A.

Purpose and Intent. This Section is intended to stipulate general provisions and criteria for considering the approval of conditional uses on specific sites within various zoning districts. Conditional uses shall be permitted only upon a finding that the respective use and proposed site plan satisfies the specific criteria of Section 1-6.1(C) cited herein.

B.

Specific Criteria Regulating Conditional Uses. A conditional use shall be permitted only upon a finding that the proposed conditional use, application, and site plan complies with the criteria herein unless the town determines that the proposed conditional use does not meet the criteria herein provided and the proposed conditional use is adverse to the public's interest. In addition to the site plan criteria of Article VII, an application for a conditional use shall describe the proposed land use characteristics and site plan techniques proposed to mitigate against possible adverse impacts to properties in the immediate vicinity. A conditional use permit applicant has the burden of proof to meet all the applicable requirements for the issuance of a conditional use. The applicant must demonstrate, by substantial competent evidence, that the application and all requirements and conditions for the granting of a conditional use have been met established and that the applicant accepts the conditions as recommended by the Planning and Zoning Board and those subsequently adopted and imposed by the Town Council relating to the conditional use.

1.

Characteristics of use described. The following characteristics of a proposed conditional use shall be clearly described as part of the conditional use application:

a.

Scale and intensity. Scale and intensity of use as measured by the following:

i.

Floor area ratio;

ii.

Traffic generation;

iii.

Square feet of enclosed building for each specific use;

iv.

Proposed employment;

v.

Proposed number and type of service vehicles;

vi.

Off-street parking needs; and

vii.

Other specifications and/or characteristics of the proposed use describing the nature, character, and intensity of the use, including compatibility with existing and anticipated uses within the immediate vicinity.

b.

Site improvements. On- or off-site improvement needs generated by the proposed use and not identified in the preceding subparagraph "a.":

i.

On- or off-site facilities required to serve the proposed uses such as utilities, public facilities, roadway or signalization improvements, or other similar improvements, including proposed accessory structures or facilities; and

ii.

Other unique facilities/structures proposed as part of site improvements.

c.

On-site amenities. On-site proposed to enhance site and planned improvements. Amenities including mitigative techniques such as open space, setbacks from adjacent properties, screening and buffers, including landscaped berms proposed to mitigate against adverse impacts to adjacent sites.

d.

Public facilities. If the conditional use is for a public or semi-public facility, the primary and auxiliary service areas shall be described together with the existing and anticipated network of related facilities accommodating service area needs within the incorporated and unincorporated areas of Brevard County.

2.

Criteria for conditional use review and approval. In addition to site plan identified in Article VII, applications for a conditional use shall clearly demonstrate the following:

a.

Land use compatibility. The applicant shall demonstrate that the conditional use, including its proposed scale and intensity, traffic generating characteristics, and off-site impacts are compatible and harmonious with adjacent land uses and will not adversely impact land use activities in the immediate vicinity.

Similarly, where the use is substantially different from other uses in the district and is not intended to serve the residents in the immediate vicinity, the applicant shall bear the burden of demonstrating that the use is appropriate to the subject site and immediate vicinity and cannot and/or should not be located at an alternative site. In order for a non-residential use to be approved within a residential area, the applicant must demonstrate that a location outside the residential area would not provide for the essential site location needs of the facility or use.

b.

Land use consistency. The applicant shall demonstrate that the conditional use is consistent with the Comprehensive Plan and compliant with all applicable federal, state, county and town laws and ordinances. Where permits are required from governmental agencies other than the town, these permits shall be obtained as a condition of approval.

c.

Land use capability. The applicant shall demonstrate that the land is capable of supporting the use, as measured by the following:

i.

Sufficient site size and adequate site specifications to accommodate the proposed use. The size and shape of the site, the proposed setbacks and buffer areas, the proposed access and internal circulation, and the site design enhancements must be adequate to accommodate the proposed scale and intensity of conditional use requested. The site shall be of sufficient size to accommodate site design amenities such as screening, buffers, landscaping, open space, off-street parking, efficient internal traffic circulation, and similar site plan improvements needed to mitigate against potential adverse impacts of the proposed use.

ii.

Public and semi-public facilities within residential areas. A public or semi-public facility proposed within any type of residential district must provide an essential service to residential dwelling units within the immediate vicinity and the applicant must demonstrate that alternative sites zoned for non-residential use cannot accommodate the functions of the facility.

iii.

Proper use of mitigative techniques. The applicant shall demonstrate that the conditional use and site plan has been designated to incorporate mitigative techniques needed to prevent adverse impacts to adjacent land uses. In addition, the design scheme shall appropriately address off-site impacts to ensure that land use activities in the immediate vicinity, including community infrastructure are not burdened with adverse impacts detrimental to the general public health, safety and welfare.

iv.

Hazardous waste and hazardous emissions. The proposed use shall not generate hazardous waste, hazardous emissions, or require use of hazardous materials in its operations without use of town approved mitigative techniques designed to prevent any adverse impact to the general health, safety and welfare. The plan shall provide for appropriate identification of hazardous waste and hazardous material, regulate its use, storage and transfer consistent with best management principles and practices. No use which generates hazardous waste, hazardous emissions or uses hazardous materials shall be located in the town unless specific location is consistent with the Comprehensive Plan, land development regulations, and does not adversely impact wellfields, aquifer recharge areas, or other conservation resources. Such uses shall be located within a non-residential district.

v.

Compliance with applicable laws and ordinances. A conditional use application shall demonstrate compliance with all applicable federal, state, county and town laws and ordinances. Where permits are required from governmental agencies other than the town, these permits shall be obtained as a condition of approval.

C.

Review Procedures. The application for a conditional use on a form to be provided by the Town Clerk shall be submitted to the Town Clerk with the site plan required pursuant to Sec. 1-7.1 of this Code. The procedure for approval shall be the same as for the procedures identified in Chapter VII for site plan review.

The applicant shall demonstrate on the site plan documents and scale drawings that the proposed improvements shall comply with all specifications cited in Table 1-6.1(B). The procedure for review by the Planning and Zoning Board and the Town Council shall be the same as stipulated for site plan review in Sections 1-7.1 and 1-7.5.

TABLE 1-6.1(B) CONDITIONAL LAND USE REQUIREMENTS

Note: Arterial streets refer to transportation linkages on the Major Thoroughfare Plan within the Comprehensive Plan (i.e., Malabar Road, US 1, and Babcock Street).

(1)

Minimum spatial requirements for public and private, primary and secondary educational institutions shall comply with standards used by the Brevard County School Board and the State of Florida.

(2)

Minimum spatial requirements for golf courses shall comply with standards recommended by the U.S. Golf Association or the American Society of Golf Architects.

(3)

Minimum spatial requirements shall comply with the requirements established by the Town of Malabar District Provisions or the Florida Statues, whichever requirement is greater.

(4)

Minimum spatial requirements for the American Insurance Association and the National Fire Prevention and Control Administration.

(5)

The Type A, B, and C screening requirements reflect the standards cited in Section 1-4.1(G)(2)(a)—(c).

(6)

No parking lot or structure within 200;ft; of residential or institutional district.

(7)

No more than two curb cuts shall be permitted to any one street frontage. The ingress-egress width shall be restricted to a maximum width of thirty (30) feet at the point of curvature at the property line; shall be located no closer than thirty (30) feet to a right-of-way intersection; and shall be at least ten (10) feet removed from property lines. A minimum fifty (50) feet separation shall be maintained between curb cuts. The Town may require controlled access, including dedication of cross easements and joint use of drive. The Town Council may grant a waiver to these requirements after considering the recommendations of the Planning and Zoning Board and the Town staff.

(8)

Shall not be located adjacent to a residential district, including the RR district.

(9)

Shall not be located within 1000 feet of a religious institution, educational institution, or public park.

(10)

Reference Town of Malabar Ordinance Regulating Adult Entertainment.

(Ord. No. 94-4, § 9, 4-3-95; Ord. No. 12-48, §§ 3, 4, 1-23-12; Ord. No. 14-01, § 4, 2-3-14; Ord. No. 2023-01, § 4, 12-4-23; Ord. No. 2023-03, §§ 1—3, 12-4-23)

Cross reference— Adult entertainment establishments, regulations, § 10-26 et seq.