Sec. 656.361.8. - Deviations.

A. General Considerations. 1. The Form Regulations identify which body has authority to approve a Deviation from each Section thereof. The DDRB has the authority to grant Deviations for all Form Regulations in subsection 656.361.6.2 except as specified in subsection 656.361.6.2.H (Waterfront Design and River Views: setbacks, height and access corridors) and subsection 656.361.6.2.I (Creek Views and Creekfront Design), which require a final decision by the City Council for specified Deviations. Except as otherwise provided in this Section, any request for a Deviation, whether the final Deviation decision rests with the City Council or the DDRB, shall be heard by the DDRB initially in a Workshop format. Participation by an applicant in a Workshop requires that the designer(s) of the project present the need for the Deviation along with potential alternative design solutions. 2. The following requests for Deviation are exempt from the Workshop requirement, unless the project fronts the St. Johns River, Hogans Creek, or McCoy's Creek: (a) Existing buildings, when the requested Deviation would not expand or intensify the non-conformity; (b) Building entrance criteria for new construction; and (c) Rooftop criteria for new construction. 3. The Zoning Administrator shall not have the authority to grant Administrative Deviations in the Overlay Zone. 4. Certain Form Regulations must be met in their entirety in order for an economic incentive of any kind to be granted to a development. Although Deviations may be granted for design so that the project may be constructed, this does not amount to "meeting" the Regulation in order to establish eligibility for the economic incentive. Approval of an economic incentive by the DIA for a project shall not be taken into consideration by the DDRB in their deliberations regarding the project's consistency with the Use or Form Regulations. 5. Approval by the DIA of an economic incentive assumes that the project will meet the Regulations as written, without a Deviation. See subsections 656.361.6.2.H and 656.361.6.2.I. 6. Deviations shall be approved by a 2/3 vote of the membership of the initial jurisdictional body, as well as any appellate procedure. Waiving this requirement shall be stated in the title of the resolution or ordinance pertaining to the Deviation, and shall adhere to the Council Rules regarding the waiver of an ordinance. 7. All Deviations must be based upon the General Deviation Criteria, in addition to any specific criteria contained in the Section pertinent to that Regulation. All of the General Deviation Criteria must be met, and an explanation of each must be provided by the developer/applicant. A separate positive determination must be made for each criterion by the reviewing body, based upon competent, substantial evidence, in order to grant the Deviation. B. General Deviation Criteria. 1. The effect of the proposed Deviation is consistent with and furthers the objectives, policies, design and intentions of the BID Plan; 2. The request is not based exclusively upon a desire to reduce the cost of developing the site, but would accomplish a substantial public benefit; 3. The proposed Deviation will not diminish property values in the area surrounding the site and will not interfere with or injure the rights of adjacent properties; 4. The request is not a self-imposed hardship; 5. The proposed reduction or Deviation will not be detrimental to the public health, safety or welfare, result in additional public expense or the creation of nuisances; and 6. Either there are unique site characteristics such as parcel shape, location, existing utility easements, etc. that prevent development consistent with these Regulations, OR strict compliance with these Regulations will cause undue economic hardship to the developer/applicant. Proof of undue economic hardship must include the following: (a) Schematic design showing compliance with the Regulations; (b) Schematic design proposed for the Deviation; (c) Explanation of how the proposed design attempts to meet the Regulation, and how the cost to do so is prohibitive; (d) An estimate, prepared by a credible professional in either the cost of construction or the loss of income: (1) Cost of Construction: provided by a licensed contractor, appraiser, or credible professional experienced in the type of construction proposed, comparing the cost of construction to comply with the Regulations with the cost of the design proposed; or (2) An estimate, prepared by a licensed appraiser or other credible professional, of the loss of income based upon compliance with the Regulations; and (e) Complying with the Regulation must cost 50 percent or more than the cost to implement the proposed design. (Ord. 2019-196-E , § 6; Ord. 2024-39-E , § 3)