Larry Vavroch expressed his thanks to staff for providing him with the Joint Planning Agreement (JPA) from the last meeting; he stated he is following up on the location of where a former pit mine has been inactive for five years and had been reclaimed in environmental permits for mining; and mining in that location expired five years ago, and there has been no activity. He went on to say this now has been an application to be annexed into Palm Bay and being a pit mine; rural, single-family, and future use requests were changing the zoning from agriculture to agricultural residential of Brevard County to general use; the changes in the Conditional Use Permit (CUP) is now a seven times larger mine than the 17 acres that was presented to Planning and Zoning; and there is now a rock crusher onsite that was explicitly said not at the Planning and Zoning for Brevard dust to dawn operation. He stated the two slides being shown are just showing the differences; and now that this is going across City limits, the impacts on the neighborhood do not understand City limits such as noise and dust, and the impacts to aquifer, groundwater, surface water do not suddenly stop because there is a City limit between the residential neighborhood north of it and the pit mine. He believed if there ever has been case or will be a case that the JPA applies to, this is it a 128-acre mine next to a residential community; and he asked the Board to exercise the JPA and make comments to the City of Palm Bay requesting that the zoning stay like it is now to be rural residential and that the CUP for 128-acre pit mine adjacent to that residential community be denied.
Commissioner Infantini stated she was not sure if Mr. Vavroch knows that this case in 2011 has already been turned over to the County Attorney; this specific pit mine has been coming before the Board for years; for years this very Board has turned it down; she explained what is in question is a property owner would like to build a big burrow pit which they currently have one, but it is wanted to be expanded; it is located in unincorporated Brevard County; and this gentleman lives in a residential community that abuts the property where they would like to expand the burrow pit. She went on to say if the burrow pit was far enough away from other residences, she would not have a problem with it because that is where the County gets a lot of rocks and dirt; the problem is it abuts their property and the property owner is trying to annex into the City of Palm Bay, so those property owners would be in unincorporated Brevard County, and that new property owner would be in Palm Bay; and right now there is ability to issue a letter stating that the Board objects to the use of the CUP for the burrow pit to be expanded. She went on to say there was a Finding of Facts done in 2001, which actually stated the applicants request to expand the rock mining operating is not compatible with the character and existing land uses of adjacent nearby properties, it would result in substantial and adverse impact on adjacent properties due to noise, dust, increased traffic, and nuisance; and she asked the Board, pursuant to a JPA with the City of Palm Bay so if they annexed property, they would not do so that it would be detrimental to the adjacent property owners, and that the Board could weigh in on the decision. She is encouraging and making a motion that the Board weighs in and staff is asked to attend the Palm Bay meeting, and allow them to know that the Board is not happy that they are planning on giving a CUP to expand the burrow pit operations to the detriment of this community; the Board is their elected officials and is the only voice that they have; and for the last seven years the Board has stood up and behind them; and once this property is annexed, they are not going to have much of a voice anymore.
Chairman Barfield stated he has a Point of Order to ask Scott Knox, County Attorney, because when a public comment comes up he does not believe that the Board can make a motion on something effective, it has to be put on an Agenda.
Commissioner Infantini stated she does not think the Board has to put in on an Agenda.
Chairman Barfield inquired if that is correct. Attorney Knox responded pursuant to Resolutions for governing procedures, it is not normally done; but those may be waived if the Board wanted to.
Chairman Barfield advised that the Board needs to waive Policy first.
Commissioner Anderson stated this goes back to the Home Rule issue and he does not want to set precedence for other cities so he is not going to vote in favor; he suggested if any individual Commissioner wants to send a letter citing their concern, that is fine; but it should not be done as a Board.
Commissioner Infantini stated it is actually not really a Home Rule, they are within and he is asking the Board because right now the property has not yet been annexed; what the City of Palm Bay did was they rezoned they property that is adjacent to Mr. Vavroch's, prior to even annexing it; and she does not know how it could be rezoned that one does not own, but they are doing that. She advised this is Mr. Vavroch's last course of action before the meeting on the16th.
Commissioner Smith stated he will second the motion because he would like to hear more comments from Board members that were here in 2011; he agrees with Commissioner Infantini that Mr. Vavroch should have some voice, but he also understands Commissioner Anderson's concern of Palm Bay deeming it is necessary, or to their advantage to annex it then it is really the City's issue; and he reiterated that he would like to hear what the Board members have to say regarding this.
Chairman Barfield advised there are two more comments for the same issue.
Motion by Commissioner Infantini, seconded by Commissioner Smith, to voice opposition to the burrow pit expansion and require the property to stay zoned as is.
Commissioner Fisher stated he would like to hear the other comments before voting.
Deborah Bohnsack stated Mr. Vavroch is her neighbor in Deer Run; the folks in the community have been through a lot; they have been heard by Brevard County Planning and Zoning Board in 2010, which rejected this mine; they have been heard by this Board in 2010, which rejected the mine; in 2015 the Planning and Zoning Board and staff wrote extensive notes and this motion was also denied by the P&Z Board in 2015 by a 7:1 vote; the Board has plenty of research already on hand that was completed by staff; and the Board had agreed that this mine's location is inconsistent with the Comprehensive Plan. She went on to say there normally is an attorney and a certified planner present with her, but they are not present today; she read aloud a statement, "The recently adopted Joint Planning Agreement between Brevard County and the City of Palm Bay has a paragraph that I would like to call to your attention, because it relates to the use and enjoyment of my property, and that of my neighbor's in the Deer Run equestrian subdivision located in unincorporated Brevard County. On page eight, paragraph two it reads within the joint planning area all development orders granted by the City or the County, shall be consistent with this Agreement if the land uses, densities, and intensities permitted by such order are found to be compatible with and further the goals described in both the City and County's Comprehensive Plan." She added, the Board absolutely has the power to interject without any money or further research; and it has already been done for the Board. She continued to read aloud, "All can agree that a Conditional Use Permit (CUP) to operate a mine, and you might also call it a land alteration is in fact a development order. In November of 2015 your Planning and Zoning Department heard an application for a Conditional Use on this parcel. It is adjacent to our Subdivision in unincorporated Brevard among the evidence presented in this case was a lengthy staff report from your Planning Department. And while it is not your custom to receive recommendations of approval or denial from your staff, the staff report set forth an extensive analysis of the application based upon the County's Comprehensive Plan. The application filed by Roy Yates received a recommendation of denial by a vote of 7:1. Under ordinary circumstances an application of this type would have been forwarded to the Board of County Commissioners for final action, but not in this case. The applicant chose to go permit shopping, by filing four distinct approvals with the City of Palm Bay, an annexation, a Future Land Use element amendment, a rezoning, and finally the Conditional Use Permit for the mine. The council had conducted its first readings on all three and has voted unanimously to precede the second reading on August 16 a very short time away. On Wednesday, the 3rd Planning and Zoning Board in Palm Bay voted to deny the Conditional Use Permit with a tie vote of 3:3. The Conditional Use Permit to operate the mine will now join the other three applications in the hearing on the 16th." She asked the Board to remember this property that she is talking about is located in Brevard County; throughout this process, she is profoundly disappointed that Brevard County has not stood up for the residents in unincorporated Brevard County; it had been done in the past; she inquired what has changed; and she stated she has watched as Palm Bay has pursued the annexation of the Ace Property, and watched as their staff has actively asked and enabled a breathtaking expansion of the mine. She added, the Board denied a 30-acre mine with no rock crushing by it being incompatible with surrounding areas; it has now been expanded to 128 acres with rock crushing, but has remained silent. She stated the Board may wonder why she is so passionate about this case, it is because she lives in an equestrian community with horses that will be started by the noises coming from the site from dawn to dusk, six days a week; she is concerned about the silica dust, traffic, and water pumping that will affect individual wells that is relied upon for water; and she provided the Board with a copy of the staff report from its November Planning and Zoning meeting to look at the analysis that is already prepared regarding the Comprehensive Plan. She asked the Board to look at the ratified paragraph of the JPA these past few weeks; she stated this mine does not further the goals of the City's and the County's Comprehensive Plan; JPA specifies that development orders must coincide with both City and County Comprehensive Plans; this does not advance Brevard County goals; as a citizen and a voter of unincorporated Brevard County, she is not asking for a snap decision about the consistencies of this development; and she asked the Board to send a letter of objection to the Palm Bay City Council relating the mine until the Board can sit down to go over the plan together. She added, it is very disappointing to her and she is a fairly new resident in Deer Run to send a letter, or see one of my neighbors letters addressed to her Commissioner, and have an written reply by a staffer saying sorry it is out jurisdiction; and by Statute they cannot help her; and she realizes that Commissioner Anderson has taken a job with the City, and there is probably a large conflict of interest here.
Commissioner Anderson stated he takes exception to that because he is the Economic Development Director and he has nothing to do with Planning and Zoning; if this was Cocoa he would object; the Board knows in 2008 he ran because of Home Rule issues when the County was interjecting with municipal concerns; and Ms. Bohnsack may not have been here then; but a lot of Commissioner's know why he is so passionate about Home Rule, even if not in his district he would fight for the City because in the past previous commissions ruled with an iron fist over the cities, and that is one reason that he ran for office.
Ms. Bohnsack stated she is not in the City nor is she being annexed into the City; the item she is speaking about here affects his constituents in unincorporated Brevard County.
Commissioner Anderson stated the Board can certainly send a letter, because under Florida Statutes through the County Attorney; the annexation is not going to stop.
Ms. Bohnsack asked Commissioner Anderson to read the JPA that was only signed last month and goes over it, and issue this letter; the Board has basis in the agreement to stop this mine because staff has already determined that the mine would be inconsistent with its own Comprehensive Plan.
Commissioner Anderson advised that he does not have a problem with a letter being issued.
Arlene Murray stated everyone knows this has been going on for 10 years; she has lived in Deer Run for 22 years; she has a petition that was signed by the residents and it says, petition summary Deer Run Equestrian community residents felt the effects of the mining and de warning next door in 2006; water levels in ponds dropped, water wells suffered as a result, and hers went dry; there has been increased water problems, all day noise and dust, ground vibration, traffic, Babcock Street is almost a dirt road, and it is unsafe to ride the horses next to this active mine; and the value of homes will diversely effected and they do not allow mining next to a residential equine community, as they are not compactable. She added, she has 190 signatures that she will provide to the Board.
Commissioner Fisher advised he has always had a bit of concern of Home Rules and he expressed his appreciation for the professionalism of Mr. Vavroch letter and comments addressed to the Board; he is supportive of the Board writing a letter to the City of Palm Bay, providing them with all of the research done by Brevard County up to this point, and how the County came to its conclusion; the Board does have a concern about the mine being located next to residents; these residents will become the City of Palm Bay neighbors at some point in time if that annex happens and the City needs to be able to answer to all of the residents of Palm Bay; but he not supportive of the motion on the floor. He advised he is not saying the City has to do anything but he thinks they need to be noticed of the Board's concern about the change; and it is on the record having a concern about it; and to provide the research and the data, and all the backup files as to why the Board made its ruling at the time. He thinks the Board as a County that it can put a strong letter together with the research and findings; and that would be a motion that he would make, if the previous motion dies.
Commissioner Infantini advised affecting Home Rule Charter and Commissioner Anderson, this property is currently within the confines of Brevard County; it is part of unincorporated Brevard County; they are stepping in to Brevard's Home Rule and are circumventing Brevard's rules by all ready changing the zoning when the County disapproved a 30-acre borrow pit; Palm Bay has already approved a borrow pit of 100 acres; she sees inconsistency and if looking at Home Rule Charter is wanted to be talked about, there trying to circumvent the process by annexing property to allow a use that would otherwise be unpermitted; and that is why it is being annexed. She stated a letter is not necessarily strong enough; according to the JPA, the County has the right to tell Palm Bay that this is a non-compatible use and to be able to stop it for at least two years; going forward, it will give the residents some time to seek some other type of legal remedy; but she is not in favor of changing her motion at this time.
Commissioner Anderson stated he will support Commissioner Fisher's motion with providing the backup material of the finding of facts; under the Statues in planning if the Board objects legally, it has to have a joint meeting with the Palm Bay City Council; and if the County does not prevail, it is responsible for all legal fees.
Commissioner Smith stated in light of what has been talked about here, he is concerned for the folks who live in Deer Run, the rights of Palm Bay, and Brevard County; he does not know a whole lot about this issue, but he does know about it; he withdrew his second; and he stated he would like the opportunity that the time frame would afford him to look into this a little bit more, and maybe come back and support Commissioner Infantini wholeheartedly.
Commissioner Infantini stated the problem with that is the City's meeting is going to be on the 16th; there is not another Board meeting before Palm Bay has a vote; that is why this is so critical, that these speakers came and did it under Public Comment because they did not have enough time to get all of this wrapped up; and without a seconder, she will have to go forward with just a letter. She went on to say safeguards were put in place and the County is not willing because it is afraid of legal fees; and she will stand behind any decisions she makes and feel that the courts will honor the Board's decision.
Chairman Barfield inquired if the letter will have all of the background information of all of the previous meetings and everything else that comes along.
Commissioner Fisher stated his motion would be to ask the City of Palm Bay to reconsider the planning decision made on this property, asking them to consider withholding any decision made until it has researched the provided information from the County's Finding of Facts and that it is inconsistent for the neighborhood; giving the City all of the notes and documentations available; asking that they reconsider its decision and to work with the residents of Deer Run who is going to be the neighbors; and to not make a decision at the August 16th zoning meeting.
Attorney Knox advised there is very little, in fact there is nothing that the City can do if the City decides to annex a piece of property that abuts the City limits of Palm Bay; the JPA he has not looked over thoroughly, so he does not know if there is a problem with that or not; if the City annexes the property, the Board will have the JPA to fall back on if there is something in the JPA that allows the Board to exercise those kinds of positions that he is not aware of right now; and he will take a look at that and hopefully by the end of the day, he will have some idea of where the Board stands. He stated he has already instructed his staff to get a copy of the JPA for him to review.
Commissioner Fisher reiterated that he think sending the letter now is putting them on notice that the Board has a concern, and giving then all the findings before them going into their 16th meeting, they will know the whole entire history, why the Board had a concern with it, and ask them to think this through just a little bit more.
Attorney Knox advised that certainly can be done; they can certainly chose to follow the letter advise or they can chose to ignore it; he thinks the ultimate issue is whether the JPA has any impact on this decision that they may or may not make on the 16th; and that can be decided at a different meeting by this Board, because the JPA is still going to be there after the annexation, if that takes place on the 16th, so there is another day that the Board can come back to consider this.
Commissioner Fisher stated if Palm Bay hears its Council, they might take a more serious look at it.
Stockton Whitten, County Manager, inquired if the letter will be written for the Chairman to sign and to approve it without having to coming back to the Board. Commissioner Fisher responded affirmatively.
Chairman Barfield stated the motion is to send a letter with all the background information, delay of the decision on the 16th, and that the Brevard County Board of County Commissioners’ objects to the mine.
The Board authorized staff to create a Letter of Concern to send to the City of Palm Bay informing them that the Brevard County Board of County Commissioners are in objection to the mine, and for the concern of the Deer Run community annexing property that is abutting the City limits of Pam Bay, and to provide all County background information in Finding of Facts to help delay the City's decision at its August 16, 2016, City of Palm Bay Regular Council meeting.