The Board of County Commissioners of Brevard County, Florida, met in regular session on April 8, 1999, at 5:34 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were Chairman Truman Scarborough, Commissioners Randy O'Brien, Nancy Higgs, Sue Carlson, and Helen Voltz, Assistant County Manager Steve Peffer, and Assistant County Attorney Eden Bentley.

The Invocation was given by Chairman Truman Scarborough.

Commissioner Helen Voltz led the assembly in the Pledge of Allegiance.

PUBLIC HEARING, RE: TABLED ZONING ITEMS OF JANUARY 4, 1999 AND FEBRUARY 1, 1999

Chairman Scarborough called for the public hearing to consider items that were tabled by the Planning and Zoning Board at its January 4, 1999 and February 1, 1999 meetings, as follows:

Item 1. (Z9901301) James R. Peo and Nicholas A. Peo's request for a CUP for Aquaculture-Case II in an RR-1 zone on 2.46 acres located on the west side of Highway A1A, approximately 1.27 miles south of Aquarina Boulevard, which was recommended for approval by the Planning and Zoning Board and tabled by the Board of County Commissioners on January 28, 1999 to its April 8, 1999 meeting.

Commissioner Higgs stated she met with Mr. and Mrs. Woodford as well as residents of the South Beaches; and she has made no commitment on how she will vote. Commissioner Voltz advised she also met with the Woodfords and had several telephone conversations regarding this issue. Commissioner O'Brien advised the Woodfords also visited his office.

Melvin Woodford stated he applied for a CUP under Ordinance 93-26, Aquaculture Case II on Rural Residential property; at the January, 1999 meeting, he requested this be tabled and Commissioner Higgs set up a meeting with a group of the local residents so he could address their concerns; and that meeting took place, and minutes were taken to document the concerns and responses. He described the property including upland area where a house could be built, and the nursery hatchery could be located, and wetland areas; outlined the areas of dense vegetation; and stated the vegetation provides a high degree of natural isolation. He stated they need a place to produce clam seed to plant on their lease which is located in the Indian River, one mile west of the property; and this is one of the few lots in the area that is available for purchase. He stated the area is also important because of its proximity to Sebastian Inlet; excessive rainfall in the past four years has made much of the Indian River unsuitable for growing seed clams on a consistent basis; the property is located in an area of the river which has kept an acceptable salinity level, even during storm events; and Max Taylor's nursery hatchery located just to the south produced good results at a time when nursery hatcheries on the west side of the river were experiencing heavy losses. He requested the Board's approval of the CUP based on the fact they have met all the requirements; and outlined the six requirements they have met. He stated his application was unanimously approved by the Planning and Zoning Board; and comments from the P&Z worksheet indicate that the proposal is consistent with the future land use designation, consistent with the maximum allowable residential density, and would maintain acceptable levels of service. He stated the P&Z Board's unanimous vote was based on a consideration of land use compatibility; it meets County use or density restrictions; and comments under other considerations document the fact that the applicant does not intend to reside on the property immediately. He stated concerns were raised at the meeting with regard to environmental issues associated with the road and dock; but that is a separate permit through DEP and Army Corps of Engineers, and the objections should be disregarded as the permit and the CUP are independent issues. He stated if the CUP is granted without the other permit, he can still operate the nursery hatchery; he does not believe there are any environmental issues directly coupled to the CUP; however, Brian Poole agreed to be present to answer questions.

Jean Perdue stated she is a neighbor of the Woodfords, and is speaking on behalf of the neighbors; they are in support of the Woodfords' continued activities at their current address; and they hope the Board will grant the CUP for a facility in South Melbourne Beach. She submitted letters in support of the CUP from neighbors Edythe Wisdom, Arthur and Jane Brittingham, Richard and Martha Davis, Ronald and Delores Ingraham, Jeanne Caudle, Jack and Rowena Balter, Katherine McGehee, and from the Farm Bureau and the Shellfish Farmers Association.

Carol Draper spoke in opposition to the conditional use permit due to noncompliance with Sections 62-1906 and 62-1336 of the Brevard County Code which require an accessory structure to not exceed 50% of the living area of the principal building; and stated there is no principal dwelling on the site.

Alice Harms spoke in opposition to the conditional use permit due to the sensitivity of the land.

Kathy Tompkins read aloud a letter from Katherine McGehee in support of the conditional use permit.

Harriet Fine expressed concern about what the conditional use permit will do to the South Beach area, and lack of a primary residence.

Earl Stattum spoke in opposition to the proposed hatchery and commercial activity in residential zoning; and commented on noise from the pumps, change in number and size of the pumps, number of boats coming and going from commercial dock, filling the wetland for access to the river, impact on adjacent property values, and lack of sanitary sewer for workers.

Commissioner Voltz inquired if Mr. Stattum can tell the difference between two two-horsepower pumps and one five-horsepower pump; with Mr. Stattum responding he does not know as he is not familiar with the larger pump. Commissioner Voltz stated she was questioning whether Mr. Stattum could hear the difference; with Mr. Stattum responding no one cares for the sound of a pump running continuously, 24-hours a day, and at night pool pumps, etc. shut down. Commissioner Voltz inquired if Mr. Stattum had an option to buy the property; with Mr. Stattum responding he did. Commissioner Voltz inquired if he advertised in the newspaper that this property would be good for aquaculture; with Mr. Stattum responding he did not.

Dr. Alan Fine advised of his background with the Environmental Protection Agency on pollution prevention programs; and outlined the rules for putting in a residential dock and the difference in rules if there is a conditional use permit. He stated if the conditional use permit is approved, he and his neighbors will be returning to the Board for conditional use permits so they can build through the wetlands, put in commercial docks, and do other things which they are restricted from doing in residential neighborhoods.

Pam Richardson-Acevedo stated Mr. Woodford mentioned even if the Board does not grant the CUP that DEP and the Army Corps of Engineers could issue a permit to fill in the wetlands and maintain a commercial dock; and voiced opposition to the conditional use permit based on the lack of a residence on the property. She commented on various issues in the Comprehensive Plan relating to culverts and manmade canals; emphasized this is a residential community with a lot of endangered and preserved lands; and expressed concern that agencies which have been proactive in conserving land are issuing permits for things that are contrary. She submitted paperwork.

Steven Woodford declined the opportunity to speak.

Susan Simoes, President of BIPPA, advised of the need for definition of "mom and pop" aquaculture; and stated the hatchery would be a detriment to the surrounding properties and the Indian River Lagoon. She expressed concern about the proximity to Chapel by the Sea, noise from the pumps, smell, disposal of clam shells, lack of follow-up to insure this is not a commercial operation, impact to the wetlands, chemicals used to cleanse the clams, clam excretion, and lack of septic facilities. She stated the residents have been told the Woodfords will build a residence to meet the needs for the conditional use permit; and she finds it difficult to believe that they would spend that much money to have a small business. She commented on declining salinity; and stated they do not want this to happen to the South Beaches.

Henry Wardwell described his property and additional property he was forced to sell because he could not fill the wetland areas; stated he cannot access the river because the last few feet is wetlands and mangroves; and advised of preservation of properties and downzoning. He advised of denials of permits and development proposals; and expressed concern that the Board would open the door to a commercial enterprise in a residential neighborhood. He expressed concern about a commercial dock, noise pollution, fire protection, and lack of residence on the subject property.

Commissioner Voltz inquired if Mr. Wardwell had been able to get a permit to fill in his wetland, would he have built there; with Mr. Wardwell responding probably.

Angela Schofield stated she was the previous owner of this property; advised it is a sanctuary for wetlands, birds, manatees, dolphins, and an alligator; and spoke in opposition to the conditional use permit.

Commissioner Voltz inquired why Ms. Schofield sold the property; with Ms. Schofield advising it was given to her husband in a divorce settlement, and she owns the piece to the south.

Mr. Woodford stated the original application was for a five-horsepower pump because he thought that was the maximum he would ever need; all he has ever used in the past were two-horsepower pool pumps; and suggested a noise limit be set. He noted the pumps he uses are the same as those that are installed in jacuzzis; they are designed to be quiet; and his neighbors at his present location have voiced no objection. He stated the commercial designation on the dock and driveway is not related to the CUP, but to supporting the lease in the river; he is only allowed to use the seed from the hatchery to plant on his own lease; and since he is not allowed to sell the output of the hatchery, it is not commercial. He stated he is sympathetic to those who cannot fill their wetlands; and the only thing he is trying to do is extend a strip of fill along the edge far enough to allow him to drive down the lot, which is a minimal impact. He stated the fears about odor are unfounded; the CUP and other County Ordinances impose restrictions to protect nearby residents; he has provided letters from people who have lived near such a facility advising they have no objections; and Code Enforcement has received no complaints from existing aquaculture facilities. He stated they meet all the requirements in Ordinance 93-26; he has explained how this Ordinance protects the rights of nearby property owners; the Board has heard excerpts from letters from neighbors who have no objections to living near such a facility; but what the Board has not heard, from those objecting to the CUP, is any substantiation, logical argument, or evidence to back up their claims that he would degrade property values or cause other problems. He stated he understands the concerns because there is no house on the property; he intends to build a house, but objects to building it first; and advised of the financial risk. He requested if the Board finds that the house is a necessary requirement for granting a CUP, that it grant the CUP subject to the nursery/hatchery not being put into operation until a house is built, a certificate of occupancy is issued, and he or a family member occupies the house; and if it is the intent of the Ordinance, he will meet the intent as well as all stated requirements.

Commissioner Higgs advised only she and Chairman Scarborough were on the Board when the Ordinance was developed, and Chairman Scarborough voted against it; described the atmosphere in 1993 when the Ordinance was adopted; and stated they always presupposed the workplace as a part of the home, and there was no discussion about the accessory structure predating the house. She stated the argument that the house must exist before the Board can consider the CUP is a valid argument. She stated the State enacted a large number of leases in this area; and approximately 25 to 30 leases are now being worked. She expressed concern about the number of stakes, boats without lights, iron markers and other impediments to navigation; and stated she questions what the State is doing in enforcement activities. She stated a number of things have happened since the Board considered the CUP; and it is part of what needs to be considered before the Board votes tonight. She stated there has been discussion about commercial and industrial uses in wetlands; there are impacts to the wetlands by this activity; when the Ordinance was developed, it said there would be a home and abutting the home, within the same setbacks, there could be an aquaculture operation if someone had a lease; and the idea that it would impact wetlands or be there before the house was never considered. She stated there is only one other residential professional building in the area which is a long-existing real estate property; the commercial operation is not consistent with the character of the area; there is potential for others to request a similar CUP; and enacting other CUP's may have considerable impact on the character of the area. She reiterated her concern about lack of enforcement; and stated based on the evidence as well as her knowledge of the intent of the Ordinance, this is an inappropriate CUP to issue, and should be denied.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to overturn the P&Z recommendation and deny Item 1.

Commissioner O'Brien stated he is still disturbed about what the State did; the leases were tied to the net ban; but out of the 41 leases, only one was for a net fisherman. He commented on the noise issue; stated he can barely hear his 2-horsepower swimming pool pump; and people will not hear the pumps 500 feet away. He stated he understands some of the people do not want any commercial industry in the neighborhood; and that is what this is all about.

Commissioner Voltz inquired which part of the CUP standards did Mr. Woodford not meet; with Commissioner Higgs responding compatibility with character of the area and no existing house. Commissioner Higgs stated she does not see how the Board can consider this without the house being there. Commissioner Voltz stated the Board approved a CUP for alcohol for Mr. Platt several months ago, and he did not even have a building on the property; and inquired if the Board should consider the wetland issue in regard to the CUP request. Assistant County Attorney Eden Bentley responded for conditional use permits, the Board can consider the character of the land use of the properties surrounding the property being considered. Commissioner Voltz inquired if Mr. Woodford ever invited the neighbors to visit his industry; with Mr. Woodford responding affirmatively, but no one came.

Commissioner Voltz stated on Tuesday the Board discussed an issue which the LPA unanimously turned down; and Chairman Scarborough stated he trusted the LPA's judgment. Chairman Scarborough stated the gentleman who was before the Board thought the Board was just talking about his project, but the Board was talking about an overall ordinance; the speaker addressed one particular case, but the LPA looked at the issue as a whole; and he thought it was fair to send it back so the speaker could address the LPA's concerns. Commissioner Voltz stated the Board trusted the LPA that sent the recommendation; and in this case the P&Z Board gave this its unanimous support.

Chairman Scarborough stated some of the most expensive properties are on the waterways, and this activity would probably interfere with quality of life; and commented on the Board's discussion regarding placement of sheds. He stated this commercial activity is being allowed in a residential area; since there is residential all the way around it, the Board needs to be careful that this is an accessory use to a residential activity; and this is being moved from something that is barely noticeable to the primary thrust of the property. He stated it is the wrong way to proceed; and he is prepared to readdress the entire Ordinance.

Commissioner Carlson stated the Board needs to readdress the Ordinance; the Board should not think of issuing a CUP until there is a certificate of occupancy; and the operation does not fit with the community, so she cannot support the CUP.

Commissioner Voltz stated she does not have a problem readdressing the Ordinance; however this request comes under the current Ordinance.

Chairman Scarborough called for a vote on the motion to deny. Motion carried and ordered; Commissioners Scarborough, Higgs, and Carlson voted aye; Commissioners O'Brien and Voltz voted nay.

Commissioner Higgs stated she is sympathetic to the needs of aquaculture and agriculture; and she has asked the County Manager and the Parks and Recreation staff to look at the possibility of locating some limited aquaculture activities at Long Point Park. She stated the Board might consider leasing land to aquaculturists; and the Woodfords have talked to Mr. Nelson. She stated it would allow some revenue to the County; it would not interfere with park activity; and it would allow some aquaculture activity.

Chairman Scarborough encouraged the Woodfords to work things out that way.

Item 2. (Z9902501) G & D Developers, L.C.'s request for change from RU-2-10 to BU-1-A on 0.48 acre located on the northwest corner of Pine Tree Drive and Highway A1A, which was recommended for denial by the Planning and Zoning Board and tabled by the Board of County commissioners on March 4, 1999 to its April 8, 1999 meeting.

George Papp, representing G&D Developers, L.C., stated the original request to change from RU-2-10 to BU-1-A was denied by the Planning and Zoning Board; there were quite a number of residents who strongly objected to the property being given a business classification; and he was surprised because A1A is a busy commercial area. He stated he can understand the concerns because once it is zoned for business, anything can go in there; the Board has the authority to grant a lesser classification; and requested the Board leave it as residential multifamily upgraded from medium to high density. He stated this would satisfy everyone; it is a residential neighborhood; and there would be no concern about it becoming a business.

Commissioner Voltz stated she is not sure what Mr. Papp is talking about; with Zoning Official Rick Enos responding Mr. Papp may be talking about RU-2-12 or RU-2-15. Mr. Papp stated it is currently RU-2-10; and he is requesting RU-2-30, which would be 15 units on the half acre. Mr. Enos stated it is 30 units to the acre, which is high density; and RU-2-15 and RU-2-12 are medium density. Discussion ensued on the number of units that could be put on the property.

Attorney Bentley stated the way the item is advertised, it could be dropped down to BU-1-A, but could not increase residential density without readvertising. Mr. Papp stated Planning and Zoning staff gave him the impression he could do that. Chairman Scarborough stated it can be done, but would have to be readvertised. Mr. Papp inquired if he has to start from scratch again; with Chairman Scarborough responding yes. Chairman Scarborough stated since the applicant is considering going through the process again, the speakers may want to address the current application and what Mr. Papp is proposing.

Joyce Straight expressed opposition to the rezoning based on concerns about traffic and lighting.

James Devine expressed opposition to the zoning change which would result in blocking the breezes. He advised of his objection to commercial due to danger and water drainage.

Wendell Koontz stated if the property was commercial and downgraded to residential, the Board would be hearing screaming from the applicant; and that is the same feeling the surrounding residents have as they bought residential property. He advised the area does not have highway commercial development; and the residents would like to preserve the residential flavor.

Taira Nelson, representing residents of the area, advised of the character of the area as a residential community when her property was purchased; and expressed concern about the increased traffic. She stated her home has been robbed and vandalized; and there was an accident in front of her house. She stated if commercial is approved on this property, it will be one more traffic problem; outlined the businesses in the area; and expressed concern about safety issues with traffic.

Joyce Cote described the area, problems with speeders, and problems with A1A. She expressed objection to the change in the zoning request; and stated the community is willing to meet with Mr. Papp.

Commissioner Voltz inquired how many units would be allowed under RU-2-10; with Mr. Enos responding it would be five units on a full half-acre, but Mr. Papp has slightly less than that, so it would probably be four units. Mr. Enos stated RU-2-12 would allow five units; RU-2-15 would allow seven; and RU-2-30 would allow 14, but he doubts that could be fit on the property, given the setbacks and the 35-foot height restriction.

Mr. Papp stated one speaker was concerned about a breeze; right now there is foliage; and he cannot possibly be getting a breeze through that area. He stated any problems with drainage or retainage will be his problems; and he will have to meet all the Code requirements. He stated people expressed concerns about safety, but people who live in condominiums are as good as people who live in residences; and his zoning change will not make the current speeding situation any worse. He stated another speaker said he was not given the facts, but he was given all the facts. He stated he asked for commercial zoning; but based on the comments of the speakers and the negative reaction to the zoning change, he is willing to downgrade and keep it residential. He stated an apartment or condominium is not commercial; it is residential; and he does not know if any of the objections are valid. He stated RU-2-30 is the best use of the property, and keeps it residential.

Commissioner O'Brien inquired if Mr. Papp presently owns the property; with Mr. Papp responding yes. Commissioner O'Brien inquired what was the property zoned when Mr. Papp purchased it; with Mr. Papp responding the same as it is now.

Commissioner Voltz stated she cannot support going to RU-2-30; going to RU-2-12 only results in a difference of one unit which is not much difference; and if the applicant desires, she will facilitate a meeting with the residents. She stated the Board cannot do anything tonight because she will not approve BU-1-A, and she will deny the item. She stated Mr. Papp will have to start all over again; and if after meeting with the neighbors, Mr. Papp has a good feeling about going for RU-2-12, then he can come back. Mr. Papp inquired about RU-2-15; with Commissioner Voltz responding she does not know how it could fit on the property. She noted there is a lot of traffic trying to get out of the side streets onto A1A; and described the problems. Mr. Papp stated everyone will not be coming and going at the same time; with Chairman Scarborough noting this is beyond the scope of the item being considered.

Motion by Commissioner Voltz, seconded by Commissioner O'Brien, to deny Item 2 as recommended by the P&Z Board.

Commissioner Higgs stated looking at the map, she has to vote for denial; and she wonders about any increase in density at all; with Commissioner Voltz agreeing. Commissioner Voltz stated Mr. Papp will meet with the residents to see if he wants to come back.

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

Mr. Enos inquired if it is the Board's intent to waive the reapplication time; with Chairman Scarborough responding he did not hear that. Chairman Scarborough stated if something evolves, and Commissioner Voltz wants to do that, she will bring it back. Commissioner Voltz requested Mr. Papp call her office to set up the meeting.

The meeting recessed at 7:07 p.m. and reconvened at 7:30 p.m.

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATIONS OF MARCH 1, 1999

Chairman Scarborough called for the public hearing to consider recommendations of the Planning and Zoning (P&Z) Board made at its public hearing on March 1, 1999, as follows:

Item 1. (Z9903101) Removed from Agenda.

Item 2. (Z9903102) Removed from Agenda.

Item 3. (Z9903103) Kenton M. and Connie Jean Pontius' request for change from AU to AGR on 8 acres located on the south side of Highway 50, approximately 1.63 miles west of I-95 which was recommended for approval by the Planning and Zoning Board.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to approve Item 3 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 4. (Z9903104) Removed from Agenda.

Item 5. (Z9903201) J.J.K. LC Company and Heinz Knobel's request for CUP to add goats to an existing CUP for horses in an SEU zone currently having a CUP for horses, a barn and a heliport on 15.7 acres located on the west side of South Tropical Trail, approximately 0.32 mile south of Tequesta Harbor Drive, which was recommended for approval by the Planning and Zoning Board.

Rene? Shaffer stated she lives to the north of Mr. Knobel; commented on Mr. Knobel's comment that people are picking on him because he is not a citizen; and advised both she and her husband are naturalized citizens. She advised of her background and reasons for the purchase of her property; and expressed objection to the constant adding of animals to Mr. Knobel's property. She stated Mr. Knobel approached her a couple of years ago about four horses; and she agreed, as long as the smell and flies did not get bad. She stated she agreed when Mr. Knobel got a helicopter; but when she moved here for retirement, she did not want to move to a zoo. She stated it is time to cut it short; besides the horses, there are geese, sheep and goats; and inquired how much more will they have to tolerate. She advised of problems with flies, lowering of property values, and desire for peace and quiet.

Heinz Knobel stated Florida is an animal paradise; and if someone does not like animals, they should not move to Florida. He stated he has four horses on sixteen acres; others have six horses on five acres; and commented on the horsefly problem. He stated he applied for additional goats under the CUP; two years ago, the Board approved two cows on property not even half the size of his; and the Board approved another property exactly five acres with no numbers of horses. He stated he will give the County no more problems; he has given away his goats, and reduced the number of horses; and he will also move. He advised of his support for the community; stated he is disappointed; expressed appreciation to Commissioner Voltz and Commissioner Higgs; and commented on the County's limit on animals.

Commissioner O'Brien stated if Mr. Knobel is going to be leaving, he cannot see a good reason to grant approval tonight. Chairman Scarborough inquired if Mr. Knobel is withdrawing his request. Commissioner O'Brien noted the goats are already gone. Mr. Knobel stated he will sell his property, but there are still animals on the property. Chairman Scarborough inquired if Mr. Knobel still wants the Board to consider his application; with Mr. Knobel responding yes, he paid almost $2,000 to be approved for two goats. Commissioner O'Brien inquired if the goats are still on the property; with Mr. Knobel responding there is still one baby goat, but they gave away the other two goats. Commissioner O'Brien inquired if Mr. Knobel submitted a concept plan; with Mr. Enos responding affirmatively. Commissioner O'Brien stated he is sorry Mr. Knobel wants to move.

Motion by Commissioner O'Brien, to approve Item 5, limited to two goats on no less than the present 15 acres, and if the property is broken up, the CUP would not be effective.

Attorney Bentley stated it can be restricted to this particular size property, and if it is diminished in size, the CUP would expire upon alteration of the lot size.

Commissioner O'Brien inquired if Mr. Knobel wants to build a barn; with Mr. Knobel responding no, he is only requesting what others have on five acres. Mr. Knobel stated the Board approved animals for others in the past; in his case, the Noise Ordinance has been used against him; he is still the property owner; and if the Board is not going to approve the goats, it has to give him a reason for the denial. He stated other people have been approved for six animals, either horses, goats or mules; no number is given as to which type of animals; that is his request; and it is his legal right.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to approve Item 5, adding two goats to the present Conditional Use Permit on not less than the present 15 acres, limited to two goats, with the CUP to expire upon alteration of the size of the parcel to less than 15 acres.

Commissioner Higgs stated she is confused as to the request. Mr. Knobel stated the CUP he applied for was an additional CUP for two goats; he has been approved for four horses; and now Commissioner O'Brien is trying to limit it by having fifteen acres for two goats, but the Code allows six animals on five acres, either horses, mules or goats. Commissioner Higgs stated Mr. Knobel has a CUP for four horses, and the Board is adding the two goats, which is six animals. Mr. Knobel stated it is limited to two goats; he does not like to be limited; and he wants the right to six animals, goats, mules or horses. Chairman Scarborough inquired if there is a problem with that; with Commissioner O'Brien responding no.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to amend the motion and approve a CUP for six grazing animals within the Codes of the County.

Commissioner Carlson inquired if this is an additional CUP on the same property. Commissioner Higgs stated she does not know if that can be done based on the advertisement. Attorney Bentley advised the Board is running into problems; the advertisement is for a CUP for goats; and someone who might have an objection to six horses as opposed to four horses and two goats would not be on notice. Commissioner Carlson inquired how many animals are permitted per five acres; with Mr. Enos responding Section 62-1935 provides that horses, mules or goats are allowed in the SEU classification, a maximum of six such animals per parcel of land, with a five-acre minimum, and the application shall specify the number of each animal. Mr. Enos stated based on that staff advertised this as an expansion of the existing CUP to add two goats to the existing CUP for four horses. Mr. Enos advised it is six animals per parcel no matter how big it is. Chairman Scarborough stated the problem is the animal variety has to be specified; that is what has been advertised; and while the Board does not have a problem doing what Mr. Knobel requests, it is restricted in doing that.

Mr. Knobel stated he only wants to stop calls to Code Enforcement; his neighbors do not like the animals; and Code Enforcement has better things to do than come to his place to count his animals.

Commissioner Higgs stated the Board does not have any choice because of the way it was advertised, and it is stuck with two goats. Chairman Scarborough stated it has to be advertised that way because the Ordinance requires specification of animal variety. Mr. Enos stated people may not have a problem with goats but have a problem with horses, or vice versa; so the Code requires the applicant to specify the animal.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to amend the motion and approve adding two goats to the existing CUP for horses, with the CUP to expire upon change of size of parcel to less than 15 acres. Motion carried and ordered unanimously.

Discussion ensued on reviewing the Ordinance, other animals, and a special Animal Control Commission.

Item 6. (Z9903202) Glenn Edward and Donna Lee Northcraft's request for change from RR-1 to AU on 3? acres located on the south side of East Crisafulli Road, approximately 1.25 miles east of SR 3 which was tabled to the April 5, 1999 Planning and Zoning meeting and May 6, 1999 meeting of the Board of County Commissioners as the applicant was not present, with no reprocessing fee required.

Motion by Commissioner O'Brien, to table Item 6 to the May 6, 1999 Board of County Commissioners meeting as recommended by the P&Z Board.

Commissioner Higgs inquired if that action is consistent concerning the reprocessing fee. Commissioner O'Brien stated the applicant was not present. Mr. Enos stated typically when the applicant is not present, there is a reprocessing fee; however, the Board can waive that. Commissioner Higgs inquired if there was a particular reason the applicant was not present; with Mr. Enos responding he will have to check the minutes. Chairman Scarborough stated he is concerned if there is no reason. Commissioner O'Brien stated there must have been some reason he was not there; and he has already paid the money. Chairman Scarborough stated the Board does that in many cases when they have to come back; and the Board usually waives the fee with reason. Mr. Enos stated there was no indication from the applicant that he would not be there, but the motion was for no reprocessing fee with no reason given.

Commissioner Voltz seconded the motion. Motion carried and ordered; Commissioners O'Brien, Carlson, and Voltz voted aye; Commissioners Scarborough and Higgs voted nay.

Chairman Scarborough requested the next time that happens, staff contact the applicant to see if there is a reason.

Item 7. (Z9903301) James R. and Patricia W. Boates' request for change from RR-1 to AU on 2.57 acres located on the east side of Brabrook Road, approximately 300 feet north of Grant Road, which was recommended for approval by the Planning and Zoning Board.

Motion by Commissioner Higgs, seconded by Commissioner Voltz, to approve Item 7 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 8. (Z9903401) Federal Trust Bank, F.S.B.'s request for change from BU-1 to BU-2 on 19.11 acres located on the southwest corner of Friday Road and SR 524 which was recommended for approval by the P&Z Board for BU-2 with a Specific Use for a Truck Stop, and BU-1 uses on a 10-acre tract excluding the north 200 feet which is to remain BU-1, as well as the balance of the parcel south of the proposed BU-2 zoned area, and removal of rezoning request on the westerly 50 feet as amended by the applicant.

Elizabeth Camp, President of Camp Oil Company, stated they have 19.1 acres under option from Federal Trust Bank; and introduced Director of Construction Matt McCure and Architect Alice Schultz. She stated the property is one-quarter mile off I-95 on SR 524; it is currently undeveloped; and they hope to develop it as a travel center. She stated when they were before the Planning and Zoning Board, they said it was a truck stop; but it is a mixed use retail facility which will have a convenience store, restaurant, gasoline sales, recreational vehicles, and in the back truck diesel service. She stated for the most part BU-1 is the correct zoning; but two issues came up which made them think part of the site should be BU-2. She stated BU-1 contemplates retail; they are primarily retail; and the only activities they anticipate which would require BU-2 would be parking of long-haul trucks. She stated the parking is incidental to the business; they do not anticipate long-term parking; they anticipate being a 24-hour facility; and truckers need to rest. She stated the other BU-2 activity would be a truck tire repair facility; it is done as a service to commercial customers; and the State of Florida requires it to get on the highway logo signs. She stated they requested the center of the property be zoned BU-2 and the rest remain BU-1; and they will be able to position the facility so that the uses will be placed in the correct zoning. She stated her company has been marketing in Brevard County for 15 years; they are responsible developers and merchants; and they have specified the BU-2 use will only be for the travel center. She stated they would improve the site in terms of lighting; they will be open 24 hours a day which should make the intersection safer; and indicated desire for a traffic light at that location. She stated there is some residential TR-1 on the south; there is a natural buffer which is an FP&L easement; and there is one trailer there now, so it is not heavily populated. She stated there is residential zoning to the west, which is undeveloped; there is BU-2 across the street which is a mobile home sales; and there is BU-1 across the street as well. She stated this was unanimously recommended for approval by the P&Z Board; and because they are going to develop the property in connection with one plan, it will be a more responsible development for this area than if it was subdivided with separate driveways.

Commissioner Carlson stated directly across from SR 524 is the Lost Lakes Subdivision; and inquired how many residences are there; with Mr. Enos responding over 100, possibly 200 or more. Commissioner Carlson stated Lost Lakes has only one outlet, and that is on SR 524; and expressed concern about big trucks and the lack of a traffic light. She stated if this is developed, she would like the applicant to contribute for a traffic light, as the proposed zoning will increase the load on that road upwards of 3,000 trips.

Ms. Camp stated the driveway situation is controlled by the Department of Transportation; this is simply a first step to make sure it can be zoned; and then they will proceed to get other permits. She noted there are also wetlands; and they will have to get all appropriate permits before they can develop it. She stated FDOT will require them to do things to minimize traffic congestion; it is normal to require acceleration and deceleration lanes, and they have budgeted for that; and they would love to see a traffic light there, but have no control over that. She stated they can request a traffic study as a first step, but FDOT has its own criteria, and individuals cannot request a light even if they are willing to pay for it. She stated they do not want to interfere with traffic on the road; and they will want ingress and egress to minimize negative impact. She stated it is a large site, and a lot of the stacking and things that cause problems on the road will occur on site; but it is in the hands of FDOT.

Commissioner O'Brien stated he gets on I-95 at that intersection twice a week; the ramp is short, and there is a bridge going over SR 524; and advised of problems with trucks. He stated less than one mile from that ramp is the off-ramp for Expo; and advised of problems with trucks slowing down to get off. He stated this is setting up a terrible human catastrophe; and expressed concern about personal safety of tourists and residents. He stated he would like to see a study from FDOT to determine if this is compatible with the ramps on and off I-95; and if the ramp should be extended, that is something FDOT should consider.

Commissioner Voltz inquired if a traffic study would include on and off ramps. Ms. Camp stated she has no control over the interstate system; they have the same problem in Georgia; and FDOT will determine where it will improve a ramp or where it will not, based on the increased traffic in a given area. She stated traffic will increase in that area whether her site goes in or not because it is a growing area; she would love to see FDOT improve the exits; but she cannot control FDOT.

Commissioner O'Brien stated in the next 10 to 15 years traffic will increase at this intersection; and his concern is public safety. He stated the Board has a responsibility to consider that; and he hopes Commissioner Carlson will consider tabling this to get a study. Ms. Camp stated she has no way of doing that, and her option runs out in a couple of weeks; everybody is concerned about traffic; the taxes she will collect from selling gasoline and diesel fuel will come back to the County in the form of road improvements; and advised the travel center in Yulee, Florida was the largest taxpayer in that county, and virtually paved Fernandina Beach. She stated she has no way of forcing infrastructure improvements; nobody does; but the tax base is set up to provide the infrastructure improvements.

Commissioner Voltz inquired if Ms. Camp is going to do a traffic study; with Ms. Camp responding she does not do that; but she can request one from FDOT. Ms. Camp stated the Board is right to be concerned about public safety; but the expert on the specifics of traffic is FDOT. Commissioner Voltz inquired if FDOT will look at the ramps knowing a truck stop is being put in; with Ms. Camp responding yes, it will look at the development. Commissioner Voltz stated if FDOT says the ramps need to be extended or widened, is Ms. Camp willing to pay for that. Ms. Camp responded it is an economic issue at that point; and advised of contributions made to build a travel center in Kentucky. Ms. Camp stated FDOT will do the study; they almost always require acceleration and deceleration lanes, which they factor in; and it would be unusual, but not unprecedented to improve an exit ramp.

Jere Carrick, representing Lost Lakes Resort, stated there are currently 250 residents with a potential of 750 more; they own 250 contiguous acres between SR 524 and SR 520, 450 acres between their development and Adams Road, and 100 acres in Lost Lakes Resort; and the travel center will be a plus. He stated they have spent more than $4 million in developing their project and the property around it; and advised of their intent. He stated they had an environmental study of the acreage Ms. Camp is considering; and they got a very negative opinion that 17 of the 19 acres were wet and sensitive, although there could be mitigation. He stated they do not necessarily oppose the zoning change, but do oppose the specific use within the zoning change, specifically the truck stop. He stated if the truck stop is an incidental thing to the travel center, he would suggest it be omitted. He stated areas around truck stops usually depreciate; there is a truck stop at SR 520; and advised of noises from trucks. He stated they have addressed the issue of a traffic light with FDOT; there have been approximately 40 major accidents in the last two years, many caused by County vehicles; and advised of difficulty in controlling cars on the off-ramp. He advised one of the residents has been killed, and three have been critically injured there. He voiced opposition based on smell, pollution, appearance, aesthetic value, constant traffic, and noise; stated Cocoa Expo draws approximately 48,000 children per year; and they oppose the facet of specific use for trucks.

Commissioner O'Brien inquired if Lost Lakes appeared before the Board requesting the Oleander Power Plant not be permitted; with Mr. Carrick responding yes due to aesthetics and pollution. Commissioner O'Brien advised a truck stop may have 100 diesel trucks per day.

Chairman Scarborough stated he gets off at SR 50, and there is a truck stop there; FDOT has done a study on that interchange; the City of Titusville hired retired FDOT employees; merchants got involved; and they have not solved that problem. He stated the truck stop has a right to be there; bringing in planning after the fact just makes consultants wealthy; but if it does not belong there, it does not belong there. He stated the answer is not to have FDOT to do a study; the answer is that it does not belong there. He stated the only thing that will get SR 50 to work is for someone to buy the truck stop and put something compatible there; but until that happens, there is potential for frequent accidents.

Ms. Camp displayed pictures; and described a modern travel center, which appears from the road to be a restaurant/convenience store combination with fuel sales in the rear. She stated she cannot specifically address the safety concerns; that is a function of the FDOT; and if infrastructure is needed, the Board would want the travel center to be there to fund it and to have a developer to widen the roads and potentially improve the exits as a condition of going in there.

Chairman Scarborough inquired if Ms. Camp would have a project if the Board limited it to only automobiles and no diesel fuel; with Ms. Camp responding it would not be economically feasible. Chairman Scarborough stated that is the only way he could approve it, but other Commissioners may be ready to vote in favor. He advised of problems with trucks and getting FDOT to take action.

Commissioner Voltz stated she does not know what the area is like, but if it is as bad as Commissioner O'Brien says it is, the Board may not want to allow it, until a study is done and improvements made.

Alice Schultz, Architect, stated she was hired by Camp Oil to look at the feasibility of the project; and a couple of things have been discussed this evening that appear to be in conflict with the Planning and Zoning staff review. She stated when they were considering the initial application, they looked at the whole site to change from BU-1 to BU-2; an evaluation was done; they discussed the level of service of SR 524; and staff advised they were moving from level of service A to B, and the current infrastructure would support it. She stated the applicants have amended the request from 19.1 acres to just under 10 acres for BU-2, with the stipulation that the only uses will be those incidental to having a large retail convenience store and diesel fueling. She stated the consensus at the Planning and Zoning Board hearing was that most highway accidents are caused by drivers who fall asleep; recently the federal Department of Transportation closed two rest areas on I-95; and rest areas further south are backed up, with trucks parking on the shoulder of the interstate. She stated the comment at the Planning and Zoning Board hearing was that the County may feel a responsibility to designate where it wants truckers to park. Chairman Scarborough stated Commissioner O'Brien has pointed our locations are needed where there are long acceleration and deceleration lanes, as opposed to the older ramps; drivers on I-95 accelerate and decelerate to get into the correct lane to exit; and truck traffic coming onto SR 524 would make the traffic even more complex.

Commissioner Higgs suggested getting information from the MPO and Traffic Engineering so the Board will have statistical information on the length of the ramps, number of trucks, etc., and have that data in the record. She stated in the past the Board has failed to have some of the necessary evidence in the record; and it may be prudent to get the data and put it in the record. Chairman Scarborough stated Ms. Camp said the option expires in two weeks, so the issue may be moot for this applicant. Commissioner Higgs stated the applicant has other options, and she just wants to be sure the Board follows good procedure.

Commissioner Carlson inquired about other truck stops around the area; with Mr. Enos responding there are two that he is aware of, one at SR 520, and one at SR 50. Commissioner Carlson stated she understands about the economics and taxes, but the Board needs to safeguard the community before economics plays a part in it. She stated the facility can be put in place, but FDOT works very slowly, and this may be setting up the possibility for major accidents. She stated Lost Lakes is a community of senior citizens, and the change will impact them; it is strongly incompatible with the surrounding areas, and safety is a big issue.

Motion by Commissioner Carlson, seconded by Commissioner O'Brien, to overturn the P&Z Board's recommendation and deny Item 8. Motion carried and ordered. Commissioners Scarborough, O'Brien and Carlson voted aye; Commissioners Higgs and Voltz voted nay.

Commissioner Voltz and Commissioner Higgs advised of the need to get the information in the record.

Item 9. (Z9902103) Ray Maurer's request for change from GU to ARR on 2 acres located on the north side of Outback Road, approximately 0.25 mile west of Satellite Boulevard, which was recommended for approval by the Planning and Zoning Board.

Motion by Commissioner Voltz, seconded by Commissioner Scarborough, to approve Item 9 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 10. (Z9902202) International Master Builders, Inc.'s request for a Small Scale Amendment (99S.1) to change the land use designation from Residential to Mixed Use District on the Future Land Use Map, and change from RU-2-15(11) to BU-1 on 7.29 acres located on the northeast corner of Lake Drive and Burnett Road which was recommended for approval by the Planning and Zoning Board; and the LPA approved the Small Scale Plan Amendment.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to adopt Ordinance amending Article III, Chapter 62, of the Brevard County Code, entitled "The 1988 Comprehensive Plan", setting forth the First Small Scale Plan Amendment of 1999, 99S.1, 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 XVIII (G), entitled The Future Land Use Map Appendices; and provisions which require amendment to maintain internal consistency with these amendments; providing legal status; providing a severability clause; and providing an effective date; and approve Item 10 as recommended by the P&Z Board. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: PORT ST. JOHN DEPENDENT SPECIAL DISTRICT BOARD RECOMMENDATIONS OF MARCH 3, 1999

Chairman Scarborough called for the public hearing to consider the recommendations of the Port St. John Dependent Special District Board made at its March 3, 1999 meeting, as follows:

Item 1. (PSJ90301) Sammy J. Carpenter's request for change from RU-1-7 to TR-1-A on 0.25 acre located on the south side of Clear View Drive, approximately 350 feet west of U.S. 1, which was recommended for approval by the Port St. John Dependent Special District Board.

Motion by Commissioner Voltz, seconded by Commissioner O'Brien to approve Item 1 as recommended by the Port St. John Dependent Special District Board.

Brenda Carpenter stated she missed the last meeting by three days; she has waited three months; she lives in a 20-foot by 30-foot house; and she wants this trailer. She inquired how long will it be before she can get something, and what should she do next. Chairman Scarborough stated there is a motion to approve this; and Mr. Enos will advise what should be done next. Mr. Enos stated the next step is to make application for a building permit; and that can be done tomorrow.

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

Item 2. (PSJ90302) Brevard County Board of County Commissioners' request for change from GU to GML(P) on 192.70 acres located at the west terminus of Fay Boulevard, which was tabled to the April 7, 1999 Port St. John Dependent Special District Board meeting and May 6, 1999 Board of County Commissioners meeting with reprocessing fee required.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to table Item 2 as recommended by the Port St. John Dependent Special District Board. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING LAND DEVELOPMENT REGULATIONS PROPOSED BY MERRITT ISLAND REDEVELOPMENT AGENCY

Chairman Scarborough called for the public hearing to consider an ordinance amending Land Development Regulations proposed by the Merritt Island Redevelopment Agency.

There being no objection heard, motion was made by Commissioner O'Brien, seconded by Commissioner Voltz, to adopt an Ordinance amending Chapter 62, "Land Development Regulations", Code of Ordinances of Brevard County, Florida; amending Section 62-1829 by adding conditions and referencing a conditional use permit for "automobile sales and storage" in the Merritt Island Redevelopment Area; adding a new Section 62-1909 creating a conditional use permit for "automobile sales and storage" for sites in the Merritt Island Redevelopment Area under one acre in size; amending Section 62-1483(3) by adding "automobile sales and storage (under one acre in the Merritt Island Redevelopment Area)" to the list of conditional uses in the BU-2 classification; amending Section 62-1833.5(b) by clarifying conditions for "contractors; offices, plants and storage yards" in the Merritt Island Redevelopment Area; amending Section 62-1837.3 and deleting Section 62-1844 to consolidate similar uses under title "building materials and supplies", and amending conditions; amending Section 62-1483 consolidated permitted uses in the BU-2 classification by adding "building materials and supplies" and deleting "lumber yards" and "tinsmith, roofers, plasters, plumbers and electricians"; amending Section 62-1845 by clarifying conditions for "warehouses" in the Merritt Island Redevelopment Area; amending Section 62-1482 by reducing required front setbacks on certain lots in the Merritt Park Place Subdivision of the Merritt Island Redevelopment Area; amending Section 62-3206 by adding restrictions to the location of parking facilities in the Merritt Park Place Subdivision located in the Merritt Island Redevelopment Area; amending Section 62-3316(b)(4) by reducing sign setbacks in the Merritt Park Place Subdivision located in the Merritt Island Redevelopment Area; amending Section 62-3316(b)(2) by reducing maximum sign surface area in the Merritt Park Place Subdivision located in the Merritt Island Redevelopment Area; providing for conflicting provisions; providing for severability; providing for area encompassed; providing an effective date; and providing for inclusion in the Brevard County Code. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING SETBACKS FOR ADMINISTRATIVELY REZONED LOTS

Chairman Scarborough called for the public hearing to consider ordinance amending setbacks for administratively rezoned lots.

There being no objections heard, motion was made by Commissioner Higgs, seconded by Commissioner Voltz, to adopt an Ordinance amending Chapter 62, "Land Development Regulations", Code of Ordinances of Brevard County, Florida; amending Article VI Section 62-1188 (7) by reducing setbacks of certain lots that are administratively rezoned; providing for conflicting provisions; providing for severability; providing for area encompassed; providing an effective date; and providing for inclusion in the Brevard County Code. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING CHAPTER 62, SECTION 62-507, APPEALS AND VESTED RIGHTS

Chairman Scarborough called for the public hearing to consider ordinance amending Chapter 62, Section 62-507, Appeals and Vested Rights.

Commissioner Higgs requested the Attorney provide information on vested rights and appeals.

Assistant County Attorney Eden Bentley stated if someone is going through the process, has received a preliminary permit and expended money in reliance on the permit, and something subsequently happens such as an Ordinance change, that person will feel as if he or she has some right to proceed, which is called vested rights; and the Ordinance is the way for people to come to the Board to request such a determination. She stated there are always debates about whether or not the people have met the requirements of having relied on the permits and expended a sufficient amount of money; the Ordinance does not give the Board the right to go to someone who has built a house and take away their rights to the house; but it does allow the property owner to come to the Board for his rights to be recognized; and it is a way to avoid court action if the Board agrees with the permit holder or property owner. She stated the Ordinance was reviewed for some other issues a few months ago; a vested rights claim could be denied based on imminent peril to the public; imminent peril is not defined in case law very well; and suggested the language be changed to public nuisance rather than negative impact to the public because public nuisance is well defined in case law. She stated the advertisement was specific containing the language presented in the Code going from imminent peril to negative impact, and if the Board wants to go with public nuisance, it will be necessary to readvertise.

Commissioner Higgs stated prior to implementation of this section of the Code, someone who felt they had been treated unfairly by the County had to go straight to court, but this provides an opportunity for the Board to resolve the problem. Commissioner Higgs inquired if the Board wants to do something different, will it have to readvertise; with Ms. Bentley responding yes.

Chairman Scarborough stated a person has a vested right because Florida law has established this concept that if things are done in reliance, the doctrine of equitable estoppel exists; and inquired if the Ordinance increases or decreases those basic rights. Ms. Bentley stated the Ordinance tracks the language of the case law, and does not change it much; and the property owner would still have the opportunity to go to court and claim equitable estoppel. Commissioner Voltz requested Ms. Bentley define equitable estoppel for the public. Ms. Bentley stated equitable estoppel is similar to vested rights; and explained the doctrine of equitable estoppel.

Commissioner Voltz inquired if it is normally something that is the County's fault. Chairman Scarborough stated the difficult ones go to the equitable estoppel issue, that the County has said something the individual could rely on and that could be a mistake. He stated the Board has always asked whether there is a verifiable mistake and whether there was reliance; and that reliance is expenditure of money which is easy to establish. He stated in a clear vested rights case a lot of things have taken place; but the gray area is when a person comes to the Board saying he talked to staff, but staff, which talks to thousands of people, really does not remember.

Commissioner O'Brien advised of his experience with vested rights for Sunny's Discount.

Leonard Spielvogel stated he is in favor of maintaining the vested rights Ordinance as is; neither negative impact or public nuisance squares with the Constitution; and it is diminishing the rights that one has. He stated what exists now, which requires imminent peril, is defined in Blacks Law Dictionary; there are cases that have construed it; it worked; and inquired why it is being changed. He stated he raised the issue of whether the LPA was supposed to hear vested rights determinations for the Board; he thought that was what was going to be fixed; the LPA considered this and voted to hear vested rights determinations; and he thought that was the only item before the Board. He expressed concern about bringing in the concept of negative impact, which cannot be defined; and stated the Board might as well have done away with the Ordinance because negative impact is subjective while imminent peril is defined. He stated he has a problem with public nuisance; if a person is entitled to vested rights, it is not a matter of pure discretion with the Board; people have a right to come before the Board and say they have entitlement, and the Board should respect that entitlement; and that is what vested rights determination is all about. He stated if weak language like public nuisance is substituted, he will have to ask the County Attorney for instances of public nuisance. He advised public nuisances can be very mild; and inquired if a person's vested rights are going to be denied because they have poor personal habits. He stated vested rights are property rights which have to be respected; if there is an imminent peril to health, safety or welfare, the Board has the right to deny the request for vested rights; if the Board later finds there is a threat to health, safety or welfare that was not apparent, it can take away the vested rights; and that is a level everyone can respect. He spoke in favor of allowing the LPA to hear vested rights.

Commissioner O'Brien stated if it goes to the LPA, the applicant has to pay the attorney twice; with Mr. Spielvogel responding most attorneys feel that when they go to the LPA they are practicing, and they do not charge to practice. Mr. Spielvogel requested the Board allow applicants the option of going to the LPA or coming directly to the Board.

Chairman Scarborough inquired about the incident Commissioner O'Brien referred to earlier. Commissioner O'Brien stated Sunny's Discount Store was zoned BU-1-A which did not allow sale of gasoline; they came to the County and made application to put a gas station in, and the County agreed; he put the tank in, had the gravel for the second tank, and ordered all the parts for the gas sales; and that is when the neighborhood had a problem. Chairman Scarborough inquired what was the problem with him selling gas there besides zoning; with Commissioner O'Brien responding the lot was too small; he had to force right-of-way through the median in the side street; and the location along Courtenay was an unsafe location.

Chairman Scarborough inquired if that would have been imminent peril; with Mr. Spielvogel responding no. Chairman Scarborough inquired if a nuisance was created; with Mr. Spielvogel responding the potential for a nuisance. Ms. Bentley stated it is not just a nuisance but a public nuisance which is higher. Chairman Scarborough inquired if a public nuisance was created; with Mr. Spielvogel responding the potential for public nuisance was created. Chairman Scarborough stated for this case if the wording was imminent peril, it would not be; but possibly the Board could have said it was a public nuisance, no vested rights occurred, and the owner would be out $100,000. Commissioner O'Brien disagreed; and stated the County issued a permit. Ms. Bentley stated a public nuisance is one which affects an indefinite number of persons or all the residents of a particular locality, and it has to be a material and tangible interference with their use; and expressed concern that Mr. Spielvogel may think that the Board is saying a private nuisance would rise to the level of denying vested rights. Chairman Scarborough inquired if the situation on Merritt Island was a public nuisance; with Ms. Bentley responding the Board would be hard pressed to say that gas tanks and traffic circulation would be a public nuisance without good traffic studies showing overall danger; and it would be unlikely to be a public nuisance. Commissioner Higgs inquired what would be imminent peril in that situation. Mr. Spielvogel read, "imminent peril, such peril means certain, immediate, and impending and not remote, uncertain or contingent, and likelihood or bare possibility is not sufficient to create imminent peril." Chairman Scarborough inquired if it is a negative impact upon the health, safety or general welfare of the residents of the community, under the Merritt Island case, would the owner have vested rights. Mr. Spielvogel stated the fact that someone comes in to request vested rights implies negative impact; he or she is asking for relief from an Ordinance; and by doing so, they are creating a negative impact. Chairman Scarborough stated an inconsistency with a zoning classification is what created the problem; the question is was there negative impact, was there imminent peril, and was there public nuisance; and it becomes a factual issue. He stated negative impact can be pretty broad; public nuisance is a gray area; and imminent peril allows vested rights if there is no imminent peril. Mr. Spielvogel stated Sunny's Discount was handled correctly; imminent peril was the correct standard to use; and if any other standard had been used, an injustice would have resulted. Chairman Scarborough inquired what type of situation would have to be at Sunny's Discount before the Board would find imminent peril; with Mr. Spielvogel responding he is thinking about a nuclear power plant, but cannot think what could happen at a little convenience store that could be a peril. Mr. Spielvogel stated imminent peril is a standard that agrees with the Constitutional protection; and it has to be something that is a danger. Chairman Scarborough inquired what could be at Sunny's that would be imminent peril; with Commissioner Higgs responding storage of radioactive materials.

Delores Kane expressed concern about the change from imminent peril to negative impact because it is too broad and vague; and advised it would put the Board in a bad position. She advised of petitions that were signed at the American Legion; and requested the Board turn down the change. She inquired if this applies only to someone who has asked for something, gotten the permit, and then it is changed, and does it apply to any other instance; with Commissioner Voltz responding no. Ms. Kane stated the change to the Ordinance would be contrary to the Constitution. Chairman Scarborough stated if there is a gas tank that someone will probably hit every week causing a massive explosion that will kill 30 people, that is imminent peril; and even though the owner has put in $100,000, the County does not want 30 people killed every week. Ms. Kane stated imminent peril can be defined; if something is not imminent peril, the individual should be compensated; and she does not understand the change. Commissioner Higgs stated imminent peril is an almost unreachable standard; the Board is having trouble defining what would be an imminent peril; and that is why it contemplated something else. She stated she understands the concerns about negative impacts; and people are beginning to understand the narrowness of the Ordinance and how it applies; but imminent peril is a difficult standard to reach. Commissioner Voltz stated it is there to protect property rights. Commissioner Higgs stated the whole section of the Code is to protect property rights. Ms. Kane stated if there was a grandfather clause, this would not have anything to do with what is on the property; with Chairman Scarborough responding no. Ms. Kane suggested including the word dangerous; and stated nuisance is too broad and nebulous. Chairman Scarborough inquired would something have to be dangerous to be a public nuisance; with Ms. Bentley responding a dangerous situation could be a public nuisance. Chairman Scarborough stated he is not comfortable until the Board sees how this would apply to situations the Board has addressed; and negative impact could be anything.

Carl Signorelli stated he disagrees with the definition of vested rights; and it is not just when you get a permit and they decide not to let you use the permit. Commissioner Voltz stated that is vested rights and what the Board is talking about. Mr. Signorelli stated vested rights could be a man who has a house for 100 years with a tool shed on the side, and 50 years later a neighbor claims the shed blocks his view of the river and demands its removal. He inquired will the Board require the man to get rid of his tool shed; and stated the man has vested rights. He stated the Commissioners were elected by the people to represent them and protect their rights under the Constitution; and reminded them of the Oath of Office which they took when they took office. He inquired if the Board is trying to protect the Constitution by eliminating people's rights or is it trying to defend and support it by eliminating the Fifth Amendment. He stated if the Board votes for the proposed change, it will violate its vows; it will be taking away people's vested rights; and changing the wording imminent peril to negative impact opens the door to take all vested rights away. He advised of an example of imminent peril involving an individual's attempt to build multi-family housing, which he won before the Supreme Court. He stated if the words are changed, people will be at the mercy of the interpretation of their adversaries. He stated eliminating the appeals process and going before the LPA sets up the Board to be dictators which is contrary to our form of government. He stated if the proposed Ordinance is approved, there will be an ongoing conflict between the people's government and the newly formed government; and they will fight to retain their rights and force compliance to the Fifth Amendment. He commented on the Fifth Amendment.

Christine Slaughter, President-elect of the Melbourne Area Association of Realtors, stated when realtors get involved with issues, it is because it is affecting private property rights; they support the wording staying imminent peril, which is a testable item; and changing to public nuisance or negative impact is ambiguous. She inquired if a permit is issued by mistake and someone invests something, does the County have the right to take away their vested rights; stated if an imminent peril is involved that is different; but inquired if not, why would the County take these rights away from someone. She stated they are in agreement with the comments made by Mr. Spielvogel. Chairman Scarborough stated the Board has the capacity to compensate so the owner is not harmed. Commissioner Voltz advised of the situation with Olsen Tire on Wickham Road where there was compensation; and if the Ordinance is left like it is, it works. Chairman Scarborough stated anyone has the right to access the court, so the Board is not affecting the law of Florida through this Ordinance. Commissioner Voltz inquired why make residents spend money to go to court. Chairman Scarborough stated the goal is fairness and justice for everybody. Ms. Slaughter requested the Board leave the Ordinance as is.

Alice Petty stated she has a problem with the language of the Ordinance; no one knows more about negative impact than the Board; and recommended using definable words such as imminent peril. She commented on the bureaucratic process and compensation; and requested the Board leave the Ordinance as it is.

Peter Dilavore encouraged the Board to leave the Ordinance the way it is; stated he understands the problems; but if the County makes a mistake, that should not be grounds to withhold anything from an owner. He expressed agreement with Mr. Spielvogel and Ms. Slaughter.

Cindy Dilavore stated she agrees with the previous speaker.

Christine Boyle stated she is against the change to the Ordinance; and advised of a petition signed by 15 residents.

Frank Dolci stated when the County takes a person's home, it is a serious thing, and serious wording is needed; and he does not think imminent peril is too strong. He stated he does not want the Ordinance changed to make it easier to take away people's rights.

Mike Moehle, President of Citizens for Constitutional Property Rights, stated he does not know why the County Attorney has the idea that this is something that applies only to a situation where a permit has been issued in error; Section A of the Ordinance says the Board of County Commissioners shall hear appeals relating to any administrative decision or interpretation concerning the implementation of the 1988 Comprehensive Plan as amended, and the regulations contained in Article X of this Chapter; the Board shall hold a public hearing and make a final decision approving or disapproving the administrative decision or interpretation; and the same procedure shall be followed whenever an individual or affected party believes vested rights have been abrogated or that a temporary or permanent taking of the property has occurred. He stated nothing is said about permits being issued in error or errors being made by the County. Chairman Scarborough stated he understands what the language says, but those are the issues that have come up for vested rights. Mr. Moehle stated there is nothing to stop the Board in the future from utilizing the language of this Ordinance, including the requested change, to any vested right that anyone has, or may have had for any length of time; and it does not say anything about a permit or error of government. He stated imminent means it is going to happen right away; this is talking about denying due process; and advised of criteria for determination of vested rights. He stated people will be deprived of due process; the Board will not find they have a vested right; and that requires a high standard like imminent peril, which means something that cannot go to court because there is not enough time. Commissioner Higgs stated it can go to court; with Commissioner Voltz advising he is saying that it is something that has to be done right now. Mr. Moehle stated in the event someone's vested right does impose a public or common law nuisance or impact the public health, safety, or general welfare, eminent domain is the remedy.

Chairman Scarborough stated if there is something putting people at risk, the County has the capacity to come in with an emergency injunction to protect public health and safety; so regardless of what is out there, the Board always has the ability to enjoin something that is going to harm the public. Commissioner Higgs stated the Ordinance is designed to allow people an appeal procedure so they do not have to go through an expensive court process. Commissioner Voltz stated they can still go to court if they want.

Discussion ensued on solving problems if the County has made an error, only fuzzy cases coming to the Board, the Ordinance as an avenue of appeal for ordinary people, imminent peril, just compensation, capacity to buy vested rights, defining vested rights, doctrine of equitable estoppel, injunctions, denying activity because of peril to public, peril which is not imminent, and leaving the Ordinance as is.

Mike Moehle inquired if the determination of whether a person has a vested right or not will be made by the Board on whether or not it has a negative impact or nuisance. Chairman Scarborough responded the vested right determination is made first; and then there is a secondary decision. He stated the vested right is an equitable estoppel argument, acting on reliance to your detriment. Mr. Moehle read aloud, "the following criteria are to be considered by the County in review of a determination of vested rights, provided that such determination does not create a negative impact." Chairman Scarborough stated it may be poorly structured, but that is the only way it can read. Mr. Moehle stated if it has a negative impact then the Board can say no vested interest exists, sue us; with Chairman Scarborough advising it does not work that way. Mr. Moehle advised he has seen staff interpret a lot of things in a lot of ways. Chairman Scarborough stated vested right is a clearly defined legal term; and Ms. Bentley advised the Board can say some things, but it has to be within the area of what the law defines as a vested right. He stated if someone has a vested right, but the Board cannot let them proceed because of public health and safety, there could be two different steps; there could be the vested right determination; but then there would be a separate determination if there is an imminent peril. Ms. Bentley stated that is a possibility and the Board can look at it, but she is not sure the County could force property owners to take the money instead of their property rights; with Commissioner Higgs advising then they would go to court. Ms. Bentley stated it is a mechanism to make the offer. Chairman Scarborough stated the issue is going to be the amount of compensation more than anything else.

Mr. Spielvogel inquired if there is a problem; and stated he is hearing the Board handled one instance very well, determining it was not the sort of thing that was going to be safe. He stated someone came in with a request for a tower in the flight path of Tico Airport, and someone made a mistake and issued the building permit; that was an imminent peril; and as the person already ordered the steelwork, the Board had exposure; but it handled it. He inquired why the Ordinance is being addressed when the Board has important things coming up. He stated imminent peril is the standard; and it has to be significant. Chairman Scarborough inquired if imminent means immediate. Discussion ensued on imminent peril.

Commissioner Higgs stated the Ordinance could be made better; but she has not heard wording that she likes better. She stated negative impact is too lenient; and there should be a better word than imminent peril. She recommended leaving the Ordinance as it is.

Charles Moehle, President of Modern, Inc., stated the Board should leave the Ordinance alone except for the procedural part. He stated if the Board changes the language to either negative impact upon the public health, safety or general welfare of the residents of the County, or public or common law nuisance, it is taking away rights that are not defendable in court; and the original reason for the Ordinance was to resolve problems without getting into the court situation. He stated there is already a good standard; but the other standards are too vague; they are subjective, restrictive, and empower the Board with unbridled discretion; they allow arbitrary and capricious actions by the Board, and negate the qualifying conditions of Paragraph D, Items 1-6 of the criteria; they violate the Constitutional rights of the citizens under the State and federal Constitutions; they will not stand a court challenge; and they create a number of problems the Ordinance was created to avoid. He stated it potentially creates a lot more exposure for the County because there will be a lot more subjective decisions; some of the Board wants more power over people rather than preserving their rights; and that is not appropriate. He recommended leaving the Ordinance the way it is because it has not caused problems.

Mr. Spielvogel stated what the Board originally set out to address is still there; and inquired if the Board wants vested rights to go to the LPA first or directly to the Board. Chairman Scarborough inquired if that is at the option of the applicant; with Mr. Spielvogel responding he would suggest it be at the option of the applicant. He stated this came about because he requested the opportunity to go to the LPA, and was granted that right.

There being no further objections or comments, motion was made by Commissioner O'Brien, seconded by Commissioner Voltz, to adopt an Ordinance amending Chapter 62, "Land Development Regulations", Code of Ordinances of Brevard County, Florida; amending Article III, Section 62-507, "Appeal Procedures; presentation of claims of regulatory takings or abrogation of vested rights," specifically removing requirement to appeal before the Local Planning Agency, removing associated specific advertising criteria for the LPA meeting, revising office and position titles and replacing specific language "imminent peril" with "negative impact upon the"; providing for conflicting provisions; providing for severability; providing for area encompassed, providing an effective date; and providing for inclusion in the Code of Ordinances of Brevard County, Florida, as amended to retain specific language "imminent peril" and include the LPA language. Motion carried and ordered unanimously.

Upon motion and vote, the meeting was adjourned at 9:49 p.m.

ATTEST:

TRUMAN SCARBOROUGH, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

SANDY CRAWFORD, CLERK
(S E A L)