canopy carports, is located behind the front building line; and

(15)

Any structure not attached to a principal building and proposed to be located within a setback required by the underlying district regulations or the regulations in effect at the time of development shall be separated from any other structure by at least three (3) feet; and

(16)

When a principal building is proposed to be located within a setback required by the underlying district regulations or the regulations in effect at the time of development, any enclosed portion of the upper floor of such building shall not extend beyond the first floor of such building within the setback; and

(17)

The eighteen (18) inch distance between any swimming pool and any wall or enclosure required by this Code is maintained; and

(18)

Safe sight distance triangles shall be maintained as required by this Code; and

(19)

The parcel proposed for alternative development will continue to provide on-site parking as required by this Code; and

(20)

The parcel proposed for alternative development shall satisfy underlying district regulations or the regulations in effect at the time of development or, if applicable, prior zoning actions or administrative decisions issued prior to the effective date of this ordinance (May 2, 2003) regulating lot area, frontage and depth; and

(21)

The proposed alternative development of the lot will meet the following:

(A)

The interior side setbacks will be at least four (4) feet or the minimum distance necessary to comply with Fire safety requirements, whichever is greater;

(B)

The side street setback shall not be reduced by more than fifty percent (50%) of the underlying district regulations or the regulations in effect at the time of development;

(C)

The interior side setbacks for active recreational uses shall be no less than seven (7) feet or the minimum distance necessary to comply with Fire safety requirements, whichever is greater;

(D)

The front setback of the dwelling or accessory use shall not be reduced;

(E)

The rear setback will be at least three (3) feet for detached accessory structures and ten (10) feet for principal structures;

(F)

The proposed alternative development shall not encroach into the maintenance easement as required by this chapter and shown on the approved plat; and

(G)

The proposed alternative development shall not contain openings on the zero lot line side of the structure, other than permitted by the underlying district regulations.

(c)

An alternative lot coverage ratio for a zero lot line dwelling shall be approved upon demonstration of the following:

(1)

Total lot coverage shall not be increased by more than ten percent (10%) of the lot coverage permitted by the underlying district regulations or the regulations in effect at the time of development; and

(2)

The proposed alternative development will not result in the destruction or removal of mature trees on the lot with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the lot; and

(3)

The increase in lot coverage will not result in a principal building with an architectural design, scale, mass or building materials that are not aesthetically harmonious with that of other existing or proposed structures in the immediate vicinity; and

(4)

The proposed alternative development will not result in an obvious departure from the aesthetic character of in the immediate vicinity.

(d)

An alternative maximum height of walls, hedges or fences for a zero lot line dwelling shall be approved upon demonstration of the following:

(1)

No wall, hedge or fence shall exceed eight (8) feet in height; and

(2)

No wall, hedge or fence located in a front setback required by the underlying district regulations or the regulations in effect at the time of development shall exceed six (6) feet in height; and

(3)

The additional height of a proposed wall, hedge or fence will not obscure in whole or in part an existing view or vista to any landmark, natural area, or waterbody from any window or door in a residential unit on an adjoining parcel of land; and

(4)

Proposed walls or fences shall be:

(A)

Articulated to avoid the appearance of a "blank wall" when viewed from adjoining property, or

(B)

Landscaped with landscaping that is at least three (3) feet in height at time of planting, located along the length of the wall between the wall and the adjoining property, accompanied by specific provision for the maintenance of the landscaping, such as but not limited to, an agreement from the landowner regarding its maintenance in recordable form from the adjoining property owner, or

(C)

Where facing a public right-of-way, set back at least two and one-half (2½) feet from the right-of-way line and extensively landscaped with shrubs of a minimum of three (3) feet in height when measured immediately after planting, which will form a continuous, unbroken, solid, visual screen within one (1) year after time of planting; hedges of a minimum of three (3) feet in height immediately after planting, which will form a continuous, unbroken, solid, visual screen within one (1) year after time of planting; and/or climbing vines of a minimum of thirty-six (36) inches in height immediately after planting; and

(5)

Proposed fences shall be constructed or installed so that the "unfinished" side is directed inward toward the center of the parcel proposed for alternative development; and

(6)

Proposed fences are constructed of durable materials and are decorative; and

(7)

Proposed fences in the front building line are not comprised of chain link or other wire mesh; and

(8)

Safe sight distance triangles are maintained pursuant to this Code.

(e)

Notwithstanding the foregoing, no proposed alternative development shall be approved upon demonstration that the proposed alternative development:

(1)

Will result in a significant diminution of the value of property in the immediate vicinity; or

(2)

Will have substantial negative impact on public safety due to unsafe automobile movements, heightened vehicular-pedestrian conflicts, or heightened risk of fire; or

(3)

Will result in a materially greater adverse impact on public services and facilities than the impact that would result from development of the same parcel pursuant to the underlying district regulations.

(f)

Proposed alternative development under this subsection shall provide additional amenities or buffering to mitigate the impacts of the development as approved, where the amenities or buffering expressly required by this subsection are insufficient to mitigate the impacts of the development. The purpose of the amenities or buffering elements shall be to preserve and protect the quality of life of the residents of the approved development and the immediate vicinity in a manner comparable to that ensured by the underlying district regulations. Examples of such amenities include but are not limited to: active or passive recreational facilities, common open space, additional trees or landscaping, convenient covered bus stops or pick-up areas for transportation services, sidewalks (including improvements, linkages, or additional width), bicycle paths, buffer areas or berms, street furniture, undergrounding of utility lines, and decorative street lighting. In determining which amenities or buffering elements are appropriate for a proposed development, the following shall be considered:

(A)

The types of needs of the residents of the parcel proposed for development and the immediate vicinity that would likely be occasioned by the development, including, but not limited to, recreational, open space, transportation, aesthetic amenities, and buffering from adverse impacts; and

(B)

The proportionality between the impacts on residents of the proposed alternative development and the immediate vicinity and the amenities or buffering required. For example, an increase in the lot area coverage for numerous lots may warrant the provision of additional common open space. A reduction in a particular lot's interior side setback may warrant the provision of additional landscaping.

(2.1)

Alternative Site Development Option for Three-unit or Four-unit Apartment House, Multiple-Family Apartment House Use and Multiple-Family Housing Developments. This subsection provides for the establishment of an alternative site development option, after public hearing, for three-unit or four-unit apartment house use, multiple-family apartment house use and multiple-family housing developments, when such uses are permitted by the applicable district regulations, in the RU-3, RU-3M, RU-4L, RU-4M, RU-4, RU-4A, and RU-5 zoning districts, in accordance with the standards established herein. In considering any application for approval hereunder, the Community Zoning Appeals Board shall consider the same subject to approval of a site plan or such other plans as necessary to demonstrate compliance with the standards herein.

(a)

Purpose. The purpose of this subsection is to create objective standards to regulate the site-specific development of three-unit or four-unit apartment house use, multiple-family apartment house use and multiple-family housing development uses in specified zoning districts. The standards provided in this subsection are alternatives to the generalized standards contained in regulations governing the specified zoning districts. The site development standards permit alternative patterns of site development in accordance with the Comprehensive Development Master Plan ("CDMP") where the public interest served by the underlying district regulations and CDMP will be served, and the objectives of the creative urban design, urban infill development and redevelopment, or the preservation and enhancement of property values will be promoted, as demonstrated by the proposed alternative development's compliance with the standards of this subsection. A zoning application for development in compliance with the alternative standards shall be approved upon demonstration at public hearing that the proposed development is in compliance with the applicable alternative standards and does not contravene the enumerated public interest standards established herein.

(b)

For the purposes of this subsection, the following terms shall have the following meanings:

"Common open space" means that portion of a parcel of land which is not covered with a building and is open to the sky and may include, except as otherwise restricted by the regulations governing the specified zoning district, patios, limited roof overhangs, screened enclosures with screened roofs, open trellises, pedestrian walkways and sitting areas, shuffle board recreational areas, swimming pools, tennis courts, landscaped areas, decks, lakes, entrance features, accessory buildings related to active or passive recreational uses, golf courses, similar open space amenities on roof decks and other above-grade surfaces, and ingress and egress drives not exceeding the maximum width required to serve the parking area.

"Applicable district regulations" means the site development regulations of the particular zoning district in which the proposed alternative development is located or the requirements, limitations and restrictions applicable to the particular type of proposed alternative development such as setbacks, lot area and frontage, lot coverage, floor area ratio, common open space, private open space, structure height and densities.

(c)

Setbacks for a three-unit or four-unit apartment house use, multiple-family apartment house use or multiple-family housing development shall be approved after public hearing upon demonstration of the following:

(1)

The character and design of the proposed alternative development will not result in a material diminution of the privacy of adjoining property; and

(2)

The proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity, taking into account existing structures and open space; and

(3)

The proposed alternative development will not reduce the amount of common open space on the parcel proposed for alternative development by less than 20% of the open space percentage required by the applicable district regulations; and

(4)

Any area of shadow cast by the proposed alternative development upon an adjoining parcel of land during daylight hours will be no larger than would be cast by a structure(s) constructed, pursuant to the underlying district regulations, or will have no more than a de minimus impact on the use and enjoyment of the adjoining parcel of land; and

(5)

The proposed alternative development will not involve the installation or operation of any mechanical equipment closer to the adjoining parcel of land than any other portion of the proposed alternative development, unless such equipment is located within an enclosed, soundproofing structure and if located on the roof of such an alternative development shall screened from ground view and from view at the level in which the installations are located, and shall be designed as an integral part of and harmonious with the building design; and

(6)

The proposed alternative development will not involve any outdoor lighting fixture that casts light on an adjoining parcel of land at an intensity greater than permitted by this Code; and

(7)

The architectural design, scale, mass, and building materials of any proposed structure(s) or addition(s) are aesthetically harmonious with that of other existing or proposed structure(s) or building(s) on the parcel proposed for alternative development; and

(8)

The wall(s) of any building within a setback area required by the applicable district regulations shall be improved with architectural details and treatments that avoid the appearance of a "blank wall"; and

(9)

The proposed alternative development will not result in the destruction or removal of mature trees within a setback required by the underlying district regulations, with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the same side of the lot, parcel or tract; and

(10)

Any windows or doors in any building(s) to be located within an interior side setback required by the applicable district regulations shall be designed and located so that they are not aligned directly across from facing windows or doors on buildings located on an adjoining parcel of land; and

(11)

Total lot coverage shall not be increased by more than twenty percent (20%) of the lot coverage permitted by the applicable district regulations; and

(12)

The area within an interior side setback required by the applicable district regulations located behind the front building line will not be used for off-street parking except:

(A)

In any parking garage where the garage door or entrance(s) or exit(s) is located so that it is not aligned directly across from facing windows or doors on buildings located on an adjoining parcel of land; or

(B)

If the off-street parking is buffered from property that abuts the setback area by a solid wall at least six (6) feet in height along the area of pavement and parking, with either:

(i)

Articulation to avoid the appearance of a "blank wall" when viewed from the adjoining property, or

(ii)

Landscaping that is at least three (3) feet in height at time of planting, located along the length of the wall between the wall and the adjoining property, accompanied by specific provision for the maintenance of the landscaping, such as but not limited to, an agreement regarding its maintenance in recordable form from the adjoining landowner; and

(13)

Any structure(s) within an interior side setback required by the applicable district regulations:

(A)

Is screened from adjoining property by landscape material of sufficient size and composition to obscure at least sixty percent (60%) of the proposed alternative development to a height of the lower fourteen (14) feet of such structure(s) at time of planting; or

(B)

Is screened from adjoining property by an opaque fence or wall at least six (6) feet in height that meets the standards set forth in paragraph (f) herein; and

(14)

Any proposed alternative development not attached to a principal building(s), except canopy carports, is located behind the front building line; and

(15)

Any structure(s) not attached to a principal building(s) and proposed to be located within a setback required by the applicable district regulations shall be separated from any other structure(s) by at least five (5) feet; and

(16)

When a principal building(s) is proposed to be located within a setback required by the applicable district regulations, any enclosed portion of the upper floor of such building shall not extend beyond the first floor of such building within the setback; and

(17)

The eighteen (18) inch distance between any swimming pool and any wall or enclosure required by this Code is maintained; and

(18)

Safe sight distance triangles shall be maintained as required by this Code; and

(19)

The parcel proposed for alternative development will continue to provide on-site parking as required by this Code; and

(20)

The parcel proposed for alternative development shall satisfy applicable district regulations or, if applicable, prior zoning actions for similar uses issued prior to the effective date of this ordinance (May 16, 2003), regulating setbacks, lot area and frontage, lot coverage, floor area ratio, common open space, private open space, structure height and densities; and

(21)

The proposed development will meet the following:

(A)

Interior side setbacks shall not be reduced by more than twenty-five percent (25%) of the setbacks required by the applicable district regulations, except that no such alternative interior side setback shall be permitted from an interior side property line adjoining lands approved or developed for single-family or duplex residential use or designated for Low Density, Agriculture or Open Land on the Land Use Plan map of the Comprehensive Development Master Plan;

(B)

Side street setbacks shall not be reduced by more than twenty-five percent (25%) of the setbacks required by the applicable district regulations;

(C)

Interior side setbacks for active recreational uses shall not be reduced by more than 25% of the setbacks required by the applicable district regulations, except that no such alternative interior side setback shall be permitted from any interior side property line adjoining lands approved or developed for single-family or duplex residential use or designated for Low Density, Agriculture or Open Land on the Land Use Plan map of the Comprehensive Development Master Plan;

(D)

Front setbacks shall not be reduced by more than twenty-five percent (25%) of the setbacks required by the applicable district regulations;

(E)

Rear setbacks shall not be reduced by more than twenty-five percent (25%) required by the applicable district regulations, except that no such alternative rear setback shall be permitted from a rear property line adjoining lands developed for single-family or duplex residential use or designated for Low Density, Agriculture or Open Land on the Land Use Plan map of the CDMP; and

(F)

Setbacks between principal building(s) shall not be reduced by more than twenty-five percent (25%) of the setback required by the applicable district regulations.

(d)

A lot coverage or floor area ratio for a three-unit or four-unit apartment house use, multiple-family apartment house use or multiple-family housing development shall be approved upon demonstration of the following:

(1)

Total lot coverage or floor area ratio shall not be increased by more than twenty percent (20%) of the lot coverage and floor area ratio permitted by the applicable district regulations; and

(2)

The proposed alternative development will not result in the destruction or removal of mature trees on the lot with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the lot; and

(3)

The increase in lot coverage or floor area ratio will not result in principal building(s) with an architectural design, scale, mass or building materials that are not aesthetically harmonious with that of other existing or proposed structures in the immediate vicinity; and

(4)

The proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity.

(e)

Common open space for a multiple-family apartment house use or multiple-family housing development shall be approved upon demonstration of the following:

(1)

Common open space shall not be decreased by more than twenty percent (10%) of the common open space required by the applicable district regulations; and

(2)

The proposed alternative development will not result in the destruction or removal of mature trees on the lot with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the lot; and

(3)

The common open space provided shall be used to shade and cool, direct wind movements, enhance architectural features, relate structure design to site, visually screen non-compatible uses and block noise generated by major roadways and intense use areas; and

(4)

The common open space provided shall relate to any natural characteristics in such a way as to preserve and enhance their scenic and functional qualities to the fullest extent possible; and

(5)

The proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity.

(f)

The lot area and frontage for a three-unit or four-unit apartment house use, multiple-family apartment house use or multiple-family housing development shall be approved upon demonstration of at least one of the following:

(1)

The proposed lot area and lot frontage will permit the development or redevelopment of a lot, parcel or tract of land where such development would not otherwise be permitted by the applicable district regulations due to the size or configuration of the parcel proposed for alternative development, provided that:

(A)

The lot, parcel or tract is under lawful separate ownership from any contiguous property; and

(B)

The proposed alternative development will not result in the further subdivision of land; and

(C)

The size and dimensions of the lot, parcel or tract are sufficient to provide all setbacks required by the underlying district regulations; and

(D)

The lot area is not less than ninety percent (90%) of the minimum lot area required by the applicable district regulations; and

(E)

The proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity; and

(F)

The parcel proposed for alternative development does not adjoin or lie adjacent to AU or GU zoned lands, nor lands designated for Low Density, Agricultural or Open Land under the Land Use Plan map of the Comprehensive Development Master Plan; and

(G)

The lot frontage dimension is not less than ninety percent (90%) of the minimum lot frontage required by the applicable district regulations, except that the frontage dimension of a flag-lot, parcel or tract shall be permitted to be reduced to the minimum width necessary to allow vehicular access as determined by the County; and

(H)

The resultant lot frontage provides vehicular ingress and egress to all resulting lots, parcels or tracts, including on-site access to emergency equipment.

(2)

The proposed alternative development will result in open space, community design, amenities or preservation of natural resources that enhances the function or aesthetic character of the immediate vicinity in a manner not otherwise achievable through application of the applicable district regulations, provided that:

(A)

The density of the proposed alternative development does not exceed that permitted by the applicable district regulations; and

(B)

The size and dimensions of each lot, parcel or tract in the proposed alternative development are sufficient to provide all setbacks required by the applicable district regulations, or, if applicable, any prior zoning actions for similar uses issued prior to the effective date of this ordinance (May 16, 2003); and

(C)

The area of each lot, parcel or tract is not less than eighty percent (80%) of the area required by the applicable district regulations; and

(D)

The proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity; and

(E)

The parcel proposed for alternative development does not adjoin or lie adjacent to AU or GU zoned lands, nor lands designated for Low Density, Agricultural or Open Land under the Land Use Plan map of the Comprehensive Development Master Plan; and

(F)

The resultant lot frontage provides vehicular ingress and egress to all resulting lots, parcels or tracts, including on-site access to emergency equipment.

(3)

The proposed lot area and frontage is such that:

(A)

The proposed alternative development will not result in the creation of more than two (2) lots, parcels or tracts; and

(B)

The size and dimensions of each lot, parcel or tract are sufficient to provide all setbacks required by the applicable district regulations; and

(C)

No lot area shall be less than the smaller of:

(i)

Ninety percent (90%) of the lot area required by the applicable district regulations; or

(ii)

The average area of the developed lots, parcels or tracts in the immediate vicinity within the same zoning district; and

(D)

The proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity; and

(E)

The parcel proposed for alternative development does not adjoin or lie adjacent to AU or GU zoned lands, nor lands designated for Low Density, Agricultural or Open Land under the Land Use Plan map of the Comprehensive Development Master Plan; and

(F)

The resultant lot frontage provides vehicular ingress and egress to all resulting lots, parcels or tracts, including on-site access to emergency equipment.

(g)

A lot coverage or floor area ratio for a three-unit or four-unit apartment house use, multiple-family apartment house use or multiple-family housing development shall be approved upon demonstration of the following:

(1)

Total lot coverage or floor area ratio shall not be increased by more than twenty percent (20%) of the lot coverage and floor area ratio permitted by the applicable district regulations; and

(2)

The proposed alternative development will not result in the destruction or removal of mature trees on the lot with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the lot; and

(3)

The increase in lot coverage or floor area ratio will not result in principal building(s) with an architectural design, scale, mass or building materials that are not aesthetically harmonious with that of other existing or proposed structures in the immediate vicinity; and

(4)

The proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity.

(h)

An alternative maximum height of walls, hedges or fences for a three-unit or four-unit apartment house use, multiple-family apartment house use or multiple-family housing development shall be approved upon demonstration of the following:

(1)

No wall, hedge or fence shall exceed eight (8) feet in height; and

(2)

No wall, hedge or fence located in a front or side street setback required by the applicable district regulations shall exceed six (6) feet in height; and

(3)

The additional height of a proposed wall, hedge or fence will not obscure in whole or in part an existing view or vista to any landmark, natural area, natural feature of the site such as a lake or golf course, or waterbody from any window or door in a residential dwelling unit on an adjoining parcel of land; and

(4)

Proposed walls or fences shall be:

(A)

Articulated to avoid the appearance of a "blank wall" when viewed from adjoining property, or

(B)

Landscaped with landscaping that is at least three (3) feet in height at time of planting, located along the length of the wall between the wall and the adjoining property, accompanied by specific provision for the maintenance of the landscaping, such as but not limited to, an agreement from the landowner regarding its maintenance in recordable form from the adjoining property owner, or

(C)

Where facing a public right-of-way, set back at least two and one-half (2½) feet from the right-of-way line and extensively landscaped with shrubs of a minimum of three (3) feet in height when measured immediately after planting, which will form a continuous, unbroken, solid, visual screen within one (1) year after time of planting; hedges of a minimum of three (3) feet in height immediately after planting, which will form a continuous, unbroken, solid, visual screen within one (1) year after time of planting; and/or climbing vines of a minimum of thirty-six (36) inches in height immediately after planting; and

(5)

Proposed fences shall be constructed or installed so that the sides are "finished" in accordance with the applicable regulations; and

(6)

Proposed fences are constructed of durable materials and are decorative; and

(7)

Proposed fences in the front building line are not comprised of chain link or other wire mesh; and

(8)

Safe sight distance triangles are maintained pursuant to this Code.

(i)

Notwithstanding the foregoing, no proposed alternative development shall be approved upon demonstration that the proposed alternative development:

(1)

Will result in a significant diminution of the value of property in the immediate vicinity; or

(2)

Will have substantial negative impact on public safety due to unsafe automobile movements, heightened vehicular-pedestrian conflicts, or heightened risk of fire; or

(3)

Will result in a materially greater adverse impact on public services and facilities than the impact that would result from development of the same parcel pursuant to the underlying district regulations; or

(4)

Will combine severable use rights obtained pursuant to Chapter 33B of this Code in conjunction with the approval sought hereunder so as to exceed the limitations imposed by Section 33B-45 of this Code.

(j)

Proposed alternative development under this subsection shall provide additional amenities or buffering to mitigate the impacts of the development as approved, where the amenities or buffering expressly required by this subsection are insufficient to mitigate the impacts of the development. The purpose of the amenities or buffering elements shall be to preserve and protect the quality of life of the residents of the approved development and the immediate vicinity in a manner comparable to that ensured by the underlying district regulations. Examples of such amenities include but are not limited to: active or passive recreational facilities, common open space, additional trees or landscaping, convenient covered bus stops or pick-up areas for transportation services, sidewalks (including improvements, linkages, or additional width), bicycle paths, buffer areas or berms, street furniture, undergrounding of utility lines, and decorative street lighting. In determining which amenities or buffering elements are appropriate for a proposed development, the following shall be considered:

(A)

The types of needs of the residents of the parcel proposed for development and the immediate vicinity that would likely be occasioned by the development, including, but not limited to, recreational, open space, transportation, aesthetic amenities, and buffering from adverse impacts; and

(B)

The proportionality between the impacts on residents of the proposed alternative development and the immediate vicinity and the amenities or buffering required. For example, a reduction in lot area for numerous lots, parcels or tracts may warrant the provision of additional common open space. A reduction in a particular lot, parcel, or tract's interior side setback may warrant the provision of additional landscaping.

(3)

Alternative Site Development Option for Buildings and Structures in the BU Zoning Districts. This subsection provides for the establishment of an alternative site development option, after public hearing, for buildings and structures permitted by the underlying district regulations, except residential buildings and structures and religious facilities, in the BU-1, BU-1A, BU-2, and BU-3 zoning districts, in accordance with the standards established herein. In considering any application for approval hereunder, the Community Zoning Appeals Board shall consider the same subject to approval of a site plan or such other plans as necessary to demonstrate compliance with the standards herein.

(a)

Purpose. The purpose of this subsection is to create objective standards to regulate the site-specific development of buildings and structures, except residential buildings and structures and religious facilities, in specified BU zoning districts. The standards provided in this subsection are alternatives to the generalized standards contained in regulations governing the specified zoning districts. The site development standards permit alternative patterns of site development in accordance with the Comprehensive Development Master Plan ("CDMP") where the public interest served by the underlying district regulations and CDMP will be served, and including the objectives of creative urban design, the Guidelines for Urban Form, landscaping and redevelopment opportunities, or the preservation and enhancement of property values will be promoted, as demonstrated by the proposed alternative development's compliance with the standards of this subsection. A zoning application for development in compliance with the alternative standards shall be approved upon demonstration at public hearing that the proposed development is in compliance with the applicable alternative standards and does not contravene the enumerated public interest standards established herein.

(b)

For the purposes of this subsection, the following terms shall have the following meanings:

"Discordant Use" means adjacent land uses which:

(1)

Have a different zoning district prefix, or

(2)

Contain an existing or approved use which is otherwise allowable as of right in a different zoning district prefix.

(c)

Setbacks for a principal or accessory building or structure shall be approved after public hearing upon demonstration of the following:

(1)

The character and design of the proposed alternative development will not result in a material diminution of the privacy of adjoining property; and

(2)

The proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity, taking into account existing structures and open space; and

(3)

The proposed alternative development will not reduce the amount of open space on the parcel proposed for alternative development by more than 20% of the landscaped open space percentage required by the applicable district regulations; and

(4)

Any area of shadow cast by the proposed alternative development upon an adjoining property will be no larger than would be cast by a structure constructed pursuant to the underlying district regulations, or will have no more than a de minimus impact on the use and enjoyment of the adjoining parcel of land; and

(5)

The proposed alternative development will not involve the installation or operation of any mechanical equipment closer to the adjoining parcel of land than any other portion of the proposed alternative development, unless such equipment is located within an enclosed, soundproofed structure and if located on the roof of such an alternative development shall be screened from ground view and from view at the level in which the installations are located, and shall be designed as an integral part of and harmonious with the building design; and

(6)

The proposed alternative development will not involve any outdoor lighting fixture that casts light on an adjoining parcel of land at an intensity greater than permitted by this Code; and

(7)

The architectural design, scale, mass, and building materials of any proposed structure(s) or addition(s) are aesthetically harmonious with that of other existing or proposed structure(s) or building(s) on the parcel proposed for alternative development; and

(8)

The wall(s) of any building within a front, side street or double frontage setback area or within a setback area adjacent to a discordant use, required by the underlying district regulations, shall be improved with architectural details and treatments that avoid the appearance of a "blank wall"; and

(9)

The proposed alternative development will not result in the destruction or removal of mature trees within a setback required by the underlying district regulations, with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the same side of the lot, parcel or tract; and

(10)

Any windows or doors in any building(s) to be located within an interior side or rear setback required by the underlying district regulations shall be designed and located so that they are not aligned directly across from facing windows or doors on building(s) of a discordant use located on an adjoining parcel of land; and

(11)

Total lot coverage shall not be increased by more than ten percent (10%) of the lot coverage permitted by the underlying district regulations; or a total floor area ratio shall not be increased by more than ten percent (10%) of the floor area ratio permitted by the underlying district regulations; and

(12)

The area within an interior side or rear setback required by the underlying district regulations located adjacent to a discordant use will not be used for off-street parking except:

(A)

In an enclosed garage where the garage door is located so that it is not aligned directly across from facing windows or doors on buildings of a discordant use located on an adjoining parcel of land; or

(B)

If the off-street parking is buffered from property that abuts the setback area by a solid wall at least six (6) feet in height along the area of pavement and parking, with either:

(i)

Articulation to avoid the appearance of a "blank wall" when viewed from the adjoining property, or

(ii)

Landscaping that is at least three (3) feet in height at time of planting, located along the length of the wall between the wall and the adjoining property, accompanied by specific provision for the maintenance of the landscaping, such as but not limited to, an agreement regarding its maintenance in recordable form from the adjoining landowner; and

(13)

Any structure within an interior side setback required by the underlying district regulations:

(A)

Is screened from adjoining property by landscape material of sufficient size and composition to obscure at least eighty percent (80%) (if located adjoining or adjacent to a discordant use) of the proposed alternative development to a height of the lower fourteen (14) feet of such structure(s) at time of planting; or

(B)

Is screened from adjoining property by an opaque fence or wall at least eight (8) feet, six (6) feet if located adjoining or adjacent to a discordant use, in height that meets the standards set forth in paragraph (g) herein; and

(14)

Any structure not attached to a principal building and proposed to be located within a setback required by the underlying district regulations shall be separated from any other structure by at least 10 feet or the minimum distance to comply with fire safety standards, whichever is greater; and

(15)

When a principal or accessory building is proposed to be located within a setback required by the underlying district regulations, any enclosed portion of the upper floor of such building shall not extend beyond the first floor of such building within the setback; and

(16)

Safe sight distance triangles shall be maintained as required by this Code; and

(17)

The parcel proposed for alternative development shall continue to provide the required number of on-site parking spaces as required by this Code, except that off-site parking spaces may be provided in accordance with Section 33-128 of this Code; and

(18)

The parcel proposed for alternative development shall satisfy all other applicable underlying district regulations or, if applicable, prior zoning actions issued prior to the effective date of this ordinance (May 2, 2003), regulating setbacks, lot area and lot frontage, lot coverage, floor area ratio, landscaped open space and structure height; and

(19)

The proposed development will meet the following:

(A)

Interior side setbacks shall not be reduced by more than fifty percent (50%) of the side setbacks required by the underlying district regulations, or the minimum distance required to comply with fire safety standards, whichever is greater when the adjoining parcel of land is a BU or IU district; interior side setbacks shall not be reduced by more than twenty-five (25%) percent of the interior side setbacks required by the underlying district regulations when the adjoining parcel of land allows a discordant use.

(B)

Side street setbacks shall not be reduced by more than twenty-five percent (25%) of the underlying district regulations;

(C)

Front setbacks (including double-frontage setbacks) shall not be reduced by more than twenty-five (25%) percent of the setbacks required by the underlying district regulations; and

(D)

Rear setbacks shall not be reduced below fifty (50%) percent of the rear setback required by the underlying district regulations, or the minimum distance required to comply with fire safety standards, whichever is greater, when the adjoining parcel of land is a BU or IU district; rear setbacks shall not be reduced below twenty-five (25%) percent of the rear setback required by the underlying district regulations when the adjoining parcel of land allows a discordant use.

(E)

Setbacks between building(s) shall not be reduced below 10 feet, or the minimum distance required to comply with fire safety standards, whichever is greater.

(d)

An alternative lot coverage or floor area ratio for a building shall be approved upon demonstration of the following:

(1)

Total lot coverage or floor area ratio shall not be increased by more than ten percent (10%) of the lot coverage or floor area permitted by the underlying district regulations; and

(2)

The proposed alternative development will not result in the destruction or removal of mature trees on the lot with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the lot; and

(3)

The increase in lot coverage or floor area ratio will not result in a principal or accessory building(s) with an architectural design, scale, mass or building materials that are not aesthetically harmonious with that of other existing or proposed structures in the immediate vicinity; and

(4)

The proposed alternative development will not result in an obvious departure from the aesthetic character of in the immediate vicinity.

(e)

An alternative amount of landscaped open space shall be approved upon demonstration of the following:

(1)

Landscaped open space shall not be decreased by more than ten percent (10%) of the landscaped open space required by the applicable district regulations; and

(2)

The proposed alternative development will not result in the destruction or removal of mature trees on the lot with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the lot; and

(3)

The landscaped open space provided shall be used to shade and cool, direct wind movements, enhance architectural features, relate structure design to site, visually screen non-compatible uses and block noise generated by major roadways and intense use areas; and

(4)

The landscaped open space provided shall relate to any natural characteristics in such a way as to preserve and enhance their scenic and functional qualities; and

(5)

The proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity, and

(6)

The installation of the required percentage of landscaped parcel containing a previously approved and existing building, would necessitate a decrease in the number of parking spaces provided, or necessitate a decrease in the square footage of an existing building on the site; and

(7)

That 20% more lot or street trees are provided on the site or within the adjacent rights-of-way, respectively; said trees to be of a type and size as required by Chapter 18A; and

(8)

That an additional number of shrubs shall be provided commensurate with the trees in (7) above, said shrubs to be of a number, type and size as required by Chapter 18A.

(f)

An alternative lot area and frontage shall be approved upon demonstration of at least one of the following:

(1)

The proposed lot area and frontage shall permit the development or redevelopment of a structure(s) on a lot, parcel or tract of land where such structure(s) would not otherwise be permitted by the underlying district regulations due to the size or configuration of the parcel proposed for alternative development, provided that:

(A)

The lot, parcel or tract is under lawful separate ownership from any contiguous property; and

(B)

The proposed alternative development will not result in the further subdivision of land; and

(C)

The size and dimensions of the lot, parcel or tract are sufficient to provide all setbacks required by the underlying district regulations; and

(D)

The area of the lot, parcel or tract is not less than ninety percent (90%) of the minimum lot area required by the underlying district regulations; and

(E)

The proposed alternative development does not departure from the aesthetic character of the immediate vicinity; and

(F)

The lot, parcel or tract proposed for alternative development does not adjoin or lie adjacent to a discordant use; and

(G)

The frontage dimension of the lot, parcel or tract is not less than ninety percent (90%) of the minimum frontage required by the applicable district regulations, except that the frontage dimension of a flag-lot, parcel or tract shall be permitted to be reduced to the minimum width necessary to allow vehicular access as determined by the County; and

(H)

The resultant frontage dimension of the lot, parcel or tract provides vehicular ingress and egress to all resulting lots, parcels or tracts, including on-site access to emergency equipment.

(2)

The proposed alternative development results in landscaped open space, community design, amenities or preservation of natural resources that enhances the function or aesthetic character of the immediate vicinity in a manner not otherwise achievable through application of the applicable district regulations, provided that:

(A)

The number of lots of the proposed alternative development does not exceed that normally permitted by the lot area dimensions of the underlying district regulations; and

(B)

The size and dimensions of each lot, parcel or tract development are sufficient to provide all setbacks required by the underlying district regulations, or, if applicable, any prior zoning actions for similar uses issued prior to the effective date of this ordinance (May 2, 2003); and

(C)

The area of each lot, parcel or tract is not less than eighty percent (80%) of the area required by the applicable district regulations; and

(D)

The proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity; and

(E)

The lot, parcel or tract proposed for alternative development does not adjoin or lie adjacent to a discordant use; and

(F)

The resultant frontage of the lot, parcel or tract provides vehicular ingress and egress to all resulting lots, parcels or tracts, including on-site access to emergency equipment.

(3)

The proposed lot area and frontage is such that:

(A)

The proposed alternative development will not result in the creation of more than two (2) lots, parcels or tracts; and

(B)

The size and dimensions of each lot, parcel or tract are sufficient to provide all setbacks required by the applicable district regulations; and

(C)

No lot area shall be less than the smaller of:

(i)

Ninety percent (90%) of the lot area required by the applicable district regulations; or

(ii)

The average area of the developed lots, parcels or tracts in the immediate vicinity within the same zoning district; and

(D)

The proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity; and

(E)

The parcel proposed for alternative development does not adjoin or lie adjacent to a discordant use; and

(F)

The resultant frontage provides vehicular ingress and egress to all resulting lots, parcels or tracts, including on-site access to emergency equipment.

(g)

An alternative maximum height of walls, hedges or fences shall be approved upon demonstration of the following:

(1)

No wall, hedge or fence shall exceed ten (10) feet in height when adjoining BU or IU zoned lot or parcel; no wall, hedge or fence shall exceed eight (8) feet when adjoining a discordant use, and

(2)

No wall, hedge or fence located in a front or side street setback required by the applicable district regulations shall exceed six (6) feet in height; and

(3)

The additional height of a proposed wall, hedge or fence will not obscure in whole or in part an existing view or vista to any landmark, natural area, or waterbody from any window or door of a building on an adjoining discordant use; and

(4)

Proposed walls or fences shall be:

(A)

Articulated to avoid the appearance of a "blank wall" when viewed from adjoining property, or

(B)

Improved with landscaping material that is at least three (3) feet in height at time of planting, located along the length of the wall between the wall and the adjoining property, accompanied by specific provision for the maintenance of the landscaping, such as but not limited to, an agreement from the landowner regarding its maintenance in recordable form from the adjoining property owner, or

(C)

Where facing a public right-of-way, set back at least two and one-half (2½) feet from the right-of-way line and extensively landscaped with shrubs of a minimum of three (3) feet in height when measured immediately after planting, which will form a continuous, unbroken, solid, visual screen within one (1) year after time of planting; hedges of a minimum of three (3) feet in height immediately after planting, which will form a continuous, unbroken, solid, visual screen within one (1) year after time of planting; and/or climbing vines of a minimum of thirty-six (36) inches in height immediately after planting; and

(5)

Proposed fences shall be constructed or installed so that all sides of the fence are "finished" in accordance with the applicable regulations; and

(6)

Proposed fences are constructed of durable materials and are decorative; and

(7)

Proposed fences are not comprised of chain link or other wire mesh, unless hedges totally screen the fence; and

(8)

Safe sight distance triangles are maintained pursuant to this Code.

(h)

An alternative placement of a required perimeter wall setback from the property line(s) of a parcel where said property line adjoins or lies across the street right-of-way from a residential district, shall be approved after public hearing upon demonstration of the following:

(1)

The setback of the wall is the minimum distance necessary so as not to encroach into an existing utility or landscape easement(s); and

(2)

That visual screening for the wall by way of landscaping is included in the easement area to prevent graffiti vandalism in a manner provided by this Code; and

(3)

That a suitable mechanism for maintenance of the landscaped area by the property owner, tenant association or similar association be provided in the form of a covenant running with the land.

(i)

An alternative opening in a wall otherwise required by this Code to be a solid, unbroken barrier when a parcel adjoins or lies adjacent to a residential district, shall be approved after public hearing upon demonstration of the following:

(1)

The width of the wall opening is the minimum width necessary for pedestrians to access the parcel from adjoining or adjacent residential development(s); and

(2)

The wall opening is immediately adjoining or adjacent to a residential lot, parcel or tract which is restricted in use as common open space.

(j)

An alternative reduction in the number of required parking spaces shall be approved after public hearing upon demonstration of the following:

(1)

The alternative reduction of the number of required parking spaces does not apply to parking spaces for the disabled, parking spaces for persons transporting small children, nor to bicycle racks or other means of bicycle storage; and either:

(2)

The total number of required parking spaces is not reduced below ten percent (10%); and

(A)

The lot, parcel or tract is located within six hundred and sixty (660) feet of an existing transportation corridor such as a Major Roadway identified on the Land Use Plan (LUP) map, within one-quarter (¼) mile from existing rail transit stations or existing express busway stops; or

(B)

The hours of operation of multiple commercial uses within the development vary and do not overlap and a recordable agreement is provided which restricts the hours of operation; or

(3)

The alternative development involves a mixed-use project in which the number of off-street parking spaces is calculated by applying the Urban Land Institute (ULI) Shared Parking Methodology to the required number of parking spaces.

(k)

Notwithstanding the foregoing, no proposed alternative development shall be approved upon demonstration that the proposed alternative development:

(1)

Will result in a significant diminution of the value of property in the immediate vicinity; or

(2)

Will have substantial negative impact on public safety due to unsafe automobile movements, heightened vehicular-pedestrian conflicts, or heightened risk of fire; or

(3)

Will result in a materially greater adverse impact on public services and facilities than the impact that would result from development of the same parcel pursuant to the underlying district regulations.

(l)

Proposed alternative development under this subsection shall provide additional amenities or buffering to mitigate the impacts of the development as approved, where the amenities or buffering expressly required by this subsection are insufficient to mitigate the impacts of the development. The purpose of the amenities or buffering elements shall be to preserve and protect the economic viability of any commercial enterprises proposed within the approved development and the quality of life of residents and other owners of property in the immediate vicinity in a manner comparable to that ensured by the underlying district regulations. Examples of such amenities include but are not limited to: active or passive recreational facilities, landscaped open space over and above that normally required by the code, additional trees or landscaping materials, the inclusion of residential use(s), convenient pedestrian connection(s) to adjacent residential development(s), convenient covered bus stops or pick-up areas for transportation services, sidewalks (including improvements, linkages, or additional width), bicycle paths, buffer areas or berms, street furniture, undergrounding of utility lines, monument signage (where detached signs are allowed) or limited and cohesive wall signage, and decorative street lighting. In determining which amenities or buffering elements are appropriate, the following shall be considered:

(A)

The types of needs of the residents or other owners immediate vicinity and the needs of the business owners and employees of the parcel proposed for development that would likely be occasioned by the development, including, but not limited to, recreational, open space, transportation, aesthetic amenities, and buffering from adverse impacts; and

(B)

The proportionality between the impacts on the residents or other owners of property of parcel(s) in the immediate vicinity and the amenities or buffering required. For example, a reduction in setbacks for numerous lots or significantly large commercial buildings may warrant the provision of additional landscaped open space.

(4)

Modification or Elimination of Conditions and Covenants After Public Hearing. The Community Zoning Appeals Board shall approve applications to modify or eliminate any condition or part thereof which has been imposed by any zoning action, and to modify or eliminate any restrictive covenants, or parts thereof, accepted at public hearing, upon demonstration at public hearing that the requirements of at least one of the following paragraphs have been met. Upon demonstration that such requirements have been met, an application may be approved as to a portion of the property encumbered by the condition or the restrictive covenant where the condition or restrictive covenant is capable of being applied separately and in full force as to the remaining portion of the property that is not a part of the application, and both the application portion and the remaining portion of the property will be in compliance with all other applicable requirements of prior zoning actions and of this chapter.

I.

Modification or Elimination of Conditions and Covenants Associated with Voluntarily Abandoned Zoning Actions. The Community Zoning Appeals Board shall approve an application to modify or eliminate a condition or part thereof, or a restrictive covenant or part thereof, where it is demonstrated that the condition, restrictive covenant or part thereof was imposed to prevent or mitigate the adverse impacts of a zoning action that has been entirely and voluntarily abandoned, in that:

(A)

The applicant has provided a sworn affidavit stating that the applicant has sufficient title and authority to abandon the development rights under the zoning action for the property for which the modification or elimination is sought to abandon the zoning action and all rights thereunder, and stating that no material changes to the character or use of the land have ever been undertaken pursuant to the zoning action; and

(B)

The development rights granted by the zoning action have been voluntarily abandoned in writing on a form approved by the Director; and

(C)

Abandonment of the zoning action will not cause the subject property to fail to comply with any applicable provision of this Code or the Comprehensive Development Master Plan; and

(D)

The zoning action under which the condition or restrictive covenant was imposed or accepted was not a district boundary change.

II.

Modification or Elimination of Conditions and Restrictive Covenants That Are Satisfied or Moot. The Community Zoning Appeals Board shall approve an application to modify or eliminate a condition or part thereof, or a restrictive covenant or part thereof, where it is demonstrated by one of the following that the condition, restrictive covenant or part thereof either is satisfied or is moot:

(A)

Satisfied conditions, covenants, or restrictions. The requirements imposed by a condition, restrictive covenant or part thereof do not create a continuing obligation, and are fully completed or satisfied; and, in the case of a restrictive covenant, any procedural or approval requirement for its modification or elimination is satisfied.

(B)

Moot conditions, covenants, or restrictions. The condition, restrictive covenant or part thereof is moot in that it can no longer serve the purpose for which it was imposed. A condition, restrictive covenant or part thereof in effect for a period of more than five (5) years shall be determined to be moot upon demonstration of one of the four (4) following circumstances:

1.

The purpose of the condition, restrictive covenant or part thereof is apparent from the zoning record of the subject property, including record facts pertaining to the character of the subject property and its immediate vicinity, and the impacts that were projected to be generated by the zoning action at the time the condition or covenant was imposed; and either

(a)

The property subject to the condition or covenant has been developed in a manner or to an extent which does not, and under existing zoning approvals cannot, generate the adverse impacts intended to be prevented or mitigated by the condition or covenant; or

(b)

Since the imposition of the condition or covenant, all abutting parcels and the immediate vicinity have been zoned or developed in a manner or to an extent that the impacts previously anticipated or projected to be prevented or mitigated by the condition or restrictive covenant are not, and cannot be, adverse to the abutting parcels or the immediate vicinity.

2.

The purpose of the condition, restrictive covenant or part thereof is not apparent from the zoning record of the subject property, including record facts pertaining to the character of the subject property and its immediate vicinity, and

(a)

The condition, restrictive covenant or part thereof if imposed under current circumstances, would not and could not mitigate or prevent any describable harm or create any describable benefit to the public or to owners or residents of property in the immediate vicinity to a degree that is greater than de minimus; and

(b)

The condition or restrictive covenant does not include a date of expiration, or

3.

The condition or restrictive covenant for which modification or elimination is sought involves the timing or phasing of development, and:

(a)

The development which is the subject of the condition or restrictive covenant is completed; and

(b)

No enforcement action regarding the condition or restrictive covenant has been initiated.

4.

The condition or restrictive covenant for which modification or elimination is sought involved only the timeliness of filing or recording of a document, and:

(a)

The failure to file or record the document was due to circumstances beyond the control of the applicant, or to excusable neglect; and

(b)

No one is prejudiced by the modification or elimination of the condition or restrictive covenant regarding the timing of the filing or recording; and

(c)

The document has been recorded or filed subsequent to the deadline set by the original application, and accepted by the County.

III.

Modification or Elimination of Conditions and Restrictive Covenants When No New Adverse Impacts Will Result. The Community Zoning Appeals Board shall approve an application to modify or eliminate a condition or part thereof, or a restrictive covenant or part thereof, where the applicant demonstrates that the modification or elimination will not result in a material new adverse impact on the public health, safety, welfare, or aesthetic values, according to the following criteria:

(A)

If the request includes a modification or elimination of conditions or restrictive covenants imposed simultaneously with a district boundary change, the subject property would satisfy all current requirements and standards for a district boundary change to the property's present zoning district without the condition or restrictive covenant, or else the modification or elimination is sought in connection with an application for rezoning to a different district. For purposes of this requirement, new conditions or restrictive covenants may be imposed or proffered to satisfy such requirements and standards; and

(B)

The modification or elimination of the condition, restrictive covenant, or part thereof will not create new adverse impacts. The application will be deemed not to create new adverse impacts upon demonstration of the following:

1.

The modification or elimination will result in an increase of not more than 10% in trips generated above that generated by the approved development, except that trips generated in excess of 10% shall be permitted where completely mitigated by increased capacity constructed since the current development was approved. Trip generation shall be calculated based on the most current methodology applied by the County;

2.

The modification or elimination will result in an increase in projected demand for local parks of no more than 10% or ⅕ acre, whichever is greater, except that demand in excess of 10% or ⅕ acre shall be permitted if there is sufficient capacity of local parks to accommodate the increase in demand created by the modification;

3.

The modification or elimination will result in an increase in demand placed on public stormwater drainage systems of not more than 10%;

4.

The modification or elimination will result in a projected increase in the number of school-age children residing on the subject property of not more than ten percent (10%), or not more than three (3) school-age children, whichever is greater;

5.

The modification or elimination will not result in any increase in potable water, sanitary sewer, or solid waste disposal demand for which adequate capacity is not available, or any change in existing or planned facilities will not affect the level of service of potable water, sanitary sewer, or solid waste disposal;

6.

The modification or elimination will not result in any material increase in the risk of potential for discharge or spillage of pollutants, or generation of carbon monoxide at unsafe levels;

7.

The modification or elimination will not result in any material increase in the potential for damage to jurisdictional wetlands;

8.

The modification or elimination will not result in a reduction in the area under tree canopy of more than 10%;

9.

The modification or elimination will not result in any material increase in the risk of smoke, fire, odors, gases, excessive noise or vibration;

10.

The modification or elimination will result in an increase in building cubic content on the subject property of no more than 10%, or no more than 10% of the median building cubic content on similarly zoned parcels in the immediate vicinity, whichever is larger;

11.

The modification or elimination will not result in a decrease in the features or landscaping that buffer the existing use from properties in the immediate vicinity;

12.

The modification or elimination will not result in any material decrease in the privacy enjoyed by adjoining properties;

13.

The modification or elimination will not result in any material diminution of an existing view or vista to any landmark, natural area, or waterbody from any window or door in any residential unit on an adjoining parcel of land;

14.

The modification or elimination will not result in any material increase in the potential for vehicular-pedestrian conflicts;

15.

The modification or elimination will not result in any material and obvious departure from the aesthetic character of the immediate vicinity, taking into account the architectural design, scale, height, mass and building materials of existing structures, pattern of development and open space;

16.

The modification or elimination will not result in any material increase in the area of shadow, or of light from outdoor lighting, cast onto adjacent parcels;

17.

The modification or elimination will not result in any material change in the manner or hours of operation on the subject property so differing from the similar existing or approved uses in the immediate vicinity that the convenient, safe, peaceful or intended uses of such uses is interrupted or materially diminished;

18.

The modification or elimination will not result in any material change in the density or intensity of use of the subject property so differing from the density or intensity of other existing or approved uses in the immediate vicinity that the subject property would represent an obvious departure from the established development pattern of the immediate vicinity;

19.

The modification or elimination will not result in any material change in the type of use of the subject property so differing from the existing or approved uses in the immediate vicinity that the subject property would represent an obvious departure from the established pattern of use in the immediate vicinity;

20.

The modification or elimination will not result in a use of land that will have a significant adverse impact upon the value of properties in the immediate vicinity; and

21.

The modification or elimination will not result in a material increase in height or volume of open lot uses or facilities, or a material increase in intensity of allowed open lot uses, including, but not limited to, outdoor storage of products, materials or equipment, fleamarkets, carnivals, telecommunications facilities, concrete and asphalt batching plants, landfills and private playgrounds and recreational facilities.

(C)

Modification or elimination of the condition, restrictive covenant or part thereof will not result in a use of land that will have a significant adverse impact upon the value of properties in the immediate vicinity; and

(D)

All applicable requirements of the underlying zoning district or if applicable any prior zoning action or administrative action, are satisfied.

IV.

Modification of Conditions and Restrictive Covenants to Extend Timing or Phasing Deadlines. The Community Zoning Appeals Board shall approve an application to modify a condition or part thereof, or a restrictive covenant or part thereof that is related solely to the timing or phasing of development, where the applicant demonstrates that it has been reasonably diligent in fulfilling its obligations under the condition or restrictive covenant, but is unable to complete the obligation within the time set forth in the condition or restrictive covenant, and:

(A)

An increase in time frames, deadlines, or phasing schedules will not result in a change of circumstances which would create a material delay between the approved development and the provision of public facilities and services or other improvements necessary or planned to mitigate the impact of the development; or

(B)

Impossibility, force majeure, a non-self-created inability to secure a required right-of-way, actions of another governmental entity, or other similar circumstance beyond the direct control of the applicant or owner prevents adherence to the time frames, deadlines, or phasing schedules set forth in the condition or restrictive covenant sought to be modified.

No extension of timing or phasing shall be approved if it is demonstrated that that the extension of timing or phasing deadlines will substantially diminish property values in the immediate vicinity, will pose a continued risk to human life or safety or to the environment, will constitute a nuisance, and will constitute an obvious and deleterious use adversely and materially impacting the community character, taking into account changes in the immediate vicinity occurring since the condition or restrictive covenant was imposed or accepted.

V.

Modification or Elimination of Conditions and Restrictive Covenants After Public Hearing, Where Public Benefits Are Created or Enhanced to a Level or Degree that Clearly Outweighs Additional New Public Burdens. The Community Zoning Appeals Board shall approve an application to modify or eliminate a condition or part thereof, or a restrictive covenant or part thereof, where demonstratively greater public benefit will result from the modification or elimination than the resulting public burden as measured by the following:

(A)

Approval of the application will result in the provision of public benefits in two (2) or more of the following categories of public benefits:

1.

Enhancement and/or preservation of substantial open space, public parks, environmentally sensitive land, or natural or historic resources in terms of one or more of the following:

(a)

Provision of additional on- or off-site open space, configured in such a manner that it provides a public benefit in terms of either public use or improved aesthetics when viewed from public rights-of-way (except where 2 (d) below is relied upon); or

(b)

An increase in the amount of land available for public parks acceptable to the Park and Recreation Department, or in the recreational facilities of public parks; or

(c)

Perpetual preservation of "environmentally endangered lands"; or

(d)

Perpetual preservation of additional wetlands (which may include, in addition, restoration or enhancement); or

(e)

Removal of a use or structure that either has an adverse effect on a wellfield or aquifer recharge area, or that poses a high risk of wellfield contamination, and replacement with a use or structure that significantly lessens the impact or risk; or

(f)

Removal, or reduction of the intensity of a use, that results in a substantial reduction of risk of groundwater contamination; or

(g)

Preservation of designated historic resources or rehabilitation of contributing historic structures.

2.

A substantial improvement to the character of the immediate vicinity by one or more of the following means:

(a)

Elimination or rehabilitation of blighted buildings or other blighting influences; or

(b)

Substantial reduction of "sign clutter," where the character of the immediate vicinity is largely defined by an abundance of signage; or

(c)

Relocation of utility lines underground, where the character of the immediate vicinity is heavily impacted by overhead utilities; or

(d)

Substantial improvements to landscaping or streetscaping (except where 1(a) is relied upon); or

(e)

Substantial reduction in excessive noise, smoke, vibration, odors, gases, dust, risk of pollutants, or damage to jurisdictional wetlands.

3.

Elimination of uses that are inappropriately located, by either:

(a)

Abandonment and elimination of a lawful existing nonconforming use; or

(b)

Elimination of a lawful use or building which, although not legally nonconforming, represents an obvious departure from the established pattern of development or use in the immediate vicinity.

4.

Provision of one or more of the following facilities or services in and for locations in which there is a demonstrated need:

(a)

Schools or vocational training facilities; or

(b)

Day care services for children or the elderly; or

(c)

A police station or substation; or

(d)

A fire station; or

(e)

A library; or

(f)

Public buildings and facilities; or

(g)

Water or sanitary sewer lines.

5.

Direct and specific implementation of adopted land use or community development plans of Miami-Dade County, by:

(a)

Implementation of two or more preferred development types or scenarios from the Miami-Dade County Urban Design Manual; or

(b)

Implementation of the "guidelines for urban form" in the Land Use Element of the Comprehensive Development Master Plan; or

(c)

Implementation of a portion of the Adopted Action Plan of the Consolidated Plan of the Miami-Dade County Office of Community and Economic Development.

6.

A benefit to the function of the transportation network in the immediate vicinity, in terms of one or more of the following:

(a)

A substantial decrease in trip generation during hours of peak use; or

(b)

An increase in the proportion of pedestrian, bicycle, or transit trips in relation to total daily trips in the immediate vicinity by all modes of transportation as a result of providing multi-modal amenities or mixed-use development; or

(c)

An improvement in the quality, capacity, and function of pedestrian and bicycle circulation systems in the immediate vicinity of the subject property; or

(d)

A reduction in vehicle miles attributable to dwelling units within a one-half (½) mile radius of the subject property; or

(e)

Improvements to one or more roadways in the immediate vicinity that increase capacity or improve traffic flow or traffic safety beyond the marginal traffic impacts of the proposed development.

7.

Improvements to the supply of affordable housing, by

(a)

Development of affordable housing for very low, low, and moderate income households in a location where the need for such housing has been identified pursuant to the Housing Element of the Comprehensive Development Master Plan or other adopted affordable housing initiatives; or

(b)

Rehabilitation or redevelopment of substandard housing units resulting in an increase in the number of very low, low, and moderate income units provided on the site of the rehabilitation or redevelopment.

8.

The creation of 15 or more new permanent jobs.

9.

Substantial improvement to the design of the subject property through improvements in two or more of the following:

(a)

Pedestrian, bicycle, or vehicular access and circulation; or

(b)

The design of parking areas; or

(c)

Drainage or stormwater retention and treatment; or

(d)

Connectivity, by elimination of dead-end, cul-de-sac or similar street types, or elimination of walled-in residential communities, or by providing streets that interconnect within the development and connect to adjacent neighborhoods and rights-of-way.

(B)

Notwithstanding the provisions of the preceding paragraphs, no application will be approved under this subsection if such approval would result in:

1.

A use of land which will have a significant adverse effect upon the value of properties in the immediate vicinity;

2.

Community design, architecture, or layout and orientation of buildings, open space, or amenities that is inconsistent with and deleterious to the aesthetic character of the immediate vicinity;

3.

A material change in the density, intensity, or use of the subject property that so differs from the density, intensity, or use of other existing or approved development in the immediate vicinity that the subject property would represent an obvious and significant departure from the established development pattern of the immediate vicinity which has a deleterious effect on its community character;

4.

A substantial degradation of localized traffic patterns or a substantial adverse impact on the roadway network;

5.

Unmitigated demands on potable water, sanitary sewer, or stormwater treatment systems which exceed the capacity of those systems; or

6.

A new or continued and substantial risk to human life or safety or to the environment, or a nuisance; or

7.

A material increase in height or volume of open lot uses or facilities, or a material increase in intensity of allowed open lot uses, including, but not limited to, such open lot uses as outdoor storage of products, materials or equipment, fleamarkets, carnivals, telecommunications facilities, concrete and asphalt batching plants, landfills and private playgrounds and recreational facilities;

The Community Zoning Appeals Board shall impose such conditions and requirements in connection with an approval under this subsection as shall prevent or mitigate any resulting adverse impacts to the County or to any aggrieved person who has reasonably, demonstrably and detrimentally relied upon the condition or covenant sought to be modified or eliminated.

VI.

Modification or Elimination of Conditions or Restrictive Covenants After Public Hearing, Where the Conditions or Restrictive Covenants were Accepted or Imposed Simultaneously with a District Boundary Change. The Community Zoning Appeals Board shall approve an application to modify or eliminate a condition or part thereof, or a restrictive covenant or part thereof, which requires development of a specific site plan and which was accepted or imposed simultaneously with a district boundary change, where it is demonstrated that:

(A)

The subject property would satisfy all current requirements and standards for a district boundary change to the property's present zoning district without the condition or restrictive covenant, or else the modification or elimination in sought in connection with an application for rezoning to a different district. For purposes of this requirement, new conditions or restrictive covenants may be imposed or proffered to satisfy such requirements and standards.

(B)

The Community Zoning Appeals Board shall impose such conditions and requirements in connection with an approval under this subsection as shall prevent or mitigate any resulting adverse impacts to the County or to any aggrieved person who has reasonably, demonstrably and detrimentally relied upon the condition or covenant sought to be modified or eliminated.

(C)

Notwithstanding the provisions of the preceding paragraphs, no application will be approved under this subsection if such approval would result in:

1.

A use of land which will have a significant adverse effect upon the value of properties in the immediate vicinity;

2.

Community design, architecture, or layout and orientation of buildings, open space, or amenities that is inconsistent with and deleterious to the aesthetic character of the immediate vicinity;

3.

A material change in the density, intensity, or use of the subject property that so differs from the density, intensity, or use of other existing or approved development in the immediate vicinity that the subject property would represent an obvious and significant departure from the established development pattern of the immediate vicinity which has a deleterious effect on its community character;

4.

A substantial degradation of localized traffic patterns or a substantial adverse impact on the roadway network;

5.

Unmitigated demands on potable water, sanitary sewer, or stormwater treatment systems which exceed the capacity of those systems; or

6.

A continued and substantial risk to human life or safety or to the environment, or a nuisance.

(5)

Wireless Supported Service Facilities, including Antenna Support Structures. This subsection provides for the establishment of criteria, after public hearing, to hear and grant applications to allow a Wireless Supported Service Facility, including Antenna Support Structures. In considering any application for approval hereunder, the Community Zoning Appeals Board shall consider the same subject to approval of a site plan or such other plans as necessary to demonstrate compliance with the standards herein.

(a)

Purpose. The purpose of this subsection is to create objective standards to regulate Wireless Supported Service Facilities, including Antenna Support Structures. Upon demonstration at public hearing that a zoning application for a Wireless Supported Service Facility, including Antenna Support Structures is in compliance with the standards herein and the underlying district regulations in Section 33-36.2 and does not contravene the enumerated public interest standards established herein, the Wireless Supported Service Facility, including any Antenna Support Structure, shall be approved.

1.

General standards:

a.

The approval of the Wireless Support Facility shall not cause the subject property to fail to comply with any portion of this Code or the Comprehensive Development Master Plan.

b.

The proposed Antenna Support Structure and related equipment shall comply with the underlying zoning district standard lot coverage regulations.

c.

The proposed Antenna Support Structure shall not involve any outdoor lighting fixture that casts light on the adjoining parcel of land at an intensity greater than that permitted by Section 33-4.1 of this Code, unless providing safety lighting as required by FCC or FAA regulations.

d.

A non-camouflaged Antenna Support Structure 100 feet in height or less, shall be setback from the property line of any existing residential dwelling and the property line of the nearest residentially zoned property located on a contiguous or adjacent parcel of land under different ownership a distance equal to 110 percent of the height of the Antenna Support Structure.

A non-camouflaged Antenna Support Structure exceeding 100 feet in height shall be setback a minimum of 200 feet from the property line of any existing residential dwelling and the property line of the nearest residentially zoned property located on a contiguous or adjacent parcel of land under different ownership, unless the Antenna Support Structure itself, excluding any Antennas attached thereto for the purposes of wireless communication, is otherwise substantially visually obscured by an intervening structure or landscaping (i.e., wall, building, trees etc.) in which case setback shall be equal to a minimum of 110 percent of the height of the Antenna Support Structure.

A survey, site plan or line of sight analysis illustrating this condition shall be provided by the applicant.

e.

The proposed Wireless Supported Service Facility shall provide adequate parking and loading and provide ingress and egress so that vehicles servicing the facility will not block vehicular and pedestrian traffic on abutting streets.

f.

The applicant's proposed Antenna Support Structure associated with the proposed Wireless Supported Service Facility shall be designed in such a manner that in the event of a structural failure, the failed portion of the Antenna Support Structure shall be totally contained within the parent tract.

g.

Proposed fences have the "unfinished" side, if any, directed inward toward the center of the leased parcel proposed for installation of the Antenna Support Structure and related equipment.

h.

Proposed fences will be constructed of durable materials and will not be comprised of chain link or other wire mesh, unless located in an AU or GU zoning districts.

i.

In the event a wall is used to screen the base of a non-camouflaged Antenna Support Structure or the equipment building structure, the wall shall be articulated to avoid the appearance of a "blank wall" when viewed from the adjoining property residentially zoned and developed under different ownership. In an effort to prevent graffiti vandalism, the following options shall be utilized for walls abutting zoned or dedicated rights-of-way:

1.

Wall with landscaping. The wall shall be setback two and one-half (2 ½) feet from the right-of-way line and the resulting setback area shall contain a continuous extensively landscaped buffer which must be maintained in a good healthy condition by the property owner, or where applicable, by the condominium, homeowners or similar association. The landscape buffer shall contain one (1) or more of the following planting materials:

a.

Shrubs. Shrubs shall be a minimum of three (3) feet in height when measured immediately after planting and shall be planted and maintained to form a continuous, unbroken, solid, visual screen within one (1) year after time of planting.

b.

Hedges. Hedges shall be a minimum of three (3) feet in height when measured immediately after planting and shall be planted and maintained to form a continuous, unbroken, solid, visual screen within one (1) year after time of planting.

c.

Vines. Climbing vines shall be a minimum of thirty-six (36) inches in height immediately after planting.

2.

Metal picket fence. Where a metal picket fence abutting a zoned or dedicated right-of-way is constructed in lieu of a decorative wall, landscaping shall not be required.

2.

Health and safety standards

a.

The proposed Wireless Support Service Facility shall not block vehicular or pedestrian traffic on adjacent uses or properties.

b.

The proposed Wireless Supported Service Facility shall be accessible to permit entry onto the property by fire, police and emergency services.

c.

The proposed Wireless Supported Service Facility shall comply with any applicable Miami-Dade County aviation requirements.

d.

Safe sight distance triangles are maintained pursuant to Section 33-11 of this Code.

3.

Environmental standards

a.

The proposed Antenna Support Structure and related equipment shall not result in the destruction of trees that have a diameter at breast height (as defined in Section 18A-3.(J) of this Code) of greater than 10 inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code.

b.

The proposed Wireless Supported Service Facility shall not be located in an officially designated natural forest community.

c.

The proposed Wireless Supported Service Facility shall not be located in an officially designated wildlife preserve.

d.

The applicant shall submit an environmental impact study prepared by a licensed environmental firm that the proposed Wireless Supported Service Facility will not affect endangered or threatened species or designated critical habitats as determined by the Endangered Species Act of 1974; and that the facility will not have a substantial deleterious impact on wildlife or protected plant species.

e.

The applicant shall submit a historical analysis prepared by a professional cultural specialist that the proposed Wireless Supported Service Facility shall not affect districts, sites, buildings, structures or objects of American history, architecture, archeology, engineering or culture, that are listed in the National Register of Historic Places or applicable Miami-Dade County or State of Florida historic preservation regulations.

f.

The proposed Wireless Supported Service Facility shall not be located on an Indian Religious site.

4.

Necessity standards.

a.

The applicant shall establish that there are no available existing Wireless Supported Service Facilities or buildings within the prospective provider's search area suitable for the installation of the provider's proposed Antennas due to one or more of the following circumstances:

(i)

Existing Wireless Supporting Service Facilities or buildings within the search area have insufficient structural capacity to support the proposed antennas and related equipment; or

(ii)

Existing Wireless Supported Service Facilities or buildings within the search area are not of sufficient height to resolve the lack of wireless service coverage or capacity in the area intended to be served by the proposed Wireless Supported Service Facility or to cure the signal interference problem in that area; or

(iii)

The proposed Antenna would cause radio frequency interference or other signal interference problems with existing Wireless Supported Service Facilities or buildings, or the Antenna on the existing Wireless Supported Service Facilities or buildings may cause signal interference with the provider's proposed Wireless Supported Service Facility; or

(iv)

The owner of an existing building or Wireless Supported Service Facility located within the provider's search area that has existing height and structural capacity and would otherwise resolve the lack of wireless service coverage, a deficiency in capacity or signal interference problems, has rejected the provider's reasonable attempts to locate its Wireless Supported Service Facility on its building or facility.

The applicant shall provide evidence of one or more criteria listed in 4(a)(i)—(iv) above with an affidavit from a radio frequency engineer, structural engineer, owner or authorized provider's representative acceptable to the Department, as applicable. For purposes of this section, search area shall mean the geographic area within which the provider can demonstrate that the Wireless Supported Service Facility must be located in order to resolve the lack of wireless service coverage, a deficiency in capacity or signal interference problems.

b.

The applicant shall demonstrate that the proposed Wireless Supported Service Facility will cure:

i.

Signal interference problems; or

ii.

A total lack of wireless service coverage or capacity among all providers in the area intended to be served by the proposed Wireless Supported Service Facility; and

iii.

Will allow its customers to make and maintain wireless calls on a reliable basis as defined by the provider's quality criteria; and

c.

The applicant shall provide information to permit independent verification of factual data relied upon by the applicant to establish 4(b) above, including, but not limited to the following:

i.

The purpose for the proposed Wireless Supported Service Facility; and

ii.

The following technical data for the proposed Wireless Supported Service Facility and for each existing, authorized, pending and proposed adjacent facility:

a.

Site name or other reference;

b.

Facility latitude and longitude;

c.

Site elevation;

d.

For each antenna at each of the included facilities:

i.

Height of antenna radiation center;

ii.

Antenna type and manufacturer;

iii.

Maximum effective radiated output power, including the maximum total power radiated from all channels;

iv.

Azimuth of main antenna lobe; and

v.

Beam tilt and null-fill of each antenna.

iii.

A complete up- and down-link power budget for the proposed Wireless Supported Service Facility, including any differences that may exist with the power budgets of the adjacent facilities, to ensure that all of the gain and loss factors used by the applicant are included in a verification analysis.

iv.

Complete descriptions of methodology, formulas, data presented in appropriate parameter data units (e.g., Erlangs, Watts, dBm, ft.), existing traffic studies and trend analyses if the proposed facility is intended to cure a lack of capacity, and any other information necessary for an independent engineer to verify statements concerning signal interference or lack of capacity or coverage; and

v.

Identification of any equipment that differs from industry standards.

d.

The applicant shall reimburse the department for fees charged to the department for independent verification of factual data relied upon by the applicant, as required pursuant to paragraph 4.c. above.

5.

Mitigation standards

a.

A non-camouflaged Antenna Support Structure or equipment building shall be located so that it does not obscure, in whole or in part, an existing view to any historically designated landmark, natural area, or natural water body (i.e., river, lake, ocean) from any residentially zoned property under different ownership.

b.

Existing landscaping, vegetation, trees, intervening buildings or permanent structures shall be utilized to the maximum extent possible to obscure the view of the non-camouflaged Antenna Support Structure from public right-of-way or residentially zoned property.

c.

Any proposed Antenna Support Structure shall be designed to accommodate the collocation of at least two (2) Providers.

d.

All new non-camouflaged Antenna Support Structures approved at public hearing after adoption of this Ordinance, when exceeding 125 feet in height, must be structurally designed to accommodate at least three (3) Providers.

e.

To minimize visual impact in all cases, new or reconstructed Antenna Support Structures shall:

(i)

If non-camouflaged, utilize non-reflective galvanized finish or coloration to blend in with the natural environment unless Federal Aviation Administration painting or markings are otherwise required. The part of the Antenna Support Structure that is viewed against the sky and all Antennas attached thereto shall be a single color, either light gray or similar neutral color; the part of the Antenna Support Structure and all Antennas not viewed against the sky shall also be colored to blend with its surrounding background and harmonize with the color of existing structures or vegetation, as applicable; and

(ii)

Be designed to preserve all vegetation to the maximum extent feasible to mitigate visual impact and create a buffer that harmonizes with the elements and characteristics of the existing parcel on which the Wireless Support Service Facility is located and adjacent properties; and

(iii)

Shall be designed to be harmonious with the architectural elements of the surrounding structures, such as bulk, massing and scale of surrounding properties; or be designed to blend and be harmonious with the principal structure on the property on which the Antenna Support Structure is proposed to be constructed and installed.

f.

A camouflaged Antenna Support Structure shall be designed as an artificial tree or to serve a purpose other than supporting antennas (i.e., lighting of sports facilities, transmission of electrical and/or telephone lines, flag poles).

g.

To reduce the visual impact, an Antenna Support Structure readily observable from residentially zoned districts located within the immediate vicinity of the leased parcel shall be a camouflaged Antenna Support Structure, unless the provider can demonstrate that an Antenna Support Structure of a monopole type would be less visually obtrusive or would reduce proliferation of additional Antenna Support Structures within the immediate vicinity of the search area of the leased parcel and thus reduce the cumulative visual impact caused by future additional Antenna Support Structures in the immediate vicinity. In all cases, Antenna Support Structures of the guyed wire or self-supporting lattice type for the purposes of providing wireless telecommunications services only, shall be prohibited within the immediate vicinity of all existing residentially zoned districts and residential structures, except that the parent tract of the application property site may contain a residential structure.

h.

If a non-camouflaged Antenna Support Structure cannot be readily observed from residentially zoned property located within the immediate vicinity of the leased parcel, strongest support shall be given in the following order from most preferred to least preferred Antenna Support Structure type: existing Antenna Support Structures, existing buildings or structures, monopole, lattice or self-supporting or, guyed wire.

i.

The architectural design, scale, mass, color, texture and building materials of any proposed equipment building structure shall be aesthetically harmonious with that of other existing or proposed structures or buildings on the parent and leased tracts and in the immediate vicinity.

j.

The accessory wireless equipment building used in conjunction with the proposed Wireless Supported Service Facility shall be designed to mitigate visual impact and be comparable with the scale and character of the existing structures on the subject property and in the immediate vicinity, or blend into natural surrounding vegetation or buildings through the use of color, building materials, textures, fencing or landscaping to minimize visibility from or otherwise make the appearance of the accessory wireless equipment building the least visually obtrusive to adjacent uses and properties, as well as pedestrian and vehicular traffic.

k.

If an alternative site exists, or could be constructed, for the Antenna Support Structure, that would provide substantially lesser impact upon residentially zoned districts located within the immediate vicinity of the proposed site and that would provide for a substantially equivalent level of coverage, interference or capacity mitigation as what the applicant demonstrated is necessary pursuant to Section 33-311(A)(18)(4)(b), then the applicant shall locate the proposed facility on the alternative site.

(b)

Alternative Development Option for Any Wireless Supported Facility, Including Antenna Support Structures. Upon appeal or direct application in specific cases to hear and grant approval, approval with conditions or denial of applications for an alternative site development option applicable to Wireless Supported Service Facilities, including Antenna Support Structures, approved pursuant to the standards set forth in Section 33-311(A)(18)(a) above and in Section 33-36.2, based on the following:

1.

Setbacks. An alternative development option setback for Antenna Support Structures and/or accessory wireless equipment buildings shall be approved after public hearing upon demonstration that the Antenna Support Structure is designed so that if the structure fails the failed portion of the structure will be contained within the parent tract and upon demonstration of the following:

(a)

The applicant has obtained the recordable consent of the owner(s) of the property abutting the property line from which relief from the setback requirement is requested; and

(b)

The applicant demonstrates that the setback requirement cannot be met on the property; and

1.

That any feasible alternative site available is in closer proximity to single-family, duplex or agriculturally zoned property; or

2.

That the modification to the setback requirement will reduce the visual impact of the Wireless Supported Service Facility; or

3.

The location of an Antenna Support Structure on a parcel that satisfies all setback and fall zone requirements will create a greater visual impact on adjacent or surrounding residential uses than the proposed site that requires a reduction of applicable setback requirements.

2.

Landscaping. An alternative site development option from the landscape requirements set forth in Section 18A-1(B)(2)(d) shall be granted to allow a Wireless Supported Service Facility to be screened in a manner other than as provided in that section upon demonstration by the applicant that the alternate method of landscape screening proposed mitigates the visual impact of the Wireless Supported Service Facility as effectively as screening in accordance with Section 18A-1(B)(2)(d).

3.

Lot Area/Parent Tract. An alternative development option from the minimum parent tract area required by this subsection for any Wireless Supported Service Facility shall be approved upon demonstration of the following:

a.

The size and dimensions of the lot are sufficient to provide all setbacks required by the underlying zoning district regulations or regulations of this subsection, whichever is greater; and

b.

The lot area is not less than ninety (90) percent of the minimum lot area required by the underlying zoning district regulations; and

c.

The density of the proposed alternative development does not exceed that permitted by the underlying zoning district regulations.

4.

Federal Telecommunications Act. Notwithstanding the foregoing, a Wireless Supported Service Facility including an Antenna Support Structure shall be permitted in any zoning district where necessary to avoid the prohibition or effective prohibition of the provision of personal wireless services or discrimination among wireless service providers as contemplated by the Federal Telecommunications Act, 47 U.S.C. § 332 (1996), as amended.

(6)

Alternative Site Development Option for Buildings and Structures in IU Zoning Districts. This subsection provides for the establishment of an alternative site development option, after public hearing, for buildings and structures permitted by the underlying district regulations, except residential buildings and structures and religious facilities, in the IU-1, IU-2, IU-3, and IU-C zoning districts, in accordance with the standards established herein. In considering any application for approval hereunder, the Community Zoning Appeals Board shall consider the same subject to approval of a site plan or such other plans as necessary to demonstrate compliance with the standards herein.

(a)

Purpose. The purpose of this subsection is to create objective standards to regulate the site-specific development of industrial buildings and structures in specified zoning districts. The standards provided in this subsection are alternatives to the generalized standards contained in regulations governing the specified zoning districts. The site development standards permit alternative patterns of site development in accordance with the Comprehensive Development Master Plan ("CDMP") where the public interest served by the underlying district regulations and CDMP will be served, and the objectives of the creative urban design, urban infill development and redevelopment, or the preservation and enhancement of property values will be promoted, as demonstrated by the proposed alternative development's compliance with the standards of this subsection. A zoning application for development in compliance with the alternative standards shall be approved upon demonstration at public hearing that the proposed development is in compliance with the applicable alternative standards and does not contravene the enumerated public interest standards established herein.

(b)

For the purposes of this subsection, the following term shall have the following meaning:

"Discordant Use" means adjacent land uses which:

1)

Have a different zoning district prefix, or

2)

Contain an existing or approved use which is otherwise allowable as of right in a different zoning district prefix.

(c)

Setbacks for a principal or accessory industrial building or structure shall be approved after public hearing upon demonstration of the following:

(1)

The character and design of the proposed alternative development will not result in a material diminution of the privacy of adjoining property; and

(2)

The proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity, taking into account existing structures and open space; and

(3)

The proposed alternative development will not reduce the amount of open space on the parcel proposed for alternative development by more than 20% of the landscaped open space percentage required by the applicable district regulations; and

(4)

Any area of shadow cast by the proposed alternative development upon an adjoining property will be no larger than would be cast by a structure constructed pursuant to the underlying district regulations, or will have no more than a de minimus impact on the use and enjoyment of the adjoining parcel of land; and

(5)

The proposed alternative development will not involve the installation or operation of any mechanical equipment closer to the adjoining parcel of land than any other portion of the proposed alternative development, unless such equipment is located within an enclosed, soundproofing structure and if located on the roof of such an alternative development shall be screened from ground view and from view at the level in which the installations are located, and shall be designed as an integral part of and harmonious with the building design; and

(6)

The proposed alternative development will not involve any outdoor lighting fixture that casts light on an adjoining parcel of land at an intensity greater than permitted by this Code; and

(7)

The architectural design, scale, mass, and building materials of any proposed structure(s) or addition(s) are aesthetically harmonious with that of other existing or proposed structure(s) or building(s) on the parcel proposed for alternative development; and

(8)

The wall(s) of any building within a front, side street or double frontage setback area or within a setback area adjacent to a discordant use, required by the underlying district regulations, shall be improved with architectural details and treatments that avoid the appearance of a "blank wall"; and

(9)

The proposed alternative development will not result in the destruction or removal of mature trees within a setback required by the underlying district regulations, with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the same side of the lot, parcel or tract; and

(10)

Any windows or doors in any building(s) to be located within an interior side or rear setback required by the underlying district regulations shall be designed and located so that they are not aligned directly across from facing windows or doors on building(s) of a discordant use located on an adjoining parcel of land; and

(11)

Total lot coverage shall not be increased by more than ten percent (10%) of the lot coverage permitted by the underlying district regulations; or a total floor area ratio shall not be increased by more than ten percent (10%) of the floor area ratio permitted by the underlying district regulations; and

(12)

The area within an interior side or rear setback required by the underlying district regulations located adjacent to a discordant use will not be used for off-street parking except:

(A)

In an enclosed garage where the garage door is located so that it is not aligned directly across from facing windows or doors on buildings of a discordant use located on an adjoining parcel of land; or

(B)

The off-street parking is buffered from property that abuts the setback area by a solid wall at least six (6) feet in height along the area of pavement and parking, with either: (i) articulation to avoid the appearance of a "blank wall" when viewed from the adjoining property, or (ii) landscaping that is at least three (3) feet in height at time of planting, located along the length of the wall between the wall and the adjoining property, accompanied by specific provision for the maintenance of the landscaping, such as but not limited to, an agreement regarding its maintenance in recordable form from the adjoining landowner; and

(13)

Any structure within an interior side setback required by the underlying district regulations:

(A)

Is screened from adjoining property by landscape material of sufficient size and composition to obscure at least sixty percent (60%), ninety percent (90%) if located adjoining or adjacent to a discordant use, of the proposed alternative development to a height of the lower fourteen (14) feet of such structure(s) at time of planting; or

(B)

Is screened from adjoining property by an opaque fence or wall at least eight (8) feet, six (6) feet if located adjoining or adjacent to a discordant use, in height that meets the standards set forth in paragraph (g) herein; and

(14)

Any structure not attached to a principal building and proposed to be located within a setback required by the underlying district regulations shall be separated from any other structure by at least 10 feet or the minimum distance to comply with fire safety standards, whichever is greater; and

(15)

When a principal or accessory building is proposed to be located within a setback required by the underlying district regulations, any enclosed portion of the upper floor of such building shall not extend beyond the first floor of such building within the setback; and

(16)

Safe sight distance triangles shall be maintained as required by this Code; and

(17)

The parcel proposed for alternative development shall continue to provide the required number of on-site parking spaces as required by this Code, except that off-site parking spaces may be provided in accordance with Section 33-128 of this Code; and

(18)

The parcel proposed for alternative development shall satisfy all other applicable underlying district regulations or, if applicable, prior zoning actions issued prior to the effective date of this ordinance (May 16, 2003), regulating setbacks, lot area and lot frontage, lot coverage, floor area ratio, landscaped open space and structure height; and

(19)

The proposed development will meet the following:

(A)

Interior side setbacks shall not be reduced by more than fifty percent (50%) of the side setbacks required by the underlying district regulations, or the minimum distance required to comply with fire safety standards, whichever is greater when the adjoining parcel of land is a BU or IU district; interior side setbacks shall not be reduced by more than twenty-five (25%) percent of the interior side setbacks required by the underlying district regulations when the adjoining parcel of land allows a discordant use;

(B)

Side street setbacks shall not be reduced by more than twenty-five (25%) of the underlying district regulations;

(C)

Front setbacks (including double-frontage setbacks) shall not be reduced by more than twenty-five (25%) percent of the setbacks required by the underlying district regulations; and

(D)

Rear setbacks shall not be reduced below fifty (50%) percent of the rear setback required by the underlying district regulations, or the minimum distance required to comply with fire safety standards, whichever is greater, when the adjoining parcel of land is a BU or IU district; rear setbacks shall not be reduced below twenty-five (25%) percent of the rear setback required by the underlying district regulations when the adjoining parcel of land allows a discordant use.

(E)

Setbacks between building(s) shall not be reduced below 10 feet, or the minimum distance required to comply with fire safety standards, whichever is greater.

(d)

A lot coverage or floor area ratio for an industrial building shall be approved upon demonstration of the following:

(1)

Total lot coverage or floor area ratio shall not be increased by more than ten percent (10%) of the lot coverage or floor area permitted by the underlying district regulations; and

(2)

The proposed alternative development will not result in the destruction or removal of mature trees on the lot with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the lot; and

(3)

The increase in lot coverage or floor area ratio will not result in a principal or accessory building(s) with an architectural design, scale, mass or building materials that are not aesthetically harmonious with that of other existing or proposed structures in the immediate vicinity; and

(4)

The proposed alternative development will not result in an obvious departure from the aesthetic character of in the immediate vicinity.

(e)

Landscaped open space for an industrial development shall be approved after public hearing upon demonstration of the following:

(1)

Landscaped open space shall not be decreased by more than ten percent (10%) of the landscape open space required by the applicable district regulations; and

(2)

The proposed alternative development will not result in the destruction or removal of mature trees on the lot with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the lot; and

(3)

The landscaped open space provided shall be used to shade and cool, direct wind movements, enhance architectural features, relate structure design to site, visually screen non-compatible uses and block noise generated by major roadways and intense use areas; and

(4)

The landscaped open space provided shall relate to any natural characteristics in such a way as to preserve and enhance their scenic and functional qualities; and

(5)

The proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity.

(6)

The installation of the required percentage of landscaped open space on an industrial site containing an existing building, would necessitate a decrease in the number of parking spaces provided, or necessitate a decrease in the square footage of an existing building on the site; and

(7)

That twenty percent (20%) more lot or street trees are provided on the site or within the adjacent rights-of-way, respectively; said trees to be of a type and size as required by Chapter 18A; and

(8)

That an additional number of shrubs shall be provided commensurate with the trees in (7) above; said shrubs to be of a number, type and size as required by Chapter 18A.

(f)

The lot area and frontage for industrial development shall be approved upon demonstration of at least one of the following:

(1)

The proposed lot area and frontage shall permit the development or redevelopment of an industrial building(s) on a lot, parcel or tract of land where such structure(s) would not otherwise be permitted by the underlying district regulations due to the size or configuration of the parcel proposed for alternative development, provided that:

(A)

The lot, parcel or tract is under lawful separate ownership from any contiguous property; and

(B)

The proposed alternative development will not result in the further subdivision of land; and

(C)

The size and dimensions of the lot, parcel or tract are sufficient to provide all setbacks required by the underlying district regulations; and

(D)

The area of the lot, parcel or tract is not less than ninety percent (90%) of the minimum lot area required by the underlying district regulations; and

(E)

The proposed alternative development does not result in an obvious departure from the aesthetic character of the immediate vicinity; and

(F)

The lot, parcel or tract proposed for alternative development does not adjoin or lie adjacent to a dissimilar use; and

(G)

The frontage dimension of the lot, parcel or tract is not less than ninety percent (90%) of the minimum frontage required by the applicable district regulations, except that the frontage dimension of a flag-lot, parcel or tract shall be permitted to be reduced to the minimum width necessary to allow vehicular access as determined by the County; and

(H)

The resultant frontage dimension of the lot, parcel or tract provides vehicular ingress and egress to all resulting lots, parcels or tracts, including on-site access to emergency equipment.

(2)

The proposed alternative development results in landscaped open space, community design, amenities or preservation of natural resources that enhances the function or aesthetic character of the immediate vicinity in a manner not otherwise achievable through application of the applicable district regulations, provided that:

(A)

The number of lots, parcels or tracts of the proposed alternative development does not exceed that normally permitted by the lot area dimensions of the underlying district regulations; and

(B)

The size and dimensions of each lot, parcel or tract in the proposed alternative development are sufficient to provide all setbacks required by the underlying district regulations, or, if applicable, any prior zoning actions for similar uses issued prior to the effective date of this ordinance May 16, 2003); and

(C)

The area of each lot, parcel or tract is not less than eighty percent (80%) of the area required by the applicable district regulations; and

(D)

The proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity; and

(E)

The lot, parcel or tract proposed for alternative development does not adjoin or lie adjacent to a dissimilar use; and

(F)

The resultant frontage of the lot, parcel or tract provides including on-site access to emergency equipment.

(3)

The proposed lot area and frontage is such that:

(A)

The proposed alternative development will not result in the creation of more than two (2) lots, parcels or tracts; and

(B)

The size and dimensions of each lot, parcel or tract are sufficient to provide all setbacks required by the applicable district regulations; and

(C)

No lot area shall be less than the smaller of:

(i)

Ninety percent (90%) of the lot area required by the applicable district regulations; or

(ii)

The average area of the developed lots, parcels or tracts in the immediate vicinity within the same zoning district; and

(D)

The proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity; and

(E)

The parcel proposed for alternative development does not adjoin or lie adjacent to a dissimilar use; and

(F)

The resultant frontage provides vehicular ingress and egress to all resulting lots, parcels or tracts, including on-site access to emergency equipment.

(g)

An alternative maximum height of walls, hedges or fences shall be approved upon demonstration of the following:

(1)

No wall, hedge or fence shall exceed ten (10) feet in height when adjoining BU or IU zoned lot or parcel; no wall, hedge or fence shall exceed eight (8) feet when adjoining a discordant use, and

(2)

No wall, hedge or fence located in a front or side street setback required by the applicable district regulations shall exceed six (6) feet in height; and

(3)

The additional height of a proposed wall, hedge or fence will not obscure in whole or in part an existing view or vista to any landmark, natural area, or waterbody from any window or door of a building on an adjoining discordant use; and

(4)

Proposed walls or fences shall be:

(A)

Articulated to avoid the appearance of a "blank wall" when viewed from adjoining property, or

(B)

Landscaped with landscaping that is at least three (3) feet in height at time of planting, located along the length of the wall between the wall and the adjoining property, accompanied by specific provision for the maintenance of the landscaping, such as but not limited to, an agreement from the landowner regarding its maintenance in recordable form from the adjoining property owner, or

(C)

Where facing a public right-of-way, set back at least two and one-half (2½) feet from the right-of-way line and extensively landscaped with shrubs of a minimum of three (3) feet in height when measured immediately after planting, which will form a continuous, unbroken, solid, visual screen within one (1) year after time of planting; hedges of a minimum of three (3) feet in height immediately after planting, which will form a continuous, unbroken, solid, visual screen within one (1) year after time of planting; and/or climbing vines of a minimum of thirty-six (36) inches in height immediately after planting; and

(5)

Proposed fences shall be constructed or installed so that all sides of the fence are "finished" in accordance with the applicable regulations; and

(6)

Proposed fences are constructed of durable materials and are decorative; and

(7)

Proposed fences are not comprised of chain link or other wire mesh, unless hedges totally screen the fence; and

(8)

Safe sight distance triangles are maintained pursuant to this Code.

(h)

An alternative placement of a required perimeter wall setback from the rear property line(s) of the IU site where said property line adjoins or lies across the street right-of-way from a residential district, shall be approved after public hearing upon demonstration of the following:

(1)

The setback of the wall is the minimum distance necessary so as not to encroach into existing utility or landscaped easement(s); and

(2)

That visual screening for the wall by way of landscaping is included in the easement area to prevent graffiti vandalism in a manner provided by this Code; and

(3)

That a suitable mechanism for maintenance of the landscaped area by the property owner, tenant association, or similar association be provided in the form of a covenant running with the land.

(i)

An alternative opening in a wall otherwise required by this Code to be a solid, unbroken barrier when an outdoor industrial use is required to be confined within an area enclosed with walls when the use adjoins or lies adjacent to a residential district, shall be approved after public hearing upon demonstration of the following:

(1)

That the width of the wall opening is the minimum width necessary for pedestrians to access the industrial site from adjoining or adjacent residential development(s); and

(2)

That the wall opening is immediately adjoining or adjacent to a residential lot, parcel or tract which is restricted in use as common open space.

(j)

An alternative reduction in the number of required parking spaces shall be approved on an IU site after public hearing upon demonstration of the following:

(1)

The alternative reduction of the number of parking spaces does not apply to parking spaces for the disabled, parking spaces for persons transporting small children, nor to bicycle racks or other means of bicycle storage; and either

(2)

The total number of required parking spaces is not reduced below 10%; and

(A)

The alternative reduction of the number of required parking spaces does the lot, parcel or tract is located within 660 feet of an existing transportation corridor such as a Major Roadway identified on the Land Use Plan (LUP) Map, within one-quarter (¼) mile from existing rail, transit stations, or existing express busway stops; or

(B)

The hours of operation of multiple industrial uses within the development vary and do not overlap and a recordable agreement is provided which restricts the hours of operation; or

(3)

The alternative development involves a mixed-use project in which the number of off-street parking spaces is calculated by applying the Urban Land Institute (ULI) Shared Parking Methodology to the required number of parking spaces.

(k)

Notwithstanding the foregoing, no proposed alternative development shall be approved upon demonstration that the proposed alternative development:

(1)

Will result in a significant diminution of the value of property in the immediate vicinity; or

(2)

Will have substantial negative impact on public safety due to unsafe automobile movements, heightened vehicular-pedestrian conflicts, or heightened risk of fire; or

(3)

Will result in a materially greater adverse impact on public services and facilities than the impact that would result from development of the same parcel pursuant to the underlying district regulations.

(l)

Proposed alternative development under this subsection shall provide additional amenities or buffering to mitigate the impacts of the development as approved, where the amenities or buffering expressly required by this subsection are insufficient to mitigate the impacts of the development. The purpose of the amenities or buffering elements shall be to preserve and protect the economic viability of any industrial enterprises proposed within the approved development and the quality of life of residents and other owners of property in the immediate vicinity in a manner comparable to that ensured by the underlying district regulations. Examples of such amenities include but are not limited to: active or passive recreational facilities, landscaped open space over and above that normally required by the code, additional trees or landscaping, convenient pedestrian connection(s) to adjacent residential development(s), convenient covered bus stops or pick-up areas for transportation services, sidewalks (including improvements, linkages, or additional width), bicycle paths, buffer areas or berms, street furniture, undergrounding of utility lines, monument signage (where detached signs are allowed) or limited wall signage, and decorative street lighting. In determining which amenities or buffering elements are appropriate, the following shall be considered:

(A)

The types of needs of the residents or other owners of property in the immediate vicinity and the needs of the occupants of the parcel proposed for development that would likely be occasioned by the development, including, but not limited to, recreational, open space, transportation, aesthetic amenities, and buffering from adverse impacts; and

(B)

The proportionality between the impacts on the residents or on other owners of property in parcel(s) in the immediate vicinity and the amenities or buffering required. For example, a reduction in lot area for numerous lots may warrant the provision of additional landscaped open space.

(7)

Alternative Site Development Option for Semi-Professional Office Buildings and Structures. This subsection provides for the establishment of an alternative site development option, after public hearing, for semi-professional office buildings and structures, when such uses are permitted by the underlying district regulations, in the RU-5 and RU-5A zoning districts, in accordance with the standards established herein. In considering any application for approval hereunder, the Community Zoning Appeals Board shall consider the same subject to approval of a site plan or such other plans as necessary to demonstrate compliance with the standards herein.

(a)

Purpose. The purpose of this subsection is to create objective standards to regulate the site-specific development of semi-professional office buildings and structures in specified zoning districts. The standards provided in this subsection are alternatives to the generalized standards contained in regulations governing the specified zoning districts. The site development standards permit alternative patterns of site development in accordance with the Comprehensive Development Master Plan ("CDMP") where the public interest served by the underlying district regulations and CDMP will be served, and the objectives of the creative urban design, urban infill development and redevelopment, or the preservation and enhancement of property values will be promoted, as demonstrated by the proposed alternative development's compliance with the standards of this subsection. A zoning application for development in compliance with the alternative standards shall be approved upon demonstration at public hearing that the proposed development is in compliance with the applicable alternative standards and does not contravene the enumerated public interest standards established herein.

(b)

For the purposes of this subsection, the following term shall have the following meanings:

"Discordant Use" means adjacent land uses which:

(1)

Are materially less intense or of a materially lesser density, or

(2)

Are materially different in their manner of hours of operation, or

(3)

Have a different zoning prefix, or

(4)

Contain an existing or approved use, which is otherwise allowable as of right in a different zoning district prefix.

(c)

Setbacks for a principal building, or accessory building or structure in the RU-5A, shall be approved after public hearing upon demonstration of the following:

(1)

The character and design of the proposed alternative development will not result in a material diminution of the privacy of adjoining property; and

(2)

The proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity, taking into account existing structures and open space; and

(3)

The proposed alternative development will not reduce the amount of open space on the parcel proposed for alternative development by more than twenty percent (20%) of the landscaped open space percentage required by the applicable district regulations; and

(4)

Any area of shadow cast by the proposed alternative development upon an adjoining property will be no larger than would be cast by a structure constructed pursuant to the underlying district regulations, or will have no more than a de minimus impact on the use and enjoyment of the adjoining parcel of land; and

(5)

The proposed alternative development will not involve the installation or operation of any mechanical equipment closer to the adjoining parcel of land than any other portion of the proposed alternative development, unless such equipment is located within an enclosed, soundproofing structure and if located on the roof of such an alternative development shall be screened from ground view and from view at the level in which the installations are located, and shall be designed as an integral part of and harmonious with the building design; and

(6)

The proposed alternative development will not involve any outdoor lighting fixture that casts light on an adjoining parcel of land at an intensity greater than permitted by this Code; and

(7)

The architectural design, scale, mass, and building materials of any proposed structure(s) or addition(s) are aesthetically harmonious with that of other existing or proposed structure(s) or building(s) on the parcel proposed for alternative development; and

(8)

The wall(s) of any building within a front, side street or double frontage setback area or within a setback area adjacent to a discordant use, required by the underlying district regulations, shall be improved with architectural details and treatments that avoid the appearance of a "blank wall"; and

(9)

The proposed alternative development will not result in the destruction or removal of mature trees within a setback required by the underlying district regulations, with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the same side of the lot, parcel or tract; and

(10)

Any windows or doors in any building(s) to be located within an interior side or rear setback required by the underlying district regulations shall be designed and located so that they are not aligned directly across from facing windows or doors on building(s) of a discordant use located on an adjoining parcel of land; and

(11)

Total lot coverage shall not be increased by more than ten percent (10%) of the lot coverage permitted by the underlying district regulations; or a total floor area ratio shall not be increased by more than ten percent (10%) of the floor area ratio permitted by the underlying district regulations; and

(12)

The area within an interior side or rear setback required by the underlying district regulations located adjacent to a discordant use will not be used for off-street parking except:

(A)

In an enclosed garage where the garage door is located so that it is not aligned directly across from facing windows or doors on buildings of a discordant use located on an adjoining parcel of land; or

(B)

If the off-street parking is buffered from property that abuts the setback area by a solid wall at least six (6) feet in height along the area of pavement and parking, with either:

(i)

Articulation to avoid the appearance of a "blank wall" when viewed from the adjoining property, or

(ii)

Landscaping that is at least three (3) feet in height at time of planting, located along the length of the wall between the wall and the adjoining property, accompanied by specific provision for the maintenance of the landscaping, such as but not limited to, an agreement regarding its maintenance in recordable form from the adjoining landowner; and

(13)

Any structure within an interior side setback required by the underlying district regulations:

(A)

Is screened from adjoining property by landscape material of sufficient size and composition to obscure at least eighty percent (80%) (if located adjoining or adjacent to a discordant use) of the proposed alternative development to a height of the lower fourteen (14) feet of such structure(s) at time of planting; or

(B)

Is screened from adjoining property by an opaque fence or wall at least five (5) feet in height, if located adjoining or adjacent to a discordant use, that meets the standards set forth in paragraph (g) herein; and

(14)

Any structure in the RU-5A district not attached to a principal building and proposed to be located within a setback required by the underlying district regulations shall be separated from any other structure by at least 10 feet or the minimum distance to comply with fire safety standards, whichever is greater; and

(15)

When a principal building, or accessory building in the RU-5A district, is proposed to be located within a setback required by the underlying district regulations, any enclosed portion of the upper floor of such building shall not extend beyond the first floor of such building within the setback; and

(16)

Safe sight distance triangles shall be maintained as required by this Code; and

(17)

The parcel proposed for alternative development shall continue to provide the required number of on-site parking spaces as required by this Code; and

(18)

The parcel proposed for alternative development shall satisfy underlying district regulations or, if applicable, prior zoning actions issued prior to the effective date of this ordinance (July 11, 2003), regulating setbacks, lot area and lot frontage, lot coverage, floor area ratio, landscaped open space and structure height; and

(19)

The proposed development will meet the following:

(A)

Interior side setbacks shall not be reduced by more than fifty percent (50%) of the side setbacks required by the underlying district regulations, or the minimum distance required to comply with fire safety standards, whichever is greater when the adjoining parcel of land is a RU-5, RU-5A, BU, IU, or OPD district or use provided, however, interior side setbacks shall not be reduced by more than twenty-five percent (25%) of the interior side setbacks required by the underlying district regulations when the adjoining parcel of land allows a discordant use.

(B)

Side street setbacks shall not be reduced by more than twenty-five percent (25%) of the underlying district regulations;

(C)

Front setbacks (including double-frontage setbacks) shall not be reduced by more than twenty-five percent (25%) of the setbacks required by the underlying district regulations; and

(D)

Rear setbacks shall not be reduced below fifty percent (50%) of the rear setback required by the underlying district regulations, or the minimum distance required to comply with fire safety standards, whichever is greater, when the adjoining parcel of land is a RU-5, RU-5A, BU, IU, or OPD district or use provided, however, rear setbacks shall not be reduced below twenty-five percent (25%) of the rear setback required by the underlying district regulations when the adjoining parcel of land allows a discordant use.

(E)

Setbacks between building(s) shall not be reduced below 10 feet, or the minimum distance required to comply with fire safety standards, whichever is greater.

(d)

An alternative lot coverage or floor area ratio for a building(s) shall be approved upon demonstration of the following:

(1)

Total lot coverage or floor area ratio shall not be increased by more than ten percent (10%) of the lot coverage or floor area permitted by the underlying district regulations; and

(2)

The proposed alternative development will not result in the destruction or removal of mature trees on the lot with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the lot; and

(3)

The increase in lot coverage or floor area ratio will not result in a principal buildings, or accessory building(s) in the RU-5A district, with an architectural design, scale, mass or building materials that are not aesthetically harmonious with that of other existing or proposed structures in the immediate vicinity; and

(4)

The proposed alternative development will not result in an obvious departure from the aesthetic character of in the immediate vicinity.

(e)

An alternative amount of landscaped open space shall be approved upon demonstration of the following:

(1)

Landscaped open space shall not be decreased by more than twenty percent (20%) of the landscape open space required by the applicable district regulations; and

(2)

The proposed alternative development will not result in the destruction or removal of mature trees on the lot with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the lot; and

(3)

The landscaped open space provided shall be used to shade and cool, direct wind movements, enhance architectural features, relate structure design to site, visually screen non-compatible uses and block noise generated by major roadways and intense use areas; and

(4)

The landscaped open space provided shall relate to any natural characteristics in such a way as to preserve and enhance their scenic and functional qualities; and

(5)

The proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity; and

(6)

The installation of the required percentage of landscaped open space on a parcel containing a previously approved and existing building, would necessitate a decrease in the number of parking spaces provided, or necessitate a decrease in the square footage of an existing building on the site; and

(7)

The total number of lot or street trees shall be increased by twenty percent (20%) greater than the number required by the underlying zoning district regulations, or by an additional twenty percent (20%) of the number of trees previously approved, whichever number is greater, and provided such trees are provided on the site or within the adjacent rights-of-way, respectively; said trees to be of a type and size as required by Chapter 18A; and

(8)

A prorata additional number of shrubs shall be provided commensurate with the trees in (7) above, said shrubs to be of a number, type and size as required by Chapter 18A.

(f)

An alternative lot area and frontage shall be approved upon demonstration of at least one of the following:

(1)

The proposed lot area and frontage shall permit the development or redevelopment of a structure(s) on a lot, parcel or tract of land where such structure(s) would not otherwise be permitted by the underlying district regulations due to the size or configuration of the parcel proposed for alternative development, provided that:

(A)

The lot, parcel or tract is under lawful separate ownership from any contiguous property; and

(B)

The proposed alternative development will not result in the further subdivision of land; and

(C)

The size and dimensions of the lot, parcel or tract are sufficient to provide all setbacks required by the underlying district regulations; and

(D)

The area of the lot, parcel or tract is not less than: seventy-five percent (75%) of the minimum lot area required by the underlying district regulations; or eighty-five percent (85%) of the underlying district regulations for an older subdivision of land caused by a conveyance or device of record prior to August 2, 1938, or a platted unrevoked subdivision recorded prior to August 2, 1938; and

(E)

The proposed alternative development does not result in an obvious departure from the aesthetic character of the immediate vicinity; and

(F)

The frontage dimension of the lot, parcel or tract is not less than: seventy-five percent (75%) of the minimum frontage required by the applicable district regulations; or eighty-five percent (85%) of the underlying district regulations for older subdivisions of land caused by a conveyance or device of record prior to August 2, 1938, or a platted unrevoked subdivision recorded prior to August 2, 1938, except that the frontage dimension of a flag-lot, parcel or tract shall be permitted to be reduced to the minimum width necessary to allow vehicular access as determined by the County; and

(G)

The resultant frontage dimension of the lot, parcel or tract provides vehicular ingress and egress to all resulting lots, parcels or tracts, including on-site access to emergency equipment; or

(2)

The proposed alternative development results in landscaped open space, community design, amenities or preservation of natural resources that enhances the function or aesthetic character of the immediate vicinity in a manner not otherwise achievable through application of the applicable district regulations, provided that:

(A)

The number of lots of the proposed alternative development does not exceed that normally permitted by the lot area dimensions of the underlying district regulations; and

(B)

The size and dimensions of each lot, parcel or tract in the proposed alternative development are sufficient to provide all setbacks required by the underlying district regulations, or, if applicable, any prior zoning actions for similar uses issued prior to the effective date of this ordinance (July 11, 2003); and

(C)

The area of each lot, parcel or tract is not less than eighty percent (80%) of the area required by the applicable district regulations; and

(D)

The proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity; and

(E)

The resultant frontage of the lot, parcel or tract provides vehicular ingress and egress to all resulting lots, parcels or tracts, including on-site access to emergency equipment, or

(3)

The proposed lot area and frontage is such that:

(A)

The proposed alternative development will not result in the creation of more than two (2) lots, parcels or tracts; and

(B)

The size and dimensions of each lot, parcel or tract are sufficient to provide all setbacks required by the applicable district regulations; and

(C)

No lot area shall be less than the smaller of:

(i)

Ninety percent (90%) of the lot area required by the applicable district regulations; or

(ii)

The average area of the developed lots, parcels or tracts in the immediate vicinity within the same zoning district; and

(D)

The proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity; and

(E)

The resultant frontage provides vehicular ingress and egress to all resulting lots, parcels or tracts, including on-site access to emergency equipment.

(g)

An alternative maximum height of walls, hedges or fences for a commercial development shall be approved upon demonstration of the following:

(1)

No wall, hedge or fence shall exceed eight (8) feet in height when adjoining RU-5, RU-5A, BU, IU or OPD zoned lands; no wall, hedge or fence shall exceed six (6) feet when adjoining a discordant use, and

(2)

No wall, hedge or fence located in a front or side street setback required by the applicable district regulations shall exceed six (6) feet in height; and

(3)

The additional height of a proposed wall, hedge or fence will not obscure in whole or in part an existing view or vista to any landmark, natural area, or waterbody from any window or door of a building on an adjoining discordant use; and

(4)

Proposed walls or fences shall be:

(A)

Articulated to avoid the appearance of a "blank wall" when viewed from adjoining property, or

(B)

Landscaped with landscaping that is at least three (3) feet in height at time of planting, located along the length of the wall between the wall and the adjoining property, accompanied by specific provision for the maintenance of the landscaping, such as but not limited to, an agreement from the landowner regarding its maintenance in recordable form, or

(C)

Where facing a public right-of-way, set back at least two and one-half (2½) feet from the right-of-way line and extensively landscaped with shrubs of a minimum of three (3) feet in height when measured immediately after planting, which will form a continuous, unbroken, solid, visual screen within one (1) year after time of planting; hedges of a minimum of three (3) feet in height immediately after planting, which will form a continuous, unbroken, solid, visual screen within one (1) year after time of planting; and/or climbing vines of a minimum of thirty-six (36) inches in height immediately after planting; and

(5)

Proposed fences shall be constructed or installed so that all sides of the fence are "finished" in accordance with the applicable regulations; and

(6)

Proposed fences are constructed of durable materials and are decorative; and

(7)

Proposed fences in the front building line are not comprised of chain link or other wire mesh; and

(8)

Safe sight distance triangles are maintained pursuant to this Code.

(h)

An alternative placement of a required perimeter wall setback from the property line(s) of a parcel where said property line adjoins or lies across the street right-of-way from a residential district, shall be approved after public hearing upon demonstration of the following:

(1)

The setback of the wall is the minimum distance necessary so as not to encroach into an existing utility or landscape easement(s); and

(2)

That visual screening for the wall by way of landscaping is included in the easement area to prevent graffiti vandalism in a manner provided by this Code; and

(3)

That a suitable mechanism for maintenance of the landscaped area by the property owner, tenant association or similar association, or special taxing district, be provided in the form of a recordable covenant running with the land.

(i)

An alternative opening in a wall otherwise required by this Code to be a solid, unbroken barrier when a parcel adjoins or lies adjacent to a residential district, shall be approved after public hearing upon demonstration of the following:

(1)

The width of the wall opening is the minimum width necessary for pedestrians to access the parcel from adjoining or adjacent residential development(s); and

(2)

The wall opening is immediately adjoining or adjacent to a residential lot, parcel or tract which is restricted in use as common open space.

(j)

An alternative reduction in the number of required parking spaces shall be approved after public hearing upon demonstration of the following:

(1)

The alternative reduction of the number of required parking spaces does not apply to parking spaces for the disabled, parking spaces for persons transporting small children, nor to bicycle racks or other means of storage; and

(2)

The total number of required parking spaces is not reduced below five percent (5%) for medical or dental office uses, and ten percent (10%) for other semi-professional office uses; and

(A)

The lot, parcel or tract is located within six hundred and sixty (660) feet of an existing transportation corridor such as a Major Roadway identified on the Land Use Plan (LUP) map, within one-quarter (¼) mile from existing rail transit stations or existing express busway stops; or

(B)

The hours of operation of multiple uses within the development vary and do not overlap and a recordable agreement is provided which restricts the hours of operation.

(3)

The alternative development involves a mixed-use project in which the number of off-street parking spaces is calculated by applying the Urban Land Institute (ULI) Shared Parking Methodology to the required number of parking spaces.

(k)

Notwithstanding the foregoing, no proposed alternative development shall be approved upon demonstration that the proposed alternative development:

(1)

Will result in a significant diminution of the value of property in the immediate vicinity; or

(2)

Will have substantial negative impact on public safety due to unsafe automobile movements, heightened vehicular-pedestrian conflicts, or heightened risk of fire; or

(3)

Will result in a materially greater adverse impact on public services and facilities than the impact that would result from development of the same parcel pursuant to the underlying district regulations; or

(l)

Proposed alternative development under this subsection shall provide additional amenities or buffering to mitigate the impacts of the development as approved, where the amenities or buffering expressly required by this subsection are insufficient to mitigate the impacts of the development. The purpose of the amenities or buffering elements shall be to preserve and protect the economic viability of any enterprises proposed within the approved development and the quality of life of residents and business tenants of the immediate vicinity in a manner comparable to that ensured by the underlying district regulations. Examples of such amenities include but are not limited to: active or passive recreational facilities, landscaped open space over and above that normally required by the code, additional trees or landscaping, the inclusion of residential use(s), convenient pedestrian connection(s) to adjacent residential development(s), convenient covered bus stops or pick-up areas for transportation services, sidewalks (including improvements, linkages, or additional width), bicycle paths, buffer areas or berms, street furniture, undergrounding of utility lines, cohesive wall signage, and decorative street lighting. In determining which amenities or buffering elements are appropriate for a proposed commercial development, the following shall be considered:

(A)

The types of needs of the residents or business tenants of the immediate vicinity and the needs of the occupants of the parcel proposed for development that would likely be occasioned by the development, including, but not limited to, recreational, open space, transportation, aesthetic amenities, and buffering from adverse impacts; and

(B)

The proportionality between the impacts on the residents, business tenants or occupants of parcel(s) in the immediate vicinity and the amenities or buffering required. For example, a reduction in lot area for numerous lots may warrant the provision of additional landscape open space.

(8)

Alternative Site Development Option for Office Buildings, Laboratory Buildings and Associated Accessory Buildings and Structures. This subsection provides for the establishment of an alternative site development option, after public hearing, for office buildings, laboratory buildings and associated accessory buildings and structures, when such uses are permitted by the underlying district regulations, in the OPD zoning district, in accordance with the standards established herein. In considering any application for approval hereunder, the Community Zoning Appeals Board shall consider the same subject to approval of a site plan or such other plans as necessary to demonstrate compliance with the standards herein.

(a)

Purpose. The purpose of this subsection is to create objective standards to regulate the site-specific development of office buildings, laboratory buildings, associated accessory use buildings, and structures in the OPD zoning district. The standards provided in this subsection are alternatives to the generalized standards contained in regulations governing the OPD zoning district. The site development standards permit alternative patterns of site development in accordance with the Comprehensive Development Master Plan ("CDMP") where the public interest served by the underlying district regulations and CDMP will be served, and the objectives of the creative urban design, guidelines for urban form, or the preservation and enhancement of property values will be promoted, as demonstrated by the proposed alternative development's compliance with the standards of this subsection. A zoning application for development in compliance with the alternative standards shall be approved upon demonstration at public hearing that the proposed development is in compliance with the applicable alternative standards and does not contravene the enumerated public interest standards established herein.

(b)

For the purposes of this subsection, the following term shall have the following meanings:

"Discordant Use" means adjacent land uses which:

(1)

Are materially less intense or of a materially lesser density, or

(2)

Are materially different in their manner of hours of operation, or

(3)

Have a different zoning prefix, or

(4)

Contain an existing or approved use, which is otherwise allowable as of right in a different zoning district prefix.

(c)

Setbacks for a principal building, or accessory building or structure in the OPD, shall be approved after public hearing upon demonstration of the following:

(1)

The character and design of the proposed alternative development will not result in a material diminution of the privacy of adjoining property; and

(2)

The proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity, taking into account existing structures and open space; and

(3)

The proposed alternative development will not reduce the amount of open space on the parcel proposed for alternative development by more than twenty percent (20%) of the landscaped open space percentage required by the applicable district regulations; and

(4)

Any area of shadow cast by the proposed alternative development upon an adjoining property will be no larger than would be cast by a structure constructed pursuant to the underlying district regulations, or will have no more than a de minimus impact on the use and enjoyment of the adjoining parcel of land; and

(5)

The proposed alternative development will not involve the installation or operation of any mechanical equipment closer to the adjoining parcel of land than any other portion of the proposed alternative development, unless such equipment is located within an enclosed, soundproofing structure and if located on the roof of such an alternative development shall be screened from ground view and from view at the level in which the installations are located, and shall be designed as an integral part of and harmonious with the building design; and

(6)

The proposed alternative development will not involve any outdoor lighting fixture that casts light on an adjoining parcel of land at an intensity greater than permitted by this Code; and

(7)

The architectural design, scale, mass, and building materials of any proposed structure(s) or addition(s) are aesthetically harmonious with that of other existing or proposed structure(s) or building(s) on the parcel proposed for alternative development; and

(8)

The wall(s) of any building within a front, side street or double frontage setback area or within a setback area adjacent to a discordant use, required by the underlying district regulations, shall be improved with architectural details and treatments that avoid the appearance of a "blank wall"; and

(9)

The proposed alternative development will not result in the destruction or removal of mature trees within a setback required by the underlying district regulations, with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the same side of the lot, parcel or tract; and

(10)

Any windows or doors in any building(s) to be located within an interior side or rear setback required by the underlying district regulations shall be designed and located so that they are not aligned directly across from facing windows or doors on building(s) of a discordant use located on an adjoining parcel of land; and

(11)

Total floor area ratio shall not be increased by more than ten percent (10%) of the floor area ratio permitted by the underlying district regulations; and

(12)

The area within an interior side or rear setback required by the underlying district regulations located adjacent to a discordant use will not be used for off-street parking except:

(A)

In an enclosed garage where the garage door is located so that it is not aligned directly across from facing windows or doors on buildings of a discordant use located on an adjoining parcel of land; or

(B)

If the off-street parking is buffered from property that abuts the setback area by a solid wall at least six (6) feet in height along the area of pavement and parking, with either:

(i)

Articulation to avoid the appearance of a "blank wall" when viewed from the adjoining property, or

(ii)

Landscaping that is at least three (3) feet in height at time of planting, located along the length of the wall between the wall and the adjoining property, accompanied by specific provision for the maintenance of the landscaping, such as but not limited to, an agreement regarding its maintenance in recordable form from the adjoining landowner; and

(13)

Any structure within an interior side setback required by the underlying district regulations:

(A)

Is screened from adjoining property by landscape material of sufficient size and composition to obscure at least eighty percent (80%) (if located adjoining or adjacent to a discordant use) of the proposed alternative development to a height of the lower fourteen (14) feet of such structure(s) at time of planting; or

(B)

Is screened from adjoining property by an opaque fence or wall at least five (5) feet in height, if located adjoining or adjacent to a discordant use, that meets the standards set forth in paragraph (g) herein; and

(14)

Any structure in the OPD district not attached to a principal building and proposed to be located within a setback required by the underlying district regulations shall be separated from any other structure by at least 10 feet or the minimum distance to comply with fire safety standards, whichever is greater; and

(15)

When a principal building, or accessory building in the OPD district, is proposed to be located within a setback required by the underlying district regulations, any enclosed portion of the upper floor of such building shall not extend beyond the first floor of such building within the setback; and

(16)

Safe sight distance triangles shall be maintained as required by this Code; and

(17)

The parcel proposed for alternative development shall continue to provide the required number of on-site parking spaces as required by this Code; and

(18)

The parcel proposed for alternative development shall satisfy underlying district regulations or, if applicable, prior zoning actions issued prior to the effective date of this ordinance regulating setbacks, lot area and lot frontage, floor area ratio, landscaped open space and structure height; and

(19)

The proposed development will meet the following:

(A)

Interior side setbacks shall not be reduced by more than twenty-five percent (25%) of the side setbacks required by the underlying district regulations, or the minimum distance required to comply with fire safety standards, whichever is greater when the adjoining parcel of land is a RU-5, RU-5A, BU, IU, or OPD district or use provided, however, interior side setbacks shall not be reduced by more than fifteen percent (15%) of the interior side setbacks required by the underlying district regulations when the adjoining parcel of land allows a discordant use.

(B)

Side street setbacks shall not be reduced by more than twenty-five percent (25%) of the underlying district regulations;

(C)

Front setbacks (including double-frontage setbacks) shall not be reduced by more than ten percent (10%) of the setbacks required by the underlying district regulations; and

(D)

Rear setbacks shall not be reduced below twenty-five percent (25%) of the rear setback required by the underlying district regulations, or the minimum distance required to comply with fire safety standards, whichever is greater, when the adjoining parcel of land is a RU-5, RU-5A, BU, IU, or OPD district or use provided, however, rear setbacks shall not be reduced below fifteen percent (15%) of the rear setback required by the underlying district regulations when the adjoining parcel of land allows a discordant use.

(E)

Setbacks between building(s) shall not be reduced below 10 feet, or the minimum distance required to comply with fire safety standards, whichever is greater.

(d)

An alternative setback for paved parking area(s) shall be approved upon demonstration of the following:

(1)

Setback for paved parking area(s) shall not be reduced by more than twenty-five percent (25%) of the underlying district regulations; and

(2)

The proposed alternative development proposes an increase of twenty percent (20%) of the number of street trees required by the underlying district regulations; and

(3)

A prorata additional number of shrubs shall be provided commensurate with the trees in (2) above; said shrubs to be of a number, type and size as required by Chapter 18A.

(e)

An alternative floor area ratio for a building(s) shall be approved upon demonstration of the following:

(1)

Total lot coverage or floor area ratio shall not be increased by more than ten percent (10%) of the lot coverage or floor area permitted by the underlying district regulations; and

(2)

The proposed alternative development will not result in the destruction or removal of mature trees on the lot with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the lot; and

(3)

The increase in lot coverage or floor area ratio will not result in a principal buildings, or accessory building(s) in the RU-5A district, with an architectural design, scale, mass or building materials that are not aesthetically harmonious with that of other existing or proposed structures in the immediate vicinity; and

(4)

The proposed alternative development will not result in an obvious departure from the aesthetic character of in the immediate vicinity.

(f)

An alternative amount of landscaped open space shall be approved upon demonstration of the following:

(1)

Landscaped open space shall not be decreased by more than twenty percent (20%) of the landscape open space required by the applicable district regulations; and

(2)

The proposed alternative development will not result in the destruction or removal of mature trees on the lot with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the lot; and

(3)

The landscaped open space provided shall be used to shade and cool, direct wind movements, enhance architectural features, relate structure design to site, visually screen non-compatible uses and block noise generated by major roadways and intense use areas; and

(4)

The landscaped open space provided shall relate to any natural characteristics in such a way as to preserve and enhance their scenic and functional qualities; and

(5)

The proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity; and

(6)

The installation of the required percentage of landscaped open space on a parcel containing a previously approved and existing building, would necessitate a decrease in the number of parking spaces provided, or necessitate a decrease in the square footage of an existing building on the site; and

(7)

The total number of lot or street trees shall be increased by twenty percent (20%) greater than the number required by the underlying zoning district regulations, or by an additional twenty percent (20%) of the number of trees previously approved, whichever number is greater, and provided such trees are provided on the site or within the adjacent rights-of-way, respectively; said trees to be of a type and size as required by Chapter 18A; and

(8)

A prorata additional number of shrubs shall be provided commensurate with the trees in (7) above, said shrubs to be of a number, type and size as required by Chapter 18A.

(g)

An alternative lot area and frontage shall be approved upon demonstration of at least one of the following:

(1)

The proposed lot area and frontage shall permit the development or redevelopment of a structure(s) on a lot, parcel or tract of land where such structure(s) would not otherwise be permitted by the underlying district regulations due to the size or configuration of the parcel proposed for alternative development, provided that:

(A)

The lot, parcel or tract is under lawful separate ownership from any contiguous property; and

(B)

The proposed alternative development will not result in the further subdivision of land; and

(C)

The size and dimensions of the lot, parcel or tract are sufficient to provide all setbacks required by the underlying district regulations; and

(D)

The area of the lot, parcel or tract is not less than: seventy-five percent (75%) of the minimum lot area required by the underlying district regulations; and

(E)

The proposed alternative development does not result in an obvious departure from the aesthetic character of the immediate vicinity; and

(F)

The frontage dimension of the lot, parcel or tract is not less than: seventy-five percent (75%) of the minimum frontage required by the applicable district regulations; except that the frontage dimension of a flag-lot, parcel or tract shall be permitted to be reduced to the minimum width necessary to allow vehicular access as determined by the County; and

(G)

The resultant frontage dimension of the lot, parcel or tract provides vehicular ingress and egress to all resulting lots, parcels or tracts, including on-site access to emergency equipment; or

(2)

The proposed alternative development results in landscaped open space, community design, amenities or preservation of natural resources that enhances the function or aesthetic character of the immediate vicinity in a manner not otherwise achievable through application of the applicable district regulations, provided that:

(A)

The number of lots of the proposed alternative development does not exceed that normally permitted by the lot area dimensions of the underlying district regulations; and

(B)

The size and dimensions of each lot, parcel or tract in the proposed alternative development are sufficient to provide all setbacks required by the underlying district regulations, or, if applicable, any prior zoning actions for similar uses issued prior to the effective date of this ordinance (September 19, 2003); and

(C)

The area of each lot, parcel or tract is not less than eighty percent (80%) of the area required by the applicable district regulations; and

(D)

The proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity; and

(E)

The resultant frontage of the lot, parcel or tract provides vehicular ingress and egress to all resulting lots, parcels or tracts, including on-site access to emergency equipment; or

(3)

The proposed lot area and frontage is such that:

(A)

The proposed alternative development will not result in the creation of more than two (2) lots, parcels or tracts; and

(B)

The size and dimensions of each lot, parcel or tract are sufficient to provide all setbacks required by the applicable district regulations; and

(C)

No lot area shall be less than the smaller of:

(i)

Ninety percent (90%) of the lot area required by the applicable district regulations; or

(ii)

The average area of the developed lots, parcels or tracts in the immediate vicinity within the same zoning district; and

(D)

The proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity; and

(E)

The resultant frontage provides vehicular ingress and egress to all resulting lots, parcels or tracts, including on-site access to emergency equipment.

(h)

An alternative reduction in the number of required parking spaces shall be approved after public hearing upon demonstration of the following:

(1)

The alternative reduction of the number of required parking spaces does not apply to parking spaces for the disabled, parking spaces for persons transporting small children, nor to bicycle racks or other means of storage; and

(2)

The total number of required parking spaces is not reduced below five percent (5%) for medical or dental office uses, and ten percent (10%) for other office, laboratory or associated accessory uses; and

(A)

The lot, parcel or tract is located within six hundred and sixty (660) feet of an existing transportation corridor such as a Major Roadway identified on the Land Use Plan (LUP) map, within one-quarter ( 1 / 4 ) mile from existing rail transit stations or existing express busway stops; or

(B)

The hours of operation of multiple uses within the development vary and do not overlap and a recordable agreement is provided which restricts the hours of operation.

(3)

The alternative development involves a mixed-use project in which the number of off-street parking spaces is calculated by applying the Urban Land Institute (ULI) Shared Parking Methodology to the required number of parking spaces.

(i)

Notwithstanding the foregoing, no proposed alternative development shall be approved upon demonstration that the proposed alternative development:

(1)

Will result in a significant diminution of the value of property in the immediate vicinity; or

(2)

Will have substantial negative impact on public safety due to unsafe automobile movements, heightened vehicular-pedestrian conflicts, or heightened risk of fire; or

(3)

Will result in a materially greater adverse impact on public services and facilities than the impact that would result from development of the same parcel pursuant to the underlying district regulations; or

(j)

Proposed alternative development under this subsection shall provide additional amenities or buffering to mitigate the impacts of the development as approved, where the amenities or buffering expressly required by this subsection are insufficient to mitigate the impacts of the development. The purpose of the amenities or buffering elements shall be to preserve and protect the economic viability of any enterprises proposed within the approved development and the quality of life of residents and business tenants of the immediate vicinity in a manner comparable to that ensured by the underlying district regulations. Examples of such amenities include but are not limited to: active or passive recreational facilities, landscaped open space over and above that normally required by the code, additional trees or landscaping, convenient pedestrian connection(s) to adjacent residential development(s), convenient covered bus stops or pick-up areas for transportation services, sidewalks (including improvements, linkages, or additional width), bicycle paths, buffer areas or berms, street furniture, undergrounding of utility lines, cohesive wall signage, and decorative street lighting. In determining which amenities or buffering elements are appropriate for a proposed office park development, the following shall be considered:

(A)

The types of needs of the residents or business tenants of the immediate vicinity and the needs of the occupants of the parcel proposed for development that would likely be occasioned by the development, including, but not limited to, recreational, open space, transportation, aesthetic amenities, and buffering from adverse impacts; and

(B)

The proportionality between the impacts on the residents, business tenants or occupants of parcel(s) in the immediate vicinity and the amenities or buffering required. For example, a reduction in lot area for numerous lots may warrant the provision of additional landscape open space.

(Ord. No. 19-51, § 35, 6-4-19)

All decisions of the Community Zoning Appeals Boards shall be by resolution. The decision, if for denial, shall specify whether it is with or without prejudice. A final finding by the Ethics Commission as provided in Section 2-11.1(z) of a willful violation of Sections 2-11.1 or 20-45 of the Code by any member of a Community Zoning Appeals Board regarding a particular matter shall constitute malfeasance in office and shall render the action regarding that particular matter voidable by the Board of County Commissioners. Notwithstanding any provision to the contrary, a decision of the Board of County Commissioners to void a decision as provided in this section shall be by simple majority vote of the members present. Decisions of the Community Zoning Appeals Boards are final and may be appealed to circuit court pursuant to Section 33-316 provided however within fourteen (14) days, but not thereafter, decisions of the Community Zoning Appeals Boards as specified in Section 33-314, shall be appealed to the Board of County Commissioners, as provided by Section 33-313. The fourteen-day appeal period provided herein shall commence to run the day after notification that the appropriate Community Zoning Appeals Board has taken action on the particular matter, such notification to be given by the Department by posting a short, concise statement of the action taken on a conspicuous bulletin board that may be seen by the public at reasonable times and hours in the office of the Department. Where the fourteenth (14th) day falls on a weekend or legal holiday the fourteen-day period shall be deemed to extend through the next business day. No appeal may be withdrawn after a period of ten (10) days from the date of the decision of a Community Zoning Appeals Board; except at the appeal hearing before the Board of County Commissioners and with the permission of such Board. In no event shall an appellant be entitled to a refund of the appeal fee. It is hereby intended that the Community Zoning Appeals Board's decision concerning a requested regulation amendment shall be considered only as a recommendation, which shall be transmitted, together with the Community Zoning Appeals Board's record on each such application, to the Board of County Commissioners for final action by way of approval, disapproval or modification pursuant to Section 33-314 hereof.

(Ord. No. 60-14, 4-19-60; Ord. No. 61-30, § 1, 6-27-61; Ord. No. 62-48, § 1C, 12-4-62; Ord. No. 71-22, § 1, 1-19-71; Ord. No. 74-20, § 5, 4-3-74; Ord. No. 96-127, § 35, 9-4-96; Ord. No. 98-125, § 21, 9-3-98; Ord. No. 04-92, § 1, 5-11-04)

(A)

Any appealable decision of the Community Zoning Appeals Board may be appealed by an applicant, governing body of any municipality, if affected, or any aggrieved party, including neighborhood, community and civic associations, whose name appears in the record of the appropriate Community Zoning Appeals Board by filing with the Department a petition in a form prescribed by the Director and a written statement specifying in brief, concise language the grounds and reasons for reversal of the ruling made by the Community Zoning Appeals Board, together with a fee for the processing of the appeal, as provided by Administrative Order No. 4-40, as amended from time to time, within the fourteen (14) days provided by Section 33-312 hereof.

(B)

Upon the timely filing of an application for appeal, the Director shall transmit to the County Commission the petition for appeal, any associated documents which may be submitted on appeal, the application and Director's recommendation as presented to the Community Zoning Appeals Board, and the decision and record of the Community Zoning Appeals Board. If the ground for reversal is a failure to provide notice as required by Section 33-310, the name of the appellant need not appear in the record.

(C)

If the decision of the Community Zoning Appeals Board has not been appealed within the fourteen-day period, the Director may appeal such decision within four (4) additional days in the manner aforestated, except that a fee will not be required.

(D)

Upon the taking of an appeal, the County Commission shall conduct a de novo hearing and shall consider why the decision of the Community Zoning Appeals Board should or should not be sustained or modified.

(1)

By resolution, the Board shall either affirm, modify or reverse the CZAB's decision.

(2)

Such action of the County Commission shall be by a majority vote of all members present, except that a two-thirds vote of all members present shall be required to reverse any CZAB decision denying a request for zoning action.

(E)

No appeal shall be heard or considered until notice has been provided in accordance with the provisions of Section 33-310(c), (d), (e) and (f).

(F)

With respect to appeals arising from the Downtown Kendall Urban Center District a two-thirds (⅔) vote of all members present shall be required to reverse any Community Zoning Appeals Board decision denying a request for zoning action for a development proposed within the Center or Edge Sub-Districts of the Downtown Kendall Urban Center District. For any application for a development proposed within the Core Sub-District of the Downtown Kendall Urban Center District pursuant to Section 33-311 shall be decided by a majority vote of all members then in office.

(Ord. No. 60-14, 4-19-60; Ord. No. 61-30, § 1, 6-27-61; Ord. No. 62-48, § 1D, 12-4-62; Ord. No. 64-3, § 2, 2-4-64; Ord. No. 64-65, § 5, 12-15-64; Ord. No. 65-11, § 1, 2-16-65; Ord. No. 66-66, § 4, 12-20-66; Ord. No. 74-20, § 6, 4-3-74; Ord. No. 74-40, § 4, 6-4-74; Ord. No. 77-54, § 1, 7-19-77; Ord. No. 78-18, § 1, 3-21-78; Ord. No. 78-52, § 2, 7-18-78; Ord. No. 80-88, § 1, 9-2-80; Ord. No. 87-29, § 1, 5-19-87; Ord. No. 89-129, § 1, 12-19-89; Ord. No. 95-215, § 1, 12-5-95; Ord. No. 96-127, § 35, 9-4-96; Ord. No. 97-16, § 3, 2-25-97; Ord. No. 99-166, § 4, 12-16-99; Ord. No. 00-31, § 2, 2-24-00; Ord. No. 00-100, § 1, 7-25-00; Ord. No. 05-32, § 1, 2-1-05; Ord. No. 13-16, § 9, 2-5-13; Ord. No. 31-6, § 3, 1-21-21)

For zoning applications heard by the County Commission, no zoning application (i) to delete or amend a declaration of restrictive covenants or development agreement that was submitted in connection with a prior zoning application that would result in an increase in the density or intensity of a use or (ii) to delete or modify, in a manner inconsistent with Section 33-310.1(A)(I)(B)(7), a common open space or common use amenity within a residential site plan that was previously approved upon public hearing, shall be approved except upon a two-thirds (⅔) vote of the members present at the hearing at which the application is decided. It is provided, however, that this section shall not apply to an application to delete or amend a declaration of restrictive covenants or a condition in a resolution, or parts thereof, for a property within an urban center district or urban area district.

(Ord. No. 09-73, § 1, 9-1-09; Ord. No. 12-49, § 3, 7-3-12; Ord. No. 17-43, § 6, 7-6-17)

(A)

The County Commission shall have jurisdiction to directly hear the following applications:

(1)

Applications for development approval of Developments of Regional Impact ("DRI") or modification thereof, including applications for modifications to restrictive covenants related thereto, after hearing and recommendation by the Community Zoning Appeals Board or Boards having jurisdiction over the area encompassed by the entire Development of Regional Impact.

(a)

Where an application for development approval of a DRI or modification thereof also contains a request for any other action under this chapter requiring a public hearing or where there is pending on any property an application of or development approval for a DRI and an application for any other action under this chapter requiring a public hearing (related requests), all such applications shall be heard in their entirety by the Board of County Commissioners after hearing and recommendation of the Community Zoning Appeals Board or Boards having jurisdiction over the area encompassed by the application or applications.

(b)

Where an application requests an extension to a DRI development order that is otherwise exempt from CZAB review pursuant to Section 33-311, and where such application does not contain a request for any other action under this chapter requiring a public hearing apart from those necessary to accomplish the requested extension, then such application shall be heard directly by the Board of County Commissioners after recommendation of the Developmental Impact Committee.

(c)

Where practicable, all such items shall be acted upon at the same public hearing.

(d)

Hearings pursuant to this subsection shall be noticed in the same manner as applications filed before the Community Zoning Appeals Boards.

(e)

Where a CZAB's recommendation is for denial, a two-thirds vote of all members present shall be required to approve any Development of Regional Impact or modifications thereof or related request.

(2)

Any application encompassing property located in more than one Community Zoning Appeals Board as set forth in Section 33-309.

(3)

When as a result of municipal incorporation or annexation, a Community Zoning Appeals Board (CZAB) does not have enough members in office to hear and decide zoning applications, the Board of County Commissioners shall hear and decide all zoning applications in the remaining jurisdiction of the CZAB. Zoning actions advertised for hearing before the Board of County Commissioners shall be heard and decided by the board, and neither the subsequent appointment or election of additional CZAB members, nor the reconfiguration of the affected CZAB, shall divest the board of jurisdiction to hear such advertised applications. If prior to the mailing of the final notice of hearing pursuant to Section 33-310, new members of the affected CZAB have been appointed or elected, or the affected CZAB has been reconfigured, such that the CZAB has enough members to act, applications within the CZAB's jurisdiction shall be heard and decided by that CZAB upon notice pursuant to Section 33-310.

(4)

Any application encompassing property located within a municipality when jurisdiction is vested in Miami-Dade County pursuant to applicable zoning or subdivision regulations or municipal charter or interlocal agreement.

(5)

Applications which would normally be heard by a Community Zoning Appeals Board, but which have been postponed due to lack of quorum of the applicable Community Zoning Appeals Board on at least two consecutive occasions. Such jurisdiction by the County Commission shall be at the option of the applicant, and under these circumstances the cost of providing notice of an application before the County Commission shall be borne by the County.

(6)

Applications that would normally be heard by a Community Zoning Appeals Board, when that particular Community Zoning Appeals Board has no elected or appointed members in office at the time the Director determines that the application is ready to be noticed for public hearing, pursuant to Section 20-42(E).

(7)

Applications that were heard by a Community Zoning Appeals Board, when a member of that Community Zoning Appeals Board voted on, or participated in, any matter about which the member has a conflict of interest, in accordance with Section 20-45. Such jurisdiction by the County Commission shall be at the option of the applicant, and under these circumstances the cost of providing all required notices for the hearing before the County Commission shall be borne by the County.

(8)

Any application for district boundary change to, or modification of: an Employment Center Planned Area Development District (ECPAD), subject to the requirements of Article XXXIIID.1; a Retail Entertainment District Planned Area Development District (REDPAD), subject to the requirements of Article XXXIIID.2; or Urban Development Boundary Planned Area Development (UDBPAD), subject to the requirements of Article XXXIIID.3.

(9)

Any application for a zoning action that is accompanied by a development agreement, as provided in Section 33-310.3.

(10)

Any application for a development agreement, or modification thereto or revocation thereof, as provided in Section 33-310.3.

(11)

Any application relating to a Corridor District (CD), subject to the requirements of Section 33-470.

(12)

Applications requesting variances from regulations pertaining to kiosk signs, as set forth in Section 33-96, 33-107, or 33-284.87.

(13)

Any application related to a Mixed-Use Corridor District (MCD), which includes at least 250 residential units or consists of at least 5 acres, subject to the requirements of Article XLV.

(14)

Any application related to a Residential Modified District (RMD), which includes at least 250 residential units, subject to the requirements of Article XLVI.

(15)

Any application consisting of at least 100 acres.

(B)

The County Commission shall have jurisdiction to hear appeals from decisions of the Community Zoning Appeals Boards as follows:

(1)

Applications for district boundary changes on individual pieces of property or on a neighborhood or area-wide basis.

(2)

Applications for district boundary changes which also contain requests for unusual use, new use, variance or special exception which is incidental or related thereto, or where there is pending on the same property or portion thereof more than one (1) application for district boundary change, variance, special exception, unusual or new use. When possible an appeal containing such requests shall be acted upon at the same public hearing.

(3)

All zoning applications by State and municipal entities and agencies.

(4)

Applications for unusual uses or amendments or modifications thereto described in Section 33-13(e) when said unusual uses, amendments or modifications in connection with a class I or class IV permit application, as defined in Section 24-58.1.

(5)

Any appeal filed by the Director from any action of the Community Zoning Appeals Boards.

(6)

Notwithstanding any provision contained in any section of this Code, the Board of County Commissioners shall have appellate jurisdiction whenever it is contended that a decision of a Community Zoning Appeals Board constitutes a taking or deprivation of vested rights and administrative remedies of Section 2-114 have been exhausted.

(7)

Applications for appeals of administrative decisions pursuant to Section 33-311(A)(2).

(8)

Applications for development approval or modifications thereof for projects located within the Downtown Kendall Urban Center District.

(9)

Applications for development approval or modifications thereof for projects located within the Center or Edge sub-districts of the Naranja Community Urban Center District and all other Urban Center zoning districts.

(10)

Administrative determinations concerning mobile home parks pursuant to Section 33-311(2)(a) of this Code.

(11)

Applications to approve, expand, or modify: (i) day care facilities or day nursery facilities; and (ii) private elementary, middle, or senior high schools (grades K to 12), other than where the County Commission has direct jurisdiction over such applications.

(C)

The County Commission shall have jurisdiction to directly hear other applications as follows:

(1)

Upon application for, hear and decide appeals where it is alleged there is an error in any order, requirement, decision or determination made by the Development Impact Committee Executive Council or its Chairman in the discharge of its duties as defined in Sections 2-114.1, 2-114.2, 2-114.3, 2-114.4 and Chapters 28, 33-303.1(D)(3), 33E, [Section] 33G-6, 33H, 33I and 33J and 33K of the Code. The Board of County Commissioners shall also hear and decide appeals or other matters as provided by Sections 2-114.2, 2-114.3, and 2-114.4 of the Code.

(2)

Applications for developmental resolutions for which the applicant or the executive council of the DIC has invoked the administrative remedy set forth in Section 2-114.1, Code of Miami-Dade County, Florida and to which the procedure of Section 33-311(E)(1) applies.

(3)

Applications to modify or eliminate any provision of restrictive covenants, or part thereof, accepted at public hearing, where the covenant provides that only the Board of County Commissioners may modify or eliminate the provisions of such covenant.

(4)

Applications for non-use variance from the requirements of Section 33-35(c) of this Code as to any structure subject to the provision of Article XXXIII(I) that is existing at the effective date of this ordinance or approved as described in Section 33-284.64.

(5)

Applications for variances from the provisions of this chapter to permit development described in ground leases with the County in existence as of the effective date of this ordinance. Any variance granted pursuant to this provision shall satisfy the general intent of this chapter.

(6)

Applications for appeals of administrative decisions.

(a)

Upon application, hear and decide appeals where it is alleged there is an error in any order, requirement, decision, or determination made by an administrative official in the interpretation of any portion of the regulations of this chapter or Chapter 33C, or of any final decision adopted by resolution pursuant those chapters, except appeals of administrative site plan review, or appeals of administrative variances pursuant to the provisions of Section 33-36.1, where this chapter provides for such appeals first being under the jurisdiction of the Community Zoning Appeals Board (CZAB).

(b)

It is provided, however, that where zoning requests that would ordinarily be heard before the CZAB are joined with a request for an appeal of an administrative decision, the zoning requests shall remain pending before the CZAB until the appeal of the administrative decision has been determined by the County Commission.

(7)

Applications to amend any Urban Center or Urban Area District regulating plans, as provided in Section 33-284.89.3 of this chapter, or for any zoning action for any property located within the Downtown Kendall Urban Center District or Palmer Lake Metropolitan Urban Center District or to modify or delete declarations of restrictive covenants or conditions of zoning actions addressing property wholly located within the Downtown Kendall Urban Center District, as defined in Section 33-284.55 of this Code.

(8)

Any application seeking a variance from adult entertainment establishment spacing requirements imposed by State Statute, as specified in Section 33-259.1.

(9)

Upon application for, hear and decide appeals of decisions of the Rapid Transit Developmental Impact Committee pursuant to Chapter 33C.

(10)

Hear application for and, upon recommendation of the Developmental Impact Committee, grant or deny those special exceptions for public charter school facilities permitted by the regulations only upon approval after public hearing, provided the applied for special exception, in the opinion of the Board of County Commissioners, is found to be in compliance with the standards contained in Article XI and Section 33-311(A)(3) of this Code.

(11)

Notwithstanding the provisions of Section 33-13(e) of this Code, applications for unusual uses for lake excavations to expand bona fide rockmining operations, as defined in Section 33-422(3) of the code, onto property contiguous and immediately adjacent to existing bona fide rockmining operations; associated Class I and Class IV permit applications as defined in Section 24-48.1; and all applications for uses ancillary to bona fide rockmining pursuant to Section 33-422(c) of this article.

(12)

Applications to approve, expand, or modify:

(a)

Public charter school facilities; or

(b)

Notwithstanding any provision of this Code to the contrary, private elementary, middle, and/or senior high schools (grades K to 12) where the proposed school will serve 500 or more students and have more than 100,000 square feet of building facilities.

(13)

Applications to modify or delete declarations of restrictive covenants encumbering property wholly located within any Urban Center or Urban Area zoning district, as defined in this Code, where and to the extent that modification or elimination of the declaration of restrictive covenant or part thereof is necessary to allow development conforming in all respects to the applicable Urban Center or Urban Area District regulations.

(14)

Applications for zoning action on the property that is subject to a deed restriction or a restrictive covenant placed on the property in connection with its conveyance by the County, or in connection with a subsequent modification or release by the County of such restriction or covenant.

(15)

Except where permitted in the IU-3 District, applications for unusual use pertaining to electric power plants and ancillary uses.

(16)

Hear application for and grant or deny Director's applications for single-family and duplex lots owned by Miami-Dade County which have been designated for development under "The Infill Housing Initiative" pursuant to Article VII, Chapter 17 of this Code or other single-family and duplex lots for homeownership developed by Public Housing and Community Development (PHCD), or successor departments for workforce and affordable housing.

(17)

Applications for zoning action located within:

(a)

Areas conveyed to the County as part of the reuse of either former military bases or other federal properties.

(b)

Areas designated as Zoo Miami Entertainment Area in the Comprehensive Development Master Plan.

(18)

Applications for zoning action for:

(a)

Office buildings or office complexes involving in excess of 125,000 square feet.

(b)

Processing, manufacturing, or motion picture studios involving 50 or more acres.

(19)

Applications for special exception for a general site development plan within the Government Center Subzone of the Rapid Transit Zone, pursuant to Section 33C-11.

(20)

Applications for development in the RTZ District, or for review of decisions regarding development in the RTZ District, as provided in Chapter 33C.

(21)

Applications for approval of self-service mini-warehouse storage facilities where public hearing is required.

(D)

The following provisions shall govern the Board's consideration and action upon direct applications and appeals:

(1)

The Board, after hearing why the application should or should not be granted, shall consider the matter in accordance with the criteria specified in this chapter, and shall by resolution either grant or deny the application.

(2)

In granting any variances, special exceptions, new uses, or unusual uses, the Board may prescribe any reasonable conditions, restrictions, and limitations it deems necessary or desirable in order to maintain the plan of the area and compatibility therewith.

(3)

Such action of the Board shall be final, provided no such action shall be taken until notice of time and place of the meeting at which the Board will consider and take final action on the application has been first published as provided in Section 33-310 hereof.

(4)

Anything in this article to the contrary notwithstanding, when an application for a district boundary change or special exception, new use, unusual use, or variance is filed by the Director, it will only be decided by the Board after receiving the recommendation of the Director and after the required noticed public hearing, and such decision shall then be final.

(5)

The following provisions shall govern the Board's reconsideration of action upon zoning applications:

(a)

Notwithstanding anything in this article or the Code to the contrary, the Board may reconsider its action upon a zoning application only:

(i)

In accordance with Section 33-319(k) of this Code when an administrative moratorium is in effect; or

(ii)

At the same meeting at which the action was taken as provided in this section or solely for the purpose of avoiding a manifest injustice.

(b)

Except as otherwise specified in this section, if a motion to reconsider is adopted, no further affirmative action shall be taken until notice of such reconsideration and time and place of final action is provided in accordance with Section 33-310 hereof.

(c)

It is provided that affirmative action may be taken after reconsideration either:

(i)

where the motion to reconsider was adopted, and such affirmative action is taken, before the next item on the zoning agenda is called for consideration and before a recess or adjournment is called; or

(ii)

at any time during the same meeting, provided an announcement is made, at or before the time that the Board first takes action upon an application, advising the applicant and interested parties that such action may be reconsidered and additional action may be taken on the application at that same meeting, notwithstanding the initial action taken.

(E)

If an application is before the Board of County Commissioners pursuant to this article, be it by way of appeal, recommendation or otherwise, it shall have authority to consider and take final action upon any and all matters and requests contained in the application, any other provisions in this article notwithstanding.

(1)

In making any final decisions, the Commission shall be guided by the standards and guides applicable to the Community Zoning Appeals Boards or as otherwise specified in this chapter.

(2)

It shall consider all relevant and material evidence offered to show the impact of the development upon Miami-Dade County.

(3)

The procedural requirements of Sections 33-311(F) and 33-311(G) shall apply to hearings held pursuant to this section.

(F)

Reserved.

(G)

The following additional procedures shall apply to zoning hearings before the County Commission:

(1)

Deferrals. The County Commission may defer action on any matter before it in order to inspect the site in question, to remand to the Community Zoning Appeals Boards, or for any other justifiable and reasonable reason. Whenever a deferral is approved at the request of the applicant, the applicant shall be required to pay a deferral fee in the amount of round-trip public transit fare for each person present at the hearing in opposition to the application, or two hundred fifty dollars ($250.00), whichever is greater. The Clerk of the Board shall prepare and have available at the hearing appropriate voucher forms, in duplicate, to be filed under oath by persons present to oppose the application in question. Each objector presenting a completed voucher to the Clerk shall be given two (2) transit tokens. At the end of the meetings at which the deferral was requested, the Clerk shall, for each deferral, total the number of vouchers issued, determine the value of transit fares represented by the tokens, and submit the deferral fee to the applicant, or his attorney. The applicant requesting the deferral shall pay the deferral fee to the Department, which shall then pay an amount equal to the value of the transit fares to the transit agency. Except for that portion of the deferral fee paid to the transit agency, all monies collected by the Department as deferral fees shall be deposited into a separate account and shall be expended only for purposes of administering and enforcing the provisions hereof. In the event that the applicant does not pay the deferral fee prior to the date of the scheduled deferred hearing, the application shall be deemed to have been voluntarily withdrawn without prejudice, the applicant shall be deemed to be in violation of this provision, and enforcement may be effectuated through all available means including, but not limited to, Chapter 8CC of the Code of Miami-Dade County, Florida. Notwithstanding the foregoing, the County Commission shall, at the time of approving a deferral, have the discretion to waive the provisions of this section upon a showing of good cause for the deferral.

(2)

Record. When any final action has been taken by the Board of County Commissioners, its record, together with a certified copy of its minutes and resolutions pertaining to such action shall be transmitted to the Department for filing, and the same shall be open to the public for inspection at reasonable times and hours.

(3)

Voting Requirements. Save and except as otherwise provided by ordinance, all actions taken by the Board of County Commissioners under this article shall be by a majority vote of all members present. When there is an insufficient number of votes to either affirm or reverse a Community Zoning Appeals Boards' resolution or on a direct application there is an insufficient number of votes to either approve or deny an application, the result shall be deemed a tie vote. Whenever a tie vote occurs, and no other available motion on the application is made and approved before the next application is called for consideration or before a recess or adjournment is called, whichever occurs first, the matter shall be carried over to the next regularly scheduled meeting.

(H)

The procedures set forth in Section 33-311(D) and (E) shall be applicable to hearings held pursuant to this section.

(I)

The chair, or vice-chair or acting chair, may administer oaths and compel the attendance of witnesses in the same manner prescribed in the circuit court.

(Ord. No. 60-14, 4-19-60; Ord. No. 61-30, § 1, 6-27-61; Ord. No. 62-48, § 1E, 12-4-62; Ord. No. 73-46, § 1, 5-1-73; Ord. No. 74-20, § 7, 4-3-74; Ord. No. 74-40, § 5, 6-4-74; Ord. No. 74-69, § 1, 9-3-74; Ord. No. 75-47, § 6, 6-18-75; Ord. No. 75-100, § 2, 11-4-75; Ord. No. 77-55, § 1, 7-19-77; Ord. No. 83-70, § 16, 9-6-83; Ord. No. 84-70, § 1, 9-4-84; Ord. No. 87-6, § 1, 2-17-87; Ord. No. 88-112, § 2, 12-6-88; Ord. No. 89-10, § 6, 2-21-89; Ord. No. 90-26, § 3, 3-20-90; Ord. No. 90-31, § 3, 4-3-90; Ord. No. 90-36, § 1, 4-17-90; Ord. No. 90-59, § 3, 6-19-90; Ord. No. 90-76, § 4, 7-24-90; Ord. No. 92-84, § 2, 7-21-92; Ord. No. 95-79, § 3, 5-2-95; Ord. No. 95-215, § 1, 12-5-95; Ord. No. 96-62, § 1, 5-7-96; Ord. No. 96-123, § 1, 7-18-96; Ord. No. 96-127, § 35, 9-4-96; Ord. No. 97-9, § 2, 2-4-97; Ord. No. 97-16, § 3, 2-25-97; Ord. No. 97-131, § 1, 7-22-97; Ord. No. 97-198, § 2, 11-4-97; Ord. No. 98-2, § 2, 1-13-98; Ord. No. 98-125, § 21, 9-3-98; Ord. No. 98-175, § 3, 12-3-98; Ord. No. 99-3, § 1, 1-21-99; Ord. No. 99-118, § 2, 9-21-99; Ord. No. 99-166, § 5, 12-16-99; Ord. No. 00-31, § 2, 2-24-00; Ord. No. 00-51, § 2, 4-11-00; Ord. No. 01-121, § 2, 7-24-01; Ord. No. 01-161, § 1, 10-23-01; Ord. No. 01-227, § 6, 12-20-01; Ord. No. 02-23, § 7, 2-12-02; Ord. No. 02-56, § 2, 4-23-02; Ord. No. 02-77, § 2, 5-7-02; Ord. No. 03-93, § 5, 4-22-03; Ord. No. 03-113, § 1, 5-6-03; Ord. No. 03-120, § 2, 5-6-03; Ord. No. 03-272, § 1, 12-16-03; Ord. No. 04-108, § 4, 6-8-04; Ord. No. 04-163, § 3, 9-9-04; Ord. No. 04-203, § 16, 11-30-04; Ord. No. 04-217, § 13, 12-2-04; Ord. No. 05-143, § 12, 7-7-05; Ord. No. 06-09, § 1, 1-24-06; Ord. No. 06-23, § 2, 2-21-06; Ord. No. 06-66, § 1, 5-9-06; Ord. No. 06-190, § 1, 12-19-06; Ord. No. 07-37, § 1, 2-20-07; Ord. No. 09-81, § 6, 9-1-09; Ord. No. 10-09, § 1, 2-2-10; Ord. No. 10-58, § 11, 9-21-10; Ord. No. 11-62, § 3, 8-2-11; Ord. No. 13-16, § 10, 2-5-13; Ord. No. 14-15, § 1, 2-4-14; Ord. No. 14-37, § 8, 4-8-14; Ord. No. 13-106, § 1, 11-5-13; Ord. No. 13-119, § 2, 12-3-13; Ord. No. 15-129, § 1, 11-3-15; Ord. No. 16-91, § 31, 9-7-16; Ord. No. 17-43, § 7, 7-6-17; Ord. No. 17-91, § 2, 11-21-17; Ord. No. 18-3, § 2, 1-23-18; Ord. No. 18-66, § 6, 6-5-18; Ord. No. 18-81, § 5, 7-24-18; Ord. No. 18-136, § 2, 11-8-18; Ord. No. 19-49, § 3, 6-4-19; Ord. No. 19-51, § 38, 6-4-19; Ord. No. 19-112, § 4, 11-19-19; Ord. No. 19-127, § 3, 12-17-19; Ord. No. 20-20, § 11, 2-19-20; Ord. No. 20-18, § 2, 2-19-20; Ord. No. 20-50, § 3, 6-2-20; Ord. No. 21-6, § 3, 1-21-21; Ord. No. 21-33, § 2, 4-20-21; Ord. No. 22-106, § 3, 9-1-22; Ord. No. 22-153, § 4, 11-15-22; Ord. No. 24-6, § 1, 2-6-24; Ord. No. 24-111, § 1, 10-1-24)

Editor's note— Section 1 of Ordinance No. 97-9, adopted February 4, 1997, which amended previous provision § 33-314(c), shall apply to zoning applications filed with the Department of Planning, Development and Regulation prior to February 4, 1997. Section 2 of this ordinance shall apply to zoning applications filed with the Department of Planning, Development and Regulation on or after February 4, 1997.

Editor's note— Ord. No. 21-6, § 3, adopted Jan. 21, 2021, repealed § 33-315, which pertained to regulation amendment request and derived from Ord. No. 96-127, § 36, adopted Sept. 4, 1996.

Editor's note— Ord. No. 03-93, § 6, adopted April 22, 2003, repealed section 33-315.1 in its entirety. Former section 33-315.1 pertained to reformation of resolutions to correct technical errors, and derived from Ord. No. 94-153, § 1, adopted July 28, 1994; Ord. No. 96-127, § 37, adopted Sept. 4, 1996.

An application for public hearing may be filed to amend or delete, in whole or in part, that portion of a resolution which accepts or requires a restrictive covenant by condition or otherwise, hereinafter the covenant proviso, where the covenant has not been recorded in the Public Records of Miami-Dade County. An application to amend or delete a covenant proviso may seek effectively the same relief that could have been sought by modification or release of the restrictive covenant had such covenant been timely recorded. Notice shall be provided pursuant to Section 33-310 herein, except that the required mailed notices shall comply with the one-half (½) mile radius provision. Original jurisdiction over applications under this section shall be with the board that issued the resolution containing the covenant proviso. The appellate process shall be the same as for the appeal of an application seeking the approvals contained in the prior resolution. No application under this section shall be filed and accepted unless (a) the applicant states under oath that the covenant in question has not been recorded as evidenced by a title search or attorney's opinion of title current to within thirty (30) days of filing this application, and (b) states under oath why it is not reasonably practicable for said covenant to be timely recorded as contemplated by the prior resolution, and (c) the applicant has complied with all known requirements which would have pertained to the modification or release of the covenant had that covenant been recorded pursuant to the covenant proviso of the resolution. In considering an application pursuant to this section, the applicable board shall consider the following, in addition to all criteria pertaining to the approvals to which the covenant proviso of the prior resolution pertains:

1.

The extent to which the County, the applicant and the applicant's predecessor(s) in title are responsible for the failure of the covenant to be timely recorded, including whether the failure to record the covenant is a result of clerical or other error;

2.

Whether there was an intent to deceive or mislead the County in connection with the prior resolution containing the covenant proviso; and

3.

Any detriment which the granting of the application may cause to the County, or the public, including the area affected. The consideration of detriment shall include, but not be limited to (a) whether granting relief will impair the County's ability to obtain compliance with the covenant proviso by the applicant or other property owners to the extent that the covenant proviso may remain in effect after a revision; and (b) whether the applicant will proffer a new, recordable covenant addressing the concerns that were to have been addressed by the prior covenant.

(Ord. No. 00-83, § 1, 6-20-00)

No person aggrieved by any zoning resolution order, requirement, decision or determination of an administrative official or by any decision of the Community Zoning Appeals Board may apply to the Court for relief unless such person has first exhausted the remedies provided for herein and taken all available steps provided in this article. It is the intention of the Board of County Commissioners that all steps as provided by this article shall be taken before any application is made to the Court for relief; and no application shall be made to the Court for relief except from a resolution adopted by the Board of County Commissioners, or where applicable from a resolution adopted by a Community Zoning Appeals Board pursuant to this article. Zoning resolutions of the Board of County Commissioners, or where applicable, zoning resolutions of Community Zoning Appeals Boards shall be reviewed in accordance with the procedure and within the time provided by the Florida Rules of Appellate Procedure for the review of the quasi-judicial rulings of any commission or board; and such time shall commence to run from the date the zoning resolution sought to be reviewed is transmitted to the Clerk of the Commission. The Director, or his duly authorized representative, shall affix to each zoning resolution the date said zoning resolution is transmitted to the Clerk of the Commission. The Clerk of the Board shall comply with all requirements of the Florida Rules of Appellate Procedure. For the purposes of appeal the Director shall make available, for public inspection and copying, the record upon which each final decision of the Board of County Commissioners or Community Zoning Appeals Board is based; provided, the Director may make a reasonable charge commensurate with the cost in the event the Department is able to and does furnish copies of all or any portion of the record. Prior to certifying a copy of any record or portion thereof, the Director or his designee shall make all necessary corrections in order that the copy is a true and correct copy of the record, or those portions requested, and shall make a charge as provided by administrative order as amended from time to time for preparation of the record, instrument maps, picture or other exhibit; provided, the charges here authorized are not intended to repeal or amend any fee or schedule of fees otherwise established. The Chair, Vice-chair or Acting Chair of the Board of County Commissioners or Community Zoning Appeals Board at any zoning hearing before the Commission or Community Zoning Appeals Board may swear witnesses and, upon timely request in writing, compel the attendance of witnesses in the same manner prescribed in the Circuit Court. The Director shall employ a qualified court reporter to report the proceedings before the Board of County Commissioners and Community Zoning Appeals Board, who shall transcribe the notes only at the request of the County or other interested party, at the expense of the one (1) making the request. Such transcript, as well as the transcript of the proceedings before the Community Zoning Appeals Board, when certified by the reporter, may be used in a court review of a matter in issue.

It is the intent of the Board of County Commissioners that no decision under this chapter shall constitute a temporary or permanent taking of private property or an abrogation of vested rights (taking or vested rights deprivation). In the event that any court shall determine that a decision of the Board of County Commissioners or Community Zoning Appeals Board under this chapter constitutes a taking or vested rights abrogation, such decision of the board is declared to be non-final and the court is hereby requested to remand the matter to the Board of County Commissioners, which shall reconsider the matter after notice of the County Commission hearing is given pursuant to Section 33-310(c) through (f). In the event that a court fails to remand a matter to the Board of County Commissioners after finding that a taking or vested rights abrogation has occurred, the director is instructed to forthwith file an application to remedy such taking or vested rights abrogation, which application shall be heard directly by the Board of County Commissioners after notice is given pursuant to Section 33-310(c) through (f). The Board of County Commissioners may elect to request that any remand or director's application be deferred until a later point in the litigation, including the completion of any judicial appeals. Notwithstanding anything to the contrary contained in this chapter, the Board of County Commissioners shall have original administrative jurisdiction over any remand or director's application pursuant to this paragraph.

(Ord. No. 60-14, 4-19-60; Ord. No. 61-30, § 1, 6-27-61; Ord. No. 62-48, § 1F, 12-4-62; Ord. No. 64-65, § 6, 12-15-64; Ord. No. 65-11, § 2, 2-16-65; Ord. No. 66-66, § 5, 12-20-66; Ord. No. 76-74, § 1, 7-20-76; Ord. No. 78-52, § 2, 7-18-78; Ord. No. 79-91, § 1, 10-16-79; Ord. No. 94-37, § 4, 3-3-94; Ord. No. 95-215, § 1, 12-5-95; Ord. No. 96-127, § 38, 9-4-96; Ord. No. 13-16, § 11, 2-5-13)

The Department shall not issue any type of permit or certificate based upon any action of the Community Zoning Appeals Board which the County Commission has jurisdiction to review until a final decision has been rendered on the application by the County Commission as provided by this chapter; provided, however, a temporary conditional permit or certificate may be issued prior to such final decision if the Director should first determine that the withholding of the same would cause imminent peril to life or property and then only upon such conditions and limitations, including the furnishing of an appropriate bond, as may be deemed proper by the Director.

Upon application of the Director, any variance, special exception, new use, special permit or unusual use heretofore or hereafter granted that is not utilized within the three-year period following the date of its grant or approval, may be terminated by the Board of County Commissioners after the required noticed public hearing or hearings, if it is determined that there have been sufficient changes in circumstances in the neighborhood and area concerned that to permit the same to be used would be detrimental to the area and incompatible therewith; provided, a variance shall not be terminated if the guidelines for granting the same exist. The foregoing provision shall not apply if the resolution granting the variance, special exception, new use, special permit or unusual use establishes a specific time limitation for utilizing the same. In such instances, the time limitation established by such resolution shall prevail.

In the event application is made for a change of zoning on property which possesses any variance, special exception, new use, special permit or unusual use not yet utilized, no permits or certificates shall be issued for such variance, special exception, new use, special permit or unusual use until the hearing has been concluded. If the application for change of zoning is approved, the variance, special exception, new use, special permit or unusual use shall terminate, unless continued by the rezoning resolution; otherwise such variance, special exception, new use, special permit or unusual use shall remain in full force and effect, unless terminated by other provisions in this section.

A variance, special exception, new use, special permit or unusual use shall be deemed to have been utilized if the use pursuant thereto shall have been established, or if a building permit has been issued, acted upon, and the development to which such variance, special exception, new use, special permit or unusual use is an integral part is progressively and continuously carried to conclusion.

(Ord. No. 60-14, 4-19-60; Ord. No. 61-30, § 1, 6-27-61; Ord. No. 73-104, § 1, 12-18-73; Ord. No. 96-127, § 38, 9-4-96)

Editor's note— Section 33-318, pertaining to pending applications, has been deleted as obsolete. It was derived from Ord. No. 60-14, adopted April 19, 1960 and Ord. No. 61-30, § 1, adopted June 27, 1961.

(a)

Whenever it shall be made to appear to the County Manager that it is in the public interest to make a comprehensive determination as to whether existing County zoning districts applying to a portion of the area of Miami-Dade County are appropriate, and it is further made to appear to him that the said existing zoning districts may be detrimental to the said area should they continue to remain applicable and building permits be issued predicated thereon the County Manager shall immediately issue his administrative order delineating the area in question and prohibiting the issuance of building permits therein.

(b)

Any administrative order issued pursuant to Subsection (a) shall be complied with by all Miami-Dade County personnel and shall be effective until reversed, modified or superseded by order of the Board of County Commissioners.

(c)

Immediately upon issuance of any administrative order pursuant to Subsection (a), the County Manager shall notify the Clerk of the Board of County Commissioners, whose duty it shall be to place the matter before the Board of County Commissioners for consideration and review following a public hearing as soon as is reasonably practicable.

(d)

The aforesaid Clerk shall give reasonable notice by publication in a newspaper of general circulation in Miami-Dade County of the public hearing which he has scheduled before the Board of County Commissioners.

(e)

At the public hearing the Board of County Commissioners shall inquire into the propriety of a building moratorium and may reverse, modify or supersede any moratorium order previously issued. The Board's determination shall be predicated upon the reasonable necessity for a detailed comprehensive analysis of the area in question and the probability of detriment to the character of the area by the continued application of the existing zoning districts.

(f)

Should the Board of County Commissioners determine that a building moratorium is reasonably necessary, it shall order the same and direct that no building permits be issued within the affected area. The Board's order shall fix a time within which the County Manager shall report back to the Board with his recommendation relating to appropriate zoning districts for the affected area. The said time limitation shall be a reasonable one (1), predicated upon the time needed for a comprehensive analysis of the area. The initial commission moratorium shall be for a period not to exceed one hundred twenty (120) days. The Commission on its own motion or otherwise may continue any moratorium for a longer period of time if reasonably necessary. This provision is supplemental to Subsection (g) hereof.

(g)

Should the County Manager be unable to report back to the Board within the time prescribed by its moratorium order, upon timely request by the County Manager and after public hearing on the need therefor, the Board may reasonably extend the time limitation.

(h)

Upon the submission of the County Manager's report and recommendations to the Clerk of the Board, the Clerk shall call a public hearing thereon before the Board at the earliest practicable time, after reasonable notice by publication in a newspaper of general circulation in Miami-Dade County. After said public hearing the Board shall make its determination as to whether the zoning districts shall remain the same or shall be changed. Should the Board determine that the zoning districts shall remain the same, it shall immediately issue its order terminating the building moratorium. Should the Board determine that the applicable zoning districts should be changed, or new districts created therefor, it shall issue its order continuing the building moratorium and shall immediately take the actions required elsewhere within the Miami-Dade County Code for such changes. Provided, however, where zoning district boundary changes are involved the Board of County Commissioners shall hear the matters directly without intervening administrative review.

(i)

Upon the completion of all zoning district changes relating to the affected area, the Board shall issue its order terminating the building moratorium.

(j)

If any planning study performed by the Department, the Planning Advisory Board, or a specially hired or appointed County agency, indicates the necessity for zoning changes, the provisions of Sections 33-319 through 33-322, Miami-Dade County Code, may be utilized to restrict the issuance of building permits until such changes have been finally considered by the Board of County Commissioners. These provisions of Sections 33-319 through 33-322, Miami-Dade County Code, which anticipate a future planning study are rendered inapplicable to this subsection.

(k)

An administrative building moratorium shall be imposed upon the occurrence of the following events:

(1)

As soon as the County Manager learns that a grand jury has indicted or that an information has been formally returned against a County Commissioner, or Community Zoning Appeals Board member charging said Commissioner, Community Zoning Appeals Board member with bribery, accepting unauthorized compensation, or other act of fraud in a zoning case relating to a particular parcel or parcels of real property, then the County Manager shall immediately issue an administrative order identifying the real property in question and prohibiting the issuance of building permits for said property. Such order of moratorium shall remain in effect until the completion of the criminal judicial process and the determination of guilty or not guilty as to the County Commissioner, Community Zoning Appeals Board member involved being reviewed by the highest judicial tribunal to consider the case. Should the Commissioner, Community Zoning Appeals Board member be found not guilty, then the administrative order shall be deemed dissolved. Should the County Commissioner, Community Zoning Appeals Board member be found guilty, then a motion to reconsider the zoning on the real property in question may properly be made by any County Commissioner or when applicable by a Community Zoning Appeals Board member.

(2)

If an order of moratorium is imposed on a parcel or parcels of real property pursuant to this subsection, and the owner or owners of such property request the Board of County Commissioners or where appropriate the Community Zoning Appeals Boards to reconsider the zoning on that property, then a motion to reconsider the said zoning may properly be made by any County Commissioner or where appropriate any Community Zoning Appeals Board member. If the motion to reconsider is approved by the Board of County Commissioners or where appropriate the Community Zoning Appeals Board and the reconsideration of the zoning on the said property occurs, then the building moratorium shall end with the conclusion of the reconsideration process delineated below in Subsection (3).

(3)

Upon passage of a motion as provided in Subsection (2) above, the Clerk of the Board shall immediately notify the Director. The Board of County Commissioners or where appropriate the Community Zoning Appeals Board shall conduct its reconsideration only after notice of the time and place of the meeting has been first published as provided in Section 33-310 herein. If the existing zoning would permit a development of County impact (as defined in Section 33-304 herein) the Developmental Impact Committee shall prepare a report and present its recommendations to the appropriate Board at the advertised public hearing; otherwise, the Director and the Zoning Official shall furnish their reports and recommendations to the appropriate Board. The sole issue to be considered by the Board of County Commissioners or Community Zoning Appeals Board shall be whether the present zoning on the subject property is appropriate. In determining this issue, the Board of County Commissioners or the Community Zoning Appeals Board shall be guided by the standards and guides specified in this chapter. The Board of County Commissioners, or where appropriate, the Community Zoning Appeals Board after considering the items delineated herein and the criteria specified in this chapter, shall by resolution either reaffirm the existing zoning or rezone the subject property. The provisions of Section 33-316 relating to exhaustion of remedies and court review are fully applicable to proceedings held in accordance with this subsection.

(Ord. No. 72-18, § 1, 3-14-72; Ord. No. 73-55, §§ 1—5, 5-15-73; Ord. No. 75-100, § 1, 11-4-75; Ord. No. 75-109, § 1, 12-2-75; Ord. No. 75-117, § 1, 12-16-75; Ord. No. 76-8, § 1, 1-20-76; Ord. No. 95-215, § 1, 12-5-95; Ord. No. 96-127, § 38, 9-4-96)

(a)

Should any person make written application to the County Manager for the issuance of an administrative order provided by Section 33-319(a), Miami-Dade County Code, and the County Manager refuses to issue such order, or fails to take action thereon within thirty (30) days, such person may make written application to the Board of County Commissioners for the issuance of a building moratorium by that Board. Such application to the Board shall be filed with the Clerk of the Board of County Commissioners, whose duty it shall be to placed the matter before the Board of County Commissioners as soon as is reasonably practicable for the Board's determination as to whether a public hearing shall be called thereon. The County Manager shall be notified by the Clerk of the date that the matter is to be considered by the Board. The word "person" as used in this subsection includes, but is not limited to, any individual, firm, corporation, and governmental entity, including the Planning Advisory Board, and the Community Zoning Appeals Board.

(b)

Should the Board determine that a public hearing should be held as to whether a building moratorium is appropriate, it shall call the same for the earliest practicable date and give reasonable notice thereof by publication in a newspaper of general circulation in Miami-Dade County. Pending the public hearing the Board may issue an order prohibiting the issuance of building permits in the affected area.

(c)

The procedure to be followed for this section, after the completion of the steps provided in Subsections (a) and (b) above, is that set forth in Section 33-319(e) through (i), Miami-Dade County Code.

(Ord. No. 72-18, § 1, 3-14-72; Ord. No. 98-125, § 21, 9-3-98)

Notwithstanding the issuance of any moratorium order, the County Manager may authorize the issuance of building permits for nondeleterious items including, but not limited to, fences, repairs and like matters, where he determines that such permit will not affect the outcome of the planning study; provided, however, that with regard to any particular moratorium the Board of County Commissioners may by ordinance increase or decrease allowable exemptions and may by ordinance provide either a supplemental or exclusive procedure for acting upon requests for exemptions. Such procedure may vest jurisdiction and responsibility for acting upon requests for exemptions in the County Manager or any County administrative or quasijudicial body or board.

(Ord. No. 72-18, § 1, 3-14-72; Ord. No. 83-83, § 1, 9-20-83)

During the existence of any building moratorium, no applications for variances, special exceptions, zoning district changes, minimum square footage requirement changes, unusual and new uses, modifications or elimination of conditions, restrictions or limitations within the affected area shall be acted upon by any County agency, except as provided in Section 33-319(h), or Section 33-321, or unless otherwise specifically provided by the Board of County Commissioners by ordinance with regard to a specific moratorium.

(Ord. No. 72-18, § 1, 3-14-72; Ord. No. 73-55, § 6, 5-15-73; Ord. No. 83-83, § 2, 9-20-83)

(a)

Whenever it shall be made to appear to the County Manager that it is in the public interest to make a comprehensive determination as to whether the existing County master plan as it applies to a portion of the area of Miami-Dade County is outdated and of little or no use in formulating correct zoning patterns in relation thereto, or as to whether existing zoning districts are compatible with existing or proposed growth patterns and land uses, the County Manager shall immediately issue his administrative order delineating the area in question and prohibiting the consideration by any County department, board or agency of any zoning amendment, modification, variance, special exception or other zoning change, in said area. However, applications for special exceptions not involving zoning changes but incorporating requests for site plan approval only may be considered and appropriate action taken thereon.

(b)

Any administrative order issued pursuant to Subsection (a) shall be complied with by all Miami-Dade County departments, boards and agencies and shall be effective until reversed, modified or superseded by order of the Board of County Commissioners.

(c)

Immediately upon issuance of any administrative order pursuant to Subsection (a), the County Manager shall notify the clerk of the Board of County Commissioners whose duty it shall then be to place the matter before the Board of County Commissioners for consideration and review following a public hearing as soon as is reasonably practicable. The aforesaid clerk shall give reasonable notice by publication in a newspaper of general circulation in Miami-Dade County of the public hearing which he has scheduled before the Board of County Commissioners.

(d)

At the public hearing the Board of County Commissioners shall inquire into the propriety of the zoning moratorium and may reverse, modify or supersede the zoning moratorium order previously issued. The Board's determination shall be predicated upon the need for a detailed and comprehensive analysis of the area in question which would enable the Board to correct any deficiencies in the master plan or to provide any changes necessary or desirable in the master plan.

(e)

Should the Board of County Commissioners determine that a zoning moratorium pending the preparation of a detailed and comprehensive analysis of the area in question is necessary or desirable, it shall order the continuance of the County Manager's zoning moratorium order. The Board's order shall fix a time within which the County Manager shall report back to the Board with his recommendations relating to modifying or correcting the County master plan as to the affected area. The said time limitation shall be a reasonable one, predicated upon the time needed for a comprehensive analysis of the area by the County Manager and all planning agencies of the County.

(f)

Upon the submission of the County Manager's report and recommendations to the Clerk of the Board, the Clerk shall call a public hearing thereon before the Board at the earliest practicable time, after reasonable notice by publication in a newspaper of general circulation in Miami-Dade County. After said public hearing, the Board shall either amend the master plan and terminate the zoning moratorium order or, if it finds no amendment in order or necessary, terminate the zoning moratorium; provided, however, the Board may continue the moratorium or any portion thereof for an additional period of time if the Board finds such continuance to be reasonably necessary.

(g)

Should the County Manager be unable to report back to the Board within the time prescribed by its moratorium order, upon timely request, by the County Manager and after public hearing on the need therefor, the Board may reasonably extend the time limitations for the report and the moratorium if the Board finds such extension is reasonably necessary.

(Ord. No. 72-89, § 1, 12-5-72; Ord. No. 73-19, § 1, 3-8-73; Ord. No. 83-83, § 3, 9-20-83)

(a)

Should any person make written application to the County Manager for the issuance of an administrative order as provided by Section 33-323(a), Miami-Dade County Code, and the County Manager refuses to issue such order, or fails to take action thereon within thirty (30) days, such person may make direct application in writing to the Board of County Commissioners for the issuance of a zoning moratorium order. Such application to the Board shall be filed with the Clerk of the Board of County Commissioners, whose duty it shall be to place the matter before the Board of County Commissioners as soon as is reasonably practicable for the Board's determination as to whether a public hearing should be called thereon. The word "person" as used in this subsection includes, but is not limited to, any individual, firm, corporation, or governmental entity, including the Planning Advisory Board and the Community Zoning Appeals Board.

(b)

Should the Board determine that a public hearing should be held on whether a zoning moratorium is appropriate, it shall call the same for the earliest practicable date and give reasonable notice thereof by publication in a newspaper of general circulation in Miami-Dade County. Pending the public hearing the Board may issue an order prohibiting the consideration by any County department, board or agency of any zoning amendment, modification, variance, special exception or other zoning change in said area.

(c)

The procedure to be followed for this section, after the completion of the steps provided in Subsections (a) and (b) above, is that set forth in Section 33-323(e) and (f), Miami-Dade County Code.

(Ord. No. 72-89, § 1, 12-5-72; Ord. No. 98-125, § 21, 9-3-98)