April 4, 2002

The Board of County Commissioners of Brevard County, Florida, met in regular session on April 4, 2002, at 5:35 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, and Jackie Colon, Assistant County Manager Peggy Busacca, and Assistant County Attorney Eden Bentley. Absent was: *Commissioner Susan Carlson who was at a meeting.

The Invocation was given by Commissioner Randy O'Brien, District 2.

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

RESOLUTION, RE: RECOGNIZING ENRIQUE IGLESIAS, UNITED FOUNDATION FOR
AIDS/KIDZ CARE, AND PROJECT RESPONSE

Commissioner Colon requested adoption of a Resolution recognizing Enrique Iglesias, United Foundation for AIDS/KIDZ Care, and Project Response for their contributions to the fight against HIV and AIDS.

Motion by Commissioner Colon, seconded by Commissioner Higgs, to adopt Resolution recognizing the contributions of Enrique Iglesias, United Foundation for AIDs/KIDZ, and Project Response to fight against HIV and AIDS. Motion carried and ordered unanimously.

REPORT, RE: STRATEGIC PLAN COMMENTS

Chairman Scarborough advised the SWOT comments from Commissioners will be due on April 8, 2002 instead of April 7, 2002, because April 7 is a Sunday.

*Commissioner Carlson's presence was noted at this time.

REPORT, RE: DISTRICT 4 PUBLIC MEETING

Commissioner Carlson advised she will be having a public meeting on April 6, 2002 at 9:00 a.m. in the Commission Chambers to bring all interested parties up-to-date on the connection of St. Andrews Boulevard to the Pineda Causeway extension. She stated the connection is anticipated in conjunction with an interchange at Pineda Causeway and I-95 at a date to be determined; and at her request the Suntree Master Homeowners Association has developed questions and points that need clarification concerning the issue. She stated County staff will be available at the meeting to answer questions that may arise.

PUBLIC HEARING, RE: PLANNING & ZONING BOARD RECOMMENDATIONS OF
JANUARY 7 AND FEBRUARY 11, 2002

Chairman Scarborough called for the public hearing to consider items that were tabled from the February 7 and March 7, 2002 meetings as follows:

Item 1. (z0202102) Environmental Permitting, Inc.'s request for change from GU to TR-2 on 3.23 acres located on the west side of Burgess Avenue, north of Beck Drive, which was recommended for approval by the P&Z Board.

Ralph McCoig, representing Environmental Permitting, Inc., apologized for not attending the last meeting, noting a conflict with city council meetings; and advised he is here to answer any questions the Board may have.

Chairman Scarborough requested Mr. Enos explain the binding development plan and frontage on Burgess Avenue.

Zoning Official Rick Enos advised at the previous meeting there was discussion about rezoning the east lot to TR-2 and the westernmost two lots to RRMH-1; Mr. McCoig was not present so the Board tabled the item; and since then, Mr. McCoig submitted a binding development plan (BDP) that would limit the parcel to o more than three lots, reorienting the lots that now run north/south in an east/west direction so they will front on Burgess Avenue. He stated Mr. McCoig also amended the BDP to provide that the houses will be on the easternmost end near the road and the western portion of the three lots would be for stormwater retention facilities.

Assistant County Attorney Eden Bentley inquired if Mr. McCoig will limit development on the western two-thirds of all three lots to stormwater retention; with Mr. McCoig responding yes. Ms. Bentley advised it will require building the pond; and suggested changing the language to limit development to a pond; with Mr. McCoig responding he will be happy to do that.

Commissioner Higgs inquired if the zoning map will reflect TR-2 zoning all the way, as her concern was to keep the frontage of TR-2 along the road and not go into the interior of the parcel. Mr. Enos stated if the Board rezones the east one and one-half acres to TR-2 that will still give three half-acre frontage lots and the remainder would remain GU. He stated that will probably still meet with the intent of the applicant and keep TR-2 essentially on the frontage lots. Mr. McCoig stated that would be okay, as the intent is one house or one mobile home per acre. Commissioner Higgs expressed appreciation to Mr. McCoig for his willingness to work with the County; and stated if that could be done, it would be okay.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve Item 1 rezoning the east one and one-half acres to TR-2, giving three one-half acre frontage lots, and remainder stay GU, with a BDP amended to limit development to the western two-thirds of the three lots to stormwater retention only. Motion carried and ordered unanimously.

Item 2. (Z0202402) Gushing Waters Family Resort, Inc.'s request for change from RU-2-4 and BU-1 with BDP to RU-1-7, removing the existing BDP on 23.79 acres located on the north side of SR 520, west of Friday Road, which was recommended for approval by the P&Z Board, with a BDP limiting development to 95 units.

Mr. Enos advised the item was tabled from the last meeting for submittal of a BDP for four units per acre.

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

Item 3. (Z0201501) Brevard County Board of County Commissioners, on its own motion, authorized administrative rezoning on property owned by The County Line of Brevard, Inc. to remove the CUP for permanent commercial entertainment and amusement enterprises in BU-1 and retain the existing CUP for alcoholic beverages for on-premises consumption on 2.71 acres located on the northeast corner of I-95 and U.S. 192, which was recommended for denial by the P Board with condition the applicant obtain final site plan approval (as-built survey and certification of completion).

Ms. Bentley advised the Board closed the public hearing at the last meeting.

Chairman Scarborough advised the Board needs to a vote to accept the findings. Commissioner Carlson inquired if the Board is including the Resolution setting forth findings of fact; with Chairman Scarborough responding yes.

Motion by Commissioner Colon, seconded by Commissioner Carlson, to approve Item 3 and adopt Resolution setting forth findings of fact and conclusions revoking the conditional use permit for permanent commercial entertainment and amusement enterprise on property owned by County Line of Brevard, Inc. Motion carried and ordered; Commissioner O'Brien voted nay.

Item 4. (Z0201101) Thomas O. Bigelow, Jr. and Betty L. Bigelow, Trustees' request for change from GU to AU on ten acres located on the southwest corner of Blounts Ridge Road and Patty Lane, which was recommended for approval by the P&Z Board pending the resolution of the school issues.

Mr. Enos advised the item has been withdrawn; and the Board accepted withdrawal of Item 4.

Item 5. (Z0201103) L. Clayton Human and Jerry M. Hanna's request for change from AU to RR-1 on two acres located on the south side of Foggy Bottom Lane, east of Turpentine Road, which was recommended for approval by the P&Z Board.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to approve Item 5 as recommended by the P&Z Board. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD'S RECOMMENDATIONS
OF MARCH 11, 2002

Chairman Scarborough called for the public hearing to consider the recommendations of the Planning and Zoning (P&Z) Board, made at its public hearing on March 11, 2002, as follows:

Item 1. (Z0203201) Joel F. Wynne and Harvey A. Newman, as Trustees' request for change from AU, RU-2-10, and RU-2-15, to RU-1-7 on 42 acres located on the north side of Via De La Reina, east of SR 3, which was recommended for denial by the P&Z Board.

Chairman Scarborough advised the applicant will be given opening and closing comments, and public comments will be taken in between those comments; and inquired how many speakers does the applicant have; with Mr. Newman responding three. Chairman Scarborough advised the three speakers will be allowed to comment within the time constraints.

Bo Barnavon, representing Mercedes Homes, advised the applicant is Mercedes Homes; the other speakers represent the property owner and is the owner of the property; and Mercedes Homes is requesting a down zoning for the property on North Merritt Island currently zoned RU-2-15 and RU-2-10, high-density multifamily. He stated historically, Pulte Homes came before the Board for a 250-townhome project; and Mercedes Homes wants to develop the property as single-family residential, and voluntarily agreed to cap the units at 120, which is less than half of what is presently permitted on the property. He stated over the years there have been objections to development of the parcel; they tried as best they could with staff, homeowners, and surrounding neighbors to work out the issues; and they met with Commissioner O'Brien to resolve the disputes. He stated specifically one of the biggest issues is widening of SR 3 and the point of access to the property; Furman Road, which was specifically built to access the property, is not available as an access; the historical access is a road going no where; the property owner bought additional property to the south to give access to Via De La Reina; and the Board will hear from the people opposed to the project who do not want access at that point. Mr. Barnavon advised they have been worked with the County and Florida Department of Transportation (FDOT); met with Commissioner O'Brien, FDOT, Henry Minneboo, and Dick Thompson to try and develop the best traffic solution and access solution to develop the property at the low density; and what they have come up with is a proposal to bring a new entrance directly from Courtenay to the public. He stated the County is going to have a problem with the widening of SR 3, as a median will be placed in front of Via De La Reina which will prevent anyone from turning left and going south, so all the existing residents of Villa De Palmas, if they want to go south, will have to cross three lanes of traffic, go north and make a U-turn in order to go south; and that is a done deal according to FDOT as of last Monday. He noted a letter may have been submitted to Public Works, but he is not sure of that. Mr. Barnavon stated some residents seem to believe they may be able to oppose the widening of SR 3 and the placement of the median at that location; according to FDOT, that is a fait acompli; that is not something that is negotiable; so the County is going to have a problem out there for safety of the residents and potentially a serious traffic condition that they are hoping this proposal will help to alleviate. Mr. Barnavon advised as part of the planning of the project, the rezoning, and approval process of the subdivision, they are incorporating a fix for the County; this should be a simple approval process for rezoning because it is a reduction in density; and they were very surprised when the P&Z Board voted against it 6 to 4. He stated the record will show that even the people who sat on the P&Z Board are not opposed to the down zoning, but are concerned about the development of the property because of the traffic and other issues; and the homeowners in the area will bring up primarily four issues and problems they foresee. He stated one issue is school overcrowding; in this case it is a reduction in density so school concurrency should not be an issue; their point is this will be 1210 more units than are there now; but development is going to take place and it is either going to be single-family or a multifamily development; and the property is not going to remain a park, empty, or vacant forever. He stated the neighbors will cite traffic problems and congestion; they are trying to work with the County as best they can to address those issues with sound engineering principles; and the residents will object to the access by Via De La Reina, but for the County, it is a reliever, a fix. He stated once they put in the connection directly to Courtenay, they would not need the access at Via De La Reina; but it is a connection the County needs; and they are ready to provide it. Mr. Barnavon advised the fourth and final point will be traffic through the neighborhood; he met with the homeowners who raised some concerns, and went to the Homeowners Association meeting; their concerns are about residents driving through their community to get to Lewis Carroll Elementary; and to resolve that, they proposed a directional curb cut so they can only go in or out and cannot turn and go through the subdivision. He stated they are trying to work with the neighbors, the community, and staff to give the most rational and logical set of circumstances for development of the site; they definitely would like for the Board to agree with the rezoning which is a down zoning, and also vacate Furman Road, which is not a formal part of this process. He stated he does not know if they need to come back later or if the Board can mention it in whatever vote it may take, but they would like to have Furman Road vacated and given back to the property owner.

Harvey Newman advised he owns the property which he purchased 27 yeas ago; it was not something he just acquired; back then the intent was to develop the property at the allowable zoning with 500 units; and what Mercedes Homes is presenting is an extraordinary opportunity. He stated the Growth Management Plan allows six units per acre; that would be well over 245 units on the parcel; Mercedes is proposing 120 units or slight under three units per acre; and it is a wonderful opportunity to get the lowest possible density on the property. He stated they did not have to come to the Board to get zoning; they just wanted to put single-family residential development on the property; they could have gone with multifamily development which it is already zoned for; so this item is an extraordinary opportunity to let the property be developed in such a fashion that it would not be the density anticipated 27 years ago. Mr. Newman advised there are issues they can solve and work out with staff; he met with Mercedes and staff and they are optimistic about how they can solve the traffic problems; those were the problems put before them as obstacles; and they have come up with solutions that would not only resolve the issue on the parcel, but issues on adjacent properties as well. He stated he cannot see the logic of not going forward with such an extremely good offer; he wonders why Mercedes is making such a good offer; and it is almost too good to be true. He stated his thoughts are that they need to convince the people tonight that this is an issue that presents not only a down grading in zoning but an extremely good opportunity for the entire neighborhood. He stated there used to be Courthouse across the street on Courtenay and for years; whenever they met, they always wanted to link up some sort of entranceway to make that an intersection; those opportunities are now before the Board; and he hopes it will take advantage of the opportunities by letting Mercedes go through with its proposed plans.

Tim Wright requested to defer his presentation until the end. Chairman Scarborough advised Mr. Wright to work with the applicant because the rules allow the applicant to summarize. Mr. Wright advised he will waive his summation. Chairman Scarborough stated it is the right of the applicant rather than the Board to grant Mr. Wright that privilege.

Dorothy Wash, President of Villa de Palmas Homeowners Association, advised she sent an email explaining their objections in detail to the building of a new development on the north and west side of Villa de Palmas; they have the same objections they did in 2000; but this time they are told that it is going to be fewer homes and they should be pleased. She stated there is no reason to be pleased, down sizing or not; the school system has gotten further over capacity at Lewis Carroll Elementary; traffic problems are greater than they were in 2000; and since many new developments have been completed north of the Barge Canal, the bridge is experiencing problems again. She stated the bridge is scheduled for many repairs which will take approximately nine months and means one bridge will be unusable for a year or more; there is already congestion from SR 528 Causeway south on Courtenay Parkway which is directly in front of their entranceway; and at 5:15 p.m. yesterday it was bumper to bumper on their exit of Via De La Reina, so she and her husband made a U-turn and went back and around to Pioneer Street. Ms. Wash stated although they had a traffic light, there was no way to get out because of the bumper to bumper traffic at the intersection; it was all the way down to SR 520; she called the Sheriff's Department and asked if there was an accident or something wrong with the bridge; and she was told no, it is like that every nigh. She stated it was a nightmare; there was no accident or reason for it, but pure congestion at that time; so building 120 units will generate an additional 700 car trips right out in the middle of that traffic jam. She stated she heard a traffic light may be installed at Venetian Way and Courtenay Parkway in five or six years when the road is widened; if that is supposed to solve their problem, they do not see how it possibly could; that light would be about 630 feet from the light at SR 528 Causeway where they are experiencing the worst traffic jams on the Island; and if it is placed at Via De La Reina and Courtenay Parkway, that is about 1,000 feet away from the SR 528 light and possibly less from the light south of their subdivision on Pioneer Road. Ms. Wash advised the distance between traffic lights is supposed to be 1,300 feet; if a light is put on Venetian Way, the traffic will surely back up because there is another light 600 feet away right up onto the Causeway; they have seen it happen; and if Courtenay Parkway is widened, it will probably have to narrow down to two lanes at the front of their entrance to two northbound lanes in order to go over the bridge at the Barge Canal. She stated it will make their problem even more severe; the developer wants access through Via De La Reina; and safety is a concern, not only for them, but also for the drivers on Courtenay Parkway as well. She stated Commissioner O'Brien signed a memo in April, 2000, stating the building shall not have access to Via De La Reina because of the extreme safety concern for not only the Villa de Palmas entrance, but the new residences as well; she does not know what has changed his mind; when he wrote that, Pulte was trying to get 264 units in there; but it does not matter. She stated an additional 700 cars coming out of there will be horrible; and if the those 700 cars are put on the short entranceway, they will have a problem. She stated they made an analysis of the traffic accidents at the intersection of Courtenay and Via De La Reina, at the light at SR 528; they did that in 2000; and the increase in accidents has been steady since 1984. She stated at the end of 1999, there were 88 accidents reported in that year alone; and Villa De Palmas is an earshot from the sirens coming up Courtenay Parkway.

Chairman Scarborough advised Ms. Wash's time has expired; and inquired if there is a motion to extend her time.

Motion by Commissioner O'Brien, seconded by Commissioner Colon, to extend the time for Ms. Wash to complete her presentation. Motion carried and ordered unanimously.

Ms. Wash stated they hear sirens at least two or three times a week and stopping at SR 528; they have choppers that land at the church at their entryway to pick up injured patients; and they heard that several times this year already. She stated there is only one solution as far as they are concerned; and that is to leave it as it is and put a moratorium on any new building in the area until something can be done about the traffic jam at that spot. She stated it is terrible; if anyone has ridden it they would know what she is talking about; the problem is really that serious; not even one more home should be built in the area until something sensible can be done; and putting traffic lights 600 feet apart is not sensible. She stated there is a letter of agreement between Mercedes and the Board; it says, "the property will connect to Via De La Reina and ultimately to Courtenay"; it sounds like it is a done deal; and they did not know that had been decided. She stated it also says "the developer shall provide access to the property from Courtenay via undeveloped property owned by a third party. The developer has agreed to purchase said property immediately west of the subject property"; and inquired if he did that, does he have a contract on the property, and if so, why would he need to come near Via De La Reina. Commissioner O'Brien stated immediately west is the Labon property west of the Ennis property. Ms. Wash stated it says from Courtenay which means between the Ennis building and Race Track Gas Station; and inquired if the owner has a contract on it and is it a done deal; with Commissioner O'Brien responding he does not know. Ms. Wash inquired why is it in the agreement; with Commissioner O'Brien responding on rebuttal the developer can answer that question. Ms. Wash stated there is a 15-foot vegetative buffer along SR 518, but nothing about the 60-foot buffer behind Via Havarre, which they said they would put in if the item is approved. Ms. Wash stated page 2, in another paragraph. . .Commissioner O'Brien inquired what document is Ms. Wash reading from; with Ms. Wash responding the agreement between the Board of County Commissioners and Mercedes and Harvey Newman on behalf of Joel Wynne and Harvey Newman. Commissioner O'Brien stated the Board does not know what that is; with Ms. Wash responding whatever it is supposed to be, it is not signed, but it is a matter of public record and she has a copy of it. Commissioner O'Brien stated it must be a draft. Chairman Scarborough inquired if Mr. Enos has a copy of the agreement; with Mr. Enos inquiring if it is entitled development agreement per Section 62-605; with Ms. Wash responding yes. Mr. Enos advised that is not a subject of this meeting; it is a proposed development agreement for vesting purposes, which cannot be considered at this meeting. Ms. Wash stated it affects this issue; with Mr. Enos responding it has not been properly advertised; the BDP is the subject of this meeting and limits the site to 120 units; but the agreement Ms. Wash is reading from, although it has been proposed by the developer, has not been advertised and set for a public hearing. Ms. Wash inquired when it is scheduled for a public hearing can they talk about it; with Mr. Enos responding yes. Ms. Wash stated the agreement says, "they shall not exceed the capacity set by the County. The agreement is prepared in an effort to reserve capacity while the development is submitted for permitting." She stated the Board denied H&M's request to reserve road capacity a couple of weeks ago; now it is telling them he has the right to reserve it and everybody else has to wait for him; and H&M did not get that kind of consideration. She stated it is confusing. Mr. Enos stated it is a proposal the developer intends to make, but has not made officially to the Board. Ms. Wash stated he has written that he wants this rushed through; with Mr. Enos responding he wants it, but the Board has to agree with it at the proper time, as it is not being considered today. Ms. Wash stated it makes them feel everything is being done to accommodate Mercedes and not much for the taxpayers; most of them have been in the area over 30 years and have rights; unfortunately, they feel like they are being trampled on at this point. Commissioner O'Brien inquired why do they feel they are being trampled on; with Ms. Wash responding Commissioner O'Brien knows what their entranceway is like and what is going to happen to it; it is a short entranceway; he may tell them Diana Shores has it so why can't they; but Diana Shores entranceway is twice the length.

Commissioner O'Brien inquired if Ms. Wash's statements are about the use of Via De La Reina; with Ms. Wash responding in addition to everything else; but she is primarily concerned about the traffic because it is a nightmare. Commissioner O'Brien inquired if the Ennis property became part of the conversation; Ms. Wash was at the meeting they had with Mercedes; with Ms. Wash stating but nothing was settled. Commissioner O'Brien stated that is only part of it; and they have not seen the agreement Ms. Wash has; with Ms. Wash responding that surprises her why the Board did not see it because she could get a copy. Commissioner O'Brien stated it is a draft and not on the Agenda to be considered; and staff has not reviewed it yet. Mr. Enos stated the document was submitted to staff by the developer earlier this week; staff had discussions about it because it appeared that it was intended to act as a vesting document; staff decided it could not be considered as part of the BDP because it is separate and would require advertisement; and that is why it was not brought to the Board's attention. Commissioner O'Brien inquired if it is similar to that proposed by H&M; with Mr. Enos responding yes. Commissioner O'Brien stated the Board said no to H&M on reserving capacity. Ms. Wash stated yes, the Board said no to H&M, but the agreement says it would give the developer room. She stated the capacity is 43,900 cars; it is at 39,800 now; and if the development goes in, it will bring it up to 42,000. Chairman Scarborough advised Ms. Wash that the agreement is not before the Board this evening. Ms. Wash gave pictures to the Board, but not to the Clerk.

Shirley Weinert advised she has been a resident of Villa de Palmas for 16 years and watched the traffic get worse and worse; she does not object to the down sizing and is happy about that; but she is concerned about the ingress and egress. She stated they were told they were going to close Via De La Reina and put an office building there, and they would use the new connector and go out at Venetian Way; that is frightening; there are 294 homes in Villa de Palmas, 26 condos north of their subdivision, and over 200 homes in Sykes Cove to the south; and they have two ways to get out of there--Pioneer and Via De La Reina. She stated Via De La Reina is a nice wide street, but Pioneer is very narrow; and if Via De La Reina is closed and they are forced to use Pioneer or the new road to Venetian Way, she shutters to think what the traffic is going to be like. She stated in the past couple of months they had bad house fires on Via Havarre; that is a very narrow street; if the fire trucks go through there, nobody gets out; and pleaded with the Board, whatever it decides to do, not let them block Via De La Reina. She stated she supports what Ms. Wash said.

Bob Davis stated he supports what Ms. Wash said except for the draft that has not been presented to the Board. She stated the applicant commented it is a down sizing, but that is not correct; it is going from AU to RU-1-7 and is upsizing; and he objects to upsizing from AU to RU-1-7. He stated he objects to the traffic they have currently, and the widening of SR 3 that is going to happen; however, there is no money for rights-of-way or construction funds to widen the road; and the interchange at SR 528 and SR 3 is not part of the widening project. He stated a lot of people think it is going to happen, but it is not; it goes from Skylark to Heidi Lane and stops; and that is where the old County Courthouse is. He stated anything north of that is another project down the road; he talked to Mr. Long, FDOT Project Manager; the design for SR 3 is between 30 and 60% done and is not at 100%; and they are going to have a meeting on Via De La Reina to get into Villa de Palmas. He stated for him to go south when the widening happens he will have to go to SR 3, make a right turn, go to Venetian Way, do a U-turn, and go south or go through Pioneer Road. Mr. Davis stated the applicant's traffic is going to happen the same way with his proposal; he is not sure if Mr. Newman owns the AU parcel; but he has not owned it for 27 years, which he knows for a fact. He stated school overcrowding is not his concern because he does not have children, but it is a concern when all the traffic they have now from the schools, especially Merritt Island High School, goes to North Merritt Island at the same time as Kennedy Space Center and Sea Ray Boats employees get off. He stated if there is one accident or a bridge stuck in the up position, everything stops and is deadlocked beyond Pioneer; and he spent 20 minutes not more than half a block from Via De La Reina to get into Villa de Palmas because the bridge was stuck and he could go nowhere. He stated he objects to the 120 unit development until the County finds out what it is going to do with traffic; traffic is the issue; if they can get the Ennis property, that will help 100%; but they will still have a traffic problem there even with that access.

Tom Page, Vice President of Villa de Palmas Homeowners Association, advised his main concern is traffic and schools; and gave scenarios of traffic congestion, explained a document showing streets in the area, and identified schools, the County building, the Beeline, and the Barge Canal. He stated the corridor is in distress; Mr. Barnavon solved two of his problems, but not well; and he opposes the plan for Mercedes to locate a development between Villa de Palmas and the Beeline off North Courtenay Parkway for two valid reasons, traffic congestion and overcrowding. He stated North Courtenay Parkway, from SR 520 to the Beeline is at gridlock level; he drives that corridor daily; numerous levels of traffic studies have been made to justify more development; but the truth is North Courtenay Parkway is saturated with traffic. He stated when the Barge Canal Bridge opens up, North Courtenay Parkway becomes a parking lot; and sometimes the bridge gets tuck in the up position which creates a situation that halts all vehicular traffic in the community. He stated northbound vehicles are often trapped cross North Courtenay Parkway and Pioneer Road intersection; yesterday's incident is common as mentioned by Ms. Wash; and the intersection at Pioneer is signalized, but the traffic gets trapped in the intersection and cannot move. He stated the bumper to bumper condition stretches from SR 520; it is becoming a way of life; they fear for the safety of North Merritt Island residents concerning emergency vehicles accessing their homes; and to further aggravate the conditions, the planned Barge Canal Bridge repairs will reduce the bridge to two lanes for 160 days this year. Mr. Page advised they cannot accommodate another 720 vehicle trips from the Mercedes development; school overcrowding is already a reality; and Mr. Barnavon said time will take care of that, but he does not believe it. He stated the school budget is in dire straits; growth is strangling the school system; he was encouraged when the joint planning agreement tying future growth to school capacity was introduced; and he does not know where the plan stands now, but it is time for logic to prevail. He stated now is the time to exercise that agreement; Lewis Carroll Elementary is over 125% capacity now; and without any new housing developments, more overcrowding is projected for next year. He stated Merritt Island High School is overcrowded as well; and inquired if it is fair to allow more family homes when the schools are overcrowded, or to subject present residents' children to more school overcrowding. He stated Commissioner Higgs said if they want quality jobs and a quality community, they have to have quality education; and he applauds her for that; and for the sake of their community, they have to bite the bullet now; the problem will not go away; the quality of life on North Merritt Island is in jeopardy; growth is choking them to death; and growth is not a sacred cow for the community but a yoke around their necks. He requested the Board vote against the development and any other development that will cause further degradation to their quality of life until a solution to the problems can be found.

Arthur Hatcher complimented the applicants for the drawing and rosy pictures; and stated what caused all the problems is the Board allowing all the development to go on. He stated the Board should not allow any more development until the roads and schools are substantial; if it allows them to build more apartments, it will create more problems; people will be walking to get from SR 520 to SR 528 which may be quicker than driving; and requested the Board put a moratorium on all building until roads are caught up and school construction is caught up. He stated that is the logical way to do it. He stated Commissioners should not be persuaded by contributions to their political campaigns; and requested the Board not allow any more construction until conditions improve.

Dr. Rawal advised she has lived in Villa De Palmas since 1983; it is easy for a builder to build, make money, and leave the present and new residents with the problems for the rest of their lives; and it is not fair because it is important to take into consideration the wishes of the residents in Villa De Palmas. She stated the traffic congestion is already there; there is no safety while driving; and requested the Board take all the information that the residents have given it about traffic problems, safety, and time spent while coming and going to and from work, before it makes a decision about allowing more building in the area. She stated it is important to maintain the gate that is there for Villa De Palmas entrance; and requested the Board respect the wishes of the residents.

Ila Martin, representing another Homeowners Association, stated their development is bounded on the east by Sykes Creek, on the north by SR 528 Causeway, and on the west by the land in question; they use the entrance for Villa De Palmas coming and going on Via De La Reina; and inquired if anyone on the Board has a financial interest in the project. All Commissioners responded no. Commissioner Carlson stated if any Commissioner has a conflict, he or she must declare the conflict and abstain from voting on the item. Ms. Martin stated she has been out there between 7:00 and 8:00 a.m. and seen cars backed up two abreast trying to get out of the development; and even now it backs up to Via Havarre, and seems impossible to go north or south while people are trying to get in. She stated it is a nightmare; to add more cars is insane; and it should rename Courtenay Parkway the highway of the living and dead.

Tim Wright, representing Harvey Newman, owner of the property, advised this is a quasi-judicial hearing; and the Board is here to take testimony as to whether or not this rezoning application should be granted. He stated it is unusual for citizens who oppose the project, the developer, and the staff to all agree that less development is a good thing; what is being requested is a downzoning, proposing less development, not more; and staff's report points out that the potential project will result in less density if the property is rezoned, as well as less trips than the existing zoning on the property. He stated the reason the Board has rules and concurrency requirements is so developers and property owners know what they can and cannot do; and the reason it has those rules, is so it does not have to rely on citizens who come and say they saw this and it is bad, they do not have enough water pressure, or they could not get in line at the gas station. He stated the reason for specific rules is to have objective evidence as to whether or not the state of the world is okay; and the staff report, which he would request the Clerk move into evidence, shows the Board that in fact there is concurrency right now. Mr. Wright advised there are available trips; there is sufficient schooling in that it is a downzoning; there has not been evidence put before the Board to show there is no concurrency; and there is no evidence to show that downzoning the property is a bad idea. He stated if the applicant was asking for more density then all those statements about concurrency and traffic problems might be relevant; but they are not because it is a downzoning with less density and less trips. He requested the Board make its decision tonight in isolation; stated it is a rezoning request, not a building permit approval, plat approval, or site plan approval; it is simply a rezoning request; and requested the Board look at it for what it is and not what it might be in the future. He stated the Board does not have to make a policy decision tonight as to whether or not all the trips were used up whether this developer might or might not get the Board to reserve trips when he goes through the development process; what is before the Board tonight is the rezoning; and they request the Board determine from the evidence presented that downzoning in this case is a good idea. He requested staff tell them, if they believe there are concurrency or development issues and where the proposed rezoning would be inconsistent with the Code or Comprehensive Plan, what those are, so they can address them with the Board.

Commissioner O'Brien requested Commissioners look at the aerial photograph presented by the applicant so they will understand what everyone is speaking about. He stated the area marked in white is what they are discussing; Furman Road is at the top of that area and follows SR 528; and that is what they want to vacate. He stated the road cannot be used by anyone for anything; it comes right to SR 3 so close to the entranceway to SR 528 that it would be an absolute danger; and inquired if Mr. Thompson agrees; with Traffic Engineering Director Dick Thompson responding yes. Commissioner O'Brien stated the Board should refuse to let anyone use Furman Road even for construction crews; on the left hand side of the photo is the Labon property that comes up to Via De La Reina; and that is the street everyone is talking about and do not want it accessed by the new development. He stated working up from Via De La Reina on the left side of the photo there is a grouping of trees; that is the Ennis property ;the Ennis property is in direct alignment with Venetian Way; and FDOT, in its SR 3 plan proposed to the public, said there shall be a light at that intersection. He stated the Ennis property is the only ingress/egress that the development truly has because in April 2000 the Board passed a resolution saying that ingress/egress to Via De La Reina shall not be allowed; and if it did that, it may as well pile the body bags up on the corner. Commissioner O'Brien stated once the division goes down the middle of SR 3 and the light placed at Venetian Way, all the cars would race along Courtenay up to the corner and try to make a U-turn before they get hit by somebody crossing three lanes of traffic to get there; the average speed, aside from the busier times in the mornings and afternoons, are close to 45 or 55 mph; and that is not the posted speed, but that is as fast as they go to try and beat the bridge. He stated traffic jams referred to occur in the mornings because of Kennedy Space Center traffic and schools; and between 3:30 to 5:30 p.m., people are coming from Kennedy Space Center in the opposite direction while the school students are trying to get home. He stated he, Mr. Minneboo, and the developer met in his office; Ms. Wash was at that meeting and so was Tom Page and other members of the Homeowners Association; and unless the developer can come to terms with the County about the ingress/egress to that property via the Ennis property, he cannot in good conscience go any further than to deny the request tonight. He stated to approve it without access via the Ennis property would put many lives at risk now and in the future; it is an extreme safety concern for everybody; and if they do not have that access and bring construction vehicles for pools, screen porches, fill dirt, etc. that have to cross that traffic and make a U-turn, it may be fatal. Commissioner O'Brien stated his concern is for the residents, the developer, and those who may buy in the development. He stated the comment that he changed his position is not true; Ms Wash should know that is not true; his position has never changed; and he has remained very firm about the ingress/egress to the development. He stated they cannot use Via De La Rein or any part of it for access. He stated somebody said they are going to block Via De La Reina; and he does not think the Board would want to do that. He stated the Board is not going to bet involved in the proposed binding development plan tonight; like H&M, the Board is not about to vest any kind or rights to anybody; and they have to proceed at their own risk. He stated the Board cannot create a moratorium on building until it hits the concurrency numbers; but until SR 3 is widened, it needs to be cautious about how any kind of construction proceeds in that area. He stated the Board cannot say it is not going to allow a person to build because there is a lot of traffic on the street; and there are rules and regulations concerning concurrency with traffic and how it affects the Board's decision. Mr. Thompson stated he is not an expert on concurrency, but believes the Board has to have solid footing to make a decision if it is going to stop construction or development along a roadway once it reaches maximum capacity for the roadway determined by a traffic study. Commissioner O'Brien stated there was a comment made when H&M came before the Board that indicated concurrency for single-family homes is 125%; and inquired if that is correct. Zoning Official Rick Enos stated that is true in many cases, but he does not think it is true for Courtenay Parkway because it is a hurricane evacuation route. Ms. Busacca stated she believes it is 110% in which diminimus impacts may be considered; and diminimus would be a single-family home; however, in this instance, the development would have to go through concurrency review. Commissioner O'Brien inquired what does diminimus mean; with Ms. Busacca responding it means tiny; and a single-family home is determined to be a diminimus impact by the Florida Statutes.

Commissioner Higgs requested Ms. Busacca explain when concurrency and levels of service were established, and how close it might be on Courtenay Parkway. Ms. Busacca advised the Board established concurrency and levels of service for transportation in 1988 as part of the 1988 Comprehensive Plan; at that time Courtenay Parkway was operating well below the level of service established; since that time, additional development has caused Courtenay Parkway to be within 3,000 trips of the maximum allowable volume; and the Concurrency Program says a project may be vested until concurrency reaches 85% of the maximum, at which time vesting cannot occur. She stated because Courtenay Parkway is over 85%, vesting cannot occur; that was the point of the development agreement with H&M; and that would be the request of any other developer who wanted to vest their project through the site plan or subdivision process so they could move to the building permit process. Commissioner Higgs inquired if concurrency is established at the building permit stage and not at the zoning stage; with Ms. Busacca responding that is correct; that is the point at which staff begins to put the trips into the concurrency system and at which time a building permit would be approved, deferred, or denied. Commissioner Higgs stated Courtenay Parkway is at level of service E; that is what is acceptable for that roadway; and inquired if all the roads are acceptable at level of service E; with Ms. Busacca responding no, there are different levels of service, depending on the type or location of the road; and the level of service is the number of vehicles on a certain roadway per hour. Commissioner Higgs inquired if level of service D would be moving faster and more steadily than E. She stated in 1988 those on the Board agreed that level of service E would be established for Courtenay Parkway; and it has not been amended since then. Ms. Busacca responded that is correct. Commissioner Higgs inquired if the Board can change the level of service if it does not like E and could it look at other roads.

Chairman Scarborough stated how traffic flows is more than just the number of vehicles and number of lane miles; any good traffic engineer looks at fluid dynamics, where curb cuts are, whether they have to race out and make a U-turn creating horrible dynamics, etc.; and what is done with traffic is more than saying there are so many lanes and so many cars. He stated they can do things that are horrific to a roadway that could be in part addressed in a binding development plan; and it may not be only the level of service, but also safety issues. He stated it is level of service E which is nothing to be proud of; it starts with A and works down to E; E is not very good; and this project would consume almost all of E. He stated he agrees with everything said by the public; it is statistically a bad road; there is a second thing of analyzing fluid dynamics and how to create a more traffic prone environment because of the way traffic is directed; and all of it is relevant and not just isolated items.

Commissioner Carlson stated H&M did a traffic study when it wanted to vest capacity; the study showed they had more capacity; and inquired when does the Board stop folks from having traffic capacity increases because they hire a traffic engineer who does not agree with the County's level of service. She stated based on some of the input from folks, timing is an issue; Kennedy Space Center, Sea Ray, and Lewis Carroll Elementary are all coming out on the road at the same time; and inquired if there is a lot of other analyses that go into establishing level of service. She stated there is a community timing issue that could provide a better level of service if they go out to the community and ask businesses to let employees off at certain times; and inquired if there is any analysis that goes into how the road is used when determining a level of service. Mr. Thompson advised that is something that could be considered, but it is not a given; when doing an analysis, they look at number of trips per hour or total volume in 24 hours; and if the volume of a road is spread evenly over 24 hours, it is going to give a different level of service than it would if it was all done in a six-hour period. He stated the point is good and something that could be given consideration, but they would need cooperation from those entities creating the peak flows. Commissioner Carlson stated the Code says the applicant has to go out and do a traffic study; they come back with level of service number below the 85% because they were out there at midnight; and inquired what would staff do; with Mr. Thompson responding the peak hour flows are considered in that study along with the total. Commissioner Carlson inquired what peak hour flow time frame; with Mr. Thompson responding it varies from road to road, but typically between 3:00 p.m. and 6:00 p.m. Commissioner Carlson stated it may not capture the gridlock the Board has heard about; with Mr. Thompson responding possibly. Commissioner Carlson noted that was just a point of discussion.

Commissioner O'Brien stated someone made a comment that this is not a downzoning; the property is zoned RU-2-10 and RU-2-15; and inquired how many units can they put on the property right now; with Mr. Enos responding 264 units. Commissioner O'Brien inquired how many units are they asking for; with Mr. Enos responding 120. Commissioner O'Brien stated that is a downzoning, but testimony by the public said it was not; the property that used to be owned by the Labon family is zoned AU at this time; and that is the two acres in the middle of the L shape on the left side of the photo. Mr. Enos stated that parcel abuts Via De La Reina and is zoned AU. Commissioner O'Brien inquired what can be done with AU property; with Mr. Enos responding on that property there could be agricultural uses; if it is a nonconforming lot of record, they could build one single-family residents; it is not a nonconforming lot of record, but a parcel that was cut out in the past inconsistent with the current zoning; so it may not have any use available for it right now without rezoning. Commissioner O'Brien stated presently they can build 264 units, but have no access; and inquired how does the law affect that; with Mr. Enos responding they could use the AU parcel as part of a subdivision access if there was no other access. Commissioner O'Brien inquired if the property is landlocked without the two acres of AU; with Mr. Enos responding yes. Commissioner O'Brien inquired if they use the AU parcel for access, will it go to Via De La Reina; with Mr. Enos responding yes. Commissioner O'Brien inquired if the Board can say no to that; with Assistant County Attorney Eden Bentley responding when there is no other access available, it would be a question of taking if the Board denies access. Commissioner O'Brien inquired if the Board says no to that, would it be a taking; with Ms. Bentley responding it could be if there is no other access. Commissioner O'Brien stated the other access available at this time is the Ennis property; with Ms. Bentley responding that parcel is not part of this rezoning request, and she is not sure it is owned by the developer at this time. Commissioner O'Brien stated the property is for sale. Ms. Bentley stated since they do not own it at this time, they have no access via that parcel.

Commissioner Higgs stated it was referenced by the lawyer for the owner to put staff's comments in the record; the Board does that anyway; and in staff's comments, there are issues about compatibility that were previously discussed when the Board look at the property and established a buffer between the RU-2-12 and RU-1-11 abutting properties. The developer is proposing RU-1-7; those are smaller lots and homes; and she questions the compatibility between the two developments. She inquired how do they intend to address the compatibility issue, and are they intending to adopt any kind of buffer between the two properties to deal with it; with Mr. Barnavon responding they were informed this past week that in the previous proceedings relative to the property, part of the approval process done by a BDP, as referenced in some documentation, was that the previous Pulte site plan was given approval subject to a 60-foot buffer from the existing residential development; and that was based on a townhouse project. He stated they are not looking at a 60-foot buffer; it does not make the numbers work; but the County Code requires a 15-foot buffer between all residential subdivisions; and the plan he has does have that 15-foot buffer incorporated. Mr. Barnavon stated it is not actually correct that the lots are smaller; they are narrower, but they are not necessarily smaller; nor will the homes be smaller. He stated the homes contemplated are equal to or will have more value than the existing surrounding homes, with the exception of those that have canal frontage; they are looking at building 1,800 to 2,500 square-foot homes; and the fact that the lot is narrower does not make it smaller or less expensive. Commissioner Higgs stated if the Board were to contemplate it tonight, would the developer make a commitment on the size of the homes on lots that abut the other subdivision; with Mr. Barnavon responding yes, they are open to discuss that and make a voluntary limitation on minimum square footage. He stated that is not an item they discussed, but they will be happy to explore it and consider it. Commissioner Higgs inquired if the developer is committed to the lots abutting the subdivision to the south being 50-foot lots, and what would be done in the 15-foot buffer. Mr. Barnavon advised the present Code calls for the 15-foot buffer to be kept as a separate tract and be maintained by the Homeowners Association; it would not be part of a lot; if they want to landscape or berm it, put a wall, etc., there are details of the site planning process they would have to go through; but they have not gotten to that detail at this time, but will be happy to address those issues at that point. He stated if the Board has something it wants to place as a constraint, they would be open to discussing and approaching that. Commissioner Higgs stated staff's comments raised by the attorney who spoke raised the issue of compatibility and if an opaque vegetative buffer would be maintained to establish compatibility; with Mr. Barnavon stated he can appreciate that, but he would remind the Board that if they do not develop it as single-family. . .Commissioner Higgs commented they would have a 60-foot buffer. Mr. Barnavon stated not actually because that 60-foot buffer was for a specific site plan. Commissioner Higgs stated if the Board does not adopt any change tonight, the plan remains in place. Mr. Barnavon stated his point is if they do not do it as single-family, the owner will look for a solution to the property; the next guy who comes along, and it may be Mercedes because they are looking at alternative plan B if this does not go through, is going to develop the property. He stated if the Board denies the rezoning, the property could be developed under the current zoning with a site geometry plan to do it as single-family detached condos; they are doing those in Melbourne and did them in Rockledge; so someone could develop 264 units without access to Courtenay under the existing zoning and never be in front of the Board again. He stated they are not asking for the Board to grant them something that is not already permitted; and the reason they are here is to make the property more consistent with the surrounding neighborhood, downzoning it to single-family residential, and living by the single-family residential restrictions in the Zoning Code and Comprehensive Plan. He stated the traffic pattern they are proposing is good for the community; the placement and alignment of the entrance is good for the community; and he can appreciate the concerns of the neighbors as far as the problems that exist, but those problems were not created by the property owner and will not go away whether the Board approves the zoning or not. He stated they are trying to help the situation and not cause more problems.

Chairman Scarborough inquired if the binding development plan he has is what Mr. Barnavon presented. He stated it fails to address most of the things discussed tonight. Mr. Barnavon stated that is correct; he did not expect the Board to approve it without discussion; he expected the Board to hear the issues and concerns; and his wish is to have the Board approve it subject to incorporating things in the binding development plan and resubmitting it at the next meeting. Chairman Scarborough stated that is fair.

Commissioner Carlson inquired if the developer wishes to develop the property tomorrow without access to Courtenay Parkway, could they create a development without coming in front of the Board; with Ms. Busacca responding yes. Commissioner Carlson inquired how would they get a connection to Via De La Reina without Board approval; with Mr. Enos responding the subdivision plat would come before the Board at a public hearing. Ms. Busacca stated subdivision plats are put on the agenda, but not under public hearings although people can speak to them; and the approval would require two considerations, the preliminary plat and the final plat. Commissioner Carlson inquired if what the applicant said is not true; with Ms. Busacca responding they have the right to develop the property if they were to plat it; and it would require two Board actions for the plat to be approved. Mr. Barnavon stated the property can be developed without a plat, and the Board would not see it. Commissioner Carlson stated her question is how do they get access to their property without going through the Board. She stated there has been a lot of discussion about connecting to existing roads; and that should take a Board action of some sort, or is she imagining things. Ms. Bentley stated it could be an easement procedure. Commissioner Carlson inquired if they bought the AU property, could they get a driveway permit and create their road; with Ms. Bentley responding that is correct.

Chairman Scarborough stated the applicant said they did not incorporate all the staff's comments and things; they are not new issues and would have to come back with a binding development plan; and unless there is a motion to deny, it would be prudent for Commissioner O'Brien to lead the way and meet with the applicant and homeowners associations. He stated he is not saying there is a binding development plan that is going to work, but somehow, by the applicant's admission, this BDP fails to address items discussed and offered.

Commissioner O'Brien stated it would be appropriate to table the item because a major concern is safety; to consider having ingress/egress to Via De La Reina and SR 3 with future construction already planned, the safety of all parties will decrease almost twofold; so he would like to table the item to July to see if there is a better BDP, compatibility along the southern line, buffer, access, and evidence of good faith effort by the County and developer to retain the access through the Ennis property to align with Venetian Way. He stated it has to do that; there is no other alternative unless the Board wants to put people's lives in jeopardy; and he cannot do that no matter what the law says. Mr. Barnavon advised July would kill the project; they would like to move forward with our without approval or not do it and let somebody else develop the property; or they could come back with multifamily development. He stated one of the problems they have is that staff has certain opinions as to what should happen, and the residents have other opinions as to what should happen; they are shooting at a moving target; and one of the reasons they are here is to air those issues. He stated if the Board approves the rezoning, it would still have the same issues of access; the only issue before the Board tonight is zoning; and the only issue in zoning is the density; and that is why they have reduced the density to 120 units. He stated the access, buffering, and all other issues do not have to be specifically addressed at the zoning level; and those are addressed when the project comes to the Board.

Chairman Scarborough stated the County does not do it that way; right now the Board wants to see the BDP and wants the residents to see it; and it is not where the Board is as a matter of procedure. Mr. Barnavon advised they will withdraw the application because it does not look like it will get approval.

Commissioner Higgs stated she cannot approve it without a BDP; procedurally the Board sees the plan and reviews it; and she would be willing to look at it and continue the item for 30 days to see if the BDP can ensure compatibility. She stated downzoning is a good idea; and if the compatibility and safety issues referenced earlier could be properly worked out, she would be willing to do it. Mr. Barnavon stated 30 days they will be happy to work with someone; and inquired who would they work with; with Commissioner O'Brien responding with the County staff to acquire the access. He stated FDOT will pay to install a traffic light at Venetian Way; the County said it will share in building the roadway across the Labon property; and if the developer could come up with the money for the Ennis property, the Board would meet its responsibility for public safety, and the developer would meet his responsibility for ingress/egress. He stated tonight the developer has not shown good faith effort to accomplish that task; with Mr. Barnavon responding nobody asked him if he did, but he did. Commissioner O'Brien noted Mr. Barnavon could have said that any time. Mr. Barnavon advised the assumption was that it would all be based on the access to Courtenay Parkway; he would voluntarily say if that is what the Board wants to see in the BDP, that the zoning must require access to Courtenay Parkway; they do not have a problem with that. Commissioner O'Brien stated access is critical at Venetian Way. Mr. Barnavon stated they will be happy to state that the access will be at Venetian Way in the BDP. Chairman Scarborough recommended Mr. Barnavon put the words on paper, and let the people and Board see it. Mr. Barnavon stated they will give it another 30 days.

Motion by Commissioner O'Brien, to continue Item 1 until May 2, 2002.

Chairman Scarborough inquired if there are final comments from the Board before he accepts a second; with Commissioner Carlson inquiring if SR 528 supposed to be six-laned. Commissioner O'Brien responded not for ten or fifteen years. Commissioner Carlson stated he question has to do with compatibility to a six-lane highway; it is extremely close to put single-family homes against SR 528 if it is to become six lanes; and the Board will hear a lot of flack from people who want a noise barrier. She noted that should be considered.

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

The meeting recessed at 7:12 p.m., and reconvened at 7:26 p.m.

Item 2. (Z0203202). Moved to North Merritt Island Agenda.

Item 3. (Z0203301) Brevard County Board of County Commissioners on its own motion on December 18, 2001, authorized administrative rezoning on property owned by Leland Hildreth from BU-1 to BU-2 on 0.583 acre located on the west side of SR A1A, south of Oak Street, which was recommended for approval by the P&Z Board with a BDP as submitted by the owner.

Commissioner Higgs advised she wants to put on the record that she talked to Mr. Torpy, and her office talked to some of the abutting residents; and the Board has a letter in the package from the people who live in the area and who also met with Mr. Torpy. She stated the Settlement Agreement with minor changes will make the zoning a compatible use and will not be detrimental to the area, so she will move approval of the agreement.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to execute Settlement Agreement with Leland M. Hildreth with a Notice of Voluntary Dismissal, providing a restriction to use the property for recreational vehicle storage only and providing additional vegetative buffering. Motion carried and ordered unanimously. (See pages for Agreement and Notice of Voluntary Dismissal.)

Commissioner Higgs suggested changes to the binding development plan (BDP) to reference watercraft and recreational vehicles in the whereas recitals, add "opaque" vegetative screening that would reach a height of 96 inches or 8 feet in one year to item 3, and adding item 10 requiring the applicant to accomplish the plantings within 90 days.

Attorney Richard Torpy, representing Leland Hildreth, the property owner, advised they have no problem with that; and clarified that the drawing looks like 36 inches, but they know it is 96 inches. Commissioner Higgs inquired if they will accomplish the plantings within 90 days; with Mr. Torpy responding his client has agreed to the 60 days first requested.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve Item 3 as recommended by the P&Z Board, with a binding development plan amended to include watercraft, opaque vegetative screening to reach 8 feet in one year, and requiring the applicant to accomplish the plantings within 60 days. Motion carried and ordered unanimously.

Mr. Torpy presented Ms. Bentley with the original Settlement Agreement, Voluntary Dismissal, and filing fee; and expressed appreciation to Commissioner Higgs for working with him and his client.

PUBLIC HEARING, RE: ORDINANCE ADOPTING SIXTH SMALL SCALE PLAN
AMENDMENT OF 2001 (01S.6)

Chairman Scarborough advised of a request from Attorney Tino Gonzalez to continue the public hearing on the ordinance for 60 days.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to continue the public hearing to consider an ordinance adopting the Sixth Small Scale Amendment of 2001 (01S.6) until May 23, 2002. Motion carried and ordered unanimously.

Item 4. (Z0203101) Michael P. and Laurel A. McCracken's request for change from GU to AU on 2.38 acres located on the west side of Florida Palm Avenue, north of Areca Palm Street, which was recommended for approval by the P&Z Board.

Mr. Enos advised the request for AU is to be able to install an eight-foot fence, as the current zoning only allows a six-foot fence. Commissioner Colon stated even if the rezoning is approved, it does not guarantee they will get a permit for the fence. Mr. Enos stated there were questions about wetlands on the property, but zoning just deals with height of the fence. The applicant stated the site plan for the fence has been there since 1995 and the wetland issue was misrepresented.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to approve Item 4 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 5. (Z0203102) Guillermo Solano's request for change from GU to AU on one acre located on the southeast corner of Detroit Street and Hartville Avenue, which was recommended for approval by the P&Z Board.

Mr. Enos advised GU does not permit guesthouse, but AU does; and there are some AU zoning in the neighborhood.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to approve Item 5 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 6. (Z0203103) Removed from the Agenda.

Item 7. (Z0203104) Michael Weisberger's request for change from RU-1-9 to TR-1 on 0.35 acre, located on the southwest corner of Irwin Avenue and Turnbull Road, which was recommended for approval by the P&Z Board.

Mr. Enos advised the request for TR-1 is to put a mobile home on the property; and it is a mixed-use neighborhood, with some single-family homes and some mobile homes.

Motion by Commissioner Higgs, seconded by Commissioner Colon, to approve Item 7 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 8. (Z0203105) Power Play Properties, Inc.'s request for change from AU and TR-1 to all AU on 67.083 acres located on the south side of SR 524, west of Friday Road, which was recommended for approval by the P& Board.

Chairman Scarborough advised staff made a notation about animals away from homes; and inquired if Mr. Enos wants to explain that; with Mr. Enos responding the request is for AU for a dairy farm; the P&Z Board was concerned about where the animals would be housed because there is a single-family subdivision to the south and a mobile home subdivision on the east perimeter of the property.

Leo Calligaro, representing the applicant, advised there is a borrow pit in the area; the animals are going to be free grazing; and the only place they will go is to the milking barn on the east side approximately 300 feet from the borrow pit.

Chairman Scarborough inquired how close will the animals come to the neighborhood; with Mr. Calligaro responding the parcels are five acres and the animals will be free grazing; they are going to put the fence ten feet inside their property line; there will be 15 pastures and the animals will be on rotation; so they will probably be there once every three months. Chairman Scarborough inquired if Mr. Calligaro would make an agreement that the animals would not be within a certain distance from the homes; with Mr. Calligaro inquiring what is the distance. Chairman Scarborough inquired if the P&Z Board discussed a distance; with Mr. Enos responding there was no discussion on a specific distance. Chairman Scarborough stated it needs to be defined, otherwise it will be ambiguous.

Mr. Enos stated there are two issues, the location of the barn because that is where the animals will be concentrated and where most of the smell will be; and Mr. Calligaro offered no further away than 200 feet from the borrow pit. Mr. Calligaro explained a plan of where the barn will be; stated they will be milking the cows twice a day, then they will go back to the pastures; and they own about 100 acres total.

Commissioner Higgs inquired if there is a commitment that the fence will be a certain number of feet away; with Mr. Calligaro inquired what is the distance. Commissioner O'Brien inquired if Mr. Calligaro would be willing to set the fence on the inside of his property line if there was a dirt road which he could use for the herd, which would be a minimum of ten feet. Mr. Calligaro stated on the south side is a canal; they are not going to put the fence on the property line; they are going to leave about ten or fifteen feet from the property line to be able to maintain the fence on both sides; and they want to do that for their own purpose to keep the vegetation low and the area clean.

Discussion ensued on the location of the fence, a proposed road between the homes to the south and the property, and the private canal on the other side of his property.

Chairman Scarborough inquired if the Board could get an agreement with Mr. Calligaro that the animals will not be closer than 25 feet from the individual lots. He stated the canal is about 15 feet, and at least 10 feet would be needed to run the vehicles along the fence. Mr. Calligaro stated the canal is not on his property so he will not be close to it because he already has a canal that is 15 to 20 feet wide; and he is proposing another 15 feet on his property, so there will be about 30 feet. Chairman Scarborough stated that will be fine; and he was counting the canal and roadway as part of the 25 feet. Mr. Enos advised the canal is on the south side of Mr. Calligaro's lot line and is probably on the lots of the single-family subdivision as an easement; and he heard Mr. Calligaro say the fence will be at least 15 feet inside his property line adjacent to other single-family or mobile home lots. Mr. Calligaro stated he is going to do 15 feet on the east side, all of the south boundary, and the west side for his own purpose. Chairman Scarborough inquired if Mr. Calligaro would enter into a binding development agreement as to the location of the milking barn and fence; with Mr. Calligaro responding he can bring the site plan so the Board will have the right location of the milking barn and everything that is there. Chairman Scarborough advised the County Attorney thinks the agreement should come back, so the Board can approve the rezoning contingent upon an agreeable BDP. Mr. Calligaro inquired if that means he cannot do anything, because he has machines and made commitments already, and the closing on the property is tomorrow. Chairman Scarborough stated he wants the agreement in place and reviewed by staff and the attorney even if it does not come back to the Board. Mr. Calligaro stated they can do it next week and he will sign anything the Board needs. Ms. Bentley stated she and Mr. Enos will work it out and if there is a problem, the zoning will not be approved. Chairman Scarborough advised Mr. Calligaro that staff will work with him on a BDP; and if it is not agreeable to him, he will not have the zoning that may be approved contingent upon execution of the BDP.

Motion by Commissioner Colon, seconded by Commissioner O'Brien, to approve item 8, contingent upon receipt of an agreeable BDP with Leo Calligaro regarding the location of the milking barn and fence. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: NORTH MERRITT ISLAND DEPENDENT SPECIAL DISTRICT
BOARD RECOMMENDATIONS OF MARCH 14, 2002

Chairman Scarborough called for the public hearing to consider zoning recommendations made by the North Merritt Island Dependent Special District at its public hearing on March 14, 2002, as follows:

Item 1. (Z0203202) Brevard County Board of County Commissioners, on its own motion on January 8, 2002, authorized administrative rezoning on property owned by Ernest M. and Marion R. Gaskins, from PIP to BU-2, and small scale plan amendment to change the Future Land Use Map for 0.69 acre located on the east side of North Courtenay Parkway, north of Smith Road, which was recommended for approval by the LPA and denial of small scale plan amendment by the NMI Board.

Commissioner O'Brien advised the BU-2 is consistent, so the plan amendment is not necessary.

Motion by Commissioner O'Brien, seconded by Commissioner Higgs, to approve Item 1 as recommended by the NMI Dependent Special District Board; and deny small scale plan amendment with a finding that BU-2 is consistent with the Planned Industrial designation pursuant to Policy 2.14 of the Future Land Use Element for transitional uses. Motion carried and ordered unanimously.

Upon motion and vote, the meeting adjourned at 7:52 p.m.

ATTEST: _________________________________
TRUMAN SCARBOROUGH, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

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SCOTT ELLIS, CLERK

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