March 3, 2005

The Board of County Commissioners of Brevard County, Florida, met in regular session on March 3, 2005, at 5:30 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Ron Pritchard, D.P.A., Commissioners Truman Scarborough, Susan Carlson, and Jackie Colon, Interim Assistant County Manager Ed Washburn, and Assistant County Attorney Christine Lepore. Absent was: *Commissioner Helen Voltz.

The Invocation was given by Pastor Dennis Meyette, Sunrise Lutheran ELCA, Port St. John, Florida.

Commissioner Scarborough led the assembly in the Pledge of Allegiance.

ANNOUNCEMENT

Chairman Pritchard stated Commissioner Voltz is on her way from the Orlando Airport; she will be arriving at approximately 6:00 p.m.; and in the interim he will appoint Commissioner Carlson as Vice Chair.

REPORT, RE: SEARCH FIRMS FOR COUNTY MANAGER

Interim Assistant County Manager Ed Washburn stated there is a list of nine search firms for County Manager; and inquired if the Board wants to short-list the selection firms on March 8, 2005 or have all nine applicants make a presentation, and if the Board desires to short-list, would it like to have three or five firms.

Commissioner Carlson suggested short-listing five firms. Chairman Pritchard inquired if they should do it by March 8, 2005; with Commissioner Carlson responding that is fine. Commissioners Scarborough and Colon indicated that is acceptable. Chairman Pritchard stated they will short-list from nine to five firms, and will have those five present on March 8, 2005 to make a brief presentation. He inquired how much time should the Board allow them; and consensus was reached to allow each firm a 15-minute presentation. Commissioner Scarborough stated if the Board then has questions, it can ask them. Commissioner Carlson stated they can make their presentation of 10 to 15 minutes and then have a question and answer period. Mr. Washburn inquired if the Board will short-list at a public meeting on March 8, 2005; with Commissioner Scarborough responding yes, they will short-list first. Mr. Washburn stated then they will schedule them for presentations. Chairman Pritchard inquired if the presentations would be on March 22, 2005; with Mr. Washburn advising Commissioner Scarborough has to leave early on that date. Chairman Pritchard stated the Board will do it first thing on March 22, 2005.
Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to approve short-listing five search firms for County Manager at the March 8, 2005 Board meeting, and begin the interview process at the March 22, 2005 Board meeting, with each firm on the short list to give a 15-minute presentation followed by a brief question and answer period. Motion carried and ordered unanimously.

DISCUSSION, RE: TABLED ITEMS

Commissioner Carlson stated she was going to ask to move a couple of items up but sees there is a time certain at 6:30 p.m. for the aquatic preserve issue that is VII.A.1. She stated last week she requested Item V.A.10, an administrative rezoning for a parcel off Murrell Road that is owned by the Orlando Diocese; they are planning on building a church elsewhere; and the Diocese would prefer the Board not rezone to IN(L). She inquired if someone is present for that item; with no response heard.

Item V.A.10. Section 10, Township 26, Range 36, Parcel 2, on 20 acres owned by the Diocese of Orlando, currently zoned AU and proposed to change to IN(L), which was recommended for approval by the Planning and Zoning Board and the Board of County Commissioners.

Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to deny Item V.A.10. Motion carried and ordered unanimously.

REPORT, RE: SCHOOL IMPACT FEES

Commissioner Colon stated she wants to bring to the attention of the Board all the talk about impact fees; the Board voted in August regarding impact fees; the School Board is already doing its five-year plan and going forward; and there was even discussion in January regarding school impact fees. She stated as far as she is concerned, this is a dead issue; and she wants to make sure the Board is clear on that, and that is the understanding of the Board, because it cannot have folks having the rug pulled out from under them.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to affirm that the Board will no longer consider abolishment of school impact fees. Motion carried and ordered unanimously.

Chairman Pritchard stated the Board needs to put the school impact fee to bed and leave it as it is; that is what the Board voted for; and he still does not believe it is a fair impact fee, but he is not opposed to impact fees. He noted he made the motion a couple of meetings ago to take transportation and library impact fees to 100%.

PUBLIC COMMENT, RE: MATHERS BRIDGE PROJECT

Chairman Pritchard stated he asked Janet Bonder to come to the Board as she has some questions and concerns regarding the reconstruction of the Mathers Bridge, the upcoming hurricane season, and public safety responses.

Janet Bonder stated those who live in South Merritt Island are very concerned about the Mathers Bridge being closed for probably six months or more; last year the plan came up that it would close in January, which was probably the best time; but now they have gotten notice that it is going to close in August. She stated August is the beginning of the hurricane season; and it is going to leave a few hundred families high and dry during hurricane season. She stated many of the people in the area did not evacuate for the hurricanes; they feel their homes are strong enough to protect them; however, if they do not have the bridge to go over to get ice, food, and fuel for generators, they are going to be in trouble. She advised it is doubly so because two miles to the north on South Tropical Trail is a low place that is always washed out during storms; and that means they will have absolutely no way of getting out except by boat; and if they do not have an opportunity to get fuel, they probably cannot even get out by boat. She stated she is pleading with the Board to delay the repairs until January; it would be a godsend to the people on South Merritt Island; she knows it might be difficult and inconvenient; but it has been delayed for a few years already. She stated they talked about the Mathers Bridge repairs for several years; and for one reason or the other, a lot of it being budget, it has been postponed; and inquired if it would be possible to delay it for a few months to give the residents breathing time.

Commissioner Carlson stated she is very concerned about the community’s concern about having to close the bridge; August is not the beginning of the hurricane season, but it does start the most active portion of it; and staff can answer some of the questions.

Transportation Engineering Director John Denninghoff stated the delays of the implementation of the project were the result of permitting issues; and as that evolved, the cost of the project escalated due to price increases in steel and concrete. He stated those escalations continue today; they now have them under bid, which would control the escalations and basically stop them; and if they delay the project, the Board will incur two types of expenses. He stated one will be the escalations he referred to, and the second would be that the contractor would be delayed by approximately five months and would be entitled to a change order to accommodate his loss of profit and other expenses associated with the project, which were not included in the bid. He stated additionally the bridge is far more likely to be damaged by the hurricane than South Tropical Trail is; it routinely is damaged by hurricanes; and in the past year it was closed for a period of time as a result of hurricane damage. He stated with respect to the evacuation situation, everyone has the right to stay where they are; but they were advised in sufficient time to evacuate; and if the road washes out, which it has not done in the past, Roadways and Landscaping is very adept at repairing these types of roads, as the Department did after Hurricane Irene on Riveredge Drive where there were legitimate washouts. He stated the condition of the bridge is currently rated at sufficiency level 6 on a scale of 100; and there are costs associated with maintaining the bridge. He advised the bridge breaks down routinely; it costs money to repair it; and it is inconvenient during that period of time as well. He stated if there are concerns with respect to fire protection, they have coordinated extensively with Chief Farmer and his staff to provide assistance for fire protection and emergency response times to keep them at a minimum; the bridge currently has a ten-ton weight limit; and most of the fire equipment exceeds that limit so they should not be driving across the bridge anyway. Mr. Denninghoff stated between the effect of the hurricane on the bridge and the bridge’s capacity, they felt it was more important to get the project underway, avoid the costs, and move forward. He stated obviously they can wait if the Board wants to do that; they have an estimate of approximately $500,000 additional cost to the project, which is already in excess of $6 million in order to wait until January to start the project.

Commissioner Carlson stated she is concerned about starting it in August, but she is more concerned about the structure being undermined during another hurricane and becoming unusable anyway, so she is looking at risk avoidance. She stated looking at risk avoidance, they need to keep it on the track it is on and save $500,000 and hopefully have a working bridge; but they were talking about a shorter timeframe; and inquired if there is any way to get it finished sooner. Mr. Denninghoff stated they looked at the options to accelerate the project to reduce the timeframe; they had independent evaluations of the construction procedures to try to be able to do that; and the only way to do it would result in an additional million dollar cost to the project and would involve working weekends and at night. He noted that type of construction activity at night would be very disruptive to everyone with the sound of a pile-driving hammer, and the determination was that the additional cost and the disruption to the neighborhood were probably not worth it, so they did not pursue it. Commissioner Carlson stated they are between a rock and a hard place; the community would like to get access on Mathers Bridge; but there is a sufficiency rating of 6 out of 100; and commented on the Max Brewer Bridge. She stated there is a tight budget this year; and adding costs is a concern, so she would prefer to stay on track and avoid additional risk. She stated she does not know if there was additional damage to the bridge from the last four hurricanes; but she assumes it has been undermined even further. Mr. Denninghoff stated there was further damage to the bridge through the past hurricane season that exceeded the levels they would experience in a normal hurricane season; and part of that was the result of the increasing age and continuing degradation of the bridge. He noted it is a steel structure; it is a mechanically operated structure with gears and wheels; and it is old and is in the very last years of its life. He stated the rate at which the bridge requires repair is extremely high; he anticipates that any kind of hurricane that would damage South Tropical Trail, would damage the bridge; and they would be forced to close the bridge at that point until it could be repaired. He stated he does not know what that repair might take because there are so many components that might fail that he would not hazard a guess as to which it would be. Commissioner Carlson inquired what is Chief Farmer’s plan for the south point of Tropical Trail to provide services to the residents since Mr. Denninghoff already said the weight of the fire engines exceed the weight limit of the bridge; and do ambulances weigh as much.

Chief William Farmer stated it is a good point that Mr. Denninghoff knows the weight of a fire engine, which shows there has been some coordination between the two agencies; and they have looked at different ways including partnerships with the Sheriff’s office to have helicopters pick up paramedics to reduce response times that will be negatively impacted by the closing of Mathers bridge. He stated through no increase to the taxpayers, they have been able to secure a 20-foot Mako boat; they tentatively have an agreement with a private homeowner to utilize their dock as an access point; and Engine 63 from Canova, which normally would cross Mathers bridge, will respond to the boat slip, take the boat across the Lagoon, access the private citizen’s dock, and utilize the secondary backup unit, which is light enough to cross the bridge, for emergency response. Chief Farmer stated they will also continue response from Station 62 off of Sea Park in the unincorporated area of Satellite Beach, coming across Pineda Causeway. Commissioner Carlson stated they have tried to avoid as much inconvenience to the residents there as possible and still try to avoid risk to the bridge; and she would like to have staff continue to go forward on the process. She stated she does not know if August is the earliest they can get started; and inquired if that is the absolute earliest. Mr. Denninghoff responded the tentative schedule for the contractor calls for early August to close the bridge; and they are reviewing that to assure the contractor has accounted for everything so they do not run into any unexpected surprises and can avoid additional expense. He stated the schedule calls for the August timeframe; the contractor is very competent; and at this point, that is the estimated start for the main bridge closure; but if he can do it earlier, he will. He stated there is not much opportunity to do it much later than that and still comply with the terms of the contract; and if he requests to go later, they can accommodate that, but it will cost the contractor to move the schedule to a later timeframe.

Commissioner Colon stated since they know it is going to be in August, she assumes that the evacuation route signs are in place and people know they will not be able to use the bridge. Mr. Denninghoff stated they are not in place now, but they will be in place well in advance of hurricane season. He stated the Contract requires the contractor to provide public notification; staff will be providing notification; and there will be a message sign on either end of the bridge well in advance advising of the closure and the reopening so the public will be aware of the schedule as it develops.

Chairman Pritchard stated he understands the concerns; but if they do not get moving on the bridge, they will be postponing the inevitable and may be faced with even more serious consequences. He stated the Board did talk about a resolution banning hurricanes this year; but at this time they need to move forward on the bridge. He stated they are notified well in advance of when evacuation should take place; and they do take into consideration the neighborhood but there are many mitigating factors, so they need to move forward.

Commissioner Carlson stated if there was a hurricane out there, they should evacuate, especially when there are avenues that will be closed to them, in case the storm gets worse than they might have thought; and evacuation is a good thing.

Mr. Denninghoff assured the Board and the public that staff will do everything it can to minimize the amount of time the bridge is closed; stated they had that in their minds as they developed the plans and specifications; the contractor is clear about that; and they will continue that effort to the greatest degree they can possibly do it.

Commissioner Carlson stated it is unfortunate that it did not start in January, but things do not always go as planned. She stated she understands it is an inconvenience for the neighborhood; and they hope for a non-hurricane season.

DISCUSSION, RE: WITHDRAWN OR TABLED ITEMS

Commissioner Carlson requested the Board move forward the small area study as there are several items in her District. Commissioner Scarborough stated he has some as well; and requested they go through the items to be tabled first. Commissioner Carlson stated it is important to look at the Small Area Plan before voting on the zoning. Commissioner Scarborough stated he has similar issues.

Zoning Manager Rick Enos stated several items have been requested for tabling as well as some withdrawn items. He stated three items were tabled by the Planning and Zoning Board, V.B.5, V.B.7, and V.B.8.

Item V.B.5. (Z0502203) Wasim Niazi’s request for change from IU to PUD on 13.03 acres located on the south side of Cone Road, east of Kemp Street, having frontage on the east side of Kemp Street, south of Cone Road, which was recommended by the Planning and Zoning Board to be tabled to the March 7, 2005 Planning and Zoning and the April 7, 2005 Board of County Commissioners meetings, with reprocessing fee required.

Item V.B.7. (Z0502301) North Cypress Reserve, Inc.’s request for change from GU and AU with existing CUP for mulching facility and air curtain incinerator, and existing BDP and CUP for land alteration with BDP to PUD with removal of all existing CUP’s and BDP’s on 353.28 acres located on the north side of Micco Road, east of I-95, which was recommended by the Planning and Zoning Board to be tabled to the March 7, 2005 Planning and Zoning and April 7, 2005 Board of County Commissioners meetings, with reprocessing fee required.

Item V.B.8. (Z0502302) Barefoot Bay, LLC’s request for change from BU-1 and BU-2 on 5.232 acres located west of Ron Beatty Boulevard and north of Micco Road, which was recommended by the Planning and Zoning Board to be tabled to the March 7, 2005 Planning and Zoning and April 7, 2005 Board of County Commissioners meetings, with reprocessing fee required.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to table Items V.B.5, V.B.7, and V.B.8 to the March 7, 2005 Planning and Zoning and April 7, 2005 Board of County Commissioners meetings. Motion carried and ordered unanimously.

Mr. Enos stated in the last day or two there has been a request by the applicant to table Item V.B.1 to the May 5, 2005 Board of County Commissioners meeting.

Item V.B.1. (Z0502101) Mary E. Hutcheson’s request for change from GU to AU on 18.80 acres located on the northwest corner of Parrish Road and North Singleton Avenue, which was recommended for approval by the Planning and Zoning Board.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to table Item V.B.1 to the May 5, 2005 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Mr. Enos advised there are two withdrawn items, V.A.9 and V.B.11.

Item V.A.9. (NMI50102) Francis Carter and James Duggan’s request for change from AU to RR-1 on 41 acres located on the north side of Pine Island Road, east of Briar Oak Drive, which was recommended for denial by the North Merritt Island Dependent Special District Board.

Item V.B.11. (Z0502402) Scott Stephen Pennewell and Kathleen Pennewell’s request for change from RR-1 to SR on 0.80± acre located on the southeast corner of Carolwood Drive and Marywood Road, which was recommended for denial by the Planning and Zoning Board.

Chairman Pritchard stated he has several cards submitted for Item V.A.9.

Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to accept withdrawal of Item V.B.11. Motion carried and ordered unanimously.

Chairman Pritchard stated Item V.A.9 is a North Merritt Island issue; and there are other issues on North Merritt Island that he is sure people will want to speak to. Commissioner Scarborough stated if the applicant withdraws, there is nothing for the Board to hear as the Board cannot take any action. Chairman Pritchard inquired if a motion is necessary to accept withdrawal; with Commissioner Scarborough responding no.

Commissioner Colon stated anyone interested in speaking to other items will need to fill out a card on those items.

Commissioner Scarborough stated he and Commissioner Carlson have some items that need to be discussed in terms of tabling because of small area plans. Commissioner Carlson stated she is not going to be tabling any at this point; but she asked for the small area plan for the first five tabled items, which are all in her district. She stated the Small Area Plan is here; and she thought the Board could discuss those and based on the decisions and options the Board chooses, it can take action on the zoning. Commissioner Scarborough stated his is different; they requested a small area plan; and it is going to be heard on March 22, 2005. He stated the area is midway between Titusville and Cocoa, on the river; and there are two applications it applies to. He stated the first item is V.A.6; he met with the applicants; and they understand the format they need to follow. He stated it would be prudent to table this to the next meeting to allow them to submit a binding development plan, if they wish.

Item V.A.6. (Z0309107) Richard J. and Patricia A. Connolly, Peter VanderHaeghen, 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. 1, north of the northern terminus of Indian River Drive, which was amended by the owner to request RP, and was recommended for approval of Community Commercial by the Local Planning Agency and BU-1 by the Planning and Zoning Board.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to table Item V.A.6 to the April 7, 2005 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item V.B.14. (Z0501101) Karen A. Bell, Personal Representative of the Estate of Charles H. Bell’s request for change from RU-1-13 and BU-1 to RU-2-10 with removal of existing Binding Site Plan on 6.12 acres located on the east side of U.S. 1, north of Indian River Drive, which was recommended for denial by the Planning and Zoning Board.

Commissioner Scarborough stated Item V.B.14 falls within the same plan; and it would be appropriate to have the small area plan completed before proceeding to the zoning.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to table Item V.B.14 to the April 7, 2005 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Commissioner Scarborough stated there may be some people in the audience for Item V.B.14; and they will be glad they did not have to wait for this item to come up on the Agenda.

Commissioner Colon inquired if Item V.A.7 is still going forward; with applicant Victoria Hemming responding affirmatively.

Chairman Pritchard stated he spoke with Ms. Hemming today. Commissioner Carlson stated she did as well.

Item V.A.8. (Z0501202) Housing Authority of Brevard County, Florida’s request for change from RU-2-15 and BU-1 to PUD on 17.59 acres located on the south side of Citrus Boulevard, west of North Courtenay Parkway and having frontage on both sides of Minna Lane, which was recommended for approval by the Planning and Zoning Board.

Chairman Pritchard stated there was a meeting regarding Item V.A.8; at that meeting some additional documentation was going to be provided that he and Ms. Williams felt was necessary; and he understands that has not been provided.

Commissioner Scarborough stated it is related to the overall capacity to handle the poorest of the poor within the County and the methdologies utilized; and the Board has a right to ask questions beyond just zoning.

Motion by Commissioner Scarborough, to table Item V.A.8 to the April 7, 2005 Board of County Commissioners meeting.

Commissioner Colon inquired if anyone knows when the Board will be able to get the paperwork. Chairman Pritchard stated they were told when they had the meeting earlier this week that it could be done that afternoon; but they have not gotten it. Commissioner Colon inquired if it is possible to put the item on the March 8, 2005 Agenda; with Chairman Pritchard responding he does not think so. Commissioner Scarborough stated he needs to get additional information; and he does not know if that would allow time to talk to staff to get his questions answered. Commissioner Carlson inquired if the motion is to table to the next zoning meeting; with Commissioner Scarborough responding yes.

Commissioner Carlson seconded the motion. Motion carried and ordered unanimously.

Chairman Pritchard inquired if Mr. Enos heard the discussion regarding school impact fees; and stated he would like to see them stricken from the consideration portion of the zoning comments; with Mr. Enos responding affirmatively. Commissioner Carlson inquired if they are talking about school capacity information; with Chairman Pritchard responding the line that talks about the impact fee, which has become part of the discussions with the Planning and Zoning Board. Commissioner Carlson stated part of the problem is the School Board still has a policy in place that matches the Board’s policy, which is why the person who represents the School Board votes against density increases when there is an overcrowded situation in a school in the vicinity of the zoning. Chairman Pritchard stated that is their problem, not the Board’s. Commissioner Carlson stated the Board has tried to fix its problem with future growth with the impact fee; and if they are going to keep that in place, they have to move forward based on the issues that she brought up a while back, as the Board set a precedent leading developers to believe that once the impact fee is in, it will not be an issue in terms of capacity. She stated capacity is still a problem, but it is an existing problem that the schools still need to deal with. Chairman Pritchard stated his point is the schools need to deal with it in some fashion or another; it was mentioned earlier at another meeting that the creation of a high-density subdivision was going to generate $6.3 million; but an elementary school costs approximately $10 million; and they were going to put enough children in the subdivision to fill an elementary school. He stated the School Board needs to realize there is a significant problem; and if adjustments need to be made in how it does business, that is its department.

Commissioner Colon inquired if Item VII.A.1 is a time certain because it is not part of the zoning agenda; with Chairman Pritchard responding affirmatively. Commissioner Colon stated she just wants to be clear that the only reason is because it is not a zoning issue.

REPORT, RE: ZONING HEARING PROCEDURES

Assistant County Attorney Christine Lepore advised the Board acts as a quasi-judicial body when it hears requests for rezonings and conditional use permits; the Board can only base its decision on substantial and competent evidence, that is, testimony that establishes facts or opinion testimony from expert witnesses appearing at the hearing; and the Board must decide whether the evidence demonstrates consistency with the Comprehensive Plan and the existing rules in the Zoning Ordinance. She stated the Board is not permitted to poll the audience; simply standing to demonstrate whether one likes or does not like an application is not evidence; and that kind of activity cannot be considered by the Board as a basis for approving or denying a request. She noted some courts presume a decision made after the audience has been polled is not based on substantial competent evidence; therefore if the Board makes a decision on the basis of an audience poll or on any other basis other than competent substantial evidence in the record, its decision can be overturned by the court. She stated the applicant’s presentation must provide evidence establishing facts or opinion testimony from expert witnesses showing how the request meets the Code or the Comprehensive Plan criteria; and persons speaking in opposition to an application must testify to facts or provide expert testimony showing how a request does not meet the Code or Comprehensive Plan criteria. She stated if a Commissioner has been contacted about an item before the hearing, the Commissioner must disclose the substance of that conversation as part of the record. Ms. Lepore stated each applicant is allowed a total of 15 minutes to present the request unless additional time is extended by majority vote of the Board; and the applicant may reserve any portion of the 15 minutes for rebuttal. She stated other persons speaking in favor of or in opposition to the applicant’s request will have five minutes to speak; the applicant will be allowed additional time to respond to any questions the Board may have; and speakers may not pass their time to someone else in order to provide that person with additional time to speak.

Commissioner Colon stated Ms. Lepore was clear about what the Board cannot do, but a member of the audience is still allowed to show support in the Chamber. Commissioner Scarborough stated it makes it more difficult for the Board to sustain its decision if that is a part of the evidence. Ms. Lepore stated that is correct; opinion testimony on whether one likes or favors an application alone is not sufficient evidence to support a Board action; and there has to be facts or expert testimony in the record demonstrating compliance or lack of compliance with the Comprehensive Plan or the Zoning Code. Commissioner Colon stated the reason she wanted to make that clear is because there are times when there might be 45 people who come before the Board; and what the Board has recommended in the past is to have only five who speak, as there is no need to listen to 45 speakers. She stated the choice is to listen to 45 speakers or five who present the facts. Commissioner Carlson stated substantial competent evidence could be if there is an expert testifying and there are 45 individuals in the audience who support that expert testimony; and inquired how would they address that. Ms. Lepore responded the testimony from non-expert witnesses should be fact-based as opposed to opinion. Commissioner Carlson stated she is not talking about them coming to the microphone to talk; she is talking about their presence being there to support the evidence; and inquired is that part of the record; with Ms. Lepore responding no, the number of people who show up to support or not support an item is not considered competent substantial evidence. Commissioner Scarborough stated the point Commissioner Colon is making is that someone could say they had five cars go by within a certain period of time; the Board does not hear that 20 times to have it entered as fact; and the repetition of a fact does not make it any more substantiated. Ms. Lepore stated that is correct; and the Board does ask that speakers not repeat the comments of others. Chairman Pritchard stated it is difficult, but when the Board sits as the Planning and Zoning Board, it is quasi-judicial, so the applause meter does not matter; and the only thing that matters is the facts. He stated that is what the Board has to address; but it understands that it is difficult when there is an emotional tie to an issue to not become emotional; however, the Board is not an extension of the homeowners association. He noted in a court, the judge does not poll the audience to see if it is murder one or manslaughter; he listens to facts; he throws out irrelevant testimony; and then he makes a decision based on the facts and the application of the facts to the rules, which is what the Board does. He stated this is not emotion driven; it is not a question of whether the Board supports or does not support what people have to say; but it is a question of the applicability of what the Board has to say and the rules the Board has to follow; otherwise, when the Board is sued, it will lose. He requested all cell phones be turned off and that there be no applause tonight.

STAFF DIRECTION, RE: SMALL AREA STUDY FOR EAST SIDE OF U.S. 1, BARNES
BOULEVARD TO PINEDA CAUSEWAY

Commissioner Carlson stated hopefully the Commissioners have gotten a chance to review the Small Area Study; and there are options; and she would like staff to give an overview of the process, what the options are, and what they mean.

Comprehensive Planning Manager Todd Corwin stated this particular Small Area Study examines the residential lands from Barnes Boulevard to the Pineda Causeway, east of U.S. 1; and it looked at a variety of different issues such as land use compatibility, character, concurrency, infrastructure, and environmental issues. He stated the study also examined various Comprehensive Plan Policies and how they interrelated with the zonings and other appropriate factors; and it looked at the developed character of the area as well as the existing zoning, and examined what the built character and the zoned character of the area was as well as what the existing Future Land Use Map density is for the area. He stated there was a community meeting on February 9, 2005; there was public comment at the end of the study; and a significant number of folks from the Rockledge Drive area had concerns about the study. He stated when the Board reviews the options portion of the study tonight, it will see that has been revised to show that none of the recommendations affect that area as the recommendations all affect an area south of Rockledge Drive to the Pineda Causeway. He stated the study also examined the environmental characteristics showing that a portion of the area lies within the Coastal High Hazard Area; that would be the area immediately adjacent to the Indian River Lagoon; and there are several options. He stated the first option is to maintain the Future Land Use Map and zoning patterns, which are four units per acre north of Rockledge Drive, fifteen units per acre south of Rockledge Drive to approximately the Indian River Isles Subdivision, and then Neighborhood Commercial and Community Commercial southward to the Pineda Causeway. He stated another option is to amend the Future Land Use Map for those properties that are currently fifteen units per acre to a Future Land Use Map designation consistent with their developed character; in other words, if a subdivision is currently built at four units per acre, through a Comprehensive Plan Amendment the designation could be four units per acre instead of the current fifteen units per acre. Mr. Corwin stated another option is to amend the Future Land Use Map designation for vacant properties from Residential 15 to six units per acre; and the density in this particular option was arrived at by looking at the zoned and built densities of the area. He stated under this particular option, an analysis may have to be done further to
determine if any transitional zonings need to be done between the vacant Residential 6 properties and some built properties at lower densities. He stated there is some AU zoning in the area, which is probably a remnant agricultural residential from the time when agricultural uses were prevalent in the area; and those uses will probably not be the ones that define the character of the area in the future. He stated the fourth option is to amend the Future Land Use Map to Residential 4 for the Portofino Bay Subdivision, because it is currently designated as Neighborhood Commercial; the analysis of the Future Land Map shows that particular development is already developed as residential; and therefore, Neighborhood Commercial is inconsistent with the developed character. He advised option five is to create a Future Land Use Element directive that would provide an incentive for redevelopment on properties between Suntree Boulevard and the Pineda Causeway of 25% bonus over the existing Future Land Use Map designation.

Commissioner Carlson stated they had a good community meeting with a lot of folks in attendance; the majority of them were from Rockledge Drive and were concerned that the Board was interested in increasing density; and they made it fairly clear that they had taken that portion of the plan and extracted it. He stated it has a Residential 4 future land use on it; and that is sufficient for what they were looking for; and then going further south to the Indian River Isles Subdivision, there is a large area of AU/EU and other things with a mix of Neighborhood Commercial and some RU-2-10 with a cap of six. She stated she does not feel option one is appropriate; that would keep the current residential fifteen dwelling units to the acre; and that is unrealistic to keep that in a Coastal High Hazard Area. She stated even though they have extracted the Rockledge Drive piece, they are aware of the damage that occurred there during the hurricanes, the low level of the road system there, and how the water inundated that area; and they would not want to see that in the rest of the coastline if there was another hurricane pattern like there was last year. She stated option two makes a lot of sense; that is to change the future land use from Residential 15 to the appropriate built density for those properties that are already developed; and as Mr. Corwin said, whatever they are developed at, they would get an equivalent land use, so she will support option two. She stated option three is to amend the Future Land Use from Residential 15 to Residential 6 for vacant properties; most of the properties are zoned for a maximum density of six dwelling units per acre; and reducing the residential density allowances on vacant properties will encourage development to trend toward lower density residential uses such as single-family, lower density multifamily, and that sort of thing. She stated she would like to add a caveat, which was suggested by Mr. Corwin, to see vacant properties adjacent to developed residential properties get a land use of Residential 4 to provide a transitional area so the County is protecting those folks who are there. She stated she is uncomfortable allowing Residential 6 next to EU or something existing like that; and there are a couple of places in the vicinity where that would apply. She stated option four is obviously important; Portofino Bay Subdivision is Neighborhood Commercial, but should be designated Residential 4; that is a no brainer; and she would like to see that done. She stated she suggested option five; she is not sure whether they can do it; but they could provide incentives for redevelopment in areas that are blighted or in older communities that need facelifts; and the language that was drafted was based on her interest in the area from Suntree Boulevard to Pineda Causeway, which has the most commercialization, older development, older homes, and things of that nature. Commissioner Carlson stated she was looking to promote redevelopment of that area to get some things in there that would look nicer; and the suggestion was for something similar to the density bonus that is given for the use of the Open Space Ordinance, which is a 25% density bonus. She stated option three is taking Residential 15 and making those Residential 6 on the vacant properties and a density bonus in the specific area from Suntree Boulevard to Pineda Causeway; it would be a maximum of up to 7.5 units per acre; it would not be a given that they would get that; but it would mean they would have to look at compatibility for every zoning item that comes through as this is strictly land use and not zoning; so the Commissioners need to keep those separate in their minds.

Ed Bertrum stated he appreciates what Commissioner Carlson has done in taking Rockledge Drive out; they were concerned about keeping it low density and estate zoned as it is now; but they are at a disadvantage as they have not seen the revised report.

Commissioner Scarborough stated the item is to give direction to staff; and this will come back to the Board. Commissioner Carlson stated the Board has to request a Comprehensive Plan amendment. Commissioner Scarborough stated it will come back to the Board, so people with concerns will have an opportunity to comment. Commissioner Carlson stated the issue of Rockledge Drive is not going to be coming back, it is going to stay the way it is; and it is not an issue.

Dr. Daniel Roberts stated he lives on Rockledge Drive and represents at least 30 of his friends and neighbors, a number of whom are present tonight; and he would like to enter into the minutes a letter he wrote to John Glish of Florida TODAY, dated February 16, 2005. (Dr. Roberts did not submit such letter to the Clerk.) He read aloud, “The fight on Merritt Island is the latest public call for sane development. Commissioner Sue Carlson recently compiled a small area plan . . . four units per acre to 15 units per acre for the entire area of the study. This is before I knew of the recent changes. Although stated otherwise, there is no real protection for the residents of Rockledge Drive. The proposed change would further aggravate the environmental flood area and a hurricane surge would therefore damage 15 units versus our current average of approximately one residential unit along Rockledge Drive. The ecology of the Indian River Lagoon would further be compromised. All of our County Commissioners should be made aware of our overwhelming disapproval of this plan, as evidenced by the large attendance of residents in the affected areas at our recent Planning and Zoning meeting. I have signed here 16 or 17 of my closest neighbors who are unable to attend tonight because of the early hour of this meeting and because of illness, etc., but I have signed here those names. Now this is to address some of the concerns of my colleagues and friends and neighbors who are sitting here tonight; and this is what their feelings are. There will be no way to stop condominiums from U.S. 1 to the Indian River Lagoon along Rockledge Drive. These are still recommendations to you all, so this is still our concern. Increased density makes access to U.S. 1 more difficult. Increasing hurricane surge vulnerability of property and life of our entire area with the fifteen units per acre, there’s going to be that much more problems with more people involved and more damage to structures.” Dr. Roberts noted he is representing the people who are present as well as Dr. Baez and his group from the back of River Woods development. He stated their feeling is that these residents’ concern is that there is a driving range adjacent to Peddlers’ Village; the owners of the driving range may decide to sell their acreage, which runs almost up to the river; and the people are very concerned that a condominium could be put there. He stated the land can be built up higher; the first floor of the condominium is parking and then the height restrictions start at the first floor; so the condominium would be way above what they would imagine a condominium would be.

Commissioner Carlson stated the future land use was always Residential 4 in the Rockledge Drive area; it was never Residential 15; and that was a misconception. She stated as far as the proximity of Residential 6, it is quite a ways past where Rockledge Drive comes off U.S. 1, so there is a huge gap in between, which is all residential. She stated they are all in RU-1-11 and residential types all the way down; so even if there was a mid-size condo or anything like that in the Residential 6 area, she does not think it would impact Rockledge Drive.

Dr. Roberts stated aside from that, the people along U.S. 1 who have private dwellings and could not come to the meeting have concerns that a condominium would be adjacent to their property; at the next meeting they could have 30 people present or 100 people present; and he is appreciative of the Board’s efforts on their behalf now.

Commissioner Colon stated Dr. Roberts is preaching to the choir; that is why Commissioner Carlson took the time to do the small area study plan; and yet the Board is looking like the bad guys to Florida TODAY again. She stated that is the part she cannot comprehend; the Board is trying to do the right thing; and then letters go in to the newspaper. She reiterated the Commissioner from District 4 took the time to do a small area study to protect the residents.

Joe Goldblatt stated he lives on Rockledge Drive, but north of the study area; he attended the meeting because he owns a business on U.S. 1 that is in the study area called Roomscapes of Brevard; and it is located about a quarter mile north of Viera Boulevard on the east side of U.S. 1. He stated he was glad to note the Board was taking action; and he applauds the Board taking a proactive stance on the future of the area. He stated he assumes zonings have been requested that made people realize that possibly the cow is not all the way out of the barn and it is a good time to close the door. He stated he has a couple of clarification issues he hopes the Board will take under consideration as it studies this issue; in the staff report, it mentions that the area is approximately ten miles long; but the area is seven miles long. He advised it is 11 miles from the Pineda Causeway to SR 520; and the size of the area is a bit overstated. He stated what concerns him more is that in the first paragraph of the report it refers to the study area being defined from the southern boundary of Rockledge all the way to the Pineda Causeway; but from every point after that, it refers to Barnes Boulevard as the northern boundary of the study area; and it may seem like a trivial thing, but that is a half-mile that is being left out of the study area and that includes the Harvey property, which is north of Barnes Boulevard, east of U.S. 1, and south of the Rockledge border. Mr. Goldblatt stated he has no idea why it was defined that way, how it would impact the study, or what binding effect it would have on that property; but he would not want to see that property excluded because that is a very large piece of property that has a river view and frontage on U.S. 1. He stated the Board has put some of the neighbors at ease because it has said there are going to be no problems with the Rockledge Drive area, but there is a substantial piece of land between Rockledge Drive and U.S. 1, north of the terminus of Rockledge Drive; and there are some unique possibilities there. He stated he has a commercial building in that area that has two homes on the river on flag lots that he granted access to; there are some good examples of where residential and commercial can coexist; and he was aggravated that the study seems to be so focused on the residential aspect, yet it is a unique area for commercial. He stated the study gives lip service to it, stating the only concern is east of U.S. 1; but it never goes any further in making recommendations; and his biggest concern is option five, that would grant additional status or density to any property that might be redeveloped. He stated that, in conjunction with the comment that was made at the February 9, 2005 meeting, really concerned him because of the example given by staff that said if Chowders went out of business, there would be a blighted area on U.S. 1 because there would be a vacant commercial property and that would be a prime property for being considered for redevelopment as residential. He stated as a businessman and a citizen of the County, there are only a few ways that people can enjoy the river if they do not own a home there; and one is to go to a commercial establishment such as a restaurant, a professional condo with offices, or the parks. He stated they are blessed with three parks in the seven-mile stretch; and inquired why would there be an automatic assumption that anything that needs to be redeveloped would be redeveloped for residential, because all they are going to end up with is every one of the little niche pieces of land there not suitable for residential would have an added incentive to try to fit more onto it. He stated the County needs to treat that as a treasure, not only for the unique residential opportunities, but there should be some fairly unique commercial establishments along there to coexist and allow some of the people in the County to still be able to enjoy the ambience of the river.

Commissioner Carlson stated she would like staff to talk to the Barnes Boulevard reference and then they will do the other two. Mr. Corwin inquired what is the issue about why Barnes Boulevard was included in the first place. Commissioner Carlson stated no, the reference was after excluding Rockledge Drive, everything goes from Barnes Boulevard south in the document. Mr. Corwin stated the document, as revised, looks at the entire area; however, the Barnes Boulevard area is specifically excluded from any of the options; so the options, which are to do a variety of issues or potential Comprehensive Plan amendments or Future Land Use directives, specifically includes the area from Rockledge Drive southward while the area from Barnes Boulevard to Rockledge Drive is specifically excluded. Commissioner Carlson inquired why is that; with Mr. Corwin responding that was because at the community meeting, people brought up a variety of issues; one of those issues was that this particular area was already designated at four units per acre on the Future Land Use Map; and looking at the character and compatibility issues, the area did not have the same Future Land Use Map issues that the other area did. Mr. Corwin stated in other words, the four units per acre was something that existed in the area; the EU zoning at three units per acre is the primary zoning within the Rockledge Drive area; and that lies between the Residential 2 and Residential 4 classification. He stated since the area was already built and was consistent with the Residential 4, it was excluded from the small area study. Commissioner Carlson inquired if in the study process, they looked at the commercial frontage in front of Rockledge Drive; with Mr. Corwin responding the entire commercial area was examined. Mr. Corwin stated the primary purpose of the study, as written, was to look at and analyze the commercial area; along U.S. 1, there is a fairly consistent depth of commercial from Barnes Boulevard south to Rockledge Drive; and then south from there to the Pineda Causeway, it breaks in several instances, especially in the Indian River Isles Subdivision, because that area is residential right up against U.S. 1. He stated as they transition southward from the Indian River Isles Subdivision, it becomes Neighborhood Commercial and Community Commercial for the entire area except for the Still Point Subdivision; and he does not think, in terms of the redevelopment issue, that encouraging development of commercial properties through residential is an automatic assumption, but the option gives people the option, if they want, to have the ability to develop residential and do a few extra units. He stated it does not take away ones ability to also develop that property with another commercial use because the area southward from Indian River Isles Subdivision to the Pineda Causeway is primarily Community Commercial or Neighborhood Commercial, which would allow a variety of commercial uses; and transitioning back northward, after the established depth of commercial along U.S. 1, there is a residential area that exists between the commercial area and the Indian River Lagoon. He stated it was in that area that the study gave particular emphasis because it seemed the Future Land Use Map had the most discrepancy between what is constructed and the zoning that existed on the ground; and it had a variety of zonings and a variety of built densities that did not match the Future Land Use Map of 15 units per acre. Commissioner Carlson stated the compatibility issue with the Comprehensive Plan for the commercial property that goes along the frontage portion of Rockledge Drive was not assessed to be anything else because it was compatible with the Future Land Use Map; and as far as any redevelopment incentive or anything like that, she did not look at it as expecting to see commercial being converted to residential. She stated she wanted, if it was going to be residential and in an area that could be redeveloped, to be nicer in the community depending on the fit and compatibility; if there is a major commercial area and they are trying to insert residential, it is not going to be compatible, so that has to be looked at; and if those areas in there redeveloped, they could potentially get some sort of incentive for doing it; and that was the only intent. She stated the intent was not to go from commercial and redefine it as residential; that is not a healthy thing to do; and that is why she defined it between Suntree Boulevard and Pineda Causeway because that is where a lot of that type of development is occurring right now. She stated it is going to come back in a Comprehensive Plan amendment, so they can look further at it.

Mr. Goldblatt stated part of the question was not addressed; the directive was to study from the Rockledge City limit to Pineda Causeway; but at every point after the first paragraph it addresses the area from Barnes Boulevard south. He stated the area between Barnes Boulevard and the Rockledge City limit, east of U.S. 1 is predominantly occupied by Harvey Groves; there is other acreage there as well; and it is a very large piece of land, which has the largest stretch of undeveloped land along Rockledge Drive. Commissioner Carlson stated Residential 4 in that area means they could not build more than four units per acre; and that is what all that area is. Mr. Goldblatt stated the area that is four units per acre tends to be just the frontage on Rockledge drive; there is enough depth there to have room for a high density residential use to be developed; and that is where the Harvey store is rather than the groves. Mr. Goldblatt requested the Board make sure its study, provisos, and actions encompass that because it seems to have been thrown off. Commissioner Carlson stated they will review it.

Michael Gaich stated he has been a Brevard County resident since 1967; he has been in commercial real estate and development since 1973; during that time period of thirty-plus years, he has learned the importance of changes in Comprehensive Plans, small area studies, rezoning requests, and DRI’s; and he welcomes this opportunity to share some comments with the Board. He encouraged the Board to take as much time as it needs to satisfy itself, using staff and members of the community, that it is making the right decisions because this is an important matter; and stated looking at the County from thirty years ago to today, it has progressed well. He stated it is important for the Board to not only consider those items of density and units, etc., but to look at some of the physical characteristics this zoning will place upon the property, its depth, access to U.S. 1, location points, and the aftermath of the hurricanes; and the County has been taking steps to look at what effect that had, what type of building should be built there, and what they need for finished floor elevations. He stated it is well suited to try to provide the developers, whether single family or other with some bonuses if they can provide more green space and do things in a manner that will fall within what the County thinks are important matters. He stated he owns eight acres of land that fall in the midst of the area in question; he purchased it in 1973; in 1974 he rezoned the land like his neighbors to RU-2-15 with a cap of six and BU-1 frontage on U.S. 1; his neighbor to the north is building a condominium now; his neighbor to the south has RU-1-11; and it is interesting to note that RU-1-11 was the zoning they all had in 1973. He stated Indian River Isles zoning at that time was RU-2-15; if he understands what the Board is doing, it would be adverse to him to have had RU-2-10 for 31 years and have Residential 4 placed against him where he could not develop because there was a single-family residence that signed off on him 31 years ago. He requested the Board keep those things in mind.

Commissioner Carlson stated option number five provides a density bonus; and inquired how many residential areas are in that stretch from Suntree Boulevard to Pineda Causeway; with Mr. Corwin responding on the Future Land Use Map, currently it is just the Still Point Subdivision; and if the Board directs staff to do the Portofino Bay Subdivision as an amendment, that would be two areas. Commissioner Carlson inquired if the rest are considered Neighborhood Commercial; with Mr. Corwin responding Neighborhood Commercial or Community Commercial. Commissioner Carlson stated she is not sure what the Board wants to do, but it certainly can consider that; and if it considers any incentives for density increases for redevelopment purposes, it should probably be done on a Countywide basis, which will take extensive study and analysis of the other areas that might be more blighted; and it would need to have additional focus and incentives to redevelop and keep it in more defined urban areas. She stated there are other issues as part of the study; and issue number one is building requirements within the Coastal High Hazard area should also be examined to insure that appropriate standards exist to protect the health and safety of land owners who develop properties within that part of the study area; and that goes for commercial areas too. She stated issue number two was also requirements for septic tanks and drainfields within the Coastal High Hazard Area should be examined to protect the health and safety of the residents within that area; currently the Conservation Element Policy 3.8 states that septic tanks and drainfields shall be set back at least 100 feet from the shoreline of the lagoon; and it also states for lots with insufficient depth, that can go to 75 feet. She inquired from a Natural Resources perspective, if anyone wanted to build a condominium, multistory structure, or anything like that, would they be qualified to have septic tanks or would they have to have County water and sewer. Sherry Williams of Natural Resources Management responded they would have to have County sewer.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to request staff go forward with a Comprehensive Plan amendment that will include certain options; to submit Comprehensive Plan amendments that utilize option number two, which is Residential 15 changed to the density that exists on developed properties; option 3 change Residential 15 designation to Residential 6 for vacant properties, with the caveat that vacant properties that abut residential properties that are developed have a transition use such as Residential 4 or whatever is appropriate to provide an appropriate transitional buffer to the existing homes; and option 4 to change the current designation of Portofino Bay residential subdivision from Neighborhood Commercial to Residential 4 which is to make it compatible with the Comp Plan. Motion carried and ordered unanimously.

Commissioner Carlson stated at this point she is not sure if the Board wants to go forward with option five or whether it should request staff bring back a report on opportunities for looking at an ordinance that would define areas in the community and what that would entail. She stated it needs to be brought back with some legislative intent; she would like to see it come back in terms of time and dollars for the redevelopment density bonus, etc; and it may not be a 25% density increase, but might be something else that would be considered an incentive to redevelop in an urbanized area instead of sprawling out in the more rural areas.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to direct staff to bring back a report and legislative intent on Option 5, on opportunities to look at an ordinance that would define areas in the community appropriate for redevelopment, what it would entail in time and dollars, and options for incentives including, but not limited to density bonuses.

Chairman Pritchard stated he is not too wild about increasing the density; and that is the one thing he has been talking against. Commissioner Carlson stated she understands that, but the Board talked about incentives for redevelopment. Chairman Pritchard reiterated he does not know if that should be an incentive. Commissioner Carlson stated that is fine; and if the Board wants to bring it back, it can discuss it more fully with other options. Chairman Pritchard stated he would like to see the other options; his point is they should provide incentives for blighted and disturbed properties for redevelopment; he has no problem with that; but there may be some other type of incentive and not necessarily 25%, but perhaps 5% or maybe no percent increase in density but other features that might be built into that, so he would like staff to review other alternatives. Commissioner Carlson stated that is fine; and they can strike the 25% and have staff bring back options so everybody will be comfortable. Chairman Pritchard stated that would be fine.

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

Commissioner Carlson stated there are five tabled items, which will take a while; and there is a 6:30 p.m. time certain. Chairman Pritchard stated he would like to go to the time certain.

Commissioner Carlson stated she would like to reinforce and clarify, the Board is sending this forward for Comprehensive Plan amendments; for the zoning items that are going to come before the Board, it will have to take those into consideration; and they have to take each zoning item and look at it for compatibility purposes in terms of the discussion it just had.

Chairman Pritchard stated the small area plan came up months ago; Commissioner Scarborough had a small area plan for a couple of areas of Titusville; and he had a couple in District 2 on Merritt Island. He stated even though these plans have not come to fruition in his case, one of the Planning and Zoning staff left temporarily, that staff person is now back and they can get moving on the small area plan for the Tropical Trail area, both north and south. He stated the plans are in the works in some fashion or another; and they need to get the plan back before they can make a good determination as to where they can go. He encouraged Planning and Zoning to move forward; stated staff already has the names for the participants on Tropical Trail, north and south; and noted when he says south he means south of SR 528, which is still North Tropical Trail. He recommended moving forward with those plans so the neighborhood will know what is being talked about. Mr. Corwin advised there was a recent addition to staff; that staff person will be looking at small area studies; and those plans should all be underway fairly shortly.

CITIZEN REQUEST - DONNA KEPPEN, RE: SOUTH TROPICAL TRAIL ISSUE

Donna Keppen stated she lives on South Tropical Trail; a number of neighbors are present and would like to speak as well; and what they are hoping to do is protect the Banana River Aquatic Preserve the way the Governor intended it to be protected. She stated it was declared an aquatic preserve in 1971 by the Governor of the State of Florida; and there are a number of issues right now, such as derelict boats and people living on boats anchored in the Banana River, which is not healthy for the aquatic preserve. She stated they know they are dumping; but there are not ordinances or funding for enforcement to protect the Preserve. She stated they have done a lot of research on the subject; there is one EPA study; and she would like to
read from the study so the audience will hear a little bit about it. She read aloud, “Have you ever considered the impact of one boater’s untreated sewage? Our coastal resources are a national treasure . . . Did you know that the amount of bacterial pollution from one weekend boater’s discharge of untreated sewage is equal to the amount from the treated sewage of 10,000 people during the same period.” She stated it then goes on about all of the health and other issues that it can cause to preserves; and what they would hope is that they can declare the Banana River Aquatic Preserve a non-anchorage area so it is protected, and at the same time declare areas in the County where boaters can anchor.

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

Ms. Keppen stated along with that, she would suggest implementing a program where there are boats that can go out and pump; one of the reasons boaters dump is because it is not convenient for them to be pumped; and they would like to see a program put together to provide good spaces for the boaters to legally anchor and legally be pumped, and at the same time protect the aquatic preserve. She read aloud from Chapter 18-2.001, “Aquatic Preserves, which are described in Part 2 of Chapter 258 of the Florida Statutes was established for the purpose of being preserved in an essentially natural or existing condition so that the aesthetic, biological, and scientific values may endure for the enjoyment of future generations.” She stated what is happening is a lot of the cities and the counties to the south implement ordinances and a lot of the boaters are moving north. She stated they are filling up the rivers and turning them into their homes; so something needs to be done before the County ends up with a lot bigger problem than it has today.

Commissioner Carlson stated she requested staff initiate an ordinance that would disallow anchorage in the Banana River Aquatic Preserve, similar to the Indian Harbour Beach Ordinance, and also identify other anchorages in the County; what Ms. Keppen brought forward is wonderful because she has done so much research; and she would like to incorporate her information in with what staff has already been requested to do. She stated hopefully Ms. Keppen will have time to assist staff with some of that; and she provided other ideas in her attachments to the Agenda Report. She stated sending a boat out to help purge and that sort of thing is a tremendous idea; she does not know how costly it is or how it could be done; but it is something the Board needs to discuss. She stated it has been a big issue up and down the lagoon; there are not enough outlets for that; and Ms. Keppen also talked about implementing dye tablet programs, the designation of specific areas for anchorage, and having pump out facilities, which are all part of the Manatee Protection Plan. She stated it is good that the community has brought this forward; they know it is an aquatic preserve; but what came to light after the hurricanes is that there are a lot of illegal buoy hookups and things like that. She stated the damage it caused to property owners in the area was severe; and now there are half sunken boats that were lived on at one point but are now abandoned and derelict; so there are a lot of issues in that regard, and the Board looks forward to addressing that. She stated she does not know if the other people who came tonight would like to speak on the same issue, but the Board is going to try to get this done; she does not know the timeline because this is a normal agenda item and not a zoning item, so the Board does not have the necessary staff here; but they will get some input on where it stands currently and who is working on it, and will get Ms. Keppen in contact with them. Ms. Keppen stated she will be happy to volunteer her time to help in any way she can; and a number of neighbors have signed cards and would like to speak.

Chairman Pritchard stated he has five cards on the item; he echoes what Commissioner Carlson said that dumping waste is an issue; the pollutant coliforms and the degradation of the lagoon is an issue; and the Board is going to be addressing the marina siting element of the Manatee Plan because there is a serious problem with boats and no dockage. He stated the alternative is to have the boats go away, which is not always a good alternative; but when there are liveaboards, there is no tax base so it is a free ride; and that is not right because it costs money for people to exist. He stated they should pay also; and the Board should address that.

Commissioner Carlson stated there are a lot of illegal buoys where people have put them out and hooked up; they think they are legitimate, but they are not; and it is not enforced.

Chairman Pritchard inquired where is the boundary between the city and the County when the lagoon is in question; and if the Board enacts an ordinance and references the Banana River Lagoon, how far out would the ordinance go. Interim Assistant County Manager Ed Washburn stated it depends on where the city limits are drawn; some of them are drawn out into the middle of the river; there are definite boundaries; and staff can identify those. He stated some of the issues Ms. Keppen has brought up are also responsibilities of the State; and staff needs to identify those things that the State needs to be doing, has responsibility for, and should be expending funds to do as well as what the County needs to do and can do. Chairman Pritchard stated the Marine Advisory Council has addressed derelict vessels; there were 100 or so derelict vessels they are looking to remove; but it takes money to do that. He stated one of the things the Board will be looking at on Tuesday is waiving fees for picking up a boat and taking it to the landfill; it adds insult to injury when the County starts charging for some things it would like to see out of the water; and it will be addressing that. He stated since the Marine Advisory Council has completed an intensive study, it should be involved with this; it has an interest in enhancing the waterways and safe boating; the Marine Advisory Council is appointed by the Board and has a formal process; and it would be good to have it direct this and focus its attention on this issue.

Commissioner Carlson stated that is fine; she does not have any problem directing this issue to the Marine Advisory Council to assist staff; and Ms. Keppen can work with that group, which is more versed on marine issues, derelict vessels issues, and a lot of other issues.

Commissioner Scarborough stated two things concern him; and the first is the loss of marina space. He stated this is something the Board has discussed; and it goes to the marina siting issue. He stated beyond that, he does not know how much the County has spent over the years on stormwater; and stormwater runoff is far less damaging to the lagoon then dumping. He stated if he heard the figures correctly, treated discharge from 10,000 people is equivalent to one weekend boater; the County is charging everyone the stormwater fee, acquiring expensive property, and doing things to maintain them; but here is a problem that could be easily addressed. Commissioner Scarborough requested staff to see if there are any other counties or municipalities within the State that have a pump boat; and stated it should be mandatory that if someone anchors in Brevard County waters, they have to be certified that they are using the pumping facility. He stated Florida has more coast than almost any other state so he is sure somewhere it is addressed. Chairman Pritchard suggested checking with Broward County and Ft. Lauderdale because they have such boats.

Chairman Pritchard stated the Board has addressed the issue; and it would save significant time if the others did not wish to speak. Commissioner Carlson stated if anyone could add anything to the discussion, she would not have any problem having them speak. Chairman Pritchard stated he will also turn the names over to the Marine Advisory Council so they can be contacted and be part of the solution.

Shauny Kronfield stated there have been two boats behind her house for six months; they are liveaboards; the music is constantly loud; the generators are going all the time; and they are dragging anchors. She stated during the storms it was a real problem; and they damaged several docks. Commissioner Carlson stated in that situation the County should be able to send Marine Patrol to police it; and if there is an encroachment and nuisance on private property on land, there has to be something they can intercept. Ms. Kronfield stated they have talked to the Sheriff and Fish and Wildlife, and they say they cannot do anything because there is no law that says they can only be there a week. Commissioner Carlson stated it would be necessary to create a law to get rid of them. Ms. Kronfield stated when it turns into six or seven months, it is a problem.

Commissioner Carlson stated there is an interest in expediting this for obvious reasons; and they need to make sure the Marine Advisory Council understands the seriousness of the issue.

The meeting recessed at 7:09 p.m. and reconvened at 7:29 p.m.

PUBLIC HEARING, RE: TABLED ITEMS

Chairman Pritchard called for the public hearing to hear items tabled by the Board of County Commissioners at its meetings of October 2 and December 4, 2003; May 20, August 4, September 2, October 4, October 7, October 19, and December 2, 2004; and February 3, 2005, as follows:

Item V.A.1. (Z0407401) Fred Boozer’s request for change from EU to RU-2-6 on 6 acres located on the east side of U.S. 1, north of Ruby Street, which was recommended for denial by the Planning and Zoning Board.

Commissioner Carlson stated the Board has not heard these items; and now it has to look at these from the context of having a Small Area Plan in process. She stated this is looking at EU going to RU-2-6, which is 13 units to 36 units; and the Board needs to judge that for compatibility and other things discussed previously.

Rochelle Lawandales, Lawandales Planning Affiliates, representing Fred Boozer, stated the applicant and his attorney Rick Torpy are also present. She stated there is considerable familiarity with this parcel of land; it is six acres on the east side of U.S. 1; and they are requesting RU-2-6. Ms. Lawandales stated it is vacant to the north and south; it is consistent with the Comprehensive Plan Policies 3 and 4; and it is consistent with the emerging development pattern that is on U.S. 1, particularly with Laguna Bay to the south and some of the other developments. She stated there are approximately two acres of wetlands, which can be preserved by doing development a certain way; and she will share one initial concept that is designed to identify the preservation areas. She stated the buildings are set considerably far back; they can be shifted to provide more buffers on the south as necessary; but there is considerable open space and green space preserved on the property by going to RU-2-6. She stated it is a beautiful piece of property; the first building will not start until 1,000 feet back, so as one is going up the road, nothing would be seen; the buildings will be built to all Land Development Regulations and building specifications; and they will meet all breezeway and setback requirements as well as Coastal High Hazard concerns. She stated they can meet or exceed all the requirements; it has no impact on any other adjacent properties or the area; there is no impact on traffic, hours of operation, or any of the other things that are looked at in the Comprehensive Plan Policies; and it preserves the environment and provides good quality development. She stated they will be 3,000 square-foot units; they will start at a minimum of $700,000 to $800,000; so by directing this kind of development, compact urban development, into areas where there are urban services, such as transportation, water, and sewer, it is smart growth. She requested the Board approve the rezoning request.

Attorney Mike Minot, representing a neighbor of the subject property who has an application that the Board will hear later this evening, stated it is their opinion that the property is compatible with all of its neighbors as well as the existing development that has already occurred both north and south of the property. He stated the Riverway development, which is some way to the north is fully developed at RU-2-10 with a cap of six, which is identical to the density that is being requested on this item; south is Laguna Bay, which is under construction now and is at the same density; and the area is emerging and developing in that way. He stated there is an adequate distance between U.S. 1 and the river, unlike some of the other parcels to the south of this area; and on a compatibility basis and a concurrency basis, because no thresholds are tripped in any of the requirements, this is appropriate, and they support the application.

Commissioner Carlson stated Ms. Lawandales pointed out the issues of the wetlands and how they are trying to make it as deep as possible; and there is no issue of septic tank so there is no impact as far as the lagoon. She stated some of the concerns with the Small Area Plan were the issues of septic tanks and allowing any sort of condominium scenario; with the Small Area Plan, they said any vacant property should go from Residential 15 to Residential 6; and this is in keeping with that, so she does not have a concern with this item in particular. She inquired if it is two stories over garages; with Ms. Lawandales responding it is three stories over garages. Commissioner Carlson stated it would be 35 feet over garages, which is what the Code provides for; and inquired if it is on Class 2 waters; with Ms. Lawandales responding she believes so. Commissioner Carlson stated it has to have a setback of 100 feet; with Ms. Lawandales advising they were looking at a 50-foot setback, but if it is 100 feet, they will meet it.

Sherry Williams with Natural Resources Management stated it is a 50-foot shoreline protection buffer, which is a little different than a setback so there would be a 50-foot wide buffer, and it if is native vegetation, it has to remain. Commissioner Carlson stated this is strictly zoning; what they actually get to develop on the property may not be what the picture reflects; and the applicant understands that. She stated this fits in with what they were expecting.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to approve Item V.A.1.

Commissioner Scarborough requested Ms. Lawandales point out the north property line; with Ms. Lawandales doing so. Commissioner Scarborough stated the one unit is very close to the property line; with Ms. Lawandales responding the setback in RU-2-6 is seven and a half feet and it is set at ten feet; but this is just one iteration, and there is room to shift the building as needed to meet any other requirements. Commissioner Scarborough inquired if the adjoining property owner is represented tonight; with Commissioner Carlson responding yes, by Mr. Minot, and the area to the north is vacant. Commissioner Scarborough inquired if Mr. Minot saw the layout of the property; with Mr. Minot responding this is the first time he saw it. Commissioner Scarborough inquired if it appears to be a problem; with Mr. Minot responding he is not sure his client would have a problem with anyone who develops under the current Land Development Regulations. Mr. Minot stated he does not think a neighbor can say anything about another neighbor who develops consistently with the Comprehensive Plan, the Code, and Land Development Regulations. Commissioner Scarborough stated sometimes there are binding development plans that show the layout; and the dynamics of this are not just that it is close, but that it is large and close, which is why he asked the question. He stated if Mr. Minot feels his client is happy with it, he does not have a problem. Mr. Minot stated he cannot comment on the degree of his client’s happiness; and he has not seen this plan before. Commissioner Carlson stated she did not think of that perspective because there is a shadow effect; Mr. Minot’s client’s item is coming up shortly; and she does not know what he has in mind. She inquired about the buffer. Ms. Lawandales stated what is shown is just an artist’s rendition; but as they will discuss under Item V.A.4, there is considerable distance between the buildings that are laid out in the first cut of a site plan and the property lines; and she thinks those issues will work themselves out. She stated there is a roadway.

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

Item V.A.2. (Z0407403) Fred Boozer, Jr., Trustee’s request for change from RU-1-7 and BU-1 with existing Binding Development Plan to RU-2-6 with removal of existing Binding Development Plan on 3.38 acres located on the east side of U.S. 1, north of Ruby Street, which was recommended for approval by the Planning and Zoning Board.

Rochelle Lawandales, representing Fred Boozer, Jr., Trustee, stated this is 3.38-acre parcel that is to the north; it has approximately 800 feet frontage on U.S. 1; it is just south of Clayton’s Crab House; and it is comprised of two pieces, one BU-1 and one RU-1-7. She stated the RU-1-7 piece is a sliver that cannot be used for anything. Ms. Lawandales stated what they are proposing is to change the zoning to RU-2-6, which matches the intent of the Small Area Plan; it is commercial to the north, vacant to the south, and the development would be limited to 15 dwelling units, even though at RU-2-6, they could get a little bit more because it is a little over three acres; but they are glad to limit it to 15 units. She stated the units would be approximately 2,200 square-feet; and they would be a nice transition in this area.

Commissioner Carlson inquired about the proximity to U.S. 1 and is there a concept plan. Ms. Lawandales responded there is no concept plan at this time; but they will meet all of the regulations; there would be appropriate buffers; and townhome units would have to stay within the 35 feet. Commissioner Carlson stated the only reason she is asking is because it is so close to U.S. 1; and she is wondering what kind of product will be produced; with Ms. Lawandales reiterating 2,200 square feet, starting at approximately $300,000 to $400,000.

Chairman Pritchard inquired if that is 15 units; with Ms. Lawandales responding affirmatively.

Commissioner Carlson stated on the Agenda Request it says 20 units; and inquired if the applicant is reducing the request to 15 units; with Ms. Lawandales responding it would be limited to 15. Commissioner Carlson inquired if there is a bald eagle on the property; with Ms. Williams responding the bald eagle nest is located on the Viera Industrial Park site to the west; and staff makes note any time a site may fall within the 1,500-foot protection zone. Chairman Pritchard stated that is across U.S. 1; with Ms. Lawandales advising it is across the railroad tracks. Commissioner Carlson stated this is in keeping with what was passed in the Small Area Plan and the intent of the Plan.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to approve Item V.A.2 as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

Item V.A.3. (Z0408401) Donna E. Connors’ request for amendment to an existing Binding Development Plan in an EU zone to limit density to four residential homesites on 2.2 acres located on the east side of U.S. 1, north of Anderson Way, which was recommended by the Planning and Zoning Board for approval with a Binding Development Plan limiting development to three residential homesites and one driveway access to U.S. 1.

Commissioner Carlson stated this item was brought back because there was a binding development plan to limit it to one additional unit; they wanted four units; and the P&Z Board’s recommendation was to limit it to three with one driveway access to U.S. 1. She inquired if this is what the applicant wants to do; with Attorney Philip Nohrr responding that is correct. Commissioner Carlson stated since they are staying with the impact fees and schools are not the issue any longer, she will make the motion to approve the item.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to approve Item V.A.3 with a BDP limiting development to three residential homesites and one driveway access to U.S. 1 as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

Item V.A.4. (Z0408403) Malinda K. Boren, Trustee and Mark Chaffiot, Trustee’s request for change from AU to RU-2-12 on 10.3 acres located on the east side of U.S. 1, north of Ruby Street, which was recommended by the Planning and Zoning Board for denial of the applicants’ amended request of RU-2-10.

Attorney Mike Minot, representing the applicants, stated there is a change in the application; the original request was for RU-2-12; but consistent with the other things that have been taking place this evening and discussions with staff, the application has been changed to RU-2-10 with a cap of six, which is similar to the things the Board has been discussing.

Rochelle Lawandales, Lawandales Planning Affiliates, representing the applicants, stated this property is the cream in the Oreo, between the other two parcels the Board just considered; there are six acres of uplands on this particular piece; four acres of wetlands would be preserved; and they are talking about 60 units. She stated the plan they used the last time when they were talking about RU-2-10 goes out the window; and everything has to be reconfigured. She stated like the development before, all of the buildings would be centered towards the river; the wetlands at the front near U.S. 1 would be preserved, providing a beautiful visual buffer; and there is a roadway and some distance between the parcels. She stated the development can meet all of the river setbacks and all Land Development Regulations; it is consistent with development in the area; and they would request consideration of RU-2-6 on this piece.

Commissioner Carlson stated she met with all the applicants for all of these and made them understand what the Small Area Plan actually means; and this one was the most dense piece of property, based on its size. She stated the issue was the property to the north is currently AU; and inquired if it is developed or is it abandoned. Ms. Lawandales responded the piece immediately to the north is vacant; there is another parcel to the north of that, which is also owned by the Clayton family where there is a dock and a home; but immediately to the north and at the other end is RU-2-6. Commissioner Carlson stated the piece that is due north is Residential 6, so the property to be rezoned would be similar to the others; it is 60 units, which is based on the size of the property and everything else; but it does fit with the Small Area Plan. She stated she does not know what it looks like since it has changed; she knows they said there are four acres they are intending to preserve; and inquired what is the height issue. Ms. Lawandales responded it is three stories over parking. Commissioner Carlson inquired if Ms. Lawandales, as the representative of both properties, is going to make sure they are compatible in terms of height; with Ms. Lawandales responding yes. Ms. Lawandales stated the units will start at 2,300 square feet and go up to 3,200 or 3,500 square feet; and they will probably start at $700,000 to $800,000, if not higher.

Chairman Pritchard noted in 1993 there was not a property listed at $700,000 or $800,000 and now they are everywhere.

Commissioner Carlson stated they have to go through the site plan approval process, so what the Board sees may not be what it gets because they are trying to put a lot on the property. She stated they are reducing the number by half.

Commissioner Voltz stated Mr. Minot suggested RU-2-10 with a cap of six; and Ms. Lawandales said RU-2-6. Commissioner Carlson stated that was discussed in the Small Area Plan discussion before Commissioner Voltz got here; and they put a Residential 6 on all vacant properties throughout, down from Residential 15. Commissioner Carlson stated to be consistent and compatible, they are going with RU-2-6. Ms. Lawandales stated they are very comfortable with that. Commissioner Carlson stated they will have the ability to develop up to that, but may not get that because of site plan restrictions.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to approve Item V.A.4 as RU-2-6. Motion carried and ordered unanimously.

Commissioner Colon inquired how long did it take to do the Small Area Study; with Commissioner Carlson responding four, almost five months. Commissioner Colon inquired if it really picked up momentum as far as the data from January to March; with Commissioner Carlson responding that is something they will have to ask staff. Commissioner Colon stated these are some of the things they are talking about in some areas in Palm Bay; and she would not want the process to take too long. Commissioner Scarborough noted there is a new employee to help move things forward a little.

Item V.A.5. (Z0407402) Antonio Z. Camara, Jr. and Mary A. Camara, Co-Trustees’ request for Small Scale Plan Amendment (04S.7) to change the Future Land Use Map designation from Community Commercial to Residential 10; and change from BU-1 to RU-2-10 with CUP for residential/recreational marina on 4 acres located on the east side of U.S. 1, north of Otter Creek Lake, which was recommended for denial of the Small Scale Plan Amendment by the Local Planning Agency and denial of RU-2-10 and CUP by the Planning and Zoning Board.

Commissioner Carlson stated this is in the area they spoke of between Suntree Boulevard and Pineda Causeway.

Attorney Philip Nohrr, representing the applicants, stated they have been talking about an area that they have generally described as south of Rockledge Drive down to Pineda Causeway; he wants to orient the Board to the very south end; and the parcel in question is significantly different than the other parcels the Board has been talking about. He pointed out the area on a map and stated it is known as Sun Harbor Marina; it is approximately four acres; the property is highly developed as a boat repair and storage facility; and across the street is intense commercial with Rinker, a motorcycle place, and retail boat sales on the east
side. He stated on the east side is a less than attractive looking facility that was developed years ago with no type of retention or environmental protection that everyone is used to today. He stated U.S. 1 sits at a level of 16 feet higher than the east end of the property where it goes into the river; and this means as the rain comes along, any petroleum products on U.S. 1 will sheetflow off onto the property, mix with the petroleum products there because this is an active boat repair facility, and go off, so it is not environmentally friendly. He stated there is a place for gas tanks; there are boat repairs on the south side; there is a place for a heavy lift to
take boats out of the water and bring them to be worked on; there is storage; and there are boats. Mr. Nohrr stated it is a private marina; there is no submerged land; there is no access to the public; and the public is not allowed to launch boats from this facility, so this is not an issue that the Commission has been dealing with in other matters. He reiterated it is strictly a private marina; it is fenced and gated; it is not open on weekends; it does not allow access to the general public; and regardless of what happens, that will not change. He stated immediately to the south there is an application to develop a restaurant; to the north is a gray structure that has some boat storage; and the point he is trying to make is that it is an intensely developed area with no environmental protection. He stated what they would like to do is clean it up and present a much nicer and friendlier type of use adjacent to the ramp park that the Board just put in; and presented a depiction of a 40-unit development. He stated it is not what they are asking for tonight, but it is a 40-unit development in three buildings with no height variance requested; it is all going to be four floors, three floors above parking; they are talking about ten-foot ceilings and high-end condominium units; and today that seems to be the market. He stated as they go north from the property, after the gray building, there is a motel with a house associated with it; it is 1.2 acres being utilized at 8.33 units per acre; and what they are going to be asking for tonight is the equivalent of 7.5 units per acre, down from ten units they were asking for. He stated immediately north of that is a parcel with seven houses on it, so there is intense residential development to the north; but there are natural break points; and he is suggesting the property before the Board tonight is ripe for redevelopment. He stated it is an ideal time to come in, increase the tax base, and clean it up; and it is not going to distract from anyone’s view of the river because of the height difference. He stated it goes from 16 feet from U.S. 1 down to the river; there is going to be plenty of open space there; and they are going to create a beautiful image for the community. He stated the County already started investing in the ramp park; the restaurant is coming in next; and this would be an ideal way of continuing that development. He stated he knows of no objection; they talked to all of the neighbors; he has not heard of any objection; and by giving them what they are requesting tonight, the Board is not going to be opening the door to the creeping higher type of residential development. He stated this is a unique piece of property; it is fairly narrow; and going north on U.S. 1 there is a lot more depth. He stated some of the projects the Board heard about have wetlands; they have a lot more area between U.S. 1 and the river; and that is not the case on this property, so they do not have that flexibility with undeveloped land or a lot of depth. He stated everyone is going to try to get to the river; that is where the action is; and that is what makes the project economically feasible. He stated that is their project; they think it is a significant improvement; and they would be pleased to take any questions or comments.

Commissioner Carlson stated in terms of the Small Area Plan, they did not consider residential in this particular area; this is the option 5 they talked about in terms of redevelopment and that sort of thing; and the action the Board took was to look at that, but it might be a long-term process, so she is not sure how it can be applied at this point. Commissioner Carlson stated currently it is Neighborhood Commercial. Mr. Corwin advised it is Community Commercial. Commissioner Carlson stated based on the Comprehensive Plan requirements, if it were to stay that way and they developed it like this, it could only get Residential 4, which is the closest residential property to the applicant’s property; but since they are talking redevelopment and it is
surrounded by other commercial establishments, she does not have a problem with it as she would if it were around other nicer residential communities. She stated this would require an additional Comprehensive Plan amendment because it would change the Community Commercial to a Residential 6 density, which would be consistent with all the others in the Small Area Plan area, so the request is for RU-2-10. Mr. Nohrr advised they would cap that at 7.5 to get to the same point. Commissioner Carlson stated she does not know if they can go there or not; they have to be consistent with the rest and make it RU-2-6; and then if they deal with the redevelopment thing, they can talk about it as well. She stated they can have one motion for this and then the motion for zoning could be something that considers the redevelopment if the Board desires.

Motion by Commissioner Carlson seconded by Commissioner Colon, to move forward with a small scale plan amendment to reflect an RU-2-6 designation.

Commissioner Voltz stated she likes the environmental impact the applicant is going to take care of; and that is important for the area.

Commissioner Carlson inquired how many slips are they reducing; with Mr. Nohrr responding from 50 down to 30. Commissioner Carlson inquired is this a private or public marina; with Mr. North responding it is currently private and will remain private. Commissioner Carlson stated there has been issue at the State level about public marinas. Chairman Pritchard advised this is not sovereign submerged land. Commissioner Carlson stated it is private anyway so there is not that issue; it was never going to be open to the public as it was; it is a working waterfront; but it is up for grabs today because they are not interested in being a working waterfront any longer.

Chairman Pritchard advised there is a motion on the floor; and inquired if Commissioner Carlson wants to address the motion at this point. Commissioner Carlson responded she was just making a couple of comments and then the Board can vote on the motion. She stated she wanted to make a couple of clarifications; and inquired how far is the access point to the property from the ramp of the Pineda Causeway onto U.S. 1. She stated she was thinking of the traffic circumstances and if there is going to be any traffic loading at a critical point. Mr. Nohrr advised the access point is at least 700 feet from the ramp. Chairman Pritchard advised it is more than that. Commissioner Carlson stated she thinks it is more too, but she is assuming through the site planning process, that will be addressed as well. Mr. Nohrr stated 700 feet is the number that is always given as far as a conflict point; but he is hearing that it is considerably more, which is great. Commissioner Carlson stated the motion on the floor is for RU-2-6 zoning, which will give the ability to go up to six; and then she was wondering about the issue on the redevelopment and any density increase; and she knows Chairman Pritchard is concerned about that, so she is not sure the Board can go there at this time. Commissioner Carlson stated what they have right now is six units to the acre; hopefully that will be sufficient; then they can address the redevelopment scenarios at a later time; and inquired if that is what the Board wants to do. Commissioner Voltz inquired when; with Commissioner Carlson responding she does not know. Commissioner Carlson stated it is going to take some time; they have asked staff to come back with legislative intent to look at the options for providing redevelopment incentives throughout the County so they are not just pigeonholing this one; and it needs to apply to the entire County. Chairman Pritchard stated what he said was that he hates to provide increased density as an incentive; he does not know what other incentives might apply; but perhaps in working with staff, they may develop some other incentives. He stated there may be requirements that he is not aware of that would apply that might be to the applicant’s benefit if they were considered incentives and he did not have to do them; but since he does not know, he cannot offer a suggestion. He stated the only thing he is concerned about is providing increased density as an incentive.

Mr. Nohrr advised they are getting swept into a bigger issue. Commissioner Carlson stated that was her only concern because there was a discussion about it; she is only one Commissioner; and she can throw out a suggestion but cannot guarantee a response. Mr. Nohrr stated as he saw this unfolding, he realized what was happening; and he is happy to work with staff. He stated there may be other things that could be incentives based on environmental issues that may be unique to this property; and he certainly wants to explore that. He stated the only thing is they have been on hold since October; that is not the Board’s problem, but is the applicant’s problem; this is an extremely expensive piece of property; when they came in at ten units per acre, it worked; after the meeting they came down to 7.5 units per acre, and can make it work; but it does not work at six units per acre. He stated they are going to have to take a leap of faith because they are out of time; they either have to buy or move on; and he is hearing encouraging words with no commitments. He stated they have to go back and create something that hopefully might be acceptable; but when they create, they cannot create just for this property, so it is going to have ramifications beyond them, which puts them in a bind. He stated he was hoping this might be the property that could be RU-2-10; that is why he talked about the natural break; to the north there is already the equivalent of RU-2-8 in existence; and while he knows the Board wants to keep this down to RU-2-6 no matter how good or bad their project is and does not want them to become a Trojan horse for some to come in behind them, they would suggest that right there with the motel is the break. He stated in light of that, they hoped to get some consideration tonight for 7.5 units per acre, which would be less than the neighbor to the north with the operating motel.

Commissioner Carlson inquired based on some of the other actions the Board has taken and the dollar values that the property units might sell for, does the applicant think he cannot make enough money on the project with 24 units. Mr. Nohrr deferred to the developer. Commissioner Carlson stated they do not want to convince the applicant not to develop; the Board is considering what is being suggested; but she just wanted to ask that question.

Charles Boyd stated the real problem is all the pieces that have been brought to the Board tonight to the north of this piece are very deep pieces; his piece is 375 feet deep; but most of the other pieces the Board has seen have been 1,000 feet to 1,500 feet deep. Mr. Boyd stated at six units per acre, looking at the site plans that have been before the Board tonight, all of the condominiums have been down at the river and there has been all the property going up to U.S. 1 to mitigate the density; but his parcel is a very shallow piece and most of the property is right on the river, so it becomes expensive on a per unit basis; and they were hoping that the recommendation of 7.5 units per acre would be a compromise. He stated it is tight at 7.5 units per acre, but it is something they can make work. Chairman Pritchard stated that would take it to 30 units. Mr. Boyd stated their current site plan shows 40 units; they had traffic studies done for 40 units; and that provides a lot less traffic than the current marina does. He stated if they go from 40 down to 30, it is a much less impact; there will be more open space than what is shown; and everything will be very positive. He stated they do not have a problem coming up with additional buffers or environmental breaks to protect the riverfront in order to go to 7.5 units per acre; and it is an environmentally sensitive piece because it is so shallow and right next to the river. Chairman Pritchard stated Mr. Boyd can understand his dilemma.

Commissioner Scarborough stated he is curious about the numbers; and inquired going from six to 7.5 units per acre, how many units are picked up; with Mr. Nohrr responding six, from 24 to 30 units. Commissioner Scarborough stated Mr. Boyd was mentioning the depth of the lot affecting it, which goes to the density; but there is also an impact to the lagoon as they are very deep lots that can have a lot of clustering at the lagoon. He inquired if that was looked at in the site plan process. Commissioner Carlson stated she has not looked at any of the site plan issues; but she has seen the concept plan. Commissioner Scarborough stated as they get to the Small Area Plan, there might also be some questions, if they have a very deep lot, about the impact created on the lagoon. Commissioner Carlson stated Mr. Boyd said there was mitigation of the wetlands on the other lots that were deeper; she is not sure she followed that logic because this is a wide open piece that sits off the Pineda Causeway; and obviously it would be nice to have an attractive development; but she would think that they would want to have some vegetation and things like that around it as well. She stated it is a narrow piece; and she does not know if that would give it any extra points because it is so narrow.

Chairman Pritchard stated he can see the value of having this come in; but everyone can understand his concern about providing a bonus for density. He inquired in a situation like this where there was the type of operation that it has been, is the Board setting a precedent for other types of development, such as an old shopping center or a blighted house that is on a large piece that would come down and something else would be built. He inquired is it palatable to go with the request for 7.5 units per acre without setting a precedent. Zoning Manager Rick Enos stated the only way to get seven units to the acre on this parcel is through a Comprehensive Plan amendment to ten, and then a multifamily zoning at RU-2-8 with a cap of 7.5 units, so that in itself would not be a precedent. He stated the bonus is not available yet in the Comprehensive Plan to give them; the Board cannot give something it does not have yet; and no one knows whether the bonus will happen or not because that is a future decision of the Board. Mr. Enos stated he does not believe it is a precedent as much as it is a decision as to whether this is appropriate for a Comprehensive Plan amendment to ten units to the acre. He stated if at some point in the future, the Board decided to go with a density bonus, then it could do an amendment back down to Residential 6 and the zoning at 7.5 units per acre would still be consistent with that because of the bonus, but at this time, it is just not there. He stated the Board is going to have to go with a Comprehensive Plan amendment to ten to consider zoning at 7.5 units per acre because there is no gap between six and ten in the Comprehensive Plan.

Commissioner Carlson stated she wants to be able to look at the existing area knowing it is commercial in there and that the Board recently did RU-2-6 throughout the whole area for those lands that are vacant; but this is not vacant land, it is developed commercially; and what the Board is stuck with is trying to see if it can squeak out 7.5 units versus six units, which would be more consistent with the whole area. She stated this particular segment of the area is different because of the commercialization that is there; she does not know if this sets a precedent to change that from commercial to residential; but she hopes not because that is not the intent. She stated with the concept plan, they are hoping they are going to have something nice because when people come over the bridge, that is what they are going to see; and it is more important for this to look nice than those that are hidden way down by the lagoon. She stated her only concern is that more density right there may not be as attractive as the density on those parcels further north.

Commissioner Colon stated the Board’s job is not to make people a profit; and if the Board is going to rezone this parcel and consider everything Commissioner Carlson said, that keeps it right in line. She stated they did the Small Area Plan to make sure they are protecting the integrity especially on U.S. 1; she has no problem redeveloping it and allowing this; but the Board should stay consistent and six should be where it needs to be. She stated this is Mr. Nohrr’s third time getting caught in the middle of issues like this; and she realizes he is getting the short end of the stick. Mr. Nohrr joked about whether he could get sympathy points.

Commissioner Scarborough stated in Titusville Nelson Marina sold; it was a working boatyard and is going to condominiums, which would probably enhance the overall aesthetics; but the whole community is concerned about the closure of the working boatyards and even though the alternatives is more aesthetically pleasing, they wish they had a working boatyard. He stated he will have great difficulty in creating an ordinance that would give a bonus to close boatyards to put in condominiums because that is totally contradictory to the flack the Titusville City Council is getting. He stated the City Council could not stop it; people have a right to sell property; he does not know if that would fall within the classifications; and that is why he would be careful in telling Mr. Nohrr that he would have his vote at this juncture. He stated there is an economic function for bringing the more expensive boats and boaters into a community; they need the boatyards; and when the County does not have boatyards, the dilemma becomes not attracting people into the area who bring money in. He stated they have run all kinds of economic data; and it is not a loss to the community but a benefit to the community to be a boating community when there is an area with three million people to the west who cannot access the intercoastal waterway; so there are some dynamics to considering this a negative as opposed to a positive.

Mr. Nohrr stated he knew he was walking a fine line; the whole issue of marinas has popped up since this was heard on its own merits to begin with; and if he was working with staff, he would now know to stay away from the working boatyard and talk about just environment.

Commissioner Carlson stated she does not have any other comments; there is a motion on the floor; and they should vote.

Commissioner Scarborough inquired what is the motion; with Commissioner Carlson responding it is for RU-2-6. Mr. Enos advised there was a Comprehensive Plan amendment associated with this item as well as a CUP for recreational/residential marina; and he assumes the Board is approving that. Commissioner Carlson stated it is all part of the motion.

Chairman Pritchard called for a vote on the motion to approve Item V.A.5 as RU-2-6 and CUP for residential/recreational marina; and adopt Ordinance amending Article III, Chapter 62, of the Code of Ordinances of Brevard County, entitled “The 1988 Comprehensive Plan”; setting forth the Seventh Small Scale Plan Amendment of 2004, 04S.7, to the Future Land Use Map of the Comprehensive Plan; amending Section 62-501 entitled Contents of the Plan; specifically amending Section 62-501, Part XVI (E), entitled The Future Land Use Map Appendix; and provisions which require amendment to maintain internal consistency with these amendments; providing legal status; providing a severability clause; and providing an effective date. Motion carried and ordered unanimously.

Chairman Pritchard advised he met with Mr. Nohrr and the applicant.

Item V.A.7. (Z0501503) Robert P. and Victoria L. Hemming’s request for CUP for Guest House in RU-1-11 zone on 0.86 acre located on the east side of Vermont Street, north of Milwaukee Avenue, which was recommended for approval by the Planning and Zoning Board.

Mr. Enos stated this is an application to request a conditional use permit for a guest house at their property on Vermont Street, which is zoned RU-1-11.

Chairman Pritchard stated he spoke to Ms. Hemming earlier today.

Victoria Hemming stated the content of the proposal being presented tonight is for a conditional use permit for a guest house for her parents to reside directly behind her current dwelling; she and her husband looked for two years before they found property to build their home; they designed the house themselves and put a lot of work into it; they spent every evening and weekend for nine months working on it; and they put their blood, sweat, and tears into it. She stated they take pride in its appearance and would extend that to the guest house as well. She stated the neighbors might have a concern that they plan on moving; but their whole life is in the house; they love where they live; and they plan to retire in the home. She stated she has a 91-year old grandmother; they have good genes in her family; and it looks like her parents will be around for a long time. She stated the intent is for the property to maintain its natural appearance with the pine trees, providing privacy and buffers; it would not be seen from the road; the exterior of the guest house would match their current dwelling; and the guest house would be for the sole use of her parents and would not extend to anyone other than family. She stated it will not be rented out ever. She stated she is a native Floridian and her husband moved to Florida when he was two years old; they have a lot of family here, especially on her
side; and they can all lend a hand with her parents as long as they are in a central location. Ms. Hemming stated her sister-in-law and brother-in-law own the property directly behind her; so they are all about family, and are just trying to do the best thing. She stated on February 11, 2005 they had a meeting with Planning and Zoning about other options if the CUP is not approved; one of the options is a breezeway to be connected with the house to the guest house; it would be a totally enclosed structure; and the other option is to subdivide to a minimum of .25 acre. She stated they do not like those options; and the one that works out best for them is the guest house. She stated the other options would be more of an eyesore; and they hope the CUP will be approved. She stated she only fights for the things she truly believes in; she is a proud honorably discharged Sergeant; she was in Saudi Arabia for nine months during Desert Storm and Shield; and she is here tonight to fight for something that is near and dear to her heart, and that is her family. She requested the Board consider approving this particular CUP, if for no other reason than because they are trying to do this for the right reasons and for a good cause. She stated everyone asks where have family morals gone; their family morals are intact because she has wonderful parents; and she wants to give thanks to them.

Don Van Bever stated he supports the rezoning.

Alita Marchand stated it is not that she opposes taking care of one’s parents; she is doing the same thing; her parents moved here from Texas at the age of 70 with medical problems; but they moved into their own home because they wanted their own space. She stated rather than add on to her house, they bought their house a block away; her children can ride their bicycles to go visit their grandparents; and now that her child is 15, he goes over there to mow the yard and things like that. She stated she is all for family; the only thing is the neighborhood is almost all homesteaded; out of 473 homes in the neighborhood only 58 are not homesteaded; and this neighborhood is unique. She stated she does not want rentals in the neighborhood; it will bring values down; they all bought in the neighborhood because they liked the big lots; and almost all of them have .86 acre so they are good-sized lots. She stated because of that they have various kinds of wildlife; a lot of the houses have ponds in the back; and it is a unique neighborhood to be almost in town but still be country. She stated they love it, but they are afraid that the CUP as a separate home on a single lot will open the floodgates. She stated there are plenty of other lots and homes available in the neighborhood that the parents could move into; she lives on the next street and drove around the neighborhood; and within one block either way there were two lots and two homes for sale. She stated that is not including the rest of the neighborhood, but there are probably a dozen streets; so there are other options. She stated a breezeway was mentioned; she is all for putting it all under one roof so someone else will not come in and build a second home on their lot to rent; and the Hemmings say they will not rent the guest house, but other people will. She stated people will want to do that to make more money; and before they know it there will be more houses, more people, more traffic, and that is what they are trying to prevent. She stated there are a lot of other people present. She stated if they just built an in-law suite attached to the house, it would prevent people from putting two or three houses on lots; that is not what they want; and they like having a big pond, having fishing, and having their children ride their bicycles. She stated it is a nice neighborhood; and she does not want it to change.

Judy Van Bever stated she is from Leesburg and the Hemmings are her daughter and son-in-law; and if they had loads of money, they would love to buy property; but there is no way they could afford to buy property in that area. She stated they are delighted that their daughter and son-in-law want them there.

Dr. Kim Maines submitted a petition to the Board, but not the Clerk; and stated it is a petition signed by over 130 of her neighbors in opposition to the conditional use permit. She stated she knows it represents opinions, but it is 95% of her neighbors. She stated they have already talked about the rare and endangered species that are in the neighborhood; they are there because they have large lots with ponds and trees; and if CUP’s are allowed to continue in the neighborhood and chop up the lots, the rare and endangered species will be affected by the increasing density of population. She stated the Hemmings claimed on their petition that they have potable water from West Melbourne; there is no such water from West Melbourne; and they are all on wells and septic tanks. She stated they are discussing additional wells and septic tanks with all of the CUP’s; and if they would attach it by a breezeway or put it in without a well and septic tank, she would be okay with that. She stated the additional wells and septic systems will affect the aquifer; and the property in question is bordered on the north and south by artesian ponds, which qualify for protection under natural bodies of water, but were not mentioned in the petition. She reminded the Board of Section 62-1151(c), which directs it to consider the character of the land use of the property, its surroundings, changes in the condition of the land use being considered, impacts upon the infrastructure, compatibility with land use plans for the area, and the appropriateness of the CUP based on the consideration of the applicable regulations to zoning of the land within the context of public health, safety, and welfare. She stated her public health, safety, and welfare will be affected by increased septic systems and wells jammed into neighboring areas. She stated at the last meeting Chairman Pritchard mentioned that the CUP was designed for cases like this so people could take care of parents before they needed hospital care; she agrees with that and commends the Hemmings for wanting to have their parents with them; but they can have them in their house. She advised she met the Hemmings’ in-laws; she found them to be attractive, articulate, and not at all in need of care; and this is not a CUP for necessity. She stated Section 62-1932 of the Code addresses guest houses; it says they shall have no kitchen; but the plans show a sink, refrigerator, pantries, and plenty of room for a stove, although one is not shown. She stated according to the Minutes of January 10, a submitted sketch depicts a screened porch at the entrance of the guest house; the screened porch is considered area for determining the maximum size of the guest house; and therefore the guest house appears to exceed the maximum size limitations for an accessory building. She stated most importantly, according to Section 62-1932, the structure shall be used for accommodation of family members and temporary guests a maximum of six months; but they have been told this will be the parents’ primary residence and they will be there year-round; and as long as it is their primary residence, then it is not a guest house, but multifamily. She stated RU-1-11 does not accommodate multifamily in any way; and if the Board still feels that this is a guest house and will be continuing its recommendation for approval, then she would like to ask for a caveat. She stated since the Hemmings have promised to stay here until they retire and have promised not to rent out this building, she would like the building to be removed from the property before title to the property can be transferred so the CUP cannot be transferred to another resident.

Chairman Pritchard inquired what is RU-1-11; with Mr. Enos responding it is a single-family zoning classification that permits a single-family residence on a lot that is at least 7,500 square feet in size. Chairman Pritchard stated it was mentioned that there was the potential to subdivide the property. Mr. Enos stated from a zoning perspective it would be possible to subdivide the lot as well as other lots in the neighborhood into two lots because the lot sizes are more than twice the minimum lot size of the classification.

Commissioner Voltz inquired if the Board denies the CUP for guest house that strictly says it cannot be rented out, would they be able to subdivide their lot and build another house and rent it any time they wanted; with Mr. Enos responding yes, assuming they could meet other Land Development Regulations such as those that deal with septic tanks; but he can only speak in terms of the Zoning Code. Commissioner Voltz inquired if each lot would then be almost a half-acre; with Chairman Pritchard responding they would each be a little under half-acre. Chairman Pritchard stated it was also mentioned about six-month occupancy; with Mr. Enos responding that is the limit for use of a guest house by non-related guests; but by any scenario, the structure cannot be rented. Chairman Pritchard stated there are four components to a kitchen: pantry, stove, sink, and refrigerator; with Mr. Enos responding he believes there are three components, refrigerator, stove, and an area to prepare and store food. Chairman Pritchard inquired if a sink is not a component; with Mr. Enos responding it is part of the preparation area.

Gloria Jones stated she has lived on Miami Avenue for 30 years; and her parents lived there for 30 years before her. She stated they have watched the neighborhood develop from very few houses to very few lots; they all have large lots; they are privileged to see the wildlife; and she has wild cranes across the street. She inquired if the Board passes a variance and lets one person build the second structure on one lot, what is to prevent all the developers that are scouring the neighborhoods from coming in and getting variances on everything else. She stated they chose the neighborhood they are in because they liked the large lots; and they would prefer to keep it rural the way it is.

Chairman Pritchard stated the intent was for family; and inquired how can something like this be recognized or prevented; with Mr. Enos responding it is specified in the Code that the purpose is for family members or guests, so it is clearly intended as an accessory use to the residence; and is not a separate and distinct residence that could be rented out as a separate house.

Robert Smith stated this matter is about consistence; the Board has proven consistent in holding homeowners to the Building Codes; and in recent years, he personally knows of three neighbors who were denied variances for workshops of 700 square feet because the Board upheld the Code of allowing a maximum of 600 square feet, even though no septic tanks or wells would have been affected. He stated it is reasonable to expect the Board to remain consistent and not allow an almost 1,000 square-foot building along with septic tanks and well use. He stated they sought the advice of an attorney who advised them to trust the Board to do the right thing, but if not, the attorney has advised of other methods they may employ in an attempt to get the Board to reverse its decision.

Chairman Pritchard inquired about workshops versus this type of structure. Mr. Enos stated he is speculating as to what the comments were; and he guesses they were talking about variances that the Board of Adjustment may have considered to maximum structure sizes for accessory structures that may have been in the Code prior to the last amendment. Mr. Enos stated about a year ago an accessory structure was limited to 600 square-feet; that has been amended and accessory structures are limited to one-half the size of the principal structure; so those variances would not be needed today under today’s regulations.

Charles Petrie stated one thing he heard earlier was about subdividing the land as an option; and inquired who would have access to a subdivided lot in the back of their house. He stated they could not create a flag lot; and inquired how would they have a driveway for their car and what are they talking about here. He stated he does not understand that; and requested the issue be addressed because he does not see that as an option. Commissioner Scarborough stated Mr. Enos said theoretically as a zoning matter it could occur; however, he said he did not know if it could really occur and left it at that because there are many other issues with the septic tanks, setbacks, and other things. Mr. Petrie stated the septic tank and well are major issues; he does not think anyone has addressed the setbacks or limits on the footage; no one has looked at that; and inquired does it get looked at down the line somewhere and then it is denied. He stated it does not appear so because the Board may approve it tonight. Chairman Pritchard advised all the Board would be approving would be zoning. Mr. Petrie stated these are all issues that would have an impact on the community; the community is well over 60 years; lots have been preserved on .86 acre of land with single-family homes; the wildlife, some of which are endangered species, live in the community; and they co-exist with the wildlife. He stated there is a hawk near the property in question; and inquired what happens to the hawk or other species. He stated one of the residents moved into his home two months ago; he said one reason he moved to the neighborhood was so his children could ride their bikes down the driveway and come across the path of a turtle or a bird; and he did not want to have to show his children in a book what a turtle looked like. He stated that is why they like the neighborhood as they do. He stated the petition that has been signed is because the residents want to preserve that; and if this rezoning is allowed, it is nothing more than a Pandora’s box that will swing wide open to anybody and everybody to come in and build a second home on property and rent it out; and it will ruin what has been there for more than 60 years. He requested the Board deny the rezoning.

Jean Petrie stated as a homeowner on Vermont Street, she strongly opposes, along with 100 other homeowners, the granting of this request for a guest house; it would have a negative impact on the environment, the wildlife, the septic system, and the well system; and it would be developer/investor’s dream and a Police Foundation homeowner’s nightmare. She stated it is commendable that the Hemmings want to help their parents to have living quarters close by; she understands the situation well; and children have a responsibility to take care of aged parents. She stated it was a privilege she enjoyed as a child and is something she and her husband do today. She stated her mother’s mother developed Parkinson’s disease when she ws 32 years old and was in a wheelchair when she was 50; and from the day her mother and father got married, her grandparents lived with them in a two-bedroom apartment. She stated after she was born and her sister was on the way, her parents bought their home, and her grandparents came to live with them; her parents had enough privacy to have four children and to have a happy marriage for 55 years until four years ago when her father passed away; and it was a wonderful experience and a blessing to have her grandparents with her. Ms. Petrie stated she could not imagine life without them; and today she and her husband are caregivers so they understand and appreciate the importance of taking care of one’s parents and having this responsibility. She stated they also know that one can make room in an existing home and still have privacy; a separate structure is not necessary; several rooms can be added to an existing home with a private entrance; and both families could have their privacy and yet be cared for and looked after. She stated if another home is allowed to be built on less than an acre, and the Hemmings move away or their parents pass away, it could become a rental property; there is no zoning police to check to see if they have a kitchen, if the property is rented, or whether the occupants are relatives or not; if they are allowed to build, that will allow everyone in the community to also have the right to build another home or guest house for their aunt and uncle; and inquired who is going to check to see if they are really relatives. She stated if it became a pool house, there would not be room for a pool because the property would be taken up by homes; and inquired if the guest house is allowed to be built and they later decide to sell, will the Zoning Board require them to tear down the structure before they can transfer title. She stated that at least would assure them that it would not become a rental property; and they beg the Board to deny the request for a guest house to be built on the property.

Chairman Pritchard stated it was mentioned there are no rental police, and there are not; but they do get complaints from neighbors and Code Enforcement addresses them. He stated he has seen neighborhoods where people have enclosed their carport and rented it out; and it is not until Code Enforcement is notified that any action takes place because the County does not know what is going on. He stated it is usually a neighbor who will report the infraction; and inquired what would prevent someone from renting out a room in their house or renting out any part of their house; with Mr. Enos responding nothing except for Code Enforcement activity.

Robert Hemming stated the issue of subdividing has already been addressed; and advised there is a trailer park with approximately 20 to 30 trailers out there; there are nine to ten septic systems on two lots; and there are two homes at 2180 Vermont Street, which is further up the road. He stated people have told him that they were grandfathered in, so he is not setting a precedent that is not already there. He stated he does not want to step on his neighbors’ feet; this is all about fighting for his family; his family is slowly moving into the area; and as his wife said, his sister owns the property behind them and is in the middle of having her plans designed. He stated they do not plan on leaving; this is not a rental deal; they moved there with their eight-year old daughter; and they plan on living their lives there. He stated they love the area; the neighbors are nice; the area is quiet; and it is a beautiful place. He stated he is opposed to some of the homes that are not taken care of; but he is new in the neighborhood so that is really not his issue. He stated this is for his family; he means no harm to any of the neighbors; and he wants to be friendly and do it the right way.

Chairman Pritchard inquired where does Mr. Hemming’s water come from; with Mr. Hemming responding from a well. Chairman Pritchard inquired if the trailer park is part of the Police
Foundation; with Mr. Hemming responding yes, it is on Oklahoma Street. Several people from the audience disagreed. Mr. Hemming stated it is one street behind him, within one-half mile of his house.

Victoria Hemming stated she does not understand what was asked about potable water; but she thinks that has been covered. She stated they have a floor plan of the guest house showing that it is 50% of the square footage of her house, which is the maximum allowable. She stated the screened porch is part of the 50%; and it is not an addition, but is part of the roofed area. She stated it is never too early to plan ahead; and she does not want to wait until her parents do not want to leave where they are now.

Commissioner Voltz stated the applicants could potentially subdivide the lot, legally build another house, and rent it out without any problems other than needing a septic tank; and to have a guest house, which by law they could not rent out, would be far better for the neighborhood. She stated she supports the request for a CUP for a guest house.

Commissioner Carlson stated this is in Commissioner Colon’s District; she has been out talking to the residents; she has seen this in her District before; and she agrees the CUP is there for a reason and that is why it is for a guest house without the ability to rent out. She stated if the Hemmings could do the accessory use feature that is in Code, that would be a better way to go, but if they can subdivide their lot without even coming to the Board to get authority, that is a viable option. She stated they do have other options; it is their choice; but since there is a CUP for a guest house, she does not see the issue. She stated she knows the neighbors are fearful of what could happen after the fact; but the Board is supposed to judge on facts and not emotions, although that is hard to do when it comes to one’s parents. She stated she understands the Hemmings’ perspective.

Commissioner Voltz stated renting out issue seems to be the major issue with the neighborhood; but if that is the main issue, the guest house would be better for the neighbors because there would be a guarantee that they could not rent it out. She stated if they split their lot, the neighbors do not know what they will get; and they may sell the whole thing.

Chairman Pritchard stated the purpose of creating the Ordinance was to allow for this to happen; and if the Board starts treating each one as some sort individually appropriate or inappropriate action, it will not be in keeping with the intent of the Ordinance. He stated the neighborhood has a valid concern about the opportunity for rental; but someone could close in a carport and it could become a rental. He stated when he spoke to Ms. Hemming, he suggested it should be at attached structure with a breezeway; and if they opt for a breezeway, he will support the request for a CUP.

Commissioner Carlson stated that would be considered an accessory use and they would not use a CUP; they could build the same size as an accessory use with a breezeway as they could with a CUP for a guest house; so that is really the idea. She stated if they would just attach it to the home, some of the residents have said they can live with that; and that would be where she would be more comfortable because that is where the community would like it to go.

Commissioner Voltz inquired if the applicants have a problem with doing that; with Mr. Hemming responding they can talk about it; but he does not think it is an issue. Commissioner Voltz stated if the Board denied the CUP, the Hemmings can build the structure as an accessory with a breezeway and they will not need to go through this whole process. Mr. Hemming agreed if that makes everybody happy and keeps the neighbors on good terms. Mr. Enos advised if there is no CUP and the Hemmings attach the structure to the principal structure, there would be no limit on the size. Commissioner Voltz stated if the Board denies the CUP, they can build with a breezeway attached to the house, and then Mr. Hemming could make it the same size as what he has now; with Mr. Enos responding yes, or bigger. Commissioner Voltz stated they can build a kitchen and everything else with it; with Mr. Enos advising there would be no kitchen.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to deny Item V.A.7. Motion carried and ordered unanimously.

The meeting recessed at 9:03 p.m. and reconvened at 9:17 p.m.

PUBLIC HEARING, RE: RECOMMENDATIONS OF PLANNING AND ZONING BOARD OF
FEBRUARY 7, 2005

Chairman Pritchard called for the public hearing to consider the recommendations of the Planning and Zoning Board made at its meeting of February 7, 2005, as follows:

Item V.B.2. (Z0502102) Glen Michaels and Denise Hoffman’s request for change from BU-1 to RU-2-6 on 1 acre located on the east side of US 1, south of Thompson Avenue, which was recommended for denial by the Planning and Zoning Board.

Commissioner Scarborough inquired if the applicant is present; and no response was heard.

Lawrence Prevatte indicated he submitted a card, but is not the applicant.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to deny Item V.B.2 as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

Item V.B.3. (Z0502201) Fermon and Margie Brown’s request to change from AU to RU-2-15 on 0.5 acre located on the west side of Lean Street, south of Alma Boulevard, which was recommended for approval by the Planning and Zoning Board.

Commissioner Scarborough stated this is in District 2 and there is a recommendation for approval; and inquired if Chairman Pritchard wants a motion for approval; with Chairman Pritchard responding affirmatively.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item V.B.3 as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

Item V.B.4. (Z0502202) Brevard County Board of County Commissioners’ on its own motion, authorized administrative rezoning from BU-2 and GML to BU-1 on 1.43± acres of surplus County property located at the northwest corner of South Plumosa Street and Fortenberry Road, which was recommended for approval by the Planning and Zoning Board.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item V.B.4 as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

Item V.B.6. (Z0502204) Brevard County Board of County Commissioners’ on its own motion authorized administrative rezoning from GML to RU-1-11 of 1.29 acres owned by Brevard County located on the east side of South Banana River Drive, east of the eastern terminus of Via Roma, which was recommended for approval by the Planning and Zoning Board.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to approve Item V.B.6 as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

Item V.B.9. (Z0502303) Micco, LLC’s request for change from GU and AU to RR-1 on 32.244 acres located on the west side of Iris Lane, west of Honeysuckle Drive, which was recommended for approval by the Planning and Zoning Board.

Commissioner Voltz stated she is asking to table Item V.B.9. Chairman Pritchard stated he has cards from people who have been here since the beginning of the meeting. Commissioner Voltz advised people can speak on the item, but she is going to table the item because she does not have enough information yet.

Tracy Garceau stated the development of this land would not be good for their streets; all the traffic would have to come up Honeysuckle Drive; and the P&Z review only mentioned Fleming Grant Road, but people would have to take Honeysuckle to get to Fleming Grant Road. He stated not everyone will go out Fleming Grant Road; the shortest route to U.S. 1 is out Holly Street and Riverview Drive; the roads get narrower all the way; and there are only three exits out of there. He stated there are children standing on the streets; there are no sidewalks; and they are there early in the morning in the fog and dark. He stated allowing this portion of land to be built will allow the density to continue, leading to hundreds of other acres getting even more dense; and a lot of people will lose frontage and be forced out. He stated that is not what they moved there for; there will be bigger problems to change the zoning and make new residents fit than to just leave it as it is; and inquired where will the animals go. Mr. Garceau stated the people in Micco live off wells; he has been there for 44 years and watched the flow of wells slow down; and they all have to use septic tanks. He stated they need all the retention areas to protect the St. Sebastian River; they are in the process of cleaning up the river; and this rezoning cannot possibly help it. He stated it took 30 to 40 years to destroy the Everglades; it will probably take 100 years to fix it; and he does not think that will happen. Mr. Garceau stated this is the only way to change and help preserve the climate; and they have to stop taking away from all the many people who built. He stated they have no one to back them; they need the Board’s help; and they will gladly accept higher taxes to purchase and preserve the land. He stated Honeysuckle Drive cannot handle 239 cars; 67 cars a day is enough; and they already have waiting lines to get on U.S. 1. He stated the land should be left at two and one-half acres per house; 32 is going to be a lot; and there are hundreds more acres to go. He stated it will open the door for more and more people; it says the proposal can be considered under the Future Land Use designation; and requested the Board unconsider it because of the reasons he mentioned. He stated the land was purchased with AU or GU zoning with no promise of change; Planning and Zoning recommends approval; and inquired what about the people. He stated he hopes it matters that there are more of them; there is a lot of wetlands out there; and it is a lot wetter than they know. He stated there was an attempt some years back to do a citrus grove where they dug the ditches to drain the land to make it dry enough to grow citrus trees, but it would not work and they abandoned the project. He stated it is still too wet; the ditches should have been leveled out and left like normal; that is their retention and their land; and water needs to take a natural course, go through the land, and soak in naturally, and not be shot straight out to the rivers. He stated it should be left at two and one-half acres per house; the roads will not fit everybody; and it is easier to leave it like that than go through the headache of trying to fit them all in.

Allen Thorn stated he has a copy of the rezoning review worksheet where staff did a study on the trips from the existing zoning and trips from proposed zoning; the existing zoning number of trips was 66.85 trips; the proposed zoning trips number is 238.75; and inquired if that is based on Fleming Grant Road. Mr. Enos responded no, it is just the expected traffic generation from the project under its current zoning and the expected traffic generation under the proposed zoning. Mr. Thorn inquired it is traffic to where; with Mr. Enos responding it is the traffic that would be coming off that site to wherever it goes. Mr. Thorn stated the assumption is they will take Fleming Grant Road to U.S. 1; and inquired if he is correct; with Mr. Enos responding the analysis is not sophisticated enough to determine where the traffic will go. Mr. Enos stated all the study does is estimate the traffic generation from the site. Mr. Thorn stated his concern is people who take Fleming Grant Road to U.S. 1 have to go approximately three miles north to get to U.S. 1; but if they just go over the railroad tracks, they go right through Little Hollywood, which is a concern of the residents of the area. He stated they cannot support that kind of traffic; and requested the item be tabled for review.

Commissioner Voltz stated that is what she is going to do; and on March 10, 2005, she will be at the Micco Homeowners Association meeting with the people from the project so they can ask some of those questions, get answers, and tell them what the people want. Mr. Thorn inquired how the residents can be notified; with Commissioner Voltz responding it will be at the April 7, 2005 meeting.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to table Item V.B.9 to the April 7, 2005 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item V.B.10. (Z0502401) John Powell Jones’ request for change from AU to RP on 0.39 acre located on the northeast corner of McIver Lane and US 1, which was recommended for approval by the Planning and Zoning Board.

Commissioner Carlson stated this is compatible with the Comprehensive Plan; it is on either side of the frontage of U.S. 1; and it is also commercial so it is an appropriate zoning.

Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to approve Item V.B.10 as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

Item V.B.12. (Z0502501) Michael C. Gagnon and Waltraut Gaccione’s request for change from TU-1(20) to RU-2-15 on .71 acre located on the east side of Highway A1A south of Pine Tree Drive, which was recommended for approval by the Planning and Zoning Board.

Motion by Commissioner Colon, seconded by Commissioner Scarborough, to approve Item V.B.12 as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

Item V.B.13. (Z0502502) The Mary A. LLC’s request for change from GU to AU on 920.25± acres located on the south side of Centerlane Road, west of Babcock Street, which was recommended for approval by the Planning and Zoning Board.

Attorney Richard Torpy, representing the applicant, stated Ron Stewart is also here on behalf of the applicant. He stated from meetings he had with the Commissioners he knows this particular site presents some questions, particularly to Commissioner Colon, since it is her District; and he wants to talk about what it is. He pointed out the Future Land Use Map; and stated at the extreme south is an area highlighted in black, which is what he is talking about; it is 920 ± acres; and it is currently zoned General Use. He stated GU is a holding zoning; in 1988 when the County zoned a lot of property, the Code said when there is no specific development going on and no identifiable pattern, it zoned a lot of things GU. He stated more importantly in 1988 on the Future Land Use Map, which was approved by the Department of Community Affairs, the Brevard County Commission designated his clients’ property and the whole area shown in lighter green on the map as AU at one unit per two and one-half acres. Mr. Torpy stated the Zoning Code talks about AU as being the smallest zoning classification for residential; and the Comprehensive Plan policies actually say AU is the smallest single-family residential designation; and apparently in 1988 the intent was that AU would be one unit to two and one-half acres. He stated north of the parcel is the Deer Run Subdivision that is currently zoned AU; it was zoned GU; but was rezoned to allow the Subdivision to go in at one unit per two and one half acres. He stated to the west of the property is land also controlled by his clients, which is currently GU with a Future Land Use designation of one unit to five acres. He stated the other purpose of using the AU zoning is a buffering transition from less dense to more dense zoning; thus the pattern the County set up in the Future Land Use Map in 1988 was to go from General Use at one unit to five acres to AU at one unit to two and one-half acres; and then east of South Babcock Street the designation goes to one unit per acre, which is a much higher density. Mr. Torpy stated what is set up by the Comprehensive Plan is the traditional buffer zoning as it goes from less dense to more dense; and then eventually to U.S. 1, which is far away from the property in questions, but is very high density at four units per acre. He stated he knows there are a lot of subdivisions and development going on; the staff report says the property is compatible, consistent, and meets all levels of service; and the only comment in the staff report was regarding schools, which today the Board directed would not be put on staff reports any more as the school compatibility issue has been resolved by virtue of passing of the school impact fee. He stated if it were not for the fact that there is a lot of activity going on down there, this probably would not even be a discussion item; the Commissioner has a concern with what is going to happen down there; and she has said she would like to know more about what is going on in the area, which he appreciates. He stated the Small Area Plan that Commissioner Carlson just did, which was talked about earlier this evening, is his neighborhood; every one of the zonings that was approved tonight is just north of his home; and it was interesting that a study was done in that area; but the area in question now is approximately 25,000 acres of land with some unique problems, so they are not going to be able to do a quick small area study. He stated currently everything north of Deer Run, from I-95 west is under an application for annexation into the City of Palm Bay; he was told by the City Manager just yesterday that those are being considered in the mid-April to May timeframe; and whether the City moves forward with those or not, no one knows what is going to happen. He stated the average density in those areas is approximately one unit to one acre; that slows down the ability to study anything because the County does not know if the land is going to be annexed into the City or not; and inquired what is the County going to study. He stated the County is going to have to wait to see what the City of Palm Bay does; earlier this evening the Board met with the City of Cocoa concerning a challenge to the City’s annexations; and they were talking about a lot of time to hold a 900-acre piece of land. He stated the rezoning from Mr. Boozer was a six-acre parcel; he was present in October when that was tabled and this is March; and the rezoning before the Board is 932 acres at an approximate cost of $150,000 a month. He stated he appreciates the desire to study; but the question is what are they studying. He stated the City of Palm Bay has plans to look at putting a traffic corridor in there; it is in the concept stage; the Board has been doing this a long time; and they still could be talking about this a year or two years from now. He stated he has a 900-plus acre piece of land they are asking to rezone to make it consistent with the County’s Comprehensive Plan; every zoning the Board has talked about tonight was to take something from what it was currently zoned, which was different from what it was on the Future Land Use Map and make it some third thing; but they are not asking the Board to make this property a third thing, but are asking to make it what the Board designated it for in 1988. Mr. Torpy stated the Comprehensive Plan requires, in Objective 15, for the County to eliminate inconsistencies between the Comprehensive Plan, the Zoning Regulations, and the Land Development Regulations, and reduce the number of existing land uses, which are nonconforming to the Comprehensive Plan. He stated there is even a policy for administrative rezonings that says the County staff may initiate administrative rezonings for those properties that are found to be inconsistent with the Future Land Use Map; and this property probably should be coming in by administrative rezoning as the current GU is inconsistent with the Future Land Use Map. Mr. Torpy stated they need to make it consistent with the Future Land Use Map; he does not know if other folks with the same zoning are going to come in and ask to have their properties rezoned similarly; he cannot control those; but he can control this property. He stated this is a client who had considered various proposals, but decided to go exactly consistent with the Comprehensive Plan; it is exactly what the County asked them to do and what the laws require them to do; and they have a staff report that says they have complied all the way down the line. He stated this a no brainer because they are doing exactly what the County told them to do. He stated he knows that Commissioner Colon wants an area study down there; and inquired even if they studied the area for the next six months to a year, does the Board think it is going to see a density higher than one unit to two and one-half acres in this area. He stated that is not what the Board decided in 1988 when there was not the population growth there is now; in 1988, it decided that one unit to two and one-half acres was okay there; and he seriously doubts that the study is going to say this should be less dense than one unit per two and one-half acres. He stated they have a serious issue with the cost to the client for more studies; and requested the Board simply rezone the property to comply with the Comprehensive Plan. He stated they are not asking for special favors or special consideration; and they just want the Board to use its own laws and apply them to this property.

Commissioner Colon inquired what other land does Mr. Torpy’s client own. Mr. Torpy responded they do not own anything; it is under contract to purchase; and they have control of a total of 3,200 acres in the area. Commissioner Colon inquired if those are also going to be two and one-half acres per home; with Mr. Torpy responding that would require a Comprehensive Plan amendment, which they filed for just to get the process moving; and they have been working on this for almost a year. He stated the process was not moving, so they filed two different applications; the main one they wanted to move forward was the one before the Board at one unit per two and a half acres; and they understand they will have to wait for the Comprehensive Plan amendment. He stated they had many conversations with staff about using the Open Space Ordinance and staying with the one unit per five acres that is out there; they like the Open Space Ordinance and find it to be an asset because they can use large open corridors; there is a density bonus for using that Ordinance; and they may well be withdrawing a Comprehensive Plan amendment, but that is not the issue right now. Commissioner Colon stated that was not her question; her question was is it going to be two and one-half acres per home; with Mr. Torpy responding he does not know. He stated right now it is one unit per five acres; that would require a Comprehensive Plan amendment; they do not have a Future Land Use designation on that like they do on the parcel in question; and it may remain one unit to five acres. Commissioner Colon inquired how about to the east; with Mr. Torpy responding that is not under their control; it does have a Future Land Use designation of one unit to two and half acres, which is the policy the Board set in its Comprehensive Plan. Commissioner Colon inquired how are they planning on getting to the property; with Mr. Torpy responding it is connected directly to Babcock Street by a road called Center Lane or Center Line, depending on who you talk to. He stated there is also a 50-foot right-of-way on the western boundary that goes all the way north and connects to an existing right-of-way in the City of Palm Bay that further connects to San Fillipo, so that may be another point of ingress/egress. He stated they have not fully explored that; and it will be dealt with at the site planning stage. Commissioner Colon inquired if it was a different client he was mentioning when he came to her office and said if he came before the County it would be 5,000 units, but before the City of Palm Bay it would be 9,000 units. Mr. Torpy responded if this property was annexed into the City of Palm Bay and got a higher density, it could have more than 9,000 units; there are some densities in the City of Palm Bay that are as many as two units per acre; but they are not seeking that. Commissioner Colon inquired is this the same client or a different client; with Mr. Torpy responding it is the same client. He stated they evaluated every potential possibility for the property over the past eight months; and the conclusion they came to was to apply for what the County’s Comprehensive Plan had and not annex into the City of Palm Bay for higher density. He stated what the County Code says they should be doing in this area is what they opted for; and there is no hidden agenda. Commissioner Colon stated she is confused because she thought Mr. Torpy said there is already an application for the City of Palm Bay to consider for the area on the north side. Mr. Torpy stated he is not sure why Commissioner Colon is confused; she told him and he confirmed with City staff that there is an application for every piece of property running along the southern boundary of the City down to the northern boundary of Deer Run; but that does not connect to his client’s property, which is south of that. Commissioner Colon inquired again is that a different client; with Mr. Torpy responding he is not involved with those applications for rezoning, and they are just a fact of what is going on in the City of Palm Bay. Commissioner Colon stated the reason she is asking is because she wants to make sure that Mr. Torpy is putting all the cards on the table; with Mr. Torpy responding he is. Commissioner Colon stated when Mr. Torpy came to her office, he explained the area that she believes was Willowbrook, Mr. Satori’s area, and so forth, and that potentially it would be 5,000 units, but the City of Palm Bay would give 9,000 units; and she just wanted to make sure it was two different clients because at that point she would also ask what kind of zoning they are looking at as far as two and a half acres per unit to be able to get an understanding. She stated she would rather ask those questions now than try to do a small area plan. Mr. Torpy stated they are asking for one unit per two and one-half acres in AU zoning; and it is nothing more or less. Commissioner Colon stated that is not what she said; and she wants to separate Mr. Torpy’s clients. Mr. Torpy advised he has only one client; the client has a contract for the parcel and the land to the west; he does not have land that is adjacent to the City of Palm Bay to the south; and what he explained to Commissioner Colon was what is going on in the surrounding area because Commissioner Colon said she wanted to know what everybody was doing all around his client’s property. Commissioner Colon stated she does not want to do it piecemeal. Mr. Torpy stated he researched that and brought back to Commissioner Colon what everybody is doing all around there; the people north in Willowbrook are not his clients, but they have filed applications for annexation into the City of Palm Bay that is currently being processed; and that is what is going on there. Mr. Torpy stated Deer Run, which is their neighbor to the north, is an existing subdivision of one unit to two and one-half acres; he does not know what they are doing on everything to the east of their property toward Babcock Street except the Future Land Use designation is one unit to two and one-half acres; but he does know that a lot of the land is for sale. He stated he does not know of any current applications to the Board for any rezonings of those properties; to the west is the boundary of the property they have under contract; and west of that is the St. Johns River. Commissioner Colon stated she told the Board what was said to her regarding making a deal; at that point Mr. Torpy told her that his client was the one with the Willowbrook area; and he pointed at potentially putting a loop that would connect to US 192 towards the interchange; with Mr. Torpy responding absolutely. Commissioner Colon stated that is why she wanted to make sure that she did not put his clients together and affect Mr. Stewart when it is a totally different area that Mr. Torpy was talking to her about; she is not trying to give Mr. Torpy a hard time; but she is trying to make sure that everything is clear and she is not going to be throwing a curve ball in the future and have higher density when right now Mr. Torpy’s client is obviously in good faith trying to stay consistent with the compatibility of the area. Mr. Torpy stated he needs to clarify; he and Commissioner Colon talked about a lot of things; and he also talked with other Commissioners. He stated one of the plans the City of Palm Bay is looking into for access would be another road; if the City ever builds the road that goes from I-95 west, one of the things they were asked by the City was whether they would dedicate land in this area so that Centerline, which is an existing road, could continue west, go through their property, and then curve to the north on their land, go up, and connect with the beltway; and they told the City they would be happy to do that. He stated it benefits them; the more access they have, the more ability there will be to move traffic, and the better off they will be; and that is one of the things they have discussed with the City, but they have nothing pending with the City of Palm Bay that would increase density above the one unit per two and one-half acres. He stated he does not want the Board to think Commissioner Colon is mistaken; with Commissioner Colon advising she is not mistaken. Mr. Torpy stated all of those issues were discussed; they have researched all of the possibilities for the land; and they concluded that the best thing for this area was to stay with the County’s Comprehensive Plan, so that is what they are doing, with no hidden agenda.

Interim Assistant County Manager Ed Washburn stated Mr. Torpy has mentioned several things about what the Comprehensive Plan requires the Board to do; and he would like staff to clarify to be sure that what he is saying is correct, before the Board goes any further. Mr. Enos advised Mr. Torpy has stated that it is his belief that the County should have administratively rezoned the property to AU to make it consistent with the Comprehensive Plan; but that is not true. Mr. Enos stated the objective that was described by Mr. Torpy was intended to require staff to bring to the Board parcels where the current zoning is not consistent with the Comprehensive Plan, meaning the current zoning is denser than the Plan; a parcel with zoning that is not as dense as the maximum permitted by the Plan Land Use Map is not inconsistent with the map; it is simply less than and consistent with the map; so he wanted to clarify that point. Mr. Torpy stated he read to the Board Policy 15.2; he did not say what he thought it meant; Policy 15.2 of the Comprehensive Plan states, “County staff may initiate administrative rezoning for those properties that are found to be inconsistent with the Future Land Use Map at the time of a development permit application”; and he is not trying to interpret the Code, but is just reading it. He stated there may be other policies that the staff has determined when it does that; it does not say staff must, but that staff may; that is why he was careful to read it; and it is one of the kinds of things staff could do to bring a property consistent with the Future Land Use Map, because right now the current zoning is not consistent with the Future Land Use Map. Mr. Enos stated that last thing is not true; it is currently not inconsistent because the zoning is of a density that is less than the Comprehensive Plan; the policy was designed to deal with zonings with densities that exceed the density of the Comprehensive Plan; and that is what inconsistent means in this context. Mr. Torpy stated he will not argue with staff about how it applies that policy; but they know the application is consistent with the Future Land Use Map and the County’s Comprehensive Plan; staff in its report agrees that the request is consistent with the Comprehensive Plan; and when it comes to administrative rezoning, there may be other policies that he is not aware of. He stated he is not here on an administrative rezoning, but on the application for rezoning request.

Commissioner Carlson stated it is consistent with the Comprehensive Plan, but it is an increase in density; and she thinks Mr. Torpy can agree with that because GU is one unit to five acres and AU is one unit to two and one-half acres; with Mr. Torpy responding absolutely, but it is still maintaining level of service and all other requirements for that kind of an analysis. Commissioner Carlson stated when Mr. Torpy talked to her about this, he mentioned the property to the west was a mitigation area for St. Johns River Water Management District; and requested he explain that. Mr. Torpy responded there are actually 5,000 acres out there, and 2,000 of it is a mitigation bank; the previous owners did that; they were not involved in it; but it is a mitigation bank that will never be developed. He stated his client has another 500 acres of property under contract, which is not being considered today; it is on the 3,200 acres, 500 of which is actually wetland; that also will not be developed; some of it is even lake kind of wetland; of the total 5,000 acres that are owned by Mary A LLC, there are only 2,500 that are upland; so from a density perspective, it is physically impaired already. Commissioner Carlson inquired how will the mitigation bank be utilized. Mr. Torpy responded when they get to the 3,200 acres, they will have to deal with that; and it presents a lot of problems such as density issues, Comprehensive Plan issues, and mitigation issues. He stated they are talking about 930 acres of orange grove right now that does not present all those issues; that is why they have chosen to take that on; it is simpler to stay with the Comprehensive Plan and do a project there; and then they will deal with the other part. He stated they have talked with Natural Resources Management Director Ernie Brown concerning use of the Open Space Ordinance that would allow wildlife corridors and the densities they need for development, but would also work with the new Ordinances. He stated they may wind up back in front of the Board asking for this to not be changed so it is with the whole 5,000 acres; but he does not see them going there because the County is going to wind up wanting to study the larger areas for a longer period of time; and the 930 acres is the one they have chosen to move forward with. He stated if they did choose to change that, as Commissioner Colon is concerned about, they would have to come back to the Board, but that is not on the table right now. Commissioner Carlson
inquired in terms of the 5,000 acres, have they looked at DRI’s; with Mr. Torpy responding they had to consider DRI; with that many acres of land, thresholds are triggered; and that has been a consideration. He advised the southern boundary of this land is Indian River County, which is a less densely populated area than Brevard County, so it even triggers a higher DRI threshold, meaning less houses trigger the threshold. He stated there are a lot of issues to deal with.

Commissioner Colon stated one of the things they looked at with the City of Palm Bay was the concerns about the kinds of growth going down there; they looked at the entire area because they did not want it to be piecemeal; and they even asked the City how far was it coming down and where it would stop. She stated some of the things they talked about were connecting some of the EEL’s property with some of the St. Johns River Water Management District’s property; so there are still some things that need to be looked at. She stated she does not have a problem with two and one-half acre lots because it stays consistent with Deer Run; she wants to make sure that the compatibility stays the same; and inquired if there is a conceptual plan so they will have an indication of how this subdivision will look. Mr. Torpy advised there are three sketches, but they will change; they will have to do engineering data first; he is nervous about putting something in front of the Board and then having the engineering data change the whole thing; so the answer to Commissioner Colon’s question is no. Commissioner Colon stated they talked about density, which is a huge concern of the Board; and inquired if there is another application within this area and how many acres is that. Planner Todd Corwin stated there is a Comprehensive Plan amendment for 4,200 acres immediately to the west; and the application is to go from agricultural, which is a density of one unit per five acres to a density of residential at one unit per two and one-half acres.

Chairman Pritchard inquired about agricultural being one unit to five acres; with Mr. Corwin responding the Future Land Use Map designation for agricultural is one unit to five acres; the next residential classification upward in density is Residential 1 at one unit per two and one-half acres; and in contrast to the AU zoning, Agricultural Residential is two and one-half acre lot size. Commissioner Colon inquired if it is west of the property in question; with Mr. Corwin responding that is correct. Mr. Torpy stated that is the property he mentioned in his opening presentation that they already filed on; but that is a Comprehensive Plan amendment so it will take months to move forward on it; it is at one unit to two and one-half acres as well; but since it is a Comprehensive Plan amendment, it is a different animal entirely. Chairman Pritchard stated the Board should deal with one point at a time; it is two and one-half acre lots; and if that is agreeable, that is what the focus should be. He stated when the next ones come up, the Board would expect them to be compatible.

Commissioner Colon stated that is what she was saying about putting everything on the table because the Board does not want to see it piecemeal; she is not going to hurt Mr. Torpy’s client because of all the growth going on in the area; she is not exactly happy that it is going from 150 homes to 300 homes; but it is compatible with the area. She stated she will be discussing other things after this is done.

Commissioner Scarborough stated Commissioners Colon and Pritchard mentioned the density concept; he was having a conversation with Ms. Busacca and one of the first theories they got into with density was on the South Beaches; and Ms. Busacca said when they did the analysis, if everything was built out on the South Beaches, they would have to four-lane A1A, or no one would be able to develop. He stated it became mutually exclusive; they are getting into some analysis on potable water in Titusville; there is good buildable land; but there is a limitation there. He stated Ms. Busacca has advised that every where in the County there are separate limiting factors; if they had not done anything in the South Beaches and had let it develop, it would have developed to a critical level; and then it would have hit certain thresholds and all the other property would have become unbuildable. Commissioner Scarborough stated there is a tendency to believe that smart growth is basically antidevelopment; but it is totally incorrect because only through smart growth can there be proper development; when they allow irresponsible development, such as if they had proceeded with the South Beaches, they would have hit thresholds that would have precluded anyone else from developing unless they built a four-lane road; or they could have developed in North Titusville, misused the potable water, and ended up developing the wrong things in the wrong places. He stated he does not know what the limiting factors are in the area under discussion; but he does recall Deer Run; and it got to the concept of whether they were going to create Holland in South Brevard. He stated if they design this to consider pumping and putting dikes around it, they can actually have it below the level of the St. Johns River and can have maximum density; but he hopes the Board explores that when it gets into the massive plan. He stated he was asked whether he is in favor of planning; and he said he definitely is; and he supports Commissioner Colon if she wants to have more planning.

Chairman Pritchard stated two and a half acres is a reasonable request for homesites; he looks at GU as a holding pattern; AU at one unit per two and one-half acres is a large piece of property; it is compatible with Deer Run; and he has no problem supporting it.

Commissioner Scarborough stated Deer Run was a mistake; and things were done there such as the pumping that the Board does not want to continue. He stated that is the problem in looking at zoning; there are limiting factors; and for instance, one aspirin may not harm him but if he took four bottles, he would not be in good shape. Chairman Pritchard stated with Deer Run it was the flooding issue. Commissioner Scarborough stated flooding may be down there with the whole area; there needs to be an analysis in each area; and Mr. Torpy made another point that he disagrees with profoundly. He stated Commissioner Carlson had a small area plan done for the area along the lagoon; this is a big area and Mr. Torpy did not think there should be a small area plan; but the larger the area, the more it calls for the larger planning because it is possible to repeat a mistake more dramatically in a larger area. He stated if they had fouled up Commissioner Carlson’s little area, they could close their eyes when they drive by there; but if this area floods and it is necessary to pump the whole area, it is going to be bad. Chairman
Pritchard stated he does not see where that is a zoning issue. Commissioner Scarborough stated it may not be; Commissioner Pritchard had said they need to limit density; and his point is they need to limit density in a manner that allows the maximization of density. He stated it is like putting things in a refrigerator where they best fit to get the most in; if they just talk about
mass density, they do not look at the component parts such as the roads, A1A, the potable water in North Brevard, or the flooding in the area in question; he does not know what the limiting factors are; and the small area plan or the Comprehensive Plan review leads them to smart decisions, which guides the whole process. Chairman Pritchard stated it is a two and a half-acre subdivision, not the South Beaches. Commissioner Scarborough stated there may be areas where two and a half acre lots are inappropriate for other reasons because of flooding or something like that. Chairman Pritchard stated the flooding issue is supposed to be addressed in the land development side, not in the zoning side; and there can be flooding on five acres or ten acres. Commissioner Scarborough stated he tried to make a point. Chairman Pritchard stated he understands what Commissioner Scarborough is saying; but what he is saying is that the issue of flooding is to be addressed at the land development stage; and the only thing they are looking at now is whether a two and a half-acre homesite is compatible and reasonable. Commissioner Scarborough stated Deer Run has two and a half-acre sites; but Deer Run is a problem because of flooding. Chairman Pritchard inquired is it a problem because it is two and one-half acres or is it a problem because it was not developed properly. Commissioner Scarborough stated there are some areas that are problematic at any density for various reasons.

Commissioner Carlson stated it is not only the drainage issue; she agrees with Commissioner Scarborough on that; but it is the issue of Babcock Street. She stated Palm Bay is supposed to be redoing the joint planning agreement, which has been sitting on someone’s desk for three years; they need to sort out some of the infrastructure issues within this area; and it is a huge impact on infrastructure that is not existing right now other than Centerline Road and a two-lane Babcock Street. She stated they do not know what Palm Bay is doing in terms of any potential future annexations; from what Mr. Torpy has said, they are only looking at a certain area; they are not looking at it all the way down; and she has concerns about that. She stated she does not have a problem with two and a half-acre lots; but she has a concern that the Board is not planning the whole area, with a small area plan. She stated it is all vacant property so it should not be as difficult to deal with as the small area plan she was dealing with.

Chairman Pritchard stated he understands what Commissioner Carlson is saying; but the reason landowners are going to the cities is because the cities will give them four units per acre or allow something on a dirt road. Commissioner Carlson stated she does not mind it going to the City as long as there is a joint planning agreement that says the County is not going to pay for the infrastructure to support it. Chairman Pritchard stated he minds if they are going to go to even one unit per acre where there is an opportunity to do something at one unit for two and one-half acres. Commissioner Carlson stated she agrees with that, but there is a huge area out there, which is GU at one unit to five acres. Chairman Pritchard stated there is also a city down there with destiny in its vision; and within the next five years it is going to run all the way from Vero Beach to Titusville if Palm Bay gets its way.

Commissioner Voltz stated that is the major problem that she has down in this area; it is not far from Palm Bay; and Palm Bay does not go looking for people to annex, but people are looking to Palm Bay for annexation because they can get higher density. She stated it would be beneficial for the County to limit it to two and a half-acre lots down in that area for a variety of reasons; and she is concerned about Palm Bay more than anything because it is not all that far down the road.

Chairman Pritchard stated he has a concern if the County does not move on things like this, it will be dangling the carrot; someone is going to come along and snatch the carrot; and the next thing will be this area and other areas are going to be part of municipalities that will give developers whatever it is they want. He stated the Board had that discussion this afternoon with the City of Cocoa, which is looking for a much higher density than the Board thinks is reasonable. Commissioner Colon stated some of them may have seen the light. Chairman Pritchard stated that is true; but Commissioner Colon understands his concern. He stated a two and one-half acre lot is a big piece of property for a residential house; he would not want to mow it; and he has concerns.

Commissioner Voltz stated the other issue is when there are communities on two and one-half acre lots, they are really not communities where everybody knows everybody else; but in Deer Run the people pulled together on the flooding issue. She stated for 24 years she lived in Palm Bay on a quarter-acre lot; she never had a community because she either lived on a major road and did not have anyone across the street or could not cross the street to shake her neighbor’s hand; now she lives on a quarter-acre lot but it is a community and everybody knows everybody; and she enjoys that kind of living. Chairman Pritchard inquired if Commissioner Voltz is pushing for higher density; with Commissioner Voltz responding no.

Commissioner Colon stated where she lives in Palm Bay there are neighborhood block parties and everyone knows each other; it is a very friendly neighborhood; she does not have a problem with Mr. Stewart and is not going to hold him hostage; and she thinks she is very fair. She stated she does not want to force Mr. Stewart, but she would like to see a conceptual plan because it would allow her to be able to show folks in the area what they can expect; she does not have the power to force Mr. Stewart to do this; but in the future she would like to be able to see something. She stated she will be making a motion after her initial motion for a small area plan for the area; it should not take too long; she has spoken to Mr. Rusnak and Mr. Corwin to get an idea of some of the things she will be looking at; and it has nothing to do with Mr. Stewart. She stated she does not have a problem supporting this; she just wants to make sure everyone is truthful; she does not want to be hearing things from staff of things coming down the pipeline because that is very upsetting; and she does not have a problem with two and one-half acre lots, but there is more to talk about.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item V.B.13 as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

Commissioner Colon stated even before the elections she spoke about making sure there was a small area plan; they started that with the City of Palm Bay; she thinks they are going right down the line; and they need to have some discussions about that whole area. She stated now that Mr. Stewart is here, she wants to speak to staff about trying to connect the County’s EEL’s land with St. Johns River Water Management District’s land; Mr. Stewart does not have to do this; but since he is here, he can hear a little bit of that discussion and the community can have a sense of what is truly needed. She stated they do not want to see the out-of-control growth that is happening.

Ron Stewart stated he does not want to see it either; he did not come here to do anything like that; and as he told the Commissioners when he met with them, he came here to do what is already in place. He stated they did not come to change things drastically; they worked first with staff to get their thoughts and recommendations, see if there were any major issues, and address those; and he will gladly work with the Board on any of these things. He stated he appreciates what the Board did tonight; and he admires the Board’s stamina.

Commissioner Colon stated she would like to get a small area plan back in approximately two months. Mr. Corwin stated the length of time it takes to do a small area study is directly proportional to the complexities involved; and inquired what area is Commissioner Colon speaking about doing the small area study for. Commissioner Voltz stated part of this runs into her District; and she was looking at the same thing for the same reasons. She recommended they do a combination and not stop on District lines. Commissioner Colon stated that would be great. Commissioner Scarborough stated it would be nice if staff could come back with a report of what they find to be key areas to study; he heard someone mention roads, the topography of the land, the floodplain, the soil samples, etc.; and these are the type of things that he would like to know about such as the Deer Run experience. He stated it was difficult to find a way to make Deer Run work; as they get similar problems, they get more difficult as the density increases; and there may be methodologies that the Board may want to use differently in different areas because of different problems. He stated he does not know what would come out of the study but those are the kinds of things he would like to look at. Commissioner Voltz stated on the item the Board tabled tonight, the majority of the land surrounding the parcel is RR-1; that is where it is moving to; the densities get greater as one moves toward U.S. 1; and that is what the Board needs to look at. Commissioner Scarborough stated the question is whether they move from a denser cluster to less dense; inquired where should it logically be; and advised as they get people, they need to consider commercial. He inquired if they are just going to sit and respond in a quasi-judicial mode; stated the Board is compelled under the Comprehensive Plan to do comprehensive planning; and the bottom line is smart growth is exactly what Commissioner Colon is asking for.

Commissioner Carlson inquired if they are talking about going all the way from the west to U.S. 1; with Commissioner Voltz responding she was just saying toward the I-95 area; she would like them to look at that and see how far east to go; and at some point it does not make sense because Barefoot Bay is seven units to the acre. She stated they do not need to go to that area; and it is the large parcels that are available down there that need study. Commissioner Carlson inquired if the area plan that Commissioners Voltz and Colon want is Babcock Street as the eastern boundary; with Commissioner Voltz responding no, because east of Babcock Street is in her District while west of Babcock is Commissioner Colon’s area. Commissioner Carlson
inquired how far east are they talking about; with Commissioner Voltz responding she does not know, and they need to let staff look at it. Commissioner Carlson suggested looking at the northern boundary as the Palm Bay City line because they do not know at this time if annexations in the mill are going to happen. Commissioner Voltz stated Palm Bay has a sign two miles south of Grant Road saying, “Welcome to Palm Bay.” Commissioner Carlson stated that is like what the City of Melbourne has in terms of the County property. Commissioner Scarborough stated that is scary. Mr. Corwin stated if the Board desires, staff can come back on March 22 with an outline giving more of a concept of what can be done. Commissioner Voltz stated that would be wonderful. Mr. Corwin advised there was a Comprehensive Plan amendment transmitted for the area east of Babcock Street that was going to reduce densities; and that will be coming back to the Board in late April 2005. Commissioner Carlson stated that will show up on March 22.

Chairman Pritchard inquired if there was a motion on the small area plan or did the Board want to wait until March 22, 2005; with the Board reaching consensus to wait.

PUBLIC HEARING, RE: RECOMMENDATIONS OF THE NORTH MERRITT ISLAND
DEPENDENT SPECIAL DISTRICT BOARD OF FEBRUARY 10, 2005

Chairman Pritchard called for the public hearing to consider the recommendations of the North Merritt Island Dependent Special District Board at its meeting of February 10, 2005, as follows:

Item V.D.1. (NMI50201) Eugene Carducci and Mackler Capital, LLC’s request for change from AU to RR-1 on 2.63 acres located on the south side of West Crisafulli Road, east of North Tropical Trail, which was recommended for denial by the North Merritt Island Dependent Special District Board.

Chad Halsey stated he is a relative of the current owner of 325 West Crisafulli Road; and he is speaking on behalf of his brother-in-law Mike Lerner and father-in-law Eugene Carducci. He stated they have recently put in an application to rezone the property from agricultural use to RR-1. He stated a few weeks ago he had the pleasure of attending the North Merritt Island Committee meeting on behalf of his relatives; and in this meeting he had the opportunity to discuss their desire to rezone and also hear the concerns of the citizens in that area. He stated he did a lot more listening than talking at the meeting; and tonight he would like to address their concerns and shed light on why this parcel should be approved for rezoning. He stated he went to the Property Appraiser’s office and got the latest as-built of that area; and submitted copies to the Board. He stated he would like to address the concerns of the residents on West Crisafulli Road; one of the biggest concerns was the drainage issue; and some residents feel that by rezoning this property to RR-1, it will cause more adverse drainage conditions on the road that sometimes in heavy storms does flood. He stated the property is unique; a lot of vacant properties on Merritt Island are heavily wooded and low-lying, and collect a lot of water from the neighboring parcels; but the property in question is the complete opposite, completely cleared, high and dry, and with no adverse drainage to the road. Mr. Halsey stated the current elevation is significantly higher than the road; so it is his belief that this property will not cause any adverse conditions or drainage to the current road. He stated another issue was traffic; the residents feel that if this rezoning occurs, it could cause more traffic on the road; this is a very short road that connects S.R. 3 to North Tropical Trail; a lot of the traffic on the road is not from the residents who live there; and people use it as a thoroughfare. He stated people might be overlooking the fact that agricultural land can generate an extreme amount of traffic; using the property as a nursery could result in several trucks and trailers loading cargo back and forth all day; there would be customers; and there is a good argument that an agricultural use may cause more traffic than residential. He stated the environmental issue was not brought up in the meeting; however, he would like to address it. He stated the land is completely cleared, high and dry, and has no environmental issues; one gentleman who spoke at the meeting touched on quality of life; he said if this property was rezoned from agricultural to RR-1, there was the possibility that two lots could be made out of this and two houses built; he would have to look out of his window and see two houses instead of one; and that could decrease his quality of life. He stated there are no guarantees on what someone’s neighbor is going to do on his property unless it is in a homeowners association. He stated even in its current state as agricultural, there is nothing to say that there could not be several large structures on the property; there could be a house in front with a large barn in back and several greenhouses; so there are no guarantees on what one’s neighbor is going to build. He stated they may find that going to residential might be better than what they would have with agricultural. He stated in terms of burden of proof, people wanted to know why they would need to do this; there are two owners on the deed for this property; and they both want their own parcel. He stated the County’s future use of this property is RR-1; there is already RR-1 in the area; and that is the trend that is already established. He stated his last point concerns precedent; and pointed out on a map the subject parcel and other parcels in the area that are RR-1. He stated directly across the street from the parcel is RR-1 zoned property; it has been approved by the County to be flag lots; and they are taking advantage of that. He stated his relatives are not trying to do anything that is not already being done; they simply want to do what is already established and follow the trend; and there is justification due to the precedent of what the neighbors have done across the street.

Chairman Pritchard stated there are several cards; he will make comments; and then the Board will see where it needs to do. He stated this area is part of the North Tropical Trail area that he spoke of for a small area plan; it runs roughly from Porcher Road up to the old Sams house, then Tropical Trail bends out to Courtenay Parkway, travels down Courtenay and goes west to the river; and it is almost centered in the area for the small area plan. He stated it would not be his intent to have this rezoned at this time, but to keep it as it is and see what the result of the small area plan is when it comes back. He stated he has a feeling it will come back saying AU with two-plus acre zoning is what is going to be appropriate for that area; there are some significant properties on the riverfront, one that is 100 acres or more; and they are very concerned about it; but he has spoken to a representative of the owners, and he is interested in AU at two and one-half acres with homes selling for $700,000 and $800,000.

Shaye Williams stated he is familiar with the parcel; it is immediately adjacent to his property; it is the next property to the east; and as Mr. Halsey mentioned, he had the opportunity to present and defend at the meeting of the District Board and the residents also had the opportunity to present. He stated he looks at the change being requested in terms of where is the burden of proof; and requested the applicant prove to him that it is necessary to change this zoning classification from one on two and one-half acres to one home per acre. He stated it does not fit in; what happened across the street on Crisafulli Road occurred in the past; he was not aware of that change when it went through; and he was surprised when he and his wife went down to the office and found out the property was rezoned; but there is nothing they can do about that because zoning goes with the property. He stated that is the way it stands; it is something he would like to preclude from happening to the property adjacent to his; and the surrounding property owners are also opposed to it. He stated rural character is large lots; it may or may not have an impact to change this to one acre with a home and outbuilding; and he wants a neighbor there on two and one-half acres with the freedom of an agricultural classification. He stated the history at one point was citrus; it is not now; with two and one-half acres one cannot even get a citrus exemption any more; it has an appeal to capture the history and the character of the area; and it a welcoming aspect of the community. He stated they are on large parcels, but he knows most of his neighbors on North Tropical Trail, East Crisafulli Road, and West Crisafulli Road; and it is a neighborhood that is a community. He stated he was looking at the classification appropriate for the parcel; and he does not see a compelling reason to go for the rezoning or a benefit to the surrounding homes to increase the density for this particular parcel. He stated when someone says there are two people who own the property, he looks at it as a limited liability corporation; he does not care if there are ten people in that corporation; but he does not expect a corporation to move in beside him and build a home. He stated when he looks at hundreds of acres on North Merritt Island owned by corporations, he does not think he is going to see one home; he thinks he is going to see a building complex of some sort; and that is how he views this. He stated he does not see two individual people there wanting to build a home and live there; he sees someone who wants to build on a parcel and sell it; and that does not fit with the community either. He stated they would welcome someone who wanted to build a home and live there and embrace it.

Celia Williams stated when this rezoning request came about, they were very disappointed and in opposition to it; and they talked to a lot of their neighbors who were also in opposition to it. She stated they know a lot of their neighbors; she considers herself an expert witness for North Merritt Island because she walks the roads a lot; she has walked every single road in North Merritt Island because she likes to walk and observe; and she is out there in all different seasons. She stated she talks to the people; she reads things so she considers herself an expert witness on what happens, especially in her neighborhood; and she has a petition signed by all the adjacent residents, many who live within two or three lots of the lot in question. She stated they are all in opposition; and submitted the petition to the Board with 51 signatures. She stated a lot of the residents were very opposed for the same reason that Shaye Williams said earlier; it is predominantly an agricultural area; a lot of them have two and one-half acre lots; and they do not think that is large enough. She stated a lot of people come to North Merritt Island to shop at the roadside stands that provide Indian River citrus; and it makes the area unique. She stated at some of the zoning meetings, flooding was a big issue; that road has a documented case of flooding; and even though the applicant indicated the lot does not create flooding, there is flooding in that area, which has been documented on the North Tropical Trail Stormwater Master Plan that was funded by the County in 1999. Ms. Williams stated none of the recommendations to fix the flooding on the road have been implemented other than the erection of a sign that says, “road subject to flooding”; and often people do not travel on that road because it floods and stays flooded for a month at a clip. She stated that makes it difficult for emergency vehicles to get in and out; and she has seen cars stalled out there because they came through the flooded area. She stated there is existing flooding; they are all on septic tanks; and extra housing is not something she wants to see in her neighborhood because it does not fit.

Mary Hillberg, representing the North Merritt Island Homeowners Association, stated the Association has voted unanimously to request the Board deny this application.

Linda Noble, Dana Noble, David Henry, Chris Cook declined to speak but indicated they oppose the rezoning.

Motion by Commissioner Voltz, seconded by Commissioner Pritchard, to deny Item V.D.1 as recommended by the North Merritt Island Dependent Special District Board. Motion carried and ordered unanimously.

Item V.D.2. (NMI50202) Phillip J. and Sofia I. Sperli, Co-Trustees’ request for change from AU to SR on 13.47 acres located on the east side of North Tropical Trail, south of Oak Lake Place, which was amended by the applicant to request RR-1, and was recommended for denial by the North Merritt Island Dependent Special District Board.

Chairman Pritchard stated there are a lot of cards submitted for this item; but he will tell them where he stands; and they can decide if they wish to speak. He stated his recommendation is to deny the application to go to SR; it is currently AU; he is familiar with the area; and he does not walk the neighborhoods, but rides them on his Harley. He stated he drove back into the neighborhood; he can see where the problems are; and he is also aware of the neighbors who back up to the access road and the problems that would occur.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to deny Item V.D.2 as recommended by the North Merritt Island Dependent Special District Board. Motion carried and ordered unanimously.

Phillip Sperli stated if God sent 40 days and nights of rain, this property might flood; but he has been there 15 years; there have been four hurricanes and everything else; and only one time was there flooding in one portion of the property.

Sofia Sperli stated their land is used to back up a trailer and do odd things; there is a trailer that parks there; and it is using their driveway. She stated it is a dirt road coming from Tropical Trail; they have to take their stuff over there; her neighbor named Joe says they cannot leave it because there is going to be another hurricane; and inquired where can she put her stuff. She stated the same neighbor who has the trailer has a dirt bike; and he rides it through their property. Chairman Pritchard advised that is trespassing. Ms. Sperli stated they are trespassing, moving the trailer on her property, and they block her driveway. Chairman Pritchard stated if Ms. Sperli has a problem with someone trespassing on her property, she should call his office and his staff will look into it for her.

Item V.D.3. (NMI50203) Michael J. and Sonia R. Tavano’s request for Small Scale Plan Amendment to change the Future Land Use Map designation from Neighborhood Commercial to Community Commercial, and change zoning from AU to BU-2 on 1.55 acres located on the west side of North Courtenay Parkway, north of Gator Drive, which was amended to request BU-1 on the front and BU-2 on the rear of the property, and was recommended for approval of Small Scale Plan Amendment and BU-2 by the North Merritt Island Dependent Special District Board.

Rochelle Lawandales, Lawandales Planning Affiliates, stated this is a request for a one and one-half acre parcel located on North Courtenay Parkway; they have requested BU-1 for the first 150 feet and BU-2 in the rear; and this has come with recommendations for approval from the Merritt Island Board and the Planning and Zoning Board.

David Henry stated he is not totally opposed to the rezoning; however, at the Advisory Board meeting in Merritt Island when this issue came up, they talked about a two-story building at 35 feet. He stated the North Merritt Island Dependent Special District Board agreed that a two-story building would be okay; but 35 feet is a three-story building; and he just wanted to make that point. He noted Ms. Lawandales did not make any reference to the building height.

Chairman Pritchard stated this is zoning; it is not the permitting side of it for construction; so all they are getting today, if the Board approves, is BU-1 zoning up front and BU-2 in the rear, and the building will come at a later date.

Motion by Commissioner Voltz, seconded by Commissioner Colon, to approve BU-1 on the front 150 feet and BU-2 on the rear of the property; and adopt Ordinance amending Article III, Chapter 62, of the Code of Ordinances of Brevard County, entitled “The 1988 Comprehensive Plan”, setting forth the second Small Scale Plan Amendment of 2005, 05S.2, to the Future Land Use Map of the Comprehensive Plan; amending Section 62-501e entitled Contents of the Plan; specifically amending Section 62-501, Part XVI (E), entitled the Future Land Use Map Appendix; and provisions which require amendment to maintain internal consistency with these amendments; providing legal status; providing a severability clause; and providing an effective date. Motion carried and ordered unanimously.

Item V.D.4. (NMI50204) William R. Wiggins and David A. Wiggins’ request for change from AU to EU-2 on 18.74 acres located on the east side of North Tropical Trail, north of Sunset Lakes Drive, which was recommended for denial by the North Merritt Island Dependent Special District Board.

Attorney Philip Nohrr, representing the applicants, stated he has given each of the Commissioners a briefing book; a lot of it consists of exhibits he will be showing and some reports; and he is requesting they be put into the record of the proceedings. He stated they are talking about a parcel that is approximately 18 acres; it is located off North Tropical Trail, north of the Barge Canal and south of Hall Road; and pointed it out on the map. He stated to the south for a distance of 2,600 feet is the Sunset Lakes Subdivision, which is zoned PUD, but is developed at a density greater than two to three units per acre; and the widest of their lots are 90 feet, with a number of lots less than that. He stated to the north is the Citrus Isle Development that consists of approximately 20 acres; it has 51 lots and is developed as EU-2; and north of that is the regional park that is under construction. He stated he will come back to the exhibit and go over the yellow lines representing drainage in the area; and the next exhibit deals with width of lots. He stated after going to the North Merritt Island Special District Board meeting and the meeting with many of the residents, the applicants have decided to amend the application; what was in front of the Board was a request for a 50-lot subdivision developed at EU-2; but they have gone back to the drawing board; and what the Board sees tonight and what they are willing to accept is a 37-lot subdivision developed as EU. He stated EU is two steps above EU-2; and it has a minimum square footage of 15,000 square feet versus EU-2, which has a 9,000 square-foot lot. He stated immediately to the south is Sunset Lakes, the lot widths are 90 feet, then it goes to 60 feet, 50 feet, and then back to 90 feet; there are some 80-foot wide lots; and Citrus Isle has 90-foot lots. He stated sandwiched in between is a relatively narrow piece of property of 300 feet by 330 feet; and it is sandwiched between 2,600 feet of development and 330 feet of development of EU-2 to the north. He stated the applicants have a narrow piece of property; it does not abut North Courtenay; all ingress/egress will be out of North Tropical Trail; and this will be a gated community. He stated there is BU-1 on the east side as well. He stated the next exhibit shows the drainage; he expects they will hear something about drainage tonight; and he will be bringing up an expert in a moment. He stated all of the Sunset Lakes drainage is handled internally; when it leaves the portion of Sunset Lakes east of North Tropical Trail, it goes west and eventually out to the Indian River Lagoon; it does not go north or south; and that was the way it was designed. He stated they acknowledge from what they have investigated that there are some problems with the drainage; Mr. Teimouri, who is a licensed civil engineer, has a report for the Board on their property; and he will be testifying to the fact that any drainage problems are not part of the design, but are in the construction. He stated it is his understanding they are working on it. He displayed a map showing the drainage from the applicants’ property; stated the current drainage goes east until it gets into the swale system and eventually goes out to Hall Road and into the Indian River Lagoon; and when they develop, the drainage will go from the rear of the lots on both sides into the middle and will go the same way as before. He stated the after-development discharge will be exactly the same and no greater than it is now. He stated all of the property to the south of Sunset Lakes and its drainage is indicated on the map by yellow lines; it traverses the east side of Sunset Lakes, goes all the way up to the north portion of Sunset Lakes, comes across to where it hits the applicants’ property, and then goes up to Hall Road and over; and that is not going to change. Mr. Nohrr stated they have a drainage report in their package that the Board has before it; and at this time he will ask Mr. Teimouri if he could come forward.

Mr. Teimouri, in response to Mr. Nohrr’s questions, advised his firm is Teimouri and Associates in Melbourne; he is a licensed civil engineer in the State of Florida; he submitted a written report on the drainage on the Wiggins parcel; the report was prepared with prudent standard engineering principles, and he reviewed the drainage situation for Sunset Lakes. Mr. Teimouri stated he reviewed the Sunset Lakes files in the St. Johns River Water Management District office; it is his belief that there are no design issues related to this drainage, but there are some construction related issues and compliance issues; and as far as he is concerned, there are no flooding issues or drainage problems with the design.

Mr. Nohrr stated he would like to show the Board how they propose the subdivision to be; it will be a minimum of 2,000 square-foot houses; it will be a gated community; and urged the Board to look at the size of the lots as they line up with all of the neighbors to the north in Citrus Isle. He stated the proposed lots are one and one-half times as big as the Citrus Isle lots from the point of view of width; their lots are all 15,000 square feet; Citrus Isle is a minimum of 9,000 square feet but may be closer to 10,000 square feet; but their proposed lots are bigger than those of Citrus Isle. He stated there is the same situation with the neighbors to the south; the map shows that a proposed lot encompasses all of one of their lots and a portion of the lot next to them; so when the Board gets into its deliberations on the issue of compatibility, the maps speak volumes. He inquired how they can be anything but compatible with their neighbors lots when they are coming in with a request that is not equal but is larger or less dense than what the neighbors lots are. He stated they are going to come in at 1.97 units per acre; the development to the north is at 2.6 units per acre; Sunset Lakes starts at 2.8 units per acre and goes to 4.7, 3.2, 4.1, and 2.7; so they absolutely line up from a compatibility point of view. He stated the Board has a report from their traffic engineer, Mr. Lassiter, who has been before the Board many times, and who has concluded there is concurrency. He stated there is no traffic concurrency issue on the road in that they will meet the concurrency guidelines. He stated there is no negative impact on their neighbors; looking at the Comprehensive Plan it is R-4; and they are coming in at less than two units per acre, so by objective criteria, they believe that there is substantial competent evidence in the record to support the request. He stated looking at the 2,600 feet of EU-2 zoning to the south and the 330 feet of EU-2 zoning directly to the north, if the Board holds them to a higher standard without any objective criteria for doing so, it would effectively discriminate against Mr. Wiggins’ property. He advised Mr. Wiggins is in the audience tonight; his family has owned the property for 40 years; he watched all the development; and it is a non-producing orange grove with no environmental issues. He stated Commissioner Pritchard’s office faxed him something advising that the Turners have some issues; he has spoken to his clients and the developer; and it is their intention to try to work with them to get some extra land because of how they developed; they think they are going to work it out; they have not done the engineering yet; but at first blush, it looks like it could be done. He stated he can give his word that they will make a good faith honest attempt to reach out to them. Mr. Nohrr stated the hour is late, but the civil engineer and developer are present and would be pleased to answer any questions the Board may have. He stated they have put documents in the record; the logic of what they are requesting speaks for itself; and requested the Board grant the rezoning.

Commissioner Scarborough stated he noticed how the lots line up for the south, but furthermore to the south is a PUD, which adds a different dynamic to it. He stated there are open areas in there; the lots are smaller; and inquired what is the gross density in the PUD; with Mr. Nohrr responding it is over three units per acres, significantly larger than what they are requesting. Mr. Enos agreed it is approximately three units per acre. Commissioner Scarborough stated the Board is encouraging clustering so sometimes it looks at it one way and the next time it looks at it another; and it needs the data both ways in the future.

Mr. Nohrr stated the only way they can get that low is including property on the west side, but he will provide that data in his rebuttal.

Celia Williams, representing the North Merritt Island Homeowners Association, stated when this zoning issue came up for the second time within a period of a year, there were several residents who contacted their organization and met with the members; and they were all in opposition to this zoning change based on their living in the neighborhood and knowing what the flooding and traffic problems are, and that some of their children are in portables at the high school and in other areas in Merritt Island. She requested the Board oppose this request from the Wiggins based on a lot of the input from the residents; advised some of the residents could not be present, but indicated to her that they were going to write letters to Commissioner Pritchard. She stated she does not know if they had a chance to do that; some had commitments and could not come this evening; and it is rough on residents when they have to come back year after year to address their concerns. She stated she knows it is harder on the Board when it has to repeat an issue; this was addressed in December 2003; at that time it was denied based on water problems in the area that have not been resolved; and she does not know if in the last year those water problems have been resolved because the residents who approached them did not indicate that any of the water problems had been solved.

William Dimmer stated he lives in Citrus Isle Subdivision, which borders the property in question; and he is also vice president of the Homeowners Association there. He stated Commissioner Pritchard has a couple of letters from one of their board members as well as the president who speak to drainage issues and the fact that the drainage from the proposed development goes right into their retention ponds. He stated both of those letters should be read into the record. He stated this is the third time this has come up, the second time in the last 14 months, and the second time there has been a change at the meeting; and his facts and figures are based on the original proposal. He stated the burden of proof is on the applicant; and inquired where is the greater good other than maximizing profit. He stated there are drainage issues, transportation issues, school issues, infrastructure issues, and impacts of 114-acre park that people may or may not be able to speak to. He submitted a petition to the Board; stated there are 51 homeowners in Citrus Isle; 45 homeowners signed the petition; and no one refused to sign, but the other six were out of town. Mr. Dimmer stated there are two developments that border the Wiggins property, Sunset Lakes and Citrus Isle; and it seems like the strongest case Mr. Nohrr makes for the rezoning of this property is the fact that north and south are similar so there is no reason why the Board should deny the zoning change; but he would suggest the Board compare it with the PUD across the road, which is two-acre lots and is certainly consistent. He stated Commissioner Scarborough talked about the need for open space and gradual buffers between large clusters of neighborhoods; and that is exactly what is there. He stated his story seems to say more of the same is a good thing in this clustered area; they learned at the North Merritt Island Advisory Board meeting that there is a Comprehensive Plan; and he picked up tonight on the fact that the current zoning is not inconsistent with the Plan because it is less, not more zoning. He stated the Plan is in its sixth year of a seven year renewal; therefore, he submits in the last six years a lot of changes have happened in the area, and it should be re-looked at. He stated he does not know if a small area plan was included in the earlier proposal; he has seen two others dismissed out of hand; but this item seems to deserve more consideration. He stated their section in North Merritt Island between Grant Road and Hall Road, and S.R. 3 and Tropical Trail is being treated differently than the rest of the island; the fact remains that because there is the large Sunset Lakes development with over 600 homes, it is a good place to cluster a whole bunch more homes and have 1,000 more homes, 2,000 more cars, 1,800 children, and 1,000 septic tanks all in one place; but he submits that is not a good idea. He stated there is a park bordering on the other side of his neighborhood; some would think that is a good thing; but they are putting a nine-foot berm in between; and not everyone thinks the park is a good idea. He stated a park like that can bring a lot more traffic, people, and noise than homes would; in the past month, they have seen rezoning denied from people who wanted to have two and one-half acres per home; the item in front of the Board at one time was ten times the density it is currently zoned for; and that is rather significant. He stated they should have learned something from the four hurricanes they had this year; clustering all these homes together is not a good idea; and he does not know if Merritt Island is a barrier island, but they were asked to leave along with everybody else. He stated the people have shirts that say, “smart quality growth”; and that is what they are expecting from their elected representatives, not to allow people to maximize the last dollar of profit.

Kelly Macias stated she is a resident of Citrus Isle and is also a board member; and she is here to speak on behalf of the Association and the 45 neighbors who signed the petition that Mr. Dimmer submitted. She stated she is here to discuss how this rezoning will impact the roads as well as the schools and why it should be denied at this time. She stated they are not against the right to develop this land; but this is neither the right zoning, nor the right time. She stated the access to the planned development is on North Tropical Trail as is the access to Sunset Lakes, Island Estates, and Citrus Isle Subdivisions; and North Tropical Trail is a narrow twisting two-lane road that lacks sidewalks in most places and has no shoulders, which endangers pedestrians, bicyclists, and joggers. She stated it is a well-worn road that is in bad shape; there is inadequate drainage in many areas, which allows the road to flood during heavy rains; and the road is not ready to handle the extra traffic that will be generated from the park, let alone a new subdivision. She stated an informal survey of her Citrus Isle community of 51 homes shows there are 106 automobiles or trucks, 10 motorcycles or scooters, and innumerable bicycles; and the addition of a new development could only double these numbers sharing the same inadequate roadways, making an already dangerous situation even more dangerous. Ms. Macias stated traffic generated from the park will further exasperate the problem; the single entrance to the park can only be reached via the overcrowded S.R. 3 or by going around the back road, which is North Tropical Trail; and not only will the park usage generate steady traffic flow, but at many times there will be a higher volume of traffic due to the different sports events and other park activities. She stated the impact of these roads also raises concerns regarding emergency vehicles; and the extremely high volume of traffic can only result in the loss of precious minutes getting help to those who need it. She stated between the three current subdivisions along this quarter-mile stretch of road and the addition of the park, there are too many vehicles for an inadequate roadway in this localized area; and the building of a new subdivision at this time is not the right solution to the existing problems already at hand. She stated she also needs to address how this growth affects the schools; there are no public school on North Merritt Island; in Citrus Isle, they have 51 houses with approximately 50 children of school age or younger; and one can make the assumption that another development similar to Citrus Isle will add a minimum of another 50 children. She stated there are four communities with development already in progress that will severely impact the schools, Tropical Cove, Island Oaks, Palmetto, and Chase Hammock Lakes; and those communities will add over 250 new homes with children who will add to an already over-saturated school system. She stated Merritt Island High School has 1,750 students and needs 16 portables to help with the overcrowding; Jefferson Middle School has 692 students with six portables; and Lewis Carroll Elementary has 912 students with five portables. She stated to add another development with 50 homes will further compound the overcrowding problems at the schools; and before the Board should allow any new development, there should be a plan in action for the building of new schools to solve the existing overcrowding and absorb the influx of new students that future development will bring to North Merritt Island. She stated due to the inadequate roadways and the overcrowded schools, along with other factors the Board heard about and will hear about, she is asking it to deny the request for rezoning.

Chairman Pritchard inquired if Ms. Macias contacted the School Board and asked when it is going to build an elementary school on North Merritt island; with Ms. Macias responding no, but from meetings she has been to and talking to school personnel, she has heard there is no talk of a school on North Merritt Island. She advised she is a school teacher getting ready to come into the school system, and volunteers a lot. Chairman Pritchard stated the School Board has property at Tropical Trail and Courtenay Parkway; and it is not building a school. Ms. Macias advised there is no money for it; with Chairman Pritchard responding there is. Ms. Macias inquired where is it; with Chairman Pritchard responding Ms. Macias should ask the School Board as it is its job.

David Henry stated he lives a few miles from the applicants’ property; one of the reasons he is speaking tonight against the rezoning is because of the growth in North Merritt Island; and he and his wife are victims of the new construction. He stated they have been flooded out; they are not getting any help from the County; they were guaranteed they would not be flooded
when Chase Hammock Lakes went in, but that is not the case. Mr. Henry stated he appreciates the County looking at another Comprehensive Plan right now. He stated the County needs to curtail some of the new development until the infrastructure is taken care of; there are crowded streets; he was speaking with some engineers at the Space Center who advised since Commerce Way was built there has been an increase in traffic flow going north and south, much more than anticipated; and they are already looking into what they may have to do to widen the road to compensate for that. He stated this is traffic that is the result of the road being opened to Titusville and also as a result of development that continues on North Merritt Island; but there are flooding issues everywhere. He stated Commissioner Colon spoke of the need to reduce density along U.S. 1 and the river access; it is being cut in half, which seems to be the trend; and they want to reduce density. He stated just because the developments north and south of this piece of property were constructed years ago at a higher density does not mean that is the right way to go; and they do not need to continue to follow in that aspect. He stated today they are realizing the impacts of that mistake; he appreciates the fact that the applicants changed their request to EU; he would have been satisfied if they had changed it to RR-1; but they did not do that. He stated they are currently allowed one unit per two and one-half acres; and they can do well with that if they choose. He stated he has a lot of interest in big parcels of land; they know all of their neighbors, and they have nearly seven acres of land; and a lot of land is a wonderful thing. He stated at the Advisory Board meeting on this issue, Mr. Nohrr indicated that because of the type of properties to the north and south of this that this should be accepted; he got the hint, because Mr. Nohrr is an attorney, that could be a problem and that he might be trying to intimidate; but he does not want to make accusations. He stated North Merritt Island has put a lot of effort in over the past six to eight months trying to let the Board know that it wants to have the infrastructure addressed before a lot of building starts; there are hundreds of acres of orange groves up there that are going to be converted; and infrastructure needs to be looked at now before it is too late. He stated they do not have to make a rezoning change just because there are expert speakers or an attorney present; the Board needs to look at the issues today and where it is going to go tomorrow; and if some type of lawsuit comes up, the North Merritt Island homeowners will stand for the County to support what they want.

Chairman Pritchard stated he only has received one letter.

Linda Noble stated she moved to Crisafulli Road from Sunset Lakes; they were there when there were 100 houses there, but now there are 469 houses, and it is a real nightmare to have houses that close. She stated it took her nine minutes to go from the entrance to Sunset Lakes to S.R. 528, which is less than two miles; and it took her seven minutes to go across the S.R. 528 causeway to Cocoa. She stated she has to go to pick up her son; it used to take her approximately 20 minuets each way; but now it is taking almost an hour. She stated North Merritt Island is getting too crowded; it is not just affecting North Merritt Island but all of Merritt island; the Island is full; and they only have one volunteer fire department above the barge canal and no other emergency services except for a veterinarian’s office.

Shaye Williams stated he is in opposition to the zoning request; the property appears to be trapped and a victim of historically bad planning; the 18 acres is a beautiful chunk of land; it has its own value in just its size; but it is trapped between two high-density developments. Mr. Williams stated adjusting the zoning to capture the density equivalent to what surrounds it does not appear appropriate; the surrounding homeowners have expressed concerns; and he agrees with them. He stated there are concerns that need to be addressed before it can be developed in that manner; they are looking at infrastructure on North Merritt Island that is accounted for in the Comprehensive Plan; and they are not living up to the Plan at the same rate they are allowing homes to be built. He stated no one is trying to stop anyone from using their land in the manner they want to; but it does not appear to be appropriate to develop at the high density the property is surrounded by; and that is an unfortunate circumstance and is based on historical planning and what appeared to be good at the time. He stated North Merritt island has changed considerably over the past few years; over the last 20 years there has been a dramatic change; and it is unfortunate that this parcel is under the confines it is surrounded by; but to change the zoning classification does not appear to be appropriate.

Mary Hillberg stated Ms. Williams already expressed the North Merritt Island homeowner position; and she concurs with that. She stated she is also a resident of Sunset Lakes and was the first vice president on the board there; her husband was the past treasurer on the board; and she has some knowledge of some of the issues there. She stated stormwater drainage is to the point that the St. Johns River Water Management District refuses to release the permit from the developer to the homeowners association because they are still not in compliance; and pointed out the front section of Sunset Lakes on the map. She stated initially when it was first being built, all the lakes were not there; they are manmade retention ponds; the entire front section of the community drained into the ditch that went along there; all the businesses drain into the back ditch; and pointed out the path of the ditch. She stated if the ditch is filled with runoff from another community, it will not be able to empty as it does not; and it will adversely impact all the homes on the front portion of Sunset Lakes.

Chairman Pritchard inquired how does Ms. Hillberg know that; with Ms. Hillberg responding because she has researched it and lives there. She stated she has spoken to the developer and with the St. Johns River Water Management District. Commissioner Carlson inquired if the St. Johns River Water Management District said the applicants’ property would flood at the point Ms. Hillberg specified; with Ms. Hillberg responding no. Ms. Hillberg stated she said St. Johns River Water Management District has not released the permit for any of their stormwater problems; it is not the initial problem that is doing it; the problem the District is concerned about is on the side; and it has been found to not be in compliance. Commissioner Carlson inquired what is that concern and is it a construction concern or a drainage concern. Ms. Hillberg responded it is partially a construction concern and partially a drainage concern; it is a combination of concerns; but when St. Johns River Water Management District does not release a permit, it does not release the permit. Commissioner Carlson stated she seems to be having déjà vu on this as far as the District not releasing a permit; and inquired how long has this been going on. Chairman Pritchard stated there is a lot more to this. Ms. Hillberg stated the last time this issue was before the Board, the developer was the one who had developed Sunset Lakes; and one of their issues was they could not do this because they had not finished cleaning up the other. Chairman Pritchard stated that was the position that was taken; and requested Ms. Hillberg point out Killarney on the map, with Ms. Hillberg doing so. Chairman Pritchard stated there is a lake; the water flows under there, takes a left turn on the west side of Killarney, goes down about 50 feet, takes a right turn, goes through someone’s yard, takes another right turn and goes into another yard, takes a left turn and goes under Tropical Trail; all of the joints have failed; Killarney had a hole in it; and they are taking some action to see that it is repaired. He stated the problem is an infrastructure problem; they should not put bends in pipes; every time there is a bend in a pipe, there is an opportunity for fault; and what is on Killarney is almost like something Rube Goldberg would have done. Ms. Hillberg stated there are two 90-degree turns.

Chairman Pritchard requested Mr. Teimouri explain why the flooding would not occur if they develop the Wiggins property. Mr. Teimouri stated before Sunset Lakes was developed, everything used to sheetflow; when it was developed, the ditch was designed to bypass all of that to allow offsite drainage to continue going where it was going prior to the development; and it will continue going there. He stated the problem currently might be a culvert, but they do not know that for sure now; the culvert might be undersized or a smaller size downstream than it is upstream; and that could create a problem; but there is nothing anybody else has created so far. He stated the elevation is 15 feet at the road and then ten feet; with Chairman Pritchard advising there is a five-foot drop. Mr. Teimouri stated they are not going to exceed any of the current runoff; whatever rate is producing runoff now will be allowed to discharge as well; and it will drain toward the road and come to the retention pond and the ditch where it is going now.

Commissioner Scarborough inquired if anyone has gotten Ron Jones out there to look at the problem; with Chairman Pritchard responding yes, to look at the problem with Killarney. Commissioner Scarborough stated it would have been nice for Mr. Jones to be at this meeting. Chairman Pritchard stated the problem with Sunset Lakes is inherent to Sunset Lakes; the Killarney problem is a matter of joints that have failed; and Mr. Jones is on top of it. He stated the issue with Sunset Lakes is a private development so it is a matter of expending public funds; and Mr. Jones has been able to work things out. Commissioner Scarborough stated he has run into the same problem; Sunset Lakes is designed with all those private lakes in it; there are good things about having the retention onsite; but then he hears the overflow is not well planned. He stated because there is a problem, they cannot punish the neighbor; but by the same token they want to make sure they do not make the problem worse by their action. Chairman Pritchard stated that is correct; he lived there for a little over a year; just south of him was a small retention pond; and he never saw any flooding in that one or the one across the street; but he does know Killarney had serious problems. He stated sometimes what happens is when property gets developed, whether it is in Citrus Isle or Sunset Lakes, the property in between the two ends up getting flooded because now the water that used to stay on the property is not staying on that property, but is going to the undeveloped property. He stated the issue is there is a problem that needs to be address; St. Johns River Water Management District has been involved; but he does not know the status at this point.

Chris Cook stated he too got caught in the traffic that was backed up for over a mile trying to get to the meeting today; so traffic can be affected. He stated the applicant also said there is not going to be a drainage problem; and there may or may not be; but the odds are that there probably will be. He stated at the December meeting, Commissioner Pritchard made a motion to deny the item until the drainage problems were cleaned up; it is obvious they are not cleaned up; and that is a good reason to deny this until it is cleaned up. He stated that is the smart thing to do; but somehow along the line the developers have said if they do not increase density, it is not growth; but if there is a pasture there and they put in homes at one unit per two and one-half acres, that is growth. He stated it is limited growth and may be closer to smarter growth than most; and North Merritt Island is not anti-growth. He stated the burden of proof is on the applicants; and he does not think increasing the profitability or intimidating people with discrimination is a compelling reason to increase density, especially when infrastructure is so strained. He suggested looking at increasing fines for developers if they violate the Code; and stated with inflation and the booming prices of real estate, the fines have been reduced to just a nuisance cost of doing business, and they should be increased so they are real deterrents.

David York stated he lives on Killarney Court, adjacent to the property being discussed; there is a serious drainage problem there; and pointed out his property on the map. He stated behind his property is a hole as big as the Commission Chamber and five feet deep; it is wet and stays wet; and when it rains, it floods. He stated he has to watch it because he does want water coming in his back door; and if the water engineer says there is no drainage problem there, he has a problem because there is a problem behind his house that needs to be addressed. He pointed out his property on the map; stated behind it is where the problem is; and if they are going to put a house on that property, they need to address what they are going to do. He stated the property is full of stumps, old trees, and a bunch of stuff; and inquired if they are going to build a house right on top of it.

Chairman Pritchard stated that is something that comes up later; zoning is the issue the Board is talking about tonight; and permitting, construction, and infrastructure comes up at a later date. Mr. York stated it should be denied until they take a look at it; and he would welcome Chairman Pritchard calling him. He stated he is on the board of directors; and invited the Commissioners to come to the meeting on March 22 and talk to some of the people who live on Killarney and have a problem there.

Will Wiggins stated he can shed a little light on one of the drainage problems that is in a low area; recently people on the north in Citrus Isle requested his brother fill in a ditch that ran all the way down to a pond; the pond was built mutually between the two landowners, his father and the person next to them; and it was not only for drainage but to develop the land for citrus. He stated the other ponds were dug for irrigation; his father was trying to get a little bit fresher water in the first pond; his father was an agricultural engineer with the federal government for the County; and he was very knowledgeable in planning that. He stated the drainage problem could be remedied by the development; it was brought on because of people’s desire to trespass on his property; and submitted pictures showing some of the garbage that has been put in his orange grove. He stated he has been fined for not keeping the grove mowed; but he had rebar wrapped around his mower so many times that is it is not funny; and he ran over bricks. Mr. Wiggins stated it is not from the developer but from the people who had pools built in their backyards after the development, throwing their excess trash on his land; and that is still being done. He stated the drainage ditch that was draining the property had bridges built across it so people could come into his grove, take oranges, and walk their dogs. He stated he knows trespassing is against the law; he is not an advocate of shooting someone for coming across his land; but he yanked the bridges out many times. He stated his brother was the executor of the estate when his mother died; people pleaded with him to fill in the ditch; he agreed, trying to be a good neighbor; and he agreed with his brother, but it was against his wishes because he knew it would create a drainage problem and make it easier for people to trespass. He stated he heard a lot tonight about density; Brevard County is growing fast; and requested the Board consider increasing density instead of decreasing density. He stated more people want to come down to live here than anywhere else in the country; and if the Board will start looking ahead to future generations, he does not know where the land will be if all they do is built single-family dwellings. He stated if they limit the density to one house per acre, or one house per two and one-half acres, it will limit the number of people who can come here to live; it will limit growth; and the land is going to run out faster. He stated in thinking of the new Comprehensive Plan, he proposes the Board increase the density; and suggested instead of building 250 houses, it could build 1,000 units on ten acres and preserve the rest of the land. He suggested having one floor of a condo being a place for a school; stated they are doing that in Southeast Asia and in Europe because of the population problem; and the population of the country and the County will not go down. He stated the population will continue to grow; they need to consider that for future generations; and inquired where are they going to be and where is the land going to be. He stated if they preserve it wisely and increase the density, they will be able to have some natural resources, and animals will be able to have their place too. He stated everybody will be able to live a little better than everybody sprawling out in urban development. He recommended the Board approve the rezoning because it would be better for the community.

Mr. Nohrr stated he is reading from the traffic engineer’s report; the total traffic including the proposed Merritt Island residential project traffic equals 2,434 trips; it is approximately 16% of maximum capacity at the adopted level of service; and he is talking about North Tropical Trail. He stated the objective criteria for traffic is not a reason to deny the rezoning. He stated in terms of drainage, they have acknowledged that Sunset Lakes has some drainage issues; it received the drainage permit from the St. Johns River Water Management District; but the problem is the St. Johns River Water Management District does not allow the transfer of that permit over to the homeowners association until the developer does what the permit tells him to do; and that is where they are bogged down. He stated a permit from St. Johns River Water Management District has been issued as it relates to Sunset Lakes; Mr. York talked about the hole in the back being wet; if their development is allowed to go forward, that particular problem would go away; and ironically their project, if developed, would help Mr. York because they will change the drainage from that whole area and move it to the north and down the middle of the road they are going to put in. He stated the very wet area that Mr. York is concerned about will go away when they do their development. He stated their post-development discharge must be no greater than it was at pre-development; and that is exactly what is going to happen. Mr. Nohrr stated one of the other people from Citrus Isle said they were going to use their ponds; but they are not going to use their ponds; and pointed out the location of the pond and the location of the area they will be using. He stated they will use the area everybody south of Sunset Lakes is using and they are entitled to use because it is a drainage easement that takes the drainage that way. He reiterated they are not going to negatively impact the neighbors to the north or south; the Board has objective criteria; and they have met or exceeded every one of the objective criteria. He stated he spent a lot of time on compatibility because that can be debatable; but it is inconceivable to him that people who live on a 90-foot wide lot in EU-2 at 9,000 square feet can say that their proposed development that is sandwiched in and is at 15,000 square feet per lot is incompatible. He stated that defied common sense; and he agrees with the one gentleman who was in opposition who said the property is trapped. He stated they are trapped to the north and south; they do not have a large parcel; they do not have a lot of width; and they have cut back to try and be a good neighbor. He stated they took the project down by 25% from 50 lots to 37 lots; and they believe it is compatible by any objective standard. He requested a favorable vote on the rezoning request.

Commissioner Scarborough stated he is perplexed; they know that Sunset Lakes is not working; but the Board has encouraged, through clustering, to keep open areas for drainage collection. He stated they are saying that does not work; they are saying it may be the design of the system; but just looking at the lot sizes, there is certainly a difference in what is being offered by the developer and the lot sizes to the south. He stated there are still unanswered questions dealing with what has occurred with a more sophisticated product; to say that it is not all a related discussion would be remiss; and he does not think that is responsible.

Chairman Pritchard stated the problem is the Board tends to focus on Sunset Lakes; but it started off as one thing and morphed into something else. He stated it started off as a golf course community, but then became something else; it ebbed and flowed; and when they added Island Lakes, it increased density on the Sunset Lakes side and gave two and one-half acre lots or so on the west side of Tropical Trail.

Commissioner Scarborough inquired if there are drainage problems on the Citrus Isle side; with a speaker from the audience advised Citrus Isle is fine.

Chairman Pritchard requested Mr. Enos provide his professional opinion on the request for zoning fitting between the two areas and substantial competent evidence to accept or deny. Mr. Enos stated the Board has seen substantial competent evidence presented by the applicants dealing with the drainage and traffic issues; the classification requested as amended is certainly consistent with the land use plan; and in his opinion it appears to be compatible with the developed character of the neighborhood. Chairman Pritchard inquired about transportation, water, drainage, and the impact of water on the properties; and stated he is asking a lot of questions just to get a general response. He stated S.R. 3 is awful when the Space Center lets out from approximately 3:10 p.m. to 4:30 p.m.; it flows but it is bad; S.R. 528 is bad now because of the construction that is there; but S.R. 3, except for the two-plus houses is a breeze. Chairman Pritchard inquired if that is factored into a calculation in terms of the compatibility of the road. Mr. Enos stated there are two ways to measure capacity of a road; one is by peak hour and one is by average daily traffic; and naturally peak hour is worse. He stated concurrency is based, by Code, on average daily traffic; when they do a concurrency analysis, they look at the total traffic and the capacity of the road; and all they are doing is just measuring the capacity of the road and the impact that the project will have once the current traffic is added. He stated there is no further analysis done at that time; at the zoning stage, it is just a best guess; but things can change as time goes on and they do more than one concurrency analysis. He stated they will do another concurrency analysis for a project when it hits the subdivision stage; and what they find at the zoning stage may be different when a project gets to a final development plan stage; the project tends to be different; conditions tend to be different; and that can be positive or negative. He stated improvements could have been made to the road in the interim; so at the zoning stage, there is just a rough estimate of what the conditions are. Chairman Pritchard stated a traffic study was done for North Tropical Trail showing it at 16%; with Mr. Nohrr responding that is correct. Mr. Enos stated there is no problem on Tropical Trail; and staff is showing it at 15% and the applicant is showing it at 16%. Chairman Pritchard stated the problem he has with not accepting this is his concern about substantial competent evidence. He stated the experts are telling him this is going to work; and they are saying that the issues that are raised are not expert opinion but perhaps observations or conjecture. He stated the analysis of the situation talks about compatibility; ironically there is lesser density between the two subdivisions; generally looking at transition areas, they go from two and one-half, to one, to one-half; but this is going to a lower density in the middle with 37 homes that will generate x number of trips. He stated Citrus Isle has 51 units and Sunset Lakes has more than 400 units. He stated the water issues are a concern; but they are also a concern elsewhere, such as off Chase Hammock Road and Crisafulli Road; and those areas need to be better addressed. He stated it has been shown time and again that sometimes the reason they have flooding problems is because the development that goes on sends the water that used to be on a yard over to the next property because it was not engineered properly to begin with. He stated they may remember an issue the Board had with St. Andrews and Sawgrass and some eagles that were not there; the Board took the position of denying the application; it went to court; and the 18th Circuit Court ruled that the County failed to prove the development would have any significant impact. He stated he does not know how many thousands of dollars the County spent on that litigation; but the Board cannot base a decision on supposition and must based it on facts. He stated the facts support the applicant; and he would support the request.

Chairman Pritchard passed the gavel to Vice Chairman Voltz.

Motion by Commissioner Pritchard, seconded by Commissioner Voltz, to approve Item IV.D.4 as EU with 37 lots.

Commissioner Scarborough inquired Sunset Lakes has how many units; with Mr. Nohrr responding 432 units. A member of the audience advised it is 469 units. Commissioner Scarborough inquired how many acres is it; with Mr. Nohrr responding 160.2 acres for 432 units; and he suspects his numbers reflect what is east of North Tropical Trail. Mr. Nohrr stated there is a net tract density of 3.5 and a gross tract density of 2.7 according to what the engineers gave him. Commissioner Pritchard inquired if 2.7 units per acre allows for Island Lakes across North Tropical Trail; with Mr. Nohrr responding it would include all the lake areas. Vice Chair Voltz stated that is where the difference comes in.

Vice Chair Voltz called for a vote on the motion. Motion carried and ordered; Commissioners Scarborough and Colon voted nay.

Commissioner Scarborough stated he agrees they cannot walk away from this; it is just that there were more questions; and it got more complex than his briefing led him to expect.

Mr. Enos stated the motion did not specify, but the application was amended to EU; and inquired if that was the intent. Commissioner Pritchard stated that was what he was approving, with 37 lots.

Vice Chair Voltz passed the gavel to Chairman Pritchard.

Item V.D.5. (NMI50205) Brad A. Lange’s request for CUP for Alcoholic Beverages for On-Premise Consumption (beer and wine) in BU-1 zone on .75 acre located on the east side of North Courtenay Parkway, south of Chase Hammock road, which was recommended for approval by the Planning and Zoning Board.

Motion by Commissioner Voltz, seconded by Commissioner Scarborough, to approve Item V.D.5 as recommended by the North Merritt Island Dependent Special District Board. Motion carried and ordered; Commissioner Colon voted nay.

PUBLIC HEARING, RE: ADMINISTRATIVE REZONINGS

Chairman Pritchard called for the public hearing to consider the recommendations on administrative rezonings made by the Planning and Zoning Board at its meetings of January 10, and February 7, 2005 as follows:

Item V.E.1. Section 13, Township 27, Range 36, Sub. 76, Lot 8 on 0.27 acre, owned by Unity Church of Melbourne, Inc., currently zoned RU-1-13 with CUP Z-10877 and Binding Development Plan, and proposed to remove CUP Z-10877 and Binding Development Plan, which was recommended for approval by the Planning and Zoning Board.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item V.E.1 as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

Item V.E.7. Section 13, Township 27, Range 37, Parcels 500, 504, 750, 751, and 752, Sub. 77, Lot 20 on 31.25 acres, owned by Diocese of Orlando, Norbert M. Dorsey, Bishop, currently zoned RU-1-7 with Binding Development Plan, RU-2-8, RU-2-10, RU-2-15 with CUP Z-4836 for church on Parcels 500, 750 and 751; CUP Z-8622 for church with Binding Development Plan on Parcel 504; and CUP Z-10726 for church on Parcel 752, and proposed to change to IN(L) removing CUP’s Z-4836, Z-8622, and Z-10726 and retaining Binding Development Plan on Parcel 504 and Sub. 77, Lot 20, which was recommended for approval by the Planning and Zoning Board and the Board of County Commissioners.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item V.E.7 as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

Item V.E.15. Section 12, Township 28, Range 36, Parcels 20 and 55, Sub. 01, Lots 13 and 14 on 10.71 acres owned by Church of God at New Hope Sanctuary Church of God, currently zoned AU with CUP’s Z-10076 for school on all and Z-9895 for school on Parcel 55 only, and proposed to change to IN(L) removing CUP’s Z-10076 and Z-9895, which was recommended for approval by the Planning and Zoning Board and the Board of County Commissioners.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item V.E.15 as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

Item V.E.17. Section 13, Township 28, Range 36, Parcels 760, 769, and 770 on 10.99 acres owned by AEA International, Inc., currently zoned AU, and proposed to change to IN(L), which was recommended for approval by the Planning and Zoning Board and the Board of County Commissioners.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item V.E.17 as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

Item V.E.39. Section 15, Township 30, Range 38, Parcels 251 and 259 on 24 acres owned by Diocese of Orlando, Thomas J. Grady, Bishop, currently zoned AU, and proposed to change to IN(L), which was recommended for approval by the Planning and Zoning Board and the Board of County Commissioners.

Motion by Commissioner Colon, seconded by Commissioner Voltz, to approve Item V.E.39 as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

INQUIRY, RE: COUNTY MANAGER POSITION

Commissioner Voltz stated Henry Hill, who was a former City Manager of Melbourne, is interested in the County Manager’s position; he is currently living in Texas, but wants to move back; and inquired where should he send his resume.

Interim Assistant County Manager Ed Washburn advised the Board decided to shortlist the search firms to five firms on March 8, 2005 and will do the presentations on March 22, 2005; after that, he would suggest Mr. Hill send his resume to the selected firm; but if he wishes Mr. Hill can send his resume to the County.

Upon motion and vote, the meeting was adjourned at 11:57 p.m.

_____________________________________
RONALD PRITCHARD, D.P.A., CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
ATTEST: BREVARD COUNTY, FLORIDA

_____________________
SCOTT ELLIS, CLERK

(S E A L)