MINUTES OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS

BREVARD COUNTY, FLORIDA

 

 

March 1, 2007

 

 

The Board of County Commissioners of Brevard County, Florida, met in regular session on March 1, 2007, at 5:00 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida.  Present were:  Chairperson Jackie Colon, Commissioners Truman Scarborough, Chuck Nelson, Helen Voltz, and Mary Bolin, Assistant County Manager Mel Scott, and Assistant County Attorney Christine Lepore.

 

The Invocation was given by Reverend Jim Govatos, Indian River City United Methodist Church, Titusville.

 

Commissioner Nelson led the assembly in the Pledge of Allegiance.

 

 

Chairperson Colon stated she attended the funeral for Branden Charles Cummings who was a soldier from Brevard County; and expressed her condolences to his family and fiancé, noting they have the support of Brevard County and are in her prayers.  Chairperson Colon read aloud a poem.

 

Commissioner Voltz advised the Grant Seafood Festival this past weekend had the biggest crowd they have ever had; there were over 40,000 people; many people came from out of State; and thanked Grant Community Center and all those who were involved for doing such a great job.

 

 

 

Zoning Manager Rick Enos advised staff is requesting to table Item VI.B.8, San Sebastian Holding to the April 5, 2007 meeting; and the item is still awaiting an ordinance change that is expected to come to the Board in March.  He noted Item VI.B.1, Malcolm Kirschenbaum, was advertised for both a Comprehensive Plan Amendment to Community Commercial and a rezoning from BU-1-A to BU-1; staff has recently discovered that the property already has the Community Commercial Land Use designation and therefore that part of the application will not need to be considered; the Board will be considering the rezoning from BU-1-A to BU-1; and the Board may wish to consider refunding the application fee for the Community Commercial portion.

 

Commissioner Nelson advised he would like to table Item VI.A.5, Carswell Construction, Inc to the April 5, 2007 meeting; and staff is still working with the community and the owner on the project.

Chairperson Colon called for the public hearing to consider the tabled items, as follows:

 

Item VI.A.5.  (Z0701201) Carswell Construction, Inc.’s request for change from RU-1-11 to RP, with a Binding Development Plan, on 0.38 acre, located on the southwest corner of North Courtenay Parkway and Spruce Avenue, which was recommended by the Planning and Zoning Board for approval with a Binding Development Plan.

 

Motion by Commissioner Nelson, seconded by Commissioner Voltz, to table Item VI.A.5 to the April 5, 2007 Board of County Commissioners meeting.  Motion carried and ordered unanimously. 

 

 

Item VI.A.1.  (Z0611103)  Rolando L. and Alinas Cabezas, and Mohan and Shereen Ramkissoon’s request for change from AU and IU to RU-2-4 on 23.66 acres, located on the east side of Hammock Road, south of Cuyler Road, which was recommended by the Planning and Zoning Board for approval with a Binding Development Plan, limiting development to three units per acre.

 

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

 

 

Item VI.A.2.  (Z0612401)  Brevard County Board of County Commissioners’ request for change from GML(I) to PUD-DRI on 4.55 acres, located on the west side of Lake Andrew Drive, south of Judge Fran Jamieson Way, which was recommended by the Planning and Zoning Board for approval.

 

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

 

 

Item VI.A.3.  (Z0612402)  Brevard County Board of County Commissioners’ request for change from PUD-DRI to GML(I) on 3.65 acres, owned by A. Duda and Sons, located on the south side of Judge Fran Jamieson Way, due east and adjacent to the Brevard County Government Center parking lot, which was recommended by the Planning and Zoning Board for approval.

 

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

 

 

Chairperson Colon called for the public hearing to consider the recommendations of the Planning and Zoning Board made at its January 8, 2007 and February 5, 2007 meetings and the North Merritt Island Dependent Special District Board made at its February 8, 2007 meeting, as follows:

Item VI.B.8.  (Z0605303)  San Sebastian Holding, Inc.’s request for Conditional Use Permit for a Commercial/Recreational marina, and a Conditional Use Permit for Alcoholic Beverages for On-Premises Consumption in a BU-1 zoning classification, located on the south side of Main Street, west of U.S. 1, which was recommended by the Planning and Zoning Board for approval, contingent upon meeting all requirements of the Surface Water Protection Ordinance.

 

Motion by Commissioner Voltz, seconded by Commissioner Nelson, to table Item VI.B.8 to the April 5, 2007 Board of County Commissioners meeting.  Motion carried and ordered unanimously.

 

Item VI.B.2.  (Z0702202) Blue Sky Trust’s request for a Conditional Use Permit for Alcoholic Beverages for On-Premises Consumption in a BU-1 zoning classification on 0.32 acre, located on the northeast corner of Roosevelt Avenue and Highway A1A, which was recommended by the Planning and Zoning Board for approval.

 

Commissioner Nelson advised the permit is limited to beer and wine as an accessory use to the restaurant. 

 

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item VI.B.2 limited to beer and wine as an accessory use to the restaurant.  Motion carried and ordered unanimously.

Item VI.B.4.  (Z0702301)  Longpoint Bait and Tackle, Inc.’s request for Conditional Use Permit for Alcoholic Beverages for On-Premises Consumption in a BU-1-A zoning on 0.68 acre, located on the northwest corner of Long Point Road and Highway A1A, which was recommended by the Planning and Zoning Board for approval.

 

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

 

 

Item VI.B.6.  (Z0702501)  Carmelo C. Puleio’s request for Conditional Use Permit for Alcoholic Beverages for On-Premises Consumption in a BU-1 zoning on 0.55 acre, located on the north side of Eau Gallie Boulevard, east of San Juan Drive, which was recommended by the Planning and Zoning Board for approval. 

 

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

 

 

Item VI.B.7.  (Z0702502)  Mauricio Salas and Luis F. Oliveros’ request for Small Scale Plan Amendment  (07S.4)  to  change  the Future  Land  Use  from  Neighborhood  Commercial   and

Residential 4 to Community Commercial, and a change from AU to BU-1 on 1.28 acres, located on the west side of Minton Road, south of Henry Avenue, which was recommended by the LPA and Planning and Zoning Board for approval.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item VI.B.7 as recommended by the LPA and Planning and Zoning Board; and adopt an Ordinance amending Article III, Chapter 62, of the Code of Ordinances of Brevard County, entitled “The 1988 Comprehensive Plan”, setting forth the Fourth Small Scale Plan Amendment of 2007, 07S.4, to the Future Land Use Map of the Comprehensive Plan; amending Section 62-501 entitled Contents of the Plan; specifically amending Section 62-501, Part XVI (E), entitled The Future Land Use Map Appendix; and provisions which require amendment to maintain internal consistency with these amendments; providing legal status; providing a severability clause; and providing an effective date.  Motion carried and ordered unanimously.

 

Item VI.B.9.  (Z0701103)  Brevard County Board of County Commissioners’ request for change from AU to IN(L) on 11.29 acres, owned by EDA Investment Corp., located on the west side of Old Dixie Highway, at the western terminus of Counts Lane, which was recommended by the Planning and Zoning Board for approval.

 

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item VI.B.9 as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

Chairperson Colon called for the second public hearing to consider the recommendations of the Planning and Zoning Board at its December 11, 2006 meeting and the Board of County Commissioners at its February 1, 2007 meeting as follows:

 

Zoning Manager Rick Enos advised all of the VI.C Items are administrative rezonings that were initiated by staff; this is the second reading; all of the items were approved by the Board at the first hearing; and all could be approved with no problems.

 

Item VI.C.1.  Section 19, Township 23, Range 36, Sub. #BI, Block K.5, Lot 4 & Parcel 501, on 40.22 acres, owned by Brevard Memorial Park Association, Inc., currently zoned AU (Agricultural Residential) with Conditional Use Permits for Cemetery/Mausoleum (Z-9462 & Z-8652), and proposed to change to IN(L) (Institutional Use, Low Intensity) with Removal of Conditional Use Permits, which was recommended for approval by the Planning and Zoning Board.

 

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

 

Item VI.C.2.  Section 6, Township 24, Range 36, Parcel 761, with Conditional Use Permit for a Cemetery (Z-3740) AU, on 30.67 acres, owned by Riverview Memorial, Inc., currently zoned AU (Agricultural Residential),  GU (General Use), BU-1 (General Retail Commercial),  and BU-2

(Retail, Warehousing, and Retail Commercial), and proposed to change to IN(L) (Institutional Use, Low Intensity) (Excluding the portions zoned BU-1 & BU-2), with Removal of Conditional Use Permit on the portion zoned BU-2, which was recommended for approval by the Planning and Zoning Board.

 

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

 

 

Item VI.C.3.  Section 26, Township 24, Range 35, Parcel 502, on 51.04 acres, owned by Cocoa Expo, Inc., currently zoned BU-1, and proposed for Removal of Conditional Use Permit for Treatment and Recovery Facility (Z-9127), which was recommended for approval by the Planning and Zoning Board.

 

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

 

 

Item VI.C.4.  Section 29, Township 21, Range 35, Parcel 251, on 11.29 acres, owned by EDA Investment Corp., currently zoned AU (Agricultural Residential), and proposed for Removal of Conditional Use Permit for Adult Congregate Living Facility (Z-6573), which was recommended for approval by the Planning and Zoning Board.

 

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

 

 

Item VI.C.9.  Section 22, Township 24, Range 36, Parcel 51, on 23.3 acres, owned by The Place at Merritt Island, Inc., currently zoned RU-2-8(7) (Low Density Multiple Family Residential) with Conditional Use Permit/Adult Congregate Living Facility (Z-9424), and proposed to change to IN(L) (Institutional Use, Low Intensity) with Removal of Conditional Use Permit, which was recommended for approval by the Planning and Zoning Board.

 

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item VI.C.9 as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

Item VI.C.11.  Section 36, Township 23, Range 36, Parcel 4, on 237.88 acres, owned by Teen Missions International, Inc., currently zoned AU (Agricultural Residential), and proposed to change to IN(L) (Institutional Use, Low Intensity), which was recommended for approval by the Planning and Zoning Board.

 

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item VI.C.11 as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

Item VI.C.12.  Section 1, Township 24, Range 36, Parcel 3, on 271.68 acres, owned by Teen Missions International, Inc., currently zoned AU (Agricultural Residential) and GU (General Use), and proposed to change to IN(L) (Institutional Use, Low Intensity), which was recommended for approval by the Planning and Zoning Board.

 

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item VI.C.12 as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

Item VI.C.24.  Section 19, Township 26, Range 37, Sub. #RM, Lots 1 thru 11 and 14, and Section 18, Township 26, Range 37, Sub #RM, Lots 12, 13, 13.01, 15 thru 20, and Section 18, Township 26, Range 37, Sub. #RM, Block A, C, and D, on 12.12 acres, owned by Glen L. Deilman, Lot 1; Horace H. Andrews, II, Lot 2; William C. (Jr.) and Arlene S. Porzio, Lot 3; William R. and Cheryl J. Black, Lot 4; Sally A. Prezioso, Lot 5; Ronald W. and Mary C. Salvary, Lot 6; Rebecca E. Stiles and Carol L. Fox, Lot 7; David Shein and Jo-Ellen Ames, Lot 8; Ronald M. and Dee Ann Faulisi, Lots 9 and 19; Kenneth and Dolores B. Quinn, Lot 10; Robert R. and Laurie V. Bert, Lot 11; Brian J. and Geneva L. Bussen, Lot 14; Coy A. Clark, Lots 12 and 13.01; Harold Guy Graham, Mary Graham, and Christina Bills, Lot 13; Ralph A. and Martha M. Copeland, Lot 15; Sheldon and Sandra D. Coe, Lot 16; Michael J. and Diane M. Chiffriller, Lot 17; James R. and Pamela C. Schultheis, Lot 18; Charles Rosenwald, Lot 20; and Portofino Bay Community Association, Inc., Blocks A, C, and D; currently zoned PUD (Planned Unit Development), and proposed to change to RU-1-13 (Single Family Residential), which was recommended for approval by the Planning and Zoning Board.   

 

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item VI.C.24 as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

Item VI.C.25.  Section 18, Township 26, Range 37, Sub. #25, Lots 1 thru 10, and Section 18, Township 26, Range 37, Sub. #25, Blocks A thru E, and Section 18, Township 26, Range 37, Sub. #51, Lots 11 thru 18, and Blocks F, G, and H, and Section 18, Township 26, Range 37, Sub. #52, Block A, Lot 19, and Section 18, Township 26, Range 37, Sub.#52, Block B, Lots 1 and 2, on 19.69 acres, owned by Peter D. Woods, Lot 1 and 18; Susan and Greg Girard, Lot 2; Zaki and Janine F. Elmaghraby, Lot 3; Charles and Carol Kappert, Lot 4; Carl J. and Marjorie A. Conti, Lot 5; Peter D. and Heidi L. Woods, Lot 6; Mercedes and Howard Buescher, Lot 7; Victor E. and Sarah C. Toro, Lot 8; Miguel Mateos-Mora and Yolanda M. Mateos, Lot 9; William and Judith Yonish, Lot 10; Still Point Homeowners Association, Blocks A, B, C, D, and E; Sandra S. Barlow, Lot 11; Timothy and Jean G. McCallan, Lot 12; Mark H.  and  Victoria L.  Duhamel, Lot 13;  Robert A. (Jr.)  and  Shannon  Johnson, Lot 14;

Michael and Karen Ainbinder, Lot 15; William Catambay and Ruthann Reese, Lot 16; Aaron M. and Amy Lew, Lot 17; Still Point Homeowners Association, Blocks F, G, and H; and Woods Family Properties, LLC, Block A, Lot 19 and Block B, Lots 1 and 2; currently zoned PUD (Planned Unit Development), and proposed to change to RU-1-13 (Single Family Residential), which was recommended for approval by the Planning and Zoning Board.

 

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item VI.C.25 as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

Item VI.C.26.  Section 1, Township 26, Range 36, Parcel 501, on 61.74 acres, owned by SCI Funeral Services of Florida, currently zoned AU (Agricultural Residential) with Conditional Use Permits for Cemetery (Z-289), Mausoleum (Z-9479), Mausoleum (Z-9545), Cemetery (Z-6347), and Mausoleum (Z-10758), and proposed to change to IN(L) (Institutional Use, Low Intensity) with Removal of Conditional Use Permits, which was recommended for approval by the Planning and Zoning Board.

 

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item VI.C.26 as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

Item VI.C.27.  Section 32, Township 25, Range 36, Parcel 755, on 40.15 acres, owned by Florida Marlins Baseball, LTD., currently zoned AU (Agricultural Residential), and proposed to change to IN(L) (Institutional Use, Low Intensity), which was recommended for approval by the Planning and Zoning Board. 

 

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item VI.C.27 as recommended by the Planning and Zoning Board.  Motion carried and ordered unanimously.

 

 

 

Item VI.A.4.  (Z0701102)  Hasley B. and Pamela Hart’s request for Small Scale Plan Amendment (07S.2) to change the Future Land Use from Neighborhood Commercial to Community Commercial, and a change from RU-2-10 to BU-2 on 2.61 acres, located on the west side of U.S. 1, north of Bonita Street, which was recommended for approval by the LPA and recommended for approval as BU-1 on the east 100 feet and BU-2 on the remainder, with the stipulation that a wall be placed on the south property line as part of the site plan, by the Planning and Zoning Board.

 

Mark Malek advised he is representing Louis Morehead, III, who is the neighbor to the south of the applicant; his client has run a nursery there since 1984; Mr. Morehead is concerned that with the BU-2 zoning, if Mr. Hart discontinues or sells his practice, a heavy industrial type of activity could go in; and a wall extending the entire property would be detrimental to his client because he uses part of Mr. Hart’s property for ingress/egress into and out of his property.

 

The applicant, Hasley Hart advised he is the owner of Cypress, Mulch, and Sod, which is about 450 feet north of the property that he just bought; he would like to move his business there; he has been renting for 19 years at the same location; and he has been in business for 21 years in Brevard County.  He advised he looked at BU-1 property at other locations and was told he could not do his operations under BU-1; it has to be BU-2; and that is why the discussion of doing the first 100 feet BU-1 came up.  He stated he would like to do a small office in the front, do landscaping around the property, and sell the landscaping materials; the BU-1 is not what he needs, but he did agree to it; the wall that was recommended was concrete; and he thinks it will look like a compound rather than a landscape nursery.  He suggested a 6-foot high, 15-foot wide earthen berm; noted he would put plants on top of that for another 3 or 4 feet; it would form a big barrier going up and down; and it would be maintained and more aesthetically pleasing.

 

Commissioner Scarborough inquired if the two parties were in consensus.  Mr. Hart replied Mr. Morehead would like to see BU-2 start at 200 feet, instead of 100 feet; he cannot go back 200 feet because he can only do his operations in BU-2; if he goes back 200 feet, he is taking up too much of the property; and Mr. Morehead wants a concrete wall, which he can compromise on, but he would prefer the earthen berm because it would be much more attractive for a landscaping company.  Commissioner Scarborough inquired if all of this was discussed at the zoning meeting; with Mr. Hart replying yes. 

 

Alex Sokolik, representing Mr. Hart, advised his client wants to take the property from RU-2-10, 10 units to an acre, to commercial; all of the other rezonings like this that he has done have been agricultural going to residential or commercial; if the property stays at RU-2-10, there will be more traffic trips; and the BU-1 and BU-2 are less of an impact than the RU-2-10. 

 

Mr. Morehead advised he has resided on and owned his nursery since 1984; it is located directly across from the County’s Manatee Hammock Park; he supports Mr. Hart’s business endeavors and moving the business next door to his facility; and requested the BU-2 zoning be pushed back to 200 feet.  He noted the 200 feet puts Mr. Hart’s business just west of his home; he has three girls ages 9, 10, and 11; and he does not want them to have to hear or look at dump trucks right outside their bedroom window.  He stated it will not interfere with an existing double chain-link fence gate that he has ingress/egress use of for delivery purposes for his business.  He further noted it would also not block visibility from U.S. 1 into his business for his customers and his clients; and requested BU-2 in the rear portion of the property, with a 6-foot concrete wall along the mutual property lines up to the 200-foot mark, and waiver of the wall for the first 200 feet.

 

Commissioner Scarborough inquired if BU-2, beginning at 150 feet, would impede Mr. Hart’s business; with Mr. Hart replying yes, it would; he has bins to put his materials in; in order for a semi to get in or a dump truck to dump the bins he has to have x amount of room; and he still needs to put in some sort of stormwater and will be limited for room.  Mr. Hart noted there is a gate on the property that adjoins the two properties; Mr. Morehead does not have right-of-way to use his property to get to the gate; but he has granted Mr. Morehead access if he has a large truck come in.  Commissioner Scarborough inquired if Mr. Hart would be willing to restrict the activities on a portion of the BU-2; with Mr. Hart replying he will need all of the BU-2 to do his business; if he cannot do that, he might as well stay where he is now; and Mr. Morehead resides in Titusville so although he does have children that he brings to the property once a week, it is not like there are three kids playing and living there.  Commissioner Scarborough inquired if Mr. Hart could restrict his activities with further setbacks from the north and south property lines.   Mr.  Hart  replied  after  the  first  hundred  feet,  there  is a 150-foot gate that he allows Mr. Morehead to use when he has large equipment; Mr. Morehead’s main concern is that the gate is not blocked, and he be granted permission to use it; he has agreed to that; but he cannot limit his own area for Mr. Morehead’s area.  Commissioner Scarborough inquired how close would equipment and materials be to property lines to the north and south; with Mr. Hart answering no closer than 15 feet, which is where the bins will be placed; there would not be anything parked next to the fence; and at night, the machines would all be parked in the back north corner completely out of view.  Commissioner Scarborough inquired how tall are the bins; with Mr. Hart replying the bins are four feet tall; and the six-foot concrete wall would totally block the bins from sight. 

 

Mr. Malek advised Mr. Morehead is concerned about wide-open BU-2 zoning and would appreciate some restrictions; and the ingress/egress issue is in dispute and litigation.  Commissioner Scarborough noted it was his understanding that the wall was imposed by the Zoning Board because of the discussion so if the wall is set back, there would not be any issue; and the BU-2 could be restricted to landscape purposes and the wall would commence where the BU-2 begins.  Mr. Malek replied if the Board commences the wall to where the BU-2 begins 100 feet back, it does block the ingress/egress; and the ingress/egress area starts very close to the 200 feet. 

 

Mr. Hart advised before he purchased the property, Mr. Morehead did have right-of-way to the property because he had been using it for 20 years without ever being stopped by the previous owner; a Judge decided that after the property was legally sold the right-of-way would be revoked; when he purchased the property, he met with Mr. Morehead and told him that it was revoked, but if he ever had a big truck come in, he could use it; and Mr. Morehead filed a suit to try to get the egress/ingress back, but it was later dropped.

 

Commissioner Voltz inquired Mr. Morehead does not have truck access to his own property unless Mr. Hart gives it to him; with Mr. Hart replying Mr. Morehead cannot get trucks in his front gates because it would mess up his gravel driveway.  Mr. Morehead stated the campground at Manatee Hammock Park is located directly across from both properties; there is a median cut; his driveway has been in existence for about 23 years since he constructed it; and if a wall is built up to 100 feet west of the U.S. 1 right-of-way, it will block his visibility from his business onto U.S. 1 and restrict customers driving down U.S. 1 from looking into his business.  He noted if the wall is pushed back to 200 feet that eliminates the visibility issue and the problems with the driveway; he feels BU-2 is too intrusive for the whole neighborhood particularly being directly across from Manatee Hammock; and if things were set back, it would be more appealing and not such a visual blight.  Mr. Malek advised the ingress/egress issue is in litigation now; it was in before and a perpetual easement was granted; however, with the new owner the issue is back in litigation and it is pending.  Mr. Morehead inquired if the Board could grant Mr. Hart BU-1 to 100 feet and waive the wall in the first 100 feet of BU-2.  Assistant County Attorney Christine Lepore advised the Board could not authorize that in the action; but it could be done later in the site plan process; and today the Board is looking at only the zoning.  Zoning Manager Rick Enos noted there is no point in requiring a wall if neither party wants it.  Mr. Hart proposed a wall from the gate back; with Mr. Morehead replying that is exactly what he wants. 

 

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve BU-1 on the front 100 feet, BU-2 on the remainder, with a wooden fence 200 feet off the applicant’s easternmost property line, beginning moving west to the rear of the property line; and adopt an Ordinance amending Article III, Chapter 62, of the Code of Ordinances of Brevard County, entitled “The 1988 Comprehensive Plan,” setting forth the second Small Scale Plan Amendment of 2007, 07S.2, to the Future Land Use Map of the Comprehensive Plan; amending Section 62-501 entitled Contents of the Plan;  specifically amending  Section 62-501,  Part XVI (E),  entitled The Future Land Use Map Appendix; and provisions which require Amendment to maintain internal consistency with these Amendments; providing Legal Status; providing a severability clause; and providing an effective date.    Motion carried and ordered unanimously. 

 

 

Item VI.A.5.  (Z0701201)  Carswell Construction, Inc.’s request for change from RU-1-11 to RP, with a Binding Development Plan, on 0.38 acre, located on the southwest corner of North Courtenay Parkway and Spruce Avenue, which was recommended for approval with a Binding Development Plan by the Planning and Zoning Board and previously tabled to the April 5, 2007 Board of County Commissioners meeting.

 

Commissioner Nelson advised he has several residents wishing to speak on the item he tabled in the beginning of the meeting; he still wants to meet with the community to discuss the issues because he is not comfortable with the project; and requested the Board allow the residents to speak.  He noted the item is still tabled to April 5, 2006 Board of County Commissioners Zoning meeting; and apologized for the miscommunication. 

 

Assistant County Attorney Christine Lepore noted it is fine to proceed but suggested since the applicant is not present, the comments be provided to the applicant so he has due process and is able to respond.

 

Lessie Smithwick submitted letters of opposition written by residents living on Spruce Avenue, and a petition signed by 66 residents.  She advised the Title states the majority of the people must sign in agreement; requested the Board ensure that has been fulfilled; and stated it seems to her that the majority have signed in opposition to the rezoning.  She noted one of her major concerns is safety on the street due to blind corners, three schools right across the street, and the absence of a streetlight and sidewalks; and another concern is commercialism.

 

Sarah Hillard also spoke in opposition to the rezoning. 

 

 

Item VI.B.1.  (Z0702201)  Malcolm R. Kirschenbaum, Trustee’s request for a Small Scale Plan Amendment (07S.3) to change the Future Land Use from Neighborhood Commercial to Community Commercial, and a change from BU-1-A to BU-1 on 2.14 acres, located on the west side of South Courtenay Parkway, south of Cone Road, which was recommended for approval by the LPA and the Planning and Zoning Board.

 

Lynn Hansel, the applicant, reminded the Board his initial application was for two actions, one a Small Scale Plan Amendment and the other a rezoning; the small scale plan amendment is no longer necessary because the Land Use is already Community Commercial; and the only request before the Board is the rezoning.  He presented a map showing the subject property and the surrounding zonings and land uses; and noted he has heard no objections to the project. 

 

Commissioner Nelson inquired what is the proposed use of the property; with Mr. Hansel replying today it is to relocate the Carquest facility to the north; the building needs some more room and the site is just over 2 acres; he cannot promise that will be the only thing since a small building on 4,000 square feet would be an under-utilization of the property; but there are no further plans at this time.  Commissioner Nelson inquired if he meant the auto parts store right up the street would be relocated to this property; with Mr. Hansel responding yes.

 

Commissioner Nelson advised the BU-1-A still allows commercial activity but it is considered a transitional use between residential and other types of commercial.  Zoning Manager Rick Enos noted BU-1-A is the lightest of the retail commercial zoning classifications; it is intended to serve smaller neighborhoods as opposed to a larger community; and in the commercial classifications, it is considered to be the most compatible with residential.  Commissioner Nelson stated his concern is the property is kind of buried back in there; and there will need to be a driveway to get into the facility.  Mr. Hansel responded there is approximately 50-feet of frontage on Courtenay Parkway; and there are also cross easements through the property to the north.  Commissioner Nelson inquired what are the types of uses in BU-1-A; with Mr. Enos replying BU-1-A uses can include such things as professional offices and small retail stores. Commissioner Nelson noted he feels BU-1-A is the right zoning for the property; it is up against multi and single-family homes; it is a transition, which is what it is supposed to be; and he is further concerned that it will require a driveway to get back to it.  Mr. Hansel stated whatever goes in there, whether BU-1-A or BU-1, it will need a driveway from Courtenay Parkway; in prior actions, the Board has already established the precedent of butting up BU-1 zoning to the whole subdivision; he offered at the Planning and Zoning meeting and again tonight, to incorporate the prior restrictions on the uses; and that would mean there would be no gas stations, alcohol sales, convenience stores, or carwashes.

 

Commissioner Voltz noted there is a lot of BU-1 in the area; but BU-1 is not close to the AU; and inquired if there could be a kind of buffer.  Mr. Hansel advised the Land Development Regulations are very clear between residential and commercial zoning; since the parcel abuts residential zoning, there will be a six-foot masonry wall built regardless of the zoning; and that is not an option or a voluntary thing, it is a mandatory regulation.  Commissioner Voltz inquired if there is a brick wall there now; with Mr. Hansel replying yes, he believes so; and another wall will have to go in on the other side abutting residential per regulations. 

 

Maggi Dutczak advised she can see the brick wall through her neighbor’s chain-link fence on one side; there is no wall on the other side; her biggest concern is safety; and there is no buffer between the properties.  She stated since this is her backyard, she is concerned that with the zoning of BU-1, what could go in there; in July of 2002, the same change was requested by Mr. Kirschenbaum for a proposed carwash; and due to the residents objections, it was agreed to do a Binding Development Plan for use only as a carwash and an extra 10 feet in setback on the south side to deal with the buffer.

 

Steve Dutczak advised he has concerns regarding safety and well-being; five years ago the request to have the zoning changed from BU-1-A to BU-1 was approved with a separation distance of 130 feet from the residents on the south side; there is one main difference between BU-1-A and BU-1; and that is that all of the activities permitted by BU-1 seem to be things that are heavily trafficked and odd hours of time.  He stated it seemed that once the last application became binding that it could only be a carwash, it was dropped; he wonders if this is a ploy to convert  the  entire  area  to  BU-1,  since  the  plots  are  all  owned  by  the  same Trustee; and requested the Board address the concerns of the homeowners in a Binding Development Plan, like the last time.

 

Commissioner Voltz noted the Board can limit the use to an auto parts store in a Binding Development Plan; and it could also make sure that the applicant puts in a specific buffer for X amount of feet, a specific light, and all of the other concerns the residents have.  Mr. Enos noted at the previous action in 2002, the applicant did withdraw the south 130 feet from the application prior to it being approved by the Commission with a Binding Development Plan; the Binding Development Plan was never recorded; when that happens, the previous approval is considered to have been withdrawn; but that did not affect the Comprehensive Plan Amendment.  He stated the Comprehensive Plan Amendment occurred except for the south 130 feet, which was withdrawn; and in order for this to be considered in its entirety, staff has to consider the Comprehensive Plan Amendment as well as the zoning request.  Commissioner Voltz inquired if it could be done without the 130 feet; with Mr. Enos replying yes, certainly.

 

Commissioner Scarborough suggested the Board look at the surrounding properties zoned BU-1 to see if there are Binding Development Plans attached to them restricting the uses.  Commissioner Nelson inquired what might the second building be on the property, after the auto parts store is put in.  Mr. Hansel replied he is not sure if the property will be able to hold another 3,000 or 4,000 square-foot building; but if it can, he cannot promise the applicant will not utilize the space.  Mr. Enos noted in that case, the Board could put in the Binding Development Plan what cannot be placed on the property.  Commissioner Nelson advised he is not convinced the zoning is not correct as it is; there is a transition that occurs, but it is right on Courtenay Parkway; and until the community and the Board know what is going to go in there, he cannot support it.

 

Motion by Commissioner Nelson, seconded by Commissioner Scarborough, to deny Item VI.B.1.  Motion carried and ordered unanimously.

 

 

Item VI.B.3.  (NMI70201)  Michael L. and Clinita S. Lynch’s request for change from AU to RR-1 on five acres, located on the north side of Smith Road, east of North Courtenay Parkway, which was recommended for approval by the North Merritt Island Dependent Special District Board.

 

Mr. Gareth Matthews advised several years ago he bought a two and a half acre lot zoned AU on Smith Road; there were six two and a half acre lots zoned AU; he was led to believe that each of the lots would be a home site for one house; and the zoning still allowed for Smith Road to be developed at a much lower density, preserving the integrity of the area.  He stated single homes were built on lots 1, 2, and 3; Mr. and Mrs. Lynch bought lots 4 and 5; he bought lot 6; and on his other side, there is a single home on 17 aces.  He noted south of that property, across the road, are 10 acres that belong to a family that has been there since 1981; they are on a dead-end dirt road; Mr. Lynch wants to rezone lots 4 and 5 right in the center of Smith Road to one-acre lots; and that will destroy the peace and tranquility he is accustomed to.  He stated he does not want four houses stuck right in between his property and the neighbors; the houses will have to be moved closer to him and to the neighbors on lot 3, because a right-of-way will have to be put in; and submitted letters of opposition to the Board from many of the residents on the street.

 

Commissioner Nelson noted Mr. Matthews owns lot 6; and inquired if that is on the east side of the subject property.  Mr. Matthews replied that is correct; and the owners on the west side, bought lots 2 and 3 and built one house on each lot. 

 

Michael Lynch, the applicant, noted this is the first he has heard of any objection; he put up a sign with his phone number, inviting people to call him with any questions or concerns; he does not know why people would not have called him when he solicited for comments; and there are no houses on the north, south, or east of the property.  He advised there is one house to the west and it is for sale; it is surprising to him there are so many objections; when he bought the property it was zoned PIP; and it was taken to AU after some residents and he applied for it.  He stated the property to the north went to Estate use and the property to the south is PIP; he started a lychee grove and was pursuing agricultural operations; it is a tough business and the trees take nearly ten years to become commercially viable; and he is currently at a cross-roads.  He advised he either has to pursue the agricultural interest by propagating trees and harvesting fruit, or go forward with development; and he understands the residents not wanting traffic to increase, but whether he develops the property or pursues the agricultural interest, traffic is going to increase.  He stated he would like to do four houses; and as the lots must be flaglotts, the houses he builds would be further from the existing home that adjoins the property because he would have to put a property line right along where the existing house is.  He noted he would be agreeable to a 50-foot setback on the front and rear; that would guarantee the neighbors a 100-foot wide corridor where there would be no house next door; there is a traffic light on S.R. 3; and he does not feel four homes are going to make much difference in traffic.  He stated eventually something is going to go in across the street and that will certainly step up the area.   

 

Commissioner Scarborough inquired how long the trees have been in; with Mr. Lynch replying he planted them about eight years ago; he is at the point where he must decide if he is going to harvest the fruit and propagate the trees or not; and the hurricanes and freezes have made it tough. 

 

Commissioner Voltz inquired about the possibility of the applicant leaving the two and a half acres AU, and putting three houses on the eastern portion with two flag lots.  Zoning Manager Rick Enos responded there is AU zoning on the west side, which is the large two and a half acre lots; to the north and east, there are smaller lots like one acre and one-half acre lots; one idea was to split the zoning on the property, with the west half being AU, which would be a two and a half acre lot just like the ones to the west, and the east half being RR-1, which would allow for two lots on the east half of the property; and it would be a total of 3 lots under that scenario, to address the potential compatibility issue towards the west.  Commissioner Voltz inquired if it would be a good transition if it goes from SR to RR-1 to AU; with Mr. Enos replying yes; that would internalize the transition; and the property to the west would still abut AU on the property.  Commissioner Voltz noted right now the applicant can put two homes; with Mr. Enos responding yes, right now the applicant can split the five-acre parcel into two AU parcels.  Commissioner Voltz noted it would be two more homes out there; with Mr. Enos replying it would be one more home if the parcel is split in half; and under the scenario that was just described, it would be a total of three homes with one on the west half and two on the east half.

 

Commissioner Nelson advised he is uncomfortable now because the community thought it was developed for six lots of two and a half acres each; Mr. Lynch is asking for a small subdivision right in the middle; people bought the lots believing there would be just the six lots; and he cannot support a rezoning when he believes the character of a neighborhood will be changed. 

 

Motion by Commissioner Nelson, seconded by Commissioner Scarborough, to deny Item VI.B.3.  Motion carried and ordered unanimously.

 

Item VI.B.5.  (Z0702302)  Keith and Corrie Borde’s request for change from SR and AU to BU-1-A Retail on 0.53 acre, located on the west side of Dairy Road, north of Florida Avenue, which was recommended for approval as RP by the Planning and Zoning Board.

 

Zoning Manager Rick Enos advised staff determined the original application for BU-1-A could not be considered, and suggested at the Planning and Zoning Board an alternative of RP zoning; this would allow the professional office and was satisfactory to the applicant; and the Planning and Zoning Board recommended approval of the item as RP.

 

Motion by Commissioner Voltz, seconded by Commissioner Scarborough, to approve Item VI.B.5 as RP.  Motion carried and ordered unanimously.

 

 

 

Upon motion and vote, the meeting adjourned at 7:03 p.m.

 

 

 

ATTEST:

                                                                        ______________________________

                                                                        JACKIE COLON, CHAIRPERSON

                                                                        BOARD OF COUNTY COMMISSIONERS

_____________________                              BREVARD COUNTY, FLORIDA

SCOTT ELLIS, CLERK

 

         (S E A L)