The Board of County Commissioners of Brevard County, Florida, met in regular session on October 28, 1996, at 5:30 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Melbourne, Florida. Present were: Chairman Mark Cook, Commissioners Truman Scarborough, Randy O?Brien, Nancy Higgs, and Scott Ellis, Assistant to the County Manager Peggy Busacca, and County Attorney Scott Knox. Absent was: County Manager Tom Jenkins.

Commissioner O?Brien led the assembly in the Pledge of Allegiance.

DISCUSSION, RE: POLICY ON ADOPT-A-MEDIAN

Motion by Commissioner Scarborough, seconded by Commissioner O?Brien, to direct staff to report back to the Board with recommendations and the parameters on a policy for Adopt-A-Median. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: 1996B COMPREHENSIVE PLAN AMENDMENTS FOR TRANSMITTAL TO DEPARTMENT OF COMMUNITY AFFAIRS

Chairman Cook called for the public hearing to consider the 1996B Comprehensive Plan Amendments for transmittal to Department of Community Affairs (DCA).

Attorney Philip Nohrr explained the Lowes project to the Board located off of U.S. 192 to the south which borders on Minton Road; and noted it is a 17-acre proposed land use change from residential to multi-family use. He stated he has met with the residents to try and resolve various issues; there were some concerns expressed about the lots on the east side of Feast Road; he has contacted the owner of Lot 10 and worked out an arrangement with him where he is now satisfied and not opposed to the proposed plan; and he has entered into some written agreements that will satisfy the concerns. He advised he has entered into agreements with the owner of Lots 12 and 13; such owner is satisfied with the proposed development; and an agreement has been entered into with the owner of Lot 14. He noted the owner of Lot 15 has submitted a letter of support; the owner of Lot 15.01 is also in support of the project; and the owner of Lot 11 has not expressed any concerns to him about the project and has not asked for any assurances on buffering. Attorney Nohrr stated the applicant has offered to provide Mr. Storey access off his property to the south which will require a culvert at a cost between $8,000 and $10,000; he will also have access on Helen Street; the applicant has committed to improve Helen Street; the project will be faced to the north; and almost all the deliveries will be on the east side by the garden shop. He noted the store should have 7 to 10 deliveries per week; delivery times are between 7:00 a.m. and 4:00 p.m. Monday through Friday; the applicant will put in extra landscaping and buffering; the previous sound study showed that the noise would be within the acceptable level as set forth in the Code; and the store will create approximately 150 jobs and add about $10 million in the community. Attorney Nohrr stated Lowes can be a good and orderly neighbor to the residents; and it will reach out in any way it can to do that. Attorney Nohrr presented Exhibits for the record.

Louis Westerburg, Nancy Greene, Gloria and Clayton Dewey, Ruth Gerber, Helen Kaczuwka, Robert Bennett, Fred Mullins, and John Harrison advised of their support for the project.

Peter Morton stated he is not present to speak for or against the item; and requested the Board look at the noise levels.

Patrick Healy advised of his opposition to the project.

Discussion ensued on decibel levels, residents on Feast Road, buffering issues, location of the loading zone, delivery hours, indoor lumber yard, installation of culvert for Mr. Storey, improvements to Helen Street, access issues, depth of Mixed Use District (MUD) along S.R. 192 and Minton Road, established commercial along Minton Road, expansion of MUD, and transportation facilities and impacts to roadways.

Motion by Commissioner Ellis, seconded by Commissioner Scarborough, to approve 96B.2 Future Land Use Map Series, with amendments including a 12-foot buffer, no outside storage of lumber, normal delivery hours Monday through Friday from 7:00 a.m. to 4:00 p.m., installation of culvert for Mr. Storey, and improvements to Helen Street, with such conditions being tied to this particular use which will follow through in the zoning and site plan review process.

Commissioner O?Brien advised he cannot support the motion; it is spot zoning; the County has a Comprehensive Plan which needs to be followed; and this is inappropriate.

Chairman Cook called for a vote on the motion. Motion carried and ordered; Commissioner O?Brien voted nay.

The meeting recessed at 7:07 p.m.

The meeting reconvened at 7:24 p.m.

Motion by Commissioner Higgs, seconded by Commissioner O?Brien, to approve proposed amendment to the Surface Water Management Element which affects Policies 1.3, 3.2, 3.7 and Section entitled, ?Implementation Strategies.? Motion carried and ordered unanimously.

Motion by Commissioner Scarborough, seconded by Commissioner Ellis, to revise language to the Glossary to add a definition for green ways. Motion carried and ordered unanimously.

Motion by Commissioner Scarborough, seconded by Commissioner O?Brien, to approve final motion to transmit Comprehensive Plan Amendments 1996B as discussed and based upon a thorough review of supporting data and analysis, careful consideration of the recommendations of staff, Infrastructure and Land Use Citizens Resource Groups, LPA, and written and oral public comments received, specifically amendments to the Surface Water Management Element, Glossary, and Future Land Use Map Series, as well as other amendments necessary to maintain internal consistency. Motion carried and ordered unanimously.

PLANNING AND ZONING BOARD RECOMMENDATIONS OF OCTOBER 21, 1996, RE: ITEM 1

Chairman Cook called for the public hearing to consider the Planning and Zoning (P&Z) Board recommendations of October 21, 1996, as follows:

Item 1. Caribbean Associates, Inc., a Florida Corporation?s request for CUP for alcoholic beverages for on-premises consumption in BU-2 zone on .62 acre located on the west side of Goodwin Drive, south of S.R. 520, which was denied by the P&Z Board.

Attorney John Evans, representing the applicant, introduced Exhibits into the record and provided information to the Board. He advised the request is for a CUP for on-premises alcoholic consumption in a BU-2 zone; the Exhibits include a series of pictures which locates the relationship between the existing business and the proposed location, and surrounding zonings and CUP?s in the area. He stated his client is requesting to move his existing business within the shopping center approximately 250 feet to the north to the old Standard Brands building which has been vacant for several years; and it is within the same shopping center. He advised in a CUP, the applicant has the initial burden of showing that the application meets the criteria of granting such a permit; and once that burden has been met by the applicant, then there must be a showing by competent substantial evidence that the application does not meet the criteria of the County?s zoning Ordinances or that the application is adverse to the public interest. Attorney Evans advised the applicant meets the criteria; County staff indicates the applicant appears to be consistent with Section 62-1906, Approval for Alcoholic Beverages; and a CUP for this business was granted in 1994 only 250 feet to the south of the present location. He noted the criteria that applied in 1994 should apply in 1996 unless there is something that the opposition can bring up that is not before the Board; the traffic will not increase as it is an existing business; the traffic flow patterns will be the same; the noise level should not change; and the impact to this business should be no different than the existing business. He advised there are six businesses within 1,000 feet that have this type of CUP; if the courts look very closely at what the Board has done in other situations to determine when and where it has granted CUPs and if this Board is inclined to deny this CUP, it needs to give a very good reason why the property owner should be treated different than the other six property owners who get to serve alcoholic beverages on-premises; and the CUP should be granted. Attorney Evans explained the results at the P&Z Board hearing; advised the applicant meets the criteria; and requested the County Commission approve the CUP.

Attorney Victor Watson, representing FMC Trust, advised his client has in the shopping center a Winn Dixie, Eckerds, Dancing Duds, hair salons, and a baby and children?s consignment shop; these are all family businesses; they are open during the day and into the evening; and the CUP request is incompatible with these family businesses. He noted in this case, the use has been in existence for three years; the landlord of the property has recognized that a mistake was made; this use is incompatible with all the other uses; and the lease is being terminated. He stated what the applicant has done is signed a contract to purchase a piece of property only 250 feet away; the applicant is also saying it will continue to use his client?s parking lot; his client only has 26 spaces; and the building is 8,000 square feet. Attorney Watson advised of various incidents witnessed by individuals where patrons of the bar wandered around the parking lot, urinated there, and had fights. He submitted documentation to the Board for the record; and requested the Board deny the proposed request.

Walter Dyer, Cheryl Finney Hall, Micah Savell, and Linda Perry expressed their opposition to the CUP request.

Kathy LaCourt requested the Board approve the proposed request.

Attorney Evans reiterated his request that the CUP be granted.

Motion by Commissioner O?Brien, seconded by Commissioner Scarborough, to deny Item 1 as recommended by the P&Z Board. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATIONS OF OCTOBER 7, 1996

Chairman Cook called for the public hearing to consider the Planning and Zoning (P&Z) Board recommendations of October 7, 1996, as follows:

Item 1. Harold Kugel?s request for CUP for towers and antennae in BU-1 zone on 5 acres located ? mile west of I-95, south of S.R. 50, which was approved by the P&Z Board with condition that applicant get with the City of Titusville to work out the road access as mentioned in their letter of September 19, 1996 from Keith Cunningham, P.E., Planning Administrator.

Lynn Hansel, representing The Great Outdoors, requested the Board continue the public hearing for two weeks to have time to submit written questions to the applicant and get answers back in a timely fashion.

Mary Hansen, representing OPM-USA, Inc., expressed her opposition to continuing the public hearing due to time constraints.

B. B. Nelson, representing Harold Kugel, owner of the property, expressed support for the Conditional Use Permit.

Commissioner Scarborough inquired if notice was sent to The Great Outdoors; with Zoning Official Rick Enos responding notice was sent to Jack Eckerd.

Motion by Commissioner Scarborough, seconded by Commissioner O?Brien, to continue Item 1 to the November 12, 1996 BCC meeting, with the Chairman setting a time certain. Motion carried and ordered; Commissioner Ellis voted nay.

Item 2. Florida East Coast Railway Co.?s request for change from IU to IU-1 on 20.94? acres located west of Beau Geste Road, east of Industry Road, west of U.S. 1 and north of Highway 528, which was approved by the P&Z Board.

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

Item 3. Roy F. Roberts, Jr., Trustee?s request for CUP for towers and antennae in AU zone on 100 acres located on both sides of Stuck Way, west of U.S. 1, which was approved by the P&Z Board with condition that tower be located on the north side of S.R. 5A.

Mary Hansen, representing the applicant, advised she is present to answer any questions.

Commissioner Scarborough inquired if the applicant agrees to place the tower north of S.R. 5A; with Ms. Hansen responding affirmatively.

Motion by Commissioner Scarborough, seconded by Commissioner O?Brien, to approve Item 3 as recommended by the P&Z Board, with condition that tower be located on the north side of S.R. 5A. Motion carried and ordered unanimously.

Item 4. P. B. Plastics, Inc., a Florida Corporation?s request for Small Scale Plan Amendment from Agriculture to Heavy/Light Industrial and change from BU-2 (Retail, Warehousing and Wholesale) with a pre-existing use to IU on 3.88 acres located on the north side of S.R. 46, 4 3/4 miles west of I-95, which was approved IU by the P&Z Board and Small Scale Plan Amendment from Agricultural to Heavy/Light Industrial approved by the LPA.

Zoning Official Rick Enos advised this item is associated with Item II.F. on the agenda which is Small Scale Plan Amendment 96S.5.

Discussion ensued on landscaped buffer, Planned Industrial Park (PIP) zoning, setbacks, aesthetic standards, pre-existing use, improvements and expansion, and future development.

Bea Polk requested approval of the applicant?s proposed request.

Motion by Commissioner Scarborough, seconded by Commissioner Ellis, to adopt Ordinance amending Article III, Chapter 62, of the Brevard County Code, entitled ?The 1988 Comprehensive Plan?, setting forth the Fifth Small Scale Plan Amendment of 1996, 96S.5, to the Future Land Use Map of the Comprehensive Plan; amending Section 62-501 entitled Contents of the Plan; specifically amending Future Land Use Map Series; and provisions which require amendment to maintain internal consistency with these amendments; providing legal status; providing a severability clause; and providing an effective date. Motion carried and ordered unanimously.

Motion by Commissioner Scarborough, seconded by Commissioner O?Brien, to approve P&Z Board recommendation for change of classification to IU as recommended for Item 4. Motion carried and ordered unanimously.

Item 5. Sandra Charland and Barbara Baptist?s request for change from RU-2-10 to AU and CUP for towers and antennae on 13 acres located and having frontage on the north side of Parrish Road, east of Holder Road, and on the east side of Holder Road, north of Parrish Road, which was approved by the P&Z Board with stipulation that the site remain in its natural state except for those areas necessary for construction.

Chairman Cook advised the item was withdrawn.

Item 6. John A. and Jerre L. Vogt?s request for CUP for alcoholic beverages for on-premises consumption in BU-1 zone on .26 acre located west of North Courtenay Parkway on the southeast corner of Tangerine Avenue and Grove Street, which was approved by the P&Z Board as CUP for alcoholic beverages for on-premises consumption accessory to a restaurant with a minimum of 50 seats.

Motion by Commissioner O?Brien, seconded by Commissioner Scarborough, to approve CUP for alcoholic beverages for on-premises consumption accessory to a restaurant with minimum of 50 seats as recommended by the P&Z Board for Item 6. Motion carried and ordered unanimously.

Item 7. William C. Dale, III and Linda P. Dale?s request for change from AU and RU-1-13 to RR-1 on 2.1783 acres located on the east side of North Tropical Trail, north of Quail Drive and south of Hunt Drive, which was approved by the P&Z Board.

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

Item 8. Patricia Louise Isobelle Ramsey Vance?s request for expansion of the Mixed Use District and change from AU to BU-2 on 5.51 acres located on the east side of North Courtenay Parkway, north of and adjacent to the Brevard County Deep Well Disposal Plant, which was approved by the P&Z Board as BU-1 for a depth of 100 feet and BU-2 on remainder of the property, and approved expansion of the Mixed Use District by the LPA.

Mike Selig, representing the applicant, requested approval of the LPA and P&Z Board?s recommendations.

Motion by Commissioner O?Brien, seconded by Commissioner Scarborough, to continue request for change from AU to BU-2 to the December 5, 1996 BCC Meeting. Motion carried and ordered; Commissioner Ellis voted nay.

Motion by Commissioner O?Brien, seconded by Commissioner Scarborough, to approve LPA recommendation for expansion of Mixed Use District as recommended for Item 8. Motion carried and ordered unanimously.

Item 9. Space Coast Computer Source, Inc.?s request for removal of a Binding Development Plan (BDP) in a BU-1 zone on 3 acres located on the west side of North Courtenay Parkway, ? mile north of Hall Road, which was approved by the P&Z Board with removal of existing BDP, replacing it with a new BDP limiting the property to office use and computer use as voluntarily offered by the applicant.

Motion by Commissioner O?Brien, seconded by Commissioner Higgs, to approve removal of existing BDP, replacing it with a new BDP limiting property to office use and computer use as voluntarily offered by the applicant as recommended for Item 9. Motion carried and ordered unanimously.

Item 10. R. Bruce and Sandra M. Deardoff?s request for expansion of the Mixed Use District and change from GU and RU-2-15 to BU-2 on 1.55 acres located west of Milford Point Drive, north of S.R. 520, and on the east side of North Banana River Drive, north of S.R. 520, which was approved by the LPA for expansion of the Mixed Use District and by the P&Z Board for change to BU-2 with BDP addressing parking, retention and concrete wall, as voluntarily offered by the applicant.

Darrell Peterson, representing residents of Milford Point, requested clarification on the Binding Development Plan. Zoning Official Rick Enos described the BDP.

Motion by Commissioner O?Brien, seconded by Commissioner Scarborough, to approve request for Mixed Use District boundary expansion by Bruce and Sandra Deardoff as recommended by the LPA. Motion carried and ordered unanimously.

Motion by Commissioner O?Brien, seconded by Commissioner Scarborough, to approve P&Z Board recommendation for change of classification to BU-2 with BDP addressing parking, retention and concrete wall as voluntarily offered by the applicant for Item 10. Motion carried and ordered unanimously.

Item 11. Douglas R. and Deborah Loseke?s request for CUP for security mobile home in AU zone on 7.5 acres located west and north of the west end of Iris Lane, which was approved by the P&Z Board for two years with three administrative renewals.

Motion by Commissioner Higgs, seconded by Commissioner O?Brien, to approve Item 11 as recommended by the P&Z Board for two years with three administrative renewals. Motion carried and ordered unanimously.

Item 12. Judith Frances Burke, Dennis Patrick Burke, and Peter Edward Burke, III?s request for change from RR-1 to TR-2 on 1 ? acres located on the west side of Dairy Road, north of Eber Road, which was denied by the P&Z Board.

Judith Burke requested the Board change the zoning to SR instead of TR-2.

Commissioner Higgs advised there is SR zoning to the north and south of the proposed property; and it would be consistent.

Motion by Commissioner Higgs, seconded by Commissioner O?Brien, to overrule the P&Z Board and approve SR for Item 12. Motion carried and ordered unanimously.

The meeting recessed at 9:05 p.m.

The meeting reconvened at 9:25 p.m.

Item 13. Panagiotis Mitropoulos?s request for CUP for alcoholic beverages for on-premises consumption in a BU-2 zone on 0.5 acre located on the south side of S.R. 520, west of Clearlake Road, which was approved by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner O?Brien, to approve Item 13 as recommended by the P&Z Board with stipulation that the CUP be for a restaurant only. Motion carried and ordered unanimously.

Item 14. Henry U. Parrish, Jr.?s request for change from AU to BU-2 on 3.82 acres located on the south side of S.R. 520, 0.36 mile west of Lake Poinsett Road, which was withdrawn by the applicant.

Chairman Cook advised Item 14 is withdrawn.

Item 15. Charles F. Posess, Trustee?s request for change from RU-1-7 to BU-1 on .235 acre located on the south side of S.R. 192, west of Seminole Boulevard, which was approved by the P&Z Board.

Motion by Commissioner Ellis, seconded by Commissioner O?Brien, to approve Item 15 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 16. Brent R. Doyle?s request for change from RU-1-13 to RU-2-15 on 0.4 acre located on the south side of Coral Way East, west of S.R. A1A, which was approved by the P&Z Board.

Brent Doyle explained the purpose for his proposed request for a change of classification from RU-1-13 to RU-2-15.

Commissioner Ellis inquired if there needs to be a Comprehensive Plan change; with Zoning Official Rick Enos responding the Comprehensive Plan is fine.

Motion by Commissioner Ellis, seconded by Commissioner O?Brien, to approve Item 16 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 17. James A. and Vicki G. Curry?s request for change from RU-1-11 to RR-1 on 1.32 acres located on the southeast corner of Ohio Street and Milwaukee Avenue, which was approved by the P&Z Board.

Motion by Commissioner Ellis, seconded by Commissioner O?Brien, to approve Item 17 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 18. Wayne and Cynthia Stewart and Ruth Ann Waring?s request for change from RR-1 to AU on 4.82? acres located south of the eastern terminus of Chicago Avenue, which was approved by the P&Z Board.

Motion by Commissioner Ellis, seconded by Commissioner O?Brien, to approve Item 18 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 19. Zoning Official?s Report:

Zoning Official Rick Enos stated the P&Z Board had a discussion at the end of its meeting regarding the lack of zoning meetings in December and June; specifically one member showed some concern if someone missed the deadline for the November meeting, then they would need to wait until the January meeting; such Board felt it was a inconvenience; and it made a motion and unanimously voted to request the County Commission reconsider its policy about no zoning meetings in June and December. He noted it is too late to have a December meeting this year; and requested the Commission reconsider it starting next June.

Item 20. Gold Crest Realty, Inc.?s request for change from RP to BU-1-A on .36 acre located in Section 18, Township 23, Range 36, which was tabled by the P&Z Board to its January 6, 1997 meeting.

Motion by Commissioner Scarborough, seconded by Commissioner O?Brien, to table Item 20 to the January 6, 1997 P&Z Board meeting as recommended. Motion carried and ordered unanimously.

Item 21. Pineda Crossing Corporation, a Florida Corporation?s request for change from PUD to BU-1 on 25.8 acres located on the west side of Wickham Road, north of Pineda Crossing Drive, which was approved by the P&Z Board.

Chairman Cook inquired if the applicant could include a buffer zone on the south boundary of the property adjacent to the residential lots.

Doug Robertson, representing the applicant, stated the applicant could agree to a 50-foot buffer.

Motion by Commissioner O?Brien, seconded by Commissioner Scarborough, to approve Item 21 as recommended by the P&Z Board, including a 50-foot buffer on the south boundary of the property adjacent to residential lots. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: EMERGENCY ORDINANCE PROHIBITING USE OF LIVE MAMMALS, REPTILES OR FOWL AS PRIZE FOR WINNING GAME

Chairman Cook called for the public hearing to consider an emergency ordinance prohibiting use of live mammals, reptiles or fowl as prize for winning a game.

Patty Earnest-Eldridge, Clare Gunde, and Marlene Smith expressed their support for the proposed emergency ordinance; and requested the Board adopt said ordinance.

Commissioner Scarborough suggested a clause be included in the ordinance that numerous communicable diseases can be carried by mammals, reptiles or fowl given away as prizes.

There being no objections heard, motion was made by Commissioner O?Brien, seconded by Commissioner Scarborough, to adopt Emergency Ordinance amending Section 14-55, Responsibility for Animals, Code of Ordinances of Brevard County, Florida; prohibiting the use of live mammals, reptiles and fowl as prizes for winning a game; providing for super majority vote; waiving notice requirement; providing priority for conflicting provisions; providing severability; and providing an effective date, as amended. Motion carried and ordered unanimously.

PUBLIC COMMENT

Lola Eshleman advised there is an ongoing boundary problem that exists in the entire Indian River Oak Subdivision; and requested the Board get the boundary problems straightened out. She stated it is keeping residents from selling their property which is not fair as they did not create the problem.

Commissioner Higgs stated this issue started before she was elected; a large file exists in her office; and she will be happy to forward it to the Commission. She noted there have been extensive meetings under several County Commissioners in regard to this; and she will provide the information to each Board member.

B. B. Nelson and Charles Moehle expressed concern regarding drainage issues west of I-95 and north of S.R. 50; stated they are trying to get the Indian River City Canal cleaned out, opened up, and the blockage removed; and requested the Board direct staff to complete cleaning the drainage ditch.

Discussion ensued on ditch maintenance, the St. Johns River Water Management District, Florida Department of Transportation, U.S. Fish and Wildlife Service, mitigation projects, Corps of Engineers, Department of Environmental Protection, and obtaining a report from the County Manager on the drainage issues.

Commissioner Scarborough suggested the County Manager provide a status report to each Commissioner regarding cleaning the drainage ditch.

Upon motion and vote, the meeting adjourned at 10:24 p.m.

MARK COOK, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

ATTEST:
SANDY CRAWFORD, CLERK
(S E A L)