Zoning Variance Process
What is a Variance:
A variance is a waiver from the requirements of the Zoning Code and the Sign Code, where specific enforcement would result in unnecessary hardship. The variance requested should be the minimum variance that would make possible the reasonable use of the land, building or structure. Seeking a variance is asking for relief from a restrictions of the Brevard County Zoning or Sign Code found in Chapter 62, Articles 6 and 9.
What is a Hardship:
If some special circumstance makes it difficult for a project to meet the zoning code a hardship may be established. A hardship generally occurs when the physical characteristics of a property are such that it cannot be used for any purpose permitted by County codes. A hardship may be created by the surroundings, shape or topographical conditions particular to that specific property. However, the hardship cannot be self-imposed, or the result of the property owner’s own action. In order for the Board of Adjustment to grant a variance, six criteria must be met. These criteria are outlined in Section 62-253(a)(1-6).
What is a Setback:
A setback is a standard established by zoning classification or other regulation that states how far from a property line certain types of structures must be placed. Setbacks are established for a particular yard or use in a yard: for example, a side yard setback which establishes the location of the side of a house, a rear yard setback that locates where you would place a shed, or a setback that locates where you might put a pool.
1. Decision to Request a Variance:
For example, you want to put a 300 square-foot shed in your back yard and planned to put it 2 feet from your property line. When you come to the County to apply for your building permit you are informed that the required setback for your zoning district is 10 feet for a shed that size. You evaluate your options, for example: 1) you could move it somewhere else in your yard outside the 10 foot setback and would not need to wait for a variance hearing to complete the project; or, 2) due to some condition in the yard, for example large trees, the shed cannot be relocated so you would still need to seek a variance to put the shed within the 10 foot setback.
2. Application Submittal
Applicant submits a complete application for variance prior to application deadline. A complete application includes:
- The name of the owner of the particular real property shall be included.
- If the applicant is other than all the owners of the particular property, written consent signed by all owners of the particular real property shall be attached.
- The application shall contain the legal description of the particular real property, accompanied by a certified survey of that portion of the map maintained by the property appraiser reflecting the boundaries of the particular real property.
- The application shall contain the current zoning classification, special use classification, and any specified conditions or conditional use designation as recorded on the official zoning maps.
- The application shall contain the variance requested from the provisions of this chapter, plus the basis for the request.
- After receipt of a complete application, your variance request will be scheduled for the next available Board of Adjustment meeting. A request for a variance requires submittal of a current (within the last six months) certified survey.
- If an application is found to be incomplete or contrary to submittal requirements, staff will request revisions or additional information. Please note that an incomplete application may cause your request to be scheduled for the following hearing.
3. Public Notification:
- No less than ten (10) days before the Board of Adjustment meeting, Planning and Development staff will mail a letter of notification to all abutting property owners within 200 feet of the subject property.
- Planning & Development staff will also prepare a sign for posting on the subject property. The applicant must post their property at least fifteen (15) days in advance of the Board of Adjustment meeting.
- The applicant will post the sign in the required location on the property where it shall remain until final action has occurred on the request. Maintenance of the sign shall be the responsibility of the applicant. THE NOTICE OF PUBLIC HEARING IS MANDATORY; THE PROPERTY MUST BE POSTED. Failure to comply may result in a delay with additional costs for advertising.
- The applicant must return a notarized affidavit certifying the posting of the sign. This must be submitted to Planning & Development staff prior to the Board of Adjustment meeting.
- Planning & Development staff also prepares a legal advertisement for publication in the Florida Today Newspaper which is published at least ten (10) days in advance of the Board of Adjustment meeting
The Board of Adjustment Cannot Consider an Application Unless all Public Notifications Requirements have been Complete
4. Application Review:
Planning & Development staff prepares a written staff report for consideration by the Board of Adjustment. The report presents factual information concerning the applicant’s request based on existing circumstances, as well as pending Code Enforcement action. The meeting agenda is available online approximately one week before the Board of Adjustment meeting.
5. Board of Adjustment Meeting:
The Brevard County Board of Adjustment is a quasi-judicial body consisting of five (5) regular members and alternate members, all of which are appointed by the Board of County Commissioners. It is empowered to hear and decide variances.
- The Board of Adjustment meets once a month, usually on the third Wednesday of the month.
- An authorized representative or the applicant must appear at the public hearing in order to present the application. The representative should be familiar with the request and be able to make statements and commitments on behalf of the applicant.
- Following the presentation by the applicant, and public comment, the Board of Adjustment will discuss and vote to decide the outcome of the request for a variance. The Board may approve, deny or table a request. A tabling is generally requested for reasons such as additional information.
6. Variance Criteria:
A variance may be granted when it will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of Chapter 62, Articles 6 and 9, will result in unnecessary and undue hardship; provided, specifically, however, that personal medical reasons shall not be considered as grounds for establishing undue hardship sufficient to qualify an applicant for a variance. Economic reasons may be considered only in instances where a landowner cannot yield a reasonable use and/or reasonable return under the existing land development regulations. In order to authorize any variance from the terms of this chapter, the board of adjustment shall find all of the following factors to exist:
- That special conditions and circumstances exist which are not applicable to other lands, structures or buildings in the applicable zoning classification;
- That the special conditions and circumstances do not result from the actions of the applicant;
- That granting the variance requested will not confer on the applicant any special privilege that is denied by the provisions of this chapter to other lands, buildings or structures in the identical zoning classification;
- That literal interpretation of the provisions of this chapter would deprive the applicant of rights commonly enjoyed by other properties in the identical zoning classification under the provisions of this chapter and will constitute unnecessary and undue hardship on the applicant;
- That the variance granted is the minimum variance that will make possible the reasonable use of the land, building or structure; and
- That the granting of the variance will be in harmony with the general intent and purpose of this chapter and that such use variance will not be injurious to the area involved or otherwise detrimental to the public welfare.
In no case shall the Board of Adjustment grant a variance which will result in a change of land use that would not be permitted in the applicable zoning classification.
7. Appeal of BOA Decision:
Pursuant to Section 62-254, Brevard County Code, any person or persons, jointly or severally aggrieved by any decision of the Board of Adjustment may, within 30 days after the date the order is signed, apply to a court of competent jurisdiction for appropriate relief.