MINUTES OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS

BREVARD COUNTY, FLORIDA

 

 

February 7, 2008

 

 

 

The Board of County Commissioners of Brevard County, Florida, met in regular session on February 7, 2008 at 5:18 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida.  Present were:  Chairman Truman Scarborough, Commissioners Chuck Nelson, Helen Voltz, Mary Bolin, and Jackie Colon, County Manager Peggy Busacca, and Assistant County Attorney Christine Lepore.

 

The Invocation was given by Reverend Jim Mitchell, First United Methodist Church of Cocoa Beach, Cocoa Beach, Florida.

 

Commissioner Helen Voltz led the assembly in the Pledge of Allegiance. 

 

 

County Manager Peggy Busacca advised the Board has a request to approve a letter to the Florida Department of Transportation Secretary regarding the six lane widening of I-95; and the letter was prepared at the request of the Board.

 

Motion by Commissioner Voltz, seconded by Commissioner Bolin, to authorize the Chairman to sign a letter to FDOT District 5 Secretary regarding the six lane widening plans for the portion of I-95 in Brevard County, south of Palm Bay Road.  Motion carried and ordered unanimously.

 

 

 

Commissioner Nelson read aloud a Resolution recognizing The Friends of Cocoa Beach Library Renovation and Addition Project.

 

Motion by Commissioner Nelson, seconded by Commissioner Voltz, to adopt Resolution recognizing The Friends of Cocoa Beach Library Renovation and Addition Project; and expressed appreciation and gratitude to all of the volunteers and staff of the library, The Friends of Cocoa Beach Library, and the citizens who have made regular use of the library as a place for enriching lives by providing information, resources and technology for general use.  Motion carried and ordered unanimously. 

 

 

Commissioner Nelson advised he has appointed Janis Walters to the Valkaria Airport Advisory Board.

Commissioner Voltz stated she believes it is the most disastrous appointment anybody on the Board has every made; it is a vindictive appointment and the airport has gone through quite a few accusations from Ms. Walters and none of them have been founded; there has been slander and a possible law suit; and she does not think Ms. Walters should be on the Valkaria Airport Advisory Board.

 

Commissioner Nelson stated he had the opportunity to speak to Ms. Walters; he voted for, and approved, the master plan; the master plan is going to go forward; and he has asked that Ms. Walters participate in the master plan and that it be her focus.  He stated Ms. Walters will bring a perspective of the citizens to the master plan; he has asked that Ms. Walters not make it personal; and she has assured him that will not be the case.

 

Commissioner Voltz stated she knows it is Commissioner Nelson’s appointment, but she still thinks it is a bad idea.  She advised during the master plan process, she knows the Board changed the way it voted on the appointments to be that there could be one vote per Commissioner and it did not have to come before the Board; but she thinks that should be changed and the appointments should be voted on by the entire Board; and she would like to see it come back to the Board on an Agenda item.  Chairman Scarborough stated any Commissioner can Agenda any item for discussion.

 

 

 

Commissioner Nelson advised he will be attending the Cocoa Library Walk-in, which is held on the second Friday of every month; and he would invite the public to attend from 9:00 a.m. to 11:00 a.m.

 

 

 

Commissioner Colon stated whoever the Board appoints on any advisory board is a reflection of the Board of County Commissioners; she shares some concerns in regards to when an advisory board votes on something, the majority of the group needs to be respected; and she is concerned that when the Valkaria Airport Advisory Board takes a vote and one person does not agree, it will be brought to the Commission.  She stated she encourages people to be a part of advisory boards, but she also respects the fact that a Commissioner feels strongly that there is an individual he or she wants to appoint to an advisory board, the rest of the Board needs to respect that decision.  She noted Commissioner Nelson made it clear that he feels Ms. Walters will represent him in a professional manner; and she would not want to change the process the Board has approved in the past. 

 

 

 

Chairman Scarborough stated the Sharpes Community Center is not coming together in a timely manner and Mr. Walter Butler has requested the Board withhold the opening of the Community Center from  February 16, 2008, to a later date.

 

 

Item VI.A.2. (Z0708403) – Ronald D. and Norma D. Levy and Casabella Development, LLC’s request for a Small Scale Plan Amendment (07S.15) to change the Future Land Use Designation from Neighborhood Commercial to Community Commercial, and a change from BU-1-A and RU-1-11 to BU-1 on 6.35 acres, located west of Wickham Road, north of Casabella Place, which was recommended for denial by the Local Planning Agency and the Planning and Zoning Board.

 

Zoning Manager Rick Enos advised the applicant for Item VI.A.2. has requested tabling; it cannot be an automatic tabling, as it is the applicant’s second tabling request.

 

The Board reached consensus to hear Item VI.A.2.

 

 

Item VI.A.3. (Z0711101) – Lahinch Land Partners, LLC’s request for a change from AU to RA-2-4 on 8.94 acres, located north of London Town Road, west of Carpenter Road, which was recommended for approval by the Planning and Zoning Board.

 

Motion by Commissioner Voltz, seconded by Commissioner Bolin, to table Item VI.A.3. to the March 6, 2008 Board of County Commissioners meeting.  Motion carried and ordered unanimously.

 

 

Item VI.B.4. (Z0712104) – Brevard County Board of County Commissioners, pursuant to Policy 15.2, authorized administrative rezoning of 226.75 acres, owned by Brevard County, from GU and GML to GML(H), located west of Adamson Road, adjacent to the south side of existing Central Brevard Solid Waste Disposal Facility.

 

This item was withdrawn by staff.

 

 

Item VI.B.8. (Z0711502) – John M. Gayden, Jr.’s request for a change from RU-1-11 to RP on .84 acre, located east of Hwy. A1A, north of Eau Gallie Boulevard, which was recommended for approval by the Planning and Zoning Board. 

 

Motion by Commissioner Colon, seconded by Commissioner Bolin, to table Item VI.B.8. to the March 6, 2008 Board of County Commissioners meeting.  Motion carried and ordered unanimously.

 

 

    

Item VI.B.1. (Z0712101) – Kelly Jo Strabley’s request for a change from AU and GU to RRMH-2.5 on 3.01 acres, located east of Railroad Avenue, north of Moore Road, also having frontage on west side of FECRR, which was recommended for approval by the Planning and Zoning Board.

 

Motion by Commissioner Voltz, seconded by Commissioner Bolin, to approve Item VI.B.1. as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

Item VI.B.2. (Z0712102) – Evelyn School and Raymond A. Bradburn, Jr.’s request for a change from GU to AU on 2.38 acres, located west of Pine Street, south of Date Palm Street, which was recommended for approval by the Planning and Zoning Board. 

 

Motion by Commissioner Voltz, seconded by Commissioner Bolin, to approve Item VI.B.2. as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

Item VI.B.2. (Z0712103) – David S. and Peggy A. McLaughlin’s request for a change from AU to RR-1 on 2.96 acres, located east of Tomato Farm Road, south of Lion Lane, which was recommended for approval by the Planning and Zoning Board.

 

Motion by Commissioner Voltz, seconded by Commissioner Bolin, to approve Item VI.B.3. as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

Item VI.B.6. (Z0712401) – Bradley W. Newman’s request for a Conditional Use Permit for a Veterinary Hospital/Clinic/Pet Kennel in an AU zoning classification on 5.118 acres, located south of Pluckebaum Road, east of Range Road, which was recommended for approval by the Planning and Zoning Board. 

 

Motion by Commissioner Bolin, seconded by Commissioner Voltz, to approve Item VI.B.6. as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

Item VI.B.7. (Z0712501) – Brevard County’s request for a change from RU-2-15 to GML(P) on 3.69 acres, located east of Hwy. A1A, north of Eau Gallie Boulevard, which was recommended for approval by the Planning and Zoning Board.

 

Motion by Commissioner Colon, seconded by Commissioner Bolin, to approve Item VI.B.7. as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

Item VI.B.9. (Z0711103) – Four Communities Fire Department, Inc.’s request for a Small Scale Plan Amendment (07S.20) to change the Future Land Use designation from Neighborhood  Commercial  to  Community Commercial, which was withdrawn by the applicant, and a change from RU-1-13 to BU-1 on .81 acre, located on the northwest corner of Macy Drive and Brentwood Drive, which was recommended for approval by the Planning and Zoning Board.

 

Motion by Commissioner Voltz, seconded by Commissioner Bolin, to approve Item VI.B.9. as recommended by the Planning and Zoning Board and with endorsement that a Fire Department is a permitted use in the GML(I) zoning classification.  Motion carried and ordered unanimously.

 

 

Item VI.C.1. Section 12, Township 25, Range 36, Parcel 757, on 1.33 acres, owned by Michael C. and Nancy M. Moss, currently zoned RU-1-13 (Single-Family Residential), and proposed to change to EU (Estate Use Residential, which was recommended for approval by the Planning and Zoning Board.

 

Motion by Commissioner Nelson, seconded by Commissioner Voltz, to approve Item VI.C.1. as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

Item VI.C.2. Section 12, Township 25, Range 36, Parcel 764, on 1.45 acres, owned by Michael C. and Nancy M. Moss, currently zoned RU-1-13 (Single-Family Residential), and proposed to change to EU (Estate Use Residential), which was recommended for approval by the Planning and Zoning Board.

 

Motion by Commissioner Nelson, seconded by Commissioner Voltz, to approve Item VI.C.2. as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

Item VI.C.3. Section 12, Township 25, Range 36, Parcel 762, on 1.21 acres, owned by Danny F. (Jr.) and Mary W. Farley, currently zoned RU-1-13 (Single-Family Residential), and proposed to change to EU (Estate Use Residential), which was recommended for approval by the Planning and Zoning Board. 

 

Motion by Commissioner Nelson, seconded by Commissioner Voltz, to approve Item VI.C.3. as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

Item VI.C.4. Section 12, Township 25, Range 36, Parcel 763, on 0.95 acre, owned by Thomas L. and Judith B. Sisserson, currently zoned RU-1-13 (Single-Family Residential), and proposed to change to EU (Estate Use Residential), which was recommended for approval by the Planning and Zoning Board.

 

Motion by Commissioner Nelson, seconded by Commissioner Voltz, to approve Item VI.C.4. as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

Item VI.C.5. Section 12, Township 25, Range 36, Parcel 760, on 9.2 acres, owned by Pulte Homes Corporation, currently zoned RU-1-13 (Single-Family Residential) and EU (Estate Use Residential), and proposed to change to all EU (Estate Use Residential), which was recommended for approval by the Planning and Zoning Board.

 

Motion by Commissioner Nelson, seconded by Commissioner Voltz, to approve Item VI.C.5. as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously. 

 

 

 

 

Liliana Argueta stated she is in favor of being allowed to be part of her religion as a spiritual being at the beach with her creator, the ocean, and the sun; she is a nurse who gives courtesy to every belief to her patients; and she would like the Board to allow her the same courtesy.  She stated she used to visit Playalinda Beach twice a month, but now she drives to Miami because she is being harassed at Playalinda; she does not know why she is being harassed, because to get to the beach and be closer to her beliefs, she has to walk for 20 minutes under the sun; and she is not interfering with anybody’s beliefs by being in a secluded area.  She stated she has raised her children to her belief that there is nothing wrong with the body; and to be nude at a beach is a spiritual belief and acceptance as her creator made her.   She stated the people at Playalinda Beach are some of the nicest people she has ever met. 

 

Robert Allen stated he is the area representative for The Naturist Action Committee, which is the legal and political arm of The Naturist Society, which is an organization representing recreational nudists in all 50 states and Canada.  He commented on his professions prior to retiring in Titusville in 2004, including a journalist, broadcast news executive, republican media consultant, municipal official, and public college administrator.  He advised he is seeking the Board’s help to resolve a dispute with the Canaveral National Seashore that is costing Brevard County taxpayers and merchants millions of dollars and bringing turmoil to a mile-long stretch of pristine beach that has been used by peaceful naturists without serious incident since 1942.  He stated naturists from all over the world and area residents have settled in Brevard County because of the clothing-optional beach at Playalinda; naturists have enriched the local economy between $50 million and $100 million per year; an economic impact study conducted last summer shows the average annual income of a visitor to the northern area of Playalinda Beach is nearly $70,000.  He stated many people are blaming the Board for the conflict at Playalinda Beach; the fault lies with the current administration of the Canaveral National Seashore; but the Board has the power to resolve the issue.  He noted the Board of County Commissioners gave the National Seashore the option to set aside a portion of Playalinda Beach as a public place for nudity; and that language is in the exemptions section of the anti-nudity ordinance.  He advised after negotiations the federal seashore erected signs stating after a certain point, one may encounter  nude  sunbathers; the signs ended user  conflicts, and  the problem  was solved; two years later a subsequent superintendent took the signs down; but there was still no problem until the present seashore administration put up new signs in October 2006.   He stated the new signs stated nudity on the beach or in public is prohibited by Brevard County Ordinance 95-21; the signs do not exist at any of the other 72 miles of beach in Brevard County; and the signs do not exist at any of the other 12 beaches at Playalinda.   He stated the new signs have cause first-time naturists to be misdirected to one of Playalinda’s other beaches; unsuspecting families who do not want to encounter nude sunbathers are lured by the signs onto the traditional nude area; and the new signs were designed to draw complaints and chase away naturists from the second most-visited tourist destination in North Brevard.  He stated at the instigation of Canaveral National Seashore Superintendent Carol Clark and Chief Ranger Eric Lugo, the serene nature of Playalinda Beach was disturbed last summer when Brevard County Sheriff Deputies began appearing on the beach for the first time in ten years demanding that nudists cover up or face fines of $500.00 and/or a year in jail.  He stated there have been very few complaints because most people are content to let the naturists have their own little corner of the beach far away from everyone else; a 2006 Roper poll found that 74 percent of Americans believe people who enjoy nude sunbathing should be able to do so on a beach accepted for that purpose; and a more recent poll by the Florida TODAY found only two percent of Brevard County residents oppose nudity at Playalinda Beach.  He stated throughout the County most people support the way the naturists choose to relax in the Florida sun; and all the naturists ask is to be left alone so they can spend money locally and pay taxes.  He noted no one has yet been cited or arrested for nudity; but the threat is hanging over the naturists and has caused thousands of tourists to stop coming to Playalinda Beach; and it is costing local taxpayers thousands of dollars to keep sending deputies dozens of miles into a non-taxpaying area at a time when violent crime is on the rise in the local communities.  He stated the anti-nudist bias among the federal employees at the Canaveral National Seashore runs counter to the long-standing National Park Service policy of accommodating differences in lifestyles and values with sympathy, dignity, and tolerance.  He stated the naturists see the need to have signs installed that exist at other National Parks throughout the County, including national seashores elsewhere on the Atlantic Coast, from Main to Florida; and the naturists are asking the Board’s help in restoring the dignity and tolerance promised by the National Park Service.  He requested the Board of County Commissioners urge the local superintendent to designate the traditional clothing-optional area at Playalinda Beach as “A public place set aside for nudity,” as provided for in the County Ordinance; the naturists will pay for the correct signs, although they already pay with entrance fees and federal taxes; and if the federal employees refuse to follow the suggestion, the Board has the power to amend its Ordinance to remove the federal seashore from its jurisdiction.  He noted he met with one Commissioner recently who opposes public nudity at Playalinda on moral grounds; he understands some people equate nudity with prudent sex; people come to the beach to leer through binoculars and even take pictures; but thankfully the people looking are disappointed by what they see and do not stay long; and the naturists who frequent the beach object to the voyeurism.  He stated nude is not lewd; the naturists are normal people; the naturists have always assisted the rangers in stamping out obscene behavior; and they all try to follow the Golden Rule.  He stated the Sheriff Deputies should arrest the voyeurs, as it is their behavior that is lewd; there are laws against peeping toms in Brevard County; the rangers could regularly patrol the beach as they do at other national seashores to discourage such behavior; but instead the Deputies do their own leering and encourage anti-social behavior against the naturists; and the Deputies’ behavior is, at best, unprofessional. 

 

Johathan Shopiro stated he is a board member of the Naturists Action Committee; there is a disagreement between people who want to be nude and people who do not want to see nude people; signs need to be posted on the beach with one side saying beyond a certain point one may encounter nude sunbathers; and on the other side of the sign should read that beyond a certain point clothing is required.  He stated the signs will keep the people who want to be nude apart from the people who do not want to see nude people; and conflict can be avoided and people can tolerate each other by simply staying apart while at the beach. 

 

Diana Coffin expressed appreciation to Commissioner Colon for responding to her email regarding the harassment of the skinny-dippers at Playalinda Beach; she would like to encourage other Commissioners to do the same in the future; and even if a Commissioner opposes the issue on moral grounds, responding to constituents shows he or she respects differing opinions.  Ms. Coffin advised she moved to Brevard County solely for access to Playalinda Beach; when she first arrived there were no problems at the beach; and Playalinda Beach was peaceful with no animosity.  She stated she spent her life savings to buy her property; she pays $3,000 in taxes yearly, which goes towards the Board’s salaries as well as the rest of the County responsibilities; and based on the negative events at Playalinda Beach she feels her taxes are misused by harassing the nudists at the beach.  She stated the nudists at Playalinda Beach educate newcomers of the rules; they provide water if someone did not bring any; they clean up the beach on a regular basis; they alert the Rangers to any safety issue; and they rescue turtles and other wildlife.  She stated as a registered nurse she is always a first responder on Playalinda Beach; she responds to near-drownings or any form of injury; she initiates 9-1-1 as appropriate; and she does all of it pro-bono for anyone in need.  She stated her professional training does not allow her to discriminate; and she does not appreciate anyone discriminating against her.  She advised on January 4, 2008 there was a drive-by shooting at 2120 Turpentine Road in Mims; the site is 1,500 feet from the front of her house; the media did not cover the event; the entire neighborhood was negatively impacted and is now terrified; and had the Sheriff’s Department been at the beach harassing the nudists, the response to the violent crime would have been delayed by travel time to get to the scene of the shooting.  She stated the misuse of County-owned helicopters to do a fly-by only over the north end of Playalinda Beach to spy on the nudists when NASA has its own chopper to patrol the beach, is unacceptable to her; the cost to operate a chopper is over $1,000 per hour, which is all at the taxpayers’ expense, as well as the deputies’ time to drive out to Playalinda Beach; and not once has a citation been written for nudity.  She stated the previous Superintendent, Mr. Newkirk, would ride up and down the beach on an ATV stopping to speak to any person on any topic of concern; Mr. Newkirk was focused on promoting harmony for all patrons of the beach; and Mr. Newkirk never discriminated or judged anyone.  She noted since Carol Clark has taken over the role as Superintendent, she has never been seen on the beach, nor has she done anything to facilitate a positive rapport with the beachgoers, clothed or not, at Playalinda Beach; Carol Clark has ignored concerns brought to her attention; and has promoted negativity and systematically eradicated all the good that Mr. Newkirk worked so diligently to implement during his tenure.  She stated on October 22, 2006 she asked Ranger Jeremy Marple for help, as a man was behaving in a threatening manner toward her personally; after describing the specific circumstances to Ranger Marple, he responded to her, “What do you expect?” in a condescending and sarcastic manner;  and Mr.  Marple said that to her twice after she reiterated the circumstances objectively and factually.  She advised she wrote a letter to Carol Clark explaining the incident and was ignored by Ms. Clark; she sent the same letter to Washington D.C.; and the Board has a copy of that letter for its review.  She noted since that time, Mr. Allen, the Naturist Action Committee representative, and representatives from the American Association for Nude Recreation have met with Superintendent Clark to try to improve communication and resolve conflicts without success; her letter to Superintendent Clark was used as evidence to prove to the judge in federal court in Orlando, about the harassment of nudists by rangers that culminated in other cases being dismissed or having the charges reduced.  She stated nudists are now targeted by rangers who make unprofessional, disrespectful comments; one ranger refers to her personally as ‘legs’; the rangers are trying to ticket for anything they can in order to drive out the nudists; one ranger in particular crawls on the dunes in which he is supposed to be protecting in order to spy on nudists with a camera and binoculars; and that ranger has not been successful catching anybody doing anything wrong.  She stated Ms. Ursula Dickens, as 68-year old retired business owner asked her to relay information to the Board.  She advised Ms. Dickens pays $12,000 annually in real estate taxes to Brevard County; Ms. Dickens moved to Brevard County solely for the nude beach and was recently disrespected by a Sheriff’s Deputy; the Deputy told Ms. Dickens to leave the beach and put on her clothes, or else she would be arrested and pay a fine of $500; and the Deputy terrified Ms. Dickens to the point of tears.  She stated to summarize, nudists are being stereotyped, discriminated against, criminalized, and demonized, without provocation; the County is losing billions of dollars due to the rangers and Carol Clarks’ manipulation of County Ordinance 95-21; and the federal law does not allow the rangers to arrest for simple nudity. 

 

Michael Carl Dugan stated he has lived in Cape Canaveral for 15 years; and has been going to Playalinda Beach for 15 years.  He stated the first time he visited Playalinda Beach the north end of the beach was packed; and people were doing normal things such as fishing, walking along the beach, and playing in the surf.  He stated after a while he joined the others at Playalinda Beach and realized he had taken off more than his clothes, as he was in front of God as He made them.  He inquired where is the money going to come from for the conservative Christian-inspired Ordinance 95-21, as stated in the New York Times on July 16, 1995, if the money is left over from Homeland Security Funds, if being naked is a terrorist act, and what will be the cost of the Sheriff’s Deputies wandering the beach looking for naked citizens, or just taking in the show. 

 

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

 

He stated the real shame is that the police force is under funded; some mothers cannot send their kids outside to play without putting their lives in danger; drunks are rampant on the roads killing innocent people; and crime is on the rise.  He requested the Board repeal Ordinance 95-21, or at least let the nudists have the section of the beach they have used for the last 60 years, and send the Sheriff’s Deputies back to the jobs they are being paid to do, which is to protect and serve civil rights.

 

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

 

Jon Peterson stated he is a native Floridian of 62 years; and he has been frequenting Playalinda Beach since before it became a National Seashore.  He stated he wrote a letter which was published in the Florida TODAY in reference to the crime that he has watched skyrocket in the State of Florida for the past 62 years.  He stated the police officers and Sheriff Deputies that he has encountered on the beach have been respectful and professional; stated Canaveral National Seashore is federal property; there are federally certified law enforcement officers that carry guns; but they do not enforce the law because according to Superintendent Carol Clark they cannot enforce a County Ordinance, they can only enforce a federal law; and there is no federal law about being nude.  He advised the law enforcement officers at Canaveral National Seashore can enforce the State law; but there is no State law against being nude at the beach.  He noted there is a County Ordinance against nudity at the beach, but the law enforcement officer at Canaveral National Seashore cannot enforce it.  He stated the previous speakers who mentioned harassment are talking about the fact that the Rangers cannot do anything about the harassment; only the Brevard County Sheriff’s Department can do anything about it; and the Sheriff’s Deputies have to drive 14 miles, one way, just to tell someone to put their clothes on.  He stated he remembers when the Ordinance was enacted and the City of Cocoa Beach putting the County Commissioners on notice that it would not enforce the Ordinance in Cocoa Beach; and to this day, the City of Cocoa Beach does not enforce the Ordinance, because it realizes it would lose tourists.  He stated new signage is needed at Playalinda Beach and the Ordinance should be amended.

 

Samuel Miller M.D., stated he is a Christian, physician, and a nudist; different things are appropriate in different settings; and everyone needs to think about which standards are judged.  He stated in his professional setting nudity is commonplace, as it is part of healthcare to examine a nude body, and it is not seen as offensive; a County Commission meeting is not the appropriate setting to see a nude body; but a nude beach is an appropriate setting to see a nude body.  He commented on leaving the beach in the past due to the harassment and going to Volusia County and Miami instead.  He advised he is a member of the American Association for Nude Recreation, which has over 50,000 active members; and a lot of members go to resorts as opposed to beaches because of the harassment at Playalinda Beach. 

 

Phillip White stated he is retired from the United States Air Force as a Colonel; he has been stationed in many federal installations; and he has never known County law to trump federal law.  He stated Playalinda Beach is a National Seashore and is a federal piece of property; he would suggest the Board’s constituents might be interested in enforcing all of the other County laws on federal property; liquor is served on Patrick Air Force Base, which is in violation of certain County and State laws; but it is not enforced because it is on federal property.   He inquired why County law is being enforced on federal property at Playalinda Beach, when it is not enforced at Patrick Air Force Base. 

 

Brian Strutt stated he is a part-time resident of Brevard County and spends between $20,000 to $25,000 per year in Brevard County; the reason he comes to Titusville is because of Playalinda Beach; and if the nude beach disappeared, so would he. 

 

Christine Lepore, Assistant County Attorney, stated the Nudity Ordinance has been on the books for approximately 13 years; the Ordinance has been challenged several times unsuccessfully; there is no concern from the County Attorney’s Office that there is any need to change the Ordinance from a constitutional perspective. 

 

Chairman Scarborough stated he is the only Commissioner who sat in on some of the discussions with the Department of Interior; questions were raised in great detail; comments were made by the Legislative Delegation and Congressional Delegation; and he thinks the Board would benefit from a report of the issues that were raised in those earlier discussions.  He advised when the report is completed, the public can look at it and voice opinions.

 

 

 

Item VI.A.1. (Z0709104) Janendra Gautam and Harbans Sing Ranshi’s request for a change from BU-1 to TU-2 on 2.88 acres, located on the southwest corner of S.R. 520 and Lake Poinsett Road, which was recommend for approval with a Binding Development Plan by the Planning and Zoning Board. 

 

Assistant County Attorney Christine Lepore stated a question has come up about how to interpret the definition of TU-2 zoning; there is a one-half mile zone that the zoning classification is available; and she would like to discuss the first sentence in the definition of TU-2.  She advised the definition states, “To encompass lands devoted to tourist facilities located within one-half mile from interstate or expressway interchanges rights-of-way where traffic facilities are capable of accommodating higher density uses and resulting traffic volumes.”  She noted the question has come up of whether the entire parcel needs to be within the half-mile area, or is it the tourist facility proposed to be located on the property that needs to fall within the half-mile area; and there is a question as to whether the language in the TU-2 definition is clear.  She stated   the   zoning   classification  was originally  adopted  in  1973,   and   there   is not a lot of legislative history as far as what happened in 1973; but staff knows how the classification has been applied since then; and with GIS assistance in the Zoning Department, the County Attorney’s Office has been able to see that almost all of the TU-2 properties are entirely within the half-mile radius.  She noted there is one parcel near the interchange at I-95 and S.R. 192 in which most of the property is within the half-mile zone, but there is some of the property that is not in the zone; and at an interchange in Micco, a property was administratively rezoned to TU-2 by the Board in 1975, and is within the half-mile radius of I-95.  She stated the question for the Board is whether the subject application, which shows a very small portion of the property within the half-mile zone meets intent of the Ordinance. 

 

Chairman Scarborough inquired how much of the subject property is within the half-mile radius; with Zoning Manager Rick Enos responding approximately the east 27 feet.  Ms. Lepore stated it does not appear that the tourist related facility, the hotel, would be within that half-mile zone.  Chairman Scarborough stated since it is a question of whether the Board can consider the request or not, it would be best to discuss this issue first.

 

Cliff Repperger, representing the applicant, stated he would argue to the Board that no one at the staff level or at the Planning and Zoning Board meeting has ever raised this issue; the applicant has spent thousands of dollars in legal fees and expert fees to get to this point in the rezoning.  He stated at the last Commission meeting, the Board specifically asked for confirmation that the property line was within the half-mile buffer; and he will submit for the public record the opinion of Susan Jackson, County Surveyor, that the subject property is within the half-mile buffer.  Chairman Scarborough stated the question is whether or not the facility itself needs to be within the half-mile radius.  Mr. Repperger stated it is an interpretation of the Ordinance the Board would be making; but the Board wanted confirmation that the subject property was within the half-mile radius based on the property line; and he has satisfied that requirement, but now the rules of the game seem to be changing.  He stated in his opinion the board is estopped from making a determination after the application has been filed and after the public hearing has basically been had; at this point in time in the process the Board is going to try to make an interpretation to the Ordinance to try to deny the project; and in the opinion of the applicant, the Board would be barred by estoppel from trying to stop the applicant or deny the project based on an interpretation put into place at this point in the process that has not existed in the past and does not apply to other properties within Brevard County.   He stated the applicant has relied on staff’s opinion of allowing them to submit the application to get to this point; the applicant has spent thousands of dollars on expert fees, legal fees, and getting the application to this point; and now the Board is going to change the opinion when no one at the staff level or anyone at any other point had told the applicant the subject property has to be within the full half-mile zone and that the applicant should not apply for the rezoning.  He stated to the extend that the property is partially within the half-mile zone, he would submit to the Board that it needs to consider this project within the normal course of considering rezonings and what is applicable to the rezonings and not apply an after-the-fact interpretation of this Ordinance that would attempt to bar the project.  He stated he would also make the argument that in reading the language it is not clear that the actual facilities need to be located within the half-mile; the language actually reads, “Encompasses lands devoted to tourist facilities located within  the  one-half mile”; and  all of  the  subject  parcel will be  dedicated to the  project, which relates to a tourist facility.  He noted the Ordinance is not clear that the entire parcel needs to be included within the half-mile; and it is not the case with all properties in Brevard County.

 

Commissioner Voltz stated the Board needs to clarify the issue; the Ordinance should be amended to required parcels to be located within the half-mile; and the Board needs to move forward with a vote on the project tonight. 

 

Chairman Scarborough inquired if doctrine of estoppel does not apply; with Ms. Lepore responding no, as the Board has not made a decision.  Ms. Lepore stated the acceptance of an application from the Zoning Department does not mean the applicant, who has the burden to establish compliance with all the criteria in the Code section they are trying to rezone to, has been met; and that is a determination for the Board of County Commissioners, which has not reached that yet. 

 

Mr. Repperger stated it is not the granting of the rezoning he thinks the applicant is entitled to, it is the hearing of the rezoning the applicant is entitled to by way of estoppel. 

 

Susan Frank stated the verbiage in the TU-2 zoning classification indicates, “Tourist facilities located within one-half mile from interstate interchange rights-of-way.”  She stated the question is how a facility is defined; according to Blacks Law Dictionary, a facility is something that is built, or installed, to perform some particular function; another question is how “within” is defined; and according to Webster’s Dictionary, “within” is inside the bounds as a region, not further in length, as in, “within five miles”.  She stated based on the Ordinance and the two definitions it is clear that the constructed hotel in its entirety must be inside the bounds of the half-mile zone; and the residents think it is obvious that the applicant’s proposed hotel does not meet the test of being within one-half mile from I-95, and would ask that the Board interpret the Ordinance as such.

 

Mr. Repperger stated what the Ordinance specifically says is, “Lands devoted to the facilities”; the subject parcel is one contiguous and it is the land that is devoted to the tourist facility.  He stated he agrees that the Ordinance is vague; it is up to the Board whether it needs an interpretation to determine how it is going to interpret the ordinances; but the retroactive application of a determination at this point in time to the subject application is a violation of the applicant’s due process rights. 

 

Chairman Scarborough inquired when the public hearing was closed on the item; with Mr. Repperger responding during the November hearing the applicant had given a presentation, the residents spoke, and the applicant made a rebuttal before the motion to table had been made; but he does not know if that technically marked the end of the public hearing. He advised the applicant firmly believes this is a violation of the due process rights and objects for the record.  Chairman Scarborough inquired if Mr. Repperger has any case law of anything occurring during a public hearing when an estoppel was applied; with Mr. Repperger responding he found out about the issue yesterday, and most of the cases he has found in the State of Florida relate to applications that have been submitted for building permits or the such in zoning classifications that  are existing, and  then  after  the  fact  the  application  being in,  the  zoning  classifications change.  Chairman Scarborough stated in almost 30 years he has never been in a case in which he was estopped to look at an ordinance and apply it; he does not doubt the fact it would have been beneficial for all concerned if this problem would have been addressed at the outset; however, he does not think anyone has benefited, including the applicant, County staff, and the residents.  He stated he has a problem during a public hearing, when a public body is making a zoning change, and then at any moment not be able to look at its own ordinances, because it was stopped.  Mr. Repperger stated it is not the fact that the Board cannot look at its own ordinances; it is a retroactive application of an interpretation of an ordinance that has not been applied in the past to the subject application after it has been demonstrated to the Board that the criteria has been met that the Board requested.  Chairman Scarborough stated he comes to hearings not knowing what questions he is going to ask and he would not like to be told it is too late to ask a question.  Mr. Repperger stated it is the interpretation and the application of a policy determination that the Board has not made at this point to any other rezoning like the proposed request in which there are properties that do not apply or do not satisfy the interpretation that is trying to be made.  Chairman Scarborough stated he is giving Mr. Repperger the opportunity to tell him he is wrong as to the estoppel issue; the Assistant County Attorney has  said estoppel should  not apply;  and he  has never  seen estoppel apply, but he is not doubting the issue of fairness.  Chairman Scarborough stated he would like to have more information on the parcel Ms. Lepore mentioned in which only a portion was in the half-mile zone and the remainder was not. 

 

Ms. Lepore stated Zoning staff has a map of that parcel; that particular parcel is different in that it is large enough that it is possible to put the tourist facilities within the one-half mile zone; to the extent that Mr. Repperger is stating the Board is changing its position on how to interpret the Ordinance, the Board has not been asked to apply it to the situation that arises with the application where a very small portion falls within the one-half mile zone; and she respectfully disagrees it is a change in past interpretation and application.

 

Commissioner Colon stated there are going to be many testimonials given by the community on both sides, and the Board has not decided what it is being based on, whether it is safety, traffic, crime, or whatever, the Board has not gotten that far.  Chairman Scarborough stated the problem is that the Ordinance states the Board cannot hear the item; the Board should not open the public hearing for any further discussion because if it did it would be contrary to the Ordinance; and before the public hearing is opened for discussion, the Board has to decide if it wants to hear the item.  He stated the word “facility” makes the decision difficult because of the 27 feet, and he will pass the gavel. 

 

Commissioner Colon inquired who is determining that the Board cannot move forward; with Ms. Lepore responding it is her understanding the Board is having a discussion to establish what the criteria is in the first place, and if the whole property has to be within the half-mile zone, or if the tourist facility has to be within the zone.  She advised it is a quasi-judicial process; the applicant has the initial burden to establish that the criteria are met; and the Board is initially resolving what the criteria is regarding the half-mile zone.  Commissioner Colon inquired what is Ms. Lepore’s recommendation to the Board; the Board does not want to jeopardize the process; and she  wants to be  clear  so that  everyone  knows  what the  Board is doing.  Ms.  Lepore replied considering it is a quasi-judicial process, she suggests in an abundance of caution that the Board initially decide what the criteria means regarding the half-mile zone, and then proceed with the public hearing.

 

Chairman Scarborough stated his feeling is the Board needs to decide whether it can legally hear the item; stated the language “lands devoted to tourist facilities” leads him to believe that 27 feet of the large subject parcel is not capturing what was there; and the Board has historically not rezoned any other property in which only a small portion meets the criteria. 

 

Commissioner Voltz stated she interprets the language to mean the facility itself has to be located within one-half mile of an interstate interchange; and the subject parcel does not meet that; but the Board needs to clarify the language in a future ordinance.   Chairman Scarborough stated the Board is being told that until it clarifies the one-half mile issue, it should not open the discussion; and by opening discussion, the Board is saying it is ignoring the section of the Ordinance.

 

Commissioner Nelson stated clearly the Board that put together the Ordinance was trying to address the issue of impact such as traffic and everything associated with it while keeping it near an interchange and not to have the impacts spread out over a distance. 

 

Motion by Chairman Scarborough, seconded by Commissioner Voltz, to interpret that the 27-feet within a half-mile from the interstate does not meet the criteria of Section 62-1512.  Motion carried and ordered unanimously.  

 

 

Chairman Scarborough stated he agrees with Mr. Repperger that this is not the way government should operate.  Mr. Repperger stated he respects the Board’s decision, but he believes it is fundamentally unfair what has been done to the applicant based on the staff report allowing the request to continue; and he believes the Board should entertain a motion to refund the applicant his application fees and costs based on the Board’s determination.  

 

Chairman Scarborough stated he does not have a problem refunding the applicant’s fees.  Commissioner Voltz inquired the amount of fees to be refunded; with Zoning Manger Rick Enos responding $2,240.

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to approve refund in the amount of $2,240 to the applicant.  Motion carried and ordered unanimously.

 

 

Chairman Scarborough stated he would like to apologize to the applicant and the citizens; but the Board tries to do the right thing even if it is at the last hour. 

 

Commissioner Nelson inquired how the Board determines where the intersection is at the interchange; FDOT may have longer sections of intersection that they call limited access which may extend further into the community; and he would  like staff to look at some clarification as to

how the Board is supposed to make the measurement, as it is critical to make a starting point that does not move.

 

 

 

Item VI.A.2. (Z0708403) Ronald and Norma D. Levy and Casabella Development, LLC’s request for a Small Scale Plan Amendment (07S.15) to change the Future Land Use Designation from Neighborhood Commercial to Community Commercial, and a change from BU-1-A and RU-1-11 to BU-1 on 6.35 acres, located west of Wickham Road, north of Casabella Place, which was recommended for denial by the Local Planning Agency and the Planning and Zoning Office.

 

Ron Levy stated he is requesting a tabling of his request for rezoning because he has made significant changes  in regards  to what  he wants to  do with the property; he has not yet had an opportunity to meet with the homeowners to discuss the changes; but there is a Homeowners Association meeting on February 16, 2008 and he would like to present the changes to his request at that meeting.

 

Chairman Scarborough stated he would like to discuss the tabling issue first; and inquired if there is anyone to address the tabling request.

 

Mike Richards stated according to the Agenda, the item was heard at a Planning and Zoning Board meeting on August 6, 2007; it was tabled at a Commission meeting on September 6,  October 4, and December 6, 2007; and tonight’s meeting will be the fifth meeting he has attended on the issue; and he would like to see it resolved. 

 

Gregory Au stated there was a Homeowners meeting in December 2007, which Commissioner Bolin facilitated; during that meeting there was a lot of resident input; the developer was also at that meeting; but the developer has basically not responded to the comments from that meeting.  He stated there were four modest requests the homeowners asked the developer to incorporate into the Binding Development Plan; he has over 30 emails in which he has asked to try to get a meeting with the developer; and it has been going on for over six weeks.  He noted a week before tonight’s meeting the developer suddenly has a new plan he would like to present to the Board; the new plan substantially changes the dialogue that has been going on; and the developer has not fundamentally responded to any of the residents’ requests.  He urged the Board to consider the item; there has been plenty of input from residents; there were votes taken during the homeowners’ meeting; and he would like the Board to reject it.

 

Ed Hecker expressed appreciation to Commissioner Bolin for facilitating the meeting in December 2007, in which she witnessed a unanimous vote against the request.  He stated the residents  have  been told time  and time  again  the  developer will  do  whatever they want; the

Board has heard several time what the homeowners want; and he would urge the Board to not table the request any further and to simply deny it.

 

Commissioner Bolin stated there was a suggestion that the Board could approve a split zoning.  Zoning Manger Rick Enos advised split zoning is an option for the Board at any time; the Board can consider a rezoning on the entire property or it can consider rezoning on a part of a property.  Commissioner Bolin stated she would like the Board to hear the item.

 

Ron Levy stated the subject property is located across from the Post Office on Wickham Road; to the north of the subject property is Tire Kingdom and a shopping center; to the south is property that he owns, which is zoned BU-1; and further south is an Ace Hardware.  He noted the subject property is surrounded by BU-1 zoning; and he is requesting a change from BU-1-A zoning to BU-1 zoning.  He stated the homeowners who live in Casabella do not live behind the subject property; the residents live behind a piece of property that he owns to the south, which is zoned BU-1; and the residents’ entrance is directly across from a storage facility.  He advised at the request of the homeowners he built a beautiful clubhouse, tennis court, playground, and parking  lot, on  a  60-foot  tract of land that  separates  the  homeowners  from  the BU-1 zoned property immediately to the east.  He stated in his opinion, none of the homeowners are affected by the rezoning of the property, which is to the north; and the residents moved into their property knowing there was BU-1 directly in front of them.  He advised he has tried to work with the homeowners to ensure they do not have to worry about him building a used car dealership or a bowling alley on the subject property, even though it could still be done on the property next to their entrance.  He stated he has excluded most items that could possibly be built in the BU-1 zoning; but there is a short list of items that he and the homeowners do not agree on.  He stated he has been looking at some solutions to create a buffer between the homeowners’ lots that are immediately adjacent to the subject property; he has agreed to provide a solid wall that would separate the subject property that has ten acres of land behind it that is undeveloped; and he is also working on design packages that would provide a buffer piece of property, or greenspace, that is required for new subdivisions to the east of the solid wall.  He stated the product he is most interested in looking at is an Independent Living Facility; he likes that option because there is an oak hammock in the area and he feels he can use that greenspace instead of just being required to have it for the subdivision; and it would provide a beautiful buffer between the new subdivision and the Independent Living Facility.  He noted BU-1 does not currently allow an Independent Living Facility; he has been working with staff to see what could be done about that; Mr. Enos can support putting an Independent Living Facility under the permitted uses in BU-1; and he would like to request the Board consider that option.  He noted an Independent Living Facility is something that is acceptable to the homeowners and he has been working to find something that is amenable to the homeowners. 

 

Commissioner Colon stated the Board does not like things to be tabled time and time again; the citizens want to work with him and the Board expects him to meet with the citizens; when an item has been tabled as many times as this item has been tabled, the Board feels the applicant has been disrespectful; and inquired why the item has been tabled so many times; with Mr. Levy responding the first time his item was tabled he was caught off guard because he did not know there  would  be  any  resistance  because  there  is  BU-1 zoning  in front of the subdivision; the second time it was tabled was last month when Commissioner Colon was not present; and those are the only two times he knows of when it was tabled.  He stated the request to table at the last meeting came from the Board; and he agreed based on the Board’s suggestion. 

 

Commissioner Bolin stated the last tabling was entertained by the Board because it wanted to have the opportunity to have a neighborhood meeting.  Mr. Levy advised his request to table now is because he has made some changes because he did not understand that with a new subdivision there are new ordinances that required 25 percent greenspace; he also did not have the input of the homeowners and the input of what they did and did not want; and in an attempt to solve that problem, the concept of an Independent Living Facility seemed like a good idea. 

 

Commissioner Colon stated the homeowners have said they have been trying for six weeks to get a hold of Mr. Levy, and the only time they were able to get a response from him was a week ago; and inquired why that is the case; with Mr. Levy responding he disagrees with Mr. Au on a lot of things, but he personally has invited Mr. Au on many occasions to meet and see the oak hammock;  and he  can show the  Board an email from Mr. Au stating he did not want to do that.  Chairman Scarborough stated Mr. Levy needs to explain any changes that are before the Board tonight for the first time.  Mr. Levy pointed to a map and indicated the location of the subject property; stated the land to the rear is entirely vacant; and indicated where the homeowners live, which is behind a piece of property he is currently developing.  He stated he wanted to have an aluminum fence, and now it has changed to a solid wall; he wanted an aluminum fence because he was anticipating having an oak tree hammock buffer that he thought would be nice to look at by the homeowners; but the homeowners do not want that, so that is one concession he has made in order to try to have some peace.  He advised he had previously offered a second entrance into the subdivision; during the interim period he has come to understand he needs 25 percent greenspace; he also has input by some homeowners who do not want the second entrance; he has eliminated that second entrance to allow for a greenspace buffer in the area; and those are the two major changes to his request.

 

Janet Hecker commented on Mr. Levy not stating in his Binding Development Plan that he will build a solid wall; and if he does not build a solid wall she will be able to see Wickham Road from her house.  She stated Mr. Levy mentioned a new neighborhood, but it is not a new neighborhood, it is just the third phase of the current subdivision. 

 

Chairman Scarborough inquired what the homeowners want in the Binding Development Plan besides the solid wall.  Commissioner Colon stated according to her notes the last tabling is the only one that was tabled by the Board; but the item was tabled in September and October; and then it was tabled by the Board at the last meeting in December.  She inquired if the tablings in September and October were the request of the residents or the applicant; with Mr. Au responding he does not recall; he knows it was tabled in November because more dialogue was needed; and per his recollection, tonight would have been the fifth tabling.  Mr. Au stated he finds it interesting that the developer only gave the homeowners a Binding Development Plan on January 30, 2008; some of the comments Mr. Levy is making tonight are not contained in that  written  document; stated he  asked Mr. Levy  for a site plan and he would not provide one; and the homeowners would need time to look at what has been written down and also to get residents comments.  He stated the residents met with Mr. Levy on December 12, 2008; the residents asked to improve the security; and the residents wanted the solid wall erected before any commercial development started.  He noted the second thing the residents wanted was a solid concrete wall so they could not view any commercial activities once they were established; and tonight has been the first acknowledgement that the developer will erect a concrete wall consistent with the current wall.  He stated there were also three limitations of usage that the residents asked for; elimination of fast food restaurants and drive thru windows; no dry cleaning process on the facility due to the hazardous chemicals; and the residents asked for an Independent Living Facility and not an Assisted Living Facility because it is a higher level of care.  He advised all of those concerns were unanimously voted on by the residents; he has been miffed as to why the developer has been unwilling to meet with him; stated he travels extensively internationally and he has offered to meet with Mr. Levy by teleconference, but Mr. Levy is unwilling to enter into a dialogue.  He noted Mr. Levy sent him a Binding Development Plan on  January 30, 2008, but it was in a format he could not open and there was no site plan; and the residents have not seen the Binding Development Plan Mr. Levy is presenting to the Board.  He noted the  January 30, 2008 Binding  Development Plan does  not specify the wall; it now permits an Assisted Living Facility; all restaurants are permitted, which the residents have unanimously voted against; and he is disappointed with the lack of dialogue in general.  He stated he was hoping to come to the meeting and be able to tell the Board there has been some progress; but that has not been the case.  He stated by the Board denying the item it will give Mr. Levy six months to get his plans formulated and get professional consultation.

 

Commissioner Bolin inquired what is the decision on the solid wall; with Dr. Levy responding he will build a solid wall.  Commissioner Bolin inquired if he has added the elimination of no fast food restaurants or drive-thrus; with Dr. Levy responding he has not because he had an interest from someone to be able to have a drive thru on a Starbucks.  Commissioner Bolin inquired if dry cleaning is in the Binding Development Plan as being prohibited; with Dr. Levy responding affirmatively.  Commissioner Bolin inquired of the decision on either an Independent Living Facility or an Assisted Living Facility; with Dr. Levy responding he would be happy to have an Independent Living Facility, but it is not allowed in the BU-1 zoning.  He noted Mr. Enos has indicated to him that he could support a change in allowing an Independent Living Facility in the BU-1 zoning; and he would add that to the Binding Development Plan if it were a permitted use, but he had to add it as an Assisted Living Facility. 

 

Commissioner Bolin advised she attended the meeting between the homeowners and the developer; she attended the meeting to observe; and she did not take an active part in the meeting.  She inquired if Mr. Enos could explain the compromise he had discussed with her.

Mr. Enos stated he and Commissioner Bolin had talked about the status of the negotiations and the fact that there has not yet been an agreement at this point; and that would leave the Board in the position of either approving or denying the application.  He stated he suggested to Commissioner Bolin that there may be a middle ground in which the Board could approve some part of the Wickham Road frontage as BU-1 since there is BU-1 on both sides of the property; but then the Board can also recognize there may be a compatibility issue moving further west and  approaching the residential  zoning  on the  west  end  of the property;  and  the Board may decide  the existing BU-1-A zoning is a better transition to the residential behind it.  He advised the Board has the option of splitting the zoning into BU-1 and BU-1-A.

 

Commissioner Bolin inquired if Dr. Levy would entertain a split zoning; with Dr. Levy responding he could work with a split zoning.  Dr. Levy stated he does not have a site plan for the Independent Living Facility, but he does not know how much depth is needed on the BU-1-A; and if he knew what the depth is he can tell the Board if it will work in BU-1-A.  Mr. Enos advised the lot depth of a typical BU-1-A property is a minimum of 75 feet by 100 feet; but any amount over 75 feet would be acceptable.

 

Mr. Au inquired if there would be some BU-1 frontage; with Mr. Enos responding, yes, the Board could approve BU-1 zoning to a certain depth and then leave the western most part of the property BU-1-A; and that depth can be any amount as long as there is at least 75 feet of BU-1-A because that is the minimum lot width of BU-1-A, but it could be more.  Mr. Au stated the homeowners wanted a Binding Development Plan because it limited the usage; and he is concerned about giving Dr. Levy free reign on any part of the parcel.  He stated he has always felt that  residents need to be  part  of  the dialogue;  and the  developer  has  done  nothing  but constrain that debate.  He stated in his opinion he does not think the Board should consider the split zoning.

 

Commissioner Colon stated her concern is that there should not be any negotiating when something comes before the Board; when an applicant is trying to present something to the Board that the constituents have not seen until the last minute, there is going to be something that has been missed; and there have been plenty of meetings where dialogue could have happened.  She stated there is no way she would approve anything today other than denying the item; and if Dr. Levy feels he wants to do a project in the future he can come back in six months and make sure he brings something clean to the Board that is very specific. 

 

Mike Richards stated he would like it on record that at the previous meetings, it was not the homeowners who requested tabling of the item, as it was the developer who requested the tabling; and unfortunately the residents have a credibility problem with the developer, and he would like the Board do deny the request for zoning.

 

Lynn Au stated she also hopes the Board denies the request; and it is not right for the developer to come before the Board at the last minute with a new plan without meeting with the homeowners.  She stated there is an annual homeowners meeting next week; and if Dr. Levy can communicate with the homeowners and get an appropriate plan going, then perhaps some agreement can be reached six months down the road. 

 

Shelley Donovan stated she also would urge the Board to deny the rezoning; the homeowners have been frustrated; animosity is starting to form; and it is not a good environment to be in.

 

Ed Hecker stated tonight the homeowners have gotten an agreement from Dr. Levy for a solid wall, but a light at the second entrance for safety was taken away; and there is a lack of trust because of the late notice of things.  He stated the homeowners are reasonable, but no one benefits if the property values go down; and everyone benefits by working together. 

 

Dr. Levy stated he would beg the Board to ask any of the homeowners how the development of a property 500 feet to the north has any affect on them; and he does not think the homeowners present tonight represent the entire community.  He stated previously there was a vote by the homeowners on the different issues; those votes on a Binding Development Plan were 33 or 34 in favor of the BDP and 14 or 15 against; and those votes are on record with the County. 

 

Commissioner Nelson stated to him, the issue began in September 2006 when the property was rezoned the first time; and in a period of 18 months, this issue has bounced around and he does not think Dr. Levy is ready to know what he is going to do; and he is not going to support continuing the item this evening. 

 

Commissioner Voltz stated she would suggest that Dr. Levy withdraw his application rather than have it tabled as that would give him an opportunity to start all over again.  Chairman Scarborough stated he agrees with Commissioner Voltz; and rather than a motion for denial, Dr. Levy can withdraw his application.  She noted there is no waiting period to reapply; and Dr. Levy has a lot of work to do with the residents.

 

Commissioner Colon clarified that if the Board denies Dr. Levy’s application he has to wait six months before he can reapply; but if Dr. Levy withdraws his application, there is not a waiting period.  Commissioner Voltz stated it will probably take longer than six months for Dr. Levy to get things squared away with the homeowners.

 

Dr. Levy stated he will withdraw his application.

 

Mr. Au stated he would like to urge the Board to put something in a vote so that it is recorded, instead of a simple withdraw.  Assistant County Attorney Christine Lepore stated there is nothing for the Board to vote on; however, all the discussion at the various meetings are in the public record.

 

Ms. Au inquired how the homeowners will know if Dr. Levy has filed another application for rezoning; with Mr. Enos responding it would be a new application with the same type of notification as the first application. 

 

 

 

Item VI.B.5. (0712201) Robert Dean Straney’s request for a change from RU-1-9 to RP on 0.48 acre, located on the northwest corner of Tennessee Avenue and Warner Way, which was recommended for denial by the Planning and Zoning Board.

 

Bob Straney stated his fiancé, Heather, has been working as a surgical technologist at Cape Canaveral Hospital for the past five years; he has been working at the Kennedy Space Center for almost 17 years; he is currently an aerospace inspector for United Space Alliance in the Shuttle Program; and as the Board knows, in 2010 the Shuttle Program will cease to exist and there is a possibility he will be without a job.  He stated he has two years to come up with an alternate plan for employment; and he and his fiancé would like to open a Learning Center at his property.  He stated the subject property is no longer a neighborhood atmosphere; it is a relatively high traffic area with people using three streets to access all the surrounding businesses, as well as a short cut to Courtenay Parkway and Merritt Avenue.  He stated the Board has already granted RP zoning to another applicant on his street, as well as another applicant around the corner; and the RP zoning is compatible with the Future Land Use Neighborhood Commercial as assigned by Brevard County.  He noted there are numerous schools throughout Brevard County with Learning Centers adjacent to them; his learning center will be located directly across from Edgewood Junior/Senior High School, which is one of the best schools in Brevard County; and the Learning Center would provide an added convenience for families with multiple children.  He stated the Learning Center will give parents peace of mind by providing families with a safe, loving, and nurturing environment for their children, while at the same time preparing them for elementary school.

 

Commissioner Nelson inquired if Mr. Straney informed the Planning and Zoning Board that he wanted  to open  a Learning  Center; with Mr. Straney  responding there is not much that can be done in the RP zoning classification;  and he  indicated to the  Planning and Zoning Board  that  he would  like to possibly have a Learning Center, as well as the possibility for a Guide business.  Commissioner Nelson stated what may have frightened the Planning and Zoning Board was that Mr. Straney was not sure what he wanted; and once the Board grants the rezoning the other uses are available, and some of them may not be acceptable adjacent to the high school.  Commissioner Nelson inquired if Mr. Straney is willing to enter into a Binding Development Plan to limit the use to a Learning Center; with Mr. Straney responding affirmatively.  Commissioner Nelson stated the other business on Tennessee Avenue has limitations on the hours of operations, which are 8:00 a.m. to 5:00 p.m.; and inquired how late Mr. Straney would need the hours at a Learning Center; with Mr. Straney responding there are late activities at the high school all the time; and inquired why he would need to limit his hours.  Chairman Scarborough replied the other RP property on Tennessee Avenue agreed to limitations on hours for its business.  He stated the problem is that each application gets broader; and if the Board gets too broad with one application it cannot say no to the next application. 

 

Heather Boehm inquired if the hours could vary; with Commissioner Nelson inquiring how late is late.  Ms. Boehm replied she was thinking of being open a little later in order for parents to be able to go shopping, and she was thinking of 8:00 p.m.  Commissioner Nelson inquired if 9:00 p.m. would be suitable; with Ms. Boehm responding affirmatively.  Commissioner Nelson inquired if the use would be strictly a Learning Center; with Ms. Boehm responding affirmatively, and maybe a respite night once in a while from 8:00 to 10:00 so parents can go to a dinner and a movie.  Commissioner Nelson stated the Board would like the closing time to be 9:00 p.m. 

 

Commissioner Colon stated Commissioner Nelson wants to be specific because sometimes people have to sell their property and the new owner would have to follow whatever Mr. Straney is restricted to today; and that is to protect the atmosphere of the neighborhood.  Mr. Straney stated he feels 9:00 p.m. is very generous. 

 

Commissioner Nelson inquired what the beginning time is for the Learning Center; with Ms. Boehm responding 6:00 a.m.  Commissioner Nelson stated the hours of 6:00 a.m. to 9:00 p.m. is acceptable. 

 

Mr. Enos stated a Learning Center is not a daycare center; a Learning Center is a place for tutoring; and there are limitations in the Code on the student-teacher ratio being no more than three students per teacher; and there are limitations on the total number of students based on the size of the site. 

 

Commissioner Nelson stated a Learning Center is for educational activities and not a daycare.  Mr. Straney stated he has seen places that were a Learning Center and Daycare combined.  Chairman Scarborough stated the Board should table the item to make sure Mr. Straney gets what he wants.

 

Motion by Commissioner Nelson, seconded by Commissioner Voltz, to table Item VI.B.5. to the March 6, 2008 Zoning meeting.  Motion carried and ordered unanimously.

 

Chairman Scarborough stated in looking at a zoning map, he has no way to tell which properties have a BDP on them; and inquired if there is a way to use a different font on the maps to determine where the BDP’s are located.  Mr. Enos replied that is something the Planning and Zoning Office is working on with its GIS system and it will be happening in the next six months or so.

 

 

Item VI.B.10. (Z0711401) E. Michael and Leslie C. Malone’s request for a Small Scale Plan Amendment (07S.19) to change the Future Land Use designation from Neighborhood Commercial to Community Commercial, and a change from RU1-1-13 to BU-1 on .72 acre, located west of U.S.1, north of Allen Hill Avenue, which was recommended for approval by the Local Planning Agency and the Planning and Zoning Board.

 

Motion by Commissioner Bolin, seconded by Commissioner Voltz, to approve Item VI.B.10., as recommended by the Local Planning Agency and the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

Upon motion and vote, the meeting adjourned at 7:54 p.m.

 

 

 

 

 

ATTEST:                                                                     _________________________________

                                                                                    TRUMAN SCARBOROUGH, CHAIRMAN

                                                                                    BOARD OF COUNTY COMMISSIONERS

                                                                                    BREVARD COUNTY, FLORIDA

_____________________

SCOTT ELLIS, CLERK

         

          (S E A L)