MINUTES OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS

BREVARD COUNTY, FLORIDA

 

 

December 3, 2009

 

 

 

The Board of County Commissioners of Brevard County, Florida, met in regular session on December 3, 2009 at 3:00 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida.
 
Present were:  Chairman Mary Bolin, Commissioners Robin Fisher, Chuck Nelson, and Trudie Infantini, Assistant County Manager Mel Scott, and Assistant County Attorney Christine Lepore.  Commissioner Andy Anderson was absent. 

 

 

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 opinion testimony, or poll the audience by asking those in favor or opposed to stand up or raiser their hands.  If a Commissioner has had communications regarding a rezoning or Conditional Use Permit requested before the Board, the Commissioner must disclose the subject of 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. 

 

 The Invocation was given by David Dingley, Special Assistant to District 4 Commissioner Mary Bolin. 

 

Commissioner Fisher led the assembly in the Pledge of Allegiance.

 

Chairman Nelson stated his staff is working with the State on Blue Crab Cove, on an acquisition; and a question has arisen relating to utilizing State rules or County rules as it relates to the grant in the application and to the acquisition; he stated in talking with the County Attorney, it was suggested that he could get an Attorney General’s Opinion on which rules his staff is supposed to follow in relation to that acquisition. 

 

Motion by Commissioner Nelson, seconded by Commissioner Fisher, to authorize the County Attorney to obtain an Attorney General’s Opinion on which rules need to be followed for the acquisition program in Blue Crab Cove.  Motion carried and ordered unanimously.   

 

 

Chairman Bolin stated that she failed to have the Board vote on the Child Care Committee, and she would like that presented at the December 15, 2009 Board meeting, and she asked that it be put on the Agenda. 

 

 

Chairman Bolin called for a public hearing to consider an ordinance for an alternative development standard for the PUD zoning application.

Rick Enos, Zoning Official, stated that this is the first reading of an ordinance; and the Board had directed staff to prepare this ordinance at the last Workshop.  He stated this is an ordinance that expands the opportunity for alternative development standards in the PUD Zoning Classification, currently the PUD does allow alternative development standards to be proposed for Articles VI and VII, of Chapter 62, which is the Zoning and the subdivision regulations; this Ordinance would propose to expand that to include PUD’s that are also developments for regional impact, changes to include: alternative development standard in Articles II, VIII, IX, and XIII of Chapter 62; he stated this is the first reading; and the second reading is set for the December 15, 2009 Board meeting. 

 

Chairman Bolin stated that it would need to be voted on so that it can go to the second reading.

 

Motion by Commissioner Fisher, seconded by Commissioner Nelson, to continue the public hearing to consider ordinance for Alternative Development Standard for the PUD Zoning Classification at the second reading to the December 15, 2009 Board meeting.  Motion carried and ordered unanimously.     

 

Commissioner Nelson stated he wanted to clarify that the Board had discussion with staff on the wording that would make this ordinance specific to DRI’s that did not throw all PUD’s into it; and inquired if that wording was included in this ordinance; with Mr. Enos responding that is correct. 

 

Duke Woodson stated he was representing his client on the Comprehensive Plan Amendment and Development of Regional Impact (DRI) Substantial Deviation, on December 15, 2009 Planned Unit Development Amendments; the Local Planning Agency (LPA) tabled the PUD amendments, so those will not be discussed today, they will be on the LPA Agenda on Monday, and they will be back before the Board on December 15, 2009; so today’s discussion is on the Comprehensive Plan Amendments and the DRI.  He advised he would like to pick up where they were at the end of the Workshop, and summarize what has happened since the LPA meeting last month on the Comprehensive Plan and the DRI; the Comprehensive Plan that was recommended for approval by the LPA; there have been no changes to that with one minor exception, and that has to do with map seven; and the issue there had to do with a footnote.  He stated if the Board recalls, the issue on map seven that was raised by the Department of Community Affairs and a couple of members of the public; it has to do with the very last sentence of the footnote; and the prior version stated “The rural development district depicted hereon is conceptual in its boundaries may be adjusted administratively.”  He stated the concern was that the Department and several members of the public were worried that they were somehow going to make big changes in the maps without the Board’s review and approval; so they have added language there that should be showing up in the last sentence, which establishes several criteria; he stated the idea on this is 8-1/2 by 11 map is once they get into the field and do survey work, wetland alienation, and look at natural features, there are going to be bumps and wiggles in these lines that may not precisely match; so the idea was they would make adjustments as necessary working with the Board and staff.  He stated that is the only change in the Comprehensive Plan language that was approved by the LPA, and recommended to the Board for approval; everything else remains the same; and although they have had several discussions with the staff, all of those have focused on the Development Order.  He stated with regard to the Development Order, there were several issues at that time that were still flapping around, and he is going to summarize for the Board the revisions that have been made since that day.  He stated they are on version eight of the Development Order.  He stated there are several changes sprinkled through there that have been requested by staff; he does want to highlight a couple issues that were raised by the public; Condition 26, recalling the Workshop, Mary Sphar asked that they add some language, and this also came up at the LPA meeting, they were asked that they add some language dealing with locating a passive park adjacent to the I-95 wetland, and they have done so. He noted Condition 32, that has to do with Accessory Dwelling Units; there were a lot of comments at the LPA hearing, and from different staff departments, so there are some significant changes in the Accessory Dwelling Unit language; he believes they are all on the same page with staff on this issue; and he believes he and his client have made the changes to accommodate the concerns they have heard from LPA, limiting the size of the Accessory Dwelling Units, and limiting the credit that they could get toward their total residential units. He advised Condition 101, is what he calls the Fire Condition; at the Workshop they were still talking to the Fire Department about stations and fire trucks; the Board should see at the end of Condition 101, new language responding to what Mr. Woodson heard from the Fire Department; and he stated they saw one of the Fire Department Representatives earlier, and he believes they are on the same page.  He stated that they have agreed in addition to providing for building fire stations and equipping them, to also buy what are called Mini Pumper Fire Trucks, which the Fire Department needs to get access down the alleys that will be in the new project.  He stated Doug Sphar, at the LPA and at the Workshop, requested that some language be changed having to do with the environmental professional, and they have made that change and agreed to that change; he stated Commissioner Nelson and Commissioner Fisher raised some additional questions about the long-term responsibility of the Viera Stewardship District; and Scott Knox, County Attorney, suggested the idea of a Interlocal Agreement so they have added that language as well.  He noted those are most of the highlights, the issue they have spent most of the time talking to the Board’s staff about; the Department of Transportation are the transportation conditions, and there is new language in Condition 84 that came out of a long discussion they had the day before with the Board’s staff; and that has to do with the timing of when Monitoring and Modeling must be done, and the hard date for the end of the phase.  He stated he appreciates Pastor Dave’s comment about the Heavenly Father watching over them today, because as the Scrivener of the document, there have been so many people watching over him.  Commissioner Bolin stated that she had a feeling it was needed.  Mr. Woodson replied yes, that he was comforted with the prayer, and as recently as 15 minutes ago, John Dennighoff, Public Works Director, pointed out that he missed yet another word in this addition.  He requested for the Board to look at the sentence which starts after December 29, 2015, the County has no obligation to accept complete Phase III building permit applications, until the Developmental Order is amended to extend Phase III completion date; and he stated as many times as he has tried to get this correct, he thinks it is finally correct.  He stated that was a request from staff, dealing with the hard dates for the Phase and for Monitoring and Modeling; the other changes they agreed to 15 minutes ago has to do with Condition 92, and the infamous footnote section; the significant change that The Viera Company has agreed to has to do with the timing of the beginning of the construction of the new Viera Interchange; the Board’s version should read, “Within 30 days of the later of the approval of the building permit for the 1500^th Phase III residential unit, or December 29, 2014, developers shall commence construction.”  He stated County staff did not like that, so what they have agreed to do, is to say, “Will start the construction on or before December 29, 2014, or we will provide a surety, or financial assurances to the Department to extend it another two years.”  He stated all of these other changes are based on discussions with staff and the Department of Transportation.  He stated that summarizes where they have been since the LPA, and to get to the Board tonight; and stated that he would be glad to take any questions from the Board or staff, or hear from the public. 

 

Chairman Bolin stated the Board will now take Public Comments. 

 

Mark Tormoen stated he is the Principal of Viera High School and he is there to comment on The Viera Company and their philanthropic organization, the Viera Futures
Foundation; they have been a great partner to Viera High School; in particular, the network of roads that has been a great asset to Viera High School, and the safety of their students and the parents; and what a great change it has been for them as they have grown from 900 to over 2,000 students.  He stated they are very pleased to work with them and they are a great organization. 

Chris DeLorey stated he represents the Brevard Zoo, and wanted to show his support for The Viera Company; and they have been both great supporters for the Zoo, since the inception of it, and all along with the support as a community partner in the Viera area.  He stated that the Brevard Zoo, as they grew, and along with The Viera Company, they have constantly worked with them directly, even to the extent of allowing them to collect brows for their giraffes on their property recently; small things to large things; they have always been strong supporters of the Zoo; and the Zoo and their staff has always been strong supporters of The Viera Company. 

 

Sharon Savastio stated she is President of Windover Farms of Melbourne, but she is also there not only representing her community, but the community in general.  She stated when the Developmental Order and the DRI first came up between the County and Viera, it was originally looked at for Phase III, is 6,000 residential units, and the County at that point was looking at mitigation payment from the developer in the area of $98 to $110 million; the project was re-vamped, the residential units were dropped to 3,000, and that is obviously half of the project; so it would be expected that the mitigation impact dollars would be reduced by half; but that turned out to not be the case when Florida Department of Transportation (FDOT) got into the mix, things were done a little bit differently; she understands that FDOT has determined that The Viera Company’s responsibility for Phase III will be $31.3 million; and she is concerned about that because based on the information that she has received from the County, the dollar figure was arrived at by FDOT doing the calculation on traffic impact, and reduced or falling real estate costs, as it would apply to purchase of right-of-ways, and falling construction costs.  She advised at that time that was probably a good way to do it, but they are beginning to see the economy turn around, and her concern is the developers obligation was established in an economy that was in full crisis; and by the time the community gets to the point of having to discuss road improvements, the developer was paid with today’s dollars, the community will be paying with tomorrow’s dollars, and when talking about proportionate fair share, she fails to see the equity in that.  She stated she is also concerned about the bi-annual report, and she feels that is a good idea, but the report as she understands it is simply a report, it could report deficiencies, or say that everything is going along fine; her concern would be that The Viera Company consider adding in Monitoring and Modeling to that, and the reason being, the bi-annual report does not have any teeth.  She stated if Monitoring and Modeling are put in it, if there is a deficiency; then Monitoring and Modeling can be used to address the deficiency, if everything is fine, and FDOT’s numbers are good, then they will have lost nothing; and it does not cost the developer anything at that point.  She stated that is one thing she would like to see added into the plan; the other thing she would like to ask is since staff has been working on this document and The Viera Company has been working on this document, and that changed have come in as little as 15 minutes ago, her concern is how can the Board make a decision on this document, when they have not had an opportunity for staff and the Board to fully review it.  She stated rather than make a mistake to consider delaying the decision to the December 15, 2009 Board meeting, until staff has had more opportunity to review it, and possibly avoid some mistakes that have been made in the past; the community looks to the Board guidance and take care of the best interest of the taxpayers; and that is where they are today. 

 

Pamela Rogan stated that she wanted to talk about the community.  She stated that teamwork, responsibility, generosity, and commitment are things that make a community grow and prosper; she can speak first hand about the commitment The Viera Company has for the businesses and families that make up this community; she lives in Suntree, but she works, plays, and shops in Viera; everything that is needed is there, with more to come;  she has friends that live in other areas of the County and State and they complain that new development is a nightmare, because the roads and schools cannot handle it; and there is not that problem in this part of Brevard County due to The Viera Company taking the responsibility for the complete development and beyond, including roads leading to the town, bridges connecting the town, and the schools.  She noted when the fly over opened, more than 50 percent of her volunteers changed their route to the barn, including her.  She noted this resulted in shorter drive times, using less fuel, and saving money; everyone knows all the current emphasis on going green; residential and commercial areas are beautiful, lush, and maintained; and as a result, there is wildlife all around.  She stated knowing she was going to be speaking to the Board, she has been keeping notes over the last week of what she has observed traveling around Viera; Sandhill Crane families are in abundance, a Swan family, Eagles and Red Shouldered Hawks soaring overhead and perched on poles, beautiful horses on Stadium Parkway, with Caracara and Egrets following them in the pasture; and Doves all over, Deer, Fox, and more.  She noted that they stay because of the environment that has either been left alone, or created for them within the development; she noted people love to come to the barn, to be close to nature; the creation of the new Wilderness Park will provide that and more; and the wildlife will become even more abundant.  She stated she has also seen families riding bikes, at playgrounds, and people walking and running; there is the new marketplace at The Avenue, and so many community events that no one person could keep up with; this is truly one very large small town; The Viera Company has proven their teamwork, generosity, responsibility, and commitment in everything they do; it will only get better with the development of Viera West; and she encouraged the Board to vote yes on Viera West. 

 

Robert Usherson stated he was here with a less popular request to encourage the Board to not adopt this Comprehensive Plan Amendment; if the Board decides to adopt it, he would request significant change to the DRI Development Order; stated the Comprehensive Plan Amendment includes and opens for development the additional 11,000 +/- acres; and the specifics of the development proposal are made by reference to the DRI Development Order.  He noted the full DRI Development Program has not been analyzed for its service impact; there have been some analysis of the Phase III Development Program, but no analysis of the Phase IV Development Program; and not withstanding the policy language in the Development Order that seems to provide some limits beyond Phase III; but in reality they do not.  He stated he is speaking to the Board as a private citizen, but his background is as a comprehensive planner in Florida for over 30 years, 15 of that was as a chief comprehensive planner in a large metropolitan county; stated the way this is structured, as he reads it, it does provide that after Phase III there must be the traffic monitoring analysis and reports prepared periodically, but there will always be some kind of proposed solution to whatever the traffic problem would appear to be; the document shifts the burden of the solutions into the lap of Brevard County and affects the municipalities or FDOT; and if some of the identified possible solutions are found to be objectionable by the Board’s successors or the other municipal councils, then it is simply shipped into a pay and go, pay the money, pay the fair share, and adios.  He stated it is up to the local government then, whoever is responsible for that particular roadway to find the solution.  He noted in his self-serving interest, he lives near Wickham Road, east of the Government Complex, and he finds it to be a lovely neighborhood; he does not want to see six lanes of traffic in the median or in the pedestrian and biking neighborhood impacted by the through traffic; there will be an awful lot of light industrial traffic that will go in there; it will not be just passenger cars, but truck traffic, most of which will get on the new interchanges; the Phase III analysis was done by FDOT, surprisingly not done by the applicant or County consultants; and he thinks that is a solvable development Phase from what he can quickly read in the few days that the materials have been available.  He stated that Phase IV no one has addressed; the Board’s successors are going to be in a box, there is no stopping Phase IV if the solutions are found to be unacceptable by the community then and the Board’s successors; and he urges the Board not to get into this box.  He noted that it is a well-crafted document; it is a craft that has been honed by the skillful attorneys in the State for many years and there is no escape from it; and he urged the Board not to adopt the Comprehensive Plan Amendment until the service impacts and the full development program have been analyzed and understood.  He stated he has not even begun to look into the water permitting, well water withdraw and treatment capacity for that full build out of Phase IV in the Cocoa Utility Service Area; he does not know what the extent to which the other services have been looked at for the Phase IV development scheme; but he urges the Board not to get put into this box. 

 

Maureen Rupe, Partnership for a Sustainable Future, stated that it has been over two years since Commissioner Bolin had asked The Viera Company to meet with the environmentalists; her group has met with them on a regular basis; and they have resolved their issues.  She noted that she would just like to say thank you to them; they were respectful, accommodating, and pleasant; she is also speaking on behalf of the Florida Native Plant Society; and from Coreen Nefaltus with the State and Vincent Lamus locally, they asked to also express their appreciation for their relationship with The Viera Company. 

 

Mary Sphar, Sierra Club Turtle Coast Group, stated that they have been working with The Viera Company and County staff, and she would especially like to thank Commissioner Bolin for starting this process on July 10, 2007; she directed them to meet, and since that time, they have hashed out a lot of very difficult problems; stated the most difficult being, in her opinion, the wetlands Comprehensive Plan language, which is very complicated; on that wetlands Comprehensive Plan language, they were able to get residential policy to be more flexible for all applicants with any project; they were able to provide for smart growth and mixed-use development within the Comprehensive Plan Conservation Element; and that was all done because they wanted to make it work as well as they could.  She advised all of their issues have now been resolved as best as they can; they would like to thank the County staff, and also thank The Viera Company and their consultants Glatting and Jackson; and they had a very good relationship with them, they were able to work out these problems, and it was a pleasure from the point of view of the Sierra Club to be able to make a positive impact on a project for the County. 

 

Chairman Bolin stated the bi-annual report was mentioned, and whether or not Modeling and Monitoring; and she inquired if staff could give her some feedback on that. 

 

Steve Swanke, Impact Fee Programs and Budget, stated that the bi-annual report is a required element of Development Orders according to Florida Statutes covering DRI’s; basically, the Development Order states that the development has to occur in accordance with the conditions set forth in the Development Order, and they report on those conditions every two years; and if it is not, then they have the obligation to stop development and bring it back in line with the conditions set forth herein.  He noted as far as Monitoring and Modeling, they do have some reporting requirements regarding traffic that are built into the bi-annual report, but they are not specifically required to do Monitoring and Modeling as a part of that; stated when the DRI was first approved, the County had requirements that they do Monitoring and Modeling every year; it was his experience that the pace of development was not fast enough to warrant continuing to do that; he believes in the late 1990’s, they allowed Viera to either do Monitoring and Modeling when they entered a new phase, or when they proposed to change their development program by some amount that would impact traffic; they find that they have typically been getting Monitoring and Modeling every couple years; but it is not a specific requirement. 

 

Chairman Bolin inquired if the Board does not have the Monitoring and Modeling specifically in there the Board still has the ability to monitor it, by the bi-annual reports, and request it. 

 

Mr. Swanke advised he does not believe that there are reporting requirements on traffic that go into the bi-annual report; and he does not believe that the County has the ability to request them to do a full Monitoring and Modeling analysis on the basis of that. 

 

Mel Scott, Assistant County Manager, stated that he believes it is also important to note that when they get to look comprehensively at what they have built and how to compare that to the infrastructure investments that they had planned and put in place, that will occur in 2015; and he is comfortable that with the economic climate the way it is at this moment.  He stated if it were to take a turn for the better in the next couple of years, to recognize that they have infrastructure investments that are occurring right now that are still set forth to take care of previous approvals; he believes that 2015 is a reasonable point-in-time; hopefully the economy has recovered to a point that The Viera Company has enjoyed some success; and that the Board actually has that point in time where it has meaningful change that has occurred in the green fields that are seen now, that will give the Board that kind of Monitoring and Modeling moment that it has the feedback to see; and if the mark is missed, at 2015 there is the ability to re-assess that and go back and go through those negotiations to see how it can be fixed and addressed.  He stated that there was a comment on the pay and go concept, that is what the County wants, and adhering to the concepts of concurrency the Board is not hoping for them to adhere to a higher standard; it wants to make sure that is what it is proposing is paid for adequately; and that is what the Board is hoping to ensure and that is what he is confident that it has in place at this moment. 

 

Chairman Bolin stated that Mr. Scott touched on the Phase IV; no analysis of Phase IV was brought up; and inquired if that could be explained a little more. 

 

Bob Kamm, Transportation Planning Director, stated that from the point-of-view of transportation, it is very clear on Condition 84, prior to the initiation of each Sub-phase, IV.A, IV.B, IV.C, IV.D, the developer shall conduct a Monitoring and Modeling Program; that goes back to the definition to Monitoring and Modeling; it has a legal definition in the Statute; stated this Monitoring and Modeling is extensive, a lot of data collection and analysis; and what is done in the Monitoring and Modeling, or M&M as it is conveniently called, is another look-see to see if the project has impacts on the transportation system that require mitigation, so there is a mitigation element to a Monitoring and Modeling program.  He stated it is not just looking at analysis or data to see if it is close to what the forecast is; and the follow on is, what is the financial contribution that may be required.  He stated that the way this is now structured, there is a very clear hard stop in the year 2015 regardless of how far along Phase III has developed; the five year time certain they must do a Monitoring and Modeling Study and have it submitted to the County by the end of that calendar year, including an assessment of how effective and appropriate the transportation and mitigation program has been, that is for Phase III; and that would have to be done again before they go through any of the subsequent Phase IV steps.  He noted that the gentleman mention analysis of other elements such as water, schools, fire, etcetera; he cannot answer how the Development Order addresses those elements of a potential Phase IV; but in terms of transportation, they are committed to making sure that there is this very rigorous assessment, including a financial reconsideration five years before any further activity occurs. 

 

Commissioner Nelson stated there was a question about the difference in transportation costs a few years ago versus the transportation costs today; and inquired if staff could give a response on how that occurred, and what the differences were. 

 

John Dennighoff, Public Works Director, stated he could address it in a general way; stated the costs the County had worked up when looking at the $100 million number about two years, or a year and one-half ago, included land values, which at the time were still in the bubble arena; in addition to that, the overheated construction industry costs were up in a similar sort of bubble configuration; as a result of all of the costs, for the cost estimating purposes were up at an unusually high level, as a result, many of those numbers today have been significantly reduced; stated he believes the other comment was that the Board is now looking at today’s dollars; he believes that is a true statement, that is one of the risks that is there in any kind of a DRI; stated the numbers have come down because construction costs have come down; and land values have come down; but the County does not control any of those. 

 

Mr. Kamm stated that the way the Development Order is structured, for instance on the Viera Interchange, The Viera Company is committed to pay for the costs of the Interchange; and the requirement is to pay the whole bill at the time that it is constructed. 

 

Commissioner Fisher stated that a comment was made about shifting the costs to the taxpayers, he believes it was in Phase IV; and inquired what was meant by that, how does that happen, or if it does happen. 

 

Mr. Kamm stated that anytime there is infrastructure of any kind, be it Sheriff, Fire Protection, or Roads, anytime there is infrastructure required to be provided, and it is not covered by whatever fees or costs or taxes or paid by that development, the increment has to be paid by the general public, so in that sense, if the development is not paying its full fair share, then there could be the possibility of having other infrastructure paid by some other public mechanism; that is the best answer he can give at this point; and he is unsure of the specific instance the gentleman was referring to. 

 

Mr. Scott stated from the planning arena there is a school of thought that wishes, in some regard, that all development would go through this rigorous process, because this process offers the Board and staff the safeguards that are not seen; but the County has identified back logs to the infrastructure that result from development that has occurred outside of this kind of development; stated he believes from a real world perspective when going through the Viera DRI, he would challenge someone to go through that and find where they are waiting for two lights to turn, before they get through the intersection; but the County has not yet experienced those kinds of backlogs in this kind of development, because there are those opportunities where it can take a step back and analyze where it is, and see if it has captured at least the minimum cost to put the infrastructure in place to move goods and services; and he does not see that these types of development forms in the past have left the County with that kind of infrastructure back log that is seen elsewhere. 

 

Commissioner Infantini inquired how the impact of Phase IV with the building of schools compare to that of the first three phases, because the schools are having a hard time right now because Commissioners and School Board Members did not talk to each other when schools were built and development approved; so now there is a lot of shifting, and she is trying to be a little more proactive so that the County does not build a great big community and not have any money left to put up schools; and she inquired if someone could address that for her.

 

Mr. Woodson stated there is a very lengthy school condition in the Development Order that Jay Decator from The Viera Company has worked directly with the School Board staff; he can tell the Board that the School Board staff has agreed to this condition; he understands that it is going to go to the School Board for final approval; stated the direct answer to Commissioner Infiniti’s question, is that in the existing Development Order The Viera Company had provided school sites; and a number of schools are seen throughout Viera, this Development Order continues that; stated in the conditions in the Development Order, it identifies a specific number of school sites; when those occur, the big difference between this version and the current version is there is no impact fee credits for those school sites; and the School Board is getting a better deal this time around with the current Development Order.  He stated they will continue, as the project develops, to provide school sites for the School Board. 

 

Commissioner Infantini inquired how the school will be built; stated it is wonderful to have a piece of land to place the school; but there is that other cost of putting it up.

 

Mr. Woodson advised presumably from impact fees; and he assumes that is what the School Board does with those. 

 

Commissioner Fisher inquired when looking at the estimated costs he is seeing some strikethroughs, like originally on Wickham Road it went from $15.77 million, now it is $16.43 million; and FDOT was at $1.9 million, now it is $2.23 million; overall it has gone from $31 million to $41 million; and he inquired how that came about, and why is that happening. 

 

Mr. Woodson stated they have been working on it; the significant change from $31.3 million to $41.683 million was at the suggestion of staff; the current Development Order has them improving, or widening Wickham Boulevard, from the traffic circle out to the east side of the Interstate; and that is about a $9.4 million improvement.  He noted that staff suggested they show that, it is an obligation today, and it will be an obligation if the Development Order is approved, so they have added that number.  He stated the current Development Order also requires a payment on December 15, and the number is north of $900,000; about two-thirds of that is to go to the County; one-third is to go to FDOT; that number is included in the bottom line of $41.683 million, it is also included in the Wickham Road line, and the FDOT intersection improvement line; and so those numbers have been increased to reflect their current commitments. 

 

Commissioner Fisher stated that he knows the goal for staff and for them is to make sure that when this development happens that these improvements are made and that they are paid for; so if when it gets to five, six, seven years down the road, and the comment someone made about today’s dollars versus dollars down the road, there is no mechanism to make the adjustment to make sure that they are still paying for it and meeting the goal. 

 

Mr. Woodson stated as was pointed out earlier, The Viera Company has taken on the responsibility of constructing the interchange; and if the cost goes up from this number, The Viera Company pays it, not the County, not FDOT, not the taxpayers, because the language in the footnotes say that they will do the construction.  He stated the Viera Boulevard Widening is another specific improvement; and again, The Viera Company will make the Viera Boulevard improvement, whatever the cost, and this is an estimate using today’s dollars, if it goes up, they will pay the extra cost, and if it goes down, then they will not have to pay quite as much; stated there are improvements that other parties will make; Brevard County wants to make the Barnes Boulevard improvement, so in that case, The Viera Company is writing a check, and that check is based on the County’s estimate of what that improvement is going to cost; if the cost of that goes up, then it will be Brevard County that makes up the rest; but the Board needs to understand that the Barnes Boulevard improvement is not solely due to this DRI project.  He stated there are a lot of other people putting traffic on that road, so they are writing a check; and they consider that to be a pretty substantial check, so that was one where the County will have to deal with increases and costs, using County numbers.  He stated there are some intersection improvements that FDOT will be making, and again they are writing specific dollar amounts based on their estimates of what those intersections are going to cost, but they have agreed to take The Viera Company’s dollars and to make those improvements. 

 

Commissioner Fisher stated that seems fair.  He stated he assumes that the County looked at it and there are no other roads or anything else that Mr. Woodson figures that this development is going to impact that the Board should be addressing, because if it is not on the list, then it has no obligation; and inquired if this is correct.

 

Mr. Scott stated The Viera Company will make substantial infrastructure investments that are not included in the list, the items on that list represent the significant and adverse improvements that need to be made that are outside their DRI; and The Viera Company will spend much money improving the roadway network interior to that DRI that does not need to be addressed. 

 

Commissioner Nelson stated on school capacity, he knows that some of that capacity on the schools that were built are being used by students outside of the Viera DRI. 

 

Mr. Woodson stated that they have provided a lot of school sites and have kids being bussed in every day. 

 

Commissioner Nelson stated that one of the things that he believes Mr. Scott mentioned earlier is that this is a process that gives the Board the ability to work with areas that it does not typically have any recourse in; stated for instance, parks, there are no park impact fee, or any way of getting park land; the Board does not require it, and there is no mechanism to require it; in the case of The Viera Company, the Board does, so he believes it has utilized it, and he feels that the Board has not beaten them too badly; but he believes that it has been a good relationship.  He stated that transportation was the big ticket issue; he is going to have to go back through and read all the strikethroughs; his next follow-up question is for Mel Scott about the process itself; they are coming back on the December 15, 2009 Board meeting; and he inquired where the Board goes now in this process. 

 

Mr. Scott stated where to go is the pleasure of the Board, but this public hearing is set up to enable the Board to consider this Comprehensive Plan amendment, substantial deviation, the Development Order, and to approve it if it is the Board’s pleasure to do so at this time.  He stated that the Board has the ability to close the public comment portion at this time, and if the Board would like to go through the underline and strikethroughs that have occurred, the December 15, 2009 Board meeting is available to establish the PUD; and the development rights that The Viera Company would obtain, truly are embodied he believes on the ground when the PUD is approved.  He stated those are the options that the Board has at this time. 

 

Chairman Bolin inquired if there are any items that have to go together, or can they all be separate; and are there any legal situations that the County Attorney needs to discuss with the Board. 

 

Scott Knox, County Attorney, stated the legal situations as far as whether they have to go together or separate, they can be separated if the Board chooses to do so; he stated he would let Eden Bentley speak about the specific legal issues there are first. 

 

Eden Bentley, Deputy County Attorney, stated she had provided a memo to the Board; Mr. Decator and Mr. Woodson have not had an opportunity to review it; but she believes they will not have any significant issues with it.  She noted there are only two legal issues, one is Condition 2D, it states that the Development Order shall prevail over any conflicting information data plan, or commitment; she believes that subsection needs to come out because they cannot conflict with the Comprehensive Plan, and they would have to comply with the PUD regulations; and that is the only thing she believes The Viera Company had not heard previously.  She stated the other item is simply the provisions relating to compliance with the Development Order; there is a paragraph that states, “The County shall not issue any permits or approvals, or provide any extensions of services if the developer fails to act in substantial compliance with this Development Order.”  She stated that raised a concern that was discussed yesterday, which is what if the Viera Stewardship District did not comply with the Development Order, they would have difficulty enforcing the Development Order; against the Viera Stewardship District; and this provision is not illegal, it is simply something that The Viera Company needs to be aware of if they were to ask the County Attorney’s office to go enforce against the Viera Stewardship District.  She stated there are two other issues that she wanted to point out; she wanted to make sure that the Board did understand that the phasing; the Phase III, and Phase IV, is numeric in nature, it is not physical, it is not a map; and also stated there are provisions in the Development Order that state that the developer, for example, will target, or consider actions in the future.  She stated their intent is to try to do those things, but they will not be able to enforce those requirements; they have to be very specific and provide shell, and have criteria that the County Attorney’s office can enforce; those were the things she wanted to point out as legal issues; stated there are some other items that are simply details to clean up that are attached to a list on the memo that was sent out; and when they are cleaned up, she believes there will not be many difficulties with The Viera Company. 

Commissioner Infantini stated she would not typically recommend approving something that has strikethroughs in it without having sufficient time to go through and really re-reading the document, but considering the strikethroughs are making the document more restrictive, rather than less restrictive, and she was already in favor of the document prior to the changes, she would like to make a motion to approve it at this time. 

 

Motion by Commissioner Infantini, seconded by Commissioner Fisher, to approve the Development Order with strikethroughs. 

 

 

Commissioner Fisher inquired if there were a few minutes to look through the legalities and if the County Attorney is fine with them; and also noted he does have interest in the Viera Stewardship issue because it was such a hot topic at a workshop, and he was not sure if the Board and staff was able to work that out. 

 

Mr. Woodson stated that he understood Commissioner Infiniti’s motion to move approval assuming that they correct all of the scriveners’ errors; he believes that what was heard from the County Attorney was that she found some more; and he stated they will get those taken care of.  He stated what he is hearing is that Commissioner Infantini would like to go ahead and approve it, and that she understands that they will work with staff, they will get it straight, and have a clean document, consistent with the discussion today, and he fully intends to do that.  He stated as to the Viera Stewardship District, they did speak with the County Attorney yesterday, and he does fully understand the concern; he noted that Attorney Knox suggested at the workshop, that the best they can do is in the document to tell the Board that The Viera Company will work toward an Interlocal Agreement between the Viera Stewardship District, and the County to give the Board a direct mechanism to control that; that is the reason they added that language; that is the best they can do it today to deal with that issue; but he believes it is a good way to address it, so there will be at the time The Viera Company gives up the majority of the seats on the board of the Viera Stewardship District, there will be a new Interlocal Agreement in place to add to the enforcement mechanisms the County already has. 

 

Commissioner Fisher inquired if The Viera Company is fine with Commissioner Infiniti’s motion and with attaching the document as part of the clean-up to the resolution. 

 

Mr. Woodson stated he just needs a few seconds to look it over. 

 

Chairman Bolin stated that the Board will be taking a break and then re-convening at 5:00 p.m. if the Board would like to take that time to review the document; and what the Board would be doing is taking a break and then continuing after 5:00 p.m. for the Zoning meeting.  She noted that the Board is bound legally not to vote on any Zoning items until 5:00 p.m. 

 

Commissioner Nelson stated he would like some additional time to maybe converse with staff, because they received the new document moments before the meeting, and he is
supportive of the project, but he feels the devil is sometimes in the detail; he would like to have an opportunity to look at it a little more closely; he feels that the Board, staff, and The Viera Company has done a great job but he just wants to make sure because this is a commitment for a long time; and he would hate to rush into it.  He noted his preference would be to make the final approval at the December 15, 2009 Board meeting, and wrap up all of the issues at that one time; and while the Board has both the PUD and the DRI in front of it, he feels from a practical perspective there are just a few loose ends. 

 

Chairman Bolin stated that her personal preference would be to take both into consideration and reconvene at 5:00 p.m., to make the decision; and inquired what she should do about the motion on the table. 

 

Commissioner Fisher stated there is a motion and a second on the table; and inquired if they can just pull that off the table. 

 

Chairman Bolin inquired if the motion could be tabled for 40 minutes; and stated the Board will be taking a break and will reconvene at 5:00 p.m. on this item. 

 

The meeting recessed at 4:20 p.m., and reconvened at 5:00 p.m.

 

Chairman Bolin stated that the Zoning meeting was now in session, and she made a notation that Commissioner Anderson is absent.  She stated there is a motion on the table, but she would like Mr. Woodson to come forward from The Viera Company. 

 

Mr. Woodson stated just before the recess, the question was put to them if they were comfortable with the memo that was handed to the Board by Eden Bentley, Deputy County Attorney; he stated that they would agree to make the changes that Ms. Bentley suggested; problem one on the first page refers to deleting Condition Two, Subsection D; and the changes that she suggested on page three of the memo, in the nature of corrections they will make those changes when they correct all of the other scriveners errors.  He stated Commissioner Fisher had inquired specifically about the Viera Stewardship District; as he answered before the break, they believe that Attorney Knox suggested an Interlocal agreement and the wording that is already in their document, which addresses the issue that was raised by Ms. Bentley.  He stated there were a lot of people looking over his shoulder in this document, in the Comprehensive Plan; there is one word that needs to be added, as Mr. Brown has suggested; he needed to insert the word subdivision, sight plan, or plats shall not be considered, and that was a suggestion by Ernie Brown, Natural Resources Management Director; and that The Viera Company is very happy with it.  He stated finally, he neglected to tell the Board earlier that on Condition 92, page 55, footnote 4, they had agreed with the Department of Transportation (DOT) to make cash payments to the Department for certain intersection improvements, and that is reflected in Condition 4; the Department had asked them, and they have agreed to accelerate those payments slightly, so that this condition would be reworded to say that developer will pay FDOT $323,000 on December 15, 2009, and then $950,000 on June 29, 2012, $950,000 December 29, 2015; and stated all they are doing is taking the DOT chunk of money and making a payment
in 10 days, so they will make that change.  He stated they have made a number of changes in Condition 92 of the Development Order, and they will conform the Comprehensive Plan to these changes as the Board has discussed; and with that, he believes everyone is up-to-speed.

 

Chairman Bolin inquired if Attorney Knox could review the motion the Board has before it. 

 

Attorney Knox stated he believes the motion was to approve the Development Order with the changes that were talked about, and mentioned in Ms. Bentley’s memo; however, given the number of changes that are needed, he would be much more comfortable if the Board would have the opportunity to make sure the Board has covered the entire Development Order in its entirety, and that he had a chance to look at it as a finished product before the Board actually approved it; stated this is an important document that has ramifications for several years if not longer; and he would like to make sure that they have everything the way it is supposed to be.  He stated he understands there was some debate during the hour about some terms and conditions that need to be straightened out too, but he feels at this point, that would be his recommendation to the Board. 

 

Commissioner Fisher stated he believes at 4:10 p.m., they would have approved this; it seems like there have been six changes since then; so it seems like it does need a little more work; he feels like the Board is all there, or at least he is, in concept of what it is; but he believes waiting around to get a clean document that Mr. Woodson is comfortable with and the Board is comfortable with makes a lot of sense; and he withdrew his second to the motion. 

 

Chairman Bolin inquired about procedure; stated it was mentioned that the Board could close the pubic comments on this item, and if the movement is here, then it will come back to the Board on December 15, 2009; and inquired if the Board could close up public comment. 

 

Attorney Knox advised, the Board could close up the public comment portion.  He stated the public hearing portion of the preceding deals and with the land use changes; the Board could close today; stated he believes the PUD is coming back on the December 15, 2009 Board meeting, so the Board can do that today; that will give everyone the chance to work out the final details of the final Development Order, and then to come back with that product at the December 15, 2009 Board meeting; and the Board will be good to go with no further discussion about it. 

 

Commissioner Infantini stated she would like to amend the motion to just close the public comment portion, and to bring the item back at the December 15, 2009 Board meeting with all the suggestions added. 

 

Ms. Bentley inquired if that was only on the Development Order, and not on the Comprehensive Plan.  Commissioner Infantini stated that was correct. 

Commissioner Fisher inquired if the Board is okay with the Comprehensive Plan, and if there are any last minute changes that need to be made on that. 

 

Mr. Woodson stated that he believes they are good-to-go on the Comprehensive Plan; and the revisions and the CIE conform.  Mr. Scott stated that was correct, that was the last part.   Mr. Woodson stated what he is hearing with all the help he has received, he feels they are good on the Comprehensive Plan with those three minor changes. 

 

Commissioner Infantini inquired if that it is including the Comprehensive Plan; with Mr. Woodson responding yes. 

 

Ms. Bentley stated that staff is concerned that there may be members of the public who did not realize that both items were being discussed at the same time. 

 

Cynthia Fox, Planning and Development Manager, stated the Board had only opened the public hearing on Item D, which was the Development Order; the Board had not opened the public hearing for item E yet; stated she knows they are very similar, but perhaps the Board will want to open the public hearing for Item E, to allow, if there is any other public comment; and then, the Board can close the public comment after E, which is the Comprehensive Plan. 

 

Chairman Bolin inquired of she is hearing this correctly, that the Board can move forward with the motion to close public hearing on just V.D right now, which is the Development Order; with Ms. Fox responding yes, but then the Board needs to open public hearing for V.E, which is the Comprehensive Plan amendment, and allow for public comment on that; after that public comment can be closed for that as well; and then both items can be tabled to the December 15, 2009 Board meeting. 

 

Chairman Bolin stated there are no cards for Item V.E.

 

Ms. Fox stated she can then close public comment on that item.

 

Commissioner Infantini stated her motion stands to close public comment on the PUD and the Comprehensive Plan and bring it back at the December 15, 2009 Board meeting.  Ms. Fox advised the Development Order and the Comprehensive Plan. 

 

Motion by Commissioner Infantini, seconded by Commissioner Fisher, to close public comment and continue public hearing to consider approval of Substantial Deviation #2 to the Viera DRI and adoption of the Amended and Restated Development Order by Resolution; and adoption of the 2007-C Comprehensive Plan Amendments related to Substantial Deviation to the Viera DRI to the December 15, 2009 Board meeting.  Motion carried and ordered unanimously.   

 

Chairman Bolin called for a public hearing to consider Planning and Zoning recommendations of November 9, 2009 and November 16, 2009, as follows:

 

V.B.1 (Z0911501) – Indialantic Beach Plaza, Inc. requests a Conditional Use Permit (CUP) for alcoholic beverages for on-premises consumption (beer and wine), in conjunction with a restaurant, in a BU-1 zoning classification in three units on a total of 7.14 acres located on the west side of Highway A1A, south of Boskind Road; also having frontage on the south side of Boskind Road, west of Highway A1A, which was recommended for approval by the Planning and Zoning Board. 

 

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

 

 

V.B.2 (Z0911502) – Blue Seas, LLC.; Michael C. Gagnon and Waltraut Gaccione requests a Small Scale Plan Amendment (09S.06) to change the Future Land Use Map Designation from NC to CC on .71 acre +/-, and a change from RU-2-15 to IN(H) on 1.42 acres, +/-, located on the east side of Highway A1A, south of Pine Tree Drive, which was recommended for approval by the Planning and Zoning Board.   

 

There being no objections or comments, motion was made by Commissioner Nelson, seconded by Commissioner Infantini, to approve item V.B.2, with a Binding Development Plan, limiting the number of beds to 150, as recommended by the Planning and Zoning Board; and to adopt an Ordinance amending Article III, Chapter 62, of the Code of Ordinances of Brevard County entitled “The 1988 Comprehensive Plan”, setting forth the Sixth Small Scale Plan Amendment of 2009, 09S.06, 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.   

 

 

V.B.3 (Z0911101) – Kenneth Norris Carlile & Patricia Diane Carlile requests a change from AU to SR on 0.57 acre located on the east side of Old Dixie Highway north of LaGrange Road, which was recommended for approval by the Planning and Zoning Board. 

 

There being no objections heard, motion was made by Commissioner Infantini, seconded by Commissioner Fisher, to approve Item V.B.3 as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously. 

V.B.4 (Z0911102) – Scott and Jennifer Wilson requests a CUP for a Private Boat Dock Accessory to Adjacent Single-Family Residential Lot, with a waiver; which is zoned EU and consists of 0.02 acre located on the east side of Indian River Drive, immediately opposite of the eastern terminus of City Point Road, which was recommended for approval by the Planning and Zoning Board. 

 

There being no objections heard, motion was made by Commissioner Fisher, seconded by Commissioner Nelson, to approve Item V.B.4 as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously. 

 

 

V.B.5 (Z0911301) – Ingrid K. Matta and Richard L. Matta requests a change from EU to AU on 3.80 acres located on the east side of South Courtenay Parkway, north of its intersection with South Tropical Trail, which was recommended for approval by the Planning and Zoning Board. 

 

Commissioner Nelson inquired if at the Planning and Zoning Board that she indicated that she wanted to do citrus or trees of some kind on the property; with Ms. Matta responding fruit trees.  Commissioner Nelson stated there are a lot of agricultural uses included in the zoning; inquired if Ms. Matta would mind if the Board limited it to those uses; stated for instance, the Board would not want her to start grazing cattle; he does not think she wants to graze cattle; and what the Board could do is a Binding Development Plan (BDP), which would include fruit trees as the use. 

 

Christine LePore, Assistant County Attorney, stated it would be best to say a Binding Development Plan agreeing to no livestock on the property.  Commissioner Nelson stated then all animals would need to be listed, such as chickens.  Ms. LePore stated farm animals and fowl. 

 

Commissioner Infantini stated she would be concerned with only saying fruit trees, because there are other types of trees that the applicants may want to put on the property, so she would not like to restrict it just to fruit, and the Board could just restrict the property to not have livestock and fowl. 

 

Commissioner Nelson stated that would be fine; he knows what Ms. Matta is trying to do, and the Board was just trying to incorporate what she is trying to do; but there is the other list of things that can be done in that zoning that might be objectionable.  He stated he believes the approval is based on the fact that there will be no animals.

 

Ms. Matta stated that the understanding was that there were to be no animals; and that they did not want any. 

 

There being no further comments or objections heard, motion was made by Commissioner Nelson, seconded by Commissioner Fisher, to approve Item V.B.5 as recommended by the Planning and Zoning Board, with a Binding Development Plan excluding farm animals and fowl.  Motion carried and ordered unanimously. 

 

V.B.6 (Z0911301) – Jody K. Lequear requests a change from RR-1 to AGR on 5.80 acres +/- located on the southeast side of Micco Road, west of Fleming Grant Road, which was recommended for approval by the Planning and Zoning Board. 

 

There being no objections heard, motion was made by Commissioner Infantini, seconded by Commissioner Fisher, to approve Item V.B.6 as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously. 

 

 

V.B.7 (Z0907105) – Peppercorn & Peppercorn, Inc.; Travis and Gail Giffey; Keith Marlin Skalet & Brenda C. Skalet; and John W. Moorer, as  Partners in the Mims Property Joint Venture Partnership, requests to change from AU, RRMH-2.5 to RU-1-11 on 84.72 acres; and a change from AU to RR-1 on 35.60 acres located on the south side of Irwin Avenue, east of U.S. Highway 1, which was recommended, for approval by the Planning and Zoning Board with a Binding Development Plan.   

 

There being no objections heard, motion was made by Commissioner Infantini, seconded by Commissioner Fisher, to approve Item V.B.7 as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously. 

 

 

V.B.8 ( Z0910501) – Rose B. Mathers requests a change from RU-2-10 to RU-1-13 on 0.09 acre located on the south side of Atlantic Avenue, west of A1A, which was recommended for approval by the Planning and Zoning Board. 

 

Dikki-Jo Mullen stated she is present to object to the rezoning and variance.  She stated in February of this year, this item came up, and the Board listened to a lot of testimony, and came up with a very good and true conclusion that this is not in the best interest of the community; and she asks that the Board uphold their original ruling.  She noted the little house she lives in is actually a triplex; it was built by the Mathers family in 1958; stated the little lots that are all part of the Canova Beach Vacation Home sites were all designed to be sold in groups of two for duplexes, three for triplexes, and four for quads.  She advised that the Mathers’, in developing the property, did build a triplex; they purchased three lots but they squeezed out an extra lot this little 50 x 80-foot piece; and that is where the contention is.  She noted it has never been large enough for a two-story or more home, and to put one there would put the entire neighborhood out of proportion; stated in October, Mr. James Mathers admitted, at the first Planning and Zoning meeting, that they tried to sell it in the 1960’s, and were compelled to take it back; and that was before her family came, but there was some reason for it.  She stated there are real problems involving her well; her well was installed by Mr. Mathers when they built the house, and the septic tank, because it was squeezed into a triplex, two lots instead of three, it is directly on the lot line.  She noted there was a lot of debate because she had always been told by Mr. Mathers Sr., who is no longer with them, and her mother often spoke about the well, and Mr. Mathers was very proud of the triplex; stated he would periodically come along and talk to the neighbors; she has never met the rest of his family, neighbors for almost 35 years; stated she has a picture that shows how close her well would be in relation to the property line; she also has a picture of her triplex and of the duplex next door; and there has been communication from the Field family, they weren’t able to make it tonight about how strongly they object.  She stated for many years the property line always lined up with the utility pole; a mysterious new survey that Mr. Mathers presented shows the utility pole quite a bit to the east, and it does place the well by about 15 inches back on her land; but if this is subject to digging, if it is subject to construction, she is really concerned about a sinkhole, the well collapsing, or the neighborhood flooding; it would cause real health problems; and one thing everyone does agree on, is that a septic system would have to be installed for any new construction there is city water, but not city septic.  She stated she would like to go to Florida Domain Law and accustom establish usage and quote from 373.171, 139.2234, 139.2235, 139.226, and 139.373 of the Legal Code; it governs how acquisition of Real Property Domain Law can be evoked when water and flood control and water issues are at hand; preferred water supply sources, and effective prior land acquisition on consumptive use permitting and existing uses; noted the legal research she has done, this is a completely illegal building, the lot is not a legally buildable lot, by any definition; stated at the Planning and Zoning meeting, her character was terribly assassinated by Mr. Mathers, for which she has forgiven him; she can understand that this is frustrating for him, but what she did is went up to the records at the Courthouse in Titusville, and got the Plat; there is a lot of derivation and variation as far as where the lot lines fall and what they really are; and the Warranty Deed originally has easements and assessments, but the well is not recommended. 

 

Laura Fausone stated she and her husband were both at the hearing in February, and when they came before the Board, they discussed the reasons why an unbuildable lot should remain unbuildable; they also discussed the property would have to be built up to meet the new Codes; and that would result in potential flooding for residents in the immediate facilities in the immediate vicinity.  She noted in addition, a comment was made about their narrow street with the only entrance and exit being at A1A; and she took some pictures recently from where the lot in question would be pointing to A1A.  She stated that with the utility lines, with some one to want to squeeze underneath with 50 feet to work with for a two-story building, she feels is quite dangerous.  She stated that it is very unfortunate that the Mathers family could not work out a viable solution with the neighbors on Atlantic Avenue; apparently there were offers from people in the neighborhood over the years to purchase the property, not for building, but these offers were not entertained; from what she heard from the last Zoning meeting was that they said poor Mrs. Mathers had to continue to work at age 88 in the bakery; and that is very sad that her family could not take care of her.  She stated that she can attest that she is a marvelous baker because she made her wedding cake 33 years ago, and she always thanks her for that; and she is still married after 33 years, so there must be good luck there.  Stated that they are here again twice in the same calendar year for which she thought for the past six months was closed back in February; inquired if that means that when the Board tells them that they have passed a Resolution and says no they are going to vote in favor of the people that live on the street, that is not a binding Resolution; stated she is shocked that she is back before the Board again; and she asked the Board to again uphold the decision that they made back in February to remember that an unbuildable lot of 50 x 80 feet should remain an unbuildable lot. 

 

Elizabeth Casper stated she has been a resident and registered voter of Brevard County since 1998; and during the past 11 years, she has seen Brevard County change and she cannot say it is for the better.  She stated it distresses her that Brevard County, such a beautiful part of the Florida Coastline, has fallen victim to greed, selling out the best interest of its long-time loyal residents for money from developers, and other interest groups.  She stated she has been a visitor many times to Atlantic Avenue, Indialantic, the site of the matter being discussed this evening.  She stated it is a quaint, quiet block, with many older homes that have been able to retain their charm and aesthetic appeal despite the years of storms and repairs; building a two-story home on this tiny lot, on this block, would destroy the appeal of the small neighborhood; she feels that an eyesore like that would further bring down property values; bigger and newer is not always better; and stated a precedence like this could open the door to other tiny lots being built on, and this would just become another nail in the coffin of Brevard County’s economy.  She stated there are so many empty homes in Brevard County, two-story homes; and there is no need for anyone to build new homes, especially in the few areas that have been able to keep their original charm that is reminiscent of a better time in the Space Coast.  She noted another great concern to her in this particular matter is that the street is very narrow and very dark at night; additional traffic would be dangerous to all residents, children, and adults; common sense screams at them that this is unacceptable; in this case the needs of the many outweigh the wants of the one; and if the Mathers family is so desperate to part with this lot, they should negotiate with Goodwill, with the neighbors, or possibly with the County to sell the property.  She stated if the County were to buy the lot, the lot could be converted into a sanctuary, a small park, or community garden, and would benefit everyone and not hurt the residents or the neighborhood; and she implores the Board to look at the negative impact the approval of this Zoning request would have and what bad precedence it would set for other potential neighborhoods that might face this kind of problem in the future.

 

Sally Hill stated she was in front of the Board in February, noted she does not live on that street, but she has known this family for 25 years, so she has traveled to that street off and on during that time; and it is a low, dark street at night, and it is very, very narrow.  She stated she feels that the size of the lot and the size and style of the homes, she could not imagine trying to squeeze a two-story home a small of a lot that is less that one-tenth of an acre, and she knows how bad the flooding was, because it was bad in South Brevard County when Fay came through; there was a lot of flooding because it was so low, and everyone knows that in that neighborhood; she feels that is something that should be considered; and everyone needs to keep Brevard County strong during the next flooding that may happen.  She stated that she has read about all of the Commissioners online, and that she wanted to go into Government, but instead chose the medical field; and she agreed that enhancing and ensuring Brevard County’s quality of life is something that needs to be thought about in this matter. 

 

Matt Hill stated he is an architect and he has rendered some drawings for the Board to look at; and he is coming as a concerned resident of Indian Harbour Beach.  He stated he has been familiar with this street for a long time, and this was brought to his attention back in February; and he submitted a statement regarding the proposed variance.  He noted in works predominantly in India, but he has knowledge of sustainability; he is a leading credit professional and an architect; so it extends basically into this very case; and he feels basically if the Board were to make this change, and allow for new construction, it would be raising the plot.  He stated most likely, it is in the best interest of the owner of the property to secure the property for the next flood season or anything that is going to come 20 years in the future; what that means is that the immediate residents are going to be affected by the flood waters, also that the site is less that one-tenth of an acre; there is a reason why it is not going to built on it because historically, it is too small; they are duplex plots, so to do this is really not in the best interest of the historic character of the neighborhood, or the residential fabric; it is a low street, so the flooding is a concern, and the very scale of construction, if there were to be a two-car garage there, and the size of any decent sized home, they would be looking at two-stories, maybe three-stories.  He stated if something like this was passed, then immediately the thought would be to maximize the area square footage; what that will do is tower over all of these small homes, and it will bump out the construction, so that it really becomes an encumbrance visually and logistically for the neighborhood; and he just wanted to bring those issues to the Board’s attention, as he did in February. 

 

Commissioner Fisher stated he has never been on that street, and if he has, it has been a long time, and noted he was surprised to see that a few lots down across the street there is a two-story house, maybe even a three-story house; stated he is trying to figure out the picture, and being that Mr. Hill is a good Architect he will get him to clear it up.  He stated it looks like the character of the street has already changed over the years. 

 

Mr. Hill stated it has been affected by that type of growth, but at the same time, because that sits on Highway A1A, is within the context of the condominiums, and one of the taller constructions, it does speak to that road itself; but as soon as one were to go into the interior of that street, then it becomes a different context altogether, and a much smaller plot in general.   

 

Commissioner Fisher stated what his concern is, is that he was thinking that Atlantic Avenue was single-family homes, and here Mr. Mathers was getting ready to build a two-story, or possibly a three-story home according to the drawing; he was already seeing the character showing two-stories only one lot away, across the street; and he is a little surprised that Mr. Hill thinks that this one other house would create a whole street character change. 

 

Mr. Hill stated he believes that it does establish certain precedence as one issue; and it does introduce a certain ruling that sets up future constructions to follow in suit. 

 

Commissioner Fisher inquired if the other homes were single-family homes at one time as well.  Mr. Hill replied he was not clear on the history of the neighborhood. 

 

Chairman Bolin stated she would have a clarification for Commissioner Fisher on the question of whether or not they were single-family homes before; and inquired who would be able to answer that question. 

 

Ms. Hill stated that new construction is on legally sized lots; they are not on little lots that would require a variance of this type; there was a huge vacant square there ever since she can remember with one small building on it before all of the condos came up; and the new condos are a problem as on the street there have been a number of close calls. 

 

Chairman Bolin stated the Board was just looking for clarification. 

Commissioner Infantini stated she wanted to follow up for Commissioner Fisher, that she believes they fell within a PUD, so they were plotted to be able to put up this many structures; and she has to say they are gorgeous, they are really very pretty. 

 

Bob Runge stated he believes the biggest issue to him is the size of the lot with septic systems on it; when looking at a lot that is way under a quarter of an acre, in a beach community; putting the septic system in when they have already seen that there is potential for flooding, unless this is a type of a septic system that is self-contained and purifies to produce water out of it; he does not know if that has ever been defined if it is any typical type of septic system; and it seems to him that it is a real potential problem for dumping more septic in to the ground area in a beach community.  He stated that is the biggest issue he has; and his family moved here in the 1950’s, so he has seen a lot of change in that time. 

 

Terry LaPlante stated she has been a resident of Brevard County for most her life; and she is there on behalf of Ms. Mullen to request the denial of the change of the zoning on the property adjacent to her home.  She stated she believes that there must have been an error made back-in-the-day on a part of the Mathers’ families land, when they purchased the three lots with the intention of putting a triplex on it, and then moved the triplex over and put it on two lots, leaving the well sitting adjacent to the third lot, which is the issue.  She noted that it is directly on the property line and there is some dispute over where the property line is; but it seems that the well is on her property.  She stated if the Board does decide to change the zoning to single-family homes, it reduces her setback from 15 feet to seven and one-half feet.  She noted she does not know what it would take to protect the integrity of the well, but it is something that is usable that Ms. Mullen treasures, and is something she would treasure if she owned the home, and lived there; and she would want to protect the well, and she believes that at minimum at whatever happens here, the integrity of the well deserves to be protected.  She stated that if this other lot is built on, they will have to put a septic tank in, and again, that would seem to compromise the integrity of the well; she also stated as a citizen of this County, she objects to any new development which is located on beachside, which requires the use of septic tanks; stated in her personal opinion, septic tanks have been a cause of beach contamination, and possibly contamination of water sources; and she urges the Board to vote against any new development, which require septic tanks, especially on beachside.  She stated other issues concern the style of the home; given the size of the lot and the single-lane road that leads in and out of the neighborhood, if the Board changes the zoning to the RU1-13, the minimum size of the home required would be 1,300 square feet under air; she is concerned that the structure of the home to be built would be incongruent with the other homes; and she is concerned about where they will park the cars since it is a one-lane road.  She noted should the Board enforce the current setback of 15 feet, the buildable area of the new lot becomes 1,100 square feet, which is below the minimum as noted and would seem to enforce or support Ms. Mullen’s claim that the lot is unbuildable.  She stated the fact that the Mathers family took three lots, and built a triplex on two lots suggested that they had other plans for the lot at issue; and noted the whole street was zoned for multi-family units, it was all sold two lots for a duplex, three lots for a triplex, and a quad for a quadplex.  She stated when the Mathers family took this lot and put the triplex on two lots and separated out this little tiny lot, they must have had a plan for that lot; she noted it was not zoned at that time for multi-family housing and the whole street was, and it was not zoned for a single-family home, so they must have had a plan; and she suspects that perhaps because they are actively involved in the development of the neighborhood, that perhaps they promised to put in a playground as an enticement to get people to buy and build in that neighborhood; and she would suggest that maybe a search of the records should be made to determine what their original intent was when the sub-divided that lot out.  She stated in summary and review of the Mission Statement of Brevard County Zoning, “To enhance Brevard’s Citizen’s quality of life, to review plans for new development for compliance with current Codes;” it seems clear that the Mathers family does not intend to develop the property for their private use, but rather to profit from the sale of the property; stated for over 25 years, the Zoning Commission, or the Board has recognized and enforced the fact that this property is not buildable due to the size of the lot, septic tank, and well issues; and in fact, no other lots were subdivided in this manner as this one was.  She stated that in her opinion there is no reason for the Board to make a different decision, and the petition signed by the Residents of the neighborhood support the rezoning be denied in favor of the residents. 

 

Dominick Durso stated that there is very little that he can say, because it would be redundant to what the Board has already heard.  He noted that the Board made a decision in February and went back on it for some reason; and if it was a good reason, the residents would like to know what it is.  He stated the Board should be representing the best interest of the residents; and they request that the Board again reject the rezoning. 

 

Mr. Scott stated he wanted to clarify the fact that the applicant made the reapplication; and the Board has not prompted this in any way. 

 

Commissioner Fisher stated that the decision has not yet been made; he noted that he remembers that this came before the Board in February, but his memory is not that good; and inquired what is the difference between this application now, and the application that came before the Board in February, or what was the issue that maybe this Board has concerns with. 

 

Cynthia Fox, Planning and Development Enforcement Manager, stated that the lot was still owned by the same person, but it was up for sale and there was someone who had a contract to purchase the property subject to the rezoning, and the rezoning was denied in February by the Board; noted this is the owners coming back to the Board; and they have made a new application for the same thing. 

 

Commissioner Fisher inquired from a staff standpoint, and he realizes this is not a decision that this Board makes, and knows they are more interested in zoning, but the septic tank laws that they have to comply with if they were able to pull the septic tank, and their laws to comply with wells, how close a septic tank can be to a well; and further inquired if there are laws in place that also address flooding someone else’s property, so the swell and engineering would need to be addressed. 

 

Ms. Fox stated that all of those details are worked out in the building permit stage; and when they go to develop this lot, they will have to meet all of the applicable laws for the County and State.  Commissioner Fisher inquired if there were laws that protect the neighbors in those things.  Ms. Fox replied affirmatively, that all of the laws are designed to do that. 

 

Commissioner Infantini stated basically, if the Board approves this, what it is doing is passing the decision on to the Variance Board, then they would have to go and approve variances to allow the homebuilder to build their home, because it is not going to meet the setback requirements, they will have to have variances in place; she believes the Board will just be passing the buck to the Variance Board; and inquired if that was correct. 

 

Ms. Fox advised the applicants already pursued the variances and they were granted the variance for the lot width, and area, and were approved by the Board of Adjustment for those; stated the variances the applicants applied for that they did not get were for the setbacks, so any structure on this property will have to meet minimum side setback of seven and one-half feet on each side; but at the time that they made the variance application, they were good with that; if they are approved tonight, they can continue with that variance. 

 

Chairman Bolin stated that it is her understanding that this is an actual downsizing from what is current.  Ms. Fox stated yes, that the current Zoning is a multi-family zoning, and this zoning change would take it to just a single-family zoning. 

 

Commissioner Infantini inquired if two homes could be put on there; with Ms. Fox responding if they have enough property, they could.  Commissioner Infantini inquired if they could put more than one on one property; Ms. Fox responded affirmatively. 

 

Commissioner Fisher stated this was originally a platted lot; so rather it is platted to the equal size of the other lots, which is an unusual neighborhood; and this lot was a lot in the original plat. 

 

Ms. Fox stated yes, this was originally platted in the 40’s, which predated the minimum zoning qualifications, so this is a non-conforming lot, but it is actually undersized to even meet the standards of the non-conforming lot, which is what required the variance applications; and it was platted, it is just undersized. 

 

Chairman Bolin inquired if Ms. Fox could go over that again.  Ms. Fox reiterated if the lot was existing at its current configuration, prior to the zoning law, the zoning law, when it was instituted in 1958, it said the lots will be recognized as long as they meet certain minimum criteria; and this lot even fails to meet that criteria. 

 

Chairman Bolin stated the Board has the applicant present and would like to bring him forward; and that Commissioner Nelson had a few questions as well. 

 

Commissioner Nelson stated that he thought the applicant was here and he wanted to hear from him. 

 

Jim Mathers stated that he is there on his mother’s behalf, who is the owner of the subject property, to represent her at this meeting.  He stated she is 88 years old, and is busy running her cake shop business, and needed some help.  He stated on January 5, 2009, the Planning and Zoning Board approved a request to move from multi-family to single-family zoning in a vote of 9:4, with two against; on February 5, 2009 the Board denied the request unanimously; since the Board’s denial he has heard people contend that nothing has changed; and he would submit that there have been changes, mainly, the applicant today is the owner, with far greater knowledge of the subject property than the previous applicant, who was a perspective buyer.  He stated in addition to the Board’s meeting of February 5, 2009, Rick Enos, Zoning Official, suggested to the Board that the owner could acquire more property to meet the multi-family requirement; this gave the Board an out, as will be discussed later in more detail; and the owner attempted to acquire more property, since the Board was under the impression that it was feasible.  He noted since the owner has now exhausted her ability to acquire more property, the Board is entitled to know that the door has closed on that option and that the property will be unbuildable without a change form multi-family to single-family zoning.  He stated there was a loophole that needed to be closed by the owner in order to exhaust all administrative remedies before exercising her legal rights, if necessary.  He noted on November 9, 2009 the Planning and Zoning Board again approved the request in a vote of 8:4, with one against; stated the two members who voted against the request last January, voted for it in November; and he will review the owner details the Board was previously unaware of.  He stated his father James P. Mathers was born in Melbourne 90 years ago; the only time Mr. Mathers had not been in the area was when he joined the United States Navy in 1940 and served for over six years, just prior to and throughout World War II; and it was there that James Mathers met his mother Rose, who was also serving in the Navy.  He noted when the war ended they returned to James’ hometown of Melbourne to start a bakery business; they have been in business here since 1949; he stated his father James passed away two years ago, but today Rose is still the owner and operator of a business that has changed names from Mathers Bake Shop to Mathers Cake Shop; and it has been operating continuously for 60 years in the Melbourne area.  He stated Mathers Bridge in Merritt Island is named after James’ family, and he has a street in Melbourne named for him as a result of his community service as a Volunteer Fireman among many other activities.  He stated James and Rose Mathers bought the subject property Lot 127, or 112 Atlantic Avenue, in 1954, some 55 years ago, before current zoning restrictions which happened May 22, 1958.  He stated they also bought the two lots adjacent, to the west of the subject property; at that time they had just bought three lots from an individual owner; they had no development in this area at all; and they were just individual people who saw three lots advertised and paid for them.  He stated on two of the lots to the west of the subject property James and Rose built a triplex; and they sold all three lots and the triplex in 1958, however the owner Grace Kline, who bought it, asked James and Rose to take back the single lot without the triplex after her husband died and she could no longer afford the extra lot.  He stated that James and Rose consented in 1964; stated in the contract, when they sold the triplex, there was a provision there for a certain amount for the lot, and she could not afford that, so that is why they got the lot back.  He stated they have been paying taxes, and keeping the lot cleared for their neighbors continuously for 45 years; in good faith, the owner moved on Mr. Enos’ suggestion given to this Board in February 2009, that if perhaps Ms. Mathers may acquire more property to meet the multi-family zoning requirements; requirement one, a multi-family requirement of no more than 10 units per acre; stated the subject lot is 50x80 or 4,000 square feet, it is .0918 acre, and the owner needed to acquire another .0082 acre to be at .1 instead of .0918 acre; that meant the owner only needed eight one-thousandths of an acre to meet the requirement, or 356 square feet, but as it turns out, this is not the operative zoning restriction; requirement two, the lot also needed to be a minimum of 5,000 square feet to meet the zoning requirement; and instead of 356 square feet, the owner set out to acquire another 1,000 square feet of property and grew it from 4,000 square feet to 5,000 square feet by meeting the multi-family zoning requirement.  He advised the structures to the east and the west adjoining properties are built right up to the variance lines, so the acquisition of those properties was judged to not be cost effective; however, the property to the south presented a possible solution; the owner of the subject property made an offer to acquire 1,000 square feet of property from her southern neighbor; the southern neighbor did not accept the offer, so the owners option to enlarge her property, as Mr. Enos suggested, to meet the multi-family zoning; and restrictions were exhausted, that is why the owner is back asking the Board to support her request from multi-family to single-family zoning.  He noted the actual request of moving from multi-family to single-family zoning in and of itself is a compelling argument for most people; and it is their number one reason for seeking the Board’s approval.  He stated the analysis of all the properties presently owned on Atlantic Avenue was conducted; it was learned that there is one residence at 106 Atlantic Avenue that was zoned multi-family that is built on a 50x80 foot lot and it is only 100 feet away on the same side of the street of the subject property; further the owner learned that there are six other residences at 138, 140, 169, 173, 185 and 187 Atlantic Avenue zoned single-family that are built on 50x80 foot lots; and the owner Ms. Mathers does not understand why her home site lot is different from these seven home site lots.  He stated their number two reason for seeking the Board’s approval is a precedence of seven residences already in existence on Atlantic Avenue on 50x80 foot lots, and three of those seven residence were built after 1958; the neighbor to the west calls the subject lot unbuildable; she owns property with an originally configured triplex on two lots; the density is 1.5 residences per lot, three residences divided by two lots; and the owner of the subject property is asking for a ratio of one residence for one lot.  He stated the third reason for seeking approval is that a single residence on the subject property would be a 33 percent reduction in density in relation to the adjacent property to the west; he inquired to assume for a few minutes that the owners’ lot is unbuildable, why does anyone want to build on it; the fireman who was rejected of his dream offered $50,000 for the lot; the Tax Appraiser during the hot market of 2007 assessed the property at $90,000; and the owner paid the taxes that jumped 3,410 percent that year.  He stated in 2008 the subject lot was appraised by the tax collector at $60,000; inquired why the neighbor to the west offered to buy the property in 2002 for $15,000 if no realtor was involved and closing costs were kept low; noted again in March of 2008 why did the neighbor to the west sign a contract to buy the subject lot for $10,000; and if the lot is unbuildable, he wants to know why the owner would pay taxes on an assessed value of $60,000 in 2008 and his answer is that the subject lot is buildable.  He stated in December 17, 2008 the Board of Adjustment approved variances that will allow for a house with a first floor footprint of 35x40, or 1,400 square feet; and with a second floor added allowed for a total of 4,800 square feet.  Stated this is subject to the Board’s approval of the rezoning request.  He stated the fourth reason for seeking the Board’s approval is that the lot is buildable when built in accordance with the Board of Adjustment’s variances; it is interesting to know that the Brevard County Tax Collectors Use Code of 10-R vacant residential land single-family platted is in being for the subject lot; stated there are approximately 18 empty lots on Atlantic Avenue; and if they are adjoining to lots with the same owner, that owner is allowed to build multi-family buildings, single-family buildings, pools, garages, patios, sheds, recreational vehicle pads, carports, gazebos, gardens, and park all manners of vehicles and boats on their property.  He stated that if an adjacent property owner were to buy this lot, they could use it for just about anything they desired without any Board’s approval; the subject lot has been spotlighted by neighbors to a point where they are dictating the owner’s use of the property, they call it unbuildable, when in fact seven families are living quite comfortably on 50x80 foot lots on this very same street.  He stated the number six reason for seeking Board’s approval resides in the question why would anyone buy a home site where they would not be allowed to build a home.  He stated that he would now go into the rebuttal.  He stated the well was brought up as an issue with the Planning and Zoning meeting and it was tabled it until Ms. Mathers could get a new survey; he noted that the well is one and one-half feet on her property, it is on her property, and always has been on her property, it is not going to float, or go anywhere; stated everybody on that street now is hooked up to city water; what that means is that those wells are considered irrigation wells, so the requirements for septic change to 50 feet from 75 feet, in terms of an ellipse that is drawn around to determine where the drain field is going to be. 

 

Commissioner Fisher inquired if it is required to hook up the city water if they apply for a new permit today. 

 

Ms. Fox stated responded affirmatively. 

 

Mr. Mathers stated that the new townhomes are considered blighted by most of the neighbors; if it were up to him he would like to have Salazar to go all the way down Atlantic Avenue; and any new construction on Atlantic Avenue would improve the green quality of the neighborhood while increasing the tax space and the services for the community, single-story throughout the neighborhood, and also a lot of two-story buildings in that specific neighborhood.  He noted he included one photo of a home on a 50x80 foot lot; stated he heard several times one-way street; he was surprised when he heard neighbors pretend that Atlantic Avenue was a one-way street it is not, it is a two-way street with a turnaround at the end because Atlantic Avenue dead endswith no outlet.  He noted that he supposes one could pretend that everyone on Atlantic Avenue lives in a cul-de-sac; he personally measured the width of the street; and the engineers that built it intended it to be consistently wide throughout and it is generally 20 feet wide, about the same as the street to the north of it.  He stated if it is narrower in any given location it is because of sand-buildup that covers the existing pavement; the measurement in front of the subject lot is not the narrowest; and he measured 19 feet in another location.  He stated none of the houses on Atlantic Avenue are on a flood plain, however, flooding should be expected during hurricanes, as one would expect anywhere else; one more house built on Atlantic Avenue, or even 18 more on all of the vacant lots, will not have any bearing on whether flooding will occur during a hurricane; and he recommends that the neighbors go to Google Earth as he has done, look down at the surrounding community, and try to fathom all of the other structures in their neighborhood that have already been built, that will contribute to the overall flooding dilemma.  He stated when talking about hurricanes, the focus should not be narrowly focused on the next-door neighbor, the threat will come from the surrounding community if flooding is a critical problem, what has been done by the neighborhood to solve the problem; there are storm drains hardly in the right place; and he noted the septic approach and how Brevard County has a very good staff to administer to the existing regulations whenever a decision is made to build, the builder will need to abide by these regulations.  He stated the owner has conducted due diligence to ensure that these regulations can be adhered to prior to soliciting buyers who intend to build on the property; stated they have determined that with a 1,400 square foot footprint on the first floor, there is a 660 square-foot plot of septic space available that does not conflict with neighboring wells, septic systems, and that plot adheres to all of the other regulations as well.  He stated nearby parks, Paradise Park is a beautiful park; it is not too far away; it is big enough to be a park; his mother chooses to work even though she is 88 years old; and she makes money working.  He stated there are 18 vacant lots in this area, he has tried to seek out people who were also in the same dilemma Ms. Mathers was with the 50x80 foot lot that was all by itself and could not be attached.  He stated it turns out all of them are attached except for ten, and every one of those are at least one and one-half lots, one is one and one-half, the others are two, so those people will not have to come here; stated they have probably the last lot that will ever face the Board and be asking for single-family zoning.  He reiterated they did not develop Atlantic Avenue, some developer did; in fact, his family bought it from the Peters’ in 1954, and they had bought it from someone else before them; and he is unsure of whom the developer was.  He noted he knows there are 130 lots, platted, in that area; today there are between 60 and 65 structures there; if someone were to go and count them, it is hard to do, because there is so much vegetation sometimes, but he counted 65 one day; and if he goes on Google Earth he counts 62, so it is between 60 and 65 structures. 

 

Commissioner Infantini stated that Mr. Mathers is the perfect reason why as County Commissioners they should not completely make up their minds before they get to the meeting and listen to all of the speakers, because having listened to all of the speakers, saved the last one, she believes they should approve going from multi-family to single-family zoning. 

 

There being no other comments, motion by Commissioner Infantini, seconded by Commissioner Fisher, to approve Item V.B.8 as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously. 

 

 

 

Cynthia Fox, Planning and Development Manager, stated that Items V.B.9, V.B.10, and V.B.11 are three items that need to be tabled to the December 15, 2009 Board of County Commissioners meeting, because they were tabled by Planning and Zoning. 

 

Motion by Commissioner Nelson, seconded by Commissioner Fisher, to table items V.B.9, V.B.10, and V.B.11 to the December 15, 2009 Board of County Commissioners meeting.  Motion carried and ordered unanimously. 

 

 

PUBLIC HEARING, RE: PLANNING AND ZONING RECOMMENDATIONS OF ______NOVEMBER 9, 2009 AND    NOVEMBER 16, 2009 (CONTINUED)

 

Ms. Fox stated they would like a clarification on the Mathers property; stated she believes the motion that was made that it be buildable from multi-family to single-family. 

 

Commissioner Infantini stated she made the motion to approve the zoning classification change. 

 

 

 

Motion by Commissioner Nelson, seconded by Commissioner Infantini to approve the Technological Research and Development Authority’s (TRDA) request to sign a letter in support of the Authority’s Rural Business Enterprise Grant Application.  Motion carried and ordered unanimously. 

 

Commissioner Infantini stated she spoke with Stockton Whitten, Assistant County Manager, and she believes that this item should be tabled to the next Board meeting, because it is in violation of Policy AO-23, to place items on the Agenda after noon Friday before the Tuesday meeting. 

 

Chairman Bolin stated she had made a ruling on that as the priory of the Chair to have it discussed today, because it is truly a time sensitive item; and the Board is at a deadline to have everything ready for the Stadium when they start their practice and have their season.  She stated she is going to pass the gavel to the Vice Chairman, Commissioner Fisher; she feels that the Board needs to take action on it; and there are three options to consider. 

 

Commissioner Infantini stated as she had discussed with Mr. Whitten, she thinks that if the Nationals were concerned about this being an emergency, time sensitive issue, the Board would have received this before 12:30 today, and it is her contention that the Board stop voting on things of high dollar values when it does not have enough time to review or evaluate them; stated she knows the Board just approved something on Tuesday about giving people an extra day off, which was a really feel good thing, she thought it was a great idea, and she did not even weigh the cost and benefits of doing so; so in an effort not to make a hasty decision, she would prefer to see this brought back; but the other Commissioners can make their own decisions. 

 

Commissioner Fisher stated the Board already approved the item, it is just shifting around what it wants to do; he noticed that the items that the Board approved on Exhibit A was $318,000; and he believes that the new list, Exhibit B, shows $373,000, so he would not be in support of not making that number any higher than the $318,000 that was originally approved by the Board, because he believes it has already made that approval.  He stated that he thinks that it is just going to have to work out on prioritizing which improvements it would like to make this year versus the next year, which he believes is the real issue at hand; and the dollar figure from an impact standpoint has already been approved by this Board. 

 

Stockton Whitten, Assistant County Manager, stated that there are a couple of clarifications for the Board, and he apologizes for getting it to them so late, but it is time sensitive.  He advised as the Board knows, each year the County Manager’s Office prepares the project listing and attempts to get the projects completed prior to Spring Training, and if they were to wait an additional 13 days they would actually lose time on meeting that goal.  He stated they have actually been working with the Nationals for the last couple weeks with regards to their amended requests; he believes that the Board has received a copy of their letter with regards to some questions relative to the contract; this issue was approved on September 15, 2009 for the Board, up to $318,000, and they had presented that list of projects to the Board as exhibit A; stated they made a request because the timing is such that they are not going to be able to do the field replacement, which was Item number eight on the list, which was $110,000 as an estimate; so they are not going to be able to do that so they made a request to substitute some projects there, up to the $318,000; and Exhibit B would run to around County priority number 18, which is suppressed dining remodel.  He stated the revised list would include those entire items one through 18, up to an amount of $318,000. 

 

Commissioner Nelson stated on this request there was a question about the equipment in the concession, and one of the options that he sees now is that the Board would make it clear that the equipment is the County’s, versus the Club’s, responsibility. 

 

Mr. Whitten stated that on the original listing, as the County Manager’s Office sat down with the Club, he believes that it was clear to every one that the County’s position, at least County staff, was that those concession stand items or concession stand equipment replacement items, staff considers not the legal responsibility of County Government, and so he does not recommend those in the initial listing; the Nationals are

again requesting that the Board consider that and so his office has given the Board options relative to that; stated in Option two, is if the Board would like to consider approving those items as an optional selection for the Board, but also make it clear that those items become the property of the Board of County Commissioners, and that they are not committing to doing that sort of replacement of concession stand equipment in the future. 

 

Chairman Bolin stated or the Board has Option one, which would be to amend it and having that completely taken out. 

 

Mr. Whitten stated in Option one, it strips out the concession stand equipment but it does continue to list up to the $318,000. 

 

Commissioner Nelson inquired how far would that get the Board into the list if the concession were to be pulled out. 

 

Mr. Whitten stated that if he were to strip out the $318,000 it will probably take them through the end of the listing, because they would be stripping out the $100,000, and would only be adding on that listing, the $45,000 suite remodel, and the $14,000 for glass sliding doors. 

 

Commissioner Fisher stated from a standpoint, and this is really Tourism Development Commission (TDC) money in the first place from the Tourist Tax, so he believes this
should definitely be explained to the public; and secondly, he does not care what premise they would like to make to this, but his concern is that the Board does not spend more than it approved before; and he is fine with whichever way the Board would like to go.  

 

Commissioner Nelson stated the TDC did review the list, and of course that is as far as the Board could get into the list at that time; and he would concur that the refrigeration equipment in the concession was not considered to be a responsibility of the County by the TDC; and he would concur basically with continuing the list, because the rest of those do fall into the Board’s responsibilities, up to that $318,000 limit.  He noted that he would also like to speak to the timing issue; Mr. Whitten is absolutely correct, the clock is just ticking away at this point on trying to get these things done in time for Spring Training; and as it is they will probably be working the night before they throw out the first pitch just to get all of these items done; and he believes it appropriate to have this discussion this evening. 

 

Motion by Commissioner Nelson, seconded by Commissioner Fisher, to approve a revised Capital Improvement listing for Space Coast Stadium.  Motion carried and ordered unanimously. 

 

 

Upon motion and vote, the meeting was adjourned at 6:10 p.m.

 

 

 

 

                                                                                                                                               

                                                                                  MARY BOLIN, CHAIRMAN

                                                                                  BREVARD COUNTY BOARD OF  
                                                                                  COUNTY COMMISSIONERS  

ATTEST:                                                                  BREVARD COUNTY, FLORIDA

 

 

 

 

SCOTT ELLIS, CLERK                             

 

 

 

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