(a)

Establishment of development special magistrate. Pursuant to its home rule power provided in Chapter 166, Florida Statutes, and other constitutional and statutory authority, the City of Riviera Beach hereby establishes a development special magistrate, who shall have the powers and duties as set forth herein. Whenever the terms "board of adjustment," "zoning board of adjustment," "zoning board of appeals" or "zoning board of adjustment and appeals" or other similar terms of reference are used in the City of Riviera Beach Code of Ordinances, the term "development special magistrate" shall apply unless otherwise noted.

(b)

Appointment; removal; qualifications.

(1)

Appointment and removal. The city council shall appoint one or more development special magistrates to conduct all hearings and appeals contemplated by this article. The development special magistrate shall serve at the pleasure of the city council and may be removed by the city council at any time, with or without cause.

(2)

Qualifications. The development special magistrate shall be an attorney, who is a member of the Florida Bar in good standing, and who is knowledgeable in land development and zoning laws and issues.

(Ord. No. 4054, §§ 2, 3, 12-3-14)

(a)

The development special magistrate shall have the following duties:

(1)

To conduct hearings regarding applications for variances and for relief from requirements of the city's land development code and to make final decisions either granting, conditionally granting, or denying such applications in accordance with this article; and

(2)

To hear and decide administrative appeals concerning allegations of an error in any order, requirement, decision or determination made by the community development director in the enforcement of any regulations in the land development code, including, but not limited to, the zoning code, the sign code and the subdivision code, of the City of Riviera Beach.

(b)

The development special magistrate shall have all powers necessary to conduct any hearings or appeals assigned to the development special magistrate pursuant to this article or any pending hearings or appeals before the zoning board of adjustment at the time the ordinance from which this article derives is enacted.

(c)

The development special magistrate may obtain the issuance and service of subpoenas for the attendance of witnesses or the production of evidence at the hearings. Subpoenas may be issued by the development special magistrate at the request of the applicant, city staff, or an affected party involved in the hearing. The development special magistrate may also administer oaths and take testimony and evidence as provided in this article.

(d)

It shall be the duty of the development special magistrate to inquire fully into the facts of each case and to offer the property owner, city staff, and an affected party, a reasonable opportunity to be heard on any matter or issue relevant to the hearing.

(Ord. No. 4054, §§ 2, 3, 12-3-14)

(a)

Standing for variance or relief from requirements of the land development code. Any property owner of real property located in the City of Riviera Beach or authorized applicant if he or she meets the qualifications in section 31-39 below, shall have standing to apply for a variance or relief from the requirements of the land development code, and request a hearing before the development special magistrate.

(b)

Standing for appeals before the development special magistrate. Any person or business seeking redress for a decision of the community development director directly and specifically affecting the person or business may appeal to the development special magistrate concerning an interpretation or the administration of the city's land development code, including, but not limited to, the zoning code, the sign code and the subdivision code, of the City of Riviera Beach.

(Ord. No. 4054, §§ 2, 3, 12-3-14)

(a)

Procedures for applying for variances and relief from land development code, and amending or withdrawing such pplications.

(1)

Applications. All applications for variances or relief from the land development code to the development special magistrate shall be in writing on forms prescribed by the community development department and signed by the applicant. If the applicant is not the record title owner of the real property involved, then the record title owner shall also sign the application, and the applicant's interest in the real property shall be disclosed. Every application shall be sufficiently detailed to accurately inform the development special magistrate of the variance or relief requested, the reasons for the variance or relief requested and the relevant applicable provisions of the land development code.

(2)

Amendment to application. An application for a variance or relief from the land development code may be amended up to and during the public hearing of the application, provided that the amendment does not materially alter the application as published in the public notice described in section 31-40(b) of this article. If the proposed amendment renders the request misleading or requests a greater variance and is made after the public notice of the hearing has been sent for publication or mailed pursuant to section 31-40(b) of this article, then a new hearing date shall be set and the community development department shall publish an amended public notice. The applicant shall pay an additional fee equal to the city's costs of publishing and mailing the amended public notice.

(3)

Withdrawal of application. An applicant may voluntarily withdraw his or her application for a variance or relief from the land development code at any time prior to the commencement of a determination by the development special magistrate of the application, or amended application, and such withdrawal shall be without prejudice. A voluntary withdrawal must be made in writing and filed with the community development department unless it is announced at a public hearing.

(b)

Procedures for appeal of an interpretation or administration of the land development code.

(1)

All administrative appeals concerning allegation(s) of an error in any order, requirement, decision or determination made by the community development director in the enforcement of any regulations in the land development code, including, but not limited to, the zoning code, the sign code and the subdivision code must be made by filing a written appeal with the community development department within 30 days after the rendition of the written order, requirement, decision, or determination from which the appeal is being made.

(2)

All appeals must be made in writing, specifying the grounds for the appeal, and must be made in the form prescribed by the community development department.

(3)

The community development director from whom the appeal is taken shall, upon notification by the community development department of the filing of the appeal and prior to the hearing date, transmit to the development special magistrate all papers and materials constituting the record of the action or decision that is being appealed, together with the materials, if any, to support the administrative action or decision.

(c)

Stay during proceedings. An application for a variance or relief from the land development code or the filing of an appeal made pursuant to this article shall stay all work on the property unless the city manager certifies to the development special magistrate, that, by reason of the facts stated in the certification, such a stay would cause imminent peril to life or property. Such work or proceedings, so certified by the city manager, shall not be stayed except by a restraining order granted by a court of competent jurisdiction.

(Ord. No. 4054, §§ 2, 3, 12-3-14)

(a)

Date of the hearing. The community development department shall set the application for a variance for hearing within a reasonable time from the date of the application generally not to exceed 60 days from the application or appeal to the development special magistrate.

(b)

Public notice.

(1)

Public notice of the hearing shall be made by the community development department and shall contain the following information:

a.

The date, time and place of the hearing.

b.

A brief description of the matter to be heard.

c.

A legal description of the property for which the request is being made, together with any other appropriate information identifying the property.

(2)

The public notice of the hearing shall be published in a newspaper of general circulation in the city, not less than ten days before the date of the development special magistrate proceeding.

(3)

A courtesy notice of the hearing shall be mailed by first class mail to the applicant and to all property owners within 300 feet in all directions from the property involved in the application, as shown in the current records of the Palm Beach County Property Appraiser. Notices shall be sent at a minimum of ten days before the published development special magistrate proceeding date. Failure of receipt of such mailed notice by individuals shall not affect the validity of any action or decision of the development special magistrate.

(4)

The property owner shall post a notice of the hearing on the real property, for which the requested proceeding is being made, not less than ten days before the date of the proceeding. Such notice shall be on a sign approved by the community development department.

(Ord. No. 4054, §§ 2, 3, 12-3-14)

(a)

Format of hearing.

(1)

At the hearing, the development special magistrate shall offer the property owner, city staff, affected parties, and other interested parties, a reasonable opportunity to be heard on any matter or issue that is relevant to the proceeding. Affected parties shall be those businesses or property owners located within 300 feet in all directions of the property involved in the application. Interested parties shall be members of the public. The property owner, city staff, affected parties, or interested parties may appear at the hearing in person or through an attorney or other designated representative. Failure of any person to appear at any scheduled hearing in accordance with this article shall constitute waiver of that person's right to a hearing.

(2)

The applicant, city staff, and affected parties may present relevant testimony and exhibits. All testimony shall be under oath and shall be recorded. The formal rules of evidence shall not apply, but fundamental due process shall be observed and shall govern the proceedings.

(3)

After hearing and upon consideration of such evidence, the development special magistrate shall make a decision upon the application for a variance or relief from the requirements of the land development code.

(b)

Rendition of decisions. Each decision, resolution or order of the development special magistrate shall be in writing and contain findings of fact, conclusions of law, and state the relief granted the applicant, if any. Such decisions, resolutions or orders shall be deemed rendered when signed by the development special magistrate. Decisions, resolutions or orders shall be filed in the office of the city clerk.

(Ord. No. 4054, §§ 2, 3, 12-3-14)

(a)

Generally. The development special magistrate may approve an application for a variance or relief from the land development code where such variance or relief is not contrary to the public interest, when owing to special conditions, a literal enforcement of the provisions of the land development would result in unnecessary and undue hardship. The development special magistrate may grant such variance or relief only where all criteria are met by the applicant.

(b)

Specifically. The development special magistrate may grant an application for a variance or relief from the land development code based on the following criteria:

(1)

Mandatory specific criteria for approving variances or relief. In order to authorize any variance or relief under the terms of this article, the development special magistrate must find all of the following specific criteria:

a.

Existence of special conditions or circumstances. That a special condition or circumstance exists which is peculiar to the lands, structures, or building involved in the application.

b.

Conditions not created by applicant. That the special condition or circumstance did not result from the actions or inaction(s) of the applicant.

c.

Special privileges not conferred. That granting the variance or relief requested will not confer on the applicant any special privilege that is denied to other lands, building or structures.

d.

Hardship conditions exist. That literal enforcement of the provisions of the ordinance would work unnecessary and undue hardship on the applicant and would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms of existing ordinances.

(2)

Supplementary criteria to be used in any approval of a request for a variance or relief from the land development code. The development special magistrate shall also use the following standards when granting a requested variance or relief from the land development code:

a.

Minimum variance only to be granted. That the variance granted shall be the minimum variance that will make possible the requested use of land, building, or structure.

b.

Variances to lot minimum requirements. Where a lot area, lot width or lot depth variance is applied for, no such variance may be granted provided vacant land is available, adjacent to the lot in question, sufficient to make the variance unnecessary. However, where the acquisition of such property would cause the adjacent property or structures to become nonconforming, then the acquisition option is invalid. The applicant for such variances or relief shall provide an affidavit with the application for variance stating that the above-mentioned conditions exist with respect to the acquisition of additional property.

c.

Not injurious to public welfare or intent of ordinance. The grant of the variance or relief shall be in harmony with the general intent and purpose of the comprehensive plan and the land development code, and that such variance will not be injurious to the area involved or otherwise detrimental to the public welfare.

d.

Conditions and safeguards may be imposed. In granting any variance or relief from the land development code, the development special magistrate may prescribe appropriate conditions and safeguards in conformity with the land development code. Violation of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall run with the land and shall be deemed a violation of the ordinance.

(c)

Time limit for variances. The development special magistrate may prescribe a reasonable time limit within which the action for which the variance is required shall be begun, or completed, or both. A variance granted by the development special magistrate shall automatically expire under the following conditions:

(1)

The variance shall expire 180 days from the date of the rendition of the written decision, resolution or order of the development special magistrate granting the variance if a building permit has not been issued in accordance with the plans and condition upon which the variance was granted.

(2)

The variance shall expire if a building permit issued in accordance with the plans and conditions upon which the variance was granted expires and is not renewed pursuant to the applicable provisions regarding renewal of building permits.

(3)

A variance may be extended up to 180 days at the discretion of the development special magistrate.

(4)

Variances shall not become operative until the applicant has fully complied with all conditions in the development special magistrate's order(s).

(d)

Prohibited variances.

(1)

Use variances prohibited. The development special magistrate shall not grant under any circumstances a variance that either (1) permits a use that is not generally or by special exception permitted in the zoning district involved, or (2) permits any use that is expressly or by implication prohibited by terms of the land development ordinance in the subject zoning district. Furthermore, no nonconforming use of neighboring lands, structures, or buildings in the same zoning districts, and no permitted use of lands, structures or buildings in other zoning districts shall be considered grounds for the authorization of a variance or request for relief from the land development code.

(2)

Density variances prohibited. Under no circumstances shall the development special magistrate grant a variance which has the effect of increasing the density and the number of dwelling units to be allowed on residential property as defined in the applicable sections of the land development code.

(Ord. No. 4054, §§ 2, 3, 12-3-14)

Whenever the development special magistrate has denied a request, he or she shall not consider any further application for the same request for a period of six months from the date of such action, except as follows:

An applicant or affected party may not request a rehearing or reconsideration of his or her application unless the applicant or affected party files a written motion for rehearing of the decision rendered by the development special magistrate with the community development department within ten days of the date the rendered decision, as defined in section 31-41(b) of the Code, and the motion for rehearing shall show good and specific cause for the requested rehearing based on the following grounds:

(1)

Newly discovered evidence which by due diligence could not have been discovered in time to present at the hearing.

(2)

Fraud, misrepresentation or other misconduct of any person who submitted evidence to the development special magistrate.

(3)

Mistake, inadvertence, surprise or excusable neglect.

(4)

The development special magistrate has overlooked or misinterpreted any material points of law or fact.

The development special magistrate may grant or deny such motion for rehearing, without a hearing, upon consideration of the applicant's motion and any written response by the city. Such response by the city shall be made in writing and filed with the development special magistrate within ten days of applicant's filed motion for rehearing. If the development special magistrate grants a motion for rehearing, the development special magistrate shall advise all parties in writing. The rehearing of the matter shall be scheduled by the community development department and public notice of the rehearing shall be made pursuant to this article. All administrative costs of the city for a rehearing, including but not limited to, the mailing and publication costs of the required notice, shall be borne by the applicant or affected party. Only one request for a rehearing shall be made and/or granted.

(Ord. No. 4054, §§ 2, 3, 12-3-14)

(a)

Date of the hearing. The community development department shall set the appeal to the special magistrate for hearing within a reasonable time from the date of that the office received the appeal, said date to generally not exceed 60 days.

(b)

The person appealing/applicant shall be given notice of the hearing in writing.

(c)

Format of hearing.

(1)

At the hearing, the development special magistrate shall offer the applicant and city staff a reasonable opportunity to be heard on any matter or issue that is relevant to the proceeding. Either party may appear at the hearing in person or through an attorney or other designated representative. Failure of any person to appear at a scheduled hearing in accordance with this article shall constitute waiver of that person's right to a hearing.

(2)

The applicant and city staff may present relevant testimony and exhibits. All testimony shall be under oath and shall be recorded. The formal rules of evidence shall not apply, but fundamental due process shall be observed and shall govern the proceedings.

(3)

After hearing and upon consideration of such evidence, the development special magistrate shall make a decision upon the appeal concerning an interpretation or administration of the land development code, including but not limited to, the zoning code, the sign code, and the subdivision code.

(Ord. No. 4054, §§ 2, 3, 12-3-14)

Upon consideration of all of the relevant testimony and evidence presented by the applicant and city staff at the hearing, the development special magistrate may approve an appeal upon his or her findings of fact and conclusion of law that an error in an order, requirement, decision, or determination was made by the community development director in the enforcement of any regulations in the land development code, including but not limited to, the zoning code, the sign code, and the subdivision code, as applicable. The development special magistrate's decision shall be in writing. either party may appeal the development special magistrate's decision in accordance with section 31-46, below.

(Ord. No. 4054, §§ 2, 3, 12-3-14)

An aggrieved person may appeal a final decision of the Development special magistrate within 30 days of a decision or order, rendered under this article, by seeking judicial review of the final decision. Aggrieved persons may include the applicant, an affected party, or the city manager.

(Ord. No. 4054, §§ 2, 3, 12-3-14)

The city council shall establish by resolution the appropriate schedule of fees, charges, and expenses, and shall establish a collection procedure for appeals, actions, requests, and other matters pertaining to the development special magistrate hearings. The city manager shall have the authority to expend any funds so appropriated by the city council for purposes and activities authorized herein or by any such ordinance(s).

(Ord. No. 4054, §§ 2, 3, 12-3-14)