September 6, 2001

The Board of County Commissioners of Brevard County, Florida, met in regular session on September 6, 2001, at 9:00 a.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Susan Carlson, Commissioners Truman Scarborough, Randy O'Brien, Nancy Higgs, and Jackie Colon, Assistant County Manager Peggy Busacca, and Assistant County Attorney Eden Bentley.

The Invocation was given by Reverend Calvin Gittner of the Pineda Presbyterian Church, Melbourne, Florida.

Commissioner Truman Scarborough led the assembly in the Pledge of Allegiance.

ANNOUNCEMENT

Chairman Carlson stated at this time the School Board is having its budget hearing, which is being broadcast on the channel the Board meeting is normally broadcast on; as soon as the School Board meeting is finished, the channel with take up the Board meeting; and tomorrow morning the entire meeting will be rebroadcast.

PUBLIC HEARING, RE: TABLED ITEMS FROM APRIL 9, MAY 7, AND JULY 9, 2001
PLANNING AND ZONING MEETINGS AND MAY 10, AND JULY 26, 2001 NORTH
MERRITT ISLAND DEPENDENT SPECIAL DISTRICT MEETING

Chairman Carlson called for the public hearing to consider tabled items from April 9, May 7, and July 9, 2001 Planning and Zoning meetings and May 10, and July 26, 2001 North Merritt Island Dependent Special District meeting, as follows:

Item 1. (Z0104101) Roger Vaughn, Jr.'s request for change from GU to ARR on 1.17 acres located on the east side of Satellite Boulevard, approximately 300 feet south of Cherven Avenue, which was recommended for approval by the Planning and Zoning Board.

Zoning Official Rick Enos stated a request has been received from the applicant to table the item for one month due to illness.

Commissioner Scarborough stated with this particular set of facts, the Board has never approved ARR; and the applicant has been offered a refund. He stated he would like to take the action to table, but instruct staff, if the applicant wishes to withdraw, the Board has pre-approved a refund and it does not need to come back; and inquired if that is an appropriate motion. Assistant County Attorney Eden Bentley responded yes, if it is being tabled.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to table Item 1 to October 4, 2001 Board meeting, with direction that if the applicant withdraws before that time, the fee will be refunded. Motion carried and ordered unanimously.

Item 2. (Z0104108) Heidi Silbernagl's request for change from GU to ARR on 2.5 acres located on the west side of Magee Drive, approximately 300 feet south of Jennelle Avenue, which was recommended for approval by the Planning and Zoning Board.

Zoning Official Rick Enos stated the applicant withdrew the item. Commissioner Scarborough stated there are possible vested rights, so there is potentially other action.

Item 3. (NMI10502) Colin Steer's request for change from AU to RR-1 on 120 acres located on the north side of Chase Hammock Road, approximately 700 feet east of Winding Way, which was recommended for approval by the North Merritt Island Dependent Special District Board with a BDP for maximum of 62 units and houses to be a minimum of 2,000 square feet.

Attorney Tim Pickles, representing the applicant, requested the Board continue the item to the next meeting, based on discussions with Commissioner O'Brien and the Commission's concerns about school overcrowding. He advised the School Board has not come back with a report indicating the effect of the development on Lewis Carroll Elementary.

Commissioner O'Brien stated cards have been submitted by Will Purdue, Simon Spiess, Margaret Woodard, and Mercedes Carlson; and inquired if they wish to speak tonight to the item. He advised the applicant has requested the item be tabled to next month until the School Board report is available.

Attorney Pickles stated the request is to table until next month or the next available meeting; and he understands an interim report will be published at the end of September. Mr. Enos advised he was told the next meeting when the issue will be discussed is September 24, 2001.

Discussion ensued on whether the speakers desire to speak now or at the next meeting, whether testimony should be taken from the applicant, postponing testimony in everyone's best interest, and ability to submit written comments if speakers are unable to attend the next meeting. The speakers reached consensus to wait until the next meeting to speak.

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to table Item 3 to October 4, 2001 Board meeting. Motion carried and ordered unanimously.

Commissioner Higgs requested those who have put in speaker's cards be sent copies of the report from the School Board so everyone has the same information. Commissioner O'Brien agreed; and Assistant County Manager Peggy Busacca was given the speaker cards.

A member of the audience advised there are questions about flooding in the area; and requested County staff be present at the next meeting to address that. Chairman Carlson recommended the speaker meet with Ms. Busacca.

Item 4. (Z0107102) Carl B. (Jr.) and Joyce E. Bates' request for change from RRMH-1 to TR-1 on 0.3725 acre located on the west side of Old Dixie Highway, approximately 660 feet south of Brockett Road, which was recommended for approval by the Planning and Zoning Board on the south 65 feet only.

Commissioner Scarborough stated he met with the Bates; they conferred with Mr. Enos to figure out other avenues; but this is the only way that is possible.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Item 4 as recommended by the P&Z Board.

Commissioner Higgs stated this increases the density in the area in Mims; the elementary school in Mims, as well as the other schools in the feeder chain, are overcrowded; there are three items on the agenda that increase density as a result of the rezoning; and while one unit does not seem like much, there is a cumulative effect. She stated the Board needs to discuss, before it moves further, how it is going to consider the School Board report and apply the information in terms of cumulative effect versus some number the Board may devise as to when to begin to review. She stated the Board has to be just and fair in its application of the principles of school overcrowding if it is to be used as a criteria, which the Comprehensive Plan discusses.

Chairman Carlson stated the Board has been consistent in tabling some of the items that would propose additional density.

Commissioner Scarborough stated north of Titusville there have been very few building permits; the school is overcrowded because people are electing to send their children there because it is felt some schools are better than others; so the movements have occurred outside the increased density of zoning. He advised the applicants do not want this for a small child; and inquired what is the planned use of the property.

Joyce Bates stated they want a place for her and her husband to live; and her son will live there so he can give them assistance.

Commissioner Scarborough stated there is not massive building going on in Mims; the Board is not far enough along with the school overcrowding issue; and this is a family thing, and not a development. He stated he has no problem proceeding with this; once the Board gets into the school issue, there are going to be profound problems with the whole philosophy; and it is something that will need to be discussed. He stated currently there is school movement by freedom of choice where a parent can elect to move a child from one school to another; and as students move, there may be overcrowding at one school. He stated other schools may have fewer students; and some strange things may occur if there is an assumption that the overcrowding in Mims has occurred because building permits have been issued. He inquired how many building permits have been issued in the Mims area.

Chairman Carlson stated the Board has postponed issues when there has been an increase in density; and inquired will it help or hinder to allow a special consideration at this point. Assistant County Attorney Eden Bentley responded consistency in the application of the Comprehensive Plan would be beneficial; and while each case has its own facts and may be distinguishable, a consistent approach is generally helpful.

Commissioner Scarborough stated Ralph Waldo Emerson said, "A silly consistency is the hobgoblin of little minds"; and he would never want to infer the County Attorney had a little mind.

Commissioner Higgs stated justice has to be consistently applied; the Board has talked at meetings about the application of the Comprehensive Plan element in regard to school facilities; that application needs to be consistently applied; and if not, then the Board is treating someone unjustly and unfairly, and the County will lose in court. She stated the County has no control once the zoning is granted as to what the individuals do with the property; in granting a zoning, there is no guarantee if property will be sold or whether building permits will be pulled; and the issue of building permits in Mims is not relevant to the discussion. She stated the Board needs to discuss whether it is going to deal with the issue of the Comprehensive Plan, zoning, and overcrowded schools; and if it is, then it needs to decide in some consistent rational way at what point it is going to apply it.

Commissioner Scarborough stated if the rule is enforced strictly, it will be successfully attacked as being irrational because if the cause of the overcrowding is not related to the actions of the Board, but is purely a school issue, then there is no basis for the Board's action; and having no basis for action, the action will be held to be arbitrary and capricious by the courts.

Chairman Carlson stated she agrees with Commissioner Higgs in terms of consistency; September 24 there will be a meeting with the School Board to discuss this; and it seems the Board could wait a bit longer to get some input, have a discussion on that input, and then apply it across the board.

Commissioner Scarborough stated there can be additional overcrowding tomorrow in any school because someone elects to move to that school; and if that is the reason for the overcrowding, and the Board responds by taking away a person's rights to seek action before the Board, the courts are not going to allow that. He stated there has to be a relationship and it is lacking in this case.

Commissioner Colon stated these issues need to be taken one at a time; this has been tabled before; and she will support Commissioner Scarborough's motion.

Motion by Commissioner Scarborough, to approve Item 4 as recommended by the P&Z Board.

Commissioner Higgs inquired following the logic that overcrowding could be caused by a variety of factors, why would the Board be concerned with the Comprehensive Plan and the issue of zoning as a contributor to overcrowding. Commissioner Scarborough stated if it can be shown that zoning is causing the overcrowding, then the Comprehensive Plan says yes; but if the overcrowding is clearly demonstrated to be by other factors, then there is a problem. He stated the overcrowding in Mims could be handled tomorrow by not allowing people who do not live in the district to put their children there; and inquired if it is fair for everybody who owns property in Mims to have an overcrowded school based on the fact that people are opting to go in and the School Board is allowing it. Commissioner Higgs stated she does not know how the Board is going to sort out some of those issues. Commissioner Scarborough cautioned the Board to be careful, because if there is not a relationship, the plan is not a plan at all. Commissioner Higgs stated the cumulative effect of multiple rezonings in an area will have the same effect as one rezoning that is 10 to 30 acres; and she agrees the Board should be careful.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to table Item 4 until the school overcrowding policy can be distinguished clearly. Motion did not carry; Commissioners Higgs and Carlson voted aye; and Commissioners Scarborough, O'Brien, and Colon voted nay.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Item 4 as recommended by the P&Z Board. Motion carried and ordered; Commissioners Higgs and Carlson voted nay.

Chairman Carlson stated she understands Commissioner Scarborough's position, but believes it to be premature; and advised there is not much time to wait before the Board can be more consistent. Commissioner Scarborough stated if the Board was approving hundreds of items, it would have relevance; but what the Board is doing is discrediting the whole discussion by taking one unit in Mims and singling it out; and if the Board goes there, the courts will hurt it. Commissioner Higgs stated she does not believe that; with Commissioner Scarborough responding if it appears to be capricious, it is going to go down. Commissioner Higgs stated she agrees, and that is why the Board needs to be consistent instead of being arbitrary.

Item 5. (Z0107109) Stephen V. and Cheryl D. Pramuk's request for Mixed Use Boundary Expansion and change from AU and RU-1-13 to BU-1 on 2.10 acres located on the north side of SR 46, approximately 300 feet west of Pine Avenue, which was recommended by the LPA for denial or if necessary approval of Community Commercial on the south 300 feet only, and approval of BU-1 on the south 300 feet only by the Planning and Zoning Board.

Commissioner Scarborough stated he has been informed by staff that they are trying to work things out with neighbors; this property abuts residential, and they have not talked to the adjacent neighbors; and it is his inclination to table.

Attorney David Norris, representing Millennium Development of Titusville and Stephen and Cheryl Pramuk, stated Millennium Development is the contractor/purchaser of the property; they have discussed this with three of the five adjacent property owners, who are all in favor; and Mr. and Mrs. Pramuk own the property to the north. He stated Millennium Development owns the property along the west side; and the majority of residents on the east side has been contacted and is in favor. He stated there are two lot owners in the back that have not been contacted; but there has been no objection from them at prior meetings or by letter; and unless they are present tonight to object, he is ready to proceed.

Commissioner Scarborough stated the properties in question are in the area that directly abuts the subject property; the other properties do not abut; and the two properties that have not been contacted have more at stake than any others. He stated he was advised they were being contacted, and that is why this was tabled the last time. Mr. Norris advised this was tabled the last time due to a scheduling problem.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to table Item 5 to October 4, 2001 Board meeting. Motion carried and ordered unanimously.

Item 6. (Z0107403) Barry R. and Betty Earlene Ranew, as Co-trustees' request of change from RR-1 to BU-1-A on 1.03 acres located on the south side of Murrell Road, approximately 800 feet north of Barnes Boulevard, which was recommended for approval by the Planning and Zoning Board.

Chairman Carlson stated this particular item was tabled at the last meeting because the person did not want to stay until midnight to be heard.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Item 6 as recommended by the P&Z Board.

Item 7. (NMI10701) George A. and Barbara H. Ogle's request for change from AU to SR on 0.579± acre, for which there was no recommendation from the North Merritt Island Dependent Special District Board.

Mr. Enos stated the applicant is allowed to request a vested rights determination; that will not be heard by the Board until next week; and staff suggests this be tabled for another month.

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to table Item 7 to October 4, 2001 Board meeting. Motion carried and ordered unanimously.

Item 8. (NMI10501) Bud and Mary Carol Crisafulli's request for CUP for Towers and Antennas in an AU zone, removing the existing CUP for a Temporary Security Trailer on 42.31± acres located immediately southwest of East Crisafulli Road, which was recommended for denial by the North Merritt Island Dependent Special District Board.

Mr. Enos stated the applicant requests the item be tabled to October 4, 2001.

Motion by Commissioner O'Brien, seconded by Commissioner Higgs, to table Item 8 to October 4, 2001 Board meeting. Motion carried and ordered unanimously.

A member of the audience questioned the tabling. Chairman Carlson inquired if there is a requirement how many times something can be tabled; with Assistant County Attorney Eden Bentley responding there is no bright line on that; and this is a request by the applicant to table.

Mr. Enos stated the applicant is trying to work with another tower in the nearby vicinity to co-locate. Chairman Carlson inquired when the item comes back, will the consultant be here; with Mr. Enos responding the Board has not typically done that, but he can ask that he be present. Chairman Carlson stated the Board asked for a consultant to be present previously when there was a tower issue in case there were technical questions.

Commissioner Colon suggested staff confer with the audience member.

Item 9. (Z0105402) Cocoa Expo, Inc.'s request for a Small Scale Plan Amendment from Neighborhood Commercial to Community Commercial and change from TR-1 to BU-1 on 6.30 acres, located in the overall parcel owned by Cocoa Expo, Inc. on the north side of SR 520, approximately 346 feet east of Friday Road, and on the east side of Friday Road, approximately 540 feet north of SR 520, which was recommended for approval by the LPA excluding the TR-3 parcel to the northwest, and for approval of BU-1 by the Planning and Zoning Board, excluding the TR-3 parcel to the northwest.

Commissioner Scarborough inquired if there are still people objecting; with Chairman Carlson responding she believes so.

Holly Myers, representing Cocoa Expo, Inc., stated the property outlined on the map in green is the Cocoa Expo property, which is zoned BU-1, with the exception of a small piece where the dormitories are located, which is zoned GU-1; and they wish to rezone all those areas outlined in black, which are numbers one through five on the aerial. She advised between the P&Z Board meeting in May and the Commission meeting in May, the two properties which are outlined in red on the northwest corner were purchased; as the current owners took over the property, they realized they were going to have to become a more intensive operation to continue to exist; and they had a policy to purchase surrounding residential properties to provide a buffer. She advised of the properties on which rezoning is requested, Mr. Wright's property, which is not being requested for rezoning at this time, and Ms. Lindicott's property to the north of Mr. Wright's property. She advised she is not sure who submitted the other card; with Chairman Carlson responding Ms. Hickman. Ms. Myers pointed out Ms. Hickman's property on the map; and noted Cocoa Expo has no plans to do anything on the property for which it is requesting rezoning.

Chairman Carlson requested Ms. Myers explain the parking arrangement. Ms. Myers stated the main issue with parking was illegal parking along Friday Road; the Expo charges for parking, so people were parking on the road rather than parking in side; and the Expo purchased additional property to have onsite parking as well as entering into Agreements with other persons off-site, so people can be shuttled from the commercial centers to the Expo. She stated on big events they hire off-duty Sheriff's Deputies to patrol not only Friday Road, but also SR 520, and tow cars that are parked there. Chairman Carlson stated the deputies can cite violations, but not necessarily tow, and the Expo tows; with Ms. Myers responding they are parking on the public right-of-way, so the Expo cannot have them towed.

Commissioner O'Brien stated if there is a problem, the Board may want to put an item on the agenda to discuss towing on public rights-of-way, who should be paying for the towing, and how it should be handled. Ms. Myers stated she does not think there is a problem any more; they have been doing this for approximately a year and a half; and there have not been problems since they started hiring deputies. Commissioner O'Brien stated if there is a problem, the Board needs to start solving it; and it is a Countywide problem.

Eunsoo Hickman stated she lives on Friday Road; and pointed out her property on the map. Ms. Hickman advised of problems with noise and damage to mailboxes; and stated she is a single woman living alone with a six-year old child, cannot afford to move, and is scared. She stated she was told she could be kicked out whenever the Expo wants. Chairman Carlson inquired who told Ms. Hickman that; with Ms. Hickman responding just people talking. Chairman Carlson inquired if the Expo has requested to purchase Ms. Hickham's property; with Ms. Hickman responding no. Chairman Carlson inquired if Ms. Hickman is concerned the Expo may wish to purchase the property; with Ms. Hickman responding affirmatively. Chairman Carlson stated there may be a reasonable possibility that the Expo might be interested in purchasing Ms. Hickman's property; but she does not know its intentions. Ms. Hickman stated the Expo said it is not going to do anything about it; it is renting two trailers; and there is a lot of noise and bad language.

Commissioner Colon inquired if Ms. Hickman owns the property she lives on; with Ms. Hickman responding she owns the property and the trailer. Commissioner Colon stated no one can come and kick Ms. Hickman out; they can offer to buy it; but Ms. Hickman has rights.

Margaret Lippincott pointed out her property on the map; stated she has been there since 1989; and inquired if they have rights, why have they had to endure all the noise, etc. for all these years. She stated as far as bringing in extra police to control the traffic, it is not possible to get through on Friday Road; and the complaints are endless. She stated she put her property up for sale last year and was unable to sell it; she offered her property to the Expo, and was told maybe in the near future; but maybe is not good. She stated Ms. Hickman has a six-year old child; she has a five-year old granddaughter she is raising; there are two rentals next door that the Expo did purchase, which it is renting to its employees; and she has a lot of complaints.

Commissioner Colon inquired when was the last time there was a game or event where nothing was being done and the traffic was just as bad. Ms. Lippincott stated there was a ball game on Labor Day; but it was in the front of the highway, which is closer to SR 520. Chairman Carlson inquired in the last year and a half, have there been problems getting to and from Ms. Lippincott's house on Friday Road because of traffic; with Ms. Lippincott advising she was in New York during the winter months last year. Ms. Lippincott stated she has been a resident since 1989; she was only in New York the past winter; and all the other years traffic has been horrendous. Chairman Carlson stated they have been trying to address the parking and traffic issues; and if Ms. Lippincott has not noticed a problem for quite a long time other than Labor Day, maybe those issues have been addressed. Ms. Lippincott stated all the big events come to the Expo; when the fair is there, there is parking on both sides of SR 520 even though there are police officers; and it is dangerous.

Ms. Myers stated people are probably driving up and down Friday Road during events, but they are not parking on the right-of-way; and traffic has diminished compared to what it used to be in the past. She stated the Deputies have only been out there for a year and a half, so the concerns Ms. Lippincott is describing happened prior to their being onsite.

Commissioner Colon inquired how much more traffic would the rezoning bring to the Expo; with Ms. Myers responding there are no plans to do anything with the property. Ms. Myers stated because the Expo was built so long ago, there are new regulations that they cannot meet in terms of buffers and setbacks from adjacent properties; and the Expo was not aware of those requirements until it started the rezoning process; but the purchase of properties was in step with those regulations. She stated they are trying to acquire some land around the property; one of the immediate problems is balls flying out of the fields; if they do, it is necessary to walk onto someone else's property to get the balls back; and that is not a good thing.

Commissioner Colon inquired if Ms. Myers can guarantee the Board that nothing will be built; with Ms. Myers advising the regulations require them to come back for a conditional use permit in order to do anything with those properties. Commissioner Colon inquired as of now, are there no plans; with Ms. Myers responding they have no plans for anything on any of those properties.

Commissioner Scarborough suggested denying the request as to the area around the parcels to provide a buffer; and the applicant could amend the request to keep the current zoning there to provide assurance of a continued buffer. Ms. Myers stated the fields right now go up to the property line; if the area is zoned BU-1 when they come in for a conditional use permit, they can use that area; but if it is not BU-1, it would not count as part of the area.

Chairman Carlson inquired if there are plans for property number two; with Ms. Myers responding they plan to use it as part of the buffer requirements for the conditional use permit; but they do not plan to put anything on it.

Commissioner Scarborough stated the map has areas designated one, two, and three; and as to area two, there could be several hundred feet they were not planning to do anything with that could be used for buffering. He suggested a binding development plan saying nothing active will occur there so it can be used for buffering. Ms. Myers stated part of area two is an existing youth soccer field. Commissioner Scarborough noted Ms. Myers said it was going to be used for buffer. Ms. Myers pointed out the areas not intended to be used. Chairman Carlson stated they bought two properties to buffer. Ms. Myers advised of the properties to be used as buffers; and stated with the exception of the one piece, they have no plans to do anything. Commissioner Scarborough stated he is looking at area two; there are two parcels in that area; and he is looking at the part that is more vertical. He stated it appears the north portion abuts the properties where people had some problems with the activities that are not compatible with their peace and quiet. Chairman Carlson stated they are not abutting.

Giles Malone, representing Cocoa Expo, pointed out two youth soccer fields and two trailers where Ms. Lippincott and Ms. Hickman live approximately 200 feet north of the soccer field; and stated most of the concerns were from traffic on Friday Road, which has been taken care of, and noise which comes from the stadium that is a considerable distance from them.

Commissioner Scarborough inquired what is going to happen after the Board takes action; and advised he is just looking at the vertical piece. Mr. Malone responded nothing is going to change; and they have been using those as soccer fields for ten years.

Chairman Carlson stated they are trying to make the whole area consistent with BU-1 because all the other areas that Cocoa Expo takes up is all BU-1; they have been using those properties as soccer fields and intend to continue that use; and they have been accumulating homes above the area for buffering because of the complaints. She stated the LPA suggested excluding the TR-3 parcel from the Small Scale Amendment; and she would agree with that.

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to approve Item 9 as recommended; adopt Ordinance amending Article III, Chapter 62, of the Code of Ordinances of Brevard County, entitled "The 1988 Comprehensive Plan", setting forth the Eighteenth Small Scale Plan Amendment of 2001, 01S.18, to the Future Land Use Map of the Comprehensive Plan; amending Section 62-501 entitled Contents of the Plan; specifically amending Section 62-501, Part XVI (E), entitled the Future Land Use Map Appendix for the site described as Area 1; and provisions which require amendment to maintain internal consistency with these amendments; providing legal status; providing a severability clause; and providing an effective date; adopt Ordinance amending Article III, Chapter 62, of the Code of Ordinances of Brevard County, entitled "The 1988 Comprehensive Plan", setting forth the Eighteenth Small Scale Plan Amendment of 2001, 01S.18, to the Future Land Use Map of the Comprehensive Plan; amending Section 62-501 entitled Contents of the Plan; specifically amending Section 62-501, Part XVI (E), entitled the Future Land Use Map Appendix for the site described as Area 2; and provisions which require amendment to maintain internal consistency with these amendments; providing legal status; providing a severability clause; and providing an effective date; and adopt Ordinance amending Article III, Chapter 62, of the Code of Ordinances of Brevard County, entitled "The 1988 Comprehensive Plan", setting forth the Eighteenth Small Scale Plan Amendment of 2001, 01S.18, to the Future Land Use Map of the Comprehensive Plan; amending Section 62-501 entitled Contents of the Plan; specifically amending Section 62-501, Part XVI (E), entitled the Future Land Use Map Appendix for the site described as Area 3; and provisions which require amendment to maintain internal consistency with these amendments; providing legal status; providing a severability clause; and providing an effective date.

Commissioner Colon inquired what happens when the fair comes, and were they successful at the last event or were there problems. Mr. Malone stated the area to the north, the two soccer fields, cloverleaf, and four baseball fields are all parking for the fair; and the fair takes place in the south half.

Chairman Carlson stated the area of concern is the northern area where all the fields are; the fair is south off of SR 520; and inquired when is the fair; with Mr. Malone responding November 8 through 18, 2001. Chairman Carlson stated that will be a test to make sure there is no clogging of Friday Road; there is more parking than there was last year; hopefully that got rid of the congestion and illegal parking problems; and there will be a Deputy on hand. She stated it is the Expo's intent to accumulate more land; and that is the intent of purchasing Parcel 3. Mr. Malone stated that was purchased approximately five years ago along with Sections 2 and 3; and they have been sitting vacant with no plans to use them.

Commissioner Higgs stated there was some discussion about a conditional use permit; and inquired if they are coming back; with Chairman Carlson responding that is for permanent commercial and entertainment purposes; and requested further explanation. Commissioner O'Brien inquired if that is a separate issue. Ms. Myers indicated they will return for a conditional use permit. Commissioner Higgs stated the conditional use permit takes different characteristics than the zoning; so some of the problems being discussed tonight will be discussed then. She stated the noise issues that are affecting the residents will be part of her consideration if the Board hears a CUP.

Commissioner Scarborough seconded the motion. Motion carried and ordered unanimously.

Item 10. (Z0107106) Steven D. and Veronica M. Lawhon's request for Small Scale Plan Amendment to change the Future Land Use Map designation from Residential at one dwelling unit per two and one-half acres to Residential 1 at one dwelling unit per acre and change from

GU to SEU on 4.35 acres located on the north side of Hibiscus Avenue, approximately 130 feet west of Grissom Parkway, which was recommended for approval by the LPA and Planning and Zoning Board.

Chairman Carlson stated there was on objection. Commissioner Scarborough stated this has been discussed; and inquired if the objecting party is present tonight; with Steven Lawhon responding no, he met with James Thomas, who was objecting, and offered to buy his property.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Item 10 as recommended by the P&Z Board; and adopt Ordinance amending Article III, Chapter 62, of the Code of Ordinances of Brevard County, entitled "The 1988 Comprehensive Plan", setting forth the Seventh Small Scale Plan Amendment of 2001, 01S.7, to the Future Land Use Map of the Comprehensive Plan; amending Section 62-501 entitled Contents of the Plan; specifically amending Section 62-501, Part XVI (E), entitled the Future Land Use Map Appendix, and provisions which require amendment to maintain internal consistency with these amendments; providing legal status; providing a severability clause; and providing an effective date.

Commissioner Higgs inquired in the Comprehensive Plan change is a different future land use being put on the property than on the surrounding properties; with Planner Todd Corwin responding yes, the current designation is residential at one unit per two and one-half acres and the request is for residential at one unit per acre. Commissioner Higgs stated it is not good policy to put a change on the Future Land Use Map in the middle of a surrounding area; this puts a four-acre Comprehensive Plan change in the middle of something totally different; and inquired if the Board would ever entertain an administrative rezoning of the rest of the properties. Mr. Corwin stated this area was examined at one time in the past, and there was a Comprehensive Plan amendment that would have changed the entire section to one unit per acre; however, when it was sent to DCA, objections were raised and the amendment never went forward. Commissioner Higgs inquired why DCA denied it; with Mr. Corwin responding it had environmental concerns and concerns about the increase in density. Commissioner Higgs inquired if the change tonight will not increase the density and is consistent with what is already there; with Mr. Corwin responding that is correct.

Commissioner Scarborough stated Mr. Lawhon has put in a road entrance off Grissom Road as it approaches Canaveral Groves and put in a road entrance; he is putting in a single-family type home environment; and he is able to do that because he is putting in a lot more infrastructure than would be found in the more rural areas. He stated he would not want to change all of them in this manner, but limit it to where infrastructure is constructed at the expense of the developer; if the developer changes the methodology of how it develops, that is one thing; but it is another thing to take raw acreage and increase the density. He stated this is on the entrance road into the major development; and inquired if there are model houses; with Mr. Lawhon responding yes, two. Commissioner Scarborough stated this is consistent with everything that has been done with the development out there.

Commissioner Higgs stated all the subdivided lots have an established density based on the subdivision; this is four lots that are going to change the Comprehensive Plan; but they will have the same density as established by the rest of the lots. She stated it does not make sense to have a Comprehensive Plan change in this small area; and if the Board is going to do it, it should be for all the lots.

Commissioner Scarborough advised of Mr. Lawhon's mitigation of the wetlands and addressing of the entrance; and stated he has developed totally different than the surrounding properties. He stated the property in question is on the entrance into the totally different environment; and questions have come up from people who have property in traditional zoning. He stated there was an issue of how many horses could be on an adjoining property; and there is incompatibility; but the Board needs to be careful because what Mr. Lawhon has done is with great cost for mitigation of wetlands and infrastructure costs. He stated Mr. Lawhon has developed something substantially more expensive; therefore, there is a capacity to do a different density than if there were more rural areas.

Commissioner Higgs stated this is not a different density than the surrounding area; the density stays the same; and the density of all the lots that she sees will remain the same at one unit an acre. She stated Mr. Lawhon is asking for a Comprehensive Plan change; and she is wondering why the Board is doing just the four lots and not the rest. Mr. Lawhon advised he is asking for the one unit per acre; and the way the lots are platted now, he could build one house on each of the acres. Commissioner Higgs stated all Mr. Lawhon is doing is reconfiguring the lots; but this is a Comprehensive Plan change, which is a bigger deal; and she is concerned about how the Board applies changes to the Comprehensive Plan.

Chairman Carlson inquired if this is any different than the Board has applied changes to the Comprehensive Plan before in terms of the future land use; and how much is the process being varied. Mr. Enos responded the Board is not varying the process; Comprehensive Plan changes are requested periodically; and this is the procedure that has been used all along. Chairman Carlson inquired if it is general practice to go in and look at an area that is primarily GU and just pick a point and say this is SEU. Mr. Enos responded this does not happen every day; but the property owner in this case has a subdivision to the west; and it makes sense that he would make this request. He stated the peculiar circumstance is that there are nonconforming lots of record, so the density is not really changing on the ground; the Comprehensive Plan density is being established at a lower density than what is represented on the ground; and in order to reconfigure the property, a Comprehensive Plan change is needed. He stated this may be an appropriate time for the Board to direct staff to do a small area study along this corridor; there is development occurring along Grissom Road; and perhaps this area is changing.

Commissioner Scarborough stated what Mr. Lawhon has done has justified some changes as to density; and as to the broader areas, there are still some larger areas with horses; and Mr. Lawhon's development is out of character with the area; but it is a nice upscale development that adds value to the community.

Commissioner Colon seconded the motion. Motion carried and ordered unanimously.

Item 11. (Z0107302) Louis F. and Dorothy M. Lavrich, Co-Trustees' request for Small Scale Plan Amendment to change the Future Land Use Map designation from Residential 2 at two dwelling units per acre to Residential 4 at four dwelling units per acre, and change from BU-2 to RU-2-4 on 0.66 acre located on the east side of US 1, approximately 200 feet south of Daytona Boulevard, which was recommended for approval by the LPA and Planning and Zoning Board.

Bruce Cooper, representing Louis and Dorothy Lavrich, stated they are requesting a rezoning from BU-2, which is a high intensity commercial use, to RU-2-4; and the proposal is to build a duplex for a family-related matter as both sides of the unit will be occupied by both families. He advised of change to the Comprehensive Plan in terms of the coastal high hazard area; and stated he is prepared to submit a binding development plan to insure compliance with the density issues. He submitted a survey; stated the property is adjacent to a high commercial use, which is Miner's Marina; and this would provide a good transition between the existing single-family units to the south. He requested favorable consideration.

Commissioner Higgs stated with the binding development plan, the Comprehensive Plan change is no longer needed; with Planner Todd Corwin advising that is correct. Commissioner Higgs stated the recommendation is to go to RU-2-5 on the westerly 110 feet and RU-2-4 with a cap of two units per acre on the remainder; and inquired if that is the request. Mr. Cooper responded yes, he has given staff a modification and it is binding; and they will modify the depth of the fill to compensate for the density.

Commissioner Higgs stated this particular area of Grant goes to Westside Elementary, Southwest Middle School, and Bayside High School; none of those schools are over capacity; this is consistent with the Comprehensive Plan; and the neighborhood would benefit from this transition.

Motion by Commissioner Higgs, seconded by Commissioner Colon, to approve Item 11 with a Binding Development Plan setting density provisions. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ZONING RECOMMENDATIONS OF THE AUGUST 6, 2001
PLANNING AND ZONING BOARD MEETING

Chairman Carlson called for the public hearing to consider the recommendations of the Planning and Zoning Board made at its meeting of August 6, 2001, as follows:

Item 1. (Z0108101) Jerry O. and Coyet K. Wall's request for change from GU to AGR on 2.06 acres located on the east side of Moonlight Drive at the eastern terminus of Bear Trail, which was recommended for approval by the Planning and Zoning Board.

Commissioner Scarborough stated this is outside the floodplain.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to approve Item 1 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 2. (Z0108102) Hans Saurenmann's request for Small Scale Plan Amendment to change the Future Land Use Map designation from Residential to Mixed Use District or from Residential at one dwelling unit per two and one-half acres to Community Commercial and change from AU to BU-1 on 0.37 acre located on the northwest corner of Temple and Showdow Streets, which was recommended for denial by the LPA and Planning and Zoning Board.

Commissioner Scarborough stated the LPA recommendation is denial.

Hans Saurenmann submitted paperwork, and described the property that is the subject of the rezoning request from AU to BU-1 and request for Small Scale Plan amendment 01.S.13 to change the Future Land Use Map designation from residential to mixed use district or from residential to community commercial. He commented on the plat for Canaveral Groves, certification dates, Interstate 95, downsizing of Lots 1 and 2 from 2.5 acres to 0.37 acre, and property being unsuitable for residential. He stated it is zoned residential; maybe in the future, if I-95 is widened, it will consume the rest of his property; and commented about possibility of a non-commercial billboard. He stated at the Planning and Zoning Board meeting on August 6, 2001, there were irregularities; and recommended the Board disregard the recommendation. He stated the Land Use Citizens Resource Group on August 23, 2001 tabled the request concerning conflict of interest by Zoning Board member Ed Coburn and his wife Ann Coburn, President of the Canaveral Groves Homeowners, Inc. He stated his property is a leftover; he inherited all the rights and duties when he bought the property; it is wrongfully zoned residential; and it should have been rezoned to mixed use or whatever a long time ago. He stated he asked staff what he had to do to put a non-commercial billboard on the property because that is one of the two things that can be done with the property; and the other is to give it to FDOT to widen I-95. He stated he is not the only one with property this size; when he was before the P&Z Board, there was a member who used the position wrongfully by not saying in public that there was a conflict of interest; and there are two letters included in the file from Ed and Ann Coburn. He stated there was no chance to convince the Planning and Zoning Board that he wished to do something for the property; he feels mistreated; and he hopes the Board supports his request. He stated he is not sure he can even get a permit for non-commercial billboard; but staff advised of the necessity to get a rezoning to BU-1 in order to apply for a non-commercial billboard permit.

Chairman Carlson inquired after the property was cut down, did it become a nonconforming lot of record or how was it treated, and does it have to stay AU. Zoning Official Rick Enos stated the lot is undersized for an AU lot, even for a nonconforming lot of record under AU; a variance was approved by the Board of Adjustment contingent upon a rezoning to BU-1; so assuming the Board approves the rezoning, the lot will be of legal size, but if it does not, it continues to be an unusable AU lot.

Commissioner Colon stated she wants to put on the record the letters Mr. Saurenmann was referring to; and she will read them into the record. She stated she intends to make a motion to deny; and wants to let the people know what she will be basing the denial on, which will be nonconformity. Commissioner O'Brien stated the Board does not read letters into the record; and the letters are already a part of the record as they were submitted and will be given to the Clerk. Commissioner Colon stated it is possible to be able to read something into the record; and the Board has done that before. She read aloud from a letter from Ann Coburn, "The parcel of land for which the zoning change is requested is in the middle of Canaveral Groves. Canaveral Groves is a semi-rural residential community and the residents have repeatedly indicated that they wish to keep it that way. Except for existing business parcels at the intersection of Grissom Parkway and Canaveral Groves Boulevard, we oppose any area within our boundaries being zoned for business or commercial, no matter what the purpose. We feel that once a parcel is zoned for commercial/business purposes, it may lade to further requests for similar zoning changes." She stated Mr. and Mrs. Coburn are out of town; and the reason she read it is because it is from the Canaveral Groves Homeowners Association.

Mr. Saurenmann stated there is no homeowners association; it is a club of 35 to 50 people; there are approximately 5,000 dwellings in the area; and this is only a small group.

Motion by Commissioner Colon, seconded by Commissioner Scarborough, to deny Item 2 as recommended by the LPA and P&Z Board.

Commissioner Scarborough stated Mr. Enos' report goes through the reasons why there is difficulty in granting this request; and inquired if there is anything in the report that Mr. Enos would change; with Mr. Enos responding no, staff stands by the comments. Commissioner Scarborough stated there was a unanimous recommendation of the LPA for denial.

Commissioner Colon stated it is not consistent with the character of the area and does not comply with the location criteria of Policy 2.8 of the Comprehensive Plan dealing with community commercial.

Chairman Carlson called for a vote on the motion to deny Item 2. Motion carried and ordered unanimously.

Bill Cameron advised he submitted a card. Commissioner Scarborough inquired if Mr. Cameron was for the denial; with Mr. Cameron responding he was. Another speaker indicated he submitted a card, and was for the denial.

The meeting recessed at 6:54 p.m. and reconvened at 7:14 p.m.

Item 3. (Z0108103) Bryan H. and Diane K. Belcher and Bryan S. and Jay T. Belcher's request for change from AU to RRMH-2.5 on 30 acres located west and south of Hammock Road, approximately one-quarter mile south of Irwin Avenue, which was recommended for approval by the Planning and Zoning Board.

Commissioner Scarborough inquired if there were people who spoke in opposition; with Zoning Official Rick Enos responding he recalls one or two who spoke in objection. Commissioner Scarborough inquired what were their concerns; with Mr. Enos advising they were opposed to the mobile home use. Commissioner Scarborough requested Mr. Enos explain about having a mobile home in AGR. Mr. Enos stated currently the property is zoned AU, which is one unit per two and one-half acres; the request is for mobile home, which is also two and one-half acres; and the other option available for consideration is AGR, which is a five-acre lot permitting both agricultural uses and mobile homes.

Commissioner Scarborough inquired if Mr. Belcher understands that; with Mr. Belcher indicating he does not. Mr. Enos stated the applicant is requesting RRMH-2.5, which is a mobile home lot of two and one-half acres; another option that is available is AGR, which is a mobile home on five acres; it would allow larger lots with mobile homes; but the other advantage is that the AGR also allows agricultural uses. Commissioner Scarborough stated it would be compatible with the agricultural use; some density would be lost; and if Mr. Belcher goes with RRMH-2.5, he will not be able to have the agriculture. Bryan Belcher inquired if horses would be allowed; with Mr. Enos responding yes, in both of the classifications. Commissioner Scarborough requested Mr. Enos explain the difference in agriculture between the two; with Mr. Enos advising RRMH-2.5 will allow horses but no other agricultural uses; and AGR will allow almost unlimited agriculture. Commissioner Scarborough stated the difference is one dwelling unit on five acres rather than two and one-half acres. Mr. Belcher stated he has four five-acre parcels and four two and one-half acre parcels; and he would rather have it as requested because there is no future in agriculture.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to approve Item 3 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 4. (Z0108104) Withdrawn from Agenda.

Item 5. (Z108105) Gerald W. and Linda E. Browning's request for change from GU to AU on 2.22 acres located on the east side of Fishtail Palm Avenue, approximately 0.20 mile south of Cabbage Palm Street, which was recommended for approval by the Planning and Zoning Board.

Commissioner Scarborough inquired if there are any problems or objections; with Mr. Enos responding no.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to approve Item 5 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 6. (Z0108106) Jacob Aaron Corporation and B.D.M. Financial Corporation's request for change from GU and RU-1-11 to TU-2 on 20.28 acres, and BU-1 on 18 acres, with Small Scale Plan Amendment, if necessary, to change the Future Land Use Map designation from Neighborhood Commercial to Community Commercial on 8 acres, on total of 38.28 acres located between Grissom Parkway and I-95, and on both sides of Port St. John Boulevard, which was recommended for approval by the LPA of Community Commercial on the 8-acre tract identified as Node #4, as amended by the applicant and for approval by the Planning and Zoning Board of BU-1 on the 8-acre tract identified as Node #4, as amended by the applicant.

Commissioner Scarborough stated this appeared to be consistent with what should be occurring in the area.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Item 6 as recommended by the P&Z Board; and adopt an Ordinance amending Article III, Chapter 62, of the Code of Ordinances of Brevard County, entitled "The 1988 Comprehensive Plan", setting forth the Seventeenth Small Scale Plan Amendment of 2001, 01S.17, to the Future Land Use Map of the Comprehensive Plan; amending Section 62-501 entitled Contents of the Plan; specifically amending Section 62-501, Part XVI (E), entitled the Future Land Use Map Appendix, and provisions which require amendment to maintain internal consistency with these amendments; providing legal status; providing a severability clause; and providing an effective date. Motion carried and ordered unanimously.

Item 7. (Z0108201) Jeanne A. Hadge, Thomas E. Wasdin and Bruce A. Deville, as Trustees' request for change from PUD-Newfound Harbour Resort to PUD-Grand Harbour, removing the existing CUP's for Additional Building Height and a 200-bed Adult Congregate Living Facility on 48.7 acres located on the north side of Cone Road, approximately 0.25 mile east of South Plumosa Street, which was withdrawn by applicants.

Item 8. (Z0108202) John L. and Karen F. Luzietti's request for a CUP for Alcoholic Beverages for On-Premises Consumption in a BU-2 zone on 0.57 acre, located on the north side of Lake Drive, approximately 390 feet west of Pineda Street, which was recommended for approval by the Planning and Zoning Board, limited to a private club only.

Commissioner O'Brien inquired if there were any objections; with Zoning Official Rick Enos responding there were no objections. Commissioner O'Brien stated the Planning and Zoning Board unanimously recommended approval, limited to a private club.

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to approve Item 8 as recommended by the P&Z Board.

Commissioner Higgs stated in looking at the pictures, there appear to be homes on the north side; and inquired if there are setback requirements that would apply. Mr. Enos responded
there would be no special setbacks other than the standard setbacks in that classification. Commissioner Higgs inquired if church and school are the only distance requirements; with Mr. Enos responding that is correct.

Commissioner Colon requested the applicant elaborate on the actual use of the club.

Katherine Moore, Cocoa Motorcycle Riders Club, Inc., stated it is a non-profit group; and advised of activities of the club including supplying food, clothing, scholarships, and computers. She stated their office hours are during the daytime; and on Thursday through Sunday, they have their fundraisers. She stated they open at 7:00 p.m. and close at 2:00 a.m.

Commissioner Colon stated this is what the club does now, but the request is to bring alcohol into the club. Ms. Moore stated it is for the members' social hours. Commissioner Colon inquired have there ever been any complaints from anyone within the residential area; with Ms. Moore responding none. Ms. Moore advised they started the organization in 1991; they have had a lot of help from the community; and all of the members are business professionals who volunteer their time. She stated they try to help the young women and men in the community learn socialization skills; and they give young people a place to socialize with older people to learn.

Chairman Carlson inquired if this is for beer and wine or full alcohol; with Ms. Moore responding all. Ms. Moore advised they have officers who control the club, the hours, the crowd, the music and noise; they have talked to the neighbors; and there have been no complaints because they have respect for their neighbors.

Commissioner O'Brien inquired if this is south of Five Points; with Ms. Moore responding yes.

Chairman Carlson called for a vote on the motion. Motion carried and ordered unanimously.

Item 9. (Z0108301) Grady G. and Gail Lynne Hudmon's request for CUP for Towers and Antennas in an AGR zone, retaining the existing CUP for Land Alteration on 3.67 acres located 150 feet south of Micco Road, approximately 0.289 mile east of I-95, which was recommended for approval by the Planning and Zoning Board.

Commissioner Higgs stated the recommendation was for approval and waiver of 800 feet; and the recommendation is supported by substantial technical necessity.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to approve Item 9 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 10. (Z0108401) SBA Properties, Inc.'s request for change from RR-1 to AU and a CUP for Towers and Antennas and removing the existing CUP for Towers and Antennas on 2.5 acres located on the east side of Harlock Road, approximately 300 feet south of Carolwood Drive, which was recommended to be tabled to October 1, 2001 Planning and Zoning Meeting.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to table Item 10 to the October 1, 2001 Planning and Zoning meeting and November 4, 2001 Board meeting. Motion carried and ordered unanimously.

Item 11. (Z0108402) Brevard County Board of County Commissioners, on its own motion, authorized administrative rezoning from IU to PIP on 8.46 acres owned by Oleander Power Project, L.P., located on both sides of Townsend Road within 660 feet of the I-95 right-of-way, which was recommended for approval by the Planning and Zoning Board.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to approve Item 11 as recommended by the P&Z Board. Motion carried and ordered; Commissioners O'Brien and Colon voted nay.

Commissioner O'Brien stated Oleander Power said it was only going to sell out of County; and he read that Florida Power & Light Company was buying from Oleander.

Chairman Carlson stated this is an administrative rezoning based on previous Comprehensive Plan changes.

Item 12. (Z0108403) Theodore C. Howard's request for CUP for Alcoholic Beverages for On-Premises Consumption in a BU-1 zone on 2.77 acres located on the west side of Highway A1A, approximately 530 feet south of Berkeley Street, which was recommended for approval by the Planning and Zoning Board on Unit 554 only.

Chairman Carlson inquired if there were objections; with Zoning Official Rick Enos responding no. Chairman Carlson inquired if there are any outstanding Code issues; with Mr. Enos responding not to his knowledge. Commissioner Higgs inquired if it will be limited to a restaurant and this unit only; with Chairman Carlson advising it says on Unit 554 only.

Jack Pennel, representing the applicant, stated the Zoning Board recommended doing the whole plaza, but he is only interested in Unit 554. Commissioner Higgs inquired if it is part of a restaurant; with applicant Theodore Howard responding it is not a restaurant; it was a beer and wine establishment, and they desire to put full liquor in.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to approve Item 12 as recommended by the P&Z Board for Unit 554 only. Motion carried and ordered unanimously.

Commissioner O'Brien stated he contacted the County Attorney's office about conditional use permits such as this because once a CUP is granted, it cannot be revoked; and he requested the County Attorney put something on the agenda to discuss CUP's for alcoholic beverages in and putting a time limit on them, where they will have to come back and reapply once every two or three years, and establishments that have a long record of police calls and other problems can have the CUP revoked. Chairman Carlson stated the Board is going through a process now to revoke CUP's; with Commissioner O'Brien advising those are ones that are not being used. Commissioner O'Brien stated he is looking at CUP's for alcohol where there are problems such as the police having to be called several times a night, noise, beer cans in the driveway, etc; and the Board needs a mechanism to grant a permit to sell alcohol that will be able to be revoked upon presentation of certain evidence and will be reviewed on a regular basis. Mr. Enos stated there is a provision in the CUP regulations that would allow revocation of a conditional use permit if the conditions are not being met. Commissioner O'Brien inquired how would the Board be made aware of that fact unless the person being granted the CUP had to come back before the Board annually or biannually to renew the CUP or have it administratively renewed.

Jack Pennel stated he handles liquor licenses throughout the State; and there is a Statute that says if there are numerous complaints, there is the right to revoke the license based on improper or immoral activities going on. Commissioner O'Brien stated Babes on SR 520 had its license revoked; but it still had the CUP to sell alcohol, so the business was sold and is selling alcohol again. Mr. Pennel inquired if they went to federal court; with Commissioner O'Brien responding he did not follow the rest of the case.

Commissioner Higgs stated it would be possible to revoke if there were some principles or conditions for a time limit. Commissioner O'Brien stated if they could have revoked the CUP for Babes, that would have solved the problem for the entire community.

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to direct staff to report back to the Board concerning revoking conditional use permits for alcoholic beverages with the possibility of reviewing CUP's every two or three years. Motion carried and ordered unanimously.

Item 13. (Z0108404) George Harold and Nihla H. Trosset and Robert F. (Sr.) and Patricia Ann Trosset's request for change from AU to EU on 1.96 acres located on both sides of Rockledge Drive, approximately 0.51 mile north of Coquina Road, which was recommended for approval by the Planning and Zoning Board.

Commissioner Higgs stated children in this area go to Ralph Williams Elementary School, McNair Middle School, and Rockledge High School; and two of the three schools are over capacity; so she will not support a motion to approve.

Chairman Carlson requested that information be included in the zoning books; and recommended the item be tabled to October, so the Board can look at the School Board's recommendations in terms of zoning issues. Chairman Carlson stated the request is to increase density by two additional units; with George Trosset advising one unit. Chairman Carlson stated AU to EU is two units to four units. Mr. Trosset stated what they want to do is build a home for his parents in the backyard; and it will be two older people moving into the house who will not tax the school system. Chairman Carlson stated the zoning would remain on the land, so the density will have been increased; the school overcrowding issue has been a focal point in zoning matters; and she is requesting it be postponed until after the School Board discussion.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to table Item 13 to the October 4, 2001 Board meeting. Motion carried and ordered; Commissioner Scarborough voted nay.

Chairman Carlson stated hopefully in October, the Board will have information for all the items that are increasing density in areas where they may increase the numbers at the school. She advised it is just the zoning, and does not mean it applies to what Mr. and Mrs. Trosset want to do on the land.

Mr. Trosset advised he does not understand. Chairman Carlson requested Ms. Busacca explain it to Mr. and Mrs. Trosset.

Item 14. (Z0108405) Richard Lee Beattie's request for change from AU and BU-1 to BU-2, and Small Scale Plan Amendment to change the Future Land Use Map designation from Neighborhood Commercial to Community Commercial, on 4± acres located on the south side of SR 520, approximately 950 feet west of Lake Poinsett Road, which was recommended for approval by the LPA, and for approval by the Planning and Zoning Board with a BDP as offered by the applicant.

Richard Beattie advised his engineer has not arrived yet; and requested the item be deferred.

Commissioner O'Brien inquired if there are people present in opposition; with Chairman Carlson advising there are no cards. A member of the audience indicated he was notified of the hearing and wishes to speak. Chairman Carlson stated the Board will hear the item later in the meeting.

Item 15. (Z0108406) Roger and Mary Cynthia Garrett's request for change from GU and BU-1 to all BU-1, and Community Commercial Boundary Extension on 1 acre, located on the south side of Virginia Avenue, approximately 200 feet east of Fiske Road, which was approved by the LPA and Planning and Zoning Board.

Chairman Carlson inquired if Mr. Garrett submitted a binding development plan for a buffer against the homes to the south. Roger Garrett stated they changed the request from BU-2 to BU-1; the only thing they are trying to rezone is the east end of the property; and they want to have a retail nursery. Chairman Carlson inquired if they will be storing heavy equipment on the property; with Mr. Garrett responding no, they have another location for storage.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to approve Item 15 as recommended by the LPA and the P&Z Board. Motion carried and ordered; Commissioner Higgs voted nay.

Item 16. (Z0108407) Brevard County Board of County Commissioners, on its own motion, authorized administrative rezoning from BU-2 and IU to all IU on 0.72 acre owned by Robert M. and Rose Mary Shoff, located on the north side of Allen Hill Avenue, approximately 865 feet west of U.S. 1, also having frontage on the south side of the cul-de-sac of Anderson Way, which was recommended for approval by the Planning and Zoning Board.

Chairman Carlson stated there was no objection; and requested Mr. Enos elaborate. Zoning Official Rick Enos stated this is an administrative rezoning; Policy 10.2 of the Comprehensive Plan directs staff to initiate administrative rezoning as a result of a request for a development order if the zoning is inconsistent with the Comprehensive Plan; in this case the property is currently zoned IU and BU-2, but the Comprehensive Plan shows industrial use, so BU-2 is not consistent; and it is brought forward for rezoning to IU.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to approve Item 16 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 17. (Z0108501) Raymond and Teri L. Witzel's request for change from AU to RR-1 on 1.11 acres located on the north side of Fell Road, approximately 0.39 mile west of Minton Road, which was recommended for approval by the Planning and Zoning Board.

Ray Witzel stated they are trying to go from AU to RR-1; they bought an illegal lot and did not check on the zoning; and they would like to build a house on it now.

Motion by Commissioner Colon, seconded by Commissioner Scarborough, to approve Item 17 as recommended. Motion carried and ordered unanimously.

Item 18. (Z0108502) Joel S. Moss, as Trustee's request for a Mixed Use District Boundary Expansion or a Small Scale Plan Amendment to change the Future Land Use Map designation from Residential 15 to Community Commercial and change from BU-1 to BU-2 and removal of the existing BSP on 3± acres located approximately 250 feet north of U.S. 192 and approximately 0.63 mile west of Wickham Road, which was recommended for approval of the Small Scale Plan Amendment to Community Commercial by the LPA, and for approval of BU-2 by the Planning and Zoning Board with a BDP as offered by the applicant limited to the following products: farm maintenance products (fencing, tractor parts and accessories, agricultural spraying equipment and tillage parts), animal and pet products (specialty feeds, supplements, medicines, veterinary supplies and livestock feeders), general maintenance products (air compressors, welders, generators, pumps, plumbing and tools), lawn and garden products (riding mowers, tillers and fertilizers), light truck equipment, and work clothing.

Motion by Commissioner Colon, seconded by Commissioner Higgs, to approve Item 18 as recommended; and adopt an Ordinance amending Article III, Chapter 62, of the Code of Ordinances of Brevard County, entitled "The 1988 Comprehensive Plan", setting forth the Fifteenth Small Scale Plan Amendment of 2001, 01S.15, to the Future Land Use Map of the Comprehensive Plan; amending Section 62-501 entitled Contents of the Plan; specifically amending Section 62-501, Part XVI (E), entitled the Future Land Use Map Appendix, and provisions which require amendment to maintain internal consistency with these amendments; providing legal status; providing a severability clause; and providing an effective date. Motion carried and ordered unanimously.

Item 19. (Z0107201) Publix Supermarkets, Inc.'s request for a CUP to permit light fixtures which exceed 32 feet n height and exceed 400 watts per bulb in a BU-2 zone, retaining existing CUP for Sale of Alcoholic Beverage for On-Premises Consumption (Z-07607) and removal of an existing CUP for Sale of Alcoholic Beverages for On-Premises Consumption (Z-9243) on 10.72 acres located on the south side of SR 520, approximately 630 feet east of SR 3, which was recommended to be tabled to the September 10, 2001 Planning and Zoning Meeting and the October 4, 2001 Board meeting, with reprocessing fee required.

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to table Item 19 to September 10, 2001 Planning and Zoning Board and October 4, 2001 Board meeting with reprocessing fee required. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ZONING RECOMMENDATION OF THE AUGUST 20, 2001
SPECIAL PLANNING AND ZONING BOARD MEETING AND RESOLUTION FOR
PROPOSED CHANGE #10 TO DRI DEVELOPMENT

Chairman Carlson called for a public hearing to consider zoning recommendation made by the Planning and Zoning Board at its August 20, 2001 Special Meeting and Resolution for Change #10 to DRI Development, as follows:

Item 20. (SPEC01081) A. Duda and Sons, Inc., d/b/a The Viera Company's request for change from PUD, BU-1, PBP, and TU-2 to all PUD on 5,176.38± acres located west of I-95 south of Barnes Boulevard and north of the Pineda Causeway, which was recommended for approval by the Planning and Zoning Board.

Commissioner Higgs stated she met with representatives of The Viera Company who described the request. Commissioner Scarborough and Chairman Carlson indicated they also met with representatives of The Viera Company.

Chairman Carlson stated the item is complex because it deals with notice of change to the DRI and also the PUD; on the PUD there is comparison of site development data; and requested an explanation of the reduction of open space and how it affects the overall development.

Hassan Kamal, representing The Viera Company, stated the difference in the PUD open space is that since the original PUD was done in 1994 or 1995, the County's criteria has become substantially different in terms of the requirements; and they have restructured the PUD to comply with the current regulations and more accurately reflect how the project is going to develop in relationship to what was approved on the DRI map. He stated it is important to note that even though the numbers look smaller, the reduction in open space will not result in any additional units or square footage; on the original PUD and under the old regulations certain things, such as lakes and some conservation areas, were counted as open space; the lakes are still going to be there because they are needed for water management; but they will not be utilized in the open space tally. He advised the major open space facilities such as the pedways, regional park, and golf course will still be in the plan.

Chairman Carlson inquired about the order of the motions; with Planner Steve Swanke responding if the Board determines the item is not a substantial deviation, it can make a motion to approve it and authorize the Chairman to execute the revised development order.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to determine Change #10 to the Viera DRI is not a substantial deviation; and authorize the Chairman to execute the revised Development Order. Motion carried and ordered unanimously.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to approve the Notice of Proposed Change, and adopt the Resolution for the Revised Development Order. Motion carried and ordered unanimously.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to approve Item 20 as recommended. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ZONING RECOMMENDATION OF THE AUGUST 20, 2001
SPECIAL PLANNING AND ZONING BOARD MEETING

Chairman Carlson called for the public hearing to consider the recommendation of the P&Z Board made at its August 20, 2001 Special Meeting, as follows:

Item 21. (SPEC01082) Holy Trinity Episcopal Academy, Inc.'s request for CUP to allow light poles in excess of 32 feet, bulbs in excess of 400 watts, more than three luminaires per pole, and a lighting source in excess of 50 foot-candles in a BU-1, BU-2, IU, and PIP zone on 39.37 acres located on the south side of the Pineda Causeway, approximately 500 feet west of the FECRR and 880 feet east of Wickham Road, which was recommended for approval by the Planning and Zoning Board.

Chairman Carlson inquired if this is within the thresholds of the Ordinance; with Zoning Official Rick Enos responding yes, they are requesting waivers under the CUP for the listed requirements. Mr. Enos advised they are not requesting waiver of the perimeter lighting.

Cathy Ford, representing Holy Trinity Episcopal Academy, stated they work hard to be diligent and timely in planning their facility and buildout; but at the last hour a generous benefactor came forward and offered to put lights on the football field. She stated that resulted in their having to come to the Planning and Zoning Board at a special meeting for which they paid a $2,130 fee; and as it ended up being a very full meeting, she was hoping the Board would refund the fee.

Chairman Carlson stated even though the meeting was at the request of Holy Trinity, a lot of things were put on that meeting, which took up the majority of the time. Ms. Ford stated there was a three-hour meeting before their item was heard; and she hopes the Board considers those circumstances.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to approve Item 21 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to refund fee to Holy Trinity Episcopal Academy, Inc. for special meeting. Motion carried and ordered; Commissioners Higgs and Colon voted nay.

PUBLIC HEARING, RE: ZONING RECOMMENDATION OF THE AUGUST 8, 2001 PORT ST.
JOHN DEPENDENT SPECIAL DISTRICT BOARD MEETING

Chairman Carlson called for the public hearing to consider the recommendation of the Port St. John Dependent Special District Board, made at its meeting of August 8, 2001, as follows:

Item 1. (PSJ10801) Lukas J. and Annelise Kammermann's request for Small Scale Plan Amendment to change the Future Land Use Map designation from Residential to Mixed Use District or from Residential 4 to Community Commercial and change from RU-1-9 to BU-1 on 0.36 acre located on the northwest corner of Fay Boulevard and Grissom Parkway, which was recommended for approval by the LPA of Community Commercial, and recommended by the Port St. John Dependent Special District Advisory Board for denial of the Comprehensive Plan change and zoning change.

Commissioner Scarborough advised of the rules for addressing the Board.

Lukas Kammermann advised Hans Saurenmann will speak on his behalf. Mr. Saurenmann stated the Kammermanns bought the house on the corner of Fay Boulevard and Grissom Parkway in Port St. John; on the other side is a small child care complex, which is BU-1; and the request is for a Small Scale Plan amendment to mixed use district so they can put in a bakery to produce baked goods and sell them there.

Commissioner Scarborough stated the childcare facility is BU-1-A; and there is no BU-1, so the request would be an anomaly there.

Mr. Saurenmann stated there is also community zoning; and presented a sketch with all the commercial property on Fay Boulevard. He stated a neighbor got BU-1 zoning on September 8, 1993; the vote was four to one; and the motion was made by Commissioner Higgs, seconded by Commissioner Scarborough.

Commissioner Scarborough stated Mr. Saurenmann is referring to the BU-1-A; and there is a difference; with Mr. Saurenmann responding that is correct.

Lynn Forst, President of the Port St. John Homeowners Association, requested the Board deny the rezoning; and stated a bakery at this address would leave a bitter taste in the mouths of the Port St. John residents. She inquired what the change would do to residential property values, whether other properties along Fay Boulevard would ask for a zoning change, whether the changes would turn Fay Boulevard into a dirty congested area with abandoned buildings in the middle of a residential neighborhood, and how long would it be before this sort of growth would stretch along all of the main roads in Port St. John. She stated if this business is allowed, and closes its doors tomorrow, it will leave the property and the residents vulnerable to just about any type of business operation; and inquired if the Commissioners would want a business operating next door to their residences. She commented on other issues such as delivery service, hours of operation, noise, traffic, pedestrian concerns, smell, pollution, and septic tank problems. She stated they welcome commercial growth, but it needs to stay in commercially designated areas.

Maureen Rupe, representing Port St. John for Tomorrow, stated the LPA approved the request, but Port St. John had no representation at that meeting due to a mistake by the North Brevard representative in the time it was coming up; and consequently there was no one to state Port St. John's case against the item. She stated the BU-1-A has strict deed restrictions on it just for the day care center; and if the Port St. John Advisory Board had been in operation at the time, it probably would not have been approved. She stated there are safety concerns; the intersection is a major crossing for elementary school students attending Challenger 7; and it is a major artery intersection for the students, parents driving students, and busses for Challenger 7 and Enterprise Elementary Schools, and Space Coast Middle School; and from January 1997 through July 31, 2001, there were 64 accidents at this intersection. She stated that is a yearly average of 1.16 accidents per month; and this year the average is 1.86 accidents per month through July 31, 2001. She stated there is a family that fosters handicapped children on the adjacent residential property; there is a day care center on the parallel corner across Grissom Parkway; and introducing commercial delivery vehicles to the residential area will significantly degrade the safety of the children and commuting parents. She commented on Fay Boulevard as it goes west and school traffic, commercial vehicles bringing increased noise and stop and go traffic into the neighborhood, commercial deliveries being made at the same time children are going to school, intersection designed for residential use, and risk to residents walking, jogging, and walking pets in the residential area. She stated at the Advisory Board meeting, the applicants could give no times of operation; there is no parking; septic concerns were not addressed; and the owners did not seem to know what they would be doing. She stated something of this sort should have firewalls, etc. if they plan to bake and sell from the property; it is just a single-family home; and this is inconsistent with the neighborhood and the Comprehensive Plan.

Amy Tidd stated she did not vote for this item when it came before the Advisory Board; it did not meet two of the five criteria for commercial center; it is supposed to be more than one-half mile from the nearest commercial center, but is only .23 mile away from the closest center; and the surrounding neighborhood has to be a commercial area, but there is only one BU-1-A with everything else being residential. She stated the Advisory Board has always supported not running residential into business because there are many other places where businesses can go in the approved area; and the purpose of the Comprehensive Plan is to keep uses where they belong.

Mary Tees, Co-Chair of Port St. John for Tomorrow, stated she is a neighbor and received notice of this meeting. She stated the requested zoning is inconsistent with the Comprehensive Plan; it is spot zoning; the Small Area Plan said nothing was wanted but residential properties; and this is the third request, including requests for a pizza parlor and one for a gas station and convenience store. She stated when she moved to the neighborhood in 1991 she called the County and was assured this was a residential neighborhood; in 1990 American Bank tried to locate on the same property, but decided not to because they would have to sue every resident in order to change to commercial from residential; and in 1994 or 1995 Sunrise Lutheran Church bought property at Fay Boulevard and Adams Place, and had to file a class action suit because General Development listed that property as a civic organization sport, but that rezoning went through without complaint because it was a church. She read from Book 304, page 161, "Each and every of the lots, excepting, however Tracts A, B and shall be known and described as residential lots, and no structure shall be constructed or erected on any residence building lot other than a detached single-family dwelling not to exceed two stories and one or two-car garage." She stated this was from General Development and was listed in the deed books, "No obnoxious or offensive or noxious odors shall be carried on or upon any lot or shall anything be done thereon, which may become an annoyance and a nuisance to the neighborhood"; and this is an annoyance and nuisance. She stated her favorite paragraph is, "In the event of a violation or breach of any of these restrictions by any, or concern claiming through or under General Development, or by virtue of any judicial proceeding, General Development Corporation and the lot owners, or any of them, jointly or severally shall have the right to proceed at law or in equity to compel the compliance with the terms thereof and to prevent the violation or breach of any of them." She stated every civic organization in Port St. John will fight this; and if they have to go to court, they will take a class action suit. She stated they were promised this would be residential; it is listed in the Deed Books; the requested zoning is not in compliance with what is going on in the County now; and requested the Board deny the request.

Shelly Myers stated the property in question is in his backyard; and he lives with his wife and five of his nine children. He commented on his adopted children and previously being a foster parent to 106 children from August 1984 to June 2000; and stated having a bakery in the backyard will increase traffic, create problems for turning school busses, and be a major concern to children going to and from school. He requested the Board deny the request.

Ron Parker, Pastor of Port St. John Community Alliance Church, stated he lives on the corner of Fay Boulevard and Stillwater, which is one block down from the property that is the subject of the rezoning request. He stated he opposes it; it will change the way he lives; and he doubts any of the Commissioners would be in favor of a zoning change that affected their lifestyle, peace, and quiet. He stated Fay Boulevard and Grissom Parkway is a busy intersection; Fay Boulevard is a busy highway; and he cannot even back his car out on Fay Boulevard. He requested the Board deny the request.

William Bender stated this property has come up for rezoning numerous times and it has remained residential; Port St. John is a residential community and should be regarded as such; and Port St. John has taxed itself for improvements to make the community better. He stated when Fay Boulevard was widened, the community took an active role in trying to make it more attractive and safer; and the people would like to keep the community residential. He stated there are established commercial corridors within the community and on the fringe of the community; and business of this nature would be suitable in one of those locations. He stated the change would strictly be a business request, and not a quality of life request; and commented on the broad nature of BU-1 and the fact that it will stay with the property. He stated no site plans exist; there are no plans for hours of operation, signs, lighting, parking, or ingress/egress; and they do not know what type of modifications will need to be made to the dwelling. He stated there is no transition from business to residential in this area; and expressed concern that the change would cause the whole area to start changing to business. He stated the Kammermanns are good people and this is the classic American dream; but there is more than one dream at stake; and this is inconsistent with the community, which would like the property to remain residential.

Carmine Ferraro, representing Port St. John Tomorrow, stated he has been a resident of Port St. John for seven years, and has sympathy for the applicant because he has been in that position. He stated he is a licensed real estate broker and has knowledge of real property; and displayed maps showing existing vacant commercial land, with concentrations along Fay Boulevard, at the new Curtis Boulevard interchange, and along Kings Highway and U.S. 1; and advised there is even a vacant Wachovia Bank building available that could be utilized for commercial. He stated along Grissom Parkway there is a BU-1 tract, which is an example of what happened prior to the Port St. John Advisory Board being in effect; and they asked for the Advisory Board because they wanted more control over commercial zoning. He stated they are not opposed to commercial; but they are opposed to a bakery in that spot, and a Comprehensive Plan amendment that would create precedent for spot zoning in Port St. John. He stated the Board previously approved Node 4 of the Port St. John Parkway; that is an ideal spot for commercial business; the rezoning request did not meet the cluster criteria; and commercial development does better when it is massed with other commercial development and does not affect residential.

Helen Dezendorf, Vice President of the Port St. John Homeowners Association, stated she is a 21-year resident of Port St. John; and expressed concern that the lot in question is the first block not on a four-lane, median-divided highway. She stated it is only on a two-lane road; on the east side of the property, the ingress/egress would be out of the turn lane of Grissom Parkway; and everyone trying to go west on Fay Boulevard to take their children to school would be in the way. She stated on the other side is a two-lane road; she expressed concerns many years ago when the day care was given BU-1-A for the same reason; now it has been four-laned and is a little better; and advised of the traffic pattern for the day care with parents picking up and delivering their children between 6:00 and 7:30 a.m. and between 5:00 and 6:00 p.m. She stated traffic for a bakery would be constant; her biggest concern is that corner; and she cannot go anywhere without going to that corner. She stated the road at that location is not large enough to carry additional traffic; and there would be stopping required to get in and out of the building. She expressed concern about real estate agents who tell people they can do things that they cannot; and recommended the Board start looking at the real estate people who tell people they can get things rezoned in Port St. John because nobody cares.

Hans Saurenmann stated the people who spoke are all from the same group with the same cause; there are others in Port St. John who do not think the same way; and he can prove that. He commented on the Port St. John Feasibility Study and need for majority rule by the residents not the Homeowners Association or political leaders. He stated even if the Board denies the request, he hopes it will approve incorporating Port St. John; and stated then the Board will see different political leaders than today and a shift in political powers. He stated only a few people are here out of five to ten thousand households; the majority of the people go to work and want to have a peaceful life; and he wanted to bring that to the Board's attention.

Commissioner Colon stated she will not support the zoning change; one lady said people say go ahead and zone in Port St. John; but she thinks it is the opposite, because the citizens will take you on. She stated she wishes the rest of the community was like that to protect their quality of life; and if everyone did that, it would be an awesome county. She stated the group that spoke tonight is a very dedicated group; no matter how tired they are, they still take time to protect their community; and they should be proud.

Motion by Commissioner Colon, seconded by Commissioner Scarborough, to deny rezoning and Small Scale Plan Amendment for Item 1.

Commissioner Scarborough stated within the deed restrictions when the community was established, this is residential use; and deed restrictions are not enforced by the County, but by the land owners; however, the Board needs to be cognizant of how a community is developed. He stated for the Board to act contrary to deed restrictions is inviting litigation because it is creating an environment where there will be lawsuits from people enjoining the activity. He commented on the difference between BU-1 and BU-1-A zoning, the day care having a binding development plan, BU-1 needing Comprehensive Plan amendment, and creating a precedent, and BU-1-A being consistent within residential.

Chairman Carlson called for a vote on the motion to deny. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ZONING RECOMMENDATION OF THE AUGUST 23, 2001 NORTH
MERRITT ISLAND DEPENDENT SPECIAL DISTRICT BOARD MEETING

Chairman Carlson called for the public hearing to consider zoning recommendation of the North Merritt Island Dependent Special District Board meeting, as follows:

Item 1. (NMI10703) Teen Missions, Inc.'s request for change from AU to RVP with removal of existing CUP for a Temporary Security Trailer on 20 acres located on the south side of East Hall Road, approximately 260- feet west of Savannahs Trail, which was recommended for denial by the North Merritt Island Dependent Special District Board.

The item was withdrawn by the applicant.

Commissioner O'Brien stated there is a letter from Robert M. Bland, Director dated August 30, 2001 requesting the item be withdrawn.

Item 14. (Z0108405) Richard Lee Beattie's request for change from AU and BU-1 to BU-2, and Small Scale Plan Amendment to change the Future Land Use Map designation from Neighborhood Commercial to Community Commercial, on 4± acres located on the south side of SR 520, approximately 950 feet west of Lake Poinsett Road, which was recommended for approval by the LPA, and for approval by the Planning and Zoning Board with a BDP as offered by the applicant.

Wayne Gandy, PE, Law & Associates, Inc., representing Richard Lee Beattie, stated the request is to go from BU-1 and AU to BU-2. He stated they were before the Board earlier this year and were denied with a much more intensive development plan; and Mr. Beattie has come back with the intent of developing one piece of the property, approximately five acres in the northwest corner of the 15 acres, for a moving and storage warehouse. He stated it will strictly be a moving and storage warehouse with the front portion to be office, which will remain in the existing BU-1 zoning; and that goes back approximately 110 feet. He stated the existing BU-1 goes back to a depth of 300 feet; and they are asking for a change for the remaining portion that goes back approximately 400 feet for a warehouse, pavement, and retention pond. He stated as the Board can see from the sketch he has provided, the warehouse only goes back for an additional 170 feet behind the 110 feet of office area; and office, parking, and landscaping will go in the front. He stated to the east are 375 feet of property that will remain as an existing wetland open space, which will serve as a buffer to the residential property to the east. He stated to the south, there are approximately 430 feet in the exact western portion of the property; and there are a remaining 200 feet of buffer zone to the south. He stated Mr. Beattie is looking to develop approximately 34% of his property, leaving the remaining 66% of the site as open space; and they have submitted a draft binding development agreement to staff for review and approval, which will run with the property. He stated his only intent for the property is to develop a moving and storage warehouse; Mr. Beattie has an existing business on Ellis Road and recently bought a Mayflower facility, so he is running out of room; and this moving and storage warehouse will have all activities in the warehouse portion with no activities outside. He stated they are proposing a 25-foot landscape buffer on the western side; there is an existing retention pond on the southern portion of the western side of the site; and the northern portion or front 300 feet is zoned agricultural and is vacant. He stated most of the land in the area right now is vacant; there is a precedent approximately 500 feet to the west for BU-2 zoned property that is behind approximately 110 feet of BU-1 zoning; and with the widening of SR 520, the area will be a magnet for commercial development. He stated with the existing BU-1 zoning on the property, Mr. Beattie could develop a strip mall; but his intent is to do a state-of-the-art moving and storage facility. He stated he is anticipating approximately seven tractor-trailer vehicles per day; so as staff has shown, it will not degrade the level of service on SR 520. He stated with the widening of SR 520, access, circulation, and traffic are going to be improved. He stated they have submitted a binding development plan; they were unanimously approved by the Planning and Zoning Board; and they request the Board's support for the rezoning of the property.

Charles Parrish stated he has lived on his property since 1977; when he moved there, it was dark, but now he could drive there without headlights; and the area seems to only be good for landfills, power plants, and now moving warehouses. He stated the cockaded woodpecker and scrub jays inhabit that area; they are in his yard; and the land, which is lower than his land, is in the floodplain. He commented on trees being removed in the past two years, and the County becoming concrete from the river to the beach.

Mr. Gandy stated they had a jurisdictional done by BKI Consultants, which is an environmental consultant; they came to the site, walked the site, and identified existing wetlands, endangered species, etc.; and there are several wetland areas on the property. He stated the development plan has been designed to stay outside of the wetland area; and that includes the retention pond that is on the southern portion of the site. He stated that pond has been designed to go around the wetlands; and no endangered species have been identified on this project. He stated approximately 64% of the site will remain untouched; there are a good number of trees on the site; and the site has been found to be entirely outside of the floodplain. He stated they propose to help the wetlands, help the existing vegetation, and not cause any harm.

Chairman Carlson inquired what is the total acreage; with Mr. Gandy responding approximately 14.7 acres. Chairman Carlson inquired what part is expected to be developed; with Mr. Gandy responding approximately five acres in the northwest corner, and they are leaving approximately 3 to 4% of the development in open space, pavement, or retention pond. Chairman Carlson stated she met with the applicant; they have made considerable improvements to the site plan since it was denied; they are getting out of all the wetlands including the retention pond to the south; they have increased the buffers; and she does not have a problem with it as it is now, but would like to address the binding development plan.

Commissioner Higgs stated she met with Mr. Beattie and Mr. Gandy; and their comments tonight are consistent with what they explained to her.

Chairman Carlson inquired if a binding development plan was submitted besides the draft that is included in the package; with Mr. Gandy responding that is what was submitted. Chairman Carlson stated in terms of buffering, there is 375 feet to the east, 200 feet to the south, and 25-foot landscape buffer; and she would like to see those in a binding development plan specifically.

Commissioner Scarborough stated there is a binding development plan; and inquired if it is possible to use it as a binding site plan, locking the site into the depiction that was given. Mr. Gandy responded it has not received final approval from FDOT, nor has it received approval from staff as of yet; there may be a little tweaking necessary; and inquired if this is included, and they have to make changes, how will that impact the approval. Commissioner Scarborough stated it would be necessary to come back to the Board. Commissioner Scarborough stated he is at a disadvantage when he is given a document and assumes this is what is going to happen, because it is just what may happen; and that is why it is important that the binding development plan reflect what will actually happen as much as possible.

Commissioner Higgs inquired if there is some way to have a binding site plan with the exception of minor amendments. Commissioner Scarborough stated it could be except as alterations are required by FDOT or Brevard County staff; and that would mean it would not be at their discretion but that something was mandated. Richard Beattie indicated he can accept that.

Commissioner Colon stated she understands Mr. Parrish is against the project, but it looks like it might go forward; and inquired if there is anything regarding a buffer or anything else he would like to bring forward. Mr. Parrish stated most of the property is wooded; and he would like to save the wooded part. Chairman Carlson advised the applicant is preserving a large area; they are only developing five of the 14 acres; so nine acres will be going into conservation, which will be put in the binding development plan. Mr. Parrish stated the runoff from concrete will flow on his property; and they will conserve the land behind it. Commissioner Colon inquired if Mr. Parrish does not want to be able to see the development; with Mr. Parrish responding he does not want to see it, and hear or smell trucks going in and out. Commissioner Colon stated those are legitimate concerns. Mr. Beattie inquired where Mr. Parrish is located; with Mr. Parrish pointing out his property on the map. Chairman Carlson stated Mr. Parrish is across SR 520 to the west of the property. Mr. Beattie stated he is willing to give up ten acres of prestige property and leave it intact because there are approximately 30 to 40 water oaks on it that will stay.

Commissioner Scarborough stated Mr. Parrish does not want to see SR 520 become a lot of concrete and open space; and inquired if all the vegetation will be cut down on the front side of SR 520 or will there be a vegetative buffer such that if someone drives along SR 520 they will not see the property except for the curb cuts. Mr. Beattie responded there will be a landscape buffer on the north side of the building; but he does not know about being able to see the building. Commissioner Scarborough stated Mr. Parrish would still like to see green across SR 520; and suggested moving some of the green to the SR 520 area and moving the project back.

Mr. Gandy stated there will be a ten-foot landscape buffer along the front. Commissioner Scarborough stated there is nothing dense enough to buffer in ten feet. Mr. Gandy advised on the front of the building will be a glass façade that will reflect the greenery coming from that landscaping; and it will not give the appearance of a warehouse. Commissioner Scarborough stated if it was 50 feet, there would be the potential of having dense enough vegetation. Chairman Carlson stated she understands Mr. Parrish's concern; but the applicant has given up a considerable amount of property already; and to add an additional 50 feet to the front is going overboard. Commissioner Higgs stated they are trying to keep the expansion of the mixed use district to the least amount, but if the building was dropped back a little, and the mixed use district went back a little further, more vegetation could be saved. Commissioner Scarborough stated it is a big site; and buildings, regardless of how nice they are, never make up for loss of greenery. Commissioner Higgs suggested working through the site plan with staff to see if the building could go back a little more and the mixed use district be increased to accommodate that.

Mr. Gandy presented a depiction of the site showing the existing wetlands; stated there is a node of wetland in the southwest corner of the proposed development parcel; and if the building was pushed back further, it would encroach on the wetland, which they want to avoid if at all possible. He stated in looking at what was available on the site, they have already pushed within that area of existing wetlands, knowing it is a priority to not only save existing vegetation but also to stay outside the wetlands; and what they have is an optimized site plan in terms of where they can locate things on the site. He stated there may be an opportunity to lose a little in the back, but probably only ten feet before they start encroaching into the wetland.

Chairman Carlson inquired if it can be brought east and down. Commissioner Scarborough suggested angling it between the two wetlands.

Mr. Gandy stated a 20-foot buffer is a very considerable buffer; and even if they added another 30 feet, the building is still going to be somewhat obvious. He stated they can push it back ten feet without having to start shifting all over the place in terms of making the site plan work.

Chairman Carlson inquired if they can do a 20-foot vegetative buffer; with Mr. Gandy responding he thinks they can.

Commissioner Colon stated if the applicant is able to do that, it would be great; but the key thing is how it will look from SR 520. She stated what has happened in the community is not acceptable; the Board has been trying to protect and beautify the County; and if the applicant can help, the Board would appreciate that. Mr. Beattie stated he understands that; and if the engineering can work with the buffer up front, he has no problem with it.

Mr. Gandy inquired about giving up parking spaces; with Commissioner Higgs responding that cannot be done.

Commissioner O'Brien stated the Board is pushing too far on this because just to the east of this site is mobile home sales and McDonalds, across the street is a bar, and Astro Stadium is on the corner; they have already said they will put up a vegetative buffer and a good looking building; and this is a step up for the entire neighborhood. Mr. Beattie stated it is a state-of-the-art building; it will not look like a box; there will be a glass front with professional landscaping; and there is nothing else in the area like that.

Commissioner Colon stated if Commissioners in the past had not allowed that kind of development, the Board now would not be trying to defend, protect, and beautify the community.

Motion by Commissioner Scarborough, to approve Item 14 with a binding development plan with a 20-foot opaque landscaped buffer in the front; reference to Site Plan with opportunity for amendments as required by FDOT and County staff; and adopt an Ordinance amending Article III, Chapter 62, of the Code of Ordinances of Brevard County, entitled "The 1988 Comprehensive Plan", setting forth the Sixteenth Small Scale Plan Amendment of 2001, 01S.16, to the Future Land Use Map of the Comprehensive Plan; amending Section 62-501 entitled Contents of the Plan; specifically amending Section 62-501, Part XVI (E), entitled the Future Land Use Map Appendix, and provisions which require amendment to maintain internal consistency with these amendments; providing legal status; providing a severability clause; and providing an effective date.

Commissioner O'Brien inquired if the binding site plan will be applicable to anyone applying for a building permit on either side of them moving down the road to the stadium. Commissioner Scarborough responded the Board can make that applicable because it is setting a precedent. Commissioner O'Brien recommended it be applied consistently. Commissioner Scarborough stated it should be; a lot of money is being put into four-laning SR 520; it is the entrance to Cocoa and Rockledge; and there is a lot of civic pride in the fact that it is going to be four-laned. He stated there is landscaping on the other side of I-95 and he sees nothing wrong with this. Commissioner O'Brien stated it will have to be included for all future businesses applying for permits from I-95 to the St. Johns River. Chairman Carlson agreed it needs to be consistent. Commissioner Scarborough stated this one should be done first; with Commissioner O'Brien advising he does not like doing this one first, and then not going with the second one.

Commissioner Higgs inquired if they are doing the 20 feet in front, does the mixed use district have to have an additional 20 feet. Chairman Carlson stated staff is going to work that out. Mr. Enos advised the legal description is already fixed, so if they are going to find an additional ten feet within the site plan, in order to move back ten feet, it will require a re-advertisement. Commissioner Higgs noted the retention pond does not have to be in the mixed use district; with Mr. Enos advising that is correct. Commissioner Higgs inquired if that helps; with Mr. Enos responding he does not know. Mr. Beattie stated Mr. Gandy advises he can give another ten feet. Commissioner Higgs commented again on the retention pond not having to be in the mixed use district.

Chairman Carlson stated the review worksheet says four plus/minus acres; they are at approximately five acres; and inquired what is the zoning of the whole site; with Mr. Enos responding the application is for the whole site except for the north 110 feet, which will remain BU-1; and the remainder of the site as advertised would go to BU-2, unless the Board excludes the south 170 feet, which is the retention pond. Commissioner Higgs stated there is some value in not expanding the mixed use district any further back than needed; the retention pond can be outside the mixed use district; and she is not sure how deep the mixed use district needs to be. Commissioner Scarborough recommended adding, "not included in the mixed use district is the retention pond." Mr. Enos stated they could go to a depth of 430, which would exclude the south 170 feet. Commissioner Scarborough stated that will be included in the motion. Commissioner Higgs inquired if that takes in the additional ten feet on the front; with Mr. Enos responding affirmatively.

Motion restated by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Item 14 with a binding development plan with a 20-foot opaque landscaped buffer in the front; mixed use district to a depth of 430 feet, excluding the south 170 feet; reference to Site Plan with opportunity for amendments as required by FDOT and County staff; understanding that the retention area does not have to be in the mixed use area; and adopt an Ordinance amending Article III, Chapter 62, of the Code of Ordinances of Brevard County, entitled "The 1988 Comprehensive Plan", setting forth the Sixteenth Small Scale Plan Amendment of 2001, 01S.16, to the Future Land Use Map of the Comprehensive Plan; amending Section 62-501 entitled Contents of the Plan; specifically amending Section 62-501, Part XVI (E), entitled the Future Land Use Map Appendix, and provisions which require amendment to maintain internal consistency with these amendments; providing legal status; providing a severability clause; and providing an effective date. Motion carried and ordered unanimously.

LETTER TO DEPARTMENT OF COMMUNITY AFFAIRS, RE: PROPOSED SATELLITE
BEACH COMPREHENSIVE PLAN AMENDMENT

Chairman Carlson stated the City of Satellite Beach has submitted a Comprehensive Plan amendment for the South Patrick housing area that increases the number of units by 366; the City is proposing to offset this increase by reducing density on properties that are already developed; and requested the Board direct staff to prepare a report and draft a letter to the Department of Community Affairs expressing the County's concern about the increase in residential units. She stated the deadline for the submittal of the letter to DCA is September 18, and she would like to get it back for the Board's review on September 11, 2001.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to direct staff to prepare a letter to the Department of Community Affairs expressing concern about the proposed Satellite Beach Comprehensive Plan Amendment to increase residential units in the South Patrick housing area, and return it to the Board for review by September 11, 2001. Motion carried and ordered unanimously.

DIRECTION, RE: MODIFICATION OF LANDSCAPING ORDINANCE

Commissioner O'Brien inquired about another motion for other properties on SR 520; and what is going to be done about that.

Commissioner Scarborough stated the Board works with one developer on additional green buffers; there are already a lot of activities in the SR 520 area with the four-laning; and inquired if the Board should address that in terms of someone else coming into that area. Zoning Official Rick Enos suggested the best place to do that is in the Landscape regulations; that way it is not a zoning issue, which would only touch those who come through zoning; and it would apply to all new development, including those who have their zoning, but the properties are vacant.

Commissioner O'Brien stated it has to be equal and fair. Assistant County Manager Peggy Busacca advised staff was directed to amend the Landscape Ordinance to deal with heat islands and those kinds of things, so this can be included for the Board's consideration.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to direct staff to prepare amendments to the Landscaping Ordinance to address buffering, and bring them before the Board for consideration. Motion carried and ordered unanimously.

Commissioner O'Brien inquired if that would be on SR 520 exclusively; with Commissioner Scarborough suggesting it should be expanded to other areas that are similarly situated. Commissioner Higgs recommended trying SR 520 first and keeping it focused.

STAFF DIRECTION, RE: REPORT FROM SCHOOL BOARD

Commissioner Higgs stated staff indicated the Board would be getting a report from the School Board at the end of the month; the only time the Board has to discuss the item, as opposed to a specific application, would be at the October 2, 2001 meeting; and requested staff bring that back with a report on the options and alternative applications of the school issue and the Comprehensive Plan so the Board can discuss it prior to the zoning meeting where it will potentially be applying it.

Motion by Commissioner Higgs, seconded by Commissioner Colon, to direct staff to bring the School Board report to the Board with options and alternative applications of the school issue and Comprehensive Plan prior to the October 4, 2001 zoning meeting. Motion carried and ordered unanimously.

Upon motion and vote, the meeting adjourned at 8:59 p.m.

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ATTEST: SUSAN CARLSON, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA
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SCOTT ELLIS, CLERK

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