April 15, 2004

The Board of County Commissioners of Brevard County, Florida, met in regular session on April 15, 2004, at 5:33 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chair Nancy Higgs, Commissioners Truman Scarborough, Ron Pritchard, Susan Carlson, and Jackie Colon, Assistant County Manager Peggy Busacca, and Assistant County Attorney Eden Bentley.

The Invocation was given by Reverend Steven Schantz, World Wide Church of God, Melbourne, Florida.

Commissioner Truman Scarborough led the assembly in the Pledge of Allegiance.

REPORT, RE: PALM BAY ANNEXATIONS IN THE VALKARIA AREA

Assistant County Attorney Eden Bentley stated the Board requested information regarding Palm Bay annexations in the Valkaria area; the inquiry was if there was sufficient time to challenge the items, if necessary; and there is sufficient time. She advised the item will be before the Board on Tuesday, April 20, 2004; she anticipates staff will withdraw the item; and it will come back before the Board re-advertised with another parcel. She stated the issues at that point will change; but there is time to deal with the matter at a later date.

REPORT, RE: DEFINITION OF CONTIGUOUS

Commissioner Pritchard stated he read the definition of contiguous, and has a much better understanding of why number 1 and 5 regarding the Palm Bay annexations play such an important role. He stated he appreciates his staff briefing him fully on that.

REPORT, RE: EAST CENTRAL FLORIDA REGIONAL PLANNING COUNCIL

Commissioner Carlson stated the Board has had several discussions on the purpose and meaning of life as it relates to the East Central Florida Regional Planning Council (ECFRPC). She stated she was digging around trying to figure out what the next step for Myregion.org was financially; and the discussions the Board had have been on the membership assessments and fees. She advised she received information from Executive Director Sandra Glenn that spoke to the last 3 years in terms of the scope of service of Myregion.org, and the cost associated with it, and it did not come up to the cost she was expecting. She advised she will pass out to the Board what she has received; and they came in the form of attachments, which she had not seen before. She stated it is called September 2003 Comprehensive Economic Development Strategy for East Central Florida. She advised it is a lot of the stuff that Myregion.org had defined for its source book; and wondered if any of the other Board members had received a copy of it. She stated she did more investigation regarding a memorandum that Assistant County Manager Peggy Busacca had written dated April 5, 2004; and on the memorandum it spoke of specific projects undertaken by the ECFRPC, which were included in an annual work program adopted by Council. She stated she received a copy from Commissioner Pritchard’s office since he sits on the ECFRPC; and she checked to see where Brevard County’s membership assessments are being used. She noted she did not find anything overly surprising other than the fact that the membership assessments are used for things the County does not use much; and he does not know if the Board has a copy of it dated September 2003 called The Work Program and Budget. She passed it down for the rest of the Board to see. She stated the memorandum Ms. Busacca put together for the Board provided the Statutes that created the ECFRPC, but she wanted to see what its mission was. She advised she had not received that information; but was looking for a program of work with substance of what it does. She stated she wanted basic questions answered on what the part the Council is playing in Myregion.org; and it does not speak to that in the annual work plan. She requested more investigation on it by staff. She stated she wanted to bring it to the Board’s attention in case a Commissioner has any detail to add in terms of anything he or she had found out.

Commissioner Scarborough stated it was attached to the memorandum received from Ms. Busacca dated April 5, 2004; it is planning programs; and it reads very well. He stated the word regional keeps repeating itself. He stated he was in Orlando having lunch with people dealing with the second phase; and tomorrow April 16, 2004 several Commissioners will be present at the alliance. He stated there is a dynamic moment in this community of seven counties; and it is distressing to him to see the Planning Council failing to capture the opportunities. He advised he has heard it said the sins of omission are much more dangerous than sins of commission. He stated life is not a test, life is a failure because the Council failed to realize opportunities that exist. He stated he does not care if he agrees with the programs or if the Council is going in a different direction than him, but thinks they need to be further engaged. He stated all he wanted to see was a letter to the Chair or the Board saying the Council has a vision or a thought process; and the silence on their part is deafening as far as he is concerned. He stated he has touched base with several Commissioners in other counties; the other Commissioners agree and do not know what to do with it; and they just want to know where to go with this. Commissioner Carlson advised it is up to Brevard County and its delegates on the Council to bring it to a head and ask where are we going and what is the Planning Council’s mission in doing this. Commissioner Scarborough stated he does not know what it is but there is something there that looks like the Council wants to take the easy route and will not think out of the box, and it is disturbing to him. He stated he is beginning to understand why sometimes a person needs to abolish an entity to make progress; and noted sitting with a name like this and doing nothing is a failure on the part of the greater community. Commissioner Carlson stated one of the assumptions she made was about the letter the Board proposed to send to the Atlanta region in support of the economic development district, which was requested, but when she saw the book, it was made up as if they were aiming for it all along. She stated she does not have a problem with economic development, but the way it was put out there to the community as a whole was to look at all aspects; looking at that document, it does look at all aspects; but ultimately it goes to one purpose and the only connection she found in the annual program was the economic development piece to all of this. Commissioner Scarborough stated maybe Brevard County thinks more dynamically because many times Brevard County had the most people at the meetings; and they talked about the County’s ability to collect and analyze data. He advised sometimes to do a job a person needs to be out of sync with the rest of the world; and he thinks the rest of the world is going to look to Brevard County and say thank you for saying something is wrong with the way things are happening. He stated the three members of the Board who do not sit on the ECFRPC have more opportunities to push an aggressive agenda.

Commissioner Pritchard stated he and Commissioner Colon are new to the Planning Council; they have begun to experience the frustration the rest of the Board has experienced in its tenure; and they look to the other three members of the Board to provide them with the guidance and insight so they can do the best job possible. He stated because he and Commissioner Colon sit on the Board, it can be awkward for them to throw a dart or two. Chair Higgs advised she threw some when she sat on the Board, but does not know if it helped. Commissioner Pritchard advised Brevard County is paying well over $100,000 a year to the ECFRPC. Commissioner Carlson stated the buy-in from the Brevard County Commission, as well as other commissions, for Myregion.com, which she supports, was that the bigger picture would come out and there would be benefit to everyone in many different avenues. She stated it is a concern if the Board is paying over $100,000 in membership; it is one of six other counties that do that; and it needs to know what that money is paying for. She inquired if a formal letter could be put together as a Commission to ask the Council those questions; with Chair Higgs responding it should start with the work program and request staff justify what the work program does, and if it not justified then eliminate that and cut the assessments. Chair Higgs stated that would be the logical place to start. Commissioner Scarborough advised he is not inclined not to pay the Council or cut the budget. He stated last year Chair Higgs asked why do they call the roll when everyone is already signed in and there is a limited amount of time. He stated then they cancel meetings and claim they do not have time to talk about regional issues. He stated the Council has an agenda, the members hear the Councils agenda in its manner; and it has limited time so it cannot allow sufficient discussion of items of broader scope. He stated there is a fundamental failure in the institution that needs to be changed; he does not mind paying more to make it work; but he wants to see it work. Chair Higgs advised she believes in planning; she wants to see it work; but it just does not get there. She stated one of the things Ms. Busacca sent to the Board in the memorandum was the discussion about the Charter for the Regional Planning Council, but there was not really a Charter. She stated there are operating procedures or by-laws, and she thinks the Board needs to have those. Commissioner Carlson stated Ms. Busacca did send those’ amd it was laid out in the creation of membership that was attached to the memorandum. Commissioner Scarborough advised he likes Commissioner Carlson’s idea of sending a letter to the Council and a copy to every Chairman of every County Commission as well as all members; and the letter should be positive. He stated it should say Brevard County Commission fully supports a regional approach to problems and thinks it is beneficial to each individual community; it believes the Planning Council has a fundamental and positive role in making it transpire; it wants to see it articulated with the type of role that it envisions it can play; and ask the Council to please respond.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to direct staff to draft a letter to be signed by the Chair to the East Central Florida Regional Planning Council to say Brevard County Commission fully supports a regional approach to problems and thinks it is beneficial to each individual community; it believes the Planning Council has a fundamental and positive role in making it transpire; it wants to see it articulated with the type of role that it envisions it can play; and asked the Council to please respond. Motion carried and ordered unanimously.

RESOLUTION, RE: SUPPORTING CONTINUED OPERATION OF PATRICK AIR FORCE
BASE AND CAPE CANAVERAL AIR FORCE STATION

Commissioner Pritchard advised he has a Resolution supporting continued operation of Patrick Air Force Base and Cape Canaveral Air Force Station; and copies of the Resolution will be sent to President George W. Bush, Governor Jeb Bush, Honorable Bob Graham, Honorable Bill Nelson, Honorable Dave Weldon, and Honorable Tom Feeney. He stated everyone knows the value of Patrick Air Force Base and Cape Canaveral Air Force Station; but it is a time for the Board and the community to become more proactive in ensuring the continued operation of those two facilities.

Commissioner Pritchard read aloud a Resolution supporting continued operation of Patrick Air Force Base and Cape Canaveral Air Force Station.

Economic Development Commission Director Lynda Weatherman stated on behalf of the Space Coast Defense Alliance, she wants to thank the Board for the Resolution and for its long time support. She stated yesterday she and her staff met with the Chairman of the Governor’s Advisory Board for Base Realignment and Closure to make sure there is a blending, and she wants to preserve and enhance Patrick Air Force Base and the other military operations in the County. She stated Brevard County needs to make sure its strategy is the blending with the statewide strategy to preserve all the bases. She stated the Space Coast Defense Alliance is a committee of people from throughout Brevard County, including the Assistant County Manager Peggy Busacca who has worked very hard on it; she is happy to give the Board periodic briefings on the situation; and a lot of work needs to be done. She stated the Board’s support sends a strong and clear message to the Pentagon; and it does make a difference. She advised the base is important; Brevard County takes it seriously; and they will work hard to preserve and enhance the operations.

Chair Higgs advised it does not hurt anyone who may be watching to add support to Patrick Air Force Base through letters through the various elected officials, and to the Pentagon. Ms. Weatherman advised if a person wants to go through the EDC web page there is a military web page; go through that; there is information and updates; and it would help if people want to provide assistance.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Resolution supporting continued operation of Patrick Air Force Base and Cape Canaveral Air force Station; and presented the Resolution and copies of the Resolution for distribution to Economic Development Commission Director Lynda Weatherman. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: TABLED ITEMS FROM THE OCTOBER 7, 2002, OCTOBER 13,
2003, AND NOVEMBER 10, 2003 PLANNING AND ZONING AGENDA

Chair Higgs called for the public hearing to consider tabled items from the October 7, 2002, October 13, 2003, and November 10, 2003 Planning and Zoning Agenda, as follows:

Zoning Official Rick Enos advised there are two withdrawn items and one tabled item; IV.A.1 for Charles R. Stack has been withdrawn; IV.B.7 for Nevins Fruit Company has been withdrawn; and IV.B.6 for J. J. Parrish, Jr., Trustee has been tabled by the Planning and Zoning Board; and the tabled item should be tabled until the May 6, 2004 Board of County Commissioners meeting.

Item IV.B.6 (Z0401107) J. J. Parrish, Jr. Trustee’s request for a change from AU to RU-1-11 on 178.71 +/- acres, located at the northwest corner of Hammock Road and Wiley Avenue, and extending west to Palmetto Avenue, which was recommended by the Planning and Zoning Board to be tabled to the April 12, 2004 Planning and Zoning meeting and the May 6, 2004 Board of County Commissioners meeting.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to table Item IV.B.6 to the April 12, 2004 Planning and Zoning Meeting and the May 6, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Chair Higgs advised the audience of the procedure for addressing the Board.

Item IV.A.1. (Z0310304) Charles R. Stack, Trustee, and Gene Kubicki’s request for a change of classification from SR to EU-1 with an amendment to the existing BDP on property located on the northeast corner of Valkaria and Weber Roads, which was recommended by the Planning and Zoning Board for approval with amendment to the Binding Development Plan, allowing for ¼-acre minimum lots, and development to comply with the open-space subdivision
regulations in Section 62-3000.

This item was withdrawn by the applicant.

Item IV.A.2 (Z0210501) William P. Turnbaugh, Trustee’s request for a change from AU to RR-1 on 81.09 acres located on the east side of Simon Road, south of Milwaukee Avenue, which was recommended for approval by the Planning and Zoning Board.

William P. Turnbaugh stated staff requested a more intensive study; he has been busy and did not finish it sufficiently before the meeting; and he would like it to be tabled until a later meeting.

Motion by Commissioner Colon, seconded by Commissioner Scarborough, to table Item IV.A.2 to May 20, 2004 Board of County Commissioners Meeting. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATIONS OF
MARCH 8, 2004

Chair Higgs called for the public hearing to consider items from the Planning and Zoning recommendations of March 8, 2004.

Item IV.B.1 (Z0403301) This item was removed from the Agenda.

Item IV.B.2 (Z0403401) Laurie J. Kennedy Powell’s request for a CUP for Farm Animals and Fowl in an RR-1 zone on 5 acres, located on the south side of The Willows Drive, west of Clydesdale Boulevard, which was recommended by the Planning and Zoning Board to be approved for a total of six Alpacas.

A representative for Laurie J. Kennedy Powell advised she is present to support or answer any questions.

Commissioner Carlson stated the Planning and Zoning Board recommended approval for a total of six alpacas on the property; and inquired if the CUP is under the guidelines on the zoning; with Zoning Official Rick Enos responding yes.

Motion by Commissioner Colon, seconded by Commissioner Pritchard, to approve Item IV.B.2 as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

Item IV.B.3 (Z0403402) Cousins Properties, Inc.’s request for a CUP for Alcoholic Beverages on On-Premises Consumption in a PUD zone on 1.31 +/- acres, located on the east side of Lake Andrew Drive, south of Judge Fran Jamieson Way, which was recommended by the Planning and Zoning Board to be approved as an accessory to a restaurant use only.

Jerry Johnson, Engineering Manager for Longhorn Steak House, stated the item was approved by the Planning and Zoning Board for a CUP for on-premises liquor sales; and he wanted to be at the meeting to answer any questions the Board may have.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to approve Item IV.B.3 as recommended by the Planning and Zoning Board to be approved as accessory to a restaurant use only. Motion carried and ordered unanimously.

Item IV.B.4 (Z0403101) James S. Browne’s request for a Small Scale Plan Amendment (04S.4) to change the Future Land Use Map designation from Neighborhood Commercial and Residential 2 to Community Commercial; and a change from AU to BU-1 on 5.12 acres, located on the east side of US 1, north of Kingman Road, which was recommended by the Planning and Zoning Board to be approved with BU-1 uses to a depth of 300 feet, with the remainder of the property limited to office use only.

Alex Sokolich stated in addition to the information and recommendations of the Planning and Zoning Board, the staff report, and the Citizens Resource Group meeting on March 18, 2004, there are additional letters of support, in addition to the letter from Brevard Lumber, from surrounding land owners. He stated there are two letters, one from Health Net and another from a restaurant nearby giving support for the rezoning and future land use change. He advised the owner has land north and south of the proposal, some of which is commercial. He stated on March 18, 2004 the Chairman of the Citizens Resource Group said the area is an ideal location for medical and professional buildings. He stated attached to the Board’s folder is the land use along US 1 to the north and south of the proposal on both sides of the highway and a one-page summary detailing the facts from the staff report and the Planning and Zoning Board recommendations saying 81% of the land use surrounding the area is Community Commercial. He stated the proposed future use is about compatibility with the 16 existing land uses along US 1 and consistency with the Future Land Plan of Brevard County. He stated there is a need for quality medical and professional buildings just north of the area, which is on US 1 where Parrish Medical Center was constructed. He stated it across from Dairy Road; and all the owners and land uses both north, south, east, and west are listed in items given to staff and the Planning and Zoning Board in March. He stated James Browne is the owner, and he is acting as the representative.

Commissioner Scarborough inquired if the Planning and Zoning Board recommended a depth of 300 feet, but the applicant requested more depth than that; with Zoning Official Rick Enos responding the Planning and Zoning Board approved the entire application limiting use of that area past 300 feet to professional offices. Commissioner Scarborough inquired if the applicant had a problem with the manner it came out of the Planning and Zoning Board; with Mr. Sokolich responding Mr. Browne would have preferred 500 feet for a number of reasons, including it is on a federal highway, existing land uses, and a landscape area. Mr. Sokolich stated the site has been altered many times with citrus and clearing; they would prefer the 500 feet; but are willing to discuss other options. Commissioner Scarborough stated he does not have a problem with limiting it to 300 feet. James Browne stated the Planning and Zoning Board’s biggest concern was that the property would encroach into the Agricultural zoned property to the east, which he owns as well; and the property to the south is a trailer park. Mr. Browne advised the 300-foot depth may not be enough given the parking required for a 15,000 square foot medical building for which he has had interest expressed by Health Net Company of Titusville. He stated he was conservative when he went for the rezoning proposal to try to get the five acres; and he had intended to go for the full ten acres. Commissioner Scarborough stated he sometimes sees AU zoning like the GU zoning, which is a holding zoning; with complexity of the area it behooves the Board to encourage investments of this type to improve the entire area; and he does not see anything that would cause a problem. He stated he would like to hear from other Board members because normally it does not go contrary to the recommendations received.

Commissioner Pritchard advised when he was briefed, Zoning Official Rick Enos brought up a good point about the remaining 200 feet being zoned to another classification, thereby making it easier for the applicant to utilize the property. Mr. Enos stated it looks like, from the site plan that has been submitted, the frontage uses, such as the fast food, gas station, and restaurants, will all be in the front 300 feet, which would not have a restriction and would be zoned BU-1. Mr. Browne advised the gas stations and restaurants are only prospective; and not definite. Mr. Enos stated the medical office buildings are permitted uses in the RP zoning; the way it was proposed with the split zoning will not affect the site plan the way it is designed; and medical office buildings are permitted uses. Commissioner Scarborough inquired if the applicant understands what the RP zoning will entail; advised it is where a person can go into a residential neighborhood and do the lightest of all office buildings; and it is so light it can be set within a residential community. He stated that may or may not be acceptable to the applicant; and he will need to tell the Board. Mr. Browne stated he would rather have that option and would like to push for the entire 500 feet; and he does not want to wait to a later date and spend more money for the hearing. Commissioner Scarborough stated there are other ways to do this; the applicant can enter into a binding development plan or binding site plan where the Board can allow greater intensity; and he is having difficulty understanding who is being protected by the limitation of 300 feet. Chair Higgs stated the Board played around with the depth of the Mixed Use District on US 192; there were a variety of different depths; but she wants to be careful that as the Board makes the decision, it is the right one. She stated there was 400 feet, and as time went on big buildings took more depth. Commissioner Scarborough stated off Dairy Road may be 500 or 600 feet, looking up the way to the right angle off of US 1 that is BU-2 there; and it looks like almost the same trajectory as if there was 500 feet. He stated he is not finding objections; he is finding emerging trends; and he does not think the trends are bad; and is willing to look beyond a limitation where the limitation is not rationally based. Chair Higgs stated because of the intersection of Dairy Road and US 1, a logical statement can be made that this would be the more intense area; but she wants the Board to be careful as the limit is set.

Commissioner Carlson inquired if the applicant owns the property to the north; with Mr. Browne responding yes, he owns all the surrounding AU.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to approve Item IV.B.4 from AU to BU-1 on 5.12 acres; and adopted Ordinance No. 04-15 for Small Scale Comprehensive Plan Amendment 04S.4. Motion carried and ordered unanimously.

Item IV.B.5 (Z0403102) James S. Smith, III and Barbara Smith’s request for a change from GU to AU on 1.08 acres, located on the south side of Greenville Street, west of Alan Sheppard Avenue, which was recommended by the Planning and Zoning Board to be approved with a Binding Development Plan, to exclude farm animals and horticulture activities otherwise permitted in the AU classification.

James Smith stated he and his wife Barbara are present to answer any questions the Board may have. He advised the request for the zoning change is to permit the construction of a guest house for him to occupy when he is able to sell his home in Ohio and move to Florida; that required the zoning change and engendered some concern; and the concern is being addressed by a binding development plan. He stated the Board should have a draft of it. He stated he has a notarized copy of the joinder from his mortgage company.

Steve Lawhon stated he is neighbors with James and Barbara Smith; he did get together with the Smith’s regarding the issue; and he has no problem with what they are asking for.

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

Item IV.B.7 (Z0401108) Nevins Fruit Company, Inc.’s request for a change from AU to RU-1-11 on 20 +/- acres, located on the southwest corner of Brockett and Hammock Roads, which was recommended by the Planning and Zoning Board.

This item was withdrawn by the Applicant.

PUBLIC HEARING, RE: NORTH MERRITT ISLAND DEPENDENT SPECIAL DISTRICT
BOARD RECOMMENDATIONS OF MARCH 11, 2004

Chair Higgs called for the public hearing to consider recommendations of the North Merritt Island Dependent Special District Board of March 11, 2004.

Item IV.D.1 (NMI40201) Loyal Order of the Moose Lodge No. 2073, Inc.’s request for a change from AU to RVP on 5 acres, located on the east side of North Courtenay Parkway (SR 3), north of the Barge Canal, which was recommended by the North Merritt Island Dependent Special District Board to be approved with amended Binding Development Plan to add a two-week maximum stay provision, to stipulate that red cedar trees will be planted 15 feet apart, and to exclude that portion of the property north of the Moose Lodge building from being used for RV sites.

Michael Minot, Attorney for the Moose Lodge of North Merritt Island, stated the Moose Lodge has applied on a 5-acre piece of property for a change of zone from AU to RVP; that request has been reviewed by staff; and the staff report before the Board reflects the application and the item is consistent with the Future Land Use Element of the Comprehensive Plan in Brevard County. He advised the North Merritt Island Dependent Special District Board has met twice in public hearings in order to review the application; and as a result of that the North Merritt Island Dependent Special District Board has also recommended the item to the Board. He stated during the discussion in the North Merritt Island Dependent Special District Board stage of the item, a number of items were brought up as a result of concerns as to buffering and other items. He stated resulting from those discussions, a binding development plan was generated, which the Board has in its package. He stated he would like to distribute to the Board a subsequent version of the binding development plan because after further discussions with the Commissioners, staff, and others, there are additional protections that have been built into a subsequent version of the plan. He stated he has tried to highlight in gray the additions; there are no changes; but there are additions to add to the previous protections that are afforded by the binding development plan. He noted reviewing the binding development plan will provide a good source of understanding of what the Moose Lodge is attempting to do. He advised in paragraph 2 there are no changes but what he has done so the Board can see the intent of the applicant is to review the RVP zone, and extract all permitted uses that are provided for in the zoning category but for the ability of RV vehicles to be parked in a certain area. He stated the only remaining use he sees is to park the vehicles in the area. He stated the owner is restricting, within the 5 acres, where the parking can be done; and he wants to show the Board through an aerial survey. He stated the tract is five acres as identified in the yellow outlined portion; the Moose Lodge owns that which is outlined by the heavy black line; but the Lodge is using the five acres as the subject parcel, which is the minimum five acres required in RVP zoning. He advised the history of the parcel is such that behind the one-story block building the Moose Lodge uses as its social hall is an area where since 1985 until the present there has been parking of RV vehicles for other Moose Lodge members throughout America. He stated in 1995 there was the inclusion of electric and water hookups for those visiting members; and approximately four years ago, understanding the use was taking place, the Lodge asked for and received the applicant’s ability to put in a septic system in the area for $14,000. He stated later it was decided by the Planning and Zoning Department there should be a change of zoning to accommodate the use that has been ongoing for some fifteen years at that point; and that is the reason he is present at the meeting. He stated there is a restriction for the parking of those vehicles an be within the five acres; there is a restriction so there is no parking on the south 89 feet or on the north 439 feet, which restricts it to the historical area where the parking has been in the past. He stated one of the first changes is in paragraph 4 of the proposed plan, which sets forth the buffering by planting trees. He advised a horticulturist has suggested that southern red cedar trees are best suited for the area in order to bush out quickly and planted in a fifteen feet spacing, they will quickly provide the buffers. He stated Exhibit B to the Binding Development Plan sets forth where those would be. He stated he received a request from the neighboring property owner to the east and his representative David Wolfman, an Attorney in Viera, for additional buffering on the east side; Mr. Wolfman requested an assurance there would be a buffer between his clients property and the Moose Lodge’s project; and the buffer can be in the form of a wall or thick foliage. He advised what is in paragraph 4 is additional language that would accommodate that; and his client agrees to put foliage not only where it is on Exhibit B, but also on the east side of the property where the vehicles can be parked. He stated another comment was made as to the continuation and maintenance of the foliage, and it has been plugged into the BDP as well. He stated a further restriction on paragraph 5 says the area can only be used by members of Moose International Affiliate Lodges; the Moose members travel throughout North America; they visit each others sites; they do not camp or put fires outside; and they simply want to park and go inside to socialize. He stated that is what has been done on the property since 1985 and needs to be continued. He stated since the Planning and Zoning Board meeting there is an additional sentence in paragraph 5 that states as follows: “Further, only one visit will be permitted within any 90-day period in addition to the restriction that these affiliate members may only use the property for two consecutive weeks at a time.” He stated it is to discourage any ongoing use of the property; it is meant to be used for visits; and then the members are off doing whatever else they want to during their vacation. He stated it is a review of the BDP and the changes; and he would like to reserve any remaining time of the ten minutes, considering there will quite a few speakers.

Ray Tuttle, past Governor of the Merritt Island Moose Lodge, stated it is important to know the Moose Lodge is not asking to operate a business; but is asking to provide RV accommodations for its guests just as anyone would do for out-of-town guests or family. He stated they want to align themselves with other lodges in the fraternity located throughout the Country that have like resources for use by traveling Moose Lodge members. He stated unlike some of the businesses located near the Moose Lodge on State Road 3 that currently have RV’s on their property, the Moose Lodge has been asked to provide several concessions to have the request submitted favorably for consideration. He advised it is prepared to comply with the stipulations addressed by the North Merritt Island Special District Advisory Board if the request is approved. He noted the Moose Lodge is not an outside entity intruding on the establishment. He stated they are and have been for quite some time members of the community; they practice good citizenship; they are good stewards of the property; and they have shared their resources with the community for over twenty years. He stated history has shown the Moose Lodge does not create an eyesore; it does not raise havoc in the neighborhood or present undue burden to the community; and he wants to thank the Board for its time.

Richard O’Brien stated he is currently a Moose Lodge member; he is fortunate to be on the board; and extra monies after bills are paid at the Moose Lodge go to the community for service projects. He stated there has been a lot of vandalism lately; the compressor units on the walk-in freezers were destroyed; the television was destroyed; and it not only the Moose Lodge. He advised he is a member of the Shrine Center in Melbourne; there is a six-foot fence around the property; and in the last six weeks their pavilion was vandalized. He stated the Brevard Sheriff’s Department has been there every time a report has been filed; and he thought if the RV’s were back, it would be like a neighborhood watch.

Shaye Williams, representing the North Merritt Island Homeowners Association, stated a signed letter from Mark Page was delivered to Commissioner Pritchard’s office; but if not, he would like to distribute copies to the Board. He stated the Moose Lodge is an excellent neighbor; and he embraces having the Moose Lodge on North Merritt Island. He stated the concern is just a zoning issue for them. He stated the three issues they are concerned with are as follows: adjacent property and property values, the aesthetics of an RV park, and the precedence of allowing a change, which would allow an RV park to come into the community. He advised both sides were considered. He stated the North Merritt Island Homeowners Association is an organization that has over 400 members; and the position of the organization is to deny the request. He stated there was an overwhelming negative sentiment towards allowing the RV park to come in. He stated members of the community were against the zoning change, and that was the way the decision went. He stated the biggest concern is the precedent of allowing this type of zoning change to happen in the future; there is more property to be developed in the area; and there are opportunities to bring in another similar type park that would not be maintained by the Moose Lodge. He stated this is a zoning change, not purely stewardship by an organization for a zoning change. He stated once the land has changed its zoning classification, it travels with the property regardless of who owns it.

Commissioner Scarborough inquired if there are certain conditions in a BDP, if incorporated, that would meet with the majority approval that the RV park belongs there; with Mr. Williams responding he cannot answer that question. Commissioner Pritchard stated the letter that was written by Mr. Page says “As in any rezoning, residents are concerned for aesthetics. Many indicated they did not want to see RV’s as they enter their home neighborhood that they work hard to improve and maintain.” He advised the BDP calls for a foliage screening. Mr. Williams stated it was presented well and recognized. Mr. Williams stated he is not saying what the Moose Lodge will or will not do, but when it comes down to a zoning change it is the concerns expressed by the community. Commissioners Pritchard advised it is the concerns expressed by the board of the North Merritt Island Homeowners Association; and the North Merritt Island Special Dependent District voted in favor of it.

Tom Meadows stated he is active in the Moose Lodge; and he is the acting Governor right now. He stated he has traveled from here to Alaska; he stops at every Moose Lodge he can; and it is a home away from home.

Fred Jewett stated he has lived in Merritt Island since 1966; he runs a business there; he owns a home there; and he has dedicated his life to the Moose Lodge. He stated his father was a Baptist minister; he did much good work; and that is why he took over as administrator of the lodge five years ago. He advised he does more than just the Moose Lodge; any charitable person does this; and he does not want recognition for it. He stated the Moose Lodge helps out the Little League teams, Boy Scouts, Girl Scouts, high schools, junior high schools, and homeowners associations. He stated it costs over $300 every time he turns the air conditioner on; and the doors are open all of the time during elections. He stated he gets out early and opens the doors at the lodge for the County so people can vote.

Don Edwards stated he lives in North Merritt Island; he is not a member of the North Merritt Island Moose Lodge; but he is familiar with the Moose organization. He stated the Board needs to consider the request because of all the Moose Lodge puts back into the community and the charitable things it does throughout the country.

Stephen Jamir stated he is Bill Jamir’s son who is the property owner to the east of the Moose Lodge. He advised he is a real estate appraiser, MAI member 7667 of the Appraisal Institute, and is a State certified general appraiser. He stated his main business is government oriented; and he does a lot of litigation, and is familiar with many of the issues. He stated it is his father’s land; it is his retirement land; his father has owned the property since the 1970’s; and lately the grove has not been doing well. He noted he has studied the market for the last five or six years; he has been reading the zoning and Future Land Use Element of Brevard County; and he is trying to see what the options are. He stated he is trying to help his father; and it has been frustrating. He stated he and his father are opposed to the rezoning. He stated if he were to perform an appraisal now on the property, which he cannot because he has a conflict of interest, he would say there would be a 15% value diminution to his father’s property if that property is rezoned to RVP. He stated he understands there are a lot of concessions offered, but it comes back to a legal rezoning. Chair Higgs inquired where is the access to the property; with Mr. Jamir responding his father has an 80-foot access to Smith Road; and has a 66-foot easement. Mr. Jamir stated his father has the dominant easement directly to Courtenay Parkway; and the Moose Lodge is the minority interest holder in the easement. He stated he told his father they should get fee simple entrance to the property off of a commercial road. He stated his father approached the Moose Lodge and the people said they could not talk with him because the decisions are made in Illinois or wherever. He stated he does not think the land problems he is seeing can be buffered. He stated his father was in the middle of trying to sub-divide the property; there have been environmental people on the property doing environmental wetland surveys; and much of it came from his advice to his father.

William Jamir stated his son covered much of what he had in mind to say. He advised he has the 25 acres east of the Moose property; and there were not RV trailers being parked when the property was purchased. He stated all he wants to do is develop the land similar to what Mr. Parrish to the south has done and make 2½-acre lots, sell them, and make a nice community out of it. He stated Mr. Parrish is building quality homes on Smith Road; all he wants to do is the same thing; but he does not see the RV trailers being compatible with what he wants to do.

Dennis Wiltshire stated he lives approximately 4½ miles north of the Barge Canal; he is a member of the Moose Lodge; and he supports its rezoning request. He advised he is a member of the North Merritt Island Homeowners Association; he does not agree with them; and he would like to know what the majority of 400 members indicate. He stated the property was purchased and owned long before the neighbors to the east of the Lodge moved in. He stated everyone was fully aware the Moose Lodge was there; many people have visited the lodge for the last 25 years; and it is disturbing to him that now the people want the Moose Lodge to change to suit the financial gains.

Attorney Richard Torpy advised he is at the meeting on behalf of William Jamir. He stated zoning is always complicated; and it is always a balance of the equities. He stated the Moose Lodge has done many charitable events; and he does not dispute it is a charitable and very good organization. He stated the issue is zoning; and the question is if an RV park can be put in the area. He advised although Mr. Minot did tell the Board that staff made comments, the Board needs to look at its Comp Plan policies. He stated its own staff report says that RVP zoning can only be put in those locations where the surrounding, existing, or planned uses are recreation, mobile home, or tourist related, and where the character of the proposed development is compatible with the existing surrounding uses. He stated staff then says that the particular area of the property is designed as Residential 2 on the Future Land Use Map, designation in this area provides for site built residential uses with planned industrial activity; so in other words it does not qualify. He stated the Board’s own staff report says it is doing it to correct “an illegal use.” He advised the Moose Lodge has illegally been parking campers there for 20-25 years; and it is not a reason for rezoning. He stated the problem with Mr. Jamir’s property is he has had his property for over 20 years. He stated the ten proposed lots do not meet the site plan requirements. He stated the lots are required to be a minimum of 30 feet wide; but on the site plan they are 20 feet wide. He stated there is no buffering at all; Mr. Minot said trees will be planted; but what he says is buffering as available. He stated additionally the North Merritt Island Dependent Special District Board recommended this to the Board on a 4-2 vote, and said the Binding Development Agreement should not run with the land. He noted when the Moose Lodge, leaves the zoning should leave. He stated the North Merritt Island Dependent Special District Board wanted only the Moose Lodge to have that zoning; and that condition is not in the Binding Development Agreement presented to the Board tonight. He stated he has not seen the BDP Mr. Minot distributed to the Board, but the BDP he saw attached to the staff report does not have that; and he did not hear Mr. Minot say it was a change that was made. He stated the problem the Board is faced with is a charitable and equitable organization that wants to create an RV park in an area that the Board’s Comp Plan and Land Use Code do not allow. He stated his client is not saying for the Board not to help the Moose Lodge, but it can not help the Moose Lodge at the expense of the surrounding neighbors. He stated the North Merritt Island Homeowners Association and Mr. Jamir oppose it. He stated a lot of uses go on unchecked for many years and no one complains; but when a complaint is made, staff steps in and fixes the complaint. He stated there is a big difference in the casual parking of RV’s behind a Moose Lodge and the rezoning of land to make a lawful RV park. Mr. Torpy inquired if the Board is willing to change the character of the community by granting a rezoning that will allow the land to be an RV park. He inquired if Mr. Jamir was standing before the Board tonight saying he wanted to rezone the 25 acres to RVP zoning, would the Board it do it. He stated the North Merritt Island Homeowners Association would be ballistic if Mr. Jamir asked to put an RV park there. He requested the Board to uphold its Zoning Regulations and deny the request made by the Moose Lodge.

Commissioner Scarborough stated the accusation has been made that it is not legal to do this rezoning, and inquired if that is correct; with Zoning Official Rick Enos responding that is why the use is under Code Enforcement action. Commissioner Scarborough stated Mr. Torpy said the Board cannot legally zone it RVP. Mr. Enos stated the Board needs to review it according to Section 62-1406 paragraph (6)(C)(2), which is the paragraph Mr. Torpy read to the Board. He stated it says outside of community commercial designation, only those locations where the surrounding existing or planned land uses are recreational, mobile home, or tourist related, and where the character of the proposed development is compatible with existing uses. He stated the Board needs to first make a finding as to whether this area has that character before deciding on whether the RVP can be permitted in the zoning classification. Commissioner Scarborough inquired what criteria does the Board use to have that finding; with Mr. Enos responding there are no written criteria. Mr. Enos stated the statement he read is the criteria by which the Board makes its decision. Assistant County Attorney Eden Bentley advised the Board needs to look at the surrounding land uses, the existing development, and the future proposals. Commissioner Scarborough stated Mr. Enos has looked at the surrounding land uses; he is familiar with the area; and inquired if he will comment. Mr. Enos stated there is an RV park to the southwest, approximately one-half mile is Tingley’s Marina RV Park; there is a mobile home subdivision to the north on the east side of Courtenay Parkway, which is at least a mile away; and those are the two closest mobile home communities. Commissioner Scarborough inquired if they fall within the parameters of establishing the character; with Mr. Enos responding he thinks one of the RV parks is there based upon the interchange that was a location that was permitted for consideration under the rules that were in place at the time; and if the RV park one-half mile away establishes the area, he would have to say no. He stated it is a subjective decision the Board needs to make. Commissioner Scarborough inquired if there is case law regarding this issue; with Ms. Bentley responding she would turn the Board’s attention to Administrative Policy 4 in the beginning of staff comments. She stated it provides additional guidance to the Board. She stated Administrative Policy 4 discusses neighborhood or area shall be a factor for consideration whenever a rezoning or application involving a specific proposed use is reviewed. She stated the character of the area must not be materially or adversely affected by the proposed rezoning or land use application. She stated then it lists criteria to evaluate the character of the area; and it talks about intensity of the traffic, parking, trip generation, and commercial activity that is not already present. She read as follows: “ In determining whether an established residential neighborhood exists the following factors must be present: The area must have clearly established boundaries such as roads, open spaces, rivers, lakes, lagoons, or similar features. Occasional neighborhood commercial uses shall not preclude the existence of an existing residential neighborhood particularly if the commercial use is non-conforming or pre-dates the surrounding residential use. An area shall be presumed not to be primarily residential but shall be deemed transitional where multiple, commercial, industrial, or other non-residential uses have been applied for and approved within the previous five years.

Commissioner Pritchard inquired if Mr. Enos is familiar with the intersections of Grant Road, Smith Road, and Courtenay Parkway; with Mr. Enos responding yes. Commissioner Pritchard stated the property constructed at Smith Road and Courtenay Parkway is a gas station and Subway, on southwest corner of Grant Road and Courtenay Parkway is a Hess Gas Station, across from the Shell Station is a automotive repair; north of that is property the County allowed additional development go on; and on the east side there are other business uses such as Buffkin Tile, and Great Garage Sale. He stated with the exception of the break where DOT has a retention pond, the property is fairly well developed with a variety of commercial activities both on the east and west sides of the street. He stated the request for ten spaces in the back and a vegetated buffer; and he does not see the detriment to the neighborhood. He stated the business automotive repair across the street from the Moose Lodge has a number of vehicles parked in the yard; and he does not see how having an attractive parking of recreation vehicles with a buffer would be diminutive to the property to the east. Mr. Enos stated it depends on a person’s perspective of what the neighborhood is; he does not believe an RV park will damage any of the commercial uses on the frontage; it is arguable it may be incompatible with the future residential uses to the east that are currently zoned agriculture; but that is not the only issue from a pure zoning perspective. He stated the issue is not if it is compatible with the commercial uses on the frontage, but if the area is already developed with recreational mobile home and tourist-related uses.

Rick Torpy stated the property to the east is currently zoned agricultural and designated per the staff report the future site-built residential uses. He stated it has no effect if he sees a motor home behind the Moose Lodge if he is in the Moose Lodge; but it has a dramatic affect if he wanted to build a single-family residence, looked in the backyard, and had motor homes coming and going. He stated the Moose Lodge said it would only be one or two days that each one stays there, but they are constantly coming and going. He inquired if the Board would want that in its back yard. Commissioner Scarborough stated Mr. Torpy made a statement that the Board can not legally consider the rezoning request. Mr. Torpy stated the staff report reads as follows “Outside of community commercial and neighborhood commercial Future Land Use Map designations, only those locations where the surrounding existing or planned land uses are recreational, mobile home or tourist related, and the current surrounding uses are site-built residential with planned industrial activity.” He stated according to the Comp Plan Policy cited by staff, the Board cannot legally consider the request.

Chair Higgs stated there is PIP across the street, PIP to the north and by the Moose Lodge, yet the residential is coming into the Courtney Parkway area; and inquired why the PIP or community commercial is consistent along the area; with Zoning Official Rick Enos responding it is based largely upon the developed patterns in there. Mr. Enos stated those uses that did not develop industrially over the years would change back to non-industrial land use designations. He stated some of the lands on the frontage that are designated planned industrial were zoned industrial years ago and have been rezoned to planned industrial; and it is just because of how the mix of uses has developed over the years. Planner Todd Corwin stated some of the property, at the request of the property owners, was changed from planned industrial to residential several years ago; and when some administrative rezonings were occurring to make the area consistent with the Comprehensive Plan there were citizens along Smith Road who approached the Board and requested their property go from PIP to a residential designation. Chair Higgs inquired if that would be the properties north of the Moose Lodge; with Mr. Corwin responding just north of Smith Road. Chair Higgs inquired if that was part of the whole North Merritt Island Study done by the County several years ago; with Mr. Corwin responding in a sense because the administrative rezonings that occurred in 2000 were the last step of that process. Mr. Corwin stated in the North Merritt Island Small Area Study the biggest changes recommended were the residential densities within the area, which reduced those based upon hurricane evacuation concerns. He stated the frontage portion along North Courtenay Parkway was referred to at the North Courtenay Parkway Citizen Resource group, which met for several years and is not meeting again. He stated in the year 2000 North Merritt Island was the last area to receive the administrative rezonings to bring properties into compliance with the Comprehensive Plan; and as part of that process, when the advertisements went out, there were some citizens who owned property designated PIP in the area who indicated they would rather have it used for residential purposes and there were some changes made in the Smith Road area based on the requests of those citizens.

Chair Higgs stated there is a provision in the Code on the diminishment of property; and inquired if it applies to the 15% the appraiser referenced; with Assistant County Attorney Eden Bentley responding Mr. Jamir did not actually appraise it.

Commissioner Pritchard stated one of the things he finds interesting is the transitional effect taking place, and the businesses that front Courtenay Parkway also back up to agricultural. He noted there are ten RV spaces at the rear of the Moose Lodge; it spent $14,000 on a septic system, did other work, and then found out there was a zoning problem, that is coupled with the landscape vegetation and the nature of the neighborhood, and he does not see the harm in having the zoning change approved.

Mike Minot stated Mr. Torpy mentioned in Attachment B to the Binding Development Plan there was a proposed area for the ten sites; he took a second look at it; and it does have one place where it indicates those sites may be 20 feet in width. He stated in the event it is somehow inconsistent with the Land Development Regulations, it says in paragraph 2 of the Binding Development Plan that no restrictions as mentioned here shall not prevent the developer/owner from complying with all minimum requirements as set forth in the Brevard County Land Development Regulations. Mr. Minot stated there is no attempt by the Moose Lodge to skirt any regulations; so if there is some designation that happened to be inconsistent, it is overcome by what the document actually says. He stated as to the location criteria, the Board can consider the application tonight; what Mr. Enos says is a subjective decision by the Board; and it can take the totality of all of the uses that are surrounding, and the location of what has been identified as recreational mobile home and tourist related uses that are in the area to determine if it is legal. He stated according to the aerial photograph, Tingley’s Marina is located in the bottom left hand corner near the intersection of the Beeline and North Courtenay Parkway. He stated in the area are the RV park, a marina, and the office, which sells and caters to tourists. He stated as far as the individual uses in between, there are not many uses. He stated coming over the Barge Canal Bridge there is an elevation change going over the bridge to the north so a person has to decline coming off of the bridge; as a person comes off the decline the first intersection is a few hundred feet to the south of where the subject property is located; so from a distance it may a half mile to go to Tingley’s Marina, but as far as intervening uses there is nothing in between. He stated the Beeline corridor is used by people from Orange County to access the beaches, boats at Port Canaveral, cruises; and from that standpoint, a majority of the traffic is tourist related. He stated the subject property is not far from the Beeline Expressway.

Ms. Bentley stated tourist related is not specifically defined, but there is a TU-1 zoning classification, which discusses general tourist commercial zoning. She stated it talks about permitted uses for tourist related activities as follows: art galleries, libraries, museums, hotels, motels, parks, public recreational facilities, public or private clubs and lodges, restaurants, sale of alcoholic beverages package only, and single family residence. Mr. Minot stated borrowing from Ms. Bentley’s comments, immediately adjacent to the subject property is the Moose Lodge; they are now two separate parcels because the RVP site is 5 acres that does not include the Lodge building; so the immediate adjacent parcel qualifies under the listed uses of TU-1. He stated in reading the location criteria, it speaks of existing surrounding uses, so the existing surrounding use of Mr. Jamir’s property is an orange grove; and immediately east of where the RV sites would be is property that could not be developed as a result of an open water area.

Chair Higgs advised Mr. Minot did come to her office and discussed the plan with her. She requested Mr. Minot address the issue of the use of RV’s remaining with the Moose Lodge as the Lodge ownership; with Mr. Minot responding it is addressed in paragraph 5 of the proposed binding development plan. He stated it indicates in that paragraph that the Moose Lodge members from Moose International Affiliate Lodges will be the only persons authorized to use the spaces; they shall be limited for two consecutive weeks; and no visits shall be permitted more than once within a 90-day period. He advised in the event, because of the restriction in the binding development plan that travels with the land, there is a change of title to the subject property, the binding development plan continues. He stated the spaces can never be used by anyone other than Moose Lodge members.

Commissioner Scarborough stated he had problems with what Mr. Torpy said; he asked Ms. Bentley if a gas station is tourist related; and he thought one gas station could be tourist related and another may not. He stated there is a corridor from the Orlando Airport to Port Canaveral; anyone making the trip will travel the road; it would be difficult to not consider a tourist relationship; and he will support the motion by Commissioner Pritchard.

Commissioner Carlson stated her concern has to do with the vested rights determination the Board made to deny vesting for the State permit the Moose Lodge had gotten. She inquired if the Board approved the item, would it be a conflict of interest since it had previously denied vested rights; with Ms. Bentley responding it is an whole different set of procedures. Ms. Bentley stated it would be changing the zoning on the property; previously the use was not consistent with the zoning; but if the Board changes the zoning so the use would be consistent, it is another set of circumstances. Ms. Bentley advised it should be treated as the Board treats any other zoning request; the vested rights is a completely separate issue; and the Board has made its decision.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to approve Item IV.D.1 with amended Binding Development Plan to add a two-week maximum stay provision with only one visit within a 90-day period, to stipulate that red cedar trees will be planted 15 feet apart and additional buffering on the east side of the property, and to exclude that portion of the property north of the Moose Lodge building from being used for RV sites.

Chair Higgs advised she has difficulty with the Policy 62-1406 paragraph (6)(C)(2) and if it will be consistent with the item. She stated looking at the Code, it seems it is outside of the community or neighborhood commercial zoning; it is an area surrounded by PIP on most sides; and there is residential or AU on the rear of the property. She stated she would like to support the Moose Lodge, but her commitment is to what she would believe is a proper interpretation of the Code; and it does not seem the planned land use is existing there. She stated perhaps the future land use of the Moose Lodge is incorrect; but it does not meet the standard she applies to it so she is voting against the motion.

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

RESOLUTION, RE: APPROVING FINDINGS OF FACT FOR SAWGRASS SOUTH AT
SUNTREE

Chair Higgs requested Assistant County Attorney Eden Bentley explain the item. Ms. Bentley advised the changes are highlighted in the copy sent to the Board. Chair Higgs inquired if there are questions.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to adopt Resolution approving Findings of Fact for Sawgrass South at Suntree. Motion carried and ordered. Commissioner Pritchard voted nay.

Commissioner Pritchard advised the reason he voted nay on the Resolution is because in the conclusion it says “Based on the foregoing, the Board of County Commissioners hereby finds that the proposed project would adversely impact and damage habitat.” He stated he has disagreed with that from the start, so he will continue to disagree with that conclusion.

By motion and vote, the meeting adjourned at 7:15 p.m.

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

______________________
SCOTT ELLIS, CLERK

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