MINUTES OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

August 2, 2001

The Board of County Commissioners of Brevard County, Florida, met in regular session on August 2, 2001, at 5:30 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Susan Carlson, Commissioners Truman Scarborough, Randy O'Brien, Nancy Higgs, and Jackie Colon, Assistant County Manager Peggy Busacca, and Assistant County Attorney Eden Bentley.

The Invocation was given by Reverend John Mitten, Port St. John Baptist Church.

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

BOARD ACTION, RE: ITEMS II.A.4, II.B.6, II.B.9, II.B.17, II.D.3, AND III.D.4

Assistant County Manager Peggy Busacca stated staff has requested some items be tabled. Zoning Official Rick Enos stated several items have been requested to be tabled by the applicants or staff, including Items II.A.4, II.B.6, II.B.9, II.B.11, II.B.17, and II.D.3.

Item 4. (Z0105402) Cocoa Expo's request for change from TR-1 and TR-3 to BU-1 on 6.30 acres located on the north side of SR 520, approximately 346 feet east of Friday Road and on the east side of Friday Road, approximately 540 feet north of SR 520, which was requested for tabling for re-advertisement of the Comprehensive Plan amendment.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to table Item 4 for re-advertisement. Motion carried and ordered unanimously.

Item 6. (Z0107106) Steven D. and Veronica M. Lawhon's request for Small Scale Plan Amendment to change the residential density designation from one unit per 2.5 acres to one unit per acre; and change from GU to SEU on 4.35 acres located on the north side of Hibiscus Avenue, approximately 130 feet west of Grissom Parkway, which was recommended for approval by the LPA and P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to table Item 6 for re-advertisement. Motion carried and ordered unanimously.

Item 9. (Z0107109) Stephen V. and Cheryl D. Pramuk's request for a Mixed Use District Boundary Expansion and change from AU and RU-1-13 to BU-1 on 2.10 acres located on the north side of SR 46, which was recommended for denial by the LPA of MUD and approval of Community Commercial on south 300 feet; and by the P&Z Board for approval of zoning to BU-1 on the south 300 feet only.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to table Item 9 to September 6, 2001 Board meeting. Motion carried and ordered unanimously.

Item 11. (Z0107201) Publix Supermarkets, Inc.'s request for Conditional Use Permit to permit light fixtures exceeding 32 feet in height and 400 watts per bulb in a BU-2 zone, retaining an existing CUP for Sale of Alcoholic Beverages for On-Premises Consumption (Z-7606) and removing an existing CUP for Sale of Alcoholic Beverages for On-Premises Consumption (Z-9243) on 10.72 acres located on the south side of SR 520, approximately 630 feet east of SR 3, which was recommended to be tabled by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to table Item 11 to August 6, 2001 Planning and Zoning meeting and September 6, 2001 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item 17. (Z0107302) Louis F. and Dorothy M. Lavrich, Co-Trustees' request for Small Scale Plan Amendment to change residential density designation from two units per acre to four units per acre; and change from BU-2 to RU-2-4 on 0.66 acre located on the east side of U.S. 1, approximately 1,010 feet south of Daytona Boulevard, which was recommended for approval by the LPA and P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to table Item 17 for re-advertisement. Motion carried and ordered unanimously.

Item 3. (NMI10703) Teen Missions, Inc.'s request for change from AU to RVP with removal of the existing CUP for a temporary security trailer on 20 acres located on the south side of E. Hall Road, approximately 260 feet west of Savannah's Trail, which was requested to be tabled to August 9, 2001.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to table Item 3 to August 9, 2001 North Merritt Island Dependent Special District meeting. Motion carried and ordered unanimously.

Mr. Enos stated staff has just become aware of a request by the applicant to table Item II.D.4.

Item 4. (NMI10501) Bud and Mary Carol Crisafulli's request for a CUP for Towers and Antennas in an AU zone, removing the existing CUP for a Temporary Security Trailer on 42.31± acres located immediately southwest of East Crisafulli Road, which was recommended for denial by the North Merritt Island Dependent Special District Advisory Board.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to table Item 4 to September 6, 2001 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Ms. Bentley inquired if Item II.A.4 and II.B.6 are going to be re-advertised or are they being tabled to a time certain; with Mr. Enos clarifying they will be re-advertised.

REPORT, RE: REDUCTION OF CODE ENFORCEMENT LIEN

Assistant County Attorney Eden Bentley stated there is a Code Enforcement lien proposed negotiated settlement; there is a lien that is superior to the County's lien; and the property is being foreclosed. She stated the County's lien is $15,452; if it goes to the foreclosure sale, the County's lien will be wiped out; they are proposing to settle with a payment of $7,000; and she recommends the settlement.

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to authorize reducing the Code Enforcement Lien for Peter Jones, 1660 E. Central Avenue, Merritt Island, from $15,452 to $7,000. Motion carried and ordered unanimously.

DISCUSSION, RE: TABLED AND WITHDRAWN ITEMS

Chairman Carlson stated the prior items were tabled to other dates; and if anyone is present to speak to any of those items, they will not be heard tonight.

Mr. Enos stated Items II.B.10 and III.B.15 were withdrawn.

Item 10. (Z0107110) Brevard County Board of County Commissioners' on its own motion authorized administrative rezoning from GU, RR-1, and PIP to GML-P and removal of the existing BSP on 388.10± acres located on the north side of SR 405 and west of the FECRR, which was withdrawn by staff as the property is to be annexed into the City of Titusville.

Item 15. (Z0104202) Harold Kurz, as Trustee's request for change from AU to RU-1-13 on 29.62 acres located on the southeast corner of Pioneer Road and Lewis Carroll Avenue, which was withdrawn by applicant.

ANNOUNCEMENT, RE: PROCEDURE

Assistant County Attorney Eden Bentley explained the rules, procedures, standards for evidence, and time limits for presentations.

REPORT, RE: LETTER CONCERNING BREVARD COUNTY HISTORY VOLUME III

Commissioner Higgs stated she received a letter, and each Commissioner has been provided with a copy, concerning Brevard County History Volume III; and requested the County Manager look into the item and provide a response to the Board.

PUBLIC HEARING, RE: TABLED ITEMS FROM MARCH 5, APRIL 9, AND MAY 7, 2001
PLANNING AND ZONING MEETINGS

Chairman Carlson called for the public hearing to consider tabled items from March 5, April 9, and May 7, 2001 Planning and Zoning meetings.

Item 1. (Z0103404) The Viera Company's request for change from RU-2-10 to BU-2 on 12.7± acres located on the south side of Barnes Boulevard, approximately 0.34 mile west of U.S. 1, which was recommended by the P&Z Board for approval of BU-2 on the easterly 8.31-acre parcel and EA on the remainder as modified by the applicant and with a BDP, and BU-1 on Tract A1, as modified by the applicant.

Hassan Kamal, Engineer with BSE Consultants, representing The Viera Company, stated their request is for a rezoning of a portion of the property to BU-1 and the balance to EA, which will provide a buffer to the adjacent land uses. He stated the property is located within the Viera DRI, and is covered by the DRI land use category in the Comprehensive Plan; and what the County approved in 1990 and in 1995 is part of the Development Order for the DRI, and Map H is what is approved as the Comprehensive Plan land use. He stated the zoning is compatible with the Comprehensive Plan land use; the parcel is approved in the DRI for 15,000 square feet of retail, which means the only zoning the County can approve and still be consistent with the Comprehensive Plan is BU-1. He stated the environmental aspects have been discussed including the status of the parcel as it relates to scrub jay habitat; and provided a brief history of the issue going back to 1987 when the development order for the project was originally submitted. He advised of permits that have been obtained, and stated The Viera Company set aside and managed in excess of 400 acres of scrub jay habitat within the property. He stated that management has been going on for several years; it has been very successful; and they have provided monitoring that shows that the habitat has significantly improved and the colonies have increased. He stated all they are asking for is a housecleaning item; when the DRI was approved, this property was deemed compatible to adjacent land uses; it is consistent with the Comprehensive Plan; and they are asking for the property to be zoned to what was approved within the original DRI.

Betsy Bowman, Attorney with Hopping, Green, Sams and Smith, representing The Viera Company, stated she has been with the project since 1987; and it is important to understand that the development rights and the wildlife mitigation for the parcel were set in place over ten years ago in the original DRI approval. She stated Viera has complied with those requirements and changed its position based on those requirements; and what is before the Board tonight is a consistency rezoning. She stated the original DRI approval involved extensive surveys; as part of those surveys, it was noted that scrub jays and scrub jay habitat were present on the parcel as well as to the north, east, and south; and those issues were reviewed as part of the negotiated Agreement and Development Order in 1990. She stated the development rights that were set in place at that time by the Board provided for retail use of the parcel without additional scrub jay preservation, conservation, or management or a wildlife corridor; in exchange for that, the Development Order provided for extensive mitigation; 282 acres were specifically set aside for impacts on gopher tortoise and scrub jays; and an additional 12 acres were set aside for that purpose. She stated The Viera Company has changed its position in reliance on that approval by obtaining Army Corps of Engineer Permits and consultation with U.S. Fish and Wildlife

Service that allowed development of the parcel subject to all the mitigation and more that was required in the DRI Development Order; and they have set aside conservation areas as required. She stated they have established and carried out the scrub jay management plan that was provided for in the DRI and in the environmental permits at an annual cost of thousands of dollars, including physical alteration of the land through prescribed burns. She stated they have ordered their development plan so they can develop in certain areas while conserving other areas; and they have over ten years of continuous and reasonable reliance on the approval in 1990 by the Board, which was reaffirmed virtually without change in 1995. She stated the County is equitably estopped at this point to revisit the wildlife mitigation for this parcel; they have done what was required and have been successful; and she has documents from the ecologist setting forth the revitalization of the scrub jay families that has occurred as a result of the active management of the scrub jay habitat by The Viera Company. She stated the only zoning that is appropriate is a retail zoning; Section 163.3194, F.S. would require the zoning to be consistent with the Comprehensive Plan; this land is in a DRI Comprehensive Plan category; and the DRI provides for retail use subject to the conditions of the Development Order. She stated they have established DRI vested rights to carry out the development as originally approved in 1990 and reaffirmed in 1995; and the County cannot interfere with those rights at this point by establishing additional conditions. She stated The Viera Company played by the rules; and the spirit of fair play would say the County should do the same. She stated everyone might do something different if they were re-evaluating the overall DRI mitigation package for wildlife impacts as a whole; but this is part of an overall wildlife mitigation package that The Viera Company has honored. She stated The Viera Company would be willing to continue discussions on this point at the site plan level; but the only zoning action that is appropriate at this time would be for the County to approve the pending request. She submitted certain documents related to the DRI Development Order, a letter from Senior Planner Carey Hayo addressing the consistency of the rezoning, and a letter from the ecologist, Mr. Cox, addressing the success of the scrub jay management.

Commissioner Scarborough inquired if the Board has been provided these documents previously for review. Ms. Bowman stated the documents are on file and the County is well aware of the DRI Development Order history. Commissioner Scarborough stated when the Board takes things into consideration, there are certain rules; and there should be an ability to look at the items and have staff comment. Ms. Bowman stated if the Board chooses not to accept the submittal items, she will stand on her comments. Commissioner Scarborough stated in the future if someone wants to rely on certain records, there should be an opportunity for comment on both sides. Chairman Carlson inquired if staff is aware of the documents Ms. Bowman is referring to. Ms. Bowman stated they would be the 1990, 1995, and 2000 Development Order, excerpts from the current Comprehensive Plan, and a letter from Carey Hayo. Commissioner Higgs stated the Development Order and the Comprehensive Plan are part of the public record, but she has not seen the other documents; and she objects to those being part of the evidence as she has not had an opportunity to review them. Ms. Bowman stated they prepared excerpts concerning wildlife and the approved master plan. Commissioner Higgs stated she does not want just excerpts; and the entire document is part of the public record. Ms. Bowman requested the County recognize the part of the 1990 Development Order approved in November 1990, the April 1995 Development Order, and the current Development Order that was approved December 12, 2000 as well as the currently effective Comprehensive Plan including the Future Land Use Map and Element.

Chairman Carlson stated Ms. Bowman is saying the County should still play the same game it played in 1990 and that it is estopped from doing anything other than that; and inquired if the Department of Environmental Protection changes the rules, how is that incorporated into the DRI. She stated if additional scrub jay habitats had been designated, the mitigation in 1990 would not necessarily apply; and inquired how that would apply in the discussion. Ms. Bowman responded the pertinent wildlife agencies, which would have jurisdiction over the impacts, have already authorized the development of the parcel as a whole; and therefore, they have already signed off on any impacts to the parcel subject to the mitigation that was provided elsewhere. Chairman Carlson inquired what would happen if they found out that there are additional families of jays; with Ms. Bowman responding the permit would allow development. Chairman Carlson inquired if they would have to mitigate further; with Ms. Bowman responding they would not have to modify the permit.

Amy Mosher, representing the Sierra Club Turtle Coast Group, submitted paperwork; and expressed concern about the requested commercial rezoning. She stated commercial development would potentially destroy this vital parcel, which links the Cruickshank Sanctuary with the rest of the wildlife corridor; and described a photograph of the area. She stated in Brevard County scrub and wetlands support 75% of listed species; the parcel being considered is in optimal scrub condition, and contains a territory of scrub jays and a 3.4-acre wetland; and commented on the scrub jay and mitigation of the core reserve. She stated if this parcel is lost to commercial zoning and development without providing a corridor link, the scrub jays will not be able to travel to the Cruickshank Sanctuary; and the Sanctuary would become isolated. She stated Cruickshank could support five territories; and advised of photographs taken from an airplane. She commented on Crane Creek Boulevard not being developed as intended to preserve habitat, commercial property in Rockledge, and The Viera Company doing a good job setting aside lands for listed species. She stated the Sierra Club urges the Board to do its best to preserve some corridor link to the Cruickshank Sanctuary.

Chairman Carlson inquired about the photographs that were submitted; with Ms. Mosher explaining the orientation of the photographs.

Mary Sphar stated the parcel in question was identified in the Viera DRI as appropriate for 15,000 square feet of retail; but the property also is an essential part of the critical scrub habitat connector between the Cruickshank Sanctuary and the Viera scrub jay population; and development of the property is likely to result in the extirpation of the Florida scrub jay in Central Brevard. She advised the property being considered tonight is included in the Florida Communities Trust Grant application for South Rockledge, which is being finalized by EELS staff for submittal on August 17, 2001. She stated the rezoning is complicated by the fact that the use identified in the DRI may override the lack of compliance with County criteria; it fails to meet the BU-1 zoning locational criteria of Future Land Use Policy 2.8; and the proposed use is not compatible with nearby properties that form the essential scrub corridor between the Cruickshank Sanctuary and the Viera scrub jay populations. She expressed concern about the plans for parcels A-2 and A-3, which were mentioned in a previous meeting; and stated Mr. Kamal explained plans for stormwater retention in Parcel A-3, which would severely degrade the occupied scrub habitat. She stated Mr. Kamal also explained plans for transport of stormwater over parcel A-2 to be zoned EA; but that is not a permitted use for EA according to Section 62-1571 of the Brevard County Code. She recommended finding a creative solution to the rezoning, having additional discussions, and maintaining the scrub corridor. She stated the County is on the verge of losing the South Beaches scrub jay population; and unless the Board insists on a creative solution to preserve the scrub jay corridor, the Central Brevard population will also be lost.

Commissioner Scarborough stated the Board heard the equitable estoppel argument and about the DRI; now the Board is hearing that it may violate certain Brevard County Code; and inquired how the Board can respond. Ms. Bentley responded there are different provisions stating different things including a Comprehensive Plan provision making the DRI and a Development Order that have been signed by the Board relating to use of the property; and the Board has to decide which provisions have priority. She stated there are two acts relating to the particular development that are recent; and at best, the Board has to have balance. Commissioner Higgs stated the applicant represents that they have a permit from the U.S. Fish and Wildlife Service and mitigation land that they have already set aside; and inquired how would that relate to the provisions of the Comprehensive Plan. Ms. Bentley stated the Comprehensive Plan says that the County bows to the federal regulations; and The Viera Company is saying it has the federal permit. Commissioner Scarborough inquired if Ms. Bentley has examined that permit; with Ms. Bentley responding she has not seen the federal permit.

Earl Jacobs requested a corridor be left connecting the Cruickshank Sanctuary to the Viera DRI; and submitted photographs. He stated it does not matter what zoning is there as long as there is a wildlife corridor connecting to the Cruickshank Sanctuary; they could work together to have retail and the corridor; and it would be a shame to lose this chance. He described an aerial photo of the land that is preserved in the DRI and the mitigation outside the DRI, as well as a map showing the DRI conservation areas and scrub jay areas.

Chairman Carlson inquired about the map; with Mr. Jacobs describing the wildlife conservation areas and the scrub jay areas.

Tim Mallow, representing Corei Foundation, presented slides showing the Viera corridor, Plantation Point, and Cruickshank Sanctuary. He stated the Cruickshank Sanctuary is not isolated at this time, but there is no way to go north, east, or west; if both of the parcels to the south are developed, there is no egress to the south; and recommended some solution be found to provide egress. He commented on the Cruickshank Sanctuary, wildlife populations shrinking, large scale landscape corridors, connectivity, and mitigation areas; and recommended the connectivity be maintained to the Cruickshank Sanctuary. He suggested a 100-foot buffer of forest be provided to the periphery of the wetland on the west side to guarantee that upland terrestrial animals that require pine forest, much of which is going to disappear, have a way to get down to the south.

Chairman Carlson inquired if Mr. Mallow wants to put anything on the record about his credentials; with Mr. Mallow responding he is the Director of Corei Foundation which works under a permit from the Florida Game and Fish Commission.

Commissioner Scarborough inquired if Mr. Mallow has shared this information with the applicant; with Mr. Mallow responding no, but he will do so.

Edward Slaney stated this piece of scrub is important because of its location as a link to already protected Cruickshank property, its prime scrub habitat condition, being a core reserve, housing of many or all other scrub species beyond the scrub jays that are found there, its freshwater recharge area capability, and its crucial biodiversity.

Margaret Broussard stated Mr. Mallow's solution is for terrestrial animals, but not for scrub jays or scrub animals. She commented on changes to the County since 1990, loss of scrub jay populations, loss of keystone property on the South Barrier Island to development, status of scrub jay as the County's official bird, and importance of the scrub land on the Viera property. She stated the property is on the CARL Conservation and Recreation Lands List; it is within the core reserve area identified for Florida scrub jays; and it should not be developed. She stated the EELS Committee is in the appraisal process to pursue purchase of the property for preservation; and she supports that purchase by the County as a permanent solution.

Commissioner Scarborough stated what he is hearing is that the singular solution is purchase of the property to maintain the corridor; and inquired if preservation of the corridor would not suffice; with Ms. Broussard responding with only 12.7 acres, any development will cut off the corridor, and the only solution is to buy it and save it.

Ms. Bentley stated when Ms. Bowman was up previously she wanted to submit a letter from Carey Hayo, and the rule is if someone submits additional evidence, which requires additional review by staff, it may result in a tabling or continuation of the item. She stated Ms. Bowman may submit the evidence, but it may result in a tabling. Ms. Bowman inquired about the other things she submitted. Commissioner Scarborough stated if Ms. Bowman submits something that is easy to read, the Commissioners can digest it, but if there are mounds of material, the Board would need additional time. He stated he requested staff share information with the applicant because anything the Board receives, the applicant should be able to respond; and there is a degree of fairness in having everyone know what is in the record. Ms. Bowman inquired if the material submitted will be part of the record; with Chairman Carlson responding they are part of the record. Commissioner Scarborough stated if Ms. Bowman reads a letter from Ms. Hayo, that is one thing, but to reference a letter he has not read is different; and Ms. Bowman can walk the Board through any document she wishes to present. Betsy Bowman stated her presentation walked the Board through the issues that were addressed in Ms. Hayo's letter, so it will not be necessary to submit it for the record.

Commissioner Higgs stated Ms. Bowman also mentioned a letter from the ecologist. Ms. Bowman stated the report is voluminous, and she does not want to submit it if it would result in tabling.

Ms. Bowman stated the federal permit was submitted to staff on April 30, 2001 by Mr. Kamal showing they currently have the right under the federal permit to develop the property. She stated The Viera Company would be willing to entertain purchase by the EELS Committee, but it does not affect the pending rezoning; the rezoning needs to be addressed, and it should be consistent with the Comprehensive Plan; and inquired if the Board will not rezone consistent with the Comprehensive Plan, and the current zoning is invalid, what use is allowable. She stated the rezoning must occur to be consistent. She stated as to any additional buffers or issues of that sort, The Viera Company is not ruling out any of those things, but they are site planning issues and should be entertained at that level; and requested the rezoning be approved at this time. She stated in terms of equitable estoppel, the provisions related to the use of the parcel as well as the wildlife mitigation have been unchanged since 1990, and have been reaffirmed in 1995 and in every amendment that has occurred since then.

Commissioner Higgs stated she understands The Viera Company will be bringing amendments to the DRI to the Board in August or September. Ms. Bowman advised there are one or two pending amendments. Commissioner Higgs inquired if the Board approves this zoning, is The Viera Company willing to entertain an offer to buy and what is the timeframe for the amendments. Ms. Bowman stated the current pending set is scheduled for a hearing on August 20, 2001 by the Planning and Zoning Board and on September 6, 2001 by the Board of County Commissioners; and she has no authority to request anything other than the pending rezoning request, but the door is open for further discussions. Commissioner Higgs inquired if it is possible to discuss amendments in a way for The Viera Company to be more cooperative in getting the property preserved; with Ms. Bowman responding it is possibly too late for those because they have already undergone review by the external agencies such as DCA and the Regional Planning Council.

Chairman Carlson stated Brian Toland has been tracking and tagging the scrub jay population in this area; and requested an overview.

Endangered Species Coordinator Brian Toland stated the 12.7-acre area is part of the largest contiguous sub-population of scrub jays mapped on the mainland of the County; there are an estimated 25 to 30 territories from the Holiday Springs/Viera Boulevard area to Barnes Boulevard; and they have mapped and banded the adults in one scrub jay territory. He stated it is possible the parcel may be developed in a way that might be compatible with the long-term persistence of that family and the corridor from the DRI conservation area up to the Cruickshank Sanctuary. He stated currently the territory does not utilize the overgrown scrub and scrubby pine flatwoods that are adjacent to the industrial and commercial development to the east; there is a two or three-acre part of the property the scrub jays are not currently using; and if 15,000 square feet were developed with some retention and parking, the remaining five or six acres to the west, in between the wetland and the parking lot, would be adequate to allow for the long- term persistence of that family. He stated currently that scrub is in optimal condition; there is an inverse relationship between territory size and territory quality with most species including scrub jays; so in the optimal scrub from Barnes to Viera, most of the scrub jay territories are only eight to ten acres due to the optimal conditions. He stated there is potential to develop and get the designated use out of the land and still have a corridor and scrub jays persisting; and that particular family is well acclimated to supplemental feeding.

Chairman Carlson stated Mr. Toland is saying the property, aside from the wetland, is primary habitat for the scrub jay and is in very good condition. Mr. Toland stated the corridor between the wetland and the more overgrown scrubby flatwoods on the east is optimal, and is well managed by The Viera Company; and the whole system is composed of at least 25 to 30 territories which represent approximately 50% of all the scrub jay territories in Central Brevard County.

Chairman Carlson requested Ms. Bentley outline the Board's options.

Ms. Bentley stated protecting the environment is beyond her expertise; but when it comes to the Comprehensive Plan and the Development Order, there is consistency with the Plan and the Board has to allow a use of the property. She stated if the existing zoning is inconsistent with the Comprehensive Plan, the Board must give it a zoning that is consistent; in this case, that does not leave much variety; and the Development Order provides that it is retail. Chairman Carlson inquired if BU-1 is consistent; with Ms. Bentley responding yes.

Chairman Carlson stated the Board has been shown pictures and listened to Mr. Toland's testimony; it would like to be able to see the EELs Program purchase the land; but unfortunately, there are no guarantees, although it is in appraisal state right now. She inquired if the applicant would be willing to keep any commercial development to the far east of the property to provide a wildlife corridor sufficient to allow the passage of wildlife and continue the jay population. Mr. Kamal stated the applicant is agreeable to that in concept; they would like to obtain the zoning; and the other issue would be appropriately discussed during the site planning process. He advised The Viera Company will be in front of the Board for future amendments; and this may be an issue that can be discussed at that time. He stated they do not have imminent development plans; but it is important to obtain the zoning that was promised during the DRI process.

Commissioner Higgs inquired if at this point there is a plan to sell the property or is there a contract for sale; with Ms. Bowman responding there is no contract at this time. Commissioner Higgs inquired if the company is still in a position to negotiate with the Board on these issues; with Ms. Bowman responding affirmatively.

Commissioner Colon requested Mr. Kamal state for the record everything that has been done to show good faith. Mr. Kamal stated in the DRI there were approximately 282 acres plus an additional 12 acres set aside for mitigation; as they went through the permitting process for the U.S. Army Corps of Engineers, there was additional acreage set aside outside the DRI for a total of 400 acres of upland preserved; and all the pictures and statements concerning how good the habitat is are due to the fact that The Viera Company set the property aside and successfully managed and maintained it for several years. He stated the maintenance includes rotating prescribed burns for these areas as well as mechanical clearing; as part of the permit conditions there is a detailed monitoring program, which is submitted to the U.S. Army Corps of Engineers and the U.S. Fish and Wildlife Service; and they have been very successful in those programs, increasing the scrub jay population in the area.

Commissioner Scarborough stated the DRI applicant can come in with deviations to the DRI; and inquired if the County is allowed to proceed with deviations. Ms. Bentley responded there is no procedure for that set out in the Statutes. Commissioner Scarborough stated that is very one-sided; with Ms. Bentley responding it is. Chairman Carlson stated her question was whether, if there were new regulations or new research about scrub jays, the County could go into the DRI and change anything. Commissioner Scarborough stated this may be an issue the Board may want to bring before the Florida Legislature to have some equality; knowledge and capacity to understand these things is constantly increasing and issues come up; and the County is always required to act fairly and justly, but it is a one-side discussion.

Chairman Carlson stated the Board is interested in trying to establish and keep the connection for the wildlife passage from the Cruickshank Sanctuary; the community invested in the purchase of the Sanctuary property to preserve the endangered habitats that exist there; and it is in the public's best interest to establish the corridor. She inquired if the Board can set a condition of the zoning that the communication occurs; with Ms. Bentley responding the Board can request it. Chairman Carlson stated the Board is more or less required to rezone the property; hopefully the County will be able to afford to buy the property at some time; in terms of the connectivity issue, she would like to see the applicant sit down with the County at the site plan stage to make sure the property is being utilized to preserve the species involved; and inquired if Mr. Kamal agrees with that. Mr. Kamal stated they will sit down with staff and work toward that goal; and that is the commitment of The Viera Company to have that communication.

Commissioner Higgs stated she referenced a meeting with Mr. Babcock where he explained most of the information that has been presented; and there was discussion about the CDD mechanism that is part of the Viera DRI and that funding. She stated they discussed the potential for the Board to consider an amendment to the DRI that would add land to the DRI to offset the loss of this commercial property; and Mr. Babcock indicated a willingness to discuss those types of changes. She stated the Board can require the site plan to come back before it for approval; it has been done on some other properties; and that would provide another opportunity to look at this. She explained the review process for developments of regional impact; stated the reviews have been extensive; and no one really likes the place the Board is in tonight.

Commissioner Colon stated the developer has come before the Board many times and tried to do everything within his power to work with it; and expressed concern that the Board is going to take action on a property it is considering buying. She inquired what would happen if there was a potential buyer who offered more money; would the County deny the rezoning because it wanted the property at a particular price; and noted she is talking about taxpayers' money. She stated she is uncomfortable being in the position of telling The Viera Company whether it has to sell the property or go out to the best bidder; and she is trying to figure out what The Viera Company is saying. Chairman Carlson requested Ms. Bentley clarify the Board's legal position. Ms. Bentley advised the fact that the County might be interested in buying the land cannot be considered as a part of the rezoning; the Board has to consider the item based on the basic zoning criteria; and denial because the Board wants to buy the property is not a legal possibility.

Commissioner Higgs commented on the Board's failure to approve a habitat conservation plan, the Board approving the Viera DRI, The Viera Company mitigating and getting federal permit, and Comprehensive Plan bowing to the federal permit. She stated she is not sure the Board can do anything lawful except approve the request of the applicant with the understanding the Board will review the site plan. She stated the applicant has represented willingness to continue to work with the County and recognize the problems including the ability of the species to survive.

Motion by Commissioner Higgs, seconded by Commissioner Colon, to approve Item 1 as amended by the applicant for BU-1 on Tract A-1 and Tract A-3 and EA on Tract A-2 with a Binding Development Plan. Motion carried and ordered unanimously.

Commissioner Higgs stated the County is going to work with The Viera Company to move this forward.

The meeting recessed at 6:48 p.m. and reconvened at 7:12 p.m.

PUBLIC HEARING, RE: ZONING RECOMMENDATIONS OF THE JULY 9, 2001 PLANNING
AND ZONING BOARD MEETING

Chairman Carlson called for the public hearing to consider zoning recommendations of the Planning and Zoning Board, made at its July 9, 2001 meeting, as follows:

Item 18. (Z0107401) Dr. Heidar Heshmati's request for Small Scale Plan Amendment from Residential to Mixed Use District and change from RU-2-10 to BU-2 on 10 acres located on the west side of Burnett Road, approximately 203 feet south of S.R. 520, which was recommended for approval by the LPA and for approval by the Planning and Zoning Board with a Binding Development Plan to include a 100-foot buffer on the west and south property lines, all access limited to Burnett Road, animals may only be kept outside during daylight hours; and the use be limited to a pet adoption center only.

Commissioner Colon stated there are two sides to this issue, the people who are bringing it forward and the residents; she would like there to be a dialogue between both parties; and instead of having everyone sit here, the best thing would be to table this to give an opportunity for discussion to see if they can reach some kind of compromise.

Chairman Carlson stated the applicant's attorney met with the constituents; she met with the applicant and they had some concessions they were interested in making; and she does not know if it needs to be tabled.

Commissioner Colon stated when this comes up again, she is going to recommend it be tabled.

Commissioner Higgs inquired if the attorney representing the applicant is present as she would hate to table the item without the applicant's representative being here. Commissioner Colon advised they are outside. Commissioner Higgs recommended giving them a few minutes to discuss the issues and then see what comes from that.

Item 20. (Z0107403) Barry R. and Betty Earlene Ranew, as Co-Trustees' request for change from RR-1 to BU-1-A on 1.03 acres located on the east side of Murrell Road, approximately 800 feet north of Barnes Boulevard, which was recommended for approval by the Planning and Zoning Board.

Chairman Carlson stated she had a request for Item 20 to be tabled due to the lengthy agenda.

Motion by Commissioner Higgs, seconded by Commissioner Colon, to table Item 20 to September 6, 2001. Motion carried and ordered unanimously.

Commissioner Higgs stated a representative of the Humane Society is present; and suggested finding a room where they can meet with the applicant to see if some things can be worked out.

Chairman Carlson stated Commissioner Colon is interested in insuring there is a dialogue between both sides; and inquired if the applicant is willing to do that or would he prefer the item be tabled. Attorney Mike Minot stated he would prefer to have discussion and then come back later on the Agenda; there was discussion at private meetings on Tuesday; but there are additional items, which can be discussed. He stated he would prefer to have the item heard this evening as there are a lot of people present. Chairman Carlson requested staff provide a room for the group to meet.

Commissioner Colon stated if both parties come back and there is no agreement, her recommendation will be to table the item; and her track record is if two people are not happy, they need to sit down and discuss the issue until there is some kind of compromise. Mr. Minot stated he met with a group in West Cocoa on Tuesday evening; and there are things he is bringing to the table this evening as a result of that. Commissioner Colon stated hopefully it will be positive. Assistant County Manager Peggy Busacca advised the group may meet in the Atlantic Room on the second floor.

FINAL ENGINEERING APPROVAL, RE: SAWGRASS SOUTH SUBDIVISION, PHASE I

Assistant County Manager Peggy Busacca stated there have been questions about Item III.A., Final Engineering Approval for Sawgrass South Subdivision; that item has been withdrawn by staff; and it will not be considered until August 28, 2001 at the earliest. She stated the item is not the same as the rezoning, but only the final engineering approval.

Item 2. (Z0104405) Fred D. Boozer, Jr., Trustee's request for change from BU-1 to BU-2 on 1.71± acres located on the west side of U.S. 1, immediately opposite of and north of the west end of Ruby Street, which was recommended for approval by the P&Z Board with a Binding Development Plan limiting use to a mini-warehouse facility only, and concept plan to include a buffer along U.S. 1.

Vaheed Teimouri, Engineer representing the applicant, stated there is a 1.7-acre parcel on U.S. 1 immediately north of Florida Memorial Gardens, between the railroad and U.S. 1; and they applied for rezoning in February, 2001 from BU-1 to BU-2 with a binding development plan and use as ministorage facility. He stated the Planning and Zoning Board and staff requested an environmental study on the property; and it was determined there was some wetland; however, the size, location, and condition of the wetland resulted in it having no value as a habitat, flood protection, or anything of that nature. He stated they believe the wetland, which is along U.S. 1 near the ditch, was created when the ditch was cleaned and spoil was deposited on the bank, creating a low area where plants started growing. He stated there is a 12-foot drop from the railroad to U.S. 1; and it is hard to imagine that water gathers there without any sort of obstruction. He stated the Planning and Zoning Board requested a bit more setback on the front; they provided as much as they could on the site; and described the configuration of the site. He stated the rezoning is compatible with the surrounding neighborhood; the properties along U.S. 1 are all zoned BU-1; beyond that is residential use; and the use for the property will be very low-intensity commercial as mini-storage.

Chairman Carlson stated she has two issues with the property; the first has to do with Policy 5.2.f.3 of the Conservation Element which speaks to the issue of a property being substantially surrounded and qualifying to have wetlands preserved onsite or developed; and this property does not meet that criteria, so the wetlands would have to be preserved. She stated there is also a problem with the compatibility issue because there is no other BU-2 around, although there is some BU-1, EU, and AU; the only thing that is closely compatible is the IU across the railroad track; and she does not feel the property is compatible. Mr. Teimouri inquired if that is true even with a mini-storage facility. Chairman Carlson inquired if the Board created zoning for mini-storage because of the low traffic and all that; with Mr. Enos responding the Board chose not to do that. Chairman Carlson stated the requested zoning is incompatible with the existing area around the property; if the rezoning was approved, it would be necessary to conserve the wetland; and the site plan that is included in the packet would not be possible. Mr. Teimouri stated if the wetland must be preserved, the property is useless; and inquired if the railroad and U.S. 1 are not considered development; with Chairman Carlson responding no. Mr. Teimouri inquired if the north side gets developed, would that qualify; with Chairman Carlson stating on the north side is a billboard, which is commercial development; but unfortunately it was established in 1997. Mr. Teimouri inquired if a development was put there, would the wetlands be considered substantially surrounded; with Ms. Busacca responding not under the definition. Debbie Coles of Natural Resources Management advised it would have had to be substantially surrounded as of February 23, 1996. Mr. Teimouri stated the Board is telling him regardless of the zoning, the property is useless. Chairman Carlson stated it is not useless as someone may come along who may want a different use than what the applicant is interested in. Mr. Teimouri commented on access to the rear of the property. Chairman Carlson stated BU-2 is incompatible; and Mr. Teimouri may withdraw or the Board will make a motion. Mr. Teimouri withdrew the request.

Item 3. (Z0103410) A. Duda and Sons, Inc.'s request for change from PUD to RU-1-13 with a BDP limiting density to 3.1 units per acre, on 84.348± acres located due east of St. Andrews Isles Subdivision and due south of Waterford Place, which was recommended by the P&Z Board for approval with a Binding Development Plan as offered by the applicant.

Chairman Carlson stated the rezoning is for Sawgrass, Phase 3; she met with the applicant and numerous citizens on this issue, and received numerous letters, email and petitions; and the community in the area is very charged up about this issue, primarily focused on the school overcrowding issue. She stated the item was tabled previously to allow the Board to research some of the school overcrowding issues, traffic circulation, and environmental concerns, and to look at the Comprehensive Plan. She stated since it was tabled, the Board held a school capacity workshop and has been seriously educated on what the School Board has to deal with as well as getting presentations from Palm Beach County and Orange County. She stated they have received a lot of data from the School Board regarding the current status of schools in the immediate area around Sawgrass; and data indicates there are overcrowded conditions in Suntree and Long Leaf Elementary Schools and in the schools they feed into such as Satellite High School. She stated the applicant will have ten minutes, the public comment will be taken, and then the applicant will have five minutes rebuttal.

Richard Torpy, representing the applicant, stated they too have done research; the item was tabled at the last meeting to research the school overcrowding issue; and since that time the School Board has voted to spend approximately $50 million on schools to address the overcrowding issue. He stated unfortunately what the School Board has not done is part two, which will happen in September where they will revisit the issue as far as coming up with an actual proposal to deal with new schools, where they will be built, and what is going to be done with existing schools; because of that, they cannot proceed on the school overcrowding issue this evening; and requested the item be tabled until after the School Board's September meeting. He stated they have learned that although there may be school overcrowding in some schools in Viera, there are other schools in the County that are not overcrowded; and the issue may be one of simply redistricting. He stated if the school overcrowding issue is the prevailing issue for the Board, until the School Board makes its final determination in September, it is not possible to present the appropriate evidence that is needed on that issue. He reiterated his request for the item to be tabled until after the School Board's September meeting.

Chairman Carlson inquired if the Board has any latitude to allow the public to speak; stated the item has been tabled twice; and there are a lot of people who have wanted to speak. Assistant County Attorney Eden Bentley responded it depends on how the Board handles the motion. Chairman Carlson stated she would prefer to allow public comment and then consider tabling after public comment, if the Board will allow that. Mr. Torpy inquired if after the comments, he will potentially be asked to make his presentation. Chairman Carlson stated Mr. Torpy may rebut any comments.

Commissioner Scarborough stated if the Board is going to take the comments to accommodate those people who are here who may not be able to come back later, with the certainty that the Board will table the issue, the applicant has the ability to approve taking the comments; but if the Board has not determined whether or not it is going to table, then the applicant would need to put his full case forward in case the Board decides not to table. He stated it is up to the Board whether it is holding its decision in abeyance or deciding to table; and since it is in District 4, he will listen to the opinion of Chairman Carlson.

Chairman Carlson inquired is the Board required to table an item if the applicant requests it; with Ms. Bentley responding no. Chairman Carlson stated after the Board hears from the public, she will see if it is interested in tabling the item or applying some sort of zoning. Mr. Torpy stated this is a quasi-judicial proceeding; the Board tabled the item on the issue of overcrowding, which is still pending by the School Board; and he has met with the residents and doing everything as an applicant to address the Board fairly. He stated sitting back and not making their case is putting the applicant in peril; he has told the Board he cannot proceed because the School Board has not made a determination; and this needs to be tabled so he can make a full and fair presentation. He stated if the Board wants to hear the public comments as a convenience to the people tonight, he understands that, but it is fundamentally unfair to tell the applicant he has to sit at his peril when he has told the Board he is not prepared, and then the Board decide later whether it is going to table or not. He stated the appropriate procedure would be to give the applicant an assent that the Board will table and then accommodate the public for comment, if the Board would like to do that; and he is aware of no rules that would prevent the Board from doing that.

Commissioner Colon inquired if Mr. Torpy knew he was going to base it on that, why did he not decide to table it before the meeting so everyone would have a heads up that it was going to be tabled and the residents would not be here. She inquired why does Mr. Torpy feel he has to base it on that, and what has changed. Mr. Torpy stated as of Friday, when he was meeting with the residents, there was confusion as to what action the School Board had and had not taken; he had to get public records requests from the School Board to review those documents, which took some time; and he finally got those last week. He stated he has met with all of the Commissioners over the last couple of weeks; there was confusion as recently as last Friday over the School Board's action; and it was not until yesterday that he got in touch with the School Board to find out there was still work to be done. He stated he does not want to give the impression that the School Board approved a $50 million item based on the proposal he saw in the public records; and School Board member Rich Wilson clarified the School Board's position. He stated they did not have an idea about this until late yesterday afternoon, and then had to get their staff together to discuss appropriate action; originally they opposed the tabling because the School Board was nowhere near any kind of decision; however, in the last month, the School Board has come closer to a clear resolution. He stated if that is the concern, there is no reason not to wait until the School Board makes its decision; the issue of school overcrowding may go away; the School Board may come up with a proposal that satisfies the parties; and he is not prepared to move forward.

Chairman Carlson stated she does not see a problem with talking about potentially tabling it, but it is important to hear the comment for the public record; this has been tabled twice; and if there are any suggestions, she would like to hear them.

Commissioner Colon stated she would like to make sure the Board is fair this evening; the residents have taken the time to come out; and the Board did not hear until just now that Mr. Torpy would like to table the item. She stated if the Board is going to agree to table it, then there should not be any decision made after the residents speak; and the Board should make that clear before it goes into public comment. She stated she is uncomfortable saying it will be tabled, allowing the residents to speak, and then voting based on what the Board has heard.

Commissioner Higgs stated she would like to hear from the residents regarding the issue on the table; and if the Board determines it is not going to table, the applicant gets to make a full presentation. Ms. Bentley advised that is an orderly approach.

Chairman Carlson inquired if the applicant understands. Mr. Torpy stated the issue of tabling was brought up at the meeting last time by the Board, which is not much different than what he is doing this evening. He stated he understands it is a long tough issue; the applicant has been working on this for almost a year counting the application period; and he understands the Board is saying it is going to take public comment first and then decide whether or not to table the item. Chairman Carlson stated that is correct; and if the Board is going to make some decision, Mr. Torpy will need to make his full presentation. Commissioner Higgs stated first the Board is going to talk about whether or not to table. Chairman Carlson inquired if there is a motion to table the item; and no motion was heard. Mr. Torpy inquired if he will have an opportunity to address after public comment. Ms. Bentley stated if the Board is not going to table the item, the normal procedure is to have the applicant speak.

Discussion ensued on whether the item is to be tabled and order for speakers.

Ms. Bentley stated if the Board is going to follow its normal process, the process is to have the applicant speak; the applicant has 15 minutes; and the time can be divided as Mr. Torpy wishes.

Commissioner Scarborough stated Mr. Torpy has said he would like this to be tabled; rather than hearing Mr. Torpy's presentation, the Board can hear the public; and if the Board makes a decision not to table, then Mr. Torpy can speak. Ms. Bentley stated the rules provide for the applicant to speak first, but Mr. Torpy may be willing to waive that. Mr. Torpy stated he would not mind speaking after public comment because he would prefer the Board move on the issue of tabling as he is not prepared legally to move forward with the facts that have been raised by the Board.

Chairman Carlson noted the issue is not just overcrowding, and there are other issues. Mr. Torpy stated he understands, and is prepared to address the other issue; but he is not prepared on the issue of school overcrowding; and he prefers to reserve the whole 15 minutes until after the public speaks.

Discussion ensued on how the 15 minutes may be divided by the applicant.

Chairman Carlson called on Tom Myers, followed by Bill Kerr. Mr. Torpy advised they are with the applicant.

Steve McGeary, Vice President of the Suntree Master Homeowners Association, read a statement from the Board of Directors of the Suntree Master Homeowners Association expressing concern about increased traffic, specifically along St. Andrews Boulevard, impact to already overcrowded schools, burden on the overtaxed water supply, negative environmental impact, lack of planned public areas, no substantive landscape buffer along borders of community as part of developer's site plan, and negative effects on property values of existing homes in the area; and extending appreciation to Mr. Jelus and Mr. Torpy for scheduling community meetings to discuss relevant issues. He stated it is the position of the Association that it stands firmly behind its residents and urges the Board to listen to the concerns.

Jerry Thompson stated he attended the meeting with the developer; and commented on the change in the site plan, concerns about school capacity, and traffic concerns. He noted the Sawgrass community is not part of Suntree; it does not belong to the Master Homeowners Association; and the only benefit of extending St. Andrews Boulevard south is as a promotion tool for Sawgrass to say it is part of Suntree. He stated he would like to see the Pineda Extension connected to Sawgrass Phase 3; the developer has promised there will be no construction traffic through Suntree; and he would prefer to not connect St. Andrews until there is an interchange with I-95. He commented on opposition to widening of St. Andrews or Interlachen, buying a home based on current configuration of the community, changes to the site plan, and binding development plan limiting number of houses.

Commissioner Colon inquired if the Board of Directors of the Master Homeowners Association was mixed on the extension of St. Andrews Boulevard. Steve McGeary responded the Board is looking into taking a poll of the community; feedback from the majority of the people living in that portion of Suntree is against extension of St. Andrews to the Pineda Causeway; but there are some people who live north off of Interlachen who have to go north on I-95 who see the benefit of a southern connection. Commissioner Colon stated she was interested in the Board; with Mr. McGeary responding the Board has not made a decision. Commissioner Colon inquired if the Board members were mixed; and stated she was told that no one wanted to take a vote and that it was mixed. Mr. McGeary reiterated the Board has not taken a position; and it wants to inform the community and get more input. He advised at least one member of the Board has voiced an opinion against the connection and at least one has voiced an opinion for the connection; but the rest have not made a decision. Commissioner Colon stated she had not heard of anyone who was in favor of it, and wondered about the information she heard.

Tracey Post, resident of Suntree, expressed concern about the expansion of the existing Sawgrass development by over 250 homes; and submitted a petition signed by 313 members of the Suntree community. He read aloud the petition expressing concern about the negative impacts of the continued unchecked development at the southern end of Suntree and the proposed Pineda Extension area including: (1) strain on roadway capacities, (2) strain on the already overcrowded schools serving this area, (3) negative impacts on property values of existing real estate, (4) negative environmental impacts, (5) negative effects on existing water management and stormwater drainage, (6) lack of compatibility of proposed housing with existing neighborhoods, specifically deed restrictions that do not mirror Suntree covenants, inadequate buffer tracts, and lack of commitments for elevation compatibility between neighboring subdivisions, and (7) lack of compatibility of proposed RU-1-13 zoning with neighboring Grand Haven and Suntree, which are zoned PUD. He urged the Board to deny the rezoning request and to slow or block further development in the area pending development of a plan for educational services. He outlined the documents submitted.

Lidia Lynch, President of Suntree Estates Homeowners Association, stated school overcrowding is not the only issue; history shows that the developers main objective is to make a profit; and it appears everything is expendable in their march toward growth. She stated Sawgrass South abuts the Pineda Extension and the developer's other project, Grand Haven; and it would be shorter and more convenient for the developer to connect to the Pineda Extension only. She stated the only reason the developer is adamant about connecting to St. Andrews Boulevard is to falsely promote Sawgrass as part of Suntree; but none of the Sawgrass developments are a part of Suntree. She commented on capitalizing on the Suntree good name, Suntree recreation areas being maintained by dues, negative impact of the new development to quality of life and safety, and effect of the development on home values. She advised of added traffic being a safety hazard to children; requested the parcel be zoned GU rather than RU-1-13; and if further development is approved for this location, reject the request for a connection to St. Andrews Boulevard.

Jim Bennett, stated he is the Suntree Master Homeowners Association Board of Directors' member who is fully and openly opposed to the connector; he is the father of two who will be at Suntree Elementary School in the fall; and his first concern is the impact Sawgrass Phase 3 will have on local schools. He commented on the School Board's plan not addressing the issue of overcrowding of school infrastructure, request for enrollment projections, and projections showing Suntree, Long Leaf and Ralph Williams Elementary Schools being in overcrowded conditions. He noted the overcrowding only accounts for current enrollment and does not take into account the nearly 2,500 homes under construction in Sawgrass and Grand Haven; the $50 million COP does nothing to address any of the current construction; and the County's legal counsel advising the Board has every legal right to deny the rezoning based on school overcrowding alone. He expressed concern about water management, destruction of wetlands and open space, damage to the fresh water supply, possible salt water intrusion, demand of another development on water and sewer systems, and water pressure in Suntree. He stated Sawgrass has no public use areas; and it is apparently going to depend on the parks, playgrounds, and sports fields paid for by the Suntree PUD and maintained by the Suntree Master Homeowners Association. He commented on the developer's failure to keep promises; and requested the Board deny the rezoning request and zone the property GU. He noted if that does not meet the developer's satisfaction, he can choose not to purchase the land.

Sue Sawyer submitted a petition with signatures of people living in the Suntree area as well as the signatures of administration and teaching staff of Suntree Elementary; and commented on the school overcrowding. She stated during the workshop last week, it was evident the County does not want to be in a position of rectifying grossly overpopulated school communities; the Board has an option to be proactive rather than reactive in that it can choose to put irresponsible growth on hold; and the community wants well-informed, well-intentioned growth to create a safe and nurturing community. She stated very few homes are currently completed in the original Sawgrass; they have not begun to experience significant impact; there are 39 homes with 57 children in Suntree Estates, 109 homes with 94 children in Waterford Place, and 49 homes with 30 children in St. Andrews Isles; and commented on the School Board projection based on the 1990 census of one child for every three homes. She commented on the overcrowding at Suntree, Long Leaf, and Ralph Williams Elementary Schools, and quality of life; and requested the extension of St. Andrews Boulevard not be granted and no more development be approved in the area.

Denine Chang inquired if she speaks now, and this item is tabled, can she come back to speak again; with Chairman Carlson responding affirmatively. Ms. Chang inquired if she defers now and the Board decides not to table the item, can she speak after the applicant; with Chairman Carlson responding if Ms. Chang does not speak now, she will have lost her opportunity to speak.

Ms. Chang stated she resides in the new Sawgrass neighborhood; on July 25, the developer advised the only reason he wants to build Sawgrass South off of St. Andrews Boulevard is to capitalize on the good standing of the Suntree name; and this is a callous response to the many concerns the developer has heard from the residents of Suntree. She commented on the unique qualities of Suntree such as large open areas, mature trees, yards with varying elevations, houses that back up to golf courses or natural lakes, and meandering streets; and stated the developer promised that Sawgrass would be similar to and compatible with Suntree; but Sawgrass has perfectly straight streets, flat yards, square lakes, lack of mature trees, no open areas, and no playgrounds, so the promise was not kept. She commented on the failure of the developer to keep his promise that Sawgrass would be held to 291 homes, with large trees, and abiding by the Suntree covenants and Homeowners Association laws; and advised of noncompliance with the St. Johns River Water Management District mandates. She requested the Board not let the greed of one developer ruin the Suntree neighborhoods and quality of life; and stated if the extension of St. Andrews Boulevard to any Sawgrass neighborhood is allowed, she fears further extension to the Pineda Causeway, and if the I-95 interchange is completed, traffic will use St. Andrews Boulevard to get to I-95. She requested the Board not allow any further extension of St. Andrews Boulevard; and if the Board elects to allow the rezoning, a condition be set allowing ingress and egress from the Pineda Causeway only.

Mark Sawyer stated the greatest responsibility of the Board is to act in the best interest of the citizens of the County; and in considering the connection of St. Andrews Boulevard to the Pineda Extension and authorization of the proposed Sawgrass South development, it is imperative that the Board act in the interest of sustaining and improving the quality of life for its citizens rather than yielding to the special interest of developers. He commented on increased traffic flow, St. Andrews becoming the Wickham Road by-pass, quality of life concerns, safety concerns, delays, need for additional traffic control measures at intersections, enforcement measures, and noise. He stated currently Suntree has not experienced the impact of 400+ homes that have already been approved in the Sawgrass and Grand Haven developments; the development being considered is more than three times that size; and the development should have been predicated on the completion of the I-95/Pineda interchange. He stated the Pineda exchange is essential to supporting the traffic volumes of such a large development without devastating the existing Suntree infrastructure; and requested the Board disallow the connection of St. Andrews Boulevard to the Pineda Extension and delay the development of the land until the completion of the I-95 interchange at Pineda. He recommended the Board require proper infrastructure to be put into place to insure successful integration of the new developments within the North Melbourne community.

Albert Vaccaro advised of the quality of life in Suntree; expressed concern that such quality of life would be impacted if the St. Andrews access to the Pineda Extension is built; and described the current configuration of St. Andrews Boulevard and the planned extension. He expressed concern that the connection will be used as a bypass route to Wickham Road for those vehicles using I-95 to get to the new Wal-Mart, theaters, and other businesses; and stated it would allow vehicles from Viera heading south to bypass that corner of Wickham. He expressed concern about traffic increases, widening of St. Andrews at Interlachen, safety concerns, and danger to wildlife; stated he is opposed to extending St. Andrews Boulevard at this time; and the only reason a developer desires to extend St. Andrews Boulevard is to associate Sawgrass South with Suntree. He commented on the sign at the entrance of Sawgrass, Sawgrass not being part of Suntree, and Pineda Extension as access to Sawgrass. He stated the developer requested the item be tabled until the school issues can be addressed; in order to be consistent, if the developer has other items for Sawgrass or Grand Haven, he must also face the same school issues; and recommended those items also be tabled until the school issue is resolved. He reiterated his request that the development only be built after all quality of life issues, wetland issues, and school issues for the Suntree communities have been addressed, and there be no impact to St. Andrews Boulevard.

Anne Salemmo stated the community is overwhelmingly opposed to any extension of St. Andrews Boulevard to Sawgrass South due to concerns about additional traffic; there are seven communities lining the one mile stretch of St. Andrews Boulevard from its intersection with Interlachen to its terminus; the six Suntree communities comprise a total of 442 home sites; and Sawgrass at Suntree contains 337 lots, with Sawgrass South, Phases 1 and 2, which have already received approval comprising another 67 lots. She advised of increased traffic, noise, and speeding; and expressed concern about safety. She commented on trip numbers and direct access for Sawgrass to Pineda Extension; and requested a binding development agreement for any project approved for this parcel include wording that all access and egress to and from the site will be solely and exclusively by the Pineda Causeway Extension. She stated Mr. Torpy said at the July 10, 2001 meeting that there is no proposal to continue St. Andrews Boulevard further to the east and whether or not St. Andrews Boulevard is ever extended is not the applicant's decision, but the Board's. She requested the Board listen to the voice of its constituents who live in the area and who will be impacted by the decision made about the rezoning; and further requested the Board not permit any extension of St. Andrews Boulevard.

Ray Reeves read aloud portions of statements made by Attorney Richard Torpy at the July 10, 2001 meeting concerning extension of St. Andrews Boulevard as access to Sawgrass South Phase 1, concern about future alignment of St. Andrews Boulevard, the decision being that of the Board not the developer, and that the developer is entitled to proceed without the further delay of the larger issue of St. Andrews Boulevard. Mr. Reeves stated Sawgrass is not part of the Suntree PUD or the Master Homeowners Association; and there is a planned construction entrance off Pineda, which can serve as total access to Sawgrass South. He outlined property values in Sawgrass at Suntree, St. Andrews Isles, Grand Haven, and Suntree Estates; and commented on compatibility and extension of St. Andrews Boulevard. He stated if the Board ever permits Sawgrass, it should require it to enter off the Pineda Extension; and recommended the Board delay any consideration of extension of St. Andrews Boulevard to the Pineda until after the I-95 interchange is finished.

Chairman Carlson stated Item II.B.18 has been withdrawn.

The meeting recessed at 8:30 p.m. and reconvened at 8:42 p.m.

Mary Sphar, speaking for Sierra Club Turtle Coast Group, expressed concern about degradation of wetlands and lots not having enough buildable uplands for the residential units; and advised of the provisions of Conservation Element Policy 5.5 from the 1999B Settlement. She inquired if the County is prepared to enforce the new policy, to what extent will the functionality of the wetlands incorporated into stormwater systems be compromised, and would it be wiser to ask the applicant to avoid impacts to wetlands and surrounding buffers. She stated Policy 5.2.(3)(1) provides that residential property which includes wetland areas shall be subdivided in such a way that buildable areas are included in each lot, and subdivided lots shall contain sufficient uplands for the intended use and for any buffering necessary to maintain the function of the wetlands and shall be compatible with adjacent uses. She stated the latest concept plan still contains some lots with insufficient uplands, although the number of lots has been reduced; and the proposed design conflicts with the Comprehensive Plan Policy to the extent that lots without buildable area are included. She noted if the Board makes clear its expectations now, it will minimize conflict as the land development process progresses. She stated the latest preliminary design raises questions and concerns about compliance with certain Comprehensive Plan wetland policies; and these issues should be addressed before zoning change is granted.

Frank Rockwell stated he and his wife are residents of Suntree, but are moving to St. Andrews Isle; and commented about the compatibility review by Planning Partnerships that was commissioned by the Board, and the use of St. Andrews Isle's water retention by Sawgrass causing some private property issues. He stated the lake surrounding St. Andrews Isle is the property of the residents; it is for their exclusive use; and they pay to maintain the lake and have full responsibility for liability. He stated the Sawgrass site plan does not create any waterfront lots; the compatibility study is incorrect in that it says the lake extends to the property boundary of St. Andrews Isle which it does not; and typically the water's edge to the boundary of St. Andrews Isle ranges from nine to eleven feet. He advised the developer cannot encroach on the lake or sell the lots as waterfront lots; the residents who purchase in Sawgrass cannot use the lake; and commented on liability issues in terms of the lake. He stated the property was surveyed in June showing that the lake is within the St. Andrews Isle boundaries; and requested, if the Board grants the rezoning for Sawgrass South Phase 3, the following language be required to be included in any binding development agreement for Sawgrass South Phases 2 and 3: "Prior to the commencement of any home construction, a 25-foot buffer tract shall be established on the entire boundary of Sawgrass South Phases 2 and 3 between the individual homeowners' lots and the property of St. Andrews Isle, excluding wetland A as currently constituted. The buffer tract should include an earthen berm at least six feet high measured from either side of that berm, planted with an opaque vegetative screen; and the installation, landscaping, irrigation, and maintenance of the buffer tract including the berm and vegetation shall be the responsibility of the Sawgrass developer."

Melissa Hoaglund stated when the Board considered this matter on May 24, 2001, she planned to speak concerning the School District's response to the Board's request for information; but Mr. Torpy requested the item be tabled, citing his lack of time to review Mr. Knox's opinion and the consultant's report. She stated the School District, in its reply to the Board, said, "Brevard public schools do not have the permanent building capacity or funding for the additional classroom capacity to serve the anticipated student projections generated from this development; the District's proposed authorization of $50 million in COP's does not change this situation; and the stated purpose of the COP's is to replace portable classrooms on campuses around the County." She commented on the construction plan for the COP funding, children from the 2,500+ new homes not included in projections, action on the COP's having no bearing on the accommodation of children who will be entering the system as a result of new development, and school services being addressed in three sections of the Comprehensive Plan. She advised the County Attorney's May 21, 2001 memorandum indicates the Board is within its legal authority to rule on zoning issues on the basis of school capacity; Orange County has denied rezoning requests on this basis with successful defense to legal challenges; and the Board has the authority to deny this request tonight. She expressed opposition to the rezoning; and advised of a letter to the Assistant County Manager outlining the residents' concerns. She requested the Board zone the parcel GU as RU-1-13 is not consistent with the Comprehensive Plan standards in Chapter 13, Policy 1.3(f); and stated GU allows use of the land. She stated the property in question is not part of the Suntree PUD and located adjacent to the Pineda Extension; and any further development in this area now and in the future should be accessed via the Pineda Extension as St. Andrews Boulevard is not designed to handle such traffic volume. She requested the access roadway to the parcel be located east of the eagle's nest to avoid impact to the nest and the adjacent wetlands; and expressed opposition to the connection of St. Andrews Boulevard to the Pineda Extension at this time. She stated any plans to build over the remaining wetlands are unacceptable; the 400-yard radius around the bald eagle's nest protects the nest, but not the land the eagles need to hunt; and the wetlands provide the last refuge for native wildlife in the area. She requested those in opposition to the rezoning to stand; and a group of people stood. She stated the residents are not opposed to growth, but want a logical, intelligent, proactive approach, which guarantees adequate services and preservation of the quality of life. She requested the rezoning be denied and the property zoned GU with access via the Pineda Causeway.

Jeff Arent expressed appreciation to the Board for the time and effort spent on the item; and stated the main issue is the GU zoning, followed by opposition to the extension of St. Andrews Boulevard to Pineda. He stated the opposition to the rezoning is based on overcrowded schools, excessive use of natural resources, overtaxed roads, and elimination of wetlands and wildlife. He commented on the lack of professionalism, game playing, pulling plans, and threats of lawsuits on the part of the applicant. He stated if the Board decides to go along with the Suntree community and its newfound Sawgrass friends, and it is threatened by a lawsuit, the community will stand by the Board's side.

Chairman Carlson inquired if the Board wants to allow the applicant to speak. Commissioner Scarborough stated if the Board does not table the item, then it would go to the next segment.

Chairman Carlson stated she would like to proceed with the applicant giving his testimony and any rebuttal remarks.

Attorney Richard Torpy requested an extension of time; stated they are prepared to respond to the comments made tonight; but there is no way they can adequately put the facts on record to support their position in the time limit. He requested a 15-minute extension of time to put forth the four experts to testify to all the factual issues that have been brought up this evening.

Commissioner Scarborough stated normally the Board allows 15 minutes, and if the time is used prudently, it may allow more time; but if time is being wasted, the Board may not be as generous. Chairman Carlson stated at the end of the 15 minutes, the Board will make a determination.

Mr. Torpy stated the people from the area have talked about two big concerns, the extension of St. Andrews Boulevard and school overcrowding; and they are looking for GU zoning. He stated in terms of the extension of St. Andrews Boulevard, they would like the Board to say what they would like to do with that; he has been asking about it for many months; and there has not been a consensus. He stated school overcrowding is an issue that has been discussed; but he is not adequately prepared tonight because it is still pending School Board action to actively address that. He introduced Tom Myers who will present the subdivision plans; and stated the reason plans have come and gone is because they have met with the community and have tried to address concerns.

Tom Myers advised of his background as a planner for Brevard County for ten years; and stated he has examined the development proposal and finds it to be in compliance with the applicable Land Development Regulations of the County, specifically Section 62-1151, which deals with applications and what an applicant needs to show in order to be granted zoning. He stated Section 62-1151(c)(1) says that the character of the land use surrounding the property has to be considered; and the properties are very consistent in character. He stated another provision is that changes in conditions of the land use since the existing zoning was established should be considered; the entire area has been developed out since the existing zoning was established; and it has been zoned in a manner that is consistent with the proposed development. He stated another provision is the impact of the proposed zoning on the available traffic patterns, water and sewer systems, and other public facilities; and this is in compliance with applicable concurrency requirements of the County. He stated this is the appropriate zoning classification for the property; and advised of consistency with Section 62-1340, RU-1-13 zoning classification. He noted St. Andrews Isle Subdivision is zoned RU-1-13; and Grand Haven is zoned RU-1-7, which is a more intense zoning classification. He stated in evaluating PUD's, the Zoning Code required a further analysis to find an equivalent zoning; and the equivalent zoning he would assign would be RU-1-13, based on lot sizes, lot widths, and streetscapes. He stated Section 62-155 specifically states which zonings are consistent with which Comprehensive Plan densities as shown in Exhibit A; the property in question is designated as residential at 12 units per acre; and RU-1-13 is consistent with that and a considerable number of more intense zoning classifications are also consistent with that designation. He stated Exhibit B shows the rezoning is consistent with the Comprehensive Plan; and he has also provided a copy of the original staff comments that were prepared before the school concurrency issue arose, and which are all favorable. He stated once it is determined the property is consistent with the Comprehensive Plan Future Land Use Element and other applicable policies, the next major issue is whether it is compatible with the surrounding land uses; the Future Land Use Element requires a compatibility analysis; and the compatibility matrix is one of the exhibits he provided to the Board. He stated the matrix indicates it is probably compatible and finds a number of denser zoning classifications also probably compatible; and that is because a variety of housing and land sizes can be compatible with each other as long as lot sizes, house sizes, and streetscapes are similar, which is the case with this project. He stated the Board went to the unusual step of hiring an independent planner, Todd Peetz of Planning Partnerships, Inc., to do a consistency review; and he found mild to moderate incompatibility based on the worst case scenario and a numeric analysis of a density difference of 1.6 to 2.19, which is not a compatibility difference that the Zoning Code and the Comprehensive Plan anticipate. He stated the Code and the Comprehensive Plan allow a much bigger diversity of lot sizes to be adjacent to each other and still be considered compatible; and fractions of a unit per acre are not the kinds of things one can see when looking at a streetscape. Mr. Myers noted two of the developments that are adjacent that were analyzed were other parts of Sawgrass South and Grand Haven, which are both denser than the proposed development in the upland area, when one accounts for the fact that 35% of one of the projects and 45% of the other was wetlands, while only 15% of the proposed project is wetlands. He stated streetscape is what one sees when driving down the road, what the houses look like, the house sizes, etc.; that is what indicates what the neighborhood is; and the streetscapes are extremely similar and nothing that could amount to a compatibility difference. He stated Mr. Peetz' report says the increased density can be justified; and the reason they can be justified is they are providing a transition from RU-1-13 to RU-1-7 and a major transportation corridor. He stated this is infill development; there are policies in the Comprehensive Plan that call for stopping urban sprawl; and infill areas are where development is welcome to go. He stated even if there is a school concurrency issue, which is not appropriate to consider here, a good school concurrency program would have exemptions for infill development. He stated the County does not want development to jump the interstate and start building; it does not want development to start on new raw tracts of land where roads would have to be extended a considerable distance; and advised he has included a staff report on concurrency requirements, which the proposal meets. He stated staff has cited some level of service requirements that are listed for school concurrency; and commented on the lack of a measurable standard. He stated he provided a staff analysis of roads, water and sewer, and trash collection as an exhibit; and staff indicates those are all consistent. He stated Chapter 168, Florida Statutes deals with what is needed for school concurrency; outlined the provisions; and reiterated his comments concerning lack of a measurable standard. He stated the policy the Board is quoting is an advisory level of service; and advised of the standard for prison cells, which would call for 15,000 cells in Sharpes, and which is something the Board has power to spend money on. He stated the County does not have a measurable standard level of service; and it does not make any planning sense to do it on anything less than a Countywide basis because municipalities will continue to approve things that will impact the same schools.

Chairman Carlson advised the 15 minutes is up.

Discussion ensued on whether to allow additional time for the presentation. The Board reached consensus to allow additional time.

Mr. Torpy submitted Mr. Myers resume; and introduced Sans Lassiter.

Commissioner Colon stated Mr. Myers encouraged the Board to tell the municipalities and everyone to get on the bandwagon in regards to better communication with the School Board; and he is supporting going Countywide.

Mr. Torpy stated Mr. Myers recited the County Code and the fact that the County staff on all issues found the rezoning to be favorable; and the only issue is the one of concurrency for schools. He stated Mr. Myers' point is that the current policies and standards cannot be applied as they do not make sense because unless all surrounding municipalities are involved, there are no standards the developer can comply with. He stated there are no standards that are legally supportable as a standard on which to base denial of rezoning; before the Board can come up with these types of standards, it will need to have a communal approach rather than just city by city; and as it stands now, they are not legally sustainable to deny rezoning.

Commissioner Colon stated he made it perfectly clear that in order for something like this to work, it would have to be done Countywide; and she thanks him for that comment.

Mr. Torpy stated for it to be legal, it would have to have all the concurrency; with Commissioner Higgs noting this is not a concurrency issue.

Sans Lassiter, Registered Engineer, advised of his 23 years of experience in the area of traffic; and stated he agrees with the staff findings that found the rezoning to be concurrent. He submitted his resume.

Commissioner Higgs stated the comments were in relationship to schools, not road concurrency. Mr. Lassiter stated he agrees with the staff findings that the rezoning is concurrent.

William Kerr, Environmental Consultant, advised of his 18 years of experience in the County; and stated issues of wetlands and endangered species have been raised. He noted his
company was not involved in any of the original permitting of the eagle's nest; but a Corps of Engineers permit was issued to Grand Haven Subdivision, which laid out what needed to be done for the protection of BE17 where the eagle's nest is located. He stated the permit requires the permittee to agree that no construction activities, roadway construction, infrastructure activities and/or home construction, etc. will occur within 1,500 feet of the active nest during the nesting season from October 1 to May 15; and the eagle's nest is located off-site, approximately 550 feet north of the project and is an active bald eagle's nest. He noted the permit allows inside finishing work to continue if the residence is under construction and under roof; however, new construction will not occur within 1,500 feet of the nest during the nesting season; and deviation from this condition may only be permitted with written approval from the Fish and Wildlife Service. He stated the letter from the Fish and Wildlife Service to the previous consultant commented on the adjacent Grand Haven Subdivision at the Pineda Extension roadway, where they were allowed to build a road within 400 feet of the nest to avoid a pristine wetland; and the rest of the project followed the recommended habitat management guidelines for bald eagles in the southeast, prohibiting activity within the 750-foot primary zone and restricting tree removal and exterior construction of buildings during the nesting season within the 1,500-foot secondary zone. He stated the Fish and Wildlife Service called for monitoring by a qualified biologist for the duration of the construction activity within the secondary zone during the nesting season, and recommended monitoring be done on a daily basis from dawn to 3:00 p.m. during nest building, egg laying, incubation, etc. He stated his company monitored from February through April; during that time the County constructed a road within that 400 feet and the Grand Haven Subdivision constructed homes and other roads interior to the projects including a retention area within the 400 feet, which is allowed under the permit; and they observed that the eagle successful fledged a pair of eaglets within disturbance from construction in the 400 feet. He advised of daily monitoring; and explained there are urban eagles and rural eagles. He stated some eagles cannot stand any development pressure; in Commissioner Colon's District there is an eagle's nest within 1,500 feet of the intersection of Palm Bay Road and Babcock Road, where pairs of eagles have been successfully fledged for the past 7 or 8 years; and this is a nest that can stand development. He noted he is getting a lot of chuckles from the audience, but it has been documented by observation. He stated there are some eagles that cannot stand invasion within the 1,500 feet; and he is reporting the facts that he has observed and what has been permitted through the Corps of Engineers and the U.S. Fish and Wildlife Service. He stated there have also been comments about wetlands in the project; the wetlands lines have not been officially identified; there has been no permitting of the wetlands or any determination of the lines; he did an aerial analysis and a wetland interpretation with no field verification; and his estimation is there are approximately 25 acres of wetlands on the site. He stated the original plan he reviewed destroyed all 25 acres of wetlands; the plan that is proposed tonight preserves an estimated 21.68 acres of wetlands; and there is no design so he does not know what happens between the edges of the retention areas and the wetlands themselves. He stated the normal design would say that the control elevation of the retention ponds between the wetlands would be set at the wet season water table in order to maintain the hydration of the wetlands. He stated there are 3.42 acres of proposed impacts, which falls within the general parameters of wetland impacts that have been permitted in South Brevard County over the past 7 or 8 years; and there are four acres of creation. He stated the plans have been adjusted to preserve most of the wetlands; the 3.42 acres of impact will be negotiated with the Army Corps of Engineers, the St. Johns River Water Management District, the Fish and Wildlife Conservation Commission, and the County to design appropriate mitigation. He stated the encroachment into the eagle's nest primary zone was because of nesting sand hill cranes.

Chairman Carlson stated it is known the city eagle came from the country, moving out to the current nest from Viera west of I-95; and inquired if the ability for an eagle to exist with construction, traffic, etc. takes into account pedestrian traffic. Mr. Kerr stated what disturbs eagles most is noise; where there is motion, the eagle will see it, but that is not what disturbs the eagle; and noise and encroachment close to the nest during the nesting and egg laying period is what disturbs the eagle. He stated the eagles in question have been there since 1994; they have successfully fledged every year since 1994; and they monitored every day until the eagles were successfully fledged. He stated they observed several types of activity; basically there was no impact; but there was no development or construction activity with a lot of noise with the 400 feet for the majority of the time the nest was monitored. He commented on various conditions such as a dump truck or slamming a tailgate that were not allowed within the 400 feet; and advised there was a decibel meter used to measure the sound. He stated precautions were taken during construction; and with those precautions, the eagles successfully fledged eaglets.

Chairman Carlson stated staff, which has expertise in this area, and has checked on the eagles and studied their behaviors, indicates pedestrian traffic is a major issue in eagles abandoning their nests. Mr. Kerr stated it can be; he cannot make predictions without long-term observations; he cannot do a scrub jay survey and guarantee he is going to find those scrub jays in that place every time; and he cannot guarantee what the eagle is going to act like one day to the next. He stated the best he can do is observe and see if the patterns of its activity are affected by the activity within 400 feet; and he reported there was no effect.

Commissioner Scarborough stated the eagle may have been tolerant to this point, but the next thing may be the thing that makes him leave the nest; with Mr. Kerr advising it is possible to lead to that conclusion. Mr. Kerr noted he and Commissioner Scarborough are approximately the same age; they do similar things in behavior, and that can all be observed; and after observing for a time period, he could predict what Commissioner Scarborough's behavior would normally be; but one day there could be some circumstance that would upset him and he would do something outside his normal behavior, which he cannot predict. He stated he cannot predict specific eagle behavior; he can only say he observed them for four months every day from dawn to 3:00 p.m.; and the activity permitted within the 400 feet did not give any indication of change in their behavior.

Chairman Carlson inquired if some behavior the County has approved causes the eagles to abandon the nest, is the County liable or does it face any sort of violation. Mr. Kerr responded that is a question for the County Attorney; the Endangered Species Act was written to protect the endangered species, and if activity can be associated to a specific individual or entity that causes an impact, harassment or hardship, then that individual or entity can be prosecuted under the Act. Chairman Carlson stated she is not an attorney and would need a report on that.

Mr. Torpy stated he is not sure the Board is aware of some of the changes that were made in the overall project; wetlands are being preserved that were not in the first plan; and the applicant is willing to enter into a binding development agreement providing that the lots that are adjacent to the St. Andrews Isles will be at least as big, if not larger than those in St. Andrews Isles; they will mirror the St. Andrews Isles deed restrictions with those properties and the Waterford Place deed restrictions so that all adjacent lots will at least be the same size; they will leave the existing 50-foot easement in its natural state; the entrance from St. Andrews Boulevard will be as indicated a bit westward of the existing east boundary of St. Andrews Isles; and there will be an access point off the Pineda Extension to split the traffic. He noted there are some issues with the Agreement between A. Duda and Sons and the County for access points onto the Pineda Extension, if and when it is ever done; they are willing to leave the access point to the Pineda Extension, but if it presents a problem to the County and the County determines to put St. Andrews Boulevard through to the Pineda Extension, they are also willing to remove it; and that will be at the Board's discretion, and will be included in the binding development agreement. He stated all the lots to the west and north are RU-1-13, which is what he is requesting; the properties to the east and south are RU-1-7, a much heavier density zoning; and staff found the property to be consistent and probably compatible with the Comprehensive Plan. He stated with respect to all issues, the project is appropriate to meet all the zoning regulations; and it is entitled to zoning as RU-1-13. He stated he submitted three experts to testify on all the issues that concur with the testimony of the County's experts through staff; there has been no other expert testimony offered today y that would rise to the level of expert testimony that would disagree with any of the points; and the only remaining issue that has been inadequately addressed is the issue of school overcrowding. He stated the School Board is still trying to make a determination at this point; the County's policies cannot be interpreted to apply in determining whether this project would in some way violate the County's Codes; the Codes must be able to be interpreted; and the standards are inadequate at this time to be interpreted. He stated this is the first time the Board has addressed this issue in a significant way; and it is difficult to come out with adequate standards when it is being addressed for the first time. He stated the deed restrictions they are willing to include in the binding development agreement are as follows: "All lots adjacent to St. Andrews Isles Subdivision shall be a minimum of 90 feet wide and all lots adjacent to Waterford Place shall have a minimum lot width of 85 feet. All other lots within the subdivision shall have a minimum lot width of 80 feet. Total number of lots shall not exceed 185. The deed restrictions on those lots adjacent to St. Andrews Isles shall conform to the same standards as the St. Andrews Isles deed restriction regarding fences in the rear yards, and accessory structures in the rear yards. The right-of-way for St. Andrews Boulevard to the Pineda Extension shall be dedicated to Brevard County. St. Andrews Boulevard road improvements shall be constructed to the point of entry to the subdivision and will not connect to the Pineda Extension. The applicant agrees to construct a construction access point from the existing Pineda Extension into the proposed project for the construction traffic access and will provide the security necessary. The applicant agrees that all streets within the community shall be private and it shall be a gated community. A permanent residential connection point to the Pineda Causeway Extension shall be constructed after 90 lots have been platted within the proposed subdivision and will allow for a secondary gated access. This access point will remain until St. Andrews Boulevard is connected into the Pineda Causeway, at which time it will be closed upon the request of the County. The existing 50-foot right-of-way that is between Waterford Place and Sawgrass South Phase 3 shall remain in its natural state; and the existing wetlands shall be preserved as indicated on the Sawgrass at Suntree Phases 2 and 3 development plan, which is attached as Exhibit A to the binding development agreement." He stated they have adequately addressed as much as they possibly can the issues that have been raised here today; and from a legal standard, they are entitled to the requested zoning of RU-1-13.

Chairman Carlson acknowledged all the people who have come out and all the time and effort spent on this issue, and also from the development perspective, all the time and effort the applicant has spent on this issue over a long period of time trying to come to some conclusion that would make all parties happy. She stated there are some very difficult issues to deal with; and she has a proposal for the Board. She stated in tonight's dialogue the Board has touched on many issues such as the Comprehensive Plan and how it is applied as far as school overcrowding, different connections to the Pineda Extension and St. Andrews Boulevard, traffic circulation issue, wildlife habitat, water and sewer issues, and concurrency issues. She stated the Board needs to continue its dialogue with the School Board; it has made commitments that it needs to follow through with; and as Mr. Torpy mentioned earlier, those issues have not been resolved yet. She stated her proposal would be based on the current state of the property; it is an expired PUD; and the Board is obligated to put some kind of zoning on the property, which is why she is not interested in tabling it. She stated the Board needs to set the zoning issue aside so it can address the overcrowding issue and see what the Board can do to assist the School Board; and recommended zoning the property GU to eliminate the condition of having no zoning at all. She stated the support she would give the proposal would include that GU is a zoning category, which does not eliminate the development rights on the property; if the developer chooses to move forward, he can do so at one unit per five acres; and the zoning would be consistent with the Comprehensive Plan. She stated in staff's reviews, three particular policies in the Comprehensive Plan state how the Board should go about proceeding when faced with school overcrowding issues; and read aloud a letter from the School Board dated May 1, 2001, to County Manager Tom Jenkins, as follows: "I am writing to you regarding two current projects that have been before or will soon come to the attention of the County Commission. Those projects are the rezoning requests on property located on the southeast corner of Pioneer Road and Lewis Carroll Avenue, and the Sawgrass South Phase 3 Subdivision. As was discussed at the joint meeting of the County Commissioners and the School Board on March 15, we need to carefully analyze the future growth throughout the County and its effects on the school system. While we both recognize that this is a very complex school planning and growth management process, it is important that we address it expeditiously to avoid ongoing overcrowding in our schools. At the Board meeting on April 10, we presented a $50 million proposal to the School Board for its consideration for the elimination of portables throughout the district. Our proposal included the elimination of portables in the very schools that these new developments will impact. For example, at Suntree Elementary we plan to build eight new classrooms to deal with the current over capacity problem, and we have 12 portable classrooms at Satellite High School where these students will eventually attend. Also at Lewis Carroll Elementary we are proposing to build an eight-classroom addition and to replace 12 portables at Merritt Island High School. It seems to me that we are chasing our tail unless we get a better handle on the growth and how we mutually can deal with it. I hope that you and the Commissioners will give serious consideration to our concerns and that they will weigh heavily in your decision on these two proposed developments." She stated that is proof that the School Board is serious about continuing the dialogue with the County Commission; she wishes it was started a few years back when Suntree was going through severe problems of overcrowding, but that did not occur; and that is part of the planning process. She stated based on the proposal of GU, the County's denial of the applicant's request based on school overcrowding is consistent with and not prohibited by General Law, as the Assistant County Attorney has advised; and there needs to be a determination of public interest. She stated it is in the best interest of the public to resolve these issues and for the Board to go forward and define measures of how it is going to work with the cities and the County as a whole to assist the School Board with the overcrowding situation. She stated the Board talks a lot about quality of life in the community; education is a major issue; and if the Board proceeds in this way, it is moving in the right direction, but it will take time as it is complex.

Motion by Commissioner Colon, seconded by Chairman Carlson, to propose a GU classification for the property based on a number of factors discussed at this meeting including school capacity and traffic issues; direct the County Attorney to develop findings of fact outlining the issues; and close the public hearing.

Commissioner Colon stated the motion would be final based on the findings of fact from the Attorney who will come back, and the Board will proceed from there.

Ms. Bentley inquired when the Board wants the findings of fact back before the Board as they will need notice. Chairman Carlson inquired how long would it take to put them together; with Ms. Bentley responding 30 days, which would be the September 6, 2001 Zoning meeting.

Commissioner Higgs stated she is concerned that there is some additional information that potentially the School Board would have; Commissioner Colon's conclusion is where she is; but the Board has not seen a full definition of the School Board's planned action. She stated if it were months in advance, she would discard that as being relevant data for the decision tonight; but she has heard the School Board will be making a decision in September or early October; and she is concerned that there might be some additional information the Board should have in regard to its plans. She stated what she reads in the information and the letter, and hears in the testimony is that the plan is simply to replace portables; and inquired if in the findings of fact there would be further clarification from the School Board or would the findings of fact simply take the statement that the Board has from the School Board in hand. Ms. Bentley advised it would not be possible to take any new information after this date because the public hearing is being closed, which closes everything in the record that is available for the finding of fact. Commissioner Higgs inquired if there is any additional information from the School Board in regard to its specific plans. Assistant County Manager Peggy Busacca advised the Board has the proposed information from the School Board at the time the initial COP vote was taken; that information was provided to the Board at the School Capacity Workshop; and it can be made part of the record this evening. Commissioner Higgs requested clarification of the proposal in terms of Suntree.

Mr. Torpy stated the Board is apparently discussing items which he never heard go on the record this evening, such as the letter that was read by Chairman Carlson and information that is being requested from Ms. Busacca regarding the school overcrowding issue. He stated he has not heard any of that information placed on the record this evening, nor has he been made privy to it; and the Assistant County Attorney testified earlier that if one side is going to bring in information, the opposing side should have the opportunity to review and respond to it; and he objects to any information being considered this evening that has not been provided previously for review and consideration and opportunity to testify this evening with their own expert testimony. He stated it is out of line and denial of due process.

Chairman Carlson inquired if staff has gotten all the data the Board got from the School Board, and has the applicant received copies of that. She noted the letter she read from Dr. DiPatri was dated May 1, 2001. Mr. Enos advised the applicant received a copy of the staff review, which includes the letter that Chairman Carlson read.

Mr. Torpy stated he is trying to clarify because this is a public hearing in a quasi-judicial proceeding; if the Board is only talking about staff review comments, he has received those; but he is not sure if it is coming from another source, such as what was requested from Ms. Busacca. Chairman Carlson stated that is why Ms. Busacca is going to clarify what document she is talking about and then Mr. Torpy can determine whether he has seen it or not. Commissioner Higgs inquired if Mr. Torpy got all the information from the School Board on what it was doing; with Mr. Torpy responding he has lots of information from the School Board, but it has not been made part of the record by him, nor has it been made part of the record unless it is part of the staff report. Mr. Torpy stated it is simply information that is out there; and there are a lot of uncertainties. Commissioner Higgs stated Ms. Busacca may make it part of the record right now. Mr. Torpy voiced objection to her doing that at this point when there has been a close of testimony on his part and it was not provided as part of the staff report.

Ms. Busacca stated the information is a letter dated May 25, 2001 from Dr. DiPatri to interested parents and community members; and it says, "the Brevard County School Board is currently considering a plan to replace relocatable classrooms with permanent buildings and address ways to accommodate student growth over the next five years." She stated the next page is a page entitled Plan to Replace Relocatable Classrooms with Permanent Building Additions, which provides background information and recommendations; and it says, "included in the funding recommendations is an additional $8 million that could be utilized for the construction of a new elementary school in the Viera West area in lieu of proposed additions to Long Leaf, Suntree, Ralph Williams Elementary Schools and/or other building additions that may be needed such as the proposed professional development and technology center." She stated in addition, there is a table that is a proposed relocatable replacement plan prepared by Ed Curry dated May 7, 2001 that shows Suntree Elementary K-6 has eight proposed classroom additions, Long Leaf Elementary has eight proposed classroom additions, and Williams K-6 has eight proposed additions.

Commissioner Scarborough stated the question is whether that was a part of the record; with Ms. Busacca responding no, it was not, but it is the only information the County has as to the School Board's plans. Commissioner Scarborough inquired if the Board can proceed without having that as a part of the consideration when it has its findings of fact.

Chairman Carlson inquired if any of that information went into any of the zoning material; with Mr. Enos responding it did not. Ms. Bentley stated the Board is closing the public hearing; it would have to reopen the hearing in order to discuss that; and Mr. Torpy would need to have an opportunity to respond. Chairman Carlson inquired about the desire of the Board.

Commissioner Scarborough stated this is going to face a legal challenge; and if the Board does not afford Mr. Torpy the opportunity to review the information the Board is considering, it will open it up for procedural attack. Chairman Carlson inquired if Commissioner Scarborough is saying to keep it out of the findings of fact. Commissioner Scarborough inquired can the Board limit the discussion at the next public hearing to only certain elements rather than revisiting everything; with Ms. Bentley responding yes, it can limit discussion to the school capacity issue and the plans for the School Board, if the Board chooses to do that, but if it opens the door to other things, it will have a problem. Commissioner Scarborough stated it appears the discussion is relying heavily on some School Board issues, and the more information the Board has the better. He stated it sounds like this is going to court; and inquired what is Ms. Bentley's suggestion; with Ms. Bentley responding she would suggest giving the applicant the opportunity to make his best case. Commissioner Higgs inquired if Ms. Bentley means in regard to schools; with Ms. Bentley responding yes. Commissioner Colon stated the applicant is going to say that he is waiting for more data; and inquired if the Board should give him the information from Ms. Busacca and allow ten minutes to read it and give his best argument, or should it exclude it totally. Commissioner O'Brien advised there is the threat of a lawsuit. Commissioner Scarborough noted the County loses a lot of these cases. Commissioner O'Brien stated the applicant should be allowed time to look at any arguments the Board makes; tabling the item will give the homeowners and other interested parties a chance to present expert witnesses which they have not done tonight; and the eagle has little to do with zoning as it is an environmental issue.

Commissioner Colon stated if that is the direction the Board wants to go, the next Board meeting is August 14; and recommended the item be put on the Agenda to put it to rest. She stated that will allow the Assistant County Attorney more time to see the direction the Board wants to go. Commissioner Scarborough stated a case can be lost if the facts do not support it; but another way to lose is to trip up procedurally. Commissioner O'Brien stated the Board already has; with Commissioner Scarborough disagreeing. Commissioner Scarborough stated if the Board decides not to bring the information in, it could lose the case; and procedurally, if the Board denies the applicant the right to respond, it could lose because it is denying due process. He stated the Board does not want to hear everything over again; but if the Board is bringing in something that it wants to rely on in the finding, then the Board should protect that finding by not having a procedural attack. He stated in one meeting, that one issue can be brought back; Mr. Torpy would be limited to just the school issue; and that way he will not be able to say he did not have a chance to review and comment on it. He stated at the same time the Board can take that issue under consideration and discuss it fully so it can close the public hearing on all matters but for the school issue item. Ms. Bentley stated the public would have an opportunity to also comment on school capacity.

Chairman Carlson stated if the Board wants to make sure the findings of fact are in order, it should move in the direction of tabling; but there is a motion on the floor.

Commissioner Scarborough suggested continuing the public hearing only as to the issue of the school information that was read into the record that Mr. Torpy indicated he was not privy to.

He stated the Board has the option of saying it is not going to consider it if it is not significant, and go ahead with the motion and vote; but if it is going to consider it, and Mr. Torpy has not had a chance to review and comment on it, this is headed to court.

Chairman Carlson stated Commissioner Scarborough is talking about continuing the public hearing; and inquired would that leave the motion currently on the table; with Commissioner Scarborough responding yes. Commissioner Higgs indicated uncertainty about the motion staying on the table. Ms. Bentley advised the Board is going to need to table it and continue the public hearing to the next hearing, at a time certain. Commissioner Higgs inquired if it would be smoother if the motion was withdrawn so the public hearing could be continued to have additional testimony to be used in the deliberations; with Ms. Bentley responding affirmatively. Commissioner Higgs stated the motion that is currently on the floor would be withdrawn; the Board would then move to continue the public hearing to allow additional comment on the issues in regard to the schools affected by this development.

Commissioner Colon withdrew the motion. Commissioner Scarborough withdrew his second to the motion.

Commissioner Higgs advised she met with Mr. Torpy and his clients; she also talked to a number of residents including a number of speakers who are here tonight; and she has also received correspondence. She stated her concern is to have all the facts on the table and proceed carefully; this issue is very important to the community; and it is important to do it right the first time.

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to continue the public hearing on Item 3 to August 28, 2001.

Commissioner Colon stated the evening meeting is better for the citizens. Commissioner Higgs noted the August 28, 2001 meeting would not be before the School Board meeting, which is scheduled for the end of September. Chairman Carlson stated she is not sure why the Board needs that. Mr. Torpy advised the School Board meets the second and fourth Tuesday of September. Chairman Carlson inquired if it is necessary to hold up on this until the School Board meets and decides something more specific, and is that going to help the finding of fact. Commissioner O'Brien stated it would be a good idea. Ms. Bentley stated Mr. Torpy initially requested an opportunity to find out what the money was going to be used for. Commissioner Higgs stated because the time frame is such that the Board is looking at weeks, not months, it should have the opportunity to have the fullest information when the decision is made; and this could be continued to a daytime meeting, but the Board needs to have the right data, and an evening meeting affords people the opportunity to come. Commissioner Scarborough stated if it is continued, that means the Board is not going to limit discussion; with Commissioner Higgs responding her motion is to continue only on the issue suggested to get additional information on the school capacity issues; and the question is the date. Ms. Bentley inquired when is the October zoning meeting; with the Clerk responding October 4, 2001. Commissioner Colon inquired if it is possible to request the School Board discuss school capacity at its next meeting to expedite things. Commissioner Higgs stated the School Board has a public hearing scheduled; and it is advertised for a certain date. Commissioner O'Brien stated the Board would like to expedite the process; but in doing things in the proper manner by going to October 4, it will give everyone involved time to get the right information to come back and discuss the education element; and it will be a very restrictive conversation with no new evidence brought forward on any other topic. He stated then the Board can make a viable decision; and if it does not proceed in this way, the applicant will take the Board to court, win, and the Judge will order the Board to give the applicant what he wants. Commissioner Colon stated she agrees; this is bigger than Sawgrass; it is about school capacity throughout the County; and that is why it is so critical. She stated the Board is comfortable getting all its ducks in order; the public knows where it stands as a Board; and everyone can go out and create their best case. Commissioner O'Brien stated right now no one knows how the Board stands concerning this project; the Commissioners have not made any decision although a motion was made and withdrawn; and there is no predilection toward the decision in October. Commissioner Scarborough explained the need for findings of facts; and advised it gives the County a better chance in court. Ms. Bentley advised the compatibility issues will be based on what is in the record today.

Chairman Carlson stated there is a motion to continue the public hearing on the school issue only; and inquired if staff needs to provide the applicant with all the data that comes to the Board; with Ms. Bentley responding yes, as promptly as they can.

Chairman Carlson called for a vote on the motion to continue Item 3 to October 4, 2001 Board meeting. Motion carried and ordered unanimously.

Chairman Carlson stated there is a Contractor's Licensing Board; and any citizen can relay a complaint on the State or County license of a developer, builder, etc., so there is an avenue to address that issue. She inquired in terms of marketing Sawgrass at Suntree, is there any legal issue with them using the name Suntree. Ms. Bentley advised they would have to have registered the name or actually be defrauding the purchasers; and it is a civil issue.

The meeting recessed at 10:14 p.m. and reconvened at 10:31 p.m.

Item 5. (Z0105105) Nikki L. Perry and Patrick J. McDonald, Jr., and Daniel E. and Lucy A. Nugent's request for change from GU and AU to ARG on 5 acres located on both sides of Sharpes Road, and on the south side of Hibiscus Avenue, which was recommended for approval by the P&Z Board.

Commissioner Scarborough stated he visited with the parties during the break; the issue is the number of horses; and inquired if the group reached a number.

Nikki Perry inquired what would be fair for her to have. Chairman Carlson inquired if five is fair; and advised the request was for four. Ms. Perry stated she has three horses now; if she bred one of her horses and she had twins, she would have a Code violation; and she does not want to be so limited that anything she does can be a violation. Commissioner Scarborough inquired how many does Ms. Perry want; with Ms. Perry responding six, although she will probably never have that many.

Commissioner Scarborough stated Ms. Perry sent a letter withdrawing lots 2 and 3 from the original application; and he has a document where both sides came to an agreement except for the number of horses. He requested Item 4 on the agreement be changed from "maximum of four horses" to "maximum of six horses." He inquired if that is acceptable to everyone.

Steve Lawhon stated when Ms. Perry called him a couple of days ago to work some things out, he though it was great; and a lot of things were worked out. He stated when he first talked to Ms. Perry, she only wanted two horses; but when he requested a binding development agreement saying that, she refused, saying she might want three horses.

Commissioner Scarborough inquired what is the difference between having three and six horses; with Mr. Lawhon responding they agreed on four, but are concerned about the stabling of other people's horses. Mr. Lawhon advised they first wanted the whole front lot SR; and that is the reason they agreed to go AU with the first 150 feet restrictions. Commissioner Scarborough stated he does not want to go through the whole litany of things; everyone had agreed on everything but the number of horses; and right now both sides are only two horses apart. Mr. Lawhon suggested five horses.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to approve Item 4 with a Binding Development plan providing that: (1) there will be a 20-foot undisturbed natural wood buffer along the west property line, at which point the fence will begin; (2) Lot 1, which abuts Peroutka Lane, will have a 50-foot setback of natural undisturbed wood buffer along the entire frontage of Peroutka Lane with a 25-foot wide clearing for an offset driveway from any structure; (3) no temporary housing, (4) maximum of six horses; (5) no other type of farm animals such as roosters, chickens, pigs, goats, cows, etc.; and (6) with north 150 feet limited to SR uses. Motion carried and ordered unanimously.

Item 6. (Z0105301) John D. and Myra Ireland Holder's request for change from GU to RR-1 and approval of eight flag lots on 18.58 acres located on the east side of Brabrook Avenue, between Mount Pleasant Avenue to the north and Sand Point Road to the south, which was recommended for approval by the Planning and Zoning Board.

Attorney Tino Gonzalez stated he appeared before the Board previously; he is representing Aunt Myra who is 90 years old; and the request is a change from GU to RR-1. He advised Myra Holder owned the property, along with her now deceased husband, for over 30 years; it was a 20-acre parcel, which is now 18+ acres; and they are trying to divide the property so it can be sold. He stated Ms. Holder is in a nursing home that costs her family approximately $4,000 a month; and the proceeds of the sale of the lots will be used for her maintenance in accordance with the terms of her guardianship. He stated at the previous meeting, Commissioner Higgs expressed concern about the eight flag lots that were set forth in the conceptualized drawing where eight 1.1-acre lots were left in front and eight 1.33-acre flag lots were in back; and staff and Commissioner Higgs discussed the back flag lots being modified to approximately 2.66 acres in accordance with the 12-lot configuration, which he submitted today. He stated staff was concerned about the number of access points off Brabrook Avenue; with the 16-lot configuration, there are four access points with the cross easements; with the 12-lot configuration, there would be approximately six driveways; and he is submitting a 14-lot configuration where Lots 1 and 2 and 7 and 8 would be 2.6 acres, the inner flag lots would remain 1.33 acres, and that would only require five access points. He stated the original 16-lot configuration is consistent with the Future Land Use Element and the Comprehensive Plan; they have tried to mitigate the concern about access points off Brabrook Avenue; and in this section, there are over 200 one-acre lots. He stated what they are requesting is a compromise; and requested they be permitted the lots under the 14-lot configuration.

Commissioner Higgs stated the rear of the area abuts AU and the lots on the rear of the property should be AU; the lots on the front are acceptable, compatible, and consistent with RR-1; and although she is not going to tie approval to the configuration, what was submitted as the 12-unit configuration is preferable.

Motion by Commissioner Higgs, seconded by Commissioner Colon, to approve Item 5, as RR-1 on the front 300 feet and AU on the back 300 feet, with no approval of flag lots. Motion carried and ordered unanimously.

Commissioner Higgs stated the Board is not approving the division as drawn; and it is her strong feeling this falls under the Subdivision Ordinance and laws. She stated if staff is going to approve any subdivision of the property by any other means than what is consistent with the Subdivision Ordinance, she would like staff to report back fully with the justification.

Motion by Commissioner Higgs, seconded by Commissioner Colon, to direct staff to provide a report to the Board if the subdivision of the property is by any means other than that consistent with the Subdivision Ordinance. Motion carried and ordered unanimously.

Item 1. (Z0107101) John H. Davis, III, and Diane Tingley Davis' request for change from RR-1 to AGR on 20 acres located west of the Florida East Coast Railroad, at the western terminus of Broadway Boulevard, which was recommended for approval by the Planning and Zoning Board.

Diane Tingley Davis stated their property is presently zoned RR-1; it is a 150-year old dairy farm; and they would like to have it zone AGR. She stated it was administratively rezoned several years ago; she is not sure why; and there is an SUP for an asphalt plant. She stated she is sure no one will be opposed to their giving up the asphalt plant.

Commissioner Scarborough stated there are other things requested that are more complex; but this is straightforward.

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

Ms. Davis stated a draft has been done concerning a farmer's market; she appeared before the Board on April 3, 2001 and asked that animal auctions be incorporated into the farmer's market CUP; the Board voted unanimously for staff to work with her to accomplish that; and she received the draft from staff at the end of June. She stated the first option seems to be the best of the three proposals.

Chairman Carlson stated it will have to come back under a public hearing. Ms. Davis requested a waiver of fees because she came early enough that it could have been incorporated, and she could be getting that approval this evening also. She stated because it is not in place, she will be required to pay another $700+; and she is requesting a waiver of fees so she can come back for that approval. Chairman Carlson stated this would not have come before the Planning and Zoning Board, but in front of the Commission. Ms. Davis stated it would have been approved as a CUP. Commissioner Higgs stated nothing is through so the Board does not know; and it may be permitted with conditions, in which case it would not come before the Board, so there may be no fees. Commissioner Scarborough stated it is premature to discuss this until there are some ground rules. Ms. Davis stated there is no law against it; but Mr. Enos interprets it such that she cannot sell animals; and it is not addressed in the zoning requirements. Zoning Official Rick Enos stated Ms. Davis can sell her own animals, but cannot bring them in, as that requires industrial zoning. Ms. Davis stated there is nothing that says that; with Mr. Enos admitting it is an interpretation. Chairman Carlson stated this must come back to the Board in the normal format; and inquired when it will come to the Board. Mr. Enos stated the Board has a report later during this meeting where this will be discussed.

Ms. Davis inquired what a site plan means, in that verbiage; and she will bring that up when the discussion comes up. She stated they have been scheduled before the Code Enforcement Board again; it is because they are living in a trailer that has been on the property since the 1980's; she just bought the property in January, 2001; and she has been cited. She stated when she went to get a permit, she could not get one on RR-1; and so she applied for the zoning change; but she keeps being cited for violation. Mr. Enos advised now that the Board has approved AGR, the mobile home could be permitted. Ms. Davis stated she is already scheduled before the Code Board on August 16; and requested she be permitted to go through the process. Commissioner Higgs stated staff will take care of it.

Item 2. (Z0107102) Carl B. (Jr.) and Joyce E. Bates' request for change from RRMH-1 to TR-1 on 0.3725 acre located on the west side of Old Dixie Highway, approximately 660 feet south of Brockett Road, which was recommended for approval by the Planning and Zoning Board on the south 65 feet only.

Joyce Bates requested a change from RRMH-1 to TR-1; and stated she would like to take the southeasterly portion of the property and have it divided off so they may put another mobile home there for her son. She advised her husband has a medical condition, and she needs her son's assistance as she needs to go back to work and cannot leave her husband alone during the day.

Commissioner Scarborough stated this is out of character and has some problems; and inquired if a zoning can be approved based upon certain people living in certain facilities; with Ms. Bentley responding no, it must be based on land use. Commissioner Scarborough stated if the person living there was caring for the father, it would be appropriate; and inquired if it can be worded as such. Ms. Bentley stated there is nothing in the Code like that.

Commissioner O'Brien inquired about approving a security trailer. Assistant County Manager Peggy Busacca stated staff is investigating whether a mobile home could be put on the property for medical reasons.

Commissioner Higgs advised they did research the impact on schools; it increased the density in that area, although not above the Comprehensive Plan; and the schools served were not over capacity.

Chairman Carlson inquired if staff needs to look into options for how to deal with zoning issues and site plan issues in terms of the overcrowding situation, or should the Board wait until after October. Commissioner Higgs stated it needs to be a part of every staff report. Assistant County Attorney Eden Bentley stated it is in the Comprehensive Plan, and if there is a change in density, the school capacity needs to be addressed.

Motion by Commissioner Higgs, to direct staff add information about impact to schools to every rezoning report.

Assistant County Manager Peggy Busacca stated there was direction at the School Capacity Workshop for the Board to receive the same type of information that Orange County receives; and it will be in all future reports.

Commissioner O'Brien stated he would like to know which schools are already overcrowded. Chairman Carlson stated the Board got that capacity information at the workshop.

Commissioner Scarborough inquired if there is any information about approving the item for medical use; with Zoning Official Rick Enos advising they did not qualify for that because it is necessary to have two acres to qualify.

Commissioner Higgs stated there is more land in the parent parcel; with Mr. Enos responding the total is less than two acres.

Commissioner Scarborough inquired what can they do; with Mr. Enos responding they could request a variance to the size. Commissioner Scarborough stated that would have to go to another board for the variance; and suggested it be approved only for the care of a father living in the adjoining property. Assistant County Manager Peggy Busacca stated there was discussion about conditional zonings; and inquired if this is something that could be done as a conditional zoning. Assistant County Attorney Eden Bentley inquired what kind of land use impact would the condition be mitigating; with Ms. Busacca responding she is not sure. Ms. Busacca inquired if it would be worth tabling for a month to see if it could be worked out. Ms. Bentley stated staff could also look at time frames on conditional use permits; she has never seen a time frame on a rezoning, but has not researched the issue in a couple of years; and there may have been a change. Commissioner Scarborough explained to Ms. Bates that it may be to her benefit to table the item to see if something can be worked out.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to table Item 2 to the September 6, 2001 Board meeting. Motion carried and ordered unanimously.

Item 3. (Z0107103) Joseph Cooper's request for change from GU to ARR on 2.63 acres located on the southeast corner of Jenelle Avenue and Satellite Boulevard, which was approved by the Planning and Zoning Board with a Binding Development Plan limiting development to one homesite.

Commissioner Scarborough stated this is very difficult because the discussion is ARR, but the Office of Natural Resources advises the property is located within the 10-year floodplain and 100% of the property may contain wetlands. He stated he would like to offer return of the fee if the applicant withdraws; and commented on flooding in other areas of the County.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve refund of the fee of the rezoning application upon withdrawal by the applicant. Motion carried and ordered unanimously.

Commissioner Higgs inquired how long is the Board going to continue this; and recommended not accepting such applications. Mr. Enos stated staff has been suggesting to people that such applications have not been considered favorably; however, some individuals have insisted on submitting applications. Commissioner Scarborough stated the Board requested a moratorium; and inquired when that will be coming to the Board; with Ms. Busacca responding the Board is currently considering the elimination of the ARR: and the moratorium on the 25-year floodplain is scheduled for the Local Planning Agency on August 20, 2001. Commissioner Scarborough stated as soon as there is a moratorium, any additional applications will cease.

Nicole Lato advised this was property she was considering purchasing and now she will not.

Item 4. (Z0107104) Davis E. and Gavannah L. Crowley's request for change from AU and RRMH-1 to RRMH-2.5 on 2.79± acres located on the north side of Parrish Road, approximately 0.2 mile west of Hammock Road, which was recommended for approval by the Planning and Zoning Board.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to approve Item 4 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Gavannah L. Crowley thanked the Board for the approval; but expressed displeasure with the amount of time she had to wait this evening.

Chairman Carlson apologized for the wait, but explained the Board has no control over that.

Item 5. (Z0107105) Glen Brown's request for change from GU to ARR on 1 acre located on the north side of Terri Lee Avenue, approximately 0.21 mile east of Satellite Boulevard, which was recommended for approval by the Planning and Zoning Board.

Glen Brown stated he already applied for a building permit, but was held up because of the zoning; and explained his failure to meet the deadline due to caring for his terminally-ill mother until she died. He noted at this time properties on both sides are zoned ARR and have trailers on them.

Zoning Official Rick Enos stated this is not below the 25-year floodplain elevation. Commissioner Scarborough inquired in the past when there was an ARR zoning above the 25-year flood elevation, what was the Board's action; with Mr. Enos responding the Board has been approving them.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to approve Item 5 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 7. (Z0107107) Robert A. and Georgia Hager's request for change from GU to AU on 1.04 acres located on the east side of Knoxville Avenue, approximately 0.27 mile south of Canaveral Groves Boulevard, which was recommended for approval by the Planning and Zoning Board.

Commissioner Scarborough stated he did not see any negative comments; and inquired if that is correct. Zoning Official Rick Enos responded that is correct.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to approve Item 7 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 8. (Z0107108) Joseph R. and Cynthia A. Hurston's request for change from GU to AU on 2.23 acres located on the west side of Fan Palm Avenue, approximately 134 feet south of Date Palm Street, which was recommended for approval by the Planning and Zoning Board.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to approve Item 8 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 12. (Z0107202) Norman (Jr.) and Helen T. Maestre, as Co-Trustees' request for CUP for Alcoholic Beverages for On-Premises Consumption in a BU-2 zone on 0.52 acre, located on the northeast corner of Milford Point Drive and SR 520, which was recommended for approval by the Planning and Zoning Board.

Commissioner O'Brien inquired if any Commissioner has a problem with the item; and no response was heard.

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

Item 13. (Z0107203) Richard Eugene and Sandra Kopp Prickett's request for change from RR-1 to AU on 3.06 acres located on the south side of James Road, approximately 0.37 mile east of Friday Road, which was recommended for approval by the Planning and Zoning Board with a Binding Development Plan limiting use to a palm tree nursery.

Motion by Commissioner O'Brien, seconded by Commissioner Higgs, to approve Item 13 as recommended by the P&Z. Motion carried and ordered unanimously.

Richard Prickett stated in appreciation, he will make some trees available to the County at no cost.

Item 14. (Z0107204) Roopchand and Sylvin Didial, Roy Hosan and Norman Hosan's request for change from BU-1 to BU-2 on 1.20 acres located on the east side of Clearlake Road, directly south of Melrose Street and north of Furnari Street, which was recommended for approval by the Planning and Zoning Board per submitted site plan and with a Binding Development Plan limiting use to a bread distribution center and retail store only.

Attorney Leonard Spielvogel, representing James Walker, stated Mr. Walker has the property under contract; he is from Memphis, Tennessee, but is present tonight; and he is requesting to build a bread distribution center and retail sales of bakery goods for Wonder Bread. He stated the property is zoned BU-1; and they are requesting BU-2 with a binding development plan limiting the use to bread distribution and retail sales facility. He stated there will be no baking onsite; the neighbors have no objection to the request; and there was a unanimous recommendation of approval from the P&Z Board.

Motion by Commissioner O'Brien, to approve Item 14 as recommended by the P&Z Board.

Commissioner Higgs stated there are residences behind the property; and there should be some other configuration so that large trucks are not backed up next to those properties. Mr. Spielvogel stated he appreciates the concern; that is why his client spoke to those neighbors, all of whom gave their approval of the request; and this may be a welcome addition to the neighborhood. He stated under BU-1 they could have bakery sales with baking onsite; there would be deliveries made to the bakery and going out from the bakery; and those things could be objectionable in terms of odor. He stated he wondered why this had to be in the BU-2 classification because once baking onsite is removed, it reduces the objection. Chairman Carlson stated it is the unloading and loading that requires BU-2. Zoning Official Rick Enos advised this is a distribution operation, which requires BU-2. Mr. Spielvogel stated he thought it was warehousing that created a BU-2 category, and the warehousing is only for a short period of time; and the trucks will come in, the bread will be loaded into small vehicles, and it will be distributed to the grocery stores. Commissioner Higgs stated a site plan was submitted which shows a loading dock at the rear of the property abutting the residential properties; and that is the part that concerns her. Chairman Carlson stated the plan shows a four-foot berm on the back; and inquired if that is something that was agreed to by the applicant and the property owners; with Mr. Spielvogel responding yes, and that will be in the binding development plan also. Mr. Spielvogel stated that was part of the agreement with the property owners; and submitted the concept plan with the signatures of the neighbors for approval. Commissioner Higgs stated she still has concerns, and does not know who will live there in the future; and in principle, the zoning is being changed and trucks will be allowed to back up right against residential use; and there should be a way to do it better. She stated she is not against the distribution center or the bakery at this location; but there could be a development plan that would move the loading dock.

Jim Walker stated there will only be four big trucks per week; most of the traffic will be small trucks that are not much bigger than a car; and the flow does not work very well any other way. He stated the berm was his idea; the neighbors did not request it; his granddaughters will own the facility; and he has always been conscious of the neighbors. He stated if there is a problem, they will solve it; but he does not believe there will be a problem with the neighbors at this location. Commissioner Higgs inquired if the trucks will come early in the morning; with Mr. Walker responding one truck, then the small trucks head out to the grocery stores; and there will be about four trucks weekly.

Chairman Carlson stated based on the configuration, it is maximized toward the homes; the only area where the homes exist is on the backside; and inquired if it can be reconfigured. Mr. Walker stated he has done this in 14 states, and cannot think how to reconfigure as it is retail sales which has to be on the front. He stated the truck will unload in the back, and it is only there a few hours; and small trucks will come back to the retail facility from the stores. Commissioner Colon stated it is important to reconfigure.

Motion by Commissioner Scarborough, to table Item 14. The motion died for lack of a second.

Mr. Walker inquired how does the Board want him to reconfigure. Commissioner Scarborough inquired how far back from the houses would the trucks be. Commissioner Higgs stated there is usually a 25-foot buffer between the back of the property and any kind of activity. Mr. Walker stated he can do that. Commissioner Higgs inquired if there is a wall at the rear; with Mr. Walker responding there is a landscaped berm. Assistant County Manager Peggy Busacca advised a wall would be required. Chairman Carlson inquired what was done in the past; with Mr. Enos advising a wall would be required unless some other buffer alternative is approved by the Land Development Office. Chairman Carlson inquired about distance from the lot line; with Mr. Enos responding the structural setback is 25 feet. Chairman Carlson inquired if the plan achieves that; with Mr. Enos advising the structure achieves that, but not the dock. Chairman Carlson inquired if the dock has to be 25 feet from the line; with Mr. Enos responding he is not sure. Commissioner Scarborough stated it is not the structure that will make the noise. Mr. Walker stated he can move the loading dock 25 feet; and inquired about the wall. Commissioner Higgs stated it has to be a six-foot wall. Mr. Walker inquired if it has to be the whole width of the lot, even where there are no trucks; with Chairman Carlson advising that is the Code. Mr. Walker stated there is a problem since he promised the neighbors he would build a berm, and now the wall is required. Commissioner Scarborough inquired if there could be a six-foot berm; with Mr. Enos responding there may be some alternatives that could be worked out through Land Development. Commissioner Scarborough stated the Board could say a six-foot berm in lieu of a six-foot wall.

Motion by Commissioner O'Brien, seconded by Commissioner Colon, to approve Item 14 with a Binding Development Plan providing for a 25-foot setback for the loading dock, six-foot landscape berm at the rear of the property, and use limited to bread distribution center and retail store only. Motion carried and ordered unanimously.

Item 16. (Z0107301) Marge Frego Realty, Inc.'s request for change from AU to BU-1 and a Small Scale Plan Amendment from Neighborhood Commercial to Community Commercial, on 0.35± acre located on the north side of Micco Road, approximately 500 feet west of U.S. 1, which was recommended for approval by the Planning and Zoning Board and Local Planning Agency.

Commissioner Higgs commented on Ms. Frego's participation with the Micco Firefighters.

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to approve Item 18 as recommended by the P&Z Board; and adopt Ordinance amending Article III, Chapter 62 of the Code of Ordinances of Brevard County, entitled "The 1988 Comprehensive Plan", setting forth the Eleventh Small Scale Plan Amendment of 2001, 01S.11, to the Future Land 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 amending to maintain internal consistency with these amendments; providing legal status; providing a severability clause; and providing an effective date. Motion carried and ordered unanimously.

Ms. Frego recommended Ms. Bates put an extension on her house; and stated then her son can live in the extension.

Item 19. (Z0107402) E. Michael and Leslie C. Malone's request for change from AU to BU-1 on 2.05± acres and AU to RU-1-7 with a Binding Development Plan limiting density to one unit only on 0.58 acre on total acreage of 2.63± acres located on both sides of U.S. 1 approximately 1,000 feet north of Ruby Street, and Small Scale Plan Amendment from Neighborhood Commercial to Community Commercial, which was recommended for approval by the LPA and Planning and Zoning Board.

Mike Malone stated his property is located between the Alamo Restaurant and Clayton's Seafood on U.S. 1; it is surrounded by BU-1 zoning; and his request is for BU-1. He presented and explained a map of the area.

Chairman Carlson inquired about the depth of the BU-1; and stated a Small Scale Plan amendment is necessary to change the depth. She inquired what is the actual depth compared to the other BU-1 properties along there. Mr. Enos stated to the south the depth tends to be 175 feet; to the north, it is about 175 feet that immediately adjacent to the property, but then widens as it goes north. Chairman Carlson stated going north, all she sees is AU. Mr. Enos advised there is BU-1. Chairman Carlson stated she has no issue in this case.

Motion by Commissioner O'Brien, seconded by Commissioner Higgs, to approve Item 19 as recommended by the P&Z Board; and adopt an Ordinance amending Article III, Chapter 62, of the Code of Ordinances of Brevard County, entitled "The 1988 Comprehensive Plan", setting forth the Twelfth Small Scale Plan Amendment of 2001, 01S.12 to the Future Land 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. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ZONING RECOMMENDATION OF THE JULY 25, 2001 PORT ST.
JOHN DEPENDENT SPECIAL DISTRICT BOARD MEETING

Item 1. (PSJ10701) Victory Baptist Church, Inc. of Cocoa, Florida's request for Conditional Use Permit for a School in an AU zone, removing the existing CUP for a Temporary Security Trailer on 4.09 acres located on the west side of Capron Road, approximately 0.27 mile south of Kings Highway, which was recommended for approval by the Port St. John Dependent Special District Board with a limit of 80 students and a Chapter 62, Article VIII Site Plan.

Commissioner Scarborough stated there were negative comments at the meeting; but the vote was unanimous for approval; and inquired if anyone is in opposition. No response was heard.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to approve Item 1 as recommended by the Port St. John Dependent Special District Board.

Chairman Carlson stated there was a comment during the briefing about limiting it to 80 students. Commissioner Scarborough stated that was the recommendation, which was included in the motion. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ZONING RECOMMENDATION OF THE JULY 25, 2001 NORTH
MERRITT ISLAND DEPENDENT SPECIAL DISTRICT BOARD MEETING

Item 1. (NMI10701) George A. and Barbara H. Ogle's request for change from AU to SR on 0.579± acre located on the east side of North Tropical Trail, approximately 650 feet north of Church Road, which came to the Board with no recommendation from the North Merritt Island Dependent Special District Board.

John Campbell, representing the applicant, stated he is a surveyor from North Merritt Island; Mr. Ogle attempted to sell the parcel; the parcel was created in 1967 by one of the pioneer Merritt Island families; and explained how the division took place. He stated this is an illegal building site; in order to make it legal, they propose to enlarge it to the area encompassed in orange on the map; and advised the area that is cross-hatched is the original Tax Parcel 41. He stated they are increasing the size of the property by approximately .2 acre; it is a modest bungalow of 1,200 square feet; and they are trying to make this a legal building site so there will not be trouble with financing, etc. He stated the property has been taxed over the years; there are no objections from the neighbors; there is no attempt to make additional smaller parcels; and Mr. Ogle plans to retire on the property. He stated the purpose is to take the 1967 parcel, increase it in size to almost .6 of an acre, and make it legal. He stated the question came up before the Dependent Special District Board, if there were 22 acres, and it is zoned AU, why cannot the size just be increased to 2.5 acres; and there are a couple of reasons why Mr. Ogle does not want to do that. He stated there is a green pond to the east of the property; Mr. Ogle has grandchildren; the pond is stocked; and he does not want to get rid of the pond, so it cannot move to the east. He stated he cannot move it farther to the south because there is a driveway that serves the pioneer house that was built in 1910; and there are also some conflicts with septic tanks and drainfields. He stated the vote of the North Merritt Island Dependent Special District Board was tied, and there was no recommendation. He stated the purpose of the rezoning request is to make the site legal; and requested SR zoning.

Commissioner O'Brien inquired if the reason for the request is to bring the lot into compliance with the Zoning Code. Mr. Enos stated that is correct.

Motion by Commissioner O'Brien, seconded by Commissioner Colon, to approve Item 1. Motion carried and ordered unanimously.

Commissioner Higgs stated a card was submitted.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to reconsider the motion. Motion carried and ordered unanimously.

Simone Spiess, on behalf of the North Merritt Island Homeowners Association, stated they considered the request at the July 2, 2001 meeting; the Association considers this an undesirable precedent by creating SR within an AU area; and they would like the Board to recommend the parcel be enlarged. She stated with 22 acres, she cannot believe there is no way around the problem. She stated the Association would like it brought up, if not to 2.5 acres, at least to RR-1, which is more in line with the area.

Mr. Campbell stated he is only talking about two houses on 22 acres; Mr. Ogle has lived on the property for many years; he is going to retire on the property; and all he wants to do is to sell a piece for rental income. He stated it is not his intention to request additional SR zoning; the Comprehensive Plan calls for two units per acre in this area, so they are in compliance with that; and requested the Board consider the rezoning. He stated this is a historic piece of land; to cut it up is not going to accomplish anything; and the character of the property is not going to change. He noted Mr. Ogle had nothing to do with creating the illegal site; and reiterated his request for the Board to consider the special circumstances.

Commissioner Higgs inquired if there is something that could be done that would be less likely to create a precedent. Assistant County Attorney Eden Bentley stated anything the Board would do would be binding this parcel to the rest of the parcel, which is what the applicant is saying he does not want to do. Chairman Carlson stated they want to sell it. Ms. Bentley stated she does not see a way out with the binding development plan. Assistant County Manager Peggy Busacca stated in the past under similar circumstances, the Board has chosen to consider a vested rights claim; she is not sure there are facts to support that in this case; but it has been done in the past in lieu of rezoning a piece of property. Chairman Carlson stated the applicant would have to apply for vested rights.

Mr. Campbell inquired when zoning came in; with Zoning Official Rick Enos responding May 22, 1958. Mr. Campbell stated the illegal parcel was created in 1967; if it was a nonconforming lot, there wouldn't be a problem; and there are many pieces of quarter-acre and half-acre parcels in North Merritt Island. He stated he lives on North Merritt Island in an RR-1 community; he is familiar with the mindset of the community; and they are taking a man's property and creating something that is legal.

Commissioner Higgs recommended focusing on some way to do it besides a precedent-setting zoning. Ms. Busacca stated vested rights are the best idea she has. Commissioner Higgs inquired if it would qualify for vested rights; with Ms. Busacca responding that is up to the Board, but there have been similar decisions in the past.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to tabled Item 1 to September 6, 2001 Board meeting to allow the applicant to pursue vested rights process, with waiver of fees for vested rights.

Mr. Campbell inquired when this would be heard again; with Commissioner Higgs responding it would be tabled to the next zoning meeting. Ms. Busacca advised vested rights requires an LPA hearing. Ms. Bentley stated the LPA can be avoided; but the process will take longer than a month. Ms. Busacca stated it would be possible to get it on the August 28, 2001 agenda, assuming the LPA is not required.

Discussion ensued on the time frame.

Commissioner Colon inquired if Ms. Spiess understands what is being done because of the Board's desire to not set a precedent; with Ms. Spiess inquiring if it would be vested on the .4 acre. Ms. Busacca stated it would not change the zoning map; the designation would remain the same on the zoning map; but the structure would enjoy a type of grandfathering. Ms. Spiess inquired if that would transfer to the future owner; with Ms. Busacca responding that is correct. Ms. Spiess stated that is preferable to SR, if it can be worked out.

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

Ms. Bentley inquired if that is tabled to August 28; with Chairman Carlson responding that is correct. Ms. Busacca stated the tabling is until September 6, 2001, and the vested rights will be August 28; and if the vested rights are granted, the zoning can be withdrawn.

Item 2. (NMI10702) North Merritt Island United Methodist Church's Inc.'s request for a CUP for a Security Mobile Home in an AU zone on 11.4 acres located on the north side of SR 3, approximately 800 feet west of Pine Island Road, which was recommended for approval by the North Merritt Island Dependent Special District Board for three years with two one-year administrative renewals.

Motion by Commissioner O'Brien, seconded by Commissioner Colon, to approve Item 2 as recommended by the North Merritt Island Dependent Special District Board. Motion carried and ordered unanimously.

CONSIDERATION, RE: REPORT CONCERNING EXPANSION OF FARMERS MARKETS
TO INCLUDE SALE OF SMALL ANIMALS AND LIVESTOCK

Commissioner Scarborough stated there are four concepts; and requested staff go over them. Planner Todd Corwin stated the report sets forth four concepts; and the first concept deals with permitting the sale of livestock and small farm animals for farmers markets located in productive agriculture or an agriculture zone; and the minimum lot size would be ten acres. He advised the ten-acre lot size was suggested to limit any aspects that may come from the farmers market for the neighboring properties. He stated the second option also permits the sale of livestock and small farm animals from farmers markets; but on markets on less than ten acres, there are density restrictions for animals as well as a collector road criterion and a 100-foot setback requirement. He stated concept three establishes a new permitted with conditions on livestock auction houses; it would be an area where livestock and small animals could be auctioned; and the minimum lot size would be ten acres with collector roadway and setback requirements. He stated concept four is changing it from a conditional use permit for farmers market to permitted with conditions; however, this concept does not include the sale of small animals and livestock; and maintains the status quo except for making it permitted with conditions instead of a CUP.

Commissioner O'Brien stated that would be most appropriate being permitted with conditions instead of making it a CUP; a CUP is there forever, but a permit with conditions allows the permit to be removed if the conditions are broken. He advised of possible conditions such as parking, etc.

Diane T. Davis requested the Board adopt concept number one; number two goes down to too small an acreage; she does not like number three because it has to be consistent with the Land Use Plan, and she would guess there are no animal auctions in the County's Land Use Plan; and number four is too restrictive. She stated she favors concept number one; it would require a large acreage that would be needed to have parking onsite, and there are conditions that have to be met; and requested the Board approve number one.

Commissioner Scarborough stated the Board would be advertising the proposed ordinance. Chairman Carlson inquired if it can be advertised and then have additional discussion so there is time to review this better. Commissioner Scarborough inquired if Chairman Carlson is suggesting advertising all four concepts; with Chairman Carlson responding yes, unless the Board chooses to chisel it down to a couple of options. Assistant County Manager Peggy Busacca stated that would involved advertising four separate ordinances; and suggested advertising the conditional use permit as one ordinance and the permitted uses with conditions as another. Commissioner Scarborough stated he would like to have flexibility for the public hearing; and otherwise the Board will get to the public hearing and get some good ideas, and then have to re-advertise. Ms. Busacca stated staff can advertise two ordinances, one for CUP's and one for permitted uses with conditions. Zoning Official Rick Enos advised all four alternatives are permitted with conditions. Commissioner Scarborough recommended advertising it with flexibility; with Ms. Busacca responding that can be done. Commissioner Scarborough stated Ms. Davis' idea would be included, but the Board will see what else might come to the table.

Ms. Davis requested the group in support of the concept to stand; and a small group stood.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to grant permission to advertise an ordinance for expansion of farmer's markets to include sale of small animal livestock; and direct that it be advertised with enough flexibility that any of the four options may be considered. Motion carried and ordered unanimously.

Commissioner Higgs stated the only thing different in the third option is that it has to be consistent with the Future Land Use Map, and that means it would include agriculture.

Upon motion and vote, the meeting was adjourned at 11:56 p.m.

___________________________________
ATTEST: SUSAN CARLSON, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

____________________
SCOTT ELLIS, CLERK

( S E A L )