Us vs. The Man

Here is the full transcript of our much revised argument to the county commissioners for why they should grant our waiver request.

To the Brevard County Board of Commissioners:

In February of 2006, we purchased a 7.59 acre piece of property on north Merritt Island. Since then we have been working within the county and state regulations with the intent to build our dream house on that property. We have spent over a year and $17,322.28 toward that goal. We are requesting a waiver to the Brevard County Code of Ordinances Section 62-102 (b), which states that in order to obtain a building permit, the property must abut a county maintained road.

Our first priority was to determine how best to use the property due to the existence of wetlands over the majority of it. We have been working with an environmental company for the past year to get a wetland permit to allow us to build on the property. This was finally accomplished at the end of March of 2007. In order to mitigate the .24 acres of wetland impacts we had to dedicate 6.86 acres of our original 7.59 acres as a permanent conservation easement. In addition, we are required to remove all of the invasive Brazilian Peppers that are growing on our property as a result of the wetland being previously disturbed. Removal of the invasive vegetation will keep it from invading the surrounding healthy wetlands. Developing our property will actually be beneficial to the environment.

The real problems began when we had to determine legal access to the property. Our property abuts a fifty-foot wide public access right-of-way. This right of way is an unimproved dirt road that has been used to access our property and four others from around 1969 to the present day. It is cleared and has a drivable surface. Three of the other properties abutting Jenkins Lane have already been built upon, and two of them use it as their sole physical access. Since the right of way is not a county maintained road, in order to get a building permit we had to enter into an Unpaved Road Agreement with the county. Under this agreement we would design, engineer, and build the dirt road up to county standards at our own expense and then pay an unspecified amount of money for maintenance of it. After its completion the county would take over maintenance of the road.

We began the Unpaved Road Agreement process late last spring and spent $8788.28 obtaining surveys, soil bore samples, and engineering drawings of the road. It wasn’t until after the design had been reviewed by county engineers and the SJRWMD and sent back to our engineer for the second time that we discovered that it was not possible to fit the road within the existing right-of-way due to the high water table relative to the road. Because of the high water table the road surface would have to be raised nearly a foot above East Crisafulli Road, which it adjoins. This is an increase of almost two feet in elevation for some parts of the road. To retain the storm water runoff, there would be drainage swales along its entire length on both sides. The maximum slope on the back side of the drainage swales is mandated by the SJRWMD and cannot be exceeded. Because of these requirements, the proposed project sprawled beyond the bounds of the fifty-foot wide right-of-way to eighty feet of width. We were told we needed to acquire an additional fifteen feet of private property on either side of the right-of-way to accommodate the road and its associated swales.

This was a major problem. The right-of-way passes narrowly between two existing homes. Even if the property owners would agree to give up some of their land for the project (they would not), there would still be problems. The edge of the drainage swale on one side would extend to within approximately five feet of the foundation of one of the homes. The new road would also cause significant surface water impacts and additional wetland impacts that there is no way to mitigate. Our property has already been dedicated as a conservation easement in order to mitigate the building of our home. Mitigation for wetlands on Merritt Island must occur on the island, where there is no mitigation bank to draw from. In short, the project is not feasible as designed.

The county land development engineer told us that he thought the road would be technically possible if it were reengineered somehow to fit inside the allotted 50 feet. He said that it could potentially be done if the entire road was built up using large culverts and retaining walls along its entire length but even he agreed that a redesign of that magnitude would push the cost of the dirt road well over a quarter of a million dollars, assuming it was possible at all. Regardless of the fact that it might be physically possible to build such a road, we feel that it is simply not right to force a single property owner to bear that kind of burden in order to build a single-family home. Due to the environmental issues that affect our property, even though it is large we can only build one house on it. It cannot be subdivided, and therefore we have no opportunity to defray any of the cost involved in constructing such a road.

The alternative suggestion from the land development department was to have the county vacate the access entirely. We pursued this course of action for several months only to have it turn out as another dead end. Since the right-of-way was platted with the property across from ours, only that property owner can petition the county to vacate the land. They have tried to do so in the past only to run into access issues, which still exist today. The Land Development department of the county requires that a plan be in place to ensure that all properties that take access from the right of way have access to their property before the land is vacated. This plan must be approved by the Planning and Zoning office. However, the Planning and Zoning department will only entertain the application for review after the county commission board has vacated the land. You can see the problem there.

In the end, vacating the land would be problematic at best. If the county were to vacate the right-of-way, it would go back to the landowner that owns the property it was originally platted with. If the landowners would agree to split the land down the middle to create two 25-foot wide access strips, these could be used as flag stems for their property and ours. Easement could be provided to the property at the end of the road over one of those two strips. Because only one property can have easement over a flag stem, we run out of options for one of the properties fronting the county maintained road. They have legal access from the county maintained road, but since their physical access is from Jenkins Lane they will not agree to the vacating unless they are granted irrevocable easement over Jenkins Lane. This is precisely what caused the last vacating attempt in 2004 to be unsuccessful. These homeowners came to the meeting and protested because they were afraid that they would lose access to their homes via Jenkins Lane. These problems only take into account current property uses. The 7.59 acre property on the west side of the right of way and the 26+ acre parcel at the end of the road could be subdivided in the future, creating even more access problems. Future land use rights would easily be enough to preclude any possibility of vacating being approved.

So, we are at an impasse. We hold in our possession wetland permits from the Florida Department of Environmental Protection and the Army Corps of Engineers to build our proposed home. All that stands in our way is this access issue. The only reasonable solution is for the county to grant us a waiver to the section of the code that requires the property to abut a county maintained road. We have tried to comply with all county regulations and explore the other options given to us by members of the county staff. As outlined above, each alternative solution has either run into huge obstacles or is simply not possible. In our opinion, our situation is unique enough to warrant this waiver. While unimproved right-of-ways are not uncommon in this county, the bevy of environmental issues surrounding this right of way and our property, the large size of the properties involved, and the fact that three of the five properties have already been developed make this situation different from the rest.

Ultimately, if we were to be granted this waiver, all parties stand to benefit. The county and state would get a nice piece of environmentally protected land, removal of nuisance plant life and the revenue generated by a newly developed property. The property owners with existing homes on the right of way would be able to continue using the right-of-way to enjoy uninterrupted access their homes. We would be permitted to build our new home and be able to live peacefully out among nature. A waiver would also maintain all of the land use rights of the other properties and retain the potential to develop multiple properties in the future if the large parcels are subdivided for development.

We do not believe that the original intent of the Unpaved Road Agreement was ever to force one property owner to shoulder the burden of the entire cost of a public road project allowing abutting property owners to enjoy freely at no cost to them. In a conventional situation, all of the properties would be developed around the same time and more than one property owner would participate in the project. Since three of the five property owners on Jenkins Lane have already been permitted to build, there is no motivation for them to participate in any such process, making this a unique situation. The environmental issues only push it further into impossibility. The denial of this request would effectively condemn our property from any practical use and would constitute a “regulatory taking” of our land. So, we are asking you to evaluate this situation individually, for what it is, and to do the right thing by granting us this waiver. Thank you.

What do you think?