The Board of County Commissioners of Brevard County, Florida, met in regular session on April 6, 2000, at 5:30 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Nancy Higgs, Commissioners Truman Scarborough, Randy O'Brien, Sue Carlson, and Helen Voltz, Assistant County Attorney Eden Bentley, and Assistant County Manager Peggy Busacca.

The invocation was given by Commissioner Randy O'Brien.

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

RESOLUTION, RE: OPPOSING LEGISLATION TO REDUCE THE AUTHORITY OF LOCAL GOVERNMENT TO REGULATE BILLBOARDS AND OTHER OUTDOOR ADVERTISING

Assistant County Attorney Eden Bentley advised there is some legislation proposed which would limit the ability of Brevard County to amortize billboards on local roadways; and if the Board is opposed to the legislation, the County Attorney's Office prepared a resolution to inform the legislative delegation of its position. She advised the resolution is in opposition to the proposed legislation.

Chairman Higgs stated she has heard of others that seem to be directed at counties and municipalities not having the discretion they currently have in regard to local zoning issues; and finds it to be troubling. Commissioner O'Brien stated the Board discussed it at a previous meeting; the concern is along roads like SR 3 or US 192; and Brevard County cannot regulate the billboards. He stated in the new legislation which is being paid for by the big billboard companies, the County cannot amortize them and cannot change the law. He stated Merritt Island has billboards on Courtenay Parkway through residential areas because it is a State Highway; it is incredible that the State Legislature does not recognize the County should be able to regulate billboards; and it would hamper the Board's ability to restore the quality of life issues to Brevard County.

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to adopt Resolution opposing legislation to reduce the authority of local government to regulate billboards and other outdoor advertising. Motion carried and ordered unanimously.

Commissioner Scarborough advised Commissioner Voltz is active with Florida Association of Counties, and could inform them of this proposed legislation. Commissioner Voltz advised the subject was not discussed when she was in Tallahassee; but she will make a telephone call to make sure the Florida Association of Counties know about this. Chairman Higgs advised the Commissioners received a fax in the mail about whether the Florida Association of Counties is representing Brevard County in regard to some telecommunications and tower issues; and the County has no membership in the League of Cities. She stated there is concern the Florida Association of Counties may not be representing Brevard County in telecommunications issues; and she does not know of any other group that would represent the County. She suggested Commissioner Voltz be authorized to communicate to the Association that it represents Brevard County on all issues, because there seems to be some confusion at the State level that some Counties may be represented by the League of Cities on telecommunications issues.

RESOLUTION, RE: SUPPORTING SENATE BILL 1026 AND HOUSE BILL 191

Commissioner O'Brien advised he was approached by the Sheriff's Office, firefighters, emergency medical technicians, and correctional officers who believe the Board should support these bills; and the resolution supports Senate Bill 1026 and House Bill 191. He stated Senate Bill 1026 passed the Senate on April 4, 2000 unopposed 38 to 0, and was certified to go to the House. He stated the police officers, Sheriff's officers, State policemen, Marine Patrol, emergency medical technicians, firefighters, and correctional officers have retirement plans which they have paid into; and about 10-12 years ago the Legislature cut the amount they could receive in retirement, but they still pay the same amount of money into the plan.

Commissioner Voltz advised the issue was to be before the Board on April 4, 2000, but was withdrawn for some reason; and she does not know if now is the time to do it with some of the individuals not present at the meeting. Chairman Higgs stated there are three speaker's cards representing the Sheriff's Department, firefighters, and Fraternal Order of Police.

Major Curtis Dorman of the Brevard County Sheriff's Department thanked Commissioner O'Brien for bringing the Resolution to the Board so quickly. He stated in 1978 the retirement system had a flood of new participants, and it put the retirement fund in financial difficulty; and rather than raise the amount charged to each contributor, they lowered the benefits from 3% to 2% for the high-hazard retirement participants, including sworn law enforcement officers, firefighters, correctional officers, and probation workers. He stated the Legislature partially restored the retirement in 1989, and brought it by 2/10ths of a percent until it got back up in 1993 to the 3%. He advised participants who were employed the entire period of time lost 12% of their retirement; a lot of people in that system has since retired and gotten into the DROP programs, but this does not address them; it only addresses people currently employed and in that retirement system. He stated the amount of money being paid on the participants behalf was 13%, and it remained the same after the benefits were reduced for a number of years; and the Board paid benefits, but the participants did not get credit for it. He stated the Bill will go a long way to take care of the people putting their lives on the line; and it is the number one priority for the Florida Sheriff's Association in its legislative endeavors.

Robert Gamin with Fraternal Order of Police stated the Order represents police officers and deputy sheriffs throughout Brevard County, and have FOP lodges throughout the State of Florida. He introduced Charlie Cox, President of the Lodge. He stated the reason the issue has become so urgent is because there is only 3 weeks left, and the Bill is not moving in the House; several people came to address the subject at the last Board meeting, but realized they could only speak on the subject during Public Comments; so they did not speak at that meeting and opted to come back today. He stated there are members of the Fraternal Order of Police who lost 12% of their retirement; this money has been promised since 1983; and they have tried to get the money back, but have never came so close as now. He stated the real issue is fairness for the men and women working in law enforcement. Mr. Gamin stated the Florida Retirement System covers over 600,000 employees. He stated the Bills affect police officers, deputy sheriffs, troopers, firefighters, correction officers, prison guards, and teachers. He stated the Florida Retirement System has an enormous surplus of funds; and all of the changes that will occur in the fund will be paid for out of the surplus, and there will be no increase in rates. He stated there has been no increase in retirement benefits for anyone in the Florida Retirement System since 1978. He advised although the Bill quickly went through the Senate, it seems to be stuck in the House; and the Bill is in the general government appropriations committee, has been there for several days, and they have not scheduled anything; and suggested a copy of the resolution be forwarded to the Speaker of the House John Thrasher. He stated today he heard they have scheduled a discussion; but time is running out to get the legislation pushed through the House of Representatives. He advised if the Board adopts the resolution, Brevard County will have a rollback on the rate it has to pay per employee of 2.28% for the next ten years if not more.

Nancy Fazio, President of Brevard County Professional Firefighters, and a firefighter/paramedic lieutenant, stated it is an important issue as it is their pensions. She stated the Bill, in different forms, has been in front of the State Legislature for over 3 years; the Florida Professional Firefighters has been fighting it for 3 to 5 years; and has gotten no where; and it is the furthest the issue has gotten. She stated special risk is the only group in 1978 who had their benefits cut; averaging of the pension would change from the best of five years to the best of three years; it will allow them to restore the prior Public Safety people who lost their benefits; it will reduce the cost for fiscal year 2000-2001 by $456,000,000; and the fund will be actuarially sound, so the money will not run out. She stated some people want to strip the pension system to build roads, and to do other things; public employees will take a lower salary because of the benefits and pension; and if the State does not stay competitive with private pensions, it will be hard to continue to attract good, qualified personnel. She suggested the Board support the resolution; stated it will be one of the only Boards in the State to adopt a resolution; and that says a lot for Brevard County. She advised if it adopts the resolution, it will set the path for other counties; and suggested the Board send a copy of the resolution to Toni Jennings, the Governor, Ken Pruitt, and Senator Latvala.

Commissioner O'Brien read the Resolution into the record.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to adopt a Resolution supporting Senate Bill 1026, as amended and House Bill 191, amending the Florida State Retirement System for Special Risk members. Motion carried and ordered unanimously.

Commissioner O'Brien suggested the Board send copies of the Resolution to Ken Pruitt, Speaker of the House John Thrasher, Florida Association of Counties, requesting they go to their own local board of county commissioners and ask them to repeat the process, Toni Jennings, and Governor Bush, and give a copy to Robert Gamin, Nancy Fazio, and Dan Wilkins.

PUBLIC HEARING, RE: TABLED ITEMS OF NOVEMBER 1, 1999, AND FEBRUARY 7 AND 14, 2000 PLANNING AND ZONING BOARD HEARINGS

Chairman Higgs called for the public hearing to consider tabled items of November 1, 1999, and February 7 and 14, 2000 Planning and Zoning (P&Z) Board hearings as follows:

Item 1. (Z9911501) Rosemary Fondong's request for a Mixed Use District boundary expansion (to 350 feet) and a change from RU-2-10 to BU-1 and removal of the BSP on 2.45 acres located on the northwest corner of U.S. Highway 192 and Gray Road, which was recommended for approval by the P&Z Board.

Chris Soave, representing the applicant, stated Ms. Fondong implores the Board to grant the zoning for the commercial frontage.

Steven Harp, representing the applicant, stated they have taken into account, for the past 30 days, some of the concerns; and Rochelle Lawandales will continue with the presentation.

Rochelle Lawandales, with Lawandales Planning Affiliates, stated the concerns and issues were raised at the last hearing; and requested Commissioner Voltz to continue her meetings with the neighborhood to address some solutions with them. She advised at the last meeting she presented findings of fact, photographs, and site plan, all of which demonstrated how the request is consistent and compatible with Brevard County's Plans, Codes, and the area. She stated they have shown how the development can be completed and conform to all of the Land Development Codes; it will not impact any of the surrounding areas; and the septic tank and other issues will be addressed during the site plan review process before any development order is issued. She stated the applicant has removed any rear access to the building and moved the Gray Road access from lining up with North Oak Street to lining up with properties just to the east on Gray Road; and there are no plans for any building at this point on the rear of the property, which is RU-2-10 land, but the buyer has agreed to lower the density and other stipulations. She stated after the meeting with Chairman Higgs, she drafted some specific stipulations and performance standards in addition to those discussed at the last meeting. She stated the performance standards would be attached to a Binding Development Plan, and made a part of the record, binding the developer and any future user of the property; and distributed to the Board another copy of the attachment. She advised she has made two changes since it was distributed, adding piping the ditch, and a correction based on the revised survey numbers, changing from 48 units maximum to 43 units, reflecting the actual acreage. She stated pertaining to the concept plan for BU-1, which consists of approximately 2.1 acres, there will be placement of a wall on the westernmost property line to screen and buffer the parcel from any residential properties, or maintain a 25 foot natural buffer on the west side effectively using the exterior building wall face as the visual barrier in place of an additional wall on the perimeter; landscape and maintain as much existing vegetation to enhance the appearance of the wall, if that is preferred; will assist Brevard County in clearing the drainage canal on each development site at the time of the development; pipe the ditch for the front 300 feet of commercial land on the east boundary of Gray Road; place one access drive on US 192; and place the retention pond on the rear parcel at the south end, which would serve both development parcels, and act as a buffer between the commercial and subsequent residential development. Ms. Lawandales advised in regard to the RU-2-10 parcel, which consists of approximately 5.3 acres, they will agree to reduce the density to a cap of eight dwelling units per acre, or a maximum of 43 units; and maintain a perimeter buffer around the west, north and east sides, extending from the property line inward 10 feet as a no development zone, in addition to the required setbacks provided for. She stated they will provide only one access from Gray Road, providing that is acceptable to the Public Safety Department. She stated other conditions that would encourage a partnership between the neighbors, Brevard County and the new owner, would be such things as placement of a load limit, no truck signs on North Oak and North Gray Road, resolution of the water distribution issue with a MSTU, and a commitment from everyone in the area to keep the ditch and the culverts clean to increase volume capacity and flow of the entire drainage system. She stated changes are emotional, and she knows conversion of the land is difficult; and the issues raised by the neighbors have been heard and incorporated by the developer and primarily relate to existing conditions that have no bearing on this project. She advised the commercial center will be a quality development; the Board and staff have Codes to mandate quality; and the developer is committed to quality and being a good neighbor.

Geraldine Wallace stated she has a copy of the United States Constitution guarantees life, liberty, and the pursuit of happiness; and advised her unhappiness since 1994 because of what was built on the southwest corner from her house. She stated she has not had a decent life since 1994; she cannot use her land, or go outside because of the dirt, dust and exhaust; and inquired what is there to be happy about when property is damaged, noise is deafening, great clouds of gray dust come up over the fence, and the neighborhood is now considering putting 14 shops in between two subdivisions. She stated it would be setting a precedence in the neighborhood and is not the proper place for a 14-shop strip mall; it is not compatible with the neighborhood; and no matter how many trees are put there, it will not change anything. She advised the newspaper said it would generate an additional 1,025 cars. She stated the property was never advertised as RU-2-10 zoning; and when the sign was put out a few years ago it stated BU-1 zoning. She stated her life has been restricted and will be restricted even more if the mall is allowed to build there.

Augie Rodriquez stated there are more than enough problems on Catherine Boulevard and around Gray Road. He stated they are going to build so many businesses; and the residents would have to put up with suffering and a lot of things that do not belong there. He stated several existing malls have vacant spaces; and inquired why not fill those first before building more. He advised the traffic is another problem; and they do not need more cars, people, and problems; and a retention pond will just cause more mosquito's, gators, and snakes.

Tim Townsend stated he has lived on Northern Oak for 27 years; he was in his yard at 1:30 p.m. yesterday, and a big 18-wheel truck barreled through like it was an expressway; and stated his concern that more trucks will come, and no truck signs will help. He stated the parcel is too large; it has 107 parking slots; and they have to use land from the residential property behind it in order to help with the drainage of the parking lot. He advised he was at the original zoning meeting several months ago; that Board denied extension into the residential property to support this project; and stated his concerns about so much development on that piece of property.

Wini Austin stated her concern is the big trucks; and inquired if the "no trucks allowed" signs will be on Hickory Street. She stated there are only two streets to get into the development; one on Hickory and the other on Gray; they said they would enter the property on Gray Road and exit on US 192; there are no sidewalks; and there are several children in the development.

Leighton Wallace stated Brevard County has wisely determined the undeveloped property is most suitable for multi-family usage; those homes have been there since 1960; and the applicant is asking for 2 1/2 acres commercial, so the homeowners most affected by this development will have a parking lot in their back or front yard. He stated it will not improve the quality of their lives, or the value of their property. He stated Brevard County has looked at the development they are proposing, and talked about entries and exits, retention ponds, vegetative barriers, setbacks, and a huge wall; and inquired what is the purpose of all those features. He stated they are an attempt to lessen the negative impact on all of the homeowners on both sides of the land. He suggested a compromise to allow the developers enough footage at the front to put a commercial development, but not allow it to develop further back to intrude on the homeowners. He stated there is not enough evidence that warrants the zoning to be changed.

Joan Olmstead advised an 18-wheeler coming down Northern Oak had a hard turn to get onto Gray Road to go into the dinette store; he blocked Gray Road for 17 minutes to back-up into the facility; it will not be better; if another driveway is put opposite to it; and it will create a real back-up. She advised there are a lot of children and no sidewalks; if an ambulance or fire truck needs to get in and there is a truck blocking the road, they will have to turn around on US 192 and come on Hickory; and with a heart attack two minutes can mean life or death. She stated they do not need an entrance from Gray Road, if they confine themselves to the front of the property.

Jerry Klenck stated he did not realize he needed expert testimony, but so far he has not heard it from the other side either. He inquired what the current zoning is on the property; with Zoning Official Rick Enos responding the zoning is RU-2-10 which is multi-family at 10 units per acre. Chairman Higgs inquired if the zoning is on the entire property, and if there is a Binding Site Plan; with Mr. Enos responding yes. Mr. Klenck inquired what they mean by removing the BSP; with Chairman Higgs responding they are considering removing the current Binding Site Plan.

Commissioner Voltz requested Mr. Rick Enos address what the current Binding Site Plan says; with Mr. Enos responding the current Binding Site Plan was designed in 1981 when the property was rezoned to RU-2-10. He stated the BSP was for a proposed multi-family project with no extra setbacks; the current application is to remove the Binding Site Plan on the front 300 feet; and if the front is rezoned, the remaining property would be RU-2-10 with a Binding Site Plan.

Bob Willmarth stated he is a realtor by profession; advised of his education and memberships; and stated it is his professional opinion that the front 300 feet are best served as commercial use. He stated the property was rezoned in the early 1980's; and after many attempts they have been unsuccessful in finding a buyer willing to put residential property that close to US 192. He stated Brevard County recognized that several years back when it devised its Comprehensive Plan; it designed the 300 feet mixed use which would permit commercial development; and Brevard County has allowed numerous other sites along that same corridor to be either 300 feet, or in several cases more than 300 feet or more for commercial development. He stated many of the speakers this evening demonstrated conclusively why the front 300 feet is not suitable for residential property; and their complaints are why no one is willing to build an apartment on that property. He stated the plan, with a combination of commercial up front, buffered by the retention pond, and the reduced density on the back portion, would be economically feasible to develop; and the remaining parcel will be attractive to someone as residential property, with the buffered retention pond between the two properties.

Linn Wallace stated a mall does not belong on the long, narrow piece of property in between two residential established single family neighborhoods; and he would not want it behind his home. He stated there is property 200 feet to the west called Houser Groves that was sold and used for developed residential; and most properties along US 192 are valuable as commercial property, but most property of this size and shape is not going to be developed.

Robert Brown stated he and his wife recently purchased a home on Gray Road; and one of the selling points the realtor brought to their attention was the property across from their house was zoned residential, not that it was going to be used for commercial purposes. He stated he has two children ages 8 and 12; there are many on our road that have children who ride their bikes up and down the road; and the road is not wide enough to be considered a two-lane road. He advised oftentimes the road is blocked; and he does not know how emergency services could get through; an opening on a commercial development off Gray Road would be a traffic hazard; and other commercial areas to the east of US 192 have openings onto residential roads but not back into subdivisions. He stated the dinette store uses it quite accessibly, and often blocks it; they only have one opening on Gray Road; and if another opening is put opposite it, it is going to block it continuously during business hours, and possibly even later. He stated the problem will be crime in the area, and statistics can be gathered from Brevard County and the cities that would show as commercial development goes in, there are a rise in crime and traffic accidents. He advised if he had two weeks he could present professional testimony to the Board. He stated his neighbors and himself believe it would make it unsafe, and does not make sense to have that deep of frontage dedicated to commercial usage. He stated they purchased a home there because it was not zoned for commercial usage, and it would have an impact on future home sales or anyone else who wants to stay in the area if it is dedicated 300 feet deep to commercial usage. He stated it is something the residents do not want.

Nick Beckey stated he has lived on Catherine Boulevard since 1960; and the plan was to be changed to have access from US 192 to the area in the back, not off Gray Road. He advised the plan from the last time to now is to show where they are going to put the septic tank; his primary concern is when the storms come; and if they put a pond in the back, the water will run in the ditch that runs to Turkey Creek Canal. He stated the pipes are small; there should be a drainage ditch from US 192 back to Turkey Creek which goes down Sheridan Road; then a pond could be created. He stated they can put the mall on the existing area, but they want more; and more makes for big questions for everyone. He stated they have an area that changed from an orange grove to apartment house capability; the realtor that spoke earlier said they cannot get anyone to buy the property for apartment houses; and the residents do not want apartments. He advised they would like to have another housing development with a road in the middle; they want stores, but the property is not big enough; and 21 years after he moved there, they changed the zoning. He advised the plan today is not the same as they discussed at the last meeting.

Dave Menzel with MAI, the engineers on the project, stated the ditch is a discharge outfall; the water is not going directly into the pond; and the retention pond will store the heavy storm event Mr. Beckey spoke of.

Rochelle Lawandales stated the commercial development extending back 300 feet, comports to the entire line of the commercial development extending east. She advised Kane's goes to a depth of 550 feet; and everything else going further west goes from a distance of 300 feet to 1,100 feet, so it is within the character of the existing area. She stated when the plan was changed in 1990, it was recognized that because US 192 was 4-laned, and 35,000 to 40,000 cars driving the roadway, the nature of the lands fronting along US 192 had changed; and they need to look for alternative uses. She stated when they pipe the ditch there will be enough room on the west side of Gray Road to extend the road, so that people can get around. She stated they will also put a sidewalk there to facilitate pedestrian linkage from the residential areas, and the children catch the school bus. She stated originally the applicant had requested moving the mixed use district line 50 feet, and that had been abandoned to stay within the 300 feet currently identified on the future land use map. She stated access will be limited for trucks that would be utilizing this piece of property onto US 192 to try to minimize any other activity on Gray Road. She stated it is an enforcement issue on the trucks; and in the previous hearings she did enter findings of facts. She stated she wanted to spare everyone from going through that again, but if it is necessary, she will go back and address how they deal with water, sewer, and other land use issues. She stated they are trying to be good neighbors; and do not believe there will be any negative impacts from this development. She advised they have tried to address issues and concerns that have been raised by the residents; and they will continue to do so.

Commissioner Voltz suggested Ms. Lawandales address the issue regarding a road coming off of Gray Road, and making an entrance onto the property in the back. Ms. Lawandales stated it was discussed at the previous hearing, but when they did look at it in terms of the development around them and opportunities that were around with a single and multi-family developments, they need to maintain an access off of Gray Road to preserve the rear, particularly if there are any public safety issues for fire and police to be able to have a more immediate and close access to whatever units are ultimately built back there; but instead of looking at a number of access points, limiting it to just one. Commissioner Voltz stated she wants the public to know they did try to address this issue.

Commissioner Voltz advised the applicant mentioned sidewalks and extending the road, but it was not in the Binding Development Plan; and requested they add that to the Plan. Ms. Lawandales stated they will do that. Commissioner Voltz advised a statement was made regarding the property being between two residential properties; but she does not see that; and it is actually between two commercial properties. She stated they need to address the truck traffic, and administrative rezoning for the back part of the property to RU-2-6 or RU-1-11, but that will be dealt with at another time. She inquired if the item was approved without the access onto Gray Road, would the trucks have to make a U-turn to get into the property; with Zoning Official Rick Enos responding yes. She inquired who would enforce trucks being on Gray Road; with Assistant County Attorney Eden Bentley responding the Sheriff's Department, but it will have to be signed properly. Assistant County Manager Peggy Busacca advised if it is on the road it is the Sheriff's Department; and the signage allows the Sheriff to enforce it because there has been adequate notice. She stated Code Enforcement will take care of anything off the right-of-way.

Motion by Commissioner Voltz, to approve the first 300 feet as commercial.

Commissioner Voltz stated there are several other issues she would like to deal with regarding enforcement, down zoning the back property, and the rest of the issues.

Motion died for lack of a second.

Chairman Higgs inquired if the applicant will have a Binding Development Plan that will include the rear parcel; with Commissioner Voltz suggesting administrative rezoning of the rear parcel; but the rear parcel is not being addressed in the request today. Mr. Enos stated the back part of the property is not part of the application; and it would be inappropriate to try to bind it as part of this application; however the Board can direct staff to initiate administrative rezoning on the back parcel which will come back at a different time. Chairman Higgs advised the Board can require the applicant to voluntarily agree to a Binding Development Plan that meets the criteria necessary for the area. Ms. Bentley advised in the past they have had an applicant who has included additional area that was not advertised; and if they voluntarily agree to put a deed restriction on the property, they can. Chairman Higgs stated if the Binding Site Plan is removed, it opens the issue for discussion because the Binding Site Plan is on the whole parcel; is being discussed, and the applicant is willing to agree to certain things, the Board can consider it. Chairman Higgs inquired what the height restriction would be on RU-2-6; with Mr. Enos responding 35 feet.

Commissioner Carlson stated the access issue from the back parcel to US 192 is still in question, especially if there are trucks blocking the road. She inquired how Emergency Services will get where they need to be if there is a blockage of the road by a large truck; with Commissioner Voltz responding the applicant has suggested one driveway onto Gray Road from the entire back parcel. Commissioner Carlson inquired if the applicant is required to put sidewalks on US 192; with Commissioner Voltz responding the sidewalks are already there.

Commissioner Scarborough inquired if any other layouts of the building have been discussed; with Commissioner Voltz responding no. Commissioner Scarborough stated to get away from the Gray Road entrance, they could line one building up against Gray Road and the other directly to the other side, and have the entrance through the middle to the residential parcel, with parking off to the side. He stated they can have the same number of units but have a broad entranceway. Ms. Lawandales advised they have not gone into final engineering yet; and it is a conceptional plan to show how they can meet the Codes of Brevard County. She stated they may need to have two septic tanks; and it is not good planning to take the traffic that would be associated with a multi-family type development through a commercial parking lot. Commissioner Scarborough suggested the buildings be split, one on the east and the other on the west side, and through the middle have the traffic flow; and noted there must be a better way to make it work. He stated obviously the traffic does get stacked up on Gray Road; the Zoning Board suggested approval with no entrance on Gray Road; and he cannot vote for the current proposal. Commissioner Voltz inquired if there would be a problem having the buildings on each side of the property, with the entrance through the middle; with Ms. Lawandales responding they can look at it. She stated it is just a concept; and what they are really looking at is the performance standards or conditions for the Binding Development Plan. She advised every development for the entire length of US 192 enjoys side street access; and her clients would like to have the same right.

Dave Menzel stated if they eliminate the Gray Road access, a big van or large truck will have to go through the neighborhood; and that is why the patio furniture store has that loop. He stated no matter what is put on the property, there will be deliveries; and if a single entrance is put in the middle between the building they will drive through the neighborhood, come around, come in the entrance, loop around and go out to the north. He advised they cannot make the turn off of US 192; and they want to smooth the flow to get the trucks in and out.

Commissioner O'Brien stated the property owner needs to make fundamental changes to the present layout; and other strip malls have put the trucking in the back alley behind the property. He stated the truck traffic is causing problems with the adjacent neighbors; and if the opening on US 192 is twice as wide, a truck can get in, drive through the parking lot, and get back out. Commissioner Voltz advised a truck cannot make the turn off of US 192, so they will end up driving through the neighborhood. Chairman Higgs stated it is an enforcement issue. Commissioner Voltz advised if they do not make an entrance on Gray Road, the only other alternative is Hickory Street through the neighborhood. Commissioner Carlson stated a United Parcel Service truck can turn around and come back out; and she does not see what the issue is.

Commissioner O'Brien stated he would like the Board table the item one more time to give the applicant another opportunity to look at the entire idea and how they can make it work for themselves and the neighbors. He advised he is having a difficult time assessing the other options that will make this work for them and the neighbors; and if the Board goes forward now, they will be forced to use Gray Road, and the traffic will be much worse through the neighborhood. He stated if a truck cannot make the turn, it is giving him the message that maybe there should be changes made; there are other solutions to the problem; and the applicant needs to take another look at the design, density, and traffic safety aspects of the project.

Ms. Lawandales stated she would like for the item to be tabled instead of denied; and they will address the issues with the Department of Transportation. She stated they cannot have two access points along US 192; and they want to enjoy the same rights all the other property owners enjoy.

Motion by Commissioner Voltz, seconded by Commissioner O'Brien, to table Item 1 to the May 4, 2000 Board meeting. Motion carried and ordered unanimously.

Item 2. (Z0002104) Mitchell L. and Lucie L. Knox's request for a CUP for Wild Animals and Poisonous Reptiles in an AU zoning classification on 31.62 acres located on the northeast corner of Dixie Way and Davis Road, which was recommended for approval by the P&Z Board for Class III animals only, no poisonous reptiles, and additional buffers as offered by the Applicant.

Commissioner Scarborough inquired if the problems are resolved; with Animal Control Services Supervisor Joe Ward, Zoning Official Rick Enos, and Assistant County Attorney Eden Bentley responding yes.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item 2 with the following stipulations: (1) CUP to be only for Class III captive wildlife as defined by the Florida Game and Fish Commission, (2) a list of Class III captive wildlife existing on the Knox property to be submitted to the County on an annual basis and list is to be updated during the course of the year if the existing Class III captive wildlife population changes significantly or when new Class III captive wildlife is added to the property, (3) a 200-foot setback from the north boundary of the property and the north boundary of the area used to maintain the Class III animals, (4) a 125-foot setback from the east, west and south boundaries of the Knox property in relation to the area used to maintain the Class III animals, (5) the area used to maintain the Class III animals shall be fenced, and (6) an evacuation plan will be maintained and submitted to the County. Motion carried and ordered unanimously.

Item 3. Section 3, Township 29, Range 38, Parcel 250.1, from TU-1(20) to TU-1(6), which was recommended for approval by the P&Z Board.

Attorney Clifton McClelland, representing the applicant, advised he provided the County Commission with the planner's report, with attachments. He stated the property is a long- standing, family-run motel with nine units; the proposed rezoning takes it from TU-1(20) to TU-1-(6); the Future Land Use Plan in this area is suburban, with two units per acre; and the proposed rezoning is inconsistent with the rest of the plan. He stated when Brevard County developed the land use plan, it designated mixed use zones, and commercial uses; and based on Comp Plan Policy 4-2 through 8, the Board approved conforming commercial status by granting BU-1, BU-1-A, and RP zoning. He stated the TU zones have been singled out; the use suggested is inconsistent with the Comprehensive Plan; and it is not supported with data or analysis. He stated there are a great number of non-conforming lots in the South Beaches; in the north area, 95% of the existing lots do not conform with the Future Land Use Element; and of the vacant land, 89% of the lots do not comply with the Future Land Use Plan. He stated by allowing the single family substandard lots to go forward and continue in the Plan, they are reserving the future infrastructure growth for those lots. He stated the current use permitted by the zoning complies with concurrency; and in that area of A1A, they are at 71% capacity, which is level C. He stated allowing the TU-1(20) to continue to exist only puts 15.66 additional peak hour trips a day on the road, and so the current zoning complies with concurrency. He advised their position is what in fact is happening is by downzoning places an inordinate burden on this particular piece of property, since Brevard County is assigning the future growth to the substandard lots. He stated the action proposed by staff will result in a depreciation of the value of this property between $600,000 and $800,000; and suggested the Board reject the downzoning proposed.

Chairman Higgs advised it is part of a long history of changes; and inquired if Mr. McClelland will stipulate the previous information put on the record at previous hearings dealing with this property will be part of the record; with Mr. McClelland responding only the ones he has participated in. He advised he has participated in the Future Land Use amendment, and would agree to stipulate to any evidence that was submitted for that hearing 3 months ago. He stated he will not stipulate to the hearings he has not been a party to, or his client has not been present for. Chairman Higgs inquired if the report given to the Board tonight is the same report that was given to it at previous meetings, and which it responded to at meetings when Mr. McClelland was present; with Zoning Official Rick Enos responding he has not seen the report tonight. Chairman Higgs advised since it has a long history she does not want to proceed tonight without staff having sufficient time to respond fully to every allegation in the report. She stated that have responded to Mr. McClelland's previous report. Mr. McClelland stated he called staff and asked if there was a recommendation for tonight's meeting, and was told no; it is their position that if the report is submitted into evidence, they are denying them due process, because they asked for what was going to be submitted; and unless it is something that has been submitted at a prior hearing, they object and think they are being denied procedural due process. Assistant County Attorney Eden Bentley stated Chairman Higgs is saying she needs to give Mr. McClelland's report to staff to review and respond to, and he will have a chance to review staff's response. Chairman Higgs inquired if Ms. Bentley's recommendation would be not to proceed tonight, but allow staff to fully investigate and respond to all the issues; with Ms. Bentley responding yes.

Commissioner O'Brien suggested including in the motion to table to have the Echols' meet with their attorney and staff before it comes before the Board so both sides understand what they are up against before they get to the hearing. Chairman Higgs advised staff is available to talk with Mr. McClelland. Commissioner O'Brien advised since a lawsuit could be pending, staff must be careful on how it converses with the property owner.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to table Item 3 to the May 4, 2000 Board meeting. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: PLANNING AND ZONING RECOMMENDATIONS OF JANUARY 10, 2000

Item 1. (Z0003101) Edward Schumers, Trustee's request for a Mixed Use District Boundary Expansion and a change of classification from GU and RU-1-11 to EU-1 on 6.1 acres located on both sides of Riveredge Drive, approximately 0.60 mile south of Riveredge Drive and Washington Avenue split, which was recommended for approval by the P&Z Board.

Rodney Honeycutt, representing the applicant, stated it is a request for a mixed use district expansion, and a rezoning from GU and RU-1-11 to EU-1; and the parcel is 6.1 acres. He stated as it currently exists there are 6 lots split by a road, which actually means there are 12 lots that could be developed there; with the rezonings, staff notes there are 17 lots that could be developed; and they want to develop 8 lots in a gated community, and extend water and sewer to the site. He stated one of the concerns voiced is that septic tanks could go there, but that is not the kind of community they want to develop; so they are going to extend sewer. He stated there is a long distance along Riversedge Drive that has no sewer, several houses, a vacant lot, and a restaurant; by extending sewer along the road, those places will be able to have sewer; and those sites are adjacent to the Indian River. He stated staff forwarded its report recently to the City of Titusville; and the City responded the 17 lots should not be on septic tanks and sewer and water. He stated they have contacted the City and have sent a letter; and would like to distribute a copy of the letter to the Board. He stated the letter says staff understands there are 8 lots, a gated community, will be water and sewer, and the project to the south which has recently been annexed and zoned, and residential will be adjacent to this site. He stated the City does not see any need to review this prior to Brevard County approving it.

O. Sam Ackley stated he is present to answer questions.

Nelly Strickland stated the area in question is surrounded on three sides by the City of Titusville. She stated she remembers Boeing trying to come to Titusville, and Mr. Ackley raising a lot of trouble over annexing them into the City which they refused to do. She advised there are a lot of wetlands in the area; and she cannot see how many homes can be built there without it being filled. She stated unless it gets annexed, they cannot get water; Carpenter Road in Titusville cannot get water; and voiced her objection to piping out the water so far out of the City. She stated the St. Johns River Water Management District is spending a lot of money to clean up the Indian River, and make it more like it used to be; and putting fill in wetlands is not a good thing. She stated sea walls cause odors. She stated she does not think the project is a good idea, and the Board should deny it.

Rodney Honeycutt stated the Boeing site, which is adjacent to this property, is annexed. He stated there are wetlands on site; and they are doing minimal filling. He stated there is a road that will be used to get access to the lots, which ranges from 125-feet to 700-feet from the water; the wetlands on that side consist of some old mosquito impoundment strips and a canal that goes through; and what they propose to do is fill in an area adjacent to the road. He stated in no case will they get close to the water; County staff will not let them get closer than 25-feet; and no sea walls have ever been proposed. He stated the applicant will provide water and sewer to the site through the City, and will sign an agreement to annex; and then it will be up to the City to annex. He stated a property must be adjacent to the City of Titusville to be able to be annexed under a City Ordinance, or the City Council has to approve it; and the City has not been approving water and sewer for properties not adjacent to the City. He stated the power line is being extended approximately 1,500 feet; and water service will be provided to residences along that road that have wells now.

Commissioner Scarborough stated the property is an enclave of the City of Titusville. He stated what disturbs him is in paragraph one of the first letter of April 5, 2000 it says the subject site appears to be contiguous to the City of Titusville limits, and as such would be required to be annexed in order to receive City water and sewer services; but in paragraph 4, second sentence, it states if this is in the City of Titusville, the land development regulations would require the subdivision to connect to sewer regardless of distance to existing sewer lines. He inquired if it is appropriate for the Board to proceed this evening since it has been discussing the roles of joint planning agreements; with Commissioner Carlson responding it is a perfect example for a joint planning agreement. She stated with a joint planning agreement, Brevard County and the City of Titusville can have their own terms regarding annexing the property, so the developer will develop under Titusville rules. Commissioner Scarborough suggested tabling the item for one month so the City of Titusville can comment on it. Commissioner Carlson stated if there is a joint planning agreement, it is possible to make sure it is done under the rules of the City, so the uses are more compatible. Commissioner Scarborough stated Melbourne City Attorney Paul Gougleman advised if a joint planning agreement is desired, it is necessary to pretend there is one, and talk and work on similar tracks. He stated the City of Titusville is a player with water and sewer; annexation is part of it; and one month is not much time to make sure the City of Titusville and Brevard County are talking. Commissioner Carlson advised a joint planning agreement allows two-way communication. She stated on the land use issue there is industrial and commercial surrounding the property that the applicant wants to make residential; it is close to the Space Coast Executive Airport. She suggested the Board should be referring to the City of Titusville's Comprehensive Plan.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to table Item 1 to the May 4, 2000 Board meeting. Motion carried and ordered unanimously.

Item 2. (Z0003102) Francis J. and Christina D. Shear's request for a change from GU to AU on 2.38 acres located on the east side of Florida Palm Avenue, approximately 135 feet south of Cabbage Palm Avenue, which was recommended for approval as AGR with no mobile home by the P&Z Board.

Francis Shear stated he is requesting a change from GU to AU.

Commissioner Scarborough advised the Board made changes regarding this type of request; and requested Rick Enos explain the changes to the applicant. Zoning Official Rick Enos advised AU zoning cannot be considered under the zoning regulations because the current zoning is GU. He stated as the P&Z Board dealt with this, it suggested going to the AGR classification, with no mobile home; and under these circumstances it is almost the same as having AU zoning. He stated the Board directed staff to initiate an ordinance to amend the Code to allow AU zoning in this circumstance in the near future; the Board approved AGR tonight, in the near future there might be an administrative rezoning back to AU, which is what applicant wanted to begin with; and the second action would be at no cost to the applicant. Commissioner Scarborough stated the applicant will have the same rights he is seeking tonight with the rezoning. He inquired if Mr. Shear agrees; with Mr. Shear responding yes.

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

Item 3. (Z0003103) Hoyt G. & Sarah A. Mack, and Ola Mae Mack's request for a change from AU to RR-1 on 1 acre located on the west side of Freedom Lane, approximately 432 feet south of Parker Street, which was recommended for approval by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item 3 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 4. (Z0003104) Daniel K. and Marvina M. Rice's request for a change from RU-2-11 to AU on 8.24 acres located on the east side of Glendale Boulevard, approximately 385 feet north of Parrish Road, which was recommended for approval by the P&Z Board.

Daniel Rice stated there were a lot of concerns by the neighbors near the property, and those are a priority for them. He advised they had a meeting with the neighbors; everyone voiced their concerns, and they came to a good faith understanding; and everything seemed to be resolved.

Commissioner Scarborough requested the applicant enter into an agreement regarding the south end of the property stipulating that for 100 feet there will be no operation there. He inquired how many feet are there from north to south; with Zoning Official Rick Enos responding approximately 700 feet. Commissioner Scarborough stated the land will still belong to the applicant but there would be no commercial-type equipment within the 100 feet. He stated plants are okay, but no noise. Mr. Rice advised he would like to have a tractor to mow the area. Mr. Scarborough inquired if they worded it "except for mowing equipment" would it be okay; with Mr. Rice responding yes. Commissioner Scarborough stated he does not want the mulching equipment down there making noise day and night; because people do not like that. Mr. Rice inquired what would happen if he caused a problem with the noise; with Commissioner Scarborough responding someone might call Brevard County, and a Code Enforcement Officer would come out to the property to talk to him. Mr. Enos stated the Code has a definition of heavy equipment which would be appropriate. Commissioner Scarborough stated he is more interested in the level of noise; and suggested using decibels. Mr. Enos stated they can reference the Conditional Use Permit standard. Mr. Rice stated there are four vacant lots around his property where he wants to locate his home and barn; and wants to locate his potting material near his home, so he will occasionally move the potting soil around with a small loader, but not on the bottom 100 feet. Mr. Enos stated for uses against residential property, the day time decibel is 55 and the night time level is 45. Commissioner Scarborough inquired what does a 55 decibel compare to; with Mr. Enos responding like a residential street, and 45 would be like inside your living room.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item 4 with stipulation to limit noise to 55 decibel level during daytime and 45 decibel level at night along the residential property lines to the west and the south. Motion carried an ordered unanimously.

Item 5. (Z003105) Steven D. and D. Elaine Lathem's request for a change from AU to EU on 1.35 acres located approximately 550 feet west of River Road, approximately 300 feet south of Twin Lakes Road, which was recommended for approval by the P&Z Board.

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

Item 6. (Z003106) Patricia Ann Arnold and Christopher L. and Patricia Roberts' request for a change from GU to ARR on 1.16 acres located on the north side of Dyson Avenue, approximately 0.25 mile east of Satellite Boulevard, which was recommended for approval by the P&Z Board.

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

Item 7. (Z0003107) 4 G's of Brevard County, Inc.'s request for a change from GU to ARR on 1.15 acres located on the south side of Sharpie Avenue, at the southern terminus of Nicole Way, which was recommended for approval by the P&Z Board.

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

Item 8. (Z0003108) Edward R. Mashintonio's request for a change from AU to ARR on 3.5 acres located on the southwest corner of Cody Place and Breckinridge Avenue, which was recommended for approval by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item 8 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 9. (Z0003401) Floyd D. and Patricia M. Ellsworth's request for a CUP for a temporary security trailer in an AU zoning classification on 20 acres located on the north side of Pluckebaum Road, approximately 1/4 mile east of Range Road, which was recommended by the P&Z Board.

Commissioner Carlson advised the property currently has a compliance issue; the applicant has 6 months to comply as they are in violation; and suggested the CUP continue as long as the violations are taken care of. She inquired how she should word the motion; with Zoning Official Rick Enos responding it could be approved for 18 months contingent upon compliance with the Code Enforcement action. Commissioner Carlson inquired if 12 months would be sufficient time for the applicant; with Floyd Ellsworth responding they need 18 months to get it completed. Mr. Enos stated after 6 months a determination would be made if the applicant is in compliance; and if they are not in compliance, the CUP for the trailer would expire at that point. Assistant County Attorney Eden Bentley advised it should be based on time or the existing land use. She stated if the violation does not relate to the CUP for the security trailer and the negative impact of the security trailer, then there is no basis to deny it on the grounds of the violation; but it can be made for a certain time period. She stated the Board can approve the CUP for 6 months; and then the applicant can come back in. Mr. Enos advised it can be for 6 months, with administrative approval of 6 months to 12 months; and staff could look at the termination of the Code Enforcement case, and extend it or not, depending upon the outcome of that.

Motion by Commissioner Carlson, seconded by Commissioner O'Brien, to approve Item 9 for 6 months, and authorize administrative extension of 12 months (total 18 months), if appropriate. Motion carried and ordered unanimously.

Item 10. (Z0003501) Lawrence Frazier Johnson, Charlene R. Johnson, and Tania Louise Johnson's request for a Mixed Use District Boundary Expansion and change from RU-1-7 to BU-2 on 4.8 acres located on the southeast corner of Highway 192 and Commodore Street, which was recommended for tabling by the P&Z Board.

Motion by Commissioner Voltz, seconded Commissioner O'Brien, to table Item 10 to the April 10, 2000 P&Z meeting and May 4, 2000 Board meeting as recommended. Motion carried and ordered unanimously.

Item 11. (Z9905406) The Viera Company's request for a change from PIP to PUD on 56.55? acres located on the east side of I-95, approximately 0.26 mile north of the Six Mile Creek Subdivision as measured along I-95, which was recommended for approval by the P&Z Board.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to approve Item 11 as recommended by the P&Z Board.

Zoning Official Rick Enos advised the County Attorney's Office has suggested alternative language recommending that the approval would be effective the date of Comprehensive Plan Amendment 99.B. Commissioner Carlson she forgot that language; and would like to amend the motion.

Commissioner Carlson amended the motion to approve Item 11 with stipulation that the effective date be the date of Comprehensive Plan Amendment 99.B. Commissioner Voltz accepted the amendment.

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

PUBLIC HEARING, RE: PORT ST. JOHN SPECIAL DISTRICT BOARD'S ZONING RECOMMENDATION OF MARCH 1, 2000

Item 1. (PSJ00301) Brevard County Board of County Commissioners' on its own motion, authorized administrative rezoning on property owned by Hivis Development Group, Inc. on which a development order had been submitted initiating a consideration of a change from RU-1-9 to RU-1-11 in accordance with the provisions of Future Land Use Element XIII, Policy 10.2, Brevard County Comprehensive Plan, as adopted on September 8, 1998, et seq. on 28.44 acres more or less located on the east side of Golfview Avenue, approximately 125 feet south of Brack Street, which was recommended for approval by the Port St. John Special District Board.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item 1 as recommended by the Port St. John Special District Board. Motion carried and ordered unanimously.

PUBLIC COMMENTS

O. Sam Ackley inquired what the rules are for the joint planning agreements. He stated he contracted for 5 lots; the bank is ready to close on the loan; and the people are going to want to know what will happen now. He stated this is not a development, but existing, platted, ready to deed lots; and the only reason they came in for rezoning was because they wanted to combine some lots for one home builder, so he can build over the lot line. He stated whether Brevard County rezones the property or not, they have to go to the City of Titusville for annexation, water and sewer; they submitted the application 90 days ago; and he wishes they had known the Board's policy. He stated they read every Code and Ordinance, and asked for all the rules and regulations; and they could have submitted it to the City a few days ago so it could have run concurrently. He stated it would have given everyone a lot more time; they would not have gone under contract with people without telling them that there is a joint planning agreement involved in addition to the rezoning; and they would not have arranged financing without disclosing that to the bank. He stated no one ever told them about a joint planning agreement. He advised they will have to go to the City of Titusville, not withstanding the rezoning; the City may deny them water and sewer; and then they will be back where they started. He stated if it is denied, he would ask the buyers to buy the lots and put wells and septic tanks on them. He stated they have met with the City numerous times about this project because they knew they would go to it for water and sewer. He stated when Commissioner Scarborough started the motion he said they would have the two staffs get together in 30 days; but then made the motion that they would meet with the City Council. He stated he does not know what advertising requirements the City has; every joint planning agreement has been customized in the past; and he does not know of any existing rules or regulations. He inquired what can they expect from the Board of County Commissioners in 30 days if the City Council is unable to get this on its agenda and act on it within the next 30 days, and who will initiate the meeting. He inquired if County staff will go to the City to request a joint planning agreement, and should they step out of the picture and let County staff handle it. He stated he came back before the Board under Public Comments because he does not know where to go with this.

Commissioner Scarborough stated the Board is not asking to conclude the joint planning agreement. He stated when Mr. Ackley was City Manager the County had a tower going out on the causeway, and they were concerned whether the City of Titusville had problems because it was an enclave. He stated the City commented on it, and Brevard County acted as the City advised. He stated a joint planning agreement is not necessary to act like there is one; and when there is an enclave, it is necessary to get involved with the other party to make sure all of the pieces come together. Mr. Ackley agreed with Commissioner Scarborough; but stated in this particular case, there is no site planning. He stated the residential use is permitted under GU; but they want to go with a less dense, restrictive zoning to protect the property values within that community. He stated he is in favor of getting the City's comments, but is wondering if rezoning and development are being mixed up, and if the Board is looking at it as a development when it is just a use of existing land for the purpose it is currently zoned for. Commissioner Scarborough stated his propensity is not to move forward until he is comfortable with it; and he would prefer to take the time to do it right. Mr. Ackley stated with or without the rezoning, they are prepared to build houses on the lots; but they want a restrictive zoning to protect the buyers.

Commissioner Carlson inquired since Mr. Ackley has had communications with the City of Titusville, does it have plans for that enclave as far as a future land use since it has industrial and commercial surrounding the property; with Mr. Ackley responding there is residential on the south. Mr. Ackley stated next to them is a boat junk yard on a narrow piece of property, but next to it is a residence.

Upon motion and vote, the meeting adjourned at 8:42 p.m.

ATTEST:

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

SANDY CRAWFORD, CLERK
( S E A L )