There is created a town planning and zoning board.

(Ord. No. 1558, § 2(Exh. A), 8-10-10)

(1)

Membership/quorum: The planning and zoning board membership and quorum requirements for zoning matters and design review matters are as follows:

(a)

Zoning matters: The planning and zoning board shall consist of five members and a first alternate member and a second alternate member. At least three of the members or alternates shall each meet at least one of the following:

1.

Florida-licensed general contractor or a construction management professional with at least three years of professional experience as a construction project manager, construction superintendent or construction estimator;

2.

Florida licensed PE or a civil, mechanical, electrical, chemical or environmental engineer with a baccalaureate degree in engineering and three years of professional experience;

3.

Certified planner (AICP) or a planning professional with a graduate degree in planning from a program accredited by the Planning Accreditation Board with at least three years of professional planning experience or a bachelor's degree in planning from a program, accredited by the Planning Accreditation Board (PAB) with at least three years of professional planning experience;

4.

Florida-licensed landscape architect with at least three years of professional experience;

5.

Registered interior designer with at least three years of professional experience;

6.

Florida-licensed attorney with at least three years of professional experience; or

7.

Florida-licensed architect.

8.

Education and/or experience in sustainability and resiliency, which may include environmental science.

9.

Real estate developer with at least three years of professional experience, either as the principal or executive.

10.

Active Florida-licensed real estate broker or realtor with at least three years of professional experience.

(b)

Alternate participation: Alternates shall be subject to the same attendance and participation requirements as members. Alternates may participate in all board discussions but may not vote unless sitting as a substitute for a member. In the event a member is absent or unable to participate in an item before the board, the first alternate or if the first alternate is unavailable, the second alternate, shall fill the absent or recused member's position for the duration of that member's absence.

(c)

All board matters: One town commissioner shall be a liaison, non-voting representative without a vote at all planning and zoning board meetings.

(2)

Minimum board member qualifications: All board members must have been a town resident for a minimum period of one year.

(3)

Officers: The board shall elect one of its members as chairman and one of its members as vice-chairman, at its first regular meeting in April of each year. In the event of the resignation, removal, or inability of the chairman to serve, the vice-chairman shall succeed to the chairman position for the unexpired term; and the board shall, thereupon, elect one of its members as vice-chairman for the unexpired term. The chairman shall preside at all meetings. In the chairman's absence, the vice-chairman shall preside. The chairman shall submit all board reports and recommendations to the town commission, by and through the chairman, vice-chairman or the town commission liaison member. The town shall provide a secretary for the board and the town clerk shall be custodian of all records, books and journals of the board.

(4)

Board member term(s): Each commissioner shall be responsible for one board member appointment. The first and second alternates shall be appointed at-large by the majority vote of the Commission present at the meeting. The term of each board member and alternate appointment shall begin on the last Thursday of April of the year in which the board member or alternate is appointed and end when a successor is appointed or on the last Thursday in April, whichever dates comes first. The term of any board member or alternate filling a vacancy created on the board as provided in paragraph (5) shall begin at the time of the appointment and end the last Thursday in April or whenever a replacement is appointed.

(5)

Vacancies: A vacancy shall exist: (1) on the date that any member or alternate ceases to possess the minimum required membership qualifications provided herein; (2) when a board member or alternate has been absent from three consecutive regularly convened board meetings or has been absent from five regularly convened board meetings within a board year; or (3) for members if the appointing commissioner resigns or his position otherwise becomes vacant during his/her term. Vacancies on the board shall be filled by appointment for the unexpired term in the same manner as original appointments are made provided however, if the seat shall remain vacant longer than a three-month period for any reason, the town commission may collectively, by majority vote, appoint a temporary member until such commission position is filled in accordance with the Town Charter and Code.

(6)

General regulations governing members: Board members and alternates shall be appointed in accordance with all applicable state, county and town ethics laws, rules and regulations. Appointed members and alternates of the board shall not, during their term, hold any other public office, paid position or serve on any other board under town government, except as a temporary board member, or that of a voluntary fireman.

(7)

Expenditures; indebtedness: The town commission may authorize the expenditure by the planning and zoning board of such funds as the town commission may deem necessary to perform the requirements of this chapter. The town commission may appropriate from the general fund as set up in the annual budget and such sums as it may from time to time authorize the board to expend. The board may not incur indebtedness without prior commission approval.

(Ord. No. 1523, § 2, 5-12-09; Ord. No. 1558, § 2(Exh. A), 8-10-10; Ord. No. 1559, § 2, 9-14-10; Ord. No. 1598, § 2, 1-15-13; Ord. No. 1618, § 2, 3-11-14; Ord. No. 1648, § 2, 6-14-16; Ord. No. 18-1689, § 2, 9-12-18; Ord. No. 20-1712, § 2, 6-9-20; Ord. No. 22-1732, § 2, 11-15-22)

(1)

Board year: The board year shall commence on the last Thursday of April in each year.

(2)

Meetings on zoning and design review matters/timeframe: Regular board meetings for zoning and design review matters shall be held on the last Thursday of each month. The chair may call special meetings and may cancel or continue meetings as may be necessary.

(3)

Location of all board meetings: All board meetings shall be held in the Town Hall or Community Center.

(Ord. No. 1558, § 2(Exh. A), 8-10-10; Ord. No. 1598, § 2, 1-15-13; Ord. No. 1618, § 2, 3-11-14; Ord. No. 1618, § 2, 3-11-14; Ord. No. 18-1689, § 2, 9-12-18)

(1)

Zoning matters: The planning and zoning board shall act as an advisory board to the town commission on zoning matters and design review matters. The boards' powers and duties are as follows:

(a)

To perform its responsibilities as the local planning agency pursuant to local and state government comprehensive planning and land development regulations (F.S. Ch. 163);

(b)

To review and make recommendations to the town manager and the town commission regarding the adopting and amendment of the official zoning map; the land development regulations amendments; zoning district boundary changes; and comprehensive plan amendments;

(c)

To review and make recommendations to the town commission, on applications pertaining to site plans (if applicable) zoning changes, special use permits, conditional use variances vested rights and any other zoning applications;

(d)

To conduct such studies and investigations required under the Town Code and/or requested by the town commission and as needed from time to time to sit in a joint session with the town commission as requested by the town commission; and

(e)

The planning and zoning board shall have such other duties pertaining to zoning matters as prescribed by law, this section and the Town Code.

(2)

Design review: The planning and zoning board shall conduct a design review for all structures to be constructed and renovated within town limits on the terms outlined below.

(3)

FEMA review: The planning and zoning board shall act as the variance and appeals board pursuant Chapter 42, "Floods," Division 6, Variance Procedures, sections 42-111 through 42-117.

(Ord. No. 1524, § 2, 6-09-09; Ord. No. 1558, § 2(Exh. A), 8-10-10; Ord. No. 1598, § 2, 1-15-13; Ord. No. 1618, § 2, 3-11-14; Ord. No. 18-1689, § 2, 9-12-18)

The design review process is set forth as follows:

(a)

Design review process.

(1)

Purpose. This section is intended to promote excellence in architectural and urban design; preservation of the town's historic and architectural and neighborhood character; and desirable urban growth and development. To implement this goal, the planning and zoning board shall review and evaluate applications as to whether the design of new developments and/or improvements within the town are consistent with and in conformance with the design guidelines set forth in the Town Code. The design guidelines are attached thereto as Exhibit A [at the end of this chapter] provided that the town commission may amend said guidelines from time to time via resolution. The guidelines as amended, shall govern and be applied as fully set forth herein.

(2)

Design review procedure:

a.

All applications for new developments or improvements that are subject to the town's adopted design guidelines shall be referred to the planning and zoning board for review and consideration.

b.

The board shall review each application whether for development of single-family, multifamily, commercial or other districts for conformity with the town's adopted design guidelines and approve, approve with conditions, or disapprove the design review application. With regard to the design review process, no applicant shall be required to appear before the board more than twice per application.

c.

Meetings held by the board for review and recommendations of applications shall be arranged to permit participation by the person or group making the application or request and representatives of such person or group, if desired. Architectural plans and drawings of the building facades, lists of finish materials and other information necessary to provide adequate insight into the proposed development/improvement shall be provided to the board by the person or group making the proposal or request.

(3)

Design review application fees are set forth in the town designated fee schedule.

(4)

Design review applications which are made in conjunction with other development approval applications may be reviewed and considered concurrently with related development approval applications.

(Ord. No. 1524, § 2, 6-09-09; Ord. No. 1558, § 2(Exh. A), 8-10-10; Ord. No. 1598, § 2, 1-15-13; Ord. No. 1618, § 2, 3-11-14; Ord. No. 1648, § 3, 6-14-16; Ord. No. 18-1689, § 2, 9-12-18)

Editor's note— Ord. No. 18-1689, § 2, adopted Sept. 12, 2018, changed the title of § 90-18 from "Design review board" to read as herein set out.

90-19.1 Permits. No building shall be erected, constructed, altered, moved, converted, extended or enlarged without the owner or owners first having obtained a building permit from the building official. Such permit shall require conformity with the provisions of these regulations. When issued, such permit shall be valid for a period of 180 days. However, the town manager or designee may grant an extension to the permit due to an uncontrollable act of nature of up to 180 days.

90-19.2 The building official reviews all applications for building permits or certificates of occupancy for compliance with the provisions of the zoning code and all other applicable codes. The building official shall issue a building permit if the applicant demonstrates that the proposed development is in compliance with all applicable codes and in compliance with any and all development orders issued in connection with the project, and that all fees have been paid.

90-19.3 Permit card. Upon approval of plan specifications and application for permit and payment of required fees, the building official shall issue a permit. The building official shall issue a permit card for each permit which shall bear the description of the property, identify the work being done, identify the owner and contactor and other pertinent information, and such card shall be maintained in a conspicuous place on the premises effected there by the hours of work and available on demand for examination.

90-19.4 Permit requirements. The Florida Building Code as amended is hereby adopted as the regulation governing the construction of buildings and structures in the town. All qualified applicants desiring a permit to be issued by the building official as required shall file an application in writing on a form provided by the town. No development shall occur until and unless the building official has issued a building permit.

90-19.5 Design guidelines. The town has adopted design guidelines intended to provide direction and suggestions for all development. The purpose of the planning and zoning board when conducting design review is to interpret those guidelines and provide guidance to the applicants as to how the design should be revised to more closely approximate or reflect the town's adopted guidelines. The applicant shall then incorporate those suggestions prior to proceeding to building permit.

90-19.6 Single-family and two-family development shall be reviewed by the planning and zoning board. The following types of applications shall require noticing as described below:

(1)

Construction of new single-family homes.

(2)

Partial demolition and rebuilding of at least 50 percent of the square footage of a single-family home where the exterior facade of the structure is affected.

(3)

An addition of at least 50 percent of the square footage of the existing single-family home.

The applicant shall notify the public of the planning and zoning board hearing date and location, on the proposed application as follows:

a.

The applicant shall post a notice on the property one week prior to the planning and zoning board meeting and remove the notice three days after the conclusion of the planning and zoning board meeting. A notice, 18 inches by 24 inches, shall be placed in a prominent place on the property by the applicant, denoting the following:

REQUEST FOR:_______________________

PLANNING AND ZONING BOARD MEETING:

DATE AND TIME

TOWN HALL
9293 Harding Avenue
Surfside, FL 33154

COMPLETE INFORMATION REGARDING THE APPLICATION IS AVAILABLE BY CONTACTING THE TOWN HALL.

b.

The applicant shall mail written courtesy notices via certified mail, to the abutting single-family property owners and single-family property owners parallel to the subject property line across any right-of-way, of the planning and zoning board meeting date and location ten days prior to the meeting.

c.

The applicant shall provide the town the corresponding certified mail receipts, indicating the notices have been mailed and provide evidence that the sign has been posted three days prior to the planning and zoning board meeting.

90-19.7 The following shall be exempt from planning and zoning board and design review; however, the design guidelines shall be followed:

(1)

Interior or rear yard fences.

(2)

Interior renovations.

(3)

Single-family and two-family awnings.

(4)

Screens.

(5)

Driveways.

(6)

Re-roofs.

(7)

Trellis.

(8)

Rooftop photovoltaic solar systems.

(9)

Sheds.

(10)

Front yard fences and gates in the H30A and H30B districts with design review approval from town planner.

(11)

Garage conversions.

(12)

Carports.

(13)

Window signs in SD-B40.

(14)

Business district SD-B40 awnings.

(15)

Wall opening (window and door) changes on existing homes not visible from a public right-of-way.

(16)

Rear yard pools.

(17)

Rear yard decks.

(18)

Rooftop mechanical equipment.

(19)

Ground-level mechanical not visible from a public right-of-way.

90-19.8 The following are required for submittal to the planning and zoning board for design review applications:

(1)

Application form: Each application shall describe the land on which the proposed work is to be done by legal description, and address shall show the use or occupancy of the building or structure; shall be accompanied by plans and specifications as required; shall state the value of the proposed work; shall give such other information as may reasonably required by the town manager or designee and the Florida Building Code; shall describe the proposed work and shall be attested to by the applicant and/or property owner.

(2)

Ownership affidavit.

(3)

Survey less than one year old. A survey over one year is sufficient as long as the property has not changed ownership and the owner provides an affidavit that no changes occurred since the date of the survey.

(4)

Two full-sized sets of complete design development drawings (24″ × 36″ sheets) signed and sealed by a registered architect. Eight reduced sized (11″ × 17″) copies of the plans.

(5)

Surrounding context: Provide recent photographs, as visible from the street, of the subject property and of the adjacent two (2) homes on each side of the subject property on the same side of street. If the adjacent lot(s) are vacant then the next adjacent home(s) shall be utilized.

(6)

Site plan (minimum scale of 1″ = 20′):

a.

Show entire parcel(s) with dimensions and lot size in square feet.

b.

Show existing and proposed buildings with square footage.

c.

Show any buildings to be removed.

d.

Show all setbacks.

e.

Show dimensions and locations of all existing and proposed right-of-ways, easements and street frontage, including sidewalks, curb and gutter and planting strips.

f.

Show all existing and proposed site improvements, including, but not limited to, all utilities, retaining walls, fences, decks and patios, driveways and sidewalks, signs, parking areas, and erosion control features.

g.

Show the location of all existing and proposed trees, vegetation, palms and note tree species.

h.

Show locations and dimensions of parking spaces and lot layout.

i.

Show driveway entrance width and setbacks from property line.

(7)

Architectural elevations (Minimum scale of ⅛″ = 1′):

a.

Provide color elevations, showing all material finishes, textures and landscaping for all elevations of the proposed building(s). They should include, at a minimum:

b.

All exterior materials, colors and finishes, keyed to samples provided.

c.

Roof slopes and materials and color.

d.

Detail of doors, windows, garage doors.

e.

Lighting locations and details.

f.

Dimensions of structure(s)—height, width, and length.

g.

Deck, railing, stairs details including materials, colors, finishes, and decorative details.

h.

Exposed foundation treatment.

i.

Gutters and eaves.

j.

Abutting structure heights.

90-19.9 Effective period of planning and zoning board design review approval. A design review approval from the planning and zoning board shall be effective until the development is completed except that if, after 24 months from the date of the approval by the planning and zoning board a building permit for a principal building has not been issued and remains in effect, the approval shall be null and void.

(1)

Extensions for good cause, not to exceed a total of one year for all extensions, may be granted by the town commission, at its sole discretion, provided the applicant submits a request in writing to the town manager or designee in advance of the expiration of the original approval, setting forth good cause for such an extension. For the purpose of this section, a building permit for a principal building shall cease to be in effect once required inspections have lapsed or once a certificate of completion or certificate of occupancy is issued.

(2)

All approvals which have been granted prior to the effective date of this chapter, shall be null and void and of no further force or effect if not utilized within two years after the effective date of this chapter, unless vested rights are demonstrated pursuant to subsection 90-5(11) of the zoning code. The foregoing provision of this paragraph shall not apply if the governmental approval expressly established a specific time limitation for utilizing the approval. In such instances, the time limitation established by such resolution shall prevail.

(Ord. No. 1514, § 2, 4-14-09; Ord. No. 1558, § 2(Exh. A), 8-10-10; Ord. No. 1598, § 2, 1-15-13; Ord. No. 1604, § 2, 8-13-13; Ord. No. 1618, § 2, 3-11-14; Ord. No. 1623, § 2, 7-8-14; Ord. No. 1650, § 2, 8-10-16; Ord. No. 17-661, § 3, 5-9-17; Ord. No. 18-1689, § 2, 9-12-18; Ord. No. 23-1745, § 2, 6-13-23)

(1)

Generally. Review and approval of a site plan by staff reviewing agencies and the planning and zoning board, and the town commission is required prior to any development of land in the town.

(2)

Process. Submit plans (sets to be determined by town staff as appropriately needed), which are distributed to the staff members of the development review group (DRG).

(a)

The DRG member shall review the site plan and prepare comments. The comments shall be forwarded to the town manager or designee. The comments shall be addressed by the applicant, if applicable. The town manager or designee shall hold a development review group meeting with appropriate town staff and the applicant to discuss the comments. In reviewing an application each reviewer shall consider, and comment as appropriate, on applicable issues relevant to their particular area of expertise, the extent to which:

i.

The development, as proposed, conforms to the comprehensive plan and the zoning code;

ii.

The development, as proposed, will have a favorable or unfavorable impact on the environment and natural resources, including a consideration of the means and estimated cost necessary to minimize the adverse impacts, if any;

iii.

The development, as proposed, will have a favorable or unfavorable impact on the economy of the Town of Surfside;

iv.

The development, as proposed, will efficiently use or unduly burden water, sewer, solid waste disposal, education, recreation or other necessary public facilities which have been constructed or planned and budgeted for construction in the area;

v.

The development, as proposed, will efficiently use or unduly burden or affect public transportation facilities, including mass transit, public streets, and roads, which have been planned and budgeted for construction in the area, and if the development is or will be accessible by private or public roads or streets.

vi.

The development, as proposed, is consistent with the community character of the immediate neighborhood. In addition to consistency there must be congruity between the subject development and neighboring improvements and surroundings including but not limited to form, spacing, heights, setbacks, materials, color, rhythm and pattern of architectural or aesthetic interest or value as well as with any overlays and other development schemes or legislation.

vii.

In the event of redevelopment, the applicant shall also submit a detailed plan for demolition.

(b)

After the revisions and upon review of the final site plan by the DRG members, the site plan will be scheduled for the next available planning and zoning board meetings. The Town Manager or designee shall prepare a report to the planning and zoning board and town commission, addressing the applicable criteria.

(3)

Submittal requirements for DRG and planning and zoning board are provided below.

(a)

Application. An application is required for site plan approval. This application shall include the following where applicable:

(b)

Site plan. A site plan, the overall size of which shall be 24″ × 36″, drawn at a scale not less than 1″ = 20′ and shall include the following:

i.

A legal description, including the section, township, and range or subdivision lot and block.

ii.

Site boundaries clearly identified, and ties-to-section corners.

iii.

Proposed uses.

iv.

Location and height of all structures and total floor area with dimensions to lot lines, and designations of use.

v.

Building separations.

vi.

Vehicular circulation system for cars, bicycles, and other required vehicle types, with indication of connection to public rights-of-way. Location of all parking and loading areas.

vii.

All adjacent rights-of-way, with indication of ultimate right-of-way line, center line, width, paving width, existing median cuts and intersections, street light poles, and other utility facilities and easements. Location of all cross streets and driveways within 350 feet of property limits.

viii.

Pedestrian circulation system.

ix.

Provider of water and wastewater facilities.

x.

Existing and proposed fire hydrant locations.

xi.

The following computations:

•

Gross acreage.

•

Net acreage. Gross acreage covered by the property excluding road easements and rights-of-way, if any.

•

Number of dwelling units and density for residential uses only.

•

Square footage of ground covered by buildings or structures and designation of use.

•

Required number of parking spaces.

•

Number of parking spaces provided.

•

Pervious, impervious and paved surface, in square footage and percentage.

xii.

Site plan location sketch, including section, township, and range, showing adjacent property owners.

xiii.

Geometry of all paved areas including centerlines, dimensions, radii, and elevations.

xiv.

Location of trash and garbage disposal system and provisions for accessibility to garbage trucks.

xv.

Loading areas and provisions for accessibility to vehicles of the required type.

xvi.

Areas for emergency vehicles and fire engines, and provisions for accessibility to vehicles of the required type.

xvii.

Number of sets required shall be determined by town staff.

xviii.

Other such information as required by the town.

(c)

Survey. A survey less than one year old (including owner's affidavit that no changes have occurred since the date of the survey). The survey shall be prepared by a Florida registered land surveyor, certified as to meeting the requirements of the applicable Section of the Florida Administrative Code, reflecting existing natural features, such as topography, vegetation, existing paving, existing structures, and water bodies.

(d)

Landscape plan and irrigation plan. Landscape plan and irrigation plan with landscape calculations, existing tree survey with indication of existing native vegetation that will be preserved, as required herein.

(e)

Lighting plan. Lighting plan showing photometric measurements, lighting details and spillage onto adjacent properties and rights-of-way.

(f)

Sign plan for all signs which will be on site.

(g)

Pavement markings and traffic signing plan.

(h)

Schematic water and sewer plan. Plans shall include the location and size of all mains and lift stations (Note: Final engineering plans must be submitted and approved).

(i)

Paving and drainage plans. Plans shall show the location of all drainage features and retention areas, if any.

(j)

Architectural elevations (minimum scale of ⅛″ = 1′):

i.

Show separate elevations of all sides of existing and proposed buildings with all dimensions, including height.

ii.

Label exterior materials, color, texture and trim, roof material, roof color and pitch, windows, doors, screens, skylights and all exposed mechanical equipment and screening.

iii.

Provide color elevations, showing all material finishes, textures and landscaping for all elevations of the proposed building(s) and structure(s), which should include at a minimum:

•

All exterior materials, colors and finishes, keyed to samples provided.

•

Roof slopes and materials including specifications and color.

•

Detail of doors, windows, garage doors.

•

Dimensions of structure(s)—Height, width, and length.

•

Deck, railing, stairs details including materials, colors, finishes, and decorative details.

•

Exposed foundation treatment.

•

Gutters and eaves.

k.

Signs.

i.

Show dimensioned locations and mounting details of signs on building elevations and locations of signs on site plan.

ii.

Note colors, materials, lighting and dimensions.

iii.

Show dimensions and square footages (proposed and existing).

iv.

Identify materials and colors—Background, trim/border, and copy.

v.

Show fonts and graphics.

90-20.1 Site plan amendments. If an applicant's development plans change after previously receiving final site plan approval, the applicant may file an application for revised final site plan approval with the town manager or designee. However, no application will be considered for property that is the subject of pending code enforcement action by the town or that has an unpaid code enforcement lien.

(1)

Site plan amendment criteria.

a.

Amendments may not be contrary to a condition of the original site plan approval or any previously approved amendment (except that conditions that were imposed for a particular use may be lifted if that use is deleted from the site plan).

b.

Amendments may not change the character or location of any structure on the property that is not part of the main building.

c.

Amendments may not alter the location of any points of ingress or egress from the public right-of-way, nor alter any vehicular or pedestrian flows.

90-20.2 Exempt development. Notwithstanding any other provision of this chapter, the following activities shall not require site plan approval, however, may require design review approval by the planning and zoning board:

(1)

The deposit and contouring of fill on land.

(2)

Construction of a single-family home on an existing single-family lot.

(3)

Construction of a single duplex on an existing single lot.

90-20.3 Effective period of final site plan approval. An approved final site plan shall be effective until the development is completed except that if, after 24 months from the date the final site plan is approved a building permit for a principal building has not been issued and remains in effect, the site plan shall be null and void.

(1)

Extensions for good cause, not to exceed a total of one year for all extensions, may be granted by the town commission, at its sole discretion, provided the applicant submits a request in writing to the town manager or designee in advance of the expiration of the original approval, setting forth good cause for such an extension. For the purpose of this section, a building permit for a principal building shall cease to be in effect once required inspections have lapsed or once a certificate of completion or certificate of occupancy is issued. In those cases where a development includes more than one principal building and it is contemplated that the development shown on a site plan will not be completed with a building permit for a principal building continuously in effect, approval by the planning and zoning board of a phasing schedule must be obtained as part of the overall site plan approval. Amendments to the original site plan shall not extend this time frame unless an extension is expressly granted by the planning and zoning board as a part of the approval of the amendment.

(2)

All approvals which have been granted prior to the effective date of this chapter, shall be null and void and of no further force or effect if not utilized within two years after the effective date of this chapter, unless vested rights are demonstrated pursuant to subsection 90-5(11) of the zoning code. The foregoing provision of this paragraph shall not apply if the governmental approval expressly established a specific time limitation for utilizing the approval. In such instances, the time limitation established by such resolution shall prevail.

(Ord. No. 1558, § 2(Exh. A), 8-10-10; Ord. No. 1572, § 2, 4-12-11; Ord. No. 1598, § 2, 1-15-13; Ord. No. 1618, § 2, 3-11-14; Ord. No. 18-1689, § 2, 9-12-18)

(1)

No vacant land shall be occupied or used until a certificate of occupancy shall have been issued by the building official.

(2)

No premises shall be used and no buildings hereafter erected or structurally altered shall be used, occupied, or changed use until a certificate of occupancy and compliance shall have been issued by the building official, stating that the building or proposed use of a building or premises complies with the building laws and the provisions of these regulations.

(3)

Certificates of occupancy and compliance shall be applied for within ten days after the erection or structural alteration of such have been completed in conformity with the provisions of these regulations. A record of all certificates shall be kept on file in the office of the building official.

(Ord. No. 1558, § 2(Exh. A), 8-10-10)

The town commission may, from time-to-time, amend, supplement, or change by ordinance, the boundaries of the districts or the regulations herein established.

90-22.1 Reconsideration of district boundary changes. When a proposed change in district boundaries has been acted upon by the town commission and disapproved or failed of passage, such proposed change, in the same or substantial similar form, shall not be reconsidered by the town for a period of at least one year following the date of such action.

90-22.2 Withdrawal of a petition. Any petition for amendment, supplement, or change may be withdrawn by a request in writing from the petitioner at any time before a decision of the town commission, but if withdrawn after advertisement for a public hearing or posting of the property, the same or a substantially similar petition covering the same property shall not be resubmitted, except by the town manager or a member of the town commission, sooner than one year after date established for the prior hearing. Filing fees shall not be refunded upon withdrawal.

State Law reference— Zoning amendments, F.S. §§ 163.3194, 166.041.

(Ord. No. 1558, § 2(Exh. A), 8-10-10)

90-23.1 Purpose. Conditional Uses are generally compatible with the other land uses permitted in a zoning district but, because of their unique characteristics or potential impacts on the surrounding neighborhood and the town as a whole, require individual review as to their location, design, configuration, and/or operation for the particular use at the particular location proposed, as well as the imposition of individualized conditions in order to ensure that the use is compatible with the surrounding neighborhoods and appropriate at a particular location.

90-23.2 Standards of review. In addition to the standards set forth in this zoning code for the particular use, all proposed conditional uses shall meet each of the following standards:

(1)

The proposed use shall be consistent with the Comprehensive Plan and the Zoning Code;

(2)

The establishment, maintenance or operation of the proposed use shall not be detrimental to or endanger the public health, safety, or general welfare;

(3)

The proposed use shall be compatible with the community character of the immediate neighborhood. In addition to compatibility there must be congruity between the subject development and neighboring improvements and surroundings including but not limited to form, spacing, heights, setbacks, materials, color, rhythm and pattern of architectural or aesthetic interest or value as well as with any overlays and other development schemes or legislation.

(4)

Adequate provisions shall be included for parking and safe traffic movement, both vehicular and pedestrian, both internal to the use and in the area which will serve the use;

(5)

Adequate measures exist including landscaping or other buffering measures or shall be taken to mitigate any adverse effects of noise, light or other potential nuisances; and

(6)

The establishment of the conditional use shall not impede the development of surrounding properties for uses permitted in the zoning district; and

(7)

Any other condition imposed by the planning and zoning board.

90-23.3 Applications requirements. No use designated, as a conditional use shall be established until after such use has received approval under the provisions of this section and has received all other permits required by the town. An application for conditional use approval shall be filed with the town. The application shall include:

(1)

An illustrative site plan.

(2)

An application fee, as established by the Town Commission.

(3)

A written summary of the proposed project.

(4)

Ownership affidavit and owner's sworn statement to consent, if applicable.

(5)

A survey less than one year old including owner's affidavit that no changes have occurred since the date of the survey.

90-23.4 Procedures; Conditional Uses. Application and fee shall be submitted to the Town for a Conditional Use review and are subject to the requirements of section 90-23. Applications for approval of a Conditional Use shall be heard by the Planning and Zoning board for a recommendation to the Town Commission. The Planning and Zoning board's report may contain recommendations to the Town Commission in approving the Conditional Use. The Town Commission may establish these and/or additional conditions for an approval by a simple majority vote. Outdoor dining facilities, hotel swimming pools, and other similar facilities shall be required to obtain an annual Conditional Use permit. The permit will dictate hours of activity and other conditions necessary to provide compatibility with the surrounding neighborhood.

90-23.5 Conditional Use Expiration. The approval of a Conditional Use shall be void if the applicant does not obtain a building permit or other permit required to implement the Conditional Use within 24 months after the granting of the Conditional Use. An applicant who has obtained approval of a Conditional Use may request an extension of this time period within the original approval period. The Town Commission, at its discretion, may grant one or more extensions for a period of up to a total of six months for good cause shown by the applicant.

90-23.6 Annual Permit Requirements. After approval by the Town Commission, a Conditional Use shall be required to obtain an annual permit. The Town Manager or designee shall review the annual permit application to determine if the Conditional Use continues to comply with the Standards of Review in Section 90-23.2 and any additional conditions approved by the Town Commission. This permit shall include a fee as established by the Town Commission. The permit shall be submitted for and proceed concurrently with the annual business tax receipt.

90-23.7 Revocation. If the Conditional Use fails to meet the Standards of Review in Section 90-23.2 or the conditions approved by the Town Commission, a Conditional Use permit may be rescinded after the Conditional Use permit holder has been notified of these deficiencies. An administrative decision to revoke by the Town may be appealed to the Town Manager within thirty (30) days of the revocation. The Town Manager shall schedule an informal hearing with the applicant and his decision shall be rendered within ten days of the meeting in writing. That decision will be considered final. Any decision made by the Town Manager regarding Conditional Use permits may be appealed to the Town Commission.

(Ord. No. 1558, § 2(Exh. A), 8-10-10; Ord. No. 1572, § 2, 4-12-11; Ord. No. 1598, § 2, 1-15-13; Ord. No. 1618, § 2, 3-11-14; Ord. No. 18-1689, § 2, 9-12-18)

A place of public assembly operated by a not-for-profit organization qualified under Section 501(c)(3) of the Internal Revenue Code and registered pursuant to Chapter 496, Florida Statutes, shall not be occupied until it obtains an operational license from the town.

90-24.1 The operator of a qualifying place of public assembly shall obtain a form and submit an application for an operational license by contacting the department of building and zoning. No fee shall be charged by the department.

90-24.2 The town manager or designee shall notify the holder of any operational license, in writing, of the town's intent to revoke an operational license if he or she determines that the following circumstances exist:

(1)

The town has reasonable grounds to believe that the premises are being used in a manner that is inconsistent with, or contrary to, the provisions of the zoning code or any other applicable code or statute.

(2)

In the event of a conviction of any director of the organization holding the operational license by a court of competent jurisdiction, for the violation of any criminal statute committed in conjunction with the operation.

(3)

It has been ascertained that the holder of the operational license falsified any information on its application.

(4)

The holder of the operational license, or the holder's designated manager, operator, or supervisor, refuses to permit an authorized law enforcement officer or code enforcement officer to inspect the premises during normal operating hours for the purpose of investigating a complaint which has been filed against the operation.

90-24.3 The notice of intended revocation of an operational license shall state the following:

THE HOLDER OF THE OPERATIONAL LICENSE SHALL HAVE TEN DAYS FROM THE DATE OF RECEIPT OF THIS NOTIFICATION EITHER TO BRING THE PREMISES INTO COMPLIANCE OR TO REQUEST A HEARING, IN WRITING, BEFORE THE TOWN COMMISSION. IF THE VIOLATION IS NOT CURED OR IF NO WRITTEN REQUEST FOR A HEARING IS RECEIVED BY THE TOWN OF SURFSIDE WITHIN TEN DAYS OF THE DATE OF THIS NOTIFICATION BY THE CERTIFICATE HOLDER, THE OPERATIONAL LICENSE SHALL BE CONSIDERED REVOKED.

90-24.4 If the holder of the operational license requests a hearing before the town commission, the operational license shall remain in effect during the pendency of the action before the town commission.

90-24.5 The original of the operational license shall be posted upon the premises at all times.

(Ord. No. 1558, § 2(Exh. A), 8-10-10)

90-25.1 Applicability. The standards set forth in this subsection shall apply to any proposed or existing home-based or common-area based assembly use located in the following residential zoning districts: H30A, H30B, H30C, H40 and H120.

90-25.2 Home-based and common-area based assemblies are permitted, whether for social, religious, or other reasons, as an incidental accessory use to the principal residential use.

90-25.3 Frequency of home-based and common-area based assembly uses. Assemblies that occur four or more times per month for two consecutive months will be deemed to be beyond the scope of the accessory use and shall not be permitted.

90-25.4 Parking standard.

(1)

Home-based assembly uses. A home-based assembly use which results in an additional 11 vehicles being parked near the dwelling unit at each assembly will be deemed to be beyond the scope of the accessory use and shall not be permitted. Vehicles parked legally on the site of the home-based assembly, or upon another parcel pursuant to a lawful agreement with the owner of such parcel, shall not be counted toward the 11 vehicles.

2.

Common-area based assembly use. A common area-based assembly use which results in an additional six vehicles being parked near the common-area based assembly use will be deemed to be beyond the scope of the accessory use and shall not be permitted. Additionally, the parking demand created by such assemblies shall not exceed the supply of parking spaces provided within the shared guest or visitor parking areas allocated to common-area functions.

(Ord. No. 1558, § 2(Exh. A), 8-10-10)

(1)

Home offices are permitted in residential areas of the town provided that:

(a)

Users of the home office are residents of the premises;

(b)

The use of the dwelling unit or residence for a home office is clearly incidental and secondary to its use for residential purposes. No outside display, storage or use of the land is permitted.

(c)

There is no change in the outside appearance of the building or premises as a result of the home office;

(d)

No equipment is used or stored on the premises that creates noise, vibration, glare, fumes, odors or electrical interference, detectable to the normal senses outside the dwelling unit. In the case of electrical interference, no equipment or process shall be used which creates visual or audio interference in any radio, television set or other electronic device off the premises or causes fluctuation in line voltage or other similar nuisance;

(e)

No trash, sewage, solid waste or other waste than normal household trash and recyclables is generated. No commercial dumpsters or trash service shall be allowed;

(f)

No retail or wholesale sales on the premises shall be permitted except for telephone, mail, delivery service, internet order sales or similar electronic sales;

(g)

No traffic is generated by such home office in greater volume than would normally be expected in the neighborhood for residential purposes. No customers, clients, business associates, sales persons, invitees, assistants, outside employees, independent representatives, or the like shall visit the dwelling unit or residence for a business purpose.

(2)

A home office shall not be construed to include among other uses, personal services, such as the practice of medicine, chiropractic medicine, dentistry, massage, cosmetology, barbershops, beauty parlors, tea rooms, food processing for sale, kennels, animal grooming, radio and television repair, furniture refinishing or building, cabinet making, boat building, marine charter or towing service, auto servicing or rebuilding and repair for others, metal fabrication or cutting employing welding or cutting torches, or any other occupation requiring state mandated inspection of the premises;

(3)

No more than one vehicle related to the home office shall be permitted upon the premises. Such vehicle must be 20 feet or less in overall length and must be parked off any public right-of-way. All exterior storage of cargo, equipment or other materials on such vehicle shall be shielded from view at all times when such vehicle is located on a residential lot;

(4)

The home office activities shall be compatible with the residential use of the property and surrounding residential units;

(5)

The home office activities shall not involve any illegal activities;

(6)

The home office activities shall not result in any increase in demand on town services as compared to the average typical residence of the same size.

(7)

No signs, lights, lawn markers, postings, advertising, etc. which are not compatible with the residential appearance and use of the property shall be located on or about the residence or unit.

(a)

The town manager or designee shall determine whether the home office meets the established criteria as set forth in subsection (1) above. The determination may be appealed to the planning and zoning board whose ruling shall be final and may be appealed to the circuit court.

(b)

A local business tax receipt must be obtained from the town for home offices.

(c)

Nothing contained herein shall be deemed to authorize, legalize or otherwise permit a home based business that is otherwise prohibited by a legally enforceable covenant, association document or other instrument or restriction on such use pertaining to a residential unit.

(Ord. No. 1558, § 2(Exh. A), 8-10-10)

(1)

It is hereby deemed unlawful for any person to open or operate any business and/or occupy any structure within the town limits for the privilege of engaging in any business prior to obtaining the required certificate of use.

(2)

No structure used for the purpose of exercising the privilege of doing business within the town limits shall be used or occupied or any existing use enlarged, or any new use made of any land, body of water, or structure, without first obtaining a certificate of use therefore from the town manager or designee as may be required herein.

(3)

The certificate of use shall be renewable annually for all existing, new, and future business use classifications on any land, body of water, and or in any structure including the individual units within said structure within the town limits.

(4)

A separate certificate of use shall be obtained for each place of business and for each corporation and/or legal entity within each place of business.

(5)

It shall be the duty of every person owning, operating, or purchasing any business within the town limits to comply with the requirements of this division prior to opening any business and/or occupying structure.

90-27.1 Term of certificate of use and transfer.

(1)

No certificate of use shall be issued for more than one year, and all certificates shall expire on September 30 of each year.

(2)

Certificates of use may be issued for a fractional portion of a year, but no certificate of use shall be issued for a fractional portion of a month.

(3)

When there is a change of use, business, business ownership or business name the application for certificate of use shall be treated as new application.

90-27.2 Due date for payment of certificate of use fee.

(1)

Certificates shall be available for issuance by the town, commencing on August 1 of each year. Both the renewal and renewal fee shall be due on October 1 of each year. If October 1 falls on a weekend or holiday, the fee shall be due and payable on or before the first working day following October 1. Those certificates not renewed by October 1 shall be considered delinquent and subject to a delinquency penalty of ten percent) for the month of October, plus an additional five percent penalty for each month of delinquency thereafter until paid; provided, that the total delinquency penalty shall not exceed 25 percent of the fee due.

(2)

Any person exercising the privilege of engaging in or managing any business without first obtaining a certificate of use, if required under this division, shall be subject to a penalty of 25 percent of the fee determined to be due, in addition to any other penalty provided by law or ordinance.

90-27.3 Fees. Fees to be charged for the purpose of administering this division are hereby imposed as follows:

(1)

The town manager or designee shall collect fee. No origination fee shall be charged for a certificate of use to any business within the town limits that has a current and appropriate certificate of use from Miami-Dade County or the town, but the annual renewal fee shall be charged accordingly.

(2)

The town manager or designee shall collect and annual renewal fee for the renewal of existing certificate of use as issued herein.

(3)

An application fee shall be assessed for the processing of a new application for certificate of use.

(4)

Inspections of the applicant's business premises shall be scheduled at the convenience of both the compliance officer/inspector and the business owner. If the business owner fails to be present at the time of the scheduled inspection or if the compliance officer/inspector is denied and/or unable to gain access to the business premises to conduct the requisite inspection, the business owner may be subject to being charged a reinspection fee per reinspection at the discretion of the town manager or designee. Additionally, after three such attempts and/or denials of access to the premises the town manager or designee may pursue the revocation of any existing certificate(s) of use issued to the subject premises.

90-27.4 Application procedures.

(1)

Procedures for issuance. No certificate of use shall be issued or granted to any person or location to engage in any business type use named, identified or encompassed by this division unless:

a.

An application is filed with the town manager or designee on forms provided for that purpose, disclosing the following:

i.

The applicant's name and address.

ii.

The name of the business for which a certificate is sought.

iii.

The name and address of the owner and operator of the business and if a corporation, the names and addresses of each of its corporate officers and it's resident or registered agent.

iv.

The type or classification of the business and the relationship of the applicant to the business.

v.

The location in the town where the business will be operated.

vi.

The date of birth and driver's license number of the owner/operator and any applicable federal employer identification numbers.

vii.

If the applicant is a corporation or partnership, the full name of the corporation or partnership and the state of incorporation. Applicant must submit a copy of the articles of incorporation.

viii.

If the business is a corporation and is to be conducted under another name, the business name and county of registration under F.S. § 865.09. Applicant must submit a copy of the fictitious name registration.

b.

There has been a site inspection of the applicant's business premises, except home based businesses.

c.

The town manager or designee, as appropriate, has approved and assigned the zoning use classification.

d.

The town manager or designee has verified compliance with all applicable laws and regulations and has collected all applicable fees due to the town.

(2)

Legality of use. In the event there is a question as to the legality of a use, the town manager or designee, as appropriate, may require affidavits and such other information s/he may deem appropriate or necessary to establish the legality of the use, before a certificate of use will be issued.

(3)

Emergency locator. The application shall contain a section designated "emergency locator." The applicant shall fill out as part of the certificate of use application the names, business and residence addresses and residence and business phone numbers of the owner, and the manager or other persons to be notified in case of fire or other emergencies. Any changes in such information during the period for which the certificate of use is issued shall be made to the department, in writing.

(4)

Certificate number. All applications and certificates shall be assigned a number.

(5)

Statement of accuracy. The application form shall contain the following language:

"THE UNDERSIGNED HAS CAREFULLY REVIEWED THIS APPLICATION AND ALL INFORMATION CONTAINED HEREIN HAS BEEN FREELY AND VOLUNTARILY PROVIDED. ALL FACTS, FIGURES, STATEMENTS CONTAINED IN THIS APPLICATION ARE TRUE, CORRECT AND COMPLETE TO THE BEST OF MY KNOWLEDGE AND BELIEF. THE APPLICANT ALSO ACKNOWLEDGES AND UNDERSTANDS THAT THE ISSUANCE OF A TOWN CERTIFICATE OF USE IS CONTINGENT UPON A ZONING COMPLIANCE INSPECTION AND IN CONJUNCTION WITH THE ISSUANCE OF A CERTIFICATE OF OCCUPANCY, AND TOWN BUSINESS TAX RECEIPT. FAILURE TO COMPLY WITH THE TOWN'S ORDINANCES MAY RESULT IN REVOCATION OF SAID CERTIFICATE OF USE."

(6)

Name; signature. The applicant shall print and sign his name to the application immediately after the statement required in subsection (5) above. In the case of a corporation, an officer shall be required to sign the application in his individual capacity and not solely as a corporate agent.

(7)

Obtaining a certificate of occupancy prior to issuance of certificate of use. All businesses required to obtain a certificate of occupancy from the town manager or designee pursuant to Section 307 of the Florida Building Code, must do so prior to the issuance of a certificate of use. Any certificate of occupancy issued by Miami-Dade County shall be honored by the town, provided that the occupancy for which the certificate was issued remains the same.

(8)

State license, certification, registration required. All businesses and professions regulated by the state must submit a copy of their current state license, certification, and/or registration prior to the issuance of their certificate of use thereafter each year at time of renewal. Only the state license itself, or in the case of the state hotel and restaurant commission, the receipt issued by the state, shall constitute proof of current state license.

(9)

Grease trap registration required. All restaurants are required to obtain a grease trap permit from the Miami-Dade County Department of Environmental Resources Management and shall provide a copy of said permit to the town manager or designee prior to the issuance of any certificate of use.

(10)

Fire inspection required. All businesses that require an annual inspection from the Miami-Dade County Fire Department shall submit a copy of the county fire inspection report or any such form indicating that said business was inspected and passed the requisite inspection; prior to the issuance of any certificate of use.

90-27.5 Grounds for denial.

(1)

The town manager or designee, as appropriate, shall have the authority to deny an application for a certificate of use on the following grounds:

a.

That the applicant has failed to disclose or has misrepresented a material fact or any information required by this division in the application.

b.

That the applicant desiring to engage in the business, as described in the application, has selected a proposed site or type of business activity, which does not comply with the town's zoning ordinance or other laws of the town.

c.

That the applicant has failed to obtain a certificate of occupancy as required by Section 307 of the Florida Building Code.

d.

The certificate of occupancy for the proposed business location has been denied, suspended or revoked for any reason.

e.

The issuance of a certificate of use is based on the applicant's compliance with specific provisions of federal, state, town or county law, with respect to the specific zoning use, and the applicant has violated such specific provisions.

f.

The applicant has violated any provision of this division and has failed or refused to cease or correct the violation within 30 days after notification thereof.

g.

The premises have been condemned by the local health authority for failure to meet sanitation standards or the premises have been condemned by the local authority because the premises are unsafe or unfit for human occupancy.

h.

The applicant is delinquent in the payment of any certification fee imposed under this division; code compliance lien; special assessment lien and/or any other debt or obligation due to the town under state or local law.

i.

The applicant has been denied a town business tax receipt, or the applicant's business tax receipt has been revoked within the last 12 months.

j.

The applicant fails to permit inspection by the town as required and prescribed herein.

(2)

Any person, whose application has been denied as provided herein shall have the right to apply for a variance and/or public hearing. Such application shall be governed in accordance with any town or local ordinance or law.

90-27.6 Renewal of certificate of use.

(1)

Renewed certificates will not be issued until all delinquent payments for any fee imposed under this division, code compliance lien, special assessment lien and/or any other debt or obligation due to the town under state or local law has been paid in full.

(2)

The town shall endeavor to notify all certificate holders that their certificates of use are due for renewal. However, if such certificate holder does not receive a renewal notification, it is responsibility to renew the certificate of use prior to October 1, to avoid delinquent charges.

(3)

Any current certificate of use may, at the discretion of the department, be renewed for each new certificate year without the need for a new application, provided the applicant signs the following certification:

"I THE UNDERSIGNED HEREBY CERTIFIES THAT THE CERTIFICATE OF USE FOR WHICH I AM NOW APPLYING IS ONE FOR A RENEWAL OF A CURRENT CERTIFICATE OF USE WHICH IS NOW IN FULL FORCE AND EFFECT. I HAVE NOT CHANGED THE AUTHORIZED USE OF THE PREMISES NOR HAVE I MADE ANY PHYSICAL OR STRUCTURAL CHANGES TO THE PREMISES AND DO NOT PLAN TO MAKE ANY PHYSICAL OR STRUCTURAL CHANGES TO THE PREMISES."

(4)

Any renewal application in which the applicant changes the authorized use of the premises or makes or proposes any physical or structural changes in the premises shall be reprocessed as if the certificate were a new application.

90-27.7 Display of certificate. Each certificate of use issued by the town shall be displayed conspicuously at the place of business and in such a manner as to be open to the view of the public and subject to the inspection of all duly authorized officers of the town. Failure to display the certificate in the manner provided for in this section shall subject the owner/operator to applicable code compliance procedures and/or any other remedies as permitted by law.

90-27.8 Duties of building department.

(1)

The building department, among other duties, shall collect all fees and shall issue certificates in the name of the town to all persons or businesses qualified under the provisions of this division and shall:

a.

Verify that the applicant is in compliance with all applicable laws and regulations of the town as prescribed herein.

b.

Investigate and determine the eligibility of any applicant for a certificate and/or the current status of any certificate as prescribed in this division.

c.

Accept applications for certificates of use and review for completeness.

d.

Inspect the applicants' premises for compliance with the applicable building codes identifying any necessary building permits and/or any building code violations.

e.

Coordinate with Miami-Dade County Fire Department and the Department of Environmental Resources Management to obtain copies of respective approvals as necessary.

(2)

The town manager or designee, as appropriate, shall among other duties:

a.

Approve and assign the zoning use classification for each business premises.

b.

Examine the books and records of any applicant or certificate holder when reasonably necessary for the administration and compliance of this division.

c.

Notify any applicant of the acceptance or rejection of his application and shall, upon his refusal of any certification, at the applicant's request, state in writing the reasons therefore and deliver them to the applicant.

90-27.9 Examination of records. It shall be unlawful for any person and/or business to refuse to allow the department to investigate and examine relevant records for the purpose of determining whether such person and/or business has a certificate and/or whether such person and/or business shall be issued a certificate.

90-27.10 Approval of business location required. No certificate of use shall be issued for any business until the zoning use classification of the business premises is first approved by the town manager or designee, as appropriate; and the department verifies that the applicant is in compliance with all applicable laws, and other regulatory ordinances of the town.

90-27.11 Lost or stolen certificates; issuance of duplicate. A duplicate certificate of use shall be issued by the town manager or designee, as appropriate, to replace any certificate or special permit previously issued which has been lost, stolen, defaced or destroyed without any willful conduct on the part of the certificate holder upon the filing by the certificate holder of an affidavit sworn to before a notary public of this state attesting to that fact. A duplication fee shall be charged for each duplicate certificate.

90-27.12 Obtaining certificate by false statement. Any certificate of use obtained under the provisions of this division upon a misrepresentation of a material fact shall be deemed null and void and the certificate holder who was thereafter engaged in any business under such certificate shall be subject to compliance action for doing same without a certificate of use with the same effect and degree as though no such certificate had ever been issued.

90-27.13 Illegal activity not approved by certificate. The issuance or possession of a valid certificate of use obtained under the provisions of this division does not constitute an approval of any offense, illegal activity or act prohibited by law.

90-27.14 Revocation of certificate of use. The department, in consultation with the town manager or designee, as appropriate, is granted the authority and charged with the duty to revoke, refuse to renew or suspend any certificate of use as follows:

(1)

A certificate of use issued under this division may be revoked, suspended, or renewal of said certificate refused on the following grounds.

a.

The certificate holder has failed to disclose or has misrepresented a material fact or information required by this division in the application. If an intentional misrepresentation of a material fact is discovered.

b.

The certificate holder does not engage in the business as described in the application or has changed the use without authorization.

c.

The certificate holder allows the premises to be utilized for solicitation for prostitution, pandering, lewd and lascivious behavior, sale, distribution or display of obscene materials or conduct; sale or possession of any controlled substances or narcotics.

d.

The certificate of occupancy for the proposed business location has been denied, suspended or revoked for any reason.

e.

The issuance of a certificate of use is based on the applicant's compliance with specific provisions of federal, state, town or county law and the applicant has violated such specific provisions including but not limited to violations of federal, state, or county criminal statutes, and/or violations of county and/or town zoning, business tax receipts, and related ordinances.

f.

The applicant has violated any provision of this division and has failed or refused to cease or correct the violation after notification thereof.

g.

The premises have been condemned by the local health authority for failure to meet sanitation standards or the premises have been condemned by the local authority because the premises are unsafe or unfit for human occupancy.

h.

The applicant is delinquent in the payment of any certification fee imposed under this division, code compliance lien, special assessment lien and/or any other debt or obligation due to the town under state or local law.

(2)

Procedure.

a.

The department may revoke, refuse to renew or suspend any certificate of use on any grounds set forth herein. The department shall issue a written notice of intent to revoke and/or suspend that shall set forth the grounds upon which the notice is issued, the corrections necessary for compliance, and the certificate holder's right to request an administrative hearing in front of the town special master, and that said appeal must be taken within 30 calendar days of the service of said notice.

b.

The 30 calendar days shall be considered a warning period during which the noticed certificate holder may come into compliance as required herein. If compliance is achieved within said warning period the department shall void the revocation and the certificate holder shall dismiss any pending appeal.

c.

The notice shall be sent certified mail, return receipt requested, to the address provided in the application or the last known address of the applicant. Alternate service may be made by delivery of the notice of hearing to the place of business and/or posting such notice thereon. If there is no appeal taken by the certificate holder as provided herein, the certificate of use shall be automatically revoked. Upon revocation of the certificate of use, the certificate holder shall immediately cease doing business in any location listed therein.

d.

The request for hearing before the special master to appeal the revocation notice shall stay any compliance action and the certificate of use shall remain in effect unless, within the sole discretion of the department, it is determined that the grounds for denial represent an immediate threat to the health, safety, and/or welfare of the public.

(3)

Scheduling and conduct of hearing.

a.

At any time prior to the expiration of 30 days following the service of the notice of intent to revoke and/or suspend the certificate of use, the certificate holder may request in writing that the department schedule a hearing on the basis that he/she wishes to appeal the pending revocation notice. The office of the town clerk, in consultation with the town special master, shall set the matter down for hearing on the next regularly scheduled hearing date or as soon thereafter as practical, provided that the hearing date is not more than 45 calendar days from the date of the town's receipt of the timely request for appeal. The certificate holder shall receive a minimum of 15 days' written notice of the hearing which shall set forth the time and place for the administrative hearing.

b.

The hearing shall be conducted by the special master.

c.

The proceedings at the hearing shall be recorded by the town clerk.

d.

The hearing shall be conducted in an informal manner and the formal rules relating to evidence and witnesses shall not apply, but fundamental due process shall be observed and shall govern the proceedings. Any relevant evidence shall be admitted if the special master finds it competent and reliable, regardless of the existence of any common law or statutory rule to the contrary.

e.

Each party shall have the right to call and examine witnesses; to introduce exhibits; to cross-examine witnesses on any matter relevant to the issues even though that matter was not covered in the direct examination; to impeach any witnesses regardless of which party first called that witness to testify; and to offer rebuttal to the evidence.

f.

Requests for continuances will not be considered if not received by the special master at least seven calendar days prior to the date set for the hearing.

g.

The proceedings at the hearing shall be conducted as follows:

i.

The department shall present testimony in evidence.

ii.

The certificate holder shall then present testimony in evidence.

iii.

Each side shall have the right of cross-examination at the conclusion of the other's presentation.

iv.

The special master shall have the right of inquiry.

v.

Each party shall have the right to present rebuttal evidence.

vi.

Upon completion of the presentations, the hearing shall be closed, and the special master shall analyze the testimony and evidence of record and shall render a decision either affirming or denying the determination of the department.

h.

The decision of the special master shall be reduced to writing and copies thereof shall be furnished to the department and certificate holder within five business days of the hearing.

i.

This decision may be appealed by writ of certiorari within 30 days of such written order to the circuit court.

ii.

Upon the time period for such appeal having expired, and no such appeal having been filed, or upon the expiration of such appeal procedures resulting in the affirmation of the decision of the special master, the certificate shall stand automatically and immediately revoked and no new certificate shall be issued. Upon revocation, the certificate holder shall immediately cease doing business in any location listed therein.

i.

No application for a certificate of use shall be considered by the town until one year after the date of any revocation or non-renewal.

90-27.15 Right of inspection.

(1)

Any person applying for or obtaining a certificate of use shall be subject to an annual inspection of the place of business.

(2)

For the purpose of enforcing the provisions of this division, code officials, inspectors, and compliance officers shall have the right of inspection provided that said inspection shall be reasonable and scheduled at the convenience of the applicant or certificate holder and the compliance officer or inspector. The office of the town attorney is hereby authorized to seek inspection warrants as necessary.

(3)

Notwithstanding the foregoing, a home based business need only be inspected if a complaint regarding the operation of the business is received and subsequently observed by the town manager or designee.

90-27.16 Penalties for offenses. Any person who violates any section of this division shall be subject to the issuance of a civil penalty to be issued in accordance with the code compliance code.

(Ord. No. 1558, § 2(Exh. A), 8-10-10)

The purpose of this rule is to regulate and limit the development and continued existence of unlawful uses, structures and lawful uses established prior to the effective date of this zoning code which does not now conform to the requirement of this code.

Revisions of this section are designed to curtail substantial investment and non-conformity and to bring about the eventual improvement or elim ination in order to the preserve the integrity of the restorations in a character of the town. Any non-conforming structure or lot which lawfully existed on the date of the adoption of this zoning code and which remains non-conforming and any lot which has become non-conforming as the result of the adoption of this zoning code or any subsequent amendment thereto may be continued only in accordance with the terms of this article.

Moving a non-conforming structure. A non-conforming structure shall not be moved in whole or in part to any other location unless every portion of such structure and the use thereof is made to conform with all requirements whether the district to which the structure is moved. The moving of the structure shall also comply with the requirements of other applicable town ordinance.

(Ord. No. 1558, § 2(Exh. A), 8-10-10)

If the owner of a lot in any district does not own a parcel or tract of land immediately adjacent to such lot, and if the deed or instrument under which such owner acquired title to such lot was of record prior to the adoption of the ordinance from which this division was derived, or any amendment thereto which requires a larger minimum lot size than currently exists, the owner may use such lot for improvements that conform in all other respects to applicable zoning regulations. Any existing building which may be located on such a nonconforming lot may be altered or enlarged, provided such alteration or enlargement meets all other applicable requirements of these zoning regulations, including the substantial improvements provisions.

(Ord. No. 1558, § 2(Exh. A), 8-10-10)

Except as otherwise provided herein, the lawful use of a building existing at the effective date of the ordinance from which this division was derived may be continued, although such use does not conform to the provisions hereof. If no structural alterations are made other than substantial improvements as defined by this Code, a nonconforming use of a building may be changed to another nonconforming use of the same or of a more compliant classification. Whenever a nonconforming use has been changed to a more compliant use or to a conforming use, such use shall not thereafter be changed to a less compliant use. The nonconforming use of a building may be hereafter extended throughout those parts of a building which were lawfully and manifestly arranged or designed for such use at the time of passage of the ordinance from which this division was derived.

(Ord. No. 1558, § 2(Exh. A), 8-10-10)

No building or land, or portion thereof, used in whole or in part as a nonconforming use in any zoning district, which remains idle or unused for a continual period of six months, or for 18 months during any three year period, irrespective of whether or not existing equipment or fixtures which contribute to the nonconformity are removed, shall again be used except in conformity with the regulations of the district in which such building or land is located.

90-31.1 Discontinuance or destruction of a nonconforming use or structure.

(1)

Nonconforming use of land. If for any reason a nonconforming use of land ceases or is discontinued for a period of more than six months, or for 18 months during any three year period the land shall not thereafter be used for a nonconforming use.

(2)

Nonconforming use of building or structure. If for any reason the nonconforming use of a building or structure ceases or is discontinued for a period of six months or more, the building or structure shall not thereafter be used for a nonconforming use.

(3)

Reconstruction after catastrophe. If any nonconforming building or structure is destroyed or damaged by a fire, flood, windstorm, natural disaster or similar event, and the cost of restoring the structure to its condition which existed immediately prior to the event does not exceed 50 percent of the cost of replacing the entire structure, then the structure may be restored to its original nonconforming condition. If any nonconforming building or structure in which there is a nonconforming use, is damaged by fire, flood, windstorm, natural disaster or similar event and the cost of restoring the structure to its original condition will exceed 51 percent of the replacement cost of the same building or structure, then the structure shall not be restored.

(4)

Ordinary repairs and maintenance may be made to a non-conforming structure provided that such repairs or maintenance does not exceed 50 percent of the value as determined by the building official.

Ordinary repairs and maintenance in accordance with the criteria, not including repairs and maintenance that would substantially alter the structure, result in a change of occupancy of the structure, or contravene or circumvent other provisions hereof.

(Ord. No. 1558, § 2(Exh. A), 8-10-10)

In case of doubt, and on a specific question raised as to whether a nonconforming use exists, it shall be a question of fact and shall be decided by the town commission through the special exception process after public notice and hearing and in accordance with the rules of the commission.

(Ord. No. 1558, § 2(Exh. A), 8-10-10)

Except as provided in this section a nonconforming structure shall not be enlarged in any manner or undergo any structural alteration unless to make it a conforming structure. Such alteration or enlargement may be permitted provide that:

(1)

Enlargement or alteration itself conforms to the requirement of these regulations;

(2)

Building non-conformity only as to height area or floor area requirements may be altered or extended; enlarged so long as it does not increase the degree of non-conformity for the applicable district.

(3)

Alterations or additions to architecturally significant buildings on H120 zoned lots that are nonconforming as to setbacks may follow existing building lines as long as the alteration or addition maintains the architectural integrity of the existing building. The lesser of the current code-required setback or the existing building line shall be deemed to be the required setback line.

Any redevelopment project undertaken under this subsection must comply with the Town's minimum finished floor elevation requirements for all portions of the building and further must be designed and developed in accordance with Leadership in Energy & Environmental Design (LEED) or Florida Green Building Coalition (FGBC) building design and construction standards.

Redevelopment projects seeking to utilize the setback exception of this subsection shall be limited to a total height of no more than twice the number of existing floors in a building, up to a maximum of 120 feet.

(a)

Determinations of Architectural Significance. Determinations of architectural significance will be made as follows:

(1)

All requests for a determination of architectural significance must be made by a property owner in writing on the forms promulgated by the town. As part of the determination application, a property owner will submit an analysis of the architectural qualities of the existing structure prepared by a licensed architect, at the property owner's expense, demonstrating why the building is consistent with the Code's definition of an architecturally significant building. This analysis shall be accompanied with other materials deemed necessary by the town manager or designee to accommodate the review, including, but not limited to, all available data and documentation regarding the building, site, features, or other considerations by the town manager or designee.

(2)

The town manager or designee will review the analysis prepared by the property owner and issue a recommendation as to whether the building meets the town's standards of architectural significance. The property owner shall be responsible for the town's costs associated with this review, including the fees charged by any necessary consultants, such amounts shall be determined by the town manager or designee and held in escrow by the town.

(3)

Determinations of architectural significance will be made by the planning and zoning board, after public hearing, based on the following requirements.

(a)

The building must be deemed to be a representative example of its architectural style. In order to qualify as a representative example, a building must incorporate at least two of the typical characteristics of its architectural style to be deemed to be architecturally significant or, alternatively, must have been designed by an architect well-known for the style in South Florida. Elements of the relevant styles are as follows:

i.

Miami Modern.

(A)

Use of concrete block or exposed concrete.

(B)

Use of asymmetry, acute angles, boomerang shapes, cutouts, pylons, arches, geometric shapes, repetitive motifs or hyperparaboloids.

(C)

Use of plate-glass, ribbon, clerestory and canted windows.

(D)

The mixture of two or more textured surfaces.

(E)

Use of brise-soleils and architectural screen block.

(F)

Overhanging roof plates and projecting floor slabs.

(G)

Exemplifies a regional style of architecture constructed in the post-war period.

ii.

Streamline Modern.

(A)

Building forms that evoke automobiles, trains, ocean liners, and airplanes.

(B)

Massing that reflects abstract, simplified forms with rounded corners devoid of much applied decoration.

(C)

Horizontal compositions, bands of windows, racing stripes, and flat roofs.

(D)

Use of vitrolite, glass block, chrome, stainless steel, and terrazzo.

(E)

"Eyebrow" ledges over the windows, front porches,

(F)

Use of nautical motifs like porthole windows, and bas-relief panels depicting tropical scenes.

iii.

Mediterranean Revival.

(A)

Use of bell towers, awnings, porches, balconies, carved stonework.

(B)

Style reflects the architectural influences of the Mediterranean coast: Italian, Byzantine, French, and Moorish themes from southern Spain.

(C)

Application of Spanish baroque decoration to openings, balconies, and cornices.

(D)

Use of arches, parapets, twisted columns, pediments, and other classical details.

(E)

Use of stucco walls, red tile roofs, wrought iron grilles and railings, wood brackets and balconies.

(F)

Use of casement windows.

(b)

The building must have not been altered in a manner in that substantially impacts the original building design or obscures the significant architectural elements in a manner that cannot be reversed without unreasonable expense.

(c)

Significant exterior architectural characteristics, features, or details of the building remain intact.

(b)

Alterations to Architecturally Significant Buildings. Any alteration proposed for a building on H120 zoned lots determined by the planning and zoning board to be architecturally significant will be reviewed by the Town Manager or his designee and the planning and zoning board to determine whether:

i.

The proposed alteration or addition does not require demolition or alteration in a manner that would render the building no longer architecturally significant; and

ii.

The proposed alteration or addition is designed in a manner that is compatible with the existing building.

(c)

Site Plan Review for Architecturally Significant Buildings. Any addition requiring a site plan that is proposed for a building determined by the planning and zoning board to be architecturally significant will be reviewed by the town manager or designee, the planning and zoning board, and the town commission to determine whether:

i.

The proposed alteration or addition does not require demolition or alteration in a manner that would render the building no longer architecturally significant; and

ii.

The proposed alteration or addition is designed in a manner that is compatible with the existing building.

(Ord. No. 1558, § 2(Exh. A), 8-10-10; Ord. No. 1655, § 3, 12-13-16; Ord. No. 18-1689, § 2, 9-12-18)

A nonconforming use in violation of a provision of these regulations, or any provision which these regulations amend or replace shall not be validated by the adoption of these regulations.

(Ord. No. 1558, § 2(Exh. A), 8-10-10)

(a)

Rules of procedure. The following rules shall govern procedure on all applications for site plan, amendments to the land use plan, special exception, zoning changes, conditional uses, and/or variances or amendments or modifications thereto:

(1)

Application. All applications shall be submitted to the town manager or designee on the prescribed form and accompanied with the prescribed fee. The fees may be adjusted from time to time to defray the costs of processing and reviewing the application and providing requisite notice. (Professional fees will be charged to the applicant in accordance with the cost recovery program of the town.)

a.

The planning and zoning board shall be required to schedule a public hearing not later than 30 days after determination by the town manager or designee that such site plan, amendment to the land use plan, special exception, zoning change, conditional use permit or variance request meets the criteria set forth in the zoning code.

b.

The planning and zoning board shall make its views and recommendations known to the commission for the commission's determination. If the board fails to take action within the prescribed time, the commission shall assume its duties.

c.

All materials, including final drawings, plans, material samples and proposed amendments to draft ordinances or resolutions, shall be provided to the town manager or designee no less than ten days prior to a scheduled quasi-judicial hearing before the board or commission. Any new information or amendments provided after that time or new materials submitted prior to the deadline which significantly revise the proposed plans or require significant review will result in removal of the item from said agenda to the next available meeting date for which notice may be properly provided in order to ensure adequate review and analysis of the new materials. Re-notice may be required at the expense of the applicant.

d.

No application will be considered for property that is the subject of pending code enforcement action by the town or that has an unpaid code enforcement lien unless the application would resolve the code enforcement issue.

(2)

Notice. A planning and zoning board and town commission public hearing shall be noticed as provided as follows:

a.

The public hearing shall be advertised at least once in a local newspaper of general circulation or publicly posted in the Town Hall at least ten days prior to the public hearing. Written courtesy notices shall be sent by first class mail to affected property owners within a radius of 300 feet. Where practicable, such advertising shall contain, in addition to a legal description, a street address, together with the specific intended use in layman's language, i.e., "apartment house" rather than "multiple dwelling," "meat market" rather than "business zoning."

b.

A notice, 18 inches by 24 inches, shall be placed in a prominent place on the property by the applicant at his own expense denoting the following:

REQUEST FOR:  _____

PLANNING AND ZONING MEETING: DATE AND TIME

TOWN COMMISSION MEETING: DATE AND TIME

TOWN HALL
9293 Harding Avenue
Surfside, FL 33154

COMPLETE INFORMATION REGARDING THE APPLICATION IS AVAILABLE BY CONTACTING THE TOWN HALL AT ___________________.

Such notice to be posted not less than ten days prior to such planning and zoning board and town commission hearings.

c.

The posted notice, as set forth in subsection (3) of this section, shall contain the requested use change in layman's language i.e., "apartment house" rather than "multiple dwelling," "meat market" rather than "business zoning." Posted notice shall be in standard colors, approved by the town manager or designee before erection.

(3)

Rezoning applicant requirement. All applications must be made and presented by the fee title owner or owners of the property sought to be rezoned or by a tenant or attorney for the owner with the owner's written approval.

(4)

Adoption by resolution. Applications for site plan, special exceptions, variances and conditional uses shall be adjudicated by resolution.

(5)

Adoption method for land use and zoning map changes. Applications for amendments to the land use map and rezonings shall be adjudicated through the same procedures as required for ordinance adoption as required by law.

(6)

Zoning change criteria. Application for zoning change review criteria. In order to approve an application for zoning change the town commission must find that the application complies with each of the following criteria. The applicant is required to provide a report at the time the application is filed which includes documentation that the application complies with each of the below criteria:

a.

The zoning change is consistent with the comprehensive plan;

b.

The proposed change will result in development that is consistent in scale and character with those within 300 feet of the site;

c.

The resulting boundaries of the zoning district are logically drawn;

d.

The proposed change will not reduce property values in the town;

e.

The proposed change will enhance the quality of life in the town; and

f.

There are substantial and compelling reasons why the proposed change is in the best interests of the town.

(7)

[Quasijudicial procedures.] When applicable, the planning and zoning board hearing shall be conducted in accordance with the quasijudicial procedures set forth in this Code.

The following applications are quasijudicial and shall comply with the town's quasijudicial legislation:

a.

Site-specific rezoning.

b.

Conditional use applications.

c.

Special exceptions.

d.

Variances, including lot coverage, dimensions of yards, setbacks, other open spaces, building spacing, parking, or loading requirements, or other variances permitted by this chapter.

e.

Development of regional impact.

f.

Site plan (or site plan amendment).

g.

Amendments to the land use plan.

h.

Any other development approval deemed to be quasijudicial by the town attorney.

(8)

[Planning and zoning board hearing.] When applicable, the town commission shall conduct a public hearing in accordance with the quasijudicial procedures. Upon consideration of the recommendations of any reviewing agencies, staff and boards, the town manager, planning and zoning board or town commission, as the final decision making authority, shall adopt a final development order that denies, approves or approves with modifications or conditions, the application. Any approval may prescribe any appropriate modifications and/or conditions, to ensure compatibility or mitigate the impacts of the proposed application and to ensure safeguards in conformity with all applicable laws. Violation of such conditions and safeguards, when made a part of the terms under which the approval is granted, shall be deemed a violation of this chapter.

(9)

Expiration of approval. The approval of a conditional use, special exception, variance or site plan shall be void if the applicant does not obtain a building permit within 24 months after the granting of the approval-unless a different expiration period is provided in the development order. An applicant who has obtained approval of a development order may request an extension of this time period within the original approval period. The town commission may grant one or more extensions for a period of up to a total of six months for good cause shown by the applicant.

(Ord. No. 1552, § 2, 5-11-10; Ord. No. 1558, § 2(Exh. A), 8-10-10; Ord. No. 18-1683, § 2, 5-8-18)

90-36.1 General variances.

(1)

Purpose, definition, scope and limitations.

a.

Unnecessary and undue hardship variance. An unnecessary and undue hardship variance is a relaxation of the terms or provisions of the Zoning Code of the Town of Surfside (zoning code) where such action will not be contrary to the public interest and where, owing to conditions peculiar to the property and not the result of actions of the applicant, a literal enforcement of the zoning code would result in unnecessary and undue hardship on the property. As used in this section, a variance is authorized only for lot coverage, dimensions of yards, setbacks, other open spaces, building spacing, parking, or loading requirements.

b.

Practical difficulty variance. A practical difficulty variance is a relaxation of the terms or provisions of the Zoning Code which is less rigorous than the unnecessary and undue hardship standard. Practical difficulty variances shall only be applicable to lot coverage for single family homes located on single platted lots in the H30B zoning district. If a practical difficulty variance is granted, the maximum lot coverage afforded shall be 50 percent. Any property granted additional lot coverage by a practical difficulty variance shall not increase the square footage permitted on the second story. Further, any square footage added by the practical difficulty variance on the first floor, shall be considered a reduction in the available square footage be added to the second floor. A practical difficulty variance shall only be granted by the town one time per property. The standard provides for a variance where a literal enforcement of a zoning regulation will create a practical difficulty in the use of the parcel of land for the purpose or in the manner for which it is zoned, considering various factors set forth in paragraph (9) below.

(2)

Uses and height of structures not subject to variance. A variance is authorized only as set out in subsection (1).

a.

Under no circumstances shall the town commission grant a variance that would allow a use of property that is not allowed within the zoning district under the Town of Surfside Comprehensive Plan and the zoning code.

b.

Under no circumstances shall the town commission grant a variance that would allow height of development and structures within the Town of Surfside that exceeds the maximum building heights that are set out in the Town of Surfside Comprehensive Plan or the zoning code, whichever provisions are more restrictive.

(3)

Nonconforming uses and structures not grounds for granting variance. Nonconforming use of neighboring lands, structures, or buildings in the same zoning district, and permitted use of lands, structures or buildings in any other district, shall not be considered grounds for granting a variance.

(4)

Town manager not authorized to vary terms of section. The town manager or designee has no authority to relax the terms of this section. Authority to grant variances is lodged solely with the town commission.

(5)

Application requirements. An application for a general variance shall be filed by the owner of the property upon which the variance is requested or the owners designated representative. The following shall, at minimum, be required to support a variance application:

a.

Statements of ownership and control of the property, executed and sworn to by the owner or owners of 100 percent of the property described in the application, or by tenant or tenants with the owners' written, sworn consent, or by duly authorized agents evidenced by a written power of attorney if the agent is not a member of the Florida Bar.

b.

The written consent of all utilities and/or easement holders if the proposed work encroaches into any easements.

c.

Survey less than one year old (including owner's affidavit that no changes have occurred since the date of the survey). A survey over one year is sufficient as long as the property has not changed ownership and the owner provides an affidavit that no changes change occurred since the date of the survey.

d.

Site plan indicating the existing and proposed structures.

e.

A map indicating the general location of the property.

(6)

Staff review. The town manager or designee shall review the application to determine whether the proposed variance complies with the general purpose and standards set forth herein. The town manager or designee shall compile a written staff report summarizing the facts regarding the application, including all relevant documents. The complete staff report shall be transmitted to the planning and zoning board and to the town commission.

(7)

Review by planning and zoning board and by the town commission. The town manager or designee shall schedule the general variance application for a meeting of the planning and zoning board. The planning and zoning board shall conduct one public hearing on the general variance application, review the application, and make recommendations to the town commission for final action. The town manager or designee shall then schedule the variance application, including the recommendation of the planning and zoning board, for a meeting of the town commission.

a.

Public hearing. The town commission shall hold one public hearing on the variance application.

b.

Action by the town commission. In considering whether to approve or deny the application, the town commission shall review the application, the purposes and standards set forth in this section, the staff report, the recommendation of the planning and zoning board, and relevant evidence, including oral and written comments received at the public hearing. No variance shall be granted except upon the affirmative vote of at least four members of the town commission.

(8)

Standards of review for an unnecessary and undue hardship variance. The town commission shall approve an unnecessary and undue hardship variance only if the variance applicant demonstrates by clear and convincing evidence that all of the following are met and satisfied:

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 do not result from the actions of the applicant or a prior owner of the property;

c.

Literal interpretation of the provisions of the zoning code deprives the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms of the zoning code and results in unnecessary and undue hardship on the applicant;

d.

The hardship has not been deliberately or knowingly created or suffered to establish a use or structure which is not otherwise consistent with the town comprehensive plan or the zoning code;

e.

An applicant's desire or ability to achieve greater financial return or maximum financial return from his property does not constitute hardship;

f.

Granting the variance application conveys the same treatment to the applicant as to the owner of other lands, buildings, or structures in the same zoning district;

g.

The requested variance is the minimum variance that makes possible the reasonable use of the land, building, or structure; and

h.

The requested variance is in harmony with the general intent and purpose of the town comprehensive plan and the zoning code, is not injurious to the neighborhood or otherwise detrimental to the public safety and welfare, is compatible with the neighborhood, and will not substantially diminish or impair property values within the neighborhood.

(9)

Standards of review for a practical difficulty variance. The town commission shall approve a practical difficulty variance if it finds, based on substantial competent evidence, that following factors demonstrate that a practical difficulty exists:

a.

How substantial the variance is in relation to the requirement sought to be varied:

b.

Whether an adverse change will be produced in the character of the neighborhood;

c.

Whether the difficulty can be obviated by some method feasible for the applicant to pursue other than by a variance; and

d.

Whether, in view of the manner in which the difficulty arose, the interest of justice will be served by allowing the variance.

(10)

Conditions and restrictions. The town commission may impose such conditions and restrictions upon the premises benefited by a variance as may be necessary to comply with the standards set out in this Section, and to prevent or minimize adverse effects on other property in the neighborhood. Violation of such conditions and restrictions, when made a part of the terms under which a variance is granted, shall be deemed a violation of the zoning code, and shall constitute grounds for revocation of the variance.

a.

A condition of granting a practical difficulty variance shall be for the property to meet or exceed the landscape requirements in Chapter 90, Article VIII of the Town's Code of Ordinances.

(11)

Reserved.

(12)

Amendments and alterations to approved variances. Any expansion to an approved variance and any addition to or expansion of an existing variance shall require the same application, review, and approval as required under this Section for the original variance.

90-36.2 Administrative variances.

(1)

The administrative variance procedure shall be used for a variance from the provisions of the zoning code applying to setbacks for single-family structures only. The administrative variance procedures may only be used for applications which receive the approval from the town manager or designee. The maximum amount of the waiver is up to, but not greater than, five percent for a side yard and ten percent for a rear yard. No administrative variance shall be allowed for a front yard or corner yard.

(2)

An application for an administrative variance shall be made by the owner of the property and the application shall include:

a.

The written consent of all the owners of all adjacent or abutting lots to the subject property;

b.

The written consent of all utilities and/or easement holders if the proposed work encroaches into any easements;

c.

Survey less than one year old (including owner's affidavit that no changes have occurred since the date of the survey). A survey over one year is sufficient as long as the property has not changed ownership and the owner provides an affidavit that no changes change occurred since the date of the survey;

d.

Site plan indicating the existing and proposed structures;

e.

A map indicating the general location of the property.

(3)

The application shall be reviewed based on the following criteria:

a.

That the requested variance maintains the basic intent and purpose of the subject regulations, particularly as it affects the stability and appearance of the town;

b.

That the requested variance is otherwise compatible with the surrounding land uses and would not be detrimental to the town;

c.

That the requested variance represents the minimum amount reasonably necessary to accommodate the requested action;

d.

That the requested variance is consistent with the goals, objectives and policies of the town's comprehensive plan;

(4)

Upon receipt of the completed application for the administrative variance, the town manager or designee shall review the request and provide a result of denial or approval to the planning and zoning board. The planning and zoning board shall either ratify or reject the town manager or designee's determination. If the planning and zoning board rejects the approval or denial determination, the application shall no longer continue as an administrative variance. The applicant shall submit a general variance application and be subject to the general variance procedures.

(5)

The planning and zoning board shall ratify the town manager or designee's approval of the administrative variance in a resolution. It shall be the burden of the applicant to record said resolution in the official records of Miami-Dade County.

(Ord. No. 1558, § 2(Exh. A), 8-10-10; Ord. No. 1636, § 2, 6-9-15; Ord. No. 18-1683, § 2, 5-8-18)

(a)

Permit required. A temporary use or structure which is not otherwise treated as a permitted use or conditional use in a particular zoning district and which is not otherwise prohibited shall be conducted or erected with a temporary use or structure permit in accordance with the terms of the Florida Building Code and/or the Florida Fire Prevention Code. This section shall not override, and shall not substitute for, any other section of the town's zoning code which requires another type of permit, certificate, or approval.

(b)

Reviews and approval. An application for temporary use as defined by Section 3103 of the Florida Building Code shall be submitted and reviewed for conformance with the procedures contained in Section 107 and Section 3103 and such other Sections of the Florida Building Code as may be applicable.

(1)

Within the discretion of the building official, where the failure to timely remove a temporary use or structure could adversely affect the health, safety or welfare of the town, and/or would create an economic hardship for the town to remove, the property owner shall be required to post a bond or comparable instrument acceptable to the town manager such as a refundable deposit in amount sufficient, in the sole opinion of the town manager, to pay for the cost of demolition and removal of the structure or use from the site. Said instrument shall be from a surety company or financial institution acceptable to the town manager and shall be in a form approved by the town attorney.

(2)

The temporary use shall meet the town's zoning code pertaining to the underlying zoning.

(3)

Maximum time limit. A maximum time limit shall be established for all temporary uses based on the anticipated minimum amount of time needed to conduct the permitted activity; provided, however, that any temporary use that is contemplated to extend beyond 90 days shall be placed on the town commission agenda for commission review and approval. Temporary uses and structures related to real estate development projects shall not be maintained longer than the time necessary to complete the construction of the project.

(3)

Revocation of permits. Any temporary use which becomes a nuisance, violates the conditions of the permit, or is in violation of the town zoning code shall be revoked by the town building official. any temporary use which endangers the public health or safety shall be revoked immediately by the town building official.

(Ord. No. 1515, § 2, 4-14-09; Ord. No. 1558, § 2(Exh. A), 8-10-10)

(1)

The following are special exceptions which may be granted by resolution of the town commission receiving at least three affirmative votes:

(a)

Nonconforming uses as follows:

i.

A nonconforming use now existing in any part of a building to be extended vertically or laterally to other portions of the building.

ii.

To determine the existence of a nonconforming use.

(2)

Other special use exceptions as follows:

i.

To determine, in cases of uncertainty, the classification of any use not specifically named in these regulations; provided, however, such use shall be in keeping with uses specifically listed in the district.

(3)

The town manager or designee shall review the application and shall compile a written staff report summarizing the facts regarding the application and the complete staff report shall be transmitted to the planning and zoning board. The town manager shall schedule the application for a meeting of the planning and zoning board. The planning and zoning board shall conduct one public hearing and shall make a recommendation to the town commission for final action.

(Ord. No. 1558, § 2(Exh. A), 8-10-10)

After the town commission has approved a special exception or granted a variance, or the town manager or designee has approved an administrative variance, the special exception or variance so approved or granted shall lapse after the expiration of two years from its effective date if a building permit has not been issued, or if no substantial construction or change of use has taken place in accordance with the plans for which such special exception, or variance was granted. However, the town commission may grant an extension of up to six months prior to the expiration of the original approval for good cause shown by the applicant.

(Ord. No. 1558, § 2(Exh. A), 8-10-10)