May 23, 2002

The Board of County Commissioners of Brevard County, Florida, met in regular session on May 23, 2002, 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, Susan Carlson, and Jackie Colon, Assistant County Manager Peggy Busacca, and Assistant County Attorney Eden Bentley.

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

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

APPOINTMENT, RE: ZONING BOARD OF ADJUSTMENT

Motion by Commissioner Colon, seconded by Commissioner O’Brien, to appoint Dale Young to the Zoning Board of Adjustment replacing Kevin Smith, with term of appointment expiring December 31, 2002. Motion carried and ordered unanimously.

PERMISSION TO ADVERTISE PUBLIC HEARING, RE: HOMELESS ORDINANCE

Motion by Commissioner Colon, seconded by Commissioner O’Brien, to grant permission to advertise a public hearing for July 23, 2002 to consider an ordinance concerning the homeless. Motion carried and ordered unanimously.

Commissioner O’Brien stated there will be a large turnout for the ordinance, and inquired if it is possible to have a time certain in the morning for the item; with Chairman Scarborough responding affirmatively.

PUBLIC HEARING, RE: PLANNING & ZONING BOARD RECOMMENDATIONS OF
APRIL 8, 2002

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 April 8, 2002 and tabled by the Board of County Commissioners on May 2, 2002, as follows:

Item 2. (Z0204104) Statewide Materials, Inc.’s request for CUP for land alteration in IU zone on 12.28? acres located north of Golden Knights Boulevard, east of TiCo Road, which was recommended for approval as an expansion of the existing borrow pit.

Zoning Official Rick Enos stated staff received a letter from the applicant requesting the item be continued to the August 1, 2002 Board of County Commissioners’ meeting.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to continue Item 2 to the August 1, 2002 meeting as requested by the applicant. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE SETTING FORTH SIXTH SMALL SCALE PLAN
AMENDMENT OF 2001, 01S.6

Chairman Scarborough called for the public hearing to consider an ordinance setting forth Sixth Small Scale Plan Amendment of 2001, 01S.6.

Planner Todd Corwin stated the applicant sent a letter to staff this afternoon requesting the public hearing be continued.

Commissioner Higgs stated the item has been on the agenda approximately four times; and she will make a motion to continue the public hearing one more time, but will not ask the Board to do it again.

There being no objections heard, motion was made by Commissioner Higgs, seconded by Commissioner Carlson, to continue the public hearing to consider an ordinance setting forth the Sixth Small Scale Plan Amendment of 2001, 01S.6 to the August 1, 2002 meeting.

Assistant County Manager Peggy Busacca inquired since the item has been continued frequently, does it need to be readvertised; with Assistant County Attorney Eden Bentley responding negatively.

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

REPORT, RE: SHERIFF’S OFFICE

Commissioner O’Brien stated his agenda package includes a report from the County Manager concerning an item from the Sheriff’s Office.

Assistant County Manager Peggy Busacca stated the item will not be heard this evening, as the issue has been resolved.

Item 1. (Z0204301) Leonard D. and Desiree A. Hearndon’s request for change from AU, RU-1-11, TR-3, and PUD with an existing CUP for water treatment plant to all AU, removing existing CUP on 15.14? acres located on the south side of Senne Road, west of U.S. 1, which was recommended for approval by the P&Z Board with a Binding Development Plan (BDP) on only those properties currently zoned RU-1-11, TR-3, and PUD, and with agreement that the owner meet with surrounding property owners to agree upon the limited uses.

Chairman Scarborough inquired is there a new BDP on the item; with Attorney Victor Kostro responding affirmatively.

Attorney Victor Kostro, representing the Hearndons, provided a revised BDP to the Board and Clerk; stated attached to the BDP is a plot plan; the applicants are requesting a rezoning from TR-3 to AU; and he had discussions with Mr. Enos and worked with him on the BDP. He noted Paragraph 3 includes a vegetative buffer, which will extend along the entire south border; and the property owners have agreed to a list of restrictive uses for the property contained on Exhibit B.

Commissioner Higgs requested Attorney Kostro read Exhibit B for those members in the audience who do not have the Exhibit. Attorney Kostro stated Exhibit B includes a listing of permitted uses in the AU zoning classification which shall be prohibited on the portion of property being rezoned from TR-3; and those items include private camps; foster homes; group homes levels I and II; churches; fish camps; landscaping business; sanitariums and convalescent homes; packing, processing, and sale of commodities raised on the property; and dude ranches. He noted the following permitted uses shall be further restricted on that portion of property rezoned from TR-3: grazing and raising of animals, fowl, or bees limited to one per acre; plant nurseries (no retail sales); and private golf course for personal use only. Commissioner Higgs stated the only changes from the BDP faxed earlier are the RU-1-11 on the first page in the Recitals and clarification at the bottom of Page 1, Item 3, where the PUD is included; with Attorney Kostro responding that is correct, plus the insertion of “vegetative” for the buffer. Commissioner Higgs inquired if the BDP that she reviewed with Attorney Kostro and the two representatives from Snug Harbor is consistent with the BDP before the Board; with Attorney Kostro responding affirmatively.

Marie Bergamini, representing Snug Harbor Community Association, stated the Association was concerned about the golf course and the grazing and raising of animals; it did not want the animals abutting Snug Harbor; the AU zoning restrictions go with the TR-3 zoning; and inquired if the rest of the AU zoning comes under any restrictions, and how far do the restrictions go. Commissioner Higgs responded the restrictions are only as prescribed in the BDP in regard to the buffer. Attorney Kostro stated the restrictions would only apply to the property that is being rezoned from TR-3; the other portion of the property is already zoned AU; the subject of the BDP concerns TR-3; and the map Ms. Bergamini is referring to shows the Snug Harbor property, which is listed as TR-3. Ms. Bergamini stated she was under the impression that once the AU zoning is put into effect, all of the property would be AU zoning. Commissioner Higgs responded that is correct and is the request that has been made; and all of the property that is described as RU-1-11, TR-3 or PUD is being changed.

Commissioner Higgs explained the map to Ms. Bergamini. Ms. Bergamini noted she understands the requested zoning and restrictions now. Commissioner Higgs stated the buffer across the southern boundary of the applicants’ property and the BDP will address issues of potential incompatibility; the property in the middle is existing AU zoning; and she will move the item with the BDP.

Motion by Commissioner Higgs, seconded by Commissioner Colon, to approve Item 1 as recommended by the P&Z Board with the BDP.

Chairman Scarborough inquired does the Board want to use any description for the vegetative buffer, such as opaque or the nature of the vegetation; and noted otherwise, there could be a vegetative buffer that may not be a buffer. Commissioner Higgs inquired if the vegetative buffer would be opaque; with Attorney Kostro responding affirmatively.

Commissioner Higgs amended the motion to include opaque vegetative buffer, and Commissioner Colon accepted the amendment.

Chairman Scarborough called for a vote on the motion, as amended. Motion carried and ordered unanimously. (See page for Binding Development Plan.)

Item 3. (NMI20401) Anthony and Jenny L. Falanga’s request for Small Scale Plan Amendment (02S.4) to change Future Land Use Map designation from Planned Industrial to Residential (one unit per two and one half acres), and change from PIP to AU on 10 acres located on the south side of D’Albora Road, west of S.R. 3, which was recommended for approval by the North Merritt Island Dependent Special District Board, and the BCC review changing the current Planned Industrial Future Land Use designation to residential for those property owners in the area who express interest by submitting letters prior to the May 2, 2002 BCC meeting; and the Local Planning Agency (LPA) recommended approval of the Small Scale Plan Amendment as presented, and the BCC consider including a 40-acre Planned Industrial tract in an Administrative Large Scale Plan Amendment for residential classification.

Tony Falanga showed an aerial photograph of the property to the Board; stated since the 1940’s, the property has been primarily agricultural and an orange grove; in the early 1980’s, an investment group of Alabash and Gaburn tried to get investors to put in a Planned Industrial Park (PIP), but the venture failed; in 1995, Brian Belcher purchased the property from Mr. Gaburn; and he worked the land as an orange grove from 1995 until 1999. He noted in 1999, because of health reasons and his age, Mr. Belcher decided to get out of the orange grove business and proceeded to sell the property; and one piece of property was sold to Dr. Reddish and the second piece to Cecil Bryan. He stated in May, 1999, the County administratively rezoned property in the area; property owners were not aware of the rezoning; in 2000-2001, the remaining properties were sold in 10-acre blocks as agricultural property; and an additional 18 acres of property in the area were sold as single-family homes. Mr. Falanga noted the PIP zoned property is not conducive based on its compatibility with AU and residential uses on surrounding properties; there is plenty of industrial property in Brevard County; there is a buffer of pine trees; and the buffer at its widest point is over 100 feet, its narrowest point is at least 25 feet wide, and the trees are anywhere from 40 to 60 feet tall. He stated changing the zoning to AU will drastically reduce traffic on S.R. 3; D’Albora Road is County maintained and narrow with steep ditches on either side; the area is conducive for single-family homes; and there is potable water offsite and solid waste removal available. He noted there are no wetlands on the property; reiterated that due to its proximity to Kennedy Space Center, the area is conducive to single-family homes; it will reduce the impact to the school system; and the North Merritt Island Dependent Special District Board and LPA unanimously recommended approval of the Small Scale Plan Amendment. Mr. Falanga stated the property’s history is primarily orange groves; the one time that somebody tried to use it as industrial the venture failed; the 20-acre parcel is owned by Mr. Bryan; and Mr. Bryan has his orange grove up and working and has put in a 2,500-plus square foot home on his PIP zoned property. He noted Mr. Bryan was not aware at the time he purchased his property of the administrative rezoning; the Floyds are planning to build a house; and he and his wife plan to build their home in the area. He stated the Ruhlings own 20 acres, have started the upkeep on their orange grove, and built a barn; the McCormicks have a 10-acre tract and have built a pole barn; and Dr. Reddish removed the orange grove and replanted it with a persimmons orchard. Mr. Falanga stated the surrounding property in the area is conducive to AU and not PIP; from S.R. 405 east to Vectorspace, most of the property is industrial; less than 10% of the property has been improved or developed; and along the proposed property and the backside of it to the north 18 acres there is a wind break that was put in place years ago. He noted the wind break is pine trees that are from 150 feet wide to 25 feet wide, and 25 feet high to 60 feet high; he is not asking anybody to rezone their property that does not want to; and the buffer of trees, in addition to the required setbacks for PIP, which is 50 feet on the front, 50 feet on the side, and 25 feet on the rear, would provide an adequate buffer to reduce noise and light from the AU property. He stated the north 18 acres is S.R. 3 area; anybody who builds their home on S.R. 528, the Beeline, I-95, and S.R. 3 has to understand that there are going to be large vehicles driving down those roads; and inquired if somebody plans on building their home there knowing that, why would it matter what the zoning of the property is on the other side of the roads. Mr. Falanga noted according to staff, the traffic will decrease from 685 trips to 38 trips by going from PIP to AU; it will reduce the impact on S.R. 3 and the Barge Canal; the PIP density on the property allows one house per acre; and changing the zoning to AU will decrease the density to one house per two and one-half acres and reduce impact to the schools by almost three-fold. He reiterated that the LPA and North Merritt Island Dependent Special District Board recommended approval of the Small Scale Plan Amendment; stated the emerging pattern and surrounding property is Agricultural Residential; the property would be consistent with the Comprehensive Plan and compatible with Future Land Use; and the LPA has recommended that the Board consider rezoning of the PIP tract in an administrative large scale plan amendment back to the original residential classification.

Jenny Falanga stated she supports the rezoning; she and her husband plan on building a private residence on their property; and they want to keep the property private and secluded. She presented a letter from Pete Abate, a property owner who lives out of State, to the Board and Clerk; and read the letter as follows: “To Whom It May Concern: We have purchased a 10-acre parcel of land off of D’Albora Road on North Merritt Island, Florida. At the time of purchase, we assumed that our parcel and surrounding parcels of land were zoned agricultural. We are now aware that several parcels of land in the D’Albora Road area are zoned ‘Planned Industrial Park’ and the owners are trying to change the zoning to Agricultural. We support the rezoning effort because we plan on building a home on our property. Being adjacent to an industrial park zoned piece of land will enable neighbors to build facilities that decrease my property value and disrupt the natural environment. We look forward to building our next home on North Merritt Island and hope this matter can be resolved in favor of rezoning to Agricultural. Sincerely, Pete Abate.”

Jo Falanga stated she and her husband own 10 acres adjacent to the property in question; and supports the rezoning request. She noted they intend on building a home on their property and raising Sicilian donkeys; the area is safe; she has lived on North Merritt Island for the past seven years; and she agrees with the comments made by her son earlier concerning the buffers.

Douglas Waller stated he is a lifelong resident of Merritt Island; he strongly supports the rezoning request; and he and his wife want to be able to build their dream home, have horses for their children, and live in a secluded area with friends and family. He stated the ability to change the rezoning to AU will bring the area back to the way it was originally intended for North Merritt Island and will not affect the local area, homeowners, or property owners who are planning to use their property in a different way adjacent to the proposed area.

Chairman Scarborough inquired what is Mr. Waller’s property zoned; with Mr. Waller responding PIP. Chairman Scarborough inquired if Mr. Waller would prefer to have AU zoning on his property as well; with Mr. Waller responding that is correct.

Cecil Bryan stated he supports the rezoning request from PIP to AU; he owns 20 acres in the D’Albora area; he purchased his property from Mr. Belcher; and he assumed it was zoned AU since it was an orange grove. He noted he and his wife built on the property and have a nice home; and he does not want to see bad industries move in around them.

Charles Moehle, representing Modern, Inc., provided documentation to the Board and Clerk; stated he owns Parcel 504, which is bordered on the north by North Courtenay Parkway and on the south by D’Albora Road; he does not believe proper notification was given to adjacent property owners; 500 feet is considered from the property line and not from the center line; and it is significant when a large parcel is involved, particularly the impact of the stem, which requires notice to property owners within 500 feet. He noted performance based zoning problems also come into play; the documentation he provided also shows an area map of Kennedy Space Center, Parcel 504, and the area to be rezoned; he would like all of his comments and objections of the previous P&Z Board and Board of County Commissioners’ meetings be part of the Board’s consideration; he does not need to repeat them in detail and does not have time to do so; and the proposal before the Board is not good planning. Mr. Moehle stated the area has been planned for years of where an industrial use should be on Merritt Island; this is the area that was determined to be good planning; and it does not matter that there is plenty of industrial use around the rest of Brevard County as the area is adjacent to Kennedy Space Center. He noted it is not good planning to put residential next to an industrial area; no one objects to the people who want to build their houses or whatever they want to do that is allowed in the present zoning; and the main problem is the influence of performance based standards that the Board has been imposing for a couple of years, which is horrendous. He stated when the Board changes the property line and use, such standards become burdensome; the proposed area should be sustained in what it was planned to be; the stem should not be included; and it causes an undue influence. Mr. Moehle stated AU zoning is not compatible; concurrency has to be met when anybody wants to use their property; if people use their property for residential as opposed to PIP or anything else, it still has the same effect as they are reducing the burden on schools, roads, etc.; the property has been zoned for commercial or industrial use for many years; and the Comprehensive Plan recognizes that. He noted the Australian pines mentioned as a buffer is a non-native noxious plant that the County has plans to remove eventually Countywide; and such pines are not permanent buffers. He reiterated his objections to the rezoning request and the stem being included.

Chairman Scarborough requested the Assistant County Attorney address the stem and notice. Assistant County Attorney Eden Bentley advised the notice that is mailed is one of courtesy, so there is not any problem. Chairman Scarborough inquired whose property was not noticed; with Mr. Moehle responding his property.

Zoning Official Rick Enos stated Parcel 504 was noticed; the owner of record was Irvan at that time. Mr. Moehle inquired where was the notice sent; with Mr. Enos responding it was sent to William C. Irvan in Jasper, Georgia. Mr. Moehle stated Mr. Irvan advised him that he did not receive the notice. Attorney Bentley reiterated that the notice is courtesy and not required.

Commissioner Higgs inquired could the stem have a different zoning than the large parcel; with Attorney Bentley responding affirmatively.

Patricia Floyd stated she and her husband recently purchased property in the area in hopes of building their dream home in the next year; they support the rezoning request of AU; and they have three children who attend Brevard County schools. She noted her husband works for Kennedy Space Center and she is a school teacher; their property is more remote than where they currently live; and they want to have horses and live in a secluded area. She requested the Board’s support for the AU zoning.

Clay Ruhling read a letter to the Board from the Ruhling family, as follows: “Much as in the ‘old days’ when people went to ‘barn raisings’, we are here tonight to support our neighbors and fellow farmers in their petition to have applied to their property the agricultural zoning designation. This is imperative for the welfare of Jenny and Tony Falanga and their young family. It will also impact all the other families/property holders in the area. We are all planning to farm; and any change in the air, soil or ground water supply will be detrimental, if not fatal, to our groves, homes and families. After over ten years of searching all points of Brevard County, we, the Ruhling family, read an advertisement for property that was an abandoned citrus grove. Since we were planning to establish a grove, this seemed ideal. When we first went to see the property, we fell in love with the entrance on D’Albora Road. It is truly the way the Florida of my grandmother and mother’s youth looked. The road, even if for a short distance, is reminiscent of old Florida, a hammock of deep shadows, green and lush. There is such a wide variety of wildlife and so much diversity in each species. It is grand, though far too small. We looked at all parcels of land and discussed in detail the agricultural zoning of every parcel and were told that everything, including the land on both sides of D’Albora Road were zoned agricultural. It was all in trees, and the taxes would be too exorbitant if it did not have the agricultural zoning. We were also reassured that everyone buying land planned to farm it and that agricultural zoning existed or was ‘grandfathered in’ on every parcel. All of the grove land was in deep saw (bull) grass, Brazilian pepper, and various other choking weeds and vines, not to mention the mosquitoes. It is truly a labor of love for anyone to take on the trials of farming and the incredible amount of hard, dirty, dangerous work. People who have this courage and fortitude should be encouraged and assisted in their efforts. We are known for our Indian River Citrus, not our Indian River Industrial sites. We, as a Nation, State, and County, need to preserve as much of our grove/farm land as possible. We need to be self-sufficient and to inspire other people to conserve our land and our history. In Brevard County alone, we have thousands of empty buildings. Fly by night, strip the land and build because we can, it is cheaper than renovating an existing building. Oops, business was not as good as projected, so we will have to close up shop and move on. But the damage has already been done, the death knell for land, animals and air quality has already rung. We have far too few people like the Falangas, the Wilborns, the Bryans, the Bradleys, the McCormicks, the Abates, the Reddishs, the Carwells, and the Ruhlings. We need them all, and we need your help. Thank you. Carmel, Michael, Clay, Thea, and Xavier Ruhling.”

Janina Allen stated NASA is her neighbor and she likes it that way; there is a tree line between the two properties; she and her husband have done a lot of work to clear the property of Brazilian peppers; and they are trying to get the grove up and running. She noted they have full intentions of making it their retirement property and building a home in the future; and they support the Falangas and would also like to get their property administratively rezoned to AU.

David McCormick stated he owns 10 acres of property to the south of the Falangas; the property is zoned AU; he is in the process of building a house; and he supports the Falangas. He noted the 160 acres purchased from the Belchers is all engineered to drain together; the Falangas hold the key to the drainage of the property and has a pump station; it does not enter into the County system; and it has to be pumped into such system. He noted if the property is PIP, it will trap the water; and the other properties will have to figure out something else to do. He requested the Board’s approval of the rezoning request.

Mr. Falanga requested approval of his proposed request; stated an administrative large scale plan amendment also needs to be considered; and the homeowners present this evening want to live on their property and have signed letters in the files indicating they are interested in rezoning the property from PIP to AU. He noted it was mentioned that PIP was planned for the property due to proximity to the Kennedy Space Center; he disagrees with that philosophy; and it is a better proximity to people who live on Merritt Island and work at Kennedy Space Center to have their homes there. He stated he does not want to take any rights away from the surrounding PIP; the buffer with pine trees will reduce light and noise; he spoke with Suzanne Kennedy in Natural Resources Management Office; and Australian pines are not targeted for removal in Brevard County at this time. Mr. Falanga reiterated that the emerging pattern of the surrounding property development is AU; the property would be consistent and compatible with future AU land use; and the LPA and North Merritt Island Dependent Special District Board recommended the Board consider rezoning the PIP tract in an administrative large scale plan amendment back to its original classification of AU.

Commissioner Higgs inquired has Mr. Falanga submitted a BDP that would limit the number of units on the 10 acres. Mr. Falanga responded affirmatively and advised he has 15 acres and not 10 acres; due to the way the amendment was written, he had quite an expense to keep from having the administrative large scale plan amendment; and that is the reason for the stem. He stated he wishes to have all 15 acres rezoned; and the Small Scale Plan Amendment was suggested to him to save time and a lot of money. He stated the property was zoned for up to four homes; and he wants the option to have up to three potential homesites on the 10 acres. Commissioner Higgs stated it is her understanding on a flag stem that someone could not get three units. Mr. Enos responded the Falangas will probably only be able to get two units on the 10-acre parcel, depending on how wide the flag stem is; he assumes it is 25 feet; and if that is the case, the Falangas would only be able to get two units.

Chairman Scarborough stated in the past the Board decided that the area should be zoned PIP since it was next to Kennedy Space Center; he sees a whole new trend; the Board needs to define some lines; and inquired which direction does the Board want to go. Commissioner O’Brien stated the statements made tonight were compelling; the County made the plan to rezone the properties in 1999 to PIP; the present residents have indicated they do not want PIP; and the Board needs to do the right thing for the property owners and restore their rights. Commissioner O’Brien noted the Falangas own the stand of pines across the southern border of the property; with Mr. Falanga responding the pine stand is on the east side. Chairman Scarborough stated there is PIP on the other side of the proposed property; and reiterated that the Board needs to define the lines, where the PIP should stop, where the AU should begin, and how the County should go about the process of doing it in a comprehensive manner.

Commissioner O’Brien suggested the stand of pines be the dividing line between PIP and AU; stated it is a visual line and easily seen; the access to S.R. 3 is immediately available; and it is a natural pine stand and at some points are over 100 feet wide. He noted the stand of pines would act as a natural buffer; to go to AU limits future development to one unit per two and one-half acres; and that is the route the Board should take.

Chairman Scarborough inquired is Commissioner O’Brien suggesting that the Board change those properties zoned PIP to AU for those property owners who want AU zoning; with Commissioner O’Brien responding affirmatively. Mr. Falanga depicted the pine tree line on the map to the Board.

Commissioner Higgs inquired what is the measurement on the flag stem; with Mr. Enos responding 50 feet. Mr. Enos stated with 50 feet there can be two flag lots and access as many as two lots per flag lot stem; and the three units Mr. Falanga is requesting could be accommodated with the 50 feet. Commissioner Higgs inquired how is Parcel 504 affected in terms of any kind of performance standards on the PIP by the presence of AU on its border; stated if the County were to go to the parcel north of Mr. Falanga’s flag stem, the PIP parcel would be abutted fully on one side by an AU parcel; and inquired what happens in terms of buffers, etc. for the PIP parcel. She stated if the Board is going to take the path proposed by Commissioner O’Brien, it needs to be sure what the implication is on the PIP parcel as it could have profound affect on the usage; and if the Board is serious about the area developing as AU, it needs to be sure it has BDP’s that are strong in terms of restricting development. Commissioner Higgs stated she is not interested in supporting a proposal that subdivides all the property on flag stems and has different mechanisms for access which ends up with two and one-half acre ranchettes; if the Board is serious about people having 10 acres with groves, that is a different character than RR-1 with multiple things; and she would like to see further refinement of the proposal and the effect on PIP. Chairman Scarborough stated Mr. Moehle referred to the requirements of having abutting incompatible uses and how it is going to restrict the utilization of PIP; and inquired is there any way, outside of changing the Code, that the Board can deal with the issues. Chairman Scarborough noted there is another interest that wants PIP; but a conflict is going to occur once the County goes through all the properties, whether it rezones such properties as a whole or individually; and requested Mr. Enos elaborate on the issue. Mr. Enos stated there are several performance standards, two of which are affected by whether or not the adjacent or nearby zoning is residential or non-residential; and the noise standard changes from 75 decibels adjacent to industrial down to 60 decibels adjacent to residential during the daytime, and from 65 to 55 at night.

Assistant County Manager Peggy Busacca inquired is Mr. Enos referring to zoning or use; with Mr. Enos responding it is use. Ms. Busacca stated it would be irrelevant as it is residential use. Chairman Scarborough inquired are all performance zonings uses; with Mr. Enos responding negatively. Mr. Enos stated the only standard that would be affected is the lighting standard; it relates to zoning as opposed to use; the standard where adjacent to residential is two-tenths of a foot candle; and the standard where adjacent to non-residential is five foot candles. Chairman Scarborough stated the Board is going to revisit the area, and inquired is it Commissioner O’Brien’s intention to handle the Falangas’ item and ask for an administrative large scale plan amendment; with Commissioner O’Brien responding affirmatively.

Commissioner Carlson inquired if the Board decides to go forward with the large scale plan amendment, does it affect the flag lot issue. Ms. Busacca responded it takes approximately nine months to go through the large scale plan amendment process; and Mr. Falanga could have the Small Scale Plan Amendment approved tonight. Commissioner Carlson inquired is there an issue with building on the property; with Mr. Falanga responding affirmatively. Mr. Falanga noted the BDP states that he would not put any more than three homesites on the 10 acres; and his attorney advised him not to give up all of his rights.

Motion by Commissioner O’Brien, seconded by Commissioner Colon, to adopt Ordinance amending Article III, Chapter 62, of the Code of Ordinances of Brevard County, entitled “The 1988 Comprehensive Plan”, setting forth the Fourth Small Scale Plan Amendment of 2002, 02S.4, to the Future Land Use Map of the Comprehensive Plan; amending Section 62-501, Part XVI (E), entitled “The Future Land Use Map Appendix” and provisions which require amendment to maintain internal consistency with these amendments; providing legal status; providing a severability clause; providing an effective date; approve Future Land Use Map designation from Planned Industrial to Residential, and change from PIP to AU on 10 acres; and approve Binding Development Plan to include three units.

Commissioner Higgs stated if the Board is going to move forward with a number of rezonings and dividing the big lots into much smaller lots, it needs to ask the applicants if they would agree to two units as opposed to three units; it sets the Board down a path that the properties are going to be agricultural in nature; and five acres is different than dividing properties into smaller pieces. Chairman Scarborough stated the BDP includes three units; and Commissioner Higgs is requesting Mr. Falanga amend the Plan to two units. Mr. Falanga noted he needs to talk to his attorney. Commissioner Carlson stated Mr. Falanga can always come back to the Board and amend the BDP to add the extra unit if the Board does a large scale plan amendment. Commissioner Higgs noted Mr. Falanga needs to understand that if he agrees to the two units tonight, he would have to come back to the Board through the same zoning process to do it again.

Commissioner O’Brien stated where the Board is headed here is not fair to the present or future property owners; if it zones AU, it allows one unit per every two and one-half acres; if the property owners want to divide the 10 acres in the future into four separate lots for one house per every two and one-half acres, it is up to the owners to do that; and they are requesting not to be zoned PIP at this time, which was done by the action of the Board. He noted the property owners want their property back as AU; he sees nothing wrong with that request by the property owners; and what happens 30 or 60 years from now is not the problem. Mr. Falanga stated he does not want to have to go through this process again in the future. Commissioner O’Brien stated the request before the Board is more than fair; it does not need to be overly restrictive and tread on someone’s property rights; and three units is not bad.

Commissioner Higgs inquired could Mr. Falanga have nine units if the PIP zoning remained; with Mr. Enos responding he could conceivably get nine units with a subdivision layout.

Chairman Scarborough called for a vote on the motion. Motion carried and ordered; Commissioner Higgs voted nay. (See pages for Ordinance No. 02-27 and Binding Development Plan.)

Motion by Commissioner O’Brien, seconded by Commissioner Colon, to direct staff to review a large scale plan amendment for the properties zoned PIP north of the tree line, with the exception of Parcels 251, 501, and 504. Motion carried and ordered; Commissioner Higgs voted nay. (See pages for Zoning Resolutions.)

The meeting recessed at 6:53 p.m. and reconvened at 7:04 p.m.

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD’S RECOMMENDATIONS
OF MAY 6, 2002

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 6, 2002, as follows:

Item 1. (Z0205401) Dianne M. Cullen and Desiree M. Webber’s request for Small Scale Plan Amendment (02S.5) to change Future Land Use Map designation from Neighborhood Commercial to Community Commercial; and change from GU to BU-2 on 1.97 acres located on the south side of Freeman Lane, east of Waelti Drive, which was recommended for approval of Community Commercial by the Local Planning Agency (LPA) and BU-2 by the P&Z Board.

Desiree Webber, representing A New Leash on Life, stated the property she is asking to be rezoned is her home as well as the location she is using for an animal rescue organization; she has been located on this property since February, 2000; the property is approximately two acres with vacant land to the west and north, retention ponds, railroad tracks to the east, and a large warehouse and parking lot to the south; and she provides long-term care for dogs. She noted she does not have any cats on the property, but works closely with people who do cat rescue; the animals she cares for are spayed and neutered upon entering the rescue; they are also vaccinated, heartworm tested, and any other medical needs the dogs may need are also provided; and they are routinely given heartworm prevention, flea and tick prevention, and treated for any prevention that is indicated by the veterinarians for intestinal parasites, etc. She stated she provides a safe haven for dogs of all breeds, but in particular, she serves mixed breeds since they are most often the dogs that are left to the way side; the animal rescue cares for dogs of all ages, from puppies to the elder; there is currently a litter of puppies that are approximately 12 weeks old; and some of them are blind and deaf that are available for adoption. Ms. Webber stated the applicants applying for adoption of the dogs are screened; personal references and a veterinarian reference are required; included in the adoption agreement is a clause that states, “Should the animal not be cared for as directed in the adoption agreement, we will reclaim the pet”; individuals must continue with the vaccinations, yearly exams, and heartworm prevention; and the animals must have collars and tags and be cared for as a member of the family.

She noted the pet rescue reclaims the pets if they are not cared for properly; if the animal cannot be kept with the family for whatever reasons, the animal must be returned to the pet rescue so it does not end up in an animal shelter; and pet rescue does everything it can to prevent dogs from going to shelters as the shelters are full enough. Ms. Webber stated her organization has made every effort to provide a safe environment for the animals, including the installation of a monitored smoke/fire system; living within the rescue enables her to provide care on a 24-hour basis; the animals are under the care of two veterinarians; and they provide a multitude of services. She noted the most critical service is sterilization of the animals; reiterated that each animal is sterilized when they are brought to pet rescue; her organization also transports animals to be spayed and neutered for private citizens in an effort to insure that the over population in the County is brought under control; and one of the organization’s future goals is to provide the service on a street-by-street basis and door-to-door and offer this transportation for people to have their animals spayed and neutered. Ms. Webber stated she has attended two training seminars; the sole purpose of such seminars were for animal disaster relief and to assist local government in the event of a disaster; and the seminars were sponsored by Disaster Animal Response Team (DART) and Emergency Animal Rescue Service (EARS). She noted Animal Services and Enforcement Department has approximately 15 field officers; during normal times they are already stretched to the limit with an average of approximately 300 calls per day; and to have to take on the added responsibility of stray animals is overwhelming without the help of volunteer organizations. She stated the property is ideally located to provide many services for animals, from helping in an emergency to helping other rescue groups transport their dogs from county to county and state to state; her organization participated in transporting a blind puppy to a school for the blind in Canada; and the transporting is done in a relay system with volunteers. Ms. Webber stated with the approval tonight for rezoning, her organization will continue the practice of the rescue efforts and perfecting the efforts for all concerned.

Commissioner Colon inquired about an incident that happened on the property in regard to a dog attack. Ms. Webber responded the incident took place in April 2001; her neighbors’ dog came to her property; she did not actually see the attack, but knows that something happened while the dog was there as the dog was barking; and she then took the dog to its home. She noted there was a family member at the house at that time; she strongly urged that the dog go to a veterinarian, but no interest was expressed; so she took the dog to the emergency clinic since it was on a weekend; and her organization paid for the service to have treatment. Commissioner Colon inquired have any other incidents occurred on the property; with Ms. Webber responding negatively.

Martha Stephens stated she and her husband purchased property across from Ms. Webber in December 1999 with the hopes of building their dream home; Ms. Webber let them know that she had a dog rescue operation with approximately seven dogs; over the past two years it has turned into many dogs; and she has counted from 30 to 50 dogs, but has been told there are between 70 and 120 dogs. She noted there is a bad stench from the animal feces and the dogs bark, which is loud and irritating; and she is fearful that one of the dogs may get out of the fence and harm her grandchildren while they are building their house. She stated she is all for people taking care of dogs; Ms. Webber is doing a great thing; but there needs to be proper standards; and the issue needs to be reviewed.

Kathleen Harer stated she has known Ms. Webber for approximately one year; Ms. Webber was involved with a major rescue of a private shelter in Orlando; such shelter went out of business and the dogs were left to take care of themselves; and Ms. Webber picked up the dogs, gathered volunteers to help put up emergency fencing and pens, cleaned up the dogs, and had them spayed and neutered. She noted Ms. Webber essentially paid for everything with her own funds; she has been recognized by Channel 13 as “Citizen of the Week” in May 2001 for her rescue efforts; Ms. Webber takes care of the animals 24 hours a day, seven days a week; and when she has volunteered at pet rescue, there has not been a stench from the area. She stated when she first drove up to the property the dogs outside did bark; there are also dogs inside the house; the fencing is secure; and Ms. Webber works to keep the dogs contained. Ms. Harer noted there is enough space on the property so that the dogs have a good free run while being protected; the location is a good one for a shelter of this kind; Ms. Webber is part of a group that works with the County and other rescue groups; and the County has a limited amount of funds, but there are groups working together to try to get additional funding. She stated Ms. Webber has been a major part of that project and has worked on developing the plans; the groups have met a few times; and they have great hopes for putting together a good plan that will help obtain foundation grants. She reiterated that Ms. Webber’s property is a good location for the pet rescue operation; and requested the Board support the rezoning request.

Susan Forester, Office Manager for Coastal Animal Hospital in Rockledge, stated such Hospital is Ms. Webber’s main supplier of medical care for the dogs; the dogs are vaccinated for rabies and tested for heartworms, which is a major parasite in Florida; the dogs are treated if they test positive; and they are made healthy before they are adopted. She noted the dogs are also spayed and neutered; the services are paid for by Ms. Webber or from donations received at the Hospital; Ms. Webber is filling a niche in Central Brevard County; and requested the Board support the request.

Beth Sinclair advised of her support for the rezoning; stated she met Ms. Webber when she went to adopt a dog; she did not have a website; so they started working on a website on petfinder.org; and Ms. Webber’s webpage gets over 6,000 hits per week from people who want to adopt the dogs. She stated she has never seen a loose dog on the property; her daughter plays with the dogs; she has never seen an animal suffering or in need of medical attention and being denied that on the property; and when she adopted her puppy, she had to fill out a reference sheet and other information. She noted Ms. Webber was extremely insistent on everything being in order and complete; she was not going to let one of her dogs go to somebody who was not going to be responsible; and the puppy was neutered, on heartworm medication and flea and tick prevention, and was vaccinated with his first set of shots. Ms. Sinclair stated all the dogs that go to pet rescue are guaranteed that they will not be put down if they are healthy; and she supports Ms. Webber’s request.

Elaine McClung, representing Melbourne Pet Rescue, advised of her support for Ms. Webber; stated the name “A New Leash on Life” is very appropriate as Ms. Webber has given many dogs a new leash on life; she has known Ms. Webber for several years; and she is very dedicated and a model for everyone in pet rescue. She noted Ms. Webber takes excellent care of the dogs and makes sure they are seen by a veterinarian; all potential adopters are screened to make sure the dogs are going to a responsible home; she makes follow-up calls after the adoptions to address any problems; and if the new owners cannot keep their pet, Ms. Webber takes the dog back into the rescue program. Ms. McClung stated the citizens of Brevard are fortunate to have the program; A New Leash on Life is the only mixed breed, no kill shelter for dogs in Brevard County; the citizens deserve to have this option when they have to make the decision to give up a loved pet; and the dogs do not have to be picked up and taken to County shelters, thereby saving taxpayers dollars. She noted the dogs in Ms. Webber’s rescue program do not take up valuable cage space in the shelters; the County does not have to provide them with food or medical services; and Ms. Webber handles all of it. She stated at times a no kill shelter can be a benefit to women and children in an abusive situation; there are shelters for the women and children, but pets are not accepted; they are under tremendous emotional stress; and some of the stress can be related to giving up a loved pet. Ms. McClung noted knowing that a pet is going to a no kill shelter greatly reduces emotional trauma on the children. She urged the Board to approve the rezoning request.

Brian Wheeler stated his property is located within 80 feet adjacent to Ms. Webber’s property; he and his wife built their house in 1984 and have been paying taxes there for the past 18 years; they have strived to maintain their privacy; and a majority of the property is in its natural state, which also creates sound barriers. He noted A New Leash on Life is a commendable effort; but at this point, Animal Services and Enforcement Department has documented that there is approximately 70 dogs on Ms. Webber’s property; he and his family are puppy raisers for southeastern guide dogs; and they have raised puppies from eight weeks old to maturity. He stated every dog they have raised is now serving as a guide dog; they understand the love for animals and the giving; but dogs waking him up at all hours of the night, seven days a week is not acceptable; and the dogs have been known to get out of the fence. He noted his dog was the one previously mentioned that was mauled; not one of the speakers in support of Ms. Webber live in the area; he understands that the surrounding property and the way it has been developed has been part of an administrative change of zoning, and the possible zoning changes conform to what is on paper; and if the changes are approved, it is reasonable for Ms. Webber to conform to the commercial standards that apply, including under the Conditional Use Permit (CUP), Section 62-1956, that “Pet kennels shall be located at least 300 feet from the nearest residence.” Mr. Wheeler stated the Board should determine a reasonable number of dogs; 70 dogs are unreasonable; and there should also be a binding development plan.

Commissioner Colon stated she found out about the dog incident through a member of the Planning and Zoning Board; and inquired has Animal Services and Enforcement Department been contacted regarding the barking dogs. Mr. Wheeler responded he has contacted the Department concerning the health issues; he tries to be a reasonable neighbor; but the operation has exploded from seven dogs to 70.

Frank Kizis stated he supports the proposed request; he assists Ms. Webber as much as he can and plans to continue doing so in the future; he has never seen any of the dogs get out; and the stench and barking is a red herring. He noted Ms. Webber is one of the greatest assets in the community; she is the most dedicated individual he has met; and she has done more good in one day than most people have done in a lifetime. He stated his father once told him that God put him on this Earth to help save all of the creatures and animals that were put here for his enjoyment; he has raised his children with that motto ever since; and if his father were here today, he would point to Ms. Webber and say, “That is the answer, she is it.” He noted Albert Einstein once said, “There are two types of people in the world, there are successful people and people of value. A successful person takes more out of life than he puts into it and a person of value puts back into life more than he takes out. Rather than being known as a successful person, I’d much rather be known as a person of value.” Mr. Kizis stated Ms. Webber epitomizes that quote; no one has done more for animals than she has; and requested the Board grant the rezoning.

Laura Wheeler stated she lives adjacent to Ms. Webber; the residents are concerned and protesting about the number of dogs; she is a dog lover in the right circumstances; and she has complained to Animal Services and Enforcement Department. She noted the Orlando shelter started out with good intentions, but ended up getting overwhelmed and had to shut down the facility; that is her concern with Ms. Webber’s operation; and inquired at what point is too many dogs, and can the Board require a binding site plan limiting the number dogs to a certain amount per acre. She stated the Department is also concerned about the number of dogs on the property; Ms. Webber has been reactive all the way through the process and getting certain things done because she has to for compliance; she is not adequately taking care of the dogs now; and inquired how can she do so in an emergency situation. Ms. Wheeler stated the area is residential; pet kennels are not allowed within 300 feet of a residential area; and the residents would prefer not having a pet kennel in the area or putting it toward the back end of the subject property. Ms. Wheeler noted Ms. Webber indicated that there have been no other incidents on her property; however, Raymond Kerns was bit by a dog on the property. She stated the dogs have gotten loose in a pack at times; and she has had to put two fences around her property to keep Ms. Webber’s dogs out.

Toni Lewis, representing Alley Cat Orphans, read a letter as follows: “To Whom It May Concern: During the years from 1994 to 1999 my husband and I lived behind Desiree Webber and Dianne Cullen in Cocoa Beach. Our backyards backed up to each other. It was a single-family neighborhood with families who owned their homes, took care of their homes and yards, and made an effort to get to know each other. We enjoyed many years as neighbors to Desiree and Dianne. At the time, they had multiple dogs. I believe the numbers reached as high as 17. I was always amazed at how much they loved each animal, bonded with the animals, took such good care of them, and showed such concern for the many dogs that belonged to them and that they rescued from sure death and abuse. Not only did they care about their pets, they cared about making sure the neighbors were not bothered by a large number of pets in one household. They would see us daily and ask us if we heard the dogs, which we never did. We would visit over the fence and ask about each dog and the history of each animal. They, Desiree and Dianne, knew what each dog needed, took them to the vet constantly, and invested in their dogs like most of us invest in our children’s care and welfare. They saw to it that their dogs went to obedience school and were always well fed and groomed. I will not go so far as to say I am not really an animal person and because of the love these two women showed for each and every animal they sheltered, I began to realize that their gift to reach out to animals was their work in life. It was part of my day to ask about the dogs or any recent rescues. They also made sure that while they were caring for their pets they were also diligent in finding each animal a safe permanent home. I can’t believe the efforts they have made to care for neglected, abused, and homeless animals in our community is rewarded with fines, mistrust, and charges of cruelty and neglect. They are doing a wonderful service for this area. These two people sold their home and moved to a larger land space just to accommodate their pets. As a Brevard County school teacher, I have seen them take better care of an animal than some take care of their children. I certainly hope that all parties concerned will find a reasonable solution to allow Desiree and Dianne to continue the wonderful work and service they do for animals. They offer a service that is caring, comforting to those who need help, and enables a helpless pet to be cared for. Respectfully yours, Milford and Nancy Lucy, Cocoa Beach, Florida.” Ms. Lewis stated Ms. Webber and Ms. Cullen do a wonderful community service; she recently adopted a pair of 11-year old Chihuahuas; she and her husband have visited the subject property on several occasions with their grandchildren; and she has never been concerned for their safety. She noted all of the animals are contained securely; they are clean and well groomed; she did not notice any stench; and it is a healthy environment for the animals. She requested the Board’s support of the item.

Raynee Thomas stated she supports Ms. Webber’s endeavor; she has known Ms. Webber for a couple of years; and she takes care of and grooms all the animals that come through A New Leash on Life. She noted the animals are well taken care of; Ms. Webber is very particular about how the animals are kept, groomed, cleaned, free of parasites, etc.; and she has reunited many stray dogs with their families and found homes for other stray dogs. She stated Ms. Webber is doing a great service; and requested the Board support the rezoning.

Lara Coffey stated she is one of Ms. Webber’s volunteers; she will continue to assist Ms. Webber with her operation; some animals come in sick and are treated; but she has never seen any neglected animals. She requested the Board approve the rezoning request so that Ms. Webber can continue the service.

Susan Canada stated the dog mauling incident that occurred did not happen on the property of the Wheelers; their dog was at-large, which is a violation of the County’s Ordinance, and on Ms. Webbers’ property; and she and her grandchildren have visited Ms. Webber’s home and have never had a dog show any sign of viciousness. She noted she has not noticed any odor coming from the property; Ms. Webber manages to handle her operation and keeps everything immaculate; and advised of fostering puppies, which is a difficult task. She stated there is no one to fill this need; Ms. Webber is willing, on a limited basis, to take in those animals for women going to abuse shelters; the women are not willing to send their pets to an animal shelter; and the County and Ms. Webber could work together to help solve some of the animal issues. Ms. Canada stated much of the property surrounding Ms. Webber is GU and business; and requested the Board allow her to continue in her efforts as it is needed in the community.

Eloise Waelti stated she is an animal lover and has animals of her own; the issue tonight deals with zoning; she has owned her property for over 40 years; the only thing built at that time was a warehouse south of the proposed property; and the zoning was GU. She noted to the east are two fenced in retention ponds the County had for fill to widen Wickham Road; the ponds are now the drainage for Suntree; beyond the ponds is a railroad track and subdivision that has been in existence before the 1970’s; and everything is within 500 feet east of the subject property. She stated to the north is the Stevens’ and Wheeler’s properties; to the west is a wooded piece of property purchased by the Johnsons; and their property is zoned GU. Ms. Waelti noted further west is a gymnastics facility, three small offices, and a daycare center; the businesses exit onto Waelti Drive and not Freeman Lane; Freeman Lane only has four property owners; and such Lane is an unpaved designated County road which is private and quiet. She stated the west end of Freeman Lane joins Waelti Drive; across the street is the PUD of Suntree; the residents of Suntree objects to any kind of business behind their houses; and Ms. Webber’s business will generate a lot of traffic, which is part of the objection by the property owners.

Ms. Webber stated the animals that were brought from a shelter in Orlando was due to the shelter being closed down because it was abandoned by the founder; the volunteers running the shelter were not able to continue the shelter; and many of the animals were sent to either cat rescues or foster homes. She noted some of the dogs came to her home, but not all of them; the owners who purchased property directly west of her have purchased a house and are not going to build a home in the area; they use the property solely to park their commercial vehicles; and she does not have vicious dogs. She noted her granddaughter comes to her home on a regular basis; she would not endanger herself or anyone else’s child; she has been inspected several times by different people, including the County; and Randy Jackson can speak about what he has observed on the property. Ms. Webber stated she does not consider reacting to a problem, complaint, or concern to be reactive; she is addressing issues as they come up in a timely manner to insure they do not recur; there has not been a problem with dogs running loose in many months; and the plan is to have individual housing with play yards for the dogs instead of a concrete building with cages. She noted her house sits on the front part of the acreage; the individual housing and play yards will be behind the house; there are 20 dogs outside in different sections, with a large play yard and shelter; and the rest of the dogs are in the house. She stated she visited the Health Department and inquired about requirements and recommendations; she is doing what was recommended, which is double-bagging waste from the dogs; and she has never had a complaint about it. Ms. Webber stated the people who have spoken tonight against her request have never been on her property, with the exception of Mr. Stevens; and inquired about the credibility of their comments, which are assumptions and accusations. She noted being born part of the human race instead of the animal kingdom does not give humans more rights, but more responsibilities; there are a lot of things that her dogs hear at her house, such as “Thank God, it’s time for bed, and oh my God, I can’t believe it’s time to get up already”; but they never hear, “Your time is up.”

Commissioner Colon inquired how many dogs does Ms. Webber have on the property; with Ms. Webber responding 70. Commissioner Colon inquired how many dogs are inside the house; with Ms. Webber responding 50.

Commissioner Colon inquired what is the square footage of Ms. Webber’s home. Ms. Webber responded she was under the impression that the house was 2,800 square feet; but when a new roof was put on it, the roofer had to get additional shingles to finish the roof. Commissioner Colon inquired did the County ever tell Ms. Webber how many animals she was allowed to have at her house; with Ms. Webber responding negatively. Ms. Webber stated she assumed that GU was general use and there were no restrictions; and she would not be doing this operation in the middle of town. Commissioner Colon inquired if Ms. Webber’s dogs bark at night; with Ms. Webber responding not that she hears when she is in the house as the dogs are behind the house. Ms. Webber stated if her dogs barked, she would stop it; and if neighbors have a problem they are always welcome to call her. She noted she is grateful to the volunteers; and she does not take in more dogs than she can personally handle. Commissioner Colon inquired if the rezoning is approved, would the number of dogs increase; with Ms. Webber responding negatively. Commissioner Colon commended Ms. Webber for her efforts; and noted she is having a hard time understanding how 70 animals can be in such a small area that is residential. Ms. Webber stated it is overwhelming for the average person, but this is all that she and the volunteers do. Commissioner Colon stated her concern has to be for the entire community; what Ms. Webber does affects the community and people in the area; she has an adoption center on two acres in a residential area; so she cannot support the item this evening.

Commissioner Carlson stated the issue tonight is zoning; everything Ms. Webber does is great and her efforts are appreciated; Commissioner Colon’s comments have merit; and the Board is faced with compatibility issues. She noted there is a lot of mixed use in the area, which is a difficult situation; residents have lived in the area for a long time and some property owners are interested in building there; and the Board needs to make sure there is a binding development plan if the zoning is going to work. Commissioner Carlson inquired how much of the two acres is fenced; with Ms. Webber responding all of it. Commissioner Carlson inquired is the number of animals defined with a pet kennel with runs; with Mr. Enos responding there is no mention of numbers in the Zoning Code. Commissioner Carlson stated the issues need to be discussed further; the information she has received is about what a wonderful job Ms. Webber is doing; tonight is the first time she has heard from the residents in the area; and there is BU-2 and GML zonings surrounding Ms. Webber’s property, other than directly across the street. She noted she would like to visit the proposed site; there is a lot of transition and heavy commercial taking place in the area; there is a mixture of zoning; but the Board needs to consider the residents that live there also.

Chairman Scarborough stated there may be some restrictions concerning the proximity to residential; other issues that may need to be reviewed are limitations on noise, odor, and total number of dogs; and he would like the Health Department to review the issues as well.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to continue Item 1 to the August 1, 2002 meeting.

Commissioner Higgs inquired will the applicant or staff be responsible for the binding development plan. Commissioner Carlson responded the applicant, and staff can provide ideas; and she will meet with everyone involved to come up with something that is reasonable for the entire community. Commissioner Higgs noted the binding development plan should be circulated to the neighborhood as well.

Ms. Webber requested Randy Jackson advise the Board on what he has observed at this point regarding her organization. Chairman Scarborough responded it is not necessary this evening as the item is going to come back to the Board for discussion on August 1, 2002. Commissioner Carlson stated staff will work with Mr. Jackson on the issue as well.

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

Item 2. (Z0205402) Withdrawn from Agenda.

Item 3. (Z0205501) Jerome C. Notestine’s request for CUP for Group Home Level II in RU-1-9 zone on 0.85 acre located on the southeast corner of Keystone Avenue and Miami Avenue, which was recommended for approval by the P&Z Board.

Commissioner Colon stated the group home has been in existence since 1989; the request is to increase the number of residents from six to nine; and it is compatible with the residential area.

Motion by Commissioner Colon, to approve Item 3 as recommended by the P&Z Board.

Commissioner Carlson inquired did the Board recently change the Ordinance that group homes with over six or nine residents have to be in a multi-use area.

Assistant County Manager Peggy Busacca responded the Board granted permission to advertise the public hearing to consider the ordinance. Commissioner Carlson stated she did not know if it was the Board’s intent to review the ordinance first and if it had any bearing on this item. Assistant County Attorney Eden Bentley stated when there is only permission to advertise the Board does not have any way to say that it wants to apply new regulations; and it needs to apply the existing regulations.

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

Item 4. (Z0205101) Horace and Barbara Elmore’s request for change from AU to TR-2 on 0.69 acre located on the south side of Main Street, east of Harry T. Moore Avenue, which was recommended for denial by the P&Z Board.

Horace Elmore requested the Board’s approval to rezone his property to put in a single-family trailer.

Chairman Scarborough stated there is a recommendation from the P&Z Board for denial; and he supports the recommendation.

Motion by Commissioner Carlson, seconded by Commissioner O’Brien, to deny Item 4 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 5. (Z0205403) Gomer R. and Victoria Mitchell’s request for removal of a Binding Concept Plan (BCP) in RU-1-13 zone on 1.34? acres located on the west side of Rockledge Drive, north of Bonaventure Drive, which was recommended for approval by the P&Z Board to remove the BCP and allow flag stem to be moved to the south side of the lot.

Victoria Mitchell provided documentation to the Board and Clerk; and read a letter, as follows: “Mr. Mitchell and I are applying for a relocation of a flag lot stem that was established in 1987. As it stands now, the flag lot stem is north of the duplex at 2049 Rockledge Drive. At the time that the survey was originally done by Frank Garcia, the structures were not located on the drawing. Mr. Mitchell told Frank that he wanted two buildable lots established on Rockledge Drive and a one-acre flag lot behind them. Then, he applied for the zone changes, not knowing that there was an encroachment on the stem of the flag lot. The Zoning Board and the County Commissioners in 1987 approved it. All we want to accomplish is the relocation of the flag lot stem from the north side of the duplex to the south side of the duplex, leaving the duplex the same acreage as it is today. We believe in 1993, when George Edwards ruled that the duplex was to be considered a non-conforming use, he was consulting the rule of eight units per acre as a basis for his decision. On May 20, 2002, the Brevard County Zoning Board recommended approval of the flag lot stem being moved to the south side of the duplex. That does change the location of the duplex lot, hypothetically, but not the size. The duplex and lot was recognized officially by Brevard County in 1993, although its original establishment was in the 1950’s. It does not appear reasonable for the County to expect compliance with today’s rules pertaining to duplex status, since the property was purchased by Mr. Mitchell in 1981, with the expectation of continuing the already existing usage, and indeed has been the use throughout his ownership. We submit that the change of usage from “duplex” to “single family” usage will create undo hardship and suffering for our tenants and ourselves.”

Commissioner Carlson stated it is her understanding that by moving the stem to the southern portion on the other side of the duplex will provide access to Tract 3; and requested staff explain the non-conformance piece of property.

Zoning Official Rick Enos responded the parcel is approximately one and one-half acres; the property is broken up into two pieces; the duplex is on a parcel that is larger than one-half acre; and it is a non-conforming use and has been established as such. He noted there is a provision in the Code that says if someone creates two lots out of one lot, the act of that severance cannot create any new inconsistency with the Code or Comprehensive Plan; such Plan establishes the area as four units per acre; because there is a duplex, any lot smaller than one-half acre would increase the density to more than four units per acre; and that is why the Board cannot reduce the size of the lot to less than one-half acre. He stated in 1987 when the Comprehensive Plan was first established, the County did not know that the structure existed; there was no Plan at that time establishing the four units per acre; and if a lot had been cut out prior to 1988, it would have been all right; but it was not until after that date. Mr. Enos noted there is a Comprehensive Plan problem; and the lot has to have at least one-half acre.

Commissioner Carlson stated she understands the compatibility of the Comprehensive Plan issue, but the Board could solve that problem if there was an easement instead of moving the stem; and the Mitchells would have the amount of property needed to keep the duplex. Mr. Enos noted there are ways that the Mitchells could reconfigure the property to keep the duplex on one-half acre and build a house in the back of the property; the purpose of the action is to remove the BCP; the other issues about the duplex and one-half acre can be dealt with administratively or through some other action; but right now all staff is concerned about is removing the BCP.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to approve removal of the BCP and allow flag stem to be moved to the south side of the lot for Item 5, as recommended by the P&Z Board.

Ms. Mitchell inquired can she and her husband move forward with construction of their new house as they have been waiting since December 4, 2001 for an answer; with Mr. Enos responding they can build the house, but not the way they originally intended.

Commissioner Colon seconded the motion. Chairman Scarborough called for a vote on the motion. Motion carried and ordered unanimously. (See pages for Zoning Resolutions.)

Mr. Mitchell inquired if the duplex issue is still unsolved; with Commissioner Carlson responding affirmatively. Commissioner Carlson stated the Mitchells can build on their property; but the other pieces will have to be dealt with through staff; and the Mitchells can discuss the other issues with Mr. Enos.

Upon motion and vote, the meeting adjourned at 8:27 p.m.

ATTEST: __________________________________
TRUMAN SCARBOROUGH, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA
______________________
SCOTT ELLIS, CLERK

(S E A L)