The below cited appurtenances or mechanical devices typically required to be placed above roof level and not intended for human occupancy may exceed height limitations cited within this Code upon approval by the Town Council. The Town Council shall first consider the recommendation of the Planning and Zoning Board. A staff recommendation shall be provided by the Building Official and/or the Town Engineer. The appurtenances or mechanical devices shall include:

• Chimneys.

• Water Towers.

• Ventilators.

• Radio and Television Antennas.

• Other similar duly approved appurtenances or mechanical devices.

In no case shall any permitted heights be in conflict with the height regulations established for the Valkaria Airport by Brevard County and/or the Federal Aviation Administration. An elevator is hereby declared intended for human occupancy and shall not be considered for an exception to the height regulations.

(Ord. No. 08-04, § 1, 4-7-08)

Every part of a required yard shall be open and unobstructed by any structure or portion of a structure from thirty (30) inches above the general ground level of the graded lot upward, except as hereinafter provided or as otherwise permitted in this chapter [Code]:

1.

Fixed or movable awnings may project not over eighteen (18) inches into a required yard.

2.

Chimneys, fireplace or pilaster may project not over three (3) feet into a required yard.

3.

Fire escapes, stairways and balconies which are unroofed and not enclosed may project not over five (5) feet into a required rear yard, or not over three and one-half (3½) feet into a required side yard in any residential district.

4.

Overhangs, hoods, canopies or marquees may project not over three (3) feet into a required yard. Notwithstanding, residential roof overhangs may extend four (4) feet into a required yard.

5.

Fences, walls and hedges shall be permitted in required yards subject to the provisions established in this chapter [Code].

6.

In a nonresidential district required off-street parking may be located in the front yard except that no parking space shall be permitted within ten (10) feet of the front lot line. Furthermore, the Town may require applicants for development to submit plans which include dedicated cross easements for joint use of driveway curb cuts, driveways, and accessways required to provide access to off-street parking on adjacent sites. The purpose of this requirement is to achieve more efficient management of curb cuts onto major state roads and to attain greater levels of safety and public convenience.

7.

In the multifamily residential districts, parking may be located in the front yard except that no parking space shall be permitted within twenty (20) feet of the front lot line.

8.

Open, unenclosed porches, platforms or paved terraces not covered by a roof or a canopy, and which do not extend above the level of the first floor of the building, may extend or project into the required yard area not more than six (6) feet or utility easement.

(Ord. No. 92-8, § 1(C), 8-18-92)

Any lot of record existing prior to Ordinance 7-1-76 as well as Section I of the Brook Hollow S/D which contains less land area or width than required in the district in which it is located may be used for a use permitted in such district. However, if the substandard lot adjoins other land of the same owner which if used could correct the area or width deficiencies of the substandard lot, then:

(1)

The substandard lot shall not be rendered a developable lot unless the nonconformity is remedied; and, furthermore,

(2)

The subsequent sale of the substandard lot, adjoining lot, or portion thereof, shall not result in a vested development right in [the] substandard lot unless the transaction corrects the deficiency in the substandard lot.

A.

Purpose, Use and Maintenance of Yards. The purpose of yards required in this Chapter [Code] is to provide open space around and between structures for health, safety and aesthetic purposes. All required yards and landscaped areas where not used for parking, driveways, sidewalks, or other approved structures shall be planted and maintained in lawn, sod, or landscaping including flower beds, shrubs, hedges or other generally accepted landscaping material approved by the Building Official. A yard may be planted and maintained in its natural condition so long as the yard is maintained and does not become a public nuisance. Landscaping material, including trees, shall not obstruct the vision of the motoring public. The landscape requirements of Article XIV shall further regulate development within all zoning districts, excepting single family zoned districts.

B.

Front Yards.

1.

Lots with double frontage. The front yard regulations shall apply to both streets on through lots or double frontage lots.

2.

Corner lots. There shall be a front yard on each street side of a corner lot, provided, however, that the buildable width of such lot shall not be reduced to less than thirty (30) feet; provided, further, that no accessory building on a corner lot shall project beyond the front yard line on either street.

3.

Encroachment of porches or terraces. An open unenclosed and uncovered porch or paved terrace may project into the front yard for a distance of not more than ten (10) feet.

4.

Encroachment of gasoline service facilities. Gasoline filling station pumps and pump islands may be located within a front yard, provided they are not less than fifteen (15) feet from any property line.

5.

Walls and Fences shall not Constitute Traffic Hazards. In a required front yard, no fence or wall shall be permitted which creates a traffic hazard by materially impeding vision.

6.

Configuration and Measurement of Front Yard Depth. Depth of required front yards shall be determined in accordance with footnote 2 in Table 1-3.3(A).

C.

Side Yard. Width of required side yards shall be measured in such a manner that the yard established is a strip of the minimum width required by district regulations with its inner edge parallel with the side lot line.

D.

Rear Yards. Depth of required rear yards shall be measured in such a manner that the yard established is a strip of the minimum width required by district regulations with its inner edge parallel with the rear lot line.

E.

Yard Encroachment By Shading. Notwithstanding any other provisions of the Code, no new building, man-made object or coniferous trees will be located in such a manner that it will cast a shadow (damaging to the use of a solar system) into adjacent required yard setbacks, between the hours of 8:00 A.M. E.S.T. and 4:00 P.M. E.S.T. at the winter solstice.

The purpose of this is to enhance the natural warming during winter months for plant life and habitat on adjoining property as well as safeguarding the users of solar heating roof panels.

(F)

Burying of Materials/Debris on Properties. No person shall bury any debris or materials which are subject to decompositions or erosion or corrosion or that encourage the presence of termites, insects or vermin anywhere within the Town other than in an authorized dumping area. Debris and materials shall include, but are not limited to, trees or parts thereof, brush, roofing materials, plaster products, lumber, automobile parts or bodies, any waste which may accumulate as a result of construction or manufacturing processes, wood and paper boxes, wrapping materials, wastes, plastics, and paper products. Also included are materials that are considered hazardous waste by the department of environmental protection, per Florida Administrative Code, or would affect ground water quality. Any other material must be approved by permit obtained from the town engineer.

(Ord. No. 92-8, § 1(E), 8-18-92; Ord. No. 97-4, § 2, 3-17-97)

Whenever a lot is not served by an approved sanitary sewer, adequate open space as required by the Brevard County Environmental Services Unit shall be provided for a septic tank and drainage field to serve the uses erected on the subject lot. The sanitary installations may be located in a front or side yard, but not closer than five (5) feet to any lot line or within any easements. Notwithstanding, no septic tank shall be located within seventy-five (75) feet of mean high water (MHW) along the Indian River, or any tributary thereof. All package plants must conform to the applicable standards of the Florida Department of Environmental Regulation (FDER), including, but not limited to, location relative to the mean high water line.

A.

Presence of Principal Building Required. No accessory building shall be constructed upon a lot until the construction of a principal building has been issued a certificate of occupancy and no accessory building shall be used unless the principal building is in use. No structure which has been constructed as a principal use for the housing of animals or for agricultural purposes shall be used as a residence.

B.

Prohibited in Required Yard. No accessory building or structure shall be located in any required yard area.

C.

General Regulations of Accessory Building. No mobile homes, travel trailers, or old cars shall be permitted as an accessory structure. No accessory structure shall be built without a permit first being issued by the Building Official expressly authorizing the accessory structure. If the Building Official is in doubt as to the type of added accessory structure or whether a proposed accessory use is a duly authorized accessory use or structure within the district in which it is proposed, then the Building Official shall forward the issue to the Planning and Zoning Board and the Town Council for action.

D.

Standards for Temporary Storage Units.

1.

Temporary Storage Unit is defined and typically utilized for the temporary storage of personal belongings only, as part of the process of household moving and/or part of a household intent to store items offsite at a commercial storage location. This definition does not include storage units authorized by the Florida Building Code pursuant to F.S. § 553.73.

2.

Temporary storage units are permitted as follows:

(a)

Permitted in Residential Areas: Any land zones RR-65, RS-10, RS-15, RS-21, RM-4, RM6, R-MH, R/LC, and PUD designated for single family and multiple family uses

(b)

Size: Temporary storage units, shall not exceed nine (9) feet in height, ten (10) feet in width, and 24 feet in length.

(c)

Location: temporary storage units are allowed in any required setback and shall not be placed in any public or private right-of-way or easement and shall not be in such a manner to create any visual obstruction for any motor vehicle operator's view of other motor vehicles, bicycles, or pedestrians upon entering or exiting rights-of-way.

(d)

Time frame: Temporary storage units are allowed in residential districts for a period not exceeding 14 days in a calendar year and no more than two times a calendar year.

(e)

The temporary storage unit shall not be utilized for the following:

i.

Storage of live animals.

ii.

Utilized for human habitation.

iii.

Storage of hazardous or flammable materials.

iv.

Advertising is prohibited on the temporary storage unit except for the name and phone number of the vendor of the unit.

v.

Storage of trash, junk ,debris, garbage, construction debris or material or refuse.

3.

The Town Manager, or designee, may grant one (1) extension to the time limit established in subsection (1) above with written request by the property owner demonstrating good cause. For purposes herein, "good cause" shall mean an act of God, or some unforeseen circumstance or event which has caused a need to extend the use of the temporary storage container at the present location. No extension shall be longer than the time period which was previously approved by the Town.

4.

Exemptions. The above regulations shall not apply to temporary storage units that are placed for construction purposes in connection with a valid building permit or during any period of declared weather emergency by federal, state, or local official action.

The provisions of this Ordinance shall not apply to any container which is placed on real property within the Town that is otherwise authorized by the Town's garbage and trash franchise agreement.

5.

Violations and provisions for schedule of fines will follow the Town of Malabar Code of Ordinances, Land Development Code, Article XII entitled Administrative Procedures for land development and code enforcement.

E.

Cargo Containers for Permanent Storage.

Definition of Cargo Container: The term "Cargo Container" shall mean any container, structure, box, cylinder, or crate made of any material temporarily or permanently affixed to real property, normally used for freight and includes, but not limited to, freight containers, shipping containers, conex box, sea van, dry box, commercially available temporary storage containers, pods, without a chassis and/or wheels underneath that is enclosed or capable of being enclosed on all sides, top and bottom, that is stored, placed, located or put on any real property within the Town for the purpose of storing personal property, construction material, trash, refuse, garbage, debris, or other material or matter. Railroad cars, truck trailers roll-off dumpsters and vehicles shall not be permitted as Cargo Containers under this section.

Cargo containers are permitted to be used as permanent storage in accordance with the following:

1.

All cargo containers shall comply with the Florida Building Code, Florida Fire Prevention Code, and shall require a building permit.

2.

Cargo containers shall be permitted in accordance with the following:

a.

As a temporary use in any land use district in conjunction with an authorized construction project and shall be removed upon completion of the project unless properly permitted to remain as permanent storage in accordance with this section. All such containers located pursuant to this subsection shall not be located in any required setbacks.

b.

Non-residential and bonafide agricultural properties are permitted to have one cargo container per five acres of agricultural tax-exempt acres of land.

c.

Cargo containers located on a residentially developed lot land use district, that is adjacent to residentially developed lots or structures shall be buffered and opaquely screened from the adjacent off-site residential lot or structure. Additionally, they shall maintain a minimum setback of 15 feet.

3.

In the instance where more than one cargo container, as outlined in this section, is allowed they shall not be stacked.

4.

All cargo containers shall be placed in either the side or rear yard and meet accessory structure setbacks for the applicable land use district or the setback as outlined in condition #2 above, whichever is more restrictive.

5.

Cargo containers shall not be located within any drainage easements.

6.

Cargo containers shall not occupy any required off-street parking spaces, vehicular accesses or drive aisles, pedestrian facilities or landscape areas for the site.

7.

Cargo containers shall not be permitted to have signage of any type.

8.

Cargo containers shall not be used for habitation and Cargo containers shall not be modified or retrofitted for habitation.

(Ord. No. 2021-22, § 1, 11-1-21; Ord. No. 2024-02, § 1, 5-6-24)

Any storage of gasoline and other combustible fluids shall be subject to compliance with all State and local laws pertaining to storage of gasoline and other combustible fluids.

Cross reference— Fire prevention and protection, ch. 8.

(a)

Definitions. For purposes of this section, the following terms shall have the following definitions:

Abut or abutting property means a lot or parcel sharing a common boundary with the lot or parcel in question, or a lot or parcel immediately across a public or private right-of-way or street from the lot or parcel in question.

Commercial district means any area of the Town having the zoning classification CL or CG in accordance with the land development regulations of the Town.

Entrance gate means a gate designed for ingress and egress for vehicular traffic to and from a lot or parcel that directly connects to the public roadway. Entrance gates may be opened manually or by automated means and may be guided by hinges, tracks, or other means.

Entranceway means columns, poles, walls, arches or other structures that define a point of entry onto a property. The entranceway may or may not have a gate.

Fence means a vertical row of nonliving material, placed close together or abutting each other in such a manner as to form a boundary or barrier between two (2) adjacent parcels of land. Such amenities as kennels, cages, corals, trellises and related conveniences are not fences for the purposes of this subsection.

Gate means a rigid structure to open and close in order to allow ingress and egress through a fence or wall. Gates may be opened manually or by automated means and may be guided by hinges, tracks, or other means.

Height means the distance from existing grade to the top of such fence or wall including post and/or uprights measured on the side facing abutting property.

Industrial district means any area of the Town having the zoning classification IND in accordance with the land development regulations of the Town.

Institutional district means any area of the Town having the zoning classification INS in accordance with the land development regulations of the Town.

Opaque shall mean that objects located on one side of a fence or wall are not visible from the opposite side when the viewer's line of sight to such object is through such fence or wall.

Perimeter means outside boundary of a subdivision or multiple adjoining lots.

Residential district means any area of the Town having the zoning classification RR-65, RS-21, RS-15, RS-10, RM-4, RM-6, R-L/C or R-MH, in accordance with the land development regulations of the Town.

Wall means a vertical row primarily composed of masonry materials placed close together or abutting each other in such a manner as to form a boundary or barrier between two (2) parcels of land.

Yard means an open, unoccupied space on the same lot or parcel with a building or buildings, other than a court, which is unobstructed from the ground upwards by buildings or structures.

(b)

Height restrictions for fences, walls, gates and related structures in commercial, industrial or institutional districts.

(1)

Fences, walls, gates, and related structures located, erected, constructed or altered on any property located in a commercial, industrial and institutional district shall be no more than eight (8) feet in height including barbed wire for security.

(c)

Height restrictions for fences, walls, gates, entranceways and related structures in residential districts shall comply with the following height requirements:

(1)

Except as provided in this section, no portion of any fence, wall or gate located between the front building line and the front lot line shall be more than five (5) feet in height and if located to the rear of the front building line shall be no more than six (6) feet in height.

(2)

For any lot or parcel not containing a structure, the requirements of this section (1-5.8) shall be applied in the same manner as if a structure had been constructed in accordance with such required yard area or setback as specified within the zoning district requirements.

(3)

Any lot or parcel located within a RR-65 district shall be permitted a fence or wall six (6) feet or less in height and gates and/or entrance gates eight (8) feet or less in height

(4)

Except as provided in this section, no portion of any entranceway shall be more than six (6) feet in height.

(5)

Any lot or parcel located within a RR-65 district shall be permitted an entranceway eighteen (18) feet or less in height. If part of the entranceway structure is erected over the driveway, that part of the structure shall meet minimum DOT height requirements.

(6)

If a gate is installed to provide ingress from a major collector road, the gate must be set back at least fifteen (15) feet from the property line.

(d)

Height restrictions for a perimeter fence or wall in residential subdivision/developments. No portion of a fence, wall or related structures shall exceed six (6) feet in height.

(e)

Maintenance of fences, walls or related structures. All fences, walls and related structures in the Town shall be maintained in good repair and in a structurally sound condition. All such structures shall be maintained to their original specifications.

(f)

Materials and design requirements.

(1)

Posts and stringers required for the support of opaque fences shall not be visible from the side facing any abutting property, for which such fence permit was issued. Posts shall be a treated wood type or wood or material type with a resistance to decay.

(2)

All walls shall have a painted surface with struck mortar joints, stucco or other finished surface on the side facing any abutting property for which the permit for such wall was issued.

(3)

The following provisions shall be prohibited in any fence or wall:

a.

Electrified wire strands. Except in the RR-65 districts when used for the control of animals and only around the control area.

b.

Barbed wire. Except in the RR-65 districts when used for the control of animals and only around the control area.

(g)

Permit required for fence, wall, entranceway and related structures. No fence, wall, entranceway or related structure shall be constructed, erected, replaced or altered between abutting parcels unless a permit therefore has been obtained from the Town by the owner of the property on which such fence or wall is to be located, or by some other person duly authorized by such owner. The application for such permit shall be on a form provided by the Building Official and shall be accompanied by drawings showing the proposed location of and the specifications for the type of construction. The Building Official shall deny a permit if he believes the proposed structure creates a threat to health or safety. Unless requested otherwise by the applicant, denial of a permit shall create an automatic appeal to the Town Council after consideration and recommendation by the Planning and Zoning Board. Permits are not required for periodic repair and maintenance of an existing fence or wall.

(h)

Permit fee. Permit fees shall be calculated in accordance with adopted resolutions. No permit shall be issued unless and until all fees associated with said permit are paid.

(i)

Restriction of fences, walls or related structures on public easements, utility easements and public rights-of-way.

(1)

No permanent wall, fence, gate, entranceway, or related structures shall be constructed on any public right-of-way or easement.

(2)

A non-permanent fence or gate may be constructed on any public right-of-way, easement providing the property owner making application for such fence or gate has submitted written permission from any affected property owners and agrees in writing, at the time of application for permit, that the property owner and/or any successors in interest will bear the expense of removal of such fence when access to said public easement is required.

(j)

All fences, walls or entranceways shall be constructed in a manner that provides adequate visibility at any public or private right-of-way, easement, driveway or street providing access to such lot or parcel, and at any abutting intersection.

(k)

Town council may authorize non-compliant design specifications only after considering the recommendation of the Planning and Zoning Board. Prior to approving subject structure the Town Council shall render a finding that the structure is safe and visually compatible within the area.

(Ord. No. 99-1, § 1, 4-19-00; Ord. No. 08-05, § 1, 5-5-08; Ord. No. 11-44, § 1, 8-1-11)

Cross reference— Buildings and building regulations, ch. 6.

A.

Regular Mooring of Watercraft. "Regularly moored" shall mean moored in the same general area at least eight (8) hours a day for ten (10) days in any month. Watercraft shall not be regularly moored along any shore without the consent of the riparian land owner. Regularly moored watercraft shall not be used as dwellings. Watercraft shall not be permitted as business offices or other related commercial enterprises. Regularly moored watercraft shall be kept in seaworthy condition when not in a permitted repair area.

B.

Maximum Permitted Projection of Waterfront Structure. Unwalled boat shelters may be erected over boatslips, but no part of such shelter may extend landward past the shoreline or be higher than fifteen (15) feet. Docks shall not project outward from shore without approval by the U.S. Army Corps of Engineers and/or any other agency having appropriate jurisdiction.

Cross reference— Boats, marinas and waterways, ch. 5.

In determining the setback requirement for any principal structures proposed to be located, the setback requirements in this section shall be construed as a minimum setback and if a greater setback is required under any of the zoning districts then such greater setback requirement shall be in compliance with Article III, District Provisions, Table 1-3.3(A) or Table 1-3.3(E), whichever is more restrictive.

(Ord. No. 2019-04, § 2, 3-4-19)

Cross reference— Buildings and building regulations, ch. 6.

A.

Regulation Against Obstruction to Traffic and Traffic Visibility. There shall be no structures or planting which materially obstructs traffic and traffic visibility.

B.

Corner Lots. On a corner lot in any district, nothing shall be erected, placed, planted or allowed to grow in such a manner as to materially impede traffic visibility within the triangular space bounded by the street frontage property lines of the subject corner lot and a line joining the two property lines thirty (30) feet from the point of intersection of the property lines.

C.

Public Right-of-Way. There shall be no structure or planting on Town or public right-of-way without prior approval of the Planning and Zoning Board and Town Council and then only after due consideration is given to the type, height and size of such structure and planting.

D.

Vision Clearance. Notwithstanding any part of this chapter [Code] or any permit granted, or variance granted by the Town, no type of structure, vehicle, tree, planting, vegetation, sign or fence or any type of obstacle or any portion thereof shall be placed or retained in such manner which would create a traffic hazard or would obstruct vision clearance at corners, curb cuts or railroad crossings in any zone.

Cross reference— Streets, § 13-26 et seq.

Any division of land shall comply with the provision of Articles XVI through XVIII "Subdivision Ordinance."

No structure larger than five hundred (500) square feet excluding structures registered as a vehicle by the State of Florida, shall be moved into the Town or from one place to another within the Town unless such building or structure is made to conform to all of the requirements of the Town's adopted Building Code in effect at the time of the moving and the requirements of the Land Development Code.

The Building Official is authorized to require any person applying for a permit to move a building or structure to show proof of a property damage insurance policy in the amount of five hundred thousand ($500,000) dollars as well as a liability insurance policy in the amount of one million ($1,000,000) dollars and may be required to post a bond or other security acceptable to the Town in an amount up to but not exceeding ten thousand dollars ($10,000) to be deposited with the Town Clerk, payable to the order of the Town of Malabar.

The purpose of the bond or other security is to guarantee compliance in full within one year with the applicable requirement of the Town's adopted Building Code and of this Land Development Code and to restore any public or private property damaged while the building or structure is being moved. Failure to fully comply within one year as above stated, will result in forfeiture of the bond to the Town of Malabar.

All applicants for a permit to move an existing structure, as above stated, are required to furnish the Town Clerk with a proposed route for moving the building through the Town as well as three sets of drawings. The said drawings shall be prepared and sealed by an Architect or Engineer registered in the State of Florida and shall either:

(i)

Certify that the structure meets all requirements as above outlined; or

(ii)

Illustrate in narrative and graphic form the proposed changes to the building or structure after it has been moved, that will bring the structure into compliance with all applicable requirements of the Town's adopted Building Code as well as the Town Land Development Code.

If drawings of the structure or building to be moved showing compliance as above stated are on record with the Town already, the above requirement for drawings of the structure is waived. The Town Council, if necessary, shall request a designated professional to examine and recommend to the Town Council whether the drawings and proposed routing are compliant with Town regulations prior to issuance of a permit. The applicant shall bear costs associated with the Town's review of the plans.

Cross reference— Buildings and building regulations, ch. 6.

Every building hereafter erected or moved shall be on a lot adjacent to an approved street, and all structures shall be so located on lots as to provide safe and convenient access for servicing, fire protection, and required off-street parking.

All lots on which structures are to be built shall have a minimum width of twenty-five (25) feet along or adjacent to an approved street. The Town Council may provide a waiver to this requirement after considering recommendations of the Planning and Zoning Board.

Major recreational equipment is defined as including boats and boat trailers, pickup campers or coaches (designed to be mounted on an automotive vehicle), motorized dwellings, collapsible camping trailers or motorized dwellings, tent trailers and the like, and cases or boxes used for transporting recreational equipment whether occupied by such equipment or not.

1.

No major recreational equipment shall be parked or stored in any residential front yard in any residential district for more than forty-eight (48) hours during loading or unloading.

2.

No such major recreational equipment shall be used for living, sleeping, housekeeping, office, or commercial purposes when parked or stored on a residential lot, or in any location not approved for such use.

3.

No such major recreational equipment shall be located within a public right-of-way.

4.

If such equipment is a collapsible camping trailer, the trailer shall be stored in a collapsed state.

Mobile homes or other mobile equipment or structures used temporarily in connection with construction, used as a dwelling, office or sales room may be located temporarily in all districts only after the release of a building permit and during the period of construction activity, under a temporary zoning permit, provided however, said trailer must be removed within ten (10) days after completion of construction.

Cross reference— Boats, marinas and waterways, ch. 5.

No automotive vehicles or trailers of any kind or type or any recreational equipment without required current license plates shall be parked or stored on any residentially zoned property other than in an enclosed building, carport or behind a barrier which obscures visibility from any public or approved private street, or adjacent property provided the location is not in any required yard area. This section shall not apply to operative agricultural vehicles or equipment within an RR-65 district.

Any above referenced vehicles or equipment that are visible from a public or private street or from adjacent property shall be titled to the property owner or legal resident or it shall be considered abandoned property under ordinance 3-1-77, § 1 (Section 11-26, Town of Malabar Code of Ordinances).

(Ord. No. 92-8, § 1(F), (G), 8-18-92)

No dwelling unit shall be located closer than five hundred (500) feet from the railroad tracks unless it has been soundproofed to attenuate an exterior sound pressure level of one hundred (100) decibels.

All sidewalks, other walkways, streets, drainage facilities, utilities or other on- or off-site improvements shall meet applicable standards of the Town's subdivision regulations for sidewalks.

The keeping of grazing animals shall be allowed in any rural residential district provided that where the lot size is less than two and one-half (2½) acres, one (1) animal shall be allowed for the first acre plus one (1) additional animal for each additional one-half (½) acre thereafter.

Cross reference— Animals, ch. 4.

Editor's note— Ordinance No. 04-08, § 3, adopted July 12, 2004, repealed § 1-5.20 in its entirety. Formerly, such section pertained to residential structures on lots less than one acre in area and derived from Ord. No. 90-5, 4-17-90.

A mobile home may be an accessory use on any parcel on which the principal use is a church or a school. Any such mobile home shall be used exclusively as a single-family residence for a caretaker or security guard serving the principal institutional use on the premises.

Any site work adding more than 30 yards of material or disturbing more than 1,000 square feet of land shall not be undertaken without prior application, approval, and issuance of a permit by the Town in order to assure no adverse impacts will occur on adjacent lands and to assure appropriate erosion control measures are followed. See Article VII, Site Plan Design and Article VIII, Surface Water Management.

A.

Purpose and intent. The intent of this article is to promote consistent regulations related to land-disturbing and fill activities on any land area greater than 1,000 square feet within the Town to ensure the protection of natural resources, water quality, flood prevention and erosion control measures are followed.

For the purpose of this article, the following terms, phrases, words and their derivation shall have the meaning given herein. When not inconsistent with the context, words used in the present term include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory. Terms listed in Article VII and Article VIII may also apply to this article.

Erosion and sedimentation control permit. A permit issued by the Town based on an approved erosion and sedimentation control (ESC) plan in conjunction with development permit or redevelopment approval.

Filling (fill). The placement of any soil or other solid material either organic or inorganic on a natural ground surface or an excavation in an effort to change the existing grade or recompose the soil.

Finished grade. The final grade or elevation of the ground surface forming the proposed design.

Land-disturbing activity. Any land change which may result in soil erosion from water or wind; including, but not limited to, clearing, dredging, grading, excavating, transporting and filling of land and for which a ESC permit is required.

Sediment. Solid material, both mineral and organic, that is in suspension, is being transported, or has been moved from its site of origin by air, water, ice or gravity as a product of erosion.

Slope. Degree of deviation of a surface from the horizontal usually expressed in ratio of horizontal to vertical dimension.

Stabilization. The process of establishing an enduring soil cover of vegetation and/or mulch or other ground cover and/or a combination when installing temporary or permanent structures for the purpose of reducing to a minimum the transport of sediment by wind, water or gravity.

Structural practices. Soil and water conservation measures other than vegetation, utilizing the mechanical properties of matter for the purpose of either changing the surface of the land or storing, regulating, or disposing of runoff to prevent excessive sediment loss; including, but not limited to open sediment basins, dikes, level spreaders, waterways or outlet diversions, grade stabilization structures, sediment traps, land grading, etc.

Unacceptable filling (fill). Any material from another site other than excavated earth. Any material prohibited as fill material by state or county regulations.

Watercourses. Any natural or artificial watercourse, stream, river, creek, channel, ditch, canal, conduit, culvert, drain, waterway, gully, ravine or wash in which water flows either continuously or intermittently and which has a defined channel, bed and banks, and including any area adjacent thereto subject to inundation by reason of overflow of flood water.

(Ord. No. 91-1, 3-19-91; Ord. No. 2021-20, § 1, 9-27-21)

Editor's note— Ord. No. 2021-20, § 1, adopted Sept. 27, 2021, changed the title of § 1-5.22 from "land excavation or fill" to read as herein set out.

(a)

Scope and exclusions. This section shall apply to any land-disturbing activity involving 1,000 square feet of land, undertaken by any person on any lands, except for the following:

(1)

Minor land-disturbing activities such as home gardens and individual home landscaping, repairs, maintenance work, or other related activities which result in minor soil erosion, except those affecting drainage easements.

(b)

Procedure for permitting land-disturbing activity.

(1)

No person shall perform any land-disturbing activity without first obtaining a permit from the Building Department after certification by Town personnel that the proposed activity is consistent with these regulations. Such permit shall be in addition to any other permits or approvals required for the project by any other ordinances, rules and regulations in effect.

(2)

Application for a land disturbing activity must be made to the Town on an application form provided by the Town and must be accompanied by an erosion and sedimentation control plan. The applicant's erosion and sedimentation control plan shall include, as a minimum, the following information for the entire tract of land to be disturbed regardless of whether the tract will be developed in stages:

a.

A narrative description of the overall project. This narrative shall include:

1.

Anticipated starting and completion dates for each sequence and stage of land disturbing activities and the expected date the final stabilization will be completed.

2.

A description of the sediment control program and sediment control practices.

3.

An adequate description of general topographical and soil conditions of the tract.

4.

A description of the zoning classification and uses of adjacent property and a general description of existing structures, building and other fixed improvements located within a perimeter of 200 feet of the boundary line of applicant's property.

5.

A description of the maintenance program for sediment control facilities including inspection programs, revegetation of exposed soils, method and frequency of removal and disposal of solid waste material removed from control facilities and disposition of temporary structural measures.

6.

The type of soil or material to be used for filling, if applicable.

b.

Maps, drawings and supportive computations bearing the signature and seal of a licensed engineer and containing:

1.

A site location drawing of the proposed project indicating the location of the proposed project in relation to jurisdictional boundaries of roadways and watercourses.

2.

A boundary line survey of the site on which the work is to be performed.

3.

A plan for temporary and permanent vegetative and structural erosion and sediment control measures.

(3)

Approval of application and issuance of permits.

a.

The Town Building Official or designee shall certify the erosion and sedimentation control plan upon finding that the requirements of this section have been met.

b.

If the tract is to be developed in phases, then the Building Department may issue a separate permit for a master plan or for each phase.

c.

The permit may be suspended or modified by the Town upon a finding that the holder is not in compliance with this section or has violated any of the provisions or conditions of the permit.

d.

No building permit shall be issued until a required land disturbing ESC permit certifying approval of the erosion and sedimentation control plan is obtained in accordance with this section.

(c)

Principles and standards.

(1)

Implementation. Soil erosion and sediment control measures shall conform to the standards and specifications of this chapter. The application of measures shall apply to all features of the site, including street and utility installations, drainage facilities, watercourses, and other temporary and permanent improvements. Measures shall be installed to prevent or control erosion and sediment pollution during all stages of any land-disturbing activity.

(2)

General design principles. Practical combinations of the following principles shall be utilized as a minimum, in planning measures to be installed for any land-disturbing activity:

a.

The land-disturbing activity shall conform to existing topography and soil type so as to create the lowest practical erosion potential.

b.

Land-disturbing activities shall be conducted in a manner minimizing erosion.

c.

The disturbed area and the duration of exposure to erosive elements shall be kept to a practicable minimum.

d.

Erosion control must be strictly maintained during cut and fill operations.

e.

Disturbed soil shall be stabilized as quickly as practicable or as directed.

f.

Whenever feasible, natural vegetation shall be retained, protected and supplemented.

g.

Temporary vegetation or mulching shall be employed to protect exposed critical areas during development.

h.

Permanent vegetation and structural erosion control measures shall be installed as soon as practicable.

i.

Adequate provisions must be provided to minimize damage from surface water to the cut face of excavations or the sloping surface of fills.

j.

To the extent necessary, sediment in runoff water must be trapped by the use of debris basins, sediment basins, silt traps or similar measures until the disturbed area is stabilized.

k.

Cuts and fills must be constructed in such a manner that erosion and runoff from the site does not endanger adjoining property.

l.

Fills may not encroach upon natural watercourses or constructed channels in a manner so as to adversely affect other property owners without adequate provisions for an equivalent alternate system with a positive outfall.

m.

Rights-of-way, including streets and sidewalks or pedways, and drainage ways, or watercourses shall be kept clear of all debris/dirt, etc.

n.

Grading equipment must cross flowing streams by means of bridges or culverts except when such methods are not feasible and provided in any case, that such crossings are kept to a minimum, and sedimentation control devices are provided.

(d)

Maintenance. Maintenance of all soil erosion and sedimentation control practices whether temporary or permanent, shall be at all times the responsibility of the owner.

(Ord. No. 2021-20, § 1, 9-27-21)

Editor's note— Ord. No. 2021-20, § 1, adopted Sept. 27, 2021, changed the title of § 1-5.23 from "construction of driveways, swales, and other improvements affecting drainage" to read as herein set out.

Cross reference— Buildings and building regulations, ch. 6; flood damage prevention, ch. 9.

Within the RR-65, RS-21, RS-15, RS-10, RM-4, RM-6, and R-MH districts, model homes shall be regulated through the issuance of a model home permit. The permit shall be issued for a period not to exceed one (1) year. The Town Council may renew said permit upon application, provided that the model home has been constructed and operated in accordance with this ordinance.

1.

Notification of Adjacent Property Owners. Upon application for a model home permit, the applicant shall inform the Town Clerk of the names and addresses of all property owners who own property within a one hundred and fifty (150) foot radius of the site of the proposed model as shown on the most recent Brevard County Tax Roll. The Town Clerk shall notify each property owner on said list of the pending application and the date, time and location when the Town Council shall consider said application. The Clerk shall make every effort to mail said notices at least seven (7) days prior to the date of the Council meeting. Failure to mail or deliver said notices shall not be grounds for cancellation or revocation of said permit, if granted.

2.

Restrictions on Use. A permit holder may not use the model home as his or her place of business. The model home shall be used for display purposes only, and not as a contractor's office, real estate office, or annex thereof. However, price quotations may be given and binders may be executed on the premises.

3.

Compliance with District Regulations. The model home shall meet all district requirements for lot and yard dimensions.

4.

Office Furniture/Equipment and Construction Materials Equipment Prohibited. No office furniture or office equipment is permitted in the model; and no construction materials or construction equipment may be stored in the model, on the site, or on adjoining sites.

5.

Restrictions on Hours of Operation. Business activity may be conducted at the model home only between the hours of 9 a.m. and 6 p.m., seven days per week; and not more than two permanent employees (in addition to the owner thereof) shall be authorized to remain in the model during the business day.

6.

Signage Controls. All signs shall conform with the Town signage regulations; however, on-premises model home signs shall not be illuminated.

7.

Required Lighting. Model homes may be illuminated, but only for security purposes and shall not cause a glare or infringe on neighboring properties or impede traffic.

8.

Parking Spaces, Ingress and Egress. At least five (5) parking spaces shall be provided on the same lot as the model, or on a contiguous lot, owned by the contractor or developer, or in the street right-of-way immediately in front of said model, and shall be maintained so long as the model home is used as such, as follows:

(a)

A plan for all parking facilities shall be submitted to the Building Official and approved by the Building Official prior to the issuance of a permit.

(b)

Any parking area which is located on a corner lot shall be designed so as not to obstruct the view of approaching traffic.

(c)

Ingress and egress to the parking area shall be a minimum of thirty (30) feet distant from any corner and also a minimum distance of ten (10) feet from an interior property line. The Town Council may grant a waiver to this requirement after considering the recommendations of the Planning and Zoning Board and the Town staff.

9.

Violations and Enforcement. Where a violation of these restrictions on the use of model homes is determined to exist by the Town Council, the certificate authorizing such model home use shall be revoked and no such certificate shall be reissued for a period of one (1) year following the date of the Town Council's determination.

Cross reference— Buildings and buildings regulations, ch. 6.

Editor's note— Ord. No. 2021-10, § 1, adopted Aug. 2, 2021, repealed § 1-5.25, which pertained to home occupations and derived from Ord. No. 92-8, § 1(A), adopted Aug. 18, 1992; Ord. No. 08-01, § 3, adopted March 3, 2008.

The following provisions shall be enforced in regulating the location and construction of swimming pools:

1.

Setbacks for swimming pools and pool enclosures.

a.

There shall be a minimum of ten (10) feet between any lot line and the water's edge of a pool.

b.

There shall be a minimum of five (5) feet between any structure and the water's edge of a pool.

c.

Screen enclosures and/or decking shall be a minimum of four (4) feet from any property line.

d.

No portion of any pool, deck, or screen enclosure may encroach into an easement.

2.

Compliance with other applicable laws. All swimming pools shall conform to the applicable provisions of the adopted model Swimming Pool Code and the applicable laws and rules of the State of Florida.

(Ord. No. 98-3, § 2, 9-9-98)

Cross reference— Buildings and building regulations, ch. 6.

General provisions. It shall be a violation of this ordinance for any person to construct, or permit to be constructed, or alter an existing decorative water feature or pond within the Town of Malabar without first obtaining a decorative water feature or pond permit from the Town of Malabar.

1.

Definitions. As used in this section the following words and phrases shall have the following definition:

A.

Allowable material shall mean uncontaminated sand, soil or dirt or other items approved by the Town. Construction debris and yard waste shall not be considered allowable material.

B.

Construction debris shall mean material generally considered not to be water soluble and non-hazardous in nature, including but not limited to steel, glass, brick, concrete, asphalt roofing material, pipe, gypsum wallboard and lumber, metal, asphalt paving material, from the construction or destruction of a structure as part of a construction or demolition project or from the renovation or maintenance of a structure.

C.

Decorative water feature (DWF) shall mean any excavation for the purpose of retaining water wherein the surface area is one thousand (1,000) square feet or smaller in size. For purposes of complying with applicable set-backs a DWF shall be considered a structure.

D.

Depth, maximum permitted. The maximum depth allowed for a DWF or a pond is twelve (12) feet. For example per the UF Extension Service ponds should be at least six (6) to eight (8) feet deep. Shallow water should be avoided unless the site is to be used to attract waterfowl.

E.

Excavated material shall mean the material, not top soil, removed from the project site. All topsoil shall be used on site. Use of other excavated material shall be used on the property where the DWF or pond is constructed.

F.

Freeboard. Freeboard is the safety feature to be incorporated into the design for all ponds. Freeboard is the added height (berm) of the soil surface over the design water surface elevation.

G.

Impound Area. The area of the pond or DWF that holds the water.

H.

To fill shall mean the adding of allowable material to alter the existing topography or characteristics of the surface area or depth of an existing decorative water feature or pond.

I.

Littoral zone shall mean that portion of the decorative water feature or pond which is close to the shore and allows sunlight to reach the bottom, typically less than three (3) feet deep.

J.

Pond shall mean any excavation for the purpose of retaining water wherein the surface area is greater than one thousand (1,000) square feet in size. Any fill activity which reduces the surface area or depth of an existing pond, regardless of size, may only be accomplished after a permit authorizing such activity has been issued. For purposes of complying with applicable set-backs a pond shall be considered a structure.

K.

Project site shall mean the area where the decorative water feature or pond shall be located and all other affected areas of the property.

L.

Water source shall mean the source of the water filling the DWF or pond, included but not limited to ground water table, wells, and springs.

2.

Permits for decorative water features and ponds.

A.

Decorative water feature (DWF). Any person wishing to construct, alter, or to fill a DWF within the Town of Malabar must, as a precondition, apply for a DWF permit. In order to obtain a decorative water feature permit, an applicant must provide the following:

The applicant is required to submit an original and two (2) detailed drawings with the following information shown:

1.

Boundary of property shown by a heavy line—i.e., a sketch, property survey, aerial survey, plat map; a professional signed and sealed survey is not required.

2.

Indicate on sketch the location, size, dimension and depth of DWF to be constructed or filled.

3.

Existing structures shown on drawing (including setbacks from all property lines).

4.

An identification of trees in DWF project site with a dbh (dimension at breast height) of eight (8) inches or greater. This includes both trees to remain and those proposed for removal.

5.

Location of well(s) and drain field(s) within seventy-five (75) feet of project site.

6.

Evidence that the DWF project site is not in a wetland. This could be a letter from Florida Department of Environmental Protection.

7.

Plan for use of excavated material or written statement on method of disposal. If being used on site, show on sketch where materials will be used or type of material to be used for filling the DWF.

8.

When filling in a DWF indicate the type of material to be used and the method of compaction.

9.

Stormwater drainage/retainage and overflow plan. Indicate with arrows on sketch how overflow water from DWF will drain.

10.

Refer to DWF checklist provided.

B.

Ponds. Any person wishing to construct, alter, or to fill an existing pond within the Town of Malabar must, as a precondition, apply for a pond permit. In order to obtain a pond permit, the applicant is required to submit an original and two (2) sign/sealed engineered site plans with the following information shown:

1.

Boundary of property will be shown by heavy line—i.e. sketch, property survey, aerial survey, plat map and topography.

2.

Proposed project site location, dimensions and depth of pond to be constructed or filled showing setbacks from property lines.

3.

Dimensions to show the side slope elevations.

4.

Existing structures shown on site plan (including setbacks from all property lines).

5.

An identification of trees in pond project site with a dbh (dimension at breast height) of eight (8) inches or greater.

6.

Location of well(s) and drain field(s) within seventy-five (75) feet of project site.

7.

Evidence that the pond project site does not affect wetlands. This could be a letter from Florida Department of Environmental Protection.

8.

Site plan to show use of top soil and estimated volume of excavated material at the project site. Show on site plan where material will be used including engineered estimates of post construction topography. If material is not useable, a letter from a Florida licensed engineer is required to be submitted to the town stating why the material is not suitable, i.e. due to contamination, muck, etc or the amount exceeds what can be put on the site due to layout of property.

9.

When filling in a pond, a written explanation on the type of material to be used to fill the pond and the method of compaction.

10.

Stormwater drainage/retainage and overflow plan. Indicate with arrows on site plan how overflow water from pond will drain.

11.

Refer to pond checklist provided.

3.

Design considerations for decorative water features or ponds.

A.

Design considerations. Side slopes depend on the stability of the excavated material. For example side slopes shall mean the ratio between the horizontal and vertical distance of excavated ponds as measured from the edge of the water and should be no steeper than natural angle of repose of the material being excavated. For example clay soils have a steeper angle of repose than sandy soils.

B.

Site selection. Site selection and placement of pond are critical to the success of the pond. The water source for the pond may be surface runoff from the pond watershed (the area that drains into the pond) or it may come from subsurface seepage in areas with high water tables. Factors such as soil characteristics and the existence of local springs must be considered in site selection. If the primary use of the pond is fire protection it should be located near the structures to be protected.

C.

Ponds should have a minimum of one (1) foot of freeboard or minimum amount determined by Florida licensed engineer to keep water from washing over the sides of the pond due to wave action or flooding.

D.

A pond area with high amounts of clay is desirable for retaining water. Sandy clays and loam soils will still impound water. Soils with high levels of sand or gravel may have excessive seepage unless water tables are naturally high. A pond sealer or lining may be necessary in these situations. The decision to install a pond liner shall be that of the applicant.

4.

Review process for decorative water features or ponds.

A.

Decorative water feature (DWF). The following process for review shall apply to all permit applications presented to the Town of Malabar for consideration.

1.

The application will be forwarded to the Building Official for review. The Building Official may visit the project site to verify information.

2.

If all information is compliant with Town Code, the Building Official will approve the application and a permit will be issued. The permit fee will be consistent with the fee resolution adopted by council.

3.

If the Building Official approves the permit with conditions, the applicant may appeal the decision as stated in Section 9.

4.

If the Building Official denies the permit for non-compliance, the applicant may appeal the decision as stated in Section 9.

B.

Ponds. The following process for review shall apply to all pond permit applications presented to the Town of Malabar for consideration.

1.

The application will be forwarded to the Building Official for review compliance. The Building Official may visit the project site to verify information but it is not mandatory.

2.

If all information is compliant with Town Code, the Building Official will forward a copy to the Town Engineer for review. If the Town Engineer determines that the pond, project site, drainage plan are all in compliance, the Town Engineer will approve the permit application and a permit will be issued. The permit fee will be consistent with the fee resolution adopted by council.

3.

If the Building Official or Town Engineer approves the permit with conditions, the applicant may appeal the decision as stated in Section 9.

4.

If the Building Official or Town Engineer denies the permit for non-compliance, the applicant may appeal the decision as stated in Section 9.

5.

Performance standards for the construction of a decorative water features and ponds.

A.

Setbacks shall be as stated in Table 1-3.3.A pertaining to structures for the applicable zoning category.

B.

Depth shall in no case exceed twelve (12) feet for either a DWF or pond.

C.

Construction of a DWF or pond or related site grading shall not adversely affect offsite drainage patterns.

D.

Uses of excavated material. All excavated topsoil shall remain on site. All other excavated material, unless otherwise provided for herein, shall be used on site. Off-site disposal of excavated material, except topsoil, shall be permitted under the following conditions:

1.

For any DWF or pond for which a permit is required excavated material may be disposed of offsite if a certification is presented to the Town by a Florida licensed engineer stating that the excavated material, except topsoil, can not be utilized on site. In submitting the certification, the Engineer shall take the following into consideration:

a.

The size of the site.

b.

Available on site retention.

c.

The impact of onsite uses may have on adjoining properties.

d.

No excavated material may be sold or offered to sale or trade or bargained for anything of value.

e.

Excavated material for the purpose of mining is prohibited.

2.

Excavated material which is unsuitable for use on the site because of high organic content (muck) may be disposed of off-site if approved by Town Engineer.

E.

Discharge structures shall be designed to limit the maximum discharge rate to the pre-development discharge rate. The discharge velocity shall be controlled so as to not erode or cause scouring of existing or proposed facilities. Discharge structures shall only discharge to a point of legal positive out-falls.

6.

Completion of decorative water features and ponds.

A.

Decorative water feature or pond permits issued pursuant to this section shall be effective for a period of one hundred eighty (180) days from the date of issue.

B.

An extension may only be granted once upon good cause after review and approval by the Town Council. Any request for extension shall be made in writing and filed with the Building Department prior to the expiration of the permit. The request for extension will be put on the next available Town Council agenda. The Town Council may entertain an extension filed after the existing permit expired for good cause shown; however, no request for extension shall be entertained by the Town Council which is filed thirty (30) days or greater from the expiration of the permit.

C.

Refusal by the Town Building Official to issue a decorative water feature or pond permit extension may be appealed to the board of adjustment in the same manner set forth in Section 9 below.

D.

The routine maintenance and upkeep of a DWF or Pond will not require a permit.

7.

Standards for fill activities.

A.

No permit for filling in an existing decorative water feature shall be reviewed unless a written statement that the filling will not adversely affect the natural environment of the applicant's property or adjacent properties.

B.

No permit for filling in an existing pond shall be reviewed unless written evidence from the outside jurisdictional agency is attached to the application indicating that the filling will not adversely affect the natural environment of the applicant's property or adjacent properties.

8.

Failure to complete construction of decorative water features or ponds.

A.

A fine of up to two hundred fifty dollars ($250.00) per day may be assessed against any applicant who fails to complete a DWF or pond within the six (6) month period. A fine may be levied per Town Code.

B.

Further, the Town, at its discretion, may require the applicant to restore the land to the pre-permit condition if it is not completed within the allotted time.

C.

It shall be the obligation of the applicant to notify the Town of completion. The DWF or pond shall be complete only after the final inspection by the Town.

9.

Appeal process for decorative water features and ponds.

If an applicant's permit is approved with conditions or denied, the applicant shall have the right to appeal such conditions or denial to the Board of Adjustment under the following procedure:

A.

An appeal made to Board of Adjustment by the applicant shall be made within ten (10) business days of the applicant receiving notice of the approval with conditions or denial of the permit.

B.

To appeal a decision to the board of Adjustment, the applicant must submit, in writing, a notice to the Board of Adjustment of the intention to appeal the decision of the Town Engineer or Building Official and request the matter to be placed on the Board's agenda. The notice of appeal shall contain the basis upon which the appeal is being made.

C.

Upon receipt of a timely notice of appeal, the Town Clerk shall set the matter on the Board of Adjustment's agenda within forty-five (45) days of the date of notice of appeal. The Town Clerk shall submit all documentation relating to the application and permit to board for review.

D.

The Board of Adjustment shall review the issue and determine whether the decision of the Town Engineer or Building Official shall be upheld, modified or reversed. All decisions of the Board of Adjustment are final and there shall be no rehearing entertained. The proceedings before the Board of Adjustment shall be quasi-judicial.

E.

Appeals of decisions of the Board of Adjustment may be taken to a court of competent jurisdiction within thirty (30) days of the rendition of the decision by the Board of Adjustment.

(Ord. No. 91-1, 3-19-91; Ord. No. 03-12, § 1, 12-1-03; Ord. No. 12-60, § 1, 12-3-12)

(a)

Purpose. The purpose of this ordinance is to provide a regulatory strategy for outdoor lighting that will:

A.

Permit reasonable uses of outdoor lighting for night-time safety, utility, security, productivity and enjoyment;

B.

Curtail and reverse the degradation of the night-time visual environment and the night sky; and

C.

Preserve the rural nature of the Town by minimizing glare, obtrusive light, and artificial sky glow by limiting outdoor lighting that is misdirected, excessive, or unnecessary;

D.

Conserve energy and resources; and

E.

Help protect the natural environment from the damaging effects of night lighting from man made sources.

(b)

Applicability. Unless otherwise exempted under section 1.5.30, this section shall apply to all street lights, security lights, building lights, spot lights and all other lighting or modes of illumination that are installed in the residential, commercial, industrial and institutional zoning districts of the Town. All such lighting is hereby collectively referred to as "site lighting."

(c)

Exemption. The following luminaries and lighting systems are exempt from these requirements:

1.

Internally illuminated signs;

2.

Externally illuminated signs, except billboards, that do not exceed 4000 lumens;

3.

Temporary lighting for building, construction, special events, and holiday lighting;

4.

Lighting in swimming pools;

5.

Code required exit signs;

6.

Code required lighting for stairs and ramps;

7.

Lighting required and regulated by the Federal Aviation Administration, U.S. Coast Guard, or other federal or state agency.

8.

Interior lighting of structures;

9.

Municipally owned or maintained street lighting;

10.

Any pole mounted lighting where the pole, and light fixture do not exceed six (6) feet in height measured from the ground and the light bulb does not exceed one hundred (100) watts of incandescent lighting.

11.

Lighting that is used to illuminate the display of the American flag.

12.

Any lawful commercial business existing prior to January 12, 2006 which does not abut any residential district is hereby exempted from the requirements of section 1-5.31(vi) of this Code, provided, however, that site lighting on such a commercial business establishment is required to comply with the shielding requirements of section 1-5.31 of this Code.

(d)

Site lighting.

1.

All site lighting, whether pole-mounted or building-mounted shall be designed and installed to avoid direct glare, interference with vehicular traffic or cause interference with abutting property owners. In addition all site lighting must meet the following:

(i)

Site lighting, including lighting on billboards, shall either be down lit, shaded or shielded to prevent back lighting;

(ii)

Site lighting shall not be directed onto any abutting property;

(iii)

No site lighting in any residentially zoned district shall exceed 0.2 lux onto any adjacent property;

(iv)

Shielding shall be accomplished with the installation of an opaque shield;

(v)

Shielding and any structural part providing the shielding must be permanently affixed;

(vi)

No site lighting in any commercial, industrial or institutional zoning district shall exceed 0.2 lux onto any adjacent property.

2.

Pole mounted lighting. Site lighting mounted onto poles or any device intended for the mounting of lighting shall not exceed the maximum height allowed for street lighting.

3.

Lights mounted to buildings or structures. Site lighting mounted onto buildings or other structures shall not exceed the highest point of the roof of the building or structure upon which such lighting is located, however; lighting attached to residential structures or accessory structures thereto shall not exceed the height of the eave.

4.

The Town recognizes that some indirect off site illumination may occur. To that extent, site lighting meeting the criteria in this section shall be presumed in compliance with this Code.

(Ord. No. 06-01, § 1, 1-12-06; Ord. No. 07-04, § 1, 6-4-07)

(a)

A Malabar Vernacular architectural style for each structure is required. This shall include the following architectural elevations facing public rights-of-way on arterial roadways:

1.

A metal panel, 5-seam or metal shake roof is acceptable. A 5-tab twenty-five (25) year dimensional shingle roof or manufactured equivalent of a wood shake roof is acceptable. 3-tab roof shingles, barrel vaulted tiles, or corrugated roof systems are not permissible.

2.

Pitch of main roof, hipped or gable, shall be no greater than 5:12; mansard roof shall be no greater than 9:12; porch roof shall be a lower pitch than the main roof. A minimum 6" overhang is required for any roof structure. All structures must have a minimum 3:12 slope roof. Multiple roof systems with matching roof slopes are permissible. Low slopes ("Flat") roof systems are permissible when screened by a mansard roof or parapet wall meeting the design requirements.

3.

The predominant exterior color shall be pastel shades, white or light earth tones. Dark earth tones are acceptable in brick or stone.

4.

Manufactured brick or materials that have the appearance of brick are acceptable. Horizontally struck stucco, exterior insulated finish system stucco panels, board and batten, wood or vinyl siding, and stained hardwood panels shall also be considered acceptable finishes.

5.

Front porch. The front porch must encompass an area greater than fifty percent (50%) of the front facade. The porch must be a minimum of 60" in depth.

6.

Gingerbread trim and/or porch railings, columns or posts shall have the appearance of light frame wood construction.

7.

Trim colors shall be white or light pastels. (Trim shall be considered railings, columns, door and window surrounds, soffits, shutters, gutters and downspouts, and other decorative elements.) Trim finishes shall be of a contrasting lighter color than that of the primary building color with the exception of white as a primary building color.

8.

There shall be no area greater than four hundred (400) square feet of contiguous blank wall area on any front facade that remains unadorned by architectural features that include, but are not limited to, windows, doors, lights, banding trim or porch elements.

9.

There shall not be any singular facade that has greater than 100' lineal feet of run without a minimum sixteen-inch break, by using a directional or material change.

10.

Metal-clad structures are permissible. Internal bracing must be certified to accept additional finishes or structures applied to the exterior metal panels. No external "X" bracing is to be visible on any front facade. Finish panels must be able to accept a painted finish. All exterior wall finishes must match the primary building color. The use of corrugated, synthetic or fiberglass panels is prohibited on any front wall or any front roof surface. All design requirements must be met for metal-clad structures as for any other new structure.

(b)

The predominant exterior color shall be applied to all sides of the structure.

(c)

The design requirements listed above shall be applicable to all new construction in these zoning districts, and in the case of additions or renovations to, or redevelopment of, an existing building or project, where such addition, renovation or redevelopment exceeds fifty (50) percent of the square footage of the existing structure(s). A mirror building, defined as a building meant to compliment a pre-existing structure, of adjacent or connected properties, by use of identical material finishes, scale and form, shall be exempt from the design requirements. New buildings that are part of an overall campus plan that has an established architectural theme may be exempt from the design requirements herein with the approval of Town Council.

(d)

The design requirements listed above shall be applicable to all accessory structures not exempted by division (10)(c). Any accessory structure not meeting this requirement shall be screened so as to be not visible from the public right-of-way. Mechanical equipment such as gasoline pumps, air and vacuum machines, drive-through menu boards and speaker stations, drive-through teller stations, ATMs, and similar appliances which require direct access by the public shall be exempt from the design review requirements of this section.

(e)

Compliance with the requirements set forth in this subsection shall be demonstrated by submittal of building front elevations and color and material samples at the time of site plan review. By way of illustration and not by way of limitation the styles depicted in illustration numbers E(1)—E(7) are deemed "Malabar Vernacular Style".

(f)

Structures in the following use categories are exempt from the design review requirements of this subsection, including: public utility equipment, commercial towers, hospitals and churches.

(g)

The Town-wide Sign Code shall be adhered to with the following exceptions:

1.

Materials. The color, construction and material of each sign should be compatible with the architecture on the site.

2.

Design. Every sign frame or support shall be designed as a sympathetic architectural element of the building(s) to which it is principally related.

3.

Free standing signs shall have landscaping at the base.

(h)

Structures having a federal or state historic site status shall be exempt from this subsection.

(i)

The Town Council may, by resolution, adopt such administrative policies, manuals and/or fees as necessary to implement the design requirements identified above.

(Ord. No. 07-02, § 5, 4-2-07; Ord. No. 08-13, § 1, 10-20-08)

1.

Purpose and intent; program created; definitions.

a)

The purpose and intent of this part is to implement the pilot program established by F.S. § 509.223, by permitting public food service establishments within the Town subject to the terms and contained herein, to become exempt from certain portions of the United States Food and Drug Administration Food Code, as amended from time to time, and as adopted by the State of Florida Division of Hotels and Restaurants of the Department of Business and Professional Regulation, in order to allow patrons' dogs within certain designated outdoor portions of their respective establishments.

b)

Pursuant to F.S. § 509.233(2), there is hereby created in the Town a local exemption procedure to certain provisions of the United States Food and Drug Administration Food Code, as amended from time to time, and as adopted by the State of Florida Division of Hotels and Restaurants of the Department of Business and Professional Regulation, in order to allow patrons' dogs within certain designated outdoor portions of public food service establishments, which exemption procedure may be known as the Town of Malabar Dog Friendly Dining Program.

c)

As used in herein:

1.

"Division" means the Division of Hotels and Restaurants of the State of Florida Department of Business and Professional Regulation.

2.

"Dog" means an animal of the subspecies Canis lupus familiaris.

3.

"Outdoor area" means an area adjacent to a public food service establishment that is predominantly or totally free of any physical barrier on all sides and above.

4.

"Patron" means any guest, customer, or occupant of a public food service establishment.

5.

"Public food service establishment" has the meaning given it by F.S. § 509.013(5)(a), as may be amended from time to time.

6.

"Building Official" shall mean the Town of Malabar Building Official.

2.

Permit Required; Submittals.

a)

In order to protect the health, safety, and general welfare of the public, a public food service establishment is prohibited from having any dog on its premises unless it possesses a valid permit issued in accordance with this part. Applicants for such a permit shall pay a one time no-refundable permit fee of one hundred fifty dollars ($150.00) at the time of submitting the application for permit. The Town may change the amount of the permit fee by resolution.

b)

Applications for a permit under this part shall be made to the Building Official, on a form provided for such purpose by the Building Official, and shall include, along with any other such information deemed reasonably necessary by the Building Official in order to implement and enforce the provisions of this part, the following:

1.

The name, location, and mailing address of the subject public food service establishment.

2.

The name, mailing location, and telephone contact information of the permit applicant.

3.

A diagram and description of the outdoor area to be designated as available to patrons' dogs, including dimensions of the designated area; a depiction of the number and placement of tables, chairs, and restaurant equipment, if any: the entryways and exits to the designated outdoor area; the boundaries of the designated area and of any other areas of outdoor dining not available for patrons' dogs; any fences or other barriers; surrounding property lines and public rights-of way, including sidewalks and common pathways: and such other information reasonably required by the Building Official. The diagram or plan shall be accurate and to scale but need not be prepared by a licensed design professional.

4.

A description of the days of the week and hours of operation that patrons' dogs.

5.

All application materials shall contain the appropriate division issued license number for the subject public food service establishment.

3.

General Regulations; Cooperation; Enforcement.

a)

In order to protect the health, safety and general welfare of the public, and pursuant to F.S. § 509.233, all permits issued pursuant to this part are subject to the following requirements:

1.

All public food service establishment employees should refrain from making any contact with any dog and if contact should occur the employee shall wash their hands promptly after touching, petting, or otherwise handling any dog. Notwithstanding the above, employees shall be prohibited from touching, petting, or otherwise handling any dog while serving food or beverages or handling tableware or before entering other parts of the public food service establishment.

2.

Patrons in a designated outdoor area shall be advised that they should wash their hands before eating. Waterless hand sanitizer shall be provided at all tables in the designated outdoor area.

3.

Employees and patrons shall be instructed that they shall not allow dogs to come into contact with serving dishes, utensils, tableware, linens, paper products, or any other items involved in food service operations.

4.

Patrons shall keep their dogs on a non-retractable leash no longer than six (6) foot in overall length at all times and shall keep their dogs under reasonable control.

5.

Dogs shall not be held by patrons while on the premises or allowed on the laps of patrons, chairs, tables, or other furnishings.

6.

All table and chair surfaces shall be cleaned and sanitized with an approved product between seating of patrons. Spilled food and drink shall be removed from the floor or ground between seating of patrons.

7.

Accidents involving dog waste shall be cleaned immediately and the area sanitized with an approved product. A kit with the appropriate materials for this purpose shall be kept near the designated outdoor area.

8.

At least one sign reminding employees of the applicable rules, including those contained in this part, and those additional rules and regulations, if any, included conspicuous location frequented by employees within the public food service establishment. The mandatory sign shall be not less than eight and one-half (8½) inches in width and eleven (11) inches in height (8½ × 11) and printed in easily legible typeface of not less than twenty (20) point font size.

9.

At least one sign reminding patrons of the applicable rules, including those contained in this part. and those additional rules and regulations, if any, included as further conditions of the permit by the Building Official, shall be posted in a conspicuous location within the designated outdoor portion of the public food service establishment. The mandatory sign shall be not less than eight and one half (8½) inches in width and eleven (11) inches in height (8½ × 11) and printed in easily legible typeface of not less than twenty (20) point font size.

10.

At all times while the designated outdoor portion of the public food service establishment is available to patrons and their dogs, at least one sign shall be posted in a conspicuous and public location near the entrance to the designated outdoor portion of the public food service establishment, the purpose of which shall be to place patrons on notice that the designated outdoor portion of the public food service establishment is currently available to patrons accompanied by their dog or dogs. The mandatory sign shall be not less than eight and one-half (8½) inches in width and eleven (11) inches in height (8½ × 11) and printed in easily legible typeface of not less than twenty (20) point font size.

11.

Dogs shall not be permitted to travel through indoor or undesignated outdoor portions of the public food service establishment, and ingress and egress to the designated outdoor portions of the public food service establishment shall not require or allow entrance into or passage through any indoor or undesignated outdoor portion of the public food service establishment.

b)

A permit issued pursuant to this part shall not be transferred to a subsequent owner upon the sale or transfer of a public food service establishment, but shall expire automatically upon such sale or transfer. The subsequent owner shall be required to reapply for a permit pursuant to this part if such owner wishes to continue to accommodate patrons' dogs.

c)

In accordance with F.S. § 509.233(6), the Building Official shall accept and document complaints related to the Dog Friendly Dining Program within the Town and shall timely report to the Division all such complaints and the Town's enforcement response to such complaint. The Building Official shall also timely provide the Division with a copy of all approved applications and permits issued pursuant to this part.

d)

Any public food service establishment that fails to comply with the requirements of this part shall be guilty of violating this part and shall be subject to any and all enforcement proceedings consistent with the applicable provisions of the Town Code and general law. Each day a violation exists shall constitute a distinct and separate offense.

e)

Dog friendly dining shall only be allowed in those zoning districts in the Town where restaurants are permitted.

4.

Procedure for processing complaints. Except as provided herein all complaints for any alleged violation of these provisions shall be in writing directed to the Town's code enforcement officer and shall be handled pursuant to Article VII of Chapter 2 of the Code of Ordinances of the Town. Notwithstanding any provision to the contrary in Article VII of Chapter 2 of the Code of Ordinances of the Town, the following penalties for a violation of this section shall apply:

• First violation: Written warning.

• Second violation: Fifty dollar ($50.00) fine.

• Third violation: One hundred fifty dollar ($150.00) fine.

• Fourth violation: Revocation of permit.

(Ord. No. 07-14, § 1, 10-15-07)