(a)

The director of planning, zoning and building is given the duty, power and authorization to enforce this chapter. He or she shall oversee the examination of all applications for permits, issue permits for the construction, alteration, enlargement and occupancy of all uses which are in accordance with requirements of this chapter. The building official shall record and file all applications for permits with accompanying plans and documents and shall make such reports to the planning and zoning commission and/or town council as may be required.

(b)

The town council shall have the power to waive zoning provisions in this chapter regulating the use of public rights-of-way to allow town sponsored events provided that the waiver is consistent with the town's comprehensive plan, and further, that there is a favorable vote to grant the waiver by four members of the town council at a regularly scheduled town council meeting.

(c)

Building permits for a variance from the requirements of this chapter and for such special exception uses as may be enumerated in this chapter shall be issued only upon written order of the town council.

(Ord. No. 2-74, § 9.10, 3-26-74; Ord. No. 1-04, § 40, 3-9-04; Ord. No. 23-10, § 1, 9-15-10; Ord. No. 26-10, § 2, 12-15-10)

Editor's note— Ord. No. 26-10, § 2, adopted December 15, 2010, changed the title of section 134-36 from "Powers of planning, zoning and building director and town council and town council order for issuance of building permits for variances and special exceptions" to "Powers of director of planning, zoning and building; town council and town council order for issuance of building permits for variances and special exceptions." The historical notation has been preserved for reference purposes.

Any officer or employee charged with the enforcement of this chapter, acting for the town in the discharge of his duties, shall not thereby render himself liable personally, and he is relieved from all personal liability for any damage that may accrue to persons or property as a result of any act required or permitted in the discharge of his duties. Any suit brought against any officer or employee because of such act performed by him in the enforcement of any section of this chapter shall be defended by the town until final termination of the proceedings.

(Ord. No. 2-74, § 9.50, 3-26-74)

Upon filing an application requesting a rezoning, special exception use approval, a request for a zoning variance, an appeal, or any other application related to this chapter, the applicant shall deposit with the office of planning, zoning and building the application fee as identified in the Town of Palm Beach Master Fee Schedule as adopted by resolution.

The fees identified in the Master Fee Schedule do not include additional fees owed by the applicant for all costs associated with the use of a consultant or legal representation for analysis, study and report of any application determined by the director of planning, zoning and building or designee to require such review.

(Ord. No. 2-74, § 9.40, 3-26-74; Ord. No. 3-77, § 15, 3-29-77; Ord. No. 7-82, § 7(a), 3-31-82; Ord. No. 1-84, § 7, 3-1-84; Ord. No. 1-86, § 5(b), (c), 2-10-86; Ord. No. 1-88, § 5, 2-8-88; Ord. No. 1-94, § 5(a), 2-7-94; Ord. No. 1-97, § 11, 2-17-97; Ord. No. 1-03, § 13, 3-11-03; Ord. No. 4-08, § 3, 4-7-08; Ord. No. 5-09, § 33, 4-15-09; Ord. No. 3-2012, § 2, 4-11-12; Ord. No. 25-2015, § 2, 11-12-15; Ord. No. 04-2018, § 2, 4-11-18; Ord. No. 13-2018, § 1, 8-15-18)

Editor's note— Ord. No. 25-2015 § 8, adopted November 12, 2015 provided that the amendment to section 134-38 contained in § 2 of said ordinance shall sunset on December 13, 2017, whereupon section 134-38 as it existed prior to adoption of said ordinance shall remain in full force and effect.

The town council shall hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of this chapter.

(Ord. No. 2-74, § 10.11, 3-26-74)

In exercising its powers, the town council may, upon appeal, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination made by an administrative official in the enforcement of this chapter and may make any necessary order, requirement, decision or determination, and to that end shall have all the powers of the officer from whom the appeal is taken. The concurring vote by three-fifths of all the members of the town council shall be necessary to reverse any order, requirement, decision or determination of any such administrative official or to decide in favor of the applicant on any matter upon which the town council is required to pass under this chapter. In the event of a tie vote, the mayor shall cast the deciding vote, which shall constitute the three fifth's requirement of the town council stated herein.

(Ord. No. 2-74, § 10.20, 3-26-74; Ord. No. 1-03, § 22, 3-11-03)

Appeals to the town council may be taken by any person aggrieved or by any officer, board or bureau of the town affected by any decision of an administrative official under any section of this chapter.

(Ord. No. 2-74, § 10.30, 3-26-74; Ord. No. 5-78, § 7, 3-31-78; Ord. No. 7-82, § 8(a), 3-31-82)

Under this chapter, an appeal to the town council stays all work on the premises which is in furtherance of the action appealed from, unless the official from whom the appeal was taken shall certify to the town council that, because of facts stated in the certificate, a stay would cause imminent peril to life and property, in which case, proceedings or work shall not be stayed except by a restraining order which may be granted by the town council or by a court of competent jurisdiction on application, on notice to the officer from whom the appeal is taken, and on due cause shown of imminent peril to life and property.

(Ord. No. 2-74, § 10.31, 3-26-74; Ord. No. 7-82, § 8(b), 3-31-82)

Any person appealing any decision of an administrative official made under this chapter shall make such appeal within 30 days after rendition of the written order, requirement, decision, or determination that is being appealed, or the right to appeal shall be barred. Such appeal shall be filed in writing or electronically to the director of planning zoning and building for consideration by the town council. The filing shall include a recorded disk or the documents which contain all supporting facts, and data and appropriate exhibits, plans, documents and other materials to adequately depict and support the appeal. Upon receipt of the appeal, the following procedures shall be followed:

(1)

The director of planning, zoning and building shall examine such appeal and make a recommendation thereon, and shall forward such recommendation to town council, together with all documents, plans, and/or other materials that constitute the record of the action that is being appealed.

(2)

All appeals will be heard at regular meetings of the town council unless otherwise ordered by the town council and in accordance with sections 134-141, 134-142, 134-201 and 134-226.

(3)

Postponement requests for deferred action on any appeal will be granted for one month only or the next succeeding regular town council meeting, if that should occur on a different date, except for good cause shown.

(4)

When an appeal is deferred or postponed because the town council determines that additional professional advice is necessary, the expense of obtaining such additional professional advice shall be borne by the appellant. The person to render or give such additional professional advice shall be selected by mutual agreement of the town and appellant.

(Ord. No. 2-74, § 10.32, 3-26-74; Ord. No. 3-76, § 5, 3-23-76; Ord. No. 3-77, § 16, 3-29-77; Ord. No. 5-78, § 8, 3-31-78; Ord. No. 7-82, § 8(c), 3-31-82; Ord. No. 26-10, § 3, 12-15-10; Ord. No. 04-2018, § 3, 4-11-18)

All town council zoning applications, and landmark commission and architectural commission applications shall include a signed and sealed survey with all pertinent information including the location of historic/specimen trees. In addition to the survey, a detailed written explanation of how said trees shall be protected by barricading shall accompany said survey.

(Ord. No. 1-99, § 3, 4-5-99)

To ensure compliance with this chapter, no person shall erect, alter or convert any structure or building or part thereof or alter the use of any land until a building permit has been issued by the building official.

(Ord. No. 2-74, § 9.21, 3-26-74)

All building permit applications shall be accompanied by two sets of plans, drawn to the requirements contained in the building code of the town. In addition, all building permit applications shall include a signed and sealed survey with all pertinent information including the location of historic/specimen trees. In addition to the survey, a detailed written explanation of how said trees shall be protected by barricading shall accompany said survey.

(Ord. No. 2-74, § 9.22, 3-26-74; Ord. No. 1-99, § 4, 4-5-99)

(a)

It shall be the duty of the building official to issue a building permit, provided he is satisfied that the structure, building, signs, parking areas, and the proposed use conform with all requirements of this chapter and that all other reviews and actions, if any, called for in this chapter have been complied with and all necessary approvals secured therefor.

(b)

Every building permit, after issuance, shall be kept conspicuously on the premises affected and shall be protected from the weather whenever construction work is being performed on the premises. No owner, contractor, workman or other person shall perform any building operation of any kind unless a building permit covering such operation has been displayed as required by this chapter.

(c)

No owner, contractor, workman or other person shall perform building operations of any kind after notification of the revocation of the building permit.

(Ord. No. 2-74, § 9.23, 3-26-74)

(a)

When the building official is not satisfied that the applicant's proposed development will meet the requirements of this chapter, he shall refuse to issue a building permit, and the applicant may appeal to the town council for a reversal of the official's decision.

(b)

When zoning is in progress, no building permit shall be issued by the building official that is in contravention of proposed amendments to this chapter.

(Ord. No. 2-74, § 9.24, 3-26-74)

(a)

If it shall appear, at any time, to the building official that the application for a building permit or any accompanying plan is in any respect false or misleading or that work is being done upon the premises differing materially from that called for in the application for a building permit filed with him under existing laws or ordinances, he may forthwith revoke the building permit, whereupon it shall be the duty of the person holding the building permit to surrender it and all copies thereof to the building official.

(b)

After the building permit has been revoked, the building official may, in his discretion, before issuing the new building permit, require the applicant to file an indemnity bond in favor of the town with sufficient surety conditioned for compliance with this chapter and all laws and ordinances in force and in a sum sufficient to cover the cost of removing the building or structure if it does not so comply.

(Ord. No. 2-74, § 9.25, 3-26-74)

(a)

It shall be unlawful to use or permit the use of any building or premises thereon created or erected, changed or converted, wholly or partly, in its use or structure until a certificate of occupancy to the effect that the building or premises or part thereof and the proposed use thereof conform to this chapter shall have been issued by the building official.

(b)

Under the rules and regulations of the town, a temporary certificate of occupancy for a part of a building may be issued by the building official.

(Ord. No. 2-74, § 9.30, 3-26-74)

(a)

Applications for special exceptions and/or variances to the provisions of any of the regulations contained in this chapter shall be made by the fee simple title owner. The fee simple title owner may authorize a designee, agent or representative by power of attorney filed with the building official.

(b)

When an application for special exception or variance is filed in which extraordinary professional advice and/or consultation is required, as determined by the director of planning, zoning and building, such as but not limited to architectural, engineering and legal services, the expense of such professional advice shall be borne by the applicant.

(Ord. No. 2-74, § 10.40, 3-26-74; Ord. No. 7-82, § 8(e), 3-31-82; Ord. No. 1-84, § 8(b), 3-1-84; Ord. No. 1-94, § 6, 2-7-94; Ord. No. 26-10, § 4, 12-15-10)

(1)

Application. All applications for development review, being variances, special exception, and site plan review, shall be filed with the director of planning, zoning and building by the property owner or a designee, agent, or representative who is authorized to file an application by power of attorney, which must be filed with the director of planning, zoning and building. Applications shall be completed and submitted per the application instructions and shall include all items identified in the application checklist, which can be amended by town staff from time to time. All applications shall include the application fee as set forth in the town fee schedule.

(2)

Determination of sufficiency. The director of planning, zoning and building, or their designee, shall review the application and required documents and determine whether it is competent and complete. If the director, or their designee, determines that the application is not competent or complete, the director of planning, zoning and building, or their designee, shall notify the applicant as to the nature of the deficiency. In this case, no other action shall be taken on the application until the deficiency is remedied. If the director, or their designee, determines that the application is competent and complete, the department will process the application.

(3)

Schedule of meetings and deadlines. The director of planning, zoning and building shall produce each year a schedule of public meetings and deadlines for all development review applications, which can be amended from time to time. The director shall place the schedule of meetings and deadlines on the town website.

(4)

Notice of public hearings. Public hearings for all development review projects, which includes the architectural review commission major projects, landmarks preservation commission certificates of appropriateness, and town council special exceptions, variances, and site plan review, shall be noticed in accordance with the following provisions:

(a)

Advertisement. At least 30 days prior to the public hearing date, a description of the project or request, the date, start time of the meeting and location of the hearing shall be noticed in a newspaper of general circulation. The notice will be prepared and placed in the newspaper by town staff.

(b)

Mail Notice. At least 30 days prior to the public hearing date, the applicant shall mail a notice containing a description of the request, the date, start time of the meeting and location of the hearing, to the owners of record of property lying within 300 feet of the property subject to the application. Applicants shall submit all information and certifications necessary to meet this requirement, as determined by the department and identified in the application instructions.

If a variance is being requested that exceeds the maximum density or the maximum off-street parking requirements allowed in the zoning district, the notification distance shall increase to 1,000 feet. A density variance is not allowed which is inconsistent with the maximum density allowed in the town's comprehensive plan.

If a special exception application is being requested for a service station, restaurant, lounge/bar, nightclub, private social, swimming, tennis or yacht club; or any other use deemed by the director of planning, zoning and building to be an intensification of use on a property, the notification distance shall increase to 750 feet. For the purpose of this section of the Code, intensification of use shall include, but not be limited to, increased tenant square footage, increased seating, increased off-street parking demand, and increased hours of operation of a special exception use.

(c)

Posting. At least 30 days prior to the public hearing, the town will post a copy of the hearing notice within a conspicuous place in Town Hall.

(Ord. No. 08-2021, § 1(Exh. A), 6-9-21)

Editor's note— (Ord. No. 08-2021, § 1(Exh. A), adopted June 9, 2021, repealed the former 134-172, and enacted a new 134-172 as set out herein. The former 134-172 pertained to hearing procedure and derived from Ord. No. 2-74, § 10.41, 3-26-74; Ord. No. 7-82, § 8(e), 3-31-82; Ord. No. 1-88, § 6, 2-8-88; Ord. No. 1-89, § 5(a), 2-6-89; Ord. No. 1-90, § 5(e), (f), 2-5-90; Ord. No. 1-97, § 12, 2-17-97; Ord. No. 1-99, § 5, 4-5-99; Ord. No. 1-02, § 13, 3-12-02; Ord. No. 5-09, § 27, 4-15-09; Ord. No. 5-2011, § 1, 3-9-11; Ord. No. 7-2014, § 2, 5-14-14; Ord. No. 11-2018, § 2, 7-11-18.

(1)

An initial deferral request received by the town more than seven days prior to scheduled town council hearing date may be granted for one month only or the next succeeding regular town council meeting, if that should occur on a different date. Any deferred action request received seven days or less from the scheduled meeting date shall be made in person at the town council meeting at the time the action item appears on the agenda. The applicant must explain or justify the request, which the town council may approve or deny. A second request for deferral shall be made in person at the town council meeting at the time the item appears on the agenda. The applicant must explain or justify the request, which the town council may approve or deny. A third request for deferral shall be denied unless the applicant can demonstrate to the town council that a compelling reason exists. Any deferral which is required due to a case being deferred by the architectural commission or landmark preservation commission shall be an exception to the regulation above. In no case shall a deferral exceed six months.

(2)

An application request seeking substantially the same relief cannot be accepted for consideration after it has been denied by the town council until after 12 months have elapsed from the date of denial.

(3)

The work or use authorized under an approved variance or special exception application must be commenced within 36 months from the date of the town council approval thereof, and if not so commenced the special exception or variance shall be null and void. Commencement shall be considered at the issuance of a building permit for the work related to the application or a business tax receipt if no building permit is required. In addition, all authorized work under the building permit for said approved special exception or variance must be completed within the timeframe set forth in Chapter 18 of this Code or said special exception or variance shall expire.

(4)

A request for a time extension from any of the requirements in subsection (3) may be granted or denied by the town council for just cause. Said time extension request shall be submitted in writing to the planning, zoning and building department at least one month prior to the expiration date or said special exception or variance approval shall expire.

(5)

Should a question arise as to compliance with the conditions as outlined by the town council actions, a clarification hearing before the town council may be called at the request of the director of the planning, zoning and building department, or by the applicant, and placed upon the next available agenda.

(Ord. No. 08-2021, § 1(Exh. A), 6-9-21)

Editor's note— (Ord. No. 08-2021, § 1(Exh. A), adopted June 9, 2021, repealed the former 134-173, and enacted a new 134-173 as set out herein. The former 134-173 pertained to judicial remedy by circuit court and derived from Ord. No. 2-74, § 10.50, 3-26-74; Ord. No. 7-82, § 8(f), 3-31-82.

Any person aggrieved by any decision of the town council made pursuant to this chapter, on appeal within 30 days from the rendition of such decision, may appeal to the circuit court for the 15 ^th judicial circuit for a writ of certiorari to review such decision of the town council.

(Ord. No. 08-2021, § 1(Exh. A), 6-9-21)

(a)

The town council may authorize upon appeal such variance from the terms of this chapter as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of this chapter will result in unnecessary and undue hardship. In order to authorize any variance from the terms of this chapter, the town council must and shall find 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)

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

(3)

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 this same zoning district.

(4)

Literal interpretation 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.

(5)

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

(6)

For granting of a variance to sections 134-387 or 134-390 through 134-392, pertaining to the regulation of nonconforming uses, the following additional findings shall be made pertaining to the nonconforming use for which the variance is requested:

a.

It is the continuance of a unique hotel or residential use that has, for at least 15 years proven compatible with the surrounding uses; and

b.

Neither rezoning to a district which would allow the use, nor inclusion of the subject use as a permitted or special exception use in the district would act to achieve the preservation of the subject use without opening the possibility of the incursion of uses incompatible with the immediately surrounding area and, further, such variance shall:

1.

Be granted only for the continuation of the same hotel or residential use; and

2.

Require the applicant to submit a declaration of use limiting the utilization of the property for which the variance was granted to the same use as that existing at the time the variance was granted.

(7)

The grant 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. In granting any variance, the town council may prescribe appropriate conditions and safeguards in conformity with this chapter. Upon granting a variance the town council may require the landowner to provide a declaration of use agreement which shall be recorded in the public records to ensure continuing compliance with town council imposed conditions of such grants. 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.

(b)

The town council may prescribe a reasonable time limit within which the action for which the variance is required shall begin or be completed or both. Under no circumstances, except as permitted in subsection (a) of this section, shall the town council grant a variance to permit a use not generally or by special exception permitted in the zoning district involved or any use expressly or by implication prohibited by the terms of this chapter in the zoning district. No 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 the authorization of a variance.

(Ord. No. 2-74, § 10.13, 3-26-74; Ord. No. 1-84, § 8(a), 3-1-84; Ord. No. 1-91, § 6(a), 4-23-91; Ord. No. 1-98, § 15, 2-9-98)

(a)

The town council shall hear and decide special exceptions, decide such questions as are involved in determining if and when special exceptions should be granted, and grant special exceptions with appropriate conditions and safeguards or deny special exceptions when not in harmony with the purpose and intent of this chapter.

(b)

In granting any special exceptions, the town council shall find that such grant will not adversely affect the public interest. In granting any special exception, the town council, in addition to the standards enumerated in this subdivision, may prescribe appropriate conditions and safeguards in conformity with this chapter. Upon granting a special exception the town council may require the landowner to provide a declaration of use agreement which shall be recorded in the public records to ensure continuing compliance with town council imposed conditions of such grants. 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 this chapter. The town council may prescribe a reasonable time limit within which the action for which the special exception is required shall begin or be completed or both.

(Ord. No. 2-74, § 10.12, 3-26-74; Ord. No. 1-84, § 8(a), 3-1-84; Ord. No. 1-91, § 6(a), 4-23-91)

Special exception uses and their related accessory uses or any expansion, enlargement, or modification of an existing special exception use or any physical expansion of an existing special use or facility shall be permitted only upon authorization by the town council, provided that such uses shall be found by the town council to comply with the requirements in this subdivision and other applicable requirements as set forth in this chapter. All special exception uses require site plan review in accordance with article III of this chapter. Additional standards applicable to planned unit developments are contained in article V of this chapter.

(Ord. No. 2-74, § 6.40, 3-26-74; Ord. No. 3-77, § 11, 3-29-77; Ord. No. 5-78, § 12, 3-31-78; Ord. No. 7-79, § 12, 3-30-79; Ord. No. 4-80, § 6, 3-31-80; Ord. No. 1-85, §§ 3(b), 4(d), (e), 2-11-85; Ord. No. 1-90, § 4(d), 2-5-90; Ord. No. 1-91, § 4(c), (d), 4-23-91)

If an authorized or existing special exception use is discontinued for any period of time with the intention on the part of the owner to abandon such special exception use or if the use is discontinued for a period of two years without the intention of the owner to abandon, such shall be an abandonment thereof, and the special exception use shall thereby be immediately terminated and may not thereafter be revived except upon new application and approval by the town council.

(Ord. No. 2-74, § 6.40(n), 3-26-74; Ord. No. 3-77, § 11, 3-29-77; Ord. No. 5-78, § 12, 3-31-78; Ord. No. 7-79, § 12, 3-30-79; Ord. No. 4-80, § 6, 3-31-80; Ord. No. 1-85, §§ 3(b), 4(d), (e), 2-11-85; Ord. No. 1-90, § 4(d), 2-5-90; Ord. No. 1-91, § 4(c), (d), 4-23-91)

The requirements for granting a special exception use under this chapter are as follows:

(1)

The use is a permitted special exception use as set forth in article VI of this chapter.

(2)

The use is so designed, located and proposed to be operated that the public health, safety, welfare and morals will be protected.

(3)

The use will not cause substantial injury to the value of other property in the neighborhood where it is to be located.

(4)

The use will be compatible with adjoining development and the intended purpose of the district in which it is to be located.

(5)

The use will comply with yard, other open space, and any special requirements set out in article VI for the particular use involved.

(6)

The use will comply with all elements of the comprehensive plan.

(7)

The use not result in substantial economic, noise, glare, or odor impacts on adjoining properties and properties generally in the district.

(8)

Adequate ingress and egress to property and proposed structures thereon and off-street parking and loading areas will be provided where required, with particular reference to automotive and pedestrian safety and convenience, traffic flow and control, and access in case of fire or catastrophe.

(9)

Signs, if any, and proposed exterior lighting with reference to glare, traffic safety, and economic impact shall be compatible and in harmony with properties in the district.

(10)

Location, availability and compatibility of utility service for the use shall be satisfactory to ensure health and safety.

(11)

Refuse and service areas for the use shall not adversely affect automotive and pedestrian safety and convenience, traffic flow and control, or access in case of fire or catastrophe.

(12)

In all districts except the C-OPI district, and also with the exception of hotel, motel and timeshare uses, the proposed special exception use will not attract the principal portion of its customers/clients from off-island locations. The applicant shall submit evidence satisfactory to the town council that not less than 50 percent of the customers of the proposed use will be town persons. Evidence submitted in support of this contention shall include credible data or information suitable for review by the town to determine the credibility and the appropriateness of the applicant's conclusion. The submittal shall include a description of the types of information used and the methodology employed to arrive at the conclusion. Information used shall include, but shall not be limited to, lists of customer/client addresses or certification thereof by an independent certified public accountant approved by the town, market studies prepared by independent professional firms, or data from similar operations under the control of the applicant. The town may in the future require the applicant to demonstrate to the satisfaction of the town council that the special exception use is continuing to be town-serving.

(13)

If historic/specimen trees are located on the subject property, the location of said historic/specimen trees shall be identified on a signed and sealed survey. In addition, adequate landscaping, screening and barricade protection of historic/specimen trees shall be demonstrated to be provided as required in this chapter.

(14)

The proposed use will not place a greater burden than would be caused by a permitted use on municipal police services due to increased traffic or on fire protection services due to the existence of or increased potential for fire/safety code violations.

(Ord. No. 2-74, § 6.40(a)—(m), (r), 3-26-74; Ord. No. 3-77, § 11, 3-29-77; Ord. No. 5-78, § 12, 3-31-78; Ord. No. 7-79, § 12, 3-30-79; Ord. No. 4-80, § 6, 3-31-80; Ord. No. 1-85, §§ 3(b), 4(d), (e), 2-11-85; Ord. No. 1-90, § 4(d), 2-5-90; Ord. No. 1-91, § 4(c), (d), 4-23-91; Ord. No. 1-96, § 7, 2-5-96; Ord. No. 1-99, § 6, 4-5-99; Ord. No. 2-2011, § 2, 7-13-11; Ord. No. 7-2014, § 9, 5-14-14)

(a)

In conjunction with subsection 134-229(8), the following factors may be used as a guide in determining the parking need generated by any commercial uses (retail, personal services, offices, professional and business services, banks and financial institutions) being considered for special exception approval:

(1)

Offices, professional and business services, banks and financial institutions.

a.

Per each full-time employee, 0.65 spaces; plus

b.

Per each part-time employee, 0.33 spaces; plus

c.

Per salesman, 0.16 spaces; plus

d.

Twenty-five percent of the sum of subsections (a)(1)a through (a)(1)c to cover customer parking need.

(2)

Retail and personal services uses.

a.

Per each full-time employee, 0.65 spaces; plus

b.

Per each part-time employee, 0.33 spaces; plus

c.

Two times the sum of subsections (a)(2)a and (a)(2)b to cover customer parking need.

(b)

The calculations in subsections (a)(1) and (2) of this section may be used to determine if the proposed use would generate parking need in excess of that required by the parking schedule of this chapter.

(Ord. No. 2-74, § 6.40(h), 3-26-74; Ord. No. 3-77, § 11, 3-29-77; Ord. No. 5-78, § 12, 3-31-78; Ord. No. 7-79, § 12, 3-30-79; Ord. No. 4-80, § 6, 3-31-80; Ord. No. 1-85, §§ 3(b), 4(d), (e), 2-11-85; Ord. No. 1-90, § 4(d), 2-5-90; Ord. No. 1-91, § 4(c), (d), 4-23-91)

(a)

When any residential use is approved as a special exception use as provided for within the C-TS, C-WA, or C-OPI commercial district, it shall conform to the lot, yard, and bulk regulations of the R-C residential district and, if appropriate, division 9 of article VIII of this chapter and subdivision II of division 10 of article VIII of this chapter.

(b)

When a one-family residential use is approved as a special exception use above the first floor within the C-TS, C-WA, or C-PC district, the residential story shall conform to the lot, yard, and bulk requirements of the R-C residential district.

(Ord. No. 2-74, § 6.40(o), 3-26-74; Ord. No. 3-77, § 11, 3-29-77; Ord. No. 5-78, § 12, 3-31-78; Ord. No. 7-79, § 12, 3-30-79; Ord. No. 4-80, § 6, 3-31-80; Ord. No. 1-85, §§ 3(b), 4(d), (e), 2-11-85; Ord. No. 1-90, § 4(d), 2-5-90; Ord. No. 1-91, § 4(c), (d), 4-23-91)

With reference to group homes and foster care facilities, locations in proximity to the town center and commercial areas are preferred because of the greater availability of goods and services, both public and private.

(Ord. No. 2-74, § 6.40(p), 3-26-74; Ord. No. 3-77, § 11, 3-29-77; Ord. No. 5-78, § 12, 3-31-78; Ord. No. 7-79, § 12, 3-30-79; Ord. No. 4-80, § 6, 3-31-80; Ord. No. 1-85, §§ 3(b), 4(d), (e), 2-11-85; Ord. No. 1-90, § 4(d), 2-5-90; Ord. No. 1-91, § 4(c), (d), 4-23-91)

(a)

Special exceptions in the C-WA district which involve special allowances pertaining to residential uses, height or coverage, as referenced in section 134-1165, shall be based upon the Worth Avenue Design Guidelines and contingent upon review and recommendation by the architectural commission.

(b)

The architectural commission, in order to make a positive recommendation, must make an affirmative finding that the proposed special exception is meritorious to the town because of its general appearance and adherence to the Worth Avenue Design Guidelines, published by Adley, Brisson, Engman, Inc.

(c)

The Worth Avenue Design Guidelines are incorporated and adopted as part of this chapter as if fully set forth in this section.

(Ord. No. 2-74, § 6.40(q), 3-26-74; Ord. No. 3-77, § 11, 3-29-77; Ord. No. 5-78, § 12, 3-31-78; Ord. No. 7-79, § 12, 3-30-79; Ord. No. 4-80, § 6, 3-31-80; Ord. No. 1-85, §§ 3(b), 4(d), (e), 2-11-85; Ord. No. 1-90, § 4(d), 2-5-90; Ord. No. 1-91, § 4(c), (d), 4-23-91)

Cross reference— Special exception to height regulations, special exception structures, § 134-1165.

Waivers providing for relief from the strict application of certain of the dimensional requirements of the zoning code are available for the following situations:

(1)

Additions to, or renovation of existing single-family development constructed prior to 1980. These waivers will be reviewed and approved or denied administratively by the director of the planning, zoning and building department.

(2)

Modifications to landmarked structures or properties. These waivers will be reviewed and approved or denied by the landmarks preservation commission and ratified by the town council.

(Ord. No. 8-07, § 2, 5-8-07)

(a)

Approval of the waiver will not compromise traffic safety.

(b)

Approval of the waiver will not compromise fire safety.

(c)

There shall be no objection of any abutting property owner(s).

(Ord. No. 8-07, § 2, 5-8-07; Ord. No. 26-10, § 11, 12-15-10)

Editor's note— Ord. No. 8-07, § 2, adopted May 8, 2007, enacted provisions intended for use as subsections 1. and 2. To preserve the style of this Code, and at the discretion of the editor, said provisions have been redesignated as subsections (a) and (b).

(a)

Specific conditions for approval of a waiver of required minimum side yard setback.

(1)

For a single-story structure, the resulting side yard setback is not less than any existing nonconforming side yard setback of the principal structure located on property immediately abutting the side yard for which the waiver is requested.

(2)

For a two-story structure, the resulting side yard setback is not less than:

a.

Any existing nonconforming side yard setback of the single-story principal structure located on property immediately abutting the side yard for which the waiver is requested, plus two and one-half feet; or

b.

Any existing nonconforming side yard setback of any two-story principal structure located on property immediately abutting the side yard for which the waiver is requested.

(3)

In no event shall the side yard be less than seven and one-half feet in the R-B district and not less than ten feet in any other residential district.

(b)

Specific conditions for approval of a waiver of required minimum rear yard setback.

(1)

For a single-story structure, the resulting rear yard setback is not less than any existing nonconforming rear yard setback of the principal structure located on property immediately abutting the rear yard for which the waiver is requested.

(2)

For a two-story structure, the resulting rear yard setback is not less than:

a.

Any existing nonconforming rear yard setback of any single-story principal structure located on property immediately abutting the rear yard for which the waiver is requested, plus five feet; or

b.

Any existing nonconforming rear yard setback of any two-story principal structure located on property immediately abutting the rear yard for which the waiver is requested.

(3)

In no event shall the rear yard be less than seven and one-half feet in the R-B district and not less than ten feet in any other residential district.

(c)

Specific conditions for approval of a waiver of minimum front yard setback for entry features.

(1)

The waiver shall be only for a single-story entry feature which meets the following conditions:

a.

Such feature shall not exceed 25 percent of the total dimension of the building wall from which such entry feature projects (measured parallel to said building wall) but shall not be required to be less than ten feet wide.

b.

The measurement of the projection from the building wall shall not be more than the width of the entry feature.

(2)

The resulting front yard setback is not less than the lesser of any existing nonconforming front yard setback of the principal structures located on property immediately abutting either side of the property for which the waiver is requested. In no case, however, shall the front yard setback be less than 20 feet.

(d)

Notice to abutting property owners; review by director.

(1)

Abutting property owners shall be notified by certified mail to their respective addresses, as shown on the county property appraiser's tax records, not less than 15 calendar days prior to a decision by the director to approve or deny an application for a dimensional waiver.

(2)

Said notification shall describe the nature and extent of the requested waiver, the location of the property for which the waiver is requested, and the date by which the application will be acted upon by the director.

(3)

The director or his/her designee shall approve, approve with modifications or deny the application for a waiver within 30 days of receipt of the application and shall notify the applicant and abutting property owner(s) in writing by certified mail within seven days of the decision.

(4)

The applicant or abutting property owner(s) shall have 30 days, from the date of the issuance of the certified letter notifying the applicant of the director's decision, to file an appeal with the town council as set forth under sections 134-141—134-145.

(5)

Effective date of approval of a waiver. The approval of a waiver by the director or his/her designee shall become effective upon the expiration of the appeal period as outlined in section 134-145.

(Ord. No. 8-07, § 2, 5-8-07)

Editor's note— Ord. No. 8-07, § 2, adopted May 8, 2007, enacted provisions intended for use as subsections 1.—4. To preserve the style of this Code, and at the discretion of the editor, said provisions have been redesignated as subsections (a)—(d).

The purpose and intent of this section is to provide owners of landmark properties and structures with flexibility in the rehabilitation, expansion, and redevelopment of buildings and structures within the town. This Code establishes general standards for the location, design, scale, and massing of buildings and structures which do not always fit the unique conditions and circumstances of a built-out community that includes many buildings of distinctive individual and cumulative design and character. This section establishes substantive criteria for the review and approval of development on landmarked properties when the property owner desires to use conditional dimensional waivers to the strict application of the underlying zoning district regulations.

(1)

Application of dimensional waivers for landmark properties. The dimensional waivers of this section may be applied to applications that seek to deviate from the strict application of the underlying zoning district regulations, except that these standards shall not be applied in commercial zoning districts. The dimensional waivers of this section shall be applied in addition to the standards for approval of certificates of appropriateness that are set out in chapter 54. It is not the intent of this section that the consideration of a dimensional waiver supercedes the criteria for granting a certificate of appropriateness.

(2)

Description of conditional dimensional waivers available for landmark structures. The landmark preservation commission may apply the following conditional dimensional waivers in the alternative to the strict application of the underlying zoning district regulations:

a.

Reduced setbacks for expansion of landmark buildings. Reduced side and rear yard setbacks may be approved for the expansion of landmark buildings, or the addition of permissible new buildings, on a lot which contains a landmark building if all of the following are demonstrated:

1.

The setback does not violate any of the following conditions:

Front: Reduction can be up to 90 percent of underlying zoning district requirement; provided, however that the front yard setback shall not be less than the lesser of the existing front yard setbacks of the principal structures on the lots immediately abutting the side property lines of the lot for which the waiver is being requested.

Side: Reduction can be up to 65 percent of underlying zoning district requirement; provided, however, that the side yard setback shall not be less than five feet.

Side street: Reduction can be up to 65 percent of underlying zoning district requirement.

Rear: Reduction does not result in a rear yard setback of less than seven and one-half feet.

Rear street: Reduction does not result in a rear street yard setback of less than 20 feet.

2.

The proposed portion of building or structure between the required setback and the reduced setback does not compromise the historic character of the landmark building, due to one or more of the following:

A.

The architecture and design of the additional building or structure between the required setback and the reduced setback:

i.

Is complimentary to the architecture of the landmark building, while neither replicating the architecture nor fundamentally departing from it;

ii.

Is such that the additional building or structure appears subordinate to those parts of the landmark building that materially contribute to its landmark status;

iii.

Does not block public views of those parts of the landmarked building that materially contribute to its landmark status; and

iv.

Allows for future removal of the additional building or structure and restoration of the landmark building to its existing design.

B.

The volume and footprint of the portion of the building or structure between the required setback and the reduced setback is de minimus, and the character of the proposed building or structure does not tend to distract the eye from the principal landmark building.

C.

The portion of the additional building or structure between the required setback and the reduced setback is completely screened from view from public rights-of-way by existing topography, existing walls, and/or existing landscaping that do not interfere with the historic character of the landmark building.

D.

Reasonable alternative designs that are permitted by the strict requirements of the underlying zoning district and result in the same cubic content ratio would detract from the landmark character of the building.

b.

Reduced setbacks for restoration/replacement of documented portion of a landmark building that has been destroyed. A reduction of up to 100 percent of any required setback may be approved if it is demonstrated that the proposed development between the required setback and the reduced setback area enhances the historic character of the landmark building by restoring or replacing a portion of the original building or structure that had been destroyed or demolished.

c.

Increasing maximum height of driveway gates. An increase in the maximum height of driveway gates may be approved if it is demonstrated that:

1.

The proposed driveway gates will restore or replace gates that contribute to the character of landmark building;

2.

The proposed driveway gates are located no closer to the street than the original driveway gates; and

3.

The proposed driveway gates will not compromise traffic safety.

d.

Decreasing minimum setback of driveway gates. A decrease in the minimum setback of driveway gates may be approved if it is demonstrated that:

1.

The proposed driveway gates will restore or replace gates that contribute to the character of landmark building;

2.

The proposed driveway gates are located no closer to the street than the original driveway gates; and

3.

The proposed driveway gates are designed and located in such a manner that they will not compromise traffic safety.

e.

Decreasing landscaped open space for restoration or renovation of nonconforming landmark buildings. A decrease in the minimum landscaped open space may be approved in order to permit landmark buildings that do not conform to the minimum landscaped open space requirements to be renovated, reconstructed, or restored, in order to either preserve the building as it existed when it was landmark; or in conjunction with restoration that involves the application of subsection b.

f.

Decreasing landscaped open space for expansion of landmarked buildings which are used for an important public purpose. A decrease of up to 15 percent of the minimum required landscaped open space may be approved if it is demonstrated that:

1.

The reduction is necessary to permit the necessary expansion of a landmark building which serves an important public purpose; and

2.

Reasonable alternative designs that are otherwise permitted by the strict requirements of the underlying zoning district, and which would result in the same cubic content ratio, would detract from the landmark character of the building.

(3)

Landmarks preservation commission action; town council ratification of commission action on applications involving dimensional waivers.

a.

Decisions to be placed on town council consent agenda. Decisions of the landmark preservation commission to approve, approve with conditions, or deny applications for development approval involving dimensional waivers shall be placed on the consent agenda of the first available meeting of the town council after the decision.

b.

Removal of decisions from consent agenda. Decisions that are placed on the town council consent agenda pursuant to subsection a., may be removed from the consent agenda and placed on the regular agenda at the request of a member of the town council.

(Ord. No. 8-07, § 2, 5-8-07)

(a)

The town council may from time to time on its own motion or on petition, signed by the fee simple property owner of the property involved or authorized designee, agent or representative of the owner by power of attorney filed with the director of the planning, zoning and building department or designee, amend, supplement, change, modify or repeal the regulations, restrictions or district boundaries established in this chapter.

(b)

Any proposed amendment, supplement, change, modification or repeal shall first be submitted as an initial review to the director of planning, zoning and building or his designee, who shall submit it to the town council for its review and feedback. Should the applicant of a privately initiated text amendment decide to submit same following town council feedback, the director of planning zoning and building or his designee shall submit the application to the planning and zoning commission for its recommendations and report. Upon the filing of the recommendations and report by the planning and zoning commission, the town council shall proceed to hold a public hearing in relation thereto, giving at least 15 days' notice of the time and place of such hearing in a newspaper having a general circulation in the town, and by posting the notice on the official bulletin board of the town hall, If a proposed comprehensive plan amendment, zoning text amendment or zoning change increases the allowable density or intensity, a notice identifying such amendments or changes shall be mailed to all property owners within 1,000 feet from any part of the subject property at the address shown on the county property appraiser's tax records, advising of the day and time of the hearing on such application before the town council. Said notice shall be mailed at least 15 days prior to the date for town council consideration of the proposed amendment(s) or zoning change(s).

(c)

If an adverse report is given by the planning and zoning commission, or if a there is a written protest against such proposed amendment, supplement, change, modification or repeal, by an affected party, duly signed and acknowledged by the owners of 20 percent or more, either of the area of the lots included in such proposed change or of those immediately adjacent in the area thereof extending 500 feet therefrom, such amendment supplement, change, modification or repeal shall not become effective except by the favorable vote of three-fifths of all the members of the town council. In the event of a tie vote, the mayor shall cast the deciding vote, which shall constitute the three-fifth's requirement of the town council stated herein.

(d)

The planning and zoning commission shall hear applications to rezone property and/or to amend, supplement, change, modify or repeal any article, division or section of this chapter within 60 days of the application being deemed complete by the director of the planning, zoning and building department or designee. Any proposed amendment to change property from one zoning district to another zoning district shall require the favorable vote of at least four members of the town council. A public hearing on the application shall then be held by the town council after public notice of the hearing is given in accordance with law.

(Ord. No. 2-74, § 11.10, 3-26-74; Ord. No. 7-82, § 9(a), 3-31-82; Ord. No. 2-83, § 8(c), 2-23-83; Ord. No. 1-84, § 9, 3-1-84; Ord. No. 1-89, § 6(a), 2-6-89; Ord. No. 1-98, § 16, 2-9-98; Ord. No. 1-03, §§ 21, 23, 3-11-03; Ord. No. 1-04, § 41, 3-9-04; Ord. No. 5-09, § 25, 4-15-09; Ord. No. 10-2012, § 2, 9-11-12; Ord. No. 7-2014, § 3, 5-14-14; Ord. No. 04-2018, § 4, 4-11-18)

No amendment to this chapter shall become effective until 31 days subsequent to its enactment on second and final reading of an amending ordinance.

(Ord. No. 2-74, § 11.20(a), 3-26-74; Ord. No. 1-84, § 9, 3-1-84)

The electors shall have the power to approve or reject at the polls any amendment to this chapter or zoning map of the town passed by the town council. Within 30 days after the enactment of any amendment to this chapter, a petition signed by registered voters of the town equal to ten percent of the voters registered at the last town election may be filed with the town clerk requesting that any such amendment be either repealed or submitted to a vote of the electors.

(Ord. No. 2-74, § 11.20(b), 3-26-74; Ord. No. 1-84, § 9, 3-1-84)

(a)

All petition papers circulated for the purpose of a referendum for a zoning amendment shall be uniform in size and style. Each petition paper shall contain the full text of the zoning amendment the petitioners desire to be submitted for referendum. The signature to the petitions need not all be appended to one paper, but to each separate petition there shall be attached a statement of the circulator thereof as provided by this subdivision. Each signer of any such paper shall sign his name in ink or indelible pencil and shall indicate after his name his place of residence by street and number, or other descriptions sufficient to identify the place.

(b)

There shall appear on each petition the names and addresses of the same five electors who, as a committee of the petitioners, shall be regarded as responsible for the circulation and the filing of the petition.

(c)

Attached to each separate petition paper there shall be an affidavit of the circulator thereof that he, and he only, personally circulated the paper, that it bears a stated number of signatures, that all the signatures appended thereto were made in his presence, and that he believes them to be the genuine signatures of the persons whose names they purport to be.

(Ord. No. 2-74, § 11.20(c), 3-26-74; Ord. No. 1-84, § 9, 3-1-84)

(a)

All petition papers comprising a referendum petition for a zoning amendment shall be assembled and filed with the town clerk as one instrument.

(b)

Within ten days after the petition is filed, the town clerk shall determine whether each paper of the petition has a proper statement of the circulator and whether the petition is signed by a sufficient number of qualified electors. The town clerk shall declare any petition paper entirely invalid which does not have attached thereto an affidavit signed by the circulator thereof. If a petition paper is found to be signed by more persons than the number of signatures certified by the circulator, the last signatures in excess of the number certified shall be disregarded. If a petition paper is found to be signed by fewer persons than the number certified, the signatures shall be accepted unless void on other grounds.

(c)

After completing examination of the petition, the town clerk shall certify the result thereof to the town council at its next regular meeting. If the clerk shall certify that the petition is insufficient, he shall set forth in the clerk's certificate the particulars in which the petition is defective and shall at once notify the committee of petitioners of the clerk's findings.

(Ord. No. 2-74, § 11.20(d), 3-26-74; Ord. No. 1-84, § 9, 3-1-84)

Under this subdivision, a referendum petition may be amended at any time within ten days after the notification of insufficiency has been sent by the town clerk, by filing a supplementary petition upon additional papers signed and filed as provided for an original petition. The town clerk shall, within five days after such an amendment is filed, make an examination of the amended petition, and, if the petition is still insufficient, the clerk shall file a certificate to that effect in the clerk's office and notify the committee of the petitioners of the findings, and no further action shall be had on such insufficient petition.

(Ord. No. 2-74, § 11.20(e), 3-26-74; Ord. No. 1-84, § 9, 3-1-84)

When a referendum petition or amended petition, as defined in section 134-290, has been received by the town clerk, the amendment specified in the petition shall not go into effect and further action thereunder shall be suspended if it shall have gone into effect until and unless the petition is certified by the town clerk and approved by the electors, as provided in this subdivision.

(Ord. No. 2-74, § 11.20(f), 3-26-74; Ord. No. 1-84, § 9, 3-1-84)

Whenever the town council receives a certified referendum petition for a zoning amendment from the town clerk, it shall proceed at once to consider such petition. The town council shall take final action on the zoning amendment petitioned for referendum not later than 60 days after the date on which the petition is certified by the town clerk. The referred amendment, when reconsidered by the town council shall be upon the question, "Shall the ordinance amendment specified in the referendum petition be repealed?"

(Ord. No. 2-74, § 11.20(g), 3-26-74; Ord. No. 1-84, § 9, 3-1-84)

If the town council fails to repeal the referred amendment to this chapter, the referred amendment shall be submitted to the electors not less than 60 days or more than 90 days from the date the town council takes its final vote thereon. The town council may, in its discretion, and if no regular election is to be held within such period, provide for a special election.

(Ord. No. 2-74, § 11.20(h), 3-26-74; Ord. No. 1-84, § 9, 3-1-84)

Amendments to this chapter submitted to vote of the electors in accordance with this subdivision shall be submitted by a ballot title, which shall be prepared by the town attorney. The ballot title may be different from the legal title of such referred amendment, and it shall be a clear, concise statement, without argument or prejudice, descriptive of the substance of such zoning ordinance amendment. The ballot used in voting upon any ordinance, if a paper ballot, shall have below the ballot title the following propositions, one above the other in the order indicated: "for the zoning ordinance amendment" and "against the zoning ordinance amendment." Immediately at the left of each proposition there shall be a square in which by making a cross (X) the elector may vote for or against the zoning ordinance amendment. Any number of zoning ordinance amendments may be voted on at the same election and may be submitted on the same ballot, but any paper ballot used for voting thereon shall be for that purpose only. If voting machines are used, the ballot title of any ordinance shall have below it the same two propositions, one above the other or one preceding the other in the order indicated, and the elector shall be given an opportunity to vote for either of the two propositions and thereby vote for or against the zoning ordinance amendment.

(Ord. No. 2-74, § 11.20(i), 3-26-74; Ord. No. 1-84, § 9, 3-1-84)

If any organization or group requests the list of qualified electors for the purpose of circulating descriptive matter relating to a zoning ordinance amendment to be voted on, the town clerk or other official having custody of such list shall furnish it. For this service, the requesting party shall pay a fee to be established by the town council.

(Ord. No. 2-74, § 11.20(j), 3-26-74; Ord. No. 1-84, § 9, 3-1-84)

A referred zoning ordinance amendment which is not approved by a majority of the electors voting thereon shall thereupon be deemed repealed. If the referred zoning ordinance amendment is approved by a majority of the electors voting thereon, the zoning ordinance amendment shall become effective as of the date the results of the election are certified by the town clerk. Referendum amendments adopted or approved by the electors shall be posted and may be amended or repealed by the town council as for other ordinances.

(Ord. No. 2-74, § 11.20(k), 3-26-74; Ord. No. 1-84, § 9, 3-1-84)