This chapter shall be enforced by the town commission.

(Ord. No. 95, § XIII, 11-17-1976)

Notwithstanding any portion of this chapter to the contrary, the town commission may, in its sole discretion, grant a special exception for a use that would not be appropriate generally or without restriction throughout the particular zoning district, but which, if controlled as to number, area, location, or relation to the neighborhood, will not adversely affect the public health, safety, comfort, good order, appearance, convenience, morals and the general welfare. A special exception from the terms of this chapter shall not be granted by the town commission unless and until the requirements of this division are fulfilled.

(Ord. No. 95, § XIII.E, 11-17-1976)

A written application for a special exception shall be submitted to the town clerk in a form prescribed by the town commission, together with a filing fee of $250.00 and a deposit for costs sufficient to cover the engineering and legal fees, expenses of publication, postage, and any other expenses that may be incurred by the town in connection with the application, it being intended that the town shall be reimbursed for all costs incurred in connection with any application for special exception.

(Ord. No. 95, § XIII.E.1, 11-17-1976)

(a)

The burden of proof on the issue of whether the special exception use will comply with the requirements of this chapter remains at all times on the applicant. No special exception shall be approved by the town commission until the applicant establishes the following criteria by competent substantial evidence:

(1)

The proposed use will not adversely affect the public health, the public interest, safety, comfort, good order, appearance, convenience, or the general welfare;

(2)

The proposed use will not be detrimental to neighboring property and improvements, and the use will be compatible and in harmony with uses provided for in the zoning district;

(3)

Noise, glare, exterior lighting, odor effects and other effects particular to the use will not negatively impact surrounding properties;

(4)

The proposed use is consistent with the comprehensive plan and this Code; and

(5)

The proposed use is compatible with the existing land use pattern and future uses designated by the comprehensive plan. Factors by which compatibility of the proposed use shall be reviewed include scale, height, mass and bulk, design, intensity, and character of activity.

(b)

Before granting any special exception, the town commission shall find that the applicant has established the above criteria by competent substantial evidence.

(c)

In granting any special exception, the town commission may prescribe appropriate conditions, limitations, requirements and safeguards in conformity with this chapter and the comprehensive plan. A violation of such conditions, limitations, requirements or safeguards, when made a part of the terms under which the special exception is granted, shall be deemed a violation of this chapter. Further, if any condition, limitation, requirement or safeguard is violated, the town commission may, after giving proper notice to the property owner, revoke the granting of the special exception at a public hearing. The granting of the special exception may be reinstated by the town commission or designee, if the circumstances leading to the revocation are corrected.

(d)

The town commission may prescribe a reasonable time limit within which the action for which the special exception is required shall be commenced or completed or both.

(Ord. No. 95, § XIII.E.2—4, 11-17-1976; Ord. No. 422, § 2, 1-28-2020)

(a)

Hearings. Before granting any special exception, the town commission shall hold two public hearings to consider the application. The hearings shall be held in accordance with F.S. § 166.041(3)(c)2.a., as amended from time to time.

(b)

Notice.

(1)

Town notice requirements. Notice for a special exception application shall be made in accordance with F.S. § 166.041(3)(c)2., as amended from time to time. The town shall be responsible for this notice and shall also post the notice upon the town hall bulletin board and the town's website. The applicant shall be responsible for the costs of these notice requirements.

(2)

Applicant notice requirements. The applicant shall comply with the following notice requirements.

a.

Posted notice. Notice of the public hearings shall be posted on the property that the special exception is being requested. Such signs shall be able to withstand normal weather events and shall meet the number, size and font requirements established by the town.

b.

Mailed notice. A written notice of both public hearings shall be sent by certified mail, return receipt requested, to all record owners of real property located within 300 feet of any part of the real property involved in the special exception application. The notice form shall be in a form provided by or otherwise approved by the town.

c.

Timing of notice. The posting and mailing of the notice shall be completed at least 15 days prior to the date of the first hearing.

d.

Proof of notice. At least five days prior to the first hearing, the applicant shall present an affidavit, including a copy of the mailed notice and a photograph of the posted notice. The affidavit shall indicate that the applicant has fully and timely complied with the posting and mailing requirements herein and shall include the names and addresses of the property owners notified by the applicant and whether any of the notices were returned undelivered. If the applicant fails to adequately establish compliance with the notice requirements, the town manager may cancel the hearings until such time that the applicant complies with said requirements.

(Ord. No. 95, § XIII.E.5, 11-17-1976; Ord. No. 154, 9-10-1984; Ord. No. 252, § X, 12-15-1998; Ord. No. 422, § 2, 1-28-2020)

Editor's note— Ord. No. 422, § 2, adopted January 28, 2020, renamed § 82-74, which previously read as "hearing," to read as set out above.

If the applicant meets the requirements set forth in this division, the town building official shall grant administrative variances for certain building encroachments into the setbacks that do not exceed one foot and for certain concrete equipment pads that do not encroach more than three feet into the setbacks.

(Ord. No. 95, § VIII.F, 11-17-1976; Ord. No. 225, § 2, 1-12-1994; Ord. No. 292, § I, 11-19-2002; Ord. No. 327, § 2, 9-12-2006; Ord. No. 330, § 2, 2-27-2007; Ord. No. 361, § 2, 2-22-2011)

An administrative variance from the terms of this chapter shall be granted if the following requirements and conditions are fulfilled:

(1)

The applicant shall submit a written application for an administrative variance to the town building official in a form prescribed by the town building official, together with a filing fee of $400.00. The town building official may require that the applicant deposit monies into a town escrow account to cover the costs and professional fees, including attorney fees the town incurs to review the application. Any monies not expended shall be returned to the applicant. The professional fees and costs incurred in connection with the town's review of any application for an administrative variance must be paid prior to the town's issuance of the variance.

(2)

The applicant shall provide the town building official with a certificate certifying the applicant's ownership of the property which is the subject of the administrative variance, and certifying the name and address shown in the official records of the Martin County Tax Collectors Office of all owners of property located adjacent to the property which is the subject of the administrative variance.

(3)

The applicant shall provide the town building official all relevant information and documents which support the administrative variance application for the encroaching structure(s) including: (i) a building permit with the building permit application number indicated on it; (ii) permit drawings, plans, or surveys; and (iii) Two 24″ × 36″ and one 8.5″ × 11″ current as-built surveys. The as-built surveys shall:

a.

Be prepared by a licensed surveyor registered in Florida in accordance with the minimum technical standards established by the Florida Board of Professional Surveyors and Mappers;

b.

Be dated not more than 90 days prior to the application;

c.

Contain the address of the property, including street name and number, and show the proximity of all boundary streets;

d.

Show the location of all buildings, structures, and above-ground encroachments and improvements;

e.

Show all setback requirements under the Town Code;

f.

Show the location and identification of all encroachments into setbacks under this Code, including the type of improvement comprising the encroachment and specifically identifying any encroachment that is the subject of the application;

g.

Contain a certification to the Town of Sewall's Point; and

h.

Contain any other information the town building official may require to demonstrate that the applicant is entitled to an administrative variance.

(4)

The applicant shall provide the town building official with either:

a.

Letters of no objection from all adjacent property owners; or

b.

Proof that a copy of the administrative variance application has been sent to all adjacent property owners, at the mailing address listed in the tax collector's office, by certified mail return receipt requested with a written notice informing them that any objections they may have to the requested administrative variance must be filed with the town clerk within 15 days of the date that the notice was mailed.

(5)

The town building official shall grant the variance if the building official finds that all of the following criteria are met:

a.

The building encroachment is no greater than one foot, or the equipment pad encroachment is no greater than three feet, into the setback requirement in effect on the date that the encroachment was created;

b.

Either letters of no objection have been filed by the applicant for all adjacent property owners, or 15 days have passed since the mailing to adjacent neighbors informing them of their right to file an objection with the town clerk, and no letters of objection to the administrative variance application have been timely filed.

c.

The structure(s) for which a variance is sought was constructed under a valid permit.

d.

The setback violation was a good faith error and was not intentional.

e.

Provided the setback violation existed prior to September 26, 2006.

(Ord. No. 95, § XIII.F.1, 11-17-1976; Ord. No. 225, § 2, 1-12-1994; Ord. No. 263, 8-17-1999; Ord. No. 292, § II, 11-19-2002; Ord. No. 327, § 2, 9-12-2006; Ord. No. 330, § 2, 2-27-2007; Ord. No. 361, § 3, 2-22-2011)

Upon approval of the administrative variance, the town clerk shall record the building official's approval in the Martin County, Florida public records. The applicant shall be responsible for the recording costs incurred by the town, and shall pay the town such costs prior to the recordation of any documents.

(Ord. No. 95, § XIII.F.2, 11-17-1976; Ord. No. 225, § 2, 1-12-1994; Ord. No. 292, § III, 11-19-2002; Ord. No. 327, § 2, 9-12-2006)

An administrative appeal from a decision of the building official under this section may be taken by the applicant under section 82-101 of the Code. The administrative appeal may proceed concurrently with an application for a variance before the board of zoning adjustment, at the election of the applicant.

(Ord. No. 95, § XIII.F.5, 11-17-1976; Ord. No. 225, § 2, 1-12-1994; Ord. No. 292, § VI, 11-19-2002; Ord. No. 327, § 2, 9-12-2006)

Editor's note— Formerly, § 82-146.

All applicants appearing before the board of adjustment must present their case in person or through their authorized agent.

(Ord. No. 95, § XV.C, 11-17-1976; Ord. No. 327, § 2, 9-12-2006)

The board of zoning adjustment shall interpret the zoning map in cases of uncertainty and fix the exact location of boundaries, pursuant to the provisions of this division relating to administrative review.

(Ord. No. 95, § XV.B.3, 11-17-1976; Ord. No. 111, pt. 1, § 16, 9-13-1978)

The board of zoning adjustment shall hear and decide where it is alleged there is an error in any order, requirement, decision or determination made by the building department, building official or other town officer pursuant to the provisions or enforcement of this chapter. Such appeal shall be taken within 30 days of the order, requirement, decision or determination appealed, and shall be commenced by filing a written notice of appeal with the officer from whom the appeal is taken and with the chair of the board of zoning adjustment. The notice of appeal shall specify particularly the grounds for the appeal. The chair shall thereafter promptly fix a reasonable time for the hearing of the appeal, and give public notice of the date of the hearing by posting notice on the bulletin board of the town hall as well as giving written notice by mail, postage prepaid, to the appellant, parties in interest and any other parties the chair may designate. In exercising its powers, the board of zoning adjustment may, in conformance with the provisions of this chapter, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed, and to that end shall have all the powers of the official from whom the appeal is taken. At the time the notice of appeal is filed, the appellant shall pay the town clerk a filing fee of $750.00. The filing fee shall be used to cover the town attorney's fees, the board of zoning adjustment attorney's fees, other professional fees and any expenses related to the appeal. If the board of zoning adjustment or a court of competent jurisdiction reverses or modifies the order, requirement, or decision or determination appealed, then the appellant shall be entitled to a refund of $500.00 from the filing fee.

(Ord. No. 95, § XV.B.1, 11-17-1976; Ord. No. 251, § I, 12-15-1998)

The board of zoning adjustment may authorize in specific cases such variances from the terms of this chapter as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of such terms would result in unnecessary hardship. A variance from the terms of this chapter shall not be granted by the board of zoning adjustment unless and until the applicant complies with the requirements in this subdivision.

(Ord. No. 95, § XV.B.2, 11-17-1976; Ord. No. 416, § 3, 10-23-2018; Ord. No. 421, § 7, 2-25-2020)

A written application for a variance shall be submitted in a form prescribed by the board of zoning adjustment, and a filing fee of $75.00 shall be paid to the town clerk, together with a deposit for costs sufficient to cover any costs of publication, mailings or transcribing minutes, costs of town engineer and town attorney and any other costs, which costs may be advanced by the town. It is the intention of the town commission that the town be reimbursed for all costs expended on behalf of the applicant for variance for any and all costs incurred for the applicant's benefit.

(Ord. No. 95, § XV.B.2.a, 11-17-1976; Ord. No. 120, § 1, 5-14-1980)

(a)

A written application for a variance must demonstrate that:

(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 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 owners of other lands, buildings or structures in the same zoning district.

(4)

Literal interpretation of the provisions of this chapter would deprive the applicant of rights commonly enjoyed by other properties in the same 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)

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

(b)

No nonconforming uses of the neighboring lands, structures or buildings in the same district, and no permitted use of lands, structures or buildings in other districts, shall be considered grounds for the issuance of a variance.

(Ord. No. 95, § XV.B.2.b, c, 11-17-1976; Ord. No. 111, pt. 1, §§ 15, 16, 9-13-1978)

Notice of hearing regarding a proposed variance is required as provided in section 2-325.

(Ord. No. 95, § XV.B.2.d, 11-17-1976; Ord. No. 111, pt. 1, § 17, 9-13-1978; Ord. No. 252, § XI, 12-15-1998)

(a)

The board of zoning adjustment shall make findings that the requirements of section 82-113(a)(1), (2), (3), (4), (5) and (6) have been met by the applicant for the variance.

(b)

The board of zoning adjustment shall further make a finding that the reasons set forth in the application justify the granting of the variance and that the variance is the minimum variance that will make possible reasonable use of the land, structures or buildings.

(c)

The board of zoning adjustment shall further make a finding that the granting of the variance will be in harmony with the general purpose and intent of this chapter and will not be injurious to the neighborhood or otherwise detrimental to the public welfare.

(Ord. No. 95, § XV.B.2.e—g, 11-17-1976; Ord. No. 111, pt. 1, § 17, 9-13-1978)

In granting any variance, the board of zoning adjustment may prescribe appropriate conditions and safeguards in conformance with this chapter. Violation of such conditions and safeguards, when made part of the terms under which a variance is granted, shall be deemed a violation of the chapter and punishable according to law, The board of adjustment shall prescribe a time limit within which the action for which the variance is required shall be begun or completed, or both.

(Ord. No. 95, § XV.B.2.h, 11-17-1976; Ord. No. 111, pt. 1, § 18, 9-13-1978; Ord. No. 327, § 2, 9-12-2006)

(a)

Generally. The board of zoning adjustment may authorize conditional uses in accordance with this subdivision.

(b)

Application process. The applicant shall complete and submit an application for the conditional use to the town along with the appropriate filing fee. The filing fee will be approved from time to time by resolution. The town may also request a deposit from the applicant sufficient to cover the anticipated costs, including but not limited to, plan review fees, attorney fees, and the administrative costs of the hearing. The applicant shall be required to reimburse the town for all costs, fees and expenses incurred in connection with the application for the conditional use.

(Ord. No. 433, § 2, 5-25-2021)

(a)

Hearings. Before granting a conditional use, the board of zoning adjustment shall hold a public hearing to consider the application. The board will review the application according to the objective criteria set forth below and may request additional documentation from the applicant as needed. The burden of proof to demonstrate that the use meets the intent of this criteria remains at all times on the applicant. Before granting any conditional use, the board must find that the applicant has established the criteria by competent substantial evidence. The board shall approve the permit, approve the permit with conditions, or deny the permit.

(b)

Notice. The notice of the public hearing shall include, at a minimum, the date, time and location of the hearing, the address of the subject property, and the proposed conditional use.

(1)

Posted notice. The applicant shall post the notice on the property that is the subject of the application. Such notice shall be able to withstand normal weather events and shall meet the number, size and font requirements established by the town.

(2)

Mailed notice. The applicant shall mail a notice of the public hearing to all record owners of real property located within 300 feet of any part of the subject property. The notice shall be sent by certified mail, return receipt requested and it shall be in a form approved by the town.

(3)

Timing of notice. The posting and mailing of the notices shall be completed at least 15 days prior to the date of the hearing.

(4)

Proof of notice. Prior to the hearing, the applicant must establish, to the reasonable satisfaction of the town, compliance with the notice requirements. If the applicant fails to adequately establish compliance with the notice requirements, the town manager may cancel the hearing until such time that the applicant complies with such requirements.

(Ord. No. 433, § 2, 5-25-2021)

(a)

Objective criteria. Each application for a conditional use permit shall be reviewed against the following objective criteria established to prevent or minimize adverse effects upon other adjacent properties and the surrounding neighborhood. The applicant shall establish the following criteria by competent substantial evidence.

(1)

Compatibility. The use will be compatible with the existing or permitted uses of adjacent property. Factors by which compatibility of the use shall be reviewed include scale, height, mass and bulk, design, intensity, and character of activity. The town may request design changes to mitigate the impacts upon adjacent properties and the surrounding neighborhood.

(2)

Noise. This use will comply with section 22-68 general prohibitions of noise; however, special events which exceed this standard may be permitted by section 22-70 temporary permit. A noise impact analysis by a qualified professional may be required.

(3)

Odor. There shall be no emission of odorous gases or other odorous matter in such quantities as to be offensive, obnoxious or unpleasant beyond the property line of which the principal use is located. Any process, including the preparation of food, which may involve the creation and emission of any such odors, shall be provided with both a primary and secondary safeguard system so that odor control may be maintained in the event of a failure in the primary safeguard system.

(4)

Lighting and glare. There shall be no direct glare visible from any residential district caused by unshielded floodlights or other sources of high intensity of lighting. Lighting shall complement the existing building and shall not cause a glare to passing pedestrians or vehicles or residential districts. Seasonal lighting and decoration shall be allowed.

(5)

Signage. Signs, if any, and proposed exterior lighting will be so designed and arranged so as to promote traffic safety and to eliminate or minimize any undue glare, incompatibility, or disharmony with adjoining properties and shall otherwise comply with chapter 74 of this Code.

(6)

Traffic flow and safety. Adequate ingress and egress will be obtained to and from the property, with particular reference to automotive and pedestrian safety and convenience, traffic flow and control, and access in case of fire or other emergency as determined by recognized engineering or other professional standards.

(7)

Parking. Adequate off-street parking, loading areas, and adequate stacking will be provided, without creating undue noise, glare, odor, or other detrimental effects upon adjoining properties.

(8)

Hours of operation. The proposed use will not constitute a nuisance or hazard because of the number of persons who will attend or use the facility, or because of the hours of operation.

(b)

Conditions of approval. The board of zoning adjustment may prescribe conditions, limitations, requirements and safeguards to a conditional use permit to prevent or minimize adverse effects on adjacent properties and the surrounding neighborhood. It is a violation of this Code for any person to violate or to refuse or fail to comply with any term or condition of this permit. If a term or condition is violated, the board may, after giving proper notice of a public hearing, apply additional conditions, suspend or revoke the conditional use permit, or recommend to the town the use of any other means of enforcement available to the town at law or in equity. The board may apply any one or more of these remedies for a violation, and it may reinstate a conditional use permit if all violations are adequately addressed. If the permittee provides written consent to the revocation of the permit, the town manager is authorized to revoke the permit and notify the board. Conditions of approval include, but are not limited to, the following:

(1)

Licenses and permits. The use is licensed, permitted and insured in accordance with all applicable laws, ordinances, rules and regulations, and the owner has a valid Martin County business tax receipt for the use.

(2)

Hours of operation. Hours of operation may be limited to ensure compatibility with adjoining properties.

(3)

Buffering. Additional buffering beyond that which is required by the Code may be required in order to protect and provide compatibility with adjoining properties.

(4)

Screening devices. Light shields or other screening devices may be required to avoid offsite glare.

(5)

Other conditions. Any other reasonable conditions to permit development of the town without creating adverse effects on adjacent properties, the surrounding neighborhood, or the community at large.

(c)

Term of approval. An approved conditional use permit shall run with the property, and the ownership of a conditional use permit may be transferred to another party. The term of the approval shall be as follows:

(1)

Timeline. The board of zoning adjustment may prescribe a reasonable time limit within which certain required actions related to the conditional use shall be commenced or completed or both.

(2)

Extension. No later than 60 days prior to the expiration of a conditional use permit, an applicant may deliver a written request for an extension of the permit to be considered by the board of zoning adjustment. The applicant shall deliver the written request to the town manager. If the applicant establishes that the permittee has been working diligently to meet the established timeline(s), the board may grant a reasonable extension of the timeline(s). If the applicant fails to deliver the written request for an extension in accordance with the 60 day timeline, no extension shall be considered by the board.

(3)

Abandonment or discontinuance. When a conditional use is discontinued or abandoned, after establishment, for a period of six months or more, the use shall not be reestablished without a new application approved in accordance with the requirements of this section.

(Ord. No. 433, § 2, 5-25-2021)

The applicant or the town may appeal the decision of the board of zoning adjustment to the town commission. If the applicant wishes to appeal the decision, he or she is required to deliver a written notice of appeal to the town manager within 15 days of the written decision of the board of zoning adjustment. If the town appeals the decision, it will notify the applicant of the appeal and the date, time, and location of the town commission hearing. The hearing on the appeal will be scheduled at the next available town commission meeting. The appeal will not be a hearing de novo, but shall be limited to appellate review of the record created before the board of zoning adjustment. The town commission's decision shall be final.

(Ord. No. 433, § 2, 5-25-2021)