City of Melbourne City Hall 900 E. Strawbridge Avenue, Melbourne, FL (321) Fax (321)

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1 City of Melbourne City Hall 900 E. Strawbridge Avenue, Melbourne, FL (321) Fax (321) SPECIAL WORKSHOP MEETING December 11, :30 PM 1. Roll Call 2. Public Comments 3. Discussion of live aboard, derelict and abandoned vessel issues. 4. Adjournment Mayor Kathy Meehan, Vice Mayor Debbie Thomas, and Council Member Tim Thomas, as members of the Airport Authority Board, may discuss Airport Authority issues, which may subsequently be addressed by the Airport Authority. Mayor Meehan and Council Members Paul Alfrey, Yvonne Minus and Mark LaRusso (alternate), as members of the Space Coast Transportation Planning Organization (SCTPO), may discuss SCTPO issues, which may subsequently be addressed by the SCTPO. Pursuant to , Florida Statutes, the City hereby advises the public that if a person decides to appeal any decision made by the City Council with respect to any matter considered at its meeting or hearing, he will need a record of the proceedings, and that for such purpose, affected persons may need to insure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. This notice does not constitute consent by the City for the introduction or admission into evidence of otherwise inadmissible or irrelevant evidence, nor does it authorize challenges or appeals not otherwise allowed by law. In accordance with the Americans with Disabilities Act and Section , Florida Statutes, persons with disabilities needing special accommodation to participate in this meeting should contact the City Clerk s Office (321/ ) at least 48 hours prior to the meeting. Page 1 of 1

2 Melbourne City Council December 11, 2018 City Manager s Item Report DEPARTMENT: Reading No. N/A City Manager's Office Public Hearing No Quasi-judicial Item (Disclosure Required) No COUNCIL DISTRICT: N/A Item No. A.3. SUBJECT: Discussion of live-aboard, derelict and abandoned vessel issues. BACKGROUND/CONSIDERATION: Multiple departments, including the City Attorney's Office, City Manager's Office, police department, code compliance division and community development, have been working to address issues associated with live-aboard, derelict, and abandoned vessels in the city. The City Council requested a workshop meeting on this topic in advance of legislative priorities being transmitted to the Brevard Legislative Delegation. Since there is more information to provide to City Council than there will be time to present at the workshop, more detailed information has been included for Council s review. The agenda package contains: a PowerPoint presentation consisting of historic and current information and data; a memorandum from the City Attorney s Office outlining the issues associated with dumping and anchoring, including a review of current law and possible legislative fixes; and a memorandum from the City Attorney's Office addressing state law and City Code. City staff will be prepared at the workshop meeting to review the issues for Council's consideration and to seek guidance on any requested changes in state law and City Code. FISCAL/BUDGET IMPACT: REQUESTED ACTION: Request City Council provide direction on any requested changes in state law and City Code. Page 2 Item No. 3.

3 Melbourne Derelict Vessels and Marinas Discussion December 11, 2018 Page 3 Item No. 3.

4 What does City Code say about Marinas? City Code Definition: A place for docking pleasure boats or providing services to pleasure boats and the occupants thereof, including servicing and repair to boats, sale of fuel and supplies, and provision of food, beverages, and entertainment as accessory uses. A yacht club shall be considered as a marina, but a hotel, motel, or similar use, where docking of boats and provision of services thereto, is incidental to other activities shall not be considered a marina, nor boat docks accessory to a multiple dwelling where no boat-related services are rendered. Page 4 Item No. 3.

5 A marina is not: This is a marine facility, which is accessory to a residential home. Page 5 Item No. 3.

6 Marina Use Standards (Appendix B, Article VI, Section 2(L) (L) Marinas. Allowed on sites abutting a waterfront, provided that piers, wharfs, and other structures projecting into public waters beyond the mean waterline: 1) Shall have no superstructure, building, equipment, or facility located or maintained on any pier or wharf over five feet in height above such pier or wharf. 2) Shall not be constructed to interfere with the riparian rights of other property owners. 3) Dock must be at least 30 feet from the edge of any established channel. 4) No major repairs are permitted at dockside. Minor maintenance at dockside will be left to the discretion of the management and limited to normal working hours. 5) Sanitary sewer pumping stations must be provided. 6) No watercraft may be used for dwelling purposes. Page 6 Item No. 3.

7 Recent Zoning Interpretation Watercraft Used for dwelling purposes. City Code changed in 2005, which eliminated the allowance for dwelling on watercraft in commercial zoning districts Here s where it applies Residential v Commercial Page 7 Item No. 3.

8 Zoning Districts where Marinas are allowed: -All marinas require a conditional use approval with site plan. Residential Zoning: R-2 R-3 R-4 Commercial Zoning: C-1 C-2 C-3 C-P Page 8 Item No. 3.

9 Existing Marinas Anchorage Yacht Basin Intracoastal Marina Eau Gallie Yacht Basin Waterline Marina Melbourne Yacht Club Melbourne Harbor Marina The Boat Dock Marina Contella/Cordell property Steve Cordell SFR property Page 9 Item No. 3.

10 Anchorage Yacht Basin 96 East Eau Gallie Boulevard Zoning: C-C-2 Conditional Use for Marina? YES (Ordinance ) Watercraft allowed for dwelling purposes? -Allowed as existing, non-conforming. Page 10 Item No. 3.

11 Eau Gallie Yacht Basin 587 Young Street Zoning: C-2 (Future Land Use is Low Density Residential) Conditional Use for Marina? NO (allowed per Inconsistent Use IU ) Watercraft allowed for dwelling purposes? -Allowed as existing, non-conforming. Page 11 Item No. 3.

12 Waterline Marina 911 North Harbor City Boulevard Zoning: C-R-3 (17) Conditional Use for Marina? YES (Ordinances and ) Watercraft allowed for dwelling purposes? -NO Page 12 Item No. 3.

13 Zoning: C-3 Melbourne Yacht Club 1202 East River Drive Conditional Use for Marina? NO (Ordinance Property rezoned from C-R-3 to C-3 in 2009) Watercraft allowed for dwelling purposes? -NO Page 13 Item No. 3.

14 Melbourne Harbor Marina 2200 Front Street Zoning: I-1 and C-2 Conditional Use for Marina? NO Watercraft allowed for dwelling purposes? -Allowed as existing, non-conforming. Page 14 Item No. 3.

15 Intracoastal Marina 705/707 South Harbor City Boulevard Zoning: C-C-2 Conditional Use for Marina? YES (Ordinance ) -Redeveloped marina requires a new CU/SP Watercraft allowed for dwelling purposes? -Allowed as existing, nonconforming. Page 15 Item No. 3.

16 Zoning: C-2 The Boat Dock 1101 North Harbor City Boulevard Conditional Use for Marina? NO Watercraft allowed for dwelling purposes? -Allowed as existing, nonconforming. Page 16 Item No. 3.

17 Zoning: R-3 Contella/Cordell property 969 North Harbor City Boulevard Conditional Use for Marina? NO. -not permitted/approved as a marina. Watercraft allowed for dwelling purposes? -NO. Page 17 Item No. 3.

18 Zoning: R-3 Cordell single-family residential property 973 North Harbor City Boulevard Conditional Use for Marina? NO. -not permitted/approved as a marina. Watercraft allowed for dwelling purposes? -NO Page 18 Item No. 3.

19 Enforcement Melbourne PD As of 12/5/2018: Citations: 117 Warnings: 11 No Anchor Lights: 89 No means of propulsion: 3 No registration numbers: 1 Marine Sanitation Device valve not properly secured: 2 No toilet when required: 3 Page 19 Item No. 3.

20 Enforcement Melbourne PD (continued) As of 12/5/2018: No fishing license: 1 Expired Registration: 2 Equipment Violation: 2 Taking on water/no means of dewatering: 1 Page 20 Item No. 3.

21 Vessels in Ballard Park Page 21 Item No. 3.

22 Sunken Vessel Update Page 22 Item No. 3.

23 Using Facilities at Ballard Park Page 23 Item No. 3.

24 Enforcement Code Enforcement The Boat Dock (1101 North Harbor City Boulevard) Current Status: 1. Marina is considered non-conforming allowing boats to be utilized for living purposes. 2. Waste from boats have not been substantiated and there is located on site an approved working sanitation pumping station and disposal system. 3. Unregistered and derelict boats as well as other code violations were part of a Code Board Hearing case on 11/14/ Code Board set compliance date for 03/05/19 Page 24 Item No. 3.

25 Enforcement Code Enforcement (continued) Waterline Marina(869 North Harbor City Boulevard) Current Status: 1. Marina has not had substantiated residential living violations as determined by length of stay. 2. Waste from boats have not been substantiated and there is located on site an approved working sanitation pumping station and disposal system. 3. Unregistered and derelict boats as well as other code violations are pending future Code Board Hearing. 4. Remaining violations may be addressed through current review of possible site development. Page 25 Item No. 3.

26 Enforcement Code Enforcement (continued) Contella/Cordell property (969 North Harbor City Boulevard) Current Status: 1. Marina has not had substantiated residential living violations as determined by length of stay. 2. Waste from boats have not been substantiated and there is located on site an approved working sanitation pumping station and disposal system. 3. Unregistered and derelict boats as well as other code violations are pending future Code Board Hearing. 4. Remaining violations may be addressed through current review of possible site development. Page 26 Item No. 3.

27 Questions and Answers Page 27 Item No. 3.

28 MEMORANDUM TO: FROM: Mayor and Council Suzanne N. Crockett, Assistant City Attorney THROUGH: Alison L. Dawley, City Attorney RE: Vessel issues and proposed legislative changes DATE: December 6, 2018 Vessel Issues: Dumping and Anchoring 1. What can the City of Melbourne do to enforce existing state law that forbids vessels from dumping raw sewage from their Type III marine sanitation devices into the waters of the City? 2. What can the City of Melbourne do to prevent boats from anchoring for extended periods of time in waters adjacent to waterfront homes? Issue 1: Dumping (a) F.S (4)(a) states that Raw sewage shall not be discharged from any vessel, including houseboats, or any floating structure in Florida waters. The operator of any vessel which is plumbed so that a toilet may be flushed directly into the water or so that a holding tank may be emptied into the water shall, while the vessel is on the waters of the state, set the valve or other mechanism directing the sewage so as to prevent direct discharge and lock or otherwise secure the valve so as to prevent resetting. Very difficult to enforce this law: 1. Sheer number of vessels: In 2017, DHSMV records indicate that there were 100,475 pleasure boats (not commercial boats) 26 feet or more in length that were registered in the State of Florida. Unable to tell how many of those vessels have an enclosed cabin with berthing facilities which would require a toilet/marine sanitation device, or how many of those vessels were on the water (not on trailers or in dry storage). 2. Inability to detect when raw sewage is discharged from a vessel due to the location of the valve through which toilets are flushed or holding tanks are emptied valves are on or near the bottom of the vessel s hull, below the waterline. 1 Page 28 Item No. 3.

29 (b) Without an effective means of monitoring unlawful vessel sewage discharges, can we prevent or reduce such discharges from happening in the first place by enacting regulations requiring vessel owners to provide proof of proper sewage disposal by means of an approved sewage pumpout service, approved sewage pumpout facility, or approved waste reception facility? Possible legislative fixes: 1. Current law ( (4)(c), Fla. Stat.) allows local governments to establish such regulations for live-aboard vessels, floating structures and commercial vessels (except commercial fishing vessels) anywhere within their jurisdictions. The problem is that most occupied vessels do not fit within the statutory definition of live-aboard vessels, floating structures, or commercial vessels because the vessels are capable of navigating or not used for commercial purposes. 2. Current law ( (4)(a), Fla. Stat.) allows local governments to establish such regulations for non-live-aboard vessels only when vessels required to have marine sanitation devices are anchored or moored for more than 10 consecutive days in marked mooring fields or no discharge zones. (i) Modify the definition of live-aboard vessel to capture occupied vessels capable of navigating as follows: Live-aboard vessel: 1. Live-aboard vessel means : (a) A vessel used solely as a residence and not for navigation, to wit: (i) its occupants eat, sleep and engage in activities of daily life on the vessel; and (ii) its effective means of propulsion is not engaged and used to transport a person or property through the waters of the city while steered and/or controlled by a person on the vessel for a period of 10 or more consecutive days; or (b) A vessel for which a declaration of domicile has been filed pursuant to s ; or (c) A vessel used as a residence that does not have an effective means of propulsion for safe navigation. 2. A commercial fishing vessel is expressly excluded from the term live-aboard vessel. 2 Page 29 Item No. 3.

30 (ii) Modify (4) to eliminate the area restrictions, and allow local governments to establish pumpout regulations for all occupied vessels anchored or moored anywhere in their jurisdictions for more than 10 consecutive days as follows: (4)(a) A local government may enact and enforce regulations that require owners or operators of vessels or floating structures subject to the marine sanitation requirements of s to provide proof of proper sewage disposal by means of an approved sewage pumpout service, approved sewage pumpout facility, or approved waste reception facility when anchored or moored for more than 10 consecutive days anywhere in its jurisdictional boundaries.within the following areas: 1. Marked boundaries of a permitted mooring field under the jurisdiction of the local government; 2. No-discharge zones as published in Volume 53, No. 13 of the Federal Register, page 1678 (1988); Volume 64, No. 164 of the Federal Register, pages (1999); and Volume 67, No. 98 of the Federal Register, pages (2002); or 3. No-discharge zones established pursuant to 40 C.F.R. s (b) Before a local government may adopt an ordinance to enact and enforce such regulations, the local government must ensure that there are approved sewage pumpout services, approved sewage pumpout facilities, or approved waste reception facilities available within its jurisdiction. Any ordinance adopted pursuant to this subsection may not take effect until reviewed and approved as consistent with this subsection by the commission. (c) This subsection does not prohibit a local government from enacting or enforcing such sewage pumpout requirements for live-aboard vessels, floating structures, and commercial vessels, excluding commercial fishing vessels, within any areas of its jurisdiction. Such regulations do not require review and approval by the commission. (d) The commission may adopt rules to implement this subsection. (iii) Make no changes to (4), Fla. Stat., and instead apply for designation as a no discharge zone in accordance with the federal law, 33 U.S.C. 1322(f)(3) or (f)(4)(a). This application will require the State of Florida to determine that the protection and enhancement of the quality of the waters in the state (specifically, Brevard County or the City of Melbourne) require greater environmental protection and prohibit the discharge of sewage from vessels in the area. Then, the EPA must determine, upon application by the State of Florida, the protection and enhancement of 3 Page 30 Item No. 3.

31 the specified waters requires sewage discharges from vessels to be prohibited. If approved by the EPA, the EPA will publish the determination in the federal register. Further research is necessary to determine whether such a federal designation is available where the State of Florida Department of Environmental Protection has already permitted governmental discharges into the subject waters of the state. Importantly, creating a no discharge zone could have significant and costly unintended consequences to our treated stormwater and treated wastewater discharge into the Indian River Lagoon. (iv) Adopt a new state law mandating that all marinas or marine facilities require, as a condition of dockage, that every vessel required to have a marine sanitation device under state law is in fact equipped with the required device in good operating condition, and set so that sewage flows into the sanitation device, as follows: Owners and operators of marinas to ensure compliance with marine sanitation laws and maintain sewage pumpout stations and records of use.-- (1) Every owner or operator of a marina or marine facility shall, as a condition of dockage, require every vessel docked, moored or berthed within the marina or marine facility that is required to have a marine sanitation device in fact has a functioning marine sanitation device that complies with state law. All such marinas and marine facilities shall require that any vessel with a marine sanitation device having a valve that allows the toilet or holding tank to flush directly into the water be set to direct the sewage into the holding tank and be locked so as to prevent resetting while the vessel is docked, moored or berthed within the marina. (2) All marinas and marine facilities having live-aboard vessels shall provide pump-out stations or direct sewage pump-out connections for all live-aboard vessels docked, moored or berthed within the marina or marine facility. All such marinas and marine facilities with live-aboards shall establish and enforce a schedule for the pumping of sewage holding tanks for every live-aboard vessel docked, moored or berthed within the marina. Issue 2: Anchoring (a) Current law ( (2)(f), Fla. Stat.) prohibits local governments from adopting or enforcing anchoring limitations for any vessels outside of marked mooring fields, except vessels that qualify as live-aboard vessels or commercial vessels (but not 4 Page 31 Item No. 3.

32 commercial fishing vessels). Section (3), Fla. Stat. specifically allows local governments to prohibit or restrict the anchoring or mooring of live-aboard vessels, commercial vessels (but not commercial fishing vessels) and any vessels within marked mooring fields. (b) Current law ( , Fla. Stat.) establishes specific anchoring limitation areas in which anchoring is prohibited after sunset and before sunrise. These anchoring limitation areas appear to be justified by the legislature based upon their locations within densely populated urban areas which have narrow state waterways, residential docking facilities, and significant recreational boating traffic. Possible legislative fixes: (i) If the definition of live-aboard vessels in (22), Fla. Stat., is modified as set forth above to capture occupied vessels capable of navigating but anchored or moored without navigating for 10 consecutive days, then the City s current prohibition of live-aboard vessels in Sec would effectively place a 9-day time limit for anchoring occupied vessels in the waters of the City. On the 10 th day of anchoring, the vessel becomes a prohibited live-aboard vessel in violation of the Code and subject to enforcement as an ordinance violation. (ii) Modify to add and include the Eau Gallie River Basin or any other particular waterbody in the City that could qualify as an anchoring limitation area. This may require evidence demonstrating that the subject area(s) is/are in densely populated urban areas which have narrow state waterways, residential docking facilities and significant recreational boating traffic. (iii) Adopt a new state law that establishes a set-back, within which anchoring is limited, from private property along the shoreline of waters of the State. Currently, there is no such restriction on State waters, and boaters are allowed to anchor in State waters where it is convenient and inexpensive, with no restrictions whatsoever on the length of time to anchor. Managing expectations based on past inaction by the Florida legislature: It is important to realize that the Florida legislature has ROUTINELY avoided the subject of regulating the anchoring of vessels. It is not known whether this avoidance is due to perceived conflicts with the federal law of admiralty, or difficulty in devising enforceable regulations, or pressure from the boating industry. 5 Page 32 Item No. 3.

33 MEMORANDUM TO: FROM: RE: Alison Dawley, City Attorney Suzanne N. Crockett, Assistant City Attorney Live-Aboard, Derelict, and Abandoned Vessels DATE: August 13, 2018 This memorandum is intended to address the numerous complaints and comments of citizens owning land adjacent to the Eau Gallie Harbor regarding live-aboard, derelict, and abandoned vessels in the harbor. As further explained herein, the 2017 amendments to Chapter 327 of the Florida Statutes clarified what the legislature intends by the phrase live-aboard vessel. The information in the charts below is fully explained in the remainder of this memorandum. These charts briefly summarize how the state laws and City ordinances apply to live-aboard vessels at anchor and secured to docks and marinas. Vessels at Anchor: Occupied Vessels No limit to anchoring UNLESS: It is a live-aboard vessel It is anchored in a prohibited area It is derelict or at risk of becoming derelict Unoccupied Vessels No limit to anchoring UNLESS: It is anchored in a prohibited area It is derelict or at risk of becoming derelict It is abandoned Vessels Secured to Docks or Marinas: Occupied Vessels No limit to time at dock/marina UNLESS: It is used for dwelling purposes at a commercial marina It is used as living quarters at a private dock or marine facility It is used for living, sleeping or housekeeping purposes It is a houseboat used as a dwelling at a private dock or moored to a beach Unoccupied Vessels No limit to time at dock/marina UNLESS: It is abandoned at a public dock It is derelict or at risk of becoming derelict and docked without the consent of the owner of the property I. Vessels At Anchor City of Melbourne cannot place a time limit for anchoring any boat, except for live-board vessels and commercial vessels. 1 Page 33 Item No. 3.

34 While the City previously had an ordinance that limited anchoring of ALL vessels to 72 hours, that ordinance had to be repealed because the Florida Legislature made it illegal for counties and municipalities to regulate the anchoring of ALL vessels in However, the 2006 Legislature expressly provided that counties and municipalities could regulate the anchoring of live-aboard vessels and floating structures. Because the City s old ordinance regulated the anchoring of ALL vessels, it was repealed. The City s repeal of the 72-hour anchoring ordinance, however, had nothing to do with the City s existing ban on live-aboard vessels. The City s ban on live-aboard vessels has always been preserved, and it currently exists in Sec of the Code of Ordinances. The problem appears to be in understanding what a live-aboard vessel is and what it is not. Not every vessel being used as a residence is a live-aboard vessel, because live-aboard vessel has a very specific meaning under the statutes. Under previous law, the City had to determine not only whether the anchored vessel was being used as a residence, but also whether that vessel was in navigation or not in navigation based solely on the intent of the vessel occupant in order to apply the law correctly. The 2017 amendments to Chapter 327 provide a more precise standard for applying the law regarding live-aboard vessels. Part A. Occupied Vessels at Anchor Any vessel having people living on it can remain anchored in the City indefinitely, UNLESS: 1. it is a live-aboard vessel; or 2. it is anchored in a prohibited area; or 3. it is a derelict vessel or at risk of becoming derelict Section 1. Live-Aboard Vessel: As stated previously, not every vessel being used as a residence is a live-aboard vessel, because live-aboard vessel has a very specific meaning under the statutes. The definition was changed in 2017, with the removal of language shown in strikethrough below, and the addition of new language shown in underline below: Live-aboard vessel means: (a) A vessel used solely as a residence and not for navigation; (b) A vessel represented as a place of business or a professional or other commercial enterprise; or (b)(c) A vessel for which a declaration of domicile has been filed pursuant to s ; or 2 Page 34 Item No. 3.

35 (c) A vessel used as a residence that does not have an effective means of propulsion for safe navigation. A commercial fishing vessel boat is expressly excluded from the term live-aboard vessel. The 2017 amendments also added a definition for the phrase, Effective means of propulsion for safe navigation as follows: Effective means of propulsion for safe navigation means a vessel, other than a barge, that is equipped with: (a) A functioning motor, controls, and steering system; or (b) Rigging and sails that are present and in good working order, and a functioning steering system. These changes give local governments a new, more precise standard (i.e., no effective means of propulsion) for regulating the anchoring of live-aboard vessels as permitted by (3), Fla. Stat. To summarize, there are 2 ways to determine if a vessel is a live-aboard vessel: 1. A declaration of domicile has been filed pursuant to OR 2. The vessel is: Used as a residence AND Not used for navigation OR lacks an effective means of propulsion for safe navigation It s very easy to tell when a declaration of domicile has been filed and when a vessel is being used as residence. It is extremely difficult, however, to tell when a vessel is not used for navigation. The legislature lightened that burden in 2017 with the addition of the definition, A vessel used as a residence that does not have an effective means of propulsion for safe navigation. This new definition gives our law enforcement officers an objective standard for determining when a vessel is a live-aboard vessel. Put simply, if an anchored vessel is being used as a residence and it has no functioning motor, controls and steering system, or it has no rigging and sails that are present and in good working order and a functioning steering system, then the vessel is a prohibited live-aboard vessel and can be cited for a violation of Sec , Melbourne City Code. However, if an anchored vessel is being used as a residence and it HAS the effective means of propulsion described above, it is not a live-aboard vessel subject to the City s ban, unless it is being used as a residence and not for navigation. 3 Page 35 Item No. 3.

36 Proving that a vessel is not used for navigation is extremely difficult. Historically, the federal courts 1 have held that a vessel is not in navigation when the vessel is incapable of being used for maritime transport, meaning the vessel s physical characteristics must have been altered to the point where its use for waterborne transportation is practically impossible. For example: where a portion of a vessel s hull is removed and vessel is permanently connected to the river bottom, or where the vessel is deactivated from service and mothballed, or where the vessel is withdrawn from the water for extended periods of time to facilitate repairs or reconstruction, the vessel is not a vessel in navigation. Local governments have been very wary about their liability exposure in determining when a vessel is not in navigation. That s because in 2013, the U.S. Supreme Court held the City of Riveria Beach was liable for the value of the petitioner s floating home that was disposed of by the City after the City erroneously enforced its lien as if the watercraft was a vessel in an admiralty proceeding. Lozman v. City of Riviera Beach, 133 S. Ct. 735 (2013). The Court in that case identified and applied a test requiring objective evidence of the structure s purpose in the view of a reasonable observer. Id., at Applying that same test to the vessels at anchor in Eau Gallie Harbor would probably result in concluding that they are vessels in navigation. The courts have always referred to the physical capabilities of the vessel when determining whether it is in navigation. There is no federal law and there is no state law, legislative or decisional, that has ever used a time frame for determining that an anchored vessel is not a vessel in navigation. In fact, Lozman would suggest that time spent at anchor is not relevant to that determination. Section 2. Prohibited areas: Within 150 feet of a marina or boat ramp or other launching facility, (1)(a)1 Within 300 feet of a superyacht repair facility, (1)(a)2 Within 100 feet of a mooring field, (1)(a)3 Affixed to an unpermitted object affixed to the river bottom, (4) Affixed to a uniform waterway marker, (1) Area creating a navigational hazard (under bridges, adjacent to heavily traveled channels), (2) 1 See Lozman v. City of Riviera Beach, 568 U.S. 115, 129 (2013), citing Kathriner v. UNISEA, Inc., 975 F. 2d 657 (C.A ), Roper v. United States, 368 U.S. 20 (1961), and Stewart v. Dutra Construction Co., 543 U.S. 481 (2005). 4 Page 36 Item No. 3.

37 No overnight anchoring in anchoring limitation areas (specific areas in Broward and Miami-Dade Counties, Violations are non-criminal infractions, and violators are issued a Uniform Boating Citation Section 3. Derelict Vessel or at Risk of Becoming Derelict: Derelict vessel is defined in (1)(b)1-3: A vessel left, stored or abandoned: In a wrecked, junked, or substantially dismantled condition upon any public waters of this state. At a port in this state without the consent of the agency having jurisdiction thereof Docked, grounded or beached upon the property of another without the consent of the owner of the property A violation of s is a first degree misdemeanor Vessel at risk of becoming derelict is defined in : The vessel is taking on water without an effective means to dewater; Spaces on the vessel that are designed to be enclosed are incapable being sealed off or remain open to the elements for extended periods of time. The vessel has broken loose or is in danger of breaking loose from its anchor. The vessel is left or stored aground unattended in such a state that would prevent the vessel from getting underway, is listing due to water intrusion, or is sunk or partially sunk. The vessel does not have an effective means of propulsion for safe navigation within 72 hours after receiving notice from a law enforcement officer, and no proof that that necessary parts have been ordered. BUT a vessel tied up to a private dock or wet slip with the consent of the owner for the purpose of receiving repairs is NOT a derelict vessel or at risk of becoming derelict. Violations are non-criminal infractions, and violators are issued a Uniform Boating Citation Part B. Unoccupied Vessels at Anchor Any unoccupied vessel can be stored or stay anchored in the City indefinitely, UNLESS: 1. it is anchored in a prohibited area 2. it is derelict or at risk of becoming derelict 3. it is abandoned Section 1. Prohibited Areas: 5 Page 37 Item No. 3.

38 Please refer to Part A, Section 2 above Section 2. Derelict Vessel or At Risk of Becoming Derelict: Please refer to Part A, Section 3 above Abandoned Vessel is defined in : Section 3. Abandoned vessels: All tangible personal property that does not have an identifiable owner and that has been disposed on public property in a wrecked, inoperative, or partially dismantled condition or has no apparent intrinsic value to the rightful owner, and includes derelict vessels as defined in s Failure of the owner to remove the vessel, or failure of the owner to pay the costs incurred for removal, results in the owner not being able to register any vehicle or vessel until paid. II. Vessels Secured to Docks or Marinas Part A. Occupied Vessels at Docks or Marinas The City s Zoning Code currently prohibits live-aboards in commercial marinas and private docks: Definition of Boats: Boats are included in the definition of recreational equipment. Appendix B, Article II. Commercial Marinas: The City of Melbourne prohibits marinas from allowing any boats docked therein to be used for dwelling purposes. Appendix B, Article VI, 2(L). Private Docks Accessory to Residential Uses: The City of Melbourne prohibits marine facilities (such a private docks) from being used to moor boats as living quarters, boat rental, boat repair, boat sales, associated boat supplies storage, or the rental of boat mooring spaces. Appendix B, Article VII, 2(F)(2)(b). Houseboats: The City of Melbourne prohibits houseboats secured to private docks, or other structures or beaches abutting residential or commercial lots from being used as a dwelling. 6 Page 38 Item No. 3.

39 The City s Land Development Code and its incorporated International Property Maintenance Code prohibit: junked and inoperable vessels on real property in the City. Appendix D, Chapter 13, Article III, Sec parking of untagged, unregistered, and inoperable vessels. Appendix D, Chapter 9, Article V, Sec. 9.74(p)6 recreational equipment (boats) from being used for living, sleeping or housekeeping purposes. Appendix D, Chapter 9, Article V, Sec. 9.74(p)7 Part B. Unoccupied Vessels at Docks or Marinas Any unoccupied vessel can remain stored or secured at a dock or marina UNLESS: 1. It is abandoned at a public dock 2. It is derelict or at risk of becoming derelict when moored to the dock or property of another without the consent of the owner of the property Section 1. Abandoned at Public Dock: (5) allows local governments to adopt ordinances and regulations for the removal of abandoned vessels at public docks in accordance with Section 2. Derelict or At Risk of Becoming Derelict: prohibits vessels at risk of becoming derelict from mooring except when moored to a private dock with the consent of the owner for the purpose of receiving repairs prohibits derelict vessels from being docked at the property of another without the consent of the owner of the property. III. Marine Sanitation Section establishes the marine sanitation requirements that apply to both anchored vessels and vessels secured to docks or marinas, regardless of whether the vessels are occupied. To summarize: (1) Requires that all vessels 26 feet or more in length having an enclosed cabin with berthing (sleeping) facilities have a toilet. Permanently installed toilets have to be connected to an appropriate marine sanitation device (2) Requires that all houseboats be equipped with a permanently installed toilet connected to a Type III marine sanitation device (holding tank) with the valve set and locked to direct all sewage to the holding tank. 7 Page 39 Item No. 3.

40 327.53(3) Requires all floating structures having an enclosed living space with berthing facilities be equipped with a permanently installed toilet connected to a Type III marine sanitation device or permanently attached via plumbing to shoreside sewage disposal. Cannot be plumbed to allow discharge of sewage into waters of the state (4) Prohibits dumping of raw sewage into the waters of the state (5) Mandates compliance by vessel owners and occupants with Coast Guard requirements for marine sanitation devices and with EPA regulations regarding discharge of sewage (6) Violations are a non-criminal offense, violators are issued a Uniform Boating Citation (7) Any vessel or structure in violation is a nuisance and a hazard to public safety and health. A violator must correct the violation within 30 days, or remove the vessel from the water. If not corrected or removed, law enforcement should apply to the courts for removal of the vessel at the owner s expense. These marine sanitation requirements are enforced through marine sanitation inspections conducted in accordance with Section (2017) In addition to regulating or prohibiting the anchoring or mooring of live-aboard vessels, the 2017 amendments to section , Fla. Stat., allow local governments to adopt ordinances under certain circumstances concerning marine sanitation. Those new provisions are: (4)(a) states that IF the City has a mooring field or a federally designated No Discharge Zone the City could adopt ordinances that require the owners or operators of vessels having marine sanitation devices (holding tanks) to provide proof of proper sewage disposal when anchored or moored for more than 10 consecutive days in the mooring field or No Discharge Zone. However, the City of Melbourne has no mooring field or No Discharge Zone (4)(c) states that the City could adopt ordinances for sewage pumpout requirements for live-aboard vessels, floating structures, and commercial vessels within any areas of its jurisdiction. IV. Enforcement of Derelict and Abandoned Vessel Laws The Florida Fish and Wildlife Conservation Commission and local governments are authorized to rectify the accumulation of derelict and abandoned vessels in the waterways of the State. 8 Page 40 Item No. 3.

41 Both (2) and (2) make it unlawful for a person, firm, or corporation to store, leave, or abandon any derelict vessel in this state. Both of those statutes also authorize the FWC and any law enforcement agency or officer specified in s to relocate, remove or cause to be relocated or removed any derelict vessel in the public waters of the state that obstructs or threatens to obstruct navigation or constitutes a danger to the environment, property or persons. Under these statutes, the FWC has been charged with developing and implementing a derelict vessel removal program in order to provide direction to FWC officers and other regarding the identification, documentation, and investigation of derelict vessels; to devise appropriate methods to ensure the rights of owners of derelict vessels and other responsible parties are not violated; and to facilitate the removal and destruction of derelict vessels from the public waters of the state. The FWC s program outlines the process to be followed in investigating, documenting, photographing and noticing owners of derelict vessels. The FWC has developed step by step procedures to be followed when: the owner is present when the vessel is determined to be derelict; the owner is not present but can be identified and is available to meet in person with the FWC officer; the owner is not present but can be identified but is not available to meet in person with the FWC officer; and the owner cannot be located or identified at any time throughout the investigation. Those procedures include specific forms and delivery methods for the completed Derelict Vessel Notification Letter, Derelict Vessel Notification of Rights Packet, and affixing the Derelict Vessel Notice Sticker. With respect to the Notification of Rights Packet, the FWC has prepared an explanation of the vessel owners rights to dispute the determination that the vessel is derelict, a form indicating the vessel owner s election of rights, and a proposed petition for an administrative hearing pursuant to section (2)(c), Fla. Stat. The procedures also identify the steps to be followed after the determination that the vessel is derelict, including entries into the Statewide Derelict Vessel Database, service of the Derelict Vessel Removal Authorization Letter to the county or municipality where the vessel is located, funding for the removal by the contractor, and seeking repayment of same from the vessel owner. At this time, it appears that FWC is the appropriate entity for initiating removal of derelict vessels in the City of Melbourne. The City is authorized to adopt its own derelict vessel removal program that substantially follows the program developed by FWC. 9 Page 41 Item No. 3.

42 Page 42 Item No. 3.

43 Page 43 Item No. 3.

44 Page 44 Item No. 3.