Subject:
Title
Consideration of a Tentative Settlement Agreement Under the Florida Land Use and Environmental Dispute Resolution Act for Property Located at 134 Diane Circle
End
Fiscal Impact:
None.
Dept/Office:
Code Enforcement / County Attorney’s Office
Requested Action:
Recommendation
Consider comment from the property owner and the public, and take one of the following actions: (1) Accept a tentative settlement agreement as submitted and direct staff to proceed to implement it, authorizing the County Manager to execute a non-statutory development agreement in a form approved by the County Attorney; (2) Modify the tentative settlement agreement and direct staff to proceed to implement it as modified, authorizing the County Manager to execute a non-statutory development agreement in a form approved by the County Attorney; or (3) Reject the tentative settlement agreement.
End
Summary Explanation and Background:
On October 28, 2022, Joseph Traska submitted a building permit application for an accessory structure consisting of two shipping containers on his property located at 134 Diane Circle in an unincorporated beachside area between Indialantic to the south, and Melbourne to the north (the “Property”).
On March 24, 2023, the Building Department issued a building permit for the structure, depicted in the plans as two shipping containers stacked in a perpendicular arrangement. Mr. Traska later commenced construction.
On October 17, 2023, after receiving a complaint regarding the shipping container structure, Code Enforcement commenced an investigation. During the investigation, it was learned that Mr. Traska’s building permit had been issued in error, in violation of the Brevard County Code of Ordinances. Subsequently, the Building Official issued a Stop Work Order as Mr. Traska’s construction in the field deviated from the permitted plans in violation of Sec. 22-47(110) of the Code. Code Enforcement issued a Notice of Violation for this offense, as well as for the stacking of shipping containers in violation of Sec. 62-1102 of the Code. That Code section provides, in pertinent part:
“A new or decommissioned cargo shipping container may be used as a residential storage building/shed only, subject to all the requirements for use as a residential storage building/shed, and no stacking of containers shall be allowed.”
Code Enforcement Hearing and Special Magistrate Order
On December 19, 2023, Code Enforcement Special Magistrate Stewart Capps held a hearing on this case. On February 14, 2024, the Special Magistrate issued a Findings of Fact, Conclusions of Law and Order & Lien for Costs. The Special Magistrate found that the actual structure built on the property deviated from the permitted building plans. He further found that the structure is comprised of shipping containers stacked on top of each other in violation of Brevard County Code. The Special Magistrate ordered Mr. Traska to unstack the shipping containers and obtain an approved revision to his building permit, in full compliance with the Code, or return the Property to its configuration prior to construction, by March 14, 2024. The Order provided for a fine in the amount of $25 per day to be assessed beginning March 15, 2024 until compliance is determined by Code Enforcement.
The Florida Land Use and Environmental Dispute Resolution Act
On February 26, 2024, Mr. Traska’s attorneys invoked a procedure known as FLUEDRA (the Florida Land Use and Environmental Dispute Resolution Act), which is codified at Section 70.51, Florida Statutes. FLUEDRA is intended to provide a means to resolve land use and enforcement disputes outside of litigation. The process is rarely utilized, but when it is properly invoked, it is mandatory and the County was required to participate in the process and share equally in the cost of the proceedings. Notably, invoking the process tolls the time for an owner to initiate legal proceedings.
Pursuant to FLUEDRA, the County and Mr. Traska participated in a public mediation process facilitated by Special Magistrate James Stokes. According to the statute, the goal of mediation under FLUEDRA “is to focus attention on the impact of the governmental action giving rise to the request for relief and to explore alternatives to the development order or enforcement action….” The mediation was attended by County staff, Mr. Traska and his attorneys, and members of the public both opposed to, and in favor of, Mr. Traska’s shipping container structure. After hours of mediation, County staff and Mr. Traska agreed to a tentative settlement agreement. The tentative settlement agreement represents the efforts of County staff to negotiate a potential resolution in good faith, while addressing concerns of neighboring property owners to the greatest extent possible. However, it was understood that County staff did not have the authority to bind the County, and that Board approval would ultimately be required.
Tentative Settlement Agreement
The tentative agreement required Mr. Traska to submit a request to revise his building permit. The submittal was required to:
• address the difference between the approved construction plans and the actual configuration of the shipping containers;
• include a certified survey, signed by a Professional Engineer or Professional Land Surveyor, confirming that the Property is at least one-half (0.5) acre in size;
• provide for exterior balcony/deck area(s) to be enclosed on the accessory structure’s East and South-facing sides with an opaque barrier sufficient to shield view of neighboring properties;
• include exterior renderings and details of the exterior façade, to include materials, demonstrating that the industrial appearance of the shipping containers has been mitigated and conforming to the single-family residential appearance of the area surrounding the Property; and
• include a landscape plan with sight triangle depicting vegetative buffer sufficient for visual screening between open exterior balcony/deck area(s) and neighboring residences along the south property line (may include existing vegetation).
To mitigate concerns of neighbors regarding the potential use of the structure as a vacation rental, additional residence, or raucous party pad, the parties agreed to the following use restrictions:
• The accessory structure shall not be used as living quarters.
• The accessory structure shall not be rented, in whole or in part, for any purpose.
• The accessory structure shall not contain a kitchen.
• The accessory structure shall not be occupied or used for any purpose other than storage between the hours of 10:00 PM and 6:00 AM.
Finally, if the Board approves the tentative settlement agreement, the County will waive any accrued fines and costs in relation to the Code Enforcement case upon Mr. Traska’s compliance with agreed-upon conditions and modifications, and when all necessary inspections have been passed.
At the time of filing this agenda report, Mr. Traska had submitted the necessary request to revise his building permit. Upon review of the submittal, the Building Department requested that Mr. Traska submit (1) total electrical load calculations; (2) electrical riser to include wire size, number of conductors, type of raceway, and over current protection; (3) total square footage with area calculations; (4) outside railing detail; (5) new 2023 Florida energy calculations; and (6) new Florida product approvals for windows and doors.
The Planning and Development Department reviewed Mr. Traska’s architectural renderings and submittals, and provided the following comments:
“The location of a two-story stacked container storage in close proximity to the side yard setback line does not easily fit the neighborhood scale and presents challenges to the urban community as well as adjacent neighbor. The tall structure would benefit from a modern interpretation of the existing neighborhood vernacular in an effort to add animation and relief to the adjacent property as well as to soften the bold differences of materials.
The rendering relies heavily on the appearance of industrial materials and finishes in lieu of traditional forms and surfaces. The side elevation adjacent the property line should embrace features from the established neighborhood and residence as a subordinate accessory structure in an effort to be compatible with the fabric of the residential area and zoning. The elevations depicted in contrast appear to present the structure as a small commercial business with double one lite entry doors, large container doors and hardware, dark colored metal or applied fluted material walls covering most of the structure which retain much of the appearance of the original metal container. White residential style single hung style glazing, divided light doors and windows, are a contrast rather than addition to the theme of the presentation. More attention is encouraged addressing neighborhood proportions and buffering of the structure adjacent the existing neighbors home by use of massing, materials, textures and color to be compatible.”
During the drafting of the mediated tentative agreement, Mr. Traska requested a revision through his attorney. Specifically, Mr. Traska requested that language in the tentative agreement stating the structure shall not be occupied or used for any purpose other than storage between the hours of 10:00 PM and 6:00 AM be revised to remove the occupancy prohibition, allowing “occupancy of the accessory structure between the hours of 10:00 PM and 6:00 AM … as related to use as storage.” Given the concerns of neighbors that the structure might be used for a vacation rental or late night hangout, the Board may wish to consider directing a modification to the agreement to unequivocally clarify that storage is the only allowed use during the hours of 10:00 PM and 6:00 AM, and that no occupancy is permitted except for the storing of items or retrieval of stored items without unnecessary delay.
Board Action
After accepting public comment, the Board has three options:
(1) The Board may accept the tentative settlement agreement as submitted and direct staff to proceed to implement it by non-statutory development agreement.
(2) Modify the tentative settlement agreement and direct staff to proceed to implement it as modified by non-statutory development agreement if Mr. Traska accepts the modifications.
(3) Reject the tentative settlement agreement. If the Board rejects the tentative agreement, the Code Enforcement proceedings will no longer be abated. Mr. Traska will continue to accrue fines until he either unstacks the shipping containers and obtains an approved revision to his building permit in full compliance with the Code or returns the Property to its original configuration prior to construction (i.e., removes the containers). Because of FLUEDRA’s tolling provision, Mr. Traska has time remaining to file an appeal of the Code Enforcement Magistrate’s order should he choose to do so.
Attachments
1. Tentative Settlement Agreement
2. Property Survey
3. Traska Revised Building Plan Submittal
4. Traska Architectural Renderings Submittal
5. Traska Landscape Renderings Submittal
6. Traska Request for Relief Under the Florida Land Use and Environmental Dispute Resolution Act, Section 70.51, Florida Statutes
7. Citizen Written Comments
Clerk to the Board Instructions: Please return a memo of the Board’s action to the Planning and Development Department Director and the County Attorney.