April 11, Planning and Land Development Regulation Commission (PLDRC)

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1 Page 1 of 26 GROWTH AND RESOURCE MANAGEMENT DEPARTMENT PLANNING AND DEVELOPMENT SERVICES DIVISION CURRENT PLANNING ACTIVITY 123 W. Indiana Avenue, Room 202, DeLand, FL (386) PUBLIC HEARING: CASE NO: SUBJECT: LOCATION: APPLICANT/OWNER: STAFF: April 11, Planning and Land Development Regulation Commission (PLDRC) S Special exception to allow processing, packaging, storage, retail or wholesale sales of agricultural products not raised on the premises on Prime Agriculture (A-1) zoned property 3742 Lettuce Lane, New Smyrna Beach Timothy and Kim Rioux Susan Jackson, AICP, Senior Planning Manager I. SUMMARY OF REQUEST The applicant is requesting a special exception to allow for processing, packaging, storage, retail or wholesale sales of agricultural products not raised on the premises on Prime Agriculture (A-1) zoned property. The property is 9.94 acres, located on Lettuce Lane, in the Samsula community, near the City of New Smyrna Beach. The applicant operates a tree removal service and intends to use the property to park commercial trucks and equipment, as well as a transfer station for tree debris. Staff Recommendation: Forward to county council for final action with a recommendation of denial.

2 Page 2 of 26 II. SITE INFORMATION 1. Location: The property is located on the south side of Lettuce Lane, approximately 1000 feet west of its intersection with Samsula Drive North. 2. Parcel Number(s): Property Size: 9.94 acres 4. Council District: 3 5. Zoning: Prime Agriculture (A-1) 6. Future Land Use: Agricultural Resource (AR) 7. ECO Map: No 8. NRMA Overlay: No 9. Adjacent Zoning and Land Use: DIRECTION ZONING FUTURE LAND USE North: A-1 Agricultural Resource East: A-1 Agricultural Resource South: A-1 Agricultural Resource West: A-1 Agricultural Resource 10. Location Maps CURRENT USE Agriculture sod farm, Forested parcel Rural Residential, small farm operations Agriculture - pasture Residential mobile home, Forested Zoning Map Future Land Use Map

3 Page 3 of 26 III. BACKGROUND AND PREVIOUS ACTIONS The applicant owns and operates T & K Tree Service and performs tree trimming and removal for commercial and residential customers throughout Flagler, Volusia and Brevard Counties. The applicant has been utilizing the subject property to park his commercial vehicles and equipment, and temporarily store tree debris. The subject property is a 9.94-acre parcel, zoned A-1 (Prime Agriculture). It is located on Lettuce Lane, which is a county-maintained dirt road. The parcel is approximately 330 feet wide along the road, and approximately 1,300 feet deep extending southward from the road. The entire parcel is within the 100-year flood plain. It contains a swath of wetlands running roughly through the center of the parcel. In addition to the commercial tree operation, the property contains a small equestrian stable and riding area. These uses are clustered in the front 300 feet of the property near the road. The rear three-quarters of the property is vacant pasture. The tree service operation is located in an approximately 150 x 150-foot square section on the north east corner of the parcel. According to information submitted by the applicant, the vehicles being parked on site may include one (1) crane, one (1) bucket truck, one (1) chip truck and a chipper, one (1) 50- yard grapple truck and one (1) 25-yard grapple truck. Workers drive to the site in their own vehicles and leave the site in the business vehicles, with general hours of operation being 7:00 am to 7:00 pm. Some vehicle/equipment maintenance occurs on site. Large tree debris is brought onto the site and off-loaded in a pile near the roadway. It is then sorted, reloaded and transferred to various tree recycling facilities and landfills. It is unclear how often tree debris is dumped on the site. It is also unclear how long the tree debris remains on site before transferring to other facilities. It appears that some of the debris is removed through burning as evidenced by a burn pile photographed on site. The commercial tree operation, as described, is not permitted on the subject property in the A-1 zoning classification. The parking of the commercial vehicles constitutes a contractor storage yard, a commercial or quasi-industrial use. The dumping and storing of tree debris constitutes a landfill or off-site storage of land clearing debris/solid waste. The former is not a permitted or special exception use within the A-1 zoning classification. The latter may be allowed under special exception regulations; however, the minimum land area for this use is 20 acres.

4 Page 4 of 26 As a result, the property has been cited for code violations for a contractor s yard where not permitted beginning in April, As consistent with past practice, the defendant is provided the opportunity to resolve the problem or seek administrative relief before a fine or other action is taken. Thus, in response to a Notice of Violation and Request for Hearing for noncompliance, the applicant has submitted an application for a special exception to allow the processing, packaging, storage, retail or wholesale sales of agricultural products not raised on the premises. With modifications to the operations of the business, this special exception use most closely meets the applicant s needs. If approved it would legitimize the tree service business use on the property and bring it into compliance with zoning and development requirements. It should be noted that a Class-A Home Occupation Business Tax Receipt (BTR) was issued for the business in November, 2011 and is still in effect for this address. This type of BTR is limited to home office, or arts and handicraft uses only. Employees are not permitted to assemble on site, no additional vehicular traffic is to be generated, and the only equipment that is allowed on the premises is that common to a small business office. The home occupation cannot produce excessive noise, vibrations, odors, fumes, fire hazards, or light pollution. There can be no change in the outside appearance of the premises and no more than two vehicles associated with the home occupation may be kept on the premises. The activities occurring on site clearly violate the limitations of the issued BTR. Moreover, in February 2012, the existing mobile home that was registered for the home occupation was demolished. The home-based BTR should have been revoked at that time. IV. REVIEW CRITERIA AND ANALYSIS Special Exception Criteria - Under subsection (8) Reasons for denial, the commission may recommend denial of any application for a special exception, and the county council may deny the application for one or more of the following reasons: (a) It is inconsistent with the purpose or intent of this article. The purpose and intent of the A-1 zoning classification is to preserve valuable agricultural land for intensive agricultural uses, and to protect land best suited for agricultural uses from encroachment of incompatible land uses. The special exception use of processing, packaging, storage, retail or wholesale sales of agricultural products not raised on the premises allows farmers additional options to support on-going agricultural operations. An example of this use might be a grain elevator, where grain is procured from off-site, stored and resold to an end user. Another might be a farm stand offering produce, where some of the produce is grown at other locations. This particular use does not meet the true intent of this special exception. Storage of tree debris is more akin to storing solid waste or land clearing debris. These activities are regulated by the Florida Department of Environmental Protection and prohibited without proper licensing. If the applicant were to process the tree debris into firewood or mulch for retail sale, it would be more in-line with the intent of the use. Therefore, as currently operated, the use is inconsistent with the purpose of the special exception use.

5 Page 5 of 26 (b) It is inconsistent with any element of the comprehensive plan. The property has an Agricultural Resource future land use designation, which is defined as follows: This designation consists of lands suited for intensive cultivation, ranching, aquaculture, and timber farming. The criteria used to identify these areas includes the soil quality, existing or potential value of production, existing agricultural uses, parcel size, ownership patterns, and investment in farming. In order to protect the agricultural industry, it is important that uses incompatible with agriculture, and uses and facilities that support or encourage urban development are not allowed. In addition, to facilitate a diversification of land uses within AR areas, non-agricultural uses, such as agri-tourism, recreation, disposal and extractive uses may be allowed. However, to protect the viability of agriculture, such uses should be ancillary to the primary agricultural use of the property. Policy also speaks to diversification of uses in agricultural areas, however cautions that uses shall remain ancillary to the primary agricultural use of the property, shall not result in negative environmental impacts and shall not disrupt the rural character of an area. In this case, the tree service use can be considered a diversification of the primary agricultural use of the property, which is an equestrian riding stable and pasture land; however it is not ancillary to the primary use and therefore inconsistent with both the definition and the policy allowing diversification of uses. Further, it is arguable whether a tree removal service is an agricultural use. If in association with a silviculture operation, it would be considered harvesting and therefore agricultural. This particular operation serves residential and commercial customers in three counties. It is more akin to a heavy commercial/quasi-industrial use. As currently operating, this property serves as a parking area or contractor s storage yard for the fleet vehicles and equipment, and a dumping area for storing and sorting tree debris prior to being taken off-site to a landfill or processing facility. This is not the intent of the land use designation or the policies that support diversification of agricultural uses. Until 2004, the A-1 zoning classification allowed contractor s storage yards as a special exception use, however all associated equipment had to be stored in an enclosed building. It was found that the intensity of a contractor s storage yard introduced incompatible activities in agricultural areas. Thus, in the current zoning code this use is no longer included in the list of special exception uses as it was determined to undermine the purpose and intent of the agricultural zone. (c) It will adversely affect the public interest. It is in the public interest to support agricultural uses and to allow a measure of diversification in order that they may remain a viable occupation within Volusia County. It is equally important to protect agricultural lands from encroachment of incompatible uses that degrade the purpose and character of said lands.

6 Page 6 of 26 As discussed above, the tree service is more akin to a heavy commercial/quasi-industrial use. In relation to the requested special exception, it does not process, package, store or sell an agricultural product. Approval of this use on this property, as currently operated, allows the encroachment of a non-agricultural use into a sustainable agricultural area. (d) It does not meet the expressed requirements of the applicable special exception. The use does not meet the expressed requirements for the special exception. There is no processing, packaging, storage, or sales of agricultural products occurring on this site. The tree debris being dumped on site is in violation of state regulations as it is considered solid waste and required to be disposed of in a properly licensed landfill. Rather, the site is being used as a parking lot and storage yard for the business s vehicles and equipment. There is no actual agricultural component to the use as it is currently operating. (e) The applicant will not be able to meet all requirements imposed by federal, state or local governments, or by the county council. As currently operating, the tree service use does not meet the requirements of the requested special exception, nor does it meet state requirements for disposal of tree debris. If the special exception is approved, changes to business operations would be required in order for it to be able to meet all applicable requirements. (f) Notwithstanding the provisions of article XIV of the land development code [appendix A], it will generate undue traffic congestion. A basic transportation analysis was conducted by Traffic Engineering staff based on limited information provided by the applicant (see attached memorandum). It does not appear that significant traffic would be generated by this use to degrade level of service standards on nearby thoroughfare roads. The existing transportation network has adequate capacity to accommodate the additional trips associated with the proposed special exception. However, the tree service maintains several large trucks and heavy equipment that traverse Lettuce Lane on a daily basis. This road is a county-maintained dirt road. These heavy vehicles impact the roadway to a greater extent than normal vehicular traffic and cause accelerated degradation of roadway conditions. According to Volusia County s Road and Bridge Division, which is the agency responsible for road maintenance, Lettuce Lane would need to be paved to handle the number, frequency and weight of the tree service vehicles. (g) It will create a hazard or a public nuisance, or be dangerous to individuals or to the public. The storage of the tree debris on the site is a potential environmental hazard as well as a public nuisance. As stated above, tree debris is considered solid waste and is required to be disposed of in a licensed landfill. The unsightly nature of the debris pile and the noise of loading and unloading it is a nuisance to neighbors who are subjected to it on a regular basis. The regular burning of tree debris is also a public nuisance.

7 Page 7 of 26 (h) It will materially alter the character of surrounding neighborhoods or adversely affect the value of surrounding land, structures or buildings. The visual appearance of the non-agricultural use adversely affects the character of the surrounding area. Where the tree debris is unloaded is unkempt and unsightly. The debris pile is very near the road and there is no visual buffer to passerby traffic. There is also no visual buffer to the parked commercial vehicles and equipment. The unsightly appearance of this use may negatively impact the value of surrounding lands and structures. (i) It will adversely affect the natural environment, natural resources or scenic beauty, or cause excessive pollution. The area where this use is located is primarily sod farms and pastures. It is in the heart of the Samsula Local Plan area where the agricultural and rural residential characteristics of the area are to be protected from encroachment of adverse uses. Samsula Local Plan policy states that application to convert beyond the existing rural land use level designations to nonresidential use or increase beyond the existing rural residential density within the Samsula Rural Community shall be discouraged. Policy states that land uses in the vicinity of the Samsula Community should not have an adverse effect on the existing character of the community. The tree service use, although small in comparison to the size of the property it resides on, is highly visible and introduces a commercial/industrial use into an otherwise pastoral area. The scenic beauty of the Samsula agricultural community is adversely impacted by the use. Should the special exception be approved, conditions that mitigate its impact in the neighborhood should be employed. Additionally, the site contains wetlands, located roughly in the middle of the parcel. According to the Land Development Code wetland regulations, bona-fide agriculture uses do not require permitting, however if this use is not a bona-fide agricultural endeavor, it will require a wetland alteration permit for any alterations to the wetlands or wetland buffers. V. STAFF RECOMMENDATION Staff recommends that the PLDRC forward this special exception for processing, packaging, storage, retail or wholesale sales of agricultural products not raised on the premises on Prime Agriculture (A-1) zoned property, to the county council for final action with a recommendation of denial. However, if the PLDRC determines that the requested special exception meets the criteria for approval, staff provides the following conditions of approval for consideration: 1. The special exception use must produce and sell an agricultural product, such as firewood, mulch, or other product derived from the tree debris brought on to the site. All other debris is subject to the Florida Department of Environmental Protection requirements and shall be processed in accordance section Florida Administrative Code.

8 Page 8 of The special exception is limited to maintaining the following vehicles on the site. No other vehicles in association with the tree service business shall be parked, or otherwise stored on site. 1 crane 1 bucket truck 1 chip truck and a chipper 1 50-yard grapple truck 1 25-yard grapple truck 3. Storage of vehicles, all equipment associated with the tree service use, and all activities associated with the tree service use, shall be within an enclosure. This enclosure may be a building or an opaque fenced area or a combination of the two. Building standards shall be in accordance with the A-1 zoning classification. The height of the fence shall be a minimum of eight (8) feet. 4. In accordance with Division 3 of the Land Development Code, a site plan, detailing the site configuration, enclosure(s), buffers, landscaping, driveway improvements, retention, and all associated improvements shall be required to be submitted within 90 days of approval of the special exception. All site improvements shall be completed within 180 days of approval of the site plan and issuance of the associated development order. 5. Buffers and landscaping shall be provided in accordance with the Zoning Code, section , Table 1 Landscape Buffer Requirements: Buffer type 3a shall be required adjacent to the abutting property on the east: 10 feet in width and planted with 4 group A, 4 group B, 27 group C or D per 100 linear feet or fraction thereof, plus a continuous 6-foot visual screen of landscape planting hedge from group C and D or the plant list, a brick or masonry wall, wooden fence, or landscaped earth berm, or combination of the preceding. Buffer type 23a shall be required adjacent to Lettuce Lane: 15 feet in width and planted with 4 group A, 4 group B and 27 group C or D per 100 linear feet, or fraction thereof. 6. Roadway improvements shall be made to Lettuce Lane in accordance with Volusia County Road and Bridge recommendations. These improvements may include paving from the driveway entrance eastward to Samsula Drive. Final determination of the scope of improvements shall be made during the site plan approval process. 7. The hours of operation shall be limited to 7:00 a.m. to 7:00 p.m., Monday through Friday. There shall be no tree service business use on the property on Saturdays, Sundays or holidays.

9 Page 9 of 26 VI. ATTACHMENTS Survey Conceptual Plan Written Explanation Traffic Engineering Comments Environmental Comments Notice of Violation Site Photos Maps VII. AUTHORITY AND PROCEDURE Pursuant to Section , the County Council shall hold a public hearing after due public notice on all recommendations from the commission. It may accept, reject, modify, return, or seek additional information on those recommendations. No approval of a special exception application shall be made unless, upon motion, four members of the county council concur. The county council will thereafter forward its decision to the applicant. Any new information to be presented at the planning and land development regulation commission for any application will be grounds to continue an application to the next planning and land development regulation commission. Applicants shall inform and provide staff with the new information prior to the planning and land development regulation commission. Any new information to be presented at the county council meeting that was not previously presented to the planning and land development regulation commission for any application will be grounds to return an application to the planning and land development regulation commission for further review. Applicants shall inform and provide staff with the new information prior to the council meeting.

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16 Page 16 of 26 Inter-Office Memorandum TO: Susan Jackson, Planning Manager DATE: March 15, 2017 FROM: Keith Abrahamson, Environmental Specialist III SUBJECT: Planning & Land Development Regulation Commission meeting for Date: April 11, 2017 Parcel #: Case #: S Environmental Permitting (EP) has reviewed the application for this project. There are wetlands on this parcel, however the property has an agriculture exemption through the property appraiser s office. According to the Land Development Code wetland ordinance, bona-fide agriculture properties do not require permitting. The property must follow Best Management Practices through the state. EP has no objection to this request. However, if the project is not considered a bona-fide agricultural endeavor, it will require a wetland alteration permit for any alterations to the wetland or wetland buffer.

17 Page 17 of 26 Growth and Resource Management Department Zoning Compliance 123 West Indiana Avenue, Room 205 DeLand, Florida NOTICE OF VIOLATION April 12, 2016 Complaint No: Rioux Timothy Michael & Kim 720 Oliver Dr New Smyrna Beach FL You are hereby notified that you are in violation of: CODE OF ORDINANCES, COUNTY OF VOLUSIA, CHAPTER 72 ARTICLE II DIVISION 7, SECTION A-1 Prime Agriculture DESCRIPTION: Contractor s yard where not permitted. ACTION REQUIRED: Cease using property for the outdoor repair, maintenance or storage of contractor s vehicles, equipment or materials. This violation is occurring on the following property: 3748 Lettuce Ln, New Smyrna Beach Parcel No Legal Description: W 1/2 OF TRACT 3 BLK 2 MB 4 PG 44 PER OR 5492 PG 4381 If this violation is not corrected within 10 days from receipt of this notice then the violation will be forwarded to the Volusia County Code Enforcement Board for hearing. The Code Enforcement Board has the power to levy a fine of up to $1, per day against your real and/or personal property for each day the violation continues beyond the date set by the board for compliance. If the violation is corrected and then recurs or if the violation is not corrected by the time specified for correction, the case may be presented to the enforcement board even if the violation has been corrected prior to the board hearing. A fine of $5, per day for repeat violations may be imposed or a one time fine not to exceed $15, may be imposed. Debbie Zechnowitz Zoning Compliance Officer drivera@volusia.org DeLand (386) Daytona Beach (386) New Smyrna Beach (386) Ext CERTIFIED MAIL RECEIPT NO

18 Page 18 of 26 View of property from Lettuce Lane. Tree debris pile near road. View from parking area, looking toward Lettuce Lane. Tree debris pile on 3/8/17. View from Lettuce Lane, looking from northwest corner of property.

19 Page 19 of 26 Employee and truck/equipment parking area. Tree debris pile on 3/15/2017. Tree debris pile on 3/15/2017.

20 Page 20 of 26 Second debris pile, 3/15/2017. Third debris pile, 3/15/2017. Burn area, 3/15/2017.

21 Page 21 of 26 View of Lettuce Lane looking eastward from property driveway. View of Lettuce Lane looking westward from property driveway.

22 CR 415 N CR 4095 (SAMSULA DR N) Page 22 of 26 REQUEST AREA LOCATION 1 " = 1000' SPECIAL EXCEPTION I CASE NUMBER S

23 Page 23 of 26 CR 4095 (SAMSULA DR N) LETTUCE LN AERIAL "= 400' REQUEST AREA SPECIAL EXCEPTION I CASE NUMBER S

24 Page 24 of 26 CR 4095 (SAMSULA DR N) LETTUCE LN A-1 ZONING CLASSIFICATION AGRICULTURAL I 1"= 400' VARIANCE CASE NUMBER S REQUEST AREA

25 Page 25 of 26 CR 4095 (SAMSULA DR N) LETTUCE LN AR FUTURE LAND USE AGRICULTURE RESOURCE 1"= 400' SPECIAL EXCEPTION I CASE NUMBER REQUEST AREA S

26 Page 26 of 26 CR 4095 (SAMSULA DR N) LETTUCE LN ECO/NRMA ECO NRMA 1"= 400' SPECIAL EXCEPTION CASE NUMBER REQUEST AREA S