§ 167.01. Wetlands.

(A)

Purpose and intent.

(1)

Whereas, pursuant to F.S. ch. 373, wetlands and surface waters are protected because they often serve as spawning, nursery and feeding habitats for many species such as fish and wildlife; and because they often provide important flood storage, detrital production, nutrient cycling, navigation and recreation and water quality functions;

(2)

Whereas, a wide array of biological, physical and chemical factors affect the functions of wetlands and surface water systems such as streams, rivers and estuaries, the State of Florida has declared the maintenance of water quality standards in wetlands and other surface water systems to be critical in sustaining their many functions;

(3)

Whereas, the State of Florida has declared the Indian River Lagoon as a priority water body in need of restoration and special protection, and has established a goal to attain and maintain the water and sediment quality needed to support a macrophyte-based (seagrass) system, endangered and threatened species, fisheries and recreation in the lagoon;

(4)

Whereas, protection of littoral and wetland vegetation along the Indian River Lagoon shoreline prevents soil erosion, reduces turbidity levels detrimental to water quality and protects life and property from potential flood waters; and

(5)

Whereas, protection and maintenance of wetlands in Indian River Shores supports federal and state goals to achieve no net loss of wetlands as well as to create and restore wetlands to increase the quantity and quality of the wetland resource base.

(6)

Therefore, the town shall work in concert with state and federal regulatory agencies having jurisdiction to implement protection standards that preserve wetlands and associated adjacent uplands; and when a state agency having jurisdiction deems mitigation appropriate for compensating a project impact, the town shall coordinate with the state agency to assure that the overall mitigation complies with the "no net loss" state policy.

(B)

Definitions and abbreviations.

DEP. The Florida Department of Environmental Protection.

Development. The construction, installation, demolition or removal of a structure, impervious surface or drainage facility; clearing, scraping, grubbing, killing or otherwise removing vegetation; adding, removing, exposing, excavating, leveling, grading, digging, furrowing, dumping, piling, filling, dredging or otherwise significantly disturbing or altering soil, mud, sand or rock; or the modification or redevelopment of a site. Development may include, but is not limited to, carrying out of any building or mining activity, the making of any material change in the use or appearance of any structure or land or the dividing of land into two or more parcels. The following activities shall be construed to involve development:

(1)

Reconstruction, alteration of the size or material change in the external appearance of a structure;

(2)

Change in land use intensity, such as an increase in the number of units in a structure or on the land;

(3)

Alteration of a shore or bank of a seacoast, river, stream, lake, pond or canal;

(4)

Alteration of the land or vegetation in a floodplain or flood prone area;

(5)

Dredging, drilling, except to obtain soil samples, mining or excavation on land;

(6)

Demolition of a structure;

(7)

Clearing of land; and

(8)

Deposit of refuse, solid or liquid waste or fill on land.

The term "development" includes all other development customarily associated with it, unless otherwise specified. When appropriate to the context, development refers to the act of developing or to the result of development. Reference to particular activities is not intended to limit the generality of the term "development."

District. The St. Johns River water management district.

Dredging. Excavation by any means in surface waters or wetlands, as delineated in subsection F.S. 373.421(1). Excavation also means the excavation or creation of a water body which is, or is to be, connected to surface waters or wetlands as delineated in subsection F.S. 373.421(1), directly or via an excavated water body or series of water bodies (F.S. subsection 373.403(13)).

Ecological value. The value of functions performed by uplands, wetlands and other surface waters to the abundance, diversity, and habitats of fish, wildlife and listed species. These functions include, but are not limited to, providing cover and refuge; breeding, nesting, denning and nursery areas; corridors for wildlife movement; food chain support; and natural water storage, natural flow attenuation, and water quality improvement, which enhances fish, wildlife and listed species utilization, (F.S. subsection 373.403(18)).

Endangered species. Those animal species which are listed in section 39-27.003, F.A.C., and those plant species which are listed as endangered in 50 Code of Federal Regulations 17.12.

Enhancement. Improving the ecological value of wetlands, other surface waters or uplands that have been degraded in comparison to their historic condition.

Estuary. A semi-enclosed, naturally existing coastal body of water which has a free connection with the open sea and within which seawater is measurably diluted with fresh water derived from riverine systems (F.S. subsection 373.403(15).

Existing nesting or denning. An upland site which is currently being used for nesting or denning, or is expected, based on reasonable scientific judgment, to be used for such purposes based on past nesting or denning at the site.

FFWCC. The Florida Fish and Wildlife Conservation Commission.

Filling. The deposition, by any means, of materials in surface waters or wetlands, as delineated in F.S. § 373.421(1), (as defined in F.S. § 373.403(14)).

Hydrologically sensitive area. Wetlands and those geographical areas which are specifically designated as hydrologically sensitive areas by the agency having jurisdiction because of the importance of the hydrology and hydraulics of the area in meeting the legislative policy contained in F.S. § 373.016.

Hydroperiod. The period of inundation of a wetland. Communities with long hydroperiods are most viable and wetlands with this characteristic may receive wastes and runoff from urban lands since they have greater potential for year-round nutrient uptake.

Impervious. Land surfaces which do not allow, or minimally allow, the penetration of water; included as examples are building roofs, normal concrete and asphalt pavements and some fine grained soils such as clays.

Lagoon. A naturally existing coastal zone depression which is below mean highwater and which has permanent or ephemeral communications with the sea, but which is protected from the sea by some type of naturally existing barrier as defined in F.S. § 373.403(16).

Listed species. Those animal species which are endangered, threatened or of special concern as designated pursuant to F.A.C. 68A-27.0001, et seq., and those plant species listed in 50 Code of Federal Regulation 17.12 when such plants are found to be located in a wetland or other surface water.

Mitigation. An action or series of actions to offset the adverse impacts that would otherwise cause a development to fail to meet the SJRWMD criteria. Mitigation usually consists of restoration, enhancement, creation, preservation or a combination thereof.

Preservation. The protection of wetlands, other surface waters or uplands from adverse impacts by placing a conservation easement or other comparable land use restriction over the property, or by donation of fee simple interest in the property.

SJRWMD. The St. Johns River Water Management District.

State agency. For purposes of this section 167.01, means the St. Johns River Water Management District (SJRWMD), Florida Department of Environmental Protection (DEP) or other successor agency of the State of Florida delegated authority to administer, enforce or implement state environmental regulations, administrative code or laws.

Stormwater management system. A system which is designed and constructed or implemented to control discharges which are necessitated by rainfall events, incorporating methods to collect, convey, store, absorb, inhibit, treat, use or reuse water to prevent or reduce flooding, overdrainage, environmental degradation and water pollution or otherwise affect the quantity and quality of discharges from the system as defined in F.S. § 373.403(10).

Submerged lands. For purposes of this section 167.01, means lands beneath tidally-influenced waters associated with the Indian River Lagoon including but not limited to tidal lands, shallow banks and lands waterward of the mean high water line of the Indian River Lagoon.

Surface water management system or system. A stormwater management system, dam, impoundment, reservoir, appurtenant work, or works, or any combination thereof. The terms "surface water management system" or "system" include areas of dredging or filling, as those terms are defined in F.S. §§ 373.403(13) and 373.403(14).

Threatened species. Those animal species which are listed as threatened as designated pursuant to F.A.C. 68A-27.0001, et seq., and those plant species which are listed as threatened in 50 Code of Federal Regulations 17.12.

Tidal wetlands. Wetlands hydrologically connected to the Indian River Lagoon.

Uplands. Land that is not "submerged land" and is not a "wetland" as defined herein.

USFWS. The U.S. Fish and Wildlife Service.

Wetlands. Those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soils. Soils present in wetlands generally are classified as hydric or alluvial, or possess characteristics that are associated with reducing soil conditions. The prevalent vegetation in wetlands generally consists of facultative or obligate hydrophytic macrophytes that are typically adapted to areas having soil conditions described above. These species, due to morphological, physiological or reproductive adaptations, have the ability to grow, reproduce or persist in aquatic environments or anaerobic soil conditions. Florida wetlands generally include swamps, marshes, bayheads, bogs, cypress domes and strands, sloughs, wet prairies, riverine swamps and marshes, hydric seepage slopes, tidal marshes, mangrove swamps and other similar areas. Florida wetlands generally do not include longleaf or slash pine flatwoods with an understory dominated by saw palmetto, as defined in F.S. § 373.019(17). The landward extent of wetlands is delineated pursuant to chapter 17-340, F.A.C., as ratified by F.S. § 373.4211.

Wetland delineation. The line demarcating a wetland/upland interface.

Wetland impact. Any removal, destruction or alteration of vegetation or the excavation of wetland soils.

(C)

Unified statewide methodology for wetland delineation. The methodology used to delineate the landward extent of regulated wetlands and surface waters shall follow the unified statewide methodology set forth in the Florida Administrative Code and Florida Statutes. The applicant shall file a wetlands assessment report responsive to the state's unified methodology for wetland delineation, impact assessment and possible mitigation strategy. The report shall also address the impacts of the proposed development based on criteria identified in sub-sections 167.01(G-I) of this chapter.

(1)

Wetland delineation determination. At any time in which the town suspects that wetlands may be present on a site based on soil or vegetation, the applicant must obtain formal wetland delineation or a letter in which the state agency determines that wetlands are not present. An applicant for development potentially impacting wetlands shall submit a site plan and conditional use approval application to the town and the applicant shall concurrently commence coordination with the St. Johns River Water Management District (SJRWMD) and any other public agency having jurisdiction over the potentially impacted wetlands. The applicant shall ensure that the town manager receives a copy of all formal communications with such agencies in an expeditious manner.

Similarly, the applicant shall provide the town manager a copy of all reports and information submitted to an agency having jurisdiction, especially the initial correspondence requesting such agency to initiate or conduct a formal review as well as determination and/or recommendations and conditions documented by the agencies having jurisdiction.

(2)

Town review and administration. Development review of any plan potentially impacting wetlands shall direct highest priority to the continued preservation and enhancement of the physical and biological functions of wetlands. The town shall be bound in such wetland preservation actions to preserving reasonable development rights as opposed to highest and best use or the most economically beneficial use of the land. This policy is predicated on the town's adopted comprehensive plan, the State of Florida's coastal management legislation (F.S. Ch. 163, Part II) and state statutes, including, but not limited to the State of Florida's Water Resource Plan (F.S. Ch. 373) and administrative rules, including, but not limited to F.A.C. Ch. 62 and Ch. 40C, FAC, as may be amended.

(a)

Investigation and wetland boundary determinations:

(i)

The town building official shall forward all applications for rezoning and/or development potentially impacting a wetland to the town manager. Upon receipt of the applicant's technical data, the town manager or designee shall review the development pursuant to the town's Land Development Code, including wetland boundaries and wetland impacts and coordinate the same with the applicant. The applicant shall ensure that SJRWMD communications regarding wetland delineation and impact assessment are delivered to the town expeditiously in order to facilitate the resolution of issues impacting field investigations, wetland boundary delineations and wetland impacts, including wetland buffers and planned upland improvements. The intent is that the analysis of wetlands by the town and the SJRWMD occur concurrently and that the town review the findings of the St. Johns River Water Management District (SJRWMD) and any other agencies having jurisdiction and coordinate issues of mutual concern.

(ii)

The town manager or designee shall coordinate resolution of wetland issues with other public agencies having jurisdiction in the impacted area in order to resolve issues surrounding disputed boundaries as well as any disputed results of wetland assessments, needed site plan or preliminary plat revisions, and potential mitigation strategies. The town staff shall incorporate recommendations of the town and the SJRWMD regarding any such issues into its technical development review and submit the same to the planning, zoning and variance board. The town council shall render final decisions on site plans, including wetland issues, based on recommendation of the planning, zoning and variance board and consideration of technical findings.

(b)

Wetland management determinations and development stipulations:

(i)

Technical report and coordination with agencies having jurisdiction. The town manager or designee shall coordinate technical issues concerning wetland development petitions or requests for exceptions based on information provided by the applicant, public agencies having jurisdiction over the wetlands and findings and recommendations of the town's consultant as appropriate. Where a proposed land use or development activity is deemed appropriate, the technical report shall stipulate recommended conditions necessary to preserve the function of wetlands. Such stipulated conditions shall be predicated on consideration of the developer's application and supportive technical analysis and shall reflect the consideration of performance standards and criteria cited in this chapter.

(ii)

Conditions and limitations. The town council may place conditions on any exception or development approval as herein provided including, but not limited to, required mitigation and the dedication of a conservation easement to the town in order to assure that wetlands are perpetually preserved and conserved. Wetlands shall be subject to all applicable land development regulations of the federal and state permitting agencies as well as regulations contained in the town of Indian River Shores Comprehensive Plan and Code of Ordinances.

(iii)

Disputes, appeals and reconciliation. The applicant shall submit a copy of the SJRWMD letter of determination within ten days of its issuance. Upon the town's receipt of the state's formal wetland delineation and impact assessment, including any proposed mitigation strategy, the town council will accept or appeal the state agency's formal wetland delineation determination, site plan assessment and mitigation strategy, if any. If the town council appeals the state agency's formal determination, the basis for the appeal shall be based on the review and written comment submitted by the town's environmental expert, who shall be a professional environmental engineer, limnologist, soil scientist or biologist with demonstrated experience in protecting the physical and biological functions of wetlands from potential adverse impacts of development.

Upon the town council's decision to appeal a formal wetland delineation impact assessment, including any proposed mitigation strategy occurring pursuant to section 167.01(I)(3) herein, the town manager shall submit a written appeal to the state agency in the time prescribed by law. Review of a development order or permit application for property containing or abutting wetlands shall not commence until conclusion of the appeal process.

(D)

Wetlands development restricted and buffer required. Development in or on wetlands is prohibited except for projects compliant with the provisions of this section 167.01, including compliance with permitting requirements of state and federal agencies having jurisdiction, which shall be demonstrated by duly issued permits from such agencies. The town shall require that tidal wetlands be protected by requiring upland buffers with a minimum width of 25 feet. The town may require an increase in such specifications on a case by case basis if, after considering recommendations of the town staff and/or biologist, hydrologist, soil scientist or other similar environmental expert knowledgeable in coastal wetland ecosystems and associated hydrology, the town council determines that an increased buffer is required to protect a particular habitat, wetland and/or water resources against potential adverse impacts.

(1)

Wetland density transfers. The town comprehensive plan assigns a density of one unit per five acres to wetlands whose location and extent are determined and confirmed by a state agency. Density may be transferred from a wetland ("sending area") to a contiguous upland under unity of title ("receiving area"). The upland "receiving area" shall not be separated from the wetland "sending area" by submerged land, public land (including rights-of-way) or any other land that is not under unity of title. No density credits shall be assigned to submerged land. The maximum density within the receiving upland shall not exceed one and a half times the density delineated on the future land use map. A proposed plan involving any density transfer shall demonstrate compatibility with development within 200 feet of the perimeter of the subject site; shall be compliant with all applicable rules and regulations of the federal government, state and the town including, but not limited to, site plan review considerations, availability of infrastructure and preservation of adjacent environmentally sensitive areas; and shall require approval as a conditional use including compliance with conditional use criteria stated herein.

(2)

Character of wetland buffer; conservation easement. Buffers shall remain in an undisturbed condition, except for drainage features such as spreader swales and discharge structures, provided the construction or use of these features does not adversely impact wetlands. Existing vegetation within the upland buffer shall be preserved and no turf or ornamental grass species shall be allowed. Within required vegetative buffers any exotic species as specified in section 163.04(D) shall be removed and replaced with native ground and understory species and native trees species approved by the town council. A vegetated berm, swale or other approved run-off control device shall be installed on the upland side of the buffer. No impervious surface shall be permitted therein. Prior to issuance of a certificate of occupancy, a conservation easement shall be submitted to the town and recorded with the clerk of the circuit court for all remaining wetland areas within the subject lot.

(3)

Exemptions. The following are exempt from the provisions of section 167.01:

(a)

Any development, construction or use initiated according to any valid building permit or site plan development order issued or approved by the town prior to the original effective date of this ordinance;

(b)

Any public works or utilities projects initiated by the town to provide utility services or access to public property;

(c)

Mosquito control conducted by the town or the county mosquito control district;

(d)

Construction of public nature trails or raised boardwalks on publicly-owned property;

(e)

The reestablishment of native vegetation within publicly-owned property; and

(f)

Maintenance and management of stormwater management facilities and mitigation projects duly permitted by the town and state or federal agencies having jurisdiction.

(E)

Development restrictions in submerged lands.

(1)

Filling prohibited. Placement of fill material in or on submerged lands is prohibited except for the following circumstances:

(a)

Improvements to existing public roads or rights-of-way.

(b)

Shoreline protection infrastructure approved by the town council and the U.S. Corps of Engineers.

(c)

Spoil islands associated with dredging activities within navigable waters of the Indian River Lagoon, as authorized by the U.S. Corps of Engineers.

(2)

Permitted structures. The following structures shall be permitted within or above submerged lands subject to compliance with applicable provisions of the town's Land Development Code and issuance of permits from applicable state agencies: boat docks, raised boardwalks or piers.

(F)

Town review of development plans. As part of the development review process during review of the preliminary plat or site plan as appropriate, the town shall coordinate its review of development adjacent to the Indian River Lagoon and/or wetlands with state and federal agencies having jurisdiction over development impacts to wetlands, including the submerged land, habitat and surface waters, including the SJRWMD, DEP and the FFWCC. The common objective shall be to protect and conserve the beneficial functions of these resources. At the time an applicant submits an application for permit approval by a state or federal agency having jurisdiction over a proposed development impacting wetlands, habitat, surface water management systems or submerged lands within the town limits, the applicant shall concurrently file a copy of such application, including all supportive narrative and graphic information, with the town manager. The applicant shall submit to the town manager all subsequent updates and/or revisions to applications as well as documents pertaining to predispositions, conditions and actions of the agencies having jurisdiction.

(G)

Procedure for evaluating permit applications. The procedure for evaluating development with potential wetland impacts commences with a determination of whether the proposed development yields no net adverse impacts to wetlands, habitat and water quality. Secondly, if the development is found to have adverse wetland impacts a determination shall be made regarding whether the adverse impacts to the wetland system, water quality, unique habitats and other factors surrounding the public interest can be eliminated or reduced by revisions to the applicant's plans. Thirdly, if any adverse impacts which remain after practicable design modifications have been made, the adverse impacts must be mitigated.

(H)

Criteria applied in determining "no net adverse impacts." As part of the development review process, during review of the preliminary plat or site plan as appropriate, the applicant shall provide reasonable assurances that the proposed development will not impact the values of wetland and other surface water functions so as to cause adverse impacts to fish, wildlife and listed species, including their abundance, diversity and their habitat. Where habitats for listed species are present, the applicant may be required to provide a wildlife survey of listed species and provide information regarding site characteristics, the range and habitat needs of listed species potentially impacted, and whether the proposed development will adversely impact the listed species, including their habitat. Survey methodologies employed to inventory the site must provide reasonable assurances regarding the presence or absence of the subject listed species. When assessing the value of functions that any wetland or other surface water provides to fish, wildlife and listed species, the applicant shall consider the following factors:

(1)

Condition. Whether the wetland or other surface water is in a high quality state or has been the subject of past alterations in hydrology, water quality or vegetative composition;

(2)

Hydrologic connection. The nature and degree of offsite connection that may benefit off-site water resources through detrital export, base flow maintenance, water quality enhancement or the provision of nursery habitat;

(3)

Location and uniqueness. The location and relative rarity of the wetland or other surface water and its floral and faunal components in relation to the surrounding regional landscape;

(4)

Fish and wildlife utilization. Use of the wetland for resting, feeding, breeding, nesting or denning by fish and wildlife, particularly those which are listed species; and

(5)

Water quantity impacts on established hydroperiod. The applicant must provide reasonable assurance that the development will not change the hydroperiod of a wetland and water resources so as to adversely affect wetland functions or other surface water functions to include the following as applicable:

(a)

Whenever portions of a system, such as constructed basins, structures, stormwater ponds, canals, and ditches, could have the effect of reducing the depth, duration or frequency of inundation or saturation in a wetland or other surface water, the applicant must perform an analysis of the drawdown in water levels or diversion of water flows resulting from such activities and provide reasonable assurance that these drawdowns or diversions will not adversely impact the functions that wetlands and other surface waters provide to fish and wildlife and listed species.

(b)

Increasing the depth, duration or frequency of inundation through changing the rate or method of discharge of water to wetlands or other surface waters or by impounding water in wetlands or other surface waters must also be addressed to prevent adverse effects to functions that wetlands and other surface waters provide to fish and wildlife and listed species. Different types of wetlands respond differently to increased depth, duration or frequency of inundation. Therefore, the applicant must provide reasonable assurance that activities that have the potential to increase discharge or water levels will not adversely affect the functioning of the specific wetland or other surface water subject to the increased discharge or water level.

(c)

Whenever portions of a system could have the effect of altering water levels in wetlands or other surface waters, applicants shall be required to monitor the wetland or other surface waters to demonstrate that such alteration has not resulted in adverse impacts; or calibrate the system to prevent adverse impacts. Monitoring parameters, methods, schedules and reporting requirements shall be specified in permit conditions.

(6)

Public interest considerations. If the development is anticipated to significantly degrade, the applicant must provide assurances that the activity is clearly in the public interest by demonstrating that the positive impacts significantly outweigh the negative impacts, including:

(a)

Whether the development will adversely affect the public health, safety or welfare or the property of others;

(b)

Whether the development will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;

(c)

Whether the development will adversely affect navigation or flow of water or cause harmful erosion or shoaling;

(d)

Whether the development will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity;

(e)

Whether the development will be of a temporary or permanent nature;

(f)

Whether the development will adversely affect or will enhance significant historical and archaeological resources; and

(g)

The current condition and relative value of functions being performed by areas affected by the proposed development.

(7)

Evaluate impacts to quality of receiving waters. The applicant must provide assurances that the short and long term impacts of the proposed development will not adversely affect the quality of receiving waters and demonstrate compliance with applicable state water quality standards. Reasonable assurances regarding water quality must be provided both for the short term and the long term, addressing the proposed construction, alteration, operation, maintenance, removal and abandonment of the system.

(8)

Assess secondary impacts to water resources. The applicant must demonstrate that the proposed development will not cause adverse secondary impacts to the water resources. The town may require above minimum standard buffers in order to ensure that secondary impacts to the habitat functions of wetlands are protected, especially habitat for listed species.

(9)

Consider cumulative impacts. A development shall not cause unacceptable cumulative impacts upon wetlands and other surface waters. Cumulative impacts are considered unacceptable when the proposed development, considered in conjunction with the past, present and future development activities, is anticipated to result in a violation of state water quality standards or cause significant adverse impacts to functions of wetlands and water resources.

(I)

Uniform mitigation methodology. If adverse wetland impacts cannot be eliminated by adjustments to the plan, the adverse wetland impacts must be appropriately mitigated. Standards to determine the amount of mitigation needed to offset adverse impacts to wetlands shall follow the uniform mitigation assessment method established in Florida Statutes and Florida Administrative Codes. Applicants are encouraged to consult with SJRWMD staff in pre-application conferences and involve the town manager or designee to identify appropriate mitigation options. The town shall require that any off-site mitigation occurs within the town's municipal limits unless the applicant in concert with the district demonstrates to the town's satisfaction that no combination of sites meeting the state mitigation requirements exist within the town. In the latter case, the town's preference shall be that the mitigation occur on a site within Indian River County that lies within the town's regional watershed and that such off-site mitigation would improve and/or protect water quality of the Indian River and meet district mitigation requirements.

(1)

Wetland mitigation assessment. Any property owner, developer or entity proposing to adversely impact a wetland (hereinafter "applicant") shall prepare a wetland mitigation assessment report. The report shall be prepared in written and illustrative form and shall comply with the state's uniform mitigation assessment methodology as set forth in Florida Statutes and Florida Administrative Codes. If the proposed mitigation site is not located within the town, the applicant must provide written documentation demonstrating why a mitigation site located within the town limits could not be obtained.

(2)

Use of experts for wetland assessment. Wetland mitigation assessments shall be performed by a professional specializing in biology, hydrology, soil science or related environmental expert knowledgeable in coastal wetland ecosystems and associated hydrology. A development applicant or property owner is responsible for retaining an environmental expert at the applicant's own expense to perform the required wetland mitigation assessment.

(3)

Review of wetland mitigation assessment . The wetland mitigation assessment report shall be submitted to the town manager. The town shall retain the services of a professional biologist, hydrologist, soil scientist or other similar environmental expert knowledgeable in coastal wetland ecosystems and associated hydrology (hereinafter "environmental expert"). Upon review of the wetland mitigation assessment report for consistency and compliance with the state's uniform mitigation assessment methodology, the town's environmental expert shall prepare and submit written recommendations to the town manager recommending that the town council deny, accept or accept with conditions appropriate wetland mitigation. The cost to the town for the services of its environmental expert shall be borne by the applicant. Prior to the hiring of the environmental expert, the town manager may require a deposit from the applicant to pay for the services of the environmental expert.

(4)

Reconciliation and consistency with state agency wetland mitigation requirements. If the state agency requires a greater amount of mitigation than that required by the town, the amount required by state agency shall apply. If mitigation requirements imposed by the town for wetland impacts of an activity regulated under this section 167.01 cannot be reconciled with mitigation requirements approved under a permit for the same activity issued by the state agency, the state agency mitigation requirements shall be followed.

(5)

Monitoring requirements for mitigation areas. Applicants shall monitor the progress of mitigation areas until success can be demonstrated. Mitigation success will be measured in terms of whether the objectives of the mitigation can be realized. The success criteria to be included in permit conditions will specify the minimum requirements necessary to attain a determination of success. The mitigation shall be deemed successful when all applicable water quality standards are met, the mitigation area has achieved viable and sustainable ecological and hydrological functions and the specific success criteria contained in the permit are met. If success is not achieved within the time frame specified within the permit, remedial measures shall be required. Monitoring and maintenance requirements shall remain in effect until success is achieved.

(J)

Permitted uses in wetlands. The uses identified below shall be permitted within tidal or non-tidal wetlands denoted on a duly approved site plan; however, all physical improvement must have been included in the approved site plan submitted pursuant to chapter 168 of the town's Land Development Code, regardless of the zoning district. In addition, the application shall demonstrate compliance with applicable federal, state and local regulations. Zoning district provisions shall govern permitted uses on converted uplands denoted on a duly approved site plan, including receipt of required permit approvals by other agencies having jurisdiction over wetland issues. These federal, state and local approvals must be granted before any site work begins:

(1)

Passive recreation;

(2)

Elevated boardwalks (non-covered) used to reach duly approved boat docks within the Indian River Lagoon or its tributaries, provided that such boardwalks shall not be wider than four feet;

(3)

Open space;

(4)

Restricted access ways for essential public service;

(5)

Bird sanctuary; and

(6)

Accessory uses to the above.

(K)

Conditional uses. Any development having a potential impact on wetlands shall require conditional use approval, including compliance with conditional use criteria stated herein. Conditional use review procedures shall be the same as for site plan review. A proposed conditional use must demonstrate compliance with the following conditional use criteria which shall be applied by the town to determine whether a proposed conditional use is suitable for the site and whether it is appropriately designed to avoid potential land use incompatibility as well as potential adverse impacts. The criteria shall be used to achieve smooth transition in land use including density, intensity, appearance, size, height, mass and design amenities. The intent is to ensure that conditional uses shall only be permitted on specific sites where the proposed use may be adequately accommodated without generating adverse impacts on properties and land uses within the immediate vicinity. The use must be compatible with the character of the surrounding area. The specific site shall have sufficient land area to accommodate the proposed type of use including its scale, mass, density and/or intensity, as well as requisite project amenities, infrastructure, parking and internal vehicular and pedestrian circulation; provide adequate screening and buffering; and avoid or successfully mitigate adverse environmental conditions, nuisance impacts and other adverse impacts. A proposed conditional use shall only be considered if a site plan is submitted and is demonstrated to comply with site plan review criteria established in chapter 168 of the town's Land Development Code, "Development Review Procedures," as with chapter 166 of the town's Land Development Code, "Subdivisions," if subdivision of land is proposed. All conditional uses shall be reviewed based on criteria established herein and within respective zoning districts. The use must be found to comply with the following:

(1)

Traffic generation and access. Traffic generation and access for the proposed use shall not adversely impact adjoining properties and the general public safety and shall meet concurrency management level of service standards;

(2)

Off-street parking, loading and service areas. Off-street parking, loading and service areas shall meet zoning district standards and shall be landscaped and buffered based on standards of the town's Land Development Code;

(3)

Required yards, screening or buffering and landscaping. Required yards, screening or buffering and landscaping shall be consistent with the district regulations, and the town shall reserve the right to require more restrictive buffers and landscaping to mitigate potential adverse impacts. If the town determines that buffers and landscaping cannot mitigate the potential adverse impacts, the conditional use shall be denied;

(4)

Architecture and signage. The character of architectural and signage improvements shall have a unified theme and shall incorporate decorative features and harmonious colors and scale;

(5)

Size, location or number of conditional uses. Size, location or number of conditional uses in an area shall be limited so as to maintain the overall character of the district in which said conditional uses are located;

(6)

Factors impacting scale and intensity of conditional uses. The size and shape of the site, the proposed access and internal circulation and the urban design enhancements must be determined by the town to be adequate to accommodate the proposed scale and intensity of conditional use requested. The site shall be of sufficient size to accommodate urban design amenities such as screening, buffers, landscaping, open space, off-street parking, efficient internal traffic circulation, infrastructure and similar site plan improvements needed to mitigate potential adverse impacts of the proposed use including its design, mass, height and scale;

(7)

Avoid adverse impacts to adjacent land uses. The applicant shall demonstrate that the conditional use shall incorporate mitigative techniques needed to prevent adverse impacts to adjacent land uses and public facilities;

(8)

Compatibility. Development proposed as a conditional use shall be reviewed for land use compatibility based on compliance with zoning district regulations, including size and dimension regulations impacting setbacks, lot coverage, height, building mass, lot and/or building coverage and open space criteria. Land use compatibility also shall be measured by design attributes such as screening and buffering; lot layout and orientation of structures; architectural features such as facade elevations, facade landscaping, fenestration, building articulation, pedestrian access and circulation; internal vehicular circulation together with access and egress to the site, and off-street parking; as well as possible required mitigative measures such as additional landscaping, buffering and other site design amenities deemed necessary by the town to avoid land use incompatibility or negative impacts; and

(9)

Outdoor lighting spill-over regulated. Outdoor lighting shall have no spillover onto adjacent property or rights-of-way beyond the building site property line and the lumens shall not exceed two-foot candles at the property line. Buildings over three stories shall submit a lighting plan indicating all outdoor lighting, including lighting for streets, access drives, parking lots, building access points and additional security lighting. The plan shall indicate fixture heights, type and rating by wattage or lumens. The plan shall include characteristics of all lighting whether freestanding or wall mounted, type of illumination, vendor specifications, method of shielding light and light source, photometric plan and measures of illumination with contours indicating light source at the property lines and ten feet into adjoining properties, including rights-of-way. Lighting specifications for all signage shall be submitted and shall be compatible with land uses in the immediate vicinity.

(Ord. No. 522, § 1, 6-16-16)