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HomeMy WebLinkAboutapproved PZ minutes 111810 St. Lucie County 1 Planning and Zoning Commission/ Local Planning Agency 2 rd Roger Poitras Annex, Commission Chambers, 3 Floor 3 November 18, 2010 Meeting 4 6:00 p.m. 5 In the event of a conflict between these written minutes and a compact disc recording, 6 the compact disc shall control. 7 I. CALL TO ORDER 8 Chairman Mundt called the meeting to order at 6:02 p.m. 9 A. Pledge of Allegiance 10 B. Roll Call 11 Craig Mundt ...................................... Chairman 12 Britt Reynolds .................................. Vice-Chairman 13 Pamela Hammer .............................. Commission Member 14 Edward Lounds ................................ Commission Member 15 Susan Caron .................................... Commission Member 16 Brad Culverhouse ............................. Commission Member 17 Charles Grande ............................... Commission Member 18 Stephanie Morgan ............................ Commission Member 19 Barry Schrader ................................. Commission Member 20 Kathryn Hensley .............................. Ex-Officio Member 21 22 Members Absent 23 None. 24 25 Staff Present 26 Mark Satterlee .................................. Planning & Development Services Director 27 Heather Young ................................. Assistant County Attorney 28 Heather Lueke .................................. Assistant County Attorney 29 Karen Smith...................................... Environmental Resources Director 30 Michael Brillhart ................................ Business and Concurrency Manager 31 Britton DeWitt ................................... Senior Planner 32 Michelle Hylton ................................. Recording Secretary 33 34 C. Announcements 35 Mr. Satterlee welcomed Mr. Grande to the Planning Board and introduced Beverly Austin, 36 the new executive assistant to the Planning and Development Services department. She will 37 be taking over the recording duties at the next meeting. 38 Page 2 of 14 DRAFT D. Disclosure 39 Chairman Mundt stated he met with staff earlier in the week about the agenda items. He 40 asked everyone to speak clearly into the microphones; tonight’s meeting will be the 41 beginning for closed-caption. 42 II. MINUTES 43 Review the minutes from the October 21, 2010 meeting for approval. 44 Ms. Hammer stated she had a number of changes/corrections but nothing substantial and 45 they were given to the secretary. 46 Chairman Mundt stated he had also and the changes had been incorporated. 47 Mr. Culverhouse moved to approve the minutes as corrected and submitted . 48 Mr. Schrader seconded. The motion carried 9-0. 49 Chairman Mundt stated he would like to move agenda items 3-D and 3-E, Prime Realty to be 50 heard first. 51 III. PUBLIC HEARINGS 52 (3-D) Prime Realty, LLC: FLUMA 1120094022 – continued from October 21, 53 2010 meeting. 54 Petition of Prime Realty Capital, LLC for a Future Land Use Map Amendment from the 55 RS (Residential Suburban – 2 du/ac) Designation to the IND (Industrial) Designation. 56 Staff comments by Britton De Witt. 57 (3-E) Prime Realty, LLC: RZ 1120094021 – continued from October 21, 58 2010 meeting. 59 Petition of Prime Realty, LLC for a change in zoning from the AG – 1 (Agricultural – 1 60 du/ac) Zoning District to the IH (Industrial, Heavy) Zoning District. Staff comments by 61 Britton De Witt. 62 Mrs. De Witt requested agenda items 3-D and 3-E petitioned by Prime Realty be pulled from 63 the public hearing schedule. Both items were continued to tonight’s meeting from October 64 21, 2010 to allow the client to come into compliance with outstanding mining permit issues 65 pertaining to the subject property. Conditions of the permit remain outstanding and instead of 66 a second continuance; staff is recommending removal from the public hearing schedule. 67 Both projects will remain active and the applicant will be responsible for future advertising 68 costs. Staff and the applicant are present to answer any question from the board. 69 Chairman Mundt opened the public hearing for 3-D. 70 Planning and Zoning Commission November 18, 2010 Minutes Page 3 of 14 DRAFT No one spoke. 71 Chairman Mundt closed the public hearing. 72 Ms. Morgan moved to remove agenda item 3-D. 73 Mr. Grande seconded. The motion carried 9-0. 74 Chairman Mundt opened the public hearing for 3-E. 75 No one spoke. 76 Chairman Mundt closed the public hearing. 77 Mr. Schrader moved to remove agenda item 3-E. 78 Ms. Morgan seconded. The motion carried 9-0. 79 Chairman Mundt announced going back to the regular agenda. 80 A. Ordinance No. 10-015 – Greenway and Trails 81 An Ordinance amending the St. Lucie County Land Development Code by amending 82 Section 2.00.00 (“Definitions”) to amend the definition of “Multi-Use Path” to read 83 “Multi – Purpose Path” and to clarify that paths indentified as Greenways and 84 Recreational Trails, trails within canal rights – of – way, on the county bicycle, 85 Pedestrian Greenways and Trails Master Plan may be considered as Multi- Purpose 86 Paths; amending Section 7.05.04 to add a separate section on requirements for 87 Greenways and Recreational Trail for new development in Unincorporated St. Lucie 88 County. Staff comments and presentation by the Public Works Department and the 89 Environmental Resources Department. 90 Ms. Smith stated this is a continuation of the August 19, 2010 public hearing for draft 91 ordinance 10-015 – Multi-purpose paths, greenways and recreational trails. The purpose of 92 these amendments is to implement the St. Lucie County Bicycle, Pedestrian, Greenways 93 and Trails Master Plan which was approved by the Board of County Commissioners in 2008 94 after an extensive public input process. A copy of the full master plan document was 95 distributed to the planning board at the beginning of this meeting. 96 Ms. Smith gave a presentation regarding the master plan map. The current draft includes 97 public comment from the last public hearing and outside legal counsel’s review and 98 comment. It clarifies the requirements for sidewalks, multi-purpose paths, greenways and 99 trails and the specifications, also the cost of maintenance responsibility. At the last meeting, 100 several questions were raised about the value of the greenways and trails system to the 101 community. The State of Florida recently passed a resolution in February 2010 in support of 102 greenways and trails statewide; the revenue shows the greenways and trails system can 103 Planning and Zoning Commission November 18, 2010 Minutes Page 4 of 14 DRAFT serve as a revenue source for the community. These figures are based on documented 104 increases and hotel occupancy rates and greenways and trails related tourism which totaled 105 95 million dollars in revenue statewide. A comprehensive greenways and trails system can 106 do the same for St. Lucie County. 107 Mr. Culverhouse had concerns regarding the map being conceptual, added language, right 108 of way acquirements, Indrio Road area; trails going over private property and questions 109 regarding the chart in the back of the master plan map. 110 Ms. Smith stated the language that has been added to the ordinance clarifies the 111 requirements where a trail is shown on the map. The map is conceptual in that the path may 112 go on the other side of a street or the trail may be located on an adjacent right of way. It is 113 not conceptual where it shows the locations of the trials. None of the recreational trails are 114 proposed to be located on private property, in fact there are exemptions included in this draft 115 for agriculture. Most of the greenways and trails are proposed within public right of ways or 116 canal right of ways. If a trail is proposed that runs adjacent to public property then it would 117 be placed in either the road right of way or an existing easement. There are very few 118 situations were a recreational trail would go on private property and then it would have to 119 meet the rational nexus test and the other two criteria. 120 Mr. Harris addressed Mr. Culverhouse’s concerns regarding public right of way existence on 121 Indrio Road, the yellow hyphenated line going north and the bottom end going south on the 122 map. He stated Mr. Culverhouse was correct about the one going south; that is a dream and 123 a hope. That right of way does not exist at this time. That is one of the few places we do not 124 have right of way for a multi-use path. 125 Mr. Culverhouse asked if there was any place else on the map where they don’t have the 126 right of way acquired. 127 Ms. Smith stated yes. 128 Mr. Culverhouse stated that this is then conceptual; he does not see how you can bind the 129 land owner that the trail is going over their property when there has not been any notification, 130 no law suit and you have not taken the property. 131 Mr. Harris stated he assumed the landowner would be on notice if he did his due diligence. 132 This may be a question for the assistant county attorney. 133 Mr. Culverhouse said he has a problem because he remembers at one of the planning and 134 zoning meetings, another member and himself was concerned about being conceptual. 135 They were told at that meeting it was conceptual and it was going to be placed in the 136 document that it was conceptual and that it was not binding on the land owners. Tonight, he 137 is hearing something different; he is greatly disturbed. He thinks something needs to be 138 Planning and Zoning Commission November 18, 2010 Minutes Page 5 of 14 DRAFT added to this document that this is conceptual and the land owners who have not consented 139 to it, whose right of way has not been acquired, that none of their rights are affected in any 140 way. 141 Mr. Harris stated he understood Ms. Culverhouse’s concerns and where the path is not lined 142 within an existing road right of way; he would consider that conceptual. Where the path is 143 lined within an existing county road right of way, that path is not going to move. 144 Mr. Culverhouse stated if it is existing county public right of way or there is an agreement 145 with the state or an existing agreement with the drainage district; that is fine. But where the 146 right of way has not been acquired, then he would like something saying that it is conceptual 147 and that it does not prohibit or foreclose the rights of any home owner or property owner until 148 they receive their full rights under a due process of law. 149 Mr. Harris stated that could be done; that can be noted within the ordinance. 150 Mr. Grande stated Mr. Culverhouse is correct but more changes will have to be made than 151 just conceptual because the wording throughout the ordinance indicates that the property 152 owner who has a path indicated through his property will have to pay for the creation of that 153 path as part of his site plan. Either the paths are there and at the time of site plan the 154 property owner is accepting the responsibility for implementing the plan or they are not there 155 and there is no undue burden on the property owner. The current discussion seems to leave 156 that somewhere in between, saying on the one hand that the plan is conceptual while leaving 157 in the body of ordinance statements indicating that the owner will have to put in the path as 158 shown on the map. Somehow that point has to be resolved and then all of the changes 159 necessary to get to what the decision is need to be made. Putting in ‘it’s conceptual’ is going 160 to resolve this? 161 Mr. Culverhouse agreed with Mr. Grande. 162 Ms. Hammer stated she raised this last time and was told that it was conceptual because 163 she has a concern about what is seen through PGA Village. She sees a dotted orange line 164 that says proposed multi-purpose trails on the map. The residents of PGA Village pay a nice 165 amount for an access controlled community with a gate at one end coming off St. Lucie West 166 Blvd and a gate at Glades Cut-off Road. That is a private road, it’s maintained by the 167 residents, they pay for access control and to have this on the map is disturbing. She asked 168 when the map was adopted. 169 Mr. Harris stated the map was adopted in 2008 by the BOCC. He stated she is correct, that 170 should not be there. 171 Ms. Hammer stated that in 2008, she knows for a fact that the association was not notified 172 about a road going through the community because she was the president. She stated 173 Planning and Zoning Commission November 18, 2010 Minutes Page 6 of 14 DRAFT some of the purple lines south of that; some of those go into another gated section of PGA 174 Village which you would not have access to. As you go north of it, staying on the roadway is 175 fine but the curve off there goes into another gated section called Castle Pines. She would 176 like to see all of that removed from this map or specifically excluded as we go into the 177 ordinance. 178 Mr. Lounds stated the agricultural community has workers protection safety issues that if 179 pesticides, herbicides and such are placed in a grove or pasture or any agricultural field; 180 there are re-entry times placed on those depending on the EPA’s regulatory issue of that 181 pesticide or whatever chemical it is. You cannot re-enter that piece of land for that period of 182 time. There should be concerns about these bike paths and walking trails parallel an 183 existing grove, vegetable or sod field or nursery; the state and federal re-entry regulations 184 need to be made available to the public based on what the grower is applying. The federal 185 law states he has to post it at his property so it is visible to the people that come to that 186 property. The state law expands that stating the signs and warnings must be maintained and 187 gates locked. His concern is for public health and the welfare and the legality of the farmer 188 that’s going to be spraying either at night, by air, by ground equipment or whatever means 189 he needs to control his right to farm. 190 Ms. Smith stated it will be taken under consideration, the comments that were made at the 191 last public hearing about agricultural is the reason why an exemption was added for 192 agricultural to the entire ordinance. The plan itself where it shows the locations of the trail is 193 conceptual; it was developed by a consultant in conjunction with county staff. Since that 194 time, several situations have come to light. A couple of them on the map are just not 195 feasible anymore such as pass through the C-23 and C-24 reservoir which never would have 196 been feasible. The conceptual map does need to be updated. Mr. Grande said it very well 197 that the map itself is conceptual however there are criteria in the ordinance that if they meet 198 that criteria and there are often several that they have to meet; then county staff may request 199 a recreational trail as an example on that property. There are other instances where we may 200 ask for a voluntary trail if it does not meet that criteria, and give extra open space credits. 201 But most of the ordinance applies to certain types of developments and there were 202 exceptions built in to protect agricultural, some single family home owners and based on 203 some of the comments that were received at the last public hearing. 204 Mr. Culverhouse asked when you say bonafide agricultural operation he assumed the county 205 accepts property appraiser’s granting of those permits. 206 Ms. Lueke states that is the statutory definition, whatever the property appraiser’s office 207 thinks is bonafide agricultural that is what we think too. 208 Mr. Culverhouse stated that because the concerns that Mr. Grande brought up, he did not 209 think this is ready to go on to the commission. 210 Planning and Zoning Commission November 18, 2010 Minutes Page 7 of 14 DRAFT Mr. Lounds stated the packet that is before us, the greenways, trails and master plan is well 211 done, it’s appreciated, it is very explanatory. He would like to re-read this in lieu of the 212 information we had because it clarifies some of the questions from the last meeting. He has 213 not had time to read or digest this other than just glancing through it tonight. He hesitates to 214 be critical with it without going through this packet. 215 Chairman Mundt opened the public hearing. 216 Jonathan Ferguson, a resident of St. Lucie County and a land use attorney stated he was 217 before the Planning and Zoning Commission the last time this ordinance was before the 218 commission and had requested that it be deferred so that comments could be provided to 219 staff. His understanding is that some folks have provided comments to staff but he did not 220 provide written comments to staff because the more he looked at the ordinance, the more he 221 realized that providing comment implies that there is room for negotiation and that there is 222 some merit to the ordinance. He stated that nothing in this draft merited further discussion or 223 adoption by the county. The preamble language and the explanatory language in the actual 224 greenways and trails master plan, it talks about the primary purpose of the master plan 225 among other purposes is to connect all of the public lands purchased by the county. So that 226 you have this wonderful network where you can get from one public piece of property that we 227 all paid for to another public piece of property and not travel on busy highways or use your 228 car but walk or ride horseback or mountain bikes and travel throughout the county. It’s a 229 great idea, no one will argue against the idea and the philosophy of implementing such a 230 plan. Unfortunately, the master plan did not address how it would be implemented and who 231 was going to pay for it. The western land owners in particular, as well as other 232 developments like the Reserve, when it was going through the review process continually 233 raised that concern with staff. What does this mean if you adopt it? Does it mean that once 234 this map is in place, if someone is lucky enough to own property with one of the squiggly 235 lines running through it, they will be required to donate property? The answer was always 236 no, no, no, no; it’s conceptual, there is going to be no requirement that you have to donate 237 property. It will be either voluntary or on public right of ways, canal right of ways and it’s just 238 conceptual, trust us. It goes to the county commission public hearing to adopt the master 239 plan, same issues were raised. Finally, a gentleman asked the same clear question. If you 240 adopt this master plan and the pretty colored map and its got a line crossing my property, 241 does that mean that I will be required to donate that land when I come in to develop that 242 property to something else other than agriculture? A staff member said on the record 243 absolutely not. This map would not require the donation of property, two years later, there is 244 an ordinance that says that not only will you donate it but you will build it if we ask for it when 245 you come in wanting to develop your property in which you have the right to develop. It 246 comes down to a moral question and wants right, if this county what’s to implement a plan 247 like this, it should do the right thing and come up with a comprehensive plan on how to fund 248 Planning and Zoning Commission November 18, 2010 Minutes Page 8 of 14 DRAFT it. If you pass it forward, the recommendation is that it should be denied or kicked back to 249 staff. 250 Chairman Mundt closed the public hearing. 251 Mr. Reynolds stated he has some concerns on page 32; the language needs to be changed. 252 Mrs. Hammer asked a question regarding the ordinance, page 2 part A line 92 and 99. If 253 you remove the part on the sentence that says ‘or on private property’ will that eliminate 254 some of the concerns that have been raised? 255 Ms. Smith stated she does not think it would entirely, it would have to be throughout the 256 entire document because there are references throughout the ordinance. 257 Mrs. Hammer stated that was just one suggestion, the next thing on the ordinance is on 258 page 4 and 5 which has a numbering problem. What is suppose to be on page 7, line 306 259 ‘A’? 260 Ms. Smith stated it was probably an error, when you have a red line version and you go in 261 and enter-text it changes the formatting. It can be fixed. 262 Mrs. Hammer asked about page 8, line 381 to 386, it states that if you voluntarily give up the 263 green way that you would be given 2 times the open-space credits; why? 264 Ms. Smith answered that it is up to 2 times the open-space credit and it will be determined 265 on a site by site basis, based on the value of that voluntary trail to the overall master plan. 266 The reason for that is to provide an incentive for a developer to provide a voluntary trail. 267 Mrs. Hammer stated that makes her very uneasy. 268 Mr. Grande objected also. 269 Mr. Satterlee stated if there is an open space requirement, there would be some credit as an 270 incentive that would change the open space requirement simply because they would donate 271 the land for the trail. 272 Mr. Grande stated it appears that the trail in and of itself would qualify as open space. 273 Mr. Harris stated greenways and trails are not his forte but we are asking for a donation and 274 technically they are required to be compensated in some form or another when land changes 275 hands. That would be the form of compensation; giving the extra credit versus cash 276 payment for that easement and/or right or way. 277 Mr. Grande stated in the PUD, which is where this is relevant, that open space would be a 278 part of the association’s land not the developer’s land. 279 Planning and Zoning Commission November 18, 2010 Minutes Page 9 of 14 DRAFT Mr. Satterlee stated just in that case it might allow less of a common open-space 280 requirementand more open-space in the yard. Staff will take a look at that and analyze it 281 . further 282 Mr. Harris made a point stating the difference would be if it was a private trail or open to the 283 public. 284 Ms. Hensley stated her concerns are negotiations every time. The rules should be applied 285 consistently without negotiations. When someone says “more than likely” or “probably”, that 286 is too much leeway; it needs to be specifically spelled out so everyone understands what the 287 rules are. 288 Chairman Mundt stated there is a consensus from the commission that some good and fair 289 issues have been brought up and some further work needs to be done whether that’s by staff 290 work only or a workshop. 291 Ms. Lueke stated the staff would recommend taking it to a Board of County Commissioners 292 workshop to discuss the policy implications. 293 Chairman Mundt stated his personal opinion that it needs more work before it goes to the 294 Board. 295 Mr. Lounds stated enough issues have been brought up between the board and public 296 comment that needs to be brought back to the Planning and Zoning Board to be hashed 297 through again with more public comment before it goes to a workshop. 298 Ms. Lueke stated that staff’s recommendation that this goes back to the Board of County 299 Commissioner at an informal meeting. 300 Ms. Morgan asked if there was a time frame that this has to be rushed through right away. 301 Her concern is the board gets this packet tonight which has a lot of comments and meeting 302 minutes that have not gone through and digested. This board has not been properly 303 prepared to review everything to make more comments. 304 Ms. Lueke stated it would be better if staff withdrew the ordinance and re-advertise when it’s 305 time to bring it back. 306 Mr. Harris understood that Mr. Culverhouse wanted public comment committed to record. 307 He wanted to address one of the items that Mr. Ferguson brought up regarding the cost of 308 the multi-purpose path. He believed Mr. Ferguson was utilizing a number that’s an average 309 throughout the State of Florida; if a county number was utilized based on concrete that we 310 have to purchase, based on the rule of thumb 10% for mobilization and clearing 10% for 311 permitting and design; my number comes in the range of $250,000 for one mile. He just 312 wanted to make that a record. 313 Planning and Zoning Commission November 18, 2010 Minutes Page 10 of 14 DRAFT Mr. Grande made the motion to accept staff withdrawal. 314 Ms. Morgan seconded. The motion carried 9-0. 315 B. Chapter 5 LDC Revisions 316 Petition of St. Lucie County to amend Chapter 5 of the Land Development Code of St. 317 Lucie County. Staff comments and presentation by Michael Brillhart. 318 Mr. Brillhart stated this item is a continuation of proposed ordinance 10-014 pertaining 319 specifically to revisions to Chapter 5, adequate public facilities of the Land Development 320 Code (LDC). In 1991 the Land Development Code was adopted and within Chapter 11, 321 Administration of the LDC, there was a section called major and minor site plans. Within that 322 administration section is information regarding traffic impacts reports. Traffic impact reports 323 primarily deals with concurrency issues regarding the impacts of new development upon the 324 county’s regional roadway system. Staff believes relocating that information out of Chapter 325 11 into Chapter 5 is more appropriate. A summary of these proposed LDC changes as 326 reflected within Ordinance 10-014 include relocating the Transportation Impact Report (TIR) 327 criteria currently found within Chapter 11; adding new definitions in Chapter 2; Revising the 328 TIR trip generation threshold requirement to a minimum 51 gross peak hour project trips and 329 eliminating the adopted maximum 2 mile “Study Area” requirement currently located in 330 Section 11.02.09 and replacing it with a new “Radius of Development Influence”. As 331 proposed, these changes will have minimal impacts on development projects that generate 332 150 or less peak hour trips but will increase the radius of development influence to 3 miles 333 for projects generating more than 150 peak hour trips. Comparably, projects generating over 334 1,000 peak hour trips would be required to use a 5 mile radius of influence. Staff 335 recommends that the Planning and Zoning Commission forward Ordinance 10-014 to the 336 Board of County Commissioners with a recommendation of approval. 337 Ms. Caron asked if there was anything in the ordinance that addresses seasonal. 338 Mr. Brillhart stated yes, page 7 line 16, it is required that peak hour traffic to be seasonally 339 adjusted. 340 Mr. Lounds asked about the methodology on page 4; are those methods part of state 341 ordinance, state codes, state rules, and state statues at this time. 342 Mr. Brillhart stated no, those are not. The current LDC requires a methodology meeting on 343 every project but staff wanted to provide more guidance as to the reason and the rationale 344 for those meetings. 345 Mrs. Hammer asked about page 2 of 12 of the ordinance, the last two lines, there is a 346 definition of area of development influence. Then page 3, line 11-12 again it’s area of 347 development influence but the definitions are not the same. Are they supposed to be? 348 Planning and Zoning Commission November 18, 2010 Minutes Page 11 of 14 DRAFT Mr. Brillhart stated the definition on page 3, line 11 and 12 is the accurate definition. 349 Mrs. Hammer continued questions regarding page 3; paragraph B and under 5.06.05 to 350 break it into 2 separate paragraphs. On page 4, line 22 the word ‘foregone’ is unclear. Line 351 37 through 44 is all one sentence and needs to be broken down and separated. It would be 352 easier to understand. Page 5, line 5 ‘Level of Significance’, is it under paragraph B; it should 353 be made clearer. On page 8, line 16-17 it refers to Growth Management director, it should 354 match what is on line 41-42 which is Planning & Development Services director. Page 10 of 355 12, above part B, does there need to be a part A? 356 Ms. Young stated part A begins on page 2 line 31which is the text of the ordinance. 357 Chairman Mundt opened the public hearing. 358 No one spoke. 359 Chairman Mundt closed the public hearing. 360 Mr. Grande made the motion to approve as amended. 361 Mr. Schader seconded. The motion carried 9-0. 362 C. Ordinance No. 10-033 – Eminent Domain Waivers – continued from 363 September 16, 2010 meeting. 364 Petition of St. Lucie County to amend the St. Lucie County Land Development Code to 365 provide Eminent Domain Waivers by amending Section 2.00.00 “Definitions” to 366 include definitions of Acquiring Authority and Eminent Domain Waiver; further 367 amending Chapter 10 to add Section 10.03 “Eminent Domain Waiver” to provide for a 368 waiver where Eminent Domain action renders a site non-conforming; amending Board 369 of Adjustment power to include these waivers; providing for conflicting provisions; 370 providing for applicability; providing for severability; providing for filing with the 371 Department of State; providing an effective date; providing for adoption and providing 372 for codification. Staff comments and presentation by the County Attorney’s Office. 373 Mrs. Barbieri stated this agenda item came before the board in September and at that time 374 there were some questions asked and staff was asked to research it and get back to the 375 board. The main issue at that time was whether there should be any wording put in the 376 ordinance to prevent the usage of the waiver from being used in a court of law. Courts have 377 historically considered whether variances or waivers might be given in the past and using 378 their weighing system, they would give some weight to it. Staff gave a quote from one of the 379 cases that Mr. Culverhouse provided as to why they did getsome weight to it. At this time, 380 staffis not recommending to put any language into the ordinance that would prevent the 381 acquiring authority from using this evidence in a court of law. Outlining again what this 382 Planning and Zoning Commission November 18, 2010 Minutes Page 12 of 14 DRAFT ordinance would do; it would allow eminent domain waivers for three types of parcels. It 383 provides a procedure where you go to the Board of County Commissioners first and if they 384 agree that it should be an eminent domain waiver then it would go to the Board of 385 Adjustment, who could agree with it, modify it or they could deny it. It allows for either the 386 condemning authority or the property owner to apply for it and there is no requirement at all 387 that the property owner actually if there is a waiver given and a care plan that they actually 388 implemented it is completely up to their discretion. It also gives new definitions of eminent 389 domain action and waiver that would be incorporated into the Land Development Code. We 390 are recommending it to be passed to the county commissioners with an approval 391 recommendation. 392 Mr. Culverhouse stated his concern that last time was that he is aware that this is allowed to 393 be admitted into evidence and certain instances in court and eminent domain proceedings. 394 His concern is that it increases the power of the condemning authority over the property 395 owner, home owner, or land owner. Also, the condemning authority having the power to 396 apply for a waiver rather than just the land owner; evidence of the possible waiver that could 397 be obtained can be introduced in evidence now by the condemning authority. What bothers 398 him about this proposed ordinance is the condemning authority being able to have the power 399 to apply for and the Board of County Commissioners is given the authority to continue 400 indefinitely the hearing on it. He thinks that he would prefer if a waiver is applied for by 401 either the land owner or the condemning authority prior to the time of the trial on damages 402 where the land owner is attempting to get just compensation for damages for the severance 403 of the property that it be required in the ordinance that the hearings by the Board of County 404 Commissioners and the decision by the Board of Adjustment be concluded prior to the 405 beginning of that trial. So that however it goes out, it can be introduced into evidence. If it is 406 denied, then it’s denied but he is leery and don’t think it’s fair. He is concerned about the 407 rights of the home owner or the property owner being trampled on because government is 408 toobusy to get this done before the trial on the damages. He does not like the idea of big 409 brother being able to apply for the waiver. He also has a problem on page 7, paragraph A. 410 It says… ‘after the acquiring authority takes possession of real property subject to an 411 eminent domain action’. Why is it possession there and why is it ‘takes’ and on paragraph C, 412 line 3…’takes an interest in or title to some part of the parent tract’. He understands that the 413 condemning authority might only be asking for an easement so it would not be taking title, it 414 would just have an easement interest or it could be taking full title but why is the…it says 415 takes an interest in or title to (take out the extra “in”) there as opposed to possession above 416 in paragraph A. After the quick taking is done that is when the condemning authority 417 deposits the money in the registry and the court allows the condemningauthority to go 418 ahead to take the property, you can get into all kinds of dances around what possession 419 means. 420 Planning and Zoning Commission November 18, 2010 Minutes Page 13 of 14 DRAFT Mrs. Barbieri stated she agreed with him on paragraph A. When doing some tweaking, they 421 should have done that also. 422 Mr. Culverhouse asked what about being able to provide that if regardless of who applies for 423 the waiver; if it is before the condemning authority takes an interest or title in the property or 424 it’s before the trial on damages that that waiver be completed by both the Board of County 425 Commissioners and by the Board of Adjustment prior to the beginning of the trial and there 426 has to be some requirements on the property owner if the property owner, if they applied that 427 they apply within a certain time period to allow so that the Board could hear it and they could 428 also go to the Board of Adjustments. He has a problem with the idea that it could be applied 429 for and not be voted on by the Board of County Commissioners with their final decision and 430 not have a decision from the Board of Adjustment. Then evidence of the application is 431 submitted to the court and something happens and it’s denied and the property owner’s 432 damages have been reduced. 433 Mrs. Barbieri stated that staff agrees with that philosophy; hopefully the waiver would be 434 completed and the results from the Board of Adjustment obtained before that hearing in court 435 so they would have the definite information. She is not sure if that should be put in the 436 ordinance. That would be information that the courts would want and it would be looked into 437 and provide that information to the Board of County Commissioners that that is a 438 recommendation. 439 Mr. Culverhouse stated after practicing law for over 35 years, it has been his experience that 440 whatever can go wrong usually does. He does not see the harm in providing that if either the 441 land owner or the condemning authority applied for it, that the issue would have to be 442 decided, prior to the trial on damages and it would not apply if the condemning authority 443 already had title to and then even the condemning authority or the property owner applied for 444 it. He thinks there should be a requirement that it is completed prior to the condemning 445 authority and the land owner having to address the issue of damages before a jury. 446 Mrs. Barbieri stated she agrees that it should be provided to them; and will let the Board of 447 County Commissioners know that he wants that information incorporated in the ordinance. 448 Staff’s position is to give it more thought on whether there is a restriction in case there is that 449 one situation where something happens and someone is making unreasonable delays. 450 Chairman Mundt opened the public hearing. 451 No one spoke. 452 Chairman Mundt closed the public hearing. 453 Mr. Schader made a motion that after considering the testimony presented during the 454 public hearings including staff and public comment; he moves that the Planning and 455 Planning and Zoning Commission November 18, 2010 Minutes Page 14 of 14 DRAFT Zoning Commission approve Ordinance 10-033 providing for eminent domain waivers 456 forward to the Board of County Commission. The prior concerns of this Board were 457 addressed and reviewed and included in this motion add all the recommendations 458 made by Mr. Culverhouse during tonight’s meeting. 459 Mr. Lounds seconded. The motion carried 9-0. 460 IV. OTHER BUSINESS 461 A. Planning and Development Services Director Comments. 462 Mr. Satterlee stated the Backbone team has been working very hard on the Research Park 463 PNRD Plan and hopes to bring the project before the board by January; no later than the 464 February meeting. 465 B. Other business at the discretion of the Planning and Zoning Board 466 members. 467 Chairman Mundt welcomed Mr. Grande back to the Planning and Zoning Commission. 468 There is no meeting in December. 469 Ms. Hammer asked staff when is Chapter 10, 11 and 12 coming back. 470 Mr. Satterlee stated there were some staff changes; and the comments from Planning and 471 Zoning are being incorporated and once staff makes sure it is right; it will be brought back to 472 the planning board for a workshop. 473 Mr. Lounds stated the turkey industry is in dire need of help. If you are not going to have 474 turkey for Thanksgiving, buy out and give it away. Due to the increase cost of grain, they 475 need all the help they can get. 476 V. ADJOURN 477 There being no further business, the meeting adjourned at 8:15. 478 Planning and Zoning Commission November 18, 2010 Minutes