MINUTES OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS

BREVARD COUNTY, FLORIDA

 

 

August 6, 2009

 

 

The Board of County Commissioners of Brevard County, Florida, met in regular session on August 6, 2009 at 5:03 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida.  Present were:  Chairman Chuck Nelson, Commissioners Robin Fisher, Trudie Infantini, Mary Bolin, and Andy Anderson, Assistant County Manager Mel Scott, and Assistant County Attorney Morris Richardson.   

 

 

 

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 raise their hands.  If a Commissioner has had communications regarding a rezoning or Conditional Use Permit request before the Board, the Commissioner must disclose the subject of the communication and the identity of the person, group, or entity, with whom the communication took place before the Board takes action on the request.  Likewise, if a Commissioner has made a site visit, inspection, or investigation, the Commissioner must disclose that fact before the Board takes action on the request.  Each applicant is allowed a total of 15 minutes to present their request unless the time is extended by a majority vote of the Board.  The applicant may reserve any portion of the 15 minutes for rebuttal.  Other speakers are allowed five minutes to speak.  Speakers may not pass their time to someone else in order to give that person more time to speak. 

 

The Invocation was given by Dave Dingley, District 4 Commission Aide.

 

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

 

 

 

Chairman Nelson stated he has given the Commissioners a copy of the Federal Space Policy Agenda that the Board approved on Tuesday; he has had some discussions with some of the parties involved; there is an issue with the portion of the Agenda, which is the, “authorization and appropriate funding for an FAA-sponsored multi-university Space Transportation Research & Development Institute, based in Florida”; and there is not consensus on how that portion should be worded.  He stated he would like to recommend the Board withdraw that item from the Agenda; if it is reworded it can come back to the Board; but at this time, he would like to pull it from the Agenda. 

Motion by Commissioner Bolin, seconded by Commissioner Fisher, to withdraw the portion of the Federal Space Policy Agenda reading, “Authorize and appropriate funds for an FAA-sponsored multi-university Space Transportation Research & Development Institute, based in Florida,” to be re-worded and placed back on the Agenda at a later date.  Motion carried and ordered unanimously.

 

 

Chairman Nelson called for the public hearing to consider the recommendations of the Planning and Zoning Board of June 8, 2009 and July 6, 2009.

V.B.5. (Z0906401) Dian Outlaw’s request for a change from AU to IN(L) on 2.50 acres, located on the west side of Murrell Road, north of Winding Meadows Road, which was recommended for approval by the Planning and Zoning Board. 

 

THIS ITEM HAS BEEN WITHDRAWN BY THE APPLICANT

 

 

V.B.9. (Z0907104) – Luella Anne Greenea and Margo G. Zauner, Co Trustees of John J. Greene Trusts’ request for a Small Scale Plan Amendment (09S.03) to change the Future Land Use designation from Residential 4 to NC (Neighborhood Commercial), and a change from RU-2-10 to BU-1-A on 6.18 acres, located east of Carpenter Road, south of S.R. 46, which was recommended for approval by the Local Planning Agency and the Planning and Zoning Board.

 

Motion by Commissioner Infantini, seconded by Commissioner Fisher, to table item V.B.9. to the November 5, 2009 Board meeting, at the request of the applicant.  Motion carried and ordered unanimously.

 

 

V.B.10 (Z0907105) – Peppercorn & Peppercorn, Inc.; Travis & Gail Giffey; Keith Marline Skalet & Brenda C. Skalet; and John W. Moorer, as Partners in the Mims Property Joint Venture Partnerships’ request for a change from AU & RRMH-1 to RU-1-11 on 84.72 acres, located south of Irwin Avenue, east of U.S.1, which was tabled by the Planning & Zoning Board to the August 17, 2009 Local Planning Agency meeting.

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to table Item V.B.10. to the October 1, 2009 Board meeting.  Motion carried and ordered unanimously.

 

 

Motion by Commissioner Bolin, seconded by Commissioner Fisher, to cancel the September 3, 2009 Zoning meeting.  Motion carried and ordered unanimously.

 

 

 

Item V.A.1. (Z0905202) – CURTIS DEEM’S request for a CUP for Alcoholic Beverages for On-Premises Consumption (beer & wine only) in a BU-2 zoning classification on 0.59 acre, located on the northeast corner of Merritt Island Causeway (SR 520), and Rose St., which was recommended for denial by the Planning and Zoning Board. 

 

Rick Enos, Zoning Manager, advised Item V.A.1. is an application for a Conditional Use Permit for alcoholic beverages for on-premises consumption; the application was denied by the Planning & Zoning Board with a vote of 5:3; and the CUP is for the consumption of beer and wine only, but not associated with a restaurant.   

 

Bob Pirie advised he is a resident of the Island Pointe Condominiums.  He distributed to the Board, and to the Clerk, a copy of an article from the Florida TODAY, and a copy of the residents’ response; and he also distributed to the Board, and the Clerk, a zoning map depicting the immediate area.  He stated the residents of Island Pointe Condo are opposed to the CUP; the property is close to a large residential area and incompatible; the proposed use would endanger the safety of school children at nearby Merritt Island Christian School; and he has spoken to the Superintendent directly and he is concerned not only about safety, but about the poor example a bar would set for young, impressionable people.  He stated the CUP application fails to meet criteria in County Policies and Regulations dealing with Zoning and Future Land Use; a bar on the subject property would be a major public safety and welfare issue, not only for Island Pointe residents, but for any County resident or visitor passing through the area; the chances for accidents, injuries, and deaths would be greatly increased as impaired drivers exiting Boneshakers would be making left turns across six lanes of high-speed traffic on SR 520, or they would be exiting on Rose Street, heading north where they would come to the Island Pointe gate on Myrtice Avenue; and there is also great potential for accidents with speeding vehicles on Myrtice Avenue that use it as a shortcut to avoid lights and delays on SR 520.  He stated Mothers Against Drunk Driving (MADD) is formally opposed to the CUP and has cited 52 alcohol related accidents on Merritt Island in 2007; noise from the bar and parking lot would disturb residents at Island Pointe; and a bar would increase chances of crime along SR 520 and at Island Pointe.  He noted a vote to disapprove the CUP would send the right signal to youth who might be tempted to drink and drive; and it would be popular with parents of driving-age youth.  He advised both the County Planning and Zoning Board and the Merritt Island Redevelopment Agency denied the request; he sees no compelling reason to go against the recommendations of those bodies; and the proposal is inconsistent with the future plans for the immediate area, including a park dedicated to the history and contributions of the fishing industry to Brevard County.  He stated there are already enough bars in place on Merritt Island to purchase alcohol; if the application is approved, there will be four such places between the Indian River and the northeast corner of SR 520 and North Tropical Trail; that is an average of one on every block; and another bar at the gateway to Merritt Island would create a poor image and could discourage viable and desirable businesses from locating there.  He stated he does not believe the applicants have demonstrated the level of responsibility that should come with the privilege of selling alcoholic beverages; the applicants have said the residents should not have any concerns because it is just another bar; but that shows a lack of consideration for the concerns of others; and he respectfully requested the Board deny the Conditional Use Permit. 

 

Deanna Reiter stated she and her husband live in the Island Pointe Condominium community; they bought their condo to live in it; they like to open the windows to enjoy the breeze off the river; but the noise from the proposed bar would be a major factor for them because they love to leave the windows and doors open.  She stated her building has seven small, school-age children and two high school students; considering there are three more larger buildings, there are quite a few children in the community and she is concerned about another bar coming into the neighborhood; the Merritt Island Christian School and its outbuildings are right across the street from the proposed Boneshakers Tavern site; and the school does not have school buses, so children have to wait for public transportation, which is very close to the proposed site.  She noted on Wednesday nights there are over 65 kids at the fire house; the building is open to the youth on Merritt Island where they play basketball on a court that is across from the proposed bar; and on Friday nights, the football field is packed with kids, some of which will have to walk home past the proposed Boneshakers Tavern; and the bar will bring extra traffic to an area that is already a traffic nightmare.  She stated the residents do not need impaired drivers adding to the danger; she hopes she can count on the Board to keep the area kids safe; and she hopes the Board denies the application. 

 

Michael Kanis distributed photos to the Board and to the Clerk.  He stated at one of the previous meetings, there was an implication that the tavern would not be seen from the condos; the first photo is from the front door of his unit; there is another photo of the entire complex from the tavern’s parking lot; another photo is a close-up of the condo itself showing doors and windows; and there are a couple of photos taken by another resident.  He stated the reason he moved to that particular area of Merritt Island is because of the improvements that were being made there; he believes those improvements were due in large part to the efforts of the Merritt Island Redevelopment Agency (MIRA); the goal of MIRA is the betterment of the Merritt Island Central Business District; in his opinion, the benefits achieved by MIRA have been a reduction in crime, esthetics, and infrastructure improvements; and MIRA has encouraged economic vitalization, and possibly an increase in tax revenues, especially from the condos.  He stated he does not think a tavern would encourage other businesses and increase the tax base; the application was heard by MIRA one time and was tabled due to the number of questions the Agency had; and also at that time they had reviewed the findings of the Planning and Zoning Board meeting, which denied that the CUP be authorized.  He advised some concerns of MIRA were the cost of renovations, bringing the building up to Code, and the septic system; and MIRA denied the request after two hearings.  He stated other concerns in the application were administration and enforcement of zoning regulations, which includes auto and pedestrian safety, interference with adjacent properties, sight and noise impacts, and screening and buffering along with the consistency of merging patterns of development; and the question is how the tavern fits into the community plans.  He stated he respectfully requests the Board of County Commissioners note the findings of the Merritt Island Redevelopment Agency and Planning and Zoning Board and deny the request for a Conditional Use Permit. 

 

Dan Deegan stated he lives in the Island Pointe Condominium and is one of the Board’s newest residents; he recently retired from the Monroe County Sheriff’s Department in Rochester, New York; and he has 28 years of law enforcement experience.  He stated he has nothing against the applicants; he has nothing against free enterprise, or the applicants’ dream or desire to open a  business  or  bar;  but  based  on his training  and experience, a bar in such close proximity to Island Pointe is in no one’s best interest because of noise, among other things.  He stated the demographics at Island Pointe range from infants to retirement-aged people; and the noise and congestion the tavern will bring is going to cause a problem.  He stated he specifically chose to live in this part of Merritt Island based on vacationing in the area for years; he and his wife purchased their home a year ago; and he has been commuting back and forth, but she has been in Island Pointe full time.  He added, within one mile of Boneshakers Tavern there are 22 vacant storefronts; it would be a much better idea to replace a bar establishment in one of those vacant storefronts as opposed to the building where it is currently proposed; and if the tavern is put somewhere else, he will be one of the first customers.

 

Joe Spaziani stated he lives in the Island Pointe Condominiums; and he would like to thank the Board for its patience and understanding as the property owners voice their concerns.  He stated the condo community is sensible and not a pretentious group of people; the condo residents have no issues with the women who want to open the tavern; but there seems to be a lack of detail, approvals, understanding, and communication.  He stated the Island Pointe community has been very supportive, hoping to live up to the vision the residents believed was the main reason for the condos; the condominium eliminated many eyesores that people complained about, such as trailers, vacant buildings, et cetera; and he is working with Code Enforcement on the lot next to the condo on the north end, to get it cleaned up. He stated he cannot imagine the subject building holding more than 20 people; and inquired if the parking lot is fixed to increase revenue, how could 20 people in a bar provide revenue.  He stated the residents of Island Pointe support many of the businesses that have been established in the area, such at Dock’s Bait Shop, 7-Eleven; the titles of those businesses tell what kind of business they are; the proposed business will be called Boneshakers; the name gives it away; and the owners can change the name, but the intent will be the same.  He stated the proposed tavern will be a beer and wine establishment, with nothing that supports the growth of the community with the diversity of businesses that are in the best interest of the people of Merritt Island; and he would respectfully request the Board deny the application for a Conditional Use Permit. 

 

Phil Finney distributed documents to the Board and to the Clerk.  He advised he has lived at 436 Magnolia Avenue on Merritt Island for 39 years; he has lived on the 400 block of Magnolia Avenue for 55 years; and so he has been a long time resident and he has seen a lot of things.  He stated he owns and manages the commercial building and property at 423 West Merritt Island Causeway, which is across the Causeway from the building being proposed for a tavern; and the building is currently leased to Firehouse Graphics, which does good business.  He stated he would like to share the Incidents Report from the Brevard County Sheriff’s Office; the report covers the area of the subject property; also included is the Uniform Case Reports, which are reportable crimes; and the Board can see those crimes include fraud, robbery, stolen property, and a stolen vehicle.  He stated other calls of interest include criminal mischief, indecent exposure, narcotics, gambling, prostitution, retail theft, suspicious person, suspicious vehicle, and suspicious incident; the time period of the reports are from July 20, 2008 to July 20, 2009; and traffic calls were not included in the reports because they would be something that would happen on the roadway and not on the property.  He noted there were 349 calls to the Sheriff’s Office in a one year period, which is equal to one call per day; there were 47 non-traffic calls on Magnolia Avenue; and there were 16 non-traffic related calls to Myrtice Avenue.  Mr. Finney stated in closing, he would urge the Board do deny the request for the Conditional Use Permit.

 

Marilyn Finney stated she would like to speak about the Merritt Island Redevelopment Agency (MIRA) because it has been in existence for 20 years; and MIRA has done a great job in the area of improving the properties in its use.  She stated MIRA’s mission is to implement the Merritt Island Redevelopment Plan as adopted and amended by the County Commission; and the plan was prepared under the direction of MIRA, pursuant to the requirements of Chapter 163, Part III, Florida Statutes, under the authority of the Board of County Commissioners.  She stated the applicants were twice requested by MIRA to come back with a proper site plan, but they have not been forthcoming with a site plan. She advised MIRA has set Merritt Park Place as its number one priority in the region; Phase I of the Merritt Park Project is complete, which dealt with some infrastructure on Grove Street and MacLeod Street; Phase II will deal with Parnell, Tangerine, Hibiscus, and Myrtice Streets, which are getting infrastructure improvements, sidewalks, sewer, et cetera; and it will eliminate approximately 150 aging or failed septic systems within that proximity.  She stated the vision of MIRA is that Merritt Park Place will become a quaint and picturesque town center, with a pedestrian-friendly and esthetically pleasing environment for both commercial and residential uses; and Phase III includes the marina basin.  She stated there is a structure in place by which applications are to be processed within the Merritt Island Redevelopment Agency; she urges the Board to follow the process and the recommendations of those bodies that have come before it and made recommendations to deny the permit; and she is concerned about the impact in the community, and that it will be a backward step in the progress that MIRA has made over the last 20 years.

 

James Allen stated he is opposed to the Conditional Use Permit due to the anti-social activities that accompanies bars; and unless the police and EMT’s in Brevard County are not very busy, he would suggest the Board deny the request.  He noted he is originally from New Orleans, which has the highest murder capita in the country primarily due to the influence of bars and the clientele that supports bars. 

 

Tom Norwood stated he is speaking on behalf of Rick Griffiths, who is the owner of the Crab Shack on Merritt Island; and Mr. Griffiths is opposed to the Conditional Use Permit.  He stated historically the area used to be a bar area; he owned the Island Casino; and there was also the Brown Jug, Docks Bait House, and the Oxbow Tavern; but all those bars are gone now.  He stated patrons can buy beer at Docks Bait House, but Mr. Griffiths is not going to sell any alcohol; there is a Conditional Use Permit on the property, and one day it will be developed as the Blue Crab Cove Inn, or Blue Crab Cove; and he wanted to state Mr. Griffiths position that he is against a bar being in that location.  He stated he does now see how the proposed tavern could make any money, unless the owners do something to draw people to it.

 

Billy Stocks stated he thinks the Island Pointe Condo residents are being a bit hypocritical because of the fact that there is Blue Crab Cove Marina being developed, which will have hundreds of boats; and the marina will be serving beer, liquor and wine.  He stated the subject property has been abandoned for years; for Ms. Stocks and Ms. Davis to have the opportunity  to make something of the place, would be good  for Brevard County and  the surrounding areas; therefore, if the Board grants the CUP, it will be bringing revenue to the County and surrounding areas; and if not, the building will remain abandoned and an eyesore; but if that is what the residents of Island Pointe want to see, then he does not know what to say.

 

Donna Davis stated she is one of the applicants requesting the Conditional Use Permit; the item was tabled at the last Board meeting because there was no expert witness on either side; and again, there is no expert witness.  She stated she feels they are following all of the guidelines to get a Conditional Use Permit for the building; when submitting the application, it was not a requirement to have a traffic expert; there is a lot of traffic on SR 520 as it is, and she does not see where there would be added traffic; and she is requesting the Board approve the Conditional Use Permit.  She stated the grass on the property has not been mowed; the building is run-down; there is a lot of work that needs to be done; and they are very much aware of that; but they are willing to make that investment to spruce it up and do the landscaping.  She stated she understands the building is not going to see a lot of people; she does not want anything big, as they are just starting out; and eventually they will move onto bigger and better places; but right now, the subject property lease was in their budget.  She stated she understands the concerns of the Island Point Condo residents; and she does not want added traffic either.

 

Cheryl Stocks advised the staff comments state, “Current zoning can be considered under the Future Land Use designation, Section 62 – yes.”; “Proposal can be considered under the Future Land Use designation, Section 62-1255 – yes.”; and “Would proposal maintain a acceptable levels of service? – yes.”  She stated she is confused because they fall within the Codes and there still has not been any expert witnesses; the residents provided documentation, but it is written on paper; no one knows if what the residents said is true or not; and as far as the children, she has been there often during the day and she has never seen any kids walking in front of the building.  She stated when they applied for the CUP, she was not told they had to be a certain number of feet of residences, or that residents even had a say-so in the opening of an establishment.  She stated she did not know there was going to be so much controversy; it is going to be a tavern, not a bar; a lot of people got off track with what they are trying to do; and she willing to work with them.  She stated they can change the name of the tavern and change the hours of operation; there will be no outdoor activities; there is going to be a jukebox, but there are rules about how loud those can be; and people sitting next to each other want to be able to have a conversation, not screaming because of loud music.  She stated a lot of people like to stop and have a beer or a glass of wine; they are not asking people to come in to sit for four or five hours at a time; she does not believe there have been any facts that have been brought up that says they cannot open a tavern; and it has all been speculation.

 

Commissioner Anderson inquired if the requested CUP falls within the current Codes.  Morris Richardson, Assistant County Attorney, advised it is allowable in that location under the current Codes if the applicants meet all the criteria established by the Ordinance.  Commissioner Anderson inquired if the Board denied the CUP on behalf of the neighbors, would the applicants have the ability to litigate and win against the County.  Mr. Richardson stated he has heard evidence that supports whatever the Board’s desire is on the request. 

 

Commissioner Anderson stated he wants to support the residents; but he has to look out for all the taxpayers of  Brevard  County;  and  he  is  asking  the  other  Commissioners  to  show  him something that violates the Code as written.  Chairman Nelson stated he does not know if it as much of a Code violation as it is making a determination on a variety of factors that include public safety, health and welfare; it includes character of the property; there has been a variety of changes in conditions of the property since it was originally zoned; and so it is not an answer of yes or no.  Commissioner Anderson stated he needs to ensure that the Board is protecting the taxpayers from litigation.   

 

Randy O’Brien stated where the location of the proposed establishment is the entranceway to Merritt Island; he has been appointed to the Tourist Development Council; he is not speaking on the Council’s behalf, but many tourists come off I-95, drive through Cocoa, over the bridge and across Merritt Island to get to the beach communities and hotels; and it is not in Merritt Island’s benefit as a community to have another bar along that route.  He stated when coming onto Merritt Island, the first thing anyone sees is a motel with no name used by prostitutes; there are four or five deaths per year in the motel; there is drug abuse at the motel; and only two buildings away is Wiggles, which is a small, topless bar.  He stated the issue is not whether the community needs another bar establishment; it is not needed; but the question is if it is appropriate, and is the use of the Board’s zoning powers being used appropriately at this time if it votes in favor of it; and he feels the Board should deny the request because it is inappropriate, there is a six-lane highway without a divider that could become very dangerous for someone leaving the bar after happy hour.  He stated the shift change at Kennedy Space Center affects all of Merritt Island; the workers at KSC get off at 3:30 p.m. and go to work at 6:00 a.m.; there does not need to be more people on SR 520 who have been drinking and trying to cross six lanes of traffic; the Board should not participate in being an enabler for this part of the community; and if the request is approved, it means the Board is enabling those alcoholics, prostitutes, and drug users who would go to the bar because of its location.

 

Commissioner Fisher inquired if the applicants had a meeting scheduled with MIRA after the Board tabled it at the last meeting.  Ms. Davis replied no, they have only met with MIRA once, which was prior to the Planning and Zoning Board meeting; after the Planning and Zoning Board denied the request, they did not meet with MIRA again; and when they met with the Board, it tabled the request. 

 

Commissioner Fisher inquired if a neighborhood wants to start changing its direction, does that change normally happen when a business goes out and a new business goes into that location; the request is not a zoning change, but the Board is trying to change a use change; and inquired if that is typically when those things happen.  Mr. Enos stated the Board has a Comprehensive Plan, which describes the preferred growth in the area; there are existing businesses in the area that are grandfathered; and if the Board has a plan that it wants to go in a certain direction, the existing businesses can stay because they are non-conforming, but any new businesses coming in would have to be consistent with the character.  He stated the Board has the County’s Comprehensive Plan and the MIRA plan; both plans give the Board some direction that it wants to go in; and in this case, it is a Conditional Use Permit.  He advised restaurants are okay in BU-1 in that Community Commercial District, but there is a Conditional Use Permit that sets additional standards of review as they all do; and so the purpose is to look at those additional standards of review that deal with such things as what it is the character of the neighborhood, and would the use be compatible with the character of the neighborhood.

 

Mel Scott, Assistant County Manager, advised as far as changing community character, as a practicing planner, he would suggest to the Board that people suspect that change would come in sweeping fashion, but he would submit that a Conditional Use Permit application should be considered a rezoning and that most change to neighborhoods happen on parcel at a time; and a cumulative impact of the parcel-by-parcel decisions can be seen over a five, 10, or 15-year period; but most changes to neighborhoods established through re-gentrification efforts do not happen over night, but it is these kinds of decisions accumulatively that can make the impact regarding the vision the Board has at this time.

 

Chairman Nelson stated the subject property is in the Merritt Island Redevelopment Agency area, which is kind of a blighted area; crime has been a problem in the area; it is not the operation being opposed, it is the neighborhood; the Sheriff’s Office has done a number of patrols in the area; and MIRA is made up of people who live on Merritt Island who know the area and are involved in the process of determining character, and they have said the proposed bar is not in character with what MIRA is trying to accomplish.  He stated the character of the area has to get better because it is a hotbed of illegal activity and always has been; the best thing to have happened in the area is that the Aladdin is being renovated, so at least it is closed for a while; but the reality is that it has been an ongoing problem right on the gateway onto Merritt Island.  He stated he is optimistic that the County will end up with Blue Crab Cove, but if it does not, it is zoned for another 11-story condominium, which is residential; and even if the County is not able to acquire Blue Crab Cove, the Board still has reason to deny the request.  He stated MIRA has paved roads in the area, businesses have cleaned themselves up, there has been façade grants, and the neighborhood has begun the transition to improve; and to him, the character of the area is in the process of changing one business at a time; but to place the proposed bar next to the Aladdin is throwing gasoline onto the fire, continuing a bad tradition in that neighborhood.  He stated he does not believe a Conditional Use Permit for alcohol is an appropriate use for that location; and to him, the reason for not approving the request is the character of the land and surrounding property.  He noted prior to the Island Pointe Condominiums, there were run down marinas there; regardless of how anyone feels about condominiums, it was an improvement over what was there; and the Board needs to make sure it does not do something that devalues the condo’s property values.  He stated he believes the proposed use is inconsistent; it is continuing a negative character of that part of the community at a time when a lot of time, effort, and money has been spent trying to improve it; and he will be voting to deny the request.

 

Commissioner Infantini stated she is torn on the issue because the applicants have a business idea; she does not think the applicants will conduct their business in any way like the other businesses in the area; but at the same time, she does not know if the Board wants to set the pattern to have predominantly taverns, or bars, in that area; and she would be concerned with continuing on that path.  She advised it is under those grounds that she thinks the applicants qualify to be denied; but other than that, she wishes it was in a different location. 

 

Commissioner Anderson stated he agrees with Chairman Nelson’s contention that if the request was granted, that the property rights of the condo owners would be harmed by devaluation of their property.

 

Chairman Nelson passed the gavel to Vice Chairman Bolin.

 

Motion by Commissioner Nelson, seconded by Commissioner Infantini, to deny Item V.A.1. as recommended by the Planning and Zoning Board; and directed staff to prepare a Findings of Fact.  Motion carried and ordered unanimously. 

 

 

 

Item V.B.1. (Z0906201) – Michael A. DiChristopher, Trustee of the Morningside Beach Land Trust; Runaway Investments, Inc.; and the Sasso Corporation’s request for a change from GU to RU-1-13, with a BDP, on 3.02 acres, located at the eastern terminus of Sun Pointe Place, east of N. Banana River Drive, which resulted in a split vote by the Planning and Zoning Board, with no recommendation.

 

Richard Biondi stated he lives directly across the street from the subject property; he distributed exhibits to the Board and to the Clerk; and stated he has some questions and concerns about the proposed development.  He stated he has had a difficult time getting information; at the Planning and Zoning Board meeting, the developers said they had changed their plans one hour and a half before the meeting; and that causes some frustration.  He stated Exhibit 1 is a map from the Property Appraiser’s website; the date on the map is December 27, 2008, which is during the dry season in Florida; and the Board can see the wet areas and little rivers on the map.  He noted Exhibit 2 is an aerial photo from 2006, which he suspects is from a wetter time of year; the Board can see even more low lying areas and standing water; in the northeast corner is a dark area which flows out to the Banana River; and the other riverlets of water flow down to the canal that runs along Sun Pointe Place.  He explained Exhibit 3 shows a green area that is wetlands; the Board can see that most of that peninsula is designated as wetlands; and along the canal is a wetland setback that has extensive mangroves.  He stated at the Planning and Zoning meeting, the developer said there were a few mangroves; but he can tell the Board, having gone up and down the canal in a boat, there is a lot of mangroves along there, which is the only thing holding up the bank on that side; and that is a concern as far as the setbacks from the mangroves.  He stated he understands the developer wants to build a 20-foot wide driveway along there; the developer indicated he was going to protect the bank and the mangroves with some kind of berm; and he is not sure how that protects the mangroves; but it is a concern because if the mangroves are in any way compromised, the bank will erode into the canal.  He stated he is also concerned that if people live along there, there will be a natural tendency to want to go down there to fish; and he is afraid there will be a slow erosion of mangroves through activity that might occur.  He noted there is also a concern about sewer; at the Zoning meeting he asked what the plans were for sewer because along Sun Pointe Place is all septic tank; he does not think the developer could meet setbacks and have septic tanks; the developer said a sewer system would be put in; but his suspicion is the developer will put in gravity sewer to serve the proposed six houses, and then have some kind of lift station to pump the sewer out to the main sewer in North Banana River Drive.  He stated he does not know if there should be a lift station  in that area;  if there  is a failure of  the lift station and the  sewer overflows, there are two canals the sewage will dump into.  He stated he does not think the subject property is appropriate for development; and he would request the Board deny the zoning request.

 

Michael DiChristopher, applicant, stated the package being handed to the Board mostly addresses his second item on the Agenda, but page 10 shows the character of the neighborhood and the reason for the request for the zoning change.  He stated originally, before the Planning and Zoning meeting, he found out he could not reconfigure the lots; an hour before the Planning and Zoning meeting he was informed by staff that that idea would not work; and so the request for RU-1-13 is basically to change what is there, which is changing the non-conforming lots of record to conforming lots of record.  He advised the reconfiguration was not his idea; the non-conforming lots of record are fine and do not have to be moved or changed as far as the zoning request goes; and the request is in compliance with the Comprehensive Plan. 

 

Chairman Nelson inquired if no zoning change were made, what would be the applicant’s ability to develop.  Rick Enos, Zoning Manger, advised he can speak only to the zoning, but development is more than just zoning; from a strict zoning perspective, there are currently a number of tax parcels in the area which mostly were recorded prior to the Zoning Code, and so they are non-conforming lots of record; lots less than 50 feet wide are not buildable unless they are part of some other lot; and staff has determined that under current circumstances there are five lots that qualify as buildable lots, assuming they can get access and do not have wetland issues.  He stated the application is for RU-1-13, which is typically a 7,500 square foot lot; however, the developer has agreed, through a Binding Development Plan, to limit the number of lots to five, as well as a minimum lot size of 15,000 square feet, which is twice as big as a standard RU-1-13 lot; staff believes that from a strict compatibility perspective and from the Comprehensive Plan perspective, even with the change to the Comprehensive Plan, that the zoning requested is consistent with the Comprehensive Plan and the character of the area; but that does not mean the lots are buildable, as there is more to it than just zoning; and the item is just for rezoning. 

 

Chairman Nelson stated even if the zoning is approved, there are other circumstances and conditions that could cause the property not to be developable.  Mr. Enos advised there are other land development regulations that would come into play as well. 

 

Chairman Nelson stated one thing that has always troubled him about rezonings adjacent to wetlands or open water bodies is that the Board looks at the upland uses, but not necessarily to a piece of property which has no zoning, such as the river; and if transitioning to the river, the Board may want to lessen the density instead of increase the density or match the density because that may not be appropriate next to an open water body.  Mr. Enos stated to the extent that is reasonable, it would be represented by the Comprehensive Plan, which has established the area as six units per acre; the application is less than four units per acre because of the Binding Development Plan; and in a sense, the Binding Development Plan, provides a lower density than what is in the neighborhood. 

 

Chairman Nelson stated an approval of zoning does not give any additional ability to build or develop anything at this time.  Mr. Enos stated the zoning is just the first in a series of several regulations that would apply to the property. 

 

Commissioners Bolin, Anderson, Nelson, and Fisher advised they had discussions with Mr. DiChristopher.

 

Motion by Commissioner Anderson, seconded by Commissioner Fisher, to approve Item V.B.1. as requested.  Motion carried and ordered unanimously.

 

 

Item V.B.2. (Z0906301) – Darren M. and Sarah Marks’s request for a CUP for a Skateboard Ramp in an RU-1-13 zoning classification on 0.82 acre, located on the southwest corner of Cardinal Drive and Highway A1A, which was recommended for approval by the Planning and Zoning Board.    

 

Commissioner Infantini advised she visited the Marks’ residences one afternoon. 

 

Darren Marks, applicant, distributed letters to the Board from neighbors, and photos.  He stated his skateboard ramp is currently located on a vacant lot; he built the skateboard ramp for his kids and the neighborhood kids because the closest skateboard ramp to Melbourne Beach is 20 miles; and the ramp was built to give kids a fun, safe place to skate.  He stated his kids are ages 10, nine, seven, four, and 17 months; he and his wife supervise the kids while they skate; he originally had a smaller version of the skate ramp which was located 25 feet from his east neighbor’s window; and the ramp was there for two years with not one complaint.  He stated when he first received a notice from Brevard County, he knocked on his neighbors’ doors to see if anything could be worked out; not one of the neighbors complained about the skate ramp; there were some complaints about the kids riding mini bikes on the lot; and the kids immediately stopped riding the mini bikes, and have only ridden twice in the last 90 days.  He stated six weeks ago he met with the neighbor who sent the original complaint to try to work something out; but he was unable to do that.  He noted his lot is greater than the half-acre required and at least 75 feet in width, and 140 feet in depth; he has no problem applying for a permit for the ramp if he receives a CUP; and he would seek a variance from the neighbor to the east to comply with the 7.5-foot setback.  He stated the ramp has no lights, nor will it be used for commercial use; there will be no more than five children skating the ramp at one time; the ramp does not create any odors, nor is there any smoke, fumes, or emissions; there is no increase in traffic; the property to the east is a single story office building; the ramp is located within 20 feet of the office building window, and no one has ever complained about the noise; and he has a letter from the tenants of the office building in favor of him keeping the ramp.  He stated the skate ramp is approximately 60 feet from the neighbor to the west’s closest window; there is a single-family home to the west; the kids skate three times per week on average and never skate before 10:00 a.m. or after 6:00 p.m.; the ramp is 16 feet wide and six fee high, and 18 feet long; and no parking is needed, as the neighborhood kids who use the ramp, walk to it.  He stated he has a letter from a local realtor that states the lot as it sits would in no way decrease the value of the neighborhood; and it may increase the value to many families hoping to purchase a home in a family oriented community.  He noted any kid who skates the ramp would enter the lot through the A1A entrance; the lot cannot be accessed on Pelican Drive; and the entire property is gated.  He stated the ramp was constructed with the neighbors in mind; he installed special aluminum decking that reduces noise to a minimum, which costs five times as much as a regular piece of plywood; and it was constructed well, with noise and the neighbors in mind.  He stated the ramp was also built on a 10-inch platform to reduce the noise as well; an engineer came in and designed something that would reduce noise and make the ramp structurally sound for the children’s safety.  He stated he installed a six-foot privacy fence around the lot and planted six-foot silver buttonwoods along the front of the fence so it is virtually impossible to look in and see the ramp; and the lot is well landscaped and not an eyesore.

 

Paul Davis stated he has lived at 104 Pelican Drive for 11 years, and he is requesting the Board deny the Conditional Use Permit.  He submitted pictures to the Board, and stated the first picture is an aerial of the lot from the Property Appraiser’s website; the noise from the ramp when a true skateboarder is on it, is not inconsequential; the decking provides a smoother sound, but the big complaint about skateboards is when they hit the tail and makes a very transient noise; and there is no room he can go in, inside his house to get away from it.  He stated he takes issue with the fact that Mr. Marks said that only his kids use the ramp and a few of the neighborhood kids; there were three teenagers using it on Sunday; stated Mr. Marks’ own child was on the ramp after 8:00 p.m. a few days ago; and he does not know how skateboard ramps can be in a residential area.  He stated most of the homes in Melbourne Shores are on less than a half-acre lot; many of them are one-quarter acre or less lots; there are single-family homes in the area; there are three other retired people; and because he and the other are retired and spend a lot of time at home, there is no way to get any rest with the amount of noise that comes off the skateboard ramp.  He stated he disagrees with any real estate agent that says a skateboard ramp improves the value of his home.

 

Commissioner Fisher inquired if there is any condition in which Mr. Davis would support the request.  Mr. Davis replied no, not in its current state; the ramp is as big as a two-car garage; and there is no way to mitigate the noise with regards to the motocross; and he has tried to get the County to come out and take noise measurements; but it is hard to get the County to come that far to take measurements when the kids pack up and go at any time.  Commissioner Fisher inquired if the majority of the use is motocross or skateboarding.  Mr. Davis responded the Marks’ have cut back on the motocross significantly; but he takes issue with Mr. Marks because it was used four days in a row over July 4^th, and on Monday, the Sheriff was at their house; and to say it has only been used twice in 90 days is not true. 

 

Commissioner Anderson inquired how far Mr. Davis’s house is from Highway A1A; with Mr. Davis responding approximately 220 feet.  Commissioner Anderson inquired if Mr. Davis can hear the A1A traffic from his home; with Mr. Davis responding yes, he can hear the traffic from A1A, but not inside his home.  Commissioner Anderson inquired if Mr. Davis has noticed noise from the ramp during school hours.  Mr. Davis replied one of the kids who skates the ramp is homeschooled.

 

Bill Mitchell stated he lives caddy-corner to Mr. Davis; the amount of noise he gets at his house from the skate ramp is virtually non-existent; and he hears  traffic from  A1A more  than from the skate ramp.  He stated the skate ramp is a good place for children to go and not be in harm’s way; it is a very quiet neighborhood; and he is more worried about the kids and people speeding up and down the road, than the skate ramp.

 

Shannon Mitchell stated her kids go to the skate ramp; there are always kids playing in the neighborhood; but as far as the skateboard ramp, the kids do not ride it all the time; and there is more noise in the neighborhood from people mowing their lawns and running their boats in the driveways. 

 

Scott Rich stated he lives approximately one-quarter mile from the Marks residence; his concern is more with the traffic on the streets than with children playing on their own property, on a ramp specifically designed to decrease noise; the traffic on A1A is two to three times louder than the ramp will ever be; and in the heat, only so much time can be spent on the ramp anyway.  He stated the children are mostly in the pool, which is 50 feet from the ramp; the lot used to be covered in pepper trees; he personally took out all the pepper trees and kept the native plants species; the Marks planted a large amount of plants around the property; they have increased the value of their home and other homes in the neighborhood used to be predominately a retirement community until 10 years ago; and it is now turning into more of a family-type of neighborhood.

 

Connor Hurley stated there are rumors going around the neighborhood about a commercialized skate park; the ramp is mainly for the Marks’ children; and he is the homeschooled neighborhood kid that skates the ramp, as Mr. Davis mentioned earlier. 

 

Jane Echeverria stated she has had the pleasure of working with the Marks family as their nanny for almost two years; she has never seen such devoted and loving parents; the children are unique and amazing and she feels what they are doing is an amazing effort to provide their five children with an outside activity that is healthy, fun, and athletic; and Mr. Marks went out of his way to reconstruct the ramp to make it as quiet as possible.  She stated she does not think it is right to take the skate ramp away from the kids.

 

Darren Marks stated the subject lot looks like a park; it is not a vacant lot; there are silver buttons on the front of the lot; and he put in trees in front of the gate.  He stated the lot is all grass now with hills in it, so it has a park theme to it; and he wants to emphasize that it is not a vacant lot.  He advised the Sheriff’s Department was at the house because people were riding in the reserve and the Sheriff’s Department was asking him questions about that; no one in his family was riding in the preserve; and to say the Sheriff’s Department came to accuse his family of riding in the reserve is false.  He stated if one of his children was on the ramp after 8:00 p.m., he apologizes for that, as the kids know the rules of the house. 

 

Chairman Nelson inquired what type of business is located north of the subject property.  Commissioner Infantini replied it is Amy’s Beachside Salon; she operates a beauty shop downstairs; and her family lives in the upstairs apartment.   Chairman Nelson inquired about the house behind the subject property; with Mr. Marks responding he believes that house is vacant.  Chairman Nelson  stated  Mr. Marks  has a significant  piece of property;  and  inquired  why  he Did not place the ramp of a piece of property that was not adjacent to a neighbor.  Mr. Marks stated he felt the current location was the best place for it, which is the furthest away; the original spot for the ramp was a lot closer to the neighbor to the west; and it was 25 feet, now it is 60 feet.  Chairman Nelson inquired if the entire property is fenced in, or just the additional lot. Mr. Marks replied yes. 

 

Chairman Nelson stated there are some pictures that show the planting that was done outside the fence; and inquired if Mr. Marks did any landscaping on the side adjacent to Mr. Davis’s property.  Commissioner Infantini stated there are plants on that side. 

 

Commissioner Infantini stated she lived two miles south of where the Marks’ live; the only traffic that there was between the two communities was by bicycles; it is very remote area; the only children that would come over to play are local children; and there is no traffic bringing kids into the area.  She stated she is in support of the request because she knows it is a relief to live in that area with kids and be able to know where they are at all times and that they are safe and supervised. 

 

Mr. Marks stated he is not going to let 100 kids use the ramp, but in no way is it a noisy occurrence; and the motorcycles going down A1A are a lot noisier than the skate ramp.

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to approve Item V.B.2. as recommended.

 

Chairman Nelson stated Mr. Davis has rights too, and while what Mr. Marks is doing is commendable in terms of working with the kids in the neighborhood, the Board still considers the rights of everyone in the neighborhood; and he would feel more comfortable if there was a better buffer because wood fences do not necessarily kill sound; but a vegetative buffer helps do that.  He inquired if Mr. Marks would be willing to do some buffering along there so that it is a solid buffer on Mr. Davis’s side.  Mr. Marks replied he would be willing to do that; he offered to pay for it and let Mr. Davis choose the plants; and he will get it done. 

 

Chairman Nelson passed the gavel to Vice Chairman Bolin.

 

Commissioner Nelson stated he would like to amend the motion to include some buffering along the Davis property line and ask Mr. Marks to work with Mr. Davis; and he knows it will not solve Mr. Davis’s problem, but it will help it dramatically if there was additional landscaping for buffering.  Chairman Nelson stated the Board can stipulate that Mr. Marks continue the silver wood button trees as a buffer along the Davis property line. 

 

Motion by Commissioner Infantini, seconded by Commissioner Anderson, to approve Item V.B.2. as recommended by the Planning and Zoning Board, stipulating the applicant continue Silverwood Button trees as a buffer between the subject property and property owned by Mr. Paul Davis.  Motion carried and ordered unanimously.

 

 

Vice Chairman Bolin passed the gavel to Chairman Nelson. 

 

Item V.B.3. (Z0906302) – Summit Landings Properties, LLC’s request for a CUP for Alcoholic Beverages (beer & wine) for On-Premises Consumption in a BU-1 zoning classification on 0.84 acre, located west of U.S. 1, south of Garretts Road, which was recommended for approval as an accessory to a restaurant only by the Planning and Zoning Board.

 

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

 

 

Item V.B.4. (Z0906303) – Atlantic Coast Paladin Estates, LLC’s request for a change from AU to EU, with a Binding Development Plan, limiting density to one unit per acre, on 13.01 acres, located south of Micco Road, west of Dottie Drive, which was recommended for approval with a Binding Development Plan by the Planning and Zoning Board. 

 

Commissioner Infantini stated she would be in support of the request with a provision that the entryway be through the main entrance of Paladin Estates and is one combined entryway, because she does not want 13 driveways off of Micco Road.

 

Richard Kern, representing the applicant, stated that is the developer’s intent as well.

 

Motion by Commissioner Infantini, seconded by Commissioner Bolin, to approve Item V.B.4. as recommended by the Planning and Zoning Board, limiting access through the existing main entrance point of Paladin Estates only.  Motion carried and ordered unanimously.

 

 

Item V.B.6. (Z0907101) – Gary L. & Susan D. Sloan; and Isaac Sloan’s request for a change from GU to AU on 2.38 acres, located west of Pine Street, north of Cabbage Palm Street, which was recommended for approval by the Planning and Zoning Board. 

 

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

 

 

Item V.B.7. (Z0907102) – Kenneth R. and Robin J. Greenslade’s request for a CUP for a Pet Kennel in an AU zoning classification on 2.56 acres, located north of Burkholm Road, east of U.S.1, which was recommended for approval as non-commercial use only by the Planning and Zoning Board. 

 

Chairman Nelson stated he would like to clarify the non-commercial use; and inquired if the dogs are sold on site.   Robin Greenslade,  applicant, advised  she is a hobby breeder  and  she has show dogs; occasionally, when she has a litter of puppies they either get adopted or sold; and that it done on the property, but she is not a commercial breeder.  Chairman Nelson stated the stipulation from the Planning and Zoning Board is approval for non-commercial use only, but there is an indication that there may be an occasion when there is a sale on site; and inquired if that would then become a violation of the stipulation.  Ms. Greenslade noted she does not supply pet stores; and she is not a high volume breeder.  Chairman Nelson stated if she has a litter and advertises them for sale, then people start showing up at the property, then she is running a business out of her home; and she is not permitted to do that.  Ken Greenslade stated they have lived in that location for five years, and in that time his wife has had two litters in five years; stated she as won Westminster and travels all over the world with her dogs; and typically, there is a list of people who want dogs and the puppies are spoken for before they are even born, and then they are shipped off.  Chairman Nelson inquired how many puppies Ms. Greenslade sells in a year; with Ms. Greenslade responding she has not sold any puppies this year.  Chairman Nelson stated he would be comfortable if there was a limit of selling 10 dogs per year.

 

Motion by Commissioner Fisher, seconded by Commissioner Infantini, to approve Item V.B.7., as recommended by the Planning and Zoning Board, limiting pet sales to no more than 10 per year.  Motion carried and ordered unanimously.

 

 

Item V.B.8. (Z0907103) – Nahid Dehestani’s request for a change from GU to AU on 12.01 acres, located south of Aurantia Road, west of International Avenue, which was recommended for approval by the Planning and Zoning Board.

 

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

 

 

Item V.B.11. (Z0907201) – Joel S.  and Christine A. Burrill’s request for a CUP for a Recreational/Residential Marina in EU and RU-1-9 zoning classification on 10.99 acres, located west of N. Tropical Trail, north of Timuquana Drive, which was recommended for approval with stipulations by the Planning and Zoning Board. 

 

Motion by Commissioner Infantini, seconded by Commissioner Fisher, to approve Item V.B.11. as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

Item V.B.12. (Z0907301) – Antonio G. and Karen M. Santos’s request for a CUP for a Private Boat Dock Accessory to Adjacent Single-Family Residential Lot in an RU-1-13 zoning classification on 0.05 acre, located south of Ross Avenue, west of Lakeview Drive, which was recommended for approval by the Planning and Zoning Board. 

 

Motion by Commissioner Infantini, seconded by Commissioner Anderson, to approve Item V.B.12. as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

Item V.B.13. (Z0907302) – William R. & Mylene C. Dally’s request for a CUP for a Private Boat Dock Accessory Adjacent to Single-family residential Lot in an RU-1-13 zoning classification on 0.02 acre, located south of Ross Avenue, west of Seiler Street, which was recommended for approval by the Planning and Zoning Board.

 

Motion by Commissioner Infantini, seconded by Commissioner Fisher, to approve Item V.B.13., as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.  

 

 

 

Motion by Commissioner Bolin, seconded by Commissioner Fisher, to adopt Resolution approving the Findings of Fact upholding denial of Merritt Island Development, LLC’s request to grant a Conditional Use Permit (CUP) for a marina.  Motion carried and ordered unanimously. 

 

 

 

Michael DiChristopher stated page 1 of the Board’s handout shows a plat of Morningside Beach subdivision; the outlined portion is the ownership that he has interest in; in 1927 the developer re-platted the remaining property that he owned; he bought the property in the mid-90’s after talking with the Planning and Zoning and Land Development Departments; he asked the departments a series of questions about if he could develop the property if he was able to obtain it; and he was given the necessary answers that he needed.  He advised over the last 14 years he accumulated much of the property; three years ago he asked an engineering firm to design a roadway in the Morningside Beach subdivision without asking the Board for any waivers; and in order to do that he had to give up some of his property to increase the width of the right-of-way.  He stated he did everything according to Code, but unfortunately, the right-of-way was impacting a small portion of wetlands, which is approximately 2,000 square feet; the Natural Resources Management Office could not make a determination on whether or not he could impact the wetland with the right-of-way, so it became a matter of a Public Interest Determination; in March 2008 the Board denied the Public Interest Determination; and that left him with one more means to try to get access to the property, which is by access easement.  He stated page 6 of the Board’s handout shows a drawing of all the lots that he owns; four legal easements were designed to access each one of the lots; but when he made application for the easements one year ago, he was told different things; and basically, staff did not want him to have access easements over wetlands to the lots.  He stated he tried to tell staff that he defined the legal accesses, but was only going to use  one  common  access for  the  driveway,  thereby minimizing wetlands; he has a letter from Natural Resources indicating that the easement application was denied; and the denial was because the easement would traverse many properties and does not constitute one primary access to on-site structures.  He stated he had asked the Natural Resources to clarify what was meant by reason of denial; Natural Resources sent him a letter of clarification, which says, “Historically, Natural Resources has permitted impacts on properties where cross-access agreements exist and the easement is necessary to access on-site structures; therefore, if you obtain cross-access agreements from each property, which dedicates the easement as the primary means to access properties with onsite structures, then Natural Resources could permit the wetland impacts minimally necessary to provide that one primary access.”  He noted that letter was sent in October 2008, and he has relied on that letter; he drew up all the easements and cross access agreements; but it did not work; there was legal advice from County staff advising Natural Resources that it could not be done.  He stated he is before the Board today to talk about reasonable access to his property, as he has no other means to get there; and he would like to turn the issue over to Lisa Toland, Environmental Consultant, and Bobby Cameron, who used to work in the Land Development Department.

 

Lisa Toland, Toland Environmental Consulting, stated the last page in the Board’s package shows the extent of the wetlands on the property; what the applicant is looking for from the Board is two interpretations of the Code; one relating to the shoreline protection buffer; and the second one relating to the wetlands Ordinance.  She stated with regard to the shoreline protection buffer she would like to discuss applying that Ordinance to an upland cut drainage canal; the uplands adjacent to the shoreline are uplands, they are upland soils, and they are scrubby pine flatwoods; it is a community that would normally support gopher tortoises, not something that support aquatic dependent species; and it is not environmentally critical from a shoreline protection standpoint.  She stated the wetland impacts are 0.06 acre of wetland; as she looked at the possible configurations, she believes the applicant is meeting the County Codes and the intent of the Codes; wetland impacts are being minimized; any other wetland impact would impact the wetlands much further to the east; but on the subject property there is very minimal impacts to wetlands; and the uplands were never historically associated with the surface water body, and it is listed as a drainage canal on the Property Appraiser’s tax rolls.  She stated the way the Code is written today, the project is in compliance with County Code; unfortunately, staff believes County Code is not consistent with the Comprehensive Plan, so staff has said they will revert back to the original Comprehensive Plan language when applying it to the situation; and the Comprehensive Plan states, “Prohibit shoreline alteration other than that allowed for reasonable access for approved accessory uses unless it is shown to be in the public interest, or prevents or repairs erosion and other issues.”  She stated when she looked in the Ordinance and Comprehensive Plan for what is reasonable access, it is not defined in any of the Codes; staff has not been able to find a definition for reasonable access either; the only definition she was able to find was in the Comp Plan and defines access as physical attributes of a site facility which enables a person and his intended means of transport to a site or facility; and from her perspective, reasonable access is something that is a practical means of getting to one’s property.  She stated she believes reasonable access applies in this situation and that the impact of the shoreline protection buffer is permissible under the Comprehensive Plan; and she hopes the Board sees that interpretation of the rule also.  She stated with regard to the wetland protection  issues,  the   Wetland  Ordinance  and  the  Comp Play  say  wetland   impacts  from residential impacts are limited to a 100-year flood elevation, the primary onsite structure, the onsite sewage disposal system, and also one primary access to onsite structures.  She stated in looking at all the diagrams and configurations that have been done, it is her position that the suggested access is the one primary access to the structure; the issue with staff became that they have never looked at an offsite impact to a lot; the lot on the northern-most portion is the lot being requested for development; the wetland impact is away from the lot; staff feels that because it is not an on-lot impact for on-lot primary access, they will deny the applicant; but she does not find anywhere in the Code that says it has to be an on-lot impact; and she does not find the in the Code that primary access has to be limited to just one person’s lot.  She stated there are no mangroves impacts associated with the driveway access; the property owner has donated portions of his own property along the access route to push the impacts as far east as possible; and there will be no impact to any mangroves on the property from an environmental perspective. 

 

Bobby Cameron stated he worked for the County for 15 years in Land Development; if the Board has any questions about the application regarding the width and length of easement, he would be happy to answer them; years ago Land Development processed an easement for Commissioner Infantini; and he thought that maybe she would have an appreciation of easements.  He stated basically, the application began as a road application, but the applicant had to scale back and request an easement application to access his properties; the two interpretations before the Board regarding the number of accesses on one access strip, and also the issue of jumping a paper road that was platted in 1925; the two issues were a matter of course until recently; if this was happening three or four years ago, he does not think the applicant would be asking for the waivers, because it was staffs interpretation at that time that if it was a cross-access agreement, and as long as the easement description did not pick up on the opposite side of the right-of-way, but rather died at the edge of right-of-way, the applicant could get a driveway access across the platted paper right-of-way.  He stated until a few years ago both items were a matter of course and were always approved; the new employees of the new staff in recent years have decided that that was not correct; and the new staff viewed it as a gray area, whereas it was not previously.  He stated the files in Land Development are full of similar applications that were processed by previous Boards that approved them; the current interpretations are new; and that is why they are before the Board tonight.

 

Commissioner Infantini stated when she was running for office she saw a lot of areas that were flooded, especially after Tropical Storm Fay; she worries about letting someone build in an area as wet as the subject property; the easement would go through a cul-de-sac; it is her understanding that the current homeowners in the cul-de-sac bought there for that reason; and there was an expectation that the subject property was unbuildable.  Mr. Cameron stated that would not be a reasonable expectation because it has been a platted subdivision since 1925; it is a recorded plat; and for anybody to expect that a recorded plat would not be developed, would not be a reasonable expectation.  He noted cul-de-sacs are a temporary design; cul-de-sacs are put in, in an effort to have a turn-around, but that is always a temporary installation; and cul-de-sacs are designed so the road can be picked up and continued if needed.  He stated Pine Road actually accesses the end of the cul-de-sac; the only reason there is a cul-de-sac is because the platted lots were not developed; and that is an unreasonable expectation.

 

Chairman Nelson stated he would disagree with Mr. Cameron about cul-de-sacs being a temporary design because if that was the case, there are a lot of temporary designs in the County.  Mr. Cameron stated there are a lot of temporary cul-de-sacs in the County, and they are in place because they are temporary.  Chairman Nelson stated they are not temporary because there are houses all around them. 

 

Commissioner Anderson stated it is basically a driveway the applicant is asking for; if someone built a house at the end of the cul-de-sac, it would be no different; and it would not increase traffic in the neighborhood.  He stated most of the subject property is uplands, based on what was said earlier by who he believes are experts in the field; and inquired what are the property rights of the landowner as far as it becoming a taking because the Board is denying access over 2,000 square foot supposed wetlands.  He stated the second issue is that the County does not have a mitigation standard that would allow the applicant to mitigate the 2,000 feet of right-of-way; and he would like to hear from staff and not the experts.  Morris Richardson, Assistant County Attorney, stated he cannot answer that without more facts; he would say that no, the Board’s action today would not be, if there is a taking, it would not stem from what the Board does today, it would stem from the language in the Comp Plan; and he would have to defer to staff about the Comp Plan. 

 

Commissioner Anderson inquired what is reasonable access.  Mr. Richardson replied this is a subject that has been the topic of a number of discussions to which he has not been a party to; but maybe staff can better answer the question.  Chairman Nelson stated he thinks there is a different question; he is not sure it is an environmental question as much as it is denying legal access; Mr. DiChristopher has legal access; and he can build two lots on the property today and never have come in front of the Board.

 

Commissioner Anderson inquired why Mr. DiChristopher cannot build on the lot.  Chairman Nelson stated if Mr. DiChristopher wants to build a subdivision the way it was platted and amend it according to the current zoning, he can do that; but the reality is that there are issues associated with the property in its entirety that are an issue for him to be able to do that; and the Board is not denying him anything.  He stated the Board is not talking about whether the road can be built and the issue of the environment; it is an easement; and it says he is limited to what he can do and the number of lots that can be accessed on easements. 

 

Commissioner Anderson stated it goes back to public determination; and he does not see a negative impact on the public by allowing Mr. DiChristopher access over the wetlands to get to his lot.

 

Ernie Brown, Natural Resources Management Office Director, stated before the Board are three linked questions; one is the question about the actual request to waive the section to allow access by easement to four lots, and for those access easement to cross a portion of the public right-of-way; and that is the crux of the discussion Mr. Calkins is going to speak about.  He advised the other two elements is if this constitutes reasonable access by County Code, for which there is no definition; and inquired specific to this, does it constitute reasonable access under the Surface Water Protection Code.  He stated the second question is whether or not this access-way, which impacts wetlands on one lot to access a  second lot,  constitutes the primary access to that second lot’s onsite structures; staff would like to have a yes or no from the Board as to whether it subscribes to that positioning, which is asserted by the applicant; but the primary issue before the Board today is the access by easement; and it is hard to separate the Code clarity issues and the access by easement. 

 

Commissioner Bolin inquired if Mr. Brown is saying if the Board allows the easement to go through, the applicant still has to deal with the wetland situation, and that will be the third issue he will have to work through beginning tomorrow.  Mr. Brown replied yes, the Surface Water Protection Code requires allowance for regional access within the 25-foot buffer; it would have to be clarified by the Board as a matter of policy clarification; the second item would be whether or not the Board determines it to be considered the primary access to onsite structures; and those two issues are secondary, but necessary for this discussion, should the access easements be granted.

 

Commissioner Infantini stated if not for her easement, for which she was granted a variance from 25 feet down to 20 feet, she would have not been able to set out her lots the way it was done; and she feels she would be a hypocrite if she did not support the request. 

 

Theresa Parsons stated her concern with allowing the driveway is that it is a cul-de-sac; the road all the way up to North Banana River Drive is not a good road because of multiple potholes; garbage trucks have difficulty turning around in the cul-de-sac; there are manatees in the canal along the road; and her concern is that there would be some impact there that would harm the habitat for the manatees.

 

Richard Biondi stated he finds it hard to believe there would be a 20-foot wide driveway to serve six houses; unless there is a cul-de-sac at the end of the access, he does not know how anyone with anything larger than a pick-up truck would be able to turn around; and stated many services vehicles cannot turn around in the cul-de-sac.  He noted there would also be runoff from the driveway into the canal, which has manatees in it; and he would respectfully request the Board deny the request.

 

Commissioner Infantini stated she lives on an easement; all of her garbage has to be taken to A1A because garbage trucks are not allow down the easement; there is a turn around area at the end of her driveway for emergency vehicles; and all of the mailboxes are on A1A so the mail carriers do not have to drive down the easement.  Ms. Parsons noted on Sun Pointe Place, it is in the deed restrictions that residents are not allowed to put garbage out at the road until the day of garbage collection; and she is concerned that people would put garbage out and leave it there. 

 

Chairman Nelson stated it is a platted subdivision that could basically be built; and the applicant is asking for something that is an exception to that.  Mr. Calkins stated that is correct; it is a platted subdivision, and there are two tracts; and there are five non-conforming lots of record.  Chairman Nelson stated Mr. DiChristopher has a right to build based on the fact that there is a subdivision that has been platted; the problem is that he cannot configure the lots in that fashion because the land does not fall the way he would like it to fall; he knows the Board wants to follow  the  law;  and  as it  relates  to  waivers,  it clearly states in the  County’s  own  rules  that granting waivers will not be injurious to other adjacent properties; and there are properties Mr. DiChristopher does not own. 

 

Mr. DiChristopher stated the access easement goes through all of his property; and inquired how that can be injurious to any adjacent properties.  Chairman Nelson replied because now those other property owners cannot get to their properties; and stated there are properties that surround Mr. DiChristopher’s property.  Mr. DiChristopher advised they are all his properties.  Chairman Nelson stated right now they have access through the plat.  Mr. DiChristopher stated he is not denying anyone access.  Chairman Nelson stated to grant Mr. DiChristopher the ability to do what he is asking to do, which is to issue easements on flag stems, exceeds the Board’s capacity to issue others; and those property owners around him now cannot get access to their property.  Mr. DiChristopher stated he designed cross access easements.  Chairman Nelson stated he may have cross access agreements, but it is not consistent with regulations and codes; and what Mr. DiChristopher has not done is designed access to the other properties that he does not own because it is inconsistent with County code.  Mr. DiChristopher stated he is not denying anyone access.  Chairman Nelson stated in effect, Mr. DiChristopher is starting to develop a subdivision on easements.  Commissioner Anderson stated Mr. DiChristopher has a right to get to his property; and when the other owners come before the Board, it will approve their access from his driveway. 

 

Motion by Commissioner Anderson, seconded by Commissioner Infantini, to waive Section 62-102(B)(2)(b) to allow access by easement to access four (4) lots and for the access easement to cross a portion of a public right-of-way. 

 

 

Commissioner Bolin inquired how the people who own the land to the north, get to that piece of property.  Mr. Calkins replied, if the Board grants the waiver, the property to the north would also have an easement extended to them to get there.  Chairman Nelson stated there would have to be a waiver to the waiver.  Commissioner Fisher inquired if a condition to the approval could be that access is allowed to the people to the north.  Chairman Nelson stated what the Board will be setting up is that there will be no subdivision rules in the County.

 

Commissioner Fisher inquired how many more buildable lots would there be with the wetlands.  Mr. Calkins replied that is a difficult question because several things would come into play. 

 

Chairman Nelson stated his concern is that the Board would create a terrible precedent to allow entire subdivisions off of easements; that is why there are rules in place; he has an example in District 2 that has 10 lots off of a single easement; and public services cannot be provided to it because it is a subdivision that there are no rules for.

 

 

Mr. Cameron stated when that plat was recorded, it was recorded with right-of-ways; those right-of-ways were supposed to be developed by the person who recorded the plat; this subdivision could not be put in with current day standards because the improvements have to be made first; everyone who owns lots in the subdivision owns 25-foot lots; and they will never be able to develop them.  He stated if someone owns a 25-foot lot that is further east and under water, they will have access to that lot because it was platted by a 20-foot right-of-way and a 40-foot right-of-way that Mr. DiChristopher is trying to gain access over; Mr. DiChristopher designed a road to County dirt road and DOT standards with a cul-de-sac at the end; and the cul-de-sac would allow anybody, including a garbage truck, to go to the end and have enough room to turn around.

 

Chairman Nelson stated there are going to be some interesting setbacks from some of those wetland lines.  Ms. Toland stated there is no intention of not complying with the wetland Codes if someone comes in to develop the lots; any wetland impacts will have to be minimized and force the developments into the uplands as far as possible; the applicant is not asking for a waiver to that; but he is just asking for an opportunity to do that.

 

Chairman Nelson stated it is more of a County easement issue; what the Board is doing is blocking off access to other people’s properties whether they ever want to build there or not; Mr. DiChristopher is blocking access to the other property owners; and he is further concerned that the item was an add-on, so the neighbors who were out in force the last time this came before the Board, did not get notice of it.  Commissioner Anderson stated he does not think the neighbors have any say-so in the matter, as it is a property rights issue.

 

Mr. Calkins advised the current Code was adopted in 2003; what Mr. Cameron and Mr. DiChristopher are saying was more of a practice, understanding, or interpretation from staff that what they were doing was allowed; but it created problems.  He stated there are some areas where there is a lot of accesses through a single easement that should be constructed as a roadway; and through those easements it is difficult to provide the public utilities, and there are also drainage issues.  He stated the Ordinance is very specific in what is allowed and what is not allowed; the Ordinance allows two accesses over one access strip; the access strip must be clear, graded, and it must be maintained to ensure emergency vehicles can pass; and the access strip is exclusive for the parcel in which the building permit is to be issued.  He stated the easements would be through wetlands; however, the driveway would be constructed where they are asking for it to be; if they are asking the Board for the waiver, they are putting access in wetlands that, if for some reason there was an issue with that driveway and someone cannot use it, the legal access that staff issued the building permit off of would be through wetlands; and there could be a house out there, where now, one has to go in and do wetland mitigation, which would be an increased cost.  He stated the governing plat of the property shows the 25-foot lots were platting in 1925; then the property was subsequently replatted in 1927 to the new configuration; and at that time, they came in and removed the 25-foot lots, but some sales still occurred on the metes and bounds descriptions of the underlying lots.

 

Commissioner Fisher inquired what happened to Central Street.  Mr. Cameron advised it is a paper right-of-way that has never been approved; and anybody can improve that right-of-way or ask the County to improve it to access their lots, just like Mr. DiChristopher brought to a previous Board and it was turned down.

 

Chairman Nelson stated it was turned down because the road was sitting on a seawall.  Mr. Cameron stated there was a seawall, but the road was not on it. 

 

Commissioner Fisher inquired how lot 3 would be accessed.  Mr. Cameron replied lot 3 would be accessed by crossing Central Street; it has not yet been determined how the lots will be developed regarding the driveway, but the one, 25-foot easement running parallel to the right-of-way would be traveled by the four lots; and the fifth lot is off of an existing right-of-way.  He stated the 25-foot easement requirement that was put in place in the beginning was to take into consideration the  driveway,  drainage,  and  utilities.   Chairman Nelson  stated  FDOT standard is a 24-foot width of asphalt; and Mr. DiChristopher is asking for twice of what the regulation allows.  Mr. Cameron noted the reason Mr. DiChristopher is asking for four on one access strip is because he can provide individual accesses to all four of the lots without a single easement with a waiver for four; but the County wants to minimize the impacts, so he is telling the County he can minimize the impacts to the wetlands by not providing the additional easements through the wetlands; and he does not want to destroy them, which is why he is requesting to use one common driveway.  He stated if the Board wants him to, he can access all four lots with an easement through the back of the lots and destroy the wetlands; the County wants minimum impact to the wetlands; and he is trying to accommodate that by using one driveway; and historically, the County has always allowed that, but it is the new interpretation that is stopping it now.

 

Commissioner Anderson stated he is looking at the outline of the wetlands; it appears that at the end of Mr. DiChristopher’s property, everything to the north is probably wetlands; and the aerial does not show any pine trees growing there.  Mr. Brown stated he did not think the wetland delineation went all the way to the canal; but it does get much wetter on the north end.  Ms. Toland stated Commissioner Anderson is correct that it does intersect the canal at the north end of the property and continues north; but it was not delineated how far north. 

 

Commissioner Fisher inquired if there is a way to make sure the Board is not blocking off someone on the north end.  Mr. Cameron stated because the right-of-way is already platted for the public, tomorrow someone could drive a vehicle to the end of Sun Pointe Place and walk the public right-of-way of 20 feet along the canal down to Central Street, and walk east as far as possible.  Chairman Nelson stated that is the buffer; and the reason Mr. DiChristopher is not using it is because it is the wetland buffer.  Mr. Cameron stated no, that is not correct; it was not in the public’s interest; and the determination was made that it was not in the public’s interest.  Chairman Nelson stated the same conditions exist for whoever is to the north that it does for Mr. DiChristopher.  Mr. Cameron stated every piece of property in Brevard County is not developable; it is an unrealistic expectation that someone who owns a 20-foot lot that is under water is going to get any access other than to drive a vehicle to it; and he started this process with Mr. DiChristopher 12 years ago.  He stated Mr. DiChristopher had two options when he was in charge of Land Development; one, he could have either built a road, or he could have bought as much property as he could and get an easement because that is what is allowed in either the subdivision regulations or the easement regulations.  Chairman Nelson stated Mr. Cameron wants a waiver to the easement; and he is asking for something beyond what a staff person could have given him.  He reiterated Mr. Cameron is asking for a waiver of the regulation, and not what he personally believes.  Mr. Cameron stated the regulation has a component in it that is every bit as valid as the rest of the regulation; and that component is a waiver that gives the Board the criteria for the waiver.  Chairman Nelson stated one of the criteria is that someone cannot injure someone else’s access.   Mr. Cameron noted the easements are always on private property; Mr. DiChristopher would have to give someone else an easement, in which case it would have to come before the Planning and Development Office to be processed; and so he is not getting anything more than anyone else would get. 

 

The Board recessed at 8:50 p.m. and reconvened at 8:57 p.m.

 

Commissioner Fisher stated as a condition to the waiver, the Board could tell Mr. DiChristopher that he has to allow access on the 25 feet.  Mr. DiChristopher stated he would do that because no on in their right mind would want to develop what is left out there, as it is nearly impossible; and he has no problem allowing anyone else to use the driveway to access their lots if they were denied, like he was, to put in public roads.

 

Chairman Nelson inquired what was the amendment to the earlier motion.  Commissioner Fisher advised the amendment was that on the 25-foot easement Mr. DiChristopher is creating, that he is going to allow any other property owners throughout the subdivision to have access on that easement.  Commissioner Anderson stated he agrees to that amendment if Commissioner Infantini agrees.  Commissioner Infantini stated she agrees to the amendment.

 

Commissioner Fisher stated he would feel a lot more comfortable if the 25-foot easement was put next to Pine Road and that Mr. DiChristopher agrees to grant anybody that needs or wants access, that he will allow them to have it; and that way, no one can come back to the Board and say it denied them access to their property.  Mr. DiChristopher stated he can agree to that stipulation.

 

Morris Richardson, Assistant County Attorney, stated he would like to clarify there is a specific requested action on the Agenda Report, which is a waiver of the easement provisions requiring access can only be limited to two lots; and the applicant is asking for a waiver to get four lots by the easement.  He stated there have also been questions raised about interpretation of various Comp Plan provisions that are not properly before the Board tonight; those questions are not part of the requested action; and he wants to make sure there is no confusion that the Board is interpreting the Comp Plan. 

 

Motion by Commissioner Fisher, seconded by Commissioner Infantini, to waive Section 62-102(B)(2)(b) to allow access by easement to access four (4) lots and for the access easement to cross a portion of a public right-of-way; and direct access be provided along that waiver to adjacent property owners.  Motion carried and ordered; Chairman Nelson voted nay.

 

 

Upon motion and vote, the meeting adjourned at 9:03 p.m.

 

 

 

 

 

 

 

ATTEST:                                                                     _________________________________

                                                                                    CHUCK NELSON, CHAIRMAN                                                                                                           BOARD OF COUNTY COMMISSIONERS

                                                                                    BREVARD COUNTY, FLORIDA

____________________

SCOTT ELLIS, CLERK

         

          (S E A L)