MINUTES OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS

BREVARD COUNTY, FLORIDA

 

 

December 6, 2007

 

 

 

The Board of County Commissioners of Brevard County, Florida, met in regular session on December 6, 2007, 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, Helen Voltz, Mary Bolin, and Jackie Colon, Assistant County Manager Mel Scott, and Assistant County Attorney Morris Richardson.

 

 

The Invocation was given by Chairman Truman Scarborough. 

 

 

Commissioner Chuck Nelson led the assembly in the Pledge of Allegiance.

 

 

 

Chairman Scarborough stated Zoning Manager Rick Enos has provided a list to assist the Board; and the items shown in red have been recommended to be tabled by the Planning and Zoning Board. 

 

Item VI.B.2.  (Z0711502)  John M. Gayden, Jr.’s request for change from RU-1-11 to RP on 0.84 acre located on the east  side of A1A, south of Poinsetta Street, which was recommended by the Planning and Zoning Board to be tabled to the December 10, 2007 P&Z meeting. 

 

Motion by Commissioner Bolin, seconded by Commissioner Voltz, to table Item VI.B.2 to the December 10, 2007 P&Z meeting and the February 7, 2008 Board of County Commissioners meeting as recommended.  Motion carried and ordered unanimously. 

 

 

Item VI.B.5.  (Z0711103)  Four Communities Fire Department, Inc.’s request for Small Scale Plan Amendment to change the Future Land Use designation from NC to CC, and zoning from RU-1-13 to BU-1 on 0.81 acre located on the northwest corner of Macy Drive and Brentwood Drive, which was recommended by the Planning and Zoning Board and the Local Planning Agency to be tabled to the December 10, 2007 P&Z meeting and the February 7, 2008 Board of County Commissioners meeting as recommended. 

 

Motion by Commissioner Bolin, seconded by Commissioner Voltz, to table Item VI.B.5 to the December 10, 2007 P&Z meeting and the February 7, 2008 Board of County Commissioners meeting as recommended.  Motion carried and ordered unanimously. 

 

 

Item VI.B.7.  (Z0711401)  E. Michael and Leslie C. Malone’s request for Small Scale Plan Amendment to change the Future Land Use designation from NC to CC, and zoning from RU-1-13 to BU-1 on 0.72 acre, located on the west side of U.S. 1 north of Allen Hill Avenue, which was recommended by the Planning and Zoning Board and the Local Planning Agency to be
tabled to the December 10, 2007 P&Z meeting and the February 7, 2008 Board of County Commissioners meeting as recommended. 

 

Motion by Commissioner Bolin, seconded by Commissioner Voltz, to table Item VI.B.7 to the December 10, 2007 P&Z meeting and the February 7, 2008 Board of County Commissioners meeting as recommended.  Motion carried and ordered unanimously. 

 

 

 

Assistant County Attorney Morris Richardson requested permission to schedule and advertise  an Executive Session on December 13, 2007 at 2:30 p.m. or as soon thereafter as possible to discuss matters concerning LaCourt vs. Brevard County.  He stated the case is an appeal of a CUP for Alcoholic Beverages denial on Merritt Island; and there has been a settlement offer.

 

Motion by Commissioner Voltz, seconded by Commissioner Bolin, to grant permission to schedule and advertise an Executive Session on December 13, 2007 at 2:30 p.m. or as soon thereafter as possible to discuss matters concerning LaCourt vs. Brevard County.  Motion carried and ordered unanimously.  

 

 

Commissioner Colon inquired what time is the workshop on December 13, 2007; with Mr. Richardson responding 1:00 p.m.  Commissioner Colon inquired if the Board believes the workshop will only take an hour and a half.  Mr. Richardson responded it is believed that the workshop will take longer; there is already an executive session scheduled on another item at 2:30 p.m. or as soon thereafter as possible; and it was scheduled at that time so that if the workshop is done by that time, the Executive Session can start, but they recognize it might be later.   

 

 

 

Chairman Scarborough called for the public hearing to consider tabled items or the recommendations of the Planning and Zoning Board made at its November 7, 2007 meeting, as follows:

 

VI.A.1. (Z0708403) Ronald D. & Norma D. Levy & Casabella Development, LLC’s request for Small Scale Plan Amendment (07S.15) to change the Future Land Use designation from Neighborhood Commercial to Community Commercial, and zoning from BU-1-A and RU-1-11 to BU-1 on 6.35 acres, located on the west side of Wickham Road, north of Casabella Place, which was recommended by the P&Z Board and the LPA for denial. 

 

Commissioner Bolin stated the Board discussed tabling this item at the last meeting, but it was not clear in the Minutes.  She stated she would like to clarify for the record it is being tabled to February 7, 2008. 

 

Chairman Scarborough inquired if anyone wishes to comment on the tabling; and no response was heard.

 

Motion by Commissioner Bolin, seconded by Commissioner Voltz, to table Item VI.A.1 to the February 7, 2008 Board of County Commissioners meeting.  Motion carried and ordered unanimously. 

           

VI.B.1. (Z0711501) Daniel R. & Colleen G. Anderson’s request for change from RU-1-9 to RR-1 on 1.21 acres, located on the east side of Arizona Street, south of Miami Avenue, which was recommended by the P&Z Board for approval. 

 

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item VI.B.1 as recommended by the P&Z Board.  Motion carried and ordered unanimously. 

 

 

VI.B.3.  (Z0711101) Lahinch Land Partners, LLC’s request for 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 by the P&Z Board for approval. 

 

Chairman Scarborough inquired how many people are present for this item; with a majority of the room indicating interest in the item.  He stated he has received a request to table the item from Attorney Kim Rezanka who has been retained by the homeowners; and it is his understanding the applicant objects to the tabling.  He recommended the Board either hear the item or table it.

 

Commissioner Voltz stated this is a dilemma the Board has not had before; and requested an opinion from Mr. Richardson.  Assistant County Attorney Morris Richardson advised the Board has the ability to consider whether the item should be tabled or heard tonight.    

 

Chairman Scarborough stated it is his inclination to allow the homeowners time to work with their attorney and work out the issues; he dislikes hearing things in bits and pieces; but people came tonight to speak, so it can be done either way.  He stated he would be willing to entertain a motion to table.  The audience indicated preference for the item to be tabled.

 

Motion by Commissioner Voltz, seconded by Commissioner Bolin, to table Item VI.B.3 to February 7, 2008 Board of County Commissioners meeting.  Motion carried and ordered unanimously. 

 

 

Commissioner Colon inquired if the people who are present will be meeting with the applicant before February 2008.  Chairman Scarborough stated he likes to see things like that happen.   

 

John Kamin stated he understands the item was tabled; he is an owner of Lahinch Land Partners; and they have been before the Board before.  He stated they have substantial holdings in Commissioner Scarborough’s District; they sent a letter opposing the tabling; but they understand the Board’s decision.  He stated this application is almost 30 months old; it has been up to the Special Magistrate; they then agreed to table it pending the decision and study of

the Mims Small Area Plan; and they have since amended their application to be in conformance with the Mims Small Area Plan.  He stated they have met with the residents on numerous occasions, as recently as 2:30 p.m.; and they accept the Board’s decision and are willing to go forward; but requested, since this has been going on for two and a half years and they have amended their application to meet with what the County has said is appropriate zoning, that there be no further tablings.  He stated three years is sufficient to try to work things out. 

 

Chairman Scarborough stated he appreciates that.

 

Commissioner Voltz stated she knows Ms. Rezanka represents the homeowners; and inquired if Ms. Rezanka will meet with the applicant with the homeowners’ issues.  She stated she wants to be sure about the legal issues.  Mr. Kamin stated the request came in yesterday at 3:30 p.m.; he found out about it this morning when he was already on the airplane coming down; so it is aggravating, but they understand and are willing to try to do what they have to do.  Attorney Kim Rezanka advised she was just retained by the homeowners yesterday, but she will work with Mr. Kamin, to whom she spoke this morning.  She stated Mr. Kamin had a meeting set, but she could not attend; they met; and there is room for compromise; but they also need to get an expert appraiser. 

 

Chairman Scarborough stated there are some fundamental legal issues; he met with the homeowners; and he is not going to give an assurance that this item will receive his favorable vote.  He stated if certain information evolves that appears that there may be too great a deterioration of value that violates the basic rules, even though both sides are meeting does not necessarily mean he will see this as receiving his support.  He noted he has already talked to certain experts.

 

Commissioner Colon stated this has been tabled a number of times; with Chairman Scarborough responding that is not the case.  Commissioner Colon stated she is hearing from the folks that they have met a number of times, but the attorney is saying she was just hired yesterday, so she will have to be brought up to par.  She stated when the folks meet they will need to make sure that the County is represented to hear the discussion; and inquired if Mr. Enos is going to be present or will the meetings be happening in Commissioner Scarborough’s office.  Mr. Kamin stated he would be happy to have the Commissioner’s office facilitate the meetings; and Commissioner Scarborough has probably been given some different information from what the facts are.

 

Chairman Scarborough stated it is premature to determine some of these factors; he has information he would like to bring forward as well; but the Board has determined it wants to table this so there is plenty of time to work.  He stated his office always likes to become involved in issues within District 1; he has no desire to table this again; and he is going to be voting it up or perhaps voting it down. 

 

Ms. Rezanka stated she will work with the applicant and if necessary, if they have information to share with the Board, they will do that as they have in the past. 

 

Commissioner Colon stated she just wants to make sure when it comes back to the Board that every side has been heard and that it is not just between the applicant and the homeowners; the County should be involved whether through the District 1 office or the Zoning Department; and they want to make sure that the requests are not something that are unreasonable or that the developer is not being unreasonable.  She stated she wants to be sure someone is representing the County; it will not just be Commissioner Scarborough voting, but the five Commissioners; Commissioner Scarborough knows the history; there were plenty of meetings before Ms. Rezanka was hired; but they are also wanting to make sure that someone from the County is present. 

 

Mr. Kamin stated he will welcome that, especially since they have been the Special Magistrate who sent it back down to the Board; and they are happy to involve whoever the Board would like. 

 

 

Marlene Adams stated the last time she spoke she asked why there were no evening regular meetings; her comments were met with somewhat of an attempt to discredit her by producing a list of 17 meetings that were held in the evening this year; but like many statements by some members of the Board the whole truth was not stated, and she was not allowed to come up and speak again or rebut.  She stated it appears that only entities that do business with the County or stand to gain from the Board’s decisions are allowed to rebut; but it would be nice, if something is said, for the Board not to always get the last word and the people have to come back later to rebut.  She stated she found that of the 17 meetings that were announced, none of them were regular meetings, much less tax increase meetings; they were strictly budget or zoning meetings; and of the 17 three were before 5:00 p.m., 14 were at or after 5:00 p.m., nine were zoning, two were budget, two were workshops, and one was a West Melbourne meeting.  She stated she does not appreciate the effort on the part of certain Board members to discredit her when she is probably more informed than many citizens who speak before the Board; and those tactics are an obvious attempt to confuse, humiliate, discredit, and discourage public input.  She stated a constant reminder is necessary that the Commissioners are elected to work for the people, not the vendors, and especially not a vendor who stands to gain the largest contract in this County.  She stated it is disheartening that people such as her are made to feel intimidated when speaking before the Board; and the information that the people have to present may not be to the Board’s liking but it still does not justify intimidation.

 

Chairman Scarborough stated the Board is making up for lost time as it is having two meetings this week and will have two more next week.  He stated people ask why he does not return phone calls, but it is because he does not have time.   

 

 

 

VI.B.4. (Z0711102) Douglas Lee Tolliver’s request for change from RRMH-1 to RRMH-5 on 9.79 acres, located on the south side of Gandy Road, west of Hog Valley Road, which was recommended by the P&Z Board for approval.

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to approve Item VI.B.4 as recommended by the P&Z Board.  Motion carried and ordered unanimously. 

 

 

VI.B.6 (PSJ71101) Suzanna Norris & Shannon Norris’ request a change from GU to AGR on 6.55 acres, located on the northwest corner of Arborwood Avenue and Aspen Lane, west of Leonard Avenue, which was recommended by the Port St. John Dependent Special District Board for approval with the Binding Development Plan, stipulating that an alternate route be established that does not use the neighborhood to access the trails, and to place the security structure as far to the west on the property as possible.

 

Chairman Scarborough inquired how many horses are going to access the trail and where is the mobile home located.  Zoning Manager Rick Enos stated there were two issues at the Port St. John Dependent Special District Board meeting; one was about moving the mobile home as far west as possible; and the other was accessing the trails directly as opposed to running through the neighborhood; and Ms. Norris agreed verbally to both of those.  Mr. Enos stated they do not
have a binding development plan, but that can be developed between now and the next couple of months.  

 

Chairman Scarborough inquired if that is all right; with Suzanna Norris responding it is absolutely okay.  Ms. Norris stated they already opened the trail access off of their property and are no longer using the neighborhood; and she and Mr. Enos discussed putting the mobile home behind the trees, which is where she thinks they will end up putting the mobile home.  Mr. Enos stated it is all right as long as it is as far west as it can be, right on the west setback. 

 

Commissioner Nelson inquired where are the trails and are they riding down into the federal property; with Ms. Norris responding not the federal property.  Ms. Norris stated they are working on trying to get access there but to the south; and riding back there, one can get to Canaveral Groves.  Commissioner Nelson inquired if they are going through the park or through the federal property.  Ms. Norris inquired if Commissioner Nelson means through Fay Park; with Commissioner Nelson responding yes.  Ms. Norris stated it is not through the park; it is behind the park; and there is a trail behind Fay Lake.

 

Motion by Commissioner Voltz, seconded by Commissioner Bolin, to approve Item VI.B.6, with Binding Development Plan.  Motion carried and ordered unanimously.

 

 

Chairman Scarborough stated Mr. Enos is the expert on binding development plans, so Ms. Norris should work with him. 

 

 

VI.A.2. (PSJ71001) Mission Investment Fund Of The Evangelical Lutheran Church’s  request for a Small Scale Plan Amendment (07S.18) to change the Future Land Use designation from Residential 4 to NC, and a change from IN(L) to BU-1-A, on 2.59 acres, located on the southeast corner of Fay Boulevard and Adams Place, which was recommended for approval by the Port St. John Dependent Special District Board for the Small Scale Plan Amendment and for approval with a binding development plan that includes the following conditions:  no residential uses, adult entertainment, arcade or gaming, package liquor store, pool hall, foster or group home, resort dwelling, or coin laundry; and access to the site shall be limited to ingress only on Adams Place, and for approval by the Local Planning Agency. 

 

Carmine Ferraro, representing Mission Investment Fund of the Evangelical Lutheran Church, requested the Board support the unanimous recommendation of the Port St. John Special District and the Local Planning Agency in approving the land use and zoning change as requested.  He stated he is available to respond to questions. 

 

Marlene Adams stated this is not just any rezoning; it is a church that has been empty for at least a year; and that church has been exempted from the fire assessment, but was not exempted from ad valorem taxes in 2007, although it was in 2006.  She requested the Board rezone the property so the County can gain the fire assessment for this piece of property. She stated the approval should be contingent upon charging the fire assessment for 2007 because they had to pay taxes for 2007.  She stated when a tax exempt church such as this gets free taxes, they have to apply for it every year; and it is a lengthy process of paperwork.  Ms. Adams stated when they do not apply, they do not get it; but with the fire assessment, there is no way of knowing whether they have closed their doors or not, which is another problem with the fire assessment.  She distributed paperwork; stated it is from Hernando County; and read aloud, “Because the Hernando County Fire Rescue Department is developed to meet the case law standards for a valid special assessment, any proposed exemption requires special scrutiny.  Because a MSBU special assessment is not a tax, but rather a service related fee, the tax exempt status of government, churches, and charities do not automatically apply.  Any exemption granted, must be based on the fact that either no benefit to the property is provided or that the service fee is already funded through a separate funding mechanism.  The exemption of property contained within the State Forest is the only current example of an exemptible property.  This is due to the annual revenue received from the Florida Division of Forestry, within the Forestry Shared Revenue and Wildlife Shared Revenue transfers to the Hernando County Fire Rescue Department, and the fact that they provide their own firefighting equipment and personnel.  All other property are considered to be non-exempt and those parcels, and buildings are subject to the MSBU fire assessment.”  She stated in the word of the Fire Chief of Sarasota County, “churches burn.”  She stated in Brevard County, churches are not paying for the service; and encouraged the Board to take steps to do something because there is a serious problem. 

 

Chairman Scarborough stated this is part of a whole package of problems the Board is dealing with; he has heard from churches that are upset with assessments; and it is all over the board.  He recommended moving forward with the zoning request but asking Mr. Richardson to give a memo on the questions raised by Ms. Adams. 

 

Commissioner Nelson stated the other part of this is that the property sat vacant but there is no process to review it on an annual basis; and requested Mr. Richardson look into that as part of the response.  He inquired how the County could catch that if the church was empty but they were still not paying the assessment.  Commissioner Voltz stated they would not need the services then either; with Commissioner Nelson advising the building could still burn. 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to approve Item VI.A.2, as recommended by the Port St. John Dependent Special District Board, with a Binding Development Plan including the following conditions:  no residential uses, adult entertainment, arcade or gaming, package liquor store, pool hall, foster or group home, resort dwelling, or coin laundry, and access to the site limited to ingress only on Adams Place; and adopt an 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 2007, 07S.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 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. 

 

 

VI.C.1.  Section 12, Township 25, Range 36, Parcel 758, on 3.12 acres, located on the east side of Courtenay Parkway, south of Elliott Drive, which is owned by Michael C. Moss, and is currently zoned RU-1-13 and EU, is proposed to be rezoned to all EU, and is recommended by the P&Z Board for approval. 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to approve Item VI.C.1, as recommended.  Motion carried and ordered unanimously.    

 

VI.C.2.  Section 12, Township 25, Range 36, Parcel 782, on 2.46 acres, located on the east side of Courtenay Parkway, south of Elliott Drive, east of Plantation Road, which is owned by C. Michael Murphy and Michael A. Farrell, et al, and is currently zoned RU-1-13 and EU, is proposed to be rezoned to all EU, and is recommended by the P&Z Board for approval. 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to approve Item VI.C.2, as recommended.  Motion carried and ordered unanimously.  

 

 

VI.C.3.  Section 12, Township 25, Range 36, Parcel 783, on 0.65 acre, located on the east side of Courtenay Parkway, south of Elliott Drive, east of Plantation Road, which is owned by Charles C. Meilbye and John F. Meilbye, et al, and is currently zoned RU-1-13 and EU, is proposed to be rezoned to all EU, and is recommended by the P&Z Board for approval. 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to approve Item VI.C.3, as recommended.  Motion carried and ordered unanimously.   

 

VI.C.4.  Section 12, Township 25, Range 36, Parcel 784, on 0.76 acre, located on the east side of Courtenay Parkway, south of Elliott Drive, east of Plantation Road, which is owned by Matthew E. and Kelli A. Myland, and is currently zoned RU-1-13 and EU, is proposed to be rezoned to all EU, and is recommended by the P&Z Board for approval. 

 

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

 

 

VI.C.5.  Section 12, Township 25, Range 36, Parcel 785, on 1.71 acres, located on the east side of Courtenay Parkway, south of Elliott Drive, east of Plantation Road, which is owned by Russell W. Martin, and is currently zoned RU-1-13 and EU, is proposed to be rezoned to all EU, and is recommended by the P&Z Board for approval. 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to approve Item VI.C.5, as recommended.  Motion carried and ordered unanimously.  

 

 

VI.C.6.  Section 12, Township 25, Range 36, Parcel 786, on 1.27 acres, located on the east side of Courtenay Parkway, south of Elliott Drive, east of Plantation Road, which is owned by Brian W. Pastermack, and is currently zoned RU-1-13 and EU, is proposed to be rezoned to all EU, and is recommended by the P&Z Board for approval.  

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to approve Item VI.C.6, as recommended.  Motion carried and ordered unanimously. 

 

 

 

Chairman Scarborough called for the public hearing to consider an ordinance amending group home requirements within the Zoning Code to achieve consistency with Florida Statutes. 

 

There being no comments or objections heard, motion was made by Commissioner Nelson, seconded by Commissioner Voltz, to adopt an Ordinance amending Chapter 62, “Land Development Regulations”, Code of Ordinances of Brevard County, Florida; Article VI, Division 5, Subdivision II, specifically amending Section 62-1835.9 Group Homes to comply with State separation distance guidelines for use within residential zoning classifications; amending Sections: 62-1481 Restricted Neighborhood Retail Commercial, BU-1-A, 62-1482 General Retail Commercial, BU-1, 62-1483, retail, Warehousing and Wholesale Commercial, BU-2, and 62-1572 Government Managed Lands, GML to remove the reference to Conditioned Group Home Use; amending Sections: 62-1331, General Use, GU, 62-1332, Productive Agricultural, PA, 62-1334, Agricultural Residential, AU, 62-1334.5 Agricultural Rural Residential RR-1, 62-1337, Suburban Estate Residential Use, SEU, Section 62-1338, Suburban Residential, SR, 62-1339, Estate Use Residential, EU, EU-1, and EU-2, 62-1340, Single Family Residential, RU-1-13 and RU-1-11, 62-1341, Single Family Residential, RU-1-9, 62-1342, Single Family Residential, RU-1-7, 62-1343, Single-Family Attached Residential, RA-2-4, RA-2-6, RA-2-8, and RA-2-10, 62-1334, Residential Professional, RP, 62-1371, Low Density Multiple Family Residential, RU-2-4, RU-2-6, and RU-2-8, 62-1372, Medium Density Multiple Family Residential, RU-2-10, RU-2-12, and RU-2-15, 62-1373, High Density Multiple Family Residential, RU-2-30, 62-1401, Rural Residential Mobile Home, RRMH-1, RRMH-2.5, and RRMH-5, 62-1402, Single-Family Mobile Home, TR-1 and TR-1-A, 62-1403 Single Family
Mobile Home, TR-2, 62-1443, Same Permitted Uses, 62-1463 Same-Rezoning And Permitted Uses, 65-1571, Environmental Areas, EA to relocate group home use from the Permitted Use Section to the Permitted With Conditions Subsection; amending Section 62-1573, Institutional Use, IN(L) and IN(H) to add Group Home Level I use as a permitted with conditions use and to add Group Home Level II use as a high intensity use; providing for interpretation of conflicting provisions; providing for severability; providing for area encompassed; and providing an effective date.  Motion carried and ordered unanimously. 

 

 

 

Upon motion and vote, the meeting was adjourned at 5:31 p.m.

 

 

 

 

 

 

 

                                                                        _____________________________________

TRUMAN SCARBOROUGH, CHAIRMAN

                                                                        BOARD OF COUNTY COMMISSIONERS

ATTEST:                                                         BREVARD COUNTY, FLORIDA

 

 

 

_____________________

SCOTT ELLIS, CLERK

   

          (S E A L)