PLANNING AND ZONING COMMISSION (P&Z)

Sam Zimmerman-District 2 Jens Tripson-District 3 Jonathan Day-District 4 Brad Emmons-District 5 Todd Brognano-Member at Large George F. Hamner, Jr.,-Member at Large

Carol Johnson- Non-voting liaison School Board

Donna A. Keys-District 1, Vice Chairman

The Planning and Zoning Commission will meet at 7:00 p.m. ON THURSDAY, February 24, 2011, in the County Commission Chambers of the County Administration Building, I 80 I 27th Street, Vero Beach.

THE PLANNING AND ZONING COMMISSION SHALL ADJOURN NO LATER THAN 11 :00 P.M. UNLESS THE MEETING IS EXTENDED OR CONTINUED TO A TIME CERTAIN BY A COMMISSION VOTE.

ITEM#!

ITEM#2

ITEM#3

ITEM#4

AGENDA

CALL TO ORDER AND PLEDGE OF ALLEGIANCE

ELECTION OF CHAIRMAN AND VICE CHAIRMAN

APPROVAL OF MINUTES

A. December 9, 2010

PUBLIC DISCUSSION

A. David Damerau' s appeal of a decision by the community development director that a nonconforming junk yard/salvage yard use at 4410 45th Street has ceased for more than one year and cannot be re-established. (Code Case 20l0050118) [Quasi-Judicial]

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ITEM#5

ITEM#6

ITEM#7

ITEM#8

ITEM#9

PUBLIC HEARINGS

A. County Initiated Request to Amend Comprehensive Plan Future Land Use Element Policy 1.16 to Allow up to 25% Recreational Vehicle Use in Mobile Home Rental Parks ofless than 20 Acres in Size [Legislative)

B. A-1 Walee Recycling Center: Luisa Garcia's request for special exception use approval for a demolition debris facility and for administrative permit use approval for an associated recycling facility to be known as A-1 Walee Recycling Center. Located at 6350 9th Street SW, on the north side of 9th

Street SW, east of 66th Avenue. Zoning Classification: A-1, Agricultural 1 (up to 1 unit per 5 acres). Land use designation: AG-1, Agricultural (up to 1 unit per 5 acres). (2000090170-66004/ SP-SE-11-01-01) [Quasi-Judicial)

COMMISSIONERS MATTERS

PLANNING MATTERS

A. Planning Information Package

ATTORNEY'S MATTERS

ADJOURNMENT

ANYONE WHO MAY WISH TO APPEAL ANY DECISION, WHICH MAY BE MADE AT THIS MEETING, WILL NEED TO ENSURE THAT A VERBA TIM RECORD OF THE PROCEEDINGS IS MADE, WHICH INCLUDES THE TESTIMONY AND EVIDENCE ON WHICH THE APPEAL IS BASED.

ANYONE WHO NEEDS A SPECIAL ACCOMMODATION FOR THIS MEETING MUST CONTACT THE COUNTY'S AMERICANS WITH DISABILITIES ACT (ADA) COORDINATOR AT 772-226-1223, (TDD #772-770-5215) AT LEAST 48 HOURS IN ADVANCE OF THE MEETING.

Meeting may be broadcast live on Comcast Cable Channel 27 - may be rebroadcast continuously Saturday 7 :00 p.m. until Sunday morning 7:00 a.m. Meeting broadcast same as above on Comcast Broadband, Channel 27 in Sebastian.

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:C.T£fY) 3A

PLANNING AND ZONING COMMISSION

There was a meeting of the Indian River County (IRC) Planning and Zoning Commission (P&Z) on Thursday, December 9, 2010 at 7:00 p.m. in the Commission Chambers of the County Administration Building, 1801 2J1h Street, Vero Beach, Florida. You may hear an audio of the meeting; review the meeting agenda, backup material and the minutes on Indian River County website www.ircgov.com/Boards/PZC/2010.

Present were members: Chairman Greg Smith, District 4 Appointee; Donna Keys, District 1 Appointee; Sam Zimmerman, District 2 Appointee; Jens Tripson, District 3 Appointee; Dr. David Cox and George Hamner, Members-at­Large.

Absent was Carol Johnson, non-voting School Board Liaison (excused).

Also present was IRC staff: Melissa Anderson, Assistant County Attorney; Bob Keating, Community Development Director; Stan Boling, Planning Director; and Terri Collins-Lister, Recording Secretary.

Call to Order and Pledge of Allegiance

Chairman Smith called the meeting to order and led all in the Pledge of Allegiance.

Approval of Minutes

ON MOTION BY Mr. Hamner, SECONDED BY Mr. Tripson, the members voted unanimously (6-0) to approve the minutes of the meeting of October 28, 2010, as presented.

Items On Consent

The secretary administered the testimonial oath to those present who wished to speak at tonight's meeting on any quasi-judicial items.

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A. Windsor Sunset Cottages: Request for preliminary PD plan/plat approval for a 10 lot fee simple residential townhome development to be known as Windsor Sunset Cottages. Windsor Properties, Inc., Owner. Schulke, Bittle & Stoddards, LLC, Agent. Located along Windsor's western perimeter, east of Jungle Trail and just south of Windsor's north boundary. Zoning Classification: RS-3, Residential Single-Family (up to 3 units/acre). Land Use Designation: L-1, Low Density Residential (up to 3 units/acre). Density: .97 units per acre (Windsor project). (PD-11-01-01 / 2005040112-65979) [Quasi­Judicial]

B. Wild Wind Subdivision: Request for preliminary plat approval for a 2 lot single-family subdivision to be known as Wild Wind Subdivision. Victor A. Mascitelli & Madonna G. Smith, Owners. Carter Associates, Inc., Agent. Located on the north side of historic Quay Dock Road, east of US Highway 1. Zoning Classification: RS-3, Residential Single-Family (up to 3 units/acre). Land Uses Designation: L-1, Low Density Residential (up to 3 units/acre). Density: 0.72 units per acre. (2009070030-64713 / SD-10-02-01) [Quasi-Judicial]

Chairman Smith asked the members if anyone wanted to pull any of the above items for discussion and Ms. Keys asked to pull Item B for question.

Ms. Keys wondered if it was something new to require a fire hydrant to be installed within 500 feet of a lot. Mr. Stan Boling, IRC Planning Director, stated the fire hydrant was a special condition because it was only two lots and there was no land development permit required whereas normally it was part of the land development permit process.

Ms. Keys questioned whether the required improvements - street lighting could be eliminated since it was on Quay Dock Road. Mr. Boling stated the County required some form of street lighting within the Subdivision Code; however, the type was not specified and a yard light in the front satisfied the requirement.

ON MOTION BY Dr. Cox, SECONDED BY Mr. Hamner, the members voted unanimously (6-0) to accept the items on Consent as presented.

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ITEMS NOT ON CONSENT

A. LB Ranch: Request for administrative permit use approval for a non-commercial kennel to be known as LB Ranch. Lori Bloom, Owner and Agent. Located at 2409 Old Dixie Highway SE. Zoning Classification: RS-6, Residential Single-Family (up to 6 units/acre). Land Use Designation: L-2, Low Density Residential (up to 6 units/acre). (AA-11-02-11 / 98070170-66092) [Quasi-Judicial]

Mr. Boling reviewed the information contained in his memorandum dated November 18, 2010, a copy of which is on file in the Commission Office.

Ms. Keys stated she had spoken with the neighbor closest to the kennel and he had no complaints. She inquired about the code enforcement complaint. Mr. Boling stated the complaint was regarding the issue of not having the required permits, but no nuisances were part of the complaint.

ON MOTION BY Ms. Keys, SECONDED BY Mr. Hamner, the members voted unanimously (6-0) to approve staff's recommendation.

B. North Shore Club: Request for preliminary PD plan/plat approval for a 7 lot single-family development to be known as North Shore Club. North Shore Club, LLC, Owner. Schulke, Bittle & Stoddard LLC, Agent. Located on the east side of SR A-1-A, within the overall Florida Beach Resort (Disney) PD. Zoning Classification: RM-6, Residential Multi-Family (up to 6 units/acre). Land Use Designation: (L-2, Low Density Residential (up to 6 units/acre). Density 71 units/acre. (PD-11-01-022003010058-66029) [Quasi-Judicial]

Mr. Boling reviewed the information contained in his memorandum dated November 23, 2010, a copy of which is on file in the Commission Office.

Dr. Cox raised the question whether it was a condition that the portion of the cleared lots seaward of the 1987 Coastal Construction Control Line could only be developed with a swimming pool or deck and wondered what structures could be constructed seaward.

Mr. Boling referred to the aerial of the North Shore Club Planned Development (PD) Single Family Development and noted there was a building line and a line for structures constructed seaward. He stated that structures

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constructed seaward such as pools, decks, and patios were subject to approval by the Department of Environmental Protection. He affirmed that no structures could be constructed past the 1981 line because of protected dune vegetation, with the exception of dune walkovers.

ON MOTION BY Ms. Keys, SECONDED BY Mr. Tripson, the members voted unanimously (6-0) to approve staff's recommendation.

C. Lost Tree Preserve: Request for approval of an updated preliminary PD plan/plat for a development to be known a Lost Tree Preserve. Lost Tree Village Corporation, Owner. Stephen Melchiori, Agent. Located on the north side of 65th Street, just west of the FEC railroad and south of 69th Street. Zoning Classification: PD, Planned Development. Land Use Designations: C/1, Commercial/Industrial and L-1, Low Density Residential (up to 3 units/acre). Density: 2.12 units per acre. (PD-10-08-01/99040238-65338) [Quasi-Judicial]

Mr. Boling reviewed the information contained in his memorandum dated November 8, 2010, a copy of which is on file in the Commission Office.

Ms. Keys asked whether there was a time in which the applicant would need to start Phase I of the development. Mr. Boling referred to the Phasing Schedule on page 6 of his memorandum and noted the completion date for Phase I was the year 2016, but there was not a commencement date. He indicated the completion dates could be modified to extend those dates.

Ms. Keys inquired about the applicant's alternatives if the project was not completed after the 17 years. Mr. Boling explained the phasing of the project was not the build out of the homes, but putting in the infrastructure. He added if the applicant went beyond the second phase they could come back in the year 2027 and get a preliminary PD approval for Phase 3.

Mr. Hamner asked what would happen if the request for approval of an updated preliminary PD plan/plat for a development to be known a Lost Tree Preserve was denied. Mr. Boling replied that the applicant was required to build the plan and added the applicant already had the PD zoning of which was tied to the conceptual plan. He continued if the P&Z Commission denied the request, the applicant could appeal the decision to the Board of County Commissioners.

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Mr. Zimmerman felt it was a strange policy of the County to approve a plan at this time which would be locked into place until the year 2027, not knowing how someone may want something developed at a future time. Mr. Boling stated it was not unusual to approve plans for development over a long period of time and mentioned other projects which had been approved by the County long before being set into place. He indicated with a project the size of Lost Tree Preserve, the applicant would be looking at design changes maybe multiple times prior to the year 2027 in order to respond to market conditions.

ON MOTION BY Mr. Hamner, SECONDED BY Mr. Tripson, the members voted unanimously (6-0) to approve staff's recommendation with the conditions outlined in staff's report.

Public Hearing

A. Pointe West School Site (Tract M): Request to modify the approved planned development PD conceptual plan for the Pointe West School Site (Tract M). Pointe West of Vero Beach, Ltd., Owner. Onsite Management Group, Inc., Agent. Located on the north side of 16th Street, immediately west of the Westlake Estates Subdivision. Zoning Classification: PD, Planned Development. Land Use Designation: M-1, Medium Density Residential (up to 8 units/acre). (AA-11-02-15/200011008-66137) [Legislative]

Mr. Boling reviewed the information contained in his memorandum dated November 19, 2010, a copy of which is on file in the Commission Office.

Ms. Keys raised a concern for the residents at West Lake Estates in regard to the buffer being reduced by 150 feet. Mr. Boling noted it was a 200 foot building setback requirement which applied only to buildings and did not apply to driveways, parking areas, or drop off loops. He continued that parking areas and drop off loops would be located on the other side of the building and away from the subdivision.

Chairman Smith briefly discussed the verbiage in the PD Conceptual Plan for the Pointe West School Site that indicated the developer shall commit to accommodate drainage from 60% of the school site impervious area within the project's drainage system.

Chairman Smith opened the public hearing at 7:44 p.m.

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Mr. James W. Herman, 7546 15th Lane, Vero Beach, questioned whether there was any type of buffering for sound contained in the PD plan. He felt the proposed bus pickup lane to be located on the south side would generate traffic on 16th Street. Mr. Boling stated the school site plan was not that far along, but he would get Mr. Herman's contact information and invite him to review the plan as it progressed.

Chairman Smith closed the public hearing at 7:47 p.m.

ON MOTION BY Mr. Hamner, SECONDED BY Mr. Tripson, the members voted unanimously (6-0) to approve staff's recommendation with the conditions outlined in staff's report.

Commissioners Matters

Mr. Hamner presented Chairman Smith with a plaque for his service and leadership on P&Z and wished him well on his future endeavors.

Planning Matters

Mr. Boling stated that staff has enjoyed working with Chairman Smith on P&Z and wished him well.

Mr. Boling mentioned since the last P&Z meeting on October 28, 2010, the Palema Farm Special Exception Use for residential housing facility was approved by the BCC at their November 9, 2010 meeting.

Attorney's Matters

None.

Adjournment

Chairman Smith thanked staff and the P&Z Commission for recognizing him and stated he had enjoyed working with Mr. Keating and Mr. Boling and their staff as well as the P&Z Commission.

There being no further business, the meeting adjourned at 7:49 p.m.

PZC/Unapproved 6 December 9, 2010 C:\Documents and Settings\mbowdren\Local Settings\Temporary Internet Files\OLK27\PZ-12091 0.doc

Gregory W. Smith, Chairman Date

Terri Collins-Lister, Recording Secretary Date

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TO:

FROM:

DATE:

SUBJECT:

INDIAN RIVER COUNTY, FLORIDA MEMORANDUM

The Honorable Members of the Planning and Zoning Commission

Robert M. Keatmg, AICP Community Development Di ector

Roland M. DeBlois, AICP ~ Chief of Environmental Planning and Code Enforcement

February 11, 2011

APPEAL PUBLIC DISCUSSION

QUASI-JUDICIAL

David Damerau's Appeal of a Decision by the Community Development Director that a Noncouforming Salvage Yard Use at 4410 45th Street has Ceased for More than One Year and Cannot be Reestablished

It is requested that the data herein presented be given formal consideration by the Planning and Zoning Commission at its regular meeting of February 24, 2011.

BACKGROUND

45th

Street Commerce Investments, LLC (with David Damerau as Registered Agent) owns two adjacent parcels at 441 0 45

th Street (formerly addressed as 4506 45th Street) and 4420 45th Street (see location map, Attachment #1 to

this memorandum). The combined parcels total 9.23 acres. Historical aerials of the (combined) property indicate that the property had been used as a salvage yard (AAA Auto Salvage) in the past until at least December 2005.

Currently, the west 2.3 7 acre parcel is zoned IG, General Industrial, which allows junk and salvage yards as a "Special Exception" use. The east 6.86 acre parcel, however, is currently zoned IL, Light Industrial, in which junk and salvage yards are not allowed (see Attachment#4, County Code Section 911.11(4)). In that the junkyard use was legally established prior to current zoning regulations that would not allow a salvage yard to be newly established on the overall site, the past salvage yard use of the property was considered a "legal nonconformity."

Cessation of Nonconformities

As structured, County Code Section 904.08(1 ), relating to nonconformities, reads as follows:

"Section 904. 08. Cessation of nonconformities.

(1) Cessation of a nonconformity for one year. if, for any reason, a nonconforming use of land, a nonconforming structure or an establishment having a site-related nonconformity ceases operation for a continuous period of one year or more, all nonconformities shall be considered terminated and shall not thereafter be reestablished. This provision shall not be construed to apply to nonconforming single-family residential homes. "

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Last year, county code enforcement staff received a complaint that buildings on the subject property were being restored without permits and that junk vehicles were being brought onto the property, actions which appeared to constitute reestablishment of a salvage yard that, on appearance, had been closed for business for at least one year.

In investigating the complaint to determine if the nonconforming salvage yard use had ceased for a continuous period of one year or more (and therefore could not be reestablished), staff reviewed the following information:

• Historical aerials • Occupational tax license records • Property appraiser records • Documents recorded in the Public Records oflndian River County • Business receipts and an (unsigned) affidavit provided by Mr. Damerau

Historical aerials: A county aerial of the subject property, dated circa December 2005, shows vehicles stored throughout the 9.23 acres, typical of a salvage yard use and similar to the active salvage yard west of the subject property. County aerials, dated circa September 2007, April 2008 and December 2008, however, show the subject property to be devoid of stored vehicles, indicative of a property not in use as a salvage yard (see Attachment #7).

Occupational tax license records: An occupational tax license for AAA Auto Salvage, LLC atthe subject property has been renewed I paid annually since 2005 (see Attachment #8).

Property appraiser records: The property appraiser record cards for the two adjacent parcels indicate a property use code of"4000 - Vacant Industrial." The record cards indicate an appraisal date of 8/3 J /2009 (see Attachment #12).

Recorded documents: Relating to the subject property, a May 2009 Settlement Stipulation attached to an "Order Approving Settlement Stipulation and Final Order of Dismissal" (Frank Bosh and Ester C. Bosh, Plaintiffs, vs. 45

th Street Commerce Investments, LLC, Defendant) recorded in O.R. Book 2352, Page 2463, of the Public

Records of Indian River County, includes the following sentence (in Paragraph 7, Page 2 of the Stipulation): "Defendant will work with reasonable due diligence to reopen the Property as a salvage business in the front of the Property in accordance with the existing occupational license which Defendant agrees to maintain and renew and not allow to lapse." (See Attachment #11).

Business receipts and affidavit: Mr. Damerau of 45th Street Commerce Investments and AAA Auto Salvage provided staff with copies of sample receipts dated 1/24/07 to 7/10/09 and an (unsigned) affidavit indicating that "at no time did the Company cease to operate a junk yard and or to sell or purchase vehicle parts at the 4505 45 th

Street site" (see Attachments #9 and # 1 0). Those receipts and that statement appear to conflict with the May 2009 Settlement Stipulation court document which indicates that 45th Street Commerce Investments, LLC (Defendant) " ... will work with reasonable due diligence to reopen the Property as a salvage business ... "

In consideration of all of the above referenced information, county staff's position is the nonconforming salvage yard use ceased for a continuous period of one year or more between September 2007 (the date of the 2007 aerial) and August 2009 (the date of the property appraiser's appraisal) and therefore cannot be reestablished.

Appeal of Staff's Decision

The procedure for processing "appeals from decisions of the community development director or his designee" is established under County Code Section 902.07 (see Attachment #6), which indicates that the Planning and Zoning Commission (PZC) hears and decides such appeals.

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Consistent with that procedure, Mr. Damerau 's attorney, Bruce Barkett, on October 13, 20 I 0, submitted an appeal of staff's decision that the nonconforming salvage yard use ceased for a continuous period of one year or more and cannot be reestablished. After the October 2010 filing, staff and the applicant agreed to delay processing the appeal to allow time for submission and review of additional information and to accommodate the appellant's schedule. Additional review time is no longer needed and a February 24, 2011 PZC hearing date is agreeable to the appellant.

At this time, the PZC is to consider the appeal under guidelines provided in Section 902.07. In doing so, the PZC may reverse, affirm wholly or partly, or modify staff's action. Any decision of the PZC may be appealed to the Board of County Commissioners (BCC).

ANALYSIS

In this case, the subject appeal is based on the appellant's assertion that the information reviewed by staff and described herein is insufficient to prove that the salvage yard use at the subject property ceased for a continuous period of one year or more, and that the use did in fact not cease for a continuous period of one year or more. Although the appellant provided staff with an affidavit ( albeit unsigned) and samples of business receipts for a period from January 24, 2007 to July 11, 2009, staff, in coordination with the County Attorney's Office, had requested other information, such as income tax returns, to verify the business use. That information was not provided.

PZC Review Guidelines for Appeals

Section 902.07 provides guidelines for the PZC's review of an appeal of a staff decision (see Attachment #6). Under Section 902.07(5), the PZC is to review the staff decision and make findings in the following four areas. In accordance with 902.07(4), the PZC may make additional findings of fact.

I. Did the reviewing official fail to follow the appropriate review procedures?

Staff's Response: Staff and the reviewing official followed all proper review procedures in establishing its position that the nonconforming use had ceased for a continuous period of one year or more. In making its decision, staff reviewed historical aerials, county records, and requested information from the appellant. Staff then reviewed all available information and rendered a determination in a timely manner. In addition, the appellant has not raised an objection to any procedural item. Therefore, staff and the reviewing official did not fail to follow appropriate review procedures.

2. Did the reviewing official act in an arbitrary or capricious manner?

Staff's Response: Staff and the reviewing official followed logical review procedures and properly applied all appropriate county land development regulations. None of the decisions or acts by staff or the reviewing official were arbitrary or capricious, but instead were wholly consistent with the County's land development regulations. In fact, staff requested information from the appellant and reviewed all available information in making its decision. Through this appeal process, the appellant has not contended that staff's decisions or actions were arbitrary or capricious. Therefore, staff and the reviewing official did not act in an arbitrary or capricious manner.

3. Did the reviewing official fail to consider adequately the effects of the proposed use upon surrounding properties, traffic circulation or public health, safety and welfare?

Staff's Response: Staff and the reviewing official did adequately consider the effects of the proposed use (reestablishment ofa salvage yard) on the surrounding properties with respect to traffic circulation, public health, safety and welfare. In this case, the subject property abuts residential lots to the east and Gifford

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Community Park to the north. Appropriately, the current IL zoning of the east parcel does not allow the establishment of a new salvage yard, a use which is incompatible with those adjacent uses. County Code Section 904.02, which states the purpose and intent of County Code Chapter 904, Nonconformities, indicates that the purpose and intent of the chapter is " ... to promote the phasing out of nonconforming structures, uses, and characteristics of uses and combinations thereof, via specific conditions and limitations as set forth in this chapter." One of those specific conditions is that a nonconforming use that ceases operation for a continuous period of one year or more cannot be reestablished. Therefore, staff and the reviewing official did not fail to consider adequately the effects of the proposed development upon surrounding properties, traffic circulation or public health, safety and welfare.

4. Did the reviewing official fail to evaluate the issue with respect to the comprehensive plan and the land development regulations of Indian River Couuty?

Staffs Response: Staff and the reviewing official did evaluate the issue with respect to the comprehensive plan and the land development regulations. As previously referenced herein, LDR Section 911.11 ( 4) indicates that ''.junk and salvage yards" are not allowed in the IL zoning district, the district which applies to the east parcel of the overall subject property. LDR Section 904.08(1) provides that nonconforming uses shall not be reestablished if a nonconforming use ceases for a continuous period of one yearor more. Policy I 0.1 of the Future Land Use Element of the County Comprehensive Plan reads as follows:

Policy 10.1: Indian River County land development regulations shall allow legally established non-conforming uses to continue until ceased. When a non-conforming use has ceased, it can be replaced only with a conforming use. All new development, even development associated with non-conforming structures, must meet current regulations.

As such, staff and the reviewing official did not fail to evaluate the application with respect to the comprehensive plan and the land development regulations of Indian River County.

SUMMARY

The past salvage yard use of the subject property is a nonconforming use that, under county nonconformities regulations, must be terminated if the nonconforming use ceases operation for a continuous period of one year or more. Although the property owner contends that a salvage yard use has been maintained at the property (albeit at reduced levels), staff's position is that the preponderance of evidence ( described herein) indicates that the salvage yard use ceased for a continuous period of one year or more.

RECOMMENDATION

Based on the analysis performed, staff recommends that the Planning & Zoning Commission:

I. Make a finding that staff's determination did not fail any of the fonr areas outlined in LDR Section 902.07, and

2. Deny the appeal and wholly affirm staff's determination.

ATTACHMENTS

I. Location map with current zoning. 2. 10/7/10 Letter from county staff to David Damerau on cessation of the nonconformity. 3. I 0/13/10 appeal letter (and I 0/25/10 follow-up letter) from Bruce Barkett. 4. County Code Section 91 I.I 1(4) ~ Industrial Districts use table.

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5. County Code Chapter 904, Nonconformities. 6. County Code Section 902.07, Appeals from decisions of the community development director or his designee. 7. Historical aerials of the subject property. 8. Occupational tax licenses June 2005 to September 2010. 9. David Damerau affidavit. 10. AAA Auto Salvage Receipts 1/24/07 to 7/10/09. 11. Order Approving Settlement Stipulation and Final Order of Dismal. 12. Property appraiser record cards for the east and west parcels of the subject property.

BY MELISS RSON

AHIIITANT COUNTY ATTORNEY

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October 7, 2010

David Damerau 45th Street Commerce Inv LLC C/O DFD Capital Development 812 NW 1st Street Fort Lauderdale, FL 33311

INDIAN RIVER COUNTY Environmental Planning & Code Enforcement Section

1801 27th Street, Vero Beach FL 32960 772-226-1249 / 772-978-1806 fax

www.ircgov.com

Re: AAA Auto Recycling I AAA Auto Salvage at 4410 45th Street; Cessation of Nonconforming Use (Code Enforcement Case 2010050118)

Dear Mr. Damerau:

I am writing as a follow-up to your meeting yesterday with me and other county staff concerning the issue of continuation of a nonconforming use (i.e., junk yard/salvage yard) at 4410 45th Street (formerly addressed as 4506 45th Street).

As was discussed at yesterday's meeting, and as indicated in my 9/22/10 email to you, the subject property is currently zoned IL, Light Industrial. Salvage yards ( a.k.a. junk yards) are allowed only in the IG (General Industrial) zoning district, as a "special exception" use. As such, the salvage yard that existed at the subject property was a "nonconforming" use.

County Code Section 904.08 reads as follows:

"Section 904. 08. Cessation of nonconformities.

(1) Cessation of a nonconformity for one year. ff, for any reason, a nonconforming use of land, a nonconforming structure or an establishment having a site-related nonconformity ceases operation for a continuous period of one year or more, all nonconformities shall be considered terminated and shall not thereafter be reestablished. This provision shall not be construed to apply to nonconforming single-family residential homes. "

Aerial photos for 2007 and 2008 and staff field observations during that time indicate that the junk yard use ceased operation at the subject property for more than one year. Unless you can provide documentation that the salvage yard use did not "cease operation for a continuous period of more than one year," a salvage yard use cannot be re-established on the property unless the property is rezoned to IG and receives special exception approval. Staff's position is that, although a tax license for a junk yard at the property has been continuously renewed since 2005, the license does not, in-and-of-itself, verify that the business did not cease for more than one year.

ATTACHMENT 2 F:\Community Development\Uscrs\ROLAND\Code Enforcement\45th Street Commerce Damerau nonconform !tr 10-7-10.doc

Appeal of staff decision

You have the right to appeal staffs determination that the nonconforming salvage yard use at the subject property ceased operation for a continuous period of more than one year and, therefore, cannot be re-established under the current zoning. Indian River County Code Section 902.07 ( attached) sets forth procedures for appeals of such decisions by the community development director or his designee. The fee for such an appeal, as established by the Board of County Commissioners, is $400.00.

If you plan to appeal staffs determination, please let me know by October 12, 20 I 0, and staff will postpone the Code Enforcement Board evidentiaiy hearing that is cunently scheduled for October 25, 2010. If you choose not to appeal staffs determination under the procedures of Code Section 902.07, you will have the opportunity to present your position to the Code Enforcement Board at the hearing on October 25th

, at which the Code Board will weigh evidence and testimony in determining whether or not the cited violations exist.

Thank you. If you have any questions, please let me know.

Sincerely,

Roland M. DeBlois, AICP Chief, Environmental Planning & Code Enforcement Section

Attachment: !RC Code Section 907.07

Cc: Robert Keating Melissa Anderson Kelly Buck Stan Boling Joe Schulke

F:\Community Deve\opment\Users\ROLAND\Code Enforcement\45th Street Commerce Damerau nonconfonn !tr 10-7-10.doc

SRUCI;: 0. BARKETT

CALVIN B. 8ROWN

GEORGE G. COLLINS, JR.*

JANET CARNEY CROOM•t

MICHAEL J. GARA.'81.GLlA

fi.CNALD KESTH LAWtll**~

LISA N. THOMPSON**"•

AARON V. JOHNSON

C. DOUGLAS VrTUNAC:

Collins, Brown, CalJwell, BarkeU & Garavaglia

CHARTERED

JQ"TOMNEYS PJ' LAW

756 SEACHLAND BOUI.E\ARD, VERO BEA.CH, FLORIDA :)2963

POST OFFICE BOX 64-3686, VERO BEACH, FL 32964-.3686

TELEPHONE! 772-231-4.343 • ~JMILE: 772-2:34-5213

EMAIL: cec@VEROLAW.COM • WEBSITE: WWW.VEROLAW.COM

October 13, 2010

Roland M. DeBlois, AICP Chief, Environmental Planning & Code Enforcement Section Indian River County 180 I 27th Street Vero Beach, FL .32960

RE: AAA Auto Salvage 4410 45'• Street, Vero Beach, FL Code Enforcement Case No. 2010050118

Dear Roland:

WIWAM W. CAl.DWELL, OF COUNSEL

Sl'EVEN L. HENDERSON, OF COUNSEL*

tSOARll CERTIFIED C0NWMUCTl0N LAW

"IICAIUl C£RTIAED REAi- 1!:S'lm'I!:

&Al.SD ADMrTTED IN AR

ti.Al.$) AtlMITJEI) IN DC AND SC:

OPJ.SO ADMrTTED IN TH& COMMONWEALTH QP

Please be advised that we represent Mr. David Damerau and AAA Auto Salvage, LLC.

We are in receipt of your October 7, 2010 letter concerning the alleged cessation of a non­conforming use on the subject property.

As you and I discussed, this letter is to appeal Staffs determination that the non-conforming salvage yard use at the subject property ceased operation for a continuous period of more than one year and therefore terminated under the Land Development Regulations of Indian River County. It is the appellant's position that the Staffs determination was incorrect under the applicable sections of the County Code.

Pursuant to your correspondence, enclosed please find the fee for this appeal in the amount of $4()0.00.

As always, I look forward to working with you, and I hope that we can resolve this matter amicably. Otherwise, please keep me informed of all meetings concerning this matter, and copy me with all notes, memos, and correspondence concerning this matter.

BB:bb Encl. cc: Mr. David Damerau

Joseph W. Schulke, P.E. Melissa Anderson

c~ Bruce Barkett For the Firm

ATTACHMENT 3 REAL PROPERTY LAW~2Re~Ee~ • ZONING & LANO USE • WiUS, TRUST & ES11:uE PLANNING • CML & BUSINESS TRIAL PRACTICE: • CORPOR.IU'E & aUSINESS ORGANIZAilON

CONS'l'RUCT10N LAW • INSURANCE LAW • ADMINISTR.IU'IVE & GOVEl=INMENmL LAW_ • PERSONAL INJURY • WRONGFUL DEJIJ'H • CR[MlNAl. • PROBPXE 6 n:tusr AOMINlSTR.IUlON

BRUCE D. BARKETT

CALVIN B, BROWN

GEORGE G, COLLINS, JR,°'

JANET CARNEY CROOM"t

MICHA.EL J, GARAVAGLIA

RONA.LO KEITH LAWN"*l!.

LISA N. TI-IOMPSON*..,•

AARON V, JOHNSON

C, DOUGLAS VlTUNAC

CoHm§, lBiroWJm, CaidweH, lBairleu & Gairavagli.a

CHARTERED

JU'TORNEVS ,o:r LAW

756 BEACHlAND BOULEVARD, VERO BEACH, FLORIDA 32963.

POST OFRCE BOX 64-3686, VERO BEACH, FL 32964-3686

TELEPHONE: 772-231-4343 •. FACSIMILE: 772-234-5213

EMAIL: cac@vEROLAW.COM • WEBSITE: WWW.VEBOLAW.COM

October 25, 2010

Roland M. DeBlois, AICP Chief, Environmental Planning & Code Enforcement Section Indian River County 1801 27th Street Vero Beach, FL 32960

RE: AAA Auto Salvage 4410 45"' Street, Vero Beach, FL Code.Enforcement Case No. 2010050118

Dear Roland:

WILLIAM W. CALOWELL, OF COUNSEL

STEVEN L. HENDERSON I OF COUNSEL 4'

i"aOARD O:,:RllFIED CONSTRUCTION LAW

•aoARD CERTtFIED REAL = *'"MASTER OF LAWS =ON

_,_*•~ OF LAWS~ PROPERTY DEVELOPMENT

l\;td.50 ADMITTED JN DC AND SC

• ALSO ADMmED IN THE: CDMMONWE:At.TH OF

™'-

I am in receipt of your October 21 st email suggesting that I provide you additional information with the nature of the appeal in this case. Essentially, the appellant intends to argue that the non.conforming use did not cease operation for a continuous period of one year or more, as described in your October 7th letter.

We reserve the right to raise any additional legal arguments which we may develop between now and the time of the hearing, but the essential argument is the factual error described above.

I hope this answers your questions.

BB:bb cc: Mr. David Darnerau

Joseph W. Schulke, P.E.

Very truly you~s-,

. .

Bruce Barkett For the Firm

ATTACHMENT 3

REAL PROPERTY LAW & REAL ESU>JE CLOSINGS • ZONING & LANO USE • WILI.S, TRUST & ESWE PLANNING • CIVIL & BUSINESS TRIAL PRActlCE • CORPORAl"E & BUSINESS ORGANIZJJJ10N

CONSTRUCTION LAW • INSURANCE LAW o ADMINISTRJU1VE & GOVERNME::NTAL LAW • PERSONAL Jf'UURY • WRONGFUL OE'..IUH • CRIMINAL o l'ROBAl"E & TRUST ADM1NISTRAI10N

Roland Deblois

From:

Sent:

To:

Cc:

Subject:

Roland Deblois

Thursday, October 21, 2010 11 :02 AM

'Bruce Barkett'

Bob Keating; Stan Boling; Melissa Anderson

David Damerau I AAA Auto Salvage appeal ( issue: cessation of nonconforming use)

Attachments: 45th St Commerce Damerau nonconform ltr 10-7-10.pdf

Dear Bruce:

Page 1 of 1

This is to confirm that County staff has received your letter of October 13, 2010 (and the accompanying fee payment), in your capacity as representing Mr. David Damerau and AAA Auto Salvage, appealing staffs determination that the nonconforming junk yard / salvage yard use of the property at 441 O 45th

Street ceased for more than one year and, therefore, the use cannot be re-established under the current zoning.

As indicated in my 10/7/10 letter to Mr. Damerau (see attached), County Code Section 902.07 sets forth the appeal procedures. Subsection 902.07(3)(c) provides that:

" .. . appeals shall recite the reasons such an appeal is being taken. The appeal should identify: the error alleged; the ordinance allegedly improperly interpreted or the requirement decision or order allegedly improperly issued; the land development regulations supporting the applicant's position; and the goals, objectives and/or policies of the comprehensive plan supporting the applicant's position."

Please provide the referenced information in order to make your appeal submittal complete. Staff has tentatively scheduled the appeal for the November 18, 2010 meeting of the Planning and Zoning Commission. To meet that scheduling date, I request that the referenced information be provided to me by November 5.

If you would like to meet to discuss this matter prior to November 5, please let me know. Thanks - Roland

Roland M. DeBlois, AICP Chief, Environmental Planning & Code Enforcement Section Indian River County 1801 27th Street Vero Beach, FL 32960-3388 Phone: (772) 226-1258 Fax: (772) 978-1806 rdeblois@ircgov.com

2/11/2011

ZONING § 911.11

trial development. These districts are intended to permit the development of industrial property to provide an efficient use of land and public infra­structure, promote the economic well being of the county and ensure industrial development com­patible with existing and proposed development.

The industrial districts shall regulate the size, scope, and location of industrial uses and provide standards to ensure development compatible with the built and natural environment.

(2) Districts established. The foll tricts are established to implement of this chapter.

(a) IL-Light indus al district. The IL, light industrial · rict, is intended to provide opportu · ies for limited manufacturing and · ustrial uses and to promote the

ablishment of employment centers which are accessible to urban services and facilities, the area labor force, and

markets while minimizing the pate al for any adverse impacts upon ne y properties.

(b) JG-Genera ndustrial district. The IG, gener · dustrial district, is intended to pr · e areas where a broad range of · dustrial activities may locate and oper­ate without significant adverse impacts upon nearby properties. The IG district is further intended to promote the establish-ment of employment centers which are accessible to the transportation system and other necessary urban services.

(3) Relationship to land use maps. Industrial districts may be established in the following land use designation:

Commercial I Industrial District CI I PUB

IL IG

X X

X X

(4) Uses. Uses in the industrial districts are classified as permitted uses, administrative permit uses, and special exception uses. Site plan review shall be required for the construction, alteration and use of all structures and buildings.

Agricultural Production Crops Horticultural and landscape p p Plants and specialties Mulch products and services p p Kennels and animal boarding p p Services Farm labor and management services p p Landscape services p p Veterin services p p Commercial fisheries p

Construction p p

trade contractors p p

Linen supply Carpet and upholstery cleaning Dry cleaning !ants

Aui6Repaif, $efvic~"s.and·Parking·

Supp. No. 65 911/29 ATTACHMENT ~ ~ .: 4

§ 911.11 INDIAN RIVER COUNTY CODE

Carwashes

Non-durable goods Auction facilities, unenclosed Flea market Auto and home su I stores Gasoline service stations Boat dealers Recreational vehicle dealers Motorc cle dealers Automobile sales (new and/or used) Automotive fluid sales and services (other than gasoline)

Restaurants Take out restaurants Drive through Bars and lounges Bottle clubs Fuel dealers

Marine re air and services 1/¼'l{il~

Manufacturing Food and kindred products Tobacco roducts Fruit and vegetable juice extraction Fruit and vegetable packing houses Textile roducts Lumber and wood Furniture and fixtures Paper manufacturing Printing and related support activities

Supp. No. 65 911/30

p p s A p p s p p p p

p

p p p p

p p p p A p A p p p p p p p

p p p

Chemicals Petroleum products Rubber and lastics

Other leather oods

ortation services

Commercial warehousing & storage Moving and storage Trucking terminals Self stora e Outdoor storage Vehicle storage lot ( aved/unpaved) Postal services

Communications towers (wireless facilities)

ZONING

Communications towers (non-wireless facilities) Amateur radio (accessory use) Less than 80 feet 80 feet or taller (see 971.44(4) for special criteria)

Commercial Up to 70 feet:

Supp. No. 65 911/31

§ 911.11

p p p p

p p p p p p p p

p p p p p

p p p p p

p p p p

p p p

p p p

s s p p p p p p p p p p p p p p p p p p p p p

p p s s

§ 911.11 INDIAN RIVER COUNTY CODE

70 feet to 150 feet:

Over 150 feet:

Public and rivate utilities, hea Gas services

services

Res/dential-·uses'f'.'> Accessory housiug (watchmen)

P= Permitted use A= Administrative permit use 8= Special exception use

A A A A

A/S* A/S*

s s p p

s s p p p p p p p p p p

A

1The requirements of section 917.06(11) of the accessory uses and structures chapter, shall apply to towers less than seventy (70) feet. 2 Standards for unpaved vehicle storage lots are found in section 954.08(6). 3For wireless commercial facilities regulations, see section 971.44(5), Section 4 use table. *See 971.44(4) to determine whether the administrative permit or special exception use process applies.

(5) Accessory uses and structures. As provided in Chapter 917, Accessory Uses and Structures.

(6) Required improvements. All future subdivi­sions and site plans for development, within the industrial districts shall install the following im­provements, desiguated and constructed to the requirements and specifications in the Code of Laws and Ordinances of Indian River County and the State of Florida:

Bikeways Sidewalk

IL JG

X

(7) Buffer ya requirements. Where a nonres­idential us ithin an industrial district directly abuts mgle-family or multifamily residential zo · g district or use, a landscaped buffer yard

meeting the following specifications shal e re­quired along the side and/or rear pro y lines.

District

IL Type A . Opaque Type A 6 ft. Opaque IG 'T'v.,...'/1" 6 ft. Opaque Type A 6 ft. Opaque

e buffer yards shall be measured at right angles to the lot line. All screening requirements shall meet the standards established in Chapter 926, Landscaping and Buffering. No off-street parking or loading areas shall be permitted within the buffer yard.

When a loading dock is proposed to serve a use that normally requires frequent dock use (e.g. grocery store, department store, big box retail), and is to be located adjacent to a residentially desiguated site, and will not be screened from

Supp. No. 65 911/32

ft

NONCONFORMITIES § 904.05

CHAPTER 904. NONCONFORMITIES

Sec. 904.01. Short title. Sec. 904.02. Purpose and intent. Sec. 904.03. Definitions referenced. Sec. 904.04. Continuation of nonconformities. Sec. 904.05. Expansion, increase, or chan~e of

nonconformities. Sec. 904.06. Sec. 904.07. Sec. 904.08. Sec. 904.09.

Repair or alteration of nonconformities. Reconstruction of nonconformities. Cessation of nonconformities. Nonconforming parcels of record.

Section 904.01. Short title.

This chapter shall be known and may be cited as the Indian River County Nonconformities Or­dinance. (Ord. No. 90-16, § 1, 9-11-90)

Section 904.02. Purpose and intent.

It is the purpose and intent of this chapter to permit the....continuation of those parcels, struc· tures, uses, characteristics of uses or combina­tions thereof which were lawful when established, but which would be prohibited, regulated, or re­stricted under the terms of present regulations or future amendments. It is the further purpose and intent of this chapter to promote the phasing out of nonconforming structures, uses, and character­istics of uses and combinations thereof, via spe­cific conditions and limitations as set forth in this . chapter. (Ord. No, 90-16, § 1, 9"11-90)

Section 904.03. Definitions referenced.

The def"mitions of certain terms used in this chapter are set forth in Chapter 901, Definitions, of the County Land Development Code. (Ord. No. 90-16, § 1, 9-11-90)

Section 904.04. Continuation of nonconfor­mities.

(1) Nonconformities may be continued so long as they remain otherwise lawful, subject to the remaining provisions of this chapter.

Supp. No. 10 904/1

. (2) Existing nonconforming structures shall be deemed to be legal nonconformities if said struc­ture(s):

(a) Was properly permitted for construction or was constructed prior to permitting require­ments; and

(b) Was constru_cted prior to formboard survey requirements or did not require submission ofa formboard survey prior to construction; and

(c) Was issued a certificate of occupancy, or passed a final Qast) inspection if a certifi­cate of occupancy was not required or was constructed prior to any applicable final (last) inspection or certificate of occupancy requirement.

(Ord. No. 90-16, § l, 9-11-90; Ord. No. 92-11, § 2, 4-22-92)

Section 904.05. Expansion, increase, or change of nonconformities.

(1) Generally. No nonconformity shall be en­larged, increased, or changed to a different non­conformity, except upon a determination by the director of community development that the change results in lessening of the degree of the nonconformity.

(2) Additions to nonconforming structures. Ad­ditions to nonconforming structures containing conforming uses shall be permitted, if the addi­tions to the structure(s) comply fully with setback and other applicable site-related regulations,

(3) Additions to, and development or re­development of. establishments with site-related nonconformities. Additions to, and development or re-development of, structures on property with site-related nonconformities, whereby the struc­tural additions do not warrant the submittal of a major site plan, may be permitted provided that such additions are in conformance with all appli­cable laws and ordinances of the county, do not create nonconforming uses or structures, and do not increase the existing site-related nonconfor­mity. Any addition which warrants the submittal of a major site plan shall require all site-related nonconformities to be terminated and brought in

ATTACHMENT 5

§ 904.06 INDIAN RIVER COUNTY CODE

compliance with all applicable regulations of the county, with the following exceptions:

(al Site-related nonconformities pertaining to encroachments into required yard setback areas,and

(bl Site-related nonconformities created. -by public right-of-way acquisition.

(Ord. No. 90-16, § 1, 9-11-90; Ord. No. 91-23, § 3, 5-15·91)

Section 904,06. Repair or alteration of non­conformities.

Repairs, maintenance and improvements of non­conformities may be carried out, provided that

State of.Florida or the President of the United States, as a result of a hurricane, tornado, flood, or other similar act of God, then the provisions of section 904.07(1) shall be hereby modified to allow within the declared disaster area the replacement or reconstruction of structures on or in the loca­tion of the original foundation. However, this mod­ification to county regulations to allow the replace­men t or reconstruction of nonconforming structures has no effect upon the application and enforcement of state or federal laws and agency regulations regarding replacement or reconstruc­tion of nonconforming structures. (Ord. No. 90-16, § 1, 9-11-90; Ord. No. 93-8, § 20, 3-18-93)

such work does not increase the cubic content of Section 904,08. Cessation of nonconformi• the building or the floor or ground area devoted to ties. the nonconforming use and does not in any way increase or create a site-related nonconformity. • (1) Cessation of a nonconformity for one year. If, Moreover, such work shall not conflict with the for any reason, a nonconforming use of land, a reconstruction provisions of section 904.07. The nonconforming structure or an establishment requirements of this section shall not be construed having a site-related nonconformity ceases aper-to prevent compliance with applicable laws or re- ation for a continuous period of one year or more, quirements relative to the safety and sanitation all nonconformities shall be considered terminated of a building occupied by a nonconforming use. and shall not thereafter be reestablished. This pro-(Ord. No. 90-16, § 1, 9-11-90) vision shall not be construed to apply to noncon­

forming single-family residential homes.

Section 904,07. Reconstruction ofnonconfor• mities.

(1) If any nonconforming structure or use or an establishment containing a site-related noncon­formity is damaged by causes including but not limited to fire, flood, explosion, collapse, wind, ne­glect, .age, or is voluntarily razed or disassembled to such an extent that the cost of repair or recon­struction will exceed fifty (50) percent of the build­ing's value as shown on the tax assessment roll at the time of damage or proposed reconstruction, the nonconformity shall be deemed terminated, and shall not thereafter be reestablished. In the event that a nonconformity may be repaired by an investment of less than fifty (50) percent of the value of the nonconformity as shown on the tax assessment roll at the time of the damage or pro­posed reconstruction, such repair shall be per­mitted, and the nonconformity may continue.

(2) If Indian River County or a portion thereof is declared a disaster area by the Governor of the

(2) Replacement of nonconforming mobile homes. Where mobile home use constitutes a non­conforming use of land, no mobile home may be replaced with another mobile home, except when associated with a legal nonconforming mobile home park, whereby the mobile home is main­tained in conformance with the originally ap­proved mobile home park site plan (as may be amended). The setbacks established in section 911.09(g), including footnotes, are applicable to mobile homes within nonconforming mobile home parks. (Ord. No. 90-16, § 1, 9-11-90; Ord. No. 93-8, § 30, 3-18-93)

Section 904.09. Nonconforming parcels of records.

(11 When a parcel has an area smaller than the requirements of the zoning district in which it is

· located, but was a parcel of record when this reg­ulation was adopted, the permitted use of the

Supp. No. 10 904/2

,, .• •

• {

NONCONFORMITIES

zoning district will be allowed, providing all re­quirements, other than minimum parcel size, are satisfied. This provision shall not be construed to permit more than one dwelling unit on a parcel with less parcel area per unit than required for the district in which such parcel is located.

(2) Side yard requirements notwithstanding, all existing parcels of record shall be permitted to have side yards reduced in order to allow a min­imum buildable width of thirty (30) feet. The thirty-foot width shall be located so that the build­able area is centered in relation to the width of the Jot, and that side yards of equal width are maintained. (Ord. No. 90-16, § 1, 9-11-90; Ord. No. 94-1, § 6A, 1-5-94) .

Supp. No. 13 904/3

§ 904.09

,/"-",

\. l ADMINISTRATIVE MECHANISMS § 902.07

(14) The planning and zoning commission shal perform any other duties which may be law y assigned to it.

(15) The commission shall have the powers of the airport zoning specified in F.S. § 333.05, unde les consistent with said section and with e Code of Indian River County. (Ord. No. 90-16, § 1, 9- -90; Ord. No. 92-11, § 15, 4-22-92; Ord. No. 95 0, § 15B, 5-31-95)

Section 90 6. Reserved.

Editor' note-Section 1 of Ord. No. 2010-09, adopted May 4, 0, repealed§ 902.06 in its entirety. Former§ 902.06 pert · ed to role of historic resources advisory committee in pl ing and development, and derived from Ord. No. 90-16, dopted Sept. 11, 1990.

Section 902.07. Appeals from decisions of the community development di­rector or his designee.

(1) Purpose and intent. This section is estab­lished to provide a mechanism for the hearing and resolution of appeals of decisions or actions by the community development director or his designee and for further appeals from decisions and actions from the planning and zoning commission.

(2) Authorization.

(a) The planning and zoning commission of Indian River County shall be authorized to:

1. Hear and decide appeals when it is alleged that there is an error in any order, requirement, decision, or de­termination made by the community development director or his designee in the application and enforcement of the provisions of the land develop­ment regulations.

Hear and decide appeals when it is al­leged that there is an error in the inter­pretation or application of a provision(s) of these land development regulations in relation to a development application. De­cisions rendered by the planning and zon­ing commission may be appealed to the

Supp. No. 80 902/4.1

board of county commissioners which shall have the power to hear and decide such appeals.

(b) Upon appeal and in conformance with land development regulations, the plan­ning and zoning commission in exercising its powers may reverse or affirm wholly or partly or may modify the order, require­ment, decision, interpretation, applica­tion or determination of the community development director or his designee.

(c) Any action reversing the community de­velopment director's decision shall re­quire four (4) affirmative votes of the planning and zoning commission.

(3) Appeal procedures.

(a) The applicant, or any otherperson(s) whose substantial interests may be affected dur­ing the development review process, may initiate an appeal.

(b) Appeals must be filed within twenty-one (21) days from the date of notification letter rendering the decision by the respec­tive official. Appeals may be concurrent with requests for approval of a develop­ment application(s).

(c) An appeal must be filed within the speci­fied time limit with the planning division on a form prescribed by the county. All such appeals shall recite the reasons such an appeal is being taken. The appeal should identify: the error alleged; the or­dinance allegedly improperly interpreted or the requirement decision or order al-

\ l

ADMINISTRATIVE MECHANISMS § 902.07

legedly improperly issued; the land devel­opment regulations supporting the applicant's position; and the goals, objec­tives and/or policies of the comprehensive plan supporting the applicant's position. The appeal shall be accompanied by a fee to be determined by resolution of the board of county commissioners. The com­munity development director shall sched­ule the appeal at the earliest available meeting of the planning and zoning com­mission.

(d) Notice of the appeal, in writing, shall be mailed by the planning division to the owners of all land which abuts the prop­erty upon which an appeal is sought, at least seven (7) days prior to the hearing. The property appraiser's address for said owners shall be used in sending all such notices. The notice shall contain the name of the applicant for the appeal, a descrip­tion of the land sufficient to identify it, a description of the appeal requested, as well as the date, time and place of the hearing.

(e) All appeals shall be heard at a meeting of the planning and zoning commission. All interested parties shall have a right to appear before the planning and zoning commission and address specific concerns directly related to the appeal. Any person may appear by agent or attorney. All such hearings shall be conducted in compliance with the rules of procedure for the plan­ning and zoning commission. The time and place scheduled for hearing shall be given to the applicant in writing after an appeal application is submitted.

( 4) Action by the planning and zoning commis­sion, findings of fact. At the hearing scheduled for the purpose of considering the appeal, the plan­ning and zoning commission may, in conformity with the provisions of law and these land devel­opment regulations, uphold, development direc­tor or his designee from whom the appeal is taken. In reviewing an appeal of a decision by the community development director or his designee, the planning and zoning commission must make findings in the following areas:

(a) Did the reviewing official fail to follow the appropriate review procedures?

(b) Did the reviewing official or commission fail to properly apply the use or size and dimension regulations for the respective zoning district(s)?

(c) Did the reviewing official fail to consider adequately the effects of the proposed development upon surrounding proper­ties, traffic circulation or public health, safety and welfare?

(d) Did the reviewing official fail to evaluate the application with respect to the com­prehensive plan and land development regulations of Indian River County?

The decision of the planning and zoning com­mission shall be final unless further appealed. Not withstanding findings (a) through (d) above, the planning and zoning commission may make additional findings of fact.

(5) Further appeals from actions by the plan­ning and zoning commission. At any time within twenty-one (21) days following action by the plan­ning and zoning commission, the applicant, the county administration, or any department thereof, or any other person whose substantial interests may be affected by the proceeding may seek review of such decision by the board of county commissioners. The decision of the board of county commissioners shall be final. At the hearing sched­uled for the purpose of considering an appeal of the planning and zoning commission's action, the board of county commissions may, in conformity with the provisions of law and these land devel­opment regulations, uphold, amend, or reverse wholly or partly, the decision by the planning and zoning commission which is being appealed. Ap­peals of planning and zoning commission deci­sions to deny rezoning applications are regulated in section 902.12. All other types of appeals to the board of county commissioners shall be followed in accordance with the same provisions of appeal procedures to the planning and zoning commis­sion, section 902.07(3), and the board of county commissioners shall review the appeals with re­spect to the findings criteria of section 902.07(4).

Supp. No. 43 902/5

§ 902.07 INDIAN RIVER COUNTY CODE

Any action by the board of county commissioners reversing a planning and zoning commission de­cision shall require three (3) affirmative votes.

(6) Effect of filing an appeal. The filing of an appeal shall terminate all proceedings which fur­ther the action appealed until the appeal is re­solved, except when the halting of such action poses , a threat to life or property. The planning and zoning commission shall make this determi­nation. Notwithstanding this provision, proceed­ings involving review of a development applica­tion may proceed when an appeal of an administrative decision has been filed and will be considered concurrent with the development ap­plication request.

(7) Transmittal of th£ record. Staff shall forth­with compile and transmit to the planning and zoning commission all information documented which constitutes the record of action from which the appeal is taken. (Ord. No. 90-16, § 1, 9-11-90; Ord. No. 91-7, § 2, 2-27-91; Ord. No. 93-29, §§ SA, SB, 9-7-93; Ord. No. 2002-004, § 1, 2-12-02)

Section 902.08. Role of board of adjustm t.

(1) The board of adjustment shall rece· e and consider applications for variances from e terms of the county's land development re tions and shall grant such variances as will no e contrary to the public interest, pursuant to e procedures and requirements of the varian section of the land development regulations, ection 902.09.

(2) The board shall have d exercise the pow­ers specified in F.S. § 33 . 0, relating to airport zoning regulations, un r rules consistent with said section and wi the Code of Indian River County. (Ord. No. 90-16, § , 9-11-90; Ord. No. 92-11, § 16, 4-22-92)

Section 90 .09. Variances.

(1) Pu ose and intent. This section is estab­lished provide procedures for reviewing vari­ances y the board of adjustment. A variance runs wit the land and is a departure from the dimen­si al or numerical or other technical require-

ents of the land development regulations where

Supp.No. 43 902/6

such variance will not be contrary to the publi interest and where owing to conditions peculiar the property and not the result of the actions of the applicant or his predecessors in title, a lit al enforcement of the land development regula ons would result in an unnecessary and undue ard­ship.

(2) Approving authority. The board of adjust­ment is hereby authorized to grant v · ces in accordance withthe provisions of this s tion and can attach conditions to variances gr ted.

(3) Type of variance to be allowed. e board of adjustment shall have the authori to grant the following variances:

(a) A variance from the yar area require­ments of any zoning dis · ct where there are unusual and practi al difficulties in carrying out these pro · sions due to an irregular shape of the ot, topography, or other conditions, pro ded such variation will not seriously · pact any adjoining

(b)

property or the gen ral welfare.

an owner or au orized agent can show that a strict app cation of the terms of the land developm t regulations relating to the use of the land will impose unusual and unique · culties, but not loss of monetary v ue alone.

(c) De-minim s setback variance. A de­rmmmus tback variance can be granted automati ally at the staff level, under certain cumstances, without board ap­proval. · s applies in the following cir­cumst ces where the setback variance:

1. s for a structure properly permitted where no form-board survey was re­quired;

Is for 0.5 feet or less from the set­back required at the time the struc­ture was constructed or erected on the site; and

Is from property line(s) which have not been altered so as to cause or increase the nonconformity.

When variances are not allowed.

\

i :ii: C: 0

:;:::; 11:1 (.)

0 ...J

ATTACHMENT 7

11~ lnlbrrnolonor. 111irnap lf linr.TOrn ~11.:!llle r«Rei. H~~~r ,Iii ~~u.:iq If nolyuiraw,,:1.

Location Map SEPTEMBER 2007

'1ht lmlfm:ilonori N$h'l4' H l.!ffritom i:ell,2llf IOU'CU. Howe1/lef ,lt; :,:w-.:,q 11 nolgo,ami~~~.

!a-~ C: 0

~ (.)

0 ...I

. Ryaf!WOOd §hopping Center 2174 581!' Avenue · · ·. Vero Beach, Florida ' .

.Sebastian Sq_uare 11610 US#J:

.. (772) 770,5380 Sebastian, Florida (772) 388:;6034

., .,

. '

PLEASE PRINT

.CHARLES w·. SEMBLER Tax Collector

Mtiin Office- 925 J'41ru Lane- Luria's Plaza P.0 .. Box 1509, Vero Beach, Florida 32961

Phone: (772) 567,8000 Ext. 1358 or 1343 · Fax (772) ·770-5009

OCCUPATIONAL.LICENSE TAX ·· (Unincorporated Areas Only)

I . / ,:---- . DAT,E: _ __,l"'-.+--'z..'--· _7...--~· ,._,/.cc lO~J'---~~--~-

To the._Tax Collecior of Indian River County, Florida: · . I I ·

• Application is hereby made for the privilege of engaging in the .business, profession or •occupation hereinafter described for the period designated. An Occupational Tax for .this privilege has been levied by Indian River County pursuant to Chapter 205 florida Statute.

· BU~INESS~AMEifany:· /t,41{ A--U77) · .5,4-L,1/446: €' //, C:..... . . . .

OWNER'S NAME:~n~0~· ~"l~)~tJ..,._ -T2~W~fl1~1?~< !!2~4~l'-'--1r,._/U'-'-i-,~J11-=, ,,,,...,,.,.,..,,,,,=--~-----~~-, • (i/ corporation, list oj}tcers) · · · ..•

. BUsINEss MAILIN_a_. ADP __ REss,~z''--,. _sc___;J{;?_-_,_,·t/_,.r'----'s-"--+_._-_ _,Yc,_.~=i0'.:!,::::;=;;.,,-!'i~-==~=ll~1 -;;;;!F~t""'--'--. '--'-3=-· z...L..9"'0!:r-7-__:.·J-=--!J:...;,=I 6 . . --=,city) . . (State) · (Zip) _ ·

. BUSINE~S LOCATION A_DDRESS: __ ,:'1...4--""-''-'. '/77---· c.,.~e;c.-~· ~~~-----=-,.._-'----"--· =,,,--~-c---"7i''>"'--'---~ ~(Stre~t Address) · (luyj {State) (LiPJ

HOME AD/)RESS:_. ----~--~--=c=-==-'--,-----°'-'--~-~---,,..,,..,.-'--~-'----,=,,.-~-'---'--=~--(51reet Address) ·(City) ,(Stale) (Zip)

NATUREOFBUSINESS: S!J ft)./L ffl# D

TELEPHON~: Corp?~ation: -~ 9-~-/o 55 2. 1:eside~ce: ( _')_· --~--~

WHEN_WILUD!D YOUR-BUSINESS STARTIN THIS COUNT:Y?_-f,1.-f.-{..d-!..../--<-"--'--'-~-'--~-"""'"'---'--------'---~--

FEDERAL ID OR SOCIAL SECURITY.NUMBER: -req7:1est is mC! e)

_sT~TESALESTAXNUMBER: ~-r't/ 8:rp _ _ '• · By_si&ning below, I acknowledge that I liave read and understand th_at-it is my responsibility to be in compliance with thefoHowing:

This license ts m add.1t10n and n9t m heu of any other ltcense requrred by law or municipal or county ordmance, and 1s subJect to ·regulations of.zoning, health and·any other lawful authority. Licensee must notify the Tax Collector's Office of any chariges· in

. business name, ownershi ·, location address or mailin_g address. I do hereby certify that the above statements are true and correct. It 1s a mJSdemeanor of the st e t9 falsify or av01d any statement made herem (Sect10n 839.13 Flonda Statute). ... .

FOR OFFICE USE ONLY

. CLASSIFiCATION(S)·.,., ~.,, ... _,.,,I,).,' K~-'it,.c:e9-t,.· c_;J):,a' '-----~-- UCENSENUMBERASSIGNED: 0¢6~<,,::i_-,co \~~

•-fHl;l!,l,-ltl61Ai-"~l..J.TRANSFER __ ="-"u-:.:.:::;,=·.:..;_..,..:....:e:..::-s;-:..cs,..._.....::s=-.:.:::=====---"-'--"""-'-'-'t---"'c-._·:v-,_":-"-~::. ..... -'-;:..':..;,N=+-'6"'v.J""·.:..:..:,_:_1oc:;_;_;;:r.-

' . '-"-' D(' ~ -S -\-0.. 'S • .:S"'-. ,,,-,:'<....... ~:;i'.S~~ DA TE: l. ( ~ f CS-

' · AffACKMEBT· 8

Master

I Distributions

Sep/17/2010 02:33 PM AnACKMEtfT 8

LUL,AL OU"ll\lt:-:,;:, IAA * 2007-2008

INDIAN RIVER COUNTY, FLORIDA

MUST BE DISPLAYED IN A CONSPICUOUS PLACE 000262 JUNK YARD

TYPE OF BUSINESS

4506 45TH ST BUSINESS IR - INDIAN RIVER I\DDRESS

AAA AUTO SALVAGE LLC ~~~fNG DAMERAU, DAVID ,oDRESS 812 NW 1ST ST

FT LAUDERDALE FL 33311

CHARLES W SEMBLER, TAX COLLECTOR PO BOX 1509, VERO BEACH, FL 32961

IHJO(Jll\111000 0110001)4000 0000002b2UO I 3202 I OIJ I 9

ACCOUNT

EXPIRES

000262-0013202

SEPT 30, 2008

RENEWAL NEW TRANSFER ORIGINAL TAX

AMOUNT PENALTY

TOTAL

40 00

This receipt 1s 1n add1t1on to and not m heu o1 any other license required by law or municipal ordinance and 1s subject to regulations of zoning health and any other lawful authonty Owner must not1ty the Tax Collectors Office of any changes m business name ownership !ocat1on address or mailing address

CHARLES W SEMBLER TAX COLLECTOR INDIAN RIVER COUNTY FLORIDA

ATTACHMEffT 8

.._....,-I,.._ ---II-.--- II 'II' 2008 2009

INDIAN RIVER COUNTY, FLORIDA

MUST BE DISPLAYED IN A CONSPICUOUS PLACE

TYPE OF 000262 BUSINESS

JUNKYARD

BUSINESS ADDRESS 4506 45TH ST

VERO BEACH FL 32967

~111'.TNG AAA AUTO SALVAGE LLC ADDRESS DAMERAU DAVID

812 NW 1ST ST FT LAUDERDALE FL 33311

CAROLE JEAN JORDAN TAX COLLECTOR P O BOX 1509 VERO BEACH FL 32961

•••••• 4 ••• •••••• 5 ••• •••••••••••• 52•7 1•• 1 2

X

ACCOUNT >207

BUS ID 26213202 EXPIRES Sep 30 2009

RENEWAL NEW TRANSFER ORIGINAL TAX

AMOUNT PENALTY

40 00

10 DO TOTAL "'1:t-41;_1,::-,,-. -trot

fl ::...;QJ]JlS~:g ,.._,.. • .,l'T'1-:0 F2

~~~rr, ,J::o 1-...... ...... -'l"'lt'T'I a?~"Qsi;

C.'l #'t-::rt .......... t-.J

This receipt ts m addition to and n~ ~~~g;r,9',~ other license required by law or mu~pal ordnlai'Pee :::o and 1s subJect to regulations of zoning heaiili :m,d ~ any other lawful authority Owner must notify theli>( ::z: Collectors Office of any changes in busmess nml'le ownership location address or ma1lmg address

CHARLES W SEMBLER TAX COLLECTOR INDIAN RIVER COUNTY FLORIDA

ATTACHMEtfT 8

TYPE OF BUSINESS

2009-2010 LUl,;AL t:SU::ilNt:::i::i JAX

INDIAN RIVER COUNTY, FLORIDA

MUST BE DISPLAYED IN A CONSPICUOUS PLACE 000262 JUNK YARD

BUSINESS 4506 45TH ST ADDRESS VERO BEACH, FL 32967

NAME MAILING ADDRESS

AAA AUTO SALVAGE LLC DAMERAU, DAVID 812 NW 1ST ST FT LAUDERDALE FL 33311

CAROLE JEAN JORDAN TAX COLLECTOR PO BOX 1509 VERO BEACH FL 32961

0000004000 0000005000 0000000000005207 1001 2

X

5207

l>fi{jfjYfjT 26213202 Sep 30, 2010

EXPIRES

RENEWAL NEW TRANSFER­ORIGINAL TAX

AMOUNT PENALTY

40.00

10.00

TOTAL ·1~1---1i:::3~::9R ... -•~l:''H) ,t.1 1 .. ~ , ",:1 ::i::~ 1::i·•· ;:i~,- ::1> ....,,1 ...... 1,:1 -~--1,:::~•~ ... ::::-.r.:1 ~-::. .. ,--· -,; 1•1, ~~?~ t."'~ :;:.;;!

,~,::i 1:=:11-i .. , ,::;:~J•,,.:ii-•n i:-~-··" r···--,: • ....s

C.!1 ;;,~: ;:~~ii~~~~ r~ ~{;{ This receipt is in addition to an~r;rtl ~=:l other license required by law or n1itm1cipal nce:~::i and is subject to regu\ations of toning, h n<$~ any other lawful authority. Owner must no · ax-!!:: Collector's Office of any changes in business,i!lame, ownership, location address or mailing address.

CAROLE JEAN JORDAN TAX COLLECTOR INDIAN RIVER COUNTY, FLORIDA

ATTACHMENT 8

AFFIDAVIT OF David Damerau

STATE OF FLORIDA ) ) ss.

COUNTY OF Indian River )

I, David Darnerau, of AAA Auto Salvage LLC, & AAA Auto Recycling LLC, declare as

follows:

I. I am the person, and of the fnm, who is the operator of the company.

2. I am personally knowledgeable of the operation of the company, having been

principally involved with the operations and leases for the property.

3. At no time did the Company cease to operate a junk yard and or to sell or purchase

vehicle parts at the 4505 45 St Site.

4. That the hrs of operation was by appointment for the period of time from 7/09- 3-10

because of the slowdown in the economy and the desire to upgrade and improve the

facility.

5. That the receipts provided are just a sample of the business conducted on behalf of

AAA Auto.

6. That my on site operator is James Stagg, and that he has been working at the site

from 4-2007 through the current problems that have developed. He has been

involved in the purchase and resale of parts for AAA Auto.

7. I declare under penalty of perjury that the foregoing is true and correct under the

laws of the State of Florida. Executed on this 23 day of October, 2010 in the Town

ofVero, Florida.

David F .Damerau, President DFD Capital Development Corp. /Co's

ATTACHMENT 9

AAA AUTO SALVAGE RECEIPTS

Date Name Description Amount

1/24/07 Jimmy's Towing 2 hubs C.R. '99 Honda Accord $100.00 1/28/07 Billy Scott Auto illegible $100.00

Sales Used alternator '99 Explorer $50.00 Used P.S. pump $50.00

$200.00 1/28/07 Auto Repair bv Jim 4 illegible 15# rims aluminum $50.00 2/15/07 Billy's Auto Starter '99 Intreorid $25.00 2/18/07 Joe Roberts 1 Rim '80 Toyota $20.00 2/28/07 Cash counter Starter '88 Taurus $25.00 3/10/07 Cash sale 1 alternator '88 Bronco $40.00 7/1/07 Cash call-ASAP Break release ( emergency) $10.00 8/18/07 Carol Parlcs Comoressor '80 Eldorado $50.00 1/18/08 Mike's Repair I Transmission Chevy 1500 pickup truck $300.00 2/26/08 Cash Illegible $10.00 3/8/08 Invoice from HTA Illegible '76 Toyota Camry rear $275.00

Automotive Inc Towed to Vero yard Road Service

4/3/08 Invoice from Safari 2000 Chevy Dropped Vero yard-destination $570.00 Towing Orlando - Drop 350 CID engine & transmission

Pull from Malibu 4/17/08 Billy's Auto Starter '88 Chevy truck 1500 $20.00 4/20/08 Invoice from HTS 1999 Honda towed from Orlando to Vero Yard $350.00

Automotive Inc. Road Service

5/1/08 Auto repair 1 Hub '77 Toyota Camry $25.00 5/10/08 Invoice from M- 2001 F-350 Towed from Manheim - Ft. $975.00

Trucking Inc Lauderdale Yard to Vero Yard 5/20/08 Invoice from M- 2000 Chevy 2500 Towed from Manheim Yard to $390.00

Trucking Inc Vero Yard 6/1/08 Invoice from DED June2008 Rent $1,000.00

Capital Security Deposits $1,000.00 Develooment $2,000.00

6/5/08 Safari Towing 1 i/ler,ible 4 transmission, l-F-350 rear end $460.00 7/1/08 Invoice from Safari 2002 Food Taurus towed from Manheim to Vero $625.00

Towing Yard-Front cap & grille, windshield and left head lamp

7/18/08 A&BAuto Set of wheels - Saab 9000 $150.00 8/18/08 Billy's Auto I Stirring column $75.00 8/24/08 Cash sale Il/er;ible Ford F-150 $40.00 6/28/09 Cash Batterv $10.00 7/10/09 Cash sale I used battery $25.00

[ATTACHMENT 10

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l PLEASE RETURN THIS PQRTIONWITH YOUR PAYMENT

,-.. ·---;

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DATE DESCRIPTION

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PLEASE RETURN THIS P6Ri"ION.W!TH YOUR PAYMENT

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PLEASE RE"NRN tH/S PORTION' WITH YOUR PAYMENT

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STATEMENT

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PL.EASE AETIJRN THIS PORT1CiN'WITI-1 YOUR PAYMENT

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DATE OESORfPi'lON "ClfAR~E;S ~~EQl;l'S: : BAl:..till!a°E

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STAfEMENT

PLEASE RETURN tH1S PORTioN·w1rii.vouR PA'(MENT

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PLEAse·fu::ruAN THIS PORTION WtTH YOUR PAYMENT

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AMS AMOUNT PAID

DATE DE$CfuPr10N ·cHARGES CRE~lts _, ·sA.tANQE _-

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ADDRESS

CITY. STATE ZIP

TERMS

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2543

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HTA AUTOMOTIVE: INC. 1210 E. Commercial S!vd.

OAKLAND PARK, FL 33334 954,772,1500

ROAD SERVICE

~"'"'"" ____ _ ":.tJ~ t\ jfl;'P.i'fiC\il : ,-:-, ... -, I

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Mlleiige S_~ ~~-$ _!d~~. i Ml~- Mileage !

_T01a1 M~age ., lmue

Spt,clat Equipment/ Servk:os Admln Fee.a !

R~ry: 0-upi}iltlni! 0 w!llChlrt,g D go -jaci,;s R&c0YO'Y '.J cklan-up O snatch·~s [.} skat% ' '

Ser.'lc:a,w. •~ 0-11111 c_11a11ge Olool Oiumpstarl ServlCe !

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ADDRESS

·CITY STATE. ZIP

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PLEASE RETURN THJS-PORTI0N WITH. YOUR PAYMENT

DAIE·· DIS$CRIPTIOR 'Cf[AA(;IES CREDITS . ."~A.LANCE

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HTA AUTOMOTIVE INC. 1210 E. Comrriercial Blvd.

OAKLAND PARK, FL 33334 954,772-lSOO

ROAD SERVICE

OA.TE 0A1vl!.R, l TFIUCK , TOTAL 'J..JiJ ;,-,

01\l!lll~ ... ~.­THANJ,I( VOUJ

POOCUC1S1U

It-AA <('fl D 1../S-:t;t_ STATEMENT

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STATE ZIP

·····--·-···-· ·····-····-··-·--· _y\QUNlfYAJi) .•.• _., ____ _

PLEAS.E RETURN THIS PORTION WITH YO~R PAYMENT

DATE D~S(}A.IPT(QN 'C;1;t;4.R¢E~. CRcOITS' BAli/1.NeE' ·

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GAU. TIME

TYPE OF CALL

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;·. LP.UDf.:Hl)ll,LE, FL 33116 '.954) 5ZS-·1(H3

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I INSURANCE ~-

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1 l~NCEf'liONE

,SER\ZfCE"T!ME .i==~=~--------1 OORA PERSON

MJ_l.EAGE FINISH

MILEAGE START

m~·lf:'i;. !/f·c,·./ ;:,,_-r;?/;-.: -~·?(1,4 /:.;

-MU .. EAGE TOTAL

d Sl1NG I HOIST TOW

• -W,H~EL LIFT

0 FLAT TIRE

:J OUT OF GAS

:-J WRECK !J.· f~T S_Etj /-RAMP

o' ~fAAT

0-cbGl(OUT

Ci RECOVERY

•-------', '•• .

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,...r,,{/,r. ~- pPEMi:OR:S SIGNATURE "'· x,-r-:-·,.:.-·,- , AVTHOOIZEO SIGNAnJR'E

SPECIAL EQUIPMENT

• SINGLE-LIN6 WINCHING

p DIJAt:. LINE WJNCHING

0 SNATCH- BL0CKS

:• .fj•cx,,:cH 8L.OGKS_

n·:odu.v q· ..

.. TOTAL

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., 2004019 RECORDED IN THE RECORDS OF JEFFREY K BARTON, CLERK CIRCUIT COURT INDIAN RIVER CO FL, BK: 2352 PG: 2463, 07/09/2009 04:26 PM

FRANK BOSH and ESTER C. BOSH

Plaintiffs,

VS.

45TH STREET COMMERCE INVESTMENTS, LLC, a Florida limited liability company

Defendant

IN THE CIRCUIT COURT OF THE 19TH JUDICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY, FLORIDA

CASE NO. 3 l-2009CA-0J,0683 ·< ~

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N

ORDER APPROVING SETTLEMENT STIPULATION AND FINAL ORDER OF DISMISSAL

l .. )

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THIS CAUSE, having come before the Court on the filing of the Settlement Stipulation by

the parties, and the Court having reviewed the Settlement Stipulation and being otherwise advised

in the premises, it is hereupon,

ORDERED AND ADJUDGED that the Settlement Stipulation filed with the Court is hereby

approved and accepted, and it is furthermore,

ORDERED AND ADJUDGED that this cause is hereby dismissed. The Court reserving

jurisdiction to enforce the terms of the Settlement Stipulation upon a proper motion by either party.

cc: Richard G. Coker, Jr., Esq. David F. Damerau, Registered Agent

2004018 RECORDED IN THE RECORDS OF JEFFREY K BARTON, CLERK CIRCUIT COURT INDIAN RIVER CO FL, BK: 2352 PG: 2454, 07/09/2009 04:25 PM

IN THE CIRCUIT COURT OF THE 19TH JUDICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY. FLORIDA

FRANK BOSH and ESTER C. BOSH ,:;~ r·•

CASE NO. 31-2009CA-010683e', , ----

"';">-.

Plainti ITs, N

vs.

45r 11 STREET COMMERCE INVESTMENTS. LLC. a Florida limited liability company

-< N <.I'

Defendant

SETTLEMENT STIPULATION

Plaintiffs. FRANK BOSH and ESTER C. BOSH. and Defendant 45 111 STREET

COMMERCE INVESTMENTS. LLC. a Florida limited liability company. stipulate and agree as

follows:

I. On .lune 8'''. 2005 Defendant, executed and delivered a Mortgage Note ("·Mortgage

Note'') and a Mortgage, securing payment ofthe Mortgage Note lo Plaintiff in the original principal

amount of $500.000.00. ( .. Mortgage") encumbering the property described in Exhibit I attached

hereto ( .. Property"). The Mortgage was recorded in Otlicial Records Book 1892. Page 1090 of the

Public Records of Indian River County. Florida.

2. On June 8, 2005. Defendant executed and delivered to Plaintiffs a promissory note

in the principal amount of one hundred and fifty thousand dollars ($150.000.00). a copy of which

is attached hereto as Exhibit 2 ("Promissory Note").

3. The Mortgage Note and Promissory '.Jore are due and payable and Plaintiffs have Ii led

a two count complaint for the foreclosure of the Mortgage and damages in connection with the

Mortgage Note and Promi~SOI)' Note.

4. Defendant has made payments towards the principal of the Mortgage Note and

i'romisso,y Note. However. Plaintiff has failed to make interest payments when due. Based upon

,-:_,.T! - :;-;-:-;

-)~.:

',,

BK: 2352 PG: 2455

..

payments received. Plaintitls and Defendant agree that as of May I. 2009. IJctcndant owes Plainli fts

for outstanding principal and accrued but unpaid interest on the Mortgage Note and Promissory Note

the amount of$63 I .958.66 ("Adjusted Principal Balance"). The Adjusted Principal Balance shall

accrue interest at the rate ol' 6.5% per annum and shall be paid as follows:

Interest only payments in the amount of$3,423. I 1 ("Monthly Interest Payments") shall be

due and payable in arrears with the first payment due on June I. 2009 and subsequent

payments due on the first day of each and every month thereal\er with the entire orincioal

amount plus any accrued but unpaid interest due and payable on June I. 2011 (·'Adjusted

Maturity Date"), Any payments made in excess of the interest payments as set fhrth herein

shall be applied to reduce the principal.

Delendant is selling property located at 1717 Middle River Drive in Fo1t Lauderdale with the closing

scheduled within the next lew weeks. Upon the closing of this property Defendant shall pay

Plaintiffs the amount 01'$3,423.11 for Monthly Interest Payment which was due on May I. 2009 but

was not paid.

5. In addition. Defendant owes Plaintiff the amountof$2.7 I 5.00 for liling fees, process

of service fees. cost and attorneys lees. Defendant shall pay this amount to Plaintiff., attorney on

or before May 15. 2009.

6. Defendant also acknowledges that Defendant has not paid ad valorem taxes for the

years 2006, 2007 and 2008. Plaintitls. in order to preserve the Property, purchased the lax

certificates for2006 (#20071 I 75)and 2007(20071 I 76)(''Tax Certificates"). Defendant shall pay to

the Countv Revenue Collector to total amounts due on the Tax Certi licates on or before Mav 31.

2009. Further. Det'endant shal.l pay the 2008 taxes in full on or before Decemher 31. 2009. Prior

lo the full paymem of all amounts due under this Settlement Stipulation, Defendant shall pay ad

valorcm taxes prior to April I of the year in which the taxes are due.

7. In order to preserve the value of the Property, Del'endanl agrees to ready the Properly

for use as a green recycling facility for tires. concrete and wood. Further, Det'endant will complete

a new layout for the Property including a tree butler with saleable palms in the rear of the Property .

. ~ D1..•l'encfon1 will work v.-ith reasonahle due diligence to reopen the Propcrtv as a salv:we husincss in <E-­the front of the Prnpelty in accordance with the existing occLJpational license which Defendant

BK: 2352 PG: 2456

·,

a:.::n .. ·c:-i- to mainwin um.I renew anJ not c1llow to lapse. Alleg~J violatinn oflhis 1>ro\·ision sh~1II nOt he the hasis !Or a default provided thal payments hereunder are current.

8. In the Defendant violates any provision of this Settlement Stipulation. alier titteen

r 151 davs wrincn notice to Delendunt. Plaintiffmav serve on Defendant hy rc~ular mail and tile with

the Court a verified motion for entry of a Final Judiiement of Foreclosu.-e and for Damages in an

amount set forth in the motion. lfno ohieetions to the e.ntry ofa final judgment are served within

len (10) davs rc,ductinr Salurday. Sunday and fecteral holidays). th<' Court shall enter a Final

Jud~mcnt n~ rcouc-stcd lw Plaintiffs. In the eventTicfendant files a timt!ly objection to the cntrv or the Final Judµment. a hearin!( will be held before the Court for the sole purpose of determining

whether Defendant violated this Settlement Stipulation and the amount of damages due Plaintills.

9. In any action to enforce this Settlement Stipulation, the prevailing party shall be

entitled to reimbursement of its attorneys lees for all pre-trial, trial and appellate proceedings.

I 0. The par1ies agree to entry of an order approving this Settlement Stipulation and

dismissing this action with the Court reserving jurisdiction to enforce the terms or the Setuemcm

Stipulation.

IN WITNESS WIIF.RF.OF. the parties. who each represent thatthey have authority to execute

1his Seulcmcnt Stipulation. have signed this Scnlcment Stipulalion on the dale set forth hclow.

BK: 2352 PG: 2457

..

45'" STREET COMMERCE fNVESTMENTS. LLC, a florida

limited liability company

Ester C. Bosh

Date: OD --- t f --- 0_,_9'_ COKER & 1-'EINER Attorneys \hr Plainti 11' 1404 South Andrews /I venue Ft. Lauderdale. FL 33316 Telephone: 954-761-3636 FaL-similc: 954-761- I

BK: 2352 PG: 2458

1659898 RECORDE;:J IN THE RECORDS -::>F JEFFREY K BAR.TON, CLERK CIRCUIT COURT IND r_J,}J'

02 :24 pM DOC STAMPS MTG RIVER CO FL, BK: 1392 PG: 1090, 06/21/2005 Sl 750. 00 INT TAX $1000. 00

!_2.U.., .3S:O Jri'""'f· 11s-o,OO ~- 1000-DO

Rerum to \fortgagees

MORTGAGE

THIS IS A BALLOON MORTGAGE AND THE FINAL PRINCIPAL PA Y:.,fENT OR THE PRJNCIPAL BALANCE DUE UPON l\,IATUR1TY JS $500,000.00, TOGETHER WITH ACCRUED INTEREST, IF ANY, AND ALL ADVANCEMENTS l\,l-\DE BY THE MO"cTGAGEE UNDER THE TER>\1S OF THIS MORTGAGE, SHALL BE DUE A:'.'D PAY /\BLE ON J,:::, Y l, 2008

THIS MORTGAGE, executed on _Lday of June 2005, by

45TH STREET COMMERCE INVESTMENTS, LLC, a Florida Limited Liability Company

whose address is: 812 NW ht Street, Fort Lauderdale, FL 33311, hereinafter called the a Mortgagor," to

FRA.'!K BOSH and ESTER C. BOSH, whose address is: PO Box 60002, Vero Beach, FL 32969, hereinafter called the "Mortgagees": -·

(Wherever used herein the terms "Mortgagor" and ''Mortgage,os" include all the parties to this instrument and the heirs, legal representatives and assigns oi in:.':.iividuals, and the successors and assigns of corporations; and the tenn "Note'1 includes all ~h;.;-.notes herein described if more than one.)

W'itnessetb, that for good and valuable consideration, ir.•~lurifog, but not limited to, the purchase of the real property described herein, and also in consideration of:n.e aggregate sum named in the promissory note of even date herewith, hereinafter described. the Mortgage: hereby grants, bargains, sells. aliens, remises, conveys and confirms unto the Mortgagees all that~::tttain land of which the :Mortgagor is now seized and in possession of and situate in Indian River Coun:.y, !:'1orida, viz:

SEE A TT ACHED EXHIBr:: "A" FOR FL:LL LEGAL DESCRJPTION

COMMONLY KNOWN AS: 4506 45th Street, Vero Beach, FL 32967

To have and to hold, the same, together ·rrith the tenements, herediments and appurtenances thereto belonging and the rents, issue and profits thereof, unto the Mortgagee, in fee simple.

And the Mortgagor covenants with the Mortgagees that the Mortgagor is indefeasibly seized of said land in fee simple; that the Mortgagor has good right and lawful authority to convey said land as aforesaid; that the Mortgagor will make such further assurances to perfect the fee simple title to said land in the Mortgagees as may reasonably be required; that the Mortgagor hereby fully warrants the title to said land, and will defend the same against the lawful claim5 of all persons whomsoever; and that said land is free and clear of all encumbrance::·; except taxes of the current year, and any prior rnortgages and/or liens as stated elsewhere herein.

Provided always, t)iat if said Mortgagor shall pay unto said Mortgagees all sums secured by the certain promissory note at~!!--=~1ed as Exhibit 11B" hereto, and .;haJ! perform, comply with and abide by each and every agreemec.t, stipulation, condition and covenant thereof, and of this mortgage, then this mortgage and the estate h.eri:·Oy ~reated shall cease, detennine and be null and void.

And the ~-for,.gagor hereby further covenants and .agrees ro pay, promptly wh.en due. the principal and interest a.~d Qther sums of money provided for in >aid note and this mortgage.

If 1u:~ sr.:-..n of money herein referred to be not promptly paid within ../.5 days after same becomes due or if eacf1 ..::.---.J every agreement, stipulation, condition, and co1,,·enant of said note and this mortgage, or either, i.>

Page I of2 EXHIBIT l

BK: 2352 PG: 2459

BK: 1892 PG: 1091

not fully performed. complied with and abided by, then the entire sum mentioned in said note and t!;fr .. mortgage, or the entire balance unpaid therein, shall forthwith or thereafter, at the option of the Mnrrgagee, proceed to foreclose upon the mortgagees' security interest, after notice. Mortgagor shall have ,:he dght of redemption at any time up to and including the issuance of a Certificate of Title, or as provid.~-c:fU)' statute, whichever is longer.

In Witneu Whereof, the said granter has signed and sealed these presents the day and,year first above written.

RCE INVESTMENTS, LLC, a Florida y

DFD CAPITAL DEVELOPME OF INDIAN RIVER COUNTY, LLC

Managing Member, 45m STREET COMMERCE INVESTMENTS, LLC through David F. Damerau, Managing Member

Signed, sealed and delivered in our presence:

....--c- ,,-7, /:i ~i , /¼ee Wimess>Signature w~~-iS Signature

Print Name: ' __ '12u6,;,,,r {L./. 1/e?A/r,.,, r:l/J_ ~rint Name: 7

State ofFLORIDA

County of 811.t?t-v ,zf"1(J.

THE FOREGOING INSTRUMENT WA/i AC:KNOWLEDGED before me on June _, 2005, by 45m STREET 0:1Mlmt:1!CE INVESTME1""f3; LLC, Florida Limited Liability Company by and through DFD ITAL DE LOPMENT OtlNDIAN RIVER COUNTY, LLC, Managing Member, through D F. DAME U, Managing M.~mber and not individually, who is personally known to me or has

duced a valid iver's license as iaentitication. '

SEAL

Page 2 of2

BK: 2352 PG: 2460

BK: 1892 PG: 1092

EXHIB[T "A"

LEGAL DESCRIPTION

Beginning at a point on the North boundary line of Tract l 6, Section 2 l, Towns~ip 32 South, Range 39 East, according to plat of INDIAN RIVER FAR.MS COMPANY, wr.fo~. said plat was filed March 23, 1915, and recorded in Plat Book 2, Page 25, Public Records of $t. Lucie County, Florida, which beginning point is 80 feet West of the Northeast comer of the·West 20.96 acres of said Tract 16, and from said beginning Point thence run South parallel to th~ East boundary line of said West 20.96 acres to the South boundary line of said Tract 16, thence run East on the South boundary line of said Tract 16,210 feet, thence run North parallel to East boundary line of said West 20.96 acres to a Point which is 660 feet South of the North boundary line of said Tract 16, thence run East parallel to North boundary line of said Tract 16, a distance of 198. 78 feet, thence run North parallel to East boundary line of said West 20.96 acre.s.660 feet to the North boundary line of said Tract I 6, thence run West on the North boundary Ene of said Tract I 6, 408. 78 feet to the point of beginning; subject to rights of way for public roe.ds and drainage canals as laid out and established over and across said lands. Said land now lyin,t and being in [ndian River County, Florida.

Page 3 of2

BK: 2352 PG: 2461

• BK: 1892 PG: 1093

MORTGAGE NOTE $ 500,000.00 June f, 200:l

FOR VALUE RECEIVED, the undersigned 45™ STREET COMMERCE oo'E:;f. MENTS, LLC, promise to pay to the order of FRANK BOSH and ESTER C. BOSE the principal sum of live hundred thousand and no/100 Dollars ($500,000.00) with interest thl"con at the rate of six and one·half(6.SO%) per ccntum per annum from date until maturity, said interest being payable as set forth below, being payable in lawful money of the United States of Amerka ,c PO Box 690002, Vero Beach, FL 32969, or at such other address as the holder from tim: ·,o time may specify by written notice to the maker, said principal and interest to be paid on the dat.~- and in the manner following:

Payments due hereunder, unless otherwise specified, shall be interest only, adjusted as the principal balance may change. Initially, interest is payable in the amount of $2, 708.33/month, commencing on September!, 2005 and continuing on the 1• day of each month thereafter until the principal sum of $500,000.00 and the interest accrued thereon have been paid. Any payments in excess of the interest due hereunder shall be applied first to the :.,,.,rest then accrued, with the balance thereof to reduce of the principal hereof. The deferre,J:interest for June, July and August 2005, in the amount of$8,124.99 shall be payable over a or.,, (I) years/twelve (12) month period commencing January I, 2006 in the amount of$677.08/m-:,_nr!,, such sum to be added to the regular monthly interest payment referred to above. ·

THIS IS A BALLOON NOTE. THE FINAL PR1NC!P/,l PAYMENT OR THE PRINCIPAL BALANCE DUE UPON M'\TURJTY IS $500,0Q.i.0,,, TOGETHER WITH ACCRUED INTEREST, IF ANY, AND ALL ADVANCEMENTS MADE BY THE MORTGAGEE lJ~IDER THE TE1U.1S OF THIS MORTGAGE SIM.LL-TIE DUE AND PAYABLE ON JULY I, 2008.

This note is to be construed and enforced according to the laws of the State of Florida, and is secured by mortgage on real estate of eve:~1 date herewith.

If there is a default in the pay,,,er,; of any of said sums or interest or in the performance of any agreements contained herein or ;,j. the said mortgage, and if such default is not made good within 45 days, then, at the option of the !,alder of the same, the mortgagee may proceed against the real property secured hereby. A late v:e of five (5%) per cent of any payment due, or $135.00, whichever is less, shall become due in addition to the regular payment in the event any payment is more than fifteen (15) days late.

Each maker and endorser agrees to pay all costs, including a reasonable attorney's fee, if counsel shall fiJe an action to foreclose or to protect the security thereof.

Document;;;y 1ax has been paid and proper stamps have been affixed to the Mortgage.

45™ STREET '~C'cdMERCE INVESTMENTS, LLC a Florida y

By: OF IAN RIVER COUNTY, LLC Ma.,aging Member, 45 T COM!v!ERCE INVESTMENTS, LLC ~hrough David F. Damerau, Managing Member

Maker's Address: 812 NW t" Street, Fort Lauderdale, FL 33311

BK: 2352 PG: 2462

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S 150,000.00 PRO}lISSORY '.'iOTE

June 'S, 2005

FOR V . .U.CE RECEIVED. che undersigned ,.5rH STREET CO_l,l_l,[ERCE INVEST­ME~TS, LLC. Payor/Maker, promise co pay co-the order ofFRA'iK BOSH and ESTER C. BOSH, Payeesillolders the principal sum of one hundred and fifty thousand and no/100 Dollars (Sl50,000.00) with interest thereon at the me of six and one-half (6.50%) per centum per annum from date until maturity. said interest being payable as sec forth below. being payable in lawful money of the lnited States of America at PO Box 690002, Vero Beach. FL 32969, or at such other address as the holder from time to rime may speclfy b:,. 1,;,,ritten noc'.ce co the maker, said principal and interest to be paid on the dare and in the manner following:

Payments due hereunder, unless otherwise ,pecified, shall be interest only, adjusted as the principal balance mar change. Initially, interest is payable in the amount of$812.50 /month, commencing on September I, 2005 and continuing on the I" day of each month thereafter until the principal sum ofS150,000.00 and the interest accrued thereon have been paid. Any payments in excess of the interest due hereunder shall be applied first to the interest chen accrued, with che balance thereof to reduce of the principal hereof. The deferred interesc for June, July and Augusc 2005. ,n the amount of 52,437.50 shall be payable over a one ( ! ) years/twelve ( 12) month period commencing January I. 2006 in the amount of $203. I 3, month. such sum co be added to the regular monthly interest payment referred to above. The maker shall pay $100,000.00 to reduce the principal on or before January l. 2006.

THIS rs A BALLOON NOTE. THE Fl>i . .\L PRNC!P . .\l. P . .\ Y\,!ENT OR THE PRNC!P . .\L BALANCE DL'E UPON i'vL-\. TL'RJTY !S 550,000, TOGETHER WITH . .\CCRlED l>iTEREST. IF . .\NY, SHALL BE Dl'E AND PAYABLE ON Jl'L Y I. 2008.

This note is to be construed and enforced according to the laws of the State of Florida.

[f there is a default in the payment of any of said sums or imerest or in the performance of any agreements contained herein. and if ,uch default is not made good within 45 days, then. at the option of the holder of the same. then, the holder may proceed to collect upon this note. A !ate fee of five (5%) per cent of the payment, or $40.00. "hichever is less, shall become due in addition to the regular payment in the event any payment is more chan fifteen ( 15) :lays late. Further. the maker pledges as security that certain real property as is the subject of a \lortgage \"ate in the amount of 5500.000 executed on even date. Such security may only be utilized in the event of a default hereunder in which collection may be made.

Each maker and endorser agrees to pa~, all costs. including a reasonable attorney's fee. if counsel shall file an action to enforce and .::oi !ect upon. the cenns hereunder.

45TH STREET C0_1,[l,IERCE L'iVEST:1-IE:'iTS. LLC a Florida limi'.~4'Liaby,rtY. L.. C_gv, pa

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By: DFD C.\P[TAL DEVELOPME:s;T OF NDL.\'-< Rl\'ER COL"'-TY. LLC \lanaging \!ember. 45'" STREET CO\NERCE f'.i\'EST\[E\TS. LLC through David F. Dam~r3.u, \Llnagrng \.[embtr

\laker's . .\ddres,: 812 '\'W l" Street, Fort Lauderdale. FL 33311 EXHIBIT 2

Indian River County, Florida Property Appraiser's office: , ASA CFA Parcel - 32392100001016000004.0

GENERAL PARCEL INFORMATION Owner 45TH STREET COMMERCE INV LLC Property Address 4410 45TH ST, VERO BEACH, FL 32967 Mailing Address ATTN:DAVE DAMERAU

812 NW 1ST ST FT LAUDERDALE, FL 33311

Legal Description INDIAN RIVER FARMS CO SUB

Property Use TaxCode Neighborhood Appraiser/Date

LAND

PBS 2-12 W 130 FT OF W 10 A OF E 20 A OF TR 16& E 198.78 FTOF N 660 FTOFW 10AOF E 20 4000 - VACANT INDUSTRIA ~ 7G 720150.00 - GIFFORD AREA/WEST OF US1 WB - WAYNE BIBEAU - 8/31/2009 ~

Rec Land Use Zoning Acres Units Unit Type Front Depth Adj. Code 001 40K - VIND SITE NO RAIL-IL 6.86 6.86 A - ACRE O O S

SALES Date Price Granter 6/15/2005 $650,000 ·sosH 4/15/2001 $100 •CARINI

4/15/2001 $100 "TURNAGE

12/15/2000 $125,000 "TURNAGE

4115/1986 $100,000

5/15/1984 $44000 MISCELLANEOUS IMPROVEMENTS.

I n ::c 31: m :a: .... ~ I\.}

Book Page Code Vac/lmp

01892 01088 02 V

01393 00831 01 V

01393 00833 01 V

01373 02175 02 V

00732 02023 02 V

00686 02561 02

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ASSESSMENT HISTORY

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Year PUse VBy Land JV Bldg Val Misc Val CAMAVal Taxes 2010 4000 C $155,110 $0 $0 $155,110 $2,805.21 2009 4000 C $265,890 $0 $0 $265,890 $4,416.47 2008 4000 C $312,820 $0 $0 $312,820 $4,908.06 2007 4000 C $316,930 $0 $0 $316,930 $5,018.40

BUILDING PERMIT SUMMARY

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Indian River County, Florida Property Appraiser's office: , ASA CFA Parcel - 32392100001016000003.0

GENERAL PARCEL INFORMATION Owner 45TH STREET COMMERCE INV LLC Property Address 4420 45TH ST, VERO BEACH, FL 32967 Mailing Address ATTN:DAVE DAMERAU

812 NW1STST FT LAUDERDALE, FL 33311

Legal Description INDIAN RIVER FARMS CO SUB

Property Use TaxCode Neighborhood Appraiser/Date

LAND

PBS 2-12 E 10 A OF W20.96 A OF TR 16, L ESS W 250 FT AS D BK 101 PP 169 4000 - VACANT INDUSTRIA --E-7G 720150.00 - GIFFORD AREA/WEST OF US1 WB-WAYNE BIBEAU -8/31/2009 ~

Rec Land Use Zoning Acres Units Unit Type Front Depth Adj. Code 001 40K - VIND SITE NO RAIL-IG 2.37 2.37 A - ACRE O O S

SALES Date Price Granter 6/15/2005 $650,000 ·sosH 4/15/2001 $100 •CARINI

4/15/2001 $100 •TURNAGE

12/15/2000 $125,000 'TURNAGE

4/15/1986 $100,000

5/15/1984 $44000 MISCELLANEOUS IMPROVEMENTS

g :Jiii 1/;'l)

:ll:: al\: ~ "9

I=-' N

Book Page Code Vac/lmp 01892 01088 02 V

01393 00831 01 V

01393 00833 01 V

01373 02175 02 V

00732 02023 02 V

00686 02561 02 V

Prop,.c,!'tv :~\,,~,

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ASSESSMENT HISTORY Year PUse VBy Land JV Bldg Val Misc Val CAMAVal Taxes 2010 4000 C $61,240 $0 $0 $61,240 $1,117.46 2009 4000 C $91,860 $0 $0 $91,860 $1,550.23 2008 4000 C $108,070 $0 $0 $108,070 $1,720.04 2007 4000 C $109,490 $0 $0 $109,490 $1,754.65

BUILDING PERMIT SUMMARY

·. ·_r:;,;· ~>

INDIAN RIVER COUNTY, FLORIDA

MEMORANDUM

:::r:-rs rn 5 A PUBLIC HEARING

(LEGISLATIVE)

TO: The Honorable Members of the Planning and Zoning Commission

FROM:

tR~o:be:irt~M1.~K~e~arttiin~gf, AAi~P~; C~o:~~-ty~DDe;v~elopment Director

Sasan Rohani, AICP S -/{. Chief, Long-Range Planning

DATE: February 3, 2011

SUBJECT: County Initiated Request to Amend Comprehensive Plan Future Land Use Element Policy 1.16 to Allow up to 25% Recreational Vehicle Use in Mobile Home Rental Parks of less than 20 Acres in Size

It is requested that the data herein presented be given formal consideration by the Planning and Zoning Commission at its regular meeting of February 24, 2011.

DESCRIPTION AND CONDITIONS

This is a county initiated request to amend the text of policy 1.16 of the Comprehensive Plan's Future Land Use Element to allow up to twenty five percent (25%) recreational vehicle use within the Mobile Home Rental Park (MHRP) land use category for parks less than 20 acres in size.

Comprehensive Plan Amendment Review Procedures

Although the number of plan amendments that a local government may consider is not limited, stale law regulates the frequency with which local governments may amend their comprehensive plans. According to Florida Statutes, plan amendments are limited to twice per calendar year. For that reason, the county accepts general plan amendment applications only during the "window" months of January and July. In this case, the subject application was submitted during the January 2011 window.

The procedures for reviewing a comprehensive plan amendment involve several steps. First, the Planning and Zoning Commission, as the Local Planning Agency, conducts a public hearing to review the request. The Commission has the option to recommend approval or denial of the Comprehensive Plan amendment request to the Board of County Commissioners.

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Following Planning and Zoning Commission action, the Board of County Commissioners conducts two public hearings. The first of those hearings is for a preliminary decision on the amendment request. At that hearing, the Board determines whether or not the amendment warrants transmittal to the state Department of Community Affairs (DCA) for state consideration.

If the Comprehensive Plan amendment is transmitted, DCA conducts a review, which includes soliciting comments from the Treasure Coast Regional Planning Council, several state agencies, and neighboring local governments. After its review, DCA compiles its comments in an Objections, Recommendations, and Comments (ORC) Report and transmits that report to the County. Subsequent to staff addressing any issues that were raised in the ORC Report, a second and final Board of County Commissioners public hearing is conducted. If the Board approves the request, the approved amendment is submitted to DCA for a compliance determination. The effective adoption date is when the amendment is found "in compliance" by DCA.

This public hearing is the first step in the comprehensive plan amendment process. At this time, the Planning and Zoning Commission must decide whether or not to recommend approval of the proposed amendment to the Board of County Commissioners.

Background

In 2007, the Board of County Commissioners adopted a comprehensive plan amendment that established a new Mobile Home Rental Park (MHRP) land use category and changed the future land use plan designation of 12 existing mobile home rental parks to MHRP. The purpose of that amendment was to offer added protection to the residents of rental parks from conversion of the parks to other uses, resulting in displacement of the residents. Since that comprehensive plan amendment was approved, the owner of one of the re-designated mobile home parks (Shady Rest) applied for and was approved for annexation into the City of Sebastian. Subsequently, Sebastian re-designated the park to allow for its conversion to commercial use after a 5 year period.

In 2008, staff and Commissioner Gary Wheeler spoke with two mobile home rental park owner representatives about some of the challenges of keeping rental parks occupied and financially feasible. At that time, the representatives indicated that some rental parks would be more financially feasible, and less prone to conversion, if a limited number of mobile home rental spaces could be rented-out for recreational vehicle (RV) use.

Subsequently, the BCC considered a proposed comprehensive plan amendment to allow a limited number of RV units in mobile home rental parks designated MHRP. That amendment, however, was opposed by residents of several large mobile home parks. After discussion, the Board voted to not transmit the proposed amendment to the State Department of Community Affairs for its review. As a result, current county comprehensive plan policy does not allow RVs in MHRP designated mobile home parks.

In 20 I 0, staff and Commissioner Wheeler spoke with representatives of two resident-owned mobile home parks. The representatives recommended that the county again consider allowing a limited number of RVs in mobile home parks to make the parks more financially sustainable. In response, staff

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drafted a new comprehensive plan amendment and a corresponding LDR amendment that would not affect the larger mobile home parks whose residents objected to the 2008 initiative. Those drafts were presented to the Board of County Commissioners on September 7, 2010. At that time, the Board reviewed the drafts and directed staff to initiate an amendment to Comprehensive Plan Future Land Use Policy 1.16 to allow a limited number of RVs in small mobile home rental parks.

In November 2010, staff and Commissioner Wheeler presented and explained the draft changes to a large gathering of residents from various mobile home parks. After an extensive question and answer session, there were no objections to the proposed changes.

ANALYSIS

Along US Highway 1, there are several older, grandfathered-in mobile home rental parks that continue to have a mix of RV rentals along with mobile home rentals. Generally, those parks are small in scale (20 acres or less) and consist mostly of mobile homes, with a small portion of RVs. Those parks have functioned well as mobile home rental communities, while allowing a limited number of RVs. Thus, staffs research indicates that a limited number of RVs are compatible with mobile homes in small scale mobile home rental parks.

To allow a limited number of RVs in all small mobile home parks, staff has drafted a comprehensive plan text amendment that would allow up to 25% of the mobile home spaces within MHRP designated parks that are 20 acres or less in size to be used for RVs. Based on the proposed 20 acre park size limitation, the RV allowance would be applicable only to the following three parks:

I. Tanglewood Village (south US 1) 2. Holiday Village (Oslo Road/27th Ave) 3. Ranchland (SR60/82nd Ave)

17.57 acres 18.18 acres 16.01 acres

Thus, the proposed amendment, if adopted, would not allow owners oflarger parks such as Heron Cay and Village Green to obtain approval for RV spaces.

To complement the proposed land use plan amendment, staff has drafted an LDR amendment that would set limits to, and provide regulations for, RVs in rental parks. Consistent with the draft plan amendment, the proposed LDRs would allow up to 25% of the rental park's mobile home spaces to be used for RV spaces. Under the draft regulations, RVs would be treated the same as mobile homes for density and setback purposes, and no increase in density would be allowed. If the Board votes to approve the proposed plan amendment, then staff will bring forward the LDR amendment for formal adoption.

Consistency with Comprehensive Plan

Comprehensive Plan amendment requests are reviewed for consistency with all applicable policies of the comprehensive plan. As per section 800.07(1) of the county code, the "comprehensive plan may only be amended in such a way as to preserve the internal consistency of the plan pursuant to Section 163.3177(2), FS."

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For a proposed amendment to be consistent with the plan, the amendment must be consistent with the goals, objectives and policies of the comprehensive plan. Policies are statements in the plan, which identify actions the county will take in order to direct the community's development. As courses of action committed to by the county, policies provide the basis for all county land development related decisions-including plan amendment decisions. While all comprehensive plan objectives and policies are important, some have more applicability than others in reviewing plan amendment requests. Of particular applicability for this request is Policy 14.3.

Future Land Use Element Policy 14.3

In evaluating a comprehensive plan amendment request, the most important consideration is Future Land Use Element Policy 14.3. This policy requires that one of four criteria be met in order to approve a land use amendment request. These criteria are:

• The proposed amendment will correct a mistake in the approved plan; • The proposed amendment will correct an oversight in the approved plan; • The proposed amendment is warranted based on a substantial change in circumstances affecting

the subject property; or • The proposed amendment involves a swap or reconfiguration of land use designations at

separate sites, and that swap or reconfiguration will not increase the overall land use density or intensity depicted on the Future Land Use Map.

This proposed future land use element amendment meets Policy 14.3's second criterion. When the MHRP land use designation category was first established in 2007, the feasibility of allowing limited recreational vehicle rentals was not considered. Because some rental parks would be more financially feasible and less prone to conversion to other uses if a limited number of mobile home rental spaces could be rented-out for recreational vehicles (RVs), allowing limited RV use would further the county's policy of protecting mobile home residents from conversions. Since this was not considered at the time that the MHRP land use designation was adopted, the proposed text amendment meets the second criterion of Future Land Use Element Policy 14.3.

Summary of Consistency with the Comprehensive Plan

While Policy 14.3 is particularly applicable to this request, other Comprehensive Plan policies and objectives also have relevance. For that reason, staff evaluated the subject request for consistency with all applicable plan policies and objectives. Based upon that analysis, staff determined that the request is consistent with the Comprehensive Plan.

CONCLUSION

Staffs position is that allowing a limited number ofRVs within small mobile home rental parks will not adversely affect such parks and will allow owners of small-scale parks a potential additional revenue stream. That additional revenue could allow those parks to operate in a more financially sustainable way and relieve pressure for conversion to a more profitable use. Since this RV initiative is limited to

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Based on the analysis, staff recommends that the Planning and Zoning Commission recommend that the Board of County Commissioners approve the proposed comprehensive plan text amendment to allow up to 25% of spaces in mobile home rental parks of less than 20 acres to be used for recreational vehicles (RVs).

ATTACHMENTS:

1. Application 2. Draft Comprehensive Plan Text Amendment

Ali!J~OV!D AS TO FORM A:lliD iJi • Al. S FICIENCY

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COMPREHENSI~~1t~~~°ii i:o:NDMENT(CPTA) i,;jfff,,I;''\i;;:·t:;·~t;,, INDIAN RIVER COUNTY fl§ ' '. •···· ·:,

Planning Division accepts Comprehensive Plan Text Amendment applicationit i'nlyd11rillg· . 'I)·.·.;.; ·,c..._i -... , the months of January and July of each year. Each application must be co!fyp.lete wheu . ::: submitted aud must include all required attachments. An incomplete applicat~aJ:ill not ... , , ,,/ be processed and will be returned to the applicant. ·Vit,r }' ,,, :;p'

····--•-.:.'...'..ci-!,S:..'t--

AssignedProjectNumber:CPTA- r;<D!/ 0/{)0Vt/ -t:, &.-2-&S-

Current Owner/Applicant Agent Name: 'S+n_v\ 6oli\A 3 ,

Complete Mailing I SDI 21-fvi <:;iv-,,.,f vl1 Ft-

Address: Phone # (including area

llz.,- 22~ - / 253 code) Fax# (including area code) E-Mail: s 6, liw, @, lil''-.~cV, GM,i

Contact Person: s-f,,,,,, ft'• ' ,, (,,'v..a .

,

s~~reof~ffm~t: __ ~----~------· ___________ _

Please attach the following items to this application. Do not ignore any of the following items. Indicate "NIA" if an item is not applicable.

I. What is the proposed amendment's citation in the Comprehensive Plan? Include the element or sub­element, page number, and if aJ?plicable, the objective and policy number(s).

!='-,-1-u,,/'i, L,v,,J Us'- f{~ lolicJ I, l 6 2. What is the exact language pro~osed to be added and/or deleted from the plan?

(pltQJt s-u ,,,#oc,ft.J, ,> . 3. What is the purpose of the request? . , / b:/ ~ . -1,,.,€_ pcvtks ( /es.r ,ft...,. 20 "'cll<S)

in q,1/aw (j.,,,,itJ Ll~ of /Z VSjl'ICe.5 t\11 '"'"I ""' 'e_ V'eM

4. What,isthejustificationfortherequest? . _ r N cf 5.,,,.(/ wk, ,.,,1..,;/ p,r,,-kc1i•q sucli P"'fl'K.s v," ,

A llow1 "j '-'> e_ cf RVs ""11 1'.c1 ~,,,.,e,e_ e<cMCV"!C.. v, Cc I Ii j S("'JJ t.P R.< 1144" ,_;II "«~/J"«'.j -H,,,;,, -{fy;,f a1J<~,,J.111ec, 5. Provide an analysis of the proposed amendment's consrntencywith all applicable goals, objectives, and

policies of the comprehensive plan. ,~ 1",:,pov>'t {o ,{:.,i/ow-

6. Provide an analysis of the proposed amendment's impact on public facilities and services. No a.li,it-,'lMcJ. iv-.pc«4s ...,,[ I ,res« If SiVJce ~ ;,;;I/ b,, IA< '"'c,,.,,_s€. ;' '1 d¼s ;1 .

7. Provide an analysis of the proposed amendment's environmental impacts. · l,Jovie.

8. Provide a check, money order or cash in the amount of$2.600.00, made payable to Indian River County. Co=½ - ; ~; + i .. -led 1 IAo- -k . THE APPLICANT MUST ATTEND A PRE-APPLICATION CONFERENCE WITH LONG­RANGE PLANNING SECTION STAFF PRIOR TO APPLYING.

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Attachment 2

Comprehensive Plan Future Land Use Element

Policy 1.15: The Mobile Home Rental Park Land Use designation will be applied only to those properties that contain mobile home rental parks fifteen (15) acres or more in size within the unincorporated portions of the county and limited to lands that are located within the urban service area.

Policy 1.16: Development in a Mobile Home Rental Park Land Use designation shall be limited to the following:

Mobile Home Residential Uses • up to 8 units/acre

Recreational Vehicle Uses (up to 25% of allowed units, within parks of less than 20 acres) up to 8 units/acre

Recreation Uses • up to 0.35 FAR

Public Facilities • up to 0.35 FAR

Institutional Uses • upto0.35FAR

Bold Underline: Additions to Ordinance Strilrn tht=01:1gh: Deleted Text from Existing Comp Plan Policy

Indian River County

F:\Community Development\Comprehensive Plan Text AmendmentsVanuary 2011\MHRP\Proposed policy 1.16 FLUE.doc

INDIAN RIVER COUNTY, FLORIDA MEMORANDUM

PUBIC HEARING SPECIAL EXCEPTION USE AND

ASSOCIATED ADMINISTRATIVE PERMIT USE

(QUASI-JUDICIAL)

TO: The Honorable Members of the Planning and Zoning Commission

Robert M. Keating, AICP Comrti;w;~ Development Director

THROUGH: Stan Bol~CP; Planning Directo~ l'v\

FROM: John W. McCoy, AICP; Senior Planner, Current Development

DATE: February 14, 2011

SUBJECT: Luisa Garcia's Request for Special Exception Use Approval for a Demolition Debris Facility and for Administrative Permit Use Approval for an Associated Recycling Facility to be Known as A-1 Walee Recycling Center [2000090170-66004 / SP-SE-11-01-01]

It is requested that the data herein presented be given formal consideration by the Planning and Zoning Commission at its regular meeting of February 24, 2011.

DESCRIPTION & CONDITIONS

Schulke, Bittle, & Stoddard, LLC, on behalf of Luisa Garcia, has submitted an application for:

• special exception use approval for a demolition debris facility; • administrative permit use approval for a recycling facility associated with the demolition debris

facility; and • major site plan approval for the entire site.

For many years, the subject 9+ acre site contained a 13,000 sq. ft. packing house located on the western portion of the property. That former packing house facility is now used by an agricultural irrigation company.

The subject site (6350 9th Street SW) is located on the north side of 9th Street SW, east of66th Avenue, is zonedA-1, Agricultural 1 (up to l unit per 5 acres), and has anAG-1, Agricultural (upto l unit per 5 acres), land use designation. In agricultural districts, demolition debris activity is a special exception use requiring approval by the Board of County Commissioners (Board), while a recycling center is an administrative permit use requiring administrative permit use approval by the Planning & Zoning Commission (PZC).

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According to the applicant, the proposed facility will process demolition debris and other recyclable materials, and will ultimately "pass through" any un-recyclable solid waste to the landfill, located approximately I ½ miles to the southwest. Generally, the A-1 Walee operation will involve trucks bringing roll off containers from construction and demolition sites to the proposed facility, although some material may be dropped off by private individuals. Those containers will be emptied (tipped) at the site, and debris will be sorted into material groups such as concrete, wood, land clearing debris, metals, plastic, and cardboard for potential recycling. Some of the materials, such as concrete and some of the wood, will be processed on site, with the wood being mulched or chipped and the concrete being crushed into aggregate. Periodically, a portable crusher will be brought on site to crush the concrete. Both the wood mulching and the concrete crushing aspects of the operation are considered part of the demolition debris special exception use request. Other recyclable materials such as metals, plastics, and cardboard will be stored on site and periodically trucked away for re-cycling. That aspect of the operation constitutes a recycling use, requiring administrative permit use approval.

At this time, the Planning and Zoning Commission is to consider making a recommendation to the Board of County Commissioners to approve, approve with conditions, or deny the special exception request for the demolition debris aspect of the operation. Pursuant to Section 971.05 of the land development regulations (LDRs), the Planning and Zoning Commission is to consider the appropriateness of the requested special exception use for the subject site and the compatibility of the use with the surrounding area. In so doing, the Commission may recommend reasonable conditions and safeguards necessary to mitigate impacts and to ensure compatibility of the use with the surrounding area.

In addition to providing a recommendation on the special exception use request, the PZC is to take action on the administrative permit use request for the recycling facility. As such, the PZC is to approve, approve with conditions or deny the administrative permit request. Since the recycling center aspect of the facility is integrated into the demolition debris, both conditional uses need to be approved for the facility to be functional.

ANALYSIS

1.

2.

3.

4.

5.

Size of Development: Overall site: 9 .10 acres Project area: 8.05 acres

Note: The project area consists of the overall site, less right-of-way to be acquired for Oslo Road.

Zoning Classification:

Land Use Designation:

Building Area:

Impervious Area:

A-1, Agricultural I (up to 1 unit per 5 acres)

AG-I, Agricultural (up to 1 unit per 5 acres)

Existing: To be removed:

13,083 sq. ft. ( office and storage) 5,083 sq. ft.

Proposed ( end of project): 8,000 sq. ft. ( office, storage)

Existing Proposed Total

64,226 sq. ft. 76,040 sq. ft.

140,266 sq. ft.

Note: The new impervious area consists of a new parking, sorting and process area, and an area for outdoor storage of materials to be recycled or disposed of at the landfill.

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6. Phasing: The project is to be developed in a single phase.

7. Open Space: Required: Proposed:

60% 60%

8. Traffic Circulation: The applicant proposes two driveways connecting to Oslo Road. One of the driveways will consist of the site's existing two-way driveway connection to Oslo Road on the western side of the property. That driveway will be converted to an exit only driveway to serve trucks that are leaving the facility. A new two-way driveway is proposed near the center of the site's Oslo Road frontage. The two-way driveway will be used by incoming trucks and will be used as an entrance and exit for employees. Gates are proposed at both driveway connections to Oslo Road, and are designed to meet the County's gate setback and design criteria. The project's traffic circulation plan and proposed Oslo Road connection have been reviewed and approved by the County's Traffic Engineering Division.

9.

As proposed, this facility is projected to generate fewer than I 00 total average daily trips. Based on the low trip count, there are no off-site traffic improvements required of the applicant, and none are proposed. The trip generation projection has been approved by Traffic Engineering.

Off-Street Parking: Required: Provided:

16 spaces 16 spaces

10. Dedications and Improvements:

Oslo Road Right-of-Way: The County's thoroughfare plan requires 130' of ultimate right-of­way for Oslo Road. Presently, 60' of right-of-way exists for Oslo Road. The proposed site plan design accommodates an additional 70' ofright-of-way for Oslo Road to be purchased by the County.

Sidewalks: The County's bikeway and sidewalk plan requires a sidewalk along the site's Oslo Road frontage. Prior to the issuance of a certificate of occupancy, the applicant will either need to construct or bond out for the required sidewalk improvement.

11. Stormwater Management: A single wet stormwater management area is proposed on the east side of the subject site. The preliminary stormwater management plan has been reviewed and approved by the Public Works Department. Pursuant to Chapter 930 of the LDRs, a County Type "B" Stormwater Permit will be required prior to site plan release.

12. Utilities: The existing building (former packing house facility) on the site is served by county water and a septic tank/drainfield system. Use of these existing services for the proposed facility have been approved by the County Department of Utility Services and the Environmental Health Department.

13. Solid Waste Disposal District Requirements: During the site plan review process, planning staff coordinated with Solid Waste division staff and the County Attorney on solid waste issues associated with the proposed project. In part or in whole, the applicant's operation may be engaged in activities that require a franchise or agreement from the Solid Waste Disposal

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District. Currently, the applicant is working through the County Attorney's Office and the Department of Utility Services with respect to the franchise agreement issue. That work will lead to a determination as to whether or not a franchise agreement is required. Prior to site plan release, the applicant will need to obtain either a franchise agreement or a determination that no franchise agreement is required from the Solid Waste Disposal District.

14. Surrounding Land Use and Zoning: North: Vacant/A-I East: South: West:

Vacant/A-I Oslo Road, Vacant/A-I Vacant/A-I

15. Landscape Plan: The proposed landscape plan satisfies the requirements ofLDR Chapter 926 for perimeter, interior, roadway, and non-vehicular open space landscaping areas. Along the site's south and west boundaries, a 25' wide Type "B" buffer with an 8' opaque feature will be provided, while a 30' wide Type "B" buffer with an 8' opaque feature will be provided along the site's north and east boundaries. The buffers must be completed prior to the issuance of a certificate of occupancy (C.O.) for the facility.

16. Specific Land Use Criteria for Recycling Centers and Demolition Debris Sites: Pursuant to LDR section 971.26(2) and 971.27(1) the following criteria apply to the proposed administrative permit use and special exception use:

Recycling centers ( administrative permit)

1. A site plan meeting all the requirements of Chapter 914;

Note: The site plan submittal meets or exceeds the requirements of Chapter 914.

2. A Type "B" buffer provided on all boundaries which have non-commercial uses on adjacent properties;

Note: The applicant proposes a Type "B" buffer along all of the project site's boundaries.

3. All stored recycling materials must be completely screened from adjacent properties and road rights-of-way.

Note: The applicant proposes an 8' foot high opaque feature along all project site boundaries. This opaque feature is designed to screen on-site activities and stored materials from adjacent properties and Oslo Road.

Demolition debris sites (special exception).

1. No debris shall be stored or buried within thirty (30) feet of any property line;

Note: No debris will be buried on site and no debris will be stored within 30 feet of any property line.

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2. All demolition activities shall be completely surrounded by a continuous one hundred (100) percent opaque fence or wall at least eight (8)feet in height, with a Type "C" buffer between the fence and adjacent property boundaries and road rights-of-way;

Note: The applicant proposes an 8' foot opaque feature that consists of a 4' berm and a 4' high wall with landscaping. The canopy trees and understory trees will be planted on both sides of the wall, while all of the shrubs will be planted on the outside of the wall. The proposed Type "B" buffer will exceed the Type "C" buffer requirement referenced above.

3. No burning activities shall be permitted on the site, except as may be permitted pursuant to Chapter 925, Open Burning/Air Curtain Incinerator Regulations, of the County land development regulations;

Note: No burning of any material is proposed. All material tipped at the site will either be recycled or sent to the landfill.

4. The applicant must obtain all required permits from the department of health and rehabilitative services and other jurisdictional agencies.

Note: The applicant is required to obtain all appropriate jurisdictional agency permits prior to site plan release.

17. Fire Safety: Based on coordination with the Fire Division, the applicant will be required to limit all piles of material on site to 25' in height. The minimum aisle width between piles will be a 25' to allow the operator and the Fire Division access to the piles of material at all times.

18. Compatibility: The applicant is proposing to operate Monday- Sunday from 7:00 am to 5:00 pm. Because some aspects of the operation on the± 9 acre subject site have the potential to create noise and dust from the crushing of concrete and the mulching of wood, the applicant has agreed to limit these types of operations ( crushing and mulching) to Monday- Friday from 7 :00 am to 5:00 pm. In addition, the applicant has acknowledged that the facility will be required to meet the County's Chapter 974 noise requirements for agricultural areas. With respect to air emissions, the applicant has indicated that dust control will be handled by using sprinklers in stockpile and processing areas and by providing landscape buffers. Finally, the applicant has indicated that the facility will not accept hazardous waste or tires, except for small quantities that may be part of and incidental to a large load of demolition materials. Any hazardous waste or tires will be separated out and transferred to the landfill.

As designed, the site plan provides several measures that address compatibility. Those measures include dense perimeter landscape buffers, an 8' berm/wall opaque feature, large setbacks (150' - 200') between the north and east site perimeters, and the location of the process/stockpile area in the central portion of the site. In addition, the existing building located on the west side of the site will provide some buffering/screening between the main processing/stockpile area and the property to the west.

F:\Community Development\Users\CurDev\P&Z\2011\A-l WaleePZC report.rtf 5

Through its analysis, staff has determined that the proposed use is consistent with applicable comprehensive plan policies and zoning requirements and has determined that the proposed use satisfies all specific land use criteria for recycling centers and demolition debris facilities. Based upon the project design and the conditions recommended below, staff finds that the project is compatible with surrounding properties and that potential adverse impacts are addressed.

RECOMMENDATION

Based on the above analysis, staff recommends that the Planning and Zoning Commission recommend that the Board of County Commissioners find that in conjunction with the recommended conditions:

I. It is empowered under the provisions of Chapter 971 to review the special exception applied for;

2. The granting of the special exception will not adversely affect the public interest;

3. The application satisfies the general and specific criteria required for special exception approval; and

4. The conditions stated below are adequate to ensure compatibility between the special exception use and surrounding land uses.

Staff further recommends that the Planning and Zoning Commission grant administrative permit use approval for the proposed recycling facility subject to the Board of County Commissioners approval of the demolition debris special exception use, and recommends that the Planning & Zoning Commission recommend that the Board of County Commissioners grant special exception use approval for the proposed demolition debris facility with the following conditions:

1. Prior to site plan release, the applicant shall obtain from the Solid Waste Disposal District either a franchise agreement or a determination that no franchise agreement is required.

2. Prior to issuance of a certificate of occupancy (C.O.), the applicant shall: a. Construct all site related buffers, and b. Construct or bond out the sidewalk along Oslo Road

3. The following operational conditions shall apply: a. Hours of operation for recycling and demolition debris activities shall be prohibited

from 5 :00 pm to 7 :00 am each day. The county may temporarily suspend or modify this hours of operation limitation during clean-up and recovery of a disaster event.

b. No materials shall be processed ( crushed, mulched) on Saturdays or Sundays. c. Piles of material shall be limited to 25' in height. d. A driving aisle with a minimum width of25' shall be maintained between the piles at all

times.

4. No material shall be buried or burned on site.

5. Through the use of sprinklers and other techniques, the facility shall be operated and maintained so as to control dust and emission of particulates off-site.

F:\Community Development\Users\CurDev\P&Z\2011\A~l WaleePZC report.rtf 6

6. All activities conducted on site shall be subject to the County's Chapter 974 noise requirements for uses in agricultural zoning districts.

ATTACHMENTS

1. Application 2. Location Map 3. Site Plan 4. Landscape Plan 5. Aerial

F:\Community Development\Users\CurDev\P&Z\2011\A•I WaleePZC report.rtf 7

SPECIAL EXCEPTION SITE PLAN APPLICATION FORM (SPSE)

COMPUTER ASSIGNED PROJECT#: ,j. 000 O'i DI 7 {) - &/,QI) ASSIGNEDFILE#: . -S - Ii- 1-0

PROJECTNAME(PRINT): A-1 Walee Recycling Center, LLC

PROPOSED PROJECT USE: Construction debris transfer and recycling facility

CORRESPONDING PRE-APPLICATION CONFERENCE PROJECT NAME AND !RC ASSIGNED FILE NUMBER (IF ANY): 2000090170 / 65843

OWNER: (PRINT) Jordan Sprinkler Systems, Inc.

NAMEc/o Al Walee Recycling Center, LLC

1050 Dalbello Way

ADDRESS Vero Beach, FL

CITY STATE

AGENT: (PRINT) Same as project engineer NAME

ADDRESS

CITY STATE 3 2 9 6 6 CT.2_D5 3 2 --=5~6~8~9 _____ _ _ __ L_) __ -_______ _ ZIP PHONE

NA FAX NUMBER

NA EMAIL Louisa G ia

CONTACT PERSON

ZIP PHONE

FAXNUMBER

EMAIL

0 CONTACT PERSON ~-SIGNATURE OF OWNER OR AGENT

PROJECT ENGINEER: (PRINT) Schulke, Bittle & Stoddard, LLC

PROJECT ARCHITECT:(PRINT)

NAME 1717 Indian River Blvd., Ste. 201

ADDRESS Vero Beach, FL CITY STATE 3 2 9 6 0 ( 7 7 2) 7 7 0 ---=-9 6cc2=.c2=------­ZIP PHONE 772-770-9496

FAX NUMBER jbittle@sbsengineers.com

EMAIL Jodah Bittle, P.E.

NAME

ADDRESS

CITY ___ L_)

PHONE ZIP

FAX NUMBER

EMAIL

CONTACT PERSON CONTACT PERSON

1801 27th Street, Vero Beach, FL 32960

STATE

C:\Documents and Settings\sjohnson\Local Settings\Temporary Internet Files\Content.Outlook\GXP096XI\spse packet.doc Revised April 2010 13 of 14

ATTACHM£ffT 1

IIDOES THE REQUEST INCLUDE A CONCEPTUAL PLAN ONLY OR A CONCEPTUAL AND "FINAL" SITE PLAN?: Conceptual and Final Site Plan

II AMOUNT OF NEW IMPERVIOUS SURFACE: (SO.FT.) • 93,770 SF

IISITEADDRESS: 6350 9th Street SW, Vero Beach, FL 32968 . ----------------------

llsITE TAX ID#(S): 33-39-20-00001-0140-00001. o •

llrs ALL OR A PORTION OF PROJECT IN ENVIRONMENTALLY SENSITIVE AREA AS •

DESIGNATED IN THE COMPREHENSIVE PLAN OR ADDRESSED IN A PRE-APP CONFERENCE? _____ YES X NO

II FLOOD ZONE. ___ x _____ _ •

ILoNING:. __ ...:.A=---=1'------•

l[tREA OF DEVELOPMENT (NET) ACREAGE:.___,4c..c·-=-5-=-5_a=-c=rc..ce=s'--------

IIIIIPROPOSED CHANGES TO EXISTING DEVELOPMENT (IF APPLICABLE): * A. NUMBER OF UNITS: FROM N/A TO _______ _ B. DENSITY FROM N/A UNITS PER ACRE TO ___ UNITS PER ACRE

C:\Documcnts and Scttings\sjohnson\Local Settings\Temporary Internet Files\Content.Outlook\GXP096XI\spse packet.doc Revised April WlO 14~14

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' ' ~ r -.-. - ----- ~--- - 1, t I t _______ ...,._ ____________ J I : ________ _,,.,________________ : ! _________ ,, .. _______________________ ..,,.. __________________ /

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1711 INDIAN RIVER BLVD., surre 201 \/ERO BEAcH. FLQRIIJA 32960 TEL 1721710-..,2 FAX n, I nO--!Moo EWJL ;,,O>{!Q,_=m

' ' I, CC:""CCC::c: ,, I ~ c=t==:!::: ' . I '. '1 ~ i~ : ·=j=::f::

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LANDSCAPE PLAN

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1717 IN!JIAN R<IIER BLIID, sum; 20, VERO BE1ACH. FI.OOIM J'960 TR T72l170-95l2 FAX712/17(J.9400 E""-'li<l~n<lioo""rom

Al WALEE RECYCLING CENTER A£RIAL CITTl .t ST/11/CW/l<I. fl/G/J/liJr,N(! • W//J PiNINING • fJ/V!fliJM,;ENW._ P£R111m,ic

crnnnwno or""""""""'""-"'"'"'" 1117 '"""-~ RIVER BLVD .• S\JIT"E 20\ VERD BEACH, FLORIDA J200il

TEL 7121 TIO-";:» FAX 772/TIO-!l49' EWJL «foril,,b,ea-•c,,oam

A1'TACHMEffT 5

INDIAN RIVER COUNTY, FLORIDA MEMORANDUM

TO: The Honorable Members of the Planning and Zoning Commission

Robert M. Keating, AI P Community Development

.,,,#5 FROM: Stan Boling, AICP

Planning Director

DATE: February 18, 2011

PLANNING MATTERS

SUBJECT: Planning Information Package for the February 24, 2011 Planning and Zoning Commission Meeting

For this meeting's packet, the following articles are provided:

(I) "Welcome back: Florida tourism rebounds", Herald Tribune, February 17, 2011, Kevin McQuaid.

(2) "Florida's real estate outlook perks up in several areas, UP survey finds", University of Florida News, February 2, 2011, Milenko Martinovich.

(3) "Citrus Could Face New Treat", The Ledger, February 8, 2011, Kevin Bouffard.

(4) "A Road Less Traveled", Miller-McCune, January 1, 2011, Melinda Bums.

(5) "A Physicist Solves the City", The New York Times, December 17, 2010, Jonah Lehrer.

(6) "Control the Masses", Architect Magazine, January 3, 2011, Diana Lind.

cc: Board of County Commissioners Joe Baird Michael Zito

F:\Comrnunity Development\Users\CurDev\P&Z\ARTICLES\Articles for 2011\12-9-10 articles.doc

ullei:a!fl'ribun~ -Tl 'l", -,.,rw I\, I," /Ul,'C i'""'"'1lll, lltH1''<'"'""""·'"' ""' ""'V· '"" ~,rn ord~r ;)r'.)S1;n11,l•111,-r,,~,.1~ co~:~,, fu; ,1,,1,,t,ui,,,,,, 1,, ,ow co!l<e:O<J<>Oe- •cl1011rs or c;usi<JCncc,; Mra or.,~,, ll>e' ·•Rc:,rip,s·' loci' ,,,~, c:weN~ '11><>Ye a~e ,,iu,;i(,. Order a re nnt or this Miele now

Printed on page Al

Welcome back: Florida tourism rebounds

By Kevin Md)imid

Published: Thursday, February 17, 2011 at 1:00 a.m.

Bolstered by gradual economic recovery and new attractions, tourism rebounded in

Florida last year by 2.1 percent, the state's visitor agency reported Wednesday.

The upswing -- reversing a two-year decline -- came despite economic malaise in the

early part of 2010 and the massive BP spill that began in April in the Gulf of Mexico,

an environmental disaster that spewed hundreds of millions of gallons of oil into

state waters.

To date, fears that oil from the four-month, underwater gusher would wash ashore

and devastate Florida's largest industry have not materialized, though oil did reach

beaches in Pensacola and other parts of the Florida Panhandle last summer.

"Absent the spill, we're confident the numbers would have been even better," said

Will Seccombe, chief marketing officer at Visit Florida, the state's tourism bureau.

"We clearly lost market share because of the spill."

In all, roughly 82.6 million visitors traveled to Florida in 2010, according to the

preliminary estimates from Visit Florida. Final numbers will be released later this

year.

Sarasota County saw a 3 percent bump in total visitors last year, while Manatee

County experienced an increase of 2.6 percent, according to a pair of firms that track

travel for the counties.

Tourism statewide had been down for the past two years, the result of the Great

Recession cutting into discretionary spending and leisure travel.

From 2008 to 2009, the total number of visitors to the state dropped nearly 4

percent.

The tourism industry is critic.al to Florida because visitors spend nearly $60 billion

annually here and generate 22 percent of the state's total sales tax revenue. Tourism

also accounts for roughly a million Floridajobs.

"To be honest, I'm surprised by the numbers -- pleasantly surprised," said Mark

Becker, general manager of the 294-room Hyatt Regency in Sarasota and chairman

of the Sarasota Convention and Visitors Bureau's board of directors.

Becker said he believes the 2010 Super Bowl in Miami, along with the recently

opened Harry Potter theme park in Orlando, may have contributed to boosts in total

visitors.

Certain segments showed significant improvement in 2010.

Canadian travel to Florida, boosted by unprecedented parity in the currency of the

two countries, surged by 16.2 percent.

Foreign travel rose by 13.6 percent, fueled largely by South American tourists who

flocked to Orlando destinations and Miami.

Page 1 of2

http://www.heraldtribune.com/apps/pbcs.dll/article?AID=/20110217/ARTICLE/10217107... 2/17/2011

Page 2 of2

But tourism officials, industry participants and economists cautioned that while the Copyright © 2011 HeraldTribune.com - All

total visitor numbers may be up, the travel industry continues to reel from depressed rights reserved. Restricted use only.

room rates and discounts.

"I still think the numbers overall might gloss over a variety of factors, particularly

regarding pricing and how much can be charged per room night," said Sean Snaith, a

University of Central Florida economist and the director of the school's Institute for

Economic Competitiveness.

"Recovery is under way, but the consumer is still dealing with the fallout from the

recession and the housing crisis," Snaith said. "So the details may not be as rosy as

the state's headline numbers suggest."

Southwest Florida's lodging properties and condominium rentals have suffered

declines in average daily rate for the past two years, said Virginia Haley, president of

Sarasota County's visitors bureau.

In 2010, the average room rate eroded 5 percent from 2009, which also saw losses in

rates.

"Our problem is our average daily rates are still going down," Haley said. "Florida as

a whole seems to be doing better but we're not seeing the revenue they are in New

York or Chicago, because leisure travel is seen as a place where one can wheel and

deal and there's much more discretion in rates."

Even at 82.6 million visitors, the state's 2010 figures were off by 2.25 percent from

2007, when 84.5 million people traveled to Florida. That year posted the highest

number of tourists since 1999, when Visit Florida's current methodology for tracking

tourism began.

Still, Visit Florida officials said the visitor trend line appears to be headed in the right

direction.

In the final quarter of last year, for example, the total number of visitors rose 5.1

percent when compared with the same three-month period in 2009.

Just as importantly, numbers were higher in every category tracked -- including

domestic, Canadian and foreign travel. Enplanements -- the total number of

passengers arriving -- at the state's 14 major airports were also up when compared

with the end of 2009.

"We started to see gains in the fourth quarter of 2010 as consumer confidence rose,

and that has spilled over into 2011 so far," the Hyatt Regency's Becker said. "But in

the first three quarters oflast year, I don't believe anyone saw any major lift.

"We're hoping the recent trends last."

This story appeared in print on page At

http://www.heraldtribune.com/apps/pbcs.dll/article?AID=/20110217/ARTICLE/10217107... 2/17/2011

University of Florida News -Florida's real estate outlook perks up in several areas, UF s... Page 1 of2

LJniver:sityJ>f Florida News Florida's real estate outlook perks up in several areas, UF survey finds

Filed under Business, Florida, Politics, Research on Tuesday, February 1, 2011.

GAINESVILLE, Fla. - Optimism has increased slowly but steadily in Florida real estate markets through the fourth quarter of 2010, a new University of Florida survey finds.

The fourth quarter Survey of Emerging Market Conditions found improvement in several key categories, including the outlook for sales in new single-family homes and condominiums, office occupancy, retail occupancy, land investment and capital availability.

Much of the optimism derives from the political arena with the defeat last fall of Amendment 4, a proposed constitutional amendment that would have required a referendum for all changes to local government comprehensive land-use plans, said Timothy Becker, director of UF's Bergstrom Center for Real Estate Studies. The conclusion of mid-term elections also eased respondents' uncertainty as it provided a clearer picture of the future, Becker said.

"The state welcomed a new governor who has promised to make Florida a more business­friendly state," Becker said. "If he can succeed on his goals, respondents believe it will have a positive impact on the real estate market. Any help in attracting new business to move or form in the state will no doubt have a positive impact on job growth."

Survey respondents' expectations for occupancy and rent increased across every property type. The investment outlook rose in a majority of the property types, and the statewide outlook was the highest since the survey's inception in 2006. Additionally, private capital is abundant as investors seek the few good products on the market. Overall, the market appears to be improving and will continue to improve at a slow pace over the next year, Becker said.

Despite the positive outlooks in many asset classes, respondents' optimism is tempered by troublesome economic factors, most notably Florida's high unemployment rate of 12 percent. Respondents also relayed fears over federal, state and local budget issues, Becker said.

"Local revenues continue to decline as property values decline, placing a tremendous burden on local budgets. This will require tough decisions by local officials," Becker said.

The outlook for single-family and condominium sales increased slightly this quarter, but Becker said home builders continue to have a negative outlook because financing is difficult to obtain and lower prices in the foreclosure and short-sale market take potential customers away from the new housing market. Unexpectedly, respondents' outlook for investment in residential development increased for both single-family homes and condominiums. Becker said the low cost of fully developed lots provides incentive for investors and developers.

http://news.ufl.edu/2011/02/01/housing-02-11/ 2/1/2011

University of Florida News - Florida's real estate outlook perks up in several areas, UF s... Page 2 of2

Expectations for office and retail occupancy continued to improve. Occupancy expectations in the office sector increased and the outlook for rental rates increased slightly but is still expected to continue lagging inflation, Becker said. In the retail sector, occupancy expectations improved for all property types. Becker said respondents believe occupancy will increase in neighborhood centers and large retail centers.

Accordingly, the investment outlook in retail increased for neighborhood centers while declining for the remaining property types.

Land investment and capital availability also rose this quarter. More respondents believe land is beginning to be priced at levels that support longer-term investment, Becker said, despite the fact that lack of financing for land purchases continues to be a concern. The optimistic outlook for capital availability is due in large part to respondents' belief that future capital availability will increase.

"Respondents believe there is a need to add additional apartment units based on the fundamentals and expect development financing to be available for that sector," Becker said. "Private equity continues to be plentiful for quality core assets and valued-add assets."

Expectations for apartment occupancy and the industrial sector were mostly stable.

The survey is the most extensive of Florida professional real estate analysts and investors conducted on an ongoing basis. The total number of participants in the current survey is 271, who represent 13 urban regions and up to 15 property types.

-30-

Credits

Writer Milenko Martinovich, milenko.martinovich@warrington.LJfl.edll

Source Timothy Becker, tim.becker@warrington.ufLedu, 352-273-1827

Related Posts

• Real Estate Survey • Multimedia: Florida's real estate Qlltlook perks up in several areas. UF ~llJYeY finds

http://news.ufl.edu/2011/02/0 l/housing-02-11/ 2/1/2011

Tl,,:, (01/Y ,, t,_,, Y'"" l)fcC'.,Ofl-.11, flOllWll\,[1(,i·c1dl use• t>nly. You~,,,, <irdL:r pr~s«;>ldti<Jn­rcild',' mp,~, for ,1,srrmutH)n tn your u,:1eagt«c,;, ,·l,ent> or <.,,,;tomr,,.-, here 01· us~ th,; 'P.c" ,·int;;" loul lr1s>l <\l>Uc'<.'r~ c,L,ovc, uri drnclc. Order a re rint of this article now.

Printed on page C6

Citrus Could Face New Threat

Growers and scientists don't yet know how serious a problem fungal disease poses.

By Kevin ll111(lj'ard

THE LEDGER

Published: Tuesday, February 8, 2011 at 10:58 p.m.

HAINES CITY I One can't blame Florida citrus

growers for feeling they're in the cross hairs for

every citrus disease on the planet.

The U.S. Department of Agriculture last month

confirmed the first Florida cases of a fungal

disease called sweet orange scab.

It was on a grapefruit tree in a North Lakeland

campground and on residential citrus trees in

Sarasota and Broward counties.

The scab disease has not surfaced yet in a

commercial grove in Florida.

NATALlA PERES I GULF COAST RESEARCH

AND EDUCATION

FRUIT INFECTED with sweet orange scab

disease is blemished and can't be sold as fresh

fruit.

The USDA confirmed the first U.S. cases of the problem in commercial groves in

Texas and Louisiana in August and later in Mississippi and Arizona.

The discovery came less than a year after the first Florida outbreak of citrus black

spot, another fungal disease, and a little more than five years after the first confirmed

case of citrus greening, a deadly bacterial disease.

But the possibility remains that despite a positive result from a reliable genetic test

known as "PCR" (for polymerase chain reaction), whatever surfaced in Florida and

Texas may still not be classic sweet orange scab, said Pete Timmer, professor

emeritus of plant pathology at the Citrus Research and Education Center in Lake

Alfred.

The test is widely used in genetic mapping, DNA fingerprinting and plant and animal

disease diagnostics.

"There's something very wrong here," Timmer said. "There's no reason to think the

PCR is wrong, but somehow it is."

Whether the tested fruit has sweet orange scab or some new fungal disease, it still

poses a problem for the fresh citrus business in Florida, he added.

Sweet orange scab, along with a cousin that's already in Florida and commonly called

just "citrus scab," leave lesions on the fruit rind, rendering it impossible to sell on the

fresh market.

Timmer, who studied the disease after its outbreak in South America, went to Texas

late last year at the request of a state growers' group, he said.

Page 1 of2

http://www.theledger.com/apps/pbcs.dll/article? AID=/20110208/NEWS/102085045/1001/... 2/11/2011

When shown samples of infected fruit confirmed by PCR tests, "I looked at it and said, 'That's wind scar,"' Timmer told The Ledger.

Orange scab symptoms can get confused with wind scar because the symptomatic tan lesions are much flatter than the raised lesions of citrus scab and other fungal diseases, he said.

The tan areas on the Texas citrus did not appear to be orange scab lesions, Timmer said, and he could detect no other classic symptoms of the disease.

Successfully culturing the fungus in the lab from a piece of PCR-positive fruit would confirm the orange scab diagnosis, Timmer said. But scientists in Texas and Florida have not been able to do that so far.

Megan Dewdney, another pathologist at the Lake Alfred center, said she shared

Timmer's reservations.

Dewdney has been trying to culture the fungus in her lab, she said, but can't find

citrus fruit with a confirmed infection by PCR.

The Lakeland grapefruit tree no longer has fruit, Timmer said.

The USDA is surveying areas around all three Florida finds and will set up a

quarantine area, as it did in the other states, said Larry Hawkins, a USDA

spokesman.

The agency does not share Timmer's reservations.

"There is no question that the samples found in Florida have the disease pathogen,"

he said.

An orange scab quarantine would allow shipments of fruit from the area if they are

treated and packed at a commercial citrus packinghouse, Hawkins said. No fruit from

residential trees can be shipped.

The fungus attacks fruit in the first six to eight weeks of development, Timmer said.

There is no evidence mature fruit can spread the disease.

The quarantine will not damage commercial citrus growers economically since they

can sell their fruit anywhere in the U.S. through normal packinghouse channels, said

Richard Kinney, chief executive at Florida Citrus·Packers in Lakeland, the trade

group for fresh fruit packinghouses.

But it could affect fresh Florida citrus exports to Europe and Japan, major customers

for the state's grapefruit, if those countries impose restrictions on shipments from

infected areas, Kinney said.

"We're not too concerned yet," he said. "Our production practices haven't change. We

haven't established it's in commercial channels."

[ Kevin Bouffard can be reached at kevin.bouffard@theledger.com or at 863-422-

6800. Read more on Florida citrus on his Facebook page, Florida Citrus Witness,

http://bit.ly/baxWuU.]

This story appeared in print on page C6

Page 2 of2

Copyright© 2011 TheLedger.com - All rights

reserved. Restricted use only.

http://www.theledger.com/apps/pbcs.dll/article? AID=/20110208/NEWS/102085045/1001/... 2/11/201 I

Has the Industrialized World Reached Peak Travel? I Smart Journalism. Real Solutions .... Page I of6

Miller-McCune SMART JOURNALISM. REAL SOLUTIONS.

January 1, 2011

A Road Less Traveled Passenger travel in the industrialized world has been stagnant for nearly a decade, researchers say.

By Melinda Bums

Amid the planes, trains and automobiles of the holiday season comes a surprising finding from transportation scientists: Passenger travel, which grew rapidly in the 20th century, appears to have peaked in much of the developed world.

A study of eight industrialized countries, including the United States, shows that seemingly inexorable trends - ever more people, more cars and more driving - came to a halt in the early years of the 21st century, well before the recent escalation in fuel prices. It could be a sign, researchers said, that the demand for travel and the demand for car ownership in those countries has reached a saturation point.

"With talk of 'peak oil,' why not the possibility of 'peak travel' when a clear plateau has been reached?" asked co-author Lee Schipper, who shares his time between Global Metro Studies at the University of California, Berkeley, and the Precourt Energy Efficiency Center at Stanford University.

Schipper and Adam Millard-Ball, a doctoral candidate at Stanford University, looked at the gross domestic product per capita of the United States, Canada, Sweden, France, Germany, the United Kingdom, Japan and Australia from 1970 through 2008 and plotted it against the distance traveled per capita per year in each country by car, pickup truck, bus, train, light rail, streetcar, subway and plane.

Researchers report that passenger travel in the industrialized world has begun to see a decline in this century. (Lonnie Bradley/ stockxchange.com)

Beginning in 1970, they found, motorized passenger travel grew rapidly in all eight countries as greater prosperity led to rising car ownership and domestic air travel. But after 2000, when per capita GDP in the U.S. hit $37,000, passenger travel stopped growing here. In the other countries, passenger travel leveled out at a GDP of$25,000 to $30,000 per capita.

"A major factor behind increasing energy use and carbon dioxide emissions since the 1970s has ceased its rise, at least for the time being," Schipper said. "If it is a truly permanent change, then future projections of carbon dioxide emissions and fuel demand should be scaled back."

The peak travel study runs counter to government models predicting steady growth in travel demand well beyond 2030. Schipper and Millard-Ball say that their own findings are "suggestive rather than conclusive." They speculate that highway gridlock, parking problems, high prices at the gas pump and an aging population that doesn't commute may be contributing to peak travel. People already spend an average 1.1 hours per day traveling from one place to another, and driving speeds can't get much faster.

"You can't pronounce one single factor for the slowdown in travel," Schipper said. "The most important thing will be to see what happens as the economy recovers. Everybody expects oil prices to go up. But with new fuel economy standards, more hybrids and higher oil prices competing against a recovery in which people buy old-fashioned gas-guzzlers, the question is, what is going to win?"

Most of the eight countries in the study have experienced declines in miles traveled by car per capita in recent years. The U.S. appears to have peaked at an annual 8,100 miles by car per capita, and Japan is holding steady at 2,500 miles.

There are signs of saturation in vehicle ownership, too, at about 700 cars per 1,000 people in the U.S. - more cars than licensed drivers - and about 500 cars per 1,000 people in Japan and most of the European countries. Car ownership has declined in the U.S. since 2007 because of the recession.

"You get to a point where everybody who could possibly drive, drives," Schipper said.

Finally, researchers found, the energy intensity of cars and light trucks has declined in all eight countries since 1990. (Energy intensity is the amount of fuel expended per passenger-mile, or one passenger moving one mile.)

At the same time, though, vehicle occupancy declined, as more and more people drove alone. In the U.S, the average vehicle occupancy is 1.7 people per car, down from 2.2 in 1970, reflecting a likely shift away from carpooling. So, for example, in 2007, car travel in the U.S., with two­thirds of the seats empty, was more energy-intensive than U.S. air travel, because the planes were more than 80 percent full, on average.

http://www.miller-mccune.com/environment/a-road-less-traveled-26524/ 1/31/2011

Has the Industrialized World Reached Peak Travel? I Smart Journalism. Real Solutions .... Page 2 of6

There's no question that the task ofreducing carbon dioxide emissions in transportation is daunting. According to one estimate, vehicle travel in the U.S. would have to fall by half by 2050, or fuel efficiency would have to improve to 130 miles per gallon, orbiofuels would have to make up most of the fuels on the market to avoid the worst impacts of climate change.

And people still like to buy big, heavy cars that can accelerate to 60 mph in less than four seconds. In a separate study this year, Schipper found that technological improvements to vehicle efficiency drove down fuel use per unit of horsepower by 50 percent in recent years, even as most of the potential fuel savings were wiped out by consumer's preferences for larger, more powerful vehicles, particularly in the U.S.

Still, peak travel holds a glimmer of collateral benefits for the industrialized world. Higher prices at the pump, including higher fuel taxes, could help stimulate the manufacture of smaller, less powerful cars, change people's driving habits and foment a renaissance in walking and bicycling, reducing carbon dioxide emissions below their present levels, Schipper said.

The growth of motorized travel in China, India and Brazil will reduce the overall impact of gains in the industrialized world, but they are still gains, he said. The average American car on the road today uses a third less fuel per mile than in 1973, and 20 percent less than in 1981, he said. For European cars, the savings is between 20 percent and 25 percent.

Traffic is paralyzed everywhere, and that will be an obstacle to motorization in the developing world in the end, Schipper said.

"My basic thesis is, 'There ain't room on the road,"' he said. "You can't move in Jakarta or Bangkok or any large city in Latin America or in any city in the wealthy part of China. I think Manila takes the prize. Yes, fuel economy is really important, and yes, hybrid cars will help. But even a car that generates no CO2 still generates a traffic problem.

"Sadly, what is going to restrain car use the most is that you can't move."

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linguinee 4 weeks ago

Peak oil, peak traffic -- we're definitely at some sort of summit! I'd like to add another pinnacle to the proliferating peaks of limitation: Peak

homogeneity.

What's the use of travelling anywhere when everywhere is the same? Same strip malls, big box stores, culture, etc. You get in a car, endure

onerous expense, congestion, parking problems to arrive at -- surprise! -- the place that you left.

Makes you want to stay at home. Seems like others agree.

6 Clem Equality Guttata and 6 more liked this r·L1k-;-1 Reply!

Simon 3 weeks ago

Cars don't scale because they require too much space. Building more roads takes more space, which requires more miles driven, which requires

http://www.miller-mccune.com/environment/a-road-less-traveled-26524/ 1/31/2011

A Physicist Turns the City Into an Equation - NYTimes.com

<!!IJ r ~t\tdfork lhn~.s. Reprints .... This copy is for your personal, noncommercial use only. You can order presentation-ready copies for distribution to your colleagues, clients or customers here or use the "Reprints" tool U1al appears next to any article. Visit www.nytreprints.com for samples and additional information. Order a reprint of this article now.

December 17, 201 0

A Physicist Solves the City By JONAH LEHRER

Page 1 of 11

FROM DIRECTOR

TERRENC MALICK

Geoffrey West doesn't eat lunch. His doctor says he has a mild allergy to food; meals make

him sleepy and nauseated. When West is working - when he's staring at some scribbled

equations on scratch paper or gazing out his office window at the high desert in New Mexico -

he subsists on black tea and nuts. His gray hair is tousled, and his beard has the longish look of

neglect. It's clear that West regards the mundane needs of everyday life - trimming the

whiskers, say - as little more than a set of annoying distractions, drawing him away from a

much more interesting set of problems. Sometimes West can seemjealous of his computer, this

silent machine with no hungers or moods. All it needs is a power cord.

For West, the world is always most compelling at its most abstract. As a theoretical physicist in

search of fundamental laws, he likes to compare his work to that of Kepler, Galileo and Newton.

"I've always wanted to find the rules that govern everything," he says. "It's amazing that such

rules exist. It's even more amazing that we can find them."

But the 70-year-old West, who grew up in Somerset, England, is no longer trying to solve the

physical universe; he's not interested in deep space or string theory. Although West worked for

decades as a physicist at Stanford University and Los Alamos National Laboratory, he started

thinking about leaving the field after the financing for the Texas superconducting supercollider

was canceled by Congress in 1993. West, however, wasn't ready to retire, and so he began

searching for subjects that needed his skill set.

Eventually he settled on cities: the urban jungle looked chaotic - all those taxi horns and traffic

jams - but perhaps it might be found to obey a short list of universal rules. "We spend all this

time thinking about cities in terms of their local details, their restaurants and museums and

weather," West says. "I had this hunch that there was something more, that every city was also

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shaped by a set of hidden laws."

And so West set out to solve the City. As he points out, this is an intellectual problem with

immense practical implications. Urban population growth is the great theme of modern life,

one that's unfolding all across the world, from the factory boomtowns of Southern China to the

sprawlingfavelas of Rio de Janeiro. As a result, for the first time in history, the majority of

human beings live in urban areas. (The numbers of city dwellers are far higher in developed

countries - the United States, for instance, is 82 percent urbanized.) Furthermore, the pace of

urbanization is accelerating as people all over the world flee the countryside and flock to the crowded street.

This relentless urban growth has led to a renewed interest in cities in academia and in

government. In February 2009, President Obama established the first White House Office of

Urban Affairs, which has been told to develop a "policy agenda for urban America." Meanwhile,

new perspectives have come to the field of urban studies. Macroeconomists, for instance, have

focused on the role of cities in driving gross domestic product and improving living standards,

while psychologists have investigated the impact of city life on self-control and short-term

memory. Even architects are moving into the area: Rem Koolhaas, for one, has argued that

architects have become so obsessed with pretty buildings that they've neglected the vital spaces between them.

But West wasn't satisfied with any of these approaches. He didn't want to be constrained by the

old methods of social science, and he had little patience for the unconstrained speculations of

architects. (West considers urban theory to be a field without principles, comparing it to

physics before Kepler pioneered the laws of planetary motion in the 171:h century.) Instead,

West wanted to begin with a blank page, to study cities as if they had never been studied before.

He was tired of urban theory - he wanted to invent urban science.

For West, this first meant trying to gather as much urban data as possible. Along with Luis

Bettencourt, another theoretical physicist who had abandoned conventional physics, and a

team of disparate researchers, West began scouring libraries and government Web sites for

relevant statistics. The scientists downloaded huge files from the Census Bureau, learned about

the intricacies of German infrastructure and bought a thick and expensive almanac featuring

the provincial cities of China. (Unfortunately, the book was in Mandarin.) They looked at a

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dizzying array of variables, from the total amount of electrical wire in Frankfurt to the number

of college graduates in Boise. They amassed stats on gas stations and personal income, flu

outbreaks and homicides, coffee shops and the walking speed of pedestrians.

After two years of analysis, West and Bettencourt discovered that all of these urban variables

could be described by a few exquisitely simple equations. For example, if they know the

population of a metropolitan area in a given country, they can estimate, with approximately 85 percent accuracy, its average income and the dimensions of its sewer system. These are the

laws, they say, that automatically emerge whenever people "agglomerate," cramming

themselves into apartment buildings and subway cars. It doesn't matter if the place is

Manhattan or Manhattan, Kan.: the urban patterns remain the same. West isn't shy about

describing the magnitude of this accomplishment. "What we found are the constants that

describe every city," he says. "I can take these laws and make precise predictions about the

number of violent crimes and the surface area of roads in a city in Japan with 200,000 people. I

don't know anything about this city or even where it is or its history, but I can tell you all about

it. And the reason I can do that is because every city is really the same." After a pause, as if

reflecting on his hyperbole, West adds: "Look, we all know that every city is unique. That's all

we talk about when we talk about cities, those things that make New York different from L.A.,

or Tokyo different from Albuquerque. But focusing on those differences misses the point. Sure,

there are differences, but different from what? We've found the what."

There is something deeply strange about thinking of the metropolis in such abstract terms. We

usually describe cities, after all, as local entities defined by geography and history. New Orleans

isn't a generic place of 336,644 people. It's the bayou and Katrina and Cajun cuisine. New York

isn'tjust another city. It's a former Dutch fur-trading settlement, the center of the finance

industry and home to the Yankees. And yet, West insists, those facts are mere details,

interesting anecdotes that don't explain very much. The only way to really understand the city,

West says, is to understand its deep structure, its defining patterns, which will show us whether

a metropolis will flourish or fall apart. We can't make our cities work better until we know how

they work. And, West says, he knows how they work.

West has been drawn to different fields before. In 1997, less than five years after he

transitioned away from high-energy physics, he published one of the most contentious and

influential papers in modern biology. (The research, which appeared in Science, has been cited

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more than 1,500 times.) The last line of the paper summarizes the sweep of its ambition, as

West and his co-authors assert that they have just solved "the single most pervasive theme

underlying all biological diversity," showing how the most vital facts about animals - heart

rate, size, caloric needs - are interrelated in unexpected ways.

The mathematical equations that West and his colleagues devised were inspired by the earlier

findings of Max Kleiber. In the early 1930s, when Kleiber was a biologist working in the animal­

husbandry department at the University of California, Davis, he noticed that the sprawlingly

diverse animal kingdom could be characterized by a simple mathematical relationship, in which

the metabolic rate of a creature is equal to its mass taken to the three-fourths power. This

ubiquitous principle had some significant implications, because it showed that larger species

need less energy per pound of flesh than smaller ones. For instance, while an elephant is 10,000

times the size of a guinea pig, it needs only 1,000 times as much energy. Other scientists soon

found more than 70 such related laws, defined by what are known as "sublinear" equations. It doesn't matter what the animal looks like or where it lives or how it evolved - the math almost

always works.

West's insight was that these strange patterns are caused by our internal infrastructure - the

plumbing that makes life possible. By translating these biological designs into mathematics,

West and his co-authors were able to explain the existence of Kleiber's scaling laws. "I can't tell

you how satisfying this was," West says. "Sometimes, I look out at nature and I think,

Everything here is obeying my conjecture. It's a wonderfully narcissistic feeling."

Not every biologist was persuaded, however. In fact, West's paper in Science ignited a flurry of

rebuttals, in which researchers pointed out all the species that violated the math. West can

barely hide his impatience with what he regards as quibbles. "There are always going to be

people who say, 'What about the crayfish?'" he says. "Well, what about it? Every fundamental

law has exceptions. But you still need the law or else all you have is observations that don't

make sense. And that's not science. That's just taking notes." For West, arguments over the

details of crustaceans were a sure sign that it was time to move on. And so, in 2002, he began to

think seriously about cities.

The correspondence was obvious to West: he saw the metropolis as a sprawling organism,

similarly defined by its infrastructure. (The boulevard was like a blood vessel, the back alley a

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capillary.) This implied that the real purpose of cities, and the reason cities keep on growing, is

their ability to create massive economies of scale, just as big animals do. After analyzing the

first sets of city data - the physicists began with infrastructure and consumption statistics -

they concluded that cities looked a lot like elephants. In city after city, the indicators of urban

"metabolism," like the number of gas stations or the total surface area of roads, showed that

when a city doubles in size, it requires an increase in resources of only 85 percent.

This straightforward observation has some surprising implications. It suggests, for instance,

that modern cities are the real centers of sustainability. According to the data, people who live

in densely populated places require less heat in the winter and need fewer miles of asphalt per

capita. (A recent analysis by economists at Harvard and U.C.L.A. demonstrated that the average

Manhattanite emits 14,127 fewer pounds of carbon dioxide annually than someone living in the

New York suburbs.) Small communities might look green, but they consume a disproportionate

amount of everything. As a result, West argues, creating a more sustainable society will require

our big cities to get even bigger. We need more megalopolises.

But a city is not just a frugal elephant; biological equations can't entirely explain the growth of

urban areas. While the first settlements in Mesopotamia might have helped people conserve

scarce resources - irrigation networks meant more water for everyone - the concept of the city

spread for an entirely different reason. "In retrospect, I was quite stupid," West says. He was so

excited by the parallels between cities and living things that he "didn't pay enough attention to

the ways in which urban areas and organisms are completely different."

What Bettencourt and West failed to appreciate, at least at first, was that the value of modern

cities has little to do with energy efficiency. As West puts it, "Nobody moves to New York to

save money on their gas bill." Why, then, do we put up with the indignities of the city? Why do

we accept the failing schools and overpriced apartments, the bedbugs and the traffic?

In essence, they arrive at the sensible conclusion that cities are valuable because they facilitate

human interactions, as people crammed into a few square miles exchange ideas and start

collaborations. "If you ask people why they move to the city, they always give the same reasons,"

West says. "They've come to get a job or follow their friends or to be at the center of a scene.

That's why we pay the high rent. Cities are all about the people, not the infrastructure."

It's when West switches the conversation from infrastructure to people that he brings up the

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work of Jane Jacobs, the urban activist and author of "The Death and Life of Great American

Cities." Jacobs was a fierce advocate for the preservation of small-scale neighborhoods, like

Greenwich Village and the North End in Boston. The value of such urban areas, she said, is that

they facilitate the free flow of information between city dwellers. To illustrate her point, Jacobs

described her local stretch of Hudson Street in the Village. She compared the crowded sidewalk

to a spontaneous "ballet," filled with people from different walks oflife. School kids on the

stoops, gossiping homemakers, "business lunchers" on their way back to the office. While urban

planners had long derided such neighborhoods for their inefficiencies - that's why Robert

Moses, the "master builder" of New York, wanted to build an eight-lane elevated highway

through SoHo and the Village - Jacobs insisted that these casual exchanges were essential. She

saw the city not as a mass of buildings but rather as a vessel of empty spaces, in which people

interacted with other people. The city wasn't a skyline - it was a dance.

If West's basic idea was familiar, however, the evidence he provided for it was anything but. The

challenge for Bettencourt and West was finding a way to quantify urban interactions. As usual,

they began with reams of statistics. The first data set they analyzed was on the economic

productivity of American cities, and it quickly became clear that their working hypothesis - like

elephants, cities become more efficient as they get bigger - was profoundly incomplete.

According to the data, whenever a city doubles in size, every measure of economic activity, from

construction spending to the amount of bank deposits, increases by approximately 15 percent

per capita. It doesn't matter how big the city is; the law remains the same. "This remarkable

equation is why people move to the big city," West says. "Because you can take the same person,

and if you just move them to a city that's twice as big, then all of a sudden they'll do 15 percent

more of everything that we can measure." While Jacobs could only speculate on the value of our

urban interactions, West insists that he has found a way to "scientifically confirm" her

conjectures. "One of my favorite compliments is when people come up to me and say, 'You have

done what Jane Jacobs would have done, if only she could do mathematics,'" West says. "What

the data clearly shows, and what she was clever enough to anticipate, is that when people come

together, they become much more productive."

West illustrates the same concept by describing the Santa Fe Institute, an interdisciplinary

research organization, where he and Bettencourt work. The institute itself is a sprawl of

common areas, old couches and tiny offices; the coffee room is always the most crowded place.

"S.F.I. is all about the chance encounters," West says. "There are few planned meetings, just lots

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of unplanned conversations. It's like a little city that way." The previous evening, West and I ran

into the novelist Cormac McCarthy at the institute, where McCarthy often works. The physicist

and the novelist ended up talking about Antarctic icefish, the editing process and convergent

evolution for 45 minutes. Of course, these interpersonal collisions - the human friction of a

crowded space - can also feel unpleasant. We don't always want to talk with strangers on the

subway or jostle with people on the sidewalk. West admits that all successful cities are a little

uncomfortable. He describes the purpose of urban planning as finding a way to minimize our distress while maximizing our interactions. The residents of Hudson Street, after all, didn't

seem to mind mingling with one another on the sidewalk. As Jacobs pointed out, the layout of

her Manhattan neighborhood - the short blocks, the mixed-use zoning, the density of

brownstones - made it easier to cope with the strain of the metropolis. It's fitting that it's called the Village.

In recent decades, though, many of the fastest-growing cities in America, like Phoenix and

Riverside, Calif., have given us a very different urban model. These places have traded away

public spaces for affordable single-family homes, attracting working-class families who want

their own white picket fences. West and Bettencourt point out, however, that cheap suburban

comforts are associated with poor performance on a variety of urban metrics. Phoenix, for

instance, has been characterized by below-average levels of income and innovation (as

measured by the production of patents) for the last 40 years. "When you look at some of these

fast-growing cities, they look like tumors on the landscape," West says, with typical bombast.

"They have these extreme levels of growth, but it's not sustainable growth." According to the

physicists, the trade-off is inevitable. The same sidewalks that lead to "knowledge trading" also lead to cockroaches.

Consider the data: When Bettencourt and West analyzed the negative variables of urban life,

like crime and disease, they discovered that the exact same mathematical equation applied.

After a city doubles in size, it also experiences a 15 percent per capita increase in violent crimes,

traffic and AIDS cases. (Of course, these trends are only true in general. Some cities can bend

the equations with additional cops or strict pollution regulations.) "What this tells you is that

you can't get the economic growth without a parallel growth in the spread of things we don't

want," Bettencourt says. "When you double the population, everything that's related to the

social network goes up by the same percentage."

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West and Bettencourt refer to this phenomenon as "superlinear scaling," which is a fancy way of

describing the increased output of people living in big cities. When a superlinear equation is

graphed, it looks like the start of a roller coaster, climbing into the sky. The steep slope emerges

from the positive feedback loop of urban life - a growing city makes everyone in that city more

productive, which encourages more people to move to the city, and so on. According to West,

these superlinear patterns demonstrate why cities are one of the single most important

inventions in human history. They are the idea, he says, that enabled our economic potential and unleashed our ingenuity. "When we started living in cities, we did something that had

never happened before in the history of life," West says. "We broke away from the equations of

biology, all of which are sublinear. Every other creature gets slower as it gets bigger. That's why

the elephant plods along. But in cities, the opposite happens. As cities get bigger, everything

starts accelerating. There is no equivalent for this in nature. It would be like finding an elephant that's proportionally faster than a mouse."

There is, of course, a very good reason that animals slow down with size: All that mass

requires energy. Because the elephant has to eat so much to feed itself, it can't afford to run

around like a little rodent. But the superlinear growth of cities comes with no such inherent

constraints. Instead, the urban equations predict a world of ever-increasing resource

consumption, as the expansion of cities fuels the expansion of economies. In fact, the societal

consumption driven by the process of urbanization - our collective desire for iPads,

Frappuccinos and the latest fashions - more than outweighs the ecological benefits oflocal mass transit.

West illustrates the problem by translating human life into watts. "A human being at rest runs

on 90 watts," he says. "That's how much power you need just to lie down. And if you're a

hunter-gatherer and you live in the Amazon, you'll need about 250 watts. That's how much

energy it takes to run about and find food. So how much energy does our lifestyle [in America]

require? Well, when you add up all our calories and then you add up the energy needed to run

the computer and the air-conditioner, you get an incredibly large number, somewhere around

11,000 watts. Now you can ask yourself: What kind of animal requires 11,000 watts to live? And

what you find is that we have created a lifestyle where we need more watts than a blue whale. We require more energy than the biggest animal that has ever existed. That is why our lifestyle

is unsustainable. We can't have seven billion blue whales on this planet. It's not even clear that we can afford to have 300 million blue whales."

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The historian Lewis Mumford described the rise of the megalopolis as "the last stage in the

classical cycle of civilization," which would end with "complete disruption and downfall." In his

more pessimistic moods, West seems to agree: he knows that nothing can trend upward forever.

In fact, West sees human history as defined by this constant tension between expansion and

scarcity, between the relentless growth made possible by cities and the limited resources that

hold our growth back. "The only thing that stops the superlinear equations is when we run out

of something we need," West says. "And so the growth slows down. If nothing else changes, the system will eventually start to collapse."

How do we avoid this bleak fate? Constant innovation. After a resource is exhausted, we are

forced to exploit a new resource, if only to sustain our superlinear growth. West cites a long list

of breakthroughs to illustrate this historical pattern, from the discovery of the steam engine to

the invention of the Internet. "These major innovations completely changed the way society

operates," West says. "It's like we're on the edge of a cliff, about to run out of something, and

then we find a new way of creating wealth. That means we can start to climb again."

But the escape is only temporary, as every innovation eventually leads to new shortages. We

clear-cut forests, and so we turn to oil; once we exhaust our fossil-fuel reserves, we'll start

driving electric cars, at least until we run out of lithium. This helps explain why West describes

cities as the only solution to the problem of cities. Although urbanization has generated a

seemingly impossible amount of economic growth, it has also inspired the innovations that allow the growth to continue.

There is a serious complication to this triumphant narrative of cliff edges and creativity,

however. Because our lifestyle has become so expensive to maintain, every new resource now

becomes exhausted at a faster rate. This means that the cycle of innovations has to constantly

accelerate, with each breakthrough providing a shorter reprieve. The end result is that cities

aren't just increasing the pace of life; they are also increasing the pace at which life changes.

"It's like being on a treadmill that keeps on getting faster," West says. "We used to get a big

revolution every few thousand years. And then it took us a century to go from the steam engine

to the internal-combustion engine. Now we're down to about 15 years between big innovations. What this means is that, for the first time ever, people are living through multiple revolutions.

And this all comes from cities. Once we started to urbanize, we put ourselves on this treadmill.

We traded away stability for growth. And growth requires change."

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While listening to West talk about cities, it's easy to forget that his confident

pronouncements are mere correlations, and that his statistics can only hint at possible

explanations. Not surprisingly, many urban theorists disagree with West's conclusions. Some

resent the implication that future urban research should revolve around a few abstract

mathematical laws. Other theorists, like Joel Kotkin, a fellow in urban futures at Chapman

University, in Orange, Calif., argue that the working model of Bettencourt and West is already

obsolete and fails to explain recent trends. "In the last decade, suburbs have produced six times

as many jobs," Kotkin says. And these aren't just unskilled service jobs. Kotkin says the centers

of American innovation are now low-density metropolitan areas like Silicon Valley and Raleigh­

Durham, N.C. "For a supposedly complete theory'' of cities, Kotkin says, "this work fails to

explain a lot of what's happening right now."

The theoretical physicists aren't discouraged by these critiques. While they admit their

equations are imperfect, they insist the work remains a necessary first draft. "When Kepler

found the laws that govern planetary motion, he didn't get the laws exactly right," West says.

"But the laws were still good enough to inspire Newton." In the meantime, West and

Bettencourt continue to search for new statistics (they have just received a data set from the

I.R.S.) that they hope to feed back into the model. Nevertheless, West says they believe that

their essential theory - those superlinear and sublinear laws - will remain intact. The math is scientifically sound.

In fact, West is so satisfied with his urban research that he's already becoming a little restless.

Recently, he and Bettencourt, led by this impatience, began exploring yet another subject: the

corporation. At first glance, cities and companies look very similar. They're both large

agglomerations of people, interacting in a well-defined physical space. They contain

infrastructure and human capital; the mayor is like a C.E.O.

But it turns out that cities and companies differ in a very fundamental regard: cities almost

never die, while companies are extremely ephemeral. As West notes, Hurricane Katrina

couldn't wipe out New Orleans, and a nuclear bomb did not erase Hiroshima from the map. In

contrast, where are Pan Am and Enron today? The modern corporation has an average life span of 40 to 50 years.

This raises the obvious question: Why are corporations so fleeting? After buying data on more

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than 23,000 publicly traded companies, Bettencourt and West discovered that corporate

productivity, unlike urban productivity, was entirely sublinear. As the number of employees

grows, the amount of profit per employee shrinks. West gets giddy when he shows me the linear

regression charts. "Look at this bloody plot," he says. "It's ridiculous how well the points line

up." The graph reflects the bleak reality of corporate growth, in which efficiencies of scale are

almost always outweighed by the burdens of bureaucracy. "When a company starts out, it's all

about the new idea," West says. "And then, if the company gets lucky, the idea takes off. Everybody is happy and rich. But then management starts worrying about the bottom line, and

so all these people are hired to keep track of the paper clips. This is the beginning of the end."

The danger, West says, is that the inevitable decline in profit per employee makes large

companies increasingly vulnerable to market volatility. Since the company now has to support

an expensive staff - overhead costs increase with size - even a minor disturbance can lead to

significant losses. As West puts it, "Companies are killed by their need to keep on getting

bigger."

For West, the impermanence of the corporation illuminates the real strength of the metropolis.

Unlike companies, which are managed in a top-down fashion by a team of highly paid

executives, cities are unruly places, largely immune to the desires of politicians and planners.

"Think about how powerless a mayor is," West says. "They can't tell people where to live or

what to do or who to talk to. Cities can't be managed, and that's what keeps them so vibrant.

They're just these insane masses of people, bumping into each other and maybe sharing an idea

or two. It's the freedom of the city that keeps it alive."

Jonah Lehrer is the author, most recently, of "How We Decide."

http://www.nytimes.com/2010/l2/l9/magazine/l9Urban_ West-t.html?emc=etal&pagew... 12/20/2010

Control the Masses: Andres Duany - Architect Magazine Page 1 of 4

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THE NEXT ','ORMAL

Control the Masses Posted on: Janrniry J. 201 I From: ARCHTTECT January 201 I

Andres Duany is souring on what he sees as excessive, obstructionist community engagement in urban planning. At an event last year, the co-founder of New Urbanism complained of "an absolute orgy of public process" In the U.S.: "Basically, we can't get anything done." Is there a place anymore for bottom-up planning?

Bv: Diana Lind

Credit: Noah Kalina

Public engagement in the community planning process is a relatively new phenomenon. Is it good evidence of American democracy in action or of public skepticism about the planning profession? Urban planning with public participation has not always existed, nor has it been deemed necessary. Even 50 years

http://www.architectmagazine.com/planning/control-the-masses-andres-duany.aspx?printe... 1/12/2011

Control the Masses: Andres Duany - Architect Magazine Page 2 of 4

ago, planners were still considered demigods. They had reformed cities to be beautiful, healthier, cleaner, and more stable. Planners had done more for public health than doctors. By making lives much better, they had come to be trusted by the people.

For example, take John Nolen, whose small office delivered hundreds of city plans in the 1920s. How did he do so much? San Diego is an example. He visited the city for a couple of weeks, spoke to whomever he needed to, then got back to Boston, prepared the documents, and mailed them back to San Diego, and ... it was implemented over the years.

In the 1950s, planners were still considered so trustworthy that when they had that towers-in-the-park idea, they could flick their hand and get an entire neighborhood demolished. But those inner-city plans became socially toxic almost immediately, and as the suburban promise was betrayed, confidence in top-down planning evaporated.

Participatory planning rose out of that disappointment. It wasn't just the result of Jane Jacobs versus Robert Moses-it was categorical, a nationwide insurgency by people who had never heard of those two.

The Next Normal

Introcluction: The Nex_t Normal

Your Practice Isn't Perfect •Adda Layer • E_mbrace the c:)laJ1_g~ • Listen to Them

YQ\I_Dream of a Dict!lt_o_r • The Grass Isn't Always Gn,,ener • Control the Masses • Start a Revoli1tion

Your Smart Buildings Aren't That Smart • find YP11f Inner Scientist • Don'tfight Nature • l_)o Morn With Less

Y Q\I r Clie11Js_ Are Really Old • Assume They Want to Have Fun • Assume They Want Your Help

Your Architecture Is a Commoclity • Prove Your Design Has Value • BIM Well With Others • Watch Your Back

You Can Do Better

http://www.architectmagazine.com/planning/control-the-masses-andres-duany.aspx?printe... 1/12/2011

Control the Masses: Andres Duany - Architect Magazine Page 3 of 4

The Congress for the New Urbanism has popularized the charrette as a process. Where does it fit into the range of civic engagement? Bottom-up avoids the big mistakes of top-down planning, but it is quite inefficient. New Urbanism merges the virtues of top-down and bottom-up planning, combining the principles of its charter and the participation through the charrette. This is something new. The planner adjusting principles to local circumstances is a system that has now worked very well indeed hundreds of times.

But we seem to be reaching a tipping point now where municipalities will give up on engaging the public because it's gotten too time-consuming and too expensive. We were involved in Miami 21, a citywide charrette. That process was bottom-up and required convincing everyone concerned. It cost millions of dollars and took four years. It was a magnificent result and the most comprehensive such effort by any big city, but it will probably not be repeated. The economy has changed all that.

While the New Urbanist system may work well, it is also expensive. To mount a charrette requires those rare, highly skilled professionals that can speak to regular folk, think clearly, and draw quickly. Charrettes can cost $300,000. We need to get the cost down to $50,000.

The other complaint you've voiced is that NIMBYism has become too obstructionist. Is there a better way to get public participation in the design process without a project falling prey to local interests? Conventional public participation makes the mistake of privileging the neighbors, the people who live within a half-mile of the given proposal. So it becomes extremely difficult to, say, locate a school or an infill project. While democracy doesn't need a great number of voters to function well, it does require a full cross-section to participate. That is the source of its collective intelligence. You can't confuse neighbors with the community as a whole.

We propose using the jury pool or the phone book to invite a random group, which is then understood to be apart from the self-interested neighbors, just as the developer or the school board are acknowledged as vested interests. The neighbors must be seen as vested interests as well.

But how are municipalities going to be able to make big decisions? If you can't build a bike path or lay a power line that connects to the new solar energy farm, then you can't engage in the 21st century. We have also been developing the concept of subsidiarity, the design of decisions: what issue, by which people, and when.

The region makes decisions about heavy infrastructure, the neighborhood decides about traffic, the block makes decisions about parking, the household makes decisions about its building, and the individual makes decisions about the bedroom. The smallest group at the latest point in time that can competently make a decision-that is subsidiarity. Thus we're evolving participatory planning towards a more intelligent democracy.

A lot of architects are working in China, which doesn't have much of a public process to speak of. Should we copy their model? It's much easier to get things done there. But they're also making terrible mistakes. The outcome of their planning is generally awful and provides evidence that you need some sort of public participation.

But if you want to be cynical about it, the West will benefit from sending over all those irresponsible designers who are screwing up their quality of life. China will become an undesirable place to live. In the future, their best talent will choose to live in San Francisco or Seattle. It is poison-pill planning. The CIA couldn't do better.

http://www.architectmagazine.com/planning/control-the-masses-andres-duany.aspx?printe... 1/12/2011