§ 33-342. Variances and exceptions limited.

(1)

Any person desiring to use property not in accordance with the land use or any other regulations prescribed in this article, shall follow the procedures set forth below for a variance or exception from such regulations, except in such instances where this article expressly prohibits variances or exceptions from certain regulations.

(2)

Applications expressly for variances, exceptions, or any other authorization for any structure or use not expressly authorized by this article shall be submitted and determined in accordance with the procedures provisions and requirements set forth herein and in Florida Statutes, Section 333.03 and Sections 333.07 through and including 333.11 (1998), as may be amended from time to time. Notwithstanding any other provisions of the Code of Miami-Dade County to the contrary, for the purpose of zoning applications within the incorporated and the unincorporated area filed under this Article, the Board of County Commissioners shall constitute the Board of adjustment pursuant to Florida Statutes, Section 333.10, and shall utilize the procedures for processing zoning applications pursuant to this article.

(3)

Prior to filing any application for variance or exception, the applicant shall forward to the Florida Department of Transportation by certified mail, return receipt requested, a copy of the application for review and comment, if any, by the Florida Department of Transportation. Copies of the return receipt must be filed with the Director of the 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 Florida Department of Transportation. Notwithstanding any other provision of this Code, failure to comply with the requirements of this subsection shall be grounds for appeal as set forth in Section 333.07(2)(a), Florida Statutes.

The applicant shall submit with the application documentation showing compliance with the federal requirement for notification of the proposed construction and a valid aeronautical evaluation of the application.

(4)

Approval of variances, when not specifically prohibited by this article, shall be limited to those cases in which it is duly found that a literal application or enforcement of the regulations would result in unnecessary hardship and the relief granted would not be contrary to the public interest but granting thereof would do substantial justice and be in accordance with the intent and purpose of this article. 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 Miami International 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. Any variance may be subject to any reasonable conditions necessary to effectuate the purposes of this Chapter.

(5)

In determining whether the standard set forth in paragraph (4) above has been met, the following factors pertaining to the public interest shall be considered:

(a)

the nature of the terrain and height of existing structures;

(b)

public and private interest and investments;

(c)

the character of flying operations and planned future development of Miami International Airport;

(d)

federal airways as designated by the Federal Aviation Administration;

(e)

whether the construction of the proposed structure would cause an increase in the minimum descent altitude or the decision height at Miami International Airport;

(f)

technological advances;

(g)

the safety of persons on the ground and in the air;

(h)

land use density;

(i)

safe and efficient use of navigable airspace; and

(j)

the cumulative effects on navigable airspace of all existing structures, proposed structures identified in the Comprehensive Development Master Plan, and all other known proposed structures and uses in the area.

No variance shall be approved solely on the basis that the proposed structure or use will not exceed federal obstruction standards, or any other federal aviation regulation.

(6)

Notwithstanding the foregoing provisions of this section, in granting any variances or any other authorization for any structure or use not expressly authorized herein, the Board of County Commissioners shall require the owner of the structure or tree for which such authorization is being sought to install, operate and maintain thereon, at the owner's 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 Florida Department of Transportation.

(Ord. No. 69-39, § 13, 7-9-69; Ord. No. 78-78, § 1, 11-7-78; Ord. No. 04-203, § 13, 11-30-04; Ord. No. 07-92, § 9, 7-10-07)