MINUTES OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS

BREVARD COUNTY, FLORIDA

 

 

February 5, 2009

 

 

 

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 Chuck Nelson, Commissioners Robin Fisher, Trudie Infantini, Mary Bolin, and Andy Anderson, Assistant County Manager Mel Scott, and Assistant County Attorney Christine Lepore. 

 

The Invocation was given by Pastor Norm Holm, Calvary Chapel Church, Melbourne, Florida.

 

Commissioner Robin Fisher led the assembly in the Pledge of Allegiance. 

 

 

 

Commissioner Anderson advised earlier in the year the Board discussed Crosswinds Youth Services; he was tasked with meeting with the Chiefs of Police; and he will prepare a report for the Board regarding the funding for Crosswinds next year. 

 

 

 

Item V.A.1. (Z0809201) – S.Y. and 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 Community Commercial, and a change from PUD to BU-1 on 2.44 acres, located on the east side of S. Courtenay Parkway, north of Live Oak Boulevard.

 

This item was withdrawn by the applicant.

 

 

Item V.B.3. (Z0812201) – Brevard County Board of County Commissioners on its own motion and pursuant to Policy 15.2 of the Future Land Use Element of the Brevard County Comprehensive Plan, has authorized that the following be considered for administrative rezoning:  Property owned by Michael A. and Collette T. DiChristopher, to change from GU to EA on 15.05 acres, located at the western terminus of Martin Boulevard. 

 

This item was withdrawn by staff.

 

 

Item V.B.15. (NMI81002) – The Bluffs Development Corporation requests a change from GU to AU, as amended by the applicant at the North Merritt Island Special District Board meeting on October 16, 2008, on 30 acres, located on the south side of Pine Island Road, approximately 0.14 mile west of Preserve Pointe Drive. 

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to tabled Item V.B.15. to the March 5, 2009 Commission meeting.  Motion carried and ordered unanimously.

 

 

 

Item V.A.2. (Z0810102) – The B.D.M. Financial Corporation; Jacob Aaron Corporation; Michael P. and Lori L. Melzer; Richard and Patricia Melzer request a Small Scale Plan Amendment (08S.17) to change the Future Land Use designation from Residential 4 and Neighborhood Commercial to Community Commercial on 8.46 acres; AND a change from GU and RU-1-11 to TU-2, with a BDP, on 22.98 acres, located on both sides of Port St. John Parkway, between I-95 and Grissom Parkway.

 

Doug Robertson, representing the applicants, advised the request is to change the zoning along portions of the Port St. John Parkway, just south of Port St. John, between Grissom Parkway and the Interchange of I-95; what the request would do, if approved, is make the zoning in the area consistent with the existing Community Commercial Future Land Use designation; and the land use in the area has already been designated as commercial.  He noted in addition, there is a request to change the land use on 8.46 acres to Community Commercial; and stated staff has determined it is essentially in-fill in the area that would square-off the parcels.  He stated the area has been looked upon as the commercial center for the Port St. John future commercial area for the Port St. John area; and the purpose of the request is to create a commercial center in the area that will serve both Port St. John and Canaveral Groves.  He noted the request has been found to be consistent with the Comprehensive Plan; it is compatible with the surrounding area; and there will be no conflicts with residential in the area.  He stated with the Binding Development Plan that has been agreed to, there will be no concurrency issues in the future; the Planning and Zoning Board approved the request unanimously; and he hopes the Board of County Commissioners will do the same.

 

There being no further comments or objections, motion was made by Commissioner Fisher, seconded by Commissioner Bolin, to adopt Ordinance amending Article III, Chapter 62, of the Code of Ordinances of Brevard County, entitled “The 1988 Comprehensive Plan,” setting forth the Seventeenth Small Scale Plan Amendment of 2008, 08S.17, to the Future Land Use Map of the Comprehensive Plan; amending Section 62-501 entitled Contents of the Plan; specifically 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.   

 

  

Chairman Nelson called for the public hearing to consider the recommendations of the Planning and Zoning Board of December 8, 2008, January 5, 2009; and the North Merritt Island Special District Board of January 8, 2009 as follows:

Item V.B.1. (Z0812101) – Moises Jaramillo’s request for a Small Scale Plan Amendment (08S.18) to change the Future Land Use designation from AGR to Residential 1, and a change from GU to RRMH-1 on 1.17 acres, located on the north side of Pine Needle Street, approximately 0.34 mile west of Meadow Green Road.

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to adopt Ordinance amending Article III, Chapter 62, of the Code of Ordinances of Brevard County, entitled “The 1988 Comprehensive Plan,” setting forth the Eighteenth Small Scale Plan Amendment of 2008, 08S.18, to the Future Land Use Map of the Comprehensive Plan; amending Section 62-501 entitled Contents of the Plan; specifically 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.   

 

 

Chairman Nelson read a statement as required by the County Attorney’s Office.  “The Board of

County Commissioners acts as a quasi judicial body when it hears requests for rezonings and conditional use permits.  Applicants must provide competent substantial evidence establishing facts or expert witness testimony showing that the request meets the Zoning Code and the Comprehensive Plan criteria.  Opponents must also testify as to facts, or provide expert testimony; whether they like or dislike a request is not competent evidence.  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 testimony, opinion testimony, or a poll by the audience by asking those in favor or opposed to stand up or raise their hands.  If a Commissioner has had communications regarding a rezoning or conditional use permit requests before the Board, the Commissioner must disclose the subject of the communication and the identity of the person, group, or entity with whom the communication took place before the Board takes action on the request.  Likewise, if a Commissioner has made a site visit, inspection, or investigation, the Commissioner must disclose that fact before the Board takes action on the request.  Each applicant is allowed a total of 15 minutes to present their request unless the time is extended by a majority vote of the Board.  The applicant may reserve any portion of the 15 minutes for rebuttal; other speakers are allowed five minutes to speak; speakers may not pass their time to someone else in order to give that person more time to speak.”  He stated he will contact SCGTV to have the statement read before each meeting. 

 

   

Item VI.B.2. (Z0812102) – Brevard County’s request for a CUP for Solid Waste Management Facilities in GML(H) zoning classification on 18.532 acres, located west of Adamson Road, north of S.R. 523.   

 

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

 

 

Item VI.B.4. (Z0812501) – Daniel M. and Shelley D. Skinner’s request for a change from GU to SR on 0.88 acre, located west of Stewart Road and north of Aurora Road, at the terminus of Steward Lane, 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. (Z0901501) – Rose B. Mathers’ request for a change from RU-2-10 to RU-1-13 on 0.09 acre, located south of Atlantic Avenue, west of Highway A1A, which was recommended for approval by the Planning and Zoning Board.

 

William Helton, applicant, advised he is asking for approval of the rezoning request in order to build a two-story house on the lot; stated there are lots on the street that are the same size and have houses on them; and it is zoned multi-family now, but it does not meet the minimum lot size to be multi-family. 

 

John Fausone stated he would like to give the Board a brief history on Atlantic Avenue; it was one of the original streets built on the beach, if not the original street; the property titles are for each lot as Canova Beach Vacation Home sites; and the reason for that was because the homes were built originally as weekend retreats or vacation homes.  He noted each lot is only 50 feet wide and 80 feet deep; the first few homes were built in the 1940’s on 40-foot lots; in the 1950’s more people started buying more property; the house to the east of him is a single house on five lots; and the house to the west is on four lots.  He advised a couple of years ago a developer bought an existing rental house at the end of Atlantic Avenue and built 10, two-story townhomes; the townhomes sold for $550,000 each. 

 

Zoning Manager Rick Enos stated right now the Code requires a 5,000 square-foot lot to be considered a buildable lot; the subject lot has received variances on the minimum square footage; and so if the zoning classification is approved, the lot would be buildable.  He noted most of the lots in the subdivision are double lots or more; there may be a few that are one and a half lots; and any parcel that has at least one and a half lots are now buildable under the current Code; and the single lots require variances.

 

Chairman Nelson advised Mr. Fausone he would have to go through the same process as the owner of the subject property has up to this point.  Mr. Fausone stated he has lived he has lived on the street since the 1970’s and the minimum lot size was always 75 feet; and inquired why some people are being allowed to build on a 50-foot lot.  Chairman Nelson noted some people were granted a variance.  Mr. Enos stated a variance would be required as well as a rezoning to single-family to make a 50-foot lot buildable.  Mr. Fausone stated he should be able to get a variance to tear down his existing home because the lots are worth more than the existing houses.

 

Commissioner Fisher inquired of the current zoning on the property; with Mr. Enos responding the current zoning is RU-2-10, which is a multi-family classification.  Commissioner Fisher inquired what Mr. Helton could build with the current zoning.  Mr. Enos replied multi-family would allow multi-family at 10 units to the acre; the subject property is just under a tenth of an acre; under the current zoning, there are no development rights at this time; however, if it were to be accumulated with other multi-family lots, then it would generate approximately one unit.  Commissioner Fisher stated if Mr. Helton bought the house next door he would have two lots and then be able to build a duplex.  Mr. Enos stated that is correct.

 

Commissioner Fisher inquired if the subject lot was ever for sale; with Mr. Fausone responding it is for sale right now for approximately $60,000.

 

Laura Fausone stated Atlantic Avenue used to be a quiet street on the beach; it is a dead-end street with only one way in and out, via A1A; and that is one of the concerns she has.  She stated Atlantic Avenue is very narrow; the new townhomes are at the end of Atlantic Avenue; when that townhomes were built, there were a lot of people who disregarded the safety of the people on Atlantic Avenue; and there were construction trucks all over the place.  She stated Atlantic Avenue is 11 feet above sea level, which means when it rains it floods; and it is very difficult to make a left or right hand turn on A1A; and when the construction trucks are parked on A1A, there is no visibility.  She stated there are children on the street and a bus stop at the end of Atlantic Avenue and A1A; the children will have to travel past construction; and that is not safe.  She stated the subject property is on the most narrow area of Atlantic Avenue; and allowing a house to be built there will make travel a complete nightmare. 

 

Dikki Jo Mullen stated she has a petition signed by residents in the area that says, “we the undersigned residents of Brevard County, Florida, respectfully request that you unanimously deny the following actions, which will come before you on February 5, 2009.”  She gave a copy of the petition to the Board and to the Clerk.  She stated the subject property is a 4,000 square-foot unbuildable lot; stated Mr. Helton has not yet purchased the property; and he is very vague about exactly what he wants to do; but from what he described, it is going to be bad for the character of the neighborhood.  She read aloud a letter from architect Matthew Hill; and gave a copy of the letter to the Board and to the Clerk.  She stated to allow the rezoning would not be fair to Mr. Helton and his wife; they do not know what they want to build; they will end up with a dollhouse;  and  the  one  persons  profiting  would  be  the  realtor and the Mathers family.  She noted the neighbors have offered the Mathers family a fair fee to buy the lot in the past, but they would not sell it. 

 

Sally Hill stated Atlantic Avenue is a vintage street; it is a one way street; and the subject property is very small.  She stated if a variance is needed and the zoning needs to be changed in order for it to work out for Mr. Helton, that seems like it should be a consideration. 

 

Mr. Helton stated he understands the neighbors’ concerns; the street is lined with houses; there are three houses on the same size lot as the subject property; stated he will build his house with his dad and not a construction company; and he is going to take his time to build a small, two-story Key West-style home.  He stated he works for the fire department and he does not plan to cause any harm to anyone; and he has devoted his life to doing the opposite of that. 

 

Commissioner Anderson requested Assistant County Attorney Christine Lepore explain what a quasi judicial hearing is and how finding of fact plays into the Board’s decision; stated there was some mention of the character of the neighborhood and a petition; and from his past experience, those cannot be considered finding of fact unless there are points provided.  Ms. Lepore advised the hearing is quasi judicial, which means the Board’s decision must be based on competent and substantial evidence; both the Comprehensive Plan and the Code that are applicable to the proceeding set forth certain criteria for consideration; and consideration is allowed for the character, the surrounding property, the historical development patter, the potential impact on the neighborhood and the quality of life in the neighborhood.  She stated the information the Board can consider in applying those criteria are basically factual testimony provided by the neighbors, as well as any expert testimony that has been offered. 

 

Commissioner Anderson stated the Board walks a fine line with the requests; it is one of the few times the Board sits as elected officials that it has to take complete emotion out of consideration; stated he cannot take into consideration how long someone has lived in the neighborhood; however, he will defer to staff regarding flooding.  He inquired if the Board takes drainage into consideration when looking at rezonings.  Mr. Enos replied no, the drainage regulations are part of the land development Code, which is a different part of the Code than the Zoning regulations; the drainage regulations are designed to manage drainage as best as possible; and the structure, regardless of if it is a house or a duplex, would have to meet the land development codes.  Commissioner Anderson inquired how the Planning and Zoning Board ruled on the request; with Mr. Enos responding the Planning and Zoning Board recommended approval with a 9:2 vote.  

 

Commissioner Infantini stated she applauds Mr. Helton for seeking the rezoning before he purchased the land; typically, properties are valued based on their ability to be built or not built; and she is concerned about somebody buying in a neighborhood knowing the lot next door is not buildable and purchasing the property before acquiring a variance or rezoning. 

 

Commissioner Fisher inquired why a variance is applied for before a rezoning.  Mr. Enos replied under  the  current  zoning,  the  property  is not  buildable  because the  lot is undersized for the zoning classification; the property is currently zoned multi-family; the request is for a single-family classification, which requires a 7,500 square-foot lot; and since the lot does not qualify for that classification, and since the lot is a non-conforming lot of record, in order to qualify for the RU-1-13, a variance would be necessary.  He stated there would not have been any point in coming to the Board first for the rezoning when without the variance, it does not qualify; the applicant went to the Board of Adjustment and received a variance from the lot dimension requirements; and a variance to the side setbacks were denied.

 

Commissioner Fisher stated it is confusing to him that someone would be asking for a variance change on something that has not yet been rezoned.  Mr. Enos stated that is true in most cases, but there are circumstances where this happens; and it is rare, but it does happen.  Commissioner Fisher stated when he was briefed by staff it was his understanding that the request to single-family would benefit the neighborhood; and now he understands a multi-family home could not be built on the lot anyway.  Mr. Enos noted the lot is zoned for multi-family, but by itself it is not big enough for a multi-family structure; without asking for any zoning application, it is conceivable the lot could be combined with other lots to gain the needed size, then a duplex could be built. 

 

Commissioner Anderson stated he also did not understand that additional land would have to be accumulated to build multi-family; and he was under the same impression as Commissioner Fisher that the rezoning would benefit the neighborhood. 

 

Motion by Commissioner Anderson, seconded by Commissioner Infantini, to deny Item V.B.5.  Motion carried and ordered unanimously.

 

 

V.B.6. (Z0901101) – Sunlake, LLC’s request for a change from GU to RU-1-11 on 19.048 acres, located on the northwest corner of Parrish Road and Singleton Avenue, which was recommended for a approval by the Planning and Zoning Board.

 

Commissioner Infantini inquired if the property is next to environmentally sensitive land; and she believes in 2006 EELs purchased approximately 45 acres.

 

David Dyer stated the subject property is not part of the EELs purchase; there is property to the west that was considered by EELs.  Commissioner Infantini stated she thought the land to the west that was sold by the Genoni’s to the County in 2006 was environmentally sensitive with eagle nests on it and Indian burial grounds; and the subject property is in close proximity to the property purchased by EELs.

 

Chad Genoni stated the property that was sold to the County is further to the west by several hundred feet; but it is in the general vicinity.  Commissioner Infantini stated if the property to the west is environmentally sensitive, she is concerned about making a zoning change on property in close proximity.  Mr. Genoni advised there are no environmental issues on the subject property.  Commissioner Infantini inquired if there is an environmental analysis on the property.  Mr. Enos replied he believes there was a possibility of some wetlands on the property, but he does not it would be to the extent that it would eliminate development totally on the property. 

 

Chairman Nelson inquired if the property that was sold to the County is on the south side of Parrish Road; with Mr. Genoni responding yes.  Chairman Nelson stated there is a residential development to the northwest. 

 

Darcie McGee, Natural Resources Management, stated ONR did a preliminary environmental investigation, which is standard for all rezoning requests; it looks like there could be wetlands on the site; however, that does not necessarily preclude the owners from development, as the wetlands could be worked around; and there are some impacts allowed for subdivision development, but there cannot be on-lot impacts.  Commissioner Infantini stated the Natural Resources assessment also shows there may be gopher tortoises present on the property.  Ms. McGee advised the developers would permit through Florida Fish and Wildlife Commission; and most likely the gopher tortoises would have to be avoided or relocated, as they are not allowed to be entombed anymore. 

 

Commissioner Infantini inquired how many units would be able to be built on the subject property is the rezoning is approved.  Mr. Enos replied it would depend upon how much wetland there would end up being; but if there is no wetlands, then there could be a maximum of 72 units, but likely less than that.  He noted the applicant is requesting a total of 50 lots.

 

Commissioner Infantini inquired if there are schools available in the area.  Planning and Zoning Director Robin Sobrino advised there is adequate school capacity.

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to approve Item V.B.6. as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

Item V.B.7. (Z0901102 - Timothy J. and Jennifer Crane’s request for a change from GU to AU on 2.09 acres, located north of Date Palm Street, east of Pine Street, which was recommended for approval by the Planning and Zoning Board.

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to approve Item V.B.7. as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

Item V.B.8. (Z0901103) – Nicholas G. Rinaldi’s request for a CUP for a Tower and Antenna in AGR and GU classifications on 12.71 acres, located west of Blounts Ridge Road, north of Aurantia Road, which was recommended for approval by the Planning and Zoning Board.

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to approve Item V.B.8., as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

Item V.B.9. (Z0901104) – Harley Gutin’s request for an amendment to an existing BDP in RP and RU-2-10 classifications on 0.86 acre, located east of U.S. 1, south of Broadway Boulevard, which was recommended for denial by the Planning and Zoning Board. 

 

Chairman Nelson stated he does not have an issue with the request other than that the BDP be amended to include only residential improvements in the areas being proposed to extend; and it is his understanding that all Mr. Gutin is planning to do.  Commissioner Fisher stated he had the same concerns.

 

Harley Gutin advised he is adding a garage and game room; and it will be residential only. 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to approve Item V.B.9. limited to residential only.  Motion carried and ordered unanimously.

 

 

Item V.B.10. (Z0901105) – TCLM, Inc. requests a change from TU-1 to BU-1 on 0.918 acre, located on the northeast corner of Secluded Way and U.S. 1., which was recommended for approval by the Planning and Zoning Board. 

 

Motion by Commissioner Infantini, seconded by Commissioner Bolin, to approve Item V.B.10., as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

V.B.11. (NMI90101) – Vincent P. and Fannie D. Ugarte’s request for a change from AU to RR-1 on 1.44 acres, located south of Crisafulli Road, east of Judson Road, which was recommended for approval by the North Merritt Island Special District Board.

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to approve Item V.B.11., as recommended by the North Merritt Island Special District Board.  Motion carried and ordered unanimously.

 

 

V.B.12. (NMI90102) – JRH-One, LLC requests a change from IN(L) to RR-1 on 237.88 acres, located on the north side of Hall Road, east of S.R. 3., which was recommended for approval as AU instead of the RR-1 originally requested by the North Merritt Island Special District Board.

 

Zoning Manager Rick Enos advised a few years ago the property was zoned AU; it was owned by Teen Missions, which was a religious organization; and a few years ago, the Board created the IN(L) classification, which is an institutional classification, and took certain uses out of the AU zoning classification.  He noted as part of the creation of that classification, the Board directed staff to initiate Administrative Rezoning on all the parcels that were made non-conforming by that Code amendment; staff proceeded to find the parcels in the County that were zoned AU at that time and rezone them to Institutional Use; and the subject property was one  of those.   He stated  unfortunately, at  the time  staff  was  going  through that process, the property was sold without staffs knowledge; and it was later learned that the property should not have been administratively rezoned.  He stated the County spoke to the property owners and offered to rezone it back to AU; the owner asked staff to hold off on the AU zoning, as they were making application for the RR-1 zoning; and that is how the property got to where it is today.

 

Chairman Nelson stated he spoke the Rochelle Lawandales, who represents the applicants, and he also spoke to Kim Wheeler, and Susan Smith.  Commissioner Anderson noted he also spoke to Ms. Lawandales.  Commissioner Infantini stated she spoke with Ms. Lawandales, but it was her understanding the item would be pulled, so she has not done any research.  Chairman Nelson stated he would like to explain the tabling rule; historically, the Board has responded favorably to requests to table items that were inside seven days of the public hearing; the policy is that tabling is automatic if the request is made seven days in advance; and anything less than that, the Board has to approve.  He stated there may be some actions the Board can take that get to a point that he calls a do-over; the property was AU, then it was inappropriately rezoned as IN(L); and he believes if the Board rezones the property back to AU, then it is back to where it started, which is what the applicant is entitled to; and if the applicant would like to consider other changes to that, they can go through the process. He noted because it was the County that made the initial mistake, he would recommend a refund of the application fee because he does not feel good about having the applicant pay for something the Board created.  He stated rezoning to AU gets the property back to where it was; the applicant would have to go back through the rezoning process and meet with the homeowners before submitting plans; and if the applicant chooses to apply for rezoning, they would have to pay the fee and go through the same processes. 

 

Kim Wheeler stated there are a lot of people present that were hoping to talk about higher density on the property; but it sounds like the Board would not be willing to hear a determination on the higher density and just restore the property back to AU; and inquired if that means the applicant can come back to the North Merritt Island Special District Board as early as March and request a change from AU to RR-1.  Chairman Nelson replied the applicant has the ability to request whatever they want.  Ms. Wheeler inquired if the Board is not putting a time limit on the request.  Chairman Nelson advised only items that have been denied have a time limit of six months; but items that have been approved can come back immediately.  Mr. Enos advised it is a three month process; and it is conceivable that it could come back as early as April or May.  Chairman Nelson advised he has encouraged the applicants to meet with the neighbors; stated he believes there is a need for clarity of purpose in the request.

 

Richard Loewenstein stated he is wondering if the applicant could share what their intentions are in the long range.  Chairman Nelson stated he cannot speak for Ms. Lawandales, but it was his understanding that that would probably occur and that they would come back to the Board with those intentions; and that should be a discussion that occurs with the North Merritt Island Homeowners Association and the Special District Board. 

 

Jack Ratterman stated he represents the North Merritt Island Homeowners Association, which has 3,500 members from the Barge Canal to the NASA gate.  He stated he would like the Board to realize that anything affiliated with Mission Estates is not affiliated with Teen Missions whatsoever; it is for profit and there is no religious connection.  Mr. Ratterman advised according to the St. Johns River Water Management District’s letter dated August 28, 2008, says the project is located east of the KSC on Merritt Island next to the National Wildlife Refuge; to the north and west are single-family residences; the south side is bordered by Hall Road, which has several other subdivisions; and it is one mile north of the Indian River Lagoon, which is classified as an aquatic preserve. 

 

Commissioner Fisher stated it sounds like the Board is getting into discussions it probably should not have today, as the applicant is not asking for a zoning change today.

 

Mr. Ratterman stated everyone has come to the meeting tonight, and they are going to have to come back later.  Chairman Nelson stated the Board’s dilemma is if it denies the rezoning, the property remains Institutional and there will still be a mistake; and that is why the Board is trying to get the property back to what it was.  Commissioner Fisher stated the homeowners win today because the Board is not hearing the item and it will be rezoned to AU. 

 

Susan Smith stated she does not have any questions at this time.

 

Commissioner Anderson stated the applicant’s ability to reapply for rezoning is not a County rule; everybody has a constitutional right to petition the government; and the Board cannot stop that. 

 

Commissioner Fisher stated he would encourage the applicant to talk to the HOA before coming back to the Board.

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to approve Item V.B.12., as recommended by the Planning and Zoning Board; and approved refund of rezoning application fees.  Motion carried and ordered unanimously.

 

 

Rochelle Lawandales, representing the applicant, stated the applicants are agreeable to reverting back to the AU zoning; and if reapplying for a rezoning, she will meet with the NMIHOA; but she does not know when that will be.

 

 

Item V.B.13. (NMI90103) – Cary Pond’s request for a CUP for Alcoholic Beverages for On-Premises Consumption in a BU-1 zoning classification on 2.98 acres, located on the northwest corner of Crisafulli Road and Courtenay Parkway, which was recommended for approval by the North Merritt Island Special District Board. 

 

Motion by Commissioner Fisher, seconded by Commissioner Infantini, to approve as an accessory to restaurant use only.  Motion carried and ordered unanimously.

 

 

Item V.B.14. (Z0901401) – Club Rio, LLC requests a change from GU & AGR to BU-1 and a change from GU to EA on 15.16 total acres, located west of U.S. 1, north of Friendship Place, which was recommended for approval by the Planning and Zoning Board.

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to approve Item V.B.14., as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

Item V.B.16. (Z0811101) – Brevard County Board of County Commissioners on its own motion and pursuant to Policy 15.2 of the Future Land Use Element of the Brevard County Comprehensive Plan, has authorized that the following be considered for administrative rezoning:  Property owned by Brevard County, to change from GU, GML, and GML(H) to all GML(H) on 234.68 acres, located west of Adamson Road, north of S.R. 524, which was recommended for approval by the Planning and Zoning Board and by the Board of County Commissioners at its December 4, 2008 meeting. 

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to approve Item V.B.16., as recommended by the Planning and Zoning Board and by the Board of County Commissioners at its December 4, 2008 meeting. 

 

 

Chairman Nelson called for a public hearing to consider an ordinance removing crematorium use from AU and AGR Zoning Classifications and adding said use to the Institutional Use Zoning Classification. 

 

There being no objections heard, motion was made by Commissioner Bolin, seconded by Commissioner Anderson, to adopt Ordinance amending Chapter 62, Land Development Regulations,” Code of Ordinances of Brevard County, Florida; amending Article VI, Division 4, Subdivision II, Sections: 62-1333(1)(B), 62,1334(3), Subdivision IX, Section 62-1573(1) and Division 5, Subdivision II, Section 62-1834; and deleting Article VI, Division 5, Subdivision III, Section 62-1924 for the purpose of removing crematorium use from the AGR and AU Zoning classifications, adding as a Permitted with Conditions Use “Crematoriums” within the Institutional Use Zoning Classification, modification of Permitted Use with Conditions criteria and the removal of the Conditional Use Permit Provisions for Crematoriums; providing for conflicting provisions; providing for severability; providing for area encompassed; providing an effective date; and providing for inclusion in the Code of Ordinances of Brevard County, Florida.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Infantini, seconded by Commissioner Bolin, to appoint James Rosasco to the Internal Audit Committee, with term expiring December 31, 2009.  Motion carried and ordered unanimously.

 

 

Commissioner Infantini stated her staff has prepared a new resolution to provide the Board; and inquired if the Board would like to adopt the Resolution at this time.  Chairman Nelson suggested the County Attorney review the resolution; and in anticipation of its adoption the Board can bring in the members.

 

 

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to approve the cost of advertising for, and the scheduling of a private executive session February 17, 2009, at 11:30 a.m. or as soon thereafter as possible, pursuant to Section 286.011(8), Florida Statute, in the case of Palm Bay v. Brevard County, et al, Case No. 05-2005-CA-024646-XXXXX-XX, for the purpose of discussing settlement negotiations or strategy related to litigation expenditures.  Motion carried and ordered unanimously.

 

 

Ed Lyon, Permitting and Enforcement Director, advised at the February 3, 2009 meeting the Board asked that staff meet with the applicant for the Waters Mark Subdivision and try to work out some of the issues; staff was able to review the plans that were submitted prior that week; and staff agrees with the plans and revisions that have been proposed.  He noted there are a few engineering details that still need to be worked out, but the engineer has volunteered to do that; based on the revised engineering, the overall cost of the project should come down; and the contractor has provided staff with a cost of $436,000 to complete the plans.  He stated it is his understanding the developer has been working up to the last minute to come up with some other engineering modifications; but he does not know all the details.  He advised staff has looked at the cost and still has some questions or concerns; the contracted price is $436,000; if staff were to put it out to bid, it would be approximately $500,000 to $525,000; and so there is a little bit of a difference there.  He noted yesterday afternoon he learned the landscaping is also not bonded to meet County requirements; and Natural Resources Management estimated a cost of $200,000 to put in trees.  He stated the applicants believe they are above the requirements; staff may be able to reduce some of the tree requirements because they have a much lower price; and the applicant has a bond with the St. Johns River Water Management District to do some wetland mitigations that are required.  He stated some of the $236,000 may be also included in the landscaping for the wetlands; staff did not have time to figure out all the details; but the process has been started to contact the back and do what is needed to make sure the bond is there. 

 

Chairman Nelson inquired of the total between the County’s estimate and the contractors estimate for all the issues.  Mr. Lyon replied with the construction of the infrastructure, the contractor is at $436,000; staff believes it will cost closer to $525,000; and that is approximately a $90,000 difference.  He advised Natural Resources Management gave an estimate of $236,000 for the landscaping; and some of that may be included in the $180,000 that they bonded with St. Johns River Water Management District for the wetland creation; but he does not have specifics for that. 

 

Chairman Nelson inquired at what percent is the contractor based on those numbers.  Mr. Lyon responded the bond that staff has proceeded with calling is $505,000; even at the $436,000 estimate, the contractor is short of the 125 percent, which he would prefer they provide.

 

Jake Wise, representing the applicant, stated he has been in this work for 15 years and he has never been in a situation like this; and based on discussions with County staff, he does not think they are excited about taking over the project.  He stated he thinks the contractor is getting close to a comfort level that it is possible the project can be finished and the County will not have to take it over; and he knows Chairman Nelson does not want anymore headaches with the project.  He stated the contractor is willing to put some timeframes on what is going to be offered; stated he thinks it will take the contractor less than 30 days to work out final bonding, and final engineering; but he would like to ask for 30 to 60 days to be able to do that to be able to make sure everything is worked out and that everybody is comfortable moving forward.  He advised if for any reason the contractor cannot do that, he will be back before the Board; once it is worked out, the contractor can go back to work and put a time limit on it of 120 to 150 days to make sure the project gets done and to make sure it gets done per approved final plans with the County; and he wanted to make sure that offer was extended to the Board.

 

Rick Waelti, Sr., stated his company is willing to put up the additional bond providing that it is allowed to finish the project to give the County the statutory comfort that is needed per the tri-party agreement; and he is respectfully asking the Board to entertain a motion that he has 60 days to put this together, and that the project is completed in 120 days contingent upon his providing the additional surety to satisfy the requirements for the tri-party agreement, and that the Board renew the agreement.

 

Chairman Nelson stated he would like to see the project finished, but he is not ready to go 60 days; but he would recommend the Board allow 45 days to resolve the issues and get everything in place; and then allow 120 days to finish the project. 

 

Commissioner Fisher stated it was his understanding the Board will not be doing any draws in that 120 day period.  Chairman Nelson stated if it is covered a full 125 percent with the additional bond, then draws can be done.  Mr. Lyon recommended no draws be paid until after all the bonds are in place because if the County draws down now, it is just potentially getting farther behind.  Chairman Nelson noted once the bonds are in place, the developer would be entitled to appropriate draws as they would have routinely.  Mr. Lyon stated staff has always told the developer that once there was 125 percent of the bond in place, it would release any amount over that. 

 

Commissioner Fisher stated he would like to add to the motion that the bonding company is acceptable to the County.  Chairman Nelson stated it will have to be brought back as a package for the paperwork because the Board has already put a claim on it; and the Board will have to work out a new bond with the bank.  Mr. Lyon stated staff will work on that from a legal perspective with Assistant County Attorney Eden Bentley; and the first Board meeting 45 days from now, staff will bring the bonds back to the Board for acceptance. 

 

Assistant County Manager Mel Scott stated he would like to clarify for the record that draws will occur as the work is verified completed.  Commissioner Fisher stated the other day there was a draw of $45,000 being requested because the developer had not been paid yet; and he is assuming that should have been paid when the work was completed.  Mr. Lyon stated whether or not the work the developer asked to be paid for is completed is not being disputed; the County has already signed off on that; and the reason additional funds were not released was because there was not 125 percent in the bond.  Chairman Nelson inquired if that amount is calculated in the current number.  Mr. Lyon stated staff would make sure that number is included within the timeframe of when the developer comes back. 

 

Chairman Nelson passed the gavel to Vice Chairman Bolin.

 

Motion by Commissioner Nelson, seconded by Commissioner Anderson, to approve proceeding with staff resolving the issue of bringing the bonds back to the Board within 45 days, with 120-day completion for Waters Mark Subdivision; and approve the additional surety to get back up to the 125 percent.  Motion carried and ordered unanimously.

 

 

Vice Chairman Bolin passed the gavel back to Chairman Nelson. 

 

 

 

Upon motion and vote, the meeting adjourned at 6:30 p.m.

 

 

 

ATTEST:                                                                     _________________________________

                                                                                    CHUCK NELSON, CHAIRMAN                                                                                                                                   BOARD OF COUNTY COMMISSIONERS

                                                                                    BREVARD COUNTY, FLORIDA

____________________

SCOTT ELLIS, CLERK

         

          (S E A L)