Special Exceptions, Variances, & Administrative Appeals

Variance

Koberlein Law Offices represents several local governments and has actually written many policies and procedures that regulate how variances, special exceptions, and administrative appeals are handled. 

When we are not helping enforce those client's laws, we represent private citizens, businesses, and developers and their petitions for variances, special exceptions, and administrative appeals in front of Planning and Zoning Boards, Boards of Adjustment, City Councils and Commissions, and County Council and Commissions. We would be honored to review your legal issue and provide you with an overview of what your needs and desires entail.

Florida History

The Florida Growth Management Act requires that every county and city of the State adopt a Comprehensive Plan to guide future growth and land development, usually for a period of anywhere from seven (7) to twenty (20) years. The Future Land Use Map is a critical component of the Comprehensive Plan. This map illustrates future land use designations for every parcel of land in the County. Within each land use designation there are one or more related zoning districts. Land Development Regulations are tools used to implement the Comprehensive Plan.

The Zoning Code is a group of Land Development Regulations which are intended to promote the health, safety, morals and general welfare of the public by regulating the size, height and number of buildings and structures as well as the use of land. Land use and zoning laws were established to specifically ensure how and where commercial and residential property areas are utilized in the growth of geographic locations. These land use and zoning laws not only establish the unique boundaries between residential, commercial business, and industrial areas, but also include distance requirements and restrictions from places such as:

  • Churches; and
  • Schools; and
  • Government facilities; and
  • Daycares; and
  • Establishments that sell alcohol and tobacco; 

What Are Petitions for Variances, Special Exceptions, and Administrative Appeals?

Three types of petitions are commonly requested through the Planning and Zoning Board or Board of Adjustment. These include Special Exceptions, Variances and Administrative Appeals.

  1. Special Exceptions - involve a use that is not permitted outright, but may be permitted when approved by the Planning and Zoning Board or Board of Adjustment. The Planning and Zoning Board or Board of Adjustment may deny a request or approve it with or without conditions. A list of allowable special exceptions appear in the text of each zoning district of the Zoning Code. Special exceptions are frequently known as special approvals, conditional use permits, or conditional uses.
  2. Variances - involve a deviation from specific dimensional requirements within a regulation. These frequently involve modifications to required yards. The granting of a variance is generally based upon special circumstances which create an undue hardship to the property owner. An undue hardship is defined as an exceptional hardship which cannot reasonably be corrected or avoided by the applicant. Self-created problems or common difficulties shared by all other property owners in an area are not an undue hardship.
  3. Administrative Appeals - Occasionally, in the administration of the Zoning Code, parties disagree with the interpretations made by the Zoning Official and wish to appeal a decision. The Administrative Appeals must be initiated within thirty days of the date of the Zoning Official's written opinion which is the subject of the appeal.

Who makes the Determination of Eligibility? The Planning & Zoning Boards and Boards of Adjustment

Variances, special exceptions and appeals of the Zoning Code, as well as variances and appeals to certain other Land Development Regulations, are heard and decided by Planning and Zoning Boards and Boards of Adjustment. The Planning and Zoning Board or Board of Adjustment are both quasi-judicial bodies made up of five to seven members.
The Planning and Zoning Board or Board of Adjustment makes a final decision on all issues brought before it. Decisions are based upon competent substantial evidence in the application materials submitted, the staff review of the information, and public input presented in a public hearing. Planning and Zoning Board or Board of Adjustment decisions are appealable through the local government's Council/Commission and must be filed right after the final decisions of either the Planning and Zoning Board or Board of Adjustment.

What You Must Do - Procedure to Obtain a Hearing and Notice of Public Hearing

All actions of the Planning and Zoning Board or Board of Adjustment are preceded by a public hearing. Upon receipt, by the local government, of an application, a hearing date is set. Generally, three types of notice are given prior to a public hearing

  1. Legal Advertisement giving notice of the request is published in a newspaper of general circulation in Charlotte County. This legal advertisement must contain a description of the request, a description of the subject property, and the time, date and location of the public hearing. All interested persons are invited to appear and be heard.
  2. Written Notice containing the same information appearing in the legal advertisement is mailed to all persons owning property within 200 feet of the subject property, excluding right-of-way, at least 15 days prior to the public hearing. These notices are sent to the property owners shown on the latest available tax rolls. Notice is considered to have been given when placed, postage paid, in the United States mail.
  3. A sign, displaying the request and the time, date and place of the public hearing, is posted on the subject property at least 10 days prior to the public hearing.

Other Types of Petitions that Koberlein Law Offices Handles

Requests for Land Use Plan Amendments, Rezonings, Variance from the Subdivision Regulations, Subdivision Plats and Vacations of Plats or Rights-of-way, are other types of petitions that we, at KLO handle.

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