December 2, 2004

The Board of County Commissioners of Brevard County, Florida, met in regular session on December 2, 2004, at 5:30 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Ron Pritchard, Commissioners Truman Scarborough, Helen Voltz, and Jackie Colon, Assistant County Manager Peggy Busacca, and Assistant County Attorney Eden Bentley. Absent was: Commissioner Susan Carlson.

The Invocation was given by Chaplain Del Prado, Patrick Air Force Base.

Webelos Dens 1 and 2, Pack 369, Jabari Ivery-Daniel, J’Von Long, Kevin Wuinn, Blayne Ziegler, Matthew Lawrence, Garrett Ives, John Gentry, and Sean Madden, led the assembly in the Pledge of Allegiance.

REPORT, RE: EXECUTIVE SESSION

Motion by Commissioner Colon, seconded by Commissioner Scarborough, to grant permission to advertise and schedule an executive session on December 7, 2004 at 11:30 a.m. or as soon thereafter as possible concerning the Donald Foley v. Brevard County case. Motion carried and ordered unanimously.

REPORT, RE: DISTRICT 5 CHRISTMAS FESTIVITIES

Commissioner Colon advised on Friday, December 10, 2004, at 6:00 p.m. at Gleason Park, on the corner of South Patrick Drive and Yacht Club Boulevard, Indian Harbour Beach, there will be Christmas in the Park; the Melbourne Light Parade begins at 6:00 p.m. on December 11, 2004, from Florida Marketplace traveling south on Babcock Street from Hibiscus Boulevard to New Haven Avenue, then eastward on Strawbridge Avenue and ending at Waverly Place; Palm Bay’s tree lighting will be at 6:30 p.m. at the Community Center on December 3, 2004; and December 4, 2004 will be the Holiday Christmas Lights Parade beginning at 7:00 p.m. She stated there are many other parades, including Merritt Island, and she is sure Chairman Pritchard will advise the public of the dates of those parades.

REPORT, RE: COMMISSIONER CARLSON’S ABSENCE

Chairman Pritchard advised Commissioner Carlson will not be present at the meeting as she is the Board’s representative at the Florida Association of Counties meeting.

REPORT, RE: DISTRICT 2 CHRISTMAS FESTIVITIES

Chairman Pritchard stated the Merritt Island Christmas Parade will be held on December 4, 2004; it begins at Merritt Island High School at 10:00 a.m. and proceeds south on Courtenay Parkway; and it is always well attended. He stated the following week is the Cocoa and Rockledge Parade; it begins at 10:00 a.m.; and it proceeds down Florida Avenue and Forest Avenue. He stated the Cocoa Beach Holiday Parade will be held on December 11, 2004 at 2:00 p.m.; and it begins at the old glass building. He advised the Boat Parade will be held on December 11, 2004.

RESOLUTION, RE: CONGRATULATING EAGLE SCOUT MATTHEW MICHAEL EASON

Chairman Pritchard read aloud a resolution congratulating Matthew Michael Eason for his achievement of the rank of Eagle Scout.

Motion by Commissioner Voltz, seconded by Commissioner Scarborough, to adopt Resolution congratulating Matthew Michael Eason for his accomplishments and achievement of the rank of Eagle Scout. Motion carried and ordered unanimously.

Chairman Pritchard presented the Resolution to Matthew Michael Eason. Mr. Eason stated he worked with the Environmentally Endangered Lands Program; he helped with the Barrier Island Ecosystem Center in Sebastian; and built benches and put up some panels.

PUBLIC HEARING, RE: ITEMS REQUESTED FOR TABLING OR WITHDRAWAL FROM
JULY 12, 2004, AUGUST 9, 2004, SEPTEMBER 20, 2004, AND OCTOBER 11, 2004
PLANNING AND ZONING AGENDAS; AND JULY 15, 2004 AND AUGUST 12, 2004
NORTH MERRITT ISLAND INDEPENDENT SPECIAL DISTRICT BOARD AGENDAS

Chairman Pritchard called for the public hearing to consider items requested for tabling or withdrawal from the July 12, 2004, August 9, 2004, September 20, 2004, and October 11, 2004 Planning and Zoning agendas; and the July 15, 2004 and August 12, 2004 North Merritt Island Dependent Special District Board agendas, as follows:

Chairman Pritchard advised the audience of the procedure for addressing the Board.

Zoning Official Rick Enos stated Item IV.B.1, Suntree Community Developers, Inc. has been tabled to the February 3, 2005 Board of County Commissioners meeting.

Motion by Commissioner Voltz, seconded by Commissioner Scarborough, to table Item IV.B.1; Suntree Community Developers, Inc. to the February 3, 2005 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Mr. Enos stated Item IV.D.1., John S. Isella, should be tabled to the February 3, 2005 Board of County Commissioners meeting.

Motion by Commissioner Voltz, seconded by Commissioner Scarborough, to table Item IV.D.1., John S. Isella, to the February 3, 2005 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Mr. Enos advised Commissioner Carlson requested four items be tabled that are within the Small Area Study; and the Small Area Study should be ready by the middle of February 2005. Commissioner Scarborough inquired if the applicants are aware of the request for tabling. Mr. Enos responded he does not know. Commissioner Voltz stated Mr. Enos can go over what items are being tabled, and find out if anyone is present in the audience for those items. Mr. Enos advised the items being tabled are Items IV.A.1., IV.A.2., IV.A.4., and IV.A.5. Mr. Enos stated Items IV.A.1. and IV.A.2. are owned by Fred Boozer, Item IV.A.4. is owned by Donna Connors, and Item IV.A.5. is owned by Malinda K. Boren and Mark Chaffiot. Chairman Pritchard inquired if there is anyone present in the audience to speak on those items. Attorney Jack Kirschenbaum advised he is present to represent Ms. Connors on Item IV.A.4. for Attorney Phillip F. Nohrr; and Mr. Nohrr is aware it is going to be tabled.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to table Items IV.A.1. and IV.A.2., Fred Boozer, IV.A.4., Donna Connors, and IV.A.5., Malinda K. Boren and Mark Chaffiot to the March 3, 2005 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item IV.A.3. (Z0409204) Joe H. and Marian G. Lee and Joe Hunter Lee, Jr.’s request for change from AU and EU to RU-1-13 on 30.4 acres located on the west side of North Tropical Trail, north of Pioneer Road, which was recommended for denial by the P&Z Board.

Attorney Jack Kirschenbaum stated Attorney Phillip Nohrr is out of town; a letter was forwarded to the Board where the applicant has requested an amendment to the original petition; and a change in zoning classification is being requested to SR with a maximum of 22 lots, and minimum of ½ acre each.

Commissioner Scarborough inquired if the Planning and Zoning Board recommended denial after the change. Mr. Enos responded the Planning and Zoning Board considered the original RU-1-13 zoning request. Chairman Pritchard advised the volume of lots in the project has dropped from approximately 100 lots to 22 lots; and under current zoning a person can go for
the 22 lots. He stated this area was included in Brevard County’s request for a small area plan; it wants to take it out of the small area plan work because it complies with the current zoning; and if anything the other properties in this vicinity will most likely fall into that same category.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item IV.A.3., amended request from AU and EU to SR with a maximum of 22 lots. Motion carried and ordered unanimously.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to remove Item IV.A.3. from the Small Area Plan. Motion carried and ordered unanimously.

Chairman Pritchard advised he missed a speaker card on Item IV.A.3. from Tina Williams. Ms. Williams advised she is fine with the Board’s action.

Item IV.A.6. (NMI40801) William B. and Denise G. Christopher’s request for change from AU to RR-1 on 2.705 acres located on the north side of North Tropical Trail, north of Church Road, which was recommended for denial by the P&Z Board.

Denise Christopher stated in October she came before the Board to request a change in zoning of her property from AU to RR-1 in order to give one acre of property to her daughter and her family. She stated the request falls within the Comprehensive Plan for the area; they are not trying to sell or develop the property for profit; and it will remain in the family. She stated the only other options discussed at the last meeting were to add a mother-in-law house to the property or an addition to the property. She advised with either of the cases it would require her to borrow money; and with the medical condition her husband has and with only one person working it would prove to be a hardship. She stated the last time she brought the map to show the Board what the rezoning would entail; the information provided on that map was from 1990; and she obtained a more recent map from Titusville. She stated the previous map showed her property with 2.99 acres; if the Board will look at the more recent map it shows 3.09 acres; and it does show the difference. She stated other properties within the area have been changed over the years; the most recent one was in 2001; and that property is only 1.25 acres.

Commissioner Scarborough inquired if the zoning was changed to do that on the other property; with Ms. Christopher responding she does not know. Commissioner Scarborough inquired if the AU zoning classification is on that property. Ms. Christopher responded she does not think the map actually shows the AU zoning. Commissioner Scarborough requested Ms. Christopher let the Board look at the map. Ms. Christopher stated she has marked the different areas and zoning. Commissioner Voltz advised there is an RR-1 zoning across the street from the petitioner; and inquired if that is a flag lot that has gone back to RR-1 zoning. Ms. Christopher advised most of the property across the street from her is RR-1; but there are some exceptions.

Chairman Pritchard stated the problem he had with the request is the first map Ms. Christopher brought to the Board was ten years old; she now has a more recent map; and it can make it difficult to make a decision with a map that old. He stated things have changed; he is familiar with the area; and the area is in transition. He advised many of the large estate homes that sit on five or six acres are becoming too costly for people to live in, and in this case there is another reason. He stated a house that was sold in 1996 sold for $680,000; it is on the market today at $1,700,000; the taxes are $10,600; and if it sells for $1,700,000 the taxes will be $28,000. He stated unless a person is extremely wealthy, he or she will be doing anything possible to manage the property. He stated the rule of thumb used in North Merritt Island is nothing less than ½ an acre. He stated it is a unique situation for family to live there to help maintain the groves, but the area in transition is coming of age in terms of how much can people afford to pay to live on the properties.

Commissioner Scarborough stated this situation is compelling; there is a recommendation for denial from the Planning and Zoning Board; looking north and south there is AU; but if there is a desire to move away from AU, rather than doing them separately it may be advantageous to make sure the Board is going in the right direction. He advised he cannot speak to this particular property, but he feels concern when there is a recommendation from the Planning and Zoning Board for denial. He stated there are no people speaking in opposition, but zoning changes occur not normally with overall plans. He stated he cannot vote in favor of the item, but encourages the Board to request a Small Area Plan to create a different type of thought process that he can support.

Commissioner Voltz inquired if Chairman Pritchard would like to approve the request. Chairman Pritchard stated he would like to see it approved because time is of the essence in this situation.

Motion by Commissioner Voltz, seconded by Commissioner Colon, to approve Item IV.A.6. from AU to RR-1. Motion carried and ordered; Commissioner Scarborough voted nay.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to proceed with a Small Area Plan to encompass the area north of Porcher Road to vicinity of West Crisafulli Road, north of Church Street, from the River to Courtenay Parkway. Motion carried and ordered unanimously.

Item IV.A.7. (NMI40802) Andrew and Melissa Banyai’s request for change from GU to SR on 6.22 acres located on the west side of Spartina Avenue, south of Oak Lake Place, which was recommended for approval by the North Merritt Island Dependent Special District Board with a Binding Development Plan limiting development to four homesites, each with minimum of one acre and each home having a minimum of 2,000 square feet of living area and a $4,445 per unit school contribution.

Commissioner Scarborough stated he was told the only issue was the school issue; and because there are school impact fees there is not an issue. He advised if there is no other problem he would like to make a motion. Chairman Pritchard inquired if Commissioner Scarborough will strike the line “and a $4,445 per unit school contribution”. Commissioner Scarborough responded since it is built into the current law it will be the motion.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item IV.A.7. with a Binding Development Plan limiting development to four homesites, each with minimum of one acre and each home having a minimum of 2,000 square feet of living area, and remove $4,445 per unit school contribution. Motion carried and ordered unanimously.

Item IV.A.8. (Z0407303) Steven E. and Marilyn J. Nagel’s request for change from AU to RR-1 on 3.93 acres located on the northeast corner of Valkaria Road and Toby Avenue which was recommended for approval with Binding Development Plan to include a $4,400 school contribution per unit.

Steve Nagel stated his request is to change the zoning on 3.93 acres on the corner of Valkaria Road and Toby Avenue. Chairman Pritchard stated it was recommended for approval with a Binding Development Plan to include the school impact fee again; and the Board should include the same in this motion as the previous motion regarding the school contribution since it is already in place.

Motion by Commissioner Voltz, seconded by Commissioner Colon, to approve Item IV.A.8., and remove $4,400 per unit school contribution. Motion carried and ordered unanimously.

Item IV.A.9. (NMI40706) John R. Bunkley, Trustee’s request for change from GU and RU-1-13 to all RU-1-13 on 5.35 acres located on the west side of North Tropical Trail, north and opposite of the western terminus of Grant Road, which was recommended for denial by the Planning and Zoning Board.

Commissioner Scarborough stated this item is a school issue; and inquired if any Commissioner has a problem with the item. Chairman Pritchard responded no.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item IV.A.9. for a change from GU and RU-1-13 to all RU-1-13 with Binding Development Plan, and remove paragraph dealing with school contribution. Motion carried and ordered unanimously.

Item IV.A.10. (Z0408101) Robi Roberts, Trustee’s request for change from AU to RU-1-11 on 23.31 acres located on the south side of Latimer Street, west of U.S. 1, which was recommended for denial by the Planning and Zoning Board.

Attorney John Evans, representing Robi Roberts, Trustee, stated the applicant has amended her request to EU-2 zoning. He stated the property is located in Mims off of U.S. 1; north of the property is a large trailer park; east of the property is U.S. 1 commercial zoned property; and west of the property is the FEC railroad spur. He noted west of the railroad spur are large single family lots; and to the south of the property is EU-2 zoning. He stated his client initially requested RU-1-11 zoning; after listening to the neighbors concerns it seemed to be inappropriate zoning for the area; the request has been amended to EU-2 zoning with a Binding Development Plan; and he has a copy of the Binding Development Plan for the Board. He advised the Binding Development Plan is a product of meeting with the neighbors. He stated they have agreed that the density will be limited to no more than two units per acre; there will be a 25-foot buffer along the East Coast Railway; it is to buffer visually the large lot homes to the west; and there will be no vehicular access to Folsom Road. He noted golf cart and pedestrian access will be allowed so the residents can go to the Walkabout Country Club; the subdivision will have deed restrictions and an architectural control committee so the architectural viability of the neighborhood will remain intact; the homeowners association will obligate to maintain the 25-foot buffer area; and if the homeowners association does not maintain it, Code Enforcement can force it to maintain it. He stated the minimum lot will be 100 feet in width, with a minimum lot size of 10,000 square feet; the information has been given to the neighbors; and there was a meeting at Commissioner Scarborough’s office where there was general consensus that it is appropriate for the area as a transition from the U.S. 1 area to the large lots to the west. He advised the property is in compliance with the land use designation in the area. He stated he would appreciate the Board’s approval, subject to submitting a signed Binding Development Plan.

Commissioner Scarborough stated there was some discussion about the dynamics of the area, and if it should be a separately titled strip of land; and he does not see anything in the amended Binding Development Plan regarding that. He inquired if the petitioner and the neighbors had time to touch on that further; with Mr. Evans responding it was Todd Peetz’s intent in drafting
the Binding Development Plan. Todd Peetz stated the buffer area is separated as a common tract in the Binding Development Plan. Mr. Enos advised it is described in paragraph 5A. Mr. Evans stated it has to come back before the Board and it can be clarified. Commissioner Scarborough stated there are some advantages; what is found is that homeowners encroach into common areas; and soon it becomes one thing or another.

Ronnell Burgamy stated he lives about 90 feet from the property; and based on what Commissioner Scarborough said he has no disagreement with it.

Commissioner Scarborough stated approximately 60 notices were mailed out. He stated the lot size is a little less than a quarter acre; that which is not developed remains as open areas; and so it is a trade-off. He advised that was the only thing that seemed to bother the neighbors.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item IV.A.10. as amended to EU-2 with a Binding Development Plan. Motion carried and ordered unanimously.

Item IV.A.11. (Z0410106) Brevard County Board of County Commissioners’ request on its own motion and pursuant to Future Land Use Policy 15.2 authorized administrative rezoning on property owned by CJJJT, Inc., which proposes to change the zoning classification from GU to PIP on 4.19 acres located on the south side of Grissom Parkway, west of Camp Road, which was approved by the Planning and Zoning Board.

Commissioner Scarborough stated a strip of land along Grissom Parkway was in the Comprehensive Plan designed PIP. He stated Tom Mahone came forward and said he would like to move forward with it, but the zoning did not take place. He stated anytime there is an inconsistency between the zoning and the Comprehensive Plan the Board should have the Comprehensive Plan design the zoning. He stated there are three options; the first option is to administratively rezoned all the properties to be in conformity with the Comprehensive Plan; the second option is to change the Comprehensive Plan to residential or something else; and the third option is to go into a Small Area Plan in design and look at it in a whole new concept.

Tom Mahone stated the property has a lot of easements on it. He stated there is a 50-foot canal easement, and a 75-foot County maintained ditch. He stated when he bought the piece of property he expected an administrative rezoning. He noted there are wetlands on the property also. He stated going to PIP where the setbacks and the minimum size to build hurts him; he does not mind if he could get grandfathered in on those two items; and at this time there are no plans to do anything with it. He stated there is not much property left with all the setbacks, wetlands, and easements. Commissioner Scarborough stated the Board has three options: administratively rezone not only this property but the adjoining properties, change the Comprehensive Plan to something other than PIP, or go to a Small Area Plan. He stated those are the options that the County can legally undertake. Mr. Mahone stated there is another piece of property in the same Future Land Use Plan that is BU-1 and BU-2; the neighbor next door wants BU-1 or BU-2; and he wants BU-1 or BU-2. Commissioner Scarborough stated the BU-1 is not consistent with the PIP, so it would be better to go to Option 3 to do a Small Area Plan to change it to something other than the Industrial PIP. He advised the Comprehensive Plan will have to be changed to do the zoning suggested; and the Board could proceed with a Small Area Plan, and not proceed with the zoning at this time.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve a Small Area Plan for the area. Motion carried and ordered unanimously.

Mr. Mahone stated it has costs the applicant approximately $6,000 because the Planning and Zoning Office said the building needed to be moved on his property; he moved it to the back of the property; it was then involved in wetlands; and the delays were horrible getting the building permits.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to deny Item IV.A.11. Motion carried and ordered unanimously.

Commissioner Scarborough requested Assistant County Manager Peggy Busacca talk with Tom Mahone to see if there is something the County could help with.

Item IV.A.12. (Z0410203) Joyce Phillips, Trustee’s request for change from BU-1 to RU-1-15 on 2.53 acres located on the northwest corner of Crescent Beach Drive and Highway A1A, which was recommended for approval by the P&Z Board.

Motion by Commissioner Voltz, seconded by Commissioner Scarborough, to approve Item IV.A.12. as recommended by the P&Z Board. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RECOMMENDATIONS OF THE PLANNING AND ZONING BOARD
OF NOVEMBER 8, 2004

Chairman Pritchard called for the public hearing to consider recommendations by the Planning and Zoning Board at its November 8, 2004 meeting, as follows:

Item IV.B.2. (Z0411501) Earl J. and Denise Brookes-Holmes’ request for change from RU-1-9 to RR-1 on 1.71 acres located on the east side of Ohio Street, south of Miami Avenue, which was recommended for approval with Binding Development Plan limiting number of horses to three horses.

Commissioner Colon inquired if the neighbors have been notified what he wants to do.

Earl J. Brookes-Holmes responded yes; he has a posted sign that he had notarized saying he posted the sign where the road is at; he has had a real estate agent who lives down the road ask about it; and he has had many people ask him what the sign was for. He advised he told everyone who asked that the sign was posted because he wants to have horses on the property. He stated no one has complained to him about it.

Commissioner Colon stated her concern is once the zoning of the property is changed, it may change the dynamics of the area; and she does not want to rush through this. She stated she would like to table the item until the next Board of County Commissioners meeting.

Zoning Official Rick Enos advised all property owners within 500 feet are notified by mail; staff received a letter of objection from Janice and Michael Banyon; and they objected to the request due to the fact it would impact property values in the area and would create an unhealthy environment regarding air quality and sanitary conditions. Commissioner Colon inquired if it has to be three horses. Mr. Enos responded whatever the Board agrees to because a binding development plan is a voluntary agreement between the applicant and the Board; and if the applicant is willing to offer less than that the Board can consider it. Commissioner Colon stated the Board has been down the road before and problems were encountered because of the smell that sometimes happens when there are too many animals, and where the barn would be. She stated she would feel more comfortable if the item was tabled; and she can come back to the Board with a comfort level among the citizens. She stated the people who live adjacent to Mr. Brookes-Holmes need to be aware of the change because they moved into the community with certain rules and regulations; and she wants to make sure the neighbors are comfortable with the change.

Motion by Commissioner Colon, seconded by Commissioner Scarborough, to table Item IV.B.2. to the December 14, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Mr. Brookes-Holmes stated when he came to the Board the first time there was an objection to six horses because according to the Brevard County rule book that is what the property can have; he then brought it down to three horses at that time; no one brought up any objections at that point; but now there are objections again. He inquired what is the Commissioner looking for. Commissioner Colon responded she wants to hear what the community has to say that lives in the area; she has experienced the issue in the past when too many horses have been approved; and she will be happy to walk the neighborhood with Mr. Brookes-Holmes to talk to the neighbors and let them know what he wants to do.

Item IV.B.3. (Z0411101) Charles B. Foster’s request for change from GU to AU on 1.01 acres located on the north side of Blair Street, west of Knoxville Avenue, which was recommended for approval by the P&Z Board.

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

Charles Foster inquired when does the new zoning officially take place. Commissioner Scarborough responded now. Mr. Foster stated he originally put an orange sign on the property stating it was up for rezoning; and inquired when does he need to take the sign down. Commissioner Scarborough responded the hearing is over so there is no reason to keep the sign on the property.

Item IV.B.4. (Z0411201) Grace Methodist Church’s request for removal of an existing Binding Site Plan in a RU-1-9 zoning classification on 0.78 acre located on the south side of Hatfield Avenue, east of N. Courtenay Parkway, which was recommended for approval by the P&Z Board.

Beth Hoffmanns stated Grace United Methodist Church is requesting removal of an existing Binding Site Plan on three lots that the church owns south of the church property. She stated they want to do some building, and will probably use those lots for paved parking. She stated they are working with BRPH Architectural Firm trying to figure out the best way to rebuild the facilities because of extensive damage due to the hurricanes.

Chairman Pritchard advised the item was recommended for approval by the Planning and Zoning Board.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item IV.B.4. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.B.5. (Z0411301) Abbott Manufactured Housing, Inc., Leonard Hearndon, Linda Stryker, Loretta Mikulskis and Thomas Scott’s request for Small Scale Plan Amendment

(04S.14) that proposes to change the Future Land Use Map designation from Community Commercial to Residential 10; and a change of classification from AU and BU-1 to RU-2-8 on 6.03 acres located on both sides of U.S. 1, north of Barefoot Boulevard, which was recommended for approval of Residential 10 by the LPA and approved RU-2-8 with Binding Development Plan limiting development to “over 55” community by the P&Z Board.

Motion by Commissioner Voltz, seconded by Commissioner Scarborough, to approve Item IV.B.5. as Residential 10 as recommended by the LPA, and approved RU-2-8 with Binding Development Plan limiting development to “over 55” community. Motion carried and ordered unanimously.

Item IV.B.6. (Z0408201) Gloria Cathey, as Trustee’s request for a change from RU-1-7 to RU-2-15 on 0.1 acre located on the southwest corner of McKinley Avenue and Azure Lane, which was recommended for approval by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item IV.B.6. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.B.7. (Z0409102) WWG Asphalt Company’s request for CUP for Solid Waste Management Facility (Transfer Station only) in IU-1 on 4.5 acres located on the west side of Industrial Drive, south of Broadway Boulevard, which was recommended for approval by the P&Z Board.

Commissioner Scarborough advised David Houser, William E. Parkes, Jr., and Tom Yardley met at his office today; his staff has done some research contacting EPA and other groups; and after they left today his staff had another conversation with Atlanta, Georgia. He stated the trucks bring in oil spills, oil from the bilges of ships, and they have a railroad in a very industrial area in Cidco Park. He stated it does not seem to be a zoning issue. He stated where the tanks are there is some protection from oil spills; and requested there be protection from oil spills where the truck’s pull in and the tanks are located, and when pumping from the tanks to the trucks. He stated if WWG Asphalt Company will stipulate to that, he will move the item. David Houser, representative of WWG Asphalt Company, stated that would be okay.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item IV.B.7. with a stipulation that there be protection from oil spills where the trucks pull in and the tanks are located, and when pumping from the tanks to the trucks. Motion carried and ordered unanimously.

Item IV.B.8. (Z0410202) Daniel Freeman’s request for change from BU-1 to TR-2 on 0.67 acre on the west side of Burnett Road, north of Catalina Drive, which was recommended for approval by the P&Z Board.

Motion by Commissioner Voltz, seconded by Commissioner Scarborough, to approve Item IV.B.8. as recommended by the P&Z Board. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RECOMMENDATIONS OF THE NORTH MERRITT ISLAND
DEPENDENT SPECIAL DISTRICT BOARD OF NOVEMBER 18, 2004

Chairman Pritchard called for the public hearing to consider recommendations by the North Merritt Island Dependent Special District Board at its November 18, 2004 meeting, as follows:

Item IV.D.2. (NMI40901) Michael Gaich, Trustee’s request for change from AU to IN(L) on 8.0 acres located on the west side of North Courtenay Parkway, across from Kings Way and south of Church Road, which was recommended for approval by the North Merritt Island Dependent Special District Board.

Commissioner Scarborough stated in his notes it said access to Courtenay Parkway; and inquired what is that about. Zoning Official Rick Enos responded the only concern expressed by the public was access to the property because there is not a median cut along the frontage of the property; users of the facility will need to do U-turns; it was more a concern expressed about the site in general as opposed to the use; and it is not so much a zoning issue as a traffic design issue, which is generally addressed at the site plan stage.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.D.2 as recommended for approval by the North Merritt Island Dependent Special District Board. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ADMINISTRATIVE REZONINGS

Chairman Pritchard called for the public hearing to consider Administrative Rezonings of November 8, November 10, and November 18, 2004, as follows:

Item IV.E.1. Section 10, Township 26, Range 36, Parcel 2, owned by Diocese of Orlando, proposed change from AU to IN(L), which was recommended for approval by the P&Z Board.

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

Item IV.E.2. Section 21, Township 20G, Range 34, Sub. AM, Block 8, Lots 5 through 9, owned by First Baptist Church of Aurantia, Inc., proposed change from AU to IN(L), which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.2. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.3. Section 37, Township 20G, Range 34, Sub. LH, Block 8, Lots 1 through 6 and 37 through 42, owned by First Free Will Baptist Church of Scottsmoor, proposed change from RU-1-7 with CUP Z-10437 to IN(L) and removal of CUP Z-10437, which was recommended for approval by the P&Z Board.

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

Item IV.E.4. Section 37, Township 20G, Range 34, Sub. 02, Block 29, Lots 8 through 12, owned by Church of God, proposed change from RU-1-7 to IN(L), which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.4. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.5. Section 41, Township 20G, Range 34, Sub. 06, Block 51, Lots 1 through 10; and Sub. 07, Block 56, Lots 1 through 10, owned by First Baptist Church of Scottsmoor, proposed change from RU-1-7 to IN(L), which was recommended for approval by the P&Z Board.

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

Item IV.E.6. Section 20, Township 20G, Range 35, Sub. 02, Block 1, Lots 1 through 14, Block 2, Lots 1, 2, 3, and 7 through 28, and all of vacated Vernon Avenue, owned by WC Griffin Evangelistic Association, Inc., proposed change from AU to IN(L), which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.6. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.7. Section 08, Township 21, Range 35, Parcel 511, owned by St. Mary’s Baptist Church, proposed change from RU-1-7 with CUP Z-8965 to IN(L) and removal of CUP Z-8965, which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.7. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.8. Section 08, Township 21, Range 35, Parcel 543, owned by Mt. Calvary Church of God in Christ Restoration Ministries, Inc., proposed change from RU-1-7 to IN(L), which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.8. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.9. Section 17, Township 21, Range 35, Sub. 01, Lots 11.05 and 11.06, owned by Mt. Sinai Missionary Baptist Church, proposed change from RU-1-7 with CUP Z-8138 to IN(L) and removal of CUP Z-8138, which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.9. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.10. Section 17, Township 21, Range 35, Sub. 02, Lot E.05, owned by Church of God in Christ Trustees, proposed change from RU-1-7 to IN(L), which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.10. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.11. Section 17, Township 21, Range 35, Sub. 04, Lots 1 and 7, owned by Shiloh A.M.E. Church of Mims, proposed change from BU-1 and RU-1-7 to IN(L), which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.11. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.12. Section 17, Township 21, Range 35, Sub. 25, Block S, Lot 1.01, owned by Church of God, Stanley Hepburn, Trustee, proposed change from RU-1-7 to IN(L), which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.12. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.13. Section 17, Township 21, Range 35, Sub. 26, Lot J6, owned by St. John Primitive Baptist Church, proposed change from RU-1-7 with CUP Z-7409 to IN(L) and removal of CUP Z-7409, which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.13. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.14. Section 17, Township 21, Range 35, Sub. 50, Lots 26-31, 37-42, vacated street north of Lots 37-42, south half of vacated alley north of Lots 26-31, north half of vacated alley south of Lots 37-42, Lots 19-21, and north half of vacated alley adjacent on south except ORB 3251, PG 2340, owned by First Baptist Church of Mims, Inc., proposed change from RU-1-7 to IN(L), which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.14. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.15. Section 17, Township 21, Range 35, Sub. 51, Lots 4, 10 and vacated alley between, owned by Mims Methodist Church, proposed change from RU-1-9 with CUP Z-6881 to IN(L) and removal of CUP Z-6881, which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.15. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.16. Section 17, Township 21, Range 35, Sub. 52, Lots 66 and 67, Parcel 510.1, owned by St. James Missionary Baptist Church, proposed change from AU to IN(L), which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.16. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.17. Section 17, Township 21, Range 35, Sub. 54, Block E, Lots 1, 2, and 3 except west 30 feet, and Lots 4-7, owned by Church of God, Trustees, proposed change from RU-1-7 to IN(L), which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.17. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.18. Section 18, Township 21, Range 35, Parcels 24 and 26, owned by Tabernacle Baptist Church, Inc., proposed change from AU and RU-1-9 to IN(L), which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.18. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.19. Section 18, Township 21, Range 35, Parcels 505 and 517, owned by Diocese of Orlando, proposed change from AU and RR-1 to IN(L), which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.19. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.20. Section 20, Township 21, Range 35, Parcels 544 and 775, Sub. AS, Block F, owned by New Fellowship Baptist Church, Inc., proposed change from AU and RU-1-11 to IN(L), which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.20. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.21. Section 20, Township 21, Range 35, Parcels 778, 779, and 780, Section 29, Parcel 11, owned by First Christian Church of Titusville, Inc., proposed change from AU and RU-1-11 with CUP Z-9916 on Parcel 11 to IN(L) and removal of CUP Z-9916, which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.21. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.22. Section 29, Township 21, Range 35, Parcel 27, owned by LaGrange Baptist Church, proposed change from AU to IN(L), which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.22. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.23. Section 30, Township 21, Range 35, Parcel 505, owned by Faith Baptist Church of Titusville, Inc., proposed change from RU-1-11 with CUP Z-9200 to IN(L) and removal of CUP Z-9200, which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.23. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.24. Section 28, Township 22, Range 35, Sub. 01, Block 34, Lots 10-20, owned by Florida Conference Association of Seventh Day Adventists, proposed change from RU-1-11 with CUP Z-6701 on Lots 11-20 to IN(L) and removal of CUP Z-6701, which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.24. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.25. Section 28, Township 22, Range 35, Sub. 01, Block 61, Lots 12-17, owned by First Free Will Baptist Church of Titusville, Inc., proposed change from RU-1-11 to IN(L), which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.25. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.26. Section 31, Township 23, Range 36, Parcel 511, owned by Church of God, proposed change from RU-1-7 to IN(L), which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.26. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.27. Section 01, Township 24, Range 36, Sub. 25, Block 13, Lots 10, 11, 16, and 17, Block 14, Lots 10-13, owned by Discovery Christian Church of Florida, Inc., proposed change from GU with CUP Z-9685 to IN(L) and removal of CUP Z-9685, which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.27. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.28. Section 35, Township 24, Range 35, Parcel 11, owned by Central Community Church, proposed change from AU and TR-1 to IN(L), which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.28. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.29. Section 06, Township 24, Range 36, Parcel 263, owned by Friendship Baptist Church, proposed change from AU to IN(L), which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.29. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.30. Section 06, Township 24, Range 36, Parcel 801, owned by Pentecostal House of Prayer, Inc., proposed change from AU to IN(L), which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.30. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.31. Section 06, Township 24, Range 36, Parcel 818 (RU-2-6 zoned portion only), owned by First Assembly of God Cocoa, Inc., proposed change from RU-2-6 with binding concept plan and CUP Z-8125 to IN(L) and removal of BCP and CUP Z-8125, which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.31. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.32. Section 07, Township 24, Range 36, Parcels 16 and 16.1, owned by Mt. Carmel Missionary Baptist Church of City Point, Inc., proposed change from AU to IN(L), which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.32. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.33. Section 08, Township 24, Range 36, Parcel 252, owned by Gloria Dei Episcopal Church, Inc., proposed change from AU to IN(L), which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.33. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.34. Section 22, Township 24, Range 35, Parcels 2 and 25, owned by First Church of the Bible Covenant of Cocoa, proposed change from GU to IN(L), which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.34. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.35. Section 35, Township 24, Range 35, Parcels 4, 6, and 18, owned by Parker Memorial Baptist Church, proposed change from BU-2 and RU-1-7 with CUP Z-10644 on Parcel 4 (RU-1-7 zoned portion only) and CUP Z-7457 on Parcel 18, to IN(L) and removal of CUP Z-10644 and Z-7457, which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.35. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.36. Section 36, Township 24, Range 35, Parcels 513, 517, 518, 520, and 521, owned by Friendship Primitive Baptist Church, Inc., proposed change from BU-1, TR-1 and TR-3 with CUP Z-7813 on Parcels 513, 518, and 520, and Z-10509 on Parcel 521 to IN(L) with removal of CUP Z-7813 and Z-10509, which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.36. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.37. Section 36, Township 24, Range 35, Parcels 768 and 778, owned by West Cocoa Mission, Inc., proposed change from GU and TR-1 to IN(L), which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.37. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.38. Section 10, Township 24, Range 36, Parcel 14, owned by Brevard Calvary Ministry, Inc., proposed change from RR-1 with CUP Z-7110 to IN(L) with removal of CUP Z-7110, which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.38. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.39. Section 14, Township 24, Range 36, Parcels 271 and 292, owned by Christian & Missionary Alliance Church of Merritt Island, Inc., proposed change from RU-1-11, RU-2-15 and BU-1 with CUP Z-4305 to IN(L) with removal of CUP Z-4305, which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.39. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.40. Section 14, Township 24, Range 36, Parcel 540, owned by Diocese of Orlando, proposed change from AU to IN(L), which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.40. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.41. Section 19, Township 24, Range 36, Sub. 75, Block 5, Lots 5-16, owned by Shield of Faith Ministries (Pentecostal Holiness) Church, Inc., proposed change from RU-2-10 and BU-2 with CUP Z-8373 on Lots 6-15 to IN(L) with removal of CUP Z-8373, which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.41. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.42. Section 19, Township 24, Range 36, Sub. 75, Block 4, Lots 6-15, Block 10, Lots 1-8 and 17-24, owned by Clearlake First Baptist Church, proposed change from RU-1-7 and RU-2-10 to IN(L), which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.42. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.43. Section 19, Township 24, Range 36, Sub. 75, Block 17, Lots 1 and 2, owned by Mt. Calvary independent Baptist Church, proposed change from RU-1-7 with CUP Z-9010 to IN(L) and removal of CUP Z-9010, which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.43. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.44. Section 20, Township 24, Range 36, Sub. 59, Lots 18 and 19, owned by Concilio Delglesia DeCristo Misionera MI, Inc., proposed change from BU-1-A with binding concept plan to IN(L) and removal of binding concept plan, which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.44. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.45. Section 22, Township 24, Range 36, Parcel 761, owned by Altar Church of Christianity, Inc., proposed change from RU-1-9 to IN(L), which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.45. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.46. Section 22, Township 24, Range 36, Parcel 764, owned by Greater Mt. Zion Baptist Church, Trustees, proposed change from RU-1-7 with CUP Z-8232 to IN(L) and removal of CUP Z-8232, which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.46. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.47. Section 22, Township 24, Range 36, Parcel 769, owned by Hugh Small, proposed change from RU-1-7 with CUP Z-3667 to IN(L) and removal of CUP Z-3667, which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.47. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.48. Section 22, Township 24, Range 36, Parcels 774, 780, 784, and 785, owned by Greater Mount Olive A.M.E. Church of Merritt Island, Inc., proposed change from AU to IN(L), which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.48. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.49. Section 23, Township 24, Range 36, Sub. BX, Lots 1.01, 1.02, and 2.01, owned by Palm Chapel Assembly of God, Inc., proposed change from RU-2-15 with CUP Z-
4556 on Lots 1.01 and 1.02 to IN(L) and removal of CUP Z-4556, which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.49. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.50. Section 23, Township 24, Range 36, Sub. BX, Lot 3.01, owned by First Christian Church of Merritt Island, proposed change from RU-2-15 with CUP Z-3880 to IN(L) and removal of CUP Z-3880, which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.50. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.51. Section 23, Township 24, Range 36, Parcel 255, owned by Merritt Island Community Church, proposed change from RU-1-11 with CUP Z-8164 to IN(L) and removal of CUP Z-8164, which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.51. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.52. Section 26, Township 24, Range 36, Parcels 260 and 292, owned by Mt. Tabor Primitive Baptist Church, proposed change from AU and RU-2-10 to IN(L), which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.52. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.53. Section 26, Township 24, Range 36, Parcels 751 and 753, Sub. 75, Lots 9 and 10, Sub. 80, Lot 123, owned by Grace Methodist Church, proposed change from BU-1 and RU-1-9 with CUP’s Z-5768 on Parcel 751 and Z-6194 on Parcel 753 and Lots 9 and 10 with BSP to IN(L) retaining BSP on Lots 9 and 10 and removing CUP’s Z-5768 and Z-6194, which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.53. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.54. Section 26, Township 24, Range 36, Parcel 757, owned by Faith Lutheran Church, proposed change from AU to IN(L), which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.54. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.55. Section 26, Township 24, Range 36, Sub. 77, Lots 1, 2, and 3, owned by Antioch Baptist Church of Merritt Island, proposed change from RU-1-9 to IN(L), which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.55. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.56. Section 29, Township 24, Range 36, Sub. 53, Block B, Lots 25, 26, and south 50 feet of Lot 27, owned by Cocoa Evangelistic Center, proposed change from RU-2-16 with CUP Z-5365 to IN(L) and removal of CUP Z-5365, which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.56. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.57. Section 30, Township 24, Range 36, Sub. 76, Block A, Lot 11, owned by Church of God of Prophecy, proposed change from RU-1-7 to IN(L), which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.57. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.58. Section 32, Township 24, Range 36, Parcel 271, owned by Apostolic Church of Jesus, Inc., proposed change from RU-2-15 with CUP Z-7945 to IN(L) and removal of CUP Z-7945, which was recommended for approval by the P&Z Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.58. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.59. Section 13, Township 23, Range 35, Sub. 01, Block A, Lots 31.02, 31.03, and 32, owned by Victory Baptist Church of Cocoa, Inc., proposed change from AU and RR-1 with CUP Z-10590 on Lots 31.02 and 31.03 to IN(L) and removal of CUP Z-10590, which was recommended for approval by the Port St. John Dependent Special District Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.59. as recommended by the Port St. John Dependent Special District Board. Motion carried and ordered unanimously.

Item IV.E.60. Section 14, Township 23, Range 35, Sub. JZ, Block 297, Lot 7, owned by Port St. John Florida Congregation of Jehovah’s Witnesses, Inc., proposed change from RU-1-9 with CUP Z-7977 to IN(L) and removal of CUP Z-7977, which was recommended for approval by the Port St. John Dependent Special District Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.60. as recommended by the Port St. John Dependent Special District Board. Motion carried and ordered unanimously.

Item IV.E.61. Section 14, Township 23, Range 35, Sub. JZ, Block 370, Lot 1, owned by All Saints Church, Inc., proposed change from RU-1-9 with CUP Z-7614 to IN(L) and removal of CUP Z-7614, which was recommended for approval by the Port St. John Dependent Special District Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.61. as recommended by the Port St. John Dependent Special District Board. Motion carried and ordered unanimously.

Item IV.E.62. Section 23, Township 23, Range 35, Sub. JM, Block 81, Lot 11, owned by Christian Church at Port St. John, proposed change from RU-1-9 to IN(L), which was recommended for approval by the Port St. John Dependent Special District Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.62. as recommended by the Port St. John Dependent Special District Board. Motion carried and ordered unanimously.

Item IV.E.63. Section 23, Township 23, Range 35, Sub. JM, Block 81, Lot 12, owned by Sunrise Lutheran Church of Port St. John, Inc., proposed change from RU-1-9 with CUP Z-7510 to IN(L) and removal of CUP Z-7510, which was recommended for approval by the Port St. John Dependent Special District Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.63. as recommended by the Port St. John Dependent Special District Board. Motion carried and ordered unanimously.

Item IV.E.64. Section 24, Township 23, Range 35, Sub. 25, Block 35, Lot 7, owned by Port St. John First Baptist Church, Inc., proposed change from RU-1-9 with CUP Z-10656 to IN(L) and removal of CUP Z-10656, which was recommended for approval by the Port St. John Dependent Special District Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.64. as recommended by the Port St. John Dependent Special District Board. Motion carried and ordered unanimously.

Item IV.E.65. Section 18, Township 23, Range 36, Sub. 50, Block 372, Lot 1, owned by First United Methodist Church of Port St. John, Inc., proposed change from RU-1-9 with CUP Z-7554 to IN(L) and removal of CUP Z-7554, which was recommended for approval by the Port St. John Dependent Special District Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.65. as recommended by the Port St. John Dependent Special District Board. Motion carried and ordered unanimously.

Item IV.E.66. Section 19, Township 23, Range 36, Sub. 02, Lot 4.12, owned by Frontenac Baptist Church Holding Corp. Inc., proposed change from RU-2-10 with CUP Z-7189 to IN(L) and removal of CUP Z-7189, which was recommended for approval by the Port St. John Dependent Special District Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.66. as recommended by the Port St. John Dependent Special District Board. Motion carried and ordered unanimously.

Item IV.E.67. Section 23, Township 23, Range 36, Parcel 255, owned by Chiesa Christiana Christian Church of Courtenay Florida, proposed change from AU to IN(L), which was recommended for approval by the North Merritt Island Dependent Special District Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.67. as recommended by the North Merritt Island Dependent Special District Board. Motion carried and ordered unanimously.

Item IV.E.68. Section 23, Township 23, Range 36, Parcel 259.1, owned by North Merritt Island United Methodist Church, Inc., proposed change from AU to IN(L), which was recommended for approval by the North Merritt Island Dependent Special District Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.68. as recommended by the North Merritt Island Dependent Special District Board. Motion carried and ordered unanimously.

Item IV.E.69. Section 27, Township 23, Range 36, Parcels 256 and 261, owned by St. Luke’s Episcopal Church of Courtenay Florida, Inc., proposed change from AA to IN(L), which was recommended for approval by the North Merritt Island Dependent Special District Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.69. as recommended by the North Merritt Island Dependent Special District Board. Motion carried and ordered unanimously.

Item IV.E.70. Section 34, Township 23, Range 36, Parcels 760 and 768 (AU zoned portion only), owned by Orsino Baptist Church of Merritt Island, Inc., proposed change from AU to IN(L), which was recommended for approval by the North Merritt Island Dependent Special District Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.70. as recommended by the North Merritt Island Dependent Special District Board. Motion carried and ordered unanimously.

Item IV.E.71. Section 02, Township 24, Range 36, Parcels 513 and 525, owned by Calvary Chapel of Merritt Island, Inc., proposed change from BU-1, BU-2 and TR-2 with CUP Z-5693 to IN(L) on TR-2 zoned portion only and removal of CUP Z-5693 on all, which was recommended for approval by the North Merritt Island Dependent Special District Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item IV.E.71.as recommended by the North Merritt Island Dependent Special District Board. Motion carried and ordered unanimously. (See pages for Zoning Resolutions.)

PUBLIC HEARING, RE: REGULATING OUTDOOR MUSIC ACCESSORY TO OUTDOOR
RESTAURANT SEATING

Chairman Pritchard called for the public hearing to consider an ordinance regulating outdoor music accessory to outdoor restaurant seating.

Zoning Official Rick Enos stated the ordinance was created with input by all sides; Planner Ryan Rusnak has a sound meter to show the Board what the various sound levels are that are proposed in the ordinance; and it is the second reading of the ordinance. Chairman Pritchard advised that Mr. Rusnak is not present at this time; the Board can hear the speakers first; and Mr. Rusnak can speak afterwards.

Bob Rish stated he would like the Board to accept the recommendations of County staff and Citizens Advisory Committee as presented in the proposed outdoor music ordinance; it provides objective, measurable standards that can be understood and conformed to by musicians and video operators; and it helps preserve Brevard’s cultural and economic health, while providing clearly defined and understandable standards for public use. He stated it provides a reasonable compromise between the various parties interested in the issue, as agreed upon by the Citizens Advisory Committee, of which he was a member. He stated it appears to satisfy all the various legal issues considered by Commissioners, staff, and special master, and retains an option to apply for special event permits for truly special occasions. He advised the proposed ordinance can bring closure to the issue, which has exhausted much time and patience for all; and requested the Board accept the recommendations as presented. He stated if the Board does accept the recommendations as presented, he is asking it to take action to exempt future outdoor music accessories to outdoor seating when it is in compliance with the ordinance. He stated the loud and raucous provision is entirely subjective and potentially arbitrary; it was used repeatedly this summer to arrest individuals for music levels that were lower than even the current noise standards; and community and County government efforts to find an equitable solution to the outdoor music issue will be compromised if music that is otherwise compliant with the new ordinance can still be cited as loud and raucous. He requested the Board direct staff to prepare and present a suitable amendment to the existing noise control regulations to exempt otherwise compliant outdoor music.

Amado Ohland stated he owns and operates a web design business in the area, and performs in a local band on the weekends. He stated he wants to speak in support of an ordinance that allows business owners to provide live outdoor music to their patrons, and provide clean, clear, and measurable guidelines for them to know they are not violating nearby residents’ rights
under the law. He stated he supports the comments made by Mr. Rish; and he would encourage the Board to consider the exemption regarding the loud and raucous for the reasons Mr. Rish stated.

Charles Watzke stated he has five copies of his presentation to present to the Board. He stated the loud and raucous has no sound levels. He stated the existing noise ordinance says music can be played from 7:00 a.m. to 10:00 p.m. at 65 decibels on commercial property; and from 10:00 p.m. to 7:00 a.m. in the morning at 55 decibels. He stated Brevard County took a decibel reading on his property and was found to be inconclusive due to traffic noise being louder than the music being played. He inquired how can a person complain about something that is lower than the surrounding noise. He stated there has to be some measure of sound regulation of how loud the music can be played; and a decibel reading needs to be set for how loud the music can be. He advised he is speaking at 67 to 73 decibels of sound; and he does not think it is that loud. He stated Brevard County has done the test and determined the traffic noise around his club was louder than the music being played. He stated Assistant County Attorney Terri Jones sent a copy of information to Commissioner Scarborough’s office, where the special master heard his case; and he disagreed with Mel Scott’s interpretation of the ordinance. He stated as long as the music is an accessory to the business it is allowed; the County says it is not allowed; and Ms. Jones sent a copy of the special master’s decision. He stated it has been a financial burden to him; and he had to sell his business because of it. He stated it is unfair and unconstitutional under the First Amendment to regulate music to no music whatsoever.

Joel Pitts stated he is a musician; when he plays the venues he is entertaining people; and he enjoys what he does very much. He stated to be put under the microscope of the law he does not understand. He stated he plays at a lower decibel level than he does at yacht clubs; and the raucous law is ridiculous. He stated being a musician helps support his family; and he cannot understand what the conflict is. He inquired if the Board sets the decibel levels, why is there one law that gives the option to the Sheriff’s Office to say it is too loud. He stated it gives the Sheriff’s Office the ability to harass entertainers, venues, and set its own standards as to who can or cannot provide entertainment.

Geoff Wilkenson stated his wife and he are the new owners of the Redfish Inn; it is a beautiful venue; and he has found there has been a problem with the claimed noise. He advised they have been working with the police to keep the noise levels down to satisfy the neighbors. He stated the current standards are very subjective; and if the Board accepts the current ordinance there may be something to measure. He advised there are many people who come to the Redfish Inn to hear the music; it is located on the river; and there is plenty of space around it. He requested the Board accept the ordinance. He stated if the police were present at the meeting today they would agree there needs to be something they can work with to determine if the music is too loud.

Bob Lambert stated he is a member of a group called Invisible Ink. He advised he contacted Chairman Pritchard regarding an ordeal he was going through with the City of Cocoa. He stated he is holding a show tomorrow night for Toys for Tots; he has invested a lot of time and money; and he has asked for nothing in return. He stated he is afraid with his first show tomorrow night he may be going against rules and regulations he knew nothing about. He stated he is not out to do any wrong or go against any rulings, but he does ask the Board to accept the proposal to exempt outdoor music. He stated music is the only thing he has left; after his heart attack in 2001 his welding was taken away because of the pacemaker put into his chest; the State took away his CDL drivers license so he cannot drive anymore; and the only thing he has left is the music. He stated the money really means nothing to him, but the music is all he has left. He stated if the Board accepts the new standards, it will not only help the venues but the musicians also. He requested the Board give the musicians a little leeway, and accept the ordinance.

Doris McMahon stated she keeps hearing about the traffic noise outside; when it is the rush hour it is noisy; but it dies down and things get quiet. She stated her property is quiet and peaceful except when there is loud noise and music. She advised she has no objection to music, but a residential area is not the place for it. She stated they have been trying for months to get relief from the loud music; people living on both sides of the highway were complaining; and some could hear the music a half mile away. She noted they have amplified music, loud speakers, shouting, and laughing. She stated the Redfish Inn advertises different groups and motorcycles are welcome; and they also have mud wrestling. She stated the police finally began to enforce the ordinance; Mr. Watzke was fined and arrested but it still did not stop; the District Attorney brought him up on charges and he pled guilty; and she understands Mr. Watzke has sold the business; however, what is going to stop the new owner from playing outside music. She stated they are playing now with a microphone; some of the neighbors sleep with their windows open; this is one little spot in a residential area; and inquired why could they not find somewhere else to play the music. She stated it began as a small restaurant on a small lot; they got a liquor license because they said people liked to have drinks with their dinner; and it then exacerbated to outside music. She stated it is not an accessory to a restaurant, it is an outside bar. She noted most of the profits are probably from liquor sales. She inquired how many people eat at 9:00 p.m. to 11:00 p.m. at night. She stated the restaurant moved into their neighborhood two or three years ago; and she built her house 22 years ago. She stated trying to regulate sound will not work in her case; and they live on the river and sound carries much more along there. She stated they depend on the present Ordinance for protection; and there should be some kind of regulation for people like her.

Helen Collura stated she lives at the first property north of the bar in question. She stated there was a threat made by a bar owner that if the neighbors did not want to hear the music he would send the Warlocks to take care of it. She stated it does not scare her, but her neighbor Mrs. McMahon is 82 years old and lives alone. She stated the speakers are amplified and pointed at
her house. She stated Chairman Pritchard took Mr. Watzke’s side from the beginning; and never asked the neighbors how they felt about it. She stated she goes to bed at 9:00 p.m. and gets up at 5:00 a.m. She stated the music is so loud there is no way to sleep, watch television, read, or do anything; and to listen to the jungle music is driving her crazy. She stated the decibel system does not work; they still hear the music; and if their decibel system is under the law it is not working. She stated the owner says they have to have the music so they can sell food; Corkey Bell’s does not have music to sell food; and they have people lined up in the parking lot. She stated she understands permits are given to play music outside to the Holiday Inn, Pineda Inn, and Applebee’s; they are not in residential neighborhoods; and she lives about 400 feet from the Redfish Inn. She stated there is a State law that says if a person can hear the music and it is disturbing to the neighbors it is illegal; and no one is enforcing the law. She stated she would like the Board to do something about it. She advised they had a horrible summer because it was supposed to be taken care of.

David Songer stated focus should be on something that can be measured; and there will always be different emotions in every issue. He stated the State will continue to increase density as far as population is concerned. He stated it is America; and the laws cannot be based on subjectivity. He stated he was part of the citizens advisory committee; it was put together and

represented well; and they decided to come to a consensus. He stated the folks who signed up to be part of the advisory committee were not committed to consensus; but they did come to a conclusion based on vote; and there has been a lot of work done. He noted some of the folks spoke about the present law; and when a person says loud and raucous it is subjective. He stated many people put up with noises that are offensive; but that does not mean those folks need to be shut down and denied their rights under the Constitution of the United States of America. He advised he is in support of the proposal; but would like to see the loud and raucous provision eliminated. He stated in some of the paperwork he received that law enforcement had been contacted, but there was no written response; and tax dollars cannot be misappropriated in using the resource of the Sheriff’s Department. He stated he is a member of the Ozone Band; they do not do drugs and do not break the law; and they do not like being put in a position where it appears they are causing trouble. He stated he contributes to the community, is a voter and taxpayer, and loves the area. He stated it is up to the Board to decide if the citizens advisory committee was a worthwhile effort.

David Dunkle stated he is employed as a human factors engineer; and that is a job to design equipment and work locations to best suit people’s needs. He stated he looks into ergonomics and human safety issues; and one of the many factors he addresses are acoustical noise levels. He stated he wanted to offer a short explanation for decibel levels, dB(A) readings, and typical sound levels for different environments. He stated he has studied acoustical sound measurement in graduate and undergraduate classes; he has researched noise levels for various government facilities; and he has taken noise level measurements for a number of
locations to verify compliance. He stated he has worked with military or Air Force standards; but he has also researched levels for the Department of Transportation and OSHA regulations. He stated he wants to offer his analysis for the 65 dB(A) level of noise for outdoor music. He advised he believes that is a safe and suitable level for evening hours; and it is a practical level to enforce. He stated a dB(A) measurement is a measurement of noise level and units of decibel; and they have an adjustment for perception of the sound. He stated it is the accepted standard for typically representing sound levels if suitability is being analyzed. He stated roads are built to allow levels up to 80 dB(A) off of the road; and that is pretty loud. He stated it requires a person to almost yell to another person standing next to them at 80 decibels. He stated levels over 85 decibels are usually posted as hazardous noise areas and would require some sort of protection; but as it is dropped down 10 decibels it represents a noise level that allows for occasional telephone use and conversations for people about five feet away. He stated 65 dB(A) is a level allowing frequent telephone use, conversations between people, and a kind of environment a person would expect in an outdoor dining area. He stated if it is dropped to 55 dB(A), it is recommended for laboratories; and 45 dB(A) is recommended for libraries. He advised 65 dB(A) seems reasonable for outdoor volume levels because it is close to the level generated by people gathering in a group. He advised the noise level will only be as loud as the people talking, and that level of noise is generally acceptable for outdoor eating areas. He stated if a restaurant has a level of 65 dB(A) on their property, it could very easily present only 55 dB(A) just 15 feet off of the property; and it would be about as noisy as a library at 45 dB(A) 20 yards from the property. He stated in most cases it is quieter than the noise of the surrounding area. He stated noise levels are not hard to measure; a person can get a sound pressure level meter; and it can be purchased at Radio Shack or online at under $100.

He stated a simple rule of thumb that could be used for a quick estimate is if the patrons of the outdoor music venue are shouting to talk to each other, then the music is probably over 65 dB(A); and that is what is being requested. He stated it gives the patrons, owners, and the neighbors an easy way to keep the noise under control. He stated he believes the proposed noise ordinance is safe, reasonable, enforceable, and removes a lot of the subjectivity for the noise complaints.

Assistant County Attorney Terri Jones stated the ordinance would not, as stated in the Agenda Report, eliminate the loud and raucous. She advised the Board would have to amend Chapter 46 to do that; and it could be done today if it wants to pass it as a legislative intent to do an ordinance change for Chapter 46.

Jeannette Elliott stated she lives 500 feet from the Redfish Inn; and she has had her property since 1962 right on the river. She advised when on the water a person can talk to someone on a boat softly and it can be heard on shore. She stated the river in certain situations amplifies the noise; and she is sure some of the musicians are not aware of that fact. She stated after hearing all of the comments and how the decibels work it sounds like the only answer to the problem is have the right volume so everyone is happy. She stated a person has to have music, but she does not have to have it at 11:00 p.m. blasting in the windows. She stated the Board is working in the right direction to get the problem solved; and a lot of people’s happiness depends on it. She stated if people want to play loud music, maybe they can find another place.

Laura Ward stated her neighborhood has had a long history of experience with outdoor music and how disturbing it was to all the residents around it. She stated she hopes the Board will deny the ordinance; she does not agree with the last speaker that it is moving in the right direction; and she thinks it will be impossible to enforce the ordinance. She stated she does not know what the plan would be; and inquired if Brevard County is going to hire an army of Code Enforcement officers to be armed with decibel measuring devices in the evening hours to measure. She stated the complaints come in during the evenings because that is when the people play the music. She stated in her instance the Sheriff’s Department was never available to really get involved with the enforcement; that was bad enough trying to enforce; and this ordinance would be worse. She stated she had a chance to speak with Assistant County Attorney Terri Jones, and she understands it would be easier to legally defend the status quo situation than it would be to defend against the proposed ordinance. She stated the ordinance would open it up to hundreds of neighborhoods that have similar establishments that would be engaging having outdoor entertainment. She noted people who move in residential neighborhoods like hers have relied on the restrictions in place; and now those restrictions will be changed. She stated in Florida everyone enjoys eating outdoors; and the restaurants should be free to have people eating and dining outside. She stated it is not necessary to have music dining outside. She stated she does not understand why those talented musicians cannot express themselves inside a building and why the restaurants cannot use entertainment inside a building where the sound is controlled to provide the entertainment for customers. She stated music is different than ambient sound; all the talk about decibels and measurements sound fancy and scientific; but music is distracting. She stated the Board should put itself in the place of the residents who live around the establishments. She stated the ordinance is a can of worms that will cost the County a fortune in enforcement. She stated what the County has now is better than changing it to something like the ordinance, and requested the Board deny the ordinance.

Gary Coppola stated he owns Sebastian Beach Inn in Melbourne Beach; he has owned it since 1990; and has had outside music there since that time. He stated he is happy he does not see any of his neighbors present, so hopefully there is a level of peace. He stated the Board should not hold businesses in the unincorporated area to a higher standard than the competition is held in the incorporated areas. He noted to do that would be unfair treatment; and it would give his competition an advantage over his business. He stated although there are not a lot of people here, thousands of people vote by going to clubs and restaurants with music. He stated there is a large silent constituency who enjoy music; it has always been a part of Florida; and it is a State where people like to enjoy themselves. He advised he has a decibel meter and has owned it since he opened his business in 1990. He stated he took readings at the meeting; while he is speaking the level is 75 decibels; and he went by the road and the decibels
were anywhere between 85 to 90 and up. He stated out on his deck the decibels were 75 to 90; the trash pickup truck was over 100 decibels; and motorcycles are over 100 decibels. He stated the decibel readings in the Commission Room are from 62 to 76 decibels. He stated if people are going to be arrested for over 65 decibels, the Board will have to arrest itself. He stated 65 decibels is too low; it should not be any lower than the noise of the traffic driving by the businesses; and some people may think the traffic is more annoying than music. He advised some people think music is comforting. He stated he thinks an independent study needs to be done on the economic costs of the businesses that would be affected by the ordinance. He stated he hopes the Board will hold off on its decision until after such a study, because there is going to be some severe economic repercussions to business owners, a lot of lawsuits, and a lot of expense. He stated taking away the music is a taking; and if people move next to a music venue they should expect it.

Commissioner Scarborough stated he believes some of the irony began with the prohibition of smoking in restaurants so then people should have a right to have more outdoor dining; and following that it was music following the dining. He stated the one problem he has is as the Board gets into this it will set a new standard. He stated to make it work a human being would have to go out to check it certain times. He stated the Board would be ill advised to move forward with it until it understands the cost implication of how many new establishments would be created that would utilize it and the amount of Code Enforcement required; and the County would probably need a whole separate Code Enforcement because it would be unfair to ask someone who worked a 40-hour week and then would also work the evenings. He stated to have the decibels will be only the first call; if the Board enacts the decibels it will have to enforce this; and it is enforced with personnel. He stated there is a difference to know that every evening there would be a venue next door playing music than just having one neighbor have a party on Saturday; he cannot support the ordinance in its current form; to go to the tourist designations may be one way to go; but not have it in the residential neighborhoods. He advised there is a great deal of respect for religion in this country, and the Board has just enacted an institutional zoning, which restricts larger churches in certain zoning classifications because they become disruptive to the neighborhood. He stated the Board does have some zoning control of compatibility; and the ordinance is inadequate to answer the response. He advised the Board spent a lot of time working on the ordinance, but unless a new Code Enforcement is capable of going out and enforcing the ordinance, then he cannot support it.

Chairman Pritchard stated the Board needs to set a measurable standard, which it does not have; and it is a subjective way of determining whether something is loud. He advised he has been to the Redfish Inn; he went there not in support but to find out; and on one occasion he was in Ms. Collura’s driveway and heard nothing. He stated five minutes later the Sheriff came and closed the Redfish Inn down; and he heard nothing. He stated then he went to the driveway south of that and still could not hear anything. He stated the question what is loud becomes subjective by the person who is listening. He advised the police have been used to control a situation, and how they could make a determination of loud and raucous based on something he could not hear is beyond him. He stated the Sheriff’s Office decided to enforce every time it was called; they dismissed the call where he was present; and they did not want to have a County Commissioner say he could not hear a thing. He stated the police department cannot be used to enforce something that the Board has not made a determination of what is loud and what is not loud. He stated if the Board does not accept recommendations based on the committee or modify the recommendation, he does not understand how it will ever deal with loud and raucous, let alone setting a standard for outdoor music. He stated the Board needs to determine the level of what noise is and whether it is acceptable.

Commissioner Colon advised the issue is complex. She stated there are people who have businesses located in a tourist area; and she enjoys outdoor dining and music. She stated her problem is in a residential area. She stated the Board needs to determine how many businesses are within residential areas; and identify which ones those are. She stated the Board must be careful what it approves; she likes looking at the decibels; but to have a business having music until 11:00 p.m. by a residential area is not acceptable. She stated in a tourist area it is fine to have music until 11:00 p.m. She noted it is difficult for law enforcement to handle situations regarding loud music; and she does not want to put the burden on them. She stated she has to go to sleep early during the week because she has to wake up early. She stated the Code Enforcement issue is another dilemma; and people do not work on Friday and Saturday nights to enforce a noise ordinance. She advised it is not so cut and dry; limits need to be set; but anything in a residential area the Board needs to be more protective.

Chairman Pritchard stated if one cannot hear the music they cannot hear it; and inquired how does one measure what they cannot hear regardless of the neighborhood. Commissioner Colon stated she has been to places where there are bands playing, and if they realize the police are coming the volume goes down. She stated what Chairman Pritchard experienced is one experience; and it may not be the same in other areas. She inquired if 10:00 p.m. in a residential area is late enough. Chairman Pritchard responded he could not hear the music; and it does not matter what time it is if one cannot hear the music from adjacent properties. He stated his wife was with him and she could not hear the music either; when the music is contained to the establishment or the property lines and it does not travel beyond that, or it is at such a minimal level that it is really ear strain, then a person has to question where is the offense. He stated a measurement is needed; and the Board cannot allow the Sheriff to be used as a tool. He stated there are certain uses in neighborhoods, bars, and restaurants that do have music venues; as the population grows there are residential neighborhoods that come in; and then the Board will have to say no to any outdoor music. He stated a measurement is needed based on the standards; and the issue can be managed.

Commissioner Scarborough stated the Board is saying it is okay to have outdoor music incidental to outdoor restaurant seating; the outdoor seating was initiated because of the smoking; and now the music can be a problem if it is too loud. He inquired does the Board say there can be no music; and noted the Board has said outdoor music may not be appropriate. He stated Chairman Pritchard says if there is a standard everything is copacetic; one can hear the crickets no calls come in; when he drives home tonight there will be people exceeding the speed limit; and if there is not someone to enforce it there will be no requirements at all. He stated what the Board is doing is authorizing an increase that is following a smoking issue, that is following a seating issue. He stated the comment was made who eats at 11:00 p.m.; and most restaurants are beginning to close down at that time, so there is a different type of activity. He stated the assumption is leading further to outdoor music is okay, and inquired is it incidental to restaurant seating if the restaurant evolves into something else and does the County go out and check the billings to find out how much alcohol is sold and how much dinner is sold, because once that is broken it is no longer an outdoor restaurant seating, it is outdoor bar seating based upon a person’s receipts. He advised just like when he drives home tonight there will be people exceeding the speed limit; there will be people who will exceed the decibel limit; and that will require staff time. He stated every Commissioner will get calls on the weekends asking where is the Code Enforcement.

Commissioner Colon inquired how can the ordinance being discussed be enforced. Code Enforcement Director Bobby Bowen responded the noise has been discussed, but what has not been discussed is vibration. He stated on the number of calls he has received over the years where he responded as a patrol officer, when he got there he could not hear the noise but could feel the vibrations from the bass. He stated if one pulls up to a traffic light and there is someone with a boom box, a person cannot hear the music but the knobs on the dashboard are vibrating; and that is an irritant. He advised as a Code o0fficer standing inside a person’s home hearing for himself a noise, sound, or vibration, it could be a violation based on the duration and level of the sound regardless of the dB(A). He stated the problem Code Enforcement has is bass is not a sound that one can measure with a sound meter, it is a vibration. He advised breaking the sound barrier is 60 dB(A) on the ground; but he does not want to hear it continuously. He noted it is not just sound, it is bass associated with music. He stated the cost of a more sophisticated instrument to measure the vibration is rather expensive to purchase and maintain; and it requires ongoing training, maintenance, and calibration on operating any instrument that could be used in a court of law. He stated training certificates, on-hand experience, and a lot of testimony would be needed to certify an officer as a court expert; the officer would be subjected to cross examination on his or her experience, training, and knowledge of the instrument that he or she used; and that would take a long time to implement. He stated for a Code officer to get to that point, a lot of cases would be lost in the beginning until the officers have gotten the experience and training needed.

Chairman Pritchard inquired of Ms. Collura if it was music or vibration that she heard or felt. Ms. Collura responded it is both. She stated she tries to sleep at night; and she likes to sleep with her windows open. Chairman Pritchard inquired if it is words and music that she hears or is the house vibrating; with Ms. Collura responding her floor vibrates from the drums. Ms. Collura advised she has no where else to go and it is taking over her property.

Chairman Pritchard inquired if David Dunkle would give the Board his opinion on vibrations and it not being measurable. Mr. Dunkle stated the sound is a vibration and that is what is being measured. He advised sound at 20 beats per second is the limit of good hearing; as a person gets older he or she hears less of that; but it is still a sound and can be picked up by a meter. He noted it is correct that the meters require calibration and training to take a reading. He stated it would be similar to the training for a radar detector. He stated if a sound meter is going to be used, the meter must be in calibration. He advised vibrations can be measured down to a single cycle per second. He stated it is all vibrations of the air; it can be measured with a meter; and it would have to be measured correctly.

Chairman Pritchard stated he is hung up on what is measurement and how to develop a standard; Commissioner Colon is worried about enforcement; and perhaps the County could utilize the Sheriff’s Department as enforcement with a dB(A) meter and provide them with the necessary tools. Mr. Bowen advised Code Enforcement does have a dB(A) meter and his officers will go out and have gone out when requested to do so. He stated he can stand with a meter and take the reading; vibrations can be measured, but it will require more sophisticated and expensive instruments to do that; if he gets a call at home on a Friday night, he may have a difficult time finding someone to respond; but if he knows in advance, someone from his office will be there.

Chairman Pritchard stated there is a loud and raucous provision, but he does not know what that means. He inquired how is a person going to determine what the level is that makes it loud and raucous. Mr. Bowen responded it is a reasonable person’s standard. Chairman Pritchard stated when he went by the Redfish Inn and heard nothing, others heard nothing; and a Sheriff came out and shut it down because it was loud and raucous.

Assistant County Manager Peggy Busacca states in most of the areas of Brevard County where there are people on call, additional money is paid for that; and inquired if that is built in to the Code Enforcement budget. Mr. Bowen responded he has some on-call in the budget, but it is very specific. Ms. Busacca inquired if there would be financial impact to the budget should the Board choose to have a staff member on call on Friday and Saturday nights; with Mr. Bowen responding yes. Chairman Pritchard inquired will the Sheriff’s Department cover the complaints; and noted it does not have any measurement. Mr. Bowen stated the question is how effective will the administrative process versus the criminal process work. He stated the administrative process is an inexpensive process to get people to come into voluntary compliance; if it works it is fine; but if it does not work a person will rely on the Sheriff’s Office to assist them. Chairman Pritchard stated there needs to be a standard; the speed limit is 55 mph; and if a person goes above it someone enforces it.

Commissioner Scarborough stated he and Chairman Pritchard are talking two different issues. He stated he sees it as a liberalization, saying it is okay to have outdoor music; and that is where it opens up his argument. He advised it is opening up a whole new level of entertainment adjacent to restaurants. He stated if Chairman Pritchard wants to go back to what is defined as loud and raucous and define it with a certain level of decibels at different times for different places and different zoning, he will go there as it makes sense. He stated it is giving a green light to the utilization of outdoor music, and it will require additional policing. He stated if the Board wants to talk about loud and raucous based upon dB(A)’s, that makes sense and is a different issue. Chairman Pritchard stated he has gone into Italian restaurants and there is music being played outside; and people are sitting outside waiting to get seated and there is music being played. Commissioner Scarborough stated it is probably located in a commercial area. Chairman Pritchard stated it is loud enough to hear it but not so loud a person cannot talk over it; and he assumes it is in the 60 dB(A) range. He stated when he walks into the parking lot, he cannot hear the music. Commissioner Scarborough advised he does not disagree with Chairman Pritchard regarding standards, but he has a problem saying the Board will follow the smoking, to the outdoor seating, to the outdoor music; it will be in certain neighborhoods that are not Merritt Island, but residential neighborhoods; and there will be a great many that will utilize it because once it passes it will not just be the Redfish Inn. He stated the Board will find it is much more than just defining what loud and raucous is; it is not a restaurant at midnight; and if he was representing one of the people who are against the outdoor music, he would challenge the capacity of the restaurant that could call itself a restaurant and challenge its ability to have the music. He inquired if the Board wants outdoor bar seating with music in residential areas.

Chairman Pritchard stated the reason for the restaurant going to midnight or 11:00 p.m. is people would order at 9:00 p.m. and sit there for an hour and have their meal. He stated it seems like the line is being drawn as to whether or not there should be outdoor music, let alone whether it is regulated or can be heard in properties adjacent. Commissioner Scarborough stated with the opening of outdoor music at every restaurant establishment, they are in many different areas; there will be a conflict because the dB(A) will be exceeded; and then the Board will find it will be back discussing it and it will be uglier than can be imagined.

Commissioner Voltz inquired if Commissioner Scarborough is suggesting the Board not accept the request, but set standards for loud and raucous. Commissioner Scarborough responded the Board needs to deal with loud and raucous in another manner because it could be anything. He stated if the Board wants to look in the tourist zones it would be fine to have outdoor music since it would be appropriate. He stated he does not know another way to walk out of it, except going to zoning specific for outdoor music.

Commissioner Colon stated it would be a start to allow a tourist area outdoor music. She stated it will still open Pandora’s box; there will be some who will still go over the 65 dB(A); and all of a sudden something the Board is trying to do in good faith comes back and smacks it. Commissioner Voltz stated when she served in District 5 there was a problem with the Holiday Inn on the beach and the condominium next door to it; the music was very loud; and it was a problem even in the tourist area.

Chairman Pritchard stated the Sheriff’s Department goes out on a call and makes the determination if the music is loud and raucous; but there is no standard to base it upon. He stated if there is a standard that takes the subjective ability away, then legitimacy for enforcement is there. He stated a reasonable person becomes unreasonable after a person has gone someplace four or five times, and are now tired of dealing with it. He advised that is when the Sheriff’s Department closes them down.

Commissioner Colon inquired if what the Redfish Inn is doing is now illegal. Assistant County Attorney Terri Jones responded it is a violation of BU-1 and BU-2 to have outside entertainment uses of outside music without having a special events permit. She stated Mr. Watzke did appeal the special master finding; and the County did cross appeal to be consistent with the zoning interpretation. Chairman Pritchard stated the Ordinance goes back to 1958. Ms. Jones stated it was amended in the 1970’s or 1980’s. Commissioner Colon stated when the Board makes decisions it is not interested in one or two businesses; Brevard County is 72 miles long; it goes from Micco to Mims; and the folks in the audience are not the only ones the discussion
pertains to. She stated she has to look at the entire County and so do her fellow Commissioners; when the decisions are made, the Board has to figure how it will impact every district; and it can start out with the tourist areas.

Commissioner Voltz stated the music was playing in her office at 65 dB(A)’s and she could not concentrate in what a person was saying because the music was irritable enough to keep her from knowing what he was saying. She stated everyone is different.

Chairman Pritchard stated the special master disagreed with Mel Scott’s interpretation of BU-1 zoning and said that outdoor music is allowed if it is strictly an accessory. Ms. Jones stated the special master set out parameters if it is accessory, meaning no concert or advertisement. She advised the County did cross appeal that. She stated if the Board decides to pass the ordinance the cross appeal will be dropped based on that. She stated loud and raucous has been amended several times in 1993, 1994, and 1995; she discussed it with Michelle Jackson who enforces it for the State Attorney’s Office; and she was part of an amendment passed in the 1990’s.

Commissioner Scarborough stated he thinks there is a desire to look at further zoning classifications. He stated it would be wise to take the dB(A) analysis as to the loud and raucous and it will entail additional staff information. He stated he will not vote in support of the ordinance, but would like to move forward with the consensus of the Board to get some reports.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to direct staff to report back to the Board with additional information in memorandum form concerning tourist commercial zoning classification for outdoor music and the dB(A) analysis for “loud and raucous.” Motion carried and ordered unanimously.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to deny adopting ordinance regulating outdoor music accessory to outdoor restaurant seating. Motion carried and ordered; Commissioner Pritchard voted nay.

Commissioner Colon stated she wants to find out how expensive it is to get a dB(A) meter as compared to the vibration meter. Mr. Bowen responded the regular dB(A) meter runs approximately $3,000.

Mr. Coppola stated his dB(A) meter was $45 years ago. He stated to take a reading of the music level of the Sebastian Beach Inn, the police waited until all of the cars stopped driving by because every car that went by blasted the needle off. He stated cars, trucks, and buses are driving by people’s homes all of the time causing more noise than the music may be causing. He stated if the Board outlaws one segment of business or people’s rights, it has to be equitable; he has a place bought when it was tourist use, which allowed him the same thing as business use; and the Board took that away from him and zoned him one house. He stated he wishes the Board were more fair.

Mr. Bowen stated his Department has a regular dB(A) meter, but when the Code was amended it required him to get the meter that matches the Code; and he has to use the results of the investigation in a court of law.

Chairman Pritchard inquired why the Code is not amended to get a less expensive meter. Ms. Jones responded she like radar guns, they have to be calibrated; there is a preponderance of evidence in the Code Enforcement arena, so they have to be proven; and the $45 meter would not be able to withstand cross-examination in her opinion. She advised it has to be calibrated beyond a reasonable doubt, which is the standard as far as any criminal violation.

Commissioner Voltz stated she is not saying people cannot have music outdoors; but if it has not been a problem in the neighborhood it should be okay. Ms. Jones stated under the zoning there is no outdoor music unless a person has a special events permit, which exempts a person from the Noise Ordinance. Commissioner Voltz inquired what if someone has a place that has outdoor music, and they have never had a complaint. Ms. Jones responded Code Enforcement is reactive and proactive. Commissioner Voltz stated it is only the complaints that cause the problems.

Chairman Pritchard inquired if Ms. Jones will continue the cross-appeal. Ms. Jones responded she met Mr. Watzke’s attorney and Judge Moxley last Tueday; Judge Moxley wanted to know what the Board was going to do today; she will report back to him; and he will decide if the cross-appeal will go forward since the ordinance was defeated. Ms. Jones stated the Board may want to consult with the State Attorney if it is going to change the loud and raucous; the State Attorney is the ones who actually prosecutes loud and raucous. Commissioner Scarborough stated with his previous motion it was anticipated that Ms. Jones get that comment as part of it.

ORDINANCE, RE: AMENDING ZONING USE TITLES

Commissioner Scarborough stated he spoke with Planner George Ritchie; Mr. Ritchie indicated there was no change to the ordinance; no one would be affected with their rights; and it is just a piece of reading. Mr. Ritchie responded that is correct.

Motion by Commissioner Voltz, seconded by Chairman Pritchard, to forward the ordinance amending Zoning Use Titles to the second public hearing scheduled for December 14, 2004. Motion carried and ordered unanimously.

DISCUSSION, RE: ZONING CONTROVERSIAL ISSUES

Commissioner Colon stated one of the issues that was discussed was that at the Zoning meetings staff is able to find out if there is a controversial issue; and what was happening is it was going directly before the Board without having mediation. She inquired if the Planning and Zoning Board was notified that it will be the process from now on.

Assistant County Manager Peggy Busacca responded the Board has not taken formal action to move forward to do it; staff can outline the various options and bring those back; and there is time between now and the next Zoning meeting in February to do it. She advised staff will bring it back and give the Board the opportunity to consider if it wants to do some tabling if there is a controversial item to allow neighborhood discussion. She stated the City of Titusville has a requirement for meeting with the neighborhood; and staff will bring all of that back.

DISCUSSION, RE: OUT-OF-DATE ZONING MAPS

Chairman Pritchard stated concerning the property on North Merritt Island, the Zoning maps that were shown to the Commission were ten years old and different than what was found in Titusville.

Zoning Official Rick Enos advised he heard that discussion and none of it made sense to him. He stated the County’s zoning maps are not ten years old; the zoning maps provided to the Board are up-to-date; and they are less than a month old.

Chairman Pritchard stated he looked at the map provided to the applicant and it was an old date. Mr. Enos stated what probably happened, if it was a paper map, the base information on the current Mylars is old data. He stated not the zoning on it, but the parcels are old data because the Property Appraiser is no longer maintaining the old way of doing mapping. He advised the Property Appraiser has switched to an entirely GIS based system. He stated the County is in the transition, but are behind the Appraiser; it is from a Mylar-based map to a GIS based map. He stated the County does keep the Mylar-based map; the data may have said 1990; but that would refer to the parcel information. He stated it may not have shown new parcels that have been split out since 1990, but the zoning is an overlay on top of that and has been updated continuously; and he runs into the problem a lot. Chairman Pritchard advised he wants to be sure everything the Board gets is the most recent and most accurate data.

By motion and vote, the meeting adjourned at 8:30 p.m.

ATTEST: _________________________________
RON PRITCHARD, D.P.A., CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

___________________
SCOTT ELLIS, CLERK

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