The Board of County Commissioners of Brevard County, Florida, met in regular zoning session on March 28, 1996, at 5:01 p.m. in the Government Center Commission Room, 2725 St. Johns Street, Melbourne, Florida. Present were: Chairman Mark Cook, Commissioners Truman Scarborough, Randy O?Brien, Nancy Higgs, and Scott Ellis, County Manager Tom Jenkins, and County Attorney Scott Knox.

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

DISCUSSION, RE: LAWSUIT OF FARM AND GROVE CORPORATION OR REALTY

County Attorney Scott Knox advised of a lawsuit filed by Mr. Tietig on behalf of Farm and Grove Corporation or Realty involving a claim for declaratory judgment to have the County?s MSBU Ordinance declared unconstitutional, as well as a claim for civil rights violation in a taking. He stated since it involves a civil rights claim, the Board could refer it to FACT, but he would be hesitant to recommend that and would prefer to represent it in-house because the claims are not well-founded. He requested the Board?s preference on this issue.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to authorize the County Attorney?s Office to handle the lawsuit of Farm and Grove Corporation or Realty filed by Mr. Tietig. Motion carried and ordered unanimously.

DISCUSSION, RE: LENGTH OF MEETINGS

Commissioner Scarborough advised the Board is well regarded because of the degree of diligence it spends on issues; people appreciate the fact it puts time in and listens to all items; but when the meeting goes on for 12 hours, it is difficult for people to participate not knowing exactly when the item will come up. He stated if the Board met one additional meeting a month, it would split 12 hours into two six-hour sessions and make it easier for the public to participate, and staff and the Commissioners will be more alert.

Motion by Commissioner Scarborough, seconded by Commissioner Ellis, to direct the County Manager to explore the possibility of an additional regular meeting a month, and return to the Board with a report.

The Board discussed moving zoning meetings to Tuesdays, meeting in the afternoon, definite time to end meetings, and removing items from the Agenda.

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

RESOLUTION, RE: F.I.N.D. GRANT FOR DISTRICT 2 DREDGING PROJECTS

Chairman Cook advised the resolution for assistance under Florida Inland Navigation District (F.I.N.D.) Waterway Assistance Program for canal dredging in District 2 was on the Agenda as Item III.A.31. on March 26, 1996; it did not include the description of the project and was stamped ?draft?, so he did not sign it; and now he needs authorization to sign the Resolution.

Motion by Commissioner Scarborough, seconded by Commissioner O?Brien, to authorize the Chairman to sign revised Resolution No. 96-71, authorizing grant application to F.I.N.D. for canal dredging in District 2. Motion carried and ordered unanimously.

AMENDMENT, RE: ENVIRONMENTAL HEALTH FEE SCHEDULE

Chairman Cook advised the Board approved modifying the cost of soil replacement inspections at $30 regarding septic tanks; and it requires an amendment to the fee schedule.

Motion by Commissioner Scarborough, seconded by Commissioner O?Brien, to authorize execution of the Environmental Health Fee Schedule Amendment, establishing the soil excavation inspection fee at $30.00 as approved by the Board on October 24, 1995. Motion carried and ordered unanimously.

APPOINTMENT, RE: COMMUNITY BASE ORGANIZATION FUNDING ADVISORY BOARD

Motion by Commissioner Scarborough, seconded by Commissioner O?Brien, to appoint Tony Boyles, 2890 St. Marks Drive, Titusville, Florida 32780, to the Community Based Organization Funding Advisory Board, replacing Elizabeth Bradley with term expiring December 31, 1996. Motion carried and ordered unanimously.

APPROVAL, RE: REDUCTION OF RETAINAGE FOR WICKHAM ROAD WIDENING PROJECT

Pam Jones, 4655 Whipple Hollow Road, Melbourne, Vice President of MacAsphalt, Inc. advised she is here to answer any questions the Board may have.

Chairman Cook advised staff was instructed to get with the contractor to work out a resolution on the retainage, liquidated damages, and things relating to delay of the project; and inquired if anyone contacted her; with Ms. Jones responding she met with Mr. Minneboo and discussed the contract and $14,000 liquidated damages; and she agreed to do resurfacing within a two-mile radius of the Melbourne Asphalt plant and compensate the County for the $14,000. Chairman Cook advised he was not aware an agreement had been reached.

Ms. Jones stated there is another issue that has not been resolved on the Hardrive?s Contract and the liquidated damages associated with that; and those affect MacAsphalt indirectly through the contract it has with Hardrives. Commissioner Ellis inquired if that is the reason for the remaining retainage; with Ms. Jones responding no.

Commissioner Higgs inquired what is left on the punch list to be completed; with Ms. Jones responding there are 60 to 70 trees that have died and have to be replaced; their subcontractor is having difficulty getting the oak trees; as of today, they located some oak trees; and within two weeks they will replace the dead trees. Commissioner Higgs inquired about Pond A; with Ms. Jones responding there is a problem with an outfall that has riprap in it that failed during the hurricane; they have completed that per the construction documents; they feel it is an engineering design problem and not a MacAsphalt problem, but it has not been resolved yet; and that is why the County is holding $293,000 until that issue is resolved. Commissioner Higgs inquired if the trees and pond are the only issues remaining; with Ms. Jones responding yes.

Chairman Cook inquired what would be the dollar amount on the trees; with Ms. Jones responding no more than $50,000. County Manager Tom Jenkins advised the two items combined would be approximately $200,000. Chairman Cook inquired where the asphalt plant is located; with Ms. Jones responding on U.S. 1. She stated Mr. Minneboo indicated there were streets in the Suntree area that needed resurfacing; and she told him she would not have a problem with that. She stated the reason for the limitation is the hauling of asphalt is the biggest out of pocket cost; so if they can limit it to two miles, that would limit what she has to pay a trucker to haul it. Chairman Cook stated they also talked about paving at Wickham Park; with Commissioner Ellis responding the problem is having to dig a retention pond if they paved the roads. Chairman Cook stated he would have liked to have seen it in writing; with Ms. Jones responding Mr. Minneboo may not have felt there was enough of an agreement reached, and he has been out of town. Chairman Cook stated he is not blaming staff.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to approve reduction of $800,000 from the retainage for Wickham Road Widening Project; authorize payment of same to the contractor MacAsphalt; and authorize execution of an Amendment to Agreement with MacAsphalt, Inc., providing for retainage for items remaining until the punch list items are completed and all releases of liens from subcontractors and suppliers are received from MacAsphalt.

Discussion ensued on punch list items remaining, paving within two-mile radius of the asphalt plant, reduction of retainage, and liquidated damages.

Chairman Cook stated he would feel more comfortable if the Board had a signed agreement and knew specifically those two outstanding items would be done; and inquired if there is anything binding tonight; with County Attorney Scott Knox responding if the Board is willing to do this, he will prepare an amendment to the Contract; he has a draft amendment, but did not distribute it because he did not know what the Board was going to do; and it has a punch list attached to it which incorporates the remaining items. County Manager Tom Jenkins advised it is an old punch list and he had Public Works prepare a new punch list today with just those two items, the trees and pond.

Chairman Cook stated he would like to talk to Mr. Minneboo and get assurance from staff that this is what is left and will be done; and he would prefer to have an agreement in writing that it will happen before moving forward. Commissioner Scarborough recommended Mr. Knox distribute the draft amendment and punch list for Board consideration and approval. Commissioner Higgs recommended the County Attorney read the amendment. Mr. Knox read the pertinent paragraphs. Commissioner Higgs stated all the Board is doing is releasing part of the retainage.

Discussion ensued on the punch list, amount of retainage to be released and retained, and liquidated damage claims.

Chairman Cook stated he cannot support the motion without an agreement. Commissioner Scarborough recommended the motion acknowledge the outstanding items.

Commissioner Scarborough withdrew the second to the motion, and Commissioner Higgs withdrew the motion. Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to authorize execution of a contract amendment with MacAsphalt for Wickham Road Widening Project, providing for retainage for items remaining and until the punch list items are completed, and all releases of liens from subcontractors and suppliers are received from MacAsphalt; and recognize there are other issues that are unresolved.

Commissioner O?Brien stated there is over $293,000 which can be used to deal with liquidated damages; that will not be released until everything is done, including resurfacing streets; so they can meet with staff and work things out, but the Board should give them part of the retainage tonight. He inquired what do they do if the trees die again after being replaced; with Ms. Jones responding they have a maintenance agreement with the County for one year; and they will walk the job again one year from now after final acceptance. Commissioner O?Brien stated it is frightening to see that many trees not make it especially when it rained every day; with Ms. Jones responding it is less than 10% which is not unusual. Chairman Cook inquired who is maintaining it now; with Mr. Jenkins responding the County. Chairman Cook stated it needs to be mowed.

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

APPROVAL, RE: LEGAL SERVICES FOR PERSONNEL COUNCIL

Motion by Commissioner Scarborough, seconded by Commissioner O?Brien, to authorize Human Resources Director to work with Andrew Hamet, Douglas Marks, and Vincent Torpy to provide legal services to the Personnel Council on a temporary basis; and authorize staff to issue an RFP for legal counsel for the Personnel Council on a more permanent basis. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE ESTABLISHING AGRICULTURAL RURAL RESIDENTIAL ZONING CLASSIFICATION

Chairman Cook called for the public hearing to consider an ordinance establishing an Agricultural Rural Residential zoning classification (ARR).

Thomas Perkinson, 6613 Dean Avenue, Cocoa, advised the change is a good idea, but in agriculture they allow animals; and inquired if pigs will be allowed.

Zoning Official Rick Enos advised in AU a hog farm is not permitted with more than four hogs except through the conditional use permit process, but it does permit up to four pigs.

Assistant Growth Management Director Peggy Busacca advised in the new classification hog farms are also permitted as a conditional use permit with a minimum of two and a half acres. Mr. Perkinson inquired if they can have animals if they are pets and a limited amount such as one pig; with Ms. Busacca responding yes.

Commissioner Scarborough inquired if it has to be a pet; with Ms. Busacca responding no, farm animals are permitted in AU.

There being no further comments or objections heard, motion was made by Commissioner Scarborough, seconded by Commissioner Ellis, to adopt Ordinance establishing Section 62-1334.5, Article VI, Division 4, Code of Brevard County, Florida, specifically creating the Agricultural Residential Rural Zoning Classification; specifically establishing criteria for utilization of Agricultural Residential Rural Zoning Classification; establishing permitted uses, permitted uses with conditions, accessory uses, conditional uses, minimum lot size, setbacks, minimum floor area, maximum floor area of additions to principle structures, and maximum floor area of accessory structures; providing for conflicting provisions; providing for severability; providing for area encompassed; and providing for effective date. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING ZONING CODE FOR PUBLIC PARKS, NON-CONFORMING AGRICULTURAL USES, AND SETBACKS IN SINGLE-FAMILY CLASSIFICATIONS

Chairman Cook called for the public hearing to consider an ordinance amending the Zoning Code relating to public parks, non-conforming agricultural uses, and setbacks in single-family classifications.

Assistant Growth Management Director Peggy Busacca advised the ordinance will permit public parks in all zoning classifications except EA; the permitted use is parks and public recreational facilities; it changes non-conforming agricultural use to a conditional use permit; and it reduces the setbacks for screened porches from 20 to 10 feet in the RU-1-13, RU-1-11, RU-1-9 and RU-1-7. Commissioner Higgs advised she does not support the reduction of the front setbacks to 20 feet from 25 feet, and will not vote for the ordinance.

There being no further comments or objections heard, motion was made by Commissioner Scarborough, seconded by Commissioner Cook, to adopt Ordinance amending Chapter 62, Article VI, Code of Brevard County, Florida; specifically amending Section 62-1182 relating to nonconforming agricultural uses; specifically amending the permitted uses to include recreational uses and amending the conditional uses to include change of a nonconforming agricultural use within the General Use (GU), Productive Agriculture (PA), Agricultural (AGR), Agricultural Residential (AU), Rural Estate Use (REU), Rural Residential (RR-1), Suburban Estate Residential Use (SEU), Suburban Residential (SR), Estate Use Residential (EU, EU-1, EU-2), Single-family Residential (RU-1-13, RU-1-11, RU-1-9, RU-1-7), Single-attached Residential (RA-2-4, RA-2-6, RA-2-8, RA-2-10), Residential Professional (RP), Low-density Multiple-family Residential (RU-2-4, RU-2-6, RU-2-8), Medium-density Multiple-family Residential (RU-2-10, RU-2-12, RU-2-15), High-density Multiple-family Residential (RU-2-30), Rural Residential Mobile Home (RRMH-1, RRMH-2.5, RRMH-5), Single-family Mobile Home (TR-1, TR-1-A, TR-2), Mobile Home Park (TR-3), Single-family Mobile Home Cooperative (TRC-1), Recreational Vehicle Park (RVP), Planned Unit Development (PUD), Restricted Neighborhood Retail Commercial (BU-1-A), General Retail Commercial (BU-1), Retail, Warehousing and Wholesale Commercial (BU-2), General Tourist Commercial (TU-1), Transient Tourist Commercial (TU-2), Planned Business Park (PBP), Planned Industrial Park (PIP), Light Industrial (IU), Heavy Industrial (IU-1) zoning classifications, specifically amending the setbacks within the single family residential (RU-1-13, RU-1-11, RU-1-9, RU-1-7) zoning classifications; creating Section 62-1917.5, change of nonconforming agricultural use, establishing conditions for change of nonconforming agricultural uses; providing for conflicting provisions; providing for severability; providing for area encompassed; and providing an effective date. Motion carried and ordered; Commissioner Higgs voted nay.

PUBLIC HEARING, RE: ZONING RECOMMENDATION OF JANUARY 2, 1996 ITEM 26, STANLEY A. DOWIAT

Chairman Cook called for the public hearing to consider the Planning and Zoning (P&Z) Board?s recommendation of January 2, 1996, on Item 26 as follows:

Item 26. Stanley A. Dowiat?s request for CUP for alcoholic beverages on-premise consumption in IU zoning classification on one acre located north of Stan Drive, and north of Ellis Road, which was approved by the P&Z Board.

Attorney Mike Riemenschneider with the law firm O?Brien, Riemenschneider, and Kancilia, 516 N. Harbor City Boulevard, Melbourne, advised he presented testimony of an appraiser and certified land planner the last time, introduced a number of exhibits, and made a sufficient showing; the property owners in and around the area spoke; there was some discussion back and forth with the Board; and specifically Commissioner Scarborough stated he wanted to give the property owners the opportunity to get expert testimony and present that here tonight. He stated his clients made their showing and are here to listen to the other side of it; they are requesting the conditional use permit so they can sell alcohol in a restaurant setting. He stated there were questions whether they would agree to specific conditions; and one condition they will agree to at this time is to tie the sale of on-premise alcohol to the restaurant business so that if it stops being a restaurant the condition would be violated. He stated that might answer some of the inquiries from the last hearing.

Commissioner O?Brien stated these applications come through when the sale of food is insufficient compared to the quantity of the sale of alcohol, because they can get an license from the State for a restaurant if they have sufficient capacity seating and food sales is 51% of the total sales. Mr. Riemenschneider advised the conditional use permit (CUP) request is different from a license to have a restaurant and have 51% restaurant sales. Commissioner O?Brien inquired if they anticipate less than 51% sale of food; with Mr. Riemenschneider responding no, it is going to be a restaurant, but they purchased a 4 COP license already. Commissioner O?Brien stated that allows the full range of alcohol and not just beer and wine; with Mr. Riemenschneider responding that is correct.

Commissioner Ellis inquired about the difference between the two licenses; with Mr. Riemenschneider responding a restaurant is a permitted use in IU zoning classification; and if it was not functioning as a restaurant, the County can take enforcement action. He stated he did not find a definition in the County Code specifically describing a restaurant, but that is what they contemplate the business to be.

Glen Warner, Absolute Packaging, 320 Stan Drive located in Dow Industrial Park, presented the Board with a document making several points and listing 85 restaurants available in the area and some of which sell alcoholic beverages. He stated if it goes beyond beer and wine, there is a likelihood of different hours from what the businesses operate now; the park is not well lighted, is off the beaten path, and has no normal police patrol; so alcohol is a concern to them. He stated the fact that it is so remote makes him question why they would want to put a restaurant there where it cannot be seen and does not have a traffic pattern of more than six cars a day going pass it. He stated he has to instruct his customers who come into the park how to get to his business; it is unusual to see it as a good site for a restaurant; and there are many better sites in the County for that type of operation.

Attorney Gary Frese, 930 S. Harbor City Boulevard, Suite 505, Melbourne, representing Absolute Packaging, Inc., advised an SRX license requires food sales in the establishment equal to at least 51% of the gross revenues; the 4 COP license does not require a restaurant and could end up just selling alcoholic beverages; the sale of alcohol in an industrial park is not compatible; and while a restaurant would be welcomed, they do not know why the applicants chose the location since it would be well secluded. He stated they do not want it to turn into a night activity bar due to poor lighting, lack of security, and incompatible operating hours; and recommended the Board tie it to 51% sales of food to assure the neighbors it is not going to turn into a bar if the restaurant does not work. Mr. Frese advised the fact that they purchased a 4 COP license which is ten times more expensive than an SRX license is questionable in terms of business sense unless there are other plans; it is legal and legitimate to condition it on the restaurant activity being the primary activity; since it is Subs and Pasta, it could be restricted to beer and wine only; and that is an easy license to get and cheaper than the one they purchased and more in keeping with an industrial park. He stated the compatibility issue is a serious question; and although they put forth evidence of value, traffic, etc., the hour situation could be a problem in a secluded area unless there is regular police patrol, since most of the places will be closed while this place could operate with a liquor license.

Chairman Cook inquired if a 4 COP license does not require the food percentage and the SRX license does; with Mr. Frese responding that is correct. County Attorney Scott Knox advised 51% of gross revenues which include food and non-alcoholic beverage sales is the standard for the restaurant portion.

Commissioner Ellis inquired if the Board can tie the CUP to that; with Mr. Knox responding yes, it is a CUP that allows the Board to impose conditions that relate to the request. Commissioner Ellis inquired about enforcement; with Mr. Knox responding revocation. Commissioner Elis inquired if the County would have to ask the State to monitor it; with Mr. Knox responding it could do that or impose a condition to allow access to the books to determine how much they sold in terms of food and non-alcoholic beverages. Mr. Frese stated another possibility would be for the applicants not to use their 4 COP license and require them to get an SRX license so the State would monitor it and the County would not have to. Mr. Knox advised what they are applying for lends itself to an SRX license. Commissioner Ellis inquired if the Board could grant the CUP conditioned upon the liquor license being an SRX license; with Mr. Knox responding it can do that to limit it to the restaurant facility.

Lisa Luthy, 485 Stan Drive, Melbourne, advised she operates Tropical Siding and Soffit; she and all the other property owners who purchased property in the industrial park did so because of the light industrial zoning; they are aware it allows restaurants; and none of them have a problem with a restaurant, but they have a problem trying to figure out why someone would want to put a restaurant there. She questioned the expertise of the expert witnesses presented by the applicants who tried to compare their space with property on John Rodes Boulevard which has thousands of people passing by each day; and indicated no one passes the subject property in a day unless they are lost. Ms. Luthy advised they are all compatible businesses; and to throw in liquor with a siding and soffit company, electricians, packaging, and diesel truck repair is not a good combination. She requested the Board take those who tried to adhere to the rules into consideration and not allow alcohol which does not have a place in the industrial park.

Commissioner Higgs inquired how long Ms. Luthy has owned the property on Stan Drive, and if the location allows her to observe traffic going by; with Ms. Luthy responding five or six years, and she has the first building on the right; she sits at a desk that faces the window, so she sees everything that goes by all day long; and anyone who would come in and go to the restaurant would go by her building. Commissioner Higgs inquired if her testimony of the traffic and people not coming to look for a restaurant is based on her sitting there frequently during the day and in a position where she can see the traffic; with Ms. Luthy responding yes, and explained a map depicting the buildings and road loop. Commissioner Higgs inquired if traffic observed by Ms. Luthy is traffic going to businesses that are located in the park and not random traffic looking for a restaurant; with Ms. Luthy responding it is not random traffic.

Edward Gensen, 450 Stan Drive, Melbourne, advised he is a real estate broker, industrial park developer, long-time industrial investor, owns a 15,000 square-foot warehouse on Stan Drive, drinks, likes to go out to dinner and have a few drinks, likes to dance and have a good time, and has nothing against any bar or restaurant. He stated they were told there was a feasibility study done on the location; they should not pay those people who did the study because it is the worst possible location for a restaurant/bar; and explained a map of the area. He stated the lot cannot be seen from Ellis Road or Stan Drive; the lot is almost 50,000 square feet, bigger than most McDonald?s land area; and they would have to assume getting 200 to 300 customers a day to make a profit. Mr. Gensen advised 30 to 40% of the traffic in the industrial park is truck traffic; people in the park have one or two customers a day coming to their businesses; they may have two or three deliveries; that is what light industrial is; and the whole area has light traffic and day time traffic. He stated a bar/restaurant would bring people driving in to drink and leave driving after they drink; the deputies drive through there, and if someone is on the street, they are stopped and questioned; the area closes down at night; and this request would bring drinking and night time traffic into the area which is completely opposite of what goes on there now. He stated a bar/restaurant would expose them to serious security problems; and it will make their properties less attractive and less valuable. Mr. Gensen stated the applicants do not own the lot, but probably have an option to buy it; light industrial zoning is to provide areas in which principal uses of the land is manufacturing, assembling, fabrication, and warehousing; those do not depend primarily on frequent personal visits of customers; and requested the Board turn down the request because the area is not suited for a lot of traffic; it will bring night drinking and dining and cause serious security problems affecting their safety; and it will impose an excessive burden and negatively impact surrounding and adjacent uses because it is inconsistent with the neighborhood. He stated the Board should protect the integrity and character of the neighborhood; zoning regulations control buildings and promote public safety and welfare; and denial of the CUP will accomplish that purpose.

Attorney Riemenschneider advised he heard a lot about the wisdom of putting a restaurant at the particular site; that is not before the Board tonight; and they can build a restaurant there irrespective of whether there is alcohol or not at the facility. He stated the Board gave the property owners the opportunity to get expert testimony to rebut the comments made by the experts they put before the Board who gave opinions that the CUP requirements were met; and County staff, as well as the P&Z Board, found the proposal was consistent with the Future Land Use designation and would maintain acceptable levels of services. He stated the residents have raised emotional issues they believe to be the case concerning traffic, security, etc.; but he has not heard anyone who can back up those statements with studies, facts, or competent testimony. Mr. Riemenschneider advised the use is for a restaurant; if it is not operated as a restaurant, the County Code requirements would find it to be out of conformity with the Code; therefore, there does not have to be a requirement whether it has to be a restaurant or not because it has to be a restaurant. He stated there were distinctions made between selling beer and wine and selling alcohol; they purchased a 4 COP license to sell alcohol; and he knows of no instance where a business was prevented from selling alcohol as opposed to beer and wine, and does not see the distinction between selling beer and wine and selling alcohol. He indicated the County should show evidence why there should be a distinction. Mr. Riemenschneider advised they want to sell alcohol as related to a restaurant; the opponents brought no one before the Board to testify, who has competent evidence, to rebut the points that were raised; Mr. Frese?s comments were made as an attorney on behalf of his client and not as an expert; and he knows experts have to be presented in this type of proceedings, yet that was not done. He stated they have met the requirements of the County; staff believes they met the requirements; the P&Z Board recommended the CUP be approved; therefore, they request the Board grant the CUP.

Commissioner Scarborough inquired if Mr. Riemenschneider is contending the Board can only take testimony from an expert and not from someone in the area for six years watching traffic; with Mr. Riemenschneider responding no, the Board can take into consideration traffic, but it has to take into consideration the difference in traffic between having a restaurant which is a permitted use and having a restaurant with alcohol sales, and what impact that has on the surrounding roads. Commissioner Scarborough advised of a memo from Rick Enos dated March 15, 1996; inquired if Mr. Riemenschneider received a copy of it; and stated it is unfair to proceed until he has the opportunity to review it because he should have been provided a copy. He recommended Mr. Enos summarize his comments contained in the memo.

Zoning Official Rick Enos advised at the last meeting, the Board asked staff to look at the property particularly from the standpoint of a bar versus restaurant issue; a staff member, Tom Myers, went out to the site on two occasions, the last being at night at 9:25 p.m. on March 6, 1996; and he found there were no businesses open in the vicinity. He stated the memo also summarizes Section 62-1901(c) which is general standards of review and states, ?The proposed use will be reasonably compatible with the character of the surrounding property and its function, hours of operation, type and amount, traffic to be generated, building size, setback, and other relevant factors peculiar to the proposed conditional use and the surrounding property.? He stated the memo concludes by stating that it is staff?s opinion that a bar which would remain open until 2:00 a.m. would not be in character with the function or hours of operation of the existing land uses, whereas a restaurant that served meals and also served alcohol may attenuate some of those effects if the alcohol was consumed with the meals, plus the hours of operation of a restaurant would be more compatible with the character of the area.

Mr. Riemenschneider inquired if staff changed its position regarding the rezoning review worksheet; with Mr. Enos responding staff has not changed its position. Mr. Riemenschneider inquired if a bar is a permitted use under the current zoning; with Mr. Enos responding a bar is a conditional use in the classification, and sale of alcohol under any situation is a conditional use in the classification.

Mr. Riemenschneider stated he takes issue to that, and thinks they have to have a permitted use and special exception for a conditional use permit to add alcohol. He stated this catches him by surprise, but it seems that alcohol sales, in conjunction with a restaurant, has been found to be appropriate and would not be ruled out by the memo. Mr. Enos advised staff feels the alcohol, in conjunction with the restaurant, would tend not to be incompatible with the character of the area as opposed to a bar which staff feels would be incompatible with the character of the area. Mr. Riemenschneider advised he has stated repeatedly that it is going to be a restaurant and not a bar.

Commissioner Ellis inquired if it is possible to have a provision placed on the CUP such as no alcohol to be served after 9:00 p.m.; with Mr. Enos responding the Board can put any conditions on a CUP which addresses any concerns that approval of the CUP would have on the neighborhood; so if the Board has a reason to put a condition like that on the permit, and it is related to protecting the character of the area, then it can do that. Chairman Cook inquired if the County Attorney concurs; with Mr. Knox responding yes. Mr. Riemenschneider inquired if conditions can be placed on the CUP that are not related to the adverse impact the use will have; with Mr. Knox responding no, the conditions must relate to the impact of the facility or the proposed use.

Commissioner Ellis inquired if the closing time relates to adverse effects due to all existing businesses being closed for the day; with Mr. Knox responding in his opinion it would relate to the closing time conditions described tonight. Mr. Riemenschneider advised he understands most of the businesses are closed and abandoned by 6:00 p.m., but staff found that there would basically be no problem until 9:00 p.m.; and inquired what would be the difference remaining open until midnight or 2:00 a.m., and has the Board received testimony that shows there would be adverse impact by staying open the additional three to five hours.

Chairman Cook inquired if there is heavy machinery in the vicinity; with Mr. Enos responding one business is a diesel repair business and storage area for heavy equipment; others seem to be warehousing and light manufacturing; and he is not aware of any other heavy equipment except on Lot 15. Chairman Cook inquired why the applicants chose to go for a 4 COP license instead of an SRX license; with Mr. Riemenschneider responding they want to have a full beverage restaurant and it is better for sales than limiting it to beer and wine. Chairman Cook inquired if they could have the full range of beverages under the SRX license if the food is 51% of the revenues; with Mr. Riemenschneider responding he does not think so. He stated he has been to restaurants after 9:00 p.m.; there are businesses that close after that time; it is his clients? belief they can make the business go as a restaurant and remain open until midnight or 2:00 a.m.; and he does not see how limiting it to 9:00 p.m. is something that would be appropriate since there would be no difference between closing at 9:00 p.m. and closing at 2:00 a.m. He advised the County Ordinances requiring places that sell alcoholic beverages to close at 2:00 a.m. Chairman Cook inquired if they could have the full range of alcohol under the SRX license if 51% of the revenue is from food; with Mr. Riemenschneider responding if the Board is hung up on the 51% definition, then it could put a condition that although they have a 4 COP license, there must be 51% sale of food as opposed to having them abandon the license they already paid for and get another license.

Mr. Riemenschneider stated the fear that it is going to turn into a bar can be rectified under the County Ordinance now; and the issue of whether it is a restaurant or bar is something staff could check on from time to time, if necessary, and impose the 51% requirement.

Commissioner Ellis inquired if the 9:00 p.m. closing time would resolve the issue of operating as a restaurant; with Mr. Riemenschneider responding no. Commissioner Higgs advised the applicant?s attorney made a statement that staff?s letter indicated there may be no problem after certain hours; the testimony she read in the letter dated March 15 simply indicated a staff member was out there at 9:25 p.m.; and that was all that was stated in that document.

Chairman Cook advised it seems if there is going to be any approval, serving of alcohol must be related to the serving of food; he understands the 4 COP license does not require the 51% threshold, whereas an SRX license would; and having an alcohol and food relationship is important if it is to be a restaurant. He stated he concurs with staff that it would not be a suitable place to have a bar, especially with heavy equipment and being isolated, because that could create some problems.

Commissioner O?Brien stated he thinks the SRX license is free and is granted under stipulations of a restaurant meeting certain requirements; so if this restaurant wants to have liquor based on 51% of the sale of food, there would be no additional cost. He stated if they put the cart before the horse and bought a 4 COP license, that is not the fault of the Board; that license has a tremendous value to someone who may want to purchase it and operate a bar; and generally it has a value of $100,000 to $200,000 dollars. Commissioner O?Brien stated under an SRX license, they have to meet the criteria of food versus alcoholic beverages and it would be revoked if it does not; the applicant?s attorney stated he wants to have a restaurant primarily; so the Board would not be putting an undue hardship on the applicant by saying he has to get an SRX license and it has to be a restaurant. Chairman Cook stated if they were operating under an SRX license it would be the State monitoring whether or not they are meeting the 51% threshold; and the State is pretty aggressive in monitoring that, and would probably do a better job.

Commissioner Higgs stated based on the testimony she has heard tonight and testimony that staff put into the record, and based on requirements of Section 62-1901, she does not believe the CUP for alcoholic beverage consumption in IU zoning classification on the property is proper, and will not support a motion to approve it.

Commissioner Ellis stated he will make a motion to deny, with the understanding the County Attorney investigate if it is valid to put two conditions on the permit if the denial is overturned by the courts, that food sales must be 51% of the gross revenues and no alcohol sales after 9:00 p.m.

Motion by Commissioner Ellis, seconded by Commissioner Higgs, to overrule the P&Z Board and deny Item 26, Stanley A. Dowiat?s request for CUP for alcoholic beverages on-premise consumption in IU zoning classification on one acre located north of Stan Drive and north of Ellis Road; and direct the County Attorney to investigate if it is valid to put conditions on the CUP for 51% of gross revenue being from food sales, and closing time of 9:00 p.m.

Commissioner Scarborough advised it would be worthwhile to reference Section 62-1901(c) as the reason for denial; with Commissioner Ellis responding that will be fine.

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

PUBLIC HEARING, RE: ZONING RECOMMENDATIONS OF MARCH 4, 1996

Chairman Cook called for the public hearing to consider the recommendations of the Planning and Zoning (P&Z) Board, made at its public hearing on March 4, 1996, as follows:

Item 1. Donna M. Angelillo?s request for CUP for security mobile home in AU zoning classification on ten acres located at the northern terminus of Martin Road, which was approved by the P&Z Board for two years with one administrative renewal.

Donna Angelillo, 1475 Martin Road, Rockledge, requested four years which would be better suited for their financial ability to build.

Zoning Official Rick Enos advised the Board can consider two years with as many as three one-year renewals for a total of five years. Chairman Cook inquired why the one-year renewal; with Mr. Enos responding there was discussion with the applicant when three years were mentioned, so the Board approved what was requested. Chairman Cook recommended two years with two renewals.

Motion by Commissioner Ellis, seconded by Commissioner Cook, to approve Item 1 for two years with two one-year renewals. Motion carried and ordered unanimously.

Item 2. Gold Crest Realty, Inc.?s request for change from RP to BU-1-A on .36 acre located on the northwest corner of Fay Boulevard and Haverhill Road, which was tabled by the P&Z Board to its meeting of July 1, 1996, with recommendation to defer Code Enforcement action until the ordinance is amended.

Motion by Commissioner Scarborough, seconded by Commissioner O?Brien, to table Item 2 as recommended by the P&Z Board, and defer Code Enforcement action. Motion carried and ordered unanimously.

Mr. Enos advised the purpose for the tabling was to allow consideration of a change in the sign regulations; and the Board may wish to direct staff to create an ordinance that would amend the sign regulations.

Item 3. Ray G. and Linnea D. Reid?s request for CUP for substantial expansion of pre-existing use for alcoholic beverages on .88 acre located on the east side of U.S. 1, south of Broadway Boulevard, which was denied by the P&Z Board.

Mr. Enos advised the applicants have withdrawn the application.

Item 4. Brevard County Board of County Commissioners, on its own motion on January 23, 1996, authorized advertising a public hearing for administrative rezoning of 1.38 acres located on the northwest corner of Bayfield Street and Cherokee Avenue from GU with CUP for agricultural pursuits w/stipulations to GU w/consideration to modify, expand, or revoke the CUP for agricultural pursuits. The P&Z Board recommended revocation of the CUP for agricultural pursuits in GU zoning classification.

David Waters, 3218 Bayfield Street, Cocoa, advised he initiated the complaint almost a year ago; and requested the Board support the P&Z Board?s recommendation and set a time line when the birds have to be removed.

Mena Waters, 3218 Bayfield Street, Cocoa, requested the Board support revoking the CUP.

Larry Penner, 3201 Bayfield Street, Cocoa, requested the Board vote to revoke the CUP.

Motion by Commissioner Scarborough, seconded by Commissioner O?Brien, to approve Item 4 as recommended by the P&Z Board.

Commissioner Ellis stated it is not right when the Board went through this before with the CUP, and the condition on the CUP was no birds on the west side, birds moved to the east side behind the shop. He stated the Board got into map interpretation with this issue as to what was the definition of behind the shop, and east side behind the shop since there were no neighbors to the east, and if the birds were moved to an area behind the shop and the house, that would essentially block most of the noise going east from the birds.

Chairman Cook advised the revocation of the CUP does not take away that area that has already been specified for the birds. Commissioner Ellis stated the motion will remove the whole thing. Mr. Enos advised the Board can remove the CUP through the administrative rezoning process; and the portion of the property for the legal use to have birds will become nonconforming, and have the rights available in the section of the Code that deals with nonconforming uses. Chairman Cook inquired if that is Area C behind the shed; with Mr. Enos responding yes, and the other areas on the site that never had the CUP will be in violation, and the owners would have to remove the birds. Commissioner Ellis inquired if the CUP is removed, will they still be able to have birds in Area C; with Mr. Enos responding the Board would be changing the status of the use; the use is a permitted legal use in Area C; by removing the CUP, it is the same as rezoning commercial property from BU-1 to residential; and the use will become nonconforming and subject to the Code that deals with nonconforming uses. He stated the use can continue, but if it is removed from the site for a period exceeding six months, then the grandfathered status of that use will be lost.

Discussion ensued on the size of Area C, number of birds that could be kept on the property, a wild mocking bird, and birds in neighborhoods being a nuisance.

Commissioner Scarborough advised the recommendation from the P&Z Board was unanimous; the Board tried to work it out and it has not worked; it spent a lot of time on this issue; and there is no reason to delay it any further.

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

Commissioner Ellis inquired if Mr. Knox will come back with something; with Chairman Cook responding the people deserve to know whether all the birds will be removed or not, so the County Attorney will return with an opinion later in the meeting.

Item 5. Bobby G. and Patricia A. Potts? request for change from GU to AU on 2.22 acres located on the east side of Fishtail Palm Avenue, north of Areca Palm Street, which was approved by the P&Z Board.

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

Item 6. Garfield and Ida Mae Burch?s request for change from AU to RU-1-7 w/BDP for four units per acre maximum on 0.259 acre located on the west side of West Railroad Avenue, north of Rolle Place, which was approved by the P&Z Board with the BDP for four units per acre.

Motion by Commissioner Scarborough, seconded by Commissioner O?Brien, to approve Item 6 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 7. Jerry K. Worley?s request for CUP for alcoholic beverages for on-premise consumption in BU-2 zone on 1.357? acres located on the south side of SR 520, east of SR 520 and South Banana River Drive intersection, which was approved by the P&Z Board.

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

Commissioner Higgs advised she asked County Attorney Scott Knox about the necessity for reading the entire information, and he indicated the Board did not have to do that because it has an agenda that is available to the public and part of the record.

Item 8. Brevard County Board of County Commissioners? request for change from RU-2-30 to GML on 13.53 acres located north of Cone Road and east of Plumosa Street, which was approved by the P&Z Board.

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

Item 9. Albert and Marie Elebash?s request for change from TR-1 to BU-1 on .16 acre located on the south side of Lura Lane, west of North Courtenay Parkway, which was approved by the P&Z Board.

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

Item 10. William S. Bobka?s request for CUP for alcoholic beverages for on-premise consumption in BU-1 zoning classification on 1/4 acre located on the northwest corner of SR A1A and 27th Street, which was approved by the P&Z Board limited to 33 seats.

Motion by Commissioner O?Brien, seconded by Commissioner Scarborough, to approve Item 10 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 4. (continued)

County Attorney Scott Knox advised he reviewed the Sections staff is relying upon, and found nothing to change it; a conditional use is different from special exception; special exception that is granted becomes a permitted use; and Mr. Enos? logic would probably apply in that situation. He stated conditional use is there because it meets certain conditions and the Board has granted it subject to certain conditions; those conditions no longer exist so it is revoked, it was never a permitted use, it was always a conditional use; and it has no validity after it has been revoked.

Chairman Cook stated then it would require removal of all the birds.

Motion by Commissioner Ellis, to allow the owners of the property time to move the birds so Code Enforcement does not show up tomorrow and cite them with a fine. Motion died for lack of a second.

Commissioner Ellis inquired what is reasonable time to build new bird cages and move the birds, 30 days; with Chairman Cook responding they get 30 days automatically from Code Enforcement. Mr. Enos stated typically Code Enforcement gives a period of time before a meeting is scheduled before the Code Enforcement Board; and those happen monthly, so the process would take at least 30 days from this point.

Motion by Commissioner Ellis, to hold Code Enforcement in abeyance for the next 30 days to give the owners 60 days to move the birds. Motion died for lack of a second.

Commissioner Ellis stated if it is their business, they will have to buy another home and relocate all the cages. He stated it is ruthless to only have 30 days to find a house, buy a house and move the cages. Chairman Cook stated the Code Enforcement Board can extend that time if a hardship case is presented to it. Mr. Enos stated the Code Enforcement Board can take that into consideration when it makes its ruling, and can give a period of time before the violation is removed. Commissioner Ellis stated it can also choose to assess a $500 a day fine if it wants to; with Commissioner O?Brien responding the Code Board can do that, but if the applicant is making reasonable effort, generally the Board will grant the time.

Item 12. Micah G. and Norma C. Savell?s request for CUP for alcoholic beverages for on-premise consumption in BU-1 zone on 2.70 acres located on the south side of Wickham Road, east of Murrell Road, which was approved by the P&Z Board.

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

Item 13. Lori D. Shelby?s request for change from GU to TR-1 on .53 acre located on the north side of Hoot Owl Court, at its western terminus, which was approved by the P&Z Board w/BDP limiting it to one mobile home, as offered by the applicant.

Lori Shelby, 557 Hoot Owl Court, Melbourne, advised she lived in a mobile home on the property that was grandfathered in; she wants to replace the mobile home and have it as residential property; and requested support of the P&Z Board?s recommendation.

Alan Kinter, 1009 Julia Drive, Melbourne, advised there is a mobile home on the property north of Hoot Owl Court; and inquired if the request is for rezoning.

Commissioner Ellis advised the existing mobile home was grandfathered in, but if she were to replace it, the new one would not be, so there has to be a zoning change to replace the mobile home. He stated the P&Z Board recommended changing the zoning and limiting the property to a single mobile home; there are three pieces of parcels put together; and on that lot she would only be allowed to have one mobile home. He stated there was concern there could be two or three mobile homes on the property; and the applicant agreed to one mobile home on the lot, so if she has to replace the existing mobile home she can.

Mr. Kinter inquired if it opens the door for other people coming in and wanting to do the same thing and turning the whole area into a trailer park; with Chairman Cook responding this item is just on Ms. Shelby?s property.

Commissioner Ellis advised it is an unusual area; almost all the GU property is in nonconforming use; and there are a few mobile homes mixed in there. He stated there was a similar situation by Wolverine about two years ago on the other side of Aurora Road; a mobile home was there for years and they wanted to replace it; so the Board had to change the zoning to allow them to replace the mobile home. Mr. Kinter stated he does not have a problem with that.

Motion by Commissioner Ellis, seconded by Commissioner Scarborough, to approve Item 13 as recommended by the P&Z Board with binding development plan limiting one mobile home on the parcel. Motion carried and ordered unanimously.

The meeting recessed at 6:51 p.m. and reconvened at 7:07 p.m.

Item 14. Zoning Official?s Report. None.

Item 15. Salesianos De Bon Bosco?s request for change from GU and AU to PUD on 376.16? acres located east of Fleming Grant Road and west of Sebastian River Estates, which the P&Z Board recommended sending to the Board of County Commissioners with previous recommendation to approve with amended Preliminary Development Plan to include a 1.88-acre commercial tract.

Attorney Ken Crooks of the law firm Dean, Mead, Spievogel, Goldman and Boyd, 7380 Murrell Road, Melbourne, advised the firm represents the property owner and developer and is not the applicant; it has not filed a new application; the matter has gone to court; and the Appellate Court rendered its amended mandate which found the Board?s previous denial as arbitrary, capricious, unreasonable, discriminatory, and not based on any factual evidence. He stated as a result of that, it is their position, and they have indicated it to the Board in two previous hearings since the decision was rendered, that the Board?s only authority is to take the ministerial act of approving the previous PUD request. He advised they filed a motion to enforce the amended mandate that was heard by Judge Moxley on Tuesday; they did not request this hearing; and what they requested is for the Board to act in accordance with the Appellate Court?s decision and amended mandate. He stated the judge has not rendered his written decision yet; they presented the record at the P&Z Board meeting; and hopefully the Board has been provided with that record prior to the meeting. Chairman Cook advised it has been available to all the Commissioners; and Zoning Official Rick Enos advised the record is in the file. Mr. Crooks advised they also submitted a motion to enforce the amended mandate; and inquired if that was provided, along with the transcripts, to the Board prior to the meeting. Mr. Enos advised whatever was submitted at the P&Z Board meeting earlier this month is in the file. Mr. Crooks inquired if Mr. Enos is indicating the motion to enforce the amended mandate and the transcripts were provided to the Board; with Chairman Cook responding he has not seen it, but assume it is available. Mr. Crooks advised it was given to the County Attorney?s Office; Assistant County Attorney Eden Bentley represented the County at the hearing on Tuesday; and requested the motion and transcripts be made a part of the record tonight; with Chairman Cook responding that will be done. Mr. Crooks advised they do not waive any objections to any of the procedural errors occurring regarding this item; they reiterate their objection to the reopening of the matter for new evidence; and no new evidence should be submitted or new testimony elicited. He stated no new documents from County staff should be introduced; no new staff recommendation should be received; and they strongly object to the introduction of a package of documents from the Project Engineer dated today. He stated they are not in the record; they contain factually erroneous matters; and they are contrary to the findings of fact and conclusions of law that have already been made by the court in this matter. Mr. Crooks stated once the court has rendered its decision, that becomes the law of the case; and the Board is not allowed to make new findings of fact and new conclusions of law in acting in accordance with the court?s prior decision and mandate. Chairman Cook stated he did receive the information today from Mr. Enos, and inquired if Mr. Crooks received it; with Mr. Crooks responding they received it from the Project Engineer this afternoon. He requested the Board amend the prior Resolution Z-9432 to reflect approval of the request for a PUD as submitted; or table the matter until Judge Moxley renders his written decision on the pending motion. He stated if the Board does not do that, it is going to risk the wrath of the court; and if it proceeds with this matter tonight, they will not agree to a rezoning other than that which was previously submitted. He stated they are not going to engage in any further actions in regard to this matter at this point if the Board does not follow the court?s mandate and issue the rezoning as previously submitted, or table the matter until the court has rendered its decision directing the Board to do so. He noted they will answer any questions the Board may have based on the record.

County Attorney Scott Knox inquired if Mr. Crooks received the report staff sent to the engineer, and said he does not wish to respond to that; with Mr. Crooks responding that is correct; it is not in the record; and they do not believe it is factually correct, so there is no basis to respond to it.

Chairman Cook inquired if Mr. Crooks is requesting the Board either rezone the property as originally requested or table the item until Judge Moxley renders a decision; with Mr. Crooks responding that is correct, and if the Board does not do one of those two things, it will act at its peril.

Commissioner Scarborough inquired if Mr. Knox can anticipate what Judge Moxley will be ruling on; with Mr. Knox responding he was not at the hearing so he did not hear exactly what was argued, but the motion was to basically require the Board to do what the property owner asked to have done at the last application which was to rezone the property PUD with 1.25 units per acre; and the property owner construes the opinion of the court to require that. He stated the property owner was in court asking the court to pass that along to the Board so that the Board would be required to do that; and that is the issue he is going to face, whether he can do that at this point, or whether the court?s decision in fact said what the property owner thinks it said. Commissioner Scarborough inquired if Mr. Knox?s recommendation is to wait until the Board hears from Judge Moxley; with Mr. Knox responding if the Board waits, it will probably get an order from the court telling it to do something, but he is not sure what the Judge will tell the Board to do. Commissioner Scarborough inquired if the court is telling the Board to wait or proceed; with Mr. Knox responding the court is not telling the Board anything yet. Commissioner Scarborough inquired if the court did not indicate the Board should defer action until it rules; with Mr. Knox responding no, the court did not say that and did not give any kind of an opinion.

Chairman Cook inquired if Mr. Knox has an opinion whether the Board should go forward or wait; with Mr. Knox responding it is his opinion, because it is obviously subject to debate with counsel for the other side, that the court quashed the action the Board took the last time; and by quashing its action, it renders the action null and void and basically obliterates it. He stated there was no direction in the order which told the Board to do anything else; it left it open as to what happens next; and there is some authority dealing with laws similar to zoning laws, but not exactly the same, which seems to indicate that the Board can go back and entertain a reconsideration of the same project, giving alternative decisions. He stated if there is another three or four different zoning classifications that may be applicable to the property, in his opinion, the Board has an opportunity to render a decision that would put one of those zoning classifications on the property, although it may not be the one the applicant wants. He stated if the Board is going to render a decision from a legal standpoint, it would be advisable to try and render the decision based upon the existing record, then it does not have to face the argument as to whether or not it should take additional testimony. He stated if the Board takes additional testimony, the issue has not been resolved yet by the court, so it just has to find out what happens.

Commissioner Higgs inquired if Judge Moxley was aware the Board had a hearing scheduled for this evening; with Mr. Knox responding yes. Commissioner Higgs inquired if he failed to give the Board any direction as to what it should do tonight; with Mr. Knox responding it is his understanding that the Judge reserved ruling, and the ruling has not been entered as of today, so the Board is free to proceed as it deems fit. Commissioner Higgs stated she does not want to act contrary to what the Judge would have ordered, but in the first decision the Board received, she read no specific direction from the Judge; and from what she heard today and previous to today, there was no direct order from the Judge in regard to tonight?s hearing. Mr. Knox responded that is the same way he read it.

Chairman Cook inquired, if the Board takes action tonight, what effect will it have if the Judge later on directs the Board to do something else; with Mr. Knox responding the Board can cross that bridge when it gets to it; but if the Judge comes back and says the Board should have done what the applicant asked it to do, and it did something different, it would be in a position of deciding whether to appeal that decision.

Commissioner Higgs stated the Board is in a difficult position in regard to what the Judge has ruled or not ruled; she has no specific direction as to what she is to do; barring that, she will use her best judgment to do what the initial order was, which was to come up with a proper zoning on the situation; so it is her opinion that the Board should move forward, hear the testimony, and render a decision based on the evidence it is hearing.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to proceed with the public hearing. Motion carried and ordered unanimously.

Chairman Cook inquired if the applicant or representative have any further comments.

Attorney Crooks advised based on the fact that the Board has not had an opportunity to review the motion to enforce the amended mandate, or the cases that were cited in the motion, or the documents that were attached to it, it is surprising that it has taken this particular action. He stated he obviously disagrees with Mr. Knox?s interpretation of what the original order and mandate were; and he believes Judge Moxley will agree with their position. He stated at the hearing on Tuesday, Judge Moxley specifically indicated to Assistant County Attorney Bentley that just because the order did not specifically state anything other than the decision of the Board had been quashed, it does not mean that it can ignore the other four pages of the order, and it has to look at what the order intended to direct the Board to do. He noted he strongly believes the Board will find out in a week or so that the action it takes tonight is unwarranted, unauthorized, and simply exacerbates the taking of their client?s property rights that it has already engaged in.

Chairman Cook advised the Board has taken no action other than voted to hear public testimony; it still has the option of deferring and tabling until Judge Moxley acts; it still has the option of granting the zoning that was originally requested; and it still has the option of doing something else. Mr. Crooks stated he does not believe the Board has the authority to take any new evidence.

Don McLeod, 9512 Honeysuckle Drive, Micco, advised he is against the Royal Sebastian development; he and his wife Irene has lived on Honeysuckle Drive for five and a half years; and during that time, south of Barefoot Bay, three houses have been built or are under construction on Holly Street, ten houses on Honeysuckle Drive, two houses on Hibiscus, and one house on Central Avenue, making a total of 16 houses built in the last five and a half years. He stated those 16 houses have added to the traffic problem; and that is one reason he is against the development. Mr. McLeod stated he was traveling north on U.S. 1 across Sebastian River Bridge and was followed by four cars when he turned onto Main Street which is very narrow; and the land south of Micco Road is going to be built up which will add to the congestion. He stated when he first moved to the area he heard about scrub jays; now for the last year he has not heard anything about scrub jays; and he does not think they are expendable, and cannot understand why there has been no talk of them for at least a year.

Peter Player, 3685 Main Street, Micco, deferred to their attorney David Azar.

David Azar, 2006 Vernon Place, Melbourne, representing Concerned Taxpayers, advised he just became involved in this matter last week when a few of the residents of Micco, having known two or three before this time, consulted him; after consulting with them and realizing there was litigation pending, his first opportunity to review the legal records consisting of roughly four documents was on Monday; and immediately after that he filed a motion with Judge Moxley to intervene on behalf of the group that he represents which is named Concerned Taxpayers of Micco. He stated many members of the group have previously testified before the Board, particularly at the hearing on January 30, 1995; due to the short date of his motion, Judge Moxley would not entertain his intervention; however, he was at the hearing on Tuesday when Ms. Bentley was there and the attorneys for the petitioner. He stated he concurs in part with Mr. Crooks that the Judge was informed about this hearing this evening; and basically stated that whatever decision was rendered by the Board may be moot depending upon the decision that he renders. He stated hopefully the Board, if it does intend to proceed tonight, will be able to take additional testimony or additional studies by County engineers or whatever other experts are available. Mr. Azar advised in reviewing the transcript of January 30, 1995, there are many people who are in the organization that he represents who have spoken before, including Mr. Player. He stated since it has already been admitted into evidence, he would like to rely on it for some of his statements; Ms. Audette on page 21 complained about the traffic; Higgins on page 24 complained about the traffic and density; Mr. Koraly on page 32 discussed the Main Street problem, narrowness of the street, and the fact that it cannot handle any additional traffic and density; and Mr. Miller on page 40, associated with Barefoot Bay Homeowners Association, said Micco Road cannot handle the traffic of this development. He stated Ms. Bruns on page 56 spoke about traffic, density, and the fact that in this particular area new homes are being built, mostly as one home per acre; and they are substantial homes of 2,000 to 3,000 square feet with prices of $120,000 to $150,000.

Chairman Cook advised Mr. Azar?s time is up; and inquired if the Board wishes to give him additional time to wrap up. Mr. Azar advised he is on his way to wrapping up.

Mr. Azar advised he disagrees with the order from the three-panel judge granting certiorari because there was sufficient evidence on the record of January 30, 1995 that could substantiate the action of the Board, but that decision was not appealed and it stands firm. He stated Judge Moxley has reviewed it along with the application; the three-panel judge indicated there was no substantial expert evidence; however, the report that Mr. Osborne submitted on behalf of the County which contradicts the traffic expert of the petitioner is substantial. He stated it is up to the Board which one to believe, but it could have relied specifically on Mr. Osborne?s study and conclusions, as he is an expert who presented evidence on the record. He stated Mr. Osborne?s study is still available to the Board, as well as any supplement to that study. Mr. Azar advised testimony of the lay witnesses and Mr. Osborne are indicative of major traffic problems; that is the main thrust of the objections; whether or not the traffic is going to flow to the north with the 80/20 ratio of 80% going to the north and 20% going to the south, and the petitioners putting in concrete barriers to encourage traffic to the north, is a decision the Board has to make; and the Concerned Taxpayers of Micco are not inherently objectionable to the project as a PUD, but they are objectionable to the density. He stated the project calls for more than one unit per acre; the group he represents would be satisfied if the density was one unit per acre; and notwithstanding the traffic studies or conclusions of the Board with regard to the traffic studies, there needs to be some serious consideration by the Board to find some type of corridor from an east/west direction because not only is the area going to be developed, there will be future areas to the south and west of this area that will be developed; and it will only compound the situation in the future.

George Koraly, 9868 Riverview Drive, Micco, advised their newest concerns regarding the development are environmental, compatibility, and demand on the aquifer; and his concern is the traffic problem, not just the congestion, but the safety of children on narrow streets. He stated all the necessary amenities, except the Airport and Government Center are south of the development; measured on a plat, it is a little under four miles shorter going the south route than the north route; they voiced concerns at the previous hearings, and presented graphic photos of the Main Street bottleneck; but he does not know if that evidence was presented to the three-judge panel. Mr. Koraly advised it is difficult to believe that the decision was made in favor of the developer based on so-called experts who stated 80% of the traffic should go north; there was little or no reference to the return traffic in their presentation; and when pressed for the issue, Mr. Kamal told the Press the developer expects the people to take the north route, but there is no way of controlling what route the people will drive. He also said they would place a sign on U.S. 1 directing returning Royal Sebastian traffic north to Micco Road; and inquired what would that sign read. He stated he has lived in the area for ten years; 98% of his trips are to the south; and 75% of the 2% northbound trips are to the Government Center. Mr. Koraly advised Billy Osborne?s report refutes the developer?s expert analysis of the traffic impact; it will be more of a problem than he states; 475 units at 5 daily round trips per day would equal 2,375 trips; 20% heading south would be 950 trips on narrow Main Street; and 1,900 trips, which is 80% of the 2,375, is approximately 4,000 round trips on that narrow street. He stated the street is not just narrow, it is physically part of a boat launching ramp; people cannot access the boat ramp without backing and turning on Main Street; and the developer gives no consideration to the traffic that will be generated by a semi-private golf course. He stated the Board should consider the heavy equipment traffic during land preparation and ongoing truck traffic during construction; the trucks could run people off Main Street; and inquired if the PUD is approved without taking steps to correct the traffic problem, how will the Board justify denying the next PUD. He noted the developer stated there will be $1,700,000 in impact fees; and suggested the Board get a bond or something to start a project to correct the traffic problem. William Schachtel, 9495 Hibiscus Avenue, Micco, stated he was shocked by an attorney threatening the Board with the wrath of a judge and that citizens are not supposed to be heard. He stated nobody is going to go north to go south; the new evidence he can bring up is his own personal experience; he was stuck in the middle of U. S. 1 trying to make a lefthand turn on to Main Street; and when he went to visit a friend on Fleming Grant Road, he had to sit at an intersection for almost two minutes. He requested the Board let common sense prevail.

Cheryl Bruns, 9737 Riverview Drive, Micco, advised her main concern is what will stop the next thousand acres of land in the area that is undeveloped from demanding the same higher density before the streets are addressed; they are extremely concerned about the density and are not trying to stop progress; but they want to see it done responsibly.

Peter Player, 3685 Main Street, Micco, advised he has lived on the dead-end section of Main Street long enough to see many of his neighbors and friends pass away, and has seen a lot of changes; long before Barefoot Bay, they used to play in that area; all land belongs to God, He just lets people use it for a while; and people must be responsible for its fate. He stated higher density leads to lower quality of life and compatibility; it bleeds the natural resources and can destroy and ultimately vanish wildlife; and the eco-systems are being destroyed for profit. He stated higher density will increase the use of roadways, making them more dangerous for children and citizens of Micco; it will impede the response of emergency services; it will put tremendous stress on their unique little town and alter forever the character of their neighborhoods; and it will re-sculpture their unique geography and topography. He stated higher density will greatly disturb the quality of life in long-established neighborhoods; all citizens have the right to maintain the quality of their lifestyles; and they must have that right. He stated he is not against developers, he is against mindless, lifeless leviathans taking control of an often helpless innocent public; he is against corporate power without corporate responsibility; and he is not against profit, but is against inhuman, vicious, and false doctrines by which profit becomes virtue. He stated his purpose is not to condemn the system, but to unveil the myths that permit the system to exploit the weak.

Chairman Cook inquired if the applicant wishes to address the Board. The applicant?s attorney declined to respond.

Mr. Enos advised he would like to place two sets of documents officially into the record; the first is his March 28, 1996 memo to the Board of County Commissioners which describes staff?s proposed findings of fact; and the second is four resumes of the individuals who are mentioned in the March 28, 1996 memo--Billy Osborne, Jr., Robert S. Kamm, Susan Hann, P.E., and himself, Richard D. Enos. Chairman Cook advised with no objections, those will be made part of the record.

Chairman Cook advised he met with staff today and received those documents; and inquired if Mr. Crooks had a comment; with Mr. Crooks responding for the record, they object to the introduction of those documents; they have not seen the March 27, 1996 memo or the resumes ; and they object to the introductions. Mr. Enos advised he is submitting the March 28, 1996 memo and not the March 27, 1996 memo.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to put the information, staff?s new findings, and the original findings into the record, as well as the discussion of the applicable zoning theory, and the resumes referenced.

Commissioner Scarborough advised Judge Moxley had an opportunity this week to speak directly to what is occurring tonight; the Judge did not say the Board could not receive information; and he may come back and give the Board further instructions, but until then it needs to act within the purview of what the Board generally does, and that is take public comment. He stated he has served on public bodies for 16 years and has been prevented from voting until everybody had an opportunity to be heard; that is fundamental to a public hearing process; and to violate that basic premise without direction from the Judge is violating fundamental concepts of how participatory government is supposed to operate; so he cannot abandon it in such a random manner.

Chairman Cook advised the Board voted unanimously to hear the public; without specific orders not to, the Board is obligated to allow people to speak; that is what public hearings are for; and he cannot imagine having a public hearing and not allowing people to participate.

Commissioner Higgs amended the motion to include Mr. Crooks? request to accept into the record the motion to enforce the mandate and the document backing it up, and basically to put all that information into the record. Commissioner Scarborough accepted the amendment.

Chairman Cook called for a vote on the motion as amended. Motion carried and ordered unanimously.

Chairman Cook advised the Judge is going to rule on this issue; the decision the Board has to make is if it wants to defer action until he rules. He stated the Board could reach a decision tonight and do something, but whatever it does may be moot, depending on what the Judge finally rules. He inquired if Mr. Azar said Judge Moxley made the comment that whatever decision the Board makes tonight would be moot based on what decision he makes; with Mr. Azar responding after Judge Moxley indicated he was going to reserve decision, Ms. Bentley said the Board had a meeting scheduled for March 28 and should it proceed; and the Judge said it was up to the Board, but whatever decision is rendered may be moot by his decision. He noted the Judge is not waiting for the Board to make any decisions. Chairman Cook inquired if what the Board does will have no impact on the decision of the Judge; with Mr. Azar responding he does not believe so. Chairman Cook stated the Board should not waste its time until it knows what the Judge is going to do.

Commissioner Scarborough inquired of the County Attorney if the Board should wait for Judge Moxley?s ruling; with Mr. Knox responding if the Judge enters an order telling the Board to do something different than what it does tonight, it will have to address that at a different time. He stated he wants the authority to look into the possibility of filing a petition for writ of quo warranto to stop the Judge from making any decisions; and he is not sure he has any jurisdiction to make a decision at this point, because he is not sure his mandate is clear enough for him to make a decision. Mr. Knox stated if the Judge has jurisdiction and orders the Board to do something specifically, he cannot see how doing something tonight is going to make any difference; and if it made a decision and the Judge decides to overrule that decision, the Board could appeal it.

Commissioner Higgs advised the Judge?s first order did not require specific action of the Board; it is within its right to act tonight in hearing the testimony, because the Judge did not give an order not to hear testimony; and she is prepared to act tonight. She stated there are serious questions about the authority of the Board and the public to participate in those decisions; and the Board should move forward to make a decision based on the testimony it received that is part of the record.

Chairman Cook inquired if the County Attorney wants permission to question the authority or jurisdiction of the Judge in this matter; with Mr. Knox responding he wants to look into that issue; and if he feels there are grounds to challenge that authority, he would like permission to do that. He stated this has to be resolved because everyone is floundering around trying to figure out what the Board is supposed to do after it gets a judgment back that says its decision was bad, but not telling it what to do. Mr. Knox advised he read the Supreme Court?s decision on Snyder that allows the Board to make a decision based upon the range of zoning classifications that are available and consistent with the Comprehensive Plan; and the fact that it chose to deny an application does not mean that it has precluded the applicant from applying for a different classification that is still consistent with the Comprehensive Plan. He stated he thinks as the case progresses up the appellate level, that is what the court is going to say; but somehow the Board needs to get up there and maybe the best way is to make a decision and see what happens.

Discussion ensued on whether to move forward, table for Judge Moxley?s decision, and lack of direction from the Judge.

Chairman Cook advised if there is no motion to wait until the Judge rules, the Board will move forward with further discussion.

Commissioner Higgs recommended the following conclusions be incorporated into the resolution in regard to the zoning decision: (1) the impact to the neighborhood streets in Little Hollywood will be more severe than estimated by the applicant based upon a debatable trip distribution assumption; (2) there are major capacity improvements to Micco Road that will be prohibitively expensive; and (3) infrastructure improvements will be necessary with public funding. She stated she reviewed the facts in regard to compatibility of the project with surrounding properties in an effort to determine an appropriate zoning transition from RU-1-7 on the east, which is a nonconforming subdivision of many years ago at a density of four units an acre, other transitional zoning from AU on the west and north of one unit per two and a half acres, SEU on the south at one unit an acre, and GU on the north at one unit per five acres. She stated in order to analyze this and determine an appropriate zoning that transitions between those varying zonings, she reviewed the acreage provided by the applicant?s engineer which indicates 376 acres with 48.2 acres of wetlands; and that density, if computed on the density of wetlands at one unit per five acres and one unit per acre on the remaining 327 acres, calculates to an overall density of approximately .88 or .9 unit per acre. She stated she looked at the information regarding the PUD; and it would be her recommendation and motion that the Board approve a PUD zoning on the property with a .9 density cap.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to approve PUD zoning for Item 15, with a density cap of .9 unit per acre.

Commissioner Higgs advised she received several calls today from Cheryl Bruns, Wally Kramer, and Don Miller, giving indication of support for a residential zoning in the PUD category because it provides better planning; she also wants to put into the record that Assistant County Attorney Eden Bentley and she met with representatives of Royal Sebastian several months ago and discussed potential donations of land for a community center; there were also discussions regarding access; but there were no discussions in regard to this zoning.

Commissioner Scarborough inquired if the zoning is okay; with Mr. Enos responding PUD is a good classification for the area; he supports the Board?s decision to use the PUD classification; the density at .9 unit per acre is supportable because the Board has a range of up to 4 units an acre to the east, about .8 unit to the south and west, and about .4 unit to the acre to the north, so .9 is a proper transition between those different classifications that are immediately abutting the property.

Mr. Crooks advised they do not agree to accept the motion as proposed, and would like to have clarified for the record what application the Board is acting on. He stated they have not submitted an application; it is not his understanding that this is administrative rezoning; and for the record, they would like to have the motion reflect on what basis the action is being taken.

Mr. Knox advised the action is back before the Board because the three-judge panel quashed its original decision, leaving it to make the decision as to what zoning should be on the property. He stated counsel for the applicant, in the former proceeding, feels that should be what they asked for; there is a dispute whether that is the case or not; and the Board is acting within its rights to assign the zoning it deems appropriate.

Commissioner Ellis inquired how the Board can impose a PUD classification; with Commissioner Higgs responding that was their original request. Mr. Knox advised the original request was for PUD at 1.25 units per acre, but the request is still pending and has not been acted upon by the Board because the decision of the Board was quashed, and there has been no withdrawal of that request. Commissioner Higgs advised the request was for change of classification from GU and AU to PUD. Chairman Cook inquired if the Board is acting on that original request; with Mr. Knox responding that is correct. Commissioner Ellis inquired where will the Board be if the PUD is rejected by the applicant; with Mr. Knox responding if they do not like the PUD, they can come back in and apply for rezoning or the Board can zone it to something else if it so chooses, following whatever procedures that are appropriate for rezoning property. Commissioner Ellis inquired if they reject the PUD would they come in for a normal rezoning since a PUD carries with it other things beyond just zoning. Mr. Knox advised they submitted a PUD application; the motion restricts it to .9 unit per acre as opposed to 1.25 units per acre they asked for; they submitted a PUD Plan; and if they want to withdraw that plan, they can do so, and the Board can do something else with the property.

Chairman Cook advised if the Board passes the PUD with the restriction on density and they reject it as indicated by Attorney Crooks, where does that leave the Board; with Mr. Knox responding it leaves the property with PUD zoning at .9 unit per acre if that is what passes; and if the Board does not want to put that on the property, it does not have to. Chairman Cook advised his concern is a PUD is generally a voluntary form of development that developers come in and suggest.

Commissioner Higgs advised she read the original decision from the panel, and one of the concerns was the remainder of the GU classification and failure of the Board to give a zoning; that was some of the rationale in another case, to give an applicable zoning that met the Comprehensive Plan as well as the conditions set forth in the testimony; so the Board needs to provide a suitable zoning classification. She state the applicant requested a PUD; the Board is responding to that request, but there is nothing that requires it to respond to the request in the exact same manner as it was requested. She stated the evidence indicates to her the density she suggested makes a PUD with a cap on density compatible with the surrounding area, and transitions between the higher density on one part of the adjoining properties to the lower densities that are also surrounding the property.

Chairman Cook inquired if the Board has ever granted a PUD with a lesser density than was requested if the applicant did not voluntarily acquiesce to it, or is this an unusual action on the part of the Board; with Mr. Enos responding there have been situations in the past where the density that was approved was lower than what was originally requested by the applicant, but he does not recall a situation where the applicant rejected it or stated in public that he rejected the density that was offered. Chairman Cook stated he can see zoning the property as SEU, BU-1, RR-1, etc.; and that is his concern. Mr. Knox advised from a policy standpoint, the Board is free to reject the PUD zoning and put something else on the property if it wants to; the Ordinance regarding PUD says at a regularly scheduled public meeting the Board will review the recommendation and preliminary development plan and either approve, approve subject to conditions, or disapprove the preliminary development plan application; and this motion imposes a condition that the density be limited to .9 unit per acre which is consistent with what is authorized in the Ordinance. He stated the fact that the Board may not have done it before may be correct, but the Ordinance does authorize it.

Commissioner Ellis advised the intent of a PUD is to trade a higher density for more open space, and not to impose a lesser density than what they would get under normal zoning procedures. He stated if PUD is rejected by the applicant, he can come back for one unit to an acre zoning and get virtually the same density, but instead of central sewer, it will have 300 plus septic tanks. He reiterated the whole idea of the PUD is to grant additional density as trade off for open space. Commissioner Ellis advised the Board discussed the PUD last year, and the whole intent was open space; and it modified the PUD because the way it was written before it was only good for golf courses. Commissioner Scarborough stated it was clustering of densities as opposed to overall density. Commissioner Higgs stated the purpose of the PUD is to allow flexibility to the developer to move densities around and adjust things and have a better project. Discussion ensued on the purpose of PUD zoning. Commissioner Ellis stated if the Board wants to rezone the property and not grant the PUD that is fine, but coming in with a lesser density PUD insures it will be back again when the PUD is rejected; and it will be a never-ending issue. Commissioner Higgs stated based on the Comprehensive Land Use Map, testimony and facts she as given, the proper density is what is in her motion. Commissioner Ellis stated he is not arguing with the density, but he does not believe the Board can impose a density issue through a PUD; and if it wants to rezone the property at that density, it needs to give a real zoning classification and not impose it through the PUD.

Chairman Cook advised the applicant did ask for PUD originally and the Board is reconsidering that, but there is no zoning classification per se of PUD; the change in the PUD Ordinance was to stop compelling people to have to put in golf courses; but PUD has very significant advantages in a sense of planning, such as density transfers from wetland areas. Commissioner Ellis stated there are also many restrictions that come with a PUD that they would not have with a normal zoning, that is why it was a trade off. Chairman Cook stated he thinks the decision will be made by Judge Moxley; with Commissioner Higgs responding that would be extremely sad if that is the case; and what would be the saddest part is if that is what the panel felt was appropriate, it should have done that when it first heard the case. She stated prior to the Board voting on the motion, she would also like to include in the final resolution staff?s findings of fact and her analysis of those findings of fact.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to amend the motion to include in the final resolution, staff?s finding of facts and Commissioner Higgs? analysis of those findings of fact.

Commissioner Ellis advised the other issue that has to be looked at which has nothing to do with this issue, are the roads, because they already have a problem in the area at the railroad crossing; and it is time to start looking for solutions to that problem because the road cannot handle another 300 or 500 homes. He stated the County needs to look at another form for getting over the railroad tracks. Chairman Cook inquired if the applicant originally had a proposal to pay the impact fees up front to be used for traffic improvements that Commissioner Ellis mentioned; with Mr. Enos responding there was a proposal to pre-pay some impact fees, but that may have been withdrawn by the applicant at this point. Commissioner Ellis stated whether that will happen or not is not as relevant as looking at a long-term solution, what needs to be done, what it will cost, and setting aside money for that solution. He stated he brought the issue up about putting a bridge over the railroad track so they do not have to direct traffic down Little Hollywood streets and over the railroad tracks there; and Florida East Coast Railway will not allow another crossing. He stated the logical solution would be to have a feasibility study done on putting a bridge over the tracks and getting the cost figures so the Board knows what it is going to cost. Commissioner Higgs stated that is incorporated into the findings of fact based on a 1991 feasibility study that Ms. Hann referenced at 2.5 million dollars. Growth Management Director Susan Hann advised staff reviewed a previous study that was done by Bussen, Mayer Engineering regarding a railroad crossing proposed in the North Brevard area; and based on the information in that study, they estimated an approximate cost in the 2.5- million dollar range. She noted the study is several years old, and the conditions are not the same, but that gives the Board a ballpark figure. Commissioner Ellis inquired if that is the cost of the bridge; with Ms. Hann responding the bridge and the approaches, and substantial improvements that need to be made on either side of the bridge in order to provide for proper approach distances. Commissioner Ellis inquired if that would be putting a bridge in at Micco Road; with Ms. Hann responding no, it was just a general estimate for a new bridge over the railroad tracks, and staff did not specifically analyze any location for the bridge at this time.

Commissioner Higgs advised her motion and analysis are based on the facts as they were presented substantially in the original record.

Commissioner Ellis stated if the Board is going to get a lot of information for zoning meetings, it is unfair to them if it comes the day of the meeting.

Commissioner Higgs amended the motion that the resolution include the findings of fact are based on the original record. Commissioner Scarborough accepted the amendment.

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

Chairman Cook recommended the Board defer a decision and wait to see what the Judge says.

Motion by Commissioner Scarborough to table Item 15. Commissioner Higgs objected to the motion to table, and requested further discussion. Commissioner Scarborough withdrew the motion to table.

Commissioner Higgs stated the Board needs to make a decision tonight based on the record; if it is reluctant to move into the PUD zoning, then based on the record and the evidence it has, the Board could consider a residential density at one unit per acre; and inquired if that would be SEU; with Mr. Enos responding SEU requires one-acre lots; they would not be able to get one unit per acre from an SEU classification after subdividing lots with streets and other requirements; and the maximum density it would yield would be about .8 unit per acre. He stated another option is SR which requires a half-acre lot, but with the limitation of no more than one unit per acre; and inquired of the County Attorney if that can be done. Mr. Knox stated he would prefer that not happen; but it is okay for an applicant to come in with a binding development plan that limits his density to one unit per acre for a classification that allows a greater density. Mr. Enos stated the closest classifications are RR-1 or SEU which require one-acre lots, but the yield will be less than one unit per acre. Commissioner Higgs inquired if the difference between RR-1 and SEU is the size of the house; with Mr. Enos responding the size of the house is one thing; SEU is 2,000 square-foot homes and RR-1 is 1,200 square-foot homes; but the other major difference is that RR-1 is rural residential which permits horses and other horticultural uses as accessory uses, whereas SEU being Suburban Estate Use does not permit those types of rural accessory uses.

Commissioner Higgs stated, based on the compatibility issues of the project and surrounding properties, as well as the zoning transition from RU-1-7 on the east and AU on the west, and density of one unit per 2.5 acres in AU, and the SEU on the south with one unit per acre, she would move RR-1 zoning for the property.

Motion by Commissioner Higgs, seconded by Commissioner Ellis, to approve RR-1 zoning for Item 15, Salesianos De Don Bosco?s request for change from GU and AU to PUD on 376.16? acres located east of Fleming Grant Road and west of Sebastian River Estates.

Discussion continued on why the Board has to put some type of zoning on the property, waiting for the Judge?s decision to address the issue, and what that decision may be.

Chairman Cook stated his impression from what Mr. Azar said was the Judge will make his decision without relevance to what the Board does tonight; and inquired if that is Mr. Knox?s impression; with Mr. Knox responding the Judge may decide it; the Board may decide to appeal it; the Judge may be found wrong; and if so, the Board has assigned a zoning classification if it acts tonight. He stated if the Judge is pleased with what the Board does tonight, he may not do anything. Chairman Cook inquired if the Judge may factor in what the Board does tonight; with Mr. Knox responding he does not know what the Judge will do.

Chairman Cook stated if what the Board does tonight will have some impact, then it could put a zoning on the property. Commissioner Scarborough stated the Judge could have said more than he did, and having said nothing, it is almost as if he is waiting for the Board to take action. Commissioner Higgs stated the Board has a responsibility to establish zoning and land use; and she does not choose to defer that decision and abdicate it to the courts. Chairman Cook stated no one is suggesting that. Commissioner Higgs advised the Court said it does not tell the Board what to do, it tells it what it did is unacceptable; so based on the facts, based on incorporating into the resolution staff?s findings of fact and her analysis, and based on the old record, the Board should establish a zoning classification for the property.

Commissioner Higgs amended the motion to include in the resolution staff?s findings of fact and her analysis of those findings; and inquired if Commissioner Ellis will accept that. Commissioner Ellis responded everything has to go into the record. Chairman Cook stated Commissioner Ellis included that in the motion. Commissioner Ellis stated he may not agree with everything, but it all has to go into the record.

Chairman Cook stated he does not want to defer the Board?s constitutional authority to a judge, but he was just pointing out that the Judge is going to make a decision and the Board will probably have to revisit this issue; his impression was that what the Board did tonight would be irrelevant to the Judge?s decision-making process; but Mr. Knox indicated the Judge may consider it; so if what the Board does tonight may be a consideration, then he is willing to go ahead and do that. He noted he did not see the need for the Board to do something if what it did was going to be irrelevant.

Mr. Knox advised the mandate was so unclear it left the door open for the Board to do something; if it does something, the Judge has to look at what it did versus what he thinks the mandate said in order to make a decision of any kind; so it does help to make a decision of some kind. He stated for clarification purposes, the law in the State has always been, since the inception of zoning in 1926, that the courts cannot insert themselves as a super zoning board; they cannot take away the constitutional jurisdiction to make those decisions; nothing that Snyder did changed that; and if anything, Snyder re-emphasized it by saying the Board can make decisions that are consistent with the Comprehensive Plan. He stated that is a decision for the Board to make; and if the Judge decides to impose the will of the court on the Board, it has an appealable issue.

Commissioner Higgs advised in her previous disclosure of the people she talked to or received input from, she wants to also include that she met with staff, including Mr. Enos, Ms. Busacca, County Attorneys Scott Knox and Eden Bentley; and she wants to be sure that is in the record. Chairman Cook stated he mentioned earlier that he did get a briefing from Mr. Enos.

Chairman Cook called for a vote on the motion as amended. Motion carried and ordered; Commissioners Scarborough, Higgs and Ellis voted aye; and Commissioners O?Brien, and Cook voted nay.

Commissioner Ellis advised the Board has to put some kind of zoning on the property to get a reply back from the Judge; he does not necessarily agree with the zoning, but it has to put some zoning classification on it or it will not get anything back from the Judge for further direction. Chairman Cook stated he does not concur with that, so they have a difference of opinion.

Attorney Crooks stated, for the record, the applicant, previous applicant, property owner, developer do not accept the motion that has been approved here tonight.

Mr. Knox advised the original motion that requested Mr. Crooks motion to enforce the mandate and accompanying materials be inserted in the record was denied, so if the Board wants to do that, it needs to make another motion.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, that Mr. Crooks? initial desire to put his motion to enforce the mandate and documents thereof into the record also be included to be sure his information is in the record. Motion carried and ordered unanimously.

Commissioner Scarborough advised the County Attorney wanted authorization to investigate the issue. Mr. Knox advised he wants to look into the issue of whether or not the County can apply for a petition quo warranto to prevent any attempt by the court to impose its will on the Board.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to authorize the County Attorney to investigate the issue of whether or not the Board can apply for a petition quo warranto to prevent any attempt by the court to impose its will on the Board; and if it is appropriate, to file the petition.

Commissioner Scarborough stated those are fundamental issues of how zoning takes place; the Board is quasi-judicial and has a burden of proof; it plays multiple roles; and it is now in a posture where it cannot allow the public to participate and has attorneys saying the Board cannot go and view the site. He stated there are strange things that have been alleged to this Board; and before it starts responding to them, it better make sure that is the law of Florida, because it is contrary to what he believes it to be.

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

The meeting recessed at 8:38 p.m. and reconvened at 8:56 p.m.

Item 16. ABC Ventures, Inc.?s request for change from BU-1-A with CUP for child care center and a binding development plan to BU-1 and removal of the CUP for child care center and binding development plan on 2.14? acres located on the southwest corner of South Courtenay Parkway and Cone Road, which was withdrawn from the P&Z Agenda as requested by the applicant.

Attorney Brad Bettin, 96 Willard Street, Suite 302, Cocoa, representing ABC Ventures, advised this situation is similar to the one the Board just dealt with; some time ago the Board dealt with a zoning application seeking BU-1 zoning with removal of the conditional use permit and binding development plan; evidence was presented on behalf of the applicant; it had a favorable recommendation from County staff; neighbors, and other interested people appeared and said they did not want it; the Board voted to deny the BU-1 zoning; and a petition for writ of certiorari was filed. He stated the petition of writ of certiorari was granted by the circuit court; and now it is back to the Board for determination of what is to happen. He stated they do not believe this is a public hearing; there has already been a public hearing on this matter held many months ago where all the evidence was presented; the mandate of the circuit court was very explicit on two points--(1) the applicant had met the burden that he was required to meet in order to support the rezoning he sought; and (2) the other evidence of record that was presented at that time was insufficient to support denial of the rezoning. He stated one instance where this is different from the last application is there are a number of other different zoning classifications which arguably could be considered and would be compatible, etc. with the previous item; in this instance the circuit court has told the Board that the BU-1-A zoning which exists on the property is not acceptable; and the only other zoning classification that is available is BU-1; so the only thing available to the Board in this situation is to grant what they requested. Mr. Bettin advised they do not feel it is proper or appropriate for the Board to take any new evidence, testimony, argument, or anything; and they can explain that by basic understanding of fairness. He stated everyone is entitled to his day in court; there was a day in court; there was a P&Z hearing; and there was a Board of County Commissioners public hearing many months ago; a decision was rendered after that hearing; but the wrong decision was rendered after that hearing. He stated this case comes back to the Board from the circuit court; it has been kind enough to give the Board an opportunity to make the right decision without the court having to hold a gun to its head and tell it what that right decision is; it is in the Board?s interest, along with everyone else?s, to understand what mandate is; mandate is the appellate court?s official method of communicating its judgment to an inferior tribunal; and in this instance, the Board of County Commissioners is the inferior tribunal. He stated the circuit court has told the Board that the decision it made was inappropriate; and now it has an opportunity to make an appropriate decision; as Mr. Crooks said compliance with the mandate is a ministerial act to be performed; it is the duty of the trial court to enforce a mandate and not stray from that; and that is the Nicholson v. Arico case, 565 Southern Second 843 of the Fifth District Court of Appeal, which is the court of appeals that is over Brevard County. Mr. Bettin advised when a mandate comes to the Board, the Board?s obligation is to look at that mandate and in a good faith attempt to bring life to it; in this instance, there is only one way to bring life to that mandate; and that is to grant the rezoning that was requested many months ago. He stated there are other cases that address specifically the issue whether or not the Board has the right to take new testimony; and he submits that it does not, because it is inconsistent with a good faith effort to enforce the mandate. He noted in the O. P. Corporation v. Village of North Palm Beach case, 302 Southern Second 130, Florida Supreme Court, the Supreme Court said the judgment of an appellate court, where it issues a mandate, is a final judgment and compliance by a lower court is a ministerial act requiring the consent of the reviewing court to permit presentation of new matters affecting the case. He stated additional evidence offered by anyone here tonight is a new matter that affects the case; and they do not believe that is appropriate. He stated there is another case, Tamiami Trail Tours v. Railroad Commission, 174 Southern Second 451, Florida Supreme Court, from 1937, which states, ?Where an order is quashed, it leaves the subject matter that is the controversy pending, as if no order had been rendered, and the parties stand upon the pleadings and proof as it existed when the order was made.? Mr. Bettin advised it is as if everyone is transmitted back into the date when the Board last met and considered this matter; it is now time to make a motion at the end of the presentation of all the evidence; and the Board has one additional piece of information which is that denial of the rezoning is not acceptable to the circuit court. He stated there is no evidence in the record that was before the Board then or the record that is before the Board now which supports denial of the rezoning; the Mondeen v. ABC Radiators case, 367 Southern Second 232, Third District Court of Appeal, 1979, states, ?Upon mandate by an appellate court, the lower tribunal must receive the appellate court?s permission to allow new evidence.? He stated in that case, the lower court allowed new evidence, pleadings to be revised, and a jury trial to occur; and the District Court of Appeal told the trial court it did not tell it to do that, and told it to have a new trial on the issue only, and not to change the trial around. Mr. Bettin advised in this instance, all the Appellate Court told the Board is there is no competent substantial evidence supporting the denial of the rezoning; and since there is only one other zoning available, the one they requested, it is clear what the Board has to do. He stated the problem with re-opening the evidence in this situation is one of fairness; everybody had their trial; and inquired how many times does the applicant have to stand here and have opponents get another chance to make a case they failed to make that the rezoning should not be granted. He noted the applicant made his case; the opponents made their case; both sides deserve to be judged based upon that case; and they submit that the rezoning should be granted.

Commissioner Higgs advised this is not a trial; the Commissioners are not attorneys nor judges; but the applicant?s attorney mentioned a case where the court could allow new evidence to be entered; and inquired if there is some action the Board can take tonight that would request the circuit court to allow it to get new evidence. Mr. Knox advised he is not sure what the case says because he has not read it, but assuming the Board could make a motion to go back to court and ask to take new evidence, the question is what will that get it. He stated the court said the Board?s prior decision was not based upon substantial competent evidence; and inquired if Commissioner Higgs is asking that the Board go back to court and ask to improve the record so it can make the same decision. Commissioner Higgs stated there were other things that came into play in the decision; two attorneys have said tonight the Board cannot put competent substantial evidence before the judge; and she wants to know if there is a legal motion the Board can make that would ask the court to open the record and take new evidence. Mr. Knox advised based on the presentation he heard, the answer is yes it can file a motion with the court asking to re-open the record so it can take additional testimony; however, the fact that it only had two choices to begin with and the court did not like the first choice, the Board?s chances of getting that motion granted is nil, none, and probably zero. Commissioner Higgs advised the court did not say it did not like it, it said the denial was not based on competent substantial evidence; and if the court wants the Board to base its decisions on competent substantial evidence, the Board should ask it to let it take more evidence, because the issue of whether or not the Board can take new evidence is critical.

Mr. Bettin advised the law is clear that the Board is sitting in a quasi-judicial capacity that requires it to act as judges, not entirely subject to all the rules and requirements, but it does have an obligation to be impartial and to weigh evidence fairly, and to be fair to all parties. He stated the previous series of questions to the County Attorney about asking the court to re-open the matter so it can get competent and substantial evidence in support of its decision is not the role of a judge to become a party in a proceeding where the determination is not valid; and he would strongly object to re-opening the case so the Board can get evidence to justify what it wants to do. He noted he hopes the Board does not think it is its role in a circumstance such as this, to ask permission to re-open evidence so it can get the evidence that was lacking at the previous hearing.

Commissioner Scarborough advised the Board is being told by the court that it is quasi-judicial, but at the same time it says the burden of proof shifts to the Board; and inquired how does the Board act in that manner. Mr. Bettin advised under the Fifth Amendment, property owners have a right to use their property as they see fit, subject to certain regulations; the governing body, through zoning laws, imposes those regulations; that makes the Board a player in the game; if it does not want to grant the rezoning, it has to justify it; and that is what Snyder is about. He stated the Board can justify it in several ways; if County staff does investigatory work and comes back with evidence and recommendations saying the zoning is not appropriate because of certain reasons, that provides evidence the Board has a right to rely on if it is competent and substantial. He stated in this situation, the Board is dealing with a very peculiar segment of its cases; it is a situation where staff is telling the Board the rezoning request is consistent and should be granted and the neighbors are saying they do not like it; however, the neighbors do not have expert testimony and only have their personal dislike of the zoning that was requested. Commissioner Scarborough stated the idea that only expert witnesses can testify and give evidence is not a part of the body of law that he knows. Mr. Bettin stated he does not disagree with that formulation either; lay people have the ability to offer testimony; however, they cannot offer testimony in certain areas; and in this instance, the circuit court ruled that the testimony that was offered was not competent and substantial. He stated County staff?s recommendation in favor of a rezoning application is entitled to great weight; and nothing in the record indicates County staff changed its position. Commissioner Scarborough stated staff comes in with a great deal of weight; they are supposed to be neutral and trained experts in planning; but as the Board proceeds, additional information can come forward from both sides; and many times the applicant comes in with information and the neighbors agree. He stated it is an information gathering session; and to say it has to stop with a report, then it would not need the Board or need to have hearings. He stated additional information that is provided at this meeting from both the applicant and his professionals and from the community and staff can produce new views; staff is not married to one report and will respond to information provided at the hearing as well; and he has seen staff vary its opinions. Mr. Bettin advised there are plenty of answers to that; their firm represents municipalities, and the boards have to deal with those situations as well. He noted the Board will find a situation where there is highly contentious information as in this situation where the hearing has been closed and a decision made. Commissioner Scarborough stated it is like a trial that is dynamic; information keeps coming in and people are responding to it; experts continue to be called on; so it is hard to say there is one final decision until there is a hearing. Mr. Bettin advised the Board is in the position of being the trier of fact; and it will have the ability, when it gets one of those highly contested issues with a lot of input, to ask for a recess of the hearing and ask staff to review its decision and recommendation based upon the information that has been made available; and the Board does not have to complete the hearing the night it starts if it thinks there is new information that may change staff?s opinion. Commissioner Scarborough inquired if there is any impropriety in asking staff a question at the meeting to confirm the validity of an issue and does every meeting now have to be tabled so staff can go back and review the comments that were made and revise its statement; with Mr. Bettin responding if staff continues to recommend approval, and in this instance it has never changed its recommendation. Commissioner Scarborough stated staff can and does change views as additional facts come forward. Mr. Bettin stated he does not know what an appellate court would tell the Board, but he knows that in this instance that never happened. Commissioner Scarborough stated Mr. Bettin made a lot of generalities that he disagrees with.

Commissioner Higgs advised Mr. Bettin said the Board is charged with being fundamentally fair; she agrees with that in every situation, and it tries to be fair; but if it has to get into balancing sides, then it needs to provide an attorney, expert witnesses, and a full array of services that are seen in a court of law for the other side, other than the applicant, to assist people in developing and presenting their cases. She stated if the applicant has an attorney, then the Board will have to help the other side to have an attorney that is a public defender; that is being fair; and at the Public Service Commission hearings, the Legislature provides a full array of public service lawyers and expert witnesses, etc. for the people. Commissioner Higgs stated if that is where the Board is going, it is going to be extremely costly; the Board may need to table this issue and appeal to the court to take new evidence so it can ensure that there is a full provision of fairness to the citizens in this situation; otherwise, people who have money and the ability to provide expert witnesses will have the advantage and there will not be a fair hearing.

Chairman Cook advised there are additional speakers; and inquired if the Board wants to hear additional testimony. Commissioner Ellis stated staff already reviewed the rezoning application; there is an attorney that works with staff; under Commissioner Higgs? scenario, it would be just as unfair for a person who comes in with a single lot and staff recommends denial; and he would be faced with Mr. Kamm, Ms. Hann, Mr. Enos and Mr. Knox, and would be completely overwhelmed.

Commissioner Scarborough stated in the prior case, the courts were precluded from doing zoning under Florida law; they can say the Board erred but cannot tell it what to do; this Board vests zoning; and in this case, there is only one of two options. He stated when it is wrong on one, it has to go to the next one; and he has no problem listening to testimony, but there are no other options, unless the County Attorney has other wisdom to share. Commissioner Higgs stated the court said the Board did not have substantial competent evidence; maybe it was not the evidence, but the way the evidence was presented; and sometimes it depends on how a judge sees the evidence and how it is presented.

Mr. Knox advised additional testimony is not going to help the Board in terms of making its decision; it has already been told what it cannot do; he would be hesitant to let the Board make any decision based upon new evidence that is presented, just as he was in the last case; and that decision was based on the old record which is appropriate. He stated the same thing would be true in this case; there is no place to go; the Board can ask the court to re-open the record, but he does not think the court will listen to it because it will not have jurisdiction at this point. Chairman Cook stated the Board is hemmed in because there is only one option. Commissioner Ellis stated there is another option which he brought up before when they were trying to get zoning for medical offices and there was some quirk in the BU-1-A that would not allow the medical offices, so they had to go to BU-1. He stated the Board can change the BU-1-A to allow medical offices because there seems to be a concern bout other BU-1 uses. Commissioner O?Brien stated that would be going back to change Ordinances to fit the circumstances. Discussion continued on allowing medical office use in BU-1-A.

Commissioner Higgs advised there is BU-1-A to the south, RU-1-11 to the north, and AU adjacent to the property; she does not see clear and compelling evidence that would tell her BU-1 is absolutely the case; so she does not think the Board made a bad decision the first time.

Commissioner O?Brien stated the Board is here to have a public hearing; people came here and want to be heard; and it would be inappropriate not to hear them. Chairman Cook stated the Board will hear the public then address the issue.

Kenneth Steel, 155 Las Palmas, Merritt Island, representing the Merritt Island Presbyterian Church, advised the brief filed by the County dealt only with the 1995 request and its denial; experts were brought by those who opposed the application in 1990; and that information was not referenced in the brief filed by the County. He stated he is not asking for new information or testimony, but the testimony that was given when the zoning was originally established as BU-1-A should have been made a part of the record that the court spoke to. He noted Commissioner Scarborough was the only Commissioner on the Board at that time; they brought testimony from traffic people and a site selection worker for a major chain of establishments; and that information is on record with the County and should have been used as expert testimony. Mr. Steel stated he was a government bureaucrat for 38 years and knows how to read papers and see things that are there; the court?s response spoke of expert testimony of land and planning development consultants; the only expert provided was Mr. Robertson; and he said to the north of the site single-family houses do not access onto Cone Road and they do not take care of the character of the single-family street because they are the rear of the houses with fences. He stated the residences do not face the subject property, they back up to it; he submitted a tape which showed four residences facing Cone Road in the block where this disputed lot is, but the Board chose not to look at all of it on April 24, 1995; and it is a factual error which may or may not have influenced the appeals court in its decision. Mr. Steel stated the case should be re-opened; the testimony given in 1990 should be brought forward so they can be reviewed by the Board; and some action should be taken based on what they already know.

Marie Venice, 513 Seacrest Avenue, Merritt Island, inquired how many times does an opponent have to come back to listen to something that has already been rule on by the Board. She stated in 1990 the Board made a judgment based on expert testimony that came from its staff; and Traffic Management submitted a letter that referenced plans to improve the intersection of Cone Road and South Courtenay Parkway, but those plans did not come to fruition. She expressed concern about the already heavy traffic in the area; stated they submitted traffic counts up to 1988; the zoning category says BU-1 encompasses services to serve the needs of a community; however, there are a multitude of businesses that are allowed in BU-1 that will not enhance or serve the community, but in contrast will cause hazards. Ms. Venice advised South Courtenay Parkway and Cone Road have not been improved since 1990; there has been one turn lane designed to go from South Courtenay west on Cone Road to alleviate a little traffic; but it is now a pass on the right lane while people are waiting at the light. She stated she took offense when she read the opinion that expert witness testimony was not presented when there were residents who lived in the area for many years that spoke; people who live with the traffic congestion are qualified experts; and if the Board has to become a judiciary agent, then it should provide the people with attorneys. She noted in 1990 the residents came armed with information they were told was needed by County staff and the Commission Office; they came prepared to present the evidence; they brought people in opposition and presented petitions to the Board; and she has petitions with 460 signatures to give the Board now from people who are inherently involved in that corner, intersection, and neighborhood. Ms. Venice advised the Appellate Court said the Board erred in denying the rezoning and upholding the binding development plan that was put there for protection; and suggested the Board table the item and allow them to bring back the same evidence the court said they are supposed to present because it is all there in 1990. She noted a panel of judges look at words and does not see the people or dangers involved; and again requested an opportunity to bring back to the Board the evidence it needs. She presented the petitions as part of the record. Mr. Bettin advised for the record he objects to the petitions because the Board is now polling the neighborhood. Chairman Cook advised the Board can accept them as part of the public record because they were submitted by a citizen at a public hearing. Commissioner Scarborough advised the court asked the Board to find factual basis; a petition does not bring factual information to base a conclusion on; and petitions and numbers of people speaking in opposition are not what the court is looking for. Ms. Venice stated the petitions are from people who want the Board to know they are concerned.

Laura Ficker, 479 Falmouth, Merritt Island, advised she is a homeowner and parent of children who go to Tropical Elementary; and she would like to have someone sit out there at 3:15 p.m. to 3:45 p.m. and watch the intersection and tell her there is no concern for the children crossing the road. She requested the Board take another look at the issue.

Commissioner Scarborough stated when there is something involving traffic, it should be incumbent upon the Zoning staff to call upon Traffic Engineering for recommendations; traffic was the primary issue with the Micco item, but Mr. Osborne had not been there until he went with him to see the site; and staff has a lot of expertise that is never called upon. Commissioner Higgs stated the Board never challenged staff to bring that evidence forward, and it should do that from now on. Chairman Cook stated the Board should not do that on every issue and only on issues that would be debated because it does not have enough staff to do every issue.

Mr. Steel advised in April, 1995, he put a tape up for the Board to review; it is not new evidence, but it does show traffic conditions at that corner; and if the Board wants it, he will make it available. Commissioner O?Brien recommended Mr. Steel give it to the Clerk to be kept as part of the record of this public hearing. Chairman Cook stated it will be made part of the record of this meeting.

Mr. Bettin advised to preserve his client?s position, he has to object to any new evidence; and he objects to the tape. He stated on the traffic issue, staff?s report found that the level of services would be adequately protected; and that report was never changed. He stated Mr. Robertson testified at the only public hearing this case was entitled to that there are BU-1-A uses that are as intense or more intense than BU-1 uses, and this request would not be a problem; and there are also comments from Mr. Amari that the site plan, because of the size and shape of the property, can be done to minimize any problems there might be with traffic. He advised the circuit court did not agree that the residents and neighbors were experts; and it went specifically through the evidence that was offered in opposition to the request, and said in each instance it is not competent, not substantial, and not entitled to be relied on. Mr. Bettin advised the trend in Florida is to protect property rights; the Board has seen the Bird/Harris Act and Statutory Taking Act; there are damages involved in those sorts of things; and in this instance, the Board of County Commissioners has a choice, it can try to defend a decision the circuit court said is untenable, or it can do the right thing which is to grant the rezoning that was sought. He stated evidence from 1990 was not evidence at the last hearing; he does not know why it is appropriate that evidence which is five years old should be given more weight than staff?s recommendation and the evidence offered in 1995; so the correct decision is to affirm the request. Mr. Bettin advised they did not attend the P&Z Board meeting because it is was a public hearing process; they already did that; there was a public hearing; the public hearing was closed; and the decision the Board rendered after that public hearing, according to the court, was the wrong decision. He stated the only decision the Board has available is to approve the zoning that was sought.

Commissioner Scarborough inquired if the 1990 materials were incorporated with the 1995 evidence; with Mr. Enos responding no, the old files were not relevant to the new request; however, that does not mean that someone could not bring forward the same information and make it part of the record. He noted they often review the files, but it is not automatic.

Commissioner O?Brien stated that is what got the public upset; there is a substantial record from 1990 that he did not know about until after the hearing; and the contention is that evidence presented in 1990 was substantial and was not brought forward to the Board. He stated perhaps one or two of the reasons used in 1990 may still apply today, but it was never mentioned; there are a lot of people who are concerned, but a lot of people being concerned is not substantial evidence; and if they bring forth traffic counts or identify other serious problems, that could be substantial evidence. He stated petitions let the Board know the number of people who are concerned about an issue, so they have a place in the process. He advised he and Ms. Venice spoke on two occasions since the court appeal came back; John Barnes and he spoke about the same thing; nothing substantial was discussed, but there was conversation about this matter; and he wanted to put that on the record. He noted he heard that evidence presented in 1990 cannot be put in the record for this case because it has nothing to do with what occurred in 1996. Mr. Enos advised in 1990 the request was from AU to BU-1-A with CUP for child care center; that was approved with a binding development plan; the request of 1995 was to change from BU-1-A to BU-1; and since the requests were not the same, staff had to review it on the merits of the new request and not what the old request was.

Commissioner Higgs stated procedurally there were concerns expressed by the court in the first case, so she felt when it came back to determine whether or not to appeal it because of procedural irregularities, the Board could look at it again. She stated given the discussion tonight, she would like to see the Board appeal the court action to allow it to take new evidence.

Motion by Commissioner Higgs, seconded for discussion by Commissioner Scarborough, to appeal the court?s action to allow the Board to take new evidence.

Commissioner Scarborough inquired if the Board can do that at this time; with Mr. Knox responding the court would not have jurisdiction to grant the motion even if he filed it; and the Board can file it and see what happens; but it would probably get a claim that it was frivolous and get charged for attorney?s fees and costs. Commissioner Scarborough advised since the Board does not have options, it does not have the ability to raise that issue and has to follow what the court says; the court cannot tell it what to zone the property, but it only has one option; and the only recourse is to go back and see if it can take more evidence. He stated he is willing to vote for it and give it a try; they are fundamental issues to the way the Board proceeds on these issues; and if it does not expend the time and money on this, it may as well stay home and send notices to people to see the circuit judge for zoning.

Chairman Cook advised what may be different here is the staff recommendation which has been for approval all along; and the County Attorney?s recommendation is that there is very little chance of prevailing on this issue. Commissioner Scarborough inquired if there is anything Mr. Knox can suggest at this time, and where does the Board stand with the court on this matter; with Mr. Knox responding the mandate has been issued, so the court has lost jurisdiction over the matter other than to enforce the mandate which nobody has asked it to do at this time; if the Board does nothing, the attorney for the applicant will be in court tomorrow asking for the mandate to be enforced; and the Board would be told to do it. Commissioner Scarborough inquired if Mr. Knox wants to raise the issue Commissioner Higgs asked for; with Mr. Knox responding this is not the case to do that. Chairman Cook advised all the professional staff is saying this is a problem. Commissioner Scarborough stated the Board may have ample opportunity with the prior case because it raises the issue of the Board?s prerogative to be the zoning board and not a court; and that is going to be a good question for the court to address. Commissioner Higgs stated the only BU-1 on the map is across the street; in previous cases the Board has not moved across physical barriers such as streets to establish zoning; and her common sense says the Board?s original decision was good.

Discussion ensued on the original decision, expert opinions, common sense, and the possibilities of appealing.

Chairman Cook called for a vote on the motion to appeal to the court to re-open the case. Motion did not carry; Commissioner Higgs voted aye; and Commissioners Scarborough, O?Brien, Ellis and Cook voted nay. Commissioner O?Brien inquired who is the applicant and who owns the property; with Dwayne Watson responding ABC Ventures, Inc. was a subsidiary of American Bank Corporation; it sold the bank to First United; and now the property is owned by the employees of the former American Bank and Dorothy Adams is the Trustee. He stated it was going to be a branch bank in the future, but they sold the bank, and this is one of the properties left over that they want to sell. He stated the stockholders of the American Bank Corporation are the employees of the former American Bank.

Anthony Garganese advised Dorothy Adams, Trustee, is vested with all the rights as successor in interest, so she has all the rights as the initial applicant. Commissioner Higgs inquired about the medical building; with Mr. Garganese responding that was in the previous hearing, and he does not know if that is still the plan.

Commissioner Ellis advised the Board needs to look at the parameters of the BU-1-A zoning classification; and it is too late for this application, but it may have prevented this whole issue from taking place when the original application came in for a medical building a year ago.

Mr. Steel requested permission tp speak. Chairman Cook advised the Board cannot take further public comment unless there is a motion.

Motion by Commissioner Ellis, seconded by Commissioner O?Brien, to accept more public comment. Motion carried and ordered unanimously.

Kenneth Steel advised the 1990 application was for change from AU to BU-1 for a convenience store on that corner; and because of traffic problems, the Board decided a convenience store does not belong there, so it changed the property to BU-1-A. He stated it was not an application for BU-1-A, it was for BU-1 which was denied and BU-1-A substituted. Marie Venice stated in 1990 it was BU-1 for a 7/11 store; Mr. Spielvogel came in with beautiful plans for the store and was met with opposition; they met for days in Merritt Island Church to work out an amicable solution; and the solution was BU-1-A with a BDP that prohibited the sale of alcohol, gasoline, and convenience stores; then they asked for the CUP to build a child care center. She stated their opposition is to keep the BDP intact to give the residents security; and they were assured by County staff the records would come forward, which is why in 1995 they did not give it to the Board again. Discussion continued on the 1990 records not being made available to the Commissioners, the contents of those records, and a 1995 letter from Ms. Venice. Mr. Enos advised in 1995 there was a two-part action; there was action on the request for a mixed use district expansion and on the rezoning to BU-1; Todd Corwin was the staff person who dealt with the MUD expansion; and he does not know what Mr. Corwin discussed with Ms. Venice. Commissioner Ellis stated it would not matter because the Board voted no anyway; and even if it had all that information, it would have still voted no. He stated what was not understood is that everything used to make that decision needed to be entered as part of the public record no matter what; that was not realized a year ago; and he did the same thing with the Valkaria Airport industrial property. He stated he reviewed older records to get the history of how it came to be, but did not enter them physically in the record.

Commissioner O?Brien advised there was a mistake made, but the County Attorney advised that the Board does not have a good case to fight; so although he does not like it, there is only one option.

Motion by Commissioner O?Brien, seconded by Commissioner Cook, to approve Item 16, ABC Ventures, Inc.?s request for change from BU-1-A with CUP for child care center and BDP to BU-1 and removal of the CUP for child care center and the BDP.

The Board continued to discuss appealing the issue, wasting taxpayers money, making tough decisions, and the original decision being correct but done incorrectly.

Commissioner Higgs advised the first decision was correct; there may not be success to appeal the issue, but it is a decision the Board can make; so she will not support the motion.

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

DISCUSSION, RE: DRAFT POLICY ON ?SNYDER? REVIEW FOR REZONING REQUESTS AND RELATED CODE CHANGES

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to table discussion on a draft policy on Snyder Review for Rezoning Requests and Related Code Changes until April 16, 1996. Motion carried and ordered unanimously.

CHANGE ORDERS 3 AND 4 TO AGREEMENT WITH SATURN BUILDERS OF BREVARD, INC., RE: CAN-AM NORTH TITUSVILLE GARDENS CONSTRUCTION PROJECT

Motion by Commissioner Ellis, seconded by Commissioner Higgs, to approve Change Orders 3 and 4 to Agreement with Saturn Builders of Brevard, Inc., extending completion dates for the CAN-AM North Titusville Gardens Construction Project.

Assistant County Manager Joan Madden advised the Board voted not to extend the dollars in the contract; they did a walk through yesterday; final approval of 12 units will be tomorrow; and staff wants to keep the fences tight around this contract and bring it to completion. She stated it sets the final date for completion of the last eight fire-damaged units is April 15, 1996.

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

Upon motion and vote, the meeting adjourned at 10:25 p.m.

MARK COOK, CHAIRMAN

BOARD OF COUNTY COMMISSIONERS

BREVARD COUNTY, FLORIDA

ATTEST:

SANDY CRAWFORD, CLERK

(S E A L)