§ 72-341. Administration.

(a)

Enforcement . The zoning enforcement official shall interpret, administer and enforce this division. The zoning enforcement official is authorized to obtain assistance in the performance of all duties from any other department or agency of the federal, state or any local government.

(b)

Permits required . No structure, including any sign unless specifically exempted under subsection 72-298(1) of this article, shall be erected, moved or altered without first applying for and obtaining a building permit as required by the Florida Building Code, if applicable. No fence shall be erected, moved or altered without first applying for and obtaining a permit from the department. No building permit shall be issued by the department until the zoning enforcement official signs the building permit application attesting to the fact that the proposed use or structure or sign conforms to this article, or unless the zoning enforcement official receives a written order from the county council or the planning and land development regulations commission, whichever is applicable. If the zoning enforcement official does not sign the building permit application, reasons for such action shall be stated in writing, upon request. No building permit shall be required to erect fences on any agriculturally classified lands.

(c)

Application for building permit . Building permit applications may be obtained from the department, and each application for a building permit shall contain the following information in addition to the information required by any other applicable section of this article and the department:

(1)

Plot and construction plans drawn to scale showing:

a.

Shape and dimensions of the lot.

b.

Any existing structures.

c.

Size and location of the proposed structure.

d.

Use of any existing structures.

e.

Intended use of each proposed structure.

f.

Number of dwelling units.

g.

Location of any existing roads, any platted rights-of-way, any platted easements, waterbodies, watercourses and wetlands.

(2)

Any other information, including a property survey, deemed necessary or appropriate by the zoning enforcement official. If required, a survey shall be made by a registered land surveyor or engineer, licensed in Florida.

(d)

Certificate of occupancy. It shall be unlawful to use or occupy, permit the use or occupancy, or change the use of any premises until a certificate of occupancy has been issued by the administration.

(e)

Construction and use to remain the same. Building permits issued on the basis of applications signed by the zoning enforcement official authorize only the use, arrangement or construction set forth in them and permit no other use, arrangement or construction. Any use, arrangement or construction varying from an approved application signed by the zoning enforcement official shall be deemed a violation of this article, and shall give rise to the remedies provided in subsection (f), below.

(f)

Violations. If the zoning enforcement official shall find that any of the provisions of this division are being violated, he shall notify the person apparently responsible for such violations, in writing, indicating the nature of the violation and ordering any action necessary to correct it, including but not limited to a stop-work order.

Any person found guilty of a violation of any provisions of this divsion, or any lawful order of the county council, planning and land development regulation commission, or zoning enforcement official, shall be punished in accordance with F.S. § 125.69 or any amendments thereto with a fine not to exceed $500.00 and/or incarceration not to exceed 60 days. Each day the violation continues shall be deemed a separate offense.

In addition to any other remedies, whether civil or criminal, the violation of this article or any lawful order of the county council, planning and land development regulation commission, or zoning enforcement official may be restrained by injunction, including a mandatory injunction, and otherwise abated in any matter provided by law.

(g)

Fee schedules. The county council may establish by resolution a fee schedule for applications for rezoning requests, special exceptions, variances, appeals and signs in order to carry out the provisions of this article.

(h)

Consistency with comprehensive plan.

(1)

The Volusia County Comprehensive Plan guides future development and land use within the unincorporated area of the county. As required by the Community Planning Act, F.S. ch. 163, as amended, all decisions regarding land development, notwithstanding any provisions for vested properties, shall be consistent with the comprehensive plan. Where there are any apparent conflicts between the comprehensive plan and this article, the plan shall prevail. Provided, however, said comprehensive plan provides for recognition of vested rights pursuant to section F, chapter 21 of said plan.

(2)

Relationship to future land use element. The future land use element represents one component of the comprehensive plan. This element, among other functions, establishes and provides detailed descriptions for a number of land use categories (including range of permissible intensity of use and residential density). The location and extent of each of these categories is depicted by the future land use map which is part of the aforementioned plan element.

(3)

All development shall be consistent with the future land use element and map and the applicable provisions of this article and the Land Development Code [article III]. However, this requirement shall not be interpreted as relieving any development from achieving consistency with the balance of the plan as the plan shall be viewed as a whole and no specific element, or portion thereof, shall be construed or applied in isolation.

(4)

The comprehensive plan contains a matrix which outlines the various zoning classifications which may be permitted within a specific land use category.

(i)

Determination of vested rights. As required by F.S. § 163.3194(1)(b), in order to achieve consistency between the comprehensive plan and this article, Volusia County Council adopted Resolution No. 90-204, which provides for a schedule review and potentially provides for administrative rezoning of parcels by the county council. In furtherance of this requirement, the Volusia County Council adopted new zoning maps on June 4, 1992, and May 5, 1994, to achieve said consistency between the comprehensive plan and this article.

In recognition of the aforesaid requirement of the consistency between the comprehensive plan and the land development regulations, including this article, and the subsequent adoption of new zoning maps, it is necessary to provide a mechanism for vested rights determinations as provided in F.S. § 163.3167(8). Provided, however, that a vested rights determination does not affect the applicability of division 6 of this article.

(1)

Application for determination of vested rights. A property owner may request a determination of vested rights from the zoning enforcement official. Said owner shall submit an application for such determination within two years from said administrative rezoning of said property. Failure of the owner to submit such application within the time provided shall be deemed a waiver of his right to obtain a determination of vested rights and shall constitute an abandonment of any claim to vested rights, equitable estoppel for his property, the proposed development and for the previously existing zoning thereon. Judicial relief shall not be available unless administrative remedies provided herein are exhausted. Applications for determination of vested rights shall be submitted on a form established by the zoning enforcement official. An application fee shall be in the amount to be determined by county council in a fee resolution. Said fee shall accompany and be a part of the application. The application shall at a minimum, include name, address, telephone number, owner, and authorized applicant, if other than the owner, street address, legal description, acreage of the property, and all factual information and knowledge reasonably available to the owner, and the applicant to address each of the criteria established in this section. After receiving the application for determination of vested rights, the zoning enforcement official shall determine whether the application submitted is complete. If the application is determined incomplete, the zoning enforcement official shall notify the applicant in writing of its deficiency. The zoning enforcement official shall take no further steps to process the application until the deficiencies have been remedied. After receipt of a complete application for a determination of vested rights, the zoning enforcement official shall review and evaluate the application in light of all the criteria in subsection (2) of this section. Based on the review and the evaluation, the zoning enforcement official shall deny, grant, or grant with conditions applications for a vested rights determination. Appeals under this section shall be as provided in division 10, section 72-378, of this article.

(2)

Criteria for evaluating applications. The criteria herein provided is intended to set forth factors that shall be considered by the zoning enforcement official in rendering a vested rights determination under this section. It is intended that each case be decided on a case-by-case factual analysis. An applicant shall be entitled to a positive determination by the zoning enforcement official of vested rights only if he demonstrates by substantial competent evidence the four-part test and criteria hereinafter outlined.

In determining whether the prior zoning classification of the subject property is vested under the four-part test, the following shall be considered for each part:

a.

Criteria for PART ONE: PART ONE - "Upon some act or omission of the county". The following shall be considered as acts of the county for the purpose of Part One of the four-part test:

A valid, unexpired governmental act of Volusia County in the form of a final development order which authorized the specific development for which a determination is sought. Notwithstanding anything to the contrary in this article, the previous zoning classification of the property shall not be sufficient to be deemed an "act or omission".

b.

Criteria for PART TWO. PART TWO - "A property owner relying in good faith". In determining whether reliance was in good faith, the following shall be considered for the purpose of Part Two of the four-part test:

1)

Whether the expenditures or obligations were clearly and directly connected to the authorizing act or omission of the county relied upon.

2)

Whether the expenditures or obligations were made or incurred subsequent to the act or omission the county relied upon.

3)

Whether the expenditures or obligations were made or incurred in a timely fashion, that is, within a reasonable period of time after the act or omission of the county relied upon.

4)

Acts by the person prior to the effective date of the administrative rezoning shall be presumed to have been in good faith.

Expenditures or obligations shall be presumed not to have been made or incurred in good faith, if they were made or incurred:

i)

When a person has made a mistake or misled the county.

ii)

When the act of the county on which a person is relying has been invalidated or has expired and the person knew or should have known of such invalidity or expiration.

iii)

While the act of the county upon which a person is relying was being contested in the courts hearing process, except any court action or hearing process initiated prior to the effective date of any administrative rezoning initiated by the county council.

iv)

When the person knew, or should have known, that rezoning of the subject property was under consideration by the PLDRC or county council.

c.

Criteria for PARTS THREE and FOUR.

PART THREE - "Has made such a substantial change in position or incurred such extensive obligations and expenses relating to the property that it would be highly inequitable and unjust to destroy the rights acquired".

PART FOUR - "The development has commenced and is continuing in good faith".

For the purpose of parts three and four of the four-part test, the following shall be considered in determining whether a substantial change in position has been made or extensive obligations and expenses have been incurred relating to the property such that it would be highly inequitable and unjust to destroy the rights acquired:

i)

The substantial change in position made or the extensive obligations and expenses incurred shall be clearly and directly connected to the authorizing act or omission of the county and shall be made or incurred subsequent to the act of the county relied upon.

ii)

Whether actual construction has commenced and is continuing in good faith, and whether the extensive obligations or expenditures made or incurred are unique to any development previously approved and not reasonably usable for a development consistent with and permitted by the change in zoning classification.

iii)

Whether the property owner has incurred extensive obligations and expenses for hard costs of development.

iv)

Whether the property owner has made infrastructure improvements within or to the subject property pursuant to a written agreement or development order with the county.

v)

Whether the property owner has constructed oversized infrastructure improvements within or to the property to meet the needs of other properties.

vi)

Whether a person has incurred extensive obligations and expenses for the following development-related matters that are made or incurred subsequent to the final act or omission relied upon:

A.

Engineering and architectural fees.

B.

Planning fees.

C.

Local, state and federal permit fees.

D.

Attorneys' fees.

E.

Scientific or biological studies, tests or reports.

For the purpose of Parts Three and Four of the four-part test, the cumulative effect of expenses and obligations, as well as all facts and circumstances shall be considered in determining whether a change in position is substantial or whether obligations and expenses incurred are extensive.

If the record indicates that the applicant failed to demonstrate by substantial competent evidence any one of the required parts of the four-part vest rights test set forth above, then it shall not be inequitable to deny the applicant vested rights.

(3)

Limitation on determinations of vested rights.

a.

A determination of vested rights which grants an application for determination of vested rights shall confirm such vested rights only to the extent expressly contained in such determination. Except as expressly stated herein, nothing in this article shall relieve the property owner from complying with any and all other Volusia County land development regulations.

b.

Notwithstanding anything to the contrary in this section, a determination of vested rights which grants an application for determination of vested rights shall expire and be null and void unless construction is commenced and is continuing in good faith pursuant to a final development order within three years after the issuance of the determination of vested rights under this section.

c.

A determination of vested rights shall apply to and run with the land and is therefore transferable from owner to owner of the land subject to the determination of vested rights.

(j)

Conditional use permits. The conditional use permit is intended to be utilized as a special permit which temporarily allows uses not otherwise permitted by this article for a specified period of time; provided that no conditional use permit shall be issued by the zoning enforcement official unless the owners of all residentially zoned adjacent properties have been notified, in writing and at the applicant's expense, by certified mail, return receipt requested, and proof of notification is provided with the permit application. Adjacent property shall mean all parcels of land that the applicant's property comes into contact with at one or more points, except for parcels separated by a public or private street.

(1)

After the application and accompanying information has been received and processed, those applications submitted for conditional use permits with zoning enforcement official approval, shall be approved or denied by the zoning enforcement official within 30 days. The zoning enforcement official's decision may be appealed to the county council pursuant to section 72-378.

(2)

No conditional use permit shall be issued for a period to exceed two years unless otherwise specified. However, conditional use permits may be renewed or extended upon reapplication.

(3)

All conditional uses must meet the minimum requirements of the county's land development regulations unless specific deviations are requested and approved.

(4)

All requests for a conditional use permit shall meet the requirements of this code for structures and adequate utility, refuse management, access, fire and similar facilities shall be available for the proposed use.

(5)

The applicant shall be responsible for obtaining all applicable federal, state and local permit(s) and approval(s).

(Ord. No. 90-34, § 120, 9-27-90; Ord. No. 91-11, § XXXII, 5-16-91; Ord. No. 92-6, § LXXIII, 6-4-92; Ord. No. 93-2, § I, 2-4-93; Ord. No. 94-4, §§ CX, CXI, 5-5-94; Ord. No. 98-25, § XLIX, 12-17-98; Ord. No. 2008-25, § II, 12-4-08; Ord. No. 2013-20, § IV, 12-12-13; Ord. No. 2018-05, § XII, 1-18-18; Ord. No. 2018-13, § III, 7-24-18)