The purpose of this article is to provide mechanisms for obtaining relief from the provisions of this Land Development Code where hardship would otherwise occur. Three forms of hardship are addressed:

(1)

Division 10.01.00 addresses hardship that would be caused if nonconforming development were required to immediately come into compliance with this Land Development Code;

(2)

Division 10.02.00 addresses the hardship that may be caused in particular cases by the imposition of the Code's development design standards; and

(3)

Division 10.03.00 addresses the hardship that may be caused in particular cases by the Code's resource protection standards.

(Ord. No. 91-6, § 3(10.00.00), 2-11-1992)

The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Nonconforming development means development legally constructed in accordance with regulations in place at the time of such construction or land that does not conform to the use regulations and/or the development design and improvement standards of this Land Development Code and/or the future land use map.

(Ord. No. 91-6, § 3(10.01.01), 2-11-1992; Ord. No. 2023-01, § 2, 6-13-2023)

Nonconforming development may remain in use in its nonconforming state and may only be expanded or improved consistent with the requirements within this division of this Land Development Code.

(Ord. No. 91-6, § 3(10.01.02), 2-11-1992; Ord. No. 2023-01, § 2, 6-13-2023)

(a)

Generally. Nonconforming development or structures shall only be expanded or improved if the expansion or improvement is fully compliant with the requirements of this Land Development Code and the nonconforming condition is not increased as a result of the new construction. Nonconforming development is also subject to the following requirements:

(1)

If a nonconforming development or structure is voluntarily fully or partially demolished, any reconstruction must meet all requirements of this Land Development Code.

(2)

Reconstruction of a nonconforming structure after the structure has been substantially destroyed by fire or other calamity must be consistent with all requirements of this Land Development Code. A structure is substantially destroyed if the cost of reconstruction is 50 percent or more of the fair market value of the structure before the fire or other calamity. If there are multiple structures on a site, the cost of reconstruction shall be compared to the combined fair market value of all the structures.

(3)

Any nonconforming property that existed on June 10,1975, but has changed its usage to a single-family residence shall not be permitted to revert back to duplex usage.

(b)

Special provisions for specific nonconformities.

(1)

Nonconformity with the stormwater management requirements of this Land Development Code. An existing development that does not comply with the stormwater management requirements of this Land Development Code must be brought into full compliance when the use of the development is intensified, resulting in an increase in stormwater runoff or added concentration of pollution in the runoff.

(2)

Nonconformity with floodplain requirements of the Floodplain Management Ordinance of chapter 16, Code of Ordinances. Any structure or development that does not meet the requirements of the Floodplain Management Ordinance in chapter 16, Code of Ordinances, shall be subject to requirements of Chapter 16, Code of Ordinances, to come into compliance.

(3)

Nonconforming boathouses and docks. Boathouses and docks that do not meet the requirements of section 7.02.05 of this Land Development Code are subject to the requirements for repairs and reconstruction under Orange County's ordinances regulating, restricting, and otherwise addressing boat dock construction, as such ordinances may be amended from time-to-time.

(4)

Nonconforming with the parking and loading requirements of this Land Development Code. Full compliance with the requirements of this Land Development Code shall be required where the seating capacity or other factor controlling the number of parking or loading spaces required by this Land Development Code is increased by ten percent or more.

(5)

Nonconforming signs.

a.

Defined. Any sign within the town on the effective date of this Land Development Code or a sign existing within any area annexed to the town after the effective date of this Land Development Code, and except for subdivision signs erected prior to 1990, which is prohibited by, or does not conform to the requirements of, this Land Development Code; except that signs that are within ten percent of the height and size limitations of this Land Development Code, and that in all other respects conform to the requirements of this Land Development Code, shall be deemed to be in conformity with this Land Development Code.

b.

Amortization.

1.

Alternative A.

(i)

All nonconforming signs with a replacement cost of less than $100.00, and all signs prohibited by division 8.02.00, prohibited signs, of this Land Development Code, shall be removed or made to conform within 60 days of the enactment of this Land Development Code.

(ii)

All other nonconforming signs shall be removed or altered to be conforming within seven years of the effective date of this Land Development Code, unless an earlier removal is required by subsection (a) or (b)(3)b.2(ii)C of this section.

2.

Alternative B.

(i)

All nonconforming signs with a replacement cost of less than $100.00, and all signs prohibited by division 8.02.00, prohibited signs, of this Land Development Code, shall be removed or made to conform within 60 days of the enactment of this Land Development Code.

(ii)

Unless an earlier removal is required by subsection (a) or (b)(3)b.2(ii)C of this section, all other nonconforming signs may be maintained for the longer of the following periods:

A.

Two years from the date upon which the sign became illegal under this Land Development Code;

B.

A period of three to seven years from the installation date or most recent renovation date that preceded the enactment of this Land Development Code according to the amortization table in this subsection. If the date of the more recent renovation is chosen as the starting date of the amortization period, the period of amortization shall be calculated according to the cost of the renovation and not according to the original cost of the sign;

C.

Any owner of a sign who requests an amortization period longer than two years shall, within one year from the date of enactment of these regulations, file with the town manager a statement setting forth the cost of the sign, the date of erection, or the cost and date of most recent renovation and a written agreement to remove the sign at or before the expiration of the amortization period applicable to the sign; or

D.

The development review board may grant a variance from the terms of the foregoing amortization schedule for up to one additional year where it finds such additional period of time is necessary in order to avoid unnecessary hardship not caused by the petitioner, and such variance is not contrary to the public interest. Multiple one-year extensions may be granted where warranted, but may only be granted one year at a time.

(c)

Continuation of nonconforming signs. Subject to the limitation imposed by the amortization schedule above, and subject to the restrictions in subsection (a) or (b)(3)b.2(i)A and B of this section, a nonconforming sign may be continued and shall be maintained in good condition as required by this Land Development Code, but it shall not be:

(1)

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

(2)

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

(3)

Altered in any manner that increases the degree of nonconformity.

(4)

Expanded.

(5)

Reestablished after damage or destruction if the estimated cost of reconstruction exceeds 50 percent of the appraised replacement cost as determined by the town manager.

(6)

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

(7)

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

(8)

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

Should any of the conditions in this subsection (c) be violated, the sign shall be removed within 60 days.

(d)

Nonconforming signs along federal highways. If it is determined that nonconforming signs along a federal interstate or primary aid highway may not be removed pursuant to the above provisions, the town council shall develop a plan for their expeditious removal in accordance with state and federal law.

(Ord. No. 91-6, § 3(10.01.03), 2-11-1992; Ord. No. 94-2, § 1(e), 2-8-1994; Ord. No. 2023-01, § 2, 6-13-2023)

(a)

Granted by development review board. The development review board may recommend granting a variance from the strict application of any provision of this Land Development Code, except provisions in articles II, land use, and IV, consistency/concurrency, if the procedures set forth in this division are followed and findings made.

(b)

Variances to be considered as part of development review.

(1)

Any person desiring to undertake a development activity not in conformance with this Land Development Code may apply in writing with 16 copies of all data for a variance in conjunction with the application for development review. A development activity that might otherwise be approved by the town manager must be approved by the development review board if a variance is sought. The variance shall be recommended or denied in conjunction with the application for development review.

(2)

In addition to the requirements in division 12.01.00 of this Land Development Code, an applicant for a variance on existing property shall submit to the chairperson of the development review board with a nonrefundable application fee, as established by resolution of the town council and on file in the town clerk's office, a request for variance including a topographic survey showing all pertinent dimensions attached to an understandable written statement of the variance requested and participate in a preapplication conference. Subsequent to the conference and upon receipt of a formal application the town clerk shall give notice at the expense of the applicant within ten days by certified mail, postage prepaid, to the owners of properties within 500 feet at their last known address. Said notice and letters shall set forth the date, time, place of the next development review board meeting, and the relevant facts pertaining to the application for variance. Said adjacent property owners shall reply with their approval or disapproval, in writing, to the development review board within two days prior to the meeting of the date mentioned in this subsection. The board shall hear the request and forward its recommendation to the town council for final action.

(Ord. No. 91-6, § 3(10.02.01), 2-11-1992; Ord. No. 94-2, § 1(m), 2-8-1994; Ord. No. 99-6, § 4, 10-12-1999)

(a)

Initial determination. The development review board shall first determine whether the need for the proposed variance arises cut of the physical surroundings, shape, topographical condition or other physical or environmental conditions that are unique to the specific property involved. Variances should be granted for conditions peculiar to the property and not the result of actions of the property owner or developer. A variance should not be contrary to the public interest. If so, the board shall make the following required findings based on the granting of the variance for the site alone. If, however, the condition is common to numerous sites so that requests for similar variances are likely to be received, the board shall make the required findings based on the cumulative effect of granting the variance to all who may apply. The board shall not consider, as grounds for approval of a variance, the following:

(1)

That the implementation of these regulations would impose an economic hardship on the cost of the building or redevelopment project.

(2)

That these regulations impose a hardship by decreasing the maximum density of a property in terms of the number of units, square footage of buildings, etc.

(3)

That other adjacent lands, structures or buildings not in conformance with these regulations provide a rationale for a lessening of their application in this specific case.

Variances are approved for a specific property and a specific development plan. They are not transferable.

(b)

Required findings. The development review board shall not vary the requirements of any provision of this Land Development Code unless it makes a positive finding, based on substantial competent evidence, on each of the following:

(1)

There are practical or economic difficulties in carrying out the strict letter of the regulation.

(2)

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

(3)

The proposed variance will not substantially increase congestion on surrounding public streets, the danger of fire or other hazard to the public.

(4)

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

(5)

The effect of the proposed variance is in harmony with the general intent of this Land Development Code and the specific intent of the relevant subject areas of this Land Development Code.

(6)

The variance will not encourage further requests for changes where such a land use would not be deemed appropriate.

(c)

Imposition of conditions. In recommending a development approval involving a variance, the development review board may impose such reasonable conditions and restrictions upon the premises benefited by a variance as may be necessary to allow a positive finding to be made on any of the foregoing factors, or to minimize the injurious effect of the variance. These conditions should further the interest of this Land Development Code which promote the public health, safety and general welfare.

(d)

Review by town council. Any variance request denied or granted by the development review board is subject to review by the town council and final approval, modification or disapproval within 45 days of the notice to the developer of the board's action. Any member of the town council may request, in writing, to the town manager, for review at the next town council meeting, any variance action by the board.

(e)

Record of variances to be maintained. The town manager shall maintain a record of all variances including the justification for their issuance and a copy of the notice of the variance.

(Ord. No. 91-6, § 3(10.02.02), 2-11-1992)

(a)

Additional finding. In addition to the findings required in sections 10.02.03 and 10.02.02, the development review board shall find that the requested variance will not result in an increase in the elevation of the base flood, additional threats to public safety, additional public expense, the creation of nuisances, fraud or victimization of the public, or conflicts with other local ordinances.

(b)

Considerations. Before granting a variance, the development review board shall consider:

(1)

The danger that materials may be swept from the site onto other lands.

(2)

The danger to life and property from flooding or erosion.

(3)

The potential of the proposed facility and its contents to cause flood damage and the effect of that damage on the owner and the public.

(4)

The importance of the services provided by the proposed facility to the community, and whether it is a functionally dependent facility.

(5)

The availability of alternative locations, not subject to flooding or erosion, for the proposed use.

(6)

The compatibility of the proposed use with existing and anticipated neighboring development.

(7)

The relationship of the proposed use to the comprehensive plan and floodplain management program for the area.

(8)

Safe vehicular access to the property in times of flood.

(9)

The expected heights, velocity, duration, rate of rise and sediment transport of the floodwaters and effects of wave action, if applicable, at the site.

(10)

The costs of providing governmental services during and after floods including maintenance and repair of public utilities and facilities.

(11)

The required stormwater management improvements are physically impractical to implement.

(12)

That the application of these stormwater management regulations would result in conditions contrary to other code requirements such as the loss of required parking spaces, the loss of mature trees and/or specimen landscape features, or the creation of traffic safety hazards.

(c)

Special restriction for regulatory floodways. Variances that would increase flood levels during the base flood shall not be issued within any regulatory floodway.

(d)

Flowage easements. No variance that would increase flood damage on other property shall be granted unless flowage easements have been obtained from the owners of all affected properties. In no event shall a variance be granted that would increase the elevation of the base flood more than one foot.

(e)

Notification. All variances to the flood damage prevention regulations shall:

(1)

Specify the difference between the flood protection elevation and the elevation to which the structure is to be built.

(2)

State that the variance will result in increased premium rates for flood insurance up to amounts as high as $25.00 for $100.00 of insurance coverage.

(3)

State that construction below the flood protection level increases risks to life and property.

(f)

Historic properties. Notwithstanding the foregoing requirements, special variances may be granted for the reconstruction, rehabilitation or restoration of structures listed on, or classified as contributing to a district listed on, the National Register of Historic Places, the local register of historic places or the State Inventory of Historic Places. The special variance shall be the minimum necessary to protect the historic character and design of the structure. No special variance shall be granted if the proposed construction, rehabilitation or restoration will cause the structure to lose its historical designation.

(Ord. No. 91-6, § 3(10.02.03), 2-11-1992)

The density or intensity of a use that would have been allowed on a site designated as a protected environmentally sensitive area in the absence of the application of this Land Development Code may be used by "clustering" the development within nonsensitive areas within the project site.

(Ord. No. 91-6, § 3(10.03.01), 2-11-1992)

Development on parcels containing protected environmentally sensitive areas may be clustered on nonsensitive portions of the site by concentrating the number of units or the amount of square footage allowed for the entire site under the otherwise applicable land use designations on those nonenvironmentally sensitive portions of the site. The clustered development shall meet all applicable provisions of this Land Development Code including those in the environmentally sensitive land regulations relating to development activities adjacent to environmentally sensitive areas.

(Ord. No. 91-6, § 3(10.03.02), 2-11-1992)