A.

Building Official's Responsibility. An administrative official titled the Building Official or other successor administrative official appointed by the Town Council shall administer and enforce these regulations. The Building Official's functions may be carried out by other Town Staff or Town consultants, as directed by the Town Council. The Town Clerk shall serve as the central intake agency for all applications, petitions or administrative actions sought in pursuance of these regulations unless otherwise stated.

B.

Application, Purpose and Conflict. The Building Official shall apply the provisions of these regulations as minimum requirements for the promotion of the public health, safety and welfare. These regulations are not intended to interfere with, abrogate or annul any lawful easements, covenants or other agreements between parties; provided, however, that where these regulations impose a greater restriction, the provisions of these regulations shall prevail.

C.

Violations and Enforcement Procedures.

1.

Reporting Violations. Any person may report a violation of the Development Code to the Building Official, or the Town Clerk. Such reports shall be maintained in writing stating the causes and basis for the complaint. Complaint investigations may also be based upon field inspections performed by the Building Official or other designated personnel.

2.

Investigation. In conducting investigations of violations, the Town Building Official shall have the authority, where lawful, to inspect property, obtain the signed statements of prospective witnesses, photograph violations, and do such other gathering of evidence as is necessary for the complete investigation of a zoning violation.

3.

Procedure When Violation is Determined. Where it is determined that a probable violation of this code exists, Section 1-12.7 of this Code shall be applied to remedy the violation.

D.

Penalties and Other Legal Remedies. The Building Official and Town Attorney shall pursue each misdemeanor and any lawful civil action or proceeding as deemed necessary in compliance with Section 1-12.4 of this Code.

E.

Administrative Actions.

1.

Cease and Desist Orders. The Building Official shall have the authority to issue cease and desist orders in the form of written official notices given to the owner of the subject building, property, or premises, or to his agent, lessee, tenant, contractor, or to any person using the land, building, or premises where a misdemeanor violation has been committed or shall exist.

2.

Zoning Clearance.

a.

Issuance. No zoning clearance shall be issued by the Building Official for any purpose except in compliance with the provisions of this Code and other applicable ordinances and laws, a decision of the Board of Adjustment, the Town Council, or a court decision.

b.

Revocation. The Building Official may revoke a zoning clearance in those cases where an administrative determination has been duly made that false statements or misrepresentations existed as to material fact(s) in the application or plans upon which the permit or approval was based.

c.

Suspension. The Building Official may suspend a zoning clearance where an administrative determination has been duly made that an error or omission on either the part of the permit applicant or government agency existed in the issuance of the permit or certificate approval. A valid clearance shall be issued in place of the incorrect document after correction of the error or omission.

d.

Notice and Appeal. All decisions concerning the issuance, revocation, or suspension of zoning clearances shall be stated in official written notice to the permit applicant. Any decision of the Building Official may be appealed.

A.

Procedures for Processing Matters Before the Board.

1.

Appeal Proceedings. Appeals to the Board of Adjustment concerning interpretation or administration of this Chapter [Code] may be taken by any aggrieved person or by any person or officer of the governing body of the Town affected by any decision of the Building Official or succeeding administrative officer. Such appeals shall be taken within a reasonable time, not to exceed sixty (60) days (or such lesser period as may be provided by the rules of the Board of Adjustment) after the rendering of the order, requirement, decisions, or determination appealed, by filing with the Building Official or other administrative officer from whom the appeal is taken and with the Board of Adjustment a notice of appeal specifying the grounds thereof. The appeal shall be in the form prescribed by the rules of the Board. The administrative officer from whom the appeal is taken shall, upon notification of the filing and prior to the hearing date, transmit to the Board of Adjustment all papers or materials constituting the record upon which the action appealed from was taken.

2.

Hearing of Appeal, Notice Required. The Board of Adjustment shall fix a reasonable time for the hearing of appeal, give public notice thereof, as well as due notice to the parties in interest and decide the same within a reasonable time. At the hearing any party may appear in person or be represented by an a agent or by an attorney at law authorized to practice in the State of Florida. Appellants may be required to assume such reasonable costs in connection with appeals as may be determined by the Town Council through action in setting of fees to be charged for appeals.

3.

Vote Required for Matter Before Board. The concurring vote of a majority of the Board of Adjustment shall be necessary to reverse any order, requirement, decision or determination of the administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under this chapter [Code], or to effect any variation in the application of this chapter [Code].

4.

Procedures for Processing Variances. A variance from the terms of these regulations shall not be granted by the Board of Adjustment unless and until:

a.

A written application specifying the grounds for the variance is submitted. See Section 1-12.2(D)(2).

b.

Notice of public hearing shall have been given as identified in Section 1-12.2(E)(8) herein.

c.

The public hearing shall have been held, with the aggrieved parties appearing in person or represented by an attorney at law authorized to practice in the State of Florida.

d.

The Board of Adjustment shall have determined that the application is complete and that granting the variance meets the criteria for granting variance and that the variance is the minimum variance that will make possible the reasonable use of the land, building or structure.

5.

Expiration of Variance or Determinations. Variances and special exceptions shall become void if not exercised within six (6) months of the date granted.

6.

Extension of Variance Determinations. Before this six (6) months period has expired, the applicant may make a request to the Board of Adjustment by letter for an additional six (6) months extension. Any further extensions of time shall require a new application to be processed as a new case.

7.

Stay of Proceedings. An appeal to the Board of Adjustment stays all work on the premises and all proceedings in furtherance of the action appealed from, unless the administrative official from whom the appeal is taken certifies to the Board of Adjustment after the notice of appeal is filed with him, that by reason of facts stated in the certificate, a stay would cause imminent peril to life and property. In such case, proceedings shall not be stayed other than by a restraining order which may be granted by the Board of Adjustment or by a court of record on application, on notice to the Building Official or administrative official from whom the appeal is taken and on due cause shown.

8.

Public Notice. All proceedings shall be conducted only after public notice has been given. The public notice shall contain at least the following items:

a.

The date, time and place of meeting.

b.

The title of the Board, conducting such meeting.

c.

A brief description of the matter to be considered.

d.

A legal description of the property, other appropriate information identifying the property involved.

The giving of public notice of hearing, as herein required, shall be deemed sufficient when a notice is published at least two (2) times in a newspaper of general circulation in the Town, the first publication of which shall be at least fifteen (15) days before the hearing and a copy of such notice is mailed to all property owners, as shown in the records of the County property appraiser, within two hundred (200) feet of the property involved in the application. If the property involved in the application is a condominium, then the required notice shall be by certified mail to the condominium association and by regular mail to the individual owners.

The following additional notice may be provided:

a.

The property to be considered for change may be posted with a sign of approximately a total area of two (2) square feet placed so as to be visible from the adjacent dedicated public road right-of-way, or private access easement.

b.

The sign should contain the information required above.

9.

Recommendation Filed. On all proceedings held before the Board of Adjustment, the Building Official or other representative designated by the Town Council shall review the application and file a recommendation on each item. Such recommendations shall be received, heard and filed prior to final action on any item before the Board, and shall be part of the record of the application. (In reference to administrative appeals, a summary explanation shall be filed in place of a recommendation).

B.

Judicial Review of Decisions of Board of Adjustment. Any person or persons jointly or severally, aggrieved by any decision of the Board of Adjustment, or any officer, department, Board, commission or Town Council may apply to the circuit court in the judicial circuit where the Board of Adjustment is located for judicial relief within thirty (30) days after the decision by the Board of Adjustment. Review in the circuit court shall be either by a trial de novo, which shall be governed by the Florida Rules of Civil Procedure, or by petition for writ of certiorari, which shall be governed by the Florida Appellate Rules. The election of remedies shall lie with the appellant.

(Ord. No. 06-09, § 1, 7-17-06; Ord. No. 14-08, § 4, 2-3-14)

Editor's note— Ord. No. 14-08, § 4, adopted June 16, 2014, redesignated previous Land Development Code subsections 1-12.2 A.—D. as a new Code § 2-240, deleting the material from LDC § 1-12.2 and renumbering subsequent subsections.

Cross reference— Administration, ch. 2.

Editor's note— Ord. No. 14-08, § 5, adopted June 16, 2014, redesignated previous Land Development Code subsections 1-12.3 A.—D. as a new Code § 2-250. As LDC § 1-12.3 consisted solely of those subsections in its entirety, the section was hence repealed. The previously existing LDC § 1-12.3 pertained to Town Planning and Zoning Board (local planning agency) and derived from Ord. No. 94-1, § 2, 5-16-94; Ord. No. 06-09, § 2, 7-17-06.

A.

Legislative Intent. The legislative intent of the land development code is to provide the Town Council of the Town of Malabar zoning powers necessary to implement the Comprehensive Plan consistent with enabling legislation of Chapter 163 F.S.

B.

Powers of Town Council.

1.

Enact Zoning Regulations. Following receipt of a written report from the Town Planning and Zoning Board, the Town Council may amend or supplement the regulations and districts fixed by the adopted Town land development code. The Town Council shall hold a public hearing on such matters, with due public notice, if any change is to be considered and shall act on the proposed change after such hearing. In cases where the recommendation of the Town Planning and Zoning Board is adverse to the proposed change, such change shall not become effective except by an affirmative vote of a majority of three (3) members of the Town Council, after due process.

2.

Establish Fees and Appropriate Funds. The Town Council may by resolution establish fees, charges, and expenses imposed by these land development code regulations.

3.

Consider and Act on Development Issues as Required. The Town Council shall consider and act on development and growth management issues pursuant to this Code, Chapter 163 F.S., and other applicable laws and regulations.

4.

Enforce Land Development Code. The Town Council shall enforce the land development code, including carrying out appropriate administrative and legal actions.

5.

Appoint and Confirm Members of Requisite Boards and Commissions. The Town Council shall appoint and confirm members of the Town Planning and Zoning Board, the Board of Adjustment, and any other Board, Commission or Committee as may be deemed necessary by the Town Council or applicable laws.

Cross reference— Town council, § 2-26 et seq.

A.

Initiating Amendments to the Land Development Code. Amendments to the Land Development Code may be initiated by:

1.

Town Council. The Town Council may initiate an amendment to the land development code by approving a written statement expressing its intent to amend this code and shall submit such written statement and any relevant supportive material to the Town Planning and Zoning Board for review and action pursuant to Section 1-12.5. C., 1-12.6(C) [1-12.5(C)] of this Chapter [Code].

2.

Planning and Zoning Board. The Town Planning and Zoning Board may initiate a land development code amendment.

3.

Property Owner(s). An amendment to the land development code may be initiated by a petition signed by a property owner, or the property owner's authorized agent. Such petition shall be submitted to the office of the Town Clerk together with a fee as shall be determined by resolution of the Town Council. As many lots or parcels of property as the applicant may desire may be included in any single petition if they constitute one (1) contiguous. The petition shall be submitted on an application form prescribed by the Town Clerk. The application shall include, but not be limited to, the following:

(a)

Property Description. The application shall describe by legal description and by street address, where possible, the property to be affected by the proposed change

(b)

Current and Proposed Comprehensive Plan Land Use Map Designation. The current and proposed Comprehensive Plan Land Use Map designation for the subject property shall be identified.

(c)

Current and Proposed Zoning. The current and proposed zoning for the subject property shall be identified.

(d)

Existing and Proposed Use. The existing and proposed use of the subject property shall be stated.

(e)

Disclosure of Ownership. The application shall include a verified statement showing each and every individual person having a legal and/or equitable ownership interest in the property upon which the application for rezoning is sought, except publicly held corporations, in which case the names and addresses of the corporate officers shall be sufficient.

B.

Administrative Review. The Town Clerk shall forward zoning change petitions, for which appropriate fees have been submitted, to all appropriate administrative staff for their review and comment. The application shall be reviewed for conformance with the requirements of this Chapter [Code].

C.

Planning and Zoning Board Review. The Planning and Zoning Board, regardless of the source of the proposed zone change, shall hold a public hearing(s) thereon, with due public notice. The Town Planning and Zoning Board shall submit a written report and recommendation concerning proposed changes to the Town Council for official action. In its deliberations the Planning and Zoning Board shall consider the following criteria:

1.

Consistency with Plan. Whether the proposal is consistent with the Comprehensive Plan, including the adopted infrastructure minimum levels of service (LOS) standards and the concurrency management program. Any inconsistencies shall be identified by the Planning and Zoning Board.

2.

Conformance with Ordinances. Whether the proposal is in conformance with all applicable requirements of the Town of Malabar Code of Ordinances.

3.

Changed Conditions. Whether, and the extent to which, land use and development conditions have changed since the effective date of the existing regulations involved which are relevant to the amendment.

4.

Land Use Compatibility. Whether, and the extent to which, the proposal would result in any incompatible land uses, considering the type and location of uses involved.

5.

Adequate Public Facilities. Whether, and the extent to which, the proposal would result in demands on public facilities and services, exceeding the capacity of such facilities and services, existing or programmed, including transportation, water and wastewater services, solid waste disposal, drainage, recreation, education, emergency services, and similar necessary facilities and services.

6.

Natural Environment. Whether, and to the extent to which, the proposal would result in adverse impacts on the natural environment, including consideration of wetlands protection, preservation of groundwater aquifer, wildlife habitats, vegetative commodities, and wellfield protection.

7.

Economic Effects. Whether, and the extent to which, the proposal would adversely affect the property values in the area, or the general welfare.

8.

Orderly Development. Whether the proposal would result in an orderly and compatible land use pattern. Any negative effects on such pattern shall be identified.

9.

Public Interest; Enabling Act. Whether the proposal would be in conflict with the public interest, and whether it is in harmony with the purpose and interest of this ordinance and its enabling legislation.

10.

Other Matters. Other matters which the Planning and Zoning Board may deem appropriate.

D.

Town Council Review. The Town Council shall hold a public hearing on the requested zone change petition or amendment, with due public notice, if any change is to be considered and shall then act on the proposed change. An affirmative vote of three (3) members of the Town Council is required for favorable action on a zone change petition or amendment for which the Town Planning and Zoning Board has recommended denial. In its deliberations the Town Council shall consider the criteria identified in Section 1-12.5(C) above together with the findings and recommendations of the Planning and Zoning Board. Any modifications or revisions to the Town Planning and Zoning Board recommendation which involve a greater area of land to be rezoned or a more intensive zoning classification shall be the subject of an additional public hearing before the Town Council with due notice prior to action by the Town Council.

(Ord. No. 19-01, § 1, 3-4-19)

Cross reference— Ordinance adoption procedure, § 2-76 et seq.

Due public notice shall be provided pursuant to § 166.041 F.S.

Violations and Penalties. Prior to issuing a citation for a violation of this Code, the Town Clerk or other designated Town official shall provide notice to the violator that the violator has committed a violation of a code and shall establish a reasonable time period within which the violator must correct the violation. Such time period shall be no more than 30 days. If, upon investigation, the Town finds that the violator has not corrected the violation within the time period, the Town Clerk or other designated Town official may issue a citation to the violator. The Town Clerk or other designated Town official does not have to provide the violator with a reasonable time period to correct the violation prior to issuing a citation and may immediately issue a citation if the Town has reason to believe that the violation presents a serious threat to the public health, safety, or welfare, or if the violation is irreparable or irreversible.

A citation issued by the Town Clerk or other designated Town official shall state the date and time of issuance; name and address of the person in violation; date of the violation; section of the codes, or subsequent amendments thereto, violated; name of the Town Official and date and time when the violator shall appear in county court.

The Town Council may establish a schedule of fines for penalizing violators. Each day the offense continues after due notice shall be deemed a separate offense and the schedule of fines shall be applied accordingly.

Editor's note— Ord. No. 2021-15, § 2, adopted Sept. 14, 2021, repealed § 1-12.8, which pertained to vacate and abandonment and derived from Ord. No. 01-06, § 1, adopted March 4, 2002.

Editor's note— Ord. No. 2021-15, § 2, adopted Sept. 14, 2021, repealed § 1-12.9, which pertained to town-initiated vacate and abandonment and derived from Ord. No. 01-06, § 1, adopted March 4, 2002.