CITY COUNCIL AGENDA ITEM
Memo Date: September 21, 2021
Agenda Date: September 28, 2021
Prepared By: Alix Bernard, Interim Planning and Zoning Manager
Through: Charlene Neuterman, Interim Community Services Director
Stockton Whitten, City Manager
Requested Action:
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Approve a Settlement Implementation Agreement between Beachline Partners, LLC and the City of Cocoa including a preliminary site plan, amenities and amenities schedule, construction timeline, utilities requirements and other development matters for a residential subdivision, commonly known as the former “Barrera Shores” or “Silvestri Property”, to implement that Stipulated Settlement Agreement, made and entered into December 11, 2007 and recorded in the Brevard County Official Records Book 5837, Page 2226: Parcel #: 24-35-10-00-502; To the extent necessary, authorize the City Manager and City Attorney to complete any outstanding technical issues and record the Agreement
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BACKGROUND:
AT THE TIME OF PUBLISHING THIS AGENDA ITEM, SEVERAL TECHNICAL PROVISIONS OF THE PROPOSED SETTLEMENT IMPLEMENTATION AGREEMENT AND THE PRELIMINARY SITE PLAN WERE STILL BEING WORKED OUT BETWEEN THE DEVELOPER AND CITY. ADDITIONAL REVISIONS TO THE AGREEMENT AND PRELIMINARY SITE PLAN MAY BE REQUIRED.
IN THE EVENT THAT ADDITIONAL TECHNICAL WORK NEEDS TO BE COMPLETED TO COMPLETE THE DRAFT AGREEMENT AND PRELIMINARY SITE PLAN AFTER COUNCIL’S CONSIDERATION, STAFF IS REQUESTING THAT THE CITY MANAGER AND CITY ATTORNEY BE AUTHORIZED TO COMPLETE, EXECUTE AND RECORD THE FINAL AGREEMENT SUBJECT TO WHATEVER DIRECTION IS PROVIDED BY COUNCIL AT THE MEETING.
The subject property comprises approximately 212.10 acres at the southeast corner of State Road 528 and Interstate 95 and was part of a project formerly known as the Barrera Shores. The property is subject to a Preceding Development Agreement, dated August 24, 2004 between the City of Cocoa and Barrera Shores, LLC.
In addition, the property is also subject to a Stipulated Settlement Agreement entered into in Brevard County v. City of Cocoa, Case No. 05-2005-018141, which was recorded on January 9, 2008 in Official Record Book 5837, Page 2226 of Brevard County, Florida. The Stipulated Settlement Agreement emanated from several lawsuits filed against the City when the property was annexed. The City prevailed in those lawsuits including the annexation appeal that went before the 5th District Court of Appeal. However, a settlement agreement was entered between the County, City and Developer when the County agreed not to appeal the case to the Florida Supreme Court.
The Developer has purchased the property and seeks to construct a low-density residential subdivision (approx. 418 units) on the Property consistent with the terms and conditions of the Preceding Development Agreement and the Stipulated Settlement Agreement and as more specifically required by this Settlement Implementation Agreement.
Project description
The proposed project will entail the development of approximately 418 single-family residential lots and homes with a minimum living area under air of one thousand five hundred (1,500) square feet and an average living area under air of one thousand eight hundred (1,800) square feet. All streets will be developed as private roadways to be owned and maintained by the developer/home owners association. The project will include the creation of private recreational common area green space and amenities. The Project will be required to have a homeowner’s association, which will be responsible for maintaining the common areas in perpetuity.
Elements of the Development Agreement
Land Use Designations
The current Future Land Use designation on the property is Very Low Density Residential with several areas subject to a Conservation overlay designation. However the property does not have a City zoning designation. Therefore, in furtherance of compliance with the City’s Comprehensive Plan, the Developer agrees to seek a City zoning designation for the Property of PUD, Planned Unit Development, which is consistent with the very low-density residential Future Land Use Map designation. Within one hundred eighty (180) days of the Effective Date, unless an extension is granted by the City Manager for good cause, the Developer agrees to submit a complete rezoning application with the City to request approval of a PUD zoning designation.
If the PUD application is denied by the City Council, the Developer will be required to submit a different rezoning application consistent with the very-low density residential Future Land Use Map designation until the City Council approves an acceptable City zoning designation for the Property. If a different zoning district is approved, the Developer acknowledges that a modification to this Agreement may be required to comply with the approved district’s dimensional and/or open space requirements.
Ingress/Egress Points
Pursuant to the Stipulated Settlement Agreement, the Project shall have two public road access points. Developer acknowledges that the Stipulated Settlement Agreement requires the developer to coordinate with Brevard County certain transportation improvements at Friday Road and James Road. The Developer agrees to discuss and coordinate said improvements with the County in conjunction with Developer’s application for Final Plans approval. Developer shall keep the City fully and timely updated regarding any and transportation discussions with, or directives imposed by, Brevard County and/or FDOT. Developer further acknowledges and agrees that Paragraph 7 of the Stipulated Settlement Agreement states that “All traffic calming devices along James Road shall be constructed and completed following land clearing(of the Property) but prior to any further construction or site work being completed (on the Property)” The City shall not be responsible or liable in any way whatsoever for any permitting or construction delays experienced by Developer resulting from Developer’s failure to comply with the transportation improvement requirements set forth in the Stipulated Settlement Agreement.
Preliminary Site Plan
The Project shall be substantially developed in accordance with the preliminary site plan attached to the Agreement (“Preliminary Site Plan”). The Preliminary Site Plan is intended to be the general blueprint which details key aspects of the future physical development of the Property. The Preliminary Site Plan shall also serve as a necessary guide for future permit applications and permitting necessary to complete the construction of the Project. (Exhibit “B”)
Final Plans
Developer will be required to submit an application for, and obtain the City’s approval of, a final subdivision plat, final site plan and final engineering plans (“Final Plans”) consistent with the Preliminary Site Plan and in compliance with the City Code and the amenities schedule required by this Agreement.
The Developer acknowledges and agrees that the Preliminary Site Plan was not created with specific surveyed dimensions and that during the Final Plans process such dimensions shall be surveyed, duly engineered, and provided to the City for consideration under applicable City Codes.
The Preliminary Site Plan shall be subject to reasonable adjustments at the Final Plans phase in order to bring the Project into full compliance with the City Code, and as a result, the exact location, layout and dimensions of the lots, common areas, buildings, landscaping, entrances, utilities, parking and other site improvements may vary slightly between Preliminary Site Plan approval and approval of the Final Plans.
Further, additional lots greater than the number of lots depicted on the Preliminary Site Plan may be approved at the City’s discretion, provided the additional lots do not reduce the proposed amount of open space and recreational areas depicted on the Preliminary Site Plan. These changes shall be allowed as long as the changes are consistent with the development standards noted in this Agreement and preserve the general character of the development shown on the Preliminary Site Plan. The City will not unreasonably withhold approval of the Final Plans and amenities schedule.
Public Utilities
Pursuant to Section 4.8 of the Preceding Development Agreement, the Developer has elected not to design, permit and construct the extension of the water, sewer and reclaimed utilities to the Property (“Utilities”). This election is similar to the Brightline Project to the north. Therefore, the City will design, permit and construct the extension of the Utilities as determined and deemed appropriate by the City. The Utilities details are complicated and are dependent on various contingencies and need to be coordinated with the Brightline Project to the north which was preliminarily previously approved by the City Council by Settlement Implementation Agreement. At the time of this Agenda Item, the Utilities provisions set forth in Section 7 of the Agreement were still being worked on by the parties. Council should reference the draft Agreement for details.
The Developer shall be responsible for the design, permitting and construction of all on-site utility infrastructure required to serve the Property including, but not limited to water, sewer, reclaimed stormwater pipes, sewer lift stations and pumps, electric lines and equipment, cable lines and equipment, phone lines and equipment, gas lines and equipment and other utility pipes, lines and equipment. Should City utility policy require that certain on-site water, sewer, reclaimed or stormwater utility infrastructure be conveyed to the City upon completion by the Developer, said conveyance of any such infrastructure shall be by written bill of sale along with any warranties and maintenance bonds or letters of credit.
Amenities
The Developer will be required to construct amenities At the time of this Agenda Item, the Amenities provision of the Agreement was substantially complete, but some of the language in the Agreement had not been fully accepted by the Developer. The draft states that the following amenities will be provided:
(1) Community clubhouse with a feature pool, open space area with a community pavilion (picnic tables and grills) along with a state-of-the-art modern tot-lot and playground. The City prefers that the tot-lot and playground be adequately covered from sun exposure by a playground UV rated canopy and shade trees and that the Developer shall seriously evaluate and consider providing such covering when the amenities schedule is approved during Final Plans approval.
(2) Dog park with deluxe dog park amenities including dog play equipment, leash post, clean-up waste station, trash receptacle, pet drinking fountain, and benches.
(3) Park area with passive park amenities and benches including open play areas, children’s play apparatus, group picnic areas, covered pavilions and barbecue stations. The City prefers that the playground and bench areas be adequately covered from sun exposure by a UV rated playground or other canopy and shade trees and that the Developer shall seriously evaluate and consider providing such covering when the amenities program and schedule is approved during Final Plans approval.
(5) Connected multipurpose walking path/nature trail throughout the community that connects to all recreational common open spaces including the park area, dog park and community clubhouse area.
(6) A streetscape design deemed acceptable by the City, which emphasizes sidewalks, connectivity within the community, tree-lined streets, and decorative street lights to add appeal and security and decorative signage.
(7) Decorative and landscaped entrance features to the Project deemed acceptable to the City which may include a restricted gated entry feature.
(8) The City prefers that the residential driveways shall be constructed of stone or brick pavers, or stamped and stained concrete. The Developer shall seriously evaluate and consider providing such driveways during the approval of Final Plans.
(9) All utilities constructed on the Property including, but not limited to, electric, water, sewer, reclaimed water, cable, phone, fiber optics, natural gas and other similar kinds of utilities to service the Property shall be constructed underground unless otherwise necessary to be above ground and approved by the City. Each lot and all common landscaped areas shall be equipped with in-ground reclaimed water irrigation systems to maximize the use of the City’s reclaimed water service.
(10) The Project shall incorporate the use of energy efficient lighting systems, insulation and ENERGY STAR rated windows, low-flow water fixtures, modern heat pumps, energy efficient HVAC systems, and optional roof top solar panels.
Developer may also propose additional amenities for the City’s consideration and approval. All Project amenities and enhancements shall be completed and finally accepted by the City in accordance with the written amenities construction schedule approved by the City in conjunction with the approval of the Final Plans. Upon approval, the written amenities construction schedule shall automatically be deemed incorporated within and made a part of this Agreement. All Project amenities and enhancements shall be maintained in perpetuity by the homeowner’s association required to be created by this Agreement.
Building Elevations and Floorplans
As condition of approval of the Final Plans, the Developer shall submit to the City for final approval building elevations and related floor plans for the proposed homes and community clubhouse to be constructed on the Property. Upon approval by the City, the building elevations and related floor plans shall be deemed incorporated herein by this reference and said buildings shall be constructed substantially in accordance with the approved building elevations and floor plans. Further, other aspects of the building façade and roof lines, color scheme, and architectural features depicted on the building may have to be adjusted during the City’s final review and administrative approval procedures to issue a building permit. The design of the homes and community clubhouse shall create one aesthetically pleasing and unified Project.
Homeowner’s Association
In conjunction with the approval of the final subdivision for the Project, the Developer shall create a mandatory homeowner’s association to govern the Project in accordance with Chapter 720, Florida Statutes. The association shall also be governed by the covenants and restrictions created and recorded against the Property by the Developer as required by this Agreement. A copy of the association’s articles of incorporation, by-laws and recorded covenants and restrictions shall be provided to the City prior to the approval of the final subdivision. The homeowner’s association shall be responsible for the perpetual maintenance and operation of all common areas and amenities constructed for the Project, shall govern the Project in accordance with the requirements of Florida law including the recorded covenants and restrictions and by-laws of the association, have the power to levy assessments and collect HOA fees, which are used to pay for the maintenance of the community common areas and any other designated areas that are detailed in the covenants and deeds applicable to the Project.
Model Homes
Subject to the terms stated in the Agreement, the City agrees to allow the Developer or Developer’s chosen homebuilder(s) (“Builder”) for the Project to construct both a sales office and up to four (4) model homes to be used for the customary temporary marketing and sales activities of the Builder.
Consistency with the City’s Comprehensive Plan
Key relevant Comprehensive Plan policies, related to this Settlement Implementation Agreement, include but are not limited to the below:
GOAL 1.1: Create and maintain a broad range of land use activities that maximize the City’s potential as a growth center while protecting the public health, safety, welfare, and appearance through the thoughtful planned use and developments of the land and public facilities.
Policy 1.1.1.1: Land Use Categories. “The adopted FLUM [Future Land Use Map] contains and identifies appropriate locations for the following land use categories. The maximum densities/intensities [are] shown in Figure FLU-1…”
Objective 1.1.2.2: Very Low Density Residential (VLDR). Very low-density
residential areas consist of neighborhoods of single-family detached housing.
Staff comment: Figure FLU-1 establishes the maximum density for VLDR Future Land Use at 4 dwelling units per acre. With 212.10 gross acres, and 418 dwelling units, the gross density for the project is 1.97 du/acre. The Stipulated Settlement Agreement provides that the gross density permitted for this property will be approximately 2.03 du/acre. Thus, this proposed development is consistent with both the City Comprehensive Plan Future Land Use policies and the provisions of the Stipulated Settlement Agreement.
Concurrency
Staff will conduct a preliminary concurrency review of services required by the project at such time the applicant applies for the preliminary subdivision. A final review will be completed with the final subdivision and site plan application.
STRATEGIC PLAN CONNECTION:
The proposed Settlement Implementation Agreement which allows for the construction of approximately 418 single-family homes is consistent with the Strategic Plan issues, goals, and objectives related to Physical Image.
BUDGETARY IMPACT:
N/A
PREVIOUS ACTION:
N/A
RECOMMENDED MOTION:
Recommendation
Approve a Settlement Implementation Agreement between Beachline Partners, LLC and the City of Cocoa to approve conceptual plans, an amenity schedule, and construction timeline for a residential subdivision, consistent with PUD zoning on the following property, commonly known as the former “Barrera Shores” or “Silvestri Property”, to implement that Stipulated Settlement Agreement, made and entered into December 11, 2007 and recorded in the Brevard County Official Records Book 5837, Page 2226: Parcel #: 24-35-10-00-502; To the extent necessary, authorize the City Manager and City Attorney to complete any outstanding technical issues and record the Agreement