Attendee Name	Title	Status	Arrived
Robin Fisher	Chairman / Commissioner District 1	Present
Chuck Nelson	Commissioner District 2	Present
Trudie Infantini	Commissioner District 3	Present
Mary Bolin	Commissioner District 4	Present
Andy Anderson	Vice Chairman / Commissioner District 5	Present

 

The Board of County Commissioners acts as a Quasi Judicial body when it hears requests for rezonings and Conditional Use Permits.  Applicants must provide competent substantial evidence establishing facts, or expert witness testimony showing that the request meets the Zoning Code and the Comprehensive Plan criteria.  Opponents must also testify as to facts, or provide expert testimony; whether they like, or dislike, a request is not competent evidence.  The Board must then decide whether the evidence demonstrates consistency and compatibility with the Comprehensive Plan and the existing rules in the Zoning Ordinance, property adjacent to the property to be rezoned, and the actual development of the surrounding area.  The Board cannot consider speculation, non-expert opinion testimony, or poll the audience by asking those in favor or opposed to stand up or raise their hands.  If a Commissioner has had communications regarding a rezoning or Conditional Use Permit request before the Board, the Commissioner must disclose the subject of the communication and the identity of the person, group, or entity, with whom the communication took place before the Board takes action on the request.  Likewise, if a Commissioner has made a site visit, inspection, or investigation, the Commissioner must disclose that fact before the Board takes action on the request.  Each applicant is allowed a total of 15 minutes to present their request unless the time is extended by a majority vote of the Board.  The applicant may reserve any portion of the 15 minutes for rebuttal.  Other speakers are allowed five minutes to speak.  Speakers may not pass their time to someone else in order to give that person more time to speak.

 

 

 

The invocation was given by Pastor T. J. Buckingham of Calvary Chapel in Melbourne.

 

 

 

Chairman Fisher led the assembly in the Pledge of Allegiance.

 

 

 

Chairman Fisher read aloud a resolution congratulating the Keegan Dance Company (KDC).

 

The Board adopted Resolution No. 11-154, congratulating Keegan Dance Company (KDC); and wished them continued success as they strive to perfect their performance.

 

 

Heather Southwell, Director of Keegan Dance Company (KDC), expressed her appreciation to the Board for the Resolution; stated KDC feels very lucky to be recognized in such a way; it is a big honor for them, and they feel they represent the Board all over Florida; and they hope to have more successes in the future.

 

 

 

 

Commissioner Infantini read aloud a resolution recognizing Stuti Mishra as Scripps National Spelling Bee Semi-Finalist.

 

The Board adopted Resolution No. 11-155, recognizing Stuti Mishra as the 2011 Scripps National Spelling Bee Semi-Finalist; and wished her much success and many accomplishments in the future.

 

 

Stuti Mishra expressed her appreciation to the Board for the Resolution; stated she loves spelling; she has worked hard to get to the national level; and it has been an honor to represent Brevard County.

 

 

 

 

Mel Scott, Assistant County Manager, announced Paul Davis, who was a Building Inspector in the Planning and Development Department for 18 years, passed away in his sleep last night, at age 66.  He stated Paul was hired by Brevard County in August 1992 as a Building Inspector after retiring as a Building Official for the City of Titusville; and he had been promoted over the years, achieving the position of Building Inspector III, which is a lead position.  He noted Paul had building inspector certifications of all the trades, including building and coastal construction, commercial/electrical, mechanical, plumbing, and residential electric; his expertise was unsurpassed in the Department; he was a valued resource for his technical knowledge; and his personnel file is filled with commendations from local builders.  He stated Paul's sense of civic duty led him to volunteer for damage assessment duty in Homestead following Hurricane Andrew in 1992, and in Bay County following Hurricane Opal in 1995; and Paul had a distinguished military career in the Navy and then the Navy Reserves, retiring as a Chief Petty Officer.  He stated Paul leaves behind a wife, Debbie, daughter, Jennifer, and five grandchildren; his passing leaves a huge void in the Planning and Development Department; and he will be greatly missed by his co-workers and local building contractors.

 

 

 

Commissioner Infantini stated moving forward, the Board needs to make a pledge that it will not attack members of the public when they speak before it; and that it will listen with professionalism, integrity, and ethics.  She stated the display that was shown at Tuesday's meeting was awful and appalling; she has received calls and emails about it; and she would like to not see it repeated in the future.

 

 

 

Chairman Fisher called for  called for a public hearing to consider tabled items of March 3, 2011 and May 26, 2011 Board of County Commissioners Meetings, as follows:

 

 

Cynthia Fox, Planning & Zoning Enforcement Manager, stated the request is for a Conditional Use Permit for a 192-foot communications tower designed to be a flagpole and accessory equipment on a smaller parcel; as part of the request, the applicants are proposing waivers to the required setbacks; the proposed location of the tower has been selected to not encumber future use of the property; and the nearest single-family residence is approximately 1,700 feet away. 

 

There being no objections, the Board approved the Conditional Use Permit (CUP) for Towers and Antennas in a PUD Zoning Classification, with waivers to setbacks with all property lines, on 0.2754 acre or 12,000 square feet +/-, as recommended by the Planning and Zoning Board.

 

MOVER:            Mary Bolin, Commissioner District 4

SECONDER:     Andy Anderson, Vice Chairman / Commissioner District 5

AYES:                Fisher, Nelson, Infantini, Bolin, Anderson

 

 

 

Chairman Fisher called for a public hearing to consider Planning and Zoning Board recommendations of July 11, 2011, and Port St. John Board recommendations of July 6, 2011, as follows:

 

 

Cynthia Fox, Planning and Zoning Enforcement Manager, stated the item is a request for a CUP for the on-premises consumption of beer and wine, accessory to a nail salon, with a two-drink per-person maximum; the nail salon is part of a multi-tenant building; there are other CUP's that have been approved in the area, one of which is at Carabba's Restaurant; and stated the Board may wish to limit approval as an accessory to the nail salon and with the two-drink maximum specified by the applicants.

 

Yeannie Andrade stated she is requesting approval to be able to serve a minimum of two drinks to the salons patrons; the salon will book parties, such as bridal showers; and the drinks would only be served to patrons receiving a service.

 

Chairman Fisher inquired if it is a two-drink minimum or two-drink maximum.  Ms. Andrade advised a two-drink maximum. 

 

Commissioner Nelson expressed his appreciation to the applicant for doing the right thing, because there are existing businesses that are probably doing something similar that have not actually gone through the process; and he thanked applicant for setting a standard to follow.

There being no further comments or objections, the Board approved the request for a CUP for alcoholic beverages (beer and wine only) for on-premises consumption, in conjunction with a nail salon, in a BU-1 zoning classification, on 0.46 acre, as recommended by the Planning and Zoning Board. 

 

MOVER:            Mary Bolin, Commissioner District 4

SECONDER:     Andy Anderson, Vice Chairman / Commissioner District 5

AYES:                Fisher, Nelson, Infantini, Bolin, Anderson

 

 

 

Cynthia Fox, Planning and Zoning Enforcement Manager, stated the request is for a rezoning from the AU zoning classification to the AGR zoning classification, to allow the applicants to place a mobile home on the property.  

The Board approved the request to change from AU to AGR on 10.54 acres, as recommended by the Planning and Zoning Board.

 

MOVER:            Andy Anderson, Vice Chairman / Commissioner District 5

SECONDER:     Chuck Nelson, Commissioner District 2

AYES:                Fisher, Nelson, Infantini, Bolin, Anderson

 

 

 

Cynthia Fox, Planning and Zoning Enforcement Manager, stated the item is a request to unify the zoning classification from IU-1 and IU to all IU-1, and to obtain corresponding CUP's for Arsenals and Explosives, and Large Scale Outdoor Entertainment Amusement Enterprises to accommodate current and future uses of the property.

 

Commissioner's Bolin and Infantini advised they previously spoke with Mr. Knight.  Commissioner Nelson noted he also spoke with Mr. Knight and his representatives, as well as Sandra Clinger and Joanne Salvail. 

 

Kimberly Rezanka, Attorney for Dean Mead representing Knight Enterprises, LLC, stated Knight Enterprises first came before the Board on April 30, 2002; they are now seeking three development orders on 408.83 acres of the original 454 acres; and there is a 300-foot buffer along State Road 405 that has been in place since 1982, which will not be disturbed.  She went on to say the western portion of the property was first zoned for arsenals and explosives with a special use, and at that point it was just light industrial; back in 1966, it was the sight of McDonnell Douglas's building for testing of Tomahawk Missiles; and there is a historical use to the property that Mr. Knight relied upon when he purchased the property in 2002.  She added, the survey shows Tracts A and B; Tract B is the eastern portion that consists of 168.45 acres; it is already zoned heavy industrial with a CUP for Arsenals and Explosives; and the only thing they are asking for there is the CUP for Large-Scale Commercial Entertainment and Amusement Enterprises.  She stated on Tract B there is a firing range that is labeled as No. 1 on the diagram before the Board; it is a short firing range that shoots from west to east, and it shoots the 50 caliber guns; and that is properly zoned for heavy industrial with a CUP for Arsenals and Explosives.  She explained Tract A is currently zoned light industrial; it is the western portion consisting of 242.3 acres, and it is the Tract which they are requesting the rezoning from light industrial to heavy industrial, along with a CUP for Arsenals and Explosives and a CUP for the large-scale entertainment; and the large-scale entertainment is for a museum of up to 150,000 square feet and outdoor displays.  She stated on Tract A, there is the 100-meter test firing range which shoots from north to south; they only shoot the 308's and lesser calibers at that site; and noted all around the property is the TICO Airport to the east and south, an industrial park to the west, and commercial and industrial uses to the north, along with a major highway.  She went on to state the reason they are before the Board today for a CUP for Arsenals and Explosives on Tract A is because the Sheriff's Office currently has two bunkers they use to store arsenals for their bomb squad.  She stated Knight Enterprises has continually asserted they do not need a CUP to continue the firing of the weapons; they do manufacturing inside, and they test the weapons outside; Section 790.33 of the Florida Statutes pre-empts the whole field of regulations of firearms and ammunition; the County may not regulate the use of firearms even based upon concerns of health, safety, and welfare of its citizens; they may regulate the noise; but the Board will hear from Code Enforcement Officers that Knight's has never violated the noise code set by the County.  She added, the zoning request for arsenals and explosives is not about the sound of gunfire; she knows that is the complaint the Board has heard, as she has seen the emails, documents, and public records; and at the Planning and Zoning Board meeting, that is all the speakers complained of; however, they had no facts or data to support their complaints.  She went on to say the only facts and data before the Board is what is in the record.  She stated back in June of this year, there were Code Enforcement measurements of sound level readings, and the highest measurement that was ever taken of gunfire was 57.5; the allowable level is 75 decibels from 7:00 a.m. to 10:00 p.m.; the cars, airplanes, and motorcycles registered as high as 81.8; and that can be confirmed by Bobby Bowen, Code Enforcement Manager.  She stated the Board will probably be asked tonight to hear audio recordings; she asked the Board not consider them because they are not competent and substantial evidence; and in order for them to be competent and substantial evidence, there would need to be authentication as to the method of the records, the times of the recordings, the equipment being used to play it back, and even that the gunfire was at Knight's.  She explained there are other places in the County near Knight's that has gunfire, including the borrow pit, TICO Airport, where the Gryphon Security Group does training, and the Titusville Police Department also does firings; there have been complaints on Saturdays, but Knight's does not fire on Saturday, only Monday through Friday 8:00 a.m. to 3:30 p.m.; and they could, under the decibal level, fire seven days a week from 7:00 a.m. to 10:00 p.m.  She stated Mr. Knight and many of his staff have met with many of the complainants; at the Planning and Zoning meeting there were five speakers who testified and complained about the noise; and there were also five property owners who lived closer than the complainants who said the noise did not bother them.  She stated Mr. Knight and his staff met with the complainants June 29th, and June 21st with Barry and Sandra Clinger and their acoustical expert; Mr. Knight agreed to cooperate with the expert's independent sound test and even agreed to pay for sound reduction measures suggested by the expert after they do their own testing, of up to $50,000; and to her knowledge, neither the Clinger's nor the expert has contacted Mr. Knight or any of his staff since that meeting on June 21st.  She went on to say Knight's meets all of the County Ordinances and zoning standards, CUP standards are met, they meet the current noise standards, the use they are requesting is compatible with the uses in the area, and the historical use of this property supports the rezoning to heavy industrial and Arsenals and Explosives CUP.  She stated Mr. Knight will tell the Board more about his company, and Mr. McClain will tell the Board about his work as a curator, the museum, and the outdoor displays.

 

C. Reed Knight, Jr. stated he started Knight's Armament Company in 1976 as a small research and development company; in 1980 he grew the company to six employees, doing mostly from 1980 to 1990 counter-terrorist work for the U.S. Government; on September 11th, the Government asked them to increase their capacity for the work they were doing; he went to Indian River County and attempted to increase the size of their facility, but the red tape was too cumbersome; and he had gotten a bid from Savannah, Georgia that if he went there with his 110 employees, they would give them a key to a 2,000 square-foot building.  He went on to say Lynda Weatherman, with the EDC, knew of the property that had been left vacant by McDonnell Douglas and she contacted them after reading about it in the paper, and facilitated Boeing, Governor Jeb Bush, and himself, coming together and making a deal; and the deal was consummated in two weeks.  He added, 90 percent of the work they do is military contracts; they do mostly firearms and firearms equipment for the U. S. Military; they need the CUP's to unify the property to make it all one zoning and one unified piece of property; they also need the CUP for the new museum they would like to build in Brevard County; and he introduced Joe McClain, who is the curator.

 

Joe McClain stated he did his homework on building a museum; the corridor here is phenomenal; there is a chance to make this a good corridor; he has people who have contacted him, already recognizing they are going through the zoning and then building a museum, who want to have national conventions in Brevard County; the military vehicle club he is supposed to talk to next week, the Navy League, has also contacted him, along with several other groups; and they are moving along faster than what they should.  He added, until they get a building they cannot do it.  He went on to say he is excited to be here because this is a lifetime dream of his to be part of the Board's system, going out to Cape Canaveral, the Port, everything around here, the number of people who visit this area are the highest in the Orlando area, and they can draw a lot of that.  He stated they are looking at a large museum, the largest Veteran groups are here in Florida, and that makes this very important to show history.

 

Commander Greg Purden, Brevard County Sheriff's Office (BCSO), stated Sheriff Parker asked him to come this evening and relate to the Board its ongoing relationship with Knight Enterprises and Mr. Knight.  He stated as a former SWAT Team Commander for 19 years in the County, he knows firsthand the great relationship they have with Mr. Knight and his employees; the BCSO has held countless training venues at this site; he has been very gracious to host many of the Region V Anti-terrorism Task Force training venues at this facility; and they are fortunate to use some of his secure munitions bunkers at the facility to house some high-value assets.  He added, they have even had the Sheriff's helicopters there to protect them from storms; and even with the facility the Sheriff has in Merritt Island, which is a great facility, it is wise to spread assets around in a hurricane situation.  He stated the Sheriff realizes this is an important issue for the community and for Mr. Knight; he is only there to reiterate the Sheriff has a great working relationship with him; and he is sure Mr. Knight and his staff will continue to work diligently with the community on this issue.

 

Chairman Fisher stated Ms. Rezanka made a comment about regulating gunfire; and inquired the County Attorney would address that. 

 

Morris Richardson, Assistant County Attorney, advised there is State Law which largely preempts local regulation of firearms and ammunition; and basically, at the County level, it cannot touch it.  He stated the Board will hear a lot tonight about gunfire, firearms, and related noise; other than the performance standards in the Ordinance, the decibel levels that cannot be exceeded, the County cannot really touch that; what is being dealt with tonight is the request that the portion of the property that is IU be converted to IU-1, which would be the same as the remainder of the property; one CUP has to do with the Sheriff's use of the property for the activities the Board just heard explained, and the other CUP is related to the museum activities; and in no way does granting the CUP's have anything to do with the existing gunfire.  He went on to add, on the portion of the property that is zoned IU, there is a current notice of violation because some of the activities on that portion of the property were happening outdoors, and on light industrial under the Zoning Code, all activities must be indoors; so going from IU to IU-1 would bless those outdoor activities that already occur there, including a testing range; but if that zoning is not granted, the testing does not go away, it just moves to another portion of the property, and the manufacturing has to happen indoors, but the testing they are doing is not manufacturing at that point; and that could very likely happen outdoors, regardless.  He explained the issues before the Board tonight are not about the nuisance and noise issues, which are Code Enforcement issues to the extent they exceed acceptable noise standards; the issues are whether IU-1 is compatible and consistent with the surrounding properties; and whether the CUP's for the Sheriff's activities and museum should be granted.

 

Connie Pontius stated she has been a Brevard County resident for 22 years; she and her husband do not want to live in an area where the daily sound of repetitive gunfire is considered normal; they are glad that Knight's is providing jobs and helping the military; a museum would be great, as Mr. Knight has a impressive collection of historical significance; but Knights needs to be in compliance with Brevard County Code, including a limit of 75 decibels.  She stated the rezoning review worksheet says, "The current zoning approvals do not cover these uses on the property", which is testing, providing detonation facilities for explosives, and the museum and reenactment.  She stated the first sentence says, "The applicant is a manufacturer of firearms and firearm parts which requires testing of their products prior to sale."  She went on to say the last sentence says, "Current zoning does not cover these uses."  She went on to add, currently Knight's has three open-air ranges, and she is against any zoning change that allows any open air shooting ranges with no sound abatement, which is the real problem; if it can be easily heard over two miles away at her house, it must not be 75 decibels; and she is also against any reenactment involving large infantry or weapons.  She explained it is ignorant for people to say that those affected by the gunfire should not be home during the regular workweek; people who are home during the regular workweek are shift workers, retirees, those who work at home, and college students; her own college student was studying for finals and the gunfire was so bad that he had to leave; fathers, mothers, and children, those who are battling illness, and job seekers are also home during the week; it is ridiculous to say that people should stay inside, that people just need to get used to the gunfire, that some people seem to be more sensitive to sound, and they are not willing to sacrifice a little bit of discomfort; and stated those are all ignorant statements.  She added, the difference between when they are shooting and when they quit is a huge dramatic difference; and comparing it to night and day is an understatement.  She stated a museum would be great, but not until a binding sound abatement plan is in place; and asked the Board to please deny all other zoning requests.  She distributed handouts to the Board.  She concluded by playing a 20-second video recording from her back yard for the Board to consider.

 

Ms. Rezanka objected to the video being played.  Attorney Richardson advised it is a quasi judicial hearing and it is up to the Board if it views the recording.  Commissioner Anderson inquired if the Board had any authority regarding regulating the gunfire.  Attorney Richardson advised the County has virtually no authority over manufacturing use, storage, or testing of firearms, other than to tell them where to do this in general broad terms; and they are already in the right zoning category of industrial to do that.  Commissioner Anderson inquired if the recording Ms. Pontius wanted to present is not substantial evidence, and would have no play in the findings of fact.  Attorney Richardson stated it may go to consistency or compatibility with the neighborhood, but his advice would be to view the evidence and then give it the according weight when the Board makes its judgment.

 

Robert White, Jr. stated he has been on his property since 1980, long before Knight's and many other manufacturers; when he bought the property he was looking for a nice quiet residential rural neighborhood, which Windover Farms offered; the only noise they were aware of was the airport and Space Center; and when McDonnell Douglas was there, they made no noises that bothered them.  He went on to say Knight's does not fire every day; he is not against Knight's; and Knight's has not spent one cent to abate the noise of firearms; the guns are out in the open and fired; people who live on the east side hear less because there is kind of an embankment there to break the sound; but for those of them on the west side, the noise is louder.  He added the meetings have been meaningless; he thinks Knight's talks the talk but does not walk the walk; it is not a responsible company; and there should be a condition on the permit that attempts to reduce the noise.

 

Peggy White stated she has been annoyed more often than not with the noise at her home; she had not heard until today any effort to spend or do anything to provide some abatement of the noise; and she would like to give her time to the expert.

 

Napoleon Salvail distributed handouts to the Board.  Chairman Fisher inquired if Mr. Salvail was part of the group who met with Mr. Knight in reference to doing some noise abatement and agreeing to spend $50,000.  Mr. Salvail advised he wanted to be at that meeting, but he was unable to be there.

 

Mr. Salvail stated he has lived in Windover Farms for 25 years; and he is here as a homeowner and neighbor in the community adjacent to Knight's.  He went on to say what is before the Board is to have a museum and outdoor activities; he has not heard anyone object to that, as that it is not an issue; the larger problem is the firing ranges; part of the rezoning is changing the property from IU to IU-1; and it is his feeling that he did not want the Board to buy into something like that until it had the opportunity to be sure the range has been sited and zoned properly.  He stated the only people who have measured the sound have been County staff; he has not heard any evidence that Mr. Knight has hired an acoustic person to come in and take measurements; and if he had done that, he would know what the problem is.  He explained as a result of the noise issue, people walked around the community about a month ago and accumulated over 100 signatures; nine out of 10 people he talked to realized the problem; they are not saying it is something that happens every day; it could go on for 10 minutes, or it could go on for four hours; and that is what makes it annoying.  He advised they had a petition entitled, "Homeowners for Reasonable Noise Abatement", which expressed their view; they are not talking about closing anyone down; but they are just talking about spending some money to do what is necessary to get the sound levels down to where people do not have to listen to it.  He read aloud the petition.  He inquired if Knight has lived up to their responsibilities to the surrounding communities; and inquired why Knight's has not built an indoor facility as they indicated in their original zoning application.  He stated at the meeting in June the residents had the opportunity to learn about the firing ranges, and Mr. Knight did mention they had looked at an indoor firing range, but they had some issues with the size of the blowers because there are a lot of gases that have to be controlled, so there has to be a pretty good size ventilation system to do this; and apparently, as a result of their analysis, they came to the conclusion it was either too expensive, or some other reason.  He stated the situation has evolved in various ways; it should be obvious to the Board that Knight's did not build or equip an indoor facility, instead, without approval and without consideration of the surrounding communities, they built several outdoor firing ranges using tables in the open air with no noise mitigation other than surrounding vegetation; when the County received complaints of noise, they investigated using Section 22-71, which calls again for an A-weighted, slow response; and when they use that criteria, which he believes was never intended to address gunfire, it was intended for equipment, something more or less continuous that might have spikes that could be averaged out.  He explained the explanation for the noise measurement discrepancies is pretty simple; he has a cheap analogue meter to measure decibels; and the other item he has is a children's toy that clicks.

 

Ms. Rezanka objected and asked that the testimony not be accepted.  Mr. Richardson advised that it is the Board's discretion; it is not bound by formal rules of evidence; the objection is made and preserved for the record; but the Board can hear the evidence and give it the appropriate weight when it makes its judgment. 

 

Mr. Salvail stated the meter is set at A-weighted, slow response; if a person clicks it, he or she will see the needle move up; it would read to be 72 to 74 decibels; the meter has a hold button he can push that gives him the peak reading; he has to go up to 100 decibels; and it reads 100 decibels for a little toy clicker.  He stated as long as Knight's Armament takes the position it has been taking, that they are doing nothing to violate the peacefulness of the surrounding communities, nothing will be done to resolve the issues. He stated he recognizes the difficulty in this decision, but he asks the Board to stand up for what is right.

 

Nancy Jackson stated she lives a mile and one-third from Knight's Armament; she was present a few months ago and spoke for the very first time in front of a group like this; it came from her heart; and she does not have the expertise that the other people do.  She went on to say she and her husband built their house six years ago; the house is on a wildlife preserve; she has no neighbors behind her; she has no neighbors to her left; and it is total peace, which they call their sanctuary.  She advised the sanctuary they named their house is no longer a sanctuary; they do not have the peace and quiet they anticipated; it is very disturbing because it was their dream; if someone has enough money to build a 150,000 square-foot museum, a person should have enough money to be a good neighbor; and that is all the residents are asking. 

 

Cliff Repperger, Attorney with Gray Robinson, representing Sandra Clinger, stated Ms. Clinger is a resident of the Windover Farms Subdivision in opposition to the applicant’s proposal tonight; he is also being funded by others in that neighborhood; but primarily he represents Ms. Clinger.  He went on to say the Clingers appreciate and recognize the importance of the 2nd Amendment, the services the applicant provides with regard to the 2nd Amendment, and the economic benefit of the applicant and what they provide to the community; they generally have no objection to Knight's services, nor do they object to the CUP's for the large-scale entertainment and amusement enterprises; but what they do have a problem with is that there is a significant problem related to this business activity in terms of the outdoor testing.  He stated they believe part of the rezoning application going from the light industrial to the heavy industrial is absolutely necessary for the outdoor testing activities; as Attorney Richardson made reference to, those activities in light industrial provide for indoor activities; and the testing that is being done on the particular parcel that is being asked for rezoning is being conducted outside.  He advised the application in front of the Board is partially a result of the Code Enforcement action for which that activity was cited; it is important that Knight's is addressing the outdoor firing as part of the rezoning application; it is not entirely clear, and as a matter of fact, it seems to be the opposite of that; and in reality what is really at issue is the test firing.  He stated as Ms. Rezanka alluded to, Knight's has not been found in violation of the Ordinance; the problem with that is that the County's Noise Ordinance is flawed with regard to impulse noise related to testing; the Board will hear a little bit about that from Gary Siebein who is an acoustical engineer with Siebein and Associates, and a Professor at the University of Florida.  He went on to say what Mr. Siebein is going to testify to is the fact that based on modeling, this type of impulse noise does trip the County thresholds in terms of what its appropriate decibel levels are in residential neighborhoods; and what is clear is that the County does have an industrial facility that is basically surrounded by residential to the west and to the north.   He added, addressing some misconceptions, Commissioner Anderson made reference to not being able to regulate gunfire, but the Board can regulate gunfire; the Board can with do that within its zoning classifications just like it has any other business in industrial zoning; it can place whatever restrictions that would be on any other business in those zoning classifications that would apply across-the-board to all of those businesses; the Board can also regulate performance standards; and the Ordinance does apply to the applicant.  He went on to say, if it is flawed, what happens is a situation where the residents are not protected; there is clearly a problem that cannot be addressed once the zoning goes through; and there is no way to test for it, no way to find them in violation of any Ordinance because the Ordinance is flawed.  He explained what Ms. Rezanka said today about the June meeting with his client and her client in terms of what was agreed to is of great surprise to them and great delight to them; they are ecstatic to hear Knight's are willing to expend up to $50,000 to provide for some type of mitigation related to the noise problems the residents are suffering related to this approval; they absolutely wanted to avail themselves of that offer; and they insist the Board holds the applicant to that promise to make those mitigation efforts here tonight.

 

Commissioner Infantini stated Mr. Repperger said the County's Ordinance is flawed; the other gentleman did a good job in explaining how the County does its testing, it does not seem to address the potential peaks; but, if in fact the County has a rule in place that said the County will test and make an average, perhaps Knight's is in compliance with the rules.  She added Mr. Reppererger is continuously saying the rule is flawed; and it would be difficult to find somebody doing something wrong if they are following the rule as it exists. 

 

Mr. Repperger stated the method of testing is flawed as it would be applied to this activity; and added the point being, if there is a noise ordinance and its purpose in the performance standards is to protect the residential classifications, and they do not properly measure the noise that this facility is generating, then there are unprotected residents; and there is no way to determine if this facility is violating or not violating those performance standards.  He advised there is a way to measure it, but the measurement is flawed as to this particular facility and use. 

 

Commissioner Infantini responded Mr. Repperger would not want to retroactively implement a rule if he went into business based on a flawed rule; it is the County's problem to have a flawed rule, and going forward it would want everyone thereafter to have to follow the new rule; but she is unsure how to make someone correct their behavior when they are following the rule as it stands.  She added going forward she agrees, and perhaps the measurements need to be changed. 

 

Mr. Repperger stated Mr. Knight is asking for a rezoning, and what he and his clients are asking for is that the Board ask the applicant to agree to a binding development plan, or any other conditions that it can place on this particular applicant that would mitigate the activity they seek to conduct on the property for the rezoning in order to protect the residents, because the noise ordinance does not. 

 

Commissioner Anderson inquired what the legislation is on the Board's ability to regulate gunfire in general.  Mr. Richardson stated because it is firearms, it really complicates the issue; but Mr. Repperger stated that there are no objections to the Conditional Use Permits, as they have nothing to do with the testing, but what remains is the zoning issue, and he the way he reads the law and preemption, the Board cannot do anything specifically directed at firearms; and his advice to the Board is going to be that it has to determine whether IU-1, which is the heavy industrial zoning, is consistent and compatible with the surrounding neighborhood, not whether firearms or Knight's testing is consistent and compatible, but whether IU-1 is.  He added it may be Knight Enterprises, LLC today, but tomorrow it could be some other company with IU-1 uses; think of it as whether or not it fits with the character of that area, and do not focus on firearms, because it is prohibited.  He added the Board cannot tell Mr. Knight he can only fire at certain times, or how to fire, or where to fire; but it can regulate the zoning of the property generally. 

 

Mr. Repperger stated he believes that firearms can be addressed, and read aloud what the law provides in Chapter 2011.109; "Zoning ordinances that encompass firearm businesses, as well as other businesses, that is an exemption, except that zoning ordinances that are designed for the purpose of restricting of prohibiting the sale, purchase, transfer, or manufacture of firearms or ammunition as a method of regulating firearms or ammunition are in conflict with this subsection are prohibited".  He stated the Board is not trying to pass any kind of resolution, ordinance, or legislation restricting or regulating firearms as an industry, it is only looking at the Zoning Code. He added what he is telling the Board is, the activities that are being conducted there are tripping the noise thresholds. 

 

Commissioner Anderson inquired because of the noise activity and the adjacent properties that are already IU-1, he considers it consistent, unless Mr. Repperger proves to him otherwise.  He added he is not worried about gunfire or jets; and stated Mr. Repperger needs to convince him that it is not consistent; and the Board has to do this correctly, otherwise, Mr. Knight will drag the taxpayers through a lengthy court battle, which the County will lose. 

 

Mr. Repperger stated his clients are not necessarily looking for the Board to deny what the applicant is looking for; but they are looking for the Board to look to the applicant and ask that a problem be resolved. 

 

Commissioner Bolin stated there was a meeting on June 21, 2011, and the main client was in attendance with Knight's; and based on the discussion there was going to be an expert come and do testing.  She added that was on June 21, 2011; and inquired why has the second meeting not occurred to solve this when Knight Enterprises offered that $50,000.   

 

Mr. Repperger stated his client would disagree with the fact that the offer was actually made; his client has advised him that there was an offer of testing, but the dates kept changing, and that they did consult with a prior acoustical engineer, but that it was never formalized with Knight Enterprises, LLC. 

 

Commissioner Nelson stated there is a portion of the property already zoned appropriately that gunfire has been allowed; and even if Mr. Repperger wins his argument, they could move the range over to the other side. 

 

Mr. Repperger stated what his client is saying is do not exacerbate the problem, and do not allow them to have a rezoning on that area to conduct that activity, especially when it is more westerly. 

 

Commissioner Nelson stated that only works for one part of the community if it is moved.  Mr. Repperger responded all he can say is that it is their rezoning request, and they are asking for that activity on that area of the property; and all his client is saying is that there is already a problem, and he does not want to make it worse.  He added the Board is not restricting how many ranges they can put out there, they could put another couple ranges out there; and he does not know how their activity is conducted, but the Board would be essentially giving license over another area as well.

 

Commissioner Nelson stated there is already a piece that can be used for that purpose, and the Board has no ability to change tonight; and the question is if Mr. Knight is going to change the zoning on the other piece, which would fix a problem that they already have, which is that they are firing in an area that they are not currently allowed, but it does not necessarily fix the noise problem.  Mr. Repperger stated it is hard for him to answer that question, because he is unaware as to how their facilities are set up; and he does not know what they can do as far as moving the other range back to the first parcel or not. 

 

Ms. Rezanka inquired if Mr. Repperger is also representing Ms. Pontius.  Ms. Pontius stated no, he is not.  Ms. Rezanka further inquired what Mr. Repperger is considering the neighborhood, how far must the Board protect in his definition of a neighborhood.  Mr. Repperger stated he could identify on a map what the neighborhoods are, and for the purpose of his client it is Windover Farms, and she lives approximately a mile and one half away. 

 

Gary Siebein stated his firm was founded in 1981, and has worked on about 1,400 acoustical projects in Florida, across the United States, and around the world; he specializes in firearms noise and has worked with many branches of the US Military, as well as federal, state, and local law enforcement agencies; and his firm also does work at the Space Center.  He stated he has also been a professor at the University of Florida for 30 years, where he directs a graduate program where people can get master’s and doctoral degrees in building and environmental acoustics; and he has written several books and papers on acoustics.  He advised his company conducts environmental acoustic assessments of weapons training complexes and indoor/outdoor firing ranges; and they do computer modeling using both federal and proprietary noise predictive programs; and he has worked with many communities to help them come up with scientifically based noise ordinances that are enforceable and pertain to the soundscapes of the local communities.  He stated his company worked with Camp Hanson, which was concerned about noise impacts off base in Okinawa, Japan; at Camp Peary, in Virginia, his company looked at noise propagating out of closed ranges, and looked for noise mitigation for sounds to come out of quasi open air facilities; and for another company that makes pre-fabricated range enclosures for embassy's so that enemies cannot tell what type of weapons are being fired, his company looked at sound abatement and special weapons assessment facilities to design noise mitigation.  He shared that while working for the Michigan Department of Natural Resources, there was a vendor who was operating a clay pigeon shooting range that was disturbing people several miles away; with very detailed assessment and modeling, his company was able to come up with some reconfigurations of some of the shooting stations, and designed some enclosures for some of the areas where people were shooting; and that, coupled with some large earth works and berms, helped to mitigate some of the sound coming from the facility.  He stated the methods described in the County's Noise Ordinance are not able to distinguish impulsive noise; interestingly, noise is defined as any sound produced in such quantity and duration that it disturbs a reasonable person of normal sensitivities, in the Ordinance; and Section 62-2271 (a)(2)(p), states, "Plainly audible shall mean sounds where rhythms or words heard and/or comprehensible rhythms are picked up". He displayed a slide representing three gunshots outside a police training facility for a large Florida city; the city also had a consultant use the same type of meters used by Brevard County; measurements were taken in a similar way; the residents said they heard the gunshots; but if he measures it in an L-slow, it drops down by five Db; and if he goes to 15 minutes, he is in the ambient and there are no violations; but if he measures the peaks, they go up to 75 Db.  He stated the sound metric that is in the County's Ordinance, in taking a 15-minute average, would be like taking at radar gun in a field, and instead of being adjusted to capture someone driving 100 mph, it just stops at 50 mph.  He stated the Ordinance has the limit and the intent, but there is no technical support to allow that to be reflected.  He stated the Ordinance states that the sound pressure level should be measured over a specified period of time during which the sound level fluctuated; and a gunshot fluctuates over one millisecond, which is one one-thousandth of a second.

 

Chairman Fisher inquired if he is arguing whether the sound ordinance is sound or not.  Mr. Siebein stated he is just trying to present some scientifically based understanding as to why the Board is hearing from residents that they are being disturbed, and enforcement officers coming out and not being able to measure sounds that show or relate to some of the concerns that the neighbors have.  Chairman Fisher inquired if Mr. Siebein had a solution.  Mr. Siebein stated he has not studied this issue, but he would be glad to put one together. 

 

Commissioner Bolin inquired if Mr. Siebein has gone out and measured it himself.  Mr. Siebein responded he has not been given access to the site to conduct those types of studies.  Commissioner Bolin inquired if he has measured from his client's backyard; and if he was able to get there.  He responded he could get there, but he did not know when the guns were going to fire; but he is going to the police station, and he could arrange to be there at a time when the activities were going to occur. 

 

Commissioner Anderson stated he does not think the issue is in the Board's purview to hear, because it is only hearing compatibility of land use; and inquired if Mr. Siebein was going to do testing, knew the schedule of testing, and was in his client's backyard, he would admit that humidity, temperature, and wind all play a factor on whether gunfire can be heard on certain days.  He stated he is sure Knight's is firing out there that it may be audible, but not above any level that would be intrusive to the neighbors. 

 

He stated there is a lot of subjectivity; he does not mean to criticize, but he does not believe the Board should even be hearing this at this point; but since Mr. Siebein has clients that have paid him to do this, he wants it on record that this is not just a simple test of measurements on one given day; and Mr. Siebein would have to be out there every time they fired over a three month period to get an idea, because the same calibers are not fired all the time.  Mr. Siebein stated that is not exactly true; none of the things they did were over three or four months.  Commissioner Anderson stated he has spent a long time on the gun range and it sounds different every time he goes out there because of humidity, wind, and temperature.  Mr. Siebein stated at one to two miles the temperature inversion will have an effect; and most of the computer modeling software programs have algorithms where that can be adjusted and accounted for. 

 

Chairman Fisher inquired what a reasonable solution would be to the problem, based on Mr. Siebein's expertise.  Mr. Siebein replied he would suggest conducting a noise study under controlled conditions, where there is some set up of several of the typical events, from the smallest caliber weapons to the farthest range, to largest caliber weapons at the shortest range to get a field measurement at several key locations to calibrate a computer model; and   then look at the possibility of tiered intervention methods with a variety of partial enclosures, berms, walls, baffles, all the way to full enclosures. 

 

Chairman Fisher inquired what the cost for that would be.  Mr. Siebein responded it would depend on the project; and he does not know specifics of the site to be able to say that right now.  Commissioner Anderson inquired how much time Mr. Siebein would need to do something like that.  Mr. Siebein replied probably in three to four weeks. 

 

Ms. Rezanka inquired if Mr. Siebein had done any investigation as to where the testing sites and trees are, and that type of thing.  Mr. Siebein responded no, nothing specific; he took a generic reading by putting a 50 caliber weapon into a computer program called Sarnam, which was developed by the Army to assess small arms range noise. Ms. Rezanka inquired if he had looked at this specific site's conditions.  Mr. Siebein stated his company has not done any specific analysis for this.  Ms. Rezanka inquired if he would agree that some people are more sensitive to sound than others.  Mr. Siebein stated there is a whole field for psychoacoustics, which studies the commonality to the way people react to sounds, and whether or not a person hears the sound, the time the sound arrives, and which pitches of sound are more annoying.  He added there is actually an amazing agreement among most humans.  Ms. Rezanka stated her question was if some people are more sensitive to sound than others.  Mr. Siebein stated it is a possibility, but again, there is a huge amount of commonality in the way people respond to most sounds. 

 

Sandra Clinger stated she attended two meetings that were requested.  She noted the first meeting was requested through Commissioner Fisher's office, and was held June 29, 2011; and it was not at all what she requested.  She added she requested a sit-down meeting with the applicant to discuss the issue and see if they could work together to get to a resolution; instead, what they attended was a Knight's presentation with no opportunity to sit down and discuss anything; and it turned into a Knight's pep rally where there was a lovely tour of the museum.  She noted they left that meeting asking for another sit-down meeting, which is what they expected when they walked into the first meeting.  She went on to state Mr. Knight said he would do that; she continued to call to request that meeting up to the time of the Planning and Zoning meeting; the day of the Planning and Zoning meeting, she got a call asking if she would be interested in meeting at Commissioner Fisher's office at 1:00 p.m., and the Planning and Zoning started at 2:00 p.m.  She added she cannot be in two places at the same time, so the meeting was rescheduled; that meeting occurred on July 21, 2011, after the Planning and Zoning meeting; the week before that meeting, there was a lot of email correspondence that they would be allowed to test at the facility on that date; and she then got an email saying that they could not test on that date.  She advised on the 14th or 15th, she received an email saying Mr. Knight was back in town and that no testing would be done; and in the meantime, she had spoken with an acoustical engineer and tried to get the reschedules arranged and got the questions, and had everyone situated on what needed to be known; and they were told no, that there was only going to be a sit-down meeting and that they would like the acoustical engineer to be there, or available, and that they would like the engineer's resume.  She stated they went, perhaps naively, thinking that maybe it was just another step towards testing; she attended with her husband, and an acoustical engineer on the phone, it was not Mr. Siebein at the time; and once again at the meeting, they sat at a table while Mr. Knight and Ms. Rezanka deposed her acoustical engineer.  She added they asked her acoustical engineer questions, what her qualifications were, what equipment she would use and why; at no time was there any recognition of the problem; but there is a legitimate problem in that his business is creating a problem for surrounding neighborhoods; and there are over 100 residents that, in one afternoon, which it rained, who agreed that the noise level was excessive, pervasive, and affecting their ability to use and enjoy their property.  She added she never had a problem with Knight's Enterprises activities until they came into her backyard; they are an uninvited guest in her home, her daughter's birthday party, and every family backyard barbecue; and she does not know their schedule, so she is not able to arrange around it.  She stated currently Knight's personnel operate 50 caliber weapons without any noise abatement out in the open; and it is excessively loud, and it is a nuisance.  She stated it impacts the enjoyment of her home and property; this is not the norm for other large scale weapons manufacturers, particularly when they are in such close proximity to a neighborhood; and as Mr. Siebein has shown, there are alternatives.  She went on to say it takes a while to recognize the gunfire; she first thought that maybe someone was having their roof re-done; there is no way that this amount of noise could possibly be appropriate; and she was told they are completely within their permits and within the regulations with the noise level; and she found out that no one checked in 2006, with her multiple calls to Code Enforcement, whether or not the permits were correct.  She added in one afternoon she collected 100 signatures of other homeowners in the surrounding neighborhoods in Windover Farms, Meadow Ridge, and Riveredge Drive who are all affected; they do not live 500 feet from the property, but they are still affected.  She stated if the Board, as it sits today, is under the impression that it can do nothing to restrict this businesses outdoor activities, related to the test firing of weapons, which has to do with the zoning change, then she asks to deny the re-zoning until reasonable measures are put in place to protect the residents. 

 

Ms. Rezanka inquired at the meeting on June 21, 2011, did Mr. Knight and Mike Warner not advise Ms. Clinger that 50 caliber testing would be done that following Monday.  Ms. Clinger responded yes, they did, and she contacted her acoustical engineer, but they fired on Tuesday.  Ms. Rezanka further inquired if she was contacted and told the schedule had changed and they would fire on Tuesday.  Ms. Clinger stated it was not enough time to reschedule an acoustical engineer.  Ms. Rezanka inquired if Ms. Clinger received an email from Mike Warner, or Mr. Knight that said they would reschedule and do a test specifically for the acoustical engineer if that would work better.  Ms. Clinger responded she did not, it was sent to her husband; and at the last meeting, on July 21st, Mr. Knight told her no acoustical engineer would be allowed on his property because he believed they were a competitor of his, and that he would be pursuing an acoustical engineer on is own; but that they were free to test outside of the property whenever they chose.  Ms. Rezanka inquired if Mr. Knight or Mr. Warner said they would arrange test firing so her acoustical engineer could read the firings at least from the property line.  Ms. Clinger responded after what happened on Monday, and the lack of actual recognition from Mr. Knight that there was even a problem, she felt at that point that she needed to put the resources to hiring an attorney and having the acoustical engineer come and testify at the meeting today. 

 

Bob Socks stated he is a 43 and a half year resident and business person in Titusville; and he lives closer to Knight's than any of the people here today; he lives on Sisson Road which runs from Highway 50 to S.R. 405; and it is about a two-mile, two-lane road.  He went on to say he has heard the gunfire; and to him it is a pleasing sound.  He added it is the sound of freedom; these people are out there testing weapons that are going to Afghanistan and Iraq, and in the hands of the United States Military; things are trying to get wrapped up over there; and he feel Knight's has done an incredible job.  He mentioned the new museum with the 60 new jobs, and the 300 tourists a day coming into Titusville; and stated he supports and endorses Knight's request; and hopes the Board favors them this evening. 

 

Rodney Honeycutt stated he lives slightly closer than the Riveredge Drive complainant; and he did not notice the gunfire ever, until the complaint came up.  He added once he listened for it he could hear it, but could not until he really listened for it; and if a car drives by while the gunfire is going on, the car is louder than the gunfire; and it is really not that big of a bother to him.  He noted he is very proud that Knight's Armament is in his community, making these weapons for the United States Military; and he is sorry that it bothers some people to the point that they make these complaints.  He stated he would like to remind them that Mr. Knight is in compliance with the County's Ordinances, and he urges the Board to support the request. 

 

Mr. Repperger inquired if Mr. Honeycutt has ever acted on behalf of Knight's as a consultant.  Mr. Honeycutt responded yes. 

 

Mike Warner stated he works for Knight's Armament, and at the meeting with Mr. and Mrs. Clinger, where the acoustical engineer was on the phone, they did tell them they would test, but they said they could not test on the property.  He advised the Ordinance says the acoustics are from the property line, not from the firing position.  He advised he sent Mr. Clinger an email on Monday morning, because they do not fire 50 caliber weapons unless a customer asks for it to be; they had not fired since May; and he called and said they were going to fire on Monday.  He went on to state when they fired on Monday, he went to Ms. Clinger's house, and stood outside in the road in front of her driveway; he called for fire; he heard it on his cell phone; Mr. Knight, Mr. Knight's son, and himself could not hear the first crack of fire; and that was firing the 50 caliber from the position that they are allowed to fire from. 

 

Mr. Richardson inquired if Mr. Warner is the person most knowledgeable about the times and frequency at which firing occurs; Mr. Warner responded yes.  Mr. Richardson further inquired how often they test fire 50 caliber weapons, or other small arms.  Mr. Warner responded small arms pretty much daily, but during the arguments, they agreed to fire between 8:00 a.m., and 3:30 p.m., with 3:30 p.m. being the absolute latest if a test is running long, but that is mostly with 308's and 556's.  He stated 50 caliber is fired in the position that they are already zoned for and they do not fire that on the 100 meter range; and the last time it was fired was on May 13, 2011, and then again on July 25 and 26, 2011.  Mr. Richardson inquired if that is the loudest firing weapon on the site.  Mr. Warner responded, yes.  Mr. Richardson inquired if the smaller arms are the ones that are tested sometimes on the IU zoned property, but the 50 caliber is only tested on the IU-1 zoned property.  Mr. Warner responded over the past year, yes.

 

Bobby Bowen, Code Enforcement Manager, stated for the record, he has never met with Mr. Knight, or any of his employees; however, he has reviewed all of the reports concerning this issue.  He added, in going back to February, the ambient noise level was 51.6 Db; the loudest they measured was 85.6Db, and that was with a passing airplane.  He went on to say based upon the language of the Code, staff has not conducted any testing where Knight's has exceeded the allowable decibel level relative to their zoning classification; and 75 Db is the maximum level.  He advised he understands that people can hear it, and that it may be annoying; however, based upon the language of the Code that he and his staff have to abide by, there are no violations under the Ordinance. 

 

Chairman Fisher inquired if the County Attorney has seen any violations in the Code as far as testing.  Mr. Richardson responded all of the data he has seen that was collected from the Code Enforcement Officers states that Knight's Armament is within compliance with the County Code of Ordinances; and he believes the disconnect that the sound expert eluded to, between what the residents are experiencing and what Code Enforcement is testing, is that the Ordinance dictates this 15-minute interval, which is not necessarily ideal for impulse noises like firearms, but it is what it is; and Knight's is not in violation of the Code under those standards that the Board adopted. 

 

Cynthia Fox stated she would like to clarify for the Board that the request for IU-1 Zoning is also required for the CUP for Arsenals and Explosives; the activity the Sheriff's Office does on the property are the activities that necessitated the need for a CUP; and that does need the IU-1 zoning classification.  She added the other CUP request can be separated out for the exhibits and the museum, but not the Sheriff's portion for Arsenals and Explosives.  Chairman Fisher inquired if the Sheriff's Department detonates explosives or fire firearms.  Ms. Fox responded the Board may want to refer to the applicant, but from the information that the Planning and Zoning Office has received, they have allowed the bomb squad to detonate devices there.  Chairman Fisher inquired if that were true.  Mr. Warner responded yes. 

 

Ms. Rezanka inquired if not here, then where; it is industrial zoning; there are no adjacent residential neighborhoods to this property; there are complainants all over the place; and there were five or six testimonies today.  She further inquired how they would categorize a neighborhood when there are no noise violations by County Code; Brevard County Code is what Mr. Knight is and has relied upon; they have done their own testing; she was with them when they went to Ms. Clinger’s house on Tuesday July 26, 2011; and she did not hear any noise.  She added she was 600 feet from where they were firing 50 caliber guns, and it sounded like someone dropped a box, it was not that loud.  She added they are measuring as the sounds come about, it is not at 15-minute intervals; and she does believe it is a peak issue.  She advised her voice registered louder than the 50 caliber gun 600 meters away.  She stated there are trees, which are noise mitigation; there is a 35-foot berm that they fire into; and there is a rubber bunker that they fire the 50 caliber into, so there are some noise abatements already on the property.  She stated that the gunfire is loud, and they are not disputing that; just like the toy was loud, but that was only a foot away from the sound measurements; here they have to measure from the property line; and it is a very large piece of property.  She added the only other thing she can consider is the County's Administrative Policies, which is what was also recommended in the staff report, and looking at the consistency and compatibility with the area; there is an airport, a helicopter school, training by the Gryphon Group, which is firing weapons; there is a busy street; and there is no other place for this.  She stated it is an industrial zone; there is an industrial park to the west; and she would submit, as Commissioner Anderson stated earlier, that some people are more sensitive to sound.  She stated an individual’s perception of loudness is based on a number of different things; she has done some reading and she does not think it is believable that the expert would say that everyone hears sounds the same; some people are over-sensitive to sounds, triggered by fear or distress; and some people are sensitive based on their emotional state. She added what was heard today, and at the Planning and Zoning meeting, are five property owners complaining; those same five property owners are the ones that have been complaining to Code Enforcement since 2006; her client has met the County's standards, zoning codes, and conditional uses; and they ask that the CUP be approved for the large scale amusements on all of the property, and the re-zoning on the western portion was the CUP for Arsenals and Explosives. 

 

Mr. Richardson stated there was a reference to an offer of testing and acoustical engineering, of up to $50,000 in noise mitigation efforts; and inquired if counsel could receive that as an offer or suggestion that there is some willingness for a binding development plan encompassing the area.  Ms. Rezanka responded no, the applicant is willing to work with the neighbors, and has said so; but the neighbors have flat-out stopped working with them.  She stated they agreed to set it up for them, and she does not believe there is any reason to do a binding development plan, because Mr. Knight meets the criteria.  Mr. Richardson stated he was asking for the record if that was an offer that was still on the table, or if she was just reciting that as old history.  Ms. Rezanka stated that was just old history she was going through, that Mr. Knight was willing to work with them, but the neighbors did not follow through.  Mr. Richardson stated he was just making sure, because it was referenced in the beginning and he was not clear if that was an ongoing offer.  Mr. Knight stated the meeting was with Ms. Rezanka, Mr. Warner, Mr. and Mrs. Clinger and himself; Mr. Clinger inquired if they could get an expert and come up with a reasonable solution, would Knight's co-share with them up to $50,000 for the cost of noise abatement; and he told them that Knight's would, in fact, do that. 

 

Chairman Fisher inquired if that was a position that he still held at this time.  Mr. Knight responded yes, he does. 

 

Mr. Repperger stated his clients will definitely work with them; that has not been abandoned over the course of a month; he finds it hard to believe that a $50,000 offer, even if it is cooperative, has now been taken off the table.  He added Ms. Rezanka asked if not here, where; but he asks if not now, when can the residents be protected.  He noted the opportunity is before the Board, and there is a compromise here; his clients recognize the economic impact and the service; and they would like to come together to broker a compromise to protect the neighborhood. 

 

Commissioner Anderson stated if the Board follows the rules and the laws as it is supposed to, the first thing that is looked at is compatibility; and if compatibility is looked at on adjacent properties, the request for IU-1, on the property that is currently IU, is definitely compatible.  He added the second thing, going off of the County's current noise ordinances, there has been testimony from Code Enforcement that none of the noise ordinances have ever been violated, so he does not believe that would trigger a restriction in the CUP; and the Board cannot go forth and change the rules at this time, because that would be prejudice to the applicant.  He stated as far as the offer on the table, that is fine; he can see by the adversary between some of the parties, that the issue of where and when the testing is done is going to continue to mount. 

 

Commissioner Infantini stated she understands that Mr. Knight is not required to do something, but she has watched the ridiculous restrictions that have been placed on individuals who would just like to keep a truck on their property; and the financial means and resources that were put on them were incredible.  She added just because someone did something to one person that she did not approve of, does not mean she would do it to someone else.  She stated she would hope in the interest of fair-play, that Mr. Knight would be willing to put something up, maybe a tree buffer.  She stated trees do help buffer a great deal of sound. 

 

Commissioner Nelson stated the issue for him is if the Board denied the applicant, it still does not solve the problem; he cannot fix it; and it can be fixed on one side of the property, but not on the piece that they are firing on legally.  He advised he does like the offer of assisting with some type of mitigation; the Economic Development Zone could actually participate in the solution; a nay vote does not fix it; and the zoning is correct, but he wants to know how the Board gets to some cooperative attempt at resolving the sound issue.  He added, a study, while it is important, is also a lot of money; and he just wants to see some attempt at trying to resolve the issue because it is good for the community. 

 

Commissioner Bolin stated she is privy of the same mind set on this with the approval at where it stands, but still dealing with Mr. Knight's offer to coordinate; and inquired if that needs to be in the motion, or on the side between the two parties. 

 

Mr. Richardson responded that is why he asked; technically, the Board only has the authority to grant or deny unless the applicant voluntarily submits a proposed binding development plan or something of that nature; and he asked if that was part of the applicant's proposal, but Ms. Rezanka stated it is not.  He advised conceptually that can be something that theoretically could be incorporated into a binding development plan, but absent that it is just an agreement between the parties; and at this point, it is only an oral, good-faith agreement.  He stated it is not anything that has been produced.

 

Commissioner Anderson stated from the expert's testimony that was heard, it is a very subjective science; noise travels very differently in different ways; and he does not want to set a standard of placing binding development plan restrictions on applicants just to satisfy something the Board has no authority over, and it makes him very nervous.  He stated they are a nation of laws and ordinances that handle this; his current motion follows that; and absent any other discussion he would like to call the question.

 

Commissioner Nelson stated the rezoning of the one piece to IU-1 could have conditions on it.  Mr. Richardson stated the rezoning itself could only have conditions if the applicant voluntarily submitted to a binding development plan; and the CUP can have conditions that are inherent of a CUP, but the rezoning from IU to IU-1 is all or nothing absent the applicant's voluntary entry into a binding development plan.

 

Chairman Fisher inquired if there was something that Mr. Knight would agree to, without doing a binding development plan. Mr. Knight stated they have done quite a bit of studies on their own; this issue has been going on for quite some time; and the problem is, at short ranges, which is within 400-500 meters, a berm or a buffer works very well, just like out on the highway.  He stated unfortunately, the berms can also accent and make the noise louder because as the noise bounces over that they pick up an angle and bounce of the clouds and atmospheric conditions.  He advised that is what he said when talking to Mr. and Mrs. Clinger, that the studies have found that walls can be put up, like an amphitheatre, where the walls direct all of the sound in one direction; if all of the sound is getting directed upwards, then it cannot scatter into the woods and dissipate, which is what one should want to happen.  He stated he told them he would be glad to cost-share with the residents up to $50,000, if they could come up with a solution; but his point to that is they have not found that solution, and if their expert can come to the table and say what will solve the problem, and sign off on it, build it, and leave him alone, he will be more than happy to pay $50,000. 

 

Commissioner Nelson stated he does not see a mechanism to get good-faith and credibility with Mr. Knight; and he believes that Mr. Knight means what he says. 

 

Chairman Fisher stated this is difficult for him because there are residents in his District complaining and have legitimate concerns, and he would like to thank them on how respectful they were to the Board to address their concerns.  He inquired if Mr. Knight is willing to work with the neighbors to come up with a solution that allows him to spend good dollars on solving a problem.  Mr. Knight replied yes, if they come up with a solution and match his dollars up to $50,000 to help solve the problem, which is what the offer was. 

 

Ms. Clinger stated they went to the table at that meeting, and had raised $3,500 from homeowners; the community is not a multi-million dollar business; the residents said they would bring some money to the table, but they did not say they could bring an even match to a multi-million dollar company. 

 

Commissioner Bolin inquired if the offer was what he stated to her, whether or not they could do it or not.  Ms. Clinger stated that was not the offer that was stated; and it has been totally mis-characterized.  She advised her husband had said he did not understand why, as a business owner, Mr. Knight would not be willing to come forward and do some reasonable mitigation; and in his mind, if it was up to $50,000 that would seem to be reasonable as a business owner himself.  Commissioner Bolin inquired if Mr. Knight said he would match up to $50,000.  Ms. Clinger stated she never heard that statement made; she left that meeting with a clear feeling that the residents were not being heard, and that they needed to move forward and use that money elsewhere.  Commissioner Bolin stated one saying yes, and one saying no. 

 

Commissioner Anderson stated he does not think that they are going to come to a solution; the question needs to be called; even if a noise abatement was done, it would solve it for them but cause the problem for someone else; and noise is not contained in a box. 

 

There being no further comments or objections, the Board approved Knight's Enterprises, Inc., for a change from IU & IU-1, with a CUP for Explosives Manufacturing and Storage, to all IU-1, retaining the existing CUP, and adding a CUP for Arsenals and Explosives on the entire property. 

 

MOVER:            Andy Anderson, Vice Chairman / Commissioner District 5

SECONDER:     Trudie Infantini, Commissioner District 3

AYES:                Fisher, Nelson, Infantini, Bolin, Anderson

 

 

 

Cynthia Fox, Planning and Zoning Enforcement Manager, advised the request is for a Conditional Use Permit for a 199-foot lattice cell tower; the property is a small leased area that is part of an almost 300-acre parcel; as part of the request, the applicant is proposing a waiver of 706 feet from the required 995 feet for the west setback; and the closest single-family residence is to the south at approximately 1,101 feet from the proposed location.

 

Laura Belflower, representative for the applicant, stated as the staff report indicates, the applicant meets all of the requirements except for the setback to the west; the property to the west is owned by the same property owner; and it is a technicality as to where the line is drawn.

 

There being no further comments or objections, the Board approved the request by Maxiland, Inc.'s (Sheryl Denan/SBA Network Services) request for a Conditional Use Permit for Towers and Antenna, with a waiver to the west setback from residential zoning, on property zoned AU on 293.08 acres, located on the north side of Banyan Street, immediately west and opposite of the northern terminus of Golfview Avenue, as recommended by the Port St. John Independent Special District Board.

 

MOVER:            Mary Bolin, Commissioner District 4

SECONDER:     Trudie Infantini, Commissioner District 3

AYES:                Fisher, Nelson, Infantini, Bolin, Anderson

  

 

 

Cynthia Fox, Planning and Zoning Enforcement Manager, advised the item is a request to legalize an existing auto salvage yard; the salvage yard has existed for many years, but has been an illegal use of the property.  She advised a salvage yard requires a conditional use permit (CUP) in the IU-1 zoning classification; and therefore, the request for a CUP also includes a small scale comprehensive plan amendment to change the Future Land Use to Industrial.

 

Duane Watson, representing the applicant, stated in 1982 the subject property was a junk dealer; the Business Tax Receipt for 2010/2011 is for a junk dealer; and stated the term 'junk dealer' includes activity commonly known as an auto-wrecking yard.  He stated the owner has used the subject property since the early 1960's; the first Business Tax Receipt was granted 30 years ago; there has only been one complaint since the 1960's, from FDOT about a car parked in the front; and the owners removed the car.  He stated he has contacted the surrounding adjacent owners, and they have indicated that they are in favor of the request by the Magnum family; but there is someone present who objects to the request.  He advised the street to the north of the subject property is Sue Street; and there is a piece of property between the Magnum's property and Sue Street consisting of a mobile home salvage area and wetlands.  He stated the only thing the Magnum's are asking for is that the current use, the business license, and the zoning, all to match; his client is willing to enter into a Binding Development Plan (BDP) stating the property will only be used as a salvage yard, which and that it will be the only use that is permitted in the IU-1 zoning classification; and further stipulated that the property will not exceed its current 4.97 acres.

 

Diane Cashe stated she owns property located at 1637 and 1641 Sue Drive; and she is opposed to any zoning changes from the existing zoning of Neighborhood Commercial. 

 

Ms. Fox stated if they wanted to use the property for any other use other than the salvage yard they would have to come back to the Board.  Morris Richardson, Assistant County Attorney, stated it is also a request for a change in the future land use map, so the comp plan has to change as well; and it is going to be industrial on the Future Land Use Map (FLUM). 

 

Commissioner Nelson stated it does not meet all the other criteria of that zoning classification; it does not have the wall around it, which is required in that zoning; and inquired if the applicant is willing to do that.  Mr. Watson stated there is a partial wall right next to Kay's BBQ; and the property is completely fenced in with an opaque chain link fence around the perimeter of it.

 

Commissioner Nelson inquired if that is permitted under zoning, or if it requires a masonry wall.  Ms. Fox responded as early as 1958, the County Code required that junk yards be surrounded by masonry walls; and it has always been part of the Code.

 

Mr. Watson inquired if that is the case, would the Board allow the time to do that, as it is very expensive.  Commissioner Nelson inquired if six months would be long enough to put a wall in.  Mr. Watson stated he was thinking more like two years; it is probably a burden of $80,000; and it is all screened in except for the concrete wall.  Commissioner Nelson inquired if one year would be efficient.  Mr. Watson requested 18 months. 

 

Commissioner Bolin inquired if the Board can stipulate that he first do the wall behind the BBQ restaurant since that would be the most important one to do, within the time element the Board is trying to negotiate here.  Mr. Watson stated that is already constructed.

 

Commissioner Nelson stated he would be okay with 18 months.  He stated they had talked about a site plan, but the Board might want to let that fall to the wayside at this point in time.

 

There being no further comments or objections, the Board approved the request for a small scale plan amendment (11S.04) to change the Future Land Use (FLU) Designation from NC & CC to IND; and a change from GU & BU-2 to IU-1, with a CUP for a Metal Salvage Yard and Junkyard; and further stipulated that a masonry wall be installed within 18 months around the perimeter of the property that is operating as a salvage yard, as recommended by the Planning and Zoning Board.

  

 

Commissioner Anderson inquired if the Board can put a provision on that motion to at least give them the ability to extend if something should occur.

 

Commissioner Nelson stated the Board can always come back if there is an issue with the plan.

 

Mr. Watson inquired if it was the entire perimeter of the property.  Commissioner Nelson stated if he is going to use it for salvage it is supposed to be; and he may choose not to do salvage on portions of it in order not to have to do the wall, but that would be a business decision. 

 

MOVER:            Chuck Nelson, Commissioner District 2

SECONDER:     Mary Bolin, Commissioner District 4

AYES:                Robin Fisher, Chuck Nelson, Mary Bolin, Andy Anderson

NAYS:                Trudie Infantini

 

 

 

Chairman Fisher called for a public hearing to consider an ordinance amending Chapter 62, Article X, Division 4, Wetlands Protection.

 

There being no objections heard, the Board adopted Ordinance 11-23, amending Chapter 62, Article X, Division 4, Code of Ordinances of Brevard County, relating to wetland protection, specifically amending Section 62-3693 - General Provisions; providing for the interpretation of conflicting provisions; providing for severability; providing for area encompassed and effective date.

 

MOVER:            Chuck Nelson, Commissioner District 2

SECONDER:     Mary Bolin, Commissioner District 4

AYES:                Fisher, Nelson, Infantini, Bolin, Anderson

 

 

 

Chairman Fisher called for the public hearing to consider an ordinance amending Chapter 62, Article IX, Sign Regulations.

 

Robin Sobrino, Planning and Development Director, stated as an introduction, the Board had tasked staff with reviewing the sign regulations in order to accommodate the need for temporary signage for some businesses.  She added staff has worked collaboratively with the citizens in order to come up with a proposed ordinance; and the two key changes were, that as the ordinance was drafted, it would embrace the use of temporary banners and A-frame signage, in conjunction with business properties.  She advised the banners would be permitted at a maximum of two per developed site, without requirement for permit, and a maximum size of 3'x5'.  She stated each business on a developed site could have their own A-frame sign, each a maximum of three-feet tall and 24 inches wide; and anything beyond that will require permitting for special events or other types of permitting.  She noted the other thing staff is trying to do is bring this up-to-date with current Code Enforcement practices; the Code currently provides an option for issuing citations; and since they have gone to using a special magistrate process, they have recommended deletion of the citation process.  She added staff feels it would be very cumbersome to maintain two types of Code Enforcement procedures, where sometimes one would appear before the special magistrates, and other times citizens are at the mercy of a court calendar to make an appearance.  She went on to say, staff has also found that because the monies associated with fines go to the State and other agencies, the County gets no return on the citations; it was an expenditure without any way to offset the cost of enforcement proceedings; and staff recommends it stay in the special magistrate arena, rather than going to court. 

 

Penny Canales stated she would like to thank Mel Scott, Assistant County Manager; Robin Sobrino, Planning and Development Director; George Ritchie, Planning and Development Department; and Cynthia Fox, Zoning Manager, as they did a great job on the ordinance.  She added they sewed up a lot of the loose ends and confusion that she saw in the Code the first time she was there.  She inquired if the Enforcement Section under "A" and "B" were supposed to be combined into one part or the other; it has to do with the $500 a day off premises; and thought that was going to be combined.  Ms. Fox stated staff will look into it. 

 

Commissioner Nelson stated there has not been any time to look at this; the Board just received it in the final format; and he got a chance to look at it today, and was trying to see how it would impact neighborhoods.  He added he drove down Courtenay, and S.R. 520 just to see; and one of the things that concerns him is, every business can get an A-frame sign.  He advised he drove by a strip mall, and there were already four out there; they are illegal; the point is there could be 16, because there are 16 units in that strip mall; and there are two banners. 

 

Commissioner Anderson stated these are on the right-of-way, and the ordinance as drafted does not allow that to occur.  Commissioner Nelson advised they would pull them back behind the telephone poles, but he wanted to give an idea of what the impacts would be.  He stated he would like more time to talk with the community to get real input.  He stated it has been through the administrative process, but not the community process; and he would like a redevelopment agency to look at it, because it impacts both streets and neighborhoods.  He added September is the Final Budget, and inquired when was another good opportunity after August. 

 

Commissioner Anderson stated this is only the first reading.  Commissioner Nelson stated he understands, but would like enough time in between the two for public hearings. 

 

Ms. Fox inquired if October would be a good time for the second reading. 

 

Ms. Sobrino stated the second reading would typically be during the day; and that would be October 4th, unless Commissioner Nelson would prefer a night time reading, which would be the October 6th Zoning meeting. 

 

Commissioner Anderson stated he is okay with October 4th, but there is a current, temporary stay on enforcement actions when it comes to these signs; and inquired when that will sunset. 

 

Ms. Fox stated she believes one year, and that the Board has time. 

 

There being no further comments, the Board conducted the first of two public hearings to consider proposed changes to the Sign Regulations, Chapter 62, Article IX; and stipulated that the second public hearing be held October 4, 2011. 

 

MOVER:            Andy Anderson, Vice Chairman / Commissioner District 5

SECONDER:     Mary Bolin, Commissioner District 4

AYES:                Fisher, Nelson, Infantini, Bolin, Anderson

 

 

Upon consensus, the meeting adjourned at 7:59 p.m.

 

 

 

 

 

 

ATTEST:                                                                                                                                

                                                                        ROBIN L. FISHER, CHAIRMAN

                                                                        BOARD OF COUNTY COMMISSIONERS

                                    _______                      BREVARD COUNTY, FLORIDA

MITCH NEEDELMAN, CLERK