(a)

The town council shall have the power to hold public hearings to authorize variances as will not be contrary to the public interest when, owing to special conditions, a literal enforcement of the land development regulations would result in unnecessary and undue hardship. Prohibited from approval are variance applications which, if granted, would:

(1)

Permit the establishment or expansion of a use in a zone or district in which such use is not permitted by these land development regulations, or any use expressly or by implication prohibited by the terms of these land development regulations for said district.

(2)

Permit the establishment or expansion of a conditional use in any zoning district without the approval required in the conditional use regulations, and including specific land use criteria.

(3)

Result in any increase in density above that permitted in the applicable zoning district regulations.

(4)

Modify any definitions contained within these land development regulations.

(Ord. No. 92-1, § 1(17.01), 1-14-1992; Ord. No. 2023-04, § 2(Exh. A), 1-4-2023)

Editor's note— Ord. No. 2023-04, § 2(Exh. A), adopted Jan. 4, 2023, amended § 86-36 and in doing so changed the title of said section from "Variance procedures generally" to "Variances authorized," as set out herein.

(a)

Format; fee; public hearing; notice; publication. All applications to the town council for a variance shall be in writing on the prescribed form and filed with the town manager with the appropriate fee as adopted by the town council by resolution. The town manager, upon finding the application complete and receipt of the fee, shall forward the application to the town clerk, who shall schedule such application for public hearing. Due notice shall be made by publication in a daily newspaper published in the county, at least ten days prior to the date of the hearing, excluding the date of publication and the date of the hearing. The published notice shall set forth the property involved and the change desired.

(b)

Minimum specified information required. Applications which do not contain the specified information shall not be accepted for filing.

(Ord. No. 92-1, § 1(17.02), 1-14-1992; Ord. No. 2023-04, § 2(Exh. A), 1-4-2023)

(a)

In order to authorize any variance, the town council must find all of the following:

(1)

Special conditions and circumstances exist which are peculiar to the land, structure or building involved and which are not applicable to other lands, structures or buildings in the same zoning district.

(2)

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

(3)

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

(4)

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

(5)

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

(6)

In granting any variance, the town council may prescribe appropriate conditions and safeguards in conformity with this chapter. 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 this chapter.

(7)

The town council may prescribe a reasonable time limit within which the action for which the variance is required shall commence or be completed, or both.

(8)

Under no circumstances, except as permitted in this section, shall the town council grant a variance to permit a use not generally permitted in the zoning district involved or any use expressly or by implication prohibited by the terms of this chapter in the zoning district on or by the comprehensive plan. Nonconforming use of neighboring lands, structures or buildings in the same zoning district and no permitted use of lands, structures or buildings in other zoning districts shall be considered grounds for authorization of a variance.

(b)

The town council must, in addition to other findings and requirements in this chapter, find that the proposed variance will not:

(1)

Constitute any change in the districts shown on the zoning map or land use designation on a comprehensive plan map;

(2)

Impair the adequate supply of light or air to adjacent property;

(3)

Unreasonably increase the congestion in public streets;

(4)

Increase the danger of fire or panic;

(5)

Imperil the public safety.

(Ord. No. 92-1, § 1(17.03), 1-14-1992; Ord. No. 2023-04, § 2(Exh. A), 1-4-2023)

Editor's note— Ord. No. 2023-04, § 2(Exh. A), adopted Jan. 4, 2023, amended § 86-38 and in doing so changed the title of said section from "Conditions required" to "Findings required," as set out herein.

(a)

When an existing structure has inadvertently been constructed encroaching into a required setback by a distance of less than one foot, an application shall be made in writing on a prescribed form to be submitted to the town manager. The mayor, after review by the town manager, may administratively grant the variance. The application fee for a minor setback variance, adopted by the town council by resolution, shall be payable prior to consideration for approval by the mayor.

(b)

If the mayor does not grant the variance, the matter shall be scheduled for action by the town council, following proper notice of a public hearing pursuant to section 86-37(a). The variance shall still be considered a minor setback variance.

(Ord. No. 92-1, § 1(17.04), 1-14-1992; Ord. No. 2023-04, § 2(Exh. A), 1-4-2023)

(a)

When a variance is granted it shall be effective only until the structure to which it applies is demolished or destructed, by natural or human forces, such that its value is less than ten percent of the published certified improvement value by the Indian River County Property Appraiser for the year in which such demolition or destruction occurred. If conditions still require a variance to be obtained for a new replacement structure, then the owner shall submit a variance application. which will be processed and reviewed by the town as a new request for a variance.

(b)

A variance shall not be effective until all fees have been paid by the applicant.

(Ord. No. 2023-04, § 2(Exh. A), 1-4-2023)

Editor's note— Ord. No. 2023-04, § 2(Exh. A), adopted Jan. 4, 2023, repealed the former § 86-40 and enacted a new § 86-40 as set out herein. The former § 86-40 pertained to general considerations and derived from Ord. No. 92-1, § 1(17.05), adopted Jan. 14, 1992.