A REGULAR MEETING OF THE BOARD OF COUNTY COMMISSIONERS

FEBRUARY 22, 2005

The Lake County Board of County Commissioners met in regular session on Tuesday, February 22, 2005, at 9:00 a.m., in the Board of County Commissioners’ Meeting Room, Lake County Administration Building, Tavares, Florida. Commissioners present at the meeting were: Jennifer Hill, Chairman; Catherine C. Hanson, Vice Chairman; Welton G. Cadwell; Debbie Stivender; and Robert A. Pool. Others present were: Sanford A. “Sandy” Minkoff, County Attorney; William “Bill” Neron, County Manager; Wendy Taylor, Executive Office Manager, Board of County Commissioners’ Office; and Toni M. Riggs, Deputy Clerk.

INVOCATION AND PLEDGE OF ALLEGIANCE

Commr. Cadwell gave the Invocation and led the Pledge of Allegiance.

AGENDA UPDATE

Mr. Bill Neron, County Manager, stated that the Board members have been presented with Addendum No. 1, which has three items of departmental business.  Mr. Neron stated that he would like to pull Tab 23 from the regular agenda, which pertains to the Northeast Community Park, and it will be rescheduled for next Tuesday’s meeting.

Mr. Sandy Minkoff, County Attorney, referred to Tab 21 and stated that Vacation Petition Number 1042 is not in the Harbor Hills area; it is the Seidle vacation in the South Lake area.  Staff is verifying the legal ad for the hearing today.

Commr. Cadwell stated that, under his business, he may have an item that will require Board action, but he will wait until they get to that point on the agenda to add it, because he is waiting on further information.

MINUTE APPROVAL

On a motion by Commr. Cadwell, seconded by Commr. Pool and carried unanimously by a 5-0 vote, the Board approved the Minutes of December 21, 2004, Regular Meeting, as presented.

On a motion by Commr. Stivender, seconded by Commr. Hanson and carried unanimously by a 5-0 vote, the Board approved the Minutes of January 11, 2005, Regular Meeting, as presented.

On a motion by Commr. Hanson, seconded by Commr. Pool and carried unanimously by a 5-0 vote, the Board approved the Minutes of January 18, 2005, Regular Meeting, as presented.

On a motion by Commr. Stivender, seconded by Commr. Pool and carried unanimously by a 5-0 vote, the Board approved the Minutes of January 25, 2005, Regular Meeting, as presented.

On a motion by Commr. Pool, seconded by Commr. Hanson and carried unanimously by a 5-0 vote, the Board approved the Minutes of February 1, 2005, Regular Meeting, as presented.

COUNTY MANAGER’S CONSENT AGENDA

            In regard to Tab 3, Commr. Hanson questioned whether staff had an update on the Community Development Block Grant (CDBG) dollars.

            Mr. Bill Neron, County Manager, stated that, in his review of information from the National Association of Counties, the President’s budget proposes cutbacks in the funds and, until Congress takes action on the budget, staff will not know the status of those funds.

            On a motion by Commr. Stivender, seconded by Commr. Hanson and carried unanimously by a 5-0 vote, the Board approved the County Manager’s Consent Agenda, Tabs 2 through 20, as follows:

            Interlocal Agreement/City of Tavares/Impact Fees

            Request from Budget for approval of Interlocal Agreement with City of Tavares relating to collection of Lake County impact fees by the City.

 

            Community Development Block Grant Partnership Agreement

            Lake County Health Department

            Request from Community Services for approval of an Amendment to the Community Development Block Grant (CDBG) Partnership Agreement with Lake County Health Department and authorize the Chairman to sign the Amendment and execute the amended contract.

 

            Proclamation/Step Up Florida Day

            Request from Community Services for approval of Proclamation 2005-17 declaring February 23, 2005 as “Step Up Florida Day” in Lake County.

 

            Utility Easement/Ford Commerce Park/Sumter Electric Cooperative

            Request from Economic Development and Tourism for approval to relocate power poles into the utility easement between Lots 29 and 30 in the Ford Commerce Park and pay Sumter Electric Cooperative, Inc. $25,026.48 for the service.

 

            Grant/U.S. Department of Agriculture/Central Water System/Shockley Heights

            Request from Environmental Services for approval to pursue a grant from the U.S. Department of Agriculture, Rural Authority, in the amount of $1,000,000.00 to provide a central water system to the residents of Shockley Heights.

 

            Status Change/Environmental Services

            Request from Environmental Services for approval of status change of Part-time (1300 annual hours) to Full-time (2080 annual hours) for the Office Associate II Position Number 0016 assigned to the Department of Environmental Services.

 

            Planning Periods/Comprehensive Plan Update

            Request from Growth Management for approval of recommended Planning Periods for Comprehensive Plan Update.

 

            Corrected Satisfaction and Release of Fine/Stringham

            Request from Growth Management for approval and execution of a corrected Satisfaction and Release of Fine for Marilyn and Jerry Stringham, due to an incorrect page number listed on the previous release.

 

            Award Contract/Long Range Plan of Services/Library Development Solutions

            Request from Procurement Services for approval to award the contract for Long Range Plan of Services for Libraries to Library Development Solutions in accordance with RFP Number 05-008 for $27,970.00.

 

            Award Contract/Herbert Halback, Inc./VITETTA

             Request from Procurement Services for approval to award the contract for RSQ 04-096, On-Call Architectural and Engineering Services, General Architecture and Planning Services to Herbert Halback, Inc., and for General Architecture to VITETTA, each task assignment on these continuing contracts is limited to a maximum total cost of $50,000.00.

 

            LifeStream Behavioral Center, Inc./Lake County Transit

            Transportation Disadvantaged Services

            Request from Procurement Services for approval to extend the contract with LifeStream Behavioral Center, Inc. d/b/a/ Lake County Transit for transportation disadvantaged services for an additional two months.

 

            Letter of Credit for Performance/Lake Yale Woods

            Request from Public Works for approval and authorization to release a Letter of Credit for Performance in the amount of $38,060.00 posted for Lake Yale Woods.  Lake Yale Woods consists of 40 lots – Commission District 5.

 

            Final Plat/Deer park/Letter of Credit/Developer’s Agreement/Design World, Inc.

            Resolutions/Roads

            Request from Public Works for approval and authorization to accept the final plat for Deer Park and all areas dedicated to the public as shown on the Deer Park plat; accept a letter of Credit for Maintenance in the amount of $15,379.35; execute a Developer’s Agreement for Maintenance of Improvements between Lake County and George Diez, as President of Design World, Inc.; and execute Resolution 2005-18 accepting the following roads into the County Road Maintenance System:  Deer Park Avenue (County Road Number 7483A).

 

            Performance Bond/Maintenance Bond/Developer’s Agreement/Siena Home Corporation

            Resolution/Roads

            Request from Public Works for approval and authorization to release a Performance Bond in the amount of $139,728.00; accept a Maintenance Bond in the amount of $13,365.58; execute a Developer's Agreement for Maintenance of Improvements between Lake County and Siena Home Corporation; and execute Resolution 2005-19 accepting the following roads into the County Road Maintenance System: Pinyon Drive "Part" (County Road Number 1046) and Moonflower Court "Part" (County Road Number 1046D) all relating to Spring Valley Phase VIII. Spring Valley Phase VIII consists of 50 lots – Commission District 2.

 

            Federal Highway Administration Emergency Relief Program Agreements/Hurricanes

            Request from Public Works for approval and signature on Federal Highway Administration Emergency Relief Program Agreements (ERPA) for hurricane damage in Lake County.

 

            Final Plat/Overlook at Lake Louisa/Letter of Credit/Developer’s Agreement

            Request from Public Works for approval and authorization to accept the final plat for the Overlook at Lake Louisa, Phase I and all areas dedicated to the public as shown on the Overlook at Lake Louisa, Phase I final plat; accept a Letter of Credit in the amount of $298,465.00; and execute a Developer's Agreement for Construction of Improvements between Lake County and the Greater Construction Corporation. The Overlook at Lake Louisa, Phase I consists of 95 lots – Commission District 2.

 

            Final Plat/Plantation at Leesburg/Laurel Valley Village

            Request from Public Works for approval and authorization to accept the final plat for Plantation at Leesburg, Tract G, Phase 1, Laurel Valley Village and all areas dedicated to the public as shown on the Plantation at Leesburg, Tract G, Phase 1, Laurel Valley Village plat. Plantation at Leesburg, Tract G, Phase 1, Laurel Valley Village consists of 91 lots – Commission District 3.

 

            Resolution/Advertise Road Vacation Petition Number 1040/Cascades of Groveland

            Request from Public Works for approval and signature on Resolution 2005-20 to advertise public hearing for Road Vacation Petition Number 1040 by Cascades of Groveland, Bowyer-Singleton Associations, Inc. to vacate right of way and cease maintenance on a portion of Libby Road Number 3, located in Section 26, Township 21 South, Range 25 East, located in the Groveland area – Commission District 2.

 

            Resolution/Advertise Road Vacation Petition Number 1043/May & Whitaker Family

            Plat of Sarah A. Schwer’s Subdivision

            Request from Public Works for approval and signature on Resolution 2005-21 to advertise public hearing for Road Vacation Petition Number 1043 by May & Whitaker Family Partnership, Ltd. to vacate the lots and rights of way in the Plat of Sarah A. Schwer's Subdivision, located in Section 29, Township 18, Range 26, located in the Grand Island area – Commission District 4.

 

            PUBLIC HEARING - PREPUBLICATION PUBLIC HEARING OF COMMUNITY

            DEVELOPMENT BLOCK GRANT (CDBG) FEDERAL FISCAL YEAR (FFY) 2005

            ACTION PLAN

            Ms. Liz Eginton, Community Development Block Grant Director, addressed the Board and stated that today’s hearing is the start of the Fiscal Year (FY) 2005-06 Community Development Block Grant (CDBG) funding cycle, in preparation for the Federal Fiscal Year (FFY) 2005 Action Plan.  Ms. Eginton stated that the first step is to hold a public hearing prior to publication of the Action Plan, and the intent of the hearing is to provide opportunities for public comment on community needs, program performance, and proposed uses of funds for the coming year.  First she will take a brief look at what has been accomplished to date, and then she will present a preliminary budget concept for FY 2005-06.  After the public has an opportunity to comment on the concept budget, staff will be requesting the Board to approve the budget so that Community Services may move forward to complete next year’s Action Plan.  Ms. Eginton presented an overview of accomplishments noting projects with their urban county partners, and she presented detailed information about their public service projects, and the Community Enhancement Area (CEA) Program and Housing Rehabilitation noting that next year they would like to build on this year’s successes by continuing with their current activities and adding four new activities, Tavares West Main Street Beautification, Astatula project, Lady Lake project, and CEA Paving Assessment Assistance.

            As shown in the backup, Ms. Eginton stated that, for FY 2005-06, the entitlement is estimated to be $1,056,606.00.  They are looking at taking just under $50,000.00 from Uncommitted Carryover funds plus the new money to fund planned activities, program delivery costs, and administration.  Staff is requesting that the Board approve the concept budget, which will allow them to proceed with preparation of the FFY 2005 Action Plan.  Ms. Eginton requested that the public hearing be opened for comments.

            Commr. Hill opened the public hearing and called for public comment.  She recognized Ms. Gail Ash, City Council member, City of Clermont, who was present in the audience.

            Mr. Travis Whigham, Forest Hills Association, addressed the Board and asked whether some of the grant moneys could be used to put shelters over the picnic tables in the Lake Mack Park area.  Mr. Whigham stated that he has also been trying to get a fishing dock at the lake and, even though their neighborhood is very heavily populated, the community does not have the resources to get the things they need.

            Commr. Hanson felt that it would probably be a very good use of the funds, but Mr. Whigham would probably have to coordinate his request with the District Commissioner.     Commr. Cadwell explained that he has talked with Mr. Whigham and his requests can go through the Recreation Grant Program, or the regular budget process for parks and recreation.  He noted that both of these items are on a list with the Parks and Recreation Department, to try and get them in the budget this year.

            Commr Hanson stated that she realizes that the Board fears these dollars will be cut in half and so much of these dollars go towards prescriptive drugs for people that cannot afford them, which is a significant aid to the community, but the people in this particular area cannot afford to help share in the cost of paving roads.

            Commr. Hill called for further public comment.  There being none, the public hearing portion of the meeting was closed.

            On a motion by Commr. Hanson, seconded by Commr. Pool and carried unanimously by a 5-0 vote, the Board approved the proposed uses of FY 2005-06 Community Development Block Grant (CDBG) funds, and the Concept Budget to complete the FFY 2005 One Year Action Plan.

            REPORTS – COMMISSIONER STIVENDER – DISTRICT #3

            RESOLUTIONS/HAYNES CREEK

            Commr. Stivender addressed the item regarding Haynes Creek and noted that Ms. Dottie Keedy, City Administrator, City of Tavares, was present for the agenda item pertaining to Haynes Creek.  She asked Ms. Diane Kamp, Director of Lake County Museums and Curator, to come forward to assist her.  She stated that the Board did get an e-mail from Senator Carey Baker’s Office about this item, and quite a few cities have been helping them with it.

            Ms. Kamp addressed the Board and stated that Captain Melton Haynes was a much respected member of the Lake County community, as well as the State of Florida, and his peers honored him by naming several bodies of water after him, one of them being Haynes Creek.  It was spelled with a “y” as noted.  Sometime during the 1920s or 1930s, a clerical error was made in Washington, and the “y” was changed to an “i” and it was picked up on a lot of the maps and official documents.  She stated that Captain Haynes deserves this honor his neighbors and friends bestowed upon him.

            Commr. Stivender stated that she serves on the Upper Oklawaha Basin Working Group, and there are certain organizations that have spelled it correctly over the years, and she would like approval of a resolution correcting the spelling of Haynes Creek.

            Commr. Stivender made a motion, which was seconded by Commr. Hanson, to approve and authorize the proper signatures on Resolution 2005-23 correcting the spelling of Haynes Creek.

            Under discussion, Commr. Hill stated that she appreciated the historical facts and the renaming of the creek, but there is an area, in District 1, where the businesses are recognized by that name “Haines Creek.”  She wanted to know if they will be requiring them to change their business names from “Haines” to “Haynes” and she wanted to make sure they understood the financial burden, as well as the inconvenience they were placing on everyone in that area, if they change the spelling of the creek, and that it did not mean that the roads, or maps, or addresses will be changed.

            It was clarified that the request is to correct the spelling of the name of the creek only.  Commr. Stivender noted that, on the U.S. Geological survey, it is already spelled “Haynes”.

            Through further discussion, it was explained that the name will not be changed on businesses, unless the business itself makes the change, and the name will not be changed as far as 9-1-1 services.  It was noted that the Water Authority also has a Proclamation, to be sent along with all of the others, to Washington, and they will change all of the signs on the waterways.

            Mr. Sandy Minkoff, County Attorney, pointed out that the Resolution just lends the Board’s support, and he was not sure that they have the actual authority to name it, because it is the federal government that actually issues the names.

            Commr. Hill called for a vote on the motion, which was approved unanimously by a 5-0 vote.

            PUBLIC HEARING – ROAD VACATION PETITION NUMBER 1042

            ROBERT K. SEIDLE – CLERMONT AREA - DISTRICT 2

            Mr. Jim Stivender, Director of Public Works, addressed the Board to discuss Petition Number 1042, a request for approval and execution of Resolution for Robert K. Seidle, by Representative Leonard H. Baird, to vacate a portion of a non-exclusive easement, in South Lake County, located in Section 24, Township 23 South, Range 25 East, in the Clermont area – Commission District 2.   Mr. Stivender reviewed a Special Purpose Survey and explained that the previous easement was vacated some years ago by the Seidles who have a house on the property.  There have been some issues about the rest of the easement being vacated and, because they are now the adjacent owners, there are no ingress or egress issues from that side of the easement; therefore, staff recommends approval to vacate that easement.

            Mr. Sandy Minkoff, County Attorney, stated that the request has been properly advertised, and the adjacent property owners were all noticed.  He pointed out that the cover sheet and agenda were the only items with incorrect information.

            Commr. Hill opened the public hearing and called for public comment.  There being none, the public hearing portion of the meeting was closed.

            On a motion by Commr. Pool, seconded by Commr. Stivender and carried unanimously by a 5-0 vote, the Board approved Petition Number 1042 and execution of Resolution 2005-22 for Robert K. Seidle by Representative Leonard H. Baird, to vacate a portion of a non-exclusive easement, in South Lake County, located in Section 24, Township 23 South, Range 25 East, in the Clermont area – Commission District 2.

            REZONING – PUBLIC HEARINGS – REQUESTS FOR CONTINUANCE

            Mr. Jeff Richardson, Planning Manager, Planning and Development Services, informed the Board that staff had received two written requests for continuance.  One request was included in the backup for Rezoning Case PH#15-05-4, Rouselle & Dorothy Sutton, Jack Spillane, Dennis Benbow, Natalie Windsor & Barn, LLP/Cecelia Bonifay, Esquire, for a 30 day continuance, until  March 29, 2005, due to some scheduling conflicts with key witnesses.  The other pertains to Rezoning Case CUP#05/2/1-2, Mohan and Dora Sawh, a request for a 30 day continuance, until March 29, 2005.

            REZONING CASE PH#15-05-4 – ROUSELLE & DOROTHY SUTTON

            JACK SPILLANE – DENNIS BENBOW – NATALIE WINDSOR & BARN, LLP

            CECELIA BONIFAY, ESQUIRE – REPRESENTATIVE – A TO A-1-20

            TRACKING #18-05-TDR/Z

            Commr. Cadwell stated that, even though Rezoning Case PH#15-05-4 (Barn LLP), as noted, is not in his district, there are certainly a lot of people here today, and everybody is aware of the case, so he feels they should move forward and hear it.

            Commr. Hanson stated that she did not have a problem hearing the case today.  She was not sure what was going to change in this case in 30 days that would be different or what the scheduling problems were that staff referred to earlier.

            Ms. Cecelia Bonifay, Akerman Senterfitt, addressed the Board and stated that she is here on behalf of Barn LLP, which is the entity that owns the subject property.  Ms. Bonifay explained that there are a number of reasons for their request for continuance, and the first reason they would like to submit is due to medical reasons that both the Rossman family, and the Cole family, have experienced recently, therefore, they will not be in attendance today.  Ms. Bonifay stated that she and Mr. Wade L. Hopping, as counsel and co-counsel for Barn, LLP, attended all of the Wekiva hearings, but Mr. Hopping was unable to attend the Zoning Board hearing.  She asked him to be present at this hearing, but today she has a letter from him indicating that he will be unable to attend and testify as an expert witness to many of the comments made at the last hearing.  Ms. Bonifay noted that Mr. Hopping had worked with her on representing the private property owners’ alliance, as well as the interests of Ms. Rossman and Mr. Cole and, despite the personal slams against her by “The Orlando Sentinel” they would probably impugn Mr. Hopping’s integrity, since he also cannot be here today and, of note, after reading the article about the political pressure being put on this Board, Mr. Hopping has written the following:

“I think that it is surprising, unusual and unfair for any public body to refuse an applicant’s request to postpone consideration of its land use issues to a later date, especially when such failure to postpone will prevent co-counsel for the developer to attend the meeting and argue in favor of the developer’s position.”

 

            Ms. Bonifay stated that, in addition, there are some environmental issues that were never raised, discussed, or presented in the staff report and, since there were only about three weeks between the Zoning Board meeting and the meeting today and, since those issues were raised by the opposition, they felt it was necessary to protect their clients’ interest to do some additional work on those issues.  In the staff report, these were clearly not issues, however, at least one or more opponents was highly critical of County staff, as well as the applicant, for not having provided additional environmental data on the record. Ms. Bonifay submitted Mr. Hopping’s letter to the Deputy Clerk, and it was marked as Exhibit A-1 for the applicant.  

            Ms. Bonifay stated that she would like to call Ms. Kathy Allison, the paralegal who works with her who prepared the request for continuance, to testify and to add, for the record, that there have been a number of quotes, which have been taken out of context regarding information about Ms. Melinda Corbett of her office.  Ms. Bonifay pointed out that Ms. Corbett continues to be characterized as an associate, which would imply that she is an attorney, but she is a secretary in the Tavares office for Akerman Senterfitt.

            Ms. Kathy Allison, paralegal, Akerman Senterfitt, testified that she has been working with Ms. Bonifay since May, 1988 and, during that time, they have been required to request numerous continuances in the past for the applicant.  They have also handled hundreds of cases, since that time.  Ms. Allison testified that she could remember only one time that the Board denied a request for a continuance, and it was a situation where one of their witnesses could not be present.  She noted that it was the Sugarloaf PUD/DRI, a very controversial case, and there was a lot of press and public pressure on the Board not to grant a continuance, and the Board denied the request, and they had to go forward with the case.  It was noted that the Board denied the ultimate zoning, and an appeal was taken and won.

            Commr. Hill stated that she understood they were establishing Ms. Allison’s position with Akerman Senterfitt, and the Board hears continuances all the time, and the Board usually grants them, but there have been times when they have not granted them, so they will establish that fact.

            Ms. Bonifay stressed that it is very important to establish this point, because the request for postponement is the only issue before them right now, and it is the practice that is usually employed by this Board.

            Commr. Hill stated that she does not find the postponement of another case to be relevant to this case, and Ms. Bonifay interjected that, at some point, this may be for a court to decide, especially when, in this number of years, and with hundreds and thousands of cases, there has only been one example of a case that she has been involved in where it was denied for the very same reason; a key witness was not available; it was a highly visible case; the Board denied it and made them go forward; and it was appealed and won.

            Mr. Sandy Minkoff, County Attorney, pointed out that, one, the Chairman has ruled as to the relevance but, two, he does not know that the Sugarloaf case was appealed on the basis of the denial of the continuance; it was actually on the merits.  In her response, Ms. Bonifay agreed that the case was denied partly on the merits, and part of that had to do with the witnesses, but Mr. Minkoff pointed out that the appeal was not reversed because the continuance was not granted.

            Ms. Bonifay stated that they have established that this will be prejudicial to the client and, in her opinion, it will involve an abrogation of their right of due process; they will not have those people here today to give all of the needed testimony, which they think is important, and on which this Board should make a fair and considerate opinion in this case.  Ms. Bonifay stated that they will again ask for the continuance.

            Commr. Cadwell pointed out, in his review of the Zoning Board minutes, that the extent of Ms. Nancy Rossman’s testimony was limited to her explaining that Ms. Bonifay was representing them for land use, and Mr. Cary Gaylord was their attorney and contact with the Expressway Authority.  Ms. Bonifay interjected and explained that, at that particular point, there had been other issues raised regarding factual allegations made in the press, and there was the question of whether or not the Board had been influenced by them and, even though these individuals did not testify in the Zoning Board hearing, they would be called to testify today, along with Mr. Hopping.  She also pointed out that there were a number of issues and allegations that were raised by the opponent, if they were to look at the Zoning Board transcript, and Mr. Hopping would be able to address or refute those.

            Commr. Cadwell established that the Board has allowed continuances in the past and, if not for 30 days, to a day certain. He questioned whether there was a shorter time period that would be acceptable.  Ms. Bonifay responded that, if the Board wants to entertain this proposal, she would need to check with Mr. Hopping not knowing his schedule.  Commr. Cadwell affirmed that he hopes the Board will hear the case today but, if they are not going to hear it, then he hopes they will not wait 30 days.

            Commr. Hill stated that she was of the opinion, if the applicants have serious illnesses, the Board could wait until after the Comprehensive Plan is completed and hear the case next year, or at least wait until after the legislative session, because she understands that this is one of the properties in the Wekiva to be purchased by the State, but Ms. Bonifay interjected that this has nothing to do with the Comprehensive Plan; it is a rezoning and a transfer of development rights, and the reference made to the illnesses would be a very specious argument.

            Commr. Hanson stated that this is an important case, and the Board should go ahead and hear it.  She explained that she put her mother in the hospital this morning, so she understands the circumstances, but she is here today.  She stated that Ms. Bonifay knows everything about this case and, having been involved with the Wekiva process, she has concerns with it and, even though it is a tough issue, she does not know that they would gain anything by postponing it.

            Commr. Hill informed the Board that her first choice would be not to postpone the case but, if they have to, they need to designate a specific time, because she did not want to see the applicant come back and ask for another 30 day postponement.

            Ms. Bonifay explained that the first time a request for continuance is made, there are always issues and, with the one exception, as she mentioned earlier, it has always been clear that the Board has denied second and third time requests.  She pointed out that their letter requesting a postponement was submitted February 15, 2005, and it has been posted on the County’s web site since that time.

            Commr. Hill opened the public hearing and called for public comment on the request for postponement.

            Mr. Egor Emery stated that he was here two weeks ago for the Zoning Board hearing, and he is a little stunned that the applicant’s case is falling apart to such a great extent since that time. Mr. Emery stated that, in the nearly 20 years that he has been coming to these meetings, he has seen very few continuances denied, even though he took the time to come to the meeting today. He wonders sometimes which comes first, the public interest, or the need for a continuance.  He stated that it seems like the two are sometimes related; the more people that show up, the more a continuance is needed.  He personally would like to spend his tax money to see the Board defend their position in court, if necessary, and he would really like this case heard today.

            Mr. Keith Schue stated that he is the Wekiva Issue Chairperson for the Central Florida Sierra Club, and they would request that the Board not continue this item, and the reason is that they have all of the information they will ever need to make a proper decision today.  He stated that Section 14.03.03(i) of the Land Development Regulations (LDRs) asks whether the proposed zoning will be in conflict with the public interest and, whether the Board considers this today, or sometime in the future, the answer to that question is going to be the same.  Mr. Schue stated that it cannot possibly be in the public interest to rezone this property and increase its development potential.  For the past three years, state agencies, elected leaders throughout this entire region including the Board members, environmentalists, and developers have worked together diligently to forge an unprecedented agreement, which is now part of the Wekiva Parkway Protection Act, that says they must build the Wekiva Parkway and that they must buy certain lands within the Wekiva Basin around the Parkway for preservation.  It specifically names in the Statute this piece of property, Neighborhood Lakes.  There is no greater testimony, as to what constitutes the public interest as it relates to this property, than when you have every local government, every state agency, and every public official in the region coming together and agreeing that this land should be protected.  It also says something when the Governor signs legislation that says this land is so important that it should receive the highest level of protection.  He stated that, if the Board continues this item, then they are saying maybe the developer can come back at a later time and request rezoning for higher density and, as long as they say maybe, there is little reason for the applicant to discuss the possibilities with the Expressway Authority.  He stated that postponing a decision to say no will not benefit the environment, the region, or the taxpayer.

            Mr. Charles Lee, Senior Vice President, Florida Audubon Society, addressed the Board and explained that personally it will be very difficult for him to get back here in 30 days, because they will be in the middle of a legislative session, and hopefully, during that session, they will be advocating for a little bit more money to be directed to purchasing land in the Wekiva, to possibly help fulfill that commitment, the $25 million offer the Expressway Authority has extended to the Rossmans and Coles, to purchase that property. 

            Ms. Jennifer McMurtray, Transportation and Wildlife Ecology Coordinator, Defenders of Wildlife, addressed the Board and explained how difficult it is for individuals to make arrangements so they can attend a meeting, and sometimes they have to keep making arrangements when items are rescheduled or postponed for different reasons.  She felt it would be advantageous for the County to have a notification system for the general public, because the average citizen really does not know how the process works.  Ms. McMurtray stated that average citizens would not know that some letter is on the web site and, even if they did, it does not mean they know what the Board’s decision is going to be without coming here today, so it really does put the public at a disadvantage.  She requested that the Board deny the continuance.

            Mr. Scott Taylor, Sorrento, addressed the Board and stated that common sense tells him that he does not see what will be gained by the owners’ unfortunate absence today, since they have not taken any great part in the process, and it has been Ms. Bonifay in the forefront all along.  Mr. Taylor stated that he did not feel that Mr. Hopping will be able to undo the science that has been put together over the last two or three years, and he cannot imagine 30 days from now somebody coming up with something that would make this a dramatically different situation for them to consider, therefore, he is asking for disapproval of this continuance.

            Ms. Priscilla Bernardo, Sorrento, addressed the Board and stated that she is very disturbed by this whole situation.  They have been in this process for a very long time, and they have seen the applicant and their representatives, including Ms. Bonifay, fully participating throughout the process, and she is sure they are very well aware of all of the components of the process.  Ms. Bernardo stated that she feels this applicant needs no more time whatsoever and a continuance is not going to change the entire will of the populous of Florida to say that houses are much better than safe and secure drinking water, and the will of the public has clearly been stated throughout the legislation.  She asked the Board to make their decision and move forward.

            Mr. Paul Trembley, Sorrento, addressed the Board and stated that the assertion has been made this morning that, because Ms. Bonifay’s clients cannot be present, more time is needed before the proposed rezoning of Neighborhood Lakes can be presented to the Board.  He questioned whether any of today’s facts would change in 30 days.  The City of Eustis and the City of Mount Dora, as well as the Zoning Board, have already recommended taking a stand to deny this zoning request; the Governor has signed into law legislation indicating that this property should be preserved.  Mr. Trembley questioned whether this property, 30 days from now, will be any less environmentally sensitive than it is today.  He stated that, to slow down this process with delays is not in the public interest, or good for the process, or the people, and he recommended that the Board deny this continuance.

            Mr. Fred Antonio addressed the Board and stated that he is the second property owner to the west of the receiving property in question, and he would like to voice his opinion and say that they should proceed with this matter.  They all know that all of the governmental bodies and others have been very involved with the whole Neighborhood Lakes property, and they know what it means to the Wekiva Basin, and the Board should go ahead and continue with the spirit of Resolution 2001-42 and deal with this issue today.

            Commr. Hill called for further public comment on the postponement.  There being none, the public hearing portion of the meeting was closed.

            Mr. Sandy Minkoff, County Attorney, clarified that the Board has a request from the applicant and, normally, the Board would, by motion, approve or deny that request.

            On a motion by Commr. Hanson, seconded by Commr. Cadwell and carried unanimously by a 5-0 vote, the Board denied the request for a continuance and approved to hear the following case today:  Rezoning Case PH#15-05-4, Rouselle & Dorothy Sutton, Jack Spillane, Dennis Benbow, Natalie Windsor & Barn, LLP/Cecelia Bonifay, Esquire, a request to rezone from A (Agriculture) to A-1-20, Tracking #18-05-TDR/Z.

            Ms. Bonifay addressed the Board and explained that she will need to obtain a court reporter for the hearing, and the Chairman noted that they will accommodate her by placing the case at the end of the zoning agenda.

            REZONING CASE CUP#05/2/1-2 – MOHAN & DORA SAWH - CUP IN A

            TRACKING #20-05-CUP

            Mr. Jeff Richardson, Planning Manager, Planning and Development Services, informed the Board that staff has received a request from, Mr. Mohan Sawh, the applicant, for a 30 day postponement, in Rezoning Case CUP#05/2/1-2.  He explained that the applicant is working with the Agricultural Extension Center and taking into consideration a couple of other options, to determine whether he needs to continue with the request for a Conditional Use Permit (CUP).

            Commr. Pool pointed out that, in the applicant’s letter, it indicates that he is in the process of getting contracts for the purchase of chickens and disposal of the manure from respective companies, but he would not suggest that they buy chickens, at this point.  Mr. Richardson clarified that staff has explained this to the applicant, and he has had a couple of meetings with staff, as well as the agent at the Agricultural Extension Center.

            Commr. Pool stated that he did not mind a 30 day continuance, if there are some issues that the applicant can bring back before them, but he is not going to approve a continuance, so that the applicant can look for chickens.

            Mr. Richardson noted that this is not a current code case, and right now there is nothing on the property except for an existing residential structure.

            Commr. Hill opened the public hearing and called for public comment on the request for a 30 day continuance.  It was noted that the applicant, or representative, was not present.

            Mr. Jeff Rice addressed the Board in opposition to the request for a continuance.  Mr. Rice stated that the Zoning Board and staff have denied the request because of the acreage, and he did not see how they would benefit from a 30 day continuance.  He has a petition signed by over 30 people who are opposed to this chicken farm, whether the applicant has one acre, or 50 acres.  He clarified that the applicant wants to put 1,200 chickens on 2.5 acres and build a 1,000 foot chicken coup.

            Mr. Richardson stated that staff has some clarification to offer to the Board, in regards to the applicant’s request for continuance.  Mr. John Kruse, Senior Planner, Planning and Development Services, has been working with an agent at the Agricultural Extension Center, and the applicant, and they have requested that the applicant establish a manure disposal plan ahead of time, so this is what the applicant is attempting to explain in his letter.

            Commr. Pool stated that, even though they must have chickens and eggs, he would not want a chicken farm nearby, and they need to be in the right location.

            Commr. Pool made a motion, which was seconded by Commr. Stivender, to deny the request for a 30 day continuance of Rezoning Case CUP#05/2/1-2, Mohan and Dora Sawh, CUP in A, Tracking #20-05-CUP, and to hear the case today.

            Under discussion, Ms. Jean Bogart addressed the Board and stated that she lives right across the street from the proposed chicken house.  Ms. Bogart stated that she has lived there for 24 years, and five different families have lived on the subject property, and she has never complained about any of them.  Ms. Bogart explained that she is very sickly and is not financially able to move from her home, but she would move if the applicant puts a chicken house in that location.  She explained that the applicant has 40 acres further down the highway with cows on it, and she wanted to know why the applicant could not put the chicken coup on that same acreage.  The applicant has already told people that he is not going to live on the property and that he is going to push the house down.  Ms. Bogart stated that she moved from Mascotte because of the smell and the flies due to a similar situation.

            Commr. Hill called for a vote on the motion, which was carried unanimously by a 5-0 vote, to hear the case today, as noted.

            RECESS & REASSEMBLY

            At 9:58 a.m., Commr. Hill announced that the Board will take a 15 minute recess.

            REZONING PUBLIC HEARINGS (CONTINUED)

            At 10:15 a.m., Commr. Hill reconvened the meeting and asked staff to proceed with the rezoning agenda.

            COMMISSIONERS

            It was noted that Commr. Hanson was not present for the meeting.

            REZONING CASE PH#5-05-3 – JOHN NELSON/NELSON FAMILY TRUST

            TIM HOBAN AND CARL LUDECKE – R-1 TO R-2 – TRACKING #10-05-Z

            Ms. Jennifer Dubois, Planner, Planning and Development Services, presented Rezoning Case PH#5-05-3, John Nelson/Nelson Family Trust, Tim Hoban and Carl Ludecke, Tracking #10-05-Z, a request to rezone from R-1 (Rural Residential) to R-2 (Estate Residential), a 48 acre parcel, for the creation of a single family residential subdivision.  Ms. Dubois explained that the property is located in the Tavares area south of the intersection of Old 441 and Merry Road.  Even though the applicants have obtained enough points for a maximum allowable density of 3.5 dwelling units per acre, pursuant to Table 3.03.03 of the Land Development Regulations (LDRs), they are only seeking to rezone to R-2, which permits a maximum density of two dwelling units per acre, therefore, the density associated with the R-2 would take precedence.   With regard to potable water service, the City of Tavares has stated that it has adequate capacity to serve the site; however, they have asserted that central sewer service is presently unavailable.  Staff finds the request to be consistent with the LDRs and Comprehensive Plan and recommends approval of the request.

            COMMISSIONERS

            At 10:20 a.m., it was noted that Commr. Hanson was present for the meeting.

            REZONING CASE PH#5-05-3 – JOHN NELSON/NELSON FAMILY TRUST

            TIM HOBAN AND CARL LUDECKE – R-1 TO R-2 – TRACKING #10-05-Z

            (CONTINUED)

            Commr. Hill opened the public hearing and called for public comment.

            Mr. Tim Hoban, Attorney representing Mr. Jack Nelson and Mr. Carl Ludecke, addressed the Board and stated that they are asking to rezone from R-1 to R-2, and to be allowed to develop on private wells and septic tanks.  Mr. Hoban noted that there are a number of neighbors here today with concerns.  He explained that, based on the wetlands, and based on half acre lots with private wells and septic tanks, they estimate about 63 lots on 48 acres, or about 1.3 lots per acre.  In looking at the map, as shown on the monitor, Mr. Hoban explained that the northern boundary is Old 441; the neighbors to the west are on half acre lots with private well and septic tanks; the southern boundary has some wetlands and undeveloped property; and the neighbors to the east are on private wells and septic tanks on half acre lots.  In July, 2003, this Board approved a future land use map change, and a rezoning to R-2 on the northern part of the Ludecke property.  During that public hearing, they stated that the Ludecke property was partly in urban, partly in urban expansion, and the property was not within 1,000 feet of Tavares central sewer, or 300 feet of Tavares central water, and this Board determined that the Ludecke property could be developed with private wells and septic tanks.  Mr. Hoban noted that a copy of those minutes were included in the backup.  He stated that, in reliance on that determination, they submitted construction plans, which Lake County has approved.  The roads are now about 95% built and they expect the plat to be recorded in the next couple of weeks, for half acre lots, on private wells and septic tanks.  They expect the houses to be between 2,000 and 3,000 square feet and to sell for $250,000 to $350,000.  Mr. Hoban explained that Mr. Nelson’s property is also partly in urban, partly in urban expansion, and Tavares central sewer is not within 1,000 feet of the property, and Tavares central water is not within 300 feet of the property.  So today they are asking for a determination to allow Mr. Nelson’s property to be developed with private wells and septic tanks just like they approved for the Ludecke property.  Mr. Hoban again clarified the location of the property in question and submitted the map to the Deputy Clerk, which was marked at Exhibit A-1 for the Applicant.

            Mr. Hoban stated that, when Mr. Ludecke first discussed with him the idea of putting an entrance in that would go over the railroad tracks to Old 441, he explained to him that the railroad would never give them permission to do this but, after talking with Mr. Bruce Duncan, Potter, Clement, Lowery & Duncan, it was his understanding that the railroad could give its permission, and Mr. Duncan asked him speak to Mr. Jim Stivender, Director of Public Works.  Since that time, Mr. Stivender has spoken to the railroad representative, and it is very possible to get permission to cross the tracks at the location of a non-freight railroad crossing similar to the one at Mt. Homer Road.  Mr. Hoban stated that they expected to do road improvements and, even though this is straight rezoning, they will commit to giving a full and complete application and request an entrance across the railroad tracks directly onto Old 441, as shown.  He stated that they are trying to get along with their neighbors but, when a property is required to do central sewer and central water, it forces them to do a higher density subdivision, pursuant to the requirements of the Comprehensive Plan.  Mr. Hoban pointed out again that their surrounding neighbors have half acre tracts, with wells and septic tanks and, even though the Comprehensive Plan says seven units per acre, they are only asking for 1.3 units per acre, and to be allowed to have the same thing on the Nelson property that was granted on the Ludecke property.  Today they are asking the Board to put in the minutes that they can do the same private wells and septic tanks and not be forced into a higher density subdivision by having to run water from Tavares.

            Commr. Stivender disclosed that she met with the residents in the neighborhood and their attorney, Mr. Bruce Duncan.  Her major concern, as described by Mr. Hoban, was the 18 foot right-of-way on Fairview Avenue.  She explained that the Board approved for Mr. Ludecke’s 40 lots to come out onto Fairview Avenue but, to add an additional 60 homes coming out on a 50 foot right-of-way on Grand Oaks Boulevard to Fairview Avenue and then coming out onto Lakeshore Drive would not meet the required standards.  She asked them to look at doing the railroad access to Old 441, which could handle the right-of-way.  She wanted to disclose that this conversation did take place with those people, and this does meet the requirements and, if they are going to take this route, she feels the homeowners will be happy with this option.

            Commr. Cadwell wanted to know what Mr. Hoban was going to do if the railroad should deny their request, and Mr. Hoban explained that Mr. Nelson’s only legal access is the 30 foot strip through the railroad; he has no access to the south.  Commr. Cadwell noted that the petitions from the residents show that their only concern is the access, and many are in support of the request but, when they leave here today, the Board needs to make sure they have assurances.

            Mr. Sandy Minkoff, County Attorney, explained that this is a straight zoning case and, as they found out just recently in another subdivision, any assurances today are not worth anything so, the only way to insist on access, or to guarantee, for that matter, water and sewer, would be through the Planned Unit Development (PUD) process.  The Board has no authority to say they could use wells and septic tanks because, if the Comprehensive Plan and Code says that they have to use central water and sewer, they have to use central water and sewer; the Board has no authority in a zoning to say that they use access one way or the other because, if they meet the plan for access, they are entitled to it.  So the only way to restrict those things is through a PUD and, regardless of what the minutes say, if the Code and Comprehensive Plan say that they have to have central sewer, they have to have central sewer.  In response to the access question relating to Fairview Avenue, Mr. Minkoff stated that this would be addressed when they go through the preliminary design process and, if it did not meet the concurrency requirements, they would have to make improvements to it, in order to be able to use it under concurrency.  All of the concurrency issues would be considered during the subdivision platting process.

            Mr. Fred Schneider, Director of Engineering, and Mr. Jim Stivender, Director of Public Works, were present to answer questions.

            Mr. Stivender addressed the railroad issue and explained that, in his discussions with Mr. Ben Biscan, Vice President and General Manager, Florida Central Railroad, he indicated that he wants improvements to a new crossing, or to the existing crossing at Fairview Avenue, which will cost about $130,000 to $140,000.  When he and Mr. Schneider were assessing the site, it was determined that they already have a crossing that is being used historically for ingress and egress, which the County was able to use when it did the Mt. Homer Road intersection behind the hospital.  To get that capital improvement into their right-of-way, they are willing to make some modifications to some existing crossings at other places along the line, to allow them to upgrade that crossing.  If a new crossing were to go in at this location, as described, one, it would be the safest crossing for everyone in the area and, two, they would probably want some modifications to other crossings along that line.  Mr. Biscan did tell him that the improvements would not be made to freight railroad standards; they would be made to passenger standards.  Mr. Stivender felt that the railroad would be asking for certain things and, in a lot of cases, they would be justified in making those requests.

            Commr. Cadwell wanted to know if the improvement costs would be included in the applicant’s construction costs, or if the applicant was looking to the County to get this done, and  Mr. Hoban explained that they had anticipated funding the full amount of construction costs, either at Fairview Avenue, or Old 441 or, as stated by Mr. Stivender, for work that would be similar to what was done at Mt. Homer Road and in the same range of costs.

            Mr. Bruce Duncan, Attorney with Potter, Clement, Lowery & Duncan, stated that he is representing many of the residents that live along Fairview Avenue.  Even though petitions have been presented, Mr. Duncan stated that he would like to submit the ones that he has with him today (approximately 84 of them).  The petitions were marked by the Deputy Clerk as Exhibit O-1 for the opposition.  Mr. Duncan asked those individuals in opposition to the request to stand at this time, and it was noted that approximately 20 individuals were present.  Mr. Duncan stated that they do not object to the density, or to wells and septic tanks; their only concern is the access to this particular project.  He explained that the 50 foot right-of-way on Grande Oaks Boulevard, as noted, would not normally meet the required standards for access but, in this case, it has been allowed for access, if it meets County standards.  Mr. Duncan stated that, as pointed out by Commr. Stivender, Fairview Avenue is only 18 feet of pavement, which is substandard and, if you add another 630 cars a day, according to the IT manual, for 63 units, this will create a problem.  In addition, a lot of traffic is going to come out of Fairview Avenue and use Lakeshore Drive, which is not good for several reasons.  Their only concern is that there are no guarantees today.  They could continue the case, so they can get an agreement with the railroad; they could deny it based on the health, safety and welfare issue regarding access onto Fairview Avenue only; or as pointed out by Mr. Minkoff, they could require them to do a PUD.  He felt that the least offensive of these three options would be to continue it and require them to go to the railroad, and then come back to the Board with some kind of established access point.  Then their objections would be eliminated with one small exception, a request for a crash gate, for emergency purposes only, so that these additional 63 units will not have the ability to come through Grand Oak Estates to Fairview Avenue, to access onto Old 441.

            Mr. Egor Emery, Estes Road, Eustis, addressed the Board and stated that, even though this request is in an urbanized area, he will again ask the Board not to approve wells and septics; they need urban services in urban areas.  Even though the applicant can rightfully talk about developing in a compatible fashion with the neighbors, because they are all on wells and septic tanks, this is a bad idea, and it has to stop here.  The applicant can argue about how being on urban services would compel them to have a higher density to recover their profit, but there are a lot of issues with this particular parcel.  He stated that transportation is clearly something of interest to the surrounding neighbors, even though he personally tends to concentrate on the environmental issues, and this parcel would not be regulated by anything they would want to see happen under the zoning.  A PUD would be a good mechanism for getting all of those things, but he would personally like to see them have a mechanism for enforcing environmental concerns rather than going with straight zoning.  He stated that this particular case may require a continuance to get some of these issues resolved but he would really like to see the Board advocate wells and septic tanks as archaic and something they do not do anymore.

            Commr. Hanson stated that she thinks the County Attorney was correct in saying that the Board has to follow the Comprehensive Plan.  She stated that, at some point, in their revisions of the Comprehensive Plan, they should consider a provision that would allow them to have clustered development and even require it, and they could even include other types of smart growth concepts as conditions.  She did not know if it was possible to have a PUD for large scale, as well as one for maybe 50 to 100 acres, or 50 to 75, where they can require open space.

            Mr. Minkoff stated that, when making changes in the Comprehensive Plan and LDRs, the Board can establish these types of requirements.

            Commr. Hanson stated that she realizes that this request is 48 acres, but they may want to go a little bit smaller and not have quite as strenuous requirements for both sets of PUDs.  She does not object to the postponement, because of the access issue.

            Mr. Hoban stressed that the applicant would definitely prefer a postponement rather than the PUD process, or a denial, but they still would like some certainty noting that, in the previous case where they have approved wells and septic, the water and sewer were not there, and they are still not there.

            Mr. Minkoff explained that the applicant can apply for preliminary plat approval now and get an answer in writing from staff about the requirements for wells and septic tanks, but the Board cannot give him that answer.  The only way the Board can give them that certainty is if they come through the PUD process.

            Commr. Hanson stated that, even though this is not a PUD, she would like to see more provisions for open space.

            Mr. Hoban stated that they have existing wetlands on the property, so they will be doing a conservation easement over that property and tie it into their open space calculations.  In terms of clustering, the problem is, with septic tanks, you either get low density or high density and this is infield property; they have neighbors on all sides.

            Commr. Stivender questioned whether 30 days was enough time for the applicant to work out an agreement with Mr. Biscan, and Mr. Stivender indicated that it would be sufficient time.  The County already has many crossings in need of improvements, so they will work with him on that issue.

            On a motion by Commr. Stivender, seconded by Commr. Hanson and carried unanimously by a 5-0 vote, the Board approved a 30 day postponement for Rezoning Case PH#5-05-3, John Nelson/Nelson Family Trust, Tim Hoban and Carl Ludecke, Tracking #10-05-Z, to allow the applicants time to get with the railroad representatives.

            COMMISSIONERS

            At 10:50 a.m., Commr. Hanson left the meeting.

            REZONING CASE CUP#05/2/2-5 – WILLIAM AND ANNA RHODES – CUP IN A

            TRACKING #19-05-CUP

            Ms. Jennifer Dubois, Planner, Planning and Development Services, presented Rezoning Case CUP#05/2/2-5, William and Anna Rhodes, a request for a Conditional Use Permit (CUP) in A (Agriculture).  Ms. Dubois explained that the owners are currently utilizing the 13.79 acre parcel for a beekeeping operation, and an agricultural exemption has been granted for this use by the Lake County Property Appraiser.  The property is located in the Umatilla area approximately one-eighth of a mile west of the intersection of CR 450-A and CR 44-A.  The mobile home currently on the property is being used as a caretaker’s residence, and the owners wish to add a second mobile home for the same purpose, as the occupants of both homes will be actively involved in the daily operation of the beekeeping facility.  Because the use of the property is consistent with both the Land Development Regulations (LDRs) and the Comprehensive Plan, staff is recommending approval of the request.

            Commr. Hill opened the public hearing and called for public comment.

            Ms. Anna Rhodes addressed the Board and explained their need for another caretaker and residence noting that this type of business requires an individual to handle the bees at very specific times.

            Commr. Hill called for further public comment.  There being none, the public hearing portion of the meeting was closed.

            On a motion by Commr. Cadwell, seconded by Commr. Pool and carried by a 4-0 vote, the Board approved to uphold the recommendation of the Zoning Board and approve Rezoning Case CUP#05/2/2-5, William and Anna Rhodes, a request for a CUP in A, to allow two mobile homes to be utilized as caretakers’ residences for an existing beekeeping operation, Tracking #19-05-CUP, Ordinance 2005-16.

            Commr. Hanson was not present for the discussion or vote.

            COMMISSIONERS

            At 10:55 a.m., it was noted that Commr. Hanson was present for the meeting.

            REZONING CASE CUP#05/2/1-2 – MOHAN & DORA SAWH – CUP IN A

            TRACKING #20-05-CUP

            Mr. John Kruse, Senior Planner, Planning and Development Services, presented Rezoning Case CUP#05/2/1-2, Mohan and Dora Sawh, a request for a Conditional Use Permit (CUP) in A (Agriculture) to allow the raising of chickens, ducks and other small poultry on their farm.  The size of their farm is 2.65 acres, as shown on the map included in the backup.  Mr. Kruse explained that, under Table 3.01.03 of the Land Development Regulations (LDRs), general agriculture is permitted in the agriculture zoning district, however, the applicants would like to keep up to 500 chickens and 800 ducks on the property.  Due to the intense number of birds and the small size of the farm, the operation may resemble a chicken/poultry farm.  Under Table 3.01.03, a chicken farm is permitted in the agriculture zoning district through a CUP.  The applicants have indicated that the birds would be raised in houses, and the waste generated from the birds would be used on their garden.  The backup contained a picture of the existing house on site, and the proposed area for the chicken house.

              Mr. Kruse explained that the letter from Mr. Sawh requesting a continuance was to allow the applicant time to get a contract for someone to take the birds on a regular basis, and to set up a contract with someone to clean the manure from the site.  The applicant does anticipate occasional retail traffic from customers.  Mr. Kruse stated that, after consulting with Mr. Bill Price, Lake County Extension Agent, it was determined that, due to the small size of the parcel, the total number of birds should be limited to 1,000. It was also recommended that Best Management Practices (BMPs) shall be used to control odors, flies, and vermin problems.  A plan detailing those practices that will be used on the farm shall be prepared in conjunction with the Natural Resource Conservation Service (NRCS), the Lake County Soil and Water Conservation Service, and the Lake County Agricultural Extension Center.  Mr. Kruse noted that he has spoken to the majority of these agencies, and they are willing to help the applicant prepare the necessary plan.  He stated that staff has found the request to be consistent with the LDRs and Comprehensive Plan, but the question is the number of birds.  Staff consulted with Mr. Sandy Minkoff, County Attorney, and he explained that the property becomes commercial, when it has more than what the family can consume and, when this happens, there is the need for a CUP.  Mr. Kruse stated that, based on the proposed land use, and the effect on adjoining properties, staff is recommending denial of the request.  Mr. Kruse noted that, when he was at the site, he did not see any wetlands, but there had been some improvements on the property.  Mr. Kruse addressed the issue of solid manure production and submitted Data Sheet #1 – Solid manure production (AAFRD 1995a) to the Deputy Clerk, which was marked as Exhibit C-1 for the County.

            Commr. Pool stated that the key issue for him is not the number of birds, but the location of the birds.  In his opinion, he felt that this location is too close to the residents who live there permanently, and he knows that those people will smell this and that it needs to be further away.  He does not have a problem with this as a hobby, but he does have a problem with a commercial operation, when there are nearby residents that will have to deal with it every day, and there will be a fly issue.  He reminded the Board members that they denied an expansion of an existing facility and that this type of operation can be offensive.

            Mr. Kruse explained that he has discussed this application with the applicant, and he does have some additional acreage, but there is still the question of how many birds you can have on site, and Commr. Pool stressed that it is not the number of birds; it is how close they will be to the homes that really matters to him.

            Commr. Hill opened the public hearing and called for public comment.  It was noted that the applicant was not present.

            Mr. Jeff Rice, Pine Island Road, Groveland, addressed the Board and stated that he has petitions that are signed by over 30 of the surrounding residents that are against this rezoning, because of the flies, the smell, and the possible devaluation of their property in this area. 
Mr. Rice stated that staff denied the request, the Zoning Board denied the request, and he believes it would be in the best interest of everybody in the area if the Board denied it, too.  He stated that there are wetlands on the property in question, because he lives right next door to it, and there is only about two and a half acres of usable land.  The petitions were submitted to the Deputy Clerk and marked as Exhibit O-1 for the opposition.

            Ms. Jean Bogart addressed the Board and explained that the applicant has hauled 72 loads of dirt and filled in the wetlands on the property, and he only has three and a half acres; she has six and a half acres directly across from the applicant.  She noted that he will not have much usable land for a chicken farm.

            Commr. Hill called for further public comment.  There being none, the public hearing portion of the meeting was closed.

            On a motion by Commr. Pool, seconded by Commr. Stivender and carried unanimously by a 5-0 vote, the Board upheld the recommendation of the Zoning Board and denied Rezoning Case CUP#05/2/1-2, Mohan and Dora Sawh, a request for a Conditional Use Permit (CUP) in A (Agriculture) to allow the raising of chickens, ducks and other small poultry on their farm, Tracking #20-05-CUP.

            REZONING CASE MSP#05/1/1-3 – DORIS H. HURLEY, ET AL – MSP

            TRACKING #15-05-MSP

            Mr. John Kruse, Senior Planner, Planning and Development Services, presented Rezoning Case MSP#05/1/1-3, Doris H. Hurley, et al, a request for a Mining Site Plan (MSP) in Agriculture for a peat mining operation.

            Commr. Stivender stated that, before Mr. Kruse continues with his presentation, she wanted to disclose that she met with the applicant and the applicant’s representative on this case, and the next case, Rezoning Case MSP#05/2/1-3, C & C Peat Company, Inc.  Commr. Hill disclosed the same, and Commr. Pool disclosed that he met with the applicant’s attorney on the Hurley case.

            Mr. Kruse stated that the applicant is requesting a MSP for a peat mine on the subject parcel that is currently being used for sod production; it was historically used for agricultural production.  It is approximately 581 acres in size; 372 acres are being proposed for peat mining.  The remaining acreage will either remain in sod production or another existing use.  Mr. Kruse stated that the information provided in the application indicates that there will be very little change, if any, to the existing truck traffic volumes or patterns, since the mining operation will be replacing a portion of the sod production operation.   It is estimated that a total of ten trucks per day will haul the material off-site to a processing facility or end user.  There are no additional buildings proposed as part of the operation, and the peat will only be harvested, stocked piled and dried prior to hauling off-site.  No processing will occur at the facility, and the hours of operation will be 7 a.m. to 7 p.m., Monday through Saturday.  He stated that the applicant proposes to mine and reclaim the site as a continuous process, and reclamation within a completed mining area will start when the next mining area commences.  The final reclamation activities will be concluded within two years after the completion of mining.  The anticipated life of the mining operation is expected to be concluded by the year 2020.  Staff is recommending approval with conditions.  Mr. Kruse pointed out that there is a proposed ordinance in the backup, however, there have been three other issues raised and he believes that staff has addressed those with the applicant’s attorney.  Mr. Kruse stated that staff is recommending that the following language from the St. Johns River Water Management District (SJRWMD) be included in the Ordinance, which was submitted to the Deputy Clerk and marked as Exhibit C-1 for the County:

·         Amend condition 2.8 to read:  8. A Ground and Surface Water Monitoring Plan that establishes standards for both water levels and quality shall be submitted to and approved by the County, after review and comment by St. Johns River Water Management District’s staff, prior to commencement of mining.

·         Add a new condition 9 to read:  9. The mining activities shall be conducted in compliance with the standards established in the Ground and Surface Water Monitoring Plan.

 

            Mr. Kruse stated that he would like to include the following language that was received from the Water Resource Management Department that addresses dikes, which was submitted to the Deputy Clerk and marked as Exhibit C-2 for the County, and he noted that it has been presented to the applicant:

“All existing dikes that are part of the project and lying adjacent to waters of the state must be evaluated by a qualified geotechnical engineer for stability and structural integrity prior to start of mining activities.  Any reconstruction or reinforcement of the dikes must be done according to the design provided by the geotechnical engineer.  Any new dikes or berms must be constructed per the ACOE dike design and approved as part of the ERP Permit.  All dikes and berms within the active mining area must be inspected monthly by a qualified professional engineer or a person under the direct supervision or that professional engineer.  The results of the inspections will be in written form and will be summarized and included in the annual report for the facility.”

 

            Commr. Hill opened the public hearing and called for public comment.

            Mr. Steve Richey, Attorney representing the applicant, stated that he is going to invite Mr. Ted Wicks to come forward and make the presentation today, and he will be available to answer any questions.  Mr. Richey stated that they worked together with staff on developing the additional conditions and information provided to them, to clarify the wording, and they have no problem with that language being added.

            Mr. Ted Wicks, Wicks Consulting Services, addressed the Board and stated that they are providing the project engineering, and today they have with them Mr. Ed Murawski, LPG Environmental, Mr. and Mrs. Hurley, and Mr. Keith Trumbull from Lake Sod.  Mr. Wicks stated that this is a fairly unique project, this being only the second one of its kind that he has done.  It involves an existing dike area, and they will not be impacting any wetlands to extract this peat.  They will be able to replace the sod farming operation and have a diverse habitat, which will include open surface water and fresh water marsh.  The property was a typical organic soil farming operation where they would dike from the surrounding waters. This particular farm has been intensive farming since the 1940s and has provided a lot of economic benefit to the area.  The proposal today will establish the peat extraction process separate from the sod farm.  The sod farm currently operates under a consumptive use permit from the SJRWMD, as well as an agricultural discharge permit.  The peat mining operation will be a closed system; they will not need to discharge any water off site; they will be able to reclaim it, retain it, and use it to re-hydrate the local soils.  They have looked at this with two or three regulatory agencies, and they see no particular permitting problems at this point; most of them are excited about the opportunity to eventually eliminate the historical process.  Mr. Wicks stated that, even though they cannot control the market, they are looking at this as a permit for ten years with the State regulatory agencies, which includes the time that they need to reclaim.  The impact is very insignificant, in terms of environmental issues, and it will give them the opportunity to put back flood storage, and a more diverse wetland system.  Right now there is currently a proposal from Mr. Rick Fletcher, Florida Potting Soil, to do the mining as the operator, and he will haul it to his existing processing plant.  In terms of traffic, there may be ten (10) additional trucks in and out of the facility during the day and, as the sod farm diminishes, it will probably equal the traffic they have there today.  They have met with the adjacent neighbors and addressed their concerns, and they have offered to talk to the neighbors and visit with them, as they go into their formal preparation of plans.

            In response to questions from Mr. Richey, Mr. Wicks explained that this is a request for the land use approval with conditions, and they will also be working with three other agencies, the U.S. Army Core of Engineers, the SJRWMD, and the Florida Department of Environmental Protection (FDEP).  Mr. Wicks explained that they cannot obtain their County operations permit until those permits are in hand, so those will be inter-laced together as operating conditions; this MSP requires them to comply with all agencies and be in compliance with those permits.

            Commr. Stivender noted that there were individuals at the Zoning Board meeting who pointed out concerns with the hours of operation and the odor, but Mr. Wicks explained that the current MSP provides for a 7 a.m. to 7 p.m., six days per week, which is what is taking place right now on the sod farm, and there may be some activity on the sod farm on Sundays, because it is a basic agricultural operation. He was also unaware of their mines ever experiencing any odors.

            Mr. David Pelton stated that he lives directly in front of the sod farm, and he is concerned because there seems to be no plan.  The residents had one meeting with the group, but they could not tell them how the property is going to look.  They understand that this is going to lower the land levels anywhere from one to 20 feet in areas, so it will have peaks and valleys everywhere.  He stated that it is going to be marshland, which breeds alligators, mosquitoes, and other things and creates a bunch of problems for this whole area, which is developing as residential property.  His neighbor to the east is also opposed to it.  He has asked the engineer to submit to him other developments that he has done, so that he can see what he considers as a “pleasant” area, because he does not want this to ruin his home.  Mr. Pelton stated that right now it is a productive sod farm, and a beautiful area, but they want to make it a marshland.

            Commr. Pool explained that he thought the SJRWMD had flooded an area, which will be an exact scenario of what is going to happen here, but Mr. Pelton explained that the SJRWMD purchased the land and basically abandoned it, until they develop the other land that is more towards the Apopka area.  Commr. Pool explained that he attended a conference the other day where they talked about excavating material and two other options, but the SJRWMD actually wants to flood that location and restore it back to its natural habitat.  He stated that it is going to be a wetland and marshland to the south.  Mr. Pelton explained that, when the SJRWMD let the area flood initially after they purchased it, they were inundated with mice, dead birds, etc., and they have had alligators removed from the channel behind their house.  This is going to give them a 500 acre breeding ground for alligators, and the land is going to smell, and the mosquitoes are going to make their deposits. Mr. Pelton stressed that it is going to make that land totally undesirable and make their property totally undesirable.

            Mr. Egor Emery addressed the Board and stated that, even though the current density on the overlay of that property is one to five, he is concerned about some of the issues that have been brought up today.   Mr. Emery asked the Board to talk to the applicant about changing the density overlay on this property, to go to something closer to what agriculture should be, something like one to ten, or one to 40, because he is concerned about this particular parcel coming back to the Board in the future for other uses.  He would like to see the Board take the opportunity to ensure that it is wetlands and take the potential density off of that parcel and save it for the public rather than for perhaps potential commercial uses in the future.

            Mr. Richey stated that the MSP application and all of the information with regard to the reclamation was provided to the neighbors and folks that wanted to read it.  The engineering information is included in it, and staff has reviewed it and found it to be sufficient for purposes of this level.  He explained that none of the reclaimed mines that have gone through this process, and through the SJRWMD, the DEP, and the U.S. Core of Engineers, have resulted in the kinds of things that Mr. Pelton has indicated as concerns; the safeguards are in place.  He stated that this is a positive opportunity to take a farming operation, which does discharge and has the potential of some adverse environmental affects, and to convert that, over the next several years, into a positive system.  Mr. Richey requested that the Board allow them this first step, as they go back through that permitting process.

            Commr. Cadwell stated that the County has a very stringent mining ordinance, and he wanted to make sure that Mr. Richey has not asked for any variances in this MSP application.

            Mr. Richey explained that the request follows the ordinance, and they have not asked for any variances.  He noted that the residential development in the area is one to five or greater, as he explained, and the five acre subdivision across the Apopka Beauclair Canal does not have any opposition to this request.  The residential density is extremely limited once this reclamation plan is in place, and it will not come in with a density equaling anything like the one to five.

            Commr. Hill called for further public comment.  There being done, the public hearing portion of the meeting was closed.

            On a motion by Commr. Stivender, seconded by Commr. Cadwell and carried by a 4-0 vote, the Board upheld the recommendation of the Zoning Board and approved Rezoning Case MSP#05/1/1-3, Hurley Peat Extraction, Mining Site Plan in Agriculture, Ted Wicks, Wicks Consulting Services, Tracking #15-05-MSP, Ordinance 2005-17, with the additional staff requirements from the St. Johns River Water Management District (SJRWMD), and from staff, as noted.

            Commr. Hanson was not present for the discussion or vote.

            Commr. Hill announced that the Board will hear the next case and then break for lunch and hopefully Commr. Hanson will be present.  It was noted that the Board will hear the Rezoning Case PH315-05-4, Barn LLP (Cecelia Bonifay, Attorney), at 1 p.m.

            REZONING CASE MSP#05/2/1-3 – C & C PEAT COMPANY, INC.

            AMEND EXISTING MSP – TRACKING #16-05-MSP/AMD

            Mr. John Kruse, Senior Planner, Planning and Development Services, presented Rezoning Case MSP#05/2/1-3, C & C Peat Company, Inc., a request to amend the existing Mining Site Plan, to add 80 acres to the mining site boundary, and to re-establish mining areas 3, 4, and 5 that were previously removed under the last amendment.  The applicant is also requesting that the permit be issued for a period of ten years expiring in 2015.  As shown on the map in the backup, the boundary outlined in yellow is the current MSP.  The northern boundary outlined in blue is the expansion parcel (80 acres).   The operation was originally permitted under MSP#93/9/2-2 in 1993 and, in 2000, the MSP was amended to include additional land, and to remove mining areas 3, 4, and 5.  Only 18.1 acres of the additional 80 acres will be mined.  The three areas, 3, 4, and 5, are already in the permitted mining site boundary to be mined, and the three areas represent an increase of approximately 30 acres to be mined.  The total wetland area disturbed/excavated from mining areas 3, 4, 5 and 9 with the amended plan will be approximately 48 acres.  The applicant is proposing setback distances in portions of the mine to be reduced.  The applicant is also requesting that the singlewide trailer currently used as an office is replaced with a doublewide trailer to be used as the new office, and there will be no changes to the existing truck traffic volumes or patterns.  The hours of operation will remain the same, 7 a.m. until 5 p.m., five days a week.  The proposed expansion area is currently in agriculture and consists of improved pasture and wetlands; historically, the parcel has been used for agriculture.  The applicant proposes to expand the mine and reclaim the site as a continuous process, and reclamation within a completed mining area will start when the next mining area commences.  The final reclamation activities will be concluded within two years after the completion of mining.  Staff recommends approval with conditions.

            Commr. Hill opened the public hearing and called for public comment.

            Mr. Steve Richey, Attorney for the applicant, addressed the Board and stated that the buffer is located between lands that are owned by the very same parties, and these lands are not a part of it; that is why they are asking for the variance.  When they did their reclamation plans, they had deleted some land, and then they re-did their plan, and it was approved by all agencies.  He noted that Mr. Ed Murawski, LPG Permitting, is present and can answer detailed questions.

            Commr. Pool disclosed that he met with the applicant prior to hearing the case.

            Commr. Hill called for further public comment.  There being none, the public hearing portion of the meeting was closed.

            On a motion by Commr. Stivender, seconded by Commr. Pool and carried by a 4-0 vote, the Board upheld the recommendation of the Zoning Board and approved Rezoning Case MSP#05/2/1-3, C & C Peat Company, Inc., a request to amend the existing Mining Site Plan, Tracking #16-05-MSP/AMD, Ordinance 2005-18, with conditions, as follows:  to add 80 acres to the mining site boundary, which includes 18.1 acres to be mined and the re-establishment of mining area 3, 4 and 5; staff also recommends expiration of the permit in 2015 and replacement of the singlewide trailer with a doublewide trailer; the reduced setbacks, as depicted on Figure 3, dated 01/12/05 of the MSP application.

            Commr. Hanson was not present for the discussion or vote.

            COUNTY MANAGER’S DEPARTMENTAL BUSINESS

            POLK PROPERTY/NORTHEAST COMMUNITY PARK/GROVE CARE

            Mr. Sandy Minkoff, County Attorney, addressed the request regarding the continuation of grove care (Polk Property) and stated that staff talked to Mr. John Jackson, Agent for the Agricultural Extension Center, and he recommended that they continue to maintain the grove, until the Board decides what they are going to do with the property.  They anticipate about an equal swap and that the fruit will hopefully pay for the maintenance.

            Commr. Cadwell stated that, in the plan for the Northeast Community Park, which staff is going to bring forward next week to the Board, a lot of that grove is going to stay there, and it will be an intricate part of the park, so they want to maintain it.

            Mr. Minkoff explained that staff did not bid this because there is a current contract for grove maintenance, for a one year period, and it made sense to just to stay with the current maintenance company.

            Commr. Hill stated that it appears that the cost is coming from General Fund Reserves for Operations, and she wanted to know if there was any other place they could pull those funds, because they are getting very low.

            Mr. Bill Neron, County Manager, stated that the only other thing they could do is pull it from General Reserve for Contingency, which would require a four-fifths vote by the Board.  Mr. Neron stated that hopefully they will get a revenue source that they can put back into the budget at some point, but it may not be this fiscal year.

            Commr. Stivender requested that staff tag this item in the General Fund Reserves, so that they will know where the funds came from for this item.

            On a motion by Commr. Cadwell, seconded by Commr. Pool and carried by a 4-0 vote, the Board approved the request from Public Works for approval and continuation of grove care, to include property maintenance, and upkeep for appearance purposes of the newly purchased orange grove (Polk Property). This property will be used in the future as a site for the Northeast Community Park; and approval of budget transfer from General Fund Reserve for Operations in the amount of $48,256.00. Balance remaining in General Fund Reserve for Operations after this transfer will be $28,244.00.

            Commr. Hanson was not present for the discussion or vote.

            OTHER BUSINESS

            APPOINTMENTS/INDUSTRIAL DEVELOPMENT AUTHORITY

            Commr. Cadwell made a motion to approve the reappointment of Greg Nelson, Margo Odom and Glenn Tyre to the Industrial Development Authority (IDA); the appointment of Richard Joyce to replace Tom Bacsik; and the reappointment of Scott Strong – Lake County School Board; Dr. Charles Mojock – Lake Sumter Community College; and Keith Mullins – League of Cities.

            Under discussion, Commr. Cadwell noted that staff is working on an ordinance to add a member from the Lake Technical Center.

            Commr. Pool seconded the motion.

            Commr. Hill called for a vote on the motion, which was carried by a 4-0 vote.

            Commr. Hanson was not present for the discussion or vote.

            APPOINTMENTS/LIBRARY ADVISORY BOARD

            On a motion by Commr. Pool, seconded by Commr. Stivender and carried by a 4-0 vote, the Board approved the reappointment of Barbara Newman (District 1) and Roy Hunter (District 5) to the Library Advisory Board.

            Commr. Hanson was not present for the discussion or vote.

            REPORTS – COUNTY ATTORNEY

            VAN DEE MEDICAL BUILDING/LAKE COUNTY HEALTH DEPARTMENT

            Mr. Sandy Minkoff, County Attorney, addressed the request to lease office and clinical space at Van Dee Medical Building from Jeanne B. Van Dellen for the Lake County Health Department.  Mr. Minkoff explained that the County currently has a short term lease at the Van Dee Medical Building, and it replaced some of the clinic space; this lease will extend that lease. There is almost an additional 3,500 square feet of space that the Health Department would like to use.  In essence, it is a new lease for the entire area.  As noted in the backup, the costs have been listed and reflect an actual square foot price of $11.70 over the three year period of the lease.

            Commr. Stivender wanted to know which Health Department was being replaced with this space, and Mr. Minkoff explained that the Umatilla clinic is occupying most of it.  Commr. Stivender thought they were going to redo the Umatilla Health Department and add on to it, but Mr. Minkoff pointed out that this is the plan, but they have not started yet.

            Mr. Bill Neron, County Manager, explained that there has been a whole host of issues affecting the progress of those plans for the Umatilla Health Department, and staff will get a memo to the Board members outlining the reasons.  At a previous Board meeting, Commr. Cadwell had asked staff to look at lease versus purchase of office space, and a staff group is working on that issue.  He stated that this may be one of the case studies that they do as part of that report, because they are leasing quite a bit of space for the Health Department.

            Commr. Stivender stated that the people in Umatilla need a facility in Umatilla and, even though staff has assured Commr. Cadwell that it will be re-opened, she wanted to know when this was going to happen.

            Mr. Minkoff explained that, for the purposes of the lease, it does have a cancellation clause so, while it is a three year lease, they can cancel early if something else becomes accessible.

            Commr. Stivender stated that they were doing another “band-aid” approach and she would like a memo to find out what is actually going on with this item.

            On a motion by Commr. Cadwell, seconded by Commr. Pool and carried by a 3-1 vote, the Board approved the request for approval to lease office and clinical space at Van Dee Medical Building from Jeanne B. Van Dellen for the Lake County Health Department.

            Commr. Stivender voted “no”.

            Commr. Hanson was not present for the discussion or vote.

            ADDENDUM NO. 1

            COUNTY MANAGER’S DEPARTMENT BUSINESS

            AMENDMENT TO LEASE AGREEMENT/PUBLIX SUPER MARKETS, INC.

            SUMMERBAY SHOPPING CENTER/CITRUS RIDGE LIBRARY

            Mr. Sandy Minkoff, County Attorney, addressed the request for approval of the Second Amendment to the Lease Agreement with Publix Super Markets, Inc. and stated that Ms. Quinnette Durkin, Property Manager, County Attorney’s Office, has been very diligent in working on this item.  The shopping center is actually in the process of being sold and they were concerned because their lease expires in May or June; the architects are finishing the plans now;  this is only a one year renewal; and it is likely they will have to renew it, once this center is sold.

            Commr. Stivender questioned whether this was the library they were trying to get other counties to help build, and Mr. Bill Neron, County Manager, explained that staff has had discussions and believes that Osceola County, at one time, had a line item and a proposed bond referendum to help support this project.  Mr. Neron explained that they never sold the bonds, so right now, per his conversations with the County Manager in Osceola County, they have not allocated any funds for the project, but they are continuing discussions.

            Commr. Stivender questioned whether the County has funds allocated to build the library, because she knows that the County spent $400,000 on architectural plans.

            Mr. Neron stated that $4.5 million has been budgeted for this project, the Citrus Ridge Library, and they will know how much they will actually need when the bids come in but they do not have funds to replace the Cooper Memorial Library.  He noted that they do have funds budgeted in the Local Option Sales Tax for the Four Corners Library.

            Commr. Pool pointed out that the Board may want to rescind the opportunity for utilization of the facility, if Lake County builds it, funds it, and maintains it, because he would prefer not to have everybody from other counties utilizing it, if they do not participate it its funding; Commr. Stivender agreed.

            Commr. Cadwell noted that he has had discussions with Osceola County in regards to finding another source, and Mr. Neron noted that staff has had discussions with Polk County.

            Mr. Minkoff pointed out that there is also Orange County, and the County utilizes their libraries in the north end, so it is a fairly complicated situation.

            Commr. Pool stated that there are other library users that are not on either boundary and, if they are not participating, he doubts that they are using their libraries, so he would like to make sure they are participants.

            Mr. Neron stated that, before the holidays, staff met with the managers from the four counties, and they are still in discussions, so he will put something in writing to them.  It was noted that, at the Board’s workshop on Monday, they will be talking about all of these issues.

            On a motion by Commr. Pool, seconded by Commr. Cadwell and carried by a 4-0 vote, the Board approved the request from the County Attorney for approval of Second Amendment to Lease Agreement with Publix Super Markets, Inc. and Lake County, for lease of space at Summerbay Shopping Center for Citrus Ridge Library.

            Commr. Hanson was not present for the discussion or vote.

            REPORTS – COUNTY MANAGER

            MASTER SPACE STUDY/BOARD RETREAT

            Mr. Bill Neron, County Manager, stated that, when staff originally scheduled the Board Retreat on February 28, 2005, the space consultant was scheduled to be here, but he will not be able to attend the meeting on Monday; he can be here Tuesday, March 1, 2005.  He would like to schedule any discussion of the space study at that meeting.  He noted that the Board still has a lot of items to be discussed at the Retreat.

            Mr. Neron stated that March 8, 2005 was going to be a workshop on dirt road paving and, because of FEMA issues, staff has not completed the work on this item, so the Board can consider canceling that meeting.  He noted that the dirt road paving discussion will be rescheduled sometime in April.

            On a motion by Cadwell, seconded by Commr. Pool and carried by a 4-0 vote, the Board approved to place the item regarding the cancellation of the March 8, 2005 Board meeting on the agenda.

            Commr. Hanson was not present for the discussion or vote.

            On a motion by Commr. Stivender, seconded by Commr. Cadwell and carried by a 4-0 vote, the Board approved to cancel the March 8, 2005 Board meeting.

            Commr. Hanson was not present for the vote.

            Mr. Gregg Welstead, Deputy County Manager/Director of Growth Management, addressed the Board and stated that staff had scheduled, on the March 15, 2005 agenda, the second public hearing on the Clermont Land Development Regulations (LDRs), which is the same night that staff is going to be doing the Minneola Town meeting.

            It was noted that the item brought forth by Mr. Welstead has been addressed by staff and the Board did not need to take action on it.

            Commr. Hill clarified the Board’s schedule, as follows:

                        February 28, 2005       Board Retreat – Bragg Center

                        March 1, 2005             Regular Board Meeting

                        March 8, 2005             Cancelled

                        March 15, 2005           Regular Board Meeting

                        March 22, 2005           Cancelled

                        March 29, 2005           Regular Board Meeting

 

            It was noted that staff had not planned on filming the Board Retreat on February 28, 2005 at the Bragg Center.

            REPORTS – COMMISSIONER CADWELL – DISTRICT #5

            BOND FAMILY/LOT SPLIT FEE

            Commr. Cadwell explained that the Bond family, in south Umatilla, runs an after school tutoring group, and they have also given the County right-of-way on several occasions for drainage and other things, and they want to do a lot split on this piece of property.  He asked the Board to entertain waiving the lot split fee for them, and to place this item on the agenda.  He noted that the Bonds know they have to do their own surveys,.

            On a motion by Commr. Cadwell, seconded by Commr. Stivender and carried by a 4-0 vote, the Board approved to place the item regarding the Bond family, as noted, on the agenda.

            Commr. Hanson was not present for the discussion or vote.

            Commr. Cadwell made a motion, which was seconded by Commr. Stivender, to approve to waive the lot split fee for the Bond family in Umatilla.

            Under discussion, Commr. Hill questioned the amount of the fee, with staff noting that it would be about $80.

            Commr. Hill called for a vote on the motion, which was carried by a 4-0 vote.

            Commr. Hanson was not present for the discussion or vote.

            REPORTS – COMMISSIONER POOL – DISTRICT #2

            DEPARTMENT OF TRANSPORTATION MEETING

            Commr. Pool informed the Board that the Department of Transportation will have a meeting on February 24, 2005 at Jenkins Auditorium, from 6:30 p.m. to 8 p.m. regarding the six-laning of the U.S. Highway 27 corridor.

            REPORTS – COMMISSIONER STIVENDER – DISTRICT #3

            PARADES/CITY OF EUSTIS

            Commr. Stivender noted that the Washington’s Day Parade will be held Saturday, February 26, 2005, in Eustis.

            REPORTS – COMMISSIONER HILL – CHAIRMAN AND DISTRICT #1

            WOLF BRANCH WALK

            Commr. Hill informed the Board that she has received an invitation for the Board to participate in the “Wolf Branch Walk” this Saturday, and it will include a discussion.

            It was noted that staff will verify the number of Commissioners attending the event and advertise, if necessary.

            RECESS & REASSEMBLY

            At 11:55 a.m., Commr. Hill announced that the Board will recess for lunch and reconvene at 1:00 p.m.

            COMMISSIONERS

            At 1:00 p.m., it was noted that all Commissioners were present for the afternoon session.

            ADDENDUM NO. 1

            PEAR PARK/GRANT/FIVE YEAR CAPITAL IMPROVEMENT PROGRAM

            Mr. Bill Neron, County Manager, addressed the request from Public Works for approval to submit a Land and Water Conservation Program Grant application for the Phase I development at PEAR Park, as noted.

            Mr. Gary Saltzman addressed the Board and stated that he is the President of the PEAR Association, the volunteer group that is working at the Park, and he wanted to briefly say that they greatly appreciate the request and hope that the Board will approve it.  They also look forward to working with Mr. John Bringard, Outsourcing Contracts Manager, Public Works, Road Operations Division.

            Commr. Hill stated that the Board certainly appreciates all of the volunteers.

            On a motion by Commr. Cadwell, seconded by Commr. Stivender and carried by a 5-0 vote, the Board approved the request from Public Works for approval to submit a Land and Water Conservation Program Grant application for Phase I development at PEAR Park; approval to commit $200,000.00 as matching funds to support the application and approval to provide $400,000.00 up front for project expenses for which $200,000.00 would be reimbursed to the County at completion of the project; approval to add PEAR Park Phase I development to the Five Year Capital Improvement Program, for action within two years; and approval for the County Manager to forward a letter to the Department of Environmental Protection certifying that the Five Year Capital Improvement Program schedule is officially adopted and a funding source indicated.

            REZONING (CONTINUED)

            REZONING CASE PH#15-05-4 – ROUSELLE & DOROTHY SUTTON

            JACK SPILLANE, DENNIS BENBOW, NATALIE WINDSOR & BARN LLP

            CECELIA BONIFAY, ESQ. – A TO A-1-20 – TRACKING #18-05-TDR/Z

            Mr. Jeff Richardson, Planning Manager, Planning and Development Services, presented Rezoning Case PH#15-05-4, Rouselle and Dorothy Sutton, Jack Spillane, Dennis Benbow, Natalie Windsor and Barn LLP, Cecelia Bonifay, Esquire, a request to rezone from A (Agriculture) to A-1-20 (Wekiva River Protection Overlay District Two).  Mr. Richardson explained that this is a four part request; there are three sending areas and one receiving area.  Staff did not find any issue with the transfer of development rights being sent off the properties, however, staff is unable to support a positive recommendation as to the receiving property and is recommending denial on all of the cases.  Mr. Richardson referred to the maps in the backup noting the location of each parcel identified as follows:  Sending Parcel A – Natalie E. Windsor; Sending Parcel B – Rouselle A. and Dorothy Sutton, et al; Sending Parcel C – Wekiva River Mitigation Bank, LLC; and Receiving Parcel D – Barn LLP.  He explained that the information he will be providing to the Board is basically centered on the receiving parcel, and staff does not necessarily have an issue with the sending parcels and the development rights being sent off of those; it is more of where they are asking them to be placed on that receiving parcel.

            Mr. Richardson stated that the subject parcel, which is the receiving parcel, is located in Receiving Area #2, which is in the Mount Plymouth-Sorrento Urban Compact Node, and it is also within the Wekiva River Protection Area boundary.  The property is approximately 298 acres in size, and it currently has R-1 zoning, which would allow for an existing maximum density of 197 dwelling units.  The applicant is proposing to acquire a total of 326 development rights from the Sending Properties.  If the transfer is approved, the Receiving Property will have the right to develop 523 units at a density of 2.65 units per acre.  Mr. Richardson explained that this is a request for R-6 zoning. Staff did discuss a Planned Unit Development (PUD) as an alternative for the rezoning, which would allow the Board to place conditions.  Staff did not identify any major issues with the Land Development Regulations (LDRs) regarding the Transfer of Development Rights (TDRs), or the Comprehensive Plan; however, there are several issues under other factors, and it goes back to a consistency issue.  They include the provision of central water and sewer to the property at a density of approximately 2.6 dwelling units per acre and also being located within the Wekiva River Basin.  The applicant has had ongoing discussions with the City of Eustis; however, on January 20, 2005, the City of Eustis elected not to provide central utilities to the property, so that leaves the availability of central potable water and sewer services.  He noted that there is a strong potential that the transportation concurrency will not pass, but staff will need to determine whether capacity does exist.  He stated that the Public Works Department would be requesting a transportation analysis, if they move forward to a point where they would be receiving development plans for the property.  Mr. Richardson explained that, on the environmental side, the property can be characterized as having well drained soils.  They are actually addressing a small portion of the much larger parcel that is identified as Neighborhood Lakes, which is essentially pasture, and it is directly adjacent to the Mount Plymouth Country Club and Camp Challenge.  Even though the staff report indicates that there would be no environmental impediments in developing the site, it was based more on looking at the issue of mitigation, but even mitigation will potentially have some negative effect, to not only wildlife and habit, but to the aquifer recharge.  He noted that both of these elements were identified by the Wekiva River Coordinating Committee, and by this Board in Resolution 2001-42, which supports acquisition of these lands.  Mr. Richardson explained that the request is compatible with the development patterns in the area.  In using the Transfer of Development Rights (TDR) program, there are issues that need to be taken into consideration by the Board, which include Resolution 2001-42, the Wekiva River Coordinating Committee’s final report, and the legislation found in the Wekiva River Parkway and Protection Act.  The Coordinating Committee and the Board found that the development of this property would have negative impacts on the overall Wekiva Basin, as well as the public lands, potential wildlife, aquifer recharge, land management efforts, and the potential for recreation and preservation efforts into the future.

            To summarize the recommendation for denial, Mr. Richardson explained that, even though the applicant has made a valid effort to work within the rules established by the Comprehensive Plan and LDRs and utilize the TDR program for the development of this site, the override in public interest factors have necessitated staff making a recommendation of denial of this particular property.  Mr. Richardson stated that, as noted, during the Zoning Board hearing, the issue is not with the TDR program, or the effect of that program, but it is where these TDRs are being applied and the issue of appropriateness and, at this time, this property is not appropriate and this consideration is not appropriate.

            Commr. Hill disclosed that she spoke to supporters and Ms. Bonifay, and people who have opposed this application and, before the Board opens the public hearing, she stated that a lot of attention has been given to this particular item and emotions can run high.  At this time, she explained the procedure the Board will use for taking public comment.

            Commr. Hanson disclosed that she had talked to those individuals in favor and who oppose the application, and Commr. Stivender and Commr. Pool disclosed the same.  Commr. Cadwell disclosed that he only spoke to individuals who were opposed to it.

            Ms. Cecelia Bonifay, Akerman Senterfitt, addressed the Board and stated that she is here today on behalf of Barn LLP, the owners of the property that is the subject of this rezoning request.  Ms. Bonifay pointed out that Mr. Richardson has presented some new information today, and it was not included in any of the information that she has received; she only has the original staff report.   She wanted the record to note that today was the first time they have heard that and, since they have no witnesses and experts to refute that, she will just have to provide some additional information.

            Ms. Bonifay pointed out that, as Mr. Richardson concluded in his presentation, they were not questioning the application of the Comprehensive Plan in regard to TDRs; it is just that this is not an appropriate site, or it is not an appropriate site at this time, but none of that was rationale that was included in any of the staff reports on record.  Before she begins, she would like the record to note that they would ask that the staff reports be made a part of that record, as well as the minutes of the Zoning Board meeting.  Ms. Bonifay explained that the entire process is the issue, and the entire procedure that this Board spelled out in its Comprehensive Plan a number of years ago, in terms of how they were going to compensate people and deal with property rights in the Wekiva Basin.  When they enacted the Wekiva River Protection Area, they took property and reduced the density and intensity of that property and, in those areas where they took away the most density, they set in place a system that would allow them to have transferable development rights (TDRs), something that was highly debated and contested in 1988-1990.  Ms. Bonifay explained how this process would work using examples.  She stated that the three sending areas, as noted, were consistent and compatible with the Comprehensive Plan and LDRs, yet they are going to be denied the benefit and use of their property, so these TDRs have been acquired by her client and are being held in escrow.  Ms. Bonifay wanted to know the precedent set by this Board, because she has other clients who are either in the process of or have acquired TDRs that will be coming back to the Board.  She feels that this is all about money; it is not about protecting the resource, or about environmental issues on this site.

Ms. Bonifay submitted an Evaluation of Potential Environmental Impacts Associated with Groundwater Consumptive Use, and a resume from Eric Krebill, P.G., which were marked as Exhibit A-2 and A-3 consecutively for the Applicant.  She noted that Mr. Krebill is the Senior Geologist responsible for working on the consumptive use permit that was done some time ago and is still pending before the St. Johns River Water Management District (SJRWMD).  She pointed out that, when Mr. Krebill started on the permit, it was at the direction of the City of Eustis, over two years ago.  They were talking about giving utilities, and they wanted to know the impacts on doing a well on this site, because they did not want it concentrated in one area.  As stated, the City of Eustis has indicated that they will not provide utilities to the site; however, that does not mean that utilities are not available.  She pointed out that throughout the utility section, as well as in the data and analysis, it indicates three ways they can do utilities in Lake County and, because the County has determined that it would not be in the utility business, they can either go to a neighboring municipality; have an onsite wastewater treatment plant, which they have already allowed in the Wekiva River Study Area; have septic tanks which are not looked upon with favor based on the Wekiva River Coordinating Committee’s recommendations and ongoing study; or have a private utility do them.  She pointed out that the southern portion of this property, the portion that is located in Orange County, has already been annexed into the City of Apopka, and they are undergoing a Small Area Study.  The City of Apopka is in the utility business and, based on the information she has obtained, they have the ability to serve, but there is no existing utility agreement.  She noted that there are 500 acres that are not in Lake County’s jurisdiction.  Mr. Krebill’s modeling determinations indicate that there will be no offsite impact on the surficial aquifer water table, or the potentiometric surface and, since the springs are located outside of the model domain, there will be inconsequential impact due to the proposed consumptive use, and the clients are moving forward with that consumptive use permit.  In addition, the Board passed a Resolution opposing that consumptive use and, at that point, there was no opportunity for the property owner, or the applicant, to be present and no information was given to them about the status other than what opponents of the project presented, yet the Board went forward and passed a recommendation and submitted it to the SJRWMD, but it has not stopped the SJRWMD from going forward and continuing its review of the application.

Ms. Bonifay stated that the issue today is density, and they have shown that there is no impact and, as stated by Mr. Richardson, he did not base his statements on any environmental evaluation, or any other evaluation undertaken by the County.  She explained that this is a piece of property that has been in agricultural use over a long period of time, and the lakes on Neighborhood Lakes are manmade lakes.  She stated that, through discussions, there really was not any specific environmental resource that was talked about as being the factor for why this property should be preserved and, in looking at the legislation again for the Wekiva, the report does not talk about specific protected species.

Ms. Bonifay referred to the TDRs and stated that Lake County may have been ahead of its time because, when they reduced the density so severely in the Wekiva River area, it allowed the development to go forward fairly unchecked in Seminole County and Orange County, until recent history, and it made Lake County the conservation, preservation, recreation area for the State.  There will be no State money forthcoming to help with the requirements and that was not part of the final recommendation.  A system was put into place for the sending and receiving areas and, as shown, the Mt. Plymouth/Sorrento Urban Compact Node was developed that will allow densities up to 5.5 units per acre.  Ms. Bonifay stated that is how they justified to all of those folks in the sending areas that lost their density and lost their property rights that they ultimately would be compensated because people would buy those TDRs.  As the County knows, it has been a very slow process, and the market is now there, and TDRs are being transferred and, as she indicated, the Board will be seeing other applications for TDRs.  She referred to the language in the Comprehensive Plan and LDRs that defines the TDR system, and the application for a transfer permit, which gets processed simultaneously with a rezoning application, and noted that there are four applications pending, three from the sending, and one for the receiving.  It was clarified that the density would be taken away from the sending areas, and it would be allocated to the receiving area.  She addressed the issue of transportation and noted that, because the County has done nothing to take care of its transportation problem on SR 46 and has been waiting for the Wekiva Parkway, they may not be able to meet concurrency and, therefore, they will not be able to proceed with the development until the concurrency issue is resolved.  They have now addressed the two issues brought forth by staff, environment and transportation, and the idea that they just do not know if it is appropriate.

Ms. Bonifay referred to the minutes from the Zoning Board meeting, which reflects that the offer from the Expressway Authority “was an invitation to negotiate, but it did not have the central terms required to begin discussions.”  She stated that, even though Mr. Lee has indicated that there is a $25 million offer on the table, Ms. Bonifay clarified that he has not been privy to discussions with her client.  She noted that, based on the last letter that was sent to Ms. Rossman and Mr. Cole from the Expressway Authority, they did not believe that it constituted an offer; it did not have the material terms necessary to constitute one.  Ms. Bonifay stated that Mr. Lee will probably tell the Board like he told the Zoning Board, the law says these have to be purchased, and he will site the Wekiva River Protection Act.  She stated that she reviewed the Wekiva River Protection Act and it says that, as of December, 2004, they were going to begin negotiations, and they have until 2010 to actually acquire any of the properties that are outlined (four properties), so there is no timeframe.  She stated that the idea that this is going to happen quickly, that there is plenty of money, she thinks is a misrepresentation of what is going to happen in this particular case and, again, if the State so desires, they can always take it.  Ms. Bonifay stated that, at no point, in any of the discussions about the TDR program, was there a motion to remove the Neighborhood Lakes property from the TDR system, or to say that they would not be as eligible as any other similarly situated property to obtain TDRs, and to use them on their property.  She stated that, because there are so many people here today that want to speak on this matter, she will reserve her time in the form of rebuttal.

In response to Commr. Hanson’s question about whether the applicant has responded to the letter from the Expressway Authority to begin discussions, Ms. Bonifay stated that she has talked to their eminent domain counsel this morning, and she believes they responded last week, but she does not know if it has been received and she is not aware of the content of that response.

Commr. Cadwell requested that Ms. Bonifay characterize her client’s participation in the Wekiva River Basin Coordinating Committee.      

Ms. Bonifay stated that their participation was along with several others; she represented a number of different property owners.  Mr. Wade Hopping who could not be here today was their primary counsel throughout the entire Wekiva River discussion.  They were there, as every other property owner, to protect their property interests; however, in the spirit of cooperation, they also participated and made a presentation.  Their main concern was the protection of those rights, and it did not mean that they did not favor certain environmental or other kinds of controls.  They were in agreement with those and felt that many of those things should be employed in development, but the key factor was that there is not one recommendation that deals with density other than the way you do clustering, and some other things. It was very clearly stated by a number of those members of the committee that they were not there to down zone, or lower, but they were going to try to achieve better development through primarily water quality/water quantity methodologies.  In looking at the DCA web site today, the majority of those things on there are going to be the status of various rulemaking.

Commr. Cadwell stated that, in the legislation itself, where it designates the Orlando-Orange County Expressway Authority to act as the acquisition agent, he wanted to know if Ms. Bonifay’s clients protested their names actually being listed in the Executive Order, and in the legislation.

Ms. Bonifay stated that her clients absolutely did not protest because they had made it known that they had already been working on their consumptive use permit, which was known by all of the members, because this County took an action in opposition.  It was discussed at the meeting that they were going forward with the development of their property; they were going to acquire TDRs; but they were going to do it in a very sensitive manner and meet any and all environmental controls that were necessary and, if that affected density, so be it.

Commr. Hill opened the public hearing and called for public comment.

Mr. James Homich, City Councilman for the City of Mount Dora, addressed the Board and stated that he is here on behalf of the City Council, and the approximately 10,500 residents in the City of Mount Dora.  Mr. Homich stated that the City Council unanimously passed a Resolution, which he read into the record:

RESOLUTION NO. 2005-06

 

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MOUNT DORA, FLORIDA, PERTAINING TO DEVELOPMENT WITHIN THE NEIGHBORHOOD LAKES PROPERTY; PROVIDING FOR AN EFFECTIVE DATE.

 

WHEREAS, as participants in the Wekiva River Basin Coordinating Committee appointed by the Governor, Mount Dora and Lake County, in cooperation with numerous other local governments and state agencies, developed a set of recommendations which were adopted by the state legislature in 2004; and

 

WHEREAS, the Wekiva Parkway and Protection Act (Section 369 Part III, Florida Statutes), specifically identifies Neighborhood Lakes as an essential property to be acquired in its entirety for preservation in association with the Wekiva Parkway; and

 

WHEREAS, the City of Mount Dora remains committed to the successful implementation of this legislation, which we believe to be vital to protecting the natural resources and economic health of our region; and

 

WHEREAS, the City of Mount Dora recognizes that efforts to acquire conservation lands specified by the Wekiva Parkway and Protection Act are now at a critical juncture;

 

NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF MOUTN DORA, FLORIDA:

 

Section 1.      The City of Mount Dora urges the Board of County Commissioners of Lake County to refrain from any action that may increase the density or enhance the development potential of Neighborhood Lakes and thereby adversely affect its purchase by the state;

 

Section 2.      The City of Mount Dora urges Lake County to exercise the greatest degree of scrutiny in its review of any rezoning or other land use proposal that may place a greater burden upon natural resources or infrastructure capacity with the Wekiva River Protection Area, or which may interfere with achieving the legislative intent of the Wekiva Parkway and Protection Act.

 

Section 3.      This resolution shall take effect immediately upon its final adoption by the City Council.

 

PASSED AND RESOLVED this 15th day of February, 2005, by the City Council of the City of Mount Dora, Florida.

 

            Mr. Homich submitted the copy of Resolution 2005-06 to the Deputy Clerk, and it was marked as Exhibit O-1 for the opposition.

            Commr. Hanson stated that there has been some discussion dealing with TDRs, as far as opening up other areas to transfer that density away from the Wekiva River, and she questioned whether the City of Mount Dora would be receptive to looking at requiring those TDRs to be purchased, to get the higher densities in Mount Dora and in the joint planning area.

            Mr. Homich stated that he feels there are much more appropriate areas in Lake County, some adjacent to the City of Eustis, and some adjacent to the City of Mount Dora, which would better accommodate this type of increase.  He stated that right now the City of Mount Dora’s joint planning area is probably the second smallest in the County, so they have not really looked at expanding their borders.

            Commr. Hanson clarified that she was not talking about expanding their borders, but within their borders to get a higher density.    She stated that there are areas between US Highway 441 and Round Lake Road where densities could be transferred.  She is still somewhat frustrated because the TDRs have been held out for years, as a way to transfer those densities away from the sensitive areas in the Wekiva, to areas that are less sensitive in the urban node, which is the only place they can do it today but, if they are opened up to other areas of the Wekiva Study Area, she wanted to know if the City of Mount Dora would be willing to look at that.

            Mr. Homich explained that the City of Mount Dora has annexed almost all of the urban/urban expansion area adjacent to the City of Mount Dora, at this point, and Commr. Hanson explained that this is where those TDRs should go, in an urban area, either in the City of Mount Dora, or the City of Eustis, or wherever.  Mr. Homich explained that their main concern is protecting the Wekiva, and Commr. Hanson noted that, if these are not transferred, then they remain in the sensitive areas of the Wekiva, so the goal is to still transfer them out.  Mr. Homich explained that the City of Mount Dora is trying to meet with the County about their JPA (joint planning agreement) area, and they can certainly put this issue on the table at the same time.

            Mr. Charles Lee, representing Audubon of Florida, addressed the Board and stated that he really believes that this case comes down to some straight forward and simple issues relating to the operation of the County’s very excellent TDR system, which he believes is one of the leading systems in the State of Florida.  When that system was created, it was clear that the TDRs and their use were not going to be automatic and that it was going to be subject to the LDRs and Code and requirements of rezoning where you are increasing the allowable uses on a given piece of land; therefore, they are here in a joint proceeding involving a rezoning, and a request to move the TDRs, as outlined.  Mr. Lee noted that, in the Code, Section 14.03.03(i) relates to public interest considerations and Sections 14.03.02(c) and 14.03.03(f) relate to consideration of environmental impacts.  Mr. Lee stated that last year the legislature acted to adopt statements of legislative policy, which they suggest would directly come to bear on the public interest, and the environmental impact determinations, the Board has to make as to whether or not this is an appropriate rezoning.  Mr. Lee stated that they agree with staff; staff has made an excellent presentation to the Board; it is an excellent written report; and their recommendation of denial against this project is right on point.  The essential facts are in the legislation that relates to the Barn LLP piece, known as Neighborhood Lakes, as follows:

            369.317(6)(a)  Acquisition of the land described in this section is required to provide right-of-way for the Wekiva Parkway, a limited access roadway linking State Road 429 to Interstate 4, an essential component in meeting regional transportation needs to provide regional connectivity, improve safety, accommodate projected population and economic growth, and satisfy critical transportation requirements caused by increasing traffic volume growth and travel demands.

 

            369.317(6)(b)  Acquisition of lands described in this section is also required to protect the surface water and groundwater resources of Lake, Orange, and Seminole counties, otherwise known as the Wekiva Study Area, including recharge within the springshed that provides for the Wekiva River system.  Protection of this area is crucial to the long term viability of the Wekiva River and springs and central Florida region’s water supply.  Acquisition of the lands described in this section is also necessary to alleviate pressure from growth and development affecting the surface and groundwater resources within the recharge area.

 

            Mr. Lee stated that the Expressway Authority feels that these are the ultimate results of the work product that came from two task forces (Wekiva Basin Area Task Force and Wekiva River Basin Coordinating Committee) appointed by the Executive Order of Governor Jeb Bush, and they are paramount in terms of considering the effects of this rezoning, and they would suggest to the Board that this would not be the thing to do at this point in time.  He stated that clearly the Neighborhood Lakes property is not the only potential receiving area for TDRs that exist under the system.  Mr. Lee introduced a copy of a map, which shows the extent of the receiving areas (noted in pink and grey), which are available for receipt of these TDRs under the County ordinance.  Mr. Lee explained that the map shows that there remain extensive areas where TDRs could be utilized to increase densities in more appropriate settings and also to allow those persons who are affected by the first round of the Wekiva Protection efforts in the 1980s to get some value moved off of their property and onto other property where it is developable under the current system.  The map was submitted to the Deputy Clerk and marked as Exhibit O-2 for the opposition.  Mr. Lee explained that there is a conflict between the legislation passed 15 years ago, and the legislation passed last year.  They feel that the Board should consider adjusting their ordinance and recognize one of the other recommendations, or requirements, from that legislation, that each local government in the area look at its Comprehensive Plan and regulations and, by 2006, take action to bring them together, and they think that is clearly a recommendation they would make as one of the things they should be thinking about in that process.  The dialogue, as suggested by Commr. Hanson, was that there are probably other areas in the County where additional use of the TDRs could be considered to make them more transactional and more useful, obviously avoiding the pitfalls of having those fall into areas that need to be protected and identified by legislation.  Mr. Lee explained that the two task forces and the legislation passed last year brought them up to speed with a lot of new science, which has created different conclusions from what was known in the 1980s.

            Mr. Lee pointed out that the legislation that was signed into law by the Governor directed the Expressway Authority to begin land acquisition negotiations in December, 2004 and, in less than 30 days, a letter was sent to the eminent domain counsel of Barn LLP (S. Cary Gaylord), from the counsel for the Expressway Authority, which stated the following:

“After a review of the facts and the status of potential entitlements to the subject property, we are prepared to recommend the sum of $25,000,000.00 for the acquisition of the fee simple interest in the property together with all entitlements, rights and interest that may exist or by operation of any statutory or ordinance provisions accrue to the property as they may be described.  This purchase price is based upon our analysis which is approximately 1,000 acres of developable uplands at $25,000.00 per acre.”

 

            Mr. Lee explained that this is an offer of $25,000 per acre for developable upland acres and obviously that is going to adjust according to the survey; this could be a $30 million offer.  The bottom line is that it is a real offer; it was made within 30 days of the trigger point in the Statute; the land acquisition is ongoing; and he hopes that the Board recognizes it as such.  Mr. Lee submitted to the Deputy Clerk the letter dated February 1, 2005, from Broad and Cassel, and it was marked as Exhibit O-3 for the opposition.

            In conclusion, Mr. Lee thanked the Board for their efforts to protect the Wekiva, and for the good efforts that Commr. Hanson expended for quite awhile on the Wekiva River Basin Coordinating Committee and continues to expend on the Wekiva River Basin Commission recreated by the legislation.  He hopes that the Board will support the staff recommendation and deny the proposed rezoning and transfers presented today.

            Commr. Hanson referred to Exhibit O-2 and stated that, as a point of discussion, much of the southern part of the “pink” area is almost all built out in low density subdivisions.  Her concern is that they need to evaluate how much it there, where there is an opportunity to transfer those development rights, and look at State owned properties.  She has brought up several times that the State needs to extinguish their development rights in the State owned properties, because you can see a significant amount of property has been purchased by the State, and those development rights are still there.  They need to do some sort of evaluation of how many they are looking at and what the opportunities are for those that are left to participate in the TDRs.  They also need to look at whether there are changes that need to occur, should there be a banker, a third party, because most of those that succeed have a third party, a bank or broker, that holds them until there is a need, or a demand.

            Mr. Lee stated that those are good points, but there is one other item worth noting with regard to this particular TDR proposal that is somewhat troubling.  There is a very substantial amount of the TDRs that are proposed to be transferred from the property known as New Garden Coal, also known as Wekiva Mitigation Bank but, while on one hand the developers of the Wekiva Mitigation Bank are trying to maximize the number of mitigation credits they get approved by the Department of Environmental Protection (DEP) to sell, on the other hand they are proposing to transfer these development rights off the property to Neighborhood Lakes and make money by that transaction.  He believes that the transferring of the TDR off of this property to Neighborhood Lakes undermines the mitigation credit value and, for that reason, is very close to the item of concern, with regard to public property possibly being the source of mitigation credits.  He stated that this is soon to become effectively public property by virtue of a conservation easement under a mitigation bank and, if it can still transfer off credits, being paid for those on one hand while selling mitigation credits for wetland mitigation on the other is simply an unsettling act of “double-dipping.”  He stated that this is another reason for the Board to consider that this particular TDR may not be appropriate.  Mr. Lee stated that they hope they get a lot of mitigation credits to sell and they can fully retire the development value of that property, but he is not sure their strategy of doing both things at once serves them well; it may undermine the ultimate of mitigation credits that they should be getting from the DEP.  It is his understanding that the objective is for the entire parcel to be taken off with the exception of a 300 foot right-of-way for the road.  Another reason it may conflict with selling the TDRs off of there is that a lot of this is simply wetland preservation mitigation.  There is also wetland creation for which they get actual benefits for taking some disturbed areas and turning them back into restored wetland areas.  They hope they get a good mitigation bank, they get a lot of credits, and they ought not to transfer these TDRs prematurely and potentially devaluing the actual mitigation credits they should be able to get off the site.

            Mr. Scott Taylor, Sorrento, addressed the Board and stated that he would just like to be on record as a TDR holder himself, he has about 145 in a company that he owns, and that he thinks the concept of a review of the TDR system is a sound one.  He does not feel frightened or scared by the possibility that this TDR may not go through as a result of the discussions that they are having today, and all of the good reasons that Mr. Lee and others have elaborated here.  In addition, he would like to be on the record to ask that, with respect to using the word “double-dipping” and, with respect to transferring development rights and getting credit in a mitigation bank setting does not seem right.  He has seen evidence of this happening in other situations, and he has tried to bring it to the attention of the Water Authority, a particular case, and he thinks there should be some tie.  He knows that, in the LDRs, there is not a tie at the moment between conservation easements that deal with the DEP and the TDR system; they are separate and that is why this possibility of “double-dipping” occurs and, in the review, that is one of the other things that should be added, as well as other areas defined.

COMMISSIONERS

At 2:10 p.m., it was noted that Commr. Stivender left the meeting.

            REZONING CASE PH#15-05-4 – ROUSELLE & DOROTHY SUTTON

            JACK SPILLANE, DENNIS BENBOW, NATALIE WINDSOR & BARN LLP

            CECELIA BONIFAY, ESQ. – A TO A-1-20 – TRACKING #18-05-TDR/Z

            (CONTINUED)

            Ms. Jeanne Etter, resident of Mount Plymouth, addressed the Board and submitted to the Deputy Clerk the letter from Broad and Cassel dated February 1, 2005, with specific paragraphs highlighted in yellow, and a document from the DEP regarding their intent to issue a permit for the Wekiva River Mitigation Bank property, which were marked as Exhibit O-4 and O-5 consecutively for the Opposition.  Ms. Etter explained that, as a resident, she has been before the Board quite a few times regarding this particular parcel of land.  Through the efforts of the Commissioners, Lake County has gained respect throughout the State for its approach to managing growth while protecting the Wekiva River springs, and this success has inspired other communities in the State to follow suit.  By denying the petitions for the TDRs as not being in the public interest, they can reinforce their commitment to a successful implementation of the Wekiva Parkway and Protection Act.  She explained that the petitioners for Sending Areas A and B can proceed with the TDRs on other properties in the receiving area, as shown earlier in Exhibit O-2, which would be more acceptable for development.  The petition for Sending Area C, which is the Wekiva River Mitigation Bank, has the DEP document (Exhibit O-5) that gives a Notice of Intent to Issue an Environmental Resource/Mitigation Bank Permit.  The permit has the potential for 390 Mitigation Bank credits that will be later sold to developments in other areas.  She discussed the overload of traffic in East Lake County on local roads noting that the purchase of this land by the State would allow the continuance of SR 429 to SR 46 and on to I-4 thus creating the long desired beltway around Orlando and relieving regional traffic woes; less traffic on the local roads means less money will be required for improvements.  In terms of economic development, by having a wildlife corridor and pristine river, it will lessen the potential burden upon natural resources, schools, emergency services, and law enforcement.  She stated that Barn LLP has a written offer of $25 million from the Orlando-Orange County Expressway Authority on property which they paid less than $7 million four years ago; and with the denial today, the biggest winner will be the Wekiva River.

            Ms. Priscilla Bernard, resident of Sorrento, addressed the Board and stated that she would like to comment on the presentation given by the Zoning staff today, and to say that she was very pleased with what they presented this afternoon.

COMMISSIONERS

At 2:18 p.m., it was noted that Commr. Stivender returned to the meeting.

            REZONING CASE PH#15-05-4 – ROUSELLE & DOROTHY SUTTON

            JACK SPILLANE, DENNIS BENBOW, NATALIE WINDSOR & BARN LLP

            CECELIA BONIFAY, ESQ. – A TO A-1-20 – TRACKING #18-05-TDR/Z

            (CONTINUED)

            Ms. Bernard explained that this request has been denied by the Cities of Eustis, Mount Dora, Clermont, the Zoning Board, through the County’s own Resolution, through Florida State law, and the public, and she is outraged at the applicant for putting Lake County and its citizens in this awkward position, in a final effort to get everything they want without compromise and, in her opinion, to put them in this position was very disrespectful.  She stated that it was the public who compromised in their discussions of a toll road and, in return, they asked Barn LLP to compromise and sell that property to the State.  She certainly feels that $25 million is adequate and, even though Ms. Bonifay would establish that her client has the right to get up zoned, in her opinion, even though one has an option, it does not make that option the right one to pursue.  Ms. Bernard asked the Board to support the public in this matter, and the courageous actions of the City, and deny this rezoning request and go even a step further and submit verbally to the record all of the multitude of reasons, the number one reason being this overriding public interest to deny this rezoning.

            Ms. Gail Ash, City of Clermont, addressed the Board and stated that it was her idea for the City of Clermont Council to write a letter opposing this rezoning.  She felt personally that, even though Clermont does not abut this property and does not have a vested interest in it, they do have an interest in it, because it is environmentally sensitive land in Central Florida, and every single person in the County has an investment in it.  As elected officials, she personally feels that they have a commitment to take care of that land, as they have more and more environmentally sensitive land presented to them for development.  Ms. Ash stressed that it is time for them to take notice and maintain their basic environment, and she requested that the Board not increase the density of this property.

            Mr. Paul Trembly, resident of Sorrento, stated that he would like to thank the Board for passing Resolution 2001-42 in support of the Wekiva River, even before legislation was passed.  Since that time, others have come together to support this with State law, and now the Board is presented with another opportunity to show their support.  Mr. Trembly stated that he lives next door to this property, and he and his children appreciate the opportunity to watch the habitat and live in a community that lacks a lot of concrete and asphalt, the reasons for selecting to live in this area.  He noted that the City of Eustis denied requests for utilities to this property, and the City of Mount Dora, and the City of Clermont, supported denial of this rezoning, and the Zoning Board recommended denial.  He stated that it is the will of the people that this land be preserved and never developed, and the Board has already taken a stand by their Resolution, and he urged them to do so again.  Mr. Trembly asked the Board to follow the intent of the new legislation and the will of the people and deny the request, and do it in a manner that makes it very clear that they do not support efforts that undermine the work of so many dedicated people and agencies. Mr. Trembly recognized that there are certain development rights on the property.

            Mr. Egor Emery stated that the Lake County Conservation Council has asked him to come here today and speak once again for protecting the Wekiva.  They have been involved in the process and, since 1987, with the Wekiva Protection Act, and they would like to urge the Board to do everything possible to protect the Wekiva.  Mr. Emery stated that the compromise that has been put forward is one of the best solutions, which they actively developed over the last three years.  They believe it is a very good solution to many problems in that area, and he believes that they need to do everything possible to protect the Wekiva.  He personally asked the Board members to not pass up this opportunity to avoid the mistakes that have been made in the past; set a trend; protect the Wekiva for now and forever.

            Mr. Fred Antonio addressed the Board and stated that he works at the Central Florida Zoo, and he is the second landowner west of the receiving area being discussed today.  Mr. Antonio stated that, as far as what is represented in this area, he thinks they all recognize the importance of wildlife corridors, preserved area, and buffer zones that help protect the ecosystems, which are quite fragile.  He explained that his yard is located very close to the property in question, and he has seen many different species of wildlife, far more than just a couple of gopher tortoises.

            Mr. Keith Schue, Central Florida Sierra Club, addressed the Board and stated that he would like to reiterate that the most compelling reason the Board has to reject this rezoning is that it is not in the public interest, pursuant to the land development code of Lake County.  He stated that the Wekiva Basin initiative is one of the greatest environmental regional commitments ever made in the future of Central Florida, and the purchase of Neighborhood Lakes is a very important part of that commitment.  Mr. Schue stated that there is no conceivable reason why the County should increase the zoning, action that will increase the development potential of this land and potentially hinder its acquisition by the State of Florida.  He stated that they also recognize that it is important to legally establish a strong basis for their decision.  Mr. Schue submitted to the Deputy Clerk a Summary of Neighborhood Lakes Rezoning Problems relating to the public interest, which was marked as Exhibit O-6 for the Opposition; Attachment D, which was part of the application for Neighborhhood Lakes and a boundary amendment to the Ocala Greenway project, which was marked as Exhibit O-7 for the Opposition; and Resolution 2001-42, which was marked as Exhibit O-8 for the Opposition.

            Ms. Nadine Foley, Chairman of the Public Land Acquisition Advisory Council, addressed the Board and stated that they are looking forward to the exciting prospect of being able to acquire some additional conservation and environmentally sensitive lands in Lake County.  They will be spending taxpayer dollars that have been generously allotted by the voters last fall but, in this case, it is not going to cost them taxpayer dollars.  The money will come from agencies that are interested in solving the transportation needs of Central Florida and, at the same time, she feels certain that the property owners, and any others involved in this process, will be amply compensated for their property and the use of it.  Ms. Foley stated that she is very hopeful that today the Board will continue the path they have chosen and move forward with the intent of the Wekiva Parkway Act and take into consideration that the Zoning Board has considered this and is requesting the denial, as well as staff.  Ms. Foley stated that, in speaking personally from her own point of view, having lived here for about 45 years, she does think that this has been the first time that she has seen all of the entities in Lake County coming together to work on a serious problem, and to reach a good resolution, and she hopes that today their actions will bear that continuing process.

            Ms. Jennifer McMurtray, Transportation and Wildlife Ecology Coordinator, Defenders of Wildlife, stated that she wanted to note that this is a very critical point and that this decision today will decide whether or not the whole Wekiva Protection and Preservation Plan will thrive.   She stressed that the environmental impacts are very real and the hydrology is critical, because these are high recharge lands, and there has been enough data on the hydrology.  She stated that the Wekiva Basin Area Task Force would not have developed these recommendations that this property be purchased, if it were not incredibly important and, if the Board is interested in any of that information, it can probably be located on the DCA web site.  The property is disturbed but it is not bereft of environmental value even above the ground and, as Mr. Antonio has said, there is a lot of wildlife there.  She wanted to point out that the burrowing owls are terribly under represented in the Wekiva Basin, as she explained, and that this would be a chance to get another listed species on to State lands.  There is also the issue of the wildlife corridor, and the fact that it shares a border for three miles with Rock Springs Run State Reserve, and that ties in with really half a million acres of conservation lands.  So the proximity, the hydrology, the wildlife, it is all incredibly important and, if they do get this land and put the road in this pasture area, then they are going to have to take other land that is more pristine, and that is why the Board passed its own Resolution that says this land needs to be purchased.  Ms. McMurtray explained that, when a high intensity road is built, this is where development will focus and no one would do that in an environmentally sensitive area unless they could do it and control the growth.  So they cannot control the preservation of rural character, and the water quality and quantity, because those things are directly tied to zoning and land use intensity, and that has to be done by the local government.  She noted that today is that big decision point for the Board, and the Wekiva plan will not work without the Board doing its part.  They have done a great job, and they really need for them to stay the course.  In addition to the whole public interest issue, there are some very serious technical problems with this application that would be grounds for them to deny it.  The fact that there is incorrect information such as a permit from Eustis, which has not been granted, and there has not been a complete analysis which is usually required and then there is the issue of the majority of mitigation credits coming from the New Garden Coal property and, as it has already been explained as “double-dipping”.  In the zoning hearing, staff had said that they had not done a title search yet, so she is not even sure that they can transfer those credits so, even on technical grounds, the Board has enough justification to deny this request.  Ms. McMurtray stated that she appreciates everything the Board has done on behalf of the Wekiva, and she hopes they will deny this and stick with the plan; and, to be on record, the County has great zoning and has done a good job with it.

            Mr. Wayne Rich, Esquire, Broad and Cassel, P.A., addressed the Board and stated that their firm represents the Orlando Orange County Expressway Authority, and they have been designated by Statute as the acquisition agent for the designated properties within the Statute.  Mr. Rich explained that, as late as October, 2004, they entered into a tri-party agreement with the DEP and the SJRWMD to serve as acquisition agent.  A number of comments that have been made by the previous speakers are very appropriate, and Mr. Rich noted that he will not repeat those today.  He stated that there are a couple of things he would like to say in support of the Zoning Board’s findings that are before them today.  First, pursuant to Section 14.03.03 (j), Standards of Review of an Application for Rezoning, in their deliberations, the Board of County Commissioners can take into consideration “any other matters that may be deemed appropriate” in the best interest of the public.  He pointed out that, in the Statute that was enacted, there is a provision, which requires that there be reconsideration of the Comprehensive Plan and LDRs within this area, and he knows that they are very well aware of all of this so he is not going to be redundant except to make sure it is on the record for purposes of going forward, that there is a point in time which they can address some of the anomalies in the TDR process, and that they have to help address some of the apparent inconsistencies that have been raised here today, particularly in Ms. Bonifay’s testimony.  Mr. Rich explained that the Statute gives the Board the opportunity to reopen that box and address some of those concerns where landowners could be compensated by expansion of receiving areas, or other formulas that could be created under the land development code.  For purposes of the record, Mr. Rich stated that he was going to resubmit a memo that was presented at the Zoning Board hearing, which restates some of the provisions of the Statute and again supports the action taken by the Zoning Board.  The memo was marked by the Deputy Clerk as Exhibit O-9 for the Opposition.  Mr. Rich stated that the Board has until January 1, 2006, to address those particular elements, and he believes there are opportunities of other governmental entities and agencies of the State to be supportive of the Board while addressing that problem.

            Commr. Pool wanted to know whether or not the $25 million was actually classified and considered as an offer, and Mr. Rich explained that they are in the position, as the firm representing all of these entities, to make recommendations.  They have had a response from
Mr. Gaylord asking for further clarification as to whether the State has the money, and the timeframe, and they have responded to say that the agencies of the State obviously have resources, and they feel there is a process that is set forth in their tri-party agreement where appraisals have to be submitted and, depending on which agency is funding it, it has to go to the Cabinet for approval.  To follow up with Mr. Lee’s comment, Mr. Rich explained that they are trying to run at break-neck for government agencies, and he thinks they have the ability, if they can get something negotiated at the table, to not only get the appraisal process completed but close within a reasonable period of time.  They are not trying to be restrictive in a way to this party’s interest; they recognize they have certain entitlements; and that is why their letter addressed those entitlements.  Their study has shown this to be a realistic approach to the acquisition of this property, and now they are waiting to start serious negotiations.  They have pledged to Mr. Gaylord that, if they get a reasonable negotiation going, they will move with all due speed.

            Commr. Stivender noted that, pursuant to a request from Commr. Hanson, as Chairman of the Lake-Sumter Metropolitan Planning Organization (MPO), she sent a letter from the MPO asking for assistance from the legislature in this matter and, as clarified by Mr. Rich, it does not actually go to them; it goes to the Cabinet.

            Commr. Hanson stated that she appreciated the action taken by the MPO, and she appreciates Mr. Rich being here today.  She stated that she is assuming this piece of property has the priority of the four that were listed.

            Mr. Rich clarified that they really are making a “full blown” effort on all of them, and they have to be able to have face-to-face negotiations and discussions with the landowner, but they are making a good faith effort on all of them; this one has a priority; but then they all have priorities; and they have taken note that the one before them today is this Board’s priority.

            Ms. Sue Angermeir addressed the Board and stated that she lives in Double Run near Astatula and, after listening to all of these people, she wanted to say that she has lived in Florida since 1950 in different areas of the State.  She first saw Lake County in 1985, and she thought it was the most beautiful place she had ever seen and, even though she realizes they have to develop, she sees so much of it and, even though there are others who feel the same way but could not be here today, the Board has the opportunity today to do something that is going to be very important to their constituency, and to do the right thing.

            RECESS & REASSEMBLY

            At 2:47 p.m., Commr. Hill announced that the Board would take a 15 minute break.

            REZONING CASE PH#15-05-4 – ROUSELLE & DOROTHY SUTTON

            JACK SPILLANE, DENNIS BENBOW, NATALIE WINDSOR & BARN LLP

            CECELIA BONIFAY, ESQ. – A TO A-1-20 – TRACKING #18-05-TDR/Z

            (CONTINUED)

            At 3 p.m., Commr. Hill reconvened the meeting and asked Ms. Bonifay if she would like to follow up with any questions.

            Ms. Bonifay stated that she would to rebut and try to summarize a few of the issues that were brought to the Board, in terms of rationale, or reason for opposition.  She stated that their premise is that the way the entire TDR program was structured in Lake County was really more of a transfer development permit, as outlined in the LDRs, and that the zoning was the methodology by which they showed the transfer, by taking it from one parcel, rezoning it and taking those off, and then assigning them to the new parcel of property, as they have shown today.  After hearing the opponents who were finding great fault with the TDR process before the Zoning Board, they are not heralding it again as a wonderful thing that the Board has done, and it was very novel and certainly very progressive for its time; however, they just do not want it applied in this instance.  Ms. Bonifay explained that they have spent almost a year debating Senator Lee Constantine’s proposal, to make TDRs mostly jurisdictional, which is one of the suggestions that Mr. Lee made today, and that they should just transfer them to other areas in the County.  She explained that this Board’s predecessors never wanted to do that so what is on the books today is the same thing that has been on the books since it was adopted and, in every Comprehensive Plan change, they have determined that the Board will not change that program.  On behalf of Barn LLP, Ms. Bonifay stated that she approached County staff about eight or ten months ago and presented all of the information from a TDR sale, which involved two Planned Unit Developments (PUDs) at that time, and she reviewed all of the forms with them and made them aware that they were in the process of acquiring TDRs and would be moving forward with them.  Ms. Bonifay stated that she found it interesting that they keep talking about the public purpose, or the will of the people, and she thinks that the only will that they have seen here is an attempt to depress the value of the property, so that it can be acquired more cheaply.  They went through this with the State when the Wekiva River Protection Act was first done; the State kept saying it was going to buy lands, but the State said that it would not come through with the money until they actually put bulldozers on the site.  Ms. Bonifay referred to Exhibit O-2 and the testimony presented by Mr. Lee that, if you take this one off of the books, there was no need to worry, because there are plenty of receiving areas, but they are not in the urban node where the Board chose to go up to 5.5 units per acre.  She stated that his Board has not changed that at any time while they were modifying their Comprehensive Plan, and they have not recommended that through the Mount Plymouth-Sorrento Study; in fact, they have eliminated this property from the study area.  She pointed out that at no time during any of those Wekiva meetings was it ever indicated that TDRs were appropriate everywhere but just not in Neighborhood Lakes.  She stated that Mr. Lee did not point out that a number of these properties that are in receiving areas have already been developed; the largest area that is available is before the Board today.  She noted that there appears to be open negotiations and, now with no legal, or factual basis, they have heard several people come before them and say that a reason to deny this would be that the owners of the New Garden Cole property have no legal right to transfer their TDRs.  They have been accused of “double-dipping” and being dishonest with the government in proceeding as a mitigation bank, when this was the same group of individuals that opposed them almost every step of the way, because they knew that they had TDRs.  They had actually gotten development rights from Lake County for a portion of the property.  They have the appropriate zoning in place; they meet the Comprehensive Plan requirements for TDRs.  For someone who is not a property owner, who has no legal or factual basis to come before the Board and proffer that as a reason for denial, she finds as misrepresentation.  She has represented those development owners in the past, and she knows that they have acquired certain development rights from Lake County.  She wanted to caution the Board if that is a rationale on which to deny these, because this is the largest number of TDRs being acquired by the client.

            Ms. Bonifay addressed Exhibit O-7, which Mr. Schue proffered on the record as rationale to deny this request and noted that it is an attachment to a document.  She explained that it is so old that it is talking about the State wanting to acquire the Kitteridge property, which is now Sorrento Hills and has central water and sewer from the City of Eustis, and it has been in place for some period of time, so she does not know the relevance of that document.  She stated that Mr. Schue also opined that the application was insufficient, but they went through the application process, and it was found sufficient by staff, and it was moved forward for development review purposes.  So there has been no finding and no determination other than in his personal opinion.  Ms. Bonifay stated that, for those reasons, they would ask that the Board approve the zoning and, again, they feel this is a transfer of development rights to this property and, as stated by staff, it is consistent and compatible with the Comprehensive Plan.

            Commr. Hill called for further public comment.  There being none, the public hearing portion of the meeting was closed.

            Commr. Hanson stated that the Board has been very strong in its backing for the State to purchase this land, since 2001, and that the Resolution, which Ms. Etter had asked her to bring forward, came about as she attempted to create a Mount Plymouth-Sorrento Citizens Advisory Committee in the area.  The Resolution was brought forward and the Board supported it, and they have supported it several times, and she does not think anything has changed, and the Board still supports that effort, as they did throughout the Wekiva Basin Area Task Force meetings, and the Board meetings.  In working with the Wekiva Basin Area Task Force and the Board, there was a commitment that there would be no taking situations created and that is the intent of the legislation.  Senator Constantine even cautioned against it at their last meeting, and the potential of inverse condemnations.  She does not think this creates that situation, but she thinks that it is certainly something that they are very cognizant of.  If the property were to be developed, or any part of it, which could happen, it is possible that the State will not buy all of it, or buys none of it but, after the concerns and indications they have been given today, a PUD would be preferable to straight zoning, if that were to happen.  The applicant can move forward today and plat in one acre tracts, and that would not be good at all.  They also need to remember that those densities that are attempting to be transferred are still in the Wekiva and are in the protection area, and in a more sensitive area that can be built on, and she is not in favor of increasing the density today.  She has known all along that the one acre density is there, or certainly no more than that and it is still an appropriate zoning at this time.  She thinks that R-6 is much too high a zoning and not an appropriate zoning, and then it leaves it open to what is the real intent, with the question still being the intent to have 5.5 units per acre, which could be obtained; and the utilities are not currently available.

            Commr. Cadwell stated that it is real apparent to him that this Board needs to sit down and have a discussion outside of a particular zoning case, in regards to the TDRs, and to look at the ones that have either been government purchased or mitigation purchased, because it has got to affect the price or value of those.  The Board needs to have a policy discussion on how they are going to handle those outside of a particular zoning case, and they need to do this soon.  In regards to his decision today, Commr. Cadwell stated that it is certainly based on everything that has happened.  Ms. Bonifay has said that the Board passed a Resolution not really having any scientific facts, and he thinks that the Wekiva River Basin Commission took in enough evidence, and Commr. Hanson, who represented them on that board, was able to inform them that there were enough facts to base that Resolution, and to base their support on what is happening, and he thinks there is a growing awareness of what is going on.  He pointed out that Ms. Bonifay was right when she said that, under the original Wekiva Act, the State did not buy any of that property until the bulldozers were there, but there is a lot more interest in this project, because of the transportation elements, and that is one of the smartest things that the environmental community could have done, attach their wagon to this road project.  Commr. Cadwell stated that, based on the evidence that he has heard today, and the actions of this Board in the past, he would certainly hope that they would deny this application.

            Commr. Hanson stated that this is a very unusual situation, and there are a lot of different aspects of it that have to be considered and, as far as looking at the TDRs, it was brought up when the Wekiva River Basin Commission met and they felt that it should remain as it is because they were afraid that it might undermine the whole system, but she thinks that today they need to look at that and direct staff.

            Commr. Pool stated, when he was sitting on the SR 429 Expressway Committee, and they were talking about the road, there was a lot of dialogue about what would happen with this transportation corridor, and they have an opportunity to put a road through and ensure that the rest of the property is protected, an offer that ensures that the State is interested and concerned about the property.  He stated that Ms. Bonifay has put forth a gallant effort today trying to explain the TDRs, and the entire process but, with this offer forthcoming, and what he thinks is a legitimate offer, he thinks that it would be prudent on their part to deny the rezoning request at this time, until such final offers are made but he thinks this offer today is legitimate; he thinks that the needs will be met by the traveling public; the environmental community will be able to protect the Wekiva Basin; and the landowners will receive a fair compensation in the long run for their property, so he will not be able to support the rezoning.

            Commr. Hill stated that she agrees with everything that has already been said but she really does feel, as a Board, that they have made a real major decision in 2001 to identify this as an environmental impact of this property and, not for only this property, but that entire area, and they sent a message to the legislature, a pretty strong one, and they have maintained that and held fast to that Resolution.  She appreciates Commr. Hanson’s leadership and her role on the Wekiva Basin Area Task Force, and she sincerely believes that they will take care of the TDR question, maybe through the Comprehensive Plan process, or by policy decision, and hopefully the Cabinet will address this and have a solid answer for purchase in this up and coming session and, with them looking at what this Board has done today, she hopes it will help in their decision.

            Commr. Stivender noted that she had no further comments but she feels that the Board members have said it all.

            Commr. Hanson made a motion, which was seconded by Commr. Cadwell, to uphold the recommendation of the Zoning Board and deny Rezoning Case PH#15-05-4, Rouselle and Dorothy Sutton, Jacks Spillane, Dennis Benbow, Natalie Windsor and Barn, LLP, Cecelia Bonifay, Esquire, a request from A (Agriculture) to A-1-20, Tracking #18-05-TDR/Z.

            Under discussion, Commr. Cadwell questioned whether this motion takes care of all of the applications, with staff noting that the action will cover all four cases.

            Commr. Hill called for a vote on the motion, which was carried unanimously by a 5-0 vote.

            ADJOURNMENT

            There being no further business to be brought to the attention of the Board, the meeting adjourned at 3:25 p.m.

 

 

 

 

___________________________

JENNIFER HILL, CHAIRMAN

ATTEST:

 

 

 

 

 

 

__________________________

JAMES C. WATKINS, CLERK