§ 3-9-6.3. Variances.

(a)

Intent and purpose. The variance process is intended to provide limited relief from the dimensional requirements of the land development regulations in those cases where strict application of those requirements will create a practical difficulty or undue hardship, as distinguished from a mere inconvenience, and prohibiting the use of land in a manner normally allowed under the land development regulations. A variance should provide relief in limited circumstances where the requirements of the land development regulations render the land difficult to use because of some unique, exceptional, or extraordinary physical attribute of the property itself, or some other extraordinary factor of the property for which the variance is requested.

(b)

Applicability.

(1)

The following procedures shall be used to apply for a variance from the dimensional standards or requirements of this Code which do not qualify for an administrative variance.

(2)

The following procedures shall also be used for an administrative variance application only if the zoning official has received a valid written objection.

(c)

Initiation. An application for a variance may be initiated by anyone with a legal interest in the property; however, an applicant who is not the owner of subject property, shall be required to present evidence of legal authority from the owner to submit an application.

(d)

Application requirements. Unless waived by the zoning official, a preapplication conference must take place with the zoning official at least five (5) working days prior to submitting an application. Applications for a variance shall be submitted on forms obtained from and filed with the zoning official. All applications shall state the specific section of the zoning section of these land development regulations for which relief is requested and the grounds for such relief. Applications shall be accompanied by any evidence and additional documentation as specified in this Code or required by the zoning official, and the applicable fee, to be established by resolution of the BCC. The zoning official shall review the application for sufficiency, which includes completeness of the application. If additional data is required, the zoning official shall, within ten (10) working days after receipt of the application, document in writing to the applicant what specifically is needed. Failure of the applicant to submit the required information requested by the zoning official and to make the application complete or sufficient within thirty (30) calendar days of the written request by the zoning official or such extended time as granted by the zoning official shall be considered a withdrawal and the application fee shall be refunded less the administrative fee. Variance applications shall include but not be limited to the following where applicable as determined by the zoning official.

(1)

A concept plan at an appropriate scale showing the related existing and proposed placement of structures on the property, provisions for ingress and egress, off-street parking and off-street loading areas, refuse and service areas and required yards and other spaces.

(2)

A survey including a complete legal description of subject property which shows all existing improvements.

(3)

A narrative description of the project in sufficient detail to provide an understanding of the nature of the variance requested and a statement describing how the requested variance meets the approval criteria for variances as set forth in this Code.

(4)

Any plans, data or other information showing evidence supporting the requested variance, such as, bathometric surveys, floor plans, building elevations, cross sections of buildings, topography, or photographs.

(e)

Action by county staff. The zoning official shall review the application for sufficiency, which includes completeness of the application and consistency with the comprehensive plan, Code of Ordinances, and the land development regulations. Upon receipt of a complete and valid application for a variance, the zoning official shall establish a date, time and place for the public hearing. Upon finding the application to be correct and complete, it shall be scheduled for a public hearing before the next available BZA meeting. Should an error in the application be discovered, the zoning official shall have the discretion to require the applicant to reapply or submit revised or additional information. The zoning official may require that site plans associated with variances be reviewed and comments provided to staff during the variance process, although no site plan approval shall be implied by this review. The zoning official shall investigate the conditions pertaining to a particular variance and shall submit a report to the BZA at the public hearing giving the facts involved and make a recommendation based on the application submitted, the facts known prior to the public hearing, and this Code. The final action by the BZA shall be documented by the zoning official in a decision letter to the applicant, copies of which shall be kept on file. The zoning official shall also create a notice of approval, which shall be recorded in the office of the clerk of the circuit court and made a part of the official records of Charlotte County. The original recorded notice of approval shall be kept on file and a copy mailed to the applicant.

(f)

Notice of public hearing. The county shall provide notice of the public hearing to be held before the BZA in accordance with the following provisions.

(1)

Published notice. Upon receipt of a complete and valid application for a variance, the zoning official shall establish a date, time and place for the public hearing. Published notice shall be given at least fifteen (15) calendar days prior to the date of the public hearing by publication in a newspaper of general circulation in the county. The published notice shall contain a description of the requested variance; address and legal description of subject property; the date, time and place of the public hearing; and shall invite all interested persons to appear and be heard. Failure to comply strictly with published notice requirements shall not invalidate the proceedings.

(2)

Mailed notice. The owners of property located within five hundred (500) feet of the subject property shall be mailed notice of the proposed variance at least fifteen (15) calendar days prior to the hearing. The mailed notice shall contain a description of the requested variance; address and legal description of subject property; the date, time and place of the public hearing; a phone number to contact the county for more information; and shall invite all interested persons to appear and be heard. Notice by mail shall be addressed to the property owner at the address shown in the latest available Charlotte County Property Appraiser Real Property Records. Such notice shall be considered effective when placed in the United States mail, postage paid. Failure to comply strictly with mailed notice requirements shall not invalidate the proceedings.

(3)

Posted notice. A sign shall be posted conspicuously on the subject property. The sign shall contain a description of the requested variance; the date, time and place of the public hearing; and a phone number to contact the county for more information. The sign shall be placed on the subject property at least ten (10) calendar days prior to the public hearing. Failure to comply strictly with posted notice requirements shall not invalidate the proceedings.

(g)

Action by applicant. The applicant, agent or attorney shall appear at the public hearing in person to testify under oath before the BZA, present their case for the application, and answer questions asked of them. The applicant may also initiate any of the following actions.

(1)

Withdrawal of application. An applicant or a legally appointed representative may request that their application be withdrawn at any time. A request to withdraw an application must be in writing to the zoning official unless the applicant makes their request on the record at the scheduled public hearing before the BZA. A written statement of withdrawal shall be signed by all persons who signed the application or by a legally appointed representative. The zoning official may authorize a refund of all or part of the application fee if an application is withdrawn more than fifteen (15) calendar days prior to the scheduled public hearing. If a request to withdraw an application is made less than fifteen (15) calendar days prior to the scheduled public hearing then no part of the application fee shall be refunded.

(2)

Postponement of scheduled public hearing. If an applicant desires to postpone a scheduled public hearing they may request that the scheduled public hearing be postponed to any one (1) of the next four (4) available public hearings. A request to postpone the scheduled public hearing must be in writing and must be received by the zoning official at least fifteen (15) calendar days prior to the scheduled public hearing. The statement to postpone shall be signed by all persons who signed the application or by a legally appointed representative. The zoning official shall then remove the application from the agenda and mail a notice, at least seven (7) calendar days prior to the scheduled public hearing, to the surrounding property owners who were mailed a notice of the original public hearing, notifying them that the application will not be heard at the originally scheduled public hearing but will be heard on the date and time of the requested public hearing. The applicant shall pay the cost of all additional published and mailed notices if such notices are required by the BZA. Failure to receive a mailed notice shall not invalidate the proceedings.

(3)

Request for continuance from the zoning official or BZA. If an applicant desires to continue a public hearing less than fifteen (15) calendar days before the scheduled meeting, they must make such a request in writing to the zoning official prior to the public hearing, or to the BZA, at the public hearing. The zoning official may, one (1) time per application, based on extraordinary circumstances, grant a continuance to any one (1) of the next four (4) available public hearings. Other than the one (1) time grant of continuance by the zoning official. Extraordinary circumstances shall include, but not be limited to, sudden illness or medical condition, death, or discovery of a late objector with their consent. All requests to continue the scheduled public hearing may be granted or denied only by the BZA. The BZA may hold a portion of the public hearing to give those who are present a chance to testify and then continue any action on the matter. If the BZA determines that a continuance is appropriate they may continue action on any application to a date certain at one (1) of their next scheduled public hearings. If directed to do so by the BZA, as soon as practicable thereafter the zoning official shall mail a notice to the surrounding property owners notifying them that the application has been continued and will be heard on the date and time of the next scheduled public hearing. The applicant shall pay the cost of all additional published and mailed notices if such notices are required by the BZA. Failure to receive a mailed notice shall not invalidate the proceedings.

(h)

Action by the BZA. The BZA shall hold a public hearing to obtain public input on the proposed variance. Following the public hearing, together with such other reports or testimony as may be relevant, the BZA may approve, approve with conditions, or deny the requested variance.

(1)

Should the BZA deny a variance, the reasons for denial shall be stated and put in writing for the record. Such reasons shall be based on the approval criteria for variances stated in this Code as they may be applicable to the denial.

(2)

Should the BZA approve a variance, the BZA may impose such conditions and restrictions upon the premises benefited by the variance as may be necessary to allow the positive finding of fact to be made on any of the foregoing factors approval criteria for variances or to minimize any negative effect of the variance.

(3)

Continuance of BZA action. If the BZA determines that a continuance is appropriate, they may continue action on any application. If the BZA continues their action on any application to a date certain and directs the zoning official to mail notice of the continuance then as soon thereafter the zoning official shall mail a notice to the surrounding property owners notifying them that the application has been continued and will be acted on again at the date and time of the next scheduled public hearing and no additional noticing shall be required. If the BZA continues their action on any application without setting a date certain then the zoning official shall publish, mail, and post a notice for the next meeting at which the application will be acted upon according to the regular noticing requirements of this Code. The applicant shall pay the cost of all additional published and mailed notices if required by the BZA. Failure to receive a mailed notice shall not invalidate the proceedings.

(i)

Approval criteria for variances. A variance shall be granted by the BZA only if all of the following approval criteria for variances are found to exist:

(1)

Unique or peculiar conditions or circumstances exist, which relate to the location, size, and characteristics of the land or structure involved, and are not generally applicable to other lands or structures.

(2)

The strict and literal enforcement of the zoning section of the land development regulations would create an undue hardship as distinguished from a mere inconvenience on the property owners. Physical handicaps or disability of the applicant and other considerations may be considered where relevant to the request.

(3)

The granting of a variance would not be injurious to or incompatible with contiguous uses, the surrounding neighborhood, or otherwise detrimental to the public welfare.

(4)

The condition giving rise to the requested variance has not been created by any person presently having an interest in the property and the conditions cannot reasonably be corrected or avoided by the applicant.

(5)

The requested variance is the minimum modification of the regulation at issue that will afford relief.

(j)

Effect of variance approval. Should the board of zoning appeals approve a variance, with or without conditions, the variance may be initiated and continued only if all of the other development standards of this Code and any conditions imposed by the BZA are maintained and complied with.

Any violation of the conditions and safeguards that may be imposed on any variance by the BZA, when made a part of the terms under which the variance is granted, shall be deemed a violation of this Code.

(k)

Time between similar applications. Whenever the BZA has denied an application for a variance, the BZA shall not thereafter consider an identical application for a variance concerning all or part of the same property for a period of six (6) months from the date of such action, except that this requirement may be waived by the positive votes of a majority of the members of the BZA when such action is deemed necessary. Should the variance application, which was denied, be modified, the one-year waiting period shall not apply.

(l)

Administrative variances. If the variance requested is for relaxation of the minimum development standards of no more than ten (10) percent of the requirements or one (1) foot, whichever is greater, the owner may request that the zoning official grant an administrative variance. If, upon proper investigation, the administrative variance is not found to be harmful to adjoining land uses or adverse to the public interest, the zoning official may proceed to grant the administrative variance after the following procedure is completed and no written objection is received from an adjoining property owner within the time period specified. The zoning official shall review the application for sufficiency, which includes completeness of the application and consistency with the comprehensive plan, Code of Ordinances, and these land development regulations.

(1)

Mailed notice. The owners of property immediately adjoining subject property shall be mailed notice of the zoning official's intention to grant a proposed administrative variance. This notice shall be mailed prior to, or on the same day, the published notice appears in the newspaper and shall also contain a description of the requested variance; address and legal description of subject property; the existence of the adjoining property owner's right to object in writing and receive a public hearing before the BZA, and a phone number to contact for more information. Notice by mail shall be addressed to the adjoining property owners shown in the latest available Charlotte County Property Appraiser real property records. Such notice shall be considered effective when placed in the United States mail, postage paid. Failure to comply strictly with mailed notice requirements shall not invalidate the proceedings.

(2)

Published notice. As soon as practicable after receiving a complete and sufficient application for an administrative variance the zoning official shall publish a notice one (1) time in a newspaper of general circulation in the county. The published notice shall include a statement that the zoning official intends to grant the requested administrative variance; and also include a description of the requested variance; address and legal description of subject property; and the existence of an adjoining property owner's right to object in writing and receive a public hearing before the BZA. Failure to comply strictly with published notice requirements shall not invalidate the proceedings.

(3)

Action by objector.

a.

Any adjoining property owner wishing to object to a proposed administrative variance shall submit a written objection within fifteen (15) calendar days of the date the published notice appears in the newspaper. An adjoining property owner shall object in writing to the zoning official regarding a proposed administrative variance and request a public hearing of the matter before the BZA. Such objector shall state their name, the nature of their interest, and the nature of their objection to the proposed administrative variance. Any adjoining property owner wishing to object to a proposed administrative variance shall also attend the scheduled public hearing in person, or by agent or attorney, to testify before the BZA, state the reasons for their objection and answer questions asked of them.

b.

Any objections from other than the adjoining property owners shall be taken into consideration by the zoning official when making a determination on the administrative variance request.

(4)

Action by applicant. If there is a valid objector and the administrative variance is required to go before the BZA then the applicant shall appear at the public hearing in person, or by agent or attorney, to testify before the BZA, present their case for the application, and answer questions asked of them. The applicant may also initiate any of the following actions; withdrawal of an application, postponement of a scheduled public hearing, or request a continuance by the BZA according to the same procedures stated elsewhere in this section of the Code.

(5)

Action by zoning official. The zoning official shall make a determination to deny or approve the requested administrative variance. The final action by the zoning official, or the BZA, shall be documented by the zoning official in a decision letter to the applicant, copies of which shall be kept on file. The zoning official shall also create a notice of approval, which shall be recorded in the office of the clerk of the circuit court and made a part of the official records of Charlotte County. A copy of the recorded notice of approval shall also be mailed to the applicant.

a.

If the zoning official should deny an application for an administrative variance, the zoning official shall state fully in writing to the applicant the reasons for denial. Such reasons shall take into account the comprehensive plan, Code of Ordinances, and the land development regulations as they may be applicable to the denial.

b.

Should the zoning official determine that the requested administrative variance may be approved, the zoning official shall mail and publish the notices required by this Code.

c.

If the zoning official does not receive a written objection within fifteen (15) calendar days of the date the published notice appears in the newspaper the zoning official may approve the administrative variance requested.

d.

If the zoning official does receive a written objection from an adjoining property owner within fifteen (15) calendar days of the date the published notice appears in the newspaper then the zoning official shall schedule a public hearing before the BZA regarding the administrative variance requested and notice that public hearing according to requirements for a regular variance in this Code. The applicant shall be responsible for all additional cost incurred by the county for mailing and publishing additional notices.

(6)

Action by board of zoning appeals. If the zoning official receives a valid written objection from an adjoining property owner, the BZA shall hold a public hearing to obtain public input on the proposed administrative variance. Following the public hearing the BZA may approve, approve with conditions, or deny the proposed administrative variance. The BZA shall state the reasons for their decision, which shall be put in writing for the record, utilizing variance procedures set forth herein.

(Ord. No. 2014-043, § 1(Exh. A), 11-25-14; Ord. No. 2018-012, § 1(Exh. A), 3-27-18)