December 4, 2003

The Board of County Commissioners of Brevard County, Florida, met in regular session on December 4, 2003, at 5:30 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chair Nancy Higgs, Commissioners Truman Scarborough, Ron Pritchard, Susan Carlson, and Jackie Colon, Assistant County Manager Peggy Busacca, and Assistant County Attorney Eden Bentley.

The Invocation was given by Commissioner Truman Scarborough.

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

REPORT, RE: CHRISTMAS PARADES

Commissioner Pritchard stated Saturday, December 6, 2003 at 10:00 a.m., the Merritt Island Holiday Parade will take place; Saturday, December 13, 2003 at 10:00 a.m. the Cocoa-Rockledge Christmas Parade will take place; and at 2:00 p.m. on December 13, 2003 will be the Cocoa Beach Christmas Parade.

Commissioner Colon stated the Palm Bay Christmas Parade will be Saturday, December 13, 2003 at 7:00 p.m. on Malabar Road.

Chair Higgs encouraged everyone to participate in the holiday activities.

RESOLUTIONS, RE: RECOGNIZING BILL AND RUTH WOLF AND THE FRIENDS OF THE
LIBRARY OF SOUTH BREVARD

Chair Higgs stated she has two resolutions recognizing the people who are helping with the addition to the library on the South Mainland.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to adopt Resolutions recognizing Bill and Ruth Wolf and The Friends of the Library of South Brevard. Motion carried and ordered unanimously. (See pages for Resolutions Nos. 03-312 and 03-313.)

RESOLUTION, RE: RECOGNIZING CAPTAINS’ TALE - EAU GALLIE YACHT CLUB

Commissioner Carlson read aloud a resolution recognizing the Captains’ Table - Eau Gallie Yacht Club of Brevard County on its 25th anniversary.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to adopt a Resolution recognizing the Captains’ Table - Eau Gallie Yacht Club of Brevard County in commemoration of its 25th anniversary. Motion carried and ordered unanimously. (See page for Resolution No. 03-314.)

Chair Higgs commended the group for its efforts and offered a round of applause.

A spokesperson of the group expressed appreciation to the Board for the Resolution Commissioner Carlson presented to the group.

PUBLIC HEARING, RE: ITEMS REQUESTED FOR TABLING OR WITHDRAWAL
FROM THE OCTOBER 7, AND NOVEMBER 10, 2003 PLANNING AND ZONING
AND NOVEMBER 13, 2003 NORTH MERRITT ISLAND DEPENDENT SPECIAL
DISTRICT BOARD AGENDAS

Zoning Manager Rick Enos stated there are a number of withdrawn items and items requested for tabling; and the withdrawn Items are IV.A.3, Sebastian Crossings, Inc. and IV.D.1, Raymond Stites. He stated the items requested for tabling are IV.A.1, IV.B.3, IV.B.11, IV.D.2, and IV.E.2.

Item IV.A.1. (Z0210501) William Turnbaugh, Trustee’s request for change from AU to RR-1 on 81.09 acres, located on the east side of Simon Road, south of Milwaukee Avenue, which was recommended by the Planning and Zoning Board for approval, and requested by the applicant to be tabled to the March 4, 2004 Board of County Commissioners meeting.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to table Item IV.A.1 to the March 4, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item IV.B.3. (Z0311501) R. A. Connor Paving, Inc.’s request for a CUP for a Solid Waste Disposal Facility (Air Curtain Incinerator) in an IU-1 zone on 26.18± acres located on the south side of Eau Gallie Boulevard, approximately 0.31 mile west of I-95, which was recommended by the Planning and Zoning Board to be tabled to the January 5, 2004 P&Z meeting and February 5, 2004 Board of County Commissioner meeting for re-advertisement.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to table Item IV.B.3 to the January 5, 2005 Planning and Zoning meeting and February 5, 2005 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item IV.B.11. (Z0310304) Charles R. Stack, Trustee, and Gene Kubicki’s request for a change from SR to EU-1 with an amendment to the existing Binding Development Plan on 178.69 acres located on the northeast corner of Valkaria and Weber Roads, which was recommended by the Planning and Zoning Board to be tabled to the January 5, 2004 P&Z meeting and the February 5, 2004 Board of County Commissioners meeting at the request of the applicant, with an 80% reprocessing fee required.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to table Item IV.B.11 to the January 5, 2004 Planning and Zoning meeting and the February 5, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

IV.D.2. (NMI31001) Taylor Properties of Brevard County, Inc.’s request for a Conditional Use Permit for Alcoholic Beverages on Premises Consumption in a BU-2 zone on 5.51 acres located on the east side of North Courtenay Parkway approximately two miles north of the Barge Canal, which was recommended by the North Merritt Island Dependent Special District Board for tabling to the January 8, 2004 North Merritt Island Dependent Special District Board and February 5, 2004 Board of County Commissioners meetings.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to table Item IV.D.2 to the January 8, 2004 North Merritt Island Dependent Special District Board meeting and the February 5, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item IV.E.2. Michael S. Stern, Sub. 50, Lot 1. Removal of Conditional Use Permit-9625 for Sale of Alcoholic Beverages for Consumption on Premises, which was recommended by the P&Z for tabling to January 5, 2004 Planning and Zoning meeting and February 5, 2004 Board of County Commissioners meeting.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to table Item IV.E.2 to the January 5, 2004 Planning and Zoning meeting and the February 5, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Mr. Enos stated staff is also requesting the two marina items be tabled, IV.B.8, Virginia Ann Tingley and Paul K. Hall and IV.B.12, M&W Pump Corporation and Eller Brothers Investments LLC.

Chair Higgs stated the applicants were advised of this; and inquired does the Board need to take any kind of action. Assistant County Attorney Eden Bentley stated the Board can table it without comment if it likes. She stated Items IV.B.8 and IV.B.12 are both marinas; there is a new Comprehensive Plan provision that came into effect Tuesday December 2, 2003; and the
staff comments do not address the new Comprehensive Plan provisions that are in effect. She stated the items need to be tabled so staff will have an opportunity to address the new provisions.

An individual from the audience stated he can address anything that is before the Board. Chair Higgs stated the speaker cannot address staff having the opportunity to review the comments.

Commissioner Scarborough stated one of the things the Board relies on is staff analysis; the staff does not have a proper analysis before the Board; and it would be inappropriate to move forward before getting the staff comments. He stated the speaker’s comments may or may not address the issues that need to be addressed. The speaker stated he has not heard anything from staff; with Commissioner Scarborough advising that is why the Board is tabling the items so there can be a staff report.

Commissioner Pritchard stated the Marina Siting Element was introduced into the Comprehensive Plan; it just became effective; and the Board has no choice but to table the items. He stated if the speakers spoke today it would be premature, and they would need to come back anyway.

Chair Higgs stated the Board does not have the necessary information; and she would support tabling the items. She stated the speakers can confer with staff.

Item IV.B.8. (Z0311203) Virginia Ann Tingley and Paul K. Hall’s request for Small Scale Plan Amendment (03S.12) to change the Future Land Use Map designation from Neighborhood Commercial to Community Commercial and change from RVP to BU-2 with a CUP for a Marina of 5.84± acres located on the north side of Tingley Drive immediately west of North Courtenay Parkway, which was recommended by the Local Planning Agency and Planning and Zoning Board for approval.

Item IV.B.12. (SPE31101) M&W Pump Corporation and Eller Brothers Investments, LLC’s request for change from BU-2 with an existing Binding Development Plan, and a CUP for a Marina, and IU to BU-2 and a CUP for a Marina on all, retaining the existing Binding Development Plan on Lot 7 only, on 3.88 acres located on the east side of U.S. 1, approximately 300 feet north of First Street, which was recommended by the Planning and Zoning Board for approval with a binding development plan.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to table Items IV.B.8 and IV.B.12 to February 4, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: TABLED ITEMS FROM THE APRIL 14, JULY 7, SEPTEMBER 8,
OCTOBER 7, 2003 PLANNING AND ZONING , OCTOBER 15, 2003 PORT ST. JOHN
DEPENDENT SPECIAL DISTRICT BOARD, AND NORTH MERRITT ISLAND
DEPENDENT SPECIAL DISTRICT AGENDAS

IV.A.1. Tabled earlier in the meeting to the March 4, 2004 Board of County Commissioners meeting.

Item IV.A.2. Villasol Realty Co.’s removal of conditional use permit Z-7909 for Commercial Borrow Pit on Parcel 754, which was recommended by the Planning and Zoning Board for approval.

Chair Higgs stated this was an administrative rezoning; everything is in order; and the Board should proceed.

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

Item IV.A.3. (Z0309301) Sebastian Crossings, Inc.’s request for change from GU and AU to RR-1 on 32.244 acres located at the western terminus of Iris Lane, north of Jonquil Lane, which was recommended by the Planning and Zoning Board for approval.

Item IV.A.3 was with drawn by the applicant.

Item IV.A.4. (Z0309107) Richard J. and Patricia A. Connolly, Peter Vander Haeghen, and Peter F. and Kristine A. Woldanski’s request for Small Scale Plan Amendment (03S.11) to change the Future Land Use Map designation from Residential 12 to Community Commercial, and change from RU-1-13 and RU-2-10 to BU-1 on 1.8 acres located on the east side of U.S., north of the northern terminus of Indian River Avenue, which was recommended by the Local Planning Agency and the Planning and Zoning Board for approval.

Rodney Honeycutt, representing the applicants, stated this item was tabled at the September meeting; staff was directed to do a study along the corridor; they did not think it was sufficient time to complete the study; but this was the last meeting of the year, and they could not schedule into the next year. He stated his clients are still willing to wait for the study; he understands it will be a little while because there is another study before it; and instead of asking for commercial, they would be willing to accept residential-professional zoning, which would leave the Comprehensive Plan intact. He stated the property is located at the southern end of the residential area; it is more commercial to the south; and to the north is spotted commercial. He stated staff commented that the commercial extension would intrude into the residential area; so they are willing to accept residential-professional zoning.

Commissioner Scarborough stated the Board was apparently doing two things; it was tabling this and getting the study; and there was an understanding that this would not come back until the study came back, so there may some people who were in opposition who left the room because they did not think it would come back until after the first of the year. He stated they have tried to contact people; but there is a procedural problem with taking a decision tonight as far as notice. He stated Mr. Honeycutt said he is willing to hold off until the study comes back; some misunderstandings were communicated; they tried to contact people; but he cannot assure that everyone was contacted.

Chair Higgs inquired if the intention is to wait for the study; with Commissioner Scarborough responding that is what the applicant has agreed to. Chair Higgs stated cards have been submitted by the applicants, Andrew Van Veen, Jeannette Elliot, and Richard Stanton; the intent is to wait to hear the item when the study is completed; and inquired if anyone wishes to speak at this time.

Commissioner Scarborough apologized for the confusion; stated this needs to be tabled to a time certain; and inquired when will the study be completed. Planner Todd Corwin responded the study will take approximately six months to complete; and suggested the item be considered at the May 2004 meeting.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to table Item IV.A.4 to the May 20, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item IV.A.5. (Z03007501) James E. (Jr.) and Joanne L. Bennett’s request for a CUP for Wild Animals in an RR-1 zone on 0.85 acre located on the west side of Ohio Street, north of Chicago Avenue, which was recommended by the Planning and Zoning Board for approval for the existing two wolves and two cougars.

James Bennett stated he is waiting for his counsel to arrive. Chair Higgs inquired if Mr. Bennett would prefer to wait; with Mr. Bennett responding yes.

Item IV.A.6. (PSJ31001) Alice A. Johns’ request for a change from AU to RU-1-13 on four acres located on the south side of Falcon Boulevard, west of Marvin Avenue, which was recommended by the Port St. John Dependent Special District Board for denial.

Attorney Chris Broome stated his client is unable to proceed at this time because they are still waiting for a witness; and requested the item be moved to the end of the Agenda; with Chair Higgs agreeing to defer the item.

Item IV.A.7. (NMI31002) Estate of Carol Wiggins’ request for change from AU to RU-1-7 with a BDP limiting density to four units per acre on 18.74 acres located on the east side of North Tropical Trail, south of Hall Road and north of the Barge Canal, which was recommended by the North Merritt Island Dependent Special District Board for denial.

Don McGee stated he is the applicant for the rezoning request; the subject property is an inactive orange grove located on North Merritt Island; it is comprised of 18.74 acres; and it is presently zoned agricultural. He stated the property is located between two completed subdivisions, Citrus Isle to the north and Sunset Lakes to the south; the original request was to rezone the property to RU-1-7, which was consistent with the Land Use Plan; however, they found there was a significant amount of concern on the part of the neighbors related to the size of the lots. He stated after meeting with the neighbors, they found there was still concern, so they have amended their request to EU-2. He stated EU-2 is the same zoning that is in place for Citrus Isle; and it requires 90-foot lots, which is what exists in Citrus Isle to the north and on the perimeter lots to the south at Sunset Lakes. He stated they have drafted a binding development plan calling for a maximum of four units per acre, which is consistent with the Land Use Plan; they included an age restriction prohibiting residents 18 years of age or younger; they arrived at the age restriction as a result of market research; there is very little product of this type in the area focusing on this age group; and they feel there is a business opportunity there as well as a service to the community. He stated they are proposing a private gated community that is age-restricted; it will have lawn and exterior maintenance built into the program; this concept is consistent with what they believe the public wants as identified by their market research; and the amenities may include a small clubhouse and a community swimming pool. He stated the concept plan they are working with yields approximately 45 lots, 90 feet wide by 150 feet deep; and it is a density of 2.4 units per acre versus the four units per acre that is allowed under the Land Use Plan. He stated the proposed EU-2 zoning is consistent with the Land Use Plan; and it produces lots that are virtually identical to those north and south of the property. He stated while it will not satisfy all the neighbors, they are doing everything possible, and are confident that the project will have a favorable impact on the area. He requested approval of the EU-2 zoning.

Celia Williams, representing the North Merritt Island Homeowners Association, stated she had many calls from members of the Association who object to the zoning change; many of the members expressed concerns about traffic; the increase in traffic density cannot be supported in a safe manner by the local roadway infrastructure; and the increase would add to the already overloaded SR 3 and North Tropical Trail, causing further traffic congestion and more accidents. She noted this is not supported by any numbers that have been done by a FDOT study; but it is supported by the members who have called in who traverse these roads; and they are the ones who know the traffic patterns and congestion on the roads. She stated in addition to the traffic safety concerns, there is concern over the water management on the property; the property does have ponds on it, which are used for retaining water like many groves properties on North Merritt Island; and this means the property is not truly 18.74 acres and should be reassessed for the true available land for development. She stated the surrounding homeowners reported they have numerous problems with water drainage on their own properties, which would only be exacerbated by over-development of the adjacent property; and they feel the proposed density would constitute over-development of the property. She stated members of the Homeowners Association who live nearby the property have expressed concern over their property values; many of them have larger homes on larger lots; and they feel putting smaller residences on smaller lots would have a detrimental effect on their property values, and that much less density, larger homes, and larger lots would be much more commensurate with what they have and would help to maintain property values. She stated several people have commented on the aesthetic aspects of the issue; North Merritt Island is a very rural area; many of the people who live there are working toward maintaining the rural aspect of the community; and it is a gem to be prized, treasured, and hopefully preserved by not allowing rampant development.

Commissioner Pritchard inquired if the callers were objecting to the new EU-2 zoning or the original zoning; with Ms. Williams responding the original zoning. Ms. Williams stated many of the people who called have suggested that they really would not want anything less than RR-1, which would be one unit per acre; and it is not like the property cannot be developed because he could put one home on every two and one-half acres. She reiterated the people have indicated that RR-1 may be acceptable; but anything more dense than that would not be acceptable. Commissioner Pritchard stated the EU-2 zoning is the same as the development on the north side, Citrus Isle; and inquired where is the incompatibility. Ms. Williams stated Sunset Lakes across the road has much larger lots; with Commissioner Pritchard responding he agrees, but this is on the east side. Ms. Williams stated they are still neighbors. Commissioner Pritchard stated the proposed development would be sandwiched between two developments that have compatible zoning and same size lots. Ms. Williams stated that may be correct; however, the Homeowners Association membership indicates an unwillingness to allow that to be developed in that heavy of a fashion because of the traffic and water drainage problems, and they feel the County infrastructure cannot support it right now. She stated if SR 3 was redone and the St. Johns River Water Management District helped to improve the water problems, it perhaps could support it, but right now, it cannot.

William Casey stated his property abuts immediately on the south side of the proposed development; when he first moved into his home, there was a beautiful orange grove there; but now there is an abandoned orange grove that is an eyesore with dead trees overgrown with weeds. He stated his property abuts the property, and weeds travel over and encroach on his property; the neighbors would love to see a beautiful orange grove there; however, they would not mind seeing a nice subdivision with well-maintained lawns. He stated he has water drainage problems; in heavy rains, his property gets flooded; and it comes from the grove. He stated he knows the way the St. Johns River Water Management District works; if this property was allowed to be developed with homes on lots about the same size as theirs, they would have to take the water and impound it; and that would actually help the properties on the north side.
He stated he is on an 80-foot wide lot, but has a very large home; he is on a smaller lot than the ones being discussed; and he cannot see anything wrong with it. He noted he will be directly affected because he is directly to the south.

Beverly Bishop stated she and her husband live in Citrus Isle and agree with Ms. Williams.

James Burrows stated he lives in Citrus Isle on the south side abutting the proposed neighborhood; and he is opposed to the rezoning. He stated one of the main concerns is the traffic congestion in the area; he drives out there every day; within a quarter mile there are presently three subdivisions, Citrus Isle, Island Estates, and Sunset Lakes; and the proposed development would be the fourth. He stated the entrance and exit will be on North Tropical Trail; so there would be four entranceways within a quarter of a mile, which creates stop-and-go traffic. He stated three-tenths of a mile north of this are two roads, Hall Road and Meadowlark; and again it is stop-and-go traffic. He stated there are also six new houses on North Tropical Trail between Citrus Isle and Hall Road, so within a little over a half-mile stretch, there are two roads, three subdivisions with entrance and exits, and at least eight driveways. He stated the traffic is all stop-and-go; and there are also curves on the road, which is dangerous. He stated he does not like the congestion further development will bring; an earlier speaker mentioned the rural beauty of North Merritt Island; that is why he moved there; and as he sees more and more development, he is considering moving out. He stated there has to be a stop or it is going to get built up and no one will want to live there. He stated the orange grove is a little overgrown and is not operating; but it is very nice with green trees; and he has never had a problem with it. He stated he agrees the second zoning is a little better; it is similar to Citrus Isle; but the traffic is still going to be a problem and it will still be ruining the natural beauty of Merritt Island. He stated he and his neighbors are all against it.

Michael Bishop stated he moved to the area two months ago; they chose to live there because of the beauty of the area, which is secluded but not desolate; and it is nice living there. He stated if the proposed subdivision is put in, it is going to crowd it; the houses are going to be close together; and there will be a lot more of them than there should be on that acreage. He stated on his street there are approximately 50 houses; the developer is proposing to put around 70 houses in the same amount of area; and it is going to be terribly congested with more traffic, and will spoil the looks of the area. He stated there are nice subdivisions around there; the area was growing very nicely; and the proposed development will be an eyesore in the middle of the scenic area.

Janie and Gary White declined their opportunity to speak.

Todd Pankuch stated he is on the board of directors for the Citrus Isle Homeowners Association; they have discussed this matter and walked around a voting form; and as a community of 51 homes that comprise Citrus Isle, they are opposed to the rezoning, even to EU-2, which is the same as Citrus Isle is today. He stated North Merritt Island is a limited commodity; there is not much land left to be developed there; and the rezoning, even to the same as Citrus Isle, in today’s environment is not necessarily conducive to the use plan that the majority of North Merritt Island residents want for the future. He stated Citrus Isle was developed five to eight years ago; and maybe it was the right-sized development for that point in time. He stated directly to their north is the Mitchell Ellington facility, which is yet to be started, but is going to be started in the next calendar year. He stated there are 400 parking spaces slated for Mitchell Ellington Recreational Facility; when 400 individuals leave their softball, baseball, or football games, there are two ways to get out; they can go up to SR 3 or they can come back to North Tropical Trail and traverse down to Grant Road; and neither of those roads is currently configured to handle that kind of traffic. He stated the proposed development under EU-2 would add somewhere between 50 and 70 homes; and they are not prepared infrastructurally to do that. He stated they discussed water drainage issues; Mr. McGee was instrumental in the development of Sunset Lakes and Island Estates, which both currently have drainage issues; the Homeowners Associations are currently in discussions with Mr. McGee on how to settle those issues that are due to poor engineering; and there is a track record of poor engineering on some water management on the developed properties. He stated they had a meeting with Mr. McGee to discuss an alternate plan; and the alternate plan is EU-2, which is being discussed now. He stated they were surprised that the flyer for that meeting was hand-stuffed into mailboxes and not mailed; they were not addressed, nor was there a return address; and he does not believe that is within the law. He stated there is a limited amount of land there; North Merritt Island does not want densely populated areas; what was good for Citrus Isle seven years ago is not what is good for the limited amount of land that is left; and as the board of directors for the 51 homes in Citrus Isle, they are opposed to the rezoning even to the EU-2 that is recommended. He stated this is a major concern to the North Merritt Islanders as evidenced by the turnout tonight.

Charles Grainger stated he and his wife Linda live in Island Estates, which is across the street from the proposed rezoning; they are members of the Sunset Lakes Homeowners Association; and they would like to share some information with the Board tonight.

Linda Grainger stated they made a substantial investment in this area, buying an acre and a half directly from Don McGee and Deerfield approximately three years ago, so they have a lot of experience from the past that they would like to share with the Board. She stated Island Estates was developed by Don McGee and Deerfield, and was engineered by BSE, which is the same company specified to do the property being discussed tonight. She stated they have personally witnessed the flooding problems caused by the inadequate engineering of stormwater drainage in this area; their homeowner association meetings frequently become arguments over seawalls and lake levels; and the homeowners association is still having issues with the developer over the flooding and inadequate stormwater engineering. She submitted a copy of the latest homeowners association newsletter to the Chair but not the Clerk, which indicates the issue is still being fought with the St. Johns River Water Management District and Deerfield Associates. She reiterated she has an acre and a half lot, which is specially engineered to be built on as is
by the developer; they personally confirmed by phone with BSE Engineering that it was built ready to go with no flooding problems; and they also contacted the County prior to building, discussed this in-depth, followed all the advice, and were assured the lot was properly engineered and the stormwater drainage was adequate. She stated they still have drainage issues on their property; and it is an acre and a half, not the size being discussed. She stated during heavy rains, water builds up on the front and sides of their property; it used to get very deep in the driveway so they had to put in a sump pump; and one can imagine what is going to happen on a smaller piece of property. Ms. Grainger stated the area surrounding her neighborhood will be very substantially impacted by the larger recreation park by noise, traffic, and lights from sports fields and events; and one can imagine how it is going to change the character of the area. She stated the rezoning should be denied because the subdivision and local area have inadequate drainage; even with one and one-half acre lots, they are having problems; and the road floods along North Tropical Trail where everyone must enter and exit their subdivisions. She stated traffic congestion on North Merritt Island keeps getting worse by increasing property density; the only areas left for building are orange groves; and inquired what kind of precedent is being set for those. She stated honesty, character, and integrity of the individuals and businesses in previous business activities are often the best indicator of the end results of their future activities; their homeowners association was left by Don McGee with inadequate operating funds; the homeowners association newsletter says, “when we took over the homeowners association in 2002, we were in the red by about $2,000 this year”; they hate to see another subdivision heading in this direction; and they paid several special assessments since that time to keep the homeowners association operating. She stated when they first reviewed their property in Island Estates, they were concerned about the vacant lots being developed in the future by Damar Homes, which seems to buy almost every one of Don McGee’s and Deerfield Groves’ developed properties; they did not want to build a custom home in a neighborhood that would be filled with tract homes; they trusted Mr. McGee when he told them personally the neighborhood was being sold mostly to individual buyers for custom homes; but shortly after they bought their lot, Mr. McGee sold a substantial number of those same lots to Damar Homes, so she thinks there was a plan and he lied to them. She stated Mr. McGee acted as the sole architectural review committee when he allowed the sole builder, Damar Homes, to overbuild Phase 10 with townhouse-type row houses; there are 27 with the same floor plan in one block; and they are all similar oversized two-story models, which is an insult to the previously built homes in the neighborhood. She stated Mr. McGee cannot say that was the builder’s problem because he was the architectural review committee and allowed this to happen. She stated this was not the desired intent; and urged the Board to follow the recommendation of the North Merritt Island Dependent Special District Board and vote no.

Richard Stanton stated he will relinquish his time.

Fred Billow stated he is opposed to the rezoning for the reasons noted by the Homeowners Association.

Geraldine Billow stated she agrees with Ms. Williams and the others.

Mike Leitzen stated he lives on a lot that directly abuts the orange grove; and he is also a board member of the Citrus Isle Homeowners Association. He advised he is opposed to the rezoning for several reasons; and the number one concern is property values. He stated even at the new zoning, which they were not notified of until this meeting, it would allow for homes of 1,500 square feet; and taking the average of the two neighborhoods directly north and south, the homes average 2,000 square feet, so there is an extreme concern for the size of the homes that are going to be put on this property and what they will do to the other homes around them. He stated Island Estates homes are even larger at 3,000 square feet; some of them were shown a proposed plan of the potential subdivision; and in the plan there is no sound abatement or privacy common areas between Citrus Isle and the new subdivision. He stated he defies anyone to find where there are two subdivisions where the entire length of each subdivision is directly fence-to-fence, back-to-back, with no type of barrier; and the intent of North Merritt Island has always been a rural type nature and not a city-type dense zoning. He stated a real concern is the condition and design of North Tropical Trail; it is a relatively narrow country-type road; it was never designed for a larger volume of traffic; and it is not in good shape. He stated during rainfall, it floods in many areas; the road is stretched to capacity now; and adding another subdivision is going to make things worse. He stated there is also a concern in the neighborhood about the stormwater system; the plan he saw looked like it would have to drain through his community; and their system cannot handle the additional flow of water. He stated the proposed binding development for age 55 and up raises some real concern in terms of frequency of emergency vehicle traffic and sirens at all hours of the night; and advised there is no emergency medical services for people on North Merritt Island. He reiterated he is opposed to the rezoning.

William Palla stated he is also on the board of directors and is acting vice president of Citrus Isle Homeowners Association; and reaffirmed they are against the rezoning. He stated he is representing the neighborhood of 51 homes.

Kelly Macias stated her home abuts the orange grove; she is a board member of the Citrus Isle Homeowners Association; she has talked to approximately 40 homeowners in the development; and not one homeowner has been in favor of the development. She stated the neighbors are concerned about what was originally proposed by Mr. McGee; they could not see anything smaller than what Citrus Isle is; and most of the people have voiced that they would want even bigger lots. She stated she heard that north of Hall Road is not going to be sold in anything less than half-acre parcels; if that is true, she does not understand why this orange grove, if and when it is developed, would be developed at anything smaller than half-acre lots; and considering all the problems with traffic and water, she is opposed to having the orange grove developed.

Mr. McGee stated obviously the level of concern is significant; people have referred to traffic concerns and drainage concerns; those issues are part of the County-approval process; and they will be required to get the necessary approvals on all of those issues. He stated as far as zoning is concerned, a couple of people referenced the number of units; 72 units was the RU-1-7 plan; and as he mentioned, 45 is the density they are looking at with the 90-foot lots, which compares to the 51 lots in Citrus Isle. He stated someone commented on house size; the EU-2 zoning permits a minimum of a 1,500 square-foot house; that is the same as Citrus Isle; but market conditions will prevail; the average house in Citrus Isle is more like 2,000 square feet; and he sees no reason to expect that would be any different in this case. Mr. McGee noted the trend has been for houses to be larger, not smaller.

Commissioner Pritchard read aloud a letter into the record from Barbara Benn who lives in Sunset Lakes, as follows: “I’m unable to attend the meeting tonight; however, I feel it is imperative to voice factual experience that I’ve had with the developer and engineer, namely Mr. Don McGee and Scott Glaubitz that are involved in this project, the sum of ten years worth of problems with these people. I must tell you the development of Sunset Lakes is one of their projects and to this day there are many serious problems that these men have not responded to, and the result is that litigation is currently in progress to attempt some resolution and satisfaction. This is not an opinion. It is recorded with St. Johns River Water Management District who are currently also trying to get these men to take responsibility and having difficulties doing so. Their level of cooperation is horrible once the project is completed. This project is very unpopular with the residents in North Merritt Island, and the fact that their track record of the two million people involved gives additional reason for the project to be suspect. The request for reclassification should be denied.” He stated he has spoken to many of the homeowners in the area; he lived in Sunset Lakes for a while, but moved further south; and he travels Tropical Trail frequently. He noted what is being said is true; there are problems, especially flooding problems; and expressed concern about the not-in-my-backyard attitude, in that people move in and then say that is enough, we don’t need to have any more. He stated there is a valid concern that people who live in the area are experiencing flooding problems; it is a stormwater issue; the proposed development would exacerbate the problem; and for that reason, he does not think they should move forward with this. He stated the Board should deny the item and wait until situations improve regarding the current drainage problems and other types of projects are projected for the land. He stated the property will get developed at some point; and recommended looking realistically at what is going to happen there. He stated the property is sandwiched between two other parcels; something is going to happen; but stormwater retention and drainage are issues that need to be addressed; and until they are addressed satisfactorily, not only to the County but to the neighborhood, the rezoning should be denied.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to deny Item IV.A.7 as recommended by the North Merritt Island Dependent Special District Board. Motion carried and ordered unanimously.

Item IV.A.8. James E. Stone’s removal of conditional use permit Z-8423 for Commercial Borrow Pit on Lots 1, 2, 4, 5, 7, Tracts, A. B. and Parcels 757, 760, 767, 769, and 770, which was recommended by the North Merritt Island Dependent Special District Board for approval.

Motion by Commissioner Pritchard, to approve Item IV.A.8 as recommended by the North Merritt Island Dependent Special District Board.

Commissioner Carlson stated in the briefing staff said there was a potential issue regarding taking the CUP off certain parts and leaving it on others. Mr. Enos stated one of the reasons this was tabled was because part of the property is owned by Mr. Stone; he has asked for it to be tabled; and he objected to removal of the CUP on three of his several parcels, which are on the northwestern part of the property outside of the subdivision.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve Item IV.A.8 as recommended by the North Merritt Island Dependent Special District Board, except for Parcels 757, 769, and 779. Motion carried and ordered unanimously.

ANNOUNCEMENT

Chair Higgs announced there is a maroon Oldsmobile 98 in the parking lot that has its lights on.

PUBLIC HEARING, RE: TABLED ITEMS FROM THE APRIL 14, JULY 7, SEPTEMBER 8,
OCTOBER 7, 2003 PLANNING AND ZONING , OCTOBER 15, 2003 PORT ST. JOHN
DEPENDENT SPECIAL DISTRICT BOARD, AND NORTH MERRITT ISLAND
DEPENDENT SPECIAL DISTRICT AGENDAS (CONTINUED)

Item IV.A.5. (continued)

Priscilla Rosenberg stated she is counsel for Jim and Joanne Bennett for their application for approval of a CUP for their two cougars and two wolves, which they keep on their property in West Melbourne; they originally applied for the conditional use permit for the animals in 2000; it was denied in 2001; and they took it on appeal to the Circuit Court, which overturned the denial of the CUP and sent it back for rehearing. She noted she sent everyone a letter providing a summary of the situation along with the exhibits; she sent it by mail rather than faxing it; and the letter covered all of the points necessary for a favorable decision on the conditional use permit application. She stated the Circuit Court held that the prior wild animal Ordinance in the County was unconstitutionally vague, and therefore the CUP could not be denied to the Bennetts and no future version of it could be enforced against the Bennetts. She stated the court did hold that the general criteria of 68-1901, which is the general CUP criteria, could be considered as far as changes to the neighborhood regarding odor, noise and other issues; and that other general issues could be considered. She stated they went back and looked at those issues and what the Planning and Zoning Board had concluded regarding those issues in prior and present circumstances; and the only real issue was the howling of wolves on certain limited occasions. She stated the volume of the howling is nothing compared to the barking of dogs in the neighborhood; and the odor of the animals’ urine and feces is minimalized by the fact that the animal cages are cleaned once a week and the solid waste is disposed of once a week like a litter box. She stated this is an area that is cleared for horses; horses’ waste is not cleaned up on a weekly basis; and that smell permeates the area on various occasions to a far greater degree than the odor from the Bennetts’ animals. She stated the third exhibit to her letter is letters and petitions from hundreds of people who are pleading on the behalf of these animals to let them remain in the care and control of the Bennetts because of the good educational purposes they have served. She stated one of the letters was from someone who had previously been frightened by what she heard; when she met the animals and introduced her children to the animals, she was quite impressed; and she has since brought the children over on several occasions to see the animals. She stated it is under controlled circumstances; the animals are double caged and not let out to run around with the children; the woman has changed her opinion of the situation completely; and her letter is enclosed. She stated during the June meeting with the Board, there was mention of someone from Animal Control coming over to see the Bennetts and look over the situation; but neither she nor the Bennetts have had any contact with anyone from Animal Control; and as far as she knows, no one has come over to look at the animals. She stated all required permits are current and in full force and effect at this time; and as the Circuit Court ordered, they are present to answer any questions so the Board can give this matter a full consideration of the facts. She advised the court said there had to be a place other than a zoo in the County where wild animals are permitted to be kept; and this is a case where the Bennetts are outside the Wild Animal Ordinance that has been redrafted because of the unique factual situation that they are appealing to the old Animal Ordinance.

Mr. Bennett stated the Florida Fish and Game and Wildlife Commission is usually out to his location twice a year to inspect the cages and animals, make sure the health records are up to date, and observe that the animals are kept in the fashion they should be. He stated he has talked to the State employees on several occasions, and was assured that the caging and facility he has is far greater than most zoos. He stated most of the neighbors are in harmonious reaction with the animals; they come by if they feel a need to; and he has always kept an open door policy. He stated there is some howling with the wolves occasionally; and most people he talked to enjoy that howling as it gives them more of an open country sound, and is a sound of the wild as opposed to dogs barking all the time.

Commissioner Colon stated the attorney mentioned Section 68-1901 in relation to noise, etc; however, it is Section 62-1901.

Penny Hemming stated not all of the neighbors that she spoke to could be present tonight; and Terra Faubel gave her a letter to read aloud on her behalf. She read aloud, “I’m not able to attend today due to work but I would like to express my concerns about this matter. The back of my house faces the yard where the animals are kept so I constantly hear loud noises and actions of the animals. This time of the year we have our windows open only to hear howling at all hours of the night. This howling will continue for hours. During the day, there are constant yelps from the exotic birds, which sound something like them being killed. Again, this will go on for hours. Those types of sounds are not very pleasant when sitting on your porch outside trying to enjoy your pool. I really feel that the animals deserve better treatment. There are numerous actions that I have witnessed from my kitchen window by their teenagers, beer cans being thrown at cages, loud fireworks, etc. that make me feel that the animals are not properly cared for. That said, you have to wonder about our safety and the fact that the animals are getting out in this neighborhood. You cannot know what an animal will do when it is scared and out of its environment. Please have the animals removed for our safety and for the wellbeing of the animals. I do not support letting the animals stay. Thank you for your time and consideration. Terra R. Faubel.” Ms. Hemming stated she lives directly behind the Bennetts and also opposes the conditional use permit for many reasons, but most of all because she believes that wild carnivores do not belong in residential neighborhoods, but in zoos or well-run rescue habitats. She stated the large wild carnivorous animals are kept in small cages in the small backyard area; her yard, with the exception of the building pad, has been kept in its natural state of palms and palmettos; and she had to give up her dream of creating paths and putting a gazebo out there because even though the Bennetts have erected a privacy fence, it is still possible to see a lot of crates and cages and there are loud noises. She stated sometimes the animals can be heard inside with the air conditioner and TV or radio on; that is how loud it can get; it is an excessive noise level; and unlike domestic animals, which can sometimes be controlled, the Bennetts cannot or do not control these animals. She stated it is not just the wolves as there is an unusual noise made by the cougars that is a woofing or panting noise that she hears. She noted on occasion she has found fecal matter on her side of the fence; and she has worried about her dog running back there and possibly being injured. She stated sometimes when she is sitting on her porch she hears mournful cries, and it is hard to enjoy herself because she feels sorry for the animals. She stated at night she has been awakened by the howls; they do not quiet down; and sometimes it goes on for quite some time. She advised of the hundreds of people that were mentioned who were pleading for the wolves to live there, none live behind the wolves; wild animals cannot be controlled like domestic animals; and some place other than this small residential area would be a better place to keep the animals. She urged the Board to deny the conditional use permit so she may enjoy her backyard.

Carmen Santiago stated her concern is not so much how the animals are cared for or how they are caged but their location in the middle of a residential area; she lives within 500 feet of the location under consideration; and she opposes issuance of the conditional use permit for the wild animals. She stated the forced presence of large carnivorous wild animals in a residential area in close proximity to small children, pets, and other domesticated animals is unnecessary and dangerous; and any educational benefit does not justify their presence in the neighborhood. She stated the confinement of large wild animals in rather small cages is unnatural and inhumane; they have heard the animals howling; and they did not sound contented. She stated by nature, the animals would try to escape; and they do not want to have to worry about that possibility. She requested the Board not approve the permit.

Ms. Rosenberg stated the bird is a cockatoo; it was bought in a pet shop, and so is not an exotic bird; and it is Mrs. Bennett’s domestic pet. She stated they were told by Fish and Wildlife that the cages Mr. Bennett built in the backyard are far greater than required; and the cougars and wolves have cages and runs.

Jim Bennett advised the State of Florida requires a 10-foot by 20-foot cage for each exotic animal that falls under Class 2 wildlife permit application; he only has two animals in each cage unit; and the wolves are in a cage that is 14 feet wide, 8 feet high, by 60 feet long, which is far greater than the State requirement and much larger than zoos have for these types of animals. He stated the cougars are in a cage that is approximately 30 feet by 45 feet; and they have runs. He stated the cougars go into their dens for security during stormy weather; and their cage is 12 feet high, made out of nine-gauge chain link fencing. He stated he understands the concern for the wild animals possibly getting out and chasing the neighbors’ dogs or cats; that has been an issue for most of his neighbors for quite a few years; but they have been there for seven years without incident. He stated in the environment they are in, the wolves occasional howl; they hear them in the front yard, and that is their way of calling them; and the cougars make a chirping sound, and do not roar like a lion or tiger. He stated these are not breeding pairs of animals, so they are not looking at possible offspring being at this location; and once the animals are gone, they are gone.

Ms. Rosenberg stated the animals have been there since 1997 and 1998 without incident; there has never been an escape; and as the animals get older, they are more set in their ways and lethargic; and they do not anticipate they are going to get more spry as they get older.

Mr. Bennett stated he has no problem if the neighbors who have complaints come to see the animals; in regard to teenagers throwing beer cans at cages, he has two sons; he is not saying they do not have get-togethers in the backyard; they may have had the radio on loud enough for the neighbors to notice there was a party; but he is there most of the time and would never accept any kind of behavior like that with the animals.

Commissioner Colon stated she does not support the CUP; they are concentrating on Section 62-1901; and it was confirmed that there are two wolves and coyotes. She stated the first call they received was on March 30, 2001 in reference to the Bennetts possessing exotic animals identified as wolves and coyotes without proper permits; and there are letters that will be put as testimony. She stated one of them says this is definitely a neighborhood; this is an irresponsible request; and granting it would be equally irresponsible. She stated another letter says if a wild animal has to be kept in captivity, its environment should be as close as possible to the environment in the wild, as in zoos, etc., and not in neighborhoods. Commissioner Colon stated another writer advises they hear the animal cries; and another writer advises that most annoying is the frequent loud mournful and forlorn howling of the animals, which is specifically disruptive late at night or in the early morning hours. She stated another writer says as a member of the community living 500 feet from the subject property, she strongly opposes the issuance of conditional use permit for wild animals, and urges the Board to vote against such permit. She inquired if Ms. Bentley has anything to add; with Ms. Bentley advising she has nothing to add; the Board is considering the item under Section 62-1901; and it cannot consider the dangerous aspect of the animals because Section 62-1958 was stricken by the court.

Motion by Commissioner Colon, seconded by Commissioner Scarborough, to deny Item IV.A.5 as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

Commissioner Carlson inquired if a finding of fact is needed; with Ms. Bentley responding if the Board likes, she can do one. Commissioner Carlson stated she was asking for an opinion; with Ms. Bentley responding it would be simpler. Chair Higgs suggested it return on the Agenda at the first meeting in January 2004. Ms. Bentley stated usually they get them done, and then bring them to the Board; but if the Board would like a specific date, she can do that.

The meeting recessed at 6:50 p.m. and reconvened at 7:01 p.m.

Item IV.A.6. (continued)

Chris Broome, representing owner Alice Johns, stated applicant Ken Ward is present.

Rochelle Lawandales, Lawandales Planning Affiliates, submitted documents to the Board; and stated as a professional planner, she was asked to evaluate the proposed rezoning for consistency with the Comprehensive Plan, Codes, and compatibility with the area. She stated the Comprehensive Plan designates the area as R-4; and there are specific provisions in the Plan that talk about approving zoning that provides transition. She stated the application was amended from RU-1-13 to EU-2; EU-2 zoning provides for a sound transition; and the proposed rezoning is compatible with the adjacent area. She stated the parcel map and the aerial map show that the area is developed; it is predominantly developed at four to five units to the acre on the east side; between the parcel and the east there is a 50-foot canal and a row of trees; and to the west is AU and 2.5 acres, separated by a 68-foot right-of-way. She stated the density varies in the entire area; consequently a 14-lot subdivision would be consistent with the overall development pattern. Ms. Lawandales stated they have proposed a binding development plan to further assure suitability to the area; the zoning request was changed to EU-2; they have large lots limited to 12,500 square feet with 94-foot frontage; and there are buffer areas provided, a ten-foot landscape strip, improved roadways and driveways, and common maintenance of stormwater facilities. She stated if required to do lighting, they will do low-level lighting; school capacity is not an issue; and documents have been provided to the County by the Department of Education and the School Board of Brevard County to indicate there is capacity at the area schools, Enterprise Elementary and Space Coast Middle and Senior High. She stated there would be approximately 180 feet between homes; and therefore there would be no impact from the subdivision development on any of the adjacent or surrounding areas. She advised they have tried to address all the issues that have been raised; and thanked Commissioner Scarborough for bringing everybody together in his office. She stated subsequent site visits will address drainage issues as well as any other development issues that may arise onsite; this project would be consistent and compatible with the surrounding area; and requested the Board’s consideration and approval.

Commissioner Higgs stated she discussed this issue on the phone this week.

Mr. Broome inquired if Ken Rose, Total Engineering Alliance, prepared the report in the package regarding drainage; with Mr. Rose responding he did. Mr. Broom inquired if there are any adverse impacts regarding drainage in the area; with Mr. Rose responding no, it is adjacent to a regional outfall, and there is no historical evidence of flooding of the property. Mr. Rose advised he talked to residents downstream at the regional outfall who indicated no historical drainage problems; and onsite drainage would be segregated and remain onsite with the designated stormwater management system that would have to meet the criteria of both the Water Management District and the County’s Land Development Codes. He stated with the design, site visits, and meeting in Commissioner Scarborough’s office, they have indicated to the two individuals who are showing an interest that the project would, in its drainage design, try to work and alleviate any localized problems the individuals may have on their property; and the development of the parcel would not have any effect on drainage.

Mr. Broome introduced Alice Johns, owner of the property.

Alice Johns presented a Warranty Deed showing title; and stated when she purchased the property two and a half years go, she had two options, to build her own home or to save the property for future investment; but due to unforeseen medical problems and the fact that her daughter is now in college and she is a single parent, she has decided she needs to sell the property now. She noted she is not making any profit off it; she is only asking the builders for what she put into the property; and she wants to unload this burden. She stated if the zoning is granted, it will enable her to sell the property and handle the financial issues that could possibly be coming for her down the line. Ms. Johns stated if the rezoning is not granted, she cannot sell, and is not sure what she is going to do with it. She stated she has lived in Port St. John since 1984 when there was nothing; it is a growing community; and they can help it by trying to maintain the proper builders. She stated if this does not happen now, when she goes through this again in a year or two, there is no telling what kind of builders might get the zoning; the new builders who have just been welcomed into the Port St. John community are willing to change the zoning from what could have been 16 houses to 14; and they are willing to give driveways and put up a hedgerow. She stated they have done everything they can to be compatible; she cannot say that other builders out there would be that willing to help; and requested the Board consider her request because all of the criteria before them has been met and there are no other problems.

Mr. Broome stated the information has been provided to the Board in packages; in accordance with the County’s Future Land Use Map designation of RES 4, the binding development plan provides for 3.5 units per acre; so it is in compliance with the Future Land Use Map. He stated the rezoning would be compatible with the zoning to the north, south, and west of the parcel; and documentation has been presented that there is no issue with regard to density, drainage, and school capacity.

Jay Shaw stated he lives directly to the west of the proposed development; and thanked Commissioner Scarborough for holding a meeting in his office to try to reach some compromise. He stated he and Mr. Sylvia do not have the pleasure of having a professional engineer, planner, developer, or lawyer; but they are opposed to this. He stated there is still some question as to the school density; the voters voted to lower the school density; and Enterprise, which is the receiving body, is at 124%, although there were other numbers that say it is not at capacity. He stated the proposed development may be compatible with the houses on the east, which are basically tract homes, but they are not part of Port St. John; and their lots are 2.5 acres zoned agriculture. He stated they are not opposed to her building at the present zoning density of one house per acre; but they are opposed to 14 units per acre.

Louis Sylvia thanked Commissioner Scarborough for having the meeting in his office; and stated he has the same concerns as Mr. Shaw. He stated he cannot believe they are saying it is compatible with his property; and he and Mr. Shaw offered the compromise of one house per acre or four houses, which is still a 400% increase over one house. He stated he has the Planning and Zoning comments that say the school capacity under the new vote is over capacity. He stated he understands drainage does not come up on rezoning items, so there is no sense talking about it.

Ken Ward, RCI Building and Development, stated he is present in support of the request; they are working to solve all the obstacles; and he spoke to the neighbors to the immediate east, which is just on the other side of the canal, and found the people to be for the rezoning. He stated the people ranged from being glad they would not have snakes coming into their yards to having no opinion; but there is no great outcry from the east side, which would be looking at the rear of the new houses. He stated they have tried to work with Mr. Shaw and Mr. Sylvia.

Mr. Broome stated the evidence would support the rezoning from AU to EU-2; and it is consistent and compatible with the Future Land Use Map. He stated concerning the issue of level of privacy that Mr. Sylvia and Mr. Shaw raised, that will be maintained with the landscape boundary; and in terms of schools, Mr. Enos has already provided the Board with a copy of clarification of the school capacity data, which shows that the populations at Enterprise Elementary and Space Coast Middle and High school are not over capacity, so at this time, that is not an issue. He stated the zoning classification is consistent with that around it and with the Future Land Use Map; and requested the County grant the rezoning request from AU to EU-2.

Commissioner Scarborough stated they did have a meeting and were able to define the issues, but were not able to come to any consensus. He stated he will go through the three issues, schools, drainage, and compatibility; and requested Ms. Sobrino advise everyone of the substance of her memo. Assistant Zoning Manager Robin Sobrino stated according to the School Board at this time, the Board should be considering capacity based on the student accommodation plan that was published in April of the past year; in September they were given updated capacities that were reflective of the school classroom size amendment that reduced classroom capacity; however, there has been a challenge to that rule; and therefore, the School Board recommended the Board continue using the student accommodation plan numbers in the April publication. She stated there has been a change in data through the history of this application; and at the current time, the schools serving this area will have capacity. Commissioner Scarborough stated it sounds crazy to consider the school capacity for the moment. He stated Rene Davis from his office and Regional Stormwater Utilities Director Ron Jones went out and looked at the drainage issue; and he does not know if anything needs to be said about drainage at this moment. He stated he would like to address the compatibility; and inquired going east to Port St. John, how many units would there be to the acre; with Mr. Enos responding generally four units per acre. Commissioner Scarborough stated moving to AU zoning, there is one unit on 2.5 acres; with Mr. Enos advising that is correct, and it would be approximately 0.4 unit per acre. Commissioner Scarborough stated they are giving the transition of 3.5 units per acre; 2.5 units per acre would be a movement from four units an acre; and a transitional movement would be something more compatible with the other. He stated with a recommendation to the Board for denial, unless there is a desire on the part of the applicant to offer something as an alternative, he would be moving for denial. He stated if the applicant desires, he has some specific language that needs to be added to the binding development plan. He inquired if the applicant wants to offer something. Ms. Johns responded
her property is currently bordered on the west by 66 feet of road right-of-way; and down the middle of that right-of-way to the east over is all zoned RU-1-7. Commissioner Scarborough inquired if Ms. Johns does not want to amend her request; with Ms. Johns responding no.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to deny Item IV.A.6 as recommended by the P&Z Board. Motion carried and ordered unanimously. (See pages for Zoning Resolutions.)

PUBLIC HEARING, RE: ORDINANCE AMENDING PUD ZONING CLASSIFICATION TO
ESTABLISH DRI SUBCLASSIFICATION
Chair Higgs called for the public hearing to consider an ordinance amending PUD zoning classification to establish DRI subclassification.

Commissioner Carlson stated if all the Commissioners have been briefed on the DRI sub-classification, she would like to move the item.

Chair Higgs stated this is the first hearing on the DRI change of regulations.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to move the proposed ordinance to amend the PUD zoning classification to establish DRI subclassification forward to the second public hearing scheduled for December 16, 2003. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RECOMMENDATIONS OF THE PLANNING AND ZONING BOARD
OF NOVEMBER 10, 2003

Chair Higgs called for the public hearing to consider the recommendations of the Planning and Zoning Board, made at its November 10, 2003 meeting, as follows:

Item IV.B.1. (Z0311401) Dilson Souza Caputo’s request for change from RR-1 to EU on 0.63 acre located on the east side of Turtlemound Road, approximately 600 feet south of Parkway Drive, which was recommended by the Planning and Zoning Board for approval.

Dilson Caputo stated the existing house on the property was rented for 18 years; the tenant just moved four months ago; at that time he requested a builder to assess the situation of the house; and the house is totally infested. He stated the house has not had a roof in at least five years; it is termite-condemned; and as it was not built on a slab, the only alternative was to build a new house on the property. He stated the new house would enhance the neighborhood and the tax base; and requested the Board consider rezoning from RR-1 to EU as there are several properties on the street below RR-1.

Chair Higgs inquired how long has Mr. Caputo owned the property; with Mr. Caputo responding approximately six months.

William Chilcott stated his property is adjacent to the north and east of Mr. Caputo’s property; he also has a residence that was built at the same time as the house on Mr. Caputo’s property, which is in disrepair; and something needs to be done with the property. He stated if the Board approves the zoning change, it should also apply to his property as well if he applies for it. He stated a comment was made at the P&Z meeting that they did not want to make it the standard for the area for unconventional lots of this size in Lake Washington; and he wanted to bring that to the Board’s attention. He stated if it is approved, he will also request a zoning change so he can build; and commented on the age and condition of the house on his property. He noted he does not agree or disagree with the zoning change.

Commissioner Carlson stated it appears the lots were built on prior to the Zoning Code coming into existence; then the lots were split illegally so they could be sold; they are illegal lots of record; and this would introduce different size lots into the area. She stated the Future Land Use Map identifies the various designations; the lot sizes are pretty obvious; and the lot in question is the smallest of those around it. She inquired what has the Board done historically on illegal lots to make them legal. She stated she was told that the applicant would need 0.37 acre to make it a legal lot of one acre. Ms. Bentley advised the Board has done a variety of things; it has required the applicants to obtain additional property to make the lot the legal size; it has simply not approved at the current lot size; there have been instances where variances have been granted to the lot size requirement; and in other instances, rezonings occurred, so it is the whole spectrum.

Mr. Enos advised the other option may be vested rights determination; there is a provision in the vested rights Code that would allow consideration of single houses that are older on illegal lots; and if that option is considered, it would not change the zoning, but the Board would have the opportunity to look at the vested rights option.

Chair Higgs inquired when was the lot divided; with Mr. Enos responding in 1977, but the homes were built before 1958.

Commissioner Carlson stated they were split in 1977 in order to sell the homesteads; with Mr. Enos advising that is right; there were two houses on one parcel prior to that; and they were split in 1977. Commissioner Carlson stated she has a concern about introducing smaller lot sizes and setting a precedent of that nature; she would not mind going through the vested rights process so the Board could hear additional testimony; but she would like to hear from other Commissioners. Commissioner Scarborough stated he can support that.

Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to deny Item IV.B.1, and suggest the applicant pursue a vested rights determination. Motion carried and ordered unanimously.

Item IV.B.2. (Z0311402) William B. Ferrell, Sr., as Trustee’s request for change from GU and PUD to AU on 390 acres located at the northern terminus of Washingtonia Drive, west of I-95, and north of the Chestnut Run Subdivision, which was recommended by the Planning and Zoning Board for approval with a binding development plan.

Attorney John Evans submitted materials to the Board and Clerk.

Chair Colon stated she met with the applicant.

Mr. Evans stated he submitted a booklet of information; and there are affidavits and things like that, which he wishes to get in the record. He stated he represents Ben Jefferies; they were before the Board three months ago regarding Lake Washington Subdivision, requesting the PUD zoning be confirmed; the Board voted that the PUD zoning was not in existence any more; and this means the property, which would have been allowed to have 270 units now has no zoning whatsoever. Mr. Evans stated they have a request before the Board tonight for AU zoning with a binding development plan; the Board has to grant some form of zoning because if it does not, it is a taking of the property; and the property owner is entitled to some zoning on the property so he can market it. He stated the binding development plan they submitted relates to AU zoning that was requested and not GU that might be given by the Board. He stated they are requesting a maximum of 170 lots or .4 unit per acre, which is a very low density; they are requesting to develop with the Open Space Ordinance that will leave 50% of the project for open space; and they are requesting a minimum home size of 2,800 square feet, which would be larger than most of the homes in the area. He stated they agree to leave a natural buffer next to the Chestnut Run Subdivision of 20 to 100 feet; the binding development plan specifies they would like to move the ditch to the south; if they get permits to do that, it would leave 100 feet of natural buffer between Chestnut Run and the property; and the project could increase the drainage for both subdivisions. He advised they have agreed to make a voluntary contribution of $1,500 per unit to the School Board because there is an issue of whether or not there is a capacity at the junior high. He stated they made two changes since the Board last saw the binding development agreement; and one is that they agree to make the payment at the time of the pulling of the building permit rather than the recording of the subdivision plat. He stated he discussed this with Ms. Bentley and there is some question of whether or not they can force the School Board to do anything, so they are requesting the funds be put in escrow with the County to allow the County to negotiate with the School Board on the proper use of the funds. He stated it would be their desire that it be used for capital improvements; but they will leave that up to the Board. He stated they agree there will be no agricultural uses within 300 feet of Chestnut Run so there will be compatibility of deed restrictions and the uses between the two subdivisions; they have met with the neighbors on two occasions; and Henry Minneboo is present to discuss the results of those meetings. He stated they have addressed the majority of the residents’ concerns; and Rochelle Lawandales has submitted an affidavit that is in the report testifying that the project is compatible and consistent; and she is present tonight to provide testimony in that regard. He stated the staff report addresses two issues; one is the issue of AU next to RR-1; and the other is the potential agricultural uses not being consistent with the RR-1. He stated that is why they have agreed to leave the south 300 feet as RR-1 per the Code; so they will have identical uses between the abutting subdivisions. He stated they have addressed the issue of school capacity; staff reported that Johnson Junior High School is slightly over capacity; the County policy regarding school capacity is set forth in Exhibit 14 of his submittal; and as Mr. Enos stated in his memorandum of March 25, 2002, any application that proposes an increase that is greater than one unit should be evaluated on its own merits relative to the school capacity itself. He stated that is what they are asking the Board to do tonight; they are going to impact Johnson Junior High School; if the Board votes for GU, there will be additional students at Johnson Junior High; if it votes for AU, there will be additional students; and the question is which is best for the school capacity issue. He stated Ben Jefferies has done an outstanding job analyzing the financial impact of the AU zoning with a binding development plan versus GU zoning; and he prepared a chart, which sets forth some of those issues. He stated if the Board votes for the GU, there will be no voluntary contribution to the schools; if it votes for AU with a binding development plan, there will be contributions of $234,000 to $250,000, so that is a quarter of a million dollars that the voluntary contribution would reach toward classroom construction. He stated their figures indicate there would be five additional students under GU; under AU with the binding development plan, it would be nine additional students; four additional students for a school that has a thousand people is diminimous; and the advantages that would be received financially for the subdivision as proposed far exceed the additional burden of four students. He stated the estimated taxes paid to the School Board annually under GU zoning is $184,000, but would be $500,000 for AU with a binding development plan; and the annual taxes after deducting the cost of educating the students is basically $28,000 of free dollars not directed toward the student costs in GU; and in AU with a binding development plan, there would be $228,000 of additional funds. He stated the additional cash flow under GU could go to bonds for approximately $250,000, and under AU with a binding development plan, it could go to bonds of approximately $2.1 million in additional funds for classroom construction. Mr. Evans stated the evidence is overwhelming that if the Board votes for AU with a binding development plan, it is far greater to satisfying the school crowding issue than voting for GU; and there is substantial competent evidence presented tonight that AU with a binding development plan is better for the surrounding neighbors and the schools than GU, which is the only other alternative tonight. He stated this received a 9-2 voted at Planning and Zoning; the P&Z Board knows the Board policy regarding schools; and it felt that this is a good proposal and nine of the P&Z members felt that the Board should favor it, which is significant. He stated they have attached as Exhibit 13 a list of all impact fees charged by other counties; 30 counties charge impact fees; taking all the counties together and averaging, it is approximately $500 a lot; taking all the counties that charge impact fees, it is a $1,900 average; so $1,500 is well within the range of what is being charged by other counties. He noted they do not believe this is an impact fee; it is a voluntary contribution; and the Board is not bound by this if it reconsiders the issue, but it is not out of the ballpark in terms of what might be required at a later date. He stated there is a question of whether or not this would be a precedent; he guesses it will be; if another subdivision loses its PUD zoning and comes before the Board demonstrating that AU with a binding development plan is superior to GU zoning, then the Board might have to support it; but other than that, there is no precedent set. He stated this is a unique issue that has not been presented to the Board before; if the County adds impact fees for schools, then this is totally resolved and a non-issue; and he does not think precedent would be an issue for turning them down.

Henry Minneboo, representing Bayside Lakes Development Corporation, stated they met with the homeowners at the Suntree Library and tried to address all the issues they had; it was somewhat difficult in that they did not know whether it was going to be GU or AU; and a lot of the issues will be addressed as they go through the site plan review process. He stated they were able to address access to Chestnut Run on the south side; they have a contiguous roadway there; they have agreed not to bring any of their traffic through there; and it will be a gated community. He stated there was some concern about Lake Washingtonia that was built by Mr. Ferrell in 1989; that is where a lot of expenditures were; and that is on the list to be addressed in the next two to three years. He stated hopefully upon their completion of this project, they will be able to enhance that road themselves.

William Ferrell stated this ranch has been in his family for a long time; and his father has passed away and his mother would like to sell the property to help settle the estate. He stated they were looking for a good developer to do the development; they had a lot of calls about the property; but they knew Mr. Jefferies was a fine developer who has a great reputation, and that is why they chose him. He stated they wanted someone who would be sensitive to the area and do the right thing; the land use is two units an acre, which would be approximately 780 units on the property; but Mr. Jefferies is willing to reduce it by 80% to 170 units, which will save a lot of the environmental things. He stated they walked the property; Mr. Jefferies is very sensitive to the property and wants to work with and please the neighbors; and it is a good thing. He stated they built the roadway; it needs some care; it is dedicated to the County; the property was a PUD zoned for 300; and it was going to be an upscale golf course community, but that was not economically feasible in 1989. He stated it is appropriate to have large lots; that is very compatible with the surrounding units, especially Chestnut Run; and it would be a real benefit to the County because it is going to be high-end housing with a price range from $350,000 to $750,000. He stated it will be one of the nicest communities in the County; there will not be many children because it will be an empty-nester neighborhood with high-end housing; and a lot of the children will go to private schools so there is not going to be much school impact. He stated it will be a low impact neighborhood that will enhance things, provide taxes, and help the schools; and it will be a win/win situation for everyone.

Rochelle Lawandales, Lawandales Planning Affiliates, stated the Board received a copy of her report in Mr. Evans’ submittal; and submitted additional information. She stated she was asked to evaluate the proposed project for consistency and compatibility with the County’s Comprehensive Plan and the area; and pointed out on the map the various land uses in the area, RR-1, AU; and a small piece of GU in the middle. She stated predominantly the development patterns are single-family subdivisions with large lots; Chestnut Run is developed at roughly one unit to the acre; I-95 borders on the east; and there are ranges from two to five units to the acre much further to the south. She stated Chestnut Run is very similar in style and acreage as the property in question; when looking at the two zonings that could be applied to this property, it is clear that AU with the binding development plan is the one that is most compatible with the area; and it is the one that makes better sense economically, financially, and from a planning standpoint for use of the land. She stated it is surrounded by residential subdivisions; it is an urbanizing area; and under the binding development plan, there will be 2,800 square-foot homes, limitations on the number of lots to 170, a minimum of a 20 to 100-foot buffer, if the Open Space Ordinance is used, it will probably exceed that because the canal will be moved; and there will be limitations on the uses within the south 300 feet. She stated there are no traffic issues; Washingtonia can handle the limited amount of traffic this will generate; and there are no other concurrency issues. She stated the drainage issues will be resolved during the development review process; and looking at the one unit to the acre in the subdivisions to the south and .4 unit to the acre in this subdivision, if it is developed as AU with a BDP, it will be a very compatible situation. She stated without the AU zoning and the binding development plan, there is a less suitable situation. She stated in terms of property values, sizes of homes, revenues generated to support facilities and services, environmental preservation and conservation, and other features, the binding development plan is clearly the better choice; and when they look at concurrency, they look at whether or not there is any impact on facilities and services. She stated there are three rules of thumb that are statutory, in the County’s Plan, and in common practice; one is whether or not the facilities and services are available at the time the development order is issue; another is whether or not there are funds programmed for any needed improvements within the Capital Improvements Program; and a third option is for the developer to pay. Ms. Lawandales stated in this situation there is a very positive impact from the voluntary payments and from the taxes generated by an upscale subdivision. She stated the project is consistent and compatible with the County’s Plan and with the surrounding area; and they would appreciate the Board’s consideration of their request.

Commissioner Colon stated they received Ms. Lawandales’ letter of December 4 today; and requested she read it for the record because there are things she did not hear from Ms. Lawandales regarding some of the concerns of the residents. Ms. Lawandales stated Commissioner Colon is referring to a letter they submitted in response to the petition that was received this afternoon to address some of the issues. She read aloud, “Dear Commissioners: Our office received a copy of a petition circulated within the adjacent Chestnut Run and other nearby subdivisions south of the proposed 390-acre project off of Lake Washington Road. This letter seeks to clarify or address some of the issues and misconceptions identified in that petition. First, there needs to be an understanding of the zoning issues. An approved PUD for 270 lots has purportedly expired, although there were significant expenditures by the owner for roadways and other infrastructure leaving no zoning on the property at this time. There are two other zoning options available under the County’s Future Land Use Map. First, we obtain AU zoning with a binding development plan that addresses the zoning and development concerns. This would result in a maximum of 170 units or .4 unit per acre; or the second choice is we’re given GU zoning allowing 97 units, but there is no binding development plan. The first issue was drainage. The drainage issues in the area will be addressed during the extensive permitting and site plan process with the County and St. Johns River Water Management District. Subdivision permits do not allow drainage after development to be worse than pre-development conditions. The drainage issue does not change whether the project is zoned GU, AU, or RR-1, which is what’s to the south of us, as the drainage is not a zoning issue but it’s a development issue. If we utilize the Open Space Ordinance under AU zoning, half of the land area would be left natural or developed with lakes, which will be a positive impact on the overall drainage system. We intend on relocating the existing canal to a point 100 feet north of Chestnut Run and increasing the canal width to 100 feet. This will improve the area drainage and provide a very significant buffer. The GU zoning does not have this option available. Washingtonia Drive is a public right-of-way maintained by the County, and if there are drainage issues due to clogged swales, illegal driveways, or dumping, this is a maintenance and enforcement issue based on existing development and would have nothing to do with ours. The roadway is on the County resurfacing schedule. As far as traffic and Washingtonia, a significant portion of Washingtonia Drive was installed and improved by the owner of the property, Mr. Ferrell, at his expense for future development of the subject property. Mr. Ferrell constructed the roadway and dedicated the right-of-way and improvements to the public, for the specific purpose of future development of the 390-acre parcel. At the time of the roadway construction, an 18-hole golf course and 270 units were fully permitted for the project. It was called Lake Washington Golf and Racquet Club, I believe. The current project has a unit reduction to 170 units or .43 unit per acre with no golf course, generating less than half of the former trips that would have been generated from the Lake Washington Golf and Racquet Club. The Future Land Use Map allows for density of two units per acre or 780 units. Our overall density is .43 dwelling unit per acre. Chestnut Run and the surrounding area is one to two dwelling units per acre on average. Also, it should be noted that the County staff report states that the project will not have any significant impact on the roadway capacity in the area. Washingtonia Drive is a two-lane road functioning at an estimated Level of Service A. The proposed development would not cause a drop in that level of service. As a local road it should be able to accommodate up to about 15,000 cars per day smoothly. With this development there will not be nearly that many cars as is indicated in your staff report. Appaloosa Drive was designated as an access point to service the 390-acre project, and there is an existing platted public right-of-way that extends to the property. We have agreed not to access Appaloosa or Smithfield under the AU zoning with the binding development plan at the request of the residents. This option is not available under the GU zoning. Property Values and Compatibility. The proposed project under the AU zoning with the binding development plan is totally compatible with the surrounding neighborhoods. The proposed project is lower in density than Chestnut Run and many of the neighboring communities. The home prices will be significantly higher and the minimum living area is significantly higher. The proposed project will have an extremely positive impact on the market value of Chestnut Run due to these factors. The binding development plan, with a 2,800 square-foot minimum home size, 170 units on 390 acres, and relocation of the canal addresses all of these issues. In summary, all of the concerns outlined within the petition as they relate to the zoning of AU versus GU are fully addressed within the binding development plan. We have reduced density, limited access into Chestnut Run, and made provisions for drainage improvements. As requested by the residents who stated: ‘We are signing this to seek provisions and assurances that if the rezoning is granted, our quality of life will be protected.’ We have provided the means and the evidence to show that the proposed AU with the binding development plan will maintain a qualify of life that all, including this proposed subdivision, can enjoy as well. Sincerely, Lawandales Planning Affiliates, Rochelle Lawandales, AICP.” She thanked Ms. Busacca for getting the letter distributed this afternoon.

Scott Linn stated he lives immediately south of the property; and thanked Mr. Evans and Mr. Minneboo for meeting with the residents. He stated there were more than 30 people in attendance as well as Mr. Lundgren from Commissioner Carlson’s office; and they did a good job of addressing the concerns. He stated Washingtonia Road is deteriorating; but it was brought up that it is scheduled to be repaved; and they mentioned tonight that they may have to deal with some of the maintenance afterward. He stated they addressed not running the construction entrance through their neighborhood; that was a big concern; and they appreciate that. He stated he and his neighbors who back up to the property are thankful that they are talking about moving the canal to the south; and they are in favor of changing the zoning.

Coleman Goatley stated there is very little he can add; and everyone at this point appreciates the thoroughness and detail that have been put into preparing the packages the Board has. He stated he found some interesting aspects of this, particularly the economic analysis of the school funding issues. He stated he does not think this has been done before in the County; and it is not only interesting to this matter before the Board, but perhaps to others that will come before the Board. He stated every effort has been made to present material that is credible, thorough, and accurate. He expressed appreciation to the School Board and its staff for their help in providing data and helping them to understand what it means.

Mr. Evans stated it is a delight to start out with 30 people questioning the subdivision and end up with one person coming to speak for it; and there is a letter in the file in support of the rezoning. He stated in the case of Mann vs. the Board of County Commissioners, which allows the Board to deny rezoning, when residences are increased, the court held that a rezoning that will substantially aggravate the overcrowded school conditions of local schools can be denied. He stated the chart shows that if the Board rezones to GU, it will substantially aggravate the overcrowding of the schools; if it votes for AU with a binding development plan, it will provide a strong financial vehicle to allow the School Board to correct the overcrowding situation; and if the issue is about good schools and protecting the neighborhoods, their request should be granted.

Commissioner Scarborough stated he had a good conversation with Ben Jefferies; the $1,500 bothered him then; and it is a precedent because if he does it this evening, he is creating a new methodology. He stated when he talked to Mr. Jefferies he said it would be great if they did that; if the Board imposed an impact fee at $2,000 or so, it would be another $500; and if it came in at $1,000, there would be a rebate; but while all economic analysis shows this to be good, the Board will be compelled to adopt the same methodology for anybody that walks in, whether there is a positive cash flow or not. He stated the Board is going to have Hank Fishkind come in; and he is sure his data is going to show that when there are homes of $400,000, there is going to be a tax base to support all kinds of things. He inquired once the Board adopts this, is it going to be able, based on Dr. Fishkind’s report, to have different rules for a $100,000 house, will the court support that, is that the rationale, and will there be an economic analysis of each house. He stated the simplest and best thing to do, if they wish to proceed with this, is to have a recalculation after the impact fee is imposed and a rebate or additional payment afterwards; and inquired if that is not done, what has the Board done to people who do not want to enter into the agreement. He stated if they build later with additional carry cost and pay the full cost of $2,000 for instance, there would be these people who have been able to vest themselves at $1,500; and that is what bothered him when he talked to Mr. Jefferies and bothers him tonight. He stated he is bothered by paragraph 4 of the binding development plan and the precedent that is created; he has not doubt this will be a wonderful project and has no problem moving forward with it; but because of that provision and the precedent it creates, he is not prepared to proceed this evening.

Chair Higgs stated she shares the same concern about the precedent; she does not believe in looking at any of the studies that have come in around the region that the dollar figure is being assessed in regard to any impact fee for schools; what the applicant provided
comes close to what the studies are showing are the real costs to provide the facilities; and there are a number of positive aspects to the project. She stated she thinks $1,500 is not the amount the Board should look at; it needs to understand exactly what it is doing; and it is her understanding in Orange County, there is a negotiation between the School Board and the developer in regard to the costs and how to go forward. She stated she is willing to proceed in the conversation; but the number at $1,500 is troubling and does not adequately reflect the cost that the school system would be encountering in order to provide the facilities.

Commissioner Carlson stated she thought it was a good proposal; and the applicant should get accolades for a very thorough examination of the issue, the Board’s policies, and County Code. She stated they looked into Orange County to see what it did since Brevard County mirrored its policy from theirs; Orange County has school impact fees of approximately $2,800; but if a developer is looking for zoning in an area that is overcrowded, it is the developer’s task to go to the School Board and get a “mother may I” sort of thing, and bring it back to the County Commission. She stated if they decide they are going to build in an area that has overcrowding as an issue, the County takes on $1,500 as a sort of penalty fee over and above the impact fee, so they are actually paying $2,800 plus $1,500; and she found that interesting. She stated the School Board evaluates the development to see if it can live with it and can it live with the impact fee and the $1,500; and it says yea or nay that way. She stated as far as setting a precedent, she would agree that an impact fee needs to be in place; paragraph four in the binding development plan does talk about once the school impact fee is enacted, the requirements for the $,1500 contribution per lot shall cease on all future platted lots for which the $1,500 fee has not been paid; and those lots would be charged the school impact fee in accordance with the Ordinance. She noted she met with the applicant and talked about that; and there was commentary to the extent that if the $1,500 is applied now and impact fees come in, they would be willing to pay the difference on the existing properties within the development. She inquired if that is correct as it is not written that way in the binding development plan. Mr. Evans stated the way it is written is if he were to close on a lot tomorrow, there are no impact fees, so he will make a $1,500 voluntary contribution; if the County enacts an impact fee ordinance next week, he would not have to pay any additional because he paid the voluntary contribution; but the next person who pulls a building permit after the ordinance is enacted will have to pay whatever amount is enacted. Commissioner Carlson stated she understood it to be a retro scenario based on the whole 170-unit development because there are no school impact fees, but the Board is in the process of evaluating them; and that anything over $1,500 might be rebated. Mr. Evans inquired how would they price a house when they do not know whether the impact fees are going to be $1,500, $2,000, or $6,000; and if the Board enacted a $6,000 impact fee, that would wreak havoc on the prices of the houses in the subdivision. Commissioner Carlson stated that is why she is clarifying the language in the binding development plan and what was said at the meeting. Mr. Evans stated they could work with Commissioner Scarborough and his system of $2,000 with a rebate as necessary.

Commissioner Scarborough stated they need to do a readjustment because anybody who comes in after the impact fee ordinance is adopted, would have to pay the full impact fee; Mr. Evans is getting an advantage to proceed now; and there is an additional kick if the amount is lower than everybody else. He stated everyone is going to scramble for this; it is a hot one; and everybody is going to be coming forward.

Commissioner Carlson stated she has some questions if the Board wants to go forward; but they have to get over the issue of the impact fee and how they can bind the School Board to use the impact fees in the regard the County would like them to use them. She stated they cannot bind another legal entity like that; that is a difficult question; and she asked Ms. Bentley earlier about the language in paragraph 4 that says, “the contribution shall be used by the Brevard County School Board . . ..” She stated legally they could say the contribution “may” be used by Brevard County for school infrastructure purposes; and then it would be on the County to figure out an agreement; but there are no guarantees. Mr. Evans stated they have no problem with that; and that is why he said they would agree to place it in escrow with the County and let the County negotiate with the School Board as to the proper application of the fees. Commissioner Carlson stated there is still no guarantee; they will have to have the communications; and inquired when the school impact fee presentation will be coming back. Assistant County Manager Peggy Busacca advised a workshop has been tentatively scheduled in February. Mr. Evans stated it is possible the $1,500 issue will be moot if the Board gives approval; it is going to be a year before houses are going to be built, platted, and everything else; and bumping up to $2,000, which might be closer to the range the Board is thinking of might be a better idea than coming up with a complicated system of going back for money.

Chair Higgs stated it is simple; and they pay the fee if it is established at the time they pull the building permit. Mr. Evans stated that is right, but they are talking about before the Board enacts the impact fees. Chair Higgs stated they will either come to some agreement on a proper reasonable amount tonight or work it out another way; and she does not think it is a complicated process, but they may need to go forward.

Commissioner Carlson inquired how long is the Board legally allowed to leave a property unzoned; with Ms. Bentley responding there is no bright line telling when, but it is the standard due process thing the Board has with tabling. She stated if the Board tables it for a year, it will have a problem; but if it tables it for a couple of months, she does not think that would be a due process violation. Commissioner Carlson stated this is probably the most appropriate zoning with the binding development plan; but there still needs to be some tweaking of the binding development plan, which she is willing to discuss tonight. She stated she does not know if they can go forward based on the condition of getting through the impact fee study and recommendation of the Board before executing the binding development plan; but at least that would give the developer the idea the Board supports the plan, other than having a problem with the one paragraph in the binding development plan. She inquired if that is something the Board is interested in doing or would it prefer to table it altogether.

Commissioner Pritchard stated page 4 of the financial impact study that was done by Bayside Lakes Development talks of a proposed 170-lot subdivision and a range of students of 60 to 77; revenue to the School Board per student annually of $8,300 or $6,500; and then it has the cost per student at a little over $4,000. He stated the average equates to 68 students or an annual tax revenue of $7,400 per student; and inquired if he is wrong in subtracting the cost per student of $4,000 from the $7,400 showing an excess of $3,400 in revenue; with Mr. Evans responding that is correct. Commissioner Pritchard stated that is $3,400 per student based on 68 students; then they are also looking at an additional contribution of $1,500 per lot; with Mr. Evans advising that is nearly a quarter million dollars right there. Commissioner Pritchard stated that is his point; it is already in excess of what it costs to educate a student by $3,400 just based on ad valorem revenue generated by the properties as they are developed; but the Board is talking about an impact fee. He stated the $1,500 adds to the $3,400; and that seems to be a significant amount of money that is generated by the high value of the subdivision. Mr. Evans stated looking at what is best for the school system, clearly the AU with the binding development plan is the better zoning. Commissioner Pritchard stated just based on the ad valorem revenue and the cost per student, there is a $3,400 cushion that is built in for each student annually.

Commissioner Colon stated one of her biggest concerns is how it is going to affect the community; the residents in the area feel comfortable that some of the questions have been addressed in terms of roads, drainage, and moving the canal; and that shows the Board is able to move forward regarding the kind of zoning it would like to give this property. She stated she does not want the Board to get tied down; this development is the first one to come to the Board with a voluntary impact fee; and that is tremendous because the Board has been talking about issues of school capacity and trying to help the School Board. She advised they just had a summit to discuss this issue; and the applicant needs to be commended for the hard work that went into his application. She stated that is why she is willing to go forward this evening; but the issue regarding the amount of the impact fee is a matter of wording. She stated the concern has been whether it would be $1,500 or $2,000; the applicant is like a guinea pig this evening; and the Board is trying to figure out what is going to be that magic number in the future. She stated she would hate for the Board to stop the development from going forward based on that because it is something that is going to be coming in February; and suggested the applicants work with the County Attorney and the Board to reach a compromise so the process can move forward and the property be rezoned. She stated if the applicant said tonight he would not pay more than the $1,500 then there is a problem because there will be other developers and people coming before the Board; and she does not think they want to dirty the waters. She stated the Board wants to allow the rezoning, but at least put the kind of wording that is needed to say that once the amount is determined, the applicant is willing to come to the table. She stated this is new; the discussion is supposed to come at the beginning of the year; they are hearing the workshop will be in February; and inquired if she and Commissioner Carlson are saying the same thing; with Commissioner Carlson responding she thinks so. Commissioner Carlson stated the Board is supposedly going to know the numbers in the study by the end of the month, so early in January it can look at those numbers; it can potentially table this item until then; she knows the applicant needs a level of certainty; and if the Board goes with $1,500 and it turns out it is not going to be $1,500, then there is a potential problem.

Coleman Goatley stated even if they did not propose a voluntary contribution, the point that Commissioner Pritchard made is valid in that the results from the ad valorem taxes provide a significant excess revenue. He stated of the 67 counties in the State, 21 have an impact fee; the highest impact fee is that of Lake County, which is $3,800; the lowest is Hillsborough County, which is in the neighborhood of $400; and the average of those counties imposing a school impact fee is less than $2,000, so they are looking at a number that would provide revenue to support the capital investment, but not ruin the market or cause properties to be overpriced.

Chair Higgs inquired if in the economic analysis, they attributed cost of the State; she saw local costs; but she did not see anything that gave credit to the taxpayers’ money going to the State’s share of local educational costs. Mr. Goatley stated they had to start with the school budget and reduce to what amounted to the local taxation issue. Chair Higgs noted all the people in the County are paying significant dollars to the State; with Mr. Goatley responding they are, and those dollars are not affected and continue to flow. Chair Higgs advised in figuring construction costs of schools, Mr. Goatley is not giving credit to the taxpayers’ costs in regard to State costs that are flowing into the County. Mr. Goatley stated there are a couple of things that play here; one of them is that two mills of the local ad valorem tax is required to go to capital outlay; they know what the cost of adding a classroom to a school is; and they are looking at $140,000 to $150,000 per classroom. Chair Higgs inquired does that account for the infrastructure needed to support the classroom; with Mr. Goatley responding it assumes an existing structure and this is an add-on with no expansion in the infrastructure. Mr. Goatley stated that seems to be the concern because that is generally the way the County is going and looking at adding onto some of the schools. Chair Higgs stated the two mills and the local costs are coming from the taxpayers; and the ad valorem does not fund fully the construction of the school, so there are State dollars coming in as well; and the assessment of impact fees throughout the counties that Mr. Goatley referenced do not represent a full attribution of the cost that the studies show. Mr. Goatley stated the cost of adding onto schools is the biggest concern now; they can determine what those costs are going to be and how much revenues are available to support that; and right now that revenue is there due to the ad valorem of two mills going into capital outlay. Chair Higgs stated that is not right; and the full cost to build a classroom is not represented by the two mills of ad valorem taxes. Mr. Goatley stated he is saying they can determine what the revenue will be from that source and they also know the costs to add onto schools; and if one exceeds the other, then they are ahead, and if not, they are behind. Chair Higgs stated they have to have all the State revenue for construction and infrastructure to support the classroom.

Commissioner Scarborough stated he agrees with what everybody is saying; but cautioned while it is attractive to look at the project and say it has a positive cash flow, the Board must be cognizant that there are people in the County who are going to be less able to afford expensive homes. He stated if the Board is only going to approve homes that are very expensive, it is going to be criticized as being prejudiced; and there may be certain groups bringing suits against the County for not looking after low-income families. He stated if the Board just looks at cash flow from something like this project, while it is good, it is not going to look at the numbers in an intelligent manner; and it is going to be caught by that. He stated he likes the project and
thinks it should go; but the devil is in the details of paragraph four. He stated if they can go to paragraph four where it can be applied to every single case for everything and he can run all the scenarios in his mind, he is ready to go with it. He stated it is not a complex issue; but the discussion seems to want to bring in more and more concepts to the point that it becomes dangerous for the Board to even discuss it.

Mr. Evans stated they can have it at $1,500 or $2,000, and the moment the Board sets an anticipated rate, that amount would jump to that rate; and it will still be voluntary until such time the Board formally enacts the ordinance.

Commissioner Pritchard stated that is fair and reasonable; and he questions why they are even discussing a $1,500 fee at this point considering the cash flow. He stated he understands Commissioner Scarborough’s concern; but the applicant is coming forward in a forthright manner; they are offering an opportunity to build something that is going to be worthwhile and attractive; and it is a good move.

Commissioner Carlson stated given that the Board chooses to go this route and approve AU with a binding development plan, if they develop the property it is going to take a year before they get any permits; and the Board should be past the impact fee question, so it would be a matter of abiding by the new impact fee.

Chair Higgs stated if the Board does not impose an impact fee or imposes a low impact fee, then it has unrealistically set a cost at this point; and she wants to set a realistic cost. Commissioner Carlson inquired what would be a realistic cost; with Chair Higgs responding Orange County is at $2,800, Osceola County is at $2,800, and Lake County is at $3,400; and these are fairly current studies. Commissioner Carlson suggested $3,000; with Chair Higgs responding that is closer to realistic.

Commissioner Colon stated it does not matter what the Board thinks is realistic right now; the point is moot; and it could pick $1,500 or $2,000 or $3,000, but it is ridiculous. She stated she will not accept an impact fee that is unfair; the County is jumping from no impact fee to a huge amount; and she will never support that. She stated she will support something that is fair and based on what other counties are doing that will not hurt people in the building industry who are at the lower end balancing ones who are higher. She stated she would like the Board to be able to move forward; but discussing the amount today is irrelevant because the applicant has to meet whatever requirement is there in the future, regardless of what that amount is. She stated she is willing to support Commissioner Carlson today to move forward and rezone the property, and then make sure the wording is that the applicant, once the amount is determined, will pay his fair share.

Commissioner Pritchard stated he agrees; he is not interested in developing a revenue stream based on a supposition that studies done by the other counties are accurate; for all he knows, they may be studies done just to develop an excess revenue stream; and he would like to wait until the County gets a study done to see what it should be. He stated there is a difference
between Brevard and Orange Counties; and what the applicant has done with the $1,500 range and opting to do whatever the Board comes back with based on its studies is reasonable and what he would support.

Commissioner Scarborough stated he is sure they could come up with some language; but whatever they come up with tonight, when the binding development plan comes back, he may vote against it. He stated he is concerned; he wants to think this through and determine how it is going to apply in many different scenarios; so if someone wants to put something out there, the Board can move this forward; but it may not have his support at the final hour because he is still uncomfortable. Chair Higgs inquired if the Board were to table the item, would Commissioner Scarborough feel the Board would get anything. Commissioner Scarborough stated he would like to meet with staff and Mr. Jefferies to talk over the options; what he said tonight is what he told Mr. Jefferies the other day; and the applicant knew what he was going to say tonight. He stated this can be worked out; he does not think the Board should look too much at this project as there are projects that are substantially different; they have the full right to ask for the same thing; and if it is okay in those scenarios after talking to staff, running the numbers, and talking with Mr. Jefferies, it is doable; but he is not comfortable with the language tonight.

Commissioner Colon stated she is willing to put a motion on the floor to go forward with the recommendation of AU with a binding development plan and have the folks pay their fair share in the future. Chair Higgs inquired if Commissioner Colon is saying $2,000 at the building permit stage; with Commissioner Colon responding that is fine.

Motion by Commissioner Colon, seconded by Commissioner Pritchard, to approve Item IV.B.2 with a binding development plan and contribution of $2,000 per unit for schools at building permit stage.

Commissioner Carlson stated she does not have a problem with the $2,000; but there is still some tweaking within the binding development plan that she would like to have answered. She stated the Board will be getting the impact fee study by the end of the month, and the item will come back at the first meeting in January; the Board can look at what the numbers really are and then address the item potentially; and $1,500 may or may not be realistic. She stated the Board may not be looking at all the possible impacts to those numbers although looking through the evaluations and examinations of numbers in terms of how the schools are being paid through taxes and impact fees, etc., it all looks cut and dry; but Commissioner Higgs has brought up other things with the State funding, so the Board may not be seeing the whole picture. She stated she is also concerned with the precedent setting of the language in paragraph four; but realistically it will be a year before they attempt to get a building permit; and with the language in paragraph four, it is going to fall to whatever the Board sets it to be. She stated right now the timing for school impact fees is very favorable; and she cannot imagine the Board not going forward with some kind of impact fee.

Chair Higgs inquired if the Board’s Agreement with the School Board gives any guidance as to what it should be doing with this particular proposal or what is being discussed; with Planning and Zoning Director Mel Scott responding when the Board conceptually agrees to binding development plans, the Ordinance provides three months for the applicant to return; and
typically the Board gets them back in three to four months, so the process as it is designed to work naturally will afford the opportunity for everyone to know what the number is and for it to be incorporated into the proposal and returned as a consent item.

Commissioner Scarborough stated he is not going to support the motion; this is much farther reaching than a quality development, which he supports; and it needs additional conversation and study by the Board before it proceeds.

Commissioner Carlson stated normally the binding development plan comes back with whatever tweaking there is; and inquired can the Board make it so it comes back after the Board looks at the survey. Ms. Bentley stated in the timeframe Mr. Scott described, it would not be a problem; but normally when the Board approves a binding development plan, it gives very specific direction as to what it should say; and if there was an amount, the Board would state what that amount is. Commissioner Carlson inquired if Ms. Bentley is following what she is saying. She stated the Board always reviews the binding development plans as they come back to the Board; she is willing to discuss another couple of items; and suggested having the binding development plan come back after the Board has reviewed the impact fee schedule, which will be in February 2004. Ms. Bentley stated if the Board is planning to leave the topic open, it would not want to close the public hearing because the issue would still be open; normally binding development plans come back on the Consent Agenda and the Board only talks about the exact language and tweaks the language or says staff did not get it right; but the Board is really talking about content, so it would need to keep the public hearing open.

Chair Higgs stated she will not support the motion tonight; it is a development that has great potential and there are good things there; but the Board is making a decision about where it is going to go with a policy that has been effective. She stated what the Board has done with schools has been a good step for the community; she is nervous about moving away from that; $1,500 is not close to the real figure; and she would like to see some work on that. She stated she wants to see the full impact of the decision; she would prefer to see the item tabled for discussion; and she will not support a motion to approve.

Commissioner Pritchard stated it is important to move forward; if impact fees are going to be discussed, they will be discussed before the binding development plan comes back; and the binding development plan could be tweaked at that point. He stated he does not see why the Board could not pass this as is with possibly the deletion of paragraph four concerning the contribution; and paragraph four would be moot if the Board is talking about having this come back after the impact fee study is addressed.

Commissioner Scarborough stated they could substitute for paragraph four, language that no building permits may be pulled until after the Board takes final action on a school impact fee; and that would render it moot.

Commissioner Pritchard inquired about the timeline for impact fees on schools; with Ms. Busacca responding there is a workshop tentatively scheduled for February 19; if the Board decided to direct staff to move forward, there would be interlocal agreements and advertising; and it would take several months before an adoption could be considered by the Board. Commissioner Pritchard stated meanwhile that could be holding up permitting of this development; but Mr. Evans has said they would be willing to pay whatever the fee is when it is enacted; and inquired why the Board would want to hold them to $1,500 or $2,000 and tweak it up or down. He inquired why is it necessary to have anything in there other than to say that the applicant has offered to pay what the fee is when the Board sets it. Chair Higgs stated the County does not have a fee. Commissioner Pritchard stated he knows that; that is why the applicant has said he will pay what the Board sets; $1,500 or $2,000 is moot; and what is set is what they will pay. Chair Higgs stated the Board does not have a fee; with Commissioner Pritchard responding it does not, but will get one. Chair Higgs inquired what if the Board does not get it; with Commissioner Pritchard responding if the County does not get a school impact fee, it does not need one; and inquired why should they pay it in that case. Chair Higgs stated the County has a transportation impact fee that is less than 30% of the real cost; with Commissioner Pritchard responding his point is they have offered to pay what the Board decides they will have to pay. Chair Higgs stated they offered to pay $1,500; with Commissioner Pritchard responding they also offered to pay $2,000; and they said they will pay whatever the Board decides they should pay. Commissioner Pritchard stated he assumes the Board will decide on what they should pay some time before he passes on; and since they have indicated they are willing to pay, he does not understand why the Board is having this issue about not moving forward. He stated this is a multi-year development so he assumes the Board will have a dollar value set before the developer is out of business; and then the County can get that money for whatever impact fee the Board sets, should it set an impact fee. Mr. Evans stated if the Board does not adopt an impact fee, they will still pay the $1,500.

Commissioner Carlson stated she likes the project; there is no doubt in her mind that it should go forward; based on paragraph four, if the Board sets an impact fee, they will pay; but she does not know if there are three votes on the Board to pass an impact fee or what that percentage might be, so nothing is guaranteed; and if the Board does not pass the impact fee, it will have the $1,500. Chair Higgs noted the motion is for $2,000. Commissioner Carlson stated this is going to come back and everyone may change their minds; but she has a couple of other questions. She stated a resident from Chestnut Run came forward and mentioned the access to the property; there is also mention of it in the Lawandales Planning document; and they have agreed not to access Appaloosa or Smithfield under the AU zoning with the binding development plan at the request of the residents. She noted she did not read that specifically in the binding development plan. Mr. Evans stated they will be glad to add that as it is the intent of the developer. Commissioner Carlson stated the other issue was that they liked the idea of moving the canal south; and that is not addressed in the binding development plan. Mr. Evans advised paragraph five says they agree to leave a 20-foot landscape buffer; but if the developer is able to use the Brevard County Open Space Ordinance and obtain permits and approval, he will relocate the existing County drainage. Mr. Evans noted they need permits from St. Johns River Water Management District. Commissioner Carlson stated if those two issues are included, then she would agree with the motion to bring it back and review it with those additions.

Chair Higgs passed the gavel to Vice Chair Pritchard.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to amend paragraph 4 of the binding development plan to $2,800. Motion carried and ordered; Commissioners Scarborough, Higgs, and Carlson voted aye; Commissioners Pritchard and Colon voted nay.

Mr. Evans stated they have not agreed to that. Commissioner Scarborough stated the applicant has to agree with the binding development plan, so there is a problem. Commissioner Colon stated if the amount goes down, they will not pay the $2,800, but would pay whatever the amount is supposed to be; so whatever number they pick tonight is irrelevant. Commissioner Scarborough reiterated the Board needs to be sure they agree; with Mr. Evans advising the applicants agree to that.

Vice Chair Pritchard passed the gavel to Chair Higgs.

Chair Higgs called for a vote on the motion to approve the item with a binding development plan coming back, with contribution of $2,800 per unit for schools at building permit, but changed if there is an adopted impact fee that is different from that. Motion carried and ordered; Commissioners Pritchard, Higgs, Carlson, and Colon voted aye; Commissioner Scarborough voted nay.

Commissioner Scarborough stated something of major significance to the County should be discussed in greater detail. Chair Higgs stated the Board will see it again. Commissioner Scarborough stated once the Board gets it, it is not allowed to address it without opening the public hearing and letting everyone discuss it; so there is a public hearing dilemma facing the Board as there may be others who want to address it who have other interests as the Board develops this policy.

Zoning Manager Rick Enos requested clarification on whether the public hearing has been closed or not; with Commissioner Colon responding it is open because the Board has not approved the binding development plan. Ms. Bentley stated it will come back on Consent Agenda only.

Motion by Commissioner Scarborough, to direct that when the binding development plan comes back to the Board it is an open public hearing so that as it is discussed anybody with an interest can partake of the discussion because it has a far-reaching impact on anybody who wants to avail themselves of the policy.

Mr. Evans stated then the Board has given them nothing tonight. Commissioner Scarborough stated he has his feelings about the issue.

Chair Higgs seconded the motion and called for a vote on the motion. Motion carried and ordered; Commissioners Scarborough, Higgs, and Carlson voted aye; Commissioners Pritchard and Colon voted nay.

Ms. Bentley advised they will need a time certain. Mr. Enos stated this is essentially a tabling; with Chair Higgs responding it is not. Chair Higgs inquired when will the binding development plan come back.

Mr. Evans stated they do not agree. Commissioner Colon stated nothing has changed; the Board approved the binding development plan; it agreed to $2,800; and Ms. Bentley advises it must be an open public hearing because they have not set the amount so that discussion is still open. Chair Higgs stated the amount was specified. Commissioner Colon stated once the impact fee discussion passes, that amount will probably change; and because of that, it will be an open public hearing.

Commissioner Scarborough stated he is disturbed because the applicant is disturbed; this is setting a precedent of great magnitude for the County; it is going to allow people to walk around a policy; so everybody is going to have an interest in this. He stated it must be a public discussion to be fair with the community on a community policy.

Chair Higgs stated the Board has voted in regard to the binding development plan and an open discussion; it just needs to set a date; and if the applicant wants to come back later and say they do not agree, they can come back at that time. Mr. Evans stated he does not have a contract with the client anymore. Chair Higgs suggested taking a ten-minute break so Mr. Evans can confer with his client.

Commissioner Scarborough stated they always bring back the binding development plan; they have had extensive discussions; and what they are saying is that there is a binding development agreement but the particulars can be discussed, including by people that the applicant wants to bring forward. He stated he does not know if that is to Mr. Evans advantage or disadvantage; but he would say it is more to his advantage because if it is up at the Board level, then Mr. Evans is precluded from participating. Mr. Evans inquired if the Board approves a binding development plan, and he submits a plan that meets the motion, would they get it; with Commissioner Scarborough responding not under the current rules. Commissioner Scarborough stated it comes back under the regular agenda; the Board has the ability to tweak it at that time; and the applicant does not have anything until it comes back. He stated the question is whether the applicant has a chance to come to the microphone or whether he has to sit mute in the audience; Mr. Evans has an opportunity to speak; and if that denies him, he may object, and the Board can say otherwise. Commissioner Colon advised it is a good thing.

Commissioner Colon recommended setting a date; and the Board reached consensus to hear the item on January 13, 2004.

The meeting recessed at 8:45 p.m. and reconvened at 8:52 p.m.

Item.IV.B.9. (Z0311204) George William Lewis’ request for change from RU-1-11 to BU-1-A on 0.24 acre located on the west side of North Plumosa Street, approximately 300 feet south of East Merritt Avenue, which was recommended by the Planning and Zoning Board for approval.

Chair Higgs stated she has no cards submitted; and inquired if there is anyone to speak for Item IV.B.9. She advised Ms. Riggs is present.

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to approve Item IV.B.9 as recommended by the P&Z Board. Motion carried and ordered unanimously.

*Commissioner Colon’s absence was noted at this time.

Item IV.B.4. (Z0311101) James W. Wolff’s request for change from GU to AU on 1.01 acres located on the south side of Caraway Street, approximately 300 feet west of Cherokee Avenue, which was recommended by the Planning and Zoning Board for approval.

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

Item IV.B.5. (Z0311102) Sri Jalaram, Inc.’s request for a CUP for Alcoholic Beverages for On-Premises Consumption in a TU-2 zone on 17.92 acres located on the southwest corner of SR 520 and I-95, which was recommended by the Planning and Zoning Board for approval.

Chair Higgs inquired if Mr. Buckley would like to speak; with Mr. Buckley declining the opportunity to speak.

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

Item IV.B.6. (Z0311201) Merritt Island Storage Limited Partnership’s request for change from BU-1 to BU-2 on 2.74 acres located and having frontage on the south side of Fortenberry Road, approximately 150 feet west of Plumosa Street and on the west side of Plumosa Street, approximately 150 feet south of Fortenberry Road, which was recommended by the Planning and Zoning Board for approval with a binding development plan limiting property to a storage facility only.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to approve Item IV.B.6 as recommended by the P&Z Board with a binding development plan limiting the use of the property for a storage facility only. Motion carried and ordered unanimously.

Item IV.B.7. (Z0311202) Robin A. Hunter’s request for change from AU to RR-1 on 2.5 acres located on the north side of James Road, approximately 1.5 miles east of I-95, which was recommended by the Planning and Zoning Board for approval.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to approve Item IV.B.7 as recommended by the P&Z Board. Motion carried and ordered unanimously. (See pages for Zoning Resolutions.)

Item IV.B.10. (Z0311301) Palm Bay Storage Ltd.’s request for change from BU-1 to BU-2 on 2.07 acres located on the west side of Babcock Street, approximately 900 feet north of Palm Bay Road, which was recommended by the P&Z Board for approval with a binding development plan limiting property to a warehouse facility and all BU-1 uses.

Chair Higgs stated this is an enclave between the cities of Melbourne and Palm Bay; and the applicant is asking for BU-2 with a specific use for storage units that are already there; with Kay Blahauvietz responding it was approved under a CUP under BU-1; that is no longer permitted; and in order to stay in compliance, they made the request. Commissioner Higgs inquired if this is going to be annexed into the City; with Mr. Blahauvietz responding he does not know. Mr. Blahauvietz stated he is representing the owner who is concerned with complying as the current zoning does not permit the storage units under the CUP any more; and he would like to be in compliance in case he ever had to replace the units. Chair Higgs stated the existing City zoning around there would not permit storage units of the type that are in place. Mr. Blahauvietz stated there would seem to be no objection; and the only thing was it was to be limited to this specific use. Zoning Manager Rick Enos advised that was for both. Chair Higgs stated she knows there was a comment from the City of Melbourne; and inquired if one was requested from Palm Bay; with Mr. Enos responding there is no joint planning agreement with Palm Bay, so they only got comments from Melbourne.

*Commissioner Colon’s presence was noted at this time.

Chair Higgs inquired if there is a time pressure; and could the Board have the opportunity to check with Palm Bay because this is an enclave and the City’s zoning would not permit this use. Mr. Blahauvietz stated there probably is not a time pressure; and the owner just wants to come into compliance. Chair Higgs stated the owner wants the zoning that would make this fully legal. Mr. Blahauvietz stated he can continue to operate the way he is; but if it burned down or something, it would have an effect; and it is a concern with the insurance company. He stated he wondered why when these types of things come about, they are not just handled administratively. Chair Higgs stated the problem is zoning is being established. Mr. Blahauvietz stated it was the use that was originally approved by the Board, and now it has been removed from BU-1. Chair Higgs reiterated it is establishing a zoning; it is a BU-2 use that is inconsistent with the City’s use all up and down there; and if Mr. Blahauvietz would allow them to consult with Palm Bay and bring it back at the February zoning meeting, she would be more comfortable. Mr. Blahauvietz indicated that is acceptable. Chair Higgs stated it will come to the Board at the February 5, 2004 zoning meeting.

Commissioner Colon inquired if it would be possible to bring it back at a regular meeting so it could be sooner. Chair Higgs stated that would be all right but they need time to consult with Palm Bay; and suggested the second meeting in January 2003.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to table Item IV.B.10 to the January 27, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RECOMMENDATIONS OF THE NORTH MERRITT ISLAND
DEPENDENT SPECIAL DISTRICT BOARD

Chair Higgs called for the public meeting to consider the recommendations of the North Merritt Island Dependent Special District Board, as follows:

Item IV.D.1. (NMI31101) Raymond Stites’ request for change from PIP to BU-2 on 1.95 acres located on the east side of North Courtenay Parkway, approximately 0.75 mile north of the Barge Canal, which was recommended by the North Merritt Island Dependent Special District Board for approval with a binding development plan including a conceptual site plan limiting front portion of the building to retail use only, providing a sidewalk along parcel frontage, prohibiting outside storage and outside business activities, and limiting signage to monument style.

Item IV.D.1 was withdrawn by the applicant.

PUBLIC HEARING, RE: ADMINISTRATIVE REZONINGS OF NOVEMBER 10, 2003

Chair Higgs called for the public hearing to consider the administrative rezonings of November 10, 2003, as follows:

Zoning Manager Rick Enos advised there are no objections to Items IV.E.1, 3, and 4.

Item IV.E.1. S & S Enterprises, Inc., Tracts A, B, C, D, E, 251. Removal of Conditional Use Permits A-9631 for Additional Building Height to 60 feet and Z-9668 for Alcoholic Beverages for on Premises Consumption, which was recommended by the P&Z for approval, excluding the new Parcel 265 cut out.

Item IV.E.3. M-135, LLC. Parcel 1. Removal of Conditional Use Permit Z-10186 for Alcoholic Beverages for On Premises Consumption, which was recommended by the P&Z Board for approval.

Item IV.E.4. David M. and Wendy J. Arteaga, Sub. 03, Lots 1 through 4, 5.A and 6; and Jill S. Kraus, tract A. west of South Tropical Trail. Removal of Conditional Use Permit Z-9551 for Horses on all, except for Tract A; and Z-9929 for Change of Non-conforming Agricultural Use Type 1: Bee Keeping and raising and grazing of animals in an SEU zoning classification on Lots 1 through 4 and 6 only, and Tract A, which was recommended by the Planning and Zoning Board for approval.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to approve Items IV.E.1, 3, and 4 as recommended by the P&Z Board. Motion carried and ordered unanimously. (See pages for Zoning Resolutions.)

DISCUSSION, RE: JOINT PARTICIPATION AGREEMENTS

Commissioner Scarborough stated if the Board is going to start getting comments if it has a Joint Participation Agreement (JPA), which is a wonderful idea, it needs to make it as a matter of record so staff can do that; that way the Board will not have to do what it did to Mr. Blahauvietz tonight; and he would prefer to seek the comments even if there is no JPA.

Chair Higgs stated it would be in the case of something where there is an enclave that is totally surrounded by City properties. Commissioner Scarborough stated it would help the County move to a JPA if it started acting like it already had one; and it could not hurt the Board.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to direct staff to request comments from municipalities on zoning issues even when there is no Joint Participation Agreement (JPA). Motion carried and ordered unanimously.

Upon motion and vote, the meeting was adjourned at 9:01 p.m.

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NANCY HIGGS, CHAIR
BOARD OF COUNTY COMMISSIONERS
ATTEST: BREVARD COUNTY, FLORIDA

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SCOTT ELLIS, CLERK
(S E A L)