ORD 08-01

ORDINANCE NO. 08-01

AN ORDINANCE OF THE TOWN OF INDIALANTIC, BREVARD COUNTY, FLORIDA RELATING TO ZONING; MAKING FINDINGS; AMENDING SECTION 17-3, TOWN CODE, REGARDING ZONING CODE INTEPRETATION; AMENDING SECTION 17-4(7) AND 17-127(16), TOWN CODE, RELATING TO THE DEFINITIONS OF “DWELLINGS” AND “VACATION RENTALS”; CREATING SECTION 17-117, TOWN CODE, PROVIDING REGULATIONS RELATIVE TO “VACATION RENTALS” AND PROVIDING PERFORMANCE STANDARDS, PROHIBITIONS, ENFORCEMENT, PENALTIES, AND PRIMA FACIE EVIDENCE OF VACATION RENTAL USE; AMENDING SECTIONS 17-121, 17-122, 17-123, 17-124, 17-125, 17-126, 17-128, 17-130, AND 17-131, TOWN CODE, PROHIBITING “VACATION RENTALS” AND “BED AND BREAKFAST FACILITIES” IN THE R-1A, R-1B, R-2, R-3, R-P, C, C-1, CH, SC, C-2 ZONING DISTRICTS; AMENDING SECTION 17-127, TOWN CODE, PERMITTING “VACATION RENTALS” AND “BED AND BREAKFAST FACILTIES” IN THE “T” ZONING DISTRICT; SPECIFYING PROHIBITED USES IN ALL ZONING DISTRICTS; PROVIDING FOR THE REPEAL OF CERTAIN INCONSISTENT ORDINANCES AND RESOLUTIONS; PROVIDING A SEVERABILITY/ INTERPRETATION CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE.

WHEREAS, the Town Council finds that the rental of dwellings or other structures for short-term use by visitors and transients is a commercial activity and is inconsistent with the use of zoning districts devoted to non-transient residential use;

WHEREAS, it is the intent of the Town Council to preserve single-family residential and lower density multi-family residential use from encroachment by commercial, transient rental activities by clarifying the existing intent of the Town Code with clear language defining what a transient, commercial rental or “vacation rental” is and affirmatively permitting it certain zoning districts and prohibiting in other zoning districts;

WHEREAS, the Town Council finds that the use of single-family residential properties for transient lodging as a commercial use is inconsistent with the purpose of the various zoning districts, including in particular the R-1A and R-1B zoning districts;

WHERAS, the Town Council finds that the commercial use of single-family, residential property for such purposes as vacation rentals which by their nature are transient and commercial in nature creates unmitigatable, adverse impacts on surrounding residential uses including, but not limited to, increased levels of commercial and residential vehicle traffic, parking demand, light and glare, and noise detrimental to surrounding residential uses and the general welfare of the Town;

WHEREAS, such commercial uses may increase the demand for public services, including, but not limited to, police, fire, and medical emergency services, and neighborhood watch programs, thereby necessitating a need for the Town to increase spending and collection of ad valorem revenues to fund increased services, which is inconsistent with the State directives that the Town cut spending, as embodied in two acts of the Florida Legislature, including HB 1-B (Spec.Sess. 2007) and SJR 4-B (Spec.Sess. 2007);

WHEREAS, the maintenance of the character of residential neighborhoods is a proper purpose of zoning, and the Town Council adopts the determinations of the California Supreme Court in Miller v. Board of Public Works of Los Angeles, 234 P. 381, 386-87 (1925), which the Town Council finds applicable to its restrictions upon vacation rental uses:

[W]e think it may be safely and sensibly said that justification for residential zoning may, in the last analysis, be rested upon the protection of the civic and social values of the American home. The establishment of such districts is for the general welfare because it tends to promote and perpetuate the American home. It is axiomatic that the welfare, and indeed the very existence of a nation depends upon the character and caliber of its citizenry. The character and quality of manhood and womanhood are in a large measure the result of home environment. The home and its intrinsic influences are the very foundation of good citizenship, and any factor contributing to the establishment of homes and the fostering of home life doubtless tends to the enhancement not only of community life but of the life of the nation as a whole;

WHEREAS, the Town Council finds that short-term tenants or transients have little interest in public agencies or in the welfare of the citizenry; that they do not: participate in local government, coach little league, join the hospital guild, lead a Scout troop, volunteer at the library, keep an eye on an elderly neighbor, or involve themselves in other aspects of the community and a residential neighborhood;

WHEREAS, the Town Council finds that transient, short-term tenants are literally here today and gone tomorrow-without engaging in the sort of activities that mold and strengthen a community;

WHEREAS, the Town Council finds that it is proper through the use of zoning to protect the integrity of residential neighborhoods by refusing to allow commercial activities to encroach upon residential areas and to do so promotes the general public welfare. Accord Brevard County v. Woodham, 223 So.2d 344 (Fla. 4^th DCA), cert. denied, 229 So.2d 572 (Fla. 1969); City of Miami v. Zorovich, 195 So.2d 31 (Fla. 3d DCA), cert. denied, 201 So.2d 554 (Fla. 1967);

WHEREAS, the Town Council further finds that this Ordinance does not deprive the owners of properties in residential districts of the reasonable, investment-backed expected use of their properties and leaves the owners of properties in residential districts with many economically viable uses of their property;

WHEREAS, the Town Council notes that owners of residential properties may: live in their homes permanently or occasionally; rent their homes for remuneration for period of at least 90 days; allow others to use their homes, without remuneration, for any length of time; use their properties for home occupations; and sell their homes or otherwise encumber them.

WHEREAS, the use of residential properties for “home occupational” purposes is easily distinguishable from the use of residential properties for “vacation rental” purposes;

WHEREAS, home occupations do not increase traffic, cause parking problems, or have similar adverse impacts of typical commercial uses, and the Town Council finds that they do not threaten the basic character of a residential neighborhood;

WHEREAS, home occupations strengthen the community by fostering the talents of its residents, allowing the full-time benefit and enjoyment of their homes without disturbing adjacent residents;

WHERERAS, the Town Council finds that long-term tenants may create as stable a community as permanent resident homeowners;

WHEREAS, the Town Council has difficulty in determining what the bright line distinction between long-term tenancy and short-term tenancy is, and the Town Council therefore, to the extent it may err, determines to err in favor of according residents as much freedom as reasonably possible to make use of their property by setting the bright line distinction between long-term tenancy and short-term tenancy as thirty days;

WHEREAS, the Future Land Use of the Town’s Comprehensive Plan provides as its Goal 1 that the Town shall “[m]aintain and perpetuate the primarily low density residential character of the Town with all other uses of land being secondary in nature while at the same time providing for commercial and professional areas to meet the needs of the residents”;

WHEREAS, the Town Council finds that vacation rental uses are inconsistent with the maintenance and perpetuation of the primarily low density residential character of the Town in that vacation rental uses are not truly residential in character but are transient, commercial uses;

WHEREAS, the Town Council finds that primarily residential uses with no transiency are found in the R-1A, R-1B, R-2, R-3, and R-P zoning districts;

WHEREAS, uses that are transient and commercial in nature allowing short-term tenancies are reserved for the TU zoning district along State Road A-1-A;

WHEREAS, Comprehensive Plan Future Land Element Policy 1.3 states: “Maintain and use existing commercial zoning restrictions to maintain commercial areas along Fifth Avenue and A-1-A; . . .”;

WHEREAS, the Town Council finds that a vacation rental use that is commercial in character while still permitting short-term tenancies is properly restricted to the TU zoning district, which zoning districts are along State Road A-1-A;

WHEREAS, Comprehensive Plan Future Land Element Policy 1.5 promotes the maintenance of “existing zoning pattern which protects the single family areas from the encroachment of incompatible uses . . . consistent with the low density residential character of the Town”;

WHEREAS, the Town Council finds that vacation rental uses are clearly prohibited in the R-1A, R-1B, R-2, R-3, and R-4 zoning districts by virtue of Future Land Use Element Policy 1.5;

WHEREAS, the Town Council and the Local Planning Agency, sitting as both the Zoning and Planning Board and the Local Planning Agency (hereinafter: the "LPA"), find that this Ordinance is consistent with the Town's Comprehensive Plan and in particular Goal 1, Policy 1.3, and Policy 1.5 of the Future Land Use Element; and

WHEREAS, the Town Council adopts the findings of the LPA as its own and finds that this Ordinance will promote the public health, safety, welfare, economic order, and public interest and convenience, by preserving established, non-transient residential areas from encroachment by transient or commercial activities; limiting encroachment into established non-commercial, residential areas by transient activities which have a tendency to include noise and partying from transients and vacationers during all hours of the day and night; and establishing areas within the Town in which transient or commercial short-time rentals may be used by vacationing individuals.

NOW, THEREFORE, BE IT ENACTED by the Town of Indialantic, Brevard County, Florida:

SECTION 1. That Section 17-121 of the Town Code of the Town of Indialantic, Florida, is hereby amended to read as follows:

Sec. 17‑3. Interpretation of provisions.

(a) In interpreting and applying the provisions of this chapter, they shall be construed as the minimum requirements for the promotion of the public health, safety, morals and general welfare of the community. It is not intended by this chapter to interfere with or abrogate or annul any easements, covenants or other agreements between parties, but where this chapter imposes a greater restriction upon the use of buildings or premises or upon the height of buildings, or requires larger open spaces than are imposed or required by other provisions, rules, regulations or by easements, covenants, or agreements, the provisions of this chapter shall control.

(b) Notwithstanding that the various zoning districts list as a prohibited use any use which is not a permitted use, the town council notes various uses are so similar to existing permitted uses as to be one and the same. Such uses are permitted by reasonable implication. In reviewing the zoning code to determine whether a use is permitted in a particular zoning district by reasonable implication, the code reviewer shall first be guided by the plain meaning of the code and secondarily by the intent of the town council and zoning and planning board in adopting and drafting the zoning code. The list of permitted uses may include those uses permitted by reasonable implication that are substantially similar in nature and character but not more intense or dense by use, not generating greater amounts of motor vehicle traffic or noise, and in the case of commercial uses, not normally operating earlier in the morning or later at night than other similar permitted uses; provided, that all other uses not expressly permitted or determined to be permitted by reasonable implication shall be prohibited.

SECTION 2. That Section 17-4 of the Town Code of the Town of Indialantic, Florida, is hereby amended to read as follows:

Sec. 17-4. Definitions.

As used in this chapter, the following words and phrases shall have the meanings indicated:

* * *

(21) Dwelling. A house, apartment, or building designed or used primarily for human habitation, but not including boardinghouses or rooming houses, hotels, motels, tourist courts, vacation rentals, or other structures for transient residents.

[Drafter’s Intent: The term “vacation rental” until the adoption of this Ordinance was not a defined term but fit within the catchall “other structures for transient residents” and was therefore a prohibited use. This ordinance is intended to clarify the existing intent of the Code that vacation rentals have never been, and now are expressly not permitted as a “dwelling.” It is the intent of the drafter that by adding “vacations rentals” to the definition above, that such use is clearly not considered to be treated as a “dwelling.” Further, given that the term “vacation rental” is now being added as a definition by this section of the Ordinance, it would be improper not to include the term as being excluded from the definition of a “dwelling.” The key to this amendment is that vacation rental-type uses have never fit within the definition of a “dwelling.”]

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(71) Vacant. A building or parcel of land either not occupied or used or in non‑operative status for a period of one year.

(71.1) Vacation Rental. An attached or detached residential structure or dwelling unit that is rented, leased or assigned for tenancies of less than ninety (90) days or three (3) calendar months, whichever time period is less, and for a monetary consideration, or which is advertised or held out to the public as a place periodically rented for a monetary consideration for periods of less than 90 days or three (3) calendar months, whichever time period is less. For the purposes of this chapter, a vacation rental is a commercial use. For the purposes of this definition, subleases for less than 90 days are to be considered as separate rental periods. This definition does not include month-to-month hold-over leases from a previous lease longer than 90 days. Vacation rental use does not include hotels and motels, which are specifically addressed in specific zoning districts. A vacation rental unit may also be a bed and breakfast facility. A vacation rental unit may be located in an apartment or condominium building or a single-family residential dwelling unit, but only as a specifically permitted use as is noted in a particular zoning district.

(72) Yard. An open space (except as permitted herein) other than a court, on a lot, unoccupied and unobstructed from the ground upward, except as otherwise provided in this Chapter. See also definitions of Front yard; Rear yard; Side yard, corner, and Side yard, interior.

SECTION 3. That the Code of Ordinances of Indialantic, Florida, is hereby amended by adding a new section, to be numbered section 17-117, which said section reads as follows:

Sec. 17-117. Vacation Rentals.

(a) Performance Standards. All vacation rentals dwellings qualifying under this section shall meet the following performance standards. These performance standards shall be included in the rental agreement and conspicuously posted inside the unit.

(1) Parking. For single family residential homes used as vacation rentals, there shall be at least two designated and available off-street parking space per unit.

(2) Excessive or late noise. Noise emanating from the resort dwelling shall not disturb the peace and quiet of the neighborhood vicinity in which the vacation rental is located. Sounds produced from any radio, stereo, television, amplifier, musical instrument, phonograph, device emitting sounds or audible noise, or similar device, shall not be discernable at the property line of the vacation rental unit after 10:00 PM and before 8:00 AM on Monday through Friday or before 9:00 AM Saturday and Sunday. The ambient noise level of the neighborhood is considered excessive which is discernable at the property line of a complainant is excessive noise after 10:00 PM and before 8:00 AM (weekdays) or 9 AM (Saturday and Sunday).

(3) Vehicles shall not be placed on the street or in yards. Watercraft and trailers shall comply with the provisions of Section 17-103 of the Town Code.

(4) No recreation vehicles shall be used for sleeping or overnight accommodations at or adjacent to the vacation rental unit.

(5) All trash and debris on the vacation rental property must be kept in covered trash containers.

(6) Vacation rentals must be registered, licensed and at all times be in compliance with all applicable state requirements contained in chapters 212 (Florida Tax & Revenue Act) and 509 (Public Lodging Establishments), Florida Statutes, as implemented by the Florida Administrative Code, as may be amended.

(7) The name, address, and telephone number of the vacation rental manager(s), the telephone number of town code enforcement department and the town police department shall be posted prominently inside each rental unit.

(b) Prohibitions, enforcement, and penalties.

(1) It shall be unlawful for any vacation rental unit owner, landlord, tenant, agent or other representative of a landowner to rent, lease, advertise or hold out for rent any structure or unit for vacation rental use in any district where a vacation rental use is prohibited.

(c) Prima facie evidence of vacation rental of a dwelling unit shall include (i) registration or licensing for short-term rental or transient rental use by the state under chapters 212 (Florida Tax and Revenue Act) and 509 (public lodging establishments), Florida Statutes; (ii) advertising or holding out a dwelling unit for vacation rental use; (iii) reservations, booking arrangements or more than one (1) signed lease, sublease, assignment, or any other occupancy or agreement for compensation, trade, or other legal consideration addressing or overlapping any period of eighty-four (84) days or less; (iv) the use of an agent or other third person to make reservations or booking arrangements; (v) on a non-homestead property, different occupants have been observed on at least two separate occasions within any 90 day period; or (vi) on a non-homesteaded property, different vehicles with different license plate tags have been observed parked on at least two separate occasions in any 90 day period.

(d) In addition to any other remedies available to the town, the town or any adversely affected party may enforce the terms of this section in law or equity; provided, that enforcement may only be against the owner, operator, manager, landlord, or tenant of a vacation rental unit. An “adversely affected party” is a resident or property owner of the town whose property is located within three-hundred (300) feet of the vacation rental unit involved in an action brought pursuant to this sub-section. An adversely affected party may seek injunctive relief in a court of competent jurisdiction to prevent a violation of the zoning code or this section. Attorney's fees and costs incurred in an action to enforce these regulations concerning vacation rental use(s) may be awarded to a substantially prevailing party at the discretion of the court.

SECTION 4. That Section 17-121 of the Town Code of the Town of Indialantic, Florida, is hereby amended to read as follows:

Sec. 17‑121. "R‑1‑A" Single‑Family Residence Districts.

Within "R‑1‑A" Single‑Family Residence Districts the following regulations shall apply:

(1) Permitted uses. The following uses only shall be permitted:

(a) Single‑family dwellings.

(b) Parish houses.

(d) Public utilities serving the neighborhood area, excluding towers, buildings or storage areas.

(e) Gardening activities customarily incidental to single‑family dwellings.

(f) Satellite dish antenna in the manner specified in section 17-111.

(g) Community residential home (level I facility only) subject to satisfying the standards set forth in section 17-115, town code.

(2) Accessory buildings, structures and uses.

(a) Accessory buildings, structures and uses customarily incidental to any use permitted by this section shall be allowed.

(b) All accessory buildings and structures located in the rear yard shall be set back not less than four (4) feet from all lot lines. On corner lots when the lot abuts two (2) intersecting streets, accessory use structures shall be set back not less than twenty-five (25) feet from any lot line abutting a street or public right-of-way. All accessory use structures shall be set back not less than five (5) feet from any principal or primary permitted use.

(2.5) Prohibited uses. The following are specifically prohibited uses. Merely because a use is not specifically listed does not mean that the use is not prohibited.

(a) All uses which are not permitted uses.

(b) Vacation rental.

[Drafter’s Intent: As noted above in Section 2. of this Ordinance with regard to the amendment to the definition of a “dwelling,” what is now defined as a “vacation rental” has never been included within the definition of a “dwelling.” This amendment merely codifies the pre-existing intent of the zoning code.]

* * *

SECTION 5. That Section 17-122 of the Town Code of the Town of Indialantic, Florida, is hereby amended to read as follows:

Sec. 17‑122. "R‑1‑B" Single‑Family Residence Districts.

Within "R‑1‑B" Single‑Family Residence Districts the following regulations shall apply:

(1) Permitted uses. The following uses only shall be permitted:

(a) Single‑family dwellings.

(b) Parish houses.

(d) Public utilities serving the neighborhood area, excluding towers, buildings or storage areas.

(e) Gardening activities customarily incidental to single‑family dwellings.

(f) Satellite dish antenna in the manner specified in section 17-111.

(g) Community residential home (level I facility only) subject to satisfying the standards set forth in section 17-115, town code.

(2) Accessory buildings, structures and uses.

(a) Accessory buildings, structures and uses customarily incidental to any use permitted by this section shall be allowed.

(2.5) Prohibited uses. The following are specifically prohibited uses. Merely because a use is not specifically listed does not mean that the use is not prohibited.

(a) All uses which are not permitted uses.

(b) Vacation rental.

* * *

SECTION 6. That Section 17-123 of the Town Code of the Town of Indialantic, Florida, is hereby amended to read as follows:

Sec. 17‑123. "R‑2" Duplex Residence Districts.

Within "R‑2" Duplex Residence Districts the following regulations shall apply:

(1) Permitted uses. The following uses only shall be permitted:

(a) Single‑family dwellings.

(b) Parish houses.

(d) Public utilities serving the neighborhood area, excluding towers, buildings or storage areas.

(e) Gardening activities customarily incidental to single‑family dwellings.

(f) Duplex family living units

(g) Satellite dish antenna in the manner specified in section 17-111.

(h) Community residential home (level I or II facilities) subject to satisfying the standards set forth in section 17-115, town code.

(2) Accessory buildings, structures and uses.

(a) Accessory buildings, structures and uses customarily incidental to any use permitted by this section shall be allowed.

(2.5) Prohibited uses. The following are specifically prohibited uses. Merely because a use is not specifically listed does not mean that the use is not prohibited.

(a) All uses which are not permitted uses.

(b) Vacation rentals.

* * *

SECTION 7. That Section 17-124 of the Town Code of the Town of Indialantic, Florida, is hereby amended to read as follows:

Sec. 17‑124. "R‑3" Multi‑Family Residence Districts.

Within "R‑3" Multi‑Family Residence Districts the following regulations shall apply:

(1) Permitted uses. The following uses only shall be permitted:

(a) Single‑family dwellings.

(b) Parish houses.

(d) Public utilities serving the neighborhood area, excluding towers, buildings or storage areas.

(e) Gardening activities customarily incidental to single‑family dwellings.

(f) Duplex family living units

(g) Multiple-family living units

(h) Satellite dish antenna in the manner specified in section 17-111.

(i) Community residential home (level I or level II facilities) subject to satisfying the standards set forth in section 17-115, town code.

(2) Accessory buildings, structures and uses.

(a) Accessory buildings, structures and uses customarily incidental to any use permitted by this section shall be allowed.

(2.5) Prohibited uses. The following are specifically prohibited uses. Merely because a use is not specifically listed does not mean that the use is not prohibited.

(a) All uses which are not permitted uses.

(b) Vacation rentals.

* * *

SECTION 8. That Section 17-125 of the Town Code of the Town of Indialantic, Florida, is hereby amended to read as follows:

Sec. 17‑125. "R‑P" Residential‑Professional Districts.

Within "R‑P" Residential‑Professional Districts, the following regulations shall apply:

(1) Permitted uses. The following uses only shall be permitted:

(a) Single‑family dwellings.

(b) Parish houses.

(d) Public utilities serving the neighborhood area, excluding towers, buildings or storage areas.

(e) Gardening activities customarily incidental to single‑family dwellings.

(f) Duplex family living units

(g) Multiple-family living units

(h) Satellite dish antenna in the manner specified in section 17-111.

(i) The professional activities listed below, to the extent that they do not involve the manufacture, preparation, or sale of an article or commodity on or from within the premises except that uses accessory to the principal permitted uses shall be allowed:

(1)1) Accountants.

(2)2) Architects.

(3)3) Attorneys.

(4)4) Barber shops/beauty salons

(5)5) Chiropractors.

(6)6) Dental labs

(7)7) Dentists.

(8)8) Engineers.

(9)9) Existing church building.

(10)~~10)~~ Insurance brokers.

(11)~~11)~~ Optometrists.

(12)~~12)~~ Osteopaths.

(13)~~13)~~ Physicians.

(14)~~14)~~ Real estate brokers.

(15)~~15)~~ Consultants to the above.

(16)~~16)~~ Professional activities similar and conforming to the standards governing the above and not more detrimental, objectionable, or annoying to the community.

(j) Community residential home (level I or level II facilities) subject to satisfying the standards set forth in section 17-115, town code.

(2) Standards governing permitted uses. The following standards shall govern uses:

(a) a) No odor, dust, fumes, gas, smoke or other atmospheric pollutants shall be disseminated beyond the boundaries of the immediate site of the building in which the use is conducted.

(b) b) Noise level from operations shall be negligible. No noise or vibration resulting from or in connection with the use shall be perceptible from any part of any residence district.

(c) c) There shall be no glare resulting from or in connection with the use that is observable from outside the boundaries of the Residential-Professional “RP” District.

(d) d) The vehicular traffic resulting from or in connection with the use shall not add materially to the traffic on streets that primarily serve residence districts.

(e) e) The use shall not be otherwise detrimental, objectionable, or annoying to the owners or occupants of nearby property.

(2.5) Prohibited uses. The following are specifically prohibited uses. Merely because a use is not specifically listed does not mean that the use is not prohibited.

(a) All uses which are not permitted uses.

(b) Vacation rentals.

* * *

(13) Buffer wall.

(a) Where the property abuts property in the R‑l‑A District, R‑l‑B District, R‑2 District, or R‑3 District, a solid wall, six (6) feet high and at least six (6) inches thick, constructed of brick, block, mortar, or similar building materials, and sufficient to obstruct the view of such abutting residential property, shall be provided.

(b) The buffer wall shall parallel the length of the common boundary between the subject property located within the R-P District and the R-1-A District, R-1-B District, R-2 District, or R-3 District. The buffer wall shall be placed at the common property line of the R-P District and the R-1-A District, R-1-B District, R-2 District, or R-3 District. A wooden fence is strictly prohibited.

(c) The buffer wall shall be installed when there is a substantial improvement to the R-P zoned property. As used in this paragraph the term "substantial improvement" means:

(1) A change in the use of a major and material nature. For example, a change from a residential use to a professional office use would constitute a major and material change;,

(2) Clearing of an entirely undeveloped property and making use of the property. For example - use of the property as a parking lot;,

(3) Demolition of an existing principal structure and construction of a new principal structure for use as a professional office;,

(4) An expansion of the floor area of an existing professional office structure by ten percent (10%) or more;: or

(5) Construction of a professional office structure on undeveloped property.

~~Editor's note~~--Ord. No. 81‑298, 4, adopted Aug. 18, 1981, added subsection (11) to this section; inasmuch as a subsection so designated is already included herein, the editor redesignated the newly enacted provision as subsection (11.5) hereof. Ord. No. 92-13, 6, redesignated this subsection as (12) and renumbered the following subsections hereof.

(14) Ground covering. In addition to meeting the following requirements, a landscape plan shall be submitted to the town along with architectural plans.

* * *

SECTION 9. That Section 17-126 of the Town Code of the Town of Indialantic, Florida, is hereby amended to read as follows:

Sec. 17‑126. "C" and "C‑1" Commercial Districts.

Within "C" and "C‑1" Commercial Districts, the following regulations shall apply:

* * *

(2) Standards governing permitted uses. The following standards shall govern new uses and changes of existing uses:

(a) No odor, dust, fumes, gas, smoke or other atmospheric pollutants shall be disseminated beyond the boundaries of the immediate site of the building in which the use is conducted.

(b) Noise level from operations shall be negligible. No noise or vibration resulting from or in connection with the use shall be perceptible from any part of any residence district.

(c) There shall be no glare resulting from or in connection with the use that is observable from outside the boundaries of the "C" Commercial District.

(d) The vehicular traffic resulting from or in connection with the use shall not add materially to the traffic on streets that primarily serve residence districts.

(e) Every use customarily conducted within a building, except for sidewalk sales as authorized by Section 13-3, Town Code, shall be conducted in a building enclosed on all sides with permanent walls, it being the intention of this provision to prohibit open front buildings for any use except as an accessory garden structure.

(f) The use shall not be otherwise detrimental, objectionable, or annoying to the owners or occupants of nearby property.

(g) Buffer wall. Where the property abuts property in the R‑1‑A District, R‑1‑B District, R‑2 District, R‑3 or R‑P Districts, a solid wall, six (6) feet high and at least six (6) inches thick, constructed of brick, mortar or similar building materials and sufficient to obstruct the view of such abutting residential property, shall be provided. The buffer wall shall be placed at the common property line of the C and C-1 District and the R-1-A District, R-1-B District, R-2 District, R-3 District or R-P District and shall parallel the length of the common boundary. A wooden fence is strictly prohibited.

(h) A drive‑through restaurant may only be operated if there is a minimum distance of two thousand (2,000) feet measured along the applicable street or streets center line from the nearest points of the lot boundaries between an existing drive‑through restaurant and the proposed drive‑through restaurant.

(i) Service stations/convenience stores with gas pumps. Service stations or convenience stores with gas pumps shall be governed by the following provision:

(1) There shall be a minimum distance of seven-hundred fifty (750) feet between service stations or convenience stores with gas pumps as measured from the nearest property boundary.

(2) Minimum lot size: 40,000 square feet.

(3) Minimum floor area: 300 square feet.

(4) Setbacks for tanks: 50 feet from any lot line, 100 feet from residential zoning districts, and 100 feet from mean or ordinary high water line of the Indian River Lagoon.

(5) Tank storage must be underground.

(6) Outdoor loudspeakers are prohibited.

~~Editor's note~~--Ord. No. 85‑20, 1, adopted Aug. 20,1985, amended the Code by adding a new subsection 17‑126(2)(g). Inasmuch as the Code already contained a subsection 17‑126(2)(g), the provisions of said Ord. No. 85‑20 were codified as a new subsection 17‑126(2)(h), at the editor's discretion.

(3) Prohibited uses. The following uses are prohibited. Merely because a use is not specifically listed does not mean that the use is not prohibited. :

(a) Abattoirs and slaughterhouses.

(b) Automobile seat covers.

(d) Automotive parts and service.

(e) Automotive repair shops.

(f) Awnings, screened enclosures and cabanas.

(g) Billiard parlors, poolrooms and similar places of amusement.

(h) Boat sales, repairs and service.

(i) Bowling alleys.

(j) Bus terminals.

(k) Car wash.

(l) Cemeteries.

(m) Ceramic tile, sales and service.

(n) Commercial garages.

(o) Commercial swimming pools.

(p) Dance halls.

(q) Drive‑ins, diners, barbecue stands, open‑air restaurants and similar establishments.

(r) Dwellings.

(s) Farm supplies, feed and fertilizer.

(t) Feed distributors.

(u) Reserved.

(v) Fortunetellers, clairvoyants and similar activities.

(w) Heating equipment, installation and maintenance.

(x) Hospitals.

(y) Landscaping.

(z) Loans (short term).

(aa) Lumber companies.

(bb) Marine repairs.

(cc) Mobile homes, sales and service.

(dd) Motorcycles, sales and service.

(ee) Nurseries (landscaping).

(ff) Outboard motor service.

(gg) Outdoor amusement devices.

(hh) Outdoor business activities.

(ii) Pawnbrokers.

(jj) Pest control.

(kk) Print shops.

(ll) Septic tank supplies and service.

(mm) Sheet metal.

(nn) Reserved.

(oo) Steam laundries.

(pp) Storage or disposal of junk, rags, or other waste material.

(qq) Storage warehouses.

(rr) Tire recapping.

(ss) Tourist camps.

(tt) Undertaking establishments.

(uu) Used car lots.

(vv) Well drilling and equipment.

(ww) Yards for contractors or other construction materials or equipment.

(xx) Other uses which are as detrimental, objectionable or annoying to the welfare of the community as the uses described in this subsection.

(yy) Any enterprise which is deemed deleterious or harmful to the public health, safety, welfare or morals of this primarily residential town and its adult citizens and children, and which is not in accordance with prevailing contemporary community standards, taking into account federal and state statutes, Constitutional decisions, as well as the respective Constitutions themselves; including but not limited to, by way of example only, "adult" book stores, "massage" parlors and "nudie" shows.

(zz) All uses which are not permitted uses.

(aaa) Vacation rentals.

(bbb) Bed and breakfast facilities.

* * *

SECTION 10. That Section 17-127 of the Town Code of the Town of Indialantic, Florida, is hereby amended to read as follows:

Sec. 17‑127. "T" Tourist Districts.

Within "T" Tourist Districts, the following regulations shall apply:

(1) Permitted uses. The following uses only shall be permitted, subject to prior review and approval of plans by the zoning board:

(a) Uses permitted in "R‑P" Residential‑Professional Districts.

(b) Any multiple‑living unit, hotels, motels. Hotels or motels must contain not less than ten (10) rental units.

(c) Hotels and motels of not less than ten (10) rental units are permitted to have related service activities such as restaurants or shops, provided such uses are situated on and are part of the hotel or motel building and that the sale of alcoholic beverages shall conform to the provisions of this Code. Total floor area devoted to shops operated within a hotel or motel building shall be no greater than one thousand (1,000) square feet. There shall be no more than three (3) such establishments per hotel or motel.

(d) Clubs.

(e) Lodges.

(f) Bed and breakfast facilities.

(g) Vacation rentals.

(2) Accessory buildings and uses.

(a) Accessory buildings and uses customarily incidental to any use permitted by this section shall be allowed.

(b) Where a parcel of land is developed with more than one building, buildings will be spaced by at least twenty (20) feet between outside walls.

(c) All accessory buildings shall be located in the rear yard and set back not less than four (4) feet from all lot lines.

(d) Satellite dish antenna in the manner specified in section 17-111.

(2.5) Prohibited uses. The following are specifically prohibited uses. Merely because a use is not specifically listed does not mean that the use is not prohibited.

(a) All uses which are not permitted uses.

* * *

(8) Living area. The minimum living area of any dwelling shall be:

(a) Motels--300 square feet per unit.

(b) Apartments (construction commenced or building permit issued prior to October 1, 2007)--500 square feet per unit.

(d) Bed and breakfast facilities -- 200 square feet per dwelling room or suite, which may include a bathroom, with at least one common area for the use of guests from all dwelling rooms or suites only.

(9) Parking spaces.

(a) There shall be provided offstreet parking for each living or rental unit as designated in each of the following categories:

(1) Hotels, motels--One space per unit.

(2) Duplexes and apartment houses with rental units--One and one‑half (1 l/2) spaces per unit.

(3) Separately and/or privately owned apartments, triplexes, condominiums, vacation rentals, or co‑op apartments--Two (2) spaces per unit.

(4) Restaurants and lounges will be required to meet an additional parking requirement of one parking space for every five (5) seats.

(5) Bed and breakfast facility -- one space per unit (dwelling room).

(b) All offstreet parking areas shall meet the requirements of section 17‑99(b).

* * *

SECTION 11. That Section 17-128 of the Town Code of the Town of Indialantic, Florida, is hereby amended to read as follows:

Sec. 17‑128. CH church districts.

(a) Intent. The provisions applicable to this district are intended to apply to an area which can serve the needs of the community for public and semi-public facilities of an educational, religious, recreational, or cultural nature. Within the "CH" Church District, the regulations in this section shall apply.

(b) Permitted uses. The following uses only shall be permitted within this district:

(1) House of worship or church.

(2) Parish house.

(3) Church-related uses, such as pre-school or nursery schools and child care facilities.

(4) Recreational uses, including only open spaces, parks, and playgrounds.

(c) Accessory buildings and uses. All accessory uses shall meet the requirements of section 17-91. The following accessory uses are permitted:

(1) Satellite dish antenna in the manner specified in section 17-111.

(2) Accessory ecclesiastical buildings.

(3) Meeting rooms.

(4) Parking areas.

(5) Any other accessory use of one or more of the principal uses clearly incidental to the principal permitted use and in keeping with the character of the zoning district.

(d) Prohibited uses. The following are specifically prohibited uses.

(a) Vacation rentals.

(b) Bed and breakfast facilities.

* * *

SECTION 12. In Section 17-130(3), relating to the SC Zoning District, the list of prohibited uses is specified as being the same as in the “C” zoning district. The “C” and “SC” zoning districts are substantially the same in many regards. It is the intent that the amendment to prohibited uses set forth in Section 17-126(3) prohibiting vacations rentals and uses which are not permitted uses in the “C” zoning district is also applicable to the “SC” district. Further, merely because a use is not specifically listed does not mean that the use is not prohibited. This provision shall not be codified.

SECTION 13. That Section 17-131 of the Town Code of the Town of Indialantic, Florida, is hereby amended to read as follows:

Sec. 17‑131. C‑2 commercial districts.

Within C‑2 commercial districts, the following regulations shall apply:

* * *

(3) Prohibited uses. The following are prohibited uses:

(a) Abattoirs and slaughterhouses.

(b) Air conditioning equipment sales and service.

(d) Automotive dealers.

(e) Automotive parts and service.

(f) Awnings, screened porches and enclosures.

(g) Banks.

(h) Barber shops.

(i) Beauty shops.

(j) Billiard parlors, poolrooms and similar places of amusement.

(k) Boat sales, repairs and service.

(1) Bowling alleys.

(m) Bridal service and gifts.

(n) Brokers.

(o) Bus terminals.

(p) Carpeting.

(q) Car wash.

(r) Cemeteries.

(s) Ceramic tile, sales and service.

(t) Churches.

(u) Cocktail lounges, package stores and other establishments selling alcoholic beverages, excluding those operated in conjunction with, and/or as part of, a restaurant.

(v) Commercial garages.

(w) Commercial swimming pools.

(x) Convenience stores.

(y) Dance halls.

(z) Drive‑in restaurants, barbecue stands, open‑air restaurants and similar establishments.

(aa) Dry cleaners.

(bb) Dwellings

(cc) Electrical appliances.

(dd) Electronics sales and service.

(ee) Farm supplies, feed and fertilizer.

(ff) Feed distributors.

(gg) Fishing bait (live).

(hh) Fortunetellers, clairvoyants and similar activities.

(ii) Furniture stores.

(jj) Glassware.

(kk) Hardware stores.

(ll) Hearing aids and service.

(mm) Heating equipment.

(nn) Hospitals.

(oo) Hotels, motels and lodges.

(pp) Landscaping.

(qq) Laundries and laundromats.

(rr) Loan offices.

(ss) Lumber companies.

(tt) Massage equipment.

(uu) Marine repairs.

(vv) Mobile homes, sales and service.

(ww) Motorcycles, sales and service.

(xx) Nurseries (landscaping).

(yy) Outboard motor service.

(zz) Outdoor amusement devices.

(aaa) Outdoor business activities.

(bbb) Pawnbrokers.

(ccc) Pest control.

(ddd) Plastics manufacturing and/or distribution.

(eee) Print shops.

(fff) Septic tank supplies and service.

(ggg) Service stations.

(hhh) Shopping centers.

(iii) Steam laundries.

(jjj) Stereo centers.

(kkk) Storage or disposal of junk, rags, or other waste material.

(lll) Storage warehouses.

(mmm) Swimming pools.

(nnn) Television sales and services.

(ooo) Ten cent stores.

(ppp) Tire recapping.

(qqq) Tourist camps.

(rrr) Undertaking establishments.

(sss) Used car lots.

(ttt) Well drilling and equipment.

(uuu) Yards for contractors or other construction materials and equipment.

(vvv) Other uses which are as detrimental, objectionable or annoying to the welfare of the community as the uses described in this subsection.

(www) Any use which is deemed deleterious or harmful to the public health, safety, welfare or morals of this primarily residential town and its adult citizens and children, and which is not in accordance with prevailing contemporary community standards, taking into account federal and state statutes, constitutional decisions, as well as the respective constitutions themselves; including but not limited to, by way of example only, "adult" book stores, "massage" parlors and "nudie" shows.

(yyy) Vacation rentals.

(zzz) Bed and breakfast facilities.

(zzz) All uses which are not permitted uses.

* * *

(12) Landscaping. ~~[Landscaping]~~ Landscaping shall be five (5) percent of the total lot area. Attention must be given to provide attractive landscaping in any setback area visible from public right‑of‑way.

(13) Site Plan. ~~[Site plan.]~~ A site plan must be submitted to and approved by the zoning and planning board in accordance with section 17‑129 of the Code of Ordinances.

* * *

SECTION 14. Severability/Interpretation Clause.

(a) In the event that any term, provision, clause, sentence or section of this Ordinance shall be held by a court of competent jurisdiction to be partially or wholly unenforceable or invalid for any reason whatsoever, any such invalidity, illegality, or unenforceability shall not affect any of the other or remaining terms, provisions, clauses, sentences, or sections of this Ordinance, and this Ordinance shall be read and/or applied as if the invalid, illegal, or unenforceable term, provision, clause, sentence, or section did not exist.

(b) In interpreting the provisions of this Ordinance, the following rules and symbols shall apply:

(1) Words underlined are additions to existing text.

(2) Words ~~stricken through~~ are deletions from existing text.

(3) Asterisks (* * *) indicates a deletion from the Ordinance of text existing in the Code of Ordinances. It is intended that the text in the Code of Ordinance denoted by the asterisks and not set forth in this Ordinance shall remain unchanged from the language existing prior to adoption of this Ordinance.

SECTION 15. Ordinances and Resolutions in Conflict. All ordinances or resolutions or parts thereof that may be determined to be in conflict herewith, except portions of the Comprehensive Plan, are hereby repealed.

SECTION 16. Effective Date. This Ordinance shall become effective upon adoption.

PASSED by the Town Council of the Town of Indialantic on first reading on the ____ day of ______________, 2007, and ADOPTED by the Town Council of the Town of Indialantic, Florida, on final reading on the _____ day of _______________, 2007.

TOWN OF INDIALANTIC

By:_____________________________

Robert L. Cochran, Jr., Mayor

ATTEST:____________________

Laura Eaton, CMC

Town Clerk