The Board of County Commissioners of Brevard County, Florida, met in special session on October 5, 1995, at 5:01 p.m. in the Government Center Board Room, Building C, 2725 St. Johns Street, Melbourne, Florida. Present were: Chairman Nancy Higgs, Commissioners Truman Scarborough, Mark Cook, and Scott Ellis, County Manager Tom Jenkins, and County Attorney Scott Knox. Absent was: *Commissioner Randy O'Brien.

Chairman Higgs led the assembly in the Pledge of Allegiance.

ANNOUNCEMENT

Chairman Higgs stated Commissioner O'Brien will be a few minutes late; the Board could take the report items now; and it can wait to handle the other issues when Commissioner O'Brien is present.

DISCUSSION, RE: VALKARIA AIRPORT

Chairman Higgs requested the Valkaria Airport item be rescheduled from October 10, 1995 Board meeting.

Motion by Commissioner Cook, seconded by Commissioner Ellis, to not hear the Valkaria Airport item on October 10, 1995; and direct the County Manager to schedule it for October 17, 1995. Motion carried and ordered unanimously.

The meeting recessed at 5:08 p.m. to wait for Commissioner O'Brien. *The meeting reconvened at 5:11 p.m. as Commissioner O'Brien's presence was noted at this time.

REPORT, RE: ABBY MARINA DEVELOPMENT ORDER VIOLATIONS

Assistant County Attorney Eden Bentley stated there was a question of some violations last week concerning the Abby Marina DRI; the staff investigated the site; there are some violations of the Development Order; the developer has been contacted; he has ceased all construction and dredging activities on the site; and he has placed turbidity barriers on the property as one of the problems was erosion control. She noted there are silt screens; allegedly, Department of Environmental Protection (DEP) has been out to the site and okayed the turbidity barriers and the silt screens; the Department has obtained water samples that were at issue; and it is basically stopping everything until a consent agreement can be signed between Brevard County and the developer, and all the violations are straightened out.

Chairman Higgs noted County staff did not move forward with any kind of legal action; with Attorney Bentley responding that is correct and it is moving toward a consent agreement since the developer is willing to comply with all the requests.

Commissioner Cook inquired was the developer in violation of a County Ordinance; with Attorney Bentley responding the developer was in violation of the Development Order.

PUBLIC HEARING, RE: ORDINANCE PROVIDING CATTLE GRAZING IN IU AND IU-1 ZONING CLASSIFICATIONS

Chairman Higgs called for the public hearing to consider ordinance providing cattle grazing in IU and IU-1 zoning classifications.

Assistant Growth Management Director Peggy Busacca stated this ordinance is brought to the Board at the request of an individual who asked if he could be permitted to have cattle grazing in IU and IU-1 zoning classifications based upon criteria which includes a formal site plan, land clearing, and that no permanent agricultural structures be permitted. She advised the Local Planning Agency (LPA) has reviewed this ordinance and provided its recommendations relating to land clearing which is found on Page 2, Section 3, Paragraph B of the ordinance; the LPA has recommended the removal of the restriction of not more than 10 acres of any parcel may be cleared; and the LPA is also requesting that cattle grazing be permitted in Planned Industrial Park (PIP) zoning classifications. She noted the ordinance, as the Board sees it today, has not been advertised to permit PIP; and should it wish to do that, staff would need to re-advertise a different ordinance. She stated there has been some discussion between staff about the need for a site plan as is recommended in Section 3, Paragraph A of the ordinance; the recommendation is currently from staff that no formal site plan is necessary for agricultural; and staff is recommending that be deleted.

Commissioner Cook expressed concern with the PIP; and inquired does this allow anyone in these classifications to put up a fence, put a few cows out, and claim an exemption; with Zoning Official Rick Enos responding yes. Mr. Enos stated that is one of the concerns staff had from a pure tax standpoint; and when it wrote the conditions, it looked at it purely from a land use standpoint. Commissioner Cook stated it seems broad; and there should be some kind of verification that an agricultural activity is taking place there prior to getting the exemption, such as a pre-existing use. Mr. Enos stated the individual would have to show the Property Appraiser that the use is there; and if the ordinance is adopted as written, anyone could put cattle on an industrial parcel and claim an agricultural exemption for that year.

Commissioner Ellis stated an individual cannot just put cows on the property to receive the agricultural exemption; and they have to prove they have an ongoing agricultural business to receive the exemption.

Ms. Busacca advised there are criteria to be considered a bona fide agricultural use; and she can obtain that information from the Property Appraiser's Office and provide it to the Board prior to the next meeting.

Friley Knight, 889 Indian River Drive, Cocoa, stated there is a requirement that there be a bona fide agricultural effort; to prove this, individuals have to set it up; there is an IRS form that has to be filed which reports it as a farm; the person cannot do it on less than 20 acres; and the Property Appraiser has to satisfy himself that it is a bona fide agricultural use.

Charles Moehle, 65 Country Club Road, Cocoa Beach, stated Mr. Knight is correct; he does not believe the individual has to be profitable; and they have to qualify for an agricultural exemption. He noted he is concerned about using the land and being able to use it for a use interim as there is no demand, particularly in his case, where he has over 100 acres in an area that probably cannot be consumed for industrial for at least the next 10 years; and it is a way to look after the land and take care of it, whereas now, there is not any way to do that. He advised Modern, Inc. owns about 105 acres between I-95 and S.R. 405; this is the property he is concerned with and would like to put in a more presentable condition; the solid waste disposal transfer and mulching plants keep them from getting other kinds of uses in there; and they have to hold onto it and make it look better. Mr. Moehle stated there should not be a restriction on the size of the acreage; and if the County is concerned about the agricultural use exemption, he does not think it is a real problem because anyone not in the agricultural business is not going to find it profitable to do it on a very small scale just for that reason. He requested the Board consider this on the PIP; stated maybe PIP in all areas is not appropriate, but in certain areas of the County along I-95, industrial and light and heavy industrial is not allowed by ordinance, and perhaps there could be an allowance for that along I-95. He noted he is sure there is a lot of agricultural use for grazing along I-95; he cannot see anything in the industrial areas and along I-95 where green grass and cows or horses would be a detriment; it would be advantageous to make a better appearance everywhere from I-95 and those thoroughfares that are restricted because PIP may not be appropriate where they are anyway; and inquired why restrict them as opposed to the industrial uses.

Commissioner Cook inquired is there any way to determine from the Property Appraiser what impact this has as far as revenue; with Ms. Busacca responding staff can ask Mr. Ford tomorrow.

Chairman Higgs inquired does anyone know how many acres it takes per cow. Mr. Moehle responded it depends on the kind of grazing available, such as improved, highly improved, or native; and it goes from approximately two acres to 40 acres per cow.

Commissioner O'Brien stated the LPA indicated the County should strike the 10 acres; if a developer owns 600 acres of land and the County goes to the 50% rule instead of 10 acres, the developer could clear cut 300 acres of it immediately for cattle grazing; one year later, he could go back to an industrial situation again; and that is a concern. He noted the County should not include PIP in this as it would conflict with the industrial growth in the areas; and it does not want to see cows in an area like that and then expect growth to take place.

Chairman Higgs stated this is the first public hearing to consider the ordinance; and the Board will be sending these recommendations forward to the second public hearing. There being no further comments or objections heard, motion was made by Commissioner Cook, seconded by Commissioner Ellis, to authorize moving Ordinance providing for cattle grazing in light industrial and heavy industrial zoning classifications to the final public hearing on October 19, 1995, as originally presented. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING PRE-EXISTING USE PROVISIONS OF THE ZONING CODE

Chairman Higgs called for the public hearing to consider ordinance amending pre-existing use provisions of the Zoning Code.

Assistant Growth Management Director Peggy Busacca stated the proposed ordinance does two things relating to pre-existing use; first, it changes the status of pre-existing use from a type of non-conforming use to a permitted use in all zoning classifications, and a substantial expansion of a pre-existing use which currently requires a public hearing, would continue to require a public hearing under the conditional use provisions; and the substantial expansion that is greater than 15% of the floor area of that pre-existing use would require a public hearing as a conditional use. She noted in Section 72 of the ordinance on Page 32, are the criteria for the permitted use with conditions; the substantive language changes include Paragraph 1 (c) on Page 32 which permits structures that are utilized for hotel or motel purposes; those uses were conforming to the County Zoning Regulations and made non-conforming by subsequent amendments to the Zoning Code and the Comprehensive Plan; specifically, there are three small motels in the South Beaches which meet this criteria and are intended to benefit; there is language that has been struck which would have a fee for pre-existing use because this is a permitted use with conditions and no fee is required for that; and the Board has told staff to not accept a fee for those changes as it stands right now. Ms. Busacca stated the other substantive changes are basically recommendations by the LPA; on Page 33 of the ordinance, the LPA has recommended that the use must be abandoned for a period of three years before the pre-existing use designation would no longer apply; the current standard is an abandonment of one year; and on Page 34 of the ordinance, the LPA is recommending that the cap of 15% expansion be eliminated and that the expansion be permitted to go to the extent that is currently regulated by all other County land development regulations. She noted there is a recommendation that the last sentence of Paragraph C at the top of Page 34 be removed; this is saying that this shall not permit expansion which exceed the maximum permitted by the zoning classification and Comprehensive Plan; the reason for that is because the LPA recognized that there was some inherent confusion about the fact that a pre-existing use may not necessarily be consistent with the Comprehensive Plan, for instance, a commercial use in an area designated for residential; so it did not know quite how to make that consistent without removal of this language; and it still would require that it be consistent with all the other land development regulations, including the Zoning Code. Ms. Busacca stated that recommendation would eliminate the need for a Conditional Use Permit (CUP) because it is only for a substantial expansion of greater than 15%; and the LPA change would also require that Paragraphs 6 and 7 be added as part of the permitted use with conditions as no expansion would now be necessary to go through the CUP requirements.

She stated Paragraph 6 includes the LPA recommendation that expansion to abutting properties may be permitted if the property was zoned at the time of the Comprehensive Plan adoption or amendment which made the use eligible for pre-existing use; this is somewhat different in that right now the support facilities only can be made to abutting properties; so this would allow greater than support facilities to go to the abutting properties.

Attorney Dan McDermott, 1970 Michigan Avenue, Cocoa, stated he represents a number of property owners; and presented a position statement to the Board signed by 11 or 12 different owners. He noted they support the ordinance which is presented along with the LPA recommendations; this is a very helpful ordinance to the group of individuals in the South Beaches who have had a hard time of it since the Comprehensive Plan was adopted; and in addition to the recommendations, there are two modifications they would request which would grant them additional relief. He advised on Page 33, the abandonment provision, there is a three-year limit on that; and it would be their strong preference to have any time limits removed on that and to treat these properties just as any other property in the County, essentially allowing the property to be developed even if the property remains dormant or is not used for a period of time. He stated the abandonment provision may cause some confusion in the future and some dispute as to whether or not it really has been abandoned; and that is typically a factual picture and it would be nice to avoid all of that and allow the property owners to use their property as the ordinance allows. Attorney McDermott stated on Page 34, the expansion onto abutting properties, that is limited to property that was owned by the same individual at the time the Comprehensive Plan was either adopted or amended; it would be their request that restriction be removed also; and if abutting property has been acquired since and that property meets all their requirements of the Code, zoning, Comprehensive Plan, and land development regulations, that the individual would be allowed to expand the business onto that property and not just support facilities, but the actual business. He stated it does not seem to him that these requests would encroach on the property owners in the area; it would allow the individuals to use their property to the most extent possible; the property owners are very thankful for the relief the ordinance grants; and the two additional changes would be very helpful to them.

Charles Moehle, 65 Country Club Road, Cocoa Beach, stated he has nothing further to add to what Attorney McDermott said; and he supports the ordinance because it is fair.

Commissioner Cook stated this ordinance gives substantial relief to the property owners on the South Beaches; and it goes a long way to alleviate the problems they have encountered.

There being no objections heard, motion was made by Commissioner Cook, seconded by Commissioner Ellis, to authorize moving Ordinance amending pre-existing use provisions of the Zoning Code to the final public hearing on October 19, 1995, as recommended by the Local Planning Agency. Chairman Higgs stated she has a concern about a couple of the LPA's recommendations; on Page 34, the expansion to abutting properties, when the County embarked on this trail of trying to solve the problem of making these businesses legal within their zoning classifications, she did not anticipate that the County was looking at expansions to abutting properties; and she cannot support that particular part of the LPA's recommendations. She inquired how does the County deal with abandonment of non-conforming properties in other situations, and what does abandonment mean. Assistant County Attorney Eden Bentley responded the Board of Adjustment deals with termination of non-conforming uses on a regular basis; but the language of that Code references if the use is discontinued which is a little easier to deal with; on abandonment, the County might get into some intent questions; and it might want to use the word "discontinued" instead; but there is a great deal of case law involving the use of the word "abandonment" as well. She stated it is seen frequently in ordinances; there are areas where the County could litigate; but "abandonment" is also a standard term. Chairman Higgs noted it is a standard term that would have a definition that could be fairly easily set out in the Code; and the concern about abandonment may not be, with the legal definition, so severe. Attorney Bentley stated she would recommend using the word "discontinued" instead because it removes the intent. Chairman Higgs inquired is that defined fairly clearly; with Attorney Bentley responding there is case law on that as well. Chairman Higgs inquired if she had a pre-existing use property and put it up for sale, does that mean it was discontinued. Attorney Bentley responded there is case law on that as well; that is one of the areas there is litigation over; with abandonment, they will argue that they have not abandoned it and intend to use it; but if the word "discontinued" is used, the use is not there; and whether they intend to use it in the future or not, the County does not want to get into that issue. She stated staff can come up with language between now and the next public hearing to address that particular question; it can address the intent issue more clearly; the County wants an active use on the property that it can say is ongoing or not ongoing; and it has seen that kind of argument here and other counties have seen it as well.

Chairman Higgs stated given the discontinued issue and the three years versus the one, she is willing to support the LPA's recommendation; she wants to get additional information; and she is concerned about the expansion issue on the abutting properties.

Commissioner O'Brien inquired is the County discussing the zero lot line when it refers to expansion to abutting properties; with Commissioner Cook responding no. Commissioner O'Brien inquired when saying they can expand to the abutting property, is that arbitrarily going to zero lot line even though they do not own the abutting properties. Ms. Busacca responding the individuals would have to own the abutting property; this is a question of how long they have owned it; and the LPA is saying if it is abutting the property that the structure is located on.

Commissioner Scarborough stated the County does not want to look at the word "to" but "on" the abutting property.

Chairman Higgs stated the issue of expanding onto the abutting properties causes her concern; the original thing she thought the County was trying to do is to get the businesses legal; she can support that; she can also support them being able to meet land development regulations on the property on which they exist; but she cannot support the language as suggested by the LPA in regard to expansion of the property if it was owned at the time of the Comprehensive Plan adoption and amendments.

Commissioner O'Brien inquired where else in the County would this create a whole new problem; stated it is solving one problem in the South Beaches; and inquired will this also create one. Ms. Busacca responded she is aware of at least two uses that are pre-existing use outside of the South Beaches; one is Taco City; she does not know whether it has abutting property; it has already expanded into the abutting property to put in parking; the second one is Linnea's Landing; and that is on U.S. 1 in south Titusville. She noted Linnea's Landing would have some ability to expand as it has abutting property; it has come forward to the Board before and asked for Mixed Use District (MUD) to have the ability to do that; and that was denied.

Zoning Official Rick Enos stated the County also did Camp Holly which is located on S.R. 192.

Ms. Busacca stated the County has approximately 25 plus pre-existing uses; the majority of these are in the South Beaches; that is more because there is an understanding that pre-existing use is available; and there are probably many other uses which are eligible for pre-existing use. She noted they are not aware that is true; they have not tried to come in and expand or do anything so they have come into the need of pre-existing use; so she is not certain that the County has a good grasp exactly what the number of uses are that are out there that could be eligible for pre-existing use.

Commissioner O?Brien stated he is fearful of setting up a trap for the County by helping someone and then creating havoc some place else.

Chairman Higgs stated the issue of the businesses down there being legalized and able to use their existing property is legitimate and most people can agree with that; what the citizens were concerned with in 1992, when the Board brought forward the Comprehensive Plan changes, were the issues of expansion; and that is where considerable concern will come.

Commissioner O?Brien stated the LPA is saying expansions on abutting properties may be permitted if the property was owned at the time of the Comprehensive Plan adoption which was 1992. Ms. Busacca responded it may have been 1988 when the original Plan was adopted; in the case of many of the South Beaches, that was the time they actually became eligible for pre-existing use; and each property may be different based upon the time in which it became eligible for this.

Commissioner Cook stated he is not concerned about expansions on abutting properties, given the fact individuals would have to own it at the time of the Comprehensive Plan adoption.

Chairman Higgs requested staff provide information to the Board prior to the second public hearing on what the nature of that change would mean. Chairman Higgs passed the gavel to Vice Chairman Ellis.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to amend the original motion to delete Item 6 on expansions to abutting properties.

Commissioner O?Brien stated he may support Commissioner Higgs after the Board receives the information; but he cannot support the amendment at this time. Commissioner Higgs stated that is fair and she appreciates Commissioner O?Brien?s willingness to look at the information when it comes back; the fact that there are very few citizens present tonight is an indication that it is not a burning issue to let the hotels be legalized and use their property; it never was the intent that they not be; there was deep concern about expansion; and at the second hearing, the Board will have additional information and perhaps greater input from the people who live around those properties.

Commissioner Cook stated he cannot support the amendment, but is willing to look at the additional information. Commissioner Scarborough stated when the County removes the 15%, it basically has opened up to any amount of expansion; and in all fairness, why should a person who bought the properties from one person and owned by one deed be allowed to expand, while another person who had to acquire the properties from two separate individuals is penalized.

Commissioner Higgs stated the Board can request staff come back and give it additional information on what the expansion might be; and on those properties the County has not identified that could be pre-existing use, it does not know the consequence of that.

Commissioner Cook stated he is willing to look at the scenarios; and if someone owned the property at the time and it was in compliance with whatever the designation was then, they should have certain vested rights to do that.

Vice Chairman Ellis called for a vote on the amendment to the motion. Motion did not carry; Commissioners Scarborough and Higgs voted aye, Commissioners O?Brien, Cook and Ellis voted nay.

Vice Chairman Ellis passed the gavel to Chairman Higgs.

Commissioner O?Brien inquired if the word ?discontinued? is included; with Commissioner Cook responding he can include it in his original motion. Commissioner Cook inquired if Attorney Bentley prefers to not make the change now and come back later; with Attorney Bentley responding she can come back with more extensive language to address the Board?s concerns.

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

PUBLIC HEARING, RE: ORDINANCE AMENDING PLANNED UNIT DEVELOPMENT PROVISIONS OF THE ZONING CODE

Chairman Higgs called for the public hearing to consider ordinance amending Planned Unit Development provisions of the Zoning Code.

Zoning Official Rick Enos stated this is an ordinance to remove some of the disincentives that are in the PUD regulations; the Board directed staff to review this and try to make it more user friendly; it put together a group of local private practitioners who helped it go through this ordinance section by section; and they made a number of recommendations which have been incorporated into this ordinance. He noted much of what the County is doing in this ordinance is removing the duplication that is in the PUD regulations as it relates to other land development regulations; to summarize, this will add more uses that can be considered under the Preliminary Development Plan (PDP) to provide more flexibility and to mix land uses; the County is also making some changes to the open space requirements in an effort to relate the active open space better to the number of units in the project; and it is eliminating the 14-unit per acre maximum in the PUD so that the PUD would be limited by the Comprehensive Plan. He stated that would allow PUD?s to be more available in the County?s urban areas; staff is proposing changes to the lot size and lot width minimums for single-family residential; right now the minimum lot size is 5,000; the minimum width is 50 feet; and staff is proposing a minimum lot size of 4,000 and a width of 40 feet or proposing amendments to the setbacks. Mr. Enos stated the side setbacks are currently 7 ? feet; staff is proposing changes to the side setbacks so they relate more to the lot width; it is suggesting changes to the front and rear setbacks to allow front and rear porches; and it is suggesting that the initial approval of the PDP which can be two years currently, be extended to three years and that some administrative extension after three years be available. He advised the LPA reviewed this ordinance and made some proposals; three of the four proposals staff agreed with and incorporated them into the ordinance; those proposals are to permit urban residential PUD?s, the same right to propose alternative setbacks, breezeways, and heights that are allowable for commercial PUD?s; and there is a reference that single-family residences are not required to meet the breezeway requirement. He noted staff also deleted the Board option to require common parking for RV?s in subdivisions that have lots of less than 6,600 square feet in a PUD; the other proposal or recommendation that the LPA made is on the open space; currently, open space is 25% of the site; the PUD Review Committee made a recommendation that the active open space provision be a rate of 1.5 acres per 100 residential units, changing the philosophy of the active open space from one of a percentage of the site to one that relates to the number of units; and it also recommended reducing the overall mixture of active and passive open space from 25% of the site down to 10% for single-family projects with lots of less than ? acre and no open space requirement for single-family lots greater than ? acre. Mr. Enos stated when the LPA reviewed this, its recommendation is to say that the 1.5-acre per 100 residential unit active open space requirement be a common open space requirement, so that could be active or passive at the developer?s option; and it also recommended that the general common open space requirement be 25% for multi-family just as the Committee recommended; and the single-family be zero regardless of the lot size; so there is a slight difference there from what the Committee did. He noted staff received two letters; one letter is from Mr. and Mrs. Patterson; right now staff is proposing 10 feet; the Pattersons want eight feet in addition to the 20 feet that they have now; and where staff is proposing 10, the Pattersons would like it to go to

seven feet. He noted the other letter he received is from Merritt Island Redevelopment Agency Executive Director Kurt Easton; his letter states that the Agency reviewed the PUD regulations; and it wishes to endorse the proposal.

County Manager Tom Jenkins stated the planning staff came to him and said it felt the PUD mechanism was a very good planning tool and one that could be utilized to a much greater extent if it was updated and modernized; and what it attempted to do was go back and make those changes it felt were necessary to allow the PUD to get used more frequently than what it has been in the past. He noted some of the provisions and restrictions in it were such that very few people would use it; staff believes there can be greater utilization; and short of a DRI, it is probably the best mechanism to have a well-planned community.

John Patterson, 353 Cypress Point Drive, Melbourne, stated he is very pleased with the proposed setback amendments for PUD?s.

Commissioner Cook stated this was first initiated because of a problem that some homeowners had in Lake Pointe; the ordinance does address their needs; and it also addresses the requirement that every PUD have a golf course. He noted he is concerned about the lot size; and inquired what was the reasoning to decrease lot sizes to 40 feet; with Mr. Enos responding to provide more flexibility in the lot configurations. Mr. Enos stated the initial idea that the Committee had was to eliminate lot requirements entirely; but after re-consideration, it felt from a practical standpoint, that it does not make much sense to go below 40 feet. Commissioner Cook expressed concern about deleting the 50-foot requirement; there should be some minimum standard for lot size if it is a single-family detached home; he does not like high rise apartments either; there was a time in the County where someone could not build on a 50-foot lot; and there were much more stringent standards than a 50-foot lot line in the past. He stated it is a market factor; but there has to be some density control; and 50 feet is not unreasonable.

Motion by Commissioner Cook, seconded by Commissioner O?Brien, to approve 50-foot lot size width and maintain the 5,000 square-foot lots.

Commissioner Ellis stated he does not support the motion as it is a market factor; this is talking about new home developments in a PUD; it is not about someone who owns five acres in the middle of nowhere subdividing his property; there are a lot of controls for PUD; and a developer putting in a PUD and the money and effort into it is not going to build a slum.

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

Chairman Higgs stated she is not comfortable going to 0% of common open space or recreation space in the single-family areas; the committee?s recommendations of 25% for multi-family, 10% for single-family of less than ? acre and the single-family equal to or greater than ? acre going to 0% is too small; and there should be open space in any of these. She noted the reason the County is encouraging people to do PUD?s and to bring in the flexibility in this particular zoning classification is because there are some tradeoffs; the County gives individuals some flexibility, but there are some enhancements in the subdivision; so it has been a process of allowing creativity and flexibility, but also requiring some things. She stated she does not like going to 0% open space; the single-family, regardless of the size of the acres, at 10% is a recommendation she would like to see the County do or even increasing the smaller lots to a greater percentage and going to 10% on those with ? acre; and the County should require some open space. Chairman Higgs stated she agrees that the County should not demand that everyone have a golf course; but it should not eliminate the open space. She noted maximum flexibility in the recreation is a good idea; and she does not believe in eliminating all of those requirements.

Commissioner O?Brien stated he agrees with Chairman Higgs; if the County looked at single-family lots that are less than one-half acre and a substantial development took place with zero green space, it has created more single-family homes packed all together with no green space which is crazy; and that could be devastating to everything involved.

Commissioner Ellis stated he does not understand what the problem is if that is what people want; he lives in a subdivision without green space; what the County is talking about here is leaving this space open; and the overall affect is it is knocking the densities down further.

Commissioner Cook stated he believes there can be nice neighborhoods without requiring additional green space; a ?-acre lot is a pretty large lot; and the lot size is lending itself to being more open space. He noted there is some value to trying to leave as much flexibility as possible in a PUD, while setting certain minimum standards; the 25% and 10% are not unreasonable; maybe leaving it at 0% is a good idea on the larger lots; the County is encouraging the idea of building homes on larger lots of ?-acre or more; and that is good.

Commissioner Scarborough stated the County is discussing a number of things; where it started was the active versus the passive; there is a consensus it is not going to be mandating golf courses; the next question becomes to what extent does it get involved in building quality communities, and at what point do the market place and the County play a role; and when he plays a role, he looks at preserving the adjoining property owners value. He noted if someone has a PUD development, he is less concerned about what he does with it because he trashes his own property; if an individual comes into an expensive neighborhood and puts in something substandard, he trashes his neighbors; and the reason the Board is here is to preserve the value of the neighbor. He stated different people like different types of communities; the question always has to be what is the market place doing; if a person is going to develop a PUD, what the County is saying here is that he develops the PUD and has to put together his marketing plan and community; and he is not as concerned about that as perhaps not letting it become a situation where they are failing to keep up the Brevard County community. Commissioner Ellis stated not everybody wants the larger lots; and some retirees do not want to deal with large lots.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to approve staff?s recommendation of 10% and 0% single-family open space and delete ?active? recreation. Motion carried and ordered; Commissioner Ellis voted nay.

Motion by Commissioner Cook, seconded by Commissioner O?Brien, to change ?commercial? to ?non-residential? and add BU-2 and industrial uses as appropriate to Paragraph (8) on Page 11. Motion carried and ordered unanimously. There being no objections heard, motion was made by Commissioner Cook, seconded by Commissioner Scarborough, to authorize moving forward Ordinance amending PUD provisions of the Zoning Code to the final public hearing on October 19, 1995, as recommended by the Local Planning Agency and amended by the Board. Motion carried and ordered unanimously.

The meeting recessed at 6:40 p.m.

The meeting reconvened at 6:51 p.m.

PUBLIC HEARING, RE: ORDINANCE PROVIDING FOR MAXIMUM LOT COVERAGE AND STORAGE WALLS IN INDUSTRIAL ZONING CLASSIFICATIONS

Chairman Higgs called for the public hearing to consider ordinance providing for maximum lot coverage and storage walls in industrial zoning classifications.

There being no comments or objections heard, motion was made by Commissioner Scarborough, seconded by Commissioner Ellis, to authorize moving forward Ordinance providing for maximum lot coverage and storage walls in industrial zoning classifications to the final public hearing on October 19, 1995 as proposed. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE ESTABLISHING ECONOMIC REASONS AS HARDSHIP FOR VARIANCE IN CERTAIN CIRCUMSTANCES

Chairman Higgs called for the public hearing to consider ordinance establishing economic reasons as a hardship for variance in certain circumstances. Commissioner Scarborough inquired why would the County not want to look at a medical reason for a hardship.

Zoning Official Rick Enos responded it is a legal concept that the reason for a variance is always going to have to do with the property itself and not the people who may be occupying it; the individuals who occupy the house are not always going to occupy it; so the needs of the occupancy are going to change.

Commissioner Scarborough noted the economics would have to go to the property rather than to the person; if the economic reasons are personal to the individual and not to the property, then the County has a problem considering economic; and there will be people who will come forward and give the County economic reasons which are really personal financial reasons and call them economic.

Mr. Enos stated that is one of the reasons why the LPA recommended the way it did; in striking the word ?economic?, it wanted to add the following sentence: ?Economic reasons may be considered only in instances where a land owner cannot yield a reasonable return under the existing land development regulations?; that was language that came out of a memorandum from Lisa Troner when this issue first came up which was several months ago; and County Attorney Scott Knox had reiterated that at the LPA meeting. He noted staff supports the LPA recommendation.

Commissioner Ellis suggested the whole clause be stricken; with Commissioner Scarborough responding he does not believe the Board can do that. Commissioner Ellis inquired is there a legal reason why the clause cannot be stricken.

Assistant County Attorney Eden Bentley responded it is the theory of the Zoning Code that it is supposed to be dealing with property and not people?s individual health problems; the Board could strike it; but if it grants a variance based on a medical reason peculiar to the particular owner, it has a strong chance of that being invalidated or overturned on appeal. She noted the County can take that out of the Code and not be in violation of the law. Commissioner Ellis inquired who is going to invalidate or overturn that on appeal; with Attorney Bentley responding the Circuit Court if the neighbors sue. Commissioner Ellis stated if someone has a problem, be it economic or personal, then they should be able to get the variance; and it is an unnecessary and undue hardship.

Commissioner O?Brien stated he does not think the County can allow a health issue into this; it is centered around economic only; it is about the value of the property; and it stays within the parameters of the property problem itself. He noted if the County starts getting into people?s personal lives, whether they can afford it or not or if they are sick, then it is overextending itself into a whole different realm; and he does not want to get involved in it.

Commissioner Cook stated he has no problem leaving in economic; and he is not sure of the LPA?s clarification. Attorney Bentley stated the way it works now is someone has to establish a hardship that is not self-created and it works out to be a situation where if they cannot use their property, they are entitled to a variance; in other words, if their property is going to be taken as a result of the application of the regulations, they get a variance. She noted she is going back to the language that Attorney Knox is recommending; it is because the language of the Supreme Court cases talks about reasonable use of the property; and that is where that clause came from. She stated she cannot tell the Board that there is a specific definition to go to in the case law to define that; but that is the language of the Supreme Court cases; and it is going to be developing over the years because those Supreme Court cases are fairly new.

Commissioner Cook inquired would ?reasonable use? be better than ?reasonable return?; with Attorney Bentley responding the Board can make that change if it desires. Chairman Higgs suggested ?reasonable use and/or return.?

Charles Moehle, 65 Country Club Road, Cocoa Beach, stated he was at the LPA meeting; he believes the LPA was confused about the issue and passed the item because the County Attorney advised it should approve it; it is not really effective and does not take care of the hardship; and it makes it more complicated for someone who has a hardship. He noted he does not personally have a hardship; he has known people who have gone through this; they find it hard to prove their case; and they just give up and lose. He noted something needs to be done, but he does not know what it is.

Commissioner Cook stated either one of these options is going to make it easier because right now the hardship is not considered under economic.

There being no objections heard, motion was made by Commissioner O'Brien, seconded by Commissioner Scarborough, to authorize moving forward Ordinance establishing economic reasons as hardship for variance in certain circumstances to the final public hearing on October 19, 1995 as recommended by the Local Planning Agency, and amended to include "reasonable return and/or use". Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE PROVIDING FOR SECURITY MOBILE HOMES

Chairman Higgs called for the public hearing to consider ordinance providing for security mobile homes.

There being no comments or objections heard, motion was made by Commissioner Scarborough, seconded by Commissioner Ellis, to authorize moving forward Ordinance providing for security mobile homes to the final public hearing on October 19, 1995 as proposed. Commissioner Cook expressed concern about the permanent security mobile homes; but stated he can address it at the second meeting.

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

PUBLIC HEARING, RE: ORDINANCE AMENDING SELECTED CONDITIONAL USE PERMITS PROVISIONS OF THE ZONING CODE

Chairman Higgs called for the public hearing to consider ordinance amending selected Conditional Use Permits provisions of the Zoning Code.

Zoning Official Rick Enos stated this is the ordinance that amends a number of Conditional Use Permits (CUPs) to permitted uses with conditions; and the difference is that a CUP requires a public hearing, whereas the permitted use with conditions is approved administratively if certain conditions are met. He provided a handout to the Board which he put together at the request of Commissioner Scarborough. He noted part of the package the Board already received has a list of CUPs that staff did not recommend for change; Commissioner Scarborough asked staff to put together a list of the ones it did recommend for amendment; and it will show the difference between the ones that are recommended for amendment and the ones that the LPA felt should stay CUPs and should continue to have public hearings. He stated when the LPA reviewed this ordinance, it made three changes; Section 62-1950 on Page 12 is the CUP for temporary living quarters during construction of a residence; this is where the owner/builder has bought a lot somewhere and wants to build his own house; and while he is building his house, for security purposes he wants to either live in an RV or mobile home that would be there just as long as the project is under construction, but no longer than one year. He noted this must be on at least 1/3rd acre under the current regulation; staff proposed that this does not need to be a CUP since it is a temporary use and could be a permitted use with conditions; the reason for that is because generally when these people are getting their building permits, they want to put the mobile home on the property immediately; and when they find out they have to wait three months, it makes a big impact upon their project. Mr. Enos stated the LPA recommended that the lot between 1/3rd acre and one acre still be a CUP requiring a public hearing, but that only the lots over one acre be permitted with conditions; the smaller lots under one acre tend to be in small lot subdivisions, perhaps bigger homes closer together; and it is more of a neighborhood-type arrangement. He noted the other recommendations were to Section 22-1952; the words ?tourists uses? were changed to ?hotels and motels?; Section 23-1955 would include changing the CUP for a trusts manufacturing plant; and right now it is a conditional use in both industrial and heavy industrial. He stated staff is suggesting that the trusts manufacturing plant should be permitted in IU-1 with conditions since it is the heaviest classification.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to delete runways as a permitted use. Motion carried and ordered unanimously. Motion by Commissioner Scarborough, seconded by Commissioner Cook, to approve Local Planning Agency recommendation on temporary living quarters. Motion carried and ordered unanimously.

Chairman Higgs stated she is concerned about Section 62-1912 in regard to bed and breakfast; the County has not defined the bed and breakfast very thoroughly; it is still a conditional use in single-family zoning and it has to meet these criteria; and in a bed and breakfast, there have to be common kitchen and dining facilities as identified in number 4; but she wonders if meals need to be prepared and served and does there need to be a licensed kitchen. She noted she does not know what needs to go there; she does not know what an occupational license would be and what would be issued in a bed and breakfast; and perhaps there needs to be something in there about the surrounding area on the CUP.

Commissioner O?Brien stated the City of Cape Canaveral ended up going into boarding houses in some parts of the City; unfortunately, it was in multi-family residential areas; it compounded a problem of low income; it created a substantially higher crime rate; and he does not want to make it easier for someone who owns a multi-family unit to now become a boarding house on top of that and load it up with ex-cons who have no place else to go which would subject that entire neighborhood.

Chairman Higgs stated she is concerned about the conditions that the County delineates in the multi-family; and she is also concerned about how the County defines the bed and breakfast. She requested staff provide clear definition or more conditions for bed and breakfast inns.

Chairman Higgs stated there is a strike-through on boarding houses. Mr. Enos stated both bed and breakfast inns and boarding houses are a CUP in multi-family; the County is changing that so that the bed and breakfast inn is a CUP in single-family; then either use, the bed and breakfast or the boarding house, is not a CUP in the multi-family; and it would be permitted with conditions. He noted the bed and breakfast inn would continue to be a conditional use in the single family; and the boarding house is not available in the single family.

Commissioner Cook stated he has no problem moving the ordinance forward and getting some additional information; in multi-family, a boarding house or bed and breakfast would not necessarily be bad; there are old Victorian houses that have been converted in some of the cities that are improving the area by becoming a bed and breakfast; so he does not think it is a detriment. He noted he is happy to look at other criteria; but he does not want to get too restrictive. Mr. Enos stated Condition 1 is a density condition; and the density of the boarding house cannot exceed the multi-family density it is in.

Commissioner Scarborough stated St. Augustine has bed and breakfast establishments; and perhaps staff can touch base with the City to see what it is doing. He noted he shares the concern of when does a bed and breakfast become a boarding house and when does it become a dump; somehow the County has to define what it is talking about; and if it does not have some definitions here, it is going to be walking into some difficult public hearings.

Commissioner Cook stated if the County gets too restrictive, it is going to create a problem; there are people who need boarding houses; and it is better than having them wander the streets.

Chairman Higgs stated staff can come back with some suggestions and clarifications.

There being no objections heard, motion was made by Commissioner Cook, seconded by Commissioner Scarborough, to authorize moving forward Ordinance amending selected CUP provisions of the Zoning Code to the final public hearing on October 19, 1995 as recommended by the Local Planning Agency, and amended. Motion carried and ordered unanimously.

Chairman Higgs stated she would like the Board to look again at the development rights transfer article that is being removed under Section 11, Chapter 62, Article 6, Section 62-1925 which is on Page 5; the County may want to use that; it has not been used; but it is a tool that can be used by people; and she does not see any reason to delete it. Commissioner Ellis stated the Board can look at it at the second hearing. Chairman Higgs stated this would have been deleted in its entirety based on the motion the Board just passed.

Attorney Bentley recommended the Board bring the item up today and move it as amended at the next meeting.

Growth Management Director Peggy Busacca stated this is just advertising to make this change of deleting; should the Board wish not to delete Section 11, it has that option; and it does not have to be readvertised. Attorney Bentley stated the advertisement is okay; and she does not want the Board to get caught up on what it forwarded to the next meeting. Chairman Higgs stated the Board forwarded the ordinance as it is to be deleted; but at the next meeting, it does not have to delete it. She noted she will make that motion at the next meeting.

RESOLUTION, RE: RECOGNIZING DR. ELAINE HUGGINS

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to adopt Resolution recognizing Dr. Elaine Huggins for 15 years of volunteer service and support of libraries in Palm Bay. Motion carried and ordered unanimously. (See page _____for Resolution No. 96-283A.)

DISCUSSION, RE: RESCHEDULE GROWTH IN GOVERNMENT WORKSHOP

Motion by Commissioner Ellis, seconded by Commissioner Scarborough, to direct the County Manager to coordinate with each Commission Office to schedule a Growth in Government Workshop. Motion carried and ordered unanimously.

Upon motion and vote, the meeting adjourned at 7:35 p.m.

ATTEST:

___________________________

SANDY CRAWFORD, CLERK

(S E A L)

_____________________________

NANCY N. HIGGS, CHAIRMAN

BOARD OF COUNTY COMMISSIONERS

BREVARD COUNTY, FLORIDA

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