The purpose of nuisance abatement standards is to control the impacts of residential, commercial and industrial uses; to permit potential nuisances to be measured factually and objectively; to ensure that all industries will provide methods to protect the Town from hazards and nuisances which can be prevented by processes of control and nuisance elimination; and to protect industries from arbitrary exclusion or persecution based solely on the nuisance production by any particular type of industry in the past.

As of the effective date of this Ordinance:

A.

Any use established or changed, and any buildings, structures or tracts of land developed, constructed or used for any permitted or permissible principal or accessory use shall comply with all of the nuisance abatement standards herein set forth for the district involved.

B.

If any existing use or building or other structure is extended, enlarged, moved, structurally altered or reconstructed, or any existing use of land is enlarged or moved, the nuisance abatement standards for the district involved shall apply with respect to such extended, enlarged, moved, structurally altered or reconstructed building or other structure or portion thereof.

A.

Purpose of Procedures. The purpose of the procedures for enforcing nuisance abatement standards is to insure that an objective, unbiased determination is made in those cases where there may be substantial uncertainty as to whether an individual land use or group of land uses comply with the nuisance abatement standards of this chapter [Code], and to formulate practical ways for the alleviation of such non-compliance.

B.

Enforcement Procedures. Alleged violations of the nuisance abatement standards shall be investigated by the Building Official and/or Consulting Town Engineer, herein referred to as the Town Engineer.

1.

Required Data. Following the initiation of an investigation, the Building Official or Town Engineer may require the owner or operator of any proposed use to submit such data and evidence as is needed to make any objective determination. The evidence may include, but is not limited to, the following items:

(a)

Plans of the existing or proposed construction and development.

(b)

A description of the existing or proposed machinery; processes and products.

(c)

Specifications for the mechanisms and techniques used or proposed to be used in restricting the possible emission of any of the dangerous and objectionable elements as set forth in this Section.

(d)

Measurements of the amount and rate of emission of said dangerous or objectionable elements.

Failure to submit data required by the Town shall constitute grounds for denial or revocation of an occupancy permit, whichever is appropriate to meet the intent of this Chapter [Code].

2.

Evaluation of Proposed Land Uses. Subsequent to a review of a proposed land use development plan, the Town Building Official in consent with the Town Engineer may determine that there are reasonable grounds to believe that the proposed use may violate the nuisance abatement standards cited herein. In such cases where substantial uncertainty exists as to whether a proposed new land use will comply with the nuisance abatement standards, the Building Official or Town Engineer may, at the applicant's expense, request a statement of a professional engineer registered in the State of Florida, which certifies that the planned land is designed to satisfy the nuisance abatement standards. Findings of the said engineer shall be presented to the Town Planning and Zoning Board for review and evaluation concurrent with site plan review.

3.

Evaluation of Existing Development. When the Town of Malabar ascertains a probable noncompliance by an existing land use, the Building Official with the consent of the Town Engineer shall investigate as follows:

(a)

Where determination can be made by the Town Staff, using equipment normally available to the Town or obtainable without extraordinary expense, such determinations shall be made before notice of violation is issued.

(b)

Where technical complexity or extraordinary expense makes an investigation utilizing Town personnel and/or equipment unreasonable, the Town Council may retain an expert consultant to determine if a land use activity is in compliance with nuisance abatement standards. Such consultants shall be fully qualified to give the required information and shall be persons or firms mutually agreeable to the Town of Malabar and to the owner or operator of the use in question. In the event of inability to select a mutually agreeable consultant, the Town and the owner or operator may select independent consultants, in which event each party shall bear its own costs irrespective of the final determination of compliance or non-compliance with the nuisance abatement standards in question. If one consultant is mutually agreed upon, the cost of the consultant's services shall be borne by the owner or operator of said use, if the use is found to be in violation of the nuisance abatement standards, but if the use is found by the final authority to be in compliance with the regulations the Town shall bear the cost of the consultant's services.

4.

Action by Town. Within thirty (30) days following the receipt of the required evidence, the Building Official in consent with the Town Engineer shall make a determination as to compliance or non-compliance with the nuisance abatement standards. In the event of non-compliance, the Building Official may require modifications or alterations in the existing construction of the operational procedures to insure that compliance with the nuisance abatement standards will be maintained. The operator shall be given a reasonable length of time to effect any changes prescribed by the Building Official for the purpose of securing compliance with the nuisance abatement standards. If, after the conclusion of the time granted for compliance with the nuisance abatement standards, the Building Official finds the violation is still in existence, the matter shall be referred to the Town Council.

All uses in all zoning districts shall be constructed, maintained and operated in a manner which is not injurious or offensive to the occupation of adjacent premises due to the emission or creation of noise, vibration, smoke, dust or other particulate matter, toxic or noxious waste materials, odors, fire and explosive hazard or glare.

A.

Air Pollutants. Air pollutants, including smoke, particulate matter, odor and toxic matter shall be regulated by the standards cited below:

1.

Smoke. Every use shall be so operated as to prevent the emission of smoke as specified in Chapter 17.2 "Rules of Department of Environmental Regulations: Air Pollution," Florida Administrative Code.

2.

Particulate Matter Including Dust. Every use shall be so operated as to prevent the emission into the air of dust or other solid matter as specified in Chapter 17.2 "Rules of the Department of Environmental Regulation: Air Pollution," Florida Administrative Code.

3.

Odor. Every use shall be so operated as to prevent the emission of objectionable of [or] offensive odors in such concentration as to be readily perceptible at any point at or beyond the lot line of the property on which the use is located as specified in Chapter 17.2 "Rules of the Department of Environmental Regulations: Air Pollution," Florida Administrative Code.

4.

Toxic Matter. The ambient air quality standards for guiding the release of airborne toxic materials across lot lines shall be in accordance with Chapter 17.2 "Rules of the Department of Environmental Regulation: Air Pollution," Florida Administrative Code.

B.

Fire and Explosive Hazards. All operations, activities and uses shall be conducted so as to comply with the nuisance abatement standards governing fire and explosion hazards prescribed below. Such uses shall comply with the rules and regulations of the National Fire Code published by the National Fire Protection Association as well as Chapter 4A, "Rules of the State Fire Marshall," Florida Administrative Code.

1.

Explosive Detonable Materials. Explosive detonable materials shall include, but not limited to, all primary explosives, such as lead azide, lead styphnate, fullminates and tetracene; all high explosives such as TNT, RDX, HMX, PETN, and picric acid; propellants and components thereof, such as dry nitrocellulose, black powder, boron hydrides, hydrazine and its derivatives; pyrotechnics and fireworks such as magnesium powder, potassium chlorate and potassium nitrate; blasting explosives, such as dynamite and nitroglycerine; unstable organic compounds, such as acetylides, tetraxoles and ozonides; unstable oxidizing agents, such as perchloric acid, perchlorates and hydrogen perolear fuels, fissionable materials and products, and reactor elements, such as Uranium 235 and Plutonium 239.

2.

Regulations Governing Fire Hazard Solids. The storage or utilization of solid materials which are susceptible to intense burning shall be within spaces having fire restrictive construction of no less than two (2) hours and protected with an automatic fire extinguishing system. However, such storage or utilization is not permitted unless approved by the Building Official after consultation and approval of the Fire Chief, based on standards incorporated herein specifically or by reference.

3.

Fire Hazard Liquids and Gases.

(a)

The storage, utilization or manufacture of flammable liquids or gases which produce flammable or explosive vapors shall be permitted only in accordance with this Section, exclusive of the storage of finished products in original sealed containers (60 gallons or less) which shall be unrestricted.

(b)

The total storage capacity of flammable liquids and gases shall be restricted to the capacity expressly permitted by the Building Official after consultation with the Fire Chief based on standards incorporated herein specifically or by reference.

C.

Glare. No operation or activity shall be conducted so as to cause or create glare in excess of the amounts permitted herein. Within all commercial and industrial districts any operation or activity producing glare shall be conducted so that direct or indirect light from the source shall not cause illumination in excess of 0.5 foot-candles when measured in a residential district.

D.

Vibration. Every use shall be so operated that ground vibration inherently and recurrently generated is not perceptible, without instruments at any point on the property line of the property on which the use is located.

1.

Vibration shall be measured at or beyond any adjacent lot line or residential district line as indicated in Table 1-10.4(D)(2) herein and such measurements shall not exceed the particle velocities so designated. The instrument used for these measurements shall be a three component measuring system capable of simultaneous measurement of vibration in three mutually perpendicular directions.

2.

The maximum vibration is given as particle velocity, which may be measured directly with suitable instrumentation or computed on the basis of displacement and frequency. When computed, the following formula shall be used:

TABLE 1-10.4(D)(2). MAXIMUM GROUND TRANSMITTED VIBRATION

3.

The maximum particle velocity shall be the vector sum of the three individual components recorded. Such particle velocity shall not exceed the values given in Table 1-10.4(D)(2).

Where vibration is produced as discrete impulses, and such impulses do not exceed a frequency of one second between impulses, then the values in Table 1 [Table 1-10.4(D)(2)] may be multiplied by two (2). Vibrations resulting from temporary construction activity that occur between 7 AM and 7 PM shall be exempt from the requirements of this section.

E.

Noise. Unnecessary, excessive or offensive noise shall mean any sound or noise conflict with the criteria, standards or levels set forth in this chapter [Code] for permissible noise. In the absence of specific maximum noise levels, a noise level which exceeds the ambient sound level by five (5) dBA or more, when measured at the nearest property line or, in the case of multifamily residential buildings, when measured anywhere in one dwelling unit or from common space in the same building shall be deemed an unnecessary, excessive or offensive noise.

1.

Regulating noise from buildings, premises or property. No person owning, or in possession or control of any building or premises, shall use the same, or rent the same to be used for any business or employment or residential use, or for any purpose or pleasure or recreation, if such use shall, by its nature be excessive, offensive, or unusually loud and thereby disturb or destroy the peace of the neighborhood in which such building or premise is situated, or be dangerous or detrimental to health.

2.

Regulating noise from radios, electronic audio equipment and musical instruments. No person shall use, operate or play any radio, phonograph, stereo set, tape player, television set, sound amplifier or other electronic audio device or any musical instrument which produces or reproduces sound, at an excessive or unusually loud volume level so as to disturb the peace, quiet and comfort of the neighborhood in the vicinity.

3.

Regulating noise from loudspeakers and devices for advertising. No person shall use, operate or play any loudspeaker, sound amplifier or musical instrument which produces or reproduces sound which is cast or emitted upon the public streets and sidewalks for the purposes of commercial advertising or for attracting the attention of the public to any building, structure or place or to the activity which is being carried on thereon.

4.

Regulating noise from animal noises. It shall be unlawful to keep or maintain any animal, bird or fowl within residential zones of the Town of Malabar unless the owner thereof shall provide and maintain adequate precautions and sound control techniques to eliminate any excessive, offensive and unnecessary noise. It shall not be a violation of this section, however, for any animal, bird or fowl to give a sound of danger or warning under particular circumstances reasonably requiring the need for warning.

5.

Regulating noise from loading, unloading and unpacking. It shall be unlawful for any person engaged in loading, unloading, packing or unpacking or opening crates, boxes or containers, including the loading or unloading of any motor vehicle or truck trailer onto any truck transport or railway car to create excessive and unnecessary loud noise.

6.

Regulating noise from permissible time for construction activity. It shall be unlawful for any person to do, perform or engage in any construction work, building, excavating, hoisting, grading, pile driving, pneumatic hammer, demolition, dredging, building alteration or repair work of any nature to any building or structure or upon any site for same, in the Town of Malabar between the hours of 7:00 p.m. of one day and 7:00 a.m. of the next day in [if] any such activity shall cause noises whose levels result in excess of the limits as stated in subsection 1-10.4(E)(9). Any person desiring to engage in the aforesaid activity beyond the stated hours of limitation, based upon cases of urgent necessity or upon the interests of public health, safety and ultimate convenience, may apply to the Building Official for a special permit. Such permits, if granted, shall be limited to a certain period, but may be renewed for additional periods if the emergency or need therefor continues. In the issuance of such permits the Building Official should weigh all facts and circumstances and should determine whether the reasons given for the urgent necessity are valid and reasonable, whether the public health, safety and ultimate convenience will be protected or better served by granting the permit requested and whether the manner and amount of loss or inconvenience to the party in interest imposes a significant hardship. Upon an affirmative finding of the foregoing considerations, the Building Official is authorized to issue the permit requested and any extensions thereof, as may be required. During such periods of emergency activities and during the normal construction hours of 7:00 a.m. to 7:00 p.m., the noise levels generated by construction activities shall not exceed seventy-five (75) dBA for more than ten (10) percent of the time when measured at a distance of fifty (50) feet from the construction site. Any person aggrieved by the decision of the Building Official or by his designated representative may appeal the decision to the Town Council.

7.

Regulating Noise from Fixed Mechanical Equipment. It shall be unlawful to create any excessive and unnecessary loud noise in excess of the limits of Section 1-10.4(E)(9) by the use or operation of any fixed mechanical equipment including but not limited to air conditioner, compressor unit, power fan or blower or the electric motor of any engine used to drive such device, and such noise shall be muffled and deadened by adequate noise suppression and muffling devices to eliminate annoyance and disturbance to persons within the range of hearing as set forth in this chapter [Code].

The Building Official shall require compliance with all reasonable sound abatement measures and sound screening which may be necessary to prevent all existing and new fixed mechanical equipment from creating excessive, unnecessary or offensive noise. All new air conditioning equipment hereafter installed in the Town shall carry the manufacturer's certification of the sound rating, as determined by the applicable standards of the Air Conditioning and Refrigeration Institute or the American Society of Heating, Refrigeration and Air Conditioning Engineers. If the sound rating value of an air conditioning unit is such that the sound level created by its operation is in conflict with the provisions of subsection 1-10.4(E)(9) adequate noise suppression and muffling devices shall be provided to reduce noise level to within the allowable limits. All pertinent information and data as to the sound ratings of such equipment shall be furnished to the Building Official at the time the application for the building permit is made.

8.

Noise Measurement Procedures. For the purposes of determining and classifying any noise as excessive, offense [offensive] and unnecessary or as an unusually loud noise, which is hereby declared to be unlawful and prohibited by this chapter [Code], the following test measurements, requirements and provisions shall be applied. Notwithstanding, a violation of this chapter [Code] may occur without the occasion of the measurements being made as hereinafter provided if circumstances are such that a violation would be obvious to an ordinary, reasonable, prudent person.

9.

Noise control measurement standards. Table 1-10.4(E)(9): Maximum Permitted Sound Levels in Decibels (dB(A)) located herein establishes the maximum permissible noise thresholds. Measurements shall be taken at the boundary lines of the zoning lot in all districts excepting the Industrial District; and, at the district boundary lines for uses within the Industrial zoning district on which the use is located. As indicated, the maximum permissible noise levels vary according to the zoning of the lot adjacent to the lot on which the use is located.

TABLE 1-10.4(E)(9). MAXIMUM PERMITTED SOUND LEVELS IN DECIBELS (dB(A))
(re: 0.0002 Microbar)

a.

Definition of Terms. A decibel is a measure of a unit of sound pressure. Sound waves having the same decibel level "sound" loud or soft to the human ear depending upon the frequency of the sound wave in cycles per second (i.e., whether the pitch of the sound is high or low). Thus, an A-weighted filter, constructed in accordance with the specifications of the American National Standards Institute, which automatically takes account of the varying effect on the human ear of different pitches shall be used on any sound level measurements required by this section. Accordingly, all measurements are expressed in dB(A) to reflect the use of this A-weighted filter.

b.

Method of Calculation. The standards established in Table 1 [Table 1-10.4(E)(9) shall be determined] in terms of the Equivalent Sound Level (Leq) which must be calculated by taking 100 instantaneous A-weighted sound levels at ten second intervals and computing the Leq in accordance with standard ANSI procedures.

Examples of noise sources having various sound levels are as follows:

c.

Exception for Impact Noises. Impact noises are sounds that occur intermittently rather than continuously. Impact noises generated by sources that do not operate more than one minute in any one hour period are permissible up to a level of 10 dB(A) in excess of the figures listed in Table 1-10.4(E)(9), except that this higher level of permissible noise shall not apply from 7:00 pm to 7:00 am when the adjacent lot is zoned residential. The impact noise shall be measured using the fast response of the sound level meter.

Noise levels resulting from temporary construction or other temporary activity that occurs between 7:00 am and 7:00 pm shall be exempt from the requirements of this subsection.