November 4, 2004

The Board of County Commissioners of Brevard County, Florida, met in regular session on November 4, 2004, at 5:30 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chair Nancy Higgs, Commissioners Truman Scarborough, Ron Pritchard, and Susan Carlson, Assistant County Manager Peggy Busacca, and Assistant County Attorney Eden Bentley. Absent was: *Commissioner Jackie Colon.

The Invocation was given by Chair Nancy Higgs.

Commissioner Susan Carlson led the assembly in the Pledge of Allegiance.

APPOINTMENT, RE: BREVARD PREPARES MITIGATION COMMITTEE

Assistant County Manager Peggy Busacca stated County Manager Tom Jenkins sent a memo concerning the Brevard Prepares Mitigation Committee requesting a staff member be appointed to attend in Commissioner Carlson’s place due to the large number of anticipated meetings; and that staff member is recommended to be Assistant County Manager Don Lusk.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to appoint Assistant County Manager Don Lusk to the Brevard Prepares Mitigation Committee, replacing Commissioner Carlson. Motion carried and ordered unanimously.

APPROVAL TO SCHEDULE, RE: EXECUTIVE SESSIONS

Assistant County Attorney Eden Bentley requested permission to schedule executive sessions on November 9, 2004 at 11:30 a.m. to discuss litigation related to Charles Hood v. Brevard County and Edward and Betty Jean VanBlarcom v. Brevard County.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to grant permission to schedule executive sessions on November 9, 2004 at 11:30 a.m. or as soon thereafter as possible, to discuss litigation related to Charles Hood v. Brevard County and Edward and Betty Jean VanBlarcom v. Brevard County. Motion carried and ordered unanimously.

ITEMS TABLED OR REMOVED FROM AGENDA

Chair Higgs inquired if any items have been requested to be tabled or removed. Zoning Manager Rick Enos advised there are many items requested for tabling including IV.B.11 and IV.B.12, which are The Great Outdoors and Lynn Hansel; they were tabled by the P&Z Board to its December 13, 2004 meeting, but Mr. Hansel prefers they go to the Board of County Commissioners meeting of December 14, 2004.

Item IV.B.11. (Z0410104) The Great Outdoors Premier RV/Golf Resort, Inc.’s request for change from GU to RVP on 4.82 acres located south of SR 50 and west of Plantation Drive, which was recommended to be tabled to the December 13, 2004 Local Planning Agency meeting and Item IV.B.12. (Z0410105) Lynn R. Hansel, Trustee’s request for change from GU to RVP on 3.32± acres located on the west side of Plantation Drive, south of SR 50, which was recommended to be tabled to the December 13, 2004 Local Planning Agency meeting.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to table Items IV.B.11 and IV.B.12 to the December 13, 2004 Local Planning Agency meeting and the December 14, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Mr. Enos advised Item IV.B.15 has been recommended to be tabled to December 2, 2004.

Item IV.B.15. (0410202) Daniel Freeman’s request for change from BU-1 to TR-2 on 0.67 acre located on the west side of Burnett Road, north of Catalina Drive, which was recommended by the P&Z Board to be tabled to the November 8, 2004 P&Z meeting and the December 2, 2004 Board of County Commissioners meeting with no reprocessing fee.

Motion by Commissioner Pritchard, Commissioner Carlson, to table Item IV.B.15 to the November 8, 2004 P&Z meeting and the December 2, 2004 Board of County Commissioners meeting with no reprocessing fee, as recommended by the P&Z Board. Motion carried and ordered unanimously.

Mr. Enos advised Item IV.B.17 has been recommended to be tabled to February 3, 2005.

Item IV.B.17. (Z0405103) Seasons in the Sun, LLC’s request for amendment to an existing Binding Development Plan in an RVP zone on 38.10 acres; and change from RVP with a BDP to RU-1-7 with an amendment to the existing BDP on 79.13 acres located on the south side of SR 46 and east side of Turpentine Road, which was recommended by the P&Z Board to be tabled to the January 10, 2005 P&Z meeting and the February 3, 2005 Board of County Commissioners meeting, with indication this is the last time the P&Z will consider tabling this item and applicant required to pay an 80% reprocessing fee.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to table Item IV.B.17 to the January 10, 2005 P&Z meeting and the February 3, 2005 Board of County Commissioners meeting, with indication this is the last time the P&Z will consider tabling this item and applicant required to pay an 80% reprocessing fee. Motion carried and ordered unanimously.

Mr. Enos advised Item IV.D.1 has been recommended to be tabled to December 2, 2004 Board of County Commissioners meeting.

Item IV.D.1. (NMI40901) Michael Gaich, Trustee’s request for Small Scale Plan Amendment (04S.13) to change the Future Land Use Map designation from Neighborhood Commercial to Community Commercial and change from AU to BU-1 on 8.0 acres located on the west side of North Courtenay Parkway, across from Kings Way and south of Church Road, which was recommended by the North Merritt Island Dependent Special District Board to be tabled to its November 18, 2004 meeting, for readvertising.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to table Item IV.D.1 to the November 18, 2004 North Merritt Island Dependent Special District Board meeting on November 18, 2004 for readvertising. Motion carried and ordered unanimously.

Mr. Enos advised two items have been requested to be tabled by the applicants after the P&Z Board meeting, but more than seven days prior to tonight’s meeting so they are automatic tablings. He stated there is a request to table Item IV.A.13 to the December 2, 2004 Board of County Commissioners meeting.

Item IV.A.13. (NMI40706) John R. Bunkley, Trustee’s request for change from GU and RU-1-13 to all RU-1-13 on 5.35 acres located on the west side of N. Tropical Trail, north and opposite of the western terminus of Grant Road, which was recommended for denial by the North Merritt Island Dependent Special District Board; and the applicant requested tabling to the December 2, 2004 Board of County Commissioners meeting.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to table Item IV.A.13 to the December 2, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Mr. Enos stated another request for tabling was for Item IV.B.3 to February 3, 2005; and it is also automatic.

Item IV.B.3. (Z0410303) Micco Farm and Grove, Inc.’s request for change from GU and AU to RR-1 on 760± acres located on the south side of Micco Road, west of Bird Drive, which was recommended for approval by the P&Z Board, and requested by the applicant for tabling to the February 3, 2005 Board of County Commissioners meeting.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to table Item IV.B.3 to the February 3, 2005 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Mr. Enos stated one request came in today to table Item IV.B.16 to December 2, 2004; but it is not automatic.

Item IV.B.16. (0410203) Joyce Phillips, Trustee’s request for change from BU-1 to RU-2-15 on 2.53 acres located on the northwest corner of Crescent Beach Drive and Highway A1A, which was recommended for approval by the P&Z Board; and applicant requested tabling to the December 2, 2004 Board of County Commissioners meeting.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to table Item IV.B.16 to the December 2, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Mr. Enos stated Item IV.B.1 was withdrawn by the applicants.

Item IV.B.1. (Z0410301) Laurel Lee Buescher and Samuel J. McRoberts’ request for change from GU to RR-1 on 100 acres, located on the south side of Micco Road, west of Barefoot Bay, which was recommended for approval by the P&Z Board; and withdrawn by the applicants.

Chair Higgs stated Items IV.A.13, IV.B.1, IV.B.3, IV.B.11, IV.B.12, IV.B.15, IV.B.16, IV.B.17, and IV.D.1 have been dealt with.

PUBLIC HEARING, RE: ORDINANCE AMENDING ANIMAL RELATED ZONING
REGULATIONS FOR CONSISTENCY WITH STATE REGULATIONS, ENHANCED
USABILITY, AND CLARITY

Chairman Higgs called for the public hearing to consider an ordinance amending animal related zoning regulations for consistency with State regulations, enhanced usability, and clarity.

Planning and Zoning Interim Director Robin Sobrino advised staff requests Item IV.F, Ordinance Amending Animal Related Zoning Regulations, be tabled to February 3, 2005.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to continue the public hearing to consider an ordinance amending animal related zoning regulations for consistency with State regulations, enhanced usability, and clarity to February 3, 2005 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Commissioner Pritchard stated there are a lot of people present for this item; a lot of information has been passed out; and some of it has created misinformation. He requested staff make a list of the names and phone numbers of those present for the item so everyone who is here to speak to the item will be contacted so they will know exactly when the item is coming back and
what it will contain. He stated in trying to kill a mosquito the Board used a sledgehammer instead of a fly swatter and went far overboard on what it may have intended to do; and the misinterpretation that has happened created quite a response from the community. He stated he would appreciate keeping everyone in the loop and clearly identifying what the Board will be doing. Ms. Sobrino requested all those present for the item make sure to give their names to staff; and stated they will make sure they are involved in the process.

Commissioner Scarborough stated he has been in contact with some of the people who are interested; and they are hoping to set up a meeting in District 1; and anyone interested in the meeting may contact his office at 264-6750.

ANNOUNCEMENT

Chair Higgs advised Commissioner Colon is running late, but is expected within the next 15 minutes.

EXTENSION, RE: EMERGENCY PROCLAMATION

Assistant County Manager Peggy Busacca stated at the last meeting of the Policy Group, it extended the Emergency Proclamation for seven days; and it will expire tomorrow. She stated as the Policy Group has been dissolved, the Emergency Proclamation can only be extended by action of the Board of County Commissioners; and the main reason staff is requesting it be continued is because of the waiving of the requirement for a public hearing to determine vulnerable beachfront structures. She stated staff is continuing to receive requests for those; and as additional erosion is occurring from natural wave action, people are finding that their homes are in more danger.

Commissioner Pritchard inquired if seven days will be sufficient; with Ms. Busacca responding under Florida Statute, it must be done seven days at a time, which means if the Board wants to extend it, it will have to meet again to do that.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve extension of the Emergency Proclamation to November 12, 2004. Motion carried and ordered unanimously.

*Commissioner Colon’s presence was noted at this time.

DISCUSSION, RE: RAKING OF BEACHES IN UNINCORPORATED AREAS OF BREVARD
COUNTY

Assistant County Manager Peggy Busacca stated the issue is the raking of the beaches. Utility Services Director Richard Martens stated they are picking up debris with FEMA contractors around the County; and as part of that, they are also collecting storm debris from the beaches, not only vegetative and drift debris but also debris from dune crossovers, swimming pools, decks and the like that have ended up on the beach. Mr. Martens stated they are well into the project; FEMA has said that is eligible for reimbursement; however, the contractor doing the work and several people have commented that they believe tons of debris have been buried by the wind and tides, and may at some future point be exposed if there is a northeaster. He noted removing the debris below the surface is not covered under the FEMA contract; but since the contractor is on board now and capable of doing it, he wanted to ask the Board’s consideration of the raking process, which would be basically raking the subsurface on the beach to try and expose any of the debris that may have been covered since the hurricanes. He stated the problem is that it is not FEMA reimbursable; and the cost for performing the service is approximately $160,000; so the question is whether the Board would like to spend the extra money and try to remove some debris it may not see at this time.

Chair Higgs inquired what is the funding source; with Mr. Martens responding Mr. Rodriguez has suggested using the money from the disposal fund for this project. Commissioner Carlson inquired if there is any way to use TDC beach renourishment dollars; with Ms. Busacca responding this is suggesting penetrating the beach to a depth of one foot; and it would require raking to a depth of six feet in order to fluff the sand sufficiently to have a tourism benefit. Chair Higgs inquired how immediate is the decision and can it be moved to another meeting. Mr. Martens responded the contractor is approaching 50% completion of the surface work on the beach; so there is some additional time. He advised staff is not recommending it; but if the contractor leaves, the Board will miss an opportunity; and if it is something the Board thought was significant, staff wanted to bring it to the Board’s attention. Chair Higgs inquired if Mr. Martens is not recommending it; with Mr. Martens responding no.

Commissioner Pritchard stated if there is debris, the Board is not going to know it until the sand washes, so it could be spending money on something that does not need to be done. Mr. Martens stated that is part of the concern; there are a number of staff people who think it is questionable whether it needs to be done; but six months from now if there is a strong northeaster, there could be a lot of lumber sticking out of the sand. Commissioner Pritchard stated the Board could address it then; with Mr. Martens agreeing.

Commissioner Carlson stated it would be more expensive then; with Mr. Martens advising it would be more expensive then because there is a contractor with the equipment onsite right now. Chair Higgs stated there may be contractors needing work six months from now; this is a time when people in the business of moving things around are in great demand; but in six months they may be more available and willing to do it at a lesser rate. Chair Higgs advised she does not hear a motion.

PUBLIC HEARING, RE: TABLED ITEMS OF PLANNING AND ZONING BOARD MEETINGS
OF SEPTEMBER 8, 2003, MAY 10, 2004, JULY 12, 2004, AUGUST 9, 2004, AND NORTH
MERRITT ISLAND DEPENDENT SPECIAL DISTRICT BOARD MEETING OF
JULY 15, 2004

Chair Higgs advised of the procedure to address the Board and the time limits; and called for the public hearing to consider tabled items of the Planning and Zoning Board meetings of September 8, 2003; May 10, 2004; July 12, 2004; and August 9, 2004; and the North Merritt Island Dependent Special District Board meeting of July 15, 2004, as follows:

Commissioner Carlson inquired if the Board wishes to address the memorandum from County Attorney Scott Knox dated October 25, 2004 regarding school, correctional, and law enforcement concurrency. Chair Higgs stated there are things she would like to discuss. Commissioner Carlson inquired if the Board wishes to do it on a case-by-case basis. Chair Higgs advised the issues relating to law enforcement will apply to the first item.

Commissioner Pritchard stated Commissioner-elect Helen Voltz is in the audience; she will be coming on board November 16, 2004; and congratulated her on her election.

Item IV.A. (Z0309107) Richard J. and Patricia A. Connolly, Peter Vander Haeghen, and Peter F. and Kristine A. Woldanski’s request for Small Scale Plan Amendment (03S.11) to change Future Land Use Map designation from Residential 12 to Community Commercial; and change from RU-1-13 and RU-2-10 to BU-1 on 1.8 acres, located on the east side of US 1, north of the northern terminus of Indian River Drive, which was recommended for approval of Community Commercial by the Local Planning Agency and BU-1 by the P&Z Board, and the owners amended their rezoning request to RP.

Commissioner Scarborough stated the Board tabled this because there was a small area plan; he had an opportunity to meet with the neighbors and the applicants and go over the small area plan; and the comments will come to the Board on November 14, 2004. He stated the plan is available. Planner Todd Corwin advised the plan is available in the Planning and Zoning Office; the phone number is 633-2069; and staff welcomes any comments the public might have.

Patricia Connolly thanked Mr. Corwin, Mr. Enos, and Commissioner Scarborough as well as the staff involved in completing the Small Area Plan needed to make the decision tonight. She stated they requested a Comprehensive Plan amendment to Community Commercial and rezoning from BU-1 to RP, reflecting a change that fits better into the area; and they are only requesting that one-third of the property, bordering US 1 with a depth of 200 feet be rezoned to provide future capability to build a professional office for doctors, lawyers, etc. She stated it would leave a heavily vegetated area between the business and their new home on the river of approximately 400 feet; when they first looked at this, there was a request to go to BU-1; but since then they have amended their application to RP; and with the change to RP, there is no reason for an amendment to the Comprehensive Plan. Mr. Enos advised that is correct, amendment to the Comprehensive Plan is not necessary.

Commissioner Scarborough stated it is strictly a zoning issue to RP; but he understands there was some additional discussion of restricting that to certain uses within RP with a binding development plan; so this has moved a little since they started.

Chair Higgs inquired how many residential units are allowed now on the property; with Zoning Manager Rick Enos responding under the current zoning, they could get as many as nine units on the property. Chair Higgs inquired how many could they have under the amended request; with Mr. Enos responding under the RP zoning, if it is limited to office uses only, which the applicant has stated is the intent; and without the limitation, RP is permitted to have up to five units to the acre. Chair Higgs stated there would be a reduction in density; with Mr. Enos responding with the limitation stated, that is correct.

Richard Stanton stated he is speaking for the whole neighborhood; this is a riverfront residential neighborhood; and if the proposed rezoning was on River Road, it would not be allowed to happen. He stated the CRG voted against this two to one; and he knows it was changed from BU-1 to Pritchard, but requested the Board deny the rezoning.

Commissioner Pritchard stated the Citizen Resource Group voted against this two to one; and inquired if only three people were present at the meeting; with Mr. Stanton responding yes.

Jeannette Elliott stated she lives on US 1; she bought her house in 1952; so she is in the area of the rezoning. She requested the property remain zoned residential with no more than two family units per acre; and stated that would make everybody happy.

Richard Butler stated he is a new owner in the area on Cocoa Boulevard; he bought the property at the end of 2003; and one of the attractions of the property, aside from having a house on the river, was building a real estate and mortgage business on the property while still having 400 feet of vegetation between his workplace and residence. He stated it was part of his decision-making process in purchasing the property; and he would like the Board to consider the rezoning. He stated it will not have a major impact, particular with the RP classification for offices. He advised he has a beach on the river, which he will be fluffing after the meeting.

Ron Melton stated he has operated a business in the immediate area for the past eight years; and he is in favor of the rezoning. He stated this would promote the growth of the community.

Chair Higgs inquired if Kristine Woldanski is one of the applicants; with Ms. Woldanski responding no, Richard Butler purchased the property from them approximately a year ago, so she is now a neighbor. Ms. Woldanski stated she lives on North US 1; they have a split zone property; in the front they have BU-1-A and in the back is residential; and they have a house on the river. She stated they are in favor of the rezoning of the property; they have a 450-foot by 100-foot lot; and the lot in question is deeper than that. She stated it is a good opportunity for commercial-type businesses.

Pete Woldanski stated he is favor of the rezoning; and he has a BU-1-A property on US 1 with a riverfront home in the back.

Peter Vander Haeghen stated he is one of the applicants; he is not on the CRG; but they were not invited to that meeting and were not aware of what power the group had in the process. He requested the Board not consider that recommendation because they did not have an opportunity to participate in the process. Commissioner Scarborough inquired were the applicants not noticed of the meeting; with Planner Todd Corwin responding the applicant at the time was represented by Randy Woodruff; however, the CRG recommendation was for the Comprehensive Plan amendment, which is no longer a part of the request. Commissioner Scarborough inquired if the applicant was not informed; with Mr. Corwin responding the applicant was notified and a representative was there. Mr. Vander Haeghen indicated he was not aware that Mr. Woodruff was present. He stated as a result of the meeting that Commissioner Scarborough sponsored earlier this week, two of the people who had written letters of objection told them that they were no longer objecting as long as they brought the request down to RP, and if they would further limit it to the first four permitted uses, single-family detached dwellings, single-family attached dwellings, multiple-family dwellings, and professional offices. He stated they just got the request for a binding development plan; it was recommended they get an attorney; but the timeline was too short to make it for this meeting. He stated he understands, if the Board decides to go forward with approval tonight, the Board can make that restriction a part of the motion; and that is acceptable to them.

Chair Higgs stated she just received two more cards from people who wish to speak on this item; the Board has not allowed the applicants to present their final rebuttal; and inquired if the Board wishes to allow the speakers to speak. Commissioner Scarborough stated he would like to let them speak; and if there is something new, the applicants can rebut. Chair Higgs requested all future cards be submitted in a timely manner so they can be heard as a part of the process.

Commissioner Pritchard inquired if it is the Land Use CRG that has approximately 20 members; with Mr. Corwin responding the Land Use CRG has 14 members, but typically there is attendance of three to five members per meeting. Commissioner Pritchard stated out of 14 members, only three people attended and voted; with Mr. Corwin responding that is correct. Chair Higgs stated the Land Use amendment is no longer on the table. Commissioner Pritchard stated his point is the Land Use CRG does not have a good attendance; his representative has not been notified of the meetings; and he is beginning to question why they have the committee.

Helen Moore stated she wishes to speak against the zoning and land use change; it is easy to change it; but if something becomes an annoyance, it is almost impossible to undo it. She stated there are several enclaves along US 1 already; and every time another one comes in, that makes more reason for the next one, so soon it will all be commercial. She reiterated she is opposed to it.

Doris McMahon stated she is opposed to the rezoning because it will create more traffic and there will be more undesirable places in what is now a nice residential area.

Ms. Connolly stated Ms. Moore lives next to the Redfish Inn, which is a bar that is noisy; Ms. Moore has lived there for some time; but the original letter Ms. Moore wrote said she has lived in a quiet peaceful neighborhood for the last 30 years. She stated their intent is not to do anything other than possibly in the future have a real estate office or a lawyer’s office; the wrong impression has been given to people; but she hopes that has been corrected.

Commissioner Scarborough stated there has been a sequence of events that has occurred; the Board had asked, because the property is so valuable and can change so rapidly in usage from the lagoon to the US 1 frontage, for staff to take a better look at it; and staff did a report, which the Board will hear on December 14, 2004. He stated his overall impression of the meeting Monday was that there is still a lot of confusion about the difference between zoning, Comprehensive Plan changes, and small area plans; and it would be his desire to table the matter to the January zoning meeting so the report can be heard. He stated otherwise the Board has just structured and handed out a small area plan that is not fully understood as to the dynamics of what is going to occur.

Mr. Enos advised there is no January 2005 zoning meeting; but there is one on February 3, 2005. Commissioner Colon inquired if it could be done at a regular meeting; with Commissioner Scarborough responding he prefers to let people come in the evenings.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to table Item IV.A.1 to the February 3, 2005 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item IV.A.2. (Z0407107) Esther Teitelbaum, Trustee’s request for change from AU and BU-1 to EU-2 with a BDP on 10.69 acres located on the east side of US 1, south of Canaveral Groves Boulevard, which was recommended for approval by the P&Z Board with a binding development plan stipulating no driveway access to US 1.

Commissioner Scarborough stated Clay Henderson was a Commissioner in Volusia County.

Attorney Clay Henderson, representing Esther Teitelbaum, stated they have been before the Board twice before; he was here the first time just before Hurricane Charley and the last time right after Hurricane Jeanne; and in the meantime, they have worked through this significantly. He stated he appreciates the effort of the staff in getting them to this point; the property is a small piece between US 1 and Indian River Road; it is approximately 11 acres just north of Cocoa; and it is currently zoned BU-1 and AU. He stated the staff report indicates that the density allowable is 14 units; in the revised binding development plan that is before the Board, there is no change in that; and they are going down from 16 to 14 units, so there is no change in density on the property. He stated there were questions in August about the property; they went to the St. Johns River Water Management District for a jurisdictional determination; and there are approximately three acres of wetlands. He stated staff was good in working with them to help identify those areas; and the new binding development plan commits them to come in under the County’s Open Space requirements. Mr. Henderson stated they will reserve approximately 35% of the site under the terms of the Open Space provisions; and they think that will be a good thing. He stated the question was also raised about the applicability of the new Comprehensive Plan amendment; while this item was going through the cycle, the Board transmitted in July, a Comprehensive Plan amendment that reduced the density in the area to approximately one unit per acre; and they have gone back and forth with this. He stated they think they are consistent with the Comprehensive Plan amendment; they respect the desires of the residents that it not create any kind of precedent because of the issue of transition; and they are not asking for any increase in density. He stated the revised plan that is before the Board has a reduction to fourteen units as well as a commitment to live within the Comprehensive Plan commitment to protect 35% of the space under the Open Space provisions. He stated this came to the Board with a recommendation of approval from the P&Z Board; but there was a condition that there be just one access onto Indian River Road; however, in working with staff, the recommendation was that they may want to put a driveway access on both US 1 and Indian River Road to protect the wetlands in the center; so to meet staff’s concern as well as the concern of the neighbors, the Board will see in the binding development plan a condition that they will not have a road that goes straight through. He stated that is one change from the P&Z recommendation; and it will satisfy everyone’s concerns. He stated he is hopeful the neighbors who are present will speak in support of the item. He advised he appreciates the help of staff and working with all the citizen groups who have made an effort to work to help their neighborhood. He stated they are well intentioned; they have done a good job on this; and they provided him with good input on this project.

Larry Swonger, representing the Briarwood Manor Homeowners Association, stated their homes abut the proposed development; and he is here to support the development plan that has been proposed. He stated Mr. Henderson has worked with their group; and they feel it is a good use of the land and conforms to the intent of the amendment.

Beverly Sudermann stated she is in support of the project, and concurs with Mr. Swonger that this would be a good addition to the neighborhood. She thanked staff for working with them; and advised it was a pleasure to work with Mr. Henderson.

Commissioner Scarborough stated this area came back without any comments; the report will be considered on December 14, 2004; and Mr. Henderson sort of got caught by the small area plan. He commended Mr. Henderson for working with the neighbors; stated there is an agreement with the neighborhood; they also worked with staff on wetlands and how to structure it; and this is the way things should work.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to approve Item IV.A.2 with a binding development plan. Motion carried and ordered unanimously.

Item IV.A.3. (Z0405101) Lawrence W. Lucas, Lloyd and Jacqueline Louise Lucas, James and Linda S. Lucas, and Housing Authority of Brevard County’s request for change from AU and RU-1-7 to RU-1-11 with a binding development plan on 105.71 acres located on the northeast corner of Wiley Avenue and US 1, which was recommended for denial by the P&Z Board; and Item IV.A.5. (Z0407105) David C. and Cynthia R. Ramage’s request for change from IU to RU-1-11 with a binding development plan on 40.067± acres located on the west side of Harry T. Moore Avenue, north of Wiley Road, which was recommended for approval as GU by the P&Z Board.

John Genoni, representing the applicants, stated they are requesting Item IV.A.3 and IV.A.5 be considered together because both parcels are part of the development plan they are going to present this evening. He stated Brad Smith will present the site plan.

Brad Smith stated the graphic shows the two parcels, the Lucas and Ramage parcels, which are truly one site; and thanked the Board for considering them jointly. He stated the zoning is AU on the Lucas parcel; there is a small part to the north that the Housing Authority owns that is zoned RU-1-7; and the Ramage parcel is zoned IU for industrial land use. He displayed a map showing what the land would look like if the zoning was changed to RU-1-11 as requested; displayed a Future Land Use Map; and stated the area shown with diagonal crosshatching would be Residential 4, allowing four units per acre residential. He stated the aerial view shows the context of what is actually on the ground; and pointed out US 1, SR 46, Mims Elementary School, the Post Office, and Old Dixie Highway, which runs through the west part of the site. He stated there is some drainage that runs under US 1 in an east/west direction through the site; and there is some north/south drainage that runs through that they will see in looking at the Concept Plan. He stated in terms of the current land use, there is a problem of inconsistency that the Board should correct; and the rezoning request would correct the inconsistency with the Comprehensive Plan as residential is not allowed within industrial land use. He stated right now they are not maxing out the density; their request is reasonable and acceptable density; the Comprehensive Plan allows four units per acre; and they are at 62.5%. He stated they have submitted binding development plans and worked closely with staff on them. He stated they have taken steps to further maximize the spaciousness of the property; the Code says that RU-1-11 are lands that are single-family residential of a spacious nature; they have also used the Open Space Subdivision Ordinance in developing the plan; and they think the Board will be pleased with the effect. He stated he also wanted to mention concurrency problems; that issue came up as a question about level of service policies; and the short answer is no, they do not stop the Board from increasing density according to the memo the County Attorney prepared for the Board dated October 25, 2004. He stated school impact fees are covered in the binding development plan; and those will be paid. He stated community involvement has been an exciting proposition in this process; Commissioner Scarborough was very helpful in identifying key groups to involve in the planning process; and they had seven meetings with the East Mims Civic League, three with the Mims Civic Association, and two with the Garden Club as well as meetings with all surrounding neighborhoods. He stated there was a North Brevard County meeting, which 278 residents and County staff attended; there have been 25 meetings with small neighborhood groups; and they had 238 phone interviews. Mr. Smith distributed booklets; and advised they document the public involvement process, including an itemization, community letters, and a number of signatures of support. He submitted the original documents for the record. He read aloud a letter from Steve Jack, Mims Community Group Leader, to Commissioner Scarborough, as follows: “As a leader of the Mims Community Group, I would like to express our desires to have the Commissioners approve the rezoning of the Lucas property known as Gen Development, Inc./Hamlin Grove Development at the corner of US 1 and Wiley Road in Mims. There have been numerous community meetings throughout the last few months and this has resulted in the community approval of the present master plan designed by Brad Smith Associates, Inc. These plans have been changed in response to the community’s desires and wishes. This group represents approximately 250 people who approve of the present development plan. The current request for rezoning to RU-1-11 for the 105.71 acres is recommended. Steve Jack.” He stated some concerns were voiced; and he wants to go through those. He stated there is a preference for lots fronting Wiley Road and Hickory Circle.

Commissioner Scarborough stated everybody has put in a tremendous amount of time; but unless there is a problem, the speaker can save time for rebuttal. Mr. Smith stated he will provide the plan. Commissioner Scarborough stated the applicant spent a tremendous amount of time on this; when it first came forward, there were a lot of questions and concerns from the community; and all of them have been addressed in extreme detail with a great deal of courtesy; and he appreciates that there are questions beyond the school and those issues.

Chair Higgs stated she does not have questions about the development itself, but about consistency. Commissioner Scarborough suggested hearing from the community; and if there are any questions, Mr. Smith can come up and address them.

Shawn Harris, representing the East Mims Civic League, stated Mr. Smith, in his presentation, addressed most of the issues; and thanked Commissioner Scarborough for helping them in the process. He stated initially they had a lot of questions; the applicants answered most of them; and if they could not, staff answered most of them. He inquired if the issue of the abandonment of Old Dixie has been withdrawn; with Commissioner Scarborough responding the applicant indicates it has been withdrawn. Mr. Harris stated rumors spread quickly; they had numerous meetings; every question and concern has been addressed; and inquired on Wiley Road and Hickory Circle, will those be buildable lots; with Mr. Smith responding yes. Mr. Harris recommended the Board approve the item tonight.

Roxanne Knox-Martinolich stated she is a resident and property owner at 3050 Old Dixie Highway; she attended several of the meetings that were held by Steve Jack and Commissioner Scarborough; and she had several questions. She stated Gen Development met with her on an individual basis and answered a lot of her questions; and she is very excited about the
development coming in. She stated her concern was whether it would have an impact on her as a property owner, water, schools, and things like that in the area; and all her questions have been answered. Ms. Knox-Martinolich stated she is excited about growth in Mims; and requested the Board vote for the rezoning. She stated she is a businessperson; she talked with her neighbors and wrote letters to everyone on her street; and she has not heard anything negative from her neighbors. She stated she has talked to other business people in the area, and has heard nothing negative about this development. She stated this is located across the street on the east side of US 1, adjacent to where Walkabout Golf Course is going to be; it is going to be a beautiful subdivision that will add to the value in the Mims area; and there are a lot of people cashing in on the increased value of the property in the area now. She stated they are looking forward to more of that in the future; and reiterated her request for a favorable vote from the Board.

R. C. Kirk stated he and his wife own ten acres north of the Ramage property and fourteen acres to the south of it; they went to the meeting during the summer for a presentation, and think it would be good; and they are in support of the project.

Commissioner Scarborough stated he does not think there is anything to rebut.

Chair Higgs stated she would like to discuss again the issue of consistency with the Comprehensive Plan; the Board talked about the issue and the availability of deputies at a recent meeting; and she wants to provide for the Board and for the record a memorandum from the Sheriff’s Office. She stated the staff of the appropriate office, under the authorization of the Sheriff, has provide a 1.186 ratio of deputies to citizens; that does not meet the standard of the Comprehensive Plan; and she has given the memorandum to the Clerk. She referred the Board to the memorandum from the County Attorney dated October 25, 2004, which says, “the level of service for police protection is mandatory as set forth in the Future Land Use Element 1.2; and stated therefore as to police protection, the Policy requires police protection in the County in accordance with the applicable policy set forth in the provisions in Section 12 of the Future Land Use Element. She stated the Capital Improvements Element applicable to law enforcement establishes a ratio of two deputies per 1,000 residents as an advisory level for the purpose of calculating it; and suggested the Board use the document provided by the Sheriff. She stated she also provided the Fifth District Court of Appeals ruling in the case of Mann v. Board of County Commissioners of Orange County; Section 163 of the Florida Statutes reads, “After Comprehensive Plan or element or portion thereof has been adopted in conformity with this Act, all development undertaken by and all actions taken in regard to development orders by governmental agencies in regard to land covered by such a plan or element shall be consistent with such plan or element as adopted.” She stated it also reads, “In the decision from The First District Court of Appeals of the State of Florida in 1999, the County’s empowered by Statute to disapprove an application for site approval if it finds that a proposed development’s inconsistent with any of the objectives in the Comprehensive Plan.” She stated page 9 of the ruling says, “This court concludes that these policies and objectives are specific enough to be taken into consideration and used as a basis for the Board’s denial, citing a case in the first District Court
of Appeals in 1999. This court finds that the Board observed the essential requirements of law because it has statutory authority to deny the zoning request based on the rezoning’s inconsistency with the elements of the Comprehensive Plan.” Chair Higgs stated clearly the courts have said the Board needs to be consistent; State law says it needs to be consistent; and in the case of Babcock LLC on October 26, the County Attorney provided a summary of the findings of fact, which as a guiding document outlines the need to be consistent with the Comprehensive Plan and to meet the requirements of capital Improvement and facility siting, capacity needs, and densities in regard to providing appropriate services and public facilities. She stated she does not believe the Board can approve a development that goes from 43 units to 253 units on Item IV.A.3; and in Item IV.A.5 there is additional land that relates to the development, and in that it is going from industrial to 120 units, so the Board, to be consistent with the Comprehensive Plan, needs to disapprove this item.

Commissioner Colon stated it is wonderful that the community has come together; and she specifically likes all the meetings and that questions have been answered and addressed. She stated obviously this took a lot of time; more people should reach out to the community and get feedback before coming before the Board; and she is pleased to see this.

Motion by Commissioner Colon, seconded by Commissioner Scarborough, to approve Item IV.A.3 with binding development plan.

Commissioner Carlson stated she is going to go with the motion; but she wants to put on the record her reasoning for her decision. She stated she reported back to the Board about her meeting with School Administration that was inconclusive as far as where it is going with density issues other than the policy it currently has. She stated after reading the County Attorney’s memo regarding all the things the Board discussed, such as the issues of law enforcement and school capacity, she thinks the Board did a disservice when it okayed the zoning issues where it acknowledged there was an impact coming forward and as long as the binding development plan identified that impact fee, it allowed it to go through; it set a precedent; and that places the Board in a position that is difficult to defend if challenged. She stated on school concurrency, that is a very difficult thing to get a challenge on because of the way school concurrency is currently legislated, requiring an agreement with all cities to apply it; and if the Board starts arguing school concurrency, it is going to have a difficult time defending that position. She stated the Board has hit the ball; it is now in the School Board’s court; and she would like to see the School Board take some decisive action as to the problem with existing overcrowding. She stated the Board will scrutinize each request; but it has to go forward with anything that it can apply an impact fee to because that is what the Board acknowledged at the beginning. She stated Commissioner Scarborough said it created a problem by allowing two or three developments to go through with a binding development plan, saying they could pay $2,800 or whatever the impact fee would be once it was put in place. She stated the Board created its own problem; it led folks down a road where they anticipated the Board allowing them to build and develop with potential increases in density; but then it put them on hold. She stated she will be voting for the motion and will be reviewing all of those that were tabled with this issue in mind, so there may be some she votes for and others she does not after looking at compatibility and other things; but for the issue of school capacity, she will have to vote for it.

Commissioner Scarborough stated the Board cannot ignore the Comprehensive Plan or any element or portion thereof; however, the Board got itself in a problem with the binding development plans, starting with Ben Jefferies, and then one after another to the point where he does not think he could offer an agreement to someone and tell somebody else no. He stated as to the number of deputies, that was discussed extensively before the Board; and his feeling is the Board cannot walk away from this issue either; however, the language is inherently ambiguous. He stated if someone said blah, blah, blah in the Statutes and said to comply with it, he would not know how to comply with blah, blah, blah; and the language was such that one could not understand what a deputy was because it talks about residents in the County. He inquired if they should subtract those in the incorporated areas; and stated deputy is a statutory term, but it took no consideration for enforcement in the incorporated areas. He stated deputies are not used strictly in the street patrols; they are also at the jail and in the courts; but they are not available to the Board, so there is a need to go back and revisit the issue. He stated the Board has asked staff to revisit the issue; and inquired when is that coming back; with Ms. Busacca responding on November 30, 2004.

Chair Higgs stated she understands that the standard in the Comprehensive Plan is two deputies per 1,000 residents; and that standard is important to comply with. She stated the information she has from the Sheriff talks about people who are actually responding to needs on the street; they have calculated that from the Chief Law Enforcement Office of the County; and they have taken that in regard to the unincorporated, which is the only jurisdiction over which the Board’s Comprehensive Plan is applying and for which it must apply the criteria to the zoning issues. She stated the criteria means how fast will someone get to a house to provide assistance; and it does not define some of the criteria; but if the Board takes into account what it has been provided by the Sheriff, then the rational, practical, common sense approach of the Comprehensive Plan is trying to provide people with response times for acceptable law enforcement at one’s door when one needs them there. She stated the standard is one that is used throughout the nation; and it is a meaningful standard. She stated the standard that is occurring in the unincorporated area of the County means that people do not get to one as quickly as they need to; the standard of 1.186 is not acceptable; and the Board needs to grapple with that with the substantial and competent evidence and to deny rezonings on this issue as well as others that increase the over demand on the resources as well as when it does not meet the standards that are set in the Comprehensive Plan.

Commissioner Pritchard stated the Board needs to vote on this item; the Board can belabor this back and forth; he has said before that Chair Higgs is wrong; and he stands by that. He stated even Sheriff Williams disagreed with it in a previous memo going back two years ago; the County has not lost any deputies; it has added deputies; and the data that has been used is incorrect.

Commissioner Carlson stated she agrees the Board needs to vote; she also agrees it needs to go by the Comprehensive Plan; but she thinks the Board should give the new Sheriff an opportunity to look at this and the Board should analyze it. She stated there needs to be some cleanup in the Comprehensive Plan to make this more specific and understandable so it can be applied properly.

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

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to approve Item IV.A.5 with binding development plan. Motion carried and ordered; Commissioner Higgs voted nay.

Item IV.A.4. 0405201) Bruce A. and Lynda L. Gutoski’s request for change from BU-1 to RU-2-15 on 1.18 acres located on the east side of South Banana River Drive, north of Worley Avenue, which was recommended for approval by the P&Z Board with a binding development plan limited to an over-55 community.

Rochelle Lawandales, Lawandales Planning Affiliates, commended Chair Higgs for her many years of service to the County; and thanked her for the assistance she has given her on particular items. She stated she is representing an item that the Board has seen several times; there has been substantial evidence and testimony given to the Board of County Commissioners to show that the request to rezone the 1.18 acres from BU-1 to RU-2-15 is consistent with the area of South Banana River Drive; and they are requesting RU-2-15, which would enable an upgrade to the property, eliminating a boatyard that has been there for many years. She advised this and another item further down in the Agenda, if approved, would eliminate two of the remaining businesses in the area; and this is an example of smart controlled growth within an urban area that is fully served by all facilities and infrastructure. She stated it is compatible with the surrounding area; and there are individuals present who are willing to speak in support of the item. She stated when this originally was considered by the P&Z Board and the Board of County Commissioners, they indicated willingness to invoke a binding development plan to limit it to an over-55 community; but now that the Board has imposed impact fees, they would like to eliminate that stipulation and just pay the impact fees. She stated they meet the criteria for rezoning; and if there are questions, she will be glad to answer them.

Jim Diriso stated he lives on South Banana River Drive, just down the road from the project. He advised he came earlier in the year to speak in behalf of another matter related to the project and mentioned that he and his wife, during their routine walks, talk to all the neighbors; and they have not met one person who is against the project. He stated it is smart and safe zoning; the property is a boatyard; they have 20-foot pontoons being dragged in and out on the road; and whenever there is a vehicle like that with a trailer, which is 40 to 50 feet long counting the truck, it is very dangerous. He stated he is sure the owner is trying to make a living running the boatyard; but this is a golden opportunity to eliminate a traffic and safety hazard for the people, not only the people who live there, but people who happen to come down the road, are not familiar with it, and do not know that a big tractor trailer can come pulling onto the road with a 20-foot boat on the back of it. He stated all of the neighbors he has talked to are 100% in favor of this item; residential is far superior in this setting to commercial; they have no problem with commercial; but it is now the odd parcel out with one little building and traffic that is a nuisance and problem for the upscale condominium marina project; and it does not fit.

Commissioner Pritchard stated he has spoken with Ms. Lawandales as well as with the neighbors; he is very familiar with the property; and it is going to be an enhancement to the neighborhood. He stated he would like to approve the item with the removal of the over-55 designation in the binding development plan.

Chair Higgs stated she is going to vote against the item based on her previous comments on Items IV.A.3 and IV.A.5.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve Item IV.A.4 with the elimination of the over-55 provision. Motion carried and ordered; Commissioner Higgs voted nay.

Item IV.A.6. (Z0407203) Steven J. and Beth M. Hoskins, Jason Carmine Uvaro, Michael Francis Duffield & Carl F. Uvaro’s request for change from BU-1 to RU-2-15 with a binding development plan on 1.41 acres located on the southeast corner of 20th Street and South Orlando Avenue, also having frontage on the west side of South Atlantic Avenue and north side of Summer Street, which was recommended for denial by the P&Z Board.

Attorney Mason Williams, representing the applicants, stated the property is in South Cocoa Beach; he lives adjacent to the property in the River Falls Estates Subdivision; and the original request before the P&Z meeting was from BU-1 to RU-2-15. He stated the River Falls Estates Homeowners Association objected at the P&Z meeting; since then the Association has met with the applicants and reached an agreement; and the applicants requested he represent them and the Association consented because it supports the project. He stated they have agreed to amend the request and enter into a binding development plan for zoning of RU-2-12 with a maximum density of 13 units with luxury townhomes on the property. He stated River Falls
Estates has withdrawn any objection, and supports the project now. He stated this is a blighted area; it is an old putt-putt golf course; and it has been vacant for over a decade. Mr. Williams stated trash is dumped on the property; there are old trailers to the north of the property that are nonconforming; and this will lead the way for those to go away as well. He stated it is compatible; the area is a mixture of multi-family residential and commercial, mobile homes and homes; there are trailers and light commercial to the north; there are condominiums to the east; and the Board approved a greater density development to the west of this property. He stated the vote at the P&Z meeting was split; and that related to the impact fee question that had not been decided at that time. He stated it will be an enhancement to the area; any questions of surrounding homeowners have been satisfied; and requested approval.

Commissioner Pritchard stated he has spoken to Mr. Williams and the applicants about this item; he is familiar with the property; and the change will be an enhancement to the neighborhood. He stated he was especially pleased when Mr. Williams became involved because he is a resident in the neighborhood; and he got the Homeowners Association and the applicants to work together to come up with a good plan.

Chair Higgs stated she will vote against the motion because it is inconsistent with the Comprehensive Plan as she cited under IV.A.3 and IV.A.5.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve Item IV.A.6 as RU-2-12 with a binding development plan and no more than 13 units. Motion carried and ordered; Commissioner Higgs voted nay.

Item IV.A.7. (Z0407204) Sixty Banana River, Inc.’s request for change from BU-2 to RU-2-15 on 1.6± 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 with a binding development plan limiting development to an over-55 community until a school impact fee is adopted.

Todd Peetz, representing the applicant, stated he is available to respond to questions if that is the desire of the Board.

Commissioner Pritchard stated he has met with the applicant; he is very familiar with the property; it is at the north end of South Banana River Drive, adjacent to SR 528, and backing up to a 7-Eleven; and it is in a state of disrepair so the change will be an enhancement. He stated he assumes the applicant does not want the binding development plan limiting development to an over-55 community; with Mr. Peetz advising no, that was based on the need at the time. Commissioner Pritchard requested Mr. Peetz go over the density they are looking for; with Mr. Peetz responding the density for RU-2-15 is 15 units to the acre; they have 1.6 acres; and they are proposing to tear down the existing restaurant and bar and six dilapidated condos and put in high-end multi-family units. Mr. Peetz advised they could get 24 units based on the acreage; the site will accommodate that number of units with no problem; and they will meet all setbacks. Mr. Peetz stated the property currently has no landscaping; they hope to improve the site; by going from a bar and restaurant to residential they will reduce the potential number of trips by 800; and there will be much less need for law enforcement to come to the site. Commissioner Pritchard stated Mr. Peetz mentioned 24 units; and inquired if a binding development plan limiting it to 24 units would be acceptable; with Mr. Peetz responding if that is what the Board chooses to do. Commissioner Pritchard inquired if the Board feels it is necessary. Mr. Enos advised if they have 1.6 acres, it would generate 24 units with RU-2-15, so it is not necessary.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to approve Item IV.A.7 with the elimination of the over-55 requirement.

Chair Higgs inquired currently how many units can they get; with Mr. Enos responding with BU-2 they could get five or six units. Chair Higgs stated she will vote against the motion and will reference her comments on Items IV.A.3 and IV.A.5.

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

Item IV.A.8. (Z0407302) C. Steven Douglas and Debra K. Douglas, Co-Trustees’ request for change from AU to RR-1 on 17.35? acres located on the south side of Micco Road, west of Fleming Grant Road, which was recommended for approval by the P&Z Board.

Real Estate Broker Jim Domineau, representing the applicants, stated the Douglas family has been in the Micco area for many years; they have business interests there; and tonight they are asking for a zoning change from AU to RR-1 on 17.35 acres on the south side of Micco Road. He stated the land is bound on the north by Barefoot Bay and on the south side by another part of Barefoot Bay; they started the process in April and received a favorable review from staff; and they were recommended for approval by the P&Z Board. He stated the item was then tabled by the Board as the discussions of impact fees were being laid out; at the time of the first presentation, they said they would agree to any impact situation the Board would impose; and at a meeting on September 29, 2004, the Citizen Resource Group recommended an amendment to the Future Land Use Plan, but also recommended the Douglas parcel be exempted as it was adjacent to Barefoot Bay and is a transitional area. He stated on October 19, 2004, they came before the Board and spoke in favor of the current land use plan in the area; the area is a growth area; the planners and other professionals who put together the Future Land Use Plan saw the wisdom of going to one unit per acre; so what they are asking for is to take their guidance and implement the change. He stated a lot has been said about keeping the rural nature in this area; but he submits that one unit per acre is rural; so what they are asking for is exactly what the Board is saying it wants to do.

Mike Cunningham, representing the Micco Homeowners Association, stated this item has been tabled several times and has gone on for several months; it is a good project for the community; and the applicant has agreed to abide by the provisions of the Open Space Ordinance and to submit a binding development plan. He stated the P&Z Board recommended approval; and on behalf of the community, requested the Board approve the project.

Chair Higgs stated normally she would not disagree with Mr. Cunningham; however, she will disagree on this item. She stated the level of service as she outlined when the Board discussed Items IV.A.3 and IV.A.5 and the inconsistencies with the Comprehensive Plan should and must result in the denial, so she cannot support a motion to approve.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to approve Item IV.A.8 as recommended by the P&Z Board. Motion carried and ordered; Commissioner Higgs voted nay.

Mr. Enos stated it is not clear to him whether there is a binding development plan or not; Mr. Cunningham mentioned one; but there is no binding development plan in the file; he does not believe one has been submitted; and he needs direction. Mr. Cunningham stated in the discussions with Mr. and Mrs. Douglas over the past few months, they have said if necessary and if it was recommended that a binding development plan be submitted, they would be more than happy to do it as well as go along with the conditions of the Open Space Ordinance, so they think it is a win-win situation. Chair Higgs stated Mr. Cunningham’s support and that of the Micco Homeowners is with the understanding of a binding development plan specifying the Open Space Ordinance would be used; with Mr. Cunningham responding yes. Chair Higgs stated she would suggest that be a part of the binding development plan; and even though the Board already voted on the motion, it can add to the binding development plan. Commissioner Pritchard inquired if the applicant agrees to the addition; with Mr. Domineau responding when they first came before the Board, they said they were not submitting a binding development plan, but were asking for a zoning change; and he respects what Mr. Cunningham said, but they did not include a binding development plan at that time. Chair Higgs stated Mr. Cunningham indicated it was his understanding that the applicant was willing to abide by that; with Mr. Domineau responding he believes they would, but they did not submit one. Chair Higgs inquired if the applicants are willing to do that.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to reconsider Item IV.A.8. Motion carried and ordered unanimously.

Mr. Domineau conferred with the applicants; and stated the binding development plan would be acceptable.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to approve Item IV.A.8 with a binding development plan committing to use of the Open Space Subdivision Ordinance, Section #62-3000.

Commissioner Scarborough stated the binding development plan will come back to the Board for review; and the rezoning is contingent upon that.

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

Chair Higgs stated she would like the minutes to reference her comments made previously under Items IV.A.3 and IV.A.5.

Item IV.A.9. (Z0407303) Steven E. and Marilyn J. Nagel’s request for change from AU to RR-1 on 3.93 acres located on the northeast corner of Valkaria Road and Toby Avenue, which was recommended for approval by the P&Z Board with a binding development plan to include a $4,400 school contribution per unit.

Steve Nagel stated they have been before the Board several times and the item has been tabled; they want to change a 3.93-acre parcel that fronts on Valkaria Road and Toby Avenue from AU to RR-1; and they want to divide it into three equal building lots with single-family residences on the lots.

Chair Higgs stated looking at the map that is part of the package, one will see that there are no RR-1 parcels on that side of Valkaria Road; it is entirely AU; and while there is some argument that could be made in regard to size, the zoning is inconsistent with the AU there and should not be approved on this parcel because it is inconsistent and incompatible.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to deny Item IV.A.9.

Commissioner Pritchard stated in looking at the size of the parcels that are on the west side of the road, they appear to be approximately one acre, which would fit in with what the applicant said; the applicant has almost four acres; and he would like to do three lots. He stated there are also lots that have been carved out north of the applicant’s property that appear to be the one-plus acre size; and the same is true for the lots that are on the south side of the road, so it looks as if the neighborhood, with the exception of one parcel that is directly east of the applicant’s property, has been carved into smaller units. He stated he is not sure what the implication of zoning is on the smaller size lots; but it appears that the smaller lots have been orchestrated throughout the neighborhood; and he is at a loss as to why the Board would not allow the applicant’s parcel to be divided into three buildable parcels.

Chair Higgs stated she is referring to the incompatibility of uses between AU and RR-1; the uses in AU are considerably more divergent than those in RR-1; and she is suggesting it is the incompatibility of use that the Board does not want to approve.

Commissioner Pritchard stated the parcels that are on the north, east, south, and west are all carved into smaller units; and inquired if they are zoned AU; with Chair Higgs responding according to the map they are all zoned AU except one RR-1 parcel to the north of Valkaria Road. Commissioner Pritchard inquired can they divide AU parcels into smaller than what is currently designated on the map. Chair Higgs requested Mr. Enos advise what size AU has to be. Commissioner Pritchard inquired if that is because of the regulations before 1988; with Mr. Enos responding prior to the mid-1970’s, AU zoning required only one acre. Mr. Enos stated any lot that was divided before 1975 is only required to be one acre; and those are all nonconforming lots of record. Commissioner Pritchard stated they are penalizing someone because they have, under the current guidelines, a conforming AU lot, but are trying to take it to RR-1, which matches the nonconforming AU parcels; and it does not make any sense to hold this property hostage when the surrounding properties have been carved up into smaller units. He stated if it goes to RR-1, he does not see where they are doing anything that is incompatible with the neighborhood; and although the zoning is AU, if they go to RR-1 they are just making the size of the properties compatible with the other properties in the neighborhood. Chair Higgs requested Mr. Enos read all the uses in AU and the different uses in RR-1; stated that is what the Board has found on a number of occasions to be incompatible; and she is not discussing the issue of lot size, but the issue of uses. Commissioner Pritchard stated the uses under RR-1 are more restrictive than under AU; and inquired why they would not grant RR-1 since it is more restrictive. Chair Higgs stated on frequent occasions, the Board has found that due to the inherent uses in AU, it is creating incompatibility.

Commissioner Colon stated the Board is trying to figure out a way to be sure it is consistent with the neighborhood; and suggested tabling the item because otherwise it is going to be denied tonight. Mr. Nagel stated he has lived in the area since 1972. Commissioner Colon stated Mr. Nagel will have an opportunity to work with staff. Mr. Nagel stated it has already been tabled three times. Commissioner Colon reiterated the item is going to be denied tonight; and Mr. Nagel will probably want to meet with County staff to be sure it is compatible and would be more feasible to be approved. She stated the choice is between being denied and waiting.

Commissioner Pritchard stated he does not understand; and inquired if there are nonconforming AU parcels that are approximately one acre surrounding the area, and the applicant has a large AU parcel, which cannot be divided as AU and wants to go to RR-1, and AU is the lesser restrictive zoning that would allow for all types of critters and agricultural use that are not
permitted in RR-1, then what is wrong with letting this go to RR-1. He inquired why would the Board consider the incompatibility of this move; stated if it were going the other way and the Board was allowing chickens to move into a residential neighborhood, he would say no; but in this case, it is not going to let chickens move into the neighborhood by going to RR-1 because it is more restrictive. He inquired why would there be an objection to more restrictive zoning when the lot sizes are compatible with the lot sizes in the neighborhood.

Commissioner Carlson stated it is not about lot size; it is about use; and if AU is beside RR-1 and the AU owner decides to raise chickens or any other use that is allowed in AU, then the applicant is going to be coming back to the Board to say he does not like what they are doing, which puts the Board in a bad position. Commissioner Pritchard stated the Board is already in that position with what it tabled earlier tonight; and he is not sure that cannot be addressed in some other fashion. Commissioner Carlson stated it cannot be addressed because the zoning is already applied to the AU; and the Board cannot go back and do anything about that. Commissioner Pritchard stated he does not understand what is being said about use; if people want to move next to an airport, they should not complain about the planes; and if someone is going to move to this neighborhood on an RR-1 lot, they should not complain about the person on an AU lot who is raising chickens. Commissioner Carlson stated he may sell his RR-1 property; and the new owner would come back and complain about it; so the Board cannot win either way. Commissioner Pritchard stated then he will be in a civil suit. Commissioner Carlson stated it would be the County first.

Motion by Commissioner Colon, to table Item IV.A.9 to the December 2, 2004 Board of County Commissioners meeting.

Commissioner Pritchard stated he does not understand the point of tabling. Commissioner Pritchard seconded the motion. Motion carried and ordered; Commissioners Higgs and Carlson voted nay.

Item IV.A.10. (Z0407304) Fedd Investment Corporation’s request for Small Scale Plan Amendment (04S.9) to change the Future Land Use Map from Residential 1 to Community Commercial; and change from GU to BU-2 on 6.2 acres, and from GU to SR with Binding Development Plan on 29.3 acres located on the south side of Valkaria Road, west of U.S. 1, which was recommended for approval of Community Commercial by the Local Planning Agency and for BU-2 on 6.2 acres with a binding development plan stipulating keeping all outside storage behind the buildings and excluding convenience stores and strip shopping centers and approve SR on 29.3 acres with a binding development plan limiting development to one unit per acre maximum density by the P&Z Board.

Ed Gerhardt gave a slide presentation; and stated the first slide is a summary of the zoning request. He stated the property he is requesting the zoning change for consists of two parcels, a 29-acre parcel on the west side of Old Dixie Highway and east of Valkaria Heights Subdivision for which he is requesting SR zoning and a second piece that is approximately six acres on the east side of Old Dixie Highway and along the railroad tracks for which he is requesting a change to BU-2. He stated the change also required a small scale plan amendment. He stated the reason for the request is to build a subdivision on the 29-acre parcel; lots would be in the half to one-acre range to be compliant with the zoning; and a binding development plan has been submitted, which would limit the density to one unit per acre with significant undeveloped areas. He stated they will construct three office buildings on the six-acre parcel with outside storage in the fenced areas along the railroad tracks and car parking in the front; there would be large undeveloped areas and/or fencing around it to limit visibility to the street; and the P&Z and CRG recommended approval. He displayed a slide and poster showing the current concept plan for the 29-acre piece; stated it includes one unit per acre density overall with nearly half the property left undeveloped; and there are 25, 30, and 60-foot landscape buffers around the entire perimeter of the property to avoid crowding the existing property owners to the west and south. He stated it will also include a privacy fence and a gate along Old Dixie Highway.

Chair Higgs inquired if the applicant is submitting that as a binding plan; with Mr. Gerhardt responding it is the current concept of what they are doing, but he does not have the engineering details yet. Chair Higgs inquired if Mr. Gerhardt is not binding the buffers or any of the things he is describing; with Mr. Gerhardt responding he will bind the buffers, but is not sure of the exact lot configurations or boundaries, and there are wetland areas on the creek through there. Chair Higgs requested Mr. Gerhardt go over the buffers again; with Mr. Gerhardt responding it is on the plan. Chair Higgs noted the plan is a concept plan, and the Board needs something binding; with Mr. Gerhardt advising the buffers are fixed at 25, 30, and 60 feet. Mr. Gerhardt pointed out the buffer areas on the plan. Chair Higgs inquired if they are undisturbed vegetative buffers; with Mr. Gerhardt responding there is no plan to change them, but the exact location of the streets has yet to be detailed. Chair Higgs inquired if the binding development plan would be coming back to the Board for final approval; with Mr. Gerhardt stating he would be willing to include the buffers in that plan; but they are not far enough along to say where the exact boundaries of roads and lots are.

Mr. Gerhardt displayed a slide showing the current zoning in the area; and stated most of the adjoining property to the west is zoned RU-1-9, which allows six to seven units per acre; and he is only requesting one unit per acre. He stated the other adjoining property to the south is zoned GU; he met with the owners; and they have gone on record in a previous meeting supporting his request. He stated there is commercial zoning surrounding the smaller piece; property to the east and south is already zoned BU-1, BU-2, or industrial; so the request for both parcels is compatible with the existing zoning. He displayed a slide showing pictures of the area; stated the residential area surrounding the property is at much higher density than he is
requesting; there is a RU-1-9 subdivision on the adjoining property to the west; there is property zoned for trailers to the northwest; and there is a multifamily development across the street to the north. He stated the next slide shows a bit of the commercial property in the area, including concrete and asphalt plants, two septic tank companies, a stone and pre-cast concrete plant, and a pet resort; and there are several more commercially-zoned parcels to the east that have not been developed yet. Mr. Gerhardt displayed another slide showing the concept plan for the six-acre parcel; and stated it consists of three office buildings, each approximately 200 by 50 feet. He stated they will be subdivided into individual office units; and they also include secure storage areas in the back along the railroad track and should not be visible from the road. He stated much of the area to the south and in front along the street is left undeveloped. He displayed a slide showing the concept of the office building, with parking and offices in the front and outdoor storage in the rear; and stated they think this will be viewed as attractive and an enhancement to the area. He stated the next slide has justification for the request for SR zoning; most of the adjoining property to the west is zoned RU-1-9, which is six or seven units per acre; the subdivision to the north is zoned a much higher density at TR-1; and there is a multifamily building to the north of the six-acre parcel. He stated school overcrowding can be avoided in this area; a nearby property, as he showed earlier, is zoned either industrial or BU-2; must of the property to the east and northeast is zoned BU-1 or BU-2 already; and the outside storage requirements were the motivation for the request of BU-2 zoning. He stated it is compatible with the surrounding area; they will bring nice homes to the area, which will raise the property values; it will be a gated community with a privacy fence and deed restrictions; and there will be large lots and large undeveloped sections. He stated care will be taken to preserve the character of the property; there will be buffers along all of the property lines; and there will be very attractive office buildings on the other side of the road, which will be appealing to the subdivision across the street. He stated they heard what the neighbors did not want in previous meetings and complied; they did not want a convenience store or retail strip mall; and they included in the binding development plan that would not be the case, so the plan seems to be agreeable to the residents and property owners of the area. He stated no one would be more negatively impacted by an eyesore commercial development than they would because they are planning a nice residential development directly across the street. He stated he was going to try to convince the Board that some of the measures they are taking in private security with fencing, gates, and video surveillance cameras would help the situation with too few police; but he is not sure he needs to go there. He stated he was sensitive to the Board’s concern at the last meeting so he did some research and designed into the development some measures that could provide some security to try and convince the Board that they could help reduce crime; that is not a replacement for police officers; but these things have been effective in the past in reducing crime in the area; and if the Board supported security conscious communities like the one he is planning, the few police could go a little further.

Chair Higgs stated the request is for SR; staff points out in the comments that a binding development plan is needed limiting it to one unit per acre; but if the applicant used the Open Space Ordinance with RR-1 zoning, he could achieve the same thing. Mr. Gerhardt stated he probably could have; he may have made a mistake in doing that; but what he did was what was recommended by the Planning and Zoning staff. Chair Higgs inquired if the Board could grant RR-1 zoning; with Assistant County Attorney Eden Bentley responding affirmatively. Mr. Gerhardt stated his motivation behind asking for SR was to give him the flexibility to leave as much open space as possible and move lots around to preserve as much of the character as he could; lots could be as small as a half-acre, leaving the majority of it undeveloped; and he could submit a binding development plan where he would not use the extra space for any additional density, limiting it to one unit per acre. He stated that may accomplish the same thing; but he is not sure. Chair Higgs stated she thinks it probably would.

Commissioner Carlson stated she is concerned about introducing BU-2 to the area; and inquired if there is any reason why it could not be BU-1. She inquired if there are specific groups Mr. Gerhardt is expecting to come into the project; with Mr. Gerhardt responding they do not have anyone lined up to do anything; but since the property backs up against the railroad track and is odd-shaped, they thought they could take advantage of the back area along the tracks for outdoor storage in a fenced secure area, which has to be BU-2. Commissioner Carlson stated when the Board does zoning and introduces BU-2 into areas where there is no BU-2, it has to look quite a bit forward in time as to what can happen to the property and how it will affect the area; and right now the property is GU with RU-1-9 to the west and some BU-1 across the railroad track. Mr. Gerhardt stated the property to the south and west of the proposed parcel is either BU-1, BU-2, or industrial zoning; in the area is heavier commercial zoning; and they thought BU-2 would be compatible with the area. Commissioner Carlson stated she is looking at staff’s comments, which talk to there being no industrial designated or non-retail commercial properties established in the area, with the exception of the railroad corridor; and advised there will have to be a wetland determination. Mr. Gerhardt stated he understands that; and inquired if there is any disagreement that this zoning does currently exist in the area. Commissioner Carlson stated she was curious why the applicant was asking for BU-2 versus BU-1. Mr. Gerhardt stated the only restriction was the ability to store things outside the building. Commissioner Carlson stated she assumes that was based on what Mr. Gerhardt saw developing in the area because normally one would see an RP, Residential/Professional zoning if one wanted a business in there so it would not impact the SR zoning. Mr. Gerhardt advised they own the property across the street and will be very careful to make sure the business property looks good as it will not affect anyone more than it will affect them.

Chair Higgs stated if the Board wishes to approve the SR with a binding development plan with one unit per acre and buffers, which would come back at a subsequent meeting, she would not support that based on her previous comments concerning IV.A.3 and IV.A.5; the Board can discuss that; and then it can talk about the BU-2. Commissioner Scarborough stated Chair Higgs also mentioned the concept of going to RR-1; while her comments will go on the record, there will be a motion that may pass dealing with the residential; and if she has thoughts about how the motion would be stated, he would be interested. Chair Higgs stated her thought would be that the RR-1 is compatible with the one unit per acre, which is in the Comprehensive Plan and is what is to the north. Commissioner Scarborough stated that would be RR-1 with a binding development plan; with Chair Higgs responding yes, to set the buffers. Commissioner Scarborough inquired if that is acceptable to the applicant; with Mr. Gerhardt responding the buffers are acceptable; but he is not sure of the difference between SR zoning with the binding development plan to limit density to one acre and RR-1 with the open space provision. Mr. Gerhardt stated there may be some differences; but if there are no differences, then he is okay with either one of them. Mr. Enos advised the SR zoning is one-half acre minimum; the binding development plan would limit the overall density to one unit to the acre; under RR-1 zoning, there is a one-acre minimum except when the open space provision is used, in which case lot sizes can be reduced to one-half acre, so the densities tend to be approximately the same under those two scenarios. Mr. Gerhardt stated he does not see any difference between the two; he is open to it; but he is not an expert. Commissioner Scarborough stated there are some additional requirements to drop the density down; that would utilize the Open Space Ordinance, which has some components for the design of the project; and inquired if Mr. Gerhardt is not prepared to make that commitment now.

Commissioner Pritchard stated when this initially began, the applicant said it was the Planning and Zoning staff that recommended the SR; based on that recommendation, this is what has been proposed; and there does not seem to be any reason to go to RR-1 since it was acceptable right up until this point; and it does not appear there is going to be any change in the number of units that are going to be in place. He stated he does not know why the Board needs to belabor this and not accept it as the SR zoning with the binding development plan.

Mr. Gerhardt stated if the Board finds problems with it, he would appreciate it letting him know as he does not know enough about what the differences would be. Chair Higgs stated she is looking at the map and the knowledge of the area, which is why she is suggesting RR-1.

Commissioner Scarborough stated he needs to listen to the Commissioner of the District who knows the area; so he will not support SR, but will support RR-1 with the capacities to move to the lesser density using the Open Space Ordinance.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to approve Item IV.A.10 as RR-1 with a binding development plan on 29.3 acres requiring 25-foot buffer on the east property line, a 30-foot buffer on the west, and a 60-foot buffer on the south. Motion carried and ordered; Commissioner Higgs voted nay.

Chair Higgs stated there is no BU-2 in the area; the BU-2 does not drop in until way down Valkaria Road; and as she looks at the staff comments regarding intrusion of BU-2 into neighborhood, she does not see it as being consistent with the Comprehensive Plan or compatible with the area. Commissioner Carlson stated she agrees; and inquired if BU-1 would be acceptable to the applicant.

Mr. Gerhardt stated he would be willing to accept BU-1.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to approve BU-1 on 7.2 acres and adopt Ordinance approving change to Community Commercial. Motion carried and ordered unanimously.

The meeting recessed at 7:35 p.m. and reconvened at 7:52 p.m.

Item IV.A.11. (Z0405501) Tanner and Kanazeh Development, Inc.’s request for change from AU to RU-1-13 on 4.31 acres located on the north side of Trimble Road, west of Wickham Road, which was recommended for denial by the P&Z Board with further recommendation that the Board of County Commissioners direct staff to stop taking residential applications in areas where schools are over-capacity.

Commissioner Colon stated this area has drainage problems; she has been working closely with the community to address it; and she does not want to put a Band-Aid on the problem. She stated they are going to be meeting on November 17 with the parties involved; and she wants to make sure they look at the entire picture. She stated she wants to make sure the Board is fair this evening; and she wants to reassure the residents who will be affected that she is fully aware of the problem and is not planning to just put a Band-Aid on it.

Lawrence Tanner stated the request is for a change from agricultural zoning to EU-2 on 4.3 acres for seven lots; the lots will be greater than half-acre lots; and they will be building new homes on the lots. He stated there is a drainage easement on the west end of the property line that Commissioner Colon is referring to; and there is some discussion about the drainage issue. He stated the County already established a drainage easement there; he is not sure of the size; and he is not sure that his rezoning has any impact on the drainage issue. He stated they were requesting RU-1-13, but amended it; they worked with the neighbors in the area on several occasions and came up with something they liked; and it has received wide approval from the neighbors in the area. He stated the recommendation of the P&Z was against the rezoning due to the impact fee issue for schools, which the Board has been addressing; but the majority of homeowners in the area feel the project would be beneficial to them, their property values, and the area as a whole. He stated he met with Commissioner Colon and staff to look at the issues with the ditch, which is not adjacent to his property.

Holly Cartier stated she and her husband reside on Trimble Road; their property abuts the one in question to the west; and she is a native of the Lake Washington area. She stated after returning from college, they purchased their home; keeping in mind what her County Commissioners had taught her in the 4-H legislation program as a teen, they purchased a home that was already zoned for their needs; and they have two ponies living there. She stated she felt assured the neighborhood would remain rural and horse friendly since several multi-acre properties had horses residing there for as long as she could remember; and seven years ago Aurora Woods was still intact, providing a safe haven to enjoy equestrian activities. Ms. Cartier advised though there are a few horses, one property is already rezoned for low-cost, high-density multifamily dwellings; but that plot accesses Aurora Road, where there are several densely-populated subdivisions, trailer parks, and low-cost housing that have been there for years. She stated if the zoning next door to her property changes to anything more restrictive than RR-1, it will not be long until what is left of the rural feel of the neighborhood is as dead as the dead horses buried on the plot being considered for rezoning; and she also does not wish to smell the corpses of the hundreds of pigs and goats that were tossed into mass graves scattered all over the plot four or five years ago. She stated it took a long time to get the stench out of there; and she had enough of it again after the hurricanes when the water brought the smell back up again. She thanked Code Enforcement for its action in stopping it. She stated there have been some discrepancies as to the actual size of the plot up for rezoning; this came up at the first zoning meeting; and she can clarify the matter. She stated the land was 4.26 acres on the Property Appraiser’s website while the previous three owners had it as well as on the County map; and that is why it came up at the zoning meeting. She stated once Tanner and Kanazeh acquired the property, it was suddenly 4.31 acres and at the same time her property was made smaller by five-hundredths of an acre; they have since corrected the records concerning her property; and submitted paperwork. She stated intentionally or not, the building plan that Mr. Tanner has submitted is most likely 2,178 square-feet larger than the plot he intends to build on, which is the size of her house. She stated as for water, four years they put in another well; three companies refused to come out because of past difficulties drawing water from the ground on Trimble Road; and the fourth agreed to try since they lived west of the canal that intersects Trimble Road. She inquired how many of the houses are going to be drawing up water to keep up a lawn; and stated while the water is getting scarce from the ground, at times it rolls across the land. She stated the neighborhood was established long before the requirement to build a house and septic bed 18 inches or more above the road; in the seven years, she has been here, the zoning on the plots west and north have been changed with many new homes being built; and the water now flows from both directions. She advised she has nearly been flooded twice; the water rinses her land into the canal; and if the rezoning passes, she is probably going to be forced to sell before she does flood and has to deal with that insurance matter as well. She stated in the rest of the neighborhood, swamps have been built over; and acres have been clear-cut and built high for homes. She stated with the ease of rezoning and lack of impact fees, the developers flocked to Brevard County since the early 1980’s; and they ruined the original plan for the Greater Lake Washington area. She stated portables began springing up at the schools in the 1980’s; now that she has a one-year old, other parents keep telling her the schools she once attended are no place to send her children; and some people in the already established neighborhood are trying to raise children there and would like the option of sending them to decent public schools. She stated as to the new impact fees, they will serve well to curtail some development and generate funds for schools and new towns; but as for established areas, impact fees would be a poor excuse to allow additional building, especially since the area schools are already overcrowded from the poor planning to educate the children from Viera. Ms. Cartier stated as for the wildlife, there is now a fox running around; she has not seen one in the area for over ten years; but suddenly there is one in her backyard running around on the pasture. She stated every time the zoning is change to a more dense number of homes than originally intended in an established community, it is cramming countless children into classrooms, adding more cars to the roads, flooding more homes, and destroying what is left of a once great place to live. She requested the Board follow the P&Z Board recommendation and keep the property AU.

Susan Arnold stated the majority of the neighbors signed a petition that was presented to the P&Z Board on May 10, 2004; their previous concerns were compatibility with the surrounding area, density of the proposed zoning, drainage in a floodprone area, and traffic increases; but due to the moving of the item on the P&Z Board agenda, the neighbors were not in attendance when the item came before that body on July 12, 2004. She stated therefore there were some items that were not made known to the neighbors; since the original May 10, 2004 meeting, the neighbors had the opportunity to meet with Mr. and Mrs. Tanner and view the plan for development of the acreage; Mr. Tanner offered to change his request from RU-1-13 to SR; and even though RU-1-13 zoning is similar to some of the surrounding zoning, the existing areas are not built out to the capacity of that zoning. She advised the surrounding homes are built on half-acre to four-acre tracts; therefore, any zoning allowing smaller than half-acre lots would not be compatible with the surrounding area. She stated in their excitement of dealing with such a cooperative developer, their acceptance of change in zoning to SR, and a totally acceptable development plan, neither Mr. Tanner nor the neighborhood realized until their engineer pointed it out that the requirement for SR is 100 feet width per lot. She stated their insistence on the zoning is due to the surrounding acreage that is in an estate at this time; it is also currently zoned AU; and if the Board sets a precedent by not insisting on half-acre lots, the neighborhood can be in the same position with compatibility, density, and drainage in the very near future. She stated since the proposed lots in the Miller Crossing development are 90 feet wide, 10 feet short of the requirement, but 302.25 feet long, more than double the required length, she called Mr. Enos to ask about a variance; and Mr. Enos suggested an EU-2 zoning with a binding development plan of half-acre lots, which was satisfactory to the neighborhood and the developer. She noted she speaks not only for herself, but for other citizens in the area when she voices concerns about further development in the area; and they understand a developer’s right to develop. She stated the neighborhood can live with an EU-2 zoning with half-acre buildable lots, which addresses the compatibility and density issues with the long-established and the new development in the surrounding areas; since the property was previously occupied, the development will not be destroying habitat or threatened endangered species; the County has reviewed the drainage and flood concerns; and Mr. Tanner has agreed to work with them on those issues. She stated as Commissioner Colon advised there is a further meeting on the drainage and the easement issues scheduled for November 17, 2004; and in view of Mr. Tanner’s willingness to work with the neighborhood, they believe he will be willing to work with whatever the County deems necessary to alleviate the concerns of the neighbors and County agencies. She stated the traffic increase and school overcrowding remain issues with any further development in the County; there are neighbors with concerns about increased traffic; however, most of the traffic problems come from people outside the area. Ms. Arnold stated the neighborhood was severely impacted when Wickham Road was closed for the Wickham Road Sewer Project, and Trimble Road, Lytton Road, Baker Road, Pinewood Road, and Easy Street became the shortcuts of choice. She stated church traffic on Sunday morning is also an issue; but all but one of the churches was in existence before most of the homes were built, although sometimes the neighbors forget that. She stated it is their understanding that the school issue was the sole factor in the P&Z recommendation for denial; the developer has agreed to pay whatever the school impact fees will be; and they understand that paying money now does not alleviate the overcrowding that is being experienced in two of the three schools involved in the project; however, the reduced density to seven homes will reduce the impact on the schools. She stated the neighborhood has been known to fight for compatible minimized growth to insure the rural lifestyles; they are seeing how developers all around them are trying to annex into the City where tax revenue seems to take precedence over other issues; and in April and July, they battled 80 units on 4.8 acres, less than a fourth of a mile from this proposal. She stated they feel that working with a cooperative developer who was willing to give up a Sunday afternoon to meet with them to answer questions, and was willing to change the request to EU-2 and go with the plan they were given on June 27 will serve as an enhancement. She thanked the Board for taking their comments under advisement.

Commissioner Carlson stated the previous speaker talked about mass graves of dead animals and things like that; the binding development plan talks about private wells and septic tanks; and inquired what Ms. Arnold knows about that and has anyone researched it. Ms. Arnold responded she has no knowledge for sure; but there have been horse farms there for a long time so there could be animals buried. She stated she does not know anything about mass graves, pigs, goats, or any of that kind of thing.

Clayton Turck stated he lives in Creekwood Development, which is at the northwest corner of Mr. Tanner’s proposed property; and they share the ditch that is in question with Mr. Tanner, another owner of property that is directly behind Mr. Tanner, and Ms. Cartier. He stated they have a big concern over the ditch; Commissioner Colon met with them as did Keith Alwards from Roads and Bridges; and they walked the ditch. He stated there is a dogleg in the ditch; there is a question about there being an obstruction; and as far as he knows, Commissioner Colon is still active on that issue and it will be hopefully straightened out. He stated that does not affect Mr. Tanner’s parcel even though the ditch is on his west side; and the dogleg that was the problem is farther down the ditch. He stated he was originally against this request when he went to the P&Z meeting; he objected to the RU-1-13 because of the density; they have half-acre lots in Creekwood; and they wanted something more compatible with that. He stated the P&Z Board tabled the request and recommended Mr. Tanner meet with the residents; that meeting was set up; and everyone from Pinewood, Creekwood, and the general area received a notice of the meeting. He stated Mr. Tanner bent over backward to meet their requirements; he went from fifteen to seven houses; they discussed the drainage and Mr. Tanner has swales between the lots to absorb the general runoff of water of each home; and he was there when they walked the ditch. Mr. Turck stated Mr. Tanner has done everything one could ask a person to do; he has never met a man so agreeable to reduce his profits because if he built fifteen houses rather than seven, he would have more money in his pocket; and he has done everything to satisfy the people. He recommended the Board consider Mr. Tanner’s request for rezoning so that he can get on with this building; and commented on the number of times the item has been tabled. He stated Mr. Tanner is a very agreeable developer, and his rezoning should be considered.

Roy Raithel stated he lives within the 400-foot radius of the proposed property; his property Is also zoned AU; and he likes the farm animals that Commissioner Pritchard mentioned earlier. He stated the parcel being discussed is not a true rectangle as the east property line is 274 feet, the west is 302 feet, and the running distance is around 650 feet. He stated as far as the developer not knowing about the easement, he showed it to him; he got the land records from Titusville; and there is a 45-foot easement on the western lot line, which he talked about with Mr. Tanner. He stated the neighborhood needs an additional five feet of public drainage; that is more in line with a portion of Creekwood, which is 25 feet plus an additional five feet of public easement for water. He stated Commissioner Colon has a whole packet of information; before 1999 they had a real problem with the ditch; and it had not been dug, except for that year, in 35 years. He stated there is a real problem out there every time the streets flood; people ask why he is getting involved in this and making it a personal issue; but there are some single folks in the neighborhood who are aged and they do not want water in their homes. He stated there are some greater issues; and requested the Board table the item to see if there is a way to get five more feet of public drainage across Mr. Tanner’s property. He stated once they have the meeting on November 17, they will have a truer picture of what is going on in the neighborhood; and commented on the Eau Gallie Master Plan, which did not address their area. He stated if they had a 12-inch rainfall, there would be water in their homes; neighbors came to request he help to clean out the ditch; and some of the problem is lack of maintenance on the County’s part and some is the need to look at that for an increased area across the property. He stated he proposed that to Mr. Tanner at the meeting; he asked for one more foot off each lot; and that is the reason why tonight Mr. Tanner changed his proposal. He stated he asked Mr. Tanner before to cut it to 88 instead of 90 feet, leave it in RU, take the half-acre parcel and make it compatible with the houses; and noted every lot on Trimble Road is at least 100 feet wide.

Mr. Tanner stated the ditch is no more than 15 feet wide at any section; from what he was shown, there was a 25-foot ditch area with a 20-foot clean-out for the County vehicles to get through; but even if the ditch was dug ten feet wider, it would still be within the parameters of what was established by the County for this ditch; and the dogleg in the ditch is not adjacent to his property. He stated there was a storm in the mid-1990’s; one of the culverts got stopped up during that storm and backflooded the entire neighborhood; but during the past hurricanes, the ditch never got to capacity as far as he knows from eyewitness accounts. He stated they are going to be build very nice houses in the neighborhood, which will increase property values for everyone around them.

Commissioner Colon stated they went out to this area and met with the neighbors; she has great concerns over the drainage problems; but the Board has to make sure to keep that issue separate because she does not want to just keep putting a Band-Aid on the issue. She stated there is a meeting scheduled for November 17 to address the entire area. She stated she likes that they went down to EU-2 with a binding development plan calling for half-acre lots; she appreciates that; and she does not like when developers are not sensitive to the neighbors and the compatibility. She stated she does not have a problem approving this item; it has been tabled many times because of the hurricanes; and people complaining this evening that they have been here for hours should remember that the people for this item have been present a number of times, five to six hours each time, after which the item was tabled. She stated she would like everyone in the neighborhood to help when they get together on November 17, 2004; this is a problem that is going to affect everyone including Mr. Tanner because he will want to make sure there is no drainage problem for his neighbors; and there has to be that compassion for everybody. She reiterated she is comfortable approving the item based on the fact that there have been a lot of meetings; and staff has gone out to the area, but there is a lot more that needs to be done.

Motion by Commissioner Colon, seconded by Commissioner Carlson, to approve Item IV.A.11 as EU-2 with a binding development plan stipulating no less than one-half acre lots.

Chair Higgs stated she would like to incorporate comments she made under IV.A.3 and IV.A.5.

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

Commissioner Colon stated she hopes to see everyone who is present tonight at the meeting on November 17, 2004. She requested the Board take the District 5 items next, Items IV.B.5, IV.B.6, and IV.B.7.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to move Items IV.B.5, IV.B.6, and IV.B.7 forward on the agenda. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RECOMMENDATIONS OF THE PLANNING AND ZONING BOARD
OF OCTOBER 11, 2004

Chair Higgs called for the public hearing to consider the recommendations of the Planning and Zoning Board made at its October 11, 2004 meeting, as follows:

Item IV.B.5. (Z0410501) Elizabeth Anne DuBois’ request for change from RU-1-13 to RU-2-15 on 0.14 acre located on the north side of Atlantic Avenue, west of Highway A1A, which was recommended for denial by the P&Z Board.

James Bloom, representing the applicant, stated Ms. DuBois purchased the property in January 2004; it is just off A1A near the Holiday Inn; and she purchased it as a personal residence with a suite for her infirmed mother. He stated the property is a little over 1,000 square feet with two defined living areas; the larger one is 600-plus square feet with a full bedroom, full bath, living room, dining room, and kitchen; and the other suite in which she planned to install her mother was more like a mother-in-law suite with a sleeping area, living area, and serving style kitchen with no permanent cooking facility. He stated the staff report says the property is converted; but it is in the same state and structure as it was when Ms. DuBois purchased it. He stated Ms. DuBois’ mother became ill just as she closed on the property and was put in a 24-hour assisted home; consequently Ms. DuBois did not move but remained in her townhouse in Satellite Beach; and she rented the property to a preschool teacher who took the smaller area, intending to have her son take the larger area. He stated the son decided to go away to college; a couple of months later, a young couple needed a place to live; and they moved into the larger side of the property. He stated the property is in keeping with the neighborhood; and they do not understand the recommendation for denial by the P&Z Board. He stated across the street and the four dwelling units to the east are all duplexes and one may be a triplex; to the west are two properties that are upstairs/downstairs duplexes with outside entrances and no inside access with full living facilities; and submitted pictures of the area. He stated cosmetically the property that is subject of the request is probably one of the best properties in the area; it is a little dilapidated from hurricane damage; but they intend to take care of that very quickly. He stated the bottom picture shows a building at 114 that is definitely a duplex; and there is another red entrance door behind the bush. He stated the second sheet shows 124 Atlantic Avenue, which is an upstairs/downstairs duplex with full facilities in both places; he has been inside this building; and it has only access from the outside. He stated the second page at the bottom shows a duplex on a 50-foot wide lot; and there is a third unit, which is two stories in the background. He stated on the third page, the property is one door down from the subject property on the opposite side of the street; it is definitely a duplex with two entrances; the picture was taken at 8:00 a.m.; and there are six vehicles parked there. He stated the last picture shows the property directly across the street from the subject property; there are three garages; and it is definitely a duplex. He stated Ms. DuBois’ usage is in character with the immediate neighborhood in appearance and function; it improves the appearance of the neighborhood; and granting the request will have no negative impact on environment or traffic. He requested approval of the rezoning request; stated they have been offered no options other than to request a zoning change; and if they cannot move forward with this request, they would like to have more time to discuss the issues with the neighborhood and staff.

Commissioner Colon inquired if the rezoning request is the result of Code Enforcement violations; with Mr. Enos responding he is guessing that is true, but does not know for sure. Mr. Bloom verified that is the result of Code Enforcement action.

Joseph Lipnicky stated he is the neighbor who was not mentioned; and he lives at 126 Atlantic Avenue, which is diagonally across the street. He stated Mr. Bloom mentioned a duplex across the street from his house, but it is not a duplex; it is a single-family house with three garages that has been there for years; the family lives in Kansas now; and he watches the house for them. He stated the duplexes Mr. Bloom is talking about are grandfathered in from the past; the main concern is that if it is changed, there are a few adjacent lots; and it is like putting the cart before the horse. He stated they have two rentals out of the property now; if it was a mother-in-law suite, he could understand; but a lot of the neighbors are concerned that if it changes, the lot next door could be a quadruplex. He stated this is the first time he has been before the Board; but there are no two-story homes in the close area; the original duplexes at 108 Atlantic were grandfathered in; and he does not believe 124 Atlantic is a duplex. He stated a lot of the homes going west are single-family residential; 118 Atlantic is a duplex managed by Underhill; and that seems to be a problem with the neighborhood because a lot of times the duplexes are rented and there are multiple cars there. He stated sometimes there are four cars parked at the property being requested to be rezoned; they park on the grass because there is no garage; and it is a one bedroom, one bath home. He stated the property at 121 Atlantic is single-family; 114 is a triplex that has been there for years, but used to be a hotel; and their main concern is the property in question looks like a duplex now. He expressed concern about the RU-2-15 zoning; and stated it is not a mother-in-law suite at this time.

Mr. Bloom stated the only dwelling that he has been inside of was the one that was the two-story duplex; and it is less than 200 feet from the subject property. He stated the other one with the red doors, the one with the blue doors, and the one that was a hotel are definitely multifamily dwellings and are within 200 feet of the subject property.

Motion by Commissioner Colon, seconded by Commissioner Scarborough, to deny Item IV.B.5 as recommended.

Chair Higgs stated she will support the motion because this seems to be spot zoning in the middle of RU-1-7.

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

Item IV.B.6. (Z0410502) Casablanca Inn, L.C.’s request for change from TU-1-(20) to RU-2-15 on 1.49 acres located on the east side of Highway A1A, east of Pine Tree Drive, which was recommended for approval by the P&Z Board.

Attorney Philip Nohrr, representing the applicant, stated the request is to change an existing zoning from TU-1 to RU-2-15 on property located on the ocean, approximately half-way between the Melbourne and Eau Gallie Causeways; the property in question currently has on it 34 motel units plus one manager unit; it was built in the early 1960’s; and it has sustained significant damage in the recent hurricanes. He stated the property generates 326 trips as set forth in the staff report; and what they propose to do in rezoning to RU-2-15 is develop no more than 22 units that would generate 148 trips, which is significantly less; and they would also return the zoning to RU-2-15, which was the zoning in the mid-1970’s before it was rezoned to TU-1. He stated as far as being consistent with the surrounding zonings, to the north there is RU-2-15; to the south is RU-2-30, which they realize is an old zoning; and looking up and down the properties between the causeways, most of them are RU-2-15 or have small mom and pop hotels on them that were built a significant number of years ago. He stated he was in front of the Board in April or May of this year with a similar property located less than a mile to the south; it was oceanfront property zoned TU-1 that they wished to rezone to RU-2-15; at that time they were struggling with the educational facility impact fee, so he submitted a binding development plan that talked about the $2,800 contribution; and the Board approved it. He stated as part of that he submitted some evidence to the Board, which he believes is as valid today as it was then; they took a survey of the condos that were around the property; there were approximately 434 condominium units; and there were a total of six children, four of them school age. He stated he realizes the educational impact fee is not the issue tonight; but it was the same thought process then that they went through and they were fortunate enough to get approval. He stated they are back with a similar type of request; rezoning it to RU-2-15 is consistent with what is there; it would be an upgrade; this property is 40 years old and has structures on it; it has been damaged; and requested a favorable vote from the Board to approve.

Commissioner Colon inquired about the height; with Mr. Nohrr responding it would not exceed the 35 feet that is authorized; and they are not asking for a variance of any type.

Chair Higgs stated her concern tonight has been in regard to deputies; and inquired if Mr. Nohrr is going to ban all felons and misdemeanants from the property. Mr. Nohrr stated he cannot do anything about felons; but he is told this would be a decrease in crime, although he cannot in good faith make that argument to the Board. He stated they will do their best to not let criminals buy the expensive units.

Motion by Commissioner Colon, seconded by Commissioner Pritchard, to approve Item IV.B.6 as recommended by the P&Z Board.

Chair Higgs stated this is a decrease in the number of units; so she is not going to vote no.

Commissioner Scarborough stated if there are people who are transient moving in and out, there tends to be greater propensity to have a greater number of individuals, and as the
number increases, and if the population had the same number of criminals, both transient and permanent, by having more people move in, there is the possibility that the overall number would increase, so there could be an argument that it would reduce.

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

Item IV.B.7. (Z0410503) Irene Hoeppner, Trustee’s request for change from RU-1-13 to RU-2-10 on 0.35 acre located on the south side of Coral Way East, west of Highway A1A, which was recommended for approval by the P&Z Board.

Gloria Lohner advised she is representing the applicant.

Motion by Commissioner Colon, seconded by Commissioner Scarborough, to approve Item IV.B.7 as recommended.

Chair Higgs stated she is going to vote no based on her previous statements under Items IV.A.3 and IV.A.5.

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

*Commissioner Colon’s absence was noted at this time.

PUBLIC HEARING, RE: TABLED ITEMS OF PLANNING AND ZONING BOARD MEETINGS
OF SEPTEMBER 8, 2003, MAY 10, 2004, JULY 12, 2004, AUGUST 9, 2004, AND NORTH
MERRITT ISLAND DEPENDENT SPECIAL DISTRICT BOARD MEETING OF
JULY 15, 2004 (CONTINUED)

Item IV.A.12. (NMI40703) Thanh D. Ngo and Lien K. Pham’s request for change from AU and RU-2-10(4) to SR with Binding Development Plan limiting development to four homesites, with each lot being a minimum of one acre on 4.951 acres located on the southwest corner of Jones Trail and N. Tropical Trail, which was recommended for denial by the North Merritt Island Dependent Special Board.

Thanh Ngo submitted paperwork; and stated he and his wife own the property, which is 4.95 acres north of the Barge Canal and west of SR 3; it is currently zoned AU and RU-2; and they are requesting a change to SR with a binding development plan limiting development to four homesites with each lot being a minimum of one acre and each home being a minimum of 2,400 square feet. He stated as the Board can see from the sketch, it will be at the southwest corner of North Tropical Trail and Jones Trail; and both roads are paved County roads, so there will be no construction required by the County. Mr. Ngo stated across from his property there is a new development going up on quarter-acre homesites with 13 lots; his property is located right on the Barge Canal; people are using it as a dump; and children are going back there fishing and lighting bonfires. He stated it would be a big improvement to the neighborhood to build these homes; and requested the Board approve the request.

Commissioner Pritchard stated he is familiar with this property; he lives not too far north of it; and he comes down frequently to see what is going on in this area. He stated any time the Board can encourage development on one acre homesites, he is in favor of it. He stated he understands it is SR zoning with a binding development plan for four sites of at least one acre each and Mr. Ngo is also introducing 2,400 square-foot minimum for the size of the house. Mr. Ngo stated that is correct.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve Item IV.A.12 with a binding development plan limiting to four homesites and minimum home size of 2,400 square feet.

Chair Higgs stated she is going to vote no based on her previous statements under Items IV.A.3 and IV.A.5.

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

Item IV.A.14. (Z0408101) Robi Roberts, Trustee’s request for change from AU to RU-1-11 on 23.31 acres located on the south side of Latimer Street, west of U.S. 1, which was recommended for denial by the P&Z Board, and the applicant amended the rezoning request to EU-2.

Attorney John Evans, representing the applicant, Roger Smith, submitted paperwork; and stated they are requesting 24 acres be rezoned to an EU-2 zoning classification. He presented a map showing the property; and stated to the north is a large mobile home park; to the east and the northeast are more mobile homes; and due east are business properties along US 1. He stated to the south is AU zoning; to the southwest is a two and one-half acre flag lot subdivision; due west is AU, which is vacant property; and the northwest is the Walkabout Golf Club. He stated the blue line on the map designates the FEC railroad spur; and it is his understanding that will be converted to a Rails to Trails path in the future. He stated when they came before the P&Z Board, half of the audience was full of people in opposition to the project; they listened to what those people said; and they talked about the compatibility of the size of homes, access, and the fact that his client’s lot sizes were too small. He stated the people wanted assurances that this would be a nice project and not a low-end project; based on that he conferred with Ron Burgamy, who is a neighborhood spokesperson, and came up with a development plan that would meet the needs of the neighbors; and that is included in the packet. Mr. Evans stated he will read the plan into the record because he assured the neighbors he would do so; and the project will be bound by the development plan. He stated the project shall not exceed two units per acre; they propose that all lots abutting the Florida East Coast Railroad right-of-way shall have a 25-foot buffer that will be left in its natural state to create a visual barrier between the two and one-half acre homes to the west and the walking trail from the subdivision; and they agree that the development will have no vehicular access to Folsom Road but golf cart or pedestrian paths will be allowed so the residents from the subdivision can use the Walkabout Golf Course. He stated the subdivision will have deed restrictions as well as an architectural control committee so the architectural style of the subdivision will be higher end; they have agreed to a minimum lot width of 100 feet; and it is his understanding that the proposal has met the objections of a vast number of the neighbors in the area. He stated the fact that the audience is not full tonight indicates that. He stated if the Board checks the Zoning Code, they meet all of the requirements of Administrative Codes 3, 4, and 5. He stated Administrative Code 3 says that it shall be compatible with the neighborhood; and the rezoning, clearly with the mobile homes and businesses, is a very good transition from the US 1 uses to the lower density uses to the west on the far side of the FEC railroad spur. He stated Administrative Code 4 says the neighborhood should not be adversely affected; the subdivision will be one-third to half-acre lots; and this will be an upgrade from the existing mobile homes in the area. He stated Administrative Code 5 says it shall not have a negative impact on transportation; and US 1, in this particular area, operates at a level of service A. He stated they have gone to the neighbors; they heard what they wanted to have in this particular area; they introduced a binding development plan that will meet their requirements; and they otherwise meet the Code requirements for this particular rezoning. He requested the Board’s support.

Commissioner Scarborough stated Mr. Evans brought the letter to his office on October 29, 2004, which made the changes; they sent it to a lot of people; but unfortunately, with the time constraints, he is not comfortable with all the concerns. He stated this is moving in the right direction; he thinks it may be there, but does not know at this moment whether it is or not; and he is going to move to table this evening. He stated it has not had a lot of lead time; and commented on another item being tabled even though the whole community has brought off on it.

Mr. Evans stated he would love to have it tabled as opposed to a denial; but Mr. Burgamy will advise that he has taken this throughout the neighborhood and shown it to the neighbors. Commissioner Scarborough stated that may be true, but Mr. Burgamy is not elected, and he is so he has to respond directly. Mr. Evans stated he understands.

Chair Higgs advised cards were submitted; with Commissioner Scarborough requesting the speakers be heard.

Ron Burgamy requested if the Board chooses to table the item with the idea of meeting with the community that he be informed. Commissioner Scarborough stated that is the whole purpose; there are lot of subtleties with these things; he can never see better than through the eyes of the people who live around the property; and he has not had an opportunity to talk to them. Mr. Burgamy stated they have talked to Mr. Evans and Mr. Smith extensively and they have been very helpful; however, he understands what Commissioner Scarborough is saying on this issue; and he just wants to be sure they are included. Commissioner Scarborough stated his problem is this came to the Board with a very strong recommendation for denial from the P&Z Board; he got something from Mr. Evans on Friday; it went out but he does not know the play with everybody; and he will be working with Mr. Burgamy.

Todd Peetz, Miller Legg and Associates, stated he is here in support of his client who will potentially be purchasing the property based on the zoning. Commissioner Scarborough requested Mr. Peetz be included in the discussion; with Mr. Peetz responding he will be there.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to table Item IV.A.14 to the December 2, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item IV.A.15. (Z0408202) Kyong Sum and Micah Kim’s request for change from BU-2 to RU-2-15 on .025 acre located on the east side of South Banana River Drive, approximately 200 feet north of Worley Avenue, which was recommended for approval by the P&Z Board with a binding development plan that also amends an existing BDP (Z-10696) for the adjacent Marina Village project that will limit the development to an over-55 community.

Rochelle Lawandales, Lawandales Planning Associates, representing the applicants, stated the parcel before the Board is .25 acre that was formerly a grocery store; and she thinks the Board and staff are familiar with it from years of problems. She stated the request is to amend the zoning from BU-2 to RU-2-15 so the piece can become part of the existing Marina Village project, which is currently surrounding it and was approved by the County. She stated this would result in a reduction in traffic; it is consistent and compatible; it is a high value product; and they agreed to provide a binding development plan to amend the existing Binding Development Plan to incorporate this piece within the 55 and older category. She advised she has a draft of the binding development plan; however, if the Board would prefer to have the money, her client will gladly pay the impact fee instead. She stated same people that were here in support of the earlier project are here for this project; but they are willing to waive their right to speak if it is not necessary for the Board.

Chair Higgs stated Mr. Alvarez and Mr. Diriso are present and may speak if they desire. Both declined the opportunity to speak. Commissioner Scarborough inquired if they are in favor of the item; with Ms. Lawandales responding they are.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to approve Item IV.A.15 as recommended by the P&Z Board.

Chair Higgs advised she opposes based on her previous comments on Items IV.A.3 and IV.A.5.

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

Item IV.A.16. (Z0408203) First Baptist Church of Merritt Island, Florida’s request for Small Scale Plan Amendment (04S.12) to change the Future Land Use Map from Neighborhood Commercial to Community Commercial; and change from RU-1-9 to BU-1 with a CUP for a Church and Related Facilities to IN-Heavy with removal of the existing CUP on 2.7 acres located on the south side of Magnolia Avenue and west of Grove Street, also having frontage on the north side of South Tropical Trail, which was recommended for approval of Community Commercial by the Local Planning Agency and for IN-H by the P&Z Board.

Chris Harmon, Head of the Merritt Island Christian School, representing the First Baptist Church of Merritt Island, advised the school is in its 27th year of operation; a year ago they were before the Board about lighting for a field that they use for athletics, recess, and special events; and at the time the zoning did not permit lighting. He stated the Board asked staff to go back; and through this process a new zone was created, the institutional zone. He stated they met with the Merritt Island Redevelopment Agency (MIRA) and the Land Use CRG to request rezoning for the field so they can put lighting for their athletic events and other events the school has.

Chair Higgs inquired if they are requesting changes in zoning and land use; with Mr. Harmon responding yes.

Commissioner Pritchard inquired if other cards were submitted; with Chair Higgs responding yes. Commissioner Pritchard inquired if they are all in favor; with Chair Higgs responding she does not think they are.

Commissioner Carlson inquired if staff talked to the applicant about a zoning of light versus heavy so they would not have to have the amendment but would still be able to do what they want. Mr. Harmon responded yes; it was discussed at the Planning and Zoning meeting; and they were not able to do the light because there is a property to the east that is too close.

Zoning Official Rick Enos stated the difference between light and heavy has nothing to do with the property next door; there is a provision in the classification that requires a 100-foot setback from single-family residential uses; and that applies whether it is light or heavy, so that is really not an issue. He stated the difference between light and heavy is the heavy requires the Comprehensive Plan amendment to Community Commercial and there is no restriction on the traffic generation; whereas, with the light, there is a restriction, although since the Church as Neighborhood Commercial, it is not a particular tough restriction; and he believes they could operate adequately under the institutional light designation.

Mr. Harmon stated when they came before the Planning and Zoning Board, they brought that up and said they would be willing to go with light; but they were told no, they would not be able to go to that and would have to have heavy; but if institutional-light was sufficient to meet their purpose, they are fine with it.

John Jensen stated he is in agreement with Mr. Harmon.

Alison Moses, representing Roxann Geroux who is a trustee for 13 properties on Magnolia Avenue, stated her client’s objection is based primarily on the potential depreciation of property values if the applicant’s request is granted; and it is their understanding that MIRA was given the impression that all property owners were contacted and consented to this change in zoning, but that is not the case. She stated it may have been a matter of miscommunication; but her client has not been contacted. She stated she was present at the P&Z meeting and neither she nor her client have since been contacted; her client made several phone calls to explore the potential negative or positive effects of the change; but no answers were provided. She stated Ms. Geroux talked to some individuals on the MIRA Board; and their response was that they approve only because all property owners were in favor of it. She stated her client is concerned that; this could trigger a series of negative impacts in the area that have not been considered; typically this type of use will increase noise, glare, and traffic in the area; and none of those concerns have been addressed. She stated she was told that possibly at a later point, they would be addressed and alleviated; but that has not occurred. She stated there is a possibility for the field to be used for a multitude of events, not just games on Friday nights, and it could even be rented out to other institutions for various uses, such as the symphonies that were mentioned at the P&Z Board meeting. She stated garbage and waste could increase in the area because of the more frequent use; and there would be nighttime use, which does not exist at this time. She stated individuals may be inclined to use her client’s parking lot if overcrowding occurs; and there may be the need for additional security depending on the types of uses that are going to occur there, which could become costly to adjacent property owners. She stated there are numerous unanswered questions and concerns that still exist; and requested the decision be postponed until those matters have been addressed. She stated if a study was done that said this would increase property values, her client would be in favor of the zoning change.

Mr. Harmon stated the property that they want to add lights to has been used for years without any complaints from the neighborhood; First Baptist Church of Merritt Island, which is a 3,000-seat auditorium, is at Magnolia Avenue and SR 520; and it has plenty of parking. He stated the only time they would need lighting would be at night when there is no business in the strip mall that Ms. Moses is referring to; they have contacted the individuals in the strip mall; and the last time he was here he presented copies of their letters of support. He stated when it comes to trash, traffic, or glare, it is a field surrounded on one side by the church, on another side by a strip shopping center, and on the east side by the parking lot; and on south side by the FP&L site; and there is an easement between that property and the property behind it, which was a former mobile home park; so there really is no impact to anyone else in the area. Mr. Harmon stated they have used the field for years with no incident or complaint.

Chair Higgs inquired if they have used it with lights; with Mr. Harmon responding yes, from time to time. Mr. Harmon advised they just did a community fall festival at Halloween; they rented lights to do that; and they had several thousand people from the community. He stated they received no complaints; and the facility was cleaned the next day.

Commissioner Scarborough inquired if Ms. Moses’ client’s property is the commercial on Magnolia Avenue; with Ms. Moses responding yes. Commissioner Scarborough inquired how many people would be in the commercial area in the evening; with Ms. Moses responding the concern is that there would be debris or loitering. Ms. Moses stated normally at night, nothing is going on there. Commissioner Scarborough stated he would think incompatibility would be with a residential property; but Ms. Moses’ client’s property is commercial.

Commissioner Pritchard stated he is familiar with the property and has spoken with the applicant several times about it; and if it were a residential issue, he would have more concern but it is a commercial issue. He stated he knows how the Church operates and its high level of responsibility in being a good neighbor.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve Item IV.A.16 as IN-Light and deny the Community Commercial portion of the request. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RECOMMENDATIONS OF THE PLANNING AND ZONING BOARD
OF OCTOBER 11, 2004 (CONTINUED)

Item IV.B.2. (Z0410302) Barefoot Bay Water and Sewer District’s request for change from GU, AU, and TRC-1 to GML(H) on 373.79 total acres and a CUP for a Water and Sewer Treatment Facility on 12.1 acres, located on the north side of Dottie Drive and west of Barefoot Bay Subdivision, which was recommended for approval by the P&Z Board.

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

Item IV.B.4. (Z0410401) Board of County Commissioners of Brevard County, Florida’s request for change from GU to GML-H with a CUP for a Water and Sewage Treatment Facility on 104.5± acres and a change from GU to GML-H on 110.5± acres located on both sides of the western terminus of Wickham Road, which was recommended for approval by the P&Z Board with a binding development plan precluding development on the 110.5-acre parcel.

Utility Services Director Richard Martens stated there were comments from the Planning and Zoning Board concerning a binding site plan; but when they acquired the property in 2000, all the property was deed restricted, so they cannot build a sewer plant, landfill, or hazardous waste incinerator there.

Commissioner Scarborough stated the Board would be having the Chair sign for both parties; and inquired how would the County bind the County. Commissioner Carlson stated she had a question about that.

Chair Higgs stated the motion would be for GML-H without a binding site plan.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to approve Item IV.B.4 with no binding site plan. Motion carried and ordered unanimously.

Item IV.B.8. (Z0410101) Michael E. (Jr.) and Taneal Coffell’s request for change from AU to RR-1 on 2.2 acres, located on the south side of Burkholm Road, west of Dixie Way, which was recommended for approval by the P&Z Board with a binding development plan limiting development to one single-family home.

Mike Coffell stated he wants to rezone 2.2 acres from AU to RR-1 with a binding development plan limiting development to one single-family home on the 2.2 acres.

Commissioner Scarborough stated Mr. Coffell met with him; and he explained that he has a problem with the request. He stated looking at the map, the whole area is surrounded with AU; and he has found if someone drives by, they would not know the difference between whether there is 2.2 or 2.5 acres; but everybody would see that there is a different zoning. He stated once they break the mold, it is broken; and he assumes Mr. Coffell has worked with and talked to his neighbors; but there are a number of persons who have expressed concern over this. He noted he has heard concern on other occasions over the movement of AU to RR-1; Commissioner Higgs warned of it some years ago; and people are becoming cognizant of it.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to deny Item VI.B.8.

Commissioner Pritchard stated he has letters of support for the change from AU to RR-1 for the purpose of a single-family home also. Commissioner Carlson stated most are objections. Commissioner Pritchard stated this will remain 2.2 acres that can never be built on; and the only market value it would have would be to be sold to the adjacent property owners. Chair Higgs inquired if Mr. Coffell could build a house on the property; with Mr. Enos responding not without having 2.5 acres under AU. Commissioner Pritchard reiterated there is nothing Mr. Coffell can do with this property other than sell it to the adjacent property owners or buy from the adjacent property owners. Mr. Enos stated it is part of a larger 4.7-acre parcel; and Mr. Coffell could acquire another .3 of an acre or sell to adjacent owners. Commissioner Pritchard stated if he carves off 2.2 acres, whoever owns the other 2.5 acres knows he needs that under AU, so he would be selling a piece of property that cannot be built upon if it is not rezoned. He stated he knows that is not the Board’s problem; but he wanted to bring out that it is going to stay at 4.75 acres. Mr. Enos stated another neighbor may have 2.8 acres, for instance, and then the 2.2 could go to 2.5 acres, so it depends on who Mr. Coffell sells it to.

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

Item IV.B.9. (Z0410102) Michael P. and Deborah S. Buono’s request for change from GU to RR-1 on 1.72 acres located on the north side of Golden Shores Boulevard, east of International Drive, which was recommended for approval by the P&Z Board.

Michael Buono stated he is present to rezone 1.72 acres that he purchased on the north side of Golden Shores Boulevard in Mims, from GU to RR-1 for the purpose of building on single-family residential home.

Commissioner Scarborough noted the P&Z vote was unanimous in favor.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to approve Item IV.B.9 as recommended by the P&Z Board.

Chair Higgs inquired why does the staff report show this as an increase of density. Mr. Enos stated right now the lots have not been shown to be nonconforming lots of record, so it shows zero units on the property under the current zoning; under the current zoning, it requires five acres for a house; but under RR-1, he would be able to have one unit, so it would be an increase of one unit. Chair Higgs inquired if the Board is creating, by approving this, a precedent that is going to encourage people to go to RR-1 in this GU area and to carve out odd lots like this; with Commissioner Scarborough responding he does not know. Chair Higgs stated it is a strange configuration of lots. Commissioner Scarborough conceded it is particularly odd.

Mr. Buono stated he owns nine quarter-acre lots; he only had seven surveyed; and all of the property is divided into quarter-acre unbuildable lots. He stated the only way to develop those is to put enough quarter-acre lots together to meet some zoning; and there are other RR-1 zonings on that street. Commissioner Higgs stated the Board is setting a standard in this area of GU undersized lots; and it needs to be careful and thoughtful about what it does. She inquired if RR-1 is appropriate; and stated she is only seeing a small part of the map. Commissioner Scarborough pointed out other RR-1 properties. Chair Higgs stated this is a very large area with many GU properties; and cautioned the Board about setting a precedent. She noted Commissioner Scarborough knows the area far better than she does. Commissioner Scarborough inquired what else would a rational Commissioner consider. Mr. Enos advised the only other zoning classifications that are in this area other than GU are RR-1 and RRMH-1; and in both cases, they are one-acre lots, so RR-1, based on the zoning patterns in this area and the fact that some of the lots are nonconforming lots of record, the one-acre lot is appropriate in this area.

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

Item IV.B.10. (Z0410103) Item removed from the Agenda.

Item IV.B.13. (Z0410106) Brevard County Board of County Commissioners, on its own motion and pursuant to Future Lane Use Policy 15.2, authorized administrative rezoning on property owned by CJJJT, Inc. to change from GU to PIP on 4.19 acres located on the south side of Grissom Parkway, 700 feet west of Camp Road, which was recommended for approval by the P&Z Board.

Mr. Enos stated this request was initiated by staff pursuant to Policy 15.2 of the Comprehensive Plan, which essentially states that when a parcel is discovered, which has a zoning that is inconsistent with the Comprehensive Plan through the development review process, then staff is to bring that property forward as an administrative rezoning to bring the property to consistency with the Comprehensive Plan. He stated the Comprehensive Plan is planned industrial; and PIP zoning is consistent with that.

Tom Mahone stated he was looking at Chapter 1115.2.b, which says all zoning classes shall be presented as options to the owner; and as far as he knows that was not done. Chair Higgs inquired if Mr. Mahone is the owner; with Mr. Mahone responding he represents the owner. Mr. Mahone stated he made several attempts to communicate with the Commissioner and the zoning staff, but he did not get anywhere and had to do most of the research himself rather than having it supplied. He stated he just discovered that tonight and it was not done; and inquired if it should have been done if there are other options.

Commissioner Scarborough inquired what are the other options; advised the zoning is supposed to be in conformity with the Comprehensive Plan; and he can table the item if Mr. Mahone wants, but when they come back the zoning has to be consistent with the Comprehensive Plan.

Mr. Mahone stated there are some discrepancies in the package the Board got from staff; and pointed out an area on the map that was zoned BU-1 and BU-2 in May of this year, but is also in the Comprehensive Plan for PIP. Commissioner Scarborough inquired how that happened that something in the PIP Comprehensive Plan classification was zoned to BU-1. Mr. Enos stated there are two classifications that are consistent with the Planned Industrial, PIP and PBP; and there is a parcel to the east that was recently rezoned to BU-1 and BU-2 that had been designated Planned Industrial, but was amended. Mr. Corwin stated there was a Comprehensive Plan amendment to Community Commercial from Planned Industrial for that property at the request of the applicant. Commissioner Scarborough inquired when did that occur; with Mr. Enos responding a few months ago. Commissioner Scarborough advised it is not shown on the map; with Mr. Enos responding that is how new it is. Mr. Mahone advised it was requested in February and approved in May 2004.

Commissioner Scarborough stated it would be good to table this; and the Board is not going to take action this evening. He requested the Board look at the bigger map; and stated several things happened; Grissom Road was built so they would not have to six-lane US 1; Grissom Road was the cheaper option; then as they found development along Grissom, particularly south of Port St. John, they wanted to limit the curb cuts; and in limiting the curb cuts, they got into different types of methodologies. He stated as part of that, Mr. Corwin and Mr. Denninghoff came by and they looked at the whole thing; and what is occurring now, which has happened since they did the small area discussion, is they put in the I-95 interchange. He stated Jess Parrish Hospital is coming in with a major investment there at the corner; and that is going to upwardly define something commercially. He stated further south they have Veronica Estates, which is fairly upscale for that area; however, down Camp Road, one runs into the jail, so there is a very dynamic situation. He stated he would like staff to come back with a brief report on some of the dynamics of the area because what he sees happening there is economic value is going to be developing rapidly; and it could either be collected with minimal curb cuts and upscale investment or it could be disintegrated into something else. He stated Mr. Enos pointed out the problem is that there are a lot of smaller lots out there; and the County at least needs to carve out a satisfactory classification where people will be willing to put some time, money, and thinking into it. He stated once Parrish is there at the nice interchange, there is a potential for other good investment in the area, which would define it in a way where there would be less curb cuts and something more satisfactory.

Chair Higgs inquired if Commissioner Scarborough wants to table this for a couple of months. Commissioner Scarborough stated the Board can table this to March 2005 as there is no rush on it. Mr. Enos advised the only problem would be that it would make it more difficult for the current owner to do anything with it. Mr. Mahone stated there was a contract on a piece of property zoned GU; and the owner was going to build a single-family house, which met all the criteria; and he was strong-armed out of doing it. Commissioner Scarborough inquired can someone build a single-family house there; with Mr. Enos responding one could build a single-family house in PIP, but that has been changed. Commissioner Scarborough noted the property has not been changed to PIP now; with Mr. Enos advising that is correct. Mr. Enos advised GU permits a house but GU is not consistent with the Comprehensive Plan right now. Commissioner Scarborough stated the Board will bring this item back up in a month.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to table Item IV.B.13 to the December 2, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to direct staff to provide a report on the dynamics of the area. Motion carried and ordered unanimously.

Item IV.B.14. (Z0410201) Holiday Builders, Inc.’s request for change from AU to RU-1-13 with a binding development plan limiting development to four residential units on 1.23 acres located on the southwest corner of Lucas Place and Bevis Road, which was recommended for approval by the P&Z Board as SR.

John R. Obzut, representing Holiday Builders, stated he comes with a proposal on a property in central Merritt Island; it is currently 1.23 acres in size; and it is 325 feet wide by 140 feet deep. He stated Holiday Builders has been building homes in the County for over 30 years; and they are a reputable builder serving the needs of first-time homebuyers by offering financing programs, competitive rates, and a quality product. He stated they understand the needs and concerns of all existing property owners and homeowners in the area when they come to build a home in a new area; and they want to work with existing property owners to address their needs and concerns as well as helping to enhance their property values. He submitted a handout; and stated page 1 shows current existing zonings around the property. He stated their property is zoned AU; it is currently nonconforming; and it is one of a couple of parcels in the area that are left isolated in an area of RU-1-9 and RU-1-11 zoning. He stated the second page shows a typical plot plan of an RU-1-9 zoning; on subdivisions of that size, there can be lots that are 66 feet wide by 100 feet in depth, which is .15 acre; and a home can be built that is only 900 square feet under air. He stated that allows seven homes to an acre; and that current zoning is directly across the street from the property in a subdivision. He stated directly behind the property is RU-1-11; and that can be seen in a similar subdivision located on Merritt Island east of Courtenay Parkway, called Villa de Palmas. He stated under RU-1-11, the minimum lot size is 7,500 square feet, which is .17 acre; and the minimum home size is 1,100 square feet, so there can be 5.8 homes on an acre. He stated what they are proposing this evening is to rezone as RU-1-13; the submittal shows a survey of the property; the minimum lot size would be 7,500 square feet with a minimum house size of 1,300 square feet; and this rezoning is compatible with the future land use of the property. He stated what they are proposing, using the zoning and a binding development plan, is to have larger lots; there will only be three homes on the parcel; two lots will be 80 feet by 140 feet deep, or .26 acre; and the third lot will be 140 feet by 140 feet, which is .45 acre. He stated the houses that they sketched in to show size comparisons are 1,650 square feet under air and 2,000 square feet under air; so they are proposing larger lot sizes and larger homes than would be required. He stated the photograph on page 5 shows that the property is not being used for agricultural use; it is very overgrown and not maintained; and it is loaded with Brazilian pepper trees. He stated there is an existing drainage canal that goes down the center of the property, which is not being maintained and is overgrown and an eyesore. He stated when the culvert pipe was put in, it was higher than ground level of the base of the canal, so there will always be water in the canal; but the photograph shows it is not standing water, but moving water with no algae growth; and it is supporting wildlife and fish. Mr. Obzut stated during construction they will be required to remove all Brazilian pepper trees from the property; and they will also completely enhance the beauty of the canal. He stated they will re-grade the canal, keeping the existing size; and they will completely re-sod so it will be more aesthetically appealing. He stated they are concerned with the surrounding property owners and their immediate concern, which is lot drainage; the survey shows there are two stormwater inlets on a utility easement in the front of the property, essentially not being used now; and the photograph shows no culvert installed on the front of the property or slope downgrade. He stated when they fill the property and assemble the building pads, they will grade it for a down lot drainage; they will also trench out, dig the culverts, and install the culvert pipes with the headwalls; and they will be grading all water runoff into the existing drainage canal. He stated they have modified their binding development plan; under the proposed zoning, the minimum lot width will not be able to fit four homes on the property; they can only put three homes; and that is why one piece is almost a half-acre. He stated the other amendment in the development plan is to install a rear drainage culvert; there were concerns from property owners behind the property that if they put fill on the property and build houses, their properties will have standing water where there is none now; and in order to avoid that, they would use the last ten feet of the property to create a culvert, grade it, and downflow the water into the existing drainage canal. He advised it would be fully sodded and look like the natural landscape of the homes they will be building. He stated as far as the environmental status of the property, they have been in contact with Natural Resources as well as hiring an independent biologist consulting firm; there are no wetlands on the property; there are no hydric soils; and it is not part of an aquifer recharge. He stated they have checked with U.S. Fish and Wildlife; it is not part of any scrub jay polygon under the 2001 maps; there are no endangered species living on the property; so environmentally, they have no problems. He stated the other concern is school capacity; their statistics show that companywide approximately 50% of their homebuyers have small children; however, they are only building three homes, so it would not be a substantial increase in school capacities. He advised the elementary and middle schools servicing these homes are under capacity; and the only critical issue would be the high school. He stated if the proposal goes through and development proceeds, it is not going to happen overnight; enumerated the things that would have to happen before construction would take place; and advised people would not be moving into the new homes until the middle of 2006 so children would not be going into the school system until the 2006-2007 school year. He stated that would alleviate some timeframe to help with any potential school overcrowding; the whole project will help develop the area with new affordable housing; and it will help increase property values for the existing homeowners without creating any problems environmentally or in terms of drainage.

Chair Higgs advised Mr. Obzut has three minutes for rebuttal, but there are two other speakers.

Craig Wenrich stated he lives on North Tropical Trail; and submitted drawings of the area. He stated the biggest concern is water runoff; the area is unique in central Merritt Island; it is basically AU; and in recent years people have changed the zoning, but sold the property. He stated the x’s shown on the drawing indicate houses; from Lucas south, the first five houses are on approximately ten acres of land; and the applicant was proposing four houses originally, but has downsized a little. Mr. Wenrich stated that is still too much density for that area; and there is wildlife there. He stated there are bald eagles, although maybe not on the property Holiday Builders just purchased; and that property is not buildable right now, which is why the area has been unchanged for at least 30 years. He stated further south it gets less dense; they get water runoff in their AU area; and if all the property is built up to the new Zoning Codes, they are going to flood the houses because their houses were built before the 1940’s and are low. He stated they are not in a flood zone; and Mr. Obzut said it is not wet when it rains, but there is standing water everywhere. He stated it all flows down his driveway back to the drainage canals; and it is too much density for the area. He stated there are wetlands in the area directly behind his house; the property being considered does not have wetlands; but the wetlands in back would probably be flooded; and flooding is his biggest concern.

Robert Morgan submitted a letter; and stated he owns property on North Tropical Trail; it is located right in the center of the mapped area; and his biggest concern is the flooding because his property takes a lot of water from Tropical Trail and from Lucas Place. He stated everything floods onto his property; the zoning Mr. Obzut is requesting is going to create precedent for more houses along Lucas Place, Bevis Road, and behind his property; it could create nine to fifteen houses in that little area; and there is not the infrastructure there to handle that kind of development. He stated Holiday Builders wants to develop with no cost to the developer; but this is going to be a cost to the neighbors and people who live in this area; and they are going to pay heavily. He stated he has one half-acre that he subdivided right on Tropical Trail; then he has another lot behind it, which is an acre and a half; and it is going to sit in the middle of the proposed development and become a pool. He stated he asked the P&Z Board that nothing be allowed to be built less than a half acre; his property is a half acre where he is re-building a house; and reiterated the property behind him is one and one-half acres. He stated the properties on both sides of him are almost an acre; nobody else has been able to subdivide; and even when his property was subdivided, it was never less than a half acre. He advised when they cut the three lots off on Bevis Road, that was part of his property at one time; and they left the zoning open for further development. He stated he agrees the development is needed in the area; but he does not think it needs to be that heavily developed. He stated if the Board finds in the applicant’s favor, the neighbors would like to voice their concerns; they would like to see the Board mandate that if they develop the property, it would have to be a regularly structured development for the utilities, drainage, and everything else to handle up to fifteen houses.

Chair Higgs stated the letter says, “We request that the Commission not allow any lot smaller than half-acre.”

Commissioner Scarborough stated if he is reading it right, there is AU zoning; the applicant wants to put four units on the agricultural property; and inquired what Mr. Morgan would find to be rational for that parcel. Mr. Morgan stated without having to upgrade the utilities, it should be more than a half-acre per house. Commissioner Scarborough advised the applicant has 1.23 acres; with Mr. Morgan responding he would like it to be two houses.

Chair Higgs stated the letter also says, “We ask that a new environmental impact study be conducted prior to zoning changes. The study should be done by State and County and should include the County Engineer for roads. New development would greatly affect the amount of stormwater being introduced into the system in the immediate area. The County should also perform a study to determine the effects on wetlands property due south of the proposed development. We ask the results be made available to the residents.” She advised there is more in the letter.

John Obzut stated the binding development plan has been revised; the original plan was for four houses; but it will only be three due to the size configuration under the zoning, and also includes the installation of a culvert for drainage on the rear property line, which would benefit the adjoining property owners. He stated one of the individuals who will benefit is present; and by installing the culvert draining the water into the existing canal, they will also be assisting him in draining off any overflow he says he is receiving on his property already with no development on those pieces of property. He advised no water comes onto the subject property from North Tropical Trail; they are not attached to North Tropical Trail, and are approximately 350 feet away from it; so they are not responsible for draining the water off that roadway. He stated they are trying to assist in draining water off their properties and the adjoining pieces of property; and environmentally he has a report from certified biologists saying there are no wetlands on the property; and he can forward the report to anyone who wants it.

Commissioner Pritchard stated when he and Mr. Enos discussed this, they talked about the P&Z recommendation for SR and putting two homes on the property; he is very familiar with this area; he has driven on Bevis Road, which as it goes further east becomes a dirt road; there is a cemetery and playground back there; and he has also traversed the canal area almost to Lucas Place. He stated he agrees with the homeowners that half-acre lots would be more appropriate in this vicinity.

Motion by Commissioner Pritchard, to approve Item IV.B.14 as SR limited to two homes.

Commissioner Scarborough inquired if the Board has the prerogative to approve SR if the applicant requested RU-1-13; with Assistant County Attorney Eden Bentley responding yes, under Chapter 62-1151(h).

Mr. Obzut stated under SR zoning, besides the 100-foot lot frontage, they would need a minimum of 150 feet in depth on the property; and this property is only 140 feet deep, so an SR zoning would make it nonconforming. He stated the proper zoning would be EU-2, which would limit it to two homes on the property; there would be 90 feet across the front and minimum 100 foot in depth; and the homes would need to be a minimum of 1,500 square feet under air.

Mr. Enos stated SR zoning is a 150-foot depth, so that will not work on this property; and the next step down from SR would be EU, which is a 15,000 square-foot lot and 140 feet in depth is adequate for EU.

Commissioner Pritchard inquired if they did RU-1-13 with a binding development plan for two homes, what would that do to the square footage of the homes; with Mr. Enos responding RU-1-13 has a 1,300 square-foot minimum square footage. Commissioner Pritchard inquired what would it be in EU; with Mr. Enos responding 2,000 square feet. Commissioner Pritchard inquired if they approved EU limiting it to two homes with the 2,000 square-foot minimum, is that something the applicant can live with. He stated he is not looking to see small homes on large lots; but he does want to keep two lots there. Mr. Obzut responded EU-2 would be preferable; it would bring the square footage down to 1,500 square feet; but that would still be a larger home.

Chair Higgs stated if the applicant is going to build a larger more valuable property, the Board could ask that he bind a size consistent with SR.

Commissioner Scarborough inquired what size does the applicant plan to build; with Mr. Obzut responding on the plot plan he furnished, the homes were 1,650 square feet and 2,000 square feet. Commissioner Scarborough inquired if the applicant has a problem with the 2,000 square-foot home; with Mr. Obzut responding no. Commissioner Scarborough stated there is no problem because the applicant agreed.

Chair Higgs stated in the binding development plan for EU-2 they could put a 2,000 square-foot home. Mr. Obzut advised they would not need a binding development plan under the EU zoning because there is no way to build more than two homes on the property. Commissioner Pritchard stated he is concerned about the size of the homes, so the binding development plan would be for the 2,000 square-foot minimum. Mr. Obzut advised under EU, one would need a minimum of a 2,000 square-foot home, so the zoning would cover the issues they were looking for in the binding development plan. Commissioner Scarborough inquired if everything is covered; with Mr. Enos responding under EU-2, it is a 1,500 square-foot home. Commissioner Pritchard inquired about EU; with Mr. Enos responding that is a 2,000 square-foot home. Commissioner Pritchard stated that is what he wants, so it will be EU zoning. Chair Higgs inquired if that is two lots; with Commissioner Pritchard responding EU would limit it to two lots.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to approve Item IV.B.14 as EU.

Chair Higgs stated she is going to vote no due to her previously stated concerns on IV.A.3 and IV.A.5.

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

Mr. Enos inquired if the motion was for EU with a binding development plan for two lots or just for EU; with Chair Higgs responding just EU because the understanding was that only two lots could come out of the parcel. Commissioner Scarborough inquired if that is wrong. Commissioner Pritchard noted there is an existing canal that separates the two lots. Chair Higgs stated there are 1.23 acres; and it seems to her that the applicant might be able to get three lots. Mr. Enos advised there is enough land to get three lots if they moved the canal.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to reconsider Item IV.B.14. Motion carried and ordered unanimously.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to approve Item IV.B.14 as EU with a Binding Development Plan limiting to two lots with minimum 2,000 square- foot homes. Motion carried and ordered; Commissioner Higgs voted nay.

Upon motion and vote, the meeting was adjourned at 9:51 p.m.

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

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SCOTT ELLIS, CLERK

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