The Board of County Commissioners of Brevard County, Florida, met in regular session on November 4, 1999, at 5:40 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Truman Scarborough, Commissioners Randy O'Brien, Nancy Higgs, Sue Carlson, and Helen Voltz, Assistant County Manager Peggy Busacca, and Assistant County Attorney Eden Bentley.

The Invocation was given by Dr. Richard Chandler of The First Methodist Church of Port St. John, Florida.

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

REPORT, RE: NEW VOTING MACHINES

Commissioner Voltz advised the voting on Tuesday went very well with the new equipment; at 7:07 p.m. the first precinct count came in from West Palm Bay; unfortunately Barefoot Bay had a bad modem, otherwise the Canvassing Board would have been done by 7:45 p.m. and would have had everything tallied; but they waited for that Precinct and did not get done until 8:45 p.m. She stated everything went well; she was at the polls most of the day asking people how they liked the new equipment; and everybody had good things to say about it and how much simpler it was to operate.

RESOLUTION, RE: RECOGNIZING PARRISH MEDICAL CENTER

Chairman Scarborough advised Parrish Medical Center is having a groundbreaking and asked the Board to honor them with a resolution recognizing their employees and wishing them well.

Motion by Commissioner Higgs, seconded by Commissioner Voltz, to adopt Resolution recognizing Parrish Medical Center Board of Directors, employees, medical staff, and volunteers for achieving accreditation with commendation. Motion carried and ordered unanimously.

REPORT, RE: TABLING OF ZONING ITEMS

Commissioner Voltz advised Ed Fleis is revising the site plan for Item 14, and requested the item be tabled until December 2, 1999. She stated she also wants to meet with the homeowners at the Condo and talk about some of the issues.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to table Item 14, P. F. and Pamela Nohrr and Lauren and Betty Koonin's request for CUP for additional building height in RU-2-15 zoning classification on 2.1 acres located on the east side of SR A1A and north of Atlantic Avenue, to December 2, 1999 Board of County Commissioners meeting for a revised site plan. Motion carried and ordered unanimously.

Zoning Official Rick Enos advised the Planning and Zoning Board tabled Item 3, Edward and Lynn Chartier's request, to its November 1, 1999 meeting and the Board of County Commissioners meeting on December 2, 1999.

Motion by Commissioner Voltz, seconded by Commissioner O'Brien, to table Item 3, Edward and Lynn Chartier's request for change from GU to AU on 1.04 acres located on the east side of Knoxville Avenue, south of Dalhi Street, as recommended by the P&Z Board. Motion carried and ordered unanimously.

Mr. Enos advised the applicant requested Item 5 be tabled to December 2, 1999, so they can submit the required site plan.

Motion by Commissioner Voltz, seconded by Commissioner O'Brien, to table Item 5, Jesus Christ Greater Love Outreach Ministries, Inc.'s request for CUP for a church in RU-2-10 zoning classification on 2.06 acres located on the northwest corner of School Street and Pineda Street to December 2, 1999 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Mr. Enos advised Item 7 was requested to be tabled by the applicant, Faith Lutheran Church of Merritt Island.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to table Item 7, Faith Lutheran Church of Merritt Island, Inc.'s request for change from AU and RU-1-9 to all AU and CUP for school on 5.95 acres located on the northeast corner of East Merritt Avenue and Fourth Street, to December 2, 1999. Motion carried and ordered unanimously.

REPORT, RE: HEARING PROCEDURES FOR ZONING MEETINGS

Commissioner Higgs advised it would be helpful for the County Attorney to give an outline of the nature of the zoning hearings and procedures that are used because they are different than a regular Commission meeting.

Assistant County Attorney Eden Bentley advised the zoning procedures are quasi-judicial procedures; and the Board is required to have evidence on each item. She stated the Board generally makes findings during the process; the applicants and people wishing to speak to each Item are asked to fill out a card at the back of the room; and the cards are given to the Chairman to organize the speakers. She stated the applicant is given 15 minutes to make a presentation, which includes the rebuttal time; the 15 minutes can be divided in the manner they wish; the people who speak for or against an item and fill out cards have five minutes each; and after those five minutes are used by each person, then the applicant may rebut those comments. Ms. Bentley advised the item then goes to discussion by the Board; if no additional information is given during the discussion period from staff, the Board can go immediately to motions; however, the rules provide if additional information is provided during the discussion period, the applicant can be given two minutes to rebut that additional information.

Commissioner O'Brien stated those rules were established as policy of the Board, but if the Commissioners ask the applicant or anyone else any questions, then those time limits are not necessarily set in concrete, and the discussion can ensue.

PUBLIC HEARING, RE: TABLED ITEMS FROM MAY 5, 1999 PORT ST. JOHN MEETING AND AUGUST 2, AND SEPTEMBER 8, 1999 PLANNING AND ZONING MEETINGS

Chairman Scarborough called for the public hearing to consider zoning items tabled by the Port St. John Dependent Special District Advisory Board at its May 5, 1999 meeting, and the Planning and Zoning (P&Z) Board at its August 2, and September 8, 1999 meetings, as follows:

Item 1. (PSJ90501) Patsy J. Clark's request for a conditional use permit (CUP) for alcoholic beverages on-premise consumption of beer and wine only in a BU-1 zoning classification on 0.56 acre located on the west side of U.S. 1, north of Fay Boulevard, which was approved by the P&Z Board.

Attorney Tim Pickles advised this is the fourth time they have been before the Board; in September, 1999, the Board tabled it for passage of an ordinance; they submitted additional findings and produced additional site plan and testimony; they have an expert planner, engineer, and the applicant present; and they are requesting a CUP as the use is consistent with zoning in the area, and they meet all the criteria.

Rochelle Lawandales presented Exhibits A through G to the Board, including her resume?, menus from other restaurants in the area, and a final report indicating findings of fact based on the new Ordinance regarding CUP's; and advised the engineer of record, Rodney Honeycutt, revised the site plan. She noted it is the same information the Board received, but addresses three additional factors; explained the site plan and Exhibits, noting a 4% increase in traffic, no nuisance factor, and compatibility with adjacent uses; and stated they meet all the requirements and are consistent with the Comprehensive Plan. She stated staff reviewed the new site plan and indicated they did not have a problem, but it has to go through the process.

Kathryn Smith, Betty Yates, and Robert Smith signed cards but did not wish to speak.

John Mitten, Pastor of Victory Baptist Church, expressed concern that Dogs R Us would be detrimental to young people in the area based on past performance of the owners; and stated it will attract an unsavory and criminal crowd, and bring down the community rather than add to it. He stated there are plenty of beer and wine establishments in the area; and requested the Board protect their community and not allow this establishment to come in.

Dennis Ammons stated the Board has seen the criminal reports on Dogs R Us; it is a nuisance in Titusville; and they do not want it in their community. He stated he hopes the Board will consider their youth, and take a stand to do the right thing and reject the permit.

Robert Mohr advised he works for Dogs R Us in Titusville and has never worked for a man who is more people conscious and concerned about his customers; he runs a straight ship; it is not like it was in the past; there are very few problems now; and there is no reason to deny the request as it would be an asset to Port St. John.

Maureen Rupe, President of Port St. John Homeowners Association, advised they voted to rescind their previous vote not to oppose the establishment and are now opposed to it. She stated, speaking as an individual, she opposed it when it came before their Advisory Board, and she still opposes it.

Dr. Rick Chandler, Pastor of the First United Methodist Church, requested the Board deny the CUP for Dogs R Us in Port St. John based on historical evidence and behavior that it has been a nuisance in its former and current locations in Brevard County. He stated the Board has law enforcement records and other documents to support the argument and assist it in this decision; and he would like to add two arguments. He stated Terry Jones, a law clerk, in a letter dated August 26, 1999 to the County Attorney, listed several precedence supporting parallel and synoptic cases; in each case it was confirmed that behavior by customers and clientele was enough evidence to show prima facie case of public nuisance; and he offered further examples from the Southern Reporter. Dr. Chandler stated it is inarguable with the precedent cases, case histories, and case law that the owners and managers of public establishments are responsible for the behavior of their patrons on the premises, including parking lots; case law also supports that the applicant has the responsibility to prove that he will not be a nuisance; however, historical evidence weighs against approval of their request. He quoted from the aforementioned letter as follows: "In the case of Dogs R Us, this restaurant has a record of more police responses for disturbances and disorderly conduct than the five nearby restaurants with alcoholic beverage licenses. One could argue the ambience of this particular restaurant creates a public nuisance, as evidence that surrounding restaurants do not have the same disorderly conduct with problems with patrons. Therefore, even though a restaurant that sells alcohol is not per se a nuisance, Dogs R Us could be perceived as a preventable nuisance." Dr. Chandler advised the Board has letters rescinding approval from the Port St. John Homeowners Association and from the Sunrise Village Condominium Association opposing the issuance of the permit. He stated the amount, frequency, and type of law enforcement calls to the establishment with the same board of directors, basically the same employees, and same close family ties involved supports the argument to deny the granting of a CUP. He stated the Board has a rare opportunity to deny the petition on three grounds--legal, moral, and a consensus of many people and organizations in Port St. John.

Attorney Pickles stated he appreciates the comments of the concerned citizens, and everyone is entitled to his or her opinion; however, the concerns they are espousing are not a basis for denial of the CUP. He stated they are talking about what may be a nuisance in the future; that is an enforcement issue; the Board has the power to stop a nuisance; and if it becomes a restaurant and something happens in the future, or the terms of the CUP are violated, the Board has the ability to revoke same and sue for an injunction to stop the activity. He advised the letter quoted by Dr. Chandler from Terry Jones to Scott Knox dated August 26, 1999, also states, "I could find no cases addressing whether a nuisance restaurant in one location could be prevented from opening another restaurant in another location." Mr. Pickles stated that sentence says, here is a nuisance, here are things that would constitute a nuisance, and yes, the Board can stop someone from operating an establishment that is a nuisance, but no, there are no cases that say the Board can tie one location to another and say that is the basis for denial for what is otherwise a legal avenue. He stated he respects their opinions and shares their concerns, but there are mechanisms for the County to address those problems. He stated, with regard to the specific criminal history listed in the memo, there is a correction; Mr. Enos' report that talks about calls and frequency of calls, noted Paul's Smokehouse, which is right down the road from Dogs R Us, actually had more frequent calls than Dogs R Us. He stated that may not be relevant to whether or not a CUP should be granted; however, in construing whether or not the Dogs R Us in Titusville is a nuisance or has problems, the Board cannot single them out as the worst offender in the area.

Ms. Lawandales explained the comparative analysis that the specific conditional use is only for the sale of beer and wine at the restaurant and is substantially different than what exists in Titusville. She stated the Dogs R Us in Titusville is much larger, approximately 4,000 square feet, seats 200 people, has 80 parking spaces, sells liquor, has a lounge, has no surrounding buffer and no landscaping, and directly abuts residential uses; while the proposed restaurant will be limited to 2,267 square feet, will seat around 75, will have 37 parking spaces, does not have a lounge or bar, will not sell liquor, only has restaurant seating, has approximately 60 feet of buffer between its property line and the nearest property line, is separated substantially from residential uses, and will be fenced and landscaped. She stated they hope the Board will consider this application on the basis of its own merits and ability to meet the Codes, and not on a fear that it may become a nuisance.

Chairman Scarborough advised he asked Mr. Knox if there was a means to deny the application based upon the relationships, and he said yes, there could be; but Mr. Enos' report indicated that all the conditions for the CUP under the new Ordinance have been met, and that is not an issue. Mr. Enos stated that is correct. Chairman Scarborough stated there are a whole list of things from abandoned vehicles to alarms, and other less relevant things, but there were 25 disturbances even though they were over a longer period of time. He stated Kelsey's in Port St. John had one, New York New York had one, Dogs R Us had six assault and batteries and only one other had two; and when considering the establishments which show a certain behavior of clientele, Dogs R Us stands out to a greater extent. He inquired if staff looked at the data in that respect; with Mr. Enos responding there seems to be a greater occurrence of some of those types of calls, but he would caution the Board about the length of the study, which was longer than others in the group. Chairman Scarborough stated his point is if some of the other items were excluded, the results may be substantially different because Dogs R Us alone had a vehicle burglary, mischief on property, criminal mischief of a vehicle, and drunken persons; and while it was for a longer period of time, when he polls those things where people have less than civil attitudes about how to behave, the propensity for it to occur at Dogs R Us increases dramatically; with Mr. Enos responding that does not appear to be the case. Chairman Scarborough inquired if that is a basis for denial; with Mr. Enos responding he would defer that question to the attorney.

Assistant County Attorney Christine Lepore advised it is a location that is different than the subject of the CUP, so legally, she does not think the Board can deny the permit, but it can impose conditions. Chairman Scarborough stated Mr. Knox said earlier that the Board could deny on that basis; with Ms. Lepore responding that is not her understanding in speaking with Mr. Knox as more research was done after the last meeting. Chairman Scarborough inquired where is Mr. Knox; with Ms. Lepore responding he had a family emergency and was not able to attend the meeting at the last minute. Chairman Scarborough stated he did not communicate that analysis to him; it is incumbent upon him to communicate it to the Board; and he is not happy with the way it has proceeded with the County Attorney's Office. He stated a County Attorney is married to one of the attorneys representing the applicant and had to step aside; the County Attorney previously gave advice, and now another attorney is here for the first time; and since it is a very technical issue, the Board should have adequate legal advice in order to proceed with the matter. He stated he wants Mr. Knox present to ask him questions on the record; and this item may go to court on appeal, so the conversation should be in the record.

Chairman Scarborough passed the gavel to Vice Chairman Higgs.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to table Item 1. (PSJ90501) Patsy J. Clark's request for CUP for alcoholic beverage on-premise consumption of beer and wine only in a BU-1 zoning classification on 0.56 acre located on the west side of U.S. 1, north of Fay Boulevard until December 2, 1999. Motion carried and ordered unanimously.

Vice Chairman Higgs returned the gavel to Chairman Scarborough.

Chairman Scarborough recommended staff extract those things that go to a disorderly type nature and exclude the others before running the calculations again.

Commissioner Voltz advised the Board needs to be careful, as the report states it is two totally different things; one has a liquor license and a bar and this request does not; so it may be comparing apples to oranges. Chairman Scarborough stated he wants to have the County Attorney present to discuss it. Commissioner Higgs requested the report contain more consistency in time periods so Commissioners can evaluate that; with Commissioner Voltz agreeing and noting one is 88 months and the other is nine months. Chairman Scarborough stated staff reduced it down to calls per month and further reduced it to a factor of seating, so there is an ability to put uniform numbers in there; and there are some things that are different than others, but he has no problem with it.

Commissioner Carlson inquired on what grounds was a CUP for alcoholic beverages denied on August 27, 1998; with Mr. Enos responding he does not recall specifically, but there were objections from the neighbors and some potential compatibility issues; and there was no site plan submitted because it was prior to the need to have a site plan.

Commissioner O'Brien inquired if the Board is supposed to continue discussion about a topic after it has been tabled; with Chairman Scarborough responding to the extent that a Commissioner wants to obtain additional information to prepare for the next meeting, it is appropriate; everybody is still in the room so nobody was prejudiced by the conversation; but if it was brought up after everybody had left, it could be said that someone did not hear what was going on. He stated it is important, if a Commissioner has a problem with the data or wants staff to prepare something, to put that into the record.

Item 2. J. W. Dunn Lodge No. 37, Inc.'s request for CUP for security trailer in AU zoning classification on five acres located on the north side of Julia Drive, west of Stewart Road, which was recommended for approval by the P&Z Board for one year with one renewal.

Jack Gordon, President of the J. W. Dunn Lodge No. 37, advised they are seeking a CUP renewal for the security trailer located on the property, a Fraternal Order of Police Lodge has been on the site since the 1960's; they are concerned about vandalism; and it is used by the scouts and other organizations for meetings. He noted they have submitted a site plan to the Planning and Zoning Office.

Commissioner Voltz requested Rick Enos explain the time line on the permit. Zoning Official Rick Enos advised the property was issued a permit in 1969 for a police lodge; it received a permit for a temporary security trailer in 1970; and that permit was renewed in 1979, 1984, 1990, and 1995 for four years. Commissioner Voltz stated a CUP for a security trailer for over 20 years is out of line, and she cannot support the renewal. Commissioner Higgs stated it does not meet the criteria of the Code.

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to deny Item 2, J. W. Dunn Lodge No. 37, Inc.'s request for renewal of a CUP for a security trailer on five acres located on the north side of Julia Drive, west of Stewart Road. Motion carried and ordered unanimously.

Item 3. (Z9909102) Robert D. Hussey's request for change from BU-1 to BU-2 on 0.57 acre located on the northwest corner of Gloria Avenue and Old Dixie Highway, which was recommended for approval by the P&Z Board.

Commissioner Scarborough advised he just received the plan yesterday and is disappointed in what is being proposed; he does not know if people who looked at it contemplated the proposed use; and he would like to talk to the applicant, otherwise he cannot vote in favor of the request tonight because it looks like a storage yard.

Robert Hussey advised everything that is in the letter Commissioner Scarborough has was discussed at a meeting which he requested with the Library, School Board, and people in the area who were opposed to what he was doing; and that seemed to be fine. Commissioner Scarborough stated they did not have the letter; and he talked to a few people who suggested further discussion.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to table Item 3 until December 2, 1999 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item 4. (Z9909402) Edward C. and Beverly J. Groseclose and Robert S. and Edna H. Pritchard's request for change from GU to BU-2 on 2.95 acres located on the west side of FEC Railway right-of-way and north of Pineda Causeway, which was recommended for approval by the P&Z Board with specific use for outside storage of RV's, boats, trailers, and automobiles, and all BU-1 uses.

Mike Renfro with Renfro Realty, representing the applicants, advised the original application was for BU-2 on a three-acre parcel approximately 150 feet off Pineda Causeway to put outside storage; and there are commercial to the south, residential to the west, railroad tracks to the east, and vacant property to the north. He stated it is an unusual situation; they tried to think of what they could do that would be least offensive; and they came up with the idea of outside storage. He stated they received approval from the P&Z Board and voluntarily restricted the uses to outside storage of cars, mobile homes, boats, and such, and all BU-1 uses. Mr. Renfro advised there were questions and concerns, one being access; his client purchased the property to the south that connects the subject property to Pineda Causeway; so they can get to the property by property of the same ownership. He stated another concern was buffering; and suggested leaving 20 feet from their westerly boundary in its natural state, and augmenting it with additional vegetation if it is not adequate to give a visual buffer. He stated after the 20 feet, they will install a six-foot masonry wall so that people will look at natural vegetation higher than six feet, then the wall.

Commissioner Carlson stated it is an unusual piece of property; unfortunately there is residential to the west; and she would feel more comfortable with a 25-foot vegetative buffer. She inquired what is the height of recreational vehicles; with Mr. Enos responding they average ten to twelve feet in height. Commissioner Carlson inquired what would be stored there specifically; with Mr. Renfro responding recreational vehicles, boats, and cars, because people who live in Suntree and Viera are not allowed to store those types of vehicles in their yards and have to find somewhere to store them. Commissioner Carlson inquired what will be the BU-1 uses; with Mr. Renfro responding it would be commensurate with outside storage. Commissioner Carlson recommended a binding development plan requiring a 25-foot buffer on the west side with a masonry wall and vegetative buffer being of a height that would require putting in mature vegetation so residents will not have to look at the storage area. Mr. Renfro stated they will augment it as necessary to accomplish what the Board is looking for, but in looking at the aerials, it is heavily treed. Commissioner Carlson stated she would prefer to preserve and augment what is there. Mr. Renfro stated he is comfortable with that.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to approve Item 4, subject to a binding development plan requiring additional buffering, vegetation, and masonry wall. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ZONING RECOMMENDATIONS OF OCTOBER 4, 1999

Chairman Scarborough called for the public hearing to consider the recommendations of the Planning and Zoning (P&Z) Board, made at its public hearing on October 4, 1999, as follows:

Item 1. (Z9910101) Hoyt G. and Sarah A. Mack and Ola Mae Mack's request for change from AU to RR-1 on 3 acres located on the west side of Freedom Avenue, south of Parker Street, which was recommended for approval by the P&Z Board.

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

Item 2. (Z9910102) Brevard County Board of County Commissioners, on its own motion, authorized administrative rezoning on property owned by Blessed Sacrament Catholic Church/Diocese of Orlando, on which a development order had been submitted initiating a consideration of a change in zoning from IU to BU-2 on 9.8 acres located on the west side of U.S. 1, south of MacArthur Circle, which was recommended for approval by the P&Z Board.

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

Item 3. (Z99010103) Edward H. and Lynn H. Chartier's request was tabled by the Board to December 2, 1999 earlier in the meeting.

Item 4. (Z9910104) Shirley M. Quinn and Geraldine Bryan's request for CUP for security trailer renewal in AU zoning classification on 5 acres located on the south side of Paces Landing Road, west of Arch road, which was recommended for approval by the P&Z Board for two years with one administrative renewal.

Commissioner Higgs inquired when was the CUP first approved; with Mr. Enos responding in 1983. Commissioner Higgs stated a security trailer relates to an immediate use; if what the Board wants in the area is RRMH-1 or other classifications that allow mobile homes, then it should do that; but the continued use of the provision for a security trailer, in light of what the Board did previously does not seem to be proper.

Geraldine Bryan advised she did not acquire the property until 1989, and did not apply for a permit until 1991. Chairman Scarborough inquired if Ms. Bryan lives on the property; with Ms. Bryan responding yes. Ms. Bryan stated she intends to build a permanent structure on the property hopefully within the next few years; she has livestock on the property and needs the permit because of vandalism, poaching, killing of some animals, and theft.

Chairman Scarborough inquired if there are other people living in the area; with Ms. Bryan responding there are not many people in the area; she owns the five acres to the west; and there is a home to the east on ten acres which has been vacant for two years. Chairman Scarborough inquired if she plans to build a home in two years; with Ms. Bryan responding that is her plan. Chairman Scarborough recommended approval for two years as final approval.

Commissioner Higgs inquired if Ms. Bryan renewed the permit before; with Ms. Bryan responding she applied in 1991, and renewed it subsequently after five years. Mr. Enos stated the original request was in 1983; there was a renewal in 1991; and there appears to have been at least one between that, but he does not have the date on it. Chairman Scarborough stated the Board has not told people there will be a day of reckoning with security trailer permits, and Ms. Bryan plans to build in two years. Ms. Bryan stated no one can see the trailer from the road or either side of the property. Commissioner Voltz stated she does not have a problem with this request, but staff should address the issue and come back with a policy. Commissioner Higgs stated it is in the Code; with Chairman Scarborough responding when rules are created and ignored for 20 years, they should not change in one night; this trailer is not hurting anybody; but it will adversely affect the applicant if the Board denies it tonight.

Commissioner Higgs advised there are five requests for CUP's for security trailers in the area; and inquired if that area should be rezoned to RRMH-1. Chairman Scarborough stated Ms. Bryan can have a security trailer while building a home; and if the Board is going to enforce the issue, it should notify everybody that they need to come into compliance. Commissioner Carlson recommended restricting the time limit. Commissioner Higgs stated the Board made changes to the Code regarding security trailers. Mr. Enos stated the conditional use process was reduced as far as the length, but the Board did not put a maximum number on renewals; it also established many circumstances where a mobile home could be a permitted use in some classifications; in AU they would need at least five acres and 200-foot setback for a permanent use; and it becomes the principal structure on the property.

Chairman Scarborough stated he has no problem creating rules and saying the Board is not going to renew CUP's for security trailers; but it needs to be widely known; and recommended Mr. Enos look into how to do that. Commissioner Higgs stated staff should look at how to handle all the CUP's and put off decision on this request until the Board decides how it will handle all of them consistently and look at proper zoning for the area.

Motion by Commissioner Voltz, seconded by Commissioner Scarborough, to approve Item 4 for two years only.

Chairman Scarborough stated when the Board considers a policy on conditional use permits for security trailers, it should give people two years to figure out what to do. Commissioner Voltz stated sometimes it takes a year to get all the plans and financing, etc. Commissioner Carlson stated it concerns her that the Board denied the other request. Chairman Scarborough stated it can be brought back for reconsideration. Commissioner Voltz stated Mr. Gordon was not living on the property, and there is nobody living in that trailer. Commissioner Higgs stated they used it for meetings and a variety of things. Commissioner Voltz stated Mr. Gordon said they plan to build a structure; he did not ask for anything less than five years; and the Board could have given him another year or so. Commissioner Carlson stated the Board needs to consider a policy to put a cap on the number of years and how many times it will allow renewals.

Mr. Enos advised there is another security trailer in the vicinity of the property and a tenant dwelling mobile home, which is a more permanent circumstance.

Chairman Scarborough called for a vote on the motion. Motion carried and ordered; Commissioner Higgs voted nay.

Chairman Scarborough advised Mr. Enos that the Board needs to know how many places where people are actually living in security trailers and do something other than kick them out. Mr. Enos stated they are all intended to be temporary residences. Chairman Scarborough requested a memo on the number that are existing; how they are being renewed; and statistics of how the whole thing works. He stated if someone has been in a security trailer for decades, he does not want that person to be shocked on a Thursday night.

Commissioner Voltz inquired when the CUP for the security trailer that the Board denied for J. W. Dunn Lodge No. 37 expires. She stated if it is soon, they may not have plans and assumed it would be approved; so maybe the Board could consider another year. Chairman Scarborough stated it can be brought up for reconsideration; with Assistant County Attorney Eden Bentley responding it should not be brought up because the Board does not know who was here in opposition; and recommended letting it stand and allowing him to reapply with waiver of time and fee, or implementing administrative rezoning so the Board would give notice to surrounding property owners again. She stated she does not know who attended the P&Z meeting and did not come to this hearing because there was a recommendation in place. Chairman Scarborough stated why would people go to a meeting in opposition and say nothing; with Ms. Bentley responding people do that sometimes; and it would be difficult to defend a reconsideration when the Board's practice has been to hear items and move on. Commissioner Voltz requested staff check on when the permit expires; with Mr. Enos responding he will do that, but thinks it has already expired.

Commissioner Higgs stated she did not suggest putting people out on the street; but suggested developing a policy and handling all permits consistently, and not to evict people tonight.

Item 5. (Z9910201) Jesus Christ Greater Love Outreach Ministries, Inc.'s request was tabled earlier in the meeting to December 2, 1999.

Item 6. (Z9910202) Emerald Plaza Development, Inc.'s request for conditional use permit for alcoholic beverages on-premise consumption in BU-1 on 0.13 acre located on the west side of North Courtenay Parkway, north of Barony Drive, which was recommended for approval by the P&Z Board.

Elsie Morton advised they submitted everything requested by the County; the Board granted conditional use permits for Buildings 1 through 3; and they are requesting the same for Buildings 3 through 9 in the Plaza. Commissioner O'Brien inquired who will operate the bar; with Ms. Morton responding she and her son.

Commissioner O'Brien stated it is close to Merritt Island High School; the High School now includes ninth graders, so there are children 13 to 14 years old in the area; it is a quality of life issue for the residents of Merritt Island; and they do not want the area known as pool hall city. He stated Merritt Island does not want an outpouring of drunk drivers on already congested SR 3; there are many accidents at that intersection; construction on SR 3 will begin soon; and his representative on the P&Z Board expressed real concern about the 2:00 a.m. closing and putting drunks on the road. He stated there are a lot of beer halls and pool halls in close proximity; the entire community would prefer a reduction in the number of licensed alcohol establishments in this specific area of the Courtenay corridor; there are already insufficient sheriff deputies in that area of Merritt Island; and this would put more strain on an already undermanned Sheriff's Department on Merritt Island. He stated citizens who patrol neighborhoods have been out there trying to take care of problems that generally go with those type of operations; it is one block from Mustang Way; he does not want the children growing up on Merritt Island thinking they live in a honky-tonk village; there are three other bars within a quarter of a mile of this property; and the concerns are serious problems with drunk driving, late driving, congestion, accidents, and being close to a school.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to deny Item 6 based on it being incompatible with the area; and it will be crowding pool halls and bars in one area, all within sight of Merritt Island High School, which is not good for the community. Motion carried and ordered unanimously.

The meeting recessed at 6:57 p.m. and reconvened at 7:16 p.m.

Item 7. (Z9910203) Faith Lutheran Church of Merritt Island, Inc.'s request was tabled to December 2, 1999 by the Board of County Commissioners earlier in the meeting.

Item 8. (Z9910301) Dennis B. and Karen L. Crawford's request for CUP for wild animals in GU and RR-1 on 3? acres located west of Highway A1A, north of River Oaks Road, which was recommended for denial by the P&Z Board.

Commissioner Higgs advised she talked to Mr. Crawford on the phone and referred him to staff; and she talked to some residents who met with staff, but not about how she would vote.

Attorney Tino Gonzalez, representing Dennis Crawford, advised the conditional use permit (CUP) is limited to one thing; Mr. and Mrs. Crawford are seeking the CUP to have an exotic cat known as a caracal; it is their daughter's pet "Peanuts"; and pictures were submitted to the P&Z staff along with an article. He stated Catherine Rayburn is here as an expert witness; she is educated in zoology and received a Masters in Zoology from University of Massachusetts and Bachelors in Zoology from the University of Florida; and she worked at the University of Florida Animal/ Primate Research Center for a number of years. He submitted her curriculum vitae to the Board. Mr. Gonzalez advised there are going to be a lot of people who will voice their concerns about something other than what the CUP is about; and it is that Mr. Crawford, being an exotic animal dealer licensed by the proper authority, Florida Freshwater Fish and Game Commission, may or may not have primates at his residence based upon what happened when he first moved into his residence. He requested to call Catherine Rayburn to provide testimony.

Chairman Scarborough inquired if the caracal is here; with Mr. Gonzalez responding no, it is only six months old; the animal in the back is a red crested tamarin monkey; and the reason they brought it is because they were anticipating people voicing concerns over the primates Mr. Crawford had at his residence at one time. Mr. Gonzalez noted the primary concern of everybody at the P&Z meeting was Mr. Crawford having animals; and they desired he, as a condition, agree to limit the number of monkeys. He stated it is not a collateral issue because the Zoning Ordinance permits people to have monkeys without a CUP or special exceptions if they are properly licensed by the Florida Freshwater Fish and Game Commission; and Mr. Crawford is properly licensed. He presented documentation to the Board.

Mr. Gonzalez questioned Catherine Rayburn who responded relating to her curriculum vitae being true and an accurate reflection of her education, her work at the Animal Primate Research Center and other places as a research scientist, and that she had a bobcat for a pet at one time. Mr. Gonzalez inquired if the bobcat would be analogous to the caracal Mr. Crawford is seeking to have stay at his house, and if she saw the animal; with Ms. Rayburn responding yes. Mr. Gonzalez inquired if Ms. Rayburn, in her experience as a research scientist and as a result of her educational background of studying animals in a scientific environment and in the wild, feels she can render an opinion as an expert on whether or not the caracal at its present stage of six months old or as an adult would pose a danger to Mr. Crawford's family or any neighbors in any way; with Ms. Rayburn responding it would be less harmful than a small dog. Mr. Gonzalez inquired about the noise the animal would make; with Ms. Rayburn responding the animal is known to make only small coughing sounds; it is not a screamer; and it would make less noise than a cat. Mr. Gonzalez inquired if Ms. Rayburn did research on caracals; with Ms. Rayburn responding yes, she turned in a lot of stuff. Mr. Gonzalez inquired if she did an article on small exotic animals from A to Z by Patch Stone Country Store Enterprises published in April 1995; and Ms. Rayburn responded yes. Mr. Gonzalez submitted a picture of Peanuts at six months or younger; and inquired what is the average size of an adult male caracal; with Ms. Rayburn responding 20 to 25 pounds; and noted a housecat can be that size if it is overweight. Mr. Gonzalez inquired if the picture of a caracal in its adult stage is a true and accurate representation; with Ms. Rayburn responding it is a little bigger than a housecat normally. He inquired if Ms. Rayburn saw Peanuts in his presence, if the caracal never saw them before, and how it reacted; with Ms. Rayburn responding Peanuts had never seen either of them before and played with Mr. Gonzalez's tie. Mr. Gonzalez inquired if Peanuts were to escape in a worst case scenario and saw a stranger, what would he do; with Ms. Rayburn responding he would hide. She stated cats are very quiet animals; they hide if they are terrified of other people; and they are territorial and do not leave home. Mr. Gonzalez inquired what Ms. Rayburn found in the history of caracals as far as them being domesticated; with Ms. Rayburn responding they have been domesticated for hundreds of years and were used in Arabia and India for hunting dog activities. Mr. Gonzalez inquired if the animals have inoculation against rabies; with Ms. Rayburn responding yes, they can be treated like a normal cat or dog and be inoculated for rabies after one year. Mr. Gonzalez inquired if the caracal did escape from the residence, what would it do at feeding time; with Ms. Rayburn responding come home.

Mr. Gonzalez stated he is sure the issue of potential primates will come up; Mr. Crawford is a licensed animal dealer; he can buy and sell any animal including elephants, giraffes, and crocodiles, but he limits his business to primates; and he has sold all the stock he had at the residence when he first moved there. He requested any comments from the audience be limited to rational and reasonable objections to the request, which is to have Peanuts stay at the Crawfords' house. He noted Pokey the monkey is in the back of the room; and Chairman Scarborough requested he be brought to the front. Mr. Gonzalez stated he presented a contract of Mr. Crawford's showing he sold 90% of the primates he had at the residence; he does have a wild animal farm in New Smyrna Beach where all his wild animals are; if Mr. Crawford had monkeys like Pokey at his house, none of the neighbors would complain; he has some birds there; and objections will be from people who believe Mr. Crawford was going to have a monkey farm at his residence. Mr. Gonzalez advised Mr. Crawford spoke to the Zoning Board when he first moved to his residence; he asked them if he could move his pet monkeys there, and they said yes; he moved approximately 45 monkeys there, many approximately 12 pounds in size; and submitted a picture of a Diana monkey which is the largest monkey Mr. Crawford has. He stated Mr. Crawford anticipates moving the rest of the monkeys, about ten, and the Ordinance permits him to have monkeys as pets; he will do that only to the extent permitted by law; and there is every ability for Code Enforcement to control his having his pet primates. He stated when Code Enforcement was at Mr. Crawford's home on one occasion, there were barnyard animals at the neighbor's house making more noise than the monkeys; Ms. Rayburn can address any concerns about monkeys that may come up later, having worked in the primate program at the University of Florida; the vocal monkeys will no longer be at the residence; and the monkeys that will be there will be no more obnoxious or boisterous than Pokey.

Commissioner Higgs inquired if the picture of Peanuts is the current size of the animal; with Mr. Crawford responding that was eight weeks old and he is six months old now. Mr. Gonzalez stated the other pictures they submitted are about what the animal looks like when it is full grown; and explained the pictures. Commissioner Higgs stated Mr. Gonzalez brought up the issue of the primates as a concern; and inquired if he is going to make any stipulation on behalf of his client regarding any conditions for the CUP in regard to primates; with Mr. Gonzalez responding their stipulation will be that he will abide by every County Code and Ordinance regarding primates.

Dennis Crawford advised he has gotten an education on this issue; at the outset he did not know what he knows now; and he has adjusted to the situation. He stated he had quite a few animals because they take care of them and the animals need them; but after speaking to Commissioner Higgs he realized he needed to come into compliance so he took all his animals to a wildlife park in New Smyrna. He stated they did not get the care they would have gotten from his wife and him and a few died; so he made a decision to sell most of them, but kept his core which are their pets, some of which are the same monkeys they had when they lived in Floridana Beach. He stated he does not need the animals to make money; they are incidental to his business and he was able to collect them over time; but he makes money buying and selling from institutions to other institutions, and does not need the animals so he sold all his animals except his pets which is what he will bring to his house. He stated the cat is a caracal kitten; it is his daughter's pet; and she sleeps with it and loves it, but they need a CUP to keep it.

Commissioner Higgs inquired, if the Board were willing to consider the CUP for the caracal, would Mr. Crawford be willing to limit the number of primates that would be on the property; with Mr. Crawford responding if it is reasonable, yes. He stated he does not want to say he will only have the existing animals because if an opportunity arises, he will buy a mate for Pokey; they are social animals and should not be kept alone; he looks for the best environment for his pets; and the best thing he can give Pokey is a mate. He stated he would be willing to consider a reasonable number, but not be limited to exactly what he has now. Commissioner Higgs requested Mr. Crawford think about that and after hearing other testimony, the Board may ask that question. Mr. Crawford stated he is willing to be reasonable. Commissioner Higgs stated the term "reasonable" cannot fit in anything the Board could deal with tonight; and if the Board were willing, it would need a number. Mr. Crawford noted they could come up with a number.

Ms. Bentley advised the Code allows monkeys as pets; however, there are health and safety codes that may apply as well, depending on the circumstances. Commissioner Carlson inquired if there is a limit on the number a person can have; with Ms. Bentley responding not in the Ordinance. Commissioner Carlson inquired about the number of regular house pets; with Ms. Bentley responding there are numbers on dogs. Chairman Scarborough inquired if people can have as many monkeys as they want; with Ms. Bentley responding apparently so, that is why the Board has to make the qualification about the Health Code which might come into play if there is a large number of animals.

Commissioner Higgs advised according to the Memo she has, while a caracal, which is a Class II animal, can be vaccinated for rabies, the State does not recognize it as providing necessary protection against contracting rabies; and inquired if Ms. Rayburn could respond to that statement. Ms. Rayburn advised if the animal is given the same vaccine as cats and dogs and it is in the same species as the housecat, it would develop exactly the same antibodies and be resistant to rabies. She stated it cannot give rabies, but if it is given a live vaccine, it can get rabies, so they give cats dead rabies vaccines; and that is what the pet would get like all other pets. Commissioner Higgs inquired if Ms. Rayburn feels the statement that they do not get the necessary protection against contracting rabies is not a true statement. Ms. Rayburn stated if they are exactly genetically related to a cat and a cat gets protection from the same rabies shot, the caracal, which is in the same genus as the cat and can mate with a cat, will have the same genetic background for tolerating the rabies vaccine. Commissioner Higgs inquired if Ms. Rayburn is saying it is fully protected; with Ms. Rayburn responding yes, it will develop antibodies and be resistant to the disease just as humans get protection from vaccinations. Mr. Gonzalez stated the article he submitted about small mammals has a statement that they can be inoculated with the dead rabies, and that is the appropriate way to do it.

Virginia Foley advised she and her husband own 65 acres within approximately 500 feet of the subject property; she and her neighbors have no misunderstandings about Mr. Crawford's motives; she understands people can have monkeys as pets, but they cannot be there for breeding and selling commercially; and Mr. Crawford is a commercial breeder and seller of exotic animals, and advertises on the Internet as such. She stated she is afraid of the caracal; she does not know a lot about it, but it is classified as a wild animal; there are a lot of children in the neighborhood including her daughter; and because there are large tracts of land in the area, there are not that many people who live there. She stated she is against the CUP and her husband is against it also.

William Schrader inquired if he could be the last speaker. Commissioner O'Brien stated the Board has not allowed it in the past and should not set a precedent now. Chairman Scarborough stated he does not have a problem if nobody else has a problem. Commissioner O'Brien stated he does not have a problem on a personal basis, but if the Board starts to do it now, it may become a problem in other forums on other topics. Commissioner O'Brien inquired if the Board was discussing the Manatee Protection Plan and everybody wanted to be the last speaker, what would happen? Chairman Scarborough stated the reason he does not have a problem with this item is because the applicant is given the opportunity to rebut; that policy segregates who talks last; so if the people who are speaking on one side of a zoning item agree on a sequence, it should not affect the other side. Commissioner O'Brien stated he agrees, but it is a matter of procedure.

Pam Acevedo advised she lives north of the subject property; she is not a personal friend of the Crawfords and does not know them; she heard about what they are proposing for their property and has been looking into it; and there are a lot of questions that need answers, such as where do the animals come from, how do people know if they are clean, and how do people know they are going to be maintained, before it is decided on and allowed in a residential area. She stated as Ms. Foley said, Mr. Crawford advertises as a breeder so it is a commercial enterprise; if a man has a considerable piece of property and is clearing it and building cages of significant sizes, her instincts tell her it is not going to be a small private home pet enterprise. She inquired why they are seeking a CUP and land use change if there are no bigger plans on the horizon. She stated he can have as many monkeys as he wants on this property; she is surprised the County does not consider monkeys as wild animals; the monkey that is present is precious, but what about Cocoa the gorilla; he might be able to bring her to his property in a cage. She stated 300 tamarins may sound like birds, but 300 gorillas on the South Beaches would have neighbors in an uproar. Ms. Acevedo advised she pulled information from the Internet on pathology of non-human primates; the big concern is not only exposure but waste management, parasites, bacteria, systemic pathology, including herpes, AIDS, simian, and things that scientists today do not have answers to; and presented the list to the Board. She requested the Board give strong consideration to the issues before allowing this operation to go into a residential neighborhood.

Mark Shantzis advised he lives about an eighth of a mile from the property on the other side; and inquired if Commissioner Higgs understood the difference in the comment from Ms. Rayburn about the dispute on what the State says versus what she says about the safety of the caracal, and why it can or cannot be inoculated for rabies. Commissioner Higgs stated she understood Ms. Rayburn's opinion, and the Board will later have an opinion from its Animal Control Director. Mr. Shantzis inquired if anyone is capable of analyzing the issue of wild animals and rabies; and stated it is an area of science that nobody really understands. He noted they are cutting trees in the rain forests and coming up with diseases that are spreading because they have never seen them before; so disease is an issue nobody understands. He stated Mr. Crawford said he had some misunderstandings; he can understand why Mr. Crawford had misunderstandings; he has a two-pound monkey here that is adorable, but is talking about a 20 to 40 pound wild cat; and if he was trying to get a permit for a wild cat, he would have brought the cat in and not a monkey. He stated he understands Ms. Rayburn is an expert, but Section 62-1958 of the County Code states, "No animal, the keeping of which could be obnoxious or disturbing to others in the adjacent area, shall be permitted"; and a bunch of people who live in the area have come before the Board and said it is obnoxious and objected to the wild animal. Mr. Shantzis stated paragraph (2) of Section 62-1958 says if the Board decides an animal is dangerous and harmful to human safety, it shall not be permitted; and inquired if each Commissioner would mind having this wild animal permitted in a house next to their house, and if the animal got out and a four-year old child grabbed it around the neck, what would be the reaction of the animal. He stated no one would know because there is not enough history; there is history on dogs and cats and laws for dogs and cats; but there is no history on wild animals to show what will happen if the 20 to 40 lb. cat met face-to-face with a four-year old child. He stated Mr. Crawford said given the opportunity he would buy a mate, and he does not want to be restricted on how many monkeys he is going to have on his property; he assumes mates in a cage together will breed; so Mr. Crawford has basically put himself in this problem. He stated it is a residential neighborhood; the CUP is in conflict with the Comprehensive Plan's Policies 4.1, 4.3 and 4.4; and there are no hardships other than those created by the applicant.

Wendy Lee advised she lives 100 feet from Mr. Crawford's property and opposes the CUP because it is not consistent with the County's and State's Comprehensive Plans which designate the area as residential and Preserves. She stated since the land has been used for illegal activities, it should not be given special privileges; Mr. Crawford and his attorney said it is not about monkeys, but yet he brought a monkey into this room and discussed the monkey situation; so she cannot help but feel it is about that also. She stated she has concerns about the caracal getting loose; even though it has been de-clawed, cats bite; and they do not know enough about caracals to make a judgment on it.

Fred Lee stated he has a 100-foot strip of land with no trees between his property and Mr. Crawford's property; his wife said it is interesting that this is about a cat, yet Mr. Crawford and his attorney have done nothing but talk about the monkey situation; the gentleman is asking for a CUP for one cat, but at the P&Z meeting he amended his petition; it was for a serval and a lemur; and now it is about a caracal. He stated the expert witness said the cat can be inoculated for rabies when in fact they will hear from Animal Control that it cannot, and the State said it cannot. He advised the packet given to the Board includes an article that was in Dateline quoting the pet epidemiologist for the Center of Disease Control, Dr. Ostrowski, saying no exotic animal should be allowed to be kept for pets because they cannot inoculate wild exotic animals. He stated the Yerkes Primate Center's website says exotic animals, including primates, should not be kept as pets; it is a glitch in the law that allows Mr. Crawford to have an unlimited number of monkeys; and they will be back to discuss that with the Board because they do not want it to end here and want to fix the glitch even though it would not pertain to this applicant. Mr. Lee advised Mr. Crawford testified he sold all the primates; and inquired what would stop him from buying new ones; and if he gets the CUP for the cat when his business is exotic animal breeding, it is not short of an end run to have hundreds of monkeys the way it was in the beginning. He stated Mr. Crawford was aware the zoning would not permit it, yet he moved the monkeys there; the residents immediately called the Zoning people who came out and in their report counted ten cages of exotic animals; however, within ten days, the cages amounted to 48 for exotic animals; and they do not feel the applicant can be trusted with a CUP when his ultimate goal is to have his exotic animal business on his property. He stated there are only two people here in favor of the CUP, Mr. and Mrs. Crawford; they presented a petition signed by over 125 neighbors in the area, and have another 30 or so signatures that he will not bother to give the Board; and explained a REDI map showing the properties in the area, colored to represent those property owners against the CUP, Mr. Crawford's property, and the Archie Carr Preserve. Mr. Lee stated it is appalling that people can have an unlimited number of monkeys; and inquired who will protect him and his family from those wild animals. He stated he does not want the applicant to have a CUP; he does not need it for one animal; if he chooses to have exotic animals as pets, that is his problem; and it is not a cat, dog, or gerbil, it is an exotic animal that cannot be vaccinated for rabies.

Commissioner Higgs advised John and Sheila McCarthy did not wish to speak, but are opposed to the issuance of the conditional use permit.

William Schrader presented documentation to the Board; stated his property abuts the subject property to the south; the distance runs over 1,500 feet, and both properties are only 100 feet wide; his home is ten feet or so from the property line; and the GU portion, which is part of the property he is asking for the CUP, says it has to be at least five acres and minimum width of 300 feet. He stated the properties are only 100 feet wide; the request is not compatible with the character of adjacent properties; he had his house on the market; and he was told he could not sell it because of the situation next door with all the wild animals, odor, noise and unsightly cages. He presented a picture of his house that was offered for sale at $1,295,000, and noted it is not a shack; stated the request is out of character with the surrounding community; and it would be ludicrous to expect that the situation would not reduce the value of his property. Mr. Schrader advised the County laws state that if any substantial devaluation of property would occur, it should not be permitted; and he was told to take his house off the market because no one would want to buy it with the condition existing next door. He stated if it is approved, he would have to advise perspective buyers of the person next door who can bring in wild animals; there are at least another dozen people who live in the area who would have to say the same thing; and if they did not disclose it, they could be sued and would probably lose the case; so it is more serous than just a monkey or a cat. He stated when Mr. Crawford brought the animals in originally, they had the misfortune of experiencing what it was like; he made recordings from inside his house and was going to play them tonight but realized he only had five minutes; but he will leave the tape with the County for the record. He noted Commissioner Higgs heard part of it in her office when he played it for her to give her an idea of what was going on.

Chairman Scarborough inquired if the tape is of the noise from the animals; with Mr. Schrader responding yes, and what they had to deal with before he was forced to move them. Commissioner Voltz stated it is not the current situation; with Mr. Schrader responding no, but it is a fear they have that it could escalate to that again. He inquired if the officers in the back are going to testify to certain things; with Chairman Scarborough responding that is why they are present. Mr. Schrader stated he has copies of their reports stating conditions at that time, and that if the animals were inoculated, the State would still consider it a non-inoculation because it will not work. Chairman Scarborough stated under the CUP criteria there are things that are relevant; the reduction diminution of adjoining property values is part of it; and inquired if Mr. Schrader was advised how much less his property would sell for, not because of the monkeys, but because of the caracal; with Mr. Schrader responding he was advised that he probably could not sell it unless he gave it away. Chairman Scarborough inquired if he has a figure for giving it away; with Mr. Schrader responding he went to an MAI appraiser who wanted $5,000 to do the appraisal and appear at the meeting; he feels like he is a victim even though he is an innocent party to this situation; he spent over $5,000 putting shrubbery along the entire 1,500 feet of property; but it will take a year or two to grow, and would still not stop the smell or noise. Chairman Scarborough stated one criteria the Board has to follow is the diminution of abutting property values; clearly that is an issue; the unfortunate thing is the issues of primates and the feline are being combined in the diminution; and inquired if there was no cat on the property, would there still be a diminution in value because of the number of monkeys; with Mr. Schrader responding it all contributes to it. Chairman Scarborough stated he heard substantial and adverse impact on adjoining and nearby properties due to noise and odor; and inquired what type of noise did Mr. Schrader hear from the feline; with Mr. Schrader responding he cannot distinguish what noise comes from what animal because he is not an expert on animals and does not want to go on Mr. Crawford's property, but there was a great deal of noise coming from the property. Chairman Scarborough inquired about odors; with Mr. Schrader responding there were strong odors at times, depending on the way the wind was blowing and especially after rains; and their report includes an examination by Environmental Health Services which said there was feces on the property. Mr. Schrader stated Mr. Crawford just hoses down the cages and all that leaches into the ground; and a sketch of the survey shows the wells in the area for their drinking water, which is another issue.

Commissioner Voltz inquired if the smell came primarily from the monkeys; with Mr. Schrader responding he does not know. Commissioner Voltz stated since the cat is kept indoors she would assume Mr. Schrader could not smell odors from inside the Crawford house; with Mr. Schrader responding he cannot.

Mr. Schrader stated Section 62-1958 of the Brevard County Code states, "No animal, the keeping of which could be obnoxious or disturbing to others in the adjacent area shall be permitted"; obviously it is disturbing to him; and inquired if the permit is for one little cat, why two days ago was a bobcat trailered in, and today there was a lot of commotion on the property. He stated they are clearing a lot of area; he can see cages he never saw before; the property is still riddled with cages and all kinds of equipment; and it looks like a commercial enterprise instead of the beautiful wooded area it was a short while back. He stated if the Board grants the request, he would ask it to provide specific conditions that would go on the record, that it be limited to one caracal or serval and four small monkeys, not big baboons or something that would make a lot of noise like the one that was there whose scream could be heard from three miles away. He noted he has other things but his time has run out, but if the Board is interested later on, he will be glad to provide those things.

Commissioner Higgs advised the applicant has rebuttal time, but the Board should take a statement from Animal Control then let the applicant rebut. She inquired if Dr. Ward wanted to speak on the issue of rabies.

Chairman Scarborough inquired if there are restrictions on the number of structures that can be scattered on property such as cages; with Mr. Enos responding the Zoning Code does not deal with those issues. Chairman Scarborough stated that can make a mess of a piece of property, so the Ordinance may need some changes after tonight. Mr. Enos advised the Board asked staff to put together a report; that should be coming to the Board shortly; and it will deal with those types of issues.

Commissioner Higgs suggested Dr. Ward put on the record his credentials and experience as well as anyone else who testifies.

Dr. Joseph Ward, Director of Animal Services and Enforcement Department, advised his B.A., M.A. and Ph.D. are all in zoology; his experience has been with mammals, reptiles, and amphibians primarily; he has limited experience with birds; and he has been the Director of Animal Services and Enforcement Department for Brevard County for two years. He stated relative to vaccination of wild animals or exotic animals for rabies, all animals can get rabies; some of them have a lower propensity than others; cats are in the high-risk group, any kind of cat; the vaccination of those animals have been routinely conjunctive to that of domestic strains, such as a housecat; however, whatever impact that has on the animal that is inoculated, it is not recognized by the Center for Disease Control or State Health Services as being vaccinated against rabies. He stated the impact is legally that it is not vaccinated no matter what it has been vaccinated with. Dr. Ward stated there may be some concern relative to the issue about the cats being out and about; there is some chance of that happening; his understanding is that with caracals, as they get older, they are more of a problem with marking territories and defecating in different places and would probably be more suitable to an outdoor cage than inside a house; he has seen the cages Mr. Crawford erected which seemed like they would contain the animals; there are precautions in the way he has constructed the cages; it is a dual-gate construction; and one gate could be closed while the other one is opened to reduce the risk of an animal inadvertently escaping, but it does not preclude the animal from escaping. He stated under the health provisions, if an animal scratched or bit any human, what would happen is either the victim would have to sign a waiver and say he or she did not care whether the animal was vaccinated, or the animal would have to be decapitated and the head sent off for final analysis which is done at Jacksonville Laboratories. He stated that decision would be made by Dr. Heshmati, the head of the Health Department. Dr. Ward advised one consideration would be the likelihood of exposure of that animal to what is considered the main rabies carrier in this part of the world, the raccoon; if the animal was in a cage that allowed raccoons to approach it, it would be considered high risk and would probably be decapitated; but if there was low risk, in other words, if it stayed inside a house for its entire life span, the likelihood of exposure to rabies would be very low; so there could be considerations to allow an extended quarantine which would be Dr. Hesmati's opinion. He stated in terms of ferocity of the animal, he understands that caracals are quite tame when younger; when they get older, that can change somewhat; although in all likelihood, if the animal is raised the way it has been indicated, it probably would not become wild and attack everything that comes around; however, it does not take much of an incident for an exposure to occur. He stated it could scratch, bite, or lick a person on the lips or eyes which creates exposure if it is shedding live viruses for rabies; and his major concern is the impact on the animal and on the community in terms of rabies. He stated Sergeant Early, who has a lot of experience with cats, is here to answer any questions; and he has been working in zoos and with zoo veterinarians for years.

Mr. Gonzalez inquired if the caracal would pose any more of a danger as far as being inoculated against rabies than any other housecat; with Dr. Ward responding yes it would because housecats have a vaccine that has been approved and recognized as being successful in reducing the risk of rabies in housecats. Mr. Gonzalez inquired if Dr. Ward in his own opinion would say the vaccination for the animal would or would not work even though it is not recognized; with Dr. Ward responding it may work in terms of protecting the animal, but that is incidental because the concern is whether or not it is a recognized vaccine and it is not a recognized vaccine. Mr. Gonzalez inquired if caracals are routinely kept as pets throughout America by numerous people; with Dr. Ward responding he has heard of them being kept as pets, but routinely would not be the ideal choice of words. Sergeant Early advised the most commonly kept medium size cats are oscelots, caracals, and servals; for people who keep wild cats, it is a common species; but it is not common to the point that they are seen everywhere. He stated they require permits in Florida; certain states do not require wild animal permits; and all three are Class II animals. Mr. Gonzalez inquired if it is a fair statement that their preys normally, even in the wild, are small mammals and birds; with Sergeant Early responding yes, predominantly birds. Mr. Gonzalez inquired if Sergeant Early heard of any of those animals attacking humans; with Sergeant Early responding he has never experienced caracals other than in a zoo situation; and he has never known anyone personally who owned them as pets.

Mr. Gonzalez advise his client would stipulate that the animal will stay in the house; it is a housecat; it stays in the house; the Florida Freshwater Fish and Game rules require Mr. Crawford to keep a cage for this animal, but they agree when it reaches a point and time where it could not be kept in a house, it would go; and inquired of Mr. Crawford if that is a fair statement. Mr. Crawford advised the State requires an adequate size cage with proper specifications met for that type of animal to get the license; he has a cage and had the cats there before; that is the cage Dr. Ward looked at; but it is incidental, as the cat is his daughter's pet and sleeps with her and lives in her room. Commissioner Voltz inquired how old is Mr. Crawford's daughter; with Mr. Crawford responding 16.

Commissioner Carlson stated Mr. Crawford is talking about guaranteeing they will keep the animal in the house; part of the materials from speakers and from the Central Brevard Humane Society shows that in May of 1998, they picked up a serval or oscelot named Jasper that the owner picked up later; so obviously the animal got loose. She inquired how can Mr. Crawford guarantee this animal would stay in the house when he could not keep the other one in the house; with Mr. Crawford responding it was not Jasper, it was Nyah, and it was a serval; they take every possible precaution to keep them in the house or the cage; when Nyah escaped she was in a cage outside and in heat; his wife went out there and it was raining; she asked to bring the cat in and put her down; but she did not bother to check the garage door which was up; and the cat went out through the garage. Commissioner Carlson stated it would not bother her if it was a domestic cat; but it is a wild animal no matter how tame they are; and Dr. Ward said they do not know how they are going to react once they are in the wild which is where they belong to begin with. Mr. Crawford stated they are not dangerous.

Commissioner O'Brien stated the cat can be tame but it is still a wild animal; and inquired if it is house broken and uses the litter box; with Mr. Crawford responding absolutely, and there is nothing the cat does that a regular housecat would not do. Commissioner O'Brien inquired if it weighs 40 pounds; with Mr. Crawford responding it is overfed if it weighs 40 pounds; he had a pair of adult servals; and the male weighed 25 pounds. Commissioner Voltz stated her secretary's cat is a regular housecat and weighed 40 pounds.

Mr. Gonzalez stated, in addressing the concerns of those who spoke in opposition, he would like to point out that nobody said when the cat was there they have heard the cat, smelled the cat, saw the cat, any more than a regular housecat; Ms. Rayburn testified in her opinion it is not a dangerous animal; she actually saw the animal; and he assumes Dr. Ward also saw the animal; but it was at the house initially then moved to the wildlife park in New Smyrna. He stated there are bobcats in and around the wildlife sanctuary which borders Mr. Crawford's house; they discussed what Mr. Schrader said about someone trucking in a bobcat and do not know what he is talking about; nobody trucked in a bobcat to Mr. Crawford's house; so it must have been somebody else. He stated Mr. Lee said they originally asked for a serval and caracal; prior to the meeting with the P&Z Board, they discussed having the CUP for one animal; and that is what they felt was appropriate. He stated Mr. Crawford, when he originally filed the request, do so pursuant to his discussions with the County staff; and was somewhat told the recommendations; Mr. Crawford later talked to him and he communicated with staff and came up with what was reasonable and rational; and that is only one animal; and they are happy to limit the request to that one animal. He stated Mr. Crawford's business is not breeding animals, it is buying and selling animals; he is more or less the middleman and communicates with people who want animals, including zoos; and he finds them and ships them from one place to another. Mr. Gonzalez advised as for diseases, that is controlled by the Florida Freshwater Fish and Game Commission; when he gets animals they are inoculated and disease free; and he is sure Dr. Ward would share the opinion that is the way to buy monkeys because monkeys are more susceptible to catching diseases from humans than humans are from monkeys. He stated as to loss of property value, Mr. Schrader stated his opinion but that was based on the monkeys; he never indicated that any realtor or appraiser gave him anything on a real value loss of what he would realize from the sale of his property if there was a caracal next door; and in order for the Board to make a decision, it has to decide based upon what is reasonable and related to the request, and whether the request is in any way harmful to the neighbors. He stated there has not been competent substantial evidence that the CUP would harm the neighbors, be obnoxious to them, or damage them in any way other than what they may suspect might happen to them; there has been no real evidence because they have never seen the cat; it is a reclusive animal; and he would request that Mr. Crawford discuss with the Board any limitations that he would be willing to make regarding the number of monkeys that he might limit himself to based upon the granting of this CUP. Mr. Gonzalez advised Mr. Crawford will be obligated to comply with noise and other Ordinances promulgated by Brevard County; and whether the County approves or disapproves this CUP, under the auspices of Code Enforcement, he will bring his pet monkeys back; it will be approximately ten monkeys; and he indicated Mr. Crawford would be willing to limit that number to 12, most of which would be no larger than Pokey, and the largest would be 12 pounds. He stated people were concerned about apes, chimpanzees, baboons, gorillas and commercial activity at the Crawfords residence; and the Board can direct any questions to him or Dr. Ward regarding control by Florida Freshwater Fish and Game Commission of any primates he may or may not have and Mr. Crawford's ability to care for those animals.

Commissioner O'Brien stated this is not about the cat; the cat is beautiful, cute, declawed, and in the house; and the daughter may be a wonderful person, but this whole thing is about wild animals. He stated he read that the applicant agreed to limit the wild animals on the property to seven monkeys, one caracal and one serval; now he wants 12 monkeys; and in 1998 there were 42 primates and 27 carnivores for a total of 69 wild animals on the property. Mr. Crawford stated it was on his property in Palm Bay; he took them to the wildlife park in New Smyrna, Ashby Acres; and about two weeks ago he sold the animals. Mr. Gonzalez presented a copy of the contract showing all the animals that were sold. Commissioner O'Brien expressed concern about losing focus of the application; and stated it is not about a cute cat. Mr. Crawford stated he would like to focus on the cat. Commissioner O'Brien stated the focus is on the primates.

Commissioner Voltz stated they are allowed to have as many monkeys as they want, so the Board cannot focus on the primates. Commissioner O'Brien stated the Board can focus on the primates for safety and health matters that affect Brevard County. Commissioner Voltz advised what Mr. Crawford is saying is if the Board lets him have his cat, he would promise to limit the number of monkeys; and it is like a deal and not that he has to do it. Commissioner O'Brien stated Item 6 of the packet says the applicants have agreed to limit the wild animals to seven monkeys. Mr. Gonzalez stated they had several discussions with Planning and Zoning, but he is not sure who made that representation because when they went to the P&Z Board they discussed limiting primates; and Mr. Crawford is willing to do that.

Chairman Scarborough inquired if the Board wants to change the number of primates allowed on a piece of property, would it have an ability to affect those persons who already have animals on their properties to the extent that those animals would have to be removed; with Ms. Bentley responding that is a good question, but she would need to research it. Chairman Scarborough stated if the Board is going to do an ordinance, there is no reason to feel compelled to cut a deal with Mr. Crawford if the effect of the ordinance applies to everyone and Mr. Crawford has to comply; that would remove the deal concept or putting 300 monkeys on the property; and that is not the way he wants to handle zoning matters. He noted Mr. Crawford can say if he does not get to keep the cat, he can have a monkey farm on his property and there is nothing the Board can do about it; and that is not the way to do business in Brevard County. Ms. Bentley advised she has not seen any cases that treated pets as protected property rights under the Constitution. Chairman Scarborough inquired if the Board can enact an ordinance that would be retroactive and people with too many primates would have to comply; with Ms. Bentley responding that is a possibility, but she wants to do a nationwide search and see if anyone has done that. Chairman Scarborough stated the County restricts the number of cats and dogs, but monkeys, which are more exotic than cats and dogs are not limited. Dr. Ward advised the County only restricts the number of dogs and does not restrict cats. Chairman Scarborough inquired if people can have an unlimited number of cats on their property; with Dr. Ward responding yes. Chairman Scarborough stated that is another issue the Board needs to look at. Commissioner O'Brien suggested birds be included. Chairman Scarborough stated Commissioner Voltz suggested tabling the item, but if the Board can enact an ordinance dealing with primates, it can extract the primates from this discussion and deal with the feline. Ms. Bentley advised zoning is not the only tool when it comes to primates, as there are other regulations. Chairman Scarborough stated he likes zoning to limit the numbers because there are too many questions with health and safety issues. Commissioner Carlson inquired if the Board can limit the number of monkeys temporarily until it devises an ordinance that works; with Chairman Scarborough responding it needs an agreement with Mr. Crawford to limit the number of monkeys to seven, or twelve, or something. He stated if staff could restrict the number of primates based on the size of property and zoning classification; and the larger sizes could have a different amount of monkeys, he would feel better about it.

Commissioner Higgs advised the issue is what the Board sets as precedent regarding wild animals; based on the testimony she heard on caracals, the Board cannot insure the safety of people regarding rabies; and that is a fundamental health issue and a first priority. She stated other people may ask the same question about wild animals, so the Board has to be consistent. She stated the question is if she can vote in favor of a CUP that could potentially set a precedent for Brevard County on how it deals with wild animals; the issue is fairly new; there is a real move in a lot of areas to begin having pets in the wild animal category; so based on the testimony she heard tonight, she cannot feel safe with this particular wild animal and cannot move to approve the CUP.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to deny Item 8 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Commissioner Voltz stated the Board still has to deal with the primates issue. Chairman Scarborough recommended Dr. Ward work with Mr. Enos and return to the Board with recommendations. He stated beyond primates, staff should look at other things that have unlimited numbers; he is concerned about the great number of cages outside which could be a real health problem with animals defecating and urinating; and that is probably not the best thing. Dr. Ward stated there are a lot of exotic animals in Brevard County; they discovered that in about every disaster they get involved in; and in some areas there are 30 different species they did not expect to see that someone was keeping in their backyard.

Chairman Scarborough stated there may be certain areas that are large enough and far enough removed from residential areas that could be defined to give favorable consideration if it does not adversely affect anyone and is not adversely affecting the environment; staff may want to create some criteria; but the fact that someone can have an unlimited number of monkeys seems odd. Dr. Ward stated to clarify the discussion on gorillas and chimpanzees, those are Class I primates and are not allowed to be owned by private individuals. Chairman Scarborough recommended staff return with a memo and a proposed ordinance on what the Board needs to say and do.

Commissioner Carlson advised some people said there was a lot of smell and noise from the monkeys; that is gone and is not a current problem; but cleanliness of the area may still be a problem; and inquired if there are still bad smells, would Code Enforcement deal with that; with Dr. Ward responding if Commissioner Carlson is referring to Mr. Crawford's property, he was out there last week and did not perceive any odors.

Commissioner O'Brien stated the issue of number of wild animals should be looked at globally; and inquired if the cats were Class 3 animals; with Mr. Enos responding the tamarin is a Class 3 animal. Commissioner O'Brien recommended staff look at Class 2 animals as well as regulations to prevent people from having a menagerie or zoo on their property. He stated his concern with this request is that a business may be operating out of a home with outdoor storage of goods they are selling and buying.

Chairman Scarborough stated there could be places in Brevard County that are agricultural in nature and large enough so it would not adversely affect anyone around them if they had wild animals; a residential area is not the place to have animal breeding; but there could miles of farmland where nobody would be affected. Commissioner O'Brien noted when the proposed ordinance comes back it could say only on farmlands with no domicile located within a given distance such as a mile, 1,500 feet, or something of that nature. Commissioner Higgs stated the parcel size and surrounding zoning are critical issues. Chairman Scarborough stated cages in close proximity to residential property is a concern because most people do not expect to see their neighbors having that situation next door. Commissioner Higgs stated the big issue is the potential health hazard of exotic animals that cannot be inoculated based on testimony; and the critical issue the Board has to address with any ordinance it drafts is how to protect the general public from wild animals that cannot be safely inoculated. Commissioner O'Brien recommended the proposed ordinance address numbers of cats, how many Class III animals a person is allowed to have, and where the parcel should be located, and straighten this situation out because no one wants to have a commercial zoo operation next to their house; and one house in the area of Mr. Crawford's home is worth $1.3 million.

Item 9. (Z9910401) Hardee S. Henderson, III's request for change from RU-1-9 to RP on 0.55 acre located on the east side of U.S. 1, north of Coquina Ridge Drive, which was recommended for approval by the P&Z Board.

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

Item 10. (Z9910402) Leonard Caplin's request for change from TR-3 to RRMH-1 on 14.01? acres located on the north side of White Road, east of Harlock Road which was recommended for approval by the P&Z Board.

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

Item 11. (Z9910403) V. F. W. Satellite Post #8191's request for MUD boundary expansion and change from RU-1-7 and BU-1 to all BU-1 on 2.9? acres located on the west side of U.S. 1, south of Elm Drive, which was approved by the LPA and P&Z Board.

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

Item 12. (Z9910404) Brevard County Board of County Commissioners, on its own motion, authorized administrative rezoning of property owned by Southeast Petro, on which a development order had been submitted initiating a consideration of a change in zoning classification from IU to BU-2 on 1.22 acres located on the north side of SR 520, east of I-95, which was recommended for approval by the P&Z Board.

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

Item 13. (Z9910501) Guy E. Boroff's request for change from GU to AU on 5.22 acres located on the north side of Willowbrook Street, west of Babcock Street, which was recommended for approval by the P&Z Board.

Motion by Commissioner Voltz, seconded by Commissioner O'Brien, to approve Item 13 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 14. (Z9910502) P. F. and Pamela S. Nohrr and Lauren B. and Betty O. Koonin's request for CUP for additional building height on 2.10 acres located on the east side of SR A1A north of Atlantic Avenue, was tabled to December 2, 1999 earlier in the meeting.

PUBLIC HEARING, RE: PORT ST. JOHN DEPENDENT SPECIAL DISTRICT ADVISORY BOARD RECOMMENDATIONS OF OCTOBER 6, 1999

Chairman Scarborough called for the public hearing to consider the recommendations of the Port St. John Dependent Special District Advisory Board, made at is October 6, 1999 meeting as follows:

Item 1. (PSJ90901) Ted L. Wade and Jacqueline L. Wade's request for CUP for alcoholic beverages for on-premises consumption in BU-1 zoning classification on 0.96 acre located on the southwest corner of Delespine Road and U.S. 1, which was recommended for approval by the Port St. John Board for beer and wine only, provided the applicant submits all required information by October 20, 1999.

Norman Johnson advised Ted Wade is the landlord; he has lived in Port St. John for 22 years, and owns a restaurant; the first case heard today gave the Clerk a copy of his menu in support of beer and wine permit; however, he does not have a beer and wine permit, and is here to request one today. He stated he built a dining room on his restaurant and did not want beer and wine, but people said he needed it and 80% of the people who dine out like to have a glass of beer or wine with their meals. He read a letter from Dr. Chandler of the First United Methodist Church, as follows: "I stand in favor of the CUP for Ted Wade and Norman Johnson. The restaurant has a good reputation in Port St. John. To my knowledge the police has never been called to Normanno's for anything. I ask you grant the CUP. The church has no negative response in regard to this request." Mr. Johnson stated his request was approved by the Port St. John Board except for two people who said nay; one person was here today, Ms. Rupe; and she wrote the following: "I was opposed to the CUP for beer and wine due to traffic concerns and safety issues. I have since taken care of that through traffic management. I have no objection to the CUP." He stated he needs to stay alive and requested the Board approve the CUP for beer and wine.

Chairman Scarborough inquired if this request meets the new CUP requirements; with Mr. Enos responding they reviewed it against the new CUP requirements and the application was complete and had no problems. Chairman Scarborough stated there were two other requests for beer and wine CUP's before the Board; one raised questions on propensity for disturbances and not being a good neighbor; and that is not part of the CUP process. He stated Commissioner O'Brien brought up another one that was denied because of the close proximity to schools and things; and inquired if there is anything that would not be compatible.

Commissioner O'Brien stated he reviewed this request; there are no schools, churches, or libraries nearby; the restaurant is on U.S. 1 and has no history of criminal activities, fights, stabbings, or shootings; and sometimes a CUP is good, depending on where it is located and who gets it.

Chairman Scarborough inquired if a criminal activity analysis was done on this restaurant; with Mr. Enos responding no, the only one they did in Port St. John was Kelsey's. Mr. Enos stated the business faces U.S. 1; residents will access residential streets and ultimately to Fay Boulevard; the business is in a Plaza that faces U.S. 1 and there is another building to the west which has access to Delespine Street; so there are a series of commercial operations between this establishment and the residential uses to the west.

Commissioner Higgs advised the Board heard the first item several times; there were citizens complaining about the character of the establishment and testimony from an accumulation of facts on the establishment that exists in other places; and this application has contrary testimony from speakers who testified negatively on the first item that it would not have a negative impact.

Chairman Scarborough recommended analyses be done for CUP's for alcoholic beverages regarding proximity to schools and things and the propensity to be a place where there would be a lot of disturbances and criminal behavior; those things should be a part of the CUP analysis; and since the Board has not heard anything to the contrary tonight, if someone would make a motion, he could support this request.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to approve Item 1 as recommended by the Port St. John Dependent Special District Advisory Board. Motion carried and ordered unanimously.

EASEMENT FROM CPO DEVELOPMENT, INC., RE: DEDICATION OF PUBLIC BEACH ACCESS IN INDIAN HARBOUR BEACH AREA

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to table the Easement from CPO Development, Inc. for a public beach access in Indian Harbour Beach area until December 2, 1999. Motion carried and ordered unanimously.

AMENDMENT TO WETLAND MITIGATION, RE: POST COMMONS SITE PLAN #98-12-005

Commissioner Carlson advised the mitigation proposal for Post Commons on Wickham Road prepared by BSE Consultants had some difficulties with the City of Melbourne in terms of taking loads of dirt off the site; BSE changed the plan but it did not come back to the Board; and Hassan Kamal with BSE has come up with a new plan. She recommended Randy Martin, representing the Parkway Meadows residents, speak first.

Randy Martin advised the situation has been ongoing for approximately seven months; the item before the Board is a second revision; and although it is an improvement of the first revision, it is not what they agreed upon at the meeting held at his house. He stated the residents do not agree with the structure; what dismays them is that BSE submitted a revised site plan to the Board which is different from what they gave him to take to the homeowners; and they are not being unreasonable, but would like to see a few minimum standards met because it will affect them for a lifetime. Mr. Martin requested the initial berm structure be 125 feet from their property line, and any secondary berms be kept at or below their property elevations; and noted they strongly object to the site plan that was submitted to the Board.

Commissioner Carlson inquired if the consultants have a picture of the original plan; with Hassan Kamal responding he did not bring it with him, but he has an 11"x17" drawing he can give to the Board. Commissioner Carlson requested Mr. Kamal explain the original intent.

Hassan Kamal with BSE Consultants, advised the first plan had a lake area that abutted the rear of half a dozen or a dozen homes along Parkway Meadows; there were some issues with the City of Melbourne not allowing removal of dirt from the site to move to the Post Commons Shopping Center site, so they prepared another proposal, submitted it to the County, and ran into opposition from the residents. He stated the dirt that would have been generated from scraping the uplands, constructing the mitigation area, and getting down to the right elevation, was going to be used to create landscape berms adjacent to the homes; and the residents of Parkway Meadows were concerned about the drainage and did not like the way it looked. He stated they met with the residents of Parkway Meadows at Mr. Martin's home, and listened to their concerns; what they got out of that meeting was that they did not want the landscape berm against the back of their houses; they liked the initial concept where there was a gentle slope away from their rear lots down to the lake bank; and they requested relocation of the berm farther away from their houses, which is basically what BSE has done. Mr. Kamal explained a drawing showing the rear lot lines, wetland mitigation area, slopes, wetland plantings, secondary berm, and larger berm. He stated the 25-foot area slopes very gently to the mitigation area and will be grassed; the secondary berm is still there and will be planted with cord grass; they are discussing plantings for the larger berm area with County Staff; and it will be a variety of native plants that are acceptable to everyone. He stated the closest point of the berm to the rear lots of Parkway Meadows is 125 feet which is equivalent to a whole lot; the elevations at the rear of their lots range from 33-1/2 to 34-1/2 feet; they proposed the very top of the berm to be 140 to 150 feet away from the lots with maximum elevation of 36 feet; so it would be 1-1/2 to 2-1/2 feet above the back of their yards which are 125 to 150 feet away which is not that much difference. He stated the plantings they propose are mostly ground cover that will range from 5 inches to 36 inches; and they tried to listen to what the residents wanted, and moved the berm as far away as possible from the back of their lots.

Commissioner Carlson inquired why the residents received a different copy of the plan than the Board did; with Mr. Kamal responding the difference is very slight and was a drafting error on their part; the only difference is that the cross section of the secondary berm is labeled 30 feet on the plan submitted to the County, and the plan given to Mr. Martin is labeled five feet; and Mr. Martin pointed that out to him. He stated the location of facilities never changed; they are exactly as shown on the plan Mr. Martin has; and it did not change the location of the berm relative to Mr. Martin's property line. He noted it was a drafting error on their part and he takes full responsibility for it. Commissioner Carlson stated when the Board originally passed the mitigation project for Post Commons, there was supposed to have been a net benefit; the developer provided some benefit by restoring some areas, taking out exotics, and putting in conservation; but the main mitigation value was flood storage. She stated they had a retention pond originally, but were not able to go through with it because the City opposed taking out loads of dirt; and Drainage and Surface Water Director Ron Jones has been in touch with the Melbourne City Manager; and there probably will not be a problem bringing out additional loads to get rid of the berm area. She inquired if BSE renewed its permit with the City; with Mr. Kamal responding no, but they have been keeping the City updated as they progress. He stated they had a significant amount of rain over the past 30 to 60 days and were not able to haul out dirt, so they let the City know they stopped hauling and kept track of the number of trips made and the days they hauled. He stated the City asked them to request a permit extension and to give them an accounting of the number of days they have hauled and the number of trips so the City can keep track of it and ensure they do not exceed what is currently permitted. Commissioner Carlson inquired how many trips have been made from the site; with Mr. Kamal responding 110 trips which would be equivalent to 2,200 cubic yards of dirt; and they have an additional 140 trips remaining on the permit. Commissioner Carlson advised she would like to get rid of the berm area and see a flood storage there for future benefit; it should not be an issue since the developer can extend the permit and get the dirt out; and that will help the Parkway Meadows homeowners considerably. She stated she will table the item, with the consultant being aware she is interested in having additional loads taken out to remove the berm area; and recommended they talk to Natural Resources and Surface Water Improvements Departments to find out any other details. She inquired if BSE has an environmental consultant on board; with Mr. Kamal responding yes. Commissioner Carlson inquired if he reviewed or designed the plan; with Mr. Kamal responding she did. Commissioner Carlson stated she was not aware of that, and when she spoke with Debbie Coles of the Natural Resources Management Department, she was not comfortable with the placement of the wetland species and viability of them; however, Ms. Coles later called her and told her BSE had an environmental consultant and that things were okay. She stated her concern is how viable can they make the wetland area; and she would like the developer to work on it a little more and come back to the Board with a better plan. Mr. Kamal inquired if the direction is no berming and no upland elevations in that area; with Commissioner Carlson responding the original plan did not have berming and had a pond and the wetland restored area with a few islands; but that changed because the City's intent is to take out as much dirt as is brought in. Mr. Kamal stated they received permission from the City that as they bring muck in they can load trucks to take dirt out; and that is how the 250 truckloads were achieved. He pointed at an area on the drawing and commented the location has always been part of the plan even when the pond was there. Commissioner Carlson stated the only problem is the berms behind the white area where there is no planning identified; the area in the middle and down below; Natural Resources estimates it would be approximately 50 loads; but BSE can do the engineering to find out what that might be. Mr. Kamal stated they will work with staff to look at what those numbers are. Commissioner Carlson stated the grade should be lower so there is no flooding potential.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to table the Amendment to Wetland Mitigation for Post Commons Site Plan #98-12-005 until November 9, 1999. Motion carried and ordered unanimously.

WARRANT LISTS

Upon motion and vote, the meeting adjourned at 9:12 p.m.

ATTEST:

TRUMAN SCARBOROUGH, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

SANDY CRAWFORD, CLERK
(S E A L)