§ 15-281. Variance, appeal and penalty.

(a)

Deviations from regulations. The zoning manager may grant deviations from any provision of this article where the strict application of the provision to a particular site would create a substantial economic hardship, or to facilitate an affordable housing project where a certified affordable housing certificate exists. In all cases, reasonable efforts must be made to preserve trees per this article. The zoning manager may grant deviations from any provision of this article only when the applicant demonstrates that the purposes of this article will be or has been achieved by other means. If the zoning manager denies a request for deviation from this article because the applicant did not demonstrate that the purposes of the article will be or has been achieved by other means, then the applicant may appeal the decision of the zoning manager to the Development Review Committee (DRC), and the DRC shall review the zoning manager's decision pursuant to the standards set forth in section 34-27, Orange County Code.

(b)

Variance. Upon application by the property owner, the preservation of any tree on the recommended stock list over twenty-four (24) inches DBH may be considered as the basis for the granting of a variance by the Board of Zoning Adjustment (BZA) from the literal application of the provisions of the county's zoning regulations set forth in section 30-43 or subdivision regulations set forth in sections 34-27, 34-28 and 34-29. An administrative variance to chapter 24, Landscaping, Buffering and Open Space requirements regarding landscape islands may be granted to allow for the preservation of a healthy specimen tree as defined in this article. The number, spacing and configuration of landscape islands may be reduced, altered, or reconfigured to encourage the preservation of specimen trees.

(c)

Enforcement Official. The zoning manager, code enforcement officer, or other county designees shall be empowered to issue citations and evaluate a site for its compliance with this article.

(d)

Appeals. Any person adversely affected by the decision of the zoning manager or other county official in the enforcement or interpretation of this article may appeal such decision to the DRC within thirty (30) days. Such appeal shall be made by requesting a hearing in writing to the chairman of the DRC. Such request shall include a summary of the decision being appealed and the basis for the appeal.

Any person adversely affected by the decision of the DRC may appeal such decision to the board of county commissioners by submitting a letter to the chairman of the DRC. Said appeal must be made within thirty (30) days of decision by the DRC. If the decision of the DRC being appealed is related to some application or process which requires a board of county commissioners public hearing, then the appeal shall be heard and considered concurrent with the public hearing on the application. If the decision of the DRC being appealed does not otherwise require a board of county commissioners public hearing, then the appeal shall be promptly forwarded to the board of county commissioners for consideration.

Any person adversely affected by the board of county commissioners' decision may file a petition for a writ of certiorari in the Circuit Court of the County. Such action shall be instituted in accordance with section 30-90.

(e)

Penalty for violation. Violations of this article shall be subject to the following:

(1)

Where violations of this article have occurred, remedial action shall be taken to restore the property consistent with a restoration plan approved by the zoning manager. The restoration plan shall include payment of the required application fee, require tree replacement, and require mitigation of any other damage to the property. Remedial action must be taken within 60 days of receipt of notice of violation or as approved by the zoning manager.

(2)

No certificate of occupancy or certificate of completion shall be issued for any development until all applicable permits or restoration plan conditions have been accomplished.

(3)

Trees removed without a permit or destroyed or which received major damage in violation of section 15-282 must be replaced before the issuance of a certificate of completion or certificate of occupancy by any or any combination of the following:

a.

A comparable size and type tree;

b.

Replacement at a two (2) to one (1) ratio of the cumulative caliper of the trees to be installed to the cumulative DBH of the trees removed, destroyed or damaged. Replacement trees shall be chosen from the recommended stock list per section 15-283 and shall be installed in accordance with section 15-282; or

c.

Payment into the county tree fund in an amount equal to the cost of the two (2) to one (1) ratio replacement per section 15-281(e)(3)b, above.

(4)

Specimen trees removed without permit or destroyed or receiving major damage in violation of section 15-282 must be replaced by any of or any combination of the following:

a.

Replacement at a four (4) to one (1) ratio of the cumulative caliper of the trees to be installed to the cumulative DBH of the specimen trees removed. Replacement trees shall be chosen from the recommended stock list. All trees shall be installed in accordance with section 15-282 before issuance of a certificate of completion or certificate of occupancy; or

b.

Payment into the county tree fund in an amount equal to the cost of the four (4) to one (1) replacement per section 15-281(e)(4)a. above.

(5)

Failure to comply with required remedial action shall be referred to the code enforcement board.

(6)

If the county code enforcement board finds any person in violation of any provision of this article or any condition of any permit issued pursuant to this article, then that person shall be subject to the tree replacement requirements of section 15-281(e) and a penalty not exceeding the sum of five hundred dollars per offense or violation. Each tree, removed, damaged or destroyed, may constitute a separate offense and violation of this article. Each day that a violation of any provision of this article or any permit condition is allowed to continue, including the failure to replace any tree removed, damaged or destroyed pursuant to the provisions of this article, may constitute a separate offense and violation of this article.

(f)

Rules and regulations. The board of county commissioners is hereby authorized to adopt by resolution such rules and regulations as are necessary or proper to implement this article.

(g)

Fees. Appropriate fees shall be established by the board of county commissioners and amended by resolution as necessary.

(Ord. No. Code 1965, § 19A-53; Ord. No. 85-33, § 13, 12-9-85; Ord. No. 2001-19, § 6, 11-6-01)