The Board of County Commissioners of Brevard County, Florida, met in regular session on November 2, 2000, at 5:34 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Nancy Higgs, Commissioners Truman Scarborough, Sue Carlson, and Helen Voltz, Assistant County Manager Peggy Busacca, and Assistant County Attorney Eden Bentley. Absent was: Commissioner Randy O'Brien.

The Invocation was given by Pastor Brent Drake, New Life Church of Central Brevard.

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

REPORT, RE: EXECUTIVE SESSION FOR MAXWELL APPEAL

Assistant County Attorney Eden Bentley requested permission to advertise an executive session for November 14, 2000 at 8:30 a.m. Chairman Higgs inquired if the Board has to convene in the Commission Room then recess for the executive session; with Ms. Bentley responding it could do that.

Motion by Commissioner Voltz, seconded by Commissioner Scarborough, to grant permission to advertise an executive session to discuss the Maxwell appeal for November 14, 2000, at 8:30 a.m. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: TABLED PLANNING AND ZONING BOARD RECOMMENDATIONS OF SEPTEMBER 11, 2000

Chairman Higgs advised of the procedure and time limits for addressing the Board; and asked the Assistant County Attorney to advise the public on what is required for presentations. Assistant County Attorney Eden Bentley advised the audience of the need to provide competent substantial evidence; and described what is and is not considered substantial evidence.

Chairman Higgs called for the public hearing to consider recommendations of the Planning and Zoning (P&Z) Board, made at its public hearing on September 11, 2000, which were tabled by the Board of County Commissioners on September 21, 2000, as follows:

Item 1. (Z0009104) William O. and Cora S. Cox's request for change from GU to ARR on 2.04 acres located on the southwest corner of Harley Avenue and Ardelle Lane, which was recommended for approval by the P&Z Board.

Commissioner Scarborough inquired if the applicants were contacted; with Zoning Official Rick Enos advising yes, and they are agreeable to AGR. Ms. Cora Cox stated they want to do that.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item 1 as AGR as agreed to by the applicant. Motion carried and ordered unanimously.

Item 2. (Z0009202) Vi Van Nguyen's request for CUP for marina in BU-2 zoning classification on 1.5 acres located on the east side of South Banana River Drive, south of SR 520, which was recommended for approval by the P&Z Board, contingent upon permits being obtained from all governing State and County agencies.

Kathryn Brashear requested tabling for 60 days as they do not have the paper work from the State to bring to the Board. She stated the seagrass survey has been done, and the engineers have been working on this item.

Commissioner O'Brien advised with the Christmas season coming up, would 90 days be better; with s. Brashear responding that would be fine.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to table Item 2 until February 1, 2001. Motion carried and ordered unanimously.

Item 3. (Z0009404) Senior Care of Brevard County, Inc.'s request for change from AU to RU-2-12 and CUP for adult congregate living facility on 21.252 acres located on the north side of SR 520, one mile west of I-95, which was recommended for approval by the P&Z Board.

Rochelle Lawandales, owner and President of Lawandales and Affiliates and certified planner, representing the applicant, advised the request has been reduced to RU-2-6 for 21 acres instead of RU-2-12; and the CUP for the 125-bed adult congregate living facility (ACLF) is only for the front eight acres. She stated based on review of the County's regulations, the project is consistent and compatible with the Future Land Use Plan; and presented Exhibits for the record.

Chairman Higgs received 44 cards from people in support of the rezoning. Commissioner Scarborough inquired if there is anyone in opposition to the rezoning; with Chairman Higgs responding she has some concerns, primarily putting a multifamily development on a highway that does not have multifamily.

Ms. Lawandales advised the six units per acre is consistent and compatible with RU-1-9; the trailer park exceeds six units per acre; and while it is RU-2-6, it will be single-family detached units. She stated that is the lowest classification they could apply for to be able to have the ACLF. She stated the area is fully serviced by water and sewer.

Chairman Higgs inquired if there is public transportation; with Ms. Lawandales responding she talked to SCAT; and while there is no fixed route for that area, there are contract routes that can be provided. She stated transportation will not be an issue because the residents of the ACLF and retirement community will be provided transportation by the owner. Chairman Higgs inquired if the ACLF will be only on the front with RU-2-6 on the back; and is there RU-2-6 in that area abutting the property; with Ms. Lawandales responding no. Commissioner Voltz advised there is a vacation time share project proposed for the west parcel. Ms. Lawandales advised the vacation time share is proposed to the west; a gas station is proposed at SR 520 and SR 524; it is an urbanizing are and defined as such in the Comprehensive Plan; fire rescue is within two miles; and it has everything any other location has.

Commissioner Carlson inquired about the square footage of the units; with Ms. Lawandales responding they will be 1,100 square feet pursuant to the County Code.

Commissioner O'Brien advised he met with Ms. Lawandales and is pleased the transportation has been addressed and emergency services is within two miles. He stated the units are not cheap, but the development will be good for the community.

Commissioner Voltz advised she met with Ms. Lawandales also and other members of the Center who answered her questions; and she has always supported a facility like it and the people in charge providing the transportation, so she will support it.

Commissioner Carlson inquired about the provision of more parking spaces than required; with Ms. Lawandales responding it is primarily for visitors, events, and guests of the retirement community; but once the final design is done, it may be less or more to meet the Codes. Commissioner Carlson stated there is an eastbound left turning lane which is good.

Chairman Higgs inquired if there is any opposition, and received no response. She stated she met with Ms. Lawandales, but believes the area is not appropriate for the use. She stated it is a great project, but not in that location; and although the land use is mixed use and it meets that use, she will not support it because of the location.

Motion by Commissioner Carlson, seconded by Commissioner O'Brien, to approve Item 3 as RU-2-6 on the back and CUP for 125-bed ACLF on the front eight acres.

Ms. Bentley inquired if the people who signed cards waiving their right to speak. Chairman Higgs inquired if anyone wished to speak.

Donna Fawcett, Gertrude Christy, Cecile Mizell, Ovie Dee Collins, and Richard Hill all spoke in favor of the rezoning; praised the services provided by Senior Care of Brevard County, which have improved their quality of life; advised of the need for such facilities for the elderly and the caregivers; noted the need for additional room; and requested approval of the rezoning.

Chairman Higgs advised the people have made a good case for the Center; she endorses the need for such services and programs; but she feels it is inappropriate at that location.

Commissioner Scarborough stated 100 years ago the life expectancy in the United States was 46, and today it is 78; Brevard County is the 26th oldest county in the Nation; and within the next decade, the population over 85 will double in the County. He stated what Senior Care of Brevard County is doing is one of the most important things that could occur; and it is commendable that so many people came out tonight to support it.

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

Item 4. (Z0009501) Boykin Hotel Properties, L.C.'s request for CUP for additional building height in TU-1 zoning classification, removing the CUP for sewer facility and tourist efficiencies, and retaining the Cup for a bar/cocktail lounge on 7.387 acres located on the east side of Highway A1A, north of North Court, which was recommended for approval of 54 feet on the six-story building only by the P&Z Board. The applicant withdrew the CUP for 132 feet.

Attorney Richard Torpy, representing the applicant, advised he was asked to put the conditions and things they agreed to in a binding development plan (BDP), and he did that; the Assistant County Attorney made changes; and he presented the corrected BDP to the Board. He stated the lounge will be removed and will not be put back; they will give the County $15,000 at the time they pull permits for construction of the beach crossover to the south; and they removed one item that was granted by the Board of Adjustment.

Commissioner Carlson advised the BDP talks about the 60 feet of dune line replenishment; and inquired how far is the blow out area; with Office of Natural Resources Management Section Supervisor Debbie Coles responding it is adjacent to the slab and may be where the septic tank was at the toe of the dune. Commissioner Carlson inquired if 60 feet is sufficient; with Ms. Coles responding yes, it is about 50 to 55 feet, but she wanted to make sure it is covered.

Motion by Commissioner Voltz, seconded by Commissioner Scarborough, to approve Item 4 with a BDP, and grant a variance of no more than ten feet from the Brevard County Coastal Setback Line.

Chairman Higgs advised she met with Mr. Torpy and discussed the BDP. Commissioner O'Brien stated he talked to Mr. Torpy by phone; he has never been for increased height because people do not want Fort Lauderdale in Brevard County; it is a good project, but he will vote against it.

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

Chairman Higgs requested Mr. Torpy explain the parking spaces for the public. Mr. Torpy identified an area on the plan with 25 to 30 spaces. Chairman Higgs inquired if the applicant will maintain two public beach access and the public parking; with Mr. Torpy responding correct.

PUBLIC HEARING, RE: ZONING RECOMMENDATIONS OF OCTOBER 2, 2000

Chairman Higgs called for the public hearing to consider the recommendations of the Planning and Zoning (P&Z) Board, made at its public hearing on October 2, 2000, as follows:

Item 1. (Z0010101) Donald R. and Karen R. Conway's request for CUP for towers and antennae in IU zoning classification and removing CUP for residential social service facility, treatment and recovery facility on 0.905 acre located on the west side of Williams Point Boulevard, west of U.S. 1, which was recommended for approval by the P&Z Board.

Zoning Official Rick Enos advised he has a letter from the tower consultant who believes there is a technical necessity.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item 1 as recommended by the P&Z Board.

Commissioner O'Brien stated he has trouble supporting towers because along the Banana River he counted 37 towers with five having white strobe lights that stay on all night long; and inquired at what point will the Board say it has enough towers in Brevard County. He stated he is concerned about adding more towers to the skyline; and he is surprised that with the technology today, there is still a need for towers; but on the other hand, with cellular phones, chances are slim getting them to work in certain areas.

Commissioner Carlson stated the minimum distance from residential use is 900 feet, and from tower to tower is 3,500 feet; the property is IU, but there is also GU, which no one knows what will be there in the future; and the Board is potentially looking at a waiver of 250 feet on the residential section and over 1,000 feet on the tower to tower distance. She stated she is not sure that is the intent of having a technical expert look at the applications; if it is a rubber stamping effect, she is not sure she can go along with it; the Board can come up with the same sort of thing and give a waiver too; and inquired if the Board set minimums, why can't it stick to the minimums. Commissioner Scarborough stated that is a good question. Commissioner Carlson stated she was looking for technical justification in the report and could not find what she would accept as justification. Mr. Enos stated there is a letter from the County's consultant that it is his belief and recommendation to the Board that the applicant proved technical necessity, which is the standard staff uses to approve waivers of the setbacks. He stated although the nearest residential classification, which is AU, is less than five times the height of the tower away, the closest developed parcel is well over 900 feet away.

Commissioner Voltz inquired if it meets technical necessity, does the Board have a right to deny it; with Ms. Bentley responding the Board has provisions in its Code that say how people can obtain a waiver; and if its expert said they met the technical necessity, it would have a hard time in court if it goes the other way. Commissioner Scarborough stated the Board has lost lawsuits on towers before; and if it is not happy, it should go back and discuss the basic structure rather than change the rules at this time. Chairman Higgs stated it is in IU and meets the technical necessity; and she agrees that if the Board does not like it, it should be redefined. Commissioner O'Brien recommended a workshop in the Spring to discuss towers and whether it should require one to come down if another goes up. Commissioner Carlson stated the proliferation of towers is the issue; and if they put them closer together, there will no longer be a minimum distance. Commissioner O'Brien stated the technology is there, but it is cheaper to put up towers. Commissioner Voltz stated it is not government's place to tell them how to spend their money.

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

Item 2. (Z0010102) Hoyt G. and Sarah A. Mack and Ola Mae Mack's request for change from AU to RR-1 on 5.02 acres located on the west side of Freedom Lane, south of Parker Road, which was recommended for approval by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Item 2 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 3. (Z0010103) Barbara M. Buckholz and Mildred A. Lewis' request for CUP for group home level III in GU zoning classification having a CUP for a group home level II on 1 acre located on the north side of Canaveral Groves Boulevard, west of Grissom Parkway, which was recommended for approval by the P&Z Board for 15 residents only.

Jo Ann Farley introduced her sister Carol McKee, and advised they both own and operate Friends @ Home, a dementia specific assisted living facility in Canaveral Groves. She stated they are geriatric RN's; prior to opening the facility in September, 1999, they spent four months, seven days a week fixing, painting, landscaping, and making the home beautiful inside and out; and they also took all their geriatric principals of nursing and designed a home that would cater to alzheimers patients, the elderly, and the frail, and fill their needs. She stated they were interested in a small residential home rather than a large institution because alzheimers patients do better in a smaller comfortable home-like setting; and presented photographs to the Board showing their facility. She stated it is on an acre of property, secluded and quiet; and read an excerpt from the Ombudsman's report dated July 25, 2000 as follows: "On this date we found that the service provided by your facility appears to be very satisfactory. Friends @ Home is managed by two personnel who maintain impeccable records and facility. The facility was exceptionally clean, without odor of any kind. All residents were up, dressed, hair combed and groomed. Crystal Jones, the aide, appeared to enjoy her job shown by the treatment of her charges. Thank you for a job well done." Ms. Farley stated they believe they have an exceptional facility; right now they are licensed for eight; the CUP is from 7 to 9 residents; they are asking to go to 15 which is only six more beds; and they have about 3,000 square feet in the facility, six bedrooms, four baths, a living room, family room, and enclosed porch. She stated they have a fenced backyard where residents can go out and take walks; they have limited visiting hours generally from 9:00 a.m. to 7:00 p.m.; there are very infrequent visitors and not much traffic; and the lights are out by 8:00 p.m., so their operation is quiet.

George Jones advised he lives to the east of the house in question, and hopes the Board received the documents he sent, but if not, he brought additional copies. He stated the first two pages is new information; everything after that was presented to the P&Z Board; he does not have a problem with the facility, and believe they do a good job; it is a needed service; but his major concern is the facility in an established residential area. He stated the Senior Care of Brevard is in an area that is not very developed; people who would come to that area would have the opportunity to know that place is there; and it would be their option to buy property and build a house or not. He stated in this case, the area is residential; it is all one-acre lots; and there are houses all around. He stated there have been things in the past, some were corrected; there are things not under the control of the owners like emergency response vehicles coming in at all hours of the night; and someone wondered away; there were police in the yard searching for him, but he understands that was corrected; however, it still disrupted the serenity and peacefulness of the neighborhood. He stated he mentioned at the P&Z meeting that there was more traffic; it was misinterpreted; he was referring to traffic at the house and not on the road; his bedroom window is within 60 feet of the house; and with the windows open, he can hear noises and traffic coming in and out. Mr. Jones advised he reviewed some of the Land Development Regulations, Section 62-1901(1)(c) says, "The proposed use would not cause a decrease in the value of abutting residential property of 10% or greater"; and he believes it will devalue his property, as there would be some concern with an assisted living facility next door if he tried to sell his home. He stated another item is 62-1901(2)(e) regarding wastewater; there is no sewer system in the area; everyone has a septic system; when that house was built, it was a single-family home; and when they built the extension, they did increase the septic system, but he is curious if anyone did any studies or knows whether or not it was approved for 15 people plus two attendants, because it is a concern. He stated the bottom of the handout page says, "Shall be no less than 250 square feet of floor space per resident"; according to the Property Appraiser's printout, the base area is 2,795 square feet; that would only allow 11 people; and they are asking for 15. He stated he is concerned about the additional burden on the systems, but mostly about the disruption to the neighborhood; and even though they are good neighbors, if they sold the house or moved their business, it could be open for anything such as a juvenile home.

Commissioner Scarborough inquired if staff examined those items from the Code; with Mr. Enos responding they review applications under Sections 62-1901 and 1093, which are specific standards of review; and their findings of the floor plan provided to them indicated the maximum residents they could accommodate would be 15. Commissioner Scarborough inquired about property values; with Mr. Enos responding that would require a professional appraiser; and staff has no information from a professional on either side of the issue. Commissioner Scarborough inquired about wastewater exceeding proposed use; with Mr. Enos responding septic tanks are based on the number of bedrooms; so when the house was built, it would have been determined how big the septic tank and drain field would have to be. Commissioner Scarborough inquired if anyone asked if the septic system could service 18 people; with Mr. Enos responding no. Commissioner Scarborough stated that needs to be done. Ms. Busacca stated the State law talks about the number of bedrooms, so she does not know how the State law would address that issue. Commissioner Scarborough stated the dynamics of septic systems have been studied by many people in many different ways; 18 people is a lot of people; it is an issue that has been raised; it is in the County Codes; and the Board is compelled to respond. Commissioner Voltz stated if the Board begins to address the issue by the number of people in a home, people with a lot of children would not be able to live in their homes. Ms. Busacca noted they could calculate it based upon the average amount of wastewater generated per person, but she is still not certain the State law would address it. Commissioner Scarborough stated it does not refer to the State law. Ms. Busacca stated she does not know how the State Code would require the septic tank to be changed; and indicated it could be a condition of the CUP. Commissioner Scarborough inquired, if he told someone he had 18 people using a septic tank, what size tank would that person suggest, and at what point would a septic tank malfunction because of 18 people using it. He stated that should not take a lot of time for a septic tank man to answer. Ms. Busacca stated she agrees, but it is something that has to be addressed under the CUP rather than the State septic tank requirements. Commissioner Scarborough inquired if staff agrees with the calculations for adult congregate living facilities; with Mr. Enos responding it is the wrong provision; the provision that is referenced is for adult congregate living facilities which is paragraph (a), and group homes are under paragraph (b), so it is not applicable. Commissioner Scarborough inquired if staff calculated them from paragraph (d); with Mr. Enos responding yes, and they have enough capacity for 15 residents. Commissioner Scarborough inquired if the reference to (a) is not applicable; with Mr. Enos responding that is correct; it is not an adult congregate living facility; it is a group home; and it is covered by a different section of the Code. Mr. Jones stated the adult living facility was with the original zoning variance; so he is confused that staff is saying it is just a group home. Mr. Enos advised the Code describes an adult congregate living facility as anything over 16 units; anything 16 units and under is a group home; Section 62-1903 deals with both of those uses; but in different subsections; and the section Mr. Jones referenced refers to adult congregate living facility, so it is not applicable.

Commissioner Carlson inquired what basis was used to define group homes and assisted living facilities in the Code, and if it was based on what the State law requires; with Mr. Enos responding yes, it references the State law, but the difference in the County Code is the number of assigned residents. Commissioner Carlson advised someone in the business of assisted living facilities sent her a fax which referenced various things like staffing standards; and she asked if group homes were defined as assisted living facilities; and they said yes, they were in the State law. She inquired what is the licensing procedure for such a home, and how do they qualify to get a State license for a group home. Ms. Farley advised there are many different sections; as for septic tanks, they have three 900-gallon septic tanks, which were inspected by a professional prior to licensing; a person from the County Health Department comes out and addresses the cleanliness, wastewater, trash, etc.; the Fire Department comes out to make sure everything is up to the Fire Code; and there are plant standards such as 60 square feet in each bedroom. Carol McKee advised the County's zoning standards are exactly the same as the State's standards. Commissioner Carlson inquired if they meet those standards; with Ms. Farley responding absolutely. Commissioner Carlson inquired if they would still meet the standards at Level III or do they have to make changes; with Ms. Farley responding they met the standards with the exception of the fire sprinkler system; that has to be implemented after eight residents; they had it installed and will get their 8th resident in two weeks; so they are not changing the use of the building and only providing six more spots for people who need the care the home gives. Commissioner Carlson inquired how many square feet do they have in the home; with Ms. Farley responding about 2,800 square feet. Commissioner Carlson advised the Jones's said a person got out from the facility; and inquired if they are required to have 24-hour staffing; with Ms. Farley responding the agency for Health Care Administration standards that licenses the home require 212 hours a week of staffing which is 24 hours seven days a week plus a half day; they are over staffed that way and have 300 hours; they have 24-hour staffing and two shift changes at 7:15 a.m. and 7:15 p.m.; and the person stays over night, so there is very little traffic. Commissioner Carlson inquired if someone is awake and alert all the time 24 hours a day; with Ms. Farley responding no, they have during the day but they sleep at night. Commissioner Carlson stated the information she was sent says they need to have 24 hour staffing awake during that 24 hours and cannot be sleeping; and there has to be someone on call at all times. Ms. Farley stated that is not true. Commissioner Carlson stated it is a security issue because they are dealing with dementia patients; and inquired what safety standards do they have to deal with; with Ms. Farley responding they have a secure facility with alarms. Commissioner Carlson inquired how did one person get out; with Ms. Farley responding that was before they had the alarms installed; he has since been discharged because he broke a window in January. She stated Mr. Jones referred to a lot of activity and disturbing his peace; the only incident that happened other than a week day during the day was that one incident in January; and they immediately addressed it by putting in an alarm system and code locks on the doors so the staff can quickly open them but alzheimers patients are secure and not wandering all over the place. She stated there are hardly any emergency calls; but they have had people who got sick during the day, and they had to call the ambulance. Commissioner Carlson inquired how long has the home been there; with Ms. Farley responding since September, 1999.

Chairman Higgs advised the applicants have five minutes to provide additional comments.

Ms. Farley stated they will have eight residents soon; they generally accept respite patients which is a relief for the caregiver; the person does not live there 24 hours a day, but the caregiver needs a break; she met a 90-year old caregiver whose wife has alzheimers; it is a difficult task for anyone, let alone a 90-year old person, to be a caregiver; and he asked if he could bring his wife to the Home Saturdays and Sundays for a few hours so he could go to church. She stated when they get eight residents, respite will not be allowed, not even for a few hours, according to their license; and she would hate to think that man will have no where to take his wife. She stated she was appointed by the Board to the Brevard Commission on Aging, and asked to read the mission statement. Commissioner Scarborough advised the Board set it up and is aware of what it is.

Commissioner Carlson inquired if there is anything the Board can do, if the ownership changes, to safeguard the residents from another type of facility; with Ms. Bentley responding, there is a provision regarding modification or revocation of CUP's if there is a significant change in circumstances that would affect public health, safety, and welfare; she cannot think of anything that would trigger that in this instance unless they completely change the character of the facility; but they cannot do that under the CUP, and it has to stay a group home. Ms. Bentley stated they would violate other Code provisions if they switched to another kind of facility, so the Board would have to rely on the existing Code provision of changed circumstances; however, that is probably not the kind of protection Commissioner Carlson is seeking.

Commissioner Scarborough inquired how can the Board analyze the CUP, if it denies the proposed use based on impact to adjacent and nearby properties by the level of activities. Ms. Bentley advised typically the Board should see numbers from the Property Appraiser's records or a private appraiser; even realtors can testify; and that is the kind of testimony the Board would need. Commissioner Scarborough stated in considering impact on adjacent and nearby properties from the number of persons using the property, noise, odors, particulates, smoke, other emissions, and traffic, and if the quality of the neighborhood goes that way, it can be assumed there will be depreciation of value. Ms. Bentley advised those are compatibility issues; and the Board would need substantial evidence on compatibility in order to win that on appeal. Commissioner Scarborough stated the Board has the Sheriff's record and other comments; and inquired if that is the type of information it needs; with Ms. Bentley responding it would be preferable to have a planner or someone at that level testify as an expert witness regarding compatibility; and the court might actually listen to that witness. Commissioner Voltz advised it is an existing group home, so how would that relate to compatibility; with Ms. Bentley responding the Board will have to show, through an expert witness, there is no change or impact on the neighborhood if it wants to approve it; and if it wants to deny it, the expert witness would have to show there is change and impact on the neighborhood.

Chairman Higgs suggested staff do additional studies on the issues, and the item be tabled to the next meeting so the Board has an opportunity to review additional information.

Commissioner Scarborough expressed concern about a lot of activity, alarm sounding, people wandering around, policemen out there, events occurring sometimes multiple times a day, etc. that do not make it a typical neighborhood; so it would be wise to table it and get further information.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to table Item 3 until December 7, 2000, and direct staff to work with the County Attorney and return with additional information on each item of the conditional use permit. Motion carried and ordered unanimously.

Item 4. (Z0010104) James Howell Duncan's request for change from GU to ARR on 2.01 acres located on the north side of Outback Road, west of Satellite Boulevard, which was recommended for approval by the P&Z Board.

Commissioner Scarborough inquired if staff talked to Mr. Duncan; with Mr. Enos responding he wants to keep it as two lots.

James Duncan advised he bought two acres; pay taxes on it as one two-acre piece of land; and he would like to have ARR on two lots because the minimum size for ARR is one acre.

Commissioner Scarborough advised the Board has been encouraging people to move to AGR. Chairman Higgs advised the Board has been looking at the area and the impacts on infrastructure; the issue has been to minimize the demands out there; and that is why it has moved to AGR. She stated there is very limited infrastructure and services; attempts to provide necessary infrastructure can be minimized by limiting the number of lots; and that is what the Board is attempting to do with AGR.

Commissioner Voltz inquired if the Board does not want ARR any more and only wants AGR; with Chairman Higgs responding it is trying to keep the number of lots down because of the lack of infrastructure; and ARR is not the problem, it is the density that could potentially build out. Commissioner Voltz stated changing in mid-stream may not be legal; when Mr. Duncan bought the property, he wanted two lots; and now the Board wants him to combine them and use them as one lot. Ms. Bentley advised they are nonconforming lots, so the Board would have the Bert J. Harris Act to be concerned about if it took them from a nonconforming status where they can get two building permits; but from a zoning standpoint, it can go to another zoning category, but it needs to be aware that it would be reducing his building permit rights.

Chairman Higgs advised Mr. Duncan can pull a building permit under GU because it is a nonconforming lot; he can move forward with his present zoning; but he is asking for something different; and as a condition of that, the Board is trying to minimize the cost to the taxpayers. Commissioner Voltz stated that is where the Board would like to go, but until about the last meeting, ARR was not a problem. Commissioner Scarborough stated he was contacted by Department of Environmental Regulation; there are real concerns about what is going on out there; D.E.R. wants to take some action; so the Board may be doing better for people by lessening the density and working it out in a friendly manner rather than letting things come down from the State, because other groups will not be happy with it.

Commissioner Carlson stated the basic issue is ARR which Mr. Duncan can use; AGR is a better way to go; so if the Board has a problem with ARR, it should get rid of that zoning classification and not have to deal with this issue every time there is a request for ARR. She stated there is a lot of things that may be coming forward; but for this request, the Board cannot deny it. Chairman Higgs stated the Board does not have to grant him the ARR zoning. Commissioner Carlson stated he has GU and she is not sure what he would gain by going to ARR. Mr. Enos stated GU would allow one house on each of the lots; and ARR would allow one house or mobile home on each lot, or agricultural use on each lot. Commissioner Voltz inquired if GU would allow Mr. Duncan to build two homes; with Mr. Enos responding yes.

Commissioner Voltz inquired if Mr. Duncan intends to sell one lot; with Mr. Duncan responding no, he wants to be able to put a house on both lots, but money-wise he may need to put a mobile home there until he gets a house built. Commissioner Carlson stated GU does not allow mobile homes.

Commissioner Scarborough stated the property is in West Canaveral Groves; staff is trying to get a group together to visit the issues because there are things happening out there that Department of Environmental Regulation is concerned about; and D.E.R. wants to come and visit Brevard County about that area.

Chairman Higgs stated she had an opportunity to talk to D.E.R. about issues in West Canaveral Groves as well as other areas in South Brevard; it would be a mistake to move off the course the Board has set in the last half of this year; the property owner has an opportunity to build if he so desires; but she is willing to table it, if the Board wants to do that.

Commissioner Voltz inquired if there is an exception that would allow a mobile home on the property temporarily until Mr. Duncan builds his home; with Mr. Enos responding he could use a mobile home for a temporary residence while constructing a house, but not beyond a year; and he would have to obtain the building permit for the house.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to table Item 4 until February 1, 2001. Motion carried and ordered unanimously.

The meeting recessed at 7:08 p.m., and reconvened at 7:23 p.m.

Item 5. (Z0010105) Annika Martin's request for change from GU to ARR on 1.26 acres located on the south side of Desert Sands Avenue, east of Satellite Boulevard, which was tabled to November 6, 2000 P&Z meeting and December 7, 2000 Board of County Commissioners meeting by the P&Z Board.

The Board accepted the recommendation of the P&Z Board to table Item 5.

Item 6. (Z0010106) Julielynn Ulrich's request for change from GU to AGR on 5 acres located on the south side of Boston Avenue, east of Grissom Parkway, which was recommended for approval by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item 6 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 7. (Z0010107) Sandy J. Stewart's request for change from GU to ARR on 2 acres located on the northeast corner of Ardelle Lane and Burning Tree Avenue, which was recommended for approval by the P&Z Board.

Commissioner Scarborough advised the request is to change the zoning from GU to ARR; and inquired if Ms. Stewart heard the previous discussion, and understood what was said; with Ms. Stewart responding yes. Commissioner Scarborough advised the Board is trying to limit the number of units in West Canaveral Groves, so rather than ARR, it is asking property owners if they would agree to AGR.

Sandy Stewart advised she is planning to build a house, wants to put up sheds and other structures, and wants to be able to have a goat and chickens; she would like to have a trailer as a temporary home while building a dome home; and when the home is built, she would like to keep the temporary home as a guesthouse or security trailer, because on the other lot she wants to have a plant nursery in the future. Commissioner Scarborough stated the nursery does not bother him but another dwelling would; and requested Mr. Enos explain what is allowed in AGR. Mr. Enos advised Ms. Stewart can have a separate guesthouse under the current zoning or AGR, but it could not be a mobile home under AGR; however, she could have a single mobile home on the property.

Commissioner Scarborough stated since the Board tabled the other item and has this mode of transition; and because Department of Environmental Regulation is coming to visit Brevard County on this whole area, it would be prudent to table this item as well.

Ms. Stewart inquired if she could sell one lot in the future if she needed to; with Commissioner Scarborough responding it will become difficult in the future; it is not only what is happening here, but what may be happening by the conversations he is getting from the State; and he does not want to lead Ms. Stewart into thinking things are going in her direction when they are not. Mr. Stewart inquired what would AGR allow her to do; with Mr. Enos responding she could have one mobile home or one house, but not both; and she could have a house and a guesthouse because a guesthouse is not considered a full residence. Ms. Stewart inquired if it could be a trailer, RV or mobile home; with Mr. Enos responding it would have to be the same as the principal structure. Commissioner Voltz advised if Ms. Stewart agrees to AGR, the Board could approve it tonight. Commissioner Scarborough stated he could table the item if Ms. Stewart wants to think about it, or postpone it until later in the meeting. Ms. Stewart requested a copy of the AGR zoning information; and Commissioner Scarborough asked Mr. Enos to advise Ms. Stewart what AGR is. Mr. Enos advised AGR is similar to ARR except it is one house instead of two; it allows all the agricultural uses; and it allows a mobile home residence or a site-built residence. Ms. Stewart inquired if she could have her nursery, goat, and raise chickens; with Mr. Enos responding she can have farm animals and the nursery. Ms. Stewart inquired about temporary living quarters while building a house and storage structures; with Mr. Enos responding affirmatively. Ms. Stewart stated she will agree to AGR.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item 7 as AGR. Motion carried and ordered unanimously.

Item 8. (Z0010201) Virginia Ann Tingley's request for small scale plan amendment that increases the Future Land Use Residential Density Map from four units per acre to ten units per acre; and change from RVP to RA-2-10, on 5.75? acres located on the northwest corner of Tingley Drive and SR 3, which was withdrawn from the Agenda.

The Board acknowledged withdrawal of Item 8.

Item 9. (Z0010202) Sampath and Prathiba Vasudevan's request for change from AU to RR-1 and removal of existing CUP for temporary trailer for security purposes on 1 acre located on the north side of James Road, east of Friday Lane, which was recommended for approval by the P&Z Board.

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

Item 10. (Z0010203) Ipco, Inc.'s request for amendment to existing BDP in BU-1 zoning classification, and retaining existing CUP for commercial entertainment and amusement enterprises on 6.82? located on the south side of Fortenberry Road, east of Plumosa Street, which was recommended for approval by the P&Z Board.

The Board tabled Item 10 until December 7, 2000.

Item 11. (Z0010301) Ronald R. and Suzanne M. Anderson's request for change from RU-2-4 to RU-1-13 on 0.274 acre located on the east side of Idle Hour Court, south of Ivory Drive, which was withdrawn by the applicant.

The Board acknowledged withdrawal of Item 11.

Item 12. (Z0010302) Michael E. and Lorraine C. DeMontigny, Marlene Hughes, and Michael E. Hughes' request for change from RR-1 to AU on 50.1? acres located on the east side of Fleming Grant Road, north of Mockingbird Lane, which was recommended for approval by the P&Z Board.

Commissioner Scarborough advised Items 12 and 13 are similar; and inquired if they will be heard together; with Chairman Higgs responding they should be heard separately. Commissioner Scarborough stated people may want to speak on both; with Chairman Higgs responding the Board could incorporate some of the comments into both discussions; but they are separate items that need to be kept separate.

Applicant Lorraine DeMontigny advised the request is to change the zoning from RR-1 to AU on 50 plus acres on Fleming Grant Road; not only is it of historic significance, as it will return land to its previous zoning, but it will also help to maintain the compatibility of surrounding properties by limiting the potential of residential development. She stated the reason for the request is because they had a time line change; originally the time range was two to three years for having horses on the property; they moved that up and have the horses now; and they want to begin preparing the pasture so that when their homes are built six to ten months later, the pasture will be ready for the horses because they do not want to have the horses there unattended. She stated the permitting restrictions are such that if they were to pull the building permit, they would have to have activity on the building or the permit will expire; her understanding is that there is no accessory use prior to the certificate of occupancy under RR-1; and horses are considered accessory use. She stated there are requirements under the Land Clearing Ordinance No. 99-54 regarding a permit for clearing more than one acre; the prerequisite is they would have to have a site plan, building permit, etc.; there are some exemptions in conjunction with an agricultural purpose when active development is not being sought; and that is why they want to change the zoning. Ms. DeMontigny stated they offered to restrict some uses allowed under AU; they do not want mobile homes, dude ranches, horses for hire, or hog farms; and they are willing to raise the minimum square footage of the heated and air conditioned space to 1,600 square feet with a minimum double car garage. She stated some of the issues they have been dealing with are on the P&Z staff comments on consistency with land use regulations; every item has been checked yes regarding consistency; and the average daily trips with the existing zoning would be 430, and with AU it would be 172. She stated in addition to residential home sites with horses, they are seeking horticulture and agriculture pursuits; the question of possible incompatibility alludes to the uses; and they have outlined some of the uses they will not be doing under AU that they are willing to put in a binding development agreement. She stated the request will lower the density of the area and protect the characteristics; and explained the plat showing the area off Fleming Grant Road with their property in the center. She stated the colored tabs are people who spoke in opposition and how far away they are from the property; and the green tabs are those who support it or are neutral to the application. She explained an aerial of the area taken in 1990; noted Connors curve is practically undeveloped; and showed a blue aerial where development has come into the area and changed the character of the area. Ms. DeMontigny stated time has a natural way of changing the character of an area; they are proposing to keep the character as rural as possible by lowering the density from one acre home sites to two and a half acre home sites; and showed a diagram applied to the aerial photo representing the potential of what they can do or a subsequent owner can do under the RR-1 zoning classification if they were to dedicate roadways and develop it to its full potential, keeping in mind the wetland areas and other environmental issues that a developer would have to deal with at that time. She stated they took pictures of the area; there are fences, horses, and green pastures; it is peaceful with spacious home sites; and the traffic is low currently. She stated there is a lot of privacy, beautiful homes, diverse wildlife, and naturally wooded lands; and presented exhibits to the Board of the original zoning change from AU to RR-1 and staff comments addressing the existing land uses, zoning adjacent to the proposal, and their comments regarding RU-1-7 and AU, RR-1 and AU, and RU-1-13. She stated they call it probable compatibility; and that alludes to uses of the property. She stated their intended uses are for single-family residential dwellings, horses, and horticultural and agricultural pursuits; they are trying to prepare the pasture, which takes a long time to investigate what is there with 50 acres, and properly manicure the land taking care to address not taking out trees that do not need to be taken out and placing a pond to address the drainage issues. She stated it does not matter if the land is zoned RR-1 or AU, the water is still going to do what it is going to do on the land; but with RR-1, there is more potential for stormwater runoff than with AU. She stated they have letters in favor of the rezoning; a person who objected originally and live directly adjacent to their property is in favor now; and another person who lives directly adjacent to the property has gone neutral.

Commissioner Carlson inquired if the intent is to create 2.5 acre lots on the 50 acres; with Ms. DeMontigny responding no, she and her husband will take ten acres to build a home; the remaining acreage her Aunt Marlene Hughes, and her parents can figure out how they want to divide it; and their plan is basically to have three homes, a barn, utility building, and horses. She noted they are not developers.

Chairman Higgs advised AU allows packing and processing, and sale of commodities raised on the premises; and inquired if Ms. DeMontigny intends to have agricultural pursuits other than growing plants and grazing horses; with Ms. DeMontigny responding no, as they will be living on the property. Chairman Higgs advised AU also allows fowl raising, chicken farm, foster home or group home, mobile home residential dwelling, landscaping business, fish camps, churches, power substations, sanitariums, convalescent homes, adult congregate living, airplane runways, athletic complexes, stadiums, cemeteries, mausoleums, clinics, composting facilities, crematoriums, farmers markets, hog farms, hospitals, land alteration, private heliports, and schools; and inquired if the applicants are interested in any of those uses; with Ms. DeMontigny responding other than perhaps landscaping, as her husband has a lawn service company, but it would not be where the public would come to their property; and she doubts she would be inclined to start raising plants, as she has a family to raise. She noted they may do composting, but not have a composting facility; and requested an explanation of what land alteration entails. Chairman Higgs advised selling of dirt, etc.; with Ms. DeMontigny responding they will be using the fill from the pond for their house pads.

Brenda Helton advised she owns the land south of the DeMontigny property and is also requesting AU; she supports their request; environmentally, they will protect the land instead of chopping it up into one-acre home sites; there is not enough septic service and no infrastructure out there; so it is a good thing.

Philip Herrle advised he has lived in the neighborhood since 1985; very nice homes have been built there by people buying the property then building; the character of the community has never changed; and retired people looking for a specific area zoned RR-1 found this area in Micco and built new homes. He stated they do not want or need a zoning change because they bought their properties with RR-1 in mind; they take pride in their homes and land; and they do not want or need AU, which would change the character of the neighborhood. He stated he understands what the news owner want to do can be done under RR-1 with variances if needed. Mr. Herrle stated part or all of their property could be sold and who knows what would be there in the future; the applicants knew it was RR-1 when they bought it; not ten miles from the area there are thousands of acres zoned AU; and if it was AU they wanted, they should have purchased AU property. He requested the Board let them keep their RR-1 lots without being burdened by AU zoning in the middle of their beautiful neighborhood.

Pamela Hughes advised she is in favor of the AU, because there are risks if the large parcel is left as RR-1 and joined by another 20 acres, which would allow additional home sites with one-acre lots that would increase the density by 150% of what the AU would allow. She stated if they want to create ranchettes with small farm type things under AU, and offered a willingness to accept some restrictions, it would ensure the nature of the neighborhood would not change. She stated she looked for five years to find a 50-acre parcel zoned AU; no one is willing to sell AU parcels that small; she was a party to an offer for a 75-acre parcel off Babcock Street, which the realtor did not take time to present to the owner; and it is almost impossible to buy AU in small quantities. She stated for a property owner who wants to have a rural area with trees, pastureland, and small ranchettes, the AU opportunity is the last remaining one in the County; and leaving it RR-1 gives the potential for the applicants to sell the land and render it to development at 150% higher density than allowed under AU.

Rick Strate expressed concern about the proposed zoning change; stated the area is completely residential; changing the zoning will have a major effect on the community; and AU would let commercial business to operate in the neighborhood. He stated at the P&Z Meeting, they were told the applicant wanted to have a dude ranch; then they were told the reasons they wanted to change the zoning was to save some expenses on boarding of horses; with RR-1 they are allowed to have horses; and inquired why the zoning change. He stated the homes in the area are in the price range of $150,000 and up; they have a lot invested in their homes and land; and it concerns him to think what the long-term effects of changing the zoning will do to their residential community. Mr. Strate stated when he bought his land, he checked into the zoning to make sure it was all RR-1 so he could build his dream home and not have to live next to a commercial business; and he has $300,000 invested in his home and land and does not want delivery trucks, livestock, dude ranches, etc. in his backyard. He stated if the applicants knew they needed AU property, they should have purchased it; RR-1 is cheaper to buy than AU; Ms. DeMontigny is in real estate and knew it was RR-1; and inquired why should the Board change the zoning. He inquired if the applicant bought the property knowing she would change the zoning; and urged the Board to vote against AU since it is inconsistent and incompatible with their neighborhood. He stated Ms. DeMontigny stated history reverts itself; he cannot think of too many things where history came back and helped; he did not see the map Ms. DeMontigny had showing the green areas of people who were neutral; and inquired if she asked them personally or just marked the map.

Lynn Conroy advised she lives within 500 feet of the property proposed for zoning change and the Helton parcel; presently there are eight homes on Fleming Grant Road, including her home; and further west and north there are 19 additional homes that will be affected by the rezoning of the 20 acres and 50 acres. She stated all their homes conform to signed deed restrictions for RR-1; all vacant lots on Fleming Grant Road that border the parcels have been purchased by individuals who would be obligated to conform to the same deed restrictions; the two tracts were purchased recently; and if they needed AU, it would have been in their best interest and those of the residents for them to have purchased land somewhere else which already carried that zoning. She stated as a real estate agent, Ms. DeMontigny should have know the property could have been bought with a contingency clause on zoning; and she wonders why they did not use that option. She stated they purchased the parcel as RR-1; they knew what they were getting into when they purchased the property; they are almost completely surrounded by residential property; and a zoning change to AU would be incompatible and inconsistent with the neighborhood. Ms. Conroy stated it is not in their best interest for the Board to make a zoning change to help the applicants with the temporary hardship of horses; if the zoning is allowed, it will open the door for the present owners or other subsequent owners to have undesirable conditions such as tenant dwellings, bee keeping, and fowl raising; Ms. DeMontigny said she will not do that, and she has no reason to believe she will not be a good neighbor; but no one can guarantee how long they are going to live somewhere, and she would have to live with the zoning change forever. She inquired who is going to monitor the activities that will go on once the fences are up; will the Board take the responsibility for doing that or is she going to have to do it; and are they all going to be back before the Board next year complaining or having to file complaints about things that are going on. She stated, from the letters of opposition the Board received, and from the people who are here tonight, she implores the Board to not allow the spot zoning to occur as it is inconsistent and incompatible with the residential neighborhood.

Commissioner Scarborough advised there is a methodology where the applicant can agree not to perform certain uses under the zoning classification; many times the Board has entered into binding development plans (BDP) to do that; and it is enforced like anything else, someone calling the County and complaining. He stated there are people who violate the rules all the time; but if there is a BDP, it would be specific to that property; and the only way it can change is to come back to the Board.

Cindi Temple advised she lives across the street from Ms. Conroy and everyone has said what she had to say in opposition to the zoning change. She stated she has small children, has lived there for seven years, and there has been a lot of construction activity. She stated the homes are beautiful; wonderful neighbors have been added; and her main objection to the change is the possibility of a commercial operation going in.

Chairman Higgs inquired if a BDP, which goes with the land, excluded all commercial uses, but allowed the AU, which would reduce the density, what would Ms. Temple's reaction be; with Ms. Temple responding she would be more inclined to agree.

Donald Pearce, Sr. stated he lives next to the land being discussed; and gave each Commissioner pictures of homes on Fleming Grant Road. He stated they are all upscale homes on one-acre lots; when he bought his property and built his home, did not expect to have land use changes on property near his home that would allow businesses, raising of cattle, dogs, chickens, and pigs with all their odors and noise; and he does not believe the Board should allow AU to be placed near so many RR-1 properties. He stated if the buyers wanted AU land, they could have bought it already zoned as such; and requested the Board not allow the change due to AU allowing too many uses that would be detrimental to the quality of life for the people who live on Fleming Grant Road.

Kathleen Pirrung advised her opposition is the same as everyone else's; everyone has made major investments in their homes; and she wonders what could be left open for someone else in the future who may want to buy the property if they chose to sell it. She stated if she wanted to sell her property, someone may say that is AU property and want no part of it; before she bought her property she asked numerous questions because she wanted to know what could and could not be done in the area; and it took two and a half years to find the property they were satisfied with because they knew what could and could not be done in the area.

William Gates advised the reasons given them for the change is so the applicants could clear some land for the horses they have boarded at some expense to them; granting this change to save them a few dollars at the detriment of the neighborhood would not be good for the residents; and if a BDP binds them to restrictions of RR-1, he would not have a problem with it. He stated he does not want chickens or dog kennels, or those type of things in the area.

Carol Lewis Buffurn stated all her points were covered, but she questions the horticulture and agriculture pursuits because they could have a wholesale nursery with trucks making deliveries causing quite a bit of traffic. She stated she is gravely concerned about the effects the change will have on the welfare of their children; several children wait for the school bus on Fleming Grant Road at 6:15 a.m. while it is still dark; and trucks coming in and going out could be dangerous. She stated they are very caring and watch the children, but the lighting is poor; her granddaughter waits for the bus between 6:00 a.m. and 6:15 a.m.; and that is a concern. She inquired who will take care of the horses 24 hours a day if they are put on the property without a

caretaker in attendance until the homes are built. Ms. Buffurn stated as a realtor for 24 years in Indian River County, she encountered similar problems with AU abutting residential areas; a farm was required to move to AU property because of the nuisance of the roosters; so the surrounding residential homeowners are now vigorously protesting the change because of the noise and nuisance that could happen by the proximity of AU zoning. She stated the applicants knew at the time they purchased the property that it was RR-1, made by the County after due consideration; there is no reason to reverse that ruling; and inquired if the County will continue to vacillate between two types of zoning each time an applicant submits a use which is not compatible with the current zoning. She stated most buyers do submit a contract with contingencies based upon getting the required zoning; and she does not want AU because it does not require a residence to be built on the property. She stated an absentee ownership could persist for many years; and inquired why would the Board rezone property that has the potential to be a detriment to the entire area. She stated they can get permits to build the home and barn; and as long as they have their home completed in a year, they can do what they are asking to do under the present zoning.

John LaLime advised he mailed a letter to the Board explaining everything and presented copies of the letter to the Board along with photographs of homes in the area. He stated what he wanted to say has already been said by others.

Chairman Higgs inquired where is Mr. LaLime's home in relationship to the property; with Mr. LaLime responding south of the Helton property.

Linda McLain advised she has lived on Fleming Grant Road since 1973; has been a real estate agent in Micco for the past 25 years; and she opposes the rezoning to AU. She stated 12 years ago, when the Comprehensive Plan was adopted, their area was mostly vacant land in GU and AU; there were a lot of citrus groves and undeveloped tracts of land; with the groves they endured heavy equipment, pick up trucks filled with grove workers coming and going, and pesticides sprayed on the fruit, plus pollution of the Sebastian River from the runoff; but most of those groves are now gone. She stated they could not control the illegal dumping on raw land; it was such a rural area that every time she called the County to ask for information, the person would ask her where Micco was; but the new Comprehensive Plan, in an effort to protect the Sebastian River, required all the properties between Fleming Grant Road and the river to be subdivided into nothing smaller than 2.5-acre parcels. She stated a lot of the land that is close to what the applicants want to rezone has AU designation because the County does not have a residential classification requiring 2.5 acres other than AU. Ms. McLain advised the State purchased 21,000 acres west of the river in their area for a preserve because it finally realized the natural beauty they have there; the Comprehensive Plan allows one-acre home sites with RR-1 zoning; and if anyone has driven down Fleming Grant Road, they would see the homes and know what the area is like. She stated the applicants purchased the land a few months ago, and she wonders why they did not buy AU land since that is what they wanted; the land they purchased are flag parcels; they are not attached to the road by anything other than a 25-foot driveway or a 50-foot driveway in the case of the larger parcel; so if they want to develop those properties under RR-1 or AU, they can only put a limited amount of houses in there and cannot do a subdivision on the smaller parcel with a 25-foot driveway according to County regulations; consequently, the density is not an issue because it is highly unlikely that they would develop a subdivision. She stated personally she would not mind a subdivision; they have some beautiful ones with one-acre home sites just to the north; and the real objection of AU is it will allow the owners to obtain a permit for a barn, build it, and put animals on the property without building a home. She stated a picture is worth a thousand words; and shared a photo with the Board of a five-acre parcel with a two-story concrete block building within a mile of the subject property zoned AU, which was permitted to build a barn in 1997 and has an illegal one bedroom one bath apartment on the second floor. She stated the building has been assessed at $21,790; and it is the major improvement on the fenced-in five acres; there is an absentee owner who rents the property out; there are no improvements on the land in the way of driveway, landscaping, or permanent residence; and under AU zoning, there is no requirement for the improvements to be there. Ms. McLain stated there are ten acres in the same area with another barn and another illegal resident in it; there is another ten-acre parcel zoned AU within a mile of this property; after the animals were moved there, the owner requested permission to put a mobile home there so he could watch his animals; and the mobile home has been there for over five years. She stated there is a 7.5-acre parcel in the same neighborhood fenced with horses; again the owner put a mobile home there so he could watch the horses; the County assessed value of that parcel is $45,000; and with AU zoning there is absolutely no requirement that a home ever has to be built on the land, and no requirement for major improvements to the property. She stated whether that is the intent of the applicants she does not know; but it is a reality for any owner of the land now or in the future; and inquired if the Board finds that it is compatible with their neighborhood which all have values of $160,000 to $200,000. She stated she is speaking as a realtor with some expertise in the area; they have one of the most beautiful areas in Brevard County; and she wants to see it stay that way. She stated under RR-1 the owners can have all the horses they want, but in addition to the barn, they are required to build a house; they can pull the permits at the same time; they can start on the barn and the house, but they cannot do the barn without the house; and if they lived there they may better care for their animals and be more considerate of their neighbors. She inquired what would the County and neighboring property owners gain if the rezoning is approved. Ms. McLain stated the County would get lower taxes for the property while providing the same service to the owners; an absentee owner is a step backwards for their community; as property owners they have been accountable to the County with construction of their homes, driveway improvements, and increased taxes; and they hold the Board accountable for the decision it makes today, which will affect their property values and quality of life.

Chairman Higgs advised the applicant will have an opportunity to rebut.

Ms. DeMontigny advised she has additional exhibits to present to the Board; and inquired if the Temples reside on AU property, how can they object to her request. She stated one of the exhibits include the reasons the P&Z Board stated for why it voted to recommend approval of their request; Exhibit C is the first page with property listed by Ms. McLain's office at 500 Wagon Master Trail; they have that property listed at $575,000; it is a ten-acre AU zoned property; and it states it is a beautiful equestrian farm on ten acres. She stated she has a picture to give the Board if it wants to see what the property looks like. She stated there may be ten acres that are vacant, but it is next to the structure Ms. McLain spoke about that is unattended or has absentee owners; she does not see how that can be an issue when they have one property adjacent to AU zoning at half a million dollars. Ms. DeMontigny stated she also included sales that have happened recently adjacent to AU zoning or across the street from it; the house at 3525 Heather Lane sold for $184,000 in July, 1992; it sold again in July, 1996 for $210,000; and in June, 2000, it sold for $225,000; so it does not look like AU zoning is a detriment to property values increasing on that property. She stated at 9889 Oak Trail, the property sold in 1983 for $160,000; in 1994 it sold for $287,000; and in October, 1999, it sold for $335,000; so there is substantial data that supports the fact that AU is not negative to property values when used as a single-family residence. She stated AU is indicative to this area; the reason they made the request is because they cannot clear for pastures prior to pulling the building permits; and they cannot have horses there prior to the primary structure being built. She stated they want to have the pasture prepared for when they move out there, because they do not want to have unattended horses; and she does not plan to travel 20 miles to take care of the horses. Ms. DeMontigny advised the proposal reduces the number of trips, limits the density, and helps to protect the characteristics of the neighborhood; and subsequent owners will be held to the BDP.

Marlene Hughes advised Linda McLain stated they do not have road frontage; however, they have two one-acre lots on Fleming Grant Road and are not asking to have those changed to AU. She stated if their intentions were to diminish the tree structures and everything that is down there, they would leave it all RR-1 and develop it; but that is not what they want to do; they want to develop it for their own private uses, and have their own nature forest, horses, and families.

Chairman Higgs inquired if Ms. DeMontigny said they want to prepare the pasture but do not want to have the horses on the land before they have a house on it; with Ms. DeMontigny responding that is right; they would be able to use equipment and start preparing the land; and they hope to do a lot of it themselves so they can keep as many trees as possible. She stated they need to seed the pasture, which will take time to grow; and it needs to be substantive for the horses to graze on. She stated they do not intend to have horses down there unattended; their intent I to have the pasture prepared so when the house is done there will be a pasture for the horses to graze on. Chairman Higgs inquired if there is a way to clear that land for the pasture before they build a house under the RR-1 scenario; with Natural Resources Management Section Supervisor Debbie Coles responding there is an exemption in the Land Clearing Ordinance which is not an exemption; it is authorization that the director can give to waive the land clearing requirements under special circumstances. Ms. Coles stated they very seldom use that provision; normally it is used in conjunction with an eminent building being completed; but she believes there is something in the Code that addresses that situation. Chairman Higgs inquired if the Director of Natural Resources could allow them to move forward to get the pasture ready if they were ready to submit all their materials for a building permit; with Ms. Coles responding that is how it was used in the past; but it does not limit the director from considering special circumstances.

Commissioner Voltz advised it has always been the wishes of the Board to down zone property any time it is possible; the fears of some of the residents can be mitigated by the BDP; she would rather see AU with a BDP than all the one-acre home sites; and in the long run, the residents may prefer two or three homes as opposed to many homes on the property. She stated she would support a motion to approve AU because it is prudent to do so in light of the reduced traffic and other issues, and if commercial uses are prohibited in the BDP.

Chairman Higgs advised she thought the idea of reduced density was very attractive and consistent with maintaining the character of the area, so she met with the applicant and suggested a BDP and conditions they could find acceptable. She stated they proposed no mobile homes, no dude ranch, no hog farm, minimum square footage, and a reduced number or horses, which did not deal with the overall concerns of other things allowed in AU that surrounding property owners were concerned with and that could potentially diminish their property values; so she has approached it from there to see if they could get some place where everybody could be comfortable. She stated what was given to her by the applicant at her request does not get pass most of the things that were objectionable such as fowl raising and packing and processing. Commissioner Voltz stated maybe the applicants could put that in the BDP. Chairman Higgs stated she tried to move it in that direction; she met with the residents to see if they could enumerate the things that were most objectionable; they discussed some of those; but if the applicants can move forward and use the land under an exemption that may be acceptable.

Commissioner Voltz inquired if the applicant would be willing to put the issues discussed in a BDP because those were the majority of the concerns of the neighbors; with Ms. DeMontigny responding yes, they did try to get with the neighbors on several occasions, and her phone number has always been available to them to ask her questions and address their concerns. Ms. DeMontigny stated they proposed the BDP at the meeting with Chairman Higgs to go back to the residents, and they got no response; so she does not know if she is addressing their issues or if it would be satisfactory to them. She noted there is no communication going on; they are unwilling to communicate with her; she cannot address what ifs; and she has to have communication in order to effectively address their concerns. Commissioner Voltz suggested tabling the item to get with the applicants and work on a BDP that would alleviate the fears of the neighbors on commercial endeavors, etc.; she would not want that next door to her home either; and it sounds like the applicants do not plan to do that; but if it is not put in a BDP, they assume it can and will be done.

Chairman Higgs advised another issue was AU not being occupied; that should be a part of any BDP; the concept of a barn there and no structure and no time frame is not acceptable; and there are a number of issues that the plan that came back did not address.

Commissioner Scarborough advised of his experience with conflicts between AU and residential properties; stated Mr. Torpy said the BDP he presented was the 8th draft; he cannot vote for something tonight that has not been prepared and had the opportunity for everyone in the community to understand and address it; and it is incumbent upon the applicants to try and resolve the issues. He stated it is so far from a solution that it would be easier to deny the request and start over.

Commissioner O'Brien stated there may be a solution by developing a BDP that would say what is allowed on the property rather than what is not allowed; the applicants could put in the BDP what they want to do; but they would need time to put a plan together, contact all the neighbors, and come to a conclusion. He noted the applicants need to continue trying to communicate with the neighbors and reaching out to the community; they have heard what the neighbors have said tonight; and they should work from that standpoint.

Chairman Higgs advised the only reason to table it is if the applicants have a different feeling bout where they were; she is not sure what they want, and does not feel they are willing to come forward and narrow it down; and unless they want to do that, there is no reason to table it. She stated she could not see where they were getting close enough in their conversations that it was going to get to an acceptable BDP. Commissioner O'Brien stated they paid a substantial fee to appear before the Board; they have an investment in the land; there is a lot at stake for them as well as their neighbors; and in all fairness, they should have the opportunity to go back and rethink how they want to accomplish what they need to accomplish. He stated if they are willing to look at it from a different point of view, is a different ball game; and sometimes people need to stop being stubborn and starting working things out.

Motion by Commissioner Voltz, to table Item 12 until December 7, 2000 Board of County Commissioners meeting.

Commissioner Scarborough stated putting a BDP together, getting the community involved, and discussing the issue will need more time than December 7.

Motion by Commissioner Voltz, seconded by Commissioner O'Brien, to table Item 12 until the February 1, 2001 Board of County Commissioners meeting.

Chairman Higgs stated the RR-1 with a clearing permit would allow them to do what they want to do, so she will vote against the motion. Commissioner O'Brien stated he just wants to be as fair as possible. Commissioner Scarborough stated if they come back and the houses will look like others in the area, the rest of the land is pretty pasture land, and there are no wild AU uses, they would probably get a deal; but if it is anything less, they probably would not get his vote. Ms. DeMontigny stated she has an appointment with her builder on Sunday to sign a contract, so she will have a better plan. Commissioner Scarborough stated people die in auto accidents, and the estate could sell the property to someone who wants to make a lot of money; and unless there is a BDP attached to the property, the Board would not know what could go there. Ms. DeMontigny stated when they come back to the next meeting, they will know specifically and will have pictures to show the Board what they plan to build. Commissioner Scarborough stated Ms. DeMontigny needs to put it in a BDP and circulate it with the people in the neighborhood so everyone will know, item by item, that everything will be good. Ms. DeMontigny stated by then they will know what to put in the BDP.

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

Chairman Higgs stated her office will work with the community and applicants to try and come up with a BDP; and they will get in touch with the people here tonight and outline those things in a BDP.

Item 13. (Z0010303) Kenny and Brenda L. Helton's request for change from RR-1 to AU on 20.24 acres located on the east side of Fleming Grant Road, west of Primrose Drive, which was recommended for approval by the P&Z Board.

Brenda Helton, applicant, presented a packet to the Board; advised she is asking for rezoning of 20 acres south of the previous Item back to AU which will preserve the consistency and character of the area. She stated it has historically been cattle pasture; there is rotting outposts, rusting barbed wire, and an old flow well on the property right now; and they want to return the land to its natural use. She stated they are going to use an agriculture utilization plan; they have been in contact with U.S. Soil and Water Conservation Service, which provided a letter she presented in the packet; they are going to implement a best land management plan that will environmentally protect the property; and it will be maintained in harmony with surrounding properties. She stated U.S. Department of Interior came to check for scrub jays in the vicinity and did not find any; and they gave her a go ahead on the pasture preparation. Ms. Helton stated there has been concern about property values; she provided a letter from the Brevard County Property Appraiser's Office that states the rezoning to AU will not generate a re-evaluation of property around hers or her property; and she spoke to Eddie Carr from St. Johns River Water Management District who is going to work with her on construction of the pond and try to address drainage issues for surrounding properties. She provided pictures to visually aid the Board in the character of the neighborhood; there is a nursery down the street from her property; there is a grove directly across the street zoned AU; there is a house that is less than a mile from her property which they are asking $500,000 for; and it has a barn and is zoned AU. She gave the Board an aerial map showing where her proposed house is going to be; they have a buffer and will have a nice fence; she will build a nice house and have a six-stall barn and workshop; and she signed deed restrictions for the property which are the same as her neighbors. Ms. Helton stated her home will be over 1,600 square feet, so she does not know where the neighbors are getting the idea it will be less than what they have; and they are going to ensure the privacy and serenity of the neighborhood for the present and future neighbors.

Commissioner Voltz advised on Item 12 the Board discussed a binding development plan, and she does not see one in the packet. Ms. Helton stated she does not want anything commercial and did not know she had to present a proposed BDP, and thought it was something she could agree to prepare then submit later.

Chairman Higgs inquired if Ms. Helton is not seeking any AU uses that seem to be a concern other than horses and a barn; with Ms. Helton responding they will have horses; she has a child and if she participates in 4-H, they may get a cow; but they have 20 acres and do not want cattle, chicken or hog farms.

Marlene Hughes advised the Board discussed tabling the issue like her item; the low density for that part of Brevard County, the most southern end before it goes into the river, is appropriate; to let it be developed as RR-1 one-acre lots would be detrimental to the area and the river from runoff; and they are trying to establish a home that would be of an equestrian nature. She stated equestrian homes are more valuable than a typical RR-1 home because of the nature and type of land that it would be on; and she is in favor of the change of their property and Ms. Helton's property.

Lorraine DeMontigny stated she is in favor of Brenda Helton's request; and read a portion of an ad in the Sentinel Newspaper , which stated, "We want to buy our land. Centex Homes, Central Florida's largest home builder and residential developer is aggressively seeking land for single family and multifamily development." She stated she does not want that next door to her, so she hopes Ms. Helton is able to get her AU zoning. She requested the Board stop the urban sprawl and maintain the character of the area by looking to a BDP in the future so they can help to preserve the characteristics of the area and be compatible at the same time.

Chairman Higgs advised she has cards from the previous Item of people who wish to speak, or the Board can incorporate their previous comments.

Rick Strate stated a 1,600 square-foot equestrian house is not his idea of luxury; he works in Windsor and Johns Island; he has a business; and he would not put that as making property value go up. He stated they knew it was RR-1; they do not want to change it or add anything; they want a house and a couple of horses; and inquired why are they asking to change to AU when they can have everything they want in RR-1.

Chairman Higgs inquired what is the minimum house size for RR-1 and AU; with Mr. Enos responding 1,200 square feet for RR-1 and 750 square feet for AU.

Lynn Conroy, Donald Pearce, Kathleen Pirrung, William Gates, Carol Buffurn, and John LaLime requested their comments from Item 12 be considered for Item 13 as well.

Cindi Temple stated her property was zoned AU when she bought it; it had a home and grove on it; she did not change the zoning; they wanted AU and got AU; and the homes selling for $500,000 and $300,000 are on the river.

Linda McLain stated the properties the realtor referenced from Melbourne as being more valuable today are waterfront properties; so she would expect that to happen no matter what area they are in. She stated she does not understand the binding agreement; the people expressed no desire to develop the land, only to live there; so the issue of how many houses are going to go there is pretty small because with the flag lots. She stated the County told her they could have about six houses maximum on the 70 acres; so density is not an issue; and inquired if they can get special exception to clear the land and put in their pastures for their horses until they are ready to build under RR-1, why are they changing the zoning to AU and talking about a BDP. She reiterated that AU does not require a house be built at any time, now or in the future; and inquired if the Board is going to put in the BDP that with the change in zoning the house has to be built within so many months. Commissioner Voltz stated that can be done. Ms. McLain inquired if it is binding if they sell the property to somebody else, and can they come back next year and change it; with Commissioner Voltz responding they can do it, but the residents would have to be notified again. Ms. McLain stated she wants to be a good neighbor and would love to see those people put up houses and have horses; none of them object to that; they can do that under RR-1; and inquired why is it being changed, and why is there a request to change it. She stated they do not want the density change; they are not going to develop the property; and again inquired why change it, if they can do the pasture and build the house and the barn with the present zoning.

Commissioner Scarborough inquired if it would be beneficial to rezone it to AU; with Mr. Enos responding RR-1 allows horses only as an accessory us to a residence; so they must build a house first before placing horses on the property. Commissioner Scarborough stated if that is included as part of the BVDP, what would happen; with Mr. Enos responding they would have RR-1 zoning. Commissioner Scarborough stated so there is no reason to table the item. Ms. McLain stated that is how they feel, so why is the Board discussing it. She stated they want them to live out there and have beautiful homes and horses; they have no objection to that; it is changing the zoning and putting a barn up with no house that are issues; and she does not see how the Board can do that in a BDP.

Chairman Higgs stated she thought they talked about that the other day; obviously they did not communicate; a lot of things can be put in the BDP that would nail down concretely all the things being discussed tonight; and to change the BDP would requiring going through the same process as changing zoning. She stated one advantage with AU is it would reduce the density; Ms. McLain said they did not have access, but it was represented to the Board that they do have access; and she cannot answer that, but it would be advantageous to the Fleming Grant Road, Micco, Main Street and other parcels around there by considering a BDP that would reduce the density. She stated she sees that as an advantage long term for the area. Ms. McLain stated once the door is opened, people take advantage of it, like the picture she gave the Board; there have been other things that happened in the area; they want to preserve the area and are concerned about the river and everything else; and they would like to welcome new neighbors there, but AU opens the door to a lot of things that may discourage a new buyer if they were to sell their homes.

Pamela Hughes advised the majority of Ms. McLain's remarks were addressing the DeMontigny/Hughes item; the situation the Board is discussing now is the Helton petition; and one of the things she said she wanted to do was to restore land to the prior use. She stated they have seen in Florida few examples of how detrimental some of the changes have been; the Kissimmee River Restoration Project, Florida Barge Canal Discontinuation and Restoration, and the St. Johns River Restoration Project are a few; the taxpayers are paying for some of the past land management uses that were not appropriate; and the Heltons' plan to put the land back to its natural state and restore it to its agricultural status is beneficial, so she would be in favor of seeing that. She stated she lives in RR-1 at the present time which was surrounded by AU land; the P&Z Board will be listening to a business application in an area a half mile from her home at the next hearing; and she would hate to see all the AU land end up being commercial land. She stated the Heltons have good ideas and she is in favor of their request.

Brenda Helton stated they have access; and if they joined together there would be 70 acres that could go to one-acre lots; there are wetlands that can be mitigated; and she does not know what the people want. She stated three years ago they were here saying they did not want a development; the land was rezoned to RR-1 because a subdivision was proposed; they did not want that either; and here she is trying to lower the density, make it a much nicer place than a subdivision, more quiet and serene with no traffic, and they do not want that either.

Commissioner Scarborough stated he had a lot of conflicts between AU and residential in his District; there are things that happen on AU land that people do not want in their neighborhoods; it is not necessarily only a density issue; it is a use issue; and the fact that there is a barn with animals does not lend itself well with every neighborhood. He stated that is what the Board needs to recognize; and if it wants to go with a BDP it essentially would be saying it will be AU but developed as RR-1; and it would be spinning its wheels to go around a circle to no where.

Chairman Higgs advised the Board made a motion on the last item to table it; it would be inconsistent not to do the same for this item; she did not vote for the first item, but will vote on this item because it is only fair to do it the same way.

Motion by Commissioner Voltz, seconded by Commissioner O'Brien, to table Item 13 to February 1, 2001 Board of County Commissioners meeting.

Chairman Higgs recommended staff talk to the applicants about the exception that seems to be possible; and advised the residents that staff will get in touch with the residents and applicants to try and resolve the concerns. She stated the Board has talked about AU and RR-1; there were parcels that wanted to go from AU to RR-1; so the Board needs to look at those carefully because there are conflicts that are built in. Chairman Higgs called for a vote on the motion. Motion carried and ordered unanimously.

Item 14. (Z0010401) Pineda Crossing Corp., John H. Moynahan, Jr., President's request for amendment to the Preliminary Development Plan in a PUD on 44.51? acres located south and adjacent to Long Leaf Drive in Pineda Crossing Subdivision, Phase 2, running the entire length of the subdivision, which was recommended for approval by the P&Z Board.

Jay Moynahan, President of Pineda Crossing Corporation, advised what he has given the Board to look at are two plans; they are asking for an amendment to the Pineda Crossing PUD because the old plan which was devised in 1991, provided two sections of half-acre lots along the southern border; and over the years people's attitudes have changed and there is a trend that it is a lot more desirable to have buffers between subdivisions and neighborhoods. He stated the new plan installs a buffer, lowers the density, provides more open space, and has fewer lots; and everybody in Pineda Crossing seems to think it is great. He stated he met with the people in Windover Farms who had more questions, but after answering all their questions, they seem to think it is great also; so he is requesting the Board approve the amendment.

Commissioner Carlson stated what she handed out is a condition to the change; it calls for reservation of a 14-foot wide easement to be given to the County through the common open space tract in Pineda Crossing, Phase 4; and the reason she asked Mr. Moynahan to consider it was because when the Board dealt with Grand Haven Subdivision, those people wanted right-of-way that was between Windover Farms and them; they needed it for many different purposes; and what she asked Mr. Moynahan to do is allow the County an easement to potentially put a linear park in there at some point. She stated all she is trying to do is reserve the right to go to the neighborhoods adjoining the area and talk to them about a linear park; Mr. Moynahan already met with Windover Farms residents and they brought up the question about a potential linear park; he was not very clear on what connections were where and all that; so she met with them and he realized what the County was trying to do. Commissioner Carlson stated Mr. Moynahan has agreed to provide an easement to the County; he submitted the conditions 1, 2, 3, 4 and 5 as listed; and inquired if Mr. Moynahan had any more issues.

Mr. Moynahan stated the five issues Commissioner Carlson handed out is probably similar to what he and she talked about earlier and what he put in writing; however, when he met with the Pineda Crossing and Windover Farms residents, he was not aware of the linear park issue; they were interested in the buffer being an all natural preserve area, which he represented to them that it was; and that was his intent at the time. He stated Commissioner Carlson's idea of creating a linear park system is a good one; but the people he spoke to before, and anybody else who has an interest, should be notified that in the future a linear park may be considered, and be given an opportunity to state their concerns, comments, and objections. Commissioner Carlson stated that is fine because it would be difficult to get 100% approval of anything. She stated she thinks the property adjoins another easement; and if the Board addresses it in the future, she intends to go to all the neighboring homeowners and talk about it because the County does not have a master plan for linear parks in place. She stated the residents do not know what it means; there has to be a lot of education out there before anything happens; but she does not want to limit the County's ability to potentially connect communities that want to be connected; so this is a good project and she appreciates Mr. Moynahan working with her office. She stated she will move the item with the conditions Mr. Moynahan brought forward.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to approve Item 14, with conditions that a 14-foot easement be given to the County through the common open space tract in Pineda Crossing Phase 4, centered between the southern lot lines of the southernmost lots in Phase 4 and the northern lot lines of the lots along the north perimeter of Windover Farms Subdivision, provided that: (1) the easement is used for the sole and exclusive purpose of the County constructing and maintaining a pedestrian walkway therein; (2) a substantially similar walkway has been constructed within the Grand Haven Subdivision to the west connecting to the Pineda Crossing Subdivision boundary line; (3) the Pineda Crossing and Windover Farms residents who live within 500 feet of the proposed walkway are notified in writing of such a proposal, and a majority approve same; (4) the construction of the walkway will preserve the pre-construction water drainage and retention patterns and volumes; and (5) all government agencies having regulatory jurisdiction over said common open space tract have approved the construction. Motion carried and ordered unanimously.

Item 15. (Z0010501) Jonathan F. Lau, Jr., Trustee for Myrtle F. Lau Revocable Trust's request for Mixed Use District boundary expansion and change from AU to BU-1 on 8.88 acres located on the south side of U.S. 192, east of New York Street, which was recommended for approval by the LPA for MUD expansion, and BU-1 with a 100-foot buffer on the south property line and no adult entertainment by the P&Z Board.

David Moallem, representing the applicants, advised the Laus have owned a 20-acre tract on the south side of U.S. 192 since the 1950's; it was an orange grove and has been their residence until the mid-1990's when Ms. Lau had to move into a nursing home; because of her high expenses, they sold most of her assets; and this is the last asset left in the family. He stated they sold 11 acres with existing AU zoning; the remaining property is requested for change to BU-1; he worked closely with the neighborhood, and there is no opposition; and there are some letters of support that were sent to the Commissioners. He stated U.S. 192 is the main retail corridor in South Brevard; it is also the entrance to South Brevard from Disney World to the beaches; and it is heavily developed between Wickham Road and U.S. 1, but from Wickham Road to I-95, development is spotty because of the lack of sewer service. Mr. Moallem advised the property has water but not sewer; the 11 acres were sold with existing AU zoning because a higher density would have required utilities being brought to the site; and they have come to the conclusion that the best and highest use of the remaining 8.8 acres in the front is commercial use. He stated there is BU-1 to the north to a depth of 850 feet; to the west is commercial and residential professional zoning classifications to a depth of 575 feet; the frontage is valuable property, and a lesser depth would leave a piece of property without utilities that could not be utilized; so they decided to request BU-1 on the entire depth and leave a 100-foot buffer. He noted any commercial development would be at least a couple of hundred feet from the closest residence. He stated he had a lot of inquiries requesting the purchase of a larger commercial development; the aerial view from 1997 shows the Sam's Club to the west of the property at a depth of 1,000 feet; and even though the County's policy is to keep a lesser depth along U.S. 192, the policy of one size fits all does not fit the situation, because they have only one median cut and would like to see the property used by a large developer who has the financial strength to bring sewer to the site and use that median cut so it does not adversely impact traffic. He stated if they sold the property in smaller parcels, the one median cut would become an issue, and smaller users would not have the financial strength to bring sewer to the site; so this is a win/win situation. Mr. Moallem stated he prepared a binding development plan (BDP) with at least a 100-foot landscaped area from any residential development; it excludes adult entertainment or an commercial development that would be objectionable; there is a lot of adult entertainment in that area; and he received a lot of calls to expand the adult entertainment because it is across the street. He stated that would be detrimental to South Brevard and U.S. 192; and that is why it has been included in the BDP. He stated he is not opposed to doing other concessions if the Board sees fit; and requested its approval of the request.

Commissioner Voltz advised the east side of the property abuts RU-1-7; and inquired what type of buffer will be there to protect those people; with Mr. Enos responding to the east is a road right-of-way between the parcel and a set of lots that front to the west; because there is a right-of-way between them, there would be standard setbacks off that right-of-way for the commercial parcel, which would range from 15 to 25 feet, depending upon how the property behind it is developed. Commissioner Voltz inquired if they would have to put a fence up; with Mr. Enos responding no, not against the right-of-way. Commissioner Voltz stated on the west side is BU-1 and RP; and inquired if the County has to do something there; with Mr. Enos responding no, there will be standard setbacks which could range from as low as five feet to zero, depending upon the kind of construction that is done, but no buffer is required between them. Commissioner Voltz inquired if the 100-foot buffer is included in the BU-1 zoning; with Mr. Enos responding it is part of the application. Commissioner Voltz inquired if there is any reason to rezone it BU-1; with Mr. Enos responding the Board does not have to rezoning it if it chooses to recognize that through the BDP they would be allowed to have retention in that 100 feet.

Mr. Moallem stated it is in the BDP; they actually excluded the retention area of 60'x449', so they can leave the 100 feet from each side completed in wooded and landscaped condition to further isolate the development; but there is only one home which touches the buffer area at one point. He stated any commercial structure would sit at least a couple of hundred feet from that home; and they are not opposed to doing whatever landscaping is necessary to make sure they have minimum impact.

Commissioner Voltz inquired if the landscaping can be left in its natural state; with Mr. Moallem responding absolutely. Commissioner Voltz inquired if a portion of the 100 feet being used for water retention and to ensure that portion is not next to the house; with Mr. Moallem responding the property is 649 feet wide; the retention area would be 449 feet; so they can leave the 100 feet on both sides.

Ms. Bentley advised the way the BDP is written, there could be a 400-foot retention pond in the 100-foot buffer, so it would not necessarily be a 100-foot vegetative buffer. Chairman Higgs inquired if there will be no buffer; with Commissioner Voltz responding it looks like the people to the south will not have a buffer. Ms. Bentley stated an AU parcel would not necessarily have a buffer. Mr. Moallem stated when they should those properties, they had deed restrictions put on them that the property to the north would be commercial; they were sold at a lesser price because of that; they have 660 feet of depth and 165 feet of width; if they decide to build a house, they are not going to push it all the way back; but if the Board wants to give additional protection, he is not opposed to it. Commissioner Voltz stated there needs to be at least a 50-foot buffer between the commercial property and the homes. Mr. Moallem stated the BDP says they will leave a minimum of a 100-foot landscaped buffer from any home; so if the development comes at a later date and there are homes built on that portion of property, they will have to maintain the 100 feet and would have to move the retention area. Commissioner Voltz stated the way it is written does not seem to allow for the full 100 feet in the back. Mr. Moallem stated the language should be changed to say if a home is built there, they will still maintain a landscaped buffer. Ms. Bentley inquired if the retention area could be put outside the buffer area; with Mr. Moallem responding they can do a minimum 50-foot buffer. Commissioner Voltz recommended the retention area not go within 50 feet of the property line; with Mr. Moallem responding that is fine.

Commissioner Carlson stated the BDP says water retention area no larger than 60 feet, which would only leave a 40-foot buffer; and inquired if Mr. Moallem is agreeing to 50 feet; with Mr. Moallem responding yes.

Motion by Commissioner Voltz, seconded by Commissioner Scarborough, to approve Item 15 with a BDP providing for a 100-foot vegetative buffer from all residential property and not less than a 50-foot buffer where the retention area will be put. Motion carried and ordered unanimously.

Chairman Higgs advised Mr. Moallem came to her office and she will provide the clerk with place a summary of their conversation. Commissioner Voltz advised she had a phone conversation with Mr. Moallem.

Item 16. (Z0010502) The County Line of Brevard, Inc.'s request for change from TU-2 to BU-2 retaining existing CUP for sale of alcoholic beverages on-premise consumption on 2.71 acres located on the northeast corner of I-95 and U.S. 192, which was recommended for tabling to the November 6, 2000 P&Z Meeting and December 7, 2000 Board of County Commissioners meeting.

The Board accepted tabling of Item 16.

PUBLIC HEARING, RE: NORTH MERRITT ISLAND DEPENDENT SPECIAL DISTRICT BOARD RECOMMENDATIONS OF SEPTEMBER 14, 2000

Chairman Higgs called for the public hearing to consider recommendations of the North Merritt Island Dependent Special District Board, made at its public hearing on September 14, 2000, as follows:

Item 1. (NMI 00901) Brevard County Board of County Commissioners, on its own motion, authorized administrative rezoning on property owned by Ronald E. Dimenna, on which a development order had been submitted initiating a consideration of a change in zoning classification from SR with CUP for security trailer to RR-1 with removal of CUP, which was recommended for approval by the District Board.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to approve Item 1 as recommended by the North Merritt Island Dependent Special District Board. Motion carried and ordered unanimously.

Upon motion and vote, the meeting adjourned at 9:20 p.m.

ATTEST:

NANCY HIGGS, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

SANDY CRAWFORD, CLERK
(S E A L)