HomeMy WebLinkAbout7/12/1994� MINUTEnTTACHED
BOARD OF COUNTY COMMISSIONERS
INDIAN RIVER COUNTY, FLORIDA
A G E N D A
REGULAR MEETING
TUESDAY, JULY 12, 1994
9:00 A.M. - VERO BEACH HIGH SCHOOL AUDITORIUM
VERO BEACH HIGH SCHOOL
1707 16TH STREET
VERO BEACH, FLORIDA
COUNTY COMMISSIONERS
John W. Tippin, Chairman (Dist. 4) James E. Chandler, County Administrator
Kenneth R. Macht, Vice Chairman ( Dist. 3 )
Fran B. Adams ( Dist. 1) Charles P. Vitunac, County Attorney
Richard N. Bird (Dist. 5)
Carolyn K. Eggert (Dist. 2) Jeffrey K. Barton, Clerk to the Board
9:00 A. M. 1. CALL TO ORDER
2. INVOCATION - None
3. PLEDGE OF ALLEGIANCE - Comm. John W. Tippin
4. ADDITIONS TO THE AGENDA/ EMERGENCY ITEMS
5. PROCLAMATION AND PRESENTATIONS
None
6. APPROVAL OF MINUTES
A. Regular Meeting of June 14, 1994
B. Regular Meeting of June 21, 1994
7. CONSENT AGENDA
None
B. CONSTITUTIONAL OFFICERS AND
GOVERNMENTAL AGENCIES
None
9:05 a. m. 9. PUBLIC ITEMS
A. PUBLIC DISCUSSION ITEMS
1. An Appeal by Attorney Warren Dill of the
Planning & Zoning Commission's Decision
that Grocery Stores 6 Supermarkets are
Like Uses as Appfied in the Indian River
County Land Development Regulations
(memorandum datid. July 6; 1994)
L-
JUL 12 1994
9. PUBLIC ITEMS (cont'd. ):
A. PUBLIC DISCUSSION ITEMS (cont'd. ):
2. An Appeal by Halvorsen Development Corp.
of a Planning E Zoning Commission Decision
to Deny Site Plan Approval for a 46,560
Sq. Ft. Shopping Center at the Southeast
Corner of S.R. A -I -A & Mooring Line Drive
(memorandum dated July 6, 1994)
B. PUBLIC HEARINGS
None
10. COUNTY ADMINISTRATOR'S MATTERS
None
11. DEPARTMENTAL MATTERS
A. COMMUNITY DEVELOPMENT
None
B. EMERGENCY SERVICES
None
C. GENERAL SERVICES
None
D. LEISURE SERVICES
None
E. OFFICE OF MANAGEMENT AND BUDGET
None
F. PERSONNEL
None
G. PUBLIC WORKS
None
H. UTILITIES
None
12. COUNTY ATTORNEY
None
13. COMMISSIONERS ITEMS
A. CHAIRMAN JOHN W. TIPPIN
13. COMMISSIONERS ITEMS (cont'd. ):
B. VICE CHAIRMAN KENNETH R. MACHT
Land Acquisition Advisory Committee
Recommendation
(memorandum dated July 6, 1994)
C. COMMISSIONER FRAN B. ADAMS
D. COMMISSIONER RICHARD N. BIRD
E. COMMISSIONER CAROLYN K. EGGERT
14. SPECIAL DISTRICTS
A. EMERGENCY SERVICES DISTRICT
None
B. SOLID WASTE DISPOSAL DISTRICT
None
15. ADJOURNMENT
ANYONE WHO MAY WISH TO APPEAL ANY DECISION WHICH MAY BE MADE
AT THIS MEETING WILL NEED TO ENSURE THAT A VERBATIM RECORD OF
THE PROCEEDINGS IS MADE WHICH INCLUDES THE TESTIMONY AND
EVIDENCE UPON WHICH THE APPEAL WILL BE BASED.
ANYONE WHO NEEDS A SPECIAL ACCOMMODATION FOR THIS MEETING MAY
CONTACT THE COUNTY'S AMERICANS WITH DISABILITIES ACT (ADA)
COORDINATOR AT 567-8000 X 408 AT LEAST- 48 HOURS IN ADVANCE OF
MEETING.
JL 12 IP,14
Tuesday, July 12, 1994
The Board of County Commissioners of Indian River County,
Florida, met in Regular Session at the Vero Beach High School
auditorium, Vero Beach, Florida, on Tuesday, July 12, 1994, at 9:00
o'clock a.m. Present were John W. Tippin, Chairman; Kenneth R.
Macht, Vice Chairman; Fran B. Adams; Carolyn K. Eggert; and Richard
N. Bird. Also present were James E. Chandler, County
Administrator; Charles P. Vitunac, County Attorney; and Barbara
Bonnah, Deputy Clerk.
Chairman Tippin called the meeting to order and led the Pledge
of Allegiance to the Flag.
APPROVAL OF MINUTES
The Chairman asked if there were any additions or corrections
to the Minutes of the Regular Meetings of June 14, 1994 or June 21,
1994. There were none.
ON MOTION by Commissioner Eggert, SECONDED by
Commissioner Bird, the Board unanimously approved
the Minutes of the Regular Meetings of 6/14/94 and
6/21/94, as written.
LAND ACQUISITION ADVISORY COIVIlVIIU TEE
Chairman Tippin announced that the Board would consider Item
13-B as the first item of business rather than waiting until the
end of today's meeting.
Commissioner Bird announced a conflict of interest in this
matter and stated he would abstain from any discussion or vote. He
advised that LAAC made a recommendation to the Board of County
Commissioners to reject the Trust For Public Land's counteroffer on
the Korangy property. He explained that his realty firm has a
listing on the Korangy property which is under option to the Trust
For Public Land.
MEMORANDUM OF VOTING CONFLICT FORM 8B IS ON
FILE IN THE OFFICE OF THE CLERK TO THE BOARD
4,a�K FACT (�
July 12, 1994
BOOK
The Board reviewed the following memo dated 7/6/94:
TO: Board of County Commissioners
FROM: Chairman Ren Macht, Chairman -OW
Land Acquisition Advisory Conudittee
DATE: July 6, 1994
SUBJECT: LAAO Motions Made as Recommendations to the
Board of County Commissioners
92 Na- f
ON MOTION by Jay Smith, SECONDED by Robert Schoen, the
Board agreed by a vote. of 9 to 3, Pat Brown, Janice Broda
and Ruth Stanbridge voting in opposition, to recommend that
the Board of County Commissioners reject the Trust for
Public Land's offer of $826,250 for the sale of the Rorangy
Tract.
ON MOTION by Janice Broda, SECONDED by Pat Brown, a
motion was made and rejected, by a vote of 8 to 4, Ruth
Stanbridge, Carolyn Corum, Pat Brown and Janice Broda voting
in favor of the motion, to recommend to the Board of County
Commissioners that they direct staff to hire a review
appraiser.
ON MOTION by Jay Smith, SECONDED by John Morrison, the
Committee agreed by a vote of 7 to 5, Carolyn Corum, Pat
Brown, Robert Swift, Robert Schoen, and Janice Broder voting
in opposition, to recommend to the Board of County
Commissioners that they not enter into the contract
with The Nature Conservancy at this time but to look into
other options.
Thank you for your consideration of the above
recommendations.
ON MOTION by Commissioner Eggert, SECONDED by
Commissioner Macht, the Board by a vote of 4-0,
(Commissioner Bird abstaining) accepted the above
report from the Land Acquisition Advisory Committee.
2
July 12, 1994
APPEAL BY ATTORNEY WARREN DILL OF THE PLANNING &
ZONING COMIVIISSION'S DECISION THAT GROCERY STORES AND
SUPERMARKETS ARE LIKE USES AS APPLIED IN THE IRC LAND
DEVELOPMENT REGULATIONS
County Attorney Charles Vitunac asked everyone, including
staff, who planned to testify in this hearing to stand and be sworn
en masse. He further instructed those who do come forward to the
microphones placed at each side of the auditorium to state
whether or not they have been sworn in. If not, they will be sworn
in at that time. Attorney Vitunac thereupon swore in everyone
standing.
Community Development Director Bob Keating introduced the
following staff members: Planning Director Stan Boling; Senior
Planner John McCoy; County Engineer Roger Cain; Traffic Engineer
Bill Strange; and Public Works Director Jim Davis.
Director Keating explained that this is the first of two
appeals to be heard today and this hearing concerns an appeal by
Warren Dill of a Planning & Zoning Commission (P & Z) action
upholding a staff decision made in his capacity as Community
Development Director. He advised that the issue in this case is
whether or not supermarkets are allowed in a CL zoning district,
and he stressed that this is not a site specific question but
rather a general use question which affects the CL zoning district
throughout the county.
Director Keating presented the following staff recommendation
for denial of the appeal filed by Attorney Warren Dill on behalf of
the concerned residents of The Moorings:
July 12, 1994
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TO: James E. Chandler
County Administrator
D SION HEAD CONCURRENCE:
Robert M.KbatJng,alp
,P
Community Develop Director
I&
THROUGH: Stan Boling, AICP
Planning Director
FROM: John W. McCoy, AICP �� A
Senior Planner, Current Development
DATE: July 6,-.1994
SUBJECT: An Appeal by Attorney Warren Dill of the Planning &
Zoning Commission's Decision That Grocery Stores &
Supermarkets are Like Uses as Applied in the Indian River
County Land Development Regulations
It is requested that the data herein presented be given formal
consideration by the Board of County Commissioners at its regular
meeting of July 12, 1994.
This is the first of two appeals that relate to the proposed Sea
Mist Shoppes development. The other is an appeal by the applicant
of the Planning and Zoning Commission's denial of the Sea Mist
Shoppes major site plan application. These appeals are scheduled
to be heard consecutively, with the use issue considered first and
then the site plan issue.
BACKGROUND:
•The Appeal: Points of Disagreement
Attorney Warren Dill has filed an appeal on behalf of concerned
residents of The Moorings regarding a use determination made by the
Planning & Zoning Commission at its June 9, 1994 regular meeting.
(see attachment #1). The Planning & Zoning Commission's action
upheld a staff determination that:
1. grocery stores and supermarkets are the same use in the
context of the county zoning code, specifically section
911.10(4) of the County's Land Development Regulations; and
2. that such grocery store/ supermarket use is permitted in the CL
zoning district (see attachment #2).
The zoning code (Chapter 911) specifically lists the use "grocery
stores" but does not specifically list the use "supermarkets" nor
"shopping centers".
•The Appeal: History & Effect
Upon receipt of a request from Mr. Dill for a determination
regarding "supermarkets" (see attachment #3), staff reviewed the
July 12, 1994
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request pursuant to LDR section 911.04(2)(b) (attachment *4) and
issued a determination that:
1. Relative to the county zoning code, "grocery store" use
includes "supermarket" use; and
2. Grocery stores/supermarkets are permitted uses in the CL
zoning district.
The residents appealed this decision, since the decision affects
the Mooring's commercial property and the proposal for the Sea Mist
Shoppes. Since the Planning & Zoning Commission, after considering
the appeal, agreed with staff's decision, the residents are now
appealing the Planning & Zoning Commission's decision. It should
be noted, however, that the results of the appeal will affect where
grocery store/ supermarket uses are. allowed throughout the
unincorporated area of the county.
The Board of County Commissioners is now to consider the appeal and
either grant the appeal and overturn staff's and the Planning &
Zoning Commission's decision or deny the appeal and uphold staff's
and the Planning & Zoning Commission's decision. If the Board
grants the appeal and overturns the decision of staff and the
Planning & Zoning Commission, the Board will then need to:
A. Specifically define by size and/or use characteristics the
terms "grocery store" and "supermarket"
B. Specify which zoning district(s) a "supermarket" use is
allowed.
C. Specify the type of approval (eg permitted, administrative
permit, or special exception) needed for a "supermarket" use
in a given district. If administrative permit and/or special
exception approvals are specified, then specific land use
criteria must also be specified.
PLANNING & ZONING COMMISSION ACTION
At its regular meeting of June 9, 1994, the Planning & Zoning
Commission voted 3 to 2 to uphold thestaff's determination that
grocery store/ supermarkets are similar uses as applied in the
Indian River County Land Development Regulations. In denying the
appeal, the Planning & Zoning Commission found that the staff did
not fail to follow any of the four appeal criteria. Since it takes
four votes to overturn a decision of the Community Development
Director and only two votes "favored" overturning staff's decision,
the 3 to 2 vote to deny the appeal by the Planning & Zoning
Commission is an effective action.
ANALYSIS:
•Definitions
Since the LDRs do not define the terms "grocery store" or
"supermarket", staff considered several different sources to
determine how the terms "grocery store" and "supermarket" are
defined. A grocery store trade magazine resource cited by the
appellant is "The Progressive Grocer". "The Progressive Grocer's"
1994 Marketing Guide Book defines the terms as follows:
Grocery Store: "Any retail store selling a line of dry grocery,
canned goods, 'or non-food items plus some
perishable items."
July 12, 1994
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BOOK P�
Supermarket: "Any full line, self service grocery store with
sales volume of $2 idillion or more annually."
The Guide Book further defines an even larger grocery store (over
30,000 square feet) as a "superstore". Thus, "The Progressive
Grocer" defines supermarket as a type and subset of grocery store,
with a supermarket characterized as having $2 million or more in
annual sales. According to testimony at the Planning and Zoning
Commission meeting by the appellant's planning consultant, this
sales volume would roughly equate to a 4,204 square foot store,
based -on $11.38. per square foot.
The applicant has cited definitions of "grocery (store)" and
"supermarket" from two dictionaries (see attachment #1). The
definitions are consistent with the definitions in other common
dictionaries that staff uses. Listed below are the definitions for
grocer, grocery store, and supermarket from Websters Ninth New
Collegiate Dictionary:
Grocer: a dealer in staple food stuffs, meats, produce and
dairy products and usually household goods.
Grocery Store: 1. Commodities sold by a grocer, 2. A grocer's
store.
SuperMarket: a self service retail market selling foods and
household merchandise.
These definitions, including the appellant's, indicate that the
same type of merchandise is sold at grocery stores 'and
supermarkets, and that the uses are essentially the same.
Definitions indicate that supermarkets are large grocery stores,
which is precisely staff's point. "Supermarkets" may logically be
defined as a type of grocery store (a large grocery store).
•COMPARISON OF "GROCERY STORE" AND "SUPERMARKET" USES
It was staff's intent, in using the term "grocery store" when
drafting the zoning code, to include supermarkets. That is why the
term supermarkets does not appear in the zoning code. In essence,
it would be redundant to list the same use twice. Since
"supermarket" is not a specifically listed use category, however,
staff went through the procedure set -out in the LDRs to determine
the most similar use to "supermarket". According to the LDRs, such
a determination shall be made based upon a review of the Standard
Industrial Classification (SIC) code, a source which is used as a
general framework for the zoning code. Other factors which may be
considered shall be characteristics such as: traffic generation,
parking requirements, noise, compatibility to surrounding uses,
lighting, hours of operation, intensity, visual impacts, and type
of traffic. Staff's determination was made based upon a review of
the SIC code and a comparison of these criteria and other logical
factors.
•SIC Review
The Standard Industrial Classification (SIC) (attachment #5) is a
system for classifying establishments by type of economic activity.
The SIC manual groups, by 4 digit SIC number, those types of
establishments that primarily engage in the same activity (use).
The SIC code is one of the most extensive compilations of industry
classification available. Since the SIC code was used as a general
framework -and reference tool for developing the zoning code, the
SIC code is also used in interpreting the county's zoning code.
July 12, 1994
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Section 911.04(2)(b)2 (see attachment #4) of the County's LDRs
states that staff shall review the Standard Industrial
Classification (SIC) code as the primary basis for determining
unlisted uses, such as the "supermarket" use. When comparing the
SIC code and the county's commercial use table, it is clear that
"supermarkets" are to be considered a type of grocery store.
In reviewing the CL zoning district list of allowable uses
(attachment #2) and the SIC code's industry number classification
(attachment #5), it can be seen that the lists follow one another
precisely, as illustrated below.
Zoning Code Use Table Category SIC Code Industry # & Reading
Grocery Store 5411 Grocery Stores
Meat & Fish Market 5421 Meat & Fish Market (Seafood) Inc.
Freezer Provision
Fruit & Vegetable Market 5431 Fruit & Vegetable Markets
Candy, Nut & Confectionery Stores 5441 Candy, Nut, and Confectionery Stores
Dairy Products Store 5451 Dairy Product Stores
Retail Bakeries 5461 Retail Bakeries
The food store uses listed in the zoning code track the SIC code
industry numbers, meaning that any sub -use listed within the
industry number that is not listed in the zoning code would be
included and allowed under the SIC use category stated in the
zoning code. In reviewing the SIC code (attachment #5),
supermarkets appear as a subset of grocery stores (Industry #5411).
This would be comparable to allowing a produce market under Fruit
& Vegetable Markets (Industry # 5431). The SIC code clearly
considers supermarkets to be a type of grocery. In using the SIC
as the framework of the zoning code, it is clear that supermarkets
were intended to be permitted as a type of grocery store, and that
the unlisted "supermarket" use falls under the "grocery store"
category.
•Review of Other Characteristics
Section 911.04(2)(b)2 of the LDRs (attachment #4) indicates that
staff may consider other factors in a use determination. These
factors include traffic generation, type of traffic, parking
requirements, compatibility to surrounding uses, noise, lighting,
visual impacts, hours of operation, and intensity of use.
In comparing these factors for grocery stores and supermarkets,
staff found no significant differences. Below is a more detailed
summary of the comparison of these factors:
Supermarket Grocery
Parking 1 space per 200 sq.ft. 1 space per 200 sq.ft.
Traffic Impact Fee $2860 per 1,000 sq.ft.; for $2860 per 1,000 sq.ft.;
District 2 stores 10,000 sq.ft. or less for stores 10,000 sq.ft.
or less
$1628 per 1,000 sq.ft.; for $1628 per 1,000 sq.ft.;
stores 10,001-50,000 sq.ft. for stores 10,001-50,000
sq.ft.
Type of Traffic Primarily passenger vehicle Primarily passenger
(some delivery) vehicle (some delivery)
Hours of Operation 9:00 a.m. - 9:00 P.M. 9x00 a.m. - 9:00 p.m.
-Noise, lighting, and visual impacts are factors that are similar
for the two uses. Since grocery stores/supermarkets are commonly
found in association with shopping centers, these factors are
affected significantly by the .size and design of the shopping
center, rather than by the specific uses.
7
July 12, 1994
BOOR 92 PAGE 18(i
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BOOK 92 PACE "Si
-Intensity: Grocery stores/supermarkets are of similar intensity
on a per unit area basis. For retail food stores, the intensity
decreases *as the store size increases, as measured on a per area
unit basis.
-Trip Generation: The Institute of Transportation Engineers, Trip
Generation Manual (4th Edition) lists "shopping centers" and
"supermarkets" as use categories for traffic generation purposes.
The manual does not list "grocery stores". The Trip Generation
Manual does confirm that, generally, the number of trips decreases
• on a per 11000 square foot basis as the size level of the store
increases.-
-Compatibility to Surrounding Uses: Compatibility with surrounding
areas is addressed at two levels. The first level deals with the
broad compatibility issues at the land use and zoning levels.
Essentially, this is a question of whether two different zoning
districts should abut. Since the CL zoning district is a district
which allows the convenience type uses needed to support
residential areas, the CL district is routinely found in close
proximity to residential areas. The practice of locating
restricted commercial areas in close proximity to residential uses
and allowing convenience type shopping uses within the restricted
commercial areas is a commonly accepted planning practice that
makes sense and is supported by a wealth of planning literature.
Planning literature also shows that grocery stores and supermarkets
are both treated as convenience uses that serve neighborhood areas
and are appropriate uses in restricted commercial areas. Thus, in
relation to appropriateness and compatibility within restricted
commercial districts such as the CL district, there is no
difference between grocery stores and supermarkets. For that
reason, CL districts are compatible with adjacent residential areas
when buffering is provided with site design.
The second level deals with site related compatibility issues;
these are addressed at the time of site plan.review and approval.
Involving physical separation and buffering, traffic operations,
general layout, lighting, screening of solid waste storage areas,
and other site design criteria, these characteristics address site
oriented compatibility concerns. Design features and compatibility
measures are the same for grocery stores and supermarkets. Thus,
in relation to site plan design compatibility features, there is no
difference between grocery stores and supermarkets.
A comparison of compatibility characteristics indicates that the
two uses are the same.
•PERMITTED USE IN THE CL DISTRICT
The appellant also disagrees with staff's determination that the
grocery store/supermarket use is a permitted use in the CL
district. The appellant indicates that he considers the size of
the proposed Sea Mist Shoppes grocery store/supermarket to violate
the purpose and intent of the CL zoning district. The CL district
purpose and intent reads as follows:
"CL: Limited commercial district. The CL, limited
commercial district, is intended to provide areas for the
development of restricted commercial activities. The CL
district is intended to accommodate the convenience
retail and service needs of area residents, while
minimizing the impact of such activities on any nearby
residential areas."
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July 12, 1994
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The appellant has stated that "grocery stores are allowed in the CL
zoning district because they are compatible with the purpose of the
district,*and supermarkets are not." It is staff's position that
supermarkets are not a listed use in any district because
supermarkets are a type of grocery store, and clearly allowed in
the CL zoning district.
Presently, there are approximately 10 grocery stores/supermarkets
• in the unincorporated area of the county, all of which are located
in areas -zoned CG (General Commercial). Most of the grocery
stores/supermarkets are associated with shopping centers -that have
close to or greater than 100,000 square feet of retail area. There
are no grocery stores/supermarkets presently located in the CL
zoning district. It should be noted, however, that staff has
processed applications for shopping centers with grocery
stores/supermarkets in the CL zoning district. One such example
was for a Food Lion that was proposed at the northwest corner of
27th Avenue S.W. and 9th Street S.W. In fact, that site was
rezoned from residential zoning to CL to accommodate the Food Lion
and other retail stores within a proposed shopping center.
The appellant goes on to state "...Also, Super Markets are not
allowed in the CL district because the size is far in excess of
what is needed to serve area residents and the resulting impacts
have an adverse effect on nearby residential areas. Super Markets
are more appropriately located in the CG district because it is
intended to accommodate general retail sales uses of this type."
This statement contradicts planning literature that staff has
researched. General planning theory breaks -up commercial
uses/types into three levels: neighborhood, community, and
regional. A small shopping center (under 50,000 square feet, such
as proposed with the Sea Mist Shoppes application) is appropriate
for a neighborhood service area, according to the literature. A
larger shopping center of 100,000 square feet - 300,000 square feet
in size would serve as a community service area and would be
typified by shopping centers such as Ryanwood (108,670 square
feet), South Vero Square (158,302 square feet), and Riverwalk
(207,736 square feet). A regional center would be greater than
300,000 square feet and be typified by a regional mall style of
development.' The community and regional levels are appropriate
in the General Commercial district (CG), while the Limited
Commercial district (CL) would be appropriate for smaller centers
with grocery stores/ supermarkets that serve neighborhood areas.
The Urban Land Institute's Shopping Center Development Handbook
states that, "The supermarket is an anchor tenant in the
traditional neighborhood centers."
'Shopping Center Development Handbook, Urban Land Institute,
McKeever, Ross J. and Griffin Nathaniel M. et.al., p. 7, copyright
1977.
BOOK 92 PACE
July 12, 1994
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Below is a generalized guide that breaks -down shopping center size_
by service area from various sources.
CHARACTERISTICS CP SHOPPING CBPTffit8
CENTER TYPE
LEADING TENANT
TYPICAL Gross
GENERAL RANGE
USUAL NIINIMOM
MINIMUM
FLOOR AREA
(HABIs FOR
Leasable Area
IN GLA
SITE ARCh
SUPPORT
POP.
CUMIFICATION)
(GLA)
OF
RSQUINED
NEID OOD
supermarket or
50,000 sq.ft.
30,000 -
3 acme
2,500 - 40,000
CENTER
drugstore
Supermarket a
100,000 a .ft.
4,000
pecale
CMQWNITf-
Variety, discount,
150,000 sq.ft.
100,000 -
10 acres or
40,000 -
CERTER
or junior
sq.ft.
300,000 sq.ft.
more
150,000 people
department store
REG=%L CENTER
One or more full-
400,000 sq.ft.
300,000 -
30-50 acres or
150,000 or
100,000-
line department
CENTER
1,000,000
more
mare people
stores of at least
250,000
sq.ft. or more
plus sales of
department
100,000 sq.ft. of
sq.ft.
GLA
store
Source: Shopping Center Development Handbook, McKeever a Griffin, published by Urban Land Institute.
CENTER TYPE
FUNCTION
LEmII4G
RADIUS
MIN.
BITE
FLOOR AREA
NIA+IDSH
TENJUM
OF
POP.
ANSA
OF
SERVICE
AMR
STORES
NEIGSHOIO WD
sales of
Supermarket a
i mile
4,000
4-8
30-75,000
5-20
CENTER
convenience and
drug ators
acres
sq.ft.
goodspersonal
CM1MUAITY
Same function
Variety store
2 miles
35,000
10-30
100,000-
15-40
CENTER
as neighborhood
small
acres
250,000
plus sales of
department
sq.ft.
apparel a
store
appl J ance
REGIONAL
Same function
One or more
4 miles
150,000
40-80
400,000-
40-80
CEATER
as comity
large, major
acres
1,000,000
center plus
department
sq.ft.
Nam of
stores
general
mar..MwnA� N a
furniture
Source: Urban Planning A Design Criteria, Third Edition, DsCharia A Koppleman published by Van Nostrand Reinhold.
Note: These tables are summaries and general guidelines to the
different levels of commercial centers. As other pages in the
source state, service areas vary in size and shape based on unique
geographical constraints, density, and proximity to other
commercial areas. The radius or the driving time becomes .larger or
longer when surrounding residential uses are low density, (when
there is a unique geographical constraint) or the commercial site
is' -distant from other commercial and urban areas.
All of the literature is clear that grocery stores/supermarkets are
key components of neighborhood commercial centers, and that
neighborhood commercial centers provide sales of convenience and
personal services. Therefore, according to this planning
literature, a shopping center 50,000 square feet or less with a
grocery store/ supermarket would be consistent with the purpose and
intent of the CL zoning district. Such is the case with the Sea
Mist Shoppes proposal.
-Distinction Between Zoning Districts
Like most jurisdictions, Indian River County has a set of zoning
districts that are hierarchal in nature. Its three principal
commercial districts, CN (neighborhood), CL (limited), and CG
(general), are structured to accommodate different types of service
areas, and the uses permitted in each district have been
established according to these service area needs.
July 12, 1994
Eut
Serving the smallest geographic area, the Neighborhood
District .(CN) allows the least intense and most common
its intent being to allow uses which serve primarily the
of the immediate area, the CN district permits those use
convenience oriented. For that reason, grocery stores a
in the CN district.
Commercial
uses. With
residents
s which are
re allowed
As with CN, the CL district was also established as a restricted
district. The restricted nature of the CL district reflects the
fact that the purpose of the district is to serve an area larger
than a --neighborhood, but not a countywide area. For that reason,
the CL district prohibits those types of uses that have a broader
market area. Consequently, automobile dealerships, large discount/
department stores, fruit and vegetable packing houses, and other
similar uses are not allowed in the CL district. Those uses draw
from a larger area of the county and are. allowed in the CG, General
Commercial, district:
The appellant draws a comparison between department stores and
grocery stores/supermarkets based solely on traffic generation. The
appellant indicates that a supermarket generates about 3 times the
traffic that a department store does on a per unit area basis. The
appellant provides no documentation such as trip rates per 1,000
square feet to substantiate the claim. The ITE Trip Generation
Manual 4th Edition does not list department stores as a use, but it
lists an average annual daily trip rate of 125 trip ends for
supermarkets per 1,000 square feet, and average annual daily trip
ends of 70.13 for discount stores per 1,000 square feet and a rate
of 91.65 trip ends per 1,000 square feet for a shopping center of
50,000 square feet. Thus, ITE standards indicate that retail
facilities such as department stores do not -generate 3 times more
trips than supermarkets on a per unit area basis.
It should also be noted that trip generation is not the
distinguishing factor in determining what uses are allowed in the
CL district as opposed to the CG district. Department stores are
limited in size in the CL district not because larger department
stores generate more trips, but because larger department stores
will draw customers from a larger area than the CL district uses
are intended to serve.
*REVIEWING PLANNING AND ZONING COMMISSION DECISIONS
LDR section 902.07(5) states that, in its review of Planning and
Zoning Commission decisions, the Board is to make findings in four
areas, as follows:
1. Did the reviewing official/Planning and Zoning Commission fail
to follow the appropriate review procedures?
2. Did the reviewing official/Planning and Zoning Commission act
in an arbitrary or capricious manner?
3. Did the reviewing official/Planning and Zoning Commission 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/Planning and Zoning Commission fail
to evaluate the application with respect to the comprehensive
plan and land development regulations of Indian River County?
11 EOOK 92 FAZE �
July 12, 1994
F_
In regards to these four areas,
staff's opinion is as follows:
1. The reviewing official/Planning and Zoning Commission did not
fail to follow appropriate review procedures. Staff's review
and response to the appellant's inquiry was procedurally
correct. All procedures for processing the appeals have been
followed.
2. The reviewing official/Planning and Zoning Commission did not
act in an arbitrary or capricious manner. The procedures for
reviewing use determinations were followed, as indicated in
the analysis section of this report. Also, staff and the
Planning and Zoning Commission used the SIC code, •planning
literature, and widely -accepted traffic standards in its
review, as previously cited in the analysis section of this
report.
3. The reviewing official/Planning and Zoning Commission did not
fail to adequately consider the effects of the proposed
development upon surrounding properties. As previously
discussed in. the analysis section of this report, these
characteristics were reviewed in comparing "grocery stores" to
"supermarkets".
4. The reviewing official/Planning and Zoning Commission did not
fail to evaluate the determination with respect to the
comprehensive plan and land development regulations. As
previously discussed in the analysis.section of this report,
the framework of the LDR zoning code use table and the LDR
buffer requirements were considered. The intent of the CL
district and accommodation of convenience uses were also
considered, as indicated in the analysis section of this
report.
SUMMARY
In summary, grocery store/ supermarket is the same use. This use is
allowed in the CL zoning district to serve neighborhood commercial
type needs. Therefore, neither staff nor the Planning and Zoning
Commission made an error in interpreting or applying the land
development regulations.
RECOMMNDATION:
Based on the analysis above, staff recommends that the Board of
County Commissioners:
1. Find that neither the Community Development Director nor the
Planning and Zoning Commission failed in any of the 4 areas of
review, as described in this report, and
2. Deny the appeal and uphold the Planning & Zoning Commission's
decision that "grocery stores" and "supermarkets" are the same
use within the Indian River County Land Development
Regulations and that "supermarkets" are permitted in the CL
zoning district.
July 12, 1994
M
11A
M
-1
Director Keating next reviewed the following letter written to
Attorney Warren Dill by Senior Planner John McCoy:
Telephone: (407)567-6000
May 9, 1994
Mr. Warren Dill
Wabasso One Building
9025 US 1, Suite 4
Sebastian, FL 32958
RE: Sea Mist Shoppes
SP -MA -94-06-023
Dear Mr. Dill:
RECEIVED MAY 1 0 1994
Staff is in receipt of your letter requesting a use determination
for the above referenced project. It appears from your letter that
you are contending that grocery stores and supermarkets are two
different uses rather than two words for the same use. In response
to your inquiry, staff reviewed the Standard Industrial
Classification (SIC Code), ITE Trip Generation Manual (4th
Edition), parking requirements, traffic impact fee rates, and
Webster's Dictionary to see if these sources make a distinction
between grocery stores and supermarkets.
As referenced in section 911.04(2)(b)2, the principal basis for
reviewing unlisted uses is the SIC. The SIC treats grocery stores
and supermarkets as synonymous uses, giving the two words the exact
same classification (category 5411). Given that the two items are
listed as the same use in the SIC, and that the other referenced
sources do not treat these two terms as different uses, staff has
determined that "grocery stores" and "supe -.-markets" refer to the
same use, and that such use is permitted in the CL zoning district.
Should you have any questions regarding this matter, please do not
hesitate to contact me at (407) 567-8000, extension 242.
Sinc ely,
John W. Mcoy, AICP
Senior Planner, Current Development
JM/ca
12
July 12, 1994
After reviewing staff's recommendation for denial, Director
Keating wished to point out what he believed to be an incorrect
statement in the second to the last paragraph in the following
letter from Attorney Warren Dill:
April 27, 1994
Robert M. Keating, AICP
Community Development Director
1840 25th Street
Vero Beach, FL 32960
re: Determination of Similar Use
BY FACSIMILE THIS DATE
Dear Bob:
As you know, I am representing various concerned residents of The Moorings, regarding
the Sea Mist Shoppes proposed to be located in the heart of this tranquil residential community
("the site"). Of most concern is the proposed 27,000 to 28,000 square foot Publix super market,
with an adjacent 10,700 square feet of undisclosed retail uses.
The site (approx. 5.32 acres) is zoned Limited Commercial (CL). I understand that there
are only two (2) properties in the County with CL zoning. The other is located on the corner of
CR 510 and State Road A1A. Neither property seems appropriate for CL zoning, particularly,
The Moorings site, which is encircled by homes.
This site was originally zoned C -1A in the late nineteen sixties. This was before planning
and comprehensive plans evolved to the level of importance and legal significance they now hold.
When the zoning was changed from C-lA to CL, I believe little thought was given to the
appropriateness of the CL district on this site. It appears to have been an automatic roll over
from the original zoning to the new classification. While such actions are not per se
inappropriate when dealing with county wide rezonings, they can be troublesome when site
specific development is proposed, as we are now seeing.
This site is inappropriate for the CL classification, and the proposed use of it for a 27,000
to 28,000 square foot Publix Super Market is questionable as a permitted use. "Grocery stores"
are "permitted uses" in the CL district, but Super Markets are not listed in Section 911.10(4),
Land Development Regulations. The Application refers to the use as a "grocery store" in order
to "fit" the use allowed in Section 911.10(4). If the applicant is willing to limit the use store to
the sale of just groceries .then the listed use (grocery store) would seem more appropriate.
However, it is common knowledge that Publix sells a lot more than groceries.
The term "grocery store" is not defined in the Land Development Regulations. A
"grocery store" commonly denotes a facility of much more modest scope than a Super Market.
There is no question that this is a Super Market, even the letterhead for Publix refers to it as
"Publix Super Markets". No one has ever denied that the proposed Publix is a Super Market in
all prior communications. I understand that the Publix on Miracle Mile is 24,000 to 25,000
square feet. It is smaller than the Publix proposed for The Moorings site. To say this is a
"grocery store" is misleading.
13
July 12, 1994
Section 911.04(2)(b) Unlisted Uses, sets for the precise procedure and criteria for
determining whether there is a similar use allowed for a requested use that is not listed. If a
similar use can not be determined, than the proposed use is not allowed, unless the regulations
are changed.
If you go through the "criteria for reviewing uses not listed" in Section 911.04(2)(b)2, you
will come to the same conclusion that grocery stores and Super Markets are not synonymous
terms. The key elements in the review process are:
traffic generation (delivery trucks and vehicles)
parking requirements
compatibility to surrounding land uses
noise
lighting
visual impacts
hours of operation
intensity of use
The magnitude of the adverse impacts of these factors increases at a much faster rate for a Super
Market than for a grocery store.
There is certainly a distinction between a grocery store and a Super Market. In the CL
district this distinction is critical. The CL district has attempted to limit the impacts of
commercial development on "near by residential areas" (Section 911.10(2)(e)) by quantifying the
maximum size of Department Stores to 40,000 square feet (Section 971.42(2)). For a "grocery
store" to have no more impact than a 40,000 square feet Department Store it would have to be
about one-half the size, based on traffic generation.
I have reviewed the County file for the Sea Mist Shoppes and discussed this with John
McCoy. Apparently an official written determination of similar use has not been prepared. It is
requested that you make this determination in accordance with the provision of Section
911.02(2)(b), since there is no definition for a "grocery store" and a "Super Market" is not listed
in Section 911.10(4).
The County may want to examine the appropriateness of proceeding with a site plan
review, when a major proposed use (Super Market) is not clearly permitted (listed) in the CL
district, until an official determination has been made in accordance with and subjected to the
review procedures in the Land Development Regulations.
Very truly yours,
Warren W. Dill
cch
14
July 12, 1994
BOOK 92 PAGE F�I 8®
80OX 92 Fqf. 789
Director Keating felt that Attorney Vitunac may want to
address the quasi-judicial question.
TO:
FROM:
DATE:
RE:
Board of County Commissioners
Charles P. Vitunac, County Attorney
July 6, 1994
Standard of Review for Site Plan Appeal
I have been asked to state briefly the legal prerogatives of the Board
of County Commissioners regarding site plan appeals under the Indian
River County Code and State law and in partiedlar regarding the Publix
site plan for The Moorings, which is under appeal.
SUMMARY OF SITE PLAN REVIEW
The site plan review requirements are given in Section 914.15 of the
Code and can be reduced to the following three inquiries, each of which
will be discussed in turn:
1. Is the use allowed by the zoning code?
By the time the Publix site plan appeal is heard, the Board of County
Commissioners may have resolved the issue whether a "supermarket" is
within the ambit of the term "grocery store" and hence allowed in a CL
zone. If the use is not allowed, the site plan must be rejected. If
the use is allowed, the Board.must next determine if the site plan meets
the objectively determinable standards.
2. Are all objectively determinable standards met?
These standards are specifically enumerated in the code and can be
objectively determined. By the time this appeal is heard the County
staff and- the Planning and Zoning Commission may have made a
recommendation for approval or not based on the objectively determinable
standards issues. County policy is to have the applicant re -work the
site plan until the County staff finds that all requirements are in
order. Therefore, it: is not expected that objectively determinable
standards requirements will be a decisional issue. However, if they do
become an issue the burden of proof is on the applicant to present
competent, substantial evidence showing compliance with each objectively
determinable standards requirement. This review by the BCC is quasi-
judicial. This means that, once unrebutted proof hap been made showing
compliance with each requirement of the Code, the Board is required to
grant the permit applied for, at least in so far as this objectively
determinable standards issue is concerned.
3. Is the site plan consistent with the comprehensive plan?
State law requires that all land use decisions be consistent with the
comprehensive plan. There are no'exceptions. A site plan approval is
such a land,use decision.
How does Indian River County ensure that its site plan decisions are
consistent with the comprehensive plan?
15
July 12, 1994
M
"Consistency" is defined in Section 163.3194(3)(a), F.S., as follows:
A development order or land development regulation shall be
consistent with the comprehensive plan if the land uses, densities
or intensities, and other aspect of the development permitted by
such order or regulation are compatible with and further the
objectives, policies, land uses, and densities or intensities in
the comprehensive plan and if it meets with all other criteria
enumerated by the local government.
In the first instance, the County relies on Section 163.3213(3), F.S.,
which directs that any challenges to the consistency of the Land
Development Regulations (LDRs) with the comprehensive plan must be filed
within 12 months of the date of LDR adoption and are thereafter barred.
Since_this time has elapsed without challenges a person may not now
claim that the LDRs are inconsistent with the comprehensive plan, and
there is ' a presumption that the LDRs are consistent with the
comprehensive plan. The Board may take notice of the numerous public
hearings, both during the day and at night, by both the Planning and
Zoning Commission and the Board of County Commissioners, which were held
to ensure that the County LDRs were made consistent with the
Comprehensive Plan.
The second means is the thorough review by staff professionals of the
proposed site plan and its relation to the LDRs, zoning code, and
comprehensive plan --all done with public input. The County. land use
professionals have all determined that the site plan is consistent with
the comprehensive plan.
As a third means of ensuring compliance the County has established the
following hierarchy of land use controls:
General Outline of Land Use Controls ("controls")
A. Comprehensive Plan
B. Zoning Regulations
C. Site Plans, PVDs, Subdivision Plats Regulations
D. Building Permits
E. Certificates of Occupancies
Consistency with the comprehensive plan is ensured by requiring that
each control be consistent with the control next in priority. (The
comprehensive plan is the highest priority.) If each control is
consistent with the one above it, then it also will be consistent with
the comprehensive plan. This method reduces the numerous reviews that a
thorough comprehensive plan analysis would otherwise require. Only the
next higher level of control must be reviewed. Thus, for a site plan
review, once the objectively determinable standards are met only the
zoning code need be looked at.
The._first'three controls will be discussed individually:
16 800K 92 PACE ' I
July 12, 1994
500K 92 FACE '791
A. Comprehensive Plan
The highest control, the comprehensive plan, is a statutorily mandated
legislative plan to control and direct the use ,and development of
property within the county. The plan is similar to a constitution for
all future development within the county and is developed by the BCC in
its legislative discretion subject only to state law requirements. It
is the adopted portion of the comprehensive plan (i.e., goals, objective
standards, land use map, and other reference tables) that carry the
force of law.
B. Zoning Regulations
The LDRs are the means by which the comprehensive plan is implemented
and their implementation involves the exercise of discretionary powers
within limits imposed by the comprehensive plan. The requirement of the
state that all LDRs conform to the comprehensive plan is in effect a
limitation on the local government's otherwise broad zoning powers. In
the last few years, Indian River County has made all its zoning and
other •land development regulations consistent with the comprehensive
plan. As already mentioned any challenges based on inconsistency of
LDRs with the comprehensive .plan -not filed within 12 months of LDR
adoption are time-barred by Section 163.3213(3)1 F..S.
C. Site Plan
The County's site plan regulations are also LDRs, which have been
adopted through the public hearing process, and are thus presumed to be
in compliance with the comprehensive plan. However, specific site plans
must, be reviewed for consistency with the LDRs. Section 914.15 of the
Code requires that "site plans shall be reviewed pursuant to all
applicable zoning district regulations and regulations for specific land
uses, as applicable" and that "the development of any areas subject to
the provisions of this ordinance shall be consistent with the policies
regarding land development as established in the various elements of the
Indian River County comprehensive plan." This section lists some 26
matters to consider, most of which are objectively determinable
standards. Thus the burden. of proof is on the proponent of the plan to
show consistency or compliance with the aforementioned requirements.
STANDARD OF REVIEW
Once the evidence for both sides has been presented what is the standard
of review available to the Board of County Commissioners?
When enacting the comprehensive plan and initial LDRS the Board acts as
a legislative body subject to the deferential "fairly debatable" rule.
When reviewing.site plan issues, however, the Board is acting as a
quasi-judicial body. This means that there must be competent,
substantial evidence for every required finding, and that the decision
of the Board must be based on whether the applicant has met the
requirements of existing law. It would not be appropriate to consider
what the law should be (That would be a legislative decision). A county
cannot unreasonably withhold site plan approval -once the legislatively
adopted existing legal requirements have been met.
The following excerpts from controlling court cases may. assist the Board
in understanding the review standards:
17
July 12, 1994
M M M
M
CABS EXCERPTS
1. it . . . the function of a . . . commission is reviewing a property
owner's proposed site plan for development of the owner's property
in accord with the city zoning laws was not legislative in nature,
but rather administrative [i:e., quasi-judicial]." (City of Delray
Beach)
2. of . . . a city cannot unreasonably withhold approval [of a site
plan] once the legislatively adopted legal requirements have been
met." (City of Delray Beach)
3. "All persons similarly situated should be able to obtain plat
approval upon meeting uniform standards. otherwise the official
approval of a plat application would depend upon the whim or
caprice of the public body involved." (City of Delray Beach)
4. "The administrative procedure for site plan approval is
quasi-judicial in nature, and conducted to factually determine if a
proposed site plan submitted by the property owner conforms to the
specific requirements set out in the administrative -regulations
governing the erection of improvements on the property . . . Those
conditions should .be set out in clearly stated regulations.
Compliance with those regulations should be capable of objective
determination in an administrative proceeding. While the burden
may be on the property owner to demonstrate compliance, no
legislative discretion is. involved in resolving the issue of
compliance." (City of Delray Beach)
S. "When the public entity ,- conducts site plan . . . review, it
merely applies_ established ruses of law to existing and uncontested
facts." (City of Delray Beach)
6. " . . . the authority of a town to deny the land owner the right to
develop his property by refusing to approve the plat of such
development is, by statute, made to rest upon the specific
standards of a statute or implementing ordinances. Thereafter, the
approval or disapproval of the plat on the basis of controlling
standards becomes an administrative act." (City of Coral Springs)
7. "It is elementary that once a party complies with all legal
requirements for platting there is no discretion in governmental
authority to refuse approval of the plat." (City of Coral Springs)
a. "Section 14 of the Broward County Plat Act . . . provides that such
approval may be 'subject to such conditions as the governing body
of the . . . county commissioners . . . may deem to be in the best
interest of the public.' Without pursuing the validity of that
provision . . . we hold that , having met all of the legal
requirements for obtaining plat approval, the county must approve
[the] plat . . ." (Broward County case)
9. "opposition of surrounding property owners must be considered by
the city . . . since the statement of intent of the . . . ordinance
includes the desire to achieve aesthetic and compatible
relationships between adjacent properties. But the opinions of
neighbors by themselves are insufficient to support a denial of a
proposed development. We agree with the city that project density
is a legitimate concern . . . But it is a concern that must be
addressed and expressed in appropriate ordinances." (City of
Deland)
18
July 12, 1994
BOOK 92 Fta h2
10. "The correct law applicable in this case is that the ordinance
should be given its plain meaning and that any doubts should be
construed in favor of a property owner. The circuit court's
reliance upon the undefined and uncertain standards contained in
the statement of intent when clear and specific numbers of units
are expressed in that same ordinance is not an interpretation that
recognizes the plain meaning of the ordinance." (City of Deerfield
Beach)
11. "The site plan merely regulates the layout of a piece of property,
the design of the buildings, and the actual locations of the
buildings on that site. The city's zoning ordinance control the
uses to which a particular piece of property may be put. The plan
board, therefore, is not to be concerned with the particular use of
a piece of property as long as it fits within the permitted uses of
the city's zoning ordinances." (City of Gainesville)
12. "The plan board members voted to deny the petition because of the
parcel's intended use . . . not because it failed to comply with
appropriate criteria for site plan approval." (City of Gainesville)
(This was found to be illegal.)
13. "The test in reviewing a challenge to a zoning action on grounds
that a proposed project is inconsistent with the comprehensive land
use plan is whether the zoning authority's determination that a
proposed development conforms to each element and the objectives of
the land use plan is supported by competent and substantial
evidence. The traditional and non -deferential standard of strict
judicial scrutiny applies. (Machado case)
14. "A development order or land development regulation shall be
consistent with the comprehensive plan if the land uses, densities
or intensities, and other aspects of development permitted by such
order or regulation are compatible with and further the objectives,
policies, land uses and densities or intensities in the
comprehensive plan, and if it meets all other criteria enumerated
by the local government." (Machado case)
15. "Zoning laws are in derogation of the common law and as a general
rule are subject to strict construction in favor of the right of a
property owner to the unrestPicted use of his property. Permitted
uses must be interpreted broadly, prohibited uses strictly so that
doubts are resolved in a property owner's favor." (City of South
Miami)
Attorney Vitunac explained that the Board is acting as a
quasi-judicial body today, which is a very important distinction.
Legislative means that the Board would sit up here and decide what
the definition should be for the future, and adopt an ordinance to
that effect. Arguments can be made at a later time to change the
Zoning Code in the future, but today the Board is not sitting as a
legislative body, even though their determination today will affect
the definition of all grocery stores in the county in the CL zone.
19
July 12, 1994
Director Keating continued the presentation of all the
information that was provided to the P & Z Commission to support
the decision that grocery stores and supermarkets are the same use.
Staff's recommendation is that the Board first find that neither he
nor the P & Z Commission failed in any of the four areas for
review; and second, deny the appeal and uphold the P & Z
Commission's decision that grocery stores and supermarkets are the
same use within the context of the Zoning Code.
Chairman Tippin asked if the Board had any questions at this
point. There being none, he opened the public discussion.
Attorney Warren Dill, appearing on behalf of the concerned
residents of the Moorings, specifically Gene Winne, William
Lampert, Robert Salmon, Jr., John W. Zilg and George Millington,
commented on the great number of people in attendance this morning
considering that approximately 80 percent of the residents of the
Moorings and South Beach usually are up north at this time of the
year.
Attorney Dill listed the speakers who will be presenting
documents and giving testimony this morning:
Gene Winne -- overview of the use issue and size factor.
Warren Dill -- legal review of the criteria.
Prof. Ronald W. Cotterill -- discussion of Stanard Industrial
Classification (SIC) Code and explanation of staff's
incorrect conclusion.
Robert Swarthout -- planning issues required to be
considered by the Board, i.e. parking, adverse impacts,
property values, compatibility, etc.
Before beginning their presentation, Attorney Dill wished to
make sure that the record of this meeting contains everything that
was presented to the P & Z Commission and to the County Planning
staff prior to today's hearing. He pointed out that two items were
omitted from this hearing: 1) His initial letter requesting staff
to make this determination, and 2) The actual decision by John
McCoy, the designee of Community Development Director Robert
Keating, determining that supermarkets and grocery stores were
synonymous terms.
Attorney Dill also requested that the following items be made
part of this record:
Staff's memo of recommendation.
Minutes of the June 9, 1994 P & Z Commission meeting.
All the letters, petitions and correspondence sent to the
County Commission.
20 yg
BOOK S F'AU,F 79
July 12, 1994
BOOK 92 FAi;E 195
The Board reviewed the following memo dated 7/11/94:
TO: Board of County Commissioners
FROM: Alice E. White, Executive Aide
DATE: July 11, 1994
SUBJECT: Correspondence on the Proposed Publix Store at the
Moorings Development
Due to the restrictions placed on receiving correspondence with
respect to cases coming before the County Commission when seated
as a quasi-judicial board, we have held the correspondence sent
to County Commissioners regarding the proposed Publix store at
the Moorings development in our office.
Mr. George Shaw and Mr. Walter Bush brought in three stacks of
letters and they claim that these total 1200 against the proposed
Publix store. •Through our office mail, we have received'a total
of 64 letters against the store. I do not have the staff or the
time to check and see if there are any duplications In this
correspondence.
The letters in opposition list the following reasons for
opposition: traffic concerns
aesthetic character of neighborhood
lowering of property values
noise and bright lighting
night deliveries and late hours
need for additional police protection
violation of County Code regarding compatibility
with the built and natural environment
litter
air pollution
no need for supermarket
river pollution
varmints
.supermarket not same as convenience retail store.
We have also received 4 letters and 1 phone call in favor of the
Publix store listing the following reasons for support:
property rights of land owner
will add to residents property values
decrease of traffic on US#1
lack of grocery store on barrier island
fulfills a need.
The correspondence is available for review at the appeal hearing,
as well as petitions and correspondence presented at the Planning
and Zoning Commission meeting on May 12, 1994.
21
July 12, 1994
NOTE FROM BARBARA BONNAH, DEPUTY CLERK, CLERK TO THE BOARD: All of
the above listed items plus any and all exhibits presented during
this meeting that haven't been inserted into these Minutes will be
placed on file in the Office of the Board of County Commissioners
for 3 years. (Please see index at the back of these Minutes.)
Attorney Ralph Evans, representing the applicant of the site
plan, had a general objection to the evidence being presented into
evidence today. He believed the Board's job today is to review the
record presented by the applicant at the P & Z Commission meeting
and make the right decision based on substantial competent
evidence.
Attorney Vitunac noted that we treat the BCC as de novo for
various reasons, and he recommended that the Board admit all the
letters and give them what weight they deserve, which is
acknowledgement. The letters are not sworn and they are subject to
cross examination. He felt the Board should weigh that when
reading them.
Attorney Evans thereupon presented for the record a certified
copy of a transcript made at the P & Z Commission hearing.
(Exhibit C)
Chairman Tippin announced that the Board will accept all
evidence and testimony presented today.
Attorney Dill wished to point out that Halvorsen Development
Group, as represented by Attorney Evans, is not a party to this
issue. This has nothing to do with the Sea Mist Site Plan.
Attorney Vitunac felt it is clear to everyone that the Sea
Mist people are an interested party who have a sole interest at
stake here, which is affected by this determination. If.there is
a lawsuit after this based on a ruling adverse to them, that group
can file a lawsuit. In his opinion, they are a party.
Attorney Dill noted that having made his objection for the
record, he would continue his review of the legal criteria in this
matter. He referred to the following memo from Assistant County
Attorney Terry O'Brien titled Interpretation of Zoning Laws:
22
July 12, 1994
BOOK 92 PAGE 79
6 OK G ma 1/ i
TO: Board of County Commissioners
u
THRU: Charles P. Vitunac, County Attorney
FROM: Terrence P. O'Brien, Assistant County Attorney
DATE: July 6, 1994
RE: INTERPRETATION OF ZONING LAWS
General Law
There are certain maxims which the courts universally apply to the
construction of zoning laws. Perhaps the first and the controlling
maxim is that • zoning ordinances which are in derogation of the
common law and operate to deprive an owner of an otherwise lawful
property use should be strictly construed in favor of the property
owner. This is so since the federal and state constitutions give
great protection to property rights. This rule leads to a very
narrow construction when a word or phrase used to describe a use
which is to be prohibited in a particular zoning district, and a
very liberal construction of a word or phrase used to describe a
use which is to be permitted.
A corollary to this rule of strict construction is that, in ambiguous
cases, a zoning ordinance will not be extended by implication
against the property owner. For example, if an ordinance were to
list permitted uses and prohibited uses and the proposed use was
not in either list, the courts would not allow the use to be
impliedly placed in the prohibited category if there was a
reasonable doubt concerning the meaning of the use. The courts
will by virtue of strict construction say that the proposed use
belongs in the permitted category.
Florida Law
The law in Florida is succinctly stated in Mandelstam v. City
Commission of the City of South Miami, 539 So . 2d 1139 (1988 )
wherein the court stated in pertinent part as follows "'permitted
uses must be interpreted broadly, prohibited uses strictly, so that
doubts are resolved in a property owner's favor.... Zoning laws
are in derogation of the common law and, as a general rule, are
subject to strict construction in favor of the right of a property
owner to the unrestricted use of his property."
Florida law vis-a-vis County Staff interpretation
Mr. Keating, as Director of Community Development, has
interpreted the County Land Development Regulations to mean that
the word "Supermarket," which is not defined in the Code, is
subsumed in the term "Grocery Store," and is therefore a
permitted use in the CL District. It is the opinion of this office
based on the law stated above that this is a legally correct
conclusion.
23
July 12, 1994
Attorney Dill pointed out that the Board is not bound by the
opinion given by Attorney O'Brien, and must base a decision on the
evidence presented today. If evidence is presented today that the
Board feels is substantial enough to warrant the decision that
grocery sores and supermarkets are not the same, that decision can
be made without going against the County Attorney's opinion.
Attorney Vitunac stated that he agreed with that.
Attorney Dill proceeded to present the legal criteria to be
considered by the Board in making their determination today.
REASONS TO REVERSE
MR. KEATING'S POSITION THAT GROCERY
STORES AND SUPERMARKETS ARE THE SAME USE
Section 902.07(4) requires the following findings:
(a) Did the reviewing official fail to follow the appropriate review procedures? - Yes
(1) Failed to consider that the purpose of the CL District is only intended to accommodate
convenience retail needs of area residents while minimizing the impacts of new uses on nearby
residential areas.
(2) Misinterpreted the use of the Standard Industrial Classification (SIC) Code by failing to
consider the six (6) digit classification and improperly concluding that every item listed under a
Major Group heading was intended to be a permitted zoning use.
(3) Inadequate consideration was given to the following required criteria:
traffic generation (delivery trucks and vehicles) visual impacts (property values)
parking requirements hours of operation (lam - 10pm)
noise (dumpsters, sweepers, diesel intensity of use
trucks, generators, air conditioners)
compatibility to surrounding land uses
(odors, vermin, safety and crime)
lighting
(4) Staff failed to recognize the difference in its own definitions of grocery store and
supermarket.
(5) Staff failed to recognize that the LDR definition of "Retail sales, general" applies to
general commercial uses and specifically listed "supermarkets".
(6) Staff failed to adequately consider the uses appropriate in the CL district as controlled by
the definition..."the CL district is intended to provide areas of restricted commercial activities.
The CL district is intended to accomodate the convenience retail and service needs of area
residents, while minimizing the impact of such activities on any nearby residential areas".
(Emphasis added.) Section 911.10(2)(e)LDR.
(b) Did the reviewing official act in an arbitrary' or capricious manner? NO
(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? Yes
See reasons in items (a) (1) and (3) above
(d) Did the reviewing official fail to evaluate the application with respect to the comprehensive plan
and land development regulations of Indian River County? Yes
See reasons in items (a) (1), (2), (3) and (5) above
Upon making the above findings, the Board has the authority to make a Motion to reverse the decision
of the Community Development Director, including his designee, which concluded that grocery stores and
supermarkets are the same use, and you find that they are not the same use.
Under Section 902.07(4) the Board may make additional finding of fact if it desires.
24 BOOK 92 P1 E �! Jib
July 12, 1994
Boob 92 PmE bU
SIC CODE COMPARISONS
"In reviewing the CL zoning district list of allowable uses (attachment #2) and the SIC
code's industry number classification (attachment #5), it can be seen that the lists follow one
another precisely, as illustrated below." (See Staff report page 4.)
Zoning Code Use Table Category
Grocery Store
Meat & Fish Market
Fruit & Vegetable Market
Candy, Nut & Confectionery Stores
Dairy Products Store
Retail Bakeries
SIC Code Industry # & Heading
5411 Grocery Stores
5421 Meat & Fish Market (Seafood)
Inc. Freezer Provision
5431 Fruit & Vegetable Markets
5441 Candy, Nut, and Confectionery
Stores
5451 Dairy Product Stores
5461 Retail Bakeries
'Me food store uses listed in the zoning code track the SIC code industry numbers, meaning that
any sub -use listed within the industry number that is not listed in the zoning code would be
included and allowed under the SIC use category stated in the zoning code." (See Staff report
page 4.)
LDRs USES (SECTION 911.10(4))
Eating and Drinking
Establishments
Hamburger stands
OCR
ME
D
CN
CL
C
G
CH
Restaurants
Lunch bars
Cafeterias
A
P
P
P
P
Carry -out restaurants
Oyster bars
A
A
P
P
P
P
Drive through restaurants
-
Restaurants
Dairy bars
Restaurants, carry -out
P
P
Bars and lounges
-
-
Snack shops
Drive-in restaurants
S
P
P
Bottle clubs
-
Food service, institutional
I
-
Theaters, dinner
S
A
Miscellaneous Retail
r—I
j
SIC (CODE)
EATING AND DRINKING PLACES
5812 Eating Places
Establishments primarily engaged in the retail sale of prepared food and drinks for on -
premise or immediate consumption. Caterers and industrial and institutional food service
establishments are also included in this industry.
Automats(eating places)
Hamburger stands
Beaneries
Hot dog (frankfurter) stands
Box lunch stands
Ice cream stands
Buffets(eating places)
Industrial feeding
Cafes
Lunch bars
Cafeterias
Lunch counters
Carry -out restaurants
Luncheonettes
Caterers
Lunchrooms
Coffee shops
Oyster bars
Commissary restaurants
Pizza parlors
Concession stands, prepared
Pizzerias
food (e.g., in airports
Refreshment stands
and sports arenas)
Contract feeding
Restaurants
Dairy bars
Restaurants, carry -out
Diners(eating places)
Restaurants, fast-food
Dining rooms
Sandwich bars or shops
Dinner theaters
Snack shops
Drive-in restaurants
Soda fountains
Fast food restaurants
Soft drink stands
Food bars
Submarine sandwich shops
Food service, institutional
Tea rooms
Frozen custard stands
Theaters, dinner
Grills(eating places)
25
July 12, 1994
Attorney Dill introduced Gene Winne, 2096 Windward Way, who
stated that he represents the consensus of the concerned residents
of the Moorings. He emphasized that the issue this morning is that
supermarkets are not listed anywhere in the Land Development
Regulations (LDRs) as permitted uses, while grocery stores are. He
believed that the Board will agree that supermarkets should not be
allowed in the CL District, pointing out that staff has ignored the
size of a supermarket when defining grocery stores. Mr. Winne
maintained that it would be good government to consider a
supermarket a special exception, consistent with Section 911.04 of
the LDRs.
Attorney Evans objected to references to the proposed site
plan, which is a separate appeal from the matter of supermarket vs.
grocery store.
Chairman Tippin stated that the point was well taken but that
we would proceed the best we can, noting that it is hard to
separate the two.
Mr. Winne continued presenting arguments against allowing a
supermarket on the subject site, i.e. increased hours of operation,
increased crime and need for more security, reduction in property
values, 18 -wheeler trucks unloading day and night, intensive
lighting, offensive odors from garbage handling, etc. He pointed
out that the developer does not own the subject property at the
present time; he only has an option to buy the property. The
Moorings property owners would like to buy the property from the
present owner.
Attorney Evans again objected to Mr. Winne' s references,. to the
site plan issue.
Mr. Winne concluded by emphasizing that you do not have to be
a lawyer or be on the County Planning staff to understand the
simple difference between a grocery store and a supermarket.
Attorney Dill referred to the following letter received from
The Progressive Grocer which is part of today's backup material
(Page 42). He understood this magazine is funded by large
supermarket chains, and felt the letter is self-serving and does
not offer an objective opinion:
26 92 8OC)
July 12, 1994
�Sftmfold Fanan
Stern AX0, cr06M
Rai) 325-3500
wol�irhF.Ner A1edr
The Megersie of Supemeebirg
June 6, 1994
Tom Vincent
Halvorsen Development Corp.
1900 Glades Rd.
Suite 260
Boca Raton, Fla. 33431
Dear Tom:
Per our conversation, let me clarify how the food distribution industry defines
grocery stores and supermarkets. Grocery stores is the umbrella term for any
type of food store that sells food and non-foods items, including a mix of canned
and packaged goods, along with perishables items. A supermarket is defined
as any grocery store with at least $2 million in annual sales -that feaU= self-service
and a full line of groceries, non-foods and perishables departments.
In other words, all supermarkets are, by definition, grocery stores.
Keep in mind that these definitions are determined by industry consensus, including
top executives of major chains and wholesalers, trade press editors, as well as
representatives from associations such as the Food Marketing Institute, the National
Grocers Assn. and the National -American Wholesale Cmocers' Assn. This ensures that
we are all on the same page when we are talking about different types of stores.
The attached pages may help clarify the situation frather. As you can see on the table
showing 1993 grocery industry sales, "All grocery stores" is the topline number, with
136,000 stores. "Supermarkets" make up one segment of grocery stores, with the others
being convenience stores, wholesale club stores and other stores (which include mom_
and -POP stores, delis, etc.). I have also included a page of published definitions from
Progressive Grocer's 1994 Marketing Guidebook.
Feel free to call me if you have questions. My direct line is 203-977-2923.
yours,
Priscilla Donegan
Managing Editor
July 12, 1994
27
M M
_I
Attorney Dill next introduced Ronald Cotterill, a Professor of
Agriculture Economics and the Director of the Food Marketing Policy
Center at the University of Connecticut, who gave the following
presentation. (Exhibit E)
AFFmAyrr OF PROFESSOR RONALD W. COTTERILL
STATE OF CONNECTICUT )
COUNTY OF TOLLAND )
RE: Appeal of Indian River County Planning and Zoning Commission Staff
determination that Supermarkets and Grocery Stores are synonymous and an
economic analysis of the Sea Mist Shoppes Proposal.
I, RONALD W. COTTERILI, being duly sworn, state:
1. That I am the Director of the Food Marketing Policy Center and a Professor of
Agricultural Economics at the University of Connecticut. I am the Executive
Director of an International Food Marketing Research consortium that includes
research economists from more than 22 universities in the U.S., Canada, the
U.S.D.A., the E.P.A., the F.D.A., and the General Accounting Office of the U.S.
Congress. I have written numerous books, journal articles, reports and papers on
the organization and performance of food industries. Food retailing is my special
area of expertise. Among other projects I have contracted with the Bureau of
Census to obtain special data to analyze supermarkets and grocery stores in all
standard metropolitan areas in the U.S.' My curriculum vita is attached to this
Affidavit as Exhibit "A".
2. The Moorings Concerned Residents has requested that I, a) explain exactly how
the Standard Industnal Classification (SIC) Code defines food stores including
grocery stores and supermarkets; b) define and determine whether supermarket
and grocery store are synonymous terms and c) determine whether, from an
economic perspective, the proposed Sea Mist Shoppes Development violates the
Indian River County Zoning Code.
3. The basis for my conclusions includes: my prior research and knowledge of the
food retailing industry, a set of documents (listed in Exhibit "B") furnished by
Moorings Concerned Residents and their retained legal counsel, Warren W. Dill,
trade and government publications, interviews with Bureau of Census staff, and
market area data for Vero Beach and Indian River County assembled under my
direction by Mr. Gene Winne and Mr. John W. Zilg of Moorings Concerned
Residents.
'Andrew W. Franklin and Ronald W. Cotterill, "An Analysis of Local Market Concentration
Levels and Trends in the U.S. Grocery Retailing Industry", Food Marketing Policy Center Research
Report No. 19, University of Connecticut, May 1993, 108 pages.
28
July 12, 1994
BOOK
4. After reading the documents in this matter, and analyzing all the information
available to me I conclude as follows:
a) The Bureau of Census has created and maintains the SIC Code.
b) The Bureau of Census SIC Code is a complex multi level classification
system that in its most detailed form defines "grocery stores" and
"supermarket" as distinct and mutually exclusive categories and uses. In
other words, supermarkets and groceries are not synonymous terms in the
SIC Code, nor can they be considered to have similar characteristics for
purposes in urban planning.
c) The Indian River County Planning Staff inappropriately applies a 1960
conceptual nation of supermarket and neighborhood (shopping) center
(reproduced in this Affidavit as Exhibit "D') to the supermarket of today.
If correctly applied the result would be the permissibility of only very small
convenience and or specialty oriented supermarkets. As a general class of
retail activity supermarkets should not be a "permitted use"x in the Limited
Commercial (CL) zoning district.
d) Given the Indian River County Zoning Regulations for "Limited
Commercial" land use areas, specifically the requirement that a proposed
development "accommodate the convenience retail and service needs of
area residents, while minimizing the impact of such activities on any
nearby residents" and the general purpose and intent for Commercial
Districts... "to promote the economic well being of the county ... and
ensure commercial development compatible with existing and proposed
development," (Section 911.10 LDRs) the proposed Sea Mist Shoppes
violates the Indian River County Code.
5. In a letter to Mr. Warren W. Dill, dated May 9, 1994, Indian River County
Planning Staff states 'Me SIC (Standard Industrial Classification) treats grocery
stores and supermarkets as synonymous uses, giving the two words the exact same
classification (Category 5411)." To determine exactly how the Bureau of Census
defines "grocery store" and "supermarket" and how they classify them in the SIC
Code, I contacted Mr. Richard Graham, Assistant Chief, Cross Industries Branch,
Bureau of Census, Washington, D.C. and discussed the issue with him. Mr.
Graham faxed me the relevant page from the 1992 Industry and Product
Classification Manual (p. 274) and a copy of the actual survey form that Census
sent to food retailers in the 1992 Census. The entire fax is attached as Exhibit
"C".
6. The SIC code is a complex multi level classification system that in its detailed
form defines grocery stores and supermarkets as distinct mutually exclusive
categories and uses. Indian River County Planning Staff is correct when they state
=In the Limited Commercial "CL" zone, supermarkets come in too many formats and sizes,
and can adopt too many very different merchandising strategies to infer reliably that a supermarket
meets the requirements of the Indian River County Zoning Code.
29
July 12, 1994
r � �
that grocery stores are classed as SIC 5411 (See page 274 reproduced in Exhibit
"M; however, they are not correct when they state that category 5411 is
synonymous with supermarkets. The four digit category has four components:
convenience food stores/no gas (SIC 541120), convenience food stores with gas
(SIC 541130), delicatessens (SIC 541140) and grocery stores (SIC 541110). Thus
the four digit industry "grocery stores" has a six digit store type with exactly the
same name: "grocery stores". Those six digit grocery stores are mutually exclusive
from delicatessens and convenience stores. Just as all grocery stores are not
warehouse stores, all grocery stores are not supermarkets. Moreover the
definition of the six digit "grocery store" given in the industry and product
classification manual, as reproduced in Exhibit "C" is:
These are retail stores commonly known as supermarkets, food stores, grocery
stores and warehouse stores, which are primarily engaged in the sale of all kinds
of canned foods and dry good, other packages or in bulk, such as tea, coffee,
spices, sugar, flour, fresh fruits and vegetables. They may also sell fresh
and/or frozen meats, fish, poultry, eggs, and bakery and dairy products.
Grocery stores, with or Supermarkets
without fresh meat -retail Warehouse stores
Food market -retail
One can see that even at the six digit level where one has winnowed convenience
stores and delis out, the "grocery store" category still includes separate store types,
e.g. grocery stores, with or without fresh meat, supermarkets and warehouse
stores. Moreover the Census definition strictly speaking contains an error. The
first sentence should read "... grocery stores or warehouse stores." In fact if one
examines the 1992 Census of Retail Trade - Food Survey Instrument (Exhibit
"C' , item 7 asks the retailer to identify an exact six digit SIC store type and
among the choices are "Grocery Store - SIC 541111" and "Food Supermarket -
SIC 541112". So the SIC Code in its most detailed form defines supermarkets
and grocery stores as mutually exclusive and distinct use categories. I conclude
that the SIC classification system at no level of aggregation, considers grocery
stores to be synonymous with supermarkets.
7. Note that the Bureau of Census does not define a supermarket. The accepted
industry definition is a store that carries at least fresh meat, fresh produce and
fresh dairy products as well as dry grocery products and is above a specified sales
volume. Progressive Grocer requires annual sales of more than 2 million, but has
not adjusted this cutoff for inflation over the past 15 years. USDA has done the
adjustment and uses a 3.3 million (1992 Dollars) cutoff.' A.C. Neilsen, a leading
Market Research Group, uses a 4.0 million dollar cut off. More than scale is
involved when a supermarket increases in size, product mix changes Analysts
commonly identify sit different supermarket formats: the conventional
supermarket (less than 30,000 square feet), the superstore (more than 30,000
square feet, with substantial nonfood and specialty departments), the combination
store (a superstore with a complete drug store in it, 60,000 - 80,000 square feet), a
warehouseAimited assortment supermarket (less than 30,000 square feet), a super
warehouse supermarket (over 30,000 square feet) and a hypermarket
(supermarket with over 40% nonfood over 100,000 square feet and often over
200,000 square feet).`
'Doris J. Newton, "Nontraditional Retailers Challenge the Supermarket Industry", Fob
Review, Vol. 16, No. 1, USDA, Washington D.C., Jan. - April 1993, p. 3.
°Ronald W. Cotterill, "Food Retailing: Mergers, Leveraged Buyouts and Performance" in L.
Duestch,lndustry Studies, Prentice Hall; Englewood Cliffs, 1993, p. 467-168.
411
July 12, 1994
MY
CONVENIENCE MAILING VERSUS GENERAL FOOD SHOPPING NEEDS
8. Consumers often frequent different types of supermarkets and grocery stores to
buy food. A shopper usually goes once a week or possibly less frequently to a
superstore, super warehouse store or hypermarket supermarket to make major
food purchases. Shoppers also have a need for limited grocery retailing near
where they live. Indian River County Zoning Regulations recognize this. The
Limited Commercial (CL) District allows "restricted commercial activities... to
accommodate the convenience retail (my emphasis) and service needs of area
residents". (Sec. 911.10) In the SIC Code and in food industry trade publications,
food stores that offer convenience retailing are clearly demarcated as convenience
food stores. These stores are not supermarkets. Based upon my knowledge of
this industry, other small grocery stores that are not supermarkets and small
supermarkets (less than 10,000 square feet) that specialize in service or high
quality specialty lines of meats or seafood or deli products also provide
convenience retailing for area, (as opposed to immediate area) residents. Such
stores are independent as opposed to chain store grocers. Independent grocers
know that their competitive advantage verses large supermarket chains such as
Publix, Albertson or Winn Dixie is precisely what the Indian River County
Zoning Code requires... restricted commercial (in this case retail) activity that
targets convenience food retailing and service needs of area residents.
9. This position is supported by the commercial facilities chart that planning
commission staff refer to (Exhibit "D') when that chart is placed in historical
context. The chart comes from 3rd Edition of Urban Planning and Design
Criteriapublished in 1982 and reproduces specification from a 1960 edition of
the Community Builders Handbook. According to this chart a neighborhood
shopping center offers a "sale of convenience goods and personal services". It's
service area has a 1/2 mile radius with 4000 minimum population. With 30,000 to
75,000 square feet it has a supermarket and drugstore as leading tenants with
another 3 - 18 stores and shops. In 1960 this description may have been
appropriate because the typical supermarket was under 10,000 square feet', and a
drug store was even smaller. Today the very same neighborhood center would be
anchored by a small independent supermarket (or grocery store with sales below
3.3 million). This charts delineation of the radius of area, 1/4 mile, is too small
for 1960 and today. Consumers regularly drive 3 -4 miles to this type of shopping
center.' Consumers regularly drive as far as 10 - 15 miles to shop at large
supermarkets (superstores, combination stores or hypermarkets).
'National Food Commission, Food Retailing Technical Study, No. 7, U.S.G.P.O.:
Washington, 1966, p. 191.
"Che service area radius for the community and regional shopping centers in this chart are
also inexplicably low. Consumers drive more than 4 miles to a 1 million square foot shopping mall.
July 12, 1994
M
31
M
BOOK 92
M
THE SEA. MIST SHOPPES PROPOSAL
10. The Sea Mist Shoppes Development is essentially a strip shopping mall anchored
by a 27,860 foot Publix supermarket. Publix is a very successful, privately held,
supermarket chain that conducts business in many Florida cities. No other chain
in the U.S. has as many dominant (very large market shares) positions in local
markets as Publix.' The chain's merchandising, store format, and general
marketing strategy are not consistent with the Indian River County Limited
Commercial zoning designation with its requirement to serve convenience retail
and service needs and to serve area residents needs. The Publix Southeast
Division serves the Miami marketing area which includes Indian River County.'
The division operates 149 supermarkets. That total includes 21 combination (very
large food and drug) stores, 111 super stores (over 30,000 square feet) and only
17 conventional supermarkets. These Publix stores average 12 checkout stations
per store. Although Progressive Grocer does not give the average size of these
Publix stores, the Winn Dixie, Miami Division operates a much larger proportion
of conventional supermarkets (94 out of 136 supermarkets with all others being
superstores), and its supermarkets average 39,000 square feet. Publix stores must,
on average, be much larger. The proposed Sea Mist Publix is clearly smaller than
nearly all Publix supermarkets operating in the Miami area, but as part of the
chain store system it will, for efficient management and operation, be essentially
operated like the larger Publix stores. The convenience retail and service needs of
the area residents will not be satisfied. This type of supermarket is designed to
satisfy major food shopping trips for bulky and storable food products and
nonfood products, as well as fresh, perishable, and specialty food and service
items. It will not satisfy the quick in and quick out convenience service needs of
area residents.
11. The site location characteristics of this proposal are highly questionable from an
economic perspective. Sea Mist Shoppes essentially locates a small superstore or
very large conventional supermarket on a long narrow island at the south end of
residential development in the county. The trading area for this supermarket, is
very limited by water to the east and west, and must extend several miles North
and South, outside of the South Beach "area", to capture sufficient customers.
According to the 1990 U.S. Census South Beach area population is 2,856. The
Indian River County Comprehensive Plan estimates total resident and seasonal
population for the South Beach area to be 4,083 in 1990 and 4,707 in 1995.' The
fluctuation in Barrier Island population is probably significantly greater than the
difference between these numbers with the summer (6 months) population being
much lower than the census population estimate as legal resident "snow birds" go
north for the summer. Consequently the South Beach "area" does not come close
to providing a sufficient customer base for the proposed supermarket. Given the
'Metro Market Studies, Grocery Distribution Guide: 1994 Edition, Wellesley Hills, Mass.,
1994.
'Progressive Grocer, 1994 Marketing Guidebook, Trade Dimensions: Stanford, CT., 1993 P.
338346. The following data in this paragraph are from this source.
91ndian River County Comprehensive Plan, p. 32.
32 BOOK fF
July 12, 1994
I
immediate access by two bridges to several much larger supermarkets on the
mainland and a small upscale merchandised grocery store, the Village Market (on
the beach near the north municipal/county line), it is very unlikely that residents
north of South Beach will travel to the proposed supermarket. The only
economically rational addition to the trading area therefore lies to the South.
Immediately South of the site is Round Island Park. The St. Lucie County portion
of the Barrier Island below it is less developed then South Beach at this time. Its
current population is approximately, 2,300.t0 Although the area is rapidly growing
the population is also subject to violent seasonal fluctuations.
12. Until future growth occurs these facts lead me to conclude that the 27,860 sq. ft.
supermarket may very well operate at low capacity rates, thereby incurring high
operating costs per unit, unacceptable return on investment and higher prices to
consumers without enhanced retail services or quality products. This result
violates the Indian River County Zoning codes purpose and intent.. "to provide an
efficient use of land ... promote the economic well being of the County and ensure
commercial development compatible with existing and proposed development".
13. The structure of the supermarket industry in Vero Beach also strongly suggests,
that competition among the very few and very large local market share firms that
operate in Vero Beach will be significantly lessened to the detriment of all Vero
Beach residents. Progressive Grocer indicates that Indian River County is served
by only 10 supermarkets and 6 of the 10 had sales above 12 million dollars in
1993. Food sales in the County totaled $200 million dollars in 1993." Using store
identity and square footage estimates provided by Concerned Mooring Residents
for the 8 supermarkets located in Vero Beach and the South/Central portion of
the county, I have computed the following market shares:
Vero Beach Supermarket Market Structure
Publix (4 stores, 137,632 square feet) 52.1%
Winn Dixie (2 stores, 59,320 square feet) 22.4%
Albertson (1 store, 45,000 square feet) 17.0%
Keen's (1 store, 22,500 square feet) 8.590
100%
In comparison to other cities in Florida and the U.S. this is a very concentrated
market with Publix as the dominant firm. Supermarket chain in such cities can
price in an oligopolist, i.e., non competitive fashion.' Adding another Publix and
locating it as a geographic monopoly on the Barrier Island does not promote
1'Estimate provided by Gene Winne, 6/20/94, telephone conference.
It op.cit., p. 339
12An oligopoly market is one served by a few, large firms, see for example: Leonard Weiss,
Concentration And Price, MIT Press: Cambridge, 1989, or Cotterill. op.cit.
33
July 12, 1994
BOOK
M -
competition and the economic welfare of Vero Beach residents. Currently the
impact of the highly concentrated market structure on prices may be mitigated by
the location of four different company supermarkets (1 Publix, I Winn Dixie, 1
Albertson and 1 Keen's) at or very near the bridge entrance roads in downtown
Vero Beach. As Island residents come onto the mainland they can patronize the
store that offers the best value that week. Locating a Publix on the Island may
not only raise prices there, it will raise prices on the mainland because retailers
there will no longer compete for Island business. u
14. For these reasons I recommend rejecting the Sea Mist Shoppes Proposal.
Respectfully Submitted,
G �
Ronald W. Cotterill, Ph.D.
STATE OF FLORIDA
COUNT OF INDIAN RIVER
Sworn to, and subscribed before me this 1/day of July, 1994, by _Ronald W. Cotterill
who produced C'onntxri�-o,— Aas identification.
we /! vw tP /3'7 /
WAMM W. ILL
cakfam
oases: sn.rr,tess
09MMTJMN"rMMW*&dM
12�f1a�l�'� ✓/
Notary Public
My Commission Expires:
My Commission No. is:
"David Levy and James Reitzes, "Product Differentiation and the Ability to Collude; Where
Being Different Can Be an Advantage", Antitrust Bulletin, Summer 1993, p. 349 - 368. Locating a
Publix on the Island is Spatial or Geographic "Product Differentiation".
34
July 12, 1994
600K
_I
KOK 92 *11-80;5
Attorney Dill next introduced Robert R. Swarthout, a city
planning consultant, who stated that he has been a professional
city planner for 23 years and is a member of the American Institute
of Certified Planners. Mr. Swarthout reviewed the unlisted uses
in 911.04-2B. He stressed that there is nothing in the Zoning Code
to prompt staff to interpret the SIC that grocery stores are
supermarkets. He reviewed traffic generation volumes by square
foot basis; the kinds of traffic generated at various times of the
day; parking requirements; and compatibility to surrounding land
uses. Mr. Swarthout projected slides of the back of a supermarket
showing loading platforms, cardboard recycling bales; and trucks
standing in the alley. He stressed that compatibility is a big
issue in this matter, giving the example of the impact this will
have on the private residences on Bowline Drive that will face the
loading area of the proposed supermarket.
After a very lengthy presentation, Mr. Swarthout concluded by
emphasizing that supermarkets do not belong in neighborhood areas
with Limited Commercial zoning.
Attorney Dill announced the conclusion of the presentation of
their appeal.
Attorney Ralph Evans, representing Halvorsen Development
Corporation, began his presentation by commenting on two issues:
1) The standing of the appellant in this hearing and their
obligation today to demonstrate to this Board that they have a
substantial interest affected by the decision of the Community
Development Director, and 2) The legal requirements in this county
for appealing a decision or lack of a decision of the Planning &
Zoning Commission. Attorney Evans summarized the arguments
presented at the P & Z Commission meeting.
Attorney Evans introduced Henry Skokowski, a practicing
planner certified with the American Planning Association. Mr.
Skokowski stated that he has been in practice for 17 years and has
a bachelor's degree in architecture, a master's degree in urban
design, and his specialty is city regional planning. In offering
additional support to staff's thorough comprehensive review and
conclusion that a supermarket is a grocery store, Mr. Skokowski
made the following arguments:
35
July 12, 1994
M M M
1) Under the Bureau of Revenue's Florida Retail Sales and Use
Tax code classifications, a grocery store is classified
01 under food and beverage group, and tax imposed under
that category applies to small stores, big stores,
supermarkets, all types of stores.
2) The Community Builder Handbook Series says that a
supermarket is the anchor tenant in community centers.
3) There is no specific definition in the County's LDRs for
a grocery store or for a supermarket.
4) The 1993 issue of Dollars and Cents of Shopping Centers
says that a neighborhood center provides for the sale of
daily living needs, convenience goods, such as food,
drugs, hardware, and personal service. A supermarket is
the principal tenant of this type of center.
5) The publication Urban Planning and Design Criteria says
that the leading tenants of the neighborhood center are
supermarkets and drug stores. It also says the site area
is four to eight acres and that the gross floor area is
30,000 to 75,000 square feet.
6) Grocery store is a category term that is used throughout
IRC's Zoning Code. There is no distinction in the CL
district. No square footage limitation can be found
anywhere in the Code that defines a supermarket or a
grocery store.
Attorney Evans next introduced Tom Vincent, vice president of
Halvorsen Development who made the following points:
1) There is no specific planning data that says that size
distinguishes or establishes the difference between a
grocery store and a supermarket.
2) Controls within the zoning regulations and LDRs control,
monitor, and create compatibility for any particular use,
permitted use, in a given zoning district.
3 ) The test for the CL district speaking to meeting the needs
of the area residents is not subjective. There is no
criteria in the Code that clearly establishes and defines
how you meet the needs of the area residents.
4) There is nothing in the Code saying that store hours have
any relationship to the classification of a particular
use.
5) 18 -wheeler trucks service smaller units just as often as
they do the larger units. In fact, a lot of combination
trips are saved by the larger delivery trucks.
6) Most stores built today are state of the art units and do
not look like the photographs presented by the appellant.
7) There is a significant separation between the back
of the proposed commercial use and the front
yards of a few of the private residences.
36 r
July 12, 1994
I
Attorney Evans next introduced applicant Ron Ferrin, who
advised that the tenant, Publix, has gone to great lengths to
introduce a new prototype store that would allow them to operate
within 27,000 square feet. They have spent a lot of money to try
to make this site compatible and appear consistent with the
surrounding community.
Director Keating summarized at length the thorough,
comprehensive review this matter received from the County Planning
staff.
Walter Bush, 1935 Mooringline Drive, questioned the tests used
by staff in determining the needs of the servicing the immediate
neighborhood. He felt that based on their traffic report the
shopping center will attract people outside the community.
Therefore, it does not meet that test.
Tom Buchanan, 1150 Reef Road, questioned whether a grocery
store sells wine and beer, and Director Keating replied that beer
and wine are grocery store items, in his opinion.
Halda Groveman stated she did not live in the Moorings, but
she was interested the difference between supermarkets and grocery
stores. She listed an extensive number of non -grocery items sold
in today's supermarkets. She emphasized that she and her husband
came to Vero Beach because they were told it was a good stable
community, that the growth was managed, and that it was safe. She
wished to see it kept that way.
Ralph Richards, 955 Starboard Drive, stressed the
compatibility issue. He pointed out that Publix's hours are from
7:00 a.m. to 10:00 p.m. every day of the week, and trucks arrive
prior to 7:00 a.m. He did not believe that is compatible with the
neighborhood.
Ann Clark Hickman, 2185 Via Fuentes, stressed the safety
factor of big trucks coming in at all hours. She urged the Board
to keep the barrier island pristine and beautiful for everyone who
will come after us. She didn't have anything against Publix; she
just didn't want to live near a supermarket.
Lloyd Smiley, resident of the Moorings, read aloud a letter
published in the newspaper objecting to the planned monstrous
Public Market and related stores in the Moorings.
37
July 12, 1994
-I
Matthew McCullen, 1001 Bay Road, emphasized that a supermarket
is out of scale in physical size for this site and this community.
He stressed that the proposed supermarket is vigorously opposed by
the vast majority of residents and property owners of the entire
south beach area.
Nancy Offutt, government affair coordinator for the Vero
Beach/Indian River County Board of Realtors, expressed their
concern that whenever a use is going to be deleted from a zoning
classification, the property owners and the public should be
officially notified and that the procedure is strictly followed so
that they can rely on the Comprehensive Land Use Plan and its
amendments. If the Commission's decision today in effect does
remove supermarket or any use from the CL zoning district, the
Board of Realtors asks that the decision be subject to the formal
procedure for changes in the LDRs through public hearings and
public notice.
Joseph Hickman, resident of the Moorings, pointed out that on
chart 5411 presented by staff, grocery store and supermarket are
listed separately. He felt that if they are listed separately,
they cannot be the same.
Attorney Dill asked and was granted 3-5 minutes of rebuttal
time, during which he and Professor Cotterill summarized their
arguments in appeal of staff's determination that a grocery store
is a supermarket.
Commissioner Eggert felt very deeply that there is a
difference between a grocery store and a supermarket, as we know it
today. She felt this was reflected in earlier talks back in 1982
when our Comprehensive Plan was being prepared. Under the retail
sales general section of the Land Development Regulations, it
speaks to General Commercial (CG). She recalled that we talked
about supermarkets, department stores and variety stores belonging
in CG. Back then, it was called Light Commercial, but now this is
called Limited Commercial in a neighborhood. We wanted something
there that had less impact than anything that would go into General
Commercial, something that would maintain the environmental
integrity of that neighborhood. Having worked and lived all over
this country she didn't know of any place where they don't
distinguish between grocery stores, supermarkets and convenience
38
July 12, 1994 Boa
BOOK 'PAGE
stores. She understood the use of the Standard Industrial
Classification (SIC) code. One of the hardest things she has found
in serving on the Planning & Zoning Commission and as a County
Commissioner is the Department of Transportation telling you
exactly where to put median cuts. It doesn't matter what is along
the edge. They tend to stuff the people into the criteria; they
don't fit the criteria to the people. This is becoming increasingly
frustrating.
Commissioner Eggert believed there is a big difference in
intensity between a supermarket and a grocery store. She felt
Director Keating should have chosen variety store rather than
grocery store as she has always defined grocery store and as she
assumed it was continuing to be defined in our Indian River County
Code. A variety store is a permitted use in General Commercial
only. For that reason she would move that Director Keating did
fail in reviewing this in several of the criteria and move to
uphold the appeal.
COMMISSIONER EGGERT'S MOTION TO UPHOLD THE
APPEAL THAT A SUPERMARKET NOT BE ALLOWED IN
LIMITED COMMERCIAL DIED FOR LACK OF A SECOND.
In response to questions by Commissioner Adams, Director
Keating explained that Sam's is classified as a department store,
which is an administrative permit use in the CL Zoning District and
limited to 40,000 square feet. Director Keating advised that there
is no size limitation for department stores in a CG District.
Department stores attract customers from a much larger area and
they sell much more than convenience goods and personal services.
He did not feel Sam's primary focus is to sell food.
Commissioner Adams asked if trip generations were similar
between grocery stores and department stores, and Director Keating
said he would check with Traffic Engineering.
Commissioner Adams had mixed feelings on this whole episode,
and agreed with Commissioner Eggert that supermarkets have grown to
be big grocery stores. She felt it is just a matter of semantics
and that a good debater could win it either way. However, we have
been dealing under the assumption all these years that they are the
same and we have allowed the same use in our LDRs and have approved
permit applications based on that. This may be the test case that
says maybe it's time to split it out but the question is do we
split it before or after, and that is where we are having a
problem.
39
July 12, 1994
Director Keating advised that Public Works Director Jim Davis
is checking the ITE trip generation manual. Chapter 952 of the
LDRs lists trip rates by the number of uses based on some studies
done in Florida. We do not specifically call out department stores
but we have commercial of various sizes. Generally, as a
commercial establishment size increases, the trip generation rate
per 1,000 square feet decreases. The trip rate per 1,000 square
feet is substantially higher for the much smaller convenience store
use.
Commissioner Eggert understood that Director Keating was
referring to convenience store versus supermarket or grocery store,
and Director Keating stated that was correct. There is no grocery
store delineation in Chapter 952, and he didn't think there is any
in the ITE trip rate.
Commissioner Adams noted that Attorney Warren Dill offered
that there is no square footage definition for the terms
supermarket or grocery store, and she inquired if Professor
Cotterill was aware of one.
Professor Cotterill, analyst from Connecticut, stated that
anything below 10,000 square feet would be a grocery store.
Attorney Evans pointed out that under the County's Code
anything below 28,000 square feet is a grocery store, and
Commissioner Adams noted there are houses in the Moorings with more
square footage than that.
Tom Vincent, Vice President of Halvorsen, returned to the dais
and pointed out that there is no documented, substantial evidence
to suggest or imply that there is a factual square footage
threshold between the two, which is obviously the cause of this
debate. He felt it is important to understand that when the ITE
manual refers to a supermarket line item, it typically is used for
a free-standing site. All the other categories that Director
Keating referenced for commercial square footage thresholds of
100,000 to 200,000, or 200,000 to 400,000, etc., are established on
the concept that most commercial food store/shopping center
situations are multiple use centers where people can shop at
several retail locations within the center rather than going to
several isolated commercial uses. In other words, you eliminate or
mitigate multiple trips with a single, free-standing store.
40
BON UZ 'a",1814
July 12, 1994
J
Commissioner Macht understood that we have been approving
supermarkets under the general rubric of grocery stores for years.
Based on precedent and in order to be consistent with the law, he
felt the conclusion we should come to is whether or not it is in
the best interest of the people in question. He felt Attorney Dill
has made a very compelling argument, and perhaps we ought to make
a differentiation. However, we have to make our decision based on
current law that is in the best interest of all of the citizens of
Indian River County. Commissioner Macht felt we are going to have
to find that a grocery store is a supermarket, and a supermarket is
a grocery store. One is a manifestation of the other and he didn't
see how we can escape that.
MOTION WAS MADE by Commissioner Macht,
SECONDED by Commissioner Bird that the Board
deny the appeal filed by Attorney Warren Dill.
Under discussion, Commissioner Bird thought the dialogue today
has been excellent and that all of the expert testimony was well
stated. However, he felt the timing of it is wrong. He felt that
if we recognized there was a problem between grocery stores and
supermarkets, or if we had realized that by lumping them together
we allowed them to be a permitted use in a Limited Commercial
zoning district, we could have addressed the problem numerous times
over the past few years. We could have addressed the problem
during the numerous public hearings on the adoption of our
Comprehensive Land Use Plan and the Land Development Regulations,
and certainly when we adopted the zoning that presently exists on
that property. In that scenario, and according to staff's
interpretation, it did allow a grocery store or supermarket to be
built in a Limited Commercial district. Commissioner Bird believed
that if anyone in this room over the last year or two, or any of
the attorneys, or any of the citizens of this county would have
called the Planning Department and expressed their concern about
that piece of Limited Commercial property there in the Mooring's,
they would have been told that it was possible for someone to get
site plan approval for a supermarket of this size. Although it
wasn't built, a site plan was approved in the past for a grocery
store/supermarket of approximately this size (Food Lion). It was
never built and the site plan approval expired. Commissioner Bird
strongly believed in private property rights and upholding the
ordinances and the land development regulations that have been
adopted in this county. Based on the date that this application
41
July 12, 1994
I
was filed and the laws that were in place at that time, he felt we
should uphold staff's determination and deny the appeal.
Chairman Tippin concurred with Commissioner Bird for most of
those very same reasons. Because it is an allowed use, he.would
support the Motion. However, times do change and he felt we must
revisit this matter.
Commissioner Adams also felt there is a difference, but the
Board has to go with the way the regulations stood at the time the
application was submitted. She also agreed that this allowed use
should be readdressed.
Commissioner Eggert appreciated the other Commissioners'
feelings on this, but she pointed out that this matter had been
discussed for a number of years and somehow managed to slip
through. She believed that a different choice could have been made
here as to what category a supermarket falls under, that is, a
supermarket as we know it today.
THE CHAIRMAN CALLED FOR THE QUESTION. The Motion
to deny the appeal of the determination that
"supermarkets and grocery stores are like uses as
applied to the IRC LDRs" passed by a vote of 4-1,
(Commissioner Eggert dissenting).
The Chairman announced that the time being 1:30 p.m. we would
take a one hour lunch break and reconvene at 2:30 p.m.
42
806W E;
July 12, 1994
BOOK 9 ` L -E
At 2:30 p.m., the Chairman reconvened the July 12, 1994
meeting of the Board of County Commissioners with the same members
present.
PUBLIC DISCUSSION -APPEAL BY HALVORSEN DEVELOPMENT
CORP. OF A P&Z COMMSSION DECISION TO DENY SITE PLAN
APPROVAL FOR PROPOSED SHOPPING CENTER ON AIA AND
MOORINGLINE DRIVE
Chairman Tippin asked everyone intending to testify today to
please stand and be sworn by County Attorney Charles Vitunac.
Planning Director Stan Boling presented staff's recommendation
for approval of the site plan submitted by Halvorsen Development
Corporation:
TO: James E. Chandler
County Administrator
• _ VI I N H CE:
ober M. Recti , AI
Community De6vel men irector
THROUGH: Stan Boling, AICP
Planning Director
FROM: John W. McCoy, AICP�
Senior Planner, Current Development
DATE: July 61 1994
SUBJECT: An appeal by Halvorsen Development Corporation of a
Planning & Zoning Commission Decision to Deny Site Plan
Approval for a 46,560 sq.ft. Shopping Center at the
Southeast Corner of S.R. A -1-A and Mooring Line Drive.
It is requested that the data herein presented be given formal
consideration by the Board of County Commissioners at its special
meeting of July 12, 1994.
This is the second of two appeals related to the proposed Sea Mist
Shoppes Development.
BACKGROUND:
Halvorsen Development Corporation, through its agent (Attorney
Ralph Evans), has appealed a decision by the Planning & Zoning
Commission to deny a major site plan application to develop a
46,560 sq. ft. shopping center at S.R. A -1-A and Mooring Line Drive
(see attachment #1). The appeal alleges that the Planning & Zoning
Commission failed to approve a plan that, with conditions
recommended by staff, meets approval criteria. The applicant
requests that the Board of County C issioners overturn the
Planning and Zoning Commission's denial and approve the site plan
application. In accordance with site 0Xan appeal procedures,
43
July 12, 1994
(reference LDR Section 914.13) the Board of 1ounty Commissioners is
now to consider the site plan application and is to approve,
approve with conditions, or deny the site plan application.
*Planning and Zoning Commission Review of the Old (May 12th) Site
Plan
At its regular meeting of' May 12, 1994, the Planning and Zoning
Commission considered an earlier submittal, voting 2 to 3 on a
motion to deny the application (see attachment #2). Since a
majority of 4 votes is required for the Planning and Zoning
Commission to take action, the earlier site plan was deemed denied.
Subsequently, the developer, in accordance with the LDAs, appealed
the Commission's action to the.Board of County Commissioners.
Although the Board waad�ss scheduled to hear that appeal at its June
21, 1994 regular meeting, the developer waived his right to have
that appeal hearing within 30 days. Therefore, the June 21, 1994
hearing was canceled. Subsequent to waiving his rights to appeal
the decision on the "May 12th" site plan, the developer submitted
revised plans which the Planning and Zoning Commission considered
at its special meeting of June 28, 1994.
• Impetus for a New (Revised) Site Plan
At the May 12th Planning and Zoning Commission meeting,
representatives of The Moorings Property Owners Association raised
• questions regarding several technical site plan issues, including:
project open space, project driveway internal separation distances,
and parking and loading space provisions. Prior to the -May 12th
meeting, each of these specific issues had been discussed in TRC
deliberations and had been considered by the departments
responsible for reviewing these issues. In fact, planning staff,
in its TRC discrepancy letter, requested verification from the
applicant that the plan met the 25% open space requirement, and
public works staff raised the driveway internal separation distance
issue. At the May 12th meeting, concerned residents and the
applicant, as well as planning and public works staff, discussed
these issues.
After the May 12th meeting, planning staff requested that the
applicant verify and document that, as indicated on the original
site plan, the site plan satisfies the applicable 25% open space
requirement. Public works staff also requested that the applicant
document how the site plan satisfies the LDR driveway internal
separation distance requirements.
In response, the applicant revised the original site plan to:
a. Provide more green open space area and to document, with
working -drawing calculations, that the project -'satisfies the
25% open space requirement; and
b. Increase the driveway internal separation distances and add a
third project driveway.
Upon receiving the site plan revisions, planning staff made a
determination that the changes were substantial enough to
constitute a "new site plan" and warrant a review by the Planning
and Zoning Commission. While this site plan is similar to the site
plan considered at the May 12, 1994 Planning and Zoning Commission
meeting, the County Attorney's Office has indicated that this site
plan must be treated as a new submittal by the Planning and Zoning
Commission and the Board of County Commissioners.
*Planning & Zoning Commission Action on the New (June 28th) Site
Plan
July 12, 1994
4
At its special meeting of June 28th 1994, the Planning & Zoning
Commission voted 3 to 3 to approve the new site plan (see
attachment #3). Since a majority of 4 votes is required for the
Planning & Zoning Commission to take action, this site plan was
deemed denied. Subsequently, the developer, in accordance with the
LDR's, has appealed the Commission's action to the Board of County
Commissioners.
BACKGROUND AND HISTORY OF PARCEL:
sZoning and Land Use Map History
The subject parcel is currently zoned commercial and was originally
zoned commercial as part of the initial Moorings Development plan.
From the late 1960s to the present, the subject property has
continuously been depicted as commercial on county zoning maps.
Although many surrounding parcels were rezoned from commercial to
residential in the 19701x, a few adjacent parcels are still zoned
CL (see attachment #5).
From the late 1960's to 1985, the subject property was zoned C1 -A
(restricted commercial), which is a zoning district that is similar
to the present CL district. Both districts allowed/allow
commercial uses such as grocery stores, restaurants, and many other
retail uses. In 1985, as part of a county -wide administrative
rezoning process, the subject property was rezoned from C1 -A to CL,
which is its current zoning. Also, it should be noted -that the
county's comprehensive plan land use map, first adopted in 1982,
has always designated the subject parcel as commercial. The
property is designated as commercial on the current comprehensive
plan land use map.
•Site Plan Proposal History
This site has been the subject of three previous site plan
applications, none of which proposed a grocery store/supermarket
over 11,000 sq. ft. in size. The first application was filed in
October 1986 and was not approved, due to a lack of response and
follow-through by the applicant. This plan proposal depicted
58,000 square feet of commercial building floor area and 23% open
space on site. (Note: Only 20% open space was required in the CL
zoning district until 1991, when the requirement was increased to
25%.)
The second application for major site plan approval was submitted
on January 27, 1988 and, after staff review, was approved by the
Planning and Zoning Commission at its regular meeting of March 24,
1988. The plan depicted 53,200 square feet of commercial building
floor area and proposed to provide 34% open space using a 2 story
design. Due to a lack of permitting and construction by the
applicant, this site plan approval lapsed on March 241 1989.
The third application for major site plan approval was submitted
August 18, 1989 and, after staff review, was approved by the
Planning and Zoning Commission at its -regular meeting of October
12, 1989. The plan depicted 60,000 square feet of commercial floor
area and proposed to provide 34% open space using a 2 story design.
This design was similar to the design approved as part of the
second site plan application. The approval of this application
expired October 12, 1990, due to failure of the applicant to obtain
a -building permit and commence construction.
PROPOSED DEVELOPMENT AND LOCATION:
Kimley-Horn and Associates, Inc. has submitted a revised major site
plan on behalf of Halvorsen Development Corporation to construct a
46,560 square foot shopping center at 2105 South S.R. A -1-A. The
submitted site plan is similar to the plan reviewed by the Planning
45
July 12, 1994
� a �
and Zoning Commission at its May 12, 1994 meeting. The subject
property is located at the southwest corner of Mooring -Line Drive
and S.R. A -1-A (see attachment #5) and is zoned CL, Limited
Commercial. Shopping centers are permitted uses in the CL zoning
district.
The subject site is cleared, with the exception of some scattered
trees on the site. The developer proposes to build a 46,560 square
foot shopping center which will consist of a grocery
store/supermarket, a retail area, and a --bank (see attachment #6).
Area residents have displayed a great deal of interest and concern
regarding the proposed development, and planning staff have
coordinated closely with area prdperty owners associations and
neighborhood groups regarding this project proposal from its
inception.
ANALYSIS:
1. Size of Site: 5.32 acres or 231,832 sq. ft.
2. Zoning Classification: CL, Limited Commercial
3. Land -Use Designation: C/I, Commercial/Industrial
4. Building Area (for the four proposed buildings):
Publix:
27,860
sq.
ft.
Retail:
10,700
sq.
ft.
Retail:
5,000
sq.
ft.
Bank:
3,000
sq.
ft.
Total:
46,560
sq.
ft.
Note: A sit down restaurant has been removed as a proposed
use.
5. Open Space:
Required: 25.0%
Provided: 25.2% (creditable)
Note: There is a difference between the creditable amount
(green area) and overall amount. The difference is the 2.5'
overhang area provided at parking spaces. The 2.5' is not
creditable towards satisfying the 258 open space requirement.
One of the items questioned by residents at the May 12, 1994
Planning and Zoning Commission meeting was the site plan's
open space percentage. Because of the questions, the
applicant re-examined the open space figure and found that,
contrary to previous information and "verification" offered by
the applicant, additional open space was required to,meet the
25% requirement.
The applicant has addressed this concern in the submitted
revised plans by reducing required parking area and converting
some previously proposed parking area to green area. The
reduction in the amount of required parking was achieved
through the elimination of a proposed sit-down restaurant.
This new open space area is located south of the stand-alone
retail building. Staff has requested that the applicant again
re -check the green area calculations for this project. Again,
the applicant has verified that the revised site plan meets
the 25% open space requirement.
46
July 12, 1994
800 l
The traffic impact= analysis and the proposed off-site traffic
improvements were reviewed and approved by the county's
Traffic Engineering Division.
6. Traffic Circulation:
-Overall Analysis: As required by the LDRs, the- developer
.submitted a traffic impact analysis performed by a
professional engineer (see attachment #9). This analysis,
which has been reviewed and accepted by the County Traffic
Engineer, assumes a "worst case scenario" of 47,500 square
feet of development including 2,300 square feet of restaurant
use (note: the site plan.depicts 46,560 square feet and no
sit down restaurant use).' According to the analysis, at
build -out (assumed to occur in 1995), the project would
generate 4,438 daily trips and 408 peak hour trips. Of the
total project trips, 57.9% would be pass -by capture trips from
vehicles already on the roadways. Thus, the new trips
anticipated from the project are 11868 daily trips and 172
peak hour trips. Based on existing traffic volumes and
estimated volumes resulting from the project, 1995 roadway
level of service conditions with project traffic were
analyzed. The analysis shows that SR A -1-A in and around the
project site and in the entire south beach area would meet a
"B" level of service (LOS) (see attachment #9). The LOS "B"
is two levels above the county's minimum acceptable peak
season/peak hour/peak direction LOS "D" standard.
-External: The revised plan proposes three -driveway
connections, two to Mooring Line Drive and one to Windward
Way. The driveway on Windward Way and the eastern driveway on
Mooring Line Drive are shown as full movement driveways. The
western driveway on Mooring Line Drive would prohibit out
bound left turns. The western driveway on Mooring Line Drive
is designed to handle employee and delivery traffic, and would
function to separate this type of traffic from store
customers. _
For northbound traffic on S.R. A -1-A, a left -turn lane would
need to be provided on S.R. A -1-A for traffic turning left
onto Windward Way. The existing 36' of pavement within the
Windward Way right-of-way would be restriped to provide 3
lanes of traffic, two eastbound and one westbound. This would
provide a left turn lane and a right -turn lane/through lane
for eastbound traffic.
For southbound traffic on S.R. A -1-A, there would need to be
a right -turn deceleration lane provided on S.R. A -1-A for
traffic turning westbound onto Mooring Line Drive. Also, the
pavement and the median within the Mooring Line drive right-
of-way would need to be modified to provide a median opening
for left turns into the proposed shopping center at two
points. A left turn lane would need to be provided on the
westbound segment of Mooring Line Drive by striping -out the
existing 26' of pavement for a left turn into the center and
through lane. An additional 4' of pavement would need to be
added to the eastbound segment of Mooring Line Drive to
complete a 24' wide segment, and the pavement would be striped
to accommodate a through/left-turn lane and a right -turn lane.
(Please see attachment #6 for a depiction of these required
traffic improvements.)
Residents who have reviewed the revisions have raised a
concern that the proposed additional median cut is spaced
closer than the 330' separation distance referenced in LDR
section 952.12(9)(b) (see attachment #8). The Public Works
47
July 12, 1994
Department, however, has indicated that the 330' dimension is
for traffic -way corridors (i.e. thoroughfare plan roads),
where the median has a traffic control function rather than an
aesthetic function.
Since Mooring Line Drive is classified as a local road and its
primary function is to provide access to adjacent lots and
tracts, it is the opinion of the Public Works Director that
the spacing of the second median cut is not regulated pursuant
to LDR section 952.12(9)(b) (see attachment #8).
Internal Traffic Circulation: The Windward Way driveway and
eastern driveway on Mooring Line Drive would provide customer
access to the site. The western driveway on Mooring Line
Drive would provide access to the site for delivery vehicles
and employees, thereby separating the high volume, high
turnover customer traffic from delivery and long term employee
parking. Delivery vehicles would enter the site through the
western driveway on Mooring Line Drive and exit through the
driveway on Windward Way. Internal driving aisles would
provide access to all of the parking spaces, loading areas,
and the drive through facility proposed for the bank. The
Traffic Engineering Division has reviewed the internal
circulation plan, including the truck routing, and -has found
that the internal traffic circulation plan complies with the
LDRs, including the internal driveway separation distances
referenced in section 952.12(8)3.
7. Off -Street Parking:
Required: 233 spaces
Proposed: 234 spaces
Tire stop waiver granted
Note: In the revised plans, the developer has removed some
parking spaces along with deletion of any proposed sit-down
restaurant use.
Pursuant to section 954.07(4)(d)2, the applicant has requested
a tire stop waiver for parking spaces which do not abut
landscaped areas. The Public Works Director and Community
Development Director have the authority waive the tire stop
criteria if they determine that the following criteria are
met:
a. The waiver would not allow vehicles to encroach upon
landscape or pedestrian areas (such areas shall be
protected by tire stops, curbing, or the equivalent);
b. The waiver would not allow vehicles to abut or "head
into" one another in any fashion other than bumper to
bumper [any bumper to fender (or side) parking
configurations shall require tire stops, curbing, or the
equivalent];
c. The waiver would not apply to spaces accessed from
driveways that serve as circulation driveways which
channel traffic around or through the site or parking lot
area; and
d. The site plan parking area traffic circulation design
provides circulation driveways, as needed, to adequately
channelize traffic flow.
In the opinion of the Public Works Director and the Community
Development Director, the application meets all of the above
referenced criteria. Therefore, the Public Works Director and
Community Development Director have waived the tire stop
requirement, consistent with the proposed site plan.
48 BOOK 92 PvjE892
July 12, 1994
I
Boa. 92 pnE
Note: The tire stop waiver was granted for both the May 12th
plan and the revised plan.
8. Stormwater Management: The stormwater management plan has
been submitted to the Public Works Department, which has
granted tentative approval of the stormwater plan. The
applicant will be required to obtain a Type "B" stormwater
management permit prior to site plan release. Public Works
will- require post development discharge to be no more than
pre -development discharge and will require that the site's
discharge not create adverse impacts to the existing drainage
system.
9. Compatibility with the Surrounding Area: Given the area's
predominately residential use, staff gave a great deal of
attention to compatibility of the proposed project with
surrounding uses. While staff has the ability to apply and
enforce only the land development regulations, staff had
requested that the developer exceed the county's land
development regulation requirements in relation to several
elements of the plan. Those elements included: landscaping,
buffering, signage, and loading/unloading areas.
Staff also recommended that the developer exceed the county's
buffering requirements, which the developer has done in this
site plan proposal, mostly by adding additional shrubs to the
buffers. The applicant has also agreed to use a low level
monument style sign rather than a pylon sign. The monument
style sign will be more compatible with the residential style
of subdivision signs in the area, rather than typical
commercial pylon signs. In response to staff comments, the
applicant has proposed to provide walls and a roof to the
loading/unloading platform located at the rear (west side) of
the proposed grocery store.
In reviewing the site plan, staff has attempted to keep the
project's main entrances on Mooring Line and Windward Way and
off Bowline Drive to limit the mixing of commercial and
residential traffic. Previous shopping center proposals for
this property proposed driveway connections on Bowline Drive
(closer to residential areas). Thus, the proposed traffic
circulation plan should reduce the intrusion of commercial
traffic into residential areas, as compared to previous site
plan proposals.
Pursuant to LDR section 952.13(2), staff has recommended that
the developer re-examine the need for a wall to buffer the
loading area behind the proposed Publix. It is staff's
position that a wall would serve as a better noise block than
just the berm and vegetative buffer. Staff notes that, like
Previously approved plans for the site, the proposed third
(new) driveway will bring commercial traffic closer to the
residential area than the May 12th plan. The applicant has
agreed to construct a 6' - 8' wall, with specific provisions
made to ensure drivers leaving loading areas could see over
the wall prior to exiting the loading area.
10. Landscaping and Buffering: The landscape plan is in
conformance with Chapter 926. This includes required
perimeter buffering.
The site is bordered on several sides by residenirial zoning
(see attachment #5). To the west and southwest, the adjacent
Property is zoned RS -3. Where a CL district commercial
49
July 12, 1994
M
project abuts the RS -3 district, the LDRs require that a Type
"B" buf fer be constructed to separate the uses. To the north,
the property is zoned RM -10. Where a CL district commercial
project abuts the RM -10 district, the LDRs require that a Type
"C" buffer be constructed to separate the uses. To the south
of the jreaysthe rHarbor
troj
ect
whiwas approved satimeshare/ental development. The
_
Harbor Inn property is zoned CL. Since that property is zoned
CL, there is no buffering required by the LDRs. At the
request of staff and residents, however, the developer is
depicting on the site plan a Type "C" buffer along the south
property line of the shopping center parcel.
The LDR's require that the developer provide a 6' opaque
feature where the Type "B" buffer is required adjacent to the
single family residential zoning. The developer is proposing
a berm which would be 6' above the pavement for Bowline Drive
• and 3' above the elevation of the shopping center. There
would-be plant material installed on top of the berm to
provide additional height for the buffer. The slope of the
berm would extend from the parking lot into the right-of-way
for Bowline Drive. The Public Works Department has
conditionally approved the developer's request to extend the
berm into the right-of-way. (Please see attachments #6 and #7
for details of the berm and buffering adjacent to Bowline
Drive.) As submitted, the site plan exceeds all plant
material quantities for the buffer areas and the S.R. A -1-A
landscape strip.
The property to the east is zoned RM -10. However, no special
type of buffering is required since there is a thoroughfare
plan road (S.R. A -1-A) between the two properties. A standard
10' wide landscape strip is required between the proposed
shopping center parking lot and the S.R. A -1-A right-of-way.
The applicant is proposing to plant the 10' landscape strip
within a 15' wide utility easement that runs along the
project's S.R. A -1-A frontage. The landscape material,
however, could conflict with the ability of utility providers
to construct and maintain utilities within the easement.
Therefore, the applicant will be required to maintain the
required 10' landscape strip, regardless of any utilities
construction or maintenance activity. The applicant has three
options to remedy the conflict:
a. obtain a release of the easement,
b. redesign the site plan to remove the landscaping from the
15' utility easement, or
ce obtain and execute a covenant for removal and replacement
of the landscape material, in the event of utility work
disturbing the buffer.
The applicant has indicated that he will pursue option "c.",
and will obtain and execute a covenant for removal and
replacement of required landscape materials. The covenant
will need to ensure that the applicant or.its successor will
replace any required landscape material removed during utility
work in the easement. A covenant or release of easement must
be obtained prior to site release. Any redesign (option "b.")
would need to be re-evaluated and re -considered by the
Technical Review Committee (TRC) and the Planning and Zoning
Commission. -
50 Bm 92
July 12, 1994
mm 92 mrA90
11. Utilities: The project will be served by water and wastewater
from the City b,f Vero Beach. These utility provisions have
been approved by the Environmental Health and Vero Beach
Utilities Departments.
12. Dedications and Improvements:
•External Sidewalks: The county's land development
regulations require that a 5' wide public sidewalk be provided
along Bowline Drive and Windward Way. Section
914.15(6)(b)2aiii allows the Public Works Director and
Community Development Director to waive the sidewalk
requirement when a physical constraint is present that would
preclude proper construction of a sidewalk segment. In this
instance, the landscape berm (considered necessary for
buffering). would constitute such a physical constraint.
Therefore, the Public Works Director and Community Development
Director have waived the sidewalk requirement along Bowline
Drive. No sidewalk then will be required along Bowline Drive.
•Off -Site Traffic Improvements:. The off-site traffic
improvements are covered in the traffic circulation element of
this report.
'I Site Lighting: The CL zoning district requires that site
lighting be. installed as a required improvement. The
applicant has proposed a site lighting plan that appears to
meet the requirements of the land development regulations.
There is a provision in section 954.07(4)(e) of the land
development regulations that prohibits the source of
illumination for site lighting from being visible from
adjacent properties. Staff believes that the lighting plan
meets this requirement, but reserves the right to require
field adjustment after issuance of the certificate of
occupancy (C.O.), to correct any lighting "spill-over"
problems.
*Signage: At staff's request, the developer has committed to
a monument style sign, but cannot be required to provide such
as sign based on the LDRs.
13. Environmental Issues: There are no wetlands or native upland
habitat on the site. The only environmental concern staff
initially had with the proposal was the impact of commercial
site lighting on sea turtles. This concern has been
adequately addressed by the applicant.
14. Concurrency: The applicant has executed a concurrency
acknowledgement agreement for the project, indicating that the
Project does not have concurrency and that an initial
concurrency certificate must be obtained prior to the issuance
of a building permit. Therefore, all concurrency related
requirements related to site plan approval have been
satisfied.
15. Surrounding Land Use and Zoning:
North:
South:
East:
West:
July 12, 1994
Multi-family/RM-10
Timeshare/CL
Multi-family/RM-10
Single family/RM-10
51
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APPEAL CRITERIA
For site plan appeals to the Board, there are no specific appeal
criteria to be considered as there are in appeals from decisions of
the community development director. Therefore, this appeal is to
be considered by the Board in the same manner that the Planning and
Zoning Commission considered the-ziteplan request. The issue,
then, is whether or not the site plan meets all applicable county
LDR requirements. '
In making its decision to deny the site plan, the Planning and
Zoning Commission failed to specify its reasons for denial. It is
staff's position that, with the referenced conditions, the site
plan meets all applicable LDR criteria and should be approved.
RECOMMENDATION:
Based -on the above analysis, staff recommends that the Board of
County Commissioners grant the appeal and approve the "June 28th"
site plan with the following conditions:
1. That prior to site plan release, the applicant shall obtain a
covenant, which is satisfactory to the County Attorney's
Office, that provides for removal and replacement of required
landscape material within the 15' utility easement, or a
release of 10' of the 15' utility easement.
2. That prior -o the issuance of a Certificate of Occupancy
(C.O.), all off-site traffic improvements described in section
6 of this report must be completed, and deemed acceptable by
the County Traffic Engineering Division.
3. That the applicant must shield all lighting in accordance with
section 954.07(4)(e). This could require lighting
adjustments and modifications after issuance of a Certificate
of Occupancy (C.O.).
4. That the developer shall install a 6' to 8' high wall the
length of the loading area that serves the grocery
store/supermarket. A portion of the wall height may be
reduced to provide a line of sight for trucks exiting the
loading area.
5. That the landscaping will need to be field verified to ensure
that all corner sight distances are maintained and that any
required 6' opaque vegetation feature is opaque to a height of
6' as measured from the project site.
ATTACHMENTS:
1. Letter of Appeal
2 Minutes from May 12th Planning & Zoning
3. Draft Minutes from June 28th Planning &
4.., Site Plan Application
5. Location Map
6. Site Plan
7. Berm Section
8. LDR excerpt 952.12(9)(b)
9. Traffic Impact Analysis Excerpts
52
July 12, 1994
Commission
Zoning Commission
I
Director Boling noted there have several points of contention
in terms of whether or not this revised site plan meets the
requirements of the LDRs with regard to traffic, parking, etc. He
felt the Board needs to concentrate on four of those areas. One
will involve the traffic study itself, the trip distribution and
the assumptions that went into that, and the impact on how
different driveways on different parts of the project are
classified. A different classification of driveway would mean a
different type of requirement in terms of the separation distance
between where the driveway enters the property and the next
intersection with an internal driveway. Concerns also were raised
about the median on Mooringline Drive, the two driveway cuts within
that median, and the application of the LDRs regarding median
openings. Another issue to consider is the maneuverability within
the loading area and getting into the loading areas.
Director Boling advised that a fourth issue, which is major,
gets back into the scope of review. He referred to the following
memo from County Attorney Charles Vitunac dated 7/6/94: (Exhibit
1.2)
TO: Board of County Commissioners
FROM: Charles P. Vitunac, County Attorney
DATE: July 6, 1994
RE: Standard of Review for Site Plan Appeal
I have been asked to state briefly the legal prerogatives of the Board
of County Commissioners regarding site plan appeals under the Indian
River County Code and State law and in particular regarding the Publix
site plan for The Moorings, which is under appeal.
SUMMRY OF SITE PLAN REVIEW
The site plan -review requirements are given in Section 914.15 of the
Code and can be reduced to the following three inquiries, each of which
will be discussed in turn:
1. Is the use allowed by the zoning code?
By the time the Publix site plan appeal is heard, the Board of County
Commissioners may have resolved the issue whether a "supermarket" is
within the ambit of the term "grocery store" and hence allowed in a CL
zone. If the use is not allowed, the site plan must be rejected. If
the use is allowed, the Board must next determine if the site plan meets
the objectively determinable standards.
53
July 12, 1994
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2. Are all objectively determinable standards met?
These standards are specifically enumerated in the code and can be
objectively determined. By the time this appeal is heard the County
staff and the Planning and Zoning Commission may have made a
recommendation for approval or not based on the objectively determinable
standards issues. County policy is to have the applicant re -work the
site plan until the County staff finds that all requirements are in
order. Therefore, it is not expected that objectively determinable
standards requirements will be a decisional issue. However, if they do
become an issue the burden of proof is on the applicant to present
competent, substantial evidence showing compliance with each objectively
determinable standards requirement. This review by the BCC is quasi-
judicial. This means that, once unrebutted proof has been made showing
compliance with each requirement of the Code, the Board is required to
grant the permit applied for, at least in so far as this objectively
determinable standards issue is concerned.
3. Is the site plan consistent with the comprehensiveplan?
State law requires that all land use decisions be consistent with the
comprehensive plan. There are no exceptions. A site plan_ approval is
such a land use decision.
How does Indian River County ensure that its site plan decisions are
consistent with the comprehensive plan?
"Consistency" is defined in Section 163.3194(3)(a), F.S., as follows:
A development order or land development regulation shall be
consistent with the comprehensive plan if the land uses, densities
or intensities, and other as ct of the development permitted by
such order or regulation compatible with and further the
objectives, p6licies, land uses, and densities or intensities in
the comprehensive plan and if it meets with all other criteria
enumerated by the local government.
In the first instance, the County relies on Section 163.3213(3), F.S.,
which directs that any challenges to the consistency of the Land
Development Regulations (LDRs) with the comprehensive plan must be filed
within 12 months of the date of LDR adoption and are thereafter barred.
Since this time has elapsed without challenges a person may not now
claim that the LDRs are inconsistent with the comprehensive plan, and
there is a presumption that the LDRs are consistent with the
comprehensive plan. The Board may take notice of the numerous public
hearings, both during the day and at night, by both the Planning and
Zoning Commission and the Board of County Commissioners, which were held
to ensure that the County LDRs were made consistent with the
Comprehensive Plan.
The second means is the thorough review by staff professionals of the
proposed site plan and its relation to the LDRs, zoning code, and
comprehensive plan --all done with public input. The County land use
professionals have all determined that the site plan is consistent with
the comprehensive plan.
As a third means of ensuring compliance the County has established the
following hierarchy of land use controls:
General Outline of Land Use Controls ("controls")
A. Comprehensive Plan
B. Zoning Regulations
54L'0K.9 2f--".
July 12, 1994
C.
D.
E.
Site.Plans, PVDs, Subdivision Plats Regulations
Building Permits
Certificates of Occupancies
Consistency with the comprehensive plan is ensured by requiring that
each control be consistent with the control next in priority. (The
comprehensive plan is the highest priority.) If each control is
consistent with the one above it, then it also will be consistent with
the comprehensive plan. This method reduces the numerous reviews that a
thorough comprehensive plan analysis would otherwise require. Only the
next higher level of control must be reviewed. Thus, for a site plan
review, once the objectively determinable standards are met only the
zoning code need be looked at.
The first three controls will be discussed individually:
A. Comprehensive Plan
The highest control, the comprehensive plan, is a statutorily mandated
legislative plan to control and direct the use and development of
property within the county. The plan is similar to a constitution for
all future development within the county and is developed by the BCC in
its legislative discretion subject only to state law requirements. It
is the adopted portion of the comprehensive plan (i.e., goals, objective
standards, land use map, and other reference tables) that carry the
force of law.
B. Zoning Regulations
The LDRs are the means by which the comprehensive plan. is implemented
and their implementation involves the exercise of discretionary powers
within limits imposed by the comprehensive plan. The requirement of the
state that all LDRs conform to the comprehensive plan is in effect a
limitation on the local government's otherwise broad zoning powers. In
the last few years, Indian River County has made all its zoning and
other land development regulations consistent with the comprehensive
plan. As already mentioned any challenges based on inconsistency of
LDRs with the comprehensive plan -not filed within 12 months of LDR
adoption are time-barred by Sectiot-163.3213(3), F.S.
C. Site Plan
The County's site plan r44ulations are also LDRs, which have been
adopted through the public hearing process, and are thus presumed to be
in compliance with the comprehensive plan. However, specific site plans
must' be reviewed for consistency with the LDRs. Section 914.15 of the
Code requires that "site plans shall be reviewed pursuant to all
applicable zoning district regulations and regulations for specific land
uses, as applicable" and that "the development of any areas subject to
the provisions of this ordinance shall be consistent with the policies
regarding land development as established in the various elements of the
Indian River County comprehensive plan." This section lists some 26
matters to consider, most of which are objectively determinable
standards. Thus the burden of proof is on the proponent of the plan to
show consistency or compliance with the aforementioned requirements.
STANDARD OF REVIEW
Once the evidence for both sides has been presented what is the standard
of review available to the Board of County Commissioners?
July 12, 1994
55
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When enacting the comprehensive plan and initial LDRs the Board acts as
a legislative body subject to the deferential "fairly debatable" rule.
When reviewing .site plan issues, however, the Board is acting as a
quasi-judicial body. This means that there must be competent,
substantial evidence for every required finding, and that the decision
of the Board must be based on whether the applicant has met the
requirements of existing law. It would not be appropriate to consider
what the law should be (That would be a legislative decision). A county
cannot unreasonably withhold site plan approval once the legislatively
adopted existing legal requirements have been met.
The following excerpts from controlling court cases may assist the Board
in understanding the review standards:
CASE EXCERPTS
1. " . . . the function of a . . . commission is reviewing a property
owner's proposed site plan for development of the owner's property
in accord with the city zoning laws was not legislative in nature,
but rather administrative [i.e., quasi-judicial]." (City of Delray
Beach)
2. " . . . a city cannot unreasonably withhold approval [of a site
plan] once the legislatively adopted legal requirements have been
met." (City of Delray Beach)
3. "All persons similarly situated should be able to obtain plat
approval upon meeting uniform standards. Otherwise the official
approval of a plat application would depend upon the whim or
caprice of the public body involved." (City of Delray Beach)
4. "The administrative procedure for site plan approval is
quasi-judicial in nature, and conducted to factually determine if a
proposed site plan submitted by the property owner conforms to the
specific requirements set out in the administrative -regulations
governing the erection of improvements on the property . . . Those
conditions should be set out in clearly stated regulations.
Compliance with those regulations should be capable of objective
determination in an administrative proceeding. While the burden
may be on the property owner to demonstrate compliance, no
legislative discretion is. involved in resolving the issue of
compliance." (City of Delray Beach)
S. "When the public entity conducts site plan . . . review, it
merely applies_ established rages of law to existing and uncontested
facts." (City of Delray Beach)
6. " . . . the authority of a town to deny the land owner the right to
develop his property by refusing to approve the plat of such
development is, by statute, made to rest upon the specific
standards of a statute or implementing ordinances. Thereafter, the
approval or disapproval of the plat on the basis of controlling
standards becomes an administrative act." (City of Coral Springs)
7. "It is elementary that once a party complies with all legal
requirements for platting there is no discretion in governmental
authority to refuse approval of the plat." (City of Coral Springs)
S. "Section 14 of the Broward County Plat Act . . . provides that such
approval may be 'subject to such conditions as the governing body
56 MDK 92 fAu
July 12, 1994
Bo, 0 2 ma 831
of the county. commissioners may deem to be in the best
interest of the .public.Without pursuing the validity of that
provision . . . we hold that , having met all of the legal
requirements for obtaining plat approval, the county must approve
[the] plat . . ." (Broward County case)
9. "Opposition of surrounding property owners must be considered by
the city . . . since the statement of intent of the . . . ordinance
includes the desire to achieve aesthetic and compatible
relationships between adjacent properties. But the opinions of
neighbors by themselves are insufficient to support a denial of a
proposed development. We agree with the city that project density
is a legitimate concern . . . But it is a concern that must be
addressed and expressed in appropriate ordinances." (City of
Deland)
10. "The correct law applicable in this case is that the ordinance
should be given its plain meaning and that any doubts should be
construed in favor of a property owner. The circuit court's
reliance upon the undefined and uncertain standards contained in
the statement of intent when clear and specific numbers of units
are expressed in that same ordinance is not an interpretation that
recognizes the plain meaning of the ordinance." (City of Deerfield
Beach)
11. "The site plan merely regulates the layout of a piece of property,
the design of the buildings, and the actual locations of the
buildings on that site. The city's zoning ordinance control the
uses to which a particular piece of property may be put. The plan
board, therefore, is not to be concerned with the particular use of
a piece of property as long as it fits within the permitted uses of
the city's zoning ordinances." (City of Gainesville)
12. "The plan board members voted to deny the petition because of the
parcel's intended use . . . not because it failed to comply with
appropriate criteria for site plan approval." (City of Gainesville)
[This was found to be illegal.]
13. "The test in reviewing a challenge to a zoning action on grounds
that a proposed project is inconsistent with the comprehensive land
use plan is whether the zoning authority's determination that a
proposed development conforms to each element and the objectives of
the land use plan is supported by competent and substantial
evidence. The traditional and non -deferential standard of strict
Judicial scrutiny applies. (Machado case)
14. "A development order or land development regulation shall be
consistent with the comprehensive plan if the land uses, densities
or intensities, and other aspects of development permitted by such
order or regulation are compatible with and further the objectives,
policies, land uses and densities or intensities in the
comprehensive plan, and if it meets all other criteria enumerated
by the local government." (Machado case)
15. "Zoning laws are in derogation of the common law and as a general
rule are subject to strict construction in favor of the right of a
Property owner to the unrest:Acted use of his property. Permitted
uses must be interpreted broadly, prohibited uses strictly so that
doubts are resolved in a property owner's favor." (City of South
Miami)
57
July 12, 1994
Director Boling reviewed the 5 conditions of site plan
approval as set forth in staff's recommendation.
Commissioner Adams inquired about the distance between the
canopy trees on the 15 -ft. buffer, and Director Boling explained
that the opaque barrier will have vegetation 3 -feet above the berm
level.
There being no further questions of staff, Chairman Tippin
opened the public discussion.
Attorney Ralph Evans, 2920 Cardinal Drive, representing the
applicant, referred to the following letter dated June 29, 1994:
(Exhibit 1.3)
FtALPii L. Evnxs
ATroxxsv AT LAM
• 2920 CARDINAL DRIVE - P. O. BOX 3247
VERO BEACH. FLORIDA 32964
TEL (407) 231-1800 - FAX (407) 231-2612
Z�j293031 7
June 29, 1994 Q,
JUN1994
:.� roasP„;�rJmr
Robert M. Keating, AICP t
Community Development Director
1840 25th street
Vero Beach, FL 32960
In Re: Site plan for Sea Mist Shoppes
Dear Mr. Keating:
As you know, I represent Ronald Ferrin, and his agents, in regard
to the above referenced site plan application. Please accept this
letter as notification to you of my client's initiation of an
appeal pursuant to section 914.13, Indian River Code (1994) from
the action, or lack thereof, made by the Planning and Zoning
Commission at its special meeting held on June 28, 1994 in regard
to the site plan application. _.
Generally, this appeal is initiated on the basis that the Planning
and Zoning Commission, failed to garner the requisite four votes
necessary to recommend or not to recommend approval of site plan,
and therefore, such lack of votes is deemed to'be a denial of the
site plan.. Additionally, the site plan, without the necessity of
revision and with the conditions placed on it, meets the requisite
criteria in Indian River County for approval, as was demonstrated
by substantial competent evidence presented in support of this
application.
As required by law, please advise the County Administrator of this
appeal. As I understand it, in anticipation of an appeallbeing
initiated from this site plan application, it has been scheduled
for review before the Board of County Commissioners on July 12,
1994.
I appreciate your attention to this matter. If there are any
questions, please do not hesitate to contact me.
Very truly yours,
a
RAL H L. EVANS
58
July 12, 1994
boa 92 fAu 833
Attorney Evans reminded the Board that their function here
today is quasi-judicial. He advised that he would be introducing
several people during the following presentation of Halvorsen's
appeal who will explain this site plan in every detail and would be
happy to answer any questions the Board may have.
Attorney Evans introduced Keith Pelan of Kimley-Horn who
pointed out the details of the site plan on a diagram of the 5.3
acre site located at the southwest corner of AIA and Mooringline
Drive, concentrating on the driveway classifications cited in
staff's recommendation.
Mr. Pelan noted that after Public Works Director Jim Davis
advised that an upcoming DOT project calls for 3 lanes on A1A from
the St. Lucie County line north to Vero Beach, they agreed to enter
into a developer's agreement to 3 -lane the section of AlA from a -
point south of this project to just north of Harbor Drive, the
entrance to the Mooring's club. Assuming permitting and everything
else gets taken care of, that would happen simultaneously with this
project.
Mr. Pelan next addressed various site plan requirements, i.e.
setbacks, 25 percent open space, maximum floor area, and parking
spaces. Concentrating on the loading areas, he noted that the Code
requires two loading spaces of a minimum of 141x 151. The plan
provides three loading areas, one being a 24' x 80' depressed truck
well for the grocery store which will accommodate two tractor
trailer trucks unloading simultaneously side by side. The second
loading area is 241x 35' and is located at the corner of the
grocery store and also will service the retail building. The third
area is not specifically designated as a loading area. It is in
the southeast corner of the site and is basically for smaller
trucks to service the retail store from the front and from the rear
along a rear sidewalk. Mr. Pelan showed an illustration of the
area where there has been some concern about the ability to
maneuver trucks, explaining that the second driveway off of
Mooringline Drive will serve to separate all the service traffic
from the main customer traffic.
Mr. Pelan then addressed the following: solid waste disposal
(the various dumpster locations); the two different types of
lighting on the site; location of signage; sidewalks; and street
lighting.
In response to Commissioner Macht's concerns about lighting,
Director Boling advised that the County Code requirement is to
59
July 12, 1994
shield the light source from adjacent properties and vehicles that
are on the roadways and any direct glare.
Mr. Pelan next addressed Commissioner Adams' questions
regarding traffic circulation, noting that the majority of trips
will come off of Mooringline Drive. Commissioner Adams felt the
entrance sign might be more effective if placed at the southern
driveway. She questioned why there isn't an entry or exit off of
AlA.
Public Works Director Jim Davis explained that the LDRs
address driveway connections based on the functional classification
of the roadway. If the property borders more than one roadway,
that access would be the roadway with the lesser functional
classification. In this particular case, AlA is an arterial route
and there are connections to the Moorings Development at
Mooringline Drive and south at Bowline Drive. Basically, the
access would be to the minor roadway and not another access onto
AlA, and that is in harmony with the DOT's Access Management
Program that was approved by the Legislature.
Lengthy discussion ensued regarding the truck access and
whether the 25 -ft. width of the driveway off of Mooringline Drive
would be sufficient to handle two-way traffic.
Attorney Evans introduced Tom Vincent, vice president of
Halvorsen Development Corporation, who distributed packets
containing the following material. Lengthy discussions were held
after each topic: (Exhibit 1.4 - green folder)
SEA MIST SHOPPES SITE PLAN
SEC. 914.15(7)(b)
SETBACKS: SEC. 911.10(7): 25 FT. FRONT, 10 FT. SIDE, 10 FT . REAR
SITE: 61 FT FRONT; 47 FT SIDE; 71 FT REAR
MINIMUM OPEN SPACE: SEC. 911.10(7): 250
SITE: 25.2%
BUFFERYARD REQUIREMENTS: SEC. 911.10 (8) : TYPE B WITH 6 FT OPAQUE ABUTTING
SINGLE FAMILY; TYPE C WITH 6 FT OPAQUE ABUTTING
MULTI -FAMILY; 10 FT AT AlA
SITE: "B" AT BOWLINE DRIVE, "C" AT MOORING LINE DRIVE; 15
FT AT AlA; AND "C" AT WINDWARD WAY.
60
July 12, 1994
B:oDK92 ;MSE 835
MAXIMUM FLOOR AREA: SEC.* 911. 10 (7 ) NOT LESS THAN 10, 000 S.F.
,
INFLUENCED BY OPEN SPACE, PARKING, MAXIMUM BUILDING HEIGHT,
AND COVERAGE.
SITE: 20.1%
BUILDING SEPARATION:
LOT COVERAGE: SEC. 911.10(7): 40%
SITE: 20.1%
REQUIRED IMPROVEMENTS: SEC. 911. 10 (6) : BIKEWAYS, SIDEWALKS, STREET LIGHTS
SITE: BIKEWAYS EXISTING ALONG AlA; SIDEWALKS TO BE
CONSTRUCTED ALONG MOORING LINE AND BOWLINE DRIVES;
EXISTING STREET LIGHTS AT AlA INTERSECTIONS, MOORINGS
STREETLIGHT DISTRICT TO PROVIDE ADDITIONAL WITH
ASSESSMENT TO THIS PROPERTY
DENSITY/INTENSITY: SITE:
USES: SEC. 911.10(4)
FLOOR TO AREA RATIO: .2 : 1
SEC. 914.15(8)
CONCURRENCY MANAGEMENT [Chap. 910]
*LEVELS OF SERVICE: SOLID WASTE; ROADWAY; DRAINAGE; POTABLE WATER;
SANITARY; AND PARKS.
ZONING [Chap. 911]
*COMMERCIAL LIMITED HAS 79 (1 07 IN CG) PERMITTED USES INCLUDING BANKING,
RETAIL, AND GROCERY STORES;
*MANDATES REQUIRED IMPROVEMENTS: BIKEWAYS, SIDEWALKS, AND STREETLIGHTS;
*SIZE & DIMENSION MINIMUMS: LOT SIZE: NOT LESS THAN 10,000 SQ. FT. &
NOT LESS THAN 100 FT. WIDE; SETBACKS: FRONT, 25 FT., REAR &
SIDE, 10 FT.;
*MAX. BUILDING COVERAGE, 40%;
*MINIMUM OPEN SPACE, 25%;
*MAX. BUILDING HEIGHT, 35 FT.;
*BUFFER REQUIRED: TYPE "Bn 6 FT. OPAQUE BETWEEN SINGLE FAMILY, AND TYPE
"Cu 6 FT. OPAQUE BETWEEN MULTI—FAMILY.
ACCESSORY USES & STRUCTURES [Chap.917]
POTABLE WATER AND SANITARY SEWER [Chap. 918]
LANDSCAPING & BUFFERING [Chap. 926]
*BUFFERS TYPE "B" & "C"; VEHICULAR AND NON—VEHICULAR STANDARDS,
SIGHT DISTANCES; IRRIGATION
FLOODPLAIN/STORMWATER [Chap. 930] STORMWATER MANAGEMENT
61
July 12, 1994
TRAFFIC [Chap. 952]
*TRIP GENERATION
*TRIP DISTRIBUTION
*LEVEL OF SERVICE
*EXISTING AND FUTURE CONDITIONS
*PEAK HOUR, DIRECTION, SEASON
*ENTRANCE REQUIREMENTS
*DRIVEWAY CONFIGURATION, LOCATION
*TURNING LANES/MEDIAN
PARKING [Chap. 954]
*NUMBER REQUIRED
*LOADING DOCKS
DRI [Chap. 916]
TREES PROTECTION/LANDSCAPING [Chap. 927]
ENVIRONMENTALLY SENSITIVE AREA PROTECTION
UPLAND HABITAT [Chap. 929)
WELLFIELD/AQUIFER PROTECTION [Chap. 931]
COASTAL MANAGEMENT [Chap. 932]
HISTORICAL PRESERVATION [Chap. 933]
MINING/EXCAVATION [Chap. 934]
SPECIFIC LAND USE CRITERIA [Chap. 971]
[Chap.928]
Economic concessions S Imcrovements:
1. Type "C" Buffer at Windward Way (not
required!) ...........................$ 3,500.00
2. Exceeded Buffer requirements with
plantings/tree densities (Over
2 1/2 times actual number of trees
required) ............................$ 6,000.00
3. Additional sidewalks at Publix
frontage and R.O.W...................$ 4,500.00
4. Added parapet walls above roof
lines and continuous manpard roofs
with concrete tile (shields all
roof top equipment!!)................$100,000.00
5. Added wall/roof enclosure at loading -
dock platform and added 6'-8' wall
at loading dock......................S 9.000.00
Total......................$123,000.00
62
July 12, 1994
b
L I
r
f
E"10K 92 FBF
PROJECT COMPARISON
Moorings Commercial Center vs. Sm Mit S6oppes
' . �i y'� r.^ :.�• : Com'. . .. �i� �
:� �•. > .;;iG'.i' :�;gS"'. .�'
�.• �:: L.'-Y:� >t�fpfii4. s,�ii?�o�r .��.•�,,<:
. Y
� '� • `'� �MUR
l f ,.• .;.n�wr rM..:?w•f'i^t!'?.'..•..•�'.�
_.
�iZ't•_r' ,� .,. � � j; U
w ! .j . `D , is �' �
y., ai�1F •Qi
. y_ '.
yltwl:�;<..t. . . rh•'..
�Yt��ll °'Mii1v , t".v lv• ': - r �
f` a.:iA�";;f �r �r �'. f`r� i�yfi
LAND USE BY SQUARE FEET
Retail
39,500 13,850
Medical Office
4,500 0
O4•ie
12,000 0
Reshmot
Grooary
Bank
4,000 1,850
0 27,860
0 3,000
TOTAL
60.000 46,560
-22%
PARIUNG SPACES PROVIDED
326 234
-2VIs
OPEN SPACE Cin: are feet
37,095 59,500
+36.5%
TRAMC GENERATION
PM Peals Ilour
245 172
-30'/.
Dai
24 1,868
-26%
BOWLINE DRIVE BERM
V He' 6' Ha
+ 2' Ha Rk
ACCESS POINTS
P 3
• Previovdp approved access driveda Bowline skive now proposed on Mooring Line Drive
WWRQfO"46AP SUM
JULY 11, 1994
TOM VINCENT
HALVORSEN HOLDINGS
1900 GLADES ROAD
SUITE 260
BOCA RATON, FLORIDA 33431
RE: PUBLIB FACILITY
SEA MIST BROPPES OF VERO BEACH
SWC AlA i MOORING LINE DRIVE
VERO REACH, .INDIAN RIVER COUNTY, FLORIDA
Dear Tom:
Thank you for,your recent phone call which updated me on the
progress of the above referenced location.
July 12, 1994
63
Needless to may, I was somewhat concerned with the questions
concerning the seasonality of this location, as well as some
views that had been circulating about the possibility of the
facility only being opened on a "seasonal" basis. Allow me to
expound upon this.
First of all, when working diligently on this particular
location to determine the viability of the site, the Publix Real
Estate Department did take into consideration "seasonality".
This, of course, has.always been a factor that we use when
evaluating our locations. Since most of our existence is in the
For example, when I was a Manager in the Tequesta location, we
experienced a seasonality drop in sales of approximately 303-403
between Easter and the first few weeks of October. There are
also other areas that we service, such as Longboat Key, Naples,
and areas in Dade, Broward, Palm Beach, Martin, and Indian River
County that also fluctuate in sales. Publix recognizes that
many of the customers are occupying two residences and limit
their time here in Florida. When Publix made the determination
to approve the location, all of the seasonality factors were
taken into consideration.
As far as operating stores on a seasonal basis, please be
assured that Publix does not have any locations that close
during the "off season" periods. Many of the management teams
utilize the time to work on other projects during this period.
It would be very difficult to even consider operating stores on
a seasonal basis, because of two primary factors: (1) being
associated with employees. Publix offers year-round
opportunities for its workers and would find it very difficult
to try to relocate them during the off-season periods; (2) It
is important to note that we could not justify having to move
all of the inventory out of the store for the off-season
periods.
With all of this in perspective, I would hope that you could
convey to any concerned parties that this location will be
operated year-round and the seasonality factors have been well
taken into consi erat on.
Please feel free to contact
analogy of these scenarios,
questions you may have.
me if you would like a further
or if I can answer any additional
As always, your continued interest in our company is greatly
appreciated.
64
July 12, 1994
SINCERELY,
PUBLI$ SUPER XARnTS, INC.
�n
TOM ADAMS
REAL ESTATE MANAGER
BOOK 9 FftiU1DC7
J
no0 PALES
Board of County Commissioners
sea Dist shoppes
site Plan Approval Hearing
July 12, 1994
Comparable Projects (Commercial/Retail Developments Adjacent to Residential)
1. Neapolitan Way
Naples, Florida
2. The Trails Shopping Center
Ormond Beach, Florida
3. Regency Square
Boca Raton, Florida
4. Village Commons
West Palm Beach, Florida
5. Cobblestone Crossing
Jacksonville, Florida
6. Alafaya Square
Oviedo, Florida
7. Plantation Promenade
Plantation, Florida
S. Riverchase Shopping Center
Naples, Florida
9. Proposed Shopping Center
Coral Ridge Drive and Lakeview Drive
Coral Springs, Florida
65
July 12, 1994
M M
M
L
SEA MIST
SHOPPES
TRADE
AREA
2) Floralton Beach
750K -1.5M
10
# S. F. # M. F.
RESIDENTIAL DEVELOPMENT
PRICE
RANGE
UNITS UNITS
INDIAN RIVER COUNTY
1) The Moorings
130K -3M
350
800
2) Floralton Beach
750K -1.5M
10
3) Porpoise Point
225k -1.2M
111
4) Bonita Beach
150K -1M
19
45)The Sands
5) Surfside Estates
150K-lM
23
6) Anglers Cove
125K -1M
12
7) Oceanridge Subdivision
295K -1.5M
63
SUBTOTAL
8) Little Harbor
500k -2M
10
3925
9) Oceanside
400k - 700k
42
10)Seagrove
200k -600k
212
11)Sandpointe
500k-2 M
35
12)Shorelands
300k -500k
37
13)Smugglers Cove
200k -500k
37
14)Wyn Cove
150k- 225k
26
15)Treasure Cove
225k -325k
23
16)River Ridge Estates
300k -500k
19
17)The Dunes
175k -2.75M
12
18)Rio Mar
250k -1M
310
19)Castaway Cove 1-6
190k-iM
482
20)Indian Bay
150k -1M
42
21)Ocean Corp
125k -200k
100
22)River Oaks
100k -250k
92
"23)Bethal By The Sea/Veromar
200k -350k
916
24)Cache Cay
250k -750k
73
25)Pebble Bay Estates
350k- 850k
46
26)Hidden Harbor
250k -325k
17
27)Johns Island
120k -3M
401
1000
28)Seawatch
120
29)Victoria
50
30)Vera Cruz
75k -125k
56
31)Oceangate
145k -175k
40
32)Bermuda Bay
80
167
33)Seaforest Court
25
34)Maroon Subdivision
20
35)The Fountains
45
36)Sunny Sands
35
37)Vista Del Mar
100k -125k
245
38)La Mer
100k -150k
128
39)Park Shores
275
SUBTOTAL 3509 2986
-----------------
ST. LUCIE COUNTY
40)Atlantic View
100k -230k
102
41)Bryn Mar
80k -180k
156
42)Barkley Bay
125
43)Ocean Harbor
111
44)Queen Cove
300
45)The Sands
_
45
46)Treasure Cove Dunes
25
47)Sea Palms
116
48)Hibiscus
58
SUBTOTAL
416
------------------
622
TOTAL UNITS
3925
3608
TOTAL SF AND MF 7533
AVG PERSONS PER HH 2.32
TOTAL ESTIMATED POP 17477
"ST LUCIE % OF TRADE AREA 13.78%
66 92 P, u 840
July 12, 1994
J
Attorney Evans next introduced Kurt Crist, landscape architect
from Michael A. Billick, Inc., who addressed the Type C buffer
required on Mooringline Drive and the Type B buffer along Bowline
Drive. He also elaborated on the vegetation included in the Type
C buffer along Windward Way and the right-of-way buffer along AlA.
Commissioner Eggert asked what type of trees they have planned
for the parking lot, and Mr. Crist advised that they have proposed
92 trees, which is more than twice as many as the minimum
requirement. They plan to plant cabbage palms, 12 -ft. live oaks
and 12 -ft. Washingtonia palms in the parking areas, with Ligustrum
trees up next to the building.
Commissioners Adams and Eggert preferred to see 14 ft. or 16
ft. trees planted rather than the 12 -ft. trees, and Mr. Crist felt
that was a very good suggestion because it would give a couple more
years' jump on thais trees. He noted that there will be a regular
maintenance program.
Attorney Evans next introduced John Atz, registered
professional engineer with Kimley-Horn and Associates of Vero
Beach. Mr. Atz advised that beginning with the LDRs, he would
review the code requirements and some of the methodology and
thought that went into the transportation study. He next addressed
trip generations for a commercial project.
Continuing, Mr. Atz reviewed the traffic circulation of the
site, and briefly explained their plans to minimize construction
traffic. They intend to approach the DOT with a request for a
temporary driveway connection off of AlA to accommodate
construction traffic, but he could not guarantee the DOT will
permit it.
Mr. Atz next addressed the drainage requirements pursuant to
the County's requirements as well as those of the St. Johns River
Water Management District.
Attorney Evans next introduced Henry Skokowski, who basically
reviewed the proposed project in context to allow the Board to have
a bigger picture of the land use planning and issues. He pointed
out that the proposed project falls well within the concept of a
neighborhood center. The project is separated by roads from all
the abutting neighbors; it does not relate to the front yards of
any single family homes. It is well buffered and screened. It is
compact, efficient, and will service the neighborhood.
67
July 12, 1994
Attorney Evans announced that their presentation was
concluded, but he requested some time at the end to address any
issues raised in response to what they have presented.
Attorney Steve Henderson, representing the Moorings, Property
Owners Association and Jack MacLean, individually, distributed
several pages of handout material.
'Noss, HENDERSON, VAN GAASBECE, BLANTON & ROVAL, P.A.
July 7, 1994
VIA Hand Delivery
Mr. Robert M. Keating, AICP
INDIAN RIVER COUNTY ADMINISTRATION BUILDING
1840 25th Street
Vero Beach, Florida 32960
RE: Appeal Under Section 902.07, Indian River County Code
Dear Bob:
On behalf of the Moorings Property Owners Association, Inc. and
Jack MacLean, individually, please accept this letter as an appeal
under §902.07 of your interpretative decision under §952.12 (9) of
the Indian River County Code.
In the Staff Report on the Moorings Project dated June 24, 1994, at
the top of page 5 thereof, the Staff Report states:
"Residents who have reviewed the revisions have raised a
concern that the proposed additional median cut is spaced
closer than the 330 foot separation distance referenced
in LDR Section 952.12 (9)(b) the Public Works
Department, however, has indicated that the 330 foot
dimension is for traffic -way corridors (i.e. thoroughfare
plan roads), where the median has a traffic control
function rather than an aesthetic function.
Since Mooringline Drive is classified as a local road and
its primary function is to provide access to adjacent lots
and tracts, it is the opinion of the Public Works Director
that the spacing of the second median cut is not regulated
pursuant to LDR Section 952.12 (9) (b) .11
July 129 1994
68
na � � ,
ATTORNEYS AT LAW
DONALD C.FEUERBACH
ROBIN A. BLANTON
817 BEACHLAND BOULEVARD
LISA D. HARPRING
KEVIN S. DOTY
JUDITH GOODMAN HILL
STEVE L. HENDERSON
P, O. BOX 3406
FRED L. KRETSCHMER. JR.
THOMAS A. KOVAL
�c
Y $$0 BEACH, FLORIDA 32964-3406
MARGARET S. LYON
CLINTON W. LANIER
LEWIS W. MURPHY. JR.
GEORGE H. MOSS
1407, 231.1900
KATHLEEN WALSH STRATTON
EVERETT J. VAN GAASBECK
E. CLAYTON YATES
FAX: 14071 231.4387
OF COUNSEL
CHARLES E. GARRIS
FORD J. FEGERT
July 7, 1994
VIA Hand Delivery
Mr. Robert M. Keating, AICP
INDIAN RIVER COUNTY ADMINISTRATION BUILDING
1840 25th Street
Vero Beach, Florida 32960
RE: Appeal Under Section 902.07, Indian River County Code
Dear Bob:
On behalf of the Moorings Property Owners Association, Inc. and
Jack MacLean, individually, please accept this letter as an appeal
under §902.07 of your interpretative decision under §952.12 (9) of
the Indian River County Code.
In the Staff Report on the Moorings Project dated June 24, 1994, at
the top of page 5 thereof, the Staff Report states:
"Residents who have reviewed the revisions have raised a
concern that the proposed additional median cut is spaced
closer than the 330 foot separation distance referenced
in LDR Section 952.12 (9)(b) the Public Works
Department, however, has indicated that the 330 foot
dimension is for traffic -way corridors (i.e. thoroughfare
plan roads), where the median has a traffic control
function rather than an aesthetic function.
Since Mooringline Drive is classified as a local road and
its primary function is to provide access to adjacent lots
and tracts, it is the opinion of the Public Works Director
that the spacing of the second median cut is not regulated
pursuant to LDR Section 952.12 (9) (b) .11
July 129 1994
68
na � � ,
` r
bo s, fnf 8
We consider this to be a decision or action by you as Community
Development Director, either in the sense that Jim Davis is acting
as your "designee" or on the basis that his opinion is adopted in
your report and therefore becomes your opinion or decision.
Our grounds for appeal are as follows:
(1) The wording of the applicable ordinance is strongly
mandatory to wit:
it (9) Median openings. To assure traffic safety,
capacity and control, median openings located within
a traffic -way corridor shall be spaced the maximum
distance apart that will allow safe and adequate
circulation . . .
(b) No median openings shall be spaced at a
distance less than 660 feet from any signalized
intersection or median opening, except the median
openings may be spaced at a lesser distance based
upon a traffic study and impact analysis; but in no
case shall median openings be spaced at less than
330 feet . . ." (emphasis added).
(2) The term "median" is defined in Ordinance Section 901.03
as "the physical pertion of a highway separating the
traveled ways for traffic in opposite directions."
(3) There is no definition of "Traffic -Way Corridor" anywhere
in the LDRs and consequently, the only reasonable
definition that can be given to it is a broad one such as
a highway, road or street. The exemption created for the
benefit of this developer is based, erroneously, on
distinctions that are not expressed in nor justified by
the LDRs. More specifically, there is no LDR that would
create a distinction between the requirement for median
separations on local as opposed to collector or arterial
roads. Furthermore, there is no exemption or waiver
from the median separation requirement for medians which
serve an aesthetic function, nor is there any
definitions that would provide guidance as to when a
median is considered functional and when it is considered
nonfunctional or aesthetic. If the purpose of a median
and the purpose of a median cut minimum distances is to
"assure traffic safety, capacity and control . . . ",
then the ordinance should be interpreted in a manner
which promotes safety, not in a manner which potentially
creates hazardous conditions. Even if such distinctions
existed in the ordinance, it is clear that this median
strip will indeed serve a traffic control function,
particularly when Mooringline Drive is loaded with
increased traffic flows.
The first time we. were aware of your interpretation of Section
952.12 (9) was when the staff report was issued. It is unclear as
to when this interpretation was rendered, but we maintain that it
was not made public until the distribution date of the report.
Consequently, our appeal is timely under the provisions of Section
902.07 (3) (b) .
69
July 12, 1994
I have enclosed our check in the amount of $200.00 payable to
Indian River County representing the filing fee for this appeal.
Please advise as to when the appeal will be scheduled for hearing.
We would expect that the provisions of Section 902.07 (6) would be
given effect and that a final determination with respect to the
public site plan would be deferred until this matter is heard by
the Planning and Zoning Board and County Commission, if appealed.
I look forward to hearing from you.
Kindest regards,
MOSS, HENDERSON, VAN GAASBECK,
BLAND & KOVAL .A.
Steve L. derson
S LH; klm
cc: Mr. Jack MacLean, Director
The Moorings Property Owners Association, Inc.
William G. Collins, II, Deputy County Attorney
Indian River County
Warren W. Dill, Esquire, via Fax No. 388-0871
MOSS, HEA'DE$sox, VAn GAASBECS, BI.ANTOR & HpVAL, P A.
Attorney Henderson explained that the areas he would cover are
fairly narrow, such as the median issue. There is no median
opening provided for this project, and it is their opinion that is
a violation of the ordinance. He referred to Section 952.12
dealing with access control:
70 Boor
July 12, 1994
J
'BOOK 12 ifuuiS4.
1 952.12
ACCESS CONTROL
Minimum Separation Requirements
for Median(s)
(9) Median openings. To assure traffic safety,
capacity and control, median openings located
within a traffic -way corridor shall be spaced the
maximum distance apart that will allow safe and
adequate traffic circulation.
(b) No median opening shall be spaced at a
distance less than six hundred sixty (660)
feet from any signalized intersection or me-
dian opening, except that median openings
may be spaced at a lesser distance based
upon a traffic study and impact analysis;
but in no case.shall median openings be
spaced at less than three hundred thirty
(330) feet. Public streets shall be given pri-
ority consideration for median openings.
(4) Subdivision collector road a street which
serves as the principal entrance street of a
residential subdivision or provides for traffic
circulation within a subdivision.
(5) Minor or Local Street a street of limited
continuity used primarily for access to abut-
ting property, including cul-de-sacs and
nonthrough streets.
Attorney Henderson advised that Public Works Director Jim
Davis feels that this section should not be applicable to this
meeting because this median separation requirement is designed for
thoroughfare collective roads and not for what he calls a local
road. Director Davis also says that it does not have traffic
control function and that it serves as an aesthetic function.
Attorney Henderson advised that they have some traffic
engineers who disagree with those conclusions.
Attorney Henderson explained that he filed an appeal under
Section 902.07 which contains the procedures that are to be
followed in appeals from decisions of the community development
director or his designee (in this case, the Public Works Director):
71
July 12, 1994
M
Section 902-07. Appeals from decisions of the
community development di-
rector or his designee.
(1) Purpose and intent. This section is estab-
lished to provide a mechanism for the hearing
and resolution of appeals of decisions or actions
by the community development director or his des-
ignee and for further appeals from decisions and
actions from the planning and zoning commis-
sion.
(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 prop-
erty 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 descrip-
tion of the appeal requested, as well as the
date, time and place of the hearing.
(6) Effect of filing an appeal. The filing of an
appeal shall terminate all proceedings which fur-
ther the action appealed until the appeal is re-
solved, except when the halting of such action
poses a threat to life or property. The planning
and zoning commission shall make this determi-
nation. Notwithstanding this provision, proceed-
ings involving review of a development applica-
tion may proceed when an appeal of an
administrative decision has been filed and will be
considered concurrent with the development ap-
plication request.
M
Attorney Henderson maintained that the above procedures have
not been followed here, and for the record, he suggested that this
Board lacks quasi-judicial jurisdiction to hear this site plan
matter today.
Attorney Henderson stressed that the ordinance is compelling
in the sense that it requires a 330 -ft. separation. There is no
distinction between aesthetic versus functioning medians. There
are no distinctions in the ordinance between local and collective
roads. These are criteria or distinctions that have been created
by the Public Works Director and the Community Development
Director.
Attorney Henderson next addressed the issue of compatibility
with regard to the Comprehensive Land Use Plan. He read aloud the
following Policy 1.16:
72 800K 92 PAGE 846
July 12, 1994
600K 92 PAGE 84
Excerpts from Comprehensive Land Use Plan
Future Land Use Element
Incompatible Uses and Blighted Areas
Incompatible uses include those which are out of character or
scale with surrounding areas as well 'as those which negatively
impact surrounding areas with noise, smoke, glare, traffic, etc.
Several uses are by their nature incompatible with residential
areas; these—include airports, landfills and many industrial and
commercial operations. These uses have the potential to lower
property values and reduce the development potential of
surrounding property. These problems can be reduced through
effective land use patterns that provide for separation and
incorporate the use of buffers. Areas which contain incompatible
uses are often older areas in transition from one use to another.
58
POLICY 1.16: Land development regulations shall provide
performance standards for commercial development which at a
minimum address the following:
Land use campatibility, buffering and landscaping;
Access points, traffic controls, and parking;
Signage;
Gross floor area, impervious surface ratios;
Open space;
Character of an area;
Environmental Impact
Attorney Henderson next addressed Table 2.29, Standards for
Commercial/Industrial Uses:
July 12, 1994
73
M M
_I
TABLE 2.29
STANDARDS FOR COMMERCIAL/INDUSTRIAL USES
MANUFACTURING/
WHOLESALE/CONTRACTORS
"'RETAIL L
CONVIENCE GOODS
OFFICE h
HIGHWAY ORIENTED
N
INDUSTRIAL
TRADES
SERVICES
4 SERVICES
BUSINESS SERVICES
,
SERVICES
v
~
DESCRIPTION
Activities including the
Storage, shipping, transfer
Sale of goods and services
Frequently purchased goods
,
Non -retail oriented services
Goods and services depending
assembly, manufacture or
or sale of large quantities
including apparel,furniture,
and services including food,
including financial, realty,
on vehiclular traffic.
processing of materials
of products and materials.
and appliances.
groceries, drugs, household
technical, professional and
Lodging, food and beverage
,�.
or goods. Heavy repair
Heavy commercial activities
and personal products.
some medical services.
establishments. Auto
services.
including building trades
Personal services,
sales, service and repair.
and services.
Fuel sales.
LOCATION
Central, fringe and
Central and fringe areas.
Central areas, preferably
Central and dispersed areas.
Central and dispersed areas.
Dispersed and fringe areas.
dispersed areas.
grouped.
Near highway interchanges.
SITE REQUIREMENTS
Public water, sewer, solid
Public water, sewer, solid
Public water, sewer, solid
Adequate public services and
Adequate public services and
Adequate public services and
wastes facilites. Close to
wastes facilites. Close to
wastes facilites. Close to
facilities.
facilities.
facilities.
Emergency services.
Emergency services.
Emergency services.
Generally small lots.
Various lot sizes.
Generally large lots.
Various lot sizes.
Various lot sizes.
Various lot sites.
Office parks and developments.
Malls and centers.
v
'p
TRANSPORTATION
Direct access to major
Direct access to major
/Oir*ecfJand controlled access Mrert'ind controlled
Access to collector and
Acces to major roadways.
REQUIREMENTS
transportation services.
and intermediate roadways.
to mar.and minor arterials
acLess'to collector and'
arterial roadways.
On site parking.
Hear to railroads, principal
Easy road access.
and collector roads.
minor arterial roadways.
On site and shared parking
arterials. On site parking.
On site parking.
On site and shared parking
On site parking.
facilities. Pedestrian
facilities. Pedestrian
Pedestrian access.
access.
•
access.
RELATIONSHIP TO
Compatible with Wholesale
Compatible with industrial
Compatible with most
May be self s.tanding, small
May mit with most other
Should not be mixed with
COMMERCIAL/INDUSTRIAL
and Construction Trades.
and some office uses.
commercial but not industrial
center, or part of large
commercial uses and some
most other commercial uses.
USES
May support some offices and
Suited for integrated
uses. Ideal for integrated
integrated center or
industrial uses.
services. Not suitable with
centers with on site
center.
shopping area.
General retail and offices.
ammenities including some
®
o
retail uses.
r
�
1
RELATIONSHIP TO
Within easy commuting
Within easy commuting
Close to residential areas.
Adjacent to residential
Adjacent to residential
Should be separated from
RESIDENTIAL AREAS
distance to residential
distance to residential
Adjacent Multi -family
development but buffered.
development but buffered,
residential development.
areas.. Not suitable as
areas. Not suitable as
development should be
adjacent use.
adjacent use unless heavily
buffered.
buffered.
rY,
BOOK 92 PAGE 8400
Attorney Henderson noted that the above table is not an
adopted portion of the Comp Plan, but it provides insight as to the
planners' thoughts about siting commercial nodes. He pointed out
the two categories of Retail & Services and Convenience Goods &
Services. He noted that they seem to permit the location of
convenience goods and services adjacent to residential development
with buffers, but over on Retail and Services, it suggests that
they be close to residential areas, but certainly not adjacent to
single family residences.
Attorney Henderson stressed that there is an adjacent problem
here with single-family homes on Bowline Drive. Admittedly, the
property owners had the opportunity since the 1980s to question the
node and the commercial zoning. He realized that the Board is sort
of stuck with the zoning and with the Comp Plan, but he felt there
is flexibility in the zoning and the Comp Plan to deny this project
on the basis of incompatibility.
Attorney Henderson introduced his client, Jack MacLean, who
plans to present specific information on some deficiencies in the
site plan itself and some other matters.
Jack MacLean, 139 Anchor Drive, president of the Moorings
Property Owners's Association, planned to talk about three specific
areas they believe are failures in the site plan -- not enough
green space -- Mooringline Drive is a major roadway driveway -- the
area from which customers would come.
Mr. MacLean distributed copies of Exhibit 3, a 28 -page
presentation of arguments supporting their request that the
Halvorsen site plan appeal be denied.
75
July 12, 1994
� O
Table of Contents
Rey Definitions
Supermarket Survey Conclusions
Aerial Photographs of Indian River
County Supermarkets
Number of Residences Located Within
300 ft. of Supermarkets
Estimated Value of Resident Homes and
Apartments Within 300 ft. of I.R.C.
Supermarkets
Letter from David Nolte, Indian River
County Property Appraiser
Delivery Truck Companies That Supply
I.R.C. Supermarkets
Approximate Area of Maneuvering Pavement
Queuing Study of Existing Publix
Supermarkets (July 1994)
Photographs of Unloading Zones at I.R.C.
Supermarkets
LDR Violations
a) Median Opening Violations
b) Unloading Area Violation
c) Erroneous Categorization of Windward Way
Drive
Summary
76
July 12, 1994
2
3
4-11
12
13
14
15
16
17
19-20
21
22
23
28
92 PnF850
BOOK 92 FACE 851
Median Opening Violation
Please refer to letter from Attorney Steve Henderson to Robert
Keating.
952/29 "No medial opening shall be spaced at a distance less
than six hundred sixty (660) feet from any signalized
intersection or median opening, except that median
openings may be spaced at a lesser distance based upon a
traffic study and impact analysis; but in no case shall
median openings be spaced at less than three hundred
thirty (330) feet. Public streets shall be given
priority consideration for median openings."
901/30 "Median (traffic) : The physical portion of a highway
separating the travelled ways for traffic in opposite
directions."
952/29 "These regulations may be modified by the public works
director on a case by case basis when warranted by
circumstances unique to the particular development."
Webster unique 1. existing as the only one or as the sole
example. 2. having no like or equal; standing alone in
quality; unequaled; unparalleled; incomparable. 3.
impossible to duplicate within a stated or implied scope,
as a geographical area or range of experience; unlikely
to be matched; extremely rare. 4. limited in occurrence
to a given class, 'situation or area. 5. limited to a
single outcome or result; without alternative
possibilities. 6. the embodiment of unique
characteristics; the only specimen of a given kind.
77
July 12, 1994
TRAFFIC
(500) to two thousand (2,000) vehicles. The
iainimum distance from the street right-
of-way line at any ingress or egress
driveway to any interior service drive or
parking space with direct access to such
driveway shall be a minimum of fifty (50)
feet measured on a line perpendicular to
the street right-of-way. Intermediate drive-
ways shall provide minimum ingress lanes
fourteen (14) feet wide and egress lanes
twelve (12) feet wide. Where left and right
turn egress is allowed, dual egress lanes
shall be provided with a minimum four -foot
separation from the ingress lane. Interme-
diate driveways sliall provide minimum ve-
hicle turning radii of thirty-five (35) feet.
3. ,Major driveways. A major driveway shall
provide fqr a maximum average daily trip
volume of two thousand (2,000) to five thou-
sand (5,000) vehicles. The minimum dis-
tance from the street richt-of-wav line at
any ingress or egress driveway to any inte-
rior service drive or parking space with di-
rect access to such driveway shall be one
hundred (100) feet_ measured on a line per-
pendicular to the street right-of-way. Major
driveways shall provide minimum 'ingress
lanesfourteen(14) feet wide and egress
_lanes twelve (12) feet wide. Where left and
right turn egress is allowed, dual egress
lanes shall be provided with a miiumum
four -foot separation from the ingress lanes.
Mejor driveways shall provide minimum-ve-
hide turning radii of forty (40et.
;(9) Median openings. To assure traffic safety,
capacity and ontrol, median openings located
,within traffic-wav com hall be spaced the
,maximum distance a t w safe and
adequate traffic circulation.
(a) Median openings shall be permitted only
i where traffic studies justify the need, taking
into consideration the following:
1. Potential number of left turns into
§ 952.13
3. Distance of proposed opening from ad-
jacent intersections or other openings;
4. Length and width of the left -turn
storage lane as functions of the esti-
mated maximum number of vehicles to
be in the lane during peak hours; and
5. Traffic control, including signalization,
that will be necessary at the median
cut. If a traffic signal at a median cut
is within one thousand five hundred
(1,500) feet of another traffic signal, the
two (2) shall be coordinated.
(b) No median opening shall be spaced at a
distance less than six hundred sixty (660)
feet from any signalized intersection or me-
dian opening, except that median openings
may be spaced at a lesser distance based
upon a. traffic study and impact analysis;
but in no. case . shall median openings be
spaced at less than three hundred thirty
(330) -feet. Public streets shall be given pri-
ority consideration for median openings.
(c) All median openings shall include adequate
storage and transition lanes, where war-
ranted.
(d) These regulations may be modified by the
public works director on a case by case basis
when warranted by circumstances unique
to the particular development.
(Ord. No, 90-16, § 1, 9-11-90; Ord. No. 93-8, § 19,
3-18-93)
Section 952.13. Vehicular circulation.
(1) Off-street parking areas. All developments
shall comply with the minimum off-street parking
requirements, of this code, as established in
Chapter 954, Parking. Such parking areas shall
be landscaped in compliance with the provisions
of this Code. Where the public works director
deems necessary, applicants shall install at their
expense pavement markings and/or external
traffic control signs to ensure the safe movement
of traffic.
driveways; (2) Off-street loading areas. All developments
2. Length of frontage along the street requiring off-street loading areas pursuant to
right-of-way line of the property pro- Chapter 954, Parking, of this Code, shall provide
posed to be served; such areas in locations which will not interfere
Supp. No. 10 952/29
78
July 12, 1994
BOOK 92 FADE 85
BOOK 92 PAGE 85 J'
The unloading area for this supermarket does not comply with county
regulations
952/26 "Loading and unloading activities must in no way hinder
vehicular ingress or egress."
1. This unloading plan does not permit this since it can
fail whenever two or more trucks are ready to unload at
the same time, and must fail with three or more trucks.
2. Proof has been provided that on a frequent and
repeatable basis 3 or more vehicles are attempting to
unload at the same time (see queuing study)
3. This site is one of the few in I.R.C. that attempts to
utilize a .storage area in combination with a driveway for
planned automobile parking.
4. The applicant has not proved and cannot prove that this
Publix plan will meet article 952/26.
79
July 12, 1994
M
M s
§ 952.12 INDIAN RIVER COUNTY CODE
sions of section 952.12(5) Driveway width
Number of
and rum.
Drive In Windows
or Bays Queue Distance
(f)
Loading and unloading activities must in
3 10 vehicles/200 ft.
no way hinder vehicular ingress or egress -
4 13 vehicles/260 ft.
(g)
All driveways shall maintain adequate
5 16 vehicles/320 ft.
sight distance, as provided in this code.
6 19 vehicles/380 ft.
(h)
Ingress lanes:
These standards may be reduced by the com-
munity development director upon showing
1. Ingress left -turn lane requirements: A
of good cause.
twelve -foot wide left -turn lane with ap-
propriate storage and transition shall
(c) Commercial, sites having fifty thousand
be provided at each driveway where the
(50,000) square feet of. gross floor area or
peak hour inbound left -turn volume is
more shall provide for an exclusive access
thirty (30) vehicles or more.
drive at the primary entrance of the devel-
2. Ingress right -turn lanes: For any
opment and all points of ingress and egress
project, a twelve -foot wide right -turn
located on a collector or arterial roadway,
lane with appropriate storage and tran-
not including service entrances. Said
sition shall be provided at each
drive(s) shall be used for providing access
driveway where the adjacent roadway
to all parking aisles and shall not contain
average daily traffic exceeds ten thou -
parking spaces; also, parking space(s) shall
sand (10,000) vehicles per day, per -
not directly access onto such exclusive ac-
mitted roadway speeds exceed thirty -
cess drive(s).
five (35) miles per hour, and driveway
(d) Provisions for circulation between adjacent
volume exceeds one thousand (1,000)
parcels on arterial roads shall be provided
vehicles per day with at least forty (40)
through coordinated or joint parking sys-
right -turn movements during peak pe-
tems, or other methods as approved by the
riods. For any project, a right -turn lane
public works director.
as described in this subparagraph shall
be provided at each driveway where
(e) Driveway entrances must be designated to
right -turn ingress volumes exceed
accommodate all vehicle types having occa-
seventy-five (75) vehicles per peak hour.
sion to enter the site. The following table
presents vehicle *types with their respective -
- (2)
Number and spacing of driveways.
minimum inside and outside turning radii:
(a)
One driveway shall be permitted for in -
Egress Ingress
gress and egress purposes to any project.
Type (feet) (feet)
(b)
The approving body may either increase or
Passenger car, van, 25 25
reduce the following separation distances
pickup
based upon a recommendation by the public
Single unit truck 35 42
works director after an analysis of street
Bus 45 42
frontage trip generation, or other factors,
Tractor -trailer (40 45 40
as deemed appropriate:
feet)
(c)
A joint access driveway shall be considered
Tractor -trailer (50 45 45
as adequate access. for any two (2) adjacent
feet)
parcels and shall be encouraged. For a
Tractor -trailer (60 45 45
project where more than one driveway is
feet) -
requested, the applicant shall submit a
Driveway entrances off collector and arte-
traffic report justifying the need, describing
rial routes shall conform with the provi-
the internal circulation and parking system,
Supp. No. s 952/26
80
July 12, 1994
Boa ' 92 PACE 854
BOOK 92 FACE 855
The applicant made the driveway splits by a "quick and dirty"
use of traffic counts, with no regard for the changed driving
patterns which must follow construction of this development. We
have made a far more analytic evaluation which shows different
splits, which leads to the categorization of the Windward Way
driveway as a "Major" driveway, and must cause rejection of this
site plan due to failure to meet article 952/29.
Driveway In4r*ess Egress Analysis
The basic criteria for this analysis is a judgement -weighted review
of driveway ingress/egress, based on the following criteria:
A) Drivers tend to favor the closest driveway.
Measurements and calculations for this criteria are
made external to the shopping center.
B) Drivers tend to enter the driveway which leads to
the drivers needing the least time traveling the
shopping center to get to their optimum parking
space. Measurements and calculations for this
criteria are made internal to the shopping center.
C) Judgement must then be used to integrate the above
issues.
Mr. MacLean distributed envelopes with little pieces of wood
cut into scale models representing various sizes of delivery trucks
and asked the Commissioners to arrange the pieces along the back of
the property as if they were trying to unload. He suggested they
take the largest truck first and put it in the depressed delivery
ramp. He wanted the Commissioners to see what happens when 6 or 7
trucks make their deliveries at once. Mr. MacLean was convinced
that you can't put 6 trucks behind there and not get in the way of
parking, and he pointed out that it is a 2 -way road and that the
entire 25 -ft. road has to be kept clear in order to maintain the
County's regulations. He stressed that Chapter 952.26 stresses
that "Loading and unloading activities must in no way hinder
vehicular ingress or egress."
Discussion ensued regarding the intent of the ordinance that
the deliveries to the facilities will not interfere with the
81
July 12, 1994
customers coming in and out, and by segregating the deliveries to
the rear of the stores fulfills, to some degree, the objective to
segregate deliveries from the customers using the facility.
Mr. MacLean next addressed the issue of Windward Way being a
major roadway. If it is a major road, they maintain that this site
plan fails because it does not have the required 100 -ft. separation
from the main road. He also questioned the calculation of 1997
car movements within Windward Way.
In conclusion, Mr. MacLean presented the following summary:
Summary
1. 87% of all Moorings residents voted against this project; over
700 families who could not be here at this meeting wrote letters
opposing Publix. The South Beach Property Owners Association and
its members oppose it. With almost a thousand letters and
communications against this property - only three people wrote in
favoring it.
2. The reason that this shopping center (CL Zoning) was not
strongly opposed in the comprehensive land -use plan is that it was
then described as a "specialty food market", "shopping village", "a
number of boutiques" and "groups of individual diverse shops". 'Now
it has become a supermarket - and larger than the Publix at Miracle
Mile.
3-. In a survey of nine other supermarkets in the county the
proposed Sea Mist project:
A) .Effects more residents (within 300 ft.) than the
total of all nine existing supermarkets.
B) Could effect property values of almost $40 million
of residences, five. times greater than of the total
of the other nine supermarkets. The county
assessor has real concerns about this issue.
Potential degradation of property assessments run
into the millions of dollars
C) Would be only supermarket in the county: that forces
all traffic onto non -arterial roads.
D) Would be one of the -few -supermarkets in the county
that forces truck unloading to share space with
automobiles.
4, The Site Plan violates'three important criteria contained in
the•county planning regulations:
A) The new median cut on the Mooring Line median is
too close to the existing Bowline Drive median cut
article 952/29, Section 9.
82
July 12, 1994
BOOK 92 PAGE 856
BOOK 92 PACE 857
B) The unloading space •behind the store must interfere
with free flow of vehicular traffic article 952-21.
C) The Windward Way driveway has been incorrectly
described as an intermediate driveway. Proper
classification as a major driveway (over 2
movements/day) and thus, the site plan is in
violation of article.
{
This Site P1an:Does'Not Meet Indian River County Regulations
and
Must Be Rejected.:
Mr. MacLean advised that he would ask Michael Dudeck, Roger
Mosely and Scott McGuire to talk briefly and then would come back
to Mr. VitunacIs letter of July 6 because he felt it proves his
case.
Michael Dudeck, traffic engineer from D & D Transportation
Associates, Inc. of Boca Raton. Mr. Dudeck commented from the
following letter dated 7/12/94:
D & D Transportation Associates, Inc.
7301 A W. Palmetto Park Road
Boca Raton, FL 33433
July 12, 1994
Mr. John MacLean
Moorings Property Owners Association
139 Anchor Drive
Vero Beach, FL 32963
Re: Traffic Engineering Review
Traffic Impact Analysis
Seas Mist Shoppes
SR Al A Indian River County
Dear Mr. MacLean:
During the past few months, you have asked D & D Transportation Associates, Inc. to
review the Traffic Study accomplished by Kimley Horn and Associates for the
proposed Sea Mist Shopping Center just west of SR Al A between Windward Way on
the south and Mooring Line Drive, the major roadway in the Moorings, on the north.
83
July 12, 1994
The initial work we did was limited in scope and was easy to address. It included a
review of the Kimley Horn Traffic Study and a determination whether or not the effort
was in conformance with Section 952.07 of the Indian River County LDR's.
My review concluded that the mechanics of the Study were in conformance with
generally accepted traffic principles. At the time I completed my review, I did not have
the final Site Plan, nor was I asked to review Internal Circulation and traffic demands
on the project's proposed driveway operation.
Subsequently, Mr. Scott McGuire and I discussed my preliminary review, and I was
asked to review the report again in order to address the traffic demands that full
development of the proposed Site Plan would place on the driveways serving the Site
as well as any other possible areas of LDR non-compliance.
By way of background, in 19901 had a major input in developing Section 952 while
serving as Indian River County Traffic Engineer. Upon receipt of this assignment from
Mr. McGuire, and after thorough review, I again today confirm my position that both
driveways should be treated as "Major Driveways" since they fully meet the code
definition as well as promoting: traffic safety and reducing the possibility of internal
congestion occurring within the Site.
Even using the Kimley Horn methodology, the 2,000 TEDD "trigger" was definitely
exceeded for the Mooring Line Drive and only missed by 3 TEPD (2 in and 1 out move
for a 24 hour period). The need for both driveways to be classed as "Major" was
because if the Windward Way traffic distribution was only 0.1 % more, the 2,000 TEPD
trigger will be exceeded. A recent review of the number of potential shoppers residing
along SR Al indicated that if the Moorings population were removed from the
census data, the number of potential customers south of the Site along SR A 1 A would
approach the number to the north of the Site between the Moorings and the 17th
Street Bridge. This would indicate that the Kimley Horn Report underestimated the
number of people using the Center from the south. Even if it was off by as little as
0.1 %, the Windward Way driveway would officially have to classified as Major.
Subsequently, I reviewed the July 12th Property Owners presentation to the County
Commissioners on this issue of driveway classification. I find this work very
comprehensive in nature, and I am in agreement with it. The report is thorough and
makes several excellent points which most reports normally don't address in detail.
A second important issue is the subject of whether the second median cutin Mooring
Line Drive was in conformance with the County LDR's. In making this review, I was
shown the memorandum by Staff that this median cut was not subject to the LDR's
since it was not listed on the County "Thoroughfare Plan". I strongly dig -agree with this
position by Staff. Section 952.03 of the LDR's clearly state that "the requirements set
forth in this Chapter should be applicable to all land development activities in the
unincorporated area of Indian River County".
This clearly indicates that all of the operational safety criteria from the project have to
meet the minimum standards set forth in Chapter 952 of the LDR's, and the present
plan of two closely spaced median cuts along Mooring tine Drive does not satisfy this
requirement. My findings indicated that the treatment of the driveways, median cuts,
internal loading areas, and parking criteria involved with the proposed Sea Mist Site
Plan must meet the LDR standards. My professional judgment has not changed.
84
July 12, 1994
5OOK 9� AGE 858
boot 92 FACE 859
I have also accomplished an additional review of the project with the specific
objectives of evaluating whether or not Mooring Line Drive was a Collector or Local
roadway.
A field review indicates that Mooring Line Drive "collects the traffic from several Local
Access Streets and connects the traffic onto an Arterial, namely SR Al A". A review
indicated that Mooring Line Drive has an 80 foot Right -of -Way, which is what the
County has as a minimum width for a "collector". It also functions as a Collector. The
mere fact that staff has yet to place Mooring Line Drive on the "Thoroughfare Network"
does not change its function. The Thoroughfare Network is subject to periodic review
by Staff, and it is an ever changing Network.
I have more than 30 years of Traffic and Transportation Engineering experience at the
Municipal, County and State levels and have always advocated applying at least
Minimum Design Standards to the roadways being used by the motoring public.
Another important issue is the mixing of truck unloading and automotive parking in this
Site Plan. In my opinion, the studies and field reviews of truck loading and unloading
done by the property owners is completely in line with my experience. Several trucks
often make deliveries at the same time and thus could cause circulation problems for
this site. At the present time, I utilize a Shopping Center driveway behind a Publix
Market for my office. Several times in the past few months, other motorists and I
wishing to park adjacent to our offices were completely blocked by delivery trucks. We
were forced to go through the entire Center before we could reach our destination.
Generally and ideally, the service areas in the rear of supermarkets are for the
exclusive use of delivery vehicles. The proposed plan causes a mixture of private
vehicles and heavy duty trucks which is contrary to code requirements.
The latest plan is a violation of Section 952.26 of the LDR's because it will encourage
an interfacing of heavy delivery and service trucks with passenger vehicles.
In conclusion, based upon my research, knowledge of the County LDR's, projections
included in all of the above mentioned data, it is my Professional Traffic Engineering
Judgment that, as designed, the proposed development does not meet the LDR
standards with regard to a) the second median cut on Mooring Line Drive which
adversely safety, b) the incorrect classification of the Windward Road Driveway, c) the
certainty that the loading provisions of 952126 are not met by the proposed plan and d)
The Windward Way Driveway should be a "Major Driveway with a 100 foot queuing
area per Section 952-29 of the LDR's.
Sincerely,
Michae. GuG_ck
Jr. .Eoe.
Raj Bhanmugan, senior associate of Barton-Aschman Associates,
Inc., commented from the following letter dated 7/12/94:
85
July 12, 1994
BARTON-ASCHMAN ASSOCIATES, INC.
5310 N.W. 33rd Avenue, Suite 206 • Fort Lauderdale, Florida 33309 USA • (305) 733-4220 • Fax: (305) 733-4665
July 12, 1994
Mr. Jack McLean
139 Anchor Drive
Vero Beach, FL 32963
RE: Sea Mist Shoppes Review
Dear Mr. McLean:
Per your request, I have thoroughly reviewed the traffic
report and the revised site plan prepared 'by the consultant,
Kimberly Horn Associates, for the Sea Mist Shoppes development.
The consultant apparently has followed the current engineering
practices and standards in developing this report. One of the most
questionable items in the analysis is the traffic split towards the
north and south of the site.. They have distributed the traffic,
under the county engineering directions, sixty (60) percent to and
from north, thirty (3 0 ) percent to and from south, . and five ( 5 )
percent each to and from east and west. This directional split
could determine how much of the site traffic will be using Windward
Way as opposed to Moorings Drive. Of course, the amount of project
traffic on these roadways and subsequently on'the driveways has a
bearing on the driveway design.
The county engineers staff are probably correct in
recommending 60/30 traffic splits from north and south considering
the area of influence to be Indian River County. In my opinion the
area of influence should extend further south to the North St.
Lucie Bridge. Therefore based on 1990 census data and the
residential population data that you provided me a conservative
estimate would be an equal split of the traffic from the north and
the south. Evenly distributing the 4438 trips between the north
and the south driveways of the Sea Mist Shoppes site -will require
both these driveways to be designated as "Major Driveways" with
100' set back in accordance with Section .952.29 of the Indian River
County LDR.
Additionally, I would like to bring the following points to
your attention:
• The traffic report cites 57.9 percent passerby capture based
on the ITE trip generation manual. The manual, however,
cautions this estimation and recommends using engineering
judgement whenever possible. In my observation this figure is
high and a lower value based on engineering judgement should
have been used.
• An operating
AIA is used
observations
that.
July 129 1994
speed equivalent to posted speed of 45 mph on
in the intersection analysis. From my brief
the operating speed appeared to be higher than
86
boa, 92 PAGE 060
BOOK 92 MME 861
• The site plan shows 67 parking spaces (approximately 29
percent) to be located along the back of the building which
are in conflict with the loading and unloading area. This
concern is further magnified by the less than average
maneuvering area available for delivery trucks. According to
a recent survey conducted by Knight, McGuire & Associates,
Inc. the Sea Mist Publix site found to have less than half the
maneuvering area provided by similar supermarket sites in the
area.
You also raised the question if the two openings along
Mooringline Drive should be defined as median openings. According
to AASHTO green book "A median is defined as the portion of a
divided highway separating the travel way for traffic in opposite
directions: Therefore, the physical separator that exists in.the
middle of Meoringline Drive is called a median separator, and since
these openings provide access to left -turning vehicles they are
functional median openings. Since the two openings on Mooringline
Drive are functional median openings their locations do not meet
the 330' spacing referenced in the LDR. These spacing
requirements -become a major concern due to the additional traffic
from the Sea Mist Shoppes site. Over 1000 trips per day are
anticipated to make left turns into the site through these median
openings; approximately 20 to 30 of which would be trucks.
I hope these findings help you in your course of action.
Should you have any questions, please call me.
Sincerely,
BARTON-ASCHMAN ASSOCIATES, INC.
Raj Shanmug , .E.
Senior Associate
E0 fta PARSONS
TRANSPORTATION GROUP
87
July 12, 1994
00
00
Ca
0
0
001�
-o
On
Cn
B) Internal Traffic Flows (Based on Distance, Time and Conveniece Assumptions)
(i) Traffic Flow Only on the Front of the Buildinas
Trip
Generation
Sq Ft in
Thsnds
No. of
Trips
Generated.
NIS Split
(from
IIIA)
Driveway Traffic Volumes
Mooringline Mooringline Windward
Drive (West) Drive (East) Way
Publix
27.86
2530
50/50
See Table Below
1265
1265
Unnamed
Stores
10.7
972
40/60
See Table Below
389
50
583
Outparcel
Stores
5.0
454
40/60
See Table Below
182
272
Bank
3.0
272
80/20
0
218
54
Total
46.56
F4438
Total
46.56
4228
49/51
See Table Below
2054
2174
(i) Total Traffic Flow
Front
Parking
-
4228
49/51
0
2054
2174
Delivery
Trucks
-
40
50/50
20
0
20
North Back
Parking
-
50
100/0
50
0
0
South Back
Parking
-
120
33/66
40
0
80
Total
46.56
F4438
49/51
110
2054
2274
1
1
.1
g00K 92 FADE ��
Scott McGuire, engineer from Knight, McGuire & Associates,
Inc., commented from the following letter dated 7/12/94:
Knight, McGuire & Associates, Inc.
Consulting Engineers and Planners
2901 Cardinal Drive
Vero Beach, Florida 32963
David S. Knight, P.E.
Scott B. McGuire, P.E.
July 12, 1994
Mr. Jack McLean, President
Moorings P.O.A.
139 Anchor Drive
Vero Beach, FL 32963
Publix Study
Dear Mr. McLean,
Phone 407-231-2533
FAX 407-231-1398
Enclosed please find graphs and other data related to our
study of the shopping center -sites in Indian River County. As you'
can see from the enclosures it is apparent that more than two
trucks will be occupying the loading areas for a substantial
portion of time. Given the Sea Mist Shoppes site geometry as
submitted it is obvious that the loading and unloading will
interfere with the circulation of the passenger vehicles behind the
supermarket. This condition'willbe in violation of Indian Rivera
County Code Section 952/21.
In addition to the above referenced information I have also
supplied calculations related to the approximate area of
maneuvering pavement for similar supermarkets in Indian River
County. We have found that- the proposed area at the Sea Mist
Shoppes is less than one-half of the County average and in my
engineering judgement is inadequate.
call.
If you have any questions please do not hesitate -to give me a
- -
Sincerely,
Scott B. McGuire, P.E.
Rol_ dCd/Rft7dabk
89
July 12, 1994
With permission from Chairman Tippin, Attorney Ralph Evans
questioned Mr. McGuire about the studies conducted by McGuire &
Associates, specifically the data regarding loading zones.
Mr. McGuire advised that the number of loading zones at the
different stores definitely varied; some met the requirements, some
did not. He noted that two loading zones would be required of a
typical Publix in this county. Most of the stores have a loading
zone on either corner of the store rather than having both in one
spot.
Lengthy debate ensued regarding loading zone requirements and
whether anyone could regulate the number of trucks that come in at
any given time.
In response to Commissioner Bird's questions, Mr. MacLean
explained that the problem is with 6 or 8 trucks sitting in the
back of the store without hindering a free flow of vehicular
traffic.
Mr. MacLean referred again to Attorney Vitunac's memo of
7/6/94 on Standard of Review for Site Plan Approval. Item #2
states, "However, if they do become an issue, the burden of proof
is on the applicant to present competent, substantial evidence
showing compliance with each objectively determinable standards
requirement." Mr. MacLean felt that Attorney Vitunac has made it
crystal clear that they (Halvorsen) have the burden of proof on the
site plan issues, and he didn't think they have come close enough.
Attorney Warren Dill stated he is representing Gene Winne,
William Lampert, Robert Salmon, John Zilg, and George Millington.
He advised that because of the time factor he would like to ask
Peter Armfield to come forward at this time to give his
professional opinion as to the possible devaluation of property
surrounding the proposed shopping center.
Peter Armfield, president of Armfield-Wagner, real estate
appraisers, found that there are no exact replications_ of this type
of development where a luxury residential community is located this
closely to a shopping center which includes a supermarket. After
looking at other shopping centers and other Publix stores and
studying lot sales on the beach, they noticed there is a
detrimental effect on lot sales when they are located next to
incompatible uses such as condominiums or commercial zoning.
Traffic influences are generally thought to be negative and
decrease the quality of life in such a location. The lot sales
that they investigated indicated as much as 30 to 40 percent
decrease in value from interior lots that did not have those kinds
.9
July 12, 1994
BOOK 92 FACE 864
BOOK 92 PnE 865
of influences. Based on their research, it is his opinion that the
properties closest to the proposed shopping center probably would
have a decline in value in the range of 10 to 15 percent. He was
unable to form a conclusion on other property located within the
Moorings.
Attorney Ralph Evans interjected a question as to whether Mr.
Armfield felt that those same properties might be affected in a
positive way, but Mr. Armfield explained that his conclusion was
that it would be uncertain; he didn't think he had sufficient
reasoning to support either a negative or a positive influence.
In response to a question asked by Ron Ferrin, one of the
owners of the subject property, Mr. Armfield gave the same answer
that he had given to Commissioner Bird earlier. They found no
measurable significant difference in the prices of the lots
abutting the proposed shopping center property whether they were
purchased years ago or more recently.
Attorney Warren Dill wished to address several procedural
items. He requested that the record for this afternoon's meeting
contain the following items:
1) All documents that were admitted into the record of the
Planning & Zoning Commission Meeting of June 28, 1994.
2)
Staff's
report
and
attachments
for today's
meeting.
3)
Minutes
of the
P &
Z meetings
of 5/12 and
6/28/94.
4) Letters received by the Board from various residents.
TO:
Board
of
County
Commissioners
FROM:
Alice
E.
White,
Executive Aide
DATE: July 11, 1994
SUBJECT: Correspondence on the Proposed Publix Store at the
Moorings Development
Due to the restrictions placed on receiving correspondence with
respect to cases coming before the County Commission when seated
as a quasi-judicial board, we have held the correspondence sent
to County Commissioners regarding the proposed Publix store at
the Moorings development in our office.
Mr. George Shaw and Mr. Walter Bush brought in three stacks of
letters and they claim that these total 1200 against the proposed
Publix store. Through our office mail, we have received' a total
of 64 letters against the store. I do not have the staff or the
time to check and see if there are any duplications 'in this
correspondence.
91
July 12, 1994
The letters in opposition list the following reasons for
opposition: traffic concerns
aesthetic character of neighborhood
lowering of property values
noise and bright lighting
night deliveries and late hours
need for additional police protection
violation of County Code regarding compatibility
with the built and natural environment
litter
air pollution
no need for supermarket
river pollution
varmints
supermarket not same as convenience retail store.
We have also received 4 letters and 1 phone call in favor of the
Publix store listing the following reasons for support:
property rights of land owner
will add to residents property values
decrease of traffic on US#1
lack of grocery store on barrier island
fulfills a need.
The correspondence is available for review at the appeal hearing,
as well as petitions and correspondence presented at the Planning
and Zoning Commission meeting on May 12, 1994.
Chairman Tippin acknowledged the submission of the above
documents listed by Attorney Dill.
NOTE FROM BARBARA BONNAH, DEPUTY CLERK, CLERK TO THE BOARD:
All of the above listed items plus any and all exhibits presented
during this meeting that haven't been inserted into these Minutes
will be placed on file in the Office of the Board of County
Commissioners for 3 years. (Please see index at the back of these
Minutes.)
Attorney Dill commented extensively from the following memo
dated 7/5/94, noting that he understood today's backup did not
include a copy of the memo he wrote to Attorney Vitunac:
92 BOOK 92 pnF 866 -
July 12, 1994
Fr- -1
BOOK 92 PACES67
MEMORANDUM ON THE STANDARDS FOR
SITE PLAN REVIEW
DATE: July 5, 1994
TO: Charles P. Vitunac
County Attorney
FROM: Warren W. Dill, Esq.
RE: Standards and Requirements for the Review of Site Plans
This memorandum is in response to your draft memorandum dated June 17, 1994
pertaining to "Standard of Review for Site Plan Approval". This response will focus primarily on
the Case Excerpts numbered 1 through 15 in your draft memorandum.
As we have previously discussed and I believe you agree, your reference to the term
"technical requirements" throughout the memorandum is inaccurate. I realize that the Planning
Department repeatedly uses this term (technical requirements) but it is not the scope of review
established in the Land Development Regulations (LDRs) nor is it the standard by which the
courts have reviewed Site Plan decisions. The correct basis for the review of site plans is found
in Chapter 914, LDRs:
Chapter 914. Site Plan Review and Approval Procedure
Section 914.02. Purpose and intent.
The -purpose of this section is to establish uniform requirements and procedures
for reviewing applications for site plan approval. It is further the intent of this
section to establish procedures and standards to implement the goals and policies
of the Indian River County Comprehensive plan, and to ensure compliance with
the intent, standards, and procedures of all applicable land development
regulations.
Section 914.15. Review standards and requirements.
(1) Purpose and intent. The purpose of this section is to establish standards for
reviewing site plans in order to ensure compliance with applicable county
regulations.
(2) Applicability. Site plans shall be reviewed pursuant to all applicable zoning
district regulations and regulations for specific land uses, as applicable.
(7) Use and maintenance of site and zoning standards.
(b) All zoning district criteria must be met, including but not limited to:
(10) Use(s).
(8) Other Critical Site Plan Project Requirements and Review Standards. ...Site plan
applications shall comply with all land development regulations ...
(2) Zoning, chapter 911;
(All zoning requirements must be complied with.)
The phrase "technical requirements" does not appear above, its use by staff is misleading
and there is no basis in the LDRs for its use and limited connotation.. The term implies
mechanical things like "counting the number of parking spaces", "calculating the percent of open
space", "checking the number of trees required for buffering", etc. These are certainly Bart of the
review procedure but they are not the only factors (standards) to be considered when a site plan
93
July 12, 1994
in reviewed. If only mechanical/mathematical factors were to be considered why would site plans
be subject to an independent review by the P & Z Commission and the County Commission.
These bodies are not merely a "rubberstamp" for staffs recommendation.
The standards and requirements for review of site plans are established by local
government as a legislative act, when they are incorporated in the LDRs. The court's review is
limited to an examination of the review standards and a determination of whether those
standards have been met by the applicant. The burden of proof is on the applicant to show by
competent and substantial evidence that all relevant standards in the LDRs have been met. It is
not staffs responsibility to carry this burden.
The relevant standards in the LDR's require the site plan to meet all applicable zoning
district regulations (See 914.15(1),(2) and (8) above). The purpose and intent of the
Commercial zoning district and the definition of the Limited Commercial (CL) zoning district are
standards in the LDRs that must be met before a site plan can be approved.
Section 911.10 Commercial districts.
(1) Purpose and intent. These districts are intended to permit the development of
commercial property to ... promote the economic well being of the county, .. .
and ensure commercial development compatible with existing and proposed
development.
Section 91.10 General Districts.
(2)(e) CL: Limited commercial district. The CL, limited commercial district, is intended
to provide areas for the development of restricted commercial activities. The CL
district is intended to accommodate the convenience retail and service needs of
area residents, while minimizing the impact of such activities on any nearby
residential areas.
The definition of the CL district is a very specific standard that must be met. It is the
heart of the site plan application, without this standard there would be no site plan for the Sea
Mist Shoppes. Certainly it is reasonable to expect an applicant to meet this standard.
Unfortunately for everyone, the proposed site plan for the Sea Mist Shoppes does not meet this
standard and various others (the economic well being of the County is at risk due to a
devaluation of surrounding property; the use is not compatible with surrounding properties; the
second median cut on Mooring Line Drive is contrary to the LDRs; the procedure to establish
the traffic projections and directional flow fails to adequately consider all relevant factors).
Having reviewed the above standards and requirements that site plans are expected to
meet in Indian River County, I will next list each of the 15 excerpts (quotes) from your
memorandum and follow each one with my analysis.
CASE EXCERPTS
1. "... the function of a ... commission is reviewing a property owner's proposed site
plan for development of the owner's property in accord with the city zoning laws
was not legislative in nature, but rather administrative (i.e., quasi-judicial)." (City
of Delray Beach)
This statement is correct but it could confuse the Commissioners. The fact that site plan review
is quasi-judicial, rather than quasi -legislative, mainly affects the way subsequent, judicial review (of
the Board's decision) is conducted - the traditional "fairly debatable" standard (for legislative
actions) will not be applied by a court reviewing the Board's action on a site plan review.
94
July 12, 1994
92 rnF 868
I
BCOK 9 FAIIJE S6
This excerpt supports our position when it states that the Commission is to review the site
plan "in accord with the City zoning law'". In our case, the Commission will review it in accord
with the LDRs, which includes all zoning requirements, i.e. the limitation of the use to a grocery
store and the definition of the CL district, as well as other factors referenced above.
2. "...a city cannot unreasonable withhold approval (of a site plan) once the
legislatively adopted legal requirements have been met." (City of Delray Beach).
This excerpt notes that the prerequisite for the landowner/developer is meeting
"legislatively adopted legal requirements." These would include the zoning classification (use)
and definition of the CL district as well as other factors previously noted. According to this
excerpt, it is only "once" these requirements have been met that the Board's discretion comes into
play. Even then, this excerpt implicitly recognizes that ("quasi-judicial" or not) the Board retains
some degree of discretion, saying " a city cannot unreasonably withhold approval of a site plan
(emphasis supplied). Removing the double negative, this excerpt says the Board, "once the
landowner meets the "legislatively adopted legal requirements" (assuming that can be done; a
point we do not concede here), can still reasonably withhold approval of a site plan.
3. "All persons similarly situated should be able to obtain plat approval upon
meeting uniform standards. Otherwise the official approval of a plat application
would depend upon the whim or caprice of the public body involved." (City of
Delray Beach)
The above quote talks about "plat approval," and a site plan is not a plat. Plats are simply
maps "showing the location and boundaries of individual parcels of land subdivided into lots, with
streets, alleys, easements, etc., usually drawn to scale," HENRY CAMPBELL BLACK, BLACK'S
LAW DICTIONARY at p. 1036 (5th ed. 1979) (emphasis supplied), while a site plan shows the
layout of a particular lot - i.e., building, driveway "cuts", parking, drainage, etc., location.
Case law recognizes the distinction between platting and obtaining site plan approval, too.
The two cannot be equated, since "even with an accepted subdivision plat, (a landowner can) ...
not begin development except in accordance with an approved site plan." City of Gainesville v.
Republic Inv. Corp., 480 So. 2d 1344, 1345 (Fla. 1st DCA 1985) (bracketed matter supplied).
Additionally, site plan approval is a local matter, determined only according to city or
county ordinances, see, id. (citing Gainesville Zoning Code), whereas platting must be
accomplished in accordance with statewide statutory requisites, found in Chapter 177, Part I,
Florida Statutes (1993).
I.submit that in the instant case, Excerpt #3 will be unnecessarily confusing to the Board
members, since there is no issue of plat approval before the Board.
4. "The administrative procedure for site plan approval is quasi-judicial in nature,
and conducted to factually determine if a proposed site plan submitted by the
property owner conforms to the specific requirements set out in the administrative
regulations governing the erection of improvements on the property . .. Those
conditions should be set out in clearly stated regulations. Compliance with those
regulations should be capable of objective determination in an administrative
proceeding. While the burden may be on -the property owner to demonstrate
compliance, no legislative discretion is involved in resolving the issue of
compliance." (City of Delray Beach).
This excerpt goes back to the first and second excerpts, which it parallels in some
respects. Excerpt #4 is directed to the Board's action after the landowner has shown that "the
legislatively adopted legal requirements have been met," as required by Excerpt #2. Thus, this
Excerpt #4 is only relevant if the Board determines that a "grocery store" is a "supermarket" and
determines that the proposed use meets the definition of the CL district and meets the other,
requirements listed above.
95
July 12, 1994
M M M
The Key phrase in Excerpt #4 is "legislative discretion." (Emphasis supplied). As noted in
the analysis of Excerpt #1, the fact that the Board has no legislative discretion does not mean the
Board has no discretion, but rather that it does have judicial discretion.
This raises the question of what amount of discretion is properly exercised by the Board
in its quasi-judicial capacity. The Delray Beach case was upheld by the supreme court as in line
with Board of County Commissioners of Brevard County v. Snyder, 627 So.2d 469 (Fla. 1993),
therefore Delray Beach means that the degree of discretion described in Synder (specifically at p.
475 of the opinion) applies to site plan reviews. This discretionary language in Synder basically
says that where the landowner's proposal is reasonable under local regulations (i.e., consistent
with the local development plan), but "the Board action is also consistent with the plan," then no
property right of the landowner is infringed by denying the landowner's proposal. The same
degree of discretion is applicable here. So long as the Commissioners action in denying the site
plan is consistent with any one relevant provision in the LDRs, no property right of the applicant
has been taken.
All we are asking the Commissioners to do is to review the site plan for the Sea Mist
Shoppes for consistency with all provisions of the LDR's and disallow the proposed configuration
(size) and site layout sought by the applicant. In Synder the Board had discretion to limit their
approval of a rezoning request to within a specified number of different zoning districts, here, the
Board has discretion to limit their approval to a smaller (down sized) site plan and accordingly,
to deny the proposed site plan because it is not consistent with the relevant provisions of the
LDRs (the size of the use is not consistent with the definition of the CL district, the use devalues
surrounding property, the size of the use is not compatible with surrounding properties, the
second median cut is not authorized and the traffic analysis failed to address certain key factors).
5. "When the public entity ... conducts site plan ... review, it merely applies
established rules of law to existing and uncontested facts." (City of Delray Beach)
The point of this excerpt is that the Board should apply "established rules of law," as
opposed to "unreasonably" denying approval (Excerpt #2) or deciding based merely "upon the
whim or caprice of the public body involved" (Excerpt #3). We agree with this requirement and
direct you to the LDRs cited above for the "established rules of law" that the Board is to follow.
6. ". . . the authority of a town to deny the land owner the right to develop his
property by refusing to approve the plat of such development is, by statute, made
to rest upon the specific standards of a statute or implementing ordinances.
Thereafter, the approval or disapproval of the plat on the basis of controlling
standards becomes an administrative act." (City of Coral Springs)
7. "It is elementary that once a party complies with all legal requirements for platting
there is no discretion in governmental authority to refuse approval of the plat."
(City of Coral Springs)
These Excerpts are taken together because they are subject to the same analysis I raised
in Excerpt #3 above. This is not a "plat approval" issue. By bringing in this case it is a source of
needless confusion for the Board.
Although I disagree with the appropriateness of this case, I find it interesting that you did
not include the Court's decision which was to uphold two out of the three disputed requirements
placed on the plat.
The Coral Springs court opined:
The petitioner's position is that all legal requirements were met inasmuch as the
city commission's additional requirements were not properly promulgated
standards and therefore were not legal. Respondent city points out the existence
of certain standards made applicable by virtue of its home rule powers, in .
addition to the landscape standard contained in a city ordinance applicable to
condition one. See section 166.02, Florida Statutes (1983).
96 kOX 912-1 T-'Atf.8,70
July 12, 1994
BOOK 92 PAGES l
We hold that condition one (requiring an additional 10 foot buffer strip) is validly
imposed as a reasonable application of section 20-153 of the Code of Ordinances "
of the City of Coral Springs. Condition two (requiring entrances and exits to be
labeled "Right Turn Out Only" is similarly valid based upon the legal requirement
that an applicant demonstrate that there will be safe and adequate access in the
area sought to be platted. Broward County v Coral Ridge Properties, Inc., 408
So -2d 625 (Fla. 4th DCA 1981).
The circuit court held the third condition (no construction allowed until the
adjacent road was widened) invalid on the basis that the Court simply finds that to
include such a condition on the plat without any indication in the record as to
when or if said portion of the roadway will be four-laned could preclude the
landowner from any reasonable use of owner's property indefinitely. City of Coral
Springs accordingly was directed to delete condition No. 3 or provide further
hearing on said issue.
Condition No. 3 was in the nature of a building moratorium directed to a specific parcel of land
and without meeting any of the formal requirements for such a moratorium. As such it was
appropriately stricken.
This case supports two of our major contentions: 1) the standards and requirements
found in the LDRs for site plan review encompass more of the regulations than just "technical"
requirements and 2) conditions may be imposed on a site plan approval that do more than simply
implement some "technical' requirement or formalize the applicant's gratuitous agreement to do
something beyond that specifically stated in the LDRs. Reasonable conditions may be placed in
any site plan (that first meets all the standards and requirements contained in the LDRs)
approval that can be backed up from some provisions found in the LDRs. This is especially
important to us because once the developer has a site plan that can be approved, we have a list
of operating conditions that we would like the Commissioners to consider.
8. "Section 14 of the Broward County Plat Act ... provides that such approval may
be subject to such conditions as the governing body of the ... county
commissioners ... may deem to be in the best interest of the public.' Without
pursuing the validity of that provision ... we hold that ..., having met all of the
legal requirements for obtaining plat approval, the county must approve [the] plat
..." (Broward County case)
Again, this excerpt deals with plat approval. In addition to the previously noted
distinctions (Excerpt #3) between plat approval and site plan approval, I would point out that to
my knowledge, the LDRs do not include a vague "catch-all" provision based only on "the best
interest of the public," which is what was decried in this excerpt.
9. "Opposition of surrounding property owners must be considered by the city ...
since the statement of intent of the ... ordinance includes the desire to achieve
aesthetic and compatible relationships between adjacent properties. Buf the
opinions of neighbors by themselves are insufficient to support a denial of a
proposed development. We agree with the city that project density is a legitimate
concern ... But it is a concern that must be addressed and expressed in
appropriate ordinances." (City of Deland)
The gist of this excerpt is that "aesthetic and compatible relationships between adjacent
properties" is RrojReLly considered in site plan review, but that "opinions of ... neighbors" alone
are insufficient for a denial based on such concerns. We have shown and will show again, 1)
through our professional land use planner and expert witness Robert W. Swarthout, AICP that
the proposed site plan is incompatible with neighboring parcels and 2) through our appraiser
Peter Armfield, MAI that this site plan will result in the devaluation of surrounding properties.
Under the Deland case, the Board would be justified in denying the Sea Mist Shoppes site plan;
however, under Synder and Delray Beach, the Board would probably have to tell the applicant
What changes he would have to make in order for the site plan to be approved.
97
July 12, 1994
II
10. 'Me correct law applicable in this case is that the ordinance should be given its
plain meaning and that any doubts should be construed in favor of a property
owner. The circuit court's reliance upon the undefined and uncertain standards
contained in the statement of intent when clear and specific numbers of units are
expressed in that same ordinance is not an interpretation that recognizes the plain
meaning of the ordinance." (City of Deerfield Beach)
This excerpt is misleading and out of context. The quote says simply that if a specific
numeric density is stated in the ordinance, an undefined term ("low-density") elsewhere in the
ordinance cannot be used to deny a site plan due to its density. This is not an issue in the
instant case. This excerpt was cited in the Deland case referenced above and was distinguished
by the Life Concepts case cited in Deland. The standards and requirements for site plan review
are clearly written in the LDR and those are the standards that the proposed site plan must
meet. The above excerpt is from a 1982 case. Since then local governments, such as Indian
River County have spent a great deal of time and money formulating their LDRs to be as clearly
written as possible.
11. 'The site plan merely regulates the layout of a piece of property, the design of the
buildings, and the actual locations of the buildings on that site. The city's zoning
ordinance controls the uses to which a particular piece of property may be put.
The plan board, therefore, is not to be concerned with the particular use of a
piece of property as long as it fits within the permitted uses of the city's zoning
ordinances." (City of Gainesville)
12. 'The plan board members voted to deny the petition because of the parcel's
intended use ... not because it failed to comply with appropriate criteria for site
plan approval." (City of Gainesville) [This was found to be illegal.]
The quotes in Excerpts #11 and 12 above pertain to a situation where the city enacted a
building moratorium while the site plan approval was underway. As I previously noted in the
discussion of Excerpts #6 and #7, if no outright 'building moratorium" is imposed on this site, I
fail to see the relevance of these case excerpts to the instant case. My clients have never
advocated the position that no development should be permitted on this site. All we have ever
requested is that the applicant be required to comply with the LDRs and limit the size of the
commercial use to what is allowed in the CL districts to provide "restricted commercial activities"
to serve the needs of "area residents".
13: 'The test in reviewing a challenge to a zoning action on grounds that a proposed
project is inconsistent with the comprehensive land use plan is whether the zoning
authority's determination that a proposed development conforms to each element
and the objectives of the land use plan is supported by competent and substantial
evidence. The traditional and non -deferential standard of strict judicial scrutiny
applies. (Machado case)
14. "A development order or land development regulation shall be consistent with the
comprehensive plan if the land uses, densities or intensities, and other aspects of
development permitted by such order or regulation are compatible with and
further the objectives, policies, land uses and densities or intensities in the
comprehensive plan, and if it meets all other criteria enumerated by the local
government." (Machado case)
I generally have no problem with the above excerpts, we have and will continue to present
competent and substantial evidence through expert witnesses and documents to support our
position that the proposed Sea Mist Shoppes site plan does not meet all applicable standards and
requirements of the LDRs. The last sentence of Excerpt #13 goes to judicial review of whatever
decision the Board makes, rather than what the Board may do. It probably should be eliminated,
so not to add more confusion to the issue.
98 bo 92 wOU-
July 12, 1994
BOOK 92 FACE 873
15. "Zoning laws are in derogation of the common law and as a general rule are
subject to strict construction in favor of the right of a property owner to the
unrestricted use of his property. Permitted uses must be interpreted broadly,
prohibited uses strictly so that doubts are resolved in a property owner's favor."
(City of South Miami)
This excerpt is a statement of the general law and should come as no surprise to anyone.
No one has ever suggested that the applicant does not have the right to use their property. See
my comment under Excerpt #12.
The relevancy of this excerpt to site plan review standards is questionable, since this
excerpt deals with the overall concept of zoning. If there were any ambiguities in the LDRs
suggesting that the land could not be used, then this excerpt would be useful; however, that is not
the case. There _gre volummes of quotes that can be pulled from cases dealing with property
rights; however, each one comes with a specific set of facts and circumstances that are used as
the basis for local governments decisions and for judicial review. The more reasoned court
decisions hold that every land owner has the right to a reasonable use of his land, not necessarily
the highest and best use. If you are aware of any facts that would suggest the property owner
will be denied a reasonable use of the land if the site plan is required to meet the applicable
LDR requirements, then I would like to know what they are.
This concludes my review of your June 17, 1994 Memorandum to the County
Commissioners.
In accordance with the previously agreed procedures by all parties, I request that you
forward a copy of this response to the County Commissioners simultaneously with your
Memorandum. If for some reason you elect not to forward your memorandum to the County
Commissioners prior to the July 12, 1994 meeting, I would like you to forward this response to
them anyway, so that they will have an opportunity to review it prior to the July 12th meeting.
Attorney Dill introduced Robert Salmon, 1155 Reef Road,
president of Windward, a condominium of 65 homeowners living across
the road from the proposed supermarket.
Mr. Salmon presented a black, 3 -ring binder (Exhibit 9)
containing one page of printed material plus an aerial view of the
site for the proposed project, a plat map of the Moorings, 26 color
photographs showing the entrances into the Moorings, various
residences in the Moorings, single-family homes on Bowline Drive
which will face the loading area for the supermarket, condominium
buildings, marinas, and material describing the Moorings Harbor
Square Development Plan which was approved by the IRC Planning &
Zoning Commission in 1989 but never built. Color photographs in
the back of the folder showed the loading areas and rear access
area of the Publix at Miracle Mile.
Mr. Salmon commented on Section 911.10 of Ordinance 90-16:
M
July 12, 1994
� � r
INDIAN RIVER COUNTY ZONING ORDINANCE
#90-16 OF 9/11/90
COMMERCIAL DISTRICTS #911:10
PURPOSE & INTENT: The commercial districts are
established to implement. the Indian River County
Comprehensive Plan policies for commercial development.
These districts are intended to permit the development
of commercial property, to provide a efficient use of
land and public intrastructure, promote the economic
well being of the county, protect the natural resources
and beauty of the county, and ensure commercial
development compatible with existing and proposed
development.
In order to achieve this purpose, these districts shall
regulate the size, scope, and location of commercial
uses and provide standards to ensure development
compatible with the built and natural environment.
The "CL" district is intended to provide areas for the
development of restricted commercial activities, and
intended to accommodate the convenience retail and
service needs of area residents, while minimizing the
impact on any nearby residential areas.
The word "minimizing" is crucial to the judicial intent
of the County Zoning Ordinance. The American College
Dictionary, 1966 edition clarifies the meaning.
"Minimizing (verb) to reduce to the smallest possible
amount or -degree. To represent at the lowest possible
estimate." A negative loss of.119.3% does not agree with
minimizing the impact on any nearby residential areas.
We hope that County officials, after reviewing all the
evidence, will reject for the third time the developer's
plan for a supermarket in The Moorings.
Mr. Salmon concluded his presentation by urging the Board to
deny the Halvorsen appeal.
Attorney Warren Dill reviewed the following material titled
Authority to Deny Site Plan Approval dated 7/12/94:
100 a00K 94W F'A E 874,
July 12, 1994
L_
ma 92 iv -qn 8 6
July 12, 1994 -
AUTHORITY TO DENY SITE PLAN APPROVAL
Chapter 914. Site Plan Review and Approval Procedure
Section 914.02. Purpose and intent.
The purpose of this section is to establish uniform requirements and procedures for reviewing
applications for site plan approval. It is further the intent of this section to establish procedures and
standards to implement the goals and policies of the Indian River County Comprehensive plan, and to
ensure compliance with the intent, standards, and procedures of all applicable land development
regulations.
— Section 914.06... Procedures for Site Plan Review.
(6) Planning and zoning commission decision. The planning and zoning commission (Board of
County Commissioners) shall consider each site plan ... and shall base its decision on the use,
size and dimension regulations for the respective zoning district, the site review standards
*established herein and all other applicable land development regulations, and comprehensive
plan policies. The planning and zoning commission (Board of County Commissioners) may
impose conditions on-site plan approval which ensure compliance with all applicable land
development regulations and comprehensive plan policies.
Section 914.15. Review standards and requirements.
(1) Purpose and intent. The purpose of this section is to establish standards for reviewing site plans
in order to ensure compliance with applicable county regulations.
(2) Applicability. Site plans shall be reviewed pursuant to all applicable zoning district regulations
and regulations for specific land uses, as applicable.
(7) Use and maintenance of site and zoning standards.
(b) All zoning district criteria must be met, including but not limited to:
(10) Use(s).
(8) Other Critical Site Plan Project Requirements and Review Standards. ...Site plan applications shall
comply with all land development regulations ...
(2) Zoning, chapter 911;
STANDARDS NOT MET
The purpose of all zoning in the county is found in Section 911.01(2) Purpose and intent:
(2) Purpose and intent ... to secure safety from fire, panic and other dangers; ... to conserve
the value of buildings ...
REASONS TO DENY SITE PLAN
The letter from Sheriff Wheeler concerning the proposed development states in part that ... "It is
reasonable to believe from past experience that there will be an increase in vehicle accidents, shoplifting, car
burglaries and other types of crimes associated with retail and commercial businesses."
The appraisal from Armfield-Wagner states in part that ... "it is our conclusion that the values of the
properties located in closest proximity to the proposed shopping center will experience a reduction of value in
the range of approximately 10% to 15%."
July 12, 1994
101
M M
STANDARDS NOT MET
Section 911.10 Commercial districts.
(1) Purpose and intent. These districts are intended to permit the development of commercial
property to ... promote the economic well being of the county, ... and ensure commercial
development compatible with existing and proposed development.
REASONS TO DENY SITE PLAN
This development will cause the devaluing of property and the design of the sight plan is not compatible
with adjacent existing properties.
STANDARDS NOT MET
Section 911.10 General Districts.
(2)(e) CL: Limited commercial district. The CL, limited commercial district, is intended to provide
areas for the development of restricted commercial activities. The CL district is intended to
accommodate the convenience retail and service needs of area residents, while minimizing the
impact of such activities on any nearby residential areas.
REASONS TO DENY SITE PLAN
The site plans flagrantly violate this standard. A 47,000 sq. foot Shopping Center, with a 28,000 sq.
foot Publix Super Market is far greater than what is needed to accumulate the convenience retail and serve the
needs of area residents.
STANDARDS NOT MET
Section 952.12 Median Openings
(9) Median Openings. To assure traffic safety, capacity and control, median openings located within a
traffic -way corridor shall be spaced the maximum distance apart that will allow safe and adequate
traffic circulation...
(b) 'No median openings shall be spaced at a distance less than 660. feet from any signalized
intersection or median opening, except the median openings may be spaced at a lesser
distance based upon a traffic study and impact analysis; but in no case shall median
openings be spaced at less than 330 feet ..."
REASONS TO DENY SITE PLAN
The site plan violates this section because the second (westerly) median opening is less than 330 feet
from the first median opening on Mooring Line Drive. _
STANDARDS NOT MET
Section 954.09 Off-street Loading Regulations
These requirements shall apply to all commercial and industrial uses.
(1) A minimum number of loading spaces or berths shall be provided and maintained as follows:
Building(s) Size in but not
Sq. Ft. Over over No. of Spaces/Berths
25,000 59,999 Industrial and Commercial:2
102 ,
�►
July 12, 1994
roK D2 -mu T
(2) Loading spaces or berths shall have minimum dimensions of fourteen (14) feet by thirty (30) feet, _
plus each space or berth shall have an additional two hundred fifty (250) square feet of loading
or maneuvering area immediately contiguous to the space or berth.
REASONS TO DENY SITE PLAN
There is a question as to the appropriateness of the Publix Supermarket loading space and the retail
loading space next to Publix. Inadequate loading facilities will interfere with the free flow of traffic and cause
undue congestion in the area in violation of Section 952.13 LDRs.
STANDARDS NOT MET
Section 952.12(8) Types of Driveways.
(8) Types of driveways. Each driveway shall be classified as one of the following types and regulated
accordingly:
(3) Major driveways. A major driveway shall provide for a maximum average daily trip volume
of two thousand (2,000) to five thousand (5,000) vehicles. The minimum distance from
the street right-of-way line at any ingress or egress driveway to any interior service drive
or parking space with direct access to such driveway shall be one hundred (100) feet
measured on. a line perpendicular to the street right-of-way...
REASONS TO DENY SITE PLAN
The entrance on Windward Way is at 1997 daily trips. The traffic report by the developer does not
adequately address the number of vehicles coming from the South of the project all the way from the Ft. Pierce
Inlet area. Additional information should be requested by the Staff or voluntarily provided by the Developer to
accurately determine the traffic count coming from the South and entering the Shopping Center from Windward
Way to determine whether there should be a distance of 100 feet before any internal turn off of the Windward
Way entrance road. (This requirement is what triggered the return of the site plan to the P & Z Commission
and caused the need for the second median cut and entrance into the Shopping Center off of Mooring Line
Drive.)
STANDARDS NOT MET
Section 914.06... Procedures for Site Plan Review.
(6) Planning and zoning commission decision. The planning and zoning commission (Board of
County Commissioners) shall consider each site plan ... and shall base its decision on the use,
size and dimension regulations for the respective zoning district, the site review standards
established herein and all other applicable land development regulations, and comprehensive
plan policies.
Comprehensive Plan - Future Land Use Element
IncomQatible Uses and Blighted Areas (page 58)
Incompatible uses include those which are out of character or scale with surrounding areas as well as
those which negatively impact surrounding areas with noise, smoke, glare, traffic, etc. Several uses are by their
nature incompatible with residential areas; these include airports, landfills and many industrial and commercial
operations. These uses have the potential to lower property values and reduce the development potential of
surrounding property. These problems can be reduced through effective land use patterns that provide for
separation and incorporate the use of buffers.
103
July 12, 1994
� ® s
REASONS TO DENY SITE PLAN
The proposed site plan is out of character and scale with the surrounding residential land uses and it will
result in a reduction of property values because of the noise, smell, traffic, intensity of use and lighting
generated by the shopping center. The site is to small and the use is to intense to provide adequate buffering
for the neighboring homes.
IF ANY ONE (1) OF THE REVIEW STANDARDS ABOVE IS NOT
MET, THEN YOU HAVE THE AUTHORITY IN THE LDRs TO DENY
THE SITE PLAN.
Attorney Dill introduced Robert Swarthout, professional city
planner, who was sworn in by County Attorney Vitunac.
Mr. Swarthout requested that the extensive testimony he made
this morning about compatibility be made a part of the record for
this evening.
Mr. Swarthout briefly addressed the same issues Attorney Dill
had reviewed:
1) Definitional statement of the CL district.
2) Purposes and intent statements.
3) Two main driveways are needed based on the traffic
analysis.
4) A supermarket is not a compatible use.
5) Heavy traffic generated by a supermarket.
6) The supermarket will serve a broader area than just the
South Beach area south to the St. Lucie County line.
Mr. Swarthout concluded by emphasizing that there is no
question in his mind that a supermarket in this location is not a
compatible use, no matter how many buffers, no matter how deep the
buffer strips, or how tall the fence.
Attorney Dill next introduced Gene Winne, resident of the
Moorings, who intended to briefly review some of the issues he
addressed in the supermarket vs. grocery store discussion this
morning. He referred to the letter he wrote containing the
petition signed by over 900 people from the South Beach area who
were firmly against a supermarket being built on this site. He
pointed out that the subject property, lot 57, was zoned the
equivalent of Commercial Limited in late 1968, and many of the
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July 12, 1994
BOOK R P, fu 878
I
Boos 9 2 PAIGE 8 19
residents purchased their property based on Moorings Realty's
representation that the site would be developed similarly to the
Village Shops. Mr. Winne pointed out that at least one sitting
Commissioner back in 1968 recalls clearly that the zoning plan
contemplated small, attractive specialty shops to service the
immediate area, not a supermarket. He also questioned the need for
a supermarket in this location. There are 11 existing supermarkets
in Indian River County that are all located on General Commercial
sites in large shopping centers and all are on major highways. No
other supermarkets are on limited commercial parcels. There are
about 37 CL zoned sites in Indian River County, of which the
average size is 15 acres. This one is 5.3 acres. Most of the
other sites are undeveloped, none are intensively developed, most
have no existing abutting residential, and none have high intensity
residential on more than one side. There are many reasons why
this site doesn't meet the standards of compatibility, some of
which are aesthetics, noise, intensified lighting, traffic, odors,
rodents, and garbage locations being less than 200 feet from the
front doors of homes on Bowline Drive.
With regard to the matter of crime, Mr. Winne read aloud a
letter received from Sheriff Gary Wheeler dated 5/12/94:
04jeriff
97FI6E GARY C. WHEELER • INDIAN RIVER COUNTY
MEMBER FLORIDA SHERIFFS ASSOCIATION
MEMBER OF NATIONAL SHERIFFS ASSOCIATION
4055 41st AVENUE VERO BEAOH, FLORIDA 32880-1808 PHONE 407.588.8700
May 12, 1994
Mr. Gene Winne
2096 Winward Way
Vero Beach, FL 32963
Dear Mr. Winne:
In response to your request, I am expressing the concerns of the Sheriffs Office regarding
the proposed retail space at AIA and Mooringline Drive.
105
July 12, 1994
Since January of 1993, I have assigned a deputy on a 24-hour, 7 -day a week basis to the
south beach area. I have found the assignment necessary to protect the residents and
homes of the south beach area The deputy stays busy answering calls for service,
enforcing traffic laws and crime preventative patrols. The proposed retail space may have
an adverse effect and cause increased demands for the deputy's time. It is reasonable to
believe from past experience that there will be an increase in vehicle accidents, shoplifting,
car burglaries and other types of crimes associated with retail and commercial businesses.
It is hely that the additional demand will increase response time by the deputy to calls for
service from area residents.
Sincerely,
Gary C. Wheeler, Sheriff
Mr. Winne felt the only reasonable outcome from this chaos is
the residents' continuing efforts to buy the subject property at a
value that is fair to all of the involved parties.
Attorney Warren Dill announced the conclusion of their
presentation.
Chairman Tippin asked if anyone wished to speak in this
matter.
Tom Buchanan, 1150 Reef Road, opposed a shopping center
containing a supermarket. He noted that when he moved to the
Moorings back in 1977, he understood that a small shopping center
of exclusive shops would be built on this site. He believed that
the residents were grandfathered to what the original developer
told them.
Ann Clark Hickman, 2185 Via Fuentes, expressed concerns about
adequate access for emergency vehicles entering the Moorings. She
urged the Board to consider how very special the Moorings area is
and determine that a Publix is wrong for this area. She wanted the
Moorings kept special.
106
July 12, 1994
ROOK FELE 880
�� �� �
dUUK ��yAC[��/����
Richard Burkhart, resident of the Moorings, objected to having
a supermarket built on the proposed site. Be requested that the
following letter dated 5/28/94 be made part of the record:
Richard H. Burkhart
1936 Mooring Line Drive
Vero Beach, FL' 32953
May 28^ 1994'
Mr Richard N. Bird
Board Of County Commissioners
1840 25th. Street
Vero Beach, FL. 32953
Dear Dick:"
At this time of year you are used to hearing from me in regard to
budget decisions/ however I will leave that for later and talk to you
about the Publix Project proposed for the Moorings.
I have lived' voted, and paid taxes in Vero Beach for the past
thirteen years. I also was elected`to six two year terms on a Planing
and Zoning Commission in Connecticut, in a town I lived in for fifty
four years. Spot -zoning and excessive development, was�urned down by
that board sixteen times during that twelve year period' with fourteen
cases ending up in the courts, all decided in favor of the commission.
I mention the above facts only to lend some credibility to my
experience and insight with regard to the above proposed project.
In 1981 and agai-n in 1989 a site plan approval was given to a "phased
project" in a limited comercial zone, which is now the property
involved in the proposed application involving a 27,000 square foot
PubIix super market. As you will note in attachment #2 the
interpretation of the approved site plan in 1989 for the entire
Moorings community was for a low density, low profile, shoppping
village primarily intended to serve The Moorings' low density
residental community as well as the adjoining limited-commericial
zoned Moorings Harbor Inn. In keeping with the two unit/acre
residental zoning in 1983 I was shown a site plan which was truly
limited -commercial in that the anchor specialty food market was either
5800 or 7800 square feet with several other adjoined small spaces for
retail service business. Clearl'y, they were, as indicated in
attachment #2' part and parcel of the total "grandfathered" approved
site plan of the Moorings to be spaces for retail and service business
primarily serving the fully developed project.
When the limited -commercial site for the Moorings Harbor Inn was
zoned, and approved' specific plans, square foot indications of the
three condominuim buildings, the sales offices adjoining, as well as
the yacht basin and dock master's residence were required for
approval. In my view, it is reasonable to assume that specifics were
required at that time, either (1981-1983-1989) for the Moorings
ShoppinQ Village. In all my experience a development plan for an area
as large as theMoorings, would never be approved on a piece meal
basis. The entire project had to be submitted in detail so the fully
developmed project could be considered for approval. This is the
cornerstone of sound planning, followed by every planning and zoning
~
107
July 12 1994
commission I ever heard of. If sound planning was followed in
approving the Moorings Harbor Inn and adjecent buildings, it. also is
my view, that when shown in 1983, a site plan showing a 6800 +_+r\ 73 0 ►
square foot building representing the largest entity in the village,
that I was looking at the "specialty food market" which has now
illegally grown to 27,000 Flus or minus square feet.
There are many, many emotional and subjective reasons as to why this
project is not desired. There are in my view many, many objective
reasons why this is not good planning in the long run. The whole s=outh
Beach will be adversly affected. Property values will suffer and thus
tax revenue loss will follow. Everyone knows that a supermarket of
this size increases the posibility of employee accidents, motor
vehicle accidents, bike path and pedestrian accidents, all have a
realistic chance of increasing over the present situation, and, will
ta::•:: the present 911 facilities which are nearby. The people of South
Beach made substantial contributions to have those 911 facilities
located nearby. Eighty-five percent of the people in the Moorings do
n+_+t want a 27,000 square foot ++Wit. supermark:e't• in their area.
To support some of the above alligations, it might be of interest to
quote Mr Stan Boling Chief Administrator, Planning and Development.
Commission in a letter of August 14, 1989. Quote "Finally, you might
be interested to know that a 1983 planning staff report indicated that
at "plan -approved" build -out,' the entire Moorings project (including
golf course and open spaces) would be developed at a gross density of
units/acre". Ifi my view this indicates a low denisity approach which
is the way Florida should be developed, and a 27,000 square foot super
market. -in a residental neighborhood does not fit that. point of view. A
copy of the above mentioned letter was sent, to Robert. M. Keating,
Dorothy Hudson,. Moorings Development, and Ruth Jefferson.
I urge you to not allow this project to go forward as projected.
Very truly yours
Richard H. Burkhart
Mr. Burkhart concluded by saying that there are many, many
emotional and subjective reasons why this project is not desired.
There are also many objective reasons why this is not good planning
in the long run. He urged the Board not to allow this project to
go forward as projected.
Lomax Gwathmey, 23 Sea Horse Lane, stated that as the director
of the Civic Association of Vero Beach in Indian River County, he
would like to read aloud the following letter from the Association
to the Board of County Commissioners:
ioa BOOK � P.1rE ��
July 12, 1994
BOOK 92 FnE 883
THE CIVIC ASSOCIATION P.O. Box 3381
7THE of Vero Beach, FL
CIVIC
ASSN. Vero Beach and Indian River County 32964-3381
"Since 1968, preserving, fostering and promoting the beauty, natural resources and
good government of Vero Beach and Indian River County."
July 12, 1994
The Board of County Commissioners
of Indian River County
1840 25th Street
Vero Beach, Florida 32960
Subject: Moorings Site Plan Appeal by Halvorsen Development Co.
Ladies and Gentlemen:
The Board of Directors of the Civic Association of Vero Beach
and Indian River County, in keeping with its purposes and
objectives, "...to preserve, foster, and promote good government,
the natural resources and the beauty of Vero Beach and Indian River
County," strongly recommends disapproval of the subject appeal for
the following reasons:
1. Zoning of subject property to commercial restricted was
granted in December 1968 as a part of the larger rezoning
request by the Moorings Development Company. Those
living here at the time noticed this with raised eye-
brows, but it was emphatically described as "low-key,"
for the purpose of providing a modicum of convenience to
the residents of the Moorings.
2. Proof of this concept. was well expressed by Mr. H. Milton
Link, President of the Moorings Development Company when
testifying before the Board of County Commissioners on
August 19, 1970, to obtain a new waterfront zoning
classification to permit waterfront multi -family
residences. Excerpts from an article in the Press -
Journal dated August 27, 1970 (Enclosure #1) reads as
follows:
"The contemplated shopping facilities include a
gasoline filing station.:to handle both automobile and
boat 'traffic, a grocery store, drug and sundry store,
restaurant, barber shop and beauty shop, and a few office
spaces.
"The restaurant will be the key facility. We want
the best possible, since it must be good enough,, to
attract people from Vero Beach, Ft. Pierde and all areas
of both counties," said Link.
} "Ihe rest of the
since the purpose is
to conveniently buy a
You might call it a
added."
July 12, 1994
stores will be relatively small,
just as its name implies --a place
few necessary items close to home.
neighborhood store concept," Link
109
3. This concept --a small enclave of village -type shops and
small grocery store --remained firm over the years,
although its construction did not take place. The
concept was re -iterated in the planning staff's
recommendations to the Board of Commissioners at its
meeting November 20, 1985 to consider, among other
things, the establishment of the boundaries for the ten
(10) acre commercial node located in the Moorings on A-
1 -A between Mooring Line Drive and Spyglass Lane which
was a part of establishing the Master Land Use Plan
(Enclosure #2).
"Existing Land Use Pattern
The area surrounding the node area is predominantly
residential. There are single-family residences and
condominiums located to the east, north, and west
of the node's general location. Vacant land is
located to the south of the node.
Within the node's proposed boundary, there is a
sales office for The Moorings Development
Corporation location on the corner of Windward Way
and A -1-A on Lot 56. There is a Savings and Loan
institution currently being constructed on the
corner of Windward Way and A -1-A on Lot 57. The
Savings and Loan is the first phase of 'The
Trellises" commercial center being developed by The
Moorings Development Corporation. The proposed site
plan includes a small grocery and drug store,
specialty retail shops, and offices. This
commercial center should adequately serve the
residents in the south beach area."
Note again the concept "small grocery store,"
persisting 17 years after the original zoning was
granted.
4. And now after 25 years a developer comes along and wants
to place a large supermarket on the site, claiming it to
be allowable under the zoning designation.
5. We believe a law suit is not required to determine that
a supermarket and grocery store are not the same. Common
horse sense tells us they definitely are not the same.
if you asked 100 people at random, probably 98 would say
they were not the same.
s6. We believe in property rights. In this case, we believe
the people of the Moorings have more property rights,
particularly those adjacent to the area in. question, than
does a developer who doesn't even own the land. If under
the prevailing circumstances he has some semblance of
"vested interest," it certainly is small compared to the
investment and property rights of the adjacent
residential properties.
110
July 12, 1994
Boob 92 PACE 88
I
Botox 92 PALE 885
7. We believe to rule in favor of an individual, whose
primary motive is profit, and against a great many
individuals who have been lead to believe in the original
concept for the development of this land, would be a
miscarriage of justice.
With all the other attendant degradations to the area --noise,
sight pollution, security, traffic impact from both north and south
on A -1-A already over capacity, drainage and environmental
Problems, we strongly recommend you not approve this site plan.
For a Bo _ of Directors,
Robert M. Tenbus, President
Wayne Varley, 875 Reef Road, explained that he represents the
South Beach Property Association for 22 subdivisions in the South
Beach area which contain approximately 2200 households. He
emphasized that the Association represents more than 1000
registered voters who own properties that represent 18 percent of
the ad valorem taxes collected for Indian River county. Based on
the affirmation of the majority of its members, the Association
opposes the development of any lands that will jeopardize the
quality of life presently enjoyed within the South Beach
boundaries. The present plan for a 27,000 sq. ft. supermarket is
detrimental to that quality of life. Specifically, they object to
the devaluation of real estate property, the overall increase of
traffic on AlA, and the odors, noises, and other problems
associated with the supermarket.
Walter Bush, 1935 Mooringline Drive, wished to read into the
record a letter from Peter B. Benedict, headmaster at St. Edwards
School who had to leave early:
"St. Edwards School is concerned for the safety of our
students, parents, and visitors when they exit and enter our upper
school campus. We believe that any commercial development at the
Moorings would add significantly to the A1A traffic and thus
aggravate what is already a dangerous traffic situation."
George Torrency, resident of Vero Beach, advised that he is a
retired university professor of law and government. He emphasized
that there is no evidence at all to indicate that the owner or the
developer of the subject property will suffer any pecuniary loss if
111
July 12, 1994
� s �
this proposed supermarket is turned down. He felt that the
residents are just as concerned about the taking of property rights
since they are the ones who are losing property value. He also
wished to point out that both the north and south entrances are not
adequate with regard to physical conditions, the number of
automobiles, or the public's safety.
Ron Lisak, local attorney residing at 1526 Smugglers Cove,
felt the proposed development does provide a public convenience and
necessity since the closest shopping area to the South Beach area
is on the mainland across the 17th Street Bridge. He personally
believed that most of the property values on the barrier island and
certainly in the South Beach area will probably increase as a
result of the proposed development. He further believed that all
the residents in this area will benefit greatly from the
availability of these goods and services. Mr. Lisak concluded by
saying that the only thing that is irrelevant here is: A) Has the
property owner complied with the Comprehensive Land Use Plan and
the Land Development Regulations; and B) Is there any rationale
based upon substantial evidence submitted into the record today to
deny site plan approval.
Dr. Arthur Rappaport, 1860 Cutlass Cove Drive, stated his
objections to the medical pathologies that occur when the body's
senses are assaulted by environmental trauma, such as odors,
unsightly garbage disposal, and rodents running around. He urged
the Board to deny the site plan appeal.
Attorney Ralph Evans wished to make a few closing statements
in rebuttal to the arguments presented by Attorney Warren Dill and
others here this evening regarding economic impact.
Chairman Tippin didn't think that is necessary, because he
didn't think that economics has a bearing. It is not a part of
government business to consider economics in making this decision.
Attorney Evans understood that he could rest assured that the
evidence presented relative to the economic impact is not
substantial competent evidence in the Board's decision, and
Chairman Tippin replied, "I think you may."
Attorney Evans asked Keith Pelan, project manager with Kimley-
Horn, to speak to the criticism that has been made that this plan
doesn't have enough loading space.
Mr. Pelan stressed that the plan provides two loading areas,
both of which are greatly in excess of the requirement of the Code.
July 12, 112
1994 BOOK 2 PACE 886
boflK 92 rti, E 8
There is ample loading and maneuvering space behind the Publix
Store and the parking area. It is roughly 11 feet in excess of
what normally would be required for 2 -way traffic. They are
comfortable that the plan works with regard to the LDRs.
John Atz, engineer from Kimley-Horn, returned to the podium to
readdress the issue of Mooringline Drive being a major driveway.
Tom Vincent, vice president of Halvorsen Development, stated
they are here today as the agent of the property owner. Halvorsen
does have an interest here, and when you are talking about property
owners' rights and the rights to develop a piece of property, this
particular property owner's right is not any less important or less
significant than anyone else in this room or any other person that
has an objection to this project. He emphasized that this is not
a zoning hearing to consider the land use or related compatibility
issues. He felt that if consideration is given to all of the
testimony given today by the consultants and professionals, the
Board will find that they have in fact provided substantial,
competent evidence to satisfy each and every one of the
requirements in Section 914.15 of the LDRs.
Ron Ferrin, owner of the subject property, reiterated that
they have come before the Board today for approval of an
economically viable use of the land that they feel will enhance and
maintain the quality of life that has been established here in
Indian River County.
Attorney Ralph Evans closed his presentation by emphasizing
that the proposed site plan meets all requirements of the LDRs. He
asked the Board to vote favorably for site plan approval.
There being no others who wished to be heard, the Chairman
closed the public discussion.
At Chairman TippinIs request, Attorney Vitunac read aloud
Excerpt #4 from his memo of 7/6/94:
"The administrative procedure for site plan approval is
quasi-judicial in nature, and conducted to factually
determine if a proposed site plan submitted by the
property owner conforms to the specific requirements set
out in the administrative regulations governing the
erection of improvements on the property. Those
July 12, 1994 113
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conditions should be set out in clearly stated
regulations. Compliance with those regulations should be
capable of objective determination in an administrative
proceeding. While the burden may be on the property
owner to demonstrate compliance, no legislative
discretion is involved in resolving the issue of
compliance."
Attorney Vitunac suggested to the Board that if they want to
deny the site plan, the reasons for denial should be based on
objectionable determinable requirements, i.e., median cut, driveway
issue, parking -- something that can be quantified and resolved
without resorting to legislative requirements as the City of Delray
Beach has done. There has to be a certainty to site plans,
because the site plan is about the third or fourth level down from
the Comp Plan, at which point a property owner should have some
idea that after compliance with listed requirements he will be able
to develop his property in accordance with the Code. Likewise, the
property owner has the burden of proof to show that he has met all
the LDRs. There has been testimony tonight based on objectively
determinable ideas, and he is not saying you have to approve the
site plan or not. He is saying that if you do not approve it, your
reasons should not be on the zoning type issues or what should be
there, or something that doesn't have a specific quantifiable
objective to it. There was evidence presented on both sides
tonight. He felt the issue was fairly presented to the Board on
whether the developer has met his LDR requirements. If he has, he
is in compliance with the Comp Plan, because the entire Indian
River County Code is in compliance with the Comp Plan, and has been
since 1990.
Commissioner Bird felt that perhaps we should have considered
the compatibility issue more at the time we placed the CL zoning
there. Maybe it is too late to do that, but there have been some
points raised by the opposition that there are areas of the LDRs
and the site plan review procedures that require compatibility.
Commissioner Bird asked Attorney Vitunac to elaborate on the how
much weight should be given to compatibility of the site plan.
Commissioner Bird also asked staff to specifically address the
three points that Mr. MacLean raised in objection to the site
plan.
Attorney Vitunac advised that compatibility as to use already
had been determined by the Board this morning. There are incidents
of a supermarket which cause harm and the County previously adopted
July 12, 1994
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LDRs which supposedly solved those problems. These LDRs are all in
compliance with the Comp Plan. There are some 26 areas that if
complied with are supposed to cover the harm that a supermarket
causes in a CL zone. For instance, there are requirements for
lighting, trees, buffering, separation from the road, median cuts,
driveways, and traffic cuts. It is the applicant's job and his
burden of proof to comply with all of those requirements, and the
Board can ask staff if they have complied in everything. There has
been evidence presented that they haven't complied on at least 3
issues that are objectively determinable.
Commissioner Bird was concerned about the commingling of the
commercial traffic going in and out of this shopping center with
the residential traffic on the two main entrances. He wondered if
we found that situation in any other areas in our county. He asked
if it was staff's recommendation or insistence that these two
entrances be used for this shopping center rather than trying to
get an additional curb cut on AlA or whether there is any option to
that.
County Public Works Director Jim Davis, after being sworn in
by County Attorney Vitunac, advised that the LDRs state that when
a property has more than one road frontage, the access to the
property would be by the road with the lesser functional
classification. In this case, we have AlA which is an arterial
route which fronts to the east of the property, and three local
roads that surround the property to the north, west and south.
When the County approved the Moorings development many years ago,
it pretty much established an access plan onto State Road A1A. It
did so by platting the lots along the local roads that connect to
the arterial route, AlA. He believed that has been consistent with
most of our planned developments, such as Grand Harbor, where you
have mixed land uses of single- and multi -family, residential and
commercial. The lesser roads provide the driveway connections to
the larger connections, and the other roads provide connections to
the arterial. Recognizing that this was a platted lot within the
Moorings development, staff considered access and relied heavily on
DOT's access management policy. It is staff's opinion that the DOT
would encourage access by those roads and would not permit an
access onto A1A. That has been very consistent with their
thinking, particularly since the Legislature approved the
management policy on access. It is staff's feeling that the access
should be Mooringline Drive as it was previously planned when the
Moorings PUD development was platted.
July 12, 1994 115
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Director Davis stated that the median openings along
Mooringline Drive are basically defined in the LDRs. Chapter 952
states, "to assure traffic safety, capacity, and control, median
openings located within a traffic -way corridor shall be spaced the
maximum distance apart that will allow safe and adequate traffic
circulation." The words "traffic -way corridor" have always, since
the development of the Code, been construed to mean those roadways
on the County's Thoroughfare Plan. Those are collector and
arterial roadways that have been classified higher than just a
local road. In the LDRs, a "median" is defined as "the physical
portion of a highway separating the traveled ways for traffic in
opposite directions. " The word highway is further def ined as a
roadway the primary function of which is to serve traffic.. There
are other definitions in the LDRs on other type streets,
particularly local streets which are primarily intended to provide
direct access to property. Staff and the traffic engineering
community have utilized other engineering publications such as the
AASHTO Code Green Book and the Florida DOT Green Book. There are
distinctions between highways and local roads.
Director Davis asked the Board to view some photographs of
Mooringline Drive that he took that morning. The first one shows
the median, with a 25 mph speed limit sign posted on the median.
He noted that many driveways connect onto the roadway, the roadway
itself terminates just east of the Indian River and serves
primarily as access to the abutting lots, the single- and multi-
family lots that access that particular roadway. The point is that
the road has a speed limit of 25 miles an hour. It is not
functioning as a highway; it is functioning as a local street. In
our opinion, it is not included in the County's Thoroughfare Plan
as a collector or an arterial route which would be a highway under
the Code.
Commissioner Eggert appreciated Director Davis' opinion on the
definitions, but she was concerned about two left turns of this
type that close together with traffic going east on top of that,
and considers that a really unsafe situation, especially when one
of those will be used by trucks.
Director Davis noted that most trucks would be coming from
AlA.
Commissioner Eggert also was concerned about the traffic
coming around Bowline Drive, and Director Davis explained that the
second opening meets the separation requirements in the Code that
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July 12, 1994
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BOOK 92 PAGE 891
there must be at least 70 feet between the Bowline Drive median
opening and this median opening. The spacing meets the LDR
requirements.
Commissioner Eggert also was concerned about the road behind
Publix and the noise from trucks that would be backing up and going
forward. She also questioned whether there is enough space for
trucks to maneuver.
Director Davis felt that most of the parking spaces in the
rear of the store will be occupied by employees, not the general
public. In addition, the other 10,700 square feet of retail space
also will have employees who will be demanding to park and use the
facility. His suggestion had been to place a sign west of the
trash compactor that says "EMPLOYEE PARKING" to try to segregate
customer from employee parking. There is still adequate parking to
the north and east to accommodate customers and those people
wanting to use the facility. He believed most shopping centers
encourage their employees to park in particular locations, and it
would be logical to assume that it would be best for employees to
park in the rear.
Commissioner Eggert understood that the rear road is 2 -way,
and Director Davis confirmed that it is a 25 -ft. wide, 2 -way road.
Commissioner Eggert still considered the space too confining,
but Director Davis explained that the applicant has indicated that
it meets the 250 sq. ft. minimum dimension for that particular
portion of the LDRs.
Commissioner Eggert thought it unrealistic, based on her
experience of going up and down AlA and going down to Fort Pierce,
to believe that fewer trips are going to come from the south. She
believed there will be a lot more trips from St. Lucie County who
enter on Windward rather then go up to Mooringline Drive. It is
not clear how much more traffic it will take to get over the 2,000
variable.
Director Davis advised that staff considered the trip
distribution and feels the primary influence area would be to the
north. As you go south of the Moorings, there is quite a bit of
undeveloped frontage down by Round Island Park. We found much of
the development in St. Lucie County is substantially south of the
project site. Our trip distribution patterns showed that about 30
percent would come from the south and 70 percent would come either
from the Moorings development or from the north, and that was a
very conservative figure in trip distribution.
Commissioner Adams asked if the Technical Review Committee had
signed off on the two issues of median openings and trip
July 12, 1994 117
F7
distribution, and Director Davis advised that they signed off on
the median opening issue, but felt the trip distribution issue of
30 percent from the south was a conservative number.
Commissioner Adams noted that Attorney Vitunac has pointed out
that we are dealing specifically with site plan approval this
evening. She understood the position of the residents, but the
fact is that it has been zoned CL and the property owner has a
right to develop within our regulations. If we wanted to change
the regulations about a supermarket not being a grocery store -- if
that was a problem -- we should not have had this CL in there if we
did not want to allow a commercial development in there. She felt
that under the situation we really don't have a choice, and because
of that she intended to move that this site plan be approved with
the conditions outlined by staff.
MOTION WAS MADE by Commissioner Adams, SECONDED by
Commissioner Bird that the Board approve the site
plan subject to the conditions set out in staff's
recommendations.
Under discussion, Commissioner Bird maintained that if we were
looking at zoning this property today, based on all we have heard
today, it would be difficult to vote to place CL zoning on the
property knowing that a supermarket such as Publix or another major
grocery store could be built there. The fact is that the zoning
has been there for some time and has gone through the public
hearing process to remain there. The other problem is the size of
the grocery store and the fact that it might be detrimental in some
respect to the neighborhood. Nevertheless, he believed it has been
demonstrated to be an allowable use. Based on staff's review of
this matter that they have met the requirements of our site plan
ordinance, he felt compelled to stand by our ordinance and vote
its approval.
Commissioner Macht asked Director Keating and Director Davis,
after hearing everything, if they had any reservations that the
LDRs had not been adequately satisfied. They had none.
Commissioner Macht asked Attorney Vitunac, that being the
case, if it changes his charge to the Board that we have no choice.
Attorney Vitunac stated that he felt the Board does have a
choice because there has been competent substantial evidence
presented on both sides of the issue. The burden of proof is 51
percent, so it is up to the Board to decide if they have met that
burden.
09
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July 12, 1994 118
BOOK 92 P E693
Commissioner Macht felt a lawsuit would ensue whichever way it
goes. If we grant the application, the burden of the lawsuit and
cost would be on the opposition. On the other hand, if we deny it
and lose in court, then all the citizens of Indian River County
suffer the cost and resulting damages.
Attorney Vitunac advised that as far as defending a lawsuit,
the County would be in the safest position to grant site plan
approval.
Commissioner Eggert stated she has great respect for staff and
T believed staff knows that, but she has a real problem with access,
safety, and+ noise, especially when it comes to the road behind
Publix. For those reasons she would not support the motion.
THE CHAIRMAN CALLED FOR THE QUESTION. The
motion to grant site plan approval to
Halvorsen Development passed by a vote of 4-1,
Commissioner Eggert dissenting.
119
July 12, 1994
EDITS PRESENTED AT JULY 12, 1994 PUBLIC HEARINGS
Morning Appeal
AA. Agenda backup material (complete packet)
A. Letter written to Att. Warren Dill by Senior Planner
John McCoy dated 5/9/94:
B. Letter received from Attorney Warren Dill dated 4/27/94
B.2 Memo from Attorney Vitunac dated 7/6/94 - Standard of
Review for Site Plan Approval
C.1 Transcript of P & Z Commission Meeting of 6/9/94
C.2 Memo from Alice White dated 7/11/94
C.3 Memo from Assistant County Attorney Terry O'Brien re
Interpretation of Zoning Laws
D. Reasons to Reverse Mr. Keating's Position that Grocery
Stores and Supermarkets are the Same Use
DD. Letter from Progressive Grocer to Tom Vincent of
Halvorsen Development Corp. dated 6/6/94
E. Affidavit of Professor Ronald W. Cotterill
Afternoon Appeal
1.1 Agenda backup material (complete packet)
1.2 Memo from County Attorney Charles Vitunac dated 7/6/94
Standard of Review for Site Plan Approval
1.3 Letter from Attorney Ralph Evans dated 6/29/94
1.4 Green folder containing information on Sea Mist
Shoppes Site Plan
2 Letter from Attorney Steve Henderson dated 7/7/94
3 Presentation of Arguments Against Publix - Jack MacLean
4 Letter dated 7/12/94 submitted by Michael Dudeck
5 Letter dated 7/12/94 submitted by Raj Shanmugan
6 Letter dated 7/12/94 submitted by Scott McGuire
7 Memo from Alice White dated 7/11/94
8 Memo from Attorney Warren Dill dated 7/5/94
9 (black binder) Sec. 911.10 of Ord. 90-16
10 Authority to Deny Site Plan Approval dated 7/12/94
11 Letter from Sheriff Gary Wheeler dated 5/12/94 (page 87
of backup)
12 Letter dated 5/28/94 submitted by Richard Burkhart
13 Letter from Civic Association by Robert Tenbus dated
7/12/94
July 12, 1994 120 92 PALE804
too 4
There being no further business, on Motion duly made, seconded
and carried, the Board adjourned at 9:35 p.m.
ATTEST:
J. arton, Clerk John W. Ti p`' , Chairman
Minutes approved on
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July 12, 1994