It is the purpose of this section to promote the preservation of sufficient ecological communities necessary to maintain viable populations of all upland and wetland native plant and animal species and representative stands of each habitat type found in the City of Fellsmere. It is further the intent of this article to promote the preservation of such flora communities and fauna populations through the establishment of specific land development regulations, while still allowing the reasonable development of property. Additionally, it is the intent of this section to conserve wetland and upland ecological communities for their benefits as described in the comprehensive plan for the City of Fellsmere and to restrict land development activities that would be detrimental to such benefits, including, but not limited to, those activities that would:

• Disregard the benefits of the critical habitat of rare, endangered or potentially endangered flora and fauna species;

• Diminish common ecological communities, such as pine flatwoods, to a point of becoming regionally uncommon or rare; or

• Unnecessarily remove vegetation that serves a valuable function such as erosion control, visual or noise buffer, water and air pollution filtration, or drought tolerant landscape.

(Ord. No. 2011-02, § 3(Exh. A), 7-7-2011)

A.

Applicability.

1.

The regulations of this section apply to the following land development activities, except as may be provided in the individual subsections of this article;

a.

Land development activities involving the subdivision and plating of property; site plan approval or any development or redevelopment activity on a parcel of property five acres or larger;

b.

Land development activities on land parcels containing or bordering on any existing or created wetlands or deep water habitat;

c.

Any land development activity that would result in the removal of upland native vegetation contributing to the stabilization of the banks of existing canals, ditches, or natural watercourses; and

d.

Land development activities subject to the provisions of this article, including all site plan developments and subdivisions, and single-family residential uses on property five acres in size or greater but excluding individual single-family home sites on parcels of record as of the date of adoption of this Code.

2.

Any land development activities including land clearing, grubbing, or pruning that results in the destruction of upland vegetation contrary to the provisions of this section shall be considered a violation of city laws and ordinances and shall be subject to code enforcement action or other penalties as provided by law.

B.

Upland native plant community conservation areas.

1.

All development projects on property five acres or larger, including single-family residential development, subdivisions, site plans and planned development projects, but excluding individual single-family home sites on parcels of record as of the date of adoption of this Code, shall set-aside, through selective clearing and micro-siting of buildings and construction activities, a minimum of 15 percent of the total cumulative acreage of native plant communities which occur on-site (including, but not limited to, flatwoods, xeric scrub, and coastal/tropical hammock). Such set-aside areas shall be preserved in viable condition with intact canopy, understory, and ground cover, and shall be protected by the filing of conservation easements. The preserved set-aside area(s) shall be allowed as credit toward other city land development regulations such as landscape, buffer, and open space requirements as provided in this Code.

2.

Native upland plant community set-aside areas shall meet the following criteria:

a.

Native upland set-asides shall have horizontal dimensions no less than 50 feet. In cases where a set-aside is contiguous with another conservation area, the dimensions of the other conservation area may be credited toward the minimum 50-foot horizontal dimension requirement.

b.

Native upland set-asides shall be conserved as common areas on separate tracts or conservation easements and shall be depicted as such on approved plats. Conserved upland set-aside areas relating to site plan (nonplat) projects must be depicted and labeled on the site plan as conservation easements and shall be so recorded but are not required to be platted. The conservation tracts or easements shall be posted with boundary signs no larger than one square-foot in size at intervals no greater than 400 feet along the perimeter of the tract. The boundary signs shall identify the tract as a conservation area.

c.

The applicant shall provide a management plan for the set-aside area to ensure long-term viability of preserved or created habitat, as the case may be. The management plan shall address nuisance invasive plant control; fire hazard prevention; passive recreational use (if proposed); boundary signage and fencing; and shall identify the entity responsible for long-term maintenance. The management plan shall be subject to approval by city manager or designee.

3.

The city shall permit off-site preservation and/or habitat creation as an alternative to on-site 15 percent preservation when on-site preservation would preclude reasonable use of the site due to site-specific characteristics. At the full discretion of the city, off-site preservation and/or habitat creation as an alternative to on-site 15 percent preservation may also be permitted at the request of the applicant. In either case, the off-site preservation or creation area must be "type-for-type" plant community and of a size 150 percent greater than the alternative on-site 15 percent set-aside except that in cases where on site common habitats are required to be preserved, an off-site rare habitat may be preserved in its place on a 1:1 basis meeting all other requirements of this article. The off-site preservation or creation area must be contiguous to another conservation area within city or contiguous land in the unincorporated area of the county or a minimum of five acres in size. When an off-site preservation or creation area is proposed, the applicant shall provide a management plan for the area to ensure long-term viability of preserved or created habitat, as the case may be. The management plan shall be subject to approval by the city manager or designee.

4.

In cases where a project developer demonstrates that preservation of 15 percent of the native upland plant communities on-site would preclude reasonable use of the site due to site-specific characteristics or the city, at its full discretion, has approved the use of off-site mitigation and off-site preservation is not a practicable alternative, the developer may, as a last alternative, pay a fee equivalent to the fair market value of one acre of the project site based upon the final end use times the number of acres of habitat type that would otherwise have been set-aside off-site as the off-site preservation. In such cases, the developer shall provide city manager or designee with an independent certified member appraisal institute (MAI) appraisal of current per acre fair market value of the project site. For purposes of this section, a "current" MAI appraisal is an appraisal that has been certified no earlier than four months prior to development project approval. As a last alternative, this fee-in-lieu of native upland set-aside shall be payable to the city prior to the issuance of a land development permit and shall be used by the city for acquisition of conservation and/or recreation areas and/or for management of such lands. At the city's discretion it may use any funds collected for partnership programs with Indian River County or the State of Florida for the purpose of acquiring additional conservation and/or recreation areas and/or for management of such lands.

5.

The areal extent of native upland plant communities occurring on a site shall be verified by the City of Fellsmere based on field inspection and review of a vegetation survey to be submitted by the applicant.

a.

The vegetation survey shall consist of an aerial photograph (or blueprint thereof) or sketch prepared to a scale no smaller than one inch to 200 feet which delineates native upland plant communities by general category and distinguishes such communities from nonnative plant communities and/or disturbed areas occurring on the site.

b.

Native upland plant communities shall be determined using the Florida Land Cover Classification System, published by the Florida Fish and Wildlife Conservation Commission, 2009, or most recent addition. The Florida Fish and Wildlife Conservation Commission, the Soil and Water Conservation District, and the Florida Division of Forestry shall also be consulted as needed to aid in plant community delineation.

c.

For purposes of calculating the areal extent of native upland plant communities occurring on-site, the following areas shall not be included.

1)

Areas of the subject property predominated by any one or combination of the Category 1 Invasive Exotics as maintained by the Florida Exotic Pest Plant Council.

2)

Areas determined to be wetlands, surface waters or deep-water habitat; and

3)

Areas disturbed from previous development or land clearing activities when such development or land clearing was performed in legal conformance with applicable regulatory authority requirements when they occurred.

6.

The five-acre threshold for applying the upland native plant community conservation area requirement shall be based on the parcel size of the overall subject property, rather than the actual "area of development" (development phase). However, the amount of required set-aside shall be calculated and conserved on an "area of development" (phase-by-phase) basis, as applicable.

7.

Once the area and location of upland native plant community to be conserved is determined, the applicant shall provide a boundary survey or legal description of the conservation area and shall record a conservation easement in a form prescribed by the city attorney. Such recorded conservation easement shall be required prior to the issuance of a land development order/permit, site plan release, or building permit for the proposed development activity.

C.

Removal of nuisance exotic vegetation.

1.

As a condition of a land clearing permit, all Category 1 Invasive Exotics as maintained by the Florida Exotic Pest Plant Council shall be removed from development project site property, as applicable.

2.

In cases where removal of nuisance exotic vegetation would result in substantial damage to native upland plant communities, exceptions to required removal may occur, subject to city council approval.

3.

The planting or sale of nuisance exotic vegetation as described in subsection C. above is prohibited in the City of Fellsmere.

D.

Environmental survey for endangered and potentially endangered fauna and flora.

1.

As part of the environmental analysis required by this article, any property which is suspected to support listed endangered or potentially endangered fauna or flora shall be surveyed for such species by a competent ecologist or environmental specialist. Listed species shall be those appearing in the most recent edition of "Official Lists of Endangered and Potentially Endangered Fauna and Flora in Florida" published by the Florida Fish and Wildlife Conservation Commission (FFWCC).

2.

Once the environmental survey is conducted and listed species that occur on-site have been documented, the land clearing applicant and/or developer shall notify the GFC and U.S. Fish and Wildlife Service (USFWS) and provide proper protection to such species to the extent feasible, to the satisfaction of the city and wildlife agencies. "Extent feasible" refers to, but is not limited to:

a.

Development design modification to incorporate the preservation of listed plant communities or animal nests/burrows into conservation areas;

b.

Relocation of listed species to locations on or off-site conducive for supporting such species; and/or

c.

Satisfaction of jurisdictional regulatory agency requirements that apply to threatened and endangered species protection, as applicable.

3.

Prior to release of a development permit, the applicant shall provide evidence of compliance with state and/or federal listed species protections

E.

Enforcement. A violation of any provision of this section shall be determined to be a violation of this Code and subject to the code enforcement proceedings and shall be punishable upon conviction by a fine not to exceed $500.00, or by imprisonment in the county jail up to 60 days, or both such fine and imprisonment. The destruction or alteration of each native upland plant associated with plant community conservation areas or individually located shall be considered a separate offense and each offense shall be subject to a fine of up to $500.00. If the violation is determined to be irreparable or irreversible in nature, a fine not to exceed $5,000.00 per violation may be imposed. In the event of a violation, the special master shall have the power to order restoration and creation measures for the damaged upland native vegetation by the person or agent responsible for the violation. If the responsible person or agent does not complete such measures within a time specified by the order, the City of Fellsmere may restore the affected upland to its prior condition for the purpose of offsetting losses sustained as a result of the violation. The person or agent responsible for the original violation shall be liable to City of Fellsmere for attorneys' fees and costs of such actions; such fees and costs shall be placed as a lien on the property until paid.

(Ord. No. 2011-02, § 3(Exh. A), 7-7-2011; Ord. No. 2021-18, § 2(Exh. A), 12-9-2021)

A.

Purpose. It is the purpose of this section to work in concert with the St. Johns River Water Management District, The Florida Department of Environmental Protection, and The Army Corp of Engineers, when applicable, in providing for the protection and restoration of wetlands in the City of Fellsmere. Wetlands are recognized as being an indispensable resource in nature, and they provide for a natural regulation of flooding, erosion, and soil/substrate limitations. While wetland and surface habitat development activities are regulated extensively at the state and federal levels, the City of Fellsmere is in a position to provide long-term wetland protection by directing growth away from sensitive areas through land use regulations.

B.

Applicability.

1.

The regulations of this section apply to the following land development activities, except as may be provided in the individual subsections of this article.

a.

Land development activities involving the subdivision and plating of property; site plan approval or any development or redevelopment activity on a parcel of property five acres or larger;

b.

Land development activities on land parcels containing or bordering on any existing or created wetlands or deepwater habitat;

c.

Any land development activity that would result in the removal of wetland native vegetation contributing to the stabilization of the banks of existing canals, ditches, or natural watercourses; and

Land development activities subject to the provisions of this article, including all site plan developments and subdivisions, and single-family residential uses on property five acres in size or greater but excluding individual single-family home sites on parcels of record as of the date of adoption of this Code.

2.

Any land development activities including land clearing, grubbing, or pruning that results in the destruction of wetland vegetation contrary to the provisions of this section shall be considered a violation of city laws and ordinances and shall be subject to code enforcement action or other penalties as provided by law.

C.

Determination of wetlands and surface water habitats delineation and functional value.

1.

The definition of wetlands and surface water habitats shall be based upon the most recent rules adopted by the Florida Department of Environmental Protection (FDEP) for Environmental Resource Permitting (ERP) and Sovereign Submerged Lands (SSL), Chapter 62.340.100, Florida Administrative Code and shall be consistent with the broadest jurisdiction of federal, state, and regional regulatory agencies. Representatives of the U.S. Corps of Engineers, St. Johns River Water Management District and/or other applicable agencies will be contacted, if applicable, for assistance in identifying the extent and functional values of wetlands and surface water habitats.

2.

USFWS National Wetlands Inventory Maps (1984), submergent aquatic vegetation inventories, infrared aerials and property appraiser aerials may be utilized for general identification of wetlands and surface water habitats in Indian River County. It is recognized, however, that such graphic sources do not depict the full extent of wetland and surface water habitat delineations and function characteristics. Wetlands and surface water habitats shall be identified by survey at the time of final site development review on a site-by-site basis.

3.

To the extent set forth in FDEP rules, factors to be considered in evaluating the present or future functions and values of wetlands and surface water habitats shall include, but not be limited to.

a.

Relationship to similar or complementary habitats;

b.

Proximity to adjacent urban land uses;

c.

Degree of disturbance or invasion by exotic plant species;

d.

Importance to wildlife species, including aquatic species (as applicable);

e.

Frequency and length of inundation.

4.

A final wetland delineation shall be determined by field survey of water levels, vegetation, and soil profiles by a competent ecologist or environmental specialist.

D.

Wetlands alteration—Permits required. No alteration of wetlands or surface water habitat shall be allowed unless all proper permits for such alteration, including all required mitigation, have been issued by the St. Johns River Water Management District, The Florida Department of Environmental Protection, or The Army Corp of Engineers. All permits required for wetland preservation or alteration shall be provided to the city prior to the release of a land clearing permit.

E.

Native upland edge vegetation buffer zone. A buffer zone of native upland vegetation shall be provided around wetlands and surface water habitats which are constructed or preserved on new development sites. The buffer zone may consist of preserved or planted vegetation, but shall include canopy, understory, and ground cover of native species only. The edge of the buffer zone shall begin at the upland limit of the wetland or surface water habitat. A minimum of ten square feet of such buffer shall be provided for each linear foot of wetland or surface water habitat perimeter that lies adjacent to uplands. The upland edge buffer shall be located such that no less than 50 percent of the total shoreline is buffered by a minimum width of ten feet of upland habitat. Additional wetland and surface water buffers may be required by other regulatory agencies, and when so required, shall be binding upon the applicant as part of the final site plan.

(Ord. No. 2011-02, § 3(Exh. A), 7-7-2011)