MINUTES OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS

BREVARD COUNTY, FLORIDA

 

 

 

May 7, 2009

 

 

 

The Board of County Commissioners of Brevard County, Florida, met in regular session on April 7, 2009 at 5:02 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida.  Present were:  Chairman Chuck Nelson, Commissioners Robin Fisher, Trudie Infantini, Mary Bolin, and Andy Anderson, Assistant County Manager Mel Scott, and Assistant County Attorney Morris Richardson.

 

 

 

The Board of County Commissioners acts as a Quasi Judicial body when it hears requests for rezonings and Conditional Use Permits.  Applicants must provide competent substantial evidence establishing facts, or expert witness testimony showing that the request meets the Zoning Code and the Comprehensive Plan criteria.  Opponents must also testify as to facts, or provide expert testimony; whether they like, or dislike, a request is not competent evidence.  The Board must then decide whether the evidence demonstrates consistency and compatibility with the Comprehensive Plan and the existing rules in the Zoning Ordinance, property adjacent to the property to be rezoned, and the actual development of the surrounding area.  The Board cannot consider speculation, non-expert opinion testimony, or poll the audience by asking those in favor or opposed to stand up or raise their hands.  If a Commissioner has had communications regarding a rezoning or Conditional Use Permit request before the Board, the Commissioner must disclose the subject of the communication and the identity of the person, group, or entity, with whom the communication took place before the Board takes action on the request.  Likewise, if a Commissioner has made a site visit, inspection, or investigation, the Commissioner must disclose that fact before the Board takes action on the request.  Each applicant is allowed a total of 15 minutes to present their request unless the time is extended by a majority vote of the Board.  The applicant may reserve any portion of the 15 minutes for rebuttal.  Other speakers are allowed five minutes to speak.  Speakers may not pass their time to someone else in order to give that person more time to speak. 

 

 

The Invocation was given by David Dingley, District 4 Commission Aide.

 

Commissioner Andy Anderson let the assembly in the Pledge of Allegiance.

 

 

 

Chairman Nelson called for the public hearing to consider items to be tabled, as follows:

 

Zoning Official Rick Enos stated Item V.B10, Merritt Island Development, LLC is tabled to the May 28, 2009 Board Meeting.

 

Motion by Commissioner Infantini, seconded by Commissioner Bolin, to table Item V.B. 10 to the May 28, 2009 Board of County Commissioners meeting.  Motion carried and ordered unanimously. 

 

 

Chairman Nelson called for the public hearing to consider Planning and Zoning recommendations of April 6, 2009; and the North Merritt Island Board of April 16, 2009 as follows:

 

Item V.B.1 (Z0904201) Stanley A. Sylvain, Trustee’s request for a CUP for Alcoholic Beverages for On-Premises Consumption in a BU-1 zoning classification on 0.51 acre, located on the southwest corner of Nevins Court and North Courtenay Parkway, which was recommended for approval by the Planning and Zoning Board.  

 

Commissioner Bolin stated she had a briefing on this item; the person she spoke to was Mr. Perrone; Commissioner Anderson stated he also received a phone call from Mr. Perrone and a fax; Commissioner Infantini noted to make that three; Commissioner Fisher noted to make it four; Chairman Nelson stated he too heard from Mr. Perrone; and he did a site inspection.   

 

Attorney John Evans stated he has a hand-out for the Commissioners; Chairman Nelson stated there was some correspondence which was available to everyone from Mr. Perrone.  Mr. Evans inquired if it was a three page letter; with Chairman Nelson responding yes. 

 

Mr. Evans stated he represents Theresa Emmanuele; she currently operates F’Uglies Inc., which is a local bar on the Merritt Island Causeway; she has operated that bar for eight years and eight months; while that is significant, he has included the first document, a letter from the Code Enforcement Board that she has operated this business with no Code violations whatsoever for this eight-year period; and this is significant in the terms of her compliance with Brevard County Codes.  He stated what she is doing is seeking to purchase this building, which is a little bit less than a mile north of her current business operation; she is not introducing a new business in the area, basically just moving a little bit less than a mile and it is an existing business; today she is requesting a CUP for sale of alcoholic beverages; this matter was approved by the Planning and Zoning Board and also by the Merritt Island Redevelopment Board; and he believes the Redevelopment Board passed this unanimously.  He stated there are pictures in the packet of the structure; it is very attractive, very modern building and will suit her purposes very well; the staff report, which is basically the County expert, indicates there is no issues related to traffic on State Road 3; there are no issues related to volumes of traffic, and no issues related to concurrency for solid waste, water, sewer or anything like that; the application indicates all activities will be indoors, so there will be  

minimal impact on all surrounding properties; also in the packet he included a map of the area; and the property is completely surrounded on three sides by BU-1 zoning, which is
compatible with existing zoning that she has.  He stated there is a gentleman who lives
in the residence behind the property to the east who will says he has no objection to this particular business either; she is either compatible with the surrounding zonings or has consent from neighbors that this is an acceptable use; also pictures show there is a six-foot wall between the property in question and the residential neighborhood; this would act as a block for sound, noise, and light; but the staff report goes on to say that if the Board grants this there are performance requirements that his client has to meet; these performance requirements relate to noise, solid waste, signage, and glare from lighting; so his client, before it is allowed to operate, will have to be sure it is compliance with all Codes; and they have to problem with that as there are no churches or schools within the prohibited distances.  He stated there only appears to be one objector and that is Mr. Perrone; Mr. Perrone’s objection seems to be, and the sole objection, the parking; the application is clear on its face that the premises will have no more than 60 seats, and this meets the Brevard County parking requirements; attached in the package is a map of the building showing the layout of seating and the various pool tables; and it indicates it will have just 60 seats.  He stated Mr. Perrone seems to have great concern that under the Fire Code this property might allow more than 60 seats; but he would submit to the Board that what the Fire Code allows is absolutely irrelevant as long as she is in compliance with that; he thinks the building allows some 200 people theoretically under the Fire Code; and as long as she is under that number, the Board should have to concerns.  He advised what is happening here is that Brevard Zoning Code is obviously much more strict than the Fire Codes; she has to comply with the stricter code, which is the Zoning Code and that is what she will do; and he would submit that the Fire Department is a non-issue.  He noted his other argument seems to be a parking problem there already; this building is vacant, and there is a parking problem there; Mr. Perrone owns the building to the north and the building to the south; it is his tenants that cause that parking problem, and he needs to get them under control; and he should not take this property and discourage lawful uses on it because he has a parking problem.  He stated Ms. Emmanuele intends to use only 23 spaces; and she does not intend to use anybody else’s parking, that is what the Code requires.  He stated the last document in the packet is a letter from Mr. Sylvain and he indicates that he supports the request, because he is selling the building; but he does point out, and this is very important in the zoning, people oppose rezoning for many reasons, often they fear for the safety of the children, and they are concerned about the neighborhood; but sometimes they oppose rezoning because it impacts their property and he might be able to have a use of that property that otherwise could not have.  He stated Mr. Sylvain seems to feel that Mr. Perrone is opposing this because he wants to ultimately acquire this property; if he opposes the zoning, that will assist him in the goal; that is Mr. Sylvain’s opinion, but he is the owner of the property; and there have been several low ball offers on the property that he has objected.  He stated he takes Mr. Perrone at his word, but the Board does need to keep that in mind; and he is a surrounding property owner and if he acquired this property it would certainly be financial advantageously to him to do so.  He advised his client intends to fully comply with the Codes; he remembers now the appellate court has said that it is the Board’s job to listen facts, not speculation, not to worries, just facts; the       

facts are that staff has found this particular application in compliance with the Codes, and the parking, which is within the Codes; and as such, they are legally entitled to have

this specific Conditional Use Permit granted.

 

Chairman Nelson state it is a question related to fire verses zoning; zoning is more stringent than fire; but is it not a circumstance where the number of seats made available was based on parking; and inquired if Ms. Emmanuele could get more seats in there if she wanted to; with Mr. Evans responding yes.  Chairman Nelson stated that is different than saying that Zoning only allows 60 seats; Mr. Evans’ client has only chosen only to have 60 seats and therefore, that determines the number of parking spaces, but there could have been an excess of 60 if chosen to.  Mr. Evans advised no, then she would have not met the parking requirements.  Chairman Nelson stated he would like to clarify there are two different Codes, they are related to different issues but one is not driving to it 60 seats; and inquired if parking was sufficient the building would support more than 60 seats; with Mr. Evans responding yes, it would.

 

Commissioner Bolin inquired if the Fire Marshall said that Ms. Emmanuele could have 200 people in there as far as the space, and she chose just to do 60, where would be the trigger point when she had an event in there and 75 people showed up; stated there is no trigger because it is still underneath the Fire Marshall Code as far as numbers; and it would be a Code violation so the County would have to come out and count people. Mr. Evans advised they count seats, there has to be so many parking spaces for so many seats; and if she has one more seat than that and the Code Official comes in and counts 65 seats, then she is in violation and they can cite her and take it before the Code Enforcement Board.  He stated in Cocoa Beach he has had it happen recently, where a restaurant did add seats unlawfully, Code came in, they fined him, and the restaurant had to take the seats out and pay a $1,000 fine; so it is very easy to cure; the fact that the building might allow 200 people according to the Fire Code is not really relevant; the fact is she has to comply with the Zoning Ordinance; and they only have 23 spaces, therefore, they can only have 60 seats and she agrees with that.

 

Commissioner Infantini inquired how many parking spaces are there a mile away; with Ms. Emmanuele responding legally paved there are approximately eight.  Commissioner Infantini inquired if the current establishment only has eight parking spaces; with Ms. Emmanuele responding they are paved, that is correct.  Commissioner Infantini stated her concern is she believes they are splitting hairs regarding the intent regarding the zoning; the zoning was more invented for seats assuming that it has an eating establishment, but an establishment like this, typically they have a lot of people that are standing; the seating is a technicality, one cannot enforce how many people are standing; if the Board adopted Zoning Rules based on how much standing room there is, then it would yield a different response with the parking; that is where the concern is because parking spaces do not coincide with the occupancy; the general practice of an establishment like this is a lot of people do stand, most people do not sit at bar stool or tables; and they will use those up first, but after those are gone a lot of people are standing around.  She reiterated her concern is it will actually be exceeding the intent behind the Zoning Rules as opposed to the actual wording in the zoning.      

 

Mr. Evans stated intent is what the court says the Board can not get to; she has complied with the law; the law says it has to have no more than three seats for every
parking space; she is meeting that; if the Board does not like the Ordinance, rewrite it
and say there can only be 60 people; but the Code says what the requirements are she has met them and now to go to intent then all zonings are in jeopardy because he can never advise the client what the law is because one never knows what the Board’s intent is; and the courts says the Board has to base it upon the facts, the facts are the parking meets the Zoning Code; and if someone happens to walk there from a surrounding neighborhood and not use a parking space, she should not be punished for that.  

 

Theresa Emmanuele stated she has been a bar owner in Brevard County for ten years plus, she had another bar prior; she has ran a clean and lawful business for ten years; she has a great staff of employees that have worked with her, some more than eight years; she intends to continue this operation as this is her dream to own her property; and she would like to be able to have the notice that she will comply with all necessary Codes.

 

Chairman Nelson stated in terms of the utilization, he sees that she is going to have pool tables and darts; and inquired is there going to be tournaments for either of those; with Ms. Emmanuele responding no.  Chairman Nelson inquired is that what she told Planning and Zoning; with Ms. Emmanuele responding she does not have tournaments, she has leagues; stated there are approximately four dart players on a team; there are three teams that play darts on a Monday night; and there would be two teams that play at home, one team away.  Ms. Emmanuele stated she does not, and has never had, a tournament in this business, and has no intention of having one.  Chairman Nelson inquired if there is karaoke night; with Ms. Emmanuele respond yes, right now, there were four people there last night.    

 

Ralph Perrone stated he would like to address a couple comments that were made, and one is in regards to him wanting to own the building; he did talk to Mr. Sylvain in 2004, and it is no secret that he owns several buildings on Courtney Parkway but has no baring on this whatsoever; and it comes down to parking.  He stated if Ms. Emmanuele had 50 parking spaces or 60 parking spaces he would not be there today talking to the Board; he does not have a problem with what she wants to do other than the parking; there is a parking problem there now; this building has been vacant for over six months; there are occasions where parking will overflow; and in all honesty if the bar goes in and a couple of their patrons overflow to the other side, it is not a concern, it is going to happen.  Mr. Perrone stated Mr. Sylvain had his ERA Showcase there and when Pruitt had their real estate business, harmony was not a concern or problem; although Mr. Pruitt labeled all the parking spaces on his side, Pruitt parking only; he did not want to share parking.  He stated he spoke to Ms. Emmanuele and she is not of that same mindset; she does not have a concern of sharing parking, which is nice to know; everyone already knows how many parking spaces are there as the building is 5,520 square feet; in the original application the applicant requested seats for 150 people, this was crossed through and a note added to the bottom of the zoning information sheet with an asterisk, 60-seat facility per applicant phone conversation on March 16, 2009 at
10:33 a.m.; the original intent was not for this to be a 60-seat bar or 60-person bar, it
was intended initially to be 150-person bar; and that was changed because what they have done is backed into the parking to meet the Code requirements.  He stated there is

a billiards location, and a bar right down the street called Island Breakers; Island Breakers is 10,396 square feet, it has 20 pool tables a large bar, two offices, and storage area; Brevard County has set its occupancy at 396 persons; that is huge; there best night that he is aware of was 452 people; they exceeded what it says, but people come and go; they actually have a doorman there with a clicker; and the parking there is 204 parking spaces and that is a big difference. He stated per Brevard County Code if this building was to be used as medical; they would be required to have 32 parking spaces and Brevard County would not allow doctors to occupy this building because they would need 32 parking spaces based on one parking space per 175 square feet; if this building was going to be retail, such as maybe a liquor store, the required parking spaces would be 28 parking spaces and that is based on Brevard County’s rules of 200 square feet per parking space; and if this building is going to be office, which it was prior, they meet Brevard County requirements for an office building.  He stated they would be required to have 22 parking spaces and they have 23; they have been in compliance all the time; a negative impact that would be caused in this event, no one knows for sure that this bar would go over 60 occupants or 23 cars; in the event that is does, the negative impact to his adjacent properties would be considerable; and it also would create a considerable liability for him, he carries huge umbrellas, which he has to carry.  He advised if someone was to get hurt on either of his two properties for any reason, they trip, his curbing is not right, there is a crack in the asphalt, it does not really matter; he potentially have to defend a lawsuit; that could easily be corrected if the applicant were to list him as additionally insured on her policy; and he just does not need the liability.  He noted if the Board was to approve this applicant, he begs it to limit the application, and he knows it says 60 seats, but if the Board could limit it to 60 patrons or something there about to where Code Enforcement would have something if the parking in this situation got out of control; and there would be some recourse to pull this back in.  Mr. Perrone stated he does not know that parking is going to absolutely become a problem; but he knows what is happening at the bar Chalkies, he knows what is happening at the bar Island Breakers, and they have huge capacities.

 

Chairman Nelson inquired is the Board able to limit to 60 patrons verses 60 seats; with Mr. Enos responding yes, he believes the Board can; stated it is a reasonable standard based upon the consideration that is in front of the Board; and the Board can put any condition that it likes on a Conditional Use Permit as long as the conditions are designed to address an issue.

 

Regina Burmer stated she is a native Brevard resident, born at Wuesthoff Hospital, attended Mila, Edgewood, and Merritt Island High School, and Brevard Community College; she has known Ms. Emmanuele for greater than ten years; it has been Ms. Emmanuele’s desire to own her own property; and to be as successful moving forward as she has been in the past, with F’Uglies on Courtney Parkway, it will be successful establishment number three; and the opportunity for F’Uglies is now and the door is
open for Theresa Emmanuele and she is walking through it.  She stated she has     
observed Ms. Emmanuele in business dealings when others want to cut corners as she
abides to the letter of the law; she has observed her relationship with patrons; her
patrons are her friends and extended family; she is affectionately know as Momma “T”
by her patrons, neighbors, and family; and if someone is hungry she feeds them.  She stated F’Uglies gives back to the community in many ways collectively and regularly participating in walks for cancer, diabetes, and donating to local charities; in this difficult economic times when someone is reaching out in attempting to grow their business and better themselves in the life of many families, it would be a crime to stop this progress; she respectfully requests that each of the Commissioners without hesitation vote yes to this change of use; and its vote of yes will allow this community a fine example of how business is conducted on Merritt Island giving F’Uglies its hard earned wings.

 

Stephanie Thomas stated she moved to Brevard County from Broward County shortly after 911; living here has helped her renew her faith in humanity; she loves this County and would not dream of living anywhere else; when she first met Ms. Emmanuele in 2003 they quickly became friends; Ms. Emmanuele lights up every room she walks into, and it is very rare to find these days someone who actually cares about people; she has seen Ms. Emmanuele pull over on the side of the road and stop to help someone in need; it is very rare to see that these days; and she does not consider anyone a stranger.  She advised in 2004 Ms. Emmanuele approached her to come and work with her; she felt incredibly privileged and that feeling continues to this day; from that day forward she has been Momma “T” and she would not have it any other way; she has provided more support emotionally and financially to her and her children than anyone she has come across her entire life; Grandma “T” is who she is to her kids, and she is a single mother of two; and she has not only been source of her employment, but mother figure, a very good friend, and her mentor.  She stated a yes vote does not just allow her to watch Ms. Emmanuele dreams come true after countless years of hard work, it secures the future for two single mothers, a hard working college student, a young homeowner, two families with two young children under five, an aspiring fire fighter, and the worlds biggest Red Sox’s fan; Ms. Emmanuele cares for all of her friends, they are all friends to her; she does not know anyone is a stranger and these are not co-workers they are family; she has learned so much from her and continues to support this community as long as she lives here; and keeping everyone employed and allowing F’Uglies to move to a better location does nothing but simulate the local economy.

 

Steve Rael stated he lives behind the building where Ms. Emmanuele is going to be moving to; he does not have any problem with a bar going in there; he is happy with it, the lights in the background will help; and vote a yes would be great for her and the community.  Commissioner Nelson inquired where he lives according to the map.  Mr. Rael pointed to the location.

 

Richard Chamberlain stated he would like to clear up some technicalities that have been stated; first is the Zoning Code of parking spaces verses patrons; it was read earlier that the interpretation is only three patrons per parking spot; that is actually interpreted
backwards; it must have one parking spot per three patrons; the second is technicality
between seats and occupancy, there virtually is no difference; the following steps after
approval here are to go for Code Permits, which includes fire occupancy; once
occupancy is reached they cannot choose a lower occupancy; and that occupancy is
given to the State of Florida to receive a hotel and restaurant license, it is denoted in
seats, and will match occupancy.  He stated he has been through this several times before, it is always that case; so the idea that a two hundred plus the bar is only going to have sixty seats, there is a technicality of occupancy verses seats, they will virtually be identical the only difference is usually employees; employees generally do not count towards seating, but they do count towards occupancy; so with those two technicalities he thinks the Board will see that 22 parking spaces with a 5,500 square foot building is nowhere near enough.  He advised Ms. Emmanuele stated there are only eight spaces at her current location; she threw the word paved in there in the front; there are only eight paved spots but there are thirty plus parking spots on dirt parking lot behind the building, which is used for parking; there are more parking spaces at her current location than the building she is moving to.

 

Mr. Evans stated they have no problem putting a cap on the number of people because they do not intend to use it anymore intensely than the number of seats; they would suggest a number such as 65 as the maximum occupancy that would be appropriate; they would be willing to do a Binding Development Plan to that; the reason he suggest’s 65 is that she has employees and other people there above and beyond patrons, and that would allow the 60 seats plus five people to service them; and she has no problem with that.

 

Commissioner Anderson inquired if the Board can force this under the CUP of having Mr. Perrone insured under the insurance in case some of the patrons do park in his lots; and inquired if Ms. Emmanuele would be willing to do that.  Mr. Evans advised to ask Commissioner Fisher, the insurance agent, if that is something that can be done.  Mr. Perrone has that problem, if it is an office, if it is a doctor’s office, his client business does not create that problem; his client has the same problem with him if his patrons come on her property and trip and fall she can get sued; and if it is not an unreasonable expense she would have no problem with it. 

 

Commissioner Fisher stated it could be possible to do; Mr. Perrone does not have a financial interest in the property nor is there a business relationship between the two so it might be a little difficult to add, but it is possible; and maybe if they have a shared parking agreement then is would be easier.  Mr. Evans stated there is a common cross easement for three of the stores; he has not done a title search, but has been told that; and if it is possible and a reasonable cost they would have no problem with that. 

 

Commissioner Bolin inquired how many spots are there for people currently to park at the current location, paved or unpaved; with Ms. Emmanuele responding she does not know if she honestly gave an answer to that because B & H Gun Rack is in there, an insurance company in there, up front she has three bays, which has the three parking spots, the eight parking spots, and the parking she is looking at now has grass in the
back that the Board is saying cannot be used as parking because it is not paved; behind
her business there is a area where people park; but there are only two parking spots with capped areas, the rest is dirt, holes, and water, which is very unsafe.  Mr. Evans
stated to give her an average attendance of the business.  Ms. Emmanuele stated 25 to
50 people are ever in the bar; she is not trying to be Mr. Perrone’s Island Breakers and
not trying to be Chalkies; but she is trying to be F’Ulgies, which she has been for eight and one half years with no problems.  Commissioner Bolin stated she did not want to have the idea that she was running a business with only eight parking spots.  Ms. Emmanuele stated there were 19 people in the bar the other day and there were three cars and one of them was hers.  Commissioner Bolin stated she said she averages about 25 to 50 people.  Mr. Evans inquired is that at a time or at night Ms. Emmanuele stated they have not been real busy at night; and during the daytime she has 25 people, and on Friday 40 people.  Commissioner Bolin inquired if staff was thinking of changing the number to 65, as it does throw off the 23 space requirement; with Mr. Enos responding no, if that includes everyone in the building, including employees, then 65 would work because 23 spaces at one for three would accommodate as many as 69 people including the employees, or anyone who happens to be in the building.

 

Commissioner Fisher stated the building was built with 5,500 square feet with 22 parking spaces; it is going to be a challenge realistically whether it is a bar or office building or whatever it is, but that is not what is before the Board; what is before it is did they meet the Code, which they did; is it responsible on the applicant’s part to make sure they do not violate the Code down-the-road when it comes to the amount of occupants who occupy the building; it would be great if what Mr. Perrone has done over-the-years, he used their parking lot and there has been a shared agreement that somehow they create a shared agreement; so if there is a overflow, they can work that out. 

 

Commissioner Infantini stated if the Board does do a Binding Development Plan she would rather make it 70 people because people do come and go; they walk in and out; and she would hate to see her get tripped up because she had 68 people at one moment.

 

Commissioner Bolin stated staff just said it had to be 69 people or under for 23 parking spaces.  Mr. Enos stated yes, the 69 people is based upon 23 parking spaces times three people. 

 

Chairman Nelson stated the difficulty with this is about compatibility, not about whether Ms. Emmanuele is a nice person; it really comes down to what is the compatibility with the neighborhood; that is where he is struggling; all the CUP’s the Board has approved up to this point have been in shopping centers where the parking was all in the front of the building, not in the back of the building; and the results of that all the impacts are in the front of the facilities and not adjacent to residential.  He stated even though the back of a shopping center maybe next to residential, the impact from the cars and the patrons is in the front; and this is a case where that is different, clearly this is in the back and the fence is five feet back from the facility.  He stated he hopes she is successful; he cannot
say the Board is going to approve it because it believed she was only going to have 20
patrons; the Board has to assume she is going into the facility and that the impact from
fill the facility will manifest itself in the neighborhood; and that is what the Board has to
look it.  He stated he cannot support this location for that reason because he believes there will be a noise impact; there will be a back door exit where people will be going out
to the parking area, which is part of the counted spaces; there will be potential for noise
in that neighborhood, and fortunately at least she has one land owner that is adjacent to it; if he never sells she will be okay, but if he ever does sell then all bets are off; there are four other property owners along the backside that are going to be potentially impacted; again, he does not believe it is compatible given the location; there are better uses; and the business use was a better use in this location.

 

*Chairman Nelson passed the gavel to Vice Chairman Bolin.

 

Motion by Commissioner Nelson, seconded by Commissioner Bolin, deny of the CUP based on incompatibility, noise, parking, hours of operation, and the traffic that would be generated in the vicinity for this use.  Motion does not carry; Commissioner Fisher, Infantini, and Anderson voted nay.

 

Chairman Nelson stated he would like to put a limit on the number on users of the facility, and believes 70 people is too high.  Commissioner Fisher stated whatever the Code is.  Mr. Enos stated anything up to 69 people.

 

Motion by Commissioner Nelson, seconded by Commissioner Anderson, to approve Item V.B.1, with a stipulation limiting the number of users of the facility to up to 69.  Motion carried and ordered unanimously.

 

 

*Vice Chairman Bolin passed the gavel back to Chairman Nelson.

 

Item V.B.2. (Z0904202) – Thomas A. & Susan P. Enlow’s request for a CUP for Alcoholic Beverages for On-Premises Consumption in a BU-2 zoning classification on 0.08 acre, located on the north side of SR 520, east of Palmetto Avenue, which was recommended for approval by the Planning and Zoning Board.

 

Doug Forness stated he is requesting a CUP for a restaurant; it is an existing space that used to be a restaurant that has 60 seats; and it is the same format as a Beef O’ Brady’s.

 

Chairman Nelson stated he did drive by the site and saw the back parking lot; but also noticed it was not necessarily done according to what would be County specifications for a parking lot; if he came in today he would have to put in a base, and the asphalt treatment; and he noticed it has been sealed over what appeared to be a turf area.  Mr. Forness stated actually not, that was asphalt; and he has the owner of the plaza with him.  Chairman Nelson inquired why is this so fuzzy; with the owner of the property, Thomas Enlow responding the asphalt that was there was pretty faded, and it needed to be cleaned; stated it has been cleaned and seal coated, there is asphalt; and what was probably seen was behind the asphalt was dirt that was creating a dust so they put
mulch there to dress it up a little.  Chairman Nelson stated he can tell the difference between mulch and asphalt.  Mr. Enlow stated there is a total of 37 spaces and he has a
current survey showing the required parking.  Chairman Nelson inquired does he believe

it meets parking requirements in terms of base and wearing surface; with Mr. Enlow
responding yes.  Chairman Nelson inquired would he be willing to make this conditional upon inspection; with Mr. Enlow responding sure, he knows there is asphalt there; and
stated it is on the survey.  Mr. Enlow inquired if he could give someone a copy of the
survey showing all the surrounding properties and what is considered asphalt and concrete; with Chairman Nelson responding sure he would like to see it.

 

Ralph Perrone stated Planning and Zoning has approved this upon Mr. Enlow putting an additional 40 parking spaces in the rear of the building; that has not transpired; in the application, staff stated that there was 13 parking spaces on the west end of the building, that is incorrect; his building is on the west end of the building, the parking spaces that are shown in the site plan are actually on the east side of the building, and those parking spaces belong to Dewayne Watson; and they are not a part of this site.  He stated he does not have problem with this CUP if he puts in the parking; the building he owns next door has Taiwan flats in it, and several other patrons is 1,200 square feet; to bring these tenants in they were required to add parking; Dewayne Watson was the owner at that time and purchased the property behind this building; he put in a parking lot, asphalt with lighting, retention, drainage and landscaping; and he believes everybody else should follow the same rules.  He advised the parking that was added to the back of the building is not 40 spaces; maybe he can get 40 spaces out there and maybe the Board should approve this; and he should do what Planning and Zoning had recommended or agreed to.  He stated he spoke to Mr. Enlow and Chairman Nelson; he would be willing to help Mr. Enlow by allowing employees to park in his parking lot behind there; he was informed he is not allowed to do that, he did not realize those parking spaces have already been allocated to Brevard County for the use of his tenants and counted for that use; and cannot double dip and count his parking spaces to be used for what he wants to do there.  He stated he did make an attempt to try to help a little bit; in the past he has had problems with Mr. Enlow’s tenants; he had an electrical contractor operating out of his building; his employees were parking every day in his prime parking spaces in his lot behind Mr. Enlow’s building, and his building; and even bring their company trucks there doing cleaning, he had to get that stopped, again liability issues.

 

Chairman Nelson inquired if Mr. Perrone would remove his objection if the applicant provides that; with Mr. Perrone responding they told Planning and Zoning that they were going to add 40 parking space to the back of the building, that is what they agreed to do; stated he counted them, and he actually counted more than he believes what is stated tonight to his benefit; he believes he counted 15 behind the building, plus what he has in the front of the building; the agreement was that he had 40 parking spacing to the rear of the building; and that is what the applicant told him and Planning and Zoning he would be able to do.  He noted that is why he put it in the letter that was sent to all the County Commissioners saying he would remove his objection if Mr. Enlow did what he stated he would do, which he was working with an engineer to provide 40 additional parking
spaces in the rear of the building; but he also thinks he should be required to add
lighting, like he did to his building, and landscaping; he should meet the same requirements, not add paving, seal coat over it, strip it, and then put some mulch in
there; and it is a valid point, if the Code Enforcement can get out there, it may not meet inspection.

 

Chairman Nelson stated he wanted to get an answer on the number of parking spaces and specifically what was said by Planning and Zoning as based on their approval.  He inquired if Mr. Enos has the information with him; with Mr. Enos responding he did not believe they specified a number in the Planning and Zoning Board’s motion; stated there may have been a presumption that it would be 40 based upon some of the discussion that happened, but there was no specific number given; and the Planning and Zoning Board just said the parking in the rear. 

 

Mr. Perrone stated what they want to do here would be wonderful for the community; it is not a bad thing at all, it would fit very well in there; but again it becomes parking issues; this building has multiple tenants; staff counted the parking spaces for the entire building in the front for that one use; and inquired where does the insurance agent park, State Auto Electric employees park if they return after they rebuild their burnt building, and where do the other tenants park.  He stated there seems to be possible a flaw in the Parking Code; and inquired if counting all of these parking spaces and allocating them to one use, where does everyone else park behind his building.  Chairman Nelson stated there is a problem in dealing with the parking issue; and he does not know if the Board can fix it tonight; he inquired when the next Planning and Zoning meeting; with Mr. Enos responding the May 28, 2009.  Chairman Nelson stated can the Board get a clarification of what their intent was and bring it back to the Board on May 28, 2009.  Mr. Enos stated the Board could motion be to send it back to the Planning and Zoning Board on Monday.   Chairman Nelson stated it is a critical issue about what its intent was; clearly it was willing to accept some level of parking, there may be some clarification that could be given to the Board on the number of spaces; and also in that period of time would it be possible to have the parking lot looked at, in terms of its compliance with Code so that the Board can have all the information.

 

Mr. Forness stated there was never an agreement for 40 spots in the back of that plaza. Chairman Nelson stated that may be, that is why the Board is going to send it back to the Planning and Zoning Board its not months, it will be back to the Board on May 28, 2009.  Mr. Forness stated Lydia Evans in Planning and Zoning told them 31 spaces; when looking at the pictures Mr. Perrone has never even lined a space; he has four available spaces next to State All Electric, which is gone; he does have spaces on the side of the building available that have not been lined; the Board can see in the back of the property the pictures, they have been lined, they are legitimate; and the asphalt was there prior to that, otherwise they would not have top coated it.  Chairman Nelson stated it helps the Board clarify the issue; right now the Board is into the he said she said and it is very easy to straighten out for the Board in a reasonable period of time when considering how long is takes the Board to get through something; and the Board can get this clarified and bring it back on May 28, 2009. 

Mr. Forness stated even if he does pave the rear parking lot he does not have the money Mr. Perrone always represents he has; the reason he had to put lighting back
there is because there is not a structure or a building; and to his knowledge Mr.
Perrone’s parking was never permitted.  Chairman Nelson stated that is not relevant to the question.  Mr. Forness stated Mr. Perrone wants to stop everyone else from doing
stuff, but wants to tell everybody how they should do their business; and he needs to make sure his business is done correctly. 

 

Chairman Nelson stated there are two issues one, is the parking lot to a standard that the County would expect for parking lots; and two, did the Planning and Zoning Board have a number of spaces in mind when they made that approval.  Mr. Forness stated he was told 31 spaces. 

 

Commissioner Fisher inquired if the Planning and Zoning recommendations says approved subject to completion of rear parking within a six-month period; with Mr. Forness responding it was a contingency that Clyde Thodey said; the Planning and Zoning Board was going to approve it unanimously and allow him to move forward; according to Mr. Thodey he claimed that he knew Mr. Enlow, which he does not; and he said that if Planning and Zoning does not put a contingency on it, he will not vote for it.  Commissioner Fisher inquired what did the six months mean; with Mr. Forness responding just to clean it up, and that is what he did; stated to re-top coat it, to make sure they have 31 spaces, which is what Planning and Zoning complied with at the time; even based on the fact that there are other units in the plaza; that was essentially it, so Mr. Enlow did go out; the dirt area they mulched; and they felt like they complied with what they are requesting to release the contingency. 

 

Commissioner Anderson stated in lieu of sending the item completely back the Board could have staff research the minutes and the video to clarify what was stated and what the intent was.  

 

Motion by Commissioner Anderson, seconded by Commissioner Infantini, to approve Item V.B.2, subject to confirmation from staff that the parking lot meets specifications for construction, and for the number of spaces based on the approval of the Planning and Zoning Board.  Motion carried and ordered; Commissioner Bolin voted nay.  

 

 

Mr. Forness stated they were told there are grandfathering issues concerning that plaza; he thinks that was in respect to the parking too; and that was brought up by somebody on the Planning and Zoning Committee.  Chairman Nelson stated it was part of the discussion, but the condition of the parking lot was such that he is not sure it could have been counted.

 

Item V.B.3. (Z0904301) – Richard W. & Diana K. Finch’s request for a CUP for a Private Boat Dock Accessory to an Adjacent Single-Family Residential Lot in an RU-1-13 zonng classification on 0.02 acre, located on the north side of Ross Avenue, west of Seller Street, which was recommended for approval by the Planning and Zoning Board.

 

Richard Finch stated he has a lot on an intercoastal area of that, and has applied for a Conditional Use Permit (CUP). 

 

Commissioner Infantini stated the Board has been approving these like hot cakes; the dock is not tied to his residence by a deed; he has two lots 58 feet that got subdivided
and he bought both lots; he still owns the 58 feet except for it is two separate lots; and inquired is putting up one dock; with Mr. Finch responding with two lots there is one dock in the middle of both lots; stated it has been there for 14 or 15 years; and he is not adding a dock, he is just getting a permit on what he has.  Commissioner Infantini stated at some point he could sell his residence; the reason why this dock would be permitted is because he owns property really close; inquired what if he sells the property and now owns a dock in a neighborhood that he does not live in anymore; stated theoretically, she could rent his dock or buy his dock even though she owns a house in Titusville; so then there is an owner that does not live in the neighborhood yet has a dock there; and personally she can not grant anymore docks in there now that she realizes that dock does not get sold with the house.  She noted it could get sold with the house, but it does not have to; she does not want to be putting in anymore docks unless it is tied to the houses ownership, because that is the whole reason the Board is making it an ancillary use; and she realizing technically, next door, it is in the neighborhood.

 

Motion by Commissioner Infantini, that if the Board Grants a dock permit it be tied to the home’s ownership as soon as it transfers to whoever purchases the house.

 

Mr. Enos stated it is consistent with Code, which basically says the owner has to be within the same neighbor; it is a little stricter than is required, but it would be consistent with what the Code requires; the Code would allow a homeowner with a dock to sell the dock to another homeowner in the same subdivision as long as that person met the Code; it would be a violation to sell it separately to someone outside the neighborhood; and that would end up being a Code Enforcement issue. 

 

Commissioner Infantini inquired is it currently illegal to sell the dock to somebody who does not live the in the neighborhood; with Mr. Enos responding yes.  She inquired if that condition is already in place; with Mr. Enos responding yes.  She stated there would be everybody and their bother having access to the community on the water.  Mr. Enos stated that is one of the concerns when staff wrote the Ordinance; and the Ordinance was written in such a manner that is required that connection between the ownership of the house and ownership of the dock.  Chairman Nelson stated the bad part this should never have happened but it did, so the Board ended up have to deal with it.

 

Motion by Commissioner Infantini, seconded by Commissioner Fisher, to approve Item V.B.3 as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

Item V.B.4 (Z0904401) – East Coast Zoological Society of Florida, Inc.’s request for a CUP for Alcoholic Beverages for On-Premises Consumption in an AU zoning
classification on 56.07 acres, located on the west side of the southern extension of
Murrell Road, south of Wickham Road, which was recommended for approval by the Planning and Zoning Board.

 

Motion by Commissioner Bolin, seconded by Andy Anderson, to approved Item V.B.4 as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

Item V.B.5 (Z0904402) – Health Care Reit, Inc.’s request for a CUP for Alcoholic Beverages for On-Premises Consumption in a PUD zoning classification on 25.7 acres +/-, located on the south side of Wickham Road, west of Stadium Parkway, which was recommended for approval by the Planning and Zoning Board.

 

Motion by Commissioner Bolin, seconded by Commissioner Infantini, to approve Item V.B.5, as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

Item V.B.6 (Z0904403) – Jerry D. & Maria B. Vaxmonsky’s request for a CUP for a Guesthouse in an EU zoning classification on 0.55 acres, located on the west side of South Tropical Trail, south of Pineda Causeway, which was recommended for approval by the Planning and Zoning Board.

 

Commissioner Infantini inquired if he would be able to meet the setback requirements as he will be ever so close to the adjacent property; with Mr. Vaxmonsky responding he does meet the ten foot side and the 25-foot rear setbacks.

 

Motion by Commissioner Bolin, seconded by Commissioner Anderson, to approve Item V.B.6 as recommended by Planning and Zoning Board.  Motion carried and ordered unanimously. 

 

 

Item V.B.7 (Z0904404) – Fred D. Boozer, Jr., Trustee’s request for a change from RU-2-6 to BU-1 on 2.88 acres, located on the east side of Highway 1, south of Viera Boulevard, which was recommended for approval by the Planning and Zoning Board.

 

Motion by Commissioner Bolin, seconded by Commission Fisher, to approve Item V.B.7 as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

Item V.B.8 (Z0904101) – Michael A. Cochran & Kimberly G. Spence-Cochran’s request for a change from GU to AU on 1.0 acre, located on the north side of Detroit

Street, east of Hartville Avenue, which was recommended for approval by the Planning and Zoning Board.

 

Motion by Commissioner Fisher, seconded by Commissioner Anderson, to approve Item V.B.8 as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

Item V.B.9 (PAJ90401) – Brevard County Board of County Commissioners pursuant to Chapter 62, Article VI, Brevard County Code, Section 62-1152, and Brevard County Comprehensive Plan Policy 15.2, the following property is being considered for administrative rezoning:  Property owned by Florida Power & Light Company to change from AU, IU, and IU-1 to GML(U) on 47.7 acres, located on the west side of Highway 1, north and south of Clearview Drive, which was recommended for approval by the Planning and Zoning Board.

 

Motion by Commissioner Fisher, seconded by Commissioner Bolin, to approve Item V.B.9, as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously. 

 

 

Motion by Commissioner Bolin, seconded by Commissioner Fisher, to approve Executive Session on May 19, 2009 at 11:30 a.m. for Brevard County v. Jorge Gomez, Case No. 05-2007-CA-017136-XXXX-XX.  Motion carried and ordered unanimously. 

 

 

 

Upon motion and vote, the meeting adjourned at 6:12 p.m.

 

 

 

ATTEST:                                                         __________________________________

                                                                        CHUCK NELSON, CHAIRMAN

                                                                        BOARD OF COUNTY COMMISSIONERS

                                                                        BREVARD COUNTY, FLORIDA

___________________

SCOTT ELLIS, CLERK

 

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