The Board of County Commissioners of Brevard County, Florida, met in regular session on November 20, 1997, at 5:32 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Melbourne, Florida. Present were: Chairman Helen Voltz, Commissioners Truman Scarborough, Randy O'Brien, Nancy Higgs, and Mark Cook, Community Development Administrator Peggy Busacca, and Assistant County Attorney Eden Bentley. Absent were: County Manager Tom Jenkins, and County Attorney Scott Knox.

The Invocation was given by Chairman Helen Voltz.

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

APPROVAL, RE: USE OF FORMER CHAIRMAN'S SIGNATURE PLATE

Community Development Administrator Peggy Busacca requested permission to use former Chairman O'Brien's signature plate until a new plate is made for Chairman Voltz.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to approve using former Chairman O'Brien's signature plate until a new plate is made for Chairman Voltz. Motion carried and ordered unanimously.

DISCUSSION, RE: CHILDREN'S SERVICES COUNCIL APPOINTMENT

Commissioner Higgs stated she has been serving on the Children's Services Council; she has been nominated to serve as an officer; and inquired if she will be appointed to the Council for the next year. Chairman Voltz advised Commissioner Higgs will remain on the Children's Services Council.

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATIONS OF NOVEMBER 3, 1997

Chairman Voltz called for the public hearing to consider recommendations of the Planning and Zoning Board at its May 5, and November 3, 1997 meetings as follows:

Item 10. South Palm Bay Development Corporation's request for Conditional Use Permit for Land

Alteration in an AU zone on 46.276 acres located 0.17 mile south of Micco Road and approximately 0.21 mile west of Bird Drive, which was approved by the Planning and Zoning Board.

Commissioner Higgs stated she received a letter from the applicant requesting Items 10 and 11 be tabled to the January, 1998 meeting.

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to table Item 10 to the January 29, 1998 Zoning meeting. Motion carried and ordered unanimously.

Item 11. South Palm Bay Development Corporation's request for Conditional Use Permit for Land Alteration in an AU zone on 49.719 acres located on the south side of Micco Road, approximately 0.21 mile west of Bird Drive, which was approved by the Planning and Zoning Board.

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to table Item 11 to the January 29, 1998 Zoning meeting. Motion carried and ordered unanimously.

Item 7. Irving Winkler; Donald D. & Marie E. Donze; Ruth Satt; Patricia M. Carr, Trustee; Donald C. Brooks; Col. Virgil W. and Virginia P. Munsey; Angelo & Roberta Frodella; T. Chappell; William Vernon Phillips; Wilmon N. & M. Carolyn Linger; Leroy Conner; Wanda Elizabeth & Allen Robert Carnes; Donald Lee DeSha; Ira Zager, Trustee; Michael R. & Stella J. Fitzgibbons; James F. (Jr.) & Jacqueline Osteen's request for change from GU to SR with a Binding Development Plan limiting development to one unit per 2? acres overall, not to exceed 80 units on the site, and transfer of development rights from a nearby 60? acre tract comprised of mostly wetlands, on 243.02 acres, located on the north side of Canaveral Groves Boulevard, approximately 650 feet west of Alan Sheppard Avenue, which was approved by the P&Z Board with Binding Development Plan including statement "access to Grissom Road, if available."

Commissioner Scarborough stated he has questions about Item 7; and expressed desire to meet with staff and the applicant. Several members of the public indicated desire to speak before the item is tabled.

Item 16. The Viera Company's request for change from BU-1 to GML on 1.96? acres located on the east side of Murrell Road, approximately 0.27 mile north of Wickham Road, which was approved by the Planning and Zoning Board.

Commissioner Cook indicated desire to table Item 16 to the January zoning meeting to allow more time to meet with the residents of the area.

Hassan Kamal, representing The Viera Company, indicated The Viera Company's willingness to cooperate; and advised the site planning process has begun. Commissioner Cook stated the site planning and equipment item will go forward and not be affected by the delay.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to table Item 16 to the January 29, 1998 Zoning meeting. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATIONS OF MAY 5, 1997

Chairman Voltz called for the public hearing to consider the recommendations of the Planning and Zoning Board made at its May 5, 1997 meeting, as follows:

Item 6. Ronald E. Dimenna's request for change from SR to SR with a Binding Development Plan for a maximum of 1.23 units per acre on 21.24 acres located on the south side of North Tropical Trail, approximately 200 feet west of Colony Park Drive, which was approved by the Planning and Zoning Board with a BDP as voluntarily submitted by the applicant.

Zoning Official Rick Enos advised there is a request by the applicant to table Item 6 on the Special Agenda.

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to table Item 6 to the May, 1998 Zoning meeting. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATIONS OF JULY 7, 1997

Chairman Voltz called for the public hearing to consider the recommendations of the Planning and Zoning Board made at its July 7, 1997 meeting, as follows:

Item 27. Howard A. and Gerry L. Simmons' request for change from AU to BU-1 on .79 acre located on the west side of Wickham Road, approximately 0.79 mile north of Pineda Crossing Drive, which was approved by the Planning and Zoning Board.

Lisa Lombardi, Civil Engineer representing George Tsaftarides, advised the property is approximately .83 acre, 100 feet by 350 feet, with 100 feet of frontage on Wickham Road; described adjacent properties; and stated BU-1 is compatible with the adjacent properties and is the highest and best use of the property. She stated she prepared a final engineering site plan for the property; and they are proposing a single building to be used for retail and professional office space.

Commissioner Cook inquired if Ms. Lombardi intends to submit the final engineering or is it just for the Board's information; with Ms. Lombardi responding it is for the Board's information. Commissioner Cook inquired about the building's use; with Ms. Lombardi responding the retail and office use will be located in one building; and this is relocating the existing George's Fashions business. Commissioner Cook stated this is appropriate for the area and falls within the Comprehensive Plan.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to approve Item 27 as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATIONS OF OCTOBER 6, 1997

Chairman Voltz called for the public hearing to consider the recommendations of the Planning and Zoning Board made at its October 6, 1997 meeting, as follows:

Item 4. Gertrude E. Dixon's request for change from GU to RR-1 on the front 200 feet with an Interpretation of a Home Occupation for Computer Generated Graphics & Signs, and an Expansion of the Mixed-Use District and change from GU to BU-1 on the remainder of the 2.25 acres located on the south side of Lake Drive, approximately 0.30 mile east of Range Road, which was approved by the Planning and Zoning Board for RR-1 and interpretation of home occupation and BU-1 with Binding Development Plan limiting access from S.R. 520 only. The Mixed Use District expansion request withdrawn by applicant.

Mike Conn, representing applicant Gertrude Dixon, stated the property is for sale; the contract with the buyer is contingent on approval of the zoning; and the request was tabled at the last meeting due to time constraints. He stated John Cowart is in opposition; he indicated there are no businesses within one-half mile of the subject property; and he expressed concern about the future use of the property as well as access to the location from Lake Drive. He advised of other existing businesses in proximity to the subject property including Mr. Cowart's nursery; and stated on Lake Drive, from Clearlake to Range Road, business operations comprise 31% of the road frontage, and on Lake Drive, from Clearlake Road to Cox Road, business operations comprise over 75% of the road frontage. He stated the property is shown in the Comprehensive Plan as General Use; and described the zoning of adjacent properties. He advised a Binding Development Plan was submitted limiting the access to the BU-1 location from S.R. 520; and the original submission also called for a wall separating the commercial and residential, which is currently part of the Code. He stated if the Code changes and the applicant is bound under the BDP for a wall, it would represent an undue burden; but the applicant is willing to comply with all restrictions and Codes in effect at the time he files his BDP. He noted the BDP was amended to add language as recommended by the County Attorney and Zoning Official; and the applicant is ready to submit the BDP.

Linda Wise and James Costigan spoke in support of the requested zoning.

John Cowart advised there was no BU-1 zoning within the area; the item was tabled due to questions regarding access; and inquired if there is a BDP and are there any variances involved. He inquired about width of access, the wall, transmission line, and second easement.

Syble Clark and Gertrude Dixon waived opportunity to speak.

Commissioner Cook inquired about the wall; with Zoning Official Rick Enos responding the solid masonry wall would be required between the parcel and any residential parcel. Commissioner Cook inquired about the gas easement as access to SR 520; with Mr. Enos responding the BDP states there will be access easement to the BU-1 parcel only south to SR 520, but does not say whether the easement will be on the east or west side of the property. Commissioner Cook inquired if the easement is acceptable; with Mr. Enos responding a 20-foot easement would not be acceptable. Mr. Enos advised if the easement can be increased to 25 feet, the Board may find that acceptable, but it will require action of the Board. Mr. Conn clarified Mr. Cowart is referring to an easement on the other side of the property; but the gas easement is 30 feet wide and does comply with Code; and the owner is willing to comply with all current regulations when it comes time to build. Commissioner Cook inquired if the applicant is willing to put up a gate with the key to be held by the gas company for entrance from Lake Drive. Mr. Conn responded the easement is for all intents and purposes a road; and expressed concern about access for emergency vehicles. Commissioner Cook advised it is an easement, not a dedicated right-of-way, and unless there is a locked gate, people will enter from Lake Drive. Mr. Conn requested the wall issue be kept separate; advised the applicant is willing to put up the gate; and stated since there has already been approval for home occupation, this issue will not come up for two and one-half years. Commissioner Cook stated the intent is to not have ingress and egress from Lake Drive; and inquired if the applicant is willing to add that to the BDP; with Mr. Conn responding affirmatively.

Motion by Commissioner Cook, seconded by Commissioner O'Brien, to approve Item 4 as RR-1 with interpretation of a home occupation; and approve BU-1 with Binding Development Plan limiting access from S.R. 520 only, as amended by Zoning Official Rick Enos and agreed to by applicant, including provision for a locked gate blocking entrance from Lake Drive with the key to be held by the gas company.

Chairman Voltz inquired if Commissioner Cook is saying only the gas company; with Commissioner Cook responding it is a gas company easement.

Commissioner Scarborough inquired about including the gate and key in the BDP; with Assistant County Attorney Eden Bentley responding conceptually she has no problem with it; however, it will be necessary to contact the gas company before proceeding much further. Mr. Conn inquired if the zoning would remain in effect if the gas company refuses to hold the key for the locked gate; with Commissioner Cook responding it would be necessary to go back through staff, although the Board could probably waive the fee.

Commissioner O'Brien stated he met with Mr. Conn to discuss the item. He requested the motion be amended so that if the gas company does not want to hold the key, staff could administratively fix the problem rather than bringing it back to the Board.

Commissioner Cook accepted amendment to the motion to grant permission for staff to fix the problem administratively if the gas company refuses to hold the key.

Attorney Bentley advised if the Binding Development Plan is going to be changed, it will require a new public hearing. Discussion ensued on the BDP.

Chairman Voltz called for a vote on the motion, as amended. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATIONS OF NOVEMBER 3, 1997

Chairman Voltz called for the public hearing to consider the recommendations of the Planning and Zoning Board made at its November 3, 1997 meeting, as follows:

Item 1. W. N. Jones' request for change from AU to ARR on 2.32 acres located on the north side of Breckinridge Avenue, approximately 0.24 mile east of Satellite Boulevard, which was approved by the Planning and Zoning Board.

Motion by Commissioner Scarborough, seconded for discussion by Commissioner Cook, to approve Item 1 as recommended.

Commissioner Higgs stated she has serious concerns about ARR in the Satellite Boulevard area; in this instance, the property is completely surrounded by AU; the Board has asked for a staff report; and she hopes the issue will be discussed at a workshop early in January, 1998. She stated it is her intention to vote against all changes to ARR in this area. Chairman Voltz noted precedent has been set. Commissioner Higgs stated in this area there is a stronger presence of AU than ARR; and the Board should table all requests until the issue has been discussed in the workshop. Commissioner Scarborough stated there is not a level of incompatibility that is causing a problem.

Chairman Voltz called for a vote on the motion. Motion carried and ordered; Commissioner Higgs voted nay.

Item 2. Michael D. and Suzanne Dininny's request for change from GU to AU on 2.38 acres located on the west side of Florida Palm Avenue, approximately 0.21 mile north of Areca Palm Street, which was approved by the Planning and Zoning Board.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to approve Item 2 as recommended. Motion carried and ordered unanimously.

Item 3. Raymond C. Appen's request for change from AU to EU on 17.68 acres located on the west side of North Indian River Drive, approximately 150 feet south of Brookhill Drive, which was approved by the Planning and Zoning Board.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Item 3 as recommended. Motion carried and ordered unanimously.

Item 4. John W. and Cathe S. Gibney's request for change from GU and AU to SR on 4.09? acres located approximately 270 feet south of Hammock Trail, and approximately 500 feet west of North Carpenter Road, which was approved by the Planning and Zoning Board.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Item 4 as recommended. Motion carried and ordered unanimously.

Item 5. 4 G's of Brevard County, Inc.'s request for change from GU to ARR on 1.02 acres located on the south side of Sharpie Avenue, approximately 300 feet east of Satellite Boulevard, which was approved by the Planning and Zoning Board.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Item 5 as recommended. Motion carried and ordered; Commissioner Higgs voted nay.

Item 6. Dixie L. Railey's request for change from GU to ARR on 1.03 acres located on the east side of Freda Trail at the eastern terminus of Outback Road, and approximately 0.43 mile east of Satellite Boulevard, which was approved by the Planning and Zoning Board.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Item 6 as recommended. Motion carried and ordered unanimously.

Item 7. Irving Winkler; Donald D. & Marie E. Donze; Ruth Satt; Patricia M. Carr, Trustee; Donald C. Brooks; Col. Virgil W. and Virginia P. Munsey; Angelo & Roberta Frodella; T. Chappell; William Vernon Phillips; Wilmon N. & M. Carolyn Linger; Leroy Conner; Wanda Elizabeth & Allen Robert Carnes; Donald Lee DeSha; Ira Zager, Trustee; Michael R. & Stella J. Fitzgibbons; James F. (Jr.) & Jacqueline Osteen's request for change from GU to SR with a Binding Development Plan limiting development to one unit per 2 ? acres overall, not to exceed 80 units on the site, on 243.02 acres located on the north side of Canaveral Groves Boulevard, approximately 650 feet west of Alan Sheppard Avenue, and transfer of development rights from a nearby 60? acre tract comprised of mostly wetlands, which was approved by the Planning and Zoning Board with BDP including statement "access to Grissom Road, if available."

Rodney Honeycutt, representing the applicants, stated they have reconsidered, and would agree to tabling to December 11, 1997.

Commissioner Scarborough expressed concern about issues concerning the transfer of development rights and access to Grissom. He inquired if he could include all interested parties when he meets with Mr. Honeycutt; with Mr. Honeycutt responding it is okay. Commissioner Scarborough requested staff get the telephone numbers of all interested parties who are present.

Commissioner Cook inquired if there will be a perpetual conservation easement; with Commissioner Scarborough responding that is one of the questions to be answered. Commissioner Higgs advised she has questions regarding the lack of contiguous properties and how the transfer of development rights will be handled; and requested staff keep all Commissioners informed. Commissioner Scarborough requested Commissioners express their concerns to Attorney Bentley who will follow through on the concerns. Chairman Voltz expressed concern that those people who are present to speak may not have an opportunity to speak. Commissioner Scarborough assured everyone will have a right to speak at the next public hearing.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to table consideration of Item 7 to December 11, 1997. Motion carried and ordered unanimously.

Item 8. Allah Groves, a Florida General Partnership's request for change from AU to EU on 91 acres located on both sides of South Courtenay Parkway, approximately 0.12 mile south of Bridgewater Place, which was approved by the Planning and Zoning Board.

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

Item 9. William R. and Kimberlee D. Cochran's request for change from AU to RR-1 on 12.50 acres located on the south side of east Crisafulli Road, approximately ? mile west of Judson Road, which was approved by the Planning and Zoning Board.

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to approve Item 9 as recommended. Motion carried and ordered unanimously.

PUBLIC COMMENT

Robert J. Smith, representing the people in Barefoot Bay, stated he was present to address Items 10 and 11, which were previously tabled to another meeting. He commented on the air curtain incinerator which was approved on October 23, 1997; and advised of its proximity to the proposed borrow pits. He outlined the traffic, environmental, and noise impacts of the proposed borrow pits on Barefoot Bay; and advised of smoke impacts of the incinerator.

Item 12. Albert D. and Rosemarie Grover's request for change from BU-1 to RU-1-13 on 1.45 acres located on the east side of U.S. 1, approximately 0.11 mile north of Berry Road, which was withdrawn by the applicant prior to the Planning and Zoning meeting.

Item 13. Grady G. and Gail Lynne Hudmon, Commissioner-trustees' request for a Mixed Use Boundary Expansion and change from GU to AGR on 87 acres located on the south side of Micco Road, approximately ? mile east of I-95, which was approved by the Local Planning Agency and the Planning and Zoning Board.

Motion by Commissioner Higgs, seconded by Commissioner Cook, to approve the Mixed Use Boundary Expansion on the PIP portion of the property only and zoning as recommended. Motion carried and ordered unanimously.

Item 14. John and Vickie Romano's request for change from BU-1 to BU-2 on 1.9 acres located on the west side of U.S. 1, approximately one mile south of Valkaria Road, which was approved by the Planning and Zoning Board.

Motion by Commissioner Higgs, seconded by Commissioner Cook, to approve Item 14 as recommended. Motion carried and ordered unanimously.

Item 15. Henry E. Payne's request for Small Scale Plan Amendment to change land use from residential to Mixed Use and from AU to BU-1 on 2.17 acres located on the south side of Ramblebrook Street, just east of I-95, which was approved by the Local Planning Agency and the Planning and Zoning Board.

Jack Spradling, representing Henry Payne, stated the intent is to put a commercial office building opposite the current building; and Payne Engineering owns all the property on both sides of Ramblebrook Street up to the first residence which is approximately one-quarter mile from I-95.

Commissioner Higgs inquired how much of the BU-1 property across the street is developed; with Mr. Spradling responding there is only one building on the property across the street, and the rest is used as a park. Commissioner Higgs inquired about the proposed use of the property to be rezoned; with Mr. Spradling responding an office building.

David Gasperini and Charles Nash spoke in opposition to the rezoning.

Commissioner Higgs stated the Future Land Use Map shows the surrounding property is entirely residential except for the BU-1 property across the street; and any Mixed Use District established in this area would be inconsistent with the existing Future Land Use Map. She stated the locational criteria in the Future Land Use Policy indicate that commercial zones are not appropriate on a residential street, but should be at minor/major arterial intersections; and the request would be inappropriate as well as inconsistent with the Comprehensive Plan.

Motion by Commissioner Higgs, seconded by Commissioner Cook, to overrule the Planning and Zoning Board and deny Item 15. Motion carried and ordered unanimously.

Item 17. Robert M. and Rose Mary Shoff and E. Boyd and Belva Shoff's request for change from GU and RU-2-10 to RU-1-13 on 6.40 acres located on the west side of U.S. 1 approximately 350 feet south of Allen Hill Avenue, which was approved by the Planning and Zoning Board.

Motion by Commissioner Cook, seconded by Commissioner Higgs, to approve Item 17 as recommended. Motion carried and ordered unanimously.

Item 18. Joan Roderick's request for a Conditional Use Permit for a Guesthouse in an RU-1-13 zone on .52 acre located on both sides of Rockledge Drive, approximately 230 feet north of Bonaventure Drive, which was approved by the Planning and Zoning Board.

Joan Roderick stated the request is for a Conditional Use Permit for a guesthouse for her aging parents and other family, and will be used for family only.

Roy Laughlin, representing his mother whose property borders the subject property, voiced opposition to the request for CUP due to lack of room, the character of the neighborhood, effect of septic tanks on river, and impact on surrounding properties. He submitted photographs of the neighborhood. He advised he sent a letter to Commissioner Cook; with Commissioner Cook advising he forwarded the letter to the Zoning Official. He expressed concern about setting precedent for rental property.

Mary King advised of a petition signed by neighbors in opposition to the CUP; and expressed concerns about privacy and the possibility the guesthouse will be used as a rental property.

Ms. Roderick advised of rental property in the neighborhood; stated she tried to sell her house because her business was in Winter Park; however, she ultimately decided to close her shop in Winter Park and work in Rockledge. She stated she does not plan to sell her home, and recently turned down a full-price offer on her house. She explained why she wants a guesthouse; stated she works out of her home as an interior designer; she meets all requirements for the CUP; and her property is appropriate for what she wants to do. She stated the regulations forbid renting of a guesthouse.

Chairman Voltz stated there must be substantial and competent evidence for the Board to vote against this request.

Commissioner Cook stated there is substantial evidence, and he has concerns about compatibility. He advised there is another house to the rear; he visited the site; and he does not see how to put another structure between the two existing structures. He stated there are other options which do not require a CUP; and commented on septic tanks. Chairman Voltz advised there would be no kitchen in the new facility.

Ms. Roderick questioned how the pictures were made; stated looking out from her house, it is not possible to see the other home; and described the area. Mr. Laughlin stated the pictures were taken from the roof of the house next door; the land is not level; and if another structure is built, at least the roof and upper portion of the house will be visible. He stated Mr. Orcutt's house is behind Ms. Roderick's house, and he signed the petition against the CUP.

Commissioner Cook expressed concern about having another structure between the two houses which almost creates a multi-family situation in a single-family residential area. He stated an accessory structure could be built without a permit; the house could be expanded; but building a guesthouse is not compatible with the area, especially on a 75-foot lot.

Chairman Voltz inquired if Commissioner Cook went into Ms. Roderick's back yard; with Commissioner Cook responding he stood at the street and looked through the back yard, but did not go into it. Chairman Voltz stated the only fair thing would be to go into the back yard to see what could be seen. Commissioner Cook stated there definitely is a house in the back with a chainlink fence; and he went to the house in the back and looked toward the street. He stated he is sympathetic but the change will be permanent; and if the house was sold, the guesthouse may not be used for someone's parents. He stated it would be more compatible if there was not a house behind Ms. Roderick's house.

Motion by Commissioner Cook, seconded by Commissioner O'Brien, to overrule the Planning and Zoning Board and deny Item 18.

Chairman Voltz requested the County Attorney address the competent and substantial evidence to deny the CUP. Assistant County Attorney Eden Bentley advised at the beginning of the Zoning Booklet, there are general standards of review including compatibility and detrimental impact as a result of the CUP. Chairman Voltz inquired who will define that; with Attorney Bentley responding it would eventually be determined by the courts, and the more reasons stated in the record, the better the County tends to do in court.

Commissioner Cook stated it would change the character of the neighborhood; it is not compatible; and it would be a detriment and devalue adjacent properties. He advised there are other options which can be entertained to accomplish what Ms. Roderick is trying to do.

Ms. Roderick stated she lives in this area; there are guesthouses up and down Rockledge Drive; and described the area. She stated she is not asking for anything different, but wants to enjoy her property; there is not a house behind her which can be seen from her property; and in order to build onto her home, she would have to go up another level, which would result in her looking down on her neighbors. She stated she works from her home, and in order to build onto the house, she would have to move out; and stated before she made application, she made sure she met all the requirements.

Commissioner O'Brien stated it is out of character for the neighborhood; it is inconsistent with the abutting properties; the applicant has other options; and the evidence has been stated strongly.

Commissioner Scarborough stated it can be structured so the rental would not be a question; but the problem is the width of the lot. He stated enough evidence has been brought forward that there will be an overcrowding of the lot.

Chairman Voltz stated she is not going to support the motion because there is not substantial and competent evidence. She stated she has not looked at the property; she understands having to take care of one's parents; and looking at the picture, she does not see that it would be a problem. Commissioner Cook stated he understands having the responsibility for one's parents.

Chairman Voltz called for a vote on the motion. Motion carried and ordered; Commissioner Voltz voted nay.

Item 19. Diana C. and John Cashe's request for change from RU-2-10 to RU-1-17 on 0.64 acre located on the south side of Sue Drive, approximately 0.11 mile west of Clearlake Road, which was approved by the Planning and Zoning Board.

Motion by Commissioner Cook, seconded by Commissioner O'Brien, to approve Item 19 as recommended. Motion carried and ordered unanimously.

Item 20. Timothy Stickrath Developer, Inc., a Florida Corporation and U.S. SPRINT Communications Company, L.P.'s request for change from RU-1-7 and GU to BU-2 on 3 acres located on the north side of Tkacs Drive, east of the F.E.C.R.R. and approximately 300 feet west of U.S. 1, which was approved by the Planning and Zoning Board.

Commissioner Cook stated this is the rear of a landscaping business off U.S. 1, and the rear of the property abuts the railroad tracks. Commissioner Cook stated he viewed the property; there was some concern when the front of the property was rezoned; but the landscaping is magnificent.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to approve Item 20 as recommended. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATION OF AUGUST 4, 1997, ADMINISTRATIVE REZONINGS

Item 1. Section 14, Township 29, Range 38, Parcel 258, owned by Robert E. and Joann S. Schuett, and tabled to April 6, 1998 P&Z meeting by the Planning and Zoning Board.

Zoning Official Rick Enos requested the item be tabled to April 6, 1998 so the applicant will have an opportunity to make application for a Comprehensive Plan amendment.

Motion by Commissioner O'Brien, seconded by Commissioner Higgs, to table Item 1 to April 6, 1998 Planning and Zoning meeting as recommended. Motion carried and ordered unanimously.

The meeting recessed at 7:06 p.m. and reconvened at 7:24 p.m.

PUBLIC HEARING, RE: ORDINANCE AMENDING LAND ALTERATION SIZE LIMITATION WITHIN INDUSTRIAL ZONING CLASSIFICATIONS

Zoning Official Rick Enos advised there are three ordinances for the Board's consideration; and outlined the public hearing requirements.

Motion by Commissioner Cook, seconded by Commissioner O'Brien, to adopt an ordinance amending Chapter 62, "Land Development Regulations", Code of Ordinances of Brevard County, Florida; amending Article VI, Division 4, Subdivision VII, specifically amending the area limitations pertaining to land alteration permits within the following subsections; 62-1514(3) "Planned Business Park," 62-1542(3) "Planned Industrial Park," 62-1543(3) "Light Industrial," and 62-1544(3) "Heavy Industrial"; providing for conflicting provisions; providing for severability; providing for area encompassed; providing an effective date; and providing inclusion into Code.

Commissioner Higgs requested information on why this ordinance was brought forward. Mr. Enos advised the ordinance was initiated by staff to correct a gap in the Ordinance; and explained the problem with the maximum set at 10 acres and 50 acres for a mine.

Discussion ensued on acreage for mining operations and borrow pits, and operations under different zoning classifications.

Planner George Ritchie advised mining and borrow pits are defined separately in the Zoning Code; they have different allowances for use; both include land alterations; however, the scope of work for a mining and smelting operation is more extensive, and it is a higher intense use with different setbacks. Commissioner Scarborough suggested looking to the operation rather than the size of the parcel. Community Development Administrator Peggy Busacca advised of the situation with Carriage Gate where the area was mined knowing that a subdivision was going to be put in; there were smaller mining areas because some uplands were preserved; and there was not the impact to the neighbors because they did not mine all the way to the edge of the property. She stated larger mining operations tend to go on for a number of years; and advised one such operation is on Murrell Road. Commissioner Scarborough stated maybe the extent of the activity and duration should be the defining points instead of acreage. Ms. Busacca stated the Board may also want to consider how close the operation goes to the edge of the property. Commissioner Scarborough stated these are relevant issues the Board should consider instead of acreage issues which may circumvent the main issue; and expressed desire to delay the item to December 9, 1997.

Mr. Enos stated currently a land alteration permit is for different sizes in different zoning classifications; in the GU and AU zoning classifications a land alteration permit is 50 acres; but in IU a Conditional Use Permit for Land Alteration is maxed out at 10 acres. He stated there is a CUP for a mine in the same classification that starts at 50 acres which leaves a gap between 10 and 50 acres; and it is possible to do a bigger land alteration in GU or AU than in IU and IU-1.

Commissioner Scarborough stated that does not make sense; he still has a problem with why it maxes out at 50 acres, when it can be circumvented; and he does not have a problem with filling the gap.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to continue the public hearing to consider ordinance amending land alteration size limitation within industrial zoning classifications to December 9, 1997.

Attorney Bentley requested the Board clarify that it will take additional public comment on December 9, 1997; with Chairman Voltz responding it will.

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

Commissioner Higgs inquired if the Board will get additional information from staff; with Commissioner Scarborough responding he hopes the Board gets some answers. Mr. Enos stated staff will try to make clear the differences in the Code between a land alteration and a mine.

PUBLIC HEARING, RE: ORDINANCE AMENDING SETBACK PROVISIONS FOR DETACHED ACCESSORY STRUCTURES LOCATED WITHIN CERTAIN RESIDENTIAL ZONING CLASSIFICATIONS

Chairman Voltz called for the public hearing to consider an ordinance amending setback provisions for detached accessory structures located within certain residential zoning classifications.

Motion by Commissioner Cook, seconded by Commissioner Voltz, to adopt an ordinance amending Chapter 62, "Land Development Regulations", Code of Ordinances of Brevard County, Florida; amending Article VI, Division 4, Subdivision II, IV, and V, specifically amending Subsection (5)(b) within the following Sections 62-1338, 62-1339, 62-1340, 62-1341, and 62-1403; amending Subsection (2) within Section 62-1334; amending Subsection (5)(c) within Section 92-1402; and amending Subsection (D)(7) within Section 62-1446 concerning accessory building setbacks from the side and rear property lines; providing for conflicting provisions; providing for severability; providing for area encompassed; providing an effective date; and providing inclusion into the Code.

Commissioner Cook stated the change is making the setback consistent at 5 feet rather than 7.5 or 10 in some residential classifications.

Commissioner Scarborough stated this came forward when Scott Ellis was on the Board; and inquired why has it taken so long to come back before the Board. Mr. Enos responded there are numerous ordinances on the list; and staff has attempted to prioritize them. Commissioner Scarborough stated he has not had a lot of calls concerning the setbacks; with Commissioner O'Brien agreeing. Chairman Voltz stated it must have been a problem for someone along the line. Commissioner Scarborough stated if former Commissioner Ellis had come to express his feelings tonight, it would be one thing, but he cannot support it.

Commissioner Higgs stated she does not support going forward with the issue; there was discussion at one time; but she has not had anyone asking for this.

Commissioner O'Brien stated in his neighborhood the houses have a 7.5-foot setback which means there is 15 feet between houses; and explained the difficulties in having work done behind the houses.

Commissioner Cook withdrew the motion. He stated the setback is for an accessory structure such as a shed; but he has not gotten complaints either.

Mr. Enos stated in the PUD classification it is possible to have a 5-foot setback for the residence, but the requirement is still 7.5 feet for an accessory building.

Commissioner Cook suggested making the setback consistent with the setback for the home, and bringing the ordinance back to the Board. Discussion ensued on how the ordinance was advertised. Mr. Enos explained the advantages of making the setbacks consistent. Commissioner Scarborough requested a legal opinion on the advertisement. Attorney Bentley advised the advertisement is broad enough that if the Board wants to change just the PUD section to be consistent, it is possible. Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to adopt an ordinance amending Chapter 62, "Land Development Regulations", Code of Ordinances of Brevard County, Florida; amending Article VI, Division 4, Subdivision V, specifically subsection (d)(7) within Section 62-1446 concerning accessory building setbacks from the side and rear property lines; providing for conflicting provisions; providing for severability; providing for area encompassed; providing an effective date; and providing for inclusion in the Code of Ordinances of Brevard County, Florida. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING ZONING REGULATIONS IN CHAPTER 62, ARTICLES II, III, AND VI

Chairman Voltz called for the public hearing to consider an ordinance amending zoning regulations in Chapter 62, Articles II, III, and VI.

Commissioner Higgs stated a number of the items that are described as clean-up are substantive changes; and recommended staff break up the ordinance into more manageable pieces. She stated on pages 33 and 35, there are a number of changes for permitted uses under productive agriculture which may impact the Farm Bureau; and outlined some of the changes. Planner George Ritchie stated what is proposed is a rewording of the same structure; and outlined where the revisions were made. Commissioner Higgs inquired about the deletion of farmer supply stores. Mr. Ritchie advised some of the uses were leftovers from previous ordinances that have been removed; and explained how various uses were handled. Commissioner Higgs stated she is not comfortable with the changes.

Commissioner Cook stated none of the changes are supposed to be policy related; and suggested the ordinance be broken up into smaller pieces. He expressed concern about the change relating to barns and dude ranches.

Discussion ensued on request of the agriculture community to provide input and provision for barns and dude ranches.

Mr. Enos advised the advertisement for the ordinance was expensive; the second public hearing is scheduled for December 9, 1997; and suggested breaking up the ordinance, and considering the first part under the advertisement. He stated some changes cannot be argued as anything but clean-up; and if the Board does not have any problem with those changes, they could be considered. Commissioner Higgs stated she has problems with certain changes; she cannot imagine why the Board would want to put the Zoning Official under the direction of the Growth Management Director because it will have to be cleaned up again in another few years; and suggested making the ordinance as generic as possible.

Commissioner Scarborough inquired if there is any problem with breaking it apart, and considering a section on December 9, 1997, rather than doing a series of advertisements. He stated it may be continued over several months as portions are considered. Attorney Bentley stated there are some sections such as revising the titles which could be continued under the same advertisement; however, there are other areas where it would be prudent to re-advertise. Commissioner Scarborough expressed concern about how Comprehensive Plan advertisement is done. He inquired if the advertisement of the ordinance was sufficient for the people to understand; and stated he would prefer to throw $1,200 away in order to have good government. Commissioner Cook stated that would be preferable to misleading the public; the Board needs to consider smaller sections; and there is nothing that is time sensitive. Attorney Bentley stated it is already scheduled for December 9, 1997; and if the Board wants to deal with titles on that day, the ad is clear enough to do that. Chairman Voltz suggested Commissioner Higgs meet with staff to address all her problems. Commissioner Scarborough stated he does not want to do that. Commissioner Higgs advised she already met with staff; she finds there are substantive changes; and she wants to be comfortable that none of the changes are policy issues. Commissioner Cook stated the changes should be in compliance with actions the Board has already taken. Community Development Administrator Peggy Busacca inquired if it would be acceptable to bring back a pared down ordinance along with a list of those things which are simply clean-up, and the Board can choose which it feels comfortable with on December 9, 1997. Commissioner Higgs stated that is fine; and requested sufficient information. Discussion ensued on a format for the information.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to continue the public hearing to consider an ordinance amending Chapter 62, Zoning Regulations, to December 9, 1997; and direct staff to delineate how the ordinance can be segregated into meaningful sections, with those sections which are clearly clean-up items to be considered on December 9, 1997. Motion carried and ordered unanimously.

PUBLIC COMMENT

Bruce Miley advised he purchased two lots which equal 1.25 acres in Cocoa and wants to put a mobile home on the property; the property is zoned for mobile homes; on the far side of the property he wants to put a mobile home for his daughter; and explained his problem in getting a permit to put a garage on the property for storage prior to putting the mobile homes on the property. He outlined the problems in putting a second mobile home on the property, or putting two mobile homes together with two kitchens.

Commissioner Cook agreed regulations should be reduced; and suggested Mr. Miley meet with the Zoning Official to see if there is a simpler solution.

Mr. Miley stated in order to abide by the County laws, he must spend $345 to come before a board to be approved or disapproved; and if he wants to bring in both mobile homes, he would have to pay to have all his furniture moved and stored, and then moved again to the mobile home. He stated if he was allowed to build the garage, he could store his belongings there and work from there until the mobile homes are in.

Chairman Voltz inquired if Mr. Miley is building his own home; with Mr. Miley responding he is having one built, and it will be built, then brought to the site and set up.

Zoning Official Rick Enos explained the reason for the prohibition against building accessory structures prior to the principal structure except in agricultural classifications; and stated the Board can decide if it is something it wants to permit. He stated if there are two legal lots, there is no zoning reason two mobile homes cannot be put there.

Mr. Miley stated he has been told that the previous developer agreed that even though the lots were zoned for mobile homes, a mobile home would never be put there. Mr. Enos advised it may be a deed restriction which is a private contractual matter, and not a County matter. Assistant County Attorney Eden Bentley advised deed restrictions are done to create a particular type of neighborhood or create certain amenities; but they are private, and the County does not enforce them. She advised the deed restriction should show on the deed or title policy. Mr. Miley stated both prior property owners advised the properties are zoned mobile home; now he is being told he cannot put a mobile home there; but the area is surrounded by mobile homes. Attorney Bentley explained the difference between zoning and a deed restriction.

Discussion ensued on deed restrictions, County's inability to deal with deed restrictions, chain of title, and zoning.

Mr. Enos inquired how long Mr. Miley would need the garage before moving the mobile home to the property; with Mr. Miley responding two months. Mr. Enos suggested getting the permits for the mobile home and garage at the same time; and stated there may be ways to help Mr. Miley. Chairman Voltz recommended Mr. Miley work with Mr. Enos.

Mr. Miley stated the problem will remain for others who want to do the same things he wants to do; and the rules should be reviewed.

WARRANT LIST

Upon motion and vote the meeting adjourned at 8:09 p.m.

HELEN VOLTZ, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

ATTEST:
SANDY CRAWFORD, CLERK
( S E A L )