MINUTES OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS

BREVARD COUNTY, FLORIDA

 

 

March 6, 2008

 

 

 

The Board of County Commissioners of Brevard County, Florida, met in regular session on March 6, 2008, at 4:30 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida.  Present were: Chairman Truman Scarborough, Commissioners Chuck Nelson, Helen Voltz, Mary Bolin, and Jackie Colon, County Manager Peggy Busacca, and Assistant County Attorney Morris Richardson. 

 

 

 

Chairman Scarborough stated the need to read into the record, due to technical difficulties, that the Board of County Commissioners will meet for the purpose of discussing settlement negotiation and strategy related to litigation expenditures on LaCourt v. Brevard County; present at the meeting will be Chairman Scarborough, Commissioners Chuck Nelson, Helen Voltz, Mary Bolin, and Jackie Colon, County Manager Peggy Busacca, County Attorney Scott Knox, Assistant County Attorney Morris Richardson, and Brevard Associated Court Services, Inc.’s representative Dana Keenan; the attorney-client private session will be held in the County Manager’s Conference Room, Third Floor, Building C, at the Brevard County Government Operations Center, 2725 Judge Fran Jamieson Way, Viera, Florida, 32940; and is estimated to last one hour or less.

 

The meeting recessed at 4:35 p.m. and reconvened at 5:00 p.m.  

 

 

The Invocation was given by Elder Pastor Roger Wilson, Tabernacle Church of Melbourne.

 

 

Chairman Truman Scarborough led the assembly in the Pledge of Allegiance.

 

 

County Manager Peggy Busacca stated John Denninghoff has received some information from DRMP to share with the Board.  Chairman Scarborough stated to advise why it is being discussed.  Transportation Engineering Director John Denninghoff stated at the regular Board meeting on Tuesday with respect to the Viera DRI, the Board directed staff to obtain a scope of services from the consultant who has been working with staff with respect to the transportation aspects of the DRI application and the transmittal for the Comprehensive Plan Amendment.  He stated he had received two scopes, one for a complete analysis and generation of an independently generated traffic model for the Viera DRI and an alternative plan which would be to continue the review aspect of the Viera DRI application, which would continue services through the entire DRI process as foreseen at this point and time. He stated the one service is substantially greater than the other; the Full Viera DRI Analysis is the more complete scope at

just under $300,000; and the more review aspect of the scope is $134,000.  Commissioner Nelson inquired if there is a need to make a decision this evening.  Mr. Denninghoff responded the process does not have a timeline associated with it and nothing has to be prepared at this particular point in time. He stated if the Board decides to approve the full analysis, it will take a substantially larger amount of time and would need to start fairly quickly.  Commissioner Bolin stated it is a large sum and this is very intense as far as how much the County needs them to get involved and at what level; and inquired when is the next time the Board will meet to make a decision. Ms. Busacca responded March 18^th. Commissioner Bolin stated she would like to have it brought back on March 18^th for a final decision.  Mr. Denninghoff advised it was just received that morning and Bob Kamm and Steve Swanke made some preliminary comments to it, which was forwarded to the consultant, but he had not received a response back; and it may drive the cost up more. Chairman Scarborough stated Tuesday the Board heard the Viera DRI and the Board had its own independent consultants; they had limited scope of service; and the Board found it needed to hire its own consultants so it could have adequate information.  He stated the question becomes to what extent they would be impacting the larger Brevard County with traffic overloads, and to the extent the developer does not pay but the public pays in deterioration of the roads.  Commissioner Voltz stated this is a lot of money; and inquired what is the possibility of going forward from here on with County’s staff.  Mr. Denninghoff responded he did not feel staff would be able to do the full analysis in the time commitment needed; stated staff could undertake a lot of the review activities but looking at it from a return perspective, the County got its dollars worth from the consultants.  Commissioner Voltz stated she would rather wait until March 18^th after having an opportunity to talk.  Commissioner Nelson stated Task One is a review of the Brevard Mall and the other is a mini calibration so it is digging deeper into those numbers than the other, and that is probably one of the most important tasks associated  with it; if it were a time consideration then he would be willing to go ahead with the more detailed Task One, which would commit the Board to the $40,000 because that could start and then bring the remainder back after reviewing the rest of the contract to have a chance to discuss further; and he would like to see Task One done in more detail.  Mr. Denninghoff responded that he suspects Commissioner Nelson is correct and he is not sure at this point whether the consultant has it structured in such a way that if broken out separately one may interrelate with another, but he can find out.  Commissioner Voltz stated they divided up the dollars worth so they would have them.  Mr. Denninghoff stated that is correct but he needs to verify when it is broken apart whether any of the dollars change because there are some things that relate to one another.  Commissioner Bolin inquired if that is one of the first things staff would do with Task One as far as preceding forward; and is there a timeline.  Mr. Denninghoff responded it is not a linear timeline; there are some parallel functions that do take place; and he will find out the answer to that.  Commissioner Bolin stated she had worked with DRMP and staff; to hire DRMP is essential; she would not proceed further with the DRI without them, and if approval is needed tonight then she would make a motion for Task One for that amount of money if there is a time element.  Chairman Scarborough stated he would come back to her if that is something the Board can do conditionally, and if it is practical the Board could come back and take that motion with that caveat.  Commissioner Colon stated when the Board approved this on Tuesday and she voted in opposition it was because she was concerned that it was an emergency on the developers end and the Board should never feel that kind of pressure. She inquired how many public hearings have to happen before it actually goes to Tallahassee; stated the Board already approved the transmittal of the DRI; so it is critical for the Board to know the dates because a lot of it has to happen before it goes to the State.  Mr. Denninghoff stated the next public hearing minimum timeframe would be two months; in the DRI circumstance that two-month timeframe really is not there; that is a normal transmittal process; but in this circumstance the Statute does not have that timeframe associated with it, however, the applicant can push that timeline faster.  Ms. Busacca stated it is going to Tallahassee, so when the Board said to send it to transmittal that meant staff would get the paperwork together; and the next timeline is related to the Department of Community Affairs and the time in which they have to provide comments back to the Board.  Commissioner Colon inquired when the Board approved this on Tuesday and when was it transmitted.  Ms. Busacca stated it will take a week or so to get the paperwork together; the next timeframe in this process is the Department of Community Affairs; they have a certain number of days to review it, send back, and then the Board puts together a response; but because this is a DRI those timeframes that the County is normally accustomed to on a Comprehensive Plan Amendment are suspended.  Commissioner Colon stated when the Board approved this on Tuesday, one of the concerns she had was there is no turning back; the Board is allowing them to transmit this, but yet there are certain concerns; and the burden is in the transportation system, affordable housing, and environmental issues.  She stated when the State receives this, first impression is everything, and she would have preferred the letter would have had strong objections regarding to the regional impact from a DRI with thousands of homes that are going to be built; but instead the transmittal was approved and it was sent and now is going to go through the process.  Chairman Scarborough stated that was not what he voted on, and if that is what he voted on he is going to reverse himself because he voted on sending it to the State.  Mr. Denninghoff stated the actual language has not been worked out; he did speak with Scott Knox and Steve Swanke and he believes Mr. Swanke is writing that over the weekend; and the concern was how to express what the Board voted on and the serious level of its concern.  Chairman Scarborough stated if there is any question on this before it is transmitted he is going to call an emergency meeting to readdress the issue before it is transmitted; and he expressed to Ms. Busacca that he does not want it transmitted if there is any question that it is not clearly stated as objection because that is why he voted that way.  Ms. Busacca responded the motion will be very clear.  Chairman Scarborough stated he does not want staff to alter what he had voted for because Commissioner Colon is making a point that needs to be listened to.  Ms. Busacca stated she agreed.  Mr. Denninghoff stated Mr. Knox indicated he is going to attach the transcript of the Board discussion, so DCA would have word-for-word of the discussion that had taken place.  Chairman Scarborough stated he thought the Board was transmitting under objection.  Mr. Denninghoff stated Mr. Knox indicated it would be very clear.  Commissioner Nelson stated this level of detail is not required; the Board is just trying to make sure there is much detail as possible; and this is part of the Development Order Review Process, not part of the transmittal of the Comprehensive Plan Amendment.  Chairman Scarborough stated it will be a profound mistake if the Board transmits something where it has objections; it could be lack of information or things the Board disagrees with without stating it clearly that the Board is transmitting, but this is something it will not approve if it does not like it. 

 

Planning and Zoning Comprehensive Planner Sherry Williams stated the State has 60 days to review and provide comments back on the transmittal that is sent to them for the Viera DRI; and normally under the Comprehensive Plan Amendments, the local government would have 60 days in which to adopt or not adopt the proposed amendments.  Chairman Scarborough stated he understands that but inquired if it is transmitted, and stated the Board objects rather than having the technical data for the Board’s objection, would that not benefit the DCA’s review. 

 

Ms. Busacca stated she believes that DCA is going to send this to the Department of Transportation and expect them to do the majority of the road review. Mr. Denninghoff advised it is a 90 to 120 day item in Task One, which is the collaboration of the model; so if the Board would like the DRMP information it will certainly not make it within the 60 day deadline established by Statute for the review.  Commissioner Bolin stated in regards to Chairman Scarborough’s suggestion she concurs that after the Board looks at this, and the wording is complete for the transmittal, the Board has a special meeting to look at it and make sure the wording is where the Board wants it.  Ms. Busacca stated the Chairman will be asked to sign the transmittal letter.  Commissioner Voltz stated DRMP is going to be addressing transportation and not the housing or wetland issues; inquired what will the Board do if it is only paying DRMP the $300,000 for the transportation; and who will address the other.  Ms. Busacca stated it was her understanding the Board was going to have a different set of eyes to review the same thing that staff had already looked at; staff was going to continue to work with the interest groups and the Viera Company on those other issues; and inquired if the Board would like to come to a conclusion on those issues before the Department of Community Affairs and other reviewing agencies have had the opportunity, because when this goes out to DCA  it is then transmitted to the Water Management District and other review agencies.  Chairman Scarborough inquired if the transmittal letter that he is supposed to sign will be on the 18^th agenda.  Ms. Busacca responded affirmatively.  Chairman Scarborough stated by then the Board will have discussion with the consultants.  Commissioner Voltz stated transportation is the biggest issue, because the people who travel the roads are the ones that suffer the most; and she thinks spending whatever is needed to do this is prudent on the Boards part. Chairman Scarborough stated he wants a good product, because saving $10,000 could cost $20 million in the long run.  Mr. Denninghoff stated he agreed and the consultant has done an excellent job up to this point; and he expects that to continue.  

 

 

Commissioner Voltz stated she attended the Melbourne/Palm Bay Chamber breakfast;  Commissioner Colon’s daughter Jasmine won the Student of the Month Award; and she congratulated Jasmine and Commissioner Colon.

 

 

Commissioner Colon stated folks are always talking about separation of church and State; if it was not for the faith her family has and the fact that God, country, and family come first, they would not be able to do it; and that was instilled to the Colon kids.  She stated Jasmine did the speech all on her own, and she is extremely proud of her and her faith.  She stated her son was in a Championship Basketball game in West Melbourne and he said he prayed so he was ready.  She stated a family that prays together stays together.

 

  

 

Chairman Scarborough stated he had sent out a resolution he was going to present, but he was advised from Washington that this is being actively discussed at NASA. He advised the issue, for the folks in the audience, is alternative means to the International Space Station in lieu of the Shuttle; the Board was going to take a position; but he was advised it would be appropriate to defer anything on this because the conversation is very dynamic in Washington at this time.

 

 

Zoning Manager Rick Enos stated Item VI.B.8. is requested to be tabled to the April 3, 2008 Board of County Commissioners meeting.

 

Chairman Scarborough called for a public hearing to consider item to be tabled, as follows:

 

VI.B.8. (Z0801103) G & D DEVELOPERS, L.C.’s request for a Small Scale Plan Amendment (08S.03) to change the Future Land Use designation from Res. 1 and Res. 2 to Res. 4, and a change from AU to EU on 7.434 acres, located on the east side of U.S. 1, approximately 0.17 mile south of Cidco Road, which was recommended to be tabled to the March 10, 2008 Planning and Zoning meeting.

 

Motion by Commissioner Voltz, seconded by Commissioner Bolin, to table Item VI.B.8. to the April 3, 2008 Board of County Commissioners meeting.  Motion carried and ordered unanimously.  

Chairman Scarborough called for a public hearing to consider tabled items of December 6, 2007, February 7, 2008, and February 21, 2008, as follows:

VI.A.3. (Z0801104) D & E HARDWARE COMPANY’s request for a change from BU-1 to BU-2 on 2.75 acres located on the northwest corner of Roberts Street and U.S.1, which was recommended for approval by the Planning and Zoning Board.

 

There being no objections heard, motion was made by Commissioner Voltz, seconded by Commissioner Bolin, to approve Item VI.A.3., with amended Binding Development Plan, as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

Chairman Scarborough called for the public hearing to consider recommendations of the Planning and Zoning Board of February 11, 2008, as follows:

VI.B.1. (Z0802101) ARLENE B. CHEW & REBECCA JEFFERS’s request for a change from AU and RU-1-9 to RU-2-4 and a CUP for a Bed and Breakfast Inn on 2.89 acres located on the north side of La Grange Road, west of U.S.1, which was recommended for approval by the Planning and Zoning Board.

 

There being no objection heard, motion was made by Commissioner Voltz, seconded by Commissioner Nelson, to approve Item VI.B.1. as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

VI.B.2. (Z0802201) RONALD C. & LOIS D. DIXON, CO-TRUSTEES’s request for a Small Scale Plan Amendment (08S.4) to change the Future Land Use Designation from NC to CC; and a change from RU-1-9 to BU-2 on 0.53 acre located on the west side of Lois Lane, south of Lake Drive, which was recommended for approval by the Planning and Zoning Board.

 

Commissioner Nelson inquired what kind of storage it is; with Ronald Dixon responding open.

 

There being no objection heard, motion was made by Commissioner Nelson, seconded by Commissioner Voltz, to approve Item VI.B.2. with amended Binding Development Plan as recommended for approval by the Planning and Zoning Board; and to adopt an Ordinance amending Article III, Chapter 62, of the Code of Ordinances of Brevard County, entitled “The 1988 Comprehensive Plan”, setting forth the Fourth Small Scale Plan Amendment of 2008, 08S.4, to the Future Land Use Map of the Comprehensive Plan; amending Section 62-501, Part XVI (E), entitled the Future Land Use Map Appendix; and provisions which require amendment to maintain internal consistency with these amendments; providing legal status; providing a severability clause; and providing an effective date. Motion carried and ordered unanimously. 

 

 

VI.B.3. (Z0802202) CRESCENT BEACH VENTURES, LLC’s request for a change from RU-2-15 to BU-2, with removal of an existing Binding Development Plan on 1.96 acres located on both sides of Orlando Avenue, north of 20^th Street, which was recommended for approval by the Planning and Zoning Board.

 

There being no objections heard, motion was made by Commissioner Nelson, seconded by Commissioner Voltz, to approve Item VI.B.3. by the Planning and Zoning Board. Motion carried and ordered unanimously.

 

VI.B.5. (Z0802301) 5685 A1A, LLC.’s request a CUP for Substantial Expansion of Preexisting Use in an SR zoning classification on 0.12 acre located on the east side of Highway A1A south of Hidden Cove Drive, which was recommended for approval by the Planning and Zoning Board.

 

Motion by Commissioner Voltz, Seconded by Commissioner Nelson, to approve Item VI.B.5. as recommended by the Planning and Zoning Board. 

 

 

VI.B.6 (Z0802501) RICHARD D. & LAURA L. BLAIR’s request for a change from GU to RU-1-7 on 0.25 acre located on the north side of Lindholm Place, west of Thompson Road, which was recommended for approval by the Planning and Zoning Board.

 

Motion by Commissioner Colon, seconded by Commissioner Bolin, to approve Item VI.B.6. as recommended by the Planning and Zoning Board.

 

 

VI.B.9. (Z0801301) WILLIAM C. LAMMERS’ request for a CUP for a Guest House in an RU-1-11 classification on 0.67 acre located on the west side of Highway A1A, south of Burdis Road, which was recommended for approval by the Planning and Zoning Board.

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to approve Item VI.B.9. as recommended by the Planning and Zoning Board.

 

VI.C.1. Section 12, Township 25, Range 36, Parcel 757, on 1.33 acres, located on the east side of Courtenay Parkway, south of Elliott Drive, owned by Michael C. and Nancy M. Moss, currently zoned RU-1-13 (Single Family Residential), and proposed to change to EU (Estate Use Residential), which was recommended for approval by the Planning and Zoning Board.

 

Motion by Commissioner Nelson, seconded by Commissioner Bolin, to approve Item VI.C.1. as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

VI.C.2. Section 12, Township 25, Range 36, Parcel 764, on 1.45 acres, located on the east side of Courtenay Parkway, south of Elliot Drive, owned by Michael C. and Nancy M. Moss, currently zoned RU-1-13 (Single Family Residential), and proposed to change to EU (Estate Use Residential), which was recommended for approval by the Planning and Zoning Board.

 

Motion by Commissioner Nelson, seconded by Commissioner Bolin, to approve Item VI.C.2. as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

 

 

VI.C.3. Section 12, Township 25, Range 36, Parcel 762, on 1.21 acres, located on the east side of Courtenay Parkway, due east of Elliott Drive, owned by Danny F. (Jr.) and Mary W. Farley, currently zoned RU-1-13 (Single Family Residential), and proposed to change to EU (Estate Use Residential), which was recommended for approval by the Planning and Zoning Board.

 

Motion by Commissioner Nelson, seconded by Commissioner Bolin, to approve Item VI.C.3. as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

VI.C.4. Section 12, Township 25, Range 36, Parcel 763, on 0.95 acre, located on the east side of Courtenay Parkway, south of Elliott Drive, owned by Thomas L. and Judith B. Sisserson, currently zoned RU-1-13 (Single Family Residential), and proposed to change to EU (Estate Use Residential), which was recommended for approval by the Planning and Zoning Board.

 

Motion by Commissioner Nelson, seconded by Commissioner Bolin, to approve Item VI.C.4. as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

 

 

VI.C.5. Section 12, Township 25, Range 36, Parcel 763, on 9.2 acres, located on the east side of Courtenay Parkway, north of Elliott Drive, owned by Pulte Homes Corporation, currently zoned RU-1-13 (Single Family Residential) and EU (Estate Use Residential), and proposed change to All EU (Estate Use Residential), which was recommended for approval by the Planning and Zoning Board.

 

Motion by Commissioner Nelson, seconded by Commissioner Bolin, to approve Item VI.C.5. as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

 

Chairman Scarborough stated Assistant County Attorney Morris Richardson is going to give a legal perspective regarding the proceedings.

 

Mr. Richardson advised the Board acts as a Quasi Judicial body when it hears requests for rezoning and conditional use permits; applicants must provide competent and substantial evidence establishing facts or expert witnessed opinion testimony showing that the request meets the Zoning Code and Comprehensive Plan criteria; and opponents must also testify as to facts or provide expert testimony whether he or she likes or dislikes a request as it is not considered competent evidence. He stated the Board must then decide whether the evidence demonstrates consistency and compatibility with the Comprehensive Plan and the existing rules in the Zoning Ordinance, property adjacent to the property to be rezoned, and the actual development of the surrounding area; the Board cannot consider speculation, non-expert opinion testimony, or poll the audience by asking those in favor or opposed to stand up or raise his or her hands; and each applicant is allowed a total of fifteen minutes to present a request unless the time is extended by majority vote of the Board. He stated the applicant may reserve any portion of the fifteen minutes for rebuttal; other speakers are allowed five minutes to speak; and speakers may not pass his or her time to someone else in order to give that person more time to speak.

 

Chairman Scarborough explained the reason the Board has this read into the record is because it had an Executive Session before the meeting, the Board made a decision, and the courts stated what it had done it could not do because the Board did not have sufficient information before it, so the Board does a disservice not only to the process but to the public when the Board does not take the time to make sure that what is required in Quasi Judicial decision making process is what takes place.  He stated if anyone has any questions or if the Board is getting off line, they will try and guide it back so what is said is relevant and worth the time to be at the meeting.  He stated the applicant will come up first and is allowed fifteen minutes; the applicant may divide that fifteen minutes between the initial part and coming back for rebuttal; and he has a couple staff members in the audience dealing with the issue of golf courses and he would like before the applicant come back up for rebuttal, since they are not testifying for or against, have them make their comments and allow that to be part of the record so the applicant can have that opportunity to question or inquire.    

 

 

 

VI.A.1. (Z0711101) LAHINCH LAND PARTNERS, LLC’S request for a change from AU to RU-2-4 on 8.94 acres located on the north side of London Town Road, west of Carpenter Road, which was recommended for approval by the Planning and Zoning Board.

 

Lahinch Land Partners, LLC.’s owner Jonathan Kamin stated he would like to reserve seven minutes for rebuttal based on the number of cards the Board received, and he distributed some papers to the Board.  He shared some history with the Board; in July 2005 an affiliate company purchased a number of properties located in the Sherwood area of Mims, included in part of the properties was the Eagle Point subdivision and various development parcels, one of them being used at the time as a driving range for the Sherwood Golf Course.  He stated as part of the purchase and assignment part of the contract, they assigned their interest in the Golf Course to a trust which purchased the Golf Course but they retained the driving range for development; the driving range has a Future Land Use classification under the County’s Ordinance of fifteen units to the acre; and they had came in with a Binding Development Plan to have it at ten unit     to the acre with a maximum of seventy-five units.  He stated the Board of County Commissioners denied them in December 2005; and they took an appeal of that action to the Special Magistrate; and he returned it back to the County Commission for further action; at the time it came back, the Mims Small Area Study had begun, and they were asked to wait for that study to be completed; the study came back at four-units per acre as the recommended Future Land Use Designation; and they agreed to amend the application to four-units per acre even though the Sherwood Area is being removed from the Mims Small Area Study.  He stated they had met with the residents on numerous occasions, offered to sell the golf course or lease it to the homeowners association, and it appears no deal can be struck.  He stated they allowed the driving range to be rented at a dollar per year while going through this process and entered into a settlement agreement with the golf course and terminated the use of the property as a driving range at the end of November 2007.  He further stated he has done everything asked of them, including allowing the community to use it for a number of years; and at this point, as the Planning and Zoning Board recommended on a seven to two approval, they would like their application of RA-2-4 to be approved for rezoning of the property.  He presented the zoning map that showed what was surrounding the property and pictures of London Town Road, Condominium property to the east, Sherwood Clubhouse to the south zoned A-2, to the west is the back of the condominiums, and PUD Development, which is basically duplexes.  He stated they submitted a traffic study to the Board, which shows there is no significant increase in traffic; he directed the Board to its staff’s report that shows traffic volume will not significantly increase; and he asked the Board to rely on facts and what is before them to make the determination that is right. He advised whether it is AU or RA-2-4 that the property is getting developed. 

 

Kim Rezanka with the Law Firm of Dean, Mead advised she was there on behalf of The Sherwood Area Homeowners’ Inc. and individually for Gale Akins and Howard “Bob” Brenneman.  She advised the Association is a voluntary non-profit association under Chapter 617, currently it has 230 paid members; it is provided for in their deed restrictions; and it is not a 720 homeowners association.  She stated the individual owner Gale Akin is within the 500 feet zone of this property as is Bob Brenneman; and both of them did receive from the County the Notice and have interest different from the community at large.  She stated their view of the community and its character is a little different; and she presented to the Board a map of the area from the Property Appraiser’s website showing where everything is located.  She advised it is a residential golf course community and the road into it is a two-lane sub-standard road with no shoulders or lines on it which dead ends; and is the main road for most of the community.  She stated the Nottingham Manor Condominium, which is on the 230 Future Land Use Map, was built in 1971; it is out of scale with the area; but at the time was probably meant to be a buffer between the residents and Highway I-95.  She stated it is four buildings with a much lower market value than the single-family homes in the area; and advised Appraiser Bob Leichtenberg will go into more detail with that next.  She stated there is a PUD, and to the west currently is vacant, to the west further is single-family homes on .35 acre to .5 acre, and to the south of the London Town is all single-family homes built since 1992.  She stated the Board will hear about the character of the area from the residents; those are facts; and she requested that the Board listen to them because they have been there a long time. She stated it is a golf course with a driving range that has been there for 34 years; the lease to the homeowners was much more than a dollar per year, it was over $30,000 a year; and the residents want to maintain this area and its character, which is a legitimate zoning purpose.  She advised the AU in this area is historical; there will be safety issues with the extra 333 trips and the townhomes will be close to hole 17 and hole 18, which will have golf cart and pedestrian traffic.  She stated looking at the Future Land Use policies that she provided to the Board, Administrative Policy 3 Criteria A, is safety; Policy C, the existing pattern of surrounding development to the south is approximately two-units to the acre; to the west of the PUD is approximately two-units to the acre; the historical land use patterns of this property subject to being rezoned is Open Space Recreational use; and the Administrative Policy 4, is the character of the neighborhood.  She stated the goals, objectives, and policies of Future Land Use, objective one, is the quality of life to the citizens.  She advised the Administrative Policy, Criteria B, states whether the proposed use would cause a material reduction of 5% or more in the value of the existing abutting lands or approved development. She asked the Board to consider Robert Leichtenberg with Hanson Appraisal Services to be an expert; asked that the Board listen to the residents as to the character and compatibility of this proposed rezoning; and requested the Board deny this request to rezone by Lahinch Land Partners.

 

Robert Leichtenberg stated he owns and operates Hanson Appraisal Service; he is an MAI Appraiser and State Certified Appraiser; he appraised golf courses over the years including this one twenty years ago; and he kept current with the trends in golf courses.   He stated this rezoning would result in a loss of value because it will change the character of the neighborhood; he broke it down in three different areas, including buffers being very important between high density and multi-family; and he explained the last thing Brevard County needs is a supply of more units to be sold.  He stated the driving range is lost now but not forever; if it is not developed it can be reestablished because when you lose a driving range in a golf course it is very significant as its the first step on a slippery slope of failing.   He expressed concern that the loss of the driving range could result in the closure, of the course which happened in Palm Bay; and he stated developers do not put driving ranges in golf course communities because they want to give away extra housing lots, they do it because it is vital.  He stated his professional opinion is if the property is rezoned the property of all the homes in the Sherwood area will devalue. 

 

Commissioner Voltz inquired if there were more than one owner for the Palm Bay Golf Course.  Mr. Leichtenberg stated he believes there was just one owner.  Chairman Scarborough inquired what Ms. Rezanka had referred to with Administrative Policy 3 and the last sentence reading, “compatibility shall be evaluated by considering the following factors at a minimum, whether the proposed uses would cause a material reduction of 5% or more in the value of the existing abutting lands or approved developments;” and inquired if Mr. Leichtenberg could testify that it would be more than 5%.  Mr. Leichtenberg responded yes.  Chairman Scarborough inquired to how much more.  Mr. Leichtenberg responded abutting would be at least 15% to 20%. Commissioner Voltz inquired to any hard facts on what the property value decrease is on the other golf community that lost their driving range.  Mr. Leichtenberg responded a $40,000 to $50,000 decrease.  Commissioner Bolin inquired to how long it has not been an active driving range.   Mr. Leichtenberg responded that Mr. Kamin had stated just a few minutes ago that it was November of last year.  Commissioner Nelson inquired if it is never used as a driving range again, how is the viability of the golf course.  Mr. Leichtenberg responded he did not know.  Commissioner Bolin stated she did not see any protection to keep golf balls from hitting homes or any other signs to show her it was a golfing range. Mr. Leichtenberg advised a net was needed because the homes were so far away.  Commissioner Colon stated when going down this direction a Pandora’s Box is opened and the complete community will be devastated.

 

Tony Damoff stated he is a resident of Sherwood Estates for twenty-one years and on the Board of Directors for the Sherwood Homeowners Association.  He stated the traffic assessment was done for Carpenter Road and not for London Town Road; and the study was based on sixty units on the golf course and did not take in to account Eagle Pointe that is platted and other developments which access through London Town Road.  He advised that lifetime memberships to the golf course and related facilities have been sold that give members and children a lifetime easement right to use the land for golf and other recreational purposes, costing over $10,000; the agreement specifies that it is binding on all future owners and operators of the property; it states membership is in the Bent Oak Golf Club or its successors in interest if ownership, management, or name should change and the easement shall run with the land and be binding on all future owners of said property and all future operators of said property; and the property included in the agreement is referenced by its legal description in Official Records Book 3080, parcel D6, which includes the eastern parcel of the land in this rezoning request as it is specifically covered under the lifetime memberships.  He stated the agreement grants members privileges and interest in the property and over the property for the purposes of recreational use in line with activities normally conducted on said properties, golf, swimming, tennis, and activities at the club house.  He further stated development of this parcel would financially damage the life members in the form of loss of recreational benefits.  He stated the AU zoning is inconsistent with the zoning of a golf course driving range; changing the zoning is unnecessary and should be denied; a change would wrongfully signal that Lahinch Land Partners could do something they are not entitled to do, that is to develop even a portion of the driving range, if any structure or infrastructure was to be place on parcel forty-one, the area could not be used for a driving range and Lahinch Land Partners would violate the recreational use established nearly twenty years ago with the life members.   

 

Gail Akins stated she lives at the first house west of the driving range and is Vice-president of the Homeowners Association.  She stated she is also representing the President of the Homeowner’s Association who is working out of town and could not be present, so it may take her just a little longer; and requested additional time to spear. She stated the Sherwood community is a huge area that encompasses many streets on North Carpenter Road and includes areas that are not included in the Sherwood development; and there are beautiful condos at the end of London Town Road with ninety-one units that are not a part of the Association but are extremely interested in what happens with this.  She stated Mr. Leichtenberg stated the condos to the east were built in the 70’s before most of the beautiful homes were built on London Town Road; the condos in the back do not back up to them; and that is where London Town Road ends.  She stated Mr. Leichtenberg stated he was waiting on the Association but he was in litigation with the owner of the golf course for some of that time; when she is referring to Vero Pittsburgh Partners, she is also referring to Lahinch because they are the LLC that controls the driving range; Vero Pittsburgh Partners bought the Sherwood Golf Course about three years ago; and a vital part of that was the driving range which has been there for 34 years.  She stated the driving range is in a great location, located across from the club house and near the first and tenth hole.  She stated Vero Pittsburgh’s intent has been expressed publicly to develop the golf course and the driving range with single-family homes; however upon realizing that the development of the golf course would be virtually impossible due to various reasons, they sold the golf course to one of their own staff, Alan Hinckley.   She stated from the time of their purchase of the golf course and driving range, the entity never contacted the homeowners in Sherwood, nor the homeowners board to express what their hopes and plans were.   She stated it was thought as a community they were there to better the golf course and its amenities.  She stated a couple years ago the Royal Oak Golf Course in Titusville was sold to an entity which also had hopes of developing the back nine holes on that golf course; and the homeowners in that area along with the homeowners board met with the golf course owner and he backed away from his plans and today is refurbishing that golf course, driving range, its amenities, and club house to meet the needs of its community.  She stated in the afternoons during the school year high school groups practiced and learned the art of golf on the driving range.  She further explained the temperament of the neighborhood.  She stated they had to go to the community to raise funds for legal fees after hiring an attorney and because of the interest of the Sherwood residents they have been fortunate in raising enough money they hope will be sufficient to see this battle through to an equitable vote for the Sherwood residents.  She stated these entities have come into their beautiful community and are seeking to destroy people’s lives, retirement, and economy for their own profit.  She stated Lahinch has promised the driving range will never be there again but she is hoping that in the future it can be again a part of their golf course; and if the Board grant’s their request for rezoning it will be voting to down grade the quality of life in that area.

 

Bob Brenneman a Sherwood resident stated he has lived there over fifteen years and for most of that time he has been Vice-president of the Sherwood Homeowners Association.  He stated since the golf course first opened in 1964 the golf range has been there through different owners.  He stated in July 2005 Bob Holloway sold the golf course and surrounding property to Vera Pittsburgh Partners who in turn sold the course to Alan Hinckley.  He stated there are over 800 Sherwood homeowners and they are very concerned about the deterioration of the Sherwood Golf Course and the effect it is having on property values.  The golf course and driving range, until recently, was used regularly by the local high school golf team for practice lessons; and since September 6 after the County Commissioners zoning hearing, Lahinch Land Partners plowed up the subject property which has rendered it useless as a driving range.  He stated the owner, Alan Hinckley, has been placed in a very awkward position; he purchased the course at a reduced rate from Vero Pittsburgh who also holds the second mortgage on the golf course; and it is apparent Lahinch Land Partners intend to develop all available property on and surrounding subject property.  He stated the equipment maintenance building has been torn down to allow for construction for three or more houses and all of the maintenance equipment is now in his back yard.  He stated the tennis courts and concrete was removed today; and Sherwood homeowners feel this is the beginning of a pattern used by developers such as Lahinch Partners to stifle a golf course and develop the land.  He stated Sherwood residents are very sincere about Alan Hinkley to succeed with his business venture and wanting the property to remain a golf course; and he strongly recommends the request by Lahinch Land Partners from AU agriculture/residential to RA-2-4 single family attached residential be denied. 

 

Tom Hughes stated he is a Sherwood homeowner and a board member on the Sherwood Homeowners Association Board of Directors.  He stated the applicants intention is for 34 units to be built on the driving range; RA-2-4 is compatible with the abutting property; there are duplexes next to this property but these units are not compatible and distract from existing homes in Sherwood; and his point is two wrongs do not make a right.  He stated at the Planning and Zoning meeting on November 5, 2007, the Board voted seven to two to approve the rezoning.  He stated he believed they did this in good faith based on the information presented at the time.  He stated as taken from the minutes from that meeting, Evelyn Morrison inquired what is the vested interest of the people that dwell in the Sherwood area in regards to the golf course, with Mr. Evan’s responding to the extent of any individual lot owner he was not aware of any zoning or deed restriction that would give them rights to the golf course, but having searched the golf course internally it has certain legal problems concerning easements and restrictions that would stop it from being used for other uses; but he doesn’t think that someone living a mile down London Town Road has any right to the golf course legally. He advised Evelyn Morrison said in their opinion they bought into the area due to the feature of the golf course and would in no regards have any interest in the golf course; and John Evans replied not that he is aware of.  He stated Tony Danloff said there is more than 30 residents who have lifetime membership contracts that entitle them to an easement on the property for the purpose of recreation.  He stated his observation is that Lahinch has made no effort to maintain the property they bought in the Sherwood community and are not friends or neighbors. He stated it does not seem right for anyone to be able to make changes in his community that will reduce his property value and degrade his quality of life; and he asked the Board to not approve this zoning request.

 

Sharon Damoff stated the developers are trying to do something that would hurt the homeowners by lessening the property values and decreasing the quality of the neighborhood to seek a profit.  She stated the homeowners have to spend a lot of money and energy, are faced with worry and effort on top of regular lives, and the best they can hope for is just to be out that expense and not have their property values decreased.  She stated without the driving range the golf course will surely fail, and a failed golf course will start a downward spiral in the area.  She stated they objected to the driving range being built up not to other areas being developed; Lahinch should have known that the homeowners would object to losing the driving range; the County is not protecting citizens and there should be separate zoning for golf courses, private parks, and greenways; and the overall character of the neighborhood is 800 single-family homes built around a golf course.  She requested the Board of County Commissioners do all it can to protect the property values and character of the Sherwood neighborhood.  

 

Billy McQuery stated he has been highly offended by Mr. Lahinch when he referred as the condos that he bought to be the same as his home that he bought in September 1986.  He stated his concern is safety; all traffic from Sherwood Villas traveled to London Town Road; when all the areas are completed London Town Road will be used on a regular daily basis; the total units will be 276; and with this request of 35 additional units there will be 311 units using London Town Road with one entrance and exit. He requested the rezoning on the subject be denied for the safety of the people living in Sherwood. 

 

Tom Etter stated at the Planning and Zoning meeting two staff members stated they had never seen the property and are making decisions for it which he felt was not right. He stated Administrative Policy of Future Land Use Elements Administration Policy 2 has paragraphs that should be looked at, and one of them is the established character Section 62-1151 C Paragraph 3.  He stated Administration Policy 3 Criteria A was diminished; and enjoyment of the quality of life could be perceivably affected by the proposed use.  He stated he did not see any mention of water studies; and under Section 62-1151 C of the Code of Ordinances of Brevard County, paragraph 3, there should be a study.  He stated the Planning and Zoning Board relied on Mr. Evans and a Lahinch representative when asked about the animals and they stated they had not seen any, which is not correct; and he showed pictures to prove it to the Board.  He stated he is a retired realtor; on nightline it was stated that Brevard County had the biggest drop in home value in the nation of 12.4%; and is getting worst.  He requested that the subject property be kept AU; and suggested the Board plan the rest of Sherwood’s PUD with the citizens of Sherwood input to keep the density low. 

 

Barbara Dabney stated she heard at the beginning of the meeting that this is Quasi Judicial; she thought she was going to relinquish her time because she did not come to the meeting with the kind of facts that have all ready been presented; however she is moved by the destruction of her community.  Chairman Scarborough responded the reason for saying that is not to discourage speakers but so the speakers could state it in a more factual way rather than an emotional way.  Ms. Dabney thanked Commissioner Bolin for coming to Sherwood and looking at the subject property.  She stated when the maintenance building was removed; and now they have taken down the tennis courts. She expressed strongly to the Board to not make it easy on them by approving the change in zoning on the subject property.

 

Chairman Scarborough requested the golf experts from the County to come up; and the reason they are not having them speak in favor or against is because County staff does not speak in favor or against; but since this is a golf course, staff can address some of the issues that have been brought up.  He stated he is allowing the applicant to cross examine or question them without using the applicants time, and Kim will have the opportunity to cross examine staff.

 

Dennis Mackey, Manager of Golf Operations for Parks and Recreation Department and the Business Manager for the Specer Holland Habitat and Savannahs Golf Courses, introduced Greg Sanders who is a master professional PGA pro with about 25 year experience in the golf course industry, operating both private and public golf courses, and Alex Romanoff a PGA professional.  Chairman Scarborough stated he had not visited with them although it was suggested that Mr. Mackey may have some information to share.   Mr. Mackey stated it is difficult to find any empirical evidence regarding the closure of a driving range because it is pretty much contrary to the direction of the industry right now; but it is his professional opinion without a practice range in the long run it is certainly less viable as an ongoing golf operation.  He stated this particular course and all its surrounding golf course competitors have driving range.  He advised all but one in the County offer driving ranges and not one golf course in the County has been built in the last 20 years that did not include a driving range.  He further advised the direction of the industry now is the expansion of practice facilities in response to the shortage of time golfers have. 

 

Mr. Sanders stated as a 27-year member of PGA of America he would have to question very quickly on whether he would take a job at a facility without a practice range.  He further stated the heart of golf and the PGA of America push is introducing new players to the game, and that is pretty much impossible to do without a driving range. 

 

Mr. Kamin inquired if the former driving range is under a separate ownership from the golf course.  Mr. Mackey responded that is what he had heard early that evening.  Mr. Kamin inquired if the golf course were to go ahead and build its own practice facilities would it be a functioning viable operation.  Mr. Mackey responded if it does not lose its practice facility it would be as viable as it is with one now.  Mr. Kamin inquired if it had substitute or alternative practice facility would it still maintain viability.  Mr. Mackey responded that would be his opinion.  Ms. Rezanka inquired if Mr. Mackey visited the subject golf course.  Mr. Mackey responded yes.

Ms. Rezanka inquired if there is any place on the golf course for the current owner to build a practice area or another driving range.  Mr. Mackey responded he is not familiar enough with the property to speculate on it. 

 

Mr. Kamin inquired if the appraiser could come back up for questioning.  Ms. Rezanka stated he left.  Mr. Kamin stated it is hard to raise questions on his testimony now that he is gone; the testimony the appraiser offered is not creditable for several reasons, including that he did not do a report but was testifying from his notes, which is in violation of the Uniform Standard Procedure of Appraisal Practice use path; and he discussed a general number of 15% to 20% devaluation of abutting properties, which there is not any evidence presented to support that.  He stated the Boards Administrative Policy and Procedure requires taking into account the abutting properties, which he believes he did not do. He stated traffic and the other items that were heard he felt the admonition in the beginning from the Assistant County Attorney is sufficient; and while all the evidence is heartfelt, it does not arise to the appropriate standard of evidence that the Board needs to consider in its Quasi Judicial capacity. He addressed some of the points commented on by the residents, including bad roads; the staff report contradicts that it is a bad road; south of the former driving range is not all single-family; and the loss of the buffer between the condominiums on Carpenter Road will continue to exist.  He stated the owner of the PUD townhomes who is most affected by this is not present to oppose this nor is the owner of the golf course.  He stated regarding the lifetime of the easement is a legal issue that will be dealt with, and is not relevant for the discussions this evening.  He stated they resent the fact that it is being said that he is there to try and tear the community apart. 

 

Chairman Scarborough inquired if the Board has sufficient evidence to proceed with a denial of this based upon a diminishing of value in excess of five percent and a deterioration of the quality of life or if additional information should be procured by the County before proceeding.  Mr. Richardson stated sufficient evidence has been presented if the Board decides to take action and directs the County Attorney’s Office to prepare a Findings of Fact and Conclusions of Law; however, if any Commissioner has any additional questions he or she would like to pose to staff the Board would certainly have the option to close the public hearing, present those questions to staff, and ask that staff return with a report at a subsequent date.  Chairman Scarborough inquired if there is a need for the County to hire its own appraiser and note that the applicant did not bring in an appraiser to refute the challenger’s appraiser.  Mr. Richardson stated that testimony is un-rebutted on the record as of now.  Commissioner Voltz stated Mr. Leichtenberg advised there was a 12% to 15% decrease in property values in the Port Malabar area and she would like those facts and figures.  Chairman Scarborough inquired if the Board is bringing in any additional information for consideration, the Board cannot close the public hearing but leave it open so both sides can have an opportunity to refute the information and bring contrary information in.  Mr. Richardson stated that is correct.  Chairman Scarborough stated the Board can limit public comment to only to those subjects the Board wants to but it can not deny the public involvement as the Board analyzes those new facts.  Commissioner Voltz stated anytime that the Board looks at denying something it needs to make sure it has all of the facts.  Chairman Scarborough stated it is not that the Board of County Commissioners is the final deciding party if the courts over rule it.  Commissioner Voltz suggested going to the Property Appraiser’s website to see any devaluation of properties.  Ms. Rezanka stated Mr. Leichtenberg has testified before the Board as an expert, has testified that he has done this previously, and there is a substantial reduction in value here; she believes there are sufficient facts that are un-rebutted; and his expert testimony stands without facts to bolster it under the current Florida law and under that policy, it is not just abutting, it is the approved development in the area.  She stated Mr. Leichtenberg has done an appraisal for one of her clients regarding Port Malabar Country Club and has used his knowledge and experience in arriving at what he arrived at today.  Mr. Kamin stated he wanted to formerly object to the discussion of it being un-rebutted because he asked for him to stay and she asked him to stay so Mr. Kamin could cross examine him and bring out what he believes are significant defects in his testimony and he chose to leave.  Mr. Kamin has no objection to the County going out and procuring what it has to do but he objected on the record for what he believes is a denial of his right and the Board sitting as a Quasi Judicial body to test that expert’s testimony.  He stated Chairman Scarborough knows as a lawyer that is a fundamental and important right.  Chairman Scarborough stated he is not going to be the attorney but go back to Mr. Richardson after Commissioner Colon finishes her comments. 

 

Commissioner Colon stated this is nothing new to the Board of County Commissioners and when the Board gets to a point where it wants to make sure there is Findings of Facts there is no problem.  She is willing to make a motion for denial right now, and as far as making sure there are the Finding of Facts, the Assistant County Attorney has stated he is quite comfortable in regards to the testimony he has heard here.  She stated there is only certain types of testimonials that will only be allowed at the next meeting.  She inquired to Mr. Richardson what would be the proper motion to take at this point.  Mr. Richardson stated if the Board is simply going to seek a Resolution and Findings of Fact and Conclusion of Law from his office, then it would be appropriate to close the public hearing at this time so that the Board does not have to take more public testimony on it, and to direct staff to return to the Board at a future point with the Resolution, Findings of Fact, and Conclusion of Law; however, if the Board has questions or wants a staff report there is mention of a possible appraisal if the Board wants to do that; and in that case, the public hearing would remain open and the Board would simply table it to the next public hearing.  He stated based on the motion Commissioner Colon proposed, which was denial, instruct the County Attorney to prepare Findings of Fact the public hearing would be closed.   Chairman Scarborough stated what the Board is asking Mr. Richardson is if he is asked to defend the County’s action of denial this evening would he find it a burden due to the fact that the expert left before he was cross examined by the applicant.  Mr. Richardson stated the applicant asked some questions he would have liked to oppose to the expert that have to do with appraisal standards with which he is not familiar, and if the applicant had wanted to rebut the appraiser testimony the appropriate way to do that would be to put appraisal evidence contrary to that set forth by the appraisal expert.  Chairman Scarborough stated Mr. Richardson is the one who will have to go to court and the Board is perfectly willing to take a little more time to do it right.  He stated the Board can limit the public comment to just having the appraiser reappear and the Board may also wish to have an independent appraiser hired by the Board of County Commissioners to also testify to these facts because it is very disappointing when the Board thinks it has done everything right and have a court reverse it.  Mr. Richardson stated the meeting can be tabled keeping the public hearing open only as to the appraisal issue and bring back the appraiser obviously the applicant would have an opportunity to present their own contrary.  Chairman Scarborough stated if that is what the Board does he would also like to give the applicant the opportunity to bring his appraiser in and have the County hire its own appraiser. 

 

Motion by Commissioner Colon seconded by Commissioner Voltz, to table Item VI.A.1. to the May 29, 2008 Board of County Commissioners meeting; approved only the appraisal issue or anything related to value being discussed when the item comes back before the Board; approved the Board hiring its own Appraiser; approved the Applicant bringing his own Appraiser and providing the Appraisal to the Board prior to the meeting; and approved bringing Appraiser Robert Leichtenberg back to the meeting for questions from the Applicant. 

 

 

Mr. Richardson advised Mr. Enos the public hearing needed to be continued to a time certain.  Ms. Busacca suggested it not be tabled to April 3^rd because they do not know how long it will take to get an appraisal.  She suggested May 29^th, allowing plenty of time for the appraisal. 

 

Commissioner Colon restated her motion. 

 

Commissioner Nelson stated the cart path seemed to wonder onto the subject property.  Mr. Kamin stated he has entered into an agreement with the golf course conveying easements to them for anywhere where the carts path cross.  Commissioner Nelson stated he heard there was a previous financial relationship between the golf course current owner and either Vero Pitssburgh or Lahinch.  Mr. kamin stated he holds the second mortgage on the property.  Commissioner Colon inquired if there is any other relationship as employee.  Mr. Kamin responded they were never his employees, he just used Mr., Hinkley’s company as his real estate agent to purchase many properties, but it is not relevant for this discussion.  Commissioner Nelson inquired if any of the approvals for the PUD were the golf courses or any of those properties used in any of the open space calculations.  Mr. Enos stated they have not.  He further stated the PUD does not use the golf course as part of its project, it has its own separate open space.  He stated the golf course was developed under the AU zoning classification that was established at that time and has not changed.  Commissioner Nelson inquired if the property that is adjacent and has the townhomes on it was ever part of the driving range parcel.  Mr. Enos responded he could not tell if it was ever part of the driving range but not as far as the 1980’s.  Commissioner Nelson stated he supports the motion because he thinks there is still information to look at.  Chairman Scarborough inquired if the only issue for public discussion is the appraiser, do any of the Commissioners have questions to any other parts of this that he or she would like to continue on for discussion.

 

Commissioner Bolin stated the partners stated the lifetime membership was separate and not to be included in this because it was going to be a legal situation later; and inquired does that need to be verified in any way.  Mr. Richardson responded that he has not seen documents or any copy of any contracts regarding lifetime memberships and he is not certain what legal obligations those documents include.  Commissioner Bolin inquired if that was an item to also research.  Chairman Scarborough stated the Board may want to have that presented to the County Attorney’s office.  He stated this very well could be a part of the diminution of value. He explained if he has certain rights that are attached to his property that would enhance the value of his property so he is in opening the public hearing to look at any and everything that goes to value, but it has to be based upon the value issue and not to the broader issues. He stated the appraiser needs to be able to look at all component parts, including the driving range issue and the nature of the golf course community, but also to the extent of any other component parts that would effect value.  Commissioner Nelson inquired if the Board is going to approve a golf course zoning and a person has to leave the golf course to come back onto the golf course across private property is there a projected land use into another area.  Mr. Enos stated from a zoning perspective probably not because a golf course is permitted in any residential zone. Commissioner Nelson stated it is a permitted use.  He inquired if there were any standards that go with that.  Mr. Enos responded no.  Mr. Richardson stated anyone who spoke regarding the lifetime membership contracts can provide a copy to the Clerk to make part of the record to be helpful to supplement the testimony. 

 

Commissioner Colon requested that the attorneys make sure any information is provided to the opposition so they can not say they have not received any of that information.  Chairman Scarborough stated the applicant will also need to have his appraisal report provided to everyone in a timely matter.  Commissioner Colon inquired who the attorney is for the applicant.  Mr. Kamin stated he is an owner and Mr. Evans is his attorney.  Commissioner Colon inquired if his attorney will be speaking at the next meeting.  Mr. Kamin stated they all will be speaking at the next meeting.  Chairman Scarborough stated the biggest cost to everyone is if it is not done appropriately and it goes to court and it comes back granted.  Commissioner Colon stated this is the appropriate way to do this. 

 

Chairman Scarborough called for a vote on the motion. Motion carried and ordered unanimously.

 

The meeting recessed at 7:28 p.m., and reconvened at 7:46 p.m.

VI.A.2. (Z0712201) ROBERT DEAN STRANEY’s, request for a change from AU to RA-2-4 on 8.94 acres located on the north side of London Town Road, west of Carpenter Road, which was recommended for approval by the Planning and Zoning Board.

 

Commissioner Nelson stated he had been working with the applicant and feels that they are getting real close on how to approach this.

 

Motion by Commissioner Nelson, seconded by Commissioner Voltz, to table Item VI.A.2. to the May 29, 2008 Board of County Commissioners meeting.  Motion carried and ordered unanimously.

 

 

VI.B.4. (NMI80201) ANDRE BAEZ’s, request for a change from BU-1 to BU-2 on 0.357 acre, +/- located on the west side of N. Courtenay Parkway, north of Church Road, which was recommended for approval by the Planning and Zoning Board.

 

Roger Kiser, Director of Surveying and Planning for Campbell Surveying and Engineering, stated he was representing the owner Andre Baez, and Sandy Hirsch who is the possible buyer pending the outcome of the zoning hearing.  He presented a handout to the Board which he went over.  He stated the property is located approximately 535 feet north of Church Street at 5645 North Courtenay Parkway. He stated the current zoning is a BU-1 and is requesting a rezoning of the west 150 feet to a very restricted BU-2 zoning.  He explained Mr. Hirsch plans to put his contracting operation and construction office on the subject property. He is requesting the change solely for the storage of building material and building equipment.  He stated letters were sent to all the neighbors and several positive responses were returned. He stated they met with the North Merritt Island Homeowners Association and the only comment they received back was concerning the possible future use of the property; BU-2 allows for uses that no one wants in the area; they put together a Binding Development Plan that restricts the use of this property to the BU-1 that is already allowed and strictly the storage of building materials and the construction equipment; and he wants and allows no other use from the BU-2 zoning.  He stated the BDP addresses there is a ditch at the rear of the property that may contain wetlands and they will have them professionally delineated; and they will abide by all conservation easements that are required.  He stated Mr. Hirsch has agreed to put up a visual barrier around the area to be rezoned, to meet the CRG recommendations for landscaping even though he is not technically required to, and to refurbish the existing building that is there.

 

Samuel Hirsch stated he is planning to have very low impact on the community and it will hardly be noticed;  he is not intending to store a lot of materials; and he is just wanting to have a little bit of building materials and little bit of equipment.  Commissioner Nelson requested he define a little bit.  Mr. Hirsch responded a fork lift style or rubber tire hose style piece of equipment to load and unload gravel, builder sand, a few bricks, and concrete pipe.   Commissioner Bolin stated he enclosed the letters of support and inquired if there was any opposition to it that were voiced.  Mr. Hirsch responded no. 

 

John Campbell stated he is retiring and Mr. Kiser is his new Director and he just wanted the Board to know that what they are planning on doing is very low impact.  He stated they are just asking for the ability to store equipment and materials on the western 150 feet of the property.  He stated there are no plans for additional asphalt or parking.  He asked the Board to consider his request for approval.  

 

Mary Hillberg requested the Board deny this application.  She stated it was discussed at the advisory board that it was not compatible with the area that is rural and is not compatible with Administrative Policy Three or Four or the Future Land Use Element 2.14.  She stated it is more important to preserve the future area of the map that was BU-1, and the North Merritt Island Homeowners Association have made calls to that effect. 

 

Jack Ratterman, President of the North Merritt Island Homeowner’s Association, stated his interest is in the community; and the zoning issue came before the membership and the board and after it was discussed it was voted on and unanimously denied on the basis that changing this to BU-2 would set a precedent and open possibilities for others to switch form BU-1 to BU-2 which is not compatible with the surrounding rural community; and this is one of two entrances to NASA, and visitors from all over the world will get their first impression of Brevard County and Merritt Island.  He stated State Road 3 is designated as an official Indian River Lagoon Scenic Highway and this bi-way was recognized by Congress’s United States National Scenic Bi-Way Program, and the Federal Highway Administration.  He stated it is not beneficial to the rural community and surrounding area. Commissioner Nelson stated there is AU zoning to the west of the subject property and a strip of BU-1 almost the entire length of Courtney Parkway; he feels it is an obtrusive use next to the potential residential; and he is concerned it will set a precedent.

 

Motion by Commissioner Nelson, seconded by Commissioner Colon, to deny Item VI.B.4.  Motion carried and ordered unanimously.

 

VI.B.7. (Z0711502) JOHN M. GAYDEN, JR.’s,  request for a Small Scale Plan Amendment (08S.05) to change the Future Land Use designation from Res.15  to NC, and a change from RU-1-11 to RP on 0.84 acre located on the east side of Highway A!A, south of Poinsetta Street, which was recommended for denial by the Local Planning Agency and Planning and Zoning Board.  

 

Tim Williams, representing John Gayden, stated the reason for the change is so that Mr. Gayden can use a portion of his existing home as a medical office.  He stated there is a condominium across the street, one-third of a mile south is the DoubleTree Hotel, and a couple smaller hotels.  He stated to the north is a strip of residential and then commercial again.  He stated Planning and Zoning recommended against this request and they expect the Board to hold this to a bit of higher standard to show it would not have a negative impact on the surrounding area. He stated a majority of the homeowners have supported the change. He submitted letters to the Board from eight homeowners that approved the plan.  He stated the owner who did not approve had a vacant lot.  Commissioner Colon stated it is noted on the record it was received.  He stated the letter signed from the property three lots down was actually signed by a tenant and not by the owner because he was out of town. Mr. Williams stated the letters from the owners on the immediately joining properties were already introduced into evidence at the Planning and Zoning meeting.  He stated he did not believe the use of a small part of a home as a doctor’s office is going to have any effect on the traffic.  He proposed a Binding Development Plan providing that the only allowable use would be for a doctors office, limited to one doctor and one assistant and support personnel; to use a maximum of 1400 square feet of the existing residence; no expansion of the home is contemplated; the hours to be limited to Monday through Friday 9:00 a.m. to 5:00 p.m.; and the doctor who practiced would be the resident or owner of the property. He stated an attachment of the Binding Development Plan is in the packets the Board has.  He stated regarding the ingress and egress raised by Code Enforcement and Dr. Gayden is happy to widen the driveway to make sure it does not exceed DOT standards.  He stated Robert Lee of Lee Engineering is present to answer any questions the Board may have.  He stated Dr. Gayden sent out letters to his patients asking if they would support it and he received fourteen, which he submitted into the record as evidence. 

 

Robert Lee with Lee Engineering Inc. stated he was brought into the project to look to see if there were any traffic problems with the proposed use.  He described the subject property and the surrounding area.  He stated the Binding Development Agreement that was submitted through staff and received consent of both adjoining neighbors and a total of eight out of ten in his plat.  He stated he has been a resident of South Brevard and Indialantic for twenty-four years and lives four blocks away. He stated the trend in this area is the single family residences are turning into condominium developments.  He stated property taxes and insurance are making it more difficult for people to afford to leave there.  He supports this and would love to keep the area green with all of the lush he has at his house.  He stated although there was a denial at the Planning and Zoning Board it is important to note that there was a very spirited discussion; and four board members including Frank, Morrison, Jagrowskli, and Minniboo were doing there best to convince the other ones that they thought it was a good idea. 

 

Mary Gayden stated she has lived in the area for fifty years and all of her neighbors are in favor of this change.  She stated it will not change any outside appearance of the neighborhood. 

 

Robert Webb stated he is a 100% disabled veteran from the Marine Corps and Dr. Gayden has been seeing him for quite some time; that Dr. Gayden renders his service for free for many of the veterans so they don’t have to drive further; he believes by him doing that it saves the government a great deal of money; but it also leaves the Veterans Administration to have another space open for another veteran to come in.  He stated he supports it and thinks it is great. 

 

Commissioner Colon stated this is in her District and she wanted to bring attention to the Board that what she is doing is evaluating the compatibility of this request.  She read one of the letters from one of the neighbors in opposition.  She inquired to what the Board is allow to discuss regarding Code Enforcement.  Mr. Richardson responded the application has to be considered on its merits alone and the Board cannot consider the prior Code Enforcement violation or issue as part of this request.  Commissioner Colon stated north of the subject property is a single-family residence, and west is condominiums; and the Board needs to be very careful because the decision is not just based on one particular item but the bigger picture.

 

 

Motion by Commissioner Colon, seconded by Commissioner Voltz, to deny Item VI.B.7.

 

 

Mr. Richardson inquired to Mr. Enos if it is fair to qualify the surrounding and existing and future land uses here as residential in nature.  Mr. Enos responded yes in the immediate vicinity that is correct.  Mr. Richardson inquired in staff’s opinion is the existing zoning use of the current property the residential zoning more consistent with the surrounding area and future land uses than the requested zoning.  Mr. Enos responded yes. 

 

Commissioner Scarborough inquired if it would be important that the Board has the folks who do the analysis of traffic hazard and not traffic concurrency assisting the Board with additional information to substantiate this decision.  Mr. Richardson responded as of now no competent substantial evidence has been presented as to that issue so if the Board is inclined to base a portion of its decision on that then he would recommend that the Board direct staff to provide a report on that issue.  Commissioner Scarborough stated he would prefer to get additional documentation regarding people using other people’s yards to turn around.  Commissioner Bolin inquired if there would be a signage issue.  Mr. Richardson stated there may be but that would not be considered until the site plan stage.  Mrs. Busacca stated it is a State road so she thinks the decision is DOT’s.  Mr. Enos stated it would be a commercial sign, which would be permitted but may be limited in size.  Mr. Richardson recommended to the Board as long as it is sending it out for questions to Transportation the Board has the option; Zoning staff has done a great job putting its report together; and staff could take one additional step providing a recommendation which would then constitute an expert opinion.  Commissioner Scarborough inquired a recommendation from whom.  Mr. Richardson responded from Zoning staff.  Commissioner Scarborough stated he does not ever want to have a recommendation from Zoning staff, and he does not support that idea.  He further stated it basically closes the discussion and dynamics occur and then it has to be refered back to revise it.  Commissioner Scarborough stated with Commissioner Colon’s permission, the Board will have it come back before it limited to the traffic issue alone on April 3, 2008.  He stated the applicant is a participant and can bring their own traffic experts in, and if the Board will follow the same procedure and give a copy of their traffic report. Commissioner Scarborough stated the motion has changed now to be tabled. Motion carried and ordered unanimously.

 

Motion by Commissioner Colon, seconded by Commissioner Voltz, to table Item VI.B.7 to April 3, 2008 Board of County Commissioners meeting; approved limiting the discussion to the traffic issue only when the item comes back before the Board; directed staff to do a traffic analysis; and for the Applicant to present evidence ten days in advance of the meeting.

 

 

 

Upon motion and vote, the meeting adjourned at 8:27 p.m.

 

 

 

ATTEST:                                                         _________________________________

                                                                        TRUMAN SCARBOROUGH, CHAIRMAN

                                                                        BOARD OF COUNTY COMMISSIONERS

                                                                        BREVARD COUNTY, FLORIDA

___________________

SCOTT ELLIS, CLERK

 

 

     (S E A L)