(a)

In general. Requests for variances from requirements of the development code shall generally be considered for those provisions which regulate proposed site development and the requirements applicable to existing development. Requests for variances to permit a use which is not allowed as a permitted use or by special exception within the specific zoning district shall not be considered. In addition, requests for variances to permit the nonconforming use of any land or structure, or the continuance of any nonconforming use shall not be considered. Variances from requirements established in a PUD/PCD master development agreement may only be made as outlined in the agreement.

(b)

Specialized variance procedures and requirements. Specialized variance procedures and requirements to be used in lieu of or in addition to the requirements of this chapter, are outlined in the following locations:

(1)

Chapter 5, subdivisions.

(2)

Chapter 6, site development plan approval, as to minor technical and design aspects, including administrative variances from the standard construction details as specified in subsection 8(d), chapter 6.

(3)

Chapter 8, building and fire codes, as specified in subsection (c) below.

(4)

Chapter 9, environmental protection, as to wetland protection, specimen tree protection requirements, and area tree protection requirements.

(5)

Chapter 10, clearing, grading and stormwater management, as to stormwater management.

(6)

Chapter 12, roads and vehicular use areas, as to access control and parking.

(7)

Chapter 13, landscaping and buffers, as to required landscaping that cannot fit on a site and modifications or substitutions to required materials.

(8)

Chapter 14, architectural design.

(9)

Chapter 15, signs, as to signs within [the] Ridgewood Development RD District.

(10)

Chapter 16, miscellaneous regulations, as to height and setback requirements.

(11)

Chapter 17, zoning district regulations, as to dimensional requirements.

(c)

Procedure for variances to chapter 8, building and fire codes. Application for variance shall be made on the appropriate forms provided by the department for that purpose, and shall be accompanied by the appropriate review fee.

(1)

Scheduling of hearing. Upon receipt of an application for variance, a meeting of the construction regulation board or other regulatory body as designated by the Port Orange City Council, shall be scheduled within 15 days, to be held within 30 days. The meeting shall be open to the public, but shall not constitute a public hearing as otherwise defined in this Code.

(2)

Decision of the board. A decision of the board to vary the application of any provision of the codes shall specify in what manner such variation or modification is made, the conditions upon which it is made and the reasons therefor.

(3)

Appeals to city council. If the board decides not to grant a variance or modification, the applicant shall have the right to appeal the board's decision to the city council by filing a written request for appeal with the building official no later than 30 days after the rendition of the board's decision. The appeal shall be scheduled for the next available agenda, and all interested parties shall be notified of the appeal and hearing date. However, if the board fails to take action within 60 days of the variance's first consideration by the board, then the city council may take action based upon an assumed denial of variance by the board.

(d)

Application for all other variances. Application for variance shall be made on the appropriate forms provided by the department for that purpose, and shall be accompanied by the appropriate review fee. Except where modified by the specialized procedures above, variances shall be considered as follows:

(1)

Applications for variance shall be submitted in accordance with the adopted public hearing calendar and scheduled for the corresponding planning commission meeting date.

(2)

Applications for variance shall include a legal description of the property, sketch or survey of the property (no greater than 11 by 17 inches), proof of ownership, and authorization of the owner if represented by an agent or contract purchaser.

(3)

In addition, the applicant shall provide a written statement which explains the conditions and circumstances of the alleged hardship, the proposed action by the applicant should the variance be granted, and the necessity of the action. The written statement shall clearly justify the granting of relief from [the] requirements of the development code, and satisfactorily address the review criteria of this chapter.

(e)

Notification of public hearing. Except where modified by the specialized procedures noted in this chapter, all variance requests shall be considered at public hearings, which shall be noticed as follows:

(1)

Adjoining owners. The city shall send notice of the proposed variance to the owners of all adjoining properties to the subject property. Such notice shall include the date, time and place of the public hearing before the planning commission, along with a clear and concise description of the proposed variance. For the purposes of such notification, adjoining properties shall include those properties separated from the subject property by a road, canal, easement, right-of-way, or similar barrier of 500 feet or less in width.

(2)

Posting of property. The city shall post every property that is the subject of a public hearing with signs notifying the public of the proposed variance, date of public hearing, and the department to contact for further information. Signs shall be placed, at a minimum, along all public road frontages, with a minimum of one sign per 500 feet along any one frontage.

(3)

Public advertisement. Notice of public hearing shall be published in a newspaper of general circulation within the city at least 15 days prior to the hearing, with a second publication to be at least five days prior to the hearing. Notice shall also be posted in a conspicuous location at the city hall, and may be posted at other public locations at the discretion of the city.

(f)

Procedure for public hearing.

(1)

Planning commission action. The planning commission shall consider every variance request at the public hearing noticed in subsection (e) of this section. A decision of the planning commission to vary the application of any provision of this code shall specify the variance granted, the conditions upon which it is granted and the reasons therefor.

(2)

Appeals to city council. Any party aggrieved by a decision of the planning commission on a requested variance shall have the right to appeal the commission's decision to the city council by filing a written request for appeal with the administrative official, accompanied by the appropriate fee no later than the closure of the fifth business day after the rendition of the commission's decision on the requested variance. For the purposes of this section, an aggrieved party is defined to be the applicant, adjoining property owners, or any person sufficiently affected by the action taken so as to have a legally protectible and tangible interest at stake [standing], provided such person was also present at the public hearing and entered testimony into the record. The administrative official shall schedule the appeal for the next available city council agenda and notify the applicant and the appellant.

(3)

City council review on appeal. Upon appeal, the city council shall consider all facts presented during the planning commission hearing, the review criteria established under this code for variance requests, and the commission's decision on the requested variance.

(g)

Review criteria.

(1)

Review criteria, building and fire code variances. When reviewing an application for a variance, the construction regulation board and city council shall consider the following criteria:

(a)

Special circumstances exist which are peculiar to the particular property or structure, and which are not applicable to similar properties or structures in general.

(b)

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

(c)

Literal interpretation of this code would result in unnecessary and undue hardship on the applicant.

(d)

The granting of the variance is consistent with the overall intent of this code, and will not result in increased danger or reduced safety to the owner or general public.

(e)

The variance represents a reasonable disposition of a claim brought under the Bert J. Harris Private Property Rights Protection Act, chapter 95-181, Laws of Florida, that a development order of the city has unreasonably burdened the applicant's property, based upon the recommendations of the special magistrate appointed in accordance with the act, or the order of a court as described in the act.

The above criteria shall be used to determine the justification for granting of relief from requirements of the development code. All variance requests shall demonstrate the application of each criterion to the specific case.

(2)

Review criteria, all other variances. The following criteria shall apply in all variance cases other than those relating to building and fire codes:

(a)

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.

(b)

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

(c)

Literal interpretation and enforcement of the development code regulations would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms of the development code, and would work unnecessary and undue hardship on the applicant.

(d)

The variance, if granted, is the minimum variance necessary to make possible the reasonable use of the land, building or structure.

(e)

Granting of the variance request will not confer on the applicant any special privilege that is denied by the development code to other lands, buildings or structures in the same zoning district.

(f)

The granting of the variance will be in harmony with the general intent and purpose of this code, and will not be injurious to the surrounding properties or detrimental to the public welfare.

(g)

The variance represents a reasonable disposition of a claim brought under the Bert J. Harris Private Property Rights Protection Act, chapter 95-181, Laws of Florida, that a development order of the city has unreasonably burdened the applicant's property, based upon the recommendations of the special magistrate appointed in accordance with the act, or the order of a court as described in the act.

The above criteria shall be used to determine the justification for granting of relief from requirements of the development code. All variance requests shall demonstrate the application of each criterion to the specific case.

(3)

Financial hardship. Financial disadvantages or inconvenience to the applicant shall not of themselves constitute conclusive evidence of unnecessary and undue hardship and be grounds to justify granting of a variance.

(4)

Physical hardship. Notwithstanding the foregoing criteria, variances may be granted under the authority of the Americans with Disabilities Act as reasonable accommodations based on the disabilities of any applicant or a member of the applicant's household. For purposes herein, "reasonable accommodation" and "disabilities" shall have the meanings provided under the Americans with Disabilities Act.

(5)

Hardship related to provision of personal wireless communications. Notwithstanding the foregoing criteria, variances may be granted to any person applying for a permit for personal wireless communications-related development, from any requirement of this code which, as applied to such person, would have the "effect of prohibiting the provision of wireless communication services," as that phrase is used in Section 704 of the Telecommunications Act of 1996.

(h)

Conditions of approval.

(1)

Conditions and safeguards. In granting any variance, appropriate conditions and safeguards may be prescribed to ensure compliance with the requirements of this chapter and the code in general. Such conditions may include time limits for the initiation of the variance, specific minimum or maximum limits to regular code requirements, or any other conditions reasonably related to the requirements and criteria of this chapter.

(2)

Transfer of variances. Variances run with the property and the use of a variance may be transferred to another party for use on the same property.

(3)

Expiration of variance approval. A variance that has not been utilized within two years of being granted shall not be utilized without a new public hearing in accordance with requirements of this chapter.

(i)

Violation of variance terms or conditions. It is a violation of this code for any person to violate or to refuse to comply with any term or condition of a variance. Violations may be enforced or prosecuted as provided by law for prosecution or enforcement of municipal ordinances.

(Ord. No. 1991-20, 8-27-91; Ord. No. 1993-2, 3-16-93; Ord. No. 1993-58, 1-18-94; Ord. No. 1995-43, §§ 80—84, 12-19-95; Ord. No. 1996-33, §§ 12—15, 11-19-96; Ord. No. 1997-23, § 37, 4-29-97; Ord. No. 2003-23, § 14, 6-17-03; Ord. No. 2011-5, § 3, 3-22-11; Ord. No. 2015-12, § 2, 4-21-15; Ord. No. 2019-8, § 18, 8-20-19)