February 21, 2008 Zoning
Feb 21 2008
MINUTES OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA
February 21, 2008
The Board of County Commissioners of Brevard County, Florida, met in regular session on February 21, 2008, at 5:00 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, and Mary Bolin, County Manager Peggy Busacca, and Assistant County Attorney Morris Richardson. Absent was: Commissioner Jackie Colon.
The Invocation was given by Commissioner Helen Voltz.
School Board Member Janice Kershaw led the assembly in the Pledge of Allegiance.
Chairman Scarborough stated Assistant County Attorney Morris Richardson is going to read a statement regarding the proceedings; there has been a whole series of court cases and extensive discussions; in the regular Board meetings the Board acts within a legislative sense; but a zoning meeting is called Quasi Judicial. He stated if there any questions to ask because it is important to understand the nature of the proceedings.
Mr. Richardson advised the Board acts as a Quasi Judicial body when it hears requests for rezoning and conditional use permits; applicants must provide competent and substantial evidence establishing facts or expert witnessed opinion testimony showing that the request meets the Zoning Code and Comprehensive Plan criteria; and opponents must also testify as to facts or provide expert testimony whether they like or dislike a request as it is not considered competent evidence. He stated the Board must then decide whether the evidence demonstrates consistency and compatibility with the comprehensive plan and the existing rules in the Zoning Ordinance, property adjacent to the property to be rezoned, and the actual development of the surrounding area; the Board cannot consider speculation, non-expert opinion testimony, or poll the audience by asking those in favor or opposed to stand up or raise his or her hands; and each applicant is allowed a total of fifteen minutes to present a request unless the time is extended by majority vote of the Board. He stated the applicant may reserve any portion of the fifteen minutes for rebuttal; other speakers are allowed five minutes to speak; and speakers may not pass his or her time to someone else in order to give that person more time to speak.
AUTHORIZE EXECUTIVE SESSION, RE: LACOURT V. BREVARD COUNTY
Assistant County Attorney Morris Richardson requested permission to advertise for an Executive Session in the matter of LaCourt v. Brevard County regarding a Conditional Use Permit request on March 4, 2008.
AUTHORIZE EXECUTIVE SESSION, RE: BREVARD COUNTY V. LACOURT(CONTINUED)
Motion by Commissioner Voltz, seconded by Commissioner Bolin, to authorize advertising and scheduling an Executive Session for March 4, 2008, to discuss strategy related to litigation regarding LaCourt v. Brevard County. Motion carried and ordered unanimously.
REPORTS, RE: AMENDMENTS TO CONTRACTS WITH BRPH FOR OLIVER’S CAMP
Chairman Scarborough stated Brevard County has two contracts with Brevard Community College (BCC) regarding Oliver’s Camp, which is a house where the regional office of the State archeologist will be located on the BCC campus; and the grant money is going to be lost if the Board does not move expeditiously to have it put in place by June 30, 2008. He advised BRPH does not include the finalization of getting the permits to put it in. He requested the existing contracts be amended for those things not to exceed $87,500. He apologized because he had thought all of the stuff had already been a part of the contracts. He explained it is in the City but it is part of the Chain of Lakes so it has the State involved and permitting is not known to what extent. Commissioner Voltz inquired where the money is coming from. Chairman Scarborough explained it is from the Chain of Lakes thing.
Motion by Commissioner Voltz, seconded by Commissioner Nelson, to approve amending existing contracts with BRPH to allow finalization to get permits for Oliver’s Camp, not to exceed $87,500. Motion carried and ordered unanimously.
ITEMS TO BE TABLED
Zoning Manager Rick Enos stated Items VI.B.3. and VI.B.8. are requested to be tabled to the March 6, 2008 Board of County Commissioners meeting.
Chairman Scarborough called for the public hearing to consider items to be tabled, as follows:
G & D Developers, L.C.’s request for a Small Scale Plan Amendment (08S.03) to change the Future Land Use designation from Res. 1 and Res. 2 to Res.4, and a change from AU to EU on 7.434 acres, located on the east side of U.S.1, approximately 0.17 mile south of Cidco Road, which was recommended to be tabled to the February 22, 2008 Planning and Zoning meeting.
Motion by Commissioner Voltz, seconded by Commissioner Bolin, to table Item VI.B.3. to the March 6, 2008 Board of County Commissioners meeting. Motion carried and ordered unanimously.
William C. Lammers’ request for a CUP for Guest House in an RU-1-11 classification of 0.67 acre, located on the west side of Highway A1A, south of Burdis Road, which was recommended to be tabled to the February 11, 2008 Planning and Zoning Meeting.
Motion by Commissioner Voltz, seconded by Commissioner Bolin, to table Item VI.B.8. to the March 6, 2008 Board of County Commissioners meeting. Motion carried and ordered unanimously.
Mr. Enos stated the applicant has requested that a portion of Item VI.B.9. be tabled and the other portion to be considered today. He stated the property in question is actually in two pieces and can be addressed if the Board wishes. Commissioner Bolin stated the Board will wait and do the items in order.
PUBLIC COMMENT – EVELYN MORRISON, RE: CIVIL RIGHTS LEGISLATION & EDUCATION
Evelyn Morrison stated the Board unanimously voted for her to be on the Planning and Zoning Board; something came across with the recommendation that she wanted to bring to the Boards attention as a citizen that deals with the Civil Rights Act of 2005, titled XLVI or IV; and it deals with discriminatory practices. She stated in that law it speaks to 760.05. Chairman Scarborough stated it is getting into legal stuff; and inquired if Mr. Richardson had a copy of it. Mr. Richardson responded yes. Ms. Morrison stated it was just for the Boards information for a later time because it is on the Agenda for March 10, 2008. She stated in that Civil Rights Act it speaks of land development and of making decisions in sales, rental, and public lands as well so it prevents any type of inequality. She stated she wanted the Board to look at adopting that at a later time as it is where the minority contracts come from and decisions in terms of Affordable Housing and Workforce Housing; and the Fair Housing Law is inside this Civil Rights Law. She asked the Board to look at it because there is going to be further discussion in terms of that. She stated the Board made a decision to approve the Interlocal Agreement with the School Board, the County and the municipalities, which she thinks is commendable because it is time to work together in partnership to look at budgets and overlapping services that may be duplicated; but at the same time look at the partners Civil Rights position. She stated when school bussing and redistricting are discussed it raises a Civil Rights red flag. She stated she wants to be prepared and move forward with those collective decisions to prevent any liability when it comes to making the wrong decision as it has a negative impact on a protected class. She stated her concern is the senior citizens because they can not afford to purchase anything but Affordable Housing. She stated the law is put in place for Affordable Housing and Workforce Housing but yet the law for Fair Housing is not put in place and that is where the discussion begins. She stated she looks forward to asking the Board to create a Civil Rights Workshop and invite all the players to the table to talk about the benefits of Civil Rights in Brevard County because this County has no Civil Rights Legislation and it has invested $30.5 million in the name of Harry T. Moore. Chairman Scarborough stated talking about land development and civil rights together is new to him. He suggested someone from the County Attorney’s office, someone from zoning, Ms. Morrison, and himself get together and discuss Civil Rights with land development.
PUBLIC HEARING, RE: RECOMMENDATIONS OF THE PLANNING AND ZONING BOARD OF JANUARY 7, 2008
VI.B.1. (Z0801101) JOHN HOUCHENS’ request for a change from GU to AU on 40 acres located on the north side of Pluckebaum Road, west of Tucker Lane, which was recommended for approval by the Planning and Zoning Board.
Motion by Commissioner Voltz, seconded by Commissioner Bolin, to approve Item VI.B.1. as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.
VI.B.2. (Z0801102) DAVID W. & MICHELLE E. MURPHY’s request for a change from AU to RR-1 on 1 acre located on the north side of Grantline Road, mile east of U.S. 1, which was recommended for approval by the Planning and Zoning Board.
Motion by Commissioner Voltz, seconded by Commissioner Bolin, to approve Item VI.B.2. as recommended by the Planning and Zoning Board.
VI.B.5. (Z0801201) CP VENTURE FIVE – AV, LLC’s request for a CUP for Alcoholic Beverages for On-Premises Consumption in a PUD classification on 0.028 acre located on Towne CenterAvenue, east of Lake Andrew Drive, which was recommended for approval by the Planning and Zoning Board.
Motion by Commissioner Voltz, seconded by Commissioner Bolin, to approve Item VI.B.5. as recommended by the Planning and Zoning Board.
VI.B.4. (Z0801104) D & E HARDWARE COMPANY’s request for a change from BU-1 to BU-2 on 2.75 acres located on the northwest corner of Roberts Street and U.S.1, which was recommended for approval by the Planning and Zoning Board.
John H. Evans, Esquire stated he did not realize there was opposition to the item; those in opposition asked that the item be tabled to meet to see if they can come up with a Binding Development Plan that is acceptable to them; and his client is willing to do that. Chairman Scarborough inquired if everyone is agreeable to tabling this item. He stated if it is tabled he would like to have a meeting at his office so he can be apart of it.
Motion by Commissioner Nelson, seconded by Commissioner Voltz, to table Item VI.B.4. to the March 6, 2008 Board of County Commissioners meeting. Motion carried and ordered unanimously.
VI.B.6. (Z0801202) GARDEN ISLE, LLC’s request for a CUP for a Recreational/Residential Marina in an RU-2-15 classification on 3.35 acres located on the north side of Crescent Beach Drive, west of Highway A1A, which was recommended for approval by the Planning and Zoning Board.
Commissioner Nelson inquired if there are any letters of objection. Mr. Enos responded there was a concern expressed at the Planning and Zoning Board meeting regarding a boat launc, which is at the end of Crescent Beach Drive, south of the property; it is not in the same location as the docking facility; and it should not affect it at all. Commissioner Nelson inquired if this was addressed at the original rezoning. Mr. Enos stated there was discussion on it and it was clarified that the public boat launch and facility was on the right-of-way of Crescent Beach Drive and not part of this property. Commissioner Nelson stated the CUP does not impact that issue or question. Mr. Enos agreed. Chairman Scarborough stated there was concern from the public that they would not be able to use the ramp and the public would park on their properties.
Commissioner Nelson stated he was not aware there was an issue; and inquired if it has been addressed. Mr. Enos stated it is not a formal boat launching facility; and it is just at the end of the right-of-way. Commissioner Nelson inquired if this action impacts that use in any way. Mr. Enos stated it does not. Commissioner Voltz stated there is an ordinance that says there should be no net loss of boat slips and this is going to being taking them out of the public domain. Mr. Enos stated the facility was used prior to this to park boats of the residents of the previous mobile home park; and it was never a public facility or permitted before as it preceded zoning regulations and was a non-conforming use. He stated they want to legalize this use and use it again, and that is the reason for the Conditional Use Permit application. He understands they do not have a no net policy or an ordinance and the Natural Resources Management office is working on that. Commissioner Voltz stated she thought they had that in the Manatee Protection Plan. She stated she does not want to lose any boat slips. Commissioner Nelson stated it was his understanding the rezoning has been issued on the upland piece; and the Board can not turn it to a commercial marina. Mr. Enos stated that is correct. Commissioner Nelson stated if this had been a functional marina then the question would be different; but not issuing the CUP actually creates the loss of spaces.
Motion by Commissioner Nelson, seconded by Commissioner Voltz, to approve Item VI.B.6. as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.
VI.B.7. (Z0801203) WILLIAM R. & MARY WILLHITE and MARJORIE BELCHER’s request for a Small Scale Plan Amendment (08S.01) to change the Future Land Use from NC to CC, and a change from RU-1-7 to BU-2 on 0.68 acre located on north side of Terrace Street, west of Clearlake Road, which was recommended for approval by the Planning and Zoning Board.
Commissioner Nelson stated there is BU-2 north of the property; if this is approved for BU-2 then that interjects that BU-2 into what is residential; and inquired what is the intended use as a blanket BU-2 will be problematic. Marjorie Belcher stated when they were before the Planning and Zoning they played a video tape; their intent is to sell the property to Coca Cola so they will have to make some improvements to their property; when Coke built the plant there was no regulations or buffers to make them a good neighbor; and before Coke can build anything it will have to go before the Board. Chairman Scarborough stated the problem is this is the Boards only opportunity to determine this as once the property gets a BU-2 the property owner is allowed to do anything the BU-2 allows; and it is better to define some limitations with the BU-2 zoning. Commissioner Voltz stated she would like to see the video. The video was displayed and Ms. Belcher commented on the continuous noise from the Coca Cola plant. Commissioner Scarborough inquired when is there no noise from the plant. Ms. Willhite responded it never stops. Commissioner Voltz inquired why it took so long to do something. Ms. Belcher stated her mother and father lived there; her mother passed away; and she went to the property to clean it up and noticed the problem. Commissioner Nelson stated if Coke was ready to sign a contract then the Board could be looking at a binding development plan that says they have to put up buffers; but the problem is asking the Board to rezone without any of those assurances. Ms. Belcher stated it is never going to get better unless something is done. Mary Willhite stated if Coca Cola is not interested she will end up putting up a warehouse on it to buffer the noise. Chairman Scarborough stated mini warehouses would be excellent. Commissioner Nelson stated if they believe Coca Cola is interested to contact them and they could tell the Board how they would utilize the property; and a binding development plan can be done to protect the neighbors. Chairman Scarborough stated if the item is tabled the owners could get with Commissioner Nelson’s office to get it solved. Commissioner Nelson agreed.
Motion by Commissioner Nelson, seconded by Commissioner Bolin, to table Item VI.B.7. to the April 3, 2008 Board of County Commissioners meeting. Motion carried and ordered unanimously.
VI.B.9. (Z0801401) TIMOTHY STRICKRATH DEVELOPER, INC., requests a Small Scale Plan Amendment (08S.02) to change the Future Land Use from NC to CC, and a change from AGR & GU to BU-2, with removal of a BDP on 6.51 acres, +/- located on the west side of U.S. 1, north of Friendship Place, which was recommended for approval by the Planning and Zoning Board.
Rick Enos stated the applicant is asking the Board to consider tabling the part of the property zoned AGR, and approving the U.S. 1 frontage, which would square the existing BU-1 zoning on the front. Jack Crisafulli stated since the initial application he has changed course and expand the existing landscape depot. He stated he needs the GU out of the holding pattern into the existing BU-2 zoning because it has frontage on U.S. 1. Commissioner Bolin inquired if two separate motions are needed. Mr. Enos stated that is correct. Commissioner Nelson inquired if there was a right-of-way that runs through that property. Mr. Enos responded there does appear to be one. Commissioner Nelson inquired if that creates issues for the use of the other property. Mr. Enos stated it does and if he was the owner he would ask that that be vacated. Mr. Crisafulli advised it has been vacated.
Motion by Commissioner Bolin, seconded by Commissioner Voltz, to approve Item VI.B.9. from GU to BU-2 as recommended; and to adopt Ordinance No. 08-06, setting forth the Second Small Scale Plan Amendment of 2008; and to table change from AGR to BU-2 to the April 3, 2008 Board of County Commissioners meeting. Motion carried and ordered unanimously.
ANNOUNCEMENTS
Commissioner Voltz announced Project Fight Back is going to be held 1:30 p.m. to 3:30 p.m. on Thursday, February 28, 2009 at the Cocoa Beach Hilton, Sawgrass Room in Cocoa Beach. She advised this is for seniors and how to prevent elder abuse, exploitation, prevent burglary and theft, and how to enhance personal safety. She stated for any information call her office at 952-6300.
*Commissioner Colon’s presence was noted.
Commissioner Colon commented on her daughter’s achievement of being on the President’s List, and on celebrating her son’s eleventh birthday.
Upon motion and vote, the meeting adjourned at 5:57 p.m.
ATTEST: _________________________________
TRUMAN SCARBOROUGH, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA
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SCOTT ELLIS, CLERK
(S E A L)