January 21, 2003

The Board of County Commissioners of Brevard County, Florida, met in regular session on January 21, 2003, at 5:30 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairperson Jackie Colon, Commissioners Truman Scarborough, Ron Pritchard, Nancy Higgs, and Susan Carlson, Assistant County Manager Peggy Busacca, and Assistant County Attorney Eden Bentley.

The Invocation was given by Pastor Johnnie Gilbert, Northwest Baptist Church, Cocoa and Chaplain of the Cocoa Fire Department.

Commissioner Susan Carlson led the assembly in the Pledge of Allegiance.

ITEMS PULLED FROM AGENDA

Assistant County Manager Peggy Busacca requested Items III.A, Lease with BellSouth for Network Security Equipment and V.B., Approve Initial Emergency Repairs, Grant Permission to Bid and Award Bid for Permanent Repairs for Electrical Room in Shredder Facility at the Central Disposal Facility, be withdrawn as additional information is required for both items.

The Board withdrew Items III.A. and V.B from the Agenda.

RESOLUTION, RE: COMMENDING THE REBELS FASTPITCH SOFTBALL TEAM

Commissioner Carlson read aloud a resolution commending the Rebels Fastpitch Softball Team.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to adopt Resolution commending the Rebels Fastpitch Softball Team for its outstanding season and World Championship Title. Motion carried and ordered unanimously.

Commissioner Carlson presented the Resolution to the team and coaches.

The team coach thanked the Board for the Resolution; stated he has been in fasthpitch softball for fifteen years; and this is the finest team he has ever been associated with. He stated they are not only fine athletes, but also fine ladies.

RESOLUTION, RE: COMMENDING MICHAEL GRUBE

Commissioner Carlson read aloud a resolution commending Michael Grube for his achievement of the Eagle Scout rank and outlining his other achievements.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to adopt a Resolution commending Michael Grube for his achievement of the rank of Eagle Scout. Motion carried and ordered unanimously.

Commissioner Carlson presented the Resolution to Mr. Grube. Mr. Grube described his project, which involved planning and designing a memorial garden and volleyball court at the Cocoa Presbyterian Church in Cocoa.

DISCUSSION, RE: SPEAKERS FOR AZAN TEMPLE

Chairperson Colon inquired if Commissioner Carlson wants to address the people who wish to speak on February 6, 2003. Commissioner Carlson stated this is concerning the Azan Temple property; and unless any Commissioner has a reason for them going early, the Board should stick to the standard procedure. She advised there is a hardship with the Shriner’s meeting time; and inquired what is the pleasure of the Board. She inquired if there is an issue in terms of the process; with Assistant County Attorney Eden Bentley responding there is no procedural due process issue. Commissioner Carlson stated she does not want to set a precedent unless the Board sees a reason to do that. Assistant County Manager Peggy Busacca stated the item could be tabled from a night meeting to a day meeting, which would keep the Board from setting the precedent of a time certain, but allow the Shriners not to have a conflict. Commissioner Carlson stated she would choose to do that; and inquired what action should be taken; with Ms. Bentley responding the action would need to be taken at the February 6, 2003 zoning meeting. Ms. Busacca stated staff could advise the Shriners that the Board would consider the item at that time.

Chairperson Colon stated staff will notify the Azan Temple that the item can be moved to a day meeting Agenda; with Ms. Busacca responding yes, as there will always be a conflict between the two meetings. Commissioner Higgs noted the Shriners have been here before for zoning meetings, but she is comfortable with the change.

CONTRACT WITH ING RELIASTAR, RE: RENEWAL OF STOP LOSS INSURANCE
COVERAGE

Assistant County Manager Peggy Busacca stated if the Board has any questions, Jerry Vesco is present to respond.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to authorize renewal of Contract with ING Reliastar for Stop Loss Insurance coverage effective January 1, 2003. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RECOMMENDATIONS OF PLANNING AND ZONING BOARD OF
JULY 8, OCTOBER 7, AND NOVEMBER 14, 2002

Chairperson Colon called for the public hearing to consider the recommendations of the Planning and Zoning Board, made at its July 8, October 7, and November 14, 2002 meetings, as follows:

Item 3. (Z0210302) Old Catholic Church in America’s request for CUP for a Church in an SR zone removing the existing CUP for a Residential Social Service Facility on 1.57 acres located on the southwest corner of Florida Avenue and Dairy Road, which was recommended for approval by the P&Z Board.

Chairperson Colon inquired if Assistant County Attorney Eden Bentley was able to speak with someone from the Old Catholic Church; with Ms. Bentley responding she did not, and does not know the intentions at this point. Commissioner Higgs stated if the title issue is discussed it will take some time; and recommended the item be heard in regular order.

Item 1. (Z0207203) George W. and Stella M. Lewis and Irving A. and Alice S. Bubek and Panorama Mobile Home Park, Inc.’s request for change from BU-1 with a BCP and CUP’s for Professional Offices and a Sewer Facility, and RU-1-11 to RU-2-15, removing the existing BCP and the two CUPs on 9.21± acres located on the east side of South Tropical Trail north of Platt Avenue, which was sent to the Board with no recommendation from the P&Z Board.

Attorney Richard Amari, representing the applicants, submitted a colorized rendition of the proposed project; and stated this item was tabled from several prior meetings. He stated the property consists of two parcels; 6.8 acres are currently owned by Panorama Mobile Home Park, which is the northern portion of the property; and the southern 2.55 acres are under contract from George and Stella Lewis and Irving and Alice Bubek to provide open space. He stated the northernmost portion is currently permitted and operated as a mobile home park with 71 trailer spaces, although there are State permits for 81; the property is in the Merritt Island Redevelopment Agency area; and it also is a property that is severely blighted, with slum conditions and nonconforming uses. He stated the current zoning of the property is a mix of RU-1-11 and BU-1 with CUP’s that they wish to remove; the property is bordered to the north by an FP&L substation and the Heart of Merritt condominiums; to the east is South Courtenay Parkway; and across the street are commercial parcels. He stated it is bordered to the west by South Tropical Trail, and is across the street from Indian River Apartments, the Masonic Lodge, and the Bello Rio condominiums; and it is bordered on the south by vacant unimproved land with the exception of the property the County owns that is a drainage retention facility. He stated they filed an application asking the Board to consider rezoning to RU-2-15 that would allow them to redevelop the existing trailer park, which has 71 spaces, to an upscale apartment project with 132 units. He stated the application was filed in May of last year and was heard by the Redevelopment Agency, which unanimously recommended approval on May 23, 2002; it went to the Planning and Zoning Board on July 8, and resulted in a split decision; and it came to the Board with no recommendation. He stated the only issue of controversy was school capacity; and there was never any objection to the proposed project, which by all traditional zoning standards, is the type of project one would like to see. He stated the only snag was the
County’s policy on school capacity; it was scheduled for a hearing before the Board on August 1, but had to be rescheduled to September 5 to allow some issues to be worked out; and at that hearing, rezoning and redevelopment of this area was discussed, with the only issue raised being school capacity. He stated they presented a report from Fran Pickett, who also provided expert testimony regarding school capacity; the report said although Tropical Elementary and Merritt Island High School are currently under capacity according to School Board records, there are currently funded but not yet constructed improvements for Tropical Elementary School, which will raise the capacity to 1,009; and those improvements are slated for completion in July 2003. He stated they expect to add approximately 12 students to Tropical Elementary School, which would increase the enrollment to 858, well below the planned capacity; and Jefferson Junior High School is not a problem as they will only be adding approximately four students, bringing the enrollment to 538, which is well below the current capacity of 733. He stated Merritt Island High School is a little confusing; they are currently under capacity at the school; the School Board handled the capacity issue at Merritt Island High School by making Edgewood Junior High School a senior/junior high school of choice; they have reserve capacity for 440 Merritt Island students; so after implementation of that program, which begins in the summer, the expected enrollment at Merritt Island High School will decrease to 1,508, which is below the capacity of 1,589. He stated capacity should not be a problem, but is a problem technically because the Board’s policy only looks at capacity today, and does not look at funded capacity that is not yet constructed. He stated in September, the Board tabled the matter to consider the policy issue; an Agenda Report was provided by the Planning and Zoning staff, which suggested the Board might want to consider allowing funded, but not yet constructed improvements to be the same as available capacity; and the report pointed out it is similar to how the County handles other capacity issues such as traffic or road infrastructure concurrency issues. He stated if there is a road that has an unacceptable level of service creating a road concurrency problem, the Board will allow consideration of the constructed improvement to the road for purposes of concurrency requirements if there is a funded approved construction project; and it makes sense to adopt the same policy for school capacity. He noted it is the same method that Orange County uses when it considers school capacity issues; however, at the meeting, the Board expressed concern on the pending referendum on class sizes; and based on that uncertainty, the Board chose not to change its policy. He requested the Board allow the rezoning; stated the property is built out with 71 trailer spaces; they are all old dilapidated trailers; and there are slum and blight conditions. He stated rezoning of the property will eliminate the trailer park, replacing it with an upscale apartment complex complete with club house, pool, exercise trail, station and facilities, dog walks, playgrounds, and fishing ponds; and it will preserve a large wetland area that is at the southernmost property being incorporated for open space purposes. He stated this is a beautiful rezoning; it is the type of rezoning that anybody would want except for the issue on school capacity; and Policy 11.2 of the Comprehensive Plan provides that redevelopment districts may receive special attention and flexibility in order to assure the elimination of factors contributing to economic debilitation. He stated he has a proposition for the Board’s consideration; if it applies the school capacity policy it adopted and stood steadfast to, it will have to deny the rezoning request this evening; but if it would consider adopting a policy that will consider funded capacity the same as available capacity for approved redevelopment projects in the Merritt Island Redevelopment area, that will reconcile the school capacity Comprehensive Land Use Plan with the Redevelopment Land Use Plan, and accomplish the goals of both without creating any bad precedent for the County. He stated he is a realist; there is a possibility the Board may find it difficult to go with his suggestion; and if that is the case, he would like the Board to consider an alternative, which is shown in his second handout. He stated the portion of property owned by the Panorama Mobile Home Park is 6.93 acres; the Board has the ability too allow a lesser density zoning than what was requested; and if the Board is going to deny the request, he would request it consider rezoning the property described as Panorama Mobile Home Park, which is currently zoned RU-1-11, to RA-2-10, allowing ten units to the acre. He stated that would give 68 units on the lot, which is less than the 71 that are currently there, so it avoids the school capacity problem. He stated that will not really solve their problem or make their redevelopment project successful as they would like; but if they are going to be stuck with a nonconforming use, RA-2-10 is a better zoning and provides some flexibility to do something with the property. He stated that is not the zoning they would prefer; they would like to see development of the property in the manner suggested; and requested the Board consider adoption of the policy as he suggested.

Commissioner Pritchard inquired how long it would take to construct the project and how long will the expansion at Tropical Elementary take; with Mr. Amari responding it is expected to take 14 to 20 months for complete construction of 132 apartment units; and the expansion at Tropical Elementary is expected to be complete in July 2003.

Gary Edinger stated his corporation owns the property in question; nobody likes to hear their property described as blighted, but in this case it is a useful description; they have been trying to develop this property for some time; and they are excited with the project they have before the Board. He stated their research shows this is something that is not only economically viable, but something that would be profitable to develop; and it also serves the needs of Merritt Island. He stated Merritt Island has some nice high end homes and some that are not so nice, but not much in the middle for the working class family; and this kind of development would be useful specifically for that. He stated they appreciate the difficulty the Board has with the school capacity issue; and they hope they have been able to address the issue through Ms. Pickett’s report and Mr. Amari’s explanation of how it is possible to reconcile the two policies in the Comprehensive Plan.

Commissioner Pritchard stated he was given a good briefing on the project, has seen the current use of the property, and supports doing something with it; it falls within the Merritt Island Redevelopment Agency area, which has as its goal to improve the blighted areas; rejuvenation of areas requiring revitalization was also one of his issues when he was on the campaign trail; and this is definitely such an area. He stated it is a good project; and the issue is about school capacity. He stated the Board needs to consider a policy that looks at funded expansions of schools as if they were available classrooms, especially in this case when the expansion of Tropical Elementary is supposed to be done in July 2003 and the project will take 14 to 20 months. He stated there is not going to be a problem with the school capacity issue because the construction of the units will not even be one-third done by the time room is available at Tropical Elementary; and recommended supporting the request for RU-2-15 zoning. Commissioner Carlson stated Mr. Amari said Orange County uses the funded capacity equation; and inquired if that is the case; with Ms. Bentley responding she has not seen the exact language, but the Board’s Comprehensive Plan would need to discuss it, and current does not.

Commissioner Scarborough stated he knows Ms. Bentley does not like to have things with a condition precedent; but this has been coming back; and once there is school concurrency, they could come in with no problem. Ms. Bentley inquired if Commissioner Scarborough means they could come in on the balance of the property; with Commissioner Scarborough responding if Mr. Amari withdrew his request today and waited for the school to be completed, he could come in and have no other problems. Commissioner Scarborough inquired if it would be conceivable to pass something with a condition precedent that the zoning takes place upon an event that is beyond the control of Mr. Amari or the Board, such as the completion of the school; with Ms. Bentley responding she has not recommended that in the past because the Board is supposed to be applying the policies that are in place at the time of the zoning.

Commissioner Higgs stated Merritt Island High School is overcrowded as well as Tropical Elementary, so it is not just the construction at Tropical Elementary that would fly in the face of the Comprehensive Plan.

Chairperson Colon stated some of the numbers given by Ms. Pickett indicated that as an addition to the school; but representatives from the School Board made it perfectly clear that Tropical Elementary was going to be at full capacity. She stated they were talking about portables and the fact that portables had to be replaced throughout the County. Commissioner Carlson stated that was how they defined permanent capacity; and the Board debated that a couple of meetings ago because of the way the School Board would look at permanent capacity relative to the hardening of portables, which does not give the school additional capacity, but from a capital perspective, it would.

Commissioner Pritchard stated the discussion about the number of students does not jibe with what Mr. Amari said; and requested Mr. Amari go through the numbers again. Mr. Amari stated there is some confusion in the minds of the Commissioners on this issue; Ms. Pickett’s numbers agree with staff’s numbers and the School Board numbers; the capacity at Tropical Elementary is 1,009 with the improvements; and Mr. Curry with the School Board confirmed that number. He stated the current enrollment with the addition of 11.6 students would be 858, which is well below the projected capacity once the improvement is constructed. Commissioner Carlson stated that is based on the definition of permanent capacity changing after the hardening of the portables; with Mr. Amari responding no, it is permanent capacity and does not include portables. Commissioner Carlson inquired if they are actually adding to the school; with Mr. Amari responding yes, this is the constructed addition to the school for permanent capacity.

Commissioner Higgs inquired if Mr. Amari would like to speak to Merritt Island High School. Mr. Amari stated the way the School Board addressed the overcrowding at Merritt Island High School was to transfer students to Edgewood Junior High School, which is a school of choice with reserved permanent capacity of 440 students from Merritt Island High School. Commissioner Higgs stated she is familiar with that, but that number may or may not be achieved depending on what students apply, because it is a school of choice; and the number 1000 is reservation, but not a mandatory number. Mr. Amari stated it is not mandatory; the School Board has the ability to look and determine how many children from the Merritt Island area will voluntarily sign up at Edgewood, since it is going to be a school of choice; and the idea is that they are going to create more demand than there is going to be available space, so there should not be a problem with the 440 students wanting to go to Edgewood. He stated if what happens in practice is not what happens in theory, then there is the ability to redistrict to shift those students from Merritt Island High School to Edgewood; but the idea is that it will be a school of choice and that students will prefer Edgewood over Merritt Island High School. Commissioner Higgs stated she is not sure the number 400 will be achieved the first year, and that is a number over time; with Mr. Amari responding it is 110 students per year, phased in over a four-year period. Commissioner Higgs stated it would be inaccurate to say that would occur in year one. Mr. Amari advised it will not occur in year one; and Ms. Pickett’s report shows that the capacity now with the portables is sufficient to handle the capacity and that when phased in fully, the portables will go away and the permanent capacity will be sufficient to hold the enrollment that is expected for that period of time, so that it does not create an overcapacity problem for the high school. Commissioner Higgs stated that is the theory; with Mr. Amari advising there is a lot of theory in all of this; and they can only use the numbers that are given to them by the School Board and hope the targets are correct.

Commissioner Pritchard inquired if they cannot rely on the numbers provided by the School Board, what can they rely on; and does Mr. Amari have a figure for the number of students at the proposed project per school. Mr. Amari responded the School Board has a formula; it says for particular type projects, there are certain numbers that it can be expected to add; and the total number of students the project is expected to add is 22, with 11.6 at Tropical Elementary, 4.04 to Jefferson, and 6.29 to Merritt Island High School.

Commissioner Scarborough inquired if everything is going to be copacetic in a few months, why does the applicant not withdraw and bring it back once the problems are resolved. Mr. Amari stated the rest of the economy does not keep track with what is going on politically; there are contracts pending with the developer and the property owner; that is talking about waiting six months to see if there is capacity; and in six months, the contracts will not be there. He stated the developer is interesting in committing to a total project cost of $8,600,000, and financing is in place. Commissioner Scarborough stated even if Ms. Bentley said it was okay to do a condition precedent, it would not have worked for the applicant because he would not have had the rezoning; with Mr. Amari advising no lender would provide financing on a project that may or may not happen.

Commissioner Pritchard reiterated his support for request for rezoning, the timetable in terms of expansion of the school, and development of the project. He stated this is within the Redevelopment District; it is not going to set precedent Countywide; the Board has the ability to give it special attention and flexibility; and that is what it should do. He stated if the Board does not move now, it would be faced with not having any project; an $8.6 million project would have an estimated assessed taxable value of $6.9 million, and the ad valorem tax would be approximately $139,000; so there is a monetary consideration for the County, School Board and other agencies. He stated it is a good project and it makes sense to move with it; Tropical Elementary is in the process of expansion; and 22 more students will not affect the schools, as they will be able to absorb the additional students because of the expansion.

Motion by Commissioner Pritchard, to approve Item 1 as recommended. Motion died for lack of a second.

Commissioner Carlson inquired if RA-2-10 would have any impact on school overcrowding; with Mr. Amari responding there would be fewer units than the trailer park has, so it would not create a school capacity issue. Mr. Amari advised it is his understanding the advertisement is not an issue because it is a lesser zoning than what has been advertised; with Ms. Bentley agreeing.

Commissioner Higgs inquired if the Board could consider a division of the parcel that is being proposed; with Ms. Bentley responding the Board can do both in light of the fact that the applicant brought it up and addressed it.

Commissioner Carlson stated this is a good project; she supports redevelopment projects; and the Board is grappling with the overcrowding issue.

Motion by Commissioner Carlson, seconded for discussion by Commissioner Pritchard, to approve RA-2-10 on portion of property with the legal description of Panorama Mobile Park property.

Commissioner Pritchard inquired if it was rezoned to RA-2-10, would this still be a viable project; with Mr. Amari responding the apartment project would not happen because the economics do not work with 69 units. Commissioner Pritchard inquired if there would be a townhouse project; with Mr. Amari responding it could perhaps be a townhouse project; but there are no assurances they can make that work. Mr. Amari stated they do not know with RA-2-10 if it can be a viable project; they knew with RU-2-15 they could do the apartment project; but they know it is better to have RA-2-10 than to have the current zoning as it is more flexible. He stated if they are going down in flames on the RU-2-15 request, they would request consideration of the RA-2-10, but he cannot say tonight the redevelopment will happen under that zoning because he does not know; but they would prefer that zoning to the existing zoning. Commissioner Pritchard inquired if the entire issue is one of school concurrency or overcrowding. Commissioner Higgs advised is it not concurrency because the County does not have that ordinance; and it is an issue of consistency with the Comprehensive Plan.

Commissioner Scarborough stated it would be naïve on the Board’s part to assume it knows enough about education although a lot is being written and said throughout government; and it can make the job of those people who are trying to solve school problems more difficult if it does not understand the impact of putting children in schools where there is no room. He stated the issue of school overcrowding involves school districting, freedom of choice, and all those things; but the Board should not play a role in inflicting problems on those with limited resources. He stated it seems easy in this case; but the problem is the Board never knows subsequently where it may appear differently; and provided an example concerning buffer zones around residential areas. He stated the Board should always be reticent about saying yes in a particular situation without understanding the full impact; this is a very profound problem; people look to the Board to act responsibly in its relationships with other agencies that are also spending tax money; and the Board can make disruptive actions through zoning. He stated this is a good project; and he does not think anyone denies that.

Commissioner Pritchard stated he considers the action he was proposing to be responsible because the number of students and the number of seats available were going to be there for the construction underway; it is not his intent to bring about a burden; but it is his intent to utilize the facility properly. He stated apparently Tropical Elementary has recognized the need to expand its facilities going into hardened classrooms so much that it took out a Little League field to do it; it is going to provide a classroom facility for art, music, and other curriculum; that is why he took the position he did; and he still believes in that. He stated Mr. Amari has provided a compromise with RA-2-10; and being that he offered that, he seconded the motion.

Chairperson Colon called for a vote on the motion. Motion carried and ordered unanimously.

Commissioner Carlson stated she has a question in terms of funding capacity and the discussion that was brought up; Ms. Bentley said they went through the Comprehensive Plan process and put in new language; but the Board did not talk about the funding capacity versus the permanent capacity, and looking at funded projects is part of the definition of permanent capacity. She stated in all the time they talked about overcrowding, they have been protecting the School Board from itself; and it is doing this because it does not want to burden the School Board with having to deal with overcrowded schools. She stated education is a huge issue; and she would like to see Mr. Curry from the School Board working with Ms. Busacca to come back with a written description of how this is going to occur, if there is going to be capacity in the future, the timing at which it is going to exist, and whether it will be new space and not just hardening of portables. She stated she would like to see some sort of addition to the zoning packet on those items that have overcrowding to give a better understanding of whether it is truly not in the best interest to pass such rezoning or if there is no problem because capacity is already funded and will occur sometime in the future. Assistant County Manager Peggy Busacca stated the Board has discussed whether or not it wanted to consider funded but not constructed school capacity; at that time the Board decided it did not want to change its policy; and if the Board would like to reconsider that, it can be put on the Agenda. She stated she is certain staff can get a written description of when additional capacity is planned or programmed if it exists for the certain school; but based on the Board’s previous discussions about capacity, she does not know if that would change anything as far as the Board’s policy. Commissioner Carlson inquired if this would be worthy of conversation or does the Board want to stick to its current policy; and stated obviously it is going to be denying every rezoning that comes in as it has legitimate grounds to do that. She inquired if there is an opportunity to say a school is not going to be overcrowded at some point in the future, and at what point does the Board want to get the information from the School Board that proves that is the case. She inquired should the Board wait until it is bricks and mortar on the ground and deny everything up to that point; and stated there needs to be additional discussion on that.

Commissioner Pritchard stated he agrees with Commissioner Carlson; this is something that needs further discussion. He stated when someone is operating a business, he plans ahead and looks at measurable performance measures; and the Board needs to look at the funded improvements and the timelines for that to better decide how to manage growth in the County. He stated growth is inevitable, but the County does not want explosive growth; and it wants to have managed growth. He stated Mr. Amari had financing, contractors, and a lot of other people lined up; that is the way a business operates; there is a certain profit motive there; and there is a certain responsibility to the community, which the Board participates in. He stated the Board needs to be as effective in planning as the businesses are when looking at a project and the viability of the project, in addition to the issue of funded improvements. He stated he would like to understand why the School Board does not recognize portable classrooms as classrooms as they are capable of housing students, teachers, and providing an education, regardless of the construction materials. Chairperson Colon stated that is not coming from the School Board, but from the State; and they have to replace their portables.

Commissioner Carlson stated when the school was built, it was based on the capacity the infrastructure could provide; the portables are above and beyond that infrastructure; so by hardening the portables, it starts to limit the infrastructure. She stated it puts more pressure on the infrastructure as they are not adding cafeteria space or space for guidance counselors, etc.; the permanent capacity question is always up in the air; and the question is how to justify that without building onto the school and making it larger to accommodate the additional classrooms that are now being hardened. She stated it is a State issue; but in terms of how they are defined as permanent versus not permanent is another question; and suggested getting an administrative time line so staff can tell someone coming forward the item is not going to pass because it does not meet the school overcrowding policy and it does not have to come to the Board for denial. She stated saying no administratively would save people time, money, and hardship.

Commissioner Scarborough stated there was a Constitutional change dealing with school size; because of that, there has been a lot of rhetoric; and the School Board is trying to figure what it is doing. He stated the role the Board plays is minimal in the whole discussion; but it does need to play a role with fellow elected officials in helping the School Board achieve quality education. He stated in the interim, actions of the Board to make classroom crowding an additional problem is not in the mutual benefit of the bodies or the taxpayers of the County. He stated this conversation could better take place after the School Board is prepared to decide its role after hearing from the State; and recommended deferring. He stated he knows Mr. Amari and his investors find this to be inconvenient; but it is difficult to say Mr. Amari can go ahead, and perhaps the next developer can go ahead, and then all of a sudden what the Board has may not be what it wants; and that could be very dangerous for the fragile process for quality of education.

Commissioner Carlson inquired in terms of administrative time lines and things, since it is in the Comprehensive Plan and the Board has a policy in terms of overcrowding, what would stop staff from saying it could not put an item on the agenda because it does not meet the overcrowding requirements. Ms. Bentley responded staff does advise of the issue; but if someone insists on paying the fee, they cannot say they will not accept it.

Chairperson Colon stated this issue has been going on for approximately a year; the School Board members are facing a lot of issues because the State is cracking down on school capacity issues; and it has been sent back to local government to figure it out and put something together by March. She stated the School Board would be happy to meet with the municipalities, but the summit in the fall may be too late. She stated this is something the School Board is dealing with; the Board does not want to put a burden on them by having development going up without being sensitive to this; and inquired if the Board is requesting a report or leaving it alone for now.

Item 2. (Z0207401) Brevard County Board of County Commissioners, on its own motion, authorized administrative rezoning on property owned by Irene Charamut, Trustee, to change from BU-1 and BU-2 to all BU-1 on 1.66 acres located on the west side of US 1, south of Allen Hill Avenue, which was recommended for denial by the P&Z Board.

Attorney Ken Crooks, representing the property owner, the Charamut family, stated the item has been up many times previously; and his partner, Leonard Spielvogel has spoken on it before. He advised in August of 1987, the property was rezoned from GU and RU-2-10 to part BU-1 and part BU-2, which is the current zoning; in July 2002 the Board decided to administratively rezone the property to eliminate the BU-2 and take it to BU-1; and it was supposedly based on Comprehensive Plan Policy 15.1, which says the County can initiate administrative actions which are appropriate, including administrative rezonings. He stated this procedure does not comply with the standards or procedure set forth in Policy 15.2 through 15.5; if BU-2 is inconsistent with the Comprehensive Plan now, it was inconsistent in 1987 when the Board voted to make part of the property BU-2; and nothing in the Zoning laws have changed since 1987 that would justify this rezoning. He stated the owner objected to the rezoning, and continued to object because it will have a serious adverse impact on the value of the property; and if it is allowed to be rezoned, no one’s zoning will be safe from having the Board change it at anytime for whatever reason, whether anyone wants it or not. He stated they have talked about this a lot; documents have been submitted to the Board; they have had the opportunity to talk to several of the Commissioners; and requested the item be denied.

Commissioner Carlson stated she met with the owners who mentioned the reason they want to keep BU-2 is so when they retire they can put storage units on the property; and BU-2 is the only zoning that allows that.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to deny Item 2 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 3. (Z0210302) Old Catholic Church in America’s request for CUP for a Church in an SR zone removing the existing CUP for a Residential Social Service Facility on 1.57 acres located on the southwest corner of Florida Avenue and Dairy Road, which was recommended for approval by the P&Z Board.

Chairperson Colon requested Ms. Bentley advise of the status of the item. Ms. Bentley stated at the last Board meeting, the issue of the applicant’s title to the property was raised; there was a question concerning Old Catholic Church of America and Old Catholic Church in America; Code requires the Board to have some evidence of title before applying for rezoning; typically staff does not do a title search; however, in this case, the title issue came before the Board. She stated the applicant had a corrective deed issued from the original grantor; but in her opinion that is not adequate to clear the title problem, although in Mr. Torpy’s opinion, it is adequate to clear it. She stated it is necessary to go to a judge to get the issue straightened out if there is a serious issue with the third-party entity corporation involved; but the Board has flexibility and may proceed, decline to proceed because of the title issue, or table the item and provide written notice to the third-party entity involved that a rezoning has been filed. She noted if the Board declines to proceed, it could subject itself to claims of damages if Mr. Torpy is correct about the title. She advised tabling would allow Mr. Torpy time to get a quit claim deed or joinder from the third-party entity; and the cautious approach would be to table and notify.

Attorney Richard Torpy, representing the applicant, stated his client acquired two separate parcels with two separate grantors; his client is the Old Catholic Church in American Central Florida, Inc.; one of the deeds was issued to that entity; however, the second deed was issued to Old Catholic Church of America, Inc. Central Florida, Inc. He stated this was done through a title company; it was not privately done; and a title insurance policy was issued at the closings, which were held simultaneously by Republic Title Company. He stated they took the deeds back to the title agent Vivian Rodriguez and advised a mistake had been made; Ms. Rodriguez did a corrective deed based on a scrivener’s error; and he already provided that to the County. He stated the title agent exed out the work “of” and replaced it with “in” and exed out the word “Inc.” which was duplicated and did not need to be there; and then the deed was re-recorded. He stated a note was included showing the Old Catholic Church in America Central Florida, Inc. with an asterisk indicating it was re-recorded to correct the name of the grantee due to scrivener’s error. He advised that is how to correct an accident; what Ms. Bentley has raised this evening is to say that the deed conveyed to the Old Catholic Church of America in error; so although there has been a correction made on the record, that entity could come in and say the property was theirs and Father Conway did not have a right to apply for rezoning. He stated he disagrees with Ms. Bentley for two reasons; there is no entity called the Old Catholic Church of America Inc. Central Florida Inc.; the name that was on the original deed does not match any corporate entity he has been able to find in the State; there is an Old Catholic Church of America Inc.; however, it does not have Central Florida Inc. in its name, so he has no entity to go to, to request a quit claim deed or joinder. He stated even if he contacted the Old Catholic Church of America for a joinder or quit claim deed, that deed would not contain the name Old Catholic Church of America Inc. Central Florida Inc. He stated that is a non-entity; it does not exist; and the deed was properly corrected in accordance with the title company and principals. He stated the second point is the title company made the correction; title companies do not just change names on deeds unless they are comfortable their insurance policy is not going to have to pay; and they are the ones who made the correction in this format. He stated he has no way to go back; there is an action called quiet title, but he does not have an entity to sue because such entity does not exist. He stated they have done all they can; they have provided documents to the County; the Board is in possession of the deeds showing that the Old Catholic Church in America Central Florida Inc. is the property owner and correct title holder to the property; he thinks it is okay to proceed; and requested the Board proceed this evening with the request for the conditional use permit.

Commissioner Carlson inquired if there is an argument, would not the entire title of the organization be looked at and not just “of” or “in.” Ms. Bentley stated she is looking at the old deed, which says Old Catholic Church of America Inc.; corporations online lists a foreign non-profit corporation called Old Catholic Church in America Inc.; so it is a match. She noted Mr. Torpy may have gotten different information, and that is why there are judges. Mr. Torpy stated there is no entity online that is Old Catholic Church of America Central Florida Inc., which is the actual name on the deed. Ms. Bentley advised that is what the new deed says, but she is talking about the old deed. Mr. Torpy advised he is talking about the old deed that created the scrivener’s error; the bad deed said Old Catholic Church of America Inc. Central Florida Inc.; and that entity exists nowhere. He stated there is a corporation with the name Old Catholic Church of America; but there is none with the entire name that is on the deed. Commissioner Scarborough requested Mr. Torpy look at what Ms. Bentley has, which is not showing the same thing Mr. Torpy is saying. Mr. Torpy and Ms. Bentley looked at the deeds.

Mr. Torpy stated this is what the title work comes down to; there is definitely an issue of changing the name; but he does not know that the Old Catholic Church of America is an actual entity. He reiterated the title company did the corrective work; he does not want to have to go back for quiet title; no one is claiming to own this land; and he does not want to have to get embroiled in a legal case when the title company is happy and is insuring ownership and the title. He stated this is getting extremely technical on an issue without much need to do so; they have come in as an applicant and represented to the County that they are the owners of the property and have authority to proceed forward; they have provided corrective deeds to take care of the scrivener’s error that was caused by the title company; and to require them to go to court and correct this is overly offensive. He stated he deals with title problems all the time; companies are so difficult and careful because they do not want to get on the hook; title companies call his office all the time for very minor issues; and it is more difficult to convince a title company than a judge that there is clear title, so they are comfortable with it and think the County should be comfortable with it as well.

Commissioner Scarborough stated if he walked in with the deed, he is afraid the title company would raise objection; but as the title company has already made an error, it is convenient for the title company to say everything is copacetic now, after the fact. He stated he does not think there is a real problem here; but there is something that bothers him. He stated if he had a deed and put 24 when he meant 26, it would be clear to the two parties, and they could say it was a scrivener’s error; however, if he intended to deed something to Commissioner Colon but accidentally deeded it to Commissioner Higgs, there would be a problem because Commissioner Higgs is an entity that exists. He stated he would correct the problem by contacting Commissioner Higgs for a quit claim deed; and it is the fact that the deed went to an actual legal entity that bothers him. He stated the deed says Old Catholic Church of America Inc.; it does not say anything about Central Florida; and it has been recorded. He stated he is having a problem with this; Ms. Bentley was trying to offer Mr. Torpy an easy solution; but if he wishes to push this, he has a problem with the Board proceeding on a rezoning where a title exists clearly on the record to another entity, and there is just a corrective deed by the person who created the problem now saying there is no problem. He stated Ms. Bentley recommended tabling this and contacting the other entity. Mr. Torpy requested the item be tabled until next month so he can get this taken care of. Commissioner Scarborough advised it should be resolved. Mr. Torpy stated he would rather address this and deal with the whole issue. Commissioner Higgs inquired when is the next zoning meeting; with Ms. Bentley responding there are meetings on February 6 and March 6, 2003.

Motion by Commissioner Higgs, seconded by Commissioner Pritchard, to table Item 3 to February 6, 2003 Board of County Commissioners meeting.

Commissioner Higgs stated it is her understanding the tabled items will be at the beginning of the meeting.

Chairperson Colon stated four cards have been submitted; and inquired if the speakers should be heard. Commissioner Scarborough stated the Board has offered people the opportunity to speak who could not make the next meeting; and if they speak this evening, they would not be speaking at the next meeting. Commissioner Carlson stated if the Board tables something, it cannot be discussed further; with Commissioner Higgs advising it has not been tabled yet. Commissioner Higgs stated if the speakers can come to the next zoning meeting and hold their comments until then that would be good.

Nick and Sharolyn Tsamoutales and Marc Cameruci agreed to defer their comments until the next zoning meeting.

Laraine Scoma stated she is not sure she will be present on February 6, 2003, and wants to give her slant on the issue. She stated she is a church member as are her parents and several family members; this request is compatible as far as the Comprehensive Plan; Dairy Road has been widened; and there are many churches that are much greater in size and membership than the Old Catholic Church because their way is to have not more than 90 to 100 members. She stated if the membership grows to more than 100, there is need for another Old Catholic Church to be formed; within 100 yards of Dairy Road is a Baptist Church with at least 5,000 members; and they require a policeman when leaving church on Sunday morning to direct traffic. She stated the parcel at Dairy Road and Florida Avenue has a light; it is very conducive to the flow of traffic; and a lot of other churches in the area are abutting residences that existed before the churches, so this is not an unusual request. She stated she knows they are thwarted by the title issue; she believes it is a big smoke screen; the residents next door have said from day one that they do not want a church there; and she believes this is just a ploy to thwart the effort of the church. She stated she has two brothers who wish to get married and are waiting for the church to be built; and commented on Father Conway’s sincerity and service to the community. She stated it is a disservice to everyone in these difficult times to thwart Father Conway’s effort to spread love and wisdom. She stated she wishes this could be approved and the nitpicking legalities be resolved to let them go forward with their church.

Chairperson Colon noted regarding it being a ploy, it is the action of the Board that everything be done legally; the Board has nothing to do with the neighbors; and it wants to be fair to both sides. She noted she knows Mr. Tsamoutales and Mr. Torpy, and both want to make sure that things are done right.

Commissioner Scarborough inquired what is going to happen within this month, what can the Board expect to come back, and who is going to contact whom. Mr. Torpy stated he is going to do what the Board suggested; he will be on the phone tomorrow with the title company; and the simplest way will be to contact the Old Catholic Church of America to get a quit claim deed, which will erase all issues. Commissioner Scarborough suggested at the same time the County Attorney’s office send out a notice by registered mail to advised the Old Catholic Church of America that it should be anticipating something from the applicant; and in that way at least the Board will know if they fail to respond in any manner. He stated if the Old Catholic Church of America fails to respond, the Board may look to Mr. Torpy to hold the County harmless. Mr. Torpy stated that would be a great help. Commissioner Scarborough inquired if that can be incorporated into the motion.

Commissioner Higgs stated the motion will include direction to the County Attorney to write a letter to Old Catholic Church of America advising of the problem with the Deed. Chairperson Colon called for a vote on the motion as amended. Motion carried and ordered unanimously.

Item 4. (Z0210501) William P. Turnbaugh, Trustee’s request for change from AU to RR-1 on 81.09 acres located on the east side of Simon Road, south of Milwaukee Avenue, which was recommended for approval by the P&Z Board.

Zoning Official Rick Enos stated this was tabled last month due to the school capacity issue; Melbourne High School, which is the school serving this area, does have a current enrollment that exceeds the permanent capacity; and current enrollment is 2,282 and the permanent capacity is 2,206.

William Turnbaugh requested the Board approve the item as recommended by the Planning and Zoning Board; and advised he is not that familiar with the school capacity issue. He stated he does not believe his request will have much, if any, impact on the schools. Chairperson Colon inquired what will Mr. Turnbaugh be putting on the property; with Mr. Turnbaugh responding single-family residences. Mr. Turnbaugh stated the capacity of the property now is probably 30+ units with no rezoning; he should have rezoned this three years ago, but did not do so; and there is no special reason for the rezoning except that later on he would rather have units of one acre or one and one-quarter acre rather than the two and one-half acre units he has now. He stated he will keep it in agricultural use probably for years to come; but in the back of his mind, is the possibility of expansion later on. He stated he has been listening to the issues, but does not believe he has any impact.

Chairperson Colon stated Mr. Turnbaugh heard the numbers; and inquired about the possibility of him building a community for individuals 55 years old and up, because in that way it would not be a school capacity issue. Mr. Turnbaugh responded it has not been discussed with him; he talked to Mr. Cameron and Ms. Heller approximately six or seven years ago, and there was no problem; but now there are issues with densities. He reiterated if he had rezoned it five or six years ago, it would have gone right through; and he helped build some of the schools. Chairperson Colon stated she does not want to put Mr. Turnbaugh on the spot, but she wondered if anyone from staff recommended that; with Mr. Enos advising no one discussed it with Mr. Turnbaugh, but it is an option that has been discussed on other parcels in the past, and on one occasion the Board accepted the over-55 community as a way to insure there is no impact on the schools. Mr. Turnbaugh stated he had not considered that; and it has been a rural residential area for some time. Chairperson Colon suggested the Board move to the next item, and staff explain what her suggestion entails. She stated it might or might not be something Mr. Turnbaugh is interested in; it would keep the item from being tabled; and school capacity is a big issue now. Mr. Turnbaugh indicated desire to discuss the proposal with staff.

The Board postponed Item 4 until later in the meeting.

Item 5. (Z0211401) James and Jane Mink’s request for change from EU and BU-1 to all EU on 1± acre located on the east side of US 1, south of McIver Avenue, which was recommended for approval by the P&Z Board with a BDP as submitted.

The item was withdrawn by the applicant.

Item 6. (Z0211201) Roy E. and Evelyn Lindback’s request for change from GU to RR-1 on 4.88 acres located on the west side of Cox Road, south of Rayburn Road, which was recommended for approval by the P&Z Board.

Charles Weldon, representing his mother, Evelyn Lindback, stated the purpose of the rezoning is to allow his mother to build three houses, one for herself and her husband, and the other two for her daughters, who she is providing housing for now. He stated this will not impact the schools; they are 45 to 50 years old; and they have grandchildren, but they do not live in the residence with the grandmothers.

Glenn Hennekam, representing his father, submitted photographs; and stated they are requesting denial of the rezoning based on flooding problems, as they are in a low-lying area. He stated they did not realize what the zoning was going to be for; they were just told it was for older persons; but the main problem is the flooding. He stated they live in the lower-lying area and receive continuous flooding; the house has to be built up 22 inches; and all the adjoining lots have to do the same thing. He stated if they put numerous houses on one lot, the water is going to flow downhill and end up on their property; one house on 4.8 acres is not a big deal; but putting three or four houses on the same space is going to cause flooding of low-lying areas, which is their house and adjoining areas. He requested the rezoning be denied, and if the Board approves it, there be some kind of drainage system.

Commissioner Carlson inquired if Mr. Hennekam is sure there is not a canal there; with Mr. Hennekam responding it is their back yard; and the fence that his father is pointing to is the property on which the request is made. He stated there is a church on the other side of the property, which is also built up; across Cox Road used to be a low-lying swamp, so all the water would flow there; whoever, it is now a subdivision so everything stays stagnant. He noted they have mosquito problems; they requested zoning approximately ten years ago and were denied; and if the Board does approve the rezoning, he would request it consider their request for change in the future. He stated there should also be a drainage system of some sort to provide water relief because it is really a nightmare.

Commissioner Pritchard stated he was looking at an aerial map that shows SR 524, Cox Road, the church, the strip of property, then the Hennekam’s single-family house; and inquired if there are woods on the north side or if anything is there. Mr. Hennekam stated they are bordered by wooded lots on the north and south sides. Commissioner Pritchard inquired if there is something on the second lot to the north; with Mr. Hennekam responding someone built a house there, and it is built to County standards as far as raising up to Cox Road level. Commissioner Pritchard inquired if the drive for the house is on the north side of the property; with Mr. Hennekam responding affirmatively. Commissioner Pritchard inquired about the lot to the north that appears to have a couple of houses; with Mr. Hennekam responding it used to be farm land, but someone turned the shed into a house and there is also a mobile home on the other side of the lake. Mr. Hennekam stated they have no personal objection to the rezoning, but are concerned about the flooding; and commented on his father’s age, difficulty in walking, and snakes and rodents on the property.

Chairperson Colon inquired if this is the first time Commissioner Pritchard is hearing about the flooding issues. Commissioner Pritchard responded there are a lot of problems with flooding in this area; it is like portions of North Merritt Island; and until something is done with flood control canals and perhaps pumping stations, it is always going to be an issue. Commissioner Pritchard requested the Board hear the remaining speaker.

Mark Derman stated he is the building contractor who came online in mid-August; the Lindbacks were misinformed that they could subdivide their property after building; but after checking with Zoning, he found they had to rezone their property prior to subdividing. He stated the intent is to bring family members online to share the property with the Lindbacks. He stated he has been building for 16 years; the rules in the County are that they cannot drain on neighbors; and there is a drainage department in the County now. He stated they are approved as far as other issues such as wetlands, natural resources, and other issues; the Lindbacks are elderly; and they are patiently waiting to start their house. He stated he is present to help with any questions that may come up about the property.

Commissioner Pritchard inquired if the applicant is able to construct three houses on the property, how is the water going to be managed; with Mr. Derman responding there has to be a drainage plan submitted to the Building Department. Mr. Derman advised there is a wetland portion on the property; there was an environmental assessment done by an environmental scientist which showed some low-lying area on the property that retains water; it is a natural area; and there will be a preservation area. He stated the wetland is only .7 acre of the five-acre parcel, so there is plenty of area for preservation, drainage, and building of the home. He stated the Drainage Department will have to consider each application beyond that as to how drainage will be handled. Commissioner Pritchard stated the Planning and Zoning Board recommended approval unanimously; and inquired if Mr. Enos has any comments. Zoning Official Rick Enos advised the developed area west of Cox Road is a mixture of RR-1 and the larger parcels; the parcels immediately to the south of the one in question is a church site that is in the City of Cocoa and is zoned commercial; so he feels RR-1 is appropriate and compatible with the neighborhood. Mr. Enos stated the drainage is a legitimate concern; but since there are provisions in the Code that require property consideration of the drainage facilities, he finds the request is appropriate. Commissioner Pritchard stated he was focusing on compatibility with the neighborhood; but it is difficult to derive compatibility because of the mixed use; and advised of the surrounding properties. He stated as long as the water is going to be controlled so drainage does not impact the neighbors, he does not have a problem with it, and supports the RR-1 classification. Mr. Derman advised this is not a flood zone property; there have been changes in the Code as far as flood zone properties and how high one is allowed to build; but none of those changes come into play with this property.

Chairperson Colon inquired if Mr. Derman had an opportunity to look at the pictures; with Mr. Derman responding no, but he walked the property and is familiar with it. Chairperson Colon stated she would like Mr. Derman to see the property with the water so he can be sensitive to what the Board is talking about.

Commissioner Carlson inquired if a drainage study has been done on the property since they want to build three homes; with Mr. Derman responding not at this time. Commissioner Carlson stated if a study is done, it will tell how much buildable property there is, given that there is a wetland. Mr. Derman inquired about the drainage study; with Commissioner Carlson advising there should be a study of the drainage since there are water problems; and it may cause Mr. Derman to think he cannot put three homes on the property because there is not enough high and dry land to provide for those homes. Mr. Derman advised there is plenty of high and dry land for the homes; they have not come up with a drainage plan for the other parcels; but for the parcel in question, there is plenty of drainage.

Commissioner Higgs inquired where is the multi-family; with Commissioner Pritchard responding across the street. Commissioner Higgs stated it is RU-1-7; with Commissioner Pritchard clarifying it is a subdivision with single-family homes, but there are multiple lots.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve Item 6 as recommended. Motion carried and ordered; Commissioner Scarborough voted nay.

Commissioner Scarborough stated in the past when there have been massive drainage problems, the Board has not moved forward, but tried to understand the dynamics of the water problem before proceeding. He stated it does not come out in the staff review; but once the information is brought forward with pictures of the nature presented to the Board, the Board should table the item and have further review. Commissioner Higgs suggested prior to a building permit being issued on the property, staff could be asked to review the drainage and report back to the Board.

Motion by Commissioner Higgs, to direct staff to provide a report on the drainage before issuance of the building permit.

Commissioner Carlson inquired if it is part of the previous motion. Commissioner Pritchard stated he would have no problem with that as it is one of his concerns; and it is a burden on the person who is developing the property to insure their neighbors are not adversely impacted. Commissioner Scarborough stated if a review is needed, the Board needs to review Deer Run.

Commissioner Pritchard seconded the motion. Chairperson Colon called for a vote on the motion. Motion carried and ordered unanimously.

Commissioner Pritchard advised of a recent situation with a culvert that was placed improperly and had to be moved.

Item 4. (continued)

William Turnbaugh stated based upon the discussion he had, the 55 and over issue could be a consideration, but he would like to look into it in some depth.

Chairperson Colon inquired if Mr. Turnbaugh would prefer tabling. Mr. Turnbaugh stated he would prefer to ask the Board to withdraw his application and consider the monetary end also so at a later date he may reapply. Chairperson Colon inquired if the Board is able to give Mr. Turnbaugh time to review and has it done it in the past. Ms. Bentley stated the Board could table it for a time certain to let Mr. Turnbaugh look at the issue. Chairperson Colon inquired what is the most time the Board could give him; with Ms. Bentley responding four months would be reasonable. Mr. Turnbaugh stated that is the reason he asked to withdraw it; he has been waiting on this for a decade; and he would rather ask the Board to refund his fees. Chairperson Colon inquired what was the amount of the fees; with Mr. Turnbaugh responding close to $3,000. Ms. Busacca requested the Board allow staff to advise what the advertising costs, etc. have been on this item. Planner Robin Sobrino advised the fee paid was $2,738. Mr. Enos advised it would be just as easy to table this; it would not have to be re-advertised; and if it was tabled until August 2003, the school capacity may be solved by then. Chairperson Colon stated the Board can table to August, but if Mr. Turnbaugh wishes the Board to hear it before then, he can let them know. Mr. Turnbaugh inquired if that is the longest time it can be tabled; with Chairperson Colon advising he can always come back. Mr. Turnbaugh inquired if it can be re-tabled; with Chairperson Colon responding yes; with Mr. Turnbaugh advising that is fine.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to table Item 4 to August 7, 2003 Board of County Commissioners meeting. Motion carried and ordered unanimously.

The meeting recessed at 7:25 p.m. and reconvened at 7:32 p.m.

Item 7a. (Z0211202a) Brevard County Board of County Commissioners, on its own motion, authorized administrative rezoning on property owned by Midwestern Construction, Inc. to adopt Administrative Small Scale Plan Amendment and change of Future Land Use Map designation from Public Facilities to Residential 10 on 0.43 acre located on the west side of North Banana River Drive, which was recommended for approval by the P&Z Board as Residential 6; and Item 7b. (Z0211202b) Midwestern Construction, Inc.’s request for change from GU to RU-2-8 on 0.43 acre located on the west side of North Banana River Drive, which was recommended for approval by the P&Z Board as RU-2-6.

Tyson Passmore stated they recently bought the property from Midwestern Construction; they are trying to rezone from GU to RU-2-8; and the property was used as a daycare for 37 years. He stated it is presently commercial; they are trying to take it to a less intense use in terms of traffic; with the daycare there were 60 to 80 cars a day; but the daycare was foreclosed on two times in the past eight years. He stated there is another daycare down the road that is more successful; and they are trying to reduce the traffic and get residential zoning.

Rhiannon Brill stated the area is residential; the density is less to the north at RU-2-6; and they are requesting RU-2-8 because they would like to have a triplex. She stated the property is located on .43 acre; the building as it stands now is approximately 3,000 square feet; so a triplex would be reasonable. She stated three units would mean three families; and one unit would be owner occupied. She stated they are aware of the issue with the School Board and the formula for how many children are applied to a school based on the number of units; if Mr. Amari’s development with over 100 units was going to have an impact of 22 students, she does not think their three units will have much impact on the schools in their district, which are Jefferson, Audubon Elementary, and Merritt Island High School. She noted the only school at or over capacity is Merritt Island High School; and the Board already heard how that is being addressed with Edgewood being a school of choice. She stated they are improving the area; it has been a daycare with over 100 cars driving through each day; and their request is not out of the ordinary as there is residential in the area. She stated the property has been decreasing as far as looks and appeal to the neighborhood; they are trying to improve the value of other people’s homes as well; and they could put something commercial there, but that would only decrease the value of other people’s property, as well as increase the traffic.

Chairperson Colon inquired if Ms. Brill is aware the recommendation is for just two units; with Ms. Brill responding yes.

Mr. Passmore stated they did not have any of the information about the plans for Edgewood as a school of choice when they went before the Planning and Zoning Board.

R. A. Ovington stated the property is adjacent to Audubon Elementary School; and right now the traffic flow is horrendous. He stated the property to be rezoned is adjacent to the ingress/egress to the school; it is a mess in the morning and afternoon; and it holds up traffic for three-quarters of an hour going north and south. He stated it is ludicrous to take the building on .43 acre and make three family dwellings; the building has been there for 37 years; and it looks substandard. He stated the idea is for it to be a rental; since it is adjacent to the school, it would be a great place for pedophiles to move in; and over and above the traffic problem that exists now, he does not think it would be practical. He stated it would lower the value of the houses in the neighborhood substantially; it is a bad idea; he has been in the neighborhood for close to 40 years; and he can see where there could be a lot of possible problems. He stated he does not like the idea; he does not think anyone does; and commented on how the zoning notice was posted and lack of re-notification when the item was tabled. He stated very few people knew about this rezoning request; and he does not think the Supervisor of the School knew about it.

Mary Adams stated she owns the property directly in back of the building; and submitted a picture of the building to the Board, but not the Clerk. She stated the building is vacant now; the crosswalk on Banana River Drive is right at the end of the building; and there are two concerns. She stated she and six of her close neighbors are concerned enough to be here tonight; and they did not know about it earlier or they would have come sooner. She stated the first concern is that housing in the area is single-family homes; this is the first time a zoning has come in to change a building to a multiplex; and they are worried if the door is opened, it will get wider, and such rezoning will be easier next time. She stated at the first meeting there were two ladies who owned property across the street; their homes were valued at $400,000; and she can see their concern. She stated when an area is single-family and someone wants to come in with multifamily, that is a concern. She stated the second concern is about Audubon Elementary students; she was told there are 675 students; and it is a walk-in school, meaning no students are bussed in. She stated the majority of the students walk, ride bicycles or skateboards, or are brought by their parents; so the safety of those children is a concern.

Chairperson Colon inquired how long ago was the daycare there; with Ms. Adams responding they bought their property in 1963, and it was a few years after that. Ms. Adams advised the School Board sold the corner of that property for a Children’s Choice, which was wonderful. Chairperson Colon inquired how long ago was that; with Mr. Ovington advising it was a Montessori School first and then it was a Children’s Choice. Chairperson Colon inquired when was the last occupant; with Ms. Adams responding it has been vacant approximately a year or two.

Commissioner Pritchard stated he is familiar with the building; it was used for a daycare for a number of years, so he assumes there was quite a bit of traffic; and inquired if it was primarily walk-in traffic; with Ms. Adams responding she is not sure. Commissioner Pritchard inquired if it has ever been used for anything other than a daycare type facility; with Ms. Adams responding that is the only thing she is aware of, and she wondered why the County did not buy it back. Commissioner Pritchard inquired can it currently be used as a daycare; with Mr. Enos responding this is a nonconforming use, so if it has been closed for six months, the daycare cannot be reestablished and the parcel must be used according to its current zoning. Commissioner Pritchard inquired what is the current zoning; with Mr. Enos responding GU, and typically that is a five-acre lot for a single-family residence. Commissioner Pritchard inquired if this could be used for a single-family residence; with Mr. Enos responding it may take a rezoning even for single family as staff is not convinced the lot was ever created according to Code. Commissioner Pritchard inquired what could it be used for; with Mr. Enos responding it would require rezoning to use it for anything; if the Board rezoned to single-family, it could be used for single-family; or it could rezone to commercial for another daycare center or multifamily for a duplex or triplex. Commissioner Pritchard inquired if the applicants have any interest in using the property for anything other than a triplex; with Mr. Passmore responding when they originally looked at the property, they found it had been foreclosed on twice in just eight years and had been abandoned for a certain period of time; and if they tried to go commercial, that could be even more of a hard time for the citizens with more traffic impact and it being a bigger eyesore than it is now. He stated they plan to rehab the building; and they figured multifamily would be easier to go for. He stated Ms. Adams was talking about people walking across the sidewalk that is technically on his property; it is private property; and they already talked to the principal. He stated the school is putting in another sidewalk on the other side of the property; it is going to put the bike rack to the back of the property; and commented on the loss of Little League fields. He described how a bikepath is going to be put in going to school property. Commissioner Pritchard stated the students have been using the applicant’s driveway; with Mr. Passmore responding that is right, and this week the school constructed another sidewalk; and the students can then go to the crossing guard and cross the street. Ms. Brill stated she has noticed, in her dealings as a realtor, that it is easier to convert from commercial to multifamily than to try to go to single-family; this is a large piece next to a school; and they think multifamily would be a better use of the property. She stated as far as the traffic concerns, there is no way they are going to widen Banana River Drive; there are two accesses to the school, one with a light; they have been working with the principal in regard to safety issues with the students; and one of the roads is actually a private road, which is half their property. She stated it does not show up on any County maps, but the school has been utilizing it; and they have no issues with that. She stated they cannot address the school safety issues until the rezoning is taken care of.

Commissioner Pritchard stated a triplex is not compatible with the neighborhood, nor would a duplex be compatible; it is all single-family residential; and to have it as a daycare where there is traffic coming in and out increases the risk to the children. He stated a duplex or triplex would allegedly reduce the traffic flow, but it is incompatible with the neighborhood; and he is looking for some other use that could be compatible. He stated he does not see how a business other than a daycare would be compatible. Ms. Brill stated within a mile of the property to the south are co-op apartments, Pelican Cove Apartments, and a mobile home park, so there is other multifamily. Commissioner Pritchard stated he understands that; but the neighborhood surrounding the property is single-family residential. Ms. Brill noted the future use code north of that is RU-2-6. Ms. Busacca stated she thought about residential professional as something the Board frequently sees with residential behind it; it allows low intensity commercial and allows some to live there, such as a doctor’s office with the doctor living there, which would typically have a relative few number of trips in comparison to other residential. Mr. Enos stated consideration of residential professional would require a re-advertisement, but it would fit the character of the area well.

Chairperson Colon stated the property has to be zoned, and a daycare cannot come in now. Commissioner Pritchard stated right now nothing can come in as it has to be rezoned for something. Planner Todd Corwin advised right now the property has a public facilities land use designation, which is for public entities; the property was broadbrushed to a public facilities designation when the original Comprehensive Plan was being implemented; and it will need a privately compatible land use designation such as a residential or commercial, based upon the Board’s direction.

Commissioner Pritchard stated he cannot support a triplex or multifamily; it is not compatible with the neighborhood; and suggested the applicants work with the neighbors and the County to come up with something that will work for everyone.

Mr. Passmore stated the building already has three kitchens, two baths for each unit, three air conditioning units, three power meters, and is already separated into three individual units; that is why they went toward the three units, because they are pretty much already there; and all they would have to do is rehab the front outside and do some things on the inside to make it look better. Commissioner Pritchard stated he understands why they want to go that way; however, it is an issue of compatibility; and the neighborhood does not have multifamily housing. He stated there has to be a purpose for the building, and it is something other than a duplex or triplex.

Chairperson Colon inquired if Commissioner Pritchard wishes to table this and see it at a regular meeting. Commissioner Pritchard responded he would like to see something there; but it has to be something that is going to work for the neighborhood; and if it could come back to a regular meeting, that would give everyone an opportunity to come up with something creative.

Commissioner Scarborough stated he heard it had to be re-advertised to go to residential/professional; and as Commissioner Pritchard does not want to accept the current request, it would be appropriate to deny this. Mr. Enos advised it would have to be re-advertised.

Mr. Passmore inquired if it is re-advertised for commercial, would the people not be more outraged about the commercial traffic.

Chairperson Colon stated that is a good point; the property has to be rezoned to something; and inquired what would be acceptable to the neighborhood. Ms. Bentley stated she was concerned because the land use designation does need to be changed regardless of what the Board does about the zoning.

Mr. Ovington inquired what about recreational. Chairperson Colon inquired recreational for who as it is not going to be done by the County or School Board. Mr. Ovington suggested a tennis court or something similar. Chairperson Colon advised she wants to see a compromise to help the applicants; a triplex is not acceptable; there was concern about who might come in as a renter; and there is concern about the safety of the children. Mr. Ovington noted the principal at Audubon is moving to another school, and is not interested in this at all.

Ms. Adams stated one of the schools secretaries said they thought about using is for before and after-school care of children, but it costs too much. Chairperson Colon stated that goes back to the daycare; with Ms. Adams noting it is a children’s area. Chairperson Colon advised it is private property; and they are trying to figure out what to do to protect the residents but help the applicants.

Motion by Commissioner Pritchard to deny Item 7a.

Commissioner Higgs stated it might make sense to go ahead with the residential land use so that is in place; then they will not have to reapply for that, and it would allow them consideration of a residential/professional use or one of the other uses.

Chairperson Colon inquired if that is okay.

Commissioner Scarborough stated the daycare idea is a viable one with so many working parents needing places for their children; and inquired does that necessarily require commercial or can it be with the residential/professional zoning. Commissioner Higgs stated it can be in BU-1-A. Mr. Enos stated if it were designated residential and the use were for BU-1-A, that would include daycare facilities, and the Board would have to make the determination it was a transitional use. Commissioner Scarborough stated it is a unique property, which has advantages and disadvantages; and he sees the merit of approving the residential, thinking they can come back with a different concept for usage. Mr. Enos requested a residential density be given; and stated the original request was eight but the P&Z Board’s recommendation was six. Commissioner Higgs inquired if the built-out density is four; with Mr. Enos responding affirmatively. Commissioner Higgs inquired if it would make sense to do the built density; with Commissioner Scarborough responding yes, and that would not restrict the BU-1-A; with Mr. Enos advising that is correct.

Commissioner Pritchard inquired what happened to the discussion on BU-1-A; with Chairperson Colon responding it can come back. Commissioner Scarborough stated it is a zoning classification that can fit into the residential land use; there was concern that going to residential might preclude the commercial use; but he has been advised they could have BU-1-A allowing for child care facilities even with residential.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt Ordinance amending Article III, Chapter 62 of the Code of Ordinances of Brevard County, entitled “The 1988 Comprehensive Plan”, setting forth the Fifteenth Small Scale Plan Amendment of 2002, 02S.15, 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.

Commissioner Scarborough stated the prudent thing would be to deny the multifamily as it is not compatible.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to deny Item 7b. Motion carried and ordered unanimously.

Mr. Enos stated the Board spoke about the possibility of the applicant coming back with a different zoning; and inquired if the intent is to waive the six-month waiting period.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to waive time period for reapplication. Motion carried and ordered unanimously.

RESOLUTION, RE: AUTHORIZING APPLICATION FOR GRANT FOR LANDSCAPING AND
MAINTENANCE OF SR 405

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to adopt Resolution authorizing application for grant for landscaping and maintenance of SR 405. Motion carried and ordered unanimously.

Upon motion and vote, the meeting was adjourned at 8:08 p.m.

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JACKIE COLON, CHAIRPERSON
BOARD OF COUNTY COMMISSIONERS
ATTEST: BREVARD COUNTY, FLORIDA

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SCOTT ELLIS, CLERK

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