August 1, 2002

The Board of County Commissioners of Brevard County, Florida, met in regular session on August 1, 2002, at 5:34 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Truman Scarborough, Commissioners Randy O’Brien, Nancy Higgs, Susan Carlson, and Jackie Colon, Assistant County Manager Stephen Peffer, and Assistant County Attorney Eden Bentley.

The Invocation was given by Chairman Truman Scarborough.

Commissioner Jackie Colon led the assembly in the Pledge of Allegiance.

RATIFICATION, RE: MIORELLI SETTLEMENT

Assistant County Attorney Eden Bentley requested the Board ratify the Miorelli settlement at $500,000.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to ratify the Miorelli settlement at $500,000. Motion carried and ordered unanimously.

APPROVAL, RE: RENEWAL OF OFF-ROAD DUMP TRUCKS FOR CONSTRUCTION OF
CHAIN OF LAKES STORMWATER FACILITY

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to approve the rental of two (2) heavy-duty 25-ton off-road dump trucks to be used in the construction of the Chain-of-Lakes stormwater facility. Motion carried and ordered unanimously.

APPROVAL, RE: TEMPORARY BUDGET TRANSFER TO PURCHASE MEDIA FOR NEW
MELBOURNE BEACH LIBRARY

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to approve a temporary budget transfer of $145,625 to allow purchase of media for the new Melbourne Beach Library. Motion carried and ordered unanimously.

PERMISSION TO CHANGE ORDER OF AGENDA

Commissioner Colon requested the District 5 items be taken first.

Motion by Commissioner Colon, seconded by Commissioner O'Brien, to take the District 5 zoning items first. Motion carried and ordered unanimously. Chairman Scarborough stated Commissioner Colon has indicated she is not going to be here later, but would like to be present when her items are heard; so, this evening District 5's items will be taken first.

PUBLIC HEARING, RE: ITEMS FROM APRIL 8 AND JULY 8, 2002 PLANNING AND
ZONING MEETINGS AND JULY 8, 2002 NORTH MERRITT ISLAND DEPENDENT
SPECIAL DISTRICT BOARD MEETING

Chairman Scarborough called for the public hearing to consider recommendations of the Planning and Zoning Board made at its April 8 and July 8, 2002 meetings, and the recommendation of the North Merritt Island Dependent Special District Board made at its meeting of July 8, 2002, as follows:

Zoning Official Rick Enos advised Items II.B.7, II.B.14, and II.B.17 have requested tabling prior to the seven-day automatic tabling time period; and requests have been received to table Items II.A.1 and II.D.1. Commissioner O'Brien inquired if that is the North Merritt Island item; with Mr. Enos responding yes, that is Item II.D.1.

Chairman Scarborough inquired if there are persons present with interests in Items II.A.1, Statewide Materials, Inc. and II.D.1, Air Liquide America Corporation; and heard no response.

Item 1. (Z0204104) Statewide Materials, Inc.'s request for a CUP for Land Alteration in an IU zone on 12.28± acres located north of Golden Knights Boulevard, east of Tico Road, which was recommended for approval by the P&Z Board as an expansion of the existing borrow pit.

Motion by Commissioner O'Brien, seconded by Commissioner Higgs, to table Item 1 to September 5, 2002 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item 7. (Z0207104) Beeline Petro, Inc.'s request for a CUP for a Convenience Store with Gasoline Sales in a BU-1-A zone, removing the existing CUP for a Convenience Store on 2.066 acres located on the northeast corner of SR 520 and Satellite Boulevard, which was recommended by the P&Z Board to be tabled to the September 9, 2002 P&Z meeting and the October 3, 2002 Board of County Commissioners meeting.

Motion by Commissioner O'Brien, seconded by Commissioner Higgs, to table Item 7 to September 9, 2002 P&Z meeting and October 3, 2002 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item 14. (Z0207203) George W. and Stella M. Lewis and Irving A. and Alice S. Bubek and Panorama Mobile Home Park Inc.'s request for change from BU-1 with a BCP and CUPs for Professional Offices and a Sewer Facility and RU-1-11 to RU-2-15, removing the existing BCP and two CUP's on 9.21± acres located on the east side of South Tropical Trail; which was sent forward with no recommendation by the P&Z Board. Motion by Commissioner O'Brien, seconded by Commissioner Higgs, to table Item 14 to September 5, 2002 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item 17. (Z0207303) Stanley Zaleski, Evelyn Kerr and Evelyn Zaleski's request for change from AU and RRMH-1 to all AU on 6.272 acres located on both sides of US 1, which was recommended to be tabled to the August 5, 2002 P&Z meeting and September 5, 2002 Board of County Commissioners meeting.

Motion by Commissioner O'Brien, seconded by Commissioner Higgs, to table Item 17 to August 5, 2002 P&Z meeting and September 5, 2002 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item 1. (NMI20701) Air Liquide America Corporation's request for Small Scale Plan Amendment to change from Planned Industrial to Heavy/Light Industrial and from IU to IU-1 on 9.87± acres located on the north side of S.R. 3, which was recommended by the LPA for approval of the Small Scale Plan Amendment and sent with no recommendation from the North Merritt Island Dependent Special District Board.

Motion by Commissioner O'Brien, seconded by Commissioner Higgs, to table Item 1 to the September 5, 2002 Board of County Commissioners meeting. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: PLANNING AND ZONING RECOMMENDATIONS OF JULY 8, 2002

Chairman Scarborough called for the public hearing to consider the recommendations of the Planning and Zoning Board made at its July 8, 2002 meeting, as follows:

Item 1. (Z0207501) Vistar's Realty, Inc.'s request for change from BU-1-A to RU-1-9, removing the existing BSP on 0.269 acre located on the northeast corner of Coconut Drive and Neptune Road, which was recommended by approval by the P&Z Board.

Commissioner Colon requested feedback from staff, particularly from the Office of Natural Resources Management. Zoning Official Rick Enos stated this is a downzoning from BU-1-A to RU-1-9; it is a single-family house on a single-family lot; and Natural Resources indicates there may be aquifer recharge soils on the site, so post development recharge volumes must equal or exceed pre-development recharge volumes. He stated the property also may provide habitat for scrub jays and gopher tortoises; and consultations with the U.S. Fish and Wildlife Service and the Florida Fish and Wildlife Conservation Commission are required prior to development of the property.

Commissioner Colon inquired what will be on the property, and how will the applicant address the concerns of the Natural Resources Management Office.

Attorney David Larkin, representing the applicant, stated they intend to build a single-family residential home on the property, and will comply with any of the requirements of the Office of Natural Resources Management, St. Johns River Water Management District, and others; and those have been placed as contingencies on any development of the property. He stated they will address the issues in the development plan, but do not plan to use the property for more than a single-family structure.

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

Item 2. (Z0207502) Otis P. and Linda A. Lutz and Michael A. and Katrina D. Sanchez's request for a Small Scale Plan Amendment (02S.7) to change from Neighborhood Commercial to Community Commercial, and change zoning from AU to BU-1 on 9.5± acres located on the west side of Minton Road, which was recommended for approval by the Local Planning Agency and P&Z Board as BU-1 with a Binding Development Plan limiting use to a pet store only on that portion of the property containing the existing building and the area required for the parking lot, which is to be determined by staff and the applicant, and contingent upon site plan approval.

Attorney Clifton McClelland, representing the applicants, stated the property is unique with respect to what has happened to it in the past; the Lutz's reside on Minton Road, and have for 30 years; they have their home and another residence adjacent to Minton Road, where their daughter lived previously, but which is currently rental property; and behind their daughter's prior house is another building referred to as the barn, where square dances and other dancing activities have been held. He stated this was a rural residential setting; but in 1992, the County took enough property to six-lane Minton Road, and moved the right-of-way to within 25 feet of this property. He stated Chairman Scarborough is familiar with the Jack Hurt landfill controversy, in which the County was involved in the late 1980's and early 1990's; and advised he submitted a settlement of the controversy, which resulted in a large mound over 30 feet high being left behind the Lutz property. He stated the Lutz's have the privilege of having both the regional corridor for Florida Power and Light and Florida Gas Company located on the southern boundary of their property; so they have a road that is going to be six-laned, the old landfill behind them, and to the south the regional utility corridors. He stated they would like to rent the barn out for use as a pet store; and in order to do that under current regulations, they need the BU-1 zoning designation and a change to the Comprehensive Plan.

Rochelle Lawandales, submitted documents, and stated one is a miniature version of the plan that Mr. McClelland was speaking about; the second is a color map showing the location of the subject property and surrounding properties; the third identifies from the actual survey of the property the land area for which they are seeking the BU-1 District; and pointed out the area on the map. She stated the area along Minton Road has seen a lot of changes over the last few years, particularly since the widening of the roadway; this property is within approximately 1,200 feet of the Palm Bay Road intersection and the commercial node; and advised the lands along Minton Road that have been changed to commercial use are highlighted in yellow and the land shown in red is the subject property. She stated the pictures depict the Minton Road Corridor, showing the subject property as well as some of the surrounding area and the commercial conversions that have taken place. She stated the request is to allow a pet store in a BU-1 zone; a pet store would be consistent and compatible with some of the other uses along the corridor; there is a 160-foot designated easement that separates the subject lands and uses from surrounding neighbors; and with that buffer, there would be no impacts from the use of the land as a pet shop. She stated the P&Z recommended approval of this with certain stipulations to which the applicant agreed; and those include use of the property would be limited solely to a pet store; and the residence in front that is current rental would remain as a single-family residence, which is a permitted use in BU-1, and could not be converted to any other use without Board approval. She stated the only portion of the lands owned by the Lutz's that would be designated for commercial would be approximately 3.9 acres, 379 feet deep by 435 feet wide; the owner agrees to maintain the barn as a barn, with the only changes or modifications to the structure to be internal or repair or maintenance items; and the architectural integrity of the barn to be preserved. She stated the owner would, without objection, allow the County to administratively, if desired, revert the lands to BU-1-A and neighborhood commercial in the event the Land Development Code is changed to allow pet shops within a BU-1-A classification. She stated currently BU-1-A and RP classifications do not allow for a pet shop, although BU-1-A allows for grooming types of facilities; so they are requesting the commercial land use and BU-1 classification. She stated the property fronts a road that is carrying between 30,000 and 40,000 cars per day; the quality of life for residences and residential uses directly fronting the roadway is compromised; therefore, from a planning standpoint, there is a solid purpose in looking at some changes to the land use pattern along the Minton Road corridor; and requested the Board's favorable consideration.

Attorney McClelland stated this is time sensitive as there is a lease.

Otis Lutz requested favorable consideration of the requested change.

Dan Van Slyke stated they do not object to this being zoned for a pet shop; but requested the Board consider amending the BU-1-A classification to accept a pet store to allow the property to remain in neighborhood commercial rather than community commercial, which would change the land use plan in the future. He stated the property that runs in front of the house is 435 feet along Minton Road; when it was originally discussed at the P&Z meeting, the applicant only requested 160 feet of BU-1 zoning on Minton Road; and requested it be added to the stipulations that the property around the rental residence remain AU or RP and not be included in the pet shop zoning. He requested the Board consider going with the BU-1-A zoning, and amend BU-1-A to include the pet shop, with some stipulations such as no outside runs or storage.

Chairman Scarborough inquired if Mr. Van Slyke got a copy of the binding development agreement; with Mr. Van Slyke responding yes.

Attorney McClelland stated the applicant would agree to a reduction of the frontage on Minton Road; however, the planners have some professional reservations about that; and that is the reason they included the language that the frontage would remain in the BU-1 zoning; but the applicant is willing to do whatever the Board would like. Mr. Enos stated normally the concern about commercial frontage is limiting the depth; he has never seen commercial behind residential in a corridor like this; and another problem is if the front lot were to be split out as a residential lot, it is not big enough for the AU zoning classification, and would have to be changed to some other residential classification, which would require readvertising. He stated the simplest solution is to zone the full 379 feet commercial and rely on the binding development plan to control the uses.

Commissioner O'Brien inquired if it is correct that if it was split, it would have to be advertised; with Mr. Enos responding yes, because the house piece would not be big enough for AU zoning, which requires 2.5 acres. Commissioner Higgs inquired what about RP; with Mr. Enos responding that would be fine. Commissioner Higgs stated that would not require readvertising, if that was what the Board wanted. Commissioner O'Brien stated the Board allows residential in BU-1; with Mr. Enos agreeing that is correct. Commissioner O'Brien inquired if the whole thing is BU-1 with the binding agreement that says the house will remain a house and the pet shop will be a pet shop only, why go through hoops of putting in a different zoning for the house, the business, etc.

Commissioner Higgs stated she met with all the people who spoke tonight, and has a summary of the conversations; and everything in those conversations has been presented tonight. She expressed concern about the depth of community commercial on Minton Road and the precedent that it would set for the area; and stated the binding development plan suggests the Board come back to look at the appropriateness of BU-1-A for a pet store with conditions; but she is not ready to vote except on a temporary basis to establish the precedent of commercial going back 379 feet on Minton Road. She noted the County does not even have 379 feet on US 192. She stated if there was a binding development plan and the Board looked to the future and the amendment, she could consider it, but she is very concerned about the establishment of a precedent on the depth.

Commissioner O'Brien stated the plan says the use of the property under BU-1 will be limited to pet shop only; and the plan also says a single-family residence located on Minton Road will remain a residence and cannot be converted to commercial use without prior approval of the Board.

Commissioner Colon stated this would be BU-1 for just two months, and in the two months, the Board would go through the whole procedure of advertising to make sure BU-1-A can have a pet shop. Mr. Enos stated if the Board were to approve the BU-1 zoning, it would allow the tenant to occupy the building upon recording of the binding development plan; that would give time for the Board to direct staff to initiate a Code amendment, and concurrently or shortly after initiate administrative rezoning to BU-1-A and back to neighborhood commercial; so it is a little extra effort, but it gets the tenant in the building quicker.

Commissioner Colon stated that was the stipulation to insure the protection of the integrity of the community; the residents share the same concern as Commissioner Higgs expressed; and this would be a protection for the community while allowing the applicant to move forward. She advised this was a creative suggestion from staff to allow both things to be accomplished.

Commissioner O'Brien stated that is in the plan under paragraph 5; and it says, the developer shall allow, without objection, Brevard County to administratively change the commercial and land use classification to BU-1-A upon inclusion of pet shops on the list of the BU-1-A.

Motion by Commissioner Colon, seconded by Commissioner O'Brien, to approve Item 2 as recommended by the P&Z Board and LPA; and adopt Ordinance amending Article III, Chapter 62, of the Code of Ordinances of Brevard County, entitled "The 1988 Comprehensive Plan", setting forth the Seventh Small Scale Plan Amendment of 2002, 02S.7, to the Future Land Use Map of the Comprehensive Plan; amending Section 62-501 entitled contents of the Plan; specifically amending Section 62-501, Part XVI(E), entitled the future land use map appendix; and provisions which require amendment to maintain internal consistency with these amendments; providing legal status; providing a severability clause; and providing an effective date. Motion carried and ordered unanimously. (See page for Ordinance No. 02-36.)

Mr. Enos requested striking the second sentence from 7B in the binding development plan that refers to the option of leaving the house residentially zoned. Chairman Scarborough inquired if a motion is needed; with Mr. Enos responding no.

Item 3. (Z0207503) Deer Park Ranch, Ltd.'s request for CUP for Land Alteration in an AGR zone retaining the existing CUP for a Tower on 10.74 acres located on the south side of US 192, which was recommended for approval by the P&Z Board with the understanding that the required 50-foot setback from property line does not apply.

Commissioner Carlson inquired if the proposed zoning is for land alteration only; with Mr. Enos responding yes.

Motion by Commissioner Colon, seconded by Commissioner O'Brien, to approve Item 3 as recommended by the P&Z Board. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: TABLED ITEM OF MAY 6, 2002 PLANNING AND ZONING
HEARING

Commissioner Scarborough called for the public hearing to consider the tabled item of the May 6, 2002 Planning and Zoning meeting, as follows:

Item 2. (Z0205401) Dianne M. Cullen and Desiree M. Webber's request for Small Scale Plan Amendment (02S.5) to change from Neighborhood Commercial to Community Commercial, and change zoning from GU to BU-2 on 1.97 acres located on the south side of Freeman Lane, which was recommended for approval by the P&Z Board and the Local Planning Agency.

Commissioner Carlson stated Ms. Webber and Ms. Cullen came forward at the last zoning meeting to pursue BU-2 zoning in an area that appeared to be compatible; she has been in discussion with various people in the area, including Mr. Stephens and Mr. Johnson; Mr. Johnson's property is currently zoned GU; and Mr. Stephens is on hold for a building permit. She stated the discussion ensued on what could be done with a binding development plan to make all parties happy; Animal Services inspected the area, and had some health issues; and some of those things have to be remedied. She stated Mr. Stephens would have liked the dogs to be behind the house because of noise factors; the issue came up concerning dogs getting loose and how to identify fencing that will guarantee the dogs will stay on the property, if the Board allows the BU-2 zoning; and those issues will require additional time to look into. She stated they looked at the possibility of keeping residential zoning and making part BU-2; but it would not work out as well for Ms. Webber; and it would be better to do BU-2 with a binding development plan. She stated they need to develop the binding development plan more and come to some agreement by all parties; there was a lot of support for Ms. Webber's establishment last time; but it is also necessary to consider the property rights of those who surround her. She stated in order to get animal licensing, Ms. Webber needs the proper zoning; she has a certain number of animals on the property; and the Board needs to determine the number of animals that should be on the property. She inquired if there is no limitation on animals in BU-2; with Mr. Enos responding there is no limitation in the Zoning Code. Commissioner Carlson stated in BU-2 it is possible to put a pet kennel; Ms. Webber has pens that are fenced in so that the dogs can be let out in different penned area; and unfortunately there are accounts of animals getting out, so she needs more time to develop the binding development plan to make sure the facility would be secure and that some of the issues that have been brought up have been resolved.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to table Item 2 to September 5, 2002 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Chairman Scarborough inquired if anyone is present on this item who will be unable to attend on September 5, 2002; and no response was heard.

Commissioner O'Brien stated this is an example where a new approach is needed rather than people having to go through all kinds of hoops and changing the zoning to make it all fit; the County still does not have a special conditional use permit such as the City of Cape Canaveral does; and in Cape Canaveral such permit is issued to the occupant of a building, and if the occupant moves out, the special use permit is dead, so the zoning is not permanent. He stated the Board should have the ability to grant a special conditional use permit.

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to direct staff to provide a report on the methodology used by the City of Cape Canaveral whereby a special use permit is issued only to an occupant, not the property and once the occupant is gone, the special use permit is terminated. Motion carried and ordered unanimously.

Item 5. (Z0207102) Frank A. and Cynthia L. Borkowski's request for change from AU to RRMH-1 on 1.15 acres located on the east side of Weatherly Place, which was recommended for approval by the P&Z Board.

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

Item 6. (Z0207103) Bruce R. and Glenda M. Terwilliger's request for change from GU to AU on 1.16 acres located on the northeast corner of Alan Shepard Avenue and Bayfield Street, which was recommended for approval by the P&Z Board.

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to approve Item 6 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 8. (Z0207105) Richard A. Thomson, Alan Thomson and I. Centi Thomson, as Trustees' request for a change from GU to AU on 5.95 acres located on the west side of Osprey Avenue, which was recommended for approval by the P&Z Board.

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to approve Item 8 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 9. (Z0207106) Dwayne White's request for change from AU to RR-1 on 2.65 acres located on the west side of US 1, which was recommended for approval by the P&Z Board.

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

Item 10. (Z0207107) H. Dayton and Theresa K. Rumbough's request for change from GU to AU on 4.54 acres located on the northwest corner of Areca Palm Street and Fan Palm Avenue, which was recommended for approval by the P&Z Board.

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to approve Item 10 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 11. (Z0207108) Brevard Hotel Associates LLC's request for a CUP for Alcoholic Beverages for On-Premises Consumption (Beer and Wine) in a TU-2 zone on 5 acres located on the northwest side of SR 524, which was recommended by the P&Z Board for approval accessory to food sales.

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to approve Item 11 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 4. (Z0207101) Rudolph and Emma Lee Berry's request for change from RU-1-7 to TR-1 on 0.287 acre located on the west side of Bethune Avenue, which was recommended for denial by the P&Z Board.

Chairman Scarborough inquired if applicants Rudolph or Emma Lee Berry are present.

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

Item 12. (Z0207201) Christy's Pizzeria, Inc.'s request for a CUP for Alcoholic Beverages for On-Premises Consumption in a BU-1 zone on 0.62 acre located on the east side of North Courtenay Parkway, which was recommended for approval for full liquor sales with a restaurant and no outside sales.

George Thomas stated the request is for a full liquor license for a restaurant that is open now; the reason for the rezoning is the building was closed for six months; and that is why the rezoning is required.

David Walter, representing Christy's Pizzeria that owns the property, stated alcoholic beverages have been served there for approximately 35 years with no problem; and the bowling alley and Texaco Station have beverage licenses. He stated the applicant runs a first class restaurant operation; and they need their beverage license to be successful.

Commissioner Colon inquired if the sales were hard liquor or just beer and wine; with Mr. Walter responding beer and wine.

Commissioner Higgs stated there was some discussion in the minutes of the P&Z meeting that beer and wine would be adequate as opposed to a full liquor license. Mr. Walter stated he has 31 years experience in the restaurant business; with pizza, he needed beer and wine; but with the current operation it would be helpful to be able to serve mixed cocktails.

Commissioner Higgs inquired if it is no longer Christy's; with Mr. Walter responding it is Aroma Gardens, and he is the landlord. Chairman Scarborough inquired if it is necessary to serve more than beer and wine at the restaurant; with Mr. Thomas responding they are in a stretch of fine dining restaurants; they all serve alcoholic beverages; and he would like to be able to do that for his customers. He advised the restaurant serves conferences which take the whole restaurant. Chairman Scarborough requested Mr. Thomas describe the restaurant. Mr. Thomas responded it is approximately 3,200 square feet; they are only using 65 seats although 100 are approved, because they are losing business due to the lack of alcohol; and it would be appropriate to be able to sell alcohol.

Commissioner O'Brien inquired how many seats are there; with Mr. Thomas responding 100 have been allowed by the Fire Department, but they are using only 65 because of the slack in the business.

Commissioner Higgs inquired if this is a full-service restaurant; with Mr. Thomas responding yes, it is fine dining. Commissioner Higgs inquired if it is currently open; with Mr. Thomas responding affirmatively. Commissioner Higgs stated Mr. Thomas could make a commitment, if the Board would want to consider it, that the full alcohol would only be as an accessory to the full dining. Chairman Scarborough stated that would mean there could be no bar set up separately from the restaurant, and no one could come in just to buy a drink and leave. Commissioner Carlson stated the Board has limited it to a restaurant only. Mr. Thomas stated it will be operated only as a restaurant. Commissioner O'Brien inquired if Mr. Thomas wants a free-standing bar; with Mr. Thomas responding that is not his plan. Commissioner Higgs stated there have been instances where the conditional use permit has been accessory to a full restaurant. Commissioner O'Brien inquired how is a full restaurant defined. Chairman Scarborough stated there are places where someone can go into the bar or go into the restaurant; and Commissioner Higgs is saying they should only be able to get served alcohol if they are dining there. Mr. Thomas stated this permit will not be for a bar by itself, but will just be for dining customers.

Commissioner Colon inquired what would prevent them from turning the facility into a nightclub if they have full alcohol. Mr. Enos responded the facility would have to serve food and have a full menu; permit would require at least 50% of the sales to be food sales; and the County would depend on the State license type. Commissioner Colon stated when Mr. Thomas leased the property he knew it was just beer and wine. Mr. Thomas stated they thought the beer and wine was in effect; but when they went for the license, they were told to go for the zoning because there had been a six-month gap; and with no alcohol, business has gone down.

Commissioner O'Brien requested Mr. Enos clarify about the business being closed for six months. Mr. Enos stated the previous business operated for many years under a State license was a nonconforming use from the County's zoning standpoint; the nonconforming use can continue to operate, but any time the use stops for six months or more, the nonconforming use expires; and that is what happened in this case. Commissioner O'Brien inquired if there is not also a rule that requires a minimum of 200 seats to get the license; with Mr. Enos responding he is not that familiar with the State rules.

Jim Mundhenk stated he is opposed to the liquor license; there is a bar within 100 yards at the bowling alley; the Texaco Station sells beer and wine, but it is not consumed on premises; and the business is only 475 feet from the United Methodist Church property, which has a pre-school building. He stated the Commissioners should have received an email from the Homeowners Association, which has gone on record to oppose the granting of the full liquor license, although there is no objection to beer and wine going along with the regular meal. He stated there are a lot of good restaurants that do not serve alcohol other than beer and wine, so it should not be a problem.

Commissioner O'Brien stated they would not have a free-standing bar; and inquired if Mr. Mundhenk would object to someone having a drink with dinner. Mr. Mundhenk stated they can get the drink, and walk about before eating; they do not have to buy food; and people get around those rules. Commissioner O'Brien stated the restaurant does not have any intention of letting people come in and drink until they are drunk; and the Board can stipulate that if they have not bought a meal, they will not be able to buy alcohol. He compared it with Mr. Ni's and Carrabas. Mr. Mundhenk stated he does not see why alcohol is so important; he agrees with beer and wine; but full liquor is another territory which does not have anything to do with food.

Frank Coppedge stated he is within 500 feet of the business; and he hopes that the Board read the minutes of the zoning meeting and the emails that were sent recently. He advised of several statements made by George Thomas at the zoning meeting indicating he would not be opening a bar, but a restaurant serving liquor to dining customers, and that beer and wine would be all right with them. He stated the Chairman of the Zoning Board, Aneta Ott, indicated she hoped the first motion would fail and that a motion would be made to approve hard liquor. He stated two voted for the hard liquor, four voted against it; and after Ms. Ott's motion was made, the vote was 6 to 4 in favor of her motion. He stated he is speaking for himself and his neighbors; and he is not a designated speaker for Grace Methodist Church, but is interested in this not being added on; and requested hard liquor not be approved. He stated a drink consists of 12 ounces of beer, five ounces of wine, or 1.5 ounces of 80 proof hard liquor.

Mike Jackson stated there are full-service bars in the area, but they have much larger seating capacities, and are offset from the roads enough that children going through the area have less minimal chance of an incident or accident. He stated if the food is good, people will be there whether there is a full-service bar or not; it is in the middle of residential area; and it is a bad situation waiting to happen.

George Thomas stated he is very concerned about school children; and the hours of operation will start stop at 2:30 p.m. and open at 5:00 p.m. He stated he does not want to close his business; and if he cannot get a full liquor license, his next option is to try to get wine and beer.

Mr. Walter stated he was previously the president of the Florida Restaurant Association; and he is very familiar with different restaurant operations. He stated with Christy's the beer and wine were probably more of a problem with the young people because the 21-year old who could legally drink was a good part of the customers; but the customers of Aroma Gardens are more mature, and young people do not want to spend that kind of money for fine dining. He stated the lease states they will run a restaurant; he had a chance to rent to a bar, but told them he was not interested because the neighborhood is not right for a bar; and the lease indicates it must be a restaurant operation. He commented on equivalent amounts of beer, wine, and hard liquor.

Commissioner Colon stated she will not support full liquor; but could support just beer and wine.

Commissioner Higgs stated she received the emails as well as a call from Mr. Parker expressing concern about full alcohol.

Commissioner O'Brien stated the flip side is it is next to a bowling alley that has a full-service bar; across the street is the old Publix that is now a Chinese buffet; the pool parlor has full service; and there is a restaurant between the two that also has full service. He commented on the distance to other restaurants that serve alcohol, hours of operation, and lease requiring it to be restaurant only. He stated he knows the neighbors feel strongly, but without the ability to serve alcohol, it would put the restaurant in a peculiar situation; all the other restaurants can serve alcohol; other establishments in the area have full liquor licenses; and he cannot find a good reason to only allow Mr. Thomas to have beer and wine because he has as much right to earn a living as anyone else. He stated if Mr. Thomas can only serve beer and wine, that may affect his business; he does not perceive this as a place people will go and get drunk; and to force Mr. Thomas to have less than the competition all around him would not be fair.

Motion by Commissioner O'Brien, to approve Item 12, with the stipulations that alcohol will only be served from 4:00 p.m. to 10:00 p.m., restaurant operation only, and no free-standing bar on premises. Motion died for lack of a second.

Commissioner Carlson inquired if it is possible to bind a lessor that way; with Attorney Bentley responding the owner, who is the landlord, is present. Attorney Bentley stated it can be done by a binding development plan, or since this is a conditional use permit, the Board can specify restrictions to mitigate the negative impacts. She stated if the Board feels restricting it to a restaurant only with sale of alcoholic beverages, it can do that; but if it wants a broader restriction that there will never be any other commercial use other than a restaurant, that would require a binding development plan.

Chairman Scarborough stated Mr. Walter said he ran a pizza place and beer and wine were what people wanted with pizza; and inquired what style of restaurant transitions to the concept that someone may want a mixed drink. He inquired what defines such a restaurant, and is it a restaurant with china and tablecloths or a certain price range. Mr. Walter stated Chairman Scarborough covered a lot of it; they do have tablecloths, china and silverware; the guest check average per dinner is upwards of $10, where with pizza it would be paper plates and a guest check of $5 or $6. He stated they are catering to someone who wants to sit down and dine rather than someone who wants to grab a hamburger and run out. Chairman Scarborough stated Mr. Thomas said he could live with beer and wine; and inquired what market will Mr. Thomas miss if he does not have full alcohol; with Mr. Walter responding when he served pizza and did not have beer, he lost as much as 25% of his business. Mr. Walter stated with fine dining, 15 to 20% of the people really want a cocktail; 20% is a big percentage of total revenue; rent on Courtenay is not cheap; and it will be tough for Mr. Thomas to make it without hard liquor, although beer and wine will help a lot. He noted at the Planning and Zoning meeting, they discussed that liquor is liquor, whether beer and wine or hard liquor.

Motion by Commissioner Colon, seconded by Commissioner Scarborough, to approve Item 12 limited to beer and wine.

Commissioner O'Brien stated the homeowners association said beer and wine only; but that would cut Mr. Thomas' business before he can really get started. He stated fine dining is needed in the area; a lot of the Courtenay area is run down; a restaurant has been there a long time; and the Board should not kick the applicant, but should give him a boost up. He noted the Board has allowed other bars to open within close proximity; and they have full liquor service even though they are not restaurants. He stated without the ability to serve alcohol, it will not be fine dining; it is not fair to Mr. Thomas; and if this was Applebees, the Board would be approving it, so the Board is not allowing a level playing field.

Chairman Scarborough called for a vote on the motion. Motion did not carry; Commissioners Scarborough and Colon voted aye; Commissioners O'Brien, Higgs, and Carlson voted nay.

Commissioner Higgs stated she would prefer to see the item tabled, and have a binding development plan to nail down all the aspects.

Motion by Commissioner O'Brien, seconded by Commissioner Higgs, to table Item 12 to the September 5, 2002 Board of County Commissioners meeting. Motion carried and ordered; Commissioner Colon voted nay.

The meeting recessed at 6:53 p.m. and reconvened at 7:19 p.m.

Commissioner Colon's absence was noted at this time.

Item 13. (Z020720) Malcolm R. Kirschenbaum, as Trustee's request for a Small Scale Plan Amendment (02S.6) to change from Neighborhood Commercial to Community Commercial, and from BU-1-A to BU-1, removing the existing BDP on 1.88 acres located on the west side of North Courtenay Parkway, which was recommended for approval by the Local Planning Agency and P&Z Board, excluding the south 130 feet as amended by the applicant.

Attorney Leonard Spielvogel, representing the owner of the parcel and the prospective purchaser Donald Price, stated the property is located on South Courtenay Parkway just south of Cone Road; those familiar with Merritt Island know where the 7-Eleven is on South Courtenay; and this parcel is immediately south of the 7-Eleven parcel. He stated the exhibit indicates the zoning surrounding the parcel; and pointed out the 7-Eleven that is BU-1, the strip center to the east that is also BU-1, AU to the west, and RU-1-9, single-family residential to the south. He stated this exhibit was presented at the Planning and Zoning meeting; in response to comments made by property owners, primarily to the south, whose homes share a common property line, he withdrew consideration of the south 130 feet, which would remain BU-1-A. He stated the client's interest is in building a car wash on the property and an office building; BU-1-A will support an office building, but will not permit a car wash; and leaving the BU-1-A portion will insulate the homeowners to the south. He stated the vote was favorable; but one of the comments made was an inquiry whether he had met with the homeowners. He advised he was engaged just shortly before the P&Z hearing; he did not have an opportunity to meet with the homeowners; and he arranged to meet with those to the south after the P&Z hearing. He stated they made a number of substantial changes in the presentation based on comments made at that meeting and the hearing; and submitted copies of the binding development plan to the Board, but not the Clerk.

Chairman Scarborough inquired if it is different from the one the Board received previously; with Mr. Spielvogel responding the one he just submitted was executed by his client. He stated Attorney Bentley had requested a change; she wanted a statement about encumbrance and such; and that is included in the document the Board has before it. He stated the binding development plan reflects the change made since the presentation before the P&Z Board; one of the concerns was opening another driveway, which they have the right to do because they have frontage on South Courtenay; but they have made an agreement for a permanent ingress/egress over the 7-Eleven site and will not open another driveway; and that is reflected in the BDP. He stated they have limited the number of hours; when he went before the P&Z Board, he was asked about limiting hours, but did not have the authority to discuss it; and in paragraph 4B, they have limited hours of operation from 7:00 a.m. to 10:00 p.m. during standard time, and from 7:00 a.m. to 11:00 p.m. during daylight savings time. He stated they are asking for BU-1, but are limiting the uses to car wash only; beyond that it is BU-1-A, which is what they presently have. He stated when the car wash closes for the night, they will close the entrance either by gate or chain so there will be no traffic allowed to enter the parcel; one of the concerns of the homeowners was that there were people congregating there and using it as a hangout; and that will be stopped. He stated they have also agreed to increase the setback along the common property line; whatever the setback is, they will increase it by 15 feet; and that is also in the binding development plan. He stated they will construct a six-foot wall along the common property line as required by Code; there is a third neighbor who is offsite the parcel; and they are going to put up a privacy fence for her benefit. He noted it has to be a fence because they do not own the property and cannot put up a wall there; and the resident seems happy with that. He stated they have relocated the office building at the request of Mr. McGraw; and that is evidenced in the binding development plan. He stated when he met with the homeowners, he made a commitment that once they started clearing, they would consult with the homeowners to the south to clear in a way that was acceptable to them; there are pepper trees in there that the County may require to be removed; but with the other trees and cover, they will work with the homeowners. He stated he gave them a separate letter signed by the purchaser making the commitment to meet with them and discuss their preferences for clearing. He reiterated there was a favorable recommendation from the P&Z Board and CRG; they are clustering at the intersection; and they are meeting the Comprehensive Plan requirements for doing that. He advised Barry Boyd is a consultant hired by the applicant; and he will address the issues of noise and the environment.

Barry Boyd stated his background is a degreed electrical engineer; and he has been doing this in excess of 27 years. He stated he represents several major manufacturers in the industry; and they have addressed the concerns that were presented as far as the noise levels. He stated he submitted charts to Mr. Spielvogel showing levels of comparison on noise; for the vacuum at a five-foot level, the dcb is at 69; in comparison heavy traffic is at 88; a telephone against one's ear is at a decibel rating of 50; a household blender is at a rating of 100; and everyone in America has a certain amount of hearing loss by the age of five, and by the time someone is 80, they are close to a 50% hearing loss, although there are exceptions to that. He stated a clothes washer is at 78 dcb; their loudest piece of equipment would be at 73 decibel rating at five to one-hundred feet; and the nearest property is in excess of 180 feet. He stated this is not taking into consideration eight-inch poured block walls, and an eight-inch screen wall as indicated on the site drawing. He stated when people think of car washes, they think of what exists in the market area; and advised of test sites being set up at nine Super Wal-marts. He commented on California's restrictions on driveway car washing; and advised the average driveway washing uses 14 gallons of water per minute or 140 gallons per car. He stated in Titusville, they are currently working on a project where it is mandatory to put in a reclamation unit; and Deland, Immokalee, Lee County, and Collier County have 100% reclamation units. He stated all the products that go in are 100% biodegradable; household products such as Tide and bleach are more non-friendly to the environment than the products that go through the units; and when people think about car washes, they automatically think the opposite way, but that is not the technology that exists today. He commented on water from the reclamation unit being filtered and processed, testing at the University of Colorado, a bill being filed in the State of Florida to stop driveway washing, and new technology.

Margaret Dutczak stated the homeowners met with Mr. Spielvogel; things were better than at the P&Z meeting; but there are two things she would like to specifically address. She stated they did work with the hours and cut them back; but she still has a problem with the 11:00 p.m. closing time during daylight savings time; and advised whether it is standard time or daylight savings time, she still has to go to work at the same time each morning. She stated she would like more clarification on the closing at night as she wants to make sure no one can come in at 9:45 p.m. and stay for an hour detailing their car with car doors open and radio blaring. She stated Mr. Spielvogel said on July 8 that before the next Commission meeting he would have a representative of the company that is building the equipment meet with them; and she guesses today is between July 8 and the Commission meeting. She stated she knows Mr. Spielvogel is not a technical representative, but he mentioned something in the vicinity of 45 decibels; there is a big difference in 73 decibels; and she is an electrical engineer and would have loved to have met with Mr. Boyd. She stated she has a copy of the binding development plan that was sent to her on July 26, 2002; page 2, paragraph 5.D says access to the property will be closed as provided in paragraph 5.A; however, the hours are in paragraph 4.B.

Chairman Scarborough stated the speaker is right; that is incorrect.

Ms. Dutczak stated on page 3 subset e, it says the owners gross parcel is located at 60 North Tropical Way, 70 North Tropical Way, and 80 North Tropical Way, also described as Lots 4, 3, and 2 respectively; but it is actually Lots 5, 4, and 3; and in subset f when talking about Ms. Cooke's lot, it should be Lot 3 and not Lot 2.

Chairman Scarborough inquired if the speaker looked at the dynamics of how additional buffering could occur by where buildings were placed and how different things have occurred so there is greater buffering of sound as it moves into the residential areas. Ms. Dutczak responded they did locate the vacuums away, so they are not even an issue; but she is confused how Mr. Boyd could say it could be 73 decibels from 5 to 100 feet because that is a huge area. She stated they are putting up a wall which should buffer and the landscaping should be a help. Chairman Scarborough inquired if Ms. Dutczak's expertise is in buffering sounds; with Ms. Dutczak responding no.

Commissioner Higgs inquired at 10:00 p.m. would it be possible to make the pumps and vacuums non-operational via some kind of timing device so there would be no reason to be there; with Mr. Boyd responding that can be done.

Dr. Steve Dutczak stated he is Margaret Dutczak's father; her house was a first time purchase for his daughter; and when she got the letter from the County, she requested his help. He commended the applicant for handling the concerns; and stated they went in many cases to what was requested and sometimes more. He stated he does not know the rationale for the 130-foot buffer; his concern is the safety of his daughter and whether people would be able to get into her back yard; if they had paved that and made it an access area, he would have been worried; but the applicant answered that with the gate or fence. He stated the big question was still hours of operation; if the property was retained as BU-1-A, there would not be businesses still open at 11:00 p.m.; and inquired what difference does daylight savings time make. He stated he is not against the project, nor does he think his daughter is against it; it will help in many cases by cleaning up the mess; and the applicant has answered the questions; but he would like several clarifications.

Dr. Betty Ahmed stated she has power of attorney for her 89-year old aunt, who owns the property where the strip mall is; she was not invited to the meeting at Mr. Spielvogel's office; and one of the things she is concerned about is the nearness to her property. She stated Mr. Spielvogel said the nearest property was 180 feet; when she spoke to him during the break he said he thought it would be approximately 20 feet; he is familiar with the property because he owns the lease on the strip mall; and she has no way of knowing the distance because she was not at the meeting. She stated they are also concerned about the noise; having it 20 feet away is too close; they said they made some concessions about a wall for the residential people; and there should be some concession like that with her property.

Mr. Spielvogel stated there is already a wall for the strip mall; that is BU-1 property; and it has a solid wall to the rear plus another along the property line. He stated he represents the lessee; the lease runs out in 2013; and he would not knowingly provide anything that would disturb the tenants of the strip center. He stated when he talked about the 130 feet, he was talking about the closest residential properties; and there is a common property line with the strip center, that is zoned BU-1. He stated he is embarrassed about the typos, and apologizes; he wants to keep the numbers correct; he sent copies of the binding development plan to all the property owners to the south; and had he known about the typos, he would have corrected them before now. He stated he does not understand the concern about whether they will close the gate; when the car wash stops functioning, the property is closed and remains closed until the following morning; and if there is another way of saying that, he will be glad to accommodate anyone who is confused about it. He stated if the Board wants there to be a clock on it, Mr. Boyd says that can be done. He stated he understands the Board's concern; people come before the Board, tell it things, and it does not work out that way; but he has been doing this sort of thing for quite a number of years and has always been concerned that what he told the Board was correct, because otherwise the Board might remind him of his errors the next time he came before it. He stated he appreciates the comments on the time; when he approaches a project, he tries to think in terms of how he would feel if he was living there and what his concerns would be; and that is the practical way of handling projects. He stated as far as hours are concerned, the hours meet his client's needs; his clients know the business; there are a certain number hours they have to maintain to make the project economically feasible; and they have tried to be responsive in many other ways. He advised they are putting up a fence for Heather Cooke because they are concerned; and they are trying to do the right thing.

Commissioner O'Brien stated on the aerial photograph, it shows the property; and inquired if the strip mall is the triangular shaped property; with Mr. Spielvogel responding yes, it lies between his client's property and South Courtenay Parkway. Commissioner O'Brien inquired if the car wash will be almost behind the strip mall; with Mr. Spielvogel responding affirmatively. Commissioner O'Brien stated noise is obviously of deep concern to the neighbors; the AU parcel could be rezoned to RU-1 at any time, which would put houses on the west side; and inquired if there will be one central vacuum or individual vacuums in each bay. Mr. Boyd responded the vacuums are going to sit on pedestals; and he was going to hand out the charts showing the decibel levels. Commissioner O'Brien stated if the vacuums were surrounded on three sides in a box of some kind, whether it was cinder block or glass block or cement, lined with geotextile, that should reduce noise by approximately 85%, and redirect the noise back to the 7-Eleven. Mr. Boyd stated Commissioner O'Brien is thinking of a vacuum at a service station and relating the proposed equipment to that antiquated equipment; the dcb's of the new vacuums are 53; a washing machine is 78 dcbs; so the interliners Commissioner O'Brien is speaking about already exist, which is why the dcb level is 53. Commissioner O'Brien stated he is suggesting taking one more step as it is not expensive; with Mr. Spielvogel responding the answer is yes. Commissioner O'Brien stated that will be included in the binding development plan; and inquired about pumps and compressors; with Mr. Boyd responding they will be inside a contained equipment room. Commissioner O'Brien inquired if County Code says light cannot leave the property; with Mr. Enos advising it cannot bleed off onto residential property more than .2 foot-candles, which is an extremely low level of light. Mr. Spielvogel stated that is included in the performance standards; and they are bound by those standards. Commissioner O'Brien inquired if the applicant would be willing to put signage in each bay saying no loud radios, CD players, etc.; with Mr. Spielvogel responding he cannot see any objection to doing that. Commissioner O'Brien stated there is a sentence missing about the vegetated buffer for 130 feet. Mr. Spielvogel explained they are adding to the setback; the 130 feet will remain BU-1-A; and they have already pulled that out of the request, so it is no longer part of the rezoning. Commissioner O'Brien inquired if there will be a vegetative buffer between the property and the homes; with Mr. Spielvogel responding there is a setback; they are going to talk about the vegetation with the neighbors to the south; and they have discussed putting in trees, oleanders, or bougainvillea, which could be planted, would grow rapidly, and would afford protection for the homes because no one would make their way through bougainvillea willingly or quickly. Commissioner O'Brien stated the sentence is missing that the vegetative buffer will be maintained in perpetuity; and that is usually included in these kinds of things. Mr. Spielvogel stated they thought they were dealing with the standard and putting in uniform provisions; but they did not recite all of the Ordinances, although they are bound by them. Commissioner O'Brien inquired if Mr. Spielvogel will agree to maintain in perpetuity whatever they agree to plant; with Mr. Spielvogel responding affirmatively. Commissioner O'Brien commented on correcting the typographical errors Ms. Dutczak mentioned; with Mr. Spielvogel responding those will be corrected. Commissioner O'Brien stated on page 3, it says in addition thereto increase the setback by ten feet, but Mr. Spielvogel said 15 feet. Mr. Spielvogel stated the setback is either 15 or 25 feet depending on whether it is rear or side line; and whatever the setback is, they will increase it by ten feet. Commissioner O'Brien stated if there is any noise on the property after 10:00 p.m., the neighbors have the right to call the Sheriff on the Noise Ordinance, which is very strong about any kind of raucous noise; and the deputies would have to go to the property and have the noise shut down. He stated he is not going to request a change in the hours of operation; however, if in one year, there are complaints and people bring problems to the Board, the Board will have no problem in correcting the binding development plan to close at 9:00 p.m. Mr. Spielvogel stated the fact that they are going to be closing the place down will discourage anyone from using this area as a hangout.

Commissioner Higgs stated on page 2, item B, it says to limit the hours of operation; and inquired if the intent is to limit the hours in terms of access to the property and equipment function; with Mr. Spielvogel responding affirmatively. Commissioner Higgs stated she does not think limiting the hours to 10:00 p.m. during both daylight savings and standard time is an unreasonable request. Commissioner O'Brien commented on summer bringing mosquitoes and heat, and people who work late.

Mr. Spielvogel stated they tried to work with the neighbors and the Board; they would like to be able to build this project; and his client needs these hours to make it work. He stated they started out talking about 24 hours, seven days a week because they felt comfortable with the noise suppressors and technology that it would not cause a hardship; when he went before the P&Z Board he said should there be a problem, they would commit to cutting back on the hours and were willing to set up some independent judgment; and when he talked to his client after the meeting with the homeowners, he cut it back. He stated it is only one hour, but it is something his client needs; he hopes the other points they have agreed to bear witness to their good faith; Mr. McGraw and Ms. Cooke are not present; and he would like to think that is because they are pleased with the changes they have made.

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to approve Item 13 with a Binding Development Plan, as amended by the applicant to correct typographical errors, provide that equipment will be made non-operational and there will be no access upon closing, provide for noise barriers for vacuum equipment, and provide that the vegetative buffer will be maintained in perpetuity; and adopt an Ordinance amending Article III, Chapter 72, of the Code of Ordinances of Brevard County, entitled "The 1988 Comprehensive Plan", setting forth the Sixth Small Scale Plan Amendment of 2002, 02S.6, to the Future Land Use Map of the Comprehensive Plan; amending Section 62-501 entitled Contents of the Plan; specifically amending Section 62-501, Part XVI (E), entitled The Future Land Use Map Appendix; and provisions which require amendment to maintain internal consistency with the amendments; providing legal status; providing a severability clause; and providing an effective date.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to amend the motion to provide for the hours of operation to be 7:00 a.m. to 10:00 p.m. year-round. Motion carried and ordered; Commissioner O'Brien voted nay.

Commissioner O'Brien stated the applicant has said he needs to make "x" amount of dollars per hour to make a living; the Board is not aware of the demographics involved; the applicant originally wanted 24 hours a day, but worked with the neighbors and the Board; and the Board is overstepping to do this.

Commissioner Higgs stated this is a request to change the zoning and the Comprehensive Plan; and she would agree the applicant has tried to make accommodations to the neighborhood; it is the Board's responsibility to agree to a zoning; but it is the applicant's decision whether they want to go forward with the project under the conditions set by the Board. She stated the Board's job is not to make the business decisions, but to set the standards in the community.

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

Chairman Scarborough stated since there were so many changes the Board would like to see the changes to the document. Mr. Enos advised under the policy recently adopted, this will come back to the Board as a consent item at a future meeting.

Item 15. (Z0207301) Elenor Irene Parets' request for change from GU to RU-1-11 with a BDP, limited to one homesite, on .50 acre, located on both sides of U.S. 1, which was recommended by the P&Z Board for approval with a binding development plan limited to one homesite.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve Item 15 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 16. (Z0207302) John P. and Bonnie J. Sessa's request for change from GU to AU on 4.82 acres located on the south side of Grant Road, which was recommended for approval by the P&Z Board.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve Item 16 as recommended. Motion carried and ordered unanimously.

Item 18. (Z0207401) Brevard County Board of County Commissioners, on its own motion, authorized administrative rezoning of property owned by Irene Charamut, Trustee, pursuant to Future Land Use Policy 10.2, in initiating a change from BU-1 and BU-2 to all BU-1 on 1.66 acres located on the west side of U.S. 1, which was recommended for denial by the P&Z Board.

Commissioner Carlson requested Mr. Enos give the background on why this is an administrative rezoning. Mr. Enos advised in April 2002 the Board directed staff to initiate this administrative rezoning; this was done at the suggestion of one of the neighbors who came to the Board during a regular meeting; and this has been to the Planning and Zoning Board, which recommended denial. Commissioner Carlson stated even if the Board approved BU-1, it would not change the use, and it would become a nonconforming use; with Mr. Enos advising that is correct. Commissioner Carlson inquired if there would be any net benefit to doing this; with Mr. Enos responding the only net benefit would be if the use was abandoned for a period exceeding six months it could not be reestablished, and would only be able to be used under the BU-1 zoning.

Attorney Leonard Spielvogel, representing Franklin Construction and Excavation, inquired about the sequence of appearances; stated his client, who is the property owner, is opposed to administrative rezoning; so he is not here representing the applicant, but is here as defendant. He stated there is a unanimous recommendation from the Planning and Zoning Board to deny the rezoning; all ten members agreed that rezoning is not justified; and expressed concern about the time limits to make a presentation to the Board. He stated he had an unlimited amount of time to make his presentation to the P&Z Board and to respond to those interested in changing the zoning of his client's property; and suggested he step aside now to allow those who think the rezoning is a good idea to make their presentation, so he can then respond. He stated he has trouble speaking to something he is against before he hears those who are proposing the request. He advised this was on the April 16, 2002 Agenda, but his client was not notified and knew nothing about the request until someone called to say it was being discussed on television.

Chairman Scarborough inquired if Mr. Spielvogel was not at the P&Z meeting; with Mr. Spielvogel responding he is talking about the April meeting when the request for the administrative rezoning was made; they were not notified; and they have been playing catch up ever since. Chairman Scarborough suggested Mr. Spielvogel sit down, and he will allow him to come up for rebuttal.

Melissa Shoff stated she lives adjacent to Franklin Excavating on the south; and she has a few concerns regarding what is going on there. She stated she is not sure what the business entails; but she knows there is a lot of noise early in the morning. She stated she does not know that the property is zoned to be a salvage yard or why there are dump trucks and sewer pipes on the property; but she is concerned about runoff onto her property. She stated she is concerned about what she has to look at every day, what she has to hear every morning, and what is running off onto her property; she has four children who play; the acreage she lives on is a family development; and she is concerned that what is being brought in may contaminate her family. She stated the property owner conforms to one violation, but then has another; and inquired why this has to keep being brought to the Board. She stated if the property owner is made to fix the violation, it should not happen again. She expressed concern about dirt biking on the property and whether it requires rezoning.

Dan Vanderberg stated the Shoff's would be the first property south of the parcel in question; and his property would be the next one north. He stated his property does not go as far back as theirs, but the trucks are parked across from his yard. He stated he has lived there since February 1997; a lot of incorrect statements were made at the P&Z meeting; as far as the salvage yard, as long as he has been there, Franklin Excavating does demolition work, and sometimes saves useful stuff from the demolition; but it is not a trash area. He stated as far as noise, they start early in the morning, but not as early as some construction; they warm up the trucks and leave; there is no noise during the day; and as they are done fairly early in the evenings, there is no noise going on there. He stated as far as runoff, US 1 to the north and south are higher; and basically it all drains the area between the Shoff property and the Franklin Excavating property. He stated he does not know if it would have been called a wetland before, but the area that the Shoff's cleared, which blocked the view to Franklin Excavating before, is a swamp. He stated it has been cleared, and they are trying to drain it; but there is no runoff from his property or the Franklin property that is necessarily going there. He stated he was not able to see the Shoff property when he moved in; and the only time the view was opened up was after they cleared. He stated MacAsphalt is just to the west of the property; Franklin Excavating is to the north; the Shoffs bought the property, moved in, and cleared it with everything in place ahead of time, so it is not a surprise that the properties were there. He stated as far as dangerous stuff, when MacAsphalt is laying roads, it has smoke that comes out as well as a funny smell that he worries about; but he has never had a problem with Franklin Excavating. He stated he did not know about the violations until he came to the P&Z meeting; some of the complaints were false complaints; and he does not know the legal ramifications of filing a false complaint, but this borders on harassment. He stated he understands Ms. Sheahan coming to the Board; the Government Center and Melbourne Mall used to be fields, and he liked them like that; his mother's place is being ruined by things growing to it; but this is basically a commercial/industrial area. He stated there are a couple of residential areas left; considering what the place is zoned and what could be going on there, it is a fairly good situation for everyone; and the exaggerations that have been made make it sound like one thing, when that is not the case.

Jane Sheahan submitted written materials; and stated she has a notebook full of pictures to prove everything she says. She stated she has pictures going back to 1984; she was called a liar at the P&Z meeting, and was upset by it; and Mr. Spielvogel did the same trick, letting her speak first, so she did not get a chance to rebut anything, which was very unfair. She stated page 3 of the handout shows all the citations; commented on the number of violations, items saying no violation, and items saying the person complied; and requested the Board look at her comments and the years given to see what she is dealing with. She requested those in the audience in support of the rezoning to stand; and five people stood in support. She stated Mr. Hill was in the hospital last week; he did come to the P&Z Board; and she is not alone as the people who stood live on Shoff Lane. She stated she hopes to get a chance for rebuttal; and read aloud her presentation. She advised Allen Hill Avenue was named after two of the first inhabitants; she and her husband purchased their home in 1982 seeking a quiet place to raise their family; and the house has seen her sons' graduation parties, weddings and birthdays, Christmas, and grandchildren sleepovers. She stated the Charamuts and their lawyer will say they are the victims and will challenge her reputation by saying inaccurate things about her; that is what high-powered lawyers do; and she cannot afford to complete with big business spending that kind of money. She commented on listening to construction in the early morning and motor cross on the weekends, and looking at eyesores from her kitchen window such as the junkyard being filled with sewer pipes, debris, dirt piles and huge cranes and bulldozers.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to allow Ms. Sheahan additional time. Motion carried and ordered unanimously.

Ms. Sheahan stated she has attended meetings since 1992 trying to correct these complaints; promises were made, but not executed; and in May 2002, she was at the meeting to talk to the Board about rescinding the zoning and returning it to its original zoning, which was GU and RU-2. She stated a Special Master hearing was conducted; the zoning was changed to BU-1 with the rider that Mr. Charamut could continue operations as is; and the P&Z Board also met and the determination was denied due to that rider. She stated the submittal has a list of complaints that were presented by the Charamut's lawyer at the P&Z meeting; from March 1992 to present, there is a trend; and even though some were categorized as unfounded, there is loud noise, huge dirt piles, junk, debris, and sewer pipes. She stated she has environmental concerns about the sewer pipes and possible bacteria; and inquired what is under the two-foot berm that was put in. She stated she has concerns about what the operation will do next; it is apparent they do not feel they need to comply when a complaint is made; and she does not take pleasure out of filing complaints and attending Special Master, P&Z, and Board meetings. She stated she is not here to fight with anyone; a mistake was made on August 24, 1987; and she is the victim. She requested the zoning mistake be corrected by rescinding the BU-1 and BU-2 zoning of Mr. and Mrs. Charamut a/k/a Franklin Excavating, returning it to the original zoning of GU and RU-2, and allowing 120 days for them to comply. She stated she has pictures and other evidence showing that everything she has said is true. She submitted a photograph album for the Board to view.

Attorney Spielvogel requested his clients, Peter and Irene Charamut and their children, stand; and stated he is representing a "mom and pop" business. He stated he watched the video of Ms. Sheahan's presentation on April 16, 2002; it is hard to respond; this person has made a career of being disturbed by what is on the other side of a ten-foot fence; and when she says she can see these things from her window, that is not the case. He stated the Board is here to talk about whether to administratively rezone his client's property; and pointed out his client's property, surrounding residences, the Harley Davidson shop, the MacAsphalt office, the furniture warehouse, the concrete plant, the asphalt plant, the Florida East Coast Railroad, the roofing company, the trailer park, and US 1 on an aerial map. He stated an argument could be made that this is a residential enclave in the middle of what is predominantly business and industrial; and he does not feel there is justification to say that his client should have his zoning taken away unless he has been a bad neighbor. He noted he did not see Ms. Sheahan's submittal, so cannot respond; and submitted paperwork to the Board and Clerk. He stated there have been 20 complaints over the past ten years; the only complaining party has been Ms. Sheahan; her neighbors never joined in her complaints or made independent complaints; and the fact that they have now come to support Ms. Sheahan makes him wonder why they were not disturbed over the years as Ms. Sheahan has been constantly disturbed. He advised his client has been harassed by Ms. Sheahan; and submitted further paperwork. He requested the Board look at Exhibit A, which is a list furnished by Code Enforcement of complaints over the past ten years; there are 20 complaints; at the April 16 hearing, Commissioner Carlson inquired if Ms. Busacca knew if any of the complaints had gone to the Special Master, but Ms. Busacca did not know; and advised there was a hearing pending at that time before the Special Master, which was the first complaint that had ever gone to the Special Master. He stated Exhibit B shows a valid complaint; of the 20 complaints, only seven were found to have validity; the others were unfounded or without justification; and referred the Board to a memo dated April 2, 2002 from Ron Burch, Code Enforcement Supervisor. He stated the complaint shown in Exhibit B was September 15, 1994; the alleged violation was heavy equipment operating before 7:00 a.m.; the Code Enforcement Officer approached his client and advised under his zoning he was not at liberty to operate before 7:00 a.m.; and his client said he would comply and did so. He stated Code Enforcement's duty is to go out in response to complaints and educate those who are committing violations as to what is proper and appropriate under the circumstances of the zoning they have; if someone ignores Code Enforcement and continues with the same violations, then Code Enforcement issues a citation which goes before the Special Master; but from 1994 to February 21, 2001 there was not a similar complaint. He stated Exhibit C shows a complaint by Ms. Sheahan that trucks were making noise before 7:00 a.m.; Code Enforcement went back the following morning to hear the noise in order to take action; and they arrived at Ms. Sheahan's home at 5:35 a.m., heard noise, and left twice to confirm that the equipment noise was coming from MacAspalt and not the address of his client. He stated the truck noises could be clearly heard; but none of that activity was coming from his client's property; the noise was coming from MacAsphalt, which is zoned IU. He noted MacAsphalt has been there since the 1960's; when he came to the County in 1960, it was a well established firm; and he does not know why it took until 2001 for Ms. Sheahan to realize that noise was coming from MacAsphalt, which is operating within the confines of the Code. He pointed out MacAsphalt and Ms. Shoff's property on the aerial; and stated they recently built their homes, and they are built right up to IU-1. He advised the aerials were taken June 27, 2002; it shows the MacAsphalt property at the west end and the piles of material that are stored; and the aerial shows the close proximity of the parcels. He stated Exhibit C outlines the 13 violations that were not valid; and Exhibit D is another complaint from Ms. Sheahan about a fence without a permit.

Motion by Commissioner O'Brien, seconded by Commissioner Higgs, to allow the speaker three additional minutes. Motion carried and ordered unanimously.

Mr. Spielvogel stated when Ms. Sheahan addressed the Board on April 16, she expressed concern about the loss of the vegetated buffer; she and the Board were upset about the fact that the County Commission in 1987 had provided for a vegetated buffer and it was not there any longer; and the Board questioned how anyone could ignore the decision of the Board and inquired about the buffer. He stated in Exhibit E, the Board will find a statement signed by Ms. Sheahan agreeing to the fence in lieu of the buffer; there was a meeting during which staff was trying to solve problems between Ms. Sheahan and his client; and someone suggested putting up a fence; so his client did that, with the blessing of Ms. Sheahan and Mr. Hill, who both signed the statement. He stated his client put up a two-foot berm and an eight-foot fence for a total of ten feet in order to separate the two parcels; but that was not brought to the Board's attention when this came before it in April 2002. He stated for Ms. Sheahan to see all the violations and be as disturbed as she is about what is happening on his client's property, she has to climb a ladder to look over the fence; and presented a picture of the ladder that Ms. Sheahan keeps on her side so she can look and be aggravated by what she sees. He stated he is not angry or disturbed, but rather sad that she has to do that. He stated the Board may be interested to know how the Special Master hearing that was pending in April turned out; there was only one item before the Special Master and that had to do with a claim that his client had some junk on his property; Exhibit H shows what was on the property; it was evidence in a lawsuit against an insurance company; the Special Master decided it was junk; and rather than challenge the finding, his client removed it from the property. He stated there are no violations on the property.

Commissioner Carlson inquired if the pictures are current; with Mr. Spielvogel responding it is shown on the reverse side; with Commissioner Carlson advising it is from June 27, 2002. She stated there is a stipulation on the Resolution that says no parking of equipment on the westerly 152 feet and a natural vegetated buffer maintained on the north, which Mr. Spielvogel addressed as being replaced with a fence. Commissioner Carlson stated Ms. Sheahan did show pictures showing at some time there was something back there; and obviously the problem has been fixed if the picture is accurate. Mr. Spielvogel stated that is correct; no complaint has been made about what was sitting at the west end of the property; and it was there in order to get it away from Ms. Sheahan's property, which is not at the west end. He stated once it came before the Board as the subject of a complaint, his client removed it; and that is what Code Enforcement does, tell someone he or she is violating and they either comply or get in trouble. Commissioner Carlson stated there was the issue of dirt biking; and inquired does Mr. Spielvogel's client know anything about that; with Mr. Spielvogel responding he has no knowledge of it, but will ask his client. Commissioner Carlson stated the only advantage of applying BU-1 zoning would be if the property was ever sold the BU-2 would go away; but by doing so, it stays a nonconforming use until that time. Mr. Enos stated the change would not be when it was sold, but when the use was abandoned; the property could be sold, and the use continued as a legal nonconforming use; and it is only when the use is abandoned, that it is lost. Commissioner Carlson stated she does not understand why the Board would want to zone it BU-1; the P&Z Board recommended denial; she does not see the legitimacy of a change if the use will remain until it is abandoned; and it does not seem appropriate to go through with what the Board is trying to do.

Commissioner Higgs stated regardless of what the Board does, there is a problem; the Board needs to focus on resolution of the problems; and while she understands that changing the zoning will not solve the use, she would hate to act on it tonight to deny because it would leave the same problem.

Commissioner Carlson inquired what changing it to GU or RU-2, as suggested by Ms. Sheahan, would do; with Commissioner Higgs advising it would be EU-2. Mr. Enos clarified the application is all BU-1; but regardless of what it was rezoned, the current use would still be a nonconforming use. Commissioner Carlson stated the use would stay until abandoned no matter what the zoning is changed to; with Mr. Enos advising that is correct. Commissioner Carlson stated her point is it does not matter; Code Enforcement will have to deal with it; BU-2 should not have occurred in this location, but it did; and unfortunately, it is necessary to live with it. She stated changing it to anything else tonight is not going to help Ms. Sheahan; and the only thing that will help is vigilance by Code Enforcement and making sure the applicant follows the rules.

Commissioner Carlson inquired if Ms. Shoff understands that the use will remain no matter what zoning is put on the property; with Melissa Shoff responding she understands that. Ms. Shoff stated her concern is Code Enforcement; she has walked the fence line with Code Enforcement; but she has seen the violations over and over again. Commissioner Carlson inquired if Ms. Shoff is saying that Code Enforcement is not taking care of it; with Ms. Shoff responding there are violations, they are cleaned up, and then they happen over and over again. Ms. Shoff stated she can guarantee there will be dump trucks or salvage in the yard within the next month, which is a violation; and that is her concern. Commissioner Carlson inquired what is the recourse if there are repetitive violations; and are there injunctive things that can be done in that regard. Attorney Bentley advised the individuals on a private basis can file for injunctive relief; but it would have to reach the level of a public nuisance for the County to file for injunctive relief.

Commissioner Higgs inquired if the Board can do that if there are repeat offenses. Attorney Bentley stated repeat offenses are difficult in the Code Enforcement arena because they are given a notice and opportunity to cure, and unless it is somehow tied together to create one occurrence, it is difficult to prosecute those cases.

Commissioner O'Brien stated that is not quite accurate; he sat on the Code Enforcement Board for a long time; and explained how repeat offenses are treated, using the example of a barking dog. He stated if someone puts a barking dog inside, they are in compliance; the next time it happens, Code Enforcement writes them up and they go to a Special Master; and the Special Master, if it is a series of violations, can start fining the person going back to the date of the original violation. He stated repetitive violations go back to the first time one is cited, and a person can be fined for every day up to the last violation. Commissioner Carlson stated that is not the law now; with Commissioner O'Brien advising yes it is for repeat violation. Attorney Bentley stated in this case, they have different violations every time; there may be some circumstances where violations can be tied together; but this does not sound like one so far.

Commissioner Carlson inquired what would be the qualification for injunctive relief if the residents wanted to pursue that, and what would they need to build a case on; with Attorney Bentley advising they would need to establish a nuisance. Commissioner Carlson inquired if they could use the Code Enforcement violations over time; with Attorney Bentley responding they are going to have to establish the impact on their properties through additional methods; Code Enforcement might be a backup, but the residents did not prevail in a number of those cases; so they are going to need more than that, and will need private legal counsel to help them. Commissioner Carlson stated hopefully those in the audience understand that is what they will have to pursue through civil relief, either getting an attorney or filing an injunction, provided they have backup data.

Commissioner Higgs suggested tabling this tonight and getting a report from Code Enforcement about the problems that are repeatedly coming up on this property so the Board can understand the essence of the problem. She stated the Board can put this on hold for 90 days, get the Code Enforcement report, and see whether there are problems with the laws not being enforced. She stated she feels frustration that there is not a resolution tonight; and she is not sure abandoning it is the way to go either.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to table Item 18 to the November 7, 2002 Board of County Commissioners meeting; and direct Code Enforcement staff to provide a report on repeated violations.

Commissioner Carlson stated the Board will wait and see what kind of response it gets from Code Enforcement as far as what issues it is dealing with on the property and potential ideas for solving the problems. Commissioner Higgs stated Code Enforcement may say it goes out there and there are no violations or the violations are corrected; but the Board needs a report from Code Enforcement and the County Attorney's Office looking from both perspectives, and seeing if there is something else that can be done. She stated there are people who have been here for hours and have attended various meetings; and the Board should go another step to see if it can figure this out.

Commissioner O'Brien stated he would not want the Board to take something out of proportion to what the reality is; out of 17 complaints starting in 1992, several were unfounded; and elaborated on various allegations. Commissioner Carlson advised the Commissioners have read that. Commissioner O'Brien stated he does not want the Board to say this business has been a constant violator, because that is not true. Chairman Scarborough stated by tabling the Board is not saying anything; and it is just allowing more time. Commissioner Carlson stated there is conflicting evidence that the Board heard at this hearing that would make her believe it needs to do something further; she does not want to inflict anything further on someone who is complying with the law; and the Board will get the report and maybe some methodology to clean some of this up and not have ongoing Code Enforcement problems. Commissioner O'Brien stated on two occasions Code Enforcement officers were out there at 5:00 a.m.; and on both occasions there was no violation. Chairman Scarborough stated there is a lot of emotion involved in this issue; and the Board has the ability to get comments from Code Enforcement. He stated looking at the aerial, there is inherent incompatibility; and the question is whether there is something the Board can do. He stated he is not ready to say there is something that can be done; and he would like more time to consider this in a more rational sense.

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

Item 19a. (Z0207405) Brevard County Board of County Commissioners, on its own motion, authorized administrative rezoning of property owned by Tony Barge, in initiating a change from RA-2-6 with a Binding Site Plan to RA-2-4 on 7.31 acres located on the north side of Aurora Road, which was recommended by the P&Z Board for approval.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to approve Item 19a as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 19b. (Z0207402) Tony Barge's request for CUP for a Church in an RA-2-6 zone, removing the existing BSP on 7.31 acres located on the north side of Aurora Road, which was recommended for approval by the P&Z Board with access limited to Aurora Road.

Commissioner Carlson inquired if Items 19a and 19b are related; with Mr. Enos responding yes, 19b is a request for a conditional use permit for a church on the same property as 19a, and staff initiated 19a based on the fact 19b was submitted. Commissioner Carlson stated she understands in the binding development plan the access to White Road was removed, and that the approval by P&Z Board was based on access being limited to Aurora Road. Mr. Enos stated there was not a binding development plan; and it was just a condition of the conditional use permit. Commissioner Carlson stated she has no problem with the item since they did agree to cut off access by White Road, which was a big issue.

Motion by Commissioner Carlson, to approve Item 19b as recommended by the P&Z Board.

Vaheed Teimouri, Engineer for the Temple, stated the reason this was recommended for one limited access was because prior development only had one access off Aurora Road; the reason he pushed the development further north on White Road was because of the sensitive wetland areas toward the front; and it is a long access toward the facility. He noted the facility does not have a mass gathering such as a traditional church would have; and the reason they wanted the second entrance was for emergency access. He stated he is willing to limit the access on White Road by cordoning it off by chain or some other means.

Commissioner Carlson requested Mr. Teimouri define limited access; with Mr. Teimouri responding the driveway would be cordoned off and would just be for emergency access. Commissioner Higgs stated if there is going to be emergency access, it will be from Aurora Road. Mr. Teimouri advised it is a long road and full of trees. Commissioner Carlson stated the time is going to be saved because the emergency equipment would come from Aurora Road. Mr. Teimouri stated that is fine.

Commissioner Higgs inquired if this is a conditional use permit for a church; with Mr. Teimouri responding it is a Buddhist Temple. Commissioner Higgs stated uses change so the Board has to look at this in terms of use by any kind of church; and this facility may not be using it for a mass gathering; but the conditional use permit may be applied to different kinds of religious groups that might be there in the future. She inquired if it is necessary to push the facility so far back; with Mr. Teimouri responding yes, because there are pockets of wetlands. Chairman Scarborough stated Kim Zarillo voted against it because of even that intrusion.

Commissioner Higgs seconded the motion to approve Item 19b as recommended. Motion carried and ordered unanimously.

CLARIFICATION OF MOTION, RE: ITEM 1, AIR LIQUIDE AMERICA CORPORATION

Commissioner O'Brien stated Item 1 for North Merritt Island was the request as well as the Future Land Use Map series amendment; and both were part of his motion. Mr. Enos stated that was his understanding.

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

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

Attorney Tino Gonzalez outlined the things that have been done since the last meeting, including submitting a pre-application, doing all the engineering, and meeting with the County staff; and stated things have been done as timely as their engineer and surveyor have permitted. He stated this has gone from initially a request for rezoning to a Small Comprehensive Plan amendment; and now they are seeking application to establish a subdivision. He stated they have worked closely with Todd Corwin, Gwen Heller, and Bobby Cameron; and they had a pre-application meeting. He stated they have submitted a couple of waivers, waiver for the requirement of having a paved roadway and another from the 15-foot vegetated buffer; and Ms. Heller is working on them. He stated at the last meeting, it was indicated the item was being tabled for the last time; but they have made significant strides toward final resolution of this for Mr. Houston. He requested the Board's indulgence so this can be resolved; and inquired how much time is needed to get the waivers through; with Planner Todd Corwin responding Mr. Cameron indicated it would be four to six months. Mr. Gonzalez stated they have done everything they can do; and they are tied into the County's timetable. Commissioner Higgs inquired how much time is needed for the tabling; with Mr. Gonzalez deferring to Mr. Corwin. Commissioner Higgs stated the applicant has made progress; last time the Board said if they had not made some progress, it was not going to table it again; and inquired if the applicant needs 90 more days. Mr. Gonzalez advised Mr. Corwin said it will take the Land Development Department at least six months to finish; but he would be happy for 90 days, with the anticipation that between now and then, he will make more progress. Mr. Corwin stated the minimum for a typical site plan is three months; but when waivers are requested, it can take as long as four to six months. Mr. Gonzalez stated they will be working closely with Mr. Corwin and Mr. Cameron; and they are tied to the County's timetable.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to continue the public hearing to consider an ordinance setting forth the Sixth Small Scale Plan Amendment 2001, 01S.6 to November 7, 2002. Motion carried and ordered unanimously.

PUBLIC COMMENT, RE: JOHN SHISHILLA

John Shishilla stated on July 26, 2002, he did a civilian ride-along with the Sheriff's Department, East Precinct, Merritt Island; and he learned a few things. He stated the experience was eye-opening; the biggest things were the way the officers handled themselves, their professionalism, their willingness to help, and their teamwork; and commented on the activities of the evening. He stated there were times when they did not have a canine unit to back them up or did not have shields if they had to enter a building without canine backup; the radar detector was outdated; most cars did not have a camera in them; and some of the officers were using small flashlights that take AA batteries because that is what they can get from the Department. He stated one of the biggest concerns is the radios; they have no way of tracking the Sheriff's Department; and commented on the radio system used by the Palm Bay Police Department. He stated the Sheriff's Department's radios are so old, they cannot even get parts for them anymore. He stated Merritt Island is a big area; East Precinct is required to also cover part of Cocoa Beach; and on Friday night the five officers ran back and forth all over the area, but were happy because they had five instead of four officers. He stated he came to the Board on his own accord; he runs a restaurant in Merritt Island; and he is shocked there are so few officers, especially after the September 11 event. He stated he hopes the next time the Board is looking at the budget, it will keep in mind that the average beginning officer makes $28,000 a year.

Chairman Scarborough stated that is very informative.

Upon motion and vote, the meeting was adjourned at 9:17 p.m.

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ATTEST: TRUMAN G. SCARBOROUGH, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA
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SCOTT ELLIS, CLERK
(S E A L)