The Board of County Commissioners of Brevard County, Florida, met in regular session on December 3, 1998, at 5:35 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Truman Scarborough, Commissioners Randy O'Brien, Nancy Higgs, Sue Carlson, and Helen Voltz, Assistant County Manager Peggy Busacca, and Assistant County Attorney Eden Bentley.

The Invocation was given by Commissioner Truman Scarborough, District 1.

Commissioner Helen Voltz led the assembly in the Pledge of Allegiance.

REPORTS, RE: RESCHEDULING OF DECEMBER 15, 1998 MEETING

Commissioner Carlson inquired if the December 15, 1998 meeting could be changed to an evening meeting and a time certain assigned for the power plant issue; with Chairman Scarborough responding it would need to be advertised.

Assistant County Manager for Community Development Peggy Busacca advised vacatings and ordinances have been advertised for public hearings at 9:00 a.m., and would require re-advertising.

Chairman Scarborough suggested splitting the meeting between the morning and evening, or taking the power plant issue in the evening. Commissioner Voltz stated she does not know what her schedule is and if she will be available that evening. Chairman Scarborough inquired if staff could contact the Commission Offices and get a consensus on coming back in the evening to do two hearings; with Commissioner Voltz responding she does not want to do that; and someone should have called their offices to find out if they would be off in the evening. Commissioner Higgs stated she would only want to do the moratorium issue if they have to come back in the evening, but all the items have already been advertised for the day meeting. Chairman Scarborough stated if they have at least ten people, they can get a time certain; and he will give the power plant issue a time certain if Commissioner Carlson requests it.

The Board took no action to change the December 15, 1998 meeting.

REPORT, RE: REBATE FROM COMMERCIAL PAPER PROGRAM

Commissioner Voltz advised Brevard County received $10,764.13 from the Florida Association of Counties Conference for its participation in the Commercial Paper Rebate Program.

PUBLIC HEARING, RE: TABLED ZONING ITEMS FROM JULY 8, 1998 PORT ST. JOHN ADVISORY BOARD, AND MAY 5 AND SEPTEMBER 1, P&Z BOARD

Chairman Scarborough called for the public hearing to consider tabled items as follows:

Item 1. (PSJ80701) P.S. J. Investments, Inc.'s request for change from BU-1 to BU-2 with BDP for mini-warehouses on 0.68 acre located on the north side of Palm Street, west of U.S. 1, which was recommended for approval by the P&Z Board with a buffer on the west property line.

Zoning Official Rick Enos advised Item 1 was withdrawn.

Item 6. (Z9705201) Ronald E. Dimenna's request for change from SR to SR with BDP for maximum of 1.23 units per acre on 21.24 acres located on the south side of North Tropical Trail, west of Colony Park Drive, which was recommended for approval by the P&Z Board with a BDP as voluntarily submitted by the applicant.

Commissioner O'Brien advised the St. Johns River Water Management District was unable to approve the recent plans.

Surface Water Improvement Director Ron Jones advised the applicant has been working with the St. Johns River Water Management District to develop a plan for drainage for the property; they wanted to work with St. Johns River Water Management District before coming to the Board; staff is in touch with the District and has been working with them on those issues; and they are requesting additional time as a result of that.

Commissioner O'Brien stated one of the problems is they want to use pumps to remove the water, but if there is power outage their property and adjacent properties will be flooded. He recommended the item be tabled for six months or until they come to an agreement with St. Johns River Water Management District. Commissioner Higgs stated six months is excessive, and suggested three months. Chairman Scarborough stated it violates due process because of notice, as there has to be re-notification; and recommended denying the item. Commissioner Voltz suggested withdrawing the application and reapplying when they are ready. Commissioner O'Brien stated they would have to pay the application fee again; with Commissioner Voltz responding the Board can waive the fee.

Commissioner O'Brien stated he would need competent and substantial evidence to deny it and waiver of time to reapply. Commissioner Higgs stated there is no competent or substantial evidence to approve the item, so if it is denied and waive the time to reapply, they would have an opportunity to do that.

Motion by Commissioner O'Brien, seconded by Commissioner Higgs, to deny Item 6, and waive time and fee for reapplication.

Chairman Scarborough inquired how much are the fees; with Zoning Official Rick Enos responding about $500 to cover notifications and advertising.

Commissioner O'Brien amended the motion to waive only the time; and Commissioner Higgs accepted the amendment. Chairman Scarborough called for a vote on the motion. Motion carried and ordered unanimously.

Item 4. Brevard County Board of County Commissioners, on its own motion and pursuant to Circuit Court Case No. 97-081-118-AP, authorized administrative rezoning of .87 acre owned by Tad Allen Kokoszka, and located on the east side of U.S. 1 south of Broadway Boulevard, from RU-2-10 to RP, which was recommended for approval by the P&Z Board.

Mr. Enos advised the property owners came to an agreement on a binding development plan with several provisions.

Betty Maxwell advised they own the property immediately to the south; and inquired she would like to know what is being done.

Chairman Scarborough directed staff to give Ms. Maxwell a copy of the agreement to review with Mr. Kokoszka; and stated the Board will postpone the item until they are ready.

Item 5. (Z9809202) Ipco, Inc.'s request for change from BU-1 with CUP for alcoholic beverages on-premises consumption and CUP for commercial entertainment and amusement enterprises, and BDP to BU-1 with amendment to the BDP and retaining the existing CUP's on 9.57 acres located on the south side of Fortenberry Road, west of Sykes Creek Parkway, which was recommended for approval by the P&Z Board with the stipulation that the CUP for sale of alcoholic beverages be removed, the west end of the property south of Kennedy Space Center Credit Union be exempt from the CUP for commercial entertainment and amusement enterprises, BDP is not applicable to permitted BU-1 uses, hours of operation be 11 p.m. on Friday and Saturday and 9 p.m. on weekdays; no access to Plumosa for entertainment activities; and remove driving range activities.

Attorney Richard Amari, representing the applicant, advised the property is zoned BU-1 and has a BDP for the entertainment complex; it is located behind the Merritt Square Mall, and being utilized as a putt-putt golf course and batting cage facility; and it has a driving range, but the range is currently not in use. He stated the applicant proposes to eliminate the driving range, waive the alcoholic beverages permit, and develop a skateboard park and BMX bicycle course; and the BMX track is for bicycles only, no motorcycles, golf carts, or motorized vehicles. He explained the modifications to the plan to address the concerns of some neighbors, the current complex activities, and locations of the surrounding condominium buildings, Merritt Square Mall, and the Credit Union building. Mr. Amari advised the putt-putt golf course will be turned into a skateboard park; they released the CUP in effect for a portion of the property to meet some of the concerns of the neighboring landowners; and they agreed to limit ingress and egress to Fortenberry Road, and not use Plumosa Street to service the entertainment parcel. He stated County staff expressed concerns about alcoholic beverages not being consistent with the use by young children, so the permit is being released. Mr. Amari advised they must maintain a vegetative buffer; there is a well-developed buffer along the southern boundary which buffers the use of the property from adverse effects to neighbors to the South; and the skateboard park will be in the very far corner of the property and over 220 feet from the closest building, so most condominiums will be at least a football field away from the skateboard park. He stated they agreed to limit the hours of operation for the skateboard and BMX facilities to no later than 10:00 p.m. Sunday through Thursday, and no later than 11:00 p.m. on Friday and Saturday. He noted they have an amended and restated BDP; County staff is in agreement that it meets the terms set forth and conditions set by the P&Z Board; and they have met with neighboring landowners and believe the BDP will address most of their concerns.

Commissioner Voltz advised Mr. Amari said the buffer is on the south property line; the BDP states the developer/owner shall provide the landscape buffer zone, setbacks, and four-foot high berm along the north property line; and inquired if that is an error; with Mr. Amari responding there is also a buffer along the north property line, and pointed out the buffers on the drawing. Mr. Enos inquired if Item 4 intends to read both north and south property lines; with Mr. Amari responding that was a condition which carried over from the old BDP; and the intent is to buffer the north and south property lines.

Commissioner O'Brien inquired if the County's water retention area for Ridge Manor is noted on the location map; with Mr. Amari responding it is the County's water retention facility.

Tobi Baker advised Paradise Sportsplex plans to build a skateboard ramp and BMX bike trails; it is her front door neighbor and she can see the sportsplex and batting cage from her windows and front porch; and whether there is someone in the cage or not, the pitching machine runs and gives off a high-pitched sound. She stated when a batter is hitting balls with an aluminum bat, it makes a loud noise; the batting cage is within 500 feet of her property; and Felix Nelson, land surveyor for the County, said it is 500 feet. She stated Harbor Woods was not notified about the batting cage when they applied for a permit; if they were, they would have told the owner to put it somewhere else on his property; and now the Sportsplex wants permission to build an ESPN-specification skateboard ramp and BMX bike trails. She stated the ramp will be huge; the proposed location is within 500 feet of their property; and presented pictures to the Board. She stated if ESPN chooses to do a remote from the sportsplex, there will be thousands of people at the events; there is no room in the sportsplex for that many people and much less parking space; and the same is true for the BMX competition remotes. She stated the Mall parking lot will be affected; the sportsplex owners would have to obtain permission from the Mall owners and pay deputies to direct traffic; and Harbor Woods residents have a terrible time turning on Fortenberry every day without special events. She stated because Harbor Woods entrance does not line up with the southwest access of the Mall, the County will not put a traffic light or crosswalk for Harbor Woods; and explained an accident on Fortenberry Road and careless crossing by pedestrians. She stated unless the Commissioners would welcome such a business close to their homes, they should deny the request to operate a skateboard ramp and BMX bike trails so close to her home.

Tony Raker advised he lives directly behind the complex and can see the batting cage from his front door and the area proposed for the bike trails and skateboard ramp; he does not wish to hear the noise from those facilities, as there is enough noise coming from the batting cage; and requested the Board vote it down.

Mr. Amari advised the applicant obtained signatures on a petition from over 300 individuals in favor of the project. Chairman Scarborough inquired if it was from the neighborhood or Countywide; with Mr. DeSousa responding it was signed by everyone who came into his shop from all over the County. Mr. Amari advised the batting cage is directly behind the landscape buffer; the reason they can see it is because there is a breech in the landscape buffer that was done by the County when it installed the drainage pipe to the retention area; and presented and explained pictures of the area.

Chairman Scarborough advised the purpose of summarizing is to comment on the public comments; if the applicant introduces new items, the Board will need to open it up again for public comment on the new items; and advised Mr. Amari to restrict himself to commenting on the public's comments. Mr. Amari apologized and stated there is a large vegetative buffer that will buffer the noise; the facility will be built with sound deadening devices to keep the noise level down; it has been a golf driving range, batting cage, and putt-putt golf facility for eight years; and there has never been one police call to the business in that period of time. He stated it is a well run family operation; Mr. DeSousa is there every day and cares how his operation is run; and it is a sorely needed place. He stated municipalities are trying to do their own parks because they see the need for youth to get them off the streets and in areas where they are not in danger or hazardous to the public. He stated skateboarding is recognized as an extreme sport; if they can get ESPN to cover one of the functions it would be a boon to Brevard County; and they would work with the local police and handle the parking problems.

Commissioner O'Brien inquired if Mr. Amari met with the condominium residents; with Mr. Amari responding they met with about 30 residents, took them to the facility and showed them the location; and walked the park. He stated several of them had many concerns, but most were satisfied; and the fact that only two people are here voicing objections is indicative that they did a lot to satisfy the concerns. Commissioner O'Brien inquired if Mr. DeSousa will replant some of the thinned out areas of the vegetative buffer; with Mr. Amari responding he is required to maintain the vegetative buffer, and if there is an area which needs to be spruced up, he will take care of it. Commissioner Voltz inquired about the area the County took out; with Dennis DeSousa responding he planted the vegetative buffer zone; it was removed for the County to put in the water retention area; the County replaced the chainlink fence and cable, but not the vegetation; however, if he has to replace it to get approval, he will do it.

Commissioner Carlson inquired what kind of technology will be used to reduce the noise from the skateboard ramp; with Mr. DeSousa responding since it is an outside ramp, it would have wood covered with sheetmetal; the sheet metal will deaden the noise of the wood; and on top of that will be painted a fabric rubberized film so the neighbors will not hear the noise. Commissioner Carlson inquired if the BMX track is built up; with Mr. DeSousa responding no, it will be two dirt jumps side by side with a crossover where children can express themselves with free style jumping; and it has no noise involved with it.

Chairman Scarborough inquired if Mr. Raker attended the meeting and how many people were there; with Mr. Raker responding yes, and there were about 15 to 20 people, not 30. Chairman Scarborough inquired why they were not here at the meeting; with Mr. Raker responding he does not know but heard they would have a petition from the board of directors.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to approve Item 5 as recommended by the P&Z Board, with removal of the CUP for sale of alcoholic beverages; vegetative buffer on the north and south property lines; west end of the property south of Kennedy Space Center Credit Union site exempt from the CUP for commercial entertainment and amusement enterprises; the BDC not be applicable to permitted BU-1 uses; hour of operation be 11:00 p.m. Friday and Saturday and 9:00 p.m. Sunday through Thursday; no access to Plumosa; and removal of the driving range.

Mr. Enos advised the application was for 10:00 p.m. for Sunday through Thursday hours of operation; with Commissioner O'Brien responding 9:00 p.m. is fine as stated in the motion.

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

Chairman Scarborough inquired if the issues were resolved and if there are no objections; and heard none.

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

PUBLIC HEARING, RE: PLANNING AND ZONING RECOMMENDATIONS OF NOVEMBER 2, 1998

Chairman Scarborough called for the public hearing to consider the recommendations of the Planning and Zoning (P&Z) Board, made at its public hearing on November 2, 1998, as follows, then passed the gavel to Vice Chairman Higgs:

Item 1. (Z9811101) Scott A. Turner and David S. Turner's request for change from GU to ARR on 1 acre located on the north side of Terri Lee Avenue, east of Satellite Boulevard, which was recommended for approval by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item 1 as recommended by the P&Z Board. Motion carried and ordered; Commissioner Higgs voted nay.

Item 2. (Z9811102) Brevard County Board of County Commissioners on its own motion authorized administrative rezoning of 22 acres owned by Florida East Coast Railway Co. located at the east end of Parrish Road, from AU to PIP, which was recommended for approval by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item 2 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 3. (Z9811103) James E. Talbott's request for change from GU to ARR on 1 acre located on the north side of Olkowski Avenue, east of Ardelle Lane, which was recommended for approval by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item 3 as recommended by the P&Z Board. Motion carried and ordered; Commissioner Higgs voted nay.

Item 4. (Z9811104) Terry L. and Janet E. Kuhnhausen's request for change from GU and TR-2 to RRMH-1 on 1.64 acres located on the west side of Burgess Avenue, north of Camp Road, which was recommended for approval by the P&Z Board.

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

Item 5. (Z9811105) Yasecko Family Trust's request for change from GU to ARR on 2 acres located on the north side of Missile Avenue, east of Satellite Boulevard, which was recommended for approval by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to approve Item 5 as recommended by the P&Z Board. Motion carried and ordered; Commissioner Higgs voted nay.

Commissioner O'Brien stated he agrees with Commissioner Higgs that approval of rezoning in West Canaveral Groves will be a disaster if kept up, and an undue burden on the taxpayers; consequently, he will also vote nay on those items.

Item 6. (Z9811106) Orlando Utilities Commission's request for CUP for towers and antennas in GU zone on 16.8? acres located between Frontage Road and I-95, south of SR 407 intersection, which was recommended for approval by the P&Z Board.

Zoning Official Rick Enos advised Item 6 was withdrawn.

Item 7. (Z9811201) City of Cocoa's request for CUP for towers and antennas in GML(H) zoning classification on 5.75 acres located on the north side of SR 520, east of Milford Point Drive, which was recommended for approval by the P&Z Board.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to approve Item 7 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 8. (Z9811202) Michael J. and Lorraine Pelosi's request for CUP for alcoholic beverages on-premises consumption in BU-2 zoning classification on 0.69 acre located on the north side of SR 520, east of N. Courtenay Parkway, which was tabled to the January 4, 1999 P&Z Board meeting.

Motion by Commissioner O'Brien, seconded by Commissioner Carlson, to table Item 8 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 9. (Z9811203) Ronald D. and Ivy Taylor's request for change from AU to BU-1-A on 1.01? acres located east of SR 3 and adjacent and immediately north of Sykes Creek Wastewater Treatment Plant, which was recommended for approval by the P&Z Board.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to approve Item 9 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 10. (Z9811301) North Cypress Reserve, Inc.'s request for change from GU to AU and CUP for land alteration on 48.45 acres located on the north side of Micco Road, east of I-95, which was recommended for approval by the P&Z Board.

Commissioner Higgs advised she talked to Clifton McClelland, attorney for the applicant about the concerns of residents on direction of the trucks, hours of operation, days of operation, and repair of roads; and inquired which way will the trucks go; with Attorney McClelland responding the applicant will use a haul route to the west; and they will operate from 7:00 a.m. to 5:00 p.m., Monday through Saturday. Commissioner Higgs inquired if the site is totally surrounded by the applicant's property; with Mr. McClelland responding yes, and they will place a buffer in the front of the area that will be excavated. Commissioner Higgs inquired if that is part of the binding development plan; with Mr. McClelland responding yes.

Motion by Commissioner Higgs, seconded by Commissioner Voltz, to approve Item 10, as recommended by the P&Z Board, with a binding development plan providing for the haul route to the west, buffer, and days and hours of operation being 7:00 a.m. to 5:00 p.m. Monday through Saturday. Motion carried and ordered unanimously.

Item 11.(Z98111302) Dixie Concrete, Inc. and Merritt Concrete Equipment Co.'s request for CUP for towers and antennas in IU-1 zoning classification on 4.33? acres located on the west side of Old Dixie Highway, south of Valkaria Road, which was withdrawn by the applicant.

Item 12. (Z9811303) Donald J. Berry's request for change from AU and RR-1 to all AU on 14.67 acres located at the northwest terminus of 3rd Street, which was recommended for approval by the P&Z Board.

Motion by Commissioner Higgs, seconded by Commissioner Voltz, to approve Item 12 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 13. (Z9811401) The Highlands Group's request for CUP for towers and antennas in BU-2 zoning classification on 4.86? acres located on the north side of Suntree Boulevard, east of Wickham Road, which was recommended for approval by the P&Z Board.

Phil Swatek, representing Suntree Master Homeowners Association, advised when he addressed the P&Z Board he objected to a strobe light; they said no lights, but Mosquito Control has an option whether a light goes on or not; they decided to approve red beacon on top and in the middle of the tower; and the conditions are subject to change. He stated they want to put on the record that they object to strobe lights.

Mary Doty, representing PrimeCo, advised the Board's package explains the site; she would like to put a copy in the official records; and if the Board has any questions, there are representatives present to answer them.

Commissioner Carlson inquired about the existing vegetation on the site; and Sheryl Denan, representing PrimeCo, presented and explained pictures of the site with the existing vegetation. Ms. Doty advised the County signed off on their site plan.

Chairman Scarborough recommended consistency in the Ordinances so the County does not get trapped and to include no strobe lights. Mr. Enos noted the lighting issue has always given staff problems, and it is a good idea to include something in the Ordinances regarding lighting on towers. Ms. Denan stated what was required was a continuous burning red beacon.

Motion by Commissioner Carlson, to approve Item 13, with no strobe light anywhere on the tower.

Commissioner Higgs inquired if FAA could require lighting if the Board changes its Code; with Assistant County Attorney Eden Bentley responding FAA requirements will always override the County's requirements. Commissioner Higgs stated the Board can guarantee it will not allow strobe lights, but it has no jurisdiction over the FAA.

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

Item 14. (Z9811402) Bobby Daniel Martoma's request for change from RR-1 to BU-2 on 1.003 acres located on the east side of Murrell Road, north of Barnes Boulevard, which was recommended for approval by the P&Z Board of BU-1 as amended by the applicant.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to approve Item 14 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 15. (Z9811403) Charles R. Stack, Trustee's request for change from BU-1, RU-2-10, and PUD to PUD on 30.50? acres located on the north side of Wickham Road, east of Murrell Road, which was recommended for approval by the P&Z Board.

Commissioner Higgs advised she met with Lisa Smith and Mr. Settle and expressed desire for 200 units, talked about Comprehensive Plan, issues of the environment, buffers, oak hammock, chain link fence, development rights, PUD, RU-2-10, open space, and trip generation.

Tom Cavanaugh, President of P.A.C. Land Development Corporation, representing the applicant, advised Joe Mayer will present the facts.

Joe Mayer, Project Engineer, advised the proposal is a 280-unit multifamily apartment complex located on 30.5 acres with frontage on Wickham Road; and the entrance would be on the north side of Wickham Road about 800 feet west of the intersection of Turtlemound and Wickham. He stated the current zoning is BU-1 and RU-2-10; the commercial fronts on Wickham Road, and RU-2-10 on the rear portion of the property; and they are requesting a PUD zoning classification. He stated the allowable density under the current zoning is ten units per acre; the proposed density is 9.18 units per acre; the project will consist of ten 28-unit buildings and a clubhouse; and the two-story buildings will be on the outside portion and three-story buildings in the center. Mr. Mayer advised of amenities which will include natural preservation areas such as the wetland maple hammock and oak hammock, active amenities such as a private park, tennis court, tot lot, and barbecue area; and stated approximately 95% of the trees can be preserved. He noted the entire central portion of the project will be left natural and aesthetically pleasing; the total acreage is about 11 acres which is 3.5 acres more than the Code requires; and the only issue they are aware of is the buffering along Renaissance Point which Mr. Settle will address.

Tom Settle advised the area of contention is between the western edge and wetland slough which comes closest to any existing or proposed residential development; Mr. Ackerman is the President of Tiffany Homes who is building upscale duplex units on adjacent property; and they have met to work things out and discussed various ways to buffer visually and aesthetically. He stated their development will be a gated community; the perimeter of the property was proposed to be fenced with chainlink; and Mr. Ackerman and Mr. Haley asked that they do another type of treatment that would be aesthetically pleasing. Mr. Settle stated he gave Mr. Haley a handwritten agreement to do an aluminum wrought iron fence with stuccoed pillars and plant potacarpus in front of the fencing. He stated County Code requires them to plant oak trees along there, so they propose to plant laurel oaks at minimum height of 12 feet every 25 feet along that border because they are fast growing trees. He noted they also plan to have heather as ground cover.

Mr. Mayer advised since the P&Z Board meeting, they have pulled the parking area along the north property line back as far as they can; it is now ten feet to the closest point and trails away to about 20 feet; so there is a fair amount of room along that north line to provide additional landscaping and buffering.

Guy Smith advised he does not see the location of the Renaissance on the site plan and is concerned about how close his unit and his neighbor's unit is to the parking area. Mr. Mayer advised they are set back from the property line to the first building a minimum of 25 feet; there will be ten to 20 feet on their side before the parking area starts; and their building will set back 50 feet from the north property line. Mr. Smith indicated it would not be far from the cars' bumpers to the house; and when they drive into the parking lot they will look right into the patio and back door which affects his property value. He stated the headlights would shine straight through the back of his unit from the patio slab. Mr. Smith stated he heard the density was going from ten to nine, but some of the 30 acres is retail; and he is not sure whether that part is included in the total acreage which would mean a much higher density adjacent to his property than would otherwise be there if they did not get a variance or whatever the Board is considering giving them. Commissioner Higgs advised there is no variance before the Board tonight. Commissioner Carlson stated they are requesting PUD zoning which gives them flexibility with setbacks.

Mark Ackerman, President of Tiffany Homes, advised he is building the property contiguous to the applicant's property; there are three pertinent issues; and one is the close proximity of the parking lot to their property, as it will be two and three-story buildings next to single-story upscale villas. He stated they had concerns about the chainlink fence and no plans for a vertical buffer; they met with the developer; new ideas are on the table that are superior to the initial proposal; he said a masonry wall would be more appropriate to keep lights out and for security; but they proposed something different. He stated the Board should give consideration to the density, height and security of the two properties; four-foot plantings should be six feet; and the wrought iron fencing is less expensive than a masonry wall, so there should be alot of vertical plantings. Mr. Ackerman stated the agreement with Mr. Haley addresses the cul de sac; it does not continue the issue for the rest of the boundary line; and although Mr. Cavanaugh related they intend to continue a planting line, he has no formal indication of that, so it should be stipulated as part of the approval.

Commissioner Voltz inquired if Mr. Ackerman's group decided it may want to split the cost of the buffer with Mr. Cavanaugh who is a new developer, since they did nothing when they put in their homes to prevent something like this from going in next door; with Mr. Ackerman responding he was not the developer of the property and bought it from a developer; however, Mr. Haley, who is the developer and President of Suntree Partners, has mentioned that he would share in an expense with Mr. Cavanaugh to upgrade the fence from a chainlink fence which was unacceptable. Commissioner Voltz stated that would be great, because whoever put the complex together did not think about a buffer from the adjacent property since it had large trees on it at the time. Mr. Ackerman stated they may have counted on the fact it was a higher density, and the Board would require a buffer between the different uses. Mr. Ackerman stated he is not against getting involved and helping; and they may put up some of their own shrubs, as he has an obligation to his customers. He talked about being good neighbors, his experience as a builder, the Suntree community, and the changes made since the P&Z meeting.

Commissioner Carlson inquired if Suntree Partners asked for a waiver to push the cul-de-sac closer to the property line; with Assistant County Manager for Community Development Peggy Busacca responding yes, in 1997. Commissioner Carlson advised because of the situation, the fairest thing to do would be to have a solid wall on the northwest portion of the property all the way to the edge, with both developers sharing the cost, and each responsible for vegetation on their sides of the wall so they do not have to worry about lights, and it would be consistent with Suntree. She inquired if that would be a reasonable compromise; with Mr. Ackerman responding he cannot speak for Mr. Haley because Phase II is not a platted area yet. He stated as the builder he would be willing to cooperate financially in trying to resolve the issues.

Tom Cavanaugh advised he is willing to put up a block wall and will commit to that; and extended an invitation to the owner/developer and lot builder to split the cost with him. He stated it would solve everyone's problem; homeowners are entitled to quiet enjoyment of their residences; but he disagrees with having the full burden fall on his shoulders.

Carol Houge advised she is the immediate abutting neighbor at the end of the cul-de-sac and was not sure where the building would be in relation to her property. She stated it would be a beautiful community, but she has concerns about the ecology, aesthetics, and her privacy. She inquired if there will be a ten to 20-foot buffer; with Mr. Mayer responding the parking spaces at the closest point will be ten feet; and as it goes towards the wetlands it will get to 20 feet away from the adjacent property.

John Daigneau stated there are beautiful trees at the end of the cul-de-sac; he is against developers who come in with bulldozers and destroy the ecology; and inquired why they would knock down all the trees when there are some that could provide a natural vertical buffer. Commissioner Carlson advised there is a huge incline because of the buildup on Suntree Partners' property; and if they fill their side, the pines will not survive. She inquired if staff had anything to say about saving the existing vegetation; with Mr. Enos responding Commissioner Carlson is correct that if they fill around a pine tree it will kill it. Mr. Mayer advised there is about a three to four-foot elevation difference between the existing grade and the grade of Renaissance Point; they will be required to raise their site to some degree; so the pine trees will not survive. He stated the oak trees in the corner will be saved and will provide a vertical buffer; and the trees that will be planted will grow and provide additional buffering. Commissioner Higgs stated Renaissance Point did not leave much vegetation on its property. Mr. Daigneau requested the Board try to maintain as many trees as it can.

Phil Swatek advised he is pleased to see the commercial titans speaking to each other; however, the people who are left out are the homeowners. He stated it is moving in the right direction, but they have not been apprised of anything; and that is a shortcoming in this proceeding. He stated there should be something in the planning and zoning process that considers homeowners.

Commissioner Carlson requested comments from the Board. Chairman Scarborough stated he would like to have more time and more discussion before the Board acts. Commissioner Higgs suggested continuing the item until December 15, 1998 to give everyone time to work things out. Commissioner Voltz suggested December 8, 1998.

Motion by Commissioner Carlson, to continue Item 15 until December 8, 1998.

Tom Cavanaugh advised they are willing to build the wall; postponing the item will cause a tremendous hardship; they have not done anything wrong; and if it is a block wall they want, he will give it to them. He stated they have engineering plans, marketing plans, and responsibilities to his bankers; and requested approval subject to working out the buffer with all parties concerned.

Commissioner Higgs advised of talking to Mr. Settle about the chainlink fence; Commissioner Carlson advised of meeting with Messrs. Settle, Haley, and Ackerman, and letters from the Suntree Masters; Chairman Scarborough indicated five days is not that long to wait; and Commissioner O'Brien recommended approval tonight based on presentations by the three parties involved to the County Manager that they have come to a conclusion they can all agree to.

Chairman Scarborough recommended the applicant meet with the other parties in the lobby and come to an agreement while the Board proceeds to the next item.

The item was postponed until later in the meeting.

Item 16. (Z9811501) Daniel S. Platt's request for CUP for alcoholic beverages on-premises consumption in an IU zoning classification on 47 acres located half a mile south of Eau Gallie Boulevard, west of I-95, which was recommended for approval by the P&Z Board for a three-acre tract to be determined prior to the Board of County Commissioners meeting.

Commissioner Voltz inquired if staff received the legal description for the property; with Mr. Enos responding yes, the legal description covers three acres on the southernmost edge of the property.

Commissioner Voltz reviewed the map of the property; and inquired if the property requested for the CUP will allow adult entertainment; with Attorney Tino Gonzalez responding at this time it is not anticipated there will be adult entertainment there; and the anticipated use is a country western show bar similar to what is in Branson, Missouri. Commissioner Voltz inquired if there will be no adult entertainment; with Mr. Gonzalez responding that is not anticipated right now.

Commissioner Higgs inquired if three acres is needed for the CUP; with Mr. Gonzalez responding it will accommodate the building, parking and stormwater retention. He stated the project itself is 190 acres, three of which are requested for the CUP.

Commissioner Voltz inquired if the applicant would sign a binding development plan that there will be no adult entertainment there; with Mr. Gonzalez responding he does not believe they are willing to do that. Commissioner Voltz stated she will not approve it.

Mr. Gonzalez advised Mr. Platt owns 190 acres; the only neighbors are the cattle owned by Mr. Platt; and they do not anticipate there will be adult entertainment. Commissioner Voltz stated but they are not willing to sign a binding development agreement; with Mr. Gonzalez responding that is true because he is not sure what adult entertainment means; the project is going to be an attraction; and they are using the site to put a liquor establishment where people can come and buy and consume on the premises. He stated they may sell it to somebody else which would be a benefit to use as an attraction to other folks who may want to be out there, such as restaurants and hotels. He stated they do not anticipate putting adult entertainment out there; however, they may sell it to somebody who wants to put it out there. Commissioner Voltz stated they could come back and get the binding development removed; with Mr. Gonzalez responding that is true, but he would have to ask Mr. Platt if he would be willing to sign a binding development plan where there would not be any adult entertainment out there; but that would be predicated upon the applicant not being prejudiced at a later time to seek removal of that. He stated he believes adult entertainment cannot be so many feet from a church or school or residence, and there are only cattle out there. Commissioner Voltz stated she does not know what else may go out there; and there are a lot of things that could go out there. Mr. Gonzalez stated the only property that is adjacent to the project property is Brevard County's property which was recently sold by the applicant to Brevard County for wetland mitigation. Commissioner Voltz stated there is a park area next to the lot; with Mr. Gonzalez responding that is true and it is owned by the applicant. Commissioner Voltz stated there could be children playing next to an adult entertainment establishment; there could be other nightclubs out there; so if they will sign a binding development plan, she would be happy to approve it, otherwise she will not.

Charles Julian, developer of the property, stated he is confused why there is conversation about a specific business; it is 200 acres of industrial lands worth $7 to $9 million; and somebody brought up adult entertainment, which would cause significant marketing damage to the remaining properties. Commissioner Voltz stated then there should not be a problem signing a binding development plan. Mr. Julian stated from a developer's perspective, he is not in a position to identify what kind of bar he likes or dislikes; his concern is if it is compatible with the area; he could not put a park with children next to any type of bar; and that is why they elected to put it in the back of the property. He stated he cannot identify in advance what specific business will go in there; he is not concerned with that at the moment; and he is merely concerned with allowing a nightclub in there. He stated he was not aware that Commissioners or the laws they configure determines whether or not someone likes cowboy lounges or disco lounges. Commissioner Voltz stated there is a big difference between those type of bars and adult entertainment; there are two other areas identified for nightclubs; and inquired if they will not serve alcohol in those areas; with Mr. Julian responding they asked for the whole area to have the flexibility to identify for their client; the County requested they identify one specific area; so they picked one, and the other areas would be negated as far as nightclubs are concerned. He stated they cannot put an outlet mall next to an adult nightclub; but at the same time, they cannot make an identification of property uses 23 years in advance. Commissioner Voltz stated she will not vote to approve the conditional use permit unless the applicant signs a binding development plan saying he will not put an adult entertainment establishment out there; and the binding development plan can always come back to request removal if the property is sold and the new buyers decide they want to do that.

Mr. Gonzalez stated the Constitution protects landowners as long as they meet the criteria; he never had occasion to represent an adult entertainment facility and is not familiar with the statutes; but what little he knows about real property, he believes if they meet the criteria, there is nothing the Board can do to prevent an adult entertainment facility from going in there. He stated if he is incorrect, the County Attorney could discuss it.

Assistant County Attorney Eden Bentley advised what is up for review is a conditional use permit for alcoholic beverages; the Board needs to go to the standards of review for a conditional use permit; and it needs to look at noise, compatibility, amount of traffic that may be generated, ingress/egress to the property, off-street parking, utilities, screening, buffering, and those sorts of issues.

Commissioner Higgs inquired where will the ingress/egress to the property be; with Mr. Gonzalez responding to the extreme north of the property at the corner of I-95 and Eau Gallie Boulevard. Discussion and review of the map and location of ingress/egress ensued. Commissioner Higgs stated when the Board has done other conditional use permits for alcoholic beverages, it had a specific parcel, building, complex, etc.; this application is not consistent with how the Board has dealt with conditional use permits in other situations; she has not been at the start of a major complex such as this may be in terms of acreage; so this is different to her than anything she has dealt with. Ms. Bentley advised this is different than most conditional use permits, but the criteria that apply to the CUP process would be the same; it is an industrial area; and the Board may consider whether alcoholic beverages would be compatible with industrial uses. Commissioner Higgs inquired if all the retail uses described in the plan she was given are capable of being built within an IU zoning classification; with Mr. Enos responding those uses are permitted in IU and PIP zoning classifications. Ms. Bentley advised the Board has looked at developed parcels for consideration of CUP's for alcoholic beverages, and this is an undeveloped parcel; the Board has an opportunity to look at the character of the area and has some control of how it develops; so if it feels it is an industrial area, or more agricultural, or whatever its determination of the character is, that may come into play in whether or not it believes the CUP is compatible.

Commissioner Higgs advised she does not have enough information to determine if a CUP for alcoholic beverages is appropriate in that area, because industrial zoning conjures up certain things in her mind; and she has a basic design of the area but needs additional information to make a decision on the CUP. She stated she has always dealt with a specific existing building and had more information when she voted on a CUP for alcoholic beverages; and recommended the item be tabled so the Board can get more specific information.

Mr. Julian inquired what type of information is the Board looking for. He stated they have total control of the area compatibility by industrial and PIP zoning classifications; they can build retail, outlet malls, and essentially everything under industrial use; Mr. Platt has rights as a property owner; so he is confused on what the Board wants. Commissioner Higgs stated she has a very basic design; in the past she dealt with CUP's for an existing building where the character of the area was established and could determine if it was appropriate; so she needs more information about the site design and what the plans are so she can make a reasonable determination whether alcoholic beverages are appropriate in the locations they are talking about. Mr. Julian stated what the building looks like is irrelevant to the subject. Commissioner Voltz stated it is not what the building looks like but the character of the area, what else will go in there, and what is surrounding it, because the Board does not know what will be put in there. Mr. Julian stated as a developer of 200 acres he cannot identify specifically what a particular parcel will be used for ten or twenty years from now. Commissioner Voltz stated then maybe they do not need the CUP right now and may not need it for ten years when it is developed. Mr. Julian stated that is not the case, but he is confused on what specifics the Board is asking of him. Commissioner Higgs stated she is also confused because she does not know what they are trying to do and that is why she has a difficult time making a decision if it is compatible or not and what is appropriate; and she cannot say yes or no because she does not have enough information. Mr. Julian stated the Board is asking him to identify specifically what type of business will go in there in the future; and he has a problem with it because the CUP is an issue relative to the area and compatibility. Commissioner Voltz stated the Board cannot identify compatibility because there is nothing there. Mr. Julian stated the Platts have total control of the surrounding area; and that is the beauty of the project. Commissioner Voltz stated it does not help the Board to approve a CUP. Mr. Julian stated the zoning is already established, so he is confused. Commissioner Voltz suggested Commissioners let staff know what they want, and Mr. Julian get with staff so they can give him more specifics.

Commissioner Higgs stated in order to approve a CUP there are certain criteria; all she has is a drawing; if they could give her some answers to questions, she can look at the criteria and say yes or no, and will be able to vote one way or another; but without that she could vote no tonight and say they did not give her enough information. She stated she will support a motion to continue the item and allow the applicant the opportunity to nail it down and give the Board enough information to answer questions that are part of the CUP process.

Commissioner Carlson advised the consensus of the Board seems to be that it is not comfortable giving a CUP on everything that is on the drawing. Commissioner Voltz stated it is only for one parcel, but she does not know what else will go out there.

Motion by Commissioner Voltz, seconded by Commissioner Higgs, to continue Item 16 until January 28, 1999.

Mr. Gonzalez advised he is aware of people who have had lingerie bull riding contests at The County Line; sometimes they have exotic dancers for certain events; and his confusion about adult entertainment is whether or not those activities are considered adult entertainment, or is it a strip joint. Commissioner Voltz advised there are guidelines of what adult entertainment is.

Chairman Scarborough advised Mr. Gonzalez to meet with the Commissioner of the District and define what is considered adult entertainment; what may be risqu? to one person may not be to another person; but there are certain things everybody would agree is risqu?. He stated in addition to defining the concept of what is going to occur, it may be beneficial to go to that particular issue. He stated the Board has certain legal requirements; but there is also the desire to make things work for the whole community; the Board appreciates Mr. Platt's property rights, but they all live together in the same community.

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

The meeting recessed at 7:56 p.m., and reconvened at 8:08 p.m.

Item 15. (continued)

John Criner, resident of Renaissance Point and member of the Suntree Architectual Control Committee, advised in their discussions, a masonry wall, six feet high, from the wetland across the whole north end of the property was agreed upon by the Tuscany Developer coupled with planting that will be 12 feet high minimum, every 25 feet. He stated they have a commitment from Mr. Ackerman that he will landscape the wall on the Renaissance Point side. Chairman Scarborough stated Mr. Ackerman's commitment is between the residents and him and has nothing to do with the binding development plan; and if he does not perform, it does not affect the development. Commissioner Carlson stated Mr. Ackerman does not represent Suntree Partners; with Mr. Criner responding and neither does he, but he believes Mr. Haley will accept the decision.

Mr. Ackerman advised he agreed with what Mr. Criner said; they came to a conclusion that a masonry wall would be constructed along the property line; and he does not know what type of landscaping will or will not live between the masonry wall and the end of the cul-de-sac, but they will do everything they can on both sides of the cul-de-sac. He stated Mr. Cavanaugh has agreed to continue the wrought iron aluminum fence with masonry posts and landscaping buffer from the end of the masonry wall at least around to the property contiguous to the second phase of Renaissance Point and all the way down the wetland area to the east end of his property so anything abutting Suntree would have the wrought iron or masonry wall situation.

Commissioner Carlson inquired about the lighting issue; with Mr. Ackerman responding Mr. Cavanaugh has assured him he will do a landscaping buffer to take care of the lighting situation from other clients; and he assured Mr. Cavanaugh he would be cognizant of that when he builds homes in Phase 2 and would do some planting as well. Commissioner Carlson inquired if the residents are satisfied with that; with Mr. Criner responding they are satisfied, but have not discussed lighting of the parking lot on the other side of the fence and the lighting fixtures that will be selected to shield the lights.

Mr. Ackerman advised he gave Mr. Cavanaugh financial assurance of participation at least from Tiffany Homes; and if there was something granted to Mr. Haley to bring that cul-de-sac down he was not aware of it as the purchaser of the property.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to approve Item 15, with a binding development plan providing for a masonry wall, stuccoed on both sides, six feet tall, for approximately 275 feet from the northwest property line abutting the cul-de-sac running east to the start of the wetlands; landscaping provided by the owners on each side of the wall; the developer committing to a wrought iron aluminum fence running the balance of the north property line heading south for approximately 75 feet then westerly for approximately 200 feet and stopping at the far northwest corner, and continuing on from the edge of the wetlands running east to the northeast corner; developer providing 12-foot tall oak trees 25 feet apart on his side of the wall and plant a hedge on the wrought iron portion of the wall running around or in between the two retention ponds at the northwest corner of the site; and developer using his best efforts to place the lighting so that it does not illuminate the other side of the wall, minimize any and all glare associated with it, and use shields if necessary.

Chairman Scarborough advised until the binding development plan is recorded, they do not have completed action. Mr. Enos advised in this case the binding development plan is the preliminary development plan that is required with a PUD.

Mr. Cavanaugh reiterated his commitment to the masonry wall, wrought iron fencing, landscaping and lighting. Mr. Criner inquired if an electrical engineer will lay out the lighting; with Mr. Cavanaugh responding they are in the process of laying out the lighting, but a lot of it depends on the power company and ultimate placement from a security standpoint.

Commissioner Higgs inquired if Mr. Cavanaugh is the trustee for Charles R. Stack, the name of his company, and if he developed in Brevard County before; with Mr. Cavanaugh responding Mr. Stack is the trustee for the legal ownership entity; and he is the designated applicant agent for Mr. Stack; the company is P.A.C. Land Development Corporation of which he is President and which is the general partner of the limited partnership that will take ownership title to the property; and he has not developed in Brevard County, but he has developed all over the state.

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

PUBLIC HEARING, RE: ORDINANCE AMENDING CHAPTER 62, CREATING SECTION 62-2134, FLEXIBILITY IN DESIGN OF NEW SUBDIVISION LOTS

Chairman Scarborough called for the public hearing to consider an ordinance amending Chapter 62 to provide flexibility in design of new subdivision lots.

Commissioner Voltz inquired what is the purpose of the ordinance; with Zoning Official Rick Enos responding to provide flexibility in subdivision design and accommodate different house plans, unusually-shaped properties, and designing problem sites. Commissioner Voltz inquired if the net effect will be the same; with Mr. Enos responding yes, it does not allow more lots.

There being no further comments or objections heard, motion was made by Commissioner Voltz, seconded by Commissioner O'Brien, to adopt an Ordinance amending Chapter 62, "Land Development Regulations," Code of Ordinances of Brevard County, Florida; creating Section 62-2134 providing for flexibility in the design of new subdivision lots; providing for conflicting provisions; providing for severability; providing for area encompassed; providing an effective date; and providing for inclusion in the Brevard County Code. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING CHAPTER 62, ARTICLE VI, DIVISION 5, SUBDIVISION 3, SECTION 1936, LAND ALTERATIONS CONDITIONAL USE PERMIT

Chairman Scarborough called for the public hearing to consider an ordinance amending Chapter 62 regarding land alterations conditional use permit.

Zoning Official Rick Enos advised the Board wanted to know what roads were arterial and collector roads, and staff has provided the map and a list of the roads.

Commissioner Higgs advised on the first page of the ordinance it says minimum size is five and maximum is 50, but in the body it says 30. Mr. Enos advised the section applies to all land alterations including those in industrial and commercial areas, whereas other provisions deal with specific residential or large agricultural rural lots.

Commissioner Carlson inquired if the Board should consider life span; with Mr. Enos responding some of the conditional use permits have maximum life spans, but this one does not; and that is something the Board can consider. Commissioner Higgs stated the Board could put a time frame on it, but how fast they take dirt out depends on many factors. Commissioner Carlson indicated her concern that as the area develops it may become a nuisance, and if there is a time frame, the Board could tell people when the operation will end. Commissioner O'Brien disagreed with putting a life span; and stated people will know it is there when they buy a house or condominium. He disagreed with restricting people's property rights; and noted it ends up being a lake with development around it later on. Mr. Enos suggested a general provision that the Board has a right to limit it on a case-by-case basis. Commissioner Higgs stated that will give the Board flexibility.

Motion by Commissioner Higgs, seconded by Commissioner Voltz, to adopt Ordinance amending Chapter 62, "Land Development Regulations," Code of Ordinances of Brevard County, Florida; amending Article VI, Division 5, Subdivision 3, specifically amending Section 1936, Land Alterations," to alter criteria and site plan requirements, amending Article VI, Division 5, Subdivision 3, specifically amending Section 62-1331(3), General Use (GU), to provide a maximum acreage for land alterations of 30 acres, specifically amending Section 62-1332(3), productive agriculture (PA), to provide a maximum acreage for land alterations of 30 acres, specifically amending Section 62-1333(3), agriculture (AGR) to provide a maximum acreage for land alterations of 30 acres, specifically amending Section 62-1334(3), agriculture residential (AU) to provide a maximum acreage for land alterations of 30 acres, specifically amending Section 62-1334.5(3), agriculture rural residential (ARR), to provide a maximum acreage for land alterations of 30 acres, specifically amending Section 62-1572(3), government managed lands (GML), to provide a maximum acreage for land alterations of 30 acres, specifically amending Section 62-1335(3), rural estate use (REU), to add land alterations to the list of available conditional uses, providing for conflicting provisions; providing for severability; providing for area encompassed; providing an effective date; and providing for inclusion in the Code of Ordinances of Brevard County, Florida, as amended to provide the Board with the right to limit the operation. Motion carried and ordered unanimously.

Upon motion and vote, the meeting adjourned at 8:29 p.m.

ATTEST:
TRUMAN SCARBOROUGH, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

SANDY CRAWFORD, CLERK
(S E A L)