The purpose of this Code in its entirety is to provide procedures to ensure that development orders and permits are conditioned on the availability of public facilities and services which meet adopted level of service requirements for concurrency management.

This article is also intended to describe the requirements and procedures for determining consistency of proposed development with the Town's Comprehensive Plan. A further purpose of the Article is to describe the means for ensuring that development orders and permits meet the Town's concurrency management requirements.

All development applications shall demonstrate complete compliance with the Town of Malabar Comprehensive Plan through compliance with all applicable provisions of this Code and the Comprehensive Plan. Further, all development applications shall demonstrate that specified public facilities shall be available at prescribed levels of service concurrent with the impact of the development of those facilities.

Any Town official or citizen may challenge the consistency of a development proposal with the comprehensive plan. If an issue of consistency is raised, the Town Planner or other designated Town staff shall recommend to the Planning and Zoning Board and/or Town Council how the issue should be resolved. The Planning and Zoning Board shall first consider recommendations of the Town Planner or other designated staff and forward such recommendations to the Town Council. The Town Council shall make a determination of consistency. The determination shall be justified with written findings.

A.

Adopted Levels of Service shall not be Degraded. All applications for development orders shall demonstrate that the proposed development does not degrade adopted levels of service in the Town. The following requirements are designed to ensure that certain public services are available at prescribed levels of service concurrent with the impacts of the development.

Notwithstanding the foregoing, the prescribed levels of service may be degraded during the actual construction of new facilities, if upon completion of the new facilities the prescribed levels of service shall be met.

B.

Determination of Available Capacity. For purposes of these regulations the available capacity of a facility shall be determined by adding the cumulative total supply for each infrastructure component as cited below in Section 1-13.3(B)(1) and subtracting cumulative total demand for each infrastructure component as cited below in Section 1-13.3(B)(2).

1.

Indicators of Available Infrastructure Capacity (Add):

a.

Capacity of Existing Infrastructure. The total capacity of existing facilities operating at the required level of service; and

b.

Capacity of New Infrastructure. The total capacity of new facilities, if any, that will become available on or before the date of occupancy of the development. The capacity of new facilities may be counted only if one or more of the following is shown:

(i)

Construction of the new facilities is under way at the time of application.

(ii)

The new facilities are the subject of a binding executed contract for the construction of the facilities of the provision of services at the time of application.

(iii)

The new facilities have been included in the adopted town/county capital improvement program annual budget. This provision shall be construed to mean that funds are appropriated for actual construction and that sufficient preliminary steps are complete to result in contracts for construction in the time period cited in the annual budget. This provision shall not be construed to mean that funds are merely appropriated for planning, engineering, testing, acquisition, permitting, survey, or design, although any or all may be included.

(iv)

The new facilities are guaranteed in an enforceable development agreement. An enforceable development agreement may include, but is not limited to, development agreements pursuant to Section 163.3220, Florida Statutes, or an agreement or development order pursuant to Chapter 380, Florida Statutes. Such facilities shall be consistent with the capital improvements element of the Town of Malabar Comprehensive Plan and shall be consistent with all other applicable laws and ordinances of the Town or other public agencies having jurisdiction.

(v)

The developer has contributed funds to the town/county necessary to provide new facilities consistent with the Town's Comprehensive Plan. Commitment that the facilities will be built shall be evidenced by an appropriate budget amendment and appropriation of revenues to the project by the town/county or other governmental entity.

2.

Indicators of Cumulative Demand on Infrastructure (Subtract):

a.

Existing Demand Based on Existing Development. The demand for service or facility created by existing development as documented in the Town/County Comprehensive Plan; and

b.

Demand to be Generated by Incomplete Approved Development. The demand for the service or facility created by the anticipated completion of other approved developments.

C.

Burden of Demonstrating Compliance on Developer. The burden of demonstration [of] compliance with these levels of service requirements shall be upon the developer. In order to be approved by the Town, applications for development approval shall provide sufficient information to demonstrate compliance with these standards.

Where determination of capacity in Section 1-13.3(B) above indicates necessary and available capacity, the development application shall provide satisfactory documentation of alternative methods proposed to meet level of service requirements. Any proposed alternative service provision methods shall guarantee the availability of requisite service and/or facilities by the time the development is occupied (i.e., at the time a certificate of occupancy is issued).

Where a central potable water system is required pursuant to the subdivision regulations, the applicant shall connect to the Town's proposed potable water system as the system becomes available. Where the Town's system is unavailable, the development shall provide a central water system and such water system shall be designed pursuant to the engineered specifications denoted by resolution of the Town Council. When the Town's potable water system is made available, the system shall be connected to the Town's central water system and all such facilities shall be dedicated to the Town.

New development shall not be approved unless sufficient capacity is available to sustain the following levels of service for potable water as established in the Public Facilities Element of the Town's Comprehensive Plan:

Residential: 75 gallons per capita per day.

Non-Residential: 7,500 gallons per day per gross acre.

New development shall not be approved unless sufficient capacity is available to sustain the following levels of service for wastewater treatment as established in the Public Facilities Element of the Town's Comprehensive Plan:

Where septic tanks and drainfields are allowed pursuant to the Town's subdivision regulations, such facilities shall be designed and constructed in accord with regulations of the Brevard County Department of Environmental Services.

Where a central wastewater system is required pursuant to the subdivision regulations, the applicant shall connect to the Town's proposed wastewater system as the system becomes available. Where the Town's system is unavailable, the development shall provide a central wastewater system and such wastewater system shall be designed pursuant to the engineered specifications denoted by resolution of the Town Council. When the Town's wastewater system is made available, the system shall be connected to the Town's central wastewater system and all such facilities shall be dedicated to the Town.

A.

Level of Service. New development shall not be approved unless sufficient capacity is available to sustain the following levels of service for traffic circulation as established in the Traffic Circulation Element of the Town's Comprehensive Plan (also reference criteria in Section 1-7.2(D)):

*30th highest peak hour as established by DOT.

B.

Determination of Project Impact. The impact of development activity on available capacity shall be determined as follows:

1.

The area of impact of the development (a traffic shed) shall be determined. The traffic shed shall be that area where the primary impact of traffic to and from the site occurs.

2.

The projected level of service for arterials and collectors within the traffic shed shall be calculated based upon estimated trips to be generated by the project, or where applicable, the first phase of the project, and taking into consideration the impact of other approved but not completed developments within the traffic shed. Information on committed development within the traffic shed shall be provided by the Town. Where the development will have access to more than one collector or arterial, the calculations shall show the split in generated traffic and state the assumptions used in the assignment of traffic to each facility.

3.

The projected and adopted levels of service shall be compared to determine whether the proposed project will degrade the adopted level of service.

C.

Action Upon Failure to Show Available Capacity. Where available capacity cannot be shown as described in Section 1-13.6(B), the following methods may be used to maintain adopted level of service:

1.

The applicant may provide the necessary improvements to maintain level of service. In such case the application shall include appropriate plans for roadway improvements, documentation that such improvements are designed to provide the capacity necessary to achieve or maintain the level of service, and recordable instruments guaranteeing the construction.

Documentation that improvements are designed to provide the necessary capacity shall be prepared and sealed by a professional traffic engineer, registered in the State of Florida. The provision of improvements shall be reasonably scheduled to provide the capacity at the time of occupancy. However, a temporary degradation may be allowable only if construction is taking place. Failure to meet this provision shall constitute violation of the development order and may result in cancellation of the development order and discontinuance of project construction and/or further occupancy.

2.

The proposed project may be altered such that projected level of service is no less than the adopted level of service.

D.

Dedication of Rights-of-Way and Improvements. The applicant shall dedicate rights-of-way for necessary improvements to the public traffic circulation system and all roadway construction shall be designed and constructed pursuant to engineered standards which are adopted by resolution of the Town Council.

New development shall not be approved unless sufficient capacity is available to sustain the following levels of service for the drainage system as established in the Drainage Element of the Town's Comprehensive Plan. (Also, refer to performance criteria in Article VIII).

Types of Use:

On site drainage improvements: 10 year, 24 hour design storm.

Off site drainage improvements: 25 year, 24 hour storm event.

No development shall increase the amount or rate of water run-off beyond pre-development conditions.

Where Article VIII is more restrictive, the provisions of Article VIII shall govern minimum level of service requirements.

Cross reference— Flood damage prevention, ch. 9; streets, sidewalks and other public places, ch. 13; street improvements, § 13-36 et seq.

New development shall not be approved unless sufficient available capacity is available to sustain the following levels of service for the solid waste as established in the Solid Waste Element of the Town's Comprehensive Plan.

LOS: 6.85 lbs. per capita per day.

New development shall not be approved unless sufficient capacity is available to sustain the following levels of service for the recreational facilities as established in the Recreation and Open Space Element of the Town's Comprehensive Plan:

TABLE 1-13.9(A). RECREATION STANDARDS FOR SITES IN THE TOWN OF MALABAR

Source: State of Florida, Outdoor Recreation Resource and Facility Guidelines.

Compiled by Solin and Associates, Inc. 1990

TABLE 1-13.9(B). RECREATION STANDARDS FOR FACILITIES

A.

Filing Applications. In order to implement the concurrency management, the Town shall require that all applicants for a development order or permit (as defined in § 163.3164 F.S., including comprehensive plan amendments) shall, at the time the subject permit application is filed, submit information which demonstrates that urban services needed by the proposed development pursuant to this Article can and will be provided concurrent with the impacts of new development.

B.

Information Requirements. As a minimum, the information shall include the following:

1.

The specific land use(s) and the proposed density and/or intensity of the use(s).

2.

Analysis of available capacity to accommodate trips generated pursuant to Sections 1-13.3 and 1-13.6. Estimated trips per day generated by the proposed land use(s) together with anticipated on- and off-site improvements necessitated to accommodate the traffic impacts generated by the development including, additional R/W, roadway improvements, additional paved laneage, traffic signalization, proposed methods for controlling access and egress, and other similar improvements.

3.

Analysis of available capacity to accommodate potable water and wastewater demand generated pursuant to Sections 1-13.3, 1-13.4, and 1-13.5. Planned improvements in potable water and/or wastewater systems required to establish and/or maintain adopted water and wastewater levels of service. System improvements and proposed funding resources required for implementing any improvements required to establish and/or maintain adopted potable water and wastewater system level of service standards.

4.

Analysis of surface water management impacts ensuring compliance with provisions of Article XIII, especially Sections 1-13.3 and 1-13.7. Conceptual plan for accommodating stormwater run-off and demonstrated evidence that the proposed drainage improvements shall accommodate stormwater run-off without adversely impacting natural systems or the Town's adopted level of service for storm drainage.

5.

In cases where residential development is proposed, information shall be submitted describing plans for accommodating recreational demands generated by the development, including demonstrated evidence that the Town's adopted level of service for recreation shall not be adversely impacted. The information submitted shall be sufficient to demonstrate potential improvement needs generated by the development pursuant to Sections 1-13.3 and 1-13.9.

6.

Projected demand generated by the development on the solid waste disposal system and assurances that the Town's adopted level of service for solid waste disposal shall not be adversely impacted. The information submitted shall be sufficient to demonstrate potential improvement needs generated by the development pursuant to Sections 1-13.3 and 1-13.8.

7.

Other information which the Town determines is necessary to assure that the concurrency requirement shall be satisfied without adversely impacting existing levels of service or the Town's ability to adequately service anticipated developments which are consistent with adopted plans and policies of the Town.

All such information submitted pursuant to this subsection shall incorporate proposed funding sources, including any identification of improvements which the applicant anticipates shall be funded by the Town or other public or private entity other than the applicant.