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.
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Motion by Commissioner Henley,
seconded by Commissioner Dallari to adopt appropriate Resolution #2011-R-88, as
shown on page _________, recognizing the week of May 7th through May
15th 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.
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Motion by Commissioner Horan,
seconded by Commissioner Dallari to adopt appropriate Resolution #2011-R-89, as
shown on page _________, proclaiming the week of May 16th through
May 20th 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.
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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.
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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.
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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.
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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.
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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.
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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
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