This chapter shall be known and may be cited as the "Indian River County Upland Habitat Protection Ordinance."

(Ord. No. 90-16, § 1, 9-11-90)

(1)

Indian River County has a diversity of upland ecological communities ranging from coastal strand and hammock communities along the Atlantic Ocean to the pine flatwoods and dry prairies in the vicinity of Blue Cypress Lake. Following are significant upland ecological communities found in Indian River County; each is described in detail in the conservation element of the Indian River County Comprehensive Plan.

(a)

Coastal strand (including dune vegetation);

(b)

Coastal/tropical hammocks;

(c)

South Florida flatwoods (including pine flatwoods, dry prairies);

(d)

Xeric scrub communities (including sand pine scrub);

(e)

Cabbage palm hammocks;

(f)

Upland hardwood hammocks.

(2)

In their natural state, upland ecological communities serve man and nature with many attributes, such as:

(a)

Providing habitat for wildlife and vegetation, including site-specific resident species as well as wide-ranging wildlife species dependent on more than one community type for life needs;

(b)

Providing soil stabilization and thus erosion control;

(c)

Providing physical and psychological benefits in the interest of public health and welfare, by providing shade and cooling the air and land, and by providing noise and visual buffers, and open space;

(d)

Providing an essential link in the condition of our environment for human life through the production of oxygen, transfer of water, precipitation of airborne pollutants, cleansing of ground and surface water, and conversion of carbon dioxide; and

(e)

Providing ecotone and diversity complementary to other ecological community types (e.g. wetlands, deepwater, and uplands) to the benefit of wildlife species.

(3)

It is the purpose and intent of this chapter to promote the preservation of sufficient upland ecological communities to maintain viable populations of all native plant and animal species and representative stands of each habitat type in Indian River County. It is further the intent of this chapter to promote the preservation of such flora communities and fauna populations through the establishment of land development regulations, as a supplement to county land acquisition efforts, while still allowing the reasonable development of property.

(4)

Additionally, it is the purpose and intent of this chapter to conserve upland ecological communities for their benefits as described in subsection 929.02(2), and to restrict land development activities that would be detrimental to such benefits, including, but not limited to, those activities that would:

(a)

Destroy the critical habitat of rare, endangered or potentially endangered flora and fauna species;

(b)

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

(c)

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. 90-16, § 1, 9-11-90)

The definitions of certain terms used in this chapter are set forth in Chapter 901, Definitions, of the Indian River County Land Development Code.

(Ord. No. 90-16, § 1, 9-11-90)

(1)

The regulations of this chapter apply to the following land development activities, except as may be provided in the individual sections of this chapter:

(a)

Land development activities subject to the provisions of Chapter 913, Subdivisions and Plats, and Chapter 914, Site Plan Regulations, with Section 929.05 of this chapter applying to all site plan developments, subdivisions, plats, and single-family developments on property five (5) acres or larger;

(b)

Land development activities on land parcels bordering the St. Sebastian River or Indian River Lagoon Aquatic Preserve, including site plan developments, agricultural operations, and single-family residential uses;

(c)

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

(d)

Land development activities on oceanfront property, including but not limited to site plan development and single-family residential uses;

(e)

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

(f)

Land development activities subject to the provisions of Chapter 927, Tree Protection, including all site plan developments and subdivisions, and single-family residential uses on property greater than one acre in size.

(2)

Any land development activities including landclearing, grubbing, or pruning that results in the destruction of upland vegetation contrary to the provisions of this chapter shall be considered a violation of county laws and ordinances and shall be subject to penalties as provided by law.

(Ord. No. 90-16, § 1, 9-11-90)

(1)

Development projects on property five (5) acres or larger, including single-family residential development, subdivisions, affidavits of exemption, site plans and planned development projects, but excluding agricultural operations outside of the urban service area and individual single-family home site parcels, shall set-aside, through selective clearing and micro-siting of buildings and construction activities, a minimum of fifteen (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 county land development regulations such as landscape, buffer, and open space requirements.

(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 fifty (50) feet. In cases where a set-aside is contiguous with another conservation area, the dimensions of the other conservation area may be credited towards the minimum fifty-foot horizontal dimension requirement.

(b)

Native upland set-asides shall be conserved as common areas on separate tracts and shall be depicted as such on approved plats and affidavit of exemption drawings. Conserved upland set-aside areas relating to site plan (non-plat) projects must be depicted and labeled on the site plan but are not required to be platted. The conservation tracts shall be posted with boundary signs no larger than one (1) square-foot in size at intervals no greater than four hundred (400) feet along the perimeter of the tract. The boundary signs shall identify the tract as a conservation area.

(c)

Conservation tracts bordering single-family residential lots shall be fenced along the tract boundary abutting said lots. Said fencing shall be of a type and design (such as split-rail) to minimize impedance to wildlife movement.

(d)

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 county environmental planning and emergency services staff.

The county shall permit off-site preservation and/or habitat creation as an alternative to on-site fifteen (15) percent preservation when on-site preservation would preclude reasonable use of the site due to site-specific characteristics. In such cases, the off-site preservation or creation area must be "type-for-type" plant community and of a size equal to or greater than the alternative on-site fifteen (15) percent set-aside. The off-site preservation or creation area must be contiguous to another conservation area. 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 county environmental planning staff.

(3)

In cases where a project developer demonstrates that preservation of fifteen (15) percent of the native upland plant communities on-site would preclude reasonable use of the site due to site-specific characteristics, and off-site type-for-type native upland preservation is not a practicable alternative, the developer may, as a last alternative to fifteen (15) percent preservation of the on-site community, pay a fee equivalent to (the fair market value of one (1) acre of the project site) X (the number of acres of habitat type that would otherwise have been set-aside as fifteen (15) percent preservation.). In such cases, the developer shall provide county staff with an independent certified Member Appraisal Institute (MAI) appraisal of current per-acre fair market value of the area that would otherwise have been set-aside. For purposes of this section, a "current" MAI appraisal is an appraisal that has been certified no earlier than four (4) months prior to development project approval. As a last alternative, this fee-in-lieu of native upland set-aside shall be payable to the county prior to the issuance of a land development permit and shall be used by the county for acquisition of comparable native habitat preserve areas and/or for management of such lands.

(4)

The areal extent of native upland plant communities occurring on a site shall be verified by county environmental planning staff, 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 (1) inch to two hundred (200) feet which delineates native upland plant communities by general category (reference section 929.02(1)), and distinguishes such communities from non-native plant communities and/or disturbed areas occurring on the site.

(b)

Native upland plant communities shall be determined using Appendix 8.A, Ecological Communities Flora and Fauna Tables, of the conservation element of the county comprehensive plan as a general reference. The Florida Game and Freshwater Fish 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 (1) or combination of the following nuisance exotic species:

a.

Australian pine (Casuarina spp.);

b.

Ear-pod tree (Enterolobium cyclocarpum);

c.

Chinaberry (Melia azedarach);

d.

Brazilian pepper (Schinus terebinthifolius);

e.

Melaleuca (Melaleuca quinquenervia).

2.

Areas determined to be wetlands or deepwater habitat; and

3.

Areas disturbed from previous development or land clearing activities within the past two (2) years, when such development or land clearing was performed in legal conformance with county requirements when they occurred.

(5)

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.

(6)

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

(Ord. No. 90-16, § 1, 9-11-90; Ord. No. 2006-005, § 1, 2-14-06)

Undeveloped tracts of xeric scrub and coastal/tropical hammocks five (5) acres or larger (in single or multiple ownership) are hereby deemed environmentally important, in recognition of their scarcity and natural values, and in recognition of the public interest in encouraging the conservation of plants and animals associated with these vegetation communities. The county hereby encourages the conservation of xeric scrub and coastal/tropical vegetative communities by establishing density transfer and cluster development incentive land use regulations to apply to these environmentally important areas. It shall be allowable through the planned development (PD) approval process to apply for a density transfer credit from said environmentally important upland tracts to other project uplands, as further described and provided for in Chapter 915, Planned Development, of the county land development code. Environmentally important upland tracts of xeric scrub or coastal/tropical hammocks utilized for density transfer credit shall be preserved via the establishment of a conservation easement as described in subsection 929.05(6) of this chapter.

(Ord. No. 90-16, § 1, 9-11-90)

(1)

For parcels created after June 18, 1991, along the St. Sebastian River, a one hundred-foot shoreline protection buffer is hereby established measured from the mean high water mark of the river or fifty (50) feet from the landward boundary of jurisdictional wetlands along the river or any tributary, whichever is greater (cross reference subsection 911.12(4)(e)). For parcels of record which existed prior to June 18, 1991, a fifty-foot shoreline protection buffer for unplatted parcels, and a twenty-five-foot buffer for existing platted lots is hereby established on land parcels bordering the St. Sebastian River or the Indian River Lagoon Aquatic Preserve, measured from the mean high water line. In no case, however, with reference to parcels or lots of record, which existed prior to June 18, 1991, shall the buffer(s) exceed twenty (20) percent of the parcel or lot depth perpendicular to the applicable waterway. The shoreline protection buffer(s) described in this section shall not apply to riverfront properties with permitted seawalls.

(2)

Within the shoreline protection buffer, no development shall be permitted with the exception of docks, boat ramps, pervious walkways and elevated walkways which provide the property owner with reasonable access to the waterway.

(a)

No more than twenty (20) percent or twenty-five (25) feet, whichever is greater, of any shoreline may be altered for reasonable access. Native vegetation in the remainder of the shoreline protection buffer shall remain unaltered, except as may be allowed through county trimming regulations.

(3)

Shoreline alteration shall be prohibited, unless it is in the public interest or prevents or repairs erosion damage, or provides reasonable access to the water, does not adversely impact water quality, natural habitat or adjacent shoreline uses, and is permitted by all applicable jurisdictional regulatory agencies. Any native vegetation removed in such instances except as may be allowed in subsection 929.07(2)(a), shall be relocated or replaced on-site with comparable vegetation and amount.

(Ord. No. 90-16, § 1, 9-11-90; Ord. No. 91-48, § 89, 12-4-91; Ord. No. 2012-028, § 1, 7-10-12)

(1)

As a condition of a landclearing permit, in accordance with Chapter 927, Tree Protection, of the land development code, the following nuisance exotic vegetation shall be removed from development project site property, as applicable:

(a)

Australian pine (Casuarina spp.);

(b)

Brazilian pepper (Schinus terebinthifolius);

(c)

Melaleuca (Melaleuca quinquenervia);

(d)

Ear-pod tree (Enterolobium cyclocarpum);

(e)

Chinaberry (Melia azedarach).

(2)

Exceptions to subsection 929.08(1) and/or additional conditions may occur adjacent to jungle trail, subject to the provisions of the county jungle trail management plan. 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 county environmental planning staff approval.

(3)

The planting or sale of nuisance exotic vegetation as described in subsection 929.08(1) is prohibited in Indian River County.

(Ord. No. 90-16, § 1, 9-11-90)

(1)

Before any property which is suspected by county environmental planning staff to support listed endangered or potentially endangered fauna or flora is cleared via a county land clearing permit (reference Chapter 927, Tree Protection), the property 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 Game and Fresh Water Fish Commission (GFC).

(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 county 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.

(Ord. No. 90-16, § 1, 9-11-90)

The disturbance of dune vegetation oceanward of the county dune stabilization setback line (DSSL) is prohibited, with the exception of dune walkover construction and other similar minor structures that may be allowed subject to FDNR Division of Beaches and Shores approval. The DSSL and additional dune protection criteria are further described and provided for in Chapter 932, Coastal Management, of the county land development code.

(Ord. No. 90-16, § 1, 9-11-90)

Landclearing, grubbing, and/or removal of native trees and vegetation is prohibited in Indian River County except as is allowed under the permitting and exemption provisions of this chapter and Chapter 927, Tree Protection, of the county land development code. Chapter 927, Tree Protection, provides standards and criteria relating to the landclearing of property and the removal of protected trees, in addition to the provisions of this chapter.

(Ord. No. 90-16, § 1, 9-11-90)

The provisions of this chapter apply in the jungle trail protected area, except as may conflict with the provisions of the county jungle trail management plan (I.R.C. Resolution 89-36). The jungle trail management plan defines the jungle trail protected area and provides additional standards and criteria for upland native plant community protection and enhancement.

(Ord. No. 90-16, § 1, 9-11-90)

A violation of any provision of this chapter shall be punishable upon conviction by a fine not to exceed five hundred dollars ($500.00), or by imprisonment in the county jail up to sixty (60) days, or both such fine and imprisonment. The destruction or alteration of each native upland plant associated with plant community conservation areas shall be considered a separate offense.

In the event of a violation, the board of county commissioners 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, Indian River County 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 Indian River County for the cost of such actions; such cost shall be placed as a lien on the property until paid.

(Ord. No. 90-16, § 1, 9-11-90)

Any owner of an undeveloped upland native plant community area who has dedicated an easement or entered into a perpetual conservation restriction with Indian River County or a nonprofit organization, to permanently control some or all regulated activities in the upland, shall be exempted from special assessment on the controlled upland to defray the cost of municipal improvement such as sanitary sewers, storm sewers, and water mains. Said exemption shall only apply, however, in cases when an entire land parcel is devoted to a conservation easement or perpetual conservation restriction.

(Ord. No. 90-16, § 1, 9-11-90)