§ 30-43. Same—Powers and duties.

The board of zoning adjustment shall have the following powers and duties:

(1)

Appeals. To hear and make recommendations to the board of county commissioners from an order, requirement, decision or other determination made by the zoning manager, charged with the enforcement of the zoning ordinance adopted pursuant to this article, where it is alleged by a written appeal by an aggrieved party that there is error in such an order, requirement or decision of the zoning manager. The appeal shall specify the grounds thereof and shall be filed with the office of the zoning manager not later than thirty (30) calendar days from the date of the zoning manager's determination. The zoning manager, shall, upon the timely filing of an appeal, forthwith transmit to the clerk of the board of zoning adjustment all documents, plans and papers constituting the record and the action from which an appeal was taken.

(2)

Exceptions; applications; procedures. To hear and make recommendations to the board of county commissioners on such special exceptions as the board of zoning adjustment is specifically authorized to pass on by the terms of the zoning regulations; to decide such questions as are involved in determining whether special exceptions should be granted; and to recommend the granting of special exceptions with such conditions and safeguards as are appropriate under the zoning ordinance, or to recommend the denial of special exceptions when not in harmony with the purpose and intent of the zoning ordinance. A special exception shall not be recommended by the board of zoning adjustment unless and until:

a.

A written application for a special exception is submitted indicating the section of the zoning ordinance under which the special exception is sought and stating the grounds on which it is requested.

b.

Notice has been given as required for hearings before the board of zoning adjustment by this article.

c.

The public hearing shall be held. Any party may appear in person or by agent or attorney.

d.

The board of zoning adjustment shall make a finding that it is empowered under the section of the zoning regulation described in the application to recommend granting the special exception and that the granting of the special exception shall not adversely affect the public interest. In recommending the granting of any special exception, the board of zoning adjustment may prescribe appropriate conditions and safeguards, in conformity with the zoning regulations. Violation of such conditions and safeguards, if adopted by the board of county commissioners shall be deemed a violation of this article, and at the discretion of the board of county commissioners, such special exception may be revoked. The board of zoning adjustment shall prescribe a time limit subject to the approval of the board of county commissioners within which the action for which this special exception is required shall be begun or completed, or both. Failure to begin or complete such action within the time limit shall void the special exception. An automatic one-year time limit to obtain a building permit shall apply if the board of zoning adjustment does not prescribe a time limit. A request to extend the time limit shall be made in writing to the zoning manager. The zoning manager may extend the time limit if the applicant provides proper justification for such an extension. Examples of proper justification include, but are not limited to, proceeding in good faith, there is a delay in contract negotiations not attributable to the applicant and unexpected financial hardships which were not known and could not have been reasonably foreseen by the applicant when the special exception was granted. The zoning manager's determination on a request for an extension of time may be appealed to the board of zoning adjustment and then the board of county commissioners.

e.

The board of zoning adjustment considers and weighs those criteria for reviewing special exceptions contained in section 38-78.

(3)

Variances. To recommend to the board of county commissioners upon appeal in specific cases such variance from the zoning ordinance as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of the zoning ordinances would result in unnecessary hardship. A variance from the terms of the zoning ordinance shall not be recommended by the board of zoning adjustment unless and until:

a.

A written application and site plan for a variance is submitted demonstrating 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 district.

b.

Literal interpretation of the provisions of the resolutions would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of the zoning ordinance.

c.

The special conditions and circumstances do not result from the actions of the applicant.

d.

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

e.

Notice of public hearing shall be given as required by this act for hearing before the board of zoning adjustment.

f.

The public hearing shall be held. Any party may appear in person or by agent or by attorney.

g.

The board of zoning adjustment shall make findings that the requirements of subsection (3) have been met by the applicant for a variance.

h.

The board of zoning adjustment shall further make a finding that the reasons set forth in the application justify the granting of the variance, and that the variance is the minimum variance that will make possible the reasonable use of the land, building or structure.

i.

The board of zoning adjustment shall further make a finding that the granting of the variance shall be in harmony with the general purpose and intent of the zoning ordinance, will not be injurious to the neighborhood, or otherwise detrimental to the public welfare.

In recommending the granting of any variance, the board of zoning adjustment may prescribe appropriate conditions and safeguards in conformity with the zoning regulations. Violation of such conditions and safeguards, when made a part of the terms under which the variance is granted and adopted by the board of county commissioners, shall be deemed a violation of this article and punishable under section 30-49. Further, variance approvals shall be in accordance with the application and site plan submitted by the applicant, as may be amended or conditioned by the BZA/BCC.

The board of zoning adjustment may prescribe a reasonable time limit within which the action for which the variance is required shall be begun or completed, or both. Under no circumstances except as permitted above shall the board of zoning adjustment recommend granting a variance to permit a use not generally or by special exception permitted in the zoning district involved, or any use expressly or by implication prohibited by the terms of the zoning regulations in the zoning district. No nonconforming use of neighboring lands, structures or buildings in the same zoning district, and no permitted use of lands, structures or buildings in other zoning district shall be considered grounds for the authorization of a variance.

A requested variance from the requirements of section 38-1501 which complies with each of the following three (3) criteria shall be processed in accordance with section 34-27 and shall not be heard by the board of zoning adjustment:

a.

The requested variance is from a provision of chapter 38, zoning, which is either specifically listed in section 38-1501, site and building requirements, or from the type of standards listed in section 38-1501 as applicable to those properties located in the UR, RCE-2 and RCE-5 districts; and

b.

The variance request is made either in combination with the initial preliminary subdivision plan review or as a change to the preliminary subdivision plan conducted in compliance with chapter 34, subdivision regulations, Orange County Code; and

c.

The requested variance affects more than one (1) lot and may have an effect on the overall site development of the subdivision.

(4)

Decisions of the board of zoning adjustment. In exercising the above-mentioned powers, the board of zoning adjustment may, so long as such action is in conformity with the terms of the zoning regulations, reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination as ought to be made, and to that end shall have powers of the planning and/or zoning director(s) from whom the appeal is taken.

Four (4) members of the board of zoning adjustment must be present in order for a quorum to exist. A majority vote of the board of zoning adjustment shall be necessary to recommend reversal of any order, requirement, decision or determination of the planning and/or zoning director(s), or to recommend in favor of the applicant on any matter upon which it is required to pass under the zoning regulations, or to recommend any variation in the application of the zoning regulations.

The board of zoning adjustment shall submit its recommendations to the board of county commissioners for official action. The board of county commissioners shall then at any regular or special meeting review the recommendations of the board of zoning adjustment and either adopt, reject or modify the recommendations, or schedule a public hearing on any one (1) or more of them; provided, however, that no recommendation shall be rejected or modified unless the board of county commissioners shall first hold a public hearing thereon. No change or amendment shall become effective until fifteen (15) days after the action of the board of county commissioners is filed with the clerk of the board of county commissioners.

(Code 1965, § 37-13; Laws of Fla. ch. 63-1716, § 13; Laws of Fla. ch. 71-795, § 4; Laws of Fla. ch. 74-550, § 2; Ord. No. 91-10, § 4, 4-29-91; Ord. No. 91-29, § 2(Exh. A), 12-10-91; Ord. No. 94-4, § 2, 2-8-94; Ord. No. 97-05, § 13, 4-29-97; Ord. No. 98-02, § 5, 1-27-98; Ord. No. 2003-17, § 4, 11-11-03; Ord. No. 2008-06 , § 2, 5-13-08)