(A) The City Council shall hear petitions for variances from the terms of the Land Development Code delineated in §§ 170.114, 170.142, and Chapters 178 and 185, as will not be contrary to the public interest where, owing to special conditions, the enforcement of the provisions of the City’s land development regulations would result in unnecessary hardship.
(B) Upon receipt from the Planning and Zoning Board of a recommendation concerning disposition of a requested variance, the City Council shall hold a public hearing and may grant, deny or grant with conditions any variance request upon finding that the request meets the following criteria:
(1) 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 land use category, zoning district or situation.
(2) The special conditions and circumstances identified in paragraph (1) above are not the result of actions of the applicant.
(3) Literal interpretation and enforcement of the Land Development Code regulations would deprive the applicant of rights commonly enjoyed by other properties in the same land use category, zoning district or situation, and would result in unnecessary and undue hardship on the applicant.
(4) The variance, if granted, is the minimum variance necessary to make possible the reasonable use of the land, building or structure.
(5) Granting of the variance request will not confer on the applicant any special privilege that is denied by the development code to other lands, buildings or structures in the same land use category, zoning district or situation.
(6) The granting of the variance will be in harmony with the general intent and purpose of this code, and will not be injurious to the surrounding properties or detrimental to the public welfare.
(7) The variance represents a reasonable disposition of a claim brought under the Bert J. Harris Private Property Rights Protection Act, chapter 95-181, Laws of Florida, that a development order of the city has unreasonably burdened the applicant’s property, based upon the recommendations of the special master appointed in accordance with the act, or the order of a court as described in the act.
The above criteria shall be used to determine the justification for granting of relief from requirements of the development code. All variance requests shall demonstrate the application of each criterion to the specific case.
(C) Financial disadvantages or inconvenience to the applicant shall not of themselves constitute conclusive evidence of unnecessary and undue hardship and be grounds to justify granting of a variance.
(D) Notwithstanding the foregoing criteria, variances may be granted under the authority of the Americans with Disabilities Act as reasonable accommodations based on the disabilities of any applicant or a member of the applicant’s household. For purposes herein, “reasonable accommodation” and “disabilities” shall have the meanings provided under the Americans with Disabilities Act.
(E) Conditions of approval.
(1) Conditions and safeguards. In granting any variance, appropriate conditions and safeguards may be prescribed to ensure compliance with the requirements of the Land Development Code and the code in general. Such conditions may include time limits for the initiation of the variance, specific minimum or maximum limits to regular code requirements, or any other conditions reasonably related to the requirements and criteria of this chapter.
(2) Transfer of Variances. Variances run with the property and the use of a variance may be transferred to another party for use on the same property.
(F) Violation of variance terms or conditions. It is a violation of this code for any person to violate or to refuse to comply with any term or condition of a variance. Violations may be enforced or prosecuted as provided for in the Palm Bay Code of Ordinances.
(G) Administrative variance. An administrative variance involves matters such as setbacks, floor area ratios, frontage requirements, subdivision regulations, height limitations, lot coverage/size restrictions, yard requirements, parking, and other variances which have no relation to change of use of the property in question. An administrative variance may be granted by the City Manager, or designee, as authorized by the procedure set forth and shall be used for a variance from the provisions of this Code limited to improvements existing at the time of application as opposed to planned construction. Administrative variances will not be granted within easements. The maximum amount of the waiver is up to, but not greater than, twenty percent (20%) of the requirement. An application for an administrative variance shall be made by the fee owner of the property on a form prescribed by the Growth Management Department and shall be submitted to the Department with a processing fee which shall be set and may be amended from time to time by City Council in accordance with § 169.004 of the Palm Bay Code of Ordinances. The application shall include a recent survey of the property, a site plan showing the existing structures on the subject property, the general location and use of existing structures on the adjacent properties from which the administrative variance is being requested and a letter of intent explaining the reason and justification for the variance.
(1) Upon receipt of the completed application, to include all supporting documentation as may be required, the Department, prior to making their decision, shall inspect the subject property and its surrounding properties to determine what impact, if any, the proposed request will have on the area.
(2) The Department shall prepare a staff report and render a decision either approving, approving with modifications, or denying the request. In granting any administrative variance, the Department may prescribe any appropriate conditions and safeguards necessary to protect and further the interest of the area and abutting properties.
(3) The City Manager shall review the staff report and recommendation of the Department and approve, approve with additional conditions, or deny the request.
(4) The Department shall mail a courtesy notice containing the City Manager's decision to all property owners whose property abuts the applicant's property, and their tenants and/or agents as noted on the application.
(5) Any aggrieved property owner may appeal the decision of the City Manager within thirty (30) days from the date of the letter. All appeals shall be in the written form prescribed by the Department. A building permit, if required, shall not be issued until the appeal period has expired.
(6) An applicant may appeal the decision of the City Manager in accordance with § 169.006, Palm Bay Code of Ordinances.
(7) Approval may be given for variances to any proposed principal, accessory, or other structure up to twelve (12) inches administratively. Approval may be given for variances to any existing principal, accessory, or other structure up to twenty percent (20%) of the applicable code section, administratively. Such requests will be made by the property owner in writing and supported by a current survey to the Growth Management Director for review and approval. A fee shall be assessed to the request as adopted in the latest fee resolution. All variances approved by the Growth Management Director shall be counter-signed by the Chief Building Official prior to City Manager's consideration. Approval of administrative variances shall be submitted to the City Clerk for recording in the official records of Brevard County at the sole expense of the property owner.
(H) Voluntary inclusionary housing. The City may enter into an agreement with a developer to provide a specified number or percentage of affordable housing units, as defined by F.S. § 125.01055, to be included in a development or allow a developer to contribute to the city's housing fund or other alternatives in lieu of building the affordable housing units. In exchange for a developer fulfilling these requirements for residential or mixed-use residential development, the city may:
(1) Allow the developer density or intensity bonus incentives; more floor space than allowed under the current or proposed future land use designation or zoning; or greater height;
(2) Reduce or waive fees, such as building or development fees or water; or
(3) Grant other incentives.
(Ord. 2010-72, passed 11-4-10; Am. Ord. 2015-58, passed 12-1-15; Am. Ord. 2020-11, passed 2-20-20; Am. Ord. 2022-73, passed 7-21-22)