Subject:
Title
Request for a waiver of Section 62-102(c), Unpaved Road Agreements (District 1)
Applicant: Larry Stewart
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Fiscal Impact:
Indeterminate.
Dept/Office:
County Attorney’s Office / Planning and Development
Requested Action:
Recommendation
Consider the applicant’s request for waivers to Section 62-102(c), Brevard County Code of Ordinances, to allow construction of a house on property located at Parcel ID 20G-35-01-01-3-3.01 (Tax Account No. 2004427) without meeting any of the following Code requirements: (1) constructing an unpaved road within County right of way; (2) providing for the maintenance of said road; and (3) dedicating or deeding additional easements to the County on each side of the existing 30-foot right of way to meet the minimum right of way width requirement of 50 feet. Significantly, the Board of County Commissioners considered this request in regular session on October 26, 2021, and tabled the matter to allow the applicant to provide County staff with the information necessary to process such a waiver. The applicant has refused to provide the necessary information. If the Board denies the requested waivers, the Board may wish to direct the County Attorney to prepare a resolution setting forth findings of fact upon which the decision is based.
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Summary Explanation and Background:
Section 62-102 stipulates that no building permit for a single-family dwelling will be issued by the County unless the property on which the dwelling is to be located abuts a public road dedicated and accepted for maintenance by the County. Section 62-102(c) - Unpaved Road Agreements, provides that the County and a property owner whose property abuts a public right of way that is not maintained by the County may enter into an agreement to allow the issuance of a permit to construct an unpaved road within the right of way and obtain a permit for a single-family residence if certain criteria are met. Among those criteria are the following:
(1) Unpaved road agreements are limited to existing County rights of way of at least 50 feet in width. If the right of way is less than 50 feet wide, additional easements dedicated or deeded to the County and accepted by the County for maintenance must be obtained on each side of the right of way to allow room for drainage and, if applicable, sidewalks.
(2) Every participating property owner is responsible for all costs related to the construction of the unpaved roadway including survey, design, initial signage and installation, engineering, permitting and construction for the length of roadway covered by the agreement. The roadway shall be designed and stabilized to a minimum of between LBR 40 and 60 and shall be reviewed and inspected by the County for approval prior to the issuance of a building permit.
(3) To defer the cost of County maintenance, unpaved road agreements shall stipulate a fixed amount that must be paid prior to execution of the agreement. This amount is determined by the Public Works Department and adopted by resolution in an amount necessary to reimburse the County for maintenance costs.
(4) Typically, the unpaved road agreement constitutes the property owner’s consent to a special assessment to pay a proportionate share of the County’s cost to pave the road once 50 percent of the owners of lots abutting the unpaved road have obtained building permits. However, where the subject roadway on which the agreement applies intersects with an existing County-maintained dirt road (as opposed to a paved road), and where all buildable lots abutting the subject roadway are two and one-half acres or larger in area, the property owner would not be required to participate in the establishment of a special assessment project for paving of the road.
Section 62-102(d) provides for waivers which might be warranted where “undue hardship may result from strict compliance with subsection (c)….” Section 62-102(d) provides that a waiver applicant “shall submit a written request” and requests “must be submitted prior to or in conjunction with the application for an unpaved road.” Among other things, it further provides “the [C]ounty may attach such conditions to the waiver to assure that the waiver will comply with the intent and purpose of this section.”
The applicant is the owner of a 4.9-acre parcel of property with a Future Land Use of Residential 1 and AU zoning, both of which generally permit the erection of a single-family dwelling as a use of the property. The property was part of a larger parcel which was divided into two adjoining parcels with the applicant’s purchase of the property on December 3, 2021. The property is located on a 30-foot wide “paper right of way” (a platted right of way that has never been improved with a proper road or maintained by the County), 628 feet east of said right of way’s intersection with Dixie Way, a dirt road that the County has maintained since 1976.
Aerial photos from 2014 to current show a grassy trail through the right of way. At some point, an unknown party placed asphalt millings in the unmaintained right of way without a permit. Asphalt millings are not an FDOT or County approved base material, and do not meet the Code requirements for a paved or unpaved road. Property to the east of the subject property is also undeveloped and could potentially seek access through this unmaintained right of way in the future. The properties west of the subject property have frontage on Dixie Way and were developed with single family homes in 1994 and 2005, respectively.
Since December 3, 2020, a year to the day before the applicant purchased the property, he had been in contact with County staff to determine whether a single-family residence could be constructed on the property. Staff advised the applicant that his development plans required an unpaved road agreement as provided in Section 62-102(c) of the County Code. Additionally, he would need to either (1) obtain an additional 20 feet right of way to meet Section 62-102(c)’s requirement that unpaved road agreements “be limited to existing County rights-of-way of at least 50 feet in width” or (2) obtain a waiver from the road width rule. The applicant wishes a waiver from the requirement for an unpaved road agreement entirely. It should be noted that because the subject unmaintained 30-foot right of way abuts an existing County-maintained dirt road (Dixie Way), and all buildable lots abutting the right of way are two and one-half acres or larger in area, the applicant would not be required to participate in the establishment of a special assessment project for paving of the right of way.
Before purchasing the property (i.e., while the property was under contract), the applicant applied for a waiver. The “undue hardship” recited in the applicant’s waiver request was his alleged financial inability “to construct a road of minimum design standards just to access my property.”
County staff did not “concur that undue hardship was placed on the applicant,” that “[t]he particular physical condition, shape or topography of the specific property involved causes an undue hardship to the applicant if the strict letter of [Section 62-102(c)] is carried out,” that [t]he conditions upon which [the] request for waiver are based, are peculiar to the property for which the waiver is sought and are not generally applicable to other property and do not result from the actions of the applicant,” or that the granting of the waiver “serves the public interest,” each of which is a requirement for the administrative approval of a waiver under Section 62-102(d). Therefore, staff requested that the merits of the applicant’s waiver request be evaluated by the Board of County Commissioners.
On October 26, 2021, at a public hearing on his waiver request, the Board of County Commissioners tabled consideration of the matter to allow the applicant an opportunity to show “how the road can be constructed within the 30[-]foot right-of-way, with additional easements of the right-of-way including necessary improvements, road drainage, and utilities; and this will provide staff the administrative authority, at that time, to review and approve the plans, if appropriate, including a waiver of engineering standards.”
On December 3, 2021, the applicant purchased the property, fully aware of what would be required for staff to review and act upon the waiver request. In the intervening months and years, the applicant has adamantly refused to provide the necessary information for staff to administratively review and approve the requested waivers. For example, on June 20, 2023, the County Attorney proposed to the applicant’s attorney that County staff would consider very relaxed and flexible design standards if the applicant would submit something meeting the requirements of the Code and the prior Board direction:
“As we previously discussed, the County will consider road design guidelines that will provide a great degree of flexibility for the designer to exercise engineering judgment, and which can likely be met within the constrained 30' right-of-way, though much will depend on the drainage design. I previously sent to you the Guidelines for Geometric Design of Low-Volume Roads. Since then, I obtained a copy of the Guidelines for Geometric Design of Very Low-Volume Roads, which I have attached hereto. If [the applicant] obtains engineering showing a design that meets the reduced design criteria in these guidelines, County staff will waive applicable technical standards where judgment indicates that this can be accomplished without substantially affecting safety or drainage.”
The applicant again refused. The applicant instead sued the County in federal court, where his complaint was twice dismissed for several reasons, including lack of ripeness. The second time the court dismissed the case, it denied the applicant’s request for leave to file an amended complaint, though the case was dismissed without prejudice (meaning that the applicant can potentially file a new lawsuit).
With the most recent dismissal, the applicant’s attorney requested “to call our waiver application up for a hearing in front of the Board,” or, “[a]lternatively, please advise if the Board of County Commissioners plans on not hearing the application for a waiver.” The attorney made clear that the applicant would not submit engineering plans or other pertinent information in support of the waiver request.
Attachments:
1. October 26, 2021 Board of County Commissioners Agenda Report Item J.1., “Waiver of Section 62-102(c), Re: Unpaved Road Agreements to Allow Access Via Paper Right-of-Way to Dixie Way (District 1),” including:
a. Land Development Waiver Application
b. Staff Report (analysis of Waiver Application and Waiver Criteria)
2. October 27, 2021 Clerk’s Memorandum
3. June 6, 2022 correspondence from County Attorney to applicant’s attorney with attachments
4. March 6, 2025, Order dismissing applicant’s federal lawsuit against County
5. March 10, 2025 to March 20, 2025 email correspondences between applicant’s attorney and County Attorney
Clerk to the Board Instructions:
Please provide a copy of the Clerk’s Memorandum to the County Attorney’s Office and the Planning and Development Department Director.