The Board of County Commissioners of Brevard County, Florida, met in regular session on September 27, 1995, at 5:30 p.m. in the Government Center Board Room, 2725 St. Johns Street, Melbourne, Florida. Present were: Chairman Nancy Higgs, Commissioners Truman Scarborough, Randy O'Brien, Mark Cook, and Scott Ellis, Assistant County Manager Stephen Peffer, and County Attorney Scott Knox.

Commissioner Mark Cook led the assembly in the Pledge of Allegiance.

SILENT PRAYER, RE: SPEEDY RECOVERY OF TOM JENKINS' SON

Commissioner Scarborough advised County Manager Tom Jenkins' son had a compound fracture and requested a silent prayer for his speedy recovery.

Chairman Higgs advised Tom Jenkins is the County Manager and his high school age son is a football player and sustained very complicated injuries.

The Board paused for a silent prayer.

DISCUSSION, RE: ABBY MARINA VIOLATIONS

Commissioner O'Brien requested the Board grant permission for the County Attorney to file an emergency injunction, if there are any violations at Abby Marina, to prevent any further damage. He stated it appears that Abby Marina began construction outside of the DRI where they supposed to have the pump-out facility, bathroom facilities, etc. and be connected to County sewage before they began. He stated they have started dredging without turbidity dirt barrier or silk curtains in place, and have done a lot of things in the past week, and just got caught at it today. He stated it looks like they may be in violation, and if they are, the County Attorney should be granted authorization to stop them from doing that.

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to authorize the County Attorney to follow appropriate procedures and file an emergency injunction to stop construction at Abby Marina if staff finds them in violation of County Codes.

Chairman Higgs inquired if the State or County issued the permit; with Commissioner O'Brien responding it is a County permit and DRI; and Department of Environmental Protection is only involved in the water side. He stated it is a violation of the DRI, if what they are doing is true; Growth Management Director Susan Hann called him in quite a state; and perhaps something drastic needs to be done. He stated by the time the Board meets again or the County Attorney can do something, they would have already accomplished what they want to accomplish.

Commissioner Cook advised he shares the concern, but if they do something that they are not supposed to they have to correct it; and inquired what basis does the Board need to do this, and does it need a finding; with Mr. Knox responding Commissioner O'Brien wants to delegate the responsibility to determine whether or not a violation has occurred to staff and let them proceed if staff determines there is violation. Commissioner O'Brien stated if there are no violations then the County Attorney would not have to file; but if there are, they could be very serious. He stated the Board blessed the DRI for the marina; and if they are in violation of the DRI and have to come back after the fact that is not in the proper spirit of what was created in the first place.

Commissioner Scarborough stated the Commissioners could commit to an emergency called meeting if it does not grant the emergency injunction; and if there is no consensus, those Comissioners who vote against it should be willing to cancel appointments to come here and hear the matter.

Commissioner Cook inquired if that is acceptable; with Commissioner O'Brien responding no, if staff finds there are violations, they cannot wait another day or hours; and Mr. Knox needs to have the authority to file an emergency injunction. Commissioner Cook inquired if they will be allowed to comply before going to court; with Mr. Knox responding staff has called Mr. Spielvogel today to tell him what is going on. Commissioner Cook stated the staff should follow the procedure for due process. Assistant County Manager Stephen Peffer responded they would proceed with an attempt to get voluntary compliance; very often that occurs if they are notified there is a problem; and an emergency injunction would only be necessary if they refuse to comply with the notice. He stated if that is the Board's desire, they could wait to file an emergency injunction until they determine there would not be voluntary compliance.

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

APPROVAL TO PURCHASE, RE: T-SHIRTS FOR AFRICAN-AMERICAN MALE SUMMIT

Commissioner Cook advised the Board had a presentation for the African-American Male Summit which is coming up in October; the Board authorized T-shirts or whatever it had on hand to be given to the people who are putting the project together; it turns out there are only three T-shirts; and they have requested 200. He stated according to Stockton Whitten, they cost about $6 each; and the Board could grant them 200 or any amount the Board sees fit.

Motion by Commissioner Cook, to approve 200 T-shirts for the African-American Male Summit.

Commissioner O'Brien stated that is about $2,400; with Commissioner Cook responding the Board did commit; when it told them it would give them what it had in stock with the County logo he assumed there would be more than three; and the Board could put a maximum amount on the cost of the T-shirts. He recommended $1,000 for as many as they can buy.

Commissioner O'Brien suggested giving them 100 T-shirts and keeping 100 in stock; with Commissioner Cook responding they are expecting several hundred people at the event.

Motion by Commissioner Cook, seconded by Commissioner Ellis, to authorize the purchase of $1,000 worth of T-shirts for the African-American Male Summit, to be held in October, 1995.

Commissioner Cook stated at a later date if the Board wants to buy more to have them in stock, it could do that. Commissioner Scarborough inquired if they would prefer $1,000 or the T-shirts; with Commissioner Cook responding the Board's commitment was for T-shirts, and it will promote the County.

Chairman Higgs called for a vot on the motion. Motion carried and ordered; Commissioner O'Brien voted nay.

Commissioner O'Brien stated if this is a non-profit organization the Board is giving $1,000 worth of shirts to, should they be added to the list; and recommended Mr. Peffer add them to the list.

Commissioner Ellis stated they were advised to make that application when they came to the Board. Commissioner Cook stated they asked for funding and the board denied that and give them T-shirts.

Commissioner Scarborough inquired if there is a way to ascertain how many of those organizations are out there; with Chairman Higgs responding the State of Florida may have a listing. Commissioner Scarborough stated it may be interesting to know that for information. Commissioner Cook stated he would not have brought it back if the Board did not authorize the T-shirts initially.

PUBLIC HEARING, RE: ZONING RECOMMENDATION OF AUGUST 7, 1995, RE: ITEM A14, BOARD OF COUNTY COMMISSIONERS

Chairman Higgs advised the audience of the proper procedure for addressing the Board and the lighting system; and called for the public hearing to consider the recommendation of the Planning and Zoning (P&Z) Board, made at its public hearing on August 7, 1995, and tabled by the Board of County Commissioners on August 28, 1995, as follows:

Item A14. Brevard County Board of County Commissioners, on its own motion and without the consent of any owner of affected property, on October 24, 1995, directed a consideration of an amendment to the Official Zoning Maps of .13 acre located at the northern terminus of Sparrow Drive in Waterway Estates, 4th Addition, from GML to RU-1-11.

Lynne Barlet, 449 Sparrow Drive, Satellite Beach, advised she spoke to the Board at the last meeting and was concerned about the RU-1-11 because she did not know the intentions of the purchaser of the property; she previously contacted the owner and asked for the intentions and received several different answers; recently he contacted her neighbor and said he would like to sell it for $12,000 and said it is worth $29,000; and that might be his intention right now. She stated they will not pay $12,000 for that lot which is totally unaccessible; he told her he wanted to borrow against it and another time he wanted to use it for a boat and picnics; and he told the Zoning Office he wants to use it to park a boat; so at this point they have gotten no where with this party other than he did offer to sell it for $12,000 and paid $3,100 for it. She requested the Board check into another lot in the area that is similar to this lot that has no record of ownerhsip. She stated some maps shows it and some do not; she does not know who owns it, and no taxes are being paid on it; and maybe if the Board would look into that lot, they could come to a conclusion on this lot. Chairman Higgs requested a description of where it is located be given to Tom Myers to help the Board look into that.

Commissioner Cook advised the Board has almost no choice but to approve this tonight; and stated his desire was to vacate the property to the adjoining property owners, but legally the Board could not do that. He stated staff will check out the other lot to find out what the story is on that. He reiterated his desire to vacate the property to her and her neighbor. Ms. Barlet inquired if there is any way to prevent him from filing for a variance due to the petition they filed with the County; with Commissioner Cook responding no. Ms. Barlet inquired if he filed for a variance would they have to come back to the Board; with Chairman Higgs responding if the property has an application for a variance, the adjoining property owners will be noticed and will have the opportunity to appear before the Board of Adjustment. Commissioner Cook stated he could only apply for a boat dock, but that would require a variance also. Zoning Official Rick Enos stated there is no structure that can be built on that lot right now, but he could request variance. Ms. Barlet inquired if he would need a variance to get a well or electric service; with Mr. Enos responding he is not aware of any permit he would need for a well, but for electrical service he may need it. Commissioner Cook stated he would have to comply with certain distance from the water. Ms. Busacca advised there is no agency which permits wells that are less than four inches in diameter. Chairman Higgs inquired if they have to be a certain distance; with Ms. Busacca responding there is no requirement for a well less than four inches to be permitted by anyone. Ms. Barlet inquired if power is run to a home and not just a lot.

Motion by Commissioner Cook, seconded by Commissioner O'Brien, to approve Item A14, as recommended by the P&Z Board. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ZONING RECOMMENDATIONS OF SEPTEMBER 5, 1995

Chairman Higgs called for the public hearing to consider the recommendations of the Planning and Zoning (P&Z) Board, made at its public hearing on September 5, 1995, as follows:

Item 1. Jean-Yves Clerk, as Trustee's request for CUP for towers and antennae in IU zoning classification on 4.19 acres located on the northwest corner of Dow Road and North Drive, which was approved by the P&Z Board.

Motion by Commissioner Ellis, seconded by Commissioner O'Brien, to approve Item 1 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 2. Vincent P. and Maria Taranto's request for change from GU to RU-2-30 on 2.29 acres located on the west side of SR A1A, north of Harris Boulevard, which was tabled by the P&Z Board at the request of the applicant, with reprocessing fee required.

Vincent Taranto advied he was able to contact the Zoning Department, his wife's mother died and they had to fly to Buffalo and could not appear on September 5, 1995; and he submited a letter about a week and a half ago and requested waiver of the refiling fee.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to waive the reprocessing fee for Vincent P. and Maria Taranto. Motion carried and ordered unanimously.

Motion by Commissioner Ellis, seconded by Commissioner Cook, to table Item 2 as rec ommended by the P&Z Board. Motion carried and ordered unanimously.

Item 3. Lawrence Frazier Johnson, Charlene R. Johnson, and Tania Louise Johnson, as Tenants in Common's request for MUD expansion and change from RU-1-7 to BU-1 on 4.985 acres located on the southeast corner of Commodore Street and U.S.192, which was approved by the P&Z Board as MUD expansion to the south line of Lots 209 and 235.

James Stevens, 10481 S.E. Banyan Way, Tequesta, Florida, representing the applicants, advised it is his desire to construct a Sears Homelife Furniture Store on the property; there will be no smells, bands, noise, and very little traffic because furniture stores do not attract a great deal of automobiles; and the reason for the request back 460 feet is because the water table is extremely high there, and in order to accommodate the retention pond, unless allowed on residential property, he could not get the building on the site. He stated there is a precedent the Board allowed back to 450 feet; he has three tiers of parking in the front of the building; it is an extremely attractive building architecturally; it will have no light on any residential neighborhood; and it is probably the most conservative commercial use as far as disturbance to a neighborhood. He stated it is not a point of delivery of furniture; they cannot go into the store and buy a couch and have a truck come and pick it up; the point of delivery is from the manufacturer; and he would prefer to answer any complaints after the residents have had a chance to state their case.

Commissioner Ellis advised currently the Mixed Use District (MUD) goes back a certain number of feet; and inquired if what is requested south of Lot 207 is for retention; with Mr. Stevens responding no, the major part is for retention, but he has not engaged professionals to tell him exactly what is needed and has not done geo-technical studies of the land to determine if the water table is 18 inches or three feet; so it is preliminary to say he can go back only 410 feet, but he can tell the Board he would go the minimum distance he can possibly go. He stated it would be the least offensive commercial use that could be located on that property; and that is the positive point he can bring to the neighborhood. Mr. Stevens advised he developed one of those stores less than 100 yards from his home in Palm Beach County in Prosperity Center and it has not been a problem. He stated he is willing to landscape and do anthing the County wants him to do; and because there is no sewer available today, he would need a septic drainfield also. Commissioner Ellis stated there is not as much concern with a pond and open space in the back as there is for the possibility of a commercial building extending all the way back to the end of the lot. Mr. Stevens advised the building will be 35,000 square feet; it will have 200feet of frontage and 175 feet of depth; a traffic pattern will be needed; and he would be dlighted to settle for less if he could, but does not want to purchase the property and hire the professionals then find out later there is not enough room. He stated the 460 feet is his engineer'srough estimate of what will accommodate the building and parking as required by the County Code. Commissioner Ellis inquired if the 460 feet is the building and parking lot only, or does it include the retention pond and septic drainfield; with Mr. Stevens responding it is everything, and the balance, which goes to the next street and is a significant amount of land, he would be delighted to have the residents do what they want with it if they want a green area because he does not have a desire to retain title to it, so he is flexible. Commissioner Ellis inquired if there is a way to get a rough calculation of the depth of the structure; with Mr. Stevens responding he 415 feet including the 175 feet of depth for the building two drive-throughs, etc. Commissioner Ellis stated the MUD goes back 360 feet right now, so he would need another 50 feet beyond that for the project; with Mr. Stevens responding he is flexible. Commissioner Ellis stated if the structure stays forward, behind the buiding would be the drainfield and retention pond so the homeownerss would look across vacant land. Mr. Stevens stated he has no desire to put a structure in front of the new house being built on Commodore. He stated the Lazy Boy Gallery that is under construction is 20,000 square feet and is an elongated rectangle.

Attorney Charles Heim, 2040 A1A, Suite 201, Indian Harbour Beach, representing John Armstrong, Jr. and his fiance who own Lots 187 and 188 at 1990 Commodore Street, directly across from the subject property and are opposed to the application. He stated there are three fundamental reasons for the opposition; and requested additional time to present the issues.

Chairman Higgs inquired if she has a legal obligation to permit the additional time; with County Attorney Scott Knox responding no, but she can if she would like to since he represents a group of people.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to grant Charles Heim three additional minutes. Motion carried and ordered unanimously.

Mr. Heim advised the process that brings them here tonight is procedurally deficient; at the P&Z Board meeting, the application was for 700 feet; public comments were permitted on that; and after public comments ended, the applicant and P&Z Board moved it to 465 feet; however, when members of the community asked to speak to the amended application, they were not permitted that opportunity, and were told their opportunity would be here tonight. He stated there has been no opportunity for the public to speak to the amended application at 465 feet. He stated the more significant issue and the basis for the P&Z Board's decision was the premise that the Board previously approved this activity regarding Lazy Boy's property which is on the map as Parcel 8851; that is not correct; and there was only rezoning involved with Parcel 8851 and no change in the land use plan. He stated the 1988 Comprehensive Plan has BU-1 within 300 feet to the south of U.S. 192 in the subject area unlike the rest of U.S. 192; Parcel 8851 had a future land use designation of BU-1 back to 400 feet; so to look at the premise that this Board had previously established a precedent is not correct; and if anything, the Board established a precedent by establishing the 300 feet in depth in the Comprehensive Plan. He stated in addition, there was a binding development plan (BDP) and a number of meetings regarding the rezoning of Parcel 8851, specifically to address considerations of a buffer for the difference to the residential character of the community; and there is a significant difference between the Lazy Boy property and the applicants' property, probably the most imporant is that it is bordered not only by U.S. 192, but also by Seminole Boulevard which are fully-developed roads unlike Commodore which is a dirt road and essentially a lane to private residences. Mr. Heim advised the site plan for Parcel 8851 requires that from U.S. 192 there be 400 feet back a separate entrance onto Seminole Road; so that would mean not only a retention pond being across from his clients' property, but in all likelihood a back entrance to the property will be required by the Building Division. He stated Parcel 8851 is not a precedent because there was a BDP as part of that rezoning and not an expansion; the applicant said he does not have a site plan; and the motion passed by the P&Z Board did not require a BDP or binding site plan (BSP); so if the Board were to approve this and he sells the property to someone else, there is nothing that will limit what can go there as long as it is a building that can be built in a BU-1 location. Mr. Heim advised another major issue is that the application materially violates the Comprehensive Plan in a number of ways; Policy 4-1.c, the criteria for expansion of an MUD beyond 300 feet, has certain reasons; the limits were established on the Future Land Use Maps to protect the environment, accommodate property lines, which was done with Parcel 8851 to fill in the property, and for rights-of-way and easements if there was a binding development restriction that was voluntarily submitted to the P&Z Board and approved by the County, something that was done with the Lazy Boy property which was not presented to the Board by the applicant. He stated there were suggestions to donate the property and only one truck accessing the property; none of those are in a binding context; and nothing is to prevent another owner from developing the property in any way permitted in BU-1. He stated Policy 1.6.b, regarding compatibility with surrounding land uses, is important when reviewing staff's worksheet and recommended approval only within the 300 feet; staff found compatibility only with regard to that 300 feet; and it is not compatible beyond the 300 feet because of the residential land uses, not only in terms of the future, but currently being used. He stated Policy 1.6.d., regarding the compatibilty with the character of the area, is the same issue; one again within the 300 feet and up to 360 feet for Parcel 7623 would be appropriate for BU-1; but beyond that it is residential in character. He stated Policy 4.8 deals with appropriate locations for strip commercial land uses; staff found that appropriate within the 300 feet, but there are certain criteria established that are missing here; the language says the performance standards shall be adopted to mitigate the impacts to the land use pattern; and Criteria C says setbacks and landscape or other appropriate buffers shall be established to mitigate the visual impact of the strip commercial development; however, there is no BDP or proposed site plan for this Board to consider. Mr. Heim advised Criteria E says infield development to establish commercial strip areas shall be preferred over expansion of strip commercial areas; the gentleman indicated he cannot complete his project withn the 300 feet; but he has not addressed why the building cannot go in along U.S. 192 in the vacant area to the east of the property without having to go south into an existing residential community; and for those reasons, he asks the Board to deny the application.

Attorney Charles A. Schillinger, representing Colleen Murphy, 2015 Knotty Pine Road, advised his arguments are similar to Mr. Heim's who covered the same basis he would have covered. He stated Ms. Murphy owns Lots 166 and 167; the applicant mentioned it would not affect the property and traffic will not be high; but he disagrees because it is a Sears furniture store and not an Ethan Allen furniture store which has a profile of catering to specific high-class consumers. He stated it will cost 1.5 million dollars to construct the two-story building with 35,000 square feet; and traffic will be high in the area and will greatly affect the overall character of the residential properties.

John Armstrong, Sr., 4645 Whipple Hollow Road, Melbourne, advised he is a Florida State Certified General Contractor and typically build buidings close to what the Board is talking about tonight; his primary business is commercial, indsutrial, and military construction; and he is one of those who tried to speak at the P&Z Board meeting on the 460 feet and was denied. He stated he has approximately 40 aerial photos of U.S. 192 showing the area they are trying to rezone, the home directly across the road which is his son's home, the lots which he owns in the immediate area, and all the commercial properties typically setback at 300 feet with the exception of Sam's. He stated there was no precedent set, but that was the reason the P&Z Board approved it; and if the Board passes it tonight, a precedent will definitely be set and they will never be able to deny anyone going beyond the typical commercial area. He presented the pictures to the Board. Mr. Armstrong advised when he builds, he tries to build a building on 20 to 25% of the land area that will allow typical setbacks; in this case, there are two setbacks; there are roads on two sides of the property; and there are easements, drainage, sideline setbacks, and all kinds of restrictions; so it is a strong statement to say the applicant will give up any land and he is flexible. He stated he doubts if he would get the project at 465 feet; the original application was for 700 feet; the P&Z Board said what about 465 feet becasue there have set a precedent; but he does not believe that precedent was set. He stated a store 200 feet wide and 175 feet deep will have a lot of trouble trying to make it work on the property. Mr. Armstrong advised he owns Lots 181 through 188 as well as 163 and 164; his daughter has Lots 161 and 162; his son's land is across the street; so there is a strong interest in the area. He stated he currently has negotiations with three people for the property with the white fill on them; and they may not want the property and indicated they may not want to live there if this is passed tonight. He stated the Fire Department and Road and Bridge will require a second ingress/egress to the property, and will not allow two entrances on U.S. 192; there is only one other choice and that is Commodore; and it will come out at the back parking lot of the store by the retention pond which is the residential area. He stated a comment was made they would not have many cars and only one truck a week; however, the intent is to get as many cars in there as they can. Mr. Armstrong stated Sears has been in at least three locations in the last five years; and should it move out of there what would go on that property. He stated before he bought his lots he examined the Comprehensive Plan which proposed the property to be residential; he bought his lots to sell to people and make a living; and he hopes the County does not let him down. He stated he submitted a petition at the P&Z meeting with 14 signatures of immediate landowners around the property; 100% of the residents are against the project; he got three or four of them to come to the meeting tonight; but the rest said it would not get him anywhere because the County will do what it wants to do. He requested the Board not let them down.

Linda Karolick, 4045 Carolwood Drive, Melbourne, advised her daughter Teresa has a house directly across from where they want to build a Sears store; and she objects to it for her daughter who wants to raise a family in the neighborhood and does not want the building across from her house. She stated she would not buy Mr. Armstrong's property either if the Sears building goes in; her daughter's land value wil lgo down; Sears is a good store, but her daughter wants a home across the street and not a building she has to look at every morning when she gets up. Commissioner Ellis inquired which lot does her daughter own; with Ms. Karolick responding Lot 187.

Teresa Karolick, 4045 Carolwood Drive, Melbourne, advised her fiance and she are currently owner/builders of the lot at 1990 Commodore Street; they are building the house themselves and taking great pride in doing so; they were expecting to have neighbors across the street and children for their future children to play with; and they like the dirt road which is nice and quiet and does not have a lot of traffic. She stated if the building goes in, they will have big trucks goind down the dirt road and will possibly pave it; she likes the dirt road; the building would be better if it stayed where it is supposed to be; and she wants a neighborhood atmosphere, not a commercial atmosphere. Ms. Karolick stated she knows the lot next to them is zoned commercial so they put their garage on that side for that reason; if the lot is developed, they will put up a fence; but they do not need anything across the street where they are now looking at woods and will have to look at a retention pond and driveway.

Larry Timmons, 7667 N. Wickham Road, Melbourne, opposed the application.

Travis Pepin, 3070 Hsarlock Road, Melbourne, opposed the application.

John C. Armstrong, Jr., 4645 Whipple Hollow Road, Melbourne, advised his fiance just spoke and said it all; they want the neighborhood atmosphere; they were under the impression it would be residential; and requested the Board keep it residential. He stated the dirt road is private; they like the private atmosphere; and every commercial area has dumpsters out back where animals and others pick through them. He stated if they have children, he would want them to be able to play in a yard across the street and down the road, and to ride bikes without worrying about traffic and tractor/trailers; and he is opposed to the application and request the Board help him and do the same.

Commissioner Ellis inquired if Mr. Armstrong is aware that to the north it comes down 360 feet so his property is against commercial; and if his concern is going south of the 360 feet; with Mr. Armstrong responding that is correct.

Keith Nielsen, 1985 Knotty Pine Road, Melbourne, advised his home is directly behind Mr. Armstrong's lot; they already have a problem with Georgia Carpet there and it is not a big building; but there are always people going through the dumpster which is not a good scene. He stated if the Sears store comes in, more people will come that should not be there and would not be there if the store was not there; he does not have any children but may some day; and he does not want the store in the area.

Jenai Nielsen, 1985 Knotty Pine Road, Melbourne, advised she and her husband oppose the change and do not want the store in their neighborhood; they do not want a retention pond as their porch faces in that direction; and if they had children, they would not want them going to a retention pond or business district to play. She stated they are property owners and taxpayers and are looking for the Board's help.

Ken Nielsen, 871 September, Palm Bay, advised he is trying to sell his house in Palm Bay and move closer to his family where Keith and Jenai Nielsen live; Mr. Armstrong is going to help him with the design of his house on one of the lots; they have not chosen a lot yet, but wsant to get out of the problems in Palm Bay and to a nice area with trees and close to shopping; but when he heard about this item, he could not believe it. He stated he has seen those stores in Orlando; they are large and attract a lot of attention; when the area gets a lot of rain it is very wet and deep; and the runoff is going to be a lot more even with a retention pond because there will not be enough land to dissipate the water, and it will run off the concrete towards the lots he had planned to buy. He stated it may be a nice looking building, but trees and buildings are not comparing apples and apples; that is not his ideal place to build a new home; and he would rather stay in Palm Bay if that is the case even though he does not want to stay there.

Jerry Ward, 509 Palmetto, Melbourne, opposed the application.

Jill Weber, 2660 New York Street, Melbourne, advised she has a home two streets from the property; she has three boys under the age of three; they go to their aunt and uncle's house every Saturday; and she is concerned about their safety. She stated she would like to think she can let them ride their bikes and have fund and let their aunt walk them on the street without traffic; but she is concerned about the traffic from the furniutre store or any commercial establishment. She stated the street is quiet and she likes to think her children are safe there and is opposed to the request.

Maureen Massaro, 7788 Greenboro Drive, West Melbourne, opposed the application. Jackie Wynn, 1861 Trimble Road, Melbourne, opposed the application.

William Chilcott, 1985 Trimble Road, Melbourne, advised he has a verbal agreement with John Armstrong for purchase of one of his lots to build a house; if this is passed there is no possible way he would consider that lot agin; they have talked about building on those lots for years and even put dirt on them to make them more desirable; and Mr. Armstrong has come up with a price he can afford. He stated it is the only chance he has to build a house of his dreams; it is not going to happen if there is commercial property close to his lot; it is not desirable to him with dumpsters, parking lots, added traffic, etc.; and he was looking for a residential area and the way the area looks now. Commissioner Ellis stated no matter what happens tonight, is Mr. Chilcott aware the commercial district goes back 300 feet off U.S. 192 and will not be all residential; with Mr. Chilcott responding absolutely. Commissioner Cook stated eventually something commercial will be at that location; with Mr. Chilcott responding it may be something that is convenient to him.

Colleen Murphy, 2015 Knotty Pine Road, Melbourne, advised he home is located one street west of Commodore; she has lived there for three and a half years; the roads are dead-end roads; and there will be traffic with people coming down to turn around thinking they could get all the way through. She stated it is going to be a hazard; there is a sign that says dead-end street, but they come down there all the time and turn around in her driveway; and she has a problem with commercial encroachment on a residential area. She stated it has to be stopped; they all cannot live in a completely residential area, and some have to deal with commercial; they know they have to with 300 feet; but to keep coming back and pushing the residential away when there are hundres of commercial buildings vacant in Melbourne is not right. She inquired what will happen when Seras leaves will another Bare Assets go in there. Ms. Murphy advised she has a hear and a half old daughter and is very concerned about what is going to be there because she cannot believe Sears is going to be there forever; and she knows they are big stores and will draw a lot of people.

Commissioner Cook stated even if this application is denied, something will eventually go in there; and it could be something desirable or not desirable; with Ms. Murphy responding she will fight it if it is something undesirable. Commissioner Cook stated if it is zoned a certain way and someone comes in with a business that fis that zoning classificaiotn, there is no way the Board can deny it. Ms. Murphy stated they will keep coming and coming with commercial, and she objects to it.

Bonnie Armstrong, 4645 Whipple Hollow Road, Melbourne, advised she supports her son who said it all; he does not want to raise his children in an area where he has to worry about them being hit by tractor/trailers; he bought the lot because it was in a residential area; and he takes great pride in the work he is putting in that house. She stated she hates to see him lose what he has put into it; she realizes Sears will bring jobs and the Commissioners need to consider that; but they also need to consider the people who vote for them.

James Stevens advised he will not take the statement about Sears furniture and customers as a personal affront; Sears Homelife Furniture Stores have furniture graded from zero to ten, and ten is custom-ordered decorator items where a couch costs $10,000; and Sears sells grades between 5 to 9.5 from a standpoint of decorator items. He stated they have 36 different fabrics on anything people want to buy; and the furniture comes from the factory and not from the showroom floor. He stated in reference to dumpsters, the site plan approval process will determine the location; and most of their trash would be cardboard and a lttle lumber from the furniture crates when they are shipped. Mr. Stevens advised he developed 27 stores from Seattle, Washington to Dade County, Florida, and from Princeton, New Jersey to San Diego, California; and he does not make comments on behalf of his client that are misleading or not factual; so what he says is true. He stated traffic would be a concern to him if he were one of the residents; in the City of Sunrise, Florida, which is probably the most difficult place he ever accomplished a project, they are re-writing their Code based on furniture uses because of the traffic studies he provided them; and that is easy to check by simply calling Tom Kasawara, Chief Engineer for the City. He stated when he says they do not attract traffic, what he means is they attract very little traffic; it is a destination place and not for someone casually driving by and deciding to go furniture shopping; they are high ticket items; and that is not the way the purchasing is done. He stated most people plan to go furniture shopping; if there are more than 20 cars in any furniture store parking lot it is probably the staff gathering at the front to make people think there are a lot of people in the building; furniture just does not attract traffic; and that is a flat statement of fact. He stated he will not counter every negative that was said, but will say if they get a Chilli's Restaurant or Benigans, they will know what traffic is. Mr. Stevens advised the furniture store would not bring noise or endangere children; they have never killed anyone; and it would be one truck a week if enough small items are purchased during the week. He stated there is less than 5,000 feet of non-showroom floor space that can be used for storage and small items such as lamps, etc.; he has never been received so negatively any where by the neighbors; and he has almost been welcomed with open arms because of what the alternatives are; and he thought what he can bring to a neighborhood is as close to perfection as one can get and be commercial. Mr. Stevens stated his client, Sears Roebuck & Company, would not allow him to make a comment to the Board that is not true; he is sympathetic to the needs and desires of the residents; but he did what the County asked him to do and looked to see how far back it would go. He stated he eliminated one row of parking up front, assuming he can meet the Code, has no parking behind the building, and has one loading dock which is 19'x26'. He stated the building is an extremely conservative architectural building designed to appeal to ladies; he will keep it as close to the street as possible; nothing is going to change that corridor from being commercial; and the County may run him off, but in a few years he will be back to see what is there.

Commissioner Cook advised generally furniture store parking is entirely in the front of the showroom, the customer entrance would be in the front, and the only thing in the back would be the loading dock.

Mr. Stevens advised he could probably get the project down to 405 feet to the south. Commissioner Scarborough inquired if Mr. Stevens would limit the request to 362 feet; with Mr. Stevens responding he does not see how he can meet the rest of the Codes and say yes; he would like to if the Board can tell him how he can get the building and all the ancillary structures in the 360 feet and make the project work; but he has to be practical. Commissioner Scarborough stated the Board is in a dilemma because it does not have a binding site plan; with Mr. Stevens responding he cannot make a commitment to the Board that is binding, but is willing to make a moral commitment that he would do what the County needs and wants him to do to get the project and stay as close to the street as possible.

Commissioner Ellis advised on a case like this, the Board normally would have a binding site plan which would locate the structures towards U.S. 192 and bind the whole property to certain things. Mr. Stevens inquired if the Board would allow him to return with a site plan and say he will live with it if the Board can live with it; with Commissioner Ellis responding the Board should give Mr. Stevens some parameters to work with to see if he can make it or not. Mr. Stevens stated he wants to do the project on this piece of land; he is a licensed general contractor, real estate broker, developer, and mortgage broker and knows the responsibilities of making comments when they are not true; and if some of the people were told they were adjacent to all residential property, someone told them things that were not true, and they have a recourse.

Chairman Higgs stated she is not willing to extend the MUD beyond the line to the west unless the building does not go back that far.

Commissioner Ellis stated he does not want the ingress/egress beyond the 360 feet; that would bring the structure up to about 340 feet in depth; and the only thing beyond the 360 feet should be the septic drainfield and retention area. He stated he would be looking at the site plan to see just how far north they can move the building and asphalt.

Commissioner Cook stated expansion of the MUD is the concern; the front of the property will have some sort of commercial use at some point; and if he had to choose anything, he would choose a furniture store, because there are many uses that could be put on that property legally that would be much more intense and negative if he was living in that area. He stated if something can be worked out with the applicant to have a nice up-scale furniture store, which is what they plan to put there, it would be preferable to some other uses that could go in there.

Chairman Higgs inquired if the current MUD boundary is 300 feet; with Commissioner Ellis responding that is correct. Planner Todd Corwin advised on further examination, staff has interpreted that it goes to the lot lines and would currently be approximately 360 feet. Chairman Higgs inquired if no structure would go beyond 340 feet, is the 360 feet the lot line that is equivalent to Lots 188, 189, 207 and 208, and will there be no ingress/egress on Commodore and Evergreen; with Commissioner Ellis responding it may not be allowable, but he does not want ingress/egress to the south in the residential area. Commissioner Cook inquired if Commissioner Ellis is saying no egress/ingress beyond the 360 feet; with Commissioner Ellis responding yes. Commissioner Cook stated it cannot be excluded completely because they have to pull trucks in behind the store to unload the furniture.

Commissioner O'Brien stated he agrees with the 360 feet that would put it in line with Lots762 and 763 which are BU-1; if he just built a house on Lots 167 or 187, and thought the lot across the street was RU-1-7 but is BU-1 instead, he would be angry because his whole future depended on his investment in the property also; so he would not want to go pass Lots 207 and 235.

Commissioner Ellis stated if the septic drainfield and retention pond is in the back, it would be green space back there and they could put trees all around it.

Commissioner Scarborough stated he would not have a problem with the back being used only for retention, no impervious surface, and enhanced landscaping plan; and inquired if that can be accomplished by rezoning the back portion as AU and not BU-1. Commissioner Ellis stated the drainfield is also pervious surface. Mr. Enos advised they could not rezone it to AU because all the support facilities will need to be part of the same zoning.

Commissioner Cook stated if there is a BSP that will protect the residential property, he would not have concerns, but does not want expansion beyond that. He stated the applicant has mentioned that he is willing to landscape and be flexible.

Commissioner Ellis stated the property is zoned commercial regardless of what happens tonight; and if the Board does not allow Sears to use it with the back lot for retention and a drainfield, it may have someone else come in that only needs 360 feet, but the use would be far more intense than a furniture store. Commissioner Cook stated the Board has an applicant with a particular commercial enterprise which would probably be the best that it will get for that area, so it should make an effort to work with the applicant; and repeated his statements about more intense use and negative impact that cannot be stopped by the Board. Commissioner Ellis advised across the street there is a perfect example with the sod depot in BU-1; and there has been nothing but trouble with the neighbors because the forklifts are running all day long with fumes, and everything else. He inquired how long would it take to bring in a site plan.

Mr. Stevens stated if he can get the building inside the 362 feet up front, he still has to deal with the Codes saying he needs four to one or five to one parking spaces. Commissioner Ellis inquired if the Board can waive some restrictions on parking; with Mr. Enos responding there is some authority to waive a portion of the parking, and the parking for furniture stores are less than for other retail establishments. Commissioner Ellis stated the preliminary site plan probably has more parking spaces than they will need. Mr. Stevens stated he does not deny that; Hillsborough County requires one space per 1,000 square feet; so for a 35,000 square-foot building, he would only have 35 parking spaces. Motion by Commissioner Ellis, seconded by Commissioner O'Brien, to continue Item 3 to December 4, 1995 Board of County Commissioners meeting to allow preparation of a binding site plan with the intent of moving the building and parking as far north as possible and no impervious surface south of 360 feet.

Chairman Higgs stated that is the minimum criteria identified at this point and in no way binds the Board to a decision if the criteria are met. Commissioner Ellis stated if the criteria cannot be met, Mr. Stevens can notify the County, and it will probably be denied; and recommended the site plan be received by the County on November 15, 1995 to allow time for review and notify residents to review it.

Chairman Higgs called for a vote on the motion. Motion carried and ordered unanimously. The meeting recessed at 7:11 p.m. and reconvened at 7:22 p.m.

Item 4. Joseph N. and Judith A. Blunk's request for change from AU to RR-1 on 38.49? acres located on the north side of Lake Washington Road, west of I-95, which was approved by the P&Z Board.

Motion by Commissioner Cook, seconded by Commissioner O'Brien, to approve Item 4 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 5. Mary Devon O'Brien's request for CUP for bed and breakfast inn in RU-1-9 zoning classification on 1/3 acre located on the east side of SR A1A, north of Atlantic Drive, which was approved by the P&Z Board.

Attorney Joel Moss, 47 W. New Haven Avenue, Melbourne, representing the applicant, advised the property is located on A1A south of Melbourne Beach on the oceanside; it is a three-story single-family house with two bedrooms on one floor, a third bedroom on the second floor, and other facilities on the first floor; his client does not want to turn it into a motel or anything that would appear to be a motel; and she is anxious for it to serve one family at a time for a period of time. He stated it would not become a rooming house where every individual would have a bedroom, and it would be only for families. He stated the bed and breakfast concept is quite popular throughout the United States; and all the conditions that are in Section 62-1912 for bed and breakfast inns can be met with respect to density. He stated only 50% of the house would be used for that purpose; parking is available and meets the requirements; there will be no signs indicating bed and breakfast or any type of rooming house of any sort whatsoever; and from A1A they would not know it was a bed and breakfast inn because it would be just one family living in a single-family home. He stated there are motels on that street; he would not think the motel owners would have any objection because it is more compatible with a motel than any other use; the problem with A1A becoming nothing but bed and breakfast locations has already been addressed in the Regulations in that there cannot be a bed and breakfast closer than 500 feet to the next one; so the Regulations have thought of that problem. Mr. Moss stated he hopes the 2,000 square-foot home could be used as a bed and breakfast; with the limited income Ms. O'Brien would receive from occupants using the bed and breakfast, she would be able to maintain and upgrade the facility; and it would look better with some income coming in through this use. He requested the Board approve the request and follow the staff's and P&Z Board's recommendations.

Chairman Higgs inquired if Ms. O'Brien resides at the location; with Mr. Moss responding no.

Brad Moore, 125 Sandy Shoes Drive, Melbourne Beach, Manager of Sandy Shoes Motel, advised he has five points to make: (1) he strongly supports quality business in the South Beaches; (2) historically the Board has been somewhat anti-business in the South Beaches for a number of years; (3) it now seems inconsistent to support new rental units when the Board has already been anti-rental units with existing businesses; (4) until the issue of expansion of existing businesses is finalized in October, it seems inappropriate to grant approval of this item before that is settled; and (5) the issue before the Board tonight is because the County aggressively pursued the illegal renting of short-term units in the South Beaches. He stated Deb Maynard has been pursuing people who are doing this and wants to get it legal so the Board can collect revenue by the 10% tax. He stated if there was only one bed and breakfast inn from Spessard Hollland Golf Course to the Inlet every 500 feet, there would be 125 potential bed and breakfast inns on each side.

Chairman Higgs inquired if Ms. Maynard is a County employee; with Assistant Growth Management Director Peggy Busacca responding no, she is a Department of Revenue employee. Mr. Moore apologized, and stated she is not a County employee. Chairman Higgs stated it has not been a County employee aggressively pursuing that issue. Mr. Moore stated she is aggressively pursuing the non-compliance of rental units and no revenue being collected. Chairman Higgs stated she is an employee of the State of Florida and not of Brevard County. Mr. Moore stated maybe Brevard County needs to get more aggressively involved in that.

Sandy Taldo, 8795 A1A, South Melbourne Beach, owner of Sandy Brook Motel, advised the bed and breakfast would be at the end of the road from her property and not close; as a business owner, she would like to see new businesses come in and help bring other people in; but as residential they are not paying the same taxes or insurance she is paying. She stated she would like to see their situation handled first then go on with the bed and breakfast or what other type of business that would come in; so she opposes the bed and breakfast coming in at this time.

Ernie DeSantis, 6580 South A1A, Floridana Beach, owner of the Floridana Beach Motel, advised his motel is two miles south of the proposed bed and breakfast inn; and his concern is if the Board lets this go and she decides to sell it, the next owner can put a sign up and make three rooms and rent to three different people. He stated another concern is if the Board allows it with this property, who is to say other owners will not want to make bed and breakfast inns out of their places. He stated the little motels have had a hard time getting expansion; they have their issue to get straightened out; so he would like to see something worked out before letting this project go forward.

Commissioner Cook stated the last statement may have some validity, but if this is approved as one unit, it will stay a one unit bed and breakfast and cannot arbitrarily be changed by whoever bought the property. Mr. DeSantis stated they said she would not put a sign up; and inquired if the property is sold, would the next owner be legally able to put up a sign; with Mr. Enos responding under the CUP for the bed and breakfast inn in single-family classifications, they can have up to a four square- foot wall mounted sign. Commissioner Cook stated so they can put a sign on the wall. Mr. Enos advised the density in single-family is limited because of the small lot size; and there could not be more than one family in that home. Mr. DeSantis stated if there is no wall to mount a sign, could they build a wall and put a sign on the wall; with Mr. Enos responding no, it must be on the structure itself. Mr. DeSantis inquired if that is for all bed and breakfast inns; with Mr. Enos responding only in single-family zoning classifications which this happens to be in.

Anne Marwick, 4945 S. A1A, Melbourne Beach, representing Turtle Run Apartments, advised it does not sound like a bed and breakfast; every one she has been to has been a bedroom and breakfast which meant there were several people in different rooms; if they are putting a family in the house, it would be like the rest of the rentals on the street; and they are already doing that, except now they will be legal. She stated it will hurt their business; and requested an explanation of what a bed and breakfast is.

Mr. Enos advised the Zoning Code does not define a bed and breakfast inn; there is a misconception that rental of the whole house is somehow inconsistent with County Codes, but it is not; anyone can rent any house to an entire family anywhere in the County; and the purpose of the request for a bed and breakfast inn is to allow the owner to be able to get the license she needs to satisfy the State and pay the taxes the State is demanding. He stated the purpose of the request is not directly related to the need, but it is the only means by which there can be a local solution to the problem.

Ms. Marwick stated they have been refused to add on to the density; this will add more density; and there must be someone in the house to cook the breakfast if it is a bed and breakfast; and it will open more doors and more people can do the same thing. She stated the place they have has three apartments which could have 15 rooms and be a bed and breakfast; and that is what will happen, so she disagrees with the change.

Commissioner Cook inquired if they are renting the property now and under the designation the use of the property will not change; with Mr. Enos responding it may not change, but it could change if the CUP is approved. He stated they can continue doing what they are permitted to do now, but it would also allow them to operate as a bed and breakfast inn where the owner lives on the property and they could have up to one guest under the current Code. Commissioner Cook inquired if they could only have one family at a time; with Mr. Enos responding yes.

Paul Hayden, 5105 A1A, Melbourne Beach, advised he lives two doors away from the house; he has been observing the goings on there; the biggest crowds in the area are in front of that house on the beach; so if they call it one family, the family is tremendous because there are 10 to 15 people on the beach at that house. He stated he did not realize they were renting the house at this time and thought they were all relatives because he knew the owner of the house, Reverend Owens, who told him that he is leaving the house to his relatives as a vacation place and was not interested in selling it. He stated he has the largest and most expensive home in the area; he was told when he bought the house it was a residential area; he had his mother living with him in a mother-in-law suite; and she died a few years ago and he called the Board and asked if he could rent that suite out and was told no. He stated it is very strange that a bed and breakfast could be opening up two doors away from a motel; his wife works as a part-time manager of a motel, and they are having trouble getting tenants and making ends meet; and this bed and breakfast could actually hurt the motels. He stated the street is a 55 m.p.h. street; nobody drives 55 m.p.h., they drive 65 m.p.h.; and he has almost been killed several times making a left turn into his driveway, and he has a big driveway. He stated the house has a 50-foot lot, and his lot is 85 feet; it is a dangerous spot; the driveway is small; and it will be dangerous for people to slow down and try to find the place. He stated it does not make sense to put a bed and breakfast inn there at this time. He inquired if the zoning has been changed; and stated he has not been notified of any zoning change. Mr. Hayden stated it does not seem right to make a commercial venture two doors away from his house on which he pays $4,000 a year in taxes; and it will lower the price of his home; so he is against it.

Michele Cremins, 5055 South A1A, Melbourne Beach, Ocean Pines Village, stated her property is on the north side of this property about two houses away; and inquired what is to say they cannot rent out the other bedrooms to more people without anyone knowing; with Commissioner Ellis responding they can do that now. Ms. Cremins inquired what will stop other people from making more bed and breakfast inns. She stated they are fighting for zoning now; and inquired if the Board could table it and try to figure it out, because it will hurt the motels; and she does not want to see that happen.

Geidre Snipas, 4215 South A1A, Melbourne Beach, Sea View Resort Motel, stated under the Comprehensive Land Use Plan all the little motels are losing density or have lost density; and now the Board is talking about other commercial ventures which would increase density. She stated they lost density on the grounds of traffic on A1A, buildout, and all kinds of reasons; one bed and breakfast inn will lead to another and open the door for another; A1A is very long; and every 500 feet is a lot of bed and breakfast inns. She stated there are a lot of houses that are rented legally, illegally, and all kinds of ways which would be happy to jump on the bandwagon; a bed and breakfast inn is supposed to have a hostess to take care of the place, keep law and order in the place, and prepare the meals; and it is not somebody renting out the whole house to somebody. Ms. Snipas advised George has complained about this house many times and about the numerous families renting it at one time on a weekend; to her it is not a bed and breakfast; it is a strange designation; and what is further strange is that it is the only legal way they can manipulate to rent the house legally. She stated it does not make sense to her; a house can be rented long term or short term, furnished or unfurnished, etc.; and inquired why it has to have a CUP if the need is to rent it. She stated if the owners are not there, it is not a bed and breakfast because the owner is supposed to be providing the bed and breakfast. Ms. Snipas stated they are all in limbo; they were all repressed and their businesses constricted; and the Board is talking about opening new doors for new businesses to come in and compete with them while they are unable to compete effectively.

Attorney Moss advised a bed and breakfast can be a quality use for the property; it does not have to be something that is negative in concept; most of his friends look forward to going to a bed and breakfast in New England, Georgia, and different areas for a period of time; and tourist spots, primarily in Florida, they may want to come and stay for a month or two; so it is not the same as a motel. He stated there is nothing wrong with motels or bed and breakfasts; each have their own need and attract a different market; and they are not in the same market. He stated all the people in opposition had an interest or involvement with a motel; he is sorry the motel problem exists and they are not making the income they wish; but it is not the job of the Board to restrict competition if that is what they feel will happen, nor should the Board speculate there is going to be hundreds of bed and breakfast inns just because there is that much room between Melbourne Beach and Sebastian Inlet. He stated that is pure speculation, and there is no reason to believe it will happen that way. Mr. Moss advised the fact that the Board will consider a bed and breakfast does not mean it is condoning illegal activities; it will be managed and handled in the proper way; there was a comment made it will be a house with no management; however, there is no one that told the Board yes or no that there will be no management. He stated there will be management, but it just will not be the owner; the owner has hired someone to manage the house for this purpose; so it will be managed properly and it will be an attraction for that area. He stated to assume it will create traffic problems, he does not think this or a few more inns would make that much difference on A1A at this point; it is speculation to think that is a problem; and he hopes the Board will consider the advice of staff as to what a bed and breakfast inn is and not something read in a book or seen in a movie, but legally defined as a house that can be rented for a particular purpose under the zoning allowed. He stated there is only one family and three bedrooms in this case; and the sign will have to be 2' x 2' and not gaudy or a problem to drivers or traffic on A1A; he does not see this request as being one that should be objected too; and he hopes the Board will consider it in a favorable way.

Chairman Higgs advised the Board is entertaining this particular item because the applicant has brought it to the Board as all other proposals here tonight; and the Board has not gone out and asked them to come forward with this request. She stated as for the zoning change, it is RU-1-9 and has not changed; a bed and breakfast inn is a conditional use in that area; so the hearing is on the CUP application. She inquired if there is a legal definition of a bed and breakfast inn in the Code; with Mr. Enos responding no. Chairman Higgs instructed Mr. Enos to explain the legality of renting property short term or long term. Mr. Enos advised from a zoning standpoint, the Code does not speak to long or short term occupancy, only to the number of families that can occupy a residence. Chairman Higgs inquired if more than one family can rent rooms at one time; with Mr. Enos responding no, by definition, it would be one family, and they can only rent to one family at a time.

Commissioner Scarborough advised the people who have existing motels are not opposed to having economic activity, but the action of the Board has restricted their operations; they put money into their properties with the particular thought of having commercial establishments and bringing people in to rent rooms; and the Board has restricted their capacity to expand. He stated they find a problem with this request because there could be an evolution of bed and breakfast inns that are new and different and under a different zoning classification; and it is fundamentally unfair for those people who invested over a long period of time to capture that market to be locked out.

Chairman Higgs advised the issue is a bed and breakfast inn; although it is not defined in the Codes, most people have an understanding of what it is; it is property that an owner or person provides lodging and meals and is part of the process; and the use of a single-family home as rental property is not a bed and breakfast, so she cannot support the CUP. She stated they have a problem with the State; staff should address that issue and provide a recommendation to the Board; but it is not a bed and breakfast inn and would not qualify for the CUP.

Commissioner Cook stated anyone can rent out any house in Brevard County; the home is rented now; Mr. Enos eluded to some sort of revenue problem that the CUP would solve; and he does not understand that. Mr. Enos advised this is a zoning solution to a non-zoning problem; and it is not a perfect solution to the State revenue problem, but it is the closest thing they have that addresses it to help the applicant. He stated whether or not they intend to operate it as a bed and breakfast inn in a single-family residence, it is a permitted use; if the CUP is approved, they can continue to use it as a single-family residence and rent it out short term or long term; or if they chose, they could open a bed and breakfast with one guest room. He noted if the CUP is approved, it would assist them in solving the problem with the Department of Revenue.

Commissioner Cook inquired if the problem has to do with short-term rentals; with Mr. Enos responding yes, the State defines short-term rental as similar to a hotel which requires sales tax and a license; and in order to get a license, they need a local occupational license. Chairman Higgs advised the dilemma is the State wants them to qualify for their license and in order to quality, they have to get a local license; to get that they have to have zoning; so without that they are not able to do so. She stated it is a dilemma that needs to be addressed, but this is not the way to address it. Commissioner Ellis inquired what is the way to address it; with Chairman Higgs responding she does not know, but the Board should ask staff to give it guidelines on how to address the problem. She stated there are multiple people who rent homes to families; those are not bed and breakfast inns; they are single-family homes; and the people with this house are caught between the State saying one thing and a solution that has been proposed which is not appropriate.

Commissioner O'Brien advised this should not be a solution to a State revenue problem; the motel operators have their problems caused by rezoning; and to do this would be incompatible with the area and not in keeping with the down zoning created in the past, so he will move to deny.

Motion by Commissioner O'Brien, seconded by Commissioner Higgs, to overrule the P&Z Board and deny Item 5.

Commissioner Ellis stated he was disappointed with the hotel and motel owners tonight because he fought hard for their property rights to use their properties in the South Beaches as they saw fit; they have gone through setbacks, pre-existing use, rezoning, Comprehensive Plan changes, etc.; and it is sad when government puts neighbor against neighbor. He stated because the County cracked down on the motel owners, they are down on the bed and breakfast inn; and the owner is in a "Catch 22" with the State over the revenue. He stated he remembers the arguments when one motel owner wanted to add four units, that it would be four units tonight and a Hilton tomorrow; all the owners of motels in the South Beaches know they will hear the same thing if they came in for additional motel space; and he would like to close with a statement from a letter he received from Winter Park which was also in opposition to the bed and breakfast, stating, "I hope if I am correct that the remaining multifamilies and commercial facilities will be placed in nonconforming use and slowly but sure eliminated." He stated if they do not respect one person's property rights, they are going to have a hard time defending their own when they need someone to respect their property rights.

Commissioner Cook stated he hopes the Board can work out the problem that exists with the applicant; however, using a conditional use permit solution to a non-zoning problem is not the way to proceed. He stated the Board needs to address the problem because the applicant is in a "Catch 22" situation. Commissioner Ellis stated pre-existing use was not the way to address the problem with someone who has a commercial motel and was down zoned to residential; and if there is an inability to address the problem for what it is, then the owner has to do the best she can. He stated he has not heard any other way to handle the problem for the owner. Chairman Higgs advised staff may have other options; and if the Board denies this item, it has an obligation to ask staff to come back with some ideas of how it might do it. Ms. Busacca advised they discussed a few alternatives this afternoon; one is to make this type of use a home occupation which would then be approved administratively under the home occupation license; and another would be to look at the Zoning Code and come up with a permitted use with conditions or a conditional use permit which would allow the property owner to get an occupational license. She stated staff does not want to get into regulating how long a rental unit can be rented.

Commissioner Ellis stated if the motels had not been crippled in the first place by having their zoning removed, they would be able to expand as necessary to stay profitable, and the Board would not be in this position tonight. Chairman Higgs advised that goes back a number of years beyond this Board; with Commissioner Ellis responding this Board has the ability to undo that if it desires. Chairman Higgs stated the Board direction is to look at those in October and see how to solve that problem; and staff is trying to come up with a solution.

Chairman Higgs called for a vote on the motion. Motion carried and ordered; Commissioner Ellis voted nay. Item 6. Thomas C. Gates, Jr. and Josephine B. Gates's request for CUP for pet kennel and CUP for veterinary clinic in AU zoning classification on 2.58 acres located on the east side of Babcock Street, south of Grant Road, which was approved by the P&Z Board with stipulations that all activities be conducted within an enclosed structure and no outside runs.

Tom Gates, 8040 Pine Needle, Melbourne, advised the reason he met with Chairman Higgs was to make her aware of his intentions for the property in question; she told him to make sure he was honest with the Board; and that is what he plans to do. He stated he sent a letter to Chairman Higgs with copies to all the Commissioners and is curious to know if they received it. He stated he owns three lots on South Babcock about 2,000 feet south of the intersection of Grant Road and Babcock with 600 feet of frontage; and he plans to build his house on the southernmost lot that will be his son's house eventually. He advised he tried to find property of a size where he could begin a business to supplement his income, son's income, and his retirement; when he found this property, he thought it was a good spot because it was on Babcock Street which is a major thoroughfare; and he went to the Zoning Office and obtained copies of the permitted uses, accessory uses, and conditional uses. Mr. Gates advised he was surprised that there were so many permitted uses in AU zoning; and read a portion of the Code as follows: "In addition to single-family detached dwellings, tenant dwellings, all agricultural pursuits, raising and grazing of animals, bed and breakfast inns, churches, dude ranches, fowl raising, and bee keeping, sanitariums and convalescent homes, plant nurseries, private golf courses, fish camps, private camps, foster homes and group homes." Mr. Gates stated the permitted use that caught his eye was raising and grazing of animals; he decided to build a dog kennel to raise dogs and sell puppies to pet stores primarily in Central Florida on a wholesale basis; and he discovered under conditional uses that it also allowed a pet kennel which he views as a boarding kennel, and vet clinics and hospitals. He stated he decided the conditional uses would make a great compliment to his permitted use of raising dogs; and that is when he decided to apply for the CUP. He noted he was advised to contact the people who had objections at the Zoning meeting; and he attempted to do that and spoke to all but one of them; he spoke to Richard Manna who represented the church that is going in next door and the leader of the church and provided them a site plan; and presented copies of the site plan to the Board. He introduced Brooks Watson, his engineer who did the site plan and advised he will address any technical issues that may come up regarding setback requirements, elevations, etc. Mr. Gates advised all the requirements for setbacks have been exceeded; he talked to all the people and plainly explained his intentions; from a permitted use point of view, raising dogs does not obligate him to enclose anything; and his reason for wanting to do that is to be a good neighbor because he understands the objections to odor and noise from a dog kennel. He stated he also had selfish reasons because he or his son will live next door and will be closer than anyone else; and he would not want to invest money and hurt his own investment. He stated keeping animals inside in self-contained runs away from each other is better for them; it keeps them out of the elements, and away from ticks, fleas and mosquitos; the buildings will be quite expensive because they will be air conditioned, insulated, heated and have underground septic system; and if he was just going to raise dogs, he would not have to go through all that. He stated he spoke to Ms. Fancey who made a point that she had never seen a vet clinic that boarded dogs; he called nine different veterinarians in Brevard County and four of them board dogs; so boarding is also part of a vet clinic. He noted people did not object to the vet clinic, they objected to the kennel and boarding portion; but they do not realize that raising dogs is a permitted use and that may be one of the oversights. He stated the kennel will be a much better alternative than some of the other things that are permitted uses, such as a chicken farm.

Chairman Higgs advised she did talk to Mr. Gates, submitted a memo to the Clerk as required, and and will go over what was discussed after the speakers. County Attorney Scott Knox advised when it comes to revealing what was said at a meeting, it would be a good idea to do that before the people are heard so they have an opportunity to speak to whatever was said. Chairman Higgs read her statement into the record as follows: "I met with Tom Gates and his engineer, Mr. Brooks Watson on Thursday, September 14th, along with Katherine Martin at Mr. Gates' request. Mr. Gates provided me with a proposed site plan and described his intended use for the site. He explained that people have objected to the pet kennel and not the vet clinic, but the vet clinic needs to have the ability to keep animals overnight for medical reasons. He made the point that AU zoning allows for many permitted uses, such as raising and grazing of animals that are more intense and have a greater potential of impacting neighbors than what he is proposing. If he and his wife wanted to breed dogs for example, they could do this in AU zoning now without the necessity for a CUP. He stated that he will be building his own home on the lot directly to the south of this site and will be the closest homeowner who could be impacted by this use, therefore would be especially careful to avoid problems with odors and noise. He stated his concern about the stipulation for all activities to be inside, and felt that this would prevent him from having a guard dog or to allow an animal staying at the kennel to see sunshine. Discussion took place about the water and septic system and whether the septic system could accommodate the amount of waste generated by a kennel, with Mr. Watson responding that the system they would be using would be more than adequate. I advised Mr. Gates that he should met with his neighbors and the people who objected at the P&Z meeting to see if he could iron out any problems prior to the Commission meeting. I gave him a copy of the Code showing the criteria under which conditional uses are evaluated and a copy of the P&Z Board minutes on his item."

Darcia Jones-Francey, P. O. Box 360843, Melbourne, advised her family owns property within 1,000 feet of this property; it has 300 feet on Babcock Road that is undeveloped; and it is located within the City of Palm Bay and not in the County. She stated they vehemently oppose the CUP because it is not in keeping with the present land use in that area; there are many residential homes that are already developed, notwithstanding the vacant land that is presently there that will be in the future developed into very nice homes. She stated at the P&Z Board meeting, the applicant was asked if there would be any dogs outside; he said yes, there would be one guard dog, but the other dogs would be boarded and would not be going outside; and she does not know of anyone who boarded a dog for two weeks that would not be outside. She stated the motion said there would be no outside runs, but she hopes the Board will consider what the present land use is in that area and not approve a boarding pet kennel there.

Commissioner Ellis advised the whole east side of Babcock is zoned AU, so the only people who live in that area live on the west side in the City of Palm Bay.

Michael Mercer, 1635 Peorlo Street, Palm Bay, opposed the CUP.

Brooks Watson, 1697 Willard Road, Palm Bay, Engineer of Record for Mr. Gates, advised at the P&Z Board hearing there was a stipulation made that all activities must be inside; and they find that a little too restrictive; they like the concept that all runs be inside because that is the way it is designed; but they would need room and ability to operate without violating the Zoning Code if they had obedience classes there.

Tom Gates, 8040 Pine Needle, Melbourne, advised people were concerned about everything being indoors; the dogs will live in the building with heating and air conditioning, individual runs, concrete walls, slab and tile; if he breeds pets or sells puppies, some of the dogs would be his pets; and there would be occasion where he would take his dogs out of the pen to his yard and let them run around. He stated he does not want to imply the dogs will never come out of the pens and not see daylight. Mr. Gates advised he is not a veterinarian; his plan, if the CUP is approved, is to find a licensed veterinarian who would like to have an establishment in the area and build a building to his design and standards; and the vet would run the boarding business. He stated he wants to raise dogs and sell puppies and possibly cats; if he went to the County and gave it a site plan to raise dogs, as long as he met the setback requirements and Codes, it would not be an issue and he would not be here tonight; the kennels could be built; and he would just raise dogs which is a permitted use. He stated if his business failed, he would like to be able to use the kennels for boarding. Mr. Gates advised he called to find out how many veterinarians board dogs; four of the nine he called did; he asked about the area they have; and for big dogs they are 4'x5' pens. He stated the runs he is talking about will be 22 feet long and six feet wide; it is the kind of place anyone would want to take their dogs to board; and what he is proposing is better than some alternatives that are listed as permitted uses.

Commissioner Ellis advised the entire area on the east side is zoned AU; Babcock Street will eventually be widened through that area as southeast and southwest Palm Bay grow; so the nearest neighbor would be across five lanes of highway.

Commissioner Cook advised the P&Z Board approved it by 7 to 2 vote, to be constructed in an enclosed structure; and he has concerns with the condition that all activities be conducted in an enclosed structure because the animals would not be able to get outside of the structure at times. Mr. Gates stated he agrees, and that is why he brought it up; people perceive a kennel with chain link runs and little houses in rows; that is the image people object to because of the noise and odor; and that is not what he is talking about.

Chairman Higgs advised the stipulation is to approve it with all activities conducted within an enclosed structure; and inquired if it could be changed to all kennel activities be conducted within an enclosed structure and no outside runs; with Mr. Gates responding yes.

Motion by Commissioner Cook, seconded by Commissioner O'Brien, to approve Item 6 with the stipulation of no kennel activities and no runs outside of an enclosed structure. Motion carried and ordered unanimously.

Item 7. Florida Executive Management, Inc.'s request for change from GU to AU on approximately 52 acres located on the west side of Fleming Grant Road, north of Mockingbird Lane, which was approved by the P&Z Board.

Motion by Commissioner Ellis, seconded by Commissioner O'Brien, to approve Item 7 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 8. Margie Miles and Clarence and Susie W. Ferguson's request for change from GU to RR-1 on 5.32 acres located on the north side of Craig Road, west of Friday Road, which was approved by the P&Z Board.

Motion by Commissioner O'Brien, seconded by Commissioner Cook, to approve Item 8 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 9. Marie Rowe's request for change from RU-1-11 to TR-1 on .17 acre located on the north side of Orris Avenue, east of Newfound Harbor Drive, which was approved by the P&Z Board.

Jason Hedman, 101 S. Courtenay Parkway, Merritt Island, representing the applicant; advised they are seeking rezoning to allow a trailer on the property; it was approved by the P&Z and recommended by staff; and if there is no opposition, he will reserve his time, but if there is opposition, he would like to address it.

Marilyn Bone, 1366 S. Banana River Drive, Merritt Island, advised she is an advocate for people to have a decent affordable house; however, the property is approximately 500 feet from the shore of the Banana River, and goes down through the old section of Angel City where no one went down after dark. She stated it is in transition and coming up after 25 years; and there are a few streets zoned strictly for mobile homes, and mobile homes on some of the other streets that were there before zoning was implemented; and she objects to spot zoning. She stated there is an abandoned mobile home on the property now; there are other mobile homes on the street which are very old and that people would like to replace; so if this is approved, the people across the street will apply for it also. She stated in that area the new homes are from $100,000 to $800,000; spot zoning will open a bag of worms for more mobile homes which will have to be replaced after 20 years; and it will go on and on. She stated the property values have increased in that area; and inquired when is spot zoning going to stop.

Mr. Hedman advised the property had a mobile home on it since before zoning; they want to continue that to replace the mobile home that is in disrepair; it is consistent with the area; staff's findings bear that out; and it is not spot zoning because it is continuing the character of the neighborhood.

Chairman Higgs inquired if the applicant lives there; with Mr. Hedman responding she lives on an adjoining property down the road. Chairman Higgs inquired if it is rental property; with Mr. Hedman responding it is not occupied right now. Chairman Higgs inquired if the owner will be occupying the parcel; with Mr. Hedman responding she is not right now; and he is not sure if she will move to that place once the new home comes, or whether she will rent it out; but one or the other she will still be in the neighborhood.

Commissioner Ellis advised the property is surrounded by trailers; a lot of people moved in there and built expensive homes, but when they did so, they knew the trailers were there; it is not as if the Board is putting trailers into an area of expensive homes; so he does not see a problem replacing it with a new trailer. He stated if the trailer is not replaced, they would have to try and fit a house on a sixth of an acre surrounded by trailers which is not right.

Commissioner Cook stated it was unanimously approved by the P&Z Board.

Commissioner O'Brien advised Angel City was an area with high crime rate and at the edge of being a slum where people came in and bought cheap property and put in expensive homes; and now they are complaining that what was there should not be there any longer because of their high fancy homes; and that is the philosophy of someone improving property and causing everybody else to also. He stated a letter says, "I strongly object to the rezoning because of the noise level it would create, and also the additional traffic congestion with a concentration of mobile homes"; Ms. Christie must has a different idea of what a mobile home is; this is not an RV park, it is a mobile home; and it is consistent with the character of the area. He stated it is mixed residential land use; it is compatible with surrounding land uses; it will maintain acceptable levels of service; it is consistent with the maximum allowable residential density and with the Future Land Use designation; and it is surrounded by TR-1. He inquired how did it get zoned RU-1-11 when it was TR-1.

Motion by Commissioner O'Brien, seconded by Commissioner Cook, to approve Item 9 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 10. James V. and Kerry Palermo's request for CUP for horses and CUP for a barn in SEU zoning classification on 6.27 acres located on the west side of North Tropical Trail, north of Andrix Street, which was approved by the P&Z Board.

Motion by Commissioner O'Brien, seconded by Commissioner Cook, to approve Item 10 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 11. Suzanne Lamee Bender's request for CUP for bed and breakfast inn in EU zoning classification on 1.38 acres located on the northwest corner of Sunset Terrace and Indian River Drive, which was approved by the P&Z Board.

Phil Essenpreis, 3077 Sunset Lane, Cocoa, advised he is in favor of the request.

Motion by Commissioner O'Brien, seconded by Commissioner Cook, to approve Item 11 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 12. Elbert and Jean McGinnis' request for change from GU to RRMH-1 on 2.06 acres located at the eastern terminus of Burning Tree Avenue, which was approved by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Item 12 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 13. L. Barbara Maxwell's request for change from GU to RRMH-1 on 1.25 acres located on the southwest corner of Outback Road and Satellite Boulevard, which was approved by the P&Z Board. Motion by Commissioner Scarborough, seconded by Commissioner Cook, to approve Item 13 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 14. Gary G. and Jane M. Butler's request for one flag lot in RR-1 zoning classification on 2.55 acres located east of Windover Way on the south side of Windover Way Spur, which was approved by the P&Z Board and recommended for refunding of application fee.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to approve Item 14 as recommended by the P&Z Board with refunding of application fee. Motion carried and ordered unanimously.

Item 15. Marsha R. Witt's request for CUP for agricultural pursuits in GU zoning classification on 1.38 acres located on the northwest corner of Bayfield Street and Cherokee Avenue, which was approved by the P&Z Board with stipulation of no more than 200 birds and no large birds.

Richard Duncan, representing the applicant, advised the request was to comply with the regulations without violating zoning restrictions so they can have the birds they have there now; they have had the birds there for five years; and at that time, their nearest neighbor was a quarter of a mile away. He stated since they cannot get the property zoned AU, they had to apply for a CUP because it is less than 2.5 acres. He stated the area is Canaveral Groves; in a 1,200-foot radius of their property, there are seven to nine existing agricultural pieces that are one acre; these were all done prior to the new regulations of 2.5 acres; it is consistent with the character of the area; and that is the reason they moved out there. He stated they are trying to comply with the regulations.

Commissioner Scarborough inquired how many birds are on the property; with Mr. Duncan responding right now they have several chickens and a few pet birds; they have a bird shop so they raise and sell birds at their business establishments; he has about 100 show type chickens and should dispose of all of them by the first of October; and that would leave approximately 40 birds. Commissioner Scarborough inquired what are they referring to as large birds; with Mr. Duncan responding everyone mentioned ostriches, but that is preposterous; they do not intend to have anything that large; everything they have will be consistent with pet shop type birds such as cockatiels, parakeets, finches, etc.; and the largest birds they have are two pet macaws.

David Waters, 3218 Bayfield Street, Cocoa, advised the issue is not raising of the birds, but the noise of the birds; they are extremely loud; one is loud, and there are about 14 cockatiels and macaws about 250 feet from his home; and in the evenings he can hear them in the house with the windows closed. He stated on occasions he had to turn up the television to keep from being distracted; before he moved in, he talked to Mr. Duncan about the birds and told him he did not have a problem with the birds as long as he did not have large ones; Mr. Duncan told him he was going to get large birds and put it on the other side of the property; but a year later he started building cages directly behind his house; and that is where the birds still reside. He stated Zoning considers small birds at about two pounds; two pounds is a large bird; and if it could be changed from 200 small birds to no tropical and large loud and raucous birds, he would feel better about it.

Commissioner Scarborough inquired what type of birds were out there; with Mr. Waters responding cockatiels and macaws. Commissioner Scarborough inquired what type of birds are offensive; with Mr. Waters responding the cockatiels and macaws.

Mena Waters, 3218 Bayfield Street, Cocoa, advised she supports her husband on this issue; it is an annoyance to their family; they cannot enjoy being outside with their son because of the birds; and when they have people visiting, the birds are loud and obnoxious to the point where people comment on them. She stated it is embarrassing; and she would like something done about the birds.

Commissioner Scarborough advised when the Waters moved in, they knew there were birds next door; and inquired if the birds were there illegally; with Mr. Enos responding the property has been zoned GU since 1958, and unless the operation was there before then, it would not be legal. Commissioner Scarborough inquired what type of birds did Mr. Duncan have when the Waters came to visit him; with Mr. Duncan responding the birds that are there now were there before the Waters bought the property; and the only additional birds that have come since then are the chickens. He stated the Board took action that if property is zoned AU, there is a 100-foot setback then the birds would be exempt from the Noise Ordinance; at the time he bought the property, he was told he could have birds because in GU they could do what they wanted to do; and that is why a lot of people moved to Canaveral Groves, to do what they wanted to do. He stated his neighbor saw the birds and knew he was going to expand; the birds are 118 feet from the property line, well within the 100-foot setback; and even if the property is not zoned AU, it should not matter. Mr. Duncan stated the two birds in question are pets and can be moved inside; they are two macaws that make noise in the evening as the sun goes down; but nobody has said anything about them being noisy all day. He stated Mr. Waters has lived there for two years without saying anything. Commissioner Scarborough stated Mr. Waters is not addressing the CUP and concedes that he moved in knowing there were birds there; but it is the noise as opposed to the size of the birds. Mr. Duncan stated he told Mr. Waters he would move the birds on the far east side of the property, but if the 100 feet is good enough for AU it should be good enough for any zoning classification; and he only has four or five birds in that area. Commissioner Scarborough stated the 200 birds appear to be less relevant than the noise; and suggested the Board remove the 200 birds and large birds, and discuss the issue of the birds in proximity to the property and no macaws outside. Mr. Duncan advised there is a garage on the northeast corner of his property; he has aviaries to the side of that; and that should buffer any noise.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to approve Item 15, with the stipulation that no birds be on the west side of the property, the macaws be moved indoors, and a 100-foot setback from the east property line.

Commissioner Cook inquired if the birds could be moved to the east side; with Mr. Duncan responding yes. Commissioner Cook inquired if he can accommodate the 100-foot setback on the east side; with Mr. Duncan responding there is a 160-foot right-of-way between his property and the next property. Commissioner Scarborough recommended using part of the right-of-way in the calculation of the 100-foot setback.

Commissioner Ellis inquired how far can the birds be moved from the west side; with Mr. Duncan responding about 50 feet. Commissioner Cook stated he thought all the birds were being moved out of the west side to the east side.

Discussion ensued on the location of the birds, noise, fencing, and compliance.

Mr. Waters advised Mr. Duncan told them he could move the birds to the other side of the shop about a month ago, but has not done it; and if they could be on the other side of the shop, it would buffer the noise enough.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to move the birds to the other side of the shop.

Commissioner Cook inquired if Mr. Duncan can meet the setback requirements and move the birds to the other side of the shop; with Mr. Duncan responding yes, from the east; and inquired if he has a westerly setback, easterly setback, two birds in question to move or what.

Commissioner Scarborough restated the motion to approve Item 15, subject to moving all the birds as far as Mr. Duncan can to the east on the other side of the shop; 100-foot setback using Cherokee right-of-way as part of the calculation; and the macaws be indoors. Commissioner Cook seconded the motion as restated.

Chairman Higgs inquired about the properties to the east; and Commissioner Scarborough explained a map depicting the lots and proposed location of the aviaries.

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

Item 16. Omitted.

Item 17. Jack B. and Linda K. Bonner's request for change from GU to RRMH-1 on 1 acre located on the south side of Harley Avenue, east of Satellite Boulevard, which was approved by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Item 17 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 18. Lori Beard, Kelly N. Nidy, Ron Proffitt, Suzanne E. Lemerise, William F. Kirk, Gene and Anita Roberts, and Chris Jenson's request for change from TR-1 to RRMH-1 on 10 acres located at the southern terminus of Groah Avenue and Masek Avenue, continuing south for approximately 750 feet, which was denied by the P&Z Board.

Commissioner Scarborough inquired if all the applicants are afforded ten minutes each; with County Attorney Scott Knox responding it is a total of ten minutes. Commissioner Scarborough inquired if they would prefer to have five minutes each rather than being penalized; with Mr. Knox responding the Board can waive its rules and give each five minutes. Chairman Higgs advised the Board will give each applicant five minutes.

Keith Nidy, 3414 Masek, Mims, advised he is for the rezoning; he has two children, grew up with horses, and wants to have horses; and he moved to Mims thinking one day his children could grow up riding horses.

Donna Proffitt, 3410 Groah Avenue, Mims, advised she moved from Cocoa five months ago to be in the country; they requested to have horses on the ten acres; and being five houses off Irwin, they were denied. She stated they live in over $100,000 homes and are not trying to bring in anything improper into the area; with the area being older there are a lot of homes that need improvement; and they overlooked cars on blocks without tags, pools without fences, and complained about the horses. She stated it is not fair because the horses are not going to bother them.

Ron Proffitt, 3410 Groah Avenue, Mims, advised staff recommended approval, and the P&Z Board denied it; most of the complaints were that horses would bring mosquitos and odors into the area; and he went to a veterinarian clinic and has a letter saying horses will not bring mosquitos. He stated there are three houses on Brevard Avenue that have horses; there is one house on Turnbull with three horses which is less than 9/10ths of a mile from his property; around the property is a 25-foot buffer zone on the west and south sides; and on the east side next to Tropical Isles where most of the complaints came from, there is a 50-foot buffer because they have 25 feet and his property has 25 feet that is not buildable. He stated the people who want horses and own the ten acres would not have any reason to ride down the two streets in Tropical Isles because they are dead end streets; the only two streets they would go down would be Groah Avenue, which he lives on, and Masek Avenue, which Mr. Nidy lives on; and their properties are 380 feet deep from the pavement. Mr. Proffitt stated there is a 25-foot right-of-way that belongs to the County; Zoning has no problem with people riding horses down the street; all the residents on the ten-acre parcel agreed to shovel up any droppings and take them home; so there is no reason to deny the rezoning because of their objections when there are horses already in the area. He stated he has pictures of the horses; the closest is 3/10ths of a mile on Turnbull where there are three horses on one acre; he has 1.65 acres, and counting his driveway, 2 acres; and requested RRMH-1 which is compatible with the area. Flo Lopeman, 3460 Oliver Court, Mims, representing residents on Tracy Court and Oliver Court in Tropical Villas, presented and explained maps of the area depicting the ten acres requested to be rezoned and the residents opposing the rezoning. She stated the residents at the end of the cul de sac will be facing the property even though there is a buffer which is nothing but weeds and would not keep them from looking at horses from their backyards. She presented pictures of the homes they have now; stated they are proud of their homes; and explained a picture of the ten acres which has a dirt road because they did not complete it. She stated homes on the other two streets are well kept; none of the homes are in disarray as stated; everything is TR-1; and they moved in there knowing it was all TR-1. She stated they do not want it rezoned to RRMH-1 because it will decrease the value of their home; and if they were to sell, it would be hard because people will see the horses in the back and may not want to live where there are horses and animals. She inquired what will keep them from putting other animals on the property once it is rezoned. She stated they are all opposed to the change, and hope the Board considers that they put a lot of money and time into their homes and yards to make them attractive and a quiet place to live in.

Chairman Higgs inquired what animals can be on the property if rezoned; with Mr. Enos responding any animals but horses; that is limited to four horses per acre accessory to a residence; so they must have the residence first then as many as four horses per acre. Chairman Higgs inquired if they could have 40 horses on the ten acres; with Commissioner Ellis responding it would not be practical to have that many horses.

Jeb Bynum, 3480 Oliver Court, Mims, requested the rezoning be denied as recommended by the P&Z Board. He stated he grew up in the area; found the neighborhood to be consistent with residential paved streets not a farm setting; and found Tropical Villas Subdivision in his research. He stated it is a mobile home community with brick skirting; when he made his decision to purchase his home, he made sure the neighborhood around Tropical Villas would be TR-1 and kept up; it is a residential area with children, bicycles, and paved roads; and it is not a farm-like setting. He stated the current surrounding land use is TR-1; they are requesting RRMH-1; and that is not compatible with the surrounding use. He stated he is not opposed to the new owners; their upkeep of the horses may be admirable now; but what would stop the next property owner from not taking proper care or keeping up the property.

Kathryn Chaffins, 3495 Groah Avenue, Mims, advised in 1985 she researched several areas where she and her husband wished to settle; and this was one of the areas she researched for a good residential neighborhood because they had two small children and wanted to raise them in a good area. She stated they were the first on Groah Avenue; bringing in horses is not a good idea because she believes there is a link between mosquitos and horses and encephalitis; and with all the rain they have gotten, there is a lot of standing water around. She stated there are a lot of children who would be in contact with the horses; she invested in her property not to have the value decreased by bringing in horses; and if she did not enjoy the area, she would have moved a long time ago. She stated everything around Masek and Groah, Oliver and Tracy are TR-1; everything on the north side of Irwin is agricultural; and there is more property across the road for horses. She stated she is totally against the rezoning.

Commissioner Scarborough advised it is difficult getting into an area that is evolving from agriculture to residential, but a person has a reasonable right to expect consistency if he chose an area that has TR-1 zoning that the Board would not change it. He stated the Board may think horses are okay, but they are the ones who put the money down to buy a home and make the mortgage payment; and because of their investment, he would defer the question of quality of life and property values to them and accept the P&Z Board's recommendation.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to deny Item 18 as recommended by the P&Z Board.

Commissioner Ellis stated he will support the motion because of the surrounding properties, but coming from a background located near horses, they do not bring mosquitos and encephalitis.

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

Item 19. Gregory T. and Sheila C. Holmes' request for change from GU to AU on 4.76 acres located on the east side of Fishtail Palm Street, south of Date Palm Street, which was approved by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Item 19 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 20. Zoning Director's Report. No report.

Item 21. Jacob Aaron Corporation and Cape Canaveral Heights Properties, Inc.'s request for change from AU to TR-3 on 53 acres located west of Adamson Road, north of SR 524, which was tabled by the P&Z Board to its October 2, 1995 meeting with waiver of reprocessing fee.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to table Item 21 as recommended by the P&Z Board with waiver of the reprocessing fee. Motion carried and ordered unanimously.

Item 22. 4 G's of Brevard County, Inc.'s request for change from GU to RRMH-1 on 1 acre located on the north side of Terri Lee Avenue, east of Satellite Boulevard, which was withdrawn.

The Board accepted withdrawal of Item 22 by the applicant.

DISCUSSION, RE: ZONING BOOKS

Commissioner O'Brien advised he and Mr. Enos talked about the way the Board receives zoning books; he prefers to have the items three-hole punched instead of bound because it costs money to do it the way it is being done; and if Commissioners agree, Mr. Enos will send everything out three-hole punched and Commissioners can put them in their own books and change the cover. He stated it can be taken out and put in a file folder and put away instead of sitting on a shelf collecting dust. He stated all the letters he received were put with the appropriate items; and his office cuts the Agenda apart and puts it with the sections so he does not have several pieces of paper to look at because it is condensed into one item.

Motion by Commissioner O'Brien, to dispense with getting zoning books, and Commissioners receive three-hole punched copies of items.

Commissioner Ellis inquired if it is a hassle putting the books together; with Zoning Director Rick Enos responding no, he is willing to do whatever the Board wishes and is willing to do it one way for some and another way for others.

Commissioner Scarborough stated he will not second the motion, but will switch from the binders. Chairman Higgs suggested Commissioners state their preferences to Mr. Enos. Commissioner O'Brien stated he would like to see the P&Z Board's recommendations on the agenda; with Chairman Higgs responding it is the same agenda given to the P&Z and Local Planning Agency.

DISCUSSION, RE: CONTRIBUTIONS FOR SNACKS

Commissioner Scarborough advised Peggy Busacca has been bringing things to the meetings for Commissioners; sometimes he does not get lunch and misses dinner when meetings go until midnight; and suggested each Commissioner give ten dollars a month rather than impose on Ms. Busacca. He stated they could have crackers and cheese, etc. so they do not have to sit all day without meals.

Upon motion and vote, the meeting adjourned at 9:29 p.m.

ATTEST:

SANDY CRAWFORD, CLERK

SEAL

NANCY N. HIGGS, CHAIRMAN

BOARD OF COUNTY COMMISSIONERS

BREVARD COUNTY, FLORIDA