The Board of County Commissioners of Brevard County, Florida, met in regular session on August 5, 1999, at 5:38 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Truman Scarborough, Commissioners Randy O'Brien, Nancy Higgs, Sue Carlson, and Helen Voltz, County Attorney Scott Knox, and Assistant County Manager Peggy Busacca.

The Invocation was given by Commissioner Helen Voltz, District 5.

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

REPORT, RE: PERFORMANCE BASED ZONING AND STIPULATED AGREEMENT

Commissioner Voltz advised on Tuesday the Board will be discussing performance based zoning and a stipulated settlement agreement with Constellation Power regarding the Oleander Power Plant; and inquired if the agreement should be considered first so it will truly be a separate issue; with Commissioner Carlson responding that is a fine idea. Commissioner Higgs stated the Board should discuss what are good standards before the specifics of the settlement agreement, so the standards should come before the agreement.

Chairman Scarborough advised there are people who want to talk about one subject; there are elements in the performance based zoning that need to be separate; so he will support different times for each item.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to schedule the stipulated settlement agreement concerning Oleander power plant on August 10, 1999 at 10:00 a.m. in the Commission Room, and performance base zoning ordinance at 1:00 on the same date in the Florida Room. Motion carried and ordered; Commissioner Higgs voted nay.

REPORT, RE: TABLING OF ZONING ITEMS

Chairman Scarborough inquired if there are any items the Commissioners intend to table that should be considered now so people do not have to sit through the entire meeting only to find out their item was tabled.

Commissioner Voltz recommended Items 29 and 30 be tabled. Zoning Official Rick Enos recommended Item 3 of the North Merritt Island hearing be tabled.

Motion by Commissioner Higgs, seconded by Commissioner Voltz, to table Items 29, 30 and North Merritt Island Item 3. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: TABLED ITEMS OF MAY 3, 1999 PLANNING AND ZONING BOARD HEARING, AND MAY 5, 1999 PORT ST. JOHN BOARD HEARING

Chairman Scarborough called for the public hearing to consider tabled items of May 3, 1999 Planning and Zoning (P&Z) Board hearing and May 5, 1999 Port St. John Board hearing as follows:

Item 1. (Z9905405) A. Duda & Sons, Inc.'s request for change from AU and PUD to all PUD on 152.69? acres located west of St. Andrews Isle Subdivision, west of the southern terminus of St. Andrews Boulevard, which was recommended for approval by the P&Z Board with amended legal description.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to approve Item 1 as recommended by the P&Z Board.

Commissioner Higgs advised staff provided statistics on the number of cars on the roadway; the statistics do not reflect those subdivisions and developments approved and not built; so the numbers do not reflect the real potential on that segment of Wickham Road.

Chairman Scarborough called for a vote on the motion. Motion carried and ordered unanimously. (See page for Zoning Resolution.)

Item 2. (PSJ90501) Patsy J. Clark's request for CUP for alcoholic beverages on-premises consumption (beer and wine only) in BU-1 on 0.56 acre located on the west side of U.S. 1, north of Fay Boulevard, which was approved by the Port St. John Special District Board.

Attorney Tim Pickles, representing the applicant, advised the item was tabled from May 20, 1999 pending a traffic analysis; he was not present at the last hearing, but read the transcripts in its entirety; and the primary issues that concerned the Board were traffic and intended use of the property. He stated the Board heard testimony on whether it was going to be a Dogs R Us like the Titusville establishment; and they are prepared to discuss the traffic analysis and present evidence concerning the nature of the intended use. He stated the current owner of Dogs R Us in Titusville, who also intends to be the owner of the proposed establishment, will present evidence of their community involvement and nature of activity of the current Dogs R Us; and he wants to present evidence or testimony, or rebut some of the police reports that were submitted at the last hearing because some are clearly in error. He presented a packet to the Board; and inquired if Ms. Hofmann can speak about the items; with Chairman Scarborough responding affirmatively. Mr. Pickles stated he would like to present evidence of the existing use at Dogs R Us in Titusville; it is a family establishment even though it has a bar; and he will provide evidence that the proposed use of Dogs R Us in Port St. John will not rise to that level. He advised the Dogs R Us in Titusville has a full liquor bar and 140 parking spaces; and the proposed site plan for Dogs R Us in Port St. John, or whatever name it will take, will have 35 parking spaces and no bar. He stated the issues of compatibility were addressed at the previous meeting by their expert; it is compatible with the surrounding uses; there are other restaurants that serve beer and wine in the area directly to the south; and to the north is a retention pond, Parrish Medical Center, and a convenience store that sells beer and wine for offsite consumption. He introduced Lori Hofmann, the current owner of Dogs R Us in Titusville.

Lori Hofmann reiterated there will not be a liquor license; and it will be a restaurant and not a bar. She stated the current restaurant caters to families, and kids eat free; the dress code is conducive to a family environment; the bar/lounge is in the back; and before families are sat back there, they are asked if they want to be seated in the lounge. She stated they try not to sit anyone back there who has children. She advised the restaurant in Port St. John will not have a bar; and it is to be families only with a family environment. Ms. Hofmann advised they participate in the community with signs at baseball fields, sponsor soccer teams and baseball teams, advertise in Astronaut and Titusville High Schools and St. Teresa's year books; and they donate to various charities, many of which help children. She stated they have a responsible vendor program; and many people from Port St. John came to them and asked when they were going to build in Port St. John, so this was not a whim. She stated with the responsible vendor program, they will not serve alcohol to anyone who is intoxicated or appears to be intoxicated; they offer rides or call cabs and pay for the cabs; they do random drug testing on all their employees; if any come back positive, they are terminated immediately; and that goes for all management staff as well. She stated they have strict policies which are reviewed with all employees at the time they are hired; one policy is the dress code which must be appropriate and conducive to family; she has three children and would not like it if her children went into a place she did not feel was appropriate for them; so she keeps her restaurant appropriate for children. Ms. Hofmann advised some of the police reports that were submitted were big discrepancies; out of the 40 or so reports, one was an obscene phone call from Fred Flintstone; the call came from the Titusville Police Department; and taping of the report was 29 seconds. She stated there were six property checks from the reports submitted; property checks are when the manager calls and says she would like a drive by at night because she does not want to walk out alone, or if the police are circling the property and do a report in their parking lot at night. She stated many Titusville Police and Deputy Sheriffs frequently come into their restaurant and eat, so they do her favors and sit in their parking lot to man and watch it; there was a time a year ago when six restaurants in Titusville were robbed; so they were going to various restaurant parking lots and writing their reports. She stated there were four suspicious vehicles; once again police were protecting their property and noticed suspicious vehicles and wrote a report on it; and there were two robberies. She stated an off-duty officer was eating in the restaurant and noticed cars being broken into in the parking lot; and he stopped the robberies from happening. She advised there were three stolen property reports; one was someone who stole the Dogs R Us sign; one was a walk out which is stealing food, so they called the police; and one was a cell phone that was reported missing 48 hours later. Ms. Hofmann advised there were six traffic reports; two abandoned vehicles, one was a hit and run in their lot, three were traffic citations where police pulled people over in their parking lot so it has their address; and six reports were written at times when the restaurant was not even open. She stated nine of the reports were not even at their address; one was a burglary of paddle boats across the street; one was a fight that started at the bank and got carried into their parking lot; and one was for a gentleman who was having a heart attack so they called the paramedics and were cited with a police report because they were looking out for their customer's health. She stated the police reports that were brought to the Board need to be reviewed carefully; it is not a bad restaurant and is not where fights happen and people get drunk or whatever else everybody has said; it is a family restaurant; and she would not be here if she did not believe in it, and would not be going forth with a new restaurant. She stated she would be happy to answer any questions.

Chairman Scarborough advised he has four cards from people who do not want to speak but who are in opposition to the request, and one card states brick wall in back, sell hard liquor, entrance and exit on U.S. 1, hours of operation. Ms. Hofmann advised they will close at 9:00 p.m. Sundays through Thursdays, and at 11:00 p.m. on Fridays and Saturdays. She noted Publix is opened later than that and sells beer and wine. Chairman Scarborough inquired about a pick-up window; with Ms. Hofmann responding they plans were changed and they are debating a drive-through pick-up window. Commissioner Carlson inquired if only food would be served out of the window; with Ms. Hofmann responding yes.

Commissioner Carlson advised she has a letter from Mrs. Smith with a list of questions and reference to a brick wall being constructed on the back side of the property as a deterrent for other traffic. Ms. Hofmann stated she understands they want a fence that cannot be seen through, but she does not know if they asked for a brick wall. Commissioner Carlson stated there was a question about the traffic report, the contents, and what day it was done; and inquired if anyone can answer that; with Mr. Pickles responding the traffic analyst is here and may be able to address that. He stated there is no brick wall currently, and the people may be addressing whether his client would be willing to block off the easement. He stated they are willing to block the easement as stated in the previous hearing; but the type of structure that would be constructed to stop traffic is subject to debate; and they have not discussed that.

Rhonda Peeperschmitt advised she provided the traffic study on behalf of the County; the traffic count data that was utilized was the average annual data provided by Florida Department of Transportation; it was not a count done specifically for the site; so it is what DOT published as average of counts on U.S. 1 in that area. She stated the trip generation was based on projected trip generation for the specific site based on the ITE Manual.

Chairman Scarborough advised he has a copy of a memorandum from the County Attorney with two questions Commissioner Carlson asked; and inquired if she wanted to expound on it. Commissioner Carlson advised she met with the Smiths in her office; they were concerned about the bar aspect, but it sounds like some of that has been resolved; they were also worried about the restaurant being used as a hangout; and that was part of the reason they brought out those citations which do not sound like they were too conclusive. She stated she asked the County Attorney to put together some language, but she does not know if it really applies any longer. Chairman Scarborough stated it may be good to read the memo into the record or let Mr. Knox do it since he wrote it.

County Attorney Scott Knox advised Commissioner Carlson asked for possible conditions relating to the family restaurant nature of the use being proposed; and he proposed some language as follows: "Condition 1, the premises shall be operated as a family restaurant and not as a sports bar or any other type of bar. The purposes of this condition as a family restaurant is defined as an eating establishment where at least 51% of the gross revenues is derived from the sale of food and nonalcoholic beverages. Condition 2. In the event any dispute arises as to whether the permitted premises is being operated primarily as a family restaurant, the permittee shall allow County representatives to inspect its record of gross receipts and/or sales tax returns to determine whether the criteria set forth in Condition 1 had been complied with."

Mr. Pickles advised they are in agreement with both of those conditions.

Commissioner Higgs inquired if the Board could impose a condition that all beverage orders must include food, and would that clarify it further in terms of a family restaurant; with Mr. Knox responding that is probably going too far and would be impossible to monitor unless someone was sitting in the restaurant at all times. Commissioner Higgs inquired how would they monitor 51%; with Mr. Knox responding their books. Commissioner O'Brien stated that is overstepping the bounds of reality.

Commissioner Voltz advised she also met with Mr. and Mrs. Smith and another lady and talked about the issues.

Betty Yates stated her main concern was that it be a family-oriented restaurant which is needed in Port St. John; and after hearing the owner speak, it would be more than acceptable. She stated there are seniors who like to go out and eat, but there are also young people with families; they do not need to encourage liquor, beer, or wine drinking; it is not a good example to set for children; and they need to work together for things that are good for the population of Port St. John and not be at odds with each other. She stated another concern is whether there will be something in the back so traffic will not go toward existing houses.

Kathryn Smith stated she started the discussion with a letter of stipulations and concerns regarding Dogs R Us having a family restaurant in Port St. John; she itemized her concerns; and read them as follows: "What is a family restaurant? Definition of a family restaurant. The premises shall be operated as a family restaurant and not as a sports bar or any type of bar. A family restaurant is defined as an eating establishment in which 51% of the gross revenue is derived from the sale of food and nonalcoholic beverages. (2) In the event any dispute arises as to whether the permitted premises is being operated primarily as a family restaurant, the permittee shall allow the County representative to inspect the records of gross receipts and/or the sales tax to determine whether the criteria set forth in condition 1 has been complied with. (3) Concern about the selling of hard liquor. (4) Entrance in and out off U.S. 1 is a traffic hazard on U.S. 1. (5) Hours of operation. (6) There is no median opening onto U.S. 1. (7) Would the pickup window be for food only? (8) A wall be constructed to deter other traffic going in and out behind the bank. What day and time of day was the traffic report made? More law enforcement would be needed. A sports bar would be a hangout for young adults. Stipulation of no sports bar." She requested the Board consider her statements in making its decision. Chairman Scarborough suggested Ms. Smith provide her statements to the Attorney representing the applicant so he can respond to them.

Robert Smith stated he lives behind the Medical Center and knows the traffic situation because he travels that way all the time; there is no direct access across U.S. 1 for people going northbound; and they have to go about four-tenths of a mile and back to enter the property.

Shirley Mitten advised of her personal life and her opposition to Dogs R Us as a family restaurant; and stated it should be like Ryan's Steakhouse or Quincy's which do not offer alcoholic drinks. She stated she contacts a lot of teens and see the peer pressure; Port St. John does not need that kind of establishment; and the location could be better used for a real family restaurant.

John Mitten, Pastor of Victory Baptist Church, stated none of the Commissioners live in Port St. John; it is a wonderful family community; The Happenings paper said there were 34 people objecting, but there were more objecting than for it; and they represented the community well. He stated he objects to the beer and wine license; if there is a traffic death, it does not matter if Miller Lite beers or Cutty Sark drinks were involved; when there is domestic violence, it does not matter if it is gin or Bud beers involved; alcohol causes people to do bad things; and within the rank of teens, the alcohol they begin with is usually beer and wine. He stated he objects to the establishment; he does not mind eating hot dogs, but it is the establishment and the direction it has gone in the past. He stated the last time he was before the Board he mentioned the establishments in Melbourne and Titusville and their police reports; and he objects to the idea it is presented as a family restaurant, because it is a Trojan horse. Pastor Mitten advised someone said there was no fighting in the restaurant; and read portions of Police Report 98-13391 as follows: "They observed two white males beating a third white male; the beating continued until the third white male fell to the ground in the parking lot of Dogs R Us; the two white males continued to kick the subject to the ground several times. Jodie Glass stated she believed the two white males were laughing when they were kicking the subject. The two then entered into a newer black vehicle and then onto Washington Avenue." He stated another incident occurred in the parking lot of Dogs R Us; and read the following: "Several witnesses told the writer as well as Sgt. Allen that Carl had been punching his wife Karen Walsh, dragging her by the hair through the parking lot prior to our arrival. Karen Walsh advised her husband Carl had punched her in the chest, slammed her head against the van side mirror, ripped her hair from her head during the argument she was having with him in the parking lot." Pastor Mitten stated another report was about a party, and stated: "One of the females was identified as Humphrey who is also a white waitress. Humphrey said she went to high school with Gord and said she was the only member at the party under the age of 21. She was inside the restaurant drinking, and she was the only one underage there." He presented the reports to the Board; and requested the Board keep Port St. John a family community.

Dr. Rick Chandler stated he is against this establishment in their community; and would like to address police calls and not the consumption of alcohol since he was accused of being against alcohol. He stated all the other establishments in Port St. John that serve alcohol in a family restaurant environment do not have the type of police calls Dogs R Us have had in all their locations. He stated it was reported there were only 40 calls, but he counted 120 on the list he has; and when drive-bys, EMS calls, Fred Flintstone, anything in the parking lots, property reports, and traffic pullovers are removed, there are still public disturbances, bar tabs not being paid, domestic violence, assault and battery, and one prostitution. He stated that type of establishment will not benefit the majority of the people in Port St. John.

Maureen Rupe, representing Port St. John Homeowners Association, advised the Association voted that a binding site agreement be put on the property to close off the easement and not allow a sports bar.

Chairman Scarborough inquired if Ms. Smith addressed the Homeowners Association; with Ms. Rupe responding no. Chairman Scarborough advised of four cards from Wreva Heatherly, Loretta Gildersleeve, Louise Guilford, and John Yates who did not want to speak but are opposed to the request.

Attorney Pickles advised as to comments of not wanting an establishment such as this in the community, the point is there are several such establishments already in the Port St. John community that goes to their argument of compatibility. He stated as to Ms. Smith's concerns, they addressed some of them; they agreed that 80% of their revenues would be food versus alcohol, therefore 51% is not a problem; and the restaurant is required to submit a beverage surcharge to the State, so that can be checked. He stated if there is dispute whether the permitted premises is being operated as a restaurant is no problem; there will be no hard liquor; entrance and exit off U.S. 1 is the only one they can have other than the easement they agreed to do away with; if the people want another access, they would need the easement; and it is a DOT issue whether it is a proper access to the premises. He stated a median opening is also a DOT issue; and if DOT says it is okay and traffic experts say it will not significantly reduce or hinder traffic, they have to go with that. He advised the hours of operation were addressed; 11:00 p.m. is the latest it will be in operation; and that is on Friday and Saturday nights.

Chairman Scarborough inquired if staff has anything in writing on the restrictions; with Mr. Enos responding not specifically, but the Board can establish restrictions as part of the CUP. Mr. Knox advised if the Board decides it wants to approve it, it can approve it with certain conditions laid on the record; and staff will draft an order for the Board to consider. Chairman Scarborough stated since it is in bits and pieces, perhaps he, Mr. Knox, and Mr. Enos could put it together in his office because they do not have a document.

Mr. Pickles stated the application before the Board does not have conditions; if the Board is going to approve it with certain conditions, and they are agreeable to the conditions, it would be sufficient to read them into the record. Chairman Scarborough stated it will take a long time.

Commissioner O'Brien stated it has to be a public forum to discuss the application. Chairman Scarborough stated it would come back to the public forum; and the hours of operation will be part of it, with closing at 9:00 p.m. on weekdays and 11:00 p.m. on Fridays and Saturdays. Commissioner Higgs stated the critical issue for the people is alcohol; and the applicant agreed to 80% food revenues. Mr. Pickles stated the statutory requirement or definition of a family restaurant may be 51%, but they anticipate 80/20. Commissioner Voltz inquired if the applicant would agree to 70/30; with Mr. Pickles responding affirmatively. Chairman Scarborough stated he will reopen the public hearing to allow people to comment on the issues the Board may vote on. Commissioner Higgs stated no hard liquor, access from U.S. 1 only, and the easement to Haverhill not being used and being blocked permanently were agreed to by the applicant; with Mr. Pickles responding that is correct.

Mr. Pickles advised they would agree to a wall over the easement as opposed to a perimeter wall. Chairman Scarborough inquired if it would completely block access to Harverhill; with Mr. Enos responding Mr. Pickles may be referring to just the area where his client's property line abuts the easement. Mr. Pickles stated that is correct; the property does not go to Haverhill, but the easement runs all the way to it. Chairman Scarborough inquired if it would prevent people from going to Haverhill from their parking lot; with Mr. Enos responding yes.

Commissioner Voltz advised sometimes a wall does not look as good as shrubbery; and the Code requires a wall, but some residents may not want a wall. Commissioner Higgs indicated the applicant agreed to a six-foot masonry wall. Mr. Pickles requested a privacy fence or bollards as opposed to a masonry wall.

Rochelle Lawandales, representing the applicant, advised the owner asked whether or not bollards would be sufficient; bollards are about two-foot concrete structures that are placed half a foot or a foot apart where no vehicles can get through even though they are not connected. She stated they would be placed within the area of the 20-foot easement. Commissioner Voltz inquired if they would put shrubbery around the bollards; with Ms. Lawandales responding they will meet the County's landscape requirements around the perimeter as well as the parking area. Chairman Scarborough stated he wants to isolate the single-family residences from the commercial establishment. Mr. Pickles stated they are not talking about the entire length of the easement; they are talking about landscaping around the perimeter of the property and where the bollards will be located. Chairman Scarborough stated the question is around the bollards; with Mr. Pickles responding they can cover and conceal them. Commissioner Voltz suggested an opaque buffer; with Mr. Pickles responding okay. Chairman Scarborough inquired how high would the bollards landscaping be; with Ms. Lawandales responding whatever the requirement is, which she thinks is two feet at planting. Commissioner Higgs stated there are no requirements to landscape around the bollards. Ms. Lawandales stated bollards are usually two feet high, so the landscaping can be at least two feet at the time of planting and be viburnum or another type of species that would grow upwards four to six feet.

Commissioner Carlson stated the picture in the packet shows the existing easement; it appears the way the lot is designed that a garbage receptacle is in the back corner; and inquired if the issue is cutting around that and using the easement; with Mr. Pickles responding initially the plan was to place a garbage receptacle there to block the access; they moved it to where it needs to be; but the reason it was on the site plan was to say they would not use the easement.

Discussion ensued on the locations of the easement, Haverhill Road, and U.S. 1, use of the easement by McDonald's, the bank, and the adjacent property, location of a drainage easement, property owned by the County, and retention pond.

Commissioner Higgs advised she met with Kathryn Smith, Mr. Smith, and Ms. Heatherly who stated their objections; she provided them a copy of the traffic study and explained that the Board needs substantial and competent evidence on record to make decisions; it must make decisions in that realm; and she could not tell them her position on the issue.

Maureen Rupe stated she would prefer a wall, and thinks that would please the residents more than the bollards. She stated when she brought the issue up in November, Dick Thompson did a study and sent it to the County Manager's Office, but it was never addressed since; it was a problem before Dogs R Us came up; the road leads to McDonald's and Auto Zone; there are no residences around that part; so the wall would not be detrimental to the scenery.

Commissioner Voltz inquired if it would look odd having a 20-foot wall on the easement; with Chairman Scarborough responding he does not know.

Kathryn Smith stated they would like to have a wall to keep traffic from behind the bank coming out from Dogs R Us to Haverhill; there is a dirt road behind the bank off Haverhill that people can use to go into the parking lot of the restaurant; and they want a wall to stop that traffic.

The Board perused a map or proposed site plan to determine the location of the easement, garbage receptacle, and wall. Mr. Enos suggested the Board require the wall where the property abuts the access easement instead of specific requirements of how long or how wide.

Chairman Scarborough stated what he heard from the comments was to completely restrict anyone from leaving the parking lot and going down the easement; there are a lot of people who will do strange things if it can be used as a short cut; so rather than describe everything with a great deal of particularity, the Board should say a complete restriction of any access to the easement to Haverhill by a wall, bollards, or whatever. Mr. Pickles stated he has a survey that may be clearer.

Commissioner Carlson stated if the Landscape Ordinance is applied to the lot, they will have a natural buffer that goes around the property with shrubs that she doubts cars will go through; and if the wall could go behind the garbage receptacle, they would not have to rearrange their plan. Chairman Scarborough stated sometimes people run down landscaping.

Dr. Chandler of the First Baptist Church, stated if he just walked into this meeting, it would appear to him that the vote has already been taken and what the Board is doing now is a landscaping plan; he has questions he would like to present the perspective winners of this application; and that is, what assurance do they have that the same owners in this same County have taken such a conversion and a drastic change in the ambience and demeanor of their business establishment. He stated it would be prudent for the Board to take an individual look at the police reports; they are not trumped up, or made up, or bogus; he is not against a hot dog place or new business in Port St. John and wants to see it grow; and inquired why all of a sudden have the owners made a drastic change in their philosophy, and what are they going to do differently in Port St. John that is not going to allow the same things that have happened in the other establishments. He inquired if by saying that they will serve beer and wine and not hard liquor is going to curb all the activity that has gone on; and stated he is not sure that it is even beer and wine that is causing a lot of the activity; there is an influence; and there is an encouragement if for no other reason than what is going on in the parking lots and in the building. Dr. Chandler stated he represents several hundred families in Port St. John; and requested them not to come to the meeting because he would represent them; none of those people who are talking about coming into Port St. John live there; and urged the Board to listen to the people who live there. He stated he is not against any personality or business establishment; and what he is addressing is the history.

Chairman Scarborough inquired if the Board can deny an application because of a prior police history; with Mr. Knox responding if the Board had a history of incidents at a similar establishment, it probably could if it was repetitive and not an isolated incident; but it would be tough to convince a court that it is a sufficient basis to turn down a new establishment. Chairman Scarborough inquired what would the County Attorney have to prove; with Mr. Knox responding the County would have to show a connection between what is going on in the police reports and the business itself and that it is constantly becoming a nuisance; and it has to be able to show the likelihood of that happening again in the Port St. John location. Commissioner Higgs inquired how could that be shown; with Mr. Knox responding he does not know, but that is what the County would have to show; and it could probably do that based on the history of incidents, but there may or may not be connections to the business.

Commissioner Higgs inquired if she had a criminal record and applied for a similar thing, could the Board use that to deny the CUP; with Mr. Knox responding she would not qualify for an alcoholic beverage license.

Mr. Knox stated the Board would have to show that there is some sort of a nuisance almost created because of the type of business it is; that would have to be tied down by police reports that relate directly to what is going on in that business; then it would have to show that the same kind of business will go into Port St. John.

Commissioner Voltz advised if the Board denied the application, is taken to court, and loses, the applicant does not have to abide by any restrictions the Board would place on the permit; but if it approves the permit now, the restrictions will apply. She stated in order to turn it down, the Board must have competent and substantial evidence.

Chairman Scarborough stated the Board asked for a traffic report and it came back that there is nothing in traffic that would give a basis for denial; and inquired what would the Board need to have if it wanted to deny the request, taking into consideration they are consenting to the restrictions on food and alcohol sales, etc.; with Mr. Knox responding he is not certain the Board has enough in the police reports to turn down the application. Chairman Scarborough inquired if additional analysis of the police reports could give a basis for denial; with Mr. Knox responding the Board could talk to some of the officers who did the reports to see if they were tied to the business; and it would take more analysis of the type of business being conducted in Titusville and percentage of food sales versus alcohol sales. He noted if it is a sports bar and the proposed establishment is going to be a restaurant, that is a different situation.

Commissioner Carlson inquired if the Titusville Dogs R Us has a CUP for alcohol; with Chairman Scarborough responding it is located in the City. Commissioner Carlson stated if there are violations of the CUP, could the County use it as an item of record to support a denial; with Mr. Knox responding if the owners have violated their CUP, they would not be in business; but if there is a history of not abiding by the conditions of the CUP that could give grounds; however, he has not heard anything like that yet.

Chairman Scarborough stated police reports were presented at prior meetings and some tonight; and the applicant has refuted some of the reports. Commissioner Carlson stated she was referring to code violations of a municipal permit; and inquired if staff talked to Melbourne or Titusville about it. Chairman Scarborough stated a code violation would be against the property; a police report is about possible criminal activity of persons who may not even be involved with the property; and Mr. Knox said the operation of the property has to create a high propensity of criminal activity by people who are not associated with the property. Mr. Knox stated the County would have to link criminal activity to the business. Commissioner Carlson stated all she is talking about is a violation on the owner's part of a CUP like selling to minors. Mr. Knox stated if conditions set out in the approvals made by Titusville and Melbourne are violated, he has not heard evidence of that; but that may be something the Board may want to look into. Chairman Scarborough stated the allegation is people removed from the restaurant are coming in there and causing problems and getting into fights. Commissioner Higgs stated that is not the only allegation. Chairman Scarborough stated that is what was basically said.

Commissioner Voltz inquired what is the percentage of alcohol and food revenues at the other Dogs R Us; with Mr. Pickles responding at least 51% and in Titusville it is 75%, but they have been in Melbourne only since 1993. Chairman Scarborough stated there were police reports at the Titusville restaurant with 75/25; the Board is considering 70/30 for Port St. John which is more lenient; yet the problems exist in Titusville where it is more restrictive. He instructed the County Attorney to guide the Board so it does not waste any more time, because the item keeps coming back. Mr. Knox stated if there is a real concern about the police reports, the Board needs to take a closer look at what they actually mean; there are two conflicting versions of what the reports mean; so maybe the Board needs to get an objective analysis.

Motion by Commissioner Higgs, seconded by Commissioner Voltz, to table Item 2 (PSJ90501) to September 2, 1999, and direct staff to gather information from Titusville Police Department and prepare a report for the Board to have a more objective report of the issues. Motion carried and ordered unanimously.

Commissioner Higgs inquired about the Chairman talking with the parties; with Chairman Scarborough responding some of the issues may be digested easier in an office as opposed to taking everybody's time at the meeting; he does not mind meeting with everybody, but before that meeting he would need to get the report and share it with all parties; and recommended copies of the staff report be sent to everybody.

Commissioner Voltz inquired how far back does the Board want to go with the report. Mr. Pickles stated the subject property is in Port St. John; and it may be the same owner, but the incidents discussed were about Melbourne. Chairman Scarborough stated they need to get the reports from Melbourne and Titusville, let Mr. Pickles and the community look at it to determine if they are regular things that would occur in any other place in Titusville or if they are anomalies. He stated the Board needs to review the reports and get more information to find out the particulars; and he does not know any other way to do it. Dr. Chandler stated in order to have the statistics not skewed and totally objective in making the survey, the Board needs to compare the statistics to other like establishments. Chairman Scarborough stated that would probably be relevant, as the incidents they have may be less than incidents of another establishment. Mr. Knox stated those are all things that need to be looked at. Dr. Chandler inquired how soon will the public have an opportunity to look at the survey before it comes back to the Board; with Chairman Scarborough responding as soon as the Commissioners get it, staff will get copies to all parties. He suggested Dr. Chandler call Mr. Enos and tell him he would like to have a copy of the report.

The meeting recessed at 7:00 p.m., and reconvened at 7:17 p.m.

PUBLIC HEARING, RE: PLANNING AND ZONING RECOMMENDATIONS OF JULY 6, 1999 AND SPECIAL HEARING OF JULY 19, 1999

Chairman Scarborough called for the public hearing to consider recommendations made by the Planning and Zoning (P&Z) Board on July 6, 1999 and July 19, 1999, as follows:

Item 1. (Z9907101) 4 G's of Brevard County's request for change from GU to RRMH-1 on 1 acre located on the southwest corner of Soggy Bottom Avenue and Moonlight Drive, which was recommended for approval by the P&Z Board.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to approve Item 1 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 2. (Z9907102) Dennis Tetreault's request for change from GU to ARR on 2 acres located on the north side of Bear Trail, east of Satellite Boulevard, which was recommended for approval by the P&Z Board.

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

Item 3. (Z9907104) Byron F. Shafer and Paul Raymond Shafer, II's request for change from AU to BU-1 on 0.5 acre located on the west side of U.S. 1, north of Glenn Road, which was recommended for approval by the P&Z Board.

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

Item 4. (Z9907105) Brevard County Board of County Commissioners' request for change from RU-1-9 with BCP to GML-I; and GML with CUP for solid waste and disposal areas to GML-H, retaining the CUP on 3.78 acres located on the west side of Adamson Road, north of SR 524, which was recommended for approval by the P&Z Board.

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

Item 5. (Z9907106) George Alan Harrell's request for CUP for alcoholic beverages on-premise consumption in BU-2 zoning classification with Specific Use for Outside Service Restaurant and all BU-1 uses on 1.33? acres located on the east side of Grissom Parkway, south of Canaveral Groves Boulevard, which was recommended for approval by the P&Z Board.

Larry Harrell advised he will have the closest business and residence to the restaurant; he does a lot of work in the groves; and everybody he has talked to are looking forward to it and hoping for approval of the conditional use permit.

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

Item 6. (Z9907107) Kevin E. and Sherry O. Scauzillo's request for change from RR-1 to AGR on 12 acres located at the southern terminus of Sorrell Drive, east of Adamson Road and abutting the west side of I-95, which was recommended for approval by the P&Z Board.

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

Item 7. (Z9907201) Removed and placed on North Merritt Island Advisory Board Agenda.

Item 8. (Z9907202) Removed and placed on North Merritt Island Advisory Board Agenda.

Item 9. (Z9907203) Sigurd R. Reeves' request for CUP for single-family residential second kitchen facility in RU-1-13 zoning classification on 0.17 acre located on the east side of South Orlando Avenue, north of 12th Street, which was recommended for approval by the P&Z Board.

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

Item 10. (Z9907204) Carmine W. Farina and Lois A. Farina's request for change from RU-2-15 to BU-1 on 0.29 acre located on the southwest corner of Highway A1A and Crescent Beach Drive, which was recommended for approval as BU-1-A by the P&Z Board.

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

Item 11. (Z9907205) James E. and Janet L. Harrison's request for change from AU to RR-1 on 3.27 acres located on the north side of North Tropical Trail, west of SR 3, which was recommended for approval by the P&Z Board.

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

Item 12. (Z9907206) Removed and placed on North Merritt Island Advisory Board Agenda.

Item 13. (Z9907207) Joseph T. and Patricia A. McDaniels' request for change from RU-1-13 to RU-2-12 on 0.17 acre located on the east side of South Orlando Avenue, north of 14th Street, which was recommended for approval by the P&Z Board.

Dorothy Lamy advised she owns a home on South Orlando Avenue across the street from the subject property; the first card she received said they wanted to amend the lot size because it was not the standard size for the building permit; however, the second card said they wanted to change the zoning from single-family to multifamily; and she is opposed to it. She stated Orlando Avenue is a two-lane highway and very busy; they have two cars and have problems getting on A1A; and a multifamily building with six or 12 units would increase the traffic. Mr. Enos stated the application is for a two-unit building. Ms. Lamy stated she still objects to it because the traffic is very intense in that area.

Rodney Hall advised he is against the rezoning to multifamily because it would change the environment of the neighborhood which is single-family residential. He stated there are a few multifamily developments along A1A, but he would like to see the area remain single-family. He agreed with Ms. Lamy's statements; and noted there are more multifamily dwellings in the area than what was intended.

Commissioner O'Brien advised on the block where the property is situated are nine lots; Mr. McDaniels owns Lot 7; the block has three duplexes, one triplex, and a quadruplex on Lot 8 just south of his lot; and he wants to rezone his lot like everybody else and have two units. He stated the P&Z Board heard the evidence and voted unanimously to recommend approval, so he will move to approve it. He stated Mr. McDaniels' property is the last remaining parcel; and there are all duplexes, triplexes, and a quadruplex on that block.

Motion by Commissioner O'Brien, to approve Item 13 as recommended by the P&Z Board.

Ms. Lamy stated there are multifamily on the east side of A1A in the County, but the west side is in Cocoa Beach and there are no multifamily on that side. She stated the homes are old, but they are remodeling them and the area is coming up.

Joe McDaniels, owner of the property, stated most of the parcels on the east side are in the County and quite a few are zoned multifamily; to the south of his lot is a fourplex; and a single-family home would not be conducive. He stated he applied for the minimum zoning; it is for family use; he was trying to follow the majority of developments in that area; and traffic is intense in the evening, but it is a State Road and not a back road.

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

Item 14. (Z9907208) Removed and placed on North Merritt Island Advisory Board Agenda.

Item 15. (Z9907301) Carolyn S. Hildenbrand's request for change from GU to RR-1 on 1.60? acres located on the north side of Sandpoint Road, west of Main Street, which was recommended for approval by the P&Z Board.

Carolyn Hildenbrand advised she wants to divide the property and leave five acres AU and build on the other 1.6 acres, as they are not able to maintain the property.

Commissioner Higgs advised the property is on the north side of Sandpoint Road; Item 16 is also a request on the same street; and the decision the Board makes on this one will set a precedent and affect how the area goes. She stated the character of the area is predominantly agricultural; and she will support AU if the applicant wants to divide it so there is sufficient size to meet the AU classification. Ms. Hildenbrand stated others have done it; and she was told she could not have AU. Commissioner Higgs stated if Ms. Hildenbrand divided the parcel into 2.5 acres she could have AU. Ms. Hildenbrand stated she cannot keep up 2.5 acres and would have to think about it.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to table Item 15 until September 2, 1999. Motion carried and ordered unanimously.

Item 16. (Z9907302) Carolyn L. Workman's request for change from GU to RR-1 on 5? acres located on the north side of Sandpoint Road, west of Main Street, which was recommended for approval by the P&Z Board.

Carolyn Workman advised she wants to divided her five acres. Commissioner Higgs suggested dividing it into two AU lots. Ms. Workman inquired if it would allow two homes; with Commissioner Higgs responding yes and would be consistent with AU. Mr. Enos stated AU requires 2.5 acres and she would need five acres; the applicant stated the acreage was 5 plus or minus acres; the zoning map shows the parcel being 4.74 acres. Chairman Scarborough stated if one lot is less than 2.5 acres, it would put her in a box as far as developing it. Ms. Workman stated she has surveys that show one parcel would be 2.5 and the other would be 2.53 acres.

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

Item 17. (Z9907303) Ronald Senne, Inc.'s request for CUP for alcoholic beverages on-premise consumption in BU-1 zoning classification on 1.00? acre located on the west side of U.S. 1, south of First Street, which was recommended for approval by the P&Z Board.

Ronald Ferraro advised the request is for a seafood restaurant.

Commissioner Higgs recommended approval under the same conditions the Board discussed with Dogs R Us, with 51% of the revenues being from food; with Mr. Ferraro responding it will be a family-type restaurant with 30 seats and no bar. Commissioner Higgs inquired if Mr. Ferraro is willing to let the County review his receipts if there was a question; with Mr. Ferraro responding certainly, he agrees with everything.

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to approve Item 17 as recommended by the P&Z Board, with conditions that the premises shall be operated as a family restaurant; for the purpose of this conditional use permit, a family restaurant is defined as an eating establishment in which at least 51% of the gross revenues is derived from the sale of food and nonalcoholic beverages; and in the event any dispute arises as to whether the permitted premises is being operated primarily as a family restaurant, the permittee shall allow County representatives to inspect his records of gross receipts and sales tax returns to determine whether the criteria set forth above has been complied with. Motion carried and ordered unanimously.

Item 18. (Z9907304) Guy E. and Doris M. Boroff's request for change from GU to RR-1 and GU to AU on 9.95 acres located on the south side of Grant Road, east of Pine Sap Avenue, which was recommended for approval by the P&Z Board.

Guy Boroff advised he owns close to ten acres; a contractor wants to buy his property to build two or three homes on the front for their personal use and to have horses on the back five acres; so he requested RR-1 on the front portion and AU on the back. He stated bordering the property on one side is RR-1.

Commissioner Higgs stated there is RR-1 on one side and AU on the other three sides; AU would allow subdividing the property into 2.5-acre lots and be consistent with the surrounding area; and he could use it for three home sides and horses as he explained.

Mr. Boroff stated the problem is the size of the property; it is not quite ten acres and the back has to be five acres in order to have an easement through a flag lot, because the Code says it has to be five acres or more; so they would not have two 2.5-acre lots on the front. He stated Grant Road takes up part of the property and would take up some of the 4.9 acres on the front.

Commissioner Higgs stated she will support AU on the entire parcel to be consistent with the lands around it or table it and work with Mr. Enos and the applicant to see how it can be resolved. Mr. Boroff stated it would be fine with him if he can have the five acres in the back. Mr. Enos stated he could have one frontage lot on the north side and two independent flag lot accesses side by side. Mr. Boroff inquired why Commissioner Higgs is against the rezoning where there are all one-acre parcels to the west of his property; with Commissioner Higgs responding to the west is AU, to the east is RR-1 and to the north are large AU parcels. Mr. Boroff inquired how big does a parcel have to be for AU; with Commissioner Higgs responding 2.5 acres. Mr. Boroff stated if that is the best the Board can do, he will have to take AU but wanted RR-1. Commissioner Higgs inquired if Mr. Boroff wants to meet with her and Mr. Enos; with Mr. Boroff responding he would take the AU.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve Item 18 as all AU on the entire parcel. Motion carried and ordered unanimously.

Item 19. G & F Equipment Rental, Inc.'s request for change from AU and BU-1 to RU-2-4 and CUP for independent living facility on 5.3? acres located on both sides of U.S. 1 north of Barefoot Bay Boulevard, which was recommended for approval by the P&Z Board for 104 units contingent upon the Mixed Use District (MUD) boundary expansion to be considered by the LPA; and the LPA recommended approval of the MUD expansion.

Commissioner Higgs advised the item was discussed at length in the community and by the Board; and if there are no questions, she is ready to approve the item.

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

Item 20. Vincent P. and Maria Taranto's request for change from TU-1(20) and RU-2-8 to TR-3 on 2? acres located on the west side of A1A, north of Hall Landing Road, which was recommended for approval by the P&Z Board.

Commissioners Higgs, Voltz and Scarborough advised they met with Mr. Taranto.

Commissioner Higgs stated this is a difficult situation; Mr. Taranto runs a nice park; all the land surrounding the parcels are mobile home parks; but what concerns her is the Comprehensive Plan Coastal Management Element Policy 8.9 which states, "Based upon hurricane vulnerability concerns and excessive evacuation times, new mobile home or recreation vehicle development shall not be permitted on the Barrier Island to the extent permitted by law."

Chairman Scarborough inquired if "new" means totally new or continuation of a pre-existing use; with Commissioner Higgs responding she does not know, but new to her means something other than what is there; and in this case it makes sense to have mobile home use. Chairman Scarborough stated "new" means totally new as opposed to this application. Commissioner Higgs stated it is new because there has not been a mobile home development on this property, unless Mr. Taranto can prove otherwise. She stated the good thing about his development is that the mobile homes are not hurricane vulnerable and he has reduced the number of trips, but neither of those parcels were a part of the mobile home development.

Mr. Taranto advised the parcel to the south had recreational vehicles; it is empty at this time; but the only use since 1969 has been for RV's. Chairman Scarborough requested an opinion from the County Attorney's Office.

Assistant County Attorney Eden Bentley advised she talked to a few people but not the applicant; and this is a situation that would depend on the facts of whether or not it had been used for a mobile home park in the past, what his plans had been, and if there are drawings to make a case that it was part of the pre-existing plan. She stated various Comprehensive Plan policies may apply; and reduced number of trips, hurricane evacuation, and overall density being reduced by the proposal versus the requirement of no new mobile home or recreational vehicle parks on the Barrier Island poses a conflict for the Board.

Commissioner Higgs advised the Coastal Management Element will come back from Department of Community Affairs for Board consideration on October 10, 1999; if the Board feels the area would qualify for mobile homes, it could consider an amendment to the language if it is drafted tight enough; but what she does not want to see is other mobile home parks on the Barrier Island that could potentially expand. She stated she does not have a problem with Mr. Taranto using those parcels because of their location and existence of the mobile home park; but she has a problem because she thinks it is new. Chairman Scarborough stated he can read it and defend it both ways. Commissioner Voltz stated what he is tearing down is an eyesore. Chairman Scarborough inquired if the Board gives the more liberal interpretation, would it open the door for others; with Commissioner Higgs responding it should be clearly defined.

Commissioner Carlson advised she met with Mr. Taranto and brought up the concerns about the language as well, but she also likes the overall picture he painted in building facilities there. She stated she brought up the idea of hurricane resistant shelter; and if the Board wants to look at the language in October perhaps it can somehow utilize building a shelter to the advantage of others that are existing there as well. Commissioner Higgs stated the shelter is a wonderful idea in a tornado, but not in a hurricane because the Board would not recommend anybody staying on the Barrier Island.

Chairman Scarborough inquired what time critical is the project; with Mr. Taranto responding he would like to move forward; and he could add other evidence about the property. He stated the parcel was purchased in 1969 as one parcel except the little parcel to the south; and it has been one parcel since 1969. Commissioner Higgs inquired if there were cabins on the front when he purchased the property in 1969; with Mr. Taranto responding yes. He stated the original drawing for the Park shows the proposed entrance and exit roads that were administratively rezoned to TR-3; and it sandwiched in the little parcel to the north. Chairman Scarborough inquired if there is enough finding of fact as part of the record, and if the issue came up again, could the Board insulate itself by the facts that it was purchased at the same time, it was to operate as one development conceptually, it has been under the same ownership since 1969, etc. Commissioner Higgs stated it was RU-2-6 on the front. Mr. Taranto stated it was TU-1 with 20 units per acre; about 60 to 70% was rezoned TR-3 in May, 1999; and at the same time they rezoned the future roads that were part of the plan. He stated the Comprehensive Plan was written when that language was appropriate; and the vulnerability and traffic issues were resolved. Chairman Scarborough stated the Board is not concerned about Mr. Taranto's operation; the problem is how to deal with "new"; if it deals with it conservatively, it will not have someone misuse the action; but if it gives a liberal interpretation, what could occur in the future becomes a concern.

Commissioner Higgs stated it would be difficult to expand any of the mobile home parks on the Barrier Island, but there are mobile home parks in other Commission Districts and vacant property around other trailer parks that may be affected.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to table Item 20 until October 12, 1999, and authorize Commissioner Higgs to work with staff and Mr. Taranto to resolve the issues. Motion carried and ordered unanimously.

Item 21. (Z9907401) Cape Canaveral Commercial Corporation's request for change from AU to BU-2 on 16.49? acres located on the southeast corner of the intersection of SR 524 and SR 520, which was recommended for approval by the P&Z Board.

Gerald Laschober presented a handout to the Board, and explained it; gave a description of the location of the property west of I-95 and surrounding uses; and requested approval.

Chairman Scarborough inquired if the proposed uses are gas station, restaurant and mini-warehouse; with Mr. Laschober responding he has equipment and a trailer and no place to park them, and no place to store concrete forms; and described the proposed development of the property with a fountain, coquina wall, and long deceleration and acceleration lanes. He stated the east acreage has lots of trees which he would like to preserve so it will be an aesthetically pleasing site.

Harry Perrette advised he lives directly across the street from the property; in 1985 he opened a business and asked for BU-2 zoning and was told it was for a house in that area and was denied; behind his house are wetlands that are really nice; and all kinds of animals are back there. He stated he does not see why it should be changed.

Commissioner Carlson expressed concern about BU-2 because the character of the area has not been established, read from Policy 4.7, and described the zoning in the area. She stated the character of the area could be defined by the BU-2 zoning, and requested comments from the Board.

Chairman Scarborough advised SR 520 is four-laned; and sooner or later it will be zoned commercial, but whether that time is now, he is not sure. Commissioner O'Brien stated if Oleander power plant is built, SR 524 will have to be four-laned.

Commissioner Carlson stated she can support BU-1, but does not feel comfortable with BU-2. She stated a warehouse is not allowed under BU-1. Mr. Enos advised it would require BU-2, but the other uses can occur in BU-1. Commissioner Carlson stated the Policy says BU-2 should not be located on a collector street where the character has not been defined. She noted the plan sounds nice, but she is concerned about the storage. Chairman Scarborough stated the County is going to four lane and landscape SR 520, and how it looks is important to that area; and perhaps the Board could review the development plan to make sure it is not visible which would accomplish his purpose and ease the concerns of Commissioner Carlson. Commissioner Carlson suggested the item be tabled to discuss a binding development agreement.

Mr. Laschober stated the item is time critical because of the contract and payment for it; and requested the binding development plan apply to the easternmost area. He stated BU-1 will be okay for the restaurant and gas station.

Discussion ensued on trailers, BU-1 and BU-2 requirements, noise, odor, traffic, entrance to the City of Cocoa, uses, acreage required, invisible to major intersection, financing, and need to close on the property by September 21, 1999.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to table Item 21 until August 24, 1999 to discuss a binding development plan. Motion carried and ordered unanimously.

*Commissioner Voltz's absence was noted at this time.

Item 22 (Z9907402) Golden Triangle Realty, Inc.'s request for change from PUD to PUD with amendment to PDP on 5.454? acres located on the southwest corner of St. Andrews Boulevard and Pineda Court, which was recommended for approval by the P&Z Board with the conditions referenced in staff comments, as agreed to by the applicant.

Motion by Commissioner Carlson, seconded by Commissioner O'Brien, to approve Item 22 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 23. (Z9907403) We're Cookin', Inc.'s request for change from RU-1-13 to BU-1 on 2.3 acres located on the east side of U.S. 1, immediately north of the eastern terminus of Dearborn Avenue, which was recommended for approval by the P&Z Board. Motion by Commissioner Carlson, seconded by Commissioner O'Brien, to approve Item 23 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Commissioner Voltz's presence was noted at this time.

Item 24. (Z9907404) Donald L. and Susan M. Plymel's request for change from AU and BU-1 to all BU-1 on 2.6? acres located on the southeast corner of U.S. 1 and Coquina Road, which was recommended for approval by the P&Z Board with a binding development plan, and excluding the easterly 75 feet of the request as offered by the applicant.

Rochelle Lawandales advised of the location of the property and surrounding uses; noted the parcel does not conform to the AU size requirement; and stated the applicant requests all but 75 feet of the AU be rezoned as BU-1. She stated they submitted a binding development plan to the County Attorney and staff; and they offered the 75 feet to the County as a conservation easement and part of the linear park and greenway program.

Chairman Scarborough inquired if there were any questions; with Attorney Richard Amari responding as long as it is approved with the binding development plan he has no objections.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to approve Item 24 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 25. (Z9907405) Holy Trinity Episcopal Academy, Inc.'s request for change from BU-2 with BSP to BU-2 with removal of the BSP on 12.61? acres located east of Wickham Road, and south of Pineda Causeway, which was recommended for approval by the P&Z Board.

Mr. Enos advised the binding site plan (BSP) was done to provide additional buffer for the multifamily west of the property; it is not zoned multifamily now and is zoned BU-1; so the value of the BSP is obsolete.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to approve Item 25 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 26. (Z9907501) Removed from the Agenda.

Item 27. (Z9907502) Elizabeth P. Venegas' request for change from RU-1-9 to BU-1 on 0.13 acre located on the east side of Croton Road, south of Aurora Road, which was recommended for approval by the P&Z Board.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to approve Item 27 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 28. (Z9907503) Michael E. Adams and Mary E. Netzler's request for change from GU to AU on 12.34 acres located on the north side of Willowbrook Street, west of Babcock St, which was recommended for approval by the P&Z Board.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to approve Item 28 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 29. (Z9907504) John S. Patt, Walter E. Platt, Vicki Curry, and Cecil J. Anastasio, as Trustee for the Betty June Anastasio Trust's request for change from AU to BU-1 on 2.89 acres located on the west side of Columbia Lane, north of U.S. 192, which was tabled by the P&Z Board to September 2, 1999 Board of County Commissioners meeting for readvertisement and addition of MUD boundary expansion.

Motion by Commissioner Higgs, seconded by Commissioner Voltz, to table Item 29 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 30. (Z9907505) T. A. Altman (Sr.) and Roberta M. Altman's request for change from GU and RU-1-7 to BU-1 on 7 acres located on the east side of Wickham Road, north of Eau Gallie Boulevard, which was tabled by the P&Z Board to September 2, 1999 Board of County Commissioners meeting to give the applicant time to submit a proposed site plan.

Motion by Commissioner Higgs, seconded by Commissioner Voltz, to table Item 30 as recommended by the P&Z Board. Motion carried and ordered unanimously.

The meeting recessed at 8:33 p.m., and reconvened at 8:48 p.m.

Item heard by the P&Z/LPA on July 19, 1999 in Special Hearing

Item 32. (Z9907SH1) Louis Richard Mazzaferro, Louis Joseph Mazzaferro, and Sorgini and Sorgini, P.A.'s request for expansion of Mixed Use District (MUD) boundary, and change from AU to BU-1 on the southerly 550 feet, and RU-2-10 on the remainder of 4.29 acres located on the north side of U.S. 192, west of Wickham Road, which was recommended for approval by the LPA and the P&Z Board.

Mr. Enos advised the Board waived the waiting period based on a different application; and the applicant also asked to waive the fees, but the Board put that off until this meeting.

Commissioner Voltz advised at the meeting where she denied the application, she should have tabled it to work out the details; it was her fault that they had to reapply; so she will move to waive the fees.

Motion by Commissioner Voltz, seconded by Commissioner O'Brien, to waive the fees for Louis R. Mazzaferro, Louis J. Mazzaferro, and Sorgini & Sorgini, P.A. to reapply for rezoning. Motion carried and ordered unanimously.

Motion by Commissioner Voltz, to approve Item 32 as recommended by the LPA and P&Z Board.

Commissioner Higgs stated the MUD boundary goes back too far. Chairman Scarborough stated if the Board is going to discuss the item, he will return to Item 31 first.

Item tabled from P&Z May 3, 1999 and BCC May 20, 1999 Meetings

Item 31. (Z9905101) Brian and Heather Calligan's request for Mixed Use District (MUD) boundary expansion and change from GU to RVP with BDP on 117.23 acres located on the south side of SR 46, east of Turpentine Road, which was recommended for approval by the P&Z Board with BDP adding a 25-foot buffer around the entire project, applicant to apply for vacating of Hammock Trail and restrict access if vacating is not achieved, and meet with property owners on the west side to come to a compromise. The MUD boundary expansion was withdrawn by the applicant.

Rodney Honeycutt, representing the applicant, described the proposed development, including layout of the lots for mobile homes and RV's, road, stormwater management, and recreational areas. He stated the application was on the Agenda in May; there was opposition from neighbors and Sherwood Homeowners Association; they met with 100 people at Bent Oak Country Club who requested more time to study it; so it was tabled.

Mr. Enos advised if the applicant requests tabling, there is a reapplication fee. Chairman Scarborough stated the people requested it and not the applicant. Commissioner O'Brien stated it would be appropriate to change the Policy so it would not punish people who want to accommodate the public.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to waive fees for Brian and Heather Callligan to reapply for rezoning. Motion carried and ordered unanimously.

Mr. Honeycutt stated they met four times with 100 people and ended up with a binding development plan they felt everybody agreed to; one of the biggest opponents told him residents in Bar C Ranch are circulating petitions in opposition; he met with them, and at the P&Z meeting went through the BDP and a few other things; and they thought they met with everybody and submitted a plan based on what they were looking for. He stated they agreed to a 25-foot buffer for the RV park and the remainder of the property, decrease the total number of units from 537 to 399, install a four-foot berm along Turpentine Road and six-foot landscaping buffer or fence, and a 300-foot buffer on the south side. He advised they also agreed to have motor coaches no more than 22 feet in length and not allow others or tents; each lot will have water, sewer and power; and they will provide a 50-foot buffer on the boundary of Bar C Ranch and include a buffer around the part that is not Bar C. Mr. Honeycutt advised the north and south lines are mostly vegetated; and they agreed to apply to vacate Hammock Trail and limit access by park users if not approved. He stated the main entrance will be from SR 46; there will be no ingress and egress to the park from Hammock Trail; and they will post signs that park users are not allowed on Hammock Trail.

Commissioner Higgs inquired why it was not vacated; with Chairman Scarborough responding the people did not want it vacated but did not want the developer to use it. Mr. Honeycutt stated Hammock Trial is a dirt road, and all their roads will be paved. Commissioner Higgs inquired how the development fits into the new Wetlands Policy; with Assistant County Manager Peggy Busacca responding the land use is in the MUD and is not zoned commercial or industrial, so they would not be able to impact the wetlands at all without changing the Comprehensive Plan.

Bill Hall, representing Bar C Ranchettes, stated their lots are one acre; he moved there because it was quiet with no cars and noise; and they like the orange grove next door. He stated Mr. Honeycutt had meetings, but they did not know about the special meeting. Chairman Scarborough stated that meeting was with the Sherwood Homeowners Association. Mr. Hall stated Fawn Lake was also involved; they requested a meeting with Mr. Honeycutt, and he came out to talk with them; he came with a BDP and agreed to give them 50 feet; and they would like to have it run east of them not only south. He stated if the orange trees die, Mr. Honeycutt will replace them with vegetation; they are asking for 399 lots which is one less to avoid going to East Central Florida Regional Planning Council and have four counties involved; and requested the Board table the item so they can talk to Mr. Calligan and Mr. Honeycutt to give them 350 feet to the south and a fence on the 100-foot line. He noted some residents want it at 150 feet and some at 300 feet, so he is speaking for himself at 100 feet.

Bill Conway advised there are 14 homes in the area; most of the residents are elderly; to avoid a DRI the applicants stayed under the requirement by one unit; and if they want to come back and add more units, those units will go in their backyards because there are nice homes to the south. He stated they have a nice quiet neighborhood; and requested the item be tabled so they can talk to Mr. Honeycutt since they are the ones who will be impacted.

Chairman Scarborough advised Mr. Honeycutt had a lot of meetings with the community; 117 acres is a major development that touches a lot of people; and he could spend more time on it but would like a more casual setting. Mr. Calligan stated Mr. Honeycutt had meetings with the people and they were tense; and he will go along with it if Chairman Scarborough agrees to have the meetings in his office. Chairman Scarborough stated he hopes to have the site plan and development plan by then, and get them to the people for review.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to table Item 31 until September 2, 1999. Motion carried and ordered unanimously.

Item 32. (Z9907SH1) Louis Richard Mazzaferro, Louis Joseph Mazzaferro, and Sorgini and Sorgini, P.A. (continued)

Commissioner Voltz stated it is consistent with the rest of the BU-1 and BU-2 uses in the area; and they need "x" amount of space to make the project work with the retention needed.

Rochelle Lawandales thanked the Board for the waiver of fees; stated the proposed use is consistent with the approved Kane's Furniture Store use; U.S. 1 is car row and U.S. 192 is couch row; and in order to accommodate the square footage needed to meet the needs of the users of the property which is long and narrow, they need to go deeper to 550 feet.

Commissioner Voltz inquired if staff had a problem with the request; with Mr. Enos responding further west is deeper than that, and across the street and to the east is deeper; and there is a precedent set on U.S. 192, but not in this area.

Motion by Commissioner Voltz, to approve Item 32 as recommended by the P&Z Board. Motion died for lack of a second.

Commissioner O'Brien stated it is too deep. Ms. Lawandales advised in order to make it work, the dividing line was 550 feet; there is nothing behind the property; they back up to vacant property and a pond; across the street is 550 feet with a residential area; Kane's has residences and platted lots behind its store; and this request is compatible.

Commissioner Higgs inquired how many acres will be in the rear; with Ms. Lawandales responding about two acres. Commissioner Higgs inquired if 20 units will be back there; with Ms. Lawandales responding they would have the capacity to do that. Commissioner Higgs stated RU-2-10 abutting AU is a lot of density. Ms. Lawandales stated AU is intense use in terms of fertilizer, tilling, etc.; and there is nothing but trees, fill, and orange groves now. Commissioner Higgs stated AU is also residential. Commissioner Voltz stated she understands they do not plan to use that portion of the property; with Ms. Lawandales responding that is right. Mr. Enos stated there are RU-1-7 and RU-1-9 in the area. Commissioner Voltz stated RU-1-9 will have minimum impact. Ms. Lawandales stated they would be amenable to that. Commissioner Higgs stated the MUD has to go to the retention pond.

Commissioner Voltz inquired if the MUD can stop at the parking area; with Mr. Enos responding the Board can approve shared retention between two different zoning classifications where the zoning boundary splits the retention pond; and there may be more room to move it south. Ms. Lawandales stated they are open to compromise but need to keep the 550 feet because without a final site engineering plan for the two buildings they do not know what will be required for retention, parking, utilities, etc., and do not want to be caught short. She noted there will be two users and only one way to place the structures on the property; so she would appreciate that 50 feet. Commissioner Voltz inquired if Ms. Lawandales would agree to try and bring it back to 500 feet; with Ms. Lawandales responding they will do what they can if they can cross zoning districts with the retention pond. Commissioner Higgs stated she can support the MUD to 500 feet and RU-1-9 in the back with shared retention. Commissioner Voltz inquired what if they need ten more feet; with Commissioner Higgs responding it is not an issue of the MUD.

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to approve Item 32 with expansion of the MUD to 500 feet in depth, RU-1-9 to the rear of the property, and shared retention area. Motion carried and ordered unanimously. (See pages for Zoning Resolutions.)

PUBLIC HEARING, RE: ADMINISTRATIVE REZONINGS OF JULY 6, 1999

Chairman Scarborough called for the public hearing to consider administrative rezonings as recommended by the Planning and Zoning (P&Z) Board at its July 6, 1999 meeting as follows:

Item 1. Section 25, Township 29, Range 38, Parcel 750.1 owned by Stanley W. Lipinski, from RU-2-4 to SR, which was recommended for approval by the P&Z Board.

Motion by Commissioner Higgs, seconded by Commissioner Voltz, to approve Item 1 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 2. Section 17, Township 30, Range 39, Parcel 266.1, owned by Jack and Edith H. Dinnan, from RU-2-10(4) to RU-2-4, which was recommended for approval by the P&Z Board.

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

Item 3. Section 14, Township 29, Range 38, Parcel 276 (The Homestead Condo PH VI), owned by Aaron S. Landis and James Fluck, et al, from RU-2-4 to RU-2-10, which was recommended for approval by the P&Z Board.

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

Item 4. Section 10, Township 29, Range 38, Parcel 783, owned by Kenneth E. Fulton, from RU-2-10 to SR, which was recommended for approval by the P&Z Board.

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

PUBLIC HEARING, RE: NORTH MERRITT ISLAND DEPENDENT SPECIAL DISTRICT BOARD MEETING OF JULY 15, 1999

Chairman Scarborough called for the public hearing to consider recommendations of the North Merritt Island Dependent Special District Board made at its meeting of July 15, 1999, as follows:

Item 1. (Z9907201) Ronald E. Dimenna's request for change from SR to SR with BDP limiting density to 1.23 units per acre on 21.24 acres located on the south side of North Tropical Trail, west of SR 3, which was recommended for denial by the North Merritt Island Dependent Special District Board.

Chris Hurst of CVH Engineering, representing the developer of North Tropical Groves Project, advised Greg Glass and Jack Kirschenbaum, Attorneys for the developer, are also here. He stated the project consists of 21.24 acres; the present zoning is split, with the eastern half zoned with a mixed use that would allow two units per acre, and the western half zoned residential allowing one unit per acre; and the request is for SR with a binding development plan (BDP) having a density of 1.23 units per acre for a total of 26 units. He explained the preliminary site plan showing the total layout of the project; advised of the history of the project which was first submitted in 1996; and stated it was recommended for approval by the Local Planning Agency (LPA) at that time. Mr. Hurst advised great discussion concerning the drainage followed; north of the project is a pump which serves to drain everything that is in the basin; and pumps are not routinely approved by the County or St. Johns River Water Management District. He stated it was determined that they would go to the St. Johns River Water Management District and not come back to the Board until they received a permit for the project from the District; and they received the permit in June, 1999. He stated there was discussion of what could be done with the project if it were developed in strict accordance with the zoning; and presented a rough sketch showing that layout if the zoning boundaries were strictly followed, depicting half-acre lots along the eastern boundary and one-acre lots along the western portion of the project. Commissioner O'Brien inquired if they will not align; with Mr. Hurst responding no, it does not work. Mr. Hurst advised dealing with one-acre and half-acre lots is more difficult because there is no sewer in the area and septic tanks have to be installed on half-acre lots and make them work. He stated with the proposed layout, there is a lot of room for retention; and it could end up with the project being helpful to the drainage in the overall basin. He stated the drainage issue is separate from the rezoning issues; staff calculated that 29 units could be developed on the property; the preliminary plan shows 27 units; and they are proposing 26 units with a BDP. He stated they believe their proposed plan is superior to developing in strict accordance with the zoning boundaries, and that the project should now be approved.

Attorney Jack Kirschenbaum advised the question is which is better; the options are 27 lots of 14 half-acre lots and 13 one-acre lots or 26.7 lots with a BDP; and the answer suggests 26.7 lots is better because it spreads the density over the entire parcel, avoids concentrating the majority of the density on half the property, and the BDP gives the County more control to ensure the project is developed as designed. He stated approximately equal sized lots provide more balance to a development; half-acre lots on one side and acre lots on the other side does not provide a good development because it is not balanced; and by spreading out the density it would have better balance. He stated it reduces the overall density by one lot from what is permitted; that benefits the area and the development; it is a plan that has been approved several times and has gone on for many years; and it is a better development plan.

Richard Schneider, President of North Merritt Island Homeowners Association, advised the Homeowners Association concurs with the North Merritt Island Dependent Special District Board's recommendation that the request be denied for the following reasons: deviation from the Comprehensive Plan, setting a precedent on North Merritt Island with ensuing developments, and changing the Comprehensive Plan weakens the County's position to deny future requests for increases in densities. He stated they do not support increases in densities greater than RR-1; the character of the land has been established as AU, one unit on 2.5 acres or RR-1, one unit per acre; and they feel it is inappropriate to combine the two parcels which are SR, two units per acre and RR-1, one unit per acre, into an SR development. Mr. Schneider advised another serious concern is the proposed change in the water flow; they plan to fill in the existing canal and replace it with two drainage pipes; and there is concern whether those pipes can handle the flow of water in that area. He stated the proposed change in drainage should be endorsed by the Brevard County Stormwater Management Division before it is approved. He stated the safety, health and welfare of the people who will be moving into the area if approved, and the people in surrounding areas are their concerns because of the high water tables and history of flooding in the area; and requested the Board take that into consideration.

Commissioner Higgs stated the Comprehensive Plan deals with density and not the size of lots. Mr. Schneider stated the Comprehensive Plan has the area delineated as one unit per acre on the back parcel; and they would reduce it to ?-acre lots which is below one unit per acre. Commissioner Higgs stated that parcel is one unit per acre, but it is the lot size that concerns the Homeowners Association. Mr. Schneider stated they proposed to change the parcel in the rear to more than one unit per acre.

Terri Dingman advised their property adjoins the subject property on the west side; the Dingman family has been members of the community for many years, moving into North Merritt Island in the early 1900's; and they love it there, and love the rural character of the area. She stated rural communities have been diminished by uncontrolled development; and they would appreciate the Board taking the time to consider their concerns about the loss of their rural community through this over development. She stated several years ago Post, Buckley, Schuh & Jernigan conducted an extensive evaluation of the entire area north of the Barge Canal; one of the most significant determinations concerns the density of the area; their recommendation was that all future developments should not exceed one house per acre of land; the controlled density would combat the ongoing flooding problems that they suffer and assist in maintaining the rural character which drew many of them to the area; and requested the Board keep within the Comprehensive Plan approved density by allowing only one house per acre. Ms. Dingman stated the lot size, excluding the portion that will be under water in the ditch, will be approximately 100'x115'; that is a small lot to put a house and septic system on; they proposed to put 26 houses on those small lots; and there is nothing about the development that promotes the rural character that exists in that area today. She stated they are concerned that granting the request will bring others who will request the same type of approval for additional projects with small lots, further reducing the rural characteristics of the area; another concern is their dependency on the ditch to move the water off surrounding properties; and inquired what will keep it from becoming overgrown with weeds and slow down the flow of water. She stated Mr. DiMenna's project and all future projects should be held to one home per acre; that would be in keeping with the Comprehensive Plan for North Merritt Island; and requested the Board deny the application.

Arnie Dingman advised he owns 11 acres directly to the west of the subject property, and has lived there since 1976; it is a low area and gets water and floods; his neighbor's property is three feet below the crown of the road; so if the property has to be raised a foot above the crown of the road, his neighbor would have to raise his property four feet, which would not be good for him and all the other people who surround the property. Mr. Dingman stated at one house per acre, he would not lose that many houses and would have a happy neighborhood; Mr. DiMenna lives there sometimes across the street from his property; the representatives of the developer do not live there, but the people who voiced their concerns live there all the time; and the Board needs to think about them because they also vote. He stated the North Merritt Island Dependent Special District Board, North Merritt Island Homeowners Association Board, and all the homeowners are opposed to the development; and he hopes the Board will work with them and keep it at one house per acre.

Darleen Hunt advised she was made aware of this rezoning in 1996 and lost track of how many times they attended meetings with the Board, St. Johns River Water Management District, attorneys, engineers, Brevard County Surface Water Management, and their civil engineer. She stated owners on all sides are objecting with the exception of the east side which is County property and has a fire station; she has not talked to anyone who feels comfortable about the development as proposed; however, there has been a concerted effort to try and make it work and placate the adjacent property owners. She stated about a month ago the County Surface Water Management Office contacted them about a proposed canal to route the water in an alternate path as being proposed here; it may work and it could be a viable plan, but until a real plan is drawn up and easements are obtained, and until funding is appropriated, they still have to maintain their current position of concern. Ms. Hunt stated in mid-June they had a high rainfall and a lot of flooding conditions in many neighborhoods; and requested the Board keep that in mind when it votes for this rezoning request for a higher density in a flood-prone area. She stated their five basic concerns are: (1) worsening of the flooding conditions on adjacent property; (2) change in rural character of the area; (3) dependency on a Homeowners Association to maintain the water flow; (4) appropriateness of 26 septic tanks on lots surrounded by water and their effect on public health and safety; and (5) setting a precedent for higher development than allowed by the Comprehensive Plan. She stated they lost hundreds of orange trees because of flooding; water from their property sheets toward the land that is up for rezoning; the Post, Buckley, Schuh & Jernigan study of the basin completed in January did recommend culverts and ditching on their property; and they hope the County will follow through with some of the recommendations. She stated some homes are on 10 and 20-acre parcels; and 26 units on 21 acres will change the rural character of the area. She stated if the County permits the subdivision with the drainage system, the County should be responsible for the flow of water, and keep the ditches cleaned out and pumps going, and not rely on a covenant. She stated for those reasons, she requests the Board deny the zoning change.

Jerry Hunt advised the modeling done by the St. Johns River Water Management District was only on 41 acres to the south; it did not take into consideration any of the properties around it or the other pump located on the north end; so they approved it on a very small modeling area. He stated there is only one ditch that leaves the area and goes to the river; St. Johns River Water Management District does not want the water going into the river unless it goes into a pond and the sediment is taken out; so the District is happy with the situation that the water is not going straight into the river and backs up on their property.

Commissioner O'Brien stated the Board heard this item a few times; there was a problem with drainage, but it is a zoning issue not a drainage issue; however, he took into consideration the possibility of flooding and the responsibility the Board has to the neighborhood. He inquired if Mr. Jones can tell the Board what has been accomplished to resolve some of the problems that were cited.

Drainage and Surface Water Management Director Ron Jones advised the area presents a challenge because it is primarily drawn down by an existing pump station; and there are no guarantees that privately operated pump stations will continue to pump the acreage that drains to the area. He stated they reviewed the calculations of the proposal submitted to the St. Johns River Water Management District; the District has permitted a gravity outfall in addition to the existing pump outfall; and they modeled the system based upon the pump not being in operation with a new gravity outfall. He stated there is concern on the part of staff as to the adequacy of the size of the outfall they permitted, but that is an issue that can be resolved during the County permitting process at a later date. Mr. Jones stated another concern was the Homeowners Association being responsible for maintaining the flow through the system; although the Homeowners Association is responsible for maintenance of those facilities, the County always takes drainage easements for maintaining flow in case there is a blockage; so the County would have the ability to go in and remove any blockages that occur during that time frame. He stated staff does not think the subdivision proposal will worsen flooding conditions from what exists today; they do not think it will make it a lot better either; the applicant's attorney wrote a letter indicating a willingness to work with the County in granting easements to allow for a gravity outfall that would bypass the pump station in its entirety; and staff intends to work with St. Johns River Water Management District to have a better long-term solution for the area.

Attorney Jack Kirschenbaum advised the plan as proposed does not increase density; under the existing zoning, they could put 27 houses on half-acre lots and one-acre lots; under the proposal, the overall parcel will have 26 units; and with the binding development plan, it reduces the density by one unit and is not uncontrolled development. He stated it is not two pieces of property; it is one piece with a ditch that severs the property; so they are not trying to combine two separate pieces of property. Mr. Kirschenbaum advised the flooding problem is a non-issue; he was not involved with the project at the time the Board wanted them to go to the St. Johns River Water Management District to take care of the flooding issue; they did that and got a permit from the District; and the calculations have been reviewed by County staff. He stated the flooding is not going to get worse and the project may make it better; Mr. Jones indicated it may not be a lot better, but they can make it better; however, this is not a flooding issue or stormwater issue, it is a zoning issue. He stated they are not increasing density or engaging in uncontrolled growth; they have a BDP reducing the overall density; and it is a good plan.

Commissioner Carlson advised she did not get the minutes from the Zoning Board that would indicate justification for denial. Mr. Enos advised Mr. McFarland made the motion to recommend the request be denied on the basis it did not comply with the Comprehensive Plan for density; Randy Bunkley seconded the motion; and there was a lot of discussion on it. He stated some members did not think that was the case; and the vote to deny was five to two.

Commissioner Higgs stated the parcel is divided by a ditch; one density is on one side of the ditch and another density on the other side; and inquired if there is language in the Comprehensive Plan Future Land Use Element that could guide the Board; with Ms. Busacca responding there is some flexibility; residential densities are not rigid delineations and allows movement a short distance in instances where they bisect a piece of property; and although it is available, it is seldom used. She noted in the past staff did it administratively. Commissioner Higgs inquired if they could move the one unit per acre to the east; with Ms. Busacca responding the Comprehensive Plan talks to density not lot size because often there is a density of one unit per acre, but because of wetlands and other preservation areas, the lots would be smaller. Commissioner Higgs stated she remembers moving density around, but the density on the parcel stayed the same; and in this case the density and parcel are divided; with Ms. Busacca responding there is a provision to allow the density to be moved administratively. Commissioner Higgs stated staff did not move it; with Ms. Busacca responding no, staff did not feel comfortable doing it based on knowledge of the sensitivity of the area, so they felt it deserved a public hearing. Commissioner Higgs inquired when will the Board consider the FLUE; with Ms. Busacca responding hopefully in September. Commissioner Higgs expressed concern about two different densities with a clear division of the property.

Commissioner O'Brien advised the Board makes Comprehensive Plan changes often; the government divided this property with a ditch; the applicant reduced density by one lot; and increased some lots from ?-acre to ?-acre, so it accomplishes more than the Comprehensive Plan would accomplish. He stated the Comprehensive Plan addresses density not lot size; on one side is all one-acre lots, but anyone who develops property should be granted the opportunity to do it right, line up the houses, have drainage plans, etc. which they have done. He stated the applicant has reduced density by one lot; the BDP confines them to the agreement to follow the plan; by allowing the change, approximately equal size lots will be built versus one-acre on one side and half-acre on the other side of the ditch; they obtained a permit from St. Johns River Water Management District; and it is a trade off by taking one-acre lots and making them ?-acre lots, and taking ?-acre lots and make them ?-acre lots. Commissioner O'Brien stated he agrees the area has a rural character; but no one addressed the new subdivisions, Otter's Run, Savannahs, Indian Bay, Sunset Lakes, and others that are platted; this is a very small subdivision with 26 lots, not 425 or 2,000; and the BDP requires the drainage ditches to be maintained by the Homeowners Association. He stated the maintenance responsibility should be done by covenant or deed restrictions; but this is a zoning issue not a flooding issue; and it will be 26 units instead of 27 units which is possible with the present zoning. Commissioner O'Brien stated building permits should not be issued until easements are obtained and gravity outfall is in place; the County has responsibility to all residents to maintain the ditches; the Comprehensive Plan addresses density and not lot size; lot size can be changed to achieve less density; so he will move approval of the request.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to approve Item 1, with a Binding Development Plan limiting density to 1.23 units per acre, covenants or restrictions on titles and deeds for continuous maintenance of drainage ditches and pipes, no building permits be issued until all the other parts are achieved, and the BDP be brought back to the P&Z Board for review and approval.

Commissioner Carlson stated the audience brought up septic tank contamination of the area and level of property compared to level of the road; and inquired if there are protective measures to resolve those problems; with Mr. Jones responding he spoke to the supervisor of septic tank permitting operations and met with the applicant's engineer; they looked at the situation and feel comfortable it will meet the criteria; and the retention/detention pond system is being put in at a larger capacity than the minimum requirements, so staff feels comfortable it will not be an issue.

Commissioner Higgs stated she is not comfortable with what it would do on the western side; there are 21.24 acres; that side is not consistent with the Comprehensive Plan; and she would prefer to err in the area of being consistent with the Comprehensive Plan and deny the application. She stated if the applicant wanted to come back and do a Comprehensive Plan change, she could come closer to considering what is being asked; what they are proposing is not bad; but she is literal in regard to the Comprehensive Plan.

Chairman Scarborough advised when doing comprehensive planning, drainage patterns, capacity to handle septic tanks, density, etc. go into setting criteria and give a logical sequence of how to determine if an area should be one unit per acre. He stated the proposal looks good, but of all the areas in the County, this is one that the Board needs to take the greatest concern over in the way it develops; the Comprehensive Plan was not developed casually and randomly; so he cannot support the request.

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

Commissioner O'Brien stated that is too bad because there is a section in the Comprehensive Plan that allows the Board to do this. Chairman Scarborough stated the Board cannot look at one place and needs to look at all of North Merritt Island; the slush maps indicate under certain storm conditions that whole place could be a mess; and the magnitude of problems that could occur on North Merritt Island is frightening. Commissioner O'Brien stated he understands, but now they can build 27 units on the property. Chairman Scarborough stated to vote in favor of this ignores the uniqueness of the area.

Ms. Busacca advised Future Land Use Policy 10.6 says, "Densities may be considered for transfer within a project via planned unit development or binding development restriction, provided the final densities within the project's developed area do not exceed the density permitted in the designated density area by more than 50%. When determining the final density of the development area, all other requirements of the Comprehensive Plan must be taken into account." She stated in the case of the area on this parcel of one unit per acre, if it is internal to the project and the overall density is consistent, it could go up to 1.5 units per acre for a portion of that because it says shall not exceed the density permitted in the designated density area by more than 50%. She stated this contemplates the instance before the Board now.

Chairman Scarborough inquired if anyone who voted in the negative want to reconsider the item. Commissioner Higgs stated it says "may".

Item 2. (Z9907202) Charlie C. and Virginia E. Weaver's request for change from AU to RR-1 on 10? acres located on the north side of Hall Road, east of N. Courtenay Parkway, which was recommended for approval by the North Merritt Island Dependent Special District Board.

Richard Schneider, President of North Merritt Island Homeowners Association, advised there was discussion at the North Merritt Island Dependent Special District Board meeting that Mr. Campbell would be willing to do a binding development plan to develop six lots on the ten-acre parcel. He stated they are in favor of the proposal, but due to the agricultural nature of the surrounding area and the close proximity to the wilderness area to the east, the Association would prefer a BDP limiting development to six lots on the ten-acre parcel.

Chairman Scarborough inquired if Mr. Campbell is in agreement; with John Campbell, representing the applicants, responding he was not prepared because they did not have to go through it at the District meeting; but his clients do not plan to develop a subdivision there. He stated he heard the rhetoric about North Merritt Island, one unit per acre, and RR-1 zoning; they are asking for RR-1 zoning which was approved by the Dependent District Board; even though his clients do not plan to develop a subdivision, they plan to cut flag lots; and it would be unfair to restrict them to just that and the cost of going through a BDP.

Chairman Scarborough advised a BDP would not be necessary if Mr. Campbell will state for the record that they will go with six lots, and the motion is made for six lots. He stated it is a simple thing to do and would not need a complex document unless Mr. Campbell is uncertain. Mr. Campbell stated it would be an additional expense for his clients to see an attorney about the BDP. Chairman Scarborough stated it does not have to be a complex document unless Mr. Campbell is not comfortable proceeding. Mr. Campbell stated it is just the principal of the thing, as he heard about RR-1 and one-acre lots earlier. Commissioner O'Brien stated he would agree to RR-1 based upon six units. Commissioner Higgs inquired if that is what Mr. Campbell wants; with Mr. Campbell responding that is what they were proposing; they are not proposing a subdivision; but they have ten acres. Commissioner Higgs stated if Mr. Campbell said six lots at the District Board meeting, they believed him. Mr. Campbell stated he does not know, he is tired, it is late, and if six is what the Board wants, then it can have it.

Discussion ensued between Chairman Scarborough and Mr. Campbell about requesting RR-1 zoning, objection to the BDP, telling the District Board they would create six lots, and being evasive and fraudulent.

Mr. Campbell stated they would like to get six building lots out of the ten acres. Commissioner Higgs inquired if that is a binding statement; with Mr. Campbell responding that is fine and what he wants.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to approve Item 2 limiting development to six lots on the rezoned area. Motion carried and ordered unanimously.

Item 3. (Z9907206) Caroline M. Wiggins' request for change from AU to EU-2 on 19? acres located on the east side of North Tropical Trail, south of Wild Flower Street, which was tabled by the North Merritt Island Dependent Special District Board until August 12, 1999 at the request of the applicant.

Motion by Commissioner Higgs, seconded by Commissioner Voltz, to table Item 3 as recommended by the North Merritt Island Dependent Special District Board. Motion carried and ordered unanimously.

Item 4. (Z9907208) Estate of Doris L. Wolfe w/Leonard Spielvogel as Personal Representative's request for change from BU-1 to BU-2 on 0.6 acre located on the west side of SR 3, south of Sunset Lakes Drive, which was recommended for approval by the North Merritt Island Dependent Special District Board limiting use to all BU-1 uses and wholesale nursery, landscaping business, irrigation business, lawn care business, and associated storage, excluding the west 70 feet which was withdrawn by the applicant.

Richard Schneider, President of North Merritt Island Homeowners Association, advised they are in agreement with the recommendation, but it was unclear whether the BU-2 was a conditional use or BU-1 with special use for the things mentioned. He stated they spent many hours studying the character of the SR 3 corridor; a series of recommendations have been proposed to guide the commercial development of that corridor in a manner that would be attractive and in keeping with the rural character of North Merritt Island; and the Association wants to promote general retail commercial BU-1 zoning along SR 3 with attractive landscape buffers, and opposes more warehouses, heavy repair facilities, and unsightly outdoor storage of heavy equipment, machinery, etc. He stated the proximity of the development to Sunset Lakes poses a potential conflict with noise from heavy equipment; the owners of the two parcels across SR 3 made their concerns known to the Homeowners Association about the increase in industrial character of the SR 3 corridor; and they oppose any future expansion of the area in a BU-2 nature. He stated they do not oppose this request because of the way they designed it as BU-1 with special use of non-heavy equipment; but they want the Board to consider not approving new BU-2 uses in the future and keep it BU-1.

Commissioner Voltz stated that would be nice, but the Board does not know if the properties are vacant or built on; and it is difficult to determine the character of an area if there is nothing there. Commissioner Higgs advised each Commissioner has REDI maps in their offices, or staff could bring them to the meeting. Chairman Scarborough inquired if staff could include a copy of the REDI maps in their booklet; with Mr. Enos responding they can do that, and are getting close to providing digital photography from the Property Appraiser's Office.

Motion by Commissioner O'Brien, seconded by Commissioner Higgs, to approve Item 4 as recommended by the North Merritt Island Dependent Special District Board. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING SECTION 62-2117, PARKING OF RECREATIONAL VEHICLES AT SINGLE-FAMILY RESIDENCES

Chairman Scarborough called for the public hearing to consider an ordinance amending Section 62-2117, regarding parking of recreational vehicles at single-family residences.

Commissioner Higgs inquired if the insertion of the language under B.7 means it is only trailers, boats, campers, and motorized vehicles that are parked in the driveway perpendicular to the street and would not affect someone's car; with Assistant County Attorney Eden Bentley responding it would affect pickup trailers whatever that is. Commissioner Higgs inquired if it would not affect pickup trucks or standard vehicles; with Mr. Enos responding it would not.

Commissioner Voltz advised she did not receive paperwork on the ordinance; consequently, she cannot vote for it. Chairman Scarborough advised the Board has discussed it extensively; and inquired if Commissioner Voltz would like to continue the public hearing; with Commissioner Voltz responding she has not seen it and cannot vote on it. Commissioner Higgs and Chairman Scarborough stated they are comfortable voting on the ordinance.

There being no further comments or objections heard, motion was made by Commissioner O'Brien, seconded by Commissioner Higgs, to adopt Ordinance amending Chapter 62, Land Development Regulations, Code of Ordinances of Brevard County, Florida; amending Article VI, Section 62-2117(a) and 62-2117(b) by amending parking regulations for recreational vehicles and boats at single-family residences; providing for conflicting provisions; providing for severability; providing for area encompassed; providing an effective date; and providing for inclusion in the Brevard County Code. Motion carried and ordered; Commissioner Voltz voted nay.

Upon motion and vote, the meeting adjourned at 10:34 p.m.

ATTEST:

TRUMAN SCARBOROUGH, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

SANDY CRAWFORD, CLERK
(S E A L)