An appeal may be taken as follows:

12.1.1. Zoning regulation appeals provisions.

1.

Board of adjustment: appeals: how taken.

a.

Appeals; hearings; notice. Appeals to the board of adjustment concerning any order, requirement, decision, or determination made by the City Manager, or their designee may be filed by any aggrieved person, or by any officer, agency, or bureau of the city affected by such action. Appeals must be submitted in writing to the City Manager, or their designee within 30 days of the issuance of the decision and must specify the grounds for the appeal.

Additionally, appeals to the Board of Adjustment for a special exception or variance under these Land Development Regulations may be initiated by the property owner of the affected parcel, their authorized agent, or any officer, agency, or bureau of the city, by filing a written notice of appeal with the City Manager, or their designee.

Before rendering a decision on any appeal, including special exceptions and variances, the board of adjustment shall hold a public hearing. The board shall set a reasonable time, within 30 days for the hearing and provide public notice two weeks prior to the hearing, notice letters to surrounding parcel owners within 1,000 feet, signs posted on the subject property in a prominent, publicly visible location to inform the public of the appeal along with direct notice to the parties involved.

At the public hearing, any interested party may appear in person, through an agent, or by attorney. Appellants may be required to cover reasonable costs associated with the appeal, as determined by the City Commission through the establishment of applicable fees. All persons are advised that if they decide to appeal any decision made at the above referenced public hearing, they will need a record of the proceedings, and that, for such purpose, they may need to ensure that a verbatim record of the proceeding is made, which record includes the testimony and evidence upon which the appeal is to be based.

b.

Stay of proceedings. Proceedings shall not be stayed other than by a restraining order which may be granted by the board of adjustment or by a court of record on application, on notice to the City Manager, or their designee from whom the appeal is taken and on due cause shown.

c.

Decisions. The concurring vote of a majority of the members of the board of adjustment who are present and voting shall be necessary to reverse any order, requirement, decision, or determination of the City Manager, or their designee or to decide in favor of the appellant in respect to any matter upon which it is required to pass under the terms of article 4 of these Land Development Regulations or to effect any variance of article 4 of these Land Development Regulations.

12.1.2. Flood damage prevention regulation appeals provisions.

1.

Appeals procedure. The board of adjustment shall hear and decide appeals when it is alleged there is an error in any requirement, decision, or determination made by the City Manager, or their designee in the enforcement or administration of article 8 of these Land Development Regulations.

Any such appeal shall be in written form and filed within 30 days of the decision of the City Manager, or their designee, and filed with the City Manager, or their designee. Such appeal shall state the location of the property, the date of the notice of violations, and the number of such notice. The appellant must state the modification requested, the reasons for this, and the hardship or conditions upon which the appeal is made.

Standing to appeal shall be limited to those property owners affected by the decision of the City Manager, or their designee.

2.

Decision. In passing upon such appeal, the board of adjustment shall consider all technical evaluations, all relevant factors, and standards specified in article 8 of these Land Development Regulations.

Upon consideration of the factors of article 8 herein the board of adjustment may attach such conditions to the granting of modifications to the land development regulation administrator's determination as it deems necessary to further the purposes of article 8 of these Land Development Regulations.

12.1.3. Minimum housing regulation appeals provisions.

1.

Appeals procedure. Any person receiving written notice from the City Manager, or their designee of deficiencies in his or her property under article 9 of these Land Development Regulations may within 30 days following the date of such notice enter an appeal to the board of adjustment and file the same in writing with the secretary to the special magistrate.

Such appeal shall state the location of the property, the date of the notice of violations, and the number of such notice. The appellant must state the modification requested, the reasons for the modifications, and the hardship or conditions upon which the appeal is made.

2.

Grounds for appeal. Where the literal application of the requirements of article 9 of these Land Development Regulations would appear to cause undue hardship on an owner or tenant, or when it is claimed that the true intent and meaning of article 9 of these Land Development Regulations have been misconstrued or wrongly interpreted, the owner of such building or structure, or their authorized agent, may appeal the decision of the code enforcement officer to the special magistrate.

3.

Hearing; notice. Upon the filing of an appeal, the special magistrate shall as soon as practicable fix a date, time and location for the hearing of the appeal in accordance with article 13 of these Land Development Regulations. Written notice of the time and location of the hearing shall be mailed to each appellant at the address on the appeal by certified mail, return receipt requested.

12.1.4. Hazardous building and lands regulations appeal provisions.

1.

Form of appeal. Any person served notice in accordance with the provisions of article 10 may appeal such action of the code enforcement officer under this article to the special magistrate. Such appeal must be filed in writing with the secretary to the special magistrate within 30 days from the date of service and must contain at least the following information:

(a)

Identification of the building or structure, and/or lands concerned by street address or legal description.

(b)

A statement identifying the legal interest of each appellant.

(c)

A statement identifying the specific order or section being appealed.

(d)

A statement detailing the issues on which the appellant desires to be heard.

(e)

The legal signatures of all appellants and their official mailing addresses.

2.

Hearing; notice. Upon the filing of an appeal, the special magistrate shall as soon as practicable fix a date, time and location for the hearing of the appeal in accordance with article 13 of these Land Development Regulations. Written notice of the time and location of the hearing shall be mailed to each appellant at the address on the appeal by certified mail, return receipt requested.

3.

Failure to appear. Failure of any person to appear at the hearing set forth in accordance with the provisions of this article shall constitute a waiver of his or her right to an appeal on the notice.

4.

Scope of appeal. The hearing shall offer the appellant reasonable opportunity to be heard on only those specific matters or issues raised by the appellant in his or her appeal.

The appellant may appear at the hearing in person or through his or her attorney or other designated representative.

12.1.5. Historic preservation regulation appeals provisions. Within 15 days of the agency decision any person may appeal to the board of adjustment, in writing and with justification, any decision of the agency on an application for a certificate of appropriateness. The board of adjustment at their next, feasibly noticed meeting (as per 12.1.1 above) shall approve, approve with modifications or disapprove the application.

12.1.6. Appeals general. For appeal procedures for all articles of these Land Development Regulations not specifically described above, the following shall apply:

1.

Appeals procedure. An appeal from any final order or decision of the City Manager, or their designee may be taken to the board of adjustment by any person aggrieved. An appeal is taken by filing with the City Manager, or their designee a written notice of appeal specifying the reason for the appeal. A notice of appeal shall be considered filed with the City Manager, or their designee when delivered to the office of the City Manager, or their designee. The date and time of filing shall be entered on the notice by city staff.

2.

Time and process of appeal. An appeal must be taken within 30 days after the date of the decision or order appealed from. Before rendering a decision on any appeal, the board of adjustment shall hold a public hearing. The Board shall set a reasonable time, within 30 days for the hearing and provide public notice two weeks prior to the hearing, notice letters to surrounding parcel owners within 1,000 feet, signs posted on the subject property in a prominent, publicly visible location to inform the public of the appeal along with direct notice to the parties involved.

3.

Authority of board. The board of adjustment may reverse or affirm (wholly or partly) or may modify the order, requirement or decision or determination appealed from and shall make any order, requirement, decision or determination that in its opinion ought to be made in the case before it. To this end, the board of adjustment shall have all the powers of the officer from whom the appeal is taken.

(Ord. No. 9-04, § 6, 7-12-2004; Ord. No. 2017-03, § 2, 1-23-2017; Ord. No. 2025-13 meeting, § 1, 6-23-2025)

12.2.1. Board of adjustment: Powers and duties: Special exceptions. The board of adjustment shall have the power to hear and decide upon appeals in specific cases such special exceptions as the board of adjustment is specifically authorized to pass on under the terms of article 4 of these Land Development Regulations; to decide such questions as are involved in the determination of when special exceptions should be granted; and to grant special exceptions with appropriate conditions and safeguards or to deny special exceptions when they would not promote the public health, safety, morals, order, comfort, convenience, appearance, prosperity, or the general welfare.

Appropriate conditions and safeguards may include, but are not limited to, reasonable time limits within which the action for which special exception is requested shall be begun or completed, or both. Violation of such conditions and safeguards, when made a part of the terms under which the special exception is granted, shall be deemed a violation of these Land Development Regulations and punishable as provided in these Land Development Regulations.

If the board of adjustment shall deny a special exception, it shall state fully in its record its reasons for doing so. Such reasons shall take into account the factors stated in this article, or such of them as may be applicable to the action of denial, and the particular regulations relating to the specific special exception requested, if any.

The procedure for taking an appeal for a special exception shall be as set forth in this article, and in addition, a special exception shall not be granted by the board of adjustment unless and until:

1.

Written petition. A written petition for special exception is submitted by the applicant indicating the section of article 4 of these Land Development Regulations under which the special exception is sought and stating the grounds on which it is requested, with particular reference to the types of findings which the board of adjustment must make under this article below. The petition shall include material necessary to demonstrate that the granting of the special exception would promote the public health, safety, morals, order, comfort, convenience, appearance, prosperity, or the general welfare. Such material shall include, but is not limited to the following: (1) site and development plan at an appropriate scale showing proposed placement of structures on the property; provisions for ingress and egress, off-street parking and off-street loading areas, and refuse and service areas; and required yards and other open spaces; (2) plans showing proposed locations for utility hook-up; (3) plans for screening and buffering with reference as to type, dimensions, and character; (4) proposed landscaping; and signs and lighting, including type, dimensions, and character. Where these Land Development Regulations place additional regulations on specific special exceptions, the petition shall demonstrate that such requirements are met.

2.

Planning and zoning board report. It is the intent of these Land Development Regulations that all proposed special exceptions shall be heard in the first instance by the planning and zoning board and that the planning and zoning board's report and recommendations in such matters be advisory only to the board of adjustment. Within a reasonable time after a proposed special exception is officially received by the planning and zoning board, the planning and zoning board shall submit its report and recommendations concerning the proposed special exception to the board of adjustment. Before making a recommendation concerning the proposed special exception, the planning and zoning board shall hold a public hearing to consider the proposed special exception. The planning and zoning board shall fix a reasonable time for the hearing, give public notice thereof, as well as due notice to the parties involved. At the hearing, any party may appear in person or by agent.

Where the designated members of the planning and zoning board perform the functions of the board of adjustment, the provisions of this section shall not apply.

3.

Findings. Before any special exception shall be granted, the board of adjustment shall make a specific finding that it is empowered under article 4 of these Land Development Regulations to grant the special exception described in the petition, and that the granting of the special exception would promote the public health, safety, morals, order, comfort, convenience, appearance, prosperity, or the general welfare. Before any special exception shall be granted, the board of adjustment shall further make a determination that the specific rules governing the individual special exception, if any, have been met by the petitioner and that, further, satisfactory provision and arrangement has been made concerning the following matters, where applicable:

a.

Traffic. Ingress and egress to property and proposed structures thereon with particular reference to automotive and pedestrian safety and convenience, traffic flow and control, and access in case of fire or catastrophe.

b.

Parking, loading. Off-street parking and loading areas, where required, with particular attention to the items in (a) above and the economic, noise, glare, or odor effects of the special exception on adjoining properties and properties generally in the district.

c.

Refuse and service areas. Refuse and service areas, with particular reference to the items in (a) and (b) above.

d.

Utilities. Utilities, with reference to locations, availability, and compatibility.

e.

Screening. Screening and buffering with reference to type, dimensions, and character.

f.

Signs. Signs, if any, and proposed exterior lighting with reference to glare, traffic safety, economic effects, and compatibility and harmony with properties in the district.

g.

Open space. Required yards and other open space.

h.

Other property. Considerations relating to general compatibility with adjacent properties and other property in the district including but not limited to:

(1)

Comprehensive plan. Conformity with the Comprehensive Plan and the effects upon the Comprehensive Plan;

(2)

Land use. The existing land use pattern;

(3)

Public facilities. The impact of the proposed use upon pattern and the load on public facilities such as schools, utilities, and streets;

(4)

Changed conditions. Changed or changing conditions justify recommended action on the proposed special exception;

(5)

Living conditions. The impact of the proposed use upon living conditions in the neighborhood;

(6)

Public safety. The impact of the proposed use upon traffic congestion or other public safety matter;

(7)

Drainage. The impact of the proposed use upon drainage;

(8)

Light, air. The impact of the proposed use upon light and air to adjacent areas;

(9)

Property values. The impact of the proposed use upon property values in the adjacent area;

(10)

Adjacent development. The impact of the proposed use upon the improvement or development of adjacent property in accordance with existing regulations;

(11)

Neighborhood needs. The impact of the proposed use with regard to the scale of needs of the neighborhood or the city;

(12)

Special privilege. The granting of special privilege to an individual owner as contrasted with the needs of the overall public welfare;

(13)

Intensive agriculture, landfills, etc. In areas where intensive agriculture uses and solid waste facilities (including landfills) are permitted by special exception, the following additional conditions shall apply:

(a)

Monitoring, testing. Installation of groundwater monitoring wells and the establishment of a testing program for intensive agriculture and solid waste facilities, including landfill facilities.

(b)

Landfills. Installation of a minimum of a 100 mil liner and leachate collection system over a nine-inch clay base for landfill facilities.

(c)

Review of site plan. Request review of the site plan be made by the water management district.

(d)

Time period. Limit to a time period of five years, provided that additional extensions of five years may be granted by the board of adjustment after a conducting a public hearing.

(e)

Documentation of waste, etc. Documentation to identify and certify the waste origin, waste description and responsible parties for solid waste facilities, including landfill facilities.

(f)

Inspection. Establish an inspection schedule for inspections to be conducted by appropriate regional, state or federal officials or representatives of the city and a schedule and required content of compliance reports to be prepared by the applicant for solid waste facilities, including landfill facilities.

4.

Expiration of a special exception. Every special exception approved by the board of adjustment shall become invalid unless:

(a)

Permits; approvals. All required permits and approvals have been obtained from the applicable city, county, regional, state and federal agencies within six months after approval of the special exception by the board of adjustment. In no case shall any work be commenced (including clearing of land and site preparation), or special exception use be located and become operational until such required permits have been obtained; and

(b)

Timely action. The work authorized by such special exception is commenced in the form of actual construction of the special exception use within six months after its issuance, or if the work or operation authorized by such special exception is suspended or abandoned for a period of six months after the time the work is commenced; provided that one or more extensions of time, for periods not exceeding 90 days each, may be allowed where the applicant can demonstrate that the need for the extension is owing to conditions which are not the result of the actions of the applicant. Such extensions shall be required to be approved by the board of adjustment after a public hearing, as provided within these Land Development Regulations.

5.

Limitations on subsequent written petition for a special exception. No written petition by an owner of real property for a special exception for a particular parcel of property, or part thereof, shall be filed with the land development regulation administrator until the expiration of 12 calendar months from the date of denial of a written petition for a special exception for such property, or part thereof, unless the board of adjustment specifically waives said waiting period based upon a consideration of the following factors:

a.

New petition. The new written petition constitutes a proposed special exception different from the one proposed in the denied written petition.

b.

Hardship. Failure to waive said 12-month waiting period constitutes a hardship to the applicant resulting from mistake, inadvertence, or newly discovered matters of consideration.

(Ord. No. 9-04, § 6, 7-12-2004)

For appeals from any decision of the code enforcement officer or the building official of the City of Newberry, the following shall apply:

1.

Appeal procedures. An appeal from any final order or decision of the code enforcement officer or building official may be taken to the special magistrate or code enforcement board by any person aggrieved. An appeal is taken by filing with the secretary to the special magistrate or code enforcement board a written notice of appeal specifying the grounds therefor. A notice of appeal shall be considered filed with the secretary to the special magistrate or code enforcement board when delivered to the office of the secretary to the special magistrate or code enforcement board. The date and time of filing shall be entered on the notice by city staff.

2.

Time of appeal. An appeal must be taken within 30 days after the date of the decision or order appealed from.

3.

Papers transmitted. Whenever an appeal is filed, the code enforcement officer or building official, as the case may be, shall forthwith transmit to the special magistrate or code enforcement board all the papers constituting the record relating to the action appealed from.

4.

Effect of appeal. An appeal stays all actions by the code enforcement officer or building official seeking enforcement of or compliance with the order or decision appealed from, unless the code enforcement officer or building official certifies to the special magistrate or code enforcement board that (because of the facts stated in the certificate) a stay would, in the code enforcement officer's or building official's opinion, cause imminent peril to life or property. In that case, proceedings shall not be stayed except by order of the special magistrate or code enforcement board or a court of record on application, on notice to the code enforcement officer or building official, as the case may be, from whom the appeal is taken and on due cause shown.

5.

Authority of board. The special magistrate or code enforcement board may reverse or affirm (wholly or partly) or may modify the order, requirement or decision or determination appealed from and shall make any order, requirement, decision or determination that in its opinion ought to be made in the case before it. To this end, the special magistrate or code enforcement board shall have all the powers of the officer from whom the appeal is taken.

6.

Appeal to court. An aggrieved party, including the city commission, may appeal a final administrative order of the special magistrate or code enforcement board to the circuit court. Such an appeal shall not be a hearing de novo, but shall be limited to appellate review of the record created before the special magistrate or code enforcement board. An appeal shall be filed within 30 days of the execution of the order to be appealed.

(Ord. No. 9-04, § 6, 7-12-2004; Ord. No. 2017-03, § 2, 1-23-2017)

Editor's note— Ord. No. 2017-03, § 2, adopted Jan. 23, 2017, changed the title of § 12.3 from "Appeals to the code enforcement board" to read as herein set out.

The specific provisions of this section apply to the following portions of these Land Development Regulations. Not all portions of these Land Development Regulations provide for variances to the requirements contained therein. This is due to the inappropriateness of granting variances to such specific regulations as, but not limited to, the use of land, hazardous building requirements and historic site designation.

12.4.1. Variances to zoning regulations.

1.

Authority. The board of adjustment shall have power to authorize upon appeal such variance from the terms of these Land Development Regulations as will not be contrary to the public interest and where, owing to conditions peculiar to the property and not the result of actions of the applicant, a literal enforcement of these Land Development Regulations would result in unnecessary and undue hardship.

2.

Conditions. In granting any variance to the provisions of article 4 of these Land Development Regulations, the board of adjustment may prescribe appropriate conditions and safeguards in conformity with such regulations, including but not limited to, reasonable time limits within which the action for which variance is requested shall be begun or completed, or both. Violation of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation of these Land Development Regulations.

3.

Prohibited uses. Under no circumstance shall the board of adjustment grant a variance to permit a use not permitted under the terms of these Land Development Regulations in the zoning district involved, or any use expressly or by implication prohibited by the terms of these Land Development Regulations in the zoning district.

4.

Hardship. Development regulations would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms of these Land Development Regulations and will not be contrary to the public interest and where, owing to conditions peculiar to the property and not the result of actions of the applicant, a literal enforcement of these Land Development Regulations would result in unnecessary and undue hardship.

5.

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

6.

Public interest. The grant of the variance will not be contrary to the public interest and where, owing to conditions peculiar to the property and not the result of actions of the applicant, a literal enforcement of these Land Development Regulations would result in unnecessary and undue hardship.

7.

Limitations on subsequent written petition for a variance. No written petition by an owner of real property for a variance for a particular parcel of property, or part thereof, shall be filed with the land development regulation administrator until the expiration of 12 calendar months from the date of denial of a written petition for a variance for such property, or part thereof, unless the board of adjustment specially waives said waiting period based upon a consideration of the following factors:

a.

New petition. The new written petition constitutes a proposed variance different from the one proposed in the denied written petition.

b.

Hardship. Failure to waive said 12-month waiting period constitutes a hardship to the applicant resulting from mistake, inadvertence, or newly discovered matters of consideration.

12.4.2. Variances to the subdivision regulations. Where the city commission finds that compliance with the design standards for lot and street layout of the provisions of article 5 of these Land Development Regulations would result in unnecessary and undue hardship on the land, owing to conditions of topography, access, location, shape, size, drainage, or other physical features of the site peculiar to the property and not the result of actions of the applicant, it may grant a variance from the subdivision regulations found herein where such variance shall not be contrary to the public interest. No such variance shall be granted if it would have the effect of nullifying the intent and purpose of these Land Development Regulations. No such variance shall be granted if the special conditions and circumstances are the result of actions of the applicant. Furthermore, no variance shall be granted from the required improvements as specified within article 5 of these Land Development Regulations.

12.4.2.1. Conditions. In granting variances and/or modifications, the city commission may require such conditions as will, in the judgment of the city commission secure substantially the objectives of the standards for requirements so varied or modified.

12.4.2.2. Procedures. Variances may be granted upon written request of the subdivider setting forth the reasons for each variance. A petition for any such variance shall be submitted in writing by the subdivider to the land development regulation administrator for the consideration of the planning and zoning board, in conjunction with the submission of the preliminary plat.

The planning and zoning board shall handle such matter in a public session as part of a previously prepared agenda. The planning and zoning board shall submit its report and recommendation to the city commission.

Within a reasonable time after receiving the planning and zoning board report and recommendation, the city commission shall by majority vote either approve, approve with conditions, or deny the request. Such matters shall be handled in a public session as part of a previously prepared agenda.

12.4.3. Variances to flood damage prevention regulations. The city commission may permit modifications in the minimum standards of design under the following conditions:

1.

Hardship. Because of unique topographic or other conditions of the land involved, and not the result of the actions of the applicant, the literal application of the provisions of article 8 of these Land Development Regulations would impose unnecessary and undue hardship;

2.

Conditions. Conditions are attached to [the] development permit approval that assure compliance with the requirements of article 8 of these Land Development Regulations insofar as practical and the modification granted is the minimum modification necessary to make possible a reasonable use of the land;

3.

Historic structures. Variances may be issued for the reconstruction, rehabilitation or restoration of structures listed on the National Register of Historic Places or the state inventory of historic places without regard to the procedures set forth in article 8 of these Land Development Regulations except that the variance shall be the minimum necessary so as not to destroy the historic character and design of the building, and the land development regulation administrator shall report such variance to the federal emergency management agency upon request;

4.

Factors. In passing upon such variance applications, the city commission shall consider all technical evaluations, all relevant factors, all standards specified within article 8 of these Land Development Regulations, and:

a.

Movement of materials. The danger that materials may be swept onto other land to the injury of others;

b.

Floods, erosion. The danger to life and property due to flooding or erosion damage;

c.

Flood damage to owner. The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner;

d.

Services. The importance of the services provided by the proposed facility to the community;

e.

Waterfront. The necessity of the facility to a waterfront location, in the case of a functionally dependent facility;

f.

Alternative locations. The availability of alternative locations, not subject to flooding or erosion damage, for the proposed use;

g.

Compatibility. The compatibility of the proposed use with existing and anticipated development;

h.

Plan; flood program. The relationship of the proposed use to the Comprehensive Plan and floodplain management program for the city;

i.

Access by vehicles. The safety of access to the property in times of flood for ordinary and emergency vehicles;

j.

Effect of floodwaters, etc. The expected heights, velocity, duration, rate of rise and sediment transport of the floodwaters and the effects of wave action, if applicable, expected at the site; and

k.

Governmental costs. The costs of providing governmental services during and after flood conditions including maintenance and repair of public utilities and facilities such as sewer, gas, electrical, and water systems, and streets and bridges;

5.

Purposes observed. The purposes and intent of these Land Development Regulations are observed;

6.

Increase in hazard. There is no substantial increase in flood hazard or flood damage potential, if certified by a professional engineer registered in the State of Florida;

7.

Notification. Upon granting the variance, the land development regulation administrator shall provide written notification specifying the difference between the base flood elevation and the elevation to which the structure is constructed. In addition, such notice shall state that the cost of insurance will be commensurate with the increased risk resulting from the reduced lowest floor elevation; and

8.

Records; report. The land development regulation administrator shall maintain the records of all variance actions and report any variances to the Federal Emergency Management Agency upon request.

(Ord. No. 9-04, § 6, 7-12-2004)