§ 931.07. Exemptions.

(1)

The following activities or land uses shall be exempt from the regulated area prohibition set forth in section 931.05(1).

(a)

Exemption for public potable water facilities. Public potable water facilities shall be exempt regarding the routine operation and maintenance of potable water systems. This exemption does not apply to land uses involving the maintenance and refueling of vehicles or the storage of regulated substances.

(b)

Exemption for continuous transit and deliveries. The transportation of any regulated substance through regulated areas, provided the regulated substances are not being stored, handled, produced, or used within the regulated area in violation of this chapter, and the delivery of regulated substances to nonresidential land uses that have received development approval (as defined in Chapter 901) prior to the effective date of this chapter, provided that these land uses require such substances for the continued operation and maintenance of the land uses as approved.

(c)

Exemption for vehicular fuel and lubricant use. The use in a vehicle of any regulated substance, solely as operating fuel in that vehicle or as lubricant in that vehicle.

(d)

Exemption for application of pesticides, herbicides, fungicides, and rodenticides. The application of those regulated substances used as pesticides, herbicides, fungicides, and rodenticides in recreation, agriculture, pest control, and aquatic weed control activities provided that:

1.

In all regulated areas the application is in strict conformity with the use requirement as set forth in the EPA registries for substances and as indicated on the containers in which the substances are sold; and

2.

In all regulated areas the application is in strict conformity with the requirements as set forth in chapters 5E-2 and 5E-9, Florida Administrative Code. This exemption applies only to the application of pesticides, herbicides, fungicides, and rodenticides.

(e)

Exemption for the use of fertilizers containing any form of nitrogen. The use of fertilizers containing any form of nitrogen provided that:

1.

For nonresidential recreational areas, including private golf courses, the application of nitrogen containing materials shall be in accordance with manufacturer's directions or recommendations of the Indian River County Agricultural Extension Agent, provided, however, the amount of fertilizer applied shall not exceed forty (40) pounds of nitrogen per acre per month average for the total area or two (2) pounds per thousand (1,000) square feet per month for any localized area within the activity. Notwithstanding, the amount of applied fertilizer shall not exceed two hundred (200) pounds of nitrogen per acre per year;

2.

For agricultural areas, the application of nitrogen-containing materials shall be in accordance with manufacturer's directions or recommendations of the Indian River County Agricultural Extension Agent;

3.

For nonresidential landscape areas, the application of nitrogen-containing materials shall be in accordance with manufacturer's directions or recommendations of the Indian River County Agricultural Extension Agent on areas of ten thousand (10,000) square feet or less.

(f)

Exemptions for existing retail sale and wholesale activities. Retail sale and wholesale establishments in regulated areas provided that the establishments only store and handle regulated substances for resale in their original unopened containers.

(g)

Exemptions for office uses. Regulated substances for the maintenance and cleaning of office buildings and regulated substances associated with office equipment such as copiers or blueprint machines shall not be allowed on-site in quantities greater than the quantities exempted in section 931.07(2).

(h)

Exemptions for approved nonresidential activities. The following nonresidential activities are exempted:

1.

Nonresidential land uses existing as of the effective date of this chapter which have received site plan, subdivision or similar development approval and building permits;

2.

Nonresidential land uses existing as of the effective date of this chapter which have received occupational licenses, or similar forms of annual development approval and which do not require site plan, subdivision, or similar development approval and building permits. For the purposes of this exemption, renewal of annual development approval shall also be exempt, provided, however, that there are no expansions, modifications or alterations that would increase the storage, handling, production, or use of the regulated substances.

(2)

Only those nonresidential land uses which store, handle, produce, or use the following quantities of regulated substances shall be exempt from the regulated prohibition set out in section 931.05(1).

(a)

Whenever the aggregate sum of all quantities of any one regulated substance for any one nonresidential activity at a given facility/building or property at any one time does not exceed six (6) gallons where said substance is a liquid, or twenty-five (25) pounds where said substance is a solid.

(b)

Whenever the aggregate sum of all regulated substances for any one nonresidential activity at one facility/building or property at any one time does not exceed one hundred (100) gallons if said substances are liquids, or five hundred (500) pounds if said substances are solids, and the aggregate sum of all quantities of any one regulated substance does not exceed the reference limits in section 931.07(2)(a). Any facility or building which stores, handles, produces, or uses more than one hundred (100) gallons of liquid regulated substance or five hundred (500) pounds of solid regulated substance shall be designed to prevent contamination of wellfields in case of accidents, ruptures, or leaks.

(c)

Where regulated substances are dissolved in or mixed with other non-regulated substances, only the actual quantity of the regulated substance present shall be used to determine compliance with the provisions of this ordinance. The actual quantity of the regulated substance present shall be the total quantity of the original unopened container(s) regardless of concentration or purity.

(3)

Special exemptions.

(a)

Request for exemption. Any person subject to the prohibitions set out in section 931.05(1) may apply to the community development director for a special exemption.

(b)

Information and fee required. The application for special exemption shall include, at a minimum, payment of an application fee and provision of the following information on a form provided by the community development department:

1.

A concise statement detailing the circumstances which the applicant feels demonstrate the need for a special exemption;

2.

A description of the mechanisms that will be utilized to meet the criteria required for issuance of the exemption as set out in section 931.07(3)(e) below;

3.

A written verification by a qualified Florida professional engineer or Florida certified hydrogeologist that the proposed use or activity will not result in adverse impacts, to the protected wellfield potable water supply; and

4.

An agreement to indemnify and hold Indian River County harmless from any and all claims, liabilities, causes of action, or damages arising out of the issuance of the special exemption. The county shall provide reasonable notice to the exemptee of any such claims.

(c)

Review by the community development department, department of utility services, and county environmental health department.

1.

Within fifteen (15) working days of receipt of an application for special exception, the community development director or designee shall inform the applicant in writing whether such application contains sufficient information for a proper determination to be made. If the application is found to be insufficient, the community development director shall provide to the applicant a written statement by certified mail or hand delivery requesting the additional information required. The applicant shall inform the community development director or his designee within ten (10) working days of the date of the written statement of his or her intent to either furnish the information or have the application processed as it stands.

2.

Prior to notifying the applicant (as referenced above), the community development director or his designee shall request the following from the county environmental health department and/or department of utility services:

a.

Written comments regarding the sufficiency of the application; and

b.

A written recommendation for issuance with applicable conditions or denial;

3.

The county environmental health department and/or department of utility services shall make appropriate surveys, tests and inspections of property, facilities, equipment and processes proposed or operating under the provisions of this section to determine compliance with the provisions of this section. At a minimum, a written inspection report from the county environmental health department and/or department of utility services to the community development director shall be required prior to the issuance of a certificate of occupancy.

(d)

Issuance or denial. At the end of said ten (10) day period or receipt of the additional information, the community development director or his designee shall within fifteen (15) working days inform the applicant whether the special exception has been granted or denied. If the community development director denies the application, the community development director or his designee shall provide the applicant with a written notice outlining the reasons that the permit was denied.

(e)

Criteria for issuance. The community development director shall grant an exemption if the person applying for the exemption demonstrates that adequate technology exists to isolate the facility or land use from the potable water supply within the zone of protection wherein the proposed facility or land use would be located. At a minimum, the following issues shall be addressed:

1.

Substance inventory;

2.

Containment;

3.

Emergency collection devices;

4.

Emergency plan;

5.

Daily monitoring;

6.

Equipment maintenance;

7.

Reporting of spills;

8.

Potable water well monitoring;

9.

Groundwater monitoring;

10.

Alterations/expansions;

11.

Reconstruction after catastrophe (fire, vandalism, flood, explosion, collapse, wind, war or other); and

12.

Others, as applicable to groundwater protection.

All costs associated with providing protective measures as referenced above shall be borne by the applicant or exemptee, as applicable.

(f)

Revocation or revision. Any special exemption granted by the community development director pursuant to this chapter shall be subject to revocation or revision by the community development director for violation of any condition of said special exemption after issuance of a written notice of intent to revoke or revise (certified mail return receipt requested or hand delivery). The applicant shall have the right to a hearing before the environmental control hearing board prior to revocation or revision in accordance with the procedures set out in section 902.03. Upon revocation or revision, the activity will immediately be subject to the enforcement provisions of this ordinance.

(g)

Appeals. Any final action by the community development director may be appealed to the board of county commissioners pursuant to the appeal procedure in Chapter 902, Administrative Mechanisms.

(h)

Other agency requirements. Any special exemption granted by the community development director pursuant to this ordinance shall not relieve the exemptee of the obligation to comply with any other applicable federal, state, regional, or local regulation, rule, ordinance or requirement. Nor shall said exemption relieve any exemptee of any liability for violation of such regulations, rules, ordinances or requirements.

(i)

New regulations. Upon adoption of any amendment to this chapter or any regulation that supersedes this chapter, the special exemption shall be subject to the newly adopted regulations.

(Ord. No. 90-16, § 1, 9-11-90)