§ 3.07.03. Procedure for variances and special exceptions.

A.

Request application. A request for a hearing before the planning board for a variance or special exception shall be made as follows:

1.

A completed application form shall be filed with the planning and zoning director. Such application shall state the pertinent facts on which the request is based. The planning and zoning director may assist the applicant in preparing the application.

2.

An application shall be accompanied by an acceptable site plan with such reasonable information shown thereon as may be required by the planning and zoning director. Such site plan shall include, as a minimum, the following:

(a)

Lot dimensions with property line monuments located thereon.

(b)

Location and size of existing and proposed structures.

(c)

Easements (public and private), water courses, and if existing and proposed, fences, street names, and street right-of-way lines and such information regarding abutting property, as directly affects the application.

B.

Planning board hearing.

1.

The planning and zoning director shall schedule a hearing before the planning board to consider the application. In no event shall such hearing be scheduled more than forty-five (45) days from the date of a complete application.

2.

The hearing provided for under this section shall be for the purpose of reviewing relevant information from the applicant regarding the requested variance and/or special exception. The planning board shall also review written and/or oral comments from the public in accordance with its established procedures.

3.

The planning board shall determine whether sufficient factual data was presented in order to render a decision. If the planning board determines that sufficient factual data was presented, then it shall render a decision to either:

(a)

Approve the request as submitted;

(b)

Approve the request with conditions;

(c)

Disapprove the request.

If the planning board determines that sufficient factual data was not presented, the planning board may continue the hearing until the next scheduled meeting to allow for the preparation of such factual data. Only one (1) such continuation shall be allowed for each requested variance and/or special exception.

C.

Appeal of planning and development board decision.

1.

Within thirty (30) days of the rendering of a decision by the planning and development board regarding a requested variance and/or special exception, an appeal may be filed with the board of county commissioners. Such appeal may be filed by the original applicant, the planning and zoning director, other county staff as authorized, or a real property owner within three hundred (300) feet of the perimeter of the subject property who has standing. To have standing for an appeal, a real property owner must have participated in the matter before the planning and development board, either by speaking on the record at the public hearing or by having a written communication entered into the record for the planning and development board's consideration.

2.

The application for appeal shall be filed with the planning and zoning director who shall schedule a hearing on the appeal with the board of county commissioners.

3.

The board of county commissioners shall apply an appellate standard of review when it evaluates the planning and development board's decision. It shall review the record that was established at the planning and development board hearing below. The appellant and other interested parties with standing that have been permitted to intervene may present oral argument on the established record, but no new testimony or other evidence shall be taken.

4.

The board of county commissioners shall render a decision on the appeal to determine whether: (1) the planning and development board's decision was supported by competent, substantial evidence; (2) whether due process was accorded; and (3) whether the essential requirements of the law have been observed. The board of county commissioners, in reviewing the decision of the planning and development board, may either: affirm the planning and development board's decision; may remand the matter for further proceedings with direction on how the planning and development board failed to comply with the above standards; or may overturn the decision of the planning and development board, thereby granting the petition. If an appeal is remanded to the planning and development board, then it shall only consider and take action based upon the direction from the board of county commissioners indicating how the planning and development board failed to comply with the above standards.

A decision to affirm or overturn the Planning and Development Board's decision by the Board of County Commissioners under this section shall be deemed final, and may be appealed to the Circuit Court of the County by writ of certiorari as provided by law.

5.

Automatic stay. No permits shall be issued for construction or development pursuant to a Planning and Development Board decision until the thirty (30) day time limit for an appeal to the Board of County Commissioners has lapsed with no properly filed notice of appeal or, if an appeal has been timely and properly filed, until the Board of County Commissioners has rendered a final decision thereon.

D.

Administrative approval of Variances . Subject to the criteria in subsection 3.07.03.E., the Planning and Zoning Director may grant an administrative variance as prescribed below. The specific criteria for consideration of an administrative variance, in addition to the general variance criteria included at subsection 3.07.03.E., are as follows:

1.

An administrative variance may be considered for a single setback encroachment or exceedance of maximum lot coverage, but not for multiple setback encroachments or for both a setback encroachment and an exceedance of the maximum lot coverage. Instances where relief is sought for multiple setback encroachments or for both a setback encroachment and an exceedance of the maximum lot coverage are not eligible for an administrative variance, but may request a variance hearing before the Planning and Development Board subject to the general criteria in subsection 3.07.03.E. Likewise, a single application for an administrative variance may not be considered by the Planning and Zoning Director in succession where an applicant is attempting to void these specific eligibility criteria for an administrative variance. In no instance shall an administrative variance exceed the maximum of either:

(a)

Encroachment within setbacks of no more than five (5) percent of any required minimum setback, but not to exceed twelve (12) inches for a residential principal or accessory structure; or

(b)

Exceedance of maximum allowable lot coverage by five (5) percent of the maximum allowable coverage or less for a residential principal or accessory structure, where the five (5) percent amount is calculated based on the maximum lot coverage and not as five (5) percent of the total lot area (e.g., an administrative variance could be considered for up to a forty-two (42) percent lot coverage based on a zoning district's forty (40) percent maximum lot coverage limitation).

(c)

Under no circumstances shall any administrative variance be approved which would allow a reduction of the separation between structures to less than ten (10) feet.

2.

A request for an administrative variance must be submitted in writing on the application form provided by Flagler County and include an as-built survey along with a detailed explanation and justification for the variance.

3.

All adjacent landowners shall be given written notice by U.S. Mail of the proposed administrative variance and an opportunity to object. If no objection is made within thirty (30) days of the date the notice is sent, then the Planning and Zoning Director shall proceed with the administrative variance. If any adjacent landowner objects, then the proposed variance shall automatically be prepared for review by the Planning and Development Board. For purposes of this section, an adjacent landowner is the record owner or owners of a parcel sharing a common point of tangency or boundary with the subject property.

4.

The applicant shall, at the time the application is made, pay an application fee as prescribed by the Flagler County Fee Resolution in effect at the time of submittal of the administrative variance application.

5.

If the administrative variance is denied, the applicant may apply for a variance from the Planning and Development Board as provided for herein and set forth at section 3.07.03. The appeals procedure set forth in section 3.07.04 is not applicable to the Planning and Zoning Director's decisions rendered on administrative variances in this section.

E.

Variance guidelines. A variance may be granted from the terms and provisions of this article where, owing to special conditions relating to the property, a literal enforcement of the provisions of this article will, in an individual case, result in unnecessary hardship. Variances may be granted by the Planning and Development Board in such an individual case of unnecessary hardship upon a written finding based on competent, substantial evidence in the official record that:

1.

There are extraordinary and exceptional conditions pertaining to the particular piece of property in question because of its size, shape, topography, or other unique features that, when considered in whole or in part, creates an unnecessary hardship; and

2.

Such conditions were not created by the affirmative actions of the applicant and the applicant has acted at all times in good faith; and

3.

The variance, if granted, would not cause substantial detriment to the public health, welfare, safety, and morals of the community or impair the purpose and intent of this article; and

4.

No variance may be granted for a use of land or building that is not permitted by this article.

A variance, if granted, shall be the minimum variance necessary to alleviate the hardship. For purposes of this section, an unnecessary hardship shall mean that without the granting of the variance the owner will be deprived of all reasonable use of the property as allowed in the zoning district.

F.

Special exception guidelines. The planning board shall hear and decide upon requests for special exceptions as authorized by land classifications. The board may approve, with conditions, requests which are in harmony with the intent and purpose of the regulations. In making its determination, the board shall be guided by the following:

1.

Ingress to and egress from the property shall provide for automotive and pedestrian safety and convenience, shall not unduly interfere with traffic flow and control, and shall provide access in case of fire or catastrophe.

2.

Offstreet parking and loading areas shall be provided as required, shall take into account relevant factors in subsection 1. preceding, and shall be located to minimize economic, noise, glare or odor effects on adjacent and nearby properties.

3.

Refuse and service areas shall be located with consideration for relevant factors in subsections 1. and 2. preceding.

4.

The proposed use shall be compatible with the availability and location of utility services, whether public or private.

5.

Screening and buffering shall be provided which preserves or improves compatibility and harmony of use and structure between the proposed use and adjacent and nearby properties, according to the type, dimensions and character of the proposed use.

6.

Signs and exterior lighting, if any, shall maintain traffic safety and minimize glare and economic effects on adjacent and nearby properties.

7.

Required yards and open spaces shall be provided.

8.

The height of structures shall be in harmony with that of adjacent and nearby uses and structures.

9.

The economic effect of the proposed use on adjacent and nearby properties shall be positive.

In granting any special exception, the board may prescribe appropriate conditions and safeguards in conformity with these development regulations. Violation of such conditions and safeguards, when made a part of the terms under which the special exception is recommended, shall be deemed a violation of these development regulations. In granting a special exception, the board shall prescribe a time limit within which the uses for which the special exception, if granted, shall be begun or completed, or both. Failure to begin or complete, or both, such use within the time limit shall void the special exception.

G.

Special exception regulations for home occupations.

1.

The applicant must demonstrate to the planning board clear evidence that the proposed home occupation will not:

(a)

Disturb the peace, quiet and domestic tranquility of the residential neighborhood;

(b)

Create excessive odor, noise, parking or traffic above that of the residential neighborhood;

(c)

Create a fire hazard or nuisance;

(d)

Use or generate toxic or hazardous materials or waste.

2.

Special exceptions and permitted uses for home occupations are subject to the following regulations:

(a)

No more than one home occupation shall be permitted within any single dwelling unit (excluding cases where a person requires multiple professional or vocational licenses and the actual performance or work occurs somewhere other than the applicant's dwelling unit).

(b)

Permitted home occupations shall not include the employment of any persons not residing on the premises in the performance of the occupation.

(c)

No one other than residents of the dwelling shall be employed in the conduct of a home occupation (excluding those cases where actual performance of work occurs somewhere other than the applicant's dwelling unit).

(d)

No stock-in-trade shall be displayed or maintained on the premises, and no retail sales on the premises shall occur.

(e)

A home occupation shall produce no noise or obnoxious odors, vibrations, glare, fumes or electrical interference detectable to normal sensory perception.

(f)

No traffic or parking shall be generated by such home occupation in greater volumes than would normally be expected in a residential neighborhood.

(g)

There shall be no exterior indication of the home occupation; no exterior signs shall be used; no other onsite advertising visible from the exterior shall be used that informs the public of the address of the home occupation.

(h)

No mechanical equipment shall be used or stored on the premises in connection with the home occupation except that which is normally used for purely domestic or household purposes or as specifically provided for in a special exception permit.

3.

All special exceptions for home occupation land uses are subject to review and a rehearing of the approved special exception by the planning board upon written and justifiable complaints from surrounding property owners. Such rehearing may result in the revoking of the special exception or additional conditions for continued operation of a home occupation.

4.

Home occupation uses shall be subject to all applicable county occupational licenses and other business taxes.

5.

In the event that the applicant has not had an occupational license in effect for the duration of time that the applicant has been operating the business out of the home, as a condition of any special exception the applicant shall be required to pay all occupational license fees that would have been due plus the maximum statutory penalties and fees as prescribed by state and local law.

H.

Special exception regulations for common household pet animal sanctuary/shelter facilities.

1.

The applicant must demonstrate to the planning and development board, utilizing competent, substantial evidence, that the proposed common household pet animal sanctuary/shelter facility will initially and on a continuous basis adhere to the following standards:

(a)

Residential dwelling unit required. Within all zoning districts in which a common household pet animal sanctuary/shelter facility is permitted as a special exception, a common household pet animal sanctuary/shelter facility shall be accessory to a residential dwelling unit located on the same lot or parcel. For purposes of this requirement, a contiguous lot or parcel may be utilized, provided that all lots or parcels used as part of the common household pet animal sanctuary/shelter facility are combined with the lot or parcel on which the residential dwelling unit is located into a single parcel for assessment purposes. A residential dwelling unit will not be required for any common household pet animal sanctuary/shelter within the AC (agriculture) zoning district or within other zoning districts where common household pet animal sanctuary/shelter facilities are permitted as a special exception use on lots or parcels an acre or greater in size.

(b)

Animal containment. All outdoor areas allocated for use by the animals shall be fenced, walled, caged, or otherwise humanely housed, but not chained, to safely contain the animals. A detailed animal containment plan shall be provided for each and every animal species, to include separation facilities for quarantine and treatment. Additionally, sheltering facilities to protect the animals during severe heat, cold or other inclement weather shall be fully demonstrated. All animal containment areas/structures shall be maintained and kept in good condition at all times.

(c)

Compatible layout/design. Any structures, outdoor runs, and feeding areas on the site shall be laid out and designed in such a manner so as to provide maximum noise reduction, odor prevention, and compatibility with adjoining properties, as appropriate for the type of animal to be housed therein and any existing adjacent uses.

(d)

Maximum number of animals for facilities with outdoor animal areas. The maximum number of animals for facilities with outdoor animal areas shall be limited to:

(1)

On sites less than or equal to one-quarter (¼) acre in size, up to ten (10) animals.

(2)

On sites greater than one-quarter (¼) acre in size, but less than or equal to one-half (½) acre in size, up to twenty (20) animals.

(3)

On sites greater than one-half (½) acre in size, but less than or equal to three-quarters (¾) acre in size, up to thirty (30) animals.

(4)

On sites greater than three-quarters (¾) acre in size, but less than or equal to one (1) acre in size, up to forty (40) animals.

Note 1: A higher numeric threshold than provided herein may be set for additional animals as approved through a super-majority vote of the planning and development board as part of the special exception.

Note 2: A lower numeric threshold of animals permitted per site may be set by the planning and development board based on specific site, surrounding site, and other application circumstances as part of the special exception process.

Note 3: The maximum number of animals for facilities with both outdoor and indoor areas shall be set by the planning and development board.

Note 4: The planning and development board shall also set the numeric standards for sites greater than one (1) acre in size through the special exception process.

(e)

Maximum number of animals for facilities with indoor animal areas. The maximum number of animals for facilities with indoor animal areas shall be set by the planning and development board based on specific layout and amenities of the indoor facilities, the specific animals being cared for, occupants, and similar considerations.

(f)

Hours of operation. The hours for any public visitation/adoption activities shall be restricted to occur daily between dawn and dusk.

(g)

Evacuation plan. A written evacuation plan shall be required as part of any application. The plan should establish procedures for evacuating animals during disasters such as wildfires, flooding and hurricanes.

(h)

Sanitation. At a minimum, outdoor facilities shall be required to collect and dispose of animal waste on no less than a weekly basis.

(i)

Annual facility report. On an annual basis, the facility operator shall provide a written report to the county attesting as to the number of animals maintained on the property and continued compliance with these standards and other special conditions made a part of the approved special exception.

(j)

Semiannual inspection. All facilities shall be subject to semiannual inspections performed by the county and/or its agents verifying that care of the animals is in accordance with the standards of the Humane Society of the United States (HSUS). In conducting the semiannual inspection as provided under this section, the county shall utilize two (2) inspectors, one (1) of which shall be either a county code enforcement officer, a sheriff's office deputy, or other designated person with credentials related to animal care as approved by the county administrator.

(k)

Required spay/neutering. All animals maintained at the facility shall be spayed or neutered, as applicable to a particular species, prior to any adoption. The operator shall maintain paperwork on site available for inspection at any time demonstrating compliance with this requirement.

(l)

Prohibited applicants. An applicant for a special exception or an operator of an approved facility shall be deemed ineligible for application or continued operation if the applicant or operator has been convicted of animal cruelty or neglect, or entered a plea of no contest or otherwise had adjudication withheld.

(m)

Nuisances. In addition to these standards and any specific conditions, an approved facility shall be obligated to be free of any animal-related nuisance as described within the Flagler County Land Development Code, the Flagler County Code of Ordinances, and Florida Statutes. Any failure to remedy an animal-related nuisance shall be grounds for the county to pursue relief including, but not limited to: code enforcement action including the issuance of a citation and/or the posting of the facility as unsafe; a hearing before the planning and development board or the board of county commissioners, as applicable, to reconsider the special exception approval; and, where feasible, injunctive relief.

(n)

Compliance inspections/noncompliance remedies. Flagler County or its agents reserve the right to monitor compliance with the conditions specified above from time to time and for this limited purpose the applicant consents as a condition to its special exception to entry on its property by authorized employees of the county or its agents to determine compliance. In the event the county determines there is noncompliance with any of these standards or any conditions of approval provided by the planning and development board, the county reserves the right either:

(1)

To order compliance with the condition; or

(2)

To order correction of the condition; or

(3)

[To order] revocation of the authorization for the special exception. Nothing included herein shall prevent the county from pursuing other remedies including, but not limited to, injunctive relief. In conducting the inspections as provided under this section, the county shall utilize two (2) inspectors, one (1) of which shall be either a county code enforcement officer, a sheriff's office deputy, or other designated person with credentials related to animal care as approved by the county administrator.

(Ord. No. 97-01, § 1, 1-6-97; Ord. No. 04-22, § 3, 12-20-04; Ord. No. 2011-01, § 2.b.—d., 1-5-11; Ord. No. 2011-10, § 2C., 12-12-11)