August 7, 2003

The Board of County Commissioners of Brevard County, Florida, met in regular zoning session on August 7, 2003, at 5:33 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Vice Chairman Nancy Higgs, Commissioners Truman Scarborough, Ron Pritchard, and Susan Carlson, Assistant County Manager Peggy Busacca, and Assistant County Attorney Eden Bentley. Absent was: Chairperson Jackie Colon.

The Invocation was given by Commissioner Ron Pritchard of District 2.

Commissioner Nancy Higgs led the assembly in the Pledge of Allegiance.

REPORT, RE: AGENDA ITEMS

Assistant County Manager Peggy Busacca advised two items have been withdrawn from the Agenda; one is the TiCo Airport Standards; and the second is the Millennium Development, which is Walkabout PUD. She stated people who are interested in talking about Walkabout have gone to the Space Coast Room; and anyone here who is interested in talking about it can go there also.

REPORT, RE: BREVARD ALZHEIMER’S FOUNDATION

Commissioner Scarborough advised Joe Steckler with Brevard Alzheimer’s Foundation has been writing the Board regarding State funds that may be available; any monies that can help out those person involved in this particular family problem would be most helpful; and it may be advantageous to have the Board’s lobbyist get involved and see what can be done to make sure Brevard County gets its fair share of those State funds that are being made available.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to authorize Guy Spearman to get involved with obtaining State funds for the Alzheimer’s Foundation. Motion carried and ordered unanimously.

REPORT, RE: CONTINUED ZONING ITEMS

Zoning Manager Rick Enos advised Item III.A.1., William Turnbaugh, Trustee’s request for change from AU to RR-1 on 81.09 acres located on the east side of Simon Road, south of Milwaukee Avenue, has been requested for tabling to December 4, 2003 by the applicant.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to continue the public hearing on Item III.A.1. to December 4, 2003 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Mr. Enos advised Item III.A.4., Villasol Realty Co.’s administrative rezoning to remove a conditional use permit for a commercial borrow pit has been requested for tabling to September 4, 2003.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to continue the public hearing on Item III.A.4. until September 4, 2003. Motion carried and ordered unanimously.

Mr. Enos advised Item III.B.1., James and Joanne Bennett’s request for CUP for wild animals in RR-1 zoning classification on 0.85 acre located on the west side of Ohio Street, north of Chicago Avenue, was requested for tabling by the applicant to October 2, 2003.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to continue the public hearing on Item III.B.1. to September 8, 2003 P&Z Board hearing and October 2, 2003 Board of County Commissioners hearing. Motion carried and ordered unanimously.

Mr. Enos advised Item III.B.7., Millennium Development of Titusville, L.L.C. and Titusville Holdings, Inc.’s request for change from GU and PUD to all PUD on 1,132.6 acres located on the north side of SR 46, east of I-95, was requested for tabling until September 4, 2003.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to continue the public hearing on Item III.B.7. until September 4, 2003. Motion carried and ordered unanimously.

Mr. Enos advised Item III.B.9., FBC of Brevard, Inc.’s request for change from BU-1 to RU-2-15 on 2.33 acres located on the southeast corner of 20th Street and Orlando Avenue, was requested for tabling until September 4, 2003 by the applicant.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to continue the public hearing on Item III.B.9. until September 4, 2003. Motion carried and ordered unanimously.

RESOLUTION, RE: RECOGNIZING EAGLE SCOUT MICHAEL J. GEIGER

Commissioner Carlson read aloud a resolution recognizing Michael J. Geiger for his achievement of the Eagle Scout Award.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to adopt Resolution recognizing Michael J. Geiger for his achievement of the Eagle Scout award. Motion carried and ordered unanimously. Mike Geiger advised over the past ten years in Scouts, he has had a great time; it has been amazing; he went to a lot of places he would not have if he did not join the Scouts; and his project of child identification cards was fun and helps children and parents around the community in case the children are kidnapped.

Vice Chairman Higgs stated it is an outstanding project, and the Board is happy to recognize what Mr. Geiger has done.

RESOLUTION, RE: RECOGNIZING EAGLE SCOUT MARK K. STALLINGS

Commissioner Carlson read aloud a resolution commending Mark K. Stallings for his achievement of the Eagle Scout award.

Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to adopt Resolution commending Mark K. Stallings for his achievement of the Eagle Scout award. Motion carried and ordered unanimously.

Mark Stallings advised his project, Mark’s Music Workshop at Surfside Elementary School, was to help students with their music abilities so they can later achieve their music goals in life. He stated Scouting is a wonderful experience that will help later in life as well; and they have to look at the big picture and realize where they are going to be ten years from now.

Vice Chairman Higgs congratulated Mark Stallings on his outstanding achievements.

PUBLIC HEARING, RE: TABLED ITEMS FROM OCTOBER 7, 2002, APRIL 14, 2003,
AND MAY 5, 2003 PLANNING AND ZONING BOARD RECOMMENDATIONS

Vice Chairman Higgs called for the public hearing to consider recommendations of the Planning and Zoning (P&Z) Board, made at its public hearings on October 7, 2002, April 14, 2003, and May 5, 2003, and tabled by the Board of County Commissioners as follows:

Item 1. (Z0210501) William P. Turnbaugh, Trustee’s request for change from AU to RR-1 on 81.09 acres located on the east side of Simon Road, south of Milwaukee Avenue, which was recommended for approval by the P&Z Board, and requested for tabling to December 4, 2003 by the applicant.

Item 1 was continued to December 4, 2003 Board of County Commissioners meeting earlier in the meeting.

Item 3. (Z0305201) Robert A. Baugher’s request for change from BU-1 to RU-2-10 on 1.984? acres located on the west side of Highway A1A, north of Crescent Beach Drive, which was recommended for approval by the P&Z Board with a binding development plan limiting development to an over-55 community, with a maximum of 16 units and additional language requested by Natural Resources regarding compliance with all applicable regulations.

Attorney Philip Nohrr requested, since there is not a full Board present, if the Board would consider tabling Item 3.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to continue Item 3 until September 4, 2003 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item 2. (Z0305501) Mattress Barn, Inc.’s request for Small Scale Plan Amendment 03S.6 that proposes to change the Future Land Use Map designation from Residential 15 to Community Commercial, and a change from RU-1-9 and BU-1 to BU-2 on 4.28 acres located on the north side of U.S. 192, west of Katherine Boulevard, which was recommended for denial of community commercial by the LPA and denial of zoning change by the P&Z Board.

Attorney Philip Nohrr, representing the applicant, distributed exhibits to the Board, but not the Clerk; stated his client’s property is in green and located on New Haven Avenue, also known as U.S. 192; and currently there is a retail outlet known as the Mattress Barn on the property. He stated the property is zoned BU-1 to a depth of 500 feet; the balance of the property of 618 feet is zoned RU-1-9; and his client is requesting the property be zoned BU-2. He stated the neighbor to the west obtained BU-2 for the entire depth of his property of 1,118 feet; the property has basically the same frontage, but more width in the back; and west of them is the Tractor Supply Company which also obtained BU-2 zoning with access off U.S. 192 to a depth of 675 feet. He stated to the east is AU zoning; the owner has a concern and objects to what they are seeking to do; but although they are asking for BU-2 on the parcel, they have no problem keeping BU-1 on the front 265 feet; and the remaining 853 feet, with 320 feet being the pond, leaving 533 feet, is what they are requesting to be able to go forward. Mr. Nohrr stated the neighbor to the east has expressed some concerns, so they have come up with a conceptual site plan, which they are proposing to make part of a binding development plan (BDP), which staff has not had a chance to review; but he wanted to go over it with the Board, and to the extent the request receives some merit, they could enter into a formal plan and present it to the Board at the next meeting. He stated they would be orientating the property to the west and putting in a four-foot high vegetated and irrigated buffer on the east side and taking all the development away from the neighbor to the east; and they would not have any type of outdoor activity or hazardous material, and basically would have the same type of BDP that his neighbor to the west has, other than the outdoor mini-storage. He presented pictures and stated they would keep the lighting on their site; it would be a single story with no outside storage, no manufacturing, and no hazardous waste; and they will do what they can to be a compatible neighbor. He stated if there are any other types of restrictions or concerns, they want to reach out; and if they are reasonable, they would do those as well. He presented pictures to the Board but not the Clerk of what is on the neighbor’s property to the east, what they currently see from their property, and a picture of the neighbor to the east as they look through his client’s property to the mini-storage on the west. He stated if the Board allows their rezoning to go forward, they would be able to provide a buffer so that the neighbors would not see the mini-storage; and it may not be objectionable to them, but the type of zoning done with a responsible BDP would be a good neighbor and would be compatible and something the two properties could live with side-by-side. Mr. Nohrr stated they believe the request is in keeping with what has been granted in the area; they are willing to live by any type of reasonable conditions; and they have BU-2 to the west, will orientate everything away from the neighbor to the east, and will do what they can not to be intrusive. He stated one of the things the neighbor to the east expressed concern about was the eventual development of the property and utilization of the existing borrow pit as a lake; they already have their pond and are 320 feet away from the lake; they will not impact the lake; but the BU-2 that was given to the west abuts the lake. He stated if they need more landscaping around there, his client would be glad to do it; he is sure they can develop it in such a way that their property does not impact the lake that they want to develop eventually; and presented a photo to the Board, but not the Clerk.

Commissioner Pritchard stated Mr. Nohrr said he would be interested in doing something to enhance the property; what they have laid out is attractive; and inquired if it is a proposed warehouse or two proposed warehouses that would be approximately 18 feet high; with Mr. Nohrr responding it would be one story at about 18 feet in height. Commissioner Pritchard inquired if they have considered a more attractive roof; with Mr. Nohrr responding no, but it is something they could consider; and if Commissioner Pritchard has something specific in mind, they could talk generally about an upgrade of the roof from an aesthetic point of view. Commissioner Pritchard stated he read the objection from the gentleman who has the property next door; his concern is that the large acreage borrow pit has an opportunity perhaps for condos on his property; and should that come to fruition, the people who would live on the third, fourth, or whatever floor might have a more attractive roof to look at if it was a pitched metal roof or something other than the typical flat warehouse roof. He stated he does not know if that is part of the plan or what the cost would be, he is just asking if that is something they could consider. Mr. Nohrr stated they will seriously consider that.

Tina Combs of Fountain, Florida, presented a letter to the Board; stated she is here on behalf of her father Benny Rotgers, and read his letter as follows: “Honorable County Commissioners, I am 82 years old and I apologize my health prevents me from being here today in person. I would like you to know that my father purchased this land in 1921 and homesteaded in 1923. Our family provided the first dairy in this area. We have lived and worked this land for the past 80 years. We have lived a simple life and have saved and sacrificed to keep this land. Many times throughout the years we did without just so we could keep this land for our future retirement. We have watched business come and go in the area, yet we have stayed. We did not fight progress over the years. As I am sure you are aware, most of the surrounding properties on US 192 have been rezoned to light retail which we have had no objection to, with a buffer for the back-up portion of the properties. We are concerned that our property will be severely devalued by the potential new zoning of BU-2, as we have had numerous interests for condominium projects to take advantage of our beautiful 30-acre lake. If zoned BU-2, which to my understanding is hard zoning, it would allow anything from storage units to a junkyard also to include auto body repair. With these types of businesses, there is great concern of what kind of runoff they may produce. BU-2 zoning would destroy the views along the lake and would make a tremendous effect on the serenity and wildlife that now exists. There is an industrial area north of 192 off of Wickham Road. US 192, however, is the gateway into our County and into the cities of West Melbourne and Melbourne. I would think those cities would rather see the movie theaters and retail shops. I don’t see where the BU-2 zoning fits in. Recently my father was sent an amended binding development plan agreement. It offers and promises to put a four-foot hedge around the property, prohibit outdoor storage, and the list goes on. What happens when it is sold to the next person? This land borders the entire length of his property. A four-foot hedge will not benefit someone in a home or a condominium. If you were to place yourself in my parents’ shoes, you would see that they personally, for 60 years, have lived off this land. This lake that you call a borrow pit has fed his family with largemouth bass for years. It is the home of turtles, ducks, and fish. This land that is zoned agriculture, has grown oranges and plants to ornate the homes and feed the people in the area and has provided fruit for Florida tourists. Because of the traffic, dust, and exhaust, it is now almost impossible to grow any fruit or vegetables on the land. Do we need hard zoning? Together this couple spent their lives on this one piece of property, so when they were no longer able to work they could sell the property to take care of themselves. I believe most of us here plan for the future in this way. At 78 and 82 years of age, I believe they deserve our respect for staying as long as they have. Allowing this BU-2 zoning will hurt and devalue this property greatly. In the future, which is the County going to benefit more from in tax dollars, BU-2 zoning or possibly a large parcel of land with homes and condominiums? Would the County benefit more in tax revenue from condominiums or storage units? Please do not rezone this property to BU-2. Sincerely, Benny Rotgers.” Ms. Combs presented pictures to the Board, but not the Clerk. Vice Chairman Higgs stated the Board will return the pictures to Ms. Combs. Assistant County Attorney Eden Bentley inquired if the Board could keep them for the record; with Ms. Combs responding yes.

Mr. Nohrr advised the only thing he would say in response to Ms. Combs is that the BDP will run with the land so no matter what the ownership is, once they agree to it, it is binding and would be a berm four feet high, irrigated, and heavily landscaped. He stated they would go far beyond what Ms. Combs may be thinking is a buffer that would be between them; and they would stipulate that and make that part of the record.

Commissioner Carlson inquired if BU-2 next to AU requires a wall; with Zoning Manager Rick Enos responding yes, the Land Development Regulations require a wall, but in some circumstances, there are alternatives to that with landscaping; however, the first choice is a wall. Commissioner Carlson inquired if Mr. Nohrr knew that; with Mr. Nohrr responding they are aware of that and the berm would be in addition to the wall if they would like it. He stated they are trying to get buffering that might be more acceptable; and if the Board wants his client to do the wall, they would do it or do both.

Commissioner Pritchard stated he was under the impression that landscaping was supposed to be heavily vegetated much more than a four-foot hedge. Mr. Nohrr stated the term hedge was not used by him, but by Ms. Combs; they want to do a berm and heavily landscape it to four feet high with a lot of trees and do a nice vegetative buffer so it would be more aesthetically pleasing, not a hedge.

Sherry Williams with Natural Resources Management Office advised the Landscaping Ordinance requires Type A buffer along the eastern boundary, which is a 20-foot vegetative buffer achieving at least six feet in height; and they can achieve that through a wall or fence, but it has to be at least six feet high and 20 feet wide. She stated along the back of the property is a forested area, which under the Tree Preservation Ordinance will require a lot of the canopy to be preserved and a lot of the trees along that boundary to be preserved.

Commissioner Scarborough stated if they have a six-foot wall, it would be one thing; they are proposing a berm and as he understands that it would be landscaping on top of the berm; and if the berm is six feet, landscaping on top of that should begin to reach a more dense buffer; and inquired if Ms. Combs could give her thoughts on that; with Ms. Combs responding their concern is the entire length of their property. She stated the photos she presented have a view where a private home could go; they can look across the lake and see the warehouses; and they were supposed to put a four-foot buffer around that and a few hedges here and there. She stated she has photos but did not bring them with her; inside the chain-link fence, which is present at this time, they can see old trailers, steel, etc. and it is an eyesore; and she does not believe what is there now is what should be there. Mr. Nohrr responded he is not being argumentative but that property is not his client’s property. Commissioner Scarborough stated her concern is what Mr. Nohrr’s client would do will be like what exists; and she is using that as a point of reference of what her concerns are if the Board should proceed. Mr. Nohrr stated they will stipulate not to do what their neighbors to the west have done, and whatever their sins are hopefully will not be visited on them. Commissioner Scarborough stated he would feel more comfortable if it could be tabled and they could have the feeling of comfort generated by Mr. Nohrr working directly with Ms. Combs and putting a description together. He stated if they have a six-foot berm, it would be redundant to have a six-foot wall; and perhaps they could have additional landscaping and specify the types of plants for a totally opaque buffer.

Vice Chairman Higgs stated there might be an ability to work with the pond in the back to get a visual from the back of the Rotgers’ property and the lake; and if Mr. Nohrr works with the Rotgers, then their property would not be devalued; and it would be something the Board could consider. She stated the Board does not want to devalue someone’s property; and a sensitive handling of this perhaps could achieve agreement.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to continued Item 2 until September 4, 2003 for development of a binding development plan the Board can consider.

Commissioner Pritchard stated if the Board took action other than this tonight, some would win and some would lose; and he does not think that is the way it wants to go. He stated the property has been in the Rotgers family for over 80 years; the Mattress Barn has proposed what appears to be a nice use of its property; but he would like to see it resolved and have them both come back and say it is something they can live with. Ms. Combs stated she traveled six hours to get here today. Vice Chairman Higgs stated she understands that, but the Board wants to be sure it is not making an error in haste. Commissioner Scarborough suggested staff find a room for Mr. Nohrr and Ms. Combs to talk about the issues. Ms. Combs stated it is not up to her, she is speaking for her father. Commissioner Scarborough stated he understands that, but she can convey her father’s thoughts since she knows him better than the Board does.

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

Item 4. Section 25, Township 29, Range 37, Parcel 764 owned by Villasol Realty Co., proposed for removal of the Conditional Use Permit Z-7909 for commercial borrow pit, which was recommended for approval by the P&Z Board.

The Board continued Item 4 until September 4, 2003 earlier in the meeting.

Item 5. (Z0210201) Carmen Realino’s request for change from GU to EU-2 on 7? acres located on the north side of Morningside Drive, east of N. Banana River Drive, which was recommended for approval by the P&Z Board with a binding development plan limiting development to two residential homesites; returned to the P&Z Board by the Board of County Commissioners; and on April 10, 2003 the P&Z Board recommended approval with a BDP limiting development to three residential homesites.

Bruce Moia, representing Alan Zajdel, advised they have taken the proposal and tried to simplify it by taking the 4.2? acre lot and dividing it into two parcels; and as shown on the sketch, they are proposing to do a three-acre parcel and a one-acre parcel; and requested EU-2 zoning. He stated they tried to simplify the issues by asking for a one-time split and tried to meet the requirements of EU-2 zoning and be consistent with the County’s policies. He stated they are not proposing any wetland impacts and are providing access with no impact to the wetlands.

Commissioner Scarborough inquired if the other portion is not included tonight; with Mr. Moia responding it has been removed. Commissioner Scarborough inquired if that parcel cannot be built on under the current configuration; with Mr. Moia responding yes. Commissioner Scarborough stated the Board’s action tonight in no way sets any action that would deviate from the standard; with Mr. Moia responding they are aware of that and that is why they tried to make it simple.

Zoning Manager Rick Enos advised if the Board wants to approve the item tonight, staff will need an amended BDP because the original BDP has the three-lot proposal.

Vice Chairman Higgs inquired if Mr. Moia gets the amended BDP to staff, can staff put it on the Consent Agenda for the next meeting, assuming the Board approves the request tonight; with Mr. Enos responding yes.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve Item 5 with an amended binding development plan for two lots. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATIONS OF
JULY 7, 2003

Vice Chairman Higgs called for the public hearing to consider the recommendations of the Planning and Zoning Board, made at its public hearing on July 7, 2003 as follows:

Item 1. (Z0307501) James E. (Jr.) and Joanne L. Bennett’s request for CUP for wild animals in RR-1 zoning on 0.85 acre located on the west side of Ohio Street, north of Chicago Avenue, which was requested to table to September 8, 2003 P&Z meeting and October 2, 2003 Board of County Commissioners meeting.

The Item was continued earlier in the meeting to the October 2, 2003 Board of County Commissioners meeting.

Item 2. (Z0307502) Brevard County Board of County Commissioners, on its own motion and pursuant to Future Land Use policies 15.1 and 15.3, authorized administrative rezoning on property owned by D. D. Real Estate Holdings, Inc. and Dragon Lady’s Den of Brevard, Inc. that proposes a Small Scale Plan Amendment (03S.8) to change the Future Land Use Map designation from recreational to community commercial; and a change in zoning from BU-1 and GML to all BU-1 and removal of the existing BCP on 0.47 acre located on the east side of Hwy. A1A, south of Eau Gallie Boulevard, which was recommended for approval by the LPA and P&Z Board.

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

Item 3. (Z0307503) Howard W. (Jr.) and Ellen B. Pettengill’s request for change from GU to EU on 1.62 acres located on the west side of N. Riverside Drive, north of Watson Drive, which was recommended for approval by the P&Z Board with a BDP limiting development to one homesite.

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

Item 4. (Z0307101) Oscar R. and Suzanne K. Cornelius’ request for change from GU to AU on 1.16 acres located on the east side of Cherokee Avenue, north of Angelica Street, which was recommended for approval by the P&Z Board.

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

Item 5. (Z0307102) David G. and Sandra L. Butler’s request for change from GU to AU on 7.47 acres located on the east side of Adamson Road, north of Sorrel Drive, also having frontage along the west side of I-95 right-of-way, which was recommended for approval by the P&Z Board.

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

Item 7. (Z0307104) Millennium Development of Titusville, L.L.C. and Titusville Holdings, Inc.’s request for change from GU and PUD to all PUD on 1,132.6 acres located on the north side of SR 46, east of I-95, which was recommended for approval by the P&Z Board.

The Item was continued earlier in the meeting to the September 4, 2003 Board of County Commissioners meeting.

Item 8. (Z0307105) Frank and Christine Whiteley’s request for change from AU to EU on 1.37 acres located on both sides of Indian River Drive, south of Blacks Road, which was recommended for approval by the P&Z Board.

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

Item 6. (Z0307103) Norman Hosan’s request for change from RU-2-10 to BU-1-A on 0.46 acre located on the southwest corner of Lutz Road and U.S. 1, which was recommended for approval by the P&Z Board.

Luann Wiler advised her daughter owns Scissors Edge Beauty Salon, which as been operating out of the Cocoa Professional Plaza for about the last 12 years; they purchased the property located at U.S. 1 and Lutz Road; and presented pictures to the Board, but not the Clerk of the existing structure and property. She stated the property was used to sell boats and cars and for continuous garage sales; they want to use the existing structure as a beauty shop; they had an engineer come out and determine that parking could be put in without any problems; and all the properties around it already have BU-1 zoning.

Kenneth Toole of Cocoa advised Commissioner Pritchard spoke of the men serving overseas; Ms. Wiler pointed out there were yard sales on the property; and those were done by the mother of a soldier, Specialist Richard F. Snabley, currently serving in Iraq, so she could take that place and turn it into a home for her children, the little brother and sisters of Specialist Snabley. He stated he has seen that woman struggle year-after-year to make a home there for her family and to bring up her children in the manner in which she brought up Specialist Snabley who is serving honorably; and he would like to see justice. He stated the Board spoke of justice when it did the pledge to the flag; it spoke of prayers for the servicemen; and inquired what about the families of servicemen who struggle every day to keep a roof over their heads and food on the tables. He inquired how can the Board stand and pray for the well-being of the servicemen and neglect their families and have them dispossessed and thrown back to the same trailer park they came out of. He stated they struggled and fought every day; the place was a mess when they moved in there; Mr. Hosan let them struggle; there was no toilet or shower, and it was a complete wreck; and they struggled every day to bring that place up and fix the broken toilet. He stated it is a disgrace and abomination to take that woman and all the work she has put into the place, dispossess her, and put her on the street to turn the place into a beauty parlor; and it is a disgrace to stand and pray for the servicemen, then treat their families in a disgraceful fashion.

Ms. Wiler stated the property is vacant; she purchased it approximately two months ago; and she did not know there was anyone objecting to it. She stated they are not asking to make structural changes to the building, but they need to landscape and improve the appearance of the property.

Commissioner Scarborough inquired if Ms. Wiler knew the Snableys; with Ms. Wiler responding no, but there was a Mr. Gray living there when she purchased the property. Commissioner Carlson inquired if Ms. Wiler knows there is no one living on the property now; with Ms. Wiler responding she knows there is no one living there because she has been working on it and cleaning it out. Ms. Wiler stated they took about seven loads of trash to the landfill and have much more to go. Commissioner Scarborough requested to hear from Mr. Toole.

Mr. Toole stated Mr. Gray is the second husband of Ms. Snabley; the stuff they hauled off was part of his business; and it is a shame to treat them this way. He stated Ms. Wiler knew they were living there; he tried to purchase the property but they wanted too much for it; and he wants to go on record stating if the Board can do this, it can do anything to anybody. He stated it is wrong; and if it does this, it is not on the side of the angels. He noted the Snableys could not come because they are sick, but if the Board wants, it can meet them later. Vice Chairman Higgs stated the owner was Mr. Hosan; with Mr. Toole responding yes, and he died. He stated he does not know if there was anything in writing; he was going to sell it to the Snableys; but he died before that happened.

Commissioner Pritchard stated the County has several programs to help families like the Snableys; Assistant County Manager Peggy Busacca suggested Mr. Toole provide her with his phone number so County staff can get in touch with him to see what they can do for the family; but advised the issue tonight is zoning. He stated he is glad Mr. Toole brought it to the Board’s attention because it could be something the County can assist with; and requested Mr. Toole provide his phone number to Ms. Busacca so she can get in touch with him and see what the County can do for the Snabley family.

Commissioner Scarborough inquired if the Grays or Snableys had an interest in the property and sold their interest; with Ms. Wiler responding they had no interest in the property; the property was owned by Mr. Hosan, who passed away; and she purchased the property from his son. Commissioner Scarborough inquired what about the Grays and Snableys; with Ms. Wiler responding they were probably tenants or renters at one time, but they had no interest. Commissioner Scarborough inquired when did Ms. Wiler purchase the property; with Ms. Wiler responding July 3, 2003, and it was vacant at the time of closing. Commissioner Scarborough stated while he is concerned about the Snableys and the County will use its resources to help them, Ms. Wiler paid for a piece of property and has certain rights to request rezoning, which does not appear to be inconsistent with the area; so he will move approval.

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

Item 9. (Z0307201) FBC of Brevard, Inc.’s request for change from BU-1 to RU-2-15 on 2.33 acres located on the southeast corner of 20th Street and Orlando Avenue (Hwy. A1A), which was requested for tabling by the applicant to August 11, 2003 P&Z Board meeting and September 4, 2003 Board of County Commissioners meeting.

Item 9 was continued earlier in the meeting to September 4, 2003 Board of County Commissioners meeting.

Item 10. (Z0307301) Bill Auble, Inc.’s request for an amendment to the existing SP in a BU-1 zoning classification on 4.26 acres located on the west side of U.S. 1, east of Third Avenue and northwest of Daytona Boulevard, which was recommended for approval by the P&Z Board with a BDP.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to approve Item 10 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 11. (Z0307401) Park Place at Suntree, L.P.’s request for CUP for alcoholic beverages for on-premises consumption in BU-1 zoning classification on 1.81 acres located on the north side of Wickham Road, west of Forest Lake Drive, which was recommended for approval by the P&Z Board as accessory to a restaurant only.

Commissioner Carlson inquired if there are no other cuts in the median; with Mr. Enos responding there is no cut for now, but there is one a few hundred feet or so to the west; and it is right in and right out.

Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to approve Item 11 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 12. (Z0307402) Brevard County Board of County Commissioners, on its own motion and pursuant to Future Land Use Policies 15.1 and 15.3, authorized administrative rezoning on property owned by Tuscany, Inc. from IU to BU-2 on 2.58? acres located on the NW corner of Suntree Boulevard and Turn Road, which was recommended for approval by the P&Z Board.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to approve Item 12 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 13. (Z0305105) Brevard County Board of County Commissioners, on its own motion on March 6, 2003 and pursuant to Future Land Use Policy 15.1 authorized administrative rezoning on property owned by Brevard County, City of Cocoa, and State of Florida ITTF, to change from AU and GML to GML-H on 132.26 acres located on the north side of Camp Road, east of Grissom Parkway, which was recommended for approval by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to approve Item 13 as recommended by the P&Z Board. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: PORT ST. JOHN DEPENDENT SPECIAL DISTRICT BOARD
RECOMMENDATIONS OF JULY 9, 2003

Vice Chairman Higgs called for the public hearing to consider the recommendation of Port St. John Dependent Special District Board, made at its public hearing on July 9, 2003, as follows:

Item 1. (PSJ30701) Charles E. Arnold, Jr.’s request for change from GU and RR-1 to AU on 3.96 acres located at the western terminus of Dunbar Street, which was recommended for approval by the Port St. John Dependent Special District Board.

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

PUBLIC HEARING, RE: NORTH MERRITT ISLAND DEPENDENT SPECIAL DISTRICT
BOARD RECOMMENDATIONS OF JULY 10, 2003

Vice Chairman Higgs called for the public hearing to consider the recommendation of North Merritt Island Dependent Special District Board, made at its public hearing on July 10, 2003 as follows:

Item 1. (NMI30701) Lutheran Retirement Campus of Merritt Island, Inc. and Cedar Creek Life Center, Inc.’s request for a conditional use permit for an adult congregate living facility in a PUD on 2.147 acres located at the southeast corner of Hall Road and Bella Vita Avenue, which was recommended for approval by the North Merritt Island Dependent Special District Board.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve Item 1 as recommended by the North Merritt Island Dependent Special District Board. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE EXEMPTING AMATEUR RADIO SERVICE
OPERATORS FROM PROVISIONS REGULATING HEIGHT OF TOWERS AND
ANTENNAS

Vice Chairman Higgs called for the public hearing to consider an ordinance amending Chapter 62, Sections 62-2129 and 62-1953, exempting amateur radio service operators from provisions regulating height of towers and antennas.

Hank Phillips of Titusville stated there is significant agreement on the importance of volunteer amateur radio operations to the County’s successful management of emergencies and the critical role adequate antenna systems play in providing that capability now that the restrictive zoning regulations that caused the County to be out of compliance with State and federal regulations and posed an insurmountable impediment to amateur radio operators communications, he would like to add a final word of caution—transferring red tape and fees inadvertently from a zoning regulation to a construction permitting regulation will fail to accomplish the requirement to accommodate amateur radio operators in Brevard County. He stated without such accommodations amateurs cannot provide the County with emergency communications, and the County cannot comply with State and federal regulations. He requested the Board achieve a complete solution to the impediment while it is clearly focused before it, otherwise they will be back.

Vice Chairman Higgs advised the issue of the building permit is still a question, and she has a question regarding the receiving-only antennas; and requested Mr. Enos provide an explanation.

Zoning Manager Rick Enos advised he received a memo from Building Official Carroll Brown that indicated, after a survey of surrounding counties and cities, typically those that are exempting amateur radio operators’ installations are also exempting them from building permit process; and Mr. Brown indicated he would expect to do the same thing in Brevard County.

Vice Chairman Higgs advised Section 62-1953 reads in part, “This section shall not apply to antennas or antenna support structures owned by amateur radio service operators licensed by the FCC or to receive only antennas”; and the issue was raised that receive-only antennas may not be owned by licensed operators. Mr. Enos stated that is correct; it is one of four types of antennas that were in the original proposal; the Board asked staff to remove the last two but did not direct staff to remove that type; however, if the Board does not want to include it, the Board can strike that tonight. He stated research of several other Ordinances in the State revealed that they exempt amateurs and in some cases receive-only was also exempt.

Vice Chairman Higgs advised the audience if they are in support of the ordinance and do not wish to make comments at this time, the Board will be happy to let them sit silently, but they are welcome to speak if they want to.

David Harris, Chairperson for Brevard County VOAD, which is a representative organization that works with all disaster relief organizations, stated he wants to communicate his support and that of the organization for the amateurs. He stated they play a very critical role and the free exercise of amateur radio is something they want in their community; they have an incredible role to play in disaster relief and support; and they are active in many areas in the community. He stated they work with the amateurs and they are an incredible asset to the community; and encouraged free access be continued and provisions be stated as they requested because they are a tremendous asset.

Robert Keim of Titusville Amateur Radio Club, thanked the Board for its efforts to get the issue resolved; and stated there are a couple of issues that need to be addressed. He stated receive- only antennas were introduced at the last hearing and voted on; and that is a concern now. He stated he understands the administrative support of Mr. Brown is what is going to keep the issue out of the building permit process because the way it is worded, it says they have to comply with building permits and building permit processes; and inquired if that is correct. Vice Chairperson Higgs stated that is the way it is written now. Mr. Keim stated if that language remains in the ordinance, it is then an administrative decision; if Mr. Brown leaves the County tomorrow and someone else comes in, they are back doing this all over again and they do not want to be; and inquired if there is any way to readdress that issue tonight. He suggested the building permit process be deleted; stated the bulk of the cities and counties use a very simple, clear, and concise wording; and many include receive-only antennas, but that is a loophole many counties do not realize can become a problem. Mr. Keim stated “this section shall not apply to antennas or antenna support structures owned and/or operated by amateur radio service operators licensed by the FCC” should be added, as it is a clear and concise way of stating they are exempt without leaving the catch phrase of being subject to building permits. He stated although right now they might be sharing an administrative decision to not put them through the building permit process, that does not guarantee them that in the future; they need one amendment that will solidify it for the future so they do not have to revisit the issue again; and requested the Board consider that and address the issue before the vote.

Robert Green of Port St. John advised he moved to Florida last year looking forward to having the opportunity to put up an antenna in a large lot he is lucky to have; and he supports what Mr. Keim said that they need to solidify and have clear-cut wording to eliminate any future hassles. He stated changes of programs and directors can create problems; and it would benefit the County and the citizens if they can let the time of the Board go forward and be used for other issues that have a benefit to the County. He stated a year ago in Maryland a Class V tornado went through a city; the first person to warn the community and initiate emergency management activities was a HAM radio operator, a nurse working in the county hospital; she saw the tornado bearing down on the hospital and put out the alert through towers and repeaters; and the HAM radios were in operation before the county emergency management agency. Mr. Green stated they had a low-grade tornado in their community yesterday and it brought back that memory of the value of HAM radio operators and the backup systems they have; and encouraged the Board to solidify the issues and make everything clear-cut.

Horace “Bud” Hughes of Titusville thanked the Board for permitting the prayer and the Pledge of Allegiance and for recognizing the Boy Scouts. He stated he voted for the Commissioners because he believed they would uphold the laws; and having said that, he cannot believe the laws that are on the books that do not agree with the federal laws. He requested the Board give consideration to what Mr. Keim proposed, make itself familiar with the federal and State laws, and make its laws in compliance with those laws. He thanked the Board for its patience given the amateur radio operators.

Robert B. Farrington of Port St. John advised when he walked out of the hearing on July 22 he was visibly angry and still is; a person familiar with the style and procedures employed by the Board tried to calm him by saying their request was zipping along at great speed; the same can be said of a shell game at a carnival; and the faster the hand moves, the more difficult it is to keep up with the location of the pea. He stated he has attended four hearings on this issue; the only opposition to the exemption of federally-licensed amateur radio operators from the County antenna regulations has been one little old lady from Port St. John who was concerned about the danger of passing airplanes; and out of the blue, they encountered a major change which would extend exemption to unregulated segments of the communication spectrum including the almost lawless elements of the citizen banders. Mr. Farrington stated on July 22 Commissioner Higgs waited until the end of the hearing, displaying a note she was handed by staff to require building permits, fees, and setbacks; not one person raised that suggestion in the public meeting; and it came from staff, which is interested in keeping itself in the appearance of being overbooked and backlogged. He called upon the Commissioners and staff to come forth now with whatever further proposals they have while the public has a chance to say something in rebuttal.

Vice Chairman Higgs advised the concerns were hers; and if she had a draft of some language from staff, Mr. Farrington should not blame that on them but blame it on her because it was her suggestion; so his statement is not accurate.

Paul Felix Schott of Titusville advised his entire family are HAM radio operators; he was a Scout Master and every Scout under his leadership got HAM radio licenses; and all of them are proud that they can erect an antenna in their yards or house in the City of Chicago and help support the U.S. marshals. He stated it was one of the very first citizen band and radio patrols of that nature; and it was run by his family. He stated every time there was a storm, weather spotters were almost all HAM radio operators; he was chair of Central Florida for Crime Commission for quite some time, as well as many other commissions for crime and safety; and they depended heavily on HAM radio operators who carry their HAM radios with them everywhere they go. He stated when there is bad weather or they see accidents on the roads, they report those immediately to other people; and the word gets out very quickly to the authorities. He stated it is vital for communities with citizens who want to become HAM radio operators to not give them hurdles to jump through in order to raise antennas in their yards or keep antennas they have existing there; it does not offend the neighbors or anyone in the County; and it is only a way to make money off them through regulations.

Vice Chairman Higgs advised of a note from staff advising there is a red Aerostar Minivan in the parking lot with its lights on, license plate F76SEP.

Daniel Fisher of Palm Bay, member of Platinum Coast Amateur Radio Society, stated he has been to most of the meetings addressing this issue, but missed the last one and discovered the language was added that would put antenna structures through a building permit process and that the building official is not going to require building permits at this point. He stated he has been in local government for the past 20 years; he worked for five department heads over the same agency; and every time they got a new department head, policies changed. He stated he knows that because he wrote policies for various department heads; so dovetailing what Mr. Keim said, if the current building official happens to leave, another one could change policy or the one that is there could; and he does not think that is what they need to do. He stated Palm Bay City Council, under Chairman Colon’s urging, mandated a neighborhood policing unit when she was a councilwoman because of the fact that policies can change. Mr. Fisher stated they had wording that would put the County completely in step with municipalities and make everything simple and consistent; and the Board needs to eliminate the superfluous verbiage so they do not have to do this again in a couple of years.

Mike Stallings of Cocoa stated he supports the amateur radio operators and Mr. Keim and would like to see the Board adopt his suggestions and eliminate all the stuff so they do not have to come back and do this again. He stated to change the subject for information purposes, in January it was very cold and his house was vibrating; the power plant that everyone said would not have impact on him a mile away was running at full tilt; and it shook all the houses in his community.

Janis Walters of Valkaria advised the Building Department memo from Carroll Brown states that no building permit has ever been required for amateur radio antennas and support structures; his reason for this is the language in federal PRB-1 and Florida Statutes 125.961; and those State and federal laws require the minimum local regulation of amateur radio to achieve a local governing body’s legitimate purpose. She stated the language proposed in the ordinance amendment states in spite of the exemptions from Sections 62-1953 and 62-2129, the requirements of other County Land Development Regulations and the Florida Uniform Building Code shall still apply; and inquired what are the other County Land Development Regulations, what is the County’s legitimate purpose for applying them to amateur radio antennas, and how are amateur radio operators to be informed of those requirements without going through the permitting process. She requested the Board strike the reference to the County Land Development Regulations and the Florida Uniform Building Code, and pass the exemption for amateur radio operators.

Curt Lorenc of Valkaria advised presently the Tower Ordinance is in violation of State and federal laws; and hopefully this evening the Board can come up with an amendment to comply with those laws. He stated it requires the minimum practical regulation to reasonably accommodate the authority’s legitimate purpose; to date they have not had any speakers opposed to the exemption; they had one lady from Port St. John who had a good question; and on the handout he brought is the wording of the proposed ordinance. He requested the Board remove “for receiving antennas only,” as it is a loophole that anyone can put up a tower and say it is a receive-only antenna and slide in under the exemption. He stated if they are exempt, they have to be on their best behavior; and requested the Board exempt the amateur radio operators. Mr. Lorenc stated “receive-only antennas for the general public” was not advertised; since it was not advertised, it is outside the purview of amateur radio; so it would be good to remove that. He stated the second part has to do with the Uniform Building Code; and requested that be removed, as it would not meet the minimum practical regulation requirement. He stated federal and State laws preempt any agreement in adopting the Uniform Building Code; there are approximately 4,000 amateur radio operators in Brevard County; they supply very low cost public safety services; and since the County is looking at a 1% sales tax when it has volunteers doing no cost public service, they should be acknowledged and should look very strongly at accommodating them. He stated they will be involved in the next election and they want to keep the friends of amateur radio operators on the Board; and requested the Board pass the ordinance as written minus those two items.

Commissioner Scarborough inquired if leaving “receive-only antennas” liberalizes the issue and removing it further restricts it, and is there any reason the Board is compelled by law to put those words in the ordinance; with Mr. Enos responding no, the only exemption required by law is for amateur radio operators. Commissioner Scarborough stated Ms. Walters asked the question about other applicable Land Development Regulations; and inquired what would that refer to; with Assistant County Manager Peggy Busacca responding the discussion at the last meeting had to do with setbacks because there was a concern the structures could be built on the property line. Commissioner Scarborough inquired if it could be defined precisely and specifically so people coming in six months later asking about the intent can understand it. He stated if the Board is going to apply setback restrictions, it needs to be specific. Mr. Keim stated it is not inclusive of guy wires, which is what Commissioner Pritchard added at the last meeting. Commissioner Scarborough stated he understands that people put up antennas next to their homes; with Mr. Keim responding that is normally where they are. Commissioner Scarborough stated the Board would not want a setback from the home but would want a setback from the property line; with Mr. Keim responding from somebody else’s property line is how he took it. Commissioner Scarborough stated if that is the only item being referred to, it would be prudent to substitute property line setbacks for other Land Development Regulations. Ms. Busacca stated that would be clearer. Commissioner Scarborough stated what they are asking for is clarification. He stated the clincher is the Florida Uniform Building Code; if Florida law requires something, there is nothing the Board can do to exempt anyone from that law; if the State law requires it, it will still apply even if the Board removes it from the ordinance; so he does not have a problem removing it. He stated he will move adoption of the ordinance with the changes Mr. Lorenc suggested.

Motion by Commissioner Scarborough, to adopt an ordinance amending Chapter 62, Land Development Regulations, Code of Ordinances of Brevard County, Florida; amending Sections 62-2129 and 62-1953 by providing an exemption to the provisions regulating the height of towers and antennas to amateur radio service operators, providing for conflicting provisions, providing for severability; providing for area encompassed; providing an effective date; and providing for inclusion in the Brevard County Code of Ordinances, as amended to remove “or to receive-only antennas,” ”all other applicable land development regulations,” and the “Florida Uniform Building Code.”

Vice Chairman Higgs inquired if the accessory structure setbacks from the property line are included; with Commissioner Scarborough responding yes, the back and side setbacks. Vice Chairman Higgs stated the Board needs to be sure it has the right wording. Mr. Enos stated they can put in accessory structure setbacks because it will keep it behind the front building line of the house and still meet accessory structure setbacks from the side and rear, which are less than the principal structure setback.

Commissioner Pritchard seconded the motion as amended. Vice Chairman Higgs called for a vote on the motion as amended. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE PROVIDING FOR OUTDOOR RESTAURANT
SEATING IN BU-1 AND BU-2 ZONING CLASSIFICATIONS

Vice Chairman Higgs called for the public hearing to consider an ordinance amending Chapter 62, Sections 62-1482 and 62-1483, and creating Section 62-1837.9, Outdoor Restaurant Seating in BU-1 and BU-2 Zoning Classifications.

There being no objections heard, motion was made by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt an Ordinance amending Chapter 62, Land Development Regulations, Code of Ordinances of Brevard County, Florida; amending Section 62-1482 and 62-1483 by adding “outdoor restaurant seating” to the list of permitted uses with conditions in the BU-1 and BU-2 zoning classifications; creating Section 62-1837.9 establishing conditions for the provision of outdoor seating areas for restaurants; providing for conflicting provisions; providing for severability; providing for area encompassed; providing an effective date; and providing for inclusion in the Brevard County Code of Ordinances. Motion carried and ordered unanimously.

Upon motion and vote, the meeting adjourned at 7:05 p.m.

ATTEST: ____________________________________
NANCY HIGGS, VICE CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

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SCOTT ELLIS, CLERK

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