HomeMy WebLinkAboutDocumentation_Environmental Advisory Committee_Tab 05_4/13/2022Agenda Item #5.
Environmental Advisory Committee (EAC)
STAFF MEMO
Meeting: Environmental Advisory Committee (EAC) - Apr 13 2022
Staff Contact: Marguerite Wilson Department: Environmental Advisory
Committee
Variances
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Variances Memo 041322
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Agenda Item #5.
Village of Tequesta
Environmental Advisory
Committee
Memo
To: Environmental Advisory Committee Members
From: Thomas G. Bradford, Chair, EAC IR
Cc: NA
Date: April 6, 2022
Subject: Variances
At EAC meeting on February 9, 2022, Member Marguerite Wilson indicated she would like to
visit the subject of variances, as she believed they were being approved without having a legal
hardship. She believed The Reserve had received a variance for landscaping and felt it was worth
a discussion. Thus, I have created a Cliff Notes version on the subject of variances, which is a
subsection of the bigger subject of Zoning.
"Variance, which is "a means of obtaining a waiver of certain requirements of a zoning ordinance"
and which can be granted only "upon a showing of undue hardship because of characteristics of
the site and that [it] is not in conflict with the public interest," A variance for property zoning
purposes is a request to deviate from current zoning requirements. If granted, it permits the owner
to use his land in a way that is ordinarily not permitted by the zoning ordinance. It is not a change
in the zoning law, but a waiver from the requirements of the zoning ordinance.
VOT definition of variance — "Variance means a variation from the district requirements of this
chapter which is granted by the Planning and Zoning Board or the Village Council, as applicable,
where such variance will not be contrary to the public interest and where, owing to conditions
peculiar to the physical characteristics of that particular properly and not the result of the actions
of the owner, agent, or applicant, a literal enforcement of this chapter would result in unnecessary
and undue hardship." This definition is in line with the typical concept appearing in paragraph
two above.
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Agenda Item #5.
Note that in both cases, paragraphs two and three above, they are predicated upon:
1) A hardship; and
2) The hardship must run with the land, meaning it is due to an unusual characteristic of
the land and not something created or imaginary in the mind of the landowner or
applicant.
The definition of a zoning hardship is - an unusual irregularity in your property (not your personal
circumstances) that makes it uniquely difficult for you to comply fully with the zoning regulations;
the hardship must not be general to other parcels in your zoning district.
It is important to note that it has been my experience in over 35 years of Tequesta residency, that
Tequesta is highly unusual in how it handles variances. In most urban communities a variance is a
serious legalistic matter as it should be. How would you like it if someone next door to you
received a variance that was totally out of character to your home or your neighborhood? That is
exactly what can happen if the process comes off the rails. Tequesta has historically been very
nonchalant about the process of issuing variances that do not meet the standard universal hardship
definition even though their code has the standard language about hardship and it running with the
land. This can be a legal nightmare. All one has to do is show a court that Tequesta did not follow
its own hardship requirement and the approval can be voided by the court. Without following the
code to a "T" Tequesta could become embroiled in costly legal fights. With the passage of time
our society has changed and people will sue you at the drop of a hat.
Here is what the Tequesta Code of Ordinances has to say about variances.
Sec. 78-817. - Considerations for issuance of variances.
In reviewing requests for variances, the building board of adjustment shall consider all
technical evaluations, all relevant factors, all other applicable provisions of the Florida
Building Code, this chapter, and the following:
(1) The danger that materials and debris may be swept onto other lands resulting in further
injury or damage
(2) The danger to life and property due to flooding or erosion damage
(3) The susceptibility of the proposed development, including contents, to flood damage
and the effect of such damage on current and future owners
(4) The importance of the services provided by the proposed development to the village;
(5) The availability of alternate locations for the proposed development that are subject to
lower risk of flooding or erosion;
(6) The compatibility of the proposed development with existing and anticipated
development;
(7) The relationship of the proposed development to the comprehensive plan and floodplain
management program for the area;
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Agenda Item #5.
(8) The safety of access to the property in times of flooding for ordinary and emergency
vehicles;
(9) The expected heights, velocity, duration, rate of rise and debris and sediment transport
of the floodwaters and the effects of wave action, if applicable, expected at the site; and
(10) The costs of providing governmental services during and after flood conditions
including maintenance and repair of public utilities and facilities such as sewer, gas,
electrical and water systems, streets and bridges.
The Tequesta Code next states the conditions for the issuance of a variance.
Sec. 78-818. - Conditions for issuance of variances.
Variances shall be issued only upon:
(1) Submission by the applicant, of a showing of good and sufficient cause that the unique
characteristics of the size, configuration, or topography of the site limit compliance
with any provision of this article or the required elevation standards;
(2) Determination by the building board of adjustment that:
a. Failure to grant the variance would result in exceptional hardship due to the
physical characteristics of the land that render the lot undevelopable; increased
costs to satisfy the requirements or inconvenience do not constitute hardship;
b. The granting of a variance will not result in increased flood heights, additional
threats to public safety, extraordinary public expense, nor create nuisances, cause
fraud on or victimization of the public or conflict with existing local laws and
ordinances; and
c. The variance is the minimum necessary, considering the flood hazard, to afford
relief,
(3) Receipt of a signed statement by the applicant that the variance, if granted, shall be
recorded in the office of the clerk of the court in such a manner that it appears in the
chain of title of the affected parcel of land; and
(4) If the request is for a variance to allow construction of the lowest floor of a building, or
substantial improvement of a building, below the required elevation, a copy in the record
of a written notice from the floodplain administrator to the applicant for the variance,
specifying the difference between the base flood elevation and the proposed elevation of
the lowest floor, stating that the cost of federal flood insurance will be commensurate
with the increased risk resulting from the reduced floor elevation (up to amounts as high
as $25.00 for $100.00 of insurance coverage), and stating that construction below the
base flood elevation increases risks to life and property.
For starters, one can see this is very old language as it makes reference to the old Board of
Adjustment that was done away with about 20 years ago. The language seems fixated on flooding,
debris etc. This is in need of an update. Aside from that, no matter if the variance is being issued
by the Planning and Zoning Board or the Village Council, in my opinion, there should also be a
requirement that when there is a motion to approve or deny the variance that the maker of the
motion be required to recite the Code required conditions one by one and state that either the
K,
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Agenda Item #5.
applicant has met each condition or whether they feel the applicant has not met the conditions
where he/she feels they have not been met.
An updated Code section on this subject would likely look like the hypothetical one below for the
conditions or findings that result in the hearing which is a quasi-judicial hearing, a much more
legalistic meeting than one typically encounters in Tequesta. Please keep in mind that personally,
I do not think it is wise to allow a Planning and Zoning Board to grant variances. For me, this is a
subject wherein only the accountable elected officials should be involved, not volunteers.
Nevertheless, it is common for some or all variances to go to another Board beside the elected
officials. If it stays that way, I think it is imperative to, no less than once per year, have a special
meeting of each body that has a part in the following where the subject matter is a refresher course
on each of the following elements:
o Quasi -Judicial Hearings
o Variances, criteria for granting
o Ex Parte Communications
o Special Exception Public Hearings, criteria for granting
o Florida's Sunshine Law
For comparison purposes click this link to see the variance requirements of the Town of Jupiter,
which does use a zoning board of adjustment to consider variances.
htlps://Iibraly.municode.com/fl/jupiter/codes/code of_ordinances?nodeld=SPBLADERE_CH27
ZO ARTIIAD DIV4ZOBOAD S27-124VA
Hypothetical new variance code:
"Sec. XYZ. ABC - Variance Conditions or Findings
(a) The village council may authorize upon appeal such variance from the terms of this
chapter as will not be contrary to the public interest where, owing to special conditions,
a literal enforcement of this chapter will result in unnecessary and undue hardship. In
order to authorize any variance from the terms of this chapter, the town council must and
shall find the following:
(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 zoning district.
(2) The special conditions and circumstances do not result from the actions of the
applicant.
(3) Granting the variance requested will not confer on the applicant any special
privilege that is denied by this chapter to other lands, buildings or structures in this
same zoning district.
(4) Literal interpretation of this chapter would deprive the applicant of rights
commonly enjoyed by other properties in the same zoning district under the terms
of this chapter and would work unnecessary and undue hardship on the applicant.
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Agenda Item #5.
(5) The variance granted is the minimum variance that will make possible the
reasonable use of the land, building or structure.
(6) For granting of a variance to sections_? or ? , pertaining to the
regulation of nonconforming uses, the following additional findings shall be made
pertaining to the nonconforming use for which the variance is requested:
a. It is the continuance of a unique hotel or residential use that has, for at least
15 years proven compatible with the surrounding uses; and
b. Neither rezoning to a district which would allow the use, nor inclusion of the
subject use as a permitted or special exception use in the district would act to
achieve the preservation of the subject use without opening the possibility of
the incursion of uses incompatible with the immediately surrounding area and,
further, such variance shall:
i. Be granted only for the continuation of the same hotel or residential
use; and
ii. Require the applicant to submit a declaration of use limiting the
utilization of the property for which the variance was granted to the
same use as that existing at the time the variance was granted.
(7) The grant of the variance will be in harmony with the general intent and purpose of
this chapter, and such variance will not be injurious to the area involved or otherwise
detrimental to the public welfare. In granting any variance, the village council may
prescribe appropriate conditions and safeguards in conformity with this chapter.
Upon granting a variance the village council may require the landowner to provide a
declaration of use agreement which shall be recorded in the public records to ensure
continuing compliance with village council -imposed conditions of such grants.
Violation of such conditions and safeguards, when made a part of the terms under
which the variance is granted, shall be deemed a violation of this chapter.
(b) The village council may prescribe a reasonable time limit within which the action for
which the variance is required shall begin or be completed or both. Under no
circumstances, except as permitted in subsection (a) of this section, shall the village
council grant 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 this chapter 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 districts shall be considered grounds for the
authorization of a variance."
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