§ 62-1151. Amendments to official zoning map—Amendments initiated by property owner.

(a)

Application; fee. Any owner of real property may file an application for an amendment to the official zoning map to designate the particular real property a different zoning classification or conditional use from the use designated on the official zoning map under the provisions of this section. The application may be accompanied by a fee established from time to time by the board of county commissioners, and shall contain the following information and documents:

(1)

The name of the owner of the particular real property.

(2)

If the applicant is other than all the owners of the particular property, written consent signed by all owners of the particular real property.

(3)

The legal description of the particular real property, accompanied by a certified survey or that portion of the map maintained by the county property appraiser reflecting the boundaries of the particular real property.

(4)

The current zoning classification and special use classification, with any specified conditions or conditional use designation, as recorded on the official zoning maps.

(5)

The requested zoning classification or conditional use classification that constitutes an amendment to the official zoning maps.

(6)

A recorded warranty deed.

(7)

All commercial and industrial rezoning requests shall include a certified wetlands delineation and habitat description to be provided by the applicant or their designee. If the county natural resources management office, utilizing the best available data including, but not limited to, the National Wetland Inventory Maps, aerial photographs and the Brevard County Soil Survey, determines that no wetlands exist on-site, a waiver of such delineation requirements may be granted from that office. If a wetland delineation is required, it shall be performed by an environmental professional while utilizing the Florida Land Use, Cover and Forms Classification System (FLUCCS) to describe the wetland habitat on site.

Environmental professional An individual with at least two years of experience in describing on-site environmental conditions and habitat types. Said individual shall also provide proof of completion of a USCOE wetlands delineation or equivilent course. A thorough knowledge of the following publications and issue areas including, but not limited to, the Florida Wetland Delineation Manual, Brevard County Soil Survey, plant identification, surface water classification, floodplain delineation, and listed species identification is required.

(b)

Notice of hearing before planning and zoning board. Upon receipt of the executed application, the zoning official shall forthwith schedule a hearing on the application before the planning and zoning board. Notice of the time and place of the public hearing shall be given to the applicant at least 15 days prior to the date of the public hearing. Notice of the time and place of the public hearing on the application shall be published once, at least 15 days prior to the public hearing, in a newspaper of general circulation within the county. The notice shall contain the name of the applicant, the legal description of the affected property, the existing zoning classification, special classification or conditional use designation, the requested amendment to the official zoning maps, and the time and place of the public hearing on the consideration of the application by the board of county commissioners. In addition, a notice containing such information shall be posted in the county courthouse in Titusville, Florida, by county officials, and a notice containing such information, excluding the legal description but including total acreage, shall be posted by the applicant on the affected property at least 15 days prior to the public hearing. If the property abuts a public road right-of-way, the notice shall be posted within ten feet of the right-of-way and in such a manner as to be visible from that road right-of-way. An affidavit signed by the owner or applicant evidencing posting of the affected real property must be received by the zoning office prior to the time that such matter is heard by the planning and zoning board. If the property does not abut a road right-of-way or a traveled access, thereby causing the property to be normally inaccessible, posting of the property may be waived by the zoning official upon receipt of an affidavit from the property owner attesting to the property's inaccessibility. Failure to provide either of such affidavits prior to the hearing shall result in tabling the application for one meeting, at cost to the applicant, or denial of the request. It shall be unlawful for any person to remove the notice containing such information from the affected property or from the county courthouse in Titusville, Florida. Any person found guilty of violating this section shall be deemed guilty of an offense, and shall be punished by a fine not to exceed $500.00 or by imprisonment in the county jail for a period not to exceed 60 days, or by both such fine and imprisonment.

(c)

Conduct of hearing before planning and zoning board; recommendation of approval or denial. At the designated public hearing, the planning and zoning board shall hear the applicant on the proposed amendment to the official zoning maps, and shall hear members of the general public. The planning and zoning board shall have the power to establish such rules of procedure for the orderly conduct of the public hearing as the circumstances of the consideration of each application warrant. During the public hearing, the applicant may be present in person and by counsel, and the applicant has the right to present evidence in support of his position and to cross examine adverse witnesses whose testimony is offered at the hearing. The planning and zoning board shall recommend to the board of county commissioners the denial or approval of each application for amendment to the official zoning maps based upon a consideration of the following factors:

(1)

The character of the land use of the property surrounding the property being considered.

(2)

The change in conditions of the land use of the property being considered and the surrounding property since the establishment of the current applicable zoning classification, special use or conditional use.

(3)

The impact of the proposed zoning classification or conditional use on available and projected traffic patterns, water and sewer systems, other public facilities and utilities and the established character of the surrounding property.

(4)

The compatibility of the proposed zoning classification or conditional use with existing land use plans for the affected area.

(5)

The appropriateness of the proposed zoning classification or conditional use based upon a consideration of the applicable provisions and conditions contained in this article and other applicable laws, ordinances and regulations relating to zoning and land use regulations and based upon a consideration of the public health, safety and welfare.

The minutes of the planning and zoning board shall specify the reasons for the recommendation of approval or denial of each application.

(d)

Public hearing before board of county commissioners. At the public hearing before the planning and zoning board, the time and place of the public hearing of each application by the board of county commissioners shall be announced. The board of county commissioners, at the public hearing, shall deny or grant each application for amendment to the official zoning maps based upon a consideration of the recommendation of the planning and zoning board and those factors specified in subsection (c) of this section. The board of county commissioners shall have the right at the public hearing to deny or approve each application for amendment to the official zoning maps, regardless of whether the planning and zoning board has made a specific recommendation on such application. An additional board of county commission public hearing will be required for each industrial use seeking to locate within a Performance Overlay District (POD) unless the applicant seeking a POD for a shopping center has an industrial use/client already identified, then the approval of the POD and the use could occur concurrently at the same public hearing.

(e)

Limitations on tabling and subsequent applications. No application for an amendment to the official zoning maps for a particular parcel of property, or part thereof, shall be tabled more than once by the planning and zoning board as a result of the action or request of the applicant. Further attempts by the applicant to table such application shall be deemed a withdrawal of the application, subject to the provisions and limitations of this subsection. No application for an amendment to the official zoning maps for a particular parcel of property, or part thereof, shall be received by the zoning director until the expiration of six calendar months from the date of denial of an application for an amendment to the official zoning maps for such property or part thereof, provided, however, that the board of county commissioners may specifically waive the waiting period based upon a consideration of the following factors:

(1)

The new application constitutes a proposed zoning classification or conditional use of different character from that proposed in the denied application.

(2)

Failure to waive the six-month waiting period constitutes a hardship to the applicant resulting from mistake, inadvertence or newly discovered matters or considerations.

(f)

Stay of enforcement proceedings. Any person accused of the violation of the provisions of this chapter where a zoning change or the granting of a conditional use permit would nullify the violation may apply to the planning and zoning board requesting such zoning change or conditional use permit. Such application shall stay all enforcement proceedings until such application is heard by the planning and zoning board and the board of county commissioners and a decision is rendered, unless the board of county commissioners specifically authorizes legal action to enforce this chapter. This stay of proceedings shall in no event be construed to allow completion of construction or continuation of any activity which has been cited for a violation of this Code. All such cited activities shall be specifically prohibited from continuing until further action by the board of county commissioners is taken which authorizes such activities, or until administrative or judicial proceedings authorize the continuance of such activities. If the cited prohibited activity is not ceased by the violator during the pendency of these proceedings, any stay of enforcement proceedings shall be lifted.

(g)

At any time during the rezoning review process, including at the public hearing, the applicant may agree to a condition which restricts the use of the property under consideration to a specific use or range of uses permitted within the applicable zoning classification being applied for. In the event the board of county commissioners approves the imposition of such a condition, the rezoning resolution and the official county zoning map shall set forth the approved zoning classification and a notation indicating the specific uses for which approval has been granted.

(h)

If indicated in the advertised notice for public hearing and, if based upon substantial and competent evidence, it is determined that the requested zoning classification should not be approved, the planning and zoning board may recommend and the board of county commissioners may approve a classification which is more intense than the existing classification, but less intense than the classification which was requested. The board may impose such a classification without the agreement of the applicant; however, if the applicant is not the owner, and the applicant was not given the authority to accept a lesser zoning, then the item is to be tabled to the following meeting for the owner to determine whether they are willing to withdraw the request with no additional expense to the owner.

(Code 1979, § 14-20.61; Ord. No. 96-48, § 1, 10-24-96; Ord. No. 97-49, § 4, 12-9-97; Ord. No. 98-12, § 4, 2-26-98; Ord. No. 2000-50, § 1, 10-31-00; Ord. No. 2001-65, § 1, 10-16-01; Ord. No. 06-39, § 1, 7-11-06)

State law reference

Zoning amendments, F.S. § 125.66(5), (6); penalty for ordinance violations, F.S. § 125.69.