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DEPARTMENT OF DEVELOPMENT SERVICES PLANNING BOARD BRIEFING

September 13, 2021 – Agenda Item C.2

− Discuss and consider changes to the variance process for density to conform to the City Charter and reflect the similar process change adopted by the City for a variance to building height. Staff requests direction from the P lanning B oard regarding this potential process change.

REQUEST:

Background: On September 19, 2019, the City Commission approved Ordinance No.1639 which, among other things, modified the procedure for obtaining a variance for a building height exceeding forty-five (45) feet. The revised procedure is in compliance with the City Charter (Section 6.04) which states that “the City Commission may grant a variance to individual parcels upon petition and proof that the variance will not be contrary to the public interest when, owing to special conditions, a literal enforcement of this section would result in unnecessary hardship.”

The City Commission and City Attorney recognized that the existing language that required a variance for height to go to the Board of Adjustment, the Planning Board, and the City Commission could, in effect, preclude an applicant from appearing before the City Commission which is the political body given the explicate authority by the City Charter to grant such variances. Current legal thought is that, if the Board of Adjustment or the Planning Board were to deny the variance, the process would end without an appearance before the City Commission. Ordinance No. 1639 facilitated a text amendment to Policy II.2.1 of the Comprehensive Plan and Sections 4-39, 4-40, and 4-42 of the Land Development Code. A copy of that ordinance is attached to this briefing for the Board’s reference. In like manner, Section 6.01 of the City Charter empowers the City Commission to grant a variance to individual parcels for a residential density greater that ten (10) units per acre for permanent occupancy dwellings and twenty-eight (28) units per acre for transient accommodations (motels, hotels). Policy II.2.2 (a) (2) of the Comprehensive Plan currently stipulates that “approval by the Board of Adjustment, Planning Board, and a favorable supermajority vote of four Commission members is required to allow development at a density greater than ten (10) residential dwelling units per gross acre or twenty-eight (28) transient lodging rooms per gross acre”. This same policy section places a limit on the density that can be granted by a variance. That limit is twelve (12) residential dwelling units per gross acre and thirty (30) transient lodging rooms per gross acre. These limits are not contained in the City Charter. Section 4-41 of the Land Development Code also contains the caps of 12 and 30 units per acre detailed above and Section 4-41 (2) (c) contains language requiring that the variance request be approved by the Board of Adjustment, the Planning Board, and a favorable supermajority vote of the City Commission. In the same way that the building height procedure was thought to be in conflict with the City Charter, the procedure outlined in the Comprehensive Plan as

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well as the Land Development Code for a density variance also appears to be in conflict with the City Charter. Staff requests that the Planning Board provide direction as to whether or not staff should pursue text amendments to both the Comprehensive Plan as well as the Land Development Regulations to allow variances for density to go directly to the City Commission for consideration. This procedure would be in compliance with the language in the City Charter. Another item for discussion is the limits of 12 and 30 units placed on a density variance. These limits are not in the City Charter but are in the Comprehensive Plan and the Land Development Regulations. Staff requests that the Planning Board discuss and provide direction as to whether these limits should remain in the aforementioned documents or should they be modified or eliminated and allow density to be determined by the specific circumstances of the variance request? Attached are the various sections of the City Charter, the Comprehensive Plan, and the Land Development Regulations referenced in this briefing. Public Comment Any written public comments received as a result of this request will be provided to the Board. Sample Motions Sample motions are provided for form only, and are not to be considered a recommendation by city personnel.

Motion to Recommend Text Amendments: In reference to the procedure for a density variance, I move to direct city staff to prepare text amendments for the Comprehensive Plan and the Land Development Regulations to revise the process for a density variance to allow those variance requests to go directly to the City Commission for consideration. Motion to Deny Text Amendments: In reference to the procedure for a density variance, I move to direct staff not to prepare text amendments modifying the density variance procedure and allow the language in the Comprehensive Plan and Land Development Regulations regarding such variance requests to remain as currently written. Motion to Recommend Modifying Density Limits: In reference to the density limits for a variance contained in the Comprehensive Plan and the Land Development Regulations, I move to direct staff to explore options for these limits including increasing the limits or eliminating the limits. Motion to Deny Modifying Density Limits:

In reference to the density limits for a variance contained in the Comprehensive Plan and the Land Development Codes, I move to leave the limits as currently written in both aforementioned documents.

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ORDINANCE NO. 1639

AN ORDINANCE OF THE CITY OF COCOA BEACH, FLORIDA, AMENDING APPENDIX B OF THE COCOA BEACH CODE OF ORDINANCES, COCOA BEACH LAND DEVELOPMENT CODE; AMENDING ARTICLE IV, "RULES OF CONSTRUCTION" AND ARTICLE VIII, "BOARDS" WITHIN CHAPTER I, "PURPOSE AND GENERAL PROVISIONS"; AMENDING ARTICLE Ill, "DEVELOPMENT AND CONSTRUCTION" WITHIN CHAPTER Ill, "DESIGN STANDARDS"; AMENDING ARTICLE IV, "VARIANCE, WAIVERS AND APPEALS" WITHIN CHAPTER IV, "APPLICATION AND REVIEW PROCESSES"; INCORPORATING RECITALS; AND PROVIDING FOR CODIFICATION, CONFLICTS, SEVERABILITY, AND AN EFFECTIVE DATE.

WHEREAS, Chapter 163, Florida Statutes requires that municipalities maintain Land Development Regulations that are consistent with and implement their Comprehensive Plans; and

WHEREAS, the City Commission finds that this ordinance will promote the public health, safety, welfare, economic order, and public interest; and,

WHEREAS, the Planning Board and the City Commission both find that the proposed amendments are consistent with the City Charter and will be internally consistent with the remainder of the City Code of Ordinances; and,

WHEREAS, the City Commission and the Planning Board both find that the proposed amendments will be consistent with the City's 2025 Comprehensive Plan.

NOW, BE IT ORDAINED BY the City Commission of the City of Cocoa Beach, Florida:

SECTION 1. Recitations. The above recitals are true and correct and by this reference are hereby incorporated herein and made an integral part hereof as though fully set forth herein.

SECTION 2. Enactment. The referenced portions of Appendix B of the Cocoa Beach Code of Ordinances, the Cocoa Beach Land Development Code, are amended to read as set forth in the attached Exhibit "A".

SECTION 3. Codification. The provisions of this Ordinance shall be codified as, and become and be made a part of the Code of Ordinances of the City of Cocoa Beach. The sections of this Ordinance may be renumbered or re-lettered to accomplish such intention.

SECTION 4. Conflicts. All ordinances or parts of ordinances in conflict herewith

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are hereby repealed to the extent of such conflict.

SECTION 5. Severability. In the event that any word(s), phrase(s), portion(s), sub-sub-section(s), sub-section(s), or section(s) of this Ordinance, is contrary to law, or against public policy, or shall for any reason whatsoever held to be invalid, illegal or unconstitutional, by any court of competent jurisdiction, such word(s), phrase(s), portion(s), sub-sub-section(s), sub-section(s), or section(s) of this Ordinance shall be null and void, and shall be deemed severed, and a separate, distinct, and independent provision from the remaining provisions of this ordinance, and such holding shall in no manner affect the validity of the remaining words, phrases, portions, sub-sub-sections, sub-sections, or sections of this Ordinance, which shall remain in full force and effect. This ordinance shall be construed in a manner to accomplish, to the greatest extent legally possible, the purposes of this ordinance as expressed herein.

SECTION 6. Effective Date. This ordinance shall become effective upon adoption by the City Commission.

Upon Motion by Commissioner kl, \\er , seconded by Commissioner Weil i \QB , this Ordinance was duly adopted at a Regular Meeting of the City Commission of the City of Cocoa Beach, Florida, held on the __13_ day of '.e:ep\:e rober: , 2019.

Ayes: Nays: 0Absen;J;/4;'

alik, Mayor-Commissioner

ATTEST:

~ ¥CRDo ..-G'2oreanaKalaghchy, MMC ~ City Clerk

First Reading : Se 9-\-ev:ob&c E>" /;lo19 Date Posted: ::Sc-'{2:K'r:7 bR,e Co J ~o 19 Date Published: B1..'r'2JUS\:: .9 ;l. /),019 -:Se.p~J'Y'lbu° \.;l;,i-01q

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CHAPTER I - PURPOS~ AND GENERAL PROVISIONS

ARTICLE IV. - RULES OF CONSTRUCTION

Section 1-20. - Definitions.

B. Definitions. For the purpose of these regulations, the following definitions apply, unless they are found to be inconsistent with the intent of the city commission, the City Charter or the Comprehensive Plan:

158. Variance. A variance from the board of adjustment is a type of formal modification of the dimensional or numerical requirements of the LDC regulations where not contrary to the public interest and where, owing to conditions peculiar to the property, and not the result of the actions of the applicant, a literal enforcement of these regulations would result in unnecessary and undue hardship. As used in section 4-39 of these regulations, a variance may be approved by the board of adjustment and it is authorized only for height, area and size of structure or size of yards and open spaces to the extent that such variance is consistent with the Comprehensive Plan and City Charter~ Applications for a variance for a building height to exceed 45 feet shall be governed solely by section 4-40.

206. Waiver. A grant of permission that authorizes an applicant to deviate from specific standards or provisions of these regulations. A waiver may be granted by the administrator, city manager, or the city commission, where and as specifically permitted throughout these LDC regulations. Any waiver will not be contrary to the public health, safety or welfare, and may only be granted where a literal enforcement of these regulations would result in an undue hardship, due to conditions peculiar to the property and not the result of actions of the applicant_,_ except as expressly set forth in section 4-42. Waivers may not be requested or authorized for expansion of a nonconforming structure or use, or where otherwise prohibited.

ARTICLE VIII. - BOARDS

Section 1-41. -The functions, powers and duties of the planning board.

A. The functions, powers and duties of the planning board shall include the following:

8. In accordance with the Comprehensive Plan policies regarding J:leigAt--a-R€1 density variances, the planning board shall hear any variance request for J:ieigJ:it aR€1 density, as long as these policies exist, and hear, review and decide upon any such variance request, as directed by the city commission. A simple majority vote of the planning board is required for approval of these petitions. Please also reference chapter IV, article IV, sections 4 40 and 4-41 of these regulations.

CHAPTER Ill - DESIGN STANDARDS

ARTICLE Ill. --- DEVELOPMENT AND CONSTRUCTION

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Section 3-37. - 45 foot building height limit.

The maximum allowable absolute building height for all new construction is limited to forty-five (45) feet above crown of the abutting road, unless exempted as set forth below:

A. No owners of structures destroyed or substantially damaged by explosion, fire, flood, wind, erosion, or other disaster shall be denied the right either to rebuild or to raze and rebuild to the same height in the same location.

B. Where required to meet federal, state, or local law to provide a wash through or similar grade level passage for storm surges, existing buildings lost to a casualty event may be rebuilt to the existing height as previously provided plus up to the height of the wash through, if necessary to maintain the same density with the same habitable area or gross square footage.

C. Where a parcel or a portion thereof has been assigned a FEMA Base Flood Elevation, or another minimum elevation for construction of habitable space has been applied to a parcel pursuant to federal, state, or local law, the 45 foot building height limit shall be measured from the height of the Base Flood Elevation or other minimum elevation, rather than the crown of abutting road.

D. On all parcels, up to 10 feet of unoccupied building elements and attachments on the top of buildings shall not count toward the 45 foot building height limit.

E. Residential and non-residential structures may be razed and rebuilt to their existing height as previously provided to the same extent as if they were lost to a casualty event.

F. The City Commission may grant a variance to individual parcels to allow new structures at a height greater than forty-five (45) feet as set forth in Section 4-40.

CHAPTER IV - APPLICATION AND REVIEW PROCESSES

ARTICLE IV. -VARIANCE.§if WAIVERS AND APPEALS

WRere-because a pr-epeft.y-fs-of excepOORal-Harmwness, shallawness, shape-ei:-U-J:las tepagra13hical ar ether extraoroinary site conffitiaAS-Which exist, and--the--stfict--a13plisatian-ef tJ:lece LDC regulatians--weuld result iA--a-f:3esHliar, exceptiaRal-eF-HAdue hardship,-as--a1313asea--te a-mere-incenvenience upon the-fffGf'}efty-awnef;------+Ae-administrator~ari2e a ten (10) percent wai-vef,---GF-tAe---baar4-ef-adj1;1Stment-may-a1:1tRa~ce-bey-end that ten (10) 13ercent threshald, as further defined by thi&-articie, if sucil-vaFiance--Gr-waiver-san---ae--made wUJ:laHt-destroying-the intent sf-these LDC regulations. Any variance-er waiver thus autRa~ shall be--GGA8--4A-WfffiAg as to the reasoning-behiAG-i:JFaRHA~Gh-vaFiaRce--af-waivm---#!ese LDC regulations.

Section 4-39. - Application for a variance from the board of adjustment.

The board of adjustment may grant a variance from the applicability or specific terms of these LDC regulations when such variance will not be contrary to the public interest and where, owing to special conditions, a literal enforcement of these LDC regulations would result in an undue hardship upon the property owner. Applications for variances from the board of

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adjustment m1:1sl-B~f)f)liea-feHA---aGWFGaAGe-WHR-SeGt~0n 4 40, anEl must be advertised in accordance with chapter I, section 1-42.B. of these regulations.

1/afianG~ A variance from the board of adjustment is a type of formal modification of the dimensional or numerical requirements of the LDC regulations where not contrary to the public interest and where, owing to conditions peculiar to the property, and not the result of the actions of the applicant, a literal enforcement of these regulations would result in unnecessary and undue hardship. As used in this sectiontAese reg1:1latiGA-S, a variance may be approved by the board of adjustment and it is authorized only for height, area and size of structure or size of yards and open spaces to the extent that such variance is consistent with the Comprehensive Plan and City Charter,---seGtien--&-4-G. Applications for a variance for a building height to exceed 45 feet shall be governed solely by section 4-40. Application~ for a variance from the board of adjustment shall be governed by the following:~

A. A variance from the terms of these regulations may be heard by the board of adjustment when an applicant completes and submits a variance application which indicates the section of the LDC regulations under which the variance is sought, and the grounds on which it is requested.

8. After receipt of a sufficient application, the request shall be scheduled for public hearing before the board of adjustment as expeditiously as possible and no sooner than forty-five (45) days from the date of the application submission.

C. The applicant shall provide sufficient information to staff to clearly show the board of adjustment that the seven (7) requirements for authorizing a variance listed below have been met:

1. The board of adjustment is empowered, under the section of the LDC regulations described in the application to grant the variance.

2. 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.

3. The literal interpretation and strict application of the LDC regulations would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of the LDC regulations.

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

5. Granting the variance will not give the applicant any special privilege that is denied by the LDC regulations to other lands, structures, or buildings in the same district.

6. The reasons set forth in the application justify granting the variance, and that the variance is the minimum variance that will make possible the reasonable use of the land, building, or structure.

7. The granting of the variance will be in harmony with the general purpose and intent of the LDC regulations and will not be injurious to the neighborhood, or otherwise detrimental to the public welfare.

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D. In granting any variance, the board of adjustment may prescribe appropriate conditions and safeguards in conformity with these regulations. 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 and punishable under these regulations. The board of adjustment shall prescribe a time limit, which shall not be greater than twenty-four (24) months, where the action for which the variance is required, shall be started and diligently pursued to completion without cessation of thirty (30) days or more.

E. Under no circumstances shall the board of adjustment grant a variance to allow a prohibited use in the zoning district where the said property is located.

Section 4-40. - Applications for a variance from the city commission Petitions for a height to exceed forty-five feet.

A The maximum allowable absolute building height for all new construction is limited to forty-five (45) feet above crown of the abutting road , unless exempted as set forth below:

1. No owners of structures destroyed or substantially damaged by explosion, fire, flood, wind, erosion, or other disaster shall be denied the right either to rebuild or to raze and rebuild to the same height in the same location. ~Q-131:1ilaiR{:}S ~g-eeefl--GeRsffilcted as of-the effective-Gate of OrdiRance 1328 w-AicR-is J{;fRe 6, 2002t-RaviR€}----a--Aeigl:lt-gre-atef-t!=Hm-fe~eet-ae0V&-§rade-may ee repaired or-f€e1:1ilt to tl:le-same--Reight-aRe-fleerJ--.Grea ratio,al:lt---wtt-R01:1t iRcre-asing any otheF-fleRGORfermity, as oulliRea-a-RG-iR-aGGOraaRce-wit-h----Git-y Gl:larteF-SeGtioo--M8--fel:lilaiRg-Reight--limitati0R-aGGOmmedati0A}-afla-Git-y-GRarter section 6.09 (neR-cas1:1alt-y-4ess-ree1:1il~

2. Where required to meet federal, state, or local law to provide a wash through or similar grade level passage for storm surges, existing buildings lost to a casualty event may be rebuilt to the existing height as previously provided plus up to the height of the wash through, if necessary to maintain the same density with the same habitable area or gross square footage.

3. Where a parcel or a portion thereof has been assigned a FEMA Base Flood Elevation, or another minimum elevation for construction of habitable space has been applied to a parcel pursuant to federal, state, or local law, the 45 foot building height limit shall be measured from the height of the Base Flood Elevation or other minimum elevation, rather than the crown of abutting road.

4. On all parcels, up to 10 feet of unoccupied building elements and attachments on the top of buildings shall not count toward the 45 foot building height limit.

5. Residential and non-residential structures may be razed and rebuilt to their existing height as previously provided to the same extent as if they were lost to a casualty event.

The City Commission may grant a variance to individual parcels Spesial coRSideratieR may be-§iVOR to allow new structures at a height greater than forty­five (45) feet, but in no event greater than seventy (70) feet (measured in accordance with Section 4-40(A)(7)), WR€ff.- upon petition and proof that the variance will not be contrary to the public interest when, owing to special conditions, a literal enforcement of this section would result in unnecessary

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hardship. To grant such a variance, the City Commission must make findings of fact that the petitioner has met the legal standards for variance as set forth in this section, and the variance must be approved by a concurring vote of four (4) members of the City Commission after due notice and public hearing. A request for variance will be considered after a written petition is submitted to the City Commission indicating the grounds on which the variance is sought. After the petitioner has submitted a sufficient petition, the request must be scheduled for public hearing before the City Commission as expeditiously as possible, and not earlier than thirty (30) days from the day of submission of a sufficient petition. Notice and hearing requirements for such variance shall be in accordance with the provisions for variance set forth in this section .

.-..a-. - -/\n-appHGaRl/prnpefty----ewAeF-----petitiaR6---fuF-----pHBliG-ReaFiA9&-before the f)laAAiA~aard, the-beard af --adjustmeAl-aAG-Gity-GammissieA,---+Re apf)tisant must demeAStfate-taAG4:!Se-GGmf}atieility-aAd-ron s isteACY-WitA ~niA9-S-ffiAGaFGS,Gejectives ano-puelic-iAfrastA:lctuFei-

tte. Pi,<je~ttttitioAs may ee-GGASidered-Gmy--wAen the applicatkm-iAG!udes-€1eASity~~ restfiGtions, restrictee--lasatieA-Gf-t.Ae--f)Fimary-taAd-1:!ses,-increased seteacks,--aAe-suestaAtially-4ncreased--bHffer&,-

.....c.--AJ:)pFevnl ey the----board af-adjHstmeAt,-f)lanAin@-130ard-and a favor-aele supermajarity-vete-ef-four (4) commissien----memeers is reqHired--te---allaw structures at a hoi§ht §Feater thaR-fo~eet-;--ana,

Hd-. - ----T_..,he--af)plisaAt--mHSl--petitian-fo~amf')reReAsive-PlaA-t~mendmeAt-to specmsally--identify the--losatiaA-ff)rnpert-y}----i~e--city-where those structHres-will--ee-soAstructeG:-SucR-ameAdment must specif'.y-tRe-hei§ht aHttlorized ey the-&J3ee+al--apprnvah--

7. The 70 feet referenced in Section 4-40(A)(6) shall be measured from the crown of the abutting road and measured to the top of the highest building element or attachment, except as set forth in this paragraph and as adjusted by administrative waiver. Any such administrative waiver shall be limited to unoccupied building elements and attachments only. Where a parcel or a portion thereof has been assigned a FEMA Base Flood Elevation, or another minimum elevation for construction of habitable space has been applied to a parcel pursuant to federal, state, or local law, the 70 feet referenced in Section 4-40(A)(6) shall be measured from the height of the Base Flood Elevation or other minimum elevation, rather than the crown of abutting road.

B. Legal standards for variance for a building height to exceed 45 feet

1. In granting a variance governed by this section, the City Commission shall make findings of fact based upon competent substantial evidence that the application for variance satisfies each of the following legal standards, which shall exclusively govern and be required for approval of a height variance by the City Commission:

a. Special conditions and circumstances (regardless of whether such special conditions and circumstances result from the actions of the applicant) exist with respect to the land, structure or building involved, including but not limited to unusual or extraordinary site conditions or location, which

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are not applicable to a majority of other lands. structures, or buildings within the City. Such special conditions and circumstances may include, but not be limited to:

i. Advanced age and deteriorating conditions of existing buildings and structures on the land.

ii. Substandard stormwater management systems associated with the land and existing buildings and structures on the land.

iii. Substandard life safety systems associated with existing buildings and structures on the land.

iv. Substandard energy conservation systems associated with existing buildings and structures on the land.

V. Elevated incidence of crime associated with existing buildings and structures on the land.

vi. Elevated fire or emergency medical service calls associated with existing buildings and structures on the land.

b. As a result of such special conditions and circumstances, the literal interpretation and strict application of the 45 foot building height limit would result in an unnecessary hardship. Such unnecessary hardship may include but not be limited to:

i. Depriving the applicant of rights commonly enjoyed by other properties within proximity to the proposed site, including but not limited to other properties with buildings exceeding 45 feet in height (regardless of when such buildings were authorized).

ii. Impeding or disincentivizing the redevelopment of a parcel. where the redevelopment of such parcel would foreseeably ameliorate any blighted condition associated with the land and existing buildings and structures on the land, including but not limited to those conditions enumerated in Section 4-40(8)( 1 )( a)(i) through (vi). and conditions similar thereto.

iii. Impeding or disincentivizing the development or redevelopment of a parcel so as to result in a substantial economic loss to both the property owner and the City.

C. The granting of the variance (while not necessarily the minimum variance necessary to make reasonable use of the land. building, or structure) is conditioned upon the restriction that residential areas (RS-1 and RM-1) shall be buffered by tiered heights from higher structures. with intervening rights of way or canals not considered buffers.

d. The granting of the variance will be in harmony with the general purpose and intent of the LDC and will not be injurious to the neighborhood. or otherwise detrimental to the public welfare. but rather enhances the public. economic, or social welfare of the community.

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C. Notice required for a variance to exceed 45 feet.

1. Public notification in the following prescribed manner is required.

a. U.S. Mail notification. Notice of the public meeting/hearing shall be mailed to property owners within three hundred (300) feet of the property for which the variance is requested at least ten (10) days prior to the date of the hearing. For this purpose, the owner of the property shall be deemed to be the person who is so shown on the most current tax rolls on file with the Brevard County property appraiser.

b. Newspaper advertising. Notice of the public meeting/hearing shall be advertised by publication of a notice of hearing in a newspaper of general circulation, as defined by F.S. ch. 50, at least ten (10) days prior to the date of the hearing.

C. Notice posted on subject property. Courtesy notice signs shall be provided by the city and posted by the applicant on the property. These signs must be visible from all streets, adjacent properties and waterways, and posted prior to the public meeting/hearing. Removal of the sign by natural weather events or vandalism is not sufficient cause to require that the case be continued or not heard. The sign shall be posted at least fifteen (15) days prior to the date of the hearing and the applicant shall submit a signed affidavit as to the proper placement of such signage, by the required posting time, before the case is heard.

2. Fees for required public notices to be paid by the applicant are as adopted from time to time by resolution or ordinance by the City Commission.

3. Failure of notice by U.S. mail or newspaper advertisement may not be cause to continue an application process unless such failed notice is determined by the City Commission to be in any way intentional and in "bad faith", as determined on a case-by-case basis by the City Commission, should these notices ever fail to be sent or advertised.

-B-. --R-e~sidem-ial-areas shal+-be-b1:1ffered by tiereG-Aeigl=lts--ffeFA-AiW'!ef-Strustl:lre&.-l-RterveAiAg fi9l=lt-s-et-w~F-BaAai-s--BaAAet--be--GeABiElere~Hffer-s:--

Section 4-42. -Administratively granted waivers.

A. Waivers from LDC regulations. Waivers of ten (10) percent or less to adopted LDC regulations, or to any degree of technical code requirements related to engineering materials, may be granted administratively by the administrator or by the city engineer with concurrence from the administrator, subject to procedures set forth herein. Waivers cannot be given administratively to height and density restrictions established by referendum, and they do not require notice.

Waiver: A grant of permission that authorizes an applicant to deviate from specific standards or provisions of these regulations. A waiver may be granted by the administrator, city manager, planning board, board of adjustment or the city commission, where and as specifically

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permitted throughout these LDC regulations. Any waiver will not be contrary to the public health, safety or welfare, and may only be granted where a literal enforcement of these regulations would result in an undue hardship, due to conditions peculiar to the property and not the result of actions of the applicant, except as expressly set forth in this section. Waivers may not be requested or authorized for expansion of a nonconforming structure or use, or where otherwise prohibited~

B. Purpose and scope. Administrative waivers of ten (10) percent or less may be granted when such waiver will not create a life-safety issue, be contrary to the public interest, and where, owing to special conditions, a literal application and/or enforcement of the LDC regulations or technical code requirements would result in an undue hardship upon the property owner. Administrative waivers shall not be granted if it has the effect of nullifying the intent and purpose of these regulations, or the technical codes, and in no case shall a waiver be granted to permit the construction of structures, a part of any structure, or an attachment to any structure at a height greater than forty-five (45) feet above crown of the abutting road: provided however, that this restriction shall not prohibit the adjustment of the measurement of the 70 feet referenced in Section 4-40(A)(6) by administrative waiver. Further, in no case shall a waiver be granted to permit the construction of dwelling units greater than ten ( 10) dwelling units per acre for permanent occupancy dwellings or twenty-eight (28) units per acre for transient lodging establishments.

C. Timeliness of filing; jurisdiction. An administrative decision regarding the waiver request must be completed within five (5) working days following the applicant's request.

1. Staff must make written response to the applicant on whether the request was approved, approved with conditions, or denied and provide notice of appeal and further administrative process as set forth below; or,

2. Inform applicant that a planning board or board of adjustment review and approval is required, depending upon the size and type of request submitted, since the request exceeds the ten (10) percent threshold.

D. Application and findings of fact. Except as hereinafter provided, Asdministrative waivers must not be granted unless and until a sufficient application is submitted, and staff can find that the criteria below have been met for the requested waiver, which demonstrates:

1. That because of exceptional or extraordinary conditions or circumstances which exist, the strict application of these LDC regulations or technical code requirements would result in a peculiar, exceptional or undue hardship, as opposed to a mere inconvenience upon the property owner, an administrative waiver may be authorized, if it can be granted without destroying the intent of these LDC regulations or the technical codes in question.

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

3. That the waiver would be the minimum waiver required in order to make possible the reasonable use of the land, buildings, and other improvements.

4. That granting the waiver would be consistent with the Comprehensive Plan and in harmony with the general purpose and intent of these regulations, will not create a life-safety issue, be injurious to the surrounding neighborhood, or

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otherwise be detrimental to the public welfare.

Notwithstanding any other provision in this section, applications for administrative waiver for the adjustment of the measurement of the 70 feet referenced in Section 4-40(A)(6) shall be governed exclusively by the criteria set forth in Section 4-40(8)(1 )(a) through (d), provided however, that such administrative waivers shall nevertheless be subject to the ten (10) percent threshold set forth in this section.

E. Conditions. Staff may prescribe appropriate conditions and safeguards to ensure that the purposes of the appropriate codes and regulations are adhered to, and the waiver is the minimum necessary to allow reasonable use of the land and improvements.

F. Approval/denial. If the administrative waiver is denied, the decision is considered a denial without prejudice. With any approval, the applicant shall start and diligently pursue to completion the work required for the waiver within one (1) year of approval.

G. Appeals. Applicants may choose to take a denied request for an administrative waiver to the board of adjustment to be heard as a regular variance, or they may make an appeal as provided for in chapter I, article VIII and article IX, as appropriate.

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line of Lot 7, Block A; Thence N01 °18'34"E, 220.02 feet along the West line of said Block A to the POINT OF BEGINNING, Containing 0.55 acres, more or less.

-•)• Policy 11.2.2 To protect existing residential areas from encroachment by land uses which are incompatible due to development density, and ensure safe hurricane evacuation times, the City shall regulate maximum allowable residential and transient lodging density in accordance with the City Charter Section 6.01 {Density) and allow exemptions for existing residential and transient lodging developments. The following criteria shall be incorporated into the Land Development Code.

(a) The maximum allowable density for all new construction is limited to ten {10) residential dwelling units per gross acre or twenty- eight {28) transient lodging rooms per gross acre, unless exempted as set forth below:

1. Existing properties constructed prior to the effective date of Ordinance No. 1328, which is 6-6-02, having a density greater than ten {10) residential dwelling units per gross acre or twenty­eight {28) transient lodging rooms per gross acre may be repaired or rebuilt to the same density, but without increasing) any other nonconformity.

z ... 2. Special consideration may be given to allow new development at a density greater than ten {10), but in no event greater than twelve (12), residential dwelling units per gross acre or twenty­eight {28), but in no event greater than thirty (30), transient lodging rooms per gross acre when:

• An applicant/property owner petitions for public hearings before the Planning Board, the Board of Adjustment and City Commission. The applicant must demonstrate land use compatibility and consistency with zoning standards, objectives and public infrastructure;

• Petitions may be considered only when the application includes height restrictions, restricted location of the primary land uses, increased setbacks, and substantially increased buffers;

- --11111!)• • Approval by the Board of Adjustment, Planning Board and a favorable supermajority vote of four Commission members is required to allow development at a density greater than ten {10) residential dwelling units per gross acre or twenty- eight (28) transient lodging rooms per gross acre; and,

Cocoa Beach Comprehensive Plan 2025 Page 1-19 Future Land Use Element (FLUE) - Adopted April 5, 2018

Objective 11.3

Policy 11.3.1

Policy 11.3.2

Policy 11.3.3

Policy 11.3.4

• The applicant must petition for comprehensive plan t ext amendment to specifically identify the location [property] in the City where these structures will be constructed. Such amendment must specify the density authorized by the

special approval.

The City will encourage redevelopment and economic revitalization of the Downtown Area, including the established low-density neighborhoods, through the implementation of appropriate planning strategies and through the renewal ofsubstandard structures.

The City shall, on a continuing basis, use a combination of citizen advisory groups and/or professional staff to evaluate and identify areas that are currently in need of redevelopment and renewal, or have the potential to need future redevelopment or renewal. The City will follow a redevelopment and renewal process that identifies specific areas and includes planning methods and evaluation criteria that ensure financially feasible redevelopment of sites that are compatible with

adjacent properties.

The Development Services Department will continually review potential amendments to the City's LDC including, but not limited to:

(a) Coordinate with FOOT on the SR AlA Corridor Study and future improvements; and _, ~

(b) Develop and implement standards for a "Walkable Community."

Consistent with the Housing Element, the City shall conduct an annual windshield survey of the structural conditions of housing units in areas subject to deterioration. Any housing units that are found to be "substandard/deteriorated" or "substandard/dilapidated" shal l be cited and the owner shall be required to rehabilitate or demolish the

structure within one year.

Consistent with the Housing Element, if greater than 25 percent of the residential structures in a neighborhood (but not less than five) are determined to be "substandard/deteriorated" or "substandard/dilapidated", that neighborhood shall be considered to · be in danger of deterioration, and the City will develop a plan for the stabilization of the neighborhood withln two years of such' ..determination. '

Cocoa Beach Comprehensive Plan 2025 Page 1-20

Future Land Use Element (FLUE) - Adopted Apri l 5, 2018

Cocoa Beach, FL Land Development Code Page 1 of 1

'-•'f• Section 4-41. - Petitions for a density to exceed ten residential or twenty-eight transient units.

A. The maximum allowable density for all new construction is limited to ten (10) residential

dwelling units per gross acre or twenty-eight (28) transient lodging rooms per gross acre,

unless exempted as set for below:

1. Existing properties (having been constructed as of the effective date of Ordinance No.

1328) having a density greater than ten (10) residential dwelling units per gross acre or

twenty-eight (28) transient lodging rooms per gross acre may be repaired or rebuilt to

the same density, but without increasing any other nonconformity.

t • 2. Special consideration may be given to allow new development at density greater than

ten (10), but in no event greater than twelve (12), residential dwelling units per gross

acre or twenty-eight (28), but in no event greater than thirty (30), transient lodging

rooms per gross acre when:

a. An applicant/property owner petitions for public hearings before the planning board,

the board of adjustment and city commission. The applicant must demonstrate land

use compatibility and consistency with zoning standards, objectives and public

infrastructure;

b. Petitions may be considered only when the application includes height restrictions,

restricted location of the primary land uses, increased setbacks, and substantially

increased buffers;

--•)• c. Approval by the board of adjustment, planning board and a favorable supermajority

vote of four (4) commission members is required to allow development at a density

greater than ten (10) residential dwelling units per gross acre or twenty-eight (28)

transient lodging rooms per gross acre; and,

-•----)• d. The applicant must petition for a Comprehensive Plan text amendment to

specifically identify the location [property] in the city where these structures will be

constructed. Such amendment must specify the height authorized by the special

approval.

(Ord. No. 1649, § 2(Exh. A), 10-1-2020)

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