BOARD OF COUNTY COMMISSIONERS

SEMINOLE COUNTY, FLORIDA

MAY 10, 2011

The following is a non-verbatim transcript of the BOARD OF COUNTY COMMISSIONERS MEETING OF SEMINOLE COUNTY, FLORIDA, held at 9:31 a.m., on Tuesday, May 10, 2011, in Room 1028 of the SEMINOLE COUNTY SERVICES BUILDING at SANFORD, FLORIDA, the usual place of meeting of said Board.

Present:

Chairman Brenda Carey (District 5)

Vice Chairman Carlton Henley (District 4)

Commissioner Bob Dallari (District 1)

Commissioner John Horan (District 2)

Commissioner Dick Van Der Weide (District 3)

Clerk of Circuit Court Maryanne Morse

Acting County Manager Joe Forte

County Attorney Robert McMillan

Deputy Clerk Eva Roach

Pastor David Knox, Christ Episcopal Church, Longwood, gave the Invocation.

Commissioner Van Der Weide led the Pledge of Allegiance.

AWARDS AND PRESENTATIONS

A video was shown recognizing the accomplishments that the Seminole County Cultural Arts Council has done.

Commissioner Dallari introduced Steven Nelson, Seminole County Cultural Arts Council President, and stated Mr. Nelson and the Council’s Board have done a lot of work throughout the community in trying to support the arts and trying to find funds for same.

Motion by Commissioner Dallari, seconded by Commissioner Van Der Weide to adopt appropriate Resolution #2011-R-87, as shown on page _________, congratulating Barbara Ann Riggins for being selected as Seminole County’s “Artist of the Year 2011”.

Districts 1, 2, 3, 4 and 5 voted AYE.

The Resolution was presented to Barbara Riggins who addressed the Board to express her appreciation in recognizing her for the things that she enjoys the most.

-------

Motion by Commissioner Henley, seconded by Commissioner Dallari to adopt appropriate Resolution #2011-R-88, as shown on page _________, recognizing the week of May 7^th through May 15^th as “National Travel & Tourism Week”.

Districts 1, 2, 3, 4 and 5 voted AYE.

The Resolution was presented to Stewart Newmark, General Manager of the Westin in Lake Mary and Vice Chairman of the Seminole County Tourism Development Council, and Bruce Skwarlo, General Manager of the Orlando Marriott in Lake Mary. Stewart Newmark addressed the Board to express his appreciation on behalf of the Central Florida Hotel Lodging Association as well as the hoteliers throughout Seminole County. Mr. Newmark and Mr. Skwarlo presented the Board with pineapples.

-------

Motion by Commissioner Horan, seconded by Commissioner Dallari to adopt appropriate Resolution #2011-R-89, as shown on page _________, proclaiming the week of May 16^th through May 20^th as “Small Business Week” in Seminole County.

Districts 1, 2, 3, 4 and 5 voted AYE.

The Resolution was presented to Frank Hale, President and CEO of the Seminole County Chamber of Commerce, and Susan Carey, Chairperson for the Small Business Week Committee. Frank Hale addressed the Board to express his appreciation to Seminole County for supporting small businesses that are being operated by neighbors, friends and relatives throughout Seminole County. He stated Mr. Wayman Armstrong, 2010 U.S. Small Business Person of the Year, will be speaking at a breakfast next Thursday at the Hilton in Altamonte Springs and he would like the Board to join them.

COUNTY MANAGER’S CONSENT AGENDA

Joe Forte, Acting County Manager, addressed the Board to advise that Item #21, approve Resolution increasing speed limit on McCulloch Road, is a continued item and the resolution has an old date on it and that will be corrected. He stated Item #9, approve Corrected Restrictive Use Covenant for Holly Homes Townhomes, has been pulled from the agenda.

Motion by Commissioner Dallari, seconded by Commissioner Horan to authorize and approve the following:

Purchasing & Contracts Division

4. Approve SS-601134-11/BJC - Proprietary Source Procurement for the Seminole County Code Publishing with Municipal Code Corporation, Tallahassee, Florida.

5. Award CC-6460-11/DRR, as shown on page _________, SR 46 Reclaimed Water and Force Main, in the amount of $3,707,489.50 to Garney Companies, Inc., of Kissimmee, Florida; and authorize the Purchasing & Contracts Division to execute the Agreement.

Central Services

Fleet & Facilities Management Division

6. Approve and authorize Chairman to execute appropriate Resolution #2011-R-90, as shown on page ________, and County Deed, as shown on page _________, conveying Parcel #14-21-29-300-0010-0000 to be used by the City of Altamonte Springs for inclusion in the plat of Crane's Roost Park.

Community Services

Community Assistance Division

7. Approve and authorize the Chairman to execute the First Amendment, as shown on page __________, to the Seminole County/City of Sanford HUD/CDBG Subrecipient Agreement Program for Year 2009 - 2010.

8. Approve and authorize the Chairman to execute the County Deed, Restrictive Use Covenant, and appropriate Resolution #2011-R-91, as shown on page _________, to transfer ownership of 1705 West 15th Street from Seminole County to Harvest Time International, Inc.

9. Pulled from the agenda request to approve and authorize the Chairman to execute the Corrective Restrictive Use Covenant for the Holly Homes Townhomes project funded by County HOME Program funds.

Environmental Services

Business Office

10. Authorize the partial release of the Developer's Cash Completion Bond (For Performance - Water and Sewer Improvements) in the amount of $243,272.70 pursuant to the Escrow Agreement (Water and Sewer Improvements) for Howell Branch Cove as requested by Howell Branch Cove, Ltd.

Fiscal Services

Budget Division

11. Approve and authorize the Chairman to execute appropriate Resolution #2011-R-92, as shown on page __________, implementing Budget Amendment Request (BAR) #11-51 through the BOCC Agency Fund in the amount of $1,000 to appropriate funds for Parks and Recreation signs.

12. Approve and authorize the Chairman to execute Budget Change Request (BCR) #11-9, as shown on page _________, through the Tourist Development Fund in the amount of $41,710 to reallocate funds to be used for other marketing efforts.

Growth Management

Planning & Development Division

13. Authorize the release of a portion of the Developer’s Cash Completion Bond and Escrow Agreement for Road Improvements in the amount of $148,329.00, for Howell Branch Cove. (Howell Branch Cove, Ltd.)

Leisure Services

Tourism-CVB Division

14. Approve and authorize reallocation of budgeted Tourism tax funds in the amount of $41,710 for development of mobile website, table top display for tradeshows, logo table cloths for tradeshows, and additional copies of rack brochures.

15. Approve and authorize the Chairman to execute an Agreement, as shown on page _________, with the Florida Amateur Softball Association, Inc. for the 2011 Girls Fast Pitch State Championships in the amount of $8,494.81.

Public Safety

Emergency Management

16. Approve and authorize the Chairman to execute appropriate Resolution #2011-R-93, as shown on page _________, adopting the Seminole County Floodplain Management Plan as an annex to the County's Local Mitigation Strategy.

Public Works

Engineering Division

17. Approve and authorize the Chairman to execute an Interlocal Agreement, as shown on page _________, with the City of Altamonte Springs along with a Grade Control Structure Easement and a Temporary Construction Easement, as shown on page _________, in conjunction with the Little Wekiva River Grade Control Structure for the State Road 434 Sediment Basin Little Wekiva River Drainage Project.

18. Approve and authorize the Chairman to execute a Purchase Agreement, as shown on page _________, for property necessary for the construction and maintenance of a sidewalk adjacent to Orange Boulevard.

19. Adopt appropriate Resolution #2011-R-94, as shown on page _________, and authorize the Chairman to execute a Locally Funded Agreement, Memorandum of Agreement and a Memorandum of Understanding, as shown on page _________, with the State of Florida Department of Transportation for the acquisition of right-of-way for the realignment of Celery Avenue (State Road 415 to Chickasaw Drive) in conjunction with the construction of additional lanes and reconstructing State Road 415 (State Road 46 to the Volusia County Line). (FDOT – Financial Management Number 407355-1-43-01)

20. Adopt appropriate Resolution #2011-R-95, as shown on page ___________, and authorize the Chairman to execute the Local Agency (LAP) Agreement, as shown on page _________, with the Florida Department of Transportation for the construction of sidewalk along streets surrounding Walker Elementary School. (FDOT - FPN: 429598-2-58-01)

Traffic Engineering Division

21. Adopt appropriate Resolution #2011-R-96, as shown on page _________, increasing the speed limit from 30 mph to 35 mph on McCulloch Road between Rouse Road and State Road 434, a distance of approximately 1.0 mile.

Districts 1, 2, 3, 4 and 5 voted AYE.

CONSTITUTIONAL OFFICER’S CONSENT AGENDA

Motion by Commissioner Van Der Weide, seconded by Commissioner Henley to authorize and approve the following:

Clerk’s Office

22. Expenditure Approval Lists, as shown on page _________, dated April 11 and 18, 2011; and Payroll Approval List, as shown on page _________, dated April 14, 2011; approval of BCC Minutes dated April 12, 2011; and noting, for information only, the following Clerk’s “received and filed”:

1. Parks Contracts, as shown on page ________, for Services for Mary Acken, Peter Gillich and Antoinette Basque.

2. Amendment #2, as shown on page ________, to Work Order #2 for PS-4736-09.

3. Work Order #90, as shown on page _________, to PS-1074-06.

4. Closeout of CC-3075-08, as shown on page ________.

5. Maintenance Bond, as shown on page _________, in the amount of $2,248 for the project known as Sanford Auto Mall (Evolution Auto).

6. Work Orders #37, #38 and #39, as shown on page _________, to CC-2184-07.

7. Closeout of CC-4813-09, as shown on page _________.

8. Closeout, as shown on page _________, of Work Order #26 to CC-2184-07.

9. Satisfactions of Liens, as shown on page ________, for Isiah & Ethel L. Troutman c/o Annie Johnson, Case No. 04-67-CEB, as approved by the BCC on June 22, 2010.

10. Work Order #10, as shown on page _________, to M-5004-09.

11. Work Order #7, as shown on page _________, to PS-1666-07.

12. Amendment #2, as shown on page __________, to Work Order #7 for PS-5173-04.

13. Denial Development Orders, as shown on page __________, for Hassan Yazdiananari & Mina Asgari, 189 Jay Drive; and Michael & Jennifer N. Dequattro, 2929 Bermuda Avenue.

14. Work Order #60, as shown on page _________, to CC-1284-06.

15. Tennis Developmental Instructor Agreement, as shown on page _________, with Danielle Nickerson.

16. Restrictive Use Covenant, as shown on page _________, granted by Miller Construction Services to Seminole County for property located at 156 Gleason Cove, Sanford.

17. Home Ownership Assistance Program Mortgage Deed, as shown on page _________, for Clementine Inman.

18. Letter of acceptance of off-site sewer system and Bill of Sale, as shown on page _________, for the Sanford Auto Mall.

19. Amendment #1, as shown on page ________, to M-5004-09, ZHA, Inc.

20. Change Order #1, as shown on page _________, to CC-6043-10.

21. Work Order #82, as shown on page _________, to PS-1529-06.

22. BOA Development Orders, as shown on page _________, as follows: Polytechnic University of Puerto Rico, Inc. Special Exception; Dib Diab variance; Michael & Jennifer Dequattro variance; James R. & Donna M. Sada variance; Robert, Francis & Theresa Gallagher variance; John & Amy Tedford variance; Sylvia G. Schafer variance; and Greg & Jaqueline Ersek variance.

23. Work Orders #21, #22 and #24, as shown on page _________, to CC-2190-07.

24. Sealed Litigation Strategy Session Transcript dated March 8, 2011, regarding Allied Veterans of the World, Inc.

25. Bids for IFB-601111-11.

Districts 1, 2, 3, 4 and 5 voted AYE.

REGULAR AGENDA

Joy Williams, Planning, addressed the Board to present request to reduce the Code Enforcement lien totaling $48,500 for Case #09-91-CEB to $4,000 on property located at 5399 Shoreline Circle, Sanford, Joseph Weaver (previous owner), Federal National Mortgage Association-Fannie Mae (current owner), Robert Sabrknani, Realty Executives Seminole. She reviewed the background timeline as outlined in the agenda memorandum. She stated staff recommends denial of the request and asks that the staff report be made part of the record.

District Commissioner Carey stated she has investigated this item and there were a couple of things that seem to pop out. She stated this is a Fannie Mae issue and they notified the representative broker and they indicated that September 13 is the date that they were notified. She said she has looked at the timeline, and the other thing that stood out to her is there seems to be a lag time between the time the work is done and when they actually called. The pool contractor’s invoice for the pool work indicates that it was secured in December, and the landscaping was done in January, but it was February 14 before the affidavit was filed. She recommends going from the date of September 13 through the date that the invoice was paid. She said the invoice of the pool contractor was dated December 14 and that would reduce the number of days to 88. Therefore, that would reduce the lien to $22,000. She added she is not willing to go with the $4,000 as she feels it is incumbent on these financial institutions to take a little more leadership role in trying to get these properties turned around.

Motion by Commissioner Dallari, seconded by Commissioner Henley to approve a reduction to the Code Enforcement lien totaling $48,500 for Case #09-91-CEB to $22,000 on property located at 5399 Shoreline Circle, Sanford, Joseph Weaver (previous owner), Federal National Mortgage Association-Fannie Mae (current owner), Robert Sabrknani, Realty Executives Seminole; and require the reduced amount to be paid within 60 days or the lien will revert back to its original amount of $48,500; and authorize the Chairman to execute the Release of Lien.

Districts 1, 2, 3, 4 and 5 voted AYE.

-------

Chairman Carey advised that Item #24, Lyman Road (295) Active/Passive Buffer Waiver, has been moved to the afternoon meeting.

COUNTY MANAGER’S BRIEFING

No Report.

COUNTY ATTORNEY’S BRIEFING

CLOSED MEETING

Mr. McMillan stated the BCC will meet in a closed Attorney-Client Strategy Session (Item #22) in Room 3024 to discuss the case of Allied Veterans of the World, Inc., et al. v. Seminole County. He stated Attorney Christopher Skambis will not attend the meeting today as he is attending his daughter’s graduation.

Chairman Carey advised the public session of the Board of County Commissioners meeting will now be closed so that the Commissioners may meet in a closed strategy session in Conference Room 3024 with the County Attorney staff to discuss pending litigation in the case of Allied Veterans of the World, Inc., et al. v. Seminole County, Case No. 6-11-CV-155-ORL-28DAB. Those present at the meeting will be the five County Commissioners; Acting County Manager Joseph Forte; County Attorney Robert McMillan; Assistant County Attorneys David Shields, Arnold Schneider and Donna Wysong; and a Court Reporter as required by law. She said the meeting will be approximately one hour.

Chairman Carey recessed the meeting at 10:03 a.m. to convene the Attorney-Client Strategy Session in Room 3024, and reconvened the Board of County Commissioners meeting at 10:53 a.m.

Chairman Carey stated the closed Strategy Session has been completed and the BCC meeting is now reopened. The Board has finished their morning session and if there is no other business before Board, she will recess the meeting until 1:30 p.m.

Chairman Carey recessed the meeting at 10:55 a.m., reconvening at 1:30 p.m., with all Commissioners and all other Officials with the exception of Clerk of Court Maryanne Morse, who was absent, and Deputy Clerk Eva Roach who was replaced by Deputy Clerk Jane Spencer, who were present at the Opening Session.

PROOFS OF PUBLICATION

Motion by Commissioner Van Der Weide, seconded by Commissioner Dallari, to authorize the filing of the proofs of publication for this meeting's scheduled public hearings into the Official Record.

Districts 1, 2, 3, 4 and 5 voted AYE.

PUBLIC HEARINGS

The Springs PUD Major Amendment/

Saxon and Clark, Continued

Continuation of a public hearing from April 26, 2011, to consider a Major Amendment and Rezone to The Springs PUD (Planned Unit Development) and the Revised Final Master Plan and Addendum #9 to the Developer’s Commitment Agreement, a portion of Tract 19 consisting of approximately 1.19 acres, located on the north side of West S.R. 434, approximately 1/4 mile west of Markham Woods Road, as described in the proof of publication, Saxon and Clark.

Joy Williams, Planning and Development Division, addressed the Board to present the request, stating the subject site (Tract 19A) was originally designated recreation and open space for The Springs PUD which was approved in 1977. In 1976, the subject site obtained site plan approval from the Board of County Commissioners for a real estate office which was utilized as commercial use until the building was removed in 2008. Ms. Williams stated that this came before the Board in 1994, and the request to change the permitted uses were denied. In 1996 a lawsuit was filed and a final judgment was issued stating that the Homeowners Association had no ownership, access or easement rights to the property.

Ms. Williams advised that the applicant is requesting a Major Amendment and rezone to allow for CN (Restricted Neighborhood Commercial) permitted uses with the exclusion of the following: fire stations, libraries, locksmiths, luggage shops, physical fitness studios, post offices, public and private schools, shoe repair shops, tobacco shops, and toy stores. This request is compatible with Tract 18 of The Springs PUD adjacent to the east, which also permits CN uses. The subject site will utilize the existing joint access drive from Tract 18 and will maintain the required 50-foot buffer along West SR 434, as well as provide a 25-foot building setback and a 10-foot landscaped buffer along the northern boundary line of proposed Tract 19A. After removing the subject site from the total open space calculations, the PUD still meets the open space criteria as required by the Seminole County Land Development Code.

Ms. Williams noted that on January 25 of this year the Board of County Commissioners denied the request 4 to 1. She stated that the current proposed amendment is consistent with the previously considered amendment except that the current proposal excludes ten of the CN permitted uses and includes a 10-foot landscaped buffer along the northern boundary line of proposed Tract 19A. She stated that the Planning and Zoning Commission (P&Z) unanimously approved the request with the conditions that the northern buffer be planted with canopy trees, sub-canopy trees and shrubs that will reach 100% opacity within one year of planting, and that the existing canopy trees on the northern buffer be retained.

Ms. Williams stated that staff recommends approval and requested that the Staff Report be made part of the record.

Attorney Damon Chase, representing the applicants Donnie Saxon and Tom Clark, addressed the Board to advise that the application was before the Board in a similar form a few months ago and explained that there was a lot about the history that needed to be presented to the Board that wasn't presented before. On staff's aerial map, Mr. Chase indicated the location of Petty's Meat Market and explained that it was allowed by a 1981 amendment to the PUD which allowed it to be CN zoning with some restrictions even though it is close to the condominiums.

Mr. Chase displayed a rendition (copy received and filed) of the proposed building. He stated this building will stand in the place of the other building that was being used as a commercial building for 30 years. He displayed a list of Permitted Uses (copy received and filed) for the CN zoning and indicated the uses they were deleting which would make it consistent with the 1981 Petty's application. He stated that this application includes a 10-foot 100% opacity landscape buffer on the northern property line. He noted that that is new to this application.

Mr. Chase reviewed a list of Proposed Findings (copy received and filed). He introduced a transcribed portion of a hearing (copy received and filed) and reviewed some of Attorney Ken Wright's comments with regard to non-conforming use, open space and that it was a temporary office. Mr. Chase read Section 30.451(e) (copy received and filed) of the Land Development Code, Development Standards for Planned Unit Development, which defines Open Space. He stated that it is undisputed that this property for decades has been privately owned and does not qualify as Open Space. He read the Definition of Nonconforming Use (copy received and filed) of Section 2.3 of the Land Development Code. He stated that this property was used for a commercial purpose for 30 years and for the purposes for which it was set up in the original PUD. This property was always permitted to be a commercial use, not a non-conforming use.

Mr. Chase referenced page 5 of The Springs PUD Agreement (copy received and filed) and pointed out that Item #1 does not say temporary use, but says there can be a real estate sales building in that area. He referenced Addendum #5, which was adopted in 1981, which indicates Petty's Meat Market can have CN zoning. He stated their property and the Petty property are almost identical; they sit right next to each other and both front SR 434.

Mr. Chase referred to The Springs PUD Major Amendment (copy received and filed) and discussed compatibility with surrounding properties. He displayed an original map (copy received and filed) of the building. He stated that the building was huge, not a trailer, with a paved parking lot and septic tank which still functions. He indicated on the map the entrance to both Petty's and the subject property, the fence and road behind the property and where the houses are located.

Mr. Chase stated that a non-conforming use cannot be expanded. He displayed a Request for Permitting (copy received and filed) for an expansion to the building, a one-story frame realty office. He stated that the permit was granted and the fire chief signed off. The Seminole County Building Department issued a permit to expand the structure on November 26, 1980. No variance was ever applied for because it wasn't a non-conforming use and not necessary. He discussed the accompanying documents (copy received and filed) from the Fire Department and displayed a schematic which illustrated the construction changes to a permanent structure.

Mr. Chase displayed a 1977 brochure (copy received and filed), not presented at that last hearing, that Earl Downs created which described The Springs and talks about what a wonderful community it is. He stated that one of the arguments made is that this property was sold and promised to remain open space forever. He noted that on the map in the brochure, their lot and the lot where Petty's is located are the only pink-colored lots. The legend on the map indicates pink is Office Center. The dark green is forest, parks and greenbelt. He discussed the greenbelt area and stated that no greenbelt easement or restriction existed with regard to those two parcels, that they were different.

He referenced a copy of a warranty deed (copy received and filed) from Earl Downs to the Carrolls on August 25, 1977 and noted that the conveyance identifies declarations, covenants and restrictions as they had been recorded. He next referenced a 1984 deed (copy received and filed) for the subject parcel and noted that it does not contain such restrictions. It was not subject to the deed restrictions. He pointed out that the two parcels have never paid an assessment. He stated this information was not presented at the last hearing.

With regard to The Springs not being given an opportunity to purchase the subject property, Mr. Chase referenced Board of Directors Meeting Minutes from The Springs Community Association (SCA) for May 1986 and June 1986 (copies received and filed) which discuss Mr. Downs' offer to sell a parcel of land to the SCA for $250,000 and the SCA's decision not to purchase. Mr. Chase stated that the developer then sold the property to Nancy Holmes. He explained that in 1990, the Springs Association sued the developer for a declaratory action.

Mr. Chase referenced page 3 (#13) and page 4 (#17) of the Second Amended Complaint (copy received and filed) and stated that in this, the SCA was essentially saying aren't those properties on SR 434 part of the open space greenbelt. Mr. Chase then reviewed page 4 (d and e) of the Defendant's Motion to Dismiss and Memorandum of Law (copy received and filed) which was filed by the Developer. Mr. Chase stated that Judge Mize on April 1, 1991 issued an Order Granting Defendants' Motion to Dismiss with Prejudice (copy received and filed) which means that the issue could not come back up again. He noted that Judge Mize opined that the Plaintiff was precluded from challenging Defendants' title to the real property at issue. He noted that this was not previously presented to the Board.

Mr. Chase stated that the property owners next came back and applied to change the use of the whole parcel to C-1 on April 12, 1994. Referring to the BCC Minutes and Agenda backup from April 12, 1994 (copy received and filed), Mr. Chase reviewed the staff's presentation and advised that the Board denied the request due to questions of ownership and what the actual use of the property was.

Mr. Chase referenced a February 17, 1995 letter (copy received and filed) from Attorney Ken Wright to John Dwyer, Seminole County Planning Department. Mr. Chase explained that Mr. Wright's letter (with an attached business card) indicates that an additional business, Suncraft Construction, is operating from the subject property and requests that the County cite the property for a code violation. Mr. Chase referenced the Code Enforcement Board minutes (copy received and filed) from June 29, 1995 which indicate that the code violation case (operating a construction business in violation of the PUD) was dismissed. He then discussed the appeal process for code violation cases and stated that the Code Board's decision was not appealed.

Mr. Chase referenced the language in the 1995 Notice of Special Recreation Lease Purchase Assessment (copy received and filed) which required each unit owner at The Springs to be a member of the Association with various community assessments. He explained that the Petty parcel and the subject parcel are not part of the Association and do not get assessed dues. He stated that members of The Springs are treated differently than the subject parcel and always have been.

Mr. Chase discussed the 1995 lawsuit with The Springs Association. He reviewed the arguments of Counsel on page 3 (#7), page 5 (#10), and page 11 (#20) of the Motion for Summary Final Judgment and Memorandum of Law in Support Thereof (copy received and filed). He reviewed page 5 and page 8 of the Memorandum Brief of Facts in Support of Motion for Summary Final Judgment and the attached affidavits of Nancy Holmes and Tammy Jean Scott (copy received and filed).

Mr. Chase discussed the Stipulated Final Judgment Quieting Title (copy received and filed), which was entered in 1996, and advised that Judge Brock found that the Association had no past, present, or reversionary ownership right, easement right, license right, right of access, or right to compel the conveyance of the Springs Chase property nor the right to initiate a proceeding or lawsuit or bring a defense with respect to any of the foregoing.

Mr. Chase reviewed a Special Warranty Deed (copy received and filed) which conveyed the Recreational Lease property to the Association. He discussed Schedule B (#5) of the Title Insurance Policy (copy received and filed) that the Association received with that deed which lists terms and restrictions. He stated that while all of the property that the Association purchased was subject to the terms listed in #5, the Warranty Deed (copy received and filed) from Spring Chase to Saxon and Clark has no such language because the property was not subject to those terms. He added that certainly title insurance companies do not miss those particular items when they are writing title insurance (copy received and filed).

Mr. Chase advised that in 2004 Donnie Saxon purchased this property as a commercial property and used it at all times as a commercial property for the storage of his furniture and Saxon and Clark's potential use.

With regard to the argument concerning the property being taken for eminent domain and that being the only reason for the application, Mr. Chase referenced the Department of Transportation Certificate of Value (copy received and filed) which indicated the property value was $277,800. The reason for the value was because in 2007, the property was listed as a "one-story office non" on the Property Appraiser data sheet (copy received and filed). He referenced DOR Use Code 1700 (copy received and filed) and explained that the "non" means "non-professional service one-story."

Commissioner Henley stated that while a lot of documents have been presented, he believes most of them are irrelevant to the real issue and deal with ownership of the parcel, which was a question between the HOA and the property owner. The issue, in his mind, for the Board to decide is when the Board allowed the placement of an office building on that property, did they rezone the property to commercial. Commissioner Henley requested the County Attorney speak to what the practice was in the past and still is the practice today about allowing offices to be placed on properties for a specific purpose.

Mr. McMillan explained that currently in the code, PUD's can have temporary sales offices while the PUD is being sold out. He stated that was the practice, that the Board would authorize a temporary sales office in a PUD on property that wasn't zoned commercial or anything that supported the temporary sales office, like model homes in the project. He stated that staff did go back and look at the PUD document which says what Mr. Chase says it says. They tried to go back and find the original Board authorization in 1976 to see if they could find exactly what it said, and none of the documents that they could find actually said it was temporary, although that was the general practice back then and still is today.

Chairman Carey asked if the document, referenced by Mr. Chase, that said that this office was allowed is accurate. Mr. McMillan explained that the PUD document says a real estate office, that had been previously approved in 1976, could be placed on this property that was designated open park land.

Upon inquiry by Commissioner Dallari, Nicole Guillet, Growth Management Director, addressed the Board to state that there was originally one large lot which has now been divided into two lots. She stated her understanding is that it was created by deed. There was a sales transaction that created the two lots. She advised that the lots do meet the County's lot split requirements; they are the correct size and have the correct access. She stated that the lots did not go through the normal lot split procedure and the split was done a number of years ago, but they do meet the criteria for individual lots.

Commissioner Dallari asked Ms. Guillet to review the open space requirements and whether or not this property is part of the PUD open space for The Springs.

Ms. Guillet explained that there is a requirement in the Land Development Code for a minimum of 25% open space in PUD's. The open space has to be available to the public and can't be in private ownership where it is not available to the public. It has to either be a tract that is publicly owned or it can be dedicated to the public through easements. She stated that in The Springs, the open space is available through a combination of both easement and actual tracts.

Upon further inquiry by Commissioner Dallari, Ms. Guillet stated that the subject property was originally designated as open space in the PUD; however, as a result of the Quiet Title action, it no longer qualifies as open space; so it is not a piece of property that could be counted towards the required open space within the PUD.

Upon inquiry by Commissioner Dallari, Ms. Guillet stated that there was a real estate office on the property at one point. As to whether or not a permit could be pulled today to replace the building, she stated that the conditions of the PUD authorize a real estate office on the site; so unless the County Attorney's Office said otherwise, Growth Management would interpret that to allow a real estate office. She said from a planning and development standpoint, a building permit could be pulled to put an office building on the property.

Upon inquiry by Chairman Carey as to whether or not these parcels are or are not part of The Springs' open space, Ms. Guillet stated that she has not reviewed the documents; but based on current definition of open space and the status of the property as a result of Quiet Title, the parcels would not qualify as open space.

Upon inquiry by Commissioner Horan, Ms. Williams stated that Parcels 19A and 19B are separate parcels but are currently all part of Tract 19. Commissioner Horan clarified that Parcel 19A is owned by Saxon and Clark, 19B (referred to as the Poppa Jay's property) is owned by Saxon and Clark, and Parcel 19 is owned by The Springs Association.

Commissioner Horan questioned whether or not, if the Board grants the application, the PUD will still have 25% of open space that is owned by itself or an easement. Ms. Guillet responded yes and Mr. Chase stated they would have 36.56% open space.

A discussion ensued with regard to how 19A and 19B came into existance in 1984.

Mr. McMillan stated that while the two parcels were created by deed, that does not constitute a new parcel for land development purposes. They have not actually gone through the process of spliting them, but they could be split into those two parcels because both parcels, under the code, would meet the requirements for a split. He stated there was not a formal split done through the split process.

Commissioner Horan asked if the use on Lot Number 18 was non-conforming. Mr. McMillan advised that according to the PUD agreement, Parcel 18 was commercial in the original PUD, designated for commercial use while neither 19, 19A, or 19B were. Mr. Chase stated that Parcel 18 became CN in Amendment 5. Mr. McMillan stated that in the original PUD, Parcel 18 was designated commercial office and it was provided that all of 19 would be permanent open park land with the permission to use it as a real estate sales office.

Upon inquiry by Commissioner Horan as to whether or not the existence of a real estate office on 19A would be a non-conforming use, Mr. McMillan explained that would go back to the whole issue of whether or not the office was temporary or not. It was permitted, as it is now. The code today provides that you can have a temporary sales office to sell the lots in a PUD. It was authorized until it was no longer authorized again.

Chairman Carey clarified that according to the documents in the Board's package and what was presented here today, it was allowed to be a real estate office. It didn't say temporary. Mr. McMillan stated that staff could find no document where it said temporary real estate office.

Upon inquiry by Commissioner Henley, Ms. Guillet stated that the condition would not lapse for non-use because it is a condition of a zoning. PUD criteria are zoning criteria. She stated if it had been a special exception and they didn't use it, they could have lost it. If it was, in fact, a legal non-conforming use, failure to continue that use would have terminated the right to it. She said the determination as to whether or not the condition was terminated depends on whether or not it was a legal non-conforming use. Commissioner Henley stated that it all goes back to the intent of the original Board allowing a building to be used there for that purpose. Mr. Chase stated that the intent of the Board is not legally something that can be relied on and one must go by the documents, especially when talking about 30 years ago and putting people on notice as to what their property can be used for.

With regard to the lot split, Mr. Chase referred to Section 35.2 of the Land Development Code (copy received and filed) which describes the requirements for a lot split and advised that the parcels satisfy the subdivision requirements.

Mr. Chase displayed a map (copy received and filed) delineating green space absent the subject parcels and indicated that the amount is still more than 25%. He pointed out that the Petty’s Meat Market parcel approves of their request and that the Association is neutral, neither opposes or approves.

Mr. Chase discussed the damage that was done to the permanent building in the hurricanes and the repair attempts. He stated that Code Enforcement required the building to be repaired or torn down. He explained that after the building was torn down, DOT requested of the County's staff what the status was and staff, unaware of any of the lawsuits, stated that the property would revert back to open space because staff believed it was owned by the Association. The Department of Transportation, on November 4, 2009, then came back and reduced its offer to $89,000 (copy of Certificate of Value received and filed). He stated that the information provided to DOT was erroneous and DOT changed its offer, which is why the applicant has come to the BCC, the legally appropriate remedy.

Mr. Chase reviewed the current tax bill (copy received and filed) and indicated that the taxes have been paid.

Mr. Chase reviewed the Affidavit (copy received and filed) of Tina Williamson, Planning and Development Division Manager, which was filed in the DOT case and states the advice given to Richard MacMillan, an appraiser hired by FDOT, was incorrect.

Mr. Chase discussed the petitions that were filed at the last hearing and explained why he believes the petition (copy received and filed) was not clear. He displayed a copy of a message blog (copy received and filed) which states that a 10,000 square-foot building would be built. He advised that all they were trying to do is replace what was a deteriorated building with something very beautiful and very similar in size.

Mr. Chase stated that they would like to continue the use of their property for the purposes for which they purchased it and be able to continue their property rights as they were given at the time of purchase. He explained why he believes this is a property rights case and stated the right thing to do is fix this problem and grant the request which is consistent with the rest of the PUD, consistent with what this Board has done before through Amendment 5 of the PUD granting the CN usage to the Petty's lot and he requested the Board's approval.

Upon inquiry by Commissioner Henley, Mr. McMillan stated that Tract 18, Petty's, was designated Commercial Office and then there was the addendum to make it CN. All of Tract 19 was designated as Recreation; and the provision said The Springs, which was this parcel and 22 adjacent acres, would be permanent park land and a real estate office, approved by the Board on June 8, 1976, shall be permitted as shown in this area.

Discussion ensued with regard to the amended uses on these parcels.

Mr. Chase summarized that there was a 30-year-old building, beaten up by the storms, which they tore down and tried to replace. He discussed the DOT problem and advised that before they were cited for the code violation, it was valued at $18 a square foot which was consistent with the purchase of the property as a commercial use in 2004. It wasn't until after the erroneous statement by this particular government that DOT reduced it down to $3 a square foot.

Upon inquiry by Commissioner Henley, Mr. Chase stated that he submitted a map that calculates the percentage of open space at 36-plus. He discussed how easements were dedicated over certain parcels of private property in order to maintain the green space, which was the dedication to government which qualified as open space. He added that doesn't exist on their property. Every time there was a lawsuit about that, the property owners have prevailed that the Association has no right, title or claim or any easement over and across the two parcels. He stated that the reason why the lawsuits and the code enforcement hearing are so important to this application is because they show that these two parcels were never treated as being part of the green space or open space.

Brett Lindquist, 1807 Palm View Court, addressed the Board to state that he is the CEO of a mortgage firm about a half of a mile from the location and has dealt with Saxon and Clark on a business level for at least 10 years. He believes this type of business in the area would be a great asset, be well maintained and have a great presence on SR 434.

Jes Baru, 108 Bridgeway Circle, addressed the Board to state that he has lived in The Springs since 1977. He stated that when he first received the circulated petition, he did not understand and believed it would be commercial like Subway and a pizza parlor and was the first one to sign the petition. When he came to the hearing the first time to object, while listening, he realized that it would be one little building which is better than leaving it as an empty lot.

John Doerr, 121 Autumn Drive, addressed the Board to state that he was representing Allyson Hidalgo who is the owner of Petty's. He stated that Ms. Hidalgo has seen the property not being maintained either by The Springs or the people that have owned it.

Mr. Doerr stated that he has lived in the community for 11 years and has seen the deterioration of the fence in that area. He stated that he and Ms. Hidalgo support this request.

John English's name was announced and it was determined that he was not in attendance.

John Parke, III, 120 Woodmill Road, addressed the Board to state that he is a member of The Springs. He stated he has been a builder/developer and believes that what is being proposed will be a great buffer between the commercial and office residential. It will greatly enhance the value of the property as well as make The Springs more valuable. He said the entrance to The Springs is unkempt and needs to be upgraded because it is an eyesore for the entire community of Seminole County.

Mr. Parke pointed out that The Springs had an opportunity to buy the property in 1985 and passed on it. He stated that again in 1995, when they bought the rec lease, they did not make an offer for 19A and 19B. In his opinion, The Springs wants all of the benefits of the property but none of the responsibility of the ownership. He requested that the Commissioners approve the item and enhance the entire area.

John English's name was again announced and it was determined that he was not in attendance.

Attorney Ken Wright, Shutts and Bowen, addressed the Board to state that he represents a number of homeowners from The Springs who are in opposition to the application. Mr. Wright reviewed a document (copy received and filed) which was an objection by the owner in 1994 to the Property Appraiser's assessment of that property as being other than open space and recreation. He stated that there was a subsequent reduction in the taxes.

Mr. Wright provided a PowerPoint presentation (copy received and filed) that outlines an argument that he made 90 days ago to the Board. He requested that the minutes from the January 25, 2011 BCC meeting (copy received and filed) and the minutes from the BCC meeting 16 years prior (copy not received and filed) be made a part of the record.

Mr. Wright stated he believes the arguments that Mr. Chase articulated are the same from the prior hearing. He stated that it is difficult to elevate the legitimacy of having a hearing on essentially the same application twice in 90 days and believes the changes that have been mentioned are insignificant. He believes this is about the condemnation action and an attempt to gain a property value for a temporary sales office.

Mr. Wright stated this may be about property rights but there are two sides with property rights. He believes this was the first PUD in Seminole County and that a sales office was allowed in The Springs PUD. It did not state, as did the property to the east, that it was going to be future commercial. It stated that it was going to be open space and that within that area was an ideal location for a temporary sales office for The Springs PUD.

Mr. Wright stated that the answer to this matter is neither in the Land Development Code, nor in staff's recommendation; but rather, the answer rests in the Commission's good judgment.

Linda Shakar conceded her time to Mr. Wright.

Mr. Wright continued that the Board made Findings of Fact as recently as 90 days ago. He stated he is not sure that it is right that he is here and that the Saxon folks are here. These processes, which are required of the County and required of the applicant, are to protect and, in this case, to protect a group of homeowners from needing to come to the Board and mount an objection every 90 days. He does not see anything in this application that distinguishes it from the previous application other than an explanation about a number of issues in a lawsuit having to do with very esoteric legal issues having to do with a quiet title action determining ownership to a piece of property which The Springs people knew they didn't own and did not purchase.

Mr. Wright noted that four of the Commissioners decided 90 days ago that it was an inappropriate use, and he requested that the Board do that again today.

Robert Shakar, 125 Red Cedar Drive, addressed the Board to discuss three flaws (copies received and filed) in the application. He reviewed Flaw 1 which deals with open space allocations. He stated that the applicant has supplied a chart that changes the open space allocation. In Flaw 2, Mr. Shakar directed the Board to Addendum 3 of The Springs PUD dated September 25, 1979 regarding all property owners being a member of The Springs Community Association. He reviewed Flaw 3 which deals with permanent open park land. Mr. Shakar stated permanent means forever, it should not be changed.

Walter Temple, 105 Sand Pine Lane, addressed the Board to state that he has been a resident of The Springs since 1977. He stated that he is surprised they did not have to wait a year or more to come back and does not see any substantial change from 90 days ago. He stated he does not see any changes since 1970, the 1977 Master Plan and 1994, when he appear before the Board.

Mr. Temple gave a brief history with regard to the commitment from the developer for permanent park land which was 22.46 acres in Tract 19. He stated that developer first leased the land; and due to a state law change, he then had to sell the property. Upon the sale, three acres ended up in the developer's personal hands.

Mr. Temple stated in '94, he was offered the property along with the realty company. After meeting with the staff, he was convinced that it was open land and it was a temporary sales office so it made no business sense to buy it.

With regard to condemnation, Mr. Temple stated that he believes that seller to Saxon Clark and Saxon Clark missed a wonderful opportunity to right a wrong and get a return of their investment.

Nancy Kennedy conceded her time to Mr. Temple.

Mr. Temple continued that twice this item has been denied by the Board and he requests that they do it a third time.

Donald Ullrich, 131 Bridlewood Lane, addressed the Board to state that while they didn't put temporary or a date for removal of the sales office in 1977, in '81, when the same developer, Mr. Downs, asked for a sales office for Springs Landing, it was temporary and he got a closing date. He stated that the statement that is in the PUD, permanent open park land, was believed when they bought.

Mr. Ullrich stated that the land that was recreational and open space was to be turned over to the community. He stated that the second mistake made in the process was when Mr. Downs decided to sell the land and not turn it over to the Association. He believes the only way to correct that mistake is to not let the land be developed any further. He stated he opposes the proposal for rezoning.

Linda McAleer, 264 Spring Run Circle, addressed the Board to state that she was the president of The Springs Community Association Board of Directors when this came before the BCC in 1994. She stated that The Springs was the first PUD in Seminole County and staff admitted to not having any previous experience with PUD's and to learning as they went along. She advised that the PUD showed residential and commercial areas to be developed but also the recreational and open spaces that would not be developed.

Ms. McAleer described the temporary sales office that was located next to the commercial property that is Petty's Meats and stated that the parcel was described as open space and located adjacent to the clubhouse parking lot and recreation area. She described the neighborhood's perimeter fence and stated that there was a gate in that fence which allowed for easy access for realtors and prospective buyers yet maintained neighborhood security. She discussed comments made by the realtors with regard to the area being an open space barrier between the recreational area and SR 434.

Ms. McAleer stated that the developer did come to the Association wanting to sell the open space parcel. She stated that everyone had been told that that parcel was part of the recreational area.

Toby Robinson conceded her time to Linda McAleer.

Ms. McAleer continued that the developer did sell the parcel and the new owner tried to change the PUD in 1994. She stated that the original surveyor's description for the recreation lease had, in fact, omitted the parcel in question from the legal description of the recreation area but still left it as open space. The developer made no effort to change the PUD designation from open space to commercial. In 1994 when The Springs Community Association Board objected to changes in the PUD, the BCC voted 5-0 against the request to change the zoning. Ms. McAleer described the attempt by the owner to sell the property to the Homeowner’s Association.

Ms. McAleer stated that she does not feel it is the responsibility of the Homeowner’s Association or Seminole County to make sure that no one suffers a financial loss from making a poor investment. Changing the PUD will be a bell that cannot be unrung in the future. She stated that the purpose of a PUD is to totally plan a neighborhood, including the commercial outparcels, and protect the residents of that neighborhood. She requested that the Board vote no.

Christina Lathrop, 328 Spring Run Circle, addressed the Board to state that she has been a practicing landscape architect in Central Florida for over 20 years whose work is primarily commercial. She stated that she is very much opposed to the possible precedent that is potentially being set here today. In the original PUD, this parcel was conceived as permanent open park land. She believes that the property ownership issue is muddying up the fact that it is currently zoned recreation open space and that the original intent was a temporary sales office. She discussed the watershed, aquifer (how allowing permanent commercial use will infringe on the spring), and the fact that currently there is pervious land within the immediate spring watershed.

Chairman Carey pointed out that this particular site currently has a parking lot on it.

Ms. Lathrop stated that she does not believe it is possible to create 100% opacity. She stated that she is opposed to the amendment change.

Upon inquiry by Commissioner Horan, Ms. Lathrop stated that to be 100% opaque would be impossible because of air space, movement and the fact that the parcel is shady.

Upon inquiry by Chairman Carey, Ms. Lathrop stated that there is the fence line, the access road on The Springs property and then the wooded area that slopes down to the spring.

Ronald Kenney, 113 Wild Holly Lane, addressed to Board to state that he and his wife have owned two homes in The Springs since the early '90's. He submitted Petitions, as shown on page _______, with the signatures of 335 Springs residents opposing the rezoning. He stated that the financial support for the effort has come from the voluntary contributions of these people and is not part of the Association’s budget. Mr. Kenney stated that he believes The Springs is a special place and the PUD should not be amended.

Chairman Carey recessed the meeting at 3:30 p.m., reconvening at 3:37 p.m.

Attorney Vicki Levy Eskin, 100 Woodmill Road, addressed the Board to state that she lives in The Springs and is representing several homeowners that live in The Springs. She discussed a Title Search Report (copy received and filed) on Tract 19 that she had prepared. She stated that the search took nearly three and a half weeks, instead of the usual two to three days. She stated she requested a search on the entire Tract 19 and that it did say that the tract was subject to the PUD amendment. Ms. Eskin stressed that this is not an ownership issue. She stated that just because she and her husband own their property, that doesn't mean that she can erect a cell phone tower or knock down the building and put up a law office. It means that she would have to come back and request a zoning change and have a darned good reason for the request.

Ms. Eskin stated that she believes everyone speaking on the other side has a pecuniary interest. She referenced the site plan from 1976 (copy not received and filed) that specifically refers to the plat as a sales office.

H. Gold conceded her time to Vicki Levy Eskin.

Ms. Eskin continued that ownership does not mean that you can do whatever you want, and she believes this is all about money. She stated the Board should make its decision, not based on money, but based on whether or not the building will benefit the people that live in The Springs. Ms. Eskin stated that it is not easily accessible to get to either Petty's or this piece of property. She described how the fence and the property that the sink hole is on has deteriorated and stated that both are owned by Saxon and Clark. She stated that the people who live in The Springs do not want this and believe it is not the right time for this Board to change the decision it made 16 years ago or 90 days ago.

Barbara Gibson, 107 Wild Hickory Lane, addressed the Board to state she has lived in The Springs for 19 years. She described the wildlife in the community. She stated she feels strongly the area attempting to be rezoned should remain open space as it has been since the PUD was established in the mid-1970's. She stated there was a small real estate office approved by the BCC in 1977 to help the developer sell out the establishment, but the parcel was not rezoned. She stated that the area running from the commercial area established by the developer on the corner of SR 434 and Markham Woods Road to the entrance to The Springs was kept an open area. She discussed the rezoning effort in 1994 which was denied by the BCC. She believes that most of the objections in the earlier request still exist today. She asked that the Board deny the request to rezone.

Rhoda Phillips conceded her time to Bob Shakar.

Mr. Shakar stated that Mr. Chase had indicated that on the site there is a septic tank still in operation. He submitted the State of Florida Department of Health construction permit(copy received and filed) that indicates that the septic tank has been destroyed and removed. He added that he has verified with Utilities, Inc. that there is no sewer line going to the site.

Mr. Shakar stated that The Springs made a mistake when they thought they were buying all of the property and it did not happen that way. What was said to them was you should have known, too bad. He stated that the property owner knew what the previous zoning situation was, knew what the allocation was for this neighborhood and yet they are still here saying they should be able to change this. He stated this is a property rights issue in the sense that the residents had a contract with the County which says permanent open park land. Mr. Shakar stated that there is nothing new in this application. He stated that permanent open park land means forever.

John Ondo conceded his time to Ken Wright.

Mr. Wright stated that this application is not significantly different and is essentially the same one that was filed 90 days ago. He requested that the Commissioners look at the application and not the argument that has been made.

Don Eskin, 128 Woodmill Road, addressed the Board to state that he is opposed and hopes the Board's decision is the same as it was 90 days ago and the time before that. He has heard nothing new.

Belinda Davis's name was announced and she stated that she had previously surrendered her time.

Barbara Perez, 134 Wisteria Drive, addressed the Board to state that she has lived in The Springs since 1978. She stated she is here to bring the Board's attention to past decisions made in regard to zoning and development. She believes the best prophet of the future is the past. She discussed the last parcel that was developed in the Sabal Point subdivision, which backs up to property in The Springs, regarding drainage onto her property. She stated that her property is as good as a retention pond and is being destroyed because permission was given to build in an area that has created insurmountable problems to others. Ms. Perez submitted photographs (received and filed) of her property. She stated that she has concerns that commercial development on this elevated site will have a dramatic effect for the future of The Springs.

Mike Wadley, 14 East Washington Street, addressed the Board to state that he is a professional land planner and has been asked by some of the residents to evaluate the zoning request. He stated that the request should be denied based on the opinion that he does not believe there can be a finding of consistency between the Future Land Use map and the zoning. Although they are PUD, there cannot be a zoning that is inconsistent with the Future Land Use map and the Future Land Use map designates this parcel as part of a 22.46-acre permanent open park land tract. That is in the developer's commitment agreement and in the PUD documents. He stated that the Future Land Use map would need to be amended before you could rezone. Mr. Wadley stated that the finding in 1994 was that commercial land use would be inconsistent with the developer's 1976 commitment to maintain this property as part of the 22.46 acres of open space land.

Upon inquiry by Commissioner Horan, Mr. Wadley stated that by statute there cannot be any development that is inconsistent with the Future Land Use designation. If there is a rezoning request that is inconsistent with the Future Land Use, you first have to amend the Future Land Use before can you amend the zoning. He stated that while the Future Land Use is PD, the tract is designated as permanent open park land.

Upon inquiry by Chairman Carey, Ms. Guillet stated that staff's interpretation is that the change in use would be consistent with the PD land use designation.

Bonnie Bloom's name was announced and she declined to speak.

In rebuttal, Mr. Chase stated that the land use was consistent with the Future Land Use map (copy received and filed). He noted that he had previously showed a picture of the river that runs in between the houses and the subject property so there will not be any flooding.

Mr. Chase stated the things new to this application are the brochure, the code enforcement matter, the additional lawsuit, the historical use of the property plus an affidavit to better explain the DOT matter. He stated that most importantly, he offered information to rebut earlier claims with regard to non-conforming use, open space and there being a temporary building, a trailer.

Mr. Chase stated that there is no legitimate public purpose for denying this application. It is consistent with the PUD and consistent with Petty's Meat Market. With regard to this property remaining an open space, he noted that this parcel has not been an open space since the 1970's and it does not qualify as open space. It has been used for a commercial purpose at all times since the 1970's.

Mr. Chase stated that while Mr. Kenney submitted petitions with 335 signatures, there are 2,500 people in The Springs which means there are 2,115 people who did not sign the petition. He stated that he believes the statements in the petition are misleading. This is not a non-conforming use or a temporary structure or open space.

With regard to the landscape buffer, Mr. Chase stated that 10 feet of viburnum would be 100% opaque and added that the 10 feet would not be in the shade. He reviewed the brochure that shows that the subject lot was designated office center. He noted when people were going out to purchase property, they weren't going to the public record and reviewing the PUD but were likely looking at the brochure which did not promise open space.

Chairman Carey stated that at the time that the developer brought The Springs forward, it was with great controversy that the BCC allowed it to be developed because it was a favorite swimming hole of many people in Central Florida.

Mr. Chase stated that the developer offered the property to The Springs and they did not purchase it.

With regard to the objection to the way the property was being classified and taxed as discussed by Mr. Wright, Mr. Chase clarified that that was for a separate parcel, the Poppa Jay's property. He stated that this has come forward this time with the proper information, with the full support of Planning and Zoning and with the full support of staff recommending approval. He requested that the Board approve the application.

Commissioner Horan asked if allowing people to get the value of what they purchased is a legitimate public purpose for the Board to serve and requested that the buffer issue be addressed.

Mr. Chase stated that there is a huge buffer and that no house can be seen from this property. He stated that they are adding an additional buffer which is not even required as it is now. He stated that they could go pull a permit tomorrow to build a building and would not have to put up any buffer. He indicated on staff's map the location of the houses.

Mr. Chase stated that the people who purchased, unless they purchased in the last several years, purchased with a building there operating with a commercial use. That is what they were promised and that is what they got. He stated that in contrast, Mr. Saxon and Mr. Clark purchased the property for commercial use; and except for eminent domain and the fiasco with code enforcement and the mix-up in communications between two government entities, they would be being stripped of their rights, stripped of about $177,000. If you break it down to one right versus another right, Mr. Chase advised that you take the one that is least burdensome. He stated that there is no effect on these people by keeping a building on this property the way that it has been for 30 years compared with stripping somebody of their property rights for absolutely no apparent reason.

No one else spoke in support or in opposition.

Speaker Request Forms and a Written Comment Form were received and filed.

Chairman Carey described her subdivision, one of the oldest on Markham Woods Road, and explained how they had to come to the BCC to have the green space in their community vacated. She stated that the rules were different in the past.

Commissioner Dallari stated that he feels he has definitely received a lot of new information. He stated that after Ms. Guillet answered his questions with regard to open space, lot split and the non-confirming usage, he understands that the applicants can pull a permit today if they applied. He believes there is no reason not to grant the CN usage, that CN usage on SR 434 is appropriate.

Commissioner Henley stated that this has been before this Board on two occasions, and he feels that nothing has changed other than the fact that the lot is smaller and that there is a new owner. He stated that ownership has never been an issue before this Board, that the issue has always been land use. He said he heard testimony that you cannot use private property for open space yet that is what has happened in this PUD in order to meet the requirements.

Commissioner Henley stated that while someone could pull a permit today and build a building, based on the testimony that he has heard the only thing that could be built is a real estate office which is not what the owner intends to build.

Commissioner Dallari stated that open space does mean quite a bit. He noted that this is not a part of the open space of The Springs, is not an illegal lot split, and is not a non-conforming use.

Chairman Carey stated that the way things were done in the '70's and the way they are done today are different. Greenbelts were placed on private property and put in the legal descriptions; and, as she said before, the people in her subdivision had to come to the BCC and actually vacate those to get them cleared off the title. She believes that is probably the same scenario at The Springs since it all happened in the same time period.

Chairman Carey stated that she supported this the last time because this parcel is totally segregated from The Springs. She added that the access to this parcel, as one of the speakers said, is not from The Springs, but from SR 434.

Commissioner Henley stated that it is the rules of the day that say you can't use private property for open space. It was set up years ago and they are applying the rules of today, that you can't use private property for open space.

Upon inquiry by Commissioner Van Der Weide in regard to how this item came back to the Board within 90 days, Mr. McMillan advised that the Board waived the one-year waiting requirement. He explained the 70.51 claim that the property owner filed. He stated that the property owner agreed to waive that whole process if the Board would waive the 12-month waiting period.

Discussion ensued with regard to the 70.51 process.

Commissioner Van Der Weide stated he is going to vote against this item and believes this is just legalese.

Motion by Commissioner Van Der Weide, seconded by Commissioner Henley, to deny the request for a Major Amendment; and deny approval of an ordinance to rezone from PUD to PUD; the revised Final Master Plan and Addendum #9 to the Developer’s Commitment Agreement; and authorize the Chairman to execute the Denial Development Order, for a portion of Tract 19 consisting of approximately 1.19 acres, located on the north side of West SR 434, approximately 1/4 mile west of Markham Woods Road; as described in the proof of publication, Saxon and Clark.

Under discussion, Mr. McMillan further explained the 70.51 process.

Districts 3 and 4 voted AYE.

Commissioners Dallari, Horan and Carey voted NAY; whereupon, the motion failed for the lack of a majority vote.

Motion by Commissioner Horan, seconded by Commissioner Dallari, to approve the request for a Major Amendment; approve Ordinance 2011-13, as shown on page _______, to rezone from PUD to PUD; approve the revised Final Master Plan and Addendum #9, as shown on page _______, to the Developer’s Commitment Agreement, for a portion of Tract 19 consisting of approximately 1.19 acres located on the north side of West SR 434, approximately 1/4 mile west of Markham Woods Road; as described in the proof of publication, Saxon and Clark.

Districts 1, 2 and 5 voted AYE.

Commissioner Henley and Commissioner Van Der Weide voted NAY.

Information regarding The Springs PUD, Notice of Rights, Information why the application should be granted PD Amendment and June 8, 1976 Minutes were received and filed.

List of E-mails/telephone calls from District 3 and Letters of Support and Opposition were received and filed.

BOARD OF ADJUSTMENT APPEAL/Nathaniel Zack

Proof of publication, as shown on page ________, calling for a public hearing to consider a request to Appeal the Board of Adjustment’s decision to deny an amendment to an existing special exception for a recycling center in the M-1 (Industrial) zoning district at 295 Lyman Road; located southeast of the intersection of County Road 427 and Lyman Road, Nathaniel Zack, received and filed.

Kathy Hammel, Planning and Development Division, addressed the Board to advise that Item #28 is being heard first because that establishes the use of the special exception of the property while the variance (Item #27) and the active/passive buffer requirement waiver (Item #24) would be accessory to establishing the use.

Ms. Hammel stated that this is an appeal of a denial of an amendment to a special exception for a recycling center that was established in 1993. This amendment would enlarge that use. She reviewed a revised Approval Development Order (copy received and filed), in which the applicant has addressed the concerns raised by the Board of Adjustment, and listed additional conditions contained in that Order.

Commissioner Henley advised that the conditions that were just read address more than one item on the agenda. The changes were incorporated into one document rather than three separate documents, but the Board will have to deal with each item separately in order to approve them.

Attorney Mike Jones, representing the applicant, addressed the Board to state that his presentation with his experts addresses everything.

Chairman Carey stated that the items are interrelated.

Discussion ensued with regard to procedures.

Mr. McMillan suggested that there be separate public hearings with testimony and then move to incorporate the testimony from the prior hearing into the record of the subsequent hearing.

Mr. Jones provided the Commissioners with a book (copy received and filed) containing the information from the agenda packet. He directed the Board to a summary (Tab B) of staff's recommendations to the Board of Adjustment and stated that staff has considered those recommendations for this appeal. He stated that the attached complaints (Tab C) from the neighbors were broken down into issues and someone was assigned to take care of those issues. He noted that a letter (Tab D) from Tom Waters, Seminole County Environmental Programs Manager, indicates that most of the complaints were unfounded. He stated that the complaints that had merit, such as the environmental issues and noise pollution, were addressed and corrective action was taken on five items.

Mr. Jones directed the Board to Tab I, Reasons for Appeal, and asked that they review that. He reviewed the Engineering Summary (Tab J), Plans (Tab K) and Proposed Traffic Flow (Tab L). He stated that the Environmental Report (Tab M) shows that there is no contamination of any sort on the property that has not been addressed. He stated that Noise Pollution Study Report (Tab N) will be explained later. With regard to the Affidavit and Employee Time Records (Tab O), Mr. Jones stated that this is important because one of the complaints concerned noise at 12:00 at night and 7:00 in the morning; and these records show that no one was on site at that time. He said that the Landscape Plans (Tab P) will be explained later. He stated that he has support letters from Siemens and B.A.S. Auto.

Jeff Schaffer, Weaver Boos Consultants, addressed the Board to state that this is not a solid waste facility that would be regulated by Florida Administrative Code Chapter 62. He explained that with regard to the proposed improvements to the northern parcel, under the exemption included in the Administrative Code for the water management district, they are not required to do any sort of stormwater quality improvements or stormwater quantity improvements on the northern parcel. Everything that they are proposing to do is voluntary in nature.

Mr. Schaffer described some of the proposed pollution prevention measures such as putting specially designed inserts into the inlets that catch debris and hydrocarbons. He described a gravel filter bed that includes wetlands plants that will be used on the east side of the northern parcel and explained how it will work. He pointed out that the proposed use for this property has been in place since 1993.

Mr. Schaffer reviewed an Evaluation of Surface Water Quality (copy received and filed) which was prepared by the City of Casselberry Public Works in March of 2011 that looks at the water quality in Trout Lake. Trout Lake has the lowest count of any heavy metals of the lakes within Casselberry that were studied and the seconded lowest turbidity. He noted that the use, which has been in place since 1993, does not appear to be adding to any pollution in the lake.

Maxwell Spann, Land Image Consulting, addressed the Board to review the landscape plan that he created. He advised that the owner is going above and beyond what is required on the site. He advised that on the northern side of the site they are asking for an 11-foot buffer. He described the 10-foot tall masonry buffer wall and the 14 trees that will be added to the northern property line.

Upon inquiry by Commissioner Horan, Mr. Spann stated that the wall will be 334 feet long and will be a pre-cast, pre-stressed concrete wall.

In regard to water quality, Mr. Spann explained the gravel filter and landscaping additions will metabolize the impurities that are purported to be going towards the lake and into the groundwater from this site.

Stephen Crotty, Environmental Engineer with PM Environmental, addressed the Board to state that he is a professional geologist. He stated that his company conducted a noise contour survey. They measured the noise measure levels along the eastern boundary along with the pieces of equipment that were on the south parcel, and then each of the four property corners offsetting out 20 feet, 40 feet, 80 feet and 160 feet in order to get a contour of the noise levels. He advised there were some initial readings of 72 dB which were intermittent where a truck would rev up and then drop below 65 dB. Along the eastern boundary there were no levels above 65 dB. He described the readings at the property corners and stated that traffic caused more noise on the noise study than what was on the property.

Mr. Crotty described the Phase I and Phase II Environmental Site assessment that was done on the north property.

Jerome Hayes, General Manager of GLE Scrap, addressed the Board to give an overview of the daily operations at the subject property. He stated that employees are in their work stations by 7:45 a.m. and fire up the equipment to start processing. The gates don't open until 8:00 a.m. He stated that the only time anything would be happening before 7:00 a.m. or after 5:00 p.m. is if there is a truck driver that needs to let himself in or out of the gate. He described the end of the day operations and stated that they begin to put the processing equipment and bailers away at 4:30 p.m.

Upon inquiry by Commissioner Henley, Mr. Hayes stated that on average, there are anywhere from 89 to 115 customers a day. He stated that daily there are 10 to 15 semi-trucks bringing in material. There are 40 to 50 semi's exiting out per month with scrap that has been bailed and processed.

Upon inquiry by Commissioner Henley, Mr. Hayes advised there would be no processing on the new site. He explained how the items stacked in the front at 294 Lyman will be moved away from the frontage on the road and stored at 295 Lyman.

Using the map in Tab P, Mr. Hayes demonstrated the current operation and how the new operation will work. He stated that being able to have a scale will enhance the business.

Upon inquiry by Commissioner Henley, Mr. Crotty stated that the County's noise ordinance is 64 dB which is like a lawn mower or general residential traffic. Upon inquiry by Chairman Carey, he advised that the traffic noise reading at the corner of 427 was 72 dB. He stated that the noise on any road in Casselberry or Seminole County with traffic would exceed the noise level at this site. Discussion ensued with regard to noise.

Mr. Jones stated that there are stormwater drains in the front of both of the lots. With regard to moving these drains, they would like to move the fence back 12 feet and widen the sidewalk for safety purposes of the children. Commissioner Henley stated that since there is no sidewalk and the fence has a screen on it with a zero setback, he asked the applicant for a 25-foot setback, which would give the traffic coming out of the gates more time to recognize children walking. Since the storm drain was there, Commissioner Henley stated he agreed to the 12-foot setback for the fence. Discussion ensued with regard to the sidewalk and the setbacks.

Aivars Nollendorfs, 12 Lotus Lake Drive, addressed the Board to state that he lives across the lake from the current recycling center. He stated that the noise issue is not too bad. He hears the noise of the claxon of the machinery and the thumping of whatever they are moving around. He stated that his concern is how big the operation will get.

Sandra Smith, Chief Planner for the City of Casselberry, addressed the Board to state that she is here at the behest of her City Commission. She stated that paperwork has been provided as part of the agenda packet as to their concerns. Ms. Smith stated that this site was originally approved for a special exception in 1993 to allow aluminum storage in an enclosed building and was required to be screened from the public right-of-way. Since that time this site has increased the intensity of the use and now allows recycling of computers and the buying and selling of ferrous and non-ferrous materials. She stated that the site has expanded from its original approval for the special exception and now wants to expand to the site to the north. She advised that Casselberry is concerned about the impact for their citizens regarding the noise issues, as well as the aesthetics, and support the Board of Adjustment's recommendation for denial of this special exception.

Commissioner Henley stated that if the Board denies the second lot that is wanted, what Casselberry has now is what they will continue to have because they have a right to do that. He stated that if they allow them to expand, the County will have a better job of protecting the lakes, more noise attenuation and further setbacks from the road. He stated that this Development Order prohibits the processing of computers. All they do is receive them and package them to send out, not break them down. He described the benefits of allowing the applicant to expand. He stated that the Board is trying to improve a situation that they have a right to do.

Ryan Lenzen conceded his time to Roger Lenzen.

Roger Lenzen, 8 Lotus Lake Drive, addressed the Board to state that he is opposed to the request. He stated that in the 16 years that he has lived on Lotus Lake, he has never really heard anything. After GLE bought the property, he sees semi's shipping in loads of material. Mr. Lenzen said that all of the noise is caused by metal being moved around. He says he can feel the ground shake. He advised that the noise is louder than what a train makes.

Mr. Lenzen stated that he is concerned about pollution. He advised that he had provided material that shows that the lake clarity went from 15 feet to 5 feet in the last five years which he believes is a direct result of the recycling center and Sun State Trees. He stated when Sun State Trees had the property, there was a retention pond, which has been filled in; and he believes there should be a retention pond so everything does not flow straight into the lake.

Mr. Lenzen stated the materials that they have are radiators and batteries which have mercury and lead. He explained his concerns with regard to the runoff into the lake. He stated the lake is being polluted and is dying. He described the need for a retention pond.

Mr. Lenzen stated that the noise is bad and advised that he has been awakened numerous times at 6:00 in the morning from metal dropping. He described the traffic hazards. He stated that this used to be a little local recycling plant and now things are being shipped in by semi from all over Florida.

Upon inquiry by Commissioner Dallari, Mr. Schaffer stated that a stormwater pond was installed on the southern parcel recently. With regard to the property to the north, since no new improvements are being proposed, nothing would be required. With respect to the two stormwater inlets, he stated that he did not know exactly where they go but believes one goes back to Ronald Reagan Boulevard. Mr. Schaffer noted that the properties have sheet flow.

Upon inquiry by Commissioner Henley, Mr. Schaffer explained that the clarity of the lake in December of 2010 was equal to the clarity of the lake in September of 2003 and he discussed lake clarities. He stated that as the clarity has decreased recently, the nitrogen and phosphorus levels have increased and suggested that a metals operating business is not contributing to nitrogen and phosphates. Those come from fertilizers from lawns. He described the gravel filter bed that will be used.

Bill Merritt, 452 Misty Oaks Run, addressed the Board to state he lives across the lake from the subject property. He stated that even if the noise does not exceed 65 dB, banging and crushing cans and things like that are irritating sounds to put up with. He is concerned about the noise abatement since they are only talking about a 2 dB to 5 dB attenuation with the proposed trees and suggested a 10-foot wall along the lakeside.

Linda Bryce conceded her time to Robert Bryce.

Robert Bryce, 10 Lotus Lake Drive, addressed the Board to clarify that this business will not be allowed to be open until 11:00 at night. Commissioner Henley stated that the hours will be specified in the order.

Mr. Bryce stated that a couple of weeks ago, they were operating at 4:30 in the morning.

Mr. Bryce described his concerns with regard to the pollution going into the lake from the metals.

Chairman Carey stated that the environmental report indicated that the water coming off these properties is not the source of the problem. Commissioner Henley stated that Sun State Trees, which has been shut down, contributed to the condition that the lake is in now.

Chairman Carey stated that the hours of operation in the proposed development order are from 8:00 a.m. to 5:00 p.m. Monday through Friday and 8:00 a.m. to 2:00 p.m. on Saturday. Upon inquiry by Mr. Bryce, Commissioner Henley stated that Code Enforcement should be contacted if there is a violation of those hours.

Mr. Bryce described the beeping from the forklift that he hears in the morning. Commissioner Henley stated that he noticed, when he was at the property, that some of the beeping is coming from another industry on Anchor Road.

Upon inquiry by Commissioner Dallari, Mr. Jones discussed the lake study that was done in March of 2011 by Casselberry and stated that another study will be done 30 days after the project is finished and submitted to the County.

Glenda Smotherman's name was announced and it was determined that she was not in attendance.

Mr. Jones stated that he had just been told that the drain lines do go to the retention pond, but he will have that verified.

No one else spoke in support or in opposition.

Speaker Request Forms were received and filed.

Aerial maps, Site Plan C.1 and C.2, photographs of the property and proposed site improvements were received and filed.

Memorandum from Nicole Guillet submitting an Affidavit in Support (from Jerome Hayes) of the Application was received and filed.

Chairman Carey verified with Mr. Jones that he has reviewed the additional revised comments in the Revised Development Order.

Motion by Commissioner Henley, seconded by Commissioner Horan, to grant the appeal, thereby overturning the Board of Adjustment’s decision in denying an amendment to an existing special exception for a recycling center in the M-1 (Industrial) district, at 295 Lyman Road, located southeast of the intersection of County Road 427 and Lyman Road, as described in the proof of publication, Nathaniel Zack; and approval of Revised Development Order, as shown on page _______.

Districts 1, 2, 3, 4 and 5 voted AYE.

BOARD OF ADJUSTMENT APPEAL/Nathaniel Zack

Proof of publication, as shown on page ________, calling for a public hearing to consider a request to Appeal the Board of Adjustment’s decision to deny a variance to the required front yard landscaped green area from 25 feet to 0 feet in the M-1 (Industrial) zoning district at 295 Lyman Road; located southeast of the intersection of CR 427 and Lyman Road, Nathaniel Zack, received and filed.

Chairman Carey advised that all of the testimony from the above item will be made a part of the public record for this item.

Kathy Hammel, Planning and Development Division, presented the request for an appeal of the Board of Adjustment’s decision to deny a variance.

Mr. Jones asked that this appeal be approved with the condition that was placed on it, that it be moved back for the sidewalk.

Sandra Smith, Chief Planner for the City of Casselberry, stated that she is opposed to this request since the request to eliminate the 25-foot wide landscape front yard does not meet the requirements or criteria that are generally provided for in a variance approval. Ms. Smith stated that she supports staff's recommendation for denial as well as the Board of Adjustment's denial of the variance request.

Commissioner Henley asked if staff's position is the same as it was originally. Ms. Hammel stated that staff recognizes that with regard to the Land Development Code criteria for granting this variance, this application would not meet the criteria; but granting the variance would create a greenscape landscape area. With the removal of the existing fence from the zero-foot setback where it is currently located, as part of this site plan approval for the variance, it will relocate it to 12 feet which would eliminate line-of-sight safety issues for the children passing by. Because it can then be tied to the variance, it eliminates the use of storage within the greenscape area. It only approves the variance per the site plan.

Chairman Carey clarified that the recommended conditions of approval on page 3 of staff's report would apply if the Board decides to overturn the BOA's decision.

No one else spoke in support or in opposition.

Speaker Request Form was received and filed.

Motion by Commissioner Henley, seconded by Commissioner Dallari, to overturn the Board of Adjustment’s decision to deny a variance to the required front yard landscaped green area from 25 feet to 0 feet in the M-1 (Industrial) zoning district variance at 295 Lyman Road, located southeast of the intersection of County Road 427 and Lyman Road, as described in the proof of publication, Nathaniel Zack; to go to a 25-foot setback with the fence moved back to 12 feet because of the locations of the drains.

Under discussion, Ms. Guillet proposed that the Board overturn the denial of the variance. She stated that the issue of moving the fence back was dealt with in the Special Exception.

Commissioner Henley amended his motion to overturn the Board of Adjustment’s decision to deny the variance. Commissioner Dallari agreed to the amendment; Development Order, as shown on page _______.

Districts 1, 2, 3, 4 and 5 voted AYE.

REGULAR AGENDA (continued)

Kathy Hammel, Planning and Development Division, presented a request to waive the Active/Passive buffer standards for a recycling center in the M-1 (Industrial) zoning district, Nathaniel Zack. She stated this request is in association with the Special Exception (Item #28) that was approved.

Ms. Hammel stated that staff recommends approval of this item based on the conditions of an 11-foot landscape buffer along the north property line containing a 10-foot concrete wall and two canopy trees per 100 linear feet running adjacent to the residential zoning district and an 11-foot building setback for the outdoor storage area along the north property line adjacent to the residential zoning district. She advised that staff would like to omit the third condition (stacking of materials) contained in the staff report since it was covered in the Special Exception.

Motion by Commissioner Henley, seconded by Commissioner Van Der Weide, to approve the request to waive the Active/Passive Buffer associated with an amended Special Exception in the M-1 (Industrial) zoning district located southeast of the intersection of County Road 427 and Lyman Road, Nathaniel Zack, with staff’s recommendations,.

Districts 1, 2, 3, 4 and 5 voted AYE.

Commissioner Henley advised that a response will be sent to all the people who contacted his office concerning the action taken today and what the requirements of the business will be. Code Enforcement’s number will be included in case these requirements are violated.

Commissioner Dallari left the meeting at this time.

PUBLIC HEARINGS (Continued)

VOLUNTARY BILLBOARD AGREEMENT/Beech Outdoor Advertising

Proof of publication, as shown on page ________, calling for a public hearing to consider approving a Voluntary Billboard Agreement between Seminole County and Beech Outdoor Advertising, for a proposed billboard to be located west of Interstate 4, approximately 1.5 miles north of the intersection of E.E. Williamson Road and Interstate 4, Beech Outdoor Advertising, received and filed.

Brian Walker, Planning and Development, addressed the Board to present the request to enter into a voluntary billboard agreement with Seminole County to allow for the construction of one non-conforming dual-faced billboard located west of Interstate 4. He stated that staff recommends approval of this item.

Chairman Carey clarified that this item was previously approved by the Board and is only back before them because the applicant did not sign the agreement before the 60-day time expired.

Attorney Frank Kruppenbacher, 9064 Great Heron Circle, addressed the Board to advise that they have been able to get through the bureaucracy in Tallahassee and are ready to go. He stated they would appreciate the Board’s consideration in giving them the opportunity to execute this agreement.

Commissioner Dallari reentered the meeting at this time.

No one spoke in support or in opposition.

District Commissioner Carey recommended approval of the request.

Motion by Commissioner Dallari, seconded by Commissioner Van Der Weide, to approve the Voluntary Billboard Agreement, as shown on page _______, between Seminole County and Beech Outdoor Advertising, for a proposed billboard to be located west of Interstate 4, approximately 1.5 miles north of the intersection of E.E. Williamson Road and Interstate 4, and authorize the Chairman to execute the Voluntary Billboard Agreement, as described in the proof of publication, Beech Outdoor Advertising, as presented.

Districts 1, 2, 3, 4 and 5 voted AYE.

BOARD OF ADJUSTMENT APPEAL/Hassan Yazdiananari

Proof of publication, as shown on page ________, calling for a public hearing to consider a request to Appeal the Board of Adjustment’s decision to deny a variance to a rear yard setback from 30 feet to 7 feet for an existing shed in R-1 (Single Family Dwelling) district; located at 189 Jay Drive, approximately 1500 feet north of SR 436, Hassan Yazdiananari, received and filed.

Denny Gibbs, Planning and Development Division, addressed the Board to present the request. Ms. Gibbs informed the Board that since the Board of Adjustment’s action, a letter of support was received from one neighbor and a request to withdraw support from another neighbor. She stated that staff recommends that the Board of Adjustment’s decision be upheld and requested that the staff report be made part of the record.

Upon inquiry by Chairman Carey, Ms. Gibbs stated that an existing shed does show on the survey. She advised that the applicant has taken down a good part of the existing shed and is rebuilding it.

District Commissioner Van Der Weide stated that his understanding is that the previous owner did not have a permit for the shed and that the applicant has gotten caught up in the web of bureaucracy.

Hassan Yazdiananari, the applicant, addressed the Board to explain why he wants to repair the existing shed. He stated that he is not moving the location of the shed.

Upon inquiry by Chairman Carey, Mr. Yazdiananari stated he is rebuilding the structure right where it was before and is not enlarging it.

No one spoke in support or in opposition.

Speaker Request Form was received and filed.

Motion by Commissioner Van Der Weide, seconded by Commissioner Horan, to grant the appeal, thereby overturning the Board of Adjustment’s decision of denying a variance to a rear yard setback from thirty (30) feet to seven (7) feet for an existing shed in the R-1 (Single Family Dwelling) district at 189 Jay Drive, as described in the proof of publication, Hassan Yazdiananari; and approval of Development Order, as shown on page _______.

Districts 1, 2, 3, 4 and 5 voted AYE.

BOARD OF ADJUSTMENT APPEAL/Chad Dunbar, et al

Proof of publication, as shown on page ________, calling for a public hearing to consider a request to Appeal the Board of Adjustment’s decision to approve variances to the maximum wall height from 6 feet 6 inches to 8 feet for fifteen (15) lots in the R-1AAA (Single Family Dwelling) zoning district; located on the south side of SR 434 between Robert Street and Palm Springs Drive, Chad Dunbar, et al, received and filed.

Kathy Hammel, Planning and Development Division, presented the request.

District Commissioner Henley stated that he had asked that the Board consider this issue. He was not opposed to the wall but was concerned about how the corridor was going to look once the huge oak trees were taken down. Commissioner Henley stated that after further research, he learned that there are 15 property owners who already have approvals that were sent out by a previous planning director who is no longer on staff. He stated that in view of that information, he does not want to compromise the Board's integrity and recommends that the appeal be withdrawn.

Motion by Commissioner Henley, seconded by Commissioner Van Der Weide, to withdraw the request to Appeal the Board of Adjustment’s decision to approve variances to the maximum wall height from 6 feet 6 inches to 8 feet for fifteen (15) lots in the R-1AAA (Single Family Dwelling) zoning district; located on the south side of SR 434 between Robert Street and Palm Springs Drive, as described in the proof of publication, Chad Dunbar, et al.

Under discussion, Chairman Carey advised that she did have two Speaker Request Forms. She confirmed that Mr. Rippey and Mr. Roy supported the approval of the wall and advised that since the appeal was withdrawn, there was no longer any reason to take public testimony.

Arthur Rippey, 1401 Windsor Avenue, addressed the Board to state that there has been discussion that the County would not take responsibility and control of building the wall and maybe the residents would have to build it. He stated he does not agree with that.

Mr. McMillan advised that that item is not part of this agenda item and will come back to the Board later. He stated that the matter will be negotiated with the homeowners and come back. He stated that the HOA had requested that the two items be separated and not dealt with at the same time.

Districts 1, 2, 3, 4 and 5 voted AYE.

Speaker Request Forms were received and filed.

LEGISLATIVE UPDATE

Chairman Carey advised that in light of the time there will be no Legislative Update.

CHAIRMAN’S REPORT

Chairman Carey stated that if there were no objections, she will serve as liaison with staff to work on the redistricting items.

Commissioner Henley objected and stated that that was a departure from what had been done in the past. He described what happened in the past.

Chairman Carey stated that she knew that the direction of the Board was to keep everyone in their districts, School Board as well as County Commission; and she believes in the past Commissioner Morris had acted as liaison. Commissioner Henley advised that Commissioner Morris was liaison to the School Board. Discussion ensued with regard to how the Board had dealt with this matter in the past.

Upon inquiry by Commissioner Dallari, Chairman Carey stated that she would be interacting with the School Board to ensure that they would not be taken out of their districts.

Upon inquiry by Commissioner Van Der Weide, Joe Forte, Acting County Manager, advised that a team has been put together with Nicole Guillet and Melvin Barnes (GIS). He stated that Mr. Barnes has put together four examples of redistricting options. Mr. Forte stated that the basic understanding is that each Commissioner and each School Board member will stay in their district.

Commissioner Henley suggested that if staff has a question, they should go to whoever's district they have a question on.

-------

Chairman Carey distributed a letter (received and filed) that she sent to TravelCLICK. She stated that this was a request for a Letter of Preservation of Inducement from Bill McDermott, Economic Development.

-------

Chairman Carey stated that as a member of the Florida Association of Counties’ Board of Directors, she will be attending their conference. She requested that her registration fee be paid by the County. She also advised that Commissioner Horan will be attending for one day of the conference.

Motion by Commissioner Henley, seconded by Commissioner Van Der Weide, to pay the Florida Association of Counties Conference registration fees for Commissioners Carey and Horan.

Districts 1, 2, 3, 4 and 5 voted AYE.

-------

Chairman Carey advised that at the last meeting she was directed to negotiate a plan with Mr. McMillan that allowed him to be available in the future for consultation. She stated that they probably would not have a new county attorney until late July or August and had talked to Mr. McMillan about having six months from the time that the new attorney arrived. What they had talked about was his 405 hours of sick leave.

Chairman Carey explained that under the County's policy and the County Attorney's policy, an employee is allowed to be paid for up to 960 hours of accrued PTO. She stated that at the time that Mr. McMillan entered DROP, he sold back 500 hours and still had 460 hours of PTO. On June 2, Mr. McMillan's departure date, he will have 542 hours of PTO. The excess number that he will have is 82 hours.

Chairman Carey stated that when the discussion was had about the pay, it was specifically about the 504 hours of sick leave. She explained the County's PTO policy with regard to sick leave. She stated that the policy says specifically that these hours are not eligible for payment upon separation and shall be forfeited. Chairman Carey noted that she had gotten feedback about this matter.

Mr. McMillan withdrew the request and stated that he will be leaving on June 2.

Commissioner Dallari stated that Mr. McMillan has done a phenomenal job and he wishes him well.

Mr. McMillan stated that he did not want to get into negotiations, that it had been proposed to him that the Board wanted him to be available and he had suggested a way to make it happen.

Commissioner Van Der Weide stated that it would be a mistake to not have Mr. McMillan around on a consulting basis, which would be for the good of the County and the citizens.

Commissioner Henley stated to lose Mr. McMillan's historical knowledge and not have him available is not in the best interest of the County.

Chairman Carey stated she did not want to make a recommendation that would set a precedent for other requests that are in the HR Department right now.

Commissioner Van Der Weide stated that he believes that there are only two people that work for the County Commission, the County Attorney and the County Manager. Whatever they do with either one of those does not have to fit in some slot relative to the personnel department. He believes that Mr. McMillan will be needed, even if it is only on a call basis.

Commissioner Dallari stated that they could figure out an hourly rate; and if anything comes up, they can call him.

Mr. McMillan reminded the Board that he has withdrawn the request.

Discussion ensued.

Commissioner Horan stated that if he was the new County Attorney coming in, he would want to be able to have a certain amount of time and counsel with the County Attorney who is leaving and believes some kind of an arrangement should be made to be able to accommodate that particular person who is coming in. He stated that in addition to the institutional knowledge of Mr. McMillan, there are a number of pending legal matters that they have right now. Given the value of the counsel that Mr. McMillan can give to the new County Attorney, he hopes something can be worked out to allow him to be contacted on some kind of basis that really is in the best interest of the people of the County.

Upon inquiry by Chairman Carey, Mr. McMillan stated that he believed he had reached an agreement with Chairman Carey.

Commissioner Henley stated that it seems like Chairman Carey's discussion with Human Resources may have played a part in this. He believes they are talking about additional services that they are trying to work out here and Human Resources has nothing to do with that.

Chairman Carey asked Mr. McMillan if he would be objectionable to working out something to be available after the fact on some hourly rate or some flat fee. Mr. McMillan stated he had made an offer that he thought was legitimate, straightforward, fair and uncomplicated. He did not want to get into the position of having to negotiate with the Board and an organization that he has served for 32 years and get into an adversarial kind of negotiation.

Chairman Carey stated that Mr. McMillan had provided two offers; one had to do with PTO and one had to do with accrued sick leave. She stated that she would not be supporting the accrued sick leave offer and explained her reasons. She stated if Mr. McMillan doesn't want to talk about splitting the two, PTO and sick leave, the discussion is over and Mr. McMillan will retire. She stated if Mr. McMillan wants to discuss the excess PTO, the Board can do that if they want. Discussion ensued.

Commissioner Dallari suggested that since everything has been withdrawn and there is no motion, the Board should move on.

COMMUNICATIONS AND/OR REPORTS

The following Communications and/or Reports were received and filed:

1. Letter dated April 20, 2011 to Seminole County Commission from Richard Casselberry re: anti-tethering ordinance.

2. Letter dated April 21, 2011 to Seminole County Board of County Commissioners from Roger Lenzen re: 295 Lyman Road recycling facility.

3. Copy of letter dated April 25, 2011 to Ms. Pam Pfeifer, Office of the Governor, from Jack Schluckebier, City Manager, City of Melbourne, re: review of the East Central Florida Regional Planning Council 2060 Plan.

4. Letter dated April 25, 2011 to Commissioner Brenda Carey from St. Johns River Alliance requesting payment of dues for 2011.

5. Letter dated April 26, 2011 to Commissioner Brenda Carey, Chairman, from Barbara Lipscomb, City Manager, City of Casselberry, re: 295 Lyman Road – recycling center variance and special exception appeal.

6. Copy of letter dated April 26, 2011 to Larry Dale, Sanford Airport Authority, from Chairman Brenda Carey re: Sanford Airport Noise Abatement Committee (SANAC) appointment of Krysty Carr.

7. Letter received April 29, 2011 to Commissioner Brenda Carey from Allie Davis re: litter and recycling strategies in Seminole County.

8. Letter dated April 29, 2011 to Commissioner Brenda Carey from Diane Pickett Culpepper, Brighthouse Networks, re: programming changes.

9. Copy of letter dated May 3, 2011 to Joel Gunter, Enterprise Florida, from Chairman Brenda Carey re: request for letter of preservation of inducement – TravelCLICK.

10. Letter dated May 4, 2011 to Seminole County Commission from Louise Gusso re: Knollwood 434 wall.

11. Notice of Public Hearing from the City of Lake Mary, re: First Reading May 19, 2011, and Second reading, June 2, 2011 - Colonial Center Heathrow (HIBC).

12. Notice of Public Hearing from the City of Lake Mary, May 19, 2011 – to consider a conditional use approval within the M-1A district at 115 Commerce Street.

DISTRICT COMMISSIONERS’ REPORTS

Commissioner Henley advised that he attended the Congress of Regional Leaders’ meeting last week. He stated that during that meeting, the regional water status was discussed which has not changed much from the time that the Board responded to their questionnaire. Since they didn't get a tremendous amount of responses, they are asking for a regional meeting of people to discuss the regional water situation.

Commissioner Henley stated that the other thing that came up at that meeting that concerned him is the formation of a group entitled “Open for Business”. It was brought forth by someone from the Associated Building Contractors and is composed of the Associated Builders, the Realtors Association and is being headed up by myregion.org. He described a questionnaire that was sent out by this group and the results. A major concern was that some of these companies do business with four different counties and the circumstances are different, that none of them are alike.

Commissioner Henley stated that a mass meeting of all of the seven counties was suggested to discuss the areas of impact fees, permitting, and regulations in general. A meeting is being called on May 26 to discuss these areas.

Commissioner Horan stated that he has worked for years with the Associated Builders and Contractors and the Home Builders Association. If someone from the Board is needed to serve, he stated he will volunteer for that duty.

-------

Commissioner Dallari stated that the 2060 Strategic Regional Policy Plan is on the consent agenda at tomorrow’s MetroPlan meeting. He requested direction from the Board so he can act accordingly. He believes there were some issues that this Commission has stated that need to be addressed and would like to ask the MetroPlan Board to pull that for further review. Commissioner Dallari stated that he just wants to be sure when he pulls it off the consent agenda that there is no one on this Board who will be upset with his motion to do that. No objections were voiced.

COUNTY MANAGER’S REPORT

No Report.

COUNTY ATTORNEY’S REPORT

Mr. McMillan stated that the 70.51 statute was adopted in 1995. Commissioner Dallari requested that Mr. McMillan research why this year is the first year that they have seen these proceedings.

Mr. McMillan stated that the secondary metal ordinance statutes failed in the Legislature. He stated that the Board, a month ago, authorized a public hearing on one that was brought to the Board for authorization to advertise. They weren't going to advertise until they learned whether or not they had been preempted. Mr. McMillan stated he will get with Mr. Forte to schedule when that can come to the Board for consideration.

-------

There being no further business to come before the Board, the Chairman declared the meeting adjourned at 6:35 p.m., this same date.

ATTEST:______________________Clerk_____________________Chairman

er/js