The Board of County Commissioners of Brevard County, Florida, met in regular session on March 2, 2000, at 5:37 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 Managers Don Lusk and Peggy Busacca, and Assistant County Attorneys Eden Bentley and Kim Brautigam.

The Invocation was given by Commissioner Nancy Higgs.

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

REPORT, RE: SETTLEMENT OF MURBE CASE

Assistant County Manager Don Lusk advised the Board approved placement of $14,301 in the Court Registry to settle the Murbe Rehabilitation claim initiated by Karel Builders and to clear the title on the Murbe home; Karel has offered to settle the litigation against Ms. Murbe for $10,000; and requested the Board accept the offer, and authorize the County Manager to execute documents pending approval by the County Attorney to settle the case.

Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to authorize the County Manager to utilize funds established in the Court Registry to settle the Murbe Rehabilitation litigation initiated by G. L. Karel Builders, and to execute all documents involved with the claim pending approval by the County Attorney. Motion carried and ordered; Commissioner Voltz voted nay.

Commissioner Voltz stated she does not like doing it, but it is probably the best way to go.

REPORT, RE: RESCHEDULING OF EDC WORKSHOP

Assistant County Manager Peggy Busacca recommended the EDC Workshop be rescheduled from March 23, 2000 to April 13, 2000, as the EDC will not be available in March.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to reschedule the EDC Workshop from March 23, 2000 to April 13, 2000. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: VACATING PUBLIC UTILITY AND DRAINAGE EASEMENTS IN WINDOVER FARMS OF MELBOURNE - GARY AND KATHY RIEF

Chairman Higgs called for the public hearing to consider a resolution vacating public utility and drainage easements in Windover Farms of Melbourne as petitioned by Gary and Kathy Rief.

There being no objections heard, motion was made by Commissioner Carlson, seconded by Commissioner O'Brien, to adopt Resolution vacating public utility and drainage easements in Windover Farms of Melbourne as petitioned by Gary A. and Kathy A. Rief. Motion carried and ordered unanimously.

ANNOUNCEMENT, RE: ZONING PROCEDURES

Assistant County Attorney Eden Bentley advised this is a zoning hearing, and the Board has adopted a policy governing how the items will be heard. She stated the agenda lists the items by number; and those wishing to speak can fill out pink cards at the back of the room and reference the item number for each item they want to speak on. She stated the applicant will be given 15 minutes to speak, and can divide that time for a presentation and rebuttal after the other side speaks; other parties wishing to speak will have five minutes; and if additional time is needed, they may make a request to the Board for additional time. She stated comments are made to the Board and Chairman; if the Board has questions raised by a presentation, it will ask the questions; and if questions are directed to staff after the item has come to the Board, the Chairman will give the applicant two minutes maximum to rebut any questions raised during the discussion period. Ms. Bentley advised it is a quasi-judicial proceeding, which means that the public does not have the discretion it would have in a legislative-type proceeding. She stated the Board must have competent substantial evidence to base its decisions on; testimony of property owners or citizens in a particular neighborhood regarding traffic is not considered competent substantial evidence; topics involving professional expertise, such as traffic engineering, is something a layman cannot testify on, but he/she can testify about the character of the area, density, etc. She stated anyone making comments to the Board need to consider what area might require an expert and what area is within his or her knowledge as a lay person; the Board will need competent substantial evidence and needs to follow the Code requirements; and the public needs to be aware of those requirements when they come before the Board.

PUBLIC HEARING, RE: TABLED ITEMS FROM NOVEMBER 1, 1999 PLANNING AND ZONING MEETING

Chairman Higgs called for the public hearing to consider the recommendation of the Planning and Zoning Board, made at its public hearing on November 1, 1999, and tabled by the Board of County Commissioners on February 3, 2000, as follows:

Item 1. (Z9911501) Rosemary Fondong's request for Mixed Use District boundary expansion to 350 feet and change of classification from RU-2-10 with BSP to BU-1 and removal of the BSP on 2.45 acres located on the northwest corner of U.S. 192 and Gray Road. The LPA denied the MUD expansion; and the P&Z Board approved the BU-1 with a BDP, no access onto Gray Road, and applicant to meet with adjacent homeowners to resolve buffer issues.

Steve Harp and Chris Soave stated they met extensively over the last 30 days, as requested by the Board, and reviewed the development plans with some of the neighbors in Commissioner Voltz's office. He stated the presentation will show that they took into account some of the neighbors' concerns and came up with a plan that the Board can determine as smart growth for the area. He introduced Rochelle Lawandales; and noted she will make the presentation.

Rochelle Lawandales, owner of Lawandales Planning Affiliates, advised the Board was given a report entitled, "Rosemary Fondong Rezoning Request," prepared in support of the request to rezone property at U.S. 192 and Gray Road, marked Exhibit "A"; she will enter other exhibits into the record; and David Menzel gave the Board a copy of the site plan which will be Exhibit "C". She stated the applicant asked her to look at some of the issues raised; some of those issues have been resolved; and she hopes to resolve others that may still be on the table. She stated the area's development pattern is clearly commercial along U.S. 192; the depths of commercial range from 1,300 feet to 300 feet; and presented pictures to the Board of existing commercial development in the area. She stated the site is bordered on two sides by commercial to a depth of 300 feet; and some of the businesses are the Patio Depot, Sod Depot to the west, the Dinette Shop, Michael Gainey Interiors, and a small strip center to the east. She stated there is a new Kane's Furniture Store going up across the street; there are the Lazy Boy Furniture Store and the Party Outlet on U.S. 192; a Mattress Barn is under construction; and there are many other projects that have either existed or are being built, many of which have been there a long time and peacefully co-existed with the residential neighborhoods to the rear. She advised each of the commercial properties abuts residential lands and met and conformed to various requirements of the Codes through buffering, retention areas to separate uses, fencing, landscaping, etc.; and they have worked together compatibly. Ms. Lawandales presented pictures of what some of the buffers evolved into, existing oak trees and other flora and fauna on the subject site that will serve as a buffer between the uses and nearby residential uses, and the entry off Gray Road which intersects with U.S. 192. She stated the site is proposed to have two access points, one off U.S. 192, and one off Gray Road; the access from Gray Road is for safety purposes, as trucks making left turns would have to make a U-turn on U.S. 192, which would be a serious problem for westbound and eastbound traffic; and presented a set of pictures showing a truck and the site. She stated it is a safety hazard to require trucks or cars to make U-turns on U.S. 192 to come to a sole access point. Ms. Lawandales advised the request meets the zoning regulations and is in conformance with the Mixed Use District; when the request first came to the County, the applicant requested an expansion of the MUD by 50 feet to allow for a depth of 350 feet in order to put the retention area to the rear of the property with the same zoning and to bind that as part of the development plan reserving the area strictly for retention purposes; and it would have been good for the neighbors who are there and for any subsequent residential development. She stated the remainder of the property is RU-2-10 which would allow up to 10 units per acre; however, when the request went to the Local Planning Agency, it was denied, so the MUD expansion application was withdrawn and the applicant simply requested rezoning to change the property from RU-2-10 to BU-1 in conformance with the Future Land Use Map of MUD which currently exists on the property. She advised that David Menzel drafted a site plan showing several characteristics of the site; and the applicant is willing to bind the site plan with three stipulations, one being that the buffer requirements would be met or exceeded between commercial use and residential use particularly where the three houses start at about 300 feet or so. Ms. Lawandales identified the locations of existing businesses, Gray Road, and U.S. 192; stated the proposal is an L-shaped building of approximately 20,000 square feet of shopping area divided into units as desired by clients; the building would serve as a buffer to separate residential use from visibility of the commercial uses; and all commercial uses will face the parking area. She stated there will be no traffic, loading or deliveries to the rear of the project; the backside would remain green space with the retention area; and the only access to the back would be through fire doors. She stated the site can meet all the site plan regulations and zoning regulations for parking, setbacks, infrastructure, and utilities. Ms. Lawandales advised the other two stipulations are to maintain the area as retention, and clear the drainage ditch which is clogged; there is growth and debris which have been issues with the neighborhood; the applicant would be willing to pipe a portion of the drainage ditch to assist in managing any existing water flow into the rear ditch; and all the site flow would go into the retention pond, so there will be no impact from the development into the existing drainage system. She stated she discussed the need to have the access point on Gray Road; they would stipulate to the two access points, as safety is the issue; they would provide for the safety of anyone coming to the project and the residents in the area; and it is a natural fit. She stated she would like to reserve an opportunity to respond to any issues that may arise; and thanked the Board for its consideration of approval.

Chairman Higgs advised Mr. Menzel is part of the applicant's presentation, so if he speaks, he will be using part of the remaining five minutes. Ms. Lawandales requested they reserve that time until after they hear the comments.

Augie Rodriguez advised his complaint is about the septic tanks and sewage going into the wells because they all use well water; and he does not know what the solution is, but it is up to the Board to resolve it.

Geraldine Wallace stated the Sod Depot is not compatible with the area; it has wrecked her life and property with dust, dirt and soot; and inquired why Mr. Chen is not present since he is the one who wants to build the monstrosity on the property. She stated the frontage of the streets have businesses, but not one of the streets have strip malls going in the back or along the properties; she would not have a quarrel with a shopping center on the front; but she does not want 14 shops in her back yard. Ms. Wallace advised at the meeting in Commissioner Voltz's office, they thought they were going to discuss why they did not want the strip mall to be located practically in their backyards, but most of the time they discussed city water, and that they may get city water if they did not object to the mall. She stated they have lived there many years without city water, so it was not the object of her going to the meeting; and it would cost a lot to bring water to the area plus to the homes. She stated the shops will be open seven days a week all day long and probably in the evenings; there will be cars, people, noise, exhaust, vagrants and street people who huddle in doorways and dig through trash bins and relieve themselves in the back of the buildings; it would be an attraction to children which could be dangerous; and noted the arrest of a man at Lowe's Center. She stated it has been assured that Gray Road would not have traffic problems; however, Katherine Boulevard has plenty of them; the real estate agent brought up Mrs. Fondong's ill health and taxes, and mentioned her taxes; and she resents that because they had no business talking about her taxes. Ms. Wallace stated as for ill health, she could match Ms. Fondong in any way; and mentioned her operations, lung cancer and osteo-arthritis, etc. She stated Ms. Fondong's ill health and taxes have nothing to do with developing that area.

Joan Olmstead stated she does not object to the building on U.S. 192, but objects to the access off Gray Road because it would tear up their streets. She stated they have truck problems now with the Dinette Store; and described the problem with trucks blocking traffic, noise, and fumes. She stated if the access is off U.S. 192 she does not have a problem with it as long as their septic tank system does not pollute the well systems in the neighborhood. She stated students get the school bus at the corner, and trucks would pose a great danger; but her main objection is access off Gray Road.

Mr. Linn Wallace stated the Sod Depot is not compatible with the neighborhood; the business proposed to go in the backyard of his mother Geraldine Wallace's property is upsetting to her and the residents of the area off Gray Road; and he is stunned because it looks like the strip mall will be allowed to go in between two residential areas. He stated if it was not an older neighborhood with older residents and lower income residents, it would not be considered, and they would not be at the meeting today.

Greg Sammons stated his concerns are trucks on the road, extra traffic, safety of his children who play on the road, the septic tanks and sewer system being put it in his front yard, and his well water being polluted. He stated the Dinette Store has trucks blocking the road all the time; and more trucks will be a traffic jam every day. He stated he has no other problems with what they plan to build, other than the traffic, sewer system, and water pollution.

Helen Hotz stated Gray Road is not wide; she can hear the 18 wheelers crank up even when she is asleep; they paid for the road and it is full of ruts now; and inquired what will happen with the heavy trucks coming in and out. She stated she strongly objects to the traffic, and is concerned about the water; the land has a hard pan and when it rains the water does not seep through; it will cause problems for septic tanks; and requested the Board think it over carefully.

Nick Beckey stated his concern is stormwater runoff creating a pond in his backyard; and inquired when it floods where will the water go, in the ditch on Gray Road or in his yard. He inquired if the lower part of the bank of the holding pond will be towards the ditch that goes along Gray Road. He stated the pipes are not sufficient to take the water runoff; and the ditch should be widened and large pipes installed to handle the runoff to Crane Creek and Sheridan Road dike. He stated there was a statement made that there were businesses on each side of the site at 300 feet; that is not true; there is only about 150 feet of business which is the Sod Depot; and he would like to know what RU-2-10 is on the remaining acres. Mr. Beckey stated a big problem is the septic system; people said water they were drinking picked up extra minerals or some chemicals; so someone needs to sample the ground water to see if the septic tank system sufficiently works with what they are trying to put in there. He inquired what will happen with additional septic tanks if people are having problems now. He stated the ditch that goes down Gray Road needs to be widened to take the runoff from higher ground; when businesses come in, the ground has to be built up; and his property is lower, so it will get all the water. Mr. Beckey stated if the building was straight instead of L-shaped they could come in and get out without bothering people on Gray Road; but they want to take advantage of all the property they can get businesses on.

Layton Wallace advised his mother Geraldine Wallace has been battling the Sod Depot situation for four years; they consider it intolerable; and now the strip mall is going in behind the three houses on Katherine Boulevard, and will be another intolerable situation with high traffic at all hours of the day. He stated on every block of Wickham Road there is a strip mall, old ones and new ones; there is a high percentage of vacancies; so there is no need or demand for another strip mall, especially if it is going to impact residential property, primarily the homes on Katherine Boulevard.

Chairman Higgs stated there were several questions she would like the applicant's representatives to respond to; one question was who is Mr. Chen and why is he not a part of the hearing. Ms. Lawandales advised the present owner of the property is Rosemary Fondong, and Mr. Chen is the purchaser of the property. Chairman Higgs requested an explanation of what RU-2-10 is and what would be on the back parcel; with Ms. Lawandales responding RU-2-10 is multifamily zoning; and about 800 feet of the depth would remain RU-2-10 which would allow 10 units to an acre. Chairman Higgs inquired if the engineer of the project can talk about the drainage plan for the site.

Dave Menzel with MAI advised he did the site plan for the front 300 feet with the drainage contained on site to drain to the retention pond and outfall into the ditch and to the canal. He stated there will be no drainage going off site in any way; and indicated they will pipe a portion of the ditch on Gray Road, once they get the survey and determine there is drainage from Gray Road. He stated there will be a shallow swale at the surface that will have inlets to collect the water so that it would take its natural flow and get to the open ditch. He stated piping for the first 300 feet would be economically feasible, but doing the entire ditch would not work economically for the project; however, that can be addressed at a later date. Mr. Menzel stated the back of the parcel will be left natural, so it would not be an impact beyond that point; if there is any water from the site currently running onto the gentleman's property, it will not be running on his property after they are done; it will be collected on the property and will be swaled back; and drainage from the building will be piped directly into the retention pond, so they would be solving the problem if there is one.

Commissioner Carlson advised the State requires 75 feet between septic tanks and retention areas; and the concept does not look like it agrees with the requirement. Mr. Menzel stated there are limits of where the septic tanks could be based on setbacks; the retention area is the large rectangle, and the two rectangles are for the septic tanks; and he was not sure what the size would be and did not want to get into any issues relating to setbacks. He stated if there is a 75-foot separation required, something will move or be reduced; they will meet the County's and St. Johns River Water Management District's requirements for retention and septic tanks and the distance from abutting wells; and he does not have the information on the location of any wells around the property, but will determine that when they get a survey done. He stated he based the site plan on what he knew and general locations of where things would be, but they will have to meet all requirements.

Commissioner Scarborough inquired if a binding development plan is approved and is inconsistent with the setbacks, which would prevail; with Assistant County Attorney Eden Bentley responding the setback provisions would prevail. Commissioner Scarborough stated Mr. Menzel said he does not know, so the plan is not accurate; with Ms. Bentley responding the Board could table the item so they can determine exactly what they are going to do and give the County that information, or it could word the BDP a little differently so it has flexibility, but it would not have the predictability that it would want. She stated if the Board wants an accurate depiction, it would not want something that would move depending on what the final plan is.

Chairman Higgs inquired if the Board could prohibit access off Gray Road by the BDP; with Ms. Bentley responding the Board adopted the BDP provision because of access issues, and it can block access onto Gray Road.

Ms. Lawandales stated the developer has to meet all permitting requirements, but if it would make the Board feel more comfortable, he will scale off 75 feet between the two areas to assure the separation distance. She stated the applicant is willing to stipulate putting in a sidewalk along Gray Road for the school children and others who would be coming from the neighborhoods; it is going to be a neighborhood commercial center; it is not going to be a Publix that is going to have a lot of trucks; there would be offices and Hallmark Stores whose deliveries would be made by Federal Express and UPS; and she sympathizes with Ms. Wallace in terms of the Sod Depot, but the difference between the Sod Depot and the site is that the site will be a finished product. She stated the site is going to have paved parking, curbs, gutters, sidewalks, and retention areas; the Sod Depot has no retention and is all dirt; behind the building a stonewall will separate Ms. Wallace's house from the use; so it is a completely finished product with sod, landscaping, paving, drainage, and no negative impacts. Ms. Lawandales stated from a safety standpoint, she hopes the Board will consider it safer to not have traffic make a U-turn, but allow it to utilize the open median cut to come in on a portion of Gray Road. She stated the developer will put in right-hand turn only signs so no trucks would leave through North Oak Street; they would come in and go out by making a right-hand turn on U.S. 192; and it really is a safety issue. She stated the hours of operation and noise were mentioned; nuisance factors are governed by County Ordinances; the types of shops would be closed between 7 p.m. and 11 p.m., and some may not open on weekends; but regardless of that, they will have to meet the County Codes for nuisance, noise and odor. Ms. Lawandales stated trash will be in the front; the reason the building is L-shaped is to provide its own natural barrier and buffer and eliminate the visibility of any other uses or activities on the site from the residents and future development; and the retention area will also serve to buffer the residences. She stated the developer will stipulate to the location of trash dumpsters, and that they would be screened; the garbage trucks would pull in, come around the island, unload, and come out onto U.S. 192; and there will be no trash receptacles in the back of the building. She stated she addressed vagrancy issues in her report; they have to meet the level of service standards in staff's report; it is well below the level of service standards for U.S. 192; and the use is compatible with the area. She stated they want to be good neighbors and are willing to provide the type of improvements to insure that they are good neighbors; and they are willing to stipulate to buffering requirements, right turn only onto Gray Road, a sidewalk along Gray Road, and meeting septic tank permit requirements. She stated it is aligned with the location of Michael Gainey's access point; thanked the Board for its consideration; and requested its approval.

Commissioner O'Brien inquired if the rezoning request is only for the first 300 feet and not the entire property; with Ms. Lawandales responding that is correct, and identified the 300 feet from U.S. 192. Commissioner O'Brien inquired if the white patch is woods; with Ms. Lawandales responding yes, it is all-natural. Commissioner O'Brien stated if they want to build an apartment building, they could, but that is not part of this rezoning application. Ms. Lawandales stated the retention area would be under one ownership and would serve both developments.

Commissioner Voltz advised she met with the residents in her office and asked what their concerns were; what she heard from almost all of them were flooding, stormwater runoff, and wells being contaminated by drainage off the site; and those were the main problems from the residents except Ms. Wallace who did not want the shopping center at all. She stated she suggested an MSBU that would go down Katherine Boulevard and off Oak Street; and she will meet with the residents at West Melbourne City Hall to see who would want the MSBU to have city water which would take care of their well contamination concerns. Commissioner Voltz advised she met with Public Works Director Henry Minneboo at the site on Monday about the drainage on Katherine Boulevard; because the pipes under the driveway are inadequate, they have flooding; so if they have to dig up anything to put in water lines, they may get larger drainage pipes in the process. She stated Mr. Minneboo suggested the ditch be piped in and that the driveway which is further west be moved directly east across from the Dinette Store so the trucks could pull in there and back out and would not be sitting on the highway. She stated Dick Thompson suggested putting truck signs up at the driveway of the Dinette Store so they do not have trucks coming on Oak Street; and they talked about prohibiting loading from the right-of-way, because they are loading now, and pulling up trucks beside the driveway of the Dinette Store. She inquired if any Commissioners had problems with the request.

Chairman Higgs advised she is concerned about the intrusion of traffic into the neighborhood; the whole site is now RU-2-10, although it does have an MUD for 300 feet off U.S. 192; the front parcel will be commercial at some point; and inquired if there is any compelling reason they have to provide access onto Gray Road.

Commissioner Voltz stated they cannot get a big truck into the facility; and an 18-wheeler would have to go further east, come back up Hickory, across Oak, and down Gray to make a right turn onto New Haven and into the property. She stated the big trucks would be going through the neighborhood because that would be their only access onto the property. Chairman Higgs stated they represented it would not be big trucks because of the nature of the businesses that would be in there, and would be Federal Express and UPS-type trucks. Commissioner Voltz stated they cannot guarantee that.

Commissioner Carlson inquired if they have the appropriate distances to allow an 18-wheeler to come in from Gray Road and out onto U.S. 192; with Mr. Menzel responding they have the ability to make that turn inside the parking lot; and explained a drawing. Commissioner Voltz stated she is concerned about 18-wheelers going through the neighborhoods; Michael Gainey is going to expand and put in 7,000 square feet next to the Dinette Store; and their traffic problem will be resolved because they will not go on Gray Road at all.

Commissioner O'Brien advised the issue of increased traffic was brought up; the impact of traffic from apartments on all streets would be phenomenal if the entire property was developed for apartments; some traffic will come and go throughout the day at a shopping center; but it would not have the same impact as apartments in the middle of single-family homes. He stated the signage would make sense if it had teeth; and the Board would have to pass an ordinance establishing a fine for truck drivers who do not obey the signs.

Commissioner Carlson inquired if the adjacent homeowners were concerned about buffers; with Commissioner Voltz responding she did not hear anything about buffering from anyone except Ms. Wallace; the buffering was brought up the last time and resolved; and requested Mr. Menzel address the buffering issue.

Mr. Menzel advised the last time they were before the Board the driveway went all the way around the back of the building; they eliminated that and shifted the building over from what was 15 feet to 25 feet; and there is no activity behind the building other than emergency exit doors that will be on a panic hardware that will set off an alarm and would only be used in case of fires. He stated since there will be no activity in the back of the building, there will be no noise or lights; and the back of the building will actually be a wall. He stated they could put a wall on the property line if the homeowners wish, but they thought since the building is going to be a wall, they could leave that and the residents could see the landscaping that will be put in. He stated they agreed to put in an opaque landscaped buffer the length of the building and 100 feet to the east which would eliminate any view of the development from six to ten feet in height. Ms. Lawandales stated the whole site is very heavily treed; the pictures in Set B show the rear of Ms. Wallace's house; the trees serve as a natural buffer; and that would remain in addition to any other buffers that would be required. She stated in many locations there are no walls used; they would abide by the wishes of the staff during site plan review, but behind the Lazy Boy and Kane's are no walls; those are adjacent to single-family homes; and it is all done in landscaping. Commissioner Voltz stated she would prefer landscaping.

Chairman Higgs stated it is not inconsistent with the concept to have multifamily close to shopping areas; her concern is if the property is divided and constructed the way it is proposed, it would leave the multifamily parcel in the back with no access except through the neighborhood; and it would create another situation. She stated the way developments are going now, it is not only proper but advisable to put multifamily close to shopping areas and other kinds of amenities; but if the BU-1 is on the front with no access for the rear parcel, there could be problems. Commissioner Voltz advised the access would be from Gray Road. Chairman Higgs stated it would bring a significant number of cars into the neighborhood. Commissioner Voltz stated it is going to happen anyway. Chairman Higgs stated if it stays RU-2-10 all the way to U.S. 192, they could have access for the multifamily development on U.S. 192. Commissioner Voltz stated almost all of U.S. 192 is commercial; and she would not want to live on U.S. 192. Chairman Higgs stated part of the front parcel could be used for access to the rear and BU-1.

Ms. Lawandales advised the reason for suggesting sidewalks was to connect the residential area; and explained a drawing where the septic tank can be located, a roadway access provided from the side of the building into the rear as well as access for biking and pedestrian linkage into the commercial center, and access from Gray Road. She noted there is enough room to provide a two-way entrance from the property; with Chairman Higgs responding not if the septic tanks and drainfields are there. Ms. Lawandales stated if the septic tank goes in another location there would be sufficient area for a road to link the multifamily area.

Mr. Menzel stated trying to access the multifamily parcel from the center will be a difficult task because they would not want to drive through a parking lot; and a reasonable solution might be to down-zone the back to single-family rather than multifamily use. He stated access to the property from the front will make it a subsidized housing project; he ran into that issue before in Melbourne Village east of Steven's Bassett Store; in exchange for an access off a side road, he down-zoned the property; so it was an even tradeoff. He stated with the frontage they have, FDOT is not going to allow an entrance for the shopping center and an entrance for the other parcel; so in effect they would have to have an entrance going behind the building in the back of the houses which will create problems they eliminated from the last meeting. He stated it would create other issues and restrict the natural use of the property.

Chairman Higgs stated multifamily is not consistent with surrounding properties. Mr. Menzel stated it is zoned multifamily, but it could be down-zoned to something of less density so it would be compatible with the residential community and be given access from Gray Road. Chairman Higgs inquired if the applicant is ready to stipulate to that; with Ms. Lawandales responding no, the property had RU-2-10 status for a long time.

Commissioner Voltz inquired how many acres are in the back parcel; with Ms. Lawandales responding 4.6 acres from a total of 7.09 acres. Commissioner Voltz stated it would make more sense to have single-family homes back there. Ms. Lawandales stated they want to reserve the development rights of RU-2-10 which is consistent with the County's Comprehensive Plan. Chairman Higgs stated it is not consistent with what is there.

Commissioner Carlson inquired if the County could down-zone the property in the back because of the issues that were brought up, and can it be put in the BDP as a request or get the consent of the applicant; with Ms. Bentley responding the Board has an administrative rezoning process it could initiate, but it cannot do it tonight as part of this application. Commissioner Carlson inquired if it could be put in the BDP; with Ms. Bentley responding no, unless the applicant agrees and the BDP legal description included that area.

Chairman Higgs stated more work needs to be done before she can feel comfortable voting one way or the other; it will be commercial on the front, but it may create all kinds of things in the back; and she would feel more comfortable if the Board had additional time to work on it.

Motion by Commissioner Voltz, seconded by Commissioner O'Brien, to continue the public hearing on Item 1 (Z9911501) Rosemary Fondong's request for MUD boundary expansion to 350 feet and change of classification from RU-2-10 with BSP to BU-1 and removal of BSP on 2.45 acres located on the northwest corner of U.S. 192 and Gray Road, until April 6, 2000 Board of County Commissioners meeting.

Commissioner Scarborough stated his problem is a piece of property causing the community to bear the burden; and inquired if a person has a narrow parcel, why should the community have to compromise its quality of life to accommodate the property. He stated the property owner needs to get competent technical work done and answer those questions; and it would behoove the developer to review the new plans with the community so they have the opportunity to ask questions and feel comfortable rather than coming to the Board meeting and having a surprise. Commissioner Voltz stated she will do that even if it takes 60 days.

Ms. Lawandales stated she understands the concerns and appreciate the willingness to work things out; there are some time concerns to fully identify where certain things such as septic tanks will go; and it will require a lot of expenditure and engineering without some type of security that what they are spending for is a viable project. She stated the applicant would be willing to stipulate to a lesser density on the back parcel other than the maximum ten units per acre if that would make the Board feel better about what the rear development could be. Ms. Lawandales stated to limit the development to one access to U.S. 192 creates a hardship for everyone who would want to develop there; each of the developments along U.S. 192 on both sides of the road enjoy access from a side road as well as from U.S. 192; and in some cases they have enough room along U.S. 192 to have two access points, but this property does not; and they wish to preserve that access off Gray Road. She stated if they can preserve that access point, they will limit the density to something lower such as eight units or six units per acre. Chairman Higgs stated it is a problem piece of property, and those things need to be worked out without negatively impacting surrounding properties.

Chairman Higgs called for a vote on the motion to continue Item 1 to April 6, 2000. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATIONS OF FEBRUARY 7, 2000

Chairman Higgs called for the public hearing to consider the recommendations of the Planning and Zoning Board (P&Z), made at its public hearing on February 7, 2000, as follows:

Item 1. (Z0002101) Susan E. Hahn and Deirdre E. Renninger's request for change from GU and AU to AGR on 2.02 acres located on the south side of Erica Street, west of Knoxville Avenue, which was recommended for approval by the P&Z Board.

Chairman Higgs advised there is only one other AGR in the area; and inquired if the change is to accommodate a barn, can it be accomplished by an RR-1 zoning, as AGR would allow mobile homes, and the area is not for that type of development.

Zoning Official Rick Enos advised the Comprehensive Plan designation is one unit per 2.5 acres, so RR-1 would not be compatible. He stated if the concern is the ability to have a mobile home, another option would be to amend the nonconforming section of the Code to allow consideration of AU zoning on the property which would be consistent with the Comprehensive Plan. He stated the lots are already undersized for GU and would still be undersized for AU, but with a Code amendment they could consider the AU zoning on that property.

Commissioner Scarborough inquired if the applicant stipulated not to have a mobile home, would that be legal; with Mr. Enos responding that is another option to limit uses in AGR to eliminate certain uses that would be objectionable, but he would not want that to be a common practice if there are other alternatives for the future.

Chairman Higgs stated she could support that, but is concerned about having AGR dotting the zoning maps without fully defining how they are limited, as people may misunderstand it. She noted it could be administratively rezoned at a later date. Commissioner Scarborough noted that would limit AGR's.

Commissioner Scarborough advised the applicant about the concern relating to changing the nature of the community; and stated the Board would let her proceed but wants to restrict the uses and have her consent to administrative rezoning to AU once the Code is changed. Susan Hahn indicated agreement with the Board's wishes.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item 1 as AGR with restricted uses and consent to administrative rezoning to AU when the Code is amended. Motion carried and ordered unanimously.

Item 2. (Z0002102) Rhonda Curry's request for change from AU to RU-1-11 on 0.25 acre located on the east side of Harry T. Moore Avenue, south of Main Street, 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. (Z0002103) William A. Winn and Cecile A. Winn's request for change from GU to ARR on 1.03 acres located on the east side of Moonlight Drive, south of the eastern terminus of Soggy Bottom Avenue, which was recommended for approval by the P&Z Board.

Alvin Stern stated they want to put a mobile home on the property which will meet County Codes for septic, well, landscaping, etc.; and it will be done by a contractor and done right.

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

The meeting recessed at 7:01 p.m., and reconvened at 7:17 p.m.

Item 4. (Z0002104) Mitchell L. and Lucie L. Knox's request for CUP for wild animals and poisonous reptiles in AU zoning classification on 31.62 acres located on the northeast corner of Dixie Way and Davis Road, which was recommended for approval by the P&Z Board for Class III animals only, no poisonous reptiles, and additional buffers as offered by the applicant.

Commissioners O'Brien, Voltz, and Higgs advised Mr. and Mrs. Knox came to their offices to discuss the item.

Mitchell Knox submitted documents for the record, and reserved his time for rebuttal.

Susan Canada stated she has a letter from Tracy Hartman, Assistant General Counsel with Florida Fish and Wildlife Commission which affects the decision by the Board. Commissioner Scarborough inquired if Ms. Canada is objecting to the application; with Ms. Canada responding not at all. Commissioner Scarborough inquired if there were objections from the audience.

Donald Murphy stated he had no objections. William Schrader advised of his experience with other wild animals next door to his residence, noting the terrible noise and foul smell.

Commissioner Scarborough stated when it was advertised, it was for wild animals and poisonous reptiles; and for the purpose the CUP, Mr. Knox needs to tell the community what he will put on the property.

Susan Canada advised of a fax from Florida Fish and Wildlife Commission Legal Service, regarding protecting the public at all times, Dr. Ward's notes about rabies, the Department charged with protecting public health and safety, and a written evacuation plan; and stated the Board is infringing on the Fish and Wildlife Commission's exclusive jurisdiction to regulate wildlife. She stated the Board can call Tracy Hartman, Assistant General Counsel for the Fish and Wildlife Commission at 850 487-1764 about that issue. Ms. Canada advised the Board can control, through zoning, structures, fences, etc., but cannot mention wildlife or say because of wildlife it will not approve the permit; the Board cannot say it is a safety issue because Fish and Wildlife covers that; and it cannot deny a CUP because of possessing certain wildlife. She read part of the fax, which stated, "Wherein the court stated that it recognized that the Commission has exclusive authority to enact rules and regulations governing wildlife"; and "The Constitution places distinct limitations on local government's ability to regulate matters pertaining to wildlife." She stated the statements also relate to the other issue heard by the Board.

Commissioner Scarborough inquired if Ms. Canada is saying Mr. Knox does not need a CUP and is authorized to have wild animals; with Ms. Canada responding she cannot say he does not need the CUP, but the Board cannot ask him what wildlife he is planning to have on the property or anything about wildlife; and suggested Commissioner Scarborough read the front page of the fax. Commissioner Scarborough stated if the Board cannot speak to wildlife and the CUP talks about wildlife, then the CUP is irrelevant and could be withdrawn because Mr. Knox is entitled to it as a matter of right under State law. Chairman Higgs stated that is not what it says; the letter of May 3, 1999 is inconsistent with what has been said, because the letter says the Commission has recognized the authority of local governments to regulate through legitimate zoning regulations. Ms. Canada stated it covers things like cage height, etc.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to table Item 4 to April 6, 2000, and direct the County Attorney to contact the Florida Fish and Wildlife Commission to determine the jurisdiction regarding wild animals.

Anthony Garganese, Attorney representing the applicants, requested to speak; with Chairman Higgs responding she does not have a card from him, and a motion to table has been made. Commissioner Scarborough stated there is no discussion after a motion to table; the Board had a fundamental issue raised about whether it has jurisdiction; and before it proceeds any further on any substance or take any testimony, it should have the County Attorney research it and become thoroughly informed on the law. He stated Mr. Garganese is out of order, but will have an opportunity to address the issue in the forthcoming month.

Chairman Higgs called for a vote on the motion. Motion carried and ordered; Commissioner Higgs voted nay.

Mr. Garganese advised his client was here in respect to the limited authority the Board has in regulating wildlife. Chairman Higgs stated she is willing to recognize the stipulations and conditions which the applicants were willing to have the Board consider, but the motion was to table. Commissioner Scarborough stated if the issue of jurisdiction had not come up, it would have probably had a motion in favor of the CUP; however, the issue came up, and it is questionable whether the Board could vote either way. Mr. Garganese stated his client submitted an application, putting them under the jurisdiction of the Board with respect to the CUP; and there are limitations on the Board's authority to regulate wildlife, but they were hoping to get a decision tonight. Commissioner Scarborough stated even if someone puts in an application, the Board cannot exercise jurisdiction if it does not have it.

Chairman Higgs asked the County Attorney if there is any reason to believe the Board does not have the ability to consider CUP's in the area of wildlife even though the letter from the Assistant General Counsel from Florida Game and Freshwater Fish Commission says it has; with Assistant County Attorney Eden Bentley responding insofar as the CUP relates to zoning issues and not regulation of things and treatment of the animals, the Board has jurisdiction, but the CUP must be limited to land use issues; at this point it relates to noise, odor, and nuisance factors; however, she has not thoroughly researched the issue of jurisdiction which is usually complicated.

Commissioner Voltz inquired if the Board has no jurisdiction, would the application fee be refunded; with Commissioner Scarborough responding he would entertain a motion to that effect.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to authorize refund of the application fee if the Board does not have jurisdiction to consider the CUP.

Commissioner Carlson suggested the applicant be informed before the month passes if the research finds there is no reason to have a CUP. Chairman Higgs advised the County Attorney indicated the Board has authority to make that decision; the letter says in zoning the Board has authority to make a decision; so that is not an issue. Commissioner Scarborough stated there are reasons to have concerns about where the Board's jurisdiction lies.

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

Commissioner Voltz requested the County Attorney notify the applicants as soon as possible if the Board does not have jurisdiction.

Item 5. (Z0002401) Brevard County Board of County Commissioners, on its own motion, authorized administrative rezoning of Daniel W. Sims' property of .99 acre located on the southeast corner of Suntree Boulevard and Pineda Court, from IU to BU-2, which was recommended for approval by the P&Z Board.

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

Item 6. (Z0002402) Glenn E. and Keri J. McCormick's request for change from AU to BU-2 on 1 acre located on the north side of SR 520, east of Range Road, 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. (Z0002501) Leslie E. and Jerri L. Woodring's request for change from GU to RU-1-11 on .505 acre located on the southwest corner of Hoot Owl Court and Thompson Road, which was recommended for approval by the P&Z Board.

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

Item 8. (Z0002502) Joel S. Moss, as Trustee's request for Small Scale Plan Amendment to change the Future Land Use Map from Residential to Mixed Use and change classification from BU-1 with BSP to BU-2 and removal of BSP on 4.882? acres located on the north side of U.S. 192, west of Wickham Road. The LPA recommended approval of the Small Scale Plan Amendment; and the P&Z recommended approval of BU-2 with BDP limiting use to mini-warehouse facility; prohibiting any business operations from individual storage bays; no electricity, water, telephone or gas brought to the bays; lighting and air conditioning if furnished will be located only in hallways; building height maximum of one story; prohibit storage of cranes and other construction equipment on property; no tractor-trailer except for limited purposes and to pick up or deliver storage items; no generators of any kind; no hazardous materials on site; signage be placed on each building to reflect no hazardous materials are permitted and no units can be used for a business; a two-foot irrigated and heavily landscaped berm to be well maintained around the entire perimeter of the property except the entranceway; lighting fixtures to be designed so light remains on site within the confines of the property; front entrance gate to be designed and located in order to allow for a thirty-foot long trailer on the property without extending onto the sidewalk adjacent to U.S. 192; and subject to the concept plan submitted by the applicant.

Commissioner Scarborough advised Leonard Spielvogel met with him on this item; and inquired if anyone is in opposition. Chairman Higgs advised she has some questions, and Mr. Spielvogel also came to see her. Commissioner O'Brien advised Mr. Spielvogel also came to his office.

Attorney Leonard Spielvogel, representing the applicant, advised Joel Moss, as Trustee is the title holder, but he represents Mr. David Fahmie who wants to construct a mini-storage on the property. He presented documents to the Board; advised the parcel is 4.9 acres in size located on the north side of U.S. 192, west of a parcel being cleared for a Mattress Barn store; it is vacant, has a depth of 1,118 feet and frontage of 150 feet; and in the packet is a sketch showing the parcel. He stated the property is zoned BU-1 for the entire depth; however, the MUD is only on the first 300 feet; the balance has residential land use; and he is requesting a small scale plan amendment for MUD for the balance of the depth, and BU-2 zoning for the entire parcel to accommodate mini-storage. Mr. Spielvogel stated it is a good project; the P&Z and LPA unanimously recommended the project and the Small Scale Plan Amendment for approval; and there was a member of the public who spoke at the hearing in favor of the project, who cited the Bare Assets facility and Purple Carpet Building, and noted the proposal would bring an attractive facility to that part of U.S. 192. He advised there is a 20 to 30-acre borrow pit on the north line of the property which will serve as a natural boundary for extension of the MUD; the property is 500 feet from the closest residence; and a binding development plan was submitted, a copy of which is in the packet, restricting the request to mini-storage only, and much of the same limitations, commitments, and agreements as in the plan submitted last month for the mini-storage on Merritt Island, but in this case they are talking about a landscape berm around the entire property.

Chairman Higgs advised there was an issue to the east, but this property backs up to a borrow pit which is clearly a physical boundary and a binding development plan (BDP); and this project fits on that parcel. She suggested staff look at the other parcels in the area and return with recommendations as to how the Board can be consistent with what uses should be allowed.

Commissioner Scarborough stated this proposal will have low intensity use on property that could have high intensity use; it is substantially different from a previous request; and he can vote in favor of it. Chairman Higgs stated she can support it, but wants staff to look at what the Board should do, and what considerations it should have for the long-term use of those parcels. Commissioner Scarborough stated if the previous applicant would agree to a BDP adequately insulating his property for storage, the Board could have favorably consider it, but he did not want to have the limitations of a BDP. Commissioner Voltz stated his use was much more intense. Chairman Higgs stated his property did not have the BDP or physical feature that this one has. Commissioner O'Brien gave a scenario of operations allowed in mini-warehouse units, and noted a lesson learned by not allowing electricity, water and other amenities.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item 8 as recommended by the P&Z Board, and adopt Ordinance adopting Small Scale Plan Amendment #00S.1. Motion carried and ordered unanimously. (See pages for Zoning Resolutions, BDP, and Ordinance No. 2000-15.)

PUBLIC HEARING, RE: PORT ST. JOHN DEPENDENT SPECIAL DISTRICT ADVISORY BOARD RECOMMENDATION OF FEBRUARY 2, 2000

Chairman Higgs called for the public hearing to consider a recommendation from the Port St. John Dependent Special District Advisory Board, made at its public hearing on February 2, 2000, as follows:

Item 1. (PSJ00201) Richard E. Jr. and Mary Beyer's request for change from RU-1-9 to BU-1-A on 0.30 acre located on the northwest corner of Fay Boulevard and Stillwater Avenue, which was recommended for denial by the Port St. John Dependent Special District Advisory Board.

Richard Beyer advised the request is to rezone the property at 4900 Fay Boulevard which is one block east of Grissom Parkway and Fay Boulevard intersection. He stated the property is located next to a retention pond the County put in when four-laning the Boulevard; they requested BU-1-A, but were told the proper request would be RP with additional review of use which would suit their needs for a professional office.

Commissioner Scarborough requested Rick Enos explain the shift in zoning classification. Zoning Official Rick Enos advised Section 16-1301, Review of Use, has several options; the one that would apply in this situation is, "this procedure may be used where a use is requested which is specifically listed in higher zoning classification." Mr. Enos stated the use is in BU-1-A as a contractor's office; and the scope of the intended use is so limited that it should not require the higher classification. He stated Mr. Beyer could amend his application to RP with review of use, but he would have to show how that use is compatible with the RP zoning and how he would limit it in such a way that it is compatible with other uses in RP. Commissioner Scarborough stated if the Board opts to do that, he would like to send it back to the Port St. John Board so it could get into the types of uses.

Mr. Beyer stated the intent was to be a buffer from BU-1-A on the corner; it would only include the clerical and professional aspects of a contractor's office; and no equipment or trucks would be stored there.

Jodie Shropshire advised her property is on East Baker Circle; and she has three children, and is concerned about the traffic going in and out from Stillwater and Fay. She stated they passed the applicant's office on Saturday and there were numerous cars in the driveway and on the side of the road; and it is disturbing to change from residential to commercial when it is not needed, because there is a mall across the street that can be used for businesses.

Ronald Parker stated his house is directly across the street, and he is opposed to any business because Port St. John is a residential community. He stated Mr. Beyer said the retention pond would devalue his property; however, any business that would go in next to his house would devalue his property and change his quality of life. He stated if the property was zoned for commercial use prior to his purchasing his home, he would not have bought the house; he is a Pastor of a church that owns five acres across the street; and the congregation is not interested in having a business there. He stated there are areas zoned for businesses so they can live as a residential community; and requested the Board deny the request.

Mary Tees, Vice President of Port St. John Homeowners Association, advised the letter from the Homeowners Association was sent to the Commissioners opposing any zoning change, including RP; it is totally inconsistent with the Comprehensive Plan; and it is spot zoning. She stated within half a mile is a current strip mall; and the Small Area Plan included that the residents did not want commercial on this site or in this area and want it to remain residential. She stated Stillwater Avenue is a through street to Green Hill; only East Baker Circle crosses the street; there are three other streets that come into Stillwater Avenue, but do not go through to Grissom Parkway; and there is a school bus stop at Baker Circle and Stillwater Avenue. She explained a map she prepared; stated they park trucks that overhang the sidewalk and the children have to walk in the streets to Challenger Elementary; and noted she will address the Board about the use of the dry retention area at a later time. Ms. Tees advised there was a change at Fay and Grissom for a day care center; they are in dire need of day care centers and that is why the Association agreed to the change; Port St. John has worked hard to get quality commercial development along Grissom Parkway, U.S. 1, and the new section of Curtis Boulevard; and they do not need anything in the heart of the residential area. She stated they moved there because it was residential; they have maintained their residential atmosphere throughout the community; they do not want to live on commercial streets; and it was designed as residential and not to co-mingle with other uses. She stated if it is allowed on a quarter-acre lot, there will be more requests; they cannot get commercial development in areas where they are needed such as Grissom Parkway and Curtis Boulevard; West Avenue Center has five open stores; and it is a strip mall that could use more business.

David Shropshire stated they purchased their property to raise their three boys and because it was close to the park and excellent schools; Stillwater is used as a shortcut to Grissom Parkway and Fay Boulevard; and if the property is rezoned for business, then he would like to rezone his property to commercial and sell it for more money and get out of the neighborhood. He stated that is not what they want to do; they want to raise their children in a safe environment; and there is only one sidewalk which is located on Mr. Beyer's side of the road.

Mr. Beyer stated the property is one-tenth of a mile from Fay Boulevard and Grissom Parkway and two-tenths of a mile from the ball park and commercial area; in RP they would be allowed to put a parking area in the back yard which would clear the sidewalk; they have one-third of an acre, not a quarter-acre lot; and the setback is 25 feet. He stated right now they have a permitted driveway apron on the side; and they are not trying to ask for anything that will damage anyone. He stated the business operates from 9:30 to 5:00 on a daily basis so operations do not start until the children are in school, but they are still there at the time they get out of school. He stated they would like to down zone to RP with additional review of use; they did not consider a day care center and did not realize there was that much of a need; BU-1-A would allow that use; however, they are not interested in that use.

Commissioner Scarborough stated the pink sheet states, "The request does not appear to be consistent with the locational criteria for neighborhood commercial. The request does not appear to be consistent with the minimal spacing requirements for neighborhood commercial clusters"; and going to RP is reaching out. He stated there is no need to send it to the Port St. John Board if it will come back denied; Fay Boulevard, with the landscaping and improvements, has maintained a pleasant residential atmosphere; so he will move to deny the request.

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

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATIONS OF FEBRUARY 14, 2000 ON ADMINISTRATIVE REZONINGS

Chairman Higgs called for the public hearing to consider administrative rezonings as recommended by the Planning and Zoning (P&Z) Board, made at its public hearing on February 14, 2000, as follows:

Item 1. Section 3, Township 29, Range 38, Parcel 250.1, owned by Charles W. and Shirley M. Echols, change from TU-1(20) to TU-1(6), which was recommended for approval by the P&Z Board.

Chairman Higgs advised Mr. Echols asked for the item to be tabled for 30 days.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to table Item 1 until April 6, 2000, as requested by the property owner. Motion carried and ordered unanimously.

Item 2. Section 10, Township 29, Range 38, Parcel 757.1, owned by Robin A. Stallman, change from BU-1 to RU-2-10, which was recommended for approval by the P&Z Board.

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

Commissioner O'Brien advised the Board asked addresses to know where the property is located and know what they are looking at.

Item 3. Section 14, Township 29, Range 38, Parcel 506 (that part zoned BU-1), owned by Richard King Mellon Foundation, change from BU-1 to RP, 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. Section 3, Township 29, Range 38, Sub. #GX, Blk. 6, Lot 23, owned by Stephen N. Seiler, change from BU-1-A to RP, which was recommended for denial by the P&Z Board.

The Board acknowledged withdrawal of Item 4.

Items 5, 6 and 7. Section 25, Township 29, Range 38, Parcels 509, 512, 514, and 531, owned by Gary Coppola, change from RU-2-4 to SR on Parcel 509, TU-1(20) to TU-1(3) on Parcel 512, and RU-2-4 to EU on Parcels 514 and 531, which were recommended for approval by the P&Z Board.

Attorney Joseph Colombo, representing Gary Coppola, owner of Sebastian Beach Inn, advised there are four separate parcels affected by this administrative rezoning; Sebastian Beach Inn is a historical structure built in the 1880's and predates Brevard County's Zoning Code; and it was a U.S. Coast Guard watch station. He stated the proposed rezoning on Parcel 512 is to go from 20 units per acre to three units per acre or 4/5ths reduction in density; Parcel 509 is north of the Sebastian Beach Inn and currently zoned to allow four units an acre; and the proposed rezoning to SR would allow one unit per acre or a 3/4ths reduction in density. He stated Parcels 514 and 531 are currently zoned RU-2-4 which allows four units per acre; EU would allow one unit per parcel; that is a 3/4ths reduction in density; and the owner is against the administrative rezoning. Mr. Colombo advised the Comprehensive Plan does not reflect what currently exists throughout the County, specifically on the South Beaches; an extensive study was conducted by Lester Solin, certified planner, of the effects of the Comprehensive Plan on the South Beaches; and presented the study as Exhibit "A" for the record. He stated Mr. Solin's findings indicate that well over 94% of the total lots on the South Beaches are technically nonconforming; the commercial structures in the South Beaches are technically nonconforming; but they were granted or held to be in a conforming status due to the fact they were designated as Mixed Use, BU-1, or BU-1-A. He stated the sole properties affected by the Comprehensive Plan amendments are the tourist commercial properties of which there are a select few on the South Beaches; about 5% of the total lands on the South Beaches are tourist commercial; Mr. Coppola has a rather large parcel of land on the beaches; and his property is receiving different treatment, being improperly focused on, and singled out. He stated the fact that the Comprehensive Plan was enacted but had little effect on current existing structures except for select properties such as Mr. Coppola's, is improper; there is no substantial or competent evidence which would indicate there is a public benefit in adopting the rezonings solely for a few select parcels of land such as Mr. Coppola's; and it is an inordinate burden on Mr. Coppola's property. He stated while perhaps it is not a taking, it could rise to the threshold of pursuing a Harris Act action, as his property is being inordinately burdened by this rezoning. Mr. Colombo advised, based on the report, there appears to be no major problems with developing the property as currently zoned; it meets concurrency standards; a traffic analysis was conducted and appears to be well below level of service B if developed to the fullest extent possible with the current zoning; additionally, there are no problems with habitats, wetlands, or sewage. He stated Mr. Coppola could fully develop his property with the high end of 34 units without limitations or constraints; and he wishes to pursue that. Mr. Colombo advised there is a doctrine called equitable estoppel which applies to local governments and municipalities; prior to purchasing the property, Mr. Coppola spoke with the Zoning Department and was informed the Comprehensive Plan amendments had taken place, and Brevard County had done a rush job and would go back and grandfather his properties in; that is what was submitted to him; and the fact that Mr. Coppola detrimentally relied on those representations made by an authorized agent of the County, should be grounds for seeking an injunction to not allow this rezoning to take place based on equitable estoppel. He stated Mr. Coppola was informed his properties were grandfathered in; the structure has been there forever; and he would be able to develop the property fully as zoned at the time and as now zoned. He stated that is Mr. Coppola's position.

Commissioner Voltz requested Ms. Bentley address the estoppel situation; with Ms. Bentley responding she read the memorandum that was provided by Solin & Associates; it appears to be directed to the Comprehensive Plan; most of those comments would have been appropriate at the time of adoption of the Comprehensive Plan; but today's hearing is about rezoning and the appropriateness of the particular classification in that location. Ms. Bentley advised as to estoppel, she would need to hear more details and see actual proof, and to know about the reasonableness of reliance on any representations that were made.

Chairman Higgs advised the Board has been discussing these issues since 1993 and the estoppel argument has never been made at any point in those seven years; so she finds that argument very interesting. She stated there have been a number of hearings in regard to the Comprehensive Plan amendment and zoning; and the Board has received reports from staff, held several meetings on the issues, has minutes of previous meetings regarding the Comprehensive Plan and administrative rezonings, and has Mr. Solin's report as part of its collective memory which needs to be made a part of the record. She inquired if the Board can assume it is part of the record; with Ms. Bentley responding the Comprehensive Plan adoption yes, and this rezoning is merely implementing the Comprehensive Plan, so it would be able to pull that in. She stated as to the rezoning, what is on the record tonight is somewhat limited; if the Board wants to ensure the entire history of the Comprehensive Plan adoption over the last decade is included, it may be advisable to put those into the record; and to fully document the file, the Board would need to table this item and come back. Chairman Higgs inquired if Counsel for Mr. Coppola agrees to stipulating those items as part of the record, would that be sufficient; with Ms. Bentley responding yes. Mr. Colombo advised he will certainly stipulate to all the County documents reflecting Board meetings held throughout the years to be part of the record. Chairman Higgs thanked Mr. Colombo for his cooperation.

Chairman Higgs advised the Comprehensive Plan was changed in February, 1993 long before the Harris Act; two of the parcels the Board is discussing were purchased after 1995; and the property owner also applied for pre-existing use on a portion of the parcels. She stated the Comprehensive Plan initially took place in 1988 as part of the State's process; and the Board is here tonight to implement the Comprehensive Plan.

Chairman Higgs passed the gavel to Vice Chairman O'Brien.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to approve Items 5, 6 and 7, as recommended by the P&Z Board. Motion carried and ordered unanimously.

Vice Chairman O'Brien passed the gavel to Chairman Higgs.

Item 8. Section 17, Township 30, Range 39, Parcel 255 (that part zoned BU-1), owned by the State of Florida, Sebastian Inlet State Park, change from BU-1 to GML-P, which was recommended for approval by the P&Z Board.

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

DISCUSSION, RE: MINI-STORAGE IN BU-1 ZONING CLASSIFICATION

Commissioner Voltz inquired about addressing the issue of mini-storage in BU-1 zoning classification with all the specifications in the application represented by Attorney Leonard Spielvogel. Chairman Higgs stated she thought the Board asked staff to bring back moving mini-storage out of BU-2. Zoning Official Rick Enos advised the Board discussed it, but did not actually direct staff to do it; however, he will put together a report with recommendations, which staff is doing for the P&Z Board.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to direct staff to return to the Board with a report and recommendations regarding mini-storage.

Commissioner Scarborough stated the reason there are beautiful binding development plans is because it is drawn out for a specific area; if it drops back to zoning, there could be problems; just because something works in one place does not mean it will work in other places; and his concern is asking staff to do a lot of analyses or the Board will end up with things it does not want. Chairman Higgs advised the motion is to ask staff for a report. Commissioner Scarborough stated he is not totally buying off on the idea of moving mini-storage.

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

DISCUSSION, RE: AU AND AGR ZONING CLASSIFICATIONS

Commissioner Scarborough advised earlier in the meeting staff said it would return with a memo on the subject of amending the AU classification or change the AGR classification; and rather than receiving the memo tonight, he would like to have it distributed to the Commissioners; and if it is acceptable, it could be placed on the Consent Agenda to proceed with the changes to the Ordinance; however, if a Commissioner has a problem with it, he or she could pull it from the Consent Agent. He inquired if that is acceptable to the rest of the Board; with Chairman Higgs responding affirmatively.

REPORT, RE: WILDLIFE JURISDICTION

Commissioner Scarborough advised he was surprised with the statement about the Board not having jurisdiction over wild animals; it spent a tremendous amount of time talking about it on Tuesday; now it is walking into an area that it does not know where it is going. He stated it is not just for a single zoning item, but staff should look at a number of issues, one is consistency with State laws; and that was the number one thing the Board said. He stated he did not feel comfortable getting into a casual conversation tonight and taking a position; if it was a single issue, he may have felt differently; but he is concerned about the dynamics of the whole thing. He stated the Board asked the animal groups to meet with Dr. Joe Ward and look at the rules to reach consistency; so he hopes when it comes back it will be consistent with the Board's actions of Tuesday as well as for the single zoning issue tonight. He noted if he acted irrationally tonight, that is the reason.

Upon motion and vote, the meeting adjourned at 8:23 p.m.

ATTEST:

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

SANDY CRAWFORD, CLERK
(S E A L)