The purpose of this Article is to provide mechanisms for obtaining relief from the provisions of this Code where hardship would otherwise occur. Three forms of hardship, are addressed: (1) hardship that would be caused if nonconforming development were required to immediately come into compliance with this Code; (2) criteria for granting special exception uses; (3) hardship that may be caused in particular cases by the imposition of the Code's development design standards.

8.2.1 Defined

Nonconforming development is development that does not conform to the Articles contained in this Code.

8.2.2 Continuation of Use

A use, building, or structure, lawfully in existence on the date of adoption of this Code, which shall be made nonconforming at the passage of this article or any applicable amendment thereto may be continued except as otherwise provided in this section. A use, building, or structure is, for the purpose of this chapter, a nonconforming use if the use, or building, or any physical characteristics of the use or building, is not in full compliance with all regulations of the land use district in which it is situated.

8.2.3 Regulation of Nonconforming Uses and Structures

No existing building or premises devoted to a nonconforming use shall be enlarged, extended, reconstructed, substituted, or structurally altered except when changed to a conforming use, or when required to do so by law and as follows.

A.

Any nonconforming structure which has less than 50% of its previous existing floor area made unsafe or unusable may be restored, reconstructed, or used as before, provided that the floor area of the use, building, or structure shall not exceed the floor area which existed prior to the damage. All repairs shall be completed within one year after damages occur or the use shall not be rebuilt except as a conforming use.

B.

Normal maintenance repair and incidental alteration of a structure containing a nonconforming use is permitted, provided it does not extend the area or volume of space occupied by the nonconforming use. A building or other structure containing residential nonconforming uses may be altered in any way to improve interior livability. However, no structural alterations shall be made which would in any way increase the non-conformity of the use or structure, or create an additional non-conformity. Repairs, maintenance and additions may be made in order to bring the structure into conformity.

8.2.4 Termination of Nonconforming Uses and Structures

A nonconforming use not used for a period of six months or the change of use to a more restricted or conforming use for any period of time shall be considered an abandonment thereof and the nonconforming use shall not thereafter be revived. When 50% or more of the existing floor area of a nonconforming structure is destroyed by fire or other casualty or act of God and as a result becomes unsafe or unusable, the use of the structure, as a nonconforming use shall thereafter be terminated.

8.2.5 Special Provisions for Specific Nonconformities

A.

Nonconformity with the Stormwater Management Requirements of this Code In addition to the activities listed in Section 6.11 of this Code, an existing development that does not comply with the stormwater management requirements of this Code must be brought into full compliance with the stormwater management requirements of this Code, when the use of the development is intensified, resulting in an increase in stormwater runoff or added concentration of pollution in the runoff.

B.

Nonconforming Signs

1.

Existing Signs

2.

Nothing contained herein shall affect nonconforming signs in existence as of the effective date of these Land Development Regulations, Ord. 287, and which have been properly permitted for their intended purposes and which are properly maintained in good condition as required by this Code.

3.

Continuation Of

A new sign permit approved by the Village Council shall be required if an existing sign is:

a.

Structurally changed to another nonconforming sign, but its pictorial content may be changed.

b.

Structurally altered to prolong the life of the sign, except to meet safety requirements.

c.

Altered in any manner that increases the degree of nonconformity.

d.

Expanded.

e.

Re-established after damage or destruction if the estimated cost of reconstruction exceeds fifty (50) percent of the appraised replacement cost as determined by the City.

f.

Continued in use when a conforming sign or sign structure shall be erected on the same parcel or unit.

g.

Continued in use when the structure housing the occupancy is demolished or requires renovations the cost of which exceeds fifty (50) percent of the assessed value of the structure.

h.

Continued in use after the structure housing the occupancy has been vacant for six (6) months or longer.

A.

The Planning and Zoning Board shall review and recommend to the Village Council which shall hear and decide special exceptions; decide those questions that are involved in determining when special exceptions should be granted; grant special exceptions with appropriate conditions; or deny special exceptions when not in harmony with the purpose and intent of this Code. Special exception uses, as previously enumerated in Article VI, shall be permitted only upon authorization by the Village Council, provided that the uses shall be found to comply with the following requirements and any other applicable requirements:

1.

The use is set forth in the special exception uses for that district.

2.

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

3.

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

4.

The use will be compatible with adjoining developments and the proposed character of the district where it is to be located.

A.

In granting any special exceptions, the Village Council, in addition to the standards enumerated in this chapter, may prescribe appropriate conditions in conformity with this chapter. Violation of the conditions, when made a part of the terms under which the special exception is granted, shall be deemed a violation of this Code. The Village Council may prescribe a reasonable time limit within which the action for which the special exception is required shall be begun, or completed, or both.

B.

Any person or entity desiring to operate a Retail or General Business Establishment within the Restricted Commercial District, may apply to the Village for a special exception, which shall, at a minimum, require presentations by the applicant of a detailed written explanation of the type or nature of the proposed business or operation; the total number of employees; the hours of operation; the estimated pedestrian and vehicular traffic to be generated daily by the proposed operation; the existing amenities available at the proposed location to accommodate both the existing operations or businesses, and a description of the types of operations or businesses existing at the proposed location. The Village Planning and Zoning Board may request additional information from the applicant in order to determine if the proposed operation is compatible with the uses generally listed in the Restricted Commercial District. The Village Planning and Zoning Board shall consider all of the criteria referenced in this section in determining whether the proposed operation or business is generally within the description and is compatible with the other permitted uses within the Restricted Commercial District.

C.

Any person or entity desiring to conduct or operate any business within the General Commercial District which is not listed or defined in Section 3.3.2 (E) under either General Commercial District or Retail or General Business Establishment, may apply to the Village for a special exception, which shall, at a minimum, require presentation by the applicant of a detailed written explanation of the type or nature of the proposed business or operation; the total number of employees; the hours of operation; the estimated pedestrian and vehicular traffic to be generated daily by the proposed operation; the existing amenities available at the proposed location to accommodate both the existing operations or businesses and the projected increase in pedestrian and vehicular traffic by the proposed operation or business, and a description of the types of operations or business existing at the proposed location. The Village Planning and Zoning Board may request additional information from the applicant in order to determine if the proposed operation is compatible with the uses generally listed and whether the proposed use will have an adverse effect to the neighbors. The Village Planning and Zoning Board shall consider all of the criteria referenced in this section in determining whether the proposed operation or business is generally compatible with the other permitted uses and whether the proposed use will have an adverse effect on the neighbors.

8.4.1 General

A.

Granted by Village Council

The Planning and Zoning Board shall review and recommend to the Village Council which may grant a variance from the strict application and any provision of this Code if the following procedures are followed and findings made.

B.

Variances to be Considered

Any person desiring to undertake a development activity not in conformance with this Code may apply for a variance in conjunction with the application for development review. A development activity that might otherwise be approved by the Village Chief Building Official in consultation with Village Attorney must be approved by the Village Council if a variance is sought. The variance shall be granted or denied in conjunction with the application for development review.

8.4.2 Limitations on Granting Variances

A.

Initial Determination

The Village Council shall first determine whether the need for the proposed variance arises out of the physical surroundings, shape, topographical condition, or other physical or environmental conditions that are specific and unique to the property involved. If so, the Council shall make the following required findings based on the granting of the variance for that site alone.

B.

Required Findings

1.

The Village Council shall approve a variance from the terms of this Code if it is determined that the variance will not be contrary to the public interest and as set forth in Special Exception Uses, where, owing to special conditions, a literal enforcement of the provisions of this chapter will result in unnecessary and undue hardship. In order to authorize any variance from the terms of this chapter, the Village Council must and shall find the following:

a.

The variance is in fact a variance as set forth within this chapter and within the province of the Village Council.

b.

Special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures, or buildings in the same district.

c.

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

d.

Granting the variance requested will not confer on the applicant any special privilege that is denied by this chapter to other lands, structures, or buildings in the same district.

e.

Literal interpretation of the provisions of this chapter would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this chapter and would work unnecessary and undue hardship on the applicant.

f.

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

g.

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

h.

The variance request is not based exclusively upon a desire to reduce the cost of developing the site.

i.

The proposed variance will not substantially diminish property values in, nor alter the essential character of the area surrounding the site.

2.

In granting any variance, the Village Council may prescribe appropriate in conformance with this chapter. Violation of the conditions, when made a part of the terms under which the variance is granted, shall be deemed a violation of this Code. The Village Council may prescribe a reasonable time limit within which the action for which the variance is required shall be begun, or completed, or both. Under no circumstances except as permitted in division 1. above shall the Village Council grant a variance to permit a use not generally or by special exception permitted in the district involved or any use expressly or by implication prohibited by the terms of this chapter. No nonconforming use of neighboring lands, structures, or buildings in the same district and no permitted use of lands, structures, or buildings in other districts shall be considered grounds for the authorization of a variance. Should no building permit be issued concerning the property which is the subject of the variance, then the variance issued concerning the property shall expire one year from the date the variance was approved. For good cause shown, application may be made prior to the expiration of the one-year period for an extension of the variance. The application shall be made before the Planning and Zoning Board who shall make recommendations to the Council. The Council's decision shall be final and binding and will require two public hearings before the village council.

8.4.4 Record of Variances to be Maintained

The Village Clerk shall maintain a record of all variances including the justification for their issuance and a copy of the notice of the variance.

8.5.1 Procedure for Appeals to Village Council

A.

Should any interested party desire to appeal any action of the Village Council with regard to any matter concerning Chapter 16 entitled "Zoning and Land Use Development Regulations" (Code), then such interested person shall file an appeal in accordance with the Florida Rules of Civil Procedure to the Circuit Court Appellate Division within Miami-Dade County, Florida, within thirty (30) days from the date final action is taken by the Village Council on any such matter.

B.

All final action heretofore taken by the Village Council with regard to any matters contained in Chapter 16 or throughout the Chapter elsewhere as contained within the Code, ordinances or resolutions of the Village of Virginia Gardens, are hereby ratified and reaffirmed. (Ord.No. 275)

Any person or persons, jointly or severally, aggrieved by any decision of the Village Council or any officer, department, board, or commission of the Village may apply to the circuit court in the judicial circuit where the Village Council is located for judicial relief within 30 days after rendition of the decision by the Village Council. The proceedings of the circuit court shall consist either of a trial de novo, which shall be governed by the Florida rules of civil procedure, or by petition for writ of certiorari, which shall be governed by the Florida appellate rules. The election of remedies shall lie with the appellate.