Planning and Zoning Commission - Regular Meeting

Good evening, I'd like to call the May 20th Titus will planning is only meeting to order can please all stand for the pledge of allegiance. Can we get a roll call?

Chairman a ton. Vice Chairman Scully here. Secretary Faison here. Member Rice here. Member Grodd here. Member Graham here. Member McDaniel here. Alternate member Seidler here. Alternate member Troutman here.

Thank you. We have quorum tonight. So we're gonna have a motion or discussion on the minutes.

I'll make a motion to approve the minutes as presented.

Thank you. I second. Awesome. Thank you. I will pass it over for the quasi-judicial confirmation procedure. Oh, my apologies. We can vote, roll call vote on the minutes. Thank you.

Secretary Faison?

Yes.

Member Rice?

Yes.

Member Graham?

Yes.

Member Seidler? Yes. Member McDaniel? Yes. Vice Chairman Scully?

Yes.

Member Garrard?

Yes. Thank you. All right. Now we're going to pass it over to the quasi-dual.

Good evening. During the public hearing portion of the meeting, anyone wishing to speak on a quasi-judicial item must complete and sign a speaker card along with the corresponding oath on the card. The cards are located on the table in the front of chambers. City staff will make the initial presentation and then the applicant will present. Then the hearing will be open for public comments and those who wish to make a public comment on the item will speak third. The applicant may make a brief rebuttal if they desire witnesses may be cross examined and all photographs sketches or documents for the hearing must be submitted to the city clerk and will be retained by the city members please disclose any ex parte communications or site visits at this time.

Seeing none. We're going to open it to petitions request from the public present.

My name is Stan Johnson. I'm a professional engineer, and I've come to you with something that is going to come to you on June the 3rd. It's a project with 56 townhomes located at the northeast corner of Singleton and 405, which is South Street. So what I brought to you is something that I'm asking these guys to do. is I'm asking them to look at their stormwater master plan. Stormwater master plan. In fact, I even bought a stormwater master plan and gave to Brad Parrish because the city hasn't been applying it, which is really illegal. So this is an enlargement of part of plate 51B. and it shows drainage for this project goes across South Street and then goes through what has been a canal dug years ago, and then it's supposed to go across 405 here and then across I-95. I think all of you remember that I have repeatedly said is that once it goes under I-95, there's no clearing of the legal positive outfall. So, in other words, it hasn't been inspected, it hasn't been enlarged, it hasn't been maintained, and that is also the eaves and the ditches from the project to where it crosses near Fox Lake Road, intersection of Fox Lake Road and State Road 405. So we've got a problem there. We've got a big problem is that our infrastructure is really not prepared for putting this in. And the city needs to look into it. So I'm asking our city council, not city council, but our city employees to look into this matter. And this again, you see it, this is the stormwater management plan. Okay, so I'm asking for... asking for you to be prepared before June the 3rd to have the staff have a thorough investigation of this rezoning application. Are there any questions? So thank you. Thank you for listening.

Thank you. Any other comments from the public? All right. Seeing no old business, we're going to move into new business.

Thank you, Vice chair. This is item nine a conditional use permit number 6 2025 River Palms number two. This item begins on page nine of 41 of tonight's agenda packet. The applicant robert cod see on behalf of the owner river palms riverfront development to llc is requesting a conditional use permit cup to alter the shoreline of the Indian river lagoon and to construct buildings and parking lot and retention area within 50 feet of a bulk headline. The applicant stated purpose is to develop office and medical buildings. The property is located on the east side of South Washington Avenue or US Highway 1 and south of the Riverside Drive intersection. The Brevard County parcel ID number is 223510AZ6.01. The shoreline setback is 25 feet for all buildings and structures. Buildings and structures will be located within the existing 25 foot shoreline. However, after alteration and fill in the lagoon, the proposed buildings and structures will be located 25 feet from the new shoreline. On page 20 of your agenda packet is a page from the applicants, excuse me, from the application page is the narrative. And so I just wanted to point out the section that has initiated the reason for the conditional use permit. So in the applicant's narrative, it says, pursuant to Section 29 dash 27, any proposed development located within 50 feet of a bulkhead line or altering the shoreline shall be processed as a conditional use in accordance with Chapter 34. The subject property is proposed for development as to Class A office and medical buildings. So it's not necessarily the use that's causing the conditional use permit. It's the proximity to the shoreline bulkhead line and the altering of the shoreline. And that's again, or I should say that that is because it's within the Titusville shoreline overlay. That's where this section comes from. Two corrections I wanted to point out to the Board. The first is on page 15. I'll give you a moment to navigate to that page page 15 of of the agenda packet on the top section 5 is a section that talks about landscape buffers. The staff comment reads the last sentence that the arterial road landscape yard is 30 feet. And that is true. However, that only applies to certain segments of arterial roads. This segment of US 1 where the property fronts on US 1 is not this section of the code is not applicable and a 20 foot landscape yard is what is applicable. And that is what's demonstrated on the concept plan. And so they do meet that standard. And then on page 17 is the other correction, and that's related to the length of the shoreline. On page 17, line 22, The paragraph reads the shoreline is approximately 400 linear feet located between two existing bulkheads and that linear length is incorrect. The length along the shoreline is is almost double that. So I just wanted to make that correction and that excuse me, that length is provided on page 28 of your agenda packet. That's the concept plan. If you navigate to page 28, And that's the big page, so it may take a little while to load. But page 28, if you look towards the water, Of course, now mine is freezing. In gray shading, it says the linear length is actually 843 feet and 8 inches. I just wanted to clarify that that is a mistake in our staff report about the length of shoreline for this property. It is 843 feet plus or minus several inches. Lastly, I just wanted to point out the parking. on page 15 again if you'll go to that page. What page? Page 15. Let me see if I can close this and open it again because I am struggling here. Is anyone else having technical issues? Just want to make sure it's just me. Okay. Page 15. There we go. So on page 15, there's a section on parking. It's Section 8. And the standard reads, the criterion off-street parking and loading areas where required shall not be created or maintained in a manner which adversely impacts or impairs the use and enjoyment of adjacent and nearby properties. And then it continues for existing structures, which is not applicable in this case. Um, and so the staff comment reads the proposed development does not appear to meet the minimum number of parking spaces for office and medical uses. The buildings will have office and medical uses, which have separate parking requirements per section 9.16 of the transportation technical manual. Assuming each building will have a separate use. And there's a calculation there. A minimum of 148 required parking spaces, whereas the applicant is proposing 118 spaces using the demand for only an office. Insufficient parking could have an impact on adjacent or nearby properties. And with that, that summarizes the overview of the application. And I believe the applicant will follow with their presentation unless you have any questions for staff. Thank you.

Thank you. Any questions for staff?

This podium used to be bigger. Good evening chairman members of the planning and zoning commission. My name is cameras anchor. I'm here on behalf of. River palms riverfront development to LLC. That is the name of the owner, the applicant. That's not the name of river pumps to is not the name of this development. I'm not sure how that came to be. What I wanted to make crystal clear is this is not a site plan review. This is a concept review and a lot of the comments from staff as far as we're concerned are site plan issues. But we do have our engineer of record, Dave Menzel, who I will be asking you to treat as an expert to go over the concept plan. If you had the chance to review the traffic report, there's a new concept plan with just one entrance because that's what FDOT requested and also the staff report said to combine the accesses as well. So that's been done and that will be presented to you for you to rely on in making your decision. With me, I have Ian Askew, the applicant's representative. Lisa Tolan, the expert environmental consultant who also provided to you a report which was then rebutted by the city attorney's office today. and Dave Menzel, the engineer of record, who will discuss the concept plan, traffic, the breezeway, and concurrency issues. This is a redevelopment project. It was formerly built with two buildings, which were torn down years and years ago. This is only for office space. We are withdrawing the use for medical buildings. That was when the application went in, but they're not intending to use medical, so you can take that out of the request. uh at its core this is a private property rights issue the applicant owner has fought to get even to this point i don't know if you've seen some of the information back and forth that took us to get to this point they submitted this back in june and it's taken this long a letter from me conversation with the city attorney's office to get this to you to review As I said, there's seven central principles for private property, possession, use and enjoyment, exclusion of others, right to dispose of property, due process, just compensation, and relief from unfair government burdens. I provided a package to you that does through some of the history. First off, there's been... A couple of manifestos from Mr. Seavers submitted to you all and says that the DA, an old DA from 2007, governs this property. That permit has agreed that DA has expired and no longer affects this portion, the seven plus acres of this portion. These office buildings were not the first choice. The applicant came with multifamily, single family and were turned down the office use of the only thing that's still permissible due to an intensity and far review for this property. The owner must be allowed to utilize its property. Also, too, we were not advised of any deficiencies until we received the staff report last Thursday, so that's why you've been getting this information somewhat late in the game because there's nothing in the application that says you need to meet ABCD&E and hours of operation and things that, again, parking, site plan issues, stormwater, site plan issues. So that's why you've received some of this information and some of it you'll be receiving tonight. What I have on the first page of this document, that is a picture from Google Maps of the vacant property. It is the details from the property appraisers website for the property. I have for you the private property rights element, which was mandated by the state of Florida legislature. The property detail page just for the ownership and the deeds that are involved in this. There's a warranty deed from 2004 that's in the chain of title that was transferred to Maurice Codsey. Maurice Codsey is one of the managers of the applicant. They have owned this property. Mr Cod see since at least I mean since 2004 they have worked on trying to develop it. You know there's been a couple of lulls in the economy that's made development very slow that took awhile to get the river palms condo up and going. It's now fully sold out. 2004 turned over to the to the residents. So this property owner has paid taxes for undeveloped land since 2004, most recently $3,673.11. There's been allegations that the city was unaware of this transfer of land to river palms development, which is not at all correct and page seven of the packet. There's an email to the building official with the quick claim deed. And this was in April of 2019. So the city was aware and that was necessary to transfer those 3.19 acres for the condominium that was approved. The building plans were approved. Building permits were issued as bills were done. It's been sealed. People are living then turned over to the condo association. So the city was certainly aware the property was going to be transferred. Page 11, 12, and 13 is the letter I submitted. This is about when I got involved with this project, when the owner was told that they could not move forward the CUP because it violated the DA, the development agreement. So this is the letter. Again, the city had said, you can't develop this seven acres at all. I got involved, went through the code, went through the comp plan. And made this letter that said, you know your treat retroactively treating residential square footage as intensity and intensity as far far as different than dwelling units per acre. And it goes on to explain. The property is not seeking to transfer and has no need of submerged lands to develop these commercial buildings. They need to stabilize the shoreline, but that stabilization and infill which we permitted by the state is not being used for intensity or density. Page 14 of the packet. This is going back to August of 2024. Miss Christy Anderson said that development agreement for river problems development is expired and no longer valid. March 25th, 2025, on page 15 of my packet, the development agreement for River Palms development is expired. Then May 9th of 2025, Christy Anderson advised the owner that there was a conditional use permit needed because this proposed development was within 50 feet of a bulkhead line or altering the shoreline. So, this is awkward. There's no specific standards for this conditional use permit. It's awkward. Does it just apply to the 50 feet? Does it just apply to the altering of shoreline? Do you have access issue if you're just applying to 50 feet of the riverfront of the property? So, there are no specific criteria. We're doing our best to follow along with the code. There is no bulkhead line. This is a rock revetment type shoreline. It's been eroded over the last number of years. It needs to be stabilized. So an application was submitted. We received an incomplete letter on the applicant on June 27th of 2025, and that was page 17. July 1, 2025, this application for CUP was deemed complete. There was nothing mentioned in this letter, page 18, of the development agreement, FAR, traffic study, parking deficiency, environmental concerns, shoreline stabilization, engineering or site plan issues or requirements. The applicant believed this to be complete until we got the staff report last Thursday. On July 1st, Mr Eddie Galindo page 19 of my packet sent an email did giving tentative dates at that time there was a Titusville Environmental Commission scheduled that was not scheduled when we got rescheduled. I don't know what point that should have been scheduled. I know one of the recommendation is this could be sent to TEC, but based upon your code and what TEC is, the staff could have requested their input long ago and they have not. So we would ask to move forward tonight. Page 20, October 2nd of 2025. We then get a letter from Mr. Parrish, page 20 of the packet, saying that the CUP is inconsistent with the governing DA for this property, which again makes no sense because Mr. Parrish has already said the DA is not active. Page 21, the concurrency application was indeed requested as part of the CUP. And then with the staff report, page 22, this is from your packet from staff, it doesn't look at total water capacity, it doesn't look at wastewater, it does look at traffic circulation, seems to be that we're fine, and then says a traffic study is required, which is why you have a traffic study that was provided to you and we have extra copies tonight. The last document in your packet is Section 28.326, the Shoreline Mixed Use Ordinance, which again, this is to show you the purpose. The intent is to encourage and enhance a mix of residential, semi-public uses, tourist use, and commercial uses, et cetera. This height is 50 feet. This provides the uses. There is nothing in here that says you can't have office buildings at three stories if it because they do allow you to have commercial uses and they do allow 50 feet. That shows that the size and height of the building is consistent with SMU and the conditional use requirements because there's no specific standards doesn't say commercial has to be any lower. than 35 feet or 50 feet. The requirement for the CUP of 2927 says this should be reviewed according to Chapter 34. Chapter Section 3471, Conditional Use Permits, are uses that would not be appropriate to a zoning district without compliance to more stringent development standards or conditions. The list of CUPs are in the use table. There is no CUP for altering a shoreline or being within a bulkhead, which we don't have a bulkhead. So again, there are no specific standards. We're somewhat in new territory to my knowledge here. The code repeatedly anticipates altering of the shoreline. Section 30-64, alterations in the shoreline protection buffer and surface water protection permit. So the code does anticipate permits being issued for altering the shoreline. 34-74C, this is the conceptual plan issue in the conditional use. The applicant may submit a conditional use permit with a conceptual plan that Exceeds the minimum application requirements that no conceptual plan required. Such conceptual plan it presented. Shall be deemed to have been relied upon by both such bodies and reaching its decision concerning the request. This conceptual plan submitted will be deemed binding on the applicant, so it's attached to the traffic study. But Mr Menzel has a full copy and also has some renderings for you to show. Which will bind the applicant should this be approved. Regarding the CUP review criteria, the first criteria is it must be consistent with the comp plan. The city staff report says it may conflict. We do not believe it conflicts because this isn't being used for density or intensity. They're using the submerged lines are being used to stabilize the shoreline. The ingress and egress. The staff report says should be fine, recommends that we. Only have one, and that's what's been done. You'll see. The nuisance factors, these are commercial buildings. There are many surrounding commercial uses. You have a Taco Bell across the street that's open until 2 or 3 a.m. in the morning. Concurrency, solid waste, potable water, wastewater. Mr. Menzel will talk about screening or buffering when there's adverse nuisance, sight or noise of less intensive uses. We are agreeing the hours of operation will be from 8 a.m. to 6 p.m. for use of the common areas of the building. Signage and lighting applicant will meet the city code requirements upon site plan review. If we hadn't put in a conceptual plan, how would we show that on a conceptual plan anyway? But that is a site plan issue. Parking will meet code requirements. Mr Menzel will testify that we do meet code requirements for simple office use buildings. Yards and open space. Mr Menzel will testify about the breezeway. It is greater than 25%. As to 10 and 11 compatibility, this is a mixed use zoning district. These buildings are smaller, smaller than the River Palms condominiums to the north, and they are similar to other commercial buildings. General compatibility is met when the zoning code for SMU is met since the CUP has no specific criteria. With that, we'll request approval of the CUP. And in our opinion, there is nothing else that can be built here but office buildings. And with that, I would like Lisa Toland to come up and talk about the shoreline issues. I would also ask that she be considered as an expert and ask that you find that and ask any questions to determine that. Does anyone need copies of that report that was sent to you?

Mr. Chairman, staff, was that report included in the package we received electronically? In other words, I've read this report or I have not read this report? This one was. Yes. Thank you. Thank you.

Good evening. My name is Lisa Toland. I am president of Toland Environmental Consulting. My mailing address is 4092 Sparrowhawk Road, Melbourne, Florida. And I'm here to discuss the environmental issues relating to, as Kim described, the Evening out of the shoreline and the installation of the rock revetment and then the policies that you have before you. I did prepare that report. I wasn't going to go through that report in detail. If you haven't had an opportunity to review that report, please let me know and I can beef up my remarks because I just didn't want to reiterate everything again.

Female Speaker 2.

Sure, right now I'm a president of Tolan Environmental Consulting, a firm that I have headed for 24 years. Prior to that I was the assistant department head for Brevard County Solid Waste. Prior to that I was the department head for Brevard County Natural Resources. I serve as a scientific advisor to the Brevard County Board of County Commissioners for environmentally endangered lands acquisition and management. I have done seagrass surveys throughout my entire career and I don't know if there's anything else to add, but if you'd like to ask any questions of me, I'd be happy to answer.

The Board will need to, by motion, determine whether or not to qualify this witness as an expert.

Thank you. Do we have a motion on qualifying? I'll motion to qualify. Thank you. I second. Thank you. Is that a roll call vote for that as well? All right, roll call vote, please.

So I'm just going to go and do a brief overview of everything.

Just one second. You can do a voice vote on this. All in favor? Aye.

All opposed? Thank you.

I apologize. Now, just one second. Since you asked for a question, I have a question for you. Sure. This is one thorough report. So can you go over some of the negative findings of the estuary, the state that it's in right now, the salinity levels? Can you let us know?

Yeah, I'm going to go through that here. I'm going to kind of go through, I can do it now if you'd like, and talk about like the background conditions a little bit, and they are described in the report. And I think that pretty much kind of reiterates what Kim has said, and I will preference my remarks today. I apparently lost my glasses on the way in, so if you see me going like this, this is because I cannot read my own text. But basically, you know, the existing conditions are that it is a pre-developed upland and a nearly barren shore area. waterway, in the sense that we have no seagrasses, we have no submerged aquatic vegetation in front of the project site at all. When we did the analysis, typically we see something, so we were like, what could explain this situation? Then as we started reviewing the site plans and the development plans for the projects around it, We came to understand that, you know, you have several culverts in the area that are discharging, I guess it's an FDOT pipe, discharging, you know, pollutants from the roadways and stuff at that point in the river. I think there are three fairly large pipes in there. And when you look at the water quality data, there is actually, if you look at page, for those who haven't read the report, let's see. There's a figure on the back of the report that shows these regional photographs of my study area. And when you look at that regional photograph here, this is the study area here with the blue outline of the property. And this red dot here is a monitoring station that's actively monitored 24-7 by the St. Johns River Water Management District. When I wrote my report up, I pulled the data from yesterday. So the data you're seeing in this write-up is yesterday's data. And basically yesterday's data says, you know, It's a stress system. It's a very stress system in that region as a whole. You have very low levels of oxygen. You're just barely above the five level that's recommended for even reasonable. I think you're at 5.13. You're double the nitrogen levels in that area. Your light penetration is significantly reduced. I think you have a value of... 45 point something, if I recall off the top of my head, and the standard would be 30. So what you have is a situation where you have a lot of nutrients, you don't have a lot of light, you have, you know, you're actually have carbon dioxide levels that far, far exceed atmospheric levels, indicating that you're just in this system that's eutrophying. It's getting too much nitrogen. That cycle that we all hear about at these meetings so much is that you get these big nutrient builds up. You get these big explosions of algae blooms. Everything dies. fish die, oxygen gets consumed. And so in this area, you're kind of right on the brink of that as far as how low the oxygen is, how high the nitrates are, how low the light penetration is. So that's existing conditions right now.

Does that answer your question?

Well, so it begins to, right? So you gave us the status of what it is today, but you didn't give us historical, because as far as what I'm concerned, from what I understand, the lagoon has had a nice rebound over the last couple of years. It's doubled in seagrass growth, and your report speaks to the most grim state that it's at right now, but not the growth that it's currently experiencing. To include some of the things that we've done here right off of Parrish Road here, putting those things in the water, To help grow back that sea life. The baffle boxes. Yeah. So the lagoon has been recovering, and it's going to continue to recover as long as we don't continue to put things in it. Would you agree?

Somewhat. I'll give you a qualified yes on that one. Okay. In the sense that if you could get the water clean enough in this area that you could start recruiting something to grow there. From a practical standpoint, you know, I agree that the sorrel program through the Indian River Lagoon, save our Indian River Lagoon program, is doing great things in the lagoon. But, you know, it is a huge, huge problem that, you know, we're slowly, slowly picking our way through. Okay. For this area, you know, it is so heavily degraded that you're not even seeing what we would call calerpa out there, which is an invasive nuisance species that would recruit even in the most polluted waters.

I'm sorry, we're not seeing what out there?

Calerpa. It's a kind of submerged aquatic vegetation. It's a non-calcareous green algae, which just means it doesn't form like a reef system. So out there, you know... If things were even to start to prove today, you might be able to generate conditions for an exotic. If it continued to improve, then you might generate conditions sufficient for natives to out-compete the exotics. But it's a very, very, very long way away. And I guess kind of putting my natural resources back on, one of the things we always struggle with is where? Where can you and where should you? And when you look at all the resources within the system, at some point I always say, there's only so much environmental, money we have, so what's the best environmental value for our buck? And so would you direct development some other place or would you put development here? If I was putting my natural resources hat on, I would sit there and go like, yeah, is it possible that someday in the future we could get this part of the lagoon? It was productive I think back in 2015 maybe. I'd have to look at that data again. But so yeah, so theoretically it's possible that it can return to productivity. It's a long ways away. And then you're sitting there saying, If not here, where? If you can't put something here, where can you put it?

So recently I saw a really nice program, if you will, on Philippines and how they banned people from entering a particular beach for four years. And they were astonished at how quickly that area was able to recover once they stopped going there.

And I totally agree with that. And if you guys are willing to retrofit those pipes, you know, you're stopping the pollutant source. But I don't think it's a correctable condition. And I don't, you know, in the short run, I'm not going to say it's gone for, you know, there's nothing we can ever do because that would be an overstatement. But in the short run, I mean, the reality check is you're not going to. pull those pipes or retrofit all those pipes and change all that pollutant anytime in the near future. So it is a heavily stressed area. It's an impacted area. If your choices are here or there, unless there is even worse, which would be difficult, why not here is the question. Thank you.

Member drug. Thank you, Mr Chairman. I have several questions. First of all, you're the expert on. What you spoke about environmentally, the attorney of record mentioned the improvements historically and the returning of record mentioned the, uh. Shoreline being altered and existing conditions. and earlier staff represented that the length of the property is 800 plus feet as opposed to the staff report of 400. Are you the expert that's going to be able to answer questions regarding the historical buildings that have been there that were spoken to?

No, I think that would be more of the engineer of record. I mean, I did state in my report that I did look at aerial photographs, and I did see buildings on the aerial photographs in the 1990s. So you're not the expert to answer those questions. Once it hits the mean high water, if, you know, in any listed species on the uplands, I can speak to, too.

So you've been to the site? You've been to this site, obviously.

I have. Okay.

And so the statement by the attorney was there was existing revetments and structural improvements to the shoreline, and this is really a restoration of that existing for that whole 800 plus feet of distance. Is that factually correct?

I think what you're seeing here... factually is that you have a bulkhead to the north of the property, you have a bulkhead to the south of the property, you're having a property that's kind of taken a beating between the two, but I don't know. I've seen when I was out there doing the seagrass surveys, I saw remnant rock in the water, like that would be indicative of a pre-existing shoreline, but I could not see enough structure to sit there and say here is where the revetment began and here is where the revetment

So there's no expert here that can substantiate the claim of the attorney that there's already an existing improvement along the 800 plus feet of shoreline. You're stating that you saw some remnants and some portions, some of which may have occurred as remnants of the development areas north and south. Is that more accurate?

I think I'm hearing what Kim said differently. I thought I heard Kim say that the op limb was developed and that the well,

I'm sorry, what matters is what I heard, and I heard that the shoreline had been altered, and this is just a replacement.

No, I think the shoreline had had some rock on it, in sections of it, for sure. I can sit there and say that. It was stabilized at something.

Is it a minority in the area of the 800-plus feet?

I don't know if I could say that off the top of my head.

So no one is here able to testify to that, right? I'm just trying to get confirmation of the state of my attorney.

I can tell you it's not me, right?

Okay, that's fine. So you can't answer those questions accurately.

As far as the pre-existing conditions with a pre-existing, yes. Two questions. No, I'm not.

Previous development, the statement about the replacement, this is the request, and that request more particularly the conditional use to do this shoreline alteration is that it's because it's just replacing what was there. That was the general statement you made, I believe, or do you want to correct yourself? when you come up. Okay, but that's my question.

I'm going to say I'm going to defer to Kim on that one because I only saw indications that there was a revetment in the past. How long it how wide it was or how long it was. I could not testify to today.

It was a whole 800 plus feet along the shoreline. I could not testify to that today. Thank you. So the question begs, who is the expert here tonight? You can present that can answer those two questions. I'm not sure I'm not there already. I'm asking questions.

We'll go to Member Rice in the meantime.

Are you done with your presentation?

I haven't really started, but if you want to just jump into questions, whatever the Commission is comfortable with.

I'll wait until you're done with your presentation and ask my question.

So, you know, what I wanted to talk briefly about was I just wanted to go like on a point by point briefly discussion from staff's comments to here. And again, I apologize for all the squinting. You know, for the first one that I'm going to address would be for the future land use, the flu policy 1.17.3. Submerged lands within the Indian River Lagoon shall only be utilized for water-related development, i.e., marinas, docks, ramps, etc., and only after review and permitting by the appropriate state and federal agencies. So my response to this pretty quickly is I'm gonna handle the easy stuff first, which is everything after the and. We are gonna get the appropriate federal and state permits. We will be required to get a federal 404 permit for this project as part of that 404 review. There is a public interest determination We will have to demonstrate that we will not impact water quality, aquatic resources, seagrasses. The feds go one more than the state and say not even submerged aquatic vegetation, SAV. So there is a pretty rigorous system in place as far as the regulatory review for the impacts of the fill and the revetment. Additionally, at the state level, we will also get a review by the St. Johns River Water Management District. Again, this is for just an evening out of a shoreline. and installation of a revetment. We are not putting, filling in the shoreline and constructing buildings on it, which is a huge intensity use difference. The code already contemplates, as Kim says, the installation of a revetment, it's in your LDRs, the 3064 e-reference and staff report is a reference directly back to your standards for installing and building a revetment in the river. So I think the exception is can you You know, if the shoreline goes like this, can you fill in this part to make your revetment or do you have to? And that's what we're really arguing about right now. As far as, and then the Water Management District also has a series of public interest determinations similar to the federal governments. They will review everything as sovereign submerged lands for which the state has an extra level of interest. They do a very, very detailed review on any activities that would involve the use of their sovereign submerged lands. In addition, the applicant will have to mitigate and provide compensating mitigation for any impacts it creates to the shoreline. They will have to pursue both federal and state mitigation. And for this basin, this is Basin 21, the Northern Indian River Lagoon Basin. One credit of mitigation for this basin currently stands at $750,000. It is running out that bank rapidly. Gossip on the street is the next one coming in will be more closer to the million dollar mark. So for just filling in 0.2 acres along that 800 feet of shoreline. It's long, but it's not wide. You're looking well over $200,000 in mitigation costs to compensate for the filling in to put the revetment on top of it. So there is a mechanism to make sure that there is no net loss of function within that system that is the guiding principles of federal law, it is the guiding principles of state law. As far as the everything before, I think that's where we get kind of in the gray zone and where we take some exceptions to the code. One of the things that when I was reviewing this, and I don't always work in the city of Titusville, When I went in there and I started looking at that water-related development, I started really looking through the charter, the comprehensive plan, the LDRs, and it's not a defined term. Water-dependent is not defined in the city code in the county charter or the LDRs. I think the closest thing you guys got is functionally dependent, but not water-dependent. I said, well, what can we use as something to say what is water-related? Et cetera. And so I went to the actual submerged lands rule, the Florida submerged lands rule 1821, and they do provide a definition for water related activities. If I can read it without my glasses. A use or activity which does not require direct access to the use of the water, but which provides goods or services directly to water users. Within that context, you don't have to have an activity in the water. It doesn't have to be a marina or a boat ramp by the state rule, the state definition. Lacking one of your own, since we're talking about submerged lands, I just went to the submerged lands definition, what a water-related was. I'm sorry. Could you read that one more time, please? Sure. Give me a moment in my glasses. So 1821.003, quote, a use or activity which does not require direct access to or use of the water, comma, but which provides goods or services directly to water users is a water-related activity. So I think you know within your et cetera category in that staff comment and in your future land use policy, I think you have a latitude to decide what is water related and water use. I mean arguably you could go anywhere from a commercial project if I was saying if I have a Guy Harvey apparel store in there, am I not catering to water users? I mean, you could make that argument. And if you had somebody who's giving a massage, it's really what you want to try and extend this concept out to. I know like, anybody who's doing any kind of relaxation or mental health therapist. One of the things that we look at when we're looking at endangered lands and things like that is the under-representation of blue spaces and the value of blue spaces. And one of the value of blue spaces is it creates blue minds, which a blue mind is one that's less stressed, less anxious, There's plenty of documentation. People who sit by the water have lower heart rates, lower respiration rates. How far you want to extend that, et cetera, I think is within your purview to extend that. I just was handed the attorney's report disputing my finding that you don't really have authority under the mean high water. I'll let the lawyers argue that out. My experience says, I don't think you really do. And the example that I like to use when I talk to people about where the boundaries come and go is like, you know, the classic one is I had a dock project in the city of Sebastian. And the person who built the dock thought, being creative, you know, cities can't regulate docks. You know, you can't, as a city, say how big that dock has to be, where it has to end. That's outside your purview. You're preempted in statute for residentials, for sure. So they built the dock, and they built it to be a commercial dock. And then they went and they tried to connect that dock to the land. And the city of Sebastian said, oh, no, no, no, no. You cannot have a commercial dock attached to a residential property. And so... That is really the demarcation line, and that's how I've always looked at it. At the ordinary high water, the city has absolute authority to say what can attach to it. You can have commercial uses attached to your property, but you don't have the authority to regulate what goes on, how things are constructed underneath the ordinary high water line. So that's my pitch on that. I'll just say we're gonna disagree on that aspect of it all. Moving on. The next one I'm going to answer is the alteration may conflict with CME, Coastal Management Element 1.2, protecting marine grass beds, coastal grass beds, marine species. No environmental study submitted. I do apologize about that. I do believe it has been submitted as part of this application package. We did complete an SAV within the parameters required in the methodology established by both the Army Corps of Engineers and FDEP for aquatic resources. Our survey basically encompassed 1.6 acres of the river bottom for a .23-acre impact adjacent to the shoreline. We extended our survey as per the protocol 50 feet beyond the actual impact area. When I was kind of just rough measuring, I think the widest width, and let the engineer speak to that, is about 23, 24 feet. So our survey area is more than double beyond the actual impact area. Unfortunately, we found nothing. We found no SAV or no seagrass. We classified it per the codes that are required to be classified as 5400 open water barren substrate, which is what it was classified in 2023 by the St. Johns River Water Management District. One of the things, and I think if you read the whole context of the code, sorry, I'm skimming through my notes through the squint, and I think you see a lot of reason that you don't have good quality there. You have the pipes, the area right beside the project site is prohibited for shellfish harvesting, which is the only classification given for when water quality parameters exceed all reasonable consumption for human beings. So you can't harvest shellfish from that area because of the pollutant levels. Can it have impacts to You know, manatees, that was the second issue. If you look at the full citation of the policy that staff submitted, it says marine resources such as manatees and seagrasses. Well, and shellfish, sorry, manatees and shellfish. So it's prohibited for shellfish, so we're not going to do any damage to shellfish harvesting. For manatees, manatees typically have three major... Stressors on them, pollution, lack of forage resources, seagrasses, and boat strikes. So you have this background pollution. I don't think we're gonna add anything to that pollution. I know we won't because we'll be required by both the federal and state review to prove that we won't. Since this is an impaired waters, I'll let the engineer speak to that. You probably have to do additional stormwater management on top of it to try and bring it down as the first councilman said. um and we have no boats you know we're not adding any boats to the system so we're not doing anything to manatees you know that beyond existing conditions because we're not adding boats we're not adding additional pollutants and there are no sea grasses or any sav um during lean times you know manatees will eat gray seal area and things like that there's not even that that we found when we were there um So we don't feel like there's any issues under that policy 1.2, marine resources. Staff comment, LDR Section 3064G, the five-part technical demonstration for the rock revetment. Again, I think that goes to the concept that you do allow revetments in and impacts along the near shore of the Indian River Lagoon. The response was for water quality. I think my answer was the rock revetment really is there to stabilize the energy that it's receiving from its northern and southern neighbors who have the bulkheads. We're not proposing to install a bulkhead in line with those. which would be permissible under state and federal rule. We're not adding any kind of water quality. Rock-roofing revetments don't cause pollution. In fact, mostly what it's going to do is stop turbidity from entering that system right there and allow maybe some shallow water quality clarity to improve because every time you keep eroding that shoreline away, you just keep washing it off and creating that turbidity cloud. The revetment will stabilize some of that. Loss of shoreline vegetation. We didn't see any shoreline vegetation. The only shoreline vegetation we noted, and it is on our maps on the package of the seagrass survey, we did find a few clumps of white mangroves recruiting along the shoreline, which we noted, and they will have to be permitted. So on this figure right here, you'll see along the shoreline a couple of dots where it says white mangroves. We will obtain the appropriate permits we need under the Mangrove Preservation Act, but the Mangrove Preservation Act is reviewed and enforced through the St. Johns River permitting process, so we will indirectly comply with the Mangrove Protection Act through the St. Johns permitting process or directly through application for a mangrove altering or trimming permit. So adverse effects on adjacent property owners. I would say that it's the other way around. We are being adversely affected by our adjacent property owners. We will not be adversely affecting them by protecting our own shoreline from their impacts. Waterward extension. Again, we are not proposing to extend to place any sort of development accessory uses or anything other than we are stabilizing and aligning the shoreline to put in a rock revetment. Flow of water navigable hazards. Obviously, revetments run parallel to the shoreline, so they're not going to go perpendicular out and cause any navigation issues. Again, the federal government would review that stringently if they even came close to any kind of navigation hazard and would not allow it. stormwater shoreline vegetation. I'll let the engineer address about an engineered stormwater management system that would be required as part of the rock revetment. That's fairly typical across most jurisdictions. And if the engineer did not design an engineered stormwater swale system or something like that, that would treat the, I don't know what the standard is in Titusville, I'll let him speak to that, but typically it's the first one inch of the 24-hour storm. Whatever that standard would be, he would have to meet that standard and provide an engineered stormwater management, or we would have to provide 10 feet of densely planted native vegetation, which I would present the plans for that to the city for approval. Typically, we would do that as part of the site plan review process and say, here's the zones, here's what we're gonna plant, here's the mixtures of planting material, here are the gallon sizes, here's the nursery quality. All that's written up in a detailed planting and schedule that's submitted as part of the site plan review process. I think I've covered most of the comments that related to environmental resource issues. If there are any other questions, I'd be happy to answer them.

Thank you, Mr Chairman to follow up. I had several questions. I think I can focus on your environmental expertise. I'll try to focus on that in my questions. The 1st question would be since you experienced 24 years in Brevard County, you're familiar with the shorelines. Degradation that has caused some of the pollutant problems and other matters that relate to that. Is that a fair fair statement on my behalf? You testified your experience.

Yeah, so I don't understand the question. Over my 24 years, have I seen a degradation of the river?

Yes.

Yes.

And historically, you probably are familiar historically with shoreline development in this area of Florida, more particularly in Titusville, and that shoreline development has seen major alterations where fill has occurred. In fact, federal government buildings were built on fill where the post office is. And very extensive fill operations, hundreds of yards into the river. You're familiar with those? For the federal lands? Well, just any fill that's occurred as you drove the street of US 1 and looked at the shoreline for your client, looked at the property, you've seen the fill operations that occurred historically along the Indian River Lagoon.

I think any fill, like fill, proper fill, fill to create buildings.

Fill, backfill, fill.

So maybe we need to kind of define terms a little bit. So for me, putting in a seawall and backfilling, because, you know, typically the same thing happens on a seawall. If we were to put a bulkhead line in, we would just attach it to the other two bulkhead lines that are in place. We'd backfill it to that point. And then we'd, you know, so if you're calling that filling of the Andean or Lagoon, that to me, I think that's, minor relatively total impact. I'd have to kind of take a step back and think about that for a minute. But as far as filling in to create structures and filling in to change flow patterns, things like that, I think something along the lines of Cape Canaveral Hospital, you know, things like that. Um, I have not seen much of that within the past 20 years because they really started to crack down on that.

I'm sorry, misunderstood my question. You're familiar with Titusville shoreline, where Phil has been a at least major minority of the shoreline alteration. Historically, much of the shoreline along

In that context, I would say that would be the majority of the shoreline alteration, but not the majority of the actual fill volume.

Right. You're familiar. There are sites in Titus Hill that had a large, if not a majority of the property that has resulted in development, results from backfilling a seawall installation to provide the property based on submerged lands, much like your client's doing. That's observation I think you could say you've seen, right? Back filled sites, hundreds of yards in width into the intercoastal waterway, historically speaking. That's been done. Hundreds of yards.

Again, in 20 years, I have not seen that very many times where you have hundreds of yards.

Well, if you go to the Postal Service building just down the road, you'll see hundreds of yards, if not a quarter of a mile of distance backfilled behind seawalls. Now, would you as an environmental scientist with your 24 years experience, would you agree with me, I'm not an expert, that an undulating and natural shoreline in the lagoon would be better serving the lagoon's Ecological operation itself like a kidney working to clean the water up. Would it work better as a natural shoreline had that been the condition historically? Or would it be better to fill it in with sea walls closing in that back filling it and creating a vertical wall to the water's edge?

Yeah, if we had gone back to statehood and had done it properly from the word go, of course, like leaving everything natural along the shoreline would have been the more ideal conditions. I do have to qualify it to say, you know, that's a little idyllic and it's not the situation we're in currently. So when we're looking at a property that is in between two bulkheads, you know i think the state has recognized the need for stabilization just to you know protect your property rights and your property value i'm not talking about property rights yeah no i'm just saying that conceptually you don't want to do it but at some point when you've already let the you know the horse out of the barn you got to figure out okay now you have all these horses running wild how do we contain them from eating the next guy's stuff you know and that's what's happening so they're eating our shoreline we are trying to just stabilize that portion of it

So another question I would pose is in terms of your testimony regarding the regulatory agencies, you spoke about Army Corps of Engineers, St. John's Water Management District, the permitting opportunity. You gave us an analogous issue and sat at Sebastian Inlet where the regulatory agencies allowed somebody to build a dock and that the local government really didn't have jurisdiction to inspect or review or build the dock. Because it's below the mean high water line. That position. The question I've had is Your client is here for a reason. You're representing your client, the attorney of record is representing the client for a reason. You didn't just go to the state and apply to get a seawall and fill out a revitment and start doing the work like the example in Sebastian in the boat dock. Your application was tendered to be reviewed, recommended by this commission and the city council to either grant or deny or condition this conditional use. You did do that application on behalf of your client.

Yes, and I think the difference. That's an easy answer.

Yes is easy.

Well, I think it has to be called back because I don't think it's really fair just to do the yes, no, because the reality check on that one is you don't.

I don't need the explanation. It's just a simple question. You're making an application representing your client for a conditional use to alter the shoreline, correct? Correct. You didn't just go to St. John's and start permitting and start constructing what they regulate. As you testified, they regulate. Yes.

Correct. It would be foolish to invest hundreds of thousands of dollars in mitigation to be told no at the end.

Mr. Chairman, I have a question for our attorney, if I may. Titusville created, and it may be yourself or it may be the planning staff, Titusville created a conditional use zoning regulation That basically reads to me, as I said, that Titusville has the jurisdiction to consider, provide for, allow or disallow shoreline alteration, including in this case what's called evening out the natural shoreline. They created that rule. That's what we have before us tonight, correct? The city created the conditional use permit, yeah. So would it be fair for me to conclude that without approval of the conditional use, it wouldn't matter if... Army Corps of Engineers said, for example, fine, put in a seawall hundreds of yards into the water body, backfill it, go build your buildings under the local government building code and building permitting procedure. But for the purposes of filling, They couldn't do that. They could apply and you could get a permit, but if they started doing shoreline alteration without an approved conditional use, they would violate a city code. Would that be a conclusion?

That's correct. Applicants have to meet local, state, and federal guidelines.

So the conclusion I would reach is that without this conditional use, it's moot. what the Army Corps of Engineers may or may not allow, or what Saint John's may or may not permit, or their permitting process, or the cost of tea in China as it would be for mitigation, the planning schedule. All that's important for these regulatory agencies that have that jurisdiction. But without the city's approval of this request is applied on behalf of the applicant, they really can't go get any permits without violating the city rule. Is that a fair conclusion?

They can obtain the state and federal permits without the city having issued its permits, but they could not undertake the construction of the project without having all three. Thank you.

Could the applicant apply for the shoreline hardening outside of a CEP?

What do you mean by shoreline hardening?

Reventing.

So the Chapter 30 Division IV governs the shoreline protection permitting process, and they could, but they would still need the CUP as provided in Section 2927. Okay. Member Graham?

Thank you, Mr. Chairman. client purchased this property, he knew that there was a easement there for the DOT stormwater conveyance and I believe some of that might even be the city of Titusville, is that correct?

I'll let the engineer speak to the drainage issues and where the pipes connect.

Well that being the case and you know this is over the rights of some submerged lands and type things he that the applicant you would think would know that purchasing this come with potential liabilities in regards to water quality and shoreline quality because he purchased the property that was already set up that way and then whether it affects his application or not you know you would think that can't just go back after you purchase it say everybody else is tearing this up not my client you know it is he knew it up front whenever he purchased the property you would think I think you'd have to speak to him and there's a representative of the organization here okay number rice a couple questions like you page three of a report

And at the bottom of the page, it says under 33 CFR 324A1, a permit will not be issued unless the district engineer determines the proposed activity is in the public interest. And you've said the public interest saying three or four times in your presentation. This is private. This is a private enterprise. So what is the public interest? The public interest is the... How would they get a permit from this guy if there's no public interest?

Say that last question again.

What is the public interest of serving the public, which means the citizens of Titusville, to be able for them to issue a permit for a private development?

In this case, there's two levels of federal and state review. From the federal perspective, they look at everything within the navigable waterways of the United States to be held in trust for the citizens of the United States of America. So when they do these public interest determinations, the determination is what would be contrary to the public interest. And so they look at establishing standards that would say it is contrary to the public interest to degrade water quality. Therefore, to ensure that we are protecting the public interest, you must demonstrate all these water quality, that your project is not contributing to any water quality violations or degradations, or sometimes in Pampere waters, your project has to actually show that it's improving conditions.

Yeah, but you have to do that anyways with storage. stormwater and anything you discharge to the river, you're going to have to do water quality. I want a very specific answer of what have you all identified as the public interest to be able to do this? It's specifically give me an example.

And I think you're asking more of a a legal term from the public interest determination. From an environmental perspective, the public interest determination is established through what is basically like it's not contrary to the public interest. So they take that position. You're not taking sea grasses, you're not taking listed species. I hear what you're saying is that that's similar to what is already in there. I think that when they add that public interest determination for submerged lands, they tend to be more strict in it because they sit there and say, you have to affirmatively demonstrate that you're not doing anything that's going to harm the public interest.

I don't think you really answered my question. That's okay. Let's assume you're right on where our jurisdiction begins or ends, okay? But I think our city attorney is correct, okay? We wouldn't issue you a permit unless you signed a water sewer service agreement that annexed all property into the city of Titusville. So the minute you filled it, you would have to annex or you wouldn't get a permit, a building permit from us anyways. But once the fill is in. All that land is going to be in our jurisdiction anyway. So either way you look at it, however the lawyers figure it out. you still need a permit from the city of Titusville and those things will still fall into our jurisdiction.

I think it's a timing issue is, you know, when does it become jurisdictional to the city of Titusville? And my position is it becomes jurisdictional for the city of Titusville once you get above the ordinary high water line for this system. And that once you reestablish that order, yeah. Okay. So we moved the ordinary high water line, it's all yours now.

On page six of your report, it clearly states a formal listed species survey for species beyond SAV has not been completely completed at this time. So how do you know what you really do have if you haven't done that analysis yet?

That's for the upland portion, and we would have to do that before site plan approval, yes. And for an existing developed site, I think when I was looking at the aerials, you have some cabbage palms out there, but typically when we're out there, we look at all the shoreline vegetation, whether there's any nesting wading birds in there, particularly... Great blue herons love that area and those cabbage bombs. We didn't see anything like that or osprey nests we look for. So we would have to come back out and reassess the upland portion of the property because we didn't really do a formal assessment of the upland portion of the property just to make sure we didn't have any issues like gopher tortoises out there.

Okay. But if you found something, could it stop the permitting from one of the state agencies if you found something there?

not for gopher tortoises. You still have to get another permit.

I didn't say just gopher tortoises. If you found other species that were there that utilized that shoreline as it is, could it have the potential to stop the permitting through St. John's or the Army Corps?

Again, you have to look at what is reasonably likely, and so when you look at what is reasonably likely, one of the things that I look at when I even was skimming through this is what we call the IPAC site. It's the US Fish and Wildlife Service site, and it states what species are likely to be present in the area, and then we review it for how likely is that to be on this property. To actually stop a project for a listed species, You would have to be within a boundary of a critical habitat for that species. That species would have to be documented on your site or that your site had some unique foraging opportunity for a listed species to come in and utilize. And by removing that foraging opportunity, you effectively altered their life cycle. That's the trigger for listed species. Does your project substantially harm, harass, or take a listed species? The harm component would be if you're taking habitat or forage. This one, there is no critical habitat, I can say for sure, for listed species on this property. Even for the seagrasses, we documented that you're well above the critical habitat zone for Johnson seagrass as well, which is an endangered seagrass.

Member facing back that definition that you gave us, which was the water dependent activity. How important is that to this program?

This project here? I don't think water dependent is relevant at all because the statute or the future land use code that was provided to us said water related. And so not getting a definition, that's where I want the definition within the submerged land rules, which does define what a water related activity is. And it says it doesn't have to occur in the water. You know, it has to occur and it would be in the uplands adjacent to the water. It won't have to support water users in some way.

Which paragraph is that definition of water-related activity? Because in the code it does, paragraph 77, does say water-dependent activity. And it kind of bounces off the modified definition that you gave us today, but it's not quite what it says. And so, if I may, I'll read what the paragraph 77 says for water-dependent activity, not I can't find water-related activities. Okay. And so, what it says here, it says, means an activity which can only be conducted on, in, over, or adjacent to water areas because the activity requires direct access to the water body or sovereign submerged lands for transportation, recreation, energy production or transmission or source of water and where the use of the water or sovereign submerged lands is an integral part of the activity.

What's that code for specifically?

This is your stated 1821-003. I don't see water related activities in 18.21-003. I do see water dependent activities in that very same code.

Can you continue down the definition and see if water related?

That is the definition.

For water related?

No, there is no water related.

Let me go back and check my citation on that because we were like scrambling from Thursday, so we might have a miscitation on that, but I did see it, so I will verify that and send something back to you personally.

All right, thank you. Member Trotman? Yes, I have a question regarding the shoreline. Are you all proposing a hardened or a living shoreline?

We were proposing a rock revetment. Typically, you know, you would have put a living shoreline in when you had, if we had opted to put in a bulkhead line, bulkhead lines have no resource value, so a lot of cities and municipalities and local governments, unincorporated areas, do require what they call a living shoreline, which means that you have to put a revetment in front of the seawall to create habitat for species, because in between the rock itself, you do recruit seagrasses and SAV.

The reason why I bring this up is the DEP prefers that approach. You know, they heavily really want you to go that way.

They prefer that approach if you're using a bulkhead.

If you're using a bulkhead.

And the projects that I've used, you know, you talk about my experience using bulkheads and backfilling, is that you use a bulkhead and backfill, and we'll let the engineer talk to that, when you need more of a foundational stabilization, you know, you're putting weight on it.

Okay. To the board, I would just recommend that if y'all do approve, I'm trying to approve maybe with the living shorehead, but that's on y'all. Thank you.

Honestly, I feel like that would be redundant because the living shoreline, the difference is the revetment, and we're putting the revetment in, which provides the habitat value. So to put something in that's contrary to the resource and more expensive doesn't make sense to me.

Thank you, Mr Chairman. Um, along the environmental questions I had earlier, you made a couple of statements. I think I recall correctly. Um, baffle boxes that have been installed are beneficial to the lagoon's water quality. I think you spoke about baffle box installations.

I think I was trying to follow what the gentleman beside you was discussing.

You're familiar with baffle boxes installation? Limited.

I mean, I don't do a lot of the soil work.

Then you probably wouldn't be familiar that Titus Hills Public Works program has recently installed both baffle boxes down south of this site at a stormwater collection outfall from a pipe. I think it's Not Knox McRae, but the park they developed. I can't remember the road. Coquina. Coquina Road extension into US 1. There's a whole development there that was predicated on baffle box installations, and the baffle boxes are serving the purpose. I believe there's another baffle box installed here at the end of Main Street on the intercoastal again. My understanding of the benefit of a baffle box is it removes pollutants as a principal source point, intercepts them and tries to mitigate them. Without them, you have a direct runoff as you stated in testimony about your knowledge of the pipe that outfalls directly in there and affects the lagoon. Is that fair for me to conclude that baffle boxes are beneficial to the lagoon's quality?

And I'm going to let the engineer handle that one because I feel like that that is going to be a question that's dependent on when it's installed. Can you retrofit something like this size to have a baffle box on it? I don't know.

That's fine. So the next question I have regards if Well, maybe the engineer will speak to that too. It regards the statement you made that we need to do this because it's, I think that I would just summarize it a bit. It's already lost, so let's just give up. That's what I gleaned from your testimony.

Well, I would kind of rephrase it. You know, it's already heavily degraded, the impacts proposed. are not significant relative to like filling in all their ownership.

That's a fair assumption. But then again, you aren't speaking about the environmental issue. I'm asking questions about the benefit of baffle boxes. And you want me to ask the engineer, not yourself, but you want to testify that the water quality is so bad, we really can't improve it. And I was trying to query you on if baffle boxes have been installed, if in the future baffle boxes were installed, would the water quality potentially improve? You're an environmental expert. I'm asking you.

Well, I'm saying that I'm not a stormwater engineer and I don't know the nuances of the velocities and things and treatment levels of baffle boxes, especially as they relate to pipe diameter. But I can say that, you know, are there other methods of improving water quality within the Indian River Lagoon? Yes.

Thank you. Seeing none.

Thank you.

Thank you.

Mr Gerard regarding what you had. Asked her about filling in the shoreline. My statement was that there had been buildings on there and that there had been a shoreline that had eroded and that this was going to stabilize that with the intent of what I was trying to put forward just as an overall statement. And Ian, I and ask you can talk about how the shorelines are rooted since they purchased it in 2004 from the storms and the hurricanes and things like that.

I did understand your introduction. The question still remains.

I will have that question for your expert since now I understand that to me is a fact issue and the representative I and ask you can answer that question.

That'd be great.

Okay. Um, and with that, I do want to come up and talk about the shoreline and the buildings and the pads. I'm sorry. Can you talk about that?

No, no, no. You can talk about that.

My name is Ian Askew. I represent Tricon Development. Robert Kotze. Specifically about the shoreline question that you're asking, all right. Both of the properties were talking about the property River Palms, one and River Palms to to the north. Both of the properties had existing shorelines. We purchased the properties. Both were severely damaged during the hurricanes around 2010. The northern property had a seawall hard seawall. Which completely collapsed and failed very badly. That was the shoreline to the north. That was River Palms one. That shoreline was restored during the River Palms One development into a new natural Coquina shoreline, which exists today. The southern property was a Coquina based shoreline, which was also severely damaged during the same hurricanes. The presence of the seawall to the north create additional negative impact on the property to the south, especially the northern portion of it. If you go there today, the northern side of the property River Palms to was the most impacted and eroded by the Storms and most of the previous revetment has been washed away. And from the center of the property to the southern end, the Coquina is still present.

So your testimony, which was my question correcting the distance linear to 850 80 feet. Your testimony is that revitment existed prior to your purchase historically on the entire length of that 800 feet, linear feet along the intercoastal waterway in the River Lagoon. That's your testimony.

Yes, and to the north, it was actual seawall.

Does your real estate documentation have any evidence to support your statement on the record that there was revitment along the 800 feet of shoreline were under. There has to be a survey that was done during that time that would reflect those conditions. The reason I ask is it doesn't appear in any aerial photograph or historical photographs looking at Google Earth and Google Maps and even Brevard County property appraiser maps that there was revitment along that shoreline. If there was, it was probably only limited to where, and the second question, you used terminology, buildings existed on the property. The building that appears, I think, in some of the documents that just recently were submitted is a photograph of what was a real estate office that I believe may have been a conversion from an old homestead that was there when it was a natural shoreline. But that portion of the property is limited in scale compared to the remainder of the property running south from that old homestead turned into a real estate office. That's a building on the property, but I don't see any evidence of other buildings, just that one, and it's been raised. Do you know where the other buildings were?

The other building, there were buildings to the northern on the northern property. There was a hotel. There was three Howard Johnson hotels and amenities building. But we're not talking about that. I'm not exactly sure what was there on the southern property. I know there's a slab now. And there's actually five. If you go to the property now, there's five entrances cut off US 1 going into the property that at one time had to have been driveways. There's not one. There's five. Well, so something had to have been there that caused people to come off U. S. One into that property all the way from the northern side all the way to the far south or southern side of the property.

I understand, but you don't have testimony about my questions. Answer. What was the second building? I know of one. I agree with there was a building, but you can't testify. To the record for our evaluation about the other building or what building it was or when it was there or how intense you don't have any evidence of that, correct?

I'm not aware of exactly what it was, but I do recall my understanding was there was multiple buildings and there was a existing shoreline.

But again, your presentation is to tell us what you know, but you really don't know the answer to that question. You think, but you don't know.

We know that there was a slab there. You can go there today and based off the conditions today, you could see a slab. You could see driveway entrances going into the property. Is the slab the concrete areas that are there in the photograph?

It's there existing today. Those two, they're in the aerial photograph. You see two concrete areas. Yes. That's where you call a slab for a building. Yes, two buildings. But you don't know that there was a building there. You can't testify to that.

I'm a little young for that, but I do know that I've, from my understanding, there was two buildings there.

But the point is, we're all under testimony, and I'm making clearly sure I get the testimony on the record we evaluate. So the answer is, you don't know if there were buildings there, but you know from the photograph there was a building there that was raised.

Well, like you just said, there's two slabs there.

There's concrete that appears in the photograph.

Yes, and also... The evidence of the driveway cuts from US one show that there was multiple entrances to the property property to separate buildings.

Could I ask the attorney a question? I think this may be one for you, not the expert in the engineer. Driveways that are on the property, the property itself historically has been owned in different ownerships and over time consolidated into one uniform ownership, which started the whole River Palms project. There was one unified ownership. You came in earlier and introduced a disagreement about the separation of ownership. That's for somebody else to be concerned with. But in the case of multiple property ownerships along Federal Highway US 1, There are multiple driveways. Is it potential that when US 1 became a improved US highway and four lane, which I believe was in the 60s, that ownerships would have been provided for driveways through the road widening program through DOT as opposed to not providing a driveway to a property owner. It could have been they had a homestead like the photograph indicates for the real estate office that was there, but having a driveway does not necessarily conclude there was ever any development there. The driveways could have been provided as a a DOT regulated access point because they don't want to cut people off.

No, I concur. He's just giving you factual basis testimony that he knows, he's aware. Sure.

So what we've concluded is we don't know that there were buildings on the property. We don't know how historical or the extent of revitment existed on the property. There's no testimony so far to consider that.

But the issue is the 11 criteria of a CUP. It's not what was there and it's altering the shoreline and whether or not meets the criteria of the CUP. We've gone pretty far afield from that.

Sure, but the point that I'm making is that you've made statements for our consideration that I can't find factually supported.

Well, you just had testimony, which is factually supported.

I think the testimony was qualified. I think I don't know.

He said there are two pads. I know there was one building. I've actually seen surveys of two pads, but again.

But tonight we don't have anything for our consideration of record that stipulates, shows, identifies survey data. This building was here. It was built in 1960 or 59 or 57. You don't have any of that.

Again, we have testimony of what he knows. You can take it for what it's worth.

You answered my question. Thank you very much. Thank you. Thank you.

Thank you. Now I have Dave Menzel, the engineer of record. I'm going to ask him to give you a little bit of his background and ask you to qualify him as an expert.

Uh, my name is Dave Menzel. My company is M. A. I design build. Uh, the company's been in existence in Brevard County since 1985. Um, you know, we designed and build things. Um, I'm a I'm a PE. I'm a special inspector and a general contractor. Um And I'm the engineer of record on this project for the work that we're doing. I'd like to answer a couple of questions that came up when you were talking earlier. Since 1985, we started the company. I've been an engineer since 1975, maybe something like that.

Have you testified in public hearings as an expert previously?

Yes.

I'd ask you to be qualified as an expert first.

Do we have a motion to qualify as an expert? Mr. Faison?

No, I'm not. Make a motion. I move that we accept his testimony as a professional.

Do we have a second? Ms. Silo?

I'll second it.

All in favor? Aye. Any opposed?

All right.

Okay. What I just handed you is the updated concept plan and the renderings that has one access point into the property that Mr. Menzel has designed.

Yeah, there was a change since we actually got in touch with D. O. T. Regarding the entrance and exit. We had a we had a double one, an entrance and an entrance out with like an island. And they didn't want that. They wanted a single entrance where they were attached and in out that was 24 ft wide. So that's the change that was made from the previous plans that you may have seen. And there is also a fire truck exit. On the north side of the property that is necessary because of the travel distance for fire truck. And that was actually the reason we widened the entrance so that we could avoid that. But to answer some of the questions that came up that I can answer is the breezeway came up. The breezeway requirement is 25%. The breezeway, the way this is designed is 67.3%. That's the open area that is between the buildings and on the ends. The concurrency we didn't have time to get a, you know, an approval from the utility department here. But the if you take through the Department of Health, if you take the, uh, equivalent, uh, residential unit numbers for toilets and sinks and bathtubs, the The amount of water usage that's required for these two buildings. Okay, is equivalent to about 12. Residents three bedroom residences. So it's not a large. You know, it doesn't have a large capacity of of sewage waste that goes out of there. It's just an office building. So the office building is three stories. It's the first floor is parking covered parking with an elevator in a small lobby, the second floor and the third floor identical. They have a A common bathroom. So there won't be any more bathrooms added to the building. Buildings all concrete. The floors are just under 7,000 square feet for each floor. So we've got four floors in the two buildings that are 7,000 square feet. The parking is actually when we changed the driveways, we got a few more parking spaces. So the parking is 124 parking spaces and it's enough. It's adequate for to meet the requirement for office space in Titusville. Um, the compensatory storage. We've done that before. There. The bulk of this project is built on the high ground. The compensatory storage is the The area that is primarily to the east of the floodplain line, which is at elevation for And the majority of this property is elevation eight and it drops pretty quickly. So, um, I did preliminary numbers, but I wasn't, uh, you know, certain. I didn't know that we had to do the final numbers, but I can make that work. Okay. I can. I've got that to where that will work. Um, they, uh, I got the parking the spaces, uh, um, I think that was that was the general comments that I wrote down that you wanted my expertise on. So I can answer any questions you have of me other than that. Member Faison.

Good evening. Thank you for coming tonight. OK, thank you. So my first question is one of the biggest issues that I think that's been a bit a big question so far, right, is the shoreline. Um, what does modifying the shoreline provide you versus if you don't modify the shoreline?

Okay. The modification of the shoreline is to give us a setback line that will allow us to build the buildings because the site is very narrow. Gotcha.

And I don't know if you're aware, but Florida statute 18.21 specifically prohibits that kind of action. I don't know if you guys know that or not. So that is strictly prohibited in 18.21. And so if you're asking to do something that is not allowed by Florida statute, my question then is what options do we have?

Leave it where it's at.

Thank you, sir.

MEMBER RICE?

COMPENSATORY STORAGE, TALK ABOUT THAT A LITTLE BIT, BECAUSE YOU HAVE TO DO STORM WATER, PLUS YOU'RE FILLING .238 ACRES OF SUMMERGED LANDS, SO YOU HAVE COMPENSATORY STORAGE, YOU HAVE TO OFFSET and make up that somewhere on the upland portion?

That's correct.

Okay. So how are you going to do that?

You're going to excavate it out and get it down to an elevation of three.

What's the seasonal high water table? Four. Anything below the seasonal high water table, if you take the soils out, you'll get some volume.

If I take it from four to three and I take it on each end, on each end of the property and underneath the parking structures, Okay, I have enough room for the compensatory storage, including the pipes in the retention area is allowed because it's It handles flood. Okay.

So are you doing that under the parking area? You said

Under the parking area on each end, there's a there's an area parking that sticks out on the north end and south end that you drive through the building to get to. Okay, that those areas would be structural. There would be a structural parking lot would be open underneath and it would allow the water to flow under it. Okay. Okay. And it all it's all the whole area that we're talking about is we're talking about like one for water. The the The retention areas, which are retention tanks in the back, that treat the water before it goes into the river, you know, the calculations that we did, actually, that we don't expect any of that water to ever leave the tank. It's going to perk down through. The percolation rates out there are very good, obviously, because it's right by the river.

But the bottom of the—for it to perk correctly— From the seasonal high water table to the bottom of the soil in those tanks has to be a minimum of one foot, and then you have to have a decent percolation rate.

Right, and the mean high water is about zero. It's a little above zero, and we're putting it at three.

It's the seasonal high water table that it'll be predicated on.

Yeah, but the seasonal high water table doesn't change very much.

Have you got a geotech report yet?

Yes, we do.

Has staff seen that?

We use that. What's that?

Has staff seen the geotech report?

We haven't gotten to that kind of detail. That wasn't really required, but we have done the drainage calculations and the drainage calculations work with the box that's on that preliminary plan because we wanted to make sure we met it because we're only allowed to have 30% coverage of a retention area on the backside of the property. Okay.

Member Gerard. Thank you, Mr. Chamber foot. You're the engineer that's going to answer the couple of questions. The environmental representative couldn't correct.

Well, I don't know that I can, but I'll give it a shot. Okay.

We're just trying to get testimony here. So, um When I asked the question about the presentation so far, it alludes to that this is a lost cause of the shorelines in bad shape and the lagoons in bad shape. So we just need to kind of level out the line, and that's what your proposal is to do. So my question was, and the degradation of the lagoon is being mitigated in local governments, more particularly Titusville, with installation of baffle boxes. And there have been several I've mentioned earlier. You probably heard me. The ones I know about are north and south of this site. Um, the outfall from the drainage culvert to the inner coastal in this case, the Indian River Lagoon, um, could be in the future as it has in the past mitigated with installation of baffle boxes. If that occurred, and using the examples where it already has occurred, would baffle boxes, in your engineering expertise, improve the water quality in the area where this water quality is degraded because of the culverts that exist to date?

Okay, I'm not very familiar with what a... of that boxes that you're talking about we we we design the systems but i will tell you the the pipe that directly discharges from the dot is in the phase one property it's not on this property Okay. And we're building a box directly behind the building to do, I think, what you're talking about. What it does is it stores the water. It takes all the impurities out of it, drops it down into the bottom of the box because the box is open and the water percolates down and then heavy storm goes up and there's a small weir that lets the water discharge directly into the which would basically dump over the edge of the wall and into the Coquina.

So it wasn't about your stormwater retention design. It was about the mitigating event of installations that would intercept runoff that currently was stated by the environmentalists is causing a detriment to the shoreline and led to a decrease in vegetation habitat. And the whole point was the summary I made. The presentation is to be It's already lost, so why worry about it? But you don't have any real more information to answer.

No, no. I just know that when we're finished with the project, right now the project just drains into the river. Okay, what we're going to do is treat that water.

The drainage from the project right now is from shoreline that's in a natural vegetative state. Other than some improvements that weren't removed what was testified, but not confirmed to be concrete improvements.

I agree, but there's no leaves and things like that aren't contained. Whereas In the box and in the storage we have any impurities that would Not want to be put into the river will go into the box fully understand.

That's that's the nature of on site mitigation for stormwater management in general. That's why they have rule. But my question was the testimony was we have a degraded system. The vegetation is gone. There's no endangered species there. The water quality is bad and all this is because we have these culverts that run water into the intercoastal waterway and my question was, but where baffle boxes have been installed by public services and those baffle boxes installed for reasons, that reason I understand to be intercepting stormwater that would otherwise runoff and pollute the river or has been recognized as polluted the river. So we restore it by doing that to mitigate it as well as possible. So the whole point was its potential, as it has been experienced in the past, That the city on its own volition could be working to do that. We have no idea, but they certainly have examples where that has been done. And that's to preclude that the city doesn't take in a larger scale, which I think I understood they did with a stormwater treatment area. By the old Dre field where they did a big intercept rather than just a baffle box. So. I'm looking at this from evidence that there are certainly a forward thinking to improve water quality in the Indian River Lagoon to do so through improvements that are intended to do it. Counterpoint made is we should just approve this because it's already degraded and it's just eating them out the shoreline.

well that's my that's what i believe well i can't answer your question because i i don't i don't know that it's ruined and it can't come back that kind of thing that's her job that's what she's like yes okay but i i can tell you that what what we're doing is in the design that we're we're preparing because we're required to is to clean up the water that is running off into the river that's on the property all the water that's on the property will be fed through pipes into a box it'll stage up Which will allow the impurities in it to drop down to the bottom and the clean water to dump over the weir that's at the top. So that is an improvement on what's there. I can't go any further than that. I don't know what a baffle box is, but you could probably stick a back baffle box right next to the weir and dump it in there if that helps even more. Because the way the calculations work, we don't expect any water to leave the tank. It's all going to go down through the sand.

Okay, that part I got, I guess I would ask what you mentioned is that and this goes back to what I spoke about in the regulatory agencies. And I asked the attorney that what's before us that you and the associate. Experts have testified to and represented is you're requesting the city approve a conditional use for shoreline alteration. That's what you're requesting. We've heard that you don't want us to see the plans that you don't have to submit the plans, but you submitted the plans and you've shown these to us. But the real issue is the city's regulation on shoreline alteration, which means, as I asked, and I think got confirmed without this approval, it doesn't matter what you would design it to for. Army Corps of Engineer or what you would design it to the St Johns. You have to get it approved to even begin that design or implementation of the design from the state regulatory agencies. So the reason you're here is to request the shoreline be altered through the installation of revitment, extend the shoreline some number of feet, and you testified just a few minutes ago, that's in order to meet the setback, which you cannot meet unless you improve that shoreline, evening it out as it was stated. Is that correct? Do I understand that to be what you're doing? Yes. Okay. Thank you. That's all I need. Okay.

I just wanted to clarify your point on 1821. I use that the Florida administrative code for reference for the water related activities definition because I was looking for something in statutes or in the codes. to give some kind of guidance on the issue. But 1821 is strictly for sovereign submerged lands, which these are not sovereign. And for the rest of the commission or the council to understand that, by right of statehood or virtue of statehood, Florida owns all sovereign submerged lands below mean high water line. They are held in trust by the governor and the cabinet acting as the internal improvement trust fund for the benefit of all citizens of Florida. So you could not take a private property project and put that in public sovereign lands without some extraordinary public value because it has to show benefit to the citizens of Florida. These lands were released by the state of Florida to the owner. They are not sovereign and they are not subject to 1821.

Okay, so definitions matter, words matter. And so when you say that there is a definition for water related activities and then you cite 1821-003 and then I don't find that definition in your cited reference, then I need to see where you're citing. And I will provide that to you. Because otherwise, what you're saying is that it is correct, that that is not private land, that is still owned by the state of Florida, and so then your whole dissertation that you just said then becomes kind of in question. Would you not agree?

No, I don't agree with that because, you know, the whole point of bringing in the water-related activities definition from 1821 is...

There's no water-related activities in 1821. I'll get you the proper... It is water-regulated. I've just pulled it up. I went to the Florida website and pulled it up. So, I mean, I'm not going to argue. I mean, it's in there. So, you keep saying water-related activities. Which is what your code is saying. There is no definition in the Florida guidelines that state water-related. So, it's not there.

Okay, I will provide the proper citation on that. We were, again, this was something that we got Thursday and we've been working diligently trying to pull everything in and we may have a proper, improper reference there. We will get that proper reference to you for water related activity. The whole point of the reference was to go back to the city code and the language which says, shall not have unless it's water related activities and then it has examples, you know, boats, marinas, and then it has the all catch all ETC. And so what does ETC really mean? And so that's why I was looking for are there other things besides the ones that are in the rule that you guys could consider as a reason to allow the fill in the shoreline. And that's where I started looking for other definitions of water-related activities because you don't have any definition of water-related activity in city code. So I was just trying to give you all some guidelines and say, hey, here's something you guys can consider. From my perspective, ETC means you have, you know, whatever you feel is your best judgment as a water-related activity.

Okay, so are you familiar with Florida 1821?

Yes, I don't know the details of the statute off the top of my head.

No worries. So where in 1821 that you're citing, does it allow to extend the shoreline to be able to grow, to be able to use that growth as a setback? Where in 1821... Does it allow?

Nowhere because 1821 is specifically for sovereign submerged lands and there's a different regulatory, it's called a proprietary authorization. So you have to go through for sovereign submerged lands, you go through a regulatory authorization, which is you have to meet all these technical standards and then there's a proprietary authorization. And so for sovereign submerged lands, they have all these regulatory standards and then it's attached with a proprietary authorization.

here 1821 does not apply because it's not sovereign it's whenever it's an unusual situation in florida 1821 almost always applies so in our packet i've not found anything that says that you guys own the water i've seen it's in my report i've seen lots of regulations the regulations themselves state that the ownership stops where the water begins

Unless it's been actually titled to a private entity and that does happen. It happened here. It happened on Lake Poinsett. The owner there was given actual title to Lake Poinsett and wanted to do a subdivision by putting a wall around that. below the ordinary high water line of Lake Poinsett. There are places throughout Florida where the state has ceded ownership of sovereign lands back to a private individual. Typically, if those aren't ceded back to the city, they're the private individuals.

I agree that there have been times that it has happened. I just don't know if it's been this situation.

I think something that can be provided for either through the attorney or the owner that he has that title. As soon as I saw it, it's such a rare thing. I was like, everybody thinks they have sovereign submerged lands just because the property appraiser's map goes out there. It's like, I own this. I own this. I don't have to apply to this. And typically the property appraiser's map doesn't really deal with the sovereign issue. And so we always are the first one to tell them they don't really own that body. Sorry and very very like I said, it's it's almost never happens where you have the actual state giving away the Private the sovereign land back.

Okay.

Thank you Thank you Maybe a couple questions the do we have a survey recent survey an original survey showing the land loss that you're looking to prevent and

I have not seen one. I just have a current survey, which is this.

So we don't have anything to compare the shoreline to from.

I think I think we can go back through some historical mapping that would be aerial photos that would probably show that the degradation we've done that on other projects.

All right. And then we mentioned the the north condominium properties. I think it's the same owner. and they developed that and they filled in, they put in a bulkhead?

I think that was there. That wasn't the property on the north with the condos where the Howard Johnson was. That actually stuck out further.

The actual north side, that bulkhead was there from pre-existing the ownership by the current property owners. I recall it being there. Yeah, and actually the project involved restoring the seawall.

So you put in a restored that seawall did you fill in there? Yes, we did. Okay. So, and then we talked about how the water now is just billowing up on this project. Shoreline is the creation in the building of that, which was not a natural. occurrence by creating this and building it back out it has now caused and changed the the flow of the water and now because we added and we built in addition it is now causing problems to the same person's property but that was self-induced

It was pre-existing. I don't know if it's self-induced because it's been there for a while and we can probably look at the aerials on that and give you an exact date when that seawall was originally put in.

The seawall was not there as man-made. So the seawall and Mother Nature through the hurricanes and everything else is going to do what she does and she destroys. So by... again building it back up and putting in condominiums we've now created this flow that is beating the shore well and first of all no evidence that there was a bulkhead or 800 square feet of protection there to the middle properties that they were there was evidence on the northern and the southern but not in the 800 feet and now you're asking to create a a barrier to protect it when a barrier we don't have evidence that a barrier was actually there.

Typically, you don't need an evidence of the barrier was there before to afford the protection now. What happened historically was that seawall was in. By rule, you couldn't take a failed seawall and put it back. They would, as the gentleman said, require a living shoreline. It was considered a maintenance activity because only sections of the seawall were damaged following a hurricane, but the structural integrity of the seawall was... good at the time of application for the northern property. So that seawall is pre-existing by a long time. And all the applicant did, and to show intention, like the state does acknowledge that there is some filling allowed to stabilize shorelines, the rule says that you cannot fill and you cannot repair a seawall that has failed. Period. So they did go in by rule you're allowed to go in 18 inches in front of the existing seawall just from a practical constructability standpoint and backfill from there. So the only additional encroachment into the lagoon on the northern side was an additional 18 feet if they took it and I'd have to pull the plans but I think most of the retrofit was done on the existing face of the seawall. Okay and so this project... Was it put in 18 inches in front or was it existing face? Either way, the seawall was existing long before.

But on this project, without the addition of a bulkhead or a seawall in the fill, this project will not fit on the site as is, correct?

That's correct.

So without the approval of something that says that we can't permit, because it's not allowed for building purposes you can't fill in to build a structure on it. That's what we're being asked to do today. Am I understanding this right?

Correct? I would say yes. That's their proposal. I earlier mentioned that the testimony is that, the engineer's testimony was that the fill allows compliance with the required setback. Without the fill, in this case the revetment, extending 26 feet into the intercoastal waterway of the Indian River Lagoon, they can't meet that setback. I think the real rhetorical question is, can a building be built on this property under the conditions that exist in without the revetment proposal, which is the shoreline alteration? The attorneys represented us to begin and gave us all this thing about depriving property rights and focused on that on page one of the first document. The question still begs, can you build a building? We know there was a building. There's been testimony. There's photographs that support that there was an office building on the property before, and it met the setback, or it didn't, but it certainly existed. I would think that a building or buildings could be built on this property without the having to alter the shoreline. And that's what I get out of this. That's what I'm getting the whole request to be.

Thank you. I just wanted to make sure. Thank you.

If you don't mind, I just wanted to clarify. The River Palms one, the seawall was completely removed and a natural shoreline was installed. That natural shoreline is not having any impacting on the neighboring property. Those impacts were made at the same time that the seawall collapsed on the property to the north. That is a full natural Coquina shoreline to the north of this property, just to clarify.

I'm sorry, Mr. Chairman. You've said this before, but I'm trying to come to grips with a natural coquina shoreline, like it's a shelf or a cliff. There's no coquina on that shoreline now. I'm talking about on the property to the north. Yes, I understand, but you allude to this environmental benefit of a natural shoreline, coquina, and I just find it hard to swallow that coquina in this part of Titus Hill is a natural shoreline. I don't think it is.

That's what it's called. That's a part of a natural shoreline.

It's an attempt to create... artificially a natural shoreline, but itself it is an alterated.

It's an alteration of the shoreline, which is what you're natural is because it's a natural material. It's not a manmade material. It's not concrete. It's not rebar. It's not things like that. This is a natural substance, right? So that's why it referred to as a natural shoreline. I understand. I just wanted to clarify that it's having no impact on the neighboring properties whatsoever. It takes all the wave breaks into the rocks. It's completely contained within that.

May I ask you another? Didn't somebody testify that the water was coming in and it was causing this problem?

That's at the same time that the seawall broke next door. It was the most severe erosion on the property. The sea line broke next door. The property next door eroded at the same time during the hurricanes.

But it was presented this evening that the north and south were causing the erosion and the beating of the shoreline. And now you're telling me that the north side is not.

That was during the hurricanes. I said that not presently. The erosion already occurred and it's not getting any better because of what occurred what we constructed to the north side is a benefit to all the other properties it's not causing any turbulence or anything that's affecting the neighboring properties that's the same thing we're proposing here the question i was yeah and i i need to clarify okay i'm sorry the question i also wanted to follow up and i don't know that you're the applicants represented to answer it it sounds like you would be

In all the documents I've seen presented as testimony and evidence for consideration, I don't see, maybe I mislooked at it, didn't read it right, couldn't read it, maybe I didn't have my glasses, I had to take them off because I'm getting a headache. There's nothing that illustrates this claim of erosion on this property. You've testified, everybody has testified about erosion on the property and we're going to put this revitment in to kind of Line up the shoreline meet the setback requirement and we're doing this because there's been this erosion, but I don't see any supporting evidence that the shoreline if it's eroded how much erosion over how long a period of time. However, you did just state that there was erosion during a storm event of a hurricane's magnitude or two hurricanes, but Nothing says you lost five feet of property or three trees fell in the river or whatever happens with erosion. There's no evidence supporting your claim that there's been erosion here that's before us tonight. Is that correct?

If you go to the property, you can see it for yourself. And like he said earlier, there could be historic surveys that could be compared to the current survey that would reflect that.

Well, that's the evidence would be helpful if you supported your claim. But right now there's nothing before us didn't know to bring that tonight.

But we could probably find something like that. And like I said, if you go to the property, it's very obvious what's occurred. There's undermining. There's things that are way past the land that you could tell have been eroded.

Actually, if I looked at the aerial photographs in history, I don't support what you're claiming. I don't see drastic erosion over at least the past 40 years from aerial photographs. It looks to be what it has been, a skinny piece of land.

I'm looking at this survey here and these parking lots that look like to be parking lots coming off the street. don't meet your setback, so something had to cause that to erode to reduce the setback from the mean height.

I don't know that the code required the setback in the time in which that was built, but you don't know what was built there, and you don't know when that was built, but you're presenting evidence that you just claimed may answer the question. Where is the documentation we're supposed to consider that supports your claim right now?

There's no need in your code for evidence to show how much has eroded. All we have to meet is the criteria of the CUP that says we should be allowed to alter the shoreline, and we're not creating problems by doing so. The question is up to you if we meet the 11 criterias of the CUP code, not if we're replacing. We're just explaining why we're doing it, that there has been erosion, but there is no need in your code for evidence to show we lost 5 feet, 10 feet, 15 feet, or 25 feet.

So, again, rhetorically, then that means we shouldn't really consider the testimony about erosion. It's a moot point.

It's just explaining the situation.

I'm good with that.

Okay.

Member Faison? You know, back on this whole erosion thing, so what is Florida law that covers erosion, and when erosion happens, that it changes your property boundaries? Is there a law that covers that?

Again, this is a conditional use permit.

I understand.

This is a, do we meet the 11 criterias to get the conditional use permit for altering the shoreline so the property is usable? Okay.

So then it's altering the shoreline to increase the setback. Is that authorized in Florida law?

I'm sure it is. I'm sure if you can get the permits from the state of Florida, from FDEP, from St. John's, from Army Corps, it is. Your code, you have to decide if it meets your code. That's up to the attorneys. You have to decide if we meet your 11 criteria. And your staff report doesn't say we don't. It says it may conflict. It says submerged lands can't be used for intensity or density. We're not using it for intensity or density. We're using it for setbacks.

Okay. So what I'm doing, right, is I've used whatever references your professionals, who we've deemed to be professionals, I've used their references to validate your claims. That's all I've been doing, okay? Mm-hmm. in accordance with 1821, it specifically addresses the use of using shore, excuse me, revetments to increase the shorelines to meet setbacks. 1821 says that that cannot be done.

But it's Florida Administrative Code for sovereign submerged lands. We have a survey that shows we own the submerged lands.

Great. So back to sovereign submerged lands. So then how do we define or measure or identify Sovereign submerged lands, then that goes back to the statutory statutory 19 year rule, which says that when erosion has occurred, which you guys have been talking about erosion when erosion has occurred, it moves your boundaries back to the land. And then that land that is now that new after erosion returns back to the state. So I'm only using your arguments to either validate or. challenge, if you will, what you're saying. And what you're saying, I don't find any grounds that support your position.

Okay. Well, the eroded land still belongs to the owner because it's part of their land. So it doesn't... It does not.

According to statute, again, going back to Florida State Statute 177.28, it defines what happens when eroded land happens, that that land then returns back to the state.

I'm reading it here. I know, but that's for sovereign submerged lands. We're not adjacent to sovereign submerged lands. The eroded land is not adjacent to sovereign submerged lands. The sovereign submerged land is beyond the survey lands. That's a whole other series of case law dealing with what happens with lands and accretions and erosions and things like that. That's not what we're dealing with here. We're dealing with land that we own that has been eroded, my client has owned. So Florida Administrative Code, she was trying to use that to give you a definition, which I agree, it's not in Florida Administrative Code, at least not the current one. But there is no definition of Florida, of water-dependent uses in your code.

All right, so help me. What is the Florida Code that governs... Sovereign lands. What is it?

I don't know, but we're not dealing with sovereign lands here. So it's irrelevant. So what are we dealing with? We're dealing with property owned by my client. He wants to fill in so he can build on the land.

Okay. So based on what regulation can I look up to support your claim?

You have the entire evidence of what we have to do through permitting to fill in land. You have the evidence that was done for the condominiums.

Okay, so then if you don't have it, I have to refer back to Florida 18, which then says that we cannot use revetment to increase your setbacks. So I'm asking you to support your claim, and you're saying, well, we don't have it. So I was, okay, cool, no problem. I will use what I do have available, which is Florida Code 1821.

Which doesn't apply because it's sovereign submersion, and you've had an expert qualify as an expert telling you what would be done to fill in this land, which was just under the condominium to the north.

Okay, so let's go to the condominium to the north because the other claim here is that the DA does not apply. Correct. Earlier you said that the...

The development agreement does not apply.

Does not apply because it expired.

Correct.

Can you explain to me how the development agreement expired?

By its terms. It had a term limit.

Okay, term limit of what?

It had a date. It had a date and it says it terminates on this date and it terminated. Okay. And you have your planning expert, your planning manager said it's expired.

Okay. So you had said earlier that because according to the development agreement that... There was an email sent out that stated that the land had changed, that you did a quick claim deed, right? And the date of that email was in March. 2019. 2019. All right. So when did the quick claim deed go before that? And then, excuse me, when was the quick claim deed done initially? And did it happen during the time of the agreement? Because I don't know this date here. And was there prior knowledge before March that you were going to do that? Because that was according to the agreement.

Right again, the D. A. Is not at issue here and not to mention that the city approved the plans for 3.19 acres of a condominium. They knew under condominium law that would have to be deeded to the condominium for common elements. They knew that they approved it. They had to know.

So the DA is at, it's an issue because you mentioned it when you first spoke. You mentioned the DA. So again, I'm only talking about what you brought up. Okay. So my question is, what was the expiration date of the DA? First question I have.

I don't have it with me. I have to look it up. Okay.

So we don't know when the DA expired.

I'm sure Mr. Severs will know.

And then did that DA, excuse me, did the transfer, did the quick claim deed transfer happen prior to the expiration of the DA? Likely. Okay. So then was there a conversation made prior to the expiration of the DA before the quit claim deed went out? Then the email goes out saying that we've done that because that would be in accordance with the development agreement that was made. So were the terms of the development agreement kept in good faith? That's my question.

There's been no lawsuit about the DA. It's irrelevant. It's expired. Any issue about the DA now is statute of limitations has run. No one has challenged it.

Well, I'm asking the question today because it's part of your whole thing here is that the DA is a part of this whole thing. So if you didn't bring it up, I wouldn't even know it existed. And so thereby goes, if you didn't bring it up, I didn't know whether or not somebody upheld the end of the bargain part of that DA. Because it looks like kind of like an end around, if I may say so, right? That this happened after the, excuse me, There was a date of expiration. You did the Quick Claim D before the expiration of the DA, which you can't tell me when it is, when it was. I don't know when. And then later on, months later, then you do this application, and then now here we are. Because with the DA being active and being enforced, this whole development can't go on anyway because you've already agreed to not develop this land. So if in the DA there was an agreement to not develop this land without prior city approval, and then you do it anyway, now we're looking... So I'm just trying to get this whole puzzle piece put together. The land hasn't been developed. And I need your help. No, no. On this parcel, it's not.

Correct.

This parcel was originally part of the other parcel.

Correct.

Okay. And a part of that DA that you guys would not develop this southern parcel without prior, prior, prior city approval...

That's what we're here for.

Okay.

So the DA is germane to this conversation. No, it's not. I brought it up because it was in the record of the city and it had been brought up by Mr. Seavers and his two manifestos to the city. I do not believe it's germane. I just wanted to give you the history of this property.

Okay. Member Gerard. Thank you, Mr. Chairman. You made a statement that puzzles me just a few minutes ago and I'll have a question. I think you're going to be the Representative answering these, I hope I got the right one. You made a comment about the River Palms condominium and the ownership being separated and early on you said because the building official accepted a description that obtained a building permit. I did think I heard you say that, didn't I? That's correct. You were just speaking about a relationship between this agreement that you indicate your opinion is it's null and void because the planning manager, the community development director, Mr. Parrish, determined that it was void. but the agreement when it was in effect and you said, I think the word you used was the city should have known that this got separated because they issued a building permit. The agreement wasn't with the building official, it was with the city of Titusville and your party to it when it was in effect would be incumbent on you to alert the city that you were creating that condominium tip fall and that it was time to separate the ownership which would have been compliant with that requirement as opposed to i suppose the building official saw the building permit so that meant the city knew it happened wouldn't you think that agreement with the city as important as that one was would be incumbent on you representing your client to advise the city you've reached maturation the condo we're going to turn ownership over to it as opposed to i got a building permit it was a legal description that separated so

It's my opinion the city knew exactly what was being done. They were on notice from the community development director, Peggy Busaca, to the city manager. Everyone knew was on notice.

There's no document where you would have... It's all in the records.

All in the city records. They were on notice.

You're stating that there's a record where I'm asking, did you directly advise the city of the separation of property or do you testify, you representing your client, that this was a de facto acceptance that therefore the city accepted? No one actually did the real step, which is to say, city of Titusville, we are separating the ownership. I think it's constructive notice. It's a constructive notice. I understand. Thank you for answering my question. Member Graham.

Thank you Mr. Chairman. We've talked about a lot of the items tonight and this DA is a big one. I hope you can understand we didn't get all the information for this until earlier today. It's a lot of information to digest. I think that's been a common denominator here, what I think everybody feels. And with that, you guys are asking for us to vote on something that we haven't yet absorbed both sides, what's right and what's wrong. And so I think you see where a lot of questions have come from. It's because we're trying to figure it out as we go along as well. And I hope you can see the patient. We're not... saying it's a bad project or any of that, but it is a lot to absorb, and especially when we're talking maybe had it three hours, really, to deal with it, where a young lady over there says, well, it's a short time. We had it since last Thursday. We haven't had it a day yet. So I hope you can see a little bit of confusion on our part, too.

I didn't realize that, sir. I assumed you got it on Thursday as well. And if you all need more time, we're happy to postpone this for a month, if that would be palatable to you, if that's what you would like, if you'd like to absorb it, if you'd like to take testimony and then continue it, that would be understandable as well.

Thank you. I'll leave the rest up to the committee to digest itself.

Thank you.

Thank you.

I'm going to ask for a five minute recess, if that's OK. First card.

Angelo Langling.

Good evening. Angelo Lagana. I was going to speak. Mike, yes, sorry. I sent out an email, so I'm going to kind of like, I know everyone got the email, so I won't even reread the email. I'm assuming to cut time down on that, but I think a lot of stuff you already went over. You were talking about baffle boxes. I know what they are. I mean, I don't understand maybe different type of engineer, but The engineer should know the baffle box and how good it is and what it does. But we have in our condo from 1805, we have dry retention ponds, which I'm sure you know about. And we'll even go into that. They do work. They're limited in use. You know that. There's a weir that dumps a lot of the water out into the water on high level, which you all know. So pretty much the same thing is being permitted or they're trying to permit as part of the building over there. So they do work, but I'm not a real big fan of those because they do dump some water into, and it's always the overflow and the weir. There's no filter there. There's nothing. So, you know, nitrates can go in there and so forth. So that's one aspect. The traffic safety is another aspect. It's right next to a high school. I mean, it will increase the volume. I'm sure they gave you a traffic study, but I heard they gave it to you tonight, which I wasn't able to study that, but I'm sure you're able to study it. So it's going to increase the traffic flow. We already had accidents out there. And you talked about the, I think the part where it was, I think the engineer said 124 parking spots, they need 100, and I think it was 148, but they were talking about they really don't need that. That went back and forth. I don't know where it stands on that. Um, but that's another aspect of it after building. Why can't they just build a smaller building is my why they have to add such a big building. For the cove the filling we all know you're filling in you're affecting the habitat over there I've seen the habitat might be birds and so forth. We have mantis over there. Not that particular area, but out next to our Retention area we have mantis that stay on the freshwater pipes that come in from the storm water So that's it I just want to Tidesville is historic And it has beautiful shorelines, and hopefully the committee can vote to save that because I think some buildings are allowed, but some buildings should just be put elsewhere. And that's pretty much all I have to say. Thank you.

Case Acknowledged.

Casey Nange, Maryland Avenue. The Indian River Lagoon is one of 28 estuaries designated by Congress as an estuary of national significance and as such is protected under the U.S. Environmental Protection Agency. The lagoon is not a lost cause as it generates an annual economic impact of $28.3 billion annually across the seven-county region. Indeed, the lagoon is hugely significant to our community. To prove my point, the city has built 14 baffle boxes at $500,000 apiece to reduce the pollutants going into the Indian River Lagoon. And they have to be vacuumed out periodically at great expense, not like this gentleman's. This CUP would be inconsistent with the city's comprehensive plan which seeks to preserve, restore, and enhance coastal resources to assure their future ecological benefit while maintaining and upgrading the quality of the Indian River Lagoon. The city shoreline includes natural resources which shall be preserved from encroachment and development. The COMP plan seeks to protect rivers, estuaries, and the coastline from environmentally destructive alterations. The Indian River Lagoon Council indicates, quote, restoring health to the Indian River Lagoon requires every level of government, every agency, every county, every city, and every citizen. No single effort can sustain it without shared responsibility and commitment. That's what I'm asking of you tonight. Recommend denial of the CUP as the lagoon should be protected from environmentally destructive alterations as per the comprehensive plan. Thank you very much.

Thomas Perez.

Good evening. Thomas Perez, Washington Avenue. The alteration of shoreline with Phil in order to create new land to accommodate development is inconsistent with current policy. Current policy states, quote, submerged lands within the Indian River Lagoon shall only be utilized for water-related development, marinas, docks, boat ramps, et cetera. And only after a review and permitting by the appropriate state and federal regulatory agencies, submerged lands within the Indian River Lagoon should not be utilized for any land use, density, or intensity. Staff, well, the request is inconsistent with the comprehensive plan and land development. For development purposes, this should never be considered. It's just not in our plan. It's not allowed. We need to divorce ourselves from past practices of filling in portions of the lagoon. The lagoon belongs to everyone. It should not be encroached for the individual interests. No seagrass at this site is a criterion. It's also something that shouldn't be considered. Lack of seagrass is not the expected normal for the lagoon, and it's not appropriate to make it a criterion for development. Any encroachment on the river is not in the public interest. Thank you.

Dwight Seavers.

Before I get started, I want to make sure that certain documents are in the record in this proceeding. First of all, all of you, I think, received my letter of May 19th, 2026, as well as a request for production. I want to ensure that those are a part of the record. And as I took the oath, I would attest those are true and correct based upon my knowledge and review of records as such. In addition, in the documents you have before you, I provided a revised sketch exhibit one. I made two corrections with it. There was a mistake I found on the property appraiser's records. They made a mistake on one of the dimensions. They said it was 379 feet on what I have referred to in the drawing as the Manzo property. It's actually 397 according to the survey. In addition, I included in there the density that's on the Howard Johnson sites. There's 3.17 acres or 3.19. I've heard two different numbers. Which is thirty one point five units per acre on the higher Johnson site, so that's in the record I included a unity of title deed which is marked as exhibit To be in the document the property owner deliberately wanted this eleven point five two acres and one track and So he recorded a unity of title, and he did that in 2005. I've included the PNC minutes of July 22nd, which is Exhibit 5E. I've included in Exhibit 4D Peggy Boussaka's letter, and I made a public records request. There was one response, and there was another response by Peggy Boussaka to the email. So I want to make sure you have that information as to what she said, what the engineer said on behalf of the developer, and what her response was. You need to see that. In addition, I included a separate exhibit, paragraph 11, exhibit five, an excerpt out of the development agreement, which goes to the very provision that says if you want to develop this in phases, thou shall. development and keep it in compliance with the land development regulations. And you have to have the city's approval. It doesn't delegate to the building official or anybody else the authority to do that. Follow the agreement. In addition, I included the permit that was issued on March 26, 2019. As requested by River Landings Hotel, I included a couple of filings of River. I would request more time. I haven't really got to my presentation because I'm going to make sure the documents are in the record.

I'd like to grant an extra three minutes if that's appropriate or five minutes if it's necessary.

All right. Can you get a voice vote on that?

The 2019 filings of River Landing showing Maurice Kotsky and Robert Kotsky. There's a conversation about the transfer of property to River Palms Riverfront Development II. They're the same individuals, so there's no BFP for value without notice or anything. We're all dealing with the Kotskys, is who we're dealing with. Turning to what I'd like to say simply is, my suggestion initially was to table this item because I do not feel as though it's appropriate for this applicant to submit this application. There was never a request by them. I find it interesting that council would suggest that the building official somehow consented or approved a transfer when he has no authority to do that. In addition, She said it occurred in April 2019. It didn't occur in April 2019. I've given you the documents that occurred in October. I think it's October 2nd or 6th, 2019. You have the documents in front of you as to when that occurred. So clearly there was no request. Yes, the agreement expired on April 6th, 2019, according to its terms. And as such, just as a little background so you can understand what occurred here. As you know, I was the city attorney at that time. I was the city attorney for 40 years, very familiar with certain things. I was heavily involved in the 2000 bond issue. for $10 million to buy riverfront property to save riverfront property and preserve the view of riverfront property. In addition, I started purchasing property when the first purchase properties we were involved in was with Mr. Gonski. Rio del Sol, which is across from Ellen Cito, we paid several million dollars to acquire that. It involves submerged lands as well. In addition, in 2005, six and seven, there was a strong desire by the council and the public to continue to protect and preserve riverfront property. And that's one of the things through the development agreement, as you may see and observe, is that one of the exhibits I have for you, and I'd like to briefly touch upon it, is this document, which is 1A. They wanted the entire property in one ownership. They developed this with 100 units. On this entire property, we agreed ultimately through negotiation, 125 units. If they were just developing the uplands of the entire property, they could only have 76 units. They put 100 units here.

Mr. Chairman, I keep hearing the beep, so I guess to consider the information being provided, we extend Mr. Seavers another five minutes. Okay. Is there a second?

All right. All in favor?

Aye.

With regard to this property as such, as I've said, the Howard Johnson they built on is 31.5 units per acre. That is in violation of the comprehensive plan if that's solely what's there. They've created a new project which is a non-conforming project because they didn't include some of the other land as a part of it. They agreed that the density overall was 10 units per acre over the entire tract. Because you divide 11.52 by 125, that's what you get. But if you're talking about, and that would encompass at least this tract should have been a part of that tract, clearly. That's what they agreed to, honor your agreements as such. I'll answer the question on the Manzo track. This was a putt putt golf course. They poured some slabs, put some snack bar buildings on it, and that's what it was. Many years ago, I visited it, so I'm very familiar. And obviously, the DeForest Realty, it was a building almost on US 1 where DeForest Realty was. That was what in fact was there. On this diagram, I'm just reflecting to you at the 10 units per acre for 100 units, it takes up all of that. At 15 units per acre by the code, it takes up at least that. Why are we permitting and allowing someone to create a nonconforming use. By transferring a deed, they agreed to this as a part of their agreement. The city will agree to allow the project to develop in phases if the developer elects to place the phases in separate ownership The transfer and ownership is subject to city's review and approval that the separate ownership will provide that this development of this project is in compliance with the development agreement and the land development regulations. There is no way this complies with the land development regulation. It doesn't comply with the breezeway requirement of 25%. I feel somewhat sorry for the residents there if their insurance company learned that this is a non-conforming project. What are the consequences for them? The developer should be required to keep his word and honor his word rather than trying to slip something by, which is frankly what occurring. If the agreement has expired, as of the effective date of the agreement, 2019. Then the land was in, not in this new owner, it was in River Landing Hotel Inc. From the city's records, that's the way it should be reviewed and viewed today. So I would respectfully urge Either you table the item until they get their act together and comply with what they said they would do, or alternatively, deny it and add this in addition to not meeting the 10, 15 criteria. This is a part of grounds for denial. Be happy to answer any questions if you have any.

So Mr Severs, so just so that I have this sir understand this correctly and I want to make sure that those in the audience and those that are viewing can see what we're talking about. So what you're saying is that This piece of land, which is where those two condominiums are across the street from high school.

They were supposed to be three up to 4000. Okay. Square feet, but they're not that.

All right. It's going to that vacant land just south of Titusville, which is this shaded area and that clear area. Yes. And then based on the totality of the entire area, they were able to build the 100 units here. Yes. Because of the totality of the area. Yes. Now that it's built. And the agreement has been expired. They're saying that we're going to now build on this other piece that we used that density for this piece.

Yes.

Which is against the agreement that they originally agreed upon.

Also, you see the yellow area? Yes. There was supposed to be a south entrance. Why the building official didn't require that, Mr. Rice was well familiar on a previous PNZ meeting about that. as well as have the property retention was supposed to be right there to surface growth properties. The reason why this was so important, which is 400 feet out of the 800 feet was because we in negotiating this were trying to preserve the view of the river, which was mandated by the citizens and Council of Titusville. Okay, now we're going to suggest to have a building right there. All right.

And so this top piece here actually extends into the water. Yes. So this is unbuildable land. Correct. That they're using to use that to increase their density on this other piece here.

Correct. Which we negotiated because there was some confusion as to whether submerged lands could be counted in residential density. There was a compromise. at that time and the developers agreement was entered into and compromised as I said the uplands 5.05 acres could only allow 76 units on it per the code.

Uplands being this area here not including the submerged lands? Correct. All right and last question I have is that the same owner that owns the green shaded area also owns this, which is also the person that entered into the original agreement.

Yes. It was all, they deliberately put it, they didn't want them in separate parcels because they wanted to claim the right to use the submerged lands over here in this property to build over here. Right. And then they deliberately excluded it.

So they're using this, again, submerged lands for density reasons on both properties. Yes. The one that they've already built on and they want to use the same submerged lands for density on this other parcel here.

Yes.

Thank you, Mr. Severs.

Member Rice.

Just refresh my memory a little bit. I know that the Burt Harris claim, that settlement with that Burt Harris claim, when you consider all the property, what was the maximum density considering all the property that the applicant owns? What was the maximum density allowed under that settlement?

Under the Burt Harris? Claim I claim they were entitled to $5,460,000 because of the reduction in density and not allowing this merged lands. They claimed. You can see it in their letter, which was in the documentation. They could build 198 units. It was a compromise.

But the settlement included how many units could they build completely?

Yes, 125. They built 100. They could have built 25 on the south end. Okay, so they have 25 left according to the settlement agreement. I thought there was going to be one entrance to the south, on the south side of what they built. Do you recall that?

I recall there was one on the north that never got constructed, also next to the condos. I do recall that. Okay. Member Gerard.

Thank you, Mr. Chairman. Mr. Seavers, using your experience 40 years as a city attorney and working through this creation of the development agreement, I've got, I think, two questions. The first is, you just mentioned an important topic, and we've had discussions along this line on other projects and other discussions related to creation of nonconformities. So if I understood what you said is at the time of the implementation of the development agreement, the property conformed and was consistent with the comprehensive plan and that created the development that exists today. 100 units at the river palms one project.

Let me just say, at the time of the agreement, there was a dilapidated Howard Johnson's, which we had severe problems with, with migrants and people breaking in there.

Yes, I read that agreement to understand raising the building on the second extension. The first extension was to raise the building was get more time and raise ability. But my question is more critical. What you mentioned about the subsequent heirs to the original ownership, the condominium known as River Palms that exist today as a non conforming use of the zoning district and an inconsistent density of the comprehensive plan that you mentioned that in your presentation.

The maximum density allowed in the comprehensive plan, and I've given you a copy of that, is 20 units per acre. The ordinary, you are allowed 15. If you meet certain criteria as a conditional use, you can add to that by five units.

And the question begs that in that, uh, I think it was in the original development agreement as well as the first amendment. There were a couple of very important clauses and one of those stipulated that if it became invalid, voided, nullified, that those properties currently developed would become nonconforming uses inconsistent with the conference. But I don't know. That's not a paraphrase of the statement, but that's close to it. So when you were the city attorney and this document got created, the development agreement, would that document have been, as part of due diligence, provided to all the subsequent heirs, all the condominium unit owners when they purchased so that they knew that upon an invalidation of that, their possession of property as a nonconforming use is affected?

In the title search, the agreement would show up whether or not a title examiner thought there was any significance. They may have said, well, it's expired. I'm not looking at it. I don't care what it says. I don't know. It's recorded upon the public records.

Point being is that one assumes all the condominium owners know that that determination that this is invalid has rendered them as nonconformities. And inconsistencies and things like that.

My simple concern is in 2000. Whenever the CEO was issued 2020 2021. You have 31.5 units per acre. On 3.17 or 3.19 acres. That's not allowed by the code.

The consolidation of density on the track developed as River Palms is what's non-conforming and inconsistent because of that density as a separate piece of land. It's not the same piece of land.

It's not as big. I assume if it was handled properly by what the agreement said, you're supposed to make a request to have a phase. They would review it as to compliance with the code. Compliance with the comprehensive plan. You're amending the C. U. P. It would be a public hearing process. The city is the one that entered into this agreement after public hearing. Not the building official or the development director.

The city that earlier I mentioned, but I guess my thrust of my question is not your participation in the creation. It's what has created a nonconformity and inconsistency, which is part of our presentation material that was in there. The document. said it's not to be considered relevant to the request because this piece of land is now non conforming based on the agreement. My question is reconstituting the property. If this was what we were hearing a request phase two, as you referenced it, if this was a crest inclusive of all the land whereby the request was evaluated on its improvements, it could have been 25 more dwelling units, I think is what you stated. It could be 25 more units, but it would all be part of a plan, consolidating all the ownership so that compliance and consistency and conformity remained. as opposed to creation of nonconformities and inconsistencies with the plan. By, I don't know how you say it, I guess it's like the proverb robbing Peter to pay Paul. We took this property and measured it to that, increased its density, and now we're going to walk away from it and let it flounder as a nonconformity. And that, to me, is kind of an odd circumstance, actually. A new project that's... I agree. I agree. I'm just kind of concerned whether these... As public notice goes, I'm sure the residents of the condo will understand and from gleaning more information from this information we get tonight and other meetings come to understand what that means to them. If that's the case, conversely, if it were to be presented as a constitution of all the land that says original development agreement did, you could develop this property in concert with the rules and regulations in effect today. With Allowing the properties that exist as River Palms remaining conforming as opposed to cutting them off and saying see you later. Correct. Okay. Thank you.

And that's what should have happened.

Yes.

Thank you.

Lori Seavers.

I'm Laurie Siebers, I live on Riverside Drive about three blocks north of this project. I would just encourage everybody and just from the questions that I've heard from you tonight, it's obvious that you are prepared in reading the material. Please read what Dwight is prepared. You wouldn't believe the state of our office right now. He has been working on this for days and days and it's very important that everybody understand what's going on. I just want to speak to the filling in of a portion of the river. Because we live on the river, we see the condition and we've been there 23 years in July. We have seen forests of sea grass disappear. We live at the Grace Street lift station and we know that Any water that comes out of there has definitely had an impact on the health of the river. We've seen such a decline in the state of the river, the disappearance of different kinds of fish, the blue crabs that used to be there. I know you've heard all of this before, but the river is coming back. And the filling in of the river to the north of us is not going to help that situation at all. I don't understand how a person can say that by putting a revetment there that that's going to help improve the condition of the river. And also by building a building there that would have, certainly have some kind of pollutants running into the river, even though they claim they will have some kind of a box to collect all of that water. We get a storm like we had last October, 500 year storm. Where is that water going to go? It's going to flow right out of that thing into the river with all of its pollutants and whatever. So, I don't understand either how with these pollutants in the water, they're not going to stay there. It moves up and down the river. Water flows. I mean, honestly, it's kind of a ridiculous concept when you think about it. So I would just encourage everyone to take this very seriously. It's a serious issue facing the people who live on the river and the creatures that live there as well. And thank you for your time.

Thank you.

Doug Stewart. I'll pass. Jay Peters.

I'm Jay Peters. I live in Verbal Palms, and quite frankly, I'm really concerned about what we just discovered about presented as an owner of our complex. We had no idea this is going on. Um, I would recommend if that is the case, splitting up a lot that the land is gifted back to us, because if we're not conformant, that's a huge issue. I grossly deny or the There are dolphins, there are manatees, there's a lot of activity in that cove. There is no erosion. Our dining room spaces that parking lot in that area. We've been there three years. There is absolutely no erosion and there's a lot of confusion from what the presentation was. One minute they're saying that the retention walls causing erosion to the lot and then there's then it's not there's a lot of confusion with the presentation so I Highly suggest that you deny this.

Thank you Just to let you know The whole problem with non-conforming uses Okay, especially in residential is that if your building is destroyed more than 51% You can't rebuild it Okay, you have to comply with the current code. And that's the problem with non-conforming uses. Or you need to get a variance to do that. I don't think you can variance density, quite frankly. I don't think that's allowed.

So the complex was built based on the whole land, the two phases for the 100 units. It was.

And so you don't want to have a non-conforming use on a piece of property. That's what you tried not to design to or have.

Doesn't that present a liability for us as owners of River Palms? I mean, in essence.

It's long term. It could be a liability.

Yeah, that's a huge problem. I mean, I think you guys need to really consider that. And again, my suggestion is they donate the land to our complex. Thank you. Thank you.

Jill Dobson. Tony Schiffalo.

Chippewa, the historic Norwood House. I had a presentation all prepared and it's sort of been shot to pieces because what I was going to speak about is that rarely do I agree with the decisions that staff makes about zoning. They always come down in favor of the developer for some reason no matter what comes out. And I was very impressed with their study, with their summary and their recommendations So I'm gonna just briefly go on to what I was gonna say, that in this time of heightened awareness of the necessity to protect and resurrect our Indian River Lagoon, especially here on the stagnant, prone to sewage spills North End, and in this time of active citizen efforts and private money, to restore the few undeveloped strips and to maintain those places along the lagoon, it's preposterous that I thought at first it was 400 feet and then I learned tonight, 843. It's more than preposterous, it's ludicrous that 843 feet of shoreline is requested to be casually destroyed to build maybe an office building, maybe a medical office building. You know, it wasn't clear. It wasn't part of their plan. And then it's going to be two stories with a parking garage on the bottom. Now, people have gone into about the policy, the flu policy 1.17.3 that submerged lands within the lagoon shall be utilized for water-related development only. I don't know that a doctor's office is water-related. It's true that they really want to alter an infill not to protect the river or to enhance the river or for the public interest, but so that they can get the setback for their buildings because we do believe in setbacks. The part about that they hadn't presented any kind of studies, environmental studies and things. How are we supposed to know what they've given to you privately since the agenda was published? I think, Mr. City Attorney, that the public should always be aware of all the additional things too so that we can speak coherently here. I wanted to point out that the 2015 Peril of Flood Act required the city to adopt comprehensive plan policies to address the risk from sea level rise and that this property was identified at risk for flooding. And they're gonna put the garage on the bottom floor. Let me just say one more thing, please, 30 seconds. On the bottom floor on a 25 foot new infill and just imagine. Oh, and their retention pond was going to be dry storage around the buildings. Think about the king tide, hurricane winds, the rain we had in October.

Thank you.

Thank you, Laura Ward.

Laura Ward, River Edge Drive. I was going to try to persuade you to postpone, but after hearing everything, I kind of think you get it. This was a really dirty deal that was done. We all know they're not asking to fill the river to make it better. That's not why they want to fill. Not to do anything to help the river or to help us. They want to fill the river for the simple reason that they can't build their project without doing that. And that's just enough right there that you should deny it. We all know that a straight line. Isn't the way to do a shoreline. We all know that a natural Configuration is better. I just think it's simple. Thank you very much.

Thank you. Michael, my Jack.

Michael Majak, Titusville. Long ago, 10, 12 years ago, when I was on the TEC, we debated the idea of hardened shorelines. And we came to the conclusion that we shouldn't have them, we shouldn't support them, and they should be in the future no longer conforming because, well, one, they destroy the benthic macroinvertebrates and everything in front of them up against the the edge of the lagoon, which destroys the living edge of the lagoon where most of the life, benthic life lives. The other thing is that on the edge of a seawall, say you put up a seawall but your neighbor hasn't, you're going to undermine the edge of your seawall because the ocean's not going to stop just because you seawalled it. It's going to end up coming around it and undermining it from the backside. It always happens. That's why they get damaged. The waves come up, they come down, they wash away the sand from underneath, they become undermined and they fail. Wash, rinse, repeat. This is what we're going to be doing at Parrish Beach at the park there. Every hurricane that's going to come through is going to damage the concrete. We're going to be fixing it every year, every time that something happens. Well, I read this. I started reading and I cut out all the fluff. I let the cream float to the top and I read her first bullet and deleted all the nonsense. Fill approximately acres waters of the Indian River Lagoon. That's all I needed to read. We don't fill the waters in our lagoon. Our comprehensive plan says we don't do that. We, the Environmental Commission, recommended that we always go forward with littoral plantings, not hardened seawalls, to protect us because we understand what the mangroves do to block the wave action when we have a storm. Building another hardened seawall does not benefit that. And doing what I just heard, and Member Faison, thank you for making that point so very clear. This is simply double dipping. This was already spent land and they're trying to build on it again. Please deny this request. I concur with staff's recommendation. Thank you. Thank you.

Laura Lee Thompson.

Thank you.

Laurie Thompson, Mims, Florida. So I'd like to refer you to page six of the applicant's response to shoreline and environmental issues. The five part technical demonstration paragraph two down by the bottom of the page. It says loss of shoreline and aquatic vegetation. The total and environmental Company completed a sub aquatic vegetation survey of 30 stations across 1.6 acres and found no seagrass rooted macro algae or sub aquatic vegetation in the study area. The fluke's classification is 100% barren substrate confirmed independently by the Saint Johns River Water Management District 2023 seagrass coverage map. There's no submerged aquatic vegetation to be lost. TEC cited the St Johns River Water Management District 2023 seagrass coverage map. I just gave you the newly released St Johns River Water Management District 2025 seagrass coverage map, and it clearly shows dense, continuous seagrass coverage offshore of this property. According to St. John's River Water Management, this is not an ecologically barren, submerged area, at least not last summer. I agree that there was no seagrass there in 2023. I agree that there was no 20 or no seagrass there in 2024. But in 2025 last summer, we had an explosion of seagrass along the shoreline of Titusville, Florida. And and and it started this big massive seagrass started right here at this 800 ft piece of property and except for where the post office sticks out and where Washington arms sticks out that seagrass goes from this point all the way down to the NASA causeway. And so I watched it all summer long at the Rotary Pier. And in June, we had a massive carpet of halodule seagrass real close to the shore at the Rotary Pier. Well, by the end of September, it was gone. The bottom was barren where the seagrass had been in June and July. That's what seagrass does. It comes from a seed bank. These seed banks are all up and down the lagoon and they pop up seagrass when the conditions get good enough for the seagrass to start growing. I believe that there's probably, if you went and looked right now, there's probably seagrass coming back because it's the beginning of growing season and there will be seagrass in front of this property this summer. That's my guess, just based on what I saw a half a mile away at the Rotary Park. As far as the erosion, you can look on Google Earth. The historical maps go all the way back to 1995. And if you look at that shoreline, the shoreline was pretty much in line with the... Could I have like two more minutes, please?

I'll make a recommendation, the same as before, five minutes, make sure you include it. All in favor?

Aye. Thank you. If you look at the 1995 Google Earth map, it shows that the shoreline was pretty much right in line with the ends of the two concrete pads. that stick out. It didn't extend out into the river. It was pretty much in line with those two concrete pads. There was a little bit of shoreline that stuck out beyond the concrete pads on the north side of the concrete pad that's in the middle between where River Palms is now and the middle concrete pad, but it wasn't much. And it was nowhere near this line that they've drawn that they want to put this wall of rocks in a straight line out in the middle of the river, basically. And then they want to fill in between the rocks and the shoreline. Rock revetments, well, the worst thing you can do for seagrass is put in a vertical seawall. You can't do that anymore. Now, since you can't build a seawall anymore, the worst thing you can put in as far as seagrass and the benthic creatures that live in the sediments is to put in a rock revetment because when the waves crash into the rock revetment, there's backwash. They go backwards back from the same direction they came from. It's like a washing machine in front of the rocks. All of the stuff that's in the water column, the leaves from the oak trees and the mangroves, the seagrass, the macroalgae, it gets ground up. The rocks are like a grinder and all of that stuff gets ground up and it sinks to the bottom and it turns into muck. That's one of the things that happens. The turbidity cloud that was mentioned by the environmental consultant, that happens in front of rock revetments and you can see that when you drive down Riverside Drive when we're having a hard easterly breeze in front of Dwight's house and you'll see that there's a There's a ribbon of brown cloudy water that's all along the shoreline. That is from all the ground up detritus and stuff that's happening from the waves grinding up everything in front of, you know, in the rocks because most of that shoreline is covered with rocks. So rock revetments absolutely do nothing to help the Indian River Lagoon. They do protect the property that they're in front of to a degree. But if we get a hurricane and the water level comes up three or four feet in the river, the waves wash over the rocks and they undermine the land that's behind the rocks. And then then it caves in. So they really don't. I mean, if they really wanted to protect that shoreline and help the Indian River, they would put wave breaks. out in the river like what we have on the south side of the Titusville Causeway. Put wave attenuation devices out in the river and then plant a vegetated shoreline behind the breakwaters. That would be the best way to protect that shoreline and be environmentally friendly. But that's going to cost a lot of money. So these guys are going for the cheapest thing that they can do to protect that shoreline and it's not the best thing for the river. So maybe we could do like the Sebastian concept. Let them put the rocks out in the water, but then when it comes time to fill in, you can say, no, Titusville, you're in our area and you can't put the fill there. So they would just end up with a bunch of rocks out in the middle of the water. And again, that wouldn't help the river. Our citizens and visitors to this county are spending hundreds of millions of dollars to fix the Indian River Lagoon and and the river is getting better. I see it all the time. I'm out there all the time. The seagrass is expanding. Titusville is the only municipality on the whole length of the Indian River that has a bunch of seagrass in front of our shoreline that there is some in front of Cape Canaveral and the Banana River, you know, but The Indian River, we're the only ones that have seagrass, and we need to keep it that way. Approving projects like this is not going to help our seagrass, and it's not going to help the river. So I would ask you to please deny the CUP. Thank you.

Thank you.

Oh, one more thing. Freshwater is bad for the Indian River. And so even if they put in all these things that filter their stormwater, when you put that much impervious surface on a piece of property that right now is the rain is soaking into it, that water is going to go somewhere. And if it goes down into the bottom of an exfiltration trench, it is still going to end up in the Indian River. It'll go into the ground, and the groundwater always moves towards the river. So you're going to be putting a lot more fresh water into the river, and if the surface ponds overflow, they're going to go into the river, but that water won't be treated. So that's another thing to think about. Thank you.

Thank you.

Earl Johnson.

Earl Johnson, Titusville. Well, I'd say all that you've heard from the applicant, and you definitely got an earful from the applicant, in my opinion, really doesn't make much, whatever they said really has very little bearing on the matter. It seems to me that the CUP violates the multiple policies in the comp plan. To me, it's just that simple. As staff cited and member Faison mentioned too, These policies are strictly right there, and the CUP violates them. It is really just that simple, and I think that is the only criterion you really need to apply to this application, and it should be denied based on only that consideration. Thank you.

Thank you.

Stan Johnston.

Stan Johnston. I've been a member of this community for over 55 years and I'm a registered professional engineer and land surveyor. My land surveying license though is an inactive license. So I've done a number of work for the Manzos. The Manzos own several properties on the river and on one of them I did the Manzo Park and it was, I don't know why you call it, but it was like we put sand in there and put a filter over, a cloth filter over it so the water can go through the sand and out there and then rocks on top of that. Whatever you want to call it, whether it's a revetment or whatever it is. And so that's what we did and actually St. Johns River Water Management, what they did is they just gave me, this is what you're going to do. You can't do city walls, you can't do so, so, so, so. So I just did what they did. what they said. That was a real easy job for me. The other thing I did is I worked on their project that you're looking at right now. Mr. Sievers said it was 397 feet frontage. I did the topo for that. I used also for the topo, I used the 1974 aerial that the city has done by Kucera. It's an aerial topography map and I used that locating trees and so forth. When I went down to the water level, I couldn't see the top of the ground because there was a wall of dirt, wall of dirt almost vertical, that's over six feet taller. That's what I was looking at on this over 300 foot stretch of property. There was no evidence whatsoever of any kind of revetment. There's a few rocks there, but there's no evidence of revetment for that section of the property that you're looking at. None so often. I'm telling you that as a surveyor and I've looked at the property and other people are in agreement with me. I have a second thing I want you to look at. Second thing is, this is serious. This is your culture breezeway. When I worked for Brevard County, they had breezeway requirements and they had a definition for breezeway. They violated it back and forth again and again and again. As an employee of the city of Brevard County, I kept my mouth shut. But when I came to, similarly, when I came to the city of Titusville, I asked for a definition of breezeway. They would never give it to me. So as far as I'm concerned, these are the projects that were done before this. It looks like to me it violates my breezeway definition. And that's serious. I think that the city of Titusville should give you a definition of breezeway that they can apply. Now what I see is gates, fences, park vehicles and so forth, disrupting. I can't see the river. I don't call it a breezeway. So I would like you to look into that matter also. That's very important to me. Any questions? You sure? Two, one. Thank you.

Thank you.

Kathleen Burson. Christopher Childs.

Hey, guys. Long time no see. So if you disregard everything that the Honorable Dwight Seavers gave you, which is considerable and a lot, I know it could be litigated probably. It's got so much information. But even if you disregard that, I think it still comes down to the comp plan, the FLU, 1.17.3, unless you think that a drinking fountain in a medical office building complies with a water-related activity on the water, I don't think that they're meeting the comp plan. I think it comes down to that. If anyone needs to know anything about baffle boxes, watch Gold Rush. It's great about explaining baffle boxes to you. Thanks. Thank you. That was the last card.

All right. Thank you. We'll bring it back to the council. My apologies. We have a rebuttal.

Thank you, Chairman, members of the Planning Commission.

I'd like to talk specifically about a few things that were said by the public.

First, I'd like you to look at the survey that's in your packet. All of that yellow that is deeded land is not yellow in your packet. The Cane Surveying Survey, dated 2-5-24, by Joel Seymour, registered land surveyor. Everything they're talking about is private property. It's not submerged lands. So when they're saying you're putting something in the middle of the river, you're not. You're putting it on their property. It was deeded by the state of Florida to someone, and it's their property. So it's not the middle of the river. It is private property. It is private property rights. Regarding the transfer of the deed, it was sent to Mr. Adams, the building official, on April 3rd of 2019, apparently according to the date Mr. Seavers gave during the DA period, and there was no objection made. There was no detail in the DA as to what was to be done for review. The DA was negotiated based upon the $5 million lawsuit filed by the Codseys. The Codseys had at least two lawsuits against the city, and Mr. Seavers has been involved in both, intimately involved in both. And so this DA provided 125 units and height that was in excess of the code that was allowed at the time, still in excess of the code that was allowed at the time. It provided that the covenant's running with the land and that, indeed, it would be nonconforming if they didn't meet the code when this agreement expired. At the termination of the agreement, all the existing codes shall become applicable to the development of the real property, and this property was subject to the real property. So that being said, we're now under the current code for the new property, and the current code is SMU, and we are trying to meet the criteria of the code. The new conditional use for altering the shoreline came in after they purchased the property after this development agreement expired. So, we're here asking for a CUP for altering the shoreline. Not whether you like the use, because the use is allowed, but it can alter the shoreline to meet the setbacks. So that is the purpose of the reason here. The other issue is that this is a DA that has expired seven years ago. There's been no lawsuit filed on it. And as I said, it's too late to file it. And if you want to say it was... Not executed in good faith or it was breached fine, but that's not what we're here today to talk about We're here to talk about a CUP for altering the shoreline Miss Laura Lee Thompson provided a 2025 Document it's not clear what the light blue is versus the dark blue You have conflicting testimony from the woman you deem to be an expert, Lisa Toland. And again, this would be something that would be determined at the permitting stage at all levels if the CUP is granted. Your city code does indeed anticipate altering the shoreline and provides detailed codes, section 30-64, which is the reason Ms. Toland provided that report, because this was pulled into the staff report when we had no idea it was going to be required. It's in criteria 11 of the code, which is a very generic requirement. Proposed changes out of scale with the needs of the neighborhood or the city, and then they pulled in this alteration of the shoreline and what it would degrade. The shoreline, which is why you have the report you had today. It brought it brings in section 30 dash 64, which there's no way from the C. U. P. Ordinances or the city code. We would know that the alteration of the storyline setbacks in the degradation and the seagrass study would be necessary under your code. Regarding the flu discussed that says you shall not use the submerged lands. for anything other than water related development, there is no definition in your code of water related development. So the staff report says it may conflict. It doesn't say it does conflict. Says that the land shall not be used for density or intensity. Again, we're not using it for setbacks. We could go to the Board of Adjustment and ask for a variance, and if this is denied, That's the next step, but at some point this property is going to be used. The city does not get to dictate ownership. The public does not get today. Gifts of property ownership either. And when you're looking at the staff analysis, You have it may conflict with flu policy, but there's no definition. So when there's no definition in derogation of private property rights, the tie goes to the owner and applicant. Ingress and egress is not an issue. The nuisance factor, that's also going into adversely affecting water quality, which is not one of the nuisance factors raised in Criteria 3. That's traffic lights, noise, order, smoke, glare, electrical. not whether or not we're going to degrade the water. Shall not cause a dot the levels of service. The report itself says that stormwater and potable water is not an issue. Traffic report provided for you says there's 486 average daily trips. The current volume is 26,000 940 in your staff report, which is less than 20%, so traffic is not an issue and not a concurrency issue. that's violated in these criterias. We did not provide signage. That's a site plan issue. We've given you the hours of operation. We've reviewed medical office from consideration. Required yards and open space. I believe there was a comment that there was an error in the staff report. Regardless, our engineer testified we met the breezeway criteria. And then general compatibility with the adjacent properties and other property in the district. This is compatible with the SMU because it's one of the approved uses and it doesn't exceed 50 feet. Then there's the proposed buildings are the staff report even says the proposed buildings and uses are generally compatible with the surrounding area and zoning. And then whether the proposed changes out of scale with the needs of the neighborhood. It says it may be considered out of due to the request to alter the shoreline, but it doesn't explain why. It goes back to flu strategies and code sections unrelated to the concepts in this particular ordinance. It does, again, talk about the new rock revetment and Code Section 30-64, which we answered all those questions by the expert. Again, the request is to alter the shoreline. If you are going to deny, you need to have a reason to deny based upon the conditions of the code. The conditional use criteria is generally the simplest to meet of any land entitlement, and we believe we have met it here today. We are not seeking density. We're seeking intensity under the floor area ratio. So we have not used up the density on this site. Didn't even use the density agreed upon in the development agreement.

But that's not applicable.

Correct. It's not applicable. correct correct i'm just responding to mr sievers i'm responding to comments it's not applicable you might not like it obviously you don't i've heard lots of comments about dirty pool but that was something that happened long ago and the city's been well aware of it and done nothing about it Again, we believe we have met the criteria, we have met the comp plan, and because there's no definition of water-related activities, water-related development, there's no reason to deny this CUP. Thank you very much.

I have a question for you before you go. Yeah. So you continue to call that land, that is submerged land, private land. And so I've asked you to state the regulation that allows you to own that land that is submerged land and deem it privately in one moment. And so when you say that we need a regulation to back what I'm saying, I'm going back to the state of Florida's mean high water line. I know you're familiar with the mean high water line. So what does the law governing the mean high water line mean to you?

That's not an issue to be addressed. Why is it not? There's a definition actually in the city code, which I would look to before I would look to the state.

Why does it not apply?

Because we're dealing with altering the shoreline of private property.

Right, but we first have to define what that private property boundary is.

It's defined by deed and survey.

And so the mean high water line is what is used to define the boundary between the water and the land. Now, if otherwise, if there's something that I can go to, I'm asking you to support your standing that the submerged lands are actually indeed private land, because without the submerged lands being deemed private land, then you're right. So I'm trying to support your argument, but you're not giving me anything.

I don't understand why you won't accept the deed or the survey as showing as private property.

Because the main high water lane tells me that from the 19-year average of wherever that high water line mark is from a 19-year average, everything above that line is private property. Everything below that line returns to the state, even if it happens during erosion. So you can tell me, one moment, so you're telling me that the submerged lands are private lands, and I'm asking you to show me the regulation that allows you to have that after erosion has occurred, after erosion has occurred.

It's a concept that doesn't make sense in legal terms because it's private property by deed and survey. So what you're asking is not a concept that makes sense in the context of private property ownership.

Okay, but I understand that at one point in time, let's say that entire land was private property prior to 1970. And again, if you have a deed that shows that after 1970, I'll go with you. But since 1970, if that was all land, and the law now states that if erosion has occurred, your boundary has moved and that land is then returned back to the state. You're contending that that doesn't apply to you in this case. And so I'm asking you, can you show me where I can go to that, that this now submerged land still belongs to you? still belongs to you.

If we did not own it, we couldn't fill it in.

Correct. And that's my point. You don't own it, and so you can't fill it in.

But they do own it. You could only own it if we allow you to. If you want to deny it, that would be a great basis to deny it on.

I'm asking you to show me.

I have shown you. I can't tell you anything more than a survey and a deed.

Okay. So on Brevard County property appraisers, there's a sketch plan. Right? There's a sketch plan.

The property appraiser's office also has all disclaimers. You can't use it for legal purposes.

So every time you send me someplace, I go and I look there, and I can't support your findings, but then you tell me that that finding is no longer valid.

I didn't send you to the property appraiser's office.

No, you said go to the sketch to the deed, right? You said go to the deed.

I said go to the deed.

And that deed is filed.

And go to the survey, which is in your record.

Thank you, ma'am.

MEMBER GERARD. THANK YOU, MR. CHAIRMAN. IN YOUR REBUTTAL, I'M NOT SURE WHICH OF YOUR EXPERTS WILL BE THE ONE WE NEED TO ASK, BUT THE ENVIRONMENTAL EXPERT WAS THE ONE THAT SUBMITTED HER STUDY AND THE REPORT AND THE ANALYSIS AND MADE TESTIMONY ON HER. AND A LAY PERSON, I DON'T MISREPRESENT MS. THOMPSON AS A LAY PERSON BY ANY MEASURE. you testified on rebuttal that she is a identified expert. You wanted to make sure we knew that Miss Thompson presented this document and I got, I drew the conclusion. This is a little newer document than your expert provided in the study. My question is, why did your expert not provide a more current map if one's promulgated and in effect by the St John's water management district?

I apologize about that. That would be just more related to just how quickly we were turning things around and had not downloaded the new 2025 maps coming down to our GIS system. Sure.

This is the quickness since you had this submitted in 2025 in June?

I got this project Thursday.

Oh, you did. There was ample time in all of this to illustrate what documents you would have supported.

No, sir, because that's not a criteria in your code to do a seagrass study.

I understand, but you submitted testimony and evidence from an expert that was a dated map. Does that sound right?

No.

That's not right.

In the sense that I actually physically went out to the site and reviewed the property and conducted a seagrass survey per the codes on that property.

The evidence you submitted in your study is not current evidence. Is that a fair statement?

No. I think you have a conflict between an aerial interpretation of a map and we don't know what If this light blue area is open water, then it's completely consistent with my report. If this light blue area shows something other than open water, so you have two, if you look at the map that was submitted to you, you have two color codes, a light blue color code and a dark blue color code. The light blue color code isn't identified. I have to go back and pull... this on my system i'm just relying on your expertise right and my expertise says i was in the field i walked that site and there was nothing there um as part of the as she said as part of the review process we don't first of all we don't know that this map conflicts with my report because we don't know what the light blue means it's open water but i'm hoping an expert might

I have one more question for you.

Well, if it was labeled, an expert could interpret the data.

But you are familiar with maps, and I guess I could ask you, are you familiar as an expert that the St. John's Water Management District updates maps that represent such information as this document represents that states it's a seagrass continuous system? Parenthetical thing.

Offshore of the site, that dark blue area.

No, no, they update information, that this information is updated on some reasonable basis.

Based upon aerial interpretation and some ground truth on the ground, but I physically was on the property.

Okay, my question is to you, are you familiar that these maps are updated?

Yes.

And this might be an updated rendition.

I agree that this could be an updated rendition, and I need to look at it.

Would you agree that the layperson stated that the seagrass can kind of ebb and flow, so to speak, like a tide? It can go away and come back again? Do you disagree with her?

In that offshore area, if this dark blue is continuous seagrass?

Simple question. Do you agree or disagree with the layperson's statement more accurately stating that this grass could appear and disappear as the ebb and flow of a tide might do, washes it away and brings it back? Nature does that. You could have been at the site when there was no seagrass in your on-site visit, but in fact, seagrass could be there later? You didn't survey at 24 7365. That's correct.

Thank you. Thank you. Thank you.

We're going to bring it back to the board. Member Faison.

Question for our attorney. I've been talking about the mean high water line. Is the property that she's claiming to be private property, the submerged lands, Is that indeed private property, or does this mean high water line actually apply?

Yes, it's private property. The submerged lands are reflected in the deed. The Florida Constitution itself purports to allow for alienation by the state. When statehood happened in 1845, the navigable waters of the state became vested in the public, but the Internal Improvement Trust Fund has authority to alienate those as they see fit, and they've done so in this case.

And then when erosion happens of said property line, private property, does that not move the line or does it still stay, the submerged land still belongs to the owner?

It would be akin to building a pond in your backyard. The fact that there's now water in a different place doesn't change the property rights between the two.

Okay, thank you.

Member Rice.

I have a couple questions of staff. First, the city attorney. Does notification to the building official constitute notice by the applicant per the developer's agreement? Is that an official notice? Is that considered an official notice?

Prior to this hearing, I didn't look deeply into the terms of the development agreement just because the nature of what's before you is just the CUP and whether it meets the 12 criteria. I would have to look deeper into that.

Well, my next question has to do with the developer's agreement, too, because where I struggle a lot is that we have a situation that we're creating a non-conforming lot on a parcel if we approve the CUP that the applicant was directly involved in at one time. Does the developer's agreement and the criteria in the developer's agreement and those items that were supposed to be done, such as notification, such as not making a non-conforming lot, is it still binding in today's environment, even though it's surpassed? Because what I heard several times is that the agreement that was in place ran with the land, not necessarily with the agreement. And the reason why I'm saying it that way is because the variance, if you had a variance, variance is always run with the land. You can change zoning, you can change all kinds of things, but the variance always runs with the land. So in my logic, because of what was said tonight, that the agreement runs with the land. although the agreement dies, but the conditions of that agreement run with the land. Is that a correct statement?

I wouldn't necessarily agree with that. The agreement would run with the land during the life of the agreement, but the agreement expires on its own terms. A variance doesn't provide for its own expiration, which I think is the distinction here.

So what happens when an agreement sunsets and all of a sudden you have a nonconforming situation that was created because of that agreement? And that's where the official notification comes into play, because that could have been challenged if the official notification that land was going to be separated or deeded over, because the agreement was based on all the land. It's germane to whether the non-conforming use is relevant or not relevant. Was the official knowledge and the official notification by the applicant through the building official a correct course of action?

I can't speak to that at this time.

Then to staff real quick, with the CUP, The conditions that you outlined in the report, are those set in the CUP ordinance that these were the things that they needed to do, or were those things that were generated based on staff's interpretations?

Are you speaking to the CUP review criteria?

Yeah, the review criteria that you have listed, I think there was 11 of them.

Right, those are the typical review criteria for a Conditional Use Permit established in the Land Development Regulations.

Section 34-76 of the code.

It's in that section? Yes, sir. 34-76, okay. So then, what I'm sort of amazed at, quite frankly, I think you were being very kind to even submit this application. Because there was a lot. I mean, I had three pages of notes of things I was concerned about because the application didn't address them until I saw a bunch of documents today. And so I think the CUP was probably prematurely submitted for approval to this board. before all the information had been satisfied on the CUP criteria. That's just the way I look at it. Because you can see what has transpired tonight was there was a lot of questions because we got a lot of late information that we just didn't have. So you were being kind in submitting it, trying to expedite things. I get it. But this case was a tough one.

Member drug. Thank you, Mr Chairman. Question for staff. Testimony night from the experts. Um For the proponent of the project have centered around What I see three things. They are doing a conditional use because they have to and regardless of the permitting agencies authority over the Design and construction of the proposed revetment infill to achieve, as I understand, point one required breezeway setback. So we can't meet the setback on the standard of land that exists today. To build something unless I expand the land to meet the breezeway setback. We heard testimony say that this plan, which is conceptual and it's not really subject to review. It's the review of the plan for what purpose, which is to do the fill and the revetment to expand the land to meet the breezeway requirement. Is contingent, however, by the testimony on the plan, which shows two buildings that are 7000 square feet per floor. I think that's what was testified to and that 14,000 square feet would exist in one building and 14,000 there about square feet in the other of the two buildings. That's what I heard tonight. Is there any requirement in the city code that land supports the absolute capacity maximum of intensity as reported by the attorney, not density since they're talking about office space and for your ratio. As opposed to dwelling units that was testified earlier about the inapplicability of the development agreement that we're not going to build the 25 units. It's all about office space. It's not about medical, but it's about the two buildings 7000 square feet per floor. The required parking all the supporting infrastructure for the required parking stormwater drainage. All the requirements of stormwater drainage that improve the size or dimensions, we heard testimony about tanks and it's going to go in the tank and that's good. But I would conclude the more impervious surface, the bigger the tank. It seems logical to me. And we've heard this about the plan, the two buildings, 7,000 square feet per floor, and that to do that, achieve that plan, I have to meet my setback requirement, the breezeway. The third question is, can this land support a building in a mixed use development scenario? Of some size any size or is it the land can't be developed because it can't meet all the crime. So nothing can be built on it. So the question for me for staff will this land support A development that meets the standards, but it certainly wouldn't meet the standards that's been submitted because we know that they have to fill land in to meet that standard. So that's the simple third question.

OK, loaded loaded question or questions are to restate that. Are you asking whether? Uhm, the scale of the the development is proposed tonight is required and could the applicant be proposing instead something of a smaller size?

Yes, not depriving reasonable use of land as property rights are inherently allowed to achieve. That's been testified to and supported by the attorney recommending that if you don't let me do something, then you're taking away my property rights. For property rights, can something be built on this that makes the mixed use zoning district on the current land as it exists today. Envision square feet commercial office, envisions ratio of parking, envisions ratio of impervious to stormwater retention, envisions compliance with setbacks.

I'm not a site designer, but I would say it's likely. Probably. However, there was mention of the erosion of the shoreline, and so there is likely a need for some stabilization to occur, and the code as it's written, Section 2927, which is the section of the code that initiated this request for a CUP states that any alteration of the shoreline requires a CUP. So even if they were to scale down the request, if they are going to improve the shoreline, restore the shoreline in some regard, alter it, they would still come before you for a conditional use permit.

Sure, and if envisioning that some reasonable use could be provided on the property based on the code, the setbacks, et cetera, that in the event that such a proposal might envision through CUP process a fill, less building, less parking, less fill, less revetment, less distance of the 883 feet, would that be reasonable for me to conclude? downsizing the scale it might be easier and it certainly would afford less of an impact if it's an impact we're looking at from this fill material and this revetment so in other words make it smaller meet the code and then come back if that code requires you to do an alteration that could be a process potentially yes and and I guess the last part of that same box of questions about development potential and it Testimony earlier was about how there's a Taco Bell across the street and there's a apartment building condiment into the South and there's a restaurant. We heard that I think earlier and one of the buildings that was utilized in the analysis was River Palms and that this would not be disharmonious or intensive in terms of what it would look like against River Palms. 100 dwelling units on the remaining acreage existing as a nonconforming use inconsistent with the plan, I'm not sure we should be considering the intensity of something measured against a nonconformity. That would just compliment nonconformity by saying, well, this great big building is what I measure myself by. Therefore, I need a great big building or I may have a great big building because this is. However, my measurement is against a nonconformity. The applicant has stated it's a nonconformity because the DA is invalidated. And in an analysis of the properties for flora ratio relationship around that, is this proposal at its current size Equal to or greater than the floor area ratio of properties around it as testified tonight using the examples of the taco bell in the apartment building. And if you use the example of, um. River palms, the only problem I have with using that is it's a nonconformity and it's inconsistent. So I don't think it should be considered as. measurable application. Those other ones, however, that I would assume conform and aren't inconsistent would be measured. Is this proposal as it's presented in order to warrant the C. U. P. To do the fill and put the revetment to expand the property to meet the setback. Is it excessive to the other related properties around it? Does it? Is it disproportional? Is it greater in Florida ratio than other surrounding properties development? Except that using the example of River Palms.

Mr. Murphy?

So the two-story townhomes to the south of the property had a floor area ratio of 0.51, and the project as proposed has a floor area ratio of 0.55, so it's similar. That's what we have. As far as an analysis of the similar floor area ratios at this time.

So the development proposal that's similar, but you read a number that is greater. The point I'm trying to get to is its intensity is predicated on requiring filling the property. If you didn't fill the property, you would naturally reduce the intensity. Reducing the intensity would not necessarily mean it's less harmonious with the other properties. It may even be closer to balancing that as opposed to being larger, greater in scale and scope. And again, all of that's contingent on, but I need this 14,000 square feet I think is what it would be. Is that right? Seven, 14, 34. What is it? Seven, 14. So 14, 14 is 28 or something like that. That's intense on this property requires the improvement through the CUP. If the CUP is not granted, you could still build something, but you have to meet the standard and the setbacks and the intensity would be under the maximum. Certainly it wouldn't be at the maximum and it would still be reasonable use of land provided for because it meets the code because it's a long, skinny piece of land and somewhere you could situate a building on that that would be meeting the zoning code, whatever that is meeting the comprehensive plan for intensity that that certainly seems to me it could be done. And it seems to me that what I see is very intense in comparison. And it's only intensity is given to if you fill in the river to get enough real estate to meet setbacks to fill in retention. All those supportive improvements that are born from the bigger the project, the more the supporting infrastructure to support that becomes. Reduce the intensity of the project. Meet the setbacks. Everything falls into scale more so than what's proposed. That's how I view this for everybody's understanding. That's what I'm looking at in the conditional use analysis. Thank you.

Member Faison. So Google is my friend. And I enjoy Googling. And so sorry this comes to you. I know as an entrepreneur, I know what this term means. It's bootstrapping. As an entrepreneur, that means you're going to dig it by the boots. You're going to just try to make your business work as hard as you can. But in this case, what does bootstrapping mean and does that term apply?

I'm not certain what you're looking at.

Okay. Google tells me that bootstrapping occurs when a property owner intentionally takes an action such as illegally expanding a building or subdividing a lot improperly or artificially inflating floor area ratio to create a zoning violation, which is what we would do if we do this. And it says, then use that self-made violation to argue that the city must grant them a variance or an exception because the property is now unusable or non-conforming under standard codes. Then there's a legal defense for that, right? It's called self-hardening, excuse me, self-created hardship. If the owner goes, therefore, before the board, the board can then argue that this is a self-created hardship because they've already used said portion of the land on the north side, and they are now asking to nullify the original agreement, calling it a hardship, and then use that same said land for the south portion. And again, that term is called bootstrapping. I didn't know that. Thank you. I'm sorry. Did you guys understand all of that? Did you catch all of it? All right. I see some confused looks there. All right. What's the pleasure of the board? All right. Well, you can close that. Close that. Then it's back to us.

we'll close up the public here. Thank public portion. All right. Back to the board.

So again, so as a, as I looked at the term bootstrapping and I understand what it means now, um, and again, by not wanting to talk about the da, but she brings up the da, but don't talk about the da cause the da doesn't apply here cause the da expired. But Hey, but because of the da right, we now have the opportunity for city of Titusville to make the north portion nonconforming 31 units per acre, And then we're going to use that same land to reallocate it to the south side. That's a self created hardship. And the ownership never really changed. So the underlying owner owned the north and he owns the south and he owns all of it. And he himself entered into the agreement himself. He willingly entered into the agreement And then thereby says that the agreement expired. Well, that's a self-created hardship. The city didn't do anything. No one else did. It's not a new buyer that bought the land unknowingly what had happened. This is a self-created hardship. And that term, that strategy that's being employed, according to Google here, it's called bootstrapping. So, when asked that can we defend that, I believe there's a legal framework to defend a choice that we should make. We can then, we identify the strategy and then you can identify the legal defense for said strategy.