The Board of County Commissioners of Brevard County, Florida, met in regular session on May 20, 1999, at 5:30 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 *County Attorney Scott Knox.

The Invocation was given by Commissioner Sue Carlson, District 4.

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

REPORTS, RE: LOCAL OPTION GAS TAX PROPOSED REFERENDUM

County Attorney Scott Knox advised in response to the question asked by the Board during the Workshop, as to whether it can hold a referendum on the local option gas tax, the answer is it can hold a binding referendum.

Chairman Scarborough advised the Board can go forward with a binding referendum on the local option gas tax increase with a vote of three Commissioners; and if it passes, it is binding on the entire Board, so it will not come back. Mr. Knox responded that is correct. Chairman Scarborough stated the Board feels it should be taken to the people.

Commissioner O'Brien inquired if it will cost a quarter of a million dollars; with Commissioner Higgs responding it should not because there already is another referendum. Commissioner O'Brien noted that referendum is only for the unincorporated area. Chairman Scarborough stated the Board will have an opportunity to discuss it further. Commissioner O'Brien stated if the Board keeps spending money it will not be able to lower taxes, so it should stop finding ways to spend money.

REPORT, RE: LETTER TO PALM BAY PUBLIC WORKS DIRECTOR

Commissioner Higgs advised she provided each Commissioner with a copy of a letter she sent to Sue Hann, Public Works Director for City of Palm Bay, regarding the local option gas tax, as well as a copy of the estimates from the State regarding tax savings next year. Chairman Scarborough noted he does not understand all the information he received; with Commissioner Higgs responding a family of four will save $59 next year in reduced taxes; retirees with $15,000 income and $15,000 investments will save $163; small businesses will save $1,600; and a three-person family owned small business will save $484 in reduced taxes. Chairman Scarborough inquired where the information came from; with Commissioner Higgs responding the Majority Leader of the House.

REPORT, RE: TABLED ZONING ITEM 7, KLF PARTNERSHIP ET AL

Chairman Scarborough inquired if any Commissioner has items to table before getting into the public hearings; with Commissioner Carlson responding she would like to table Item 7, which is a request from KLF Partnership and Corporate Investment Properties, Inc. for expansion of a CUP for cement, concrete and concrete building products in an IU-1 zoning classification. She stated she received a lot of public input on the environmental impacts, and would like to get information from the performance based zoning study before making a decision on the item.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to table Item 7, KLF Partnership and Corporate Investment Properties, Inc.'s request to expand an existing CUP for cement, concrete and concrete building products in an IU-1 zoning classification currently having a CUP for metal salvage yard/junk yard, a CUP for cement, concrete and concrete building products, and a CUP for a 360-foot radio tower, on 21 acres located on the north side of Paint Street, north of Viera Boulevard, which had no recommendation from the Planning and Zoning Board, until August 5, 1999.

Commissioner O'Brien inquired if the Board will have the information on performance based zoning by August 5; with Commissioner Carlson responding the Board should have it by then, and she wants to do further investigation on the issues. Commissioner O'Brien stated the Board may have the information, but it may not have taken official action on it by then. Commissioner Carlson inquired when Mr. Kendig will get the information to the Board; with Assistant County Manager Peggy Busacca responding he is supposed to get a draft to the County by the first of June; and the moratorium expires August 12, 1999. Commissioner Voltz stated the Board should have enough information by then to take care of the item.

Commissioner Carlson amended the motion to table Item 7 until September 2, 1999 Board of County Commissioners meeting; and Commissioner Voltz accepted the amendment. Chairman Scarborough called for a vote on the motion. Motion carried and ordered unanimously.

Chairman Scarborough advised it is prudent to table items early in the meeting so people do not have to wait through a whole hearing before a Commissioner determines he or she needs additional information, and tables the item.

PUBLIC HEARING, RE: PORT ST. JOHN DEPENDENT SPECIAL DISTRICT BOARD RECOMMENDATION OF MAY 5, 1999

Chairman Scarborough called for the public hearing to consider the recommendation of the Port St. John Dependent Special District Board made on May 5, 1999, as follows:

Item 1. (PSJ90501) Patsy J. Clark's request for CUP for alcoholic beverages for on-premises consumption (beer and wine only) in BU-1 zoning classification on 0.56 acre located on the west side of U.S. 1, north of Fay Boulevard, which was recommended for approval by the Port St. John Dependent Special District Board.

Attorney Victor Watson, representing the applicant Patsy Clark, advised they are requesting a Conditional Use Permit (CUP) for the onsite sale of beer and wine in a restaurant; and there will be no liquor served. He stated the property is .56 acre on U.S. 1 in Port St. John, two-tenths of a mile north of Fay Boulevard; it is a commercial area with several other restaurants and businesses; and Rochelle Lawandales who is a land use planner and zoning expert, will show that the property meets the standards for granting of the CUP, their concern for the residents, and that they fit in with the business uses. Mr. Watson stated when the matter came to the Board in August, 1998, there was concern about the easement; all the properties have access to the easement to the west which goes to Haverhill Road; the east side of Haverhill Road is zoned for commercial use; there are four houses on the west side of Haverhill Road, leading to Fay Boulevard; and people use it as a shortcut to Fay Boulevard. He stated his client has a right to use that easement as does all the other properties in the area; but, since there is concern for the residents, they will agree not to use it and only use the two accesses on U.S. 1 as a condition of approval of the CUP. He noted because of their willingness to do that, most of those opposed to the request said it is fine. He stated there are a lot of people who want variety in restaurants in the area; however, if there is still opposition, he would like to have the opportunity to cross examine some of the people and come back for rebuttal.

Rochelle Lawandales, owner of Lawandales Planning Affiliates, advised they did an analysis, which has been provided to the Board; it presents some findings of fact that she rendered which iterate how they meet the various tests that the County Code requires for approval of a CUP; and she will explain the issues that speak to the test of compatibility, which is how does the proposed use fit into the character of the surrounding area. She noted she prepared several Exhibits, most of which were presented at the Port St. John hearing wherein the request was approved almost unanimously, with one dissenting vote. She stated they come before the Board with a recommendation for approval of the project; and explained Exhibit G, depicting the property and surrounding area. She stated the parcel is included in an area along U.S. 1 which the County designated as commercial, particularly BU-1; behind and to the side of the property is all BU-1; to the east is U.S. 1; and to the north it is separated from Parrish Medical Offices by a large drainage ditch which is also in a BU-1 category. She stated they are included within an appropriate zoning district for the proposed use. Ms. Lawandales advised Exhibit E is an aerial showing the property to the north; there are several places which already have onsite consumption of beer and wine such as Kelsey's which is within two-tenths of a mile from the site; there is the Family Dining, Eckerd's which sells beer and wine, Lil' Champs that sells beer and wine, Pat's Liquor and two other liquor stores along the corridor within half a mile radius; so they are consistent with the uses that currently exist and have co-existed very well with the surrounding areas for many years. She stated they prepared two site plans; one shows the use of a restaurant which is allowed by the Code and can be used at present by going through the site plan process, and the other identifying and incorporating a sensitivity to the concerns of surrounding neighbors by eliminating their rights to the easement to Haverhill Road. She stated that site plan is Exhibit D; and if the Board approves the CUP, they will proceed with the elimination of the access point to the rear. Ms. Lawandales advised they meet the tests required by the County Code which requires they address the character of the surrounding property in terms of its function, type, and amount of traffic to be generated, building size and setbacks, and other factors that are peculiar to the proposed conditional use, and how the use or site and its commensurate uses fit into the context of the surrounding area. She stated the property is well buffered; it is surrounded by a drainage ditch, easement, another drainage ditch, and vacant property to the south; and the parcel is unclaimed territory that helps to drain into the drainage ditch that runs along the south side of Parrish Medical Offices. She presented a picture of what is located on the parcel at present, noting it is not a pretty sight; and stated she hopes the Board will see that they can go through site design and planning and be a good neighbor and compatible with adjacent and surrounding uses. She presented the Exhibits to the Board; and advised the parcel is bordered by commercial uses; the site is designated for such uses in the Comprehensive Plan and Zoning Ordinance; and there are numerous existing locations which not only sell but serve beer, wine, and alcohol.

Chairman Scarborough advised Ms. Lawandales her time has lapsed, but he will take comments from the public, then give the applicant five minutes to rebut or add to the issue.

Betty Yates advised she has lived in Port St. John for 35 years and has seen a lot of progress; there is a lot of businesses in Port St. John that sell beer and wine; and a lot of people enjoy it, but they do not need a Dogs 'R' Us, and need a family-oriented restaurant. She stated it sounds good that if it is approved there would be no access to Haverhill Road; she lives directly behind Haverhill Road; and if they came off on Haverhill Road, they would come on Espanol where there is a lot of older people. She stated they also have to think about the young people going to those places and participating in what they have to offer; there will be a lot of noise and traffic congestion; and requested the Board say no, and let the older folks live out their time. She presented letters from people who were not able to attend the meeting.

Dr. Rick Chandler, Senior Pastor at First United Methodist Church in Port St. John, advised the last time he was before the Board was for the rezoning of Eckerd's Drug Store; and they have abided by the contingencies, and have become new good neighbors. He stated he wants to address a few issues, not from a theological or moral standpoint, but from a pragmatic standpoint; and the first issue he wants to address is the Advisory Board of Port St. John that voted almost unanimously for approval. He stated he reads several papers every day and tries to keep abreast of all the activities going on in the County, but he must admit ignorance or incompetence because he has yet to figure out what the different committees do because he does not attend those meetings. He stated they hear a restaurant is proposed; what is being proposed is a Dogs 'R' Us which is a sports bar; and he is not here to make judgment on moral issues, but is here to state what it really is. Dr. Chandler advised in addition to being the Pastor of the Methodist Church in Port St. John, he is also a chaplain for the Brevard County Sheriff's Department; and when he goes out on calls with the deputies, there are certain places they frequent more than others; and places like Dogs 'R' Us are at the top of the list. He requested the Board take that into consideration along with the traffic. He stated they are told the only exit and entrance will be from U.S. 1; they are loaded up in that area trying to get into different establishments; and it will make it difficult, especially if it serves alcoholic beverages. He stated there are already four different establishments in Port St. John where people can go inside and watch TV and drink alcoholic beverages; there are also four places where they can buy package goods of beer and wine; in addition to that, there are six additional convenience stores where alcohol can be purchased; so instead of using it as an argument of why it is okay to put the restaurant in there, he will use the same argument and say they already are loaded up with places that sell or serve alcoholic beverages within a three-mile area in Port St. John. He stated he is not against any type of growth, but it needs to be controlled and balanced; and putting a sports bar on U.S. 1 is not a prudent thing to do.

Shirley Mitten stated she wants to speak on behalf of the children, because as a child she grew up in adverse circumstances. She stated there were places that sold alcoholic beverages in her area within walking distances in three different directions; they were called taverns; and her dad frequented those taverns, often drinking to excess and spending most of his paycheck before he brought it home to his family. She stated he left her mother with six children, four under the age of six so she and her brothers never had a father around when they needed him, and spent much of her time wondering where her dad was and why he did not stay with them. She stated she had feelings of rejection and developed a dislike for taverns and other establishments that sold alcoholic beverages because they helped rob her of her father; and she does not want to see another child, especially those in Port St. John go through what she went through, so she is here to raise her voice to protest opening a place like Dogs 'R' Us in Port St. John. She noted it would represent a tavern where another child's father may fall into the same trap her father did; and requested the Board consider the children and families of Port St. John. She read a poem entitled What Is A Tavern, which summed up how she feels, as follows: "A tavern is sometimes called a bar, a bar to heaven, a door to hell. Whoever named it, named it well. A bar to manliness and wealth; a door to want and broken health. A bar to honor, pride, and fame; a door to grief, and sin, and shame. A bar to hope, a bar to prayer; a door to darkness and despair. A bar to honored useful life; a door to brawling senseless strife. A bar to all that's true and brave; a door to every drunkard's grave. A bar to joys that home imparts; a door to tears and aching hearts. A bar to heaven; a door to hell. Whoever named it, named it well."

John Mitten, Pastor of Victory Baptist Church in Port St. John, commented it must be an important issue for the Methodist and Baptist to be together on this item; and stated they are here again to protest the situation. He stated he is not opposed to a family restaurant and would like to see a Ryan's or Quincy's, or some good restaurant; but he objects to any enterprise that may end up being a nuisance and not a decent place for families. He stated there are legitimate reasons for parents, residents, and Commissioners to object to this establishment; they have no idea what the future will hold because they cannot see that; and all they can do is look at the past record of the enterprises that have been established by those owners. Pastor Mitten advised the Dogs 'R' Us in Titusville has a tremendous number of hits from police that go there on a continuous basis; it had a record in Melbourne when it was there; and even the people who took over the place and continued in the same area have a long list of times the police and sheriff's deputies have gone there. He stated it is not a McDonald's, Ryan's, or Quincy's, it is a sports bar; and they have no guarantees that it will not be that. He stated they also have no guarantees that they will absolutely give up their rights to Haverhill Road because it is not there; and in the meetings in Port St. John they said it is not a guarantee, but a voluntary rejection that they would not use it. Pastor Mitten stated he has a great fear of danger to the children; drunk driving is a serious problem; alcoholic beverages, whether beer or wine, is the #1 drug problem among teenagers; about 10 million current drinkers were under the age of 21 in 1995; and of those, 4.4 million were binge drinkers. He noted mixing booze and sports attracts young people; and they do not need another problem in Port St. John. He stated after looking at the establishments in Titusville and Melbourne, and at Kelsey's which police records they tried to obtain, there were no records on Kelsey's; and it is strange that it sells beer and wine and does not have a police record. He stated they compared Patrick's Pub which could be considered similar to Dogs 'R' Us; there were three sheets containing 20 disturbances, four drunk drivings, and other things; and requested the Board not import a problem that has been in Titusville and Melbourne into Port St. John. Pastor Mitten stated there will be an increase in cost to the Sheriff's Department, as well as the courts; and there might be problems with the values of properties around it. He stated he wishes they would put in a nice family restaurant that would be an asset to the community, but he does not believe that. Commissioner Voltz inquired if she could get copies of the police records; with Pastor Mitten responding yes.

Kathryn Smith advised she has lived in Port St. John for 14 years and seen it grow from a quiet community to a large community; as more establishments come to U.S. 1, there will be a tremendous growth in traffic; each new business brings in more traffic; and people moved from large cities to raise their families in a rural setting. She stated there is no comparison to the crime that existed 14 years ago and today; the community needs to grow, but a Dogs 'R' Us is not what they need; she would not take her family and friends there for dinner; and she is concerned about depreciation of the homes in the surrounding area. She stated Eckerd's and Winn-Dixie sell beer and wine, but they are taken home or other places; she does not consume alcohol and did not like the remark made at the Advisory Board meeting of May 5, 1999 that people in Port St. John like to have a toddy on Friday and Saturday nights because they have three liquor stores in a half-mile strip; and they have enough for their small community, and would appreciate the Board taking all that into consideration.

Robert Smith presented a number of letters to the Board; and stated he has sketches of the area, is concerned about traffic congestion; and he does not think they will close the access road. He expressed concern about the increase of traffic problems.

Loretta Gildersleeve stated she supports her neighbors and will read a letter from someone in the area as follows: "I oppose a bar in the interest of the property owners who live near the property and wish to keep Port St. John the community we can be proud of. I wish to go on record opposing Dogs 'R' Us establishing a business on this side. Most residents are in agreement as to what type of business should not be established so close to this residential area. It is true there are businesses nearby that sell alcoholic beverages; however, the two restaurants alcohol is consumed with the meal, and other businesses they are not consumed on the premises. This is entirely different than a business that is primarily a bar where the alcohol may or may not be consumed with food. A bar restaurant that opens late at night attracts large crowds and creates a traffic situation and noise which would be detrimental to those whose homes are adjacent or across the street behind the property. I have been to Dogs 'R' Us in Titusville for lunch and it was relatively quiet, but I have also passed there in the evening and seen the parking lot full to capacity which is good for business, but it should not be forced on a neighborhood that is not adaptable to the traffic it would create. There is entrance and exit to Haverhill behind the property, and we understand it would never be closed because of access to other businesses it serves. Many people who live in the area are people who have been there a long time, and this is their retirement home. This should be recognized and respected. We know in a bar people consume too much alcohol then get in their cars and drive. This cannot be overlooked because there are children in the neighborhood. Because of the probability of drinking and driving, the late night traffic, and the noise this would create, we ask the Board deny the request by Dogs 'R' Us to establish their business in this area."

Michael Quinn stated his problem is safety; he has two children, and every day there is increased flow of traffic down Haverhill; they say they will not use the easement, but people will when they leave the establishment; and the stop sign has been down. He stated his children cannot play in the front yard; trash from McDonald's end up in his yard; trucks from Discount Auto use the road; and the patrons from the restaurant would use it. He stated his house has been there since 1960; he had a view of the river, but now it is a wall; and it would be great if the opening in the wall is closed. He reiterated his concerns about the problem with safety and traffic.

Brenda Lister stated traffic is bad without another business on U.S. 1; a sports bar will have drinking during the day; children are dropped off by a school bus on U.S. 1; and requested the Board limit it to residences and keep the character as a family community.

Commissioner O'Brien advised Maureen Rupe serves on the Advisory Board and voted as an elected person; and inquired if it is proper for a member of that board to speak; with County Attorney Scott Knox responding if she speaks in her individual capacity she can.

Maureen Rupe, speaking as an individual, stated last year she asked that commercial traffic not be allowed on residential streets, and this item will be putting more traffic and more commercial in the area. She stated they said they could not guarantee they would close the easement, and that it would not be a sports bar; so if the Board passes it, it should be with a binding development plan that it will not be a bar and that the easement will be closed.

Attorney Watson advised as stated previously, if the Board approves the CUP, they are willing to enter into a BDP and abide by the site plan they filed with the Board which shows the rear access that will be closed off and they would not have access to Haverhill Road. He stated most of the objections are the sale and drinking of alcohol; they do not like alcohol; the County has already found that it is appropriate to approve alcohol consumption in restaurants if certain conditions are met; they have shown that they meet those conditions; and the testimony tonight is not sufficient to overcome that. He stated there was a lot of talk about Dogs 'R' Us; that is not relevant and does not matter; the proposed use is for a restaurant; they are talking about zoning now; and when they talk about BU-1 zoning, they are talking about commercial zoning. He stated there are different types of uses that can go in there; and when they talk about a restaurant with a CUP, it can be any restaurant. He stated it is appropriate to have a restaurant with a CUP on the property; there are several other restaurants in the area with CUP's serving beer and wine; so it is appropriate. Mr. Watson advised they are required to serve at least 51% food; and the estimates are that the sales will be approximately 80% food and 20% beer and wine. He stated there was discussion about Dogs 'R' Us in Titusville, but they were comparing apples to oranges; it is a different community and area; it will not be a bar-type setting, only tables in a restaurant-type setting; and there are only 35 parking spaces, so it will be a small restaurant compared to Dogs 'R' Us in Titusville which has about 140 parking spaces. He advised Realtor Dwayne Watson who has been involved in various properties in Port St. John is working with the County to put in signs and do things to keep trucks off Haverhill Road; they are going beyond that and requesting the County approve the CUP with the condition that there will be no access to Haverhill Road; and if the County does not approve the CUP, another use could go in there and the access will be there. He noted there were a lot of objections to business use; people said there are too many businesses, and they do not want any more businesses; it is zoned BU-1 and there are going to be businesses; and there will be more traffic generated, much more than would be generated if the BDP they are requesting is imposed on them.

Rochelle Lawandales advised the restaurant is allowed under the current Code if it meets certain tests; they have showed that they meet the tests; and they are willing to go beyond that which is required to be sensitive to the surrounding area and limit access to U.S. 1. She stated there is plenty of capacity on U.S. 1; staff report indicates they will meet the level of service standards; the site plan process will dictate the types of buffers, ingress/egress, locations of amenities on the site, etc.; and whether or not the site is allowed to sell beer and wine, it can be used as a restaurant, so whether or not it can be a restaurant is not the question. She stated it can be a restaurant that uses the rear access which is within their rights to do; however, they voluntarily imposed the elimination of that as a condition of the permit after hearing the concerns of the residents.

Commissioner Higgs advised Exhibit E shows the property at the top and properties to the south to demonstrate compatibility and the presence of other establishments either selling or serving alcohol, but it does not show anything north of the property; and inquired what might that be. Ms. Lawandales advised her area of focus was from Parrish Medical Office south into Port St. John and along that strip, so she does not know what those uses are. Commissioner Higgs inquired how far is Parrish from the property; with Ms. Lawandales responding about half a mile. Mr. Watson stated directly to the north is a very large drainage ditch and retention area, then Jess Parrish Medical Offices, other medical offices, a pharmacy, and other convenience stores and commercial uses. Commissioner Higgs stated it was pointed out that there were eight places either selling or serving alcoholic beverages to the south, but she did not hear one business Mr. Watson just mentioned serving or selling alcohol unless they are the convenience stores. Mr. Watson advised immediately to the north is a very large retention area of at least 100 feet; it is a buffer; to the south is more commercial and businesses; and they are part of what is shown in the picture of the entire area. Commissioner Higgs stated, in demonstrating compatibility, do they think what is north of the property is irrelevant; with Ms. Lawandales responding no, but there is a natural barrier there; and the property, by its proximity and contiguity, is part and parcel of the lands which are north of Fay Boulevard. She explained the aerial photograph depicting the natural barrier that segregates the area of commercial activity that goes north of Fay Boulevard and ends at their property. She stated the County has done well in terms of having some connectivity among those pieces of property; and their parcel assumes the character of the area to the South of the enormous drainage ditch. She inquired if that answered Commissioner Higgs' question. Commissioner Higgs responded Ms. Lawandales did not say to the north is irrelevant in establishing the character of the area; with Ms. Lawandales responding no, she did not. Mr. Watson stated the property is buffered from what is to the north; there is a lot of undeveloped land to the north, so they do not know what the uses will be; and there are various uses in the BU-1 zoning classification.

Commissioner Carlson stated at the beginning of the presentation, Dogs 'R' Us was brought up; part of the Commissioners' packet talks about the Italian Fisherman Restaurant; and inquired if their intention to put it with their packet assumes that is what is going to be there on the property; with Ms. Lawandales responding no, they entered that in the record at the Port St. John hearing as a demonstrative aide showing that the Family Dining Restaurant shown on the aerial is just south of Fay Boulevard and serves beer and wine along with Kelsey's which is just south of their parcel. Commissioner Carlson inquired if the intent is to have a takeout service with a drive through and two outlets on U.S. 1; with Ms. Lawandales responding yes.

Commissioner O'Brien advised Kelsey's is just south of the property; the Port St. John Advisory Board voted 4 to 1 to approve it; they demonstrated compatibility and want to put a restaurant on the property; and if they had more seats they could apply for an "x" license, so he does not see anything wrong with a CUP to serve beer and wine. He stated it is not going to be a bar, it is going to be a restaurant; they have a good plan; and he would support a motion to approve it as recommended by the Advisory Board.

Commissioner Voltz inquired if it is going to be a sports bar; with Ms. Lawandales responding no, it is going to be a restaurant; there will not be a bar; it will be restaurant seating; so it will be like Kelsey's or the Family Diner where people can take their families to have dinner and a glass of beer or wine with their dinner. Commissioner Voltz inquired if the BDP can include a provision that they will not have a bar on the property; with Mr. Knox responding if they are representing there is not going to be a bar, yes, it can be included.

Commissioner Carlson inquired about the law governing drive through for alcoholic beverages in a takeout scenario; with Commissioner O'Brien responding they cannot do it if it is in an open container. Commissioner Carlson inquired if it has to be a bottle of wine or can of beer; with Mr. Knox responding yes, it has to be in a closed container to take home.

Chairman Scarborough advised Attorney Victor Watson is the husband of Assistant County Attorney Eden Bentley; and that is why Scott Knox is here on this issue. He stated he and Ms. Bentley met with some homeowners and discussed various elements; people brought up the difference between Kelsey's and a sports bar, levels of consumption demonstrated in the arrest reports, and Kelsey's having no arrests and the others having long sheets of arrests; and inquired to what extent does it affect the ability of the Board to look at the whole matter. He stated the yellow pages says the Board is supposed to look at effect on traffic within the vicinity caused by the proposed conditional use, ingress/egress, reference to automotive safety, and other considerations particular to the proposed conditional use; and at the meeting, Ms. Bentley said, since the item has been on appeal and has the potential of going back to court, it would be advantageous to hire a traffic expert to review the traffic safety issues.

Chairman Scarborough passed the gavel to Vice Chairman Higgs.

Motion by Commissioner Scarborough, to table Item 1, Patsy J. Clark's request for CUP. Motion died for lack of a second.

Commissioner Scarborough inquired if the Board hired an expert, when will he come back; with Zoning Director Rick Enos responding there are local traffic experts in private practice. Commissioner Scarborough inquired if the Board has to execute a contract; with Assistant County Manager Peggy Busacca responding there are continuing contracts with several consultants. Commissioner Scarborough inquired if the consultants could do traffic analysis with the idea of the difference between the propensity being accidents coming from different types of establishments; with Ms. Busacca responding she believes they could, but would need 60 days. Commissioner Scarborough stated it would move it to the September meeting; with Ms. Busacca responding it could be August.

Commissioner O'Brien stated the Board would want to hire a traffic specialist if it plans to deny the application; the Port St. John Advisory Board passed it four to one saying there is nothing wrong with it; the owners stated clearly it will be a restaurant not a Dogs 'R' Us bar; and suggested the Board be polled. Commissioner Scarborough stated he did not move to deny, but to see if there is a causal effect between what is occurring and what the applicant has given the Board this evening. Commissioner Scarborough stated the applicant will have the opportunity to cross examine the expert witness when it comes back; and he could bring his own expert witness in at that time. He stated that is the advice Ms. Bentley gave at the meeting; so he is trying to do a competent job in making a determination on the request for a CUP. He stated U.S. 1 is a busy road; he does not know the facts of where it is located, traffic patterns in the area, and if use of alcohol will create problems or not; and the yellow sheet of what the Board should consider is peppered with remarks about traffic safety. He stated it has been brought to the Board's attention sufficiently that it would be prudent to take this course of action. Commissioner O'Brien inquired if it was done for Eckerd's and if the Board will do it for other stores and businesses south of the property; with Commissioner Scarborough responding Eckerd's does not have onsite consumption; Kelsey's has consumption as a family restaurant; but Dogs 'R' Us demonstrated a different type of establishment; and if they come back and establish the difference between this Dogs 'R' Us and another Dogs 'R' Us, that is something that could be analyzed by the traffic expert at the meeting. Commissioner O'Brien stated he does not want the Board to expend dollars if it is going to vote for approval; but it has to have competent substantial evidence if it moves to deny; so he can see going that route. Commissioner Scarborough stated it would be premature to say the Board will approve or disapprove until it has the expert testimony; and that is the advice he received from Ms. Bentley.

Commissioner Voltz inquired if there is another restaurant in the area that is going to be similar to the proposed restaurant that the Board can compare it to; with Mr. Watson responding there is Kelsey's within 100 yards of the property; and there is the Italian Fisherman which is also a restaurant that serves beer and wine. Commissioner Voltz inquired if the proposed restaurant will be similar to those; with Mr. Watson responding it is going to have restaurant seating. Commissioner Voltz inquired how many seats does Kelsey's have; with Mr. Watson responding he would say it is equivalent in size to the proposed restaurant; and with regard to traffic, Eckerd's generates more traffic than the restaurant would.

Commissioner Scarborough stated the Board received police reports; that business needs to be defined in an improved BDP so when the traffic expert looks at the activity, he will be able to see precisely what will be done; and that may help the applicant. He stated it is unfair to the process to say the Board is going to hire an expert to tell it what it wants to hear; and he should tell the Board what he sees and what he hears. Commissioner Carlson inquired if the burden of proof should be on the applicant to get a traffic study; with Commissioner Scarborough responding Ms. Bentley told him at this point the Board needs to hire an expert. Commissioner Carlson stated she will support a motion to hire an expert based on the safety issue. Commissioner O'Brien stated he would have a hard time supporting a motion like that because the Board never did it; with Commissioner Scarborough responding it did it with the towers. Commissioner Scarborough stated Ms. Bentley told him the Board needs to start doing that because if they are challenged in court and there is no independent expert witness, the action of the Board is basically considered capricious and not based on evidence. He stated there is a court reporter here tonight; and the item has been to the courts previously. Commissioner O'Brien inquired if the other items on the agenda that have not been heard yet will require a traffic report; with Commissioner Scarborough responding no.

Mr. Knox advised what Commissioner Scarborough is concerned with are the issues raised tonight about traffic safety and traffic circulation; so he is asking for an objective opinion from someone other than the applicant or County staff to analyze the situation. He stated it could come back favorable or detrimental, but the Board will have an objective opinion. Commissioner Higgs stated the Board has been told by the courts and its attorneys that it has to have competent substantial evidence in any consideration of a decision, so it is wise to get an expert opinion.

Motion by Commissioner Higgs, seconded by Commissioner Voltz, to table Item 1 until August 5, 1999, and authorize staff to hire a traffic analyst to conduct a traffic study of the area. Motion carried and ordered unanimously.

The meeting recessed at 6:49 p.m., and reconvened at 7:00 p.m.

*Mr. Knox's absence was noted; and Assistant County Attorney Eden Bentley's presence was noted at this time.

PUBLIC HEARING, RE: PLANNING AND ZONING RECOMMENDATIONS OF MAY 3, 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 May 3, 1999, as follows:

Item 1. (Z9905101) Brian and Heather Calligan's request for mixed use district boundary expansion and change from GU to RVP with BDP on 117.23 acres located on the south side of SR 46, east of Turpentine Road, which was tabled by the applicant to July 6, 1999 P&Z meeting and August 5, 1999 BCC meeting.

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

Item 2. (Z9905102) William R. Lefler and Doreen L. Colley's request for change from GU to AU on 4.89 acres located on the west side of Singleton Avenue, north of Parrish Road, 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. (Z990503) Heide Silbernagl's request for change from GU to ARR on 1 acre located on the north side of Missile Avenue, east of Satellite Boulevard, which was recommended for approval by the P&Z Board.

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

Item 5. (Z9905301) Grady G. and Gail Lynne Hudmon's request for change from GU to AGR on 13.8 acres located south of Micco Road, and east of I-95, which was recommended for approval by the P&Z Board.

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

Item 6. (Z9905302) Abilio D. Milo's request for change from AU to RR-1 on 1.5 acres located on the southwest corner of 3rd Street and Avenue E, which was recommended for approval by the P&Z Board.

Commissioner Higgs advised according to the records, the Milos purchased the property in 1980; at that time it was three acres, but they subdivided it in 1983 and sold 1.5 acres to the Chans; and now they want to rezone it to RR-1 because it cannot be AU; however, they created the illegal lot. She stated there are two RR-1 lots in the area, but the parcel is surrounded on three sides by AU; and it is not right to rezone it to RR-1 when they created the illegal lot.

Chip Allen, representing the applicant, advised the Milos live in Illinois and were planning to retire here with the Chans, who are also doctors and friends or relatives, so they sold part of the lot to the Chans and were planning to build two single-family residences. He stated they did not know it would be a problem when they did that; they decided not to move to Brevard County; their lot is still vacant; and the Chans are not going to do anything with their lot.

Commissioner Carlson inquired if there are scrub jays on the property; with Mr. Enos responding it may be a scrub jay habitat, but he does not know if there are scrub jays on it. Mr. Allen stated there are houses all around the area and across the street.

Commissioner Higgs advised in this situation, the applicant created an illegal lot by his own action; RR-1 is not proper for the area since it is surrounded on three sides by AU; legally they cannot build on it; and inquired if the Board would be in a position of taking if it does not rezone the property; with Assistant County Attorney Eden Bentley responding the Board is always subject to that sort of claim; but since it was a self-inflicted situation, she does not think it would be likely to succeed. Commissioner Higgs stated she has seen it happen several times where people create their own difficulty and a zoning situation that would be improper, so she will move to deny the request.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to deny Item 6.

Commissioner Voltz advised she understands that the Milos created the problem, but it was not intentional; they did not divide it knowing they would not be able to build; and she will not support the motion because there are other RR-1 lots in the area. She stated she understands why Commissioner Higgs does not want the whole area turning into RR-1, but it has already started and should be allowed. Commissioner Higgs stated the Milos have the potential, with someone who is like family, to reconfigure the lots back to the original size; the representative for the applicant stated the Chans, who have the abutting parcel, may avail it for sale, and it has not been built on; she cannot speak to their intention; but if RR-1 is continued, the Board would have to rezone not only the Milos' lot but the Chans as well; and it starts the chain of events that could change the character of the area. She stated it is not consistent with what is there right now, and is not in the best interest of the community.

Mr. Allen stated the Milos had no idea this would be the case; they did not do it with intention of coming back for rezoning or they would have done it sooner; so it is obvious there is nothing funny going on. He advised of his experience as a member of the Board of Adjustment for the City of Melbourne, noting his understanding of Commissioner Higgs' concerns; and reiterated there was nothing funny going on. He stated the Milos and Chans planned to retire here; now they are not moving to Florida, so he listed the property for sale as 1.5 acres; Mr. Friddle wanted to buy it and build a house; but when he tried to pull a permit they told him it was not buildable because it was not 2.5 acres; and that is when it came to their attention and started this process. He stated the Milos did not know that would happen when they deeded part of the property to the Chans several years ago; and it was a comedy of errors. He noted most of the area has single-family homes; there is no one raising farm animals; three acres is a lot of property for a home; and considering the continuity of the area and everything that is there, RR-1 would be in harmony with the area. He reiterated that the Milos did not know it would create a problem or they would not have done it.

Commissioner Voltz inquired if the other people purchased the property; with Mr. Allen responding no, but they made a contract offer; however, when they tried to pull the permit to build a home, they found out the property was not large enough. He stated that is when they told him he needed to go before the County and have it rezoned to RR-1.

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

Item 4. (Z9905201) Dennis F. and Rose M. Troyan and Benjamin P. and Kathy T. Bryant's request for Mixed Use District boundary expansion and change from RA-2-10(4) to BU-1 on 2.7 acres located on the east side of SR 3, south of North Tropical Trail, which was recommended for approval by the LPA and P&Z Board.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to approve Item 4 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 7. KLF Partnership and Corporate Investment Properties, Inc.'s request was tabled to September 2, 1999 early in the meeting.

Item 8. (Z9905402) Edgar R., II and Diane E. Bertram's request for change from EU and BU-1 to all EU on 0.50 acre located east of U.S. 1, south of McIver Lane, which was recommended for approval by the P&Z Board.

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

Item 9. (Z9905403) Norman L. Paxton, Trustee's request for change from BU-1 to BU-2 on 3.21 acres located on the east side of U.S. 1, north of Rockledge Drive, which was recommended for approval by the P&Z Board, limited to furniture warehousing only and all BU-1 uses, and excluding the front 75 feet which is to remain BU-1.

Commissioner Carlson requested an explanation of the application for BU-1 on the front and BU-2 on the back; with Norman Paxton responding he is not familiar with the details of what Mr. Stevens wants; and all he is interested in is selling the property and having something that will be compatible with what is behind it, which is River Road Estates. He stated 30 years ago he bought 18 acres there; the bulk of it is River Road Estates, which is a nice development; but Mr. Stevens plans to develop this property.

Richard Stevens advised the request for BU-2 is to build a nice building to store and retail furniture and make deliveries out of it.

Commissioner Carlson inquired if trucks will go in and out every day; with Mr. Stevens responding there will be trucks coming in every day, probably one large truck a day for an hour or so, and his smaller trucks used to deliver furniture. He stated his offices and personnel will be in the BU-1 area. Commissioner Carlson stated her concern is compatibility with the homes; with Mr. Stevens responding it would not be a noisy situation; originally it could have been a strip center; and that would have caused more traffic and noise than they would cause. Commissioner Carlson inquired about a buffer; with Mr. Stevens responding a six-foot concrete block wall is required.

Dave Menzel with MAI Architects Engineers, Inc., advised there is a 65-foot buffer between the area and back of the building; the loading will be on one side only; the wall will be in the back; and if there is any more buffer needed, like a berm, there is enough room to accommodate it.

Chairman Scarborough stated he does not have paperwork pertaining to the item; with Mr. Enos responding he is seeing it for the first time also. Chairman Scarborough inquired if it has to be decided tonight; with Mr. Stevens responding he has ten days to make up his mind whether or not to buy the property; and if he cannot get approval of the rezoning, he will not buy it. Chairman Scarborough stated if it is all put in with the zoning change it becomes binding on the person to do it in the way it is configured. Mr. Stevens stated he is required to put up a wall; there is going to be a separation; and there will be no street going into the neighborhood. Mr. Menzel stated they would stipulate to providing a 50-foot buffer between any type of construction, whether it is a driveway, parking area, or building, and their structure.

Commissioner Carlson inquired if it will be a vegetative buffer; with Mr. Menzel responding it is designed as a retention swale and is just a vacant piece of property with some wooded areas. Mr. Stevens stated there are mostly vines on the property.

Mr. Norman stated he contacted the homeowners and asked them to contact Mr. Stevens if they had problems; they were concerned about what could go in there that could be noisy and smelly; but there have been no problem with this proposal.

Chairman Scarborough stated Mr. Menzel mentioned a berm and vegetative buffer; people prefer that to a wall; and suggested opaque vegetation with berming. Mr. Stevens advised his store in Melbourne Village has a nice hedge; he and the people in the area prefer to have greenery; but a wall is required to separate commercial and residential areas. He noted if the wall is required, they will do it; but if the preference is greenery, he would prefer that also. Commissioner Carlson inquired if Mr. Stevens heard from the homeowners; with Mr. Stevens responding one person objected based on traffic in his area; but there is not going to be any roads to that area, just to U.S. 1.

Commissioner Carlson stated she feels comfortable with a 50-foot buffer as long as it is an opaque vegetative berm buffer. Mr. Menzel stated the entire 50 feet would not be needed to create a green berm; and noted a need for the retention area. Chairman Scarborough stated it is up to the developer to create the buffer; it could be mounding with vegetation on top; and if it is real dense, it can be a narrow strip. Mr. Menzel stated they would take a wider area than normal, create a small berm and put a hedge on top of it closely spaced, and it would be something that grows fairly tall.

Mr. Enos advised a wall is required by the Code; there may be waiver provisions available, but right now the Code requires a wall. Chairman Scarborough stated the Board needs to address that because people prefer vegetation which adds to property values rather than a wall. Assistant County Manager Peggy Busacca inquired if the Board wants staff to bring back an amendment to the Code; with Chairman Scarborough responding he would like to see it. Ms. Busacca advised staff will bring it back to the Board; but if they are granted permission to advertise, it could move through the system quickly.

Commissioner Carlson stated since the wall is required, she would like to have vegetation that grows over the wall on Mr. Stevens' side because he has to maintain it, to soften the appearance and add to the buffering nature.

Commissioner Voltz inquired if the Board provides for waivers, could Mr. Stevens return for a waiver since it will be a while before construction takes place. Mr. Menzel stated he can show both the wall and vegetative buffer on the site plan to get through permitting; and if it passes, that could be an option.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to approve Item 9 with a binding development plan for a wall with vegetation, and option to apply for opaque vegetative berm buffer if available at the time the wall is to be constructed. Motion carried and ordered unanimously. (See page for Binding Development Agreement.)

Item 10. (Z9905404) James K. and Edna Fairbanks Smith's request for change from RU-1-13 to RU-1-7 on 0.26 acre located east of U.S. 1, north of Coquina Ridge Drive, which was recommended for approval by the P&Z Board.

Commissioner Higgs advised everything in the area is RU-1-13, but the applicants want RU-1-7 to divide property into two lots; and that is out of character with the area. Mr. Enos advised the lot was split into two lots and to build on it they have to have RU-1-7. Commissioner Higgs inquired if they divided it themselves; with Mr. Enos responding yes. Commissioner Higgs inquired when; with Mr. Enos responding it appears to be in the 1970's.

Commissioner Carlson inquired if there was opposition; with Mr. Enos responding one person objected. Commissioner Carlson inquired if the house next to it has RU-1-7; with Mr. Enos responding no, it is RU-1-13.

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. (Z9905405) A. Duda & Sons, Inc.'s request for change from AU and PUD to all PUD on 152.69? acres located west of St. Andrews Isle Subdivision, and west of the southern terminus of St. Andrews Boulevard, which was recommended for approval by the P&Z Board with amended legal description.

Commissioner Carlson advised she met with the applicant and discussed some items to be included in the amendment to the PUD; they also had Suntree Estates representatives there, representing the Homeowners Association.

Hugh Evans, representing the applicant, inquired if the Board wants him to go through the stipulations; with Chairman Scarborough responding only if there are questions on the stipulations. Commissioner Carlson stated she has no questions, other than to ensure they are all contained in the list. Mr. Evans advised they added the notification of homeowners who are adjacent to the potential expansion of the Pineda Causeway and flyway. Commissioner Carlson advised they discussed a disclaimer; and inquired how will that be done; with Mr. Evans responding in contract form.

Commissioner Voltz inquired where would the Pineda Extension come through; with Mr. Evans presenting and explaining a map of the area, and noting they will stay out of the area that would be the potential future connection site. Commissioner Voltz stated she met with the Financial Subcommittee of the Mitigation Strategy; they are working on it; and information came back that the State is doing a study and the Pineda Causeway is the worst causeway in Brevard County. She stated there is a desperate need to get it done; and the proposed development looks like it abuts the area for the Pineda Causeway extension.

Commissioner Higgs stated the roadway that is listed in terms of volume is Wickham Road; the traffic for the 159 acres will go on St. Andrews and to Interlocken; and inquired if that is correct; with Mr. Enos responding yes, Dick Thompson did a quick evaluation of that, and said the current traffic on that segment of St. Andrews south of Interlocken is about 2,900 trips right now; and this project will add 2,100 trips, for a total of 5,000 trips. Commissioner Higgs inquired if that includes all the platted lots; with Mr. Enos responding probably not. He noted a general analysis of the paper trips was done and they determined that north of Wickham Road there is about 826 lots undeveloped and south of Wickham Road there is about 502 lots undeveloped. Commissioner Higgs expressed concern about the trips on Wickham Road creating problems. Mr. Evans advised the traffic can divide and enter Wickham in three different locations once it gets off St. Andrews.

Chairman Scarborough advised Mr. Enos pointed out that the level of service analysis did not occur until it got to Wickham Road; and he expressed the same concern. He stated internally the level of service was not analyzed, so it is not a correct analysis. Mr. Evans stated the traffic can divide in three different directions to get to Wickham Road, so he is not sure what point on Wickham Road the Board is looking at. Commissioner Carlson stated a traffic study should be back to the Board in September of the whole corridor, and suggested tabling the request until then. Mr. Evans advised the project will be developed in phases over a period of time and will come back with more details on exact lot locations, layouts, traffic elements, and those things, so it can be addressed later on in the process.

Motion by Commissioner Carlson, to table Item 11 until September 2, 1999, to get the traffic analysis for the area.

Chairman Scarborough inquired if they are doing an internal Suntree analysis; with Commissioner Carlson responding she does not know. Mr. Evans inquired if it is part of the zoning process they are in right now to look into traffic elements; with Chairman Scarborough responding they need an answer on the level of service issue. Mr. Evans stated they have been through the P&Z Board, met with Commissioners, and been through the process; and this is the first time the traffic question has come up. Commissioner Carlson advised Mr. Evans was aware of the traffic issues in the general area; she was not aware it was not looked at, so she has to move to table it to get more information. Chairman Scarborough inquired if it can come back sooner. Mr. Evans stated it puts them in a difficult position. Mr. Enos stated the earliest it can come back is August. Chairman Scarborough inquired if the traffic study will be internal and give the information needed. Mr. Evans inquired what is the Board specifically trying to determine; with Chairman Scarborough responding level of service as the traffic traverses through Suntree out to Wickham Road. Mr. Evans inquired if it is St. Andrews; with Commissioner Carlson responding St. Andrews and Wickham.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to table Item 11 until the August 5, 1999 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item 12. (Z9905406) The Viera Company's request for change from PUD, BU-1, PIP, and TU-2 to all PUD on 1,316 acres located east of I-95, adjacent to Murrell Road and Viera Boulevard, which was approved by the P&Z Board, excluding the portion of the property designated PIP on the Future Land Use Map, which was tabled to March, 2000.

Hassan Kamal with BSE Consultants, advised in 1994, the Viera North PUD was approved by the Board; it covered approximately 1,666 acres; and since that time, it has been proceeding based on the original guidelines established. He explained a map of the DRI, depicting major roadways and the PUD location at Viera Boulevard and Murrell Road; and stated there have been some revisions to reflect market conditions, environmental constraints, and various government requirements and regulations. He stated in 1998, The Viera Company processed a notice of proposed change to Brevard County and the Regional Planning Council, to change land uses on certain parcels and consolidate other parcels. He stated the density of many parcels decreased with some parcels going from multifamily to single-family, and commercial and planned industrial park (PIP) uses converted to residential uses. Mr. Kamal advised although the DRI notice of proposed change was approved along with associated land uses and densities, the underlying zoning for those land uses was not changed; and that is the primary reason they are here today, to take care of that administrative change to make the land uses compatible with the zoning. He stated the current PUD is approved for 4,425 dwelling units with an overall density of 5.12 units per acre; the proposed modification will consist of 3,927 dwelling units for a gross density of 4.25 units per acre, a reduction of almost 500 dwelling units. He stated other change are to bring consistency between the approved DRI map and the PUD plan; the small map is the DRI map referred to as Map H, and the larger drawing is the proposed PUD plan; and explained the map, depicting the relocation of the fire station from Parcel HH to Parcel NN at the request of Brevard County, modification of parcel identification parameters to match the parcels, change to park locations to match locations approved in the 1998 notice of proposed changes, changes to land uses in Parcels U, X and W from multifamily to single-family, and merging Parcels W and Q. He stated Parcels U and X were for multifamily with over 900 units; they are showing single-family with 500 units; Parcels W and Q are changing from 400 units of multifamily, a density of 16 units per acre and 550,000 square feet of office showroom, to single-family, 425 units with net density of 5.72 units per acre versus 16 units per acre. Mr. Kamal advised they are expanding the PUD boundary because the original PUD did not include lands in the corner of Viera and Murrell intersection and lands in the other corner; they modified the open space configuration to match the revised park layout and reflect the updated development plans and current open space criteria in the County's Ordinance; and they are requesting a waiver to allow 40-foot wide lots in Parcels W and Q which were originally approved for multifamily and PIP. He stated they eliminated over 400 dwelling units in that area and over 550,000 square feet of office showroom. He requested a waiver to allow 40-foot lots in a portion of Parcels E, F and G; and identified the location of those parcels. He stated their request is limited to the two parcels surrounded by conservation areas and lakes. Mr. Kamal advised for planning purposes they eliminated the northerly extension of Crane Creek Boulevard which was taken out in the approved DRI notice of proposed change; they eliminated the extension of Crane Creek Boulevard to the south because it is no longer necessary based on the development of Indian River Colony Club extension; and there was an access road shown to the east DRI boundary that was eliminated because access to that parcel has been provided through a separate access easement east of the DRI.

John Sovich advised some years ago he looked at the Viera area and its Master Plan, and it was a beautiful well-planned community; but there was misleading advertising because they did not show where apartments were going in. He stated he loves the area and town, but the advertising needs to be clear to keep new residents informed as well as older residents. Mr. Sovich stated he is against 40-foot lots and would prefer to see at least 50-foot lots. Commissioner Carlson inquired about the lot width in Mr. Sovich's area; with Mr. Sovich responding 78 feet wide in Six Mile Creek is the minimum.

Clinton Dyer presented a handout to the Board and stated he will present legal and compelling reasons why the request should be denied. He stated the PUD laws simplify the development process through local government regulations, but they do not eliminate the local Codes; and the applicant wants 40-foot lots to provide low-priced housing units for first-time homebuyers and senior citizens as they were told at a meeting on May 18, 1999 in The Viera Company's office. He read an article entitled Central Florida Counties Minimum Price Housing, stating, "Brevard County, through September 1997 and September 1998 have the lowest medium priced housing." Mr. Dyer stated permitting building on smaller lots will result in lower values; the Board has the responsibility and authority to deny the request; and now it has ample reasons to do so. He stated Florida State law, Section 62-1442 provides developers sweeping and simplified entitlements to encourage development, but Section 62-1450 provides for the County to evaluate the plan for the general welfare of the PUD property owners and residents of the County. He stated the Planning and Zoning Board recommended approval, but they process the plan and not evaluate it; Zoning Official Rick Enos said 50 feet is the smallest lot in any standard classifications; and it also is the smallest lot size they can have as a matter of right in a PUD; however, they can request reductions by waiver, which is what the applicant is doing today. Mr. Dyer stated Section 62-1154 provides that the owner of the residential property may request a waiver if the lot does not meet the minimum size width or depth required or is inconsistent with the density guidelines of the Comprehensive Plan and the owner cannot prove nonconforming status; this property does not meet any of those conditions to be considered for a waiver; and the waiver shall not exceed 10% of the required minimum lot size as required by the specific zoning classification; therefore, the law does not allow 40-foot wide lots. He stated Mr. Kamal, P.E. for the developer, stated the two parcels in the northern portion will be completely buffered by conservation areas; he emphasized that the 40-foot lots will be surrounded by those conservation areas, and will not impact the area; and since that is important, it is also important to completely buffer the southern portion the same way. Mr. Dyer stated staff conforms to the statutes to form their decisions as if statutes were a perfect document, perfectly interpreted, perfectly implemented, and perfectly appropriate; however, the law is not perfect and neither is staff; unfortunately he is not perfect either, but the Board will have a better chance to make a better decision because it has a better understanding of the imperfections.

Chairman Scarborough advised Mr. Dyer his time has expired.

Motion by Commissioner Carlson, to grant additional two minutes to Mr. Dyer. Motion died for lack of a second.

Robert Artz advised he disagrees with the 40-foot lots; most people who moved in the area believed they were moving into an area with individual homes with reasonable size lots; 78 feet is pretty limited; but 40 feet does not meet the requirements and does not fit into the neighborhood. He noted the Board should not permit the 40-foot lots.

Mr. Kamal advised the audience focused on the lot width in Parcels W and Q; as part of the original approval of the DRI and PUD, prior to development of Six Mile Creek, those parcels were approved at a density of 16 units per acre for multifamily developments of significantly smaller units than the 40-foot lots they are proposing; plus an additional 550,000 square feet of PIP are being eliminated. He stated The Viera Company has taken that approval and substituted it for 425 single-family units, so the impact to the residents of Six Mile Creek is significantly less than when their project was approved. He stated they have taken a great reduction in intensity and density and are proposing a subdivision of considerably less impact; and there is a misperception regarding the 40-foot lots. He stated people think the lots will be cheap products or attract elements that are not desirable in the community, but the lot size is not what makes the community valuable; there are a lot of things developers do to add value to a community besides lot size; there are architectural features, amenities, restrictive covenants, and infrastructure improvements; and those are the things that speak to value of a community.

Commissioner Higgs advised her information is difficult to discern; and inquired about the total units; with Mr. Kamal responding the current Viera North PUD is approved for 4,425 dwelling units; and the proposal is for 3,927 dwelling units. Commissioner Higgs inquired if PIP, TU-2 and BU-1 are being removed; with Mr. Kamal responding Parcels H, I, and J were approved as TU-2 for a 700-room hotel, 404 multifamily units, and 150,000 square feet of commercial development; they are proposing 217,000 square feet of commercial, 670 multifamily units, elimination of the motel rooms, and adjustment back to multifamily units. He stated 208 multifamily units have already been constructed as the Greens at Viera; Parcels U and X are multifamily for 965 units and is being replaced with 500 single-family units; and Parcels W and Q was 400 multifamily units and 550,000 square feet of office showroom zoned PIP, which is being replaced by 425 single-family units. He stated Parcels E, F and G were approved for approximately 825 single-family units, and under the proposal, it will be 1,200 single-family units. Commissioner Higgs inquired if they are adding single-family units and removing the commercial; with Mr. Kamal responding they have commercial in H, I, J, O and P; and outside the limits of the PUD are two parcels zoned BU-1 at the intersection of Viera Boulevard and Murrell Road. Commissioner Higgs stated from discussions of the DRI, part of the advantages was the mix of uses and internal capture of trips; and now the proposal is changing the mixes. Mr. Kamal advised that was already addressed in the notice of proposed change; all the land uses and mixes were approved in 1998 as part of that notice; and what they are doing now is adjusting the zoning to reflect the changes. He stated the issues regarding internal capture and mixes of residential and commercial were addressed to the satisfaction of the Board during the 1998 modification. Commissioner Higgs inquired what will happen to the trips; with Mr. Kamal responding he is not the traffic engineer who worked on that; but they still have a lot of internal capture and reduced the number of residential units. He stated they have a monitoring model program that continues every year to see if there are any impacts that occurred as a result of any land use changes.

Commissioner Carlson advised the PIP change will require an amendment to the Future Land Use map, so the Board cannot approve that today. Mr. Kamal stated they understand it will be tabled until March, 2000. Commissioner Carlson stated compatibility of 40-foot lots is a concern; and inquired if the applicant is willing to add open space to compensate for the 40-foot lots; with Mr. Kamal responding there is open space in those areas; they have a 3.4-acre park of the 74-acre development; they have significant passive open space of almost 12 acres, and an active open space park; and directly across the street is a 13-acre proposed park. He noted further down is a 4-acre park; and where they are requesting 40-foot lots there are a 14-acre park and 4-acre park and a significant amount of open space. Commissioner Carlson inquired about the buffering around the wetland area in the northern section; with Mr. Kamal responding native vegetation, mix of pine flatwoods, some scrub, and all undisturbed lands of varying widths. He stated the minimum is 25 feet, the average is 50 feet, but there are places where the buffers go 100 feet or more because of wetland protection, gopher tortoise protection, etc. Commissioner Carlson inquired if affordable housing is the intent of the 40-foot lots; with Mr. Kamal responding The Viera Company has not finalized the plans of what they are going to do, but they have been studying it for a while; he has pictures to demonstrate 40-foot lots that can be done in an attractive manner; and he can show those to the Board, but they do not reflect exactly what is going to happen because they have not gotten that far in the planning stage.

Chairman Scarborough inquired if there are other 40-foot lot developments in the County; with Mr. Enos responding he is not aware of any in the unincorporated area, but there are some in the City of Melbourne off Wickham Road and in Cocoa off SR 524. Chairman Scarborough inquired about the price ranges; with Mr. Enos responding he does not know, but basically they would be between $80,000 and $100,000.

Commissioner Higgs inquired if The Viera Company has to meet a certain percentage of affordable housing in the DRI, and how many units of affordable housing has to go in the DRI east; with Mr. Kamal responding to the best of his recollection there was a requirement to do some studies; but he is not sure the Development Order listed a percentage of units that had to be affordable housing. He stated the requirements for the studies were done as part of the original DRI which would cover the east side.

Chairman Scarborough inquired who would those units be marketed to, and will the current residents see a different type of clientele moving into Viera; with Mr. Kamal responding there is a different clientele and different product mix; and there are young families and older retirees who would buy 40-foot lots. A representative of The Viera Company added first-time homebuyers; and stated they will build a product similar to what is proposed for the north side of the golf course; it will be upper end; they have done a good job with buffering and landscaping, opaque screens, etc.; and they are looking at two-car garages, twin mailboxes, street scape, and deed restrictions. He stated the 40-foot lot product can be done very well.

Commissioner Carlson inquired if they have done anything like it in any other part of the DRI; with the representative responding they finished a subdivision on the north part of the golf course where the house product is just five feet wider than what would be on a 40-foot lot; they had presales; and across the fairway they are building $200,000 plus tile-roof homes and have no sale resistance. He noted being a large project, they have to deal with the different markets. Commissioner Carlson stated she is not comfortable with 40-foot lots and prefers at least 50 feet. Mr. Kamal stated they talked about buffering different communities; it is in their best interest to provide buffering; some residents of Six Mile Creek are concerned; and they are open to creating a buffer parallel to Crane Creek Boulevard, a vegetative buffer along that corridor, which would separate the project from the existing community. He stated it could be a mix of vegetation and stormwater facilities.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to approve Item 12, deny waiver for 40-foot lots and approve 50-foot lots, and table the PIP property to March, 2000 as recommended by the P&Z Board. Mr. Kamal stated that is not what they want; they addressed the issues, decreased the density to minimize impact to adjacent communities, and offered additional buffering along those areas; and those addressed the compatibility issues. He stated they are glad the Board is happy with the rest of the plan, but they feel they addressed the issues with the 40-foot lots; and requested the Board reconsider the waiver.

Chairman Scarborough called for a vote on the motion. Motion carried and ordered unanimously.

Item 13. (Z9905407) Donald N. Molitor, Trustee, and Judith M. Molitor's request for CUP for towers and antennas (replacement tower, 430 feet total height) in BU-2 zoning classification, currently having an SUP for radio tower, on 17.67? acres located on the south side of Parrish Road, west of Range Road, which was recommended for approval by the P&Z Board.

Commissioner Higgs inquired what is the technical necessity; with Mr. Enos responding it is an existing tower and they want to replace it and add to the height. Commissioner Higgs inquired if the Board needs technical necessity; with Mr. Enos responding yes.

Karen Seggerman, representing American Tower Corporation, advised the request is a result of Southern Communications' request to go on a tower with a higher height than they have to attach antennas for WHKR which is currently located in Titusville and just finished going through the process of becoming the secondary emergency action response system in Brevard County. She stated where they are located now they cannot reach the southern half of Brevard County; they need to move their antennas to a more central location; and she has a graphic that illustrates that. She explained the coverage areas depicted on the graphic; stated currently the emergency action response system comes out of Orlando, and often Brevard County is notified of emergencies not specific to its area; so the Committee requested radio stations to take up emergency action in Brevard County, so people would not be notified of emergencies outside of the County.

Commissioner O'Brien advised the Board gave permission for an antenna just south of Cocoa two years ago for a radio station; they wanted a new and higher antenna, and the Board allowed it; and it is not that he does not want the citizens of Brevard County to be well served, especially for emergency services, but some of the towers are pretexts for other uses. He stated there may be antennas out there that can be used rather than going this route.

Commissioner Higgs inquired if there are other antennas in the area; with Ms. Seggerman responding not to her knowledge. She stated they were approached by the applicant; and since making application, have been approached by AT&T and Maritel Communications that serve the Coast Guard and Marine emergency services, requesting to go on the tower because they need the entire height.

Commissioner Carlson stated in the past the Board received a list of other towers when it had a tower issue to consider. Commissioner Higgs stated the County had a consultant who was evaluating the necessity of towers. Assistant County Manager Peggy Busacca stated they have a consultant on a continuing contract. Commissioner Higgs stated she does not have a report on the tower that would help her know it is necessary; with Ms. Busacca responding staff has used consultants as the Board directed; if it is the Board's intent that the consultant review all tower applications, that was misunderstood by staff; but they will be happy to do that from now on. Commissioner Higgs stated towers have to be treated on a level playing field, and not letting the consultant evaluate it for technical necessity would be inconsistent with the way the Board has done others. Ms. Seggerman advised her concern is that the tower needs to be in place to be turned on by September. Commissioner Higgs stated Ms. Seggerman has not demonstrated, to her satisfaction, the technical necessity to conform to the Code; and all she has done is draw some circles that do not give solid evidence saying it is technically necessary.

B. B. Nelson advised he is not involved with this tower, but Ms. Seggerman presented technical necessity to transmit for the Coast Guard and other offshore uses that need the additional height. He stated the Board must take a different approach to towers and realize they need additional height to get offshore to do emergency services; and Ms. Seggerman did present the need for the tower and increased height. He stated there will be more coming for additional height; and advised of his 50-year lease for an antenna tower which will be coming to the Board for additional height for offshore transmissions and emergency services. He stated cell phones can be served with 150-foot towers, but they do not have decent coverage in Brevard County; and with all its technology, Brevard County should have service from one end of the County to the other for all cell phone operations. Mr. Nelson advised the consultant the Board hired recommended putting all antennas on power polls which could kill people; that consultant is no longer with the County; and all he wanted to do was eliminate towers by putting antennas on power polls. Mr. Nelson stated there will be more antennas for emergency needs, offshore needs, and radio needs.

Commissioner Voltz inquired if staff requests people give technical necessity with some depth. She stated it is obvious Ms. Seggerman thought that is what she did, but that is not what she is hearing the Board is asking for; and inquired how that dilemma can be solved to prevent people from having to come back time and again. Mr. Enos stated there is no standard for what technical necessity is; all it says is the applicant must demonstrate technical necessity for the location of the tower and there are special existing or proposed circumstances pertaining to the structure or properties involved which would protect the public interest which the conditions are intended to address; and the applicant shall prepare an exhibit which will demonstrate to the Board the visual impact of the proposed tower.

Ms. Busacca inquired, since there is a consultant on board, could staff say it is Board policy that all applications go forward to the consultant who will be able to determine if technical necessity has been demonstrated; with Assistant County Attorney Eden Bentley responding from a legal standpoint staff can do that.

Chairman Scarborough advised of the application for a tower in District 3 and this application for replacement of a tower with additional height; and stated replacement towers need to show why they need the additional height and not so much the location because they already provide service at that location. He stated if the additional height will add others who do not have to have another tower, that should fortify the request and accomplish a purpose. He advised what the consultant provided was recommendations for rules that could be promulgated; and suggested asking the consultant to help promulgate rules of what is technical necessity. He stated if an applicant provides an analysis and it appears questionable, then the Board can send it to the consultant; but it should not send every application to the consultant, because some applicants may provide good information that they paid for, and do a good job with the presentation.

Commissioner O'Brien inquired if there is another antenna within a mile of the present tower; with Ms. Seggerman responding not at a higher height, but there are some in the surrounding area at 250 feet. Commissioner O'Brien inquired if there is one for an AM radio station; with Ms. Seggerman responding it is to the southeast and from the ground estimates they made, it is about 280 feet. Commissioner O'Brien inquired if they want to go to 430 feet; with Ms. Seggerman responding that was a specific request from WHKR which needs additional height to do what they need to do. Chairman Scarborough stated that is the data the Board needs, to see why it will or will not work. Ms. Seggerman stated the WHKR representatives would have liked to be here to explain that to the Board had they known it was going to be an issue; and if it is tabled, it will put them behind schedule.

Commissioner Voltz stated the Board does not have a definition of technical necessity which presents a problem; Ms. Seggerman thought she presented technical necessity and did what she thought was proper; so the Board needs to define technical necessity. She inquired if it can come back at a regular meeting; with Mr. Enos responding the Board can table it to whenever it wishes. Commissioner Voltz stated that is five weeks if it comes back in July. Ms. Seggerman stated if that is the Board's choice, they will do their best to accept it; they can get the technical information in a few days and develop what the Board wants; but she will explain to WHKR that the Board does not understand why the height is needed. Commissioner Voltz stated the Board will meet on Monday and Tuesday if Ms. Seggerman can come back in a few days.

Commissioner O'Brien stated he wants an inventory of all the towers within five miles of the subject tower and the height of each of those towers. Ms. Seggerman inquired if staff keeps an inventory of towers; with Mr. Enos responding they have an inventory but he is not sure they have the heights. Commissioner O'Brien stated necessity means it will not go any place else except on that tower within reason; and five miles is within reason.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to table Item 13 until the Board of County Commissioners meeting of May 25, 1999. Motion carried and ordered unanimously.

Chairman Scarborough inquired if the Commissioners were happy with the consultant; with Commissioner Voltz responding no. Ms. Busacca advised the other consultant was one time only and they have a different consultant.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to instruct the consultant to promulgate rules for technical necessity. Motion carried and ordered unanimously.

Item 14. (Z9905501) W. H. (Jr.) and Rebekah F. Minor and Sergio A. Sobredo and Julie M. Rondolino-Sobredo's request for change from RU-1-9 to RR-1 on 0.85 acre located on the west side of New York Street, south of Miami Avenue, which was recommended for approval by the P&Z Board.

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

Item 15. (Z9905502) Harold Calvin Platt's request for change from GU to AGR on 10.2? acres located south of Malabar Road, west of Melbourne-Tillman Drainage Canal, which was recommended for approval by the P&Z Board.

Motion by Commissioner Voltz, seconded by Commissioner O'Brien, to approve Item 15 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 16. (Z9905503) Rothman Investments Florida, Ltd.'s request for Small Scale Plan Amendment that proposes to change the Future Land Use Map designation from residential to mixed use district; and a change of classification from RU-1-7 to BU-1 on 4.34? acres located on the east side of Seminole Boulevard, south of U.S. 192. The LPA recommended approval of the Small Scale Plan Amendment; and the P&Z Board recommended approval of the zoning change with a binding development plan limiting area south of Lots 23 and 40 for retention only.

Commissioner Voltz advised her concern is the mixed use district going farther back into the residential area; and she understands it going back next to the BU-1, but not that far back. She stated they agreed to leave the back area natural for buffer and retention; and they own the property behind it.

Doug Robertson, representing the applicant, advised the request is to extend the mixed use district to allow Kane's to build a new furniture store. He stated the stormwater retention will be put in the back, but they need BU-1 because that facility has to be in the same zoning classification. Commissioner Higgs inquired if Mr. Robertson is not making a commitment; with Mr. Robertson responding the two homes are several hundred feet to the east, so there is no direct impact to those homes, and there were no objections from them.

Motion by Commissioner Voltz, seconded by Commissioner O'Brien, to adopt Ordinance approving Small Scale Plan Amendment 99S.2 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 XVIII(G), entitled the Future Land Use Map Appendix; and provisions which require amendment to maintain internal consistency with the amendments; providing legal status; providing a severability clause; and providing an effective date, for Rothman Investments Florida, Ltd., as recommended by the LPA; and approve zoning change with a binding development plan limiting area south of Lots 23 and 40 for retention only, as recommended by the P&Z Board. Motion carried and ordered; Commissioner Higgs voted nay.

Item 17. (Z9905504) Louis Richard Mazzaferro, Louis Joseph Mazzaferro, and Sorgini and Sorgini, P.A.'s request for Small Scale Plan Amendment that proposes to change the Future Land Use Map designation from residential to mixed use district; and change of classification from AU to BU-1 on the southerly 550 feet, and BU-2 on the northerly 550 feet of 4.29 acres located on the north side of U.S. 192, west of Wickham Road. The LPA approved the small scale plan amendment; and the P&Z approved the rezoning with a binding development plan.

Commissioner Voltz advised of her concern with extending the Mixed Use District (MUD) the entire length of the property as it is out of character; and if it was extended 450 feet, which is the depth of the most northerly part of the BU-1 on the left, it would change 1.7 acres and leave the rest as AU. She inquired if there is a problem with that; with Rochelle Lawandales, representing the applicants, responding yes. Ms. Lawandales advised Lowe's goes to a depth of 1,200 plus feet; the MUD designation criteria within the Comprehensive Plan allows for it to be extended 700 feet beyond the current limits, which is 300 feet from what they figured; and adding 700 feet would take it to 1,000 feet. She stated they demonstrated, in the packet provided to the Board, how they meet that criteria. She stated they will consent to a binding development plan (BDP) because there are unique features on the property and characteristics that have some physical or manmade boundaries. She explained a map, and noted the property abuts a very large borrow pit and the piece next to her clients' property is zoned BU-1 to its depth. Commissioner Voltz stated she missed the BU-1 property that went all the way back. Commissioner Higgs stated the MUD does not go all the way back. Mr. Enos advised the BU-1 to the west is not consistent with the MUD. Ms. Lawandales advised to the rear is a retention pond; the three buildings will actually only go to a depth of 800 feet; and the MUD could be applied to the 800 feet to accommodate the uses that her clients would like to put on the property. She stated they will stipulate to a BDP of not using the property to its depth and putting the retention area in the rear. Commissioner Voltz inquired how far back would that be; with Ms. Lawandales responding about 300 feet calculated by rule of thumb at 25% of the site.

Commissioner Voltz inquired how far back does the MUD go; with Planner II Todd Corwin responding the MUD in that area is about 300 feet in depth. Commissioner Voltz inquired about the depth of the MUD to the west; with Mr. Corwin responding to the west where there are two MUD expansions, it is approximately 450 feet, and west of that is approximately 800 feet. Ms. Lawandales stated Lowe's is to the east; with Commissioner Higgs responding Lowe's is on the other side of the street. Ms. Lawandales stated she mentioned it because it is indicative of the characteristics that are taking place along U.S. 192. Commissioner Voltz inquired if the line is a street or boundary line where it is 800 feet; with Mr. Corwin responding the line may be a section line; the second MUD boundary expansion is almost to Fitzgerald's Furniture Store; and the 800 feet will be in the general area of the store. Commissioner Voltz inquired if the MUD is extended 800 feet, will they be able to put the retention pond on the back or will it require another zoning classification; with Mr. Enos responding traditionally the retention ponds, parking lots, and all support facilities for commercial have to be zoned commercial. Ms. Lawandales stated that is why they will stipulate to the BDP. She stated with the property being long and narrow, they do not enjoy the marketability of the frontage; it is 165 feet wide; with the borrow pit in the back, there is no real opportunity or market to develop residential units back there; and it is currently a functioning pit.

Ron Bolding with Mattress Barn, advised the back of the property is only two feet from the borrow pit on the northeast side; they cannot drive around there and there is nothing back there other than a 30-acre borrow pit. He stated to the east is the bait shop with cranes, big heavy machinery, and dirt piles; and he does not understand not going back that far when the property next to it goes all the way back. Commissioner Voltz stated the MUD does not go back that far; with Mr. Bolding responding it is BU-1; and if there was residential possibilities he could understand it, but it is a borrow pit and there is nothing else. He noted the borrow pit would not be continued if he buys the property.

Motion by Commissioner Voltz, to approve Item 17, extending the MUD 800 feet, and with a BDP providing for the back 300 feet to be retention only.

Chairman Scarborough inquired if staff would be happy extending the MUD 800 feet all the way down that entire area; with Mr. Enos responding it would double the commercial depth in that area; and he would be concerned about the impacts on U.S. 192 which is already at 90% capacity. Chairman Scarborough inquired what is the borrow pit being protected from; with Mr. Enos responding the concern is not the borrow pit but the residential project to the east. Commissioner Voltz stated there is nothing behind this property; there are residences on Kathryn Street, but that is much further west; and this project would not impact them.

Commissioner Higgs stated if the MUD is approved for this property, the one on the east would want it and then it would be into the single-family area. Commissioner Voltz stated the contiguous lot is AU, but if the MUD is extended 800 feet on the other parcel it would run into the neighborhood; so the Board would be setting a precedence by approving 800 feet for this property. Ms. Lawandales advised the bait shop is AU with BU-1 on the front; there is a vacant piece of property that runs next to the parcel with the bait shop; then there are the rear of houses that front on Kathryn Street. Ms. Lawandales stated she is sensitive to the issues; by accommodating property lines the County can plan better each piece of property; and the site design criteria and other land use criteria would give the County the ability to protect the neighborhood from adjacencies and precedent issues.

Commissioner Voltz stated there is no incompatibility issue with the request because there is nothing behind the property; it is BU-1 that goes back to the borrow pit; so if someone requests the same thing on the other parcel there would be an incompatibility issue. Ms. Lawandales stated the MUD criteria and extension policy says it can be extended 700 feet beyond the current limits which would take it to 1,000 feet; that is within 118 feet of the rear of the property if they meet certain criteria; and looking at boundary issues and adjacency issues, there is a good argument that the property is suitable for that criteria and zoning.

Mr. Corwin advised when staff measures the map, they measure from the middle of the roadway, so the actual MUD going back would be less than that. He stated if the Board wants it to be equal to the depth of the parcel to the west, that would give staff more latitude in matching it up on the map.

Commissioner Voltz amended the motion to extend the MUD to be equal to the depth of the parcel to the west rather than 800 feet.

Ms. Lawandales inquired if they could put the retention pond pass the boundary line; with Commissioner Voltz responding as long as they have the same zoning on the property. Ms. Lawandales stated they requested BU-2 on the rear of the property from 500 plus feet back; that was predicated to the idea of having the MUD extended the full depth of the property; and if the MUD does not go the entire depth, that would preclude the BU-2 being applied to the back and leaves 300 feet of dead space on her clients' property. Commissioner Voltz stated if it is for retention it will be dead space anyway. Ms. Lawandales stated she understands they would have a piece that would remain AU then would have to put the 300 feet of retention area. Mr. Enos stated they need the MUD to get BU-1 or BU-2 all the way back. Commissioner Voltz requested staff's recommendation; with Mr. Enos responding anything beyond 450 feet to the west would set a new precedent for depth; and requested the Board be careful about that.

Chairman Scarborough recommended 450 feet. Commissioner Voltz stated they said 450 feet will not help. Mr. Bolding stated he will not buy the property if it is only 450 feet. Chairman Scarborough stated sometimes there are better places, and Mr. Bolding could look for another location. Mr. Bolding reiterated there is nothing that can be put on the back of the property, the borrow pit has been in operation over 40 years; and the land is ugly. Chairman Scarborough stated sometimes borrow pits have homes with docks on them; with Mr. Bolding responding not this one. Mr. Bolding stated the borrow pit goes on both sides of the property; there is nothing that can be behind the property, and nothing to the left or right; and the property next door goes all the way to the borrow pit. He stated the person who owns the bait shop owns the property and the borrow pit; and if the MUD is not extended, he will not buy the property because it will not allow him to do what he wants to do. He stated if there was residential behind it, he could understand, but there is nothing that can be done on the property, so he does not understand why they are being stopped. He stated if the Commissioners went to look at the property, they would appreciate what he is saying; it is an ugly piece of property with a billboard on it that would come down if he bought it, and hopefully the person would stop digging the pit; and nothing can go in there unless the Board wants a driving range on U.S. 192. Ms. Lawandales stated the application comes to the Board with a unanimous recommendation from the P&Z Board and Land Use Citizens Resource Group. Commissioner Voltz stated she supports the application but will have to make a motion to deny.

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to deny small scale plan amendment and rezoning for Item 17. Motion carried and ordered; Commissioner Voltz voted nay.

Ms. Lawandales inquired if the Board can offer an alternative for the site; with Chairman Scarborough responding the item has been denied; and Ms. Lawandales can talk to Mr. Enos about other alternatives.

Item 18. (Z9904105) C. R. Powell, Trustee's request for CUP for security trailer (renewal) in AU zoning classification on 40.34? acres located on the south side of Stuckway Road, west of Jabez Road, which was recommended for approval by the P&Z Board.

Terry Rosenberger advised he owns the adjacent property, and his concerns, at the time he wrote the letter in opposition, were the present structure, no access for other property owners, including him, and not knowing who put the gate up and blocked the area. He stated it has changed since he heard the commentary at the P&Z Board meeting for the security needs, but his primary concern is access. He stated he wrote to C. R. Powell regarding driving out there and accessing his property and concern about the security guard; and he proposed an opportunity to meet and get acquainted primarily for identification purposes. He stated he understands the gate is for the asphalt operation, but it denies other property owners access beyond it; it is private property and not Stuckway Road because Stuckway Road ends maintenance-wise at Jabez Road.

Chairman Scarborough inquired if Mr. Rosenberger's concern is access; with Mr. Rosenberger responding yes.

Raymond Chasteen advised he lives at the facility and just bought the property from C. R. Powell; he does not own the gate but owns a little piece of property where the asphalt company is and some property out back where he goes fishing; he has a combination to the gate, but he did not put it up; and the security he needs is for his fish farm operation and not to watch other people's properties.

Discussion ensued at length on locations of the properties owned by Messrs. Chasteen, Powell and Rosenberger, the gate, easements, the temporary asphalt plant, Cow Creek Ranch, security, and administrative extensions of CUP's for security trailers.

Chairman Scarborough stated the Ordinance was written in 1991 providing a conditional use permit for security trailers for temporary purposes to alleviate an urgent need and allow time for construction of permanent facilities; in some remote areas permanent facilities would not be necessary; and there needs to be some flexibility in the rules so a person does not have to spend $30,000 for a security building when it is not economically feasible to put in more substantial structures. Mr. Enos stated in AU they can have a mobile home as a permanent residence if they have at least ten acres, but it has to set back 200 feet from the property line, and he may not be able to meet that.

Chairman Scarborough passed the gavel to Vice Chairman Higgs.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Item 18 as recommended by the P&Z Board. Motion carried and ordered; Commissioner Higgs voted nay.

Vice Chairman Higgs passed the gavel to Chairman Scarborough.

PUBLIC HEARING, RE: ADMINISTRATIVE REZONING OF MAY 3, 1999

Chairman Scarborough called for the public hearing to consider administrative rezoning as recommended by the Planning and Zoning (P&Z) Board at its public hearing on May 3, 1999, as follows:

Item 1. Section 10, Township 23, Range 36, Parcel 753, owned by Hawkins Enterprises, Inc., from SR to RR-1, which was recommended for denial by the P&Z Board.

Motion by Commissioner O'Brien, seconded by Commissioner Higgs, to deny Item 1 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Items 2a-f. Section 10, Township 29, Range 38, Parcels 3, 3A-3D, 4 and 4A, owned by American Financial Life Ins. Co., Harvey C. and Linda Eads, Jr., C. Shelton and Marcia C. James, Richard H. and Donn Samolewicz, Donald R. Lee and Antonette J. Cleveland, and Way and Tracy Adams, from EU, SR and RU-2-10, to RU-2-4, which was recommended for approval by the P&Z Board.

Motion by Commissioner Higgs, seconded by Commissioner Voltz, to approve Items 2a through f as recommended by the P&Z Board. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING SECTION 62-1901, GENERAL CONDITIONS FOR CONDITIONAL USE PERMITS

Chairman Scarborough called for the public hearing to consider an ordinance amending Section 62-1901, providing general conditions for conditional use permits.

Attorney Leonard Spielvogel advised the proposed ordinance almost goes to the other extreme; and it will make it difficult for lawyers to tell clients whether or not they are going to be entitled to a conditional use permit. He stated page 4, Item c, says, "The proposed use will not cause a substantial diminution in value of abutting residential property. A substantial diminution shall be irrebutably presumed to have occurred if abutting property owners suffer 10% reduction in value

as a result of the proposed conditional use. A reduction of 5% of the value is a rebutable presumption. . ."; and inquired how will that be determined. He stated it also says, "The Board of County Commissioners carries the burden to show that a substantial diminution in value would occur." He stated it does not say how the County will arrive at the loss of value; and inquired if an MAI appraisal would be required or will the Property Appraiser make that determination. He noted if people are upset about a proposed use, their panic can cause a reduction in value. Mr. Spielvogel advised he represented the Board of Realtors in Central Brevard for over 25 years; they can find a real estate broker to come to the Board and say the property is going to suffer 25% loss of value; and if someone comes before the Board with credentials and says it is 15% loss in value, the Board has the burden; and once it goes beyond the 10% that is irrebutable presumption; so without knowing what credentials the Board is going to require, any jack rabbit can come in and profess to expertise. He stated if the idea is to win in court, it will be very helpful because it gives the Board a lot of discretion; but if the preference is to have some stability in the law so they can advise their clients and people will know what their rights are, then the language does not help. Mr. Spielvogel advised page 6, Item 2, talks about revocation which really concerns him; it says, "The Board shall have the authority to modify or revoke a previously granted conditional use permit where there has been development, construction, or implementation of the conditional use."

Chairman Scarborough advised Mr. Spielvogel's time has expired; and inquired if the Board wants to allow additional time. Commissioner O'Brien stated he wants to meet with Mr. Spielvogel and go over his ideas which the Board has not heard fully, and bring it back to the Board like the changes to the wetlands amendment. Commissioner Higgs stated she wants to hear Mr. Spielvogel's presentation. Commissioner Voltz stated because of the pending Lane Kendig presentation on performance base standards, the Board should address this ordinance after that meeting. Ms. Bentley advised she has a problem with page 6 as well. Chairman Scarborough inquired if staff sees any reason to wait until it holds a meeting with Mr. Kendig; with Assistant County Manager Peggy Busacca responding if the Board would consider fundamental changes as to what would be a CUP, then it may wish to put this off. She stated because of the short time-frame, it would not be a complete rewrite of the industrial zoning classification. Chairman Scarborough inquired if it is a time-sensitive item; with Ms. Busacca responding no, it was directed by the Board based on some of its experiences with CUP's in the past. Commissioner Higgs stated it needs to be done; with Chairman Scarborough responding the question is if it has to be done this evening, as Commissioner O'Brien asked for time to discuss it with Mr. Spielvogel, and he has questions about what it will do. Commissioner Carlson suggested Mr. Spielvogel put something together in writing for all Commissioners and table the public hearing until the first meeting in July. Commissioner Higgs suggested staff look at the decibel levels for night and day uses.

Jay Decator with The Viera Company, advised he is in favor of the ordinance; it is a proactive tool to protect and enhance the quality of life in Brevard County; however, there are three areas they would suggest modifications to. He stated the first is the general and specific standards of review for certain effects on adjoining and nearby neighborhoods; in the ordinance it refers to glare, noise, and odor; and they would like to add particulates and other emissions.

Chairman Scarborough recommended Mr. Decator do the same as Mr. Spielvogel, so he can read it and call him to meet on his recommendations. He stated the Board will be off during the month of June, and it will be July before it will consider it.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to continue the public hearing on an ordinance amending Section 62-1901, General Conditions for Conditional Use Permits, until July 27, 1999. Motion carried and ordered unanimously.

Commissioner Higgs inquired what Mr. Decator wished to modify in the ordinance; with Mr. Decator responding adding particulates and other emissions that would be considered by the Board; revocation or modification of previously issued CUP's; and the effect on general health, safety and welfare which is only considered where a CUP has been issued, but is absent in the consideration of CUP's where the use is then in effect. He stated it seems that health, safety and welfare should always be a factor especially in an ordinance. He noted he will follow up with a memorandum.

Upon motion and vote, the meeting adjourned at 9:39 p.m.

ATTEST:

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

SANDY CRAWFORD, CLERK
(S E A L)