May 6, 2004

The Board of County Commissioners of Brevard County, Florida, met in regular session on May 6, 2004, at 5:30 p.m. in the Government Center Commission Room, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chair Nancy Higgs, Commissioners Truman Scarborough, Ron Pritchard, Susan Carlson, and Jackie Colon, Assistant County Manager Peggy Busacca, and Assistant County Attorney Eden Bentley.

The Invocation was given by Pastor Craig, Lifeline Christian Center, Melbourne, Florida.

Commissioner Jackie Colon led the assembly in the Pledge of Allegiance.

RESOLUTION, RE: CONGRATULATING SHAREN TALBERT

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to adopt Resolution congratulating Sharen Talbert for years of outstanding commitment to the students of Brevard County and extending best wishes for an enjoyable retirement. Motion carried and ordered unanimously. (See page for Resolution No. 04-093.)

REPORT, RE: SCHOOL BOARD COMMENTS REVIEW

Commissioner Pritchard distributed copies of a review of the School Board’s comments made at the Board of County Commissioners May 4, 2004 meeting; and advised he received a request from a constituent to review and comment on issues raised by the School Board Chairman Rich Wilson and Superintendent Dr. Richard DiPatri. He noted a verbatim transcript of that portion of the meeting is also attached with the response from the constituent who wanted the Board to hear what he considers the other side.

The Board acknowledged receipt of review of the comments raised by School Board Chairman Wilson and Superintendent DiPatri at the April 27 and May 4, 2004 Board of County Commissioners meetings from a constituent.

REPORT, RE: HELPING BREVARD TO GROW FORUM

Commissioner Carlson advised on May 10, 2004, people will have an opportunity to be a part of Helping Brevard to Grow in a manner that respects all that is special about the community. She stated Brevard Tomorrow and members of the Land Use and Growth Team invited the Board to attend a community forum and participate in a unique collaboration; members of the Land Use and Growth Team will present “Getting to Smart Growth in Brevard County”, which is a strategy to incorporate sustainable growth management principles in the Countywide planning efforts. She read the invitation which said, “It is important that city and county planners, conservationists, environmentalists, and builders and developers be adequately represented to insure quality balanced input. You have been selected as an important contributor to this process.” She stated the forum will be held in the Government Center Florida Room and will be televised; so anyone interested in participating should attend it.

PUBLIC HEARING, RE: ZONING RECOMMENDATIONS OF APRIL 12, 2004

Chair Higgs called for the public hearing to consider the recommendations of the Planning and Zoning (P&Z) Board, made at its public hearing on April 12, 2004; and requested staff start with the items that have been requested for tabling so the public understands what items will not be heard tonight.

Zoning Manager Rick Enos advised Item IV.B.5. Laguna Estates, LLC’s request for CUP for residential/recreational marina in RU-2-10(6) and BU-1 zones on 7.75 acres located on the east side of U.S. 1, south of Viera Boulevard, has been recommended for tabling by the P&Z Board to its May 10, 2004 meeting and the Board of County Commissioners May 20, 2004 meeting.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to table Item IV.B.5. as recommended by the P&Z Board. Motion carried and ordered unanimously.

Mr. Enos advised Item IV.B.7. Carol Flack, Guy Hendricks, III, Barbara Lee Hendricks, Mary Carter f/k/a Mary Beth Hendricks, Teresa Irene Hendricks, and Christine Anne Hendricks’ request for change from AU and RU-1-7 to RU-1-13 on 17.33 acres located on the northeast corner of Indiana Avenue and Seminole Boulevard, was requested for tabling by the representatives of the applicants; however, it was received late so it is not automatic. He noted the representatives are here to describe their request.

Chair Higgs inquired if the Board wants to hear from the applicants; with Commissioner Colon responding it should, and also from Doug Padgett. She stated she has no problem with the request for tabling and is pleased there is good communication with the community, which is the only way to solve the issues.

Motion by Commissioner Colon, seconded by Commissioner Pritchard, to table Item IV.B.7. until August 5, 2004. Motion carried and ordered unanimously.

Chair Higgs advised of the procedure for addressing the Board and continued the public hearing as follows:

Item IV.B.1. (Z0404301) Theo Adkins' request for change from RR-1 to AU on 4.19 acres located on the south side of Valkaria Road, east of Rosewood Avenue, which was recommended for approval by the P&Z Board.

Marcelle Kinney of Valkaria, representing the applicant, advised they are requesting rezoning from RR-1 to AU; and explained a schematic of the property in the middle of Valkaria, containing 4.19 acres. She stated originally the land was zoned AU as is virtually everything in Valkaria; and she received letters from most of her neighbors saying their properties are AU and they do not mind her property being changed to AU. She stated originally the land was zoned AU, but the landowner who had the house before them wanted to put a home for his son in the back so he established a flag lot and rezoned it to RR-1 from AU; and they are not interested in that. She stated they have difficult neighbors who complain because they have two chickens and a turkey; so they have a Code Enforcement violation on that basis; and in order to keep the fowl, they need to have AU zoning because RR-1 only allows one bird. She stated their chickens are also hatching right now; and she wants her son to be able to have the chicks next week for his education. She stated that is the situation and the argument; and named six neighbors who provided letters in support of the rezoning.

Chair Higgs advised Ms. Kinney she can reserve some time to rebut at the end.

Curt Lorenc of Valkaria advised he owns a residence 50 feet from the applicant’s property; and presented handouts to the Board, but not the Clerk. He stated (1), the reason for the rezoning is for agricultural pursuits; however, there was an extensive Code Enforcement case filed against the applicant. He stated there were many commercial vehicles, backhoes, large tractors, trailers, land clearings without permits, digging in the County right-of-way, and other violations as listed on the handout he provided. He stated staff recommended the applicant could get out of some of the Code violations by rezoning from RR-1 to AU; that will allow more than one chicken, but is not the real focus; the focus is the heavy equipment; and there are many businesses that seem to be run out of the property. He stated document (2) is the Code Enforcement complaint computer printout; it is very extensive; and very little has been corrected to date. He noted document (3) is the web page of Marcelle Kinney’s property and the business address is 2055 Valkaria Road; it is the residence; and the second page identifies the clients and customers she has, including AT&T and BellSouth. He stated that type of business activity is not allowed in AU or RR-1. Mr. Lorenc presented pictures to the Board of trailers on the property; and stated it seems to be a trailer park with people staying there six months of the year. He stated they also keep business hours and seems like they are going back and forth to work. He presented another picture of commercial equipment, backhoe and large tractors; stated they are all commercial grade for a contractor; and it appears to be a contracting business where the equipment is being kept. He stated trailers for hauling the heavy equipment is being stored on the property; and that type of activity is not allowed in AU. He stated the last picture is the digging in the County right-of-way and making a mess out there without a permit. He stated the Code Enforcement violations have not been addressed in six months; the applicant is trying to rezone the property so he does not have to clean it up and be in conformance with County rules; and requested the Board not approve it.

Janis Walters of Valkaria advised the request for rezoning stems from Code violations; and because of comments from various staff members, the applicant may be laboring under the misapprehension that a zoning change from RR-1 to AU will cure those violations. She stated the Code Enforcement case file indicates enforcement has been held in abeyance until the zoning change is complete; however, the only gain in curing his ongoing violations would be the ability to keep chickens. Ms. Walters stated AU zoning classification does not permit multiple recreational vehicles stored in the open or heavy equipment; and presented sections of the Code to the Board and read portions of Section 62-2117, Parking, Locating, and Storing Recreational Vehicles, Recreational Equipment, Commercial Vehicles, and Heavy Equipment, Cargo Trailers, Utility Trailers, and Open Flatbed Trailers, Subsection (b), “Recreational vehicles and recreational equipment may be parked, located, or stored at developed single-family or multifamily residential properties, not on vacant residential properties, under the following conditions. Subsection (2)c. No more than one of which is visible anywhere on the lot if located in either an unclosed carport, a rear or side yard if not completely screened by or exceeds the height of an opaque visual barrier or a driveway area.” She stated the Adkins’ equipment is kept scattered all over the property in plain view. She continued reading Subsection (c), “Motor vehicles, generally commercial motor vehicles, heavy equipment, pickup trucks and vans, cargo trailers, utility trailers, and open flatbed trailers. Subsection (3). Commercial motor vehicles or heavy equipment as defined in this section shall only be permitted to be parked or stored in the BU-2, IU, IU-1, PBP, and PIP zoning classifications,” none of which the applicant is requesting, “or as set forth in Subsection c.(5) of this section. Commercial motor vehicles or heavy equipment of an agricultural nature which is accessory to a primary agricultural use shall be allowed to be parked or stored in the GU, AU, AGR, ARR, and PA zoning classifications.” She stated there is no primary agricultural use on the Adkins’ property; to the contrary, it is registered with the National Wildlife Federation as a backyard wildlife habitat; and the signs are visible in the upper left of the picture. She stated most of the heavy equipment on the Adkins’ property is not suited for agricultural use; and backhoes and box blades are used primarily for roadwork. She continued reading from the Code, “Equipment which is necessary to maintain privately maintained unpaved roads or access easements and which is not otherwise used for offsite commercial purposes shall also be allowed to be parked or stored on lots within areas defined in Section 62-1334.5"; and she looked it up and found that it only applies to ARR zoning classification for areas with specific characteristics. She stated the Adkins’ property does not qualify; if there has been some arrangement with Code Enforcement or any other County Department to consider existing violations cured with the zoning change, she requests the Board consider this her objection to that improper arrangement.

Ms. Kinney advised those are her difficult neighbors; she has not studied the Code in detail; and the first two Code violations from the list of many things are off point in relation to AU zoning. She stated staff has determined, on many trips to her house by Natural Resources, that the trees they cut down are fine; everything they have done is fine when staff came to investigate whether or not they had permits for their wells; so every complaint on the list is frivolous. She stated they complained about the tractors; they have tractors to maintain their property; and she cannot cite the Code and does not have it in front of her, but something in the Code says that they can have tractors. She stated with 4.2 acres, they need tractors to maintain the property, bush hog, grade the driveway, and dig ditches, etc.; the land is agricultural; and her understanding from staff is she is allowed to have tractors in AU to maintain the land. She stated she has not gotten into the details of the Code, and maybe that is not right or she has been advised wrongly, but that is one of the reasons they are requesting the AU zoning. She noted they should be allowed to have tractors under rural residential; the Code says if the tractors are not used for commercial use she could keep them on her property to maintain it; and it specifically allows open flatbed trailers used for maintenance of the property. Ms. Kinney stated she had to go to the manufacturers of all their tractors to get statements for Code Enforcement the equipment was designed for residential use to maintain the property; and they do not have huge machines or a commercial business. She stated she does not have much more to say about that because she has not read the Code in detail; but that is irrelevant. She stated she understands from staff that the rezoning to AU would allow them to keep their chickens and have their tractors; and if that is not correct, it is something they can deal with at another time. She stated that was their motivation; and all the objections are off point.

Commissioner Pritchard advised two issues were presented, Code Enforcement violations, which is not something the Board is considering at this time, and rezoning; and inquired if under AU they can keep tractors and trailers in open view as well as the other things shown in the photos. Zoning Manager Rick Enos advised the Code says they can keep commercial equipment of an agricultural nature, which supports an agricultural use; so if they are using the tractors to support agricultural use, that is permitted in the AU zoning classification. He stated the purpose of this hearing is to consider the AU classification; it is inappropriate to get into other issues of Section 62-2117 as those are Code Enforcement issues; so the Board should consider only the rezoning issue. Commissioner Pritchard stated he agrees.

Commissioner Carlson stated from the staff comments, the rezoning seems to be compatible; the applicant has letters with no concerns other than two neighbors who are here; and those deal primarily with Code Enforcement issues. She inquired if AU will get rid of some of the Code issues; with Mr. Enos responding it will alleviate the use problems they have, mostly the farm animals and fowl. Commissioner Carlson stated they are trying to at least remedy some things and bringing the property together, so she does not see an issue with it unless Commissioner Higgs has a specific issue.

Chair Higgs stated it is her understanding that if there are Code violations currently active and being investigated, they will continue to be investigated until they are closed or remedied, so that would not be an issue that would be dropped just because of the rezoning, although one or two issues would no longer be applicable under AU. She inquired if that is correct; with Assistant County Manager Peggy Busacca responding that is correct. Chair Higgs stated the map shows AU in the area; so it would be appropriate zoning; and recommended approval.

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

Item IV.B.2. (Z0404302) Evalena T. and John Johnson (Timothy Howell)’s request for change from GU to AU on 6.5 acres located on the west side of Fleming Grant Road, south of Thompson Road, which was recommended for approval by the P&Z Board.

Tim Howell of Micco stated he would like to get a rezoning to AU; both sides of the property on the south are AU; it conforms to the zoning in the area; and that is what he is looking for.

Chair Higgs advised she received one call on the item supporting the change from the homeowners in Micco; there is substantial AU to the south; and she has no objections.

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

Item IV.B.3. (Z0404303) Removed from the Agenda.

Item IV.B.4. (Z0404304) Richard H. Stottler, Jr., Trustee and Beachwoods Property Owners Association, Inc. (Rochelle Lawandales)’s request for amendment to the PDP in a PUD on 7.2 acres located on the northwest corner of River Woods Boulevard and Highway A1A, and a portion located directed on the Indian River, which was recommended for approval by the P&Z Board.

Chair Higgs advised she wants to put on the record that over the past several years she had conversations with the homeowners in the development and representatives of the landowner; and she had a conversation today with Ms. Lawandales. She presented a note to the Clerk for the record. Commissioner Pritchard advised he also had conversations with Ms. Lawandales. Commissioner Carlson commented she thinks all the Commissioners have had conversations with Ms. Lawandales.

Rochelle Lawandales, representing Beachwoods Property Owners Association, Inc., advised the request is to amend a PUD that has been around for a long time to amend the commercial tract and make it residential then transfer the unused units from Stage 7 in the back to that commercial stage and eliminate the remaining units in the approved PDP. She stated it is a simple item; they are asking for approval to change the commercial to residential, move 18 units, and eliminate 66 units. She stated the project can meet all site plan and Code requirements for open space, setbacks, retention, parking, etc.; it will result in roughly 18 two-story townhouse units that will be housed in three buildings of six units each; and prior to any construction occurring, they will have to go through formal site plan review, building permit review, and other permitting processes. Ms. Lawandales stated the overwhelming majority of the Beachwoods homeowners, there are over 660 of them, voted in favor of the amendment to the PDP; and there are a few residents here today, many who are on the board of directors and are prepared to speak in favor of the project. She stated the P&Z Board recommended approval; and requested the Board’s approval to amend the PDP.

Gene Phillips, President of Beachwoods Property Owners Association, advised he has been the President for the past three years; the change to residential relieves them of the threat of commercial at their entrance and a lot of traffic and things of that nature; and he has worked with Commissioner Higgs and thanks her for her help and guidance over the past three years. He noted he is from Michigan and did not understand a lot of Florida laws; and again expressed his appreciation to the Board for doing a tremendous job under tremendous pressure.

Ivan Kusinitz advised he has been a resident of Beachwoods for more than 20 years and served for many years as director and first president of the Association at the time of turnover and after that, so he is very familiar with the community; and he is here to support the proposal to rezone the north commercial property from BU-1 to residential. He stated as a long-time resident, he found the possibility of an undesirable commercial enterprise located on the 1.86 acres extremely distressing; in the early 1980’s, there was a possibility of a sewage treatment plant; and in the late 1980’s, a Circle K with gas pumps was proposed. He stated as recently as 1996, Site Plan 96-02-011 permitted the building of a convenience store with gas pumps and unspecified retail businesses; and compared to those uses and the current state of the parcel as a vacant lot overgrown with pepper trees and other vegetation, 18 residential units as part of their community is quite appealing. Mr. Kusinitz advised the board of directors conducted a referendum to determine the will of its members; and the results of the balloting was no surprise to him, as many of the neighbors felt as he did over the years. He stated those who patiently waited knew the change of use for the north commercial property would maintain or increase their property values overwhelmingly and voted to approve the development of residential units. He stated there are 375 units in Beachwoods with approximately 662 residents; 375 votes were eligible; and although they only needed 188 yes votes to approve the proposal, 239 owners voted yes, which is more than 63% of those eligible to vote. He stated of those who voted, more than 82% voted in favor of the proposal; and on behalf of his neighbors in Beachwoods, he urges the Board to approve the change, which would lead to a community in which the Board and County can be proud of.

Hamdy Bechir of Beachwoods advised he is a registered professional engineer in the State of Florida retired and a professional environmental engineer also retired; and he has been a homeowner in Beachwoods since 1989 and full-time resident since 1995 and love it. He stated he strongly supports the rezoning of the commercial parcel from BU-1 to residential since it represents a win/win/win situation for the environment, County, and Beachwoods. He stated the residential units will connect to the sanitary sewer system, which will eliminate, however remote, the probability of a spill or leak from commercial uses contaminating the groundwater aquifer. He stated the sanitary sewer system serving River Woods Boulevard has more than sufficient capacity to handle the proposed additional 18 residential units; his review of the system’s critical sections shows peak flow of 56,000, 105,000, 217,000, and 350,000 gallons per day; and the capacity of the line flowing half full are 230,000 as compared to 56,000, 500,000 as compared to 105,000, 500,000 as compared to 217,000, and 1,300,000 as compared to 350,000. Mr. Bechir stated the Board may have received some correspondence that the system would be overloaded; that is not true; residential development will be compatible to Beachwoods and enhance property values of all homes within Beachwoods; and considering their homes are their biggest asset, residential development will protect and enhance the value of that asset. He stated the majority of Beachwood residents are past the child-rearing age, as evidenced by the fact that the average number of school children is .11 per Beachwood family; every nine homeowners contribute one student to the school system; therefore, the 18 units will only represent an additional two school children in the school system. He stated for those and many favorable conditions he enumerated in his submission, he strongly supports the request.

David Finley advised he lives on the property directly adjacent to the proposed development; everybody is talking about how everything is going to benefit Beachwoods; but no one addressed the surrounding residential neighborhoods. He stated he represents Allan Lane Subdivision, which is directly north of Beachwoods; he spoke to many people in the surrounding area; he has lived in his house over 30 years; and most residents have been there for at least that long. He stated everybody he talked to in their Homeowners Association strongly disagrees with the proposed plan; they feel it is going to be a huge impact to the already dense nature of Beachwoods; that is the only developable portion of Beachwoods that is left; and explained a drawing of the area showing the density of Beachwoods, indicating it is extremely full. Mr. Finley stated the courtesy notice is erroneous and misleading in nature; it stated the proposed change will be on 7.2 acres; there are not 7.2 acres of vacant property in Beachwoods; and the proposed building site is only 1.8 acres, which is where they got the density of 18 units. He stated everyone he talked to, once he explained the Beachwoods building plan, was furious; they assumed Beachwoods was going to spread the 18 units across the whole development; Beachwoods continues to say they are going to give back all the units from the original PUD, which has already been built on; and inquired if they are proposing to tear down the buildings to build the 100 plus units they have. He noted that is another misleading statement to the community, so he requests the change be denied or an amended courtesy notice be sent to the public in the area to clearly state it is not on 7.2 acres and let them respond accordingly. He stated all the residents who have lived there as long as they have object to have more property jammed into Beachwoods, which is already a problem in their area; there is a high crime rate, and thefts; and a lot of the children they identified or caught were all from Beachwoods. He stated every day he picks up trash thrown from the Beachwood side all along their property, which goes along the whole parcel and has a concrete walkway that they refer to as a nature walk and green space, which he does not understand. Mr. Finley stated he has not talked to any of the residents who are not part of Beachwoods who are in favor of creating more dense building in the area and having all those homes; and they would rather take their chances with the commercial site. He stated he has been there since 1969 and has gone through the proposed sewer treatment plant and gas station; they were both denied because their well is within 75 feet of Beachwoods; so he does not see where that is an issue. He stated he does not believe they can do that anyway; there are already two convenience stores and gas stations within a mile of the property; and he does not understand how they can incorporate another gas station in their area within a mile of Beachwoods. He requested the Board not approve the change or send out a notice and give the public a chance to understand the impact of what it is going to do to their area.

Jerry Neiswanger of Beachwoods advised he has been a resident of Beachwoods for 12 years and supports the change; he served on the security committee, most recently during the last fiscal year; Beachwoods is a gated community; they have employed a security service; they have security cameras; and it is a very secure development. He stated if the Board were to check the police blotters, it would find that Beachwoods does not create criminal activity in the area; and one of the problems stated was a concern about the over use of amenities. He stated they have two pools and another pool across the Causeway into the Atlantic Ocean; and they have three tennis courts, so they have more than enough amenities. He stated they have queried the people on the overcrowding or potential overcrowding issue; and as a member of the amenities committee, he has not had one individual state he was not able to use any of the amenities because of overcrowded conditions. He stated they do not anticipate the additional 18 units will overcrowd them at all; and urged the Board to approve the change.

Ms. Lawandales advised she would like to clarify a few things for the record; the notice indicated 7.2 acres because the amendment affects Stage 7 as well as the commercial tract; the PUD is approved for ten units per acre; currently the overall density is 9.47 units per acre; and with the amendment and elimination of units and transfer of units, the actual resulting density is further reduced to 8.6 units per acre. She stated there was a site plan approved for a gas station as referenced by Mr. Kusinitz in his comments; the proposed amendment is consistent and compatible with the existing PUD and surrounding area, which is predominantly residential; and it is desired by the Beachwoods community. She stated there will be amenities available for everyone in the complex; the units will be compatible and architecturally pleasing; and they would appreciate the Board’s favorable vote on the request.

Chair Higgs requested Mr. Enos address the notice issue. Mr. Enos advised Ms. Lawandales is correct; the amendment affects two tracts in the PUD, the commercial tract is 1.9 acres and the westernmost tract or Stage 7 is where the unused units are; both parcels total 7.2 acres; and that is why the notice said what it did. He stated it is a post card and cannot contain a lot of information; but it is to make people aware that there is something going on and they can call staff if they need to understand the application better. He reiterated that the notice was correct and covered 7.2 acres.

Commissioner Carlson stated there is the existing zoning with 163 units and 16,000 square feet of commercial; the trip generation detail shows 1,991 trips compared to 722 trips with the proposed change; and inquired if that took into consideration a gas station or something like that; with Mr. Enos responding yes, the 1,991 would include an unspecified commercial building; and since that will be eliminated under the application, the trips would be reduced.

Chair Higgs stated elimination of 66 units decreases impacts on the highway; the entry would not come off A1A, but the side road, which is the entrance to Beachwoods; so it would not add another conflict point on A1A and would reduce traffic. She stated it takes away units from Stage 7 and takes potential incompatibilities with residential uses on all sides of it; so her assessment is it is a positive plan for the Beachwood neighborhood and the rest of the neighborhoods, so she will support the amendment to the PDP, move of 18 units from Stage 7 to the former commercial tract at the entry for townhomes with a maximum height of 35 feet, and elimination of the remaining 66 units from the PUD.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to approve Item IV.B.4., amendment to the PDP to move 18 units from Stage 7 to the former commercial tract with maximum height of 35 feet for townhomes, and elimination of 66 remaining units from the PUD. Motion carried and ordered unanimously.

Item IV.B.5. (Z0404401) Laguna Estates, LLC’s request for CUP for residential/recreational marina in RU-2-10(6) and BU-1 zones on 7.75 acres located on the east side of U.S. 1, south of Viera Boulevard, which was recommended for tabling by the P&Z Board to its May 10, 2004 meeting and Board of County Commissioners May 20, 2004 meeting.

Item IV.B.5. was tabled earlier in the meeting.

Item IV.B.6. (Z0404402). Removed from the Agenda.

Item IV.B.7. (Z0404501) Carol I. Flack, Guy Hendricks, III, Barbara Lee Hendricks, Mary Carter f/k/a Mary Beth Hendricks, Teresa Irene Hendricks, and Christine Anne Hendricks’ request for change from AU and RU-1-7 to RU-1-13 on 17.33 acres located on the northeast corner of Indiana Avenue and Seminole Boulevard, which was recommended for approval by the P&Z Board with a binding development plan limiting development to 39 lots.

Item IV.B.7. was tabled earlier in the meeting.

Item IV.B.8. (Z0404101) Richard Galuppo’s request for change from GU to RRMH-1 on 1.04 acres located on the west side of Satellite Boulevard, north of Terri Lee Lane, which was recommended for approval by the P&Z Board.

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

Item IV.B.9. (Z0404102) Ronald E. and Elizabeth S. Batchelor’s request for change from GU to AU on 2.38 acres located on the west side of Pine Street, north of Cabbage Palm Street, which was recommended for approval by the P&Z Board.

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

Item IV.B.10. (Z0404103) David J. and Barbara A. Wardle’s request for change from AU to SR on 1.87 acres located on the northeast corner of Montgomery Road and U.S. 1, which was recommended for approval by the P&Z Board with a binding development plan limiting development to two residential homesites and $2,800 per home school contribution.

Commissioner Scarborough requested Mr. Enos share his thoughts with the Board. Mr. Enos advised the current zoning is AU; it requires 2.5 acres; the parcel is 1.87 acres; and staff does not believe it is a nonconforming lot of record, so there are no development rights on the property and would require a rezoning of some kind to use the property. He stated SR zoning is requested by the applicant to split it into two parcels; there is not a full two acres so he could not request RR-1 to get two lots; and SR lots are normally half an acre. Mr. Enos advised the lots would be on the average of .93 acre; and the P&Z Board approved it with a binding development plan limiting it to two homesites and $2,800 per home school contribution because the increase goes from zero to two units. He stated there is no SR zoning in the immediate vicinity at this time; and although the SR zoning is consistent with the land use density of two units per acre, the Board would be introducing SR zoning into the area. Commissioner Scarborough stated those are technical issues; and inquired if what Mr. Enos said concerns the Commissioners. No response was heard.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to approve Item IV.B.10 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.B.11. (Z0404104) Jerry C. Lyon, Trustee (Robert K. Fears)’s request for change from BU-1 to BU-2 on 2.159 acres located on the east side of U.S. 1, north of Gloria Avenue, which was recommended for approval by the P&Z Board with a Binding Development Plan requiring a six-foot fence along the east property line.

Commissioner Scarborough advised Robert Fears came to visit him at his request; the P&Z Board suggested Mr. Fears erect a fence; normally a wall is required for these establishments; but directly across from the property is Pinewood Elementary School and Mims/Scottsmoor Library. He stated Mr. Fears’ entrance will be off U.S. 1, but the backside of his property is the entrance to an area that the community takes pride in; and Mr. Fears is willing to augment the existing plant material on the east side of the property similar to and complimentary with plant material around Mims/Scottsmoor Library and Pinewood Elementary School. He stated a fence will add nothing because there is already a wall there; but plant material placed on the east side of the back wall, which will be part of the development, and the wall color similar to the sand color of the library and school would be desirable. He inquired if that is acceptable to Mr. Fears; with Mr. Fears responding affirmatively.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to approve Item IV.B.11. with a Binding Development Plan not requiring a fence, but to augment existing plant material on the east side of the property similar to and complimentary of plants around Mims/Scottsmoor Library and Pinewood Elementary School, placed on the east side of the back wall, and the wall color being similar to the sand color of the Library and School. Motion carried and ordered unanimously.

Item IV.B.12. (Z0404105) Samuel R. and Donna A. Lowery’s request for change from GU to AU on 1.71 acres located on the northeast corner of Date Palm Street and Fishtail Palm Avenue, which was recommended for approval by the P&Z Board.

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

Item IV.B.13. (Z0404106) Andrew P. Donovan (Jewell G. Donovan)’s request for change from AU to RR-1 with Binding Development Plan limiting development to one residential homesite on two acres located on the south side of Pennsylvania Avenue, east of U.S. 1, which was recommended for approval by the P&Z Board with a Binding Development Plan limiting development to one residential homesite.

Pat Donovan advised the request is to rezone the property from AU to RR-1; he spoke the last time about buying the property under the assumption it was a buildable lot; it turns out that it is not; it is approximately 2.3 acres; and at the time of signing he was handed the area to vacate and did not know what that was, and ended up with two acres.

Billy Volner of Mims stated he has lived there 30 years and raised his children in Mims; he owns ten acres adjacent to the subject property; the use of the property was a grapefruit grove planted by Henry Morgan, Sr., who was the County Tax Collector for many years; and it was planted in 1935. He stated it is sad for all of them to see their groves being cut up; he provided Commissioner Scarborough a petition with 11 signatures; he could have gotten more but wanted quality instead of quantity; and he will go through the names later. He stated he also provided Commissioner Scarborough three emails; he objects to the density; what they are seeing is a rubber stamp by the P&Z Board; and they are starting to come together in groups and will object to anyone who attempts to build on less than 2.5 acres. He stated the petition was signed by Dr. James Nichols who spent his lifetime in the area and owns 20-plus acres; Frances Threkeld a long-time worker for the County and owner of 20 acres in the area; Al Wilson, a long-time Brevard Community College professor who owns 30-plus acres; Robert Pennington and builder Dale Pennington who has ten acres; and Bernie Whitten, owner or manager of Fuel Tech, who has over 30 acres and had to buy ten acres to keep land speculators from getting it. Mr. Volner stated he put the petition together in hopes the item would not get passed by the P&Z Board; and he was flabbergasted when it was approved because all the landowners in the area said they did not want anything built on less than 2.5 acres. He stated he provided a chart to Commissioner Scarborough of the way speculators are splitting up the groves; they have a narrow piece of property about 664 feet long and about 60-plus feet wide; and the property abuts the lower five acres of his property, which is under water any time it rains. He noted the only thing he can do on that part of his property is raise hay. He stated over half of the first two rows of the grove is underwater when it rains; the water goes over the ankles; so he does not feel it is a buildable piece of property; and if somebody buys it and tries to build on it that is his problem. He stated he sent a letter to Commissioner Scarborough complaining about the P&Z Board rubber stamping items. He stated there was a person who showed up prior to the meeting and interviewed one of the owners who has lived there only six months; and the person was told to go across the street and talk to him because he was heading up the petition against it, but the person chose not to do that, which he took as personal and considered it nonprofessional of County staff. He stated the Board will have another petition coming forward; they do not like what is happening in their area; and they feel they are being dumped on.

Pat Donovan advised the time to deal with the property would have been when the builder bought the ten-acre parcel and split it up into 2.5-acre parcels; there are already going to be three other houses on the street; and his lot falls just short of 2.5 acres. He stated two-tenths of a mile from his parcel is a subdivision where the houses are side-by-side directly across the street from Mr. Volner; so he does not see how his house can be as invasive as the houses that are concentrated in that area.

Chair Higgs inquired if people obtain approval when they divide property; with Mr. Enos responding not from the County, but the split out was recorded in the Clerk’s Office; and there is no County review of splits from parent parcels. Chair Higgs inquired if the subject parcel is illegal under AU; with Mr. Enos responding yes.

Commissioner Scarborough stated Chair Higgs often cautioned about going to RR-1 from AU; in this instance he can see the significance; if the Board allows RR-1, people will see it on the zoning map and think they can do another RR-1; and all of a sudden it becomes a trend. He stated there is a desire to keep the character of certain neighborhoods; this item is a movement away from the existing zoning and is not compatible even with a binding development plan because it creates RR-1 on the zoning maps. He stated he also listens to what people say; if they want RR-1, then that is okay, but this community is concerned, so he would have to move for denial.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to deny Item IV.B.13. Motion carried and ordered unanimously.

Item IV.B.14. (Z0404201) Susan Angela Kopko (William Grillo)’s request for Small Scale Plan Amendment (04S.6) that proposes to change the Future Land Use Map designation from Neighborhood Commercial to Community Commercial; and change from BU-1-A to BU-1 on 0.29 acre located on the southwest corner of Merritt Avenue and Grove Street, which was recommended for approval by the LPA and P&Z Board.

Commissioner Pritchard advised the property is part of Merritt Grove Subdivision and fronts on Merritt Avenue; the request is to go from BU-1-A to BU-1 so the proposed deli/ice cream restaurant can have a drive-through; and that is primarily the difference. He stated it is in the best interest of the community.

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to approve Item IV.B.14. as recommended by the LPA and P&Z Board; and adopt an Ordinance amending Article III, Chapter 62, of the Code of Ordinances of Brevard County, entitled “The 1988 Comprehensive Plan”, setting forth the Sixth Small Scale Plan Amendment of 2004, 04S.6, to the Future Land Use Map of the Comprehensive Plan; amending Section 62-501 entitled Contents of the Plan; specifically amending Section 62-501, Part XVI(E), entitled the Future Land Use Map Appendix; and provisions, which require amendment to maintain internal consistency with these amendments; providing legal status; providing a severability clause; and providing an effective date. Motion carried and ordered unanimously. (See page for Ordinance No. 04-16.)

Item IV.B.15. (Z0401107) J. J. Parrish, Jr., Trustee (John H. Evans, Esquire)’s request for change from AU to RU-1-11 on 178.71?acres located at the northwest corner of Hammock Road and Wiley Avenue and extending west to Palmetto Avenue, which was recommended for approval by the P&Z Board as amended by the applicant to change from AU to RU-1-11 on 38.8? acres, and AU to RR-1 on 139.91? acres, with a Binding Development Plan.

Commissioner Scarborough stated Assistant County Attorney Eden Bentley had major concerns about things included in the Binding Development Plan, such as there be affordable housing; there is no way the Board can do anything but land use; and that goes to the ultimate purchaser. He stated he understands Ms. Bentley and Attorney Philip Nohrr discussed the matter and her concerns will be met. Assistant County Attorney Eden Bentley advised Mr. Nohrr said he can amend the plan to meet the concerns outlined in the memorandum. Commissioner Scarborough inquired if there was anyone in opposition to the request or if anyone has any questions, and heard no response.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to approve Item IV.B.15 as recommended by the P&Z Board and amended by the applicant. Motion carried and ordered unanimously. (See pages for Zoning Resolutions.)

PUBLIC HEARING, RE: NORTH MERRITT ISLAND DEPENDENT SPECIAL DISTRICT
BOARD RECOMMENDATION

Chair Higgs called for the public hearing to consider the recommendation of the North Merritt Island Dependent Special District Board, made at its public hearing on April 8, 2004, as follows:

Item IV.D.1. (NMI40401) Donald L. and Frances R. Brown; Sara Queen; Josephine Scheuch; E. G. and Jodi M. Smith; Grace Hanchey; Charles S. and Katherine Crisafulli (Bud Crisafulli)’s request for change from AU, GU, and EU-2 to all EU-2 with Binding Development Plan limiting use to two units per acre on 4.89 acres located on the south side of Church Road, west of SR 3, which was recommended for approval by the North Merritt Island Dependent Special District Board, with a Binding Development Plan limiting density to two units per acre and a proposed layout of nine lots.

Bud Crisafulli advised if the Board has any questions, he will answer them.

Commissioner Pritchard stated he reviewed the item and spoke to Mr. Crisafulli; it is a matter of tidying up the house, so he would recommend approval.

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to approve Item IV.D.1. as recommended by the North Merritt Island Dependent Special District Board. Motion carried and ordered unanimously. (See page for Zoning Resolution.)

PUBLIC HEARING, RE: ORDINANCE AUTHORIZING FIREWORKS SALES IN IU-1
ZONING CLASSIFICATION EXCLUSIVELY

Chair Higgs called for the public hearing to consider an ordinance amending Chapter 62, Sections 62-1544(1)a. and 62-1102 to allow fireworks sales in IU-1 zoning classification exclusively.

There being no objections heard, motion was made by Commissioner Pritchard, seconded by Commissioner Colon, to adopt an Ordinance amending Chapter 62, Land Development Regulations, Code of Ordinances of Brevard County, Florida; amending Section 62-1544(1)a., by adding “fireworks sales, wholesale,” as a permitted use in the Heavy Industrial (IU-1) zoning classification; amending Section 62-1102, by adding the definition of “fireworks”; providing for conflicting provisions; providing for severability; providing for area encompassed; providing an effective date; and providing for inclusion in the Brevard County Code of Ordinances. Motion carried and ordered unanimously. (See page for Ordinance No. 04-17.)

Commissioner Pritchard stated the Agenda Report says staff will be proposing an amendment to the Special Events Ordinance to codify the Zoning Official’s interpretation; and requested Mr. Scott elaborate on that. Planning and Zoning Director Mel Scott advised the Board gave his office a green light that when they identify interpretations to bring them forward for codification so they can all read the Code and understand the law and not rely on interpretations. He stated he wants to be consistent with that policy and to proceed with the codification of this Ordinance. Commissioner Pritchard requested Mr. Scott explain the codification; with Mr. Scott responding essentially the special events permit allows for uses which are consistent in particular zoning classifications to occur in a manner that might not be consistent with that zoning classification; so in that instance if they are moving fireworks wholesale to IU-1, it would be his interpretation, understanding the wholesale sale of products is not a permitted use in BU-1 that they would codify that position and move to have tent sales, if they were to occur, to be in the zoning classification that fireworks sales are permitted to occur in. Commissioner Pritchard stated in essence it is requiring vendors to sell a product under a legal auspice of being legal fireworks. He stated the way it is currently being done is not legal, so the Board is strengthening its position and doing it under the guise of Florida Statutes. He stated what Mr. Scott is saying, the County is going to tighten up potential loopholes that might occur.

Chair Higgs inquired if it will come back as a public hearing; with Mr. Scott responding yes.

APPROVAL, RE: CHANGE IN BOARD MEETING SCHEDULE

Assistant County Manager Peggy Busacca advised a budget workshop is scheduled for May 13, 2004; there is no agenda for it, so staff requests the workshop be canceled. She stated after reviewing the amount of Agenda items for May 18, 2004, staff feels another meeting would be appropriate; and recommended a regular meeting be scheduled for May 25, 2004.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to cancel the May 13, 2004 Budget Workshop, and schedule a regular meeting on May 25, 2004. Motion carried and ordered unanimously.

REPORT, RE: HUGH MULLER

Commissioner Colon advised Hugh Muller with Facilities Department is going to become a deacon next month; those who follow the Catholic religion know it is a great honor; and she would like to extend congratulations to Mr. Muller.

Chair Higgs extended the Board’s congratulations to Hugh Muller upon his becoming a Deacon in the Catholic Church.

Upon motion and vote, the meeting adjourned at 6:50 p.m.

ATTEST: _________________________________
NANCY HIGGS, CHAIR
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

___________________
SCOTT ELLIS, CLERK

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