MINUTES OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS

BREVARD COUNTY, FLORIDA

 

 

October 2, 2008

 

 

 

The Board of County Commissioners of Brevard County, Florida, met in regular session on October 2, 2008 at 5:02 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, County Manager Peggy Busacca, and Assistant County Attorney Morris Richardson.  Commissioner Voltz was absent.

 

The Invocation was given by Commissioner Jackie Colon, District 5.

 

Commissioner Mary Bolin led the assembly in the Pledge of Allegiance. 

 

 

 

County Manager Peggy Busacca advised Commissioner Voltz has asked her to request the Board grant permission to advertise for an ordinance that would permit golf carts to be driven along Barefoot Bay Boulevard, across the railroad tracks east, to the Winn Dixie; currently Barefoot Bay residents are only allowed to drive golf carts to the west of the railroad tracks; and Deputy County Attorney Shannon Wilson has been working on the ordinance, but staff needs permission to advertise.

 

Commissioner Bolin stated she also has a golf cart issue in her District; and inquired if the advertisement is something the Board wants to do Countywide, or District by District; with Ms. Busacca responding staff could open the advertisement once and fix both issues.  Commissioner Bolin stated she would like to postpone the advertisement until she is prepared.  Ms. Busacca noted if the Board gives staff permission to advertise, it can be advertised broadly enough that the Commission can change any area; but it is at the Board’s discretion.  Commissioner Bolin inquired if there is a time element with the advertisement, as she has not held public meetings yet, and she needs to do research; with Ms. Busacca responding Commissioner Voltz would like for the issue in Barefoot Bay to be resolved before she leaves office; and staff can advertise it for the November 17, 2008 meeting.  Commissioner Bolin stated she does not feel she will be prepared by November 17^th, but if it is a desire of the Board to separate the two issues, she will honor it; but she has a lot of work to do in Suntree and Viera with her golf cart issue. 

 

Commissioner Colon inquired how many meetings the Board has in November; with Ms. Busacca responding November 5^th is a Workshop, November 6^th is Zoning, and November 17^th is the last Regular meeting before the Organizational meeting on November 18^th.  Commissioner Colon inquired what Commissioner Bolin is most comfortable with.  Commissioner Bolin replied it is an issue that has come to her recently; she has to do community outreach on the item; and there are such legalities involved with whether or not a golf cart can be on a public road.  Commissioner Bolin stated if Commissioner Voltz already has everything  done  in  Barefoot  Bay  and it is  different  than it will be in  Viera-Suntree area, then

 

maybe she can forward the information to her; but at this point she is not prepared to come to a conclusion on it.  

 

Assistant County Attorney Morris Richardson stated his understanding is that in the case of Barefoot Bay and the specific request by Commissioner Voltz it is a simple matter of designating a portion of a roadway for use by golf carts; it is not a comprehensive assessment of what roadways the golf carts will be permitted on; and it is just a simple designation of one road in particular, and just a segment of that road.  Ms. Busacca advised golf carts are already permitted in Barefoot Bay; and Commissioner Voltz’s request would just be extending from west of the railroad tracks to east of the railroad tracks as far as the Winn Dixie. 

 

Commissioner Bolin stated the Board can let Commissioner Voltz go ahead and advertise for her golf cart request for the specific area of Barefoot Bay, and she will work on her item as a separate issue because she does not have a confined environment like Commissioner Voltz does; and she cannot be limited by the time element that Commissioner Voltz is on, so she would like permission to make her golf cart issue separate from Commissioner Voltz’s. 

 

Commissioner Nelson stated it would be his preference to get some information to know what the Board is talking about; and he is willing to go forward, but he will not make any guarantee the issue will be resolved before Commissioner Voltz leaves office.

 

Motion by Commissioner Nelson, seconded by Chairman Scarborough, to advertise for an ordinance that would permit golf carts to be driven along Barefoot Bay Boulevard.  Motion failed: Commissioner Bolin and Commissioner Colon voted in opposition.

 

 

 

Commissioner Nelson stated yesterday he had an opportunity to fly with some folks from the Farm Bureau; they flew in a Mosquito Control helicopter and looked at the damage caused by flooding to the farming areas; a lot of the systems related to the St. Johns River are not prepared to handle the amount of water the area received and there are pumps that have not been put in place; and it created worse flooding than should have happened.  He advised there will be a meeting on October 23^rd with the St. Johns River Water Management District, the Army Corps of Engineers, and other groups to try to come up with a better approach; when some people where in the bunker preparing for Tropical Storm Fay, no one from Melbourne-Tillman could be reached because they all had gone home; and the same thing happened with St. Johns River Water Management District, which was sluggish in opening the C54 Canal, which also contributed to some of the Lamplighter Village flooding. 

 

Commissioner Colon inquired if there is anything the current Board can do immediately to get the ball rolling with either the State or federal aid; with Commissioner Nelson responding there will be some legislators involved in the process; the Governor helped by placing calls after the farm community was frustrated over a slow response from some of the public agencies; and the meeting on the 23^rd is the kickoff.

 

 

Chairman Scarborough stated through the efforts of the Brevard County Delegation, Lobbyist John Thrasher, and Government Relations Manager Leigh Holt, for the second year brought down the leadership from Tallahassee; and last year the County received $14.5 million in infrastructure, $500,000 in research, which was substantially more than was received from the federal level; and the County received almost $20 million from the State and $700,000 from the federal level.  He advised NASA’s earmarks at the federal level were in the neighborhood of $90 million; the County is faring well at the State level, and he is happy with what has occurred; but the success at the State level needs to be replicated at the federal level; and the Board is working with folks such as Lee Solid, Marshal Heard, Frank DiBello, and Leigh Holt, who will be assigned to go to Washington, D.C. to work with Lobbyist Bob Walker. 

 

 

 

Item VI.B.2. (Z0809402) – MMJC Realty, Inc.’s request for a CUP for a Commercial/Recreational Marina in a BU-1 zoning classification on 4.1730 acres, located on the southeast corner of Coquina Ridge Drive and U.S. 1., which was tabled by the Planning and Zoning Board to the October 6, 2008 Planning and Zoning Board meeting, and to the November 6, 2008 County Commission meeting. 

 

Motion by Commissioner Bolin, seconded by Commissioner Nelson, to table Item VI.B.2. to the November 6, 2008 Board of County Commissioners meeting.  Motion carried and ordered unanimously.

 

 

Chairman Scarborough called for the public hearing to consider the recommendations of the Planning and Zoning Board of September 8, 2008 and the Port St. John Dependent Special District Board of September 10, 2008.

Item VI.B.1. (Z0809401) – Scorpion Properties, LLC’s request for a CUP for Alcoholic Beverages for On-Premises Consumption in a BU-1 zoning classification on 1.04 acres, located west of South Patrick Drive, and south of Tortoise View Drive, which was recommended for approval by the Planning and Zoning Board.

 

Motion by Commissioner Nelson, seconded by Commissioner Bolin, to approve Item VI.B.1., limited to restaurant use only.  Motion carried and ordered unanimously.

 

 

Item VI.B.3. (Z0809403) – William R. & Vicki J. Orndorf’s request for a change from RR-1 to AU on 4.15 acres, located west of Palomino Road, south of Arabian Court, which was recommended for approval with a Binding Development Plan, limiting AU uses to horticultural activity, with no greenhouses, by the Planning and Zoning Board. 

 

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

 

Item VI.B.4. (Z0809501) – Joseph C. Pritchett’s request for a change from RU-1-9 & RR-1 to all RR-1, with a CUP for Farm Animals and Fowl, and removal of the existing BDP, on 4.33 acres, located west of New York Street, and south of Miami Avenue, which was recommended for approval by the Planning and Zoning Board.  

 

Motion by Commissioner Bolin, seconded by Commissioner Nelson, to approve Item VI.B.4. as recommended.  Motion carried and ordered unanimously.

 

 

Item VI.B.5. (Z0809501) – Dragon Point Real Estate Holdings, LLC’s request to change the Future Land Use Designation from IND to CC, and a change from IU to BU-2 on 2.75 acres, located on the west side of John Rodes Boulevard, south of Ellis Road, which was recommended for approval by the Local Planning Agency and the Planning and Zoning Board.

 

Motion by Commissioner Bolin, seconded by Commissioner Nelson, to approve Item VI.B.5. as recommended by the Local Planning Agency and the Planning and Zoning Board.  Motion carried and ordered unanimously.  (See pages                                                               for Resolutions.)

 

 

Item VI.A.1. (Z0808203) – Gulf-Atlantic Properties, Inc.’s request for a CUP for Alcoholic Beverages for On-Premises Consumption in a BU-2 zoning classification on 0.52 acre, located east of Banana River Drive, north of Merritt Island Causeway, which was recommended for approval by the Planning and Zoning Board. 

 

Cliff Repperger, attorney representing the applicant, stated he was not present at the September 4, 2008 meeting; there was an initial discussion in terms of the presentation from the applicant side as far as what is at issue; and he will give the Board a brief overview of where they are.  He stated the request is for a CUP in a BU-2 zoning classification; it is for a 50-seat neighborhood pub called Spanky’s Bar; the location is 140 N. Banana River Drive; to the north of the property is a dentist office, to the south is a convenience store, to the east is the Island Lincoln Mercury dealership, and to the west is the Hobbs retail strip center, which is where the pub was located for 40 years prior to moving late last year; and the owners are looking to relocate back to its original location.  He noted at the last hearing the item was tabled; there was a meeting with District 2 Commissioner Nelson; and some of the neighboring property owners attended the meeting.

 

Commissioner Nelson stated there was a meeting and then a follow-up meeting in which more specifics were discussed; and he was not privy to that other than by emails.  Chairman Scarborough requested Mr. Repperger state the issues with the proposed request.

 

Mr. Repperger stated part of the concerns of the neighboring property owners at that time were some of the secondary effects that could result from the neighborhood pub; the property owners wanted to make sure there were sufficient security controls in place with respect to the actual property; there was an on-site visit on September 29, 2008; and at that time there were a number of conditions that the applicant and the neighboring property owners were in agreement with, and he would like to read those into the record.  He stated one condition was to install a fence east and west along the south border.  Chairman Scarborough inquired if the conditions have been reviewed by the people in opposition; with Mr. Repperger responding the conditions were agreed to at that time; and there is a post-issue to discuss; but the other conditions were agreed to on September 29^th.  Chairman Scarborough stated he has some speaker cards in opposition; and inquired if the speakers are aware of the issues.  Mr. Repperger replied there is a fairly decent relationship with the neighboring property owners; and there has been an active dialogue between the parties.  Chairman Scarborough inquired if Mr. Repperger has exchanged the information with the neighboring property owners; with Mr. Repperger responding the owners are aware of the conditions he is about to read, but there are additional conditions that may need to be discussed.  Chairman Scarborough stated the Board can see where the applicant has not met the mark; if there are items in agreement, he does not need to know what has been agreed to; and he is more concerned about where an agreement has not bee met.  Mr. Repperger stated it may be appropriate for him to read the conditions that have been agreed to so that everyone has a sense of what the actual conditions are into the record.  Chairman Scarborough inquired if the persons in opposition aware of those conditions; with Mr. Repperger responding affirmatively.  Chairman Scarborough stated he would like to hear from the speakers first.

 

Christopher Coleman stated he is an attorney representing two neighboring properties including Island Lincoln Mercury; and he believes an agreement has been met, but it may be more beneficial to temporarily table the item and come back to the Board to report what exactly has been agreed upon.  Chairman Scarborough stated everyone associated with the item can meet outside in the hall and come back later in the meeting.

 

 

Chairman Scarborough called for the public hearing to consider an ordinance amending the GML Zoning Classification to add private, PSC-regulated utilities.

 

There being no objections heard, motion was made by Commissioner Nelson, seconded by Commissioner Bolin, to adopt an Ordinance amending Chapter 62, “Land Development Regulations”, Code of Ordinance of Brevard County, Florida; amending Section 62-1572 to permit electric, natural gas, water and wastewater utilities that are either publicly owned or regulated by the Public Service Commission in the GML Zoning  Classification; creating  Section 62-1926 to establish conditions for consideration of such utilities in the GML Zoning Classification; amending Section 62-2101.5 to regulate the height of such uses in the GML Zoning Classification; providing for conflicting provisions; providing for severability;  providing  for  area  encompassed;  providing  an effective date; and provisions  for inclusion in the Brevard County Code of Ordinances.  Motion carried and ordered unanimously.  (See page                                                        for Ordinance No. 08-40.)

Item VI.B.6. (PSJ80901) – Florida Power & Light, Company’s request for a change from IU, AU and RU-2-10 to GML(U) with a CUP for Electric, Natural Gas, Water and Wastewater Utilities on 39.848 acres, located on the east side of N. Highway 1, north of Camp Road.

 

Sandy Sanderson, Florida Power and Light Company, stated he is joined by several members of the corporate office development team, all of whom are available to answer any questions from the Board; and following him will be Cindy Tindall who is the Senior Director of the Project Development Group, and she will give the Board an update on the project. 

 

Chairman Scarborough stated a question has been raised about the current credit crunch; apparently Constellation Power has been unable to move forward with a major project because of lack of credit; and inquired if the lack of credit will in any way impact the possibility of FPL moving forward with the new plant.  Mr. Sanderson replied no, not to the best of his knowledge; and FP&L does not have a problem and it is moving ahead. 

 

Cindy Tindall advised FP&L has every intention of modernizing the Cape Canaveral and Rivera Beach Plants; she knows of absolutely no condition related to Chairman Scarborough’s question that would prevent FP&L from doing that. 

 

Mr. Sanderson stated Ms. Tindall will walk the Board through the specifics of the project; he would like to talk about communications with the citizens of Port St. John; and that is the project for which he has taken personal responsibility.  He stated since the last time he was before the Board, FPL held a second open house to update the community; he is putting together a Community Advisory Panel; he has had good recommendations from many people in the community; he has already sent many invitations; the first meeting of the panel should be by the end of the month; and he expects to have a total of 12 people on the panel.  He stated a few days ago he had a conversation with Chairman Scarborough; it was mentioned that FPL is contemplating changing the name of the new power plant; and it has been a question over the years as to why it is called the Cape Canaveral Plant, when it is 15 miles from Cape Canaveral.  He advised the plant was constructed to support neighboring customers, but also the Space Center; and at the time the Space Center was only known as Cape Canaveral, and that is how it got its name.  He noted putting in a new plant gives the opportunity to change the name; Chairman Scarborough suggested FPL may want to go to the community, and more specifically, the school students, to have a contest and get good suggestions for a name for the new plant; and perhaps FPL could give a scholarship to the student who comes up with the winning name.  He stated he appreciates the suggestion; and naming the new plant will be one of the tasks the community  Advisory Panel will implement  once it is underway.  He noted the process is moving along smoothly; if the Board approves the item tonight it will be the last time he will stand before the Board; there are three Commissioners that have terms expiring; and he wanted to take a final opportunity to thank the Board for the cooperation; the project has been a long time coming; the new plant will have remarkable improvements as far as reducing emissions, as it is extremely efficient; and it is not an exaggeration to tell the Board it will be one of the best plants in the entire State of Florida, and maybe the country. 

 

Commissioner Colon expressed appreciation to Mr. Sanderson; FPL must be proud to have Mr. Sanderson on their team; when the community was facing horrible circumstances, the Board knew that if it called Mr. Sanderson he would get the job done; and she thanked him for always being available to the community.

 

Commissioner Bolin stated when the new plant is complete, she would like FPL to make it a business tour attraction; and people from around the country and around the world can tour the plant.  Mr. Sanderson stated he would love to do that, but unfortunately since 9-11 there is some increased security restrictions that make touring the new plant difficult; but he understands the concern and he will try to accommodate that request.

 

Chairman Scarborough inquired when the solar plant will open at the Space Center; with Mr. Sanderson responding February 17, 2009.  Chairman Scarborough stated the Board will be working with FPL in Washington, D.C. to see if FPL cannot be a player in helping the Board lobby to make Kennedy Space Center and Brevard County a deal, as well as a NASA center; and having FPL as a partner with the Board is going to have a tremendous effect. 

 

Cindy Tindall, Senior Director of Project Development at FPL, stated FPL Group is one of the largest holding companies in the United States; it is the third largest generator in the country, with plants in nuclear fossil fuel and renewable energy; and FPL stands behind what it does.  She stated the modernization of the Cape Canaveral Plant is part of a comprehensive strategy to remain the nation’s leader in clean and renewable energy; through conservation efforts over the past 20 years, FPL has avoided building 12 new power plants in its service territory; FPL is currently developing clean and renewable generation projects in Florida that will amount to over $20 billion of investment of which the Cape Canaveral Plant represents approximately $1.1 billion.  She commented on FPL being a long standing supporter and participant in the community and contributing to many local events and fundraisers.  She stated the new plant will be located on 42 acres between Cocoa and Titusville; the current facility features two conventional steam boilers from 1965 and 1969 with a net capacity of approximately 800 mega watts; and in 2007 the average capacity factor was approximately 30 percent for the Cape Canaveral Plant.  She stated it is estimated the new plant will save FPL’s customers hundreds of millions of dollars compared to the alternatives; the new plant will be built on the existing site; FPL will use the  existing  intake  and  discharge infrastructures; the  new net  capacity of  1,250 mega watts is approximately 450 mega watts larger than the existing plants; and the state-of-the-art combined cycle technology results in 33 percent less fuel used for the same amount of power produced.  She stated the new plant means an additional $12 million in property taxes; and  it would  break  down incrementally  to $5.3  million for schools,  $4.8 million to the County, and $1.6 million to other taxing districts.  She noted FPL will not use any additional resources; the new technology will result in significant reductions and emissions, including an 85 percent reduction in particulate matter, 97 percent reduction in sulfur dioxide, 92 percent reduction in nitrogen oxide, and for carbon dioxide there is expected to be a 50 percent reduction, which equates to approximately 850,00 tons per year, or taking 56,000 cars off the road.  She noted local benefits include employment; FPL will promote local employment during the modernization process; it will disseminate information about the types of jobs, the skills that will be required for those jobs, and local training opportunities; and the jobs will be advertised in the local media.  She stated the modernization of the plant will reduce the stack height by approximately 400 feet to approximately 150 feet; and the plant will become much less visible in the local neighborhoods.  She advised modernizing the Cape Canaveral Plant is contingent upon FPL obtaining approval, and construction and bringing online in 2007 the West County Energy Center Unit Three; without it, FPL will not have sufficient reserve margin which is required to be maintained by the Public Service Commission to take the Cape Canaveral Plant offline and upgrade it; and FPL has already received Public Service Commission’s approval and is in the final stages of getting governor and cabinet authority, which is expected to be obtained by February 2009, to move ahead with the West County Three site.  She advised it is anticipated that the decommissioning and demolition beginning in September 2010; construction of the new plant will begin in April 2011; and operations will begin in June 2013.  She stated community groups can request a presentation from FPL’s staff. 

 

Chairman Scarborough inquired of the total cost of the project; with Ms. Tindall responding the total installed cost is expected to be approximately $1.1 billion.  Chairman Scarborough inquired of that, can Ms. Tindall break out how much would be in construction wages; and stated it is interesting that at the time FPL is building the new plant is at a time when the County will be going through potentially a rough time with the Space Center.   Ms. Tindall stated she will get the information to the Board.

 

Motion by Commissioner Colon, seconded by Commissioner Bolin, to approve Item VI.B.6. as recommended by the Port St. John Dependent Special District Board.  Motion carried and ordered unanimously.

 

 

PUBLIC HEARING, RE:  TABLED ITEM OF SEPTEMBER 4, 2008 (CONTINUED)

 

Item VI.A.1. (Z0808203) – Gulf-Atlantic Properties, Inc.’s request for a CUP for Alcoholic Beverages for On-Premises Consumption in a BU-2 zoning classification on 0.52 acre, located east of Banana River Drive, north of Merritt Island Causeway, which was recommended for approval by the Planning and Zoning Board. 

 

Cliff Repperger, attorney representing the applicant, stated an agreement has been reached on terms and conditions for the CUP; and he can read them into the record.

 

Commissioner Nelson  stated he  would like  to hear the terms of  the  conditions because  there was one issue in particular related to liability that was a concern, and that seemed to be the greatest issue. 

 

Mr. Repperger advised the first condition is a fence running east to west along the south border from the existing chain link fence at the rear of the property towards N. Banana River Drive, as far as the Code will allow; the second condition is a fence from the south side of the storage building running south to the property line; number three is a fence from the northwest corner of the building running north to the southeast corner of Mr. Barratta’s building, which is the building immediately north, and it will bridge the two buildings and prevent people from going into that parking lot; the fourth condition is eight security cameras over the entire property, but specifically on north side of the building covering Mr. Barratta’s rear parking lot, and if possible a camera on the southwest corner of Mr. Barratta’s building which will cover the front parking lot for that building, along with a monitor inside the pub location where the employees can monitor the cameras, and there will be a camera facing the rear of the property watching the Island Lincoln Mercury; there will be an opaque barrier on the chain link fences running north and south; his client has agreed to meet with the neighbors as necessary and to provide on-site security if it becomes necessary; and additionally, his client has agreed to a gate on the north side of Mr. Barratta’s building where he accesses his rear parking lot.

 

Commissioner Nelson stated it was also mentioned that the Board can reconsider the CUP if the conditions are not being met.  Assistant County Attorney Morris Richardson stated under the Code are provisions for revocation of a CUP that has already been issued; there are provisions for a CUP before development has occurred; and also provisions for after development has occurred.  He stated if in any way the actual conduct on the premises violates the conditions of the CUP, including things like traffic issues, noise, odors, or a general nuisance to the health, safety, and welfare, the CUP can be revoked; and the Code also allows for the CUP to be modified as well. 

 

Commissioner Nelson stated there has been some discussion about the nature of the business; Charles Grimmnitz has talked about renaming the establishment or doing something that would give the clear appearance that there is a new approach.  Mr. Grimmnitz stated he is working with a developer who has developed over 300 bars, including Nolan’s in Cape Canaveral; and he is using professional people who are used to developing bars, and he is trying to bring up the standard level.  Commissioner Nelson stated it is important because N. Banana River Drive is going through some upgrades; it was the upgrade that is causing Mr. Grimmnitz to go through what he is today because Hobbs Medical Center has expanded; and he appreciates the way the neighbors worked it out.

 

Motion by Commissioner Nelson, seconded by Commissioner Bolin, to approve Item VI.A.1. with the following conditions:  1.) Fence running east to west along the south border from the existing chainlink fence at the rear of the property towards N. Banana River Drive, as far as the Code will allow;  2.)  Fence from the  south  side  of  the  storage  building  running  south to  the property line;  3.)  Fence from the northwest corner of the building running north to the southeast corner of Mr. Barratta’s building to the north;  4.)  Eight security cameras, specifically on the north side of the building covering Mr. Barratta’s rear parking lot; if possible a camera on the  southwest  corner  of  Mr.  Barratta’s  building,  which  will cover the front parking lot for that building, along with a monitor inside the pub location which can be monitored by employees; and a camera facing the rear of the property watching the Island Lincoln Mercury dealership;  5.)  Opaque barriers on the fences running north and south;  6.)  Applicant agrees to meet with neighbors as requested to provide on-site security if necessary; and 7.)  Gate to be located on north side of Mr. Barratta’s building, blocking the entire parking lot.  Motion carried and ordered unanimously.

 

 

 

Item VI.B.7. (Z0809201) – S.Y. & Sandy Y.H. Li’s request for a Small Scale Plan Amendment (08S.13) to change the Future Land Use designation from Residential 15 to CC, and a change from PUD to BU-1 on 2.44 acres, located east of S. Courtenay Parkway, north of Live Oak Boulevard, which was recommended for approval by the Local Planning Agency, and recommended for approval with a Binding Development Plan by the Planning and Zoning Board.

 

 Commissioner Nelson stated he looked at the proposed change, and currently it is a PUD with basically medical uses; and the applicant is requesting to change to Community Commercial.  He stated the property is further south on Courtenay Parkway; he has concerns that it does not appear to be consistent with the Comprehensive Plan; and inquired if Mr. Beals’ client has a specific plan to develop on the property.

 

Robert Beals, attorney representing the applicant, stated his client is proposing to develop two strip centers within the two and one-half acres under the permitted uses, which have been limited in the Binding Development Plan.  Commissioner Nelson stated some of the limitations are still hefty for being located so far south on Courtenay Parkway; he has not had an opportunity to meet with Mr. Beals before the meeting; and he would like to suggest tabling the item to the next Commission meeting.  He advised the only way he will support the request is if it is narrowed down to something he is comfortable with that far south on Courtenay Parkway.

 

Motion by Commissioner Nelson, seconded by Commissioner Bolin, to table Item VI.B.7. to the November 6, 2008 Board of County Commissioners meeting.  Motion carried and ordered unanimously.  (See pages                                                     for Resolutions.)

 

 

 

Zoning Manager Rick Enos distributed information to the Board and to the Clerk.  He stated the Board has already directed staff to proceed with the ordinance; staff is going to the Local Planning Agency later in the month; in front of the Board is the actual conditions of the Conditional Use Permit as proposed for the LPA in black ink; and in red ink are alternatives, which  are  the  things  he  has  been  hearing   the   Board   and   staff   talk   about.   Chairman Scarborough stated it is clear that if someone is not in a subdivision, their home has to be within 1,000 feet of the dock.  Mr. Enos stated the second condition is if the use is prohibited in the Indian River Lagoon, or if the Board does want to permit it in the Lagoon, some kind of sea grass survey limiting the damage to the sea grasses would be required; one idea that came up recently is docks established prior to the effective date of the ordinance, as evidenced by a certified survey, shall not be required to meet the previous two conditions; and in those cases the Board may want to consider waiving or reducing the compliance with one or two of the conditions.  He stated a CUP would still be required, but they would not be subject to necessarily all the conditions. 

 

Commissioner Nelson stated he still has a concern because it still rewards bad behavior; what it is saying is that if it can be sneaked past the Board, then it is forever okay; and this is a unique setting.  Chairman Scarborough stated he had a conversation with Assistant County Manager Mel Scott this afternoon; Mr. Scott advised in West Canaveral Groves, there were certain people who came before the Board and were able to stay there because they had already been there; but the other situation is that there were people who were there, but had not met certain standards; and the Board cannot allow someone to live in a condition that is harmful to their health.  He stated there is a problem when someone in good faith bought into something without knowing.  He noted one thing he has heard over the years is that a person can go to one department and be told one thing, and go to another department and be told another thing; and somewhere along the way they are told there is a problem.  He stated the Board has multiple sets of eyes who are looking at all different types of component parts; the danger is if people come in they may talk to the wrong person; and he would like to move forward with the issue but in a very cautious way because he does not want to set up Commissioners years down the line because it creates multiple standards where there are different people with different issues. 

 

Commissioner Colon stated there is no such thing as a perfect ordinance; the fact that the Board is looking at it and trying to address it is the right thing to do; it is not going to be perfect by any means because each situation is different; and she agrees with Chairman Scarborough.

 

Commissioner Nelson stated he likes the fact that the Board is moving towards a solution; but he does not know that he is comfortable the Board is there yet; and he does not mind talking about it because there is an answer somewhere.  He stated he lives on the water and his docks are all legal, but the Board is going to give the right to do something that he cannot do, in terms of distances from the sides of lots; and the Board is going to convey to others a right that someone who is following the law cannot do.  Chairman Scarborough stated that is a separate collateral issue because some may meet the setbacks, and others are overlapping.  Commissioner Nelson stated he would like to move forward because there has to be a solution; but the question is what is that solution and how does it overlay with everything else the Board does because the same argument can be made about sheds and fences; and there is one thing he would like to strike sea grasses because that is covered by the permitting process of public agencies. 

 

Commissioner Bolin stated the Board needs to move forward; she agrees it is not going to be perfect;  and  she  has  people  in  her  district who live in historical homes on the river and have rights in mind forever, and the Board has to be careful to honor those people who have had docks for a long time. 

 

Melissa Thorn stated she is sensitive to what the Board just stated; she is representing residents of Brevard County for over 30 years on Riverside Drive in Indialantic; the property is zoned residential and the owners built a dock and was properly permitted; and it has been in place for over 23 years.  She stated the Zoning Code does not allow a dock to be in existence if it is not serving a primary residential structure; the property owners have no intention of selling the property, but due to different various family circumstances and financial problems the owners have not been able to build a home on the property.  She stated the property has not been up for sale; the owner has spent over $200,000 in maintaining the property; and it is her hope that the Board will consider the people who have riverfront property, who followed the appropriate channels.  She stated the history of docks in Brevard County is that at one time the County deferred to the jurisdiction that was allocated to the appropriate permitting; the Corps of Engineers were the primary regulatory agency; and the residents have documentation that they were properly permitted.  She stated now the property is technically in violation of the Zoning Code because the dock does not serve a primary residence; the County is telling the owners to tell them they need to remove the dock; and she has had extensive conversations with the Army Corps of Engineers to determine what can be done. 

 

Chairman Scarborough stated the situation is not unique; the County had a Zoning Department and then came the Comprehensive Plan; and the Board found there were anomalies that could not fit within the Zoning Code and the Board had to deal with it.  He stated the Board has historically dealt with things that have been in place for a long time; and the history cannot be erased.  He stated what concerns him is it is not retroactive, but it also contemplates moving forward; there are advantages and disadvantages; and if in the middle of a residential area is a bar, but occurred so far back, should he say that every place in the entire residential area can be bars; and there needs to be different classifications of rights based upon the time on which things came in.

 

Ms. Thorn stated she has spoken to Cindy Fox in the Planning and Zoning Department, and she has been phenomenal; she is before the Board because she is between a rock and a hard place; Planning and Zoning can only speak out of the Code; and the Board is currently reviewing an ordinance that is specifically tailored with a particular subdivision. 

 

Chairman Scarborough stated what staff is proposing is that the primary residence has to be within 1,000 feet of the dock; and inquired if that is going to be a problem.  Ms. Thorn replied there is no primary structure right now; it is a parcel located on Riverside Drive in Indialantic; and it is surrounded by residences with docks.  Commissioner Bolin inquired if a home can be built on the lot; with Ms. Thorn responding absolutely, it would be a conforming structure.  Ms. Thorn  advised  the  owners  purchased  the  property  with  the  understanding  that if they went through the appropriate channels they could build a dock and then a home; but the problem is that there has been over $200,000 spent, a dock is in existence that the Corps has told them if the County requires that it be torn down, the owners cannot rebuild the same dock once again. 

 

Chairman Scarborough stated the question is going to be how does the Board advertise the ordinance broadly enough.  Mr. Enos replied staff is only advertising that the Board is creating a CUP for private docks; and it is being advertised broadly enough that the Board can add any condition it wants and it will be able to make those changes at it goes through the public hearing process without having an issue with the advertisement.  Chairman Scarborough stated he can support what Ms. Thorn is sharing with the Board, but it needs to be written in the ordinance as something different.  Mr. Enos advised Ms. Thorn’s circumstance is represented by the second paragraph in the proposal where he has suggested two conditions; one is that either the lot has to be developed, or it may be developed or undeveloped; and it allows the Board the opportunity to consider that circumstance and decide if it wants to go in that direction.  Chairman Scarborough stated the Board may want to define if the lot is capable of being developed; and if it is capable of being developed, then it is okay, at least for a period of time. 

 

Andy Barclay stated the proposed ordinance is an improvement with the situation he finds himself in; Mr. Johnson could not be present this evening, but he wanted him to ask the Board that there not be some kind of amortized time limit on the docks; and he also agrees with Mr. Johnson.  He stated amortizing will not help him, and if he has to take down his dock at some point, he is still taking down the dock, which is why he is in front of the Board this evening.  He lives in an area that is improving; if he is not allowed to keep his dock, he does not have the incentive to improve the property as other properties improve.  He stated he is not sure his property would meet all of the qualifications in the proposed ordinance.

 

Chairman Scarborough inquired if Mr. Barclay’s residence is within 1,000 feet of the dock; with Mr. Barclay responding it is within 300 feet.  Chairman Scarborough inquired if Mr. Barclay’s dock is violating anything else in the Code such as setbacks; with Mr. Barclay responding no, not that he is aware of.  

 

Mr. Enos advised one of the advantages of going the route of a CUP is that because a dock is an accessory use in a very limited circumstance, one cannot go to the Board of Adjustment to get a dock; the CUP allows the dock to be established as a permitted use, and then it opens up the Board of Adjustment for variances for things like setbacks; and if someone can prove a hardship, then he or she can go to the Board of Adjustment.

 

Chairman Scarborough stated it may be beneficial to have a meeting; and inquired if the Board is going to notify a lot of people on the issue.  Mr. Enos stated staff is ready to send out notices tomorrow for the 35 or so docks staff is aware of in this circumstance.  Chairman Scarborough noted it might be a good idea to have a meeting with the community.  Mr. Enos advised the LPA is scheduled to consider the ordinance on October 20, 2008; and inquired if Chairman Scarborough wants to have a meeting before the LPA date or after.  Chairman Scarborough stated it does not matter, but it needs to be resolved before November 17, 2008. 

 

Abby Barclay stated the past year has been tough on her and her husband; they were newlyweds when they bought their house; and they had only lived in the house for a few months when they were told to tear down the dock.  She stated she and her husband have wanted to start a family, but have not because they did not know if they were going to be bankrupt; the house  was  $525,000,  and  without  the  dock  it  would  be  a blow to them financially; and she expressed appreciation to the Board for looking into the matter.  She noted on Tuesday Commissioner Nelson mentioned having conditions for the repair of docks; that is a safety concern for her and her family in the future; and the dock will not do her any good if her family cannot enjoy it.

 

Commissioner Nelson stated in some circumstances if a dock reaches over 50 percent repair, then it has to come out; and that was what he was referencing on Tuesday. 

 

Commissioner Nelson stated with the Manatee Protection Plan docks can only be built one every 100 feet; and inquired if that was strictly for marinas.  Darcie McGee, Natural Resources Management Office, replied yes, it is strictly for marinas that are under the Manatee Protection Plan review; and the review looks at manatee mortality and abundance, and sea grass.  Commissioner Nelson inquired if he had a subdivision that could get a certain number of lots along the waterfront, and it could be as narrow of a piece a he could create along the waterfront, he could put a dock on it; with Ms. McGee responding yes, if it was a single-family lot; the State has guidelines for single-family docks; but in general a single-family dock is exempt from Manatee Protection Plan review; and if there were ten lots in a subdivision on the water, there could be ten single-family docks.  

 

Chairman Scarborough inquired if Mr. Richardson feels the Board will have adequate ability to add things to the ordinance up until November 17^th, with regards to the advertisement.  Mr. Richardson replied based on what Mr. Enos has said, the advertisement sounds broad enough; he was concerned with the ordinance title that was given and that it would not read broadly enough, but the Board can incorporate what Mr. Enos announced, and that will be broad enough to capture all the concepts the Board will be discussing.  Chairman Scarborough stated hopefully at the community meeting the Board can begin to see what the particular problems are. 

 

 

Upon motion and vote, the meeting adjourned at 6:33 p.m.

 

 

 

ATTEST:                                                                     _________________________________

                                                                                    TRUMAN SCARBOROUGH, CHAIRMAN

                                                                                    BOARD OF COUNTY COMMISSIONERS

                                                                                    BREVARD COUNTY, FLORIDA

____________________

SCOTT ELLIS, CLERK

         

          (S E A L)