§ 33-311. Community Zoning Appeals Board—Authority and duties.
(A)
Except as otherwise provided by this chapter, the Community Zoning Appeals Boards and Board of County Commissioners shall have the authority and duty to consider and act upon applications, as hereinafter set forth, after first considering the written recommendations thereon of the Director or Developmental Impact Committee. Provided, however, no such action shall be taken until notice of time and place of the hearing at which the Community Zoning Appeals Boards will consider the application has been first published as provided in Section 33-310.2. The Community Zoning Appeals Boards are advised that the purpose of zoning and regulations is to provide a comprehensive plan and design to lessen the congestion in the highways; to secure safety from fire, panic and other dangers, to promote health, safety, morals, convenience and the general welfare; to provide adequate light and air; to prevent the overcrowding of land and water; to avoid undue concentration of population; to facilitate the adequate provisions of transportation, water, sewerage, schools, parks and other public requirements, with the view of giving reasonable consideration among other things to the character of the district or area and its peculiar suitability for particular uses and with a view to conserving the value of buildings and property and encouraging the most appropriate use of land and water throughout the County. The Community Zoning Appeals Board and Board of County Commissioners or any of their members may inspect the premises and area under consideration. The Community Zoning Appeals Boards shall have authority over the following zoning applications except where the Board of County Commissioners has direct jurisdiction.
(1)
Minimum square footage requirements. Hear and grant or deny applications to increase or decrease the minimum square footage requirements for building in a particular area, provided, it finds that the increase or decrease would be comparable with that required for the area or surrounding area or that established by improvements in the area or surrounding area.
(2)
Appeal of administrative variances, administrative adjustments; and appeals of administrative determination regarding existing mobile home parks issued pursuant to Section 33-310.2, administrative site plan review substantial compliance determinations, and administrative correction of clerical or scrivener's errors.
(a)
Upon application for, hear and decide appeals where it is alleged there is an error in the granting or denial of an administrative variance, administrative adjustment, administrative determination regarding mobile home park property redevelopment action pursuant to Section 33-169.1, administrative site plan review, determination of substantial compliance, or administrative correction of a clerical or scrivener's error, pursuant to the provisions of this Code. Such administrative decisions shall not include appeals filed pursuant to Sections 2-114.1 through 2-114.4.
(b)
Pursuant to the provisions of Section 33-36.1 any aggrieved property owner in the area may appeal the decision of the Director to the appropriate Community Zoning Appeals Board within fifteen (15) days after the Director's decision is published in a newspaper of general circulation. An aggrieved applicant must file a new application with the appropriate Miami-Dade County Community Zoning Appeals Board pursuant to the provisions of this chapter and must comply fully with the requirements of Section 33-311 "Variances from Other Than Airport Regulations".
(3)
Special exceptions (for all applications other than public charter schools), unusual and new uses. Hear application for and grant or deny special exceptions, except applications for (i) public charter schools and (ii) approval of self-service mini-warehouse storage facilities as provided in Section 33-314; that is, those exceptions permitted by the regulations only upon approval after public hearing, new uses and unusual uses which by the regulations are only permitted upon approval after public hearing; provided the applied for exception or use, including exception for site or plot plan approval, in the opinion of the Community Zoning Appeals Board, would not have an unfavorable effect on the economy of Miami-Dade County, Florida, would not generate or result in excessive noise or traffic, cause undue or excessive burden on public facilities, including water, sewer, solid waste disposal, recreation, transportation, streets, roads, highways or other such facilities which have been constructed or which are planned and budgeted for construction, are accessible by private or public roads, streets or highways, tend to create a fire or other equally or greater dangerous hazards, or provoke excessive overcrowding or concentration of people or population, when considering the necessity for and reasonableness of such applied for exception or use in relation to the present and future development of the area concerned and the compatibility of the applied for exception or use with such area and its development.
(a)
Hear application for and grant or deny unusual uses for Wireless Supported Service Facilities, which by the regulations are only permitted upon approval after public hearing; provided the applied for use, in the opinion of the Community Zoning Appeals Board, would not have an unfavorable effect on the economy of Miami-Dade County, Florida, would not generate or result in excessive noise or traffic, cause undue or excessive burden on public facilities, including water, sewer, solid waste disposal, recreation, transportation, streets, roads, highways or other such facilities which have been constructed or which are planned and budgeted for construction, are accessible by private or public roads, streets or highways, tend to create a fire or other equally or greater dangerous hazards, or provoke excessive overcrowding or concentration of people or population, when considering the necessity for and reasonableness of such applied for use in relation to the present and future development of the area concerned and the compatibility of the applied for use with such area and its development, provided that:
i.
The applicant shall demonstrate that the proposed Wireless Supported Service Facility will cure:
a.
signal interference problems; or
b.
the applicant's lack of wireless service coverage or capacity in the area intended to be served by the proposed Wireless Supported Service Facility
ii.
The applicant shall provide information to permit independent verification of factual data relied upon by the applicant to establish 3(a)(i) above, including, but not limited to the following:
a.
the purpose for the proposed Wireless Supported Service Facility; and
b.
the following technical data for the proposed Wireless Supported Service Facility and for each existing, authorized, pending and proposed adjacent facility:
i.
site name or other reference;
ii.
facility latitude and longitude;
iii.
site elevation;
iv.
for each antenna at each of the included facilities:
1.
height of antenna radiation center;
2.
antenna type and manufacturer;
3.
maximum effective radiated output power, including the maximum total power radiated from all channels;
4.
azimuth of main antenna lobe; and
5.
beam tilt and null-fill of each antenna.
c.
a complete up- and down-link power budget for the proposed Wireless Supported Service Facility, including any differences that may exist with the power budgets of the adjacent facilities, to ensure that all of the gain and loss factors used by the applicant are included in a verification analysis.
d.
complete descriptions of methodology, formulas, data presented in appropriate parameter data units (e.g., Erlangs, Watts, dBm, ft.), existing traffic studies and trend analyses if the proposed facility is intended to cure a lack of capacity, and any other information necessary for an independent engineer to verify statements concerning signal interference or lack of capacity or coverage; and
e.
identification of any equipment that differs from industry standards.
iii.
that the applicant shall reimburse the department for fees charged to the department for independent verification of factual data relied upon by the applicant, as required pursuant to paragraph 3 a ii above.
(4)
(a)
Use variances from other than airport regulations. Upon appeal or direct application in specific cases to hear and grant applications for use variances from the terms of the zoning regulations as will not be contrary to the public interest, where owing to special conditions, a literal enforcement of the provisions thereof will result in unnecessary hardship, and so the spirit of the regulations shall be observed and substantial justice done; provided, that the use variance will be in harmony with the general purpose and intent of the regulation, and that the same is the minimum use variance that will permit the reasonable use of the premises; and further provided, no variance from any airport zoning regulation shall be granted under this subsection; provided, however, no use variance shall be granted permitting a BU or IU use in any residential, AU or GU District, unless the premises immediately abuts a BU or IU District. A "use variance" is a variance which permits a use of land other than which is prescribed by the zoning regulations and shall include a change in permitted density.
(b)
Non-use variances from other than airport regulations. Upon appeal or direct application in specific cases to hear and grant applications for non-use variances from the terms of the zoning and subdivision regulations, the Board (following a public hearing) may grant a non-use variance upon a showing by the applicant that the non-use variance maintains the basic intent and purpose of the zoning, subdivision and other land use regulations, which is to protect the general welfare of the public, particularly as it affects the stability and appearance of the community and provided that the non-use variance will be otherwise compatible with the surrounding land uses and would not be detrimental to the community. No showing of unnecessary hardship to the land is required. For the purpose of this subsection, the term "non-use variances" involves matters such as setback lines, frontage requirements, subdivision regulations, height limitations, lot size restrictions, yard requirements and other variances which have no relation to change of use of the property in question.
(c)
Alternative non-use variance standard. Upon appeal or direct application in specific cases to hear and grant applications for non-use variances from the terms of the zoning and subdivision regulations, upon a showing by the applicant that the variance will not be contrary to the public interest, where owing to special conditions, a literal enforcement of the provisions thereof will result in unnecessary hardship, and so the spirit of the regulations shall be observed and substantial justice done; provided, that the non-use variance will be in harmony with the general purpose and intent of the regulation, and that the same is the minimum non-use variance that will permit the reasonable use of the premises; and further provided, no non-use variance from any airport zoning regulation shall be granted under this subsection.
(5)
Variances from airport zoning regulations. Hear applications for and grant or deny variances from any airport zoning regulations, but in considering, granting or denying any such variance the Community Zoning Appeals Boards shall be governed and shall abide by the guides and standards, general purpose and intent of the particular airport zoning regulation concerned. No such application shall be heard until the recommendation of the Director of the Aviation Department is first obtained, which recommendation shall be considered, together with that of the Director's. Additionally, and in accordance with Section 333.025(4), Florida Statutes, no hearing shall be held until the Aviation and Spaceports Office of the Florida Department of Transportation has received a copy of the variance application and has been provided a minimum of 15 days to comment. The granting of a variance under this subsection does not authorize or permit violation of other zoning regulations or the zoning regulations of any municipality concerned unless authorized by the appropriate County or municipal board, body or commission concerned, as the case may be.
(6)
Variances from subdivision regulations. Hear applications for and grant or deny variances from subdivision regulations (Chapter 28 of the Code of Miami-Dade County) in accordance with and pursuant to the authority and standards set forth in Section 28-19 of the code.
(7)
Hear applications to modify or eliminate any condition or part thereof which has been imposed by any final decision adopted by resolution, and to modify or eliminate any provisions of restrictive covenants, or parts thereof, accepted at public hearing, except as otherwise provided in Section 33-314(C)(3); provided, that the appropriate board finds after public hearing (a) that the modification or elimination, in the opinion of the Community Zoning Appeals Board, would not generate excessive noise or traffic, tend to create a fire or other equally or greater dangerous hazard, or provoke excessive overcrowding of people, or would not tend to provoke a nuisance, or would not be incompatible with the area concerned, when considering the necessity and reasonableness of the modification or elimination in relation to the present and future development of the area concerned, or (b) (i) that the resolution that contains the condition approved a school use that was permitted only as a special exception, (ii) that subsequent law permits that use as of right without the requirement of approval after public hearing, and (iii) that the requested modification or elimination would not result in development exceeding the standards provided for schools authorized as a matter of right without the requirement of approval after public hearing. It is further provided, however, that no zoning application to delete or modify, in a manner inconsistent with Section 33-310.1(A)(I)(B)(7), a common open space or common use amenity within a residential site plan that was previously approved upon public hearing shall be approved except upon a two-thirds vote of the members present at the hearing at which the application is decided; this provision shall not apply to an application to modify or delete a condition or restrictive covenant, or parts thereof, within an urban center district or urban area district.
(8)
Hear and grant or deny applications for district boundary changes on individual pieces of property or on a neighborhood or area-wide basis except where the Board of County Commissioners has direct jurisdiction.
(9)
Hear and make recommendations to the Board of County Commissioners on applications for developments of regional impact and related requests, including requests for modifications thereof and substantial deviation determinations pursuant to F.S. § 380.06(19), as amended, as provided by Section 33-314 except an application for modification or elimination of a condition or restrictive covenant that is not a substantial deviation, or an application to extend a commencement date, build-out date, expiration date, phasing deadline, or applicable mitigation requirements for the maximum period of time declared by state law regardless of any previous extension not to constitute a substantial deviation from development orders for currently valid developments of regional impact development orders, and related applications for zoning actions to accomplish only the requested extension, where such application does not contain a request for any other action under this chapter requiring a public hearing apart from modifying the DRI development order; it is provided, however, that, pursuant to F.S. § 380.06(19)(c)(2), the foregoing exception from CZAB review shall not apply to development orders for which, before December 1, 2011, the County has notified a developer that has commenced any construction within the phase for which mitigation is required that the County has entered into a contract for construction of a facility with funds to be provided from the development's mitigation funds for that phase as specified in the development order or written agreement with the developer.
(10)
The Community Zoning Appeals Boards shall review those plans submitted as part of an application for a planned development. The Community Zoning Appeals Board shall decide if the proposed development is in accordance with the provisions for a planned development and shall diligently consider the recommendations of the Director and the Zoning Official or the Developmental Impact Committee prior to recommending approval, approval with modification, or denial. The Community Zoning Appeals Board shall approve an application for a planned development only when plans and other exhibits are in compliance with the criteria for a planned development and otherwise meet the criteria contained in this section.
(11)
Notwithstanding anything in Section 24-58.1 to the contrary, the Community Zoning Appeals Board shall hear, grant or deny applications for unusual uses or amendments or modifications thereto described in Section 33-13(e) when said unusual uses, amendments or modifications are in connection with a class I or class IV permit application, as defined in Section 24-58.1.
(12)
Hear and make recommendations to the Board of County Commissioners on applications for projects or modifications thereto within the Core Sub-District of the Downtown Kendall Urban Center District as provided by Section 33-314.
(13)
Hear applications to modify or eliminate any condition or part thereof which has been imposed by any final decision adopted by resolution regulating any parcel of land located within the Downtown Kendall Urban Center, the Naranja Community Urban Center, or any other Urban Center zoning districts, where and to the extent that modification or elimination of the condition or part thereof is necessary to allow development conforming in all respects with the Downtown Kendall Urban Center District, the Naranja Community Urban Center District, or any other applicable Urban Center zoning district regulations.
(14)
Alternative Site Development Option for Single-family and Duplex Dwellings. This subsection provides for the establishment of an alternative site development option, after public hearing, for single-family and duplex dwellings, when such uses are permitted by the underlying district regulations, in the GU, RU-1, RU-1Z, RU-1M(a), RU-1M(b), RU-2, RU-TH, RU-3, RU-3M, RU-3B, RU-4L, RU-4M, RU-4, RU-4A, RU-5, EU-M, EU-S, EU-1, EU-1C, EU-2, and AU zoning districts, in accordance with the standards established herein. In considering any application for approval hereunder, the Community Zoning Appeals Board shall consider the same subject to approval of a site plan or such other plans as necessary to demonstrate compliance with the standards herein.
(a)
Purpose. The purpose of this subsection is to create objective standards to regulate the site-specific development of single-family and duplex uses in specified zoning districts. The standards provided in this subsection are alternatives to the generalized standards contained in regulations governing the specified zoning districts. The site development standards permit alternative patterns of site development in accordance with the Comprehensive Development Master Plan ("CDMP") where the public interest served by the underlying district regulations and CDMP will be served, and the objectives of the creative urban design, urban infill development and redevelopment, or the preservation and enhancement of property values will be promoted, as demonstrated by the proposed alternative development's compliance with the standards of this subsection. A zoning application for development in compliance with the alternative standards shall be approved upon demonstration at public hearing that the proposed development is in compliance with the applicable alternative standards and does not contravene the enumerated public interest standards established herein.
(b)
For the purposes of this subsection, the following terms shall have the following meanings:
"Immediate vicinity" means an area in which a parcel of land proposed for alternative development is located that is physically, functionally or geographically identifiable as a distinct realm, place or neighborhood, or an area within a radius of not more than five hundred (500) feet from the parcel proposed for alternative development, whichever is smaller.
"Open space" means that portion of a parcel of land which is not covered with a building and is open to the sky and may include patios, limited roof overhangs, screened enclosures with screened roofs, open trellises, walkways, swimming pools, tennis courts, landscaped areas, decks, and non-covered parking areas.
"Parcel proposed for alternative development" means the site of the structure for which approval is sought under this subsection.
"Proposed alternative development" means any building activity for which approval is sought under this subsection.
"Underlying district regulations" means the site development regulations of the particular zoning district in which the proposed alternative development is located, such as setbacks, lot area, frontage, and depth, lot coverage, and structure height.
(c)
Setbacks for a single-family or duplex dwelling shall be approved after public hearing upon demonstration of the following:
(1)
the character and design of the proposed alternative development will not result in a material diminution of the privacy of adjoining residential property; and
(2)
the proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity, taking into account existing structures and open space; and
(3)
the proposed alternative development will not reduce the amount of open space on the parcel proposed for alternative development to less than 40 percent of the total net lot area; and
(4)
any area of shadow cast by the proposed alternative development upon an adjoining parcel of land during daylight hours will be no larger than would be cast by a structure constructed pursuant to the underlying district regulations, or will have no more than a de minimus impact on the use and enjoyment of the adjoining parcel of land; and
(5)
the proposed alternative development will not involve the installation or operation of any mechanical equipment closer to the adjoining parcel of land than any other portion of the proposed alternative development, unless such equipment is located within an enclosed, soundproofing structure; and
(6)
the proposed alternative development will not involve any outdoor lighting fixture that casts light on an adjoining parcel of land at an intensity greater than permitted by this Code; and
(7)
the architectural design, scale, mass, and building materials of any proposed structure or addition are aesthetically harmonious with that of other existing or proposed structures or buildings on the parcel proposed for alternative development; and
(8)
the wall of any building within a setback area required by the underlying district regulations shall be improved with architectural details and treatments that avoid the appearance of a "blank wall"; and
(9)
the proposed alternative development will not result in the destruction or removal of mature trees within a setback required by the underlying district regulations, with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the same side of the lot; and
(10)
any windows or doors in any building to be located within an interior side setback required by the underlying district regulations shall be designed and located so that they are not aligned directly across from facing windows or doors on buildings located on an adjoining parcel of land; and
(11)
total lot coverage shall not be increased by more than twenty (20) percent of the lot coverage permitted by the underlying district regulations; and
(12)
the area within an interior side setback required by the underlying district regulations located behind the front building line will not be used for off-street parking except:
(A)
in an enclosed garage where the garage door is located so that it is not aligned directly across from facing windows or doors on buildings located on an adjoining parcel of land; or
(B)
if the off-street parking is buffered from property that abuts the setback area by a solid wall at least six (6) feet in height along the area of pavement and parking, with either:
(i)
articulation to avoid the appearance of a "blank wall" when viewed from the adjoining property, or
(ii)
landscaping that is at least three (3) feet in height at time of planting, located along the length of the wall between the wall and the adjoining property, accompanied by specific provision for the maintenance of the landscaping, such as but not limited to, an agreement regarding its maintenance in recordable form from the adjoining landowner; and
(13)
any structure within an interior side setback required by the underlying district regulations:
(A)
is screened from adjoining property by landscape material of sufficient size and composition to obscure at least sixty (60) percent of the proposed alternative development to a height of the lower fourteen (14) feet of such structure at time of planting; or
(B)
is screened from adjoining property by an opaque fence or wall at least six (6) feet in height that meets the standards set forth in paragraph (f) herein; and
(14)
any proposed alternative development not attached to a principal building, except canopy carports, is located behind the front building line; and
(15)
any structure not attached to a principal building and proposed to be located within a setback required by the underlying district regulations shall be separated from any other structure by at least three (3) feet; and
(16)
when a principal building is proposed to be located within a setback required by the underlying district regulations, any enclosed portion of the upper floor of such building shall not extend beyond the first floor of such building within the setback; and
(17)
the eighteen (18) inch distance between any swimming pool and any wall or enclosure required by this Code is maintained; and
(18)
safe sight distance triangles shall be maintained as required by this Code; and
(19)
the parcel proposed for alternative development will continue to provide on-site parking as required by this Code; and
(20)
the parcel proposed for alternative development shall satisfy underlying district regulations or, if applicable, prior zoning actions or administrative decisions issued prior to the effective date of this ordinance (August 2, 2002), regulating lot area, frontage and depth; and
(21)
the proposed development will meet the following:
(A)
interior side setbacks will be at least three (3) feet or fifty (50) percent of the side setbacks required by the underlying district regulations, whichever is greater;
(B)
side street setbacks shall not be reduced by more than fifty (50) percent of the underlying district regulations;
(C)
interior side setbacks for active recreational uses shall be no less than seven (7) feet in an EU, AU or GU zoning district or three (3) feet in all other zoning districts to which this subsection applies;
(D)
front setbacks will be at least twelve and one-half (12½) feet or fifty (50) percent of the front setbacks required by the underlying district regulations, whichever is greater;
(E)
rear setbacks will be at least three (3) feet for detached accessory structures and ten (10) feet for principal structures.
(d)
The lot area, frontage, or depth for a single-family or duplex dwelling shall be approved upon demonstration of at least one of the following:
(1)
the proposed lot area, frontage or depth will permit the development or redevelopment of a single-family or duplex dwelling on a parcel of land where such dwelling would not otherwise be permitted by the underlying district regulations due to the size or configuration of the parcel proposed for alternative development, provided that:
(A)
the parcel is under lawful separate ownership from any contiguous property and is not otherwise grandfathered for single-family or duplex use; and
(B)
the proposed alternative development will not result in the further subdivision of land; and
(C)
the size and dimensions of the lot are sufficient to provide all setbacks required by the underlying district regulations; and
(D)
the lot area is not less than ninety (90) percent of the minimum lot area required by the underlying district regulations; and
(E)
the proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity; and
(F)
the parcel proposed for alternative development is not zoned AU of GU, nor is it designated agricultural or open land under the Comprehensive Development Master Plan; and
(G)
Sufficient frontage shall be maintained to permit vehicular access to all resulting lots.
(2)
the proposed alternative development will result in open space, community design, amenities or preservation of natural resources that enhances the function or aesthetic character of the immediate vicinity in a manner not otherwise achievable through application of the underlying district regulations, provided that:
(A)
the density of the proposed alternative development does not exceed that permitted by the underlying district regulations; and
(B)
the size and dimensions of each lot in the proposed alternative development are sufficient to provide all setbacks required by the underlying district regulations, or, if applicable, any prior zoning actions or administrative decisions issued prior to the effective date of this ordinance (August 2, 2002); and
(C)
each lot's area is not less than eighty (80) percent of the lot area required by the underlying district regulations; and
(D)
the proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity; and
(E)
the parcel proposed for alternative development is not zoned AU of GU, nor is it designated agricultural or open land under the Comprehensive Development Master Plan; and
(F)
sufficient frontage shall be maintained to permit vehicular access to all resulting lots.
(3)
the proposed lot area, frontage or depth is such that:
(A)
the proposed alternative development will not result in the creation of more than three (3) lots; and
(B)
the size and dimensions of each lot are sufficient to provide all setbacks required by the underlying district regulations; and
(C)
no lot area shall be less than the smaller of:
(i)
Ninety (90) percent of the lot area required by the underlying district regulations; or
(ii)
The average area of the developed lots in the immediate vicinity within the same zoning district;
(D)
the proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity; and
(E)
the parcel proposed for alternative development is not zoned AU or GU, nor is it designated agricultural or open land under the Comprehensive Development Master Plan; and
(F)
sufficient frontage shall be maintained to permit vehicular access to all resulting lots.
(4)
if the proposed alternative development involves the creation of new parcels of smaller than five (5) gross acres in an area designated agricultural in the Comprehensive Development Master Plan:
(A)
the abutting parcels are predominately parcelized in a manner similar to the proposed alternative development on three (3) or more sides of the parcel proposed for alternative development; and
(B)
the division of the parcel proposed for alternative development will not precipitate additional land division in the area; and
(C)
the size and dimensions of each lot in the proposed alternative development are sufficient to provide all setbacks required by the underlying district regulations; and
(D)
the proposed alternative development will not result in an obvious departure from the aesthetic character of the surrounding area defined by the closest natural and man-made boundaries lying with the agricultural designation; and
(E)
Sufficient frontage shall be maintained to permit vehicular access to all resulting lots.
(e)
A lot coverage ratio for a single-family or duplex dwelling shall be approved upon demonstration of the following:
(1)
total lot coverage shall not be increased by more than twenty (20) percent of the lot coverage permitted by the underlying district regulations provided, however, that the proposed alternative development shall not result in total lot coverage exceeding 50% of the net lot area; and
(2)
the proposed alternative development will not result in the destruction or removal of mature trees on the lot with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the lot; and
(3)
the increase in lot coverage will not result in a principal building with an architectural design, scale, mass or building materials that are not aesthetically harmonious with that of other existing or proposed structures in the immediate vicinity; and
(4)
the proposed alternative development will not result in an obvious departure from the aesthetic character of in the immediate vicinity.
(f)
An alternative maximum height of walls, hedges or fences for a single-family or duplex dwelling shall be approved upon demonstration of the following:
(1)
no wall, hedge or fence shall exceed eight (8) feet in height; and
(2)
no wall, hedge or fence located in a front setback required by the underlying district regulations shall exceed six (6) feet in height; and
(3)
the additional height of a proposed wall, hedge or fence will not obscure in whole or in part an existing view or vista to any landmark, natural area, or waterbody from any window or door in a residential unit on an adjoining parcel of land; and
(4)
proposed walls or fences shall be:
(A)
articulated to avoid the appearance of a "blank wall" when viewed from adjoining property; or
(B)
landscaped with landscaping that is at least three (3) feet in height at time of planting, located along the length of the wall between the wall and the adjoining property, accompanied by specific provision for the maintenance of the landscaping, such as but not limited to, an agreement from the landowner regarding its maintenance in recordable form from the adjoining property owner; or
(C)
where facing a public right-of-way, set back at least two and one-half (2½) feet from the right-of-way line and extensively landscaped with shrubs of a minimum of three (3) feet in height when measured immediately after planting, which will form a continuous, unbroken, solid, visual screen within one (1) year after time of planting; hedges of a minimum of three (3) feet in height immediately after planting, which will form a continuous, unbroken, solid, visual screen within one (1) year after time of planting; and/or climbing vines of a minimum of thirty-six (36) inches in height immediately after planting; and
(5)
proposed fences shall be constructed or installed so that the "unfinished" side is directed inward toward the center of the parcel proposed for alternative development; and
(6)
proposed fences are constructed of durable materials and are decorative; and
(7)
proposed fences in the front building line are not comprised of chain link or other wire mesh, unless located in an EU-1, EU-2, AU or GU with AU, EU-1, or EU-2 trend zoning district; and
(8)
safe sight distance triangles are maintained pursuant to this Code.
(g)
Notwithstanding the foregoing, no proposed alternative development shall be approved upon demonstration that the proposed alternative development:
(1)
will result in a significant diminution of the value of property in the immediate vicinity; or
(2)
will have substantial negative impact on public safety due to unsafe automobile movements, heightened vehicular-pedestrian conflicts, or heightened risk of fire; or
(3)
will result in a materially greater adverse impact on public services and facilities than the impact that would result from development of the same parcel pursuant to the underlying district regulations; or
(4)
will combine severable use rights obtained pursuant to Chapter 33B of this Code in conjunction with the approval sought hereunder so as to exceed the limitations imposed by Section 33B-45 of this Code.
(h)
Proposed alternative development under this subsection shall provide additional amenities or buffering to mitigate the impacts of the development as approved, where the amenities or buffering expressly required by this subsection are insufficient to mitigate the impacts of the development. The purpose of the amenities or buffering elements shall be to preserve and protect the quality of life of the residents of the approved development and the immediate vicinity in a manner comparable to that ensured by the underlying district regulations. Examples of such amenities include but are not limited to: active or passive recreational facilities, common open space, additional trees or landscaping, convenient covered bus stops or pick-up areas for transportation services, sidewalks (including improvements, linkages, or additional width), bicycle paths, buffer areas or berms, street furniture, undergrounding of utility lines, and decorative street lighting. In determining which amenities or buffering elements are appropriate for a proposed development, the following shall be considered:
(A)
the types of needs of the residents of the parcel proposed for development and the immediate vicinity that would likely be occasioned by the development, including, but not limited to, recreational, open space, transportation, aesthetic amenities, and buffering from adverse impacts; and
(B)
the proportionality between the impacts on residents of the proposed alternative development and the immediate vicinity and the amenities or buffering required. For example, a reduction in lot area for numerous lots may warrant the provision of additional common open space. A reduction in a particular lot's interior side setback may warrant the provision of additional landscaping.
(15)
Alternative Site Development Option for Single-family Zero Lot line Dwellings. This subsection provides for the establishment of an alternative site development option, after public hearing, for zero lot line dwellings, when such uses are permitted by the underlying district regulations, or when such uses were approved for development by a prior public hearing action, in accordance with the standards established herein. In considering any application for approval hereunder, the Community Zoning Appeals Board shall consider the same subject to approval of a site plan or such other plans as necessary to demonstrate compliance with the standards herein.
(a)
Purpose. The purpose of this subsection is to create objective standards to regulate site specific development of zero lot line dwellings. The standards provided in this subsection are alternatives to the generalized standards contained in regulations governing this specified type of residence. A zoning application for development in compliance with the alternative standards shall be approved upon demonstration at public hearing that the proposed development is in compliance with the applicable alternative standards and does not contravene the enumerated public interest standards established herein.
(b)
Alternative setbacks for a zero lot line dwelling shall be approved after public hearing upon demonstration of the following:
(1)
the character and design of the proposed alternative development will not result in a material diminution of the privacy of adjoining residential property; and
(2)
the proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity, taking into account existing structures and open space; and
(3)
the proposed alternative development will not reduce the amount of open space on the lot proposed for alternative development to less than 40% of the total net lot area; and
(4)
any area of shadow cast by the proposed alternative development upon an adjoining parcel of land during daylight hours will be no larger than would be cast by a structure constructed pursuant to the applicable underlying district regulations, or will have no more than a de minimus impact on the use and enjoyment of the adjoining parcel of land; and
(5)
the proposed alternative development will not involve the installation or operation of any mechanical equipment closer to the adjoining parcel of land than any other portion of the proposed alternative development, unless such equipment is located within an enclosed, soundproofing structure; and
(6)
the proposed alternative development will not involve any outdoor lighting fixture that casts light on an adjoining parcel of land at an intensity greater than permitted by this Code; and
(7)
the architectural design, scale, mass, and building materials of any proposed structure or addition are aesthetically harmonious with that of other existing or proposed structures or buildings on the parcel proposed for alternative development; and
(8)
the wall of any building within a setback area required by the underlying district regulations or the regulations in effect at the time of development, shall be improved with architectural details and treatments that avoid the appearance of a "blank wall"; and
(9)
the proposed alternative development will not result in the destruction or removal of mature trees within a setback required by the underlying district regulations or the regulations in effect at the time of development, with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the same side of the lot; and
(10)
any windows or doors in any building to be located within an interior side setback required by the underlying district regulations or the regulations in effect at the time of development shall be designed and located so that they are not aligned directly across from facing windows or doors on buildings located on an adjoining parcel of land; and
(11)
total lot coverage shall not be increased by more than ten (10%) percent of the lot coverage permitted by the underlying district regulations or the regulations in effect at the time of development; and
(12)
the area within an interior side setback required by the underlying district regulations or the regulations in effect at the time of development, located behind the front building line will not be used for off-street parking except
(A)
in an enclosed garage where the garage door is located so that it is not aligned directly across from facing windows or doors on buildings located on an adjoining parcel of land; or
(B)
if the off-street parking is buffered from property that abuts the setback area by a solid wall at least six (6) feet in height along the area of pavement and parking, with either:
(i)
articulation to avoid the appearance of a "blank wall" when viewed from the adjoining property, or
(ii)
landscaping that is at least three (3) feet in height at time of planting, located along the length of the wall between the wall and the adjoining property, accompanied by specific provision for the maintenance of the landscaping, such as but not limited to, an agreement regarding its maintenance in recordable form from the adjoining landowner; and
(13)
any structure within an interior side setback required by the underlying district regulations or the regulations in effect at the time of development:
(A)
is screened from adjoining property by landscape material of sufficient size and composition to obscure at least sixty percent (60%) of the proposed alternative development to a height of the lower fourteen (14) feet of such structure at time of planting; or
(B)
is screened from adjoining property by an opaque fence or wall at least six (6) feet in height that meets the standards set forth in paragraph (f) herein; and
(14)
any proposed alternative development not attached to a principal building, except canopy carports, is located behind the front building line; and
(15)
any structure not attached to a principal building and proposed to be located within a setback required by the underlying district regulations or the regulations in effect at the time of development shall be separated from any other structure by at least three (3) feet; and
(16)
when a principal building is proposed to be located within a setback required by the underlying district regulations or the regulations in effect at the time of development, any enclosed portion of the upper floor of such building shall not extend beyond the first floor of such building within the setback; and
(17)
the eighteen (18) inch distance between any swimming pool and any wall or enclosure required by this Code is maintained; and
(18)
safe sight distance triangles shall be maintained as required by this Code; and
(19)
the parcel proposed for alternative development will continue to provide on-site parking as required by this Code; and
(20)
the parcel proposed for alternative development shall satisfy underlying district regulations or the regulations in effect at the time of development or, if applicable, prior zoning actions or administrative decisions issued prior to the effective date of this ordinance (May 2, 2003) regulating lot area, frontage and depth; and
(21)
the proposed alternative development of the lot will meet the following:
(A)
the interior side setbacks will be at least four (4) feet or the minimum distance necessary to comply with Fire safety requirements, whichever is greater;
(B)
the side street setback shall not be reduced by more than fifty percent (50%) of the underlying district regulations or the regulations in effect at the time of development;
(C)
the interior side setbacks for active recreational uses shall be no less than seven (7) feet or the minimum distance necessary to comply with Fire safety requirements, whichever is greater;
(D)
the front setback of the dwelling or accessory use shall not be reduced;
(E)
the rear setback will be at least three (3) feet for detached accessory structures and ten (10) feet for principal structures;
(F)
the proposed alternative development shall not encroach into the maintenance easement as required by this chapter and shown on the approved plat; and
(G)
the proposed alternative development shall not contain openings on the zero lot line side of the structure, other than permitted by the underlying district regulations.
(c)
An alternative lot coverage ratio for a zero lot line dwelling shall be approved upon demonstration of the following:
(1)
total lot coverage shall not be increased by more than ten percent (10%) of the lot coverage permitted by the underlying district regulations or the regulations in effect at the time of development; and
(2)
the proposed alternative development will not result in the destruction or removal of mature trees on the lot with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the lot; and
(3)
the increase in lot coverage will not result in a principal building with an architectural design, scale, mass or building materials that are not aesthetically harmonious with that of other existing or proposed structures in the immediate vicinity; and
(4)
the proposed alternative development will not result in an obvious departure from the aesthetic character of in the immediate vicinity.
(d)
An alternative maximum height of walls, hedges or fences for a zero lot line dwelling shall be approved upon demonstration of the following:
(1)
no wall, hedge or fence shall exceed eight (8) feet in height; and
(2)
no wall, hedge or fence located in a front setback required by the underlying district regulations or the regulations in effect at the time of development shall exceed six (6) feet in height; and
(3)
the additional height of a proposed wall, hedge or fence will not obscure in whole or in part an existing view or vista to any landmark, natural area, or waterbody from any window or door in a residential unit on an adjoining parcel of land; and
(4)
proposed walls or fences shall be:
(A)
articulated to avoid the appearance of a "blank wall" when viewed from adjoining property, or
(B)
landscaped with landscaping that is at least three (3) feet in height at time of planting, located along the length of the wall between the wall and the adjoining property, accompanied by specific provision for the maintenance of the landscaping, such as but not limited to, an agreement from the landowner regarding its maintenance in recordable form from the adjoining property owner, or
(C)
where facing a public right-of-way, set back at least two and one-half (2-½) feet from the right-of-way line and extensively landscaped with shrubs of a minimum of three (3) feet in height when measured immediately after planting, which will form a continuous, unbroken, solid, visual screen within one (1) year after time of planting; hedges of a minimum of three (3) feet in height immediately after planting, which will form a continuous, unbroken, solid, visual screen within one (1) year after time of planting; and/or climbing vines of a minimum of thirty-six (36) inches in height immediately after planting; and
(5)
proposed fences shall be constructed or installed so that the "unfinished" side is directed inward toward the center of the parcel proposed for alternative development; and
(6)
proposed fences are constructed of durable materials and are decorative; and
(7)
proposed fences in the front building line are not comprised of chain link or other wire mesh; and
(8)
safe sight distance triangles are maintained pursuant to this Code.
(e)
Notwithstanding the foregoing, no proposed alternative development shall be approved upon demonstration that the proposed alternative development:
(1)
will result in a significant diminution of the value of property in the immediate vicinity; or
(2)
will have substantial negative impact on public safety due to unsafe automobile movements, heightened vehicular-pedestrian conflicts, or heightened risk of fire; or
(3)
will result in a materially greater adverse impact on public services and facilities than the impact that would result from development of the same parcel pursuant to the underlying district regulations.
(f)
Proposed alternative development under this subsection shall provide additional amenities or buffering to mitigate the impacts of the development as approved, where the amenities or buffering expressly required by this subsection are insufficient to mitigate the impacts of the development. The purpose of the amenities or buffering elements shall be to preserve and protect the quality of life of the residents of the approved development and the immediate vicinity in a manner comparable to that ensured by the underlying district regulations. Examples of such amenities include but are not limited to: active or passive recreational facilities, common open space, additional trees or landscaping, convenient covered bus stops or pick-up areas for transportation services, sidewalks (including improvements, linkages, or additional width), bicycle paths, buffer areas or berms, street furniture, undergrounding of utility lines, and decorative street lighting. In determining which amenities or buffering elements are appropriate for a proposed development, the following shall be considered:
(A)
the types of needs of the residents of the parcel proposed for development and the immediate vicinity that would likely be occasioned by the development, including, but not limited to, recreational, open space, transportation, aesthetic amenities, and buffering from adverse impacts; and
(B)
the proportionality between the impacts on residents of the proposed alternative development and the immediate vicinity and the amenities or buffering required. For example, an increase in the lot area coverage for numerous lots may warrant the provision of additional common open space. A reduction in a particular lot's interior side setback may warrant the provision of additional landscaping.
(15.1)
Alternative Site Development Option for Three-unit or Four-unit Apartment House, Multiple-Family Apartment House Use and Multiple-Family Housing Developments. This subsection provides for the establishment of an alternative site development option, after public hearing, for three-unit or four-unit apartment house use, multiple-family apartment house use and multiple-family housing developments, when such uses are permitted by the applicable district regulations, in the RU-3, RU-3M, RU-4L, RU-4M, RU-4, RU-4A, and RU-5 zoning districts, in accordance with the standards established herein. In considering any application for approval hereunder, the Community Zoning Appeals Board shall consider the same subject to approval of a site plan or such other plans as necessary to demonstrate compliance with the standards herein.
(a)
Purpose. The purpose of this subsection is to create objective standards to regulate the site-specific development of three-unit or four-unit apartment house use, multiple-family apartment house use and multiple-family housing development uses in specified zoning districts. The standards provided in this subsection are alternatives to the generalized standards contained in regulations governing the specified zoning districts. The site development standards permit alternative patterns of site development in accordance with the Comprehensive Development Master Plan ("CDMP") where the public interest served by the underlying district regulations and CDMP will be served, and the objectives of the creative urban design, urban infill development and redevelopment, or the preservation and enhancement of property values will be promoted, as demonstrated by the proposed alternative development's compliance with the standards of this subsection. A zoning application for development in compliance with the alternative standards shall be approved upon demonstration at public hearing that the proposed development is in compliance with the applicable alternative standards and does not contravene the enumerated public interest standards established herein.
(b)
For the purposes of this subsection, the following terms shall have the following meanings:
"Common open space" means that portion of a parcel of land which is not covered with a building and is open to the sky and may include, except as otherwise restricted by the regulations governing the specified zoning district, patios, limited roof overhangs, screened enclosures with screened roofs, open trellises, pedestrian walkways and sitting areas, shuffle board recreational areas, swimming pools, tennis courts, landscaped areas, decks, lakes, entrance features, accessory buildings related to active or passive recreational uses, golf courses, similar open space amenities on roof decks and other above-grade surfaces, and ingress and egress drives not exceeding the maximum width required to serve the parking area.
"Applicable district regulations" means the site development regulations of the particular zoning district in which the proposed alternative development is located or the requirements, limitations and restrictions applicable to the particular type of proposed alternative development such as setbacks, lot area and frontage, lot coverage, floor area ratio, common open space, private open space, structure height and densities.
(c)
Setbacks for a three-unit or four-unit apartment house use, multiple-family apartment house use or multiple-family housing development shall be approved after public hearing upon demonstration of the following:
(1)
the character and design of the proposed alternative development will not result in a material diminution of the privacy of adjoining property; and
(2)
the proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity, taking into account existing structures and open space; and
(3)
the proposed alternative development will not reduce the amount of common open space on the parcel proposed for alternative development by less than 20% of the open space percentage required by the applicable district regulations; and
(4)
any area of shadow cast by the proposed alternative development upon an adjoining parcel of land during daylight hours will be no larger than would be cast by a structure(s) constructed, pursuant to the underlying district regulations, or will have no more than a de minimus impact on the use and enjoyment of the adjoining parcel of land; and
(5)
the proposed alternative development will not involve the installation or operation of any mechanical equipment closer to the adjoining parcel of land than any other portion of the proposed alternative development, unless such equipment is located within an enclosed, soundproofing structure and if located on the roof of such an alternative development shall screened from ground view and from view at the level in which the installations are located, and shall be designed as an integral part of and harmonious with the building design; and
(6)
the proposed alternative development will not involve any outdoor lighting fixture that casts light on an adjoining parcel of land at an intensity greater than permitted by this Code; and
(7)
the architectural design, scale, mass, and building materials of any proposed structure(s) or addition(s) are aesthetically harmonious with that of other existing or proposed structure(s) or building(s) on the parcel proposed for alternative development; and
(8)
the wall(s) of any building within a setback area required by the applicable district regulations shall be improved with architectural details and treatments that avoid the appearance of a "blank wall"; and
(9)
the proposed alternative development will not result in the destruction or removal of mature trees within a setback required by the underlying district regulations, with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the same side of the lot, parcel or tract; and
(10)
any windows or doors in any building(s) to be located within an interior side setback required by the applicable district regulations shall be designed and located so that they are not aligned directly across from facing windows or doors on buildings located on an adjoining parcel of land; and
(11)
total lot coverage shall not be increased by more than twenty percent (20%) of the lot coverage permitted by the applicable district regulations; and
(12)
the area within an interior side setback required by the applicable district regulations located behind the front building line will not be used for off-street parking except:
(A)
in any parking garage where the garage door or entrance(s) or exit(s) is located so that it is not aligned directly across from facing windows or doors on buildings located on an adjoining parcel of land; or
(B)
if the off-street parking is buffered from property that abuts the setback area by a solid wall at least six (6) feet in height along the area of pavement and parking, with either:
(i)
articulation to avoid the appearance of a "blank wall" when viewed from the adjoining property, or
(ii)
landscaping that is at least three (3) feet in height at time of planting, located along the length of the wall between the wall and the adjoining property, accompanied by specific provision for the maintenance of the landscaping, such as but not limited to, an agreement regarding its maintenance in recordable form from the adjoining landowner; and
(13)
any structure(s) within an interior side setback required by the applicable district regulations:
(A)
is screened from adjoining property by landscape material of sufficient size and composition to obscure at least sixty percent (60%) of the proposed alternative development to a height of the lower fourteen (14) feet of such structure(s) at time of planting; or
(B)
is screened from adjoining property by an opaque fence or wall at least six (6) feet in height that meets the standards set forth in paragraph (f) herein; and
(14)
any proposed alternative development not attached to a principal building(s), except canopy carports, is located behind the front building line; and
(15)
any structure(s) not attached to a principal building(s) and proposed to be located within a setback required by the applicable district regulations shall be separated from any other structure(s) by at least five (5) feet; and
(16)
when a principal building(s) is proposed to be located within a setback required by the applicable district regulations, any enclosed portion of the upper floor of such building shall not extend beyond the first floor of such building within the setback; and
(17)
the eighteen (18) inch distance between any swimming pool and any wall or enclosure required by this Code is maintained; and
(18)
safe sight distance triangles shall be maintained as required by this Code; and
(19)
the parcel proposed for alternative development will continue to provide on-site parking as required by this Code; and
(20)
the parcel proposed for alternative development shall satisfy applicable district regulations or, if applicable, prior zoning actions for similar uses issued prior to the effective date of this ordinance (May 16, 2003), regulating setbacks, lot area and frontage, lot coverage, floor area ratio, common open space, private open space, structure height and densities; and
(21)
the proposed development will meet the following:
(A)
interior side setbacks shall not be reduced by more than twenty-five percent (25%) of the setbacks required by the applicable district regulations, except that no such alternative interior side setback shall be permitted from an interior side property line adjoining lands approved or developed for single-family or duplex residential use or designated for Low Density, Agriculture or Open Land on the Land Use Plan map of the Comprehensive Development Master Plan;
(B)
side street setbacks shall not be reduced by more than twenty-five percent (25%) of the setbacks required by the applicable district regulations;
(C)
interior side setbacks for active recreational uses shall not be reduced by more than 25% of the setbacks required by the applicable district regulations, except that no such alternative interior side setback shall be permitted from any interior side property line adjoining lands approved or developed for single-family or duplex residential use or designated for Low Density, Agriculture or Open Land on the Land Use Plan map of the Comprehensive Development Master Plan;
(D)
front setbacks shall not be reduced by more than twenty-five percent (25%) of the setbacks required by the applicable district regulations;
(E)
rear setbacks shall not be reduced by more than twenty-five percent (25%) required by the applicable district regulations, except that no such alternative rear setback shall be permitted from a rear property line adjoining lands developed for single-family or duplex residential use or designated for Low Density, Agriculture or Open Land on the Land Use Plan map of the CDMP; and
(F)
setbacks between principal building(s) shall not be reduced by more than twenty-five percent (25%) of the setback required by the applicable district regulations.
(d)
A lot coverage or floor area ratio for a three-unit or four-unit apartment house use, multiple-family apartment house use or multiple-family housing development shall be approved upon demonstration of the following:
(1)
total lot coverage or floor area ratio shall not be increased by more than twenty percent (20%) of the lot coverage and floor area ratio permitted by the applicable district regulations; and
(2)
the proposed alternative development will not result in the destruction or removal of mature trees on the lot with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the lot; and
(3)
the increase in lot coverage or floor area ratio will not result in principal building(s) with an architectural design, scale, mass or building materials that are not aesthetically harmonious with that of other existing or proposed structures in the immediate vicinity; and
(4)
the proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity.
(e)
Common open space for a multiple-family apartment house use or multiple-family housing development shall be approved upon demonstration of the following:
(1)
common open space shall not be decreased by more than twenty percent (10%) of the common open space required by the applicable district regulations; and
(2)
the proposed alternative development will not result in the destruction or removal of mature trees on the lot with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the lot; and
(3)
the common open space provided shall be used to shade and cool, direct wind movements, enhance architectural features, relate structure design to site, visually screen non-compatible uses and block noise generated by major roadways and intense use areas; and
(4)
the common open space provided shall relate to any natural characteristics in such a way as to preserve and enhance their scenic and functional qualities to the fullest extent possible; and
(5)
the proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity.
(f)
The lot area and frontage for a three-unit or four-unit apartment house use, multiple-family apartment house use or multiple-family housing development shall be approved upon demonstration of at least one of the following:
(1)
the proposed lot area and lot frontage will permit the development or redevelopment of a lot, parcel or tract of land where such development would not otherwise be permitted by the applicable district regulations due to the size or configuration of the parcel proposed for alternative development, provided that:
(A)
the lot, parcel or tract is under lawful separate ownership from any contiguous property; and
(B)
the proposed alternative development will not result in the further subdivision of land; and
(C)
the size and dimensions of the lot, parcel or tract are sufficient to provide all setbacks required by the underlying district regulations; and
(D)
the lot area is not less than ninety percent (90%) of the minimum lot area required by the applicable district regulations; and
(E)
the proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity; and
(F)
the parcel proposed for alternative development does not adjoin or lie adjacent to AU or GU zoned lands, nor lands designated for Low Density, Agricultural or Open Land under the Land Use Plan map of the Comprehensive Development Master Plan; and
(G)
the lot frontage dimension is not less than ninety percent (90%) of the minimum lot frontage required by the applicable district regulations, except that the frontage dimension of a flag-lot, parcel or tract shall be permitted to be reduced to the minimum width necessary to allow vehicular access as determined by the County; and
(H)
the resultant lot frontage provides vehicular ingress and egress to all resulting lots, parcels or tracts, including on-site access to emergency equipment.
(2)
the proposed alternative development will result in open space, community design, amenities or preservation of natural resources that enhances the function or aesthetic character of the immediate vicinity in a manner not otherwise achievable through application of the applicable district regulations, provided that:
(A)
the density of the proposed alternative development does not exceed that permitted by the applicable district regulations; and
(B)
the size and dimensions of each lot, parcel or tract in the proposed alternative development are sufficient to provide all setbacks required by the applicable district regulations, or, if applicable, any prior zoning actions for similar uses issued prior to the effective date of this ordinance (May 16, 2003); and
(C)
the area of each lot, parcel or tract is not less than eighty percent (80%) of the area required by the applicable district regulations; and
(D)
the proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity; and
(E)
the parcel proposed for alternative development does not adjoin or lie adjacent to AU or GU zoned lands, nor lands designated for Low Density, Agricultural or Open Land under the Land Use Plan map of the Comprehensive Development Master Plan; and
(F)
the resultant lot frontage provides vehicular ingress and egress to all resulting lots, parcels or tracts, including on-site access to emergency equipment.
(3)
the proposed lot area and frontage is such that:
(A)
the proposed alternative development will not result in the creation of more than two (2) lots, parcels or tracts; and
(B)
the size and dimensions of each lot, parcel or tract are sufficient to provide all setbacks required by the applicable district regulations; and
(C)
no lot area shall be less than the smaller of:
(i)
ninety percent (90%) of the lot area required by the applicable district regulations; or
(ii)
the average area of the developed lots, parcels or tracts in the immediate vicinity within the same zoning district; and
(D)
the proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity; and
(E)
the parcel proposed for alternative development does not adjoin or lie adjacent to AU or GU zoned lands, nor lands designated for Low Density, Agricultural or Open Land under the Land Use Plan map of the Comprehensive Development Master Plan; and
(F)
the resultant lot frontage provides vehicular ingress and egress to all resulting lots, parcels or tracts, including on-site access to emergency equipment.
(g)
A lot coverage or floor area ratio for a three-unit or four-unit apartment house use, multiple-family apartment house use or multiple-family housing development shall be approved upon demonstration of the following:
(1)
total lot coverage or floor area ratio shall not be increased by more than twenty percent (20%) of the lot coverage and floor area ratio permitted by the applicable district regulations; and
(2)
the proposed alternative development will not result in the destruction or removal of mature trees on the lot with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the lot; and
(3)
the increase in lot coverage or floor area ratio will not result in principal building(s) with an architectural design, scale, mass or building materials that are not aesthetically harmonious with that of other existing or proposed structures in the immediate vicinity; and
(4)
the proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity.
(h)
An alternative maximum height of walls, hedges or fences for a three-unit or four-unit apartment house use, multiple-family apartment house use or multiple-family housing development shall be approved upon demonstration of the following:
(1)
no wall, hedge or fence shall exceed eight (8) feet in height; and
(2)
no wall, hedge or fence located in a front or side street setback required by the applicable district regulations shall exceed six (6) feet in height; and
(3)
the additional height of a proposed wall, hedge or fence will not obscure in whole or in part an existing view or vista to any landmark, natural area, natural feature of the site such as a lake or golf course, or waterbody from any window or door in a residential dwelling unit on an adjoining parcel of land; and
(4)
proposed walls or fences shall be:
(A)
articulated to avoid the appearance of a "blank wall" when viewed from adjoining property, or
(B)
landscaped with landscaping that is at least three (3) feet in height at time of planting, located along the length of the wall between the wall and the adjoining property, accompanied by specific provision for the maintenance of the landscaping, such as but not limited to, an agreement from the landowner regarding its maintenance in recordable form from the adjoining property owner, or
(C)
where facing a public right-of-way, set back at least two and one-half (2-½) feet from the right-of-way line and extensively landscaped with shrubs of a minimum of three (3) feet in height when measured immediately after planting, which will form a continuous, unbroken, solid, visual screen within one (1) year after time of planting; hedges of a minimum of three (3) feet in height immediately after planting, which will form a continuous, unbroken, solid, visual screen within one (1) year after time of planting; and/or climbing vines of a minimum of thirty-six (36) inches in height immediately after planting; and
(5)
proposed fences shall be constructed or installed so that the sides are "finished" in accordance with the applicable regulations; and
(6)
proposed fences are constructed of durable materials and are decorative; and
(7)
proposed fences in the front building line are not comprised of chain link or other wire mesh; and
(8)
safe sight distance triangles are maintained pursuant to this Code.
(i)
Notwithstanding the foregoing, no proposed alternative development shall be approved upon demonstration that the proposed alternative development:
(1)
will result in a significant diminution of the value of property in the immediate vicinity; or
(2)
will have substantial negative impact on public safety due to unsafe automobile movements, heightened vehicular-pedestrian conflicts, or heightened risk of fire; or
(3)
will result in a materially greater adverse impact on public services and facilities than the impact that would result from development of the same parcel pursuant to the underlying district regulations; or
(4)
will combine severable use rights obtained pursuant to Chapter 33B of this Code in conjunction with the approval sought hereunder so as to exceed the limitations imposed by Section 33B-45 of this Code.
(j)
Proposed alternative development under this subsection shall provide additional amenities or buffering to mitigate the impacts of the development as approved, where the amenities or buffering expressly required by this subsection are insufficient to mitigate the impacts of the development. The purpose of the amenities or buffering elements shall be to preserve and protect the quality of life of the residents of the approved development and the immediate vicinity in a manner comparable to that ensured by the underlying district regulations. Examples of such amenities include but are not limited to: active or passive recreational facilities, common open space, additional trees or landscaping, convenient covered bus stops or pick-up areas for transportation services, sidewalks (including improvements, linkages, or additional width), bicycle paths, buffer areas or berms, street furniture, undergrounding of utility lines, and decorative street lighting. In determining which amenities or buffering elements are appropriate for a proposed development, the following shall be considered:
(A)
the types of needs of the residents of the parcel proposed for development and the immediate vicinity that would likely be occasioned by the development, including, but not limited to, recreational, open space, transportation, aesthetic amenities, and buffering from adverse impacts; and
(B)
the proportionality between the impacts on residents of the proposed alternative development and the immediate vicinity and the amenities or buffering required. For example, a reduction in lot area for numerous lots, parcels or tracts may warrant the provision of additional common open space. A reduction in a particular lot, parcel, or tract's interior side setback may warrant the provision of additional landscaping.
(16)
Alternative Site Development Option for Buildings and Structures in the BU Zoning Districts. This subsection provides for the establishment of an alternative site development option, after public hearing, for buildings and structures permitted by the underlying district regulations, except residential buildings and structures and religious facilities, in the BU-1, BU-1A, BU-2, and BU-3 zoning districts, in accordance with the standards established herein. In considering any application for approval hereunder, the Community Zoning Appeals Board shall consider the same subject to approval of a site plan or such other plans as necessary to demonstrate compliance with the standards herein.
(a)
Purpose. The purpose of this subsection is to create objective standards to regulate the site-specific development of buildings and structures, except residential buildings and structures and religious facilities, in specified BU zoning districts. The standards provided in this subsection are alternatives to the generalized standards contained in regulations governing the specified zoning districts. The site development standards permit alternative patterns of site development in accordance with the Comprehensive Development Master Plan ("CDMP") where the public interest served by the underlying district regulations and CDMP will be served, and including the objectives of creative urban design, the Guidelines for Urban Form, landscaping and redevelopment opportunities, or the preservation and enhancement of property values will be promoted, as demonstrated by the proposed alternative development's compliance with the standards of this subsection. A zoning application for development in compliance with the alternative standards shall be approved upon demonstration at public hearing that the proposed development is in compliance with the applicable alternative standards and does not contravene the enumerated public interest standards established herein.
(b)
For the purposes of this subsection, the following terms shall have the following meanings:
"Discordant Use" means adjacent land uses which
1)
have a different zoning district prefix, or
2)
contain an existing or approved use which is otherwise allowable as of right in a different zoning district prefix.
(c)
Setbacks for a principal or accessory building or structure shall be approved after public hearing upon demonstration of the following:
(1)
the character and design of the proposed alternative development will not result in a material diminution of the privacy of adjoining property; and
(2)
the proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity, taking into account existing structures and open space; and
(3)
the proposed alternative development will not reduce the amount of open space on the parcel proposed for alternative development by more than 20% of the landscaped open space percentage required by the applicable district regulations; and
(4)
any area of shadow cast by the proposed alternative development upon an adjoining property will be no larger than would be cast by a structure constructed pursuant to the underlying district regulations, or will have no more than a de minimus impact on the use and enjoyment of the adjoining parcel of land; and
(5)
the proposed alternative development will not involve the installation or operation of any mechanical equipment closer to the adjoining parcel of land than any other portion of the proposed alternative development, unless such equipment is located within an enclosed, soundproofed structure and if located on the roof of such an alternative development shall be screened from ground view and from view at the level in which the installations are located, and shall be designed as an integral part of and harmonious with the building design; and
(6)
the proposed alternative development will not involve any outdoor lighting fixture that casts light on an adjoining parcel of land at an intensity greater than permitted by this Code; and
(7)
the architectural design, scale, mass, and building materials of any proposed structure(s) or addition(s) are aesthetically harmonious with that of other existing or proposed structure(s) or building(s) on the parcel proposed for alternative development; and
(8)
the wall(s) of any building within a front, side street or double frontage setback area or within a setback area adjacent to a discordant use, required by the underlying district regulations, shall be improved with architectural details and treatments that avoid the appearance of a "blank wall"; and
(9)
the proposed alternative development will not result in the destruction or removal of mature trees within a setback required by the underlying district regulations, with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the same side of the lot, parcel or tract; and
(10)
any windows or doors in any building(s) to be located within an interior side or rear setback required by the underlying district regulations shall be designed and located so that they are not aligned directly across from facing windows or doors on building(s) of a discordant use located on an adjoining parcel of land; and
(11)
total lot coverage shall not be increased by more than ten percent (10%) of the lot coverage permitted by the underlying district regulations; or a total floor area ratio shall not be increased by more than ten percent (10%) of the floor area ratio permitted by the underlying district regulations; and
(12)
the area within an interior side or rear setback required by the underlying district regulations located adjacent to a discordant use will not be used for off-street parking except:
(A)
in an enclosed garage where the garage door is located so that it is not aligned directly across from facing windows or doors on buildings of a discordant use located on an adjoining parcel of land; or
(B)
if the off-street parking is buffered from property that abuts the setback area by a solid wall at least six (6) feet in height along the area of pavement and parking, with either:
(i)
articulation to avoid the appearance of a "blank wall" when viewed from the adjoining property, or
(ii)
landscaping that is at least three (3) feet in height at time of planting, located along the length of the wall between the wall and the adjoining property, accompanied by specific provision for the maintenance of the landscaping, such as but not limited to, an agreement regarding its maintenance in recordable form from the adjoining landowner; and
(13)
any structure within an interior side setback required by the underlying district regulations:
(A)
is screened from adjoining property by landscape material of sufficient size and composition to obscure at least eighty percent (80%) (if located adjoining or adjacent to a discordant use) of the proposed alternative development to a height of the lower fourteen (14) feet of such structure(s) at time of planting; or
(B)
is screened from adjoining property by an opaque fence or wall at least eight (8) feet, six (6) feet if located adjoining or adjacent to a discordant use, in height that meets the standards set forth in paragraph (g) herein; and
(14)
any structure not attached to a principal building and proposed to be located within a setback required by the underlying district regulations shall be separated from any other structure by at least 10 feet or the minimum distance to comply with fire safety standards, whichever is greater; and
(15)
when a principal or accessory building is proposed to be located within a setback required by the underlying district regulations, any enclosed portion of the upper floor of such building shall not extend beyond the first floor of such building within the setback; and
(16)
safe sight distance triangles shall be maintained as required by this Code; and
(17)
the parcel proposed for alternative development shall continue to provide the required number of on-site parking spaces as required by this Code, except that off-site parking spaces may be provided in accordance with Section 33-128 of this Code; and
(18)
the parcel proposed for alternative development shall satisfy all other applicable underlying district regulations or, if applicable, prior zoning actions issued prior to the effective date of this ordinance (May 2, 2003), regulating setbacks, lot area and lot frontage, lot coverage, floor area ratio, landscaped open space and structure height; and
(19)
the proposed development will meet the following:
(A)
interior side setbacks shall not be reduced by more than fifty percent (50%) of the side setbacks required by the underlying district regulations, or the minimum distance required to comply with fire safety standards, whichever is greater when the adjoining parcel of land is a BU or IU district; interior side setbacks shall not be reduced by more than twenty-five (25%) percent of the interior side setbacks required by the underlying district regulations when the adjoining parcel of land allows a discordant use.
(B)
side street setbacks shall not be reduced by more than twenty-five (25%) of the underlying district regulations;
(C)
front setbacks (including double-frontage setbacks) shall not be reduced by more than twenty-five (25%) percent of the setbacks required by the underlying district regulations; and
(D)
rear setbacks shall not be reduced below fifty (50%) percent of the rear setback required by the underlying district regulations, or the minimum distance required to comply with fire safety standards, whichever is greater, when the adjoining parcel of land is a BU or IU district; rear setbacks shall not be reduced below twenty-five (25%) percent of the rear setback required by the underlying district regulations when the adjoining parcel of land allows a discordant use.
(E)
setbacks between building(s) shall not be reduced below 10 feet, or the minimum distance required to comply with fire safety standards, whichever is greater.
(d)
An alternative lot coverage or floor area ratio for a building shall be approved upon demonstration of the following:
(1)
total lot coverage or floor area ratio shall not be increased by more than ten percent (10%) of the lot coverage or floor area permitted by the underlying district regulations; and
(2)
the proposed alternative development will not result in the destruction or removal of mature trees on the lot with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the lot; and
(3)
the increase in lot coverage or floor area ratio will not result in a principal or accessory building(s) with an architectural design, scale, mass or building materials that are not aesthetically harmonious with that of other existing or proposed structures in the immediate vicinity; and
(4)
the proposed alternative development will not result in an obvious departure from the aesthetic character of in the immediate vicinity.
(e)
An alternative amount of landscaped open space shall be approved upon demonstration of the following:
(1)
landscaped open space shall not be decreased by more than ten percent (10%) of the landscaped open space required by the applicable district regulations; and
(2)
the proposed alternative development will not result in the destruction or removal of mature trees on the lot with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the lot; and
(3)
the landscaped open space provided shall be used to shade and cool, direct wind movements, enhance architectural features, relate structure design to site, visually screen non-compatible uses and block noise generated by major roadways and intense use areas; and
(4)
the landscaped open space provided shall relate to any natural characteristics in such a way as to preserve and enhance their scenic and functional qualities; and
(5)
the proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity, and
(6)
the installation of the required percentage of landscaped parcel containing a previously approved and existing building, would necessitate a decrease in the number of parking spaces provided, or necessitate a decrease in the square footage of an existing building on the site; and
(7)
that 20% more lot or street trees are provided on the site or within the adjacent rights-of-way, respectively; said trees to be of a type and size as required by Chapter 18A; and
(8)
that an additional number of shrubs shall be provided commensurate with the trees in (7) above, said shrubs to be of a number, type and size as required by Chapter 18A.
(f)
An alternative lot area and frontage shall be approved upon demonstration of at least one of the following:
(1)
the proposed lot area and frontage shall permit the development or redevelopment of a structure(s) on a lot, parcel or tract of land where such structure(s) would not otherwise be permitted by the underlying district regulations due to the size or configuration of the parcel proposed for alternative development, provided that:
(A)
the lot, parcel or tract is under lawful separate ownership from any contiguous property; and
(B)
the proposed alternative development will not result in the further subdivision of land; and
(C)
the size and dimensions of the lot, parcel or tract are sufficient to provide all setbacks required by the underlying district regulations; and
(D)
the area of the lot, parcel or tract is not less than ninety percent (90%) of the minimum lot area required by the underlying district regulations; and
(E)
the proposed alternative development does not departure from the aesthetic character of the immediate vicinity; and
(F)
the lot, parcel or tract proposed for alternative development does not adjoin or lie adjacent to a discordant use; and
(G)
the frontage dimension of the lot, parcel or tract is not less than ninety percent (90%) of the minimum frontage required by the applicable district regulations, except that the frontage dimension of a flag-lot, parcel or tract shall be permitted to be reduced to the minimum width necessary to allow vehicular access as determined by the County; and
(H)
the resultant frontage dimension of the lot, parcel or tract provides vehicular ingress and egress to all resulting lots, parcels or tracts, including on-site access to emergency equipment.
(2)
the proposed alternative development results in landscaped open space, community design, amenities or preservation of natural resources that enhances the function or aesthetic character of the immediate vicinity in a manner not otherwise achievable through application of the applicable district regulations, provided that:
(A)
the number of lots of the proposed alternative development does not exceed that normally permitted by the lot area dimensions of the underlying district regulations; and
(B)
the size and dimensions of each lot, parcel or tract development are sufficient to provide all setbacks required by the underlying district regulations, or, if applicable, any prior zoning actions for similar uses issued prior to the effective date of this ordinance (May 2, 2003); and
(C)
the area of each lot, parcel or tract is not less than eighty percent (80%) of the area required by the applicable district regulations; and
(D)
the proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity; and
(E)
the lot, parcel or tract proposed for alternative development does not adjoin or lie adjacent to a discordant use; and
(F)
the resultant frontage of the lot, parcel or tract provides vehicular ingress and egress to all resulting lots, parcels or tracts, including on-site access to emergency equipment.
(3)
the proposed lot area and frontage is such that:
(A)
the proposed alternative development will not result in the creation of more than two (2) lots, parcels or tracts; and
(B)
the size and dimensions of each lot, parcel or tract are sufficient to provide all setbacks required by the applicable district regulations; and
(C)
no lot area shall be less than the smaller of:
(i)
ninety percent (90%) of the lot area required by the applicable district regulations; or
(ii)
the average area of the developed lots, parcels or tracts in the immediate vicinity within the same zoning district; and
(D)
the proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity; and
(E)
the parcel proposed for alternative development does not adjoin or lie adjacent to a discordant use; and
(F)
the resultant frontage provides vehicular ingress and egress to all resulting lots, parcels or tracts, including on-site access to emergency equipment.
(g)
An alternative maximum height of walls, hedges or fences shall be approved upon demonstration of the following:
(1)
no wall, hedge or fence shall exceed ten (10) feet in height when adjoining BU or IU zoned lot or parcel; no wall, hedge or fence shall exceed eight (8) feet when adjoining a discordant use, and
(2)
no wall, hedge or fence located in a front or side street setback required by the applicable district regulations shall exceed six (6) feet in height; and
(3)
the additional height of a proposed wall, hedge or fence will not obscure in whole or in part an existing view or vista to any landmark, natural area, or waterbody from any window or door of a building on an adjoining discordant use; and
(4)
proposed walls or fences shall be:
(A)
articulated to avoid the appearance of a "blank wall" when viewed from adjoining property, or
(B)
improved with landscaping material that is at least three (3) feet in height at time of planting, located along the length of the wall between the wall and the adjoining property, accompanied by specific provision for the maintenance of the landscaping, such as but not limited to, an agreement from the landowner regarding its maintenance in recordable form from the adjoining property owner, or
(C)
where facing a public right-of-way, set back at least two and one-half (2-½) feet from the right-of-way line and extensively landscaped with shrubs of a minimum of three (3) feet in height when measured immediately after planting, which will form a continuous, unbroken, solid, visual screen within one (1) year after time of planting; hedges of a minimum of three (3) feet in height immediately after planting, which will form a continuous, unbroken, solid, visual screen within one (1) year after time of planting; and/or climbing vines of a minimum of thirty-six (36) inches in height immediately after planting; and
(5)
proposed fences shall be constructed or installed so that all sides of the fence are "finished" in accordance with the applicable regulations; and
(6)
proposed fences are constructed of durable materials and are decorative; and
(7)
proposed fences are not comprised of chain link or other wire mesh, unless hedges totally screen the fence; and
(8)
safe sight distance triangles are maintained pursuant to this Code.
(h)
An alternative placement of a required perimeter wall setback from the property line(s) of a parcel where said property line adjoins or lies across the street right-of-way from a residential district, shall be approved after public hearing upon demonstration of the following:
(1)
the setback of the wall is the minimum distance necessary so as not to encroach into an existing utility or landscape easement(s); and
(2)
that visual screening for the wall by way of landscaping is included in the easement area to prevent graffiti vandalism in a manner provided by this Code; and
(3)
that a suitable mechanism for maintenance of the landscaped area by the property owner, tenant association or similar association be provided in the form of a covenant running with the land.
(i)
An alternative opening in a wall otherwise required by this Code to be a solid, unbroken barrier when a parcel adjoins or lies adjacent to a residential district, shall be approved after public hearing upon demonstration of the following:
(1)
the width of the wall opening is the minimum width necessary for pedestrians to access the parcel from adjoining or adjacent residential development(s); and
(2)
the wall opening is immediately adjoining or adjacent to a residential lot, parcel or tract which is restricted in use as common open space.
(j)
An alternative reduction in the number of required parking spaces shall be approved after public hearing upon demonstration of the following:
(1)
the alternative reduction of the number of required parking spaces does not apply to parking spaces for the disabled, parking spaces for persons transporting small children, nor to bicycle racks or other means of bicycle storage; and either:
(2)
the total number of required parking spaces is not reduced below ten percent (10%); and
(A)
the lot, parcel or tract is located within six hundred and sixty (660) feet of an existing transportation corridor such as a Major Roadway identified on the Land Use Plan (LUP) map, within one-quarter (¼) mile from existing rail transit stations or existing express busway stops; or
(B)
the hours of operation of multiple commercial uses within the development vary and do not overlap and a recordable agreement is provided which restricts the hours of operation; or
(3)
the alternative development involves a mixed-use project in which the number of off-street parking spaces is calculated by applying the Urban Land Institute (ULI) Shared Parking Methodology to the required number of parking spaces.
(k)
Notwithstanding the foregoing, no proposed alternative development shall be approved upon demonstration that the proposed alternative development:
(1)
will result in a significant diminution of the value of property in the immediate vicinity; or
(2)
will have substantial negative impact on public safety due to unsafe automobile movements, heightened vehicular-pedestrian conflicts, or heightened risk of fire; or
(3)
will result in a materially greater adverse impact on public services and facilities than the impact that would result from development of the same parcel pursuant to the underlying district regulations.
(l)
Proposed alternative development under this subsection shall provide additional amenities or buffering to mitigate the impacts of the development as approved, where the amenities or buffering expressly required by this subsection are insufficient to mitigate the impacts of the development. The purpose of the amenities or buffering elements shall be to preserve and protect the economic viability of any commercial enterprises proposed within the approved development and the quality of life of residents and other owners of property in the immediate vicinity in a manner comparable to that ensured by the underlying district regulations. Examples of such amenities include but are not limited to: active or passive recreational facilities, landscaped open space over and above that normally required by the code, additional trees or landscaping materials, the inclusion of residential use(s), convenient pedestrian connection(s) to adjacent residential development(s), convenient covered bus stops or pick-up areas for transportation services, sidewalks (including improvements, linkages, or additional width), bicycle paths, buffer areas or berms, street furniture, undergrounding of utility lines, monument signage (where detached signs are allowed) or limited and cohesive wall signage, and decorative street lighting. In determining which amenities or buffering elements are appropriate, the following shall be considered:
(A)
the types of needs of the residents or other owners immediate vicinity and the needs of the business owners and employees of the parcel proposed for development that would likely be occasioned by the development, including, but not limited to, recreational, open space, transportation, aesthetic amenities, and buffering from adverse impacts; and
(B)
the proportionality between the impacts on the residents or other owners of property of parcel(s) in the immediate vicinity and the amenities or buffering required. For example, a reduction in setbacks for numerous lots or significantly large commercial buildings may warrant the provision of additional landscaped open space.
(17)
Modification or Elimination of Conditions and Covenants After Public Hearing. The Community Zoning Appeals Board shall approve applications to modify or eliminate any condition or part thereof which has been imposed by any zoning action, and to modify or eliminate any restrictive covenants, or parts thereof, accepted at public hearing, upon demonstration at public hearing that the requirements of at least one of the following paragraphs have been met. Upon demonstration that such requirements have been met, an application may be approved as to a portion of the property encumbered by the condition or the restrictive covenant where the condition or restrictive covenant is capable of being applied separately and in full force as to the remaining portion of the property that is not a part of the application, and both the application portion and the remaining portion of the property will be in compliance with all other applicable requirements of prior zoning actions and of this chapter.
I.
Modification or Elimination of Conditions and Covenants Associated with Voluntarily Abandoned Zoning Actions. The Community Zoning Appeals Board shall approve an application to modify or eliminate a condition or part thereof, or a restrictive covenant or part thereof, where it is demonstrated that the condition, restrictive covenant or part thereof was imposed to prevent or mitigate the adverse impacts of a zoning action that has been entirely and voluntarily abandoned, in that:
(A)
the applicant has provided a sworn affidavit stating that the applicant has sufficient title and authority to abandon the development rights under the zoning action for the property for which the modification or elimination is sought to abandon the zoning action and all rights thereunder, and stating that no material changes to the character or use of the land have ever been undertaken pursuant to the zoning action; and
(B)
the development rights granted by the zoning action have been voluntarily abandoned in writing on a form approved by the Director; and
(C)
abandonment of the zoning action will not cause the subject property to fail to comply with any applicable provision of this Code or the Comprehensive Development Master Plan; and
(D)
the zoning action under which the condition or restrictive covenant was imposed or accepted was not a district boundary change.
II.
Modification or Elimination of Conditions and Restrictive Covenants That Are Satisfied or Moot. The Community Zoning Appeals Board shall approve an application to modify or eliminate a condition or part thereof, or a restrictive covenant or part thereof, where it is demonstrated by one of the following that the condition, restrictive covenant or part thereof either is satisfied or is moot:
(A)
Satisfied conditions, covenants, or restrictions. The requirements imposed by a condition, restrictive covenant or part thereof do not create a continuing obligation, and are fully completed or satisfied; and, in the case of a restrictive covenant, any procedural or approval requirement for its modification or elimination is satisfied.
(B)
Moot conditions, covenants, or restrictions. The condition, restrictive covenant or part thereof is moot in that it can no longer serve the purpose for which it was imposed. A condition, restrictive covenant or part thereof in effect for a period of more than five (5) years shall be determined to be moot upon demonstration of one of the four (4) following circumstances:
1.
the purpose of the condition, restrictive covenant or part thereof is apparent from the zoning record of the subject property, including record facts pertaining to the character of the subject property and its immediate vicinity, and the impacts that were projected to be generated by the zoning action at the time the condition or covenant was imposed; and either
(a)
the property subject to the condition or covenant has been developed in a manner or to an extent which does not, and under existing zoning approvals cannot, generate the adverse impacts intended to be prevented or mitigated by the condition or covenant; or
(b)
since the imposition of the condition or covenant, all abutting parcels and the immediate vicinity have been zoned or developed in a manner or to an extent that the impacts previously anticipated or projected to be prevented or mitigated by the condition or restrictive covenant are not, and cannot be, adverse to the abutting parcels or the immediate vicinity.
2.
the purpose of the condition, restrictive covenant or part thereof is not apparent from the zoning record of the subject property, including record facts pertaining to the character of the subject property and its immediate vicinity, and
(a)
the condition, restrictive covenant or part thereof if imposed under current circumstances, would not and could not mitigate or prevent any describable harm or create any describable benefit to the public or to owners or residents of property in the immediate vicinity to a degree that is greater than de minimus ; and
(b)
the condition or restrictive covenant does not include a date of expiration, or
3.
the condition or restrictive covenant for which modification or elimination is sought involves the timing or phasing of development, and:
(a)
the development which is the subject of the condition or restrictive covenant is completed; and
(b)
no enforcement action regarding the condition or restrictive covenant has been initiated.
4.
the condition or restrictive covenant for which modification or elimination is sought involved only the timeliness of filing or recording of a document, and:
(a)
the failure to file or record the document was due to circumstances beyond the control of the applicant, or to excusable neglect; and
(b)
no one is prejudiced by the modification or elimination of the condition or restrictive covenant regarding the timing of the filing or recording; and
(c)
the document has been recorded or filed subsequent to the deadline set by the original application, and accepted by the County.
III.
Modification or Elimination of Conditions and Restrictive Covenants When No New Adverse Impacts Will Result. The Community Zoning Appeals Board shall approve an application to modify or eliminate a condition or part thereof, or a restrictive covenant or part thereof, where the applicant demonstrates that the modification or elimination will not result in a material new adverse impact on the public health, safety, welfare, or aesthetic values, according to the following criteria:
(A)
If the request includes a modification or elimination of conditions or restrictive covenants imposed simultaneously with a district boundary change, the subject property would satisfy all current requirements and standards for a district boundary change to the property's present zoning district without the condition or restrictive covenant, or else the modification or elimination is sought in connection with an application for rezoning to a different district. For purposes of this requirement, new conditions or restrictive covenants may be imposed or proffered to satisfy such requirements and standards; and
(B)
The modification or elimination of the condition, restrictive covenant, or part thereof will not create new adverse impacts. The application will be deemed not to create new adverse impacts upon demonstration of the following:
1.
the modification or elimination will result in an increase of not more than 10% in trips generated above that generated by the approved development, except that trips generated in excess of 10% shall be permitted where completely mitigated by increased capacity constructed since the current development was approved. Trip generation shall be calculated based on the most current methodology applied by the County.
2.
the modification or elimination will result in an increase in projected demand for local parks of no more than 10% or 1/5 acre, whichever is greater, except that demand in excess of 10% or 1/5 acre shall be permitted if there is sufficient capacity of local parks to accommodate the increase in demand created by the modification;
3.
the modification or elimination will result in an increase in demand placed on public stormwater drainage systems of not more than 10%;
4.
the modification or elimination will result in a projected increase in the number of school-age children residing on the subject property of not more than ten percent (10%), or not more than three (3) school-age children, whichever is greater;
5.
the modification or elimination will not result in any increase in potable water, sanitary sewer, or solid waste disposal demand for which adequate capacity is not available, or any change in existing or planned facilities will not affect the level of service of potable water, sanitary sewer, or solid waste disposal;
6.
the modification or elimination will not result in any material increase in the risk of potential for discharge or spillage of pollutants, or generation of carbon monoxide at unsafe levels;
7.
the modification or elimination will not result in any material increase in the potential for damage to jurisdictional wetlands;
8.
the modification or elimination will not result in a reduction in the area under tree canopy of more than 10%;
9.
the modification or elimination will not result in any material increase in the risk of smoke, fire, odors, gases, excessive noise or vibration;
10.
the modification or elimination will result in an increase in building cubic content on the subject property of no more than 10%, or no more than 10% of the median building cubic content on similarly zoned parcels in the immediate vicinity, whichever is larger;
11.
the modification or elimination will not result in a decrease in the features or landscaping that buffer the existing use from properties in the immediate vicinity;
12.
the modification or elimination will not result in any material decrease in the privacy enjoyed by adjoining properties;
13.
the modification or elimination will not result in any material diminution of an existing view or vista to any landmark, natural area, or waterbody from any window or door in any residential unit on an adjoining parcel of land;
14.
the modification or elimination will not result in any material increase in the potential for vehicular-pedestrian conflicts;
15.
the modification or elimination will not result in any material and obvious departure from the aesthetic character of the immediate vicinity, taking into account the architectural design, scale, height, mass and building materials of existing structures, pattern of development and open space;
16.
the modification or elimination will not result in any material increase in the area of shadow, or of light from outdoor lighting, cast onto adjacent parcels;
17.
the modification or elimination will not result in any material change in the manner or hours of operation on the subject property so differing from the similar existing or approved uses in the immediate vicinity that the convenient, safe, peaceful or intended uses of such uses is interrupted or materially diminished;
18.
the modification or elimination will not result in any material change in the density or intensity of use of the subject property so differing from the density or intensity of other existing or approved uses in the immediate vicinity that the subject property would represent an obvious departure from the established development pattern of the immediate vicinity;
19.
the modification or elimination will not result in any material change in the type of use of the subject property so differing from the existing or approved uses in the immediate vicinity that the subject property would represent an obvious departure from the established pattern of use in the immediate vicinity;
20.
the modification or elimination will not result in a use of land that will have a significant adverse impact upon the value of properties in the immediate vicinity; and
21.
the modification or elimination will not result in a material increase in height or volume of open lot uses or facilities, or a material increase in intensity of allowed open lot uses, including, but not limited to, outdoor storage of products, materials or equipment, fleamarkets, carnivals, telecommunications facilities, concrete and asphalt batching plants, landfills and private playgrounds and recreational facilities.
(C)
modification or elimination of the condition, restrictive covenant or part thereof will not result in a use of land that will have a significant adverse impact upon the value of properties in the immediate vicinity; and
(D)
all applicable requirements of the underlying zoning district or if applicable any prior zoning action or administrative action, are satisfied.
IV.
Modification of Conditions and Restrictive Covenants to Extend Timing or Phasing Deadlines. The Community Zoning Appeals Board shall approve an application to modify a condition or part thereof, or a restrictive covenant or part thereof that is related solely to the timing or phasing of development, where the applicant demonstrates that it has been reasonably diligent in fulfilling its obligations under the condition or restrictive covenant, but is unable to complete the obligation within the time set forth in the condition or restrictive covenant, and:
(A)
an increase in time frames, deadlines, or phasing schedules will not result in a change of circumstances which would create a material delay between the approved development and the provision of public facilities and services or other improvements necessary or planned to mitigate the impact of the development; or
(B)
impossibility, force majeure, a non-self-created inability to secure a required right-of-way, actions of another governmental entity, or other similar circumstance beyond the direct control of the applicant or owner prevents adherence to the time frames, deadlines, or phasing schedules set forth in the condition or restrictive covenant sought to be modified.
No extension of timing or phasing shall be approved if it is demonstrated that that the extension of timing or phasing deadlines will substantially diminish property values in the immediate vicinity, will pose a continued risk to human life or safety or to the environment, will constitute a nuisance, and will constitute an obvious and deleterious use adversely and materially impacting the community character, taking into account changes in the immediate vicinity occurring since the condition or restrictive covenant was imposed or accepted.
V.
Modification or Elimination of Conditions and Restrictive Covenants After Public Hearing, Where Public Benefits Are Created or Enhanced to a Level or Degree that Clearly Outweighs Additional New Public Burdens. The Community Zoning Appeals Board shall approve an application to modify or eliminate a condition or part thereof, or a restrictive covenant or part thereof, where demonstratively greater public benefit will result from the modification or elimination than the resulting public burden as measured by the following:
(A)
Approval of the application will result in the provision of public benefits in two (2) or more of the following categories of public benefits:
1.
Enhancement and/or preservation of substantial open space, public parks, environmentally sensitive land, or natural or historic resources in terms of one or more of the following:
(a)
provision of additional on- or off-site open space, configured in such a manner that it provides a public benefit in terms of either public use or improved aesthetics when viewed from public rights-of-way (except where 2 (d) below is relied upon); or
(b)
an increase in the amount of land available for public parks acceptable to the Park and Recreation Department, or in the recreational facilities of public parks; or
(c)
perpetual preservation of "environmentally endangered lands"; or
(d)
perpetual preservation of additional wetlands (which may include, in addition, restoration or enhancement); or
(e)
removal of a use or structure that either has an adverse effect on a wellfield or aquifer recharge area, or that poses a high risk of wellfield contamination, and replacement with a use or structure that significantly lessens the impact or risk; or
(f)
removal, or reduction of the intensity of a use, that results in a substantial reduction of risk of groundwater contamination; or
(g)
preservation of designated historic resources or rehabilitation of contributing historic structures.
2.
A substantial improvement to the character of the immediate vicinity by one or more of the following means:
(a)
elimination or rehabilitation of blighted buildings or other blighting influences; or
(b)
substantial reduction of "sign clutter," where the character of the immediate vicinity is largely defined by an abundance of signage; or
(c)
relocation of utility lines underground, where the character of the immediate vicinity is heavily impacted by overhead utilities; or
(d)
substantial improvements to landscaping or streetscaping (except where 1(a) is relied upon); or
(e)
substantial reduction in excessive noise, smoke, vibration, odors, gases, dust, risk of pollutants, or damage to jurisdictional wetlands.
3.
Elimination of uses that are inappropriately located, by either:
(a)
abandonment and elimination of a lawful existing nonconforming use; or
(b)
elimination of a lawful use or building which, although not legally nonconforming, represents an obvious departure from the established pattern of development or use in the immediate vicinity.
4.
Provision of one or more of the following facilities or services in and for locations in which there is a demonstrated need:
(a)
schools or vocational training facilities; or
(b)
day care services for children or the elderly; or
(c)
a police station or substantion; or
(d)
a fire station; or
(e)
a library; or
(f)
public buildings and facilities; or
(g)
water or sanitary sewer lines.
5.
Direct and specific implementation of adopted land use or community development plans of Miami-Dade County, by:
(a)
implementation of two or more preferred development types or scenarios from the Miami-Dade County Urban Design Manual ; or
(b)
implementation of the "guidelines for urban form" in the Land Use Element of the Comprehensive Development Master Plan; or
(c)
implementation of a portion of the Adopted Action Plan of the Consolidated Plan of the Miami-Dade County Office of Community and Economic Development.
6.
A benefit to the function of the transportation network in the immediate vicinity, in terms of one or more of the following:
(a)
a substantial decrease in trip generation during hours of peak use; or
(b)
an increase in the proportion of pedestrian, bicycle, or transit trips in relation to total daily trips in the immediate vicinity by all modes of transportation as a result of providing multi-modal amenities or mixed-use development; or
(c)
an improvement in the quality, capacity, and function of pedestrian and bicycle circulation systems in the immediate vicinity of the subject property; or
(d)
a reduction in vehicle miles attributable to dwelling units within a one-half (½) mile radius of the subject property; or
(e)
improvements to one or more roadways in the immediate vicinity that increase capacity or improve traffic flow or traffic safety beyond the marginal traffic impacts of the proposed development.
7.
Improvements to the supply of affordable housing, by
(a)
development of affordable housing for very low, low, and moderate income households in a location where the need for such housing has been identified pursuant to the Housing Element of the Comprehensive Development Master Plan or other adopted affordable housing initiatives; or
(b)
rehabilitation or redevelopment of substandard housing units resulting in an increase in the number of very low, low, and moderate income units provided on the site of the rehabilitation or redevelopment.
8.
The creation of 15 or more new permanent jobs.
9.
Substantial improvement to the design of the subject property through improvements in two or more of the following:
(a)
pedestrian, bicycle, or vehicular access and circulation; or
(b)
the design of parking areas; or
(c)
drainage or stormwater retention and treatment; or
(d)
connectivity, by elimination of dead-end, cul-de-sac or similar street types, or elimination of walled-in residential communities, or by providing streets that interconnect within the development and connect to adjacent neighborhoods and rights-of-way.
(B)
Notwithstanding the provisions of the preceding paragraphs, no application will be approved under this subsection if such approval would result in:
1.
a use of land which will have a significant adverse effect upon the value of properties in the immediate vicinity;
2.
community design, architecture, or layout and orientation of buildings, open space, or amenities that is inconsistent with and deleterious to the aesthetic character of the immediate vicinity;
3.
a material change in the density, intensity, or use of the subject property that so differs from the density, intensity, or use of other existing or approved development in the immediate vicinity that the subject property would represent an obvious and significant departure from the established development pattern of the immediate vicinity which has a deleterious effect on its community character;
4.
a substantial degradation of localized traffic patterns or a substantial adverse impact on the roadway network;
5.
unmitigated demands on potable water, sanitary sewer, or stormwater treatment systems which exceed the capacity of those systems; or
6.
a new or continued and substantial risk to human life or safety or to the environment, or a nuisance; or
7.
a material increase in height or volume of open lot uses or facilities, or a material increase in intensity of allowed open lot uses, including, but not limited to, such open lot uses as outdoor storage of products, materials or equipment, fleamarkets, carnivals, telecommunications facilities, concrete and asphalt batching plants, landfills and private playgrounds and recreational facilities;
The Community Zoning Appeals Board shall impose such conditions and requirements in connection with an approval under this subsection as shall prevent or mitigate any resulting adverse impacts to the County or to any aggrieved person who has reasonably, demonstrably and detrimentally relied upon the condition or covenant sought to be modified or eliminated.
VI.
Modification or Elimination of Conditions or Restrictive Covenants After Public Hearing, Where the Conditions or Restrictive Covenants were Accepted or Imposed Simultaneously with a District Boundary Change. The Community Zoning Appeals Board shall approve an application to modify or eliminate a condition or part thereof, or a restrictive covenant or part thereof, which requires development of a specific site plan and which was accepted or imposed simultaneously with a district boundary change, where it is demonstrated that:
(A)
The subject property would satisfy all current requirements and standards for a district boundary change to the property's present zoning district without the condition or restrictive covenant, or else the modification or elimination in sought in connection with an application for rezoning to a different district. For purposes of this requirement, new conditions or restrictive covenants may be imposed or proffered to satisfy such requirements and standards.
(B)
The Community Zoning Appeals Board shall impose such conditions and requirements in connection with an approval under this subsection as shall prevent or mitigate any resulting adverse impacts to the County or to any aggrieved person who has reasonably, demonstrably and detrimentally relied upon the condition or covenant sought to be modified or eliminated.
(C)
Notwithstanding the provisions of the preceding paragraphs, no application will be approved under this subsection if such approval would result in:
1.
a use of land which will have a significant adverse effect upon the value of properties in the immediate vicinity;
2.
community design, architecture, or layout and orientation of buildings, open space, or amenities that is inconsistent with and deleterious to the aesthetic character of the immediate vicinity;
3.
a material change in the density, intensity, or use of the subject property that so differs from the density, intensity, or use of other existing or approved development in the immediate vicinity that the subject property would represent an obvious and significant departure from the established development pattern of the immediate vicinity which has a deleterious effect on its community character;
4.
a substantial degradation of localized traffic patterns or a substantial adverse impact on the roadway network;
5.
unmitigated demands on potable water, sanitary sewer, or stormwater treatment systems which exceed the capacity of those systems; or
6.
a continued and substantial risk to human life or safety or to the environment, or a nuisance.
(18)
Wireless Supported Service Facilities, including Antenna Support Structures. This subsection provides for the establishment of criteria, after public hearing, to hear and grant applications to allow a Wireless Supported Service Facility, including Antenna Support Structures. In considering any application for approval hereunder, the Community Zoning Appeals Board shall consider the same subject to approval of a site plan or such other plans as necessary to demonstrate compliance with the standards herein.
(a)
Purpose. The purpose of this subsection is to create objective standards to regulate Wireless Supported Service Facilities, including Antenna Support Structures. Upon demonstration at public hearing that a zoning application for a Wireless Supported Service Facility, including Antenna Support Structures is in compliance with the standards herein and the underlying district regulations in Section 33-36.2 and does not contravene the enumerated public interest standards established herein, the Wireless Supported Service Facility, including any Antenna Support Structure, shall be approved.
1.
General standards
a.
The approval of the Wireless Support Facility shall not cause the subject property to fail to comply with any portion of this Code or the Comprehensive Development Master Plan.
b.
The proposed Antenna Support Structure and related equipment shall comply with the underlying zoning district standard lot coverage regulations.
c.
The proposed Antenna Support Structure shall not involve any outdoor lighting fixture that casts light on the adjoining parcel of land at an intensity greater than that permitted by Section 33-4.1 of this Code, unless providing safety lighting as required by FCC or FAA regulations.
d.
A non-camouflaged Antenna Support Structure 100 feet in height or less, shall be setback from the property line of any existing residential dwelling and the property line of the nearest residentially zoned property located on a contiguous or adjacent parcel of land under different ownership a distance equal to 110 percent of the height of the Antenna Support Structure.
A non-camouflaged Antenna Support Structure exceeding 100 feet in height shall be setback a minimum of 200 feet from the property line of any existing residential dwelling and the property line of the nearest residentially zoned property located on a contiguous or adjacent parcel of land under different ownership, unless the Antenna Support Structure itself, excluding any Antennas attached thereto for the purposes of wireless communication, is otherwise substantially visually obscured by an intervening structure or landscaping (i.e., wall, building, trees etc.) in which case setback shall be equal to a minimum of 110 percent of the height of the Antenna Support Structure.
A survey, site plan or line of sight analysis illustrating this condition shall be provided by the applicant.
e.
The proposed Wireless Supported Service Facility shall provide adequate parking and loading and provide ingress and egress so that vehicles servicing the facility will not block vehicular and pedestrian traffic on abutting streets.
f.
The applicant's proposed Antenna Support Structure associated with the proposed Wireless Supported Service Facility shall be designed in such a manner that in the event of a structural failure, the failed portion of the Antenna Support Structure shall be totally contained within the parent tract.
g.
Proposed fences have the "unfinished" side, if any, directed inward toward the center of the leased parcel proposed for installation of the Antenna Support Structure and related equipment.
h.
Proposed fences will be constructed of durable materials and will not be comprised of chain link or other wire mesh, unless located in an AU or GU zoning districts.
i.
In the event a wall is used to screen the base of a non-camouflaged Antenna Support Structure or the equipment building structure, the wall shall be articulated to avoid the appearance of a "blank wall" when viewed from the adjoining property residentially zoned and developed under different ownership. In an effort to prevent graffiti vandalism, the following options shall be utilized for walls abutting zoned or dedicated rights-of-way:
1.
Wall with landscaping. The wall shall be setback two and one-half (2 ½) feet from the right-of-way line and the resulting setback area shall contain a continuous extensively landscaped buffer which must be maintained in a good healthy condition by the property owner, or where applicable, by the condominium, homeowners or similar association. The landscape buffer shall contain one (1) or more of the following planting materials:
a.
Shrubs. Shrubs shall be a minimum of three (3) feet in height when measured immediately after planting and shall be planted and maintained to form a continuous, unbroken, solid, visual screen within one (1) year after time of planting.
b.
Hedges. Hedges shall be a minimum of three (3) feet in height when measured immediately after planting and shall be planted and maintained to form a continuous, unbroken, solid, visual screen within one (1) year after time of planting.
c.
Vines. Climbing vines shall be a minimum of thirty-six (36) inches in height immediately after planting.
2.
Metal picket fence. Where a metal picket fence abutting a zoned or dedicated right-of-way is constructed in lieu of a decorative wall, landscaping shall not be required.
2.
Health and safety standards
a.
The proposed Wireless Support Service Facility shall not block vehicular or pedestrian traffic on adjacent uses or properties.
b.
The proposed Wireless Supported Service Facility shall be accessible to permit entry onto the property by fire, police and emergency services.
c.
The proposed Wireless Supported Service Facility shall comply with any applicable Miami-Dade County aviation requirements.
d.
Safe sight distance triangles are maintained pursuant to Section 33-11 of this Code.
3.
Environmental standards
a.
The proposed Antenna Support Structure and related equipment shall not result in the destruction of trees that have a diameter at breast height (as defined in Section 18A-3.(J) of this Code) of greater than 10 inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code.
b.
The proposed Wireless Supported Service Facility shall not be located in an officially designated natural forest community.
c.
The proposed Wireless Supported Service Facility shall not be located in an officially designated wildlife preserve.
d.
The applicant shall submit an environmental impact study prepared by a licensed environmental firm that the proposed Wireless Supported Service Facility will not affect endangered or threatened species or designated critical habitats as determined by the Endangered Species Act of 1974; and that the facility will not have a substantial deleterious impact on wildlife or protected plant species.
e.
The applicant shall submit a historical analysis prepared by a professional cultural specialist that the proposed Wireless Supported Service Facility shall not affect districts, sites, buildings, structures or objects of American history, architecture, archeology, engineering or culture, that are listed in the National Register of Historic Places or applicable Miami-Dade County or State of Florida historic preservation regulations.
f.
The proposed Wireless Supported Service Facility shall not be located on an Indian Religious site.
4.
Necessity standards
a.
The applicant shall establish that there are no available existing Wireless Supported Service Facilities or buildings within the prospective provider's search area suitable for the installation of the provider's proposed Antennas due to one or more of the following circumstances:
(i)
existing Wireless Supporting Service Facilities or buildings within the search area have insufficient structural capacity to support the proposed antennas and related equipment; or
(ii)
existing Wireless Supported Service Facilities or buildings within the search area are not of sufficient height to resolve the lack of wireless service coverage or capacity in the area intended to be served by the proposed Wireless Supported Service Facility or to cure the signal interference problem in that area; or
(iii)
the proposed Antenna would cause radio frequency interference or other signal interference problems with existing Wireless Supported Service Facilities or buildings, or the Antenna on the existing Wireless Supported Service Facilities or buildings may cause signal interference with the provider's proposed Wireless Supported Service Facility; or
(iv)
the owner of an existing building or Wireless Supported Service Facility located within the provider's search area that has existing height and structural capacity and would otherwise resolve the lack of wireless service coverage, a deficiency in capacity or signal interference problems, has rejected the provider's reasonable attempts to locate its Wireless Supported Service Facility on its building or facility.
The applicant shall provide evidence of one or more criteria listed in 4(a)(i)—(iv) above with an affidavit from a radio frequency engineer, structural engineer, owner or authorized provider's representative acceptable to the Department, as applicable. For purposes of this section, search area shall mean the geographic area within which the provider can demonstrate that the Wireless Supported Service Facility must be located in order to resolve the lack of wireless service coverage, a deficiency in capacity or signal interference problems.
b.
The applicant shall demonstrate that the proposed Wireless Supported Service Facility will cure:
i.
signal interference problems; or
ii.
a total lack of wireless service coverage or capacity among all providers in the area intended to be served by the proposed Wireless Supported Service Facility; and
iii.
will allow its customers to make and maintain wireless calls on a reliable basis as defined by the provider's quality criteria; and
c.
The applicant shall provide information to permit independent verification of factual data relied upon by the applicant to establish 4(b) above, including, but not limited to the following:
i.
the purpose for the proposed Wireless Supported Service Facility; and
ii.
the following technical data for the proposed Wireless Supported Service Facility and for each existing, authorized, pending and proposed adjacent facility:
a.
site name or other reference;
b.
facility latitude and longitude;
c.
site elevation;
d.
for each antenna at each of the included facilities:
i.
height of antenna radiation center;
ii.
antenna type and manufacturer;
iii.
maximum effective radiated output power, including the maximum total power radiated from all channels;
iv.
azimuth of main antenna lobe; and
v.
beam tilt and null-fill of each antenna.
iii.
a complete up- and down-link power budget for the proposed Wireless Supported Service Facility, including any differences that may exist with the power budgets of the adjacent facilities, to ensure that all of the gain and loss factors used by the applicant are included in a verification analysis.
iv.
complete descriptions of methodology, formulas, data presented in appropriate parameter data units (e.g., Erlangs, Watts, dBm, ft.), existing traffic studies and trend analyses if the proposed facility is intended to cure a lack of capacity, and any other information necessary for an independent engineer to verify statements concerning signal interference or lack of capacity or coverage; and
v.
identification of any equipment that differs from industry standards.
d.
The applicant shall reimburse the department for fees charged to the department for independent verification of factual data relied upon by the applicant, as required pursuant to paragraph 4c above.
5.
Mitigation standards
a.
A non-camouflaged Antenna Support Structure or equipment building shall be located so that it does not obscure, in whole or in part, an existing view to any historically designated landmark, natural area, or natural water body (i.e., river, lake, ocean) from any residentially zoned property under different ownership.
b.
Existing landscaping, vegetation, trees, intervening buildings or permanent structures shall be utilized to the maximum extent possible to obscure the view of the non-camouflaged Antenna Support Structure from public right-of-way or residentially zoned property.
c.
Any proposed Antenna Support Structure shall be designed to accommodate the collocation of at least two (2) Providers.
d.
All new non-camouflaged Antenna Support Structures approved at public hearing after adoption of this Ordinance, when exceeding 125 feet in height, must be structurally designed to accommodate at least three (3) Providers.
e.
To minimize visual impact in all cases, new or reconstructed Antenna Support Structures shall:
(i)
if non-camouflaged, utilize non-reflective galvanized finish or coloration to blend in with the natural environment unless Federal Aviation Administration painting or markings are otherwise required. The part of the Antenna Support Structure that is viewed against the sky and all Antennas attached thereto shall be a single color, either light gray or similar neutral color; the part of the Antenna Support Structure and all Antennas not viewed against the sky shall also be colored to blend with its surrounding background and harmonize with the color of existing structures or vegetation, as applicable; and
(ii)
be designed to preserve all vegetation to the maximum extent feasible to mitigate visual impact and create a buffer that harmonizes with the elements and characteristics of the existing parcel on which the Wireless Support Service Facility is located and adjacent properties; and
(iii)
shall be designed to be harmonious with the architectural elements of the surrounding structures, such as bulk, massing and scale of surrounding properties; or be designed to blend and be harmonious with the principal structure on the property on which the Antenna Support Structure is proposed to be constructed and installed.
f.
A camouflaged Antenna Support Structure shall be designed as an artificial tree or to serve a purpose other than supporting antennas (i.e., lighting of sports facilities, transmission of electrical and/or telephone lines, flag poles).
g.
To reduce the visual impact, an Antenna Support Structure readily observable from residentially zoned districts located within the immediate vicinity of the leased parcel shall be a camouflaged Antenna Support Structure, unless the provider can demonstrate that an Antenna Support Structure of a monopole type would be less visually obtrusive or would reduce proliferation of additional Antenna Support Structures within the immediate vicinity of the search area of the leased parcel and thus reduce the cumulative visual impact caused by future additional Antenna Support Structures in the immediate vicinity. In all cases, Antenna Support Structures of the guyed wire or self-supporting lattice type for the purposes of providing wireless telecommunications services only, shall be prohibited within the immediate vicinity of all existing residentially zoned districts and residential structures, except that the parent tract of the application property site may contain a residential structure.
h.
If a non-camouflaged Antenna Support Structure cannot be readily observed from residentially zoned property located within the immediate vicinity of the leased parcel, strongest support shall be given in the following order from most preferred to least preferred Antenna Support Structure type: existing Antenna Support Structures, existing buildings or structures, monopole, lattice or self-supporting or, guyed wire.
i.
The architectural design, scale, mass, color, texture and building materials of any proposed equipment building structure shall be aesthetically harmonious with that of other existing or proposed structures or buildings on the parent and leased tracts and in the immediate vicinity.
j.
The accessory wireless equipment building used in conjunction with the proposed Wireless Supported Service Facility shall be designed to mitigate visual impact and be comparable with the scale and character of the existing structures on the subject property and in the immediate vicinity, or blend into natural surrounding vegetation or buildings through the use of color, building materials, textures, fencing or landscaping to minimize visibility from or otherwise make the appearance of the accessory wireless equipment building the least visually obtrusive to adjacent uses and properties, as well as pedestrian and vehicular traffic.
k.
If an alternative site exists, or could be constructed, for the Antenna Support Structure, that would provide substantially lesser impact upon residentially zoned districts located within the immediate vicinity of the proposed site and that would provide for a substantially equivalent level of coverage, interference or capacity mitigation as what the applicant demonstrated is necessary pursuant to 33-311(A)(18)(4)(b), then the applicant shall locate the proposed facility on the alternative site.
(b)
Alternative Development Option for Any Wireless Supported Facility, Including Antenna Support Structures. Upon appeal or direct application in specific cases to hear and grant approval, approval with conditions or denial of applications for an alternative site development option applicable to Wireless Supported Service Facilities, including Antenna Support Structures, approved pursuant to the standards set forth in Section 33-311(A)(18)(a) above and in Section 33-36.2, based on the following:
1.
Setbacks. An alternative development option setback for Antenna Support Structures and/or accessory wireless equipment buildings shall be approved after public hearing upon demonstration that the Antenna Support Structure is designed so that if the structure fails the failed portion of the structure will be contained within the parent tract and upon demonstration of the following:
(a)
the applicant has obtained the recordable consent of the owner(s) of the property abutting the property line from which relief from the setback requirement is requested; and
(b)
the applicant demonstrates that the setback requirement cannot be met on the property; and
1.
that any feasible alternative site available is in closer proximity to single-family, duplex or agriculturally zoned property; or
2.
that the modification to the setback requirement will reduce the visual impact of the Wireless Supported Service Facility; or
3.
the location of an Antenna Support Structure on a parcel that satisfies all setback and fall zone requirements will create a greater visual impact on adjacent or surrounding residential uses than the proposed site that requires a reduction of applicable setback requirements.
2.
Landscaping. An alternative site development option from the landscape requirements set forth in Sec. 18A-1(B)(2)(d) shall be granted to allow a Wireless Supported Service Facility to be screened in a manner other than as provided in that section upon demonstration by the applicant that the alternate method of landscape screening proposed mitigates the visual impact of the Wireless Supported Service Facility as effectively as screening in accordance with Section 18A-1(B)(2)(d).
3.
Lot Area/Parent Tract. An alternative development option from the minimum parent tract area required by this subsection for any Wireless Supported Service Facility shall be approved upon demonstration of the following:
a.
the size and dimensions of the lot are sufficient to provide all setbacks required by the underlying zoning district regulations or regulations of this subsection, which ever is greater; and
b.
the lot area is not less than ninety (90) percent of the minimum lot area required by the underlying zoning district regulations; and
c.
the density of the proposed alternative development does not exceed that permitted by the underlying zoning district regulations.
4.
Federal Telecommunications Act. Notwithstanding the foregoing, a Wireless Supported Service Facility including a Antenna Support Structure shall be permitted in any zoning district where necessary to avoid the prohibition or effective prohibition of the provision of personal wireless services or discrimination among wireless service providers as contemplated by the Federal Telecommunications Act, 47 U.S.C. § 332 (1996), as amended.
(19)
Alternative Site Development Option for Buildings and Structures in IU Zoning Districts. This subsection provides for the establishment of an alternative site development option, after public hearing, for buildings and structures permitted by the underlying district regulations, except residential buildings and structures and religious facilities, in the IU-1, IU-2, IU-3, and IU-C zoning districts, in accordance with the standards established herein. In considering any application for approval hereunder, the Community Zoning Appeals Board shall consider the same subject to approval of a site plan or such other plans as necessary to demonstrate compliance with the standards herein.
(a)
Purpose. The purpose of this subsection is to create objective standards to regulate the site-specific development of industrial buildings and structures in specified zoning districts. The standards provided in this subsection are alternatives to the generalized standards contained in regulations governing the specified zoning districts. The site development standards permit alternative patterns of site development in accordance with the Comprehensive Development Master Plan ("CDMP") where the public interest served by the underlying district regulations and CDMP will be served, and the objectives of the creative urban design, urban infill development and redevelopment, or the preservation and enhancement of property values will be promoted, as demonstrated by the proposed alternative development's compliance with the standards of this subsection. A zoning application for development in compliance with the alternative standards shall be approved upon demonstration at public hearing that the proposed development is in compliance with the applicable alternative standards and does not contravene the enumerated public interest standards established herein.
(b)
For the purposes of this subsection, the following term shall have the following meaning:
"Discordant Use" means adjacent land uses which
1)
have a different zoning district prefix, or
2)
contain an existing or approved use which is otherwise allowable as of right in a different zoning district prefix.
(c)
Setbacks for a principal or accessory industrial building or structure shall be approved after public hearing upon demonstration of the following:
(1)
the character and design of the proposed alternative development will not result in a material diminution of the privacy of adjoining property; and
(2)
the proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity, taking into account existing structures and open space; and
(3)
the proposed alternative development will not reduce the amount of open space on the parcel proposed for alternative development by more than 20% of the landscaped open space percentage required by the applicable district regulations; and
(4)
any area of shadow cast by the proposed alternative development upon an adjoining property will be no larger than would be cast by a structure constructed pursuant to the underlying district regulations, or will have no more than a de minimus impact on the use and enjoyment of the adjoining parcel of land; and
(5)
the proposed alternative development will not involve the installation or operation of any mechanical equipment closer to the adjoining parcel of land than any other portion of the proposed alternative development, unless such equipment is located within an enclosed, soundproofing structure and if located on the roof of such an alternative development shall be screened from ground view and from view at the level in which the installations are located, and shall be designed as an integral part of and harmonious with the building design; and
(6)
the proposed alternative development will not involve any outdoor lighting fixture that casts light on an adjoining parcel of land at an intensity greater than permitted by this Code; and
(7)
the architectural design, scale, mass, and building materials of any proposed structure(s) or addition(s) are aesthetically harmonious with that of other existing or proposed structure(s) or building(s) on the parcel proposed for alternative development; and
(8)
the wall(s) of any building within a front, side street or double frontage setback area or within a setback area adjacent to a discordant use, required by the underlying district regulations, shall be improved with architectural details and treatments that avoid the appearance of a "blank wall"; and
(9)
the proposed alternative development will not result in the destruction or removal of mature trees within a setback required by the underlying district regulations, with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the same side of the lot, parcel or tract; and
(10)
any windows or doors in any building(s) to be located within an interior side or rear setback required by the underlying district regulations shall be designed and located so that they are not aligned directly across from facing windows or doors on building(s) of a discordant use located on an adjoining parcel of land; and
(11)
total lot coverage shall not be increased by more than ten percent (10%) of the lot coverage permitted by the underlying district regulations; or a total floor area ratio shall not be increased by more than ten percent (10%) of the floor area ratio permitted by the underlying district regulations; and
(12)
the area within an interior side or rear setback required by the underlying district regulations located adjacent to a discordant use will not be used for off-street parking except:
(A)
in an enclosed garage where the garage door is located so that it is not aligned directly across from facing windows or doors on buildings of a discordant use located on an adjoining parcel of land; or
(B)
the off-street parking is buffered from property that abuts the setback area by a solid wall at least six (6) feet in height along the area of pavement and parking, with either: (i) articulation to avoid the appearance of a "blank wall" when viewed from the adjoining property, or (ii) landscaping that is at least three (3) feet in height at time of planting, located along the length of the wall between the wall and the adjoining property, accompanied by specific provision for the maintenance of the landscaping, such as but not limited to, an agreement regarding its maintenance in recordable form from the adjoining landowner; and
(13)
any structure within an interior side setback required by the underlying district regulations:
(A)
is screened from adjoining property by landscape material of sufficient size and composition to obscure at least sixty percent (60%), ninety percent (90%) if located adjoining or adjacent to a discordant use, of the proposed alternative development to a height of the lower fourteen (14) feet of such structure(s) at time of planting; or
(B)
is screened from adjoining property by an opaque fence or wall at least eight (8) feet, six (6) feet if located adjoining or adjacent to a discordant use, in height that meets the standards set forth in paragraph (g) herein; and
(14)
any structure not attached to a principal building and proposed to be located within a setback required by the underlying district regulations shall be separated from any other structure by at least 10 feet or the minimum distance to comply with fire safety standards, whichever is greater; and
(15)
when a principal or accessory building is proposed to be located within a setback required by the underlying district regulations, any enclosed portion of the upper floor of such building shall not extend beyond the first floor of such building within the setback; and
(16)
safe sight distance triangles shall be maintained as required by this Code; and
(17)
the parcel proposed for alternative development shall continue to provide the required number of on-site parking spaces as required by this Code, except that off-site parking spaces may be provided in accordance with Section 33-128 of this Code; and
(18)
the parcel proposed for alternative development shall satisfy all other applicable underlying district regulations or, if applicable, prior zoning actions issued prior to the effective date of this ordinance (May 16, 2003), regulating setbacks, lot area and lot frontage, lot coverage, floor area ratio, landscaped open space and structure height; and
(19)
the proposed development will meet the following:
(A)
interior side setbacks shall not be reduced by more than fifty percent (50%) of the side setbacks required by the underlying district regulations, or the minimum distance required to comply with fire safety standards, whichever is greater when the adjoining parcel of land is a BU or IU district; interior side setbacks shall not be reduced by more than twenty-five (25%) percent of the interior side setbacks required by the underlying district regulations when the adjoining parcel of land allows a discordant use;
(B)
side street setbacks shall not be reduced by more than twenty-five (25%) of the underlying district regulations;
(C)
front setbacks (including double-frontage setbacks) shall not be reduced by more than twenty-five (25%) percent of the setbacks required by the underlying district regulations; and
(D)
rear setbacks shall not be reduced below fifty (50%) percent of the rear setback required by the underlying district regulations, or the minimum distance required to comply with fire safety standards, whichever is greater, when the adjoining parcel of land is a BU or IU district; rear setbacks shall not be reduced below twenty-five (25%) percent of the rear setback required by the underlying district regulations when the adjoining parcel of land allows a discordant use.
(E)
setbacks between building(s) shall not be reduced below 10 feet, or the minimum distance required to comply with fire safety standards, whichever is greater.
(d)
A lot coverage or floor area ratio for an industrial building shall be approved upon demonstration of the following:
(1)
total lot coverage or floor area ratio shall not be increased by more than ten percent (10%) of the lot coverage or floor area permitted by the underlying district regulations; and
(2)
the proposed alternative development will not result in the destruction or removal of mature trees on the lot with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the lot; and
(3)
the increase in lot coverage or floor area ratio will not result in a principal or accessory building(s) with an architectural design, scale, mass or building materials that are not aesthetically harmonious with that of other existing or proposed structures in the immediate vicinity; and
(4)
the proposed alternative development will not result in an obvious departure from the aesthetic character of in the immediate vicinity.
(e)
Landscaped open space for an industrial development shall be approved after public hearing upon demonstration of the following:
(1)
landscaped open space shall not be decreased by more than ten percent (10%) of the landscape open space required by the applicable district regulations; and
(2)
the proposed alternative development will not result in the destruction or removal of mature trees on the lot with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the lot; and
(3)
the landscaped open space provided shall be used to shade and cool, direct wind movements, enhance architectural features, relate structure design to site, visually screen non-compatible uses and block noise generated by major roadways and intense use areas; and
(4)
the landscaped open space provided shall relate to any natural characteristics in such a way as to preserve and enhance their scenic and functional qualities; and
(5)
the proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity.
(6)
the installation of the required percentage of landscaped open space on an industrial site containing an existing building, would necessitate a decrease in the number of parking spaces provided, or necessitate a decrease in the square footage of an existing building on the site; and
(7)
that twenty percent (20%) more lot or street trees are provided on the site or within the adjacent rights-of-way, respectively; said trees to be of a type and size as required by Chapter 18A; and
(8)
that an additional number of shrubs shall be provided commensurate with the trees in (7) above; said shrubs to be of a number, type and size as required by Chapter 18A.
(f)
The lot area and frontage for industrial development shall be approved upon demonstration of at least one of the following:
(1)
the proposed lot area and frontage shall permit the development or redevelopment of an industrial building(s) on a lot, parcel or tract of land where such structure(s) would not otherwise be permitted by the underlying district regulations due to the size or configuration of the parcel proposed for alternative development, provided that:
(A)
the lot, parcel or tract is under lawful separate ownership from any contiguous property; and
(B)
the proposed alternative development will not result in the further subdivision of land; and
(C)
the size and dimensions of the lot, parcel or tract are sufficient to provide all setbacks required by the underlying district regulations; and
(D)
the area of the lot, parcel or tract is not less than ninety percent (90%) of the minimum lot area required by the underlying district regulations; and
(E)
the proposed alternative development does not result in an obvious departure from the aesthetic character of the immediate vicinity; and
(F)
he lot, parcel or tract proposed for alternative development does not adjoin or lie adjacent to a dissimilar use; and
(G)
the frontage dimension of the lot, parcel or tract is not less than ninety percent (90%) of the minimum frontage required by the applicable district regulations, except that the frontage dimension of a flag-lot, parcel or tract shall be permitted to be reduced to the minimum width necessary to allow vehicular access as determined by the County; and
(H)
the resultant frontage dimension of the lot, parcel or tract provides vehicular ingress and egress to all resulting lots, parcels or tracts, including on-site access to emergency equipment.
(2)
the proposed alternative development results in landscaped open space, community design, amenities or preservation of natural resources that enhances the function or aesthetic character of the immediate vicinity in a manner not otherwise achievable through application of the applicable district regulations, provided that:
(A)
the number of lots, parcels or tracts of the proposed alternative development does not exceed that normally permitted by the lot area dimensions of the underlying district regulations; and
(B)
the size and dimensions of each lot, parcel or tract in the proposed alternative development are sufficient to provide all setbacks required by the underlying district regulations, or, if applicable, any prior zoning actions for similar uses issued prior to the effective date of this ordinance May 16, 2003); and
(C)
the area of each lot, parcel or tract is not less than eighty percent (80%) of the area required by the applicable district regulations; and
(D)
the proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity; and
(E)
the lot, parcel or tract proposed for alternative development does not adjoin or lie adjacent to a dissimilar use; and
(F)
the resultant frontage of the lot, parcel or tract provides including on-site access to emergency equipment.
(3)
the proposed lot area and frontage is such that:
(A)
the proposed alternative development will not result in the creation of more than two (2) lots, parcels or tracts; and
(B)
the size and dimensions of each lot, parcel or tract are sufficient to provide all setbacks required by the applicable district regulations; and
(C)
no lot area shall be less than the smaller of:
(i)
ninety percent (90%) of the lot area required by the applicable district regulations; or
(ii)
the average area of the developed lots, parcels or tracts in the immediate vicinity within the same zoning district; and
(D)
the proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity; and
(E)
the parcel proposed for alternative development does not adjoin or lie adjacent to a dissimilar use; and
(F)
the resultant frontage provides vehicular ingress and egress to all resulting lots, parcels or tracts, including on-site access to emergency equipment.
(g)
An alternative maximum height of walls, hedges or fences shall be approved upon demonstration of the following:
(1)
no wall, hedge or fence shall exceed ten (10) feet in height when adjoining BU or IU zoned lot or parcel; no wall, hedge or fence shall exceed eight (8) feet when adjoining a discordant use, and
(2)
no wall, hedge or fence located in a front or side street setback required by the applicable district regulations shall exceed six (6) feet in height; and
(3)
the additional height of a proposed wall, hedge or fence will not obscure in whole or in part an existing view or vista to any landmark, natural area, or waterbody from any window or door of a building on an adjoining discordant use; and
(4)
proposed walls or fences shall be:
(A)
articulated to avoid the appearance of a "blank wall" when viewed from adjoining property, or
(B)
landscaped with landscaping that is at least three (3) feet in height at time of planting, located along the length of the wall between the wall and the adjoining property, accompanied by specific provision for the maintenance of the landscaping, such as but not limited to, an agreement from the landowner regarding its maintenance in recordable form from the adjoining property owner, or
(C)
where facing a public right-of-way, set back at least two and one-half (2-½) feet from the right-of-way line and extensively landscaped with shrubs of a minimum of three (3) feet in height when measured immediately after planting, which will form a continuous, unbroken, solid, visual screen within one (1) year after time of planting; hedges of a minimum of three (3) feet in height immediately after planting, which will form a continuous, unbroken, solid, visual screen within one (1) year after time of planting; and/or climbing vines of a minimum of thirty-six (36) inches in height immediately after planting; and
(5)
proposed fences shall be constructed or installed so that all sides of the fence are "finished" in accordance with the applicable regulations; and
(6)
proposed fences are constructed of durable materials and are decorative; and
(7)
proposed fences are not comprised of chain link or other wire mesh, unless hedges totally screen the fence; and
(8)
safe sight distance triangles are maintained pursuant to this Code.
(h)
An alternative placement of a required perimeter wall setback from the rear property line(s) of the IU site where said property line adjoins or lies across the street right-of-way from a residential district, shall be approved after public hearing upon demonstration of the following:
(1)
the setback of the wall is the minimum distance necessary so as not to encroach into existing utility or landscaped easement(s); and
(2)
that visual screening for the wall by way of landscaping is included in the easement area to prevent graffiti vandalism in a manner provided by this Code; and
(3)
that a suitable mechanism for maintenance of the landscaped area by the property owner, tenant association, or similar association be provided in the form of a covenant running with the land.
(i)
An alternative opening in a wall otherwise required by this Code to be a solid, unbroken barrier when an outdoor industrial use is required to be confined within an area enclosed with walls when the use adjoins or lies adjacent to a residential district, shall be approved after public hearing upon demonstration of the following:
(1)
that the width of the wall opening is the minimum width necessary for pedestrians to access the industrial site from adjoining or adjacent residential development(s); and
(2)
that the wall opening is immediately adjoining or adjacent to a residential lot, parcel or tract which is restricted in use as common open space.
(j)
An alternative reduction in the number of required parking spaces shall be approved on an IU site after public hearing upon demonstration of the following:
1)
the alternative reduction of the number of parking spaces does not apply to parking spaces for the disabled, parking spaces for persons transporting small children, nor to bicycle racks or other means of bicycle storage; and either
2)
the total number of required parking spaces is not reduced below 10%; and
(A)
the alternative reduction of the number of required parking spaces does the lot, parcel or tract is located within 660 feet of an existing transportation corridor such as a Major Roadway identified on the Land Use Plan (LUP) Map, within one-quarter (¼) mile from existing rail, transit stations, or existing express busway stops; or
(B)
the hours of operation of multiple industrial uses within the development vary and do not overlap and a recordable agreement is provided which restricts the hours of operation; or
3)
the alternative development involves a mixed-use project in which the number of off-street parking spaces is calculated by applying the Urban Land Institute (ULI) Shared Parking Methodology to the required number of parking spaces.
(k)
Notwithstanding the foregoing, no proposed alternative development shall be approved upon demonstration that the proposed alternative development:
(1)
will result in a significant diminution of the value of property in the immediate vicinity; or
(2)
will have substantial negative impact on public safety due to unsafe automobile movements, heightened vehicular-pedestrian conflicts, or heightened risk of fire; or
(3)
will result in a materially greater adverse impact on public services and facilities than the impact that would result from development of the same parcel pursuant to the underlying district regulations.
(l)
Proposed alternative development under this subsection shall provide additional amenities or buffering to mitigate the impacts of the development as approved, where the amenities or buffering expressly required by this subsection are insufficient to mitigate the impacts of the development. The purpose of the amenities or buffering elements shall be to preserve and protect the economic viability of any industrial enterprises proposed within the approved development and the quality of life of residents and other owners of property in the immediate vicinity in a manner comparable to that ensured by the underlying district regulations. Examples of such amenities include but are not limited to: active or passive recreational facilities, landscaped open space over and above that normally required by the code, additional trees or landscaping, convenient pedestrian connection(s) to adjacent residential development(s), convenient covered bus stops or pick-up areas for transportation services, sidewalks (including improvements, linkages, or additional width), bicycle paths, buffer areas or berms, street furniture, undergrounding of utility lines, monument signage (where detached signs are allowed) or limited wall signage, and decorative street lighting. In determining which amenities or buffering elements are appropriate, the following shall be considered:
(A)
the types of needs of the residents or other owners of property in the immediate vicinity and the needs of the occupants of the parcel proposed for development that would likely be occasioned by the development, including, but not limited to, recreational, open space, transportation, aesthetic amenities, and buffering from adverse impacts; and
(B)
the proportionality between the impacts on the residents or on other owners of property in parcel(s) in the immediate vicinity and the amenities or buffering required. For example, a reduction in lot area for numerous lots may warrant the provision of additional landscaped open space.
(20)
Alternative Site Development Option for Semi-Professional Office Buildings and Structures. This subsection provides for the establishment of an alternative site development option, after public hearing, for semi-professional office buildings and structures, when such uses are permitted by the underlying district regulations, in the RU-5 and RU-5A zoning districts, in accordance with the standards established herein. In considering any application for approval hereunder, the Community Zoning Appeals Board shall consider the same subject to approval of a site plan or such other plans as necessary to demonstrate compliance with the standards herein.
(a)
Purpose. The purpose of this subsection is to create objective standards to regulate the site-specific development of semi-professional office buildings and structures in specified zoning districts. The standards provided in this subsection are alternatives to the generalized standards contained in regulations governing the specified zoning districts. The site development standards permit alternative patterns of site development in accordance with the Comprehensive Development Master Plan ("CDMP") where the public interest served by the underlying district regulations and CDMP will be served, and the objectives of the creative urban design, urban infill development and redevelopment, or the preservation and enhancement of property values will be promoted, as demonstrated by the proposed alternative development's compliance with the standards of this subsection. A zoning application for development in compliance with the alternative standards shall be approved upon demonstration at public hearing that the proposed development is in compliance with the applicable alternative standards and does not contravene the enumerated public interest standards established herein.
(b)
For the purposes of this subsection, the following term shall have the following meanings:
"Discordant Use" means adjacent land uses which:
1)
are materially less intense or of a materially lesser density, or
2)
are materially different in their manner of hours of operation, or
3)
have a different zoning prefix, or
4)
contain an existing or approved use, which is otherwise allowable as of right in a different zoning district prefix.
(c)
Setbacks for a principal building, or accessory building or structure in the RU-5A, shall be approved after public hearing upon demonstration of the following:
(1)
the character and design of the proposed alternative development will not result in a material diminution of the privacy of adjoining property; and
(2)
the proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity, taking into account existing structures and open space; and
(3)
the proposed alternative development will not reduce the amount of open space on the parcel proposed for alternative development by more than twenty percent (20%) of the landscaped open space percentage required by the applicable district regulations; and
(4)
any area of shadow cast by the proposed alternative development upon an adjoining property will be no larger than would be cast by a structure constructed pursuant to the underlying district regulations, or will have no more than a de minimus impact on the use and enjoyment of the adjoining parcel of land; and
(5)
the proposed alternative development will not involve the installation or operation of any mechanical equipment closer to the adjoining parcel of land than any other portion of the proposed alternative development, unless such equipment is located within an enclosed, soundproofing structure and if located on the roof of such an alternative development shall be screened from ground view and from view at the level in which the installations are located, and shall be designed as an integral part of and harmonious with the building design; and
(6)
the proposed alternative development will not involve any outdoor lighting fixture that casts light on an adjoining parcel of land at an intensity greater than permitted by this Code; and
(7)
the architectural design, scale, mass, and building materials of any proposed structure(s) or addition(s) are aesthetically harmonious with that of other existing or proposed structure(s) or building(s) on the parcel proposed for alternative development; and
(8)
the wall(s) of any building within a front, side street or double frontage setback area or within a setback area adjacent to a discordant use, required by the underlying district regulations, shall be improved with architectural details and treatments that avoid the appearance of a "blank wall"; and
(9)
the proposed alternative development will not result in the destruction or removal of mature trees within a setback required by the underlying district regulations, with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the same side of the lot, parcel or tract; and
(10)
any windows or doors in any building(s) to be located within an interior side or rear setback required by the underlying district regulations shall be designed and located so that they are not aligned directly across from facing windows or doors on building(s) of a discordant use located on an adjoining parcel of land; and
(11)
total lot coverage shall not be increased by more than ten percent (10%) of the lot coverage permitted by the underlying district regulations; or a total floor area ratio shall not be increased by more than ten percent (10%) of the floor area ratio permitted by the underlying district regulations; and
(12)
the area within an interior side or rear setback required by the underlying district regulations located adjacent to a discordant use will not be used for off-street parking except:
(A)
in an enclosed garage where the garage door is located so that it is not aligned directly across from facing windows or doors on buildings of a discordant use located on an adjoining parcel of land; or
(B)
if the off-street parking is buffered from property that abuts the setback area by a solid wall at least six (6) feet in height along the area of pavement and parking, with either:
(i)
articulation to avoid the appearance of a "blank wall" when viewed from the adjoining property, or
(ii)
landscaping that is at least three (3) feet in height at time of planting, located along the length of the wall between the wall and the adjoining property, accompanied by specific provision for the maintenance of the landscaping, such as but not limited to, an agreement regarding its maintenance in recordable form from the adjoining landowner; and
(13)
any structure within an interior side setback required by the underlying district regulations:
(A)
is screened from adjoining property by landscape material of sufficient size and composition to obscure at least eighty percent (80%) (if located adjoining or adjacent to a discordant use) of the proposed alternative development to a height of the lower fourteen (14) feet of such structure(s) at time of planting; or
(B)
is screened from adjoining property by an opaque fence or wall at least five (5) feet in height, if located adjoining or adjacent to a discordant use, that meets the standards set forth in paragraph (g) herein; and
(14)
any structure in the RU-5A district not attached to a principal building and proposed to be located within a setback required by the underlying district regulations shall be separated from any other structure by at least 10 feet or the minimum distance to comply with fire safety standards, whichever is greater; and
(15)
when a principal building, or accessory building in the RU-5A district, is proposed to be located within a setback required by the underlying district regulations, any enclosed portion of the upper floor of such building shall not extend beyond the first floor of such building within the setback; and
(16)
safe sight distance triangles shall be maintained as required by this Code; and
(17)
the parcel proposed for alternative development shall continue to provide the required number of on-site parking spaces as required by this Code; and
(18)
the parcel proposed for alternative development shall satisfy underlying district regulations or, if applicable, prior zoning actions issued prior to the effective date of this ordinance (July 11, 2003), regulating setbacks, lot area and lot frontage, lot coverage, floor area ratio, landscaped open space and structure height; and
(19)
the proposed development will meet the following:
(A)
interior side setbacks shall not be reduced by more than fifty percent (50%) of the side setbacks required by the underlying district regulations, or the minimum distance required to comply with fire safety standards, whichever is greater when the adjoining parcel of land is a RU-5, RU-5A, BU, IU, or OPD district or use provided, however, interior side setbacks shall not be reduced by more than twenty-five percent (25%) of the interior side setbacks required by the underlying district regulations when the adjoining parcel of land allows a discordant use.
(B)
side street setbacks shall not be reduced by more than twenty-five percent (25%) of the underlying district regulations;
(C)
front setbacks (including double-frontage setbacks) shall not be reduced by more than twenty-five percent (25%) of the setbacks required by the underlying district regulations; and
(D)
rear setbacks shall not be reduced below fifty percent (50%) of the rear setback required by the underlying district regulations, or the minimum distance required to comply with fire safety standards, whichever is greater, when the adjoining parcel of land is a RU-5, RU-5A, BU, IU, or OPD district or use provided, however, rear setbacks shall not be reduced below twenty-five percent (25%) of the rear setback required by the underlying district regulations when the adjoining parcel of land allows a discordant use.
(E)
setbacks between building(s) shall not be reduced below 10 feet, or the minimum distance required to comply with fire safety standards, whichever is greater.
(d)
An alternative lot coverage or floor area ratio for a building(s) shall be approved upon demonstration of the following:
(1)
total lot coverage or floor area ratio shall not be increased by more than ten percent (10%) of the lot coverage or floor area permitted by the underlying district regulations; and
(2)
the proposed alternative development will not result in the destruction or removal of mature trees on the lot with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the lot; and
(3)
the increase in lot coverage or floor area ratio will not result in a principal buildings, or accessory building(s) in the RU-5A district, with an architectural design, scale, mass or building materials that are not aesthetically harmonious with that of other existing or proposed structures in the immediate vicinity; and
(4)
the proposed alternative development will not result in an obvious departure from the aesthetic character of in the immediate vicinity.
(e)
An alternative amount of landscaped open space shall be approved upon demonstration of the following:
(1)
landscaped open space shall not be decreased by more than twenty percent (20%) of the landscape open space required by the applicable district regulations; and
(2)
the proposed alternative development will not result in the destruction or removal of mature trees on the lot with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the lot; and
(3)
the landscaped open space provided shall be used to shade and cool, direct wind movements, enhance architectural features, relate structure design to site, visually screen non-compatible uses and block noise generated by major roadways and intense use areas; and
(4)
the landscaped open space provided shall relate to any natural characteristics in such a way as to preserve and enhance their scenic and functional qualities; and
(5)
the proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity; and
(6)
the installation of the required percentage of landscaped open space on a parcel containing a previously approved and existing building, would necessitate a decrease in the number of parking spaces provided, or necessitate a decrease in the square footage of an existing building on the site; and
(7)
the total number of lot or street trees shall be increased by twenty percent (20%) greater than the number required by the underlying zoning district regulations, or by an additional twenty percent (20%) of the number of trees previously approved, whichever number is greater, and provided such trees are provided on the site or within the adjacent rights-of-way, respectively; said trees to be of a type and size as required by Chapter 18A; and
(8)
a prorata additional number of shrubs shall be provided commensurate with the trees in (7) above, said shrubs to be of a number, type and size as required by Chapter 18A.
(f)
An alternative lot area and frontage shall be approved upon demonstration of at least one of the following:
(1)
the proposed lot area and frontage shall permit the development or redevelopment of a structure(s) on a lot, parcel or tract of land where such structure(s) would not otherwise be permitted by the underlying district regulations due to the size or configuration of the parcel proposed for alternative development, provided that:
(A)
the lot, parcel or tract is under lawful separate ownership from any contiguous property; and
(B)
the proposed alternative development will not result in the further subdivision of land; and
(C)
the size and dimensions of the lot, parcel or tract are sufficient to provide all setbacks required by the underlying district regulations; and
(D)
the area of the lot, parcel or tract is not less than: seventy-five percent (75%) of the minimum lot area required by the underlying district regulations; or eighty-five percent (85%) of the underlying district regulations for an older subdivision of land caused by a conveyance or device of record prior to August 2, 1938, or a platted unrevoked subdivision recorded prior to August 2, 1938; and
(E)
the proposed alternative development does not result in an obvious departure from the aesthetic character of the immediate vicinity; and
(F)
the frontage dimension of the lot, parcel or tract is not less than: seventy-five percent (75%) of the minimum frontage required by the applicable district regulations; or eighty-five percent (85%) of the underlying district regulations for older subdivisions of land caused by a conveyance or device of record prior to August 2, 1938, or a platted unrevoked subdivision recorded prior to August 2, 1938, except that the frontage dimension of a flag-lot, parcel or tract shall be permitted to be reduced to the minimum width necessary to allow vehicular access as determined by the County; and
(G)
the resultant frontage dimension of the lot, parcel or tract provides vehicular ingress and egress to all resulting lots, parcels or tracts, including on-site access to emergency equipment; or
(2)
the proposed alternative development results in landscaped open space, community design, amenities or preservation of natural resources that enhances the function or aesthetic character of the immediate vicinity in a manner not otherwise achievable through application of the applicable district regulations, provided that:
(A)
the number of lots of the proposed alternative development does not exceed that normally permitted by the lot area dimensions of the underlying district regulations; and
(B)
the size and dimensions of each lot, parcel or tract in the proposed alternative development are sufficient to provide all setbacks required by the underlying district regulations, or, if applicable, any prior zoning actions for similar uses issued prior to the effective date of this ordinance (July 11, 2003); and
(C)
the area of each lot, parcel or tract is not less than eighty percent (80%) of the area required by the applicable district regulations; and
(D)
the proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity; and
(E)
the resultant frontage of the lot, parcel or tract provides vehicular ingress and egress to all resulting lots, parcels or tracts, including on-site access to emergency equipment, or
(3)
the proposed lot area and frontage is such that:
(A)
the proposed alternative development will not result in the creation of more than two (2) lots, parcels or tracts; and
(B)
the size and dimensions of each lot, parcel or tract are sufficient to provide all setbacks required by the applicable district regulations; and
(C)
no lot area shall be less than the smaller of:
(i)
ninety percent (90%) of the lot area required by the applicable district regulations; or
(ii)
the average area of the developed lots, parcels or tracts in the immediate vicinity within the same zoning district; and
(D)
the proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity; and
(E)
the resultant frontage provides vehicular ingress and egress to all resulting lots, parcels or tracts, including on-site access to emergency equipment.
(g)
An alternative maximum height of walls, hedges or fences for a commercial development shall be approved upon demonstration of the following:
(1)
no wall, hedge or fence shall exceed eight (8) feet in height when adjoining RU-5, RU-5A, BU, IU or OPD zoned lands; no wall, hedge or fence shall exceed six (6) feet when adjoining a discordant use, and
(2)
no wall, hedge or fence located in a front or side street setback required by the applicable district regulations shall exceed six (6) feet in height; and
(3)
the additional height of a proposed wall, hedge or fence will not obscure in whole or in part an existing view or vista to any landmark, natural area, or waterbody from any window or door of a building on an adjoining discordant use; and
(4)
proposed walls or fences shall be:
(A)
articulated to avoid the appearance of a "blank wall" when viewed from adjoining property, or
(B)
landscaped with landscaping that is at least three (3) feet in height at time of planting, located along the length of the wall between the wall and the adjoining property, accompanied by specific provision for the maintenance of the landscaping, such as but not limited to, an agreement from the landowner regarding its maintenance in recordable form, or
(C)
where facing a public right-of-way, set back at least two and one-half (2-½) feet from the right-of-way line and extensively landscaped with shrubs of a minimum of three (3) feet in height when measured immediately after planting, which will form a continuous, unbroken, solid, visual screen within one (1) year after time of planting; hedges of a minimum of three (3) feet in height immediately after planting, which will form a continuous, unbroken, solid, visual screen within one (1) year after time of planting; and/or climbing vines of a minimum of thirty-six (36) inches in height immediately after planting; and
(5)
proposed fences shall be constructed or installed so that all sides of the fence are "finished" in accordance with the applicable regulations; and
(6)
proposed fences are constructed of durable materials and are decorative; and
(7)
proposed fences in the front building line are not comprised of chain link or other wire mesh; and
(8)
safe sight distance triangles are maintained pursuant to this Code.
(h)
An alternative placement of a required perimeter wall setback from the property line(s) of a parcel where said property line adjoins or lies across the street right-of-way from a residential district, shall be approved after public hearing upon demonstration of the following:
(1)
the setback of the wall is the minimum distance necessary so as not to encroach into an existing utility or landscape easement(s); and
(2)
that visual screening for the wall by way of landscaping is included in the easement area to prevent graffiti vandalism in a manner provided by this Code; and
(3)
that a suitable mechanism for maintenance of the landscaped area by the property owner, tenant association or similar association, or special taxing district, be provided in the form of a recordable covenant running with the land.
(i)
An alternative opening in a wall otherwise required by this Code to be a solid, unbroken barrier when a parcel adjoins or lies adjacent to a residential district, shall be approved after public hearing upon demonstration of the following:
(1)
the width of the wall opening is the minimum width necessary for pedestrians to access the parcel from adjoining or adjacent residential development(s); and
(2)
the wall opening is immediately adjoining or adjacent to a residential lot, parcel or tract which is restricted in use as common open space.
(j)
An alternative reduction in the number of required parking spaces shall be approved after public hearing upon demonstration of the following:
(1)
the alternative reduction of the number of required parking spaces does not apply to parking spaces for the disabled, parking spaces for persons transporting small children, nor to bicycle racks or other means of storage; and
(2)
the total number of required parking spaces is not reduced below five percent (5%) for medical or dental office uses, and ten percent (10%) for other semi-professional office uses; and
(A)
the lot, parcel or tract is located within six hundred and sixty (660) feet of an existing transportation corridor such as a Major Roadway identified on the Land Use Plan (LUP) map, within one-quarter (¼) mile from existing rail transit stations or existing express busway stops; or
(B)
the hours of operation of multiple uses within the development vary and do not overlap and a recordable agreement is provided which restricts the hours of operation.
(3)
the alternative development involves a mixed-use project in which the number of off-street parking spaces is calculated by applying the Urban Land Institute (ULI) Shared Parking Methodology to the required number of parking spaces.
(k)
Notwithstanding the foregoing, no proposed alternative development shall be approved upon demonstration that the proposed alternative development:
(1)
will result in a significant diminution of the value of property in the immediate vicinity; or
(2)
will have substantial negative impact on public safety due to unsafe automobile movements, heightened vehicular-pedestrian conflicts, or heightened risk of fire; or
(3)
will result in a materially greater adverse impact on public services and facilities than the impact that would result from development of the same parcel pursuant to the underlying district regulations; or
(l)
Proposed alternative development under this subsection shall provide additional amenities or buffering to mitigate the impacts of the development as approved, where the amenities or buffering expressly required by this subsection are insufficient to mitigate the impacts of the development. The purpose of the amenities or buffering elements shall be to preserve and protect the economic viability of any enterprises proposed within the approved development and the quality of life of residents and business tenants of the immediate vicinity in a manner comparable to that ensured by the underlying district regulations. Examples of such amenities include but are not limited to: active or passive recreational facilities, landscaped open space over and above that normally required by the code, additional trees or landscaping, the inclusion of residential use(s), convenient pedestrian connection(s) to adjacent residential development(s), convenient covered bus stops or pick-up areas for transportation services, sidewalks (including improvements, linkages, or additional width), bicycle paths, buffer areas or berms, street furniture, undergrounding of utility lines, cohesive wall signage, and decorative street lighting. In determining which amenities or buffering elements are appropriate for a proposed commercial development, the following shall be considered:
(A)
the types of needs of the residents or business tenants of the immediate vicinity and the needs of the occupants of the parcel proposed for development that would likely be occasioned by the development, including, but not limited to, recreational, open space, transportation, aesthetic amenities, and buffering from adverse impacts; and
(B)
the proportionality between the impacts on the residents, business tenants or occupants of parcel(s) in the immediate vicinity and the amenities or buffering required. For example, a reduction in lot area for numerous lots may warrant the provision of additional landscape open space.
(21)
Alternative Site Development Option for Office Buildings, Laboratory Buildings and Associated Accessory Buildings and Structures. This subsection provides for the establishment of an alternative site development option, after public hearing, for office buildings, laboratory buildings and associated accessory buildings and structures, when such uses are permitted by the underlying district regulations, in the OPD zoning district, in accordance with the standards established herein. In considering any application for approval hereunder, the Community Zoning Appeals Board shall consider the same subject to approval of a site plan or such other plans as necessary to demonstrate compliance with the standards herein.
(a)
Purpose. The purpose of this subsection is to create objective standards to regulate the site-specific development of office buildings, laboratory buildings, associated accessory use buildings, and structures in the OPD zoning district. The standards provided in this subsection are alternatives to the generalized standards contained in regulations governing the OPD zoning district. The site development standards permit alternative patterns of site development in accordance with the Comprehensive Development Master Plan ("CDMP") where the public interest served by the underlying district regulations and CDMP will be served, and the objectives of the creative urban design, guidelines for urban form, or the preservation and enhancement of property values will be promoted, as demonstrated by the proposed alternative development's compliance with the standards of this subsection. A zoning application for development in compliance with the alternative standards shall be approved upon demonstration at public hearing that the proposed development is in compliance with the applicable alternative standards and does not contravene the enumerated public interest standards established herein.
(b)
For the purposes of this subsection, the following term shall have the following meanings:
"Discordant Use" means adjacent land uses which:
1)
are materially less intense or of a materially lesser density, or
2)
are materially different in their manner of hours of operation, or
3)
have a different zoning prefix, or
4)
contain an existing or approved use, which is otherwise allowable as of right in a different zoning district prefix.
(c)
Setbacks for a principal building, or accessory building or structure in the OPD, shall be approved after public hearing upon demonstration of the following:
(1)
the character and design of the proposed alternative development will not result in a material diminution of the privacy of adjoining property; and
(2)
the proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity, taking into account existing structures and open space; and
(3)
the proposed alternative development will not reduce the amount of open space on the parcel proposed for alternative development by more than twenty percent (20%) of the landscaped open space percentage required by the applicable district regulations; and
(4)
any area of shadow cast by the proposed alternative development upon an adjoining property will be no larger than would be cast by a structure constructed pursuant to the underlying district regulations, or will have no more than a de minimus impact on the use and enjoyment of the adjoining parcel of land; and
(5)
the proposed alternative development will not involve the installation or operation of any mechanical equipment closer to the adjoining parcel of land than any other portion of the proposed alternative development, unless such equipment is located within an enclosed, soundproofing structure and if located on the roof of such an alternative development shall be screened from ground view and from view at the level in which the installations are located, and shall be designed as an integral part of and harmonious with the building design; and
(6)
the proposed alternative development will not involve any outdoor lighting fixture that casts light on an adjoining parcel of land at an intensity greater than permitted by this Code; and
(7)
the architectural design, scale, mass, and building materials of any proposed structure(s) or addition(s) are aesthetically harmonious with that of other existing or proposed structure(s) or building(s) on the parcel proposed for alternative development; and
(8)
the wall(s) of any building within a front, side street or double frontage setback area or within a setback area adjacent to a discordant use, required by the underlying district regulations, shall be improved with architectural details and treatments that avoid the appearance of a "blank wall"; and
(9)
the proposed alternative development will not result in the destruction or removal of mature trees within a setback required by the underlying district regulations, with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the same side of the lot, parcel or tract; and
(10)
any windows or doors in any building(s) to be located within an interior side or rear setback required by the underlying district regulations shall be designed and located so that they are not aligned directly across from facing windows or doors on building(s) of a discordant use located on an adjoining parcel of land; and
(11)
total floor area ratio shall not be increased by more than ten percent (10%) of the floor area ratio permitted by the underlying district regulations; and
(12)
the area within an interior side or rear setback required by the underlying district regulations located adjacent to a discordant use will not be used for off-street parking except:
(A)
in an enclosed garage where the garage door is located so that it is not aligned directly across from facing windows or doors on buildings of a discordant use located on an adjoining parcel of land; or
(B)
if the off-street parking is buffered from property that abuts the setback area by a solid wall at least six (6) feet in height along the area of pavement and parking, with either:
(i)
articulation to avoid the appearance of a "blank wall" when viewed from the adjoining property, or
(ii)
landscaping that is at least three (3) feet in height at time of planting, located along the length of the wall between the wall and the adjoining property, accompanied by specific provision for the maintenance of the landscaping, such as but not limited to, an agreement regarding its maintenance in recordable form from the adjoining landowner; and
(13)
any structure within an interior side setback required by the underlying district regulations:
(A)
is screened from adjoining property by landscape material of sufficient size and composition to obscure at least eighty percent (80%) (if located adjoining or adjacent to a discordant use) of the proposed alternative development to a height of the lower fourteen (14) feet of such structure(s) at time of planting; or
(B)
is screened from adjoining property by an opaque fence or wall at least five (5) feet in height, if located adjoining or adjacent to a discordant use, that meets the standards set forth in paragraph (g) herein; and
(14)
any structure in the OPD district not attached to a principal building and proposed to be located within a setback required by the underlying district regulations shall be separated from any other structure by at least 10 feet or the minimum distance to comply with fire safety standards, whichever is greater; and
(15)
when a principal building, or accessory building in the OPD district, is proposed to be located within a setback required by the underlying district regulations, any enclosed portion of the upper floor of such building shall not extend beyond the first floor of such building within the setback; and
(16)
safe sight distance triangles shall be maintained as required by this Code; and
(17)
the parcel proposed for alternative development shall continue to provide the required number of on-site parking spaces as required by this Code; and
(18)
the parcel proposed for alternative development shall satisfy underlying district regulations or, if applicable, prior zoning actions issued prior to the effective date of this ordinance regulating setbacks, lot area and lot frontage, floor area ratio, landscaped open space and structure height; and
(19)
the proposed development will meet the following:
(A)
interior side setbacks shall not be reduced by more than twenty-five percent (25%) of the side setbacks required by the underlying district regulations, or the minimum distance required to comply with fire safety standards, whichever is greater when the adjoining parcel of land is a RU-5, RU-5A, BU, IU, or OPD district or use provided, however, interior side setbacks shall not be reduced by more than fifteen percent (15%) of the interior side setbacks required by the underlying district regulations when the adjoining parcel of land allows a discordant use.
(B)
side street setbacks shall not be reduced by more than twenty-five percent (25%) of the underlying district regulations;
(C)
front setbacks (including double-frontage setbacks) shall not be reduced by more than ten percent (10%) of the setbacks required by the underlying district regulations; and
(D)
rear setbacks shall not be reduced below twenty-five percent (25%) of the rear setback required by the underlying district regulations, or the minimum distance required to comply with fire safety standards, whichever is greater, when the adjoining parcel of land is a RU-5, RU-5A, BU, IU, or OPD district or use provided, however, rear setbacks shall not be reduced below fifteen percent (15%) of the rear setback required by the underlying district regulations when the adjoining parcel of land allows a discordant use.
(E)
setbacks between building(s) shall not be reduced below 10 feet, or the minimum distance required to comply with fire safety standards, whichever is greater.
(d)
An alternative setback for paved parking area(s) shall be approved upon demonstration of the following:
(1)
setback for paved parking area(s) shall not be reduced by more than twenty-five percent (25%) of the underlying district regulations; and
(2)
the proposed alternative development proposes an increase of twenty percent (20%) of the number of street trees required by the underlying district regulations; and
(3)
a prorata additional number of shrubs shall be provided commensurate with the trees in (2) above; said shrubs to be of a number, type and size as required by Chapter 18A.
(e)
An alternative floor area ratio for a building(s) shall be approved upon demonstration of the following:
(1)
total lot coverage or floor area ratio shall not be increased by more than ten percent (10%) of the lot coverage or floor area permitted by the underlying district regulations; and
(2)
the proposed alternative development will not result in the destruction or removal of mature trees on the lot with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the lot; and
(3)
the increase in lot coverage or floor area ratio will not result in a principal buildings, or accessory building(s) in the RU-5A district, with an architectural design, scale, mass or building materials that are not aesthetically harmonious with that of other existing or proposed structures in the immediate vicinity; and
(4)
the proposed alternative development will not result in an obvious departure from the aesthetic character of in the immediate vicinity.
(f)
An alternative amount of landscaped open space shall be approved upon demonstration of the following:
(1)
landscaped open space shall not be decreased by more than twenty percent (20%) of the landscape open space required by the applicable district regulations; and
(2)
the proposed alternative development will not result in the destruction or removal of mature trees on the lot with a diameter at breast height of greater than ten (10) inches, unless the trees are among those listed in Section 24-60(4)(f) of this Code, or the trees are relocated in a manner that preserves the aesthetic and shade qualities of the lot; and
(3)
the landscaped open space provided shall be used to shade and cool, direct wind movements, enhance architectural features, relate structure design to site, visually screen non-compatible uses and block noise generated by major roadways and intense use areas; and
(4)
the landscaped open space provided shall relate to any natural characteristics in such a way as to preserve and enhance their scenic and functional qualities; and
(5)
the proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity; and
(6)
the installation of the required percentage of landscaped open space on a parcel containing a previously approved and existing building, would necessitate a decrease in the number of parking spaces provided, or necessitate a decrease in the square footage of an existing building on the site; and
(7)
the total number of lot or street trees shall be increased by twenty percent (20%) greater than the number required by the underlying zoning district regulations, or by an additional twenty percent (20%) of the number of trees previously approved, whichever number is greater, and provided such trees are provided on the site or within the adjacent rights-of-way, respectively; said trees to be of a type and size as required by Chapter 18A; and
(8)
a prorata additional number of shrubs shall be provided commensurate with the trees in (7) above, said shrubs to be of a number, type and size as required by Chapter 18A.
(g)
An alternative lot area and frontage shall be approved upon demonstration of at least one of the following:
(1)
the proposed lot area and frontage shall permit the development or redevelopment of a structure(s) on a lot, parcel or tract of land where such structure(s) would not otherwise be permitted by the underlying district regulations due to the size or configuration of the parcel proposed for alternative development, provided that:
(A)
the lot, parcel or tract is under lawful separate ownership from any contiguous property; and
(B)
the proposed alternative development will not result in the further subdivision of land; and
(C)
the size and dimensions of the lot, parcel or tract are sufficient to provide all setbacks required by the underlying district regulations; and
(D)
the area of the lot, parcel or tract is not less than: seventy-five percent (75%) of the minimum lot area required by the underlying district regulations; and
(E)
the proposed alternative development does not result in an obvious departure from the aesthetic character of the immediate vicinity; and
(F)
the frontage dimension of the lot, parcel or tract is not less than: seventy-five percent (75%) of the minimum frontage required by the applicable district regulations; except that the frontage dimension of a flag-lot, parcel or tract shall be permitted to be reduced to the minimum width necessary to allow vehicular access as determined by the County; and
(G)
the resultant frontage dimension of the lot, parcel or tract provides vehicular ingress and egress to all resulting lots, parcels or tracts, including on-site access to emergency equipment; or
(2)
the proposed alternative development results in landscaped open space, community design, amenities or preservation of natural resources that enhances the function or aesthetic character of the immediate vicinity in a manner not otherwise achievable through application of the applicable district regulations, provided that:
(A)
the number of lots of the proposed alternative development does not exceed that normally permitted by the lot area dimensions of the underlying district regulations; and
(B)
the size and dimensions of each lot, parcel or tract in the proposed alternative development are sufficient to provide all setbacks required by the underlying district regulations, or, if applicable, any prior zoning actions for similar uses issued prior to the effective date of this ordinance (September 19, 2003); and
(C)
the area of each lot, parcel or tract is not less than eighty percent (80%) of the area required by the applicable district regulations; and
(D)
the proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity; and
(E)
the resultant frontage of the lot, parcel or tract provides vehicular ingress and egress to all resulting lots, parcels or tracts, including on-site access to emergency equipment; or
(3)
the proposed lot area and frontage is such that:
(A)
the proposed alternative development will not result in the creation of more than two (2) lots, parcels or tracts; and
(B)
the size and dimensions of each lot, parcel or tract are sufficient to provide all setbacks required by the applicable district regulations; and
(C)
no lot area shall be less than the smaller of:
(i)
ninety percent (90%) of the lot area required by the applicable district regulations; or
(ii)
the average area of the developed lots, parcels or tracts in the immediate vicinity within the same zoning district; and
(D)
the proposed alternative development will not result in an obvious departure from the aesthetic character of the immediate vicinity; and
(E)
the resultant frontage provides vehicular ingress and egress to all resulting lots, parcels or tracts, including on-site access to emergency equipment.
(h)
An alternative reduction in the number of required parking spaces shall be approved after public hearing upon demonstration of the following:
(1)
the alternative reduction of the number of required parking spaces does not apply to parking spaces for the disabled, parking spaces for persons transporting small children, nor to bicycle racks or other means of storage; and
(2)
the total number of required parking spaces is not reduced below five percent (5%) for medical or dental office uses, and ten percent (10%) for other office, laboratory or associated accessory uses; and
(A)
the lot, parcel or tract is located within six hundred and sixty (660) feet of an existing transportation corridor such as a Major Roadway identified on the Land Use Plan (LUP) map, within one-quarter ( 1 / 4 ) mile from existing rail transit stations or existing express busway stops; or
(B)
the hours of operation of multiple uses within the development vary and do not overlap and a recordable agreement is provided which restricts the hours of operation.
(3)
the alternative development involves a mixed-use project in which the number of off-street parking spaces is calculated by applying the Urban Land Institute (ULI) Shared Parking Methodology to the required number of parking spaces.
(i)
Notwithstanding the foregoing, no proposed alternative development shall be approved upon demonstration that the proposed alternative development:
(1)
will result in a significant diminution of the value of property in the immediate vicinity; or
(2)
will have substantial negative impact on public safety due to unsafe automobile movements, heightened vehicular-pedestrian conflicts, or heightened risk of fire; or
(3)
will result in a materially greater adverse impact on public services and facilities than the impact that would result from development of the same parcel pursuant to the underlying district regulations; or
(l)
Proposed alternative development under this subsection shall provide additional amenities or buffering to mitigate the impacts of the development as approved, where the amenities or buffering expressly required by this subsection are insufficient to mitigate the impacts of the development. The purpose of the amenities or buffering elements shall be to preserve and protect the economic viability of any enterprises proposed within the approved development and the quality of life of residents and business tenants of the immediate vicinity in a manner comparable to that ensured by the underlying district regulations. Examples of such amenities include but are not limited to: active or passive recreational facilities, landscaped open space over and above that normally required by the code, additional trees or landscaping, convenient pedestrian connection(s) to adjacent residential development(s), convenient covered bus stops or pick-up areas for transportation services, sidewalks (including improvements, linkages, or additional width), bicycle paths, buffer areas or berms, street furniture, undergrounding of utility lines, cohesive wall signage, and decorative street lighting. In determining which amenities or buffering elements are appropriate for a proposed office park development, the following shall be considered:
(A)
the types of needs of the residents or business tenants of the immediate vicinity and the needs of the occupants of the parcel proposed for development that would likely be occasioned by the development, including, but not limited to, recreational, open space, transportation, aesthetic amenities, and buffering from adverse impacts; and
(B)
the proportionality between the impacts on the residents, business tenants or occupants of parcel(s) in the immediate vicinity and the amenities or buffering required. For example, a reduction in lot area for numerous lots may warrant the provision of additional landscape open space.
(B)
Conditions, restrictions and limitations.
(1)
In granting any application for increase or decrease in minimum space footage requirements, special exception, new uses or unusual use, use or nonuse variances or variances from airport regulations, the appropriate Community Zoning Appeals Boards may prescribe any reasonable conditions, restrictions and limitations it deems necessary or desirable, in order to maintain the plan of the area and compatibility therewith. The Community Zoning Appeals Boards may revoke, modify or change any resolution heretofore or hereafter adopted granting a special permit or a special exception, new uses, unusual use or variance, if upon, application filed at any time by the Director and after public hearing, the Community Zoning Appeals Board finds that there has been a violation of any imposed conditions, restrictions or limitations in any such resolution; provided, such public hearing shall not be held until published notice provided by Section 33-310 hereof has first been given; provided further, if the Director, upon written request of any aggrieved party, refuses or fails to make such an application, such aggrieved party may request the Board of County Commissioners, through the County Manager, to instruct the Director to do so.
(2)
Any person who shall violate or fail to comply with any conditions, restrictions or limitations contained in any resolution or decision heretofore or hereafter adopted, granting a special permit or special exception, new uses, unusual use or variance or with any of the requirements of such a resolution, shall upon conviction thereof in the appropriate court be punished by a fine not to exceed five hundred dollars ($500.00) or by imprisonment in the County Jail for not more than sixty (60) days, or by both such fine and imprisonment. Each day of violation or noncompliance shall constitute a separate offense.
(C)
Reserved.
(D)
No document prepared or relied upon by an expert shall be admitted into evidence at a public hearing unless such document shall have been filed with the Director at least ten (10) days prior to the public hearing. No expert opinion testimony shall be admitted into evidence at a public hearing unless a written summary of the testimony setting out the substance and basis of such testimony shall have been filed with the Director at least ten (10) days prior to the public hearing.
(E)
Takings and vested rights.
(1)
No argument shall be made or evidence presented to a Community Zoning Appeals Board or the Board of County Commissioners to the effect that a decision may result in a temporary or permanent taking of private property or abrogation of vested rights unless the person making such argument: (1) files a sworn statement and supporting documents pursuant to Section 2-114.1 with the coordinator of the Development Impact Committee not less than forty-five (45) calendar days prior to the first hearing on the application, and (2) exhausts the remedy afforded by Section 2-114.1. Pursuant to Section 33-314(C)(2), the Board of County Commissioners has direct jurisdiction over the application to which such taking or vested rights argument pertains. Any individual or entity having an interest in property which is the subject of a zoning application filed by a County official shall be entitled to file an application for a taking or vested rights determination pursuant to Section 2-114.1 of the Code.
(2)
Any individual or entity having an interest in property which is the subject of a zoning application filed by a County official shall be entitled to file an application for a taking or vested rights determination pursuant to Section 2-114.1 of the Code without payment of a fee. Whenever an application for zoning action is filed by a County official, the County Applicant shall provide notice by certified mail, return receipt requested, to the owners of record of any and all property to which the application pertains. Said notice shall include a copy of Section 33-311 and Section 2-114.1 of the Code. Any claimant having an interest in property subject to a County zoning application who contends that action thereon will constitute a taking or abrogation of vested rights shall file a notice of invoking administrative remedy with the Developmental Impact Committee pursuant to Section 2-114.1(c)(1) of the Code within thirty (30) days after receipt of the certified mail notice required by this section. Said thirty-day filing period may be extended by the County Commission upon a showing of good cause. Application to show good cause shall be upon a form prescribed by the Director and pursuant to the same process used for fee waivers.
(3)
The separate hearing option of Section 2-114.1(d)(5) shall be applicable and no decision contrary to the position of one (1) asserting a taking or abrogation of vested rights shall be final as to such individual or entity unless and until the remedy afforded by Section 2-114.1 has been exhausted or waived.
(F)
Detriments or benefits shall not be denied consideration ont he grounds that they are indirect, intangible or not readily quantifiable. In evaluating the application, among other factors related to the general welfare, whether, and the extent to which:
(1)
The development permitted by the application, if granted, conforms to the Comprehensive Development Master Plan for Miami-Dade County, Florida; is consistent with applicable area or neighborhood studies or plans, and would serve a public benefit warranting the granting of the application at the time it is considered;
(2)
The development permitted by the application, if granted, will have a favorable or unfavorable impact on the environmental and natural resources of Miami-Dade County, including consideration of the means and estimated cost necessary to minimize the adverse impacts; the extent to which alternatives to alleviate adverse impacts may have a substantial impact on the natural and human environment; and whether any irreversible or irretrievable commitment of natural resources will occur as a result of the proposed development;
(3)
The development permitted by the application, if granted, will have a favorable or unfavorable impact on the economy of Miami-Dade County, Florida;
(4)
The development permitted by the application, if granted, will efficiently use or unduly burden water, sewer, solid waste disposal, recreation, education or other necessary public facilities which have been constructed or planned and budgeted for construction;
(5)
The development permitted by the application, if granted, will efficiently use or unduly burden or affect public transportation facilities, including mass transit, roads, streets and highways which have been constructed or planned and budgeted for construction, and if the development is or will be accessible by public or private roads, streets or highways.
(G)
The Community Zoning Appeals Boards may defer action on any hearing in order to inspect the site in question, to refer the matter back to the Developmental Impact Committee for further consideration and recommendation, to refer the matter to any department for its recommendation, or for any other justifiable and reasonable reason.
(Ord. No. 60-14, 4-19-60; Ord. No. 61-30, § 1, 6-27-61; Ord. No. 63-24, § 1, 6-18-63; Ord. No. 64-65, § 4, 12-15-64; Ord. No. 66-66, § 3, 12-20-66; Ord. No. 71-42, § 1, 5-18-71; Ord. No. 72-20, § 2, 3-21-72; Ord. No. 73-28, § 1, 3-20-73; Ord. No. 74-20, § 4, 4-3-74; Ord. No. 74-40, § 3, 6-4-74; Ord. No. 75-47, § 5, 6-18-75; Ord. No. 77-12, § 2, 2-15-77; Ord. No. 77-68, § 2, 9-20-77; Ord. No. 78-10, § 1, 3-21-78; Ord. No. 87-6, § 1, 2-17-87; Ord. No. 87-75, § 2, 11-3-87; Ord. No. 89-10, § 5, 2-21-89; Ord. No. 92-150, § 3, 12-1-92; Ord. No. 94-37, § 2, 3-3-94; Ord. No. 95-215, § 1, 12-5-95; Ord. No. 96-127, § 35, 9-4-96; Ord. No. 97-9, § 2, 2-4-97; Ord. No. 97-198, § 2, 11-4-97; Ord. No. 98-175, § 2, 12-3-98; Ord. No. 99-166, § 4, 12-16-99; Ord. No. 00-31, § 2, 2-24-00; Ord. No. 00-51, § 1, 4-11-00; Ord. No. 01-121, § 1, 7-24-01; Ord. No. 02-56, § 1, 4-23-02; Ord. No. 02-77, § 1, 5-7-02; Ord. No. 02-115, § 1, 6-18-02; Ord. No. 02-138, §§ 1, 3, 7-23-02; Ord. No. 03-91, §§ 2, 3, 4-22-03; Ord. No. 03-92, § 1, 4-22-03; Ord. No. 03-93, § 4, 4-22-03; Ord. No. 03-118, § 1, 5-6-03; Ord. No. 03-119, § 1, 5-6-03; Ord. No. 03-120, § 1, 5-6-03; Ord. No. 03-134, § 1, 6-3-03; Ord. No. 03-162, § 1, 7-8-03; Ord. No. 03-163, § 2, 7-8-03; Ord. No. 03-185, § 1, 9-9-03; Ord. No. 04-108, § 2, 6-8-04; Ord. No. 04-216, § 1, 2, 12-2-04; Ord. No. 04-217, § 12, 12-2-04; Ord. No. 05-143, § 11, 7-7-05; Ord. No. 09-76, § 3, 9-1-09; Ord. No. 10-58, § 10, 9-21-10; Ord. No. 11-86, § 4, 11-15-11; Ord. No. 12-49, § 2, 7-3-12; Ord. No. R-13-09, § 1, 2-5-13; Ord. No. 13-16, § 8, 2-5-13; Ord. No. 15-128, § 2, 11-3-15; Ord. No. 17-06, § 3, 1-24-17; Ord. No. 18-136, § 1, 11-8-18)