November 5, 2009 Zoning
Nov 05 2009
MINUTES OF THE MEETING OF THE BOARD OF
November 5, 2009
The Board of County Commissioners of
INTRODUCTION TO ZONING PROCEDURE
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 Trudie Infantini led the assembly in the Pledge of Allegiance.
REPORT, RE: EASEMENT FOR CHAIN OF LAKES
Commissioner Fisher stated that the Board should have received an email about an easement that Marsha Cantrell, and North Brevard Parks and Recreation, was trying to get approved for the Chain of Lakes; the County Attorney has looked over it and everything seems to be in line; and it is a waterline easement that Parks and Recreation needs to service some developments in the North area.
Motion by Commissioner Fisher, seconded by Commissioner Anderson, to adopt Resolution authorizing the use of County property as a Waterline Easement to the City of
ITEMS TO BE TABLED OR WITHDRAWN
Rick Enos, Zoning Official, stated that Item V.B.1 was withdrawn by the applicant; Item V.B.3 was recommended by the Planning and Zoning Board to be tabled to its November 9, 2009 meeting; and the Board would need to table it until its December 3, 2009 Meeting.
Motion by Commissioner Fisher, seconded by Commissioner Bolin, to table Item V.B.3 to the December 3, 2009 Board meeting. Motion carried and ordered unanimously.
TABLED ITEMS
Chairman Nelson called for A public hearing to consider tabled items from the August 6, 2009 and October 1, 2009 Board of County Commissioners Meetings.
V.A.1 (Z0907104) – Luella Anne Green and Margo G. Zauner, Co–Trustees of John J. Green Trust’s request for a Small Scale Plan Amendment (09S.03) to change the FLU Designation for Res. 4 to NC; and change from RU-2-10 to BU-1-A on 6.18 acres +/-, which was recommended for approval by the Local Planning Agency and recommended for approval by the Planning and Zoning Board, with a Binding Development Plan.
There being no comments or objections heard, motion was made by Commissioner Fisher, seconded by Commissioner Bolin, to approve Item V.A.1 as recommended by the Local Planning Agency and the Planning and Zoning Board; and adopt Ordinance amending Article III, Chapter 62, of the Code of Ordinances of Brevard County, entitled “The Comprehensive Plan”, setting forth the third Small Scale Plan Amendment of 2009, 09S.03, to the Future Land Use Map of the Comprehensive 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; providing legal status; providing a severability clause; and providing an effective date. Motion ordered and carried unanimously.
V.A.2 (NMI80701) – Rishi Real Estate Properties, LLC’s request for a Conditional Use Permit (CUP) for alcoholic beverages for on-site consumption, with a Binding Development Plan, in a PIP zoning classification on .37 acre, which was recommended for denial by the Planning and Zoning Board.
John Evans stated in the summer of 2008 Rishi Real Estate had applied for a CUP (Conditional Use Permit) at a shopping center they have on State Road 3, north of the Bennet Causeway; after extensive hearings, the matter was denied by the Board five to zero; Rishi Real Estate and he appealed it to the Circuit Court, and they ruled three to zero that the Board should have granted that CUP based on the evidence presented; stated he would like to introduce some evidence; first he would like to introduce the Binding Development Plan (BDP) that they are proposing as well as the record of the Circuit Court hearing; and it is probably not necessary, but he would like to re-introduce it anyway. He stated his client, Dr. Raam, is not a litigious person, and after the Court ruling, they decided to do what they felt would be best for the neighborhood, so they sat down and decided what Mr. Raam wants, and what he would like to have at this site is a Mom and Pop Italian Restaurant that might serve beer and wine, a Sushi Bar that would serve beer and Saki, very low key, no bands, no bars. He advised a Binding Development Plan to agree to put substantial limitations on the operation of this project to minimize the impacts to the neighbors in the subdivision to the west; he is limiting the seating, hours of operation, no arcade games, if they are serving alcohol there will be no more than three televisions so people do not sit down and perch all afternoon and get drunk, it will not be a sports bar as such, it will be the kind of restaurant that they are talking about doing, and no bar separate from the restaurant is allowed. He stated he feels his client has made tremendous concessions to the neighborhood; he wanted to thank Chairman Nelson for having a neighborhood meeting; stated it was the way it should be; the neighbors came, they expressed some concerns, and he and his client understood those concerns and modified the BDP to address most of the neighbors concerns; and he feels that is the way it was done in the old days. He stated that Chairman Nelson worked hard to get a concession between the property owner and the neighbors to get a reasonable agreement; and that they would appreciate the Board’s support.
Chairman Nelson stated that the Board would reserve the remainder of the time for any rebuttals, and that Mr. Evans did not commit to anything, because otherwise he would be going to jail.
Ray Scarpa stated that he lives in the subdivision behind the Rishi Business proposal. He stated that he is against this business for three reasons; one being they are going to serve alcohol across the street from a bus stop, and that has always been his main concern; and he has fought this thing three times, a bar, Diamond’s Own Billiard Parlor, the Sports Bar. He stated he is very concerned about them serving alcohol across the street from a bus stop; the other concern is the intersection that is there; and people consuming alcohol, would make it even worse. He stated that another concern that he has, and he appreciates the efforts with the BDP on the property, is that there is another unit that is not owned by Rishi Real Estate, and once a Conditional Use Permit (CUP) is
permitted in this property, how easy it would be for the one unit that he does not own to open up a bar; and any other kind of business that is going to serve alcohol, it would be that much easier for them to get a full alcohol permit.
Kathy Tidwell stated she has lived in the subdivision behind the Rishi property for 10 years; stated the reason she is against this, for one thing, she teaches for Brevard County School Board, and that is a bus stop there, and she teaches her children not to drink, and drive, but yet someone can open something like this in a neighborhood; the Causeway Diner is down the road, and they do not have alcoholic beverages, and she attends it very frequently; she cannot understand why this is the fourth time now that they are here and asking the Board to please deny the CUP, because it does not fit the neighborhood, or the area; inquired why would they want to open this kind of business up when the Space Shuttle is going to be closing next year; and she does not understand why they would want to consider a business failing at this time, as there is nothing going on in that plaza except for a thrift store. Stated she does not understand why the Board would want to grant a CUP in a residential area; she is a teacher, and she tells the kids do not drink, but yet it is fine for the Board to approve a CUP for this neighborhood; she is thoroughly against it; the kids present in the morning and in the afternoon; this is a bad intersection; there have been several accidents in that area; there is no red light, no way to get out of their subdivision; stated that someone had dropped a bunch of pallets on the road, and they are still sitting there; there are potholes; and there is only one way in and out of the subdivision. She stated that the entrance and exit to the subdivision is very limited; and questions the Board as to whether or not it has even been out there to look at the area. Stated she is not against development, she is against the CUP; and asks the Board to please deny the CUP.
Kathie Murr stated she also lives in the subdivision and that she is the current President of the Sunset Groves Homeowners Association; and as the Board has heard form previous members of the subdivision, they have spent the last four years fighting to keep alcohol away from the entrance to their subdivision and from their children’s bus stop. She stated her concerns have to do with the State, the County, and the rules that they have to abide by; and she feels that there needs to be big changes made. She advised in the 2004 – 2005 timeframe they fought LaCourt to keep the Billiards hall out of their shopping plaza; they hired a lawyer and a property appraiser; at that time they spent over $8,000 for a subdivision with 45 homes; and that is an unreasonable cost and expenditure for the County to expect them to go through every six months. Stated she wants the Board to understand how unreasonable the situation is for 45 homes to spend that money, because the developer can re-apply every six months, so something needs to be done or the laws need to be changed. She stated they have elected the Board as their representatives; when they hear from the County’s lawyers over and over again that the burden of proof is on their Homeowners Association and that they need to hire lawyers and appraisers, which they cannot afford to do over and over again; and inquired what is the Board’s responsibility. She stated that last year they shot all kinds of holes through Rishi Properties Binding Development Plan that they had presented; they talked about how it was only going to be 150 seats, but the site plan showed 200
seats, and the website that Grillo had for the Sports Bar showed another 100-seat capacity side room; she knows this has nothing to do with today’s offer, but she wants the Board to understand that there are problems in the rules; she does not understand why the subdivision has to point out that there are things that are wrong and incorrect in a Binding Development Plan, which she thinks the County Commissioners should have some kind of representatives that are researching these items and finding these errors in advance; and it should not be put onto a Homeowners Association to find the errors. She stated she thinks things need to change, somehow, someway, and she wants the Board to understand that. Stated that in the BDP that was filed this year, this past summer, stated that Rishi LLC owned all units; the HOA came back to Chairman Nelson stating that they found that on the property real estate laws that he does not own one unit; inquired how that would play into this; stated after raising those questions, the BDP got revised; and inquired why are the HOA finding the errors, and why is there not more research done on the County side. She sated with all that was said, they really do appreciate Chairman Nelson and his staff for helping research issues and concerns that the HOA had with the original site plan, the wall, and if whether the height of the wall met the Code, and they acknowledge the fact that Rishi Real Estate, LLC has revised the BDP to limit the alcohol to only beer and wine; they also were willing to put in the constraints about the televisions to limit the time the patrons would spend at their location; possibly consuming alcohol; and they appreciate all the effort between Commissioner Nelson and Mr. Evans to get those issues resolved for them, but in the best of all worlds, they would prefer to see no alcohol served at the corner of their children’s bus stop. She stated if there is going to be some type of establishment forced upon them, this is the less of all evils; also she wants the Board to be aware that it is not something that they want, or approve of; and at any point in time they come back and want a full liquor bar or anything else, they will fight to keep it out of there.
Mr. Evans stated under the law a Conditional Use Permit means that it is an allowable use in that particular Zoning district under certain conditions, and if the applicant meets those conditions, then it should be approved; he believes that is what the appellate court said, was that Rishi Real Estate, LLC met those conditions, and the opposition did not rebut those conditions; and he believes that is significant. He stated that was an application for the sale of alcohol and with alcohol, hard liquor, and this is a significantly less impact. He stated as to why things change, normally the applicant files this by themselves, and they come in the office; he did ask for 200 seats in the last BDP, and a 100 seat side room; they said he was being greedy; the attorney starts to limit the client down to become more reasonable; and that is why there is conflict between what is initially filed, and what is presented to the Board; and during the process of Planning and Zoning Meetings, conversations with staff, the client limits the application, it is a changing thing before it gets to the Board. He stated the HOA asked why Rishi Real Estate, LLC is doing this now; it has taken a year and one half to get this BDP together; when a tenant comes in the landlord can not say that they are going to get a CUP for them and it is going to take a year and one-half, that tenant is gone, they want to be ready to out a nice family-orientated type restaurant in that shopping center; and they think it is good for Merritt Island.
Chairman Nelson stated that it occurred to him as the Board was doing the briefing today that the seeds of this occurred when the County years ago decided in effect to put in an Industrial PIP Zoning in front of a Residential area, because what happened was this went before the judge and the judge stated that it is something as simple as a CUP in an industrial zone; it did not make sense to them; and the attorneys laughed about it; it was a decision made by a previous Board that the current Board has been stuck with; and they have been in somewhat of a spiral ever since related to that. He advised Kathy Tidwell raised an interesting question that needs to be looked at; there are no advocates for the community, and the Board is not allowed to be an advocate; it is held to an affected standard that makes the Commissioners judges in this process; so the community is at a disadvantage; and that is something that he would like to look at to see if there is any ways that the Board could, in some future point, not related to this, but as a process figure a way of getting some help to the citizens, because it is an expensive circumstance for them to deal with. He stated the intersection is troublesome, but the problem is he cannot change it related to this request; that was approved as part of the industrial and the residential uses, so he is going to be dealing with the Department of Transportation (DOT); he did not want to offer that in advance of this, because he does not want to make it condition to this, but he will be working with them for State Road 3, and he will see if some improvements can be done in conjunction whether it is through his MSTU or working with the State to try and improve that; and the bottom line is, if the Board goes back to Court, they are not going to fair any better. He stated his appreciation to Mr. Evans and his client for reducing the numbers and be willingness to listen to the community, in particular their request for some of the elements that would have led to people sitting for a longer period of time; hopefully as Mr. Evans said it will be just a family type restaurant that it never evolves into what some fear could happen.
There being no further comments, motion was made by Commissioner Nelson, seconded by Commissioner Infantini, to approve Item V.A.2, which was denied previously by the Board. Motion carried and ordered unanimously.
PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATIONS
OF OCTOBER 19, 2009
Chairman Nelson called for a Public Hearing to consider recommendations of the Planning and Zoning Board of October 19, 2009:
V.B.2 (Z0910401) – The Viera Company and A Duda & Sons, Inc.’s request for a change from PUD/DRI & BU-1 to PUD/DRI on 2,884.02 acres more or less located on the south side of Fay Boulevard, east of Grissom Parkway, which was recommended for approval by the Planning and Zoning Board.
George Kramer stated the item before the Board has been before the Board in the past, in smaller means in West Viera; the PUD amendment today is related to the Central
Viera PUD, which generally are the lands within the DRI that are west of I-95; there are
seven specific items that they are seeking to address within this amendment; five of which apply to the entire Viera central PUD; two apply specifically to the Towne Center District, which is approximately 200 acres just south of the Government Center, east of the Stadium and west of Lake Andrew Drive; and stated one of the great things about PUD Zoning is working with Planning, Zoning, Environmental Land Development, and even Fire Safety to really get into the details of master planning, particularly for this area, which they are very excited about as is the Viera community. He stated he wants to quickly go through the five changes to the Central Viera, and he views them more as housekeeping items; the first is the re-zoning of approximately three and one-half acres from BU-1 to the Central Viera PUD, that was the site of a Presbyterian Church; that site was moved with The Viera Company; second, the transfer of Industrial Use from parcel five, which is the land south of Wickham, to parcel three to the areas north of there; and number three, the discontinuance of zero lot line development from parcel four. He stated he wants to address some of the smaller lot development within the Towne Center District; they no longer need that provision for parcel four; number four, the separation of residential–commercial development timing, that was something that was in the agreement back before Viera had a mix of uses there and there was a concern that it would develop put as purely residential area, they are happy to report, and as the Board is well aware, it is a vibrant mixed use community; number five, deleting the DRI equivalency matrix, as a PUD attachment, that is going to continue to be a part of the DRI, but as it updates as part of the DRI, they do not have to worry about the consistency between the PUD, when looking at that equivalency matrix they would go to just the DRI development as opposed to looking at the PUD as well; stated again, the Towne Center District is 200 acres that they talk about; they view this as the downtown, as the main street, the core of the Viera community; and they have done extensive public involvement over the last five years. He stated to talk about some of the uses that community members would like to see there, and this is going to provide that identity when people from all across the country and around the world talk about Viera, they are going to think of this area because it is really going to embody the heart and soul of the community, so they have proposed in order to provide a more urban environment unlike anywhere else in the unincorporated areas of the County; and they have proposed a set of alternative development standards. He stated those alternative development standards make a vibrant community and it is functional. He advised there are mixed use and commercial areas; and there will be some retail shops on the ground floor, possibly some residential units above, and a mix of office-retail and residential in the core. He stated there are some higher density apartment or condo buildings between Park and Lake Andrew Drive; the areas by the wetlands are anticipated to be a higher density small lot single-family detached, some bungalow types, and again it will be a little longer walk but the residents will be able to take a nice stroll up Park Avenue into the Viera Towne Center; and one other thing he would like to point out, the Towne Center park would be a great opportunity for community gatherings, parades, art festivals, and that sort of thing within that area. He stated in the commercial portion they would like to have on street parking, and it is a narrower pavement width; and that does two things, it slows traffic down, and it provides a shorter distance for pedestrians and shoppers to get from one location to another. He noted that currently as they understand it, County Code requires Board approval for any single-family detached lot smaller than 50 feet, and showed some examples of some 45-foot lots in Baldwin Park, when properly planned and integrated with green space, a nice single-family product smaller than 50 feet; the area around the wetlands is where they anticipate some of that residential product; there is an alley that provides vehicular access to the rear of the homes, but provides a common park area, a very nice feature; there are several in the Baldwin Park area and they would like to employ that opportunity in the Towne Center; there is a residential street with parking on one side with smaller pavement widths to slow traffic down along with the on-street parking, and also create the higher density to allow the mix of uses within the more urban area; the alleys can be utilized for development along the muse; they could also be utilized for homes that front a street as well, in providing a second option in having garages in the back; and there would be more front porch and pedestrian orientation towards the front. He stated that the project engineer, Hassan Kamal, has worked extensively with engineering and fire safety, so the last change they have is working with the Fire Department to talk about what kind of trucks they would need to access smaller roads and alleys.
Hassan Kamal stated they have been working with a variety of staff on all the different issues regarding the alternative development standards, more specifically they have been working very closely with the Fire Department to address their concerns on how this kind of project will be serviced; this is not something you find in Brevard County; some of the equipment and street dimensions they have are something the County does not see; stated they are working hand-in-hand with them, because what they are proposing are narrower streets, with on-street parking; so after a lot of meetings and a lot of discussion, the Fire Department came back with a suggestion that they utilize what they call either mini pumper trucks, or midi pumper trucks to help provide additional coverage for the Towne Center area; they have asked that The Viera Company purchase one of those vehicles for the Towne Center; stated the Developer will purchase either one mini or midi pumper truck that will be utilized to provide additional coverage for the Towne Center development; the Fire Department is in the process of looking at the specifications for those vehicles, making sure they get the best vehicle for the insurance rating for this project, and best meets their needs and the needs of the community; and he feels they have reached agreement with how to deal with the Towne Center project, and they are going to continue working with the Fire Department to bring something back to the Board when they get to the overall west Viera PUD, and the larger project size.
Chief Larry Collins, Fire Rescue Director, stated that they are happy to work with The Viera Company and A. Duda and Sons, Inc. on this project; they have had some last minute flare-ups, but have been able to come to an understanding as to how to move this forward; and he feels that they represent that very well. He stated the narrow alleys, muses, and those kind of things give the Fire Department access problems with the big trucks they have, so in order to deal with that, and allow that feeling, the neighborhood with smaller access, instead of requiring sprinklers for everything and keeping that distance, what the Fire Department has agreed to do was use the mini or midi pumpers; that gives them the access, and the sticking point; what the Fire Department would like to do is a midi pumper, a mini pumper is a smaller version of a midi pumper, and a midi pumper is a smaller version of a big pumper; for ISO purposes, each of those carry a certain rating with them; and they are thinking the midi pumper is best, but they need to do some research to make sure that the turning radius and what the size of the vehicle accommodates. He advised they may have to go down to the mini pumper, but the kicker is, if they go down to the midi pumper, they can get a Class A pump, 500 gallons per minute, and 300 gallons of water on that short wheel base, which gives them an ISO rating or a full Class A Fire Pump; if they do the mini pumper, it only gets half of that rating; that, of course, impacts the insurance rating and the insurance premium so that people will live there; they want to research that to make sure that it is the correct piece of apparatus that gives the best insurance rating to get the lowest rate they can, and serves everyone’s needs; and from their standpoint, they want to be able to make sure they understand from this point forward that if any more development that goes on that this is the standard that they will adhere to, so that they can plan accordingly. He noted they do not have to keep coming back and the Fire Department does not have to keep going back to them is the way it is resolved; and if they come back to the Board and say this is what we are going to do, the Board will know that the Fire Department is on top of it, and that they have worked with them, so the Board can feel comfortable about it.
Commissioner Infantini stated she has one concern about a community like this, and that Mr. Kramer had said that this layout is not binding; she likes the example that they are presenting, and she is not certain what the other alternatives are that would be able to do with this same 45-foot information; and she is concerned about approving something knowing that there is not a guarantee they are going to lay it out give or take almost exactly like this, because this a wonderful set up all across the Board.
Mr. Kramer stated that he mentioned as they looked at the 45-foot product specifically, that the connection and proximity to common open space is very important, and if there is a smaller lot, rather than having a big backyard, they can have a bigger front yard; there are two assurances with regard to protected open space on the detailed plan that will be approved as part of this, the Towne Center Park, so the area just north of where the big community gathering space is, that is protected open space on the detailed plan, as well as the wetlands system, not just wetlands, but there is upland area around that is accessible as well; that area is, of course, where all those proposed smaller lot homes would be; during different economic conditions, there is the ability to line up all of the developers into a more detailed plan for 200 acres in a very fast development scenario; this 200 acres is going to develop over a longer period of time and hopefully it will develop quicker as the economy improves; but they have to set forth a plan that will
accommodate growth over time, and this area is going to grow more organically, so they want to provide the development standard to allow for this and have the mixed-use and the open space areas for that future development as it occurs.
Mr. Kamal wanted to add one more thing to what Mr. Kramer had said; stated some of the other assurances that they have is in alternative development standards, the very detail specifications for street types that are going to be used, the block links, building heights, building setbacks, and parking configurations so that the pictures that are in front of them, like Mr. Kramer said, they are not building Baldwin Park, but those alternative development standards will provide that form of development that is graphically depicted upon those pictures; so each street may not come up in the exact same locations as are in the block diagram, but the form of development will be there; and that is regulated by the alternative development standards.
Rick Enos, Zoning Official, stated in the Zoning Code it does state that wherever the Board of County Commissioners does approve a lot width of less than 50 feet, then all of those lots have to have substantial relationship to common open space, so they will not be block of these small lots, unless they are on an open space like the ones that are shown in the pictures.
Chairman Nelson stated that it will not be a substandard subdivision.
There being no further comments, motion was made by Commissioner Bolin, seconded by Commissioner Anderson, to approve Item V.B.2 as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.
Upon motion and vote, the meeting adjourned at 5:48 p.m.
ATTEST: _________________________________
CHUCK NELSON, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA
____________________
SCOTT ELLIS, CLERK
( S E A L )