§ 33-310.1. Administrative modification or elimination of conditions and restrictive covenants.
A.
Standards. The Director is authorized to consider and approve 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 restrictive covenant, or part thereof, accepted at public hearing, where the requirements of at least one of the following subsections have been demonstrated. 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.
Substantial Compliance With Previous Approval. The Director 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 proposed modification or elimination will result in substantial compliance with the previous zoning action regarding a site plan, as demonstrated by all of the following:
(A)
Development density and intensity have not materially changed, in that:
1.
the number of buildings is not increased by more than 10 percent;
2.
the number of stories is the same or fewer;
3.
the height of the building(s) is the same or less;
4.
the number of units is the same or fewer;
5.
the lot coverage and floor area ratio are the same or less;
6.
the number of bedrooms and corresponding parking spaces may be increased or decreased by as much as 10%, based on the entire plan, provided the plan complies with all other requirements of this subsection and of this chapter; and
7.
density or intensity (floor area ratio) may be transferred from one building to another or from one stage of development to another, provided that the total floor area ratio is not changed.
(B)
Design has not materially changed, in that:
1.
the roadway patterns, including ingress-egress points, are in the same general location as shown on the original plans, and are no closer to the rear or interior side property lines than shown on the original plans;
2.
the parking area is in the same general location and configuration;
3.
the building setbacks are the same or greater distance from perimeter property lines, except that the building setbacks for detached single-family development, zero lot line, rowhouse, townhouse and cluster development may also be decreased, provided that such decrease is limited such that the resulting setback distance will be the greater of either
(a)
the underlying zoning district regulations, or
(b)
any condition or restrictive covenant regulating the setback for which a substantial compliance determination is sought;
4.
the landscaped open space is in the same general location, is of the same or greater amount, and is configured in a manner that does not diminish a previously intended buffering effect;
5.
the proposed perimeter walls and/or fences are in the same general location and of a comparable type and design as previously approved;
6.
elevations and renderings of buildings have substantially similar architectural expressions as those shown on the approved plans, except that single use outparcel buildings fronting on section line. half-section line, or quarter-section line roads in business zoning districts shall not be subject to this requirement;
7.
recreational facilities, if shown on plans approved by a prior zoning action, either remain the same or are converted from one recreational use to another;
8.
if recreational facilities were not shown in the approved plans, they may be added, provided there is no increase in lot coverage or decrease in required open space and such facilities are located internally within the proposed development;
9.
if a variance for signage has been granted, the proposed sign(s) are no greater in size and are placed in the same general location on the site as approved by zoning action. An entrance sign location may be moved the same proportional distance as a relocated entrance drive;
10.
the proposed changes do not have the effect of creating any noncompliance or nonconformity with the strict application of the Zoning Code that were not previously approved at public hearing, or of expanding the scope of existing variances, alternative site development options, or other approvals pursuant to alternative development standards such that they would differ to a greater degree from the strict application of the zoning code;
11.
additional outparcels may be added where:
(a)
there is no increase in the project's total floor area ratio or lot coverage;
(b)
there is no reduction in the total amount of landscaped open space; and
(c)
addition of the outparcel does not result in noncompliance with any other provision of this subsection on any other portion of the subject property.
12.
reductions in the number of parking spaces on the site are permitted if sufficient parking spaces are provided to satisfy the requirements of this Code.
(C)
The slope of any lake for which a modification is requested complies with Section 33-16 and all other applicable provisions of this Code.
II.
Reformation of Resolutions and Declarations of Restrictive Covenants to Correct Clerical or Scrivener's Errors.
(A)
The Director shall approve an application to reform a clerical or scrivener's error, in a prior zoning action, including an error in an application, declaration of restrictive covenants accepted upon public hearing, or notice, which error causes the zoning action not to accurately reflect the board's intent, and where it is demonstrated that all of the following requirements are met:
1.
the reformation shall not include a change of judgment, policy, or prior intent of the board;
2.
prior to the conclusion of the public hearing at which the zoning action for which reformation is sought was taken, the current applicant either did not know of the error, or knew of the error and made it known to the adopting board;
3.
the reformation of the previous resolution or declaration is essential to insure that the zoning action reflects the intent of the adopting board;
4.
the record, including, but not limited to, the staff recommendation, minutes, and motion, evidences the clear intent of the board;
5.
the substance of the decision of the board was evident at the time of the adoption of the zoning action, and there was no intent to deceive the public or the board on the part of the current applicant at any time;
6.
failure to approve the reformation would lead to an unjust result;
7.
the error in the prior zoning action did not mislead anyone in a way that would cause them to be prejudiced by the reformation; and
8.
any errors related to public notice did not affect the legal sufficiency of the required notice.
(B)
Notwithstanding the foregoing provisions, the Director, within thirty (30) days of the transmittal of a resolution, may reform a clerical or scrivener's error in a zoning action including a declaration of restrictive covenants accepted upon public hearing, without public notice, if:
1.
the error is not related to public notice, and
2.
the error causes the resolution or declaration as written to inaccurately reflect the clear decision of the board.
(C)
A reformed zoning action shall relate back to the original zoning action and the effective date of the corrected language shall be deemed to be the same as the effective date of the previous resolution.
III.
Modification or Elimination of Conditions and Restrictive Covenants Associated with Voluntarily Abandoned Zoning Actions. The Director shall approve an application to modify or eliminate a condition or part thereof, or a restrictive covenant or part thereof (except where the covenant requires a public hearing), where it is demonstrated by the following that the condition, restrictive covenant or part thereof was imposed to mitigate the adverse impacts of a zoning action which 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, that the applicant intends to abandon the zoning action and all rights thereunder, and that no material changes to the character or use of the land have ever been undertaken pursuant to the zoning action;
(B)
the development rights granted by the zoning action have been voluntarily abandoned in writing in a form approved by the Director;
(C)
the zoning action which imposed or accepted the condition or restrictive covenant was not a district boundary change; and
(D)
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.
IV.
Modification or Elimination of Conditions and Restrictive Covenants That Are Satisfied or Moot. The Director shall approve an application to modify or eliminate a condition or part thereof, or a restrictive covenant or part thereof (except where the covenant requires a public hearing), where it is demonstrated by 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 set forth in the covenant is satisfied. Applications under this paragraph must be accompanied by a sworn affidavit that the conditions of this subsection have been 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 any of the four (4) following:
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.
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 involves 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 approval, and accepted by the County.
V.
Modification or Elimination of Conditions and Restrictive Covenants When No New Adverse Impacts Will Result. The Director shall approve an application to modify an approved site plan, or modify or eliminate a condition or part thereof, or a restrictive covenant or part thereof (except where the covenant requires a public hearing), where it is demonstrated by the following that the modification or elimination will not result in a material new adverse impact on the public health, safety, welfare, or aesthetic values:
(A)
The proposed modification or elimination does not contravene or eliminate an express prohibition or timing or phasing requirement contained in the prior zoning action;
(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 ten (10) percent in trips generated above that generated by the approved development, except that trips generated in excess of ten (10) percent 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 ten (10) percent or one-fifth (frax;1;5;) acre, whichever is greater, except that demand in excess of ten (10) percent or one-fifth (frax;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 ten (10) percent;
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 (10) percent, 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 greater than ten (10) percent;
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 square footage on the subject property of no more than ten (10) percent for non-residential uses;
11.
the modification or elimination will not result in any additional residential units.
12.
the modification or elimination will result in a building height increase of no more than one (1) story;
13.
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;
14.
the modification or elimination will not result in any material decrease in the privacy enjoyed by adjoining properties;
15.
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;
16.
the modification or elimination will not result in any material increase in the potential for vehicular-pedestrian conflicts;
17.
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;
18.
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;
19.
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;
20.
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;
21.
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;
22.
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
23.
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.
(D)
The subject property complies with all other applicable requirements of prior zoning actions and this Code.
VI.
Modification of Conditions and Restrictive Covenants to Extend Timing or Phasing Deadlines. The Director shall approve an application to modify a condition or part thereof, or a restrictive covenant or part thereof (except where the covenant requires a public hearing) that is related solely to the timing or phasing of development, where the applicant demonstrates satisfaction of one of the following two requirements:
(A)
The applicant has been reasonably diligent in fulfilling the requirements of the condition or restrictive covenant, but is unable to perform within the time set forth in the condition or restrictive covenant, and
1.
No enforcement actions are pending with regard to the timing or phasing condition or covenant; and
2.
The condition or restrictive covenant was not imposed to enforce compliance with an obligation that was imposed or accepted prior to the zoning action in which the condition or restrictive covenant sought to be modified was imposed or accepted; and
3.
The extension of time or modification of phasing is:
a.
no greater than fifty (50) percent of the time frame set forth in the condition or restrictive covenant or six (6) months, whichever is less; or
b.
no greater than ten (10) percent of the number of residential units (if the time frame or phasing schedule is set forth in terms of completion of residential units) or twenty-five (25) residential units, whichever is less; or
(B)
Development pursuant to the zoning action has not proceeded because of a pending appeal or pending litigation regarding the zoning action, and the application secks only an extension of time or modification of phasing for the length of time that development has not proceeded due to such appeal or litigation.
B.
Procedures for Administrative Determinations.
(1)
Applications. An application for administrative determination of substantial compliance with a prior administrative approval or zoning action, for reformation to correct a clerical or scrivener's error, for modification or elimination of conditions and restrictive covenants associated with voluntarily abandoned zoning actions or administrative approvals, or for modification or elimination of conditions or restrictive covenants which are satisfied or moot, or for modification or elimination of conditions or restrictive covenants where no new adverse impacts will result, or for modifications of conditions or restrictive covenants to extend timing or phasing deadlines, or for parts of any of the foregoing, shall be submitted to the Department on a form required by the Director. If the application involves a restrictive covenant, the application shall demonstrate that any procedural or other consent or approval requirements to modify or eliminate the restrictive covenant have been satisfied.
(2)
Notice. Within fifteen (15) days after the determination, notice of the Director's decision shall be published in a newspaper of general circulation; except that substantial compliance determinations shall be published in the newspaper of largest circulation in Miami-Dade County or a section or supplement in the newspaper of largest circulation in Miami-Dade County distributed only in the locality where the property subject to the application lies. Additionally, for applications for administrative modification or elimination of conditions and restrictive covenants associated with voluntarily abandoned zoning actions or administrative approvals, or conditions or restrictive covenants which are satisfied or moot, or for modification or elimination of conditions or restrictive covenants where no new adverse impacts will result, or for modifications of conditions or restrictive covenants to extend timing or phasing deadlines, mailed written notice shall be provided to all property owners of record, as reflected on the Miami-Dade County Property Appraiser's tax roll as updated, within the same radius of the property as required to be noticed for the zoning action adopting or accepting the condition or restrictive covenant, or such greater distance as the Director may prescribe.
(3)
Appeals. Any aggrieved person may appeal the Director's decision pursuant to Section 33-314 within thirty (30) days after the date of newspaper publication. For purposes of this section, an applicant for a substantial compliance determination shall not be considered an aggrieved person. If no timely appeal is taken, the decision shall become final, and the necessary changes shall be made upon the zoning maps and records. Any modifications or releases of recorded restrictive covenants, or parts thereof, shall be promptly recorded in the public records of Miami-Dade County, Florida.
(Ord. No. 03-93, § 3, 4-22-03; Ord. No. 13-16, § 7, 2-5-13; Ord. No. 14-24, § 2, 3-4-14)