The Board of County Commissioners of Brevard County, Florida, met in regular session on September 21, 2000, at 5:35 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Nancy Higgs, Commissioners Truman Scarborough, Randy O'Brien, Sue Carlson, and Helen Voltz, Assistant County Manager Peggy Busacca, and Assistant County Attorney Eden Bentley.

The Invocation was given by Commissioner Helen Voltz.

Commissioner Randy O'Brien led the assembly in the Pledge of Allegiance.

RESOLUTION, RE: PROCLAIMING NATIONAL PHARMACY WEEK

Commissioner O'Brien read aloud a resolution proclaiming October 22 through 28, 2000 as National Pharmacy Week in Brevard County.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to adopt Resolution proclaiming October 22 through 28, 2000 as National Pharmacy Week in Brevard County, and encouraging all citizens to acknowledge the valuable services of pharmacists to provide safe, affordable, and beneficial pharmaceutical care services and products to individuals. Motion carried and ordered unanimously.

Commissioner O'Brien presented the Resolution to Mr. Hobbs of Hobbs Pharmacy on Merritt Island who advised that each year the Association focuses on problems created by medication; and stated patients need to communicate with their pharmacists on drug interaction and problems. He noted they should "educate before they medicate."

REPORT, RE: PRESENTATIONS BY FINANCIAL ADVISORS

Chairman Higgs suggested contacting each firm that submitted proposals for financial advisor services, and giving them ten minutes each to make presentations to the Board and ten minutes for questions from the Board. She stated the Board would not have to make a decision at that meeting, but consider what it was given and discuss how it wants to handle the rating.

Commissioner Carlson inquired if the Board will have evaluation criteria; and Chairman Higgs recommended staff provide evaluation criteria before the meeting. Commissioner Scarborough disagreed with cutting off questions after ten minutes. Chairman Higgs stated the questions should be balanced among the group.

REPORT, RE: LAST MINUTE PAPER WORK

Commissioner O'Brien advised of receiving paper work in his office at the last minute; and stated it arrived in an untimely manner. Chairman Higgs stated she had a briefing with staff and did not receive answers until 12:15 p.m.; she asked about the rezoning and wanted as much information as she could get before the meeting; and if Commissioner O'Brien does not want to receive information, she will not send it to him in the future. Commissioner Voltz advised she did not receive the information.

PUBLIC HEARING, RE: ZONING RECOMMENDATIONS OF SEPTEMBER 11, 2000

Chairman Higgs instructed the County Attorney to explain the procedure and Code criteria. Assistant County Attorney Eden Bentley explained the procedure for addressing the Board, and advised of what the Code requires for testimony to develop arguments in their favor. Chairman Higgs then called for the public hearing to consider the recommendations of the Planning and Zoning (P&Z) Board, made at its public hearing on September 11, 2000, as follows:

Item 18. (Z0009503). Gleason Brothers & Company's request for change of classification from AU to RU-1-13 on 23.965? acres located on the south side of Aurora Road, west of Easy Street, which was recommended for denial by the P&Z Board.

Commissioner Voltz advised the applicant has hired an attorney, has a meeting scheduled with the residents, and needs that opportunity; so the item should be tabled for 60 or 90 days. Assistant County Attorney Eden Bentley advised a date certain needs to be established.

Motion by Commissioner Voltz, seconded by Commissioner O'Brien, to table Item 18 until December 7, 2000 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item 1. (Z0009101) Wilbert R. and Arma J. Durrett's request for change from GU to AU on 3.4 acres located on the east side of Osprey Avenue, south of Cangro Street, which was recommended for approval by the P&Z Board.

Commissioner Scarborough advised if there are no problems with Items 1 through 8, he will make a motion to approve those Items.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Items 1 through 8 as recommended by the P&Z Board.

Chairman Higgs advised there are a number of issues in West Canaveral Groves that need to be considered; if the Board continues to increase the density in that area, it will multiply the problems with no infrastructure; so she is concerned about the rezoning with the ability to subdivide lots. She requested Mr. Enos explain the items.

Zoning Official Rick Enos advised Chairman Higgs had questions about Items 1, 4 and 5 which are requests for AU or ARR on nonconforming lots; she asked if the requests could be something other than ARR to prevent them from splitting into more lots, and what steps could the Board take to ensure decrease in density; and the answers vary based on the circumstances. He stated Item 1 has GU on two 1.7-acre lots or a total of 3.4 acres; AU requires 2.5 acres; so rezoning those two lots to AU removes the nonconforming status and prevents the lots from being subdivided into two parcels. He noted it could be rezoned in the future, but once the AU happens, that puts the two lots together, and they cannot be divided. Commissioner Scarborough stated he will withdraw the motion and take each item separately.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to withdraw the motion approving Items 1 through 8. Motion carried and ordered unanimously.

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

Item 2. (Z0009102) John Gaynor, John Brayboy, and Agnes Gaynor's request for change from GU to ARR on 1.4 acres located in the northeast corner of Eureka Avenue and Satellite Boulevard, which was recommended for approval by the P&Z Board.

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

Item 3. (Z0009103) Donald Byrd's request for change from GU to ARR on 1.06 acres located on the southeast corner of Outback Road and Satellite Boulevard, which was recommended for approval by the P&Z Board.

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

Chairman Higgs advised there are scattered ARR in the area and the character has not been established as ARR. She stated according to the map, it looks like more than one acre. She called for a vote on the motion. Motion carried and ordered unanimously.

Item 4. (Z0009104) William O. and Cora S. Cox's request for change from GU to ARR on 2.04 acres located on the southwest corner of Harley Avenue and Ardelle Lane, which was recommended for approval by the P&Z Board.

Mr. Enos advised ARR requires one acre; it will remove the nonconforming status; and those parcels are not big enough for AU which requires 2.5 acres, so it will not remove the nonconforming status. He stated there is no requirement that they cannot split the lots; and the only way to do that is a BDP with the owners agreeing they will not split the lots.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to table Item 4 until November 2, 2000 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item 5. (Z0009105) Don Whidden's request for change from GU to ARR on 2 acres located on the south side of Bear Trail, west of Satellite Boulevard, which was recommended for approval by the P&Z Board.

Don Whidden advised he bought the two lots as one. Commissioner Scarborough inquired if Mr. Whidden would agree that the two lots will stay as one with a BDP; with Mr. Whidden responding that is fine with him.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item 5 with a binding development plan (BDP) that the two lots will remain as one lot. Motion carried and ordered unanimously.

Item 6. (Z0009106) Christine Mitchell's request for change from AU to ARR on 1.62 acres located on the north side of Airboat Avenue, west of Satellite Boulevard, which was recommended for approval by the P&Z Board.

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

Item 7. (Z0009107) Jerry W. and V. Shirley Solomon, Charles Heller, and Garnet Thurston's request for change from TR-1 and AU to BU-1 on 2.92 acres located on the east side of U.S. 1, south of Roosevelt Road, which was recommended for approval by the P&Z Board.

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

Item 8. (Z0009108) Christine Somerset's request for change from AU to RRMH-1 on 2.18 acres located immediately south of the Volusia County Line, west of U.S. 1, which was recommended for approval by the P&Z Board.

Chairman Higgs advised everything around the area is AU except on U.S. 1; there are some RRMH-1 which could be further subdivided; and there are access problems and no services. Mr. Enos advised RRMH-2.5 will prevent the property from being split.

Commissioner Voltz inquired if staff knows what the zoning is in Volusia County adjacent to this property, and if the rezoning will be compatible; with Mr. Enos responding they do not know what the zoning is in Volusia County. Commissioner Voltz stated it could be zoned commercial; with Chairman Higgs responding it is all rural residential in that area.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item 8 as RRMH-2.5. Motion carried and ordered unanimously.

Item 9. (Z0009201) J.J.K.L.C. Company and Heinz Knobel's request for change from SEU with CUP for horses and goats, barn, and private heliport to REU with CUP for farm animals and fowl, and retaining CUP for private heliport on 15.7 acres located on the west side of South Tropical Trail, south of Tequesta Harbor Drive, which was recommended for denial by the P&Z Board.

Heinz Knobel advised it is the same problem, but this time someone has gone further in attacking his family; and submitted photographs of his wall that was painted on Monday night when they received a card by mail to come to the Planning and Zoning meeting and the Board meeting. He stated someone painted swastikas on his wall with letters saying "go home"; his son is an American citizen, born here and could not go home because his home is America; but he could go to Switzerland. He stated this is not an issue about zoning, it is an issue about his family and their animals; and he requested another zoning after discussions with Rick Enos and Robin Sobrino who recommended REU to right the problems with the animals that they have had for four or five years. He stated with REU he could build 1,200-square foot homes; everybody was afraid it would destroy the value of their properties, so a lot of people came out against it; and his plan was not to rezone his property to anything else than it is right now which is SEU. He stated the only problem is the animals, which created the different zonings, CUP's, and whatever else he had to go through in the last five years. Mr. Knobel advised he asked Mr. Enos two days ago to give him a list of all the CUP's for ducks and geese on South Tropical Trail that were given in the past, but Mr. Enos was not able to show him one CUP. He stated Commissioner Scarborough approved cows and horses with no connection to acreage; Commissioner O'Brien approved different items as the Chairman; he turned in Jim Swann, but called him first to tell him he was sorry he had to turn him in because he had geese; Code Enforcement said he was not allowed to have geese; but one letter sent to Mr. Enos and Commissioner O'Brien and the whole case was resolved and over and the geese are still on the property. Mr. Knobel stated what he is requesting is not to rezone his property, but to let his family live in peace and freedom, and to be treated the same as the Board treats everybody else on Merritt Island. He stated James Paul turned him in over ten times in the last four years; and he cannot take it any more because people have put nails in his driveway, smashed beer bottles in his grass where the horses graze to hurt the horses, and poisoned meat was found on his property besides the paintings he gave the Board pictures of. He stated they have been violated again and again; it is only an issue about a couple of animals; and when the Commissioners read the letters he gave them from James Paul and Mr. Shaffer, they will know what he is talking about. He stated he will agree to everything the Board will do, including that the property will go back to SEU if sold, no more animals than what he has now, no house smaller than 5,000 square feet, if he can keep the animals he has now until he sells his house and leaves Brevard County.

Chairman Higgs advised she speaks for the entire Board in saying that the comments on the wall are not acceptable behavior in the community, and the Board does not support it; she does not know how it will vote in terms of the zoning issue, but that behavior is unacceptable; and the Board is sorry it went on in Brevard County.

Beth Kring advised she lives about a mile from Mr. Knobel and does not have a problem with his animals, but she has a problem with the rezoning. She stated they tried to build a guesthouse and live in it until they could build a larger house and were not allowed to because it had to be 2,000 square feet. She stated the change in zoning concerns her; she is sorry Mr. Knobel had his house defaced; but those who live on South Merritt Island have lost signs and had vandalism, which is the natural procedure of the children who live there and who like to destroy property. She noted she lost a very large sign that ended up in someone's bedroom, and finds it hard to believe that mother can ignore it.

Rochelle Lawandales of Lawandales Planning Affiliates, advised she is a member of the American Institute of Certified Planners and has been in business in Brevard County for over 20 years; and she represents Mr. and Mrs. Roger Dobson, Mr. and Mrs. Shaffer, Mr. and Mrs. Dean, Mr. Paul, and Mr. and Mrs. Kim Hooper on this item. She stated the Board was given a copy of a document she submitted to the Planning and Zoning Board along with some photographs; and she has several things to enter into the record today.

Chairman Higgs advised the Board needs to let Ms. Lawandales enter documents into the record, so she will start the clock after she finishes.

Ms. Lawandales presented aerial photos to the Board, and noted the large parcel in the middle is the Knobels' residence, and surrounding that parcel are her clients' properties except for Mr. and Mrs. Dobson who live further to the north. She stated several of her clients are here to speak. She stated Exhibit "A" is the rebuttal; and Exhibit "B" is a copy of the aerial photograph which shows very clearly the demarcation of the property lines and rebuts some information in the conditional use in terms of the existence of trees and buffering between the parcels. She stated although Mr. Knobel owns considerable acreage, the Brownes have been affected, as well as the Shaffers, Hoopers, and Mr. Paul. She stated her clients are upset about the defacing of Mr. Knobel's property; several of her clients are Jewish and would not have committed that kind of defacing; and if she had knowledge that they did, she would not have taken the case. Ms. Lawandales advised Exhibit "C" is a series of letters from affected residents; and Mr. Dobson asked if she could read part of his letter into the record.

Chairman Higgs advised she does not want to get too far from the general procedures; and inquired if the letter could be made part of the record. She stated she will start the clock if all that testimony is going to be put into the record.

Commissioner Scarborough stated historically when an applicant puts a lot of things in the record, they use part of their time; and he would hate to see two segments where there is an immense amount of information placed in the record and letters read, then they get five minutes to discuss the issues, because that is a substantial change from the regular rules. Chairman Higgs noted she thought it would only be a list of things that would be put in the record.

Ms. Lawandales advised Exhibit "D" is the Action File Recap; there are documents from Code Enforcement which include testimony given at a February 3, 2000 hearing that reads, "In addition, none of the species mentioned are wild or indigenous to Florida. They are all domesticated breeds, so any allegation of wild birds that come and go is false." She stated the important matter is the area of Merritt Island has stayed the same for many years; and there has been no change in character and nothing to alter the suburban nature of the area. She stated rural lands are large vast expanses where animals roam; and one expects to have nuisances, but the nuisances that exist on the property are represented in the pictures of deposits left on driveways and horses in yards at all hours of the day and night. She stated considering the capacity of having 60 or more horses and numerous other types of animals, those are not what the people on south Merritt Island bought into when they purchased their properties. She stated the request for rezoning and conditional use is contrary to the existing character, inconsistent with surrounding zoning, and contrary to the public and environmental interest of that portion of south Merritt Island. She noted when considering hours of operation, she does not know how they would turn off ducks and geese at a certain hour so they do not bother the neighbors. Ms. Lawandales stated there have been increased incidents of odors and noise associated with this property; and to legalize and eliminate the problems that have been occurring due to lack of responsible treatment and containment through rezoning is not fair to the surrounding neighbors. She stated it is a suburban area in an urbanizing area of the County; and requested the Board consider the neighbors and protect their rights and quality of life by denying this request.

Jamie Hooper advised she shares a quarter of a mile common lot line with Mr. Knobel; her brother was not able to attend the meeting, and wanted her to read his letter into the record, as follows: "Ladies and Gentlemen: I'm unable to attend tonight's meeting and desire that this letter be read into the record. I live immediately to the south of Mr. Knobel at 6525 South Tropical Trail. I'm a commercial landowner and developer in Central Brevard. My family has owned this property for 50 years. Members of my family have lived on this site for the last 18 years. During this time we have watched the development of South Merritt Island. The suburban character of South Tropical Trail has remained consistent even through the growth of the last decade. This proposed zoning has the potential to change this and should be denied. We have not had any particular problems living next door to the Knobels. I view this as essentially a business decision. What is the potential impact of this rezoning? I regret that this issue has become so emotional for some. For me a rezoning opens too many unanswered questions. REU zoning would permit too many horses in an area with neighbors. We can only assume that 50 plus horses could be quartered next door since the application contains no offer of a specific number. What will be the impact of this number of horses? What would be the environmental impact particularly in terms of runoff into the Lagoon? The Department of agriculture tests already show high levels of fecal contamination along that stretch of the river. It would be irresponsible for the Board to approve a rezoning without a thorough environmental study. The Indian River Lagoon is watched very closely by environmental groups that have demonstrated their willingness to employ the courts against governmental bodies they feel as irresponsible. The County does not need to risk this expense. Lastly, what would be the impact on property values? No opinion has been presented by a licensed appraiser. Lastly, spot zoning is a dangerous precedent to set in the absence of a clear benefit for the community affected. Thank you very much."

Renee Shaffer advised she lives directly north of Mr. Knobel's property and wants to say she is sorry about what happened with the swastikas and go home signs. She stated she is a product of two European parents who left the Holocaust area and have no aunts, uncles, or cousins to speak of because of that; and she has a lot of feelings for what happened, but also feel it is wrong for Mr. Knobel to blame the neighbors when there are a lot of other toes he has stepped on. She stated Mr. Knobel came to her house to ask if he could have horses; she said that was fine as long as he kept it to the four; and she told him if she had any odor problems or the number of horses increased, she would report it, which she did. She stated she reported the five horses, and since then one has left. She stated she is not a bad neighbor as Mr. Knobel may think; she is a nurse and works 4:00 p.m. to midnight and gets home around 1:00 a.m.; on two occasions one of his horses was on her property; and she did not call the police or wake up Mr. Knobel. She stated recently there were two horses in her yard eating the vegetation and stepping on lawn sprinklers; and she wanted to call the police, but her husband said no, and went to get Mr. Knobel who took the horses back. Ms. Shaffer related a story of one of Mr. Knobel's dogs which had a large cut on its paw, and when her daughter called the Knobels, they were not going to do anything about it, so her daughter called the veterinarian and was ready to take the dog in, but they took him in. She stated there are a lot of other little things, but she does not want to get picky about it; she does not want to constantly come to this forum on this matter; the Board needs to put a stop to this, and not have spot zoning; and she is tired of it and does not have the time to deal with it.

Michael Shaffer stated he understands how someone could feel rules were preventing the use of his or her property, but the analogy that all people are protected by the First Amendment in free speech does not give one the right to stand up in a crowded theater and yell fire; so zoning is to protect all people. He stated people who buy near an airport then complain about the

airplane noise are totally immoral in his view. He stated they should be as friendly to Mr. Knobel as they can be; at the P&Z meeting he read a letter from Al Trafford who lived on Merritt Island a long time and was a major player in the zoning of Brevard County; and part of the letter said, "I strongly feel that spot zoning, the subject of rural estate use (REU) would be an irreversible error and set a precedent that would be difficult to reverse. It would be difficult to deny other applicants the same classification." Mr. Shaffer stated that is the sum of his feelings.

James Paul advised he has lived in the area 16 years; his property is 150 feet south of Mr. Knobel's property; and his concern is the rezoning. He stated SEU has been in place 37 years and unbroken; and changing it to REU would be inconsistent, incompatible, and spot zoning, and would devalue properties in the area, and have negative impacts with 60 horses, barn yard animals, fowl, insects, rats, mice, noise and odor, as well as change their quality of life. He stated they have a certain lifestyle; it is very quiet there; and since Mr. Knobel pointed his finger at him as the culprit who put swastikas on his mailbox and broke beer bottles on his driveway, he wants to tell the Board and everybody, especially Mr. Knobel and his family, that he absolutely had nothing to do with any of that. He stated he did call Code Enforcement to clear the animals off the property; there were 30 plus ducks, chickens, geese, sheep, and goats; he did not have a problem with the two goats or the four horses, but the animal population continued to grow; and that is all he has done to Mr. Knobel.

Mr. Knobel advised he did not point his finger at Mr. Paul or said that he did those paintings; and he wants that to be part of the record also. He stated the story about the dog is a big lie; they take care of their animals better than anyone else; he brings more animals to the shelter than anybody on Tropical Trail; and the horse Ms. Shaffer said created a big smell is a tiny horse, smaller than a dog. He stated they are talking about the animals that he could add to the property; and if the Board finds no point to finalize this forever, it will be time to sell his house. He stated he could split his property into 14 pieces and sell it to 14 people for 14 homes which could mean at least one animal, two children, and two cars per home for totals of 14 animals, 28 children, and 28 cars. He stated he has four horses on eight acres to the south with the CUP and could have six horses on the other eight acres, or split the property into three pieces and sell it to his family so they would have three different ownerships and could have 18 horses; and nobody in the world could stop him from doing that. He stated six horses on five acres is in the Zoning Code; he could do that tomorrow, but will not; and all he is requesting is to keep the animals he has now and not add to them. Mr. Knobel stated he has four horses, one goat, ten or twelve ducks, and four geese; and that is all he would like to keep, and does not want to add another animal. He stated this problem has to stop somewhere or he would have to take it to court again; he did once and Mr. O'Brien tried to stop him; and he will do it again for his rights. He stated he believes the Board does not have anything against his family; and requested it resolve the problem so it will be over, and they can stay here, and some day go back to Switzerland and say America is a nice country, go and try it.

Chairman Higgs asked the County Attorney to clarify where the burden of proof is in a conditional use permit. Ms. Bentley advised if the applicant shows he has complied with the Code criteria, then the Board has to show a detrimental impact to the public in order to deny the CUP; and the courts have kept that bar very low insofar as what is required for the applicant to show in order to meet the Code criteria.

Commissioner O'Brien advised the P&Z Board, after hearing competent and substantial evidence, moved to recommend denial of the request by a unanimous decision; and Mr. Dobson pointed out that it would be spot zoning, incompatible with the neighborhood, inconsistent with the Comprehensive Plan because it would reduce the minimum square footage of residential dwellings from 2,000 square feet to 1,200 square feet, and substantially reduce property values because of that, and would set a precedent for further rezoning. He read part of Mr. Dobson's letter as follows: "My property has been in my family for over 100 years, and I have resided there for the past 24 years. This zoning has been in effect for the past 37 years. I am sure you and other former District 2 Commissioners have also been requested to support zoning changes. All have resisted and have maintained the integrity of this special zoning for South Merritt Island." Commissioner O'Brien advised Kim Hooper wrote, " The suburban character of South Tropical Trail has remained consistent without changes. This proposed zoning has the potential to change this and should be denied. REU zoning would permit too many horses in an area with neighbors. We can only assume that 50 or more horses could be quartered next door. What would be the environmental impact, particularly in terms of runoff into the Lagoon? The Indian River Lagoon is watched very closely by environmental groups who have demonstrated their willingness to employ the courts against governmental bodies they view as irresponsible." He stated the increased amount of animals on the property would have a detrimental effect on the Indian River. He read a portion of Ben Elliott's letter as follows: "A simple comparison of the true definitions of rural versus suburban clearly explains how the two zoning designations should be considered non-compatible. Suburban, a place adjacent to a city for residential use. Rural, of or pertaining to the country as distinguished from the city or town, rustic, of or pertaining to farming and agriculture." Commissioner O'Brien stated agriculture does not take place in this neighborhood or any place near it. He stated Lawandales Planning Affiliates submitted competent and substantial evidence that states in the rebuttal: "SEU is consistent on all properties on Tequesta south to Pineda Causeway. The change to REU would create a change in the character of the community of that corridor." He stated there are no designated rural agricultural areas in that part of the community; abutting properties do not have that zoning or close to it; the present animals have already created a nuisance; and to allow more would magnify and exacerbate the present problem. He stated Mr. Knobel's inability to control his animals have been evident; the apparent reason for this request is to legalize pending and present Code violations on property which has been unable to contain the animals, some of which are illegal to have on the property. Commissioner O'Brien stated the fecal deposits from the assortment of animals, especially the large animals counter the efforts made to improve water quality in the Indian River; this request would allow up to 60 horses; the present and consistent law is SEU zoning; there are rules in place to properly govern and protect abutting property owners; and the Board should uphold the law that was written for everyone. He stated he has always rejected spot zoning; REU would allow much smaller dwellings of 1,200 square feet; SEU requires 2,000-square foot minimum house size; and that is an important factor to keep in mind during the decision-making process. He stated the rezoning would be detrimental to the 37-year history of compatible zoning in the area; the Hoopers, Brownes, Shaffers, and others have already been adversely affected by the over abundance of wild and domestic animals and fowl; there is an abundance of evidence of loose animals affecting adjacent property owners and causing a nuisance; the odor and manure on private property having to be removed by property owners, the Ordinance calls for nuisances; and in this case the odor is a nuisance, so the rezoning should be denied. He stated he read something about peacocks; they are very noisy and cannot be contained; and they can be very destructive. Commissioner O'Brien stated after hearing competent and substantial evidence presented this evening, and the P&Z Board's unanimous denial of the request, he will move to deny this item. He stated the Board should not put further stress on the Indian River by being a party to a rezoning that would ultimately bring raw horse manure, duck droppings, and dog and goat manure in a concentrated form into the Indian River, as it has been trying to remove septic tank usage and reduce fecal coliform and other pollutants in the rivers.

Motion by Commissioner O'Brien, seconded by Commissioner Higgs, to deny Item 9 as recommended by the P&Z Board.

Chairman Higgs advised Ms. Lawandales brought her some information and pointed out aspects of the information in her package to her; that has been put in the record in Commissioner O'Brien's comments and the Commissioners' packets; the zoning request is inconsistent; and the Board should not change the zoning in that area.

Commissioner Scarborough stated he agrees with the zoning issue which would have a substantial change of the nature of the area, but a lot of the discussion pertained to the compatibility of the animals. He stated the zoning would be a fundamental change to the area and a deviation from the character that later Commissions may misinterpret and create a different kind of community.

Chairman Higgs called for a vote on the motion. Motion carried and ordered unanimously, with Commissioner Voltz being absent from the room.

Commissioner Voltz advised she met with Ms. Lawandales about this issue and also spoke to Roger Dobson.

Item 10. (Z0009202) Vi Van Nguyen's request for CUP for marina in BU-2 zoning classification on 1.5 acres located on the east side of South Banana River Drive, south of SR 520, which was recommended for approval contingent upon permits being obtained from all governing State and County agencies.

Kathryn Brashear, representing the applicant, advised she found the property for Mr. Nguyen seven years ago; it was Captain Ed's old seafood processing plant; and presented an aerial taken four years ago to help the Board understand the uniqueness of the property. She stated Mr. Nguyen does not want to put in a marina; he is caught in a "Catch 22" where he bought a property that was used for 25 years as a seafood processing plant; he now uses it as a crab operation; and he converted the processing plant into a 200-seat restaurant. She stated boats come from the river and stop for dinner at the restaurant. She stated in January, 2000, Mr. Nguyen signed a lease with a person to rent jet skis from the property; the lady was issued an occupational license to do that; and Mr. Nguyen was not aware there would be problems with rental of jet skis in BU-2 on the water. Ms. Brashear advised the Department of Environmental Regulation got involved; Mr. C. Moon came to the property and stated they were in violation for rip-rap, etc. that Mr. Nguyen had put on the property after Hurricane Floyd to protect the property; she had two meetings with Department of Environmental Regulation who discovered that Captain Ed built the property 31 feet over the river 25 years ago; and they were grandfathered in to a certain point; but when the property went into federal bankruptcy and foreclosure action, part of the grandfathering went away according to Mr. Enos. She stated she went to Mr. Enos and asked how they could resolve the problem; he said they could ask for a CUP to use the site for marina-type activities; Mr. Nguyen has three crab boats that come and go daily, and are parked at the property; and he has a 55-foot fishing boat that goes out and comes in and parks at the property. She stated Mr. Nguyen has four State licenses for wholesale, retail, crabbing, and clamming; he has been doing it for seven years; but because of the jet ski rental they found out that they cannot do that type of activity in BU-2 and have to have a CUP for marina-type activities. Ms. Brashear advised the Department of Environmental Regulation said Mr. Nguyen had to get a $1,700 seagrass survey; Mr. Nguyen inquired about spending the money for the survey and having the County turn him down; and she could not give him a guarantee that he would get the CUP. She stated he would have to spend $1,500 on an underwater survey and $1,800 on engineering of docks; what he is asking for from the Board is a CUP to do what he has been doing and to do marina-type activities. She stated the Land Development Regulations for marinas say one space for every two slips; that is the parking design she had designed to show how the parking lays out; they have 88 spots for parking; and in order to do what Mr. Nguyen has on the property today with the restaurant, crab operation, and housing with several apartments on the property, the parking is sufficient for that and additional five slips. She stated she found out the problem with the parking because Mr. Enos referred her to speak with Jim Statlick from Land Development; and he spent a lot of time with her trying to resolve the problem so they could come to a conclusion; he pointed out that they do not have parking to put marina slips out there; so they are limited by all the different agencies from all the different governmental entities for what can be done on that property. Ms. Brashear stated historically the property has been used as a seafood processing plant with boats coming in and going out; Ed Griffis dredged it 25 years ago to 25 feet; it is now silted in to about 10 feet; and they have no seagrasses in the majority of the property and are not disturbing any of the habitats. She stated they are willing to do the things that Department of Environmental Regulation and other agencies require; but if Mr. Nguyen goes through all of that and spends all that money and come to the Board and is denied, he has a problem with that. She requested approval of a CUP with a caveat or some language that Mr. Nguyen has to get the different permits, parking spaces, etc.

Sandra Clinger, representing Save The Manatee Club, advised the Club was involved in litigation on a property immediately south of the subject property because of its location in an aquatic preserve and the presence of submerged resources; that project did have resource protection areas 1 and 2 which are the highest designations in the aquatic preserve for protection of resources; so she is concerned that an assessment has not been done on the subject project. She stated the Board cannot ensure that resources are not present until they have been looked at; by the GIS data, it appears there are seagrasses or that seagrasses are likely to occur in that area; and that is an issue of concern for the Club. Ms. Clinger advised the project also occurs in the Banana River; they have talked endlessly about the importance of the Banana River for manatees; there are no boat speed zones adjacent to the property yet; and they will see what happens when the State comes here in October to address potential impacts. She stated there have been four watercraft-related mortalities in the vicinity of this project since 1995; they are concerned about increasing boating activity in that area; and the Club opposes issuance of a CUP at this time until more information can be gained on the presence of submerged resources. She stated there have been no boat facility permitted in resource protection areas 1 or 2 ever; and if the Board moves forward with this project and that resource is there, it will be setting a precedent; so it needs to be sure that is not going to happen.

Commissioner Scarborough advised it was approved unanimously by the LPA contingent upon the permits being obtained from all the governmental agencies; and Ms. Clinger is saying the Board should let that occur first. Ms. Clinger stated that is consistent with what the Board has said in discussions of the manatee protection plan as the wish of how to proceed in the future with CUP's to be sure that the federal and state agencies' requirements have been satisfied. She stated there is a cost associated with permitting; it is often quite high for people to get permits; but they have to ensure that the resources are being protected and that is the reason the costs are there and so that the governing board can make decisions based on good information. She noted right now the Board does not have that information.

Ms. Brashear stated she was in Brian Toland's office three weeks ago and said the Department of Environmental Regulation told her to contact the manatee lady; and inquired if Ms. Clinger could tell her who that lady is because she needs to talk to her and get her involved in this project. She stated Mr. Toland said nothing to her before; she is very upset about that because if she and the manatee lady were able to get together, they could find out the problems. She stated all Department of Environmental Regulation said to her was to meet with the manatee lady; she had no name so she went to the Natural Resources Department and met with Brian Toland; in her packet is a copy of the aerials of the manatee sightings; and she requested copies of the studies so she could find out if they flew over once or seven days in a row then positioned the manatees in different locations on different days so she would have viable information to talk about before the Board. She stated Mr. Nguyen's taxes went from $4,800 to $11,000 when he obtained a certificate of occupancy for the restaurant; there are 15 to 22 boats that come and tie up together so they can walk over them to come to the restaurant; and she told Mr. Enos all they are asking for is the same thing that Gatsby's Dockside had. She stated they do not have a problem with a no wake zone or protecting the wildlife, as Mr. Nguyen's business depends upon the health of the river and the animals in the river.

Commissioner Carlson advised her staff contacted Jim Egan, Director of Marine Resource Council, who concurred with what Ms. Clinger had to say.

Commissioner Voltz suggested tabling the Item so the applicant and manatee club can get together. Commissioner Carlson suggested tabling it until after the October meeting to find out if there are any additional details they need to know before going forward with anything like this project; and that will give the applicant and Ms. Clinger or whoever Ms. Brashear chooses to meet with additional time to address some of the issues.

Commissioner O'Brien advised the P&Z Board approved it contingent upon permits being obtained from all governmental agencies on the State and County level; that vote was unanimous; Section 62-1901 says, "If the Board finds it appropriate to approve the CUP, it should be subject to staff's determination of compliance with the policies of the Comprehensive Plan and the issuance of permit approvals by Department of Environmental Regulation and U.S. Corps of Engineers"; so approval by the Board tonight does not open the floodgates, it just says go get your permits. He stated the traffic trips are consistent and went down from 243 to approximately 40; and the location meets the criteria of BU-2 zoning adjacent to the lagoon for water dependent uses. He stated fish, shellfish, wildlife production, recreation, water-dependent industry and utilities, marinas and navigation shall have the highest priority; and water enhanced uses such as restaurants and tourist attractions are the next highest priority uses. Commissioner O'Brien advised Ms. Clinger said there are no manatee speed zones in the area right now; in fact there are no zones in that area whatsoever; that may change in the future, but again it may not; and other than getting his permits from Department of Environmental Regulation, Corps of Engineers, and others, all other aspects of the project meet the conditions, is compatible with surrounding properties that are all BU-2, and is consistent with the Comprehensive Plan. He stated no where in other sections are found serious things that came before the Board in this review, so he will move to approve the item based upon it being compatible and consistent with zoning and upon the Ordinance that states subject to staff's determination of compliance with the policies of the Comprehensive Plan and issuance of permit approvals by the Department of Environmental Regulation and U.S. Army Corps of Engineers, and contingent upon permits being obtained from all State and County agencies as recommended by the P&Z Board.

Motion by Commissioner O'Brien, to approve Item 10, subject to it being compatible and consistent with zoning, subject to staff's determination of compliance with the policies of the Comprehensive Plan and issuance of permit approvals by Department of Environmental Regulation and the U.S. Army Corps of Engineers, and contingent upon permits being obtained from all State and County agencies as recommended by the P&Z Board.

Commissioner Carlson advised staff's comments state, "Based upon the information submitted by the applicant, staff is unable to confirm that the application complies with Coastal Management Element Policies 5.3 through 5.7, Section 62-1937 regarding marinas, or Section 62-1901 governing conditional use permits. In particular, environmental issues, onsite traffic circulation, and impacts upon onsite neighboring residential uses to the south need to be more thoroughly addressed." She stated so it is not consistent, and not enough information has come forward to show that it is consistent. Commissioner O'Brien stated staff is unable to confirm, but it does not say the project is not compatible or that the application does not comply; and the impact on residential uses to the south is addressed during the permitting process and not by the Board.

Commissioner Scarborough advised there is a lot going on with marina sitings; there was a warning letter from Department of Environmental Regulation on some other activities; the Board was dealing with marina sitings as part of some other discussions; and in April it was asked not to participate. He stated at this juncture, doing anything tonight would not benefit the applicant because the real hurdles are out there; and after those hurdles are handled the Board would have a clear and better definition of where it needs to go. He stated to step out in front of that would give the applicant false assurances of certain things happening which would be inappropriate because those things are beyond the Board's control; so he would prefer to deny it, and let them further define and clarify the item at the State level.

Chairman Higgs advised there were two items in staff's comments and a letter from Merritt Island Redevelopment Agency (MIRA); staff's comments state, "The submittals received from the applicant do not address these requirements referring to Policies 5.3, 5.4 and 5.5 of the Coastal Management Element." She stated it does not address those requirements that the Board has to deal with, such as water quality, biological resources, and productive habitats on site and adjacent to the proposed marina. She stated the Board does not have that information which is part of the Comprehensive Plan requirement; and Doug Robertson's letter of September 8, 2000, consultant for MIRA, as well as a planner who has been before the Board numerous times in the roll of providing expert testimony, states, "In light of the Brevard County planning staff's finding, the MIRA Board has recommended the item be tabled until additional information regarding marina design and location is provided." She stated the applicant has not provided adequate information addressing potential impacts upon water quality, biological resources, productive habitats, parking, ingress/egress, and compatibility with properties adjacent to the proposed marina.

Commissioner O'Brien advised the final statement in the package says, "If the Board finds it appropriate to approve this CUP it should be subject to determination of compliance with the policies of the Comprehensive Plan and the issuance of permit approvals by the Department of Environmental Regulation and U.S. Army Corps of Engineers." He stated the Board is being told what its Code states; that is that it can approve this depending upon those permits; and if the applicant wants to go forward and fight for the permits, so be it; but it should not be for this Board to say go get the permits first and then come back so the Board can say no. He stated that would not be appropriate either.

Chairman Higgs stated she would be willing to review all the conditions that are part of the Comprehensive Plan and have all the data presented to her so she can review it; it has to be consistent and comply with the Comprehensive Plan; and she does not have that information available to her in order to approve this item tonight. She stated she understands the concern about waiting for all agencies, but without the information she cannot move forward and approve the item. Commissioner O'Brien stated he understands that, and perhaps the applicant can accommodate that request, so tabling the item is in order to allow the information to be provided and digested.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to table Item 10 until November 2, 2000 Board of County Commissioners meeting.

Commissioner O'Brien stated it will give the applicant sufficient time to get with staff, seek counsel if necessary, and discuss the project with professionals because he is in a very complicated situation among the federal, State and County agencies plus other groups that could adversely impact decisions of the Board and other agencies.

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

Commissioner Scarborough advised when the manatee protection plan was brought back, the most dynamic moving force in the whole discussion was marina sitings; the State sent a letter removing the County from marina sitings; there are innumerable issues that are going to have to be resolved before the Board can do anything; and the applicant is years away from a conclusive answer. He stated he would have trouble giving the application approval and having the applicant think he received anything because this is something that many people are struggling with today; and marinas are not being approved. Chairman Higgs requested Ms. Brashear check with staff to get her questions answered.

The meeting recessed at 7:10 p.m., and reconvened at 7:22 p.m.

Item 11. (Z0009301) James H. and Annette T. Watkins' request for change from GU to RU-1-9 with BDP limiting density to two units only on 1.75 acres located on the west side of Highway A1A, south of Sandy Shoes Drive, which was recommended for approval by the P&Z Board with a BDP limiting density to two units only.

Susan Wells advised she owns property on Fifth Avenue and intends to move there when the house is renovated; the rezoning matters to her because she will be able to see it from the house she plans to retire in; and she feels it should be rezoned only for one single-family residence. She stated it sounds like a lot of property at 1.75 acres, but it is very narrow; and advised of the development of the high-rise at Outdoor Resorts, the pharmacist next door that has to keep her access cleared from underbrush, the Marland development which required a lot of fill, and Sandy Shoes West with two-story homes, ten feet between each home, and densely built. She stated two units is too dense; it is a sensitive area and known as scrub jay and gopher tortoise habitat; and there is very little scrub left. She stated it would have to be two tall houses because of the narrow width and it would destroy the privacy of people who live near by. She stated one house on the river is all that should be permitted; and requested the Board help to preserve the land she loves. She noted she takes care of Coconut Point Park and wants to devote her life to protecting as much as she can to make it a better place to live for everyone.

Chairman Higgs advised Ms. Wells volunteers to take care of the park near her home and preserve the native vegetation; and the Board appreciates that; the Comprehensive Plan provides a density of two units per acre, so this proposal is not as dense as it could be; it has RU-1-9 on both sides; and the applicant submitted a binding development plan that would reduce the density to two units total; and the RU-1-9 is necessary because of the width of the property. She stated while she shares Ms. Wells' concerns about protecting the environment and preserving the native vegetation, particularly the scrub, the zoning recommended along with the binding development plan is appropriate for the area.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to approve Item 11 with a binding development plan limiting density to two units only, as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 12. (Z0009401) Harold James Toy's request for CUP for alcoholic beverages on-premise consumption in BU-1 zoning classification on 2.77 acres located on the west side of Highway A1A, south of Berkeley Street, which was recommended for approval by the P&Z Board.

Commissioner Carlson requested Mr. Enos give the Board the history of the property. Mr. Enos advised the existing license that was on the property in 1999 was revoked; the nonconforming status of the previous land use was lost based on that revocation; and that is why the current owner is requesting a new CUP to reestablish the alcohol use. He stated SUP's go back many years; the most recent one was issued in 1970; they have been removed from the Code since 1973; and that is when the use became nonconforming, but continued all those years until 1999.

Howard Toy advised the previous owner lost his beer and wine license in July, 1999 when there was a sting operation and he served a minor without closely checking his drivers license; and in lieu of paying a large fine, he let them revoke his license. He stated he was not aware of that at the time he purchased the property, and that is why he had to apply for a CUP and has met all the conditions.

Commissioner Carlson inquired if the permit is for beer and wine only; with Mr. Toy responding yes, and his business will be open from 10:00 a.m. to 6:00 p.m., so it is not a drinking establishment.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to approve Item 12, subject to the CUP for alcoholic beverages on-premise consumption being for beer and wine only and as accessory use to the restaurant. Motion carried and ordered unanimously.

Item 13. (Z0009402) Temple Beth Sholom, Inc.'s request for change from RU-2-10 with CUP for church to BU-1 and removal of the CUP for a church on 13.8 acres located on the east side of Wickham Road, north of Pineda Causeway, which was recommended for approval by the P&Z Board with a BDP limiting use to a church and school only.

Attorney Jack Kirschenbaum, representing the applicant, advised the rezoning is to allow continuation of the synagogue and establishment of a K-6 school; and in order to do that, they need BU-1 zoning classification. He stated the report was favorable; and the BU-1 is not an expansion, but an infill.

Commissioner Scarborough advised of a letter from St. Katherine's Greek Orthodox Church saying they do not have a problem with a school and religious purposes, but the zoning; and inquired if there could be restrictions on the use of the property; with Mr. Kirschenbaum responding there may be the possibility of a binding development plan. Commissioner Carlson stated the P&Z Board approved it subject to a BDP for church and school only.

John Hadjilogio of St. Katherine's Church and Father Korkos advised they have a good working relationship and would like to continue that relationship provided the use is only for a church and school.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to approve Item 13 as recommended by the P&Z Board, with BDP limiting use to church and school only. Motion carried and ordered unanimously.

Item 14. (Z0009403) Portofino Development Corporation, William A. and Barbara A. Elia, Sally A. Prezioso, Ronald W. and Mary C. Salvary, Carol L. Fox, Rebecca E. Stiles, John and Bernardine Riener, Ralph A. and Martha Copeland, Sheldon and Sandra D. Coe, William G. and Jo Anne Scruggs, James R. and Pamela C. Schultheis, and Robert and Diane Holman's request for change from PUD (Suntree) to PUD (Portofino Bay) on 12.19 acres located on the east side of U.S. 1, north of the eastern terminus of Allen Hill Avenue, which was recommended for approval by the P&Z Board.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to approve Item 14 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 15. (0009404) Senior Care of Brevard County, Inc.'s request for change from AU to RU-2-12 and CUP for adult congregate living facility on 21.252 acres located on the north side of SR 520, west of I-95, which was recommended for approval by the P&Z Board.

Motion by Commissioner Carlson, seconded by Commissioner O'Brien, to approve Item 15 as recommended by the P&Z Board.

Commissioner Scarborough asked Mr. Enos to explain the RU-2-6 classification; with Mr. Enos advising they can still receive the total number of units they are requesting with RU-2-6 and the CUP; RU-2-12 can be considered, but the density in the vicinity seems to be no more than six units per acre; so the Board may want to ask the applicant if he would have a problem with RU-2-6 which can accommodate the current application.

Massimo Bosso, Professional Registered Engineer, representing Senior Care of Brevard County, Inc., stated they may have future plans to build additional facilities on the south end on the sides of the entrance, but nothing is being proposed at this time; and with RU-2-6, they may not be able to do that. He explained the site plan; and stated it has been submitted for approval to the County, St. Johns River Water Management District, and Department of Transportation. He noted on the east side of the property are residential lots of three units per acre.

Commissioner Carlson inquired about the number of units on the current plan; with Mr. Bosso responding on the north area there will be 67 single-family units. Commissioner Carlson inquired if that is all that is planned right now; with Mr. Bosso responding that is correct.

Chairman Higgs advised there are 21 acres requested for RU-2-12, so they could build 255 units. Mr. Bosso stated they are no where near that many units. Commissioner Carlson inquired what is the cap on RU-2-6; with Mr. Enos responding approximately 130 units. Commissioner Carlson inquired if they perceive to have more than 130 units; with Mr. Bosso responding those areas may be developed with buildings for assisted living and not single-family units; and that may or may not happen, but it will not be independent facilities. Mr. Enos advised if RU-2-12 is approved, and in the future they wish to build additional units, they would have to come back to amend the CUP because the site plan is binding on the development. Mr. Bosso inquired if they remove RU-2-12 and accept RU-2-6, could they build the same site plan; with Mr. Enos responding yes. Chairman Higgs questioned the compatibility of RU-2-12 or RU-2-6 because the map shows the area as RU-1-9 and AU. Mr. Bosso stated it is all residential, and on the east side it is 3.5 units per acre. He stated on the north side is TR-1 which is multifamily mobile homes; and RU-2-6 would continue residential use on the north and east sides. He stated on the west side is AU; and they are not going any farther than that, and are only rezoning 21 acres. he stated they meet all the criteria of Section 62-1901(c)1. Chairman Higgs inquired how do they meet the criteria when there are no multifamily uses around the property; with Mr. Bosso responding on the east side is single-family residential with 3.5 units per acre. He stated the owner wants to keep the ownership of the units and does not want to sell each unit; RU-2-12 or RU-2-6 was discussed with staff; and they suggested applying for RU-2-12, so they submitted that application. He stated he can discuss the issues of noise, glare, etc. that they clearly meet; and he can compare this site plan with another site plan to show how they meet all the requirements.

Commissioner Carlson advised what they are requesting right now could go under RU-1-9, which would give them 84 units; with Mr. Enos responding they could not apply for the CUP and would need an RU-2 classification for an adult congregate facility.

Commissioner Voltz inquired if they were all single-family homes; with Mr. Bosso responding the ones on the north side will be single-family homes for independent living; and the main building across from the entrance will be an assisted living facility; and that is what they are requesting the CUP for.

Commissioner O'Brien inquired how big will the units be; with Mr. Bosso responding 750 square feet. Chairman Higgs inquired how many units would they get under RU-1-9 and at what size; with Mr. Enos responding the minimum lot size for RU-1-9 is 6,600 square feet; and assuming they have water, sewer, and no site restraints, they could get five or six units per acre at the most. Mr. Bosso stated there is water and sewer available.

Commissioner Carlson inquired if RU-2-4 would be equivalent to RU-1-9 and still allow the CUP. Chairman Higgs stated the house size would be 900 square feet minimum.

Commissioner O'Brien stated if he lived in a neighborhood that abutted the property and thought someone was going to build 750-square foot homes next to his property, he would not be happy; but his real concern is the facility will house a lot of senior citizens who need assistance to get on with their daily lives; however, the location is rural and they would have to drive eight miles down SR 524 to a supermarket. He stated if senior citizens live in the facility, it may be because of health reasons; so it should be built closer to the amenities they need such as food and medical care. Mr. Bosso stated if they live in the independent facility, they can drive anywhere; and if they cannot buy food or cook, they can move into the assisted living facility. He stated they meet all the setback requirements, which are greater than the minimum requirements; and they will plant over 400 trees on the property. Commissioner O'Brien inquired if people purchase the houses; with Mr. Bosso responding they pay a fee to the Association to live in the house; they buy the house temporarily and can do what they want with it; but when they get into a condition where they cannot live there any more, they will sell it back to the Association. Commissioner O'Brien inquired what is the value per unit; with Mr. Bosso responding he does not know, but it is intended to be rustic construction.

Commissioner Voltz advised of a similar facility in West Melbourne, noting the individual units are very expensive because they have assurance that they can go to the assisted living facility in the future. She stated many elderly persons today are not assured of that; and this facility contributes to the issues the Board discussed in planning sessions of taking care of elderly people. She noted it is a great project and really needed.

Commissioner O'Brien stated he is not opposed to the facilities, but have concerns about the cost of the units, the value after homestead exemption, and the demand for services the operation may create for fire, police, ambulance, hospitals, etc. Commissioner Voltz stated the assisted living facility up front should take care of those issues.

Chairman Higgs stated the property is located west of SR 520; there is RU-1-9 on one side and the rest is zoned AU; so her concerns are zoning and compatibility. She stated she sees no attempt at buffering; she agrees the facilities are much needed; but she questions whether it should be on SR 520 west of I-95 where there are no related services; and inquired if that is what the Board wants to do which may increase urban sprawl, and is it an appropriate location that would create demand out of the urban core for services the Board is not in a position to provide. She stated perhaps there are ways to work the issues, but there are serious questions about the appropriateness of the location and the zoning.

Commissioner Scarborough stated the facilities are not cheap because of the collateral services provided; an elderly person can get a larger condominium at less cost, but in one of these units they have assurance that there is medical support, bus service, meals served, etc. and that is why a premium price is paid, not for the size of the unit, but because of the assurances. He stated he would not want the facility overly urbanized because it would dehumanize the experience for people who are moving into smaller units; so they need to keep it open enough and provide a quality institution.

Ann Pugh, Administrator for Senior Care of Brevard County, Inc., advised they currently have an adult day care facility off I-95 and SR 520 behind McDonald's; they serve 55 elderly clients and have a fleet of nine vehicles, four of which are wheelchair capable; and they travel over 5,000 miles a month serving adults from Titusville, Port St. John, Canaveral Groves, Viera, Suntree, Cocoa, Rockledge, and Merritt Island at their facility, so there is transportation in place. She stated they have a nursing staff as their State license requires nursing capabilities; and the prices for the two bedroom log cabins are scheduled to sell for $72,000, $67,000 and $62,000, depending on the location around the 3.5-acre lake.

Commissioner Carlson inquired if Ms. Pugh talked to the neighbors adjacent to the property to let them know what they were doing; with Ms. Pugh responding no, but she did talk to some of the businesses in the area. Commissioner Carlson stated she does not know what the homes are like next to the property, but more work is needed on this item; she has concerns about the compatibility with the neighborhood and going out too far; and inquired how far is the current day care from other appropriate facilities in case there is an emergency; with Ms. Pugh responding there is a fire rescue on SR 520, and Wuesthoff and Cape Canaveral Hospitals. Chairman Higgs inquired how far is the facility from Wuesthoff Hospital; with Ms. Pugh responding approximately six miles, but she is not a good judge of distance. Commissioner Carlson inquired why the site was chosen over sites that may be closer to town to accommodate the seniors; with Ms. Pugh responding because of the 21 acres. She stated they looked for months for property to build the continuing care community; it is a retirement

community; and they thought the site was perfect for it. She stated 20 acres next to their property to the west was purchased with plans to build a time-share facility with the same rustic setting of log cabins; there is a buffer with a moat and a high level of dirt that separates the community to the east of their property. Commissioner Carlson noted given the discussion, the item should be tabled to give Ms. Pugh an opportunity to meet with the neighbors and get their feelings in terms of potential buffering and compatibility issues.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to table Item 15 until November 2, 2000 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item 16. (Z0009501) Boykin Hotel Properties, L.C.'s request for CUP for additional building height in TU-1 zoning classification having CUP's for a sewer facility, bar/cocktail lounge, and tourist efficiencies, removing the CUP's for a sewer facility and tourist efficiencies, and retaining the CUP for a bar/cocktail lounge on 7.387 acres located on the east side of Highway A1A, north of North Court, which was recommended for approval by the P&Z Board for additional building height of 54 feet on the six-story building only. The applicant withdrew the CUP for additional building height of 132 feet.

Chairman Higgs advised there are two issues, the CUP request and the variance to the coastal construction control line request. Mr. Enos advised the variance request is scheduled later on the Agenda, but the Board can take them together if it desires. Chairman Higgs recommended taking the items together.

Rick Torpy, Attorney representing Boykin Hotel Properties, L.C., advised he provided the Board with the planning report in support of the CUP; and inquired if the Board has the variance application. Mr. Enos advised the variance application is provided under Item II.F., Request for Variance to Brevard County Coastal Setback Line, Re: Boykin Hotel Properties LP (Melbourne Beach Hilton). Mr. Torpy gave the Board a copy of the breezeway variance application, which was granted by the Board of Adjustment; and requested all three applications be considered part of the record. He stated Mr. Max Bosso is the engineer who provided the statements as part of the planning report for the CUP and variance applications, and Mr. Solomon, manager of the Hilton is here tonight. He advised the item was first presented to the Board in December, 1998 as part of a request to increase the size of the Hilton on A1A between the two Causeways; at that time they had to address the density issue; the parcel was subject to a Comprehensive Plan policy provision which restricted density to 12 units per acre; and the Board removed that policy to allow the density that exists on the property of 30 units per acre to prevail. He stated the existing hotel sits on several lots; his clients also own two lots to the north; those two lots are currently vacant, but could have been used to develop potentially a smaller two to three-story structure; but with the environmental and breezeway issues, they offered to dedicate those two parcels to the north as part of the overall site, precluding them from ever having a structure on them and increasing the breezeway. He stated everything they are requesting today, although they are variances from setbacks, breezeways, and height, are actually improvements of the overall site; the breezeway application was approved by the P&Z Board; and they added approximately 185 feet of additional breezeway to the site because the two lots to the north will not be built on. Mr. Torpy advised the existing tower to the north is 11 stories; it is approximately 144 feet; their proposal is not to do anything to the existing structure, but to build on top of the current lobby; they put a six-story tower in that location, and reconfigured the project they originally presented to the Board; and instead of going 66 feet for the tower, they only have to go 54 feet because the plan is to have the building on top of the existing structure. He stated when the building was built in 1983, the current coastal construction setback line did not exist as it does today; when the Board established that line, it was two or three feet from the structure; and the best they could do with putting the tower on top of the existing structure was to bring it back 15 feet, so they are requesting a 10-foot variance from the setback line. Mr. Torpy advised the benefits are they are increasing the breezeway; they will remove an existing slab from an old structure as long as they can obtain the proper permits to remove it; they agree to renourish and replenish the dune line to the extent necessary, and worked with Debbie Coles on that issue; and they agree to take over maintenance of the beach access to the north and to give another beach access to the south. He stated they are requesting a 54-foot CUP approval and 10-foot variance approval for the ability to improve the structure and enhance the site. He noted the 15 feet is further back than the existing structure.

Chairman Higgs inquired if Mr. Torpy is requesting 54 feet on top of the 35 feet; with Mr. Torpy responding no, the total of 54 feet which is about 19.6-foot increase in height. Mr. Torpy advised of an objection at the P&Z meeting by an individual who did not identify his client who stated the parcels were part of the site plan; but that objection was withdrawn the next day because he was incorrect; and it is not part of the site plan, but they are adding it to the site plan.

Commissioner Carlson inquired if the conditions they agreed to are in writing; with Mr. Torpy responding they are part of the minutes; this is the ninth public hearing on this item; and they have agreed at each meeting to incorporate those conditions in a binding developer's agreement. He stated there are a few things that have to be worked out; Parks and Recreation Department is not sure how they want to do the beach access to the south, so that is open and they will do whatever the staff wants as part of the BDP that will be done prior to permitting.

Commissioner Voltz stated the Board does not have a list of the conditions; with Mr. Torpy responding he will put it on the record that: (1) they agree to take over and maintain the existing County beach access to the north; (2) they will remove the slab in the northeast corner; (3) they will restore the dune with native vegetation; (4) they will dedicate another beach crossover on the south boundary line as specified by County staff when and if they want to do that; and (5) they added the two lots to the north to the site plan and agree there will be no structure on them, effectively increasing the total breezeway of the site. Chairman Higgs inquired if the parking lot is a structure; with Mr. Torpy responding there will be a parking lot there, but no height to obstruct the view of the beach; and it meets the definition of breezeway. He stated if the Board defines a parking lot as a structure, he does not want to misrepresent it because there will be parking there but no building. Commissioner Voltz inquired if they will not put more in the variance and just on top of the existing structure; with Mr. Torpy responding he cannot say exactly because he does not have the exact dimensions, but the engineers said that is the minimum they can do and still go on top of the structure. He stated the only other option is to go further south and change the whole configuration of the building; but to maximize the breezeway the engineers configured the tower on the existing lobby. Mr. Torpy stated they also agree to renourish the dune line as necessary.

Commissioner Scarborough inquired if the area to the north is for public access; with Mr. Torpy responding yes, and they agree to take it and maintain it in perpetuity for the County; it provides access from A1A; and they are not changing the configuration of that. Commissioner Scarborough inquired if they are creating public access on their property; with Mr. Torpy responding they are on the south side and will allow public parking in their parking lot to access the beach on that side. Commissioner Scarborough inquired how wide is the area to the south; with Mr. Torpy responding he believes they agreed to up to 25 feet, but the intent is whatever is necessary for adequate beach crossover; and they need to discuss that with County staff.

Chairman Higgs inquired if Mr. Torpy can be more specific about how much parking they will put in there; with Mr. Torpy responding the intention of his client, and what they conceptualize is to have 40 spots which they will allow the public to use to gain access to the beach if they need it. He stated people walk from the neighborhood across the street to the beach. He advised they sent out letters to people within 1,000 feet of the property and held meetings to talk about what they wanted; they wanted beach access; the condominium to the south is having problems with residents cutting through their parking lot to the beach, where may be where the dune blowout is; so they are trying to remedy everyone's issues and anticipate it will be used mostly by the people who live in the neighborhood across the street, but if they want to park there, they would be able to do that. He noted if County staff prefers they provide access from A1A, they will do that, but that has not been recommended.

Commissioner Carlson inquired if there will be a path from the parking lot to the crossover; with Mr. Torpy responding the parking will be right at the access point and contiguous to the parking lot. Commissioner Carlson inquired if they have to go back to A1A and come into the parking lot; with Mr. Torpy responding no, from the parking lot they can go right to the beach. Mr. Torpy stated the initial concept did not include parking, but there have been some conversations about how it would be done; and they have agreed to work with County staff on a beach access that will work.

Commissioner Scarborough inquired if Mr. Torpy said they would allow public parking in the Hotel's parking lot to the south; with Mr. Torpy responding that is correct. Commissioner Scarborough inquired if the slots would be designated for public parking; with Mr. Torpy responding they were not asked to do that, but the issue of wheelchair accessibility was raised by a resident; and it will be ADA compliant. Commissioner Scarborough inquired if they will take 40 slots of the parking lot and say anybody can park there to access the beach; with Mr. Torpy responding they will put signs up for public parking. Commissioner Carlson inquired if the posting of public parking on private property can be a condition; with Mr. Torpy responding yes.

Chairman Higgs inquired if that is all the conditions; with Mr. Torpy responding there will be additional vegetation put in along A1A that will be worked out with staff; and he has not seen the plans yet, but staff requested it and his client agreed to do it.

Chairman Higgs inquired about the height of the structures to the north and south; with Mr. Enos responding to the south is a three-story structure and to the north is the Radisson Hotel which is 15 stories. Chairman Higgs inquired if the request is for five stories; with Mr. Torpy responding it will total six stories.

Mr. Torpy advised there is an existing nightclub that has been the source of great controversy over the years; they are removing that nightclub and replacing it with a restaurant and meeting facilities. Mr. Enos inquired if that is also a condition; with Mr. Torpy responding they will make it one if the County wants it. Chairman Higgs inquired if there is a bar on the property; with Mr. Torpy responding they have a CUP for liquor because there is a small bar inside the hotel that service the guests. Chairman Higgs inquired how is that distinguished from a nightclub; with Mr. Torpy responding the existing bar is in the lobby and is very small, while the nightclub was a separate facility walled off from the hotel which will be taken out. Mr. Solomon stated there will be no live entertainment in the bar in the lobby. Commissioner Scarborough stated he would not want to stop them from having a piano in the bar, and would prefer to say no nightclub and stop there. Mr. Torpy stated they will not advertise ladies night to draw a crowd of people, which traditionally nightclubs do. He stated if they wanted to put in a nightclub, they would need a permit and go through zoning and meet parking requirements, etc. Commissioner Voltz suggested no entertainment for the general public. Commissioner Scarborough suggested no amplified music. Commissioner O'Brien stated amplified music includes a radio at the pool; there is a generally accepted perception of a nightclub; and if they say no nightclub, that should be sufficient. Commissioner Voltz inquired if there is language that could be used; with Ms. Bentley responding she does not have a good definition of nightclub, but the BDP could provide that the nightclub will be removed and there would be no outside solicitation of patrons. Mr. Torpy stated they may want to have weddings; and they could include in the BDP that the existing nightclub would be removed and not replaced without Board approval.

Chairman Higgs stated her concern is the specificity; they are dealing with a number of issues and stipulations; and if the County is getting those conditions, they should be nailed down so they know what they are dealing with. She stated they say no structure on the north side if a structure is a building, but there is a parking lot. She stated all the stipulations should be in writing so the Board will know what it is voting on. Commissioner Voltz stated it is on the record; there were nine different items--maintenance of the north access, removal of slab, restoration of dune with native vegetation, dedication of beach access and crossover to the south, increased breezeway with two parcels to the north having no buildings, 54-foot height or 19.6-foot variance, 10-foot setback variance, public parking notification for the south access, and removal of existing night club not to be replaced without Board approval.

Commissioner Voltz inquired how many square feet is the current bar facility; with Mr. Enos responding there may be a seating limitation in the bar. Commissioner Voltz suggested a condition that the seating and square footage of the existing bar cannot be increased; with Mr. Enos responding that could be a condition without knowing what it is, and staff can find that later. Commissioner Voltz suggested maintaining current square footage of existing bar and existing seating capacity. Mr. Torpy responded that is fine. Ms. Bentley stated that can be determined from the construction plans.

Debbie Coles inquired if Mr. Torpy offered the area next to the slab that is blown out as the area they will renourish rather than the entire shoreline; with Mr. Torpy responding yes.

Chairman Higgs inquired what is meant by renourish; with Mr. Torpy responding whatever County staff tells them they need to do. Ms. Coles noted it would require four to five feet of suitable soils in that area and appropriate native vegetation. Commissioner Voltz suggested adding the condition that they restore the dunes as required by the Office of Natural Resources Management.

Motion by Commissioner Voltz, seconded by Commissioner Scarborough, to approve Item 16 for additional building height of 54 feet on the six story building only, subject to a binding development plan setting forth all the conditions mentioned above and agreed to by the applicant's representative; and grant a 10-foot variance from the Coastal Construction Control Line.

Commissioner O'Brien stated he cannot support the motion because of the additional height, as people do not want the beaches skylined by tall buildings. Commissioner Voltz stated she agrees, but it is not the same building that has 11 stories, so it is not really additional height.

Chairman Higgs stated she will vote against it because of the specificity; it is a big project and to do it right the Board needs those conditions in writing, because she has seen instances where it thought it agreed to something that it did not agree to. She stated in Suntree the Board said it would have a buffer, and the buffer later became part of the lots; and this may be fine, but she would like to review, analyze, and understand it before she votes for it.

Commissioner Scarborough suggested tabling the item. Commissioner Voltz suggested approving it and bringing back the BDP for approval. Commissioner Carlson supported tabling the item. Mr. Torpy stated he has no problem with tabling and understands the concerns; they have no intentions of switching anything; but he will prepare the BDP for the next meeting. He inquired if it could be put on the Consent Agenda to avoid going through a similar session like today; with Ms. Bentley responding zoning items cannot be put on the Consent Agenda.

Motion by Commissioner Voltz, seconded by Commissioner Scarborough, to table Item 16 until the November 2, 2000 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item 17. (Z0009502) Louis R. and Gladys Medina and Luis Medina's request for change from RU-1-13 to RP on 0.63 acre located on the west side of Minton Road, south of Sharon Drive, which was recommended for approval by the P&Z Board.

Motion by Commissioner Voltz, seconded by Commissioner Scarborough, to approve Item 17 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 18. Gleason Brothers and Company. Tabled to December 7, 2000 earlier in the meeting.

Item 19. (Z0008202) Artemis Georges' request for CUP for group home Level III in RU-2-10 zoning classification on 0.17 acre located on the north side of Kathi-Kim Street, east of Range Road, which was tabled by the P&Z Board on August 7, 2000, and recommended for denial on September 11, 2000, as the applicant was not present.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to deny Item 19 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 20. (Z0008501) CPO Development, Inc.'s request for CUP for additional building height in RU-2-15 zoning classification on 2.10 acres located on the east side of A1A, south of Eau Gallie Boulevard, which was tabled by the P&Z Board on August 7, 2000, and withdrawn by the applicant.

The Board accepted withdrawal of Item 20.

PUBLIC HEARING, RE: NORTH MERRITT ISLAND DEPENDENT SPECIAL DISTRICT BOARD RECOMMENDATIONS OF SEPTEMBER 14, 2000

Chairman Higgs called for the public hearing to consider the recommendation of the North Merritt Island Dependent Special District Board, made at its public hearing on September 14, 2000, as follows:

Item 1. (NMI00901) Brevard County Board of County Commissioners, on its own motion, authorized administrative rezoning of property owned by Ronald E. Dimenna, from SR with CUP for security trailer to RR-1 and removal of the CUP on 22.05 acres located on the south side of North Tropical Trail, west of SR 3, which was recommended for approval by the Special District Board.

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

Upon motion and vote, the meeting adjourned at 8:47 p.m.

ATTEST:

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

SANDY CRAWFORD, CLERK
(S E A L)