MINUTES OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS

BREVARD COUNTY, FLORIDA

 

 

November 1, 2007

 

 

 

The Board of County Commissioners of Brevard County, Florida, met in regular session on November 1, 2007 at 5:01 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida.  Present were:  Chairperson Jackie Colon, Commissioners Truman Scarborough, Chuck Nelson, Helen Voltz, and Mary Bolin, County Manager Peggy Busacca, and Assistant County Attorney Morris Richardson.

 

The Invocation was given by Pastor Gary Montevalco, Destiny Christian Church, Merritt Island, Florida. 

 

Commissioner Helen Voltz led the assembly in the Pledge of Allegiance. 

 

 

 

Chairperson Colon noted the Board had a difficult summer with regards to the Budget; there were a lot of people who had to be let go because of budgetary constraints; but she wants them to know they are in the Board’s prayers and are thought about often.

 

 

Commissioner Bolin read aloud a Resolution commending Clifford Barry.

 

Motion by Commissioner Bolin, seconded by Commissioner Voltz, to adopt Resolution commending Clifford Barry for his quick thinking, his courage, and his heroism in trying to save the lives of two accident victims.  Motion carried and ordered unanimously. 

 

 

 

Chairperson Colon stated there is a gentleman that always welcomes the Board with a big smile; and he is the Board’s body guard, he makes the Board laugh, and he keeps Board on track.  She stated the Board wishes to recognize Harold “Spud” Grounds, for his hard work and dedication to the Board, staff, and the public; and the Board appreciates all Mr. Grounds does.

 

 

 

County Manager Peggy Busacca advised the November 15, 2007 workshop for the South Brevard Courthouse conflicts with a Florida Association of Counties meeting; at least one Commissioner has expressed interest in attending the meeting; and she would like to reschedule the South Brevard Courthouse workshop to January 17, 2008, at 9:00 a.m., which is a date that has been approved by all of the Commission Offices. 

 

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve rescheduling of the South Brevard Courthouse Workshop from November 15, 2007 to the January 17, 2008 County Commission workshop meeting, due to a conflict with a Florida Association of Counties meeting.  Motion carried and ordered unanimously.

 

 

Chairperson Colon read aloud a Resolution proclaiming the month of November as Hospice Month.

 

Motion by Commissioner Voltz, seconded by Commissioner Bolin, to adopt Resolution proclaiming November as Hospice Month, in honor of hospice caregivers, volunteers and staff.  Motion carried and ordered unanimously. 

 

 

Valree Peralta stated it is an honor for Wuesthoff Brevard Hospice to accept the Resolution on behalf of the Hospice Organizations in Brevard County; and this year marks the 25^th Anniversary of the formation of Hospice.  She advised Hospice, in its first form, was an all-volunteer effort; and she thought it most appropriate to introduce three wonderful volunteers who donate their time and service to patients and families.  She introduced Edna Anderson, Carol Sue Cole, and Lisa Woodard, and stated between them and the other 240 volunteers, they have put in thousands of hours of service to patients and families. 

 

Chairperson Colon noted she has seen first hand what Hospice does; and she has seen such compassion from the volunteers of Hospice. 

 

 

 

Commissioner Nelson advised the Florida Department of Transportation (FDOT) held a meeting on a road project in the West Cocoa area that is going to impact the Whispering Pines, Lakeview, and Catalina Village areas.  He advised FDOT is going to put in traffic lights; but as part of the project, it is also going to be closing off some of the median cuts; and that will make traffic flow difficult for the communities.  He stated he would like permission from the Board to send a letter to FDOT requesting it extends the timeline for response back to that design by 30 days; it currently closes out November 6, 2007; and he would like to have time for the community, County Engineers, and FDOT Engineers to try to resolve some of the issues. 

 

Motion by Commissioner Nelson, seconded by Commissioner Scarborough, authorizing Commissioner Nelson to submit a letter to Florida Department of Transportation requesting a 30-day extension on the timeline for response to the design of the West Cocoa Area Road Project, in order to have time for the community and County Engineers to meet with FDOT Engineers to try to resolve some of the issues with the project.  Motion carried and ordered unanimously.

 

 

 

Commissioner Voltz stated tomorrow she is meeting with a group of citizens from the South Beaches and will be putting together a community meeting; she is not sure when the community meeting will be held; but notice will be sent out to the residents.

 

 

 

Commissioner Voltz noted there was a good meeting today with Silver State Helicopters, Melbourne Airport, Town of Grant Valkaria, Valkaria Airport Manager Steve Borowski, and others; everyone came up with some resolutions to the problem at Valkaria Airport; and two weeks will be given to see how it functions.  She noted the Board is going to get something in writing from Silver State as to what they are going to do; and she wanted to let everybody know that the issue is being addressed in case any other Commissioner should get phone calls from residents.  She stated at one of the meetings a gentleman stated she was unresponsive to his phone calls and a couple Commissioners outside his District responded to him instead; she would like to inform the Board that the gentleman had left three messages on her recorder, but he never left his name or phone number; and therefore, she was unable to respond to him. 

 

 

 

Commissioner Voltz advised last Saturday a conference on crime was held in South Melbourne; there was not as good a turnout as was anticipated; unfortunately, there were three large funerals in the community that day; and there was another program going on in North Melbourne.  She noted the people who were there were key to resolving some issues; there are meetings set up out of that conference; the Melbourne Chief of Police is going to meet with the Pastors in the community; and the community is getting together with P.A.L. to look at resolving the issues with the kids and young people.  She noted the Community Kitchen prepared the food for the event; and she would like to thank Chairperson Colon for being there all day, along with Kathy Meehan and John Thomas from the City of Melbourne. 

 

Chairperson Colon stated Commissioner Voltz and Representative Mitch Needelman should be commended on their efforts in the community to fight crime.  Commissioner Voltz and Chairperson Colon commented on language being used by young people today.   Chairperson Colon stated parents were warned to carefully watch what their kids are doing on the Internet; a lot of sexual predators who seek young people are also on the Internet.  Commissioner Voltz stated there is software that parents can purchase that allows them  to look at every single thing their child does on the Internet; it is called Tell-It PC; and it is software that can be installed that will allow parents to receive reports on what a child is doing on the Internet, including keystrokes.  She stated it is important for parents to watch and monitor what their kids watch and listen to; and also mentioned the music kids listen to and the effects it has on them.

 

 

 

Commissioner Bolin stated she would like to announce a joint meeting for the mid-reach beach erosion on Monday, November 5, 2007 at 6:00 p.m. in the City of Satellite Beach; and it will be a joint meeting with District 4, District 5, and the Cities of Satellite Beach and Indian Harbour Beach.  She advised the meeting will be held at the Scotty Culp Civic Center, next to City Hall on Cassia Avenue in Satellite Beach.

 

Chairperson Colon stated folks are disappointed because of the millions of dollars the Board took away from the renourishment of the beaches, as the beaches have been hit hard by high winds and surf.  She commented on S.R. A1A being vulnerable for everybody and not just those who live on the beaches.

 

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to approve Brevard County Road and Bridge Department to perform civil site work services necessary for the construction of Max K. Rodes Park.  Motion carried and ordered unanimously. 

 

 

Commissioner Nelson stated Road and Bridge does an excellent job; it has done some park jobs such as Howard Futch Park, and Mitchell Ellington Park; but he would like to remind the Board that Road and Bridge Department is also subject to emergencies, hurricanes and other things that happen.  He stated he knows Road and Bridge will do a wonderful job on the project; but it is a long project with a lot of time for other things to come forward; and as those things come forward the Board should remember it may be pulled off the project to do other things the Board has identified as being more valuable.

 

 

 

 

Motion by Commissioner Voltz, seconded by Commissioner Bolin, to continue the public hearing to  consider  Resolution adopting  the  2007  Supplement  to the 2006 Evaluation and Appraisal Report (EAR) for submittal to the Florida Department of Community Affairs (DCA), to the November 13, 2007 Board meeting.  Motion carried and ordered unanimously.

 

 

Item VI.B.2. (PSJ71001) – Mission Investment Fund of the Evangelical Lutheran Church’s request for a Small Scale Plan Amendment (07S.18) to change the Future Land Use designation from Residential 4 to Neighborhood Commercial (NC), and a change from IN(L) to BU-1-A on 2.59 acres, located on the southeast corner of Fay Boulevard and Adams Place, which was recommended for approval by the Port St. John Dependent Special District Board for the Small Scale Plan Amendment; approved with a Binding Development Plan by the Port St. John Dependent Special District Board; and approved by the Local Planning Agency.

 

Motion by Commissioner Voltz, seconded by Commissioner Bolin, to table Item VI.B.2. to the December 6, 2007 meeting. Motion carried and ordered unanimously.

 

 

Item VI.B.1. (Z0710101) – William D. Kabboord and Cornelia Kabboord, Trustees’ request for a change from GU to TR-1 on 41.88 acres, located east of southern terminus of Carol Drive, south of Canaveral Groves Boulevard, and extending east to the west side of the southern terminus of Brown Court, which was recommended for approval with a Binding Development Plan by the Planning and Zoning Board.

 

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

 

 

Motion by Commissioner Nelson, seconded by Commissioner Voltz, to waive the Environmental Phase I Assessment and Report requirement for the closing regarding the Contract Purchase between Brevard County and Barnes Plaza, LLC for the Barnes Boulevard West Widening Project.  Motion carried and ordered unanimously.  

 

Item VI.A.1. (NMI70801) – Linda K. Reel and Steven G. Anderson’s request for a change from  AU  to  RR-1 on  13.52  acres,  located  east  of  North Tropical Trail, north of Grant Road, which was recommended for denial by the North Merritt Island Dependent Special District Board.

 

Steven Anderson stated he has entered a preliminary Binding Development Plan (BDP); and handed out a copy of the BDP to the Board and to the Clerk. 

 

Commissioner Scarborough inquired if Mr. Anderson has given the community copies of the BDP; with Mr. Anderson responding he has given it out at the North Merritt Island Dependent Special District Board meeting and also at the preceding meetings.   Mr. Anderson noted the BDP has been modified; and he and Ms. Reel have decreased the request for zoning since the last meeting.

 

Chairperson Colon stated there was a unanimous vote of denial by North Merritt Island Dependent Special District Board; and inquired if Mr. Anderson is able to address some of the concerns that were addressed at the North Merritt Island meeting; with Mr. Anderson replying he believes so.  Mr. Anderson stated when asking for a zoning change there are pre-requisites that one needs to address; one is compatibility with the neighborhood; the other is if it is in compliance with the Comprehensive Plan; and his request meets both of those issues.  He stated the request is more compatible than the neighborhood that is there; the subject property is 13.52 acres; Sunset Lakes is to the north, and is a Planned Unit Development (PUD); and he is requesting RR-1 zoning, which is residential, one-acre zoning.  He noted Sunset Lakes has a PUD, which is four or five units per acre; to the east is Sunset Groves and it has half-acre zoning; and he is requesting a total of nine units.  He advised there is one unit that will be torn down because it was built in the 1980’s and is not compatible; and therefore, eight additional units are being requested for a total of nine units on 13.52 acres.  He stated the agricultural zoning that is on the property is not compatible with the neighborhood; in the 50’s and 60’s it was an orange grove community north of the barge canal; and when Sunset Lakes and Sunset Groves were built with other developments it was not in character with the neighborhood.  He stated there have been a lot of issues addressed with the North Merritt Island Homeowners Association; one issue is that there is no problem with the road; getting to the property is the major concern; North Tropical Trail is at 10 percent of its capacity; and if eight units are added, it is less than a one percent increase to the road.  He advised another issue is there is no problem with having the City of Cocoa for water; and the schools can handle eight additional units as well.   He stated the question is if the proposal is compatible with the neighborhood; to the north is a Planned Unit Development; there is EU and SR zoning, which are lesser zonings than he is requesting; there is even RU-1-13 in the area; the subject property is a lost piece of property in the middle; and a lot of people bought around it thinking it would be a park, but it is not.  He stated the property has some areas of concern, such as wetlands, but he can assure the Board he will propose that none of the wetlands would be impacted; and he will not be like Sunset Lakes, which arbitrarily eliminated wetlands.  He stated he will comply with every regulation that is already in the books with Brevard County Land Development and the St. Johns River Water Management; and what is in front of the Board this evening is a simple request for a zoning change, which is compatible with the surrounding neighborhoods; and the property has been up for rezoning in the past, but with the current economic circumstances of the community, it is time to move forward.   He  stated  the  project  would  also  put  in a new tax base; it would also

eliminate open land that is not doing anyone any good; the only thing that could be done under the AU zoning would be to put a couple of houses out there, or start to use it for some type of farming operation or something not compatible anymore; and unfortunately there are people who have lived there for a long time and the mindset in a lot of communities is that they do not want to approve anything.  He advised when he was in front of the North Merritt Island Dependent Special District Board he was asking for an agricultural exemption to clear the property; and he was going to do some agricultural pursuits prior to development.  He stated he was granted the agricultural exemption; he did not do it exactly right, and he had to make things right, but everything is 100 percent compliant; and there are allegations that he brought fill in to the property, but he did not.  He stated he has done everything within the limits of the law; but some of the neighbors do not like change; and he would like to reserve some of his speaking time to address some of the comments that might be made by the neighbors.  He stated the final response of the North Merritt Island Dependent Special District Board was that it might have been inclined to approve the project, however, it did not believe that he is deserving because it felt he misrepresented with getting the original agricultural exemption; and stated whether deserving or not, the question is if the property is truly compatible with the neighborhood. 

 

Commissioner Scarborough inquired if Mr. Anderson could briefly describe what has changed in the Binding Development Plan; with Mr. Anderson replying at this point he realizes there may be some necessity for drainage; he was at 10 units; and now it has dropped to nine units.  Mr. Anderson stated last year he was requesting SR; but since that time it has been changed to request RR-1; and through meetings with Commissioner Nelson he has tried to make it as community friendly as possible.  He advised he would be allowed to develop five units no matter what; or under a new resolution there may be a possibility to get a minor subdivision with staff at six units; and he is asking for much less than the neighbors to the north, east, and west. 

 

Julian Lindenauer stated 89 homeowners from North Tropical Trail, Sunset Lakes and Sunset Groves communities have signed petitions asking that the Board deny the request for rezoning.  He stated from the communities of Sunset Groves and Sunset Lakes the petition reads, “We, the homeowners of Sunset Groves and Sunset Lakes subdivisions submit this petition against the rezoning request of Linda K. Reel and Steven G. Anderson.  The property is adjacent to the west side of Sunset Groves subdivision and to the south side of Sunset Lakes subdivision.  Due to the nature of property and requirements for home construction, the granting of this rezoning change will negatively impact the wetland and place the communities of Sunset Groves, Sunset Lakes, and North Tropical Trail in danger of being flooded by hurricanes, tornadoes, and other severe weather conditions.  The rezoning will also result in other adverse consequences to a way of life, safety, and comfort.  We sincerely and respectfully ask the Board of County Commissioners to deny this rezoning request.” He read, “The residents residing on North Tropical Trail, petition the Brevard County Commissioners to deny any change of zoning classification to the property mentioned.  We cite Administrative Policies 3 (criteria A), 4 (criteria A), 5 (criteria C, D, E, and G), Policy 6, Policy 7, and Policy 8, Section 62-1151 (C)(5) Code of Ordinances  of  Brevard  County.  We  are  also  aware  of  the  agricultural  exemption  for  land clearing issued to Steven Anderson and we feel that the zoning would be in direct violation of the agricultural exemption and proposed  use listed  for  tree or citrus farm, which was stated by, agreed to, and signed by Mr. Anderson and Brevard County Department of Natural Resources and approved by the County Zoning Department.  We are all residents in the immediate area of the zoning request.”  He stated he would repeat again that 89 residents who are aware of what can happen to their properties if this rezoning request is approved have signed the petitions and they request that the rezoning be denied as it was at the last hearing.  He thanked the Board.

 

Pam Martin stated she resides on Biscayne Drive in the subdivision of Sunset Groves; her property backs up directly to Mr. Anderson’s property; and she has concerns about the proposed zoning change.  She advised she attended both the North Merritt Island Homeowners Association meeting and the North Merritt Island Dependent Special District Board meeting where Mr. Anderson was invited to present his site plans and to answer questions.  She stated during the North Merritt Island Homeowners Association meeting Mr. Anderson appeared very amenable and said he would certainly take into consideration the neighbors’ concerns and bring the Binding Development Plan back to the table to share with the homeowners; she received a copy of the original plan and the new one this evening; and at no time were the homeowners involved.  She stated she acknowledges that Mr. Anderson has the right to purchase and develop property; when Mr. Anderson purchased the property he was quite aware of the unique environmental issues that he was dealing with; and Mr. Anderson has been before the Board in the past asking for changes of zoning which were denied.  She noted Mr. Anderson was finally granted an agricultural exemption for the purposes of planting a tree farm; in January 2006 she arrived home to the sight and sound of bulldozers clearing the land from Mr. Anderson’s property; and she understands his permit was not received until February or March 2006.  She stated although Mr. Anderson assured the homeowners at both meetings that he did everything he could to protect trees and desirable plant life, in two to three days nothing outside of the protected wetlands, which he could not touch, was left; and instead there is a vacant lot which has never been utilized for agricultural purposes.  She advised in Mr. Anderson’s presentation to the North Merritt Island Homeowners’ Association and the Planning and Zoning Board, Mr. Anderson made a number of verbal concessions to allay concerns that the various homeowners’ subdivision had; one concern was a vegetative buffer zone; as Mr. Anderson cleared the land he also cleared a 20-foot tall vegetative buffer; and she did not know there was a house back there until the land was cleared.  She stated in the original Binding Development Plan Mr. Anderson made a concession that the subdivision would provide a vegetative buffer between Sunset Groves and the retention pond area and Sunset Lakes; but that has been removed from the Binding Development Plan; and her question was how tall the vegetative buffer would be and who would maintain it.  She stated the issue is important to her family because they live on the east side of the retention pond and Mr. Anderson’s original plan was to market Lot 12 as a lake view lot; and Mr. Anderson assured her that would not be the case and he would take care of that.  She stated Mr. Anderson also stated he would be clearing the existing home, but the new Binding Development Plan makes no reference to that.  She noted another concern she raised at the second meeting was future development on Lot 12 with two-story housing, which would negate the whole issue of a vegetative buffer; and it would be a direct look into everybody’s back yards.  She stated the Board will hear from other homeowners about the impact on wildlife in the area; the County’s own report stated there may be gopher tortoises or scrub jays on the property; and at one of the meetings someone mentioned not seeing any Bald Eagles anymore,  and she  agrees  that  they migrate, but no one has seen any eagles or otters or other wildlife that was seen prior to clearing of the land.  She stated another concern is the east and west sides of the retention pond; pictures show how high the lake levels have already come up; the drainage is a concern as it is the highest it has been since the 2004 hurricanes and it does not seem to be going down.  She stated Mr. Anderson has insinuated that the homeowners’ properties drain onto his property, but that is not the case as his land is sitting higher and whatever has gone on back there is already impacting the retention ponds. She stated at the North Merritt Island meeting Ms. Hillberg offered what she believes to be a very satisfactory resolution for the property which would still allow Mr. Anderson to develop and recoup his expenses for the purchase of the land; the western parcel of the land that borders North Tropical Trail offers enough land to build four or five houses with substantial sized lots without the difficulties associated with working around odd shaped lots and the wetland areas.  She stated she would urge the Board to review Ms. Hillberg’s suggestion and deny Mr. Anderson’s and Ms. Reel’s request.

 

Tom Crowell handed out information to the Board and to the Clerk.  He stated the reason for the handout is to give the Board an idea about where he lives and what he has seen over the last eight years.  He advised he lives in Sunset Lakes directly adjacent to the property that is under proposal; when he bought his property he was told by the developer of Sunset Lakes that the area behind him was wetlands and was unbuildable; it was later while searching for his tax records that he found out that Mr. Sperli at the time owned the property directly behind his house; and he was concerned because the reason he bought his house was for the trees and wildlife that were in the area.  He stated he contacted Mr. Sperli at the time to voice his concerns and that he was hoping the area would never be developed and that he would not lose the pristine beauty that he had directly behind his home; and unfortunately the property was sold to Ms. Reel and Mr. Anderson.  He stated he does not begrudge the applicants from developing their property, however, he thinks the homes should be limited in the area.  He stated he has seen the wildlife that has been mentioned, from gopher turtles to a bobcat, to a Bald Eagle, owls and other kinds of birds; and several gopher turtles have laid eggs in his yard prior to the development.  He stated he has a concern over Administrative Policy 7, which states, “Proposed use shall not cause or substantially aggravate any substantial drainage problem or significantly adverse an unmitigatible impact water bodies or habitat for listed species.”  He stated he also has a concern with the water level; the area directly behind his property is partly adjacent to the area that is cleared; and that area gets very wet, especially with the amount of rain the area has recently had.  He stated he would respectively request the Board deny the request.

 

Ray Scarpa handed out information to the Board and to the Clerk.  He stated there is a list of items on the original Binding Development Plan which have been totally removed; and those were some concessions that were made during the discussions for the development of the property with homeowners’ association that was taken out of the Binding Development Plan.   He stated the item that concerns him is the drainage; and if the Board looks at the center of the drawing  of  the property  there is a  wetland in the center with a berm  all the way around it.  He stated the handouts he gave the Board shows a green area which represents the wetlands; and inquired if a berm could be put around a wetland.  He stated if the Board compares the drawing to the wetland  overlay it will see that the  wetlands extend  beyond the northern boundary of the Anderson property; and inquired if it is legal to build a berm across a northern side of a particular wetland area.  He stated the elevation of the property has been raised three to four feet; and inquired if anyone has investigated to find out the impact to the wetlands.  He stated the wetland overlay pictures show the wetland area in light green; he feels that is misleading because the water and the wetlands do not stop at the edge of the green area; and he believes the overlay depiction is conservative to say the least.  He advised St. Johns River Water Management District should take another look at the area to see if the designated wetland area is accurate and up to date.  He noted his house sits on the north end of Sunset Groves; and inquired who will be legally responsible if flooding occurs in Sunset Groves and Sunset Lakes.  He stated he feels the zoning change request is contrary with Item Seven of the Administrative Policy of the Future Land Use Element and he would respectfully request the Board deny the request.

 

Jeffrey Ford stated he owns the lot beside Mr. Anderson’s lot on Perkinson Lane; it is a half-acre lot; and he has owned it for approximately six years.  He stated he bought the lot as a investment or as a future home; he had thought the acreage was a good place for a subdivision and he reacted and accordingly made his purchase and has waited for years for somebody to come in and develop it into the area the way it should be for the neighborhood and up to the standards of the surrounding area; and it would be better than the surrounding areas because Sunset Lakes is five houses per acre and the one to the east is three or four houses per acre.  He stated as of right now, Mr. Anderson has the right to build six houses; he does not think three more homes would make a big difference; and he thinks it would be an asset to the County as far as revenue coming in for tax purposes.  He stated Mr. Anderson’s subdivision would have to be policed by all the County builders, inspectors, and engineers; stated Mr. Anderson would have to abide by the laws and regulations; and he does not see a problem. 

 

Steve Phillips stated his house is on the east side of the Sunset Groves lake that abuts the subject property; the community is made up of a lot of senior citizens who are probably in the final home they are going to own and are on a fixed income; there is no way anyone can afford a flood or anything that would cost a great deal of money to bring a house back to the previous condition.  He stated he was in his house during the flooding a few years ago and he watched the subdivision’s lake run south because the community was well developed; the way the community was planned was well done; and the developer did due diligence in making sure the people in the community were taken care of.  He read a statement from a senior citizen in the community, “It appears that our previous efforts to forestall over-development of the Anderson property behind Sunset Groves, one mile north of the barge canal, have been fruitless.  I have pointed out in prior emails to Commissioners serving under Chairman Pritchard that we were deeply concerned about flooding of our properties as well as Biscayne Drive during a hurricane.  Our retention pond and overflow system tied into the conservation area installed by the developer Bill Strand would be overtaxed by runoff and adjacent housing division.  As far as I’m concerned I think the best solution to this ongoing zoning fight is for Brevard County to purchase the Anderson property  and turn it into a nature  preserve.  We miss the great northern owls, the golden eagles and the kingfishers, which we observed from 1996 to 2000; visits of wood storks, herons, egrets, and various ducks have also  declined considerably since Anderson has cleared the site, presumably to grow trees on it.”  He stated he respectfully requests the Board deny the request for rezoning.

 

Scott Kennedy stated his house is adjacent to Mr. Anderson’s property; he is concerned about how to get a good access road to the property for nine more houses; the retention pond behind his house is already high; and he does not see how it would be possible to bring in fill dirt to get the additional houses high enough.  He advised he also has some environmental concerns that were addressed by other speakers.

 

Joseph Doepel stated he lives at the entrance to the subject property; and he would like to speak about the Administrative Policies of the Future Land Use Element.  He stated Administrative Policy 3 (Criteria A), states, “Whether the proposed use would have hours of operation, lighting outdoor noise levels, traffic or site activity that would significantly diminish the enjoyment of safety and quality of life in existing neighborhoods within the area which could conceivably be affected by the proposed use.”  He stated Section B states, “Whether proposed use would cause a material reduction of five percent or more in the value of existing or abutting lands or approved development.”  He advised surveys of people who are interested in buying in the area previously when the environment was a little better were asked if they would buy his house if it had a County road on three sides of it; some people told him they would buy his house if it was 10 to 25 percent off the value of the home so they could turn it over and make a profit; and a year ago, his Attorney and Mr. Parsons from Tuttle Armfield and Wagner stated having a road on three sides would devalue his home.  He stated Administrative Policy 4 talks about the character of a neighborhood or area should be a consideration whenever a rezoning application is reviewed; the character of the area must not be material or adversely affected by the proposed rezoning or land use application; and Criteria A reads, “The proposed use must not materially or adversely impact an established residential neighborhood by introducing types or intensity of traffic, including but not limited to the volume, time of day of traffic activity, type of vehicle, et cetera, parking, trip generation, commercial activity, industrial activity, that is not already present in the identified boundaries of the neighborhood.”  He stated right now it is a private drive and the only people who use it are the homeowners and possibly Federal Express; and the type of traffic would certainly change if that was turned into anything from a private drive to any type of road going back to a development.  He commented on trip units; although North Tropical Trail is below its intended use, he has three reports of where people have come around the curve and driven through properties; he has witnesses who said there have been about seven more accidents; and putting many trip units into the curve is going to add to the endangerment of the residents.  He stated Administrative Policy 6 states, “All written land development policies set forth and these Administrative Policies should be considered,”; and Policy 7 also states substantial drainage problems and safety and welfare in Section 8.  He stated he would like to see the Board deny the request; rezoning was denied when the Sperli’s requested one-acre lots; there are factual issues that need to be looked at; and it will devalue his property and he will be left with no choice but a legal course of action. 

 

Robert Atkinson stated he has lived on North Tropical Trail, next to the proposed entrance to Perkinson Lane for 22 years; during that period of time he has seen traffic increase; and he   has   also   seen   a   lot  of  accidents.  He stated it is difficult to get out of his own driveway because of the traffic; Perkinson Lane is proposed to be right in front of his property, which will make it even harder to get in and out of his own property; and he would like the Board to deny the request.

 

Greg Proctor stated he is with Campbell Surveying and Engineering; and he is the engineer for Mr. Anderson on the subject property.  He stated Mr. Anderson asked him to discuss one of the primary concerns that many people have mentioned, which is the drainage issue on the site; he has heard the comments before about the lakes rising; but that is what they are intended to do.  He stated the property has some unique features because of the wetlands that are existing; but the developments to the north and the east were once existing lands and their characteristics were changed when they were developed; and the developers formed and created their own water management system to take care of their drainage.  He noted the developers had to do that in accordance with the requirements by St. Johns River Management District as well as the County; and Mr. Anderson will have to do the same thing.  He stated the properties are not in a flood plain and the drainage can be handled correctly onsite.  He stated Mr. Anderson is proposing up to nine units; and he informed Mr. Anderson he may lose some units during engineering and design depending on how much additional storage has to be had on site.  He noted the wetlands will be kept intact; a buffer will be included around the wetlands that cannot be filled; and he does not see any problems with handling their own drainage just as the others have done and in accordance with the County.  He stated the County is going to look at the stormwater management system in terms of the impacts on drainage and the wetland hydrology; and it is going to have to be proved to the County in both cases that the development is compatible to the rules.  He stated he does not see drainage as an issue that has been brought up by different speakers; 40 percent of the site is green and it is going to stay that way; nine single-family homes does not generate a lot of runoff, as it is low density; the soils are permeable; and he does not see a problem with the drainage. 

 

Commissioner Nelson inquired of the total uplands; with Mr. Proctor responding approximately five and a half acres.  Commissioner Nelson inquired how much land the wetlands constitute; with Mr. Proctor responding the wetlands are 3.77 acres, and the wetland buffer is .86 acre; and on top of that is the buffers that will be provided as the 15-foot buffer tracts that are required, and they total 3.7 acres, which will be the buffers on the perimeter of the property.  Commissioner Voltz stated someone mentioned a berm around the wetland, and it was pointed out that the wetland is contiguous to the wetland north of the property; Mr. Proctor replied he heard there was a berm at the north end of the wetland.  Commissioner Voltz inquired why the map shows a buffer all the way around; with Mr. Proctor responding that is the buffer that is planned to be created.  Commissioner Voltz inquired if it is a buffer or a berm; with Mr. Proctor responding it is a buffer.  Commissioner Nelson stated in the previous Binding Development Plan there were ten lots; and inquired if there was any attempt to try to actually lay out what could be built; with Mr. Proctor responding he has come up with some plans to show that nine lots can be put in; but it has not been engineered for nine lots.   Mr. Proctor stated if the project gets beyond  the rezoning to a site  plan process,  the engineering and calculations will be done; Mr. Anderson will enter into an agreement in which he is allowed to go up to nine units; and if that number has to be reduced because of the water management criteria, then it will be reduced.   Commissioner Nelson noted in the previous Binding  Development Plan the lots were only half-acre in size to achieve the 10 units; and inquired how one lot can be dropped and get lots that meet the one-acre criteria; with Mr. Proctor replying the site plan will be filed under the Open Space Ordinance.

 

Mary Hillberg stated she lives in the Sunset Lakes subdivision which holds all of its stormwater in 10 connected retention ponds that goes under North Tropical Trail, through Island Estates and out to the river; and Sunset Groves is also curb and gutter and all the street draining goes into their retention ponds.  She gave the Board a handout as well as the Clerk.  She noted the handout is from the National Wetlands Inventory; the topography has changed because the applicant has changed it; but the original wetland areas area still there.  She passed out a handout given to her by the applicant outlining the 10 properties he wanted; the lots are given numbers, and to the right, next to Lot 8, which was to be advertised as lake front, with the lake being the community’s retention pond.  She noted the North Merritt Island Dependent Special District Board has unanimously recommended denial; and the North Merritt Island Homeowners Association has also denied the request previously as well as currently.  She stated the North Merritt Island Homeowners’ Association is a firm believer in property rights, and it does not take that away from the applicant; but it believes a person’s right to develop property ends at putting others’ properties at risk; and the Homeowners Association believes this extent of development would put the surrounding areas at risk.  She stated another issue is that during the North Merritt Island Dependent Special District Board meeting, staff stated the applicant had the right to build right now with no changes, four units; if he upgrades the road to the County standards the applicant can build five homes; and the neighbors are not asking the applicant be denied any property rights, but they are requesting the application be denied as it is excessive for the area and it involves risking other properties in terms of traffic, runoff, and wetland invasion. 

 

Linda Reel stated the reason the Binding Development Plan was reduced was because she and Mr. Anderson wanted to reduce the density request by one unit; and any of the other items the neighbors want put back in the Binding Development Plan, she would be happy to do so.  She stated the neighbors spoke of the clearing permit, which she and Mr. Anderson were in compliance with; the clearing was done with full intention of being able to do a tree farm; Mr. Anderson had shoulder surgery and was not able to do the lifting on a tree farm; and that plan was put on hold.  She noted there was a question as to how the berm comes into the wetland, but that berm was something that was put onto the property by another development; and right now five units are allowed, and nine units may not be allowed based on the layouts.

 

Kris Herbert stated she is an Environmental Consultant with BSE Engineering; she was on the property prior to it being cleared; and she would like to straighten out some comments that have been made.  She stated she did not observe any gopher tortoises on the property; there was one abandoned burrow; and there is a difference between tortoises and turtles; the previous speaker may have had some turtle species lay eggs on his property, which are different than the gopher tortoise, which would lay eggs at the base of a burrow; and the likelihood of that species being on the  gentleman’s  property is unlikely.  She  stated there are no bald eagle nests on the property; but they may have utilized a resting spot on the property previously.  She advised the wetlands on the property are intact; Mr. Anderson cleared the upland areas; she went out to the property and flagged all of the wetlands prior to any clearing activities on the property; and most of what Mr. Anderson cleared was invasive species such as grape vines, Australian Pines, and Brazilian Pepper trees.  She advised the wetland soils are mapped as a hydric soil and they hold their water; there is a lot of water in them now; but that is the function a wetland is supposed to do, which is acting as a natural sponge and absorbing water.  She stated there is no berm around the wetlands; they are the natural topography; the landscaping slopes to the wetlands; and naturally, the runoff from the property may run towards them as is, and that will be incorporated in the site design.

 

Mr. Anderson stated the water will be held on the property; there will be less density on the property than on some of the surrounding areas; there are 300 homes to the north, 50 homes to the right; and he is asking for nine homes.  He stated if a subdivision is put in, it will be bound by buffers, landscaping, trees, and it will not be like Sunset Lakes where one can hear his or her neighbors talking through the walls.  He stated he did not do anything illegal; he brought the property into compliance; no fill was brought in; and based on the land, it seems as if nine lots is very reasonable.  He stated the development will be a private subdivision; and it will not cost Brevard County any money to maintain. 

 

Commissioner Voltz stated in the Binding Development Plan on number three, there were additional items, but they are not on the current BDP; with Mr. Anderson replying that was done very quickly to decrease the density, and he does not understand why it did not get pasted to the new one.  Commissioner Voltz stated she is looking at the items that indicated a road would be constructed leading from North Tropical Trail to the subdivision of concrete speed humps at appropriate intervals, swale drainage, the entrance to the subdivision being gated, and the road within the subdivision shall be of concrete pavers, the drainage within the subdivision shall be self-contained, septic tanks shall not be permitted to impact wetlands, and the subdivision shall provide a vegetative buffer behind homes built on the lots backing up to Sunset Lakes and Sunset Groves; and inquired if number three on Mr. Anderson’s new BDP includes all of those items.  Mr. Anderson replied a better way to approach that may be to just decrease the zoning on the prior BDP and use that first one.  Commissioner Voltz inquired if the only difference between the old BDP and the new BDP is the one unit; with Mr. Anderson responding affirmatively.  Mr. Anderson stated he is doing everything to lessen the impact on a property that needs to be developed.

 

Commissioner Nelson inquired how many lots can be created by the existing zoning; with Zoning Manager Rick Enos responding the applicants can conceivably get five units with the two and a half acre-lot zoning; but he does not know how likely that is once roads and retention are put in; and he believes four units is more likely but five units is possible.  Commissioner Nelson requested Mr. Enos describe the purpose of the Open Space Ordinance; and apparently that is what the applicants are considering using to get nine units.   Mr. Enos advised under the Open Space Ordinance lot sizes can be reduced and the tradeoff is that some portion of the property is retained in its natural state, including some uplands; it is conceivable that that may be the only way to get nine  units on the property;  and in the RR-1 zoning one could go down to as low as a half-acre on the lots that do not abut larger lots on the perimeter.  He noted the west side may have to stay larger than one acre, but the other lots in the subdivision  may have to be as low  as half-acre.   Commissioner Nelson  inquired  how  the   determination  is  made  on the tradeoff of preservation to development on the unit count; with Mr. Enos replying the number of lots cannot increase by more than 25 percent, however, with the BDP the applicants are staying within the limits of the RR-1; and they are not getting an increase in the number of lots.  He stated if it were a piece of property that did not have the wetland restrictions, then the applicant could get that number of lots with one-acre lots.  Commissioner Nelson inquired if there is any calculation used to determine how much uplands has to go with the wetlands; how much uplands has to be given up to get the desired number of units.  Mr. Enos responded there are provisions in the Code as to the percentage of the total site that has to be uplands; but he does not know the answer to Commissioner Nelson’s question.

 

Commissioner Nelson stated there is AU zoning adjacent to the subject property on the west and south, but that does not always get pointed out; he is concerned the Board is having to look at a program that gives additional units; and it is supposed to be that the zoning is there and to get the additional units the Open Space Ordinance can be used; the Board is doing it backwards by using the Open Space to get the zoning; and he does not think that was ever the intent of the Open Space Ordinance.  He stated two months ago when first looking at the plan he hoped there would be something the community could look at; and a lot of what is being heard is that the community does not know what could happen.  He stated he thinks the AU is compatible because there is AU adjacent to the property; and if the applicant is going to change the zoning use, they have a duty to express how they are going to make it compatible and get the increases; and he is not comfortable that he has seen that. 

 

Commissioner Voltz inquired if there is a maximum number of units Mr. Anderson would settle for because nine units is quite a bit; and Mr. Anderson can already do five units, and maybe six or seven units with a BDP.  Mr. Anderson stated until the drainage calculations are actually done, he is only asking for a maximum of nine units; he understands with a BDP he can never go over nine units even though the Open Space Ordinance may allow for it; and it should be a comfort factor that he can never go over nine units.  He stated Mr. Proctor misspoke and there are nine acres of uplands; and if it does not meet the criteria he will have to drop the number from nine units to eight units.  He stated although there is some AU near the property, the majority of what is there is much larger density.

 

Motion by Commissioner Nelson, seconded by Commissioner Voltz, to deny Item VI.A.1. as recommended by the North Merritt Island Dependent Special District Board.  Motion carried and ordered unanimously.  

 

 

Chairperson Colon stated she will not be present to hear the next item and before the Board takes a break she would like to share with the Board that the next item is of great concern to her; the request was before the Board more than one year ago; and she has the same concerns now as she did then in regards to safety, traffic, distance from I-95, and activities going on west of I-95.

 

Chairperson Colon’s absence was noted at this time.

 

The Board recessed at 6:47 p.m. and reconvened at 7:07 p.m.

 

 

VI.A.2. (Z0709104) Janendra Gautam and Harbans Sing Ranshi’s request for  a change from BU-1 to TU-2 on 2.88 acres, located on the southwest corner of S.R. 520 and Lake Poinsett Road, which was recommended for approval with a Binding Development Plan by the Planning and Zoning Board. 

 

Cliff Repperger stated he is an attorney with Gray Robinson and he is representing the applicant.   He submitted letters of approval of the project to the Board and to the Clerk; and stated the letters included are from the manager of the Cocoa Expo, Giles Malone, and also several residents living in the neighborhood who could not be present.  He stated crime numbers will be discussed and he would like to distribute to the Board analysis of the crime figures from some relevant hotels in the area; and he distributed the analysis to the Board and to the Clerk.  He stated he appreciates Chairperson Colon’s comments before she left; he knows there is significant concern regarding the project, however, he wants to make it very clear that this is not the same project that was in front of the Board two years ago; and there are a number of changes that have happened over the two-year time span.  He advised there are a number of different considerations he believes the Board should give to the project that were not taken into account two years ago; and he understands there are concerns regarding the project; but he requests the Board to keep an open mind as the project has changed significantly.  He advised what is requested is a rezoning from BU-1 to TU-2; the applicant would like to put a hotel on the property; the property is 2.88 acres located just south of S.R. 520, west of Lake Poinsett Road; there is BU-1 to the north, west and east; and there is SR and AU to the east and SR to the south.  He stated the applicant has proposed a Binding Development Plan (BDP) with the project; it includes several different conditions on the development of the hotel project; and he will let Land Planner Ryan Rusnak discuss the details of the project and the BDP.  He noted there is significant buffering the applicant is proposing to the residents to the south; it is different than what was proposed at the Planning and Zoning meeting in terms of the fact that there is now a conceptual site plan that the applicant did not have at that time; and at the Planning and Zoning meeting the potential of having parking buffer up to the residents of the south was discussed; and that is no longer an issue as there is now a retention pond and landscaping; and there will be a 10-foot masonry wall along the south end of the property, dropping to four feet within the proximity of Lake Poinsett Road.  He advised the applicant is also proposing landscaping within 20 feet of the wall and a substantial amount of tree preservation on site at the same time.  He noted the development will be limited to 35 feet high with a 20-foot landscape buffer and a 15-foot landscape buffer around the adjacent roadways; access is limited from Lake Poinsett Drive at the request of the residents; he tried to meet with the residents and address their concerns to the greatest extent possible; and a number of concessions have been given with regard to the development of the project that the applicant would not have to engage in if developing a project as BU-1.  He noted a commercial facility could be built and none of the concessions he has mentioned to the Board would be applicable, certainly not the landscaping and the 80-foot buffer being proposed.  He stated crime is an issue the Board is going to hear about from the residents; and he would like to address some of those issues.   He  stated  the  Board  has  an  analysis  of  the  Brevard  County Sheriff’s Office Crime

Reports for some of the hotels that are near the subject property.  Commissioner Scarborough inquired if Mr. Repperger provided the community with copies of the crime reports; with Mr. Repperger responding the numbers are no different than the information that was provided at the Planning and Zoning meeting; but there are some other copies if the residents would like to look at them.  Commissioner Scarborough stated he would like for everyone to speak from the same sheet of paper; and he would ask the same thing of the residents.  Mr. Repperger stated on the second page is the map that is broken down between the hotels currently existing in the area; there is a Best Western, Holiday Inn Express, Super 8, Ramada Inn, and Days Inn; for comparative purposes The Hampton Inn and Imperial Hotel were used that are located off of Wickham Road.  He advised the reason why those hotels were used is because the majority of hotels that are in the area, except for the Holiday Inn Express, are all external access hotels; the applicant is proposing a completely internal access hotel with all room accessing to the internal corridors of the hotel; and also being proposed is an internal pool, so there will be no external access to the rooms.  He stated he believes the hotels that are currently existing in the area, some of which are very old, are all external hotels; and the numbers support the fact that the older hotels that are external access only are more of the crime areas than what the applicant is proposing; and what is being proposed is a high quality product that does not fall into the same classification as those hotels.  He advised he has pulled all of the Brevard County Sheriff’s Office reports for those hotels from the period of January 1, 2005 through October 24, 2007; he has given the Board the breakdown of the percentage from each hotel the numbers of calls, the percentages broken down into the category of crime that each call related to and then a percentage on the end of chart that is the percentage of crime related to the interior hotels versus the exterior hotels; and what is significant with the numbers is that a vast number of the crimes are less significant events and incidents than one would expect to find in big stack of crime reports.  He stated 62 percent of the calls that came in were related to traffic stops, accidents, patrols, telephone call hang-ups, and miscellaneous items that are not associated with the property, such as a vehicle tow, a warrant arrest, missing persons, animal complaint, process service, and report writing; and in that 62 percent of calls over a period of time there are 38 percent of the crimes that are related to things he thought were significant to the community, such as suspicious activity, assaults, narcotics, gambling, prostitution, robbery, lost property, and trespassing.  He stated when looking at the calls and breaking them down, the Board will see the interior hotels have a far less percentage than the exterior hotels in those areas of crime that are significant; for instance, under the narcotic, gambling, and prostitution category, the Board will see that Imperial Hotel has two of those calls accounted for; and Holiday Inn had four of those calls, which is six of the total 24 calls that were from internal hotels.  He stated the chart shows that interior hotels have lower incidents of crime reports than the external properties that are substantially older; he believes his client is offering a high quality, high-end product that is different than what currently exists in the area; and he does not believe that what is being proposed is in any way going to affect any type of crime to the neighborhood.  He stated his client is offering to affiliate with a national chain and there would be room rental rates of no less than $100.00 per night; the hotel is attempting to market at business travelers, families, and to people  who  are attending events at the  Cocoa Expo;  there  are  not  sufficient  hotels  of  high quality types in the area that families coming to the Cocoa Expo for events can stay at in the area; and the proposed hotel is across the street from the Cocoa Expo facility.   He  advised the  site plan makes it highly  compatible  and to  some  extent, even more compatible in some areas, than one might find with a BU-1 use.  He noted when the project came before the Board previously, one of the big issues related to the project was the fact that the project was found at that time not to be within a half-mile of I-95, which it needs to be to have the TU-2 zoning; at that time there was not a survey; and since that time a survey has been performed and it has been determined that the property is within one half-mile of I-95 and staff has not objected to that.  He stated he will let Surveyor Joel Seymour address the surveying issue and how the property was determined to be within a half-mile of I-95, such that the TU-2 zoning classification is appropriate. 

 

Joel Seymour, Surveyor with Kane Land Surveying, stated earlier this year his company was asked to determine the distance from the subject parcel to the I-95 right-of-way; he established the western limits of the I-95 right-of-way by the use of the State Road I-95 right-of-way maps and also the S.R. 520 right-of-way maps; the distance was determined from the western limits of the right-of-way of I-95 to the subject parcel to be less than a half-mile; and therefore, pursuant to Brevard County Section 62-1512, it is his opinion that the property is compliant and less than one-half mile from I-95. 

 

Commissioner Scarborough inquired why it was a certain distance two years ago and now it is a different distance; with Mr. Seymour responding he was only asked to do the surveying once, so he cannot comment on where the first set of numbers came from.  Commissioner Scarborough inquired if the numbers were close; with Mr. Seymour replying it was within 30 feet.

 

Ryan Rusnak stated he has been a practicing land planner in Brevard County for over 11 years.   He advised the request is a change of zoning from BU-1 to TU-2; he is often asked as a planner if a zoning is compatible with the area, and if it is consistent with Brevard County regulations; and that is a general question with the answer often times being that it depends on the use of the property.  He noted when looking through the list of BU-1 uses, there are at least 100 uses that can be done, including automotive sales and garages, grocery stores, hospitals and gas stations; and there is the potential for incompatibility with the existing zoning with the surrounding area.  He stated structures could be located within 22 feet of the south property line; the applicant is already authorized by Code to construct a 35-foot high building; and the Code minimum right now is the construction of a six-foot high wall.  He advised the TU-2 zoning allows for just a handful of uses when compared to the BU-1 zoning classification.  He stated a question asked from many people is why the request was denied in 2005 and what is different now; he was there at the time and there was no survey and what was relied on was the mylar maps, which is a one-inch to 200-foot scale; and it was attempted to be determined on those old maps what the physical scale was, and it was close, but staff was not quite sure.  He stated Joel Seymour is a professional surveyor and he has opined that the property is within one half-mile; and in the introduction to the TU-2 section it states, “The TU-2 Transient Zoning classification encompasses land devoted to tourist facilities located within one-half mile from Interstate or Expressway right-of-way interchanges.”  He noted “right-of-way” is the key word, which is how it was measured and determined to be within one-half mile.  He stated the last time TU-2 was requested, a Binding Development Plan was not offered.  He stated he and the applicant has worked very hard with the neighbors to try to come up with a plan that they feel makes the use compatible, and even more compatible with some of the BU-1 uses that are offered; items in the BDP include an 80-foot building setback to the south property line, no access off of Lake Poinsett Road, a hotel that has no balconies, no exterior access to hotel rooms, interior swimming pools, affiliation with a chain hotel, $100.00 room rate, and the masonry wall will be increased in height to 10 feet, except in the road right-of-way.  He stated when presented to the Planning and Zoning Board, it approved the request; at the time, he thought there would have to be parking and uses in the 80-foot setback, because he did not think the parking would be allowed in the front; and the Planning and Zoning Board approved the request and found the project to be within the half-mile distance from I-95.  He advised they have since gone back to the drawing board and heard from some of the residents who are concerned about some of the uses that would occur in the 80-foot setback; and all of the uses except for the masonry wall, retention, and landscaping, have been moved out of the 80-foot setback.  He stated he has spent a little bit of time on the property and there are a lot of majestic oaks on the property; some are 25 to 35 feet high; and the Board can see the area that is being preserved and the amount of trees in the landscape areas.  He stated TU-2 is compatible with the area; with the way the property has been designed and crafted it is consistent and compatible with the area and he believes the request is consistent with the Brevard County Regulations; with respect to traffic, staff notes in its analysis that average trips generated from retail would be just over 1,200; and trips generated from a hotel are just 582, which is a reduction.  He stated he has a report from a transportation engineer which is proof that all of the intersections are operating at services that are acceptable, and will continue to be so with the development of a hotel.

 

Commissioner Scarborough stated the Board can make copies of the traffic engineering report.

 

Doug Sphar stated Susan Frank is passing out a package to the Board and to the Clerk.  He advised he owns residential property on Lake Poinsett off of Lake Poinsett Road, which is the only access for the community.  He stated the staff summary asks the Board to consider the compatibility of a 50-unit per acre tourist classification; it is incompatible with the area and should be denied because of the intensity of activities associated with a three-story hotel is not in character with the adjacent community; and most of the intensity plays out in the evening and early morning.  He stated the residents do not oppose single-story commercial enterprises that have a footprint that accommodates the environmental attributes of the property, nor would loom over their property; the applicant proposes to build what he calls a high-end hotel; but the residents fear a budget or economy product will be built.  He requested the Board look at page two of their package at the surrounding uses; the dye is cast for this being part of a brand new entrance way to Cocoa; the residents believe the hotel would attract many youth groups that train at Cocoa Expo; and those groups want budget pricing and close proximity to the training field.  He stated the youths are seen walking in groups along Friday Road to the convenience store; the store posts signs restricting the number of youths that may be inside at any one time; the residents are not against youth and sports, but are familiar with he boundless energy of youths  that  get played out  in  boisterous  antics  in the hotel parking  areas; and this is why the residents would prefer a commercial enterprise that works conventional business hours.  He noted the Planning and Zoning Board asked the applicant to define high-end; the applicant showed some brochures of hotels from the Wyndham Group; the Wyndham Group includes Baymont Inn, Days Inn, Howard Johnson, Nights Inn, Ramada Inn, Super 8, Travel Lodge, and Wingate; and to him, that sounds like economy or mid-level hotels.  He stated the applicant also mentioned LaQunita, whose website identifies the brand as being in the limited service sector segment, which is often lumped with economy; a business traveler is going to travel a few extra miles to go to Cocoa Beach or Cape Canaveral because there are no sit-down restaurants or entertainment in the vicinity of I-95; and Price Waterhouse Cooper states the average hotel room in the United States is 325 square feet, with luxury products averaging over 470 square feet.  He stated to encourage the more sedate clientele of a high-end product, the residents suggest a minimum room size of 400 square feet, rather than a nebulous $100 per night room rate that is mentioned in the applicant’s BDP.  He advised the applicant’s hotel will not be visible from I-95; according to the FDOT right-of-way map, it is approximately six-tenths of a mile west of the I-95 traffic lane; and the sign will not be seen because it is restricted to 35 feet; and because of the bulge of the I-95 traffic lane, the applicant meets the letter but not the intent of the Code to taper off intensity of use proceeding from the interstate.  He noted the Holiday Inn at I-95 is undergoing a room expansion.  He stated Tab 3 in the Board’s package notes the wetlands and protected trees on the applicant’s property; the Tree Protection Ordinance requires that protected trees be placed at 150 to 200 percent of diameter; and there does not seem to be enough trees on the property.  He advised Tab 4 shows some of the active gopher tortoise burrows on the property; the sand ridge that accommodates the tortoises is where the applicant proposes to place a stormwater pond; and there is no other tortoise habitat on the property.  He stated fundamentally the applicant’s project is too large considering environmental attributes of the property; the applicants wants to put a 10-pound project on a five-pound site; and there is also a concern that post-construction drainage would swamp the surrounding neighborhood.  He stated he requests the zoning change be denied because the intensity of use is out of character with the surrounding community.

 

Susan Frank stated she lives four doors down from the subject property; she has lived in the Lake Poinsett area for 21 years; and she is representing herself and the other Lake Poinsett area homeowners who oppose the rezoning request, including the six households located immediately to the south, which the hotel would be looking down upon.  She stated when moving to the area everyone knew the property was zoned for light commercial; it was thought that the worse case scenario would be someone building a convenience store; and never did anyone think someone would step forward and ask for a change in zoning in order to build a multi-story hotel.  She noted in 2005 Planning and Zoning and the Board of County Commissioners overwhelmingly denied the same request citing the density was inappropriate to the area, and that remains true today.  She stated in 2005, when Ryan Rusnak was employed by Planning and Zoning, he brought to their attention that the subject property was .53 mile from I-95 and therefore did not meet the legal requirement for tourist facilities to be within a half-mile of the Interstate; the Board may question how the property was able to move in the previous two years; the applicants have a survey where measurements were taken in such a way to support this contention and to take advantage of a large bubble in the I-95 right-of-way at this particular interchange.  She advised whether the east corner of the property is .5 or .53 mile from I-95, the spirit of the requirement is that the density should decrease when moving away from I-95; the Board has some aerial views in its packets, which show that very little density occurs along S.R. 520 west of I-95; and there are a couple of convenience stores, an RV dealership, fireworks store and some woods.  She stated if a Zoning Variance were to be granted  the  density  will be 50-units per-acre  among  properties  that are zoned BU-1, AU, and even SR; she does not think that makes sense and making an exception would open the doors for similar development throughout the County.  She noted one of the biggest concerns expressed by the community is the traffic hazards which would be created by the proposed hotel; tourists exiting I-95 driving west on S.R. 520 will have to drive far past the property and execute a U-turn to drive back to the proposed hotel; and FDOT has firmly declined to allow additional median cuts.  She stated although the applicant indicates there will be no access from Lake Poinsett a number of tourists will assume there is access and they will turn left onto Lake Poinsett Road only to find a wall preventing them from entering the property; and at that time they will have to turn around, probably in the driveway of the first resident to the south, and then cross four lanes of eastbound traffic so they can turn left, drive down the road, execute the U-turn, and finally arrive back at their destination.  She stated since the improvement of S.R. 520, this intersection is now eight lanes wide, with two lanes going in each direction and two turning lanes on each side; and the traffic has increased considerably.  She stated since the proposed hotel is not supposed to have a restaurant, guests will have to leave the property to eat meals, shop, and so forth, which puts hundreds of potential U-turns into the area every day; and if guests are heading to Orlando, they would also have to cross four lanes of eastbound traffic in a very short distance to negotiate a U-turn to head west on S.R. 520.  She stated area residents are very concerned about the crime that hotels attract; the Brevard County Sheriff’s Department is very familiar with the neighboring hotel properties and has to patrol them on a daily basis; during the period of October 1, 2006 through September 30, 2007 there were 746 visits; the calls included assault and battery, narcotics, gambling, prostitution, robbery, burglary, fire, and civil disputes.  She stated there is a consensus among the community that the proposed zoning change would create noise and air pollution in the area 24 hours a day, seven days a week; and an inappropriate level of lighting would be occurring overnight, a loss of privacy as the multi-story design gives tourists the ability to see into homes and yards, and decrease of property values as a result.  She stated she has a petition with several signatures opposing the zoning request; and the community would also like to ask the Board how it feels about the fact that the applicants are being represented by an agent, Ryan Rusnak, who was actually employed by Planning and Zoning when the same request was presented in 2005, and who may have access to privileged information.  She requested the Board deny the proposed zoning change.

 

Louise Christiansen stated she is in favor of the zoning request; Florida depends a lot on tourism; and in order to attract tourism there needs to be nice, high-end hotels.  She stated the proposed hotel is going to have all of its access from the inside; there will not be pharmaceutical problems that other hotels have; the hotel will bring jobs into the community that are needed; and the hotel will attract tourists to the Cocoa Expo, Cocoa Village, and Cocoa Beach.  She stated Cocoa needs something that can compete with the Wickham Road area; and she would ask that the Board approve the request.

 

Ruth Cziraky stated when she was approached to sign a petition concerning the change request the topic came up of extra traffic, which has been thoroughly addressed; but unless the hotel guests are seeking homes for sale on Lake Poinsett Road and beyond, looking to take airboat rides, or looking for the Lake Poinsett Lodge and Marina, there would be no real reason for heavy traffic to pass the present homeowners; and with the slow real estate market, it would not be  in the  best interest  of the dissenting homeowners  to  limit  traffic covering these points.  She stated at a previous meeting a complaint was voiced about the possibility of hotel guests looking down into the yards and homes of the present landowners; and that too, is addressed very well by the applicant.  She stated the appropriate authorities make many visits to all building sites and the inspections are thorough and clearly innumerated for correction; and from past experience, these professional men know what it takes to establish good relationships in order that their work might meet Code and be accepted.  She stated another important issue is the obstruction of opening the needed workforce to complete the entire project; the slow economy would be positively affected by additional jobs, not only in the hotel but by adding suppliers who would welcome additional business; and everyone loves progress, but nobody likes change.  She stated the applicants and representatives are no strangers to creativity, accountability, and integrity; those not in favor of the proposed hotel need to ask themselves what is the honest and real issue behind their decision; and inquired if it is to help the community and future businesses, or is one motivated by personal desires.  She requested the Board approve the request.

 

Paul Acson stated he is speaking on behalf the owners of the subject property; he has owned property in Brevard County since 1961; most of the changes he has seen have been good for the community; he knows Mr. Gautam very well and has known him for 10 years; and he is relying heavily on Mr. Gautam’s integrity to put together a property the community will be very proud of.  He stated he has been in the hospitality business for many years; he has owned three restaurants and several hotels; the property’s configuration maintains security; and the outside type of hotels do not maintain security very well.  He stated he supports the building of the hotel; he supports the zoning change; and it will be a proud structure for the community.  He commented on the parking being in front of the hotel; and stated being hospitality oriented, he applauds the design of the proposed hotel by the applicants.

 

Maureen Rupe stated she is the President for the Partnership for Sustainable Future, which is a coalition of 17 environmental groups and community based groups in Brevard County.  She stated the group is very concerned with the current site plan for the subject property; and even with the generous Binding Development Plan, and the number of issues there are for this type of development, it is hard to believe the developer/owner could realize a positive return on investment with all the modifications it may need.  She stated the survey of the property shows 28 trees with a DBH of at least 14 inches, mostly oak, but some maple also; one oak has a 48 inch DBH; and those trees are distributed fairly evenly across the property.  She stated the oak hammock on the property is a specimen tree; and by definition, in the Tree Protection Ordinance, a specimen tree means, “A group of trees considered and important community asset due to the unique or no worthy characteristic of values.  A tree or group of trees may be considered a specimen tree based on its size, age, rarity, or special historical significance.  Specimen trees include large hardwoods, oaks, maples, et cetera.”  She stated based on the definition, it can be easily distinguished that possibly all 28 trees are part of a specimen tree; and with the conceptual site layout there is not enough unpaved area on the property to mitigate the number of trees within specimen tree without doing great harm to the trees.  She stated secondly, there are a number of gopher tortoises on the property, particularly where the current conceptual site layout shows the south retention pond; other protected or endangered species may be onsite; there are wetlands on the western boundary of the lot; and the western retention pond on the layout is in close proximity to the wetlands and would probably cause them to drain.  She advised in the requested zoning classification there are no wetland impacts allowed; and there must be a sufficient buffer in between wetlands to ensure their protection.  She stated a 20-foot vegetative buffer is required between the development and the properties to the south; in the site layout, at least half of the 20-foot vegetative buffer is covered by a retention pond; and based on the number of concerns on a piece of property of this ecological significance and the incompatibility of the surrounding neighborhood, the Partnership for Sustainable Future requests the Board deny the request.

 

Daniel Cziraky stated he is in favor of the TU-2 change request; he has know Mr. Gautam for three years; and he respects the work he and Mr. Ranshi does with other hotels.  He stated he would rather have a hotel such as what is being proposed, as opposed to a 7-Eleven; and the area needs a hotel like the one being proposed.  He showed the Board pictures of the lot and stated he hopes the Board approves the request.

 

Annette Shuntich stated she lives on Fenner Road, which is approximately one mile from the site of the proposed hotel; she is a mother and resident of the area; and she is strongly in favor of the development.  She stated Cocoa is starving for new development and innovative ways to enhance the gateway to Brevard County; and S.R. 520 is that gateway.  She stated in the current economic environment with foreclosures, mortgage companies closing the doors, and investors shying away from putting money into creating necessary changes that Cocoa needs to revitalize itself; now there is an investor that is willing to bend over backwards to put buffers and retention areas in critical areas to reduce the impact of noise and the surrounding air pollution for the surrounding residents; and the area needs someone to make a difference and take Brevard County to the next level.  She stated the hotel will provide essential accommodations to young people and their families that travel from other states to participate in volleyball, soccer, baseball, and different types of football tournaments that go on at the Cocoa Expo.  She stated when there are young teenage girls coming into an unknown area, external access hotels are not acceptable; she would not want her teenage daughter walking outside to get to her room; and when looking at the safety of the young people, the proposed hotel provides a necessary preventative, and even crucial, structure to prevent crimes against young people.  She stated having an internal access hotel greatly reduces, if not eliminates, that risk; Viera has an inviting feel; it has hotels and restaurants all over the area; S.R. 520 will not remain barren forever; and as it changes, why not encourage developers to put their money into providing jobs for the residents and provide an environment that will help local students and young people to have a place that is safe for them to participate and stay in.  She advised she hopes the Board votes in favor of the proposed development.

 

Dennis Chambers stated he recently built a new home approximately three-quarters of a mile from the site; the site is across the street from the fair; there are 40-foot ferris wheels, bands, and everything imaginable that is a traffic nightmare; and the area needs quality commercial properties built on S.R. 520, as it is the worst eyesore in Brevard County.  He stated if anyone has company come to visit that want to stay in a hotel in Cocoa, it is a horrible experience; there is a lot of crime; but those hotels will go out of business and close up if some new hotels are allowed to be built that are classy  hotels that will meet the new Codes.  He  stated S.R. 520 is a commercial corridor; it has been four-laned all the way to Orlando; and hopefully there will be some new restaurants built in Cocoa.  He stated the City of Cocoa needs a facelift and this request is a start to join the 21^st century; unfortunately, it is going to happen in peoples’ backyards; but he has been in Cocoa since 1989 and the fair has also been here for that long; and it has to be anticipated that the Cocoa Expo, which is one of the largest sites in Brevard County that is commercially going to be developed, it has to considered that that is going to happen.  He urged the Board to vote in favor of the request.

 

Dennis Solis stated he has lived at the end of Lake Poinsett Road for five years; it is an oasis from the rest of Cocoa; it is a quiet community on the lake; and it is very protected and different from the rest of Cocoa.  He stated when he thinks about having a hotel at the street entrance it brings to mind a lot of concerns; the applicants say they are going to follow the rules, but they change the rules before the deal is done; and it does not comfort him that they are going to follow the rules after the deal is approved.  He stated he has traveled for business for the last 20 years and he has been all over the world; he has yet to find a high-end hotel that will let him have a room for $100.00; and he is curious as to which high-end hotel is planned to go there that will have those types of room rates.  He inquired what would happen to the Board and said he wanted to put a business in the backyards of the Commissioners where suspicious activity is only one-third of what it would be at an exterior access hotel; and commented on prostitution and gambling at an exterior access hotel.  He stated he would ask that the Board deny the request.

 

Gordon Christiansen stated he is a retired law enforcement officer of over 30 years; he is in strong favor of the proposed hotel; being a high-end hotel, the patron and guests the hotel would draw would be the type of guests that are traveling through the area and want a quiet evening to sleep before continuing on with their trip through the area; and it will also draw the professional types so it will help bring in new revenue and new business that is much needed in the area.  He stated with the hotel having only internal access to the rooms, it means there will not be all of the in and out from room to vehicles; being a high-end internal access hotel will not attract patrons who just want a room for a couple of hours for entertainment; and it will not attract the patrons that a motel would attract for illicit drug trafficking, because the drug traffickers will not want to go in and out through the lobby.  He stated at the Planning and Zoning meeting it was mentioned that the hotel will bring in more vehicular traffic; but a convenience store, such as a 7-Eleven store, would bring in more traffic than this hotel would; and a convenience store draws all types of patrons onto its premises, including individuals that most businesses do not prefer to have on their properties.  He stated he is in strong favor of the hotel for those reasons and also because the area needs this type of hotel.

 

Edward Lehnert stated he has lived in Florida for over 40 years; in his 40 years in Florida he has seen various Boards make exceptions to rules upon rules about protecting certain aspect of quality of Florida.  He advised as an occupation he drives the 48 states commercially; he has seen and observed many accidents all over the country and in Florida; and the applicants are creating a traffic pattern that would create 400 or 500 or more U-turns a day at Lake Poinsett Road and the crossover west of Lake Poinsett Road.  He stated there are many accidents at U-turns where  people are broadsided;  and he has witnessed many of them, but he has been able to avoid most of them.  He stated from a standpoint of safety the rezoning request should be denied because it is creating an unsafe traffic pattern on S.R. 520, which is gaining more traffic everyday.

 

Cliff Repperger stated he has submitted the traffic report that indicates there is not a problem with S.R. 520 and the traffic patterns based on the proposed access and ingress/egress on the property; the applicant gave the concession of not giving access off of Lake Poinsett to appease the residents that did not want traffic on Lake Poinsett; unfortunately now, he is having to deal with the fact that the applicant was willing to give up a concession of not having access off of Lake Poinsett, which with a BU-1 use could be had currently; but now that is coming back to haunt them from the residents’ side because they are saying by limiting that access the applicant is creating an unsafe traffic pattern; and it is not true.  He stated if the residents were agreeable with opening up access on Lake Poinsett Road, the applicant would be willing to adjust the BDP and site plan to include access off of Lake Poinsett Road.  He stated he does not know what rules are being bent; they are completely compliant and within Code; and the applicant is not asking to deviate from any rules.  He noted the retention area that was mentioned is consistent with Code as far as being located within setback; there will be appropriate landscaping in the setback; and will meet all of Natural Resources’ requirements regarding tree preservation and replacement.  He advised the development will completely stay away from the wetland area, and will conserve the wetland area, which is consistent with Code.  He stated there were comments about youths using the Expo, which is the point of the hotel; the reason why the applicant is there is because there are not enough hotels in the area that can support and be available to families and people using the Expo; and the hotels in the area are not sufficient.  He stated the parking is located adjacent to S.R. 520; it’s been taken completely away from the south end of the property to avoid that issue, which was expressed to him by the residents at the Planning and Zoning meeting.  He advised there has been no substantial competent evidence from any expert regarding what the drainage on the property will be; the applicant will have to meet all of the performance standards in the Code; and all of the drainage will be kept on site.  He noted the Board heard some testimony about the property looking down on the residents; the Board can see that the front location of the hotel prevents the opportunity for anyone to look down on a substantial number of properties at all; there is only one potential property to the south that is even remotely affected by the hotel; and that property’s home is located significantly to the west of the subject parcel.  He stated someone mentioned a right-of-way bubble; and there is no bubble at the interchange that does not exist at any other I-95 interchange, and the applicant is simply operating within Code.  He stated the applicant is limiting density to 80 rooms; and that has been done to address concerns of the residents.  He stated there is no evidence whatsoever that there is any less crime associated with any commercial  facility,  such  as  a  7-Eleven  than  there  would  be  with a hotel; and the numbers support the fact that the crimes are significantly lower in any of the significant type of crime areas with regard to the internal hotels and external hotels.  He stated the applicant has done a substantial amount of work to try to develop a plan that works with the residents and do whatever can be done to make the site something that works for the neighborhood and also works for the community as well; and the applicant will do whatever is necessary from this point forward to change that to the extent that if there are any suggestions the Board may have based on what it heard tonight that it would like to include in the site plan. 

 

Commissioner Voltz stated Doug Sphar brought up earlier the possibility of rather than a $100.00 per night room, a 400-square-foot hotel room; and she is not sure what that means. Cliff Repperger stated he does not know that he or the applicant has evaluated that suggestion; he does not know what the size of the rooms are; but it is certainly something that can be looked at. 

 

Commissioner Bolin stated in regards to the total crime activity, Mr. Repperger has stated if the hotel has an interior entrance, the crime activity is less; with Mr. Repperger replying in most of the substantial categories that he broke out that he thinks the residents should be concerned about, the numbers show that interior access hotels seem to be lower than the external access hotels.  Commissioner Bolin stated she was just looking at the total activity; she sees that an exterior entrance was the highest; and the second highest and the third highest were both interior entrances.  Mr. Repperger inquired what Commissioner Bolin was looking at; with Commissioner Bolin responding she is looking at the total activity at the top of the page; in looking at the total activity, the exterior was first, and out of the rest the second and third were both interior entrance hotels.  Mr. Repperger inquired if that was in terms of the total activity numbers; with Commissioner Bolin responding affirmatively.  Mr. Repperger stated the Board has to really look at the numbers and digest them.  Commissioner Bolin stated when she looks at robberies, first was an exterior hotel, but the second highest was an interior hotel; and she is confused on Mr. Repperger’s argument that it is better to have an interior hotel versus an exterior hotel.  Mr. Repperger stated he is looking at the total number of calls based on the report overall; and he is looking at it as a total spectrum.  Commissioner Bolin noted 194 was the second highest; 165 was the next highest; and then it went to the other exteriors.  Mr. Repperger stated it is a sampling; statistically it could be argued all day long; but he thinks the point is that there are less crimes; and in the area there are hotels that are 30 years old.  Commissioner Bolin inquired if the Holiday Inn Express is the one that is second highest with police calls and also the newest hotel; with Mr. Repperger replying the Holiday Inn Express is a newer property, that is correct.  Commissioner Bolin stated the first and second highest number of calls is from an older hotel and a newer hotel.  Mr. Repperger stated there is a significantly reduced number if looking at call volume; there are 20 calls on an external hotel versus nine with the interior hotel.  Commissioner Bolin stated it is still the second highest out of all Mr. Repperger gave her to look at.  Mr. Repperger noted that is one category the Board is looking at; the residents presented some arguments at the Planning and Zoning meeting, and that is why the report was generated the way it was; and he is trying to give meaning to the numbers and explain that it is not all that it is cracked up to be; and just because there is a huge stack of calls does not mean that  what is being proposed  is consistent with crime.  Commissioner Bolin stated she is looking at the information Mr. Repperger gave her tonight; and she does not know if it is making Mr. Repperger’s case.

 

Commissioner Voltz stated the Holiday Inn Express had 194 calls; 77 of the calls were just patrols; and 19 of the calls were hang ups.  She stated that covers a great deal of the calls in general versus the Best Western, which had 131 patrols; and inquired if the Best Western needed more patrols than the other hotel.  She stated the Imperial Hotel had a lot of hang ups; the telephone calls and patrols seem to be the  highest of just about all the categories the Board

is looking at; and when looking at the numbers, those two categories are probably the make-up of all of them.

 

Commissioner Bolin inquired if the Board has heard from the Tourism Development Council on any type of information on if there is a need for more hotels in the area; with Mr. Repperger responding he would be happy to look into that; but what the Board does have is a letter from Giles Malone, who is the Manager of the Cocoa Expo, saying that hotels are needed in the area based on the use of the Cocoa Expo. 

 

Commissioner Scarborough stated it was his understanding the last time the request was before the Board that the proposed hotel has to be within a certain distance from I-95 or the Board cannot consider it.  Mr. Enos replied yes, that is correct.  Commissioner Scarborough stated he and Mr. Repperger met with the residents; there was a list of items that were covered at the meeting; and inquired if Mr. Repperger had the list with him; with Mr. Repperger responding the items on the list were all of the things that are included in the Binding Development Plan.  Commissioner Scarborough stated he will mention some of the issues he heard at the meeting.  He advised there is a survey, and inquired if staff has reviewed the survey; there have been two transportation documents, one from the residents and one from Kimley Horne; he has not had a chance to the read the document from Kimley Horne and he does not know if the residents are traffic experts; but it is something the Board can look at.  He stated he recalls the issue of the interior entrance; and inquired if guests would have to go back into the Lobby in order to come and go from the hotel; with Mr. Repperger responding affirmatively, there are no balconies; and whether or not there is an access door that is not within the lobby, he cannot tell the Board.  Commissioner Scarborough stated the Board has a BDP and a site plan; and inquired if the site plan is an attachment to the BDP; with Mr. Repperger responding affirmatively.  Commissioner Scarborough inquired if the site plan will become part of the recorded BDP; with Mr. Repperger responding affirmatively.  Commissioner Scarborough commented on the price of the rooms in the proposed hotel being $100.00 per night and inflation.  Commissioner Scarborough stated the Board has the capacity to discuss the room size because that is something the Board can control; and the question is how to define a quality unit.  He stated he does not want to limit the transfer of interest; and to say it has to be national brand hotel, to him, limits the transfer of interest, financing and the capacity to ultimately sell the property, limiting the value. 

 

Commissioner Nelson stated in the TU-2 zoning, the maximum lot coverage is 40 percent; and inquired if that means all impervious surfaces; with Mr. Enos responding it is just the structures.  Commissioner Scarborough stated there was some confusion in the discussion between the concept of setback and buffer.  Mr. Enos stated the term buffer means different things to different people; there was some discussion at previous meetings as to what that exactly meant in this context; whether or not specifically a parking lot would be part of that; and in response to that the applicant has stated that there will be no structures or parking lots within the 80 feet.  He noted the only potential improvement the applicant is proposing in the Binding Development Plan is the retention pond; and only vegetation and/or retention, and a wall would be in the 80 feet. 

 

Commissioner Nelson stated the County Ordinance is doing what it is supposed to do; it has been keeping the hotels in the proximity of interchanges and the Interstate; and this property is right on the edge, leaping out into residential.  He stated he is struggling with that because the applicant is winning on a technicality; the survey has a notch in it that gives the applicant the extra distance closer that is needed; and that is probably something the Board needs to address as a change to the Ordinance.  Commissioner Scarborough stated if the Board wants to deny the request, he can support it; but if the Board wants approve it, he needs to meet with the applicant and the residents further.  Mr. Repperger stated his client does not have a problem meeting with the residents and Commissioner Scarborough to address concerns he feels need to be readdressed. 

 

Motion by Commissioner Bolin, seconded by Commissioner Voltz, to table Item VI.A.2. to the December 6, 2007 meeting because she has several questions she would like answers to; and the crime statements are an issue she would like to look at further.

 

 

Commissioner Scarborough stated he has some questions on the survey because it is black and white; and if the Board can consider it, can it have the County’s surveying staff verify within that period of time.  He inquired if Transportation is going to be able to study the two transportation reports; it is more than tabling so he can meet with the residents; the Board has a technical staff that can assist it greatly in knowing what is here; and inquired if it can be done in a month.  County Manager Peggy Busacca stated she cannot make any promises for the survey staff this evening, as she has not discussed this with them and she does not know if they are in the middle of another large road project.  She stated the Board does not have a January 2008 Zoning meeting; but it can be tabled to a Regular meeting.  Commissioner Scarborough stated he prefers not to have zoning items on Regular meeting agendas unless it is absolutely necessary.  Mr. Repperger stated his client would be agreeable to the item being tabled to February 2008.  Commissioner Scarborough stated he would feel more comfortable with that. 

 

Commissioner Nelson stated one of the things he is struggling with is that it is an extremely aggressive use of the site; it uses every square inch for a purpose; and he is struggling with the fact that the analogy was made that it is 10 pound of stuff on a four pound site.  He stated that needs to be looked at; there will be a 10-foot wall that is 10 or 15 feet away from someone’s house; and he does not think the Codes ever envisioned a hotel next to single-family.  Mr. Repperger stated BU-1 is on the property now, where a structure could have a 22-foot setback without the significant 80-foot buffering, and wall and landscaping that the applicant is proposing. Commissioner Nelson stated he understands and he thinks the citizens are aware of that; but he has some concerns about how extensively the site gets utilized under that setting.

 

Motion by Commissioner Bolin, seconded by Commissioner Voltz, to table Item VI.A.2. to the February 7, 2008 meeting.  Motion carried and ordered unanimously.

Item VI.A.3. (Z0708403) Ronald D. and Norma D. Levy and Casabella Development, LLC’s request for a Small Scale Plan Amendment (07S.15) to change the Future Land Use designation from Neighborhood Commercial to Community Commercial, and a change from BU-1-A and RU-1-11 to BU-1 on 6.35 acres, located west of Wickham Road, north of Casabella Place, which was recommended for denial by the Local Planning Agency and the Planning and Zoning Board.

 

Ron Levy stated he is the applicant and he is representing himself.  He advised he is a local physician and he also does development work; and Casabella is a subdivision that was developed behind commercial property.  He stated the main purpose of the zoning request is an issue regarding a building on the property; he is trying to have a 25-foot setback; but currently there is a 50-foot setback requirement on BU-1-A.  He stated although the buildings in the area could be a gas station or other unfathomable uses, he is building upscale commercial buildings and he would like to continue to do that on the subject property.  He noted he let the item go to the Planning and Zoning Board without talking to the homeowners; as a result, there was a denial at the Planning and Zoning meeting; and he thinks the reason for that is the homeowners were concerned about gas stations being in the area.  He advised since that time, he has met with the homeowners and has developed a Binding Development Plan; in the BDP he has outlawed the terrible things that might be allowed, such as gas stations and bowling alleys; and the Board should have a copy of the BDP.  He stated he is trying to make a very upscale professional office complex in the front of the property; the reason he is doing that is that it is fitting with the subdivision in the back; and he brought along some slides that explain what he wants to do.  He advised of a building that is already built; he is putting it close to Wickham Road in an attempt to have good visibility; and he is also looking to have the trees in the back preserved, as there are a lot of oak trees on the site and he is making every effort to same them.  He stated to the north of the first building is where he is proposing the next building; and he needs the 25-foot setback so he can fit it in between a preserved wetland to the back.  He showed the Board another building near the entrance to Casabella where the trees near the entrance were saved to the left of the building; the trees in front of the building were also saved; there is reduced noise in the parking lot; and there is an elevation change in the front and he built a retaining wall to save the tree.  He advised during the duration of the project he has worked closely with the homeowners to try to get everything they want; the development was intended for another location, but there is no ability to put a light at the location; when he bought the piece to the right, he feels he can get a light put in due to the proximity of the Post Office and Petty’s Meat Market; and what he has offered the homeowners is a new entrance into the subdivision and offered additional green space to a very nice amenity package.  He stated when he first started the project there was no amenity other than an outdoor gazebo; after talking to the homeowners, and because he was doing well with the project, he elected to give them a nice amenity package.  Dr. Levy commented on the amenities to the Board and showed the Board pictures.  He stated he left a few items in the BDP in the BU-1 zoning that he would like to possibly do in the future, none of which he would care to do; he would like to continue to build professional office buildings on the new piece; but he does not know what the future is; and currently he has five buildings going up on the other side, none of which are rented, but it is basically to protect him for the future.  He stated in recent weeks he learned to be a politician and  went  out  door-to-door and talked to  people about  the project;  as  he did that he got a lot more support; he has a vote he has put together that shows there are now 31 homeowners in favor of the project and 15 against; there are a number of people who converted; and he feels it is a good project and he wants to give the homeowners a second entrance with more green space. 

 

Robert Lee stated he is with Lee Engineering and is the engineer on the project; in the staff report there was a section regarding the traffic impacts with the analysis of the BU-1 versus BU-1-A, which is the current zoning; and it was 500 extra trips for the BU-1 zoning.  He stated if the Board has a problem with the extra 500 trips, he and Dr. Levy would be willing to add that to the BDP also; and that would limit the project by 500 trips. 

 

Jonathan Kennedy stated he has lived in the Casabella subdivision for three years; he supports the rezoning request, along with the BDP; originally, he was opposed to the rezoning because of the broad use allowance of the BU-1 versus BU-1-A; and subsequent to that, the developers reviewed the property plan with him and other residents.  He stated the plan Dr. Levy and Mr. Lee has laid out give the residents some key things that will make it a decent plan; it gives a second entrance to the community, which will balance out the traffic; and a traffic signal will be required near the Post Office and Petty’s Meat Market.

 

Commissioner Scarborough stated a traffic signal on Wickham is not an issue for a developer, but there was to be a warrant to put in a traffic signal; and inquired if Mr. Lee could address the issue.  Mr. Lee stated he has stated to the homeowners that he and Dr. Levy would pursue a traffic light at that intersection.  Commissioner Scarborough inquired if the County’s Transportation Department has been involved in the discussion; with Mr. Lee responding affirmatively.  Mr. Lee stated the Transportation Department has told him several times that the intersection meets the geometric spacing criteria and is a good applicant for a traffic light in that area.  Commissioner Scarborough stated it is not easy to get a traffic light approved.  Mr. Lee noted he would have to follow a warrant study and the developer will do that.

 

Jonathan Kennedy stated that was made clear to him; and he understands it is not a guarantee.  He stated the project gives the Casabella residents more certainty of what will eventually get built on the site; and having Dr. Levy developing the north side with the BDP insures his plan will work as he wants and it helps the viability of his project, which in turn means he will not turn it over to somebody else who will turn it into a strip mall to match the rest of Wickham Road.  He stated he thinks the project provides a good compromise between the residents of Casabella and the developer. 

 

Gregory Au stated he is part of the Casabella development.  He stated it is interesting the developer has asked for the homeowners’ support; it is also interesting to note there was never a property homeowners meeting; the quorum was never solicited, nor was a vote ever taken; and it is interesting that Dr. Levy now says he has the majority of the vote.  He stated straw polls are informal polls; he and some other residents are very much against the request; he is suspect of some of the data that Dr. Levy has cited for the Board; and it is also interesting that the   developer  and  his  spouse  have  two of the   three  seats  on  the Board.   He  stated  the homeowners meetings do not really have a spirit of openness and honesty; part of that is illustrated in that 13 items that were requested regarding the BDP were not answered until Monday night, and then they were partially answered. 

 

Commissioner Scarborough inquired when Mr. Au received the BDP; with Mr. Au responding he received it approximately two weeks ago.  Mr. Au stated there are still some draft items in the BDP; he has not seen the final draft; and he has a lot of questions about the BDP responses from Dr. Levy, some of which were written in broken English.  He stated he is concerned because the BDP, while more restrictive than the BU-1, does not go far enough; restaurants are still allowed, all night print shops, and coin laundries to be built there; and Casabella is a community with a lot of young families and he is concerned about some of the security measures, including a walled and gated community will not be put in place.  He advised some of the residents are concerned; Dr. Levy showed some amenities that have taken a long time to develop and the residents are concerned that even though Dr. Levy has some promises in the BDP, he has typically not lived up to the time commitments that he has made.  He stated in his view the zoning change is not in keeping with the original representations made by the developer; it is meant for professional-only buildings that complement a gated community; and he is asking for the Board to reaffirm the decision of the Planning and Zoning Board and deny the zoning request.

 

Mike Richards stated it is his understanding that the zoning request would allow for an expansion of the type of businesses that would be permitted on the property; and he is definitely against an expansion of the businesses that could be put on the property.  He advised the residents have been led all along to believe there would be professional office buildings; now that list is growing into things that are unacceptable; and he is opposed to any BDP, as are most of his neighbors.  He stated he challenges the developers’ numbers he gave out for support; there has never been an official homeowners meeting; there have been straw polls taken at various times; and the first poll was 55 to 10 against the zoning change.  He advised he also challenges some of the developer’s slides; he has lived there since November 2003, and the clubhouse is still not finished; the gate has only been finished in the last year; and now the developer is proposing another street and a second gate.  He stated a lot of his neighbors are wondering how long it will take to put up the second gate, so the community will remain a gated community.  He stated there is a noise factor if Dr. Levy puts in something that is open until 10:00 or 11:00 p.m.; he is on the south side of Casabella and closest to the proposed property; and the traffic that will come along with the development will cause a devaluation of his property.

 

Dr. Levy stated when the Planning and Zoning Board denied his request, he went to the homeowners and called an emergency meeting; at that meeting he proposed a BDP; he listened to the comments of the homeowners; and then he met with leadership and formed a BDP based on what they wanted.  He stated after that, he bowed out and let the homeowners figure out what they wanted;  there was  another homeowners meeting a few weeks ago; and he has an email that states there were 14 votes in favor of the BDP as written, and 12 against.  He stated he does not know about the vote  Mr. Au mentioned; after that meeting, there were some other suggestions given to him by the leadership that the residents wanted to put into the BDP; he incorporated those excluding the list of 13; and he will address those momentarily.

 

Commissioner Scarborough stated one of the things he dislikes is not to have information to provide to people in a timely manner; and he does not feel it is fair to the process to now get into the plan because Mr. Au has not reviewed it.  Dr. Levy stated the residents have had the BDP for two weeks; the last meeting was to get more input on what other changes they wanted made; and the item was tabled from last month to give the residents a month to review the BDP.  Commissioner Scarborough inquired if Dr. Levy has not made any changes since he gave the residents the BDP; with Dr. Levy replying the only things that changes have been made in the last few weeks were ones the residents came up with at a meeting two weeks ago; the BDP was mailed out and residents were asked to vote in favor or not in favor; and that is the vote he quoted earlier. 

 

Commissioner Bolin stated Mr. Enos spoke to her earlier about the responses; and inquired after Dr. Levy made the adjustments there were a new batch of people sending in emails of in favor or against.  Mr. Enos stated the Planning and Zoning Office received several responses on or after October 17, 2007 from residents.  Commissioner Bolin inquired why that date is significant; with Mr. Enos responding that happened after the Planning and Zoning Board date and within the last couple of weeks; staff started receiving the emails on and after October 17, 2007; and staff received a total of 32 in favor and three against, on or after October 17, 2007.  Dr. Levy noted there were some initial ones from before that were against; and that is how he came up with the vote of 31 to 15.  He stated with regard to the 13 items on the BDP, there were some things he could not agree to; there were requests for speed humps in the subdivision and furniture in the clubhouse; and those were things that were not allowed. 

 

Commissioner Bolin stated inquired if Dr. Levy was having a problem with his dual role in the community and looking at just this issue of the development of his professional buildings.  She stated the issue of the gate to the development is not pertinent to the zoning change request; whether or not there is furniture in the clubhouse is not pertinent to the request; and she is trying to separate them out.  Dr. Levy stated those were the kinds of things that were being requested of him.  Commissioner Bolin stated she like the way the development is laid out; she likes the idea that her vision from Wickham Road is going to be a positive one; and Dr. Levy is putting the parking on the inside.  Dr. Levy stated that is correct; and expects this development to be one of the nicest professional developments in the County.  He stated the second entrance to the development does not have to be done; he is doing it because he owns the property and 29 unsold lots in the back and is going to build another 25; and he designed it because it is important for him to sell lots in the back, and also because it is the right thing to do.  Commissioner Bolin stated the biggest concern she has heard is that Dr. Levy is going to build an Assisted Living Facility and inquired if that is still the plan; with Dr. Levy replying yes, it is on the plan; if for some reason he cannot rent the buildings out he considers that potential use that could be good; and there was one person in the group who was against it, and that is how it was taken off the initial  list.  Commissioner Bolin  stated a  lot of things that were eliminated from the list were automotive related; and that was another concern she heard from the residents.  Commissioner Bolin stated she feels comfortable with the request. 

 

Motion by Commissioner Bolin, seconded by Commissioner Voltz, to approve item VI.A.3.

 

 

Commissioner Voltz stated she thinks the issues have been addressed and she understands the Board is not always going to make everybody happy.

 

Commissioner Bolin stated Dr. Levy mentioned putting a 500 trip reduction in the BDP; and she would like that added to the BDP.  She inquired if the warrant comes back that the traffic light is feasible, is Dr. Levy going to buy it; with Dr. Levy responding he would be glad to do that.

 

Commissioner Nelson stated at the beginning of the discussion, Dr. Levy mentioned the reason for his request is because of the 50-foot setback requirement in BU-1-A; with Dr. Levy responding that is one of the main reasons for the request; and the first building has a 25-foot setback and he would like to do the same thing to the other building.  Commissioner Nelson inquired why do the other requests if Dr. Levy can just go to the Board and request the 25-foot setback be approved.  Dr. Levy replied it is his understanding that it is extremely difficult to get a variance.  Commissioner Nelson inquired if Dr. Levy request the property be changed to BU-1-A two years ago; with Dr. Levy responding yes, and it should have been rezoned to BU-1 at that time.  He stated at that time the Comprehensive Plan said it should be BU-1-A; and it was easier to rezone it BU-1-A.  Commissioner Nelson inquired how many of the homes were occupied at the time he came in for that rezoning; with Dr. Levy responding quite a few were occupied, almost as many as there are now.  Commissioner Nelson stated Dr. Levy committed to the community years ago that he would do a certain thing; and now he is changing that request for what is a technical issue.  He stated Dr. Levy could get the 50 feet if he wanted to because he could move the building further back.  Dr. Levy stated there is a 24-inch oak tree and the building would have to be very small in order to protect the oak tree, or else he would have to lose a lot of parking.  Commissioner Nelson stated if Dr. Levy meant what he said, why does he not restrict himself to those uses in BU-1-A; with Dr. Levy responding when he first talked to people about it he did not have five buildings that were unrented; his views have changed a little bit; and he has left out a lot of things he would love to have on the property.  Commissioner Nelson stated by the same token, the community may not agree with Dr. Levy. 

 

Commissioner Voltz made a motion to call the question.

 

Commissioner Scarborough called for a second to motion to the call the question; and hearing none, the motion died.

 

Commissioner Scarborough advised he has some more questions and if a vote is called the Board can only push the vote if a majority of the people want it.  He advised he would like to hear from Mr. Richards and Mr. Au.  He inquired when Mr. Richards received a copy of the BDP the Board is looking at this evening.

 

Mr. Richards stated he does not recall the exact date; he has received copies of the BDP at various times and it keeps changing. 

 

Mr. Au stated he believes the BDP was mailed to homeowners the following meeting of the homeowners on October 16, 2007.  Commissioner Scarborough inquired if it is the same BDP the Board is considering this evening; with Mr. Au responding it is a draft BDP; and there was a series of requests that were not answered until October 31, 2007.  Commissioner Scarborough inquired if there were amendments to the draft; with Mr. Au replying there have been no amendments to the draft.  Mr. Au stated there are parenthesis on the draft stating things are being debated such as the Assisted Living Facility.

 

Commissioner Scarborough stated he does not like to vote on something that he does not know about and he does not like people to comment on things they do not know about.  He stated Mr. Au received the BDP two weeks ago and there was some discussion about making some changes; and those changes have not been reduced to writing.  Mr. Au stated those have not been incorporated into the BDP; if Dr. Levy really wanted to get input from the homeowners he should have been present at the information meeting, and he should have put it to a vote because that way there would have been a real vote for the record and he would have to say to the Board that he would support what the majority of the residents want if he were outvoted.  He stated Dr. Levy has cherry-picked those that he knew would approve his request and has made personal home visits to get those signatures; and he has not been visited by Dr. Levy.

 

Mr. Richards stated there were 19 homeowners who submitted recommendations to the Planning and Zoning Board and all 19 of them were opposed to the request. 

 

Commissioner Scarborough stated it appears Dr. Levy got a denial by the Planning and Zoning Board; since then he went out and politicked and made some changes; and his problem is if what has been submitted by Dr. Levy available for every member of the community to review and comment on, or is the Board voting on an unknown this evening.  Mr. Richards stated various forms of the BDP has been reviewed by the community; there are a number of his neighbors who do not want to see a BDP and have not supported it from the beginning; and they do not want to see the rezoning request go forward. 

 

Commissioner Nelson inquired if the neighbors are opposed to the BDP, or are they opposed to the content of the BDP; with Mr. Richards responding the neighbors are opposed to the BDP because they do not want the zoning changed; and therefore, a BDP would not be necessary.  Mr. Au stated he and some other residents have not seen the final copy of the BDP.  Commissioner Scarborough stated he has learned that the devil is in the details.  Mr. Au stated he would like to ask that Dr. Levy stand in front of the community versus sending his representatives in order to get a dialogue; and that has not occurred.  Commissioner Scarborough stated it appears Dr. Levy has made some effort since the Planning and Zoning meeting; but whether it has been fully communicated and fully understood, he is not sure.  Mr. Au stated there are still quite a few open questions. 

 

Commissioner Bolin stated her concern is if Dr. Levy was personally at the homeowners meeting; there is a problem because is Dr. Levy there representing this project, or is that meeting going to be him as the developer; and inquired if that is the problem.  Mr. Au replied part of the problem emanates from the composition of the Boards as set up in the homeowner rules; where Dr. Levy and his wife control two of the three voting seats and have used that to their advantage; and he thinks Dr. Levy wears multiple hats.  Commissioner Voltz stated in that type of homeowners association, that is how it always is in developments until a certain amount of lots have been sold.  Mr. Au stated he does not have a problem with that; but if there is going to be an open conversation and issues are going to be put to votes, he has no issue with the ownership; but some basic procedural things have not taken place; and inquired why not use the homeowners association to provide feedback to the developer and the Commissioners as decisions are made.

 

Commissioner Nelson stated in the past the Board has done split zoning, in which the front portion would be BU-1 and the back portion would be BU-1-A; and that may be a discussion the residents want to have with the developer; but it would also limit uses.  Mr. Au stated there are plenty of uses based on the original intent of the development.

 

Commissioner Scarborough stated the Board does not have three votes to pass the item; but the more conversation that is had, the better.  Dr. Levy stated during the past month he has made every effort to get a group together that can give a majority vote; but the homeowners have not been able to get together to get a majority vote.  Commissioner Scarborough stated he is not so concerned on whether the Board votes, but whether it is informed; and it appears Dr. Levy has made some progress and he would like to see more progress made so there can be an understanding of what is being proposed.  Dr. Levy stated he met with the homeowners at a meeting; then he met with the person in charge of the group; and he ultimately presented the homeowners with a BDP and asked them to vote on it. 

 

Commissioner Bolin stated the Board could look at a split zoning, or there could be another meeting initiated by her office in order to get the information out to everyone; and she would like to give a fair and unbiased meeting because she knows Dr. Levy is wearing two hats and it is hard to get the two problems separated; and inquired if Dr. Levy would entertain that idea.  Dr. Levy replied absolutely, he is in no rush to develop the subject parcel; he has nothing to hide and he is willing to work with whomever he can; and he feels he is at a point where there is significant support in the community. 

 

Commissioner Bolin withdrew her motion to approve Item VI.A.3..

 

Motion by Commissioner Bolin, seconded by Commissioner Voltz, to table Item VI.A.3. to December 6, 2007, with the understanding that Dr. Levy will work with her to have another meeting with all of the people who would be involved.  Motion carried and ordered unanimously.

 

 

 

 

Upon motion and vote, the meeting adjourned at 9:16 p.m.

 

 

ATTEST:                                                                     ___________________________________

                                                                                    JACKIE COLON, CHAIRPERSON

                                                                                    BOARD OF COUNTY COMMISSIONERS

                                                                                    BREVARD COUNTY, FLORIDA

_____________________

SCOTT ELLIS, CLERK

         

          (S E A L)