§ 902.09. Variances.

(1)

Purpose and intent. This section is established to provide procedures for reviewing variances by the board of adjustment. A variance runs with the land and is a departure from the dimensional or numerical or other technical requirements of the land development regulations where such variance will not be contrary to the public interest and where owing to conditions peculiar to the property and not the result of the actions of the applicant or his predecessors in title, a literal enforcement of the land development regulations would result in an unnecessary and undue hardship.

(2)

Approving authority. The board of adjustment is hereby authorized to grant variances in accordance with the provisions of this section and can attach conditions to variances granted.

(3)

Type of variance to be allowed. The board of adjustment shall have the authority to grant the following variances:

(a)

A variance from the yard area requirements of any zoning district where there are unusual and practical difficulties in carrying out these provisions due to an irregular shape of the lot, topography, or other conditions, provided such variation will not seriously impact any adjoining property or the general welfare.

(b)

Other technical variances that occur when an owner or authorized agent can show that a strict application of the terms of the land development regulations relating to the use of the land will impose unusual and unique difficulties, but not loss of monetary value alone.

(c)

De-minimus setback variance. A de-minimus setback variance can be granted automatically at the staff level, under certain circumstances, without board approval. This applies in the following circumstances where the setback variance:

1.

Is for a structure properly permitted where no form-board survey was required;

2.

Is for 0.5 feet or less from the setback required at the time the structure was constructed or erected on the site; and

3.

Is from property line(s) which have not been altered so as to cause or increase the nonconformity.

(4)

When variances are not allowed.

(a)

No variance shall be granted which would permit the establishment or expansion of a use in a zone or district in which such use is not permitted by these land development regulations, or any use expressly or by implication prohibited by the terms of these land development regulations for said district.

(b)

No variances shall be granted which would permit the establishment or expansion of a special exception use in any zoning district without the approval required in the special exception section, and including specific land use criteria.

(c)

No variance shall be granted which would permit the establishment or expansion of a use requiring an administrative permit in any zoning district without the approval required in the administrative permit section, and including specific land use criteria.

(d)

No variance shall be granted which relates in any way to a nonconforming use, except as allowed in the nonconformities section.

(e)

No variance shall be granted which modifies any definitions contained within these land development regulations.

(f)

No variance shall be granted which would in any way result in any increase in density above that permitted in the applicable zoning district regulations.

(5)

Procedures.

(a)

Any property owner may apply for a variance after a decision by the community development director that an existing property condition or a development proposal of such property owner does not comply with the provisions of these land development regulations.

(b)

The applicant must file an application for a variance along with the appropriate fee payable to Indian River County with the planning division. The application shall be in a form approved by the community development director and shall contain the following information:

1.

Identification of the specific provisions of these land development regulations from which a variance is sought.

2.

The nature and extent of the variance sought; an explanation why it is necessary; and the basis for the variance under section 902.09(3)(a) or (b).

3.

The grounds relied upon to justify the proposed variance.

4.

A legal description of the property, a copy of the warranty deed for the property, and a detailed plot plan of the property.

(c)

On all proceedings held before the board of adjustment, the staff of the planning division shall review the application and file a recommendation on each item. Such recommendation shall be transmitted to the board of adjustment prior to final action on any item before the board of adjustment, and shall be part of the record of the application.

(d)

Notice of the variance, in writing, shall be mailed by the planning division to the owners of all land which abuts the property upon which a variance is sought, at least seven (7) days prior to the hearing. The property appraiser's address for said owners shall be used in sending all such notices. The notice shall contain the name of the applicant for the variance, a description of the land sufficient to identify it, a description of the variance requested, as well as the date, time and place of the hearing.

(6)

Review by the board of adjustment.

(a)

In order to authorize any variance from the terms of these land development regulations, the board of adjustment shall determine that the application for variance is complete, that the public hearing has been held with the required notice and that the opportunity has been given for the aggrieved parties to appear and be heard in person or be represented by an attorney at law, or other authorized representatives. The board of adjustment shall also find that all of the following facts exist before granting a variance:

1.

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.

2.

That the special conditions and circumstances do not result from the actions of the applicant or illegal acts of previous property owners.

3.

That granting the variance requested will not confer on the applicant any special privilege that is denied by the regulation to other lands, buildings, or structures in the same zoning district.

4.

That literal interpretation of the provisions of the regulations would deprive the applicant of rights commonly enjoyed by other properties in the same zoning district under the terms of the regulations and would constitute an unnecessary and undue hardship upon the applicant.

5.

That the variance granted is the minimum necessary in order to make possible the reasonable use of the land, building, or structure.

6.

That the granting of the variance will be in harmony with the general purpose and intent of the land development regulations, and the Indian River County Comprehensive Plan.

7.

That such variance will not be injurious to the surrounding area or otherwise be detrimental to public welfare.

8.

That the property cannot be put to a reasonable use in a manner which fully complies with the requirements of these land development regulations.

(b)

The following regulations also apply to the authorization of a variance:

1.

No nonconforming use of neighboring lands, structures, or buildings in the same zoning district and non-permitted use of lands, structures, or buildings in other zoning districts shall be considered grounds for the authorization of a variance.

2.

No application or request may be reheard or reconsidered unless otherwise directed by a court of competent jurisdiction, or unless new circumstances or information can be presented with a new application.

(c)

In granting any variance, the board of adjustment may make the authorization of the variance conditional upon such alternate and additional restrictions, stipulations and safeguards as it may deem necessary to ensure compliance with the purpose and intent of this chapter and consistency with the Indian River County Comprehensive Plan. Violation of such conditions, when made a part of the terms under which the variance is granted, shall be deemed a violation of this chapter.

Such conditions restrictions, stipulations, and safeguards may include, but are not limited to, time within which the action for which the variance is sought shall be begun or completed or both; the establishment of screening and/or buffering techniques; and provision for extensions or renewals.

(7)

Decision. The board of adjustment shall approve, approve with conditions, or deny the application, furnishing the applicant a written statement of the reasons for any denial. A decision of the board of adjustment may be appealed to the board of county commissioners as provided in section 902.07(5).

(Ord. No. 90-16, § 1, 9-11-90; Ord. No. 2015-004, § 3, 3-24-15)