(a) The Board of Adjustment shall have the power necessary to effectuate, within the constraint of federal, state and local law, all of the duties set forth in this section.
(b) Administrative Review. The Board of Adjustment shall have the authority to hear and decide appeals where it is alleged there is an error in any order, requirement, decision or determination made by the Building Official or the Zoning Official in the interpretation or enforcement of this Land Development Code.
(1) Appeal to Board of Adjustment. Appeals to the Board of Adjustment may be taken by any person aggrieved by any decision of the Building Official or the Zoning Official in the interpretation or enforcement of any portion of this Land Development Code. Appeals to the Board of Adjustment, relating to any decision of the Building Official or the Zoning Official in the interpretation or enforcement of any portion of the Land Development Code, may also be taken by the Town Manager or any Town Commissioner. As utilized in this sub-section, a "person aggrieved" shall be:
a. An individual requesting the interpretation;
b. Any person having a legally recognizable interest in the interpretative opinion, which interest is directly and adversely affected by the interpretation, and which is different than the interest of the community as a whole; or
c. Any person having a definite interest exceeding the general interest in the community good shared in common with all citizens.
Factors to be considered in determining the sufficiency of a person's interest include, but shall not be limited to: (i) proximity of the person's property to the property subject to the interpretative opinion; (ii) character of the neighborhood including the existence of common restrictive covenants and set-back requirements that directly relate to the interpretative opinion; and (iii) the fact that the person is among those entitled to receive notice of a rezoning, special exception, comprehensive plan amendment, site plan approval, or variance called for by the interpretative opinion.
(2) Initiation of appeal. Such appeal shall be taken within a reasonable time not to exceed 30 days following the date of rendition of the interpretation by filing with the Building Official and with the Secretary to the Board of Adjustment a notice of appeal specifying the grounds thereof.
(3) Notice. The Building Official, in cases of an appeal from the determination or interpretation of the Building Official, and the Zoning Official, in cases of an appeal from the determination or interpretation of the Zoning Official, shall within 15 days thereafter transmit to the Board of Adjustment all papers constituting the record upon which the action appealed from was taken. The Secretary to the Board of Adjustment, after receipt of the record, shall fix a time for hearing of the appeal giving public notice thereof at least 15 days in advance of the public hearing as well as due notice to the parties in interest. Any party may appear in person or by agent or attorney at the hearing.
(4) Stay of proceeding. An appeal stays all proceedings in furtherance of the action appealed from unless the Building Official or Zoning Official, as the person from whose determination or interpretation an appeal is being taken, certifies to the Board of Adjustment after the notice of appeal is filed, that by reason of facts stated in the certificate, a stay would, in the Building or Zoning Official's opinion, cause imminent peril to life and property. In such cases proceedings shall not be stayed other than by a restraining order which may be granted by the Board of Adjustment or a court of record on application.
(`75 Code, Appendix A, Art. X, § 1) (Ord. passed 9-26-72; Am. Ord. 85-7, passed 11-12-85; Am. Ord. 99-02, passed 2-17-99; Am. Ord. 2004-02, adopted 7-21-04)
(c) Special Exceptions.
(1) Limitations. The Board of Adjustment shall have the authority to hear and decide only such special exceptions as it is specifically authorized to pass on by the terms of this Land Development Code; to decide such questions as are involved in determining whether special exceptions should be granted; and to grant special exceptions with such conditions and safeguards as are appropriate under this chapter or other applicable ordinances; or to deny special exceptions when not in harmony with the purpose and intent of the Land Development Code. A special exception shall not be granted by the Board unless and until:
a. A written application for a special exception is submitted by the applicant indicating the section of this chapter under which the special exception is sought and stating the grounds on which it is requested.
b. Notice shall be given by the Town at least 15 days in advance of the public hearing. The owner of the property for which a special exception is sought or his agent shall be notified by U.S. first class mail with return receipt requested. Notice of such hearing shall be posted on the property for which a special exception is sought, at the Town Hall, and shall be published in a newspaper of general circulation within the Town.
c. A courtesy notice shall be mailed by the Town to the property owners of record within a radius of 500 feet. The Town's failure to mail or the fact that the intended recipient shall not receive a courtesy notice shall in no way invalidate any action taken by the Town or its boards and commissions.
d. Any party may appear in person or be otherwise represented at the public hearing. The Board shall make such findings and determinations as it is empowered under the various sections of this chapter so to do.
(2) Submittal requirements.
a. Development plans that include complete architectural drawings of all faces of a building and an overhead view shall be submitted with all special exception applications that include a new building(s), facade renovations, or substantial improvements to an existing building. The drawings shall be submitted in color and at the minimum shall include:
1. Architectural style.
2. Exterior construction material specifications.
3. Color charts.
4. A site plan (§ 7A-51).
5. Structure dimensions and setbacks from all property lines.
6. Refuse service area location.
7. Mechanical outdoor equipment location.
8. Master outdoor lighting plan.
9. Screening devices.
10. Master signage plan.
11. Master landscaping plan.
12. Wall or fence details.
13. Other information determined necessary by the Town to ensure consistency with the purpose and intent and the provisions of the Land Development Code.
14. Specific requirements found in § 7A-152(c)(3), and § 7A-52 relating to walls and fences, and Chapter 9A relating to landscaping and trees, all in the Land Development Code.
b. Applications that propose a change of use in an existing building to a special exception use where architectural changes are not required or planned shall not be subject to architectural requirements with the exception of paint color. The building and site shall be retrofitted to meet other special exception criteria to the extent determined by the Board of Adjustment. Landscaping of any existing open space areas and compliance with the signage and lighting requirements shall be required.
c. The applicant shall also submit as a part of the application a narrative that explains how the use and the development will be compatible with surrounding uses in its function, its hours of operation, the type and amount of traffic to be generated, building size and setbacks, its relationship to land values and other factors that may be used to measure compatibility.
(3) Review criteria. Before any special exception shall be issued the Board of Adjustment shall make written findings certifying compliance with the specific rules governing individual special exceptions, and that the grant of the special exception as depicted on the development plans meets or exceeds the following standards:
a. Architectural style. Building design and construction, including but not limited to, exterior building materials specifications, shall conform to the Bungalow, Frame Vernacular, 1800's Tidewater Style, Key West or Gothic Revival architecture. Other historical architectural styles may be permitted upon application to the Board of Adjustment, if the applicant demonstrates and the Board of Adjustment determines that the utilization of such style contributes positively to the historic character of the Town and is consistent with the intent of the Land Development Code. Examples of architectural style shall be available in the office of the Building Official.
b. Compatibility. The special exception, as depicted on the development plans, is compatible with adjacent and nearby uses, developments, structures, and neighborhoods and will not alter the character of the community and neighborhood or be contrary to emerging development trends in the community and the neighborhood.
c. Building orientation. Buildings shall be oriented so as to enhance the appearance of the streetscape.
1. All facades of a building that face a road shall have an entrance to the building that is parallel to the roadway. The building shall not be limited to entrances facing roadways. Alternative entrances facing parking lots, driveways, or open space are permitted. The entrance to the building shall face parallel to the public right-of-way.
2. Each facade that is visible from a public right-of-way shall be designed with full architectural treatment including door and window placements, facade architectural treatments and detail, roof design and building materials applications necessary to give the appearance that each visible facade is a primary facade.
3. The architectural treatment requirements shall also be applied to any building facade that is situated where it is clearly visible from a public area of an adjoining site, unless the Board of Adjustment allows landscape buffering to serve as an alternative to the architectural treatment.
4. Building orientation shall ensure that service areas are placed out of view from public rights-of-way, parking areas, and adjacent properties. Where, because of site constraints service areas cannot be so located, such areas shall be screened from view by vegetative or structural means. Any structural screening shall be architecturally compatible with the principal building in terms of style, color, construction materials and finish.
5. Mass, bulk and scale of all structures shall be compatible with other structures and uses both in the same zoning district and in the neighborhood.
d. Exterior materials and colors. Exterior building materials and colors contribute significantly to the visual impact of a building on a community which in turn, reflects upon the visual character and quality of a community. In order to protect an image of high quality Town aesthetics, exterior building materials and colors shall conform to the following requirements:
1. All buildings shall be faced with materials that exhibit a durable, high quality appearance.
2. Acceptable exterior facing materials shall include those that are consistent with the architectural style of the building.
3. Exterior colors shall be historically consistent colors used along Ocean Avenue. These colors are dominated by pastels and shades of white. Accent colors and colors consistent with the proposed architectural style may be approved if determined to be compatible with the character of surrounding and nearby structures.
4. Building materials and colors shall be consistent around the entire building. The application may include proposed exceptions to this requirement. The Board of Adjustment may grant exceptions, if it is demonstrated that the proposal remains compatible with the Ocean Avenue corridor and adjacent residential uses.
5. Once a final development plan has been approved a change in color(s) shall be made only after application to, and approval by, the Board of Adjustment.
e. Roof design. Roofs are an integral part of building design, and shall be designed and constructed to compliment the character of the building. Roof design and construction shall conform to the following requirements:
1. Roofs shall be constructed of durable high quality material in order to enhance the appearance and attractiveness of the Town. Roofing materials shall be similar in appearance with materials that are historically consistent with the architectural style of the building.
2. The design of roof structures shall be consistent with the architectural style of the building and shall extend to all sides of the building.
3. Roofs shall be designed to be of a height, bulk, and mass so as to appear structural even when the design is non-structural.
f. Refuse service areas.
1. Refuse service areas shall be located in a manner that minimizes impacts to adjacent residential areas.
2. Refuse service areas shall be screened from adjacent properties and rights- of-way by an enclosure that is constructed of durable building materials such as concrete, stone, or brick. The enclosure shall be faced with the same style as the facade of the primary structure on the site. The gate to the enclosure shall have a similar appearance as the facade of the building. The enclosure shall be the same color as the primary structure.
3. Enclosures shall be large enough and located in a manner that service vehicles can access the dumpster while it is in the enclosure.
g. Mechanical equipment operation and location.
1. Mechanical equipment shall be located in a manner that minimizes impacts to adjacent residential properties.
2. Mechanical equipment, including equipment located on roofs shall be screened from view of adjacent residential properties and rights-of-way. Screening shall be of a material that is consistent with the architecture of the building.
h. Lighting.
1. Outdoor lighting shall be arranged so that the light source is shielded from adjacent residential properties and rights-of-way. Light fixtures shall be a type that directs the light downward.
2. Outdoor lighting shall be arranged so that no portions of adjacent residential properties are covered by the light shadow. There shall be no glare of spillover effect of lighting from the property on which a special exception is approved to adjacent properties, and all lighting shall comply with §§ 46-91 through 46-97, Brevard County Code, relating to safeguarding nesting female and hatchling marine turtles from sources of artificial light.
i. Landscaping and trees. Landscaping and trees are subject to specific requirements for special exceptions found in Chapter 9A of this Land Development Code.
j. Signs. Signs are subject to specific requirements for special exceptions found in § 7A-52 of this Land Development Code.
k. Walls and fences. Walls and fences are subject to specific requirements for special exceptions found in § 7A-53 of this Land Development Code.
l. Comprehensive plan. No special exception shall be granted unless it is first determined by the Board of Adjustment that the special exception and development plans are consistent with the Comprehensive Plan. A special exception shall not be presumed to be consistent with the Comprehensive Plan merely because it is listed in the Land Development Code as a special exception in a given zoning district.
(4) Prohibited activities. Special exception uses that include the following activities shall not be approved:
a. Utilizes shared parking from a zoning district that allows a higher intensity use.
b. Combines the property with property in a zoning district that allows a higher intensity of use where it will result in a larger structure on the property proposed for the special exception than otherwise would be permitted.
c. Has a drive-in, drive-up, drive through, or any other similar feature that provides for receipt of goods, services, food, or information from a motor vehicle.
(5) Site plans. No special exception shall be effective unless it conforms to a site plan in compliance with the requirements of § 7A-51, which site plan is approved by the Town Commission. All development shall comply with the site plans considered by the Board of Adjustment, unless the site plan is otherwise modified and approved by the Planning and Zoning Board and/or the Town Commission.
(6) Conditions and safeguards. In granting any special exception, the Board of Adjustment may prescribe appropriate conditions and safeguards in conformity with this Land Development Code. Violation of such conditions and safeguards, when made a part of the terms under which the special exception is granted, shall be deemed to be a violation of this Land Development Code and punishable as provided by this code. The Board shall prescribe a time limit within which the action for which the special exception is required shall be begun or completed, or both. Failure to begin or complete, or both, such action within the time limit set shall void the special exception.
(`75 Code, Appendix A, Art. X, § 2) (Ord. passed 9-26-72; Am. Ord. 85-7, passed 11-12-85; Am. Ord. 2008-08, adopted 9-3-08)
(d) Variances to the provisions of Chapter 7A of the Land Development Code.
(1) When granted. A variance from the terms of Chapter 7A may be granted when it will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of these regulations would result in unnecessary and undue hardship; provided specifically, however, that financial or self-imposed reasons shall not be considered as grounds for establishing undue hardship sufficient to qualify an applicant for a variance.
(2) A variance is authorized only for area, size of structure, size of yards, and open spaces. Establishment or expansion of a use otherwise prohibited shall not be allowed by variance, nor shall a variance be granted because of the presence of nonconformities in the zoning district or uses in an adjoining zoning district. Variances to maximum building heights are not authorized.
(3) Under no circumstances shall the Board of Adjustment grant a variance to permit a use not generally or by special exception permitted in the district involved, or any use expressly or by implication prohibited by the terms of the Land Development Code.
(4) No nonconforming use of neighboring lands, structures or buildings in the same district, and no permitted use of lands, structures, or buildings in other districts shall be considered grounds for the issuance of a variance.
(5) Conditions governing applications. A variance shall not be considered by the Board of Adjustment unless and until a written application for a variance is submitted demonstrating:
a. That special conditions and circumstances exist which are peculiar to the land, structure or building involved and which are not applicable to other lands, buildings or structures in the same district;
b. That literal interpretation of the provisions of this Land Development Code would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this Land Development Code; and
c. That the special conditions and circumstances referred to in division (5)a. above, do not result from the actions of the applicant.
d. If a variance is granted with regard to a condition relating to a structure, the variance shall terminate when the structure, or all of that portion of the structure specifically affected by the variance, is razed or otherwise removed from the affected property, unless the Board of Adjustment otherwise specifies in its final order. With regard to any variance granted before January 1, 2015, no term of said variance shall be construed to be limited, unless the Board of Adjustment's order specifically so provides.
(6) Procedures:
a. Notice of the public hearing shall be given as specified for special exceptions.
b. The applicant shall be required to supply to the Town Clerk a certified list from the Brevard County Property Appraiser of all property owners within a radius of 500 feet from the subject property. A courtesy notice shall be mailed U.S. first mail class with return receipt requested by the Town Clerk to all property owners within that area. The Town's failure to mail or the fact that the intended recipient shall not receive a courtesy notice shall in no way invalidate any action taken by the Town or its boards and commissions.
c. Any party may appear in person, or be otherwise represented at the public hearing.
d. The Board of Adjustment shall make findings as to whether the requirements of division (5) above have been met by the applicant for a variance.
e. The Board of Adjustment shall determine whether the reasons set forth in the application justify the granting of the variance and whether the variance is the minimum variance that will make possible the reasonable use of the land, building or structure.
f. The Board of Adjustment shall further determine whether the granting of the variance will be in harmony with the general cure and intent of this Land Development Code, will not be injurious to the neighborhood or otherwise detrimental to the public welfare.
g. In no case shall the Board of Adjustment grant a variance which will result in a change of land use as set forth in the Comprehensive Plan that would not be permitted in the applicable land use classification.
h. When a portion of a nonconforming structure is to be demolished or razed as a part of a variance application, the percent of the structure to be demolished or razed shall be stated in the variance application.
(7) In granting any variance, the Board of Adjustment may prescribe appropriate conditions and safeguards which will be in conformity with this Land Development Code. 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 this Land Development Code and punishable as provided by this Land Development Code. Under no circumstances shall the Board of Adjustment grant a variance to permit a use not generally or by special exception permitted in the district involved, or any use expressly or by implication prohibited by the terms of this Land Development Code in that district.
(e) Variances to the Provisions of Article IX, Chapter 4A may be granted as provided in §§ 4A-198 through 4A-205.
(f) Variances to the Provisions of coastal setback line established by Chapter 5A of this Land Development Code; provided that the standards for granting a variance thereunder which are set forth in this § 7A-152 shall not apply.
(g) Building Code; Plumbing Code; Mechanical Code; and Gas Code. Variances from provisions of, or appeals from decisions of the Building Official related to, the standard building and construction codes adopted in §§ 4A-20, 4A-21, 4A-65, 4A-81, and 4A-83, of this code, may be granted by the Board of Adjustment pursuant to the specific procedures and based on the standards set forth in the aforementioned standard building and construction related codes.
(h) Unsafe Building Abatement Code. Appeals from decisions of the Building Official related to the Standard Unsafe Building Abatement Code adopted in § 4A-63 of this code, may be granted by the Board of Adjustment pursuant to the specific procedures and based on the standards set forth in the aforementioned code.
(`75 Code, Appendix A, Art. X, § 3) (Ord. passed 9-26-72; Am. Ord. 87-02, passed 5-12-87; Am. Ord. 96-01, passed 4-17-96; Am. Ord. 96-03, passed 4-17-96; Am. Ord. 2006-08, adopted 8-30-06; Am. Ord. 2017-05, adopted 12-20-17)