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HomeMy WebLinkAboutO-02-04ORDINANCE NO. O-02- 04 AN ORDINANCE OF THE CITY OF SEBASTIAN, FLORIDA, AMENDING LAND DEVELOPMENT CODE SECTION 54-1-2.5, BOARD OF ADJUSTMENT; PROVIDING FOR CONFLICTS; PROVIDING FOR SEVERABILITY; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS; City Council recently conducted a review of City Boards and Committees and determined that due to the Iow number of variances that are submitted to City staff, the City Council should act as the Board of Adjustment when needed; WHEREAS, the Planning and Zoning Commission, on December 6, 2001, following a public hearing on the matter, passed a motion to recommend that City Council act as the Board of Adjustment when needed, NOW, THEREFORE, BE IT ORDAINED BY THE CiTY COUNCIL OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, as follows: Section 1. That section 54-1-2.5 of the Land Development Code, City of Sebastian, Florida, Board of Adjustment, is hereby amended to read as follows: Sec. 54-1-2.5 Board of adjustment A. Establishment. The City Council shall act as the Board of Adjustment. B. Authority, Power and Rules of Procedure 1. Authority. In no instance shall the board grant any use of land in any zoning district other than those uses allowed in such district as a permitted use or a conditional use. 2. Duties and Powers. The Board of Adjustment shall have the following powers. a. Hear and Decide Administrative Appeals. Hear and decide appeals when it is alleged that there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of any Land Development Code or regulation adopted pursuant to this act, unless otherwise provided herein. b. Hear and Decide Requests for Variances. Hear and authorize upon appeal such variance from the terms of the ordinance as will not be contrary to the public interest pursuant to Section 54-1-2.5(C)(2). c. Require Attendance at Hearings and Administer Oaths. The Board of Adjustment shall have the authority to compel the attendance of witnesses at hearings or meetings and to administer oaths. 3. Rules of Procedure. The City Council may establish and adopt Rules of Procedure by Resolution for the Board of Adjustment. All records and official minutes of the Board of Adjustment shall be filed with the office of the City Clerk. C. Criteria for Determinations by the Board of Adjustment 1. Criteria for Review of Administrative Orders. In review of Administrative Orders, the Board of Adjustment may, upon appeal and in conformity with provision of this act, reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination made by an administrative official in the enforcement of any land development regulation or regulation adopted pursuant to this act, and may make any necessary order, requirement, decision, or determination, and to that end shall have all the powers of the officer from whom the appeal is taken. 2. Criteria for Determining Variances. In order to authorize any variance from the terms of this Ordinance, the Board of Adjustment must find the following: a. Existence of Special Conditions or Circumstances. That 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. Conditions Not Created by Applicant. That the special conditions and circumstances do not result from the actions of the applicant. c. Special Privileges Not Conferred. That granting the variance requested will not confer on the applicant any special privilege that is denied by this ordinance to other lands, buildings, or structures in the same zoning district. d. Hardship Conditions Exist. That literal interpretation of the provisions of the ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms of the ordinance and would create unnecessary and undue hardship on the applicant. e. Only the Minimum Variance Granted. That the variance granted is the minimum variance that will make possible the reasonable use of the land, building, or structure. f. Not Injurious to the Public Welfare or Intent of Ordinance. That the granting of the variance will be in harmony with the general intent and purpose of the Comprehensive Plan and this Code, and that such variance will not be injurious to the area involved or otherwise detrimental to the public welfare. g. Conditions and Safeguards May Be Imposed. In granting any variance, the Board of Adjustment may prescribe appropriate conditions and safeguards in conformity with Chapter 163 F.$., the Comprehensive Plan, and any ordinance enacted under its authority. Violation of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation of the ordinance. h. Time Limit May Be Imposed. The Board of Adjustment may prescribe a reasonable time limit during which the applicant shall commence and/or complete the subject actions and conditions approved by the Board. i. No Use Variance Permitted In Specified Instances. Under no cimumstances shall the Board of Adjustment grant a variance to permit a use not generally permitted in the zoning district involved or any use expressly or by implication prohibited by the terms of the ordinance in the zoning district. No nonconforming use of neighboring lands, structures, or buildings in the same zoning district and no permitted use of lands, structures, or buildings; in other zoning districts shall be considered grounds for the authorization of a variance. D. Procedures for Processing Matters Before the Board 1. Appeal Proceedings. As provided in Section 54-1-2.2(D), appeals to the Board of Adjustment concerning interpretation or administration of the Land Development Code may be taken by any aggrieved person or by any person or officer of the City's governing body affected by any decision of the Planning and Growth Management Director or designated administrative personnel. Such appeals shall be taken within a reasonable time, not to exceed ten (10) days after the rendering of the order, requirement, decisions, or determination appealed, by filing with the Planning and Growth Management Director a notice of appeal specifying the grounds thereof. The appeal shall be in the form prescribed by the rules of the Board. The administrative officer from whom the appeal is taken shall, upon notification of the filing and prior to the hearing date, transmit to the Board of Adjustment all papers or materials constituting the record upon which the action appealed was taken. 2. Hearing of Appeal, Notice Required. The Board of Adjustment shall establish a reasonable time for the hearing of appeal, give public notice thereof consistent with Section 54-1-2.8, as well as notice to the parties in interest and decide the same within a reasonable time. At the hearing any party may appear in person or be represented by an agent or by an attorney at law authorized to practice in the State of Florida. Appellants may be required to assume such reasonable costs in connection with appeals as may be determined by the City Council through resolution in setting of fees to be charged for appeals. 3. Procedures for Processing Variances. A variance from the terms of these regulations shall not be granted by the Board of Adjustment unless and until; a. A written application specifying the grounds for the variance is submitted. See Section 54-1-2.5(D)(1 ) Administrative Appeal. b. Notice of public hearing shall be given as identified in Section 54-1-2.8 herein. c. The public hearing shall be held, with the aggrieved parties appearing in person or represented by an attorney at law authorized to practice in the State of Florida. d. The Board of Adjustment shall determine that the application is complete and that granting the variance meets the Criteria for Granting Variance and that the variance is the minimum variance that will make possible the reasonable use of the land, building or structure. 4. Stay of Proceedings. An appeal to the Board of Adjustment stays all work on the premises and all proceedings in furtherance of the action appealed unless the administrative official from whom the appeal is taken certifies to the Board of Adjustment after the notice of appeal is filed with him, that by reason of facts stated in the certificate, a stay would cause imminent peril to life and property. In such case, proceedings shall not be stayed other than by a restraining order, which may be granted by the Board of Adjustment or by a court of record on application, on notice to the Planning and Growth Management Director and on due cause shown. 5. Expiration of Variance Determinations. Variances shall become void if not exercised within six (6) months of the date granted, unless specifically determined otherwise in writing by the Board of Adjustment. 6. Extension of Variance Determinations. Before this six (6) months period has expired, the applicant may make a request to the Board of Adjustment by letter for an additional six (6) months extension. Any further extensions of time shall require a new application to be processed as a new case. 7. Recommendation Filed. On all proceedings held before the Board of Adjustment, the Planning and Growth Management Director shall review the application and file a recommendation on each item. Such recommendations shall be received, heard and filed prior to final action on any item before the Board, and shall be part of the record of the application. (In reference to Administrative Appeals, a summary explanation shall be filed in place of a recommendation). E. Review of Board of Adjustment Decisions. Appeals of decisions by the Board of Adjustment shall be final unless otherwise stated herein. However, any affected party aggrieved by a decision of the Board of Adjustment may seek certiorari review before the Circuit Court of the decision on the record in the manner provided by law within thirty (30) days of the decision of the Board of Adjustment. A petition for writ of certiorari shall, upon filing, stay all proceedings in furtherance of the order or decision appealed from, unless the City Council finds that a stay would cause immediate peril to life or property. Nothing in this section shall be deemed to impair the authority of any court of competent jurisdiction to enjoin or stay actions of the City Council. Section 2. CONFLICT. All ordinances or parts of ordinances in conflict herewith are hereby repealed. Section 3. SEVERABILITY. In the event a court of competent jurisdiction shall hold or determine that any part of this Ordinance is invalid or unconstitutional, the remainder of the Ordinance shall not be affected and it shall be presumed that the City Council of the City of Sebastian did not intend to enact such invalid or unconstitutional provision. It shall further be assumed that the City Council would have enacted the remainder of this Ordinance without said invalid or unconstitutional provision, thereby causing said remainder to remain in full force and effect. Section 4. EFFECTIVE DATE. This Ordinance shall take effect immediately following its adoption by the City Council. The foregoing Ordinance was moved for adoption by Councilmember Hill. The motion was seconded by Councilmember Majcher and, upon being put to a vote, the vote was as follows: Mayor Walter Barnes Councilmember Joe Barczyk Councilmember James Hill Councilmember Edward J. Majcher, Jr. a~Fe Councilmember Ray Coniglio aye The Mayor thereupon declared this Ordinance duly passed and adopted this 13th day of February, 2002. CITY OF SEBASTIAN, FLORIDA ATTEST: ~ A.~M~i°, CMc City Clerk .- Walter Barnes, Mayor Approved as to Form and Legality for Reliance by the City of Sebastian Only: Rich~Stringer, City Atto~ty