(a)

Establishment.

(1)

A board of adjustment is hereby established, which shall consist of five members appointed by the mayor, subject to the approval of the town council, each for a term of three years.

(2)

The town council, upon written charges and after public hearing, may remove members of the board of adjustment from office.

(3)

Vacancies occurring in the membership of the board by resignation, illness, or for other causes shall be filled by appointment of the mayor, subject to approval of the town council, for the unexpired term of the member affected.

(b)

Appeals.

(1)

Appeals to the BOA may be filed by any person or entity aggrieved by any decision of the ZO or other entity related to this LDC.

(2)

Appeals shall be filed within 30 days to the town clerk.

(3)

An appeal must specify the action being appealed, the specific reason for appeal, and the specific reasons relief should be granted.

(4)

The ZO shall transmit to the BOA all documents which the action appealed from was taken.

(5)

The BOA shall:

a.

Fix a reasonable time for the hearing of the appeal.

b.

Give public notice and notice to the parties in interest.

c.

Decide the appeal within a reasonable time.

(6)

At the hearing, any party may appear in person or by agent or by attorney.

(c)

Judicial review of decisions of the board of adjustment.

(1)

Any person or entity aggrieved by any decision of the BOA may apply to the circuit court in the judicial circuit where the board of adjustment is located for judicial relief within 30 days after rendition of the decision by the board of adjustment.

(2)

Review in the circuit court shall be either by 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.

(3)

The election of remedies shall lie with the appellant per F.S. § 163.250.

(d)

Powers.

(1)

Administrative review.

a.

To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this LDC.

b.

Such appeals shall include, but not be limited to, appeals from decisions of the administrative official to refuse permits for structures or uses on grounds that the intended structure or use would be dangerous or offensive because of odor, smoke, noise, glare, fumes, gas, fire, or vibration, or hazardous because of danger of fire or explosion.

c.

In deciding appeals on such classes of cases, the BOA shall not reverse the decision of the ZO unless it finds that the proposed structure or use will be no more dangerous, hazardous, or offensive in its operation than permitted principal structures or uses of a similar nature in the same district.

(2)

Special exceptions.

a.

To hear and decide special exceptions to the terms of this LDC upon which the BOA is specifically authorized to pass under the terms of this LDC.

b.

The BOA shall receive:

1.

A recommendation from the PNZ in all cases involving requests for special exceptions.

2.

A recommendation from the ZO in all cases involving requests for special exceptions.

(3)

Variances; conditions governing applications and procedures.

a.

To authorize a variance from the terms of this LDC as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of this LDC will result in unnecessary hardship.

b.

The BOA may not issue a variance from the terms of this LDC unless and until the applicant can affirmatively show and the BOA affirmatively finds that:

1.

An application for such variance has been received, stating fully the special circumstances or conditions applying to the land or building for which such variance is sought.

2.

The circumstances or conditions of the hardship are peculiar to such land or building and shall not apply generally to neighboring lands or buildings.

(i)

The existing circumstances and conditions are such that the strict application of the provisions of this LDC would deprive the applicant of reasonable use of the property.

(ii)

The need for the proposed variance is due to the physical shape, configuration, topographical condition, or environmental conservation of portions of the lot or parcel and such conditions distinguishes the lot from other lots or parcels in the same zoning district.

(iii)

The peculiar circumstances and conditions are not the result of the actions of the applicant and the hardship is not self-created.

(iv)

The variance request is not based exclusively or simply upon a desire to reduce the cost of (or to increase profits from) developing the site.

(v)

The nonconforming use of neighboring lands or buildings shall not be considered adequate grounds for a variance for similar uses.

(vi)

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

(vii)

The variance will be in harmony with the general purpose and intent of this LDC.

(viii)

The development following the proposed variance is compatible with adjacent and nearby development and does not alter the essential character of the surrounding neighborhood.

(ix)

The variance will not be injurious to adjoining or neighborhood uses, property values, or otherwise detrimental to the public health, safety, or welfare.

(x)

The effect of the proposed variance is consistent with the comprehensive plan and does not increase density.

3.

Public notice has been given of a public hearing, and in addition, written notice given to the owner or his agent and, so far as practicable, to directly affected property owners.

c.

At the public hearing, any person may appear by agent or attorney.

d.

The BOA shall make written findings of fact on the standards and criteria set forth above for the granting or denial of the variance.

e.

Nothing in this section shall be construed as permitting variance by the BOA to allow any use of land not clearly permitted by this Code.

f.

A variance cannot be granted to permit a variation in type, density or intensity of land use other than as specifically allowed by the zoning district in which it is located.

g.

A variance shall expire if not utilized within two years of the approval.

h.

In granting any variance, the BOA shall prescribe any conditions and safeguards it deems to be necessary or desirable to ensure that the standards and criteria set forth above can be met.

i.

Violations of such conditions or safeguards, when made a part of the terms under which such variance is granted, shall be deemed to be violation of this Code.

j.

No variance shall be granted to criteria for any conditional use, major or minor development or any site-specific condition of approval imposed by the town council.

k.

No variance shall be granted that will purport to simply modify any definition set forth in this Code rather than obtain a variance from the standard or criteria itself. Instead, variance can be denied and changes to the LDC definitions may be proposed as set forth elsewhere in this Code.

(4)

Decisions of the BOA.

a.

The BOA may reverse, affirm, or modify the decision made by an administrative official, board, or council in the enforcement of any regulation adopted pursuant to this Code.

b.

The BOA shall have all the powers of the officer from whom the appeal is taken.

c.

The concurring vote of a majority of all the members of the BOA shall be necessary to reverse, affirm, or modify any decision.

(5)

Conditional use.

a.

To hear and decide conditional use requests in accordance with the terms of this Code.

b.

Nothing in this section shall be construed as permitting the BOA to allow any use of land not clearly permitted by this Code.

c.

Nonconforming use of neighboring lands or buildings shall not be considered adequate grounds for the issuance of a conditional use permitting similar uses.

d.

Violations.

1.

Violations of conditions or safeguards made a part of the terms of the conditional use permit shall cause the granted conditional use permit to be invalid.

2.

Violations of conditions or safeguards made a part of the terms of the conditional use permit shall be deemed to be violation of this LDC.

3.

Upon notice of violation, all work must cease and the owner or the agent must reappear before the BOA and reapply for a conditional use permit.

e.

The BOA may not issue a conditional use unless and until:

1.

An application for conditional use has been received, stating the section of this LDC allowing the conditional use sought.

2.

Public notice shall be given of a public hearing, including posting of the application (including a site plan and architectural rendering of the conditional use, if applicable) at the subject property. An applicant may appear in person or by agent or attorney at the public hearing.

3.

Written notice shall be given to the owner or his agent.

4.

Courtesy written notice shall be given to property owners within 500 feet.

5.

The concurring vote of a majority of all the members of the board shall be required to approve a conditional use.

6.

The BOA shall find that the reasons set forth in the application justify the granting of a conditional use.

7.

The BOA shall find that the granting of the conditional use will be in harmony with the general purpose and intent of this LDC, is consistent with the goals, objectives and policies of the town comprehensive plan, and will not be injurious to the neighborhood or otherwise detrimental to the public welfare.

8.

In granting any conditional use, the BOA shall prescribe any conditions and safeguards it deems to be necessary or desirable in addition to the requirements of this LDC.

9.

Any new conditional use that has not obtained approval shall be demolished.

(e)

Proceedings.

(1)

The BOA shall adopt rules for the conduct of its affairs, and in keeping with the provisions of this LDC.

(2)

Meetings shall be held at the call of the chair and at such times as the BOA may determine, after due public notice thereof.

(3)

The BOA shall keep minutes of its proceedings, showing attendance and the vote of each member upon each question.

(4)

The BOA shall keep records of its examinations and other official actions filed in the town hall.

(5)

All records of the BOA shall be a public record.

(f)

Stay of proceedings.

(1)

An appeal to the BOA stays all actions in furtherance of the appealed decision.

(2)

If the officer from whom the appeal is taken certifies to the BOA that a stay would cause imminent peril to life or property, the action may continue.

(3)

In this case, a restraining order granted by the BOA or a court of record would stay all actions in furtherance of the appealed decision.

(Code 2015, ch. 21, § 21.6)