§ 62-1901. Generally.

(a)

Permitted uses. In addition to the permitted uses specified in each zoning classification, there are also additional uses specified in each zoning classification which may be considered subject to the specific restrictions and conditions specified in this subdivision. These conditional uses shall be reviewed pursuant to the general standards specified in subsection (c) of this section.

Conditional use permits issued to properties which subsequently are divided into two or more lots or parcels shall be retained only on those parcels that still meet the conditions of the conditional use permit which are in effect at the time the land is subdivided.

(b)

Approval procedure. An application for a specific conditional use within the applicable zoning classification shall be submitted and considered in the same manner and according to the same procedure as an amendment to the official zoning map as specified in section 62-1151. The approval of a conditional use shall authorize an additional use for the affected parcel of real property in addition to those permitted in the applicable zoning classification. The initial burden is on the applicant to demonstrate that all applicable standards and criteria are met. Applications which do not satisfy this burden cannot be approved. If the applicant meets its initial burden, then the board has the burden to show, by substantial and competent evidence, that the applicant has failed to meet such standards and the request is adverse to the public interest. As part of the approval of the conditional use permit, the board may prescribe appropriate and reasonable conditions and safeguards to reduce the impact of the proposed use on adjacent and nearby properties or the neighborhood. A nearby property, for the purpose of this section, is defined as any property which, because of the character of the proposed use, lies within the area which may be substantially and adversely impacted by such use.

Any applicant who seeks a conditional use permit shall submit with the application a site plan as described below. If a CUP not listed in Exhibit "A" below is requested on a site which is either undeveloped or which is to be altered by 50 percent or greater of the original floor area or seating capacity of an existing structure, a reproducible site plan signed by a registered engineer, land surveyor or architect must be presented. The site plan shall depict the structure, parking, ingress/egress, landscaping, refuse, screening or buffering, height and stormwater retention areas. For an existing structure not to be altered more than 50 percent of the original floor area or seating capacity, or for a CUP specifically listed in Exhibit "A" below where practical, a scaled dimensional sketch plan may be presented as an alternative which delineates parking, landscaping, external structural changes, and ingress/egress. Either site plan referenced herein shall be binding on the use of the property if the conditional use permit is approved. Minor modifications to the approved site plan which, in the opinion of the county manager or designee, do not deviate from the intent of the original approved may be approved administratively at the time of the development permit.

Exhibit A. Conditional Use Permits Requiring
Scaled Dimensional Sketch Plan Only

Code Section	Condition Use Permit
Sec. 62-1904.	Agricultural pursuits.
Sec. 62-1913.	Boarding of horses and horses for hire.
Sec. 62-1917.5.	Change of nonconforming agricultural use.
Sec. 62-1925.	Development rights receipt and transfer.
Sec. 62-1927.	Farm animals and fowl.
Sec. 62-1932.	Guesthouses or servants' quarters.
Sec. 62-1935.	Horses and barns.
Sec. 62-1945.	Recreational facilities.
Sec. 62-1945.5.	Roadside stands.
Sec. 62-1946.	Security mobile homes.
Sec. 62-1947.	Single-family residential second kitchen facility.
Sec. 62-1948.	Skateboard ramps.
Sec. 62-1951.	Temporary medical hardship mobile homes.
Sec. 62-1956.	Veterinary hospitals or clinics; pet kennels.
Sec. 62-1958.	Captive wildlife.
Sec. 62-1959.	Zero lot line subdivisions.

 

Other information which may be requested by the county manager or designee, planning and zoning board, or board of county commissioners relative to a specific conditional use permit application must be provided at least two weeks prior to the time of the applicable public hearing.

In stating grounds in support of an application for a conditional use permit, it is necessary to show how the request fulfills both the general and specific standards for review. The applicant must show the effect the granting of the conditional use permit will have on adjacent and nearby properties, including, but not limited to traffic and pedestrian flow and safety, curb-cuts, off-street loading and parking, off-street pickup of passengers, odor, glare and noise, particulates, smoke, fumes and other emissions, refuse and service areas, drainage, screening and buffering for protection of adjacent and nearby properties, and open space and economic impact on nearby properties. The applicant, at his discretion, may choose to present expert testimony where necessary to show the effect of granting the conditional use permit.

(c)

General standards of review.

(1)

The planning and zoning board and the board of county commissioners shall base the denial or approval of each application for a conditional use based upon a consideration of the factors specified in section 62-1151(c) plus a determination that the following general standards are satisfied. The board shall make the determination whether an application meets the intent of this section.

a.

The proposed conditional use will not result in a substantial and adverse impact on adjacent and nearby properties due to: (1) the number of persons anticipated to be using, residing or working under the conditional use; (2) noise, odor, particulates, smoke, fumes and other emissions, or other nuisance activities generated by the conditional use; or (3) the increase of traffic within the vicinity caused by the proposed conditional use.

b.

The proposed use will be compatible with the character of adjacent and nearby properties with regard to use, function, operation, hours of operation, type and amount of traffic generated, building size and setback, and parking availability.

c.

The proposed use will not cause a substantial diminution in value of abutting residential property. A substantial diminution shall be irrebutably presumed to have occurred if abutting property suffers a 15 percent reduction in value as a result of the proposed conditional use. A reduction of ten percent of the value of abutting property shall create a rebutable presumption that a substantial diminution has occurred. The board of county commissioners carries the burden to show, as evidenced by either testimony from or an appraisal conducted by an MAI certified appraiser, that a substantial diminution in value would occur. The applicant may rebut the findings with his own expert witnesses.

(2)

The following specific standards shall be considered, when applicable, in making a determination that the general standards specified in subsection (1) of this section are satisfied:

a.

Ingress and egress to the property and proposed structures thereon, with particular reference to automotive and pedestrian safety and convenience, traffic flow and control, and access in case of fire and catastrophe, shall be: (1) adequate to serve the proposed use without burdening adjacent and nearby uses, and (2) built to applicable county standards, if any. Burdening adjacent and nearby uses means increasing existing traffic on the closest collector or arterial road by more than 20 percent, or ten percent if the new traffic is primarily comprised of heavy vehicles, except where the affected road is at level of service A or B. New traffic generated by the proposed use shall not cause the adopted level of service for transportation on applicable roadways, as determined by applicable county standards, to be exceeded. Where the design of a public road to be used by the proposed use is physically inadequate to handle the numbers, types or weights of vehicles expected to be generated by the proposed use without damage to the road, the conditional use permit cannot be approved without a commitment to improve the road to a standard adequate to handle the proposed traffic, or to maintain the road through a maintenance bond or other means as required by the board of county commissioners.

b.

The noise, glare, odor, particulates, smoke, fumes or other emissions from the conditional use shall not substantially interfere with the use or enjoyment of the adjacent and nearby property.

c.

Noise levels for a conditional use are governed by section 62-2271.

d.

The proposed conditional use shall not cause the adopted level of service for solid waste disposal applicable to the property or area covered by such level of service, to be exceeded.

e.

The proposed conditional use shall not cause the adopted level of service for potable water or wastewater applicable to the property or the area covered by such level of service, to be exceeded by the proposed use.

f.

The proposed conditional use must have existing or proposed screening or buffering, with reference to type, dimensions and character to eliminate or reduce substantial, adverse nuisance, sight, or noise impacts on adjacent and nearby properties containing less intensive uses.

g.

Proposed signs and exterior lighting shall not cause unreasonable glare or hazard to, traffic safety, or interference with the use or enjoyment of adjacent and nearby properties.

h.

Hours of operation of the proposed use shall be consistent with the use and enjoyment of the properties in the surrounding residential community, if any. For commercial and industrial uses adjacent to or near residential uses, the hours of operation shall not adversely affect the use and enjoyment of the residential character of the area.

i.

The height of the proposed use shall be compatible with the character of the area, and the maximum height of any habitable structure shall be not more than 35 feet higher than the highest residence within 1,000 feet of the property line.

j.

Off-street parking and loading areas, where required, shall not be created or maintained in a manner which adversely impacts or impairs the use and enjoyment of adjacent and nearby properties. For existing structures, the applicant shall provide competent, substantial evidence to demonstrate that actual or anticipated parking shall not be greater than that which is approved as part of the site plan under applicable county standards.

(d)

Modification, revocation, penalty.

(1)

The board shall have the authority to modify or revoke a previously granted conditional use permit where there has been no development, construction, or implementation of the conditional use. Such modification or revocation may occur when the board finds the use of the conditional use permit:

a.

Would cause substantial and adverse impact to the general health, safety or welfare through the effect of emissions, particulates, noise, or other negative impact;

b.

Due to changed conditions created by the person or entity owning the property to which the CUP was issued, would not meet the original standards for such approval;

c.

Would not meet the specific review standards or conditions attached by the board as part of the approval; or

d.

Due to changed conditions in the surrounding neighborhood as it has developed, would now cause substantial and adverse impact to the general health, safety or welfare of adjacent or nearby residents that would not have been apparent at the time of approval.

(2)

The board shall have the authority to modify or revoke a previously granted conditional use permit where there has been development, construction, or implementation of the conditional use. Such modification or revocation may occur when the board finds the use of the conditional use permit has failed to comply with any of the conditions and restrictions imposed in the conditional use permit, has created an unforeseen negative impact such as emissions, particulates, noise, or other negative impact, or has otherwise caused substantial and adverse effects on the general health, safety or welfare of adjoining and nearby property owners and residents, and the owner has had adequate opportunity to correct the deficiency through code enforcement procedures or other avenues of due process. This provision shall apply retroactively.

(3)

All special use permits and conditional use permits as described below shall be subject to revocation. Such permits are as follows:

•

Special use permits issued to properties prior to the removal of such permits from the Brevard County Code on August 2, 1973;

•

Conditional use permits which have been removed from the Brevard County Code or from the applicable zoning classification; and

•

Conditional use permits approved prior to the effective date of Ordinance No. 99-43 which remain unused three years or more after the effective date of Ordinance No. 99-43.

Such uses constructed or under construction at the time of the Code amendment shall be considered nonconforming uses.

(4)

Modification or revocation proceedings shall be initiated and processed in the same manner as an administrative rezoning.

(5)

It shall be unlawful to use any land designated for a conditional use on the official zoning maps in violation of the restrictions and conditions placed on the conditional use of the land under the provisions of this division or the applicable resolution of approval. Any person found guilty of violating this subsection shall be deemed guilty of an offense and shall be punished by a fine not exceeding $500.00, or by imprisonment in the county jail for a period not to exceed 60 days, or by both such fine and imprisonment. The board also reserves the right to seek injunctive relief or any other appropriate legal remedy to enforce compliance with applicable land use regulations.

(e)

Rezoning, effect. Existing conditional use permits shall be presumed to be waived when a rezoning application is granted, unless the applicant requests renewal of the conditional use permit(s). In the event of a rezoning request wherein the subject property also has an approved conditional use permit, upon request, the board shall renew, modify, or revoke each existing conditional use permit. Unless reauthorized, conditional uses constructed or under construction at the time of the rezoning shall be considered nonconforming uses.

(f)

Expiration. Conditional use permits approved after the effective date of Ordinance No. 99-43 shall expire within three years from the date of approval if the approved use is not constructed or under substantial and continuous construction. One administrative extension of up to two years may be approved by staff prior to expiration if the applicant has submitted an application for a development order. Renewals of expired conditional use permits may be considered by the board in public hearing pursuant to subsection 62-1901(b) if the applicant can demonstrate compliance with all current standards or review criteria.

(Code 1979, § 14-20.16.2(A), (C)—(E); Ord. No. 99-43, § 1, 8-3-99; Ord. No. 2002-40, § 1, 8-13-02; Ord. No. 2005-25, § 6, 5-19-05; Ord. No. 06-004, § 1, 1-10-06; Ord. No. 2009-06, § 5(Exh. A), 2-5-09)

State law reference

Penalty for ordinance violations, F.S. § 125.69.