October 7, 2004

The Board of County Commissioners of Brevard County, Florida, met in regular session on October 7, 2004, at 5:35 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chair Nancy Higgs, Commissioners Truman Scarborough, Ron Pritchard, Susan Carlson, and Jackie Colon, Assistant County Manager Peggy Busacca, and Assistant County Attorney Eden Bentley.

The Invocation was given by Reverend John M. DeMarco, United Methodist Church.

Commissioner Truman Scarborough led the assembly in the Pledge of Allegiance.

REPORT, RE: HURRICANE DAMAGE

Commissioner Pritchard stated people needing to rebuild their structures will not be affected by the impact fee that was recently passed; the exemption says, “the replacement of an existing residential building, including those partially or entirely damaged or destroyed with a new type of unit, shall be exempted from the impact fee”; he had a lot of phone calls inquiring how it would affect people; and it will not affect people as long as it is a replacement.

REPORT, RE: REDUCTION IN PROPERTY TAXES DUE TO HURRICANE DAMAGE

Commissioner Pritchard stated a lot of people who have hurricane damage have said they would like to get a reduction in property taxes; and Property Appraiser Jim Ford has put a letter in the newspaper giving notice to owners of hurricane damaged property advising the current Florida law requires that property valuations used for tax purposes be based upon the status of the property as of January 1. He stated Mr. Ford has proposed legislation to grant some form of relief based upon valuation reductions for damage to property, so hopefully there will be a reduction in property taxes. He stated if there is going to be a reduction in ad valorem taxes, the Board needs to get an estimate of what the impact may be to the budget for the upcoming budget process; there has been a lot of overtime paid to County staff with the hurricanes; and the County Manager has been reviewing the overtime requests as to who has been working overtime and whether they are entitled to it because of their positions. He stated the Sheriff’s Department has also had quite a bit of overtime; Clerk of Courts Scott Ellis and Finance Officer Steve Burdett have requested detailed payroll information from the Sheriff be provided before any supplemental funding is granted for the disaster; and apparently there has been a bit of a problem getting the information needed, so he wanted the Board to be aware that the information is not forthcoming.

REPORT, RE: ADDENDUM TO LEGISLATIVE PACKAGE

Commissioner Pritchard stated whenever cities annex properties, they take the valuable tax-generating property but leave the County with the roads to maintain; and that creates a problem. He stated he would like the County Attorney to prepare an amendment to Chapter 171 as an addendum to the 2005 Legislative Proposals requiring cities and towns to take road maintenance along with adjacent annexation areas; he knows the cities will oppose it and there are a lot more cities than towns; but it is something the Board should initiate and see whether it can be successful.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to direct the County Attorney to prepare an addendum to the Legislative Package requesting legislation to require cities to assume road maintenance of roads adjacent to annexation areas. Motion carried and ordered unanimously.

REPORT, RE: VALKARIA AIRPORT ADVISORY BOARD

Commissioner Pritchard stated he received a note from one of the members of the Valkaria Airport Advisory Board advising that body is not allowed to discuss any matters unless directed to do so by the Board of County Commissioners; he was not aware of that; and apparently it is the policy that has been established. Assistant County Manager Peggy Busacca stated the Board created the Valkaria Airport Advisory Board by Resolution; the Resolution establishes very specific topics that can be discussed; but it also says, “and any others.” She noted this is similar to language that was used on the Port St. John Advisory Board and the North Merritt Island Advisory Board.

Commissioner Pritchard stated the problem is that meetings have been canceled at the last minute for no particular reason; so the members have not had a chance to meet to discuss things. He stated if it is going to move forward on the Airport Layout Plan, the Advisory Board should be involved in formulating the document; and he does not know what the problem may be with scheduling a meeting. He suggested scheduling a meeting, holding the meeting, and if there is a question about changing the Resolution that has empowered it, that needs to be done so the members can discuss business.

ANNOUNCEMENT

Commissioner Colon announced the County/City/School Board summit has been canceled as the School Board has its hands full.

REPORT, RE: AVAILABILITY OF TARPS

Commissioner Colon stated a lot of people in South Brevard still have not been able to find tarps; the Army Corps of Engineers has run out temporarily; but First Baptist Church of Melbourne on Dairy Road still has tarps available.

Chair Higgs stated she had an update on that issue late this afternoon; the Army Corps of Engineers is putting on the tarps, and has materials to install tarps; the Emergency Operations Center received a shipment of tarps; and they have been distributed in the community. She stated Ms. Busacca may be able to get the list for later in the meeting; tarps have been available; and a number of fire stations and other places have them.

APPRECIATION, RE: HURRICANE TURMOIL

Commissioner Colon expressed appreciation to her fellow Commissioners for their concern during the recent turmoil; and stated Chair Higgs did a wonderful job. She expressed appreciation to all the County employees and volunteers; and advised of a power truck from Texas that said, “Hold on Florida, Texas is here.”

Chair Higgs stated the County had quite an experience; a lot of people still have a lot of recovery to do; and there is still a need for volunteers to help in cleaning up neighborhoods, particularly in South Brevard. She stated there is still recovery going on; and it will be a year or more to get back to the place the County was before Hurricanes Charley, Frances, and Jeanne. She stated there is a lot to do in recovering from Hurricane Jeanne; and if people are able to volunteer, they should let people know they are willing, as there is a lot of need in the community. She stated the County got through the storm, but not the recovery; and there is a lot left to do so any help would be appreciated.

RESOLUTION, RE: PROCLAIMING FIRE PREVENTION WEEK

Commissioner Pritchard read aloud a resolution proclaiming the week of October 3 through October 9, 2004 as Fire Prevention Week.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to adopt a Resolution proclaiming the week of October 3 through October 9, 2004 as Fire Prevention Week. Motion carried and ordered unanimously.

Commissioner Pritchard presented the Resolution to Public Safety Director Jack Parker, who accepted it on behalf of all the brave firefighters in the County. Mr. Parker advised all Brevard County fire stations are open to the public for tours this week; and they would be happy to oblige anyone wanting a ride on a fire engine. He advised anyone wishing to do that can call 633-2056 and arrangements will be made.

ITEMS REMOVED FROM ZONING AGENDA

Chair Higgs inquired if there are items to be tabled. Zoning Manager Rick Enos advised three items should be tabled, the first being Item IV.B.10, which was recommended for tabling by the P&Z Board.

Item IV.B.10. (Z0403102) WWG Asphalt Company’s request for CUP for Solid Waste Management Facility (transfer station only) in IU-1 zone on 4.5 acres located on the west side of Industrial Drive, south of Broadway Boulevard, which was recommended by the Planning and Zoning Board to be tabled to the November 8, 2004 P&Z meeting and the December 2, 2004 Board of County Commissioners meeting.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to table Item IV.B.10, to the November 8, 2004 Planning and Zoning meeting and the December 2, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Mr. Enos stated the second item for tabling is Item IV.B.14, which is recommended to be tabled to the November 4, 2004 Board meeting.

Item IV.B.14. (Z0405103) Seasons in the Sun, LLC’s request for amendment to existing BDP in an RVP zone on 38.10 acres and change from RVP with BDP to RU-1-8 with amendment to existing BDP on 790.13 acres, located on the south side of SR 46 and east side of Turpentine Road, which was tabled by the Board of County Commissioners on May 20, 2004, August 5, 2004, and September 2, 2004, postponed to October 19, 2004, and recommended by the P&Z to be tabled to the October 11, 2004 P&Z meeting and the November 4, 2004 Board of County Commissioners meeting.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to table Item IV.B.14 to the October 11, 2004 Planning and Zoning meeting and the November 4, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Mr. Enos stated the next item for tabling is IV.D.1, which is recommended to be tabled to the October 14, 2004 North Merritt Island Dependent Special District Board meeting.

Item IV.D.1. (NMI40901) Michael Gaich, Trustee’s request for Small Scale Plan Amendment 04S.13 to change Future Land Use Map designation from Neighborhood Commercial to Community Commercial and zoning from AU to BU-1 on 8.0 acres located on the west side of North Courtenay Parkway across from Kings Way and south of Church Road, which was recommended to be tabled to the October 14, 2004 North Merritt Island Dependent Special District Board meeting.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to table Item IV.D.1 to the October 14, 2004 North Merritt Island Dependent Special District Board meeting. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: TABLED ITEMS

Chair Higgs called for the public hearing to consider items tabled by the Board at its October 2, 2003, December 4, 2003, May 20, 2004, and August 5, 2004 meetings. She advised of the time limits and procedures to address the Board.

Item IV.A.1. (Z0309107) Richard and Patricia Connolly, Peter Vander Haeghen, and Peter and Kristine Woldanski’s request for Small Scale Plan Amendment 03S.11 to change Future Land Use Map from Residential 12 to Community Commercial; and change RU-1-13 and TU-2-10 to BU-1 on 1.8 acres on the east side of US 1, north of Indian River Drive, which was recommended by the LPA for approval of Community Commercial and by the P&Z Board for approval of the zoning change.

Commissioner Scarborough stated he was briefed by Mr. Enos and subsequently by Mr. Corwin; the item was tabled to do a small area plan; and the small area plan has just been completed. He stated the Board can proceed, but he will have a lot of questions; and it may be prudent to table this item so the Board and the community can see the plan. He stated the reason this was tabled was for the plan.

Chair Higgs requested the applicants come forward. Peter Vander Haeghen and Patricia Connolly came forward. Mr. Vander Haeghen stated they have been working with the Board for a year, and are delighted to hear the study has been completed; there have been some understandable delays; and if the Board desires to table the item to study the plan, that would be fine. He stated they are willing to reconsider the BU-1 they originally applied for; they did not realize there is another professional office classification; and that would benefit those who have been vocal in their opposition to the rezoning. He stated as a compromise position, they would be willing to do that.

Commissioner Scarborough stated he would be more comfortable reviewing the plan; and inquired when could the plan get out to the community and the Commissioners be briefed on it; with Planner Todd Corwin responding the draft plan is complete and under review; and it could go to the Board on October 26 or November 9, 2004. Commissioner Scarborough inquired if it is not ready to be given to people yet; with Mr. Corwin responding it is ready to hand out for review; but the new director has made a couple of changes to it. Commissioner Scarborough inquired when would his office have a copy that he could distribute to people and discuss it; with Mr. Corwin responding staff should complete its review by tomorrow or Monday. Commissioner Scarborough suggested tabling the item to November 4, 2004 and having the applicants come in when he is briefed by Mr. Corwin; with Ms. Connolly responding that would be great. Mr. Vander Haeghen inquired when that would be; with Commissioner Scarborough responding at the end of next week.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to table Item IV.A.1 to the November 4, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item IV.A.2. (Z0407107) Esther Teitelbaum, Trustee’s request for change from AU and BU-1 to EU-2 with BDP on 10.69 acres located on the east side of US 1, south of Canaveral Groves Boulevard, which was recommended for approval by the P&Z Board with binding development plan stipulating no driveway access to US 1.

Clay Henderson, representing Esther Teitelbaum, inquired if there are any citizens who wish to speak to the item; with Chair Higgs responding no. He inquired if the Board has the answer to its question.

Commissioner Scarborough stated he conferred with Mr. Enos, Mr. Corwin, and Mr. Henderson; but he still has a lot of questions on the item. He stated Alan Woolwich has dealt with some wetland and conservation issues; Mr. Corwin is dealing with something that was submitted to the Department of Community Affairs; and it would be easier for everyone if he and Mr. Henderson could visit after things have been put together. He inquired if that would be acceptable; with Mr. Henderson responding that is fine. Mr. Henderson stated staff has been good to work with; Mr. Woolwich walked the site; they had the opportunity to do a jurisdictional determination with the St. Johns River Water Management District, so they know a lot more about this; and they are not in a position to force anything through, but do want to comply with the Comprehensive Plan. He stated their goal was to comply with the Open Space requirements. Commissioner Scarborough provided Mr. Henderson with a copy of a summary of what the Board is looking at.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to tabled Item IV.A.2 to the November 4, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item IV.A.3. (Z0407108) Lawrence and Linda Ross’ request for change from GU to RR-1 on 2.46 acres located on the southeast corner of Cangro Street and Osprey Avenue, which was recommended for approval by the P&Z Board.

Lawrence Ross submitted paperwork; and stated he and his wife bought 2.46 acres in Canaveral Groves on Cangro Street and Osprey Avenue, with the intention of splitting it; he spoke to Mr. Enos of Planning and Zoning to see if it fit the criteria; and Mr. Enos preliminarily agreed it should be able to be done. He advised the first handout is the rezoning worksheet, which shows it could be done and meets the criteria; and the second worksheet is from the Property Appraiser’s website, which states they have been paying taxes on 2.46 acres. He stated it was tabled at the last meeting because there was some question about it and some wrong figures; but the handout shows that he is paying on 2.46 acres. He stated the third handout is a letter from Susan Wellen of Land Acquisition advising all she needs is the adjacent roads for right-of-way, which would still allow them to meet the one-acre requirement if they split the property. He stated the fourth handout shows the surrounding property, most of which are approximately one acre; and he also has a letter with 16 signatures of neighbors who do not oppose the splitting of the property.

Lisa Slifko stated she supports the rezoning, and would love to have the applicants as neighbors.

Commissioner Scarborough stated there was some discussion about a transitional area; and there was some opposition at the last meeting. He stated he felt it needed to be tabled because there was a legal issue dealing with the easements and the minimum lot size; and Mr. Enos advised it does meet the legal requirements and would not create illegal lots. Zoning Official Rick Enos stated that is correct.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to approve Item IV.A.3 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.A.4. (Z0407201) Sherry Ashby, Trustee’s request for Small Scale Plan Amendment 04S.8 to change Future land Use Map designation from Neighborhood Commercial to Community Commercial, and change from RU-2-15 and BU-2 to all BU-2 on .26 acre located on the north side of Lake Drive, north of Peachtree Street, and having frontage on the south side of Fern Street, which was recommended for approval of Community Commercial by LPA and BU-2 by the P&Z Board for approval.

Sherry Ashby stated she is here for rezoning of a piece of property on Lake Drive that goes continuously through to Fern Street; she originally planned to rezone the entire piece of property to become united so it could be used to access the Lake Drive property for the business; but there was opposition by the neighbors so it was tabled at the last meeting. She stated there was a suggestion that they divide the property so there would be enough square footage to get an occupational license because it was short on minimum size for an occupational license; she met with Commissioner Pritchard who suggested extending it out 20 feet to allow them to continue the use of the property as it has been for the last ten years; and it will give them the ability to obtain an occupational license and not impact the property any more than it is.

Chair Higgs inquired if Ms. Ashby is only asking for the north portion; with Ms. Ashby responding for the south 20 feet of the property on Fern Street to be added to the property that faces onto Lake Drive.

Commissioner Pritchard stated he has some pictures he took at the site; and he wanted the Commission to see the neighborhood and realize that the applicant’s request is reasonable. He stated Ms. Ashby has agreed to a 20-foot addition to the size of the property and instead of going with the request for the change in zoning all the way to Fern Street, she only needs a little bit more to give her the amount of property needed to conduct the type of business she would like to have there. He stated it is an appropriate use for the property; Ms. Ashby has made a concession that there will be no access off Fern Street; and Lake Drive is a main road that is fairly well traveled. He stated it is the last remaining property that goes from Lake Drive to Fern Street; and the concession will isolate Fern Street from Ms. Ashby’s use as well as any other use.

Motion by Commissioner Pritchard, to approve increasing the BU-2 by 20 feet with RU-2-15 on the remainder of the parcel and adopt Ordinance amending Article III, Chapter 62, of the Code of Ordinances of Brevard County, entitled “the 1988 Comprehensive Plan”, setting forth the Eighth Small Scale Plan Amendment of 2004, 04S.8, to the Future Lake Use Map of the Comprehensive Plan; Amending Section 62-501 entitled Contents of the Plan; specifically amending Section 62-501, Part XVI (E), entitled The Future Land Use Map Appendix; and provisions which require amendment to maintain internal consistency with these amendments; providing legal status; providing a severability clause; and providing an effective date.

Ms. Ashby stated there is a misconception; when she agreed to have the 20 feet moved back, the property on Fern Street was still available to other development use. She stated it would be a different type of zoning; when she talked to zoning staff, she was advised she could put apartments there; and it would give her enough room to put two duplexes on that side, which would be consistent with the land use.

Chair Higgs inquired if the intent is to leave the RU-2-15 on the rest of the parcel and the 20 feet is going to BU-1; with Ms. Ashby responding yes. Commissioner Pritchard stated the reason for that is the extra 20 feet is needed so there will be enough room to expand the small white building that can be seen in the photos.

Commissioner Colon inquired if this is the same item the Board denied last time; with Commissioner Pritchard responding the Board did not deny it, but wanted to come back with more information. Commissioner Pritchard stated it was Commissioner Scarborough’s suggestion to increase the size of the BU-1 by 20 feet instead of going all the way back to Fern Street. Commissioner Colon inquired if all the people who live behind the shop are okay with the proposal; with Commissioner Pritchard responding there was only one person who objected; and his property is shown in the picture with several vehicles parked there and a couple of pit bulls tied up. Commissioner Colon stated she thought there was more than one person who came to the prior meeting; and inquired if those folks are okay with the proposal; with Commissioner Pritchard responding he has not heard anything negative from them. Chair Higgs noted they are not present tonight. Commissioner Colon inquired if those people are aware that this is taking place; with Commissioner Pritchard responding they were present last time. Commissioner Colon stated that was her concern; with Commissioner Pritchard advising what the Board has before it is a reasonable compromise.

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

Item IV.A.5. (Z0407401) Fred Boozer’s request for change from EU to RU-2-6 on 6 acres located on the east side of US 1, north of Ruby Street, which was recommended for denial by the P&Z Board and Item IV.A.6. (Z0407403) Fred D Boozer, Jr., Trustee’s request for change from RU-1-7 and BU-1 with existing Binding Development Plan to RU-2-6 and removal of Binding Development Plan on 3.38 acres located on the east side of US 1, north of Ruby Street, which was recommended for approval by the P&Z Board.

Rochelle Lawandales, Lawandales Planning Affiliates, representing Fred Boozer, stated they had discussions with Commissioner Carlson, and there is a desire to create a small area plan for the area in question where Mr. Boozer has his property on the east side of US 1, south of Viera Boulevard. She stated planning is a great thing; they understand the desire to look at the whole area; and they want to work with the Board and staff to come up with a reasonable way for the land to be used so that it is mutually beneficial for the owners of the land, the environment, and the community. Ms. Lawandales stated Mr. Boozer relied on the Codes in place at the time the application was made; the Comprehensive Plan dedicates this land to 15 units per acre; and the projects Mr. Boozer is proposing are 15 units on the three-acre parcel and on the six-acre parcel, six units to the acre, which is a reduction of 54 units on the six-acre parcel and 30 units on the three-acre parcel. She stated Mr. Boozer has shifted the buildings on the plan to save over two acres of wetlands and leave a larger buffer between his property and the river and his neighbors; and he can put parking on the ground floor so there is no habitable areas on the first floor, which is something the State of South Carolina required to be done after Hurricane Hugo went through Charleston. She stated the schools have capacity in this area; the road has capacity; and no one has objected to the requests. She advised new building codes have been adopted since Hurricane Andrew; and it seems that those buildings built in recent years since the new building code was established stood up fairly well under the recent terrible circumstances. She stated developers really only want to know what the rules are and that they will be treated fairly if they play by those rules; and that is what the applicant, as well as others within the area, are hoping the Board will consider. She stated they are willing to meet any conditions the County feels would be beneficial to protect life, limb, and the land; and while they understand the desire to table and appreciate the opportunity that would afford by keeping this alive, she is asking for some consideration to approve the item subject to those conditions.

Commissioner Carlson stated the plans submitted by Mr. Boozer are high-quality plans; but her concern is they were submitted prior to the hurricanes. She stated in the aftermath of the hurricanes, they have seen the area in question, which is basically from Barnes Boulevard on the river side all the way to the Pineda, was inundated with water, especially Rockledge Drive; prior to the hurricane several rezoning issues came through to increase density and improve the site; and expressed concern about the coastal high hazard area and increasing densities. She stated she would like to make sure as they move forward and develop this area, that it is done with the best interest of the community involved; and she would like to have a small area plan for this particular region to consider issues of compatibility, the coastal high hazard concerns, and concurrency issues. She stated a small area plan will provide the Board with a better decision-making tool for future rezoning efforts; she is not saying some things on the agenda tonight are not good; but things such as Ms. Lawandales mentioned about South Carolina need to be assessed because the Board does not want what happened to Rockledge Drive to happen to the whole region. She noted she is not saying that it will happen, because they do not know that; but they need a better assessment of the area before she will feel comfortable going through with additional rezonings. She stated this affects the two rezonings the Board has today, which are Items IV.A.5 and IV.A.6; and the only exception she would make is another item on the agenda that is an infill item and meets the definition in the Comprehensive Plan for infill development. Commissioner Carlson suggested having the small area plan look at all
commercial and residential tracts in the corridor, with the exclusion of any infill that meets the definition in the Comprehensive Plan. She stated she does not believe there are many parcels that would meet that; there is one parcel by Stephens Furniture; and inquired if she is correct in that assessment. Zoning Manager Rick Enos responded there may be a few others, but he does not think there are many left. Commissioner Carlson stated the corridor is not developed commercially very much; and commented on the one infill project, which she does not think is necessary to include in the small area plan. She stated she is more concerned about residential property and the impact to residences versus commercial; but the Board has to consider the whole picture.

Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to direct staff to prepare a Small Area Plan for the area.

Commissioner Scarborough stated he found the same problem; it is a risk because on the lagoon is some of the most valuable residential property; but just a little way in, there is tremendously valuable commercial property on US 1; and inquired how does the Board maximize people’s property without adversely impacting somebody else’s property. He stated it will take a bit more planning.

Commissioner Carlson stated she does not think it necessarily goes against the things that have been provided as far as the plans and rezonings because some of the things are good; and there are some things she has seen that have not come to the Board yet improved what is there commercially, put it into a more residential nature, and reduced density. She stated that is good; but overall, she wants to have a long-term big picture to be sure the Board is not putting anybody at risk.

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

Chair Higgs inquired if there is a motion to table the items. Commissioner Carlson inquired how long would staff need; with Planner Todd Corwin responding it would take approximately a month to go through the advertising and public hearing process, so it would be approximately five months. Assistant County Manager Peggy Busacca advised no meetings are scheduled past December 2004. Mr. Corwin stated the plan would take approximately four months; and it would come to the Board so the Board and the public could study it prior to the rezoning. Commissioner Carlson inquired if it would be done by January; with Mr. Corwin responding yes. Assistant County Attorney Eden Bentley advised it must be tabled to a time certain. Chair Higgs suggested tabling to December 2, 2004 and then if it is not ready, it can be tabled again.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to table Items IV.A.5 and IV.A.6 to the December 2, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Chair Higgs stated it is important to look at the coastal zone issue extensively as there were lots of things happening next to US 1 in terms of erosion, flooding, and destruction on both sides.

Item IV.A.7. (NMI40705) Anthony La Court’s request for CUP for Alcoholic Beverages for On-premises Consumption in PIP on 594 acres located on the southwest corner of North Courtenay Parkway and Duval Street, which was recommended for denial by the North Merritt Island Dependent Special District Board.

Commissioner Pritchard stated allegations have been made, and he wants to set the story straight; he has no vested interest in the establishment; and his only interest is in seeing that information is presented accurately and fairly and that emotion is taken out and reasoning installed. He stated he has been accused of doing whatever without regard for what is right and wrong based on a set of principles he does not seem to have; one person alleges he is not stupid, but his actions are idiotic and illogical; and another says he is on the dark side with little or no scruples and blood is on his hands. He stated he appreciates the concern and listens to all sides before trying to make an informed vote; and his principles do not include hysteria, junk science, or misinformation. He stated “what ifs” should not be the focus of a decision, but always the consideration; and inquired if someone got into a car wreck today, should they not drive any more or own a car. He stated he has no club or organization; his special interests have always been the people he represents and common sense; and it is not a desire to promote ego or political agenda. He stated he does not ignore responsible input; however, emotion, rhetoric, and feel good responses are not part of his commentary; and there has been a lot of misinformation. He stated people have been slandered; people have written a variety of emails; and commented on one lady in support of the establishment who is an elder in the Presbyterian Church. He stated others have an issue with the conditional use permit for alcohol; it is sometimes difficult to follow the line of thought they put into that without dealing with the emotional aspect; and it has always been the facts behind the issue that he has tried to secure. He stated he had a meeting at his office with several of the parties involved; and questions were raised and comments made. He stated the applicants, the Grangers, have tried to alleviate some of the fears that the neighborhood has expressed; one is the school bus that is on the corner of Duval Street and Courtenay Parkway; it is there in the morning before the establishment is open; but thinking about the other businesses that will be open, there is reason for concern because that is not the best place to have a bus stop. He stated he has spoken to the School Board about relocating the bus stop a little further south; one young lady said at the last meeting she walks all the way down Duval to Courtenay and down to Grant to catch her bus; and that is not something that can be changed because that is the stop for Edgewood, which is a school of choice. He stated the whole point was to get the parties together so they would listen to what is being proposed and not stereotype people who enjoy playing pool, billiards, or snooker. He stated that was his intent; and they will find out tonight whether it worked.

Rochelle Lawandales, Lawandales Planning Affiliates, submitted a smaller version of the materials submitted at the last meeting; and thanked Commissioner Pritchard for his efforts to bring all parties together and the other Commissioners for taking the time to hear all the issues and meet with the clients. She apologized for being unable to meet with some Commissioners regarding the item. She stated this is a request for a conditional use permit to allow alcoholic beverages in what is proposed to be a billiards house and sports bar; they meet the zoning; this is an industrial area with industrial uses all along North Courtenay Parkway; and the County felt it was appropriate to design the Future Land Use Map and Zoning Map to allow for planned industrial parks next to residential areas. She stated PIP is designed so that businesses within the areas will, if they follow the rules, be compatible with the adjacent residential areas; so if industrial uses can coexist with residences, so can commercial uses of restaurants and sports bars. She stated they meet the test for the CUP; there is no noise; and Bob Scales will testify momentarily about the methods of construction for the structure, which will be soundproofed and have other attenuation devices. She stated there are no traffic issues; it is at an intersection that can handle any types of traffic that are proposed with other uses within the shopping center and along Courtenay Parkway that will generate more traffic; it is right in and right out; and the access on Duval is to be blocked so no one can go into anybody’s neighborhood. She stated the issue of trash has also been addressed; and advised of the gated enclosed area where all trash will be brought each night by the owners and employees. She stated trash will be separated for recycling and put into the gated area at night; no trash will be taken to the dumpsters so there will be no banging of bottles or breaking of glass; and they will stipulate that in the binding development plan. She stated the hours of operation are proposed to be the same as any other restaurant or bar, such as Mr. Ni’s, Kings Duck Inn, or Shuttles; and the Grangers want the same fair opportunity as any of the other places. She stated in terms of buffers, there are over 400 feet between the building and the nearest house; and there are wetlands, trees, ditches, and backyards that separate the structure from any residential area. She stated there are homes that are closer to other PIP locations than any of the homes are to this particular location; there are many examples in the County where restaurants and bars on commercial roadways abut residential areas such as on Courtenay Parkway, US 192, and Barton Boulevard; and consequently they are compatible. She stated it is her opinion this is consistent and compatible with the County’s regulations, Comprehensive Plan, and with the surrounding area. She stated they understand the concern that has been expressed that the Grangers may sell the property and it would go downhill; and they will stipulate to a condition in the binding development plan. She stated at this time the Grangers and Bob Scales will speak; and she will reserve time at the end for rebuttal.

Bob Scales, Scales Company, advised they are the general contractors who participated in design of the facility; and there are a few items he would like to point out that were largely driven by the Granger’s pursuit to insure the facility was complementary to the area. He stated the facility, inclusive of the billiards establishment, forced them to install a northbound deceleration lane; right now someone making a left turn into the neighborhood behind the property has to slow down in the fast lane of a 55 mph road to make the turn; and he personally passes the property and makes a U-turn. He stated they will be putting in a deceleration lane that is capable of stacking over ten cars for northbound traffic; and the southbound traffic, headed toward the Barge Canal, will also have a deceleration lane so traffic will get off the road. He advised there is a large conservation area at the back of the property; and they have designed the property so there are no buildings that abut the residential area. Mr. Scales stated they have pushed the buffers and easement area to the back; and the Grangers have spent an exorbitant amount of time and money insuring the building exceeds the standards that they would normally have to build. He stated they have added improvements to the exterior; and they increased the amount of insulation in the building to insure the building is soundproof. He stated in their experience in Brevard County, they have had the opportunity to work with a lot of different people; and the Grangers have expended more effort and attention to detail in assuring the establishment will be a quality structure. He stated they put in state-of-the-art safety systems; the parking for the facility exceeds the County’s minimum standards; and reiterated the Granger’s attention to detail and their neighbors. He stated he is proud to be working on this project; and everyone will be happy with it when it is open.

Linda Granger stated by now each of the Commissioners knows about their planned business, the amenities, and the benefits to County residents and other businesses that their business will bring. She stated they have heard about the growth of the game of billiards and the caliber of the people who enjoy the game. She stated people from all age groups and professions participate in the sport; billiards will be an Olympic venue; and the old stereotype depicted in the movies is dead and gone. She stated the Board has received communications from players who support the establishment as well as others who enjoy watching the players; it has been exposed to a number of negative comments concerning pool players, calling them the criminal element; it has heard about ladies in the pool hall and leading drunks around with a bottle like a carrot, which is totally ludicrous; and she has been personally insulted and falsely accused. She stated during this span of events, it has been difficult to not react with emotion. She stated they appreciated Commissioner Pritchard coordinating a meeting with the Sunset Groves homeowners; despite several attempts, they were unsuccessful in getting adjacent neighbors to meet with them; and in spite of their best efforts, there was no compromising to be done on the part of the homeowners. She stated there is going to be a lot of emotionalism thrown at the Board tonight along with a few red herrings; and requested the Board consider the facts. She stated she and her husband are opening a fine safe establishment; it will be the first of its kind in the County; and it will provide jobs and revenue to the tax base. She stated they have gone above and beyond to provide a solid business plan to insure the safety of the visiting guests as well as the businesses and communities to whom they will be neighbors; they meet or exceed the Ordinances set forth for a conditional use permit; they are located on PIP property on an industrial corridor; and they are bringing a respectable business to the County for the betterment of the community. She requested the Board consider only facts in making its decision, and support them with approval of the CUP so they can get their business up and running. She requested supporters of Diamond Zone Billiards to stand; and approximately 30 supporters stood.

Chair Higgs advised approximately 40 cards have been submitted; and requested speakers not repeat what others have already said and make their comments relevant to the issue before the Board.

Mary Hillberg, representing North Merritt Island Homeowners Association, stated they support the community of Sunset Groves in its request to deny the CUP request.

David Ricouard advised the president of the homeowners association could not be present; a card was submitted on his behalf; and requested the person who is going to play a videotape go first. Chair Higgs advised she is going through the cards in the order she received them. Mr. Ricouard stated he lives on Biscayne Drive and is a board member of the Sunset Groves Homeowners Association. He stated he is going to read a few zoning regulations to express his rights as a property owner and the rights of his friends and neighbors; and the initial burden is on the applicant, Mr. La Court, to demonstrate that all applicable standards and criteria are met. He read aloud “the proposed conditional use will not result in a substantial and adverse impact on adjacent and nearby properties”; and stated it lists several items including noise. He read aloud, “the proposed use will be compatible with the character of adjacent and nearby properties with regard to use, function, operation, hours of operations, type and amount of traffic generated”; stated the Diamond Zone announced it plans on opening at 1:00 p.m. and closing at 2:00 a.m.; the last time they appeared before the Board the noise issue was considered a non-issue; and inquired if the Commissioners have ever heard a Harley Davidson with super mags or megaphone pipes crank up. He advised the applicant cannot erect a wall large enough to keep that noise from waking up the whole neighborhood at 2:00 a.m. He read aloud, “the proposed use will not cause a substantial decrease in value of the adjoining residential property”; and inquired if the CUP is approved, who carries the burden of proof to the residents of Sunset Groves that their property will not decrease in value. He read aloud, “ingress and egress to the property and proposed structures therein, with particular reference to automotive and pedestrian safety and convenience, shall be adequate to serve the proposed use without burdening the adjacent and nearby uses”; and stated pedestrian safety applies not only to the children getting on the bus early in the morning but also to children getting off the bus at 3:00 or 4:00 p.m., which allows for two or three hours of partaking of alcoholic beverages. He read aloud, “the noise, glare, odor, particulates, smoke, fumes, or other emissions from the conditional use shall not substantially interfere with use or enjoyment of the adjacent and nearby property”; and stated it is interesting that noise is addressed over and over in the Zoning Regulations. He stated he is not convinced that the noise issue has been resolved in the manner the Zoning Regulations intended. He read aloud, “hours of operation of the proposed use shall be consistent with the use and enjoyment of the properties of the surrounding residential community”; and stated Sunset Groves shuts down long before 2:00 a.m. He stated the Planning and Zoning mission statement is, “to serve the public by providing quality planning and zoning services in a professional, efficient, and accountable manner. To accomplish the above mission, the staff members of the Planning and Zoning office dedicate each working day to the following goals”; and the first goal is, “Consider the health, safety, and welfare of the community in every task we undertake.” He requested the Board listen to the voices of the family of Sunset Groves because of its close proximity to the property; stated they are the ones who will be directly affected; and because Mr. La Court has not demonstrated that he has satisfied the burdens as listed, and based on obvious incompatibility, he requests the Board deny the request.

Commissioner Pritchard inquired have all the standards that Mr. Ricouard brought up been met; with Mr. Enos responding all of the measurable standards have been met. Mr. Enos advised the objective standards such as the 300-foot minimum to church or school has been met; but there are several more subjective standards in the Code, which speak to compatibility, noise, hours of operation, and those types of issues. He stated the Board is here to determine if there is evidence presented tonight, one way or another, to indicate it does or does not meet the conditions of the general standards of review for all conditional use permits.

David Campbell stated he has one of the closest homes to the property; he can see the building from his backyard; and he has seven children, five of whom are girls. He stated the thought of raising his children behind a bar is unthinkable to him; he would have never come to the community with that knowledge; and he thought about selling his home, but does not know who would buy a six-bedroom home other than someone with a large family like his. He stated he does not want to move, but does not want to raise his children behind a bar; he lives in a nice community; people can drive by and not even know it is there; there are 45 homes in the community; and going from his house all the way around is one mile. He stated it is a substantial neighborhood; he works right across the street to the north where he has a cabinet business; and right next to him is a new gymnasium, Space Coast Gymnastics, where fifty to a hundred children go every night. He stated putting an alcohol permit in the middle of a community of families, children, and churches is poor zoning; this would become a hub of nighttime activity; and he is not concerned about what goes on inside the building but what goes on outside the building, which really has nothing to do with billiards. He stated this is a zoning change; it is allowing a permanent change in the community that allows alcohol; and he is concerned about the nightlife, the cruising, guys looking for girls, girls looking for guys, and people being irresponsible when they are drunk. He stated he wishes the Board could see this issue from his perspective or from his backyard; it is not the billiards issue but the permit that concerns him because once it is granted, it is permanent; businesses can change; and granting the CUP would seriously devalue their homes. He stated he is sorry that vindictive things have been said; he wishes that had not happened and that they had been more professional than that; but it is a serious issue; and he felt for the sake of his family, he had to say something.

Bill Hillberg stated he lives in Sunset Lakes; and as a member of the North Merritt Island Homeowners Association as well as being in the neighborhood directly to the north of Sunset Groves, he is here to echo the concerns about the business. He stated the majority of the homeowners are against the business; and while he personally has nothing against the business, if a complete neighborhood is that much against it, he needs to support their feelings. He stated they should have a voice in the decision.

Rosalie Phillips stated she is a board member of the Sunset Groves Homeowners Association; the president, Everett Stevens could not make it here tonight; but it was very important to get his message across so he made a five-minute videotape; and it is ready for the Board to listen to.

Commissioner Pritchard stated the Board cannot do the video. The video started playing. Commissioner Pritchard advised the policy says that the person on the video must be present when the tape is shown; and read Policy 9.3, “Person presenting videotape shown on speaker’s card must be present when tape is shown.” Chair Higgs requested the tape be stopped. Commissioner Pritchard advised it is County policy; read aloud Policy 9.3; and stated if the Board allows this, everyone will be producing three and five-minute videotapes and the Board will be watching videotapes. Commissioner Carlson stated that will be instead of people coming
to the meeting. Commissioner Pritchard stated the Board cannot question the person on the videotape or do anything but observe; and requested Ms. Phillips summarize any comments Mr. Stevens made. Ms. Phillips stated she has no idea what the video says; Mr. Stevens had to leave on the first of October; and he told her that he called, made arrangements, and was told it was fine. She noted Mr. Stevens talked to Danielle; he brought the tape down himself; he is the president of the Homeowners Association; and he felt it was very important that he speak. She stated she was misinformed.

Chair Higgs inquired if Attorney Bentley has the policy; with Attorney Bentley advising it is as Commissioner Pritchard read, and they are the Board’s internal rules of procedure. Chair Higgs stated she is sorry that Ms. Phillips got the wrong information; but unless there is a motion to waive the rules, they will proceed.

Steve Phillips stated he is a resident of Biscayne Drive and also vice president of the Homeowners Association; and thanked the Board for listening to their requests and the Grangers for presenting to their group. He stated he and the president went to Commissioner Pritchard’s office to listen to the presentation and took it back to the community, in addition to distributing minutes from Commissioner Pritchard’s office to every homeowner within the development. He stated he and his wife are homeowners in Sunset Groves; and they are not in favor of the conditional use permit for alcoholic beverages for on-premises consumption within 500 feet of their residence. He stated several of their homes can be seen from SR 3; they are proud of their neighborhood; and the neighbors range from retirees to young adults. He stated their homes range from $200,000 to $400,000; but the common goal they share is to maintain the quality of the neighborhood so it is a safe place to raise children. He stated today their neighborhood streets are safe and convenient for their residents to enjoy; and it would be a shame to tell their children they could no longer enjoy the safe environment they have come to know because of the potential for impaired drivers within close proximity to the neighborhood. He stated the only means of ingress and egress to their properties is by Duval Street off SR 3, which is already a congested area; at the southwest corner of SR 3 and Duval Street, the children of the neighborhood depart and arrive via the County school buses; and with the increased traffic, they are concerned about impaired or intoxicated vehicle operators and the increased traffic flow to the primary artery to their neighborhood. He stated they are also concerned that approval of the CUP will pave the way for other businesses that will also rely heavily on liquor sales for success. He stated they are not disputing the fact that the Grangers are upstanding citizens and their establishment will be very plush; but there is always the risk that Diamond Zone Billiards may be succeeded by a follow-on business that could result in substantial adverse impact to the neighborhood. He stated he and his wife and the residents of Sunset Groves request the Board come to the same conclusion and deny the request for the CUP.

Kevin Zari stated he lives on Biscayne Drive and also owns another lot on Biscayne Drive; and those are the two lots that are directly behind the area in question. He stated he hates that people have been accusing Commissioner Pritchard of things; but this is not about him or the Grangers; it is not about the Grangers attention to detail; and it is about the La Court’s request for a six-acre parcel to be given a conditional use. He stated he is not present to discuss billiards, although he likes billiards and watching billiards on ESPN; but is he here to focus on the fact that they are requesting the conditional use permit for the entire six-acre parcel of land. Mr. Zari requested people focus on that fact and not attack people based on their riding motorcycles or playing billiards; and stated they are here to discuss alcohol and its consumption on the premises of a six-acre lot that is directly behind his two parcels of land. He requested those who stood up in support to stand again; with Chair Higgs responding they stood up once. Mr. Zari stated he would like to ask those who were standing to sit down if they did not live within 500 feet of the area; and apologized for the diversion. He stated he is all for the rights of property owners; but his rights should be equally important. He stated this is not consistent with the local community; he was not contacted by the Grangers; and he has the two lots that are closest. He noted his answering machine was on as much as the hurricanes allowed; but he has not yet been contacted. He stated he is concerned about the sale of alcohol on the lot; driving and traffic patterns have been addressed; but he does not know if traffic patterns for alcoholic drivers who might be going the wrong way up SR 3 were addressed. He stated there are a bunch of what ifs; but regardless of them getting a deceleration lane, the issue is they are dead set against the conditional use on an entire six-acre parcel directly in their backyards.

Commissioner Pritchard thanked Mr. Zari for his kind words. He stated there is also a proposition to have an Italian restaurant in the same Planned Industrial Park that would serve beer and wine; and inquired if Mr. Zari is opposed to that. Mr. Zari responded he is opposed to any conditional use permit granted to the six-acre lot directly in his backyard.

Barbara Benn stated she is an 11-year resident of North Merritt Island and lives in Sunset Lakes; Sunset Groves is approximately a half-mile from her home; and she passes that location on a daily basis. She stated growth is inevitable; she already sent a letter explaining her involvement in this matter; and she feels there has been and continues to be a grave injustice to Mr. and Mrs. Granger and others involved in Diamond Zone Sports Center and the entire shopping area now under construction. She stated the Grangers entered into the plan with good faith based on obtaining proper permitting and going through the agonies of decision making and financial commitments involved in such an innovative approach to the game of billiards; they considered every imaginable aspect of the operation as to be a pleasing addition to the area and to their associates who will be using the facility; but they were denied the opportunity to present the plans to the community of North Merritt Island through the North Merritt Island Homeowners Association. She stated they were also denied the opportunity to speak directly to the residents of Sunset Grove, but were able to talk to two representatives of the Homeowners Association thanks solely to the facilitation of Commissioner Pritchard, who remained objective throughout; and everyone appreciated the chance to meet and talk about the project, as well as hearing the objections. She stated it helped with her decision; but she did not stop there, and met with Mrs. Granger and walked the site, watched the tape from the last meeting, read the minutes from the Special North Merritt Island Advisory Board, and contacted those Biscayne Drive residents she was able to reach. She stated most, if not all, of the seven members of the Special North Merritt Island Advisory Board are also members of the North Merritt Island Homeowners Association; she is a former North Merritt Island Homeowners Association board member, and has seen them and others who seem to be against anything new coming to North Merritt Island; and they are against growth so it is no surprise they are against the project. She stated it is a disservice to the community; and that is what bothers her the most. Ms. Benn stated a letter from Mr. Ricouard was also posted on the Sunset Lakes website; it contained clear erroneous information; and she believes Mrs. Hillberg aided in this action. She stated there is no evidence of children being accosted or run over at other places of business simply because those businesses serve alcohol. She stated she spoke with the School Board and some bus drivers, and obtained statistics on this matter; there are only two to four Merritt Island High School students for the Duval Street location; Edgewood Junior/Senior School of Choice has its stop at Grant Road and the Ark Church, which is around the corner; and the stops at Seagate and Grant and Grant and Nina are quite a bit south and around the corner from the subject business so they are really not a factor. She stated there are four or five Lewis Carroll Elementary students who only use the Duval and Courtenay location; many times the younger students are driven to the stop by their parents who sit in their cars until the bus leaves; and the same is done on pickup. She stated looking out for ones own children, if they are too young to be on their own, is the responsible thing to do; and it is what her neighbors in Sunset Lakes do. She stated it is a total insult to the decent people involved in the sport of billiards to be referred to in the way she witnessed by the residents of Sunset Groves and other objectors; she has never come into contact with anyone who was more highly regarded as to their character, integrity, and professionalism than the Grangers; and she is glad to have made their acquaintance. She stated the hard part is debunking and exposing the poor character traits of the very residents who have made the most vociferous objections.

Chair Higgs advised Ms. Benn’s time has expired; with Ms. Benn responding she will have someone finish her comments for her as they are important.

Elizabeth Bachtel stated Everett Stevens, the current Homeowners Association president of Sunset Groves, representing the neighbors in the battle for rights, sat next to her at a meeting at Commissioner Pritchard’s office; and he stated he feared that drivers would drink, leave, and be disoriented, and maybe turn into his neighborhood and run into his three-year old or cause some other damage. She stated the reason he thought that is because that is what he does when he has been out drinking; he takes the back roads hoping no police will catch him; and she is sorry Mr. Stevens is not here to defend himself, but she has other witnesses to his statements so there is no dispute. She stated she also learned that a number of people who are against this have speeding tickets.

Chair Higgs advised the Board is going to take a break.

The meeting recessed at 7:08 p.m. and reconvened at 7:17 p.m.

Chair Higgs stated in the political process, public officials have almost no protection from comments that may be made about them; so the Commissioners expect to hear things that may not be as flattering as they would like; however, people who are participating in the process may have protections. She requested speakers govern their words with that in mind; stated each speaker has an opportunity to speak tonight; she will go through the cards and allow that; but requested speakers to thoughtfully consider their remarks.

Commissioner Scarborough stated in dealing with CUP’s there has to be some demonstration that is the burden of the applicant; where the Board is being directed is to the compatibility with the character of adjacent and nearby properties with regard to use, function, operation hours, and those types of issues; and at issue is not the character of any of the people. He stated the most horrendous individual could make the request, and if he met the burden, he would be entitled to it; likewise, someone could challenge it who is a liar and a thief, but if the facts are one way or the other that is the issue. He stated individuals have the right to speak; but at the end of the day, the Board has to go back to those particular issues; and it is not whether the Board likes or does not like billiards or individuals. He stated the risk is at the end of the day, the Board will have no information; the burden is on the applicant; and if the applicant fails to meet the requirements, he will have no option but to vote against the request. He stated there appears to be a deviation from what is required of the applicant in putting forth a case; and if nothing further was presented, he would have to vote for denial because of that failure, so the speakers can take that into consideration as they proceed.

Chair Higgs stated what the Board needs is evidence in regard to the CUP; and requested the speakers govern their remarks in the light of the standards of civility.

Ms. Bachtel declined to speak further.

Joann McClain declined to speak.

Bob Willcox stated he lives on Biscayne Drive; and apologized to Commissioner Pritchard for any incidents or personal attacks he received. He stated that does not represent the neighborhood in total; and he is proud of the neighborhood and the class and character that has been shown tonight. He stated the drinking establishment is not compatible with the community; it is to be positioned at the entrance of the only access to his street; the residents will be facing the certainty of intoxicated people coming down the streets; and this will occur early in the day when children are out and about, exposing them to drunk drivers. He stated there will be intoxicated people in the neighborhood at all hours of the day; they will bring the potential for harassment, vandalism, unruly behavior, and crimes against people; and it is a fact that those are the things that happen around drinking establishments. He stated the proposed business security system may be excellent; but as it will not allow an intoxicated person into the business, that person may instead come into their neighborhood; and that person would never have made his way near the neighborhood without the drinking establishment being nearby. He stated all it will take is one bad incident, and they will rue the day that liquor was approved at the mouth of the neighborhood. He stated they have a quiet neighborhood; and to bring drinking into the area is not compatible. He stated according to information from Florida Department of Law Enforcement, in 2003 there were 1,122 arrests for DUI in Brevard County; and he can only imagine how many people were not caught. He stated the National Highway Traffic Safety Administration estimates that three out of every ten individuals will at some time in their lives be involved in an alcohol-related crash; in 2003, motor vehicle crashes were the number one cause of death for people from age two to thirty-three years; and the Florida Department of Highway Safety and Motor Vehicles reports that in 2003 there were 57 alcohol-related crashes on Merritt Island. He stated according to Gallup, 97% of the driving public feels drinking and driving is a threat to their personal safety and 66% feel it is extremely important to do something to reduce the problem; and according to the Bureau of Justice and Statistics, approximately 40% of all crimes, both non-violent and violent, are committed under the influence of alcohol. Mr. Willcox requested the Board not allow more alcohol to be served in the neighborhood; stated it is not compatible; and they do not need increased threats to their lives. He stated he has not heard from the Grangers, although he is listed in the phone book; they asked for a copy of the business plan, but were refused; and he assumes that is because the true projections of the amount of alcohol to be served were detailed in the business plan.

Commissioner Pritchard stated the reason the Grangers objected to providing their business plan is that it contains personal information; and they did not want to divulge their personal information. Mr. Willcox stated that could have been redacted; they are not interested in that information; but they were interested in what the projections were for the amount of alcohol sales.

Peter Dillece stated he lives on Biscayne Drive; and he received a card saying he was within 500 feet of the establishment. He thanked the Commissioners who took the time to visit the neighborhood or sent a representative; and advised he is appalled by the statements received by Commissioner Pritchard. He stated they are concerned about the 5.9 acres, the CUP, and other businesses moving in adjacent to the establishment; they have no qualms about the Grangers; there are no problems with the pool hall being there; but they have a problem with the alcohol being served. He stated he was in Saskatoon, Canada recently for his brother’s wedding; they went to a restaurant and then to a pool hall; and it was a nice establishment. He stated some effects of drug and alcohol consumption are impaired judgment, slow reaction, and poor vision and concentration; a person’s judgment is the first thing affected by drinking alcohol; and if one drinks and drives, the chances of being in an accident are much greater than if they did not drink any alcohol. He stated no one can drink alcohol and drive safely even if they have been driving for years; young drivers are more affected by alcohol because their bodies are still in the growth process and their livers are not as developed; and they cannot efficiently process alcohol in the bloodstream. He stated alcohol reaches the brain in 20 to 40 minutes; and what he is reading from is the Florida Drivers’ Handbook. He stated these are things that are told to people before they get their drivers license; they are to respect the use of alcohol; but most people when they go to bars drive home. He stated not everyone respects the law or considers getting designated drivers; they got news of the establishment after the zoning was established; and inquired why the Grangers did not come to them before to advise they were planning to put this establishment at the end of the street and not wait until now to try to get the CUP. He requested the Board reflect on the impact on the lives and property of the people living in the neighborhood.

Raymond Scarpa stated the courtesy notice that was sent to a few of the residents in the Sunset Groves Subdivision says, “This courtesy notice is being sent to inform you that your property is within 500 feet of property owned by Anthony La Court who is requesting change of classification of 5.94 acres. The property is located on the southwest corner of Duval Street and North Courtenay Parkway.” He stated the notice clearly states that Mr. La Court is applying for a change in classification; it is not Mr. Granger or Diamond Zone Billiards as many believed; and they have been focusing their concerns on a single business that will serve alcohol when the reality of the situation is that any business that locates in the business plaza will have the legal right to serve alcohol on premises since the conditional use permit would cover the entire site of 5.94 acres and not just the one business being discussed. Mr. Scarpa stated any business that opens at this location and fails could be replaced by a bar or other business that serves alcohol; and this is a major concern as businesses fail on a regular basis. He stated since several businesses will locate in this plaza, the possibility exists that they all could serve alcohol, not just Diamond Zone Billiards; and Diamond Zone Billiards is being used as a key to open the floodgates. He stated the U.S. Commerce Department says that of ten businesses, seven will still be open after the first year, three will still be open after the third year, and one will still be open after the fifth year; the Small Business Administration maintains that nine out of ten small businesses close in the first year; and that leaves open the possibility of having a large number of business failures, and a turnover to a business that will serve alcohol. He stated they do not want any business that serves alcohol to be located at the business location because it is too close to the subdivision and the children; and if the CUP is granted, it will set a precedent for other businesses located in close proximity to other developments, subjecting them to the same concerns and dangers the Sunset Groves homeowners will be subjected to. He stated the request for conditional use permit is unacceptable to the residents of Sunset Groves; and requested the petition be denied.

Stephen Townsend declined the opportunity to speak.

Commissioner Pritchard stated there was a question last time about the CUP on the six-acre parcel; and inquired can the Board make it specific to the business and not the entire parcel. Mr. Enos advise the Board can limit the conditional use permit to a unit or more than one unit; in this case the business is occupying three units; and the Board can limit it to a type of establishment. He stated it would not be appropriate to limit it to a particular tenant or owner because zoning runs with the land not the owner; but the Board can put reasonable conditions on the property that may address any specific concerns it has. Commissioner Pritchard inquired could the Board approve a CUP for the units the business would be in; and advised the applicants have already said they would be subject to the removal of the CUP should they sell. Mr. Enos stated yes to the first part; but as to the second part, it would not be appropriate to eliminate a conditional use permit just because a tenant vacates. Attorney Bentley advised she agrees with Mr. Enos. Mr. Enos stated the Board can review any conditional use permit at any time if it fells that conditions are not being met. Commissioner Pritchard stated the Board would have an option, should Diamond Zone go out of business seven or eight years from now, to either renew or remove the CUP. Attorney Bentley advised the Board would have to show a change in the conditions not related to the ownership; and it would have to be a change in the land use.

Mark Lineberger declined the opportunity to speak.

Marie Ricouard stated she lives on Biscayne Drive; she is appalled by the nastiness tonight; and requested anyone who has anything nasty to say about anybody to stay put. She stated she is going to plead with the Board to deny the CUP; she has three children and has been a mother for 18 years; she has devoted her life to protecting her children; and one intoxicated person could take that away in a second. Ms. Ricouard stated at the last hearing the Grangers said they had a dream to have a billiards establishment and they are putting $1.5 million into it, which is wonderful; but she also has a dream, which is to raise her children and make sure they are healthy and protected from harm’s way. She stated she hopes the Grangers get their dream; but she wants her dream too. She stated she moved to this area because it was a safe area; there is one way in and one way out; and she can keep an eye on her children. She stated there could be one child or twelve children at the bus stop; and not all parents can be there to take their children home. She stated she is not there to see her children leave for school; her little boys stands at the bus stop at 7:20 a.m.; she has to be at work; and she does not get home until 6:00 p.m. after her children come home. She expressed concern about coming home and finding that her son got hit on his way home from school; and stated it is not a place for alcohol, but a place to raise children. She stated alcohol is not compatible with the neighborhood; if it was somewhere else, that would be great because she would have a choice to drive home or drive by it; but she will have no choice because there is one way in and one way out. She stated everybody on her street will have to drive by the establishment; and they do not want it. She stated they do not want to deal with people who have impaired judgment; and upstanding citizens can get drunk too. She stated she has a list of people who have DUIs, from Wynonna Judd to Senators; people cannot always control their alcohol; they think they are not drunk and can drive; but it would just take one intoxicated person to hit one child; and she does not want it to be her child or anyone else’s child. She stated it should not happen; this is the wrong place for alcohol; and it has everything to do with alcohol. She stated if they were putting a Laundromat there, it would be great; but if the Laundromat decided to sell margaritas while people were watching their laundry tumble, they would be for denying the CUP. She stated alcohol is not compatible; Ms. Benn said one thing that is wrong; and she is going to correct her. She stated David Ricouard did not ask anyone in particular to post whatever was on the Internet; he sent it and advised where one could go with questions or comments; and there are no facts. She reiterated she loves her children; she loves her neighborhood and neighbors; and she will devote her life to all of that; but this is not the place for alcohol because there are too many people.

Jessica Hayes, Giovanni Giambanco, Judy Peeples, Todd Teal, and Tina Wells declined the opportunity to speak.

Mark Oddi stated the Diamond Zone is located on SR 3; and it is not in the neighborhood like people would have the Board believe. He stated the presumption that drunks are going to be driving down the little circle with no connection to another road does not make sense; and inquired if someone drove down a highway to a business that is located on the highway, would they get in their car to leave and go back on the highway or drive somewhere to a little housing plan with no exit. He stated growth is inevitable in a commercial zone; and he does not understand why someone would buy a house in a commercial zone and then expect everyone else to change their life dream because they do not like commercialization.

Bob Wydra declined the opportunity to speak.

Dr. Frederick Oddi stated he retired in 1996; and he likes to play pool; he has played pool all his life; and it is a very enjoyable and wholesome sport under certain conditions. He stated a few months ago he went to Orlando to watch a world-class championship tournament; there were people from a good part of the country there playing in competition; and the place was crowded. He stated the place was also dirty; players were complaining about the conditions; and customers were complaining they could not see the tables. He stated he has been over a great part of the country where there are billiard places that are magnificent and enjoyable places; and he engaged some of the people in conversation about what they thought. He stated they said they were not happy with the conditions they were playing under; he asked about having a nicer place to come to for a world-class tournament; and the professional players said they would be happy to be participating if they were invited to such tournaments in this area. He stated that would bring a lot of commerce into the area including families who would take hotel and motel rooms; it would bring salesmen from the sports companies to the County; and in general it would be a good thing for the community if it was kept on a very high level. He stated he is concerned about the zoning; looking over the entire community, the whole area is speckled with places that are intermingled with residential and commercial areas; there are bars very close to houses; and inquired what is going to happen if everybody in those communities comes in to protest the next time one of the businesses is sold. He inquired are they not supposed to be there or are they a part of the business community, tax base, and employment community. He stated all goes together; and requested the Board consider that.

Brad Smith stated he is a teacher in the County; he started on Monday, August 19, 1971; and on his hour lunch break he went to a pool hall where he asked permission to play on an empty table. He stated he has played pool and taught school successfully in Brevard County since then with successful evaluations; his students in fifth grade also play APA pool; and the ex-mayor of Cocoa John Blubaugh is a pool player. He stated he is a homeowner in Cocoa; he moved there in December 1979; Olive Street is a one-way street to the river; a bar is at the top of the street on Forrest Avenue; and he has played pool there. He stated he has two daughters that he raised on that street; people left the bar and drove down the street; and in all his years, there was never an accident along that street. He stated he supports the Diamond Zone; and he is looking forward to playing some nationally recognized players.

Fred Shay, Vivian Shay, Gwen Wittfeldt, Douglas Bickham, Donna Johnson, Kathleen Niehaus, and Jan Tarsitano declined the opportunity to speak.

Greta Ferebee stated she lives on Biscayne Drive and does not want to see this happen in her neighborhood; and she does not want a turn lane in exchange for a CUP for alcohol. She stated Mrs. Granger spoke about the need for enjoyment and entertainment in the community; that is true; more places are needed for people to go and enjoy themselves; but she does not think her neighbors are going to participate in this. She stated this is something that is not going to benefit their community; they knew they had light industry in the zoning plan; Brighthouse networks was already present in its large establishment across Duval Street; it is a large business with a lot of traffic going in and out; but it is wonderful. She noted during the last hurricane she did not lose cable; and she thought that was great. She stated most of her neighbors are never going to go to the billiard establishment with the alcohol; it is not what they want to see; it is not something that benefits Sunset Groves; and requested the Board not let their neighborhood get snookered in this deal.

Dave Ruppe stated he grew up playing pool in the little bars; he bought a business and worked at it for about ten years; and one day he decided he needed to get a hobby. He stated he went to an upscale pool hall in Danbury, Connecticut and was amazed at how the establishment was run; and after talking to the Grangers about their establishment, he wanted to make it clear that there is a large difference between an upscale pool hall and otherwise. He stated he has run tournaments throughout the east coast, from Connecticut to Florida; he played in various tournaments; and there is a wide range of pool halls and billiard communities. He stated he wanted to make sure it was clear that the Grangers’ direction is to promote pool and to bring people to the County. He stated alcohol is a part of pool just like it is in golf; everybody has their drink of choice at the end; he never drank alcohol in over 17 years; and he chose Coca Cola. He stated he is currently the tournament director for the Fury Cues and King’s Bay Promotions; they are bringing top amateur tournaments to Florida; and he recently traveled up and down the east coast of Florida looking for pool halls and billiard halls to support the tournament. He stated there is nothing in Florida or Brevard County that can offer the type of establishment that the Grangers are looking for; there are a lot less admirable businesses that could go in there; and waiters and servers have advised him that pool players do not drink that much. He noted it is hard to play pool inebriated; it is a game that anybody can play; however, it takes a lifetime to master it. He stated he would love to see the Grangers get their dream.

William Burke, John Day, and Igor Chuyan declined to speak.

Brian Lawrence stated he is the league operator for the American Pool Players Association; he currently has 1,500 pool players in the County who are members of the Association; and they are all looking forward to playing in the Diamond Zone. He stated he has seen the plans; he has been in on it since ground zero; and it would be an honor for Brevard County to be able to show off an establishment of this sort as very few counties have it. He stated there are pool halls and there are pool halls; and this happens to be one that would be unrivaled by any other.

Kevin Kemppanion stated he lives in Merritt Island and is the owner of Kevin’s Billiard Supply, which will be approximately one mile south of the establishment being discussed today; he started the business over three years ago; and it is only open three hours a day and from 10:00 a.m. to 4:00 p.m. on Saturday. He stated the business is not big, but it is growing; he started the business because he saw that pool was going to grow in this area and there was no place to get the supplies; and while they have not grown by leaps and bounds, they are still there. He stated they are beating the statistics; they did not fold the first year; and they are paying rent on the third year; and when he heard about Diamond Zone Billiards, he thought it was a great thing. He stated he thought they would get recognition on the Space Coast for something other than space shuttles; and commented on TV coverage, people staying in hotels and going to restaurants, and growth in the tourism industry. He stated it comes down to the Board because no matter what they say, the Board needs to look at the laws the way they are written; and if people have submitted the permits and gone through the procedures, they should be able to legally have this. He stated there are pool halls all over and he does not see people going crazy; as far as alcohol, people can go to Beef O’Brady’s and see five of six police officers sitting there having sandwiches, watching football, and having a good time; and inquired where is the harm. Mr. Kemppanion stated this is a very good thing; there can be a lot of benefit to the whole area; while he understands the concerns of the people, a lot of the fear is in not knowing what is down the road; and people are jumping the gun on it.

Ms. Lawandales inquired if a restaurant with 50 seats or more has to get a CUP in order to serve alcohol in a shopping center like the one in question; with Mr. Enos responding not in a shopping center as defined by the Code, but he is not sure this would meet the definition. Mr. Enos advised he does not know how big it is or whether it has an anchor tenant so he cannot answer the question without further study. Ms. Lawandales stated at the last meeting, she entered a report that clearly documented competent substantial evidence and testimony that addresses the compatibility issue and all of the issues the CUP requires. She stated the request is for the building, not the whole six acres; and it is the County’s responsibility to show that there is a diminution of value. She stated she has lived in Satellite Beach for 16 years; she lives two and one-half blocks from A1A; and at the end of each of the streets there are Bunky’s, Magnolias, the VFW, the bowling alley, DaKine Diego’s, and other places that serve alcohol at various hours of the day and night. She stated there have been no troubles; and the values of their homes have continued to rise substantially. She advised staff says the trips generated from the existing zoning are 375, and from the proposed request are 375; the test on the CUP is whether there is an increase of 20%; and in this case, there is no increase. She stated the previous speaker clearly indicated several examples of places where there are commercial, industrial, and residential developments that peacefully coexist. She stated there is no left turn on the Duval side; one of the access points is blocked so that nobody will go into the neighborhood; and the primary access to the parcel is the south entryway that leads directly to the subject property. She stated photograph two was taken standing on Courtenay Parkway looking due west and through where the access drive is; and one can see no houses through the trees. She stated photo number one was taken from Duval looking toward Courtenay Parkway; one can see the dense brush; and although it cannot be seen, there is a ditch there. She stated the wetlands, tree barrier, and over 400 feet from building to building is a substantial buffer; and it is her professional opinion as a planner for 25 years in Brevard County, that this is consistent and compatible. She stated they would be glad to enter into stipulations that the Board may find necessary in terms of trash to attenuate anyone’s concerns about late night trash or to satisfy the attorney’s concerns. She stated as the CUP runs with the land, the Board may like to put a sunset provision on it at some point, if it can, if the business is sold by the Grangers or in looking for the future success of the business. She stated this is a $1.45 million investment; it is not a fly-by-night operation nor are the Grangers fly-by-night people; and she suspects the users will be a lot of the neighbors from Merritt Island, Cocoa, and Cocoa Beach; but they can only do that if the Board approves the request. She stated she apologizes if they engaged in any negativism; she and Mrs. Granger tried not to have any of their comments go there; and thanked Commissioner Pritchard for all he has done. She stated she is sorry Commissioner Pritchard endured so much negativism on behalf of the project. She submitted the Diamond Zone Billiards business review; and stated the are no secrets and a copy was given to one of the members of the Homeowners Association. She stated she would appreciate the Board’s consideration; and she will be glad to address any issues it might have.

Commissioner Colon stated usually an establishment comes in when it is ready to build the facilities to get an understanding of whether something of this magnitude would happen; and inquired why was the building built and the CUP not taken into consideration. She inquired if they assumed the Board was going to approve a CUP for alcohol or is there something she is not understanding. Ms. Lawandales stated she does not think there was any assumption of that nature; it just boils down to ignorance; a lot of times people do not understand what the rules are; it was not until they were a little further along into this that it was determined, at which time they made their applications; and now they are before the Board. Commissioner Colon inquired if they understand that if they start a business, it must be legally zoned for that business, but that the alcohol sales are in question this evening; with Ms. Lawandales responding yes. Commissioner Colon stated the business is allowed to go forward; that is what some people did not realize; and the Board would not be denying the business from being there. She stated the consideration is in regard to the alcohol; that is where the discrepancy is; and she was not sure if that was mentioned last time.

Commissioner Scarborough inquired if Ms. Lawandales is saying in her professional capacity she does not see any problem with compatibility; with Ms. Lawandales responding that is correct. Commissioner Scarborough inquired how many times has Ms. Lawandales appeared before the Board; with Ms. Lawandales responding she cannot give an exact count, but it has been quite a number. Commissioner Scarborough inquired if Ms. Lawandales ever remembers testifying to the Board contrary to her clients’ requests; with Ms. Lawandales responding no, but she has not taken certain cases because she had opinions that differed from the clients’, so if she has appeared before the Board, it is because she believed in the cause. Commissioner Scarborough inquired if it is not because normally Ms. Lawandales is appearing in favor of; with Ms. Lawandales responding she is here representing the client; and if her opinion differed from the client’s in the beginning, she would not have taken the case.

Commissioner Pritchard stated there has been an assumption if someone plays pool they drink and if they drink they get drunk; there has even been the mention about the roar of a motorcycle; and he just bought a Harley. He stated Ms. Granger mentioned a lot of precautionary things she was going to do such as cameras, security guard, ID, etc.; and requested she go through that again. Ms. Granger stated her staff is going to be specially trained to make sure people do not overindulge and try to drive home; they will stop them and door security will give them a ride home; and they are going to have cameras inside the facility to make sure everybody behaves. She stated there will also be cameras in the parking lot, which are a huge diversion to anybody who may have thoughts of doing anything unsavory. She stated just like on a golf course, everyone enjoys having a beverage of choice at the end of the match or at the beginning. Commissioner Pritchard stated they talked about the point of access; in looking at the map, for the folks who live on Biscayne, the access is Duval; and they will be pulling into Duval to go back to Biscayne. He stated from Courtenay Parkway to Biscayne looks like 1,200 to 1,400 feet or maybe more; Ms. Granger’s property is located at the southern terminus of the buildings under construction; and just opposite the building is the point of access at the end of the decel lane. Ms. Granger stated that is correct; and it is on SR 3. Commissioner Pritchard inquired if Ms. Granger has thought about putting a sign at that location encouraging people not to go on Duval and try to wind their way through a parking lot, but go to the southern entrance. He stated he lives on North Merritt Island and is familiar with it; the majority of the people, he assumes, who would attend would come from the south; so they would no go north through the parking lot to exit at Duval, but would go through the entrance/exit at the south end opposite the Grangers’ building, which is approximately 100 to 150 feet away. Ms. Granger stated the entrance to Diamond Zone sign would be erected at the main entry point, which is right off SR 3 at the end of the decel lane. Commissioner Pritchard stated the reason he is bringing this up is because the folks who live on Biscayne have a bus stop that is located at Duval; at the meeting in his office they spoke about moving the bus stop down a bit, which he is sure the School Board would not have a problem with; and then the Grangers would erect a shelter, which the children currently do not have. He stated the decel lane would provide an avenue for the bus to get off Courtenay Parkway; and the shelter would provide shelter for the children. He inquired if the hours of operation are from 1:00 p.m.; with Ms. Granger responding that is correct. Commissioner Pritchard inquired if Ms. Granger said she was going to have a senior time or league; with Ms. Granger responding yes. Commissioner Pritchard inquired if that would be from 1:00 p.m. to 3:00 or 4:00 p.m. Ms. Granger responded she would be willing to adjust the afternoon hours; but the senior folks have approached her for an after lunch social so they can get together right after lunch, play pool, and then head home. She stated that way they can be out of there in early afternoon and be home in the evening; 1:00 p.m. will also facilitate vendor deliveries; and they will also be working on making sure the house is in top-notch condition before any patrons come in, so the doors will be locked until they open. Commissioner Pritchard stated the reason he is mentioning this is because there is a concern there would be some other type of element that would be using the facility at the time in the afternoon when children are getting off the bus and going back into their neighborhood; commented on emails he received; and advised in the afternoon the senior crowd is most likely the type of crowd that will be there. He stated he understands the concern of the neighborhood; but he also understands the type of clientele that would be coming during certain times of the day are going to be different; and he knows in Las Vegas, for example, if someone wants to feel safe, they should stand in a casino because of all of the security cameras and other features. He stated there are a lot of things that are being put in that could add to the compatibility of the project in this neighborhood; there are a lot of projects on Courtenay Parkway; access/egress is off the south end of the property where the facility would be; signage would be located there; and the decel lane extends down to that point. He stated throwing in the Italian restaurant that currently has an outlet in Titusville that is coming down to the center, it provides an opportunity for people to recreate but at the same time provides opportunity to insure additional safety to the neighborhood. He stated the concern he has is that the Planned Industrial Park is going to be getting a lot of traffic, whether people are going for nails or tile or whatever else is going to go in, and there is going to be one on the other side, so the bus stop has to be moved because it is not safe.

Ms. Granger stated there is a storage unit directly behind her unit, therefore totally blocking her place of business from visual sight from the west side; and it is not visible from Duval Street, only from SR 3.

Commissioner Carlson requested Attorney Bentley go over the relocation standards that are set forth in the Code and if a CUP is granted, under what circumstances it could be revoked. Attorney Bentley advised it would be if there is an unforeseen negative impact, such as emissions, particulates, noise, or other negative impacts; and it would require substantial adverse effects. She stated if the Board, for instance, limited it to three units in this particular development and they went to four units, that would be a violation of the conditions; or if there was a time limit on serving alcohol, such as 9:00 p.m. and they served until 11:00 p.m., that would be a violation of the conditions of the CUP; and the Board could institute proceedings to consider revocation. She advised it would not be automatic; and there would have to be another public hearing to revoke. Commissioner Carlson inquired does it cover public nuisance; with Attorney Bentley responding a public nuisance would be in the substantial adverse impact category, but it is a very high standard.

Chair Higgs advised Ms. Lawandales and Ms. Granger visited with her; all the comments have been covered that were made in that meeting; they discussed hours of operation and potential changes to that as well as garbage and the business being tied to the CUP; and she has it in writing, which she will submit for the record.

Commissioner Scarborough advised Mr. La Court and the Grangers came by to visit with him along with others. Commissioner Colon stated her office also had a meeting.

Commissioner Pritchard stated Commissioner Scarborough was asking earlier about compatibility with the neighborhood and whether the operation would be compatible; and he would like to know what else he may think about this. Commissioner Scarborough stated every piece of property is unique; for better or worse, there is only one entrance to the subdivision; and the Board ran into this particular problem with a neighborhood in District 5 and it got the County into paying a lot of money, although it was totally different because the Board did not like the way the building permits were issued. He stated the traffic transverses; the neighborhood is entering through the same area that people would be entering this particular establishment; and granted there is going to be an entrance to the south on Courtenay Parkway, but conceivably there will be traffic. He stated it says compatible with use, function, operation, and it talks about hours of operation; PIP is the Cadillac of the industrial zoning; it is the place that can be nicer than a neighborhood; and it is easy to just go to the billiards issue and the type of people who play pool, but the Board is required to look at the CUP for alcoholic beverages. He stated he is having a lot of difficulty with so many people who live there speaking to the subject that it is incompatible to find anything but a problem in approving at this location; it does not mean it would not be great to have the Grangers’ billiard place on North Merritt Island or any place else in the County; but there are places that are better than others; and this is one where there is the only entrance to a subdivision, where there are young people living, and where people have their investments. He suggested if the Board wishes to proceed tonight with a determination of compatibility that it go to the next criteria and get an MAI appraiser to see if there would be any diminution of value that may occur because it is the burden of the Board to protect properties. He stated if the Board is going to go ahead and approve it, it should table the item and get an appraisal by an MAI.

Commissioner Pritchard inquired has the Board ever done that before; with Commissioner Scarborough responding yes. Commissioner Pritchard inquired when it last happened because he cannot recall having gone through that. Commissioner Scarborough responded that is the procedure; the Board cannot assume there is a diminution of value; and the Board would need to go to that measure to have that in the record. He advised the Grangers can get their MAI appraiser; and the Board can listen to both and make a determination; but there is separate criteria from paragraph B, “where we have incompatibility, use, function, operation hours, traffic generation. . . “ Commissioner Pritchard stated of all of the components for compatibility, Commissioner Scarborough is focusing on the one that has to do with diminution. Commissioner Scarborough stated he is not doing that, but is saying diminution cannot be considered by the Board this evening at all. Commissioner Pritchard inquired can the others; with Commissioner Scarborough responding yes. Commissioner Pritchard inquired how Commissioner Scarborough feels about them; with Commissioner Scarborough responding he does not think the applicant has carried the burden in proving it is compatible because of the testimony he has heard this evening. Commissioner Pritchard stated it is the testimony of the neighborhood that is concerned about Duval being the one street in. Commissioner Scarborough stated if they were on a jury Commissioner Pritchard may feel one thing and he may feel something else; but his feeling is there has been enough evidence before the Board as to the nature of the configuration of the neighborhood and type of the neighborhood, that he has concerns that he can find it compatible at this moment. Commissioner Scarborough stated if the majority of the Board wanted to find it compatible, it has a burden not to go ahead and proceed, but to go to the next level and assure there is not going to be diminution of value by getting an MAI appraisal. Commissioner Pritchard inquired if the same thing would apply for the Italian restaurant there; with Commissioner Scarborough responding when he talked to the applicant, he went to the issue of whether it is all six acres or just this business; and there may be some distinctions that can be made. Commissioner Scarborough stated the type of restaurant sometimes drives the type of license it has; and inquired can the Board tie the restrictions into the commercial activity; with Attorney Bentley responding not in the sense Commissioner Scarborough is describing. Chair Higgs advised the Board has tied a CUP to a unit of a building; with Attorney Bentley responding it has done that on multiple occasions. Chair Higgs inquired if the Board wanted to consider this, it could consider one unit of the building.

Commissioner Pritchard stated the problem he is having is, if alcohol is the issue, how can the Board allow anything, such as a restaurant that would serve alcohol, to be allowed into the Planned Industrial Park.

Commissioner Scarborough stated perhaps with a restaurant the Board would say certain hours of operation; it may say it would be beer and wine; so there are different levels of activity at different times; and that gets to be a factor as well. He stated since the Board has not gotten into an in-depth discussion, it would be inappropriate for him at this time to say any restaurant that serves beer is inappropriate per se because the Board has not been there; but it did talk about a very active establishment with substantially later hours than a restaurant would operate.

Chair Higgs stated one of the things that the Board has not talked about that is of concern to her is the issue of PIP and whether or not the use is compatible with PIP; and she has serious questions about the appropriateness of the proposed use and the CUP in PIP. She stated she wonders if industrial uses and the type of use being looked at are compatible; Commissioner Scarborough mentioned that PIP is the Cadillac of the industrial; and she is questioning not just the issue of compatibility with the neighborhood but the issue if compatibility within the industrial classification.

Commissioner Pritchard stated there is another PIP a little further up on the east side; right now it is just one building, but there is another under construction; there is a restaurant located in there as well as a couple of other activities; and he is wondering what would be inappropriate with having a variety of uses, whether it is tile or kitchen supplies or a pool establishment or a nail emporium where people could go and do a variety of things. He inquired if Commissioner Scarborough is proposing that PIP would only be some sort of industrial. Commissioner Scarborough responded the Board had a request in Titusville in the industrial park; the Board was asked whether it wanted to proceed with some of its deed restrictions; the issue came before the City of Titusville; and it was for a high quality school. He stated there was an enormous debate about the compatibility of a high quality school in a PIP zoning; so it did not even go to alcoholic beverages; and it just went to the heart of compatibility and whether it was a good idea to have a bunch of parents coming in at the same time business people are coming in and whether it was going to give the right feeling that this is an industrial park. He stated the issue of compatibility is not just an alcoholic beverage thing; there could be a church that is incompatible in the middle of a neighborhood because of the traffic flows and things; and there have been church arguments. He stated it is not just billiards or alcohol; it is the issue of compatibility; and it can be very difficult because every place has its own compatibility problem. Commissioner Pritchard stated in this situation it is not the billiard issue, but the CUP. Commissioner Scarborough stated people keep going to the billiard problem; the CUP for alcohol has its own dynamics because there is some risk in being around where people drink and drive; and beyond that are all the other compatibility issues. He stated nobody would say a school or church is bad; but in terms of compatibility, the Board has done over a whole Zoning Ordinance for churches because of compatibility issues as the larger churches begin to encroach into single-family neighborhoods. He stated it was completely driven by compatibility, not because the Board does not want churches; and he hopes nobody thinks the Board is opposed to religion but somebody could interpret that like people say the Board is opposed to billiards. He stated he is not opposed to billiards or churches or schools; but he would like to comply with the compatibility requirements. Commissioner Pritchard stated he was thinking of what Ms. Lawandales said about how in her neighborhood at the end of every street, because it is on A1A, there is an establishment somewhat like the one being discussed, whether it is a bar, restaurant, or pool hall; and it becomes a question, when there is a corridor like Courtenay Parkway with different facilities going in, what is the makeup of Courtenay Parkway. He stated Commissioner Scarborough mentioned Duval as being the one way in and out for residents on Biscayne Drive; but there is another way in and out for the subject property; and they will not have 100% of the drivers coming down Duval, weaving their way through a parking lot to get to the facility. He inquired if that has any effect on the issue; with Commissioner Scarborough responding the fact that some people will use the entrance road to the subdivision does have a profound effect on compatibility, not just the proximity but the common driveway; and that is where they ran into a problem in District 5. Commissioner Scarborough stated there were accidents; the Board took various actions; finally it just said even if it gave permits, it could not be done; and the County ended up paying a lot of money to clear up the problem it created.

Chair Higgs stated there are a number of Planned Industrial Park zoning parcels on this corridor going to the major industrial facility at the Space Center; the compatibility of PIP internally is a subject the Board should not ignore; and it should have some concern that it is not compatible with PIP. Commissioner Pritchard inquired if Chair Higgs is referring to the pool hall or the CUP for alcohol; with Chair Higgs responding all she is dealing with is the CUP for alcohol, because that is the issue tonight, not the pool hall. Commissioner Pritchard stated right up the street is another PIP parcel that has a restaurant that serves beer; he cannot separate the two and say that PIP is not compatible with a restaurant that serves beer and wine; and that is his dilemma. He stated he understands the concerns of the neighborhood; he understands the concerns of the participants; but he cannot separate out how a PIP cannot be compatible when others are, so he has to take that out of his thought process.

Commissioner Pritchard stated it does not look as though this item is going anywhere; and it looks like the support of the Board is to not approve a CUP for this establishment.

Motion by Commissioner Pritchard, to approve Item IV.A.7 for the three units of the Diamond Zone.

Commissioner Pritchard stated he would like to come back at a later date should an Italian restaurant want to serve beer and wine as part of the PIP, but the motion focuses on the Diamond Zone and the compatibility of a CUP within this Planned Industrial Park.

Motion died for lack of a second.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to deny Item IV.A.7 as recommended. Motion carried and ordered unanimously.

Assistant County Manager Peggy Busacca inquired if the Board would like the County Attorney’s office to prepare an order; with Chair Higgs responding yes.

The meeting recessed at 8:33 p.m. and reconvened at 8:44 p.m.

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATIONS OF
SEPTEMBER 20, 2004

Chair Higgs called for the public hearing to consider the recommendations of the Planning and Zoning Board made at its September 20, 2004 meeting, as follows:

Item IV.B.1. (Z0409201) Eduardo and Leonor Alvarez’s request for change from BU-1-A to RU-2-15 on 0.28 acre located on the southwest corner of Crescent Beach Drive ad Highway A1A, which was recommended for denial by the P&Z Board.

Attorney Philip Nohrr, representing Eduardo and Leonor Alvarez, stated the property in question is .28 acre; it is a lot on A1A, a little south of where A1A divides; and the property is currently zoned BU-1-A. He stated it is approximately 600 feet west of the river; and the request is to rezone the property to RU-2-15. He stated at the P&Z meeting, there was a recommendation of denial; he did not represent the applicant at that time; however, he is told the denial was based on the school capacity issue. He stated to the west of the lot the properties are all zoned RU-2-15; to the south of the lot is RU-2-15 and BU-1; to the east, which is on the other side of A1A, there is RU-2-15 and TU-1; and going to the north there is BU-1, which is developed as a trailer park that has been there for a significant number of years. He stated he is told the owner of the BU-1 has a request with the County to change to RU-2-15; and two of the lots to the west on the same side of the street are also zoned RU-2-15. He stated until August 1999, the property was zoned RU-2-15; at that time a request was made for BU-1 or BU-1-A zoning; and it was granted by the Board. He stated what is before the Board is a return to August 1999, if the request is granted. He stated the Board probably remembers that he was before it 18 months ago when the property to the north of the trailer park, which is zoned BU-1, requested RU-2-15; there was discussion at that time about the coastal high hazard area; and after that discussion, the Board granted RU-2-15 zoning to the property to the north, which was a larger parcel. He stated any review of the area will show that the predominant zoning is RU-2-15; the request before the Board tonight is just to bring the property into the same zoning classification that surrounds it; and it would be a maximum of four units. He stated to the extent there is need to discuss the School Board issue, he would say the property is not really any different from what he presented in terms of the larger property to the north; and the facts showed that the condos are not really attractive to folks with school-age children. He stated they are generally more expensive units; and one finds a diminimous type of population. He commented on another request that he brought to the Board for 20 units where the study came down to .18 student based upon other condominiums in the area. He stated the request is compatible with its neighbors; it is not going to do any injury to anybody; and it is returning the property to the zoning that is for that entire block. He advised Mr. and Mrs. Alvarez are present tonight if there are any questions; they have invested their life savings; and they would like to get on with some sort of development of the property. He requested a favorable approval.

Chair Higgs announced there are no additional cards from the public.

Commissioner Pritchard stated he has spoken to Mr. Nohrr about this; and they have gone over the zoning compatibility with the neighborhood; so he has no problem with the request.

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to approve Item IV.B.1.

Chair Higgs stated she will vote no on the item; the criteria of the Comprehensive Plan with regard to the Capital Improvement Element, Policy 1.3, concerning deputies has not been met, nor has it been met for correctional facilities and schools.

Commissioner Carlson stated she would agree; she does not think the Board has changed position; it passed the impact fees, but has not collected them yet; and reading through the minutes, Melissa Hoaglund, who is the appointee from the School Board, goes through her reasoning and the input she has gotten from the School Board, which has not changed its position at this point. She stated looking at concurrency, once a road reaches capacity, building stops until a fix is found; and if they reach capacity in a school but have not found a fix yet, they cannot allow continued growth that would impact the overburdened facility. She stated if the School Board would give an evaluation as to Merritt Island, because it is the one impacted here, that would provide that school X will fix the problem in X number of years, that would give the Board more leeway to make sense of this; but there are still other concurrency issues that need to be taken into consideration as well if density is to be increased. She stated she will not support the motion because of that; and the Board may need to pursue more specific judgment from the School Board so it can follow through with it so everyone will know what is being done.

Commissioner Scarborough stated they are talking about different types of impact fees; and he would prefer to take them one-by-one. He stated with the school impact fee, there was a request by Ben Jefferies; he had a lot of reservations about proceeding into it; but what the Board said to Mr. Jefferies and many afterwards was that they were going to put some money in lieu of impact fees and when impact fees were enacted, they would pay whatever the impact fees were. He stated now at this juncture the Board is saying it is not going to let people put up the impact fee; and inquired if they would go to Mr. Nohrr and have him come in with an agreement like Mr. Jefferies; and Mr. Nohrr would say he agrees to pay the impact fees. He stated he assumes they will pay the impact fees because they have to do so to get the building permit; but instead of doing that, he could come in with an agreement saying he agrees to do that; and he has a problem with the circle. He stated Chair Higgs brought the issue of deputies forward and the Board asked the County Attorney for a memorandum; and he does not know how to weigh in on that; but the Board has responsibilities. He stated in terms of transportation, he was asking Steve Swanke where the County stands on the different impact fees; the study came in and they are at 30.5% of what the impact fee could be; it goes up one percent per year; and they are not at full level of capital. He stated his problem is whether this is the place the Board needs to be discussing all the ramifications of impact fees; the Board backed itself in on the school thing; and he has difficulty not approving with the school impact fee. He stated the other two issues seem to be issues that have to be resolved by the Board; the Board will get the one memorandum; and it should also ask for information on the transportation impact fee. He stated the term capital improvements is used generally; but at this time he is going to have to vote for the motion because he does not think it is appropriate to go there without having a complete analysis of why he is there. He stated the community needs to know why he is voting in a particular direction; and he is not prepared yet to start denying items even though he may be, at a subsequent date, willing to deny them, although not on the schools because the Board has already thrown in the towel on that.

Chair Higgs stated the Board has clear guidance in the Comprehensive Plan regarding law enforcement and corrections; law enforcement is people not capital; and she does not know how they can get to an impact fee on that. Commissioner Scarborough stated he is not disagreeing; Chair Higgs brought the issue up; the Board asked for a staff report; and he would like to have a full Board discussion with the full staff report. He stated they may still disagree, but at least they will be fully informed. Chair Higgs stated there is a full Board tonight; with Commissioner Scarborough responding the Board is dealing with a specific zoning action; and if it takes that and does as Chair Higgs requests, it is contrary to the way the Board has been voting on everything before. Chair Higgs stated when the Board went forward with the concept on the school, it was not complying with the Comprehensive Plan in regard to schools; and the Board confronted that issue, which was in the Suntree area. She stated that is why sometimes the Board can only do things when it has an application; and that is why she would vote for denial.

Commissioner Scarborough stated he is not disagreeing with Chair Higgs; but he does not know enough about it to be informed and use it as a basis for denial; and he appreciates Chair Higgs’ comments; but he needs to have the full staff report before he begins.

Commissioner Carlson stated if that were true, it would make sense to table this until the Board has the discussion. Commissioner Scarborough stated he has no problem supporting a motion to table. Commissioner Pritchard stated he does; the Board cannot have it both ways; the issue forever was school impact fees; and now that has passed and the Board is finding a new way to say no. He advised Chair Higgs’ information is wrong on that; and she is quoting Policy 1.3 of the Capital Improvements Element, which does not exactly say what she is saying. Chair Higgs inquired what does it say. Commissioner Pritchard stated the November 6, 2003 memorandum on deputy ratios is wrong, deceiving, and bad math. Chair Higgs stated Commissioner Pritchard needs to talk to Chief Deputy Crawford. Commissioner Pritchard stated the Chief Deputy has it wrong; he disagrees with what the Sheriff said a couple of years before; and a calculated ratio based only on unincorporated population is wrong. He stated a calculated ratio based on the entire County is wrong. Commissioner Scarborough requested the discussion be deferred until next Tuesday and the item be tabled to October 19, 2004. Commissioner Pritchard stated he does not want to table it. Commissioner Scarborough stated he trusts Commissioners Pritchard and Higgs; but he wants to get a report and read it before he is compelled to agree with one of them. Commissioner Pritchard stated Policy 1.3 uses the words should, advisory, and guidelines; it says two deputies per 1,000 residents, .003 inmate; currently in the unincorporated area there are 2.4 deputies per thousand; and in the total County there are 2.2 because one cannot count the entire County without counting the municipalities because they are part of it. He stated what Chief Deputy Crawford did in the memo was mix apples and oranges and come up with a couple of pears; the information is not correct; and the Board cannot continue to table things based on the newest way to say no. He stated Policy 1.3 does not say it is cast in stone; it says advisory, guidelines, and uses the word should; and then it say 2.0 deputies and .003 inmate. He stated what they have are 2.4 law enforcement officers; and their bases are covered. Chair Higgs stated it says deputies not law enforcement officers.

Commissioner Colon noted it is 9:00 p.m.; there are a lot of people present; and it is unfair to punish the people who are here based on some decision the Board wants to make in the future. She stated it is irresponsible; she agrees with Commissioner Scarborough that if this is the discussion the Board wants to have, she welcomes it at a regular Board meeting; but this evening the Board is strictly talking about zoning. She stated everyone is welcome to their opinion; and if Commissioner Higgs or Commissioner Carlson do not want to vote in favor, they do not have to; but for one Commissioner to try to convince another Commissioner that this is what they should do according to some future ruling is not fair to the people before the Board today. She stated this is not fair unless the Board wants to table everything that is going to be similar to the current item; she went down this path years ago; and the people are the ones who get put in the crossfire, which is not fair. She stated if her fellow Commissioners want to make this decision, she would welcome it at a regular Board meeting; but recommended taking care of what is in front of the Board today with the regulations that everyone understands so everyone can be on a level playing field. She requested the Board vote on the item; and stated if it is going to deny something, it should at least give the folks the respect of tabling it until those discussions happen because it is not fair to deny anyone based on something on which the Board has not had a full discussion. She stated tonight at 9:00 p.m. she does not want to hear an argument or battles between Commissioners; and it is not fair.

Chair Higgs stated she does not think it can be anything but fair when she brought it up a month ago. She called for a vote on the motion.

Commissioner Scarborough stated if one Commissioner has resolved he is no longer going to look to school capacity, the Board is estopped to go back with where it has been with the community; and he wants to go into the other issues. He inquired would he be denying all residential rezonings that increase the density tonight or tabling them based upon that decision to be consistent. He stated once the Board goes one way, he has to have a degree of consistency or he will not know what he has done at the end of the day; his problem is going to be the deputy issue; and if the Board goes to the deputy issue, it is going to touch all of them, so basically it will have to table all residential requests this evening. Chair Higgs stated the Board has to be consistent. Commissioner Scarborough reiterated the Board will have to table all residential requests tonight; with Chair Higgs advising it would be those that increase density. Commissioner Pritchard noted the majority of them do; Chair Higgs says she brought this issue to the Board a month ago; and since then he has been trying to gather information from the Sheriff’s office, but was told he had to submit a public information request to get the information. Commissioner Pritchard stated the data that Chair Higgs has from the Chief Deputy is wrong; and it contradicts what the Sheriff had to say. He stated there are over two law enforcement officers per 1,000. Chair Higgs stated Commissioner Pritchard is talking about law enforcement not deputies; and that is mixing apples and oranges. Commissioner Pritchard stated Chair Higgs is talking about Policy 1.3, which says shall and should. Chair Higgs noted it is the same thing the Board used on schools. Commissioner Pritchard stated it is just another way to say no; and he is saying that the data and the way of saying no on this issue is wrong. Chair Higgs stated she will look at Commissioner Pritchard’s math. Commissioner Pritchard stated he will make copies for all Commissioners. Chair Higgs stated it deals with deputies not law enforcement. Commissioner Pritchard stated law enforcement is law enforcement; with Chair Higgs disagreeing. Commissioner Pritchard stated the Policy says should and guidelines. Chair Higgs stated that is the same language the Board used on schools.

Commissioner Scarborough stated the majority of the remaining agenda would be impacted if the Board starts down this course; the majority of rezonings are residential increases in density; and many have come with a unanimous recommendation for approval from the P&Z Board. He stated he cannot vote to deny.

Chair Higgs called for a vote on the motion. Motion carried and ordered; Commissioners Higgs and Carlson voted nay.

Item IV.B.2. (Z0409202) John C. Bell’s request for change from RU-1-9 and TR-1 to all TR-1 on 0.69 acre located at the northwestern terminus of Ackley Road, which was recommended for approval by the P&Z Board.

John Bell stated he inherited the land when his father passed away; there were two pieces of property; and he is trying to make them into one so he can move a new mobile home on it.

Commissioner Pritchard stated he has not spoken to Mr. Bell, but has been briefed by staff; and he has no problem with the item. Zoning Official Rick Enos advised this is not an increase in density.

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

Item IV.B.3. (Z0403203) Deven and Annamarie Metzger’s request for change from GU to AU on 5.33± acres and change from GU to RR-1 on 3.3± acres located on the west side of Friday Road, north of Shade Tree Street, which was recommended for approval by the Board.

Deven Metzger stated he is the owner of 8.6 acres on Friday Road; it is currently zoned GU; and he is requesting to rezone the rear five acres to agriculture and the front three to residential. He stated it fits the Comprehensive Plan and does not impact schools.

Chair Higgs stated the front three acres are already a residential classification; with Mr. Metzger responding it is currently GU and he is seeking RR-1, with the back rezoned to AU.

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to approve Item IV.B.3 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.B.4. (Z0409204) Joe and Marian Lee and Joe Hunter Lee, Jr.’s request for change from AU and EU to RU-1-13 on 30.4 acres located on the west side of North Tropical Trail, north of Pioneer Road, which was recommended for denial by the P&Z Board.

Attorney Philip Nohrr, representing the applicant, submitted paperwork; and stated the document he submitted is just conceptual and for orientation purposes. He stated he wanted the Board to have it because some of the people in the audience have seen it and may reference it; and he felt it was best for the Board to have it; but it is solely for the purpose of concept. He stated the property in question is located at the north end of Tropical Trail, just south of where it turns east to connect into Courtenay Parkway; and there are 30.4 acres involved. He stated to the north on the east by the road is a trailer park that is designated on the diagram he provided; next to that going west is some vacant land with an antenna/tower on it; north of that is a subdivision that is zoned RU-1-9; to the very west of that is EU; and to the south is AU. He stated the subject property has the first 600 feet or the west portion zoned EU; and they are not asking for a rezoning on that portion. He stated the request was originally for RU-1-13 with 114 units; that met with some opposition; and at the P&Z meeting they modified it to EU, EU-1, and RU-1-13 on the very east. He stated since that time, they got rid of the RU-1-13; when he met with Commissioner Pritchard, what he showed him was EU-1 on most of the property with a total of 48 residential lots on it; staff points out that as currently zoned the property can support 22 units; but they decided to make the request for the whole thing to be EU, which reduces the lots to 41. He stated that is the request the Board has in front of it; it is different from the one they applied for; they have noticed it twice; but each time they have reduced the number of units; and they are hoping that will be acceptable. He stated the property to the south is AU with a grove except on the very riverfront; they expressed some concerns; and the applicant has tried to address their concerns by stipulating that as they develop the lots on the south side, they will put a fence in. He stated the neighbor is concerned about any potential uses of the property going onto the grove; and the applicant agrees to put up fencing. He stated one of the issues that was discussed was traffic; staff has done an analysis; and they would have met concurrency based upon the 114 units that they were going to put in, but now they are only putting in 41 units. He advised there are already 210 trips for the currently authorized 22 units; their proposal would generate 392 trips or an increase of 182 trips; and it does not affect the level of service; so by any objective criteria, the traffic that would be generated from the EU development would not negatively impact the road. He stated they have tried to take the concerns of the neighbors into account; looking at the entire area, one sees a predominance of EU zoning; and this request is in keeping with that. He stated it is compatible; to the north there is an actual use of zoning that is a lot more intense than what they are asking for; and from a compatibility point of view, their request is good zoning. He stated they have talked about traffic; he does not want to go into the School Board issue again; they are talking about 19 additional lots; and the engineer and potential owners are present. He stated they are happy to talk about any of the other issues such as drainage; those things will be taken care of in the site plan; and they believe they can develop this within all the existing Codes. Attorney Nohrr reiterated EU is the predominant zoning north of SR 520 west of Tropical Trail; and he would be pleased to take any comments or questions.

Tina Williams stated she lives in Indian River Villas and abuts the property in question; the change in density has gone to the better; and she has no problem with the actual growth or changes to that. She stated her backyard is within the floodlines that go from the beginning of the subdivision, as it is being proposed, all the way back to the Indian River; and since the hurricanes, she still has standing water. She stated it is not being stated exactly where the retention would be; they have seen what they have worked in Orlando with all the engineering that has been done; and she still questions raising the elevation in that area and having runoff that would cause more flooding. She stated her property slopes more than six inches today from the time she purchased it two years ago; it has been worse since the hurricanes; and that is the main concern. She stated her second concern is the traffic; on Venetian Way going into Courtenay Parkway, one cannot exit and make a left hand turn in a safe manner; most people use Pioneer and Tropical Trail to get to a light to exit in a safe manner; and weekly there are accidents in that area. She stated that area is also where the central precinct for the County is located; multiple times they have actually been close to being hit by the police officers coming out; and if someone is trying to turn in, they are dodging traffic. She stated she provided the Board with a layout of the overall area, which includes both sides of Courtenay Parkway; currently four homes have been completed on Venetian Way, which added additional cars that park in the median; an office and warehouse on Venetian Way that will add business traffic are near completion; and there are construction projects that just started including Mercedes Homes, which is adding 116 homes and Tropical Cove Condominium, which is adding 46 homes. She stated she has talked to the Department of Transportation; there are no plans for adding any type of lighting; people come out of the Racetrac gas station and dart across to go south; there are people from Venetian Way trying to get across to go to work; there are also Sea Ray and the bridge; and it is a madhouse. She stated now they are adding 116 homes next to Villa de Palmas; there is a possibility of future expansion on the Mercedes property if a light was placed there; but there are no plans at this time, nor has there been a proposal for a permit for a light. She stated that was also the discussion during the Mercedes proposal at the March 2, 2002 Board meeting where the County Commissioners were concerned that SR 3 was coming up to 100% capacity; but now two years later, obviously it is still not up to 100% capacity; and growth is inevitable.

Joseph Murray stated he lives on what is shown as Parcel 3 on the developer’s map; it is 1.4 acres on the Indian River; and it is the most significant privately-owned piece of property surrounded by this particular development. He stated he feels strongly the comments of the P&Z Board should be maintained; the applicant has gone from 100 to 60 to 48 to 41 units; but the authorized amount of density recommended by staff is 22 units. He stated this area, which has been used as agricultural for 100 years has been a key floodway for that portion of Merritt Island; everything from Crockett runs toward that direction just north of his homesite; when the previous homeowner developed, there was concern about how that would affect the floodway; and as a result, there was a requirement to keep a certain area north of Parcel 3 as a buffer zone to prevent damage from hurricanes. Mr. Murray advised during the most recent hurricane, that area really helped save their properties in that area; currently there are only two parcels out there; one is Parcel 12 and the other is his; and looking at those parcels, which are EU, they are not the same size or even close to the same size as the ones being proposed. He stated he is happy that the developer decided to change from RU-1-13 and to come down from 160 units; and recommended the Board leave the density at 22 units and ask the developer to be very careful about his development in regard to the floodway as well as the forestation and flood mitigation.

Attorney Mitchell Goldman, representing Alma Field, stated Mrs. Field owns the property immediately to the south; it is a 45-acre piece; and the five acres on the river is Mrs. Field’s residence with the remainder being orange groves. He stated the groves are continually worked; the piece is quite unique; it was originally homesteaded by Mrs. Field’s family in the late 1860’s; the home was originally built in the 1880’s; the home and groves were placed on the National Historic Register in 1997; and it remains working groves. He stated they appreciate the fact that the applicant has downzoned his earlier request, but they still have some concerns. He stated they want to make sure there is adequate buffering between what is proposed and what is in place on his client’s property; the applicant has not submitted a binding development plan so he does not know the appropriate methodology; but they would like some kind of buffer in addition to the preservation area such as an opaque fence to separate the new proposed homes from the orange groves and the currently zoned EU so his client’s property is not disturbed. He stated Tract B is very close to the Indian River; and apparently that will be reserved for the association members to gain access. He stated it says pedestrian river access; he does not know if they will be parking there; but he assumes they will park their cars there and walk to the river. He stated his client has certain structures on her property that are used for the maintenance and care of her groves; and they desire to minimize any impact that might have. He stated as the previous speaker noted, there are concerns about drainage; he knows that will be dealt with at the planning stage; but there are substantial concerns because the area is still wet from the recent hurricane.

Attorney Nohrr stated the traffic studies have been done; the count has been taken; and it was level C before and after, so they do not believe it is going to impact traffic; but if someone shows them an impact, they will try to address it. He stated there are very specific rules about drainage; and they will comply with all of those rules. He stated they cannot let their runoff impact their neighbors; and it is not their intention or desire to let that happen. He noted the St. Johns River Water Management District will not allow it to happen and the County’s staff will not allow it to happen when they come in with the site plan. He stated it would be a shame to say that other people can have EU but this property has to stay with AU; he understands not wanting things developed; but they have reduced and reduced to the point where they are asking for the same zoning as everybody else in the neighborhood. He stated granted some of the lots with EU are a lot larger than the minimum EU size; but that does not mean that once they have EU they cannot come in and subdivide their lots if they want, not that it is their intention to do so. He stated they changed to EU because it is what made sense in the area; the development is reasonable; and they agreed to the fencing. Mr. Nohrr advised it is ironic that they are protecting the orange grove to the south from the homes; but if that is what the neighbors wish, then they are more than willing to do that to make the rezoning happen. He noted the western 600 feet is already zoned EU; that is the part that is closest to the river; there is a slough past there, which is probably where a lot of the drainage will occur taking into consideration the natural topography; and it will not impact the neighbors to the north south, or east.

Commissioner Pritchard stated he spoke to Mr. Nohrr about this and some of the neighbors have called him; much of this area of Merritt Island from Venetian Way down to Lucas on the west side of Tropical Trail is orange grove and other types of plantings; and over the course of the next ten years, there is going to be quite a bit of change that will be taking place. He stated the concern of the people is density and how many people will be brought onto Tropical Trail or exit onto Courtenay Parkway; he finds it interesting that Mr. Nohrr in the span of a couple of days went from 48 units down to 41; and he is wondering how many more trips it will take before they hit 22 units. He stated he has spoken to Mr. Enos, Mr. Corwin, and others about this; it is a unique area; and it may have the number compatibility that shows that it can support the amount of vehicle traffic; but anyone traveling Tropical Trail would realize that it is a winding road that is subject to flooding. He stated the Board needs a small area plan study to focus from Lucas to Venetian Way on the west side of Tropical Trail to insure that what is being put in is going to be compatible with not only the neighborhood but the roads, access, and egress points so the Board will know what it may do is going to be proper; most of the neighbors are not opposed to the development; they know the area is going to be developed; but they just want to keep the density as low as can be considered reasonable. He noted he has driven to Colonel Murray’s house a few times; it is a unique piece of property with a history that goes far back and is most interesting; it is a fascinating part of Merritt Island; and the uniqueness of it is something that the neighborhood does not want to see go away.

Commissioner Colon stated there was comment regarding orange groves; most of the folks have that issue; and the Board has a responsibility. She stated recently she was not willing to approve one unit per two and one-half acres because she preferred one unit to five acres; and the applicant was not willing to agree to that. She stated that would be the right approach; if they are only allowed to build 22 units, the Board should not encourage them to affect the community; and she is not willing to support the project being considered. She stated she is willing to allow them to build what they are legally allowed, which is only 22 units; and advised of beautiful developments in South Brevard at one unit per two and one-half or five acres that are very profitable. She commented on buildout; and stated she does not want to be part of bringing all those units into this area.

Commissioner Scarborough stated he has driven down Tropical Trail; there is an eclectic diversity; and people do not feel comfortable putting big money into it unless the Board defines it and they know that the next development is not going to come in as something else. He stated the small area plan is going to add a lot of value to property because there will be some degree of certainty; that is why the expensive neighborhoods have deed restrictions because people have certainty that no one is going to put something there that is going to diminish the value. He stated this is a wonderful area; it is unique; the lagoon is unique; and taking it and doing the right thing with this historical area is the way the Board needs to go because it will add value to people’s property. He stated the Board is going to bring in good money in a good way.

Chair Higgs stated the Board could give some definition to this developer tonight in going with the cap of 22 units as Commissioner Colon is suggesting on the entire property; there could be a usage of the open space; and there could be a zoning that would not require the two and one-half acres that the AU requires, leaving the cap of 22 units. She stated she would be willing to support a motion that would do that.

Commissioner Carlson stated she will support the small area plan; what everyone has said is true; and she does not have a problem with capping it at 22 units, but that may not be what the findings of the small area plan show. She stated the whole area is unique; she knows Tropical Trail well as she has lived in the County for most of her life; and it is an area that the Board wants to protect as best it can. She stated the small area plan will tell a lot more than what the Board has in front of it now.

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to direct staff to prepare a small area plan for the North Merritt Island/Tropical Trail area, with no conditions about capping. Motion carried and ordered unanimously.

Commissioner Scarborough stated in the past when the Board has requested a small area plan, it has tabled the applicant’s request so it could work within the concept of the small area plan; and inquired if that is what Mr. Nohrr would like the Board to do or would he prefer it take other action; with Mr. Nohrr responding yes. Commissioner Scarborough stated there is no 2005 calendar; and they are tabling items to December 2004 knowing that things may not be ready. Mr. Nohrr stated he would be shocked if the small area study was ready in December; but it can be addressed at that time, although he will not be present.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to table Item IV.B.4 to December 2, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Chair Higgs stated when the Board was discussing the deputies and those issues, Commissioner Scarborough mentioned a report; the Board has a one-page report; and inquired if it would like to request a full analysis by staff so it can deal with the issue. Commissioner Scarborough stated the whole issue is sleeping; he has received calls about transportation; the County is levying 30.5% of what the consultant recommended for transportation; and recommended putting all eggs on the table so it can have a holistic concept to talk about. He stated it is where three Commissioners feel is right; but by the same token it helps him to come prepared to have an informed dialogue; and then he can vote consistently and not give mixed signals. Chair Higgs stated that is fine; she thought the Board was going to get a report; and it needs to clarify about the report.

Commissioner Carlson inquired is the report going to come back with the ways the Board has treated school capacity; and stated the Board needs to know what the flow chart looks like because if it is sending mixed signals to the community, it needs to clarify so it can be consistent and everyone knows what the game plan is. She stated she commented before that there are school impact fees, but they have not been collected yet because of the hurricanes; the idea was to collect them on new growth; but the capacity problems that exist because they were not collected in the past still are there and cannot be covered by the new school impact fees; and that is the inconsistency the Board is showing to the community.

Commissioner Scarborough stated there are different types of inconsistency; each Commissioner is ultimately responsible for him or herself for clear thoughts; and maybe he and Commissioner Carlson voted differently each time, but if each has consistency based on one’s thought process, that is okay. He stated the consistency is five individual consistencies; and in coming to these consistencies, he would like to understand the thought processes of his fellow Commissioners to see if he is flawed rather than coming out three months later and shifting. He stated if the Board has the conversation, everyone will know where he is going to be voting and he will know how other Commissioners are going to vote; and pretty soon the audience will know where each Commissioner is going on a consistent basis.

Chair Higgs stated Commissioner Pritchard raised the issue of throwing in city municipal police officers in the County’s Comprehensive Plan, which does not work; and requested staff analyze that and provide a report.

Commissioner Scarborough stated he would like to have the item placed on the agenda at the meeting following Tuesday’s Commission meeting and have reports on Chair Higgs’ item; and apparently Commissioner Carlson wants to bring school capacity issues back up.

Commissioner Carlson stated when the issue was brought up where there was a concern about allowing developers to come in and density issues were a question, the Board allowed them to pay a certain amount because that is what the impact fee study said; and the Board agreed that was flawed and needed discussion. She stated they are looking at new growth and existing problems; they cannot fix the existing problems with the new growth money; and that is the drum the Board has to beat and be very consistent. She stated she is glad the Board directed staff to prepare a small area plan for the last item because she would have supported denial because of the comments of the School Board representative at the P&Z meeting.

Commissioner Scarborough inquired if the Board would have a problem discussing the full issue; stated he had calls to his office from people mentioning that transportation is at 30.5% of the recommendation; and he does not want to walk through meetings and have new issues brought up. He stated it is much easier if they put all the issues on the table and have a discussion.

Commissioner Pritchard stated the Board should address every impact fee it has, which is currently two. Chair Higgs advised there are several including library and criminal justice. Commissioner Carlson noted there are impact fees that can be assessed but the Board does not. Commissioner Colon stated the Board will discuss this on October 26, 2004.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to direct staff to provide a full report to the Board on October 26, 2004 concerning the impact fees and the level of services in the Comprehensive Plan, and any item the Commissioners feel should weigh in their decisions on residential density increases. Motion carried and ordered unanimously.

Item IV.B.5. (Z0409401) Tracy Keller’s request for change from RR-1 to AU on 3.52 acres located on the west side of Harlock Road, north of Parkway Drive, which was recommended for approval by the P&Z Board.

Tracy Keller stated she bought the property at 3330 Harlock Road a little less than five months ago; her plan after buying the property was for her horses, to build a new barn, and to be able to give lessons; that is something she has done since she was eight years old; and she has ridden in rodeos. She stated she has quite a few young people she gives lesson to; the joke at the P&Z meeting was that she needed the zoning for the goats; but she cannot legally give lessons on RR-1 property and it would have to be zoned agriculture. She stated since she acquired the property, she has done nothing but make improvements to it; two days after acquiring it, she ripped out all the chicken coops and pigpens that were there from the previous owner; and she has plans to build a new barn after she tears down the existing barn in front of her house that most of her neighbors say is an eyesore. She stated before going to the Planning and Zoning meeting, she talked to her neighbor who is adjacent and adjoining her property to the south, Ben Donhoff, who had no opposition when she told him her plans and why she was doing it; and he was just happy she had ripped out all the chicken coops that were next to his house. She stated she also spoke to her neighbor to the north, Daniel Delade, who brought her a letter last night, which Commissioner Carlson has in her possession. She stated Mr. Delade has no opposition to the rezoning; and they had a long discussion last night about what she is proposing to do. She stated to her east is Harlock Road and she abuts I-95 so both of her adjoining and adjacent neighbors have no problem with this. She stated three-tenths of a mile down the road Mr. Westcott owns 5.32 acres that are zoned agricultural; Mr. Conners owns 2.5 acres that are zoned agriculture and are four-tenths of a mile from her property; and Paula Haderle who lives on El Dorado Way has 2.5 acres zoned agriculture. She stated she understands her immediate neighbors are RR-1; but she cannot do what she plans to do on RR-1 property. She advised she was not aware of that until she went to Planning and Zoning about having the barn built; she discussed what she was going to do; and she was told it had to be zoned agriculture to be able to give lessons legally. She stated she knows there are people on the road who give lessons, but that is their business; and advised her proposals and plans are available. She stated the problem that has come since she took possession of the property is that she started dating a gentleman who owns Manicure America Landscaping; during the hurricanes he lost his shop; and everything he could salvage, he put in her garage. She stated since then he has parked some of his vehicles in front of her pasture; and that is where a lot of the misunderstanding is coming from. She stated she has one neighbor who has taken it upon himself to write letters to everybody; obviously he assumed that what she is going to do with the property is commercial; and he is misleading some of her other neighbors into believing that she wants to commercially zone the property and have a nursery to grow trees. She stated the letter said “they” have a business; but there is no they, there is only a she and a he; and she has no interest in growing trees on her property. Ms. Keller stated she wants the property for the horses; and there is no commercial business going in. She stated another thing that was brought up was that there was going to be high traffic in a neighborhood with children; children are who she gives her lessons to; she has a young lady who is also going to be with her who has her license to help the physically handicapped; and that lady gives lessons to a young man with cerebral palsy. She stated she has high regard for children because that is who she teaches; and she is a lifetime member of the American Quarter Horse Association, the Florida Junior Rodeo Association, and the Florida High School Rodeo Association.

Commissioner Colon stated she is always concerned when a residential area is being turned into a business; Ms. Keller is saying it is not a business; but she is going to get paid. She stated the Board has been down this road before; and inquired how many horses is Ms. Keller talking about. She stated when one starts a business, it means more people coming into the area and more traffic; and that is where the discrepancy is. She stated she is hearing that Ms. Keller is planning a business or is doing it already; and she would like to know how many horses and how big the barn will be. She stated even if it is rezoned to agricultural, it is allowing something that changes the integrity of the neighborhood; and that is always the Board’s concern, so she would appreciate Ms. Keller elaborating a little. Ms. Keller responded the plan is for an eight-stall indoor barn made of concrete; so she would never have more than eight horses at one time because there would only be room for eight. She stated that is what she has done all her life; she put herself through college on a rodeo scholarship; and while she gives lessons, it is not the biggest part of her income. She stated most of her income is from the colts she buys that she trains and resells; four or five young ladies come for lessons now; and Ms. Foley is going to have a couple of handicapped children she will be giving lessons to. She stated in terms of high traffic, it is not going to be an every day in and out business or high traffic area; and it will be no more than what is going in and out of her house now.

George Kanazeh stated he got three neighbors to sign a petition to oppose the zoning change. He stated he would like to comment about his neighbor who is about two acres away; there was no friendship in the past, but he has known the man for several years; and he has lived on the street since 1979 as he likes the lifestyle of the countryside. He stated they are already zoned for horses; Ms. Keller wants to raise horses and teach children how to rodeo and ride; but she could always take them to Wickham Park to teach them and some people ride in the street. He stated the area is horse country; there is no reason to change the zoning; and changing the zoning will affect his property by depreciating it. He stated it is going to be high traffic; and he is sure the Board has seen the pictures of the Manicure America trucks with a backhoe in the back of a flatbed, trailers for transport, and other big trucks. He stated he would like to have some cattle and some pigs, but who would take care of the smell. He inquired what is going to be done with the horse manure, the smell, the mosquitoes, the bugs that come in, and the goats that make noise. He stated a man who worked for the Cocoa Beach Fire department used to own the property; and he never saw or heard of a chicken even though the property is within 500 feet of his property. Mr. Kanazeh stated the man did have a bad stable right in front of the house; but that is what he could afford; and they did not complain. He stated he does not care to have his property depreciated because of someone else’s interest in making money off her property; Ms. Keller bought the property for $357,000; but a neighbor paid $470,000 for one house while Ms. Keller got extra land besides the house for $357,000. He stated he does not see the reason to change the zoning to accommodate Ms. Keller; she already has the right to have horses on the property; and the zoning does not do anything but depreciate the nearby properties. He stated after the rezoning, Ms. Keller will pay less taxes; someone will have to make up the difference; and requested the Board reject the change in zoning because it would make his lifestyle miserable. He stated he has grandchildren; he likes horses; and he can go to Wickham Park to see the horses there. He reiterated his request for the Board to not approve the rezoning.

Jason Sauriol stated he lives with Ms. Keller on the property; and he is here on her behalf because he was not at the Planning and Zoning meeting, but wishes he had been. He stated the neighbors had taken pictures of his equipment and trucks that were in front of Ms. Keller’s house; after the first hurricane came through he lots approximately a third of his shop on his property; and he temporarily was parking some trucks at Ms. Keller’s property and had moved everything he owned into a more secure location in one of her garages. He stated the second hurricane can through and pretty much wiped out his full garage; the zoning has nothing to do with his business; and the trucks were only there temporarily. He stated he told Ms. Keller he did not want to cause her trouble where she could not get the zoning that she wants just because a hurricane ripped his garage down; that has nothing to do with Ms. Keller; and he made it clear that he would not park the vehicles at her property and would do his best to keep everything having to do with his business away from the house. He advised that is everything but what is in the garage until he can get another location to move those things out; he has been working long days with FEMA to do cleanup for area residents; and as soon as that is over, he will be happy to move his things out of the garage. He stated that way there will be no problem as far as whether this is going to be the Manicure America business or whether it is going to go commercial; and he wants people to know it has nothing to do with that as Ms. Keller is doing this for herself. He stated if the neighbors had questions, they could have asked them; and commented on not alienating neighbors and communicating better. He stated it is bad when people assume something is going to happen; and if someone had a problem, they should have come to Ms. Keller.

Rhoda Dooley-Klahne stated she lives across the street from the property in question; and she would like the Board to deny the change in zoning. She stated Harlock Road and the surrounding area has homes starting at $300,000; it is very much in demand as a residential area; and it should remain a residential area to protect the values of the property. He stated the area is already zoned to house a significant number of horses for personal use; and she sees no reason to change or downgrade the zoning. She stated a neighborhood is not suitable to run a business; and she is especially concerned about the vehicles that were parked in the street due to the hurricane. She stated the hurricane caused a lot of damage to everyone’s property her house was damaged too; but the commercial vehicles and heavy equipment have been parked on the roadside since Ms. Keller took possession of the property, and it is not something that has just been since the hurricane. Ms. Dooley-Klahne stated their driveway is across from Ms. Keller’s driveway so they get to see the vehicles every day; there are multiple vehicles parked on the property; and giving lessons and running a business out of the house will just bring more parking on the street, which is not good for the neighborhood. She stated she has not seen too many improvements on the property; she does see a lot of parked trailers and trucks; she does not see any other reason to downgrade the zoning except to run a business; and Harlock Road is not suitable for a business as it is a nice residential area.

Richard Klahne stated promoting good neighbors does not mean he received a card in the mail that Ms. Keller wants a zoning change; and a simple walk across the street to explain what she wanted to do with the property would have worked better. He stated he does not see the necessity for the rezoning; the only thing they are going to do is create a big dust cloud when they are riding horses in an arena, which is what the proposal is; and they are going to create more traffic, which they do not need. He stated the property was a farm 30 years ago; the zoning was changed to residential; and recommended going forward not backward. He stated they have nice properties; they would like to keep them; and anybody who spends the kind of money that Ms. Keller spent without investigating to see if she could actually do the business she wanted should not have the whole road changed. He stated the Board should reject this.

Anne Hodges stated she lives directly across the street from the property in question; Harlock Road is a residential neighborhood; and they do not want any of the potential commercial uses, which would be allowable under this zoning. She stated she has a partial petition signed by other surrounding neighbors; another neighbor who was at the Zoning meeting could not be present due to a medical emergency, but he has another full page of the petition. She stated they never met Ms. Keller until the P&Z meeting; and they knew nothing of her plans and to this day, still do not. She stated at the September 20, 2004 hearing Ms. Keller stated she applied for the rezoning because she wants to bring in four more horses, for a total of seven; she also said she is involved in barrel racing and participates in rodeos as well as teaching a couple of young girls to ride; and none of that bothers the neighbors. She stated they have no objections to horses, goats, or little girls learning a sport; under RR-1, Ms. Keller is allowed four horses per acre; and that equates to 14 horses over her small 3.52 acres; and inquired why she needs to change. She stated while the P&Z Board did recommend approval at the initial September 20 hearing, one Board member had the same concern the neighbors do, that all 2.5 miles of Harlock Road is RR-1 and changing one property to AU will set a precedent and open the doors for other incompatible permitted uses. She requested the Board vote no.

Ms. Keller stated one of the comments was that the change would depreciate the value of the property; but in fact, she is doing nothing but appreciating the value of the property. She stated she is proposing to build a new barn, knock down the one they call the eyesore; and that will appreciate the value of the property. She stated as far as all the trailers being talked about, she has one horse trailer; and as far as the proposal to go to Wickham Park, it is closed. She stated there are multiple vehicles parked in her driveway; she has two roommates; and she is pretty sure she is allowed to do that. She stated as far as the manure, she has plans with Mr. Platt on US 192 to take it to his cattle ranch, put it in a spreader, and spread it; and she has another gentleman in Malabar who wants it for fertilizer, so she does not have any problem getting rid of it. She noted she does not want it in her backyard either. She stated there are different oppositions, but it boils down to the commercial aspect of it; and there is no commercial aspect of it. Ms. Keller stated Mr. Sauriol has said as soon as he is not working seven days a week, he is going to find another place; she is not making anything commercial; and she just wants to be able to train her colts, do what she has always done, and give lessons. She stated she does not understand why there is such a problem with that, although she does understand some of the concerns; but she has tried to make it cut and dry as to what her intentions are.

Commissioner Carlson stated based on Ms. Keller’s discussion, she has three RR-1 pieces of property that she wants to change to AU, but only one home there; and she has four horses and wants to build a stable for eight horses. She inquired if Ms. Keller can do that; with Mr. Enos responding yes, under RR-1, she could have 14 horses or four horses per acre and could also build a barn; but the key difference is that under RR-1, the horses are accessory to the residential use and for personal, non-business use only; and under agricultural zoning, more business type uses open up. Mr. Enos stated one can treat agricultural operations as a business operation; but under RR-1, it is not allowed, for example, to give riding lessons because customers would be coming; and AU zoning is needed for that. He stated the other reason for AU was for the goats; one cannot have goats in RR-1; but that was a secondary issue. Commissioner Carlson inquired if breeding horses would be considered a business; with Mr. Enos responding yes, that would be raising animals, which would require agricultural zoning. Commissioner Carlson stated she met with Ms. Keller in her office; and she sympathizes with her plight. She stated she told Ms. Keller that historically when they try to insert zoning into areas that are established in certain ways, it is hard to overcome that; and based on what she has heard from the residents, there are more than a couple of people opposed. She stated she does not see any way around not denying it, which is a shame because this is what Ms. Keller has always done; and she appreciates that she would like to be able to do her business; but that would be difficult in this particular area.

Ms. Keller stated at the P&Z meeting, she was asked about an addendum. Commissioner Carlson inquired if Ms. Keller is referring to a binding development plan. Ms. Keller stated she was asked if she was willing to put an addendum on the zoning where it would be nothing but horses and goats; and she does not know if that is still an issue that is open.

Commissioner Carlson stated it might still be open if there was no opposition; but the neighbors have come forward in opposition; this is an area that has been RR-1; and she knows there are people who are misusing the zoning category by giving lessons. She stated the way the Board does business is to assume the best; so as far as the binding development plan, the issue is that Ms. Keller needs AU and once she has AU, she would have the potential of other types of uses. She stated there is a paranoia of others that are living in the area; it has nothing to do with Ms. Keller and does not reflect on her friend who is storing his equipment because that is only a temporary thing; but with all that said, she is going to have to move to deny.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to deny Item IV.B.5.

Chair Higgs stated there are some real incompatibilities between AU and RR-1; and based on those incompatibilities, she will support the motion.

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

Item IV.B.6. (Z0409402) Bruce Edwards and Donna Joy Skinner-Edwards, Co-trustees’ request for CUP for Alcoholic Beverages for On-premises Consumption in BU-1 zone on 1.04 acres located on the west side of South Patrick Drive, south of Tortoise View Drive, which was recommended for approval by the P&Z Board as accessory to fraternal organization only.

Ron Patterson, representing Moose Lodge 2367 of Satellite Beach, stated at their current location at Shopper’s World after 14 years, they are being forced out; there will be something else going in there; but they have a building that he is seeking a CUP for. He stated their fraternity is a private membership; they are not bringing in people off the street; and they support the communities, seniors, and children. He stated they have a facility on 1,200 acres in Chicago where they bring in children from infants to teenagers; and those children can graduate with a very good standing of getting a job. He advised they have a facility in Jacksonville that supports seniors in assisted living; and when the assisted living cannot be handled any more, there is a life care center on the property for them. He advised they are volunteers; all the money that goes to these locations comes from their benefit dinners and endowment funds; and it goes to Moose International where it is divided up between the two facilities. He stated they are not in a great situation; they just went through two hurricanes and suffered severe damage to the recent lodge; and they are not getting support from the investors; but they have members who came down and made do to keep the lodge open to continue to make money to support the communities. He stated they support the Police Athletic League of Satellite Beach; they have raised over $3,000 for them over two years doing chicken fry events; and they volunteer with Boy Scout Troop 321 of Indian Harbour Beach as well as contributing to Serene Harbor for battered women. He stated they are hoping to get approval for the conditional use permit.

Henry Lorenzen stated his property is directly behind the building the Moose Lodge is looking to move into; and he could bring up every argument the last 40 people did with the CUP application; but he does not think he needs to go there because the Board heard them all. He stated the Moose Lodge is looking to change a general retail commercial zoning into a place where they can serve alcohol; and basically what he is looking at is finances and property values. He stated he purchased his home about five months ago; he spent a substantial amount of money on the home; and the property abuts the property in question. He stated one of the issues with a zoning change like this is the property values and the impact to property values; and any kind of liquor license in an establishment close to a residential neighborhood would impact it significantly. He stated he purchased the house knowing that it was a commercial property behind it; but the existing property has real estate offices, a center for Alzheimer’s patients, a church down the street, gas station, tire center, nail salon, and hair shop; and he does not think that a bar would be a compatible neighbor in that location.

Mr. Patterson stated the building was established in 1961; it has been vacant since last July; and he does not know about property values because they do nothing but improve the buildings they have been in, which is only one. He stated the property was Hub’s Pub, which was a bar and restaurant; it has been the House of Ing, a Chinese restaurant with a liquor license; and it has been the 16th Amendment, a bar and restaurant. He stated they are not a bar and restaurant; they are a fraternal organization that supports the community; and they would welcome Mr. Lorenzen and his family as they are for children and seniors.

Commissioner Scarborough inquired if there is a record of previous alcoholic beverage licenses; with Zoning Official Rick Enos responding yes. Mr. Enos advised there was an old beer and wine permit approve on the property in 1961; and there is another one in 1966; but that was before the conditional use permit for alcohol was established in the 1970’s, so those would have been nonconforming uses that have at some point in the past expired or lost their nonconforming status by being abandoned so any re-establishment would require a conditional use permit. Commissioner Scarborough inquired when was the last time alcoholic beverages were served at the location; with Mr. Enos responding he does not know. Chair Higgs inquired if it has not had a CUP for some years; with Mr. Enos responding his guess is that it has never had a CUP but had the predecessor, which was the Special Use Permit (SUP).

Mr. Patterson stated he is not sure of the exact dates; but he thinks it was in the late 1980’s or early 1990’s when the House of Ing was there, which was a restaurant with full liquor; and after that it was the Hub’s Pub, which offered sandwiches and a full bar. He stated he is not familiar with the CUP permit in the past; all he knows is when the Lodge tried to purchase the building, it was approached by the liquor license people; and in order to transfer the license, it must have a conditional use permit, which is when the Moose Lodge made its application.

Commissioner Pritchard inquired when it was Hub’s Pub, did it have a CUP; with Mr. Enos responding it probably had a nonconforming use based on an old permit the Board issued in 1966; and it probably became nonconforming in the early 1970’s and was maintained for many years, so did not lose its nonconforming status until the use was abandoned. Commissioner Pritchard inquired if the owner lost the nonconforming status; with Mr. Enos responding yes, it would be the owner of the building through whatever tenants he may have had at the time. Commissioner Pritchard inquired if the nonconforming status just continued with the owner of the building; with Mr. Enos responding that is correct. Commissioner Pritchard stated it is the sale of the building that is triggering the requirement for the CUP; with Mr. Enos responding he does not necessarily think it would have been the sale; however, the use would have been abandoned at some point and may or may not have included a transfer of title. Commissioner Pritchard inquired when would the use have been abandoned; with Mr. Enos responding he does not know when it was abandoned, but knows it was abandoned. Commissioner Pritchard inquired if Mr. Enos means the building was vacant; with Mr. Enos responding no, the alcohol use had stopped for a period exceeding six months for whatever reason. Mr. Patterson stated the reason the CUP is requested in this situation is because the building has been vacant since last July; and at that time it was the Academy of School, which lasted less than a year. Commissioner Pritchard stated it went for a year without having alcohol on premises; with Mr. Patterson responding that is correct.

Commissioner Scarborough inquired what was the name of the group that was there before; with Mr. Patterson responding it was the Academy of School. Commissioner Scarborough inquired if it served alcohol; with Mr. Patterson responding no. Commissioner Scarborough inquired before the Academy of School, who was there; with Mr. Patterson responding it was a small car dealer who was only there for three months. Commissioner Scarborough stated that business would not have served alcoholic beverages; with Mr. Patterson responding that is correct. Commissioner Scarborough inquired before him, who would have been there; with Mr. Patterson responding the House of Ing, which did serve alcohol.

Commissioner Carlson stated the only difference between this item and the other item, other than not having as many folks complaining about compatibility is that South Patrick Drive is the main access, so there is not a single road that the people have to traverse to get into and out of the neighborhood and pass by the facility with the liquor license; and inquired if there is a wall that goes around the entire property to the south and west. Mr. Patterson responded yes, it was probably established in 1961 as a buffer wall between where the gentleman lives and the business; it is only five feet and should be six feet; but a member of the P&Z Board said if they added another course of block with rebar it would just be another missile for a hurricane to blow into somebody’s yard. He stated they are not grandfathered into the liquor license but they were allowed to be grandfathered into the buffer wall. Commissioner Carlson stated the staff report suggested looking at additional buffering and screening mechanisms; and she does not know if she agrees with the missile launching of additional block; but she would move for approval with the condition that the buffering be improved along the wall with an opaque vegetative buffer before it is actually approved.

Motion by Commissioner Carlson, to approve Item IV.B.6, with the condition that there be an opaque vegetative buffer along the wall prior to the approval being effective.

Commissioner Scarborough inquired about hours of operation; with Mr. Patterson responding the hours of operation are Monday through Saturday from noon to midnight and on Sunday from 1:00 p.m. to midnight. Commissioner Carlson stated it says on Friday and Saturday from noon to 1:00 a.m. Mr. Patterson advised that would be when they have functions; they are still within the State law of closing before 2:00 a.m.; but for the purposes of sending paperwork to International, the normal operating hours are Monday through Saturday only through midnight; and they would probably only have 12 cars although they have 85 to 87 parking spaces and for functions they would have 70 to 75 cars.

Chair Higgs inquired if the condition is that there would be an opaque vegetative buffer installed before opening; with Commissioner Carlson responding yes, along the walls west and south prior to opening. Commissioner Pritchard inquired what is wrong with another course of block. Commissioner Carlson stated the Board can consider all the possibilities, but that is her motion. Mr. Enos inquired if that includes the P&Z recommendation, which was limiting the CUP as accessory to the fraternal organization only.

Commissioner Pritchard stated Tortoise View Drive is a little north of this property; there are a couple of businesses that separate the two; and he has nothing against the Moose and was a member for about a year. He stated there was an issue earlier regarding a conditional use permit; this property is on South Patrick Drive; there is a way in and out of it; there are houses that abut it; and the gentleman expressed concern about the alcohol. He stated there may be loud motorcycles or maybe all of the things that came up earlier in discussion could be happening; at the Moose Lodge in North Merritt Island, when there is a function, there are tons of cars there, some parking on Courtenay Parkway; and he is wondering how the Board can separate the discussion it had earlier dealing with the CUP for the billiard parlor because the neighbors were concerned from this item, which is a CUP on a main road with a neighborhood abutting, and not use the same arguments to say no.

Commissioner Carlson stated the difference is there was not anything existing at the other one; and this one has a history of acceptance; but she is not sure that is a good enough argument for compatibility purposes.

Commissioner Pritchard stated that gets him back to the other side of the argument he had earlier; it was a bar, a restaurant, and a variety of uses that served alcohol; yet the Board does not seem to have any problem with alcohol being served and neighborhood children and all of the concerns it had with the other argument.

Chair Higgs noted there was no second to the motion. Motion died for lack of a second.

Commissioner Scarborough stated the Board went back to the school and car dealer uses; then it went back to the House of Ing, which served alcohol; and there is something different about having alcoholic beverages at a Chinese restaurant and having it at the Fraternal Order of Moose, where there is a more prolonged drinking period and more camaraderie going on than there would be with someone having dinner and then leaving, so there are some differences. He stated he has a hard time connecting something in the recent past that is going to make sense; and that is why he could not support Commissioner Carlson’s motion.

Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to deny Item IV.B.6. Motion carried and ordered unanimously.

Commissioner Pritchard inquired where is the Board going with the issue; stated he does not want to become Carrie Nation; he does not want to start taking a position that is anti-alcohol or looking for the right place to have the right function; and inquired how is the Board going to overcome the slippery slope it is on.

Commissioner Scarborough stated the Board would have to go back and change the criteria; the criteria demands that the applicant show a degree of compatibility; and when there is residential abutting an establishment with alcohol that is going to be open to midnight, there are
many people who do not think their homes should abut that type of thing. He stated most restaurants are washing their dishes and closing up on weeknights at 10:00 p.m.; and at that time it is fairly quiet, so it is substantially different than what the Board has been talking about.

Item IV.B.7. (Z0409403) Mohamed Shaker, Trustee and Farouk and Olfet Agrama’s request for change from RA-2-8 with existing BSP to all BU-1-A and EA with removal of BSP on portion zoned RA-2-8 of 5.02 acres located on the east side of US 1, north of Rockledge Drive, which was recommended for approval by the P&Z Board.

Attorney Richard Evans, representing Dr. Chris and Judy Edwards, stated Dr. Edwards is a dentist who has an office in Viera; the Edwards are the owners of the property; and Mr. Shaker was the original owner, but the property sale has now closed and changed hands. He stated the property in question is approximately five acres; it is currently zoned RA-2-8; and they are proposing BU-1-A, which is neighborhood commercial. He stated the Planning and Zoning Board approved the request unanimously; and staff comments indicate that it meets the Future Land Use Map and qualifies as commercial infill classification. He advised they met with all of the Commissioners; the property is on a major artery, US 1; and there are similar zoning classifications surrounding the area. He stated the owners’ plans are to develop the property as a low impact, environmentally responsible professional office park; and all Commissioners have seen the conceptual plan. He stated with him today are the Director of Design and the owners to answer any questions; and they hope the Board will approve the request for rezoning so they will be able to construct a nice facility that the community and County can be proud of.

Ron Hand, Director of Design for the Community Greenhouse Foundation, stated he is here to support the applicants and answer any questions the Board may have.

Dr. Chris Edwards stated he is a dentist in Viera; he and his wife Judith purchased the property and were excited about bringing to the County the first sustainable green development that follows the guidelines of the United States Green Building Council; and this is a trend the whole country needs to see happen where land is developed in a smart way that protects the future. He stated they have aligned themselves with the Community Greenhouse Foundation, of which Mr. Hand and Mr. Evans are a part; and they look forward to showcasing this property as a model of development in the County. He stated the zoning change is appropriate for the use; and if the Board is looking to decrease residential, this makes sense.

Barbara Matherne, representing the Stonebridge Homeowners Association, stated she represents the community of eleven homeowners; they are not opposed to the change in zoning; however, they are looking for three things. She stated they are concerned with security for access to their property from the Edwards’ property; and they want some privacy and noise control buffer. She stated nothing they are asking for is unusual; and it is all per the Brevard County Code, on which she has done extensive research. She stated the problem with the property is that it is 606 linear feet; on the north end there is probably 80 feet that is non-wetlands; on the south is approximately 110 feet of non-wetlands; and the remainder is wetland
according to a survey done by Campbell of Merritt Island. She stated Code requires a six-foot masonry wall between residential and commercial to divide them; and the problem is putting the fence through the wetlands. She stated the north and south ends that are not wetlands require the six-foot masonry wall; there is no question on that as it is in the Code; and they are not asking for the wetlands to be disturbed; but they have done some research as well as talking to staff in the Land Development office. She stated there have been times when things were put through wetlands; but they cannot be put through because it is not possible to put a continuous footer; so the masonry wall is out. She stated they are open to looking at other fencing systems that look like masonry but could go through the wetland areas; and if it was a good looking fence and the County approved it, it could also be used not only in this application, but for other uses. She stated they could possibly accept running a continuous fence the whole length of the property and not have to put up the masonry wall; and it would be contiguous and look like a masonry wall. She stated first all non-native plants will have to be removed; but when it is cleared, it will be a window to their development straight to US 1. She stated the conceptual plan is lovely and they are impressed and happy with it; on the rear of the property they want something that would deter anyone from visiting their property; this is not a strip type mall development, but a building here, a building there, parking spaces, and a lot of greenery; and they want the security of no one being able to break in somewhere and get onto their property, and go back to the Edwards’ property or disappear into Rockledge Drive, which is the entrance to their property. She stated the first thing they are requesting is the fence across the back; and the second thing is that the 25% of tree canopy that is supposed to be conserved be to the back of the property. She stated the third thing they are asking is also a requirement; and it is for a 20-foot planted buffer across the back of the property. She stated there are wetlands and non-wetlands; and they are asking in the non-wetland area for there to be trees. She stated she knows there is a point system for trees; and they are requesting the same thing be done in the wetland with wetland native product. She stated those are the three things they are asking for; they are not fighting this as commercial or fighting the developer; but they need the three things, and the fence is key.

Commissioner Colon inquired if Ms. Matherne had an opportunity to give feedback to the owners. Ms. Matherne stated they came to the Planning and Zoning meeting on the 20th; at that point they were given a conceptual drawing; and in discussion in the hall afterward, they talked about the six-foot fence. Commissioner Colon inquired if there is agreement on any of the three items by both parties. Ms. Matherne responded in general conversation in the parking lot, Mr. Evans advised he had talked to the owner because the owner was concerned that the homeowners were going to ask for the item to be tabled and ask that it go for binding site plan; a binding site plan would be a nightmare for the applicants; and they would have to start all over and do all kinds of things. Ms. Matherne advised they do not want to inconvenience the owners; they just want to have them make some kind of promise; and having them say something is not a binding agreement. Commissioner Colon stated she wants to know if there is an agreement between both sides, whether verbal or not so the Board can make sure it is in writing. She stated she wants to know if there was discussion, because if there was, and the applicants agreed, then the Board can proceed. Ms. Matherne stated all they want is some kind of formal agreement.

Cressie Murphy-David stated she lives on Stonebridge Drive; and her concern is security. She stated her property is the last lot at the north end of the property; there is a set of driveways or parking lots on the proposed plan; and she has a couple of questions. She inquired what type of retail will be in the space; stated it will not all be just dentists’ offices; and there are two buildings. She stated she is not sure how the layout on the plan is going to direct traffic back and forth between the two buildings; and the parking lot is directly behind her house so she is also worried about security. She stated she is new; she has only been here one year; and they spent a lot of money to buy in an area they thought was unique; but she is worried that without the all and tree canopy, they are going to lose the value of their homes. She stated there are people on the block now who are trying to sell; and she is sure if new buyers knew of this plan to build, the value of the houses would go down. She stated she has a lot of land to the side of her house, but not a lot behind her house; there is a border retention pond, 20 feet, and then she will be looking at the back of their building; and it will be a two story building, so it is not like she will not see it. She stated they have lost a lot of the tree line already from the hurricanes; and she can now see US 1 and the trains go by. She stated she will go with her homeowners association; she is not necessarily against the dentist office; it is better than a CUP; but she wants the applicants to remember that the value of their houses is important. She stated they are right by the Indian River; that is their selling point; and whatever the applicants do there, she wants it to work for everyone. She stated the fence Ms. Matherne is suggesting sounds logical; she can accept that; and also she supports additional trees replacing the Brazilian pepper trees.

Commissioner Scarborough requested Ms. Murphy-David point out her lot; with Ms. Murphy-David pointing out the lot on the map. Commissioner Scarborough stated one of the things he noticed was the proximity of the north building, which would be closest to Ms. Murphy-David; and inquired if it is mandatory that the building be that close. He stated it is a two-story building; and there is not much of a wetland buffer where Ms. Murphy-David is, so it does impact her to a greater extent than it does some of the other neighbors. Ms. Murphy-David stated by law it is supposed to have a solid wall; but it is close to the wetlands where the wall would end; so someone could walk right out of the parking lot, take a couple of steps in the mud, and be into her yard. She advised the back of her solarium is only two or three feet from the river’s edge so she does not have a lot of backyard; and her worry is someone will enter her yard. Commissioner Scarborough stated the Board has talked a lot of times about the dynamics of the wall; if there is a two-story building, it far exceeds the six-foot wall, so if there is a six-foot wall against a two-story building, it is going to be possible to see the majority of the building; but as the two-story building is moved farther away from the wall, there is more of a visual buffer; and it is a matter of privacy. He stated they do not know who will be on the second floor; but they will be having visual intrusion into Ms. Murphy-David’s privacy.

Commissioner Carlson stated in the discussion in her office it sounded like a very good project; and she is impressed with the organization trying to make sustainable projects work in the community and be compatible with other parts of the community. She stated the first speaker talked about the fencing and the wetland issue; she knows the Board dealt with this with Via Tuscany a long time ago when it was built off Wickham Road; there was a big wetland and they tried to figure it out; and she is not sure what kind of fencing was used, but believes it was a
green chain link fence that connected walls or something like that. She stated she is not sure what Ms. Matherne is talking about in terms of the particular product.

Mr. Evans stated he went to see the product and told them he would be happy to bring it back and look at it; the reality is it will be up to staff and not them whether they can put anything in the wetland; and if they can, they would be more than happy to put some kind of wall or fence there. He stated Mr. Hand calculated the average distance on the buffer zone; the smallest portion of the buffer zone from the rear of the property from the wetlands is 50 feet; and that far exceeds the required buffer on the residential side. He noted at some point it is over 125 feet; the trees in the wetland are very mature and tall, higher than two stories, and they are very thick; so it is a very large buffer zone.

Chair Higgs inquired what species are there. Commissioner Carlson stated if there are species that are not endemic, there is a problem. Mr. Evans stated the exotics need to come out; but the technical people are the ones that decide that. Chair Higgs inquired if somebody did the survey could they not tell that; with Mr. Evans responding the survey has the trees on it. Commissioner Carlson inquired if it is a tree survey; with Mr. Evans responding it is a full survey with everything on it.

John Campbell stated he did the survey; it has the tree diameters, elevations, and the utility information; it is a full engineering survey for development purposes; and if he could look at the survey, he could show the various trees on it. Chair Higgs inquired if they are trees that are going to have to be removed; with Sherry Williams of Natural Resources responding the survey only identifies native species. Mr. Campbell stated he did not locate melaleuca or Brazilian pepper trees in doing the tree survey because they have no value.

Commissioner Carlson stated the intent is to have a significant buffer so what folks are concerned about seeing cannot be seen; obviously the Board does not know what it really looked like before the hurricanes so that aspect is not the applicants’ responsibility; but they are trying to provide a significant buffer to the woman on the north end. She stated the wall plus some additional tree buffering would be what she would expect; she does not know if the 25% tree canopy can be designated to one spot or another because that may take away from the overall plan; and inquired if they can be given credit for canopy preservation, noting the wetland is forested so it could count in the 25%. Mr. Evans stated over 72 trees are on there; they are going to exceed the canopy requirement; it is a forested wetland so it is very thick; any exotics on the lower side have to come out; and they have consulted with local plant experts and identified six or seven native species that grow fast, thick, and tall to replace the trees in that area to increase the buffer as much as possible. Commissioner Carlson stated another issue is the wall; they have to identify what kind of wall there can be; and inquired if the applicant has no problem putting in whatever kind of wall they can agree to in terms of land development. She stated they cannot put a cement wall in a wetland; but if there is something that can be utilized in lieu of it that will meet the Building Code, they will do that; and that would be her expectation. Chair Higgs inquired if they can get a binding development plan to come back to the Board; with Commissioner Carlson responding they could do that.

Commissioner Scarborough stated Mr. Enos brought up the fact that if all they want is a professional office, they could have RP zoning, which would restrict the usage; one of the things that came up was other types of usage; and inquired would the applicant find RP acceptable; with Mr. Evans responding yes, that was one of the options. Commissioner Scarborough stated that is fine; and when he met with the applicant, there seemed to be some flexibility in moving the north building further to the west so it would not be towering over the neighborhood so much. He stated some of the trees to the north are palms although there are a few oaks; but they are going to be scattered and not a complete buffer. He stated it will take a long time to have trees that will hide a two-story building; and it is hard to find a species that will grow higher than a two-story building while anyone present is still alive.

Commissioner Carlson stated the binding development plan could include additional setback to the north building. Commissioner Scarborough stated he is not going to try to come up with a number today; but there seemed to be a willingness. Commissioner Carlson stated the applicants need to assess their plan. Commissioner Scarborough stated they said it was not a site problem and could be handled; the people who would be parking would have a more aesthetically pleasing area; and this is creative. He stated there is a walkway between the two areas; and it may give that more of a green environment as opposed to be crowded by a building. He stated the concept of bringing more plant material becomes enhanced because there is more room to plant the plant material that would further buffer and give the green environment; and inquired what is the semi-circular area; with Mr. Evans responding conceptually at this point, it is a grassed amphitheater. Commissioner Carlson stated they could also include additional vegetative buffering along the walls at the north and south ends as well as inclusion of the native species in the wetland that are being anticipated to replace whatever non-native species are being taken out. She inquired about the vehicle drop-off; with Mr. Hand responding they are still conceptual; they have not worked everything out; but the thought was to have a space so people could drop someone off and then go park, just to provide flexibility and for motion and circulation throughout the site. Commissioner Carlson inquired in terms of the number of parking spots, is this the maximum number needed or is there any reason to believe they can minimize some of their parking; with Mr. Enos responding once they go to RP, then the parking standard will drop off somewhat and they will be able to reduce parking further. Mr. Hand advised they are trying to reduce the parking and the impact of parking as much as they can compatible with the development; and they encourage alternative transportation. He stated that was the goal of the discussion with the Natural Resources and Land Development Departments; and they indicated with their type of development, they would qualify to get parking reductions as allowed by the Code and Ordinance.

Commissioner Carlson inquired if the applicant is pursuing RP versus BU-1-A; with Mr. Hand responding it sounds like that. Chair Higgs stated that can be the motion. Commissioner Carlson stated she is just confirming that the applicant is okay with that; the letter has three issues regarding BU-1-A; and the second one is that they only want compatible businesses of the dental practice as potential tenants of the development, so retail would not fit there. Mr. Hand advised retail is not in there. Commissioner Carlson stated by going RP, the applicant will be better off.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to approve Item IV.B.7 as RP with Binding Development Plan including a vegetative buffer, additional vegetation within the wetland, removal of all non-native plants, planting trees that will grow fast and thick, moving the north building to the west, and a fence or wall on the east lot line consistent with the Land Development Regulations.

Ms. Matherne advised she and her husband walked the entire length of the property line yesterday afternoon; after they did that, Land Development came out and walked it; and she talked with them this morning. She stated some of the trees are down; one particularly big one is down in the wetlands and will have to go; and there are some trees there; but once it is cleared, they are going to see straight through to US 1. She stated she understands they are going to be planting; and reiterated they want buffering. Commissioner Carlson stated she thinks they have covered that. Ms. Matherne advised she has the fencing information; with Commissioner Carlson requesting she submit it to staff.

Commissioner Carlson stated she included the vegetative buffer along with the wall on the north and south, the additional vegetation within the wetland area to accentuate and augment what is there now, getting rid of invasives and putting in native vegetation that will grow thick and fast, and moving of the northern building to the west to some degree. She stated obviously there would be some variation with the parking; but that is not something that needs to be in the binding development plan.

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

Commissioner Carlson thanked the applicants for coming to the community; and stated hopefully the County will be able to create more sustainable patterns like this that will reduce the problem of mitigation.

Chair Higgs stated she met with Mr. Evans and Ms. Edwards earlier today; and she will file notes from that meeting with the Clerk.

Item IV.B.8. (Z0409501) John Platt, Cecil Anastasio, Walter Platt and Vicky Curry’s request for change from AU to RA-2-6 with a binding development plan on 17.9 acres; and change from AU to IN(L) on 3.26 acres located on the west side of Dike Road, north of US 192, which was recommended for approval by the P&Z Board with a binding development plan.

Commissioner Colon inquired if there are any questions on the item.

Chair Higgs inquired if the zoning is for an assisted living facility (ALF). Ben Elliott responded it is a senior life center for those 55 and older; it will be an assisted living facility and then subsequent housing within the bounds of the 17 acres; and Board approved a project just like it
in North Merritt Island. Chair Higgs inquired if the binding development plan would include the over-55 years of age ALF; with Mr. Elliott responding yes, and the residential homes; and the entire project is for those who are 55 and older.

Motion by Commissioner Colon, seconded by Commissioner Pritchard, to approve Item IV.B.8 with binding development plan as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.B.9. (Z0409101) Victoria Lynne Spaulding’s request for change from GU to AU on 1.01 acres located on the north side of Caraway Street, west of Cherokee Avenue, which was recommended for approval by the P&Z Board.

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

Item IV.B.11. (Z0409103) Jabbers Food, Sports & Spirits, Inc.’s request for expansion of an existing CUP for Alcoholic Beverages On-Premises Consumption to allow outdoor seating area in BU-2 zone on .96 acre located on the east side of Grissom Parkway, south of Canaveral Groves Boulevard, which was recommended for approval by the P&Z Board with stipulation all music events be conducted inside.

Commissioner Scarborough stated there were some concerns on this; and it was approved with a stipulation that all music events would be conducted inside; and inquired if the applicant consented to that stipulation; with Joanne Abernathy responding yes.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to approve Item IV.B.11 with stipulation all music events will be conducted inside. Motion carried and ordered unanimously.

*Commissioner Colon’s absence was noted at this time.

Item IV.B.12. (Z0409104) Foster M. (II) and Susan S. Lytle’s request for change from AU to RR-1 on 2.5± acres located on the north side of Carter Road, east of US 1, which was recommended for approval by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to approve Item IV.B.12 as recommended by the P&Z Board. Motion carried and ordered unanimously.

*Commissioner Colon’s presence was noted at this time.

Item IV.B.13. (Z0408401) Donna Connors’ request for amendment to existing Binding Development Plan in an EU zone to limit density to four residential homesites on 2.2 acres located on the east side of US 1, north of Anderson Way, which was recommended for approval by the P&Z Board with a binding development plan limiting development to three residential homesites with one driveway accessing US 1.

Attorney Philip Nohrr, representing the applicant, stated they are asking for amendment to a Binding Development Plan the Board entered into a few years ago involving some property east of US 1 and north of Pineda Causeway; the property is all zoned EU; and they are not asking for any zoning change. He stated they had four lots and were limiting it to one residential unit per lot; the lot in question is approximately two and one-half acres; and what they would like to do now is amend the Binding Development Plan as it relates to this lot only to go from one to three lots. He stated that would result in one lot that would be approximately one acre; and then there would be two lots that would be a little over one-half acre each. He stated when they presented it to the Planning and Zoning Board, there were some concerns; one concern was ingress/egress; and they stipulated that there would only be one ingress/egress for all three lots. He stated the school issue came up; but the P&Z voted, by split vote, in favor of recommending it. He stated as far as recent events on the river, they had some experience with this property and so have the neighbors who are part of the Binding Development Plan; certainly the home can be located far enough west of the river so it is out of the floodplain; and there is plenty of room to do that. He stated they have met with the other members of the land covered by the Binding Development Plan; and they have agreed to the change. He stated the neighbors have also agreed; and requested favorable consideration of the request. He stated the applicants are present to answer any questions; it is their dream to have a home on the river; and this is an affordable way to do so.

Commissioner Carlson stated the Board just directed there be a small area plan at the beginning of the meeting; this was not one of the items she had drawn an exception to; so although she understands the applicants’ dream of living on the river, she wants to make sure they protect their interests as well as the interests of everybody else. She suggested tabling the item to the same time as the others so it can all be assessed as a whole.

Chair Higgs stated she has no problem doing that; but reminded the Board that it did the Binding Development Plan in December 2002; it was a rezoning request from GU to EU on six acres; and the application encumbered the adjacent four-acre tract to the south that is currently zoned EU. Chair Higgs noted in an effort to offset the impacts, the Binding Development Plan limited the property to a total of four single-family residential units; and she remembers this and the discussions about it, so she is not going to support it. She stated if the Board wants to do the small area plan, that is one thing; but the Board was very clear when it did this about what it was doing; she did what she thought was reasonable in light of the size of the parcels; and now she wishes she had not done it because it is coming back on the Board and she thinks it is wrong. She stated the Board went forward in good faith with the applicant, who is not the current applicant, to get the additional properties there; she remembers discussing it with the applicant who was doing it; but now they are facing more and she is not going to support it.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to table Item IV.B.13 to December 2, 2004 Board of County Commissioners meeting for assessment under the Small Area Plan. Motion carried and ordered; Commissioner Higgs voted nay.

PUBLIC HEARING, RE: NORTH MERRITT ISLAND DEPENDENT SPECIAL DISTRICT
BOARD RECOMMENDATIONS

Chair Higgs called for the public hearing to consider the North Merritt Island Dependent Special District Board recommendations, made at its meeting of September 9, 2004, as follows:

Item IV.D.2. (NMI40702) Intracoastal Group, Inc. and Charles D. and Beverly A. Crisafulli’s request for change from GU to AU on 50 acres located on the south side of Chase Hammock Road, east of Winding Way, which was recommended for approval by the North Merritt Island Dependent Special District Board with a binding development plan with additional stipulation limiting project to one driveway access to Chase Hammock Road and providing cross access for all lots to the driveway access if approved by the Board of County Commissioners.

John Campbell stated what they are requesting is a change from GU to AU; this is a 40-acre parcel of land; and the plan the Board has in front of it is the conceptual layout of how they want to do the lots. He stated in addition to requesting the zoning change, he thought the Board and public might like to see what they want to do with the property; and the item received unanimous approval from the North Merritt Island Dependent Special District Board. He stated the property was formerly an orange grove; it was decimated by freezes in the 1980’s; and now it is pretty well denuded of all citrus. He stated they are planning on creating 16 farmlike parcels; they have agreed in the binding site plan to limit it to one horse per site or one horse per two and one-half acres; there was concern about the problem with AU with pigs, chickens, goats, etc.; and they would consider RR-1 with the proviso that they would not have any more than 16 sites. He stated the property is adjacent to and south of Chase Hammock Lakes, which is an area he platted, planned, and is proud of; and Mr. Crisafulli is going to live on one of the parcels and he may even build his own home there. He stated the site lends itself to this type of density; his neighbors have looked it over and are favorable to it; the density of 16 units on 40 acres is low; and it is a nice looking project. Mr. Campbell stated he lives down the street from the project and is in favor of it; and he would be happy to answer any questions.

Commissioner Pritchard stated he has spoken to Mr. Campbell about the property; and inquired if Mr. Campbell said the applicant would consider going from AU to RR-1; with Mr. Campbell responding that was only to allay the fears about farm animals. Mr. Campbell stated in the binding development plan, which was filed, they agreed there would be no farm animals with the exception of one horse per two and one-half acres; there are 13 or 14 things in the BDP that Mr. Crisafulli approved; and if the Board would be more comfortable with the RR-1 zoning, they would accept that with the proviso that there would be no more than 16 sites. He stated the North Merritt Island Board asked them to consider only one access onto Chase Hammock
Road; they agreed to that; and that is the area shown in yellow on the map. He stated the houses that face Chase Hammock will have the garages in the back so they will exit onto the driveway that is shown in yellow; and Mr. Crisafulli authorized him to say that he would put up a wrought iron fence or something to physically keep the people from driving across if the Board wishes. He stated it is going to be a nice upscale area with homes in the $750,000 range. Commissioner Pritchard inquired if the area in yellow would be a private road; with Mr. Campbell responding it is a private cross access easement, which the County has favored in the past because it eliminates the number of driveways there are going to be. Mr. Campbell stated the cross access easement will be 25 feet in width; and they have agreed to have a stabilized driveway, possibly concrete or asphalt, 16 feet wide so the garbage trucks or emergency vehicles can get through there; and Mr. Crisafulli has also put in more restrictions concerning the construction of the homes.

Chair Higgs stated they cannot do all the things in the binding development agreement; they have things like prohibiting hobbies requiring electric power tools; and they cannot do it with those things included. Mr. Campbell stated he will be glad to strike anything out of the BDP. Chair Higgs stated the County is not going to enforce it; with Commissioner Scarborough advising those things should be deed restrictions. Mr. Campbell stated when he went before the North Merritt Island Board the first time, he did not have a binding development plan; that board requested he do this; he explained that these things could be done with deed restrictions; but it was tabled to bring the BDP in. He stated the only item the North Merritt Island Board was keen on was that there be only one driveway onto Chase Hammock Road. Commissioner Scarborough stated those types of things are appropriate. Chair Higgs stated it references windmills for generating power; and inquired what the Board wishes to do.

Commissioner Carlson stated this is not set up like a subdivision; but there is a ditch identified that goes around the entire project. Mr. Campbell advised there is an existing ditch that goes around it; he will be back before the Board to ask to create flag lots; but that is not part of this application. Commissioner Carlson inquired if Mr. Campbell is going to create flag lots; with Mr. Campbell responding they are going to try to create eight flag lots in the rear. Commissioner Carlson inquired about accessing from Chase Hammock Road; with Mr. Campbell responding those are his neighbors’ requirements and recommendations; the area shown as cross-hatched are the easements required for zoning; and the area shown in yellow is the private cross access easement that the North Merritt Island Board wanted. He stated they worked hard to accommodate the North Merritt Island Board; some of the things in the BDP are Mr. Crisafulli’s deed restriction; and it is to try and keep a bunch of people happy. Commissioner Carlson inquired if there will be some kind of deed restrictions on the lots; with Mr. Campbell responding yes.

Mr. Enos stated the Code does not permit this configuration without a waiver to Section 62-102, which is a process that does not happen at the zoning stage; it happens through the Land Development Department; so even though the Merritt Island Board suggested this option, it would require a waiver and he would hesitate to suggest that it is appropriate to do that in this form. Attorney Bentley advised she agrees with Mr. Enos.

Mr. Campbell stated he is here to do what the Board wants; the plan that he has was a result of having to show the North Merritt Island Board what they were going to do; the plan is not cast in concrete; and he has to get the zoning before he can make the application for the variance on the flag lot requirement.

Commissioner Pritchard stated the Board is having a good time with the covenants; he lives on North Merritt Island; there are a lot of areas he is looking at that he may buy; and he has spoken to Mr. Knox about it because Chase Hammock Road is a nice road with a stable at the end.

Commissioner Colon inquired if he is not going to vote on this item; with Commissioner Pritchard responding he is going to vote because he has not made a commitment. He stated there are a lot of areas that are going to be coming up because there are a lot of orange groves that are no longer producing; and he is looking at the different areas because he is considering having a horse. He stated what is being proposed fits in nicely with Chase Hammock Road.

Motion by Commissioner Pritchard, to approve Item IV.D.2 as RR-1.

Mr. Enos advised the Board cannot do RR-1 as the application was for AU; and RR-1 would require a reapplication and readvertisement.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to approve Item IV.D.2 as AU with a binding development plan.

Commissioner Scarborough stated this is a little unusual; there is a problem; and some of the things will be in the binding development plan, but a great deal will not. He stated Mr. Campbell has made some commitments; and he would suggest they be massaged and some put into deed restrictions if that is what the applicant wants to do as a token to the North Merritt Island Dependent Special Board. Mr. Campbell stated the reason it was tabled the first time was because the North Merritt Island Board did not want deed restrictions, but wanted them to be binding. Commissioner Scarborough stated the truth of the matter is some of the restrictions are deed restriction type things; and the Board does not enforce deed restrictions.

Chair Higgs inquired if a binding development plan is going to come back to the Board; with Commissioner Pritchard responding yes. Mr. Enos inquired what is the purpose of the binding development plan; with Commissioner Scarborough responding he has not analyzed the plan, but they should do a plan in trying to work with the people. Commissioner Scarborough recommended putting what is agreeable into the binding development plan and simultaneously putting things together as deed restrictions, so it will be in the appropriate manner. Mr. Campbell advised the only thing the North Merritt Island Board was adamant about was the entranceway. Chair Higgs stated they have a minimum square footage on houses; they have different farm animals excepted; and some of those things may need to be in the binding development plan. Mr. Enos stated the first two items, and perhaps the third are the only things that make sense in a binding development plan. Chair Higgs recommended getting that analyzed as to what is appropriate to include in the binding development plan. Attorney Bentley stated if they plat instead of doing the flag stems, they may be able to comply. Mr. Campbell stated they will not be able to do the flag stems because they have exactly 40 acres; and if they take the flag stems out, they will lose one to two lots. He stated the easements are permitted under the Land Development Code; he talked to Bobby Cameron and Gwen Heller; and he still has to come back to the Board and ask for a variance to create the flag lots using the easement.

Chair Higgs called for a vote on the motion. Motion carried and ordered; Commissioners Higgs and Carlson voted nay.

Commissioner Carlson stated she voted nay based on the school capacity issue.

PUBLIC HEARINGS, RE: ADMINISTRATIVE REZONINGS

Item IV.E.1. Section 35.01, Townships 25 and 26, Range 36, Sub. TG, Lot 1, owned by Viera Boulevard Joint Venture, Inc., proposed for change from IU, subject to a BCP to PIP, which was recommended for approval by the P&Z Board.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to approve Item IV.E.1 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.2. Section 36, Township 25, Range 36, Parcels 505, 513, 751, and 795, owned by Viera Boulevard Joint Venture, Inc., proposed for change from IU subject to BCP to PIP, which was recommended for approval by the P&Z Board.

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

Item IV.E.3. Section 01, Township 26, Range 36, Sub. TG, Lot 2, owned by Viera Boulevard Joint Venture, Inc., proposed for change from IU subject to a BCP to PIP subject to a binding development plan that maintains a 71-foot buffer on the southern boundary of the property adjacent to Holiday Springs at Suntree Subdivision, which was recommended for approval by the P&Z Board.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to approve Item IV.E.3 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.4. Sections 01 and 02, Township 26, Range 36, Sub. TG, Lot 3, owned by Viera Boulevard Joint Venture, Inc., proposed for change from IU subject to BCP to PIP, which was recommended for approval by the P&Z Board.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to approve Item IV.E.4 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.5. Section 02, Township 26, Range 36, Sub. TG, Lot B, owned by Viera Boulevard Commerce Park, proposed for change from IU subject to BCP to PIP, which was recommended for approval by the P&Z Board.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to approve Item IV.E.5 as recommended by the P&Z Board. Motion carried and ordered unanimously.

STAFF DIRECTION, RE: INTERPRETATION OF SECTION 62-2101.5 OF THE ZONING
CODE (ADDITIONAL BUILDING HEIGHT)

Commissioner Carlson stated the Board needs to give a determination to staff whether the strict interpretation of GU zoning for the FEC railroad corridor is to be viewed as a residential classification. Chair Higgs stated the Board should get staff to look at the section in the Code; and she does not think the Board should rezone the FEC property. Commissioner Scarborough stated it would be the whole strip of the FEC property with that interpretation; and he agrees with Chair Higgs that it can be solved with a Code change.

Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to direct staff to bring back an amendment to Section 62-2105.5 of the Zoning Code, Additional Building Height. Motion carried and ordered unanimously.

APPROVAL TO ADVERTISE AND SCHEDULE EXECUTIVE SESSION, RE: HARRIS V.
BREVARD COUNTY

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to grant permission to advertise an executive session on October 12, 2004 at 11:30 a.m. or as soon thereafter as possible to discuss strategy related to litigation for Harris v. Brevard County. Motion carried and ordered unanimously.

APPROVAL TO ADVERTISE AND SCHEDULE EXECUTIVE SESSION, RE:
TILLMAN/LENNEAR V. MILLER ET AL

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to grant permission to advertise an executive session on October 12, 2004 at 11:30 a.m. or as soon thereafter as possible to discuss strategy related to litigation for Tillman/Lennear v. Miller et al. Motion carried and ordered unanimously.

WAIVER OF ZONING, SITE PLAN, AND OTHER REQUIREMENTS, RE: TEMPORARY
HOUSING DURING REPAIR OR REPLACEMENT OF DAMAGED HOMES

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to waive zoning and site plan requirements for temporary housing needed for victims of Hurricanes Frances and Jeanne, thereby confirming a decision of the Policy Group. Motion carried and ordered unanimously.

Commissioner Scarborough stated he had a call; an 80-year old mother lost her mobile home to a hurricane; her family came to help her purchase another mobile home and get it set up; and they ran into permitting problems that amounted to an additional $375. He stated while the County is waiving fees for certain things, it is not for others; and requested Ms. Busacca elaborate on why the Board is making this distinction.

Assistant County Manager Peggy Busacca stated the intent of the Policy Group was certain permits are relatively easy to review and do not require extensive staff time or site visits; and it was those fees that the Policy Group had chosen to waive. She stated the average fee that has been waived is approximately $75 per permit; and a permit for a replacement mobile home is approximately $150. Commissioner Scarborough inquired why was this one $375. Ms. Busacca advised there is a fee that is approximately $200 from the State for inspection of the septic tank; so that would get to approximately $375. Commissioner Scarborough stated it is someone who does not have a lot; and other fees are being waived; he does not want to pursue it tonight, but requested Ms. Busacca prepare a report as the Board may wish to look at relief for those persons who are trying to replaced their losses. Chair Higgs requested the report also include the impact to the Building Department.

ABATEMENT OF CODE ENFORCEMENT, RE: SHORT-TERM RENTALS FOR LOCAL
RESIDENTS WHO LOST HOUSING DURING HURRICANES AND FOR HOUSE RELIEF
WORKERS

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to abate the enforcement of short-term rentals in residential areas, thereby confirming a decision of the Policy Group to abate enforcement.

Commissioner Carlson inquired if house relief workers also includes FEMA representatives, insurance adjusters, etc.; with Ms. Busacca responding yes.

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

REQUEST FOR WAIVER, RE: BUILDING PERMIT FEES TO ASSIST HURRICANE VICTIMS

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to confirm the decision of the Policy Group to wave selected permit fees for repairs to existing structures to assist hurricane victims, including re-roofs, electrical, windows and doors, fences, screen rooms, pool enclosures, carports, and garage doors. Motion carried and ordered unanimously.

REQUEST TO EXTEND EMERGENCY ORDER, RE: VULNERABLE STRUCTURES

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to adopt Emergency Resolution extending the Emergency Order adopted on September 14, 2004 regarding designation of structures as vulnerable structures for sandbag systems, beach renourishment projects, or dune restoration projects based on beach erosion from hurricane Jeanne. Motion carried and ordered unanimously.

Upon motion and vote, the meeting was adjourned at 10:27 p.m.

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NANCY HIGGS, CHAIR
BOARD OF COUNTY COMMISSIONERS
ATTEST: BREVARD COUNTY, FLORIDA

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SCOTT ELLIS, CLERK

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