§ 106-45. Compatibility exception.

(a)

General requirement. Any owner objecting to the proposed comprehensive rezoning of its property pursuant to subsection 106-43(d) on the grounds that it is entitled to a compatibility exception shall submit to the growth planning director a written application for compatibility exception no later than 120 calendar days after notice of inconsistency has been sent to such owner under subsection 106-43(c). Property which is part of a unified plan of development shall be considered under a single consolidated application for compatibility exception to the extent of the applicant's ownership therein. Failure of the owner to submit such application within the time provided shall be deemed a waiver of its right to obtain a compatibility exception and shall constitute an abandonment of any claim to a compatibility exception or similar remedy. Judicial relief shall not be available unless administrative remedies are exhausted, including the final appeal to the board of county commissioners.

(b)

Application. An application for compatibility exception shall be submitted in the form established by the growth planning director, and shall at a minimum, include:

(1)

Name, address, and telephone number of owner and authorized applicant if other than owner;

(2)

Street address, legal description, and acreage of the property;

(3)

Current zoning districts on the subject property and acreage of each;

(4)

Zoning districts proposed by the county on the subject property and acreage of each;

(5)

Zoning districts proposed by the applicant, if any, on the subject property and acreage of each;

(6)

Current zoning districts on all property which is adjacent to, or which is within 300 linear feet on, all sides of the subject property;

(7)

Existing land uses on all property which is adjacent to, or which is within 300 linear feet on all sides of the subject property; and

(8)

Any other information which would reasonably be needed to address the criteria set forth in subsection (f) of this section.

(c)

Determination of completeness. After receipt of an application for compatibility exception, the growth planning director shall determine whether the application submitted is complete. If he determines that the application is not complete, the growth planning director shall notify the applicant in writing of the deficiencies. The growth planning director shall take no further steps to process the application until the deficiencies have been remedied.

(d)

Review and determination by growth planning director. After receipt of a completed application for compatibility exception, the growth planning director shall review and evaluate the application in light of all of the criteria set forth in subsection (f) of this section, and shall deny, grant or grant with conditions the application. The decision of the growth planning director shall include findings of fact for each of the criteria. The growth planning director shall maintain at the growth planning department during regular business hours a written list of proposed determinations on applications for compatibility exceptions. Such list shall be available to the public at least ten calendar days before issuance of the determination.

(e)

Appeal to the board of county commissioners. Within 30 days after issuance of the determination of the growth planning director on the application for compatibility exception, the applicant, any resident of, or owner of real property in, the incorporated or unincorporated area of the county, may appeal, or may thereafter intervene in an appeal of, the determination of the growth planning director on the application for compatibility exception to the board of county commissioners. A fee for the application and processing of an appeal, not to exceed $100.00, shall be established at a rate set by the board of county commissioners from time to time and shall be charged to and paid by either the applicant, or appealing party, as appropriate. The board of county commissioners shall hold an advertised public hearing on the appeal and shall consider the determination of the growth planning director and public testimony in light of all the criteria set forth in subsection (f) of this section. The board of county commissioners shall adopt the growth planning director's determination on the application for compatibility exception with or without modifications or conditions, or reject the growth planning director's determination. The board of county commissioners shall not be authorized to modify or reject the growth planning director's determination unless the board of county commissioners finds that the determination is not supported by substantial competent evidence or that the growth planning director's determination is contrary to the criteria established in subsection (f) of this section. The decision of the board of county commissioners shall include findings of fact for each of the criteria.

(f)

Proposed criteria for compatibility exception.

(1)

Generally. A compatibility exception under this section is to be distinguished from a compatibility determination under section 106-40(5). A compatibility exception is available only to unimproved property. A compatibility exception shall be granted, with or without conditions, only if the applicant demonstrates by substantial competent evidence that zoning districts consistent with the growth management plan on the subject property would be incompatible with existing land uses in the surrounding neighborhood. In this regard, the following factors shall be considered to determine whether the subject property qualifies for a compatibility exception:

a.

If applicable, whether the subject property should have been determined to be compatible pursuant to section 106-40.

b.

Whether the land use patterns, densities and intensities allowed under zoning districts consistent with the growth management plan on the subject property are compatible with those existing on property within the nearby surrounding area of the subject property.

c.

Whether land use patterns, densities and intensities allowed under the existing zoning districts on the subject property are compatible with those existing on property within the nearby surrounding area of the subject property.

d.

Whether the existing zoning district boundaries are illogically drawn in relation to existing conditions, such as irregular configuration (depth, width, frontage, size), topography, and environmental considerations, on the subject property.

e.

Whether consistent zoning districts on the subject property will adversely impact, or be adversely impacted by, the nearby surrounding area or whether the existing zoning district will adversely impact, or be adversely impacted by, the nearby surrounding area.

f.

Whether consistent zoning districts will create or excessively increase traffic congestion or otherwise affect public safety or whether the existing zoning districts will create or excessively increase traffic congestion or otherwise affect public safety, or whether the level of existing traffic would have an adverse impact on consistent zoning districts or existing zoning districts.

g.

Whether consistent zoning districts will be out of scale or out of character with the existing land uses and the needs of the nearby surrounding neighborhood or whether the existing zoning districts will be out of scale or out of character with the existing land uses and needs of the nearby surrounding neighborhood.

(2)

Limitations.

a.

Any compatibility exception granted shall not be for a zoning district which allows intensity or density of use which is more intense or dense than the average of the intensity or density of those uses in the nearby surrounding area of the subject property.

b.

A compatibility exception shall apply to the land and is therefore transferrable from owner to owner of the land subject to the compatibility exception.

c.

Anything in this article to the contrary notwithstanding, a compatibility exception may be revoked upon a showing by the county of a peril to public health, safety or general welfare of the residents of the county unknown at the time of approval.

(g)

Amendment to growth management plan and rezoning petition. The growth planning director shall process an amendment to the growth management plan at the next available growth management plan amendment cycle pursuant to F.S. § 163.3187, and a rezoning petition, if necessary, to reflect all applications for compatibility exception which have been granted to reflect any land use changes required pursuant to the issuance of any compatibility exception. Building permits for development pursuant to a compatibility exception shall be contingent upon such growth management plan amendment being adopted.

(Ord. No. 90-23, § 10; Ord. No. 91-41, §§ 1, 2)