Chapter 11 PLANNING AND DEVELOPMENT

Art. I. Comprehensive Plan and Land Development Code,  11‑1–11- 9
Art. II. Local Planning Agency,  11‑10–11‑19
Art. III. Concurrency Management,  11‑20–11‑31

ARTICLE I.    COMPREHENSIVE PLAN AND LAND

DEVELOPMENT CODE

Secs. 11-1–11- 5. Reserved.

Editor’s note–Ord. No. 82‑301, 1, adopted Dec. 15, 1981, repealed  11‑1–11‑5 of the Code, pertaining to the Indialantic Comprehensive Planning Agency, its organization, duties, financing, etc.; which agency, having fulfilled its man­date, had become obsolete. The plan developed by the former agency remains in force, as set out by  11‑6 of this chapter. The repealed provisions were derived from Ord. No. 195, 2-6, adopted June 15, 1976.

11-5.5. Sale of public real property.

(a)   Prior to the sale or other disposition of any public real property or any interest therein, including right of ways and easements, the Town shall require an appraisal of the real property or interest therein by a qualified MAI appraiser.

(b)   Prior to the sale or other disposition of public real property or any interest therein, including right of ways and easements, the Town Council shall submit the terms and conditions of such sale or disposition to the voters of the Town for their approval at a public referendum to be held at the next General election or, if required by the Town Council, at a Special  election.

(c)   If the sale or disposition is approved by a majority of the voters at such election, the sale or other disposition shall be closed within ninety (90) days of the election.  If the sale or disposition is not approved by a majority of the voters, then such sale or disposition of public real property shall be prohibited unless subsequently approved by the voters of the Town. (Ord No. 89-26,11-7-89)

Editor’s note: Ord. No. 89-26, passed by a referendum vote at the General Election on 11-7-89, designated this section as Sec. 11-7. Inasmuch as a section so designated is already included herein, the editor has redesignated the newly enacted provision as section 11-5.5 hereof.

Sec. 11‑6. Comprehensive plan adopted.

(a) This section is enacted pursuant to and in accordance with the provisions of Chapter 163.3161 et seq., Florida Statutes (Community Planning Act).

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*Cross references–Beautification, Ch. 5.5; town color code,  5.5‑41 et seq.; property maintenance,  5.5‑61 et seq.; buildings and construction, Ch. 6; subdi­visions of land, Ch. 13.5; trees and shrubs, Ch. 16; zoning regulations, Ch. 17; zoning and planning board,  17‑30 et seq.; board of adjustment,  17‑46 et seq.; environmentally sensitive lands, Ch. 18.

(b) The Indialantic Comprehensive Plan consists of a one volume book entitled Town of Indial­antic Comprehensive Plan  adopted August, 1988, and as most recently amended. The foregoing is incorporated by this reference and is the official comprehensive plan for and of the town. (Ord. No. 292, 1, 2, 4‑21‑81; Ord. No. 88‑13, 1, 8‑23‑88; Ord. No. 90‑2, 1, 1‑16‑90; Ord. No. 97-11, 1, 9-9-97; Ord. No. 99-06, 1, 12-21-99; Ord. 10-05, 1, 3-16-10; Ord. 16-12, 1, 6-8-16)

Sec. 11‑7. Definitions.

As used in this chapter, the following terms shall be defined to mean:

Comprehensive plan means and refers to the plan designated in section 11‑6 and adopted pursuant to and consistent with the requirements of the Community Planning Act, as set forth in the Florida Statutes, and Chapter 9J‑5, Florida Administrative Code.

Development means and refers to activities described in Section 380.04, Florida Statutes.

Land development regulation means and refers to ordinances enacted by the town council for the regulation of any aspect of development and includes any local government zoning, rezoning, subdivision, building construction, or sign regulations, or any other regulation controlling the development of land. (Ord. No. 90‑9, 1, 3‑20‑90; Ord. No. 16-12, 2, 6-8-16)

Sec. 11‑8. Land development code designated.

The town’s land development code is hereby designated and adopted. The land development code shall consist of the following Code chapters and sections:

(1)        Chapter 6, relating to building, construction, coastal set­backs, flooding, flood damage, and impact fees;

(2)        Chapter 6.5, relating to floodplain management.

(3)        Chapter 11, relating to planning and concurrency manage­ment;

(4)        Chapter 13.5, relating to the subdivision of land;

(5)        Chapter 16.5, relating to water management;

(6)       Chapter 17, relating to zoning, signage, onsite traffic flow and vehicular parking; and

(7)      Chapter 18, relating to environmentally sensitive lands and wetland regulation.

(Ord. No. 91‑4, 1, 11‑7‑90; Ord. No. 16-12, 3, 6-8-16)

Sec. 11-9.  Procedures for quasi-judicial hearings; Ex parte communications; Site visits; Receipt of expert opinion; and Review of mail and other correspondence.

(a)  Intent.  Pursuant to Section 286.0115(1), Florida Statutes (1995), it is the intent of the town council that this section is intended to remove the presumption of prejudice from ex parte communications with town officials and to permit site visits, the receipt of expert opinion, and the review of mail and other correspondence relating to certain quasi-judicial proceedings by said town officials.  No permission pursuant to Section 286.0115, Florida Statutes, to engage in ex parte communications or to conduct site visits, receive expert opinion at other than an advertised public hearing, or to review mail and other correspondence is authorized by the town council pursuant to this section, except for the quasi-judicial matters set forth herein and only to the extent set forth below.

(b)     Definitions.  As used in this section, the following terms shall be defined as follows:

(1)            “Town official” means and refers to a member of the town council, the zoning and planning board, the local planning agency, or the board of adjustment.

(2)            “Ex parte communication” means a communication involving a town official and a member of the public, town staff, or a town consultant regarding a pending quasi-judicial permit application or appeal, such that the town official may be exposed to only one perspective or part of the evidence with regard to a quasi-judicial matter pending before the council or board on which the town official serves.  Ex parte communications occur at other than a public meeting of the board on which the town official serves at which the quasi-judicial matter discussed has been publicly noticed.

(3)           “Member of the public” refers to any person interested in a quasi-judicial permit application or appeal, including but not limited to a permit applicant, an appellant from a town administrator’s decision, an officer or member of a homeowner’s association, an officer or member of an environmental, homebuilding/development, or concerned citizen’s organization, an official or employee of a governmental entity other than the Town, a developer, a property owner, or an interested citizen, or a representative of or attorney for any of the foregoing.

(4)            “Quasi-judicial” refers to a land use, land development, zoning, or building related permit or appeal, as set forth below, in which town officials give notice and an opportunity to be heard to certain substantially affected persons, investigate facts, ascertain the existence of facts, hold hearings, weigh evidence, draw conclusions from the facts, and apply the law to the facts, as the basis for their decision.  The following are the only quasi-judicial matters subject to this section:

(A)  Repealed.

(B)  Site specific rezoning of land pursuant to chapter 17, Indialantic Town Code, which rezoning will have an impact on a limited number of persons or property owners, on identifiable parties and interests, where the decision is contingent on a fact or facts arrived at from distinct alternatives presented at a hearing, and where the decision can be functionally viewed as policy application rather than policy setting;

(C)  Applications for approval or amendment of a special permit pursuant to provisions such as section 17-51, Indialantic Town Code;

(D)  Applications for approval, amendment, or extension of time of an approval of a site plan considered by the town council or the zoning and planning board pursuant to chapter 17, Indialantic Town Code;

(E)  Applications for plat approval pursuant to chapter 13.5, Indialantic Town Code;

(F)  Variances considered by the board of adjustment:

1.           Pursuant to section 17-141 et seq., Indialantic Town Code (zoning code);

2.           Pursuant to section 6-30(c), Indialantic Town Code (Indialantic Coastal Construction Code of 1987);

3.  Pursuant to Chapter 6.5 – Floodplain Management, Indialantic Town Code; and

4.           Pursuant to section 105, Town of Indialantic Standard Housing Code, as adopted pursuant to section 6-200, Indialantic Town Code;

(G)  Appeals heard by the board of adjustment from a(n):

1.            Determination of the building official relating to stormwater and drainage systems in Chapters 6.5 and 16.5, Indialantic Town Code;

2.           Order of the building official relating to chapter 6, Indialantic Town Code, pursuant to section 6-6, Indialantic Town Code;

3.           Decision by the fire official or building official regarding plan review pursuant to section 6-31, Indialantic Town Code;

4.           Interpretation of the building official relating to matters set forth in chapter 6.5, Indialantic Town Code;

5.           Determination of the building official relating to Article III., Chapter 11, Indialantic Town Code, as made pursuant to section 11-29, Indialantic Town Code;

6.            Determination of the housing official relating to the adopted Standard Housing Code pursuant to section 105 of said code, as adopted pursuant to section 6-200, Indialantic Town Code; and

7.            Determination of the housing official relating to the adopted Standard Code for the Elimination or Repair of Unsafe Buildings pursuant to chapter 4 of said code, as adopted pursuant to section 6-220, Indialantic Town Code;

(H)  Appeals from planning, zoning, building or other staff officials whose decisions are subject to appeal in accordance with adopted regulations; and

(5)            “Site visit” means an inspection of real property subject to an application for any quasi-judicial permit or appeal prior to a public hearing on the permit application or appeal conducted by a town official.  The mere act of driving by a site in the daily course of driving to a particular location, such as work or a particular store, which act is not undertaken for the purpose of inspecting a particular parcel of real property is not a site visit for purposes of this section.

(c)   Ex parte communications between town officials and members of the public.

(1)  A member of the public not otherwise prohibited by statute, charter provision or ordinance may have an ex parte communication with any town official regarding any quasi-judicial matter on which action may be taken by the council or board on which the town official serves; provided, that the town official adheres to the disclosure requirements set forth in sub-section (c)(3) below.

(2)  Except as otherwise provided by statute, charter provision, or ordinance, any town official may have an ex parte communication with any expert witness or consultant regarding any quasi-judicial matter on which action may be taken by the council or board on which the town official serves; provided, that the town official adheres to the disclosure requirements set forth in sub-section (c)(3) below.

(3)    Disclosure.

(A)  The town official shall disclose the occurrence of all ex parte communications or discussions with an expert witness or consultant involving said town official which relate to the quasi-judicial action pending before the council or board on which the town official serves.

(B)  Disclosure of the ex parte communication. Disclosure shall occur by no later than the commencement of the final public hearing, or if no formal public hearing is held, then at the commencement of any hearing at which the final decision regarding the quasi-judicial matter is made.  The town official shall disclose the ex parte communication verbally or by memorandum.  Any such memorandum disclosing the occurrence of the ex parte communication shall be placed in the official file regarding the pending quasi-judicial matter which file shall be maintained in the Town Clerk’s records.  By no later than the commencement of the final hearing leading to a final decision on the pending quasi-judicial matter by the town official’s council or board, the memorandum shall be made a part of the record.

(C)            At the time of disclosure, the town official shall identify the person, group, or entity with whom the ex parte communication took place, the substance of the ex parte communication, and any matters discussed which are considered by the town official to be material to said town official’s decision in the pending quasi-judicial matter.

(d)  Oral or written communications between town staff and town officials.  Town officials may discuss quasi-judicial matters pending before the council or board on which said town official serves with town staff; provided that the town official makes a disclosure pursuant to sub-section (c)(3).

(e)            Site visits by town officials.  Any town official may conduct a site visit of any property related to a quasi-judicial matter pending before the council or board on which the town official serves; provided, that the town official adheres to the disclosure requirements set forth in sub-section (c)(3) above.  Any disclosure of a site visit pursuant to sub-section (c)(3) shall disclose the existence of the site visit, and any information obtained by virtue of the site visit considered by the town official to be material to said official’s decision regarding the pending quasi-judicial matter.

(f)  Review of mail, correspondence, and written communications by town officials.  Any town official may review mail, correspondence, or written communications, related to a quasi-judicial matter pending before the council or board on which the town official serves.  Immediately upon review of the mail, correspondence, or written communication, the document shall be placed in the official file regarding the pending quasi-judicial matter and maintained in the town clerk’s records.

(g)  Town clerk’s file.  All correspondence, mail, or written communications reviewed by town officials prior to the final hearing on a pending quasi-judicial matter shall be placed in the official file regarding said matter and maintained by the town clerk.  Said correspondence, mail, or written communications reviewed by town officials prior to the final hearing on a pending quasi-judicial matter, or any disclosure memoranda as described in sub-section (c)(3)(B) above, shall be available for public inspection.  By no later than the commencement of the final public hearing, or if no formal public hearing is held, then at the commencement of any hearing at which the final decision regarding the quasi-judicial matter is made, the town clerk shall make said correspondence, mail, written communications, or other matters, and any disclosure memoranda placed in the official file, a part of the record.  All of the foregoing documents shall be received by the council or board as evidence, with the exception of disclosure memoranda, subject to any objections interposed by participants at the hearing.

(h)           Opportunity to comment upon substance of disclosure.  At such time that a disclosure regarding an ex parte communication, receipt of an expert opinion, site visit, or review of mail, correspondence, or other written communication is made a part of the record at a hearing, persons who may have opinions or evidence contrary to those expressed in the ex parte communication, expert opinion, or mail, correspondence, or other written communication, or noted during the site visit, shall be given a reasonable opportunity to refute or respond and provide contrasting information, evidence, or views.

(Ord. 95-14, 1, 11-14-95; Ord. 02-01, 1, 11-14-01; Ord. 03-04, 2, 3-18-03, Ord. 13-10, 1, 5-21-13; Ord. 16-12, 4, 6-8-16)

ARTICLE II. LOCAL PLANNING AGENCY

Sec. 11‑10. Created.

(a)     The zoning and planning board is hereby designated as the local planning agency pursuant to the Community Planning Act, as set forth in the Florida Statutes.

(b)     The local planning agency shall have the general responsi­bility for the conduct of the comprehensive planning program of the town. The local planning agency shall:

(1)        Be the agency responsible for the preparation of the com­prehensive plan and shall make recommendations to the town council regarding the adoption of such plan, element, portion thereof, or amendment to said plan.

(2)        Monitor and oversee the effectiveness and status of the comprehensive plan and recommend to the town council such changes in the comprehensive plan as may from time to time be required or appropriate, pursuant to Section 163.3191, Florida Statutes.

(3)        Review proposed land development regulations, or amend­ments thereto, and make recommendations to the town council as to the consistency of the proposal with the adopted comprehensive plan, or portion thereof. If the local plan­ning agency does not make a recommendation within sixty (60) days of the date on which a proposed land development regulation, or amendment thereto, is referred to it for re­view, the town council may, but is not obligated to, con­sider adoption of the land development regulation without first receiving the report of the local planning agency.

(4)        Perform any other functions, duties, and responsibilities assigned to it by the town council or by state law. (Ord. No. 90‑9,  2, 3‑20‑90; Ord. No. 16-12, 5, 6-8-16)

Secs. 11‑11–11‑19. Reserved.

ARTICLE III. CONCURRENCY MANAGEMENT*

Sec. 11‑20. Short title.

This article shall be known as and may be cited as the “Indi­alantic Concurrency Management Ordinance.” (Ord. No. 91‑1, 1, 11‑7‑90)

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*Editor’s note–Section 1 of Ord. No. 91‑1, adopted Nov. 7, 1990, added 11‑20–11‑31 to be designated as Art. II. Inasmuch as such Art. II already existed,  11‑20–11‑31 have been designated as Art. III herein.

Sec. 11‑21. Purpose and intent.

(a) The concurrency management system shall implement es­tablished minimum acceptable level of service standards for trans­portation, sanitary sewer, solid waste, potable water, drainage, and recreation and open space needs, said levels of service having been adopted in the comprehensive plan adopted in section 11‑6. This system is designed to utilize the most current and available data regarding the above public facilities to measure the net im­pact of any development permit proposal upon the facilities for which level of service standards have been adopted. No final de­velopment order shall be issued unless this concurrency evalua­tion process has determined that adequate public facilities meeting all adopted level of service standards, will be available at the time of development impact.

(b) It is not the intent of the town that the concurrency man­agement system replace any other development review criteria utilized by the town, unless such review criteria are inconsistent with the provisions of this article. Compliance with the provisions of this article does not guarantee approval of a development pro­posal, unless all other development review criteria have been met. (Ord. No. 91‑1,  2, 11‑7‑90)

Sec. 11‑22. Applicability.

Unless otherwise provided herein, this article shall apply to all development orders. This article shall apply to new development orders and to amendments to existing development orders. The application of the provisions of this article shall assess only the net impacts from development of a parcel of land. (Ord. No. 91‑1,  3, 11‑7‑90)

Sec. 11‑23. Exemptions.

The following types of development are exempt from the re­quirements of this article:

(1)        Remodeling or repair, provided that no increase in square footage is made.

(2)        Accessory structures for existing single‑family homes that will not increase the number of inhabitants of the struc­ture.

(3)  Other developments which do not result in any increase in demand upon established levels of service for public facil­ities identified in this article, as determined by the building official.

(4)  Vested projects. (Ord No. 91‑1,  4, 11‑7‑90)

Sec. 11‑24. Definitions.

For purposes of this article, certain terms or words herein shall be interpreted as follows:

Accepted engineering principles means and refers to the engi­neering concepts generally accepted by the broad base of profes­sionals in the particular engineering discipline for which a con­currency evaluation is being conducted.

Available public facilities or available means and refers to a public facility or service which will be provided as follows:

(1)  The facility is in place to serve a proposed project at the time a final development order is approved;

(2)  The facility is under construction at the time a final devel­opment order is approved;

(3)  The facility is subject to a binding executed construction contract at the time a final development order is approved;

(4)  The facility is subject to an enforceable development agree­ment. An enforceable development agreement may include, but is not limited to, agreements pursuant to Section 163.3220, Florida Statutes; or

(5)  The facility is included in the first three (3) years of the Florida Department of Transportation five‑year work pro­gram.

Average daily traffic means and refers to the average number of vehicles crossing a specific point on a roadway on an average weekday. The most recent official traffic counts from the Florida Department of Transportation, Brevard County, and/or the Town of Indialantic shall be accepted as representing average daily traffic for a specified roadway segment. Average daily traffic counts provided by any other source must be prepared by utilizing ac­cepted engineering principles.

Captured trips means and refers to motor vehicle trips which enter or exit a development site, are not generated by that devel­opment, but, rather, are temporarily diverted from the average daily traffic of the adjacent roadway.

Developer’s agreement means and refers to an agreement en­tered into pursuant to Chapter 163.3220, Florida Statutes, and this article.

Development means the carrying out of any building activity or mining operation, the making of any material change in the use or size of any structure or land, or the dividing of land into three (3) or more parcels, and as further defined in Section 380.04, Florida Statutes.

Development order means and refers to any order granting or granting with conditions an application for a development permit.

Development permit means and refers to any building permit, zoning permit, subdivision approval, rezoning, certification, vari­ance, or any other official action of local government having the effect of permitting the development of land.

Direct access means and refers to that driveway entrance or exit to a particular roadway from a project.

Final development order means a building permit, a site plan approval, or in the case of a subdivision, an approval to construct all required improvements and public facilities.

Land development regulations means and refers to ordinances enacted by the town for the regulation of development and in­cludes, but is not limited to, zoning, rezoning, subdivision, building construction, landscaping, sign regulation, tree protection, or any other regulation pertaining to the development of land.

Level of service or LOS means and refers to any measure of the extent or degree of service provided by, or proposed to be provided by, a facility based on and related to the operational character­istics of that facility.

Net impact means the total impact a development has upon the level of service for a particular public facility minus the existing impacts of earlier phases or previous development on the same property.

Public facilities means and refers to public transportation, road­ways, drainage/stormwater management, potable water, solid waste disposal, wastewater treatment, parks, recreations, and open space facilities.

Rendition means and refers to the issuance of a letter of deter­mination by the building official or town council, the date of ex­ecution of which shall be presumed to have been made on the date set forth in said letter determination. The letter shall be filed with the town clerk on the same date.

Vested project means a project which received a final develop­ment permit prior to November 7, 1990, the effective date of this article, or for which the town has determined a vested right exists. (Ord. No. 91‑1,  5, 11‑7‑90)

Sec. 11‑25. Adopted level of service standards.

The minimum acceptable level of service standards for sanitary sewer, transportation, solid waste, potable water, drainage, and recreation shall be as follows:

(1)        Transportation:

S.R. AlA                        LOS E

U.S. 192                        LOS D

Riverside Drive (north of U.S. 192).                     LOS E

Local collector streets .                  LOS C

Local streets                   LOS C

(2)   Sanitary sewer:

200 gallons per residential unit per day.

200 gallons per equivalent residential unit per day.

(3)   Solid waste:

8.32 pounds per person per day.

(4)   Potable water:

<110 gallons per person per day (residential and non-residential)

(5)   Drainage:

Retention of the 1st one (1) inch of rainfall onsite and de­signed for the 25‑year, 24‑hour event.

(6)       Recreation:

4 acres of park/open space for each 1,000 residents. (Ord. No. 91‑1, 6,11‑7‑90)

(7)  Schools:

100% of the Florida Inventory of School Houses (FISH) Capacity for each elementary, middle, and high school, and any combination school.

(Ord. 10-05, 2, 3-16-10; Ord. No. 16-12, 6, 6-8-16)

Sec. 11‑26. Evaluation criteria.

(a) Generally. The town shall utilize the following criteria and procedures to determine whether the levels of service for public facilities are adequate to support the specified impacts of a pro­posed project. This system is designed to utilize the most recent and available data regarding transportation, sanitary sewer, solid waste, potable water, drainage, and recreation. At a minimum, public facilities must be available to meet all adopted level of service standards prior to the issuance of a final development order.

(b) Transportation facilities.

(1)      The capacity for transportation facilities shall be evalu­ated by using the Florida Highway System Plan Level of Service Standards and Guidelines Manual of the Florida Department of Transportation, January 1, 1989, or as sub­sequently updated or amended.

(2)      Projected impacts on the transportation system shall be determined by utilizing the trip generation rates contained in the Trip Generation Manual, 4th edition, of the Institute of Transportation Engineers, or as subsequently updated or amended. The proposed project shall be evaluated for impacts on transportation facilities to which the proposed project has direct access.

(3)   The calculation of total traffic generated by any develop­ment will assume one hundred percent (100%) buildout and occupancy of the project. Credit against trip generation rates for certain nonresidential land uses may be taken utilizing the percentages shown below:

Use  Percentages

Bars and cocktail lounges 35

Convenience stores  42

Day care centers 11

Fast food restaurants  35

Financial institutions  46

Hardware stores  5

Offices 5

Restaurants 18

Service station/carwashes 58

Shopping centers 25

Supermarkets 25

Any capture of trips from passing traffic for uses not specified above must be justified by the applicant based on the procedures described in the Trip Generation Manual, 4th edition, Institute of Transportation Engineers.

(4)   Current operating level of service shall be based upon the most recent average daily traffic counts available plus pro­jected traffic counts from projects previously approved but not yet constructed.

(5)      Concurrency compliance for transportation facilities shall be determined to be nondeficient if any of the following occur:

a. For U.S. 192 and S.R. AlA: Issuance of a driveway permit for the proposed project by the Florida Depart­ment of Transportation.

b. Riverside drive (north of U.S. 192): Issuance of a driveway permit for the proposed project by Brevard County.

c. Local collector streets and local streets: Single‑family homes on lots within subdivisions approved and con­structed prior to November 20, 1990, the effective date of this article, are considered to be vested projects for purposes of transportation concurrency. Single‑family subdivisions approved after November 20, 1990, the effective date of this article, shall have impacts deter­mined at the final plat approval stage (preliminary plat stage, if all required improvements and facilities are to be constructed prior to final plat approval) for one hundred percent (100%) of the project, and single-family homes built within these subdivisions shall be considered vested projects for purposes of transporta­tion concurrency once the subdivision receives a non­deficiency finding and all required improvements and facilities are constructed. All other applications for projects shall submit, on forms prepared by the town, sufficient information to determine the projected level of service for local roadways that the project directly accesses. This information will be analyzed by the building official and the zoning and planning board, as appropriate, in order to issue a finding of either non­deficiency or a finding of deficiency.

(c)      Sanitary sewer facilities.

(1)   A finding of nondeficiency shall be made for sewer facili­ties provided the applicant submits a capacity reservation certificate from Brevard County noting that capacity exists and has been reserved for the development project.

(2)   A finding of deficiency shall be made for sanitary sewer facilities if the applicant fails to provide a capacity reser­vation certificate from Brevard County.

(d)   Solid waste facilities.

(1)   A finding of nondeficiency shall be made for solid waste facilities provided that the applicant submits a capacity reservation certificate from Brevard County noting that capacity exists and has been reserved for the development project.

(2)   A finding of deficiency shall be made for solid waste facil­ities, if the applicant fails to provide a capacity reservation certificate from Brevard County.

(e)      Potable water facilities.

(1)   A finding of nondeficiency shall be made for potable water facilities provided that the applicant submits a capacity reservation certificate from the City of Melbourne noting that capacity exists and has been reserved for the develop­ment project.

(2)   A finding of deficiency shall be made for potable water facilities, if the applicant fails to provide a capacity reser­vation certificate from the City of Melbourne.

(f)      Drainage.

(1)      Single‑family homes within a subdivision approved and con­structed prior to November 20, 1990, the effective date of this article, shall be considered vested projects for purposes of drainage concurrency.

(2)      Single‑family homes within a subdivision approved and con­structed after November 20, 1990, the effective date of this article, shall be deemed vested projects; provided, that the subdivision has received a nondeficiency finding as speci­fied in subsection (f)(3) or (f)(4) below.

(3)A finding of nondeficiency for drainage facilities shall be made; provided, that the applicant submits a permit spec­ifying approval of the development project’s stormwater system by the St. Johns River Water Management District.

(4)A finding of nondeficiency for drainage facilities shall be made provided the development project complies with Chapters 6.5 and 16.5 of this Code.

(5)A finding of deficiency for drainage facilities shall be made if the development project fails to meet the criteria specified above.

(g) Recreation facilities.

(1)Only residential projects shall be subject to the recreation level of service standards.

(2)In calculating the population of residential units, the most recent household size fixtures provided by the University of Florida Bureau of Economic and Business Research, shall be multiplied by the number of residential units in the development project.

(3)The existing population of the town plus the additional population projected from committed developments shall be added to the proposed project’s population projection to determine total projected population.

(4)The total population shall then be divided by two hundred fifty (250) [four (4) acres of recreation/open space per one thousand (1,000) persons] to determine total acreage needed.

(5)A finding of nondeficiency shall be made for recreation facilities if the total acreage needed (from subsection (g)(4) above) is less than the existing acreage available in the town.

(6)A finding of deficiency shall be made if the total acreage needed (from subsection (g)(4) above) is greater than the existing acreage available in the town. (Ord. No. 91‑1,  7, 11‑7‑90; Ord. No. 16-12, 7 , 6-8-16)

Sec. 11‑27. Concurrency evaluation finding.

(a) Generally. The town shall issue a concurrency evaluation finding during the final development permit process, and this finding shall certify either an overall nondeficiency finding or an overall deficiency finding. An overall nondeficiency finding shall be made provided a proposed project is determined to be nondefi­cient for all six (6) public facility types. An overall deficiency finding shall be made if the proposed project is deficient for any of the six (6) public facilities.

(b) Nondeficiency finding. Overall nondeficiency findings shall remain valid provided that a final development order has been issued within sixty (60) days of the finding. Once a building permit or site plan approval has been issued, the finding shall remain valid for the life of the permit or until the permit is revoked or suspended for failure to proceed in a timely manner as prescribed. Subdivision approvals shall be valid for one (1) year, unless the required improvements have been constructed. Once a nondefi­ciency finding lapses, a new concurrency evaluation must be made.

(c) Deficiency finding. Overall deficiency findings shall negate the issuance of a final development order or force deferral of this issuance until a nondeficiency finding is made. (Ord. No. 91‑1, 8, 11‑7‑90)

Sec. 11‑28. Applications for concurrency evaluation.

(a) Nonbinding concurrency evaluation applications. The owner, or applicant for the owner, or developer, of a proposed develop­ment may request a nonbinding concurrency evaluation prior to submitting an application for a final development order. The re­sults of this evaluation are not binding on the town. An applicant for a nonbinding concurrency evaluation must submit an appli­cation to the building official, along with such fee as may be established from time to time by resolution of the town council. This application shall contain all information required by the building official to make a nonbinding concurrency evaluation finding and at a minimum shall contain:

(1)Name, address, and telephone number of the owner of the property.

(2)Name, address, and telephone number of the applicant (if different from the owner).

(3)Legal description of the property and parcel size in acres.

(4)        Boundary survey (if required by the building official).

(5)Type of development permit or development order re­quested.

(6)        Specific use type with appropriate square footage (for non­residential uses) or number of units (for residential uses).

(7)Present zoning and land use designation.

(8)   Proposed project name, if known.

(b) Binding concurrency evaluation application. The owner, or applicant for the owner, or developer, of a proposed project must submit an application for a binding concurrency evaluation con­current with the application for final development permit ap­proval. This application must be filed with all building permit applications, site plan approval applications, and subdivision (pre­liminary and final) approval requests. The application must be filed with the building official, along with such fee as may be established from time to time by resolution of the town council. This application must contain all information required by the building official to make a binding concurrency evaluation finding and at minimum shall contain:

(1)       Name, address, and telephone number of the owner of the property.

(2)       Name, address, and telephone number of the applicant (if different from the owner).

(3)       Legal description of the property and parcel size in acres.

(4)       Boundary survey.

(5)       Type of development permit requested.

(6)       Specific use type with appropriate square footage (for non­residential uses) or number of units (for residential uses).

(7)       Present zoning and land use designation.

(8)       Proposed project name.

(9)       Stormwater management plan.

(10)     Traffic impact study, prepared utilizing accepted engi­neering principles, if required by the building official and/or the zoning and planning board.

(11)     Site location map. (Ord. No. 91‑1,  9, 11‑7‑90)

Sec. 11-29.  Administration

This article shall be administered by the building official.  The building official may develop such administrative rules, forms and/or applications as may be needed to implement the concurrency management system.  The building official shall be responsible for maintaining a cumulative record of the level of service allocation permitted under the concurrency management system. (Ord. No. 91-1, 10, 11-7-90)

Sec. 11‑30. Developer’s agreement.

(a) Generally. The town council may, in its sole discretion, enter into developer’s agreements with the legal and equitable owners of parcels of land, pursuant to Section 163.3220, Florida Statutes, in such cases where the threshold capacity of any public facility will be exceeded by a proposed development.

(b) Application requirements. The following requirements shall be contained in the application for a developer’s agreement:

(1)    Legal description of the land and the names of its legal and equitable owners.

(2)    The proposed duration of the agreement.

(3)    The proposed use of the property including population den­sities, building intensities, square footage, project phasing, and dates of construction completion.

(4)    A description of public facilities that will serve the devel­opment, including who shall provide such facilities, the date any new facilities, if needed, will be constructed, and a schedule to assure public facilities are available concur­rent with the impacts of development.

(5)    A description of the level of service allocations to be per­mitted by the developer’s agreement.

(6)    A finding that the proposed development is consistent with town comprehensive plan, adopted in section 11‑6 hereof, and any applicable land development regulations.

(7)    A description of any conditions, terms, restrictions, or other requirements deemed necessary by the town council.

(8)     Payment of any required application fee as established by the town council.

(9)    Any further information that the town may require be­cause of the type or location of the proposed development.

(c) Recording of developer’s agreement. The town shall record the agreement with the clerk of the circuit court within fourteen (14) days of its execution. The expense of recording the agreement shall be that of the owner/developer of the development project lands. (Ord. No. 91‑1, 11, 11‑7‑90)

Sec. 11‑31. Appeals.

Appeals from the decisions of the building official with respect to determinations made hereunder shall be taken to the town council. An appeal of the building official’s determination shall be made within no more than thirty (30) days of the rendition of the written determination of the building official. To initiate an appeal a notice of appeal stating the basis for the appeal with supporting argument shall be filed with the town clerk. Before the appeal is acted upon by the town council, the town clerk shall forward the notice of appeal to the board of adjustment and there­after to the zoning and planning board for an advisory recommen­dation to the town council. (Ord. No. 91‑1, 12, 11‑7‑90)