§ 33-402. Variances.

(1)

Any person desiring to erect or increase the height of any structure, or permit the growth of any tree or otherwise use his property not in accordance with the regulations prescribed in this article may apply to the appropriate zoning board for a variance from such regulations as provided and prescribed under Article XXXVI of Chapter 33, Code of Miami-Dade County, Florida. Applications for variances or any other authorization for any construction or use not authorized by Sections 33-392, 33-393, 33-394, 33-395, 33-396 or 33-397 shall be submitted and determined in accordance with the procedures, provisions and requirements set forth in Florida Statutes, Section 333.03 and Sections 333.07 through and including 333.11 (1998) or successor legislation. For the purpose of zoning applications filed under this chapter, the appropriate Community Zoning Appeals Board shall constitute the board of adjustment pursuant to Florida Statutes, Section 333.10, subject to all procedures applicable to community zoning appeals boards.

(2)

At the time of filing the application, the applicant shall forward to the Florida Department of Transportation by certified mail, return receipt requested, a copy of the application for the Department's review and comment, if any. A copy of the return receipt must be filed with the Director of the Miami-Dade County Department of Planning and Zoning at the time of filing the application. No public hearing on the application may commence less than forty-six (46) days after receipt of the application by the Department of Transportation. Notwithstanding any provision of the Code of Miami-Dade County, failure to comply with the requirements of this subsection shall be grounds for appeal of a decision rendered by the community zoning appeals board by an applicant, governing body of any municipality, if affected, or any aggrieved party as defined in Section 33-313, Code of Miami-Dade County, the Director or the County Manager to the Board of County Commissioners. The provisions of Section 33-313 shall govern all appeals brought under this subsection.

(3)

No application shall be considered unless a written evaluation and recommendation of the director of the aviation department of his or her designee has been provided to the applicable board. For purposes of applications brought under this section, the procedures of this section shall be in addition to any procedures set forth elsewhere in the Code of Miami-Dade County.

(4)

Approval of such variances shall be limited to those cases in which it is duly found that a literal application or enforcement of the regulations would result in practical difficulty or unnecessary hardship and the relief granted would not be contrary to the public interest but would do substantial justice and be in accordance with the spirit of this article, and such zoning board is hereby admonished that the intent and purpose of this article is to promote the health, safety and general welfare of the inhabitants of Miami-Dade County, Florida, by preventing the creation of an airport hazard or of a hazard to air navigation, thereby protecting the lives and property of users of Kendall Tamiami Executive Airport and of occupants of land in its vicinity and preventing destruction or impairment of the utility of the airport and the public investment therein.

(5)

Construction of any educational facility is prohibited at either end of a runway of Kendall-Tamiami Executive Airport within an area which extends 5 miles in a direct line along the centerline of the runway, and which has a width measuring one-half the length of the runway. In addition to any findings required in this chapter, variances approving construction of an educational facility within the delineated area shall only be granted when the appropriate zoning board makes specific findings detailing how the public policy reasons for allowing construction outweigh health and safety concerns prohibiting such a location.

(6)

Notwithstanding the foregoing provisions of this section, in granting any permit or variance under this article, the Director or the appropriate board shall require the owner of the structure or tree for which a permit or variance is being sought, to install, operate and maintain thereon, at the owners sole expense, such marking and lighting as may be necessary to indicate to aircraft pilots the presence of an obstruction, such marking and lighting to conform to the specific standards established by rule of the Department of Transportation.

(7)

Notwithstanding any provision contained in any section of this Code, the Board of County Commissioners shall have jurisdiction over any appeal filed by the County Manager from a decision of a Community Zoning Appeals Board rendered pursuant to this section where it is the opinion of the County Manager that a Community Zoning Appeals Board's resolution is incompatible with aviation activity or aviation safety.

(Ord. No. 69-40, § 13, 7-9-69; Ord. No. 99-118, § 1, 9-21-99)