April 5, 2001

The Board of County Commissioners of Brevard County, Florida, met in regular session on April 5, 2001, at 5:32 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Sue 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 Commissioner Jackie Colon, District 5.

Commissioner Nancy Higgs led the assembly in the Pledge of Allegiance.

REPORT, RE: BASEBALL

Commissioner O'Brien stated the New York Yankees won today, 1-0.

Commissioner Colon stated she threw out the first pitch at the game between the New York Mets and the Florida Marlins; and displayed a picture of her and New York Mets Manager Bobby Valentine.

AUTHORIZATION TO CONSTRUCT CERTAIN PIPING IMPROVEMENTS, RE:
CHAIN-OF-LAKES STORMWATER PARK PROJECT

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to determine that allowing Road and Bridge to construct certain piping improvements for Phase I of the Chain-of-Lakes Stormwater Park Project is in the best interest of the County. Motion carried and ordered unanimously.

REPORT, RE: CONSULTANT FOR REDISTRICTING

Chairman Carlson stated there has been some investigation into the cost of a consultant to assist with redistricting; and requested Ms. Busacca provide some feedback. Assistant County Manager Peggy Busacca stated staff contacted Duval County-Jacksonville, which has decided to go with a consultant at a cost of $250,000; the lowest estimate they received was $98,000, and that person was not awarded the proposal; and staff has calls into six other counties to see what their redistricting efforts are estimated to cost.

Commissioner Higgs inquired if Ms. Busacca got a scope of service; and advised that may be a better way of evaluating. Ms. Busacca advised the scope of services was relatively

straightforward; the consultant would put together the proposed districts, meet up to six times with the committee or board to make a final recommendation, and assist with the legal process to get the redistricting finished. Commissioner Higgs requested staff provide those costs and scope of service to the Commissioners so they can be evaluated; with Ms. Busacca responding she would be happy to do so.

Chairman Carlson stated she had no idea it might cost that much; and requested staff put together different alternatives.

Ms. Busacca stated Supervisor of Elections Fred Galey indicated to the County Manager an interesting in participating in the redistricting effort, and perhaps heading up the effort, working with the committee. Chairman Carlson stated staff will bring back information to the Board.

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATIONS OF
JANUARY 8, 2001 AND FEBRUARY 5, 2001

Item 1. (Z0101303) Evalena T. and John Johnson's request for change from GU to AU on 6.5± acres located on the west side of Fleming Grant Road, approximately 1.01 miles south of Wilden Road, which was recommended for approval by the Planning and Zoning Board. Withdrawn by Applicant.

Item 2. (Z0102103) Conard L. Richardson's request for change from AU to RRMH-1 on 1.10 acres located on the west side of Weatherly Place, approximately 580 feet south of Breckinridge Avenue, which was recommended for approval by the Planning and Zoning Board.

Commissioner Scarborough inquired if the applicant is present; with no response heard. He stated there are several tabled items in the Satellite Boulevard area; and the reason for tabling them was to make sense out of the floodplain issue. He stated even though the property is platted, it is platted in a manner that is inconsistent with what the Board would normally think of as a plat; normally a plat has public roads; and there is a problem with how to have public roads and infrastructure in this area. He stated the Board has not resolved anything; Ms. Busacca has been trying to bring the area back into the norm with other areas; and if the Board is going to deal with the tabled items, it will have to define where it is going with the Satellite Boulevard issues.

Chairman Carlson inquired if Ms. Busacca sent a report on this issue. Assistant County Manager Peggy Busacca advised a report on floodplains was sent to the Commissioners; it discussed several options the Board could pursue in looking at development practices within the floodplain area; but it was not specifically tailored for West Canaveral Groves although the issues in that are were a part of it. She stated there is always concern about grandfathering, whether the lots have been platted, and that sort of thing; and it was a general report on development practices within a floodplain.

Commissioner Scarborough stated until the Board adopts a policy, it will probably approve the items as they come back in the next month; since Mr. Richardson did not appear tonight, it is his inclination to table the item and handle it when everything comes back; and the Board has talked about solving the problem, but has not solved it yet.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to table Item 2 to May 3, 2001 Board of County Commissioners meeting.

Commissioner Scarborough suggested staff notify the applicant that if he is not present at the next meeting, there may be an inclination to deny his request.

Commissioner O'Brien stated the Board has tried to come up with a solution, but has not found one yet; and inquired if the Board wants to formulate some kind of policy. Commissioner Scarborough stated the burden is on the Board to establish a policy or it will continue in the same mode even though it may not be happy with the mode; and until the Board develops a policy, it is going to be hard. Commissioner Higgs stated the Board is going to bring back the overall issue as an agenda item.

Chairman Carlson stated the tabled items are coming to the Board in May; and inquired if the issue will be put on the agenda prior to that; with Commissioner Higgs responding absolutely. Commissioner Scarborough stated it could be tabled again, but people are going to start inquiring how long it can be tabled; and the Board may want to approve the items that have been in the works because there is no basis to continue to table, as there is no moratorium. Commissioner O'Brien stated there is a night meeting on April 17, 2001; and the Board may want to ask the County Manager to put an item on the agenda for moratorium to start to solve the problem. Commissioner Higgs stated the Board needs to talk about an array of options before the zoning items come back and decide what it wants to do; but right now there is a motion and second on the floor to table which precludes discussion.

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

Chairman Carlson stated staff can put an agenda item together for April 17, if that is appropriate.

Commissioner Scarborough stated the Board needs to get something it can discuss; staff has put information together and there are certain options; but staff is looking for the Board to indicate which direction it wishes to go.

Ms. Busacca stated she would be happy to put together an agenda item specifically on West Canaveral Groves; but cautioned the April 17 agenda already includes the Pineda Extension and the Valkaria Airport Capital Improvements Plan, so it may be a long evening. She advised the next meeting is April 24.

Chairman Carlson stated April 24, 2001 would be best; and it should not just be Canaveral Groves but throughout the County because the policy will be applied Countywide.

Commissioner Scarborough stated there are several issues that are overlapping; one of the concerns is the plat; advised of attempts to get County rights-of-way; and noted normally a plat is something more definitive where public rights-of-way exist. He stated the issue is whether the Board wants to go into floodplains; there are certain rules for floodplains where density would be much less than the Board allows; there are also special rules in Canaveral Groves, which were first developed to bring people into conformity, but have evolved into a methodology where people are developing under a set of rules that are unique to one area of the County; and the Board does not want to have certain areas with unique development rules.

Chairman Carlson stated staff will bring the issue back on April 24, 2001.

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATIONS OF
MARCH 5, 2001

Chairman Carlson called for the public hearing to consider recommendations of the Planning and Zoning Board (P&Z) made at its March 5, 2001 meeting, as follows:

Item 1. (Z0103301) Jimmie and Louise W. Albritton's request for change from AU to RR-1 on 1.167 acres located on the west side of Brabrook Avenue, approximately 0.15 mile south of Sand Point Road, and approximately 0.34 mile north of Berry Road, which was recommended for approval by the Planning and Zoning Board.

Jimmie Albritton stated the request is for the property to be rezoned from AU to RR-1.

Motion by Commissioner Higgs, seconded by Commissioner Colon, to approve Item 1 (Z0103301) as recommended. Motion carried and ordered unanimously.

Item 2. (Z0103302) Clyde G. and Dorothy Joan Beatty's request for change from AU to RR-1 on 1.0 acre located approximately 198 feet south of Mount Pleasant Avenue, approximately 650 feet west of Main Street, which was recommended for approval by the Planning and Zoning Board.

Clyde Beatty stated they only want to zone one acre out of the five acres; and displayed plans to the Board. He stated his daughter has not been well and needs a place to live; and pointed out the house she is currently living in and the area where she intends to build a new house. He stated it should take one year to build the house; once it is completed, the old house will be torn down; and there will still only be two houses on the whole five acres. Dorothy Beatty stated there is no intention of selling the property; but staff advised this was the only way they could let their daughter have the land. Mr. Beatty stated the house has to be in the five acres in order for them to live there while they build a new house. Ms. Beatty described the area; and advised they built the road. Mr. Beatty outlined the parcels and sales in the area; and pointed out the parcels on the map. Ms. Beatty reiterated they have no intention of selling any other part of their land; but they are both in their 70's; and if they decide to sell their house with the land around it, it will be worth more if there is more land. Mr. Beatty advised he spoke to Commissioner Higgs by telephone.

Commissioner Higgs stated the fact that the Beattys have almost five acres should allow staff to handle a splitting of the property so there could be two parcels in the AU classification. Zoning Official Rick Enos advised there is an administrative waiver process where a parcel can be undersized by as much as 10%; that requires the property owner to get signatures from surrounding property owners; and if the Beattys can secure those signatures, staff can administratively approve one of the lots to be as little as 2.25 acres.

Dorothy Beatty stated she would like to split out just one acre because they may need money in the future for hospital bills; and the more land they have, the more they can borrow. Mr. Beatty advised he does not want to sell the property. Ms. Beatty stated her daughter has no place to live; and explained her health and economic situation. She stated until three months ago, they thought the house was grandfathered; and if the rezoning is not approved, her daughter will have to move in May. Mr. Beatty advised of costs incurred for the survey and application fee; and stated he only gets $500 a month to live on. Ms. Beatty advised she gets $238 a month and she works.

Commissioner Higgs stated she is not interested in doing anything that would extend further cost to Mr. and Ms. Beatty; but she has concerns. She stated the zoning in the surrounding area is predominantly AU; she cannot recommend approval tonight; and suggested tabling the item to give her and staff a chance to work with the applicants to see if there is another way to do this without compromising the zoning in the area.

Mr. Beatty advised the zoning in the area is already one acre; and pointed out his property on the map. Ms. Beatty stated she understands that the Board does not want everyone to suddenly have RR-1. Mr. Beatty stated there will still only be two houses on the five acres.

Commissioner Higgs stated staff can hold any other action regarding the house in abeyance if the item is tabled and the Beattys are willing to work with her; and there would be no additional cost or consequence. Mr. Beatty stated if this is not settled in 30 days, his daughter will have to move out of the house; with Commissioner Higgs advising as long as this is pending before the Board, Code Enforcement activities can be abated.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to table Item 2 (Z0103302) to May 3, 2001 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Commissioner Higgs stated her office will call the Beattys to set up a meeting.

Item 3. (Z0103303) Leonard Dean Hearndon and Ridge Automotive, Inc.'s request for Small Scale Plan Amendment to change land use designation from Residential to Mixed Use District on the Future Land Use Map and change from GU to BU-2 on 0.71 acre located on the southeast corner of Evernia and Main Streets, which was recommended for approval by the LPA and Planning and Zoning Board.

Leonard Dean Hearndon stated he is a partner and owner of Ridge Automotive, Inc.

Commissioner Higgs inquired if Mr. Hearndon is aware that there are significant wetlands on the property. Mr. Hearndon responded yes, on the south side; and they have not done a wetlands survey, but know they will have to.

Mike Cunningham, representing the Village of Micco, advised once the criteria are met, the surveys are done, and the permits are issued, they are 100% in favor of the project. Commissioner Higgs stated the Board has a policy that says no commercial or industrial development in wetlands; but the Board is being asked to provide commercial zoning and establish a mixed use district; and inquired if that is incompatible with the Comprehensive Plan. Zoning Official Rick Enos responded the way the land development regulations are applied now is that the parcels that may have wetlands would be required to have a wetland determination done at the site plan stage; and if a parcel were entirely zoned commercial, then only the portion of the property that was not wetland would be permitted to be developed. Commissioner Higgs inquired about the new Comprehensive Plan language regarding new zonings of commercial/industrial land in wetlands. Planner Todd Corwin advised the new language that was part of the Stipulated Settlement Agreement that became effective in January, 2000 states, "commercial and industrial land development activities shall be prohibited in wetlands contained in properties designated on the Future land Use Map as commercial and industrial after February 23, 1996." Mr. Corwin stated if there is a new commercial or industrial use after the 1996 date, development activities are prohibited; but if there was a mixed use district prior to that date, the individual could develop as long as certain criteria were met. Commissioner Higgs stated the language does not clearly say that the Board may not put a commercial/industrial land use designation on wetlands. Mr. Corwin stated if the site was such that it totally precluded commercial/industrial development, that could be a basis for denial of the land use, although he does not know in this particular instance.

Assistant County Attorney Eden Bentley stated the phrase "land development activities" has typically been geared toward site plans because then there is more information on the site; and in a situation were there is a parcel that is 100% in the wetlands, staff is not so concerned that it does not have enough information to tell whether or not the site could be configured in a way to allow development and not impact wetlands. Chairman Carlson inquired if based on the new language, would it be prudent to get wetlands determinations prior to items coming to the Board; with Ms. Bentley responding the Board can do that. Commissioner Higgs noted Natural Resources estimated 50% wetlands. Commissioner Carlson expressed concern about the reliability of the wetland maps; and commented on getting wetlands determination prior to coming to the Board to save the applicant and the County time and money. Ms. Bentley advised given the language of the Comprehensive Plan that can be done legally.

Commissioner Colon stated there are a lot of recommendations and information; and inquired if that was shared with the applicant. She commented on the incompatibility of the BU-2 class with neighboring residential zoning patterns; stated the Board may find BU-1 more suitable on those portions of the property that are outside the wetlands areas; and inquired about feedback on the different classifications. She stated she wants the result to be a happy medium, and protect Mr. Hearndon's rights as well. Mr. Hearndon advised the only feedback he got was at the Planning and Zoning Board meeting when BU-1 was discussed; but because of the parking and storing of vehicles and the type of business he has, he needs BU-2. Commissioner Colon suggested a survey to show what is on the property as far as wetlands. Mr. Hearndon stated he does not have a wetlands survey; he has a survey of the property, which does not show wetlands; and described his meetings with environmental staff. He stated he bought the property to the south of his, which is 50% to 70% in a wetland; he has no intentions of developing it; and his only reason for buying it was because of a right-of-way problem. Commissioner Colon stated the Board would like to do something to have a happy outcome; but there are procedures that have to be followed.

Commissioner O'Brien stated this is the wrong forum to be deciding whether Mr. Hearndon's property is wet or not; the Board has a policy which says no net loss to wetlands; staff can work with Mr. Hearndon to define what pieces are wet; and at that time Mr. Hearndon can start making decisions based on what he can and cannot do on the property. He stated Mr. Hearndon has asked the Board to move forward to rezone the property BU-2; all of the adjacent properties are also BU-2 except for RRMH-1 on the west side; and this is a zoning, rather than an environmental issue. He stated if Mr. Hearndon came back to get a permit to build a parking lot, staff would say he could not do that because there can be no net loss of wetlands; and that would be proper forum for it. He stated it is not appropriate for the Board to say no tonight because there may be some wetlands, or require Mr. Hearndon to have a wetlands survey prior to having a zoning decision made.

Commissioner Higgs stated the Board is being asked to do two things tonight; one is to establish the mixed use district west of the Florida East Coast Railroad and south of Micco Road; that mixed use district does not exist at this point, so there are some unique features to discuss; and there is new language in regard to wetlands, and she wants to be sure the Board is establishing a consistent method of dealing with new commercial/industrial uses. She stated another issue is zoning; and commented on the compatibility matrix, which indicates BU-2 is probably compatible with GU and strongly incompatible with the remaining classifications. She stated the surrounding properties are TU-1, RRMH-1, GU, and Mr. Hearndon's BU-2 properties that go to the east; and those properties are old BU-2 established uses that will give Mr. Hearndon a foundation from which to have mixed use district. She stated the Comprehensive Plan talks about that as a factor for the establishment of other commercial and mixed use districts; but she has a concern about putting BU-2 and a new mixed use district against a residential use to the west, given the issues of incompatibility and wetlands; and additional work needs to be done in terms of a binding development plan and Board policy as to how to handle proposals for commercial and industrial in wetlands. She suggested the applicant work on a binding development plan that would indicate how to deal with the wetlands and incompatibility to the west in a way that the Board would believe that the mixed use district should be established in the area. She stated she would then ask the Board to consider the mixed use district for the applicant's other two properties that are established to the west of the FEC Railroad; so there are issues that go well beyond this. She stated Mr. Hearndon's request may be a reasonable use given the historical nature of Mr. Hearndon's uses; but the Board should not ignore the current wetlands policy, nor should it ignore the incompatibility, which the staff has outlined. She stated she hates to table, but additional work needs to be done, and otherwise her motion would be to deny.

Commissioner Scarborough inquired if the Board can approve a zoning of a property, and if the wetland issue steps in, back out of the zoning because it would render the land unusable. He inquired if the Board is potentially making it necessary to come back and go through a whole rezoning again to back out of the zoning. Mr. Enos stated it is not prudent to zone properties commercial that have a substantial amount of wetlands; and the problem is twofold, how to define substantial and whether half of the property can be developed commercial. Commissioner Scarborough stated the Board would probably want to assist the applicant to back out of the zoning; and inquired if there is a way to do a conditional approval; with Ms. Bentley responding no. Commissioner Scarborough commented on going through the zoning process and ending up with less than you started with, and having to rezone again. Chairman Carlson stated there is still a GU use on the property; and there are a lot of things that are applied to GU. Commissioner Scarborough stated the Board needs to look beyond that; it is simple to say yes, and then take the next step later; but the Board needs to understand that the applicant has specific desires, and it is leading a person on to approve knowing there are issues he will have to confront very shortly.

Commissioner O'Brien stated no matter how it is zoned, it will face the same thing because the rule is no net loss. Chairman Carlson stated that is for commercial, not residential. Commissioner O'Brien noted it still says no net loss; with Chairman Carlson advising that is out of the Board's hands. Chairman Carlson stated if it is zoned BU-1, the applicant is aware of the law in the County concerning conservation of wetlands; and if he hits those problems, it is between the applicant, DEP, and the County's environmental staff, but not the Board.

Commissioner Higgs stated the Board has to distinguish between its policies in residential areas and commercial areas; and the policies are different regarding wetlands. She stated she does not want to focus only on the wetlands; the Board needs to focus on the land use designation of the mixed use district which it would be establishing if it moved forward to the west of the FEC Railroad and south of Micco Road; that would be putting what staff describes as an incompatible use against residential without any buffering provisions; and she has rarely seen the Board approve an incompatible use against a residential use without some plan to accommodate the incompatibilities and protect the residential neighborhood. She stated she is willing to discuss this further; she recognizes some of the concerns; but the applicant has not brought a plan to the Board to protect the residential area to the west.

Commissioner Colon stated she supports the project and does not want it to fail; and she would support a motion to table the item. She stated once staff and the applicant do some research, they will be able to come up with something; and she hopes the rest of the Board is as optimistic.

Mr. Hearndon stated he has no objection to tabling the item; he has a preliminary site plan done; and he will get the environmental survey and study that need to be done to make sure he can continue.

Commissioner Higgs stated if the item was tabled, Mr. Hearndon could meet and talk about his plan to protect the neighborhood to the west, and how the Board will deal with the issue in the future. Mr. Hearndon stated he has a 50-foot right-of-way that he is not messing with and a 60-foot FPL easement between his property and the neighbors to the west; and that can be discussed.

Motion by Commissioner Higgs, seconded by Commissioner Colon, to table Item 3 (Z0103303) to the May 3, 2001 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Commissioner Higgs requested additional insight from staff on how the Board is going to handle the wetland issues when there is proposed commercial/industrial so it will be consistent. Assistant County Manager Peggy Busacca inquired if that would be a separate agenda item; with Commissioner Higgs responding that would be helpful because it does not apply only to Mr. Hearndon.

Chairman Carlson stated the Board needs to discuss the different scenarios.

Item 4. (Z0103401) Brevard County Board of County Commissioners, on its own motion authorized administrative rezoning on property owned by D.S.E. of Brevard, Inc. pursuant to Future Land Use Policy 10.2, in initiating a change from BU-2 and IU to BU-1 on 10 acres located on the east side of Grissom Parkway, approximately 0.85 mile south of Canaveral Groves Boulevard, which was recommended for approval by the Planning and Zoning Board.

Chairman Carlson inquired if the site plan has already been approved with no cuts along Wickham Road, and access off Welty; with Zoning Official Rick Enos responding that is correct.

Commissioner O'Brien inquired why is the County applying for the rezoning instead of the owner of the land; with Mr. Enos explaining the provisions of Policy 10.2 of the Future Land Use Element of the Comprehensive Plan.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to approve Item 4 (Z0103401) as recommended. Motion carried and ordered unanimously.

Item 5. (Z0103402) Roger and Mary Cynthia Garrett's request for change from GU and BU-1 to BU-2 on one acre located on the south side of Virginia Avenue, approximately 200 feet east of Fiske Boulevard, which is recommended for approval by the Planning and Zoning Board.

Roger Garrett, owner of a nursery and landscaping business, stated he is trying to get the property rezoned so he can operate his business on it. He stated he rented property to the west where he operated his business for five years; he purchased the property behind it so he could expand; but he lost his lease on the front property; and now he wants to continue the business on the rear property.

Chairman Carlson inquired if Mr. Garrett is actually conducting business. Mr. Garrett responded he is not conducting business there any more; he operated on Fiske Boulevard for five years; and now he has relocated to Clearlake Road, but wants to be on Virginia Avenue. Chairman Carlson stated the only problem is incompatibility because there are no BU-2 properties anywhere in the vicinity; this is an enclave; and inquired if Mr. and Mrs. Garrett do not get the rezoning, can they annex into the City of Rockledge; with Assistant County Attorney Eden Bentley responding they could ask the City if their property was abutting the City, but she does not see that it is. Chairman Carlson inquired if BU-1 would work for their purposes; with Mr. Enos responding no, BU-1 zoning would not permit the outside uses the Garretts plan. Commissioner Higgs inquired about a specific use with the BU-2; with Mr. Enos advising that could be done.

Chairman Carlson stated she is not sure how the Board could sculpt the specific use; and inquired if Mr. Garrett is aware there is a residential community right behind him. Mr. Garrett advised he is aware of that; there is a concrete wall; and there is a cluster of palms growing in back to give a buffer. Chairman Carlson inquired if there is nothing on the property now; with Mr. Garrett responding there are plants on it. Chairman Carlson inquired if this is where Mr. Garrett stored the plants from his business, and does he have any other equipment on the property; with Mr. Garrett responding not now. Chairman Carlson inquired about the wall; with Mr. Garrett responding there is a concrete wall dividing his property from the residential property in back; and he planted a buffer. Chairman Carlson inquired if there have been any objections from the neighborhood; with Mr. Enos responding no. Chairman Carlson stated she is uncomfortable with the BU-2, and is not sure she would like to make it for a specific purpose.

Commissioner O'Brien stated on North Merritt Island, the Board heard a similar problem two years ago with a landscaping company.

Chairman Carlson inquired what kind of equipment is Mr. Garrett going to have; with Mr. Garrett responding a small dump truck and bobcats and everything would be housed inside a building. Mr. Garrett stated they have not been able to submit site plans; and their engineer advised they could not do anything until they get the rezoning. Chairman Carlson inquired about the issue on Merritt Island; with Mr. Enos responding his recollection was that it was a fairly deep parcel, and they were able to provide a substantial buffer of 50 feet or more. Commissioner O'Brien advised that is not correct as they put a berm up. Chairman Carlson inquired how much depth does Mr. Garrett have; with Mr. Garrett responding approximately 150 feet. Mr. Garrett noted Rockledge Gardens and Wojac's Nursery are abutting residential properties; with Commissioner Higgs advising they are on U.S. 1. Chairman Carlson stated she does not have a problem with making it BU-2 with a specific use as long as there is significant buffer; and inquired if the wall is cement block; with Mr. Garrett responding yes. She inquired what would be an adequate buffer; with Mr. Enos responding 25 feet would be adequate to provide an opaque visual barrier. Chairman Carlson inquired if Mr. Garrett will agree to that; with Mr. Garrett responding yes. Chairman Carlson stated she will entertain a motion to make it use specific to a nursery with a 25-foot buffer to the south. Ms. Bentley recommended a binding development agreement outlining the buffer requirement.

Commissioner Scarborough stated there is always the potential for the applicant to go out of business and sell to someone else; there could be an ongoing operation; and things such as hours of operation and type of equipment could be disturbing to people. He recommended tabling the item so Chairman Carlson can work with staff and the applicant on a good development plan. Chairman Carlson stated it can be postponed to May 3, and they can put together a binding development plan to lay out all the specifics.

Mr. Garrett stated his nursery is out of business now and he is not able to operate.

Discussion ensued on when to hear the item.

Commissioner Colon advised of a similar operation on U.S. 192; and emphasized the need to be sensitive to the residential area. She stated if the issues can be resolved in the next two weeks, that is better than denying it tonight. Mr. Garrett stated he understands that, but he operated for five years and never got a complaint at his previous location. Chairman Carlson stated the Board understands that, but must take steps to protect the community. Commissioner Scarborough stated the Board does not look at Mr. Garrett, but at the property; there is no BU-2 near the property; it is residential next to the property; and the property will keep the BU-2 designation perhaps into perpetuity. He stated the Board needs to understand there will be a nursery there and not an expanded use with strange hours, etc.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to table Item 5 (Z0103402) to April 17, 2001 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item 6. (Z0103403) New Hope Deliverance Temple, Inc.'s request for change from RU-1-7 to BU-1 on 0.22 acre located on the east side of A Lane approximately 135 feet south of SR 520, which was recommended for approval by the Planning and Zoning Board.

Larry Carter, representing New Hope Deliverance Temple, Inc., stated this is a request for rezoning for property at 208 A Lane in West Cocoa; the property has been used as a church for over 20 years; and the membership has grown to the point where they need to do some slight expansions.

Chairman Carlson inquired if the rezoning is needed to bring the item into conforming use; with Zoning Official Rick Enos responding yes, and that will allow the expansions to occur. Chairman Carlson stated she has no problem with the request.

Commissioner O'Brien stated Mr. Carter is making the zoning change to come into conformity; and inquired why this is not being done administratively. Mr. Enos stated Mr. Carter's problem is not the Comprehensive Plan, but the current zoning; the current zoning is consistent with the Plan; but his use is not consistent with the zoning. Mr. Enos stated under the Comprehensive Plan, staff initiates rezoning when the zoning is inconsistent with the Plan.

Motion by Commissioner Colon, seconded by Commissioner O'Brien, to approve Item 6 (Z0103403) as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

Item 7. (Z0103404) The Viera Company's request for change from RU-2-10 to BU-2 on 12.7± acres located on the south side of Barnes Boulevard, approximately 0.34 mile west of U.S. 1, which was recommended for approval by the Planning and Zoning Board as BU-2 on the easterly 8.31 acre parcel and EA on the remainder as modified by the applicant, and with a Binding Development Plan.

Hassan Kamal of BSE Consultants, representing The Viera Company, stated they are requesting a zoning change that encompasses a 12.7-acre parcel located south of Barnes Boulevard; it is within the limits of the approved Viera DRI; and it is designated as retail within the Development Order. He stated when they submitted the original proposal, it was for the entire parcel to be rezoned from RU-2-10 to BU-2; but they have since received telephone calls from the City of Rockledge requesting an opportunity to discuss the western boundary of the property that abuts the City; there is a residential project in the area currently going through the process, and there was concern about the compatibility of the BU-2 zoning with the residential PUD. He stated they agreed to complete a wetland delineation on the property; they were aware there were wetlands there, but they had not been surveyed; and in cooperation with County and City staff, they will complete the wetland determination. He stated initially there was no plan to develop the wetlands, and to rezone them to EA to insure their preservation and provide a buffer between the BU-2 and the adjacent residential area; the rezoning request for BU-2 would continue for the balance of the property; and they completed the survey, which went to the Planning and Zoning meeting. He stated the Planning and Zoning Board recommended approval with a binding development agreement stipulating that a portion of the property would be EA and the remainder would be BU-2; but The Viera Company's legal counsel raised a concern over some of the language. He pointed out on the map the 12.7-acre parcel, the area highlighted in green that has been confirmed to be wetlands, and the small parcel in the corner that is uplands and developable, but difficult to get to; and stated it would be appropriate to use that small portion as a stormwater facility. He stated the original proposal was to rezone the green area and the small parcel as EA; but counsel raised a concern that if the small parcel was zoned EA, and the applicant entered into a binding development plan that permitted construction of a lake, it may not be legal or correct; so in lieu of that the binding development plan proposes to rezone the green portion EA, rezone the small parcel as BU-2 with a binding development plan that restricts it to only a stormwater facility; in that way it can be done, but is restricted, and will act as a buffer.

Chairman Carlson inquired if Mr. Kamal is talking about retention on the usage on the small parcel; with Mr. Kamal responding yes.

Amy Mosher submitted photographs; and stated the Florida scrub community is home to many endemic species, some found nowhere else in the world, as well as rare, endangered, and threatened species of plants and animals. She stated the property in question is of importance because of its closeness to the Cruickshank Sanctuary; and explained what is shown in each photograph, including the rezoning notice, scrub jay, scrub lizard, butterflies, and endemic plant species. She stated Brian Toland with Natural Resources Management has identified the subject site and part of the neighboring site to the west as optimal scrub habitat in optimal condition; and it is currently serving a family of scrub jays. She commented on the property as a critical corridor to the Cruickshank Sanctuary, the zoning map of the City of Rockledge showing the proximity of the property to the Cruickshank Sanctuary, and the extent of commercial property along Barnes Boulevard. She stated the Joint Planning Agreement allows the City of Rockledge to comment on the subject property, and allows the County to comment on the Pine Acres property which is up for rezoning. She requested the Board not approve the rezoning to BU-2, as it would be a more intense use and more damaging to the critical scrub corridor habitat area and quality of life. She requested the Board send a comment to the City of Rockledge concerning the 96-acre Pine Acres rezoning prior to the public hearing on April 18, 2001. She stated both areas are highly sensitive and critical areas in need of conservation and consideration.

Doug Stuckey stated he has walked through a tremendous portion of North and Central Brevard in the past 35 years; but now he has to drive through many parts because of development; and commented on interbreeding of scrub jays, access to other scrub jay colonies, lack of access to interbreeding leading to extinction, and loss of colonies in District 1. He stated if the zoning is approved, the developer will clear-cut the property and build structures; turning the front part into a lake will not solve the problem; and while he does not want to deny the owners of the property the right to do as they wish, he is hoping the County will work with them to possibly purchase the property as a greenway corridor. He stated south of the property is a FIND site, and south of that site are 11 or 12 scrub jay colonies; and if they are broken down, that diversity will be lost.

Ralph Bird, member of the Indian River Audubon Society, stated the group met but did not vote; however, the consensus among the people there was against any change in zoning on the subject property because of its impact to scrub jay territory. He advised of banded scrub jays on the property, greenway corridor of scrub jays, and scrub jay as the County bird.

Beverly Pinyerd read aloud a letter from wildlife ecologist and biologist Donna M. Oddy concerning the proposed rezoning and development of the 12.7 aces south of Barnes Boulevard, components of the scrub ecosystems, scientific papers and monitoring of the scrub jays at the Cruickshank Sanctuary and Viera area, State of Florida CARL Project, fragmentation and urbanization of habitat potentially resulting in extinction of the scrub jay in Rockledge, isolation of scrub jay populations, and corridor between the Cruickshank Sanctuary and Viera property.

Mary Sphar, representing the Sierra Club, Turtle Coast Group, advised of critical scrub jay habitat on the property, location of parcel across from the Cruickshank Sanctuary, habitat connector between Cruickshank Sanctuary and Viera scrub jay population, and survival of the species in the County. She stated complicating the rezoning is a 96-acre tract next to the property that will be considered for rezoning by the City of Rockledge on April 18, 2001; that property is also part of the necessary habitat corridor; and both parcels are part of the CARL Project. She stated on March 23, 2001, the EELs Selection and Management Committee unanimously voted to have staff move forward with obtaining appraisals on the properties south of Barnes Boulevard that were being rezoned by the City of Rockledge, but not move forward with negotiations until further staff discussion with the Committee; it appears the Committee would like the option of purchasing the Rockledge 96-acre parcel; and they may want the same option on the 12.7-acre subject parcel. She stated Sierra Club requests the Board not approve the rezoning and give the committee a chance to take appropriate action, and to exercise its right under the Joint Planning Agreement to comment to the City of Rockledge on the rezoning of the 96-acre parcel.

Earl Jacobs stated he is a volunteer monitor at the Cruickshank Sanctuary, which is a main wildlife corridor; and advised of wildlife seen at the Sanctuary. He displayed an aerial photo of the land showing the corridor connections.

The meeting recessed at 6:59 p.m. and reconvened at 7:18 p.m.

Hassan Kamal stated he has had the benefit of working on this project since its inception; the project was encompassed in the original DRI, so a lot of issues were already addressed in that process and the subsequent permitting process; the 12.7 acres have 15,000 square feet of retail approved on it within the DRI; and based on that approval, The Viera Company went through the Army Corps of Engineers 404 process, and in consultation with U.S. Fish and Wildlife, created significant scrub jay preserve areas. He stated there are 212 acres outside the DRI limits and 282 acres inside the limits; they are mostly contiguous parcels of land; and they have been managing and maintaining the areas for the past several years, and have spent thousands of dollars a year on controlled burns. He stated part of the impact to the 12.7-acre site was mitigated by the establishment of conservation areas; the mitigation that is in place has been very successful; they have submitted monitoring reports to staff; and the habitat has done well, and the population of scrub jays in those areas has grown over the past several years. He stated with its current zoning, the property could be developed in its entirety including impacts to existing wetlands, assuming that mitigation could be done; the proposal being offered insures the preservation of the wetlands, which will be rezoned as EA; and it is a little over a four-acre wetland that could be potentially developed.

Chairman Carlson requested Mr. Kamal clarify where The Viera Company mitigated for scrub jays; with Mr. Kamal pointing out the two areas on the map. He stated the offsite parcel is along the eastern boundary of the DRI from several hundred feet south of Barnes Boulevard extending all the way down to Viera Boulevard, approximately one-quarter of a mile wide; and within the DRI are four or five parcels north of Viera Boulevard and east of Murrell Road that have been recorded and maintained as conservation areas. He noted this was a DRI condition; and the areas are between 50 acres to 140 acres.

Commissioner Higgs inquired if the moving and changing of uses is a substantial deviation to the DRI. Mr. Enos stated the property is part of Tract A, which is described as retail services as opposed to wholesale or warehouse; some of the other tracts that have been referred to as retail services have been rezoned to BU-1; and he is wondering if BU-1 would be more appropriate than BU-2 based on the DRI. He stated he does not know if a change to BU-2 would constitute a substantial change to the DRI. Commissioner Higgs inquired if in the past the Board had a hearing to determine substantial deviations; with Assistant County Manager Peggy Busacca responding when the applicant has made a request for a determination of substantial deviation, the County has done that review, gotten comments from the Regional Planning Council or DCA, and came to the Board for a decision. Commissioner Higgs inquired why this request would not be handled in the same way; with Ms. Busacca responding in the previous examples, it was a change to the development order rather than a change of zoning. Commissioner Higgs inquired if what is requested is a change to the development order; with Ms. Busacca responding it appears it could be, but she is not familiar enough to know that. Commissioner Higgs stated the development order shows certain uses and acreage; and if that is being changed, the County should determine through the appropriate process whether this is a substantial deviation; with Ms. Busacca agreeing. Assistant County Attorney Eden Bentley stated the Statute only talks about an increase in commercial development; this is already designated retail commercial, but not wholesale and warehousing; the Statute references an increase in commercial development by six acres and this is twelve acres; so it is a question of interpretation. Ms. Bentley stated she does not know if the Planning Department had a chance to look at this or call DCA for input; with Planner Todd Corwin advising it has not.

Chairman Carlson stated she did not realize it was in the DRI until the applicant said so this evening; and the Board needs to give staff a chance to look at this to make sure it is not a deviation.

Mr. Enos noted if the applicant is willing to go with BU-1, there is no problem; and the only question is with BU-2. Commissioner Higgs inquired if BU-1 is not a change; with Mr. Enos responding no, BU-1 is retail. Commissioner Higgs stated there is a change in the DRI; it is appropriate to handle it as a change to the DRI; and there is a process to do so.

Chairman Carlson stated she does not understand why the applicant has to request the change before the County discovers there is a change, or why a rezoning comes forward without some kind of background check. Ms. Busacca advised if the rezoning is consistent with the development order, then there is no substantial deviation, so the issue at this meeting is that staff was unaware until this evening that it was part of the DRI. Mr. Enos advised of a change in the Comprehensive Plan, which will not allow this to occur in the future, as there will be a DRI land designation.

Mr. Kamal stated in the development order, it is approved for retail; it is currently zoned RU-2-10; and they are trying to make the zoning more consistent with what is approved in the development order. He noted they are approved for retail, and BU-2 allows retail as well as wholesale and warehousing operations.

Ms. Busacca advised if the applicant had wished to limit the uses to retail, he would have requested BU-1; but because there is a potential to go to non-retail and wholesale, it is necessary to look at whether there is a conflict with the current approved development order.

Chairman Carlson stated this was advertised to go to BU-2; and the best thing to do is to refer it to staff to see if this is a problem, unless the applicant wants to go with BU-1. Mr. Kamal stated he would have no objection to BU-1. Commissioner Higgs inquired if that would constitute a deviation; with Ms. Bentley responding that fits the development order today which says retail commercial; BU-1 is retail; and that takes it out of the area of concern.

Commissioner Colon stated all she heard about was regarding BU-1 or BU-2; and requested feedback from Commissioners.

Chairman Carlson stated the applicant has already mitigated a considerable amount because of the DRI; her only problem is the potential that the development may be harmful to the Cruickshank Sanctuary population of jays; the County has spent much money on that parcel; she would be more comfortable getting a better understanding before moving forward with any kind of zoning; but she is not sure where the Board is on this legally.

Commissioner Colon inquired if Chairman Carlson desires for the item to be tabled. Chairman Carlson inquired if the item can be referred to the EELs Selection Committee to see what the potential impact is; with Ms. Bentley responding no. Ms. Bentley stated the Board needs to address this as it would any other zoning item; it can look at the environmental information provided by staff in so far as it affects the zoning issues; but if it is not within the standard zoning criteria, it is not a basis for denial or referral to the EELs Committee because it gives an implication of wanting to purchase it and denying zoning in that process; and the Board does not want to do that.

Commissioner Higgs stated the question is what should the zoning be; and the City of Rockledge, in accordance with the Joint Planning Agreement, expressed objection to the intensity of the proposed zoning classification. She stated that was based primarily on the multi- family uses; while there is industrial to the north, to the south and west of the subject parcel are multi-family uses; and the proper issue before the Board is whether the zoning should be BU-2, BU-1, or residential use. She stated the argument can be made that on the south side of the street there is residential zoning in place, and moving further west with a commercial use, retail or otherwise, is not compatible with the uses on the south side of the road.

Chairman Carlson stated whatever motion is made, she is going to vote against it because there needs to be additional information.

Mr. Kamal stated he would prefer the item be tabled to work through the issues rather than have a negative motion.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to table Item 7 (Z0103404) to the May 3, 2001 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item 8. (Z0103405) The Viera Company's request for change from GU to AU on 26.29± acres and GU to EU on 22.33± acres, on a total acreage of 48.62± acres located on the south side of Viera Boulevard, approximately 0.54 mile west of U.S. 1, which was recommended for approval by the Planning and Zoning Board.

Hassan Kamal of BSE Consultants, representing The Viera Company, pointed out the 26.29-acre parcel on the map, which is south of Viera Boulevard and proposed to go from GU to AU, and parcel 1, which is located south of Viera Boulevard directly east of the existing Indian River Colony Club community and is proposed to go from GU to EU. He advised he presented the proposal to the Planning and Zoning Board, which recommended approval.

Motion by Commissioner Colon, seconded by Commissioner Scarborough, to approve Item 8 (Z0103405) as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

Item 9. (Z0103406) A. Duda & Sons, Inc.'s request for a Conditional Use Permit for a Group Home in a PUD on 60.44± acres located on the east side of Stadium Parkway, approximately 1.5 miles north of Judge Fran Jamieson Way, which was recommended for approval by the Planning and Zoning Board.

Hassan Kamal of BSE Consultants, representing A. Duda & Sons, Inc., stated the property is approximately 60 acres on the west side of I-95, a little north of the future Viera Boulevard alignment and east of Stadium Parkway; and the request is for a conditional use permit to allow group homes. He stated a site plan has been presented to the County that has a lot of open space and some unique uses; and Lisa Inbornone is present to provide additional description of the proposed community.

Chairman Carlson and Commissioners Higgs and Colon advised they met previously with Ms. Inbornone.

Lisa Inbornone, Chairman of the Board of Cobblestone, stated she can respond to the Board's questions.

Mr. Kamal stated one of the unique things on the site plan is a trail system that winds through the community; it is tied to the open space and is behind the houses; and it is different than normal subdivision development as they will not put sidewalks on both sides of the street, but will use the larger pedway system to tie the neighborhood together and connect it to the arterial facility along Stadium Parkway and to the internal recreational facilities.

Chairman Carlson stated in the briefing they talked about making sure the project has some flexibility in terms of site design; and requested staff explain what can be done as far as size of lots, setbacks, and things like that. Zoning Official Rick Enos responded some concern has been expressed about the location of the cul-de-sacs relative to the open space tracts and possibly allowing flexibility to redesign the cul-de-sacs; and some lot sizes could be further reduced to provide more opportunity for open space. He stated the applicant is currently proposing lot sizes of 60 or 70 feet wide by 115 feet deep; to provide flexibility some percentage could be permitted; and suggested as many as 20 or 30% of the lots to be 50 to 60 feet width and 100 feet in depth. He stated because this is a PUD, it is also possible to reduce setbacks; and recommended the setback be reduced on those lots to 15 feet instead of 20 feet on the front and rear. Chairman Carlson inquired if that would give the applicant the flexibility to work toward more open space; with Mr. Enos responding it would.

Commissioner Higgs stated the proposed interchange with I-95 is just south of the development; with Mr. Kamal advising the off-ramp would come to the east property boundary, and a 50-foot buffer has been shown between the off-ramp and the rear of the lots. Commissioner Higgs inquired how will it be explained to the potential buyers that the off-ramp might be there; with Mr. Kamal responding the development plans show that; it will be in all the marketing literature; it is on all the maps; it is on the site plan; and there is no way to hide I-95. Commissioner Higgs stated I-95 would not be hidden; but the interchange and off-ramp coming to the south of the development would not be as obvious unless there was written disclosure in all the documents that are given to people. Ms. Inbornone stated the marketing plan is being developed by Mercedes; and they will need to be sure they disclose that information.

Chairman Carlson inquired if the development will have a wall around it; with Ms. Inbornone responding a berm will abut I-95, and a wall will surround the rest of the neighborhood from other residential areas. Chairman Carlson inquired if Mr. Kamal has gotten anything in writing from FDOT saying the interchange will occur; with Mr. Kamal responding nothing is approved, but there have been several studies.

Chairman Carlson passed the gavel to Vice Chairman Scarborough.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to approve Item 9 (Z0103406) with flexibility to redesign cul-de-sacs, reduce lot sizes to 50 to 60 feet in width and 100 feet in depth, and reduce setbacks on reduced size lots to 15 feet on the front and rear; and provide proper disclosure of potential I-95 interchange. Motion carried and ordered unanimously.

Vice Chairman Scarborough passed the gavel to Chairman Carlson.

Item 10. (Z0103407) Tangent Communications Corp.'s request for change from GU to BU-2 retaining the existing CUP for Towers and Antennae on 9.6 acres located on the northeast corner of South Burnett Road and Parrish Road, which was recommended for approval by the Planning and Zoning Board.

Doug Robertson, representing the applicant, stated the request is to change the zoning from GU to BU-2; the property, approximately ten acres, located east of Burnett Road, approximately 800 feet south of SR 520; and the current use is for a 410-foot communications tower and radio station, which is nonconforming under the existing zoning. He stated the rezoning would allow the existing use to be consistent with the zoning, and permit the owner to develop the property consistent with the surrounding zoning. He stated the zoning to the north and east is BU-2; partially to the south it is BU-2 with a community center located on GML; the existing uses in the BU-2 are mini-warehouses, a large warehouse, heavy truck repair, and heavy equipment rental; the rezoning request is compatible with the surrounding area; and requested the Board's support. He stated he understands there may be a question regarding a staff comment that 75% of the property is wetlands; two years ago when the property came through the process for a Conditional Use Permit for the communications tower, this issue was also raised; but a jurisdictional study determined that under 10% of the property is wetlands. He stated he discussed this prior to the P&Z meeting with Debbie Coles; he thought the issue was behind him; but as of this afternoon, the report was not in Ms. Coles file, and it was too late for him to get it from the person who did the study.

Chairman Carlson stated when she looked at the soils map, it appears there are 75% or more wetlands on the map; and inquired when should the wetland determination be made and how is the new Comprehensive Plan language being applied. Assistant County Attorney Eden Bentley stated it sounds like Mr. Robertson has spent the money for that determination, but does not have that report.

Commissioner O'Brien stated the package is also missing a map showing other radio towers in close proximity. Mr. Robertson noted the request tonight is not for a radio tower; that has already been approved and is existing on the site; and approximately 50% of the site is being used for the tower and radio station.

Chairman Carlson inquired if the Board tabled the previous item because of the issue of going from BU-1 to BU-2; and stated the Board needs to be consistent.

Commissioner O'Brien stated the Board has a policy; the Office of Natural Resources will address the issue if it gets into the wetlands; and to delay the applicant at this time would not be appropriate. He stated the Board could approve; and if the applicant cannot get his permits because of environmental concerns, that is between him and other agencies.

Chairman Carlson inquired if there is any problem in doing that conditioned on how this comes out in terms of the interpretation. Ms. Bentley advised the Board has to approve, deny, or table; and it cannot make it conditional.

Motion by Commissioner O'Brien, to approve Item 10 (Z0103407) as recommended by the Planning and Zoning Board. The motion died for lack of a second.

Commissioner Scarborough stated the Board may be rendering properties useless if they cannot utilize a particular zoning if there are wetlands. Mr. Robertson stated tabling is acceptable.

Chairman Carlson stated the item could be tabled to a daytime meeting if Mr. Robertson has the data; with Mr. Robertson expressing a preference for a daytime meeting.

Motion by Commissioner Colon, seconded by Commissioner Scarborough, to table Item 10 (Z0103407) to April 24, 2001. Motion carried and ordered unanimously.

Item 11. (Z0103408) Wasfi A. and Vivian E. Makar's request for change from GU to BU-1 on 10.53 acres located on the west side of U.S. 1 approximately 900 feet north of Suntree Boulevard, which was recommended for approval by the Planning and Zoning Board.

Tom Mills stated he is employed by Healthfirst, Inc., which has a contract to purchase the property from the Makars; and he is accompanied by engineer Jeffrey Crow with BRPH who is designing an office building for the property. He stated it is a ten-acre parcel on U.S. 1 just north of Suntree Boulevard and north and across the street from Chowders Restaurant; and it is their intent to put a two-story building on the property. He stated the property is surrounded mostly by properties of similar zoning except for a parcel on the west, which is General Use and has some residential properties.

Chairman Carlson inquired if the engineer has done any wetland determination; with Mr. Mills responding that has all been done. Chairman Carlson stated based on staff's data, the property has 50% wetlands. Jeff Crow, with BRPH Architects and Engineers, stated they had two meetings with the County's Natural Resources Office, and had a biologist do a wetlands determination; they had a survey; and they met with the St. Johns River Water Management District to verify that the biologist had properly located the wetlands. He stated during the second meeting with the Natural Resources staff, they reviewed where the wetland was delineated and the type it was; they got conformance on the position of the building so it will be out of the wetland area, minimizing the impact to the wetland for an access road to the back; and they are also doing mitigation to enhance the wetland that is there. He stated it is not 50%; they have done the initial walk-through with the County and agencies; and they have met with favorable results. Chairman Carlson inquired how much wetland is on the property; with Mr. Crow responding he does not know, but he believes it is one acre out of a ten-acre site; and it is isolated in the southwest corner. Chairman Carlson inquired if they will be avoiding the wetland. Mr. Crow responded there is one road that will have to go through as the access is off U.S. 1 and Third Avenue, but they are minimizing by putting a 24-foot wide road in one area; it is a lower classification of wetland; and they are doing onsite mitigation for any impact so there is no net loss. He stated the building is totally out of the wetland area.

Commissioner Higgs inquired if part of the wetland development will be a road; with Mr. Crow responding yes, an access road. Commissioner Higgs stated if the new Comprehensive Plan Policy says no commercial/industrial development in wetlands, they cannot do that.

Chairman Carlson stated that is a question of interpretation. Mr. Crow stated under the classifications, it talks about forested wetlands; it is specific about the type of wetlands that are delineated in the areas; and those delineations are not in their wetlands. Chairman Carlson stated the property does not have any forested wetlands; with Mr. Crow responding that is correct. Chairman Carlson stated the new policy is different; and that is what the Board needs a determination on. Commissioner Higgs inquired about the new language. Planner Todd Corwin stated the property already has Mixed Use District, although he does not know the date it was granted; but considering it to be prior to February 23, 1996, commercial/industrial land development activities may be permitted if certain criteria are met; and the criteria are the property is substantially surrounded by lands developed as commercial/industrial as of February 23, 1996, the proposed land development activity will not result in increased flooding problems, the wetland is not classified as a forested wetland system or wet prairie system, and buffering requirements. Mr. Crow stated they have addressed all of those issues in their two meetings with Natural Resources. Chairman Carlson requested the engineer show on the map what will be changed to move out of the wetlands; with Mr. Crow pointing out various areas on the map. Chairman Carlson stated she does not have the concerns she had with other items; and it sounds like based on the existing Mixed Use District, this would be a compatible use, given that they have mitigated to the no net loss scenario.

Motion by Commissioner Colon, seconded by Commissioner Carlson, to approve Item 11 (Z0103408) as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

Item 12. (Z0103409) Gomer Mitchell's request for change from BU-1 to EU on 0.178 acre located approximately 200 feet east of U.S. 1, approximately 0.47 mile south of Barnes Boulevard, which was recommended for approval by the Planning and Zoning Board.

Chairman Carlson stated she does not have a problem with the item.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to approve Item 12 (Z0103409) as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

Item 13. (Z 0103410) A. Duda & Sons, Inc.'s request for change from PUD to RU-1-13 with a BDP limiting density to 3.1 units per acres, on 84.348± acres, located due east of St. Andrews Isles Subdivision and due south of Waterford Place, which was recommended for approval by the Planning and Zoning Board with a Binding Development Plan as offered by the applicant.

Richard Torpy, Attorney representing A. Duda & Sons, Inc., stated the request is to take an expired PUD and rezone it to RU-1-13; and submitted staff comments. He stated the property is located south of Waterford Place, east of St. Andrews Isles and Phase II of Sawgrass, north of the proposed Pineda Extension, and west of the northern part of Grand Haven Subdivision; and on all sides of the project it is either zoned RU-1-13 or RU-1-7. He stated they have agreed to provide a binding development agreement providing for a maximum density of 2.5 units per acre, minimum housing size of 1,900 square feet, minimum lot size of 80 feet by 130 feet, and a cap on the total number of units at 200 units, although it could have gone to approximately 260 units. He stated in Phase II of Sawgrass, there was an issue of disclosure about the proposed Pineda Extension; and they have agreed to put the same language in the Binding Development Agreement. He stated they have met twice with the residents about the proposed subdivision; the people of St. Andrews Isles have deed restrictions prohibiting fences, outbuildings, storage of recreational vehicles and boats, etc.; and the developer has agreed to place similar deed restrictions in the binding development agreement so there will be consistency on the western boundary as far as deed restriction, and it will be consistent with the appearance of Sawgrass. He stated Waterford Place is to the north; the lots there are approximately 50 feet wide; and there has been question about a buffer. He stated the developer of Waterford Place did not provide any buffering; many residents believed the area behind it was a wildlife preserve, which would never be developed; and there is a fence line along the north boundary of the property, which is approximately ten feet to the south of the homeowners' property lines. He stated many of the homeowners have improved back to the fence line and have enjoyed the benefit of using the property even though it is not theirs; and Mr. Jelus and his partners have agreed to preserve the ten-foot buffer for those individuals. He noted they have not done any engineering on the site for water and those types of things; and there are concerns about where the subdivisions meet and what will be done for drainage; but there will be a ten-foot buffer preserved. He stated the project is approximately 84 acres; there is an eagle's nest; and they are developing well beyond the allowable nest boundaries.

Commissioner Higgs inquired about maintenance of the ten-foot buffer on the north boundary; with Mr. Torpy responding they have not gotten that far. Timothy Jelus advised the intent is it would be maintained by the homeowners association. Commissioner Higgs inquired about the composition of the buffer. Mr. Jelus responded most of the buffer is grass with some fruit trees; the area is part of the homeowners' yards; the homeowners have sodded an extra ten feet; and they are agreeing to a buffer tract to create the additional ten-foot separation of rear setbacks between structures, which appeared to be the largest concern of the residents. He stated he would like to reserve the right, when they go through detailed engineering, as to what has to be done within the ten-foot area for drainage; half of the neighboring yards drain onto his property; and that will have to be addressed in some fashion to route that to a retention pond.

Chairman Carlson inquired if Mr. Jelus is intending to put a wall or other division, or is he leaving the buffer as is, and what will be the separator between Waterford and the new subdivision; with Mr. Jelus responding right now it is their yards. Chairman Carlson inquired if Mr. Jelus has any plan to put anything up there. Mr. Jelus responded this is zoning; he does not have a plan for the entire subdivision; all he is asking for is a reasonable zoning for the property; and the details will be fleshed out through the design process.

Commissioner Scarborough stated the County cannot enforce deed restrictions; and inquired how would the Board effect a deed restriction that would allow someone in an adjoining subdivision to have standing to come in and enforce the restriction in an adjoining subdivision. Ms. Bentley stated Mr. Torpy can write it so that it runs in favor of the residents in the adjoining subdivisions.

Discussion ensued on deed restrictions for the eastern properties, deed restriction running with the land, homeowners' associations, creating language for the binding development agreement, ability to realize the benefit, and abiding by deed restrictions.

Commissioner Scarborough recommended writing the language so that the neighbors across the street have similar deed restrictions as if they were part of the same community. Mr. Torpy stated they have met twice with the people about the project; they understand the concern; and they have agreed to make deed restrictions in the new subdivision that mirror the other subdivision.

Discussion resumed on deed restrictions, similar back yards, and ability to enforce violations of deed restrictions.

Commissioner O'Brien inquired how anyone ended up with an extra ten feet in their back yard that is not on their own deed. Mr. Torpy advised they have not been acquired legally; and described what happened when Waterford Place was created with the people improving back to the fence line. Mr. Jelus stated south of Waterford Place and St. Andrews Isles to Windover Farms and west to I-95 was 1,000 acres of pasture that has been a sod farm and cattle grazing area since the mid-1980's; when the developers of Waterford Place developed the property, A. Duda & Sons changed the location of their agricultural fences, and created a line south of the south boundary of Waterford Place, which was between eight to fifteen feet from the boundary; and the people who were there filled it in, put sod, and made it part of their yards. Commissioner O'Brien stated Mr. Jelus can take the property back and plant oleanders to make a buffer. He inquired if Mr. Torpy or his client have consulted with the School Board to discuss the school overcrowding the project may create; with Mr. Torpy responding no, it is not an issue that has traditionally been dealt with. Commissioner O'Brien emphasized the need for communication to resolve the problems.

Richard Northrup, resident of St. Andrews Isles, advised of concern about the development, maintaining aesthetics, and insuring no deterioration of property values. He requested the developer be required to guarantee the fifteen lots bordering the lakes will contain the same restrictions as apply to his community; and outlined the provisions of the deed restrictions. He stated the lakes which surround St. Andrews Isles are the private property of the community; fifteen of the Sawgrass lots will border the lakes; and recommended the developer be required to amend the Sawgrass covenants to include disclosure to the future purchasers of the lots advising the lakes cannot be used by the residents of Sawgrass South and to include the same covenants on those fifteen lots as St. Andrews Isles.

Chairman Carlson inquired if St. Andrews Isles is built out; with Mr. Northrup responding not quite. Chairman Carlson inquired when there are developments going up together, is there a requirement to separate them or is the disclosure or binding development plan enough; with Ms. Bentley responding that becomes an issue of private property rights, and putting it in the binding development agreement that they will disclose it is as much as the Board can do at this level.

Commissioner O'Brien inquired what would happen if someone on the fifteen lots used the lake; with Chairman Carlson responding they would be trespassing. Mr. Northrup stated there is precedent in Suntree as there are several signs that are up in similar situations. Commissioner O'Brien stated the people will be buying lakefront property that they can look at but not touch.

Anne Salemmo, resident of St. Andrews Isles, advised of permits to use the lake, monitoring the lake, and liability issues. She commented on the conceptual plan, concerns about the environmental impact, over-development at the southern end of St. Andrews Boulevard, and elimination of wildlife habitat. She stated there are six Suntree communities that border St. Andrews Boulevard; when built out, the Sawgrass developments will represent an increase of 133% of the number of homes in the area; and St. Andrews Boulevard will be the only means of access and egress. She commented on traffic volume, speeding, and commercial traffic; and stated the road cannot sustain the additional traffic volume. She requested the rezoning not be approved until the developers include an alternate means of ingress/egress.

Melissa Hoaglund, resident of Suntree Estates, expressed concern about school overcrowding and use of portable classrooms; and advised of the enrollment of surrounding schools. She stated the Commission and the School Board are working to develop a plan to better coordinate new construction; but the actions that will arise from those discussions will be too late to make a change in the current matter. She requested action on Sawgrass, Phase III be delayed until there is a mechanism to insure that there will be sufficient space within the schools to accommodate the children who will be moving in. She commented on utilities, water pressure, and adequate water and sewer service. She stated much of Suntree is PUD, which includes recreation acres and common grounds; there is nothing in the Sawgrass plans that includes such areas; and inquired if the issue is PUD versus RU-1-13. She stated Sawgrass is not compatible with Suntree; and commented on decreasing values, impacts to the environment, decreases in native wildlife, increased problems with water management, and stormwater runoff and pollution due to surface runoff from artificially landscaped areas. She requested the Board consider the quality of life issues that are at stake.

Chairman Carlson requested Mr. Enos clarify the difference between the PUD versus the RU-1-13. Mr. Enos stated the PUD classification can be several mixed uses; that is what is present in Suntree; and there are also open space requirements. He stated RU-1-13 is a single-family classification which does not require any open space.

Ed Slaney, Volunteer Eagle Watch Monitor for Audubon of Florida, advised of the management zones surrounding the eagle's nest, recommended restrictions in the primary zone during the nesting season, primary zone extending from 750 feet to 1,500 feet from the nest tree, and detrimental activities in the primary zone. He advised of restrictions in the secondary zone; stated the secondary zone would extend from 750 feet to one mile; and outlined detrimental activities and permitted activities in the secondary zone. He stated the guidelines are designed to enhance the quality of bald eagle feeding areas, and eliminate or minimize human disturbance; the use of toxic chemicals in watersheds and rivers where bald eagles feed should be prohibited; alteration of natural shorelines where bald eagles feed should be prevented or limited; and degraded shorelines should be rehabilitated where possible. He stated water quality in eagle feeding areas should be monitored and remedial steps should be taken. He stated when it comes to the binding development agreement, all the rules should be applied and monitored.

Chairman Carlson inquired if Mr. Slaney is reading from the current regulations; with Mr. Slaney responding they are guidelines, and he does not think they have changed much.

Discussion ensued on the size of the primary area, disturbing the nest, and monitoring the nest.

Gregory Dufour, resident of Waterford Place, submitted written information; stated he was lied to when he bought his home; he was told the property behind him was a preserve that could not be developed; and there was fence at the rear of the property. He commented on development of the rear of the lot by the developer, discrepancies between what was said tonight and what is in the binding development plan, and difficulty in finding the truth. He advised of a petition signed by 64 residents requesting the Board restrict and stop the housing development growth surrounding Waterford Place Subdivision until certain concerns are met including insuring all housing development plans have wildlife natural areas, conservation buffers, and parks, and reviewing water usage to insure developers are not overbuilding and using up existing water supplies. He expressed concern that if development is not slowed down, in 50 years, the County will look like Miami or downtown Orlando. He advised of rebuilding of Germany after World War II.

Commissioner Higgs inquired does the binding site plan that Mr. Dufour has show a fifteen feet buffer; with Mr. Dufour responding it is on the copy provided by Mr. Torpy, but when Mr. Torpy spoke he clearly said ten feet.

Joan Jensen, Secretary of the Waterford Place Homeowners Association, stated the Association has formed a committee to deal with the concerns of the residents regarding the proposed Sawgrass South development, including destruction of the natural wetland and scrub land, school overcrowding, and strain on utilities and roads. She commented on paying premium prices for lands backing up to wetlands and property not having fencing. She stated the site plan Mr. Jelus displayed appears to eliminate the wetland areas; and commented on flow of water between lakes and wetlands and the plan not conforming to the Ordinance, which encourages developers to keep natural landscape in place. She requested the rezoning be denied.

Mary Sphar, representing Sierra Club, Turtle Coast Group, stated on February 1, 2001, the Board approved rezoning for a portion of the Sawgrass development; at that meeting she spoke on the wetlands aspect; and the applicant was informed of the new Wetlands Policy 5.2.f.1, which provides residential property that includes wetland area shall be subdivided in such a way that buildable areas are included on each lot, and subdivided lots shall contain sufficient uplands for the intended use and any buffering necessary to maintain the function of the wetlands. She stated at the February 1 meeting the applicant indicated that he would comply with the Comprehensive Plan; however, she reviewed the revised site plan this afternoon, and it does not comply. She stated lots in that phase of Sawgrass South still do not have enough buildable uplands; and expressed concern that the same scenario will occur with tonight's requested rezoning. She stated the applicant has not submitted to the County an overlay of wetlands and lot boundaries; therefore, Sierra Club recommends that tonight's rezoning application not be approved. She commented on the Hearndon application heard earlier where the Future Land Use Element language was not mentioned, and Policy 5.2.f.2 was not sufficiently explained, particularly the buffering requirements. She stated she has been asking for a written staff policy on how the new wetlands language should be implemented since August, 2000; and requested this be done in a timely manner. She requested the rezoning not be approved this evening, and the Board wait to make a decision when it knows the lot layout will meet the requirements of the Comprehensive Plan. She requested the Board direct staff to provide written internal policies on the application of Comprehensive Plan wetlands policies in the near future.

Chairman Carlson inquired when Ms. Sphar requested that; with Ms. Sphar responding approximately August 1 or 2, 2000. Ms. Sphar stated a review of the minutes indicates the matrix was requested by the Board, but not the entire group of written policies; and on February 1, 2001, Commissioner Higgs requested a report be brought back advising how the Comprehensive Plan Policies would be applied. She stated she asked when the applicant would need to be informed that Policy 5.2.f.1 requires including enough buildable uplands in each lot; and Chairman Carlson stated such a report would be provided, but it has not been delivered to the Board.

Commissioner Higgs inquired about the policy in relation to the Hearndon item; with Ms. Sphar responding Policy 4.1 of the Future Land Use Element states the new designations shall have sufficient uplands for the intended use and for any buffering necessary to maintain wetland function. Ms. Sphar stated the policy most mentioned in the Hearndon discussion was Policy 5.2.f.3; and in reality, since this was a new designation being set aside for in a small plan amendment, Policy 5.2.f.2 would have been appropriate to reference. Chairman Carlson inquired what is the status on the policy reports; with Ms. Busacca responding she does not know, but will find out.

Pete Zanmiller, resident of Waterford Place, stated his property will border Sawgrass, Phase III; and expressed concern about the buffer. He noted if the ten feet is already on his property he may have been lied to by his realtor; his understanding was that his property went to the fence, but there was a ten-foot right-of-way that could not be developed; and ten feet is not enough to differentiate Waterford Place from Sawgrass. He stated he is disturbed that the deed restrictions will only mirror St. Andrews Isles; it would do him no good if the homes that border St. Andrews Isles had deed restrictions, but the ones bordering Waterford Place could have boats, fences, etc.; and one reason he bought his house was because the deed restrictions were in place. He commented on density, limited access, traffic concerns, dangers to children, and the site plan. He requested the Board table the item so the communities being affected can have an appropriate amount of time to review the site plan to get a better understanding of what is being proposed.

Everett Bennett, resident of Waterford Place, stated his property is one of the original residences on the south side of Astoria that borders the proposed Sawgrass community; his property has 17 feet that is apparently Sawgrass property, although he was told it was a right-of-way that would be unused and could be maintained and utilized; and expressed reservations about the proposed community. He expressed frustration at the lack of information and detail about the proposal and how it will impact his property; and commented on meetings with the developer. He stated there are unanswered questions about compatibility of elevations, compatibility of covenants, uncertainty of boundary lines, wetland and preserve areas, and lack of open space. He stated the Waterford Place Association established a committee to review Sawgrass South's impact on Waterford Place; and recommended the Board table the item for 30 days to allow the committee to work out the details.

Frank Rockwell stated he and his wife are currently building a house in St. Andrews Isles; and recited a portion of the poem, The Walrus and the Carpenter, "The time has come, the walrus said, to talk of many things-of shoes and ships and sealing wax and cabbages and kings, and why the sea is boiling hot, and whether pigs have wings." He requested the Board not give this pig wings tonight, but to allow time to work with the developers.

Jerry Thompson stated he and his wife recently bought a home in Waterford Place; he knew the Dudas owned the property behind his and that his survey pins did not go all the way to the fence line; and the previous representation of lots in Waterford Place being 50 feet is incorrect as the lots are quarter-acre lots that are 80 feet wide, which is consistent with the Sawgrass community. He commented on his search for an appropriate house, beauty of the area, and developments on the periphery of Suntree leveraging Suntree to promote sales but not following the covenants; and expressed concern that the depth of the buffer area behind the properties is actually unknown. He advised of problems with accommodating growth and access roads; and requested additional definition of the proposed project.

Mr. Torpy stated every time he presents a project, the neighborhoods around all want to know the specifics of the project; however, at the zoning stage, many of the details have not been worked out. He stated the staff report has reviewed the issues of consistency and compatibility, and found nothing that does not meet that level of review; and beyond tonight, there is another level of review at the permitting phase. He stated they have no problem disclosing to potential purchasers that the lakes in St. Andrews Isles are not there for their use and benefit; and advised how trespassers are stopped from using the lakes. He stated one of the speakers inquired why a connection could not be put in a certain location to alleviate traffic; the donation agreement between the County and the Duda Company appears to prohibit another cut in that location; and the Board has discretion over cuts made to the Pineda Extension, but the developer does not. He commented on growth and schools; and stated the projected buildout for the development is not for approximately five years, which is more than adequate time to plan, fund, and construct the necessary schools. He stated water and sewer are under the control of the County; and the eagle's nest is within the regulations of U.S. Fish and Wildlife, which has provided an initial response that the preliminary plan meets the regulations. He stated they said they would give a ten-foot buffer, but wrote fifteen feet; and they will give the fifteen feet. He stated the actual area is between ten and fifteen feet; although the people were given surveys and had survey pins, there was some confusion; and the developer is agreeing to create the fifteen-foot buffer. He stated drainage is a permitting issue.

Chairman Carlson advised the speaker's time has expired. Mr. Torpy stated he thought the applicant had the ability to respond on the record. Ms. Bentley advised the applicant can ask for additional time, but typically the applicant is given five minutes to rebut. Chairman Carlson inquired if there is a motion to allow additional time. Commissioner Scarborough stated this is not going to be settled at this meeting; he assumes the item will be tabled; and the Board can allow Mr. Torpy time at the next meeting.

Mr. Torpy stated other issues that were brought up such as wetlands and compatibility of deed restrictions are not zoning issues; they met twice with the residents; and they are here tonight for zoning. He stated they have dealt with compatibility, consistency, and density issues; they have even agreed to a minimum size for the homes; they have agreed to put those items in the binding development agreement; it has been reviewed by County staff; and there is nothing to say this is not compatible and consistent with the Comprehensive Plan. He requested approval of the zoning; and stated the remainder of the issues will be dealt with at the permitting phase. He stated he is not aware of a moratorium on zoning or construction; there is a myriad of regulations he will have comply with after the zoning phase; and they are merely requesting the zoning this evening.

Commissioner Colon stated she met with Mr. Torpy; she appreciates him going to the community to get feedback; and more concerns came up at this meeting. She stated this item affects many families and a huge community, and the Board needs to table it; the citizens have indicated they are willing to work with the applicant, and Mr. Torpy has demonstrated he is willing to work with the residents; and together residents and developers have worked out some awesome plans. She stated the County has incentives for open space; and requested the applicant talk to staff and staff try to educate the developer on some of the plans that are going forward for the community. She stated the compatibility is not there in terms of what Suntree has and what Sawgrass wants to put in; so, there is a lot to talk about.

Motion by Commissioner Colon, to table Item 13. Motion died for lack of a second.

Commissioner O'Brien stated he understands it is important for the developers and homeowners to have communication; but America is not socialist or communist; and private property owners have private property rights. He stated just because someone is a developer, he still owns the property and has rights to it; and he does not have to talk to anyone. He stated the Board should decide the zoning; and it is up to the Board to work something out; but the applicant has rights.

Commissioner Scarborough stated he is concerned about the number of items that may appear on one Agenda; and inquired if that is becoming a problem.

Chairman Carlson inquired if Ms. Bentley is familiar with what Orange County did prior to its move to reassess the overcrowding issue; with Ms. Bentley responding she is not. Assistant County Manager Peggy Busacca stated Orange County requests a report from the School Board whenever a rezoning request is heard that would increase the amount of residential units and thus impact the schools; one such report resulted in a denial of a development, and a second report also resulted in a denial; and at least one court case has come out of that. She stated the case is working its way through the court system; it has not yet been determined; but the Orange County action is consistent with what is being considered by the Legislature as far as the Growth Management Act. Chairman Carlson inquired if there is anything the Board could do with the item being considered to get some input from the School Board. She stated if the item is tabled, it could be tabled long enough to get some input from the School Board; and when it comes back the Board could see the true impacts of such development. She stated staff provided numbers on the various Sawgrass developments that are already approved and the one being considered; she is concerned because there is no southern outlet to the Suntree development; and commented on trip traffic and the number of units in Sawgrass. She stated she is concerned; the developer is concerned; and the issues are not going to go away, so the Board needs to decide what it is going to do. She stated most of the concerns have been stated by the speakers; she is concerned about the eagle's nest and the different opinions she is getting; one picture shows a potential road that may connect with the new Pineda Extension with right-of-way up to 400 feet; but one of the documents from the speakers says except under unusual circumstances the primary zone should encompass an area extending from 750 to 1,500 feet outward from the nest tree. She stated on the previous Sawgrass item, the Board approval was contingent on provision of right-of-way for a possible connection to Pineda to offset some of the traffic that is going to occur. She stated she would like the item to be tabled long enough to get comment from the School Board, if it is willing to do so; and this could be an opportunity to work together.

Discussion ensued on an appropriate date to reconsider the item, when the Board will meet with the School Board, and getting School Board comment.

Commissioner Higgs advised she met with Mr. Torpy.

Motion by Commissioner Colon, seconded by Commissioner Higgs, to table Item 13 (Z0103410) to the May 24, 2001 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Commissioner Colon inquired if Chairman Carlson can coordinate with the community. Chairman Carlson stated she met with Mr. Torpy and Mr. Jelus, and has gotten many communications on this item.

The meeting recessed at 9:36 p.m. and reconvened at 9:51 p.m.

Item 14. (Z0103501) Robert L. and Kathy K. Hubbard's request for change from RP to BU-1-A on 0.4 acre located on the west side of Minton Road, approximately 440 feet north of Milwaukee Avenue, which was recommended for approval by the Planning and Zoning Board.

Motion by Commissioner Colon, seconded by Commissioner O'Brien, to approve Item 14 (Z0103501) as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

Item 15. (Z0103101) Thomas F. Hahn's request for change from GU to AU on 2.38 acres located on the west side of Florida Palm Avenue, approximately 135 feet north of Cabbage Palm Street, which was recommended for approval by the Planning and Zoning Board.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Item 15 (Z0103101) as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

Item 16. (Z0103102) Harry O. and Martha J. Bissinger's request for change from GU to AU on 1.01 acres located on the northwest corner of Cherokee Avenue and Caraway Street, which was recommended for approval by the Planning and Zoning Board.

Commissioner Scarborough inquired if the rezoning could be limited just to horses; with Martha Bissinger responding she had hoped to have a cow one day. Commissioner Scarborough stated some people use AU for residential; others use it for agricultural; there are homes in the area of Ms. Bissinger's property; and inquired if limiting it to two horses and one cow would be acceptable; with Ms. Bissinger indicating it is acceptable.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Item 16 (Z0103102) limited to two horses and one cow. Motion carried and ordered unanimously.

Item 17. (Z0103103) Eric W. Addington's request for change from GU to AGR on 21± acres located on the east side of D. Johnson Avenue, approximately 0.3 mile north of Harrison Road, which was recommended for approval by the Planning and Zoning Board.

Commissioner Scarborough stated there is sort of a doughnut hole in the property; and requested the applicant explain. Eric Addington stated he contacted the owners to ask to purchase the property, but they did not want to sell it; it is tied up with a family estate and they are unable to come to a meeting of the minds; and he offered to trade for other property that would allow access to a future road, but they turned him down. He stated one day he is sure they will come to him for access, and he will have to deal with it then. Commissioner Scarborough stated it is totally closed. Mr. Addington stated he explained that it was landlocked, but they did not want to sell or trade. Commissioner Scarborough stated because there are wetlands, the density would be one unit per five acres; with Mr. Addington responding he has been told that.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Item 17 (Z0103103) as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

Item 18. (Z0103104) Jeffrey B. Greene and John Gregory Greene's request for a Mixed Use District Boundary Expansion and change from RU-2-15 and GU to BU-1 on 8.985± acres located on the northwest corner of North Carpenter Road and Hammock Trail, which was recommended for approval by the Local Planning Agency and the Planning and Zoning Board.

Commissioner Scarborough stated Mr. Greene visited with the Sherwood Homeowners Association and went over some things; the property to the west and south was recently rezoned as an RV park; there was extensive discussion about that development; and the problem is there are wetlands and it is going be a commercial designation.

John Gregory Greene stated the request is for an extension of an existing mixed use district and a rezoning of 8.985 acres from RU-2-15 to BU-1; on the north edge of the property is a 1.1-acre BU-1 zoned property; and he had an office at that location for the past 18 years and is familiar with the area. He pointed out an existing KOA, Seasons in the Sun development, and Space Coast National Golf Course; and advised the owners and developers are in favor of his plans. He stated he and his brother have a vested interest in the large green shaded area on the map; it is a TU-2 zoning presently with a mixed use district; and the area shown in red on the map is an expansion of the mixed use district that falls within the parameters of the Future Land Use Policy. He stated they received unanimous approval from the Planning and Zoning Board and support from the Sherwood Homeowners Association, which provided a written approval of the rezoning project.

Chairman Carlson stated the middle third of the property is potentially forested wetlands; with Zoning Official Rick Enos advising that is correct. Chairman Carlson inquired if staff walked the property; with Mr. Enos responding no, the opinion is probably based on soil maps.

Mr. Greene stated the current RU-2-15 zoning has rendered the property useless at this time; it is over the density limit in the Comprehensive Plan; and he and his brother are willing to roll the dice with the BU-1 zoning, knowing that a part of the property may have forested wetlands. He stated it would be to their advantage to move forward with the BU-1 zoning now and work around the wetland; it will provide a buffer between the subject property and Seasons in the Sun Resort, which shares a boundary line; and the Seasons in the Sun developer preserved the forested wetlands, and knows of their intention to do the same to provide a buffer. He reiterated the zoning must be changed in order to develop anything on the site.

Commissioner Higgs stated the Board has set a precedent as it has gone through the wetland issues tonight; it does not have a clear focus on how it is going to do it; and until it gets that, it should not take action. She stated there is a possibility of using the property for commercial; but the Board needs to know how it is going to handle the new wetlands policy when looking at the expansion of a mixed use district or the establishment of a new commercial or industrial use; and the Board should handle this item the same as it has the others tonight.

Commissioner O'Brien advised of a letter from Elaine Graham who is concerned about future growth; and requested the applicant be provided with a copy of the letter. He stated Ms. Graham points out that because of global warming, the Board should be worried about drought conditions, and perhaps should be looking to a moratorium on future growth. He stated the final paragraph of the letter suggests the Board could better serve the County if it made water conservation mandatory and used environmental data to put a moratorium on future development; and requested the County Attorney explain what would happen if the Board put a moratorium on future construction. He inquired if the County would be sued and lose all the law suits; with Assistant County Attorney Eden Bentley responding it would depend on the reason for the moratorium. Commissioner O'Brien inquired what would be some of the reasons; with Ms. Bentley responding threat to the public health, safety and welfare; and lack of water might be considered a threat. Commissioner O'Brien noted the Board just issued a level one water alert; with Chairman Carlson advising it was a voluntary level one alert out of five levels. Commissioner O'Brien inquired what would happen if the County enacted a moratorium on construction because its roads were inadequate; with Chairman Carlson responding the County would be required to solve the problem. Ms. Bentley advised the County would have to bring the roads up to some level of service. Commissioner O'Brien inquired while the moratorium was in place, would the County be liable for any property losses; with Ms. Bentley responding if it is a valid moratorium, the County should not be liable for that sort of thing. Commissioner O'Brien stated the moratorium could not last forever; the School Board says the schools are at capacity; and inquired if the Board would want to put a moratorium on construction in certain areas until the schools are brought up to standard; with Ms. Bentley advising that is beyond what she can answer at this meeting. Chairman Carlson inquired if Commissioner O'Brien wants a report. Commissioner O'Brien stated the public deserves an answer; the public is not aware that by creating a moratorium the County would jeopardize itself by forcing it to four-lane roads or take whatever action would be necessary to accommodate the growth, which could put taxes through the roof. He commented on a moratorium because the schools are overcrowded, possibility of lawsuits, and moratoriums on golf courses because of the drought; and stated it is not quite as simple as the Board just saying no, it is going to deny development because it thinks there might be a water shortage next year.

Commissioner Scarborough stated the Board has tabled a number of items because of the new wetland policy; it has said because it may render the property unusable under the zoning classification, that it would be imprudent to rezone; and inquired what does staff anticipate the Board getting in terms of guidance and when will it get it. Ms. Busacca stated an estimate should be given to the Board as to whether or not buildable uplands exist on the properties, which the Board has tabled; and the Board may move forward to rezone if buildable uplands exist for the intended use. She stated in terms of the general policy, staff would like to describe when an analysis is made of wetlands and at what point it wants to make sure the Board is provided with the information about buildable land; it could be a site, percentage or acreage threshold; and the Board would like to have that so everyone understands what the process would be. Commissioner Scarborough stated if he was an applicant with a piece of wetland in the corner of his property, he would chop that off and run the property through because this is becoming massively complex. Mr. Enos stated where this is going is that applicants will be asked to do their wetland determinations upfront; and then the Board will be able to do like it did with the Viera item tonight where it was able to identify where the wetland is and rezone it to something else or leave it out of the rezoning. Commissioner Scarborough stated sometimes the Board would not know where the demarcation line is for the wetland until the study was done unless the applicant wanted to cut into the high property and make sure they had that portion out. Ms. Busacca noted it would also depend on where the wetland was located on the property. Commissioner Scarborough commented on the item that involved the Cruickshank Sanctuary. Ms. Busacca stated the items are tabled to May 3, 2001, and the Board will have a report well before that. Commissioner Scarborough stated to be consistent, this item should be tabled. Mr. Greene requested his item not be scheduled behind the A. Duda & Sons item.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to table Item 18 (Z0103104) to the May 3, 2001 Board of County Commissioners meeting.

Discussion ensued on an appropriate date to reconsider the item, new wetland policy, and notification.

Ms. Busacca stated staff will make every attempt to bring the policy to the Board on April 24, 2001; and she will be happy to send Mr. Greene a copy of the report.

Discussion resumed on a date to reconsider the item and the schedule of zoning meetings.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to table Item 18 (Z0103104) to May 24, 2001. Motion carried and ordered unanimously.

Chairman Carlson inquired if there are any more similar zoning items for the next zoning meeting; with Ms. Busacca responding that is possible. Chairman Carlson inquired if that can be avoided; with Ms. Busacca responding staff will have the report to the Board on April 24, 2001. Commissioner Scarborough inquired how many will be at the next zoning meeting; with Planner Robin Sobrino responding four.

Item 19. (Z0103105) Landon Property Services, Inc.'s request for a CUP for Alcoholic Beverages for On-Premises Consumption in a BU-1 zone on 0.59 acre located on the southeast corner of SR 46 and Turpentine Road, which was recommended for approval by the Planning and Zoning Board.

Commissioner Scarborough stated he asked about getting public comments; the property is in proximity to residential areas; and none of the neighbors who were noticed had objection.

Gianfranco Zabaroni stated the place lost its permit because it was closed for approximately six months, but it has always been a beer and wine bar.

Chairman Carlson inquired what kind of facility is it; with Mr. Zabaroni responding it used to be a beer and wine bar; it is on SR 46 in Mims; and it was closed for approximately six months.

Commissioner Scarborough stated it is reopening, and the neighbors received notice.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Item 19 (Z0103105) as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

Item 20. (Z0103106) Kenneth E. Bittinger's request for change from IU-1 to IU on 0.54± acre located approximately 100 feet north of Greensboro Road, approximately 200 feet east of Tri City Avenue, which was recommended for approval by the Planning and Zoning Board.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Item 20 (Z0103106) as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

Item 21. (Z0101502) Johnny E. Godwin's request for a Mixed Use District Boundary Expansion and change from RU-1-7 to BU-1 on 2.98 acres located on the southwest corner of Wood Street and West New Haven Avenue, which was recommended for denial of the Mixed Use District Expansion by the Local Planning Agency and recommended for approval with a Binding Development Plan by the Planning and Zoning Board.

Johnny Godwin stated the request is to rezone property located on US 192 to BU-1 to a depth of 330 feet which conforms to the current mixed use district; and advised of meetings with Ms. Barkwell who represented the other area homeowners. He stated the homeowners had a concern when he requested the full 465-foot depth that access would be to the rear of the property and that there would be truck traffic through their area; but access to the property will be on the side onto Wood Street. He stated Mr. Hartman of WD Realty who has lots on Wood Street across from his property supports up to 200 feet depth and the rezoning; and noted the property to the west has recently been rezoned to BU-1. He stated he has met with the residents and satisfied their concerns.

Chairman Carlson stated the recommendation of the LPA is for denial; with Mr. Godwin advising that was for the extension of the Mixed Use District. Zoning Official Rick Enos advised the Planning and Zoning Board has since approved the reduced depth of commercial zoning.

Motion by Commissioner Colon, seconded by Commissioner Scarborough, to approve Item 21 (Z0101502) with a Binding Development Plan as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

RESOLUTION, RE: SUPPORTING SENATE BILL 234 AND HOUSE BILL 651 AMENDING
THE FLORIDA STATE RETIREMENT SYSTEM FOR SPECIAL RISK MEMBERS

Steve Jones stated he is present to talk about what has happened to Special Risk retirees under the Florida Retirement System; last year the Board adopted a Resolution supporting the restoration of the 3% retirement benefit for all special risk employees; however, it only covered those people who were on board and had not gotten into the DROP program until after July 1, 2000. He stated this year they are trying to correct that; and requested the Board adopt a Resolution to support the movement.

Chairman Carlson stated the Board will need some information and will contact staff. Commissioner Higgs suggested adopting the resolution; and noted Mr. Gamin probably has resolution wording. Mr. Jones stated yesterday he got a copy of a letter that was done by the Board of County Commissioners in Martin County on this issue.

Robert Gamin submitted copies of the proposed resolution; and stated he is employed by the Brevard County Sheriff's Office, is a member of the FOP Lodge, and is chairman of the Deputy Sheriff's Labor Council. He explained what happened last year in the Legislature with restoration of the 3% accrual level to all active service employees; and stated that left out employees who are retired or who are currently enrolled in the DROP Program. He commented on the surplus in the retirement fund; stated from 1978 to 1993 the Board paid for the retirements to be there; and the State has chipped away at the retirement every year for those men and women who are employed in the Special Risk classification. He requested a resolution be sent this year to the members of the Brevard delegation, Speaker of the House, President of the Senate, and the Governor's Office. He stated his organization and the Sheriff support the legislation.

Discussion ensued on suggested wording and when to consider the resolution.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to adopt Resolution supporting Senate Bill 234 and House Bill 651 to amend the Florida State Retirement System for Special Risk Class Members who retired or entered the DROP Program prior to July 1, 2000. Motion carried and ordered unanimously. (See page for Resolution No. 01-194.)

Mr. Jones commented on the excess funds in the Trust Fund.

Commissioner Colon thanked Mr. Jones and Mr. Gamin for bringing this to the Board's attention; and inquired if they have gone to the municipalities for support. Mr. Gamin stated deputy sheriffs are covered under the State Retirement System, but the municipalities have their own retirement systems. Commissioner Colon stated the municipalities should be able to support the County's employees; and encouraged Mr. Gamin and Mr. Jones to speak to the municipalities. Mr. Gamin advised of the progress of the bills.

Chairman Carlson inquired if Mr. Gamin will be going to Tallahassee to lobby; with Mr. Gamin responding a delegation is going next week. Mr. Jones stated every member of the Brevard Delegation has sponsored or co-sponsored the bills but Representative Bob Allen; and they are working on him.

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to direct Lobbyist Guy Spearman to lobby on behalf of Senate Bill 234 and House Bill 651. Motion carried and ordered unanimously.

ANNOUNCEMENT

Commissioner Colon congratulated Zoning Official Rick Enos for twenty years of service to the County.

Assistant County Manager Peggy Busacca stated Mr. Enos calculated he had attended more than 700 zoning meetings.

Upon motion and vote, the meeting was adjourned at 10:36 p.m.

__________________________________
ATTEST: SUSAN CARLSON, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

________________________
SCOTT ELLIS, CLERK

( S E A L )