March 7, 2002

The Board of County Commissioners of Brevard County, Florida, met in regular session on March 7, 2002, at 5:35 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Truman Scarborough, Commissioners Randy O'Brien, Nancy Higgs, Susan Carlson, and Jackie Colon, Assistant County Manager Peggy Busacca, and County Attorney Scott Knox.

The Invocation was given by Commissioner Jackie Colon.

Commissioner Randy O'Brien led the assembly in the Pledge of Allegiance.

DISCUSSION, RE: BOARD POLICIES AND PROCEDURES

Chairman Scarborough stated he and the County Manager's Office can only enforce the rules the Board has in place; and some of the personal appearances are becoming problematic. He stated Mr. Jenkins has some suggestions he has put into memorandum form; and he got information about two requests for personal appearances for next week's meeting.

County Manager Tom Jenkins stated they continue to encounter a problem in trying to determining whether an item should be under personal appearance or under the Public Comments section; as a result, they have come up with an alternative for the Board's consideration. He suggested the Board eliminate the term "personal appearance" and replace those with a specific request for action; stated that will mean that any citizen or organization that is requesting action would be identified not by name but by the requested action; and therefore the agenda item would be a requested action rather than just someone wanting to appear. He stated for example, a condominium association request would be listed by the action being requested, not by organization or individual; all public input on items which are not on the agenda would then come under Public Comment; and that would eliminate the confusion between personal appearances and public comment. He stated any special presentations by officials such as the U.S. Congressman, Charter Officers, etc. would be an item under New Business or under one of the Commissioners reports; and if under Public Comment, a citizen requests a Board action on an item, that item could be placed under New Business on the next Agenda, if the Board determines further discussion or action is required. He stated currently there is confusion on the part of the public and staff as to what qualifies for a personal appearance and what should be under Public Comment; several requests received this week fall in that gray area; by limiting non-agenda comments from the public to the Public Comment section, the Board can determine if further consideration or action is required; and it insures that all members of the public are treated in a fair consistent manner, eliminating confusion as to where they should best be placed on the Agenda. He stated it will take away the names of the individuals and focus on the action being requested; and the Agenda Report will spell out who they are, why they are here, and so forth.

Chairman Scarborough stated discussion on procedures is going to come back to the Board; and he would like a motion to incorporate this with the other suggested changes. He stated it is difficult, as Chairman, to handle the situations where he thinks he knows what the Board wants, but there is no rule; all he can do is enforce rules; and if there is no rule, he and Mr. Jenkins struggle to deal with the situations.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to direct the County Attorney to incorporate suggested rule changes to address personal appearances and public comments with other procedural changes, which will be coming back to the Board. Motion carried and ordered unanimously.

*County Attorney Scott Knox's absence and Assistant County Attorney Eden Bentley's presence were noted at this time.

ANNOUNCEMENT, RE: ITEM WITHDRAWN FROM AGENDA

Chairman Scarborough advised Item 8, Reitano Enterprises Inc., was withdrawn.

RESOLUTION, RE: RECOGNIZING WEST POINT BICENTENNIAL DAY

Commissioner Carlson read aloud a resolution recognizing West Point Bicentennial Day on March 16, 2002.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to adopt Resolution recognizing March 16, 2002 as the West Point Bicentennial Day. Motion carried and ordered unanimously.

Commissioner Carlson presented the Resolution to John Gulla, West Point Graduate, Class of 1960, and Vice President of the Space Coast West Point Society. Mr. Gulla expressed appreciation on behalf of the Space Coast West Point Society; and stated of the 60,000 graduates of West Point this year, seven graduates are from Brevard County.

REPORT, RE: HOUSE BILL ON SCHOOL CONSTRUCTION

Commissioner Carlson stated there is a bill moving through the Florida House of Representatives that would accelerate school construction; it was rushed through a Committee appearance on Wednesday based on strong support from State House leaders; and the bill would allow developers and local governments to set up special taxing districts to build schools as they build new developments. She stated homebuyers would pay through a tax for their own schools in addition to the regular school district levy; and requested the County Manager track the bill.

Commissioner Higgs stated there was a memorandum from the County Attorney concerning whether the County could use MSTU or special districts to provide funding for schools; so the County Attorney is also looking at innovative ways for charter schools to be formed in the County through MSTU's or special districts. Commissioner Carlson inquired if it is possible to have an MSTU for a charter school; with Commissioner Higgs responding yes.

REPORT, RE: ANNIVERSARY OF THE BATTLE OF THE ALAMO

Commissioner O'Brien stated yesterday was the 116th anniversary of the Battle of the Alamo; and commented on the location of the Alamo.

REPORT, RE: TOWN MEETING

Commissioner Colon stated the Town meeting for Palm Bay will be Saturday at the Greater Palm Bay Senior Center, at Culver Drive and Emerson, at 10:30 a.m.; and it will be important for those people who have been affected by citrus canker to attend.

REPORT, RE: MYREGION.ORG

Chairman Scarborough stated he is the Board's representative on the Executive Committee of MyRegion.org; and things do not bode well. He advised of meetings of the Chairman of the East Central Florida Regional Planning Council (ECFRPC) with others; stated there is a great deal of concern about the amount of direction needed for this to be a success; and if it is not going to work this way, a determination needs to be made in a timely manner. He stated there is a $900,000 commitment from local governments, and more than that from the private sector; it is a major commitment and issue; and the question is whether it is properly defined, or is the product going to be something that is warmed over from other areas. He stated the ECFRPC has indicated other commissions share similar concerns.

Commissioner Carlson inquired if there is some reason to believe the consultant that has been chosen is not going to do the job that was laid out. Chairman Scarborough advised originally MyRegion.org was going to ask each commission for $150,000, then do it; but through representatives on the Planning Council who affected what went through the Planning Council, that body became an equal partner; so the ECFRPC is fully integrated into the process. He advised Commissioner Randy Morris from Seminole County is the Co-Chairman; in the meetings there is a desire for things to be accomplished; but there is also a question of whether there will be sufficient time and meaning to the process. He stated if it was just a little exercise, it would be one thing, but a $2 million study to define the area, which is flawed from the outset, is dangerous. Commissioner Carlson inquired how is it flawed; with Chairman Scarborough responding it is not properly defined. Commissioner Carlson inquired if it is the scope of service to the consultant that is not defined; with Chairman Scarborough responding no, it is what they are trying to accomplish and the result. Chairman Scarborough stated this may have extreme
implications; and he talked to a lot of people in Brevard County, telling them it was good; he supported it throughout; and he does not plan to have his name associated with it if it is going to be a failure. He stated it needs to be defined in a timely manner so actions can be taken to make changes and correct it, and it is not all lost, rather than waiting two years to find it is a loss. Commissioner Carlson stated the Port went in with this; and inquired if the Port is aware and has the same feeling. Chairman Scarborough stated he has not talked to the Port; he does not know if the Port looks to it for the same reason local governments do; and he heard through the Planning Council that other counties have the same concerns he does. He stated Commissioner Morris could change it and it could continue on; they could go back and say it is a bad idea; or they could restructure the whole thing; but the Board needs to know it is not looking good.

Commissioner Higgs inquired if there will be a report from Commissioner Morris at the ECFRPC meeting in a couple of weeks; with Chairman Scarborough responding at the last meeting, he asked for a determination on the Sunshine law, and whether it applied to his talking to Commissioner Morris; he is trying to get Jerry Livingston to render an opinion; and as soon as he finds out, then he can meet with Commissioner Morris. Chairman Scarborough stated good can come of it; and Commissioner Morris wants to make it work, but he is also frightened.

Commissioner Carlson inquired if Commissioner Morris is on the Executive Council; with Chairman Scarborough responding yes, which is 26 people who are supposed to be making the decisions to define it; two people co-chair it; and Commissioner Morris is one of them. He stated Commissioner Morris represents the governmental side of the almost $1 million; that is where it is; and the Board needs to be apprised of what is going on.

Commissioner Higgs inquired if Chairman Scarborough wants the Board's support to ask a question of the ECFRPC concerning the status, the direction, and when it will be known. Chairman Scarborough stated this afternoon he asked Jeff Jones whether it would be advantageous to call a special meeting of the Planning Council to identify and take care of the problem; Mr. Jones talked to Commissioner Morris, who said no; and he is seeing if he can meet with Commissioner Morris without violating the Sunshine Law. Commissioner Higgs inquired if they could meet if it was noticed; with Chairman Scarborough responding Mr. Knox mentioned that as a possibility; but if it is noticed, every member of the Planning Council would be foolish not to come to the meeting, so it would result in a special meeting. Chairman Scarborough stated it is a monstrous thing; and if it goes bad, it is not good for the County.

REPORT, RE: SCHOOL CAPACITY ISSUES

Assistant County Manager Peggy Busacca advised the Board has been given paperwork concerning school capacity considerations in rezoning actions including a history of the Board's decisions on rezoning issues in which school capacity was an issue. She stated another form is done in chronological order; and as the Board thinks about the school capacity issues, it will have the voting history in front of it. She advised October 4, 2001 was the first meeting where the Board clearly established this current policy.

Commissioner Colon stated she received a copy of a letter indicating the Chairman of the LPA has concerns regarding school capacity; and inquired if that is something the Board should put on the Agenda for the next meeting. Ms. Busacca stated the Local Planning Agency would like to have an opportunity to have a dialogue with the Board; and she will schedule that.

Commissioner Higgs inquired on the list that was just provided, were there special criteria that allowed the Board to approve them. Planner Robin Sobrino inquired if Commissioner Higgs means as part of the motion of approval; with Commissioner Higgs responding yes. Ms. Sobrino advised the Resolutions did not specifically reflect anything to that effect unless there was a restriction on number of units that was part of the motion.

PUBLIC HEARING, RE: ZONING RECOMMENDATIONS OF JANUARY 7, 2002

Chairman Scarborough called for the public hearing to consider the recommendations of the Planning and Zoning (P&Z) Board, made at its public hearing on January 7, 2002, and tabled by the Board of County Commissioners as follows:

Item 1. (Z0201104) Kevin S. Woodruff's request for change from GU to AU on 1.01 acres located on the north side of Carraway Street, which was recommended for approval by the P&Z Board.

Chairman Scarborough stated last time the Board talked extensively about the number of goats that could be on the property; but he understands the goat issue has gone away; with Kevin Woodruff advising that is correct. Chairman Scarborough inquired if there are other issues. Zoning Official Rick Enos stated the owner has requested permission to continue to have AU zoning, but with a Binding Development Plan limiting the agricultural use to one horse. Mr. Woodruff advised the original request was eight goats or one horse.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to approve Item 1 with BDP limiting it to one horse. Motion carried and ordered unanimously.

Item 2. (Z0201201) Charles V. Eaton's request for a CUP for Alcoholic Beverages for On-Premises Consumption in a BU-1 zone on 0.52 acre located on the northwest corner of Highway A1A and 35th Street, which was recommended for denial by the P&Z Board.

Chairman Scarborough stated his notes show the Board concluded the public hearing. Assistant County Attorney Eden Bentley stated the discussion was somewhat confusing; there was a motion to table the motion to deny to allow findings of fact to be developed; there was discussion about the date; and then there was the phrase, "we'll hear it again on March 7." She stated in that context, the intent was to simply have the finding of fact presented; but if anyone wishes to speak, the Board could use the two-minute rebuttal rule. Chairman Scarborough stated no one has submitted a card requesting to speak.

Motion by Commissioner O'Brien, seconded by Commissioner Higgs, to approve Finding of Fact, adopt Resolution outlining Findings of Fact and Conclusions, and deny rezoning.

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATIONS OF
FEBRUARY 11, 2002

Chairman Scarborough called for the public hearing to consider the recommendations of the Planning and Zoning (P&Z) Board, made at its public hearing on February 11, 2002, as follows:

Item 1. (Z0202101) Claudius C. and Anna Lou Pratt's request for change from RU-1-11 to RU-2-4 on 0.80 acre located on the west side of Devoe Avenue, which was recommended for approval by the P&Z Board.

Chairman Scarborough stated Mr. Enos mentioned to him some limitations. Zoning Official Rick Enos stated the applicant indicated at the P&Z meeting that he was looking for a duplex; RU-2-4 zoning, which is what was requested, is the lowest density multi-family; and that would generate a maximum of three units. Chairman Scarborough inquired if Mr. Pratt wants a duplex; with Claudius Pratt responding yes, at this time. Chairman Scarborough inquired if the applicant will agree to just the duplex; with Mr. Pratt responding he would prefer the three units. Chairman Scarborough stated there is no agreement to a duplex.

Commissioner Higgs stated she does not see any other multi-family or duplex units in this area; there is RU-1-11 and some manufactured housing; and inquired if there is any multi-family; with Mr. Pratt responding he is not sure.

Commissioner Carlson inquired why is the school enrollment not given; with Mr. Enos responding there is no increase in density. Mr. Enos stated there were no objections; the density is the same; and one neighbor was in support at the P&Z meeting.

Commissioner Higgs inquired if the Board is comfortable about establishing RU-2-4 as the standard in the area; with Chairman Scarborough responding at this juncture, the community does not appear to be concerned about a change in standard.

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

Item 2. (Z0202102) Environmental Permitting, Inc.'s request for change from GU to TR-2 on 3.23 acres located on the west side of Burgess Avenue, which was recommended for approval by the P&Z Board.

Assistant County Manager Peggy Busacca advised Mr. McCoig called her earlier this evening; he is a City Councilman from Rockledge, which had a special meeting this evening; so he is unable to be present tonight.

Commissioner Higgs stated looking at the map, there is TR-2 along the road; but going in from those parcels that are directly abutting the road, there is a pattern of RRMH-1; and she inquired if the Board should consider TR-2 along the road, but RRMH-1 moving in from there toward the GML and the interior lots.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to table Item 2 to April 4, 2002 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item 3. (Z0202402) Gushing Waters Family Resort, Inc.'s request for change from RU-2-4 and BU-1 with a BDP to RU-1-7 removing the existing BDP on 23.79 acres located on the north side of SR 520, which was recommended for approval by the P&Z Board with BDP limiting development to 95 units.

Boaz Bar-Navon, representing Mercedes Homes, stated the applicant is Mercedes Homes, but the owner is Gushing Waters; Mercedes Homes is interested in purchasing this property, which presently is zoned RU-2-4 with a small piece of BU-1 on SR 520 to develop a new subdivision, Fern Meadows, with homes from $100,000 to $130,000 on lots of 50 feet by 120 feet; and to do that, they need RU-1-7 zoning. He stated the application is to rezone from multi-family and commercial zoning to RU-1-7, which is downzoning; he was unable to attend the P&Z meeting, but was told there was debate and confusion about the wording of the new Comprehensive Plan on what density is permitted on the property. He stated until the new Comprehensive Plan, in August or September, 2001, the land use for this area was twelve units per acre urbanizing; the land use presently is community commercial; and the Comprehensive Plan talks about utilizing the nearest residential density on the same side of the road, and going one level above that. He stated the nearest density to this property is much further west at two units per acre; the zoning adjacent to the property is already RU-2-6; and the P&Z recommendation was for RU-1-7 with a cap. He requested the Board not have a cap; and if it does cap it, to put a five unit per acre cap. He stated the Code provides for them to be able to come to the Board to ask for an increase in density at a public hearing; and requested the Board rezone the property from RU-2-4 with a BDP and BU-1 on the one-acre outparcel to RU-1-7 over the entire 23 acres.

Chairman Scarborough stated the item comes to the Board with a recommendation for a Binding Development Plan limiting density to 95 units; but the applicant has indicated he does not want that; with Mr. Bar-Navon responding that is correct. Chairman Scarborough stated there is a potential of 165 units; with Mr. Enos advising that would be the maximum possible under all perfect conditions; but the yield is expected to be closer to 110 or 115. Chairman Scarborough inquired if that would be in line with what is being suggested; with Mr. Enos responding yes, it is approximately 4.5 units per acre.

David Cooper, President of Gushing Waters Family Resort, Inc., stated due to the events of September 11, he lost funding to build the planned resort; and requested the Board consider the proposal put forth by Mercedes Homes at the densities requested. He stated it has cost him a lot of money planning for the resort; when he lost funding because of September 11, it was a financial drain; and he stands to lose a considerable amount of money.

Paul Dean stated he was unable to attend the first hearing; he lives directly across the street from the property, and his business is there; and unfortunately the whole area is changing. He stated he owns Cocoa Kennels, which is a boarding kennel; and the change in zoning to single-family homes and the density are going to cause him hardship and legal headaches, and cost him money. He stated the kennel has been there 25 years; it is the only accredited facility in the
County, and one of only five in the State; and described the facility. He stated he is concerned about the density moving in across the street; even though he was there first, he will have complaints and legal challenges; the highway may drown out the noise and other stuff to a certain extent; but it is not going to make that much difference. He advised of another kennel that had development around it, which had legal challenges; stated the owner redesigned it to make it noise friendly, but was driven away from his business and had to sell it. He stated he has no problem with development; he knows the nature of the area is changing; and advised of the history of the area as agricultural. He stated Gushing Waters got the zoning changed from agricultural to put in a resort; he thought Gushing Waters was a good idea because the waterfalls would drown out the noise of the kennel; but unfortunately that is not going to happen now. He stated other things are happening to the area; SR 520 is going from a two-lane to a four-lane divided highway with a grass median; originally there was going to be no access to his business; but he has worked with DOT to put a two-way directional turning lane there. He stated he does not have a problem with Mr. Cooper, but questions the economics, September 11 issue, and losing money; and requested, if the Board rezones the property, it considers sound control.

Mr. Bar-Navon stated Mr. Dean has some valid points; and he would be happy to voluntarily include some additional buffering. He stated he likes the idea of running water, and may put a fountain or something; and he will work with staff to accommodate the concerns.

Chairman Scarborough read aloud from the staff report, "The nearest residentially designed area on the same side of the street permits a density of two units per acre; therefore based upon the density bonus provisions in Policy 2.13, this property could be developed at a residential density of up to four units per acre. In light of the foregoing, RU-1-7 is not deemed consistent with said density allowance." He stated it further says, "In summary, the rezoning request would limit development of this property to single-family homes while the previous zoning approval by the Board limited this property to maximum of 52 units. The density allowance of the Future Land Use Element would permit a maximum of 95 units. RU-1-7 zoning however, permits greater density; therefore, the applicant must offer to limit the project to 95 units." He stated that is what the P&Z Board decided; there was some assumption that was where the item was going this evening; but the applicant has indicated that is no longer acceptable. He inquired if Mr. Bar-Navon will accept a limit of 95 units; with Mr. Bar-Navon
responding they would prefer to accept a unit per acre value because if they buy additional property, they would not want someone saying they were still restricted to 95 units. Chairman Scarborough inquired if the limit was four units per acre, would Mr. Bar-Navon have a problem with that; with Mr. Bar-Navon responding he would prefer 5 or 6. Chairman Scarborough stated his inclination is to pass the gavel and move for denial without that as a part of the agreement; with Mr. Bar-Navon responding if the alternative is denial, he will accept the four units per acre.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to approve Item 3, limiting density to four units per acre.

Assistant County Manager Peggy Busacca inquired if this will be in the form of a binding development plan; with Chairman Scarborough responding yes. Ms. Busacca stated staff is requesting an opportunity to review all binding development plans before they come to the Board for final approval. Chairman Scarborough stated that is a wonderful idea because that way they will not end up after the fact with confusion about the intent of the Board.

Commissioner Higgs stated she is concerned about the location of fairly high-density homes in neighborhood commercial zoning; it is sandwiched between SR 524 and SR 520; she is not sure what the right zoning is; but RVP has some validity because of the proximity to I-95, SR 520, and SR 524. She advised she is not saying she is going to vote against the item; but she is looking at this hard because it does not fit well. Chairman Scarborough stated the Board should table the item for further discussion on the numbers.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to table Item 3 to April 4, 2002 Board of County Commissioners meeting to allow review of BDP, including density at four units per acre. Motion carried and ordered unanimously.

Item 4. (Z0202201) Noble Properties II, Ltd.'s request for CUP for Alcoholic Beverages for On-Premises Consumption in a BU-1 zone on 15.92 acres located on the southwest corner of Crockett Boulevard and North Courtenay Parkway in the Merritt Crossing Shopping Center, which was recommended for approval by the P&Z Board.

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

Item 5. (Z0202202) Richard J. and Marcia W. O'Halloran's request for a CUP for Adult Congregate Living Facility in an RU-2-12 zone, removing the existing CUP for an Independent Living Facility on 3.9507 acres located on the west side of North Courtenay Parkway, which was recommended for approval by the P&Z Board.

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to approve Item 5 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 6. (Z0202401) Twigg-Newton Properties, LLC's request for amendment to a BDP in a BU-1 zone and change from RR-1 to BU-1-A with a BDP on 2.019± acres located on the west side of Wickham Road, which was recommended for approval of the amendment to the BDP by the P&Z Board.

Kelly Robinson stated his property is in Windsor Estates; it will be near the buffer zone for the subject property; and inquired about the intent of the change of zoning.

John Newton, representing Twigg-Newton Properties, LLC, advised approximately seven months ago he and his friend Jim Twigg purchased a nine-acre piece of property with the intent of building a bicycle retail store and martial arts studio; they needed extra area for retention so they rezoned the property to BU-1; and pointed out the area on the map. He stated even though they could have rezoned all the way back, they elected to cap it because of people's concerns; and it was approved in July 2001. He stated subsequent to that, they purchased a 12-foot strip of property to add width to the parking area; but unfortunately it has required them to go through the rezoning process again to rezone the 12-foot strip. He stated the 12-foot strip was already BU-1; the P&Z Board suggested BU-1-A; and all they are talking about is widening the property by 12 feet to have better use of it. He advised to get the 12-foot piece, they traded 20 feet; they are not going any further to the south; they are over 200 feet from Windsor Estates; and the only thing that could possibly go back there is a house for the owner of the bicycle shop. He advised of conversations with neighbors to buy additional property. Mr. Robinson noted he is on the other side.

Commissioner Carlson stated she appreciates the explanation.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to approve amendment to BDP, rezoning RR-1 and BU-1 with a Binding Development Plan to BU-1 and BU-1-A with an Amended Binding Development Plan, as recommended by the P&Z Board. Motion carried and ordered unanimously.

Ms. Bentley inquired if the BDP needs to be reviewed; with Ms. Busacca responding it has been thoroughly reviewed by staff; and there is no change to it. Mr. Newton stated all they are doing is amending the legal description to add the 12 feet, and everything else remains the same.

Item 7. (Z0201501) Brevard County Board of County Commissioners, on its own motion, authorized administrative rezoning on property owned by The County Line of Brevard, Inc. to remove an existing CUP for Permanent Commercial Entertainment and Amusement Enterprises in a BU-1 zone, retaining the CUP for Alcoholic Beverages for On-Premises Consumption on 2.71 acres located at the northeast corner of I-95 and U.S. 192, which was recommended for denial by the P&Z Board, with condition the applicant obtain final site plan approval (As-built Survey and Certification of Completion.)

Commissioner Colon requested David Kingery, Kelly Benninger, Marc Clenaghan, Sean Napier, Brandon Crissman, Dallas Anderson, Robert Prince, and Teresa Rumler come forward.

Attorney Tino Gonzalez, representing the County Line, Inc., stated the County has sought to revoke the Conditional Use Permit for the County Line as a result of some work that they made an application for last year in terms of increased parking to accommodate the bull riding activities. He submitted copies of Florida Animal Enterprise Protection Act, Florida Statute 828.40; and Florida Statute 15.039 designating the Official State Rodeo, as well as letters from Waffle House and Miorelli Engineering. He stated a survey was completed; Mr. Miorelli was paid some time ago to complete the survey, and has been diligent in doing that; but unfortunately he was only able to submit that yesterday because of his work schedule. He stated there has been concern on the part of some members of the community about whether animals were being treated improperly; Chapter 828.40, F.S., discusses that, and rodeos are part of that; and rodeos are much favored in the State. He advised Florida has the Silver Spurs Rodeo, which is the largest rodeo east of the Mississippi River; it is located approximately 35 miles from the County Line; and it is the Official State Rodeo, as designated by Chapter 15.0391, F.S. He stated these laws were specifically passed to preclude animal rights groups from interfering with lawful animal enterprises, which is what the County Line is; some people are against any kind of rodeo activity; but the law promotes and has a policy in favor of rodeo activity; and the issue should not be considered by the Board in determining whether or not the CUP should be revoked. He stated Mr. Benninger is a life-long local resident; he went to Eau Gallie High School; he wrestled in college; and he is currently a volunteer at Eau Gallie High School as a wrestling coach. He noted Mr. Benninger is not paid significantly for doing that; but he puts back into the community. He stated Mr. Benninger and the other owner have spent huge amounts of money toward the purchase of this land; and noted he is a minority stockholder in the corporation. He stated the rodeo pen took away 32 parking spaces; and the acreage behind the County Line was obtained to provide an additional 108 spaces. He stated in September 2001, the County Line received a survey; it was somewhat approved as to the layout; since September, the County Line people have been working with Miorelli Engineering to complete the final as-builts and the work; and all the work has been completed. He stated yesterday they received from Mr. Enos and Mr. Moia a listing of things that need to be remedied; and the first is that the perimeter of the boundary of the stabilized parking area does not match the approved plan, and the as-built is lacking in full dimension. He stated he looked at the as-built and the survey; there are complete dimensions; and the dimension of the perimeter is fully outlined pursuant to appropriate rules as far as what Mr. Miorelli as an engineer and surveyor was promulgated to do under Florida law. He stated when Mr. Miorelli prepared the survey, he placed dirt parking; the County Line seeded that; and it took a while for the seed to root and grow; but now the parking area is completely covered in grass, exceeding the 60% requirement; so the parking issue is taken care of. He stated the second item was pavement markings, specifically stop bars and handicapped parking stripes, were not shown on the as-built; but all of the paved parking area, which surrounds the building and includes the handicapped parking area, was in place long before the requested Conditional Use Permit; that is not in the as-built, as adequate and approved handicapped parking spaces are outlined on the existing parking lot and all parking spaces on the paved area are lined. He stated Mr. Miorelli made an effort to call Mr. Enos and Mr. Moia to figure out what problems existed; and they could have remedied that on the computer as far as outlining where handicapped spaces and lines are. He stated the third item is there is no stop sign; and pointed out where the sign is indicated. He stated some of the work was required to be done such as a paved apron from the existing roadway onto the field parking area; a stop sign was inadvertently left off the survey; but Mr. Enos or Mr. Moia could clearly indicate it is there. He stated on the issue of drainage, Mr. Miorelli has submitted a letter setting forth that the drainage requirements exceed that which is required under the existing Plan and County Code; but he has apparently not been able to discuss that with Mr. Moia or Mr. Enos, so it is an issue. He stated the drainage is constructed; and according to Mr. Miorelli, it far exceeds Code. He stated the last issue deals with the handicapped parking area; they have been in existence and were approved by the County well over ten years ago; and the interoffice memorandum is important in that it has given some direction as to what needs to be resolved; however, many of the issues have already been resolved. He stated they appeared before the P&Z Board, which denied the request to rescind the Conditional Use Permit, with the proviso that all the work be completed and the as-built and survey be submitted and approved. He stated because the work has been done and there are very minimal issues regarding the approval of the survey, he is respectfully asking the Board to consider denying the request to rescind the Conditional Use Permit. He stated there are laws in favor of rodeos; there are no economic or safety issues involving the County Line; they have submitted a petition with over 600 signatures; and there are a lot of people present who will testify and give their opinions that this is a good thing that promotes tourism in the County and creates a tremendous amount of jobs. He reiterated his request to deny the request to rescind the CUP, or put in a proviso to revisit the issue, if the work is not completed and approved within the next 30 days.

Commissioner Colon stated this started in March 2001; and she wants to focus on some of the things that were discussed at that time regarding the CUP; and inquired if Mr. Gonzalez received the packet with the rezoning and review worksheet and brief chronology of events; with Mr. Gonzalez responding he does not have it in front of him, but did look at it previously. Commissioner Colon stated in March 2001, there were many issues on which they went back and forth; in May 2001, the applicant filed to have approved site plan for parking; and then it went on without complying for three months. She stated August 11, 2001, the terms of the CUP were violated; September 5, 2001 the Special Master found the property owner not to be in compliance; they appeared before the Special Master again; and there are more issues. She stated in October, November, and December 2001, there was still failure to comply with the conditions imposed to the CUP; on January 4, 2002 Code Enforcement served notice to the property owner of failure to comply; and in January and February 2002, the County Line was still holding events even though there were violations of the CUP. She stated she wants to see where everything is with the timeline; with Mr. Gonzalez responding his understanding of the usual course of events regarding a CUP and complying with the construction aspects to bring things into compliance is that people are normally permitted up to one year to comply. Mr. Gonzalez stated on the issue of submitting a normal site plan, Mr. Benninger was first informed he could submit a site plan, which would be nonprofessional in its nature, and he prepared a and submitted a site plan in May 2001; and thereafter it was reported to him that he needed a professionally drafted site plan, which was submitted. He stated they then appeared before the Special Master who made a determination they were in compliance; and in September 2001, they obtained approval of that site plan. He stated they then submitted the request to Miorelli Engineering to complete the as-builts, and started completing the work; they worked diligently and completed all the work; and they have held no monthly rodeos since all this started again with Code Enforcement. Kelly Benninger stated he is one of the owners of the County Line Saloon; and the whole issue is that some people in the County does not want bull riding because they think it is hurting the animals; so every time he gets a plan done, it changes, and he is told he needs to do this or that.

Chairman Scarborough inquired if Mr. Benninger is responding to Commissioner Colon or is this his speaking time, and does Commissioner Colon want to start the clock. Commissioner Colon requested the Chairman start the clock.

Mr. Benninger stated they started the project, and were told they had to have a site plan; and he was put in touch with Bruce Moia. He stated Mr. Moia advised he could draw the plan himself; he sat down with Jim Statlick who told him how to draw it up; and he did so, submitted it, and was told it looked good. He stated approximately three weeks later, he got a call that it was no good, and was requested to come in; and commented on Code violations, political pressures, and requirement for an engineered drawing. He stated his understanding is there was pressure over animal rights; and he was told he needed to get an engineered drawing. He stated getting an engineered drawing was not something he could do in two days, but he got the drawing and submitted it, and it was approved; and he was told he could now do bull riding. He stated he began the bull riding, but received a Code violation because the drawing had not been approved; and advised the day before he appeared before a Special Master, the plan was approved. He stated even though they had a bull ride a month before that, they were not in compliance because the plan was not approved yet, although it had been submitted. He stated the Special Master gave him the basic fine and said he was in compliance; and he thought because his site plans were in that he could start bull riding again. He stated he even talked to Ms. Busacca; the site plan was reviewed and approved; and he started bull riding again. He stated they had three bull rides, and he got a letter saying the County wanted to revoke his CUP because he was doing bull riding without the work being done. He stated when he got his paperwork back, it was his understanding from Miorelli that he had up to a year to finish that work; he is putting in some swales and a paved driveway; the parking lot was already there; and staff was worried about water runnoff not going onto the orange grove. He stated he got that work done; he stopped bull riding completely because Code Enforcement came out; and he called Ms Busacca to inquire what was going on and why no one called to ask how he was coming on the work. He stated the County sent him a letter saying it wanted to yank his CUP; that is not even proper procedure; and someone could have phoned him or sent a letter inquiring about the construction work. He stated it is not possible to get all that work done in two months because it is necessary to get bids and talk to various people; and no one knows why he did not get a letter or a phone call. He stated he asked why his CUP was being yanked when he did not even get a Code violation; and the next day Code Enforcement gave him a Code violation. He stated the County is covering its tracks; he got the Code violation and
stopped all bull riding; and there was no bull riding in January or February. He stated he has been working on this constantly; he has done what he said he was going to do; every time the County has asked him to do something, he has done it; now he has turned in the survey; and he is getting shot down, even though staff has been out there and seen the work.

David Kingery stated he is a lifelong resident of Brevard County; and he supports the County Line's bull riding.

Marc Clenaghan stated he is in favor of bull riding at the County Line Saloon; and commented on allegations of cruelty to the animals, care of the bulls, and rodeo at the Fair in Palm Bay. He inquired why P.E.T.A. is not trying to shut down the Fair; stated P.E.T.A. has done everything to shut County Line down; Mr. Benninger worked day and night on the parking lot; and he also spent a lot of money on sod, seed, and machine rentals.

Sean Napier stated he has been a resident of Palm Bay and Melbourne for ten years; and he is in favor of County Line bull riding. He stated it gives the community entertainment; and it gives people who might normally be out on the street causing trouble something to do. He stated if P.E.T.A. would watch the bull riding and talk to some of the bull owners, they would see the animals are treated with pride.

Brandon Crissman, resident of Rockledge, stated he is for the bull riding; and it gives a lot of young athletes the chance to get a name for themselves and go on to be professionals.

Dallas Anderson, resident of Titusville for over ten years, stated there has not been any bull riding activity in the last two to three months; and he works as head security at the County Line Saloon. He stated the events drew a crowd from the Melbourne area as well as from Miami, Jacksonville, and Tampa; there have never been any problems with any of the customers; and the events are safe and fun. He stated if people were not watching the bull riding, they may be out on the streets doing drugs or something else.

Robert Prince, resident of Satellite Beach, stated the bull riding should go on at the County Line Saloon; the animals are treated fairly; and advised of his experience with rodeos. He noted the patrons of the bar are well away from the animals; and he is in favor of the bull riding.

Teresa Rumler stated she is a former State Humane Investigator in the State of Virginia; and she is speaking on behalf of the law abiding residents of the County. She urged the Board to revoke the CUP for bull riding at the County Line Saloon; stated animal cruelty is the essence of bull riding; the animals are traumatized; and described devices such as the flank strap and electric cattle prod used to motivate behavior through pain and terror. She stated animals suffer mental and physical terror; a few have even been killed for a few moments of entertainment; and the Humane Society of the United States, as well as many communities, including Pinellas County, Florida; Fort Wayne Indiana; South Hampton, New York; Pittsburgh, Pennsylvania; Leesburg, Virginia; Baltimore, Maryland; and the State of Rhode Island have permanently banned rodeos. She stated bull riding is a violent and unpredictable event involving animals weighing over 2,000 pounds each; the arena at the County Line is only a few feet from U.S. 192, I-95, homes, and several businesses; bulls have been known to escape from well-constructed permanent enclosures; and the County Line has only temporary, portable enclosures. She stated permitting bull riding events in this congested heavy traffic area is dangerous for the bulls and the public. She stated the County Line owners have been irresponsible regarding their CUP; their enclosures were to have been of a temporary nature and easily dismantled between events, but that is not the case; and since Spring 2001, the arena, complete with extensive fencing, holding pens, metal bleachers, chutes, and announcer stands, have been in place continuously in the northwestern parking lot of the County Line Saloon. She stated the original parking area required for the business property has been
permanently reduced in size by the area of the arena; the business held several monthly bull riding events under the CUP without the requisite site plan being filed, reviewed, and accepted by County officials; and at a Code Enforcement hearing held in September 2001, the County Line owners were found guilty and fined for knowingly violating the terms of the CUP. She stated this demonstrated failure to act in good faith; and it makes the County Line a bad risk for future compliance with any additional direction. She stated animal cruelty issues aside, the County Line has demonstrated it is above the law by violating the terms of the CUP on several separate occasions; and to allow this kind of event to be held in close proximity to major highways, businesses, and homes is not in keeping with the safety of the general public. She recommended the Board revoke the CUP from the County Line Saloon.

Alexi Howk voiced support of revocation of the CUP; and stated the County Line Saloon brought up the animal issues but they violated the law. She stated it is the Board's job to hold the County Line accountable for disregarding the law; she has concerns for the animals as well; and commended the County Line for bringing in some very good entertainers, which is good for the community. She stated that has drawn many customers; it is probably their main customer base; and she would not say it is the rodeo drawing people, but the musicians the County Line has brought in. She stated they have a right to run their business, but not to invoke pain on animals and violate the law.

Attorney Gonzalez stated a report requested by the Board on animal cruelty says, "The investigation team could find no incident of cruelty or inhumane treatment of the bulls used in the events as these terms are defined in the State or County law. The investigation team could find no evidence of any cruelty or inhumane treatment of bulls in the past, nor any procedure that was followed that could have resulted in injury or cruelty to the animals. Investigation team can find no evidence to support the allegations presented to the Board members of the County Commission or to B.A.S.E. from concerned citizens. In fact, the various rules in place for the conduct in the event ending meticulous enforcement of those rules by officials and owners appear to leave little room for any cruelty to occur." He stated the people at the County Line Saloon have not been guilty of disregarding the law; they have worked in good faith with the Building Department to complete what has been required of them; they have completed those terms; and there has been no cruelty to animals.

Mr. Benninger stated animal rights is not the issue; by law the Board cannot even listen to that issue because bull riding is not an animal cruelty issue; and he was told that by Florida Agriculture and Consumer Services Commissioner Charles Bronson. He stated they are complying with the CUP; and it has nothing to do with animal cruelty.

Attorney Gonzalez stated this is a business; the owners have spent a large amount of money; they are businessmen; and they are not trying to make a quick dollar, but are here for the long run. He stated they have made a good name for Brevard County; this is a sporting event as much as it is entertainment; and they provide jobs for people. He stated they go out of their way to bring quality entertainers to the County; they encourage and promote the County as a place where people can enjoy themselves in a safe, controlled, and law abiding manner; and they would like to proceed with the bull riding activities. He requested the Board not approve the revocation of the Conditional Use Permit. He stated the Board should be compelled to let the CUP remain; the Building Department should allow 30 days to correct the alleged non-compliance with the as-builts; and the Board can revisit the issue and pull the CUP at a future point in time if necessary. He stated they have done well as far as compliance; they are not professional engineers; they purchased the land behind the County Line for a specific purpose, to increase and replace parking so the activity can take place; and it would be a travesty of justice for them not to be permitted to do this. He asked the Board to deny the request to revoke and follow the recommendation of the P&Z Board.

Commissioner Colon requested information from staff on how long the applicant had and the checklist for the development and as-built requirements. Mr. Enos stated an applicant has three years after a site plan is approved to complete the site plan improvements before the plan expires; however, that does not mean he can start the use. He stated the applicant can only start the use once the site plan is completed; so there is a three-year period to complete the improvements, but the site plan must be complete before the use can start. He stated as far as the memorandum from Mr. Moia that was received today, the as-built survey was received on March 5, 2002; it was reviewed on March 6, 2002; and there were several problems with the submitted as-built. He stated many of the problems had to do more with the as-built being incomplete and not showing all the information necessary; however, there were two provisions that indicated that the improvements did not match the approved plans. He stated specifically under parking, the perimeter boundary of the stabilized parking area does not match the approved plans; under drainage, the stormwater management system does not match the approved plans; so there are still some outstanding issues on the improvements that are out there compared to the approved site plan. He stated he does not know how long it will take to correct the problems or have final closure on the site plan; but as of now, the as-built has not been approved by Mr. Moia. Commissioner Colon stated Mr. Enos said they had three years; and inquired what is the history of the use here. Mr. Enos responded the Conditional Use Permit for the use was granted in March 2001; one of the conditions of approval was to move the parking from its current location, which is where the bull riding arena is, to the back; and they needed approval of the site plan and make the improvements to the parking. He stated after the CUP was approved, there were at least three bull riding events in May and August, as witnessed by Code Enforcement; site plan for the parking was submitted in June; and a Code Enforcement case was brought before the Special Master in September 2001. He noted the owner, at that time, stated he had abated the bull riding; in September, the site plan for the parking was approved, and Code Enforcement determined the violation for no approved site plan had been corrected; so they had an approved site plan, but had not made the improvements yet. He stated in October 2001 the Board directed staff to initiate a public hearing for reconsideration of the Conditional Use Permit; staff noted there was a pre-recorded message for Saturday, December 3, for a bull riding event; but it is not known if that occurred. He advised site plan improvements had not been completed in December; Code Enforcement in January served notice to the CUP owner for failure to comply with the requirements of the CUP, and allowed 30 days to correct that; and as of January 2002, approximately 75% of the improvements are estimated to be complete. He stated today the as-built survey was submitted, but has not been approved because of the inconsistencies between the improvements and the original site plan.

Ms. Busacca advised she has additional information, including the Code Enforcement findings of fact that were done by the Special Master on September 5, 2001; it says the respondents were present and admitted they were in violation, but were now in compliance; however, the Special Master found they had failed to remedy the violation and were subject to the revisions of the Code. She provided copies to the Board and to the applicant. She stated there is also a letter from Jack Parker indicating the Public Safety Department had been asked to provide ALS dedicated stand-by for County Line for bull riding events; and the dates given were in January, February, March, April, May, June, July, August, September, November, and December 2001. She stated she spoke with Mr. Benninger on several occasions, both in person and on the telephone; she does not recall ever telling Mr. Benninger he did not have to complete the improvements required under the site plan, although that was a point of confusion and discussion; and Mr. Benninger was on notice for several months that it was expected that the site plan improvements would have to be completed, the as-built brought in, and the certificate of completion done before the bull riding could commence.

Commissioner Colon stated based on what staff has told the Board, the County line is in violation of the CUP.

Motion by Commissioner Colon, seconded by Commissioner Carlson, to direct the County Attorney to prepare finding of facts to remove the CUP from the County Line Saloon, close the public hearing, and table Item 7 to April 4, 2002.

Commissioner Higgs inquired since the Board put forth new evidence, should it allow responses; with Ms. Bentley responding only to the additional information that was provided. Chairman Scarborough stated any Commissioner can recognize people any time they wish. Commissioner Higgs stated she would like to recognize Attorney Gonzalez if he wishes to respond to the additional evidence put on the record. Chairman Scarborough advised the rules are such that the applicant has five minutes to respond; after that the Chair does not have the prerogative to expand the rules; but Commissioners have complete discretion in the finding of fact before voting.

Mr. Benninger stated he would like to respond to the statement that he was found to be in non-compliance; he has the order from the Special Master that he was in compliance; and it says the order acknowledging compliance will be recorded in the Public Records of Brevard County. He stated at that time, he was told, since his site plan was approved, that he could resume the bull riding; and in October and November, he resumed bull riding. He stated he then got a letter from the County saying his CUP was going to be pulled because the work was not done; he got the approved site plan two and one-half months before that; and he is not saying Ms. Busacca said he could do bull riding before the work was done, but he was told he had to have an approved site plan to do the bull riding. He stated he started the bull riding again; then he got a letter from Zoning saying his CUP was going to be removed; so he stopped bull riding. He stated he called Ms. Busacca and Ms. Sobrino to ask how they can do that since he had not gotten a Code violation; and the next day Code Enforcement came to give him a Code violation. He inquired where is his due process.

Mr. Gonzalez stated his position, looking at what Mr. Benninger submitted, is that is it not a complete document; he does not see the order acknowledging compliance as part of the package; and to the extent it is not a complete document, it is inappropriate for it to be made part of the record until it is fully amended to reflect a complete recitation of what happened on September 20, 2001.

Chairman Scarborough inquired does the Board have the complete document; with Ms. Busacca advising it is a September 5, 2001 date. Mr. Gonzalez advised he objects because there must have been a continuation from September 5, 2001 if there is something that happened fifteen days later on September 20. Ms. Busacca advised that was when Mr. Benninger finished paying the costs as assessed. Mr. Benninger stated he had something from the Special Master with all the comments saying he was in compliance, and to have bull riding events would require a site plan entry for approval. Chairman Scarborough requested Mr. Benninger show Ms. Busacca what he has; with Mr. Benninger doing so. Ms. Busacca advised what Mr. Benninger has is the action file report, which is the staff summary, and not the Special Master's findings; and the Special Master's Order is what she provided to the Board.

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

The meeting recessed at 7:16 p.m. and reconvened at 7:39 p.m.

Item 8. (Z0201305) Reitano Enterprises, Inc.'s request for a CUP for Convenience Store with Gasoline Sales in a BU-1-A zone and removal of an existing BSP on 1.26 acres located on the east side of Babcock Street, which was recommended for denial by the P&Z Board. Item 8 was withdrawn by applicant.

Item 9. (Z0201101) Thomas O. Bigelow, (Jr.) and Betty L. Bigelow, Trustees' request for change from GU to AU on 10 acres located on the southwest corner of Blounts Ridge Road and Patty Lane, which was recommended for approval by the P&Z Board pending resolution of the school issues.

Chairman Scarborough inquired about the school issue. Mr. Enos stated there are two schools that are currently over capacity, Madison Middle School and Astronaut High School; and the application is from GU to AU on ten acres, which would change the potential from two houses to as many as four houses. Chairman Scarborough stated the Board would probably want to consider a binding development plan to limit it to two units. Mr. Enos stated Mr. Bigelow did indicate in the P&Z meeting that his goal was to keep 2.5 acres for himself and sell the other 7.5 acres; but he does not know if the intent is to sell the 7.5 acres to one individual or more than one.

Tom Bigelow stated a couple wants to buy the 7.5 acres; he wants to keep the 2.5 acres to eventually build; and he believes the couple wants horses on the 7.5-acre property. He stated the only way to keep the 2.5 acres was to rezone the property to AU; and there would be no increase in density.

Chairman Scarborough inquired if Mr. Bigelow will agree to a binding development agreement limiting it to two units. Mr. Bigelow stated he has no problem with that; but inquired if it would be for a term such as five years. Chairman Scarborough stated Mr. Bigelow could come back at any time to readdress it and get more units; and explained the school overcrowding issue. Mr. Bigelow inquired if he would have to reapply for rezoning; with Chairman Scarborough responding yes. Mr. Bigelow stated he would have no problem with that.

Commissioner Higgs stated since it is a simple binding development plan, could it come back to a regular meeting; with Ms. Busacca responding yes, it could be put on March 19, 2002. Chairman Scarborough inquired if there is a rush; with Mr. Bigelow responding there is no rush. Chairman Scarborough recommended doing it at the regular zoning meeting. Mr. Bigelow stated he would like to be able to tell the buyers they can go ahead with this; with Chairman Scarborough advising Mr. Bigelow can tell them it is happening, but will not be final until April 4, 2002. Commissioner Carlson suggested Mr. Bigelow call Ms. Busacca or the Zoning Office for specific clarification. Mr. Bigelow inquired if the binding development plan will not require him to reapply for a zoning change; with Commissioner Carlson responding that is correct, unless he wants to change what he is doing on his property. Chairman Scarborough stated if in four or five years, the people to whom Mr. Bigelow is selling the 7.5 acres find there is no longer a school capacity problem, they could request the binding development agreement be removed.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to table Item 9 to April 4, 2002 Board of County Commissioners meeting to allow review of a BDP limiting density to two units. Motion carried and ordered unanimously.

Item 10. (Z0201103) L. Clayton Human and Jerry Michael Hanna's request for change from AU to RR-1 on 2 acres located on the south side of Foggy Bottom Road, which was recommended for approval by the P&Z Board.

Mr. Enos stated the request is from AU to RR-1 on two acres; it would allow a parcel with one house to be split into two parcels with one house each; so there would be a potential increase of one house. He stated there is overcrowding at Madison Middle School and Astronaut High School.

L. Clayton Human stated his son is already enrolled in Madison Middle School, and has been in the Brevard County system for six years; he does not intend to have any more children; his father owned the property for 20 years; and he has owned two acres for the last fifteen years. He stated he sold his house and one acre, and would like to get the other acre rezoned so he can come back. He stated he has been living in New Smyrna Beach for the last three years; and it is time for him to come back and build a house so he can look after his father's land.

Mr. Enos stated there is a house on the property now; and inquired who lives in the house; with Mr. Human responding no one, as the owner is a long-distance truck driver who is on the road all the time, and he has no children. Mr. Enos inquired if Mr. Human is moving his family back to Brevard County; with Mr. Human responding yes. Mr. Human noted his son has never left the County as he stays with his mother and grandmother. Mr. Enos inquired if his son stays on this property; with Mr. Human responding no. Mr. Human stated the property is a flag lot off Turpentine Road. Mr. Enos inquired if Mr. Human said he has no more children; with Mr. Human responding that is correct.

Commissioner Carlson stated the Board needs to be consistent with what it has done. Ms. Busacca stated the County Attorney has advised in the past that if the testimony the Board hears is compelling enough to believe there is not going to be an impact to the school system, the Board can go forward and be consistent with the Policy.

Commissioner Higgs stated when she talked to the County Attorney, they discussed establishing a mechanism to insure consistency with the smaller properties; in some of the level of service issues, there is talk about diminimous impacts; and requested the County Attorney address that. Ms. Bentley stated in order to have the diminimous procedures apply to the level of service for schools, it would be necessary to do a Comprehensive Plan amendment to provide for that; the current Statutory provisions do not put the diminimous language in the school category; and right now the Board has to deal with the language in the Comprehensive Plan and determine whether or not there is evidence before the Board that there will not be an impact on the schools, if there is a school overcrowding issue. Commissioner Higgs stated the way to do it to be sure and be consistent with other Statutory language, would be to put that in if there is a minimal impact up to 10% of the over-capacity. Ms. Bentley advised the Board can create its own criteria if it puts it in the Comprehensive Plan. Commissioner Higgs inquired about the schools and whether either is over 10%; with Commissioner Carlson responding
Madison Middle School is at 119% and Astronaut High School is at 111%. Commissioner Higgs stated both are more than 10%, so even if the Board wanted to go to the diminimous standard that is statutorily outlined, it cannot get there.

Chairman Scarborough inquired if there are any other courses of action. Ms. Bentley stated the Board has taken evidence in the past from various individuals regarding the school-age children in their households and the likelihood of school-age children in their households.

Commissioner Carlson inquired if there is some sort of caveat that can be added when it gets over one unit. She stated the big problem is the gentleman is planning to do something with his property, and is not planning to sell it; but if something happened tomorrow and he had to sell it, if it had the proposed zoning and it was sold to someone with five children, it would have a much bigger impact. She inquired how can the Board keep that from occurring and how could it be policed.

Commissioner Higgs stated the staff comments show zero units on this parcel; and inquired if he could pull a building permit today; with Mr. Enos responding there is a house on the property now; and the requested zoning would allow up to two houses. Commissioner Higgs inquired if he could put one today; with Mr. Enos reiterating there is already one there.

Chairman Scarborough inquired if there is a way to change the Comprehensive Plan for an increase in the number of units by two or less. Ms. Bentley advised it will depend on what kind of analysis the Board gets from staff to support that kind of language in the Comprehensive Plan.

Commissioner Carlson requested Ms. Busacca explain the options that were presented. Ms. Busacca advised staff presented three options; and the first was that any increase in density would be problematic based on school capacity. She stated the second was a threshold of three or less; and that came from the average that every house has approximately one-third child in the school system. She stated the third option was a subdivision of 20 units; and that was suggested by the School Board staff because it is not possible to point to any given house and say "x" number of children will be entering the school system from that given house. Commissioner Carlson stated she does not remember Mr. Knox's discussion, but believes he said the Board had more latitude the way it has been going. Commissioner Higgs stated if Ms. Busacca's rationale is that each house would produce .3 children in the school system, one additional unit would not produce an additional need; with Ms. Busacca advising that is correct. Commissioner Higgs stated the Board talked about a threshold of three, but not one; and two units would produce .6 children, which rounded up would be an increase of one person.

Discussion ensued on .3 person generated per unit, concern about saying no to everything, impact based on the greater than 100% rule, and need to trace the issue.

Commissioner Carlson suggested tabling the item if the Board wishes to have further discussion on what the LPA wanted. Chairman Scarborough advised the Board got a letter from the LPA. Ms. Busacca stated she will see if Ms. Ott, the P&Z Board Chair, can come to the March 19, 2002 meeting.

Commissioner Higgs stated RR-1 zoning is not present anywhere except one place on the far left of the map, but there is a variety of zoning categories; and the Board has to decide how it is going to deal with the small impacts to the school because it has to be comfortable and consistent. Commissioner Carlson stated the Board is not getting direction from anybody else, so it has to make a decision on how it is going to approach that.

Chairman Scarborough suggested tabling the item for two months to be sure the issue is fully addressed. Ms. Busacca suggested it could be tabled to the next meeting; and if the Board has not addressed it, staff can let the applicant know so he will not have to come, and it could be tabled again.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to table Item 10 to April 4, 2002 Board of County Commissioners meeting to allow resolution of school capacity issue. Motion carried and ordered unanimously.

Item 11. (Z0201203) Robin K. Squires and Missileland Development Corporation's request for change from RU-1-9 to RU-2-15 with a CUP for Residential/Recreational Marina and removing existing CUP for a marina and the BDP on Lots 48, 49, and 50, and removing the Specific Use for boat storage, boat repair, and marine-related uses only, and all BU-1 uses with conditions regarding buffers on Lots 1 and 2, on 2.96± acres located on the west and east sides of South Banana River Drive at the eastern terminus of Worley Avenue, which was recommended for approval by the P&Z Board with a BDP.

Rochelle Lawandales, Lawandales Planning Affiliates, stated Mike McPhillips, who is the intended purchaser and developer of the property, is present to answer any questions the Board might have. She noted she gave staff an updated version of the binding development plan; and submitted the document and pictures to the Board.

Mr. Enos stated the changes that he and Ms. Lawandales have talked about have to do with the over-55 age designation that she wishes to place on the property; Ms. Lawandales is willing to register the property with the Florida Commission on Human Relations as housing for older persons; and she is willing in the governing documents for the homeowners association to prohibit residents 18 years of age or younger, until such time as the capacity issues are adequately addressed.

Commissioner Higgs stated they talked about the pump-out station because a residential marina is planned; there is a pump-out station there, but the Code currently prohibits it; and requested staff look at the issue before the pump-out station is taken out. She stated things
have changed since the Comprehensive Plan was written in 1988; and it may be advantageous to consider that. She stated she is not asking for any agreement from the applicant now; she is just asking for a report from staff; and if the Board needs to readdress that, it might be something the applicant would consider if the pump-out station has not been taken out. Ms. Lawandales stated they will gladly keep and upgrade the pump-out facilities.

Commissioner Carlson stated the Comprehensive Plan says no one can have a pump-out facility in a residential marina; but it makes sense to have it in a 30-slip marina. Commissioner Higgs stated the Board can determine if it wants to change the rules.

Commissioner O'Brien inquired how many slips are there now; with Ms. Lawandales responding 45. Commissioner O'Brien inquired if the applicant is willing to decrease it to 30 slips; with Ms. Lawandales responding yes. Commissioner O'Brien stated the P&Z approved it with a Binding Development Plan; Mr. Enos just brought up some points to be included in the motion; and inquired what were they. Mr. Enos recommended making reference to the amended binding development plan. Commissioner O'Brien stated it would allow up to, but not exceeding the 45 present slips; and it is good that the applicant is offering 30. Mr. Enos advised they cannot exceed 30. Commissioner O'Brien advised they have 45 slips now; with Mr. Enos responding they are changing from a commercial marina to a residential marina, which is limited to 30 slips; so the intent is to reduce the number of slips to 30. Commissioner O'Brien inquired who made that rule; with Ms. Busacca responding that was based on the Marina Siting Task Force that occurred in excess of ten years ago; the group included marina owners, DEP, and a large number of others; and the recommendations were incorporated into the Comprehensive Plan, and then later into the Zoning Code. Commissioner Carlson inquired if that was the same group that did the pump-out station language. Commissioner O'Brien stated the rules are not good if they have 45 spaces now, and they have to cut back to 30; and inquired what if someone has a 35-foot boat and an 18-foot jet boat, for which they want a separate slip.

Commissioner Higgs inquired if the applicant wishes to have this tabled so the Comprehensive Plan can be changed; with Ms. Lawandales responding no.

Commissioner O'Brien inquired about keeping the pump-out station intact; with Commissioner Carlson stated the pump-out station is included in the amendment in case it is something the Board wants to deal with. Commissioner O'Brien stated part of the motion will be to consider keeping it maintained; and inquired why not change both rules; with Commissioner Carlson advising that is what staff is going to explore.

Motion by Commissioner O'Brien, seconded by Commissioner Colon, to approve Item 11 with amended BDP, keeping the pump-out station intact.

Ms. Busacca stated staff would like an opportunity to look at the Binding Development Plan; and requested the item be tabled. Commissioner Higgs inquired if that has not already been reviewed; with Mr. Enos responding staff had the Binding Development Plan for several weeks;
and staff requested one change, which the applicant provided. Ms. Busacca inquired about the federal housing standards; with Ms. Bentley responding they have been added, but she does not see a legal description. Ms. Lawandales advised she will attach that.

Motion restated by Commissioner O'Brien, seconded by Commissioner Colon, to approve with amended BDP, keeping pump-out station intact and adding legal description. Motion carried and ordered unanimously.

Item 12. (Z0201303) Certified Building Corporation's request for change from GU to SR on 1.21 acres located on the west side of Highway A1A, which was recommended for approval by the P&Z Board with a BDP limiting density to one unit.

Commissioner Higgs stated the P&Z Board recommended approval with a binding development plan limiting density to one unit; and inquired if Mr. Winkler is in accordance with the recommendation.

Dan Winkler, Vice President of Certified Building Corporation, stated he is; but when the School Board gets its situation straightened out on capacity, he would like to be able to come back and change the binding development plan; with Commissioner Higgs advising that is his right. Commissioner Higgs inquired if an additional review is necessary on the binding development plan; with Ms. Busacca responding no.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve Item 12 with BDP limiting density to one unit as recommended by the P&Z Board. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: NORTH MERRITT ISLAND DEPENDENT SPECIAL DISTRICT
BOARD RECOMMENDATIONS OF FEBRUARY 14, 2002

Chairman Scarborough called for the public hearing to consider the recommendations of the North Merritt Island Dependent Special District Board made at its February 14, 2002 meeting, as follows:

Item 1. (NMI20201) Beverly A. Anderson, Trustee's request for change from AU to BU-1-A on .58 acre located on the west side of North Courtenay Parkway, which was recommended for approval by the North Merritt Island Dependent Special District Board.

John Campbell stated he represents applicant Beverly Anderson, who has a nonconforming agricultural property on North Courtenay Parkway; the property has a bungalow on it and a small barn; and the current residents are not going to renew their lease. He stated Mrs. Anderson recently married Charles Crisafulli; and it is their intention to apply for BU-1-A zoning
to turn the property into commercial zoning. He stated he went before the North Merritt Island Dependent Special District Board; and there were no objectors present. He advised the property sits between other business property; the best use of the property will be for a neighborhood commercial use; and requested the Board grant the rezoning.

Ronald Ostroff stated he lives on the property that abuts the southwest corner of the property in question; he could not attend the preliminary hearing; but he did send a letter stating his opposition, and neighbors attended and opposed the change. He stated there are three reasons for his opposition; when he purchased his property, he checked the surrounding zoning; his property was generally surrounded by residential or agricultural, leading him to believe it would be a quiet non-commercial area; and his neighbors were of the same opinion. He stated he does not believe the zoning should be changed to only benefit the specific property especially if it is to the detriment of neighboring properties; and advised the requested zoning allows for a wide latitude of businesses to be placed there including small motor repair shop, which can be expected to generate a fair amount of noise. He stated the most important objection is that the property is being used in violation of current zoning; there is a martial arts school there now with yelling or chanting during evening hours, which disrupts life in the area; and if the zoning is granted, the message is being sent that it is okay to violate zoning policy because someone can come in at any time and have the zoning changed. He stated in the previous hearing his neighbors did bring up the issue of the martial arts school; the representative of the property said he knew nothing about it; and nobody had additional proof, so the matter was dropped. He submitted a photograph of the property entrance showing a karate sign; stated the vote at the P&Z meeting was 4 to 2; and if a little more proof had been offered, the vote may have been different. He requested the Board deny the zoning request.

Commissioner Higgs inquired which way is Mr. Ostroff's property; with Mr. Ostroff pointing out his property on the map, and stating the Citrus Club Subdivision is south and west bordering the property.

Mr. Campbell stated he does not know, but does not believe there is a karate school there; there is a home with a barn that has a horse in it; and there may be a karate facility near the property. He looked at the photograph; and stated the driveway is to the north of the parcel that is being zoned.

Commissioner O'Brien stated if a property has a karate school without proper zoning, then Code Enforcement should be notified, and this problem should be rectified. He noted the Board does not necessarily direct Code Enforcement; but as a complaint has been made, he will ask staff to relay tonight's comments to Mr. Bowen.

Mr. Campbell stated he knows nothing of the karate school; but it would make no sense to request a zoning change if there is already a commercial use; and he would be happy to show the Board a survey of the property. He stated at the meeting of the North Merritt Island Dependent Special District Board, he said if the neighbors objected to a particular use, the applicant would restrict that use and make it part of the plan. Commissioner O'Brien advised the Board has maps, drawings, and everything that is necessary, and the survey will not show anything the Board does not already know about. Mr. Campbell stated he would like to get the item tabled to find out if there is a karate school; the people who are currently there are not going to be there any longer; and if there is a zoning violation, it will be removed.

Commissioner Higgs stated at the February 14, 2002 meeting, Eric Sandoval was present and said there was a karate school there, and asked the Board if they were familiar with it; and inquired why Mr. Campbell did not follow up to see if there was really a karate school. Mr. Campbell advised someone in the audience said they thought the karate school was next door so he did not think it was on the applicant's property. He stated if there is a karate school there, it will be done away with; and requested the Board consider that this is a nonconforming agricultural property between business zoning, and its best use would be neighborhood commercial. Commissioner O'Brien stated the property to the north is BU-1; to the south is BU-1 with RU-1-7 in the middle of it; and BU-1 is across the street as well, and essentially it is a pre-planned commercial corridor. Mr. Campbell advised they are looking for BU-1-A, which is less intense.

Chairman Scarborough inquired if the item was tabled, would it be beneficial to check into it further. Commissioner O'Brien stated he has seen the property; he heard arguments on both sides; and it was a split vote of the District Board.

Mr. Campbell stated he asked what the objections were; but he was told they just did not like it. He advised no one objected to it; and the only person there said he wanted to see how the process worked. He stated it is a commercial corridor; and he will be happy to make the commitment that there will be no more karate use if it is approved, if it is on this property.

Motion by Commissioner O'Brien, to approve Item 1 as BU-1-A, with condition if a karate school is on property, it is to be removed; and if the karate school is on another property, Code Enforcement will be out there posthaste to see what is going on.

Commissioner O'Brien stated if the karate school is on another property, Code Enforcement will see what is going on.

Commissioner Higgs stated it takes a 75-foot lot for BU-1-A; and this one is 70 feet. Mr. Enos stated that is correct under normal circumstances; however, there is a provision in the Code that says if someone has nonconforming lot of record, he or she can request a change of zoning to another classification consistent with the Comprehensive Plan; and since this is a nonconforming AU lot of record, the applicant can request BU-1-A under that provision.

Assistant County Manager Peggy Busacca stated if the motion stands, removing the karate school posthaste is going to be difficult for staff to interpret and enforce correctly; and requested Commissioner O'Brien provide more specific language or an opportunity to review the language and bring it back. Commissioner O'Brien stated the representative of the owner of the property has made a promise in good faith; and inquired if saying within 15 days would be appropriate. Ms. Bentley stated this has crossed over into Code Enforcement; the only thing the Board can do under Chapter 62-1151 is restrict the range of uses on the property; and if the Board wants to couch it in those terms, it can do that. She suggested Commissioner O'Brien may say the use is restricted so that there is no karate school allowed on this property, which will then create an immediate Code violation if there is a school there.

Mr. Campbell stated when they first talked to staff about this, the zoning they wanted was BU-2 for a storage warehouse; but staff advised the only thing the Board might support would be BU-1-A; and they had no intention of every having a karate school there.

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to approve BU-1-A with exception of karate-type school. Motion carried and ordered; Commissioner Colon voted nay.

Discussion ensued on dealing with the problem of the karate school.

PUBLIC HEARING, RE: ORDINANCE AMENDING AQUACULTURE REGULATIONS

Chairman Scarborough called for the first public hearing to consider an ordinance amending aquaculture regulations.

Commissioner O'Brien stated the first change clarifies that existing Case II operations are to become nonconforming uses, but they are grandfathered in, so if someone has that use, the property can remain with aquaculture.

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to approve moving the ordinance amending aquaculture regulations to the second public hearing, tentatively scheduled for March 19, 2002. Motion carried and ordered unanimously.

Upon motion and vote, the meeting adjourned at 8:25 p.m.

____________________________________
ATTEST: TRUMAN SCARBOROUGH, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA
_____________________
SCOTT ELLIS, CLERK
( S E A L )