Editor's note— Former §§ 1000.00—1000.04, were repealed by Ord. No. 87-25, § VIII, adopted Sept. 10, 1987. Such former sections derived from Ord. No. 80-8, adopted July 10, 1980, and Ord. No. 86-16, § XLIII, adopted Oct. 23, 1986. Ord. No. 2008-25, § II, adopted Dec. 4, 2008, renumbered § 1001.00 to 72-376.

(a)

The planning and land development regulation commission, as created in division 11, hereinafter referred to in this article as the commission, shall, in addition to its other powers, duties and procedures, hear and decide variance applications, in accordance with the terms of this article.

(b)

A quorum shall be four members. No variance shall be granted, in whole or in part, unless four members concur. The commission may in its bylaws limit the number of new variance cases it hears each month.

(Ord. No. 87-25, § IX, 9-10-87; Ord. No. 89-20, § L, 6-20-89; Ord. No. 00-09, § I, 2-24-00; Ord. No. 2008-25, § II, 12-4-08)

(a)

The county council has the sole authority to hear and decide appeals from any order, requirement, decision, or determination of the zoning enforcement official in the enforcement of this article or any variance or special exception decision of the commission. Appeals may be taken by any person aggrieved or by any officer, board, department or agency of county government adversely affected by any decision of the zoning enforcement official; or variance decision of the commission. An appeal shall be taken within ten working days after rendition of the order, requirement, decision or determination, by filing with the zoning enforcement official and with the legal department, a written notice of appeal specifying its grounds, together with the appropriate fee. The appeal shall be on a form prescribed by the zoning enforcement official.

(b)

Upon receipt of the notice of appeal, the zoning enforcement official shall transmit to the county council all documents, plans, papers, minutes, applications, recommendations or other materials relating to the appealed decision. Any appeal of a decision by the zoning enforcement official or the commission shall be on evidence in the record.

(c)

Effect of appeals on proceedings. An appeal to the county council does not stay any work on the premises unless the zoning enforcement official or the commission certifies to the county council that, by reason of facts stated in that certificate, there is an imminent peril to life or property. Upon the filing of that certificate, all work must be stopped, and an order from the commission, county council or a circuit court, as the case may be, must be obtained before it can be recommenced.

(d)

Public hearing. The county council shall hold a hearing on any appeal after publication of notice stating the time, place and purpose of the hearing in a newspaper of general circulation in the county at least ten days before said hearing. The appellant shall also provide due public notice as set forth in this article. The county council shall conduct the hearing within 60 days upon receipt of a written notice of appeal, unless extended by stipulation of the zoning enforcement official and appellant. Failure to conduct the hearing within this time frame shall not invalidate the decision on appeal. It may, upon appeal, reverse, affirm or modify any order requiring a decision, or determination of the zoning enforcement official or the commission. If the county council finds that the county should pay the costs of an appeal, it may so authorize. No appeal shall be granted in whole or in part unless four members of the county council concur.

(Ord. No. 86-10, § XLIV, 10-23-86; Ord. No. 87-14, §§ XXVII—XXIX, 6-18-87; Ord. No. 87-25, §§ X—XII, 9-10-87; Ord. No. 88-2, § XXXII, 1-19-88; Ord. No. 90-34, §§ 121—123, 9-27-90; Ord. No. 92-6, § LXXIV, 6-4-92; Ord. No. 95-17, § V, 6-15-95; Ord. No. 95-27, § II, 8-3-95; Ord. No. 98-25, § L, 12-17-98; Ord. No. 00-05, § II, 3-9-00; Ord. No. 02-10, § IV, 4-18-02; Ord. No. 2004-20, § VI, 12-16-04; Ord. No. 2008-25, § II, 12-4-08; Ord. No. 2009-19, § III, 8-6-09; Ord. No. 2025-20, § XIV, 8-18-25)

The commission may, except as otherwise provided in subsection (5) of this section, authorize, after due public notice upon application on a form prescribed by the zoning enforcement official, such variance or variances from the terms of articles II or IV as will not be contrary to the public interest when, owing to special conditions, a literal enforcement of the provision of articles II or IV would result in unnecessary and undue hardship. Said variance application shall be heard only if it is presented by the person owning 51 percent or more of the specific area of land involved or upon an administrative application by the county council.

(1)

Application.

a.

An application for a variance shall be submitted to the department, together with all applicable fees. The application shall include the following:

1.

Current survey of property prepared by a registered land surveyor licensed to practice in the State of Florida. The survey shall accurately reflect the current status of the parcel and shall have been completed within the past two years or in lieu thereof, a notarized statement from a title insurance company or attorney that a survey more than two years old continues to accurately reflect the current boundaries of the parcel.

2.

Legal description of property.

3.

A plan to scale of sufficient detail to illustrate the variance.

4.

A written petition demonstrating:

i.

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

ii.

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

iii.

Literal interpretation of the provisions of this article would deprive the applicant of rights commonly enjoyed by other properties in the same zoning classifications, under the terms of the ordinance, and would work an unnecessary and undue hardship on the applicant.

iv.

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

v.

The grant of the variance will be in harmony with the general intent and purpose of this article and the Volusia County Comprehensive Plan, Ordinance No. 90-10, as amended, and that such variance will not be injurious to the area involved.

vi.

For variances to subsection 72-290(1)a. of this article, the petition should demonstrate:

A.

That the proposed use will not be contrary to the public interest and that the spirit and intent of this article will be observed;

B.

That the proposed use will not enlarge or encourage the development or further development of a blighted area; and

C.

That the establishment of an additional such regulated use in the area will not be contrary to any program of neighborhood conservation, or will interfere with any program of urban or rural revitalization.

b.

The department shall review the application. The department has three working days from the date the applicant submits the application to determine if it is complete and correct. If the application is found to be lacking any of the requested information or if the data and exhibits are inaccurate, it will not be considered "filed" for the purpose of processing nor placed on the commission's agenda unless a sufficient application is submitted within three working days after the filing deadline date.

c.

The department shall submit a written report containing its recommendations on each application to the applicant and to the commission at least one week prior to the meeting of the commission before which the application is to be heard, unless an extension is granted by the commission.

(2)

Conditions and safeguards. The commission may impose on the grant of any variance any conditions or safeguards not otherwise required if deemed necessary or desirable in furthering the purposes of this article. Violation of any such conditions or safeguards may result in a revocation of any variance permit, in addition to any other remedy for such violation provided in this article or by law.

(3)

Limitation of power to grant variances. A variance may be granted only to modify the height, area, yard size, parking, residential lot coverage, open space, or distance separation requirements of articles II or IV, to separate lots required to be combined under subsection 72-206(1) of this article, or to construct on substandard lots as defined in this article. Under no circumstances shall the commission grant a variance to permit or expand a use not generally or by special exception permitted in its zoning classification, nor grant a variance for the number of signs or change in permitted signs on a premises. Further, no variance shall be granted which is not consistent with the Volusia County Comprehensive Plan, Ordinance No. 90-10, as amended. A variance may be granted only if the applicant meets all of the conditions listed in subsection (1) of this section. No nonconforming use of neighboring land, structures, signs or buildings in the same zoning classification; and no permitted use of land, structures, signs or buildings in other zoning classifications shall be considered grounds for the authorization of a variance.

(4)

Expiration of variance. If a variance does not begin to serve the purpose for which it was granted within 12 months from the date of rendition, or if its use is abandoned for 12 consecutive months from the date of rendition, it shall expire. A shorter or longer period of time may be set by the commission. Provided, however, that the zoning enforcement official may extend the variance for up to an additional 12-month period of time if the applicant can demonstrate that a good-faith reliance has been ongoing to accomplish the approved variance. Good-faith reliance may include, but is not limited to, the securing of any required permits from other governmental agencies/jurisdictions or the expenditure of substantial funds upon reliance of the approved variance.

(5)

Administrative variances.

a.

Purpose and intent. The administrative variance process applies to single-family parcels where the principal or accessory structures do not comply with the dimensional requirements and to the maximum fence height on corner lots, through lots, and unopened, platted rights-of-way. The administrative variance allows for the continued use or minor encroachment of an existing principal structure or its proposed or existing accessory structures with minimum deviation from specific dimensional standards subject to the restrictions in this subsection. The administrative variance shall be authorized in situations not to exceed ten percent of the dimensional requirements of a residential zoning district. The purpose and intent of this subsection is to create a ministerial process to account for minor deviations without the need for a public hearing or advertising costs. Requested deviations that exceed the threshold or do not meet all the criteria outlined in this subsection will require a PLDRC public hearing.

b.

Applicability. Administrative variances shall apply only to:

1.

Reduce the minimum yard requirement or exceed maximum lot coverage pursuant to section 72-241 for existing single-family residences and their existing or proposed accessory structures within zoning classifications where single-family dwelling units are allowed as a permitted principal use; or

2.

Allow an increase up to two feet from the maximum fence height on corner lots, through lots, and unopened, platted rights-of-ways for single-family residences if the applicant can demonstrate that the second front yard is being used as a side or rear yard and there is no ingress/egress for the second front yard.

c.

Administrative variances shall not apply to waive, alter, or reduce any other provision of this Code. The director of planning and development services, or his/her designee, shall approve administrative variances subject to the determination that the application complies with the criteria in this section. The planning and development services director or designee has the sole discretion to require a public hearing by the PLDRC for any variance application. The approval of an administrative variance does not waive the requirements of a development permit, development order, or building permit required by this Code or by state or federal law.

d.

Administrative variances to dimensional requirements. The following criteria must be met for approval of an administrative variance to the minimum yard requirement or exceeding maximum lot coverage in section 72-241:

1.

The lot must be in a zoning classification where single-family dwelling units are allowed as a permitted principal use.

2.

An existing single-family residence must be located on the parcel.

3.

Lot width must be equal to or greater than 50 feet in width.

4.

Lot size must be equal to or greater than 5,000 square feet.

5.

The reduction of a yard or increase above the maximum lot coverage cannot exceed ten percent of the minimum required dimensional standard of the applicable zoning classification.

6.

Any requests to reduce the minimum yard requirement to less than five feet must be heard by the PLDRC.

7.

Administrative variances may not be granted to waterfront yards.

8.

The administrative variance process cannot be used if there are impacts to wetlands, wetland buffers, or proposed deviations to any environmental regulations.

9.

The administrative variance will only be applicable to one side of a principal or accessory structure. If more than one variance is requested, the request will be subject to a public hearing by the PLDRC.

e.

Administrative variances to maximum fence height. The following criteria must be met for approval of an administrative variance to allow the maximum fence height in a front yard pursuant to section 72-282(2):

1.

An existing single-family residence must be located on the parcel.

2.

The variance is limited to an increase in the maximum fence height of fences by no more than two feet, up to a maximum of six feet, including gates and decorative features on fence posts.

3.

The lot is a corner lot, through lot, or unopened, platted right-of-way.

4.

The construction of the fence must not cause obstruction to visibility as outlined in section 72-277(a)(8).

5.

The applicant must demonstrate how the second front yard is being used as a side or rear yard. No ingress/egress will be allowed for the second front yard.

6.

The fence in the second front yard must be reduced to a maximum of four feet in height where it meets the principal front yard in order to avoid line-of-sight concerns.

f.

Application. An application for an administrative variance shall be submitted to the Planning and Development Services Division, together with all applicable fees. To be considered for review, the application must include the following:

1.

Current survey of the property prepared by a registered land surveyor licensed to practice in the State of Florida. The survey shall accurately reflect the status of the parcel and shall have been completed within the past two years, or in lieu thereof, a notarized statement from a title insurance company or attorney that a survey more than two years old continues to accurately reflect the current boundaries of the parcel.

2.

Legal description of the property.

3.

A site plan with dimensions and of sufficient detail to illustrate the requested variance.

4.

A written description of and justification for the variance request.

A preapplication meeting with a planner is required prior to submittal of an administrative variance application. Planning and Development Services shall review the application upon submittal. If the application is found to be lacking any of the requested information or if the data and exhibits are inaccurate, the application will not be considered "filed" for the purpose of processing. If the application is deficient, the applicant has 30 days to address the deficiencies by submitting the required additional information, pursuant to Florida Statute 125.022(1). If the application is not completed by the 30 days, the application shall be considered abandoned, and no reimbursement of fees shall be due. If the application does not meet the criteria for an administrative variance, the application will be returned to the applicant to resubmit as a full variance application.

g.

Expiration. Expiration of approved administrative variances shall be in accordance with section 72-379(4).

h.

Administrative denial. If the director of planning and development services, or designee, determines that a request does not meet the requirements for an administrative variance, the applicant may apply for a variance through the PLDRC public hearing process pursuant to section 72-379 of the Zoning Ordinance. The applicant will be responsible for the full variance application fee, due public notice, and advertising fees.

(Ord. No. 86-16, §§ XLV—XLVII, 10-23-86; Ord. No. 87-14, § XXX, 6-18-87; Ord. No. 87-25, §§ XIII—XVII, 9-10-87; Ord. No. 89-20, §§ LI, LII, 6-20-89; Ord. No. 90-34, §§ 124, 125, 9-27-90; Ord. No. 91-11, § XXXIII, 5-16-91; Ord. No. 92-6, §§ LXXV, LXXVI, 6-4-92; Ord. No. 94-4, §§ CXII—CXIV, 5-5-94; Ord. No. 98-25, §§ LI, LII, 12-17-98; Ord. No. 2008-25, § II, 12-4-08; Ord. No. 2012-06, § IV, 5-3-12; Ord. No. 2018-05, § XIII, 1-18-18; Ord. No. 2023-27, § II, 8-1-23)

Any person aggrieved by any decision of the county council may apply to the circuit court for review by certiorari, within 30 days after the rendition of the decision of the county council. He shall notify all interested persons, and all persons entitled by this article to receive notice of the original public hearing, by certified mail, return receipt requested, of his taking of such appeal.

(Ord. No. 87-14, § XXXI, 6-18-87; Ord. No. 87-25, § XVIII, 9-10-87; Ord. No. 2008-25, § II, 12-4-08)

(a)

If it is alleged that the commission or county council, as the case may be, has overlooked or misapprehended some facts or points of law, a rehearing of any decision of the commission or county council may be granted by the commission or county council either on the motion of any member voting on the prevailing side, or on the motion of any person aggrieved by its decision. The motion shall be in writing, shall be filed with the zoning enforcement official within ten working days after the rendition of the decision, and shall state its grounds. The movant shall serve it by certified mail or hand delivery upon the chairman of the commission or county council and the county manager and all adjoining property owners previously notified of the hearing, together with a notice stating the date, time and place it will be orally presented to the commission or county council.

(b)

If the commission or county council grants such a motion, it shall state its reasons for doing so, and set a time, date and place for another public hearing upon due public notice.

(c)

The commission or county council shall not otherwise rehear a petition based upon substantially the same facts or issues until at least one year has elapsed from the date of rendition, unless at the time it denies an application, it shall do so without prejudice; and in that event the applicant may apply at anytime thereafter.

(Ord. No. 84-1, § LXII, 3-8-84; Ord. No. 86-16, § XLVIII, 10-23-86; Ord. No. 87-14, § XXXII, 6-18-87; Ord. No. 87-25, § XIX, 9-10-87; Ord. No. 90-34, § 126, 9-27-90; Ord. No. 2004-20, § VI, 12-16-04; Ord. No. 2008-25, § II, 12-4-08)

Applications for appeals under section 72-378 or variances under section 72-379, may be withdrawn by an applicant in the manner set forth as follows:

(1)

An applicant shall withdraw an application by filing a written notice of the withdrawal with the zoning enforcement official, and sending a copy of such request for withdrawal by certified mail to all those individuals to whom the applicant was initially required to give notice by mail of his application (see subsection (2), below); provided, however, an applicant may withdraw an application orally only at the time of the commission or county council hearing, and such oral notice of withdrawal shall be sufficient public notice to all persons (see subsection (3), below).

(2)

When an application is withdrawn more than three days prior to the scheduled commission or county council hearing, as the case may be, excluding Sundays and holidays, the withdrawal shall be without prejudice to reapply within a one-year period provided for by section 72-381. In the event the application is withdrawn before the notice of public hearing is forwarded for publication by the zoning enforcement official, the applicant shall be entitled to a refund of all filing fees.

(3)

When an application is withdrawn at the time of the commission or county council hearing, as the case may be, or within three days prior thereto, excluding Sundays or holidays, the withdrawal shall be with prejudice to a further application based upon the same facts or issues within one year from the time of the withdrawal.

(4)

The county council or commission may waive any of the requirements of this section upon good cause shown by the applicant.

(Ord. No. 87-14, § XXXIII, 6-18-87; Ord. No. 87-25, § XX, 9-10-87; Ord. No. 90-34, § 127, 9-27-90; Ord. No. 2008-25, § II, 12-4-08)