ORDINANCE NO. 2008-08

ORDINANCE NO. 2008-08 AN ORDINANCE OF THE TOWN OF MELBOURNE BEACH, BREVARD COUNTY, FLORIDA, RELATING TO LAND DEVELOPMENT; MAKING FINDINGS; AMENDING SECTIONS 7A-36, 7A-37, 7A-38, 7A-52, 7A- 152, AND 9A-7, LAND DEVELOPMENT CODE, APPENDIX A, TOWN CODE OF MELBOURNE BEACH, FLORIDA; ELIMINATING VOCATIONAL AND TRADE SCHOOLS AS A PERMITTED USE IN THE 6-B AND 7-C ZONING DISTRICTS AND AS A SPECIAL EXCEPTION IN THE 8-B ZONING DISTRICT; ELIMINATING COMMERCIAL RECREATION STRUCTURES SUCH AS BOWLING ALLEYS AND THEATRES, AND TESTING AND RESEARCH LABORATORIES AS SPECIAL EXCEPTION USES IN THE 6-B AND 7-C ZONING DISTRICTS; ELIMINATING RETAIL STORES AND SALES AND DISPLAY ROOMS, BUSINESS SCHOOLS, BANKS AND FINANCIAL INSTITUTIONS, PUBLIC AND PRIVATE PARKING LOTS AND PUBLIC RECREATION AREAS AS SPECIAL EXCEPTION USES IN THE 8-B ZONING DISTRICT; SPECIFYING THAT DRIVE-IN, DRIVE-THROUGH, AND DRIVE-UP USES ARE PROHIBITED USE IN THE 6-B, 7-C, AND 8-B ZONING DISTRICTS; CLARIFYING THAT THE TYPE OF RENTALS CURRENTLY PROHIBITED FOR PERIODS OF LESS THAN THIRTY DAYS ARE RESIDENTIAL RENTALS; RENAMING THE CHURCH SPECIAL EXCEPTION IN THE 6-B AND 7-C ZONING DISTRICTS AS A HOUSE OF WORSHIP SPECIAL EXCEPTION AND ADDING A STANDARD FOR APPROVAL; AMENDING SECTION 7A-52 BY PROVIDING LIMITATIONS ON ATTACHED SIGNS AND FREESTANDING SIGNS FOR SPECIAL EXCEPTIONS IN THE 6-B, 7-C, AND 8-B ZONING DISTRICTS; REMOVING REQUIREMENTS THAT NONCONFORMING SIGNS BE REMOVED IF A BUSINESS IS DISCONTINUED; ELIMINATING CERTAIN PAST-DATED SIGN REGULATIONS; AMENDING SECTION 9A-7 TO INCLUDE LANDSCAPE AND TREE STANDARDS FOR SPECIAL EXCEPTIONS; PROVIDING FOR SEVERABILITY AND INTERPRETATION; PROVIDING FOR THE REPEAL OF INCONSISTENT RESOLUTIONS AND ORDINANCES; AND PROVIDING FOR AN EFFECTIVE DATE. 1

WHEREAS, the Traffic Circulation Element Objective 1.0 in the Town of Melbourne Beach s Comprehensive Plan (the Comprehensive Plan ) states: Objective 1.0 Prohibit Development that will result in [the] deterioration of the level of service below that level indicated as acceptable. WHEREAS, the existing level of service ( LOS ) assigned by Policy 1.1 of the Comprehensive Plan Traffic Circulation Element on A-1-A on Oak Street North of Ocean Avenue is LOS D; WHEREAS, the existing LOS assigned by Policy 1.1 of the Comprehensive Plan Traffic Circulation Element on A-1-A on Ocean Avenue is LOS C; WHEREAS, the existing LOS assigned by Policy 1.1 of the Comprehensive Plan Traffic Circulation Element on A-1-A South of Ocean Avenue is LOS C; WHEREAS, the Florida Department of Transportation reports that due to deteriorating traffic conditions within the Town the LOS on A-1-A throughout the Town is now LOS D; WHEREAS, the deteriorating traffic conditions further exacerbate conditions that strain roadway infrastructure, detract from the low intensity/low density, small town beachside character of the Town; WHEREAS, Policy 1.1 will need to be amended to lower the permitted level of service if any development on Ocean Avenue is to occur; WHEREAS, future growth within the Town that has a high traffic generation capacity will cause further deterioration of the traffic level of service on Ocean Avenue in violation of Objective 1.0; WHEREAS, Objective 2.0 of the Comprehensive Plan Traffic Circulation Element requires that traffic circulation should be coordinated with future land use, meaning that in 2

order to assist in controlling a deteriorating traffic circulation LOS within the Town s business district, high traffic generation land uses should be strictly controlled and minimized or prohibited; WHEREAS, a primary goal of the Town is to preserve the low intensity/low density character of the Town with the goal of protecting the small town and walkable beach community atmosphere of the Town; WHEREAS, uses that promote high traffic generation and deteriorating traffic conditions operate counter to the foregoing; WHEREAS, the Planning and Zoning Board, sitting as both the Planning and Zoning Board and the Local Planning Agency (collectively, the LPA ), finds that Town should discourage uses that will be high traffic generators; WHEREAS, the LPA further finds that Town should discourage uses that, due to high trip generation, will tend to further degrade the transportation level of service within the Town; WHEREAS, the LPA finds that Town should discourage uses that, due to high trip generation, are more oriented to automobile use and less oriented toward making the Town a community oriented toward pedestrian shoppers and walkable in character; WHEREAS, to assist in implementing that concept, the LPA notes that uses with drivethrough and drive-in facilities are among the highest traffic generators; WHEREAS, the Trip Generation Manual, 7 th Edition, published by the Institute of Transportation Engineers ( Trip Generation Manual ) located in Washington, D.C., sets forth trip generation based on in depth traffic analysis; WHEREAS, the LPA finds that the most likely facilities to have a drive-through facility would include financial institutions (banks) and fast food restaurants; 3

WHEREAS, the Trip Generation Manual, Volume 3, states that trip generation for financial institutions with a drive-through facility is 411 trips/per day/lane, while the trip generation for a financial institution without a drive-through facility is only 32 trips/1,000 square feet; WHEREAS, the Trip Generation Manual, Volume 3, states that trip generation for fast food restaurants with a drive-through facility is 496 trips/per day/lane, while the trip generation for a fast food restaurant without a drive-through facility is only 52 trips/1,000 square feet; WHEREAS, the LPA has concluded, based on testimony provided by the Town Planner, that drive-through facilities are high traffic generators detracting from the character of a walkable, small beach town atmosphere; WHEREAS, the LPA finds that not every imaginable use must be permitted in every community, accord Schad v. Borough of Mount Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 2186 n.18 (1981) and 101 S.Ct. at 2191 (Stevens, J., concurring); WHEREAS, the LPA has recommended that drive-through and drive-in type facilities should be prohibited uses; WHEREAS, there are already some high traffic generation uses with drive-through facilities within the Town which the LPA finds should be reclassified as non-conforming uses; WHEREAS, the LPA has recommended adoption of this Ordinance as being in promotion of the public safety, aesthetics, and welfare as a means of protecting the walkable, small beach town atmosphere of Melbourne Beach and and finds that based on the foregoing Objectives and Policies in the Comprehensive Plan, among others, this Ordinance is consistent with the Town s Comprehensive Plan. 4

BE IT ENACTED BY THE TOWN OF MELBOURNE BEACH, FLORIDA: SECTION 1. That Section 7A-36, Appendix A, of the Town Code of the Town of Melbourne Beach, Florida, is hereby amended to read as follows: 7A-36. 6-B DOWNTOWN BUSINESS DISTRICT. (a) Intent. The provisions of this district are intended to apply on centrally located areas adjacent to major arterial streets and convenient to major residential areas. The types of uses permitted are intended to provide limited business activities serving the needs of residential neighborhoods. Uses should reflect an atmosphere of providing basic consumer needs of the residential community. (b) Principal uses and structures. The following uses and structures are permitted for any use or group of uses that are developed, either separately or as a unit with certain site improvements shared in common: (1) Retail stores, sales and display rooms, including places where goods are produced and sold at retail on the premises. (2) Personal service establishments such as barber and beauty shops, laundry, and dry-cleaning pickup stations, and tailor shops, and similar uses. (3) Professional offices, studios, medical offices, general offices, and business schools and similar uses. (4) Vocational and trade schools not involving operations of an industrial nature. (4) (5) Banks and financial institutions. (5) (6) Educational and cultural institutions. (6) (7) Public and private parking lots. 5

(7) (8) Governmental and municipal buildings and public recreation areas. (c) Accessory uses and structures: Customary accessory uses of one or more of the principal uses clearly incidental and subordinate to the principal use and in keeping with the low-density commercial character of the District. (d) Special exceptions: (1) Commercial recreation structures such as theaters, bowling alleys, and similar uses. (2) Testing and research laboratories. (1) (3) Eating and drinking establishments. (2) (4) House of worship Churches. a. A house of worship shall have a maximum of 150 seats in the main assembly area. The main assembly area shall include side rooms and areas that can convert into part of main assembly room. (3) (5) Bed and breakfast inns. To be permitted, a bed and breakfast inn must meet the provisions of 7A-152(c)(2) and (3), Appendix A, Town Code, and the following requirements: a. (a) If the facility proposed to be a bed and breakfast inn is an existing structure(s), the architectural features must be preserved. A rendering of the elevation must be submitted by the applicant and shall be attached to the special exception approval to assure future preservation of the architectural features; and b. (b) Provide a six-foot non-solid masonry wall or substantially similar type of fence, not less than 25% of its total area shall allow the free-flowing air passage while still serving as a visual barrier adjacent to any single-family residences existing or permitted by zoning that abut the bed and breakfast inn site. 6

(e) Prohibited uses: (1) Drive-in, drive-up, drive through, or any other similar feature that provides for receipt of goods, services, food, money or information by a consumer while seated in a motor vehicle. (2) All all other uses not specifically or provisionally permitted herein. (f) Lot and principal structures, sizes, and setbacks: (1) Minimum lot area, 9,000 square feet. (2) Minimum lot width, 60 feet (at front building line). (3) Minimum lot depth, 150 feet. (4) Maximum lot coverage, 50%. (5) Minimum floor area, 300 square feet. (6) Maximum height, 35 feet. (7) Minimum yard requirements: a. Front setback, 25 feet from lot line. b. Side interior lot setback, none; provided a public access is available to the rear of the lot for trash removal and fire protection. Otherwise, a minimum side setback of 15 feet on one side of the structure is required. c. Side corner lot setback, 20 feet from lot line. d. Rear setback, 20 feet from lot line, except 25 feet when abutting a residential area, and 15 feet when abutting an alley. e. Ocean setback. No building or structure shall be constructed on oceanfront property within the town boundaries seaward of the coastal setback line established 7

pursuant to Chapter 5A. In addition to the structures permitted in Chapter 5A, beach access shall be permitted by an elevated boardwalk supported on pilings with appropriate steps. (g) Landscaping regulations: Front and side yard setbacks (excluding parking areas and driveways) shall be landscaped with ground cover, trees, and shrubs; other decorative arrangements such as rock gardens, walkways, dwarf trees, cobble, brick and like arrangements may be acceptable. Uncovered parking areas shall be landscaped with trees and shrubs. Except for driveways, the areas abutting the street rights-of-way from the curb to the property line shall be landscaped. The rights-of-way from the curb to the property line shall be landscaped and maintained by the owner. However, in no case shall the area landscaped be less than 20% of the total lot area, not including rights-of-way. (h) Sidewalk and parking lots: Sidewalks and parking lots shall be constructed and maintained by the owner along the public streets or highways abutting any developments in this District. (i) Supplementary regulations: As provided in 7A-50 through 7A-69. SECTION 2. That Section 7A-37, Appendix A, of the Town Code of the Town of Melbourne Beach, Florida, is hereby amended to read as follows: 7A-37. 7-C GENERAL COMMERCIAL DISTRICT. (a) Intent. The provisions of this district are intended to apply on centrally-located areas adjacent to major arterial streets and convenient to major residential areas. The type of uses permitted are intended to provide business activities serving the needs of residential neighborhoods and the motorist. Uses should reflect an atmosphere of providing basic consumer needs of the residential community. 8

(b) Principal uses and structures. The following uses and structures are permitted for any use or group of uses that are developed, either separately or as a unit with certain site improvements shared in common: (1) Retail stores, sales and display rooms, including places where goods are produced and sold at retail on the premises. (2) Personal service establishments such as barber and beauty shops, laundry, and dry cleaning pickup stations, and tailor shops and similar uses. (3) Professional offices, studios, medical offices, general offices, and business schools and similar uses. (4) Vocational and trade schools not involving operations of an industrial nature. (4) (5) Banks and financial institutions. (5) (6) Educational and cultural institutions. (6) (7) Public and private parking lots. (7) (8) Governmental and municipal buildings and public recreation areas. (8) (9) Service stations. Stations shall be prohibited from storage or display of rental trucks and trailers, storing vehicles, and excessive lighting and noise. (c) Accessory uses and structures: Customary accessory uses of one or more of the principal uses clearly incidental and subordinate to the principal use and in keeping with the low-density commercial character of the District. (d) Special exceptions: (1) Commercial recreation structures such as theaters, bowling alleys and similar uses. (2) Testing and research laboratories. 9

(1) (3) Eating and drinking establishments (2) (4) House of worship Churches. a. A house of worship shall have a maximum of 150 seats in the main assembly area. The main assembly area shall include side rooms and areas that can convert into part of main assembly room. (e) Prohibited uses: (1) Drive-in, drive-up, drive through, or any other similar feature, excepting service stations, that provides for receipt of goods, services, food, money, or information by a consumer in a motor vehicle. (2) All all other uses not specifically or provisionally permitted herein. (f) Lot and principal structures, sizes and setbacks: (1) Minimum lot area, 9,000 square feet. (2) Minimum lot width, 60 feet (at front building line). (3) Minimum lot depth, 150 feet. (4) Maximum lot coverage, 50%. (5) Minimum floor area, 300 square feet. (6) Maximum height, 35 feet. (7) Minimum yard requirements: a. Front setback, 25 feet from lot line. b. Side interior lot setback, none; provided a public access is available to the rear of the lot for trash removal and fire protection. Otherwise, a minimum side setback of 15 feet on one side of the structure is required. c. Side corner lot setback, 20 feet from lot line. 10

d. Rear setback, 20 feet from lot line, except 25 feet when abutting a residential area, and 15 feet when abutting an alley. (8) Service station requirements: a. Building setbacks shall be a minimum of 70 feet from road rights-ofway with canopies and pumps at a minimum of 30 feet; on streets where no pumps are located,setbacks shall be at least 55 feet. b. Two curb cuts for ingress and egress are required for each street side. All curb cuts which adjoin state-controlled rights-of-way must also be approved by the State Department of Transportation. (g) Landscaping regulations: Front and side yard setbacks (excluding parking areas and driveways) shall be landscaped with ground cover, trees, and shrubs; other decorative arrangements such as rock gardens, walkways, dwarf trees, cobble, brick and like arrangements may be acceptable. Uncovered parking areas shall be landscaped with trees and shrubs. Except for driveways, the areas abutting the street rights-of-way from the curb to the property line shall be landscaped. The rights-of-way from the curb to the property line shall be landscaped and maintained by the owner. However, in no case shall the area landscaped be less than 20% of the total lot area, not including rights-of-way. (h) Sidewalk and parking lots: Sidewalks and parking lots shall be constructed and maintained by the owner along the public streets or highways abutting any developments in this District. (i) Supplementary regulations: As provided in 7A-50 through 7A-69. SECTION 3. That Section 7A-38, Appendix A, of the Town Code of the Town of Melbourne Beach, Florida, is hereby amended to read as follows: 11

7A-38. 8-B RESIDENTIAL-BUSINESS ZONE. (a) Intent. The provisions of this district are intended to apply to the historical area of the town along Ocean Avenue. Lot sizes and other restrictions are intended to promote and protect medium-density residential and business development while preserving adequate open space and the historical nature of the area and ensuring compatibility with other areas of the community. (b) Principal uses and structures: (1) Multi-family residences. (2) Single-family residences (provided such residences meet 3-RS requirements). (3) Duplexes. (c) Accessory uses and structures: Customary accessory uses of one or more of the principal uses clearly incidental and subordinate to the principal use and in keeping with the intent and purpose of the District. (d) Special exceptions: (1) Retail stores, sales and display rooms, including places where goods are produced and sold at retail on the premises. (1) (2) Personal service establishments including such as barber and beauty shops, and laundry and dry-cleaning pickup stations, tailor shops and similar uses. (2) (3) Professional offices, studios, clinics, and general offices, business schools and similar uses. (4) Vocational and trade schools not involving operations of an industrial nature. (5) Banks and financial institutions. (3) (6) Educational and cultural institutions. 12

(7) Public and private parking lots. (4) (8) Governmental and municipal buildings and public recreation areas. (5) (9) Bed and breakfast inns (e) Prohibited uses: (1) Residential rental Rental units rented for periods of less than one month. (2) Drive-in, drive-up, drive through, or any other similar feature that provides for receipt of goods, services, food, money or information by a consumer while seated in a motor vehicle. (3) All other uses not specifically or provisionally permitted herein. (f) Lot and principal structures, sizes, and setbacks: (1) Minimum lot area, 9,000 square feet. (2) Minimum lot width, 60 feet (at building setback line). (3) Minimum lot depth, 150 feet. (4) Maximum lot coverage, 40%. (5) Minimum floor area. a. Single-family structures, 1,400 square feet including one-half of the garage area not to exceed 200 square feet, excluding porches. b. Multifamily structures: 1. One-bedroom apartment, 800 square feet minimum. 2. Two-bedroom apartment, 1,000 square feet minimum. Additional bedrooms require an increase of 150 square feet for each additional bedroom. 3. Duplex, 2,000 square feet (1,000 square feet for each dwelling unit). 4. Businesses, 300 square feet minimum. 13

(6) Maximum density, 15 dwelling units per acre. (7) Maximum height, 28 feet. (8) Minimum yard requirements: a. Front setback, 25 feet from lot line. b. Side interior lot setback, none; provided a public access is available to the rear of the lot for trash removal and fire protection. Otherwise, a minimum side setback of 15 feet on one side of the structure is required. c. Side corner lot setback, 20 feet from lot line. d. Rear setback, 20 feet from lot line; except 25 feet when abutting a residential area, and 15 feet when abutting an alley. (9) Minimum distance between structures on the same lot, 15 feet. (g) Landscaping regulations: Front and side yard setbacks (excluding parking areas and driveways) shall be landscaped with ground cover, trees and shrubs; other decorative arrangements such as rock gardens, walkways, dwarf trees, cobble, brick and like arrangements may be acceptable. Uncovered parking areas shall be landscaped with trees and shrubs. Except for driveways, the areas abutting the street rights-of-way from the curb to the property line shall be landscaped. The rights-of-way from the curb to the property line shall be landscaped and maintained by the owner. However, in no case shall the area landscaped be less than 20% of the total lot area, not including rights-of-way. (h) Sidewalk and parking lots. Sidewalks and parking lots shall be constructed and maintained by the owner along the public streets or highways abutting any developments in this district. (i) Supplementary regulations: As provided in 7A-50 through 7A-69. 14

SECTION 4. That Section 7A-52, Appendix A, of the Town Code of the Town of Melbourne Beach, Florida, is hereby amended to read as follows: 7A-52. SIGNS. (a) Single-family districts: (1) Permitted signs and regulations. a. Sign exceptions (enumerated in 7A-52(g)). b. Prohibited signs (enumerated in 7A-52(h)). (b) Multi-family districts (4-RM, 5-RMO). Single-family dwellings in this district will follow sign criteria for single-family districts. (1) Permitted signs and size regulations: One attached sign or one freestanding sign shall be permitted per apartment complex. Attached signs shall not exceed 25% of the total surface area of the wall to which the sign is attached. In no case shall any attached sign exceed nine square feet in total surface area. Freestanding signs shall not exceed nine square feet in total area nor ten feet in height. (2) Sign regulations: a. Sign setbacks and additional information (enumerated in 7A-52(e)). b. Nonconforming signs (enumerated in 7A-52(i)). c. Sign exceptions (enumerated in 7A-52(g)). d. Prohibited signs (enumerated in 7A-52(h)). (c) Business districts (6-B, 7-C). (1) Permitted signs and size regulations: a. One attached sign (See 7A-3) per business establishment excluding signs installed, affixed, or painted on windows or doors. Attached signs shall not exceed 10% of the 15

total surface area of the front of the building to which the sign is attached or exceed 24 square feet in total surface area except that buildings with over 30 linear feet of frontage may add an additional six square feet of sign for each ten linear feet of frontage over the 30 feet. Measurement of fronts of buildings will include false fronts and mansard roof. Attached signs for special exception uses shall be limited to a maximum of 24 square feet. b. 1. One freestanding sign ( 7A-3) per building structure. Where there is more than one business in the same building structure, each business may advertise on the same sign but the total sign area may not exceed 45 square feet or 20 feet in height. However, a freestanding sign for each business is permitted provided these signs can be placed 50 feet from the freestanding or shingle sign of a neighboring business but must not exceed 32 square feet or 20 feet in height. 2. Freestanding signs positioned less than 20 feet forward of the front building line may not exceed 12 square feet in surface area and ten feet in height. Signs positioned 20 feet or more forward of the front building line may not exceed 22 square feet in surface area and 15 feet in height. For each additional ten feet behind the front building line over 20 feet, an additional two square feet may be added to the surface area of the freestanding sign to a maximum of 32 square feet and one additional foot in height may be added to a maximum of 20 feet. These signs may be set on the property line. c. One shingle sign not to exceed 12 square feet per business establishment is permitted in lieu of the freestanding sign in front. d. All business establishments are permitted one shingle sign at the rear of each establishment, provided said sign does not exceed 12 square feet. 16

e. Freestanding signs for special exception uses. Freestanding signs in the 6-B and 7-C zoning districts shall be monument style signs. The maximum size shall be 32 square feet. The maximum height shall be 10 feet. The minimum setback is 5 feet. Only one freestanding sign is allowed per special exception site. The sign shall be constructed of materials that are architecturally compatible with the primary building on the site. The sign shall not have internal lighting. Spot lights illuminating the sign shall be shielded so that the source of light is not visible to vehicular traffic or pedestrians. Shingle signs are not permitted for special exceptions. To the extent of any inconsistency in this Section 7A-52 with other sections, with regard to special exceptions this sub-paragraph supersedes other provisions in this Section 7A- 52. (2) Sign regulations. a. Sign setbacks and additional information (See division (e)). b. Nonconforming signs (See division (f)). c. Sign exceptions (See division (g)). d. Prohibited signs (See division (h)). (d) Residential-business districts (8-B). (1) Permitted signs and size regulations: a. One attached sign or one freestanding sign shall be permitted per apartment complex. b. One attached sign shall be permitted per business establishment. Attached signs shall not exceed 10% of the total surface area of the wall to which the sign is attached or exceed 16 square feet in total surface area except that buildings with over 30 feet of frontage may add 17

an additional four square feet of sign for each ten linear feet of frontage over 30 feet. Attached signs for special exception uses shall be limited to a maximum of 16 square feet. c. One freestanding sign per commercial structure shall be permitted. d. The total surface area of all freestanding signs shall not exceed 25 square feet or 15 feet in height. Such signs must be a minimum of 20 feet from the front building line. Signs less than 20 feet are allowed but may not exceed ten feet in height and nine square feet in surface area. e. Freestanding signs for special exception uses shall be monument style signs. The maximum size shall be 20 square feet. The maximum height shall be 8 feet. The minimum setback is 5 feet. Only one freestanding sign is allowed per special exception site. The sign shall be constructed of materials that are architecturally compatible with the primary building on the site. The sign shall not have internal lighting. Spot lights illuminating the sign shall be shielded so that the source of light is not visible to vehicular traffic or pedestrians. To the extent of any inconsistency in this Section 7A-52 with other sections, with regard to special exceptions this sub-paragraph supersedes other provisions in this Section 7A-52. (2) Sign regulations. a. Sign setbacks information (See division (e)). b. Nonconforming signs (See division (i)). c. Sign exceptions (See division (g)). d. Prohibited signs (See division (h)). (e) Sign setbacks and additional regulations. 18

(1) Signs may be placed on the property line. In no case may a freestanding or shingle sign be placed within 20 feet of an intersection unless the bottom of said sign is ten feet or more from the ground. (2) Attached signs affixed to a building shall be placed only on the front facade or roof and shall not protrude above the roof line or beyond the side corners of the front facade, project out more than two feet from the wall or extend more than one-half the distance above the base of the roof to the roof peak. (3) Signs of any type may not be placed on the roof of any structure. (4) It shall be unlawful for any owner or permittee to fail to remove any sign after ten days which advertises business, real estate or products no longer conducted, available or for sale on the premises. After notice to any owner, permittee, or real estate agency, the town may remove any sign which is in violation of this provision and charge the agency, permittee, or owner a $10 fee for the removal of the sign which is in violation of this provision. (5) Indirect lighting sources in use shall be shaded to eliminate glare on roadways, streets or surrounding properties. (6) Internally lit signs and signs illuminated by neon lights or bare bulbs shall not exceed two foot candles illumination at any property line. When property abuts a residential zone, illumination of signs shall not exceed two foot candles. (f) Nonconforming signs. (1) A sign or advertising structure existing within the town limits on the effective date of Ordinance 85-7, passed November 12, 1985, or a sign or advertising structure existing in an area annexed to the town after the effective date of this Land Development Code, which, by its 19

height, square foot area, location, or use of structural support does not conform to the requirements of this Land Development Code shall hereafter be termed nonconforming. (2) All nonconforming signs or advertising structures within the town limits shall be permitted to remain until such time as: a. Reserved. The business or services using the sign or advertising structure is discontinued. b. The sign or advertising structure becomes a hazard or obstruction. c. It becomes necessary to replace or rebuild the sign or building, at which time it shall conform to this section. d. That three years have passed from the date of Ordinance 85-7, passed November 12, 1985. In the event that a nonconforming sign is on newly annexed land, the three years will begin running as soon as the annexation shall become effective. (3) No conforming sign or sign structure shall be erected on the same lot with an existing nonconforming sign until the nonconforming sign has been removed. (4) Window signs. If a change in use occurs, no internally illuminated signs shall be allowed. (g) Sign exceptions. The following signs are exempt from the provisions of this section: (1) Memorial signs, tablets, plaques or names of buildings and date of erection when the same are two square feet or less in size and are cut into any masonry surface or when constructed of bronze or other noncombustible material. (2) Property numbers and names of occupants of premises having no commercial connotations and shall not exceed one square foot of total surface area. 20

(3) Legal notices and identification, informational or directional signs erected or required by governmental bodies. (4) Flags and insignia of any governmental level. (5) Traffic and other municipal signs, legal notices, railroad crossing signs and other safety directional signs. (6) Private directional signs when not more than two square feet in surface area. (7) Subdivision entrance signs not exceeding 32 square feet and not having any part of the sign structure exceeding eight feet in height. No more than two signs per entrance will be allowed. (8) Bulletin boards and signs of churches, schools and clubs not exceeding 32 square feet in area and not exceeding one per organization. If located on a corner lot, a 32-square-foot sign facing each street is allowed. (9) A construction or home improvement sign shall not exceed 16 square feet in surface area, not to be illuminated, and shall be removed immediately after completion of construction or improvement. (10) Any dispensing mechanism positioned outside of a business premise such as for ice cream, candy, soda, newspapers and such or for fuel pumps and the like, with a trademark or identification; also, any lighting fixture for the sole purpose of aiding in after-dark business operations or safety with a trademark or identification. (11) One real estate sign per interior lot or one sign facing each thoroughfare per corner lot shall be allowed. Real estate signs shall not exceed six square feet in total surface area or four feet in height. 21

(12) Political signs shall be permitted and display of the sign shall conform to the following: a. Maximum size of a political sign, four square feet. b. Signs may not be placed on rights-of-way. c. Political signs must be removed within 72 hours after the election. (h) Prohibited signs. (1) All other signs not specifically or provisionally permitted herein, such as flashing signs, billboard signs and banner signs, and signs which employ the words stop or danger so as to imply the necessity for stopping or the existence of danger, or which by other means make such an implication. (2) No sign is permitted on rights-of-way. (3) Real estate sold signs. SECTION 5. That Section 7A-152(c), Appendix A, of the Town Code of the Town of Melbourne Beach, Florida, is hereby amended to read as follows: 7A-152. POWERS AND DUTIES. * * * (c) Special Exceptions. (1) Limitations. The Board of Adjustment shall have the authority to hear and decide only such special exceptions as it is specifically authorized to pass on by the terms of this Land Development Code; to decide such questions as are involved in determining whether special exceptions should be granted; and to grant special exceptions with such conditions and safeguards as are appropriate under this chapter or other applicable ordinances; or to deny 22

special exceptions when not in harmony with the purpose and intent of the Land Development Code. A special exception shall not be granted by the Board unless and until: a. A written application for a special exception is submitted indicating the section of this chapter under which the special exception is sought and stating the grounds on which it is requested. b. Notice shall be given at least 15 days in advance of the public hearing. The owner of the property for which a special exception is sought or his agent shall be notified by certified mail. Notice of such hearing shall be posted on the property for which a special exception is sought, at the Town Hall, and shall be published in a newspaper of general circulation within the Town. c. A courtesy notice shall be mailed to the property owners of record within a radius of 500 feet. The town's failure to mail or the fact that the intended recipient shall not receive a courtesy notice shall in no way invalidate any action taken by the town or its Boards and Commissions. d. Any party may appear in person or be otherwise represented at the public hearing. The Board shall make such findings and determinations as it is empowered under the various sections of this chapter to do so. (2) Submittal Requirements. a. Development plans that include complete architectural drawings of all faces of a building and an overhead view shall be submitted with all special exception applications that include a new building(s), façade renovations, or substantial improvements to an existing building. The drawings shall be submitted in color and at the minimum shall include: 23

Architectural Style Exterior construction material specifications Color charts A site plan (see 7A-51) Structure dimensions and setbacks from all property lines Refuse service area location Mechanical outdoor equipment location Master outdoor lighting plan Screening devices Master signage plan Master landscaping plan Wall or Fence details Other information determined necessary by the Town to ensure consistency with the purpose and intent and the provisions of the Land Development Code. Specific requirements are found in section 7A-152(c)(3) and in section 7A-52 relating to signage, section 7A-53 relating to walls and fences; and section 9A relating to landscaping and trees, all in the land development code. b. Applications that propose a change of use in an existing building to a special exception use where architectural changes are not required or planned shall not be subject to architectural requirements with the exception of paint color. The building and site shall be retrofitted to meet other special exception criteria to the extent determined by the board 24

of adjustment. Landscaping of any existing open space areas and compliance with the signage and lighting requirements shall be required. c. The applicant shall also submit as a part of the application a narrative that explains how the use and the development will be compatible with surrounding uses in its function, its hours of operation, the type and amount of traffic to be generated, building size and setbacks, its relationship to land values and other factors that may be used to measure compatibility. (3) (2) Review criteria. Before any special exception shall be issued, the board of adjustment Board shall make written findings certifying compliance with the specific rules governing individual special exceptions, and that the grant of the special exception as depicted on the development plans satisfactory provisions and arrangements have been made concerning the following, where applicable meets or exceeds the following standards: a. Architectural style. Building design and construction, including but not limited to, exterior building materials specifications, shall conform to the Bungalow, Frame Vernacular, 1800 s Tidewater Style, Key West, or Gothic Revival architecture. Other historical architectural styles may be permitted upon application to the board of adjustment, if the applicant demonstrates and the board of adjustment determines that the utilization of such style contributes positively to the historic character of the Town and is consistent with the intent of the land development code. Examples of architectural style shall be available in the office of the building official. Ingress and egress to property and proposed structures thereon with particular reference to automotive and pedestrian safety and convenience, traffic flow and control and access in case of fire or catastrophe; 25

b. Compatibility. The special exception, as depicted on the development plans, is compatible with adjacent and nearby uses, developments, structures, and neighborhoods and will not alter the character of the community and neighborhood or be contrary to emerging development trends in the community and the neighborhood. Off-street parking and loading areas where required, with particular attention to the items in division (c)(1) above, and the economic, noise, glare or odor effects of the special exception on adjoining properties and properties generally in the district; c. Building orientation. Buildings shall be oriented so as to enhance the appearance of the streetscape. Refuse and service areas, with particular reference to items in division (c)(1) and (2) above; 1. All facades of a building that face a road shall have an entrance to the building that is parallel to the roadway. The building shall not be limited to entrances facing roadways. Alternative entrances facing parking lots, driveways, or open space are permitted. The entrance to the building shall face parallel to the public right-of-way. 2. Each façade that is visible from a public right-of-way shall be designed with full architectural treatment including door and window placements, façade architectural treatments and detail, roof design, and building materials applications necessary to give the appearance that each visible façade is a primary façade. 3. The architectural treatment requirements shall also be applied to any building façade that is situated where it is clearly visible from a public area of an adjoining site, unless the town board of adjustment allows landscape buffering to serve as an alternative to the architectural treatment. 26

4. Building orientation shall ensure that service areas are placed out of view from public rights-of-way, parking areas, and adjacent properties. Where, because of site constraints service areas can not be so located, such areas shall be screened from view by vegetative or structural means. Any structural screening shall be architecturally compatible with the principal building in terms of style, colors, construction materials, and finish. 5. Mass, bulk, and scale of all structures shall be compatible with other structures and uses both in the same zoning district and in the neighborhood. d. Exterior materials and colors. Exterior building materials and colors contribute significantly to the visual impact of a building on a community which in turn, reflects upon the visual character and quality of a community. In order to project an image of high quality town aesthetics, exterior building materials and colors shall conform to the following requirements: Utilities, with reference to locations, availability and compatibility; 1. All buildings shall be faced with materials that exhibit a durable, high quality appearance. 2. Acceptable exterior facing materials shall include those that are consistent with the architectural style of the building. 3. Exterior colors shall be historically consistent colors used along Ocean Avenue. These colors are dominated by pastels and shades of white. Accent colors and colors consistent with the proposed architectural style may be approved if determined to be compatible with the character of surrounding and nearby structures. 4. Building materials and colors shall be consistent around the entire building. The application may include proposed exceptions to this requirement. The 27

board of adjustment may grant exceptions, if it is demonstrated that the proposal remains compatible with the Ocean Avenue corridor and adjacent residential uses. 5. Once a final development plan has been approved a change in color(s) shall be made only after application to, and approval by, the board of adjustment. e. Roof design. Roofs are an integral part of building design, and shall be designed and constructed to compliment the character of the building. Roof design and construction shall conform to the following requirements: Screening and buffering with reference to type, dimensions and character; 1. Roofs shall be constructed of durable high quality material in order to enhance the appearance and attractiveness of the town. Roofing materials shall be similar in appearance with materials that are historically consistent with the architectural style of the building. 2. The design of roof structures shall be consistent with the architectural style of the building and shall extend to all sides of the building. 3. Roofs shall be designed to be of a height, bulk, and mass so as to appear structural even when the design is non-structural. f. Refuse service areas. Signs, if any, and proposed exterior lighting effects and compatibility and harmony with properties in the district; 1. Refuse service areas shall be located in a manner that minimizes impacts to adjacent residential properties. 2. Refuse service areas shall be screened from adjacent properties and rights-of-way by an enclosure that is constructed of durable building materials such as concrete, stone, or brick. The enclosure shall be faced with the same style as the façade 28

of the primary structure on the site. The gate to the enclosure shall have a similar appearance as the façade of the building. The enclosure shall be the same color as the primary structure. 3. Enclosures shall be large enough and located in a manner that service vehicles can access the dumpster while it is in the enclosure. g. Mechanical equipment operation and location. Required yards and other open spaces; 1. Mechanical equipment shall be located in a manner that minimizes impacts to adjacent residential properties. 2. Mechanical equipment, including equipment located on roofs shall be screened from view of adjacent residential properties and rights-of-way. Screening shall be of a material that is consistent with the architecture of the building. h. Lighting. Height; 1. Outdoor lighting shall be arranged so that the light source is shielded from adjacent residential properties and rights-of-way. Light fixtures shall a type that directs the light downward. 2. Outdoor lighting shall be arranged so that no portions of adjacent residential properties are covered by the light shadow. There shall be no glare or spillover effect of lighting from the property on which a special exception is approved to adjacent properties, and all lighting shall comply with Section 46-91 through 46-97, Brevard County Code, relating to safeguarding nesting female and hatchling marine turtles from sources of artificial light. i. Landscaping and trees. Landscaping and trees are subject to specific requirements for special exceptions found in chapter 9A of this land development code. 29

j. Signs. Signs are subject to specific requirements for special exceptions found in section 7A-52 of this land development code. Renewal or termination dates; and k. Walls and Fences. Walls and fences are subject to specific requirements for special exceptions found in section 7A-53 of this land development code. That the use will be reasonably compatible with surrounding uses in its function, it hours of operation, the type and amount of traffic to be generated, building size and setbacks, its relationship to land values and other factors that may be used to measure compatibility. l. Comprehensive Plan. No special exception shall be granted unless it is first determined by the board of adjustment that the special exception and development plans are consistent with the comprehensive plan. A special exception shall not be presumed to be consistent with the comprehensive plan merely because it is listed in the land development code as a special exception in a given zoning district. (4) Prohibited activities. Special exception uses that include the following activities shall not be approved: a. Utilizes shared parking from a zoning district that allows a higher intensity use. b. Combines the property with property in a zoning district that allows a higher intensity of use where it will result in a larger structure on the property proposed for the special exception than would otherwise be permitted. c. Has a drive-in, drive-up, drive through, or any other similar feature that provides for receipt of goods, services, food, or information from a motor vehicle. 30

(5) Site plans. No special exception shall be effective unless it conforms to a site plan in compliance with the requirements of section 7A-51, which site plan is approved by the town commission. All development shall comply with the site plans considered by the board of adjustment, unless the site plan is otherwise modified and approved by the planning and zoning board and/or the town commission. (6) (3) Conditions and safeguards. In granting any special exception, the Board of Adjustment may prescribe appropriate conditions and safeguards in conformity with this Land Development Code. Violation of such conditions and safeguards, when made a part of the terms under which the special exception is granted, shall be deemed to be a violation of this Land Development Code and punishable as provided by this code. The Board shall prescribe a time limit within which the action for which the special exception is required shall be begun or completed, or both. Failure to begin or complete, or both, such action within the time limit set shall void the special exception. SECTION 6. That Section 9A-7, Appendix A, of the Town Code of the Town of Melbourne Beach, Florida, is hereby amended to read as follows: 9A-7. MININUM TREE PLANTINGS. (a) Trees in residential zoning districts. A minimum of three trees must exist or must be planted on each newly developed residential lot. Trees planted must be of a variety which is compatible with the existing soil and drainage-conditions and must be provided with adequate water and food materials to encourage growth. Trees shall be planted in locations so as not to cause damage to nor interference with existing structures at the time of maturity. (b) Buffer and tree planting requirements for special exception uses. 31

(1) A landscape buffer with a minimum of 10 feet in width shall be provided between any residentially zoned property and a property utilized for a special exception use. The landscape buffer shall include a minimum of one (1) canopy tree for every 40 linear feet, or fraction thereof. In addition one ornamental tree or palm shall be planted for each 50 linear feet, or fraction thereof. (2) A landscape buffer with a minimum of 10 feet in width shall be provided along all road frontage of the site. The landscape buffer shall include a minimum of one canopy tree for every 25 feet of frontage, or fraction thereof. (3) A continuous hedge shall be planted in all perimeter landscape buffer areas. (4) Parking areas shall be designed so that there is a minimum of 200 square feet of open space, not including perimeter landscape buffer areas, at the end of each row of parking. In addition a minimum of 200 square feet of open space shall be provided in the interior of the parking lot for each 10 parking spaces, or fraction thereof. These open spaces shall be distributed through out the parking lot in a manner that no more than 10 parking spaces in a row shall be allowed with out an intervening landscaped area. (5) Minimum specifications for trees and hedge material shall be as follows: a. Canopy trees at the time of planting shall have a trunk diameter of 3 inches measured 4.5 feet above the ground. The trees shall be a minimum of 10 feet in height and have a minimum spread of 7 feet. b. Ornamental trees at the time of planting shall have a trunk diameter of 1.5 inches measured 4.5 feet above the ground. The trees shall be a minimum of 6 feet in height and have a minimum spread of 4 feet. 32

c. Palms at the time of planting shall have a minimum clear trunk of 8 feet. d. Hedge material at the time of planting shall be a minimum of 24 inches in height when planted. Individual plants shall be planted a maximum of 24 inches on center. (6) All plant material shall be Florida Number 1 in quality and shall be planted according to sound landscape installation standards. (7) All landscaping shall be maintained to present a neat and orderly appearance. Dead, deteriorating, or missing landscape material shall be replaced with substantially equivalent landscaping as permitted by the land development code. Replacement of landscaping material shall occur within 60 day, unless said time is extended by the town manager for good cause shown. (8) Exceptions shall be considered on an individual basis when obstacles such as overhead power lines or other conditions inhibit the ability to comply. (9) Canopy trees shall be those that develop a crown spread of 30 feet or greater at maturity. Trees with less than 30 feet of crown spread at maturity shall be considered ornamental trees. SECTION 7. 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, 33