§ 62-4209. Variances.

Variances from the provisions of the sections specified herein may be granted by the board of county commissioners, after public hearing, pursuant to the following criteria and procedures:

(1)

A fully completed application for variance shall be submitted by the property owner of record or his authorized representative, to the county manager or designee, in accordance with article VI of this chapter. The application shall include, as a minimum, the following information:

a.

The name and address of the applicant.

b.

The street address of the property, if available.

c.

A statement describing the proposed work, activity or construction seaward of the coastal setback line.

d.

A list of names and addresses of owners of all properties located within 500 feet of the subject property.

A notice containing the information mentioned in items a, b, and c of this subsection 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 in such a manner as to be visible from the road right-of-way. An affidavit signed by the owner or the applicant evidencing posting of the affected real property shall be received by the board of county commissioners prior to the public hearing.

(2)

The applicant shall also supply one copy of a topographic survey of the subject property, prepared or verified for accuracy not more than six months prior to the date of application, and certified by a land surveyor registered in the state. The topographic survey shall include the following specific information:

a.

The location of the contour line corresponding to elevation 0 NGVD.

b.

The location of any existing vegetation line on the subject property.

c.

The location of the established state department of natural resources coastal construction control line, the county coastal construction control line, the mean high-water line and the coastal setback line for the full width of the subject property, including the location and number of the two nearest baseline monuments of the state department of natural resources.

d.

The location of any existing structures on the subject property, and the location of any proposed construction or activity.

(3)

The applicant shall also submit one copy of detailed final construction plans and specifications for all structures proposed to be constructed seaward of the coastal setback line. These documents shall be signed and sealed by a professional engineer or architect, as appropriate, who must be registered in the state.

(4)

A copy of the fully completed application for variance, together with all supporting documents, shall be reviewed by the county manager or designee. No variance granted by the county shall be deemed in effect until copies of applicable valid state permits for the same location and activity have been received by the county manager or his designee.

(5)

The board of county commissioners may grant the requested variance, after public hearing, in those cases where the facts presented at the public hearing evidence that the project meets the conditions outlined in a, b, or c, of this subsection:

a.

Variances from the provisions of sections 62-4207 and 62-4212 may be granted if the subject property has experienced net natural accretion since September 1972. This shall be linearly interpolated from survey data collected at the state department of natural resources monuments immediately north and south of the subject property. The accretion shall be demonstrated by:

1.

Measuring horizontal accumulation from the toe of the dune as it exists at the time of application, to the point on the dune as it existed in September, 1972, which corresponds to the same elevation as the toe of the dune as it exists at the time of application;

2.

Measuring net profile area increase between the county coastal setback line and the toe of the dune as located in [subsection] #1 above. If there is net gain in the interpolated profile area, linear accretion shall be calculated by dividing the profile area by the dune height. The dune height shall also be interpolated from the state monuments located immediately north and south of the subject property by measuring from the toe of the dune, as located in #1 above, to the highest point of the dune seaward of the county coastal setback line; and

3.

That the granting of the variance shall not be injurious to adjacent properties, or contrary to the public interest.

b.

Variances for minor structures from the provisions of sections 62-4207(1), (2), (4); 62-4212(b); and 62-4213(a)(3)—(6) may be granted if the subject property provides public access to the beach and meets the following criteria and such reasonable conditions as the board deems necessary to maintain the purpose and intent of this article:

1.

Minor structures shall be elevated above dune vegetation and shall allow adequate light penetration;

2.

The access shall not exceed ten feet in width;

3.

The property owner shall provide and maintain signage indicating access is open for public use at all entrance and exit points. Signage dimensions and details shall be submitted for approval by the county and shall comply with all land development regulations;

4.

Property owner shall provide three or more parking spaces for public use;

5.

Shore-parallel boardwalks shall comply with requirements per the Americans with Disabilities Act and shall be prohibited seaward of the Coastal Setback Line, except as required for handicapped access;

6.

The granting of the variance shall not be injurious to adjacent properties, or contrary to the public interest; and

7.

The facility shall assume responsibility of maintaining the dune profile at the property by submitting a perpetual dune maintenance plan sealed by a professional engineer and submitted to the county for review. The plan shall establish the minimum necessary sand requirements so as to:

a.

Minimize adverse impacts to the naturally functioning beach and dune system,

b.

Minimize adverse impacts to adjacent properties,

c.

Be designed so as to not impede public access to or along the shore,

d.

Avoid any adverse impact to marine turtles or their nesting habitat, and

e.

Provide appropriate monitoring to ensure compliance with the dune maintenance plan.

Failure of the property owner to maintain the dune in accordance with the approved plan shall constitute a violation of this article.

c.

Variances from the provisions of sections 62-4207; 62-4212(b), (c); and 62-4213(a)(3)—(6) may be granted if the subject property meets the definition of a water dependent or water enhanced land use as defined in the comprehensive plan, and meets the following criteria and such reasonable conditions as the board deems necessary to maintain the purpose and intent of this article:

1.

The facility is open to the public;

2.

The structure is integral to the operation of the facility;

3.

The granting of the variance shall not be injurious to adjacent properties, or contrary to the public interest; and

4.

The facility shall assume responsibility of maintaining the dune profile at the property by submitting a perpetual dune maintenance plan sealed by a professional engineer and submitted to the county for review. The plan shall establish the minimum necessary sand requirements so as to:

a.

Minimize adverse impacts to the naturally functioning beach and dune system,

b.

Minimize adverse impacts to adjacent properties,

c.

Be designed so as to not impede public access to or along the shore,

d.

Avoid any adverse impact to marine turtles or their nesting habitat, and

e.

Provide appropriate monitoring to ensure compliance with the dune maintenance plan.

Failure of the property owner to maintain the dune in accordance with the approved plan shall constitute a violation of this article.

(6)

If the board of county commissioners grants a requested variance, the board may consider waiving the conditions set forth in [section] 62-4209(b)(7) or 62-4209(c)(4), as applicable, if the applicant provides substantial and competent evidence supporting the waiver of said provisions.

(7)

In determining the extent of accretion experienced in the subject property, the board of county commissioners shall take into account the most recent shoreline survey information produced by a federal, state or local government agency; the recommendation of the county office of natural resources management and, if any, the recommendation of the state department of environmental protection, division of beaches and shores, and bureau of coastal engineering and regulation on the DEP permit application submitted for the proposed construction; the historical seasonal fluctuations for the subject property; and the certified topographical survey and other information submitted by the applicant.

(8)

The maximum extent of variance granted under this section (5)a. shall correspond to the accretion measured at the toe of dune in [subsections] (5)a.1. and (5)a.2. above and shall not exceed 25 feet, as determined by the board of county commissioners after the public hearing.

(9)

All other applicable federal, state and county zoning, building and construction codes, rules and regulations shall be satisfied.

(10)

A courtesy notice of the public hearing under this section shall be mailed by the county manager or designee to all property owners within 500 feet of the subject property, as listed in the application presented.

(Ord. No. 85-17, § 8, 6-4-85; Ord. No. 87-30, § 2, 12-1-87; Ord. No. 96-43, 9-24-96; Ord. No. 2002-21E, § 3, 4-30-02; Ord. No. 03-16, § 3, 3-18-03; Ord. No. 2010-025, § 2, 12-2-10)