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HomeMy WebLinkAbout03161994 City of Sebastian 1225 MAIN STREET n SEBASTIAN, FLORIDA 32958 TELEPHONE (407) 589-5330 [] FAX (407) 589-5570 AGENDA SEBASTIAN CITY COUNCIL SPECIAL MEETING WEDNESDAY, MARCH 16, 1994 - 7:00 P.M. CITY COUNCIL CHAMBERS 1225 MAIN STREET, SEBASTIAN, FLORIDA ALL PROPOSED ORDINANCES AND INFORMATION ON ITEMS BELOW MAY BE INSPECTED IN THE OFFICE OF THE CITY CLERK, CITY HALL, 1225 MAIN STREET, SEBASTIAN, FLORIDA. PURPOSE: Public Hearing - Vickers Grove Subdivision Sandmining Special Use Permit Request and Major Modification to Preliminary Subdivision 1. CALL TO ORDER 2. PLEDGE OF ALLEGIANCE 3. ROLL CALL 4. PUBLIC HEARING 94.073 A. Vickers Grove Subdivision - 1) Sandmining Special Use Permit Request and 2) Major Modification to Preliminary Subdivision (Director of Community Development Transmittal dated 3/4/94, Application, Plans Under Separate Cover) 5. ADJOURN ANY PERSON WHO DECIDES TO APPEAL ANY DECISION MADE BY THE CITY COUNCIL WITH RESPECT TO ANY MATTER CONSIDERED AT THIS MEETING (OR HEARING) WILL NEED A RECORD OF THE PROCEEDINGS AND MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE HEARD. (286.0105 F.S.) IN COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT (ADA), ANYONE WHO NEEDS A SPECIAL ACCOMMODATION FOR THiS MEETING SHOULD CONTACT THE CITY'S ADA COORDINATOR AT 589-5330 AT LEAST 48 HOURS IN ADVANCE OF THIS MEETING. PURPOSE: Special Use Subdivision PUBLIC HEARING SIGN-UP SHEET MARCH 16, 1994 SPECIAL MEETING Public Hearing - vickers Grove Subdivision Sandmining Permit Request and Major Modification to Preliminary NAME: ADDRESS: NAME: ADDRESS: NAME: ADDRESS: NAME: ADDRESS: NAME: ADDRESS: NAME: ADDRESS: NAME: ADDRESS: ? NAME: ADDRESS: NAME: ADDRESS: NAME: ADDRESS: NAME: ADDRESS: NAME: ADDRESS: NAME: ADDRESS: NAME: ADDRESS: NAME: ADDRESS: NAME: ADDRESS: City of Sebastian 1225 MAiN STREET g SEBASTIAN, FLORIDA 32958 TELEPHONE (407) 589-5330 [] FAX (407) 589-5570 MINUTES SEBASTIAN CITY COUNCIL SPECIAL MEETING WEDNESDAY, MARCH 16, 1994 - 7:00 P.M. CITY COUNCIL CHAMBERS 1225 MAIN STREET, SEBASTIAN, FLORIDA ALL PROPOSED ORDINANCES AND INFORMATION ON ITEMS BELOW MAY BE INSPECTED IN THE OFFICE OF THE CITY CLERK, CITY HALL, 1225 MAIN STREET, SEBASTIAN, FLORIDA. PURPOSE: Public Hearing - Vickers Grove Subdivision Sandmining Special Use Permit Request and Major Modification to Preliminary Subdivision Mayor Firtion called the Special Meeting to order at 7:00 p.m. 2. The Pledge of Allegiance was recited. 3. ROLL CALL City Council Present: Mayor Arthur Firtion Vice Mayor Carolyn Corum Mrs. Norma Damp Mr. Robert Freeland Mr. Frank Oberbeck Staff Present: Acting City Manager, Kathryn M. O'Halloran city Attorney, Charles Nash Director of Community Development, Bruce Cooper Deputy City Clerk, Sally Maio Special City Council Meeting March 16, 1994 Page Two 4. PUBLIC HEARING 94.073 A. Vickers Grove Subdivision - 1) Sandmining Special Use Permit Request and 2) Major Modification to Preliminary Subdivision (Director of Community Development Transmittal dated 3/4/94, ApDlication, Plans Under Separate Cover) Mayor Firtion announced that the portion of the hearing on major modification to preliminary subdivision has been continued to April 20, 1994. (see staff memo attached) Mayor Firtion opened the public hearing at 7:05 p.m. The City Attorney advised on procedures for the quasi-judicial hearing, and then asked all parties interested in testifying to stand and proceeded to swear them in. (see sign-up sheet attached) Warren Dill, legal counsel for applicant Dr. Henry Fischer addressed City Council, stating that the application for special use permit had been filed under protest, reasons for which were detailed in a letter to the Director of Community Development dated March 14, 1994 (see attached), said the applicant agrees, if the permit is approved, that he is forever bound to the city's regulations on mining and excavation, however, if the use is denied he reserves the right to challenge the City's requirement for compliance with those regulations. The Director of Community Development said staff was comfortable bringing this application to City Council. The City Attorney further explained that the applicant's position was based on the fact that the sandmining operation was in effect prior to annexation, recommended that City Council accept the applicant's offer in the best interest of the City and inquired whether the city Council is amenable to the offer. MOTION by Oberbeck/Freeland I would move that we accept the offer of Mr. Fischer with regard to the sandmining operation at the Vickers Grove Subdivision, the offer pertaining to our Land Development Code and land use. Special City Council Meeting March 16, 1994 Page Three ROLL CALL: Mrs. Corum - nay Mrs. Damp - aye Mr. Freeland - aye Mr. Oberbeck - aye Mayor Firtion - aye MOTION CARRIED 4-1 (Corum - nay) Mr. Dill offered his letter to Mr. Cooper for City Council review. The City Clerk noted that staff had been unable to submit it to city Council prior to the hearing due to the hearing's quasi-judicial nature. Mr. Dill made an opening statement on behalf of the applicant, urging approval of the application. Randy Mosby, Mosby and Associates, Vero Beach, testified on behalf of the applicant. TAPE I - SIDE II (7:33 p.m.) Mr. Mosby's testimony continued. He submitted the following exhibits: construction drawings (Exhibit 1); findings of fact from Resolution No. R-88-19 (Exhibit 2); findings of fact from R-90-19 (Exhibit 3); and St. John's River Water Management District permit dated November 9, 1993 (Exhibit 4). Mr. Oberbeck was excused from 7:45 p.m. to 7:46 p.m. Mr. Mosby's testimony continued. He stated that this was the last time a request for a sandmining extension for this area will come before City Council. Mr. Mosby submitted further exhibits as follows: 20A-3.5 of the Land Development Code regarding RM-8 conditional uses (Exhibit 5); Section 20A-3.14 regarding Industrial permitted uses (Exhibit 6); Section 20A-5.20 regarding excavation and mining, Section 20A-5.29 water management standards, Section 20A-5.30 regarding operating conditions of mining, Section 20A-5.36 regarding duration and completion of permits (Exhibit 7). 3 Special City Council Meeting March 16, 1994 Page Four Mr. Mosby's testimony continued. Mayor Firtion called recess at 8:04 p.m. and reconvened the meeting at 8:15 p.m. Ail members were present. The City Attorney inquired whether anyone sworn in intended to cross-examine Mr. Mosby at this time. All but Mr. Metcalf declined. TAPE II - SIDE I (8:17 p.m.) Mr. Mosby testified in response to George Metcalf relative to water quality tests. Mr. Mosby testified in response to Mrs. Corum stating that the existing lake is 65.2 acres, and the operation will increase by 45%; discussed the lake depth; and said for the record, the hours of operation are stated on the drawings and are the same as for previous mining permits. Charles Cramer testified on behalf of the applicant, stating that only four new building permits have been issued since May 1990 in a 1/4 mile radius of the subject property, read a letter dated March 5, 1994 from John Sykes, 222 Caprol Lane and submitted it to the City Clerk (Exhibit 8). The City Attorney inquired whether anyone wished to ask any questions of Mr. Kramer. In response to Mrs. Corum, Mr. Kramer testified that he was a Supervisor for Henry Fischer and Sons. Abe Kreitman, 1417 Alpha Court, West Palm Beach, Florida, registered professional hydrologist, testified on behalf of the applicant, citing satisfactory results and conclusions of study of the possible adverse impacts on groundwater. Mr. Kreitman testified in response to Victor Williams. TAPE II - SIDE Ii (8:50 p.m.) Special City Council Meeting March 16, 1994 Page Five Ail others in the audience declined the opportunity to ask questions of Mr. Kreitman. Mr. Kreitman testified in response to Mr. Freeland and Mrs. Corum, relative to monitoring for groundwater saltwater intrusion; in response to Mayor Firtion as to how the sandmine operation will add to the groundwater level; in response to Mrs. Corum relative to insignificant run-off into the lake and discussed a principle known as the Hygben-Gertzberg relationship pertaining to water density. Mr. Oberbeck was excused from 9:13 p.m. to 9:15 p.m. Mr. Kreitman's testimony continued. Mayor Firtion called recess at 9:15 p.m. and reconvened the meeting at 9:25 p.m. Ail members were present. Victor Williams, 358 Concord Avenue, Sebastian, testified relative to lack of traffic on Concord and extension of the sandmine east and west. TAPE III - SIDE I (9:33 p.m.) George Metcalf, 425 Pine Street, Sebastian, testified relative to decrease of tax base due to elimination of acreage and alleged violation of FS 163 Part Two by the elimination of all multi-family and some industrial. Mr. Metcalf testified in response to Mr. Dill, stating he had no written documentation regarding assessments, and quoting from a Press Journal article dated November 2nd relative to a comment by James Frazee, Chief Hydrogolist for St. John's. Mr. Metcalf submitted two photographs dated 1991 and December 7, 1993. Mr. Dill objected to submittal of the photographs as evidence without further information. Bruce Cooper, Director of Community Development submitted a memo from Planning and Zoning dated March 4, 1994 recommending approval of the special use permit (Exhibit 9); said he had been in contact with Special City Council Meeting March 16, 1994 Page Six the state relative to the Comprehensive Land Use Plan and stated that city is in compliance, submitting the computations for multi-family (Exhibits 10 and 11); and distributed a recommendation from him dated March 16, 1994 (see attached). The Director of Community Development said staff has no objection to Saturday operation 7 a.m. to 5 p.m. as the applicant has requested. Mr. Cooper testified in response to Victor Williams, 358 Concord Avenue, Sebastian, relative to Concord Avenue right-of-way. TAPE III - SIDE II (10:02 p.m.) Mr. Cooper testified in response to Fred Mensing, about how the 7 to 5 operation deadline can be amended in case of emergency need for sand. Mr. Cooper testified in response to Mrs. Corum regarding to reduction of the tax base, not a relevant issue in accordance with the City Attorney's opinion. Mr. Cooper provided three original letters of no objection received in response to letters sent to surrounding property owners (see attached). Dr. Henry Fischer gave closing comments relative to reduced need for multi-family housing and urged approval of the special use permit. Mrs. Corum inquired what will happen to the lake when the subdivision is completed. Dr. Fischer said he had no objections to staff conditions. Mayor Firtion closed the hearing at 10:15 p.m. 6 Special City Council Meeting March 16, 1994 Page Seven MOTION by Oberbeck/Corum I would move that we approve the special use permit for Vickers Grove sandmining subject to the applicant meeting the requirements in Mr. Cooper's letter of 3/16/94 and continue the public hearing on the portion regarding the major modification to the preliminary subdivision until April 20, 1994 and to allow Saturday operations until such time as the city Council in sole discretion determines that Saturday operations constitutes a nuisance to the neighborhood. ROLL CALL: Mrs. Damp - aye Mr. Freeland - aye Mr. Oberbeck - aye Mayor Firtion - aye Mrs. Corum - nay MOTION CARRIED 4-1 (Corum - nay) The City Attorney advised that a resolution to issue the special use permit will be drafted and brought back to city Council. Being no further business, Mayor Firtion adjourned the Special Meeting at 10:20 p.m. ved at the Meeting. Kathryn~M. O'Halloran, CMC/AAE City Clerk , 1994, City Council Arthur L. Firtion, Mayor City of Sebastian 1225 MAIN STREET 13 SEBASTIAN, FLORIDA 32958 TELEPHONE (407) 589-5330 I::] FAX (407) 589-5570 M ~ M 0 R A N'D U M DATE: TO: FROM: REFERENCE: March 16, 1994 Mayor Firtion & City Council Bruce Cooper n~~ Director of Community Developme Vicker's Grove Preliminary Plat Please be advised that staff is recommending to continue the public hearing only on the portion regarding the major modification to the preliminary subdivision known as Vicker's Grove to April 20, 1994 at 7:00 P.M.. This is due to the fact that the applicant's engineer has not completed all necessary construction drawings related to the amendment to the preliminary subdivision. The applicant should be made aware that all necessary documents to complete his preliminary subdivision application must be submitted to the City Clerk's office no later than April 11, 1994. Thank you. BC/gk vgpp.wp PUBLIC HEARING SIGN-UP SHEET MARCH 16, 1994 SPECIAL MEETING PURPOSe: Public aearing - Vickers Grove Subdivision Speclal Use Permit Request and Major Modification to Subdivision Sandmining Preliminary NAME: ADDRESS: ADDRESS: NAME: ADDRESS: NAME: ADDRESS: NAME: ADDRESS: NAME: ADDRESS: NAME: ADDRESS: NAM$: ADDRESS: NAME: ADDRESS: NAME: ADDRESS: NAME: ADDRESS: ADDRESS: NAME: ADDRESS: NAME: ADDRESS: NAME: ADDRESS: W. Dxr L, P. A. ATTOR.NEy:AT - LAW WAEIr,~q W. DILL MlSMBtu OF: I~,O]~IDA WYO~G ~ WA~A~SO ON~ BUILDING 9025 U. $.]fW'Y*. 1, SUIT~ 4 S~BAS11AN, I~LOZ~IDA (407) 889-121:2 FAX (40?) March 14, 1994 Mr. Bruce Cooper Director of Community Development City of Sebastian 122~ Msin Street Sebastian, FL 32958 Spcdal Use Permit Requirement for expansion of Vickers Sand Mine Dear Bruce: When my client, Henry A. Fischer, submitted his application for a Special Usc Permit it was under protest by cover letter dated February 23, 1994. This letter will set forth our reasons why a new Special Use Permit is not required to mine additional areas within Vickers Grove. This property was annexed into the City in 1987 by Ordinance No. 0-8%10. When this property was annexed, there was an active sand mining operation in.place for the entire property. On March 23, 1988 my client received a Special Usc Permit for sand mining pursuant to Resolution No. R-88-19. This Resolution did not limit the duration of thc permit or thc area that could be mined. In other words it was endless and covered ail of thc property owned by Sebastian General Partnership, B.F,T. (now owned by Hemy A. Fischer). It is questionable as to whether my client should have been required to apply for this first Special Usc Permit. When the property was annexed, it was an active sand mining operation. This fact was known to thc City. The annexation ordinance does not address this subject or in any way attempt to limit thc area of the sand mining or the time frame in which it could continue to exist. Therefore there is nothing in the annexation ordinance that would require thc sand mining operation to receive any further approval from thc City. When the City annexed this property, it took it subject to the nsc in place. When this property was armexcd in 1987 thc City had no sand mining regulations. When the first Special Usc Permit was issued on March 23, 1988, the City still had no sand mining regulations. The first sand mining regulations of thc City were adopted by the City on November 30, 1988 by Ordinance No. 0-88-27. Therefore the entire sand mining operation at.Vickcrs Grove is a valid prior existing usc and as such is not subject to regulation by thc City. This argument holds regardless of whether Resolution R-88-19 should have been required at all, since this Resolution had no expiration date or limit on the area that could be mined. In essence Resolution R-88-19 allows sand mining Mr. Bruce .Cooper Page 12 March 14, 1994 anywhere on the property and as long as mining activities continue. When my client wanted to mine an adjacent area of the property they were told they had to get another special usc permit, just as they were told to do this time. As a result my client did apply for and receive a new Special Use Permit, pursuant to Resolution No. R-90-19 for approximately 16.38 acres. When Resolution No. R-90-19 was adopted it contained a condition requiring my cl/ent to comply with the City's mining regulations that were now/ri force (Sect/on 20A - 5.29 and 20A - 5.30 LDR). Tiffs Resolution also I/mited the term of the permit to one (1) year, as per Section 20A - 5.36, subject to being renewed annually. ReSolution No. R~90-19 contained a ~Conflicff provision, which states that 'all resolutions or parts of resolutions in conflict herewith are hereby repealed". There is no reference to a specific resolution that is being repealed. At best it could be argued by the City that Resolution No. R-88-19 was repealed as far as applicability to the 16.38 acrcs permitted under Resolution No. R-90-19, since they both dealt with the same 16.38 acres and the later Resolution would be ordinarily governs. However, I am of the opinion that this argument would fail because my client was misinformed as to the need to apply for a new permit when they already had a Special' Use Permit issued by Resolution No. R-88-19. The Special Use Permit issued by R~solution No. R-88-19 is still valid for all of the Vickers Grove property, except arguably the ~6.38 acres. Therefore my client does not need to obtain another Special Use Permit to continue.the sand mining operation on thc same property. We are not expanding the sand mining operation beyond the property that it was already occurring on when the property was annexed and when Resolution No. R-88-19 was adopted. I agree that so long as there is an approved Preliminary Plat for thc Vickers Grove Subdivision that the Preliminary Plat needs to be amended to reflect the removal of certain lots in order to accommodate the sand mining operation. However, this is the only approval my client needs from the City. Because the City has required us to file an application for a new Special Use Permit, my client has incurred substantial expenses already and will incur additional expenses in preparing for the quasi-judicial hearing. Because this is a very important matter to my client we fecl like we have no alternative but to have a court reporter present. If we should end up in litigation over this, we will bc seeking monetary damages in addition to permission for the sand mining operation to continue on the property. If we arc required to proceed with the quasi-judicial hearing on the Special Use Permit, I am hopeful that the Council will determine that the evidence presented is sufficient to warrant approval. Particularly when staff has stated that it has no objection to the issuance of the Special Usc Permit. Assuming that we are required to obtain a new Special Use Permit, I request that the quasi- judicial hearing on the Special Use Permit be held first. After that hearing is concluded and closed, Mr. Bruce Cooper Page 3 March 14, 1994 I will then' preseni my client's position on amending the Preliminary Plat. Since the amendment of a Preliminary Plat is only a public hearing and not a quasi-judicial hearing, I do not intend to call any witnesscs or to otherwise conduct this request as if it were quasi-judicial. If you have any other authority, please let me know by Tuesday afternoon so that i am prepared for the Wednesday evening meeting. Very truly yours, Warren W. Dill cc: Dr. Henry A. Fischer City of Sebastian 1225 MAIN STREET n SEBASTIAN, FLORIDA 32958 TELEPHONE (407) 589-5330 n FAX (407) 589-5570 MEMORANDUM DATE: TO: FROM: REFERENCE: March 16, 1994 Mayor Firtion & City Council Bruce Cooper Director of Community Developme~~-~ Recommendation Regarding vicker's Grove Sand Mine Below are the recommendations from staff regarding.the approval of Vicker's Grove Sand Mine and if the City Council elects to approve the applicant's permit: 1. Applicant to provide ~pdated performance bonds to include Phase III and the new proposed area pursuant to Section 20A- 5.30(e). Applicant to provide revised plans to indicate compliance with Section 20A-5.29(b),(c),(d),(e),(f),(g) and (h). Applicant to revise plans to indicate this project into two phases pursuant to Section 20A-5.30(c)(1). Applicant to provide'a legal description for both phases to be included within the resolution for adoption. This approval will be subject to Section 20A-5.20 through Section 20A-5.37 of the Land Development Code. BC/gk recomvg.wp ~. ...... ~,~ ~ ~. ..... ..................................................................................