In addition to any authority granted the BOCC by state law, the Comprehensive Plan or this Land Development Code, the BOCC shall have the following powers and duties:

(a)

To adopt and amend the future land use map, and official land use (zoning) district map after recommendation by the Planning Commission. The public hearings and adoptions shall take place at the BOCC's meeting site in Key West, Marathon or Key Largo, whichever site is closest to the subject property or next closest to the subject property;

(b)

To initiate amendments to the text and maps of the Comprehensive Plan and this Land Development Code;

(c)

To hear, review and adopt amendments to the text and maps of the Comprehensive Plan and this Land Development Code after recommendation by the Planning Commission;

(d)

To designate and appoint a hearing officer to make recommendations in regard to determinations of vested rights or such other decisions as the BOCC may deem appropriate;

(e)

To take such other action not delegated to the Planning Commission as the BOCC may deem desirable and necessary to implement the provisions of the Comprehensive Plan and this Land Development Code;

(f)

To hear and act upon applications for developments of regional impact; development agreements; agreements with the State Land Planning Agency under Chapter 380, F.S.; plat approvals; floodplain management variances; appeals of the Planning Director's decisions on impact fees; and any other item which the BOCC, in its discretion, decides should be heard; and to make adoptions of findings of fact and orders for beneficial uses and vested rights; designations of archaeological, historical or cultural landmarks; designations of areas of critical county concern or any modification of such designations. The above-referenced public hearings and adoptions shall take place at the board's meeting site in Key West, Marathon or Key Largo, whichever site is closest to the subject property or at the board's meeting site that is next closest to the subject property. In the event a proposed area of critical county concern will affect various properties a portion of which are closest to one hearing site and a portion of which are closest to another, then at least one hearing shall be held at each site before any final board action may be taken; and

(g)

To establish, by resolution, a schedule of fees to be charged by the Planning and Environmental Resources Department to persons filing text amendments, map amendments, land development permit applications, land development approval applications, and land development order applications however styled, and any land development order appeal however styled. In establishing the fee amounts, the Planning Director shall present evidence to the BOCC of the cost incurred by the Department in staff time, and material expended, that are usually required to review the particular item that is the subject of the proposed fee. The overall general administrative and operational overhead of the Department may not be included in the fee amount. While mathematical exactitude is not required, no fee adopted by the BOCC pursuant to this subsection may be in excess of the amount reasonably supported by the evidence submitted by the Planning Director regarding the staff time incurred, and material expended, usually required for the review of the particular item that is the subject of the proposed fee. Any fee resolution considered by the BOCC pursuant to this subsection must be heard by the BOCC at a time certain public hearing with public notice provided in the same manner as the public notice required for the adoption of an ordinance under F.S. Section 125.66(2)(a). At the public hearing, members of the public must be afforded an opportunity to comment on the proposed fees. The fees established shall generally be nonrefundable; provided, however, the Planning Director may approve a refund of up to 50 percent of the fee upon good cause shown by the applicant and the finding that the refund will not result in Department staff time costs or material costs already expended going unreimbursed.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

(a)

Creation. There is hereby established a Planning Commission.

(b)

Powers and duties. The Planning Commission shall have the following powers and duties:

(1)

To serve as the Local Planning Agency (LPA), required by F.S. Section 163.3174;

(2)

To prepare or cause to be prepared a comprehensive plan or element thereof and make recommendations to the BOCC regarding the adoption or amendment of such comprehensive plan or element;

(3)

To review and make recommendations to the BOCC in regard to amendment of the future land use map and official land use (zoning) district map;

(4)

To hear, review and approve or disapprove applications for major conditional use permits, and those minor conditional use permits requiring review by the Planning Commission pursuant to Section 110-69;

(5)

To prepare, hear, review and make recommendations to the BOCC on applications for amendment to the text of this Land Development Code, and to the consistency of the proposal with the adopted comprehensive plan;

(6)

To hear, review and recommend approval or disapproval of all plats;

(7)

To hear, consider and act on appeals of administrative actions;

(8)

To act to ensure compliance with major conditional use permits, as approved and issued;

(9)

To make its special knowledge and expertise available upon reasonable written request and authorization of the BOCC to any official, department, board, commission or agency of the county, state or federal government; and

(10)

To adopt such rules of procedure necessary for the administration of its responsibilities not inconsistent with this article to govern the commission's proceedings.

(c)

Qualifications for membership. Members shall be chosen from persons with experience in the areas of planning, environmental science, the business community, the development industry, and other local industries. Members of the Planning Commission shall be qualified electors in the county. In the event that any member is no longer a qualified elector or is convicted of a felony or an offense involving moral turpitude while in office, the BOCC shall terminate the appointment of such person as a member of the Planning Commission.

(d)

Membership: appointment, removal, terms, and vacancies.

(1)

The Planning Commission shall be composed of five members. Vacancies shall be filled by nomination by the district's county commissioner for the district whose member on the BOCC made the previous appointment for the vacant seat. The county commissioner shall nominate a person qualified as provided in subsection (c) of this section to be approved by the BOCC by a vote of at least three members. The geographical representation of the Keys shall be considered, but not required when making appointments to the Planning Commission. If there is a vacancy on the Planning Commission which remains unfilled for more than 60 days, the County Mayor may appoint a person to hold the office until an appointment is approved by the BOCC.

(2)

Members shall serve at the pleasure of the BOCC. Removal shall be approved by the affirmative vote of at least three members of the BOCC.

(3)

All appointments shall terminate upon replacement by a county commissioner with another person appointed and approved by the BOCC. Confirmation of existing appointments or nominations for new appointments by all county commissioners elected in the fall of each election year shall be made by those commissioners at or before the regular monthly meeting of the BOCC in February of each year following an election year. If such ratification or appointment does not take place, the respective Planning Commission seat shall be deemed vacant. Terms of the Planning Commission appointments shall be from their appointment dates until replaced or terminated. Planning commission members serving as of August 1, 2009 shall be subject to the provision of this subsection and shall serve until replaced as described above, whether filling out the term of a previously appointed member or serving their own terms.

(4)

At an annual organizational meeting, the members of the Planning Commission shall elect one of its members as chair and one as vice-chair. In the absence of the chair, the vice-chair shall act as chair and shall have all powers of the chair. The chair shall serve a term of one year. No member shall serve as chair for more than two consecutive terms.

(5)

The presiding officer of any meeting of the Planning Commission may administer oaths, shall be in charge of all proceedings before the Planning Commission, and shall take such action as shall be necessary to preserve order and the integrity of all proceedings before the Planning Commission.

(6)

If a Planning Commission member desires to be excused from attendance at any commission meeting, he/she shall contact the Planning Commission coordinator prior to the meeting. The Planning Commission coordinator shall report the request to the chair who shall make the determination to grant or deny the request. If any member of the commission shall fail to attend three regular consecutive meetings without prior notice and an excuse sufficient to the Planning Commission, such failure shall constitute sufficient grounds for termination of the member's appointment. The Planning Commission coordinator shall notify the chair or the vice-chair, as the case may be, and he or she shall immediately file a notification of such nonattendance with the County Administrator for placement on the agenda of the BOCC; and the BOCC shall, by appropriate action, terminate the appointment of such person and fill the vacancy thereby created as soon as practicable.

(7)

A representative of the school district shall be appointed by the school board as a non-voting ex-officio member of the Planning Commission and the representative may attend those meetings at which the Planning Commission considers text and map amendments to the Comprehensive Plan or Land Development Code that would, if approved, affect the school district by.

(8)

The base commander of the Naval Air Station Key West or designee shall be a non-voting ex-officio member of the Planning Commission as long as such a requirement for military installation representation is in the Florida Statutes.

(e)

Planning Commission Coordinator/Recording secretary. The Planning Director shall appoint a planning commission coordinator/recording secretary to serve the Planning Commission. The secretary shall keep minutes of all proceedings of the Planning Commission, which minutes shall be a summary of all proceedings before the Planning Commission, attested to by the secretary, and which shall include the vote of each member upon every question. The minutes shall be approved by a majority of the members of the Planning Commission voting. In addition, the secretary shall maintain all records of commission meetings, hearings and proceedings, agendas and minutes.

(f)

Staff. The Planning and Environmental Resources Department shall be the professional staff of the Planning Commission.

(g)

Quorum and necessary vote. No meeting of the Planning Commission may be called to order, nor may any business be transacted by the Planning Commission, without a quorum consisting of at least three members of the Planning Commission being present. The chair shall be considered and counted as a member. The concurring vote of at least three members shall be necessary for the commission to take action on major conditional use permit applications, final plat applications, and text and map amendments to the text of the Comprehensive Plan and Land Development Code. All other actions shall require the concurring vote of a simple majority of the members of the commission then present and voting.

(h)

Compensation. Planning Commission members shall be compensated as determined by the BOCC.

(i)

Meetings, hearings and procedure.

(1)

Regular meetings of the Planning Commission shall be scheduled monthly beginning January of every calendar year and special meetings may be scheduled as required by a majority of the BOCC, the chair of the Planning Commission, or a majority of the members of the Planning Commission.

(2)

The regularly scheduled (monthly) meetings shall be held in Marathon. All items which relate to specific properties such as but not limited to major conditional use permits, variances and administrative appeals, shall be held at the regularly scheduled meetings, with the exception of property specific applications that have extenuating circumstances that require such applications to be considered at special meetings in the lower or upper keys. The Planning Commission may, in its discretion, schedule special meetings as required by the demand for such meetings. In cases where an item is postponed due to the lack of a quorum of the Planning Commission, the item shall be continued to a special meeting or to the next available regular meeting. In cases where an item is postponed for any other reason, the item shall be continued to the next regularly scheduled meeting or as otherwise decided by the Planning Commission. Items which are related to specific properties, such as but not limited to text amendments to the Comprehensive Plan and the Land Development Code, may be heard in Marathon or the Planning Commission may, in its discretion, schedule such items for the most appropriate subarea or for additional meetings in the lower or upper keys.

(3)

All meetings and hearings of the commission shall be open to the public.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

(a)

Duties. The Planning and Environmental Resources Department shall perform the planning and environmental functions for the county and shall provide technical support and guidance for action on applications for development approval and shall perform such other functions as may be requested by the BOCC or the Planning Commission.

(b)

Planning Director.

(1)

Creation and appointment. There shall be a Planning and Environmental Resources Director, also referred to as the Planning Director, selected and approved by the Assistant County Administrator and the County Administrator, and the BOCC if desired.

(2)

Jurisdiction, authority and duties. In addition to the jurisdiction, authority and duties that may be conferred upon the Planning Director by other provisions of this Land Development Code, the Planning Director shall have the following jurisdiction, authority and duties:

a.

To serve as staff to the Planning Commission and to inform such body of all facts and information at his or her disposal with respect to applications for development approval or any other matters brought before it;

b.

To assist the BOCC and the Planning Commission in the review of the Comprehensive Plan, including the capital improvements program, the Land Development Code, and proposed amendments thereto;

c.

To maintain and update the future land use map and official land use (zoning) district map;

d.

To maintain development review files and other public records related to the department's affairs;

e.

To review, or cause to be reviewed, applications for major conditional use permits and plat approvals;

f.

To review and approve, approve with conditions, or deny applications for minor conditional use permits;

g.

To recommend amendments to the Comprehensive Plan and the Land Development Code;

h.

To render interpretations of the Comprehensive Plan, the Land Development Code, or the boundaries of the official land use (zoning) district map and future land use map;

i.

To evaluate and act upon claims of nonconforming uses and structures;

j.

To work to coordinate all local, regional, state and federal environmental and other land development permitting processes affecting development in the county;

k.

To plan for and evaluate all transportation improvements for the county, and coordinate such activities with the Florida Department of Transportation;

l.

To issue letters of understanding and letters of development rights determination;

m.

To establish such rules of procedure necessary for the administration of his or her responsibilities under the Comprehensive Plan and Land Development Code; and

n.

Whenever requested to do so by the County Administrator or the BOCC, with the assistance of other county departments, to conduct or cause to be conducted surveys, investigations and studies, and to prepare or cause to be prepared such reports, maps, photographs, charts and exhibits as may be requested.

(c)

Development Review Committee.

(1)

Creation and composition. As required for the items being reviewed, the Development Review Committee (DRC) shall be composed of the following members:

a.

The Planning Director or his or her designee;

b.

The Planning and Development Review Manager;

c.

The Comprehensive Planning Manager;

d.

The County Biologist;

e.

The planner and/or biologist in charge of the particular item being considered;

f.

Public works and engineering personnel, as needed based on the applications being reviewed;

g.

Health department personnel, as needed based on the applications being reviewed;

h.

The building official or his or her designee, as needed based on the applications being reviewed;

i.

Any other county employee or official designated by the County Administrator or the Planning Director;

j.

Representatives of any local, regional, state or federal agency that has entered into an intergovernmental agreement with the county for coordinated development review when appropriate; and

k.

A representative of the state land planning agency shall serve as an ex officio member of the DRC as long as the county is located within an area of critical state concern.

(2)

Development review committee meetings.

a.

The DRC shall meet at least once a month unless there is no item for the agenda:

1.

Review scheduled applications for development approval as required by this Land Development Code and provide comments on such applications to the Planning Director and the applicant.

2.

Review scheduled applications for amendments to the text of the Comprehensive Plan and the Land Development Code and provide comments on such applications to the Planning Director and the applicant.

3.

Review scheduled applications for amendments to the future land use map and official land use (zoning) district map and provide comments on such applications to the Planning Director and the applicant.

b.

The Planning Director, or his or her designee, shall serve as chair of the DRC and the Planning Director or his or her designee shall maintain such minutes and records as are required by state law.

c.

Any action reviewing an application shall not preclude the applicant's right to be present when his or her project is discussed before this body.

d.

Staff reports on applications prepared by staff from the Planning and Environmental Resources Department shall be given to the Planning Director and the applicant.

e.

Staff reports on applications prepared by DRC members not in the Planning and Environmental Resources Department may be provided to the other members of the DRC, the Planning Director, and the applicant.

f.

A resolution and staff report, considering DRC recommendations and other relevant information shall be prepared after the DRC meeting for those items proceeding to the Planning Commission.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

In addition to the jurisdiction, authority and duties that may be conferred upon the county attorney by other provisions of this Monroe County Code, the County Attorney shall have the following authority and duties:

(a)

To review and approve as to form all written findings of fact and resolutions drafted by the Planning Commission or the BOCC in connection with any requirement of the Comprehensive Plan and the Land Development Code;

(b)

To review and approve as to form all easements, declarations of covenants, letters of credit, performance guarantees or other such documentation; and

(c)

To advise the staff of Planning and Environmental Resources Department, Development Review Committee, Planning Commission, and BOCC in regard to the legal issues that may arise during implementation of the Comprehensive Plan and the Land Development Code.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

In addition to the jurisdiction, authority and duties that may be conferred upon the county engineer by other provisions of the Monroe County Code, the County Engineer shall have the following authority and duties:

(a)

To serve as a member of the Development Review Committee;

(b)

To review and approve the design specifications for required subdivision improvements;

(c)

To calculate the amounts of required subdivision improvement guarantees;

(d)

To determine the sufficiency of improvement guarantee fund balances; and

(e)

To inspect, approve and recommend acceptance of public improvements.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

(a)

Creation and appointment. The BOCC shall appoint one or more hearing officers or special magistrates to hear and consider such matters as may be required under any provision of this Land Development Code or as may be determined to be appropriate by the BOCC from time to time. Such hearing officers shall serve at the pleasure of the BOCC for such period as is determined by the BOCC. Such hearing officers shall be compensated at a rate to be determined by the BOCC, which amount shall be reimbursed to the county by the applicant. Whoever shall accept an appointment as a hearing officer shall, for a period of one year from the date of termination as holder of such office, not act as agent or attorney in any proceeding, application or other matter before any decision-making body of the county in any matter involving property that was the subject of a proceeding which was pending during the time he served as a hearing officer.

(b)

Minimum qualifications. A hearing officer shall have the following minimum qualifications:

(1)

Be an attorney admitted to practice before the state supreme court;

(2)

Demonstrate knowledge of administrative, environmental and land use law practice and procedure; and

(3)

Hold no other appointive or elective public office or position during the period of appointment.

(c)

Duties. A hearing officer shall have the following duties:

(1)

To conduct hearings on such matters as required under the Land Development Code;

(2)

To conduct hearings on such matters as may be requested by the BOCC;

(3)

To render to the BOCC a written report containing a summary of the testimony and evidence given and findings and recommendations regarding the specific standards applicable to the particular application for development approval;

(4)

To issue subpoenas to compel the attendance of witnesses and production of documents, and to administer oaths to witnesses appearing at the hearing; and

(5)

To perform such other tasks and duties as the BOCC may assign.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

(a)

County biologists. The county shall employ qualified biologists to be available to conduct the field surveys required under this Land Development Code. The costs incurred by the county for conducting such surveys shall be reimbursed by the applicant for development approval for whom the survey is conducted.

(b)

Alternate biologists. An applicant for development approval may use a biologist not employed by the county for a required field survey, provided that the biologist is a professional familiar with the natural environment of the Florida Keys. Biological assessments by alternate biologists are subject to review and approval by the Planning and Environmental Resources Department and the Planning Director.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

The purpose of this article is to regulate and limit the continued existence of land uses and structures established prior to the date of the enactment of the original ordinance from which this Land Development Code is derived (September 15, 1986) and/or prior to the date of the enactment of a subsequent ordinance amending a land development regulation within this Land Development Code that do not or no longer conform to the provisions of this Land Development Code. Nonconformities may continue, but the provisions of this article are designed to curtail substantial investment in nonconformities and to bring about their eventual elimination in order to preserve the integrity of this Land Development Code.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016; Ord. No. 015-2023, § 2, 6-21-2023)

(a)

All known, lawful nonconforming land uses and structures may be registered with the Planning and Environmental Resources Department. In the course of its duties related to development review, staff of the department shall identify and recognize nonconforming land uses and structures. Property owners may also independently apply to the department for such determinations.

(b)

The Planning Director, or his or her assigned designee, shall review available documents to determine if a body of evidence exists supporting the lawful establishment of a land use or structure prior to the change in regulation that deemed the land use or structure nonconforming. Any issued Monroe County building permit(s) for the original lawful establishment or lawful construction of the land use or structure, confirming its approval and existence prior to the change in regulation that deemed the land use or structure nonconforming, can stand as the only piece of evidence. If there are no such building permit(s) available, additional evidence shall be documented and submitted to the Planning Director on a form provided by the Planning and Environmental Resources Department and shall include, at a minimum, at least two of the following documents:

(1)

Any other issued Monroe County building permit(s) approving or supporting the existence of the structure(s) and/or use;

(2)

Documentation from the Monroe County Property Appraiser's Office supporting the existence of the structure(s) and/or use;

(3)

Aerial photographs and original dated photographs showing the structure or land use existed on site;

(4)

State and/or county licenses, supporting the existence of the structure(s) and/or land use;

(5)

Documentation from the utility providers indicating the type of service (residential or commercial) provided; and

(6)

Similar supporting documentation not listed above as determined suitable by the Planning Director.

(c)

Once discovered and determined to be lawful, the Planning Director, or his or her designee, shall add recognized lawful nonconforming land uses and structures to an official registry.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016; Ord. No. 015-2023, § 2, 6-21-2023)

(a)

Authority to continue. Nonconforming land uses or structures may continue in accordance with the provisions of this section. Notwithstanding any provision of this section or of this Land Development Code and/or the Comprehensive Plan:

(1)

Leases, subleases, assignments or other occupancy agreements for compensation for less than 28 days in duration shall be discontinued and shall not be renewed, extended or entered into, in any district that prohibits vacation rental uses after the effective date of the original ordinance from which this section is derived (September 15, 1986) unless a vacation rental use was established and obtained all required state and local permits and licenses prior to September 15, 1986, under previous Monroe County Code provisions expressly allowing vacation rental uses; and

(2)

Nonconforming nonresidential uses in OS, NA, SS, SR, SR-L, IS, IS-D, URM, and UR land use districts, which lawfully existed on January 4, 1996, may develop, redevelop, reestablish and/or substantially improve, provided that the use is limited in intensity, floor area, and to the type of use that existed on January 4, 1996 and is registered in accordance with Section 102-55.

(b)

Ordinary repair and maintenance. Normal maintenance and repair to permit continuation of nonconforming land uses registered in accordance with Section 102-55 may be performed.

(c)

Expansions. Nonconforming land uses shall not be expanded. This prohibition shall be construed so as to prevent:

(1)

Enlargement of nonconforming land uses by additions to the structure in which such nonconforming land uses are located; or

(2)

Occupancy of additional lands; however, accessory uses associated with a lawful nonconforming principal use may be permitted if in compliance with all other provisions of the LDC.

(d)

Relocation. A structure in which a nonconforming land use is located shall not be moved unless the land use thereafter conforms to the provisions of the future land use category and the land use (zoning) district into which it is relocated.

(e)

Change in use. A nonconforming land use shall not be changed to any other land use unless the new land use conforms to the provisions of the future land use category and the land use (zoning) district in which it is located.

(f)

Termination.

(1)

Abandonment or discontinuance. Where a nonconforming land use or structure is voluntarily discontinued or abandoned, as defined in Section 101-1, for eighteen (18) consecutive months, then such use may not be reestablished or resumed and any subsequent use must conform to the provisions of this Land Development Code and the Comprehensive Plan. Leases, subleases, assignment or other occupancy agreement for compensation for less than 28 days in duration shall be discontinued and shall not be renewed, extended or entered into, in any district that prohibits vacation rental use after the effective date of the original ordinance from which this section is derived (September 15, 1986).

(2)

Damage or destruction. Except as provided in Section 102-56(f)(3) and (4), if a structure in which a nonconforming land use is located is damaged or destroyed so as to require substantial improvement, then the structure may be repaired or restored only for land uses that conform to the provisions of the land use (zoning) district in which it is located. Fair market value shall be determined by reference to the official tax assessment rolls for that year or by an appraisal by a qualified independent appraiser. The extent of damage or destruction shall be determined by the building official, in consultation with the Planning Director, by comparing the estimated cost of repairs or restoration with the fair market value (such damage or destruction may be voluntarily or due to natural phenomena whose effects could not be prevented by the exercise of reasonable care and foresight).

(3)

Damage and destruction of nonconforming land uses in commercial fishing districts (CFA, CFV and CFSD) and Community Center Overlay Districts (CC). In the CFA, CFV, and CFSD land use (zoning) districts and the CC overlay districts identified in Section 130-132 through Section 130-140, nonconforming land uses lawfully established as of September 15, 1986, may be rebuilt even if 100 percent destroyed, provided that they are rebuilt to preexisting use, building footprint and configuration without increase in density or intensity of use identified in Section 130-157 and registered in accordance with Section 102-55. Development shall be brought into compliance to the maximum extent practicable, as determined by the Planning Director.

(4)

Damage and destruction of water-dependent and water-related commercial nonconforming uses. Lawfully established water-dependent and water-related commercial uses which are identified as a source of economic sustainability within a Livable CommuniKeys Plan may be permitted to be rebuilt even if 100 percent destroyed provided that they are rebuilt to preexisting use and registered in accordance with Section 102-55. Development shall be brought into compliance to the maximum extent practicable, as determined by the Planning Director.

(5)

Amortization. Any nonconforming land use may be subject to compulsory termination when it is found detrimental to the conservation of the value of surrounding land and improvements, and therefore is tending to deteriorate or blight the neighborhood. In ordering the compulsory termination of a nonconforming land use, the BOCC will establish a definite and reasonable amortization period during which the nonconforming land use may continue while the investment value decrement resulting from termination is amortized. Determination of the amount to be amortized shall be based on the value and condition of the land and improvements for the nonconforming land use less their value and condition for a conforming land use, and such other reasonable costs as the termination may cause. The rate of amortization shall be in accordance with reasonable economic practice.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016; Ord. No. 015-2023, § 2, 6-21-2023)

(a)

Authority to continue. A nonconforming structure devoted to a use permitted in the land use (zoning) district in which it is located, or devoted to a nonconforming use with authority to continue pursuant to Section 102-56, may be continued in accordance with the provisions of this section.

(b)

Ordinary repair and maintenance. Normal maintenance and repair of nonconforming structures registered in accordance with Section 102-55 may be performed.

(c)

Enlargements, expansions, and extensions. Lawful nonconforming structures that are used in a manner conforming to the provisions of this Land Development Code and the Comprehensive Plan may be enlarged, expanded, or extended, provided that:

(1)

The improvement does not constitute a substantial improvement;

(2)

A nonconforming use is not located in the nonconforming structure; and

(3)

The nonconformity is not further violated.

(d)

Relocation. A nonconforming structure, other than a historic structure listed on the National Register of Historic Places, the Florida Inventory of Historic Places, and/or designated as historic by the BOCC, shall not be moved unless it thereafter shall conform to the regulations of the land use (zoning) district in which it is relocated.

(e)

Termination, damage or destruction and retrofits.

(1)

Abandonment. Where a nonconforming structure is voluntarily abandoned for 18 consecutive months, then such structure shall be demolished, removed or converted to a conforming structure.

(2)

Damage or destruction.

a.

A nonconforming structure that is damaged or destroyed to the extent of less than 50 percent of the fair market value of such structure may be restored as of right if a building permit for reconstruction is issued within six months of the date of the damage (such damage or destruction may be voluntarily or due to natural phenomena whose effects could not be prevented by the exercise of reasonable care and foresight).

b.

Except as provided in Section 135-5, Chapter 122 in regard to mobile homes, and Section 130-163, any nonconforming structure that is damaged or destroyed so as to require substantial improvement may be repaired or restored only if the structure conforms to the provisions of the land use (zoning) district in which it is located. Fair market value shall be determined by reference to the official tax assessment rolls for that year or by an appraisal by a qualified independent appraiser. The extent of damage or destruction shall be determined by the Building Official, in consultation with the Planning Director, by comparing the estimated cost of repairs or restoration with the fair market value.

c.

Substantial improvement or reconstruction of nonconforming single-family dwelling units shall comply with all applicable setback and open space provisions of this Land Development Code set forth in Chapters 130 and 131 except where strict compliance would result in a reduction in lot coverage as compared to the pre-destruction footprint of the dwelling unit. In such cases, the previously approved open space ratio shall be applied; and the maximum shoreline setback shall be maintained and in no event shall the shoreline setback be less than ten (10) feet from mean high water.

(3)

Elevation retrofits. To further recovery, post disaster and resiliency, as provided in Comprehensive Plan Policy 101.5.34 and Policy 101.9.4, a lawfully-existing residential dwelling unit, not including mobile homes, may be retrofitted to elevate the structure above base flood level to reduce flood damage, pursuant to:

a.

The lawfully-existing dwelling unit structure may maintain its existing setbacks and open space, even if nonconforming, provided the structure is elevated within the original (existing) footprint of the structure.

b.

Setbacks and land use open space requirements are waived to allow necessary improvements to a dwelling unit being retrofitted by elevating the unit to meet or exceed flood levels. The necessary improvements are limited to ingress/egress structures (stairs, ramps, landings, elevators, etc.). The waiver provided shall be the minimum necessary to provide access to the structure that is in compliance with fire code requirements.

c.

Side and rear setback requirements are waived to allow accessory elevated platforms above base flood for equipment (mechanical, plumbing and electrical systems, appliances and components) situated at least two (2) feet from the side yard property line or at least five (5) feet from the rear yard property line.

d.

Maximum possible shoreline setbacks and open space are to be maintained, and in no event shall a required shoreline setback be reduced to less than ten (10) feet from mean high water except to accommodate the lawfully existing footprint of the structure to be elevated.

e.

The improvements shall be constructed to avoid off-site discharge of stormwater from the subject parcel, in accordance with Section 114-3 of the Monroe County Land Development Code.

f.

Development shall maintain compliance to the maximum extent practicable, as determined by the Planning Director.

g.

This policy does not waive any required minimum vegetated setbacks adjacent to wetlands (see Policy 203.1.2 and Policy 204.2.5) and does not authorize any encroachments to a conservation easement.

h.

This policy does not restrict a property owner from proposing other additions or improvements to the elevated dwelling unit, as long as the additions, enlargements, expansions, and extensions do not create a nonconformity or cause a further violation to an existing nonconformity.

i.

New construction or reconstruction of single-family dwelling units shall comply with the setback and open space provisions set forth in Policy 101.5.25, Policy 212.2.4, and in Chapters 118, 130, and 131 of the Monroe County Land Development Code.

(4)

Amortization. Any nonconforming structure may be subject to compulsory termination when it is found detrimental to the conservation of the value of surrounding land and improvements, and therefore is tending to deteriorate or blight the neighborhood. In ordering the compulsory termination of a nonconforming structure, the BOCC will establish a definite and reasonable amortization period during which the nonconforming structure may continue while the investment value decrement resulting from termination is amortized. Determination of the amount to be amortized shall be based on the value and condition of the land and improvements for the nonconforming structure less their value and condition for a conforming structure, and such other reasonable costs as the termination may cause. The rate of amortization shall be in accordance with reasonable economic practice.

(f)

Water-dependent and water-related commercial nonconforming structures. Lawfully established water-dependent and water-related nonresidential structures which are identified as a source of economic sustainability within a Livable CommuniKeys Plan may be permitted to be rebuilt even if 100 percent destroyed provided that they are rebuilt to preexisting use and registered in accordance with Section 102-55. Development shall be brought into compliance to the maximum extent practicable, as determined by the Planning Director.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016; Ord. No. 040-2019, § 1, 10-16-2019; Ord. No. 022-2022, § 2, 10-19-2022)

(a)

A nonconforming accessory use shall not continue after the principal use has terminated.

(b)

A nonconforming accessory structure shall not continue after the principal use or structure is demolished or otherwise eliminated unless the structure is modified to conform to the provisions of the land use (zoning) district in which it is located and is associated with a new principal use.

(c)

Notwithstanding subsections (a) and (b), when a principal structure and/or use is discontinued or removed as a result of damage from a manmade or natural disaster, lawfully established accessory structures associated with the discontinued use may remain with approval from the Planning Director pursuant to Sections 134-26 and 134-27.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016; Ord. No. 009-2019, § 1, 3-21-2019)

(a)

Purpose. The purpose of this article is to provide a means for changing the text of this Land Development Code, which also includes changes to the land use (zoning) district map and overlay district maps. It is also intended to add to the statutory procedures and requirements for changing the future land use map (FLUM) at the transmittal stage. The process for changing the text of the Comprehensive Plan shall follow the process established Chapter 163, Part II, Florida Statutes, and shall require a Concept Meeting as detailed in subsection (d)(3) of this section, and shall provide for community participation as specified in Section 102-159(b). This article is not intended to relieve particular hardships, nor to confer special privileges or rights on any person, nor to permit an adverse change in community character, analyzed in the Technical Document (data and analysis), but only to make necessary adjustments in light of changed conditions or incorrect assumptions or determinations as determined by the findings of the BOCC. In determining whether to grant a requested amendment to the text of this Land Development Code, or land use (zoning) district map, or overlay map, the BOCC shall consider, in addition to the factors set forth in this article, the consistency of the proposed amendment with the provisions and intent of the comprehensive plan and consistency with the principles for guiding development in Section 380.0552, F.S.

(b)

Authority. The BOCC may amend the text of this Land Development Code upon compliance with the provisions of this article. Text amendments may be proposed by the BOCC, the Planning Commission, the Planning Director, a private applicant, or the owner or other person having a contractual interest in property to be affected by a proposed property-specific text amendment. Land use (zoning) district map or FLUM amendments may be proposed by the BOCC, the Planning Commission, the Planning Director or the owner or other person having a contractual interest in property to be affected by a proposed map amendment. The Planning Director shall have the responsibility to establish the format as approved by the BOCC by which applications can be submitted and shall have the authority to process only those which are presented on a complete application. Applications deemed incomplete or insufficient shall be returned within 30 days to the applicant for correction and re-submittal.

(c)

Timing. Applications for map and text amendments shall be accepted at any time. The Planning Director or his or her designee shall review and process the map and text amendment applications as they are received, require community participation pursuant to Section 102-159, and pass them on to the Development Review Committee and the Planning Commission for recommendation and final approval by the BOCC.

(d)

Procedures.

(1)

Text Amendment Proposals by BOCC, Planning Commission, Planning Director, or a private applicant. Private applicants shall be required to file an application with the Planning Director accompanied by a nonrefundable application fee as established from time to time by the BOCC to defray the actual cost of processing the application. Proposals for text amendments shall be transmitted to the Planning and Environmental Resources Department. After receipt, the Planning Director and his or her staff shall review the proposed amendment and present it with a recommendation of approval or denial to the Development Review Committee for review and comment. Staff shall make a recommendation to the Planning Commission.

(2)

Map Amendment Proposals by affected landowners. Any landowner or other person having a contractual interest in property desiring to petition the BOCC for an amendment to the land use (zoning) district map, overlay district map or FLUM shall be required to file an application with the Planning Director accompanied by a nonrefundable application fee as established from time to time by the BOCC to defray the actual cost of processing the application. After receipt, the Planning Director and his or her staff shall review the proposed amendment and present it with a recommendation of approval or denial to the Development Review Committee for review and comment. Staff shall make a recommendation to the Planning Commission.

(3)

Concept Meeting. Private applicants submitting an application for an amendment to the text of the Land Development Code or Comprehensive Plan shall participate in a concept meeting with the Planning and Environmental Resources Department to discuss the proposed amendment. The concept meeting shall be scheduled by department staff once the application is determined to be complete. As part of this concept meeting, planning staff will identify whether or not the proposed text amendment will have a county-wide impact.

(4)

Community Participation. The following types of amendments addressed under this section shall provide for community participation as specified in Section 102-159:

a.

Applicants requesting a Land Use District (Zoning) Map amendment, Land Use District (Zoning) Map Overlay amendment, or Future Land Use Map amendment;

b.

Proposals by the County or a private applicant to amend the text of the Land Development Code or Comprehensive Plan, with a county-wide impact, as determined by the concept meeting in subsection (d)(3), above.

(5)

Public hearing(s). The Planning Commission and the BOCC shall each hold at least one public hearing on a proposed amendment to the text of the comprehensive plan or Land Development Code or to the land use (zoning) district map or overlay district map or FLUM at the transmittal stage. The BOCC shall hold at least one additional public hearing for the adoption of a FLUM and/or text amendment of the comprehensive plan.

a.

Advertised notice. Advertised notice of the public hearings for a proposed amendment to the text of the land development code, the land use (zoning) district map, overlay district map and the transmittal of the FLUM change shall be provided as required by section 110-5 of this Land Development Code.

b.

Mailed notice. Notice of changes to the land use (zoning) district map, overlay district map and FLUM shall be mailed to owners within 600 feet of the affected property 15 days prior to the required hearing before the Planning Commission and 30 days before the required hearing before the BOCC for the land use (zoning) district map amendment and the FLUM at the transmittal stage.

c.

Posting of notice. Posting of notice shall be made in accordance with the requirements of section 110-5 for land use (zoning) district map amendments, overlay district map, FLUM amendments, and property-specific text amendments.

d.

Other notice. Notice of all public hearings shall be posted on the Monroe County Website as soon as is practical. Failure to post notice on the Monroe County Website shall not constitute grounds for the cancellation of any public hearing nor shall it constitute grounds for the cancellation of any action taken by the Planning Commission or the BOCC at such a meeting.

(6)

Action by Planning Commission. The Planning Commission shall review the application, the reports and recommendations of the Planning and Environmental Resources Department, the comments of the Development Review Committee, and the testimony given at the public hearing, and shall submit its recommendations and findings to the BOCC.

(7)

Action by BOCC following public hearing(s).

a.

The BOCC shall consider the reports and recommendation of the Planning Commission, Planning and Environmental Resources Department staff, and the testimony given at the public hearings.

b.

The BOCC may consider the adoption of an ordinance enacting the proposed map and text amendments to this Land Development Code based on one or more of the following factors:

1.

Changed projections (e.g., regarding public service needs) from those on which the existing text or boundary was based;

2.

Changed assumptions (e.g., regarding demographic trends) from those on which the existing text or boundary was based;

3.

Data errors, including errors in mapping, vegetative types and natural features which contributed to the application of the existing text or boundary;

4.

New issues which arose after the application of the existing text or boundary;

5.

Recognition of a need for additional detail or comprehensiveness;

6.

Data updates; or

7.

Consistency with the Comprehensive Plan and the principles for guiding development as defined in Section 380.0552, Florida Statutes.

c.

For text amendments to the Comprehensive Plan and FLUM amendments, the BOCC must also consider the analyses identified in Chapter 163, Florida Statutes and must find that the amendment is consistent with the principles for guiding development as defined in Section 380.0552, Florida Statutes.

d.

In no event shall an amendment be approved which will result in an adverse change in community character to the sub-area which a proposed amendment affects or to any area in accordance with a Livable CommuniKeys master plan pursuant to findings of the BOCC.

(8)

Protest procedure.

a.

A written protest concerning an application for an amendment to the land use (zoning) district map or a FLUM amendment at the transmittal stage may be filed before the BOCC hearing by the owners of no less than 20 percent of the area of the land to be affected. Protests concerning a FLUM amendment may be made only at the transmittal hearing. In the event of a written protest against such amendment by owners of 20 percent of the affected property, where the signatures and protest are found to be true and accurate, the amendment shall not become effective except by the favorable vote of four members of the BOCC. Rounding up of decimals and percentages shall not be permitted.

b.

A written protest concerning an application for an amendment to the land use (zoning) district map or a FLUM amendment at the transmittal stage may be filed by ten percent of the owners of land within 600 feet of the affected property. Protests concerning a FLUM amendment may be made only at the transmittal hearing. In the event of a written protest of ten percent of the owners within 600 feet of the affected property, the amendment shall not become effective except by the favorable vote of four members of the BOCC. In calculating whether a sufficient number of protests have been received to trigger the requirement for a supermajority vote, the number of protests must meet or exceed the ten percent threshold without resorting to rounding up.

c.

Such protests must be on a form approved by the Planning Director and made available by the county, with a statement from each individual owner, under penalties of perjury, with the name, address, parcel real estate number, home address and telephone number of the owner. In the event of ownership by multiple parties, only one owner is required to file a protest. Condominium, cooperatives, or statutory time share program owners may file protests through their associations and shall be counted as one owner and one property in the number of owners to calculate any percentage.

d.

The originals of the written protests must be filed with the clerk of the BOCC no later than the fifth working day before the day of the first county commission meeting at which the public hearing on the FLUM transmittal or land use (zoning) map amendment will be heard. Upon receipt of the protest(s), the clerk shall furnish a copy to the county attorney, the county administrator, and to the applicant requesting the amendment. No further protests will be accepted by the clerk or the BOCC.

e.

The BOCC shall not vote until the signatures, ownership, and protests have been verified by the Planning and Environmental Resources Department and County Attorney using information from the property appraiser and the official records of Monroe County. Every reasonable means shall be used by county staff to resolve the validity of the protest by the time of the public hearing, but if this cannot be accomplished the BOCC shall continue the item. If the time requirements of the Florida Statutes for transmittals cannot be met, the proposed FLUM amendment shall be held over until the next date for transmittal.

f.

The area used as right-of-way for U.S. 1 shall not be included in any calculations for number of owners or percentage of ownership, but shall be included in the distance calculation from the affected property.

g.

Protests shall not be considered unless received as prescribed above. Any owner may withdraw a protest up until the conclusion of the public hearing at which the item will be heard.

(9)

Majority of BOCC. Except as provided in paragraph (d)(6) above, the BOCC may adopt the proposed amendment, or the proposed amendment as modified, by not less than a majority of its total membership.

(e)

Typographical or drafting errors. Amendments to the text to correct typographical or drafting errors may be adopted by the BOCC without posted notice or public hearing at any regular meeting. As long as the county is within an area of critical state concern, notice of such amendments shall be transmitted to the State Land Planning Agency within 30 days.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

(a)

Map amendments. In addition to the public hearings required by Section 102-158, applicants requesting a Land Use District (Zoning) Map, Land Use District (Zoning) Map Overlay District or Future Land Use Map (FLUM) amendment shall provide for public participation through a community meeting.

(1)

Community meeting. The applicant will coordinate with the Planning Director regarding the date, time and location of the proposed community meeting; however, all meetings are to be held on a weekday evening at a location close to the project site, between 45—120 days prior to any of the public hearings required in Section 102-158.

(2)

Posting of notice. The notice shall include the date, time and place of the community meeting, the address of the site and a description of the site, reference to the closest mile marker, and a summary of the proposal to be considered. At least 15 days prior to the community meeting, applicants shall post the property that is the subject of the map amendment with a waterproof signs(s) provided by the Planning and Environmental Resources Department which is so located that the notice shall be easily visible from all public streets and public ways abutting the property. The applicant shall remove the posted notice within ten days after completion of the community meeting.

(3)

Mailing of notice. At least 15 days prior to the community meeting, notice of the community meeting shall be mailed by the county to all owners of real property located within 600 feet of the property that is the subject of the map amendment, including any residents of the parcel proposed for map amendment. A list of such owners, as shown by the latest available records in the Monroe County Property Appraiser Office, shall be provided by the applicant with an application for development approval.

(4)

Publication of notice. At least 15 days in advance of the community meeting, notice of the community meeting shall be provided as follows:

a.

Newspaper publication: Notice of the community meeting shall be published in the non-legal section of a local newspaper of general paid circulation in Monroe County. The newspaper shall be of general interest and readership in the community. The advertisement shall appear in a newspaper that is published five days a week. The advertisement shall be no less than two columns wide by ten inches long in a standard size or tabloid size newspaper and the headline in the advertisement shall be in a type no smaller than 18 point; and

b.

Website and social media: The applicant shall coordinate with the County to assure the meeting is posted to the County's website and social media platforms.

(5)

Noticing and advertising costs. The applicant shall pay the cost of the public notice and advertising for the community meeting and provide proof of proper notice to the Planning Director.

(6)

The community meeting shall be facilitated by a representative from the Monroe County Planning and Environmental Resources Department and the applicant shall be present at the meeting.

(b)

Text amendments to the Land Development Codeand/or the Comprehensive Plan with County-Wide Impact. In addition to any required public hearings, proposals by the County or a private applicant to amend the text of the LDC and/or the Comprehensive Plan, shall provide for community participation through the following:

(1)

Determination of County-Wide Impact. Private applicants submitting an application for an amendment to the text of the Land Development Code and/or the Comprehensive Plan shall participate in a concept meeting with the Planning and Environmental Resources Department, as indicated in Section 102-158(d)(3), to discuss the proposed amendment. The concept meeting shall be scheduled by department staff once the application is determined to be complete. As part of this concept meeting, department staff will identify whether or not the proposed text amendment will have a county-wide impact. For amendments proposed by the County, a concept meeting is not required, and the Planning Director shall determine whether the amendment will have a county-wide impact.

(2)

BOCC Impact Meeting. Private proposals to amend the text of the Land Development Code and/or Comprehensive Plan shall require a public meeting with the Board of County Commissioners ("Impact Meeting") prior to the application proceeding to the DRC for review. The applicant shall coordinate with the Planning Director regarding the date and time of the Impact Meeting; however, all Impact Meetings shall be held in Marathon.

a.

Publication of notice. At least 15 days in advance of the Impact Meeting, notice of the meeting shall be provided as follows:

1.

Newspaper publication: Notice of the Impact Meeting shall be published in the non-legal section of a local newspaper of general paid circulation in Monroe County. The newspaper shall be of general interest and readership in the community. The advertisement shall appear in a newspaper that is published five days a week. The advertisement shall be no less than two columns wide by ten inches long in a standard size or tabloid size newspaper and the headline in the advertisement shall be in a type no smaller than 18 point; and

2.

Website and Social Media: The applicant shall coordinate with the County to assure the Impact Meeting is posted to the County's website and social media platforms.

b.

Noticing and Advertising Costs. The applicant shall pay the cost of the public notice and advertising for the Impact Meeting and provide proof of proper notice to the Planning Director.

c.

During the Impact Meeting, County staff will identify, in writing, the county-wide impacts of the proposed amendment based upon the results of the concept meeting in Section 102-159(b)(1). The Impact Meeting is not to be a public hearing (the BOCC will not vote on the proposal), but a public meeting during which the BOCC may offer their initial opinions and the public may have input on the proposed amendment.

(3)

Community Meeting. Proposals by the County or a private applicant to amend the text of the Land Development Code and/or Comprehensive Plan, with a county-wide impact, shall require a community meeting.

a.

A private applicant will coordinate with the Planning Director regarding the date, time and location of the proposed community meeting; however, all meetings shall be held on a weekday evening, at least three (3) months prior to any of the public hearings required in Section 102-158 or by Section 163.3184, F.S. (for comp plan).

b.

Publication of notice. At least 15 days in advance of the community meeting, notice of the community meeting shall be provided as follows:

1.

Newspaper publication: Notice of the community meeting shall be published in the non-legal section of a local newspaper of general paid circulation in Monroe County. The newspaper shall be of general interest and readership in the community. The advertisement shall appear in a newspaper that is published five days a week. The advertisement shall be no less than two columns wide by ten inches long in a standard size or tabloid size newspaper and the headline in the advertisement shall be in a type no smaller than 18 point; and

2.

Website and Social Media: The applicant shall coordinate with the County to assure the community meeting is posted to the County's website and social media platforms. Failure to post notice on the Monroe County official website shall not constitute grounds for the cancellation of any public meeting.

c.

Noticing and Advertising Costs. The applicant shall pay the cost of the public notice and advertising for the community meeting and provide proof of proper notice to the Planning Director.

d.

The community meeting shall be facilitated by a representative from the Monroe County Planning and Environmental Resources Department and the applicant shall be present at the meeting.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

(a)

When revisions are being considered concerning the Land Development Code or the Comprehensive Plan, or any portions thereof, the County may take legislative action to delay the approval of applications that include the potential revisions' subject matter. The delay shall be for such time as deemed necessary by the BOCC, not to exceed 365 days or until the Land Development Code or Comprehensive Plan change is fully effectuated.

(1)

Upon request of the BOCC, a Resolution shall be brought before the BOCC to direct County staff to process an Ordinance to defer potential approval of the subject applications. If the Resolution is approved by the BOCC, County staff will then draft and present to the BOCC a relevant Ordinance. The Ordinance shall require at least one public hearing and if called for by statute or other Ordinance, two public hearings.

(2)

County staff may accept applications prior to the Ordinance being formally adopted; however, such applications will not be processed for approval until such time as set forth in the relevant Resolution or Ordinance. The adoption of any such Resolution or Ordinance is not to be considered a denial or refusal of an application, but rather a deferral of consideration until such time as set forth in the Resolution and Ordinance.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

It is the purpose and intention of the BOCC to ensure that each and every landowner has a beneficial use of his property in accordance with the requirements of the Fifth and Fourteenth Amendments to the United States Constitution and to provide a procedure whereby landowners who believe they are deprived of all beneficial use may secure relief through an efficient nonjudicial procedure.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

If, after a final decision or action by the county, including available variances, a landowner is of the opinion that the adoption or application of a county Land Development Code or Comprehensive Plan policy has caused a taking of the landowner's property, the procedures of this division shall be used prior to seeking relief from the courts.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

(a)

The purpose of this division is to ensure that the adoption or application of a county Land Development Code or Comprehensive Plan policy does not result in an unconstitutional taking of private property.

(b)

The intent of the BOCC is that this division provide a means to resolve a landowner's claim that a Land Development Code or Comprehensive Plan policy has had an unconstitutional effect on property in a nonjudicial forum. This division is not intended to provide relief related to regulations promulgated by agencies other than the county or to provide relief for claims that are not cognizable in court at the time of application under this division. Further, the procedures of this division are not intended, nor do they create, a judicial cause of action.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

Relief under this division cannot be established until the landowner has received a final decision on development approval applications from the county, including building permit allocation system applications, appeals, administrative relief pursuant to sections 138-27 and 138-54, and other available relief, exceptions, or variances, unless the applicant asserts that a land development regulation or comprehensive plan policy, on its face, meets the standards for relief in section 102-109.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

(a)

Generally. An application for a beneficial use determination may be made to the Planning and Environmental Resources Department by filing an application and an application fee as established by the BOCC.

(b)

Contents of application. The application shall be submitted in a form established by the county and shall include the following:

(1)

Contact information. The name, address, email address and phone number of the landowner and applicant or agent;

(2)

Legal description. A legal description and the real estate number for the property;

(3)

Letter of agency. If a person other than the landowner is requesting relief pursuant to this division, a notarized letter of agency from the landowner authorizing the person to represent them with respect to the application. Except as specifically provided herein, the landowner will be bound by the representations, obligations, and agreements made by the landowner's agent in the course of the beneficial use determination process. The term "applicant" as used in this division refers to the landowner or the landowner's agent, as applicable;

(4)

Date of acquisition, offers to purchase, attempts to sell. Documentation of the date of acquisition, the price incurred to acquire the property, the date and amount of any offers by any person, corporation, governmental entity, or association to acquire the property, and any attempts by the landowner to sell the property;

(5)

Land Development Code or Comprehensive Plan policy. A statement describing the Land Development Code, Comprehensive Plan policy, or other final action of the county, which the applicant believes necessitates relief under this division, including the effective date of the Land Development Code or Comprehensive Plan policy and/or the date of the final action by the county related to the property. The application shall identify the subject Land Development Code or Comprehensive Plan policies of the county by section and number;

(6)

Description of land. A description of the property's physical and environmental features, total acreage, and use presently, at the time of acquisition, and upon the effective date of the Land Development Code or Comprehensive Plan policy or other final action the applicant believes necessitates relief under this division;

(7)

Improvements to land. Evidence of any investments made to improve the property, the date the improvements were made, and the cost of the improvements;

(8)

Description of allowable uses. A description of the type and extent of land uses allowed on the property, from the time the applicant acquired the property until the date of application under this division, including allowable density, permitted and conditional uses, open space ratios, and other factors affecting the property's development potential;

(9)

Requested relief. A statement regarding the form of relief requested by the landowner, pursuant to section 102-110;

(10)

Maps. Maps shall be included in the application, which show the property presently, at the time of acquisition, and upon the effective date of the Land Development Code, Comprehensive Plan policy, or other action of the county the applicant believes necessitates relief under this division. Maps shall indicate the land use (zoning) designation, future land use designation, tier overlay designation, aerial photography, and environmental conditions and habitat on the property at the above times;

(11)

Previous development applications and appeals. A description of all efforts to seek approval to develop the property, including date of application; name of the local, state, or federal permitting agency; nature of approval, denial, or appeal sought; disposition; and the date of disposition;

(12)

Agency approvals. Evidence of whether the applicant has received necessary approvals from governmental agencies other than the county, which are required in order to undertake development of the property, including, as applicable, evidence that approvals from other agencies are not required;

(13)

Signature of landowner and agent. The signature of landowner and agent, attesting to the accuracy of the statements and representations made in the application; and

(14)

Additional materials. Any other appraisals, studies, or evidence supporting the applicant's contention that relief under this division is appropriate, including appraisals related to any alleged diminution in fair market value of the property.

(c)

Standards applicable to landowner and landowner's representative.

(1)

The landowner and the landowner's representative shall exercise due diligence in the filing of the application for relief under this division.

(2)

The signature upon the application by the landowner and the landowner's representative shall constitute a certification that the landowner and landowner's representative have undertaken due diligence in the filing of the application, that to the best of his or her knowledge the application is supported by good grounds under applicable laws, and that the application has been filed in good faith, consistent with the purpose and intent of this division.

(3)

The landowner and the landowner's representative shall have a continuing obligation throughout the proceedings to correct any statement or representation found to have been incorrect when made or which becomes incorrect by virtue of changed circumstances.

(4)

If a claim for relief pursuant to this division is based upon facts the landowner or the landowner's representative knew or should have known were not correct or upon assertions of law that were frivolous, the special magistrate may dismiss the application and may recommend any remedy or penalty to the board provided by law or ordinance.

(d)

Determination of sufficiency. Within 15 calendar days of accepting the application, the Planning Director, or his or her designee, shall determine if the application is complete and includes the materials and information listed in subsections (b)(1)—(13) of this section. The special magistrate may require the landowner or the county to provide additional information in order to make a determination under this division and may conduct a hearing on whether the application should be dismissed for failure to include information necessary to make a recommendation, based on the standards set forth in this division.

(1)

Determined insufficient. If the Planning Director determines the application is not complete, a written notice shall be mailed to the applicant specifying the application's deficiencies. No further action shall be taken on the application until the deficiencies are remedied. If the applicant fails to correct the deficiencies within 30 calendar days of a notice of deficiencies, the application shall be considered withdrawn, and the application fee shall be refunded to the applicant, upon request.

(2)

Determined sufficient. When the application is determined sufficient, the Planning Director shall notify the applicant in writing and, within 60 calendar days, forward the application to a special magistrate to set a hearing date. The Planning Director may forward to the special magistrate additional materials, applications, or decisions related to the application, including recommended forms of relief, consistent with this division.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

(a)

Establishment of date for hearing and notice. The special magistrate shall schedule and hold a hearing on an individual beneficial use determination application within 90 calendar days of receipt of the complete application from the Planning Director.

(b)

Hearing. At the hearing, the landowner or landowner's representative shall present the landowner's case and the Planning Director or his or her representative shall represent the county's case. The special magistrate may accept briefs, evidence, reports, or proposed recommendations from the parties.

(c)

Recommendation of the special magistrate. Within 60 calendar days of the close of the hearing, the special magistrate shall prepare and transmit in writing to the Planning Director and the landowner, or their representatives, a recommendation regarding the application, based on the evidence submitted and the standards set forth in sections 102-109 and 102-110.

(1)

If the special magistrate's recommendation is that relief is not appropriate, the special magistrate's recommendation shall specify the basis for the recommendation.

(2)

If the special magistrate's recommendation is that relief is appropriate, the special magistrate's recommendation shall:

a.

Recommend a form of relief, pursuant to section 102-110; and

b.

Indicate the basis for the recommendation, including, as applicable:

1.

Identification of the county Land Development Code, Comprehensive Plan policy, or other action that resulted in the recommendation for relief; and

2.

The date the Land Development Code, Comprehensive Plan policy, or other final action of the county affected the property so as to necessitate relief.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

Based on the recommendations of the special magistrate, the Planning Director shall prepare the item for consideration by the BOCC. The Planning Director may not disturb or alter the recommendations of the special magistrate. Within 30 calendar days of receipt of the recommendations of the special magistrate, the Planning Director shall forward the special magistrate's recommendation to the BOCC to set a public hearing on the matter. The Planning Director may include with the recommendation a proposed process and schedule for implementing the special magistrate's recommendation.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

(a)

Following receipt of the matter from the Planning Director, the BOCC shall set the matter for a public hearing. The county shall provide advertised notice of the hearing and the applicant shall provide posted notice of the hearing on the subject property according to the noticing standards in Section 110-5. Mailing of notice to surrounding property owners shall not be required. The applicant shall be provided an opportunity to be heard prior to the decision of the BOCC. The recommendation of the special magistrate is not binding on the BOCC. At the hearing, the BOCC, by resolution, shall approve, modify, reverse, or approve with conditions, the recommendations of the special magistrate, based on the standards of sections 102-109 and 102-110. The resolution shall:

(1)

State the date, if any, upon which any resolution granting relief will cease to be in effect;

(2)

State that neither the board's resolution nor any process or evidence associated with this division is an admission of a taking of property;

(3)

Direct county staff to undertake any additional steps necessary to implement the resolution; and

(4)

Address other matters necessary to implement the purpose and intent of this division.

(b)

Upon the filing of an application for a beneficial use determination, the application shall be deemed abandoned or expired if the applicant does not obtain a final decision of the BOCC on the application, pursuant to this section, within three (3) years.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

(a)

Standard. In furtherance of the purpose and intent of this division, and consistent with Policy 101.17.4 of the comprehensive plan, relief under this division may be granted where a court of competent jurisdiction likely would determine that a final action by the county has caused a taking of property and a judicial finding of liability would not be precluded by a cognizable defense, including lack of investment-backed expectations, statutes of limitation, laches, or other preclusions to relief. Whether such liability, at the time of application under this division, is likely to be established by a court should be determined based on applicable statutory and case law at the time an application is considered under this division.

(b)

Burden. The applicant shall have the burden of showing that relief under this division is appropriate.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

(a)

General. If the BOCC determines that relief is appropriate under this division, relief may be granted, as provided in this section and consistent with the comprehensive plan.

(b)

Forms of relief. In order to avoid an unconstitutional result and to provide a landowner with an economically viable use of property pursuant to this division, the special magistrate may recommend and the BOCC may allow for additional uses, density (as a last resort), or relief beyond that allowed by a literal application of the Land Development Code or Comprehensive Plan on the particular property, which may include:

(1)

Redesignation of the property on the land use (zoning) map or future land use map;

(2)

Granting of a permit for development which shall be deducted from the Permit Allocation System. Permits issued pursuant to this section shall be subject to applicable construction deadlines and expiration dates under Chapter 6;

(3)

Transferable development rights (TDRs);

(4)

Eligibility for dedication of the property pursuant to section 138-28(5);

(5)

Government purchase offer of all or a portion of the lots or parcels upon which there is no beneficial use. This alternative shall be the preferred alternative when beneficial use has been deprived by application of Chapter 138. This alternative shall be the preferred alternatives for Tier I, II or III-A (SPA) lands; and/or

(6)

Such other relief as the BOCC may deem appropriate and adequate under Section 102-109 and the Comprehensive Plan.

(c)

Minimum increase. Relief granted pursuant to this division shall be the minimum necessary to comply with section 102-109. The highest, common, or expected use, is not intended as an appropriate remedy, unless expressly required by applicable statute or case law.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

(a)

Purpose. Notwithstanding any other provision of this Land Development Code, an application for a permit may be approved if an applicant has demonstrated development expectations that are vested under the standards of section 102-136.

(b)

Limitation. An application for a determination of vested rights shall be filed within one year of the effective date of the ordinance from which this Land Development Code is derived or the alleged vested right shall be deemed abandoned.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

An applicant for vested rights determination will be afforded a quasi-judicial, evidentiary hearing in front of a special magistrate who will make a proposed determination and a statement of what rights are vested. Interested persons will be afforded the opportunity to appear and introduce evidence and argument for or against the determination during the evidentiary hearing. The special magistrate's proposed determination shall be forwarded to the BOCC for final approval.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

In making the proposed determination, the special magistrate will consider, in furtherance of the guidelines contained in Policy 101.17.1 of the Comprehensive Plan, the following criteria:

(a)

The vested rights determination shall be limited to rights acquired prior to adoption of the Comprehensive Plan or Land Development Code in effect at the time of filing of the vested rights application and shall vest only that development specifically and expressly contemplated by the valid, unexpired official act of the county.

(b)

The applicant shall have the burden of proof to demonstrate that:

(1)

There is a valid, unexpired official act (as enumerated below in subsection (b)(1)a., (b)(1)b., (b)(1)c., or (b)(1)d. of this section) of the county approving the proposed development that occurred prior to the effective date of the Comprehensive Plan or Land Development Code in effect at the time of filing of the vested rights application. To be a valid act, the act must have been in compliance with the land development regulations that existed at the time of approval, and the approval must have been issued by an official or commission properly delegated with the authority to issue the approval. Any one of the following may constitute an official act of the county for purposes of the vested rights determination:

a.

A valid, unexpired building permit issued prior to the effective date of the comprehensive plan or land development regulations in effect at the time of filing of the vested rights application;

b.

One or more valid, unexpired permits or approvals issued by the county, except that mere approval of a land use (zoning) designation or future land use designation is insufficient to establish vested rights without additional permits or approvals for a specific development project, i.e., mere zoning cannot be considered an official act that can form the basis of a vested rights determination;

c.

A subdivision plat recorded in the official records of the county, which fulfills the criteria set forth in F.S. Section 380.05(18), may be an official act except that individual lots within the subdivision must also demonstrate that this applicant acquired a vested right to build on the individual lot by obtaining additional governmental approvals or official acts concerning development on the individual lot prior to adoption of the comprehensive plan and land development regulations in effect at the time of the filing of the vested rights application, and an applicant must still demonstrate compliance with subsections (b)(2), (b)(3) and (b)(4) of this section with respect to development on each individual lot; or

d.

A valid, unexpired vested rights determination approved pursuant to the 1986 Comprehensive Plan and land development regulations, sections 102-134—102-137;

(2)

This individual, particular applicant:

a.

Relied upon the official act in good faith. (For example, the applicant must not have had notice or knowledge of an imminent or pending change in zoning, allowable uses or density, etc. A change is imminent or pending if notice of the change was published or there are active and documented efforts to develop and approve the proposed change at the time the property was purchased or expenses were incurred); and

b.

Had a reliance that was reasonable. (For example, an act of purchasing the property, entering into contracts or incurring additional obligations done after the Comprehensive Plan was pending or became effective does not constitute reasonable reliance);

(3)

This applicant incurred such substantial obligations and expenditures that it would be highly inequitable or unjust to require that the development conform with the Comprehensive Plan and Land Development Code in effect at the time of the filing of the vested rights application. To meet this requirement the applicant must demonstrate that:

a.

Application of the Comprehensive Plan and Land Development Code in effect at the time of the filing of the vested rights application would prevent or prohibit the applicant from completing the proposed development. For example, if the applicant could still complete the proposed development under the Comprehensive Plan and Land Development Code in effect at the time of the filing of the vested rights application without undue hardship by making mere modifications to the development plan, the applicant cannot demonstrate a vested right and must make the modifications required by the comprehensive plan and land development regulations in effect at the time of the filing of the vested rights application; and

b.

Substantial changes of position or expenditures incurred prior to the official act upon which the vested rights claim is based are undertaken at the applicant's own risk and will not be considered in making a vested rights determination.

(4)

Development of this project has commenced and has continued in good faith without substantial interruption.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

(a)

In furtherance of those guidelines listed in Policy 101.17.1 of the Comprehensive Plan, a vested rights determination shall also contain the following:

(1)

Verification that the applicant has met the burden of proof for the items listed in section 102-136;

(2)

A clear statement of what part of the applicant's development is vested (e.g., density, setbacks, open space requirements);

(3)

A clear statement of which Comprehensive Clan goals, policies and/or objectives and which Land Development Code was in effect at the time of the filing of the application, the applicant is vested from;

(4)

A clear statement to the applicant that construction must continue in good faith and meet all construction deadlines contained in Chapter 6 or the vested rights determination will expire and any and all rights acquired under the determination will be forfeited; and

(5)

Notwithstanding Chapter 6, a vested rights final order will expire in five years with no possibility of extension.

(b)

The vested rights determination shall be limited to rights acquired prior to adoption of the Comprehensive Plan and Land Development Code in effect at the time of the filing of the vested rights application, but after adoption of the 1986 Comprehensive Plan (unless a prior, valid and unexpired vested rights determination was obtained under the 1986 Comprehensive Plan or section 102-134 et seq.). The vested rights determination shall vest only that development specifically and expressly contemplated by a valid, unexpired official act of the county.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

(a)

Authority. The Planning Commission shall have the authority to hear and decide appeals from any decision, determination or interpretation by any administrative official with respect to the provisions of this Land Development Code or Comprehensive Plan and the standards and procedures hereinafter set forth, except for appeals from actions by the Historic Preservation Commission and appeals from administrative actions regarding the floodplain management provisions of this Land Development Code. Appeals from actions by the Historic Preservation Commission shall be heard by the Division of Administrative Hearings (DOAH), pursuant to Section 135-9. Appeals from administrative actions regarding the floodplain management provisions of this Land Development Code shall be heard by DOAH, pursuant to Section 122-9.

(b)

Initiation. An appeal may be initiated by an owner, applicant, adjacent property owner, any aggrieved or adversely affected person, as defined by F.S. § 163.3215(2), or any resident or real property owner from any order, decision, determination or interpretation by any administrative official with respect to the provisions of this Land Development Code or with respect to the provisions of the Comprehensive Plan.

(c)

Procedures. A notice of appeal in the form prescribed by the Planning Director must be filed with the County Administrator and with the office or department rendering the decision, determination or interpretation within 30 calendar days of the decision. Failure to file such appeal shall constitute a waiver of any rights under this Land Development Code and Comprehensive Plan to appeal any decision, interpretation or determination made by an administrative official. Such notice shall be accompanied by the names and addresses of the owner, applicant, property owner, and adjacent property owners. The filing of such notice of appeal will require the administrative official whose decision is appealed to forward to the Planning Commission any and all records concerning the subject matter of the appeal and to send written notice of the appeal to the owner, applicant, property owner, and adjacent property owners, if different from the person filing the appeal, within 15 calendar days of receipt of the notice of appeal.

(d)

Effect of filing an appeal. The filing of a notice of appeal shall stay all permit activity and any proceedings in furtherance of the action appealed unless the administrative official rendering such decision, determination or interpretation certifies in writing to the Planning Commission and the applicant that a stay poses an imminent peril to life or property, in which case the appeal shall not stay further permit activity and any proceedings. The Planning Commission shall review such certification and grant or deny a stay of the proceedings.

(e)

Action of the Planning Commission. The Planning Commission shall consider the appeal at a duly advertised public hearing following receipt of all records concerning the subject matter of the appeal. Any person entitled to initiate an appeal may, along with county staff and counsel, have an opportunity to address the Planning Commission at that hearing and all parties to the appeal shall have the opportunity to present evidence and create a record before the Planning Commission. Any appeals before the hearing officer shall be based upon and restricted to the record.

(f)

Appeal to hearing officer. Any person participating as an appellant or appellee at the hearing described in subsection (e) of this section may request an appeal of the decision of the Planning Commission, under Chapter 102, Article VI, Division 2 by filing the notice required by that article within 30 days after the date of the written decision of the Planning Commission.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016; Ord. No. 015-2023, § 2, 6-21-2023)

(a)

Purpose. The purpose of this section is to establish authority, procedures, and standards for the granting of variances and waivers from certain requirements of this Land Development Code, as specified in this section.

(b)

Authority and scope of authority. The Planning Director is authorized to grant the following variances and waivers according to the standards of subsections (f), (g) and (h) of this section:

(1)

For variances pursuant to subsection (f) of this section, reduction of front or rear yard non-shoreline setback requirements, as provided in chapter 131, by up to ten (10) feet; and reduction of non-shoreline side yard setback requirements, as provided in chapter 131, by up to five (5) feet;

(2)

For front yard setback waivers pursuant to subsection (g) of this section, reduction of the front yard non-shoreline setback requirements in Chapter 131 by up to ten (10) feet;

(3)

For special accessibility setback variances pursuant to subsection (h) of this section, reduction in the front, rear, or side yard non-shoreline setback requirements in chapter 131, by up to the amount necessary to facilitate the accessibility-related development;

(4)

Reduction in the off-street parking requirements in chapter 114, article III, by no more than twenty (20) percent;

(5)

Reduction in the bufferyard width requirements for class C, D, E, and F district boundaries, major streets, and scenic corridors in chapter 114, article V by no more than ten (10) percent;

(6)

Reduction in the total area of landscaping required for off-street parking and loading in chapter 114, article III, by no more than ten (10) percent; and

(7)

Reduction in the loading/unloading space dimensional requirements in chapter 114, article III.

(c)

Application. An application for a variance or waiver under this section shall be submitted to the Planning Director on a form approved by the Planning Director accompanied by a nonrefundable application fee as established from time to time by the BOCC to defray the actual cost of processing the application.

(d)

Procedures. The Planning Director shall normally complete his review of the entire application and render a proposed decision within 30 days of receipt of a complete application.

(e)

Decision. The Planning Director's decision shall be in writing. A variance or special accessibility waiver shall only be granted if all of the standards in subsection (f) or (g) of this section, respectively, are met.

(f)

Variances. The Planning Director has the authority to grant a variance as described in (b)(1), (4), (5), (6), and (7) of this section, with or without conditions, if and only if the applicant demonstrates that all of the following standards are met:

(1)

The applicant shall demonstrate a showing of good and sufficient cause for the requested variance;

(2)

Failure to grant the variance would result in exceptional hardship to the applicant;

(3)

Granting the variance will not result in increased public expenses, create a threat to public health and safety, create a public nuisance, or cause fraud or victimization of the public;

(4)

Property has unique or peculiar circumstances;

(5)

Granting the variance will not give the applicant any special privilege denied to another property owner of the other properties in the immediate neighborhood in terms of the provisions of this chapter or established development patterns;

(6)

Granting the variance is not based on disabilities, handicaps or health of the applicant or members of his family;

(7)

Granting the variance is not based on the domestic difficulties of the applicant or his family; and

(8)

The variance is the minimum necessary to provide relief to the applicant.

(g)

Front yard setback waivers. The Planning Director has the authority to grant a waiver reducing a front yard non-shoreline setback requirement by up to ten (10) feet, with or without conditions, if and only if the applicant demonstrates that all of the following standards are met:

(1)

The existing setback average, as measured pursuant to the definition of "setbacks" in section 101-1, along the road that is subject to the front yard setback waiver application is less than the land use (zoning) district standard, as established in section 131-1;

(2)

The waiver will not result in a setback that is less than the existing front yard setback to the further most projection of the main building that is closest to the front lot line on a contiguous lot on either side of the subject property; and

(3)

At least one contiguous property along the road that is subject to the front yard setback waiver application shall be developed at the time of application. In the event that all contiguous parcels on either side of the subject property along the road that is subject to the front yard setback waiver application are vacant, the property shall not be eligible for a front yard setback waiver.

(h)

Special Accessibility Setback Variances. The Planning Director has the authority to grant a variance reducing a front, rear or side yard non-shoreline setback requirement for an elevator, lift or ramp specifically required to allow access of a disabled household member to the subject dwelling unit, or to allow accessibility upgrades to a lawfully existing nonresidential use/structure, up to the amount necessary to reasonably facilitate the accessibility-related development as determined by the Planning Director upon review of the application, if and only if the applicant demonstrates that the following standards are met:

(1)

The applicant shall demonstrate a showing of good and sufficient cause;

(2)

Failure to grant the variance would result in exceptional hardship to the applicant;

(3)

Granting the variance will not result in increased public expenses, create a threat to public health and safety, create a public nuisance, or cause fraud or victimization of the public;

(4)

The variance is the minimum necessary to provide relief to the applicant.

(i)

Public notification of proposed approval. After determining that an application for a variance or a waiver complies with the requirements of this section, the Planning Director shall provide written notice of proposed approval and require posting as follows:

(1)

The Planning Director shall provide written notice by regular mail to owners of real property located within 600 feet of the property that is the subject of the proposed variance or waiver.

(2)

The applicant shall post the property of the proposed variance or waiver with a waterproof sign(s) prepared and provided by the Planning and Environmental Resources Department, which shall be posted in a manner to be easily visible from all public roads abutting the property. The property shall remain posted for no less than 30 consecutive calendar days beginning within five working days of the date that the application is deemed to be in compliance by the Planning Director.

(3)

The notice and posting shall provide a brief description of the proposed variance or waiver and indicate where the public may examine the application. The cost of providing notice and posting shall be borne by the applicant.

(j)

Decision by the Planning Director. After 30 calendar days of proper posting, review of all public responses to the variance or waiver application and upon a finding that the proposed variance or waiver and application have or have not complied with the requirements and standards of this section, the Planning Director shall issue a written variance decision.

(k)

Public hearing by the Planning Commission. If requested in writing by the applicant, or an adversely affected owner or resident of real property located in the county during the required 30 calendar days of posting, a public hearing shall be scheduled on the application for a variance or waiver after the 30th day of posting. All costs of the public hearing shall be the responsibility of the applicant for the variance or waiver. The public hearing shall be conducted in accordance with section 110-5 and provisions of section 102-187.

(l)

Development under approved variances and waivers. The granting of a setback variance or waiver by the Planning Director is based on the design and placement of the structure(s) as shown on the approved site plans and does not reduce or waive any other required setbacks for any future structures or additions. Work not specified or alterations to the site plan may not be carried out without additional approval(s).

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

(a)

Purpose. The purpose of this section is to establish authority, procedures, and standards for the granting of variances from certain provisions of this Land Development Code, as specified in this section.

(b)

Authority and scope of authority. The Planning Commission is authorized to grant the following variances according to the standards of subsection (d) of this section:

(1)

Front, side, and rear yard non-shoreline setback requirements in chapter 131;

(2)

Bufferyard requirements in chapter 114, article V;

(3)

Off-street parking and loading space requirements in chapter 114, article III;

(4)

Landscaping requirements in chapter 114, article IV;

(5)

Access standards in chapter 114, article VII; and

(6)

Fence height requirements in chapter 114, article I.

(c)

Application and procedures. An application for a variance shall be submitted to the Planning Director. The Planning Director shall review the entire application and all public responses thereto and prepare a staff report with recommendations for the Planning Commission. The variance application shall be heard at a regularly scheduled meeting of the Planning Commission. Notice, posting and hearing requirements shall be in accordance with section 110-5.

(d)

Standards. The Planning Commission has the authority to grant a variance to the standards described in (b)(1) through (6), with or without conditions, if and only if the applicant demonstrates that all of the following standards are met:

(1)

The applicant shall demonstrate a showing of good and sufficient cause;

(2)

Failure to grant the variance would result in exceptional hardship to the applicant;

(3)

Granting the variance will not result in increased public expenses, create a threat to public health and safety, create a public nuisance, or cause fraud or victimization of the public;

(4)

Property has unique or peculiar circumstances;

(5)

Granting the variance will not give the applicant any special privilege denied to another property owner in the immediate vicinity;

(6)

Granting the variance is not based on disabilities, handicaps or health of the applicant or members of his family;

(7)

Granting the variance is not based on the domestic difficulties of the applicant or his family; and

(8)

The variance is the minimum necessary to provide relief to the applicant.

(f)

Decision by the Planning Commission. The Planning Commission's decision shall be in writing by Resolution.

(g)

Development under approved Planning Commission variances. The granting of a setback variance by the Planning Commission is based on the design and placement of the structure(s) as shown on the approved site plans and does not reduce or waive any other required setbacks for any future structures or additions. Work not specified or alterations to the site plan may not be carried out without additional approval(s).

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

Hearing officers shall review by appeal Planning Commission action when authorized by the county Land Development Code.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

The jurisdiction of the hearing officer under this article shall be invoked by filing a copy of the notice of the appeal and the filing fee with the planning commission coordinator. The BOCC shall establish a reasonable filing fee. The form of the notice shall be prescribed by the Planning Director.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

Within 30 days of filing the notice, the planning commission coordinator shall prepare the record prescribed in section 102-216 and serve copies of the index of the record on all parties. Within 30 days of the filing of the notice, the planning commission coordinator shall transmit the record to the hearing officer and copies to all parties. The BOCC may establish reasonable fees for copies furnished the parties.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

(a)

The record in a case governed by this article shall consist only of:

(1)

All applications, memoranda, or data submitted to the Planning Commission;

(2)

Evidence received or considered by the Planning Commission;

(3)

Questions and proffers of proof, objections, and rulings thereon, presented to the Planning Commission;

(4)

The transcript of the hearing before the Planning Commission transcribed by a certified court reporter at the expense of the appellant and furnished to the planning commission coordinator; and

(5)

The order of the Planning Commission.

(b)

The planning commission coordinator shall prepare the record in the following fashion:

(1)

Upon receipt of the transcript from the court reporter, each page shall be consecutively numbered. The transcript shall be securely bound in consecutively numbered volumes not to exceed 200 pages each.

(2)

The remainder of the record, including any supplements, shall be consecutively numbered and securely bound in volumes not to exceed 200 pages.

(3)

The planning commission coordinator shall prepare a complete index to the record.

(c)

The burden to ensure that the record is prepared and transmitted to the hearing officer and the parties shall be on the appellant.

(d)

If there is an error or omission in the record, the parties by stipulation, the Planning Commission, or the hearing officer may correct the record. If the hearing officer finds the record incomplete, he or she shall direct a party to supply the omitted parts of the record. No case shall be decided because the record is incomplete until an opportunity to supplement the record has been given.

(e)

The record shall be returned to the planning commission coordinator after the disposition of the case by the hearing officer.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

(a)

The appellant's initial brief shall be filed with the hearing officer and served on the parties within 50 days of the filing of the notice. The appellee's answer brief shall be filed and served within 20 days of service of the initial brief. The appellant's reply brief, if any, shall be filed and served within ten days of service of the answer brief.

(b)

The contents of the initial brief shall include:

(1)

A table of contents listing the issues presented for review, with reference to pages;

(2)

A table of citations with cases listed alphabetically, statutes and other authorities and the pages of the brief on which each citation appears;

(3)

A statement of the case and of the facts, which shall include the nature of the case, the course of the proceedings, and the disposition in the lower tribunal. References to the appropriate pages of the record or transcript shall be made;

(4)

A summary of argument, suitably paragraphed, condensing succinctly, accurately, and clearly the argument actually made in the body of the brief;

(5)

Argument with regard to each issue; and

(6)

A conclusion, of not more than one page, setting forth the precise relief sought.

(c)

The contents of the answer brief shall be prepared in the same manner as the initial brief provided the statement of the case and facts shall be omitted unless there are areas of disagreement, which should be clearly specified.

(d)

Contents of the reply brief shall contain argument in response and rebuttal to argument presented in the answer brief.

(e)

The initial and answer briefs shall not exceed 50 pages in length. Reply briefs shall not exceed 15 pages in length. The table of contents and the citation of authorities shall be excluded from the computation.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

(a)

Within 60 days of the filing of the briefs and the record, the hearing officer shall schedule the case for oral argument.

(b)

Within 45 days of oral argument, the hearing officer shall render an order that may affirm, reverse or modify the order of the Planning Commission. The hearing officer's order may reject or modify any conclusion of law or interpretation of the county Land Development Code or Comprehensive Plan in the Planning Commission's order, whether stated in the order or necessarily implicit in the Planning Commission's determination, but he may not reject or modify any findings of fact unless he first determines from a review of the complete record, and states with particularity in his order, that the findings of fact were not based upon competent substantial evidence or that the proceeding before the Planning Commission on which the findings were based did not comply with the essential requirements of law.

(c)

The hearing officer's final order shall be the final administrative action of the county.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

Upon the application of any party, the hearing officer may grant relief under this article or impose sanctions for the failure of a party to comply with this article, including the striking of untimely, irrelevant or scandalous portions of a brief or the record or the dismissal of an appeal, as the interests of justice may require. An application for an order seeking sanctions for failure of a party to comply with this article or for other relief under this article shall be made by filing a motion stating the sanction or relief sought and the basis therefor with the hearing officer and serving a copy on the opposing party. A motion for an extension of time shall, and other motions may, contain a certificate from the movant or his counsel that he has consulted the opposing parties or, if they have counsel, opposing counsel and that he is authorized to represent that they have no objection or that they will promptly file an objection. A party may file and serve one response to a motion within ten days of service of the motion. The service and filing of a motion shall not toll the time by which any act must be performed under this article unless so ordered by the hearing officer. Within 15 days of the filing of the motion or the response as appropriate, the hearing officer shall grant any sanction or relief as may be appropriate but shall not dismiss any appeal without affording the appellant at least one opportunity to correct the offending error.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)

The filing of an appeal under this article shall operate as an automatic stay on the effectiveness of any development order to be reviewed unless the stay is dissolved by the hearing officer upon the motion of a party showing that the interests of justice require such dissolution.

(Ord. No. 006-2016, § 1(Exh. 1), 4-13-2016)