February 5, 2004

The Board of County Commissioners of Brevard County, Florida, met in regular session on February 5, 2004, at 5:32 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairperson Nancy Higgs, Commissioners Truman Scarborough, Ron Pritchard, and Susan Carlson, County Manager Tom Jenkins, and County Attorney Scott Knox. Absent was: Commissioner Jackie Colon.

The Invocation was given by Pastor Mark Balmer, Calvary Chapel of Melbourne.

Commissioner Ron Pritchard led the assembly in the Pledge of Allegiance.

REPORT, RE: HOME OWNERSHIP

Commissioner Pritchard stated he distributed a handout to the Board concerning home ownership; and read aloud, “Home ownership is unique to the American way of life. It sets our nation apart from other nations in the world. It gives a family sense of belonging. People do not tear up what they own. It is the largest investment most will ever make. It enables a family to build up equity that will enable them to open a small business some day or to fund their children’s college education. Our elected officials should take action to remove every barrier or hurdle that stands in the way of the people being able to achieve the America dream of home ownership. This includes overly restrictive building codes, burdensome regulation, excessive impact fees, and exclusionary zoning.”

REPORT, RE: PORTABLE ON DEMAND STORAGE UNITS

Commissioner Pritchard stated he has one other item to bring to the Board’s attention; it needs to come back as an agenda item; and it deals with POD units, portable on demand storage. He stated it goes by other names but it is, in essence, door-to-door storage; and the problem is that some of the units end up parked in driveways for months. He stated they are not being used for the intended purpose, which was to load up the unit with belongings, perhaps have them stored for a period of time, move them to another area, and then have them unloaded and removed. He stated they have become non-permitted structures parked in front of houses or businesses for weeks at a time; the City of Melbourne has addressed this; and the Board should get staff to review what the City has done and come back with a report.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to direct staff to look into the portable on demand units and see what can be done so they do not become a burden to the neighborhood.

RESOLUTION, RE: COMMENDING EAGLE SCOUT MICHAEL J. SCHEXNAYDER

Commissioner Carlson read aloud a resolution commending Michael J. Schexnayder for his achievement of the rank of Eagle Scout.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to adopt Resolution commending Michael Schexnayder for his accomplishments including achievement of the rank of Eagle Scout. Motion carried and ordered unanimously. (See page for Resolution No. 04-22.)

Commissioner Carlson presented the Resolution to Michael Schexnayder. Mr. Schexnayder stated scouting is a good thing for any young person to get into; it helps in everything he does; and he knows it will help him in the future. He thanked the Board for the Resolution and his parents for their help.

RESOLUTION, RE: COMMENDING GIRL SCOUT KRISTEN JOHNSON

Commissioner Carlson read aloud a resolution commending Girl Scout Kristen Johnson for her achievement of the Gold Award, the highest award in Girl Scouts.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to adopt Resolution commending Kristen Johnson for her accomplishments including achievement of the Gold Award. Motion carried and ordered unanimously. (See page for Resolution No. 04-23.)

Commissioner Carlson presented the Resolution to Kristen Johnson. Ms. Johnson stated Elderwish consists of visiting nursing home residents regularly and finding out what they like; and they try to make their wishes come true with help from the community. She stated she is thankful her mother got her into Girl Scouts when she was young because it has given her many opportunities.

Chair Higgs inquired if Ms. Johnson had fun; with Ms. Johnson responding yes. Ms. Johnson stated not many people know that girls her age are still in Girl Scouts.

RESOLUTION, RE: COMMENDING GIRL SCOUT CARRIE LYNN HODGE

Chair Higgs advised Ms. Hodge is not present.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to adopt Resolution commending Carrie Lynn Hodge for her accomplishments including achievement of the Gold Award, the highest award in Girl Scouts. Motion carried and ordered unanimously. (See page for Resolution No. 04-24.)

Commissioner Carlson stated she will be happy to present the Resolution to Ms. Hodge at whatever occasion she would like it to be presented.

RESOLUTION, RE: COMMENDING GIRL SCOUT ROSHNI PATEL

Commissioner Carlson read aloud a resolution commending Girl Scout Roshni Patel for her achievement of the Gold Award, the highest award in Girl Scouts.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to adopt Resolution commending Roshni Patel for her accomplishments including achievement of the Gold Award. Motion carried and ordered unanimously. (See page for Resolution No. 04-25.)

Commissioner Carlson presented the Resolution to Ms. Patel. Ms. Patel stated she almost quit scouting, but her mother pushed her to continue; and it is a good thing she did so or she would not have gotten this far. Chair Higgs stated the Board is very proud of Ms. Patel’s accomplishments.

RESOLUTION, RE: COMMENDING GIRL SCOUT CARRIE LYNN HODGE (CONTINUED)

Commissioner Carlson stated Carrie Lynn Hodge is present now. She stated the Board already adopted the Resolution; and read aloud the Resolution commending Carrie Lynn Hodge for her accomplishments, including achievement of the Gold Award, the highest award in Girl Scouts. She presented the Resolution to Ms. Hodge. Ms. Hodge stated in scouting she has gotten to know wonderful girls; and Girl Scouts is a wonderful way to recognize the females in the community. She stated her dreamer who was 100 years old had the Parisian party, which allowed her to reflect on her past and her son. She stated the dreamer who had a day at the mall was in a wheelchair, and had not been able to go places; it was a big surprise; and she was beaming afterwards, so it was fun.

Chair Higgs thanked Ms. Hodge for sharing her story and for being here tonight.

PERMISSION TO ADVERTISE AND SCHEDULE EXECUTIVE SESSION, RE:
LUMBERT/KAUFMAN V. BREVARD COUNTY

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to grant permission to advertise and schedule an executive session on February 10, 2004 at 11:30 a.m. or as soon thereafter as possible to address Second Demand for Judgment in the case of Lumbert/Kaufman versus Brevard County. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ITEMS REQUESTED FOR TABLING OR WITHDRAWAL FROM
THE NOVEMBER 10, 2003, NOVEMBER 17, 2003, AND JANUARY 5, 2004 PLANNING
AND ZONING AGENDAS

Chair Higgs called for the public hearing to consider items requested for tabling or withdrawal from the November 10, 2003, November 17, 2003, and January 5, 2004 Planning and Zoning Agendas, as follows:

Chair Higgs advised the audience of the procedure for addressing the Board.

Zoning Manager Rick Enos stated Items IV.A.3, Virginia Ann Tingley and Paul K. Hall; IV.A.4, M&W Pump Corporation and Eller Brothers Investments, LLC; IV.B.1 Matthew Schlick; and IV.B.2, Gerald W. and Madeleine Lafferty, have been withdrawn. He stated there is a request to table Item IV.B.8.

Item IV.B.8. (Z0401106) Esther Teitelbaum, as Trustee’s request for change from AU and BU-1 to EU-2 on 10.69 acres on the east side of US 1, south of Canaveral Groves Boulevard, which was recommended by the P&Z Board for approval with a BDP limiting development to 20 residential lots and 2,000 square-foot minimum house size for lots fronting on North Indian River Drive.

Commissioner Scarborough stated this is not an automatic tabling as it did not come in timely. Mr. Enos stated the request was received just a few days ago; because it is less than seven days old, it is not an automatic request; and there should be someone in the audience to speak to the request, if the Board desires. Commissioner Scarborough inquired if anyone is present in opposition to the item; with response heard only from individuals supporting the item.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to table Item IV.B.8 to the March 4, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Mr. Enos stated the Planning and Zoning Board recommended tabling Item IV.B.9.

Item IV.B.9. (Z0401107) J. J. Parrish, Jr. Trustee’s request for change from AU to RU-1-11 on 178.71± acres located at the northwest corner of Hammock Road and Wiley Avenue, and extending west to Palmetto Avenue, which was recommended by the P&Z Board for tabling to the March 8, 2004 P&Z meeting and the April 15, 2004 Board of County Commissioners meeting.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to table Item IV.B.9 to the March 8, 2004 Planning and Zoning meeting and the April 15, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Mr. Enos stated the Planning and Zoning Board recommended tabling Item IV.B.10.

Item IV.B.10. (Z0401108) Nevins Fruit Company, Inc.’s request for change from AU to RU-1-11 on 20± acres located on the southwest corner of Brockett and Hammock Roads, which
was recommended by the P&Z Board for tabling to the March 8, 2004 P&Z meeting and the April 15, 2004 Board of County Commissioners meeting.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to table Item IV.B.10 to the March 8, 2004 Planning and Zoning meeting and the April 15, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Mr. Enos stated the P&Z Board recommended tabling Item IV.B.13.

Item IV.B.13. (Z0401203) Bernard R. Boniface and A. J. Hiers’ request for change from BU-1 to BU-2 on two acres located on the southeast side of Palmetto Avenue east of South Courtenay Parkway, which was recommended by the P& Z Board for tabling to the February 9, 2004 P&Z meeting and the March 4, 2004 Board of County Commissioners meeting.

Commissioner Pritchard inquired if anyone is present to speak to Item IV.B.13; and no response was heard.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to table Item IV.B.13 to the February 9, 2004 P&Z meeting and the March 4, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Mr. Enos advised Item IV.E.2, Michael S. Stern, has been withdrawn.

PUBLIC HEARING, RE: TABLED ITEMS FROM THE NOVEMBER 6, 2003 BOARD OF
COUNTY COMMISSIONERS AGENDA

Chair Higgs called for the public hearing to consider items tabled from the November 6, 2003 Board of County Commissioners Agenda, as follows:

Item IV.A.1. Kelly A. Costa, Sub, 75, west 25 feet of east 50 feet of Lots 1, 18, and 19, Parcel 26; Dana Damont Ferrell, Parcel 27. Removal of Conditional Use Permit A-8610, which was recommended by the P&Z Board for approval.

Chair Higgs advised the objections have been withdrawn.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to approve Item IV.A.1 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.A.2. (Z0310201) FBC of Brevard, Inc.’s request for change from RU-2-15 and BU-1 to all RU-2-15 with a BDP on 6.60 acres located on the southwest corner of 20th Street and Orlando Avenue, which was recommended by the P&Z Board for denial.

Chair Higgs advised Mr. Amari visited with her in her office along with some of the consultants and the applicant; and she will submit a summary of the meeting to the Clerk. Commissioner Scarborough stated he also met with Mr. Amari and Mr. Williams. Commissioners Carlson and Pritchard advised they also met with the applicants.

Assistant County Manager Peggy Busacca stated there is also a vacating request that goes with this item; and inquired if they will be heard as separate items. Chair Higgs stated they will be two separate items, but will be heard at the same time.

Attorney Richard Amari, representing FBC of Brevard, Inc., stated at the last meeting this item was tabled to give the applicant an opportunity to address two issues that were raised; the first issue was in connection with the vacation request; and the packet the Commissioners have has pictures, which are the same as he will be showing on the board for the public. He stated the pictures introduce the resume of Rosa M. Colón; they had an artist create a computer rendition of several pictures because the main issue with respect to building height was line of sight and what the buildings might look like viewed from the River Falls Subdivision to the north; and submitted Ms. Colón’s resume for the record. He stated one of the concerns or objections that was raised was with respect to the existing right-of-way that they have asked to be vacated; that right-of-way has approximately 95 feet of frontage on the Banana River; originally they proposed to exchange that for the new right-of-way, which is shown on the board framed in yellow on the southern side. He stated to address that objection they are extending the right-of-way where it hits the river to 95 feet of frontage, so it will end up with the same frontage along the river, if the Board vacates the right-of-way; and hopefully that will become a non-issue. He stated he would like to address the compatibility issue that was raised by the Board; the concerns that were raised by the residents have to do primarily with the height of the buildings located on the property to the north of Spring Street, specifically the buildings closest to the residences; at the last meeting they pointed out that the corner of the building was 155 feet from the closest residence in the subdivision; and some of the Commissioners did voice concerns about compatibility of building height. He stated part of the problem is the unknown; there is a condominium project going in next to subdivisions with very nice residences; and there is a fear created through the unknown, so they have tried to take away the unknown part. He stated through the artist’s rendition, they have been able to show the line of sight, what is seen today with the property, and what will be seen when they are done; and it is the artist’s renditions based on line of site. He stated the first drawing shows entering into River Falls and making a left; the circle on the subdivision map represents where in the subdivision the picture was taken; and it is the furthest away from the cul-de-sac. He stated the towers visible at the end of the street are the towers of Riomar, an existing six-story condominium on the beach; and that is what is seen now. He stated they racked their brains to see what they could do to address the concerns of the residents who would like nothing more than single-family on the property; and he wishes that was possible, but it is not feasible economically, so they have to go to something that gets greater density. Mr. Amari stated the rendition shows they will vaguely see the rooftops of the new buildings; in the landscaping plan that will be proffered as part of the binding development plan, they will offer to plant 90 Giant Timber Bamboo; what is seen now is the planting when first put in at 25 feet in height; but their landscape architect tells them within a year or two they will grow to 40 feet, so the building line that can be seen now will not be visible within two years. He stated the next picture shows line of sight as it exists today at the midway point in the subdivision; it is possible to see slightly the towers of Riomar; and the next picture shows the same location with their project built. He stated one reason it is not as obtrusive as it used to be is because they took a floor off the building; it is no longer three floors of residences, but is now two floors of residences; and they will limit the height of the building constructed within that area. He stated the pictures show what can be seen before the bamboo reaches its full stage in height and what can be seen after it reaches its full height. He stated the next picture is further toward the cul-de-sac; the towers from Riomar disappear at this point as they are blocked by trees; and implored the residents to look at what they will see. He stated until the bamboo grows what they will see will be what appears to be another house towards the end of the road; it is not obtrusive in any way; and when the bamboo grows to its full height, they will not even see that. He stated the next picture is at the end of the cul-de-sac; the two-story house shown on the lot does not exist; and that lot is owned by the applicant. He stated the other house shown does exist; it is the closest to their property line; and the existing tree will block the view of that house. He stated what is shown is the bamboo at the existing height that will be planted; and in the binding development plan they give quantities and sizes of the bamboo plants. He showed the view from across the cul-de-sac; stated they will see even less of the building; and it is totally compatible. He stated they will vaguely see some roofline, which will go away when the bamboo grows. He showed examples of condominiums on the beach next to single-family residences; stated some of the homes were built subsequent to the condominiums being built; and displayed a picture of a condominium or townhome project that sits next door to the entranceway to River Falls.

Chair Higgs advised Mr. Amari’s time is up. Mr. Amari stated they appreciate the time, and request approval of the application.

Rochelle Lawandales, representing FBC, Inc., stated Mr. Amari has said it all; and declined the opportunity to speak.

Ray Mulberry stated he has been a resident of Cocoa Beach since 1970; in 1970 there was no such thing as a condominium in Cocoa Beach; and he was privileged to see the first condominium built in Cocoa Beach and the first apartment complex converted to a condominium. He stated he lived on Bright Waters Drive for 30 years; but as additional condominiums were built, they noticed a rapid increase in traffic on A1A and access to A1A became more difficult. He stated as traffic became worse, he elected to move to South Cocoa Beach to get away from part of the traffic that exists in Cocoa Beach all the way from Cape Canaveral to Patrick Air Force Base; if another condominium is added to the existing condominiums, it is going to make traffic on and access to A1A a problem again; and there will probably be more traffic lights. He stated the residents of River Falls Estates would like to see
the zoning stay as is; they would welcome single-family residences in the area; and in their view, that would be an asset to the entire community.

Chair Higgs advised Mr. Williams talked to several of the Commissioners and represents a number of people.

Attorney Mason Williams stated he represents River Falls Estates Homeowners Association and lives in the subdivision as well. He stated the last time he was before the Board he submitted petitions with 60 to 70 signatures in opposition to the request; and that opposition is still there. He stated last time it was tabled for consideration of a binding site plan; the developer has now submitted a binding development plan with some revisions; and he appreciates the revisions because they have been helpful. He stated he and Mr. Amari have talked about the changes; but he still thinks the binding development plan is deficient in some respects; and he has faxed proposed edits to the County Attorney concerning those. He stated his clients feel that this rezoning should not take place; however, he knows the Board is considering some type of project on this site; and if it does grant the petition, some reasonable Code restrictions should be applied to the north parcel they are talking about. He stated it is interesting that the developer is basing his application on hypothetical houses; there is no guarantee in the binding development plan that the developer is going to build a two-story house; and there is no picture looking east from the second floor of that house, which would show the 40,000 square-foot building sitting 40 feet from that house’s property line. He stated there is no picture of the four-story buildings; and there are no pictures looking east from his door at the four-story buildings that will be visible in this development. He stated it is not good evidence to base things on hypotheticals and leave part of the picture out; and they still have some serious objections to the proposal. He stated they are a neighborhood of 3,000 to 3,500 square-foot houses; some may be as much as 4,000 square feet; and there is one big house at the entrance of the subdivision that is 7,000 square feet; but the developer is talking about putting a 40,000-plus square-foot multifamily building 40 feet from a single-family lot. He stated he does not care if they own the lot or not; someone else is going to own it at some point in time; and it decreases the value of that lot to have a 40,000 square-foot building that close. He stated the Code talks about compatibility in scope and intensity; if there is a 3,000 to 3,500 square-foot single-family home and 40 feet from that home’s property line there is a 40,000 square-foot building, the scope and intensity between those two properties has been dramatically changed. He stated the densities they are asking for are way too high; as he explained at the last meeting, what the applicant is trying to do by the vacation of Summer Street, is lump all the parcels together to load up the density on the north parcel to something that it would not support if it was a separate parcel; and the problem with that is they are in a transitional zoning area where it goes from the parcel to a trailer park that is B-1 to some very low one-story commercial buildings to single-family homes and townhomes. He stated they will be reversing the zoning there; there are lower densities on the south parcel; they are loading up the north parcel with high densities; and the trailer park will be coming before the Board to change its zoning, so this is precedential. He stated the solution, if the Board grants this, which he does not think it should, is to treat the parcel as if it were a separate parcel for development purposes, giving it the breezeway and setbacks that it is supposed to have because it is on the river and not allowing it to be loaded up with densities that would set a precedent to the north and reverse the transition of the zoning of the area.

Commissioner Pritchard stated Mr. Williams mentioned the vegetation that was masking the two-story living quarters closest to River Falls and that the picture does not show the effect it would have on the three-story building; and inquired if the three-story building could be built anyway; with Mr. Williams responding it can, but not this close. Commissioner Pritchard inquired what effect is the vegetation going to have on the other building if it were built where it is and would it be able to be seen from the River Falls subdivision. Mr. Williams responded Commissioner Pritchard may be right that the vegetation would also mask it because of the distance consideration. Commissioner Pritchard inquired if it would be the southern buildings that the River Falls residents would be concerned about; with Mr. Williams responding yes.

Doria Fohmy, speaking on behalf of the FBC of Brevard, stated she and her husband live in Brevard County; they were ready to move into a condo but had not found anything suitable until they saw the proposed development of FBC, and fell in love with it; and it is not going to harm the County in any way. She stated the way it is being planned is very tasteful and acceptable; and requested the Board look upon the rezoning favorably.

Kathy Regis stated she is from Falmouth, Massachusetts and is planning to relocate to Florida; she has been looking for three years between Brevard County and Vero Beach; and she finally found the development she wishes to live in. She stated she reviewed the plans, which look solid; they are compatible and in keeping with the neighborhood; and while she can appreciate the issues of traffic and change, that is just progress. She stated she hopes the Board will allow the development to go through.

James Zumwalt stated he is a resident of Indian Rocks Beach on the west coast of Florida; he is getting ready to retire, and has been looking for a site where he would enjoy living; and he appreciates the Brevard County area. He stated the condominium being planned is an asset to the community; he lives in a 3,000 square-foot house in Indian Rocks, and can shake hands with his neighbor and he wants to get away from that atmosphere and get into the condominium atmosphere.

Tracy Dix stated she and her husband Barry have been residents of South Cocoa Beach for a long time, and are the proud owners of the Cocoa Beach Mobile Home Park, which was discussed earlier this evening. She stated the mobile home park sits to the north of the project; River Falls sits directly west of the mobile home park; and she is present tonight on behalf of the development. She stated she is welcoming the new development into South Cocoa Beach; it has been stagnant for a long time; and the new development will breathe life into the area. She stated they are doing everything they can to make their park a better place to live; and the development that is coming is a much-needed improvement to the area. She stated she is a strong proponent of the project; and requested the Board’s approval of the project.

Dr. George Schlossnagle stated he took some photographs of the area; he has been a licensed professional engineer in the State of Florida for over 20 years and works for OHC Environmental Engineering, but is representing no one but himself as a resident of South Cocoa Beach; and he lives in River Bend Condominiums, which are just south of this area. He stated it is the lifestyle he wants; he does not want to mow grass anymore; and he loves his views of the river. He stated Exhibit 1 is a map of the area showing River Falls Drive; north at the end of River Falls Drive is a sixties-type ranch home; such homes are usually under 2,000 square feet; and south near the same point is the cul-de-sac. He stated to the west is the only access to River Falls Drive through Indian Village Trail, which is an old road with no sidewalks or underground utilities; and there is a two and three-story condominium adjacent to the River Falls area with cobblestone driveways. He stated Exhibit 2 shows Olive Street; there is an older two-story condominium on the corner of Olive and A1A; at Francis Street there is a convenience store; and at the next street is the Dix’s trailer area. He stated below the property where the project is proposed is the Lobster Shanty, so this is an area of 60’s type homes for the most part with roads and places he would like to see upgraded. He stated he would like to see improvements in the area because property values would go up; and he would like to see a higher grade of housing in the area, which would be a benefit to the community. He stated in addition it will provide more of a tax base to the County; there will be a tremendous number of units that will have real estate taxes over $5,000 to $6,000 a year; and he is a proponent of the project. He stated the condominium lifestyle is valid for a lot of people; the complex has gone to extra lengths to satisfy the River Falls area with the landscaping, turning one building around so the community will only see the end of the building instead of the side, and planting bamboo; and this is a plus for everyone.

John Straiton stated he is one of the River Falls homeowners; and the majority of the homeowners in the River Falls Association as well as a number of neighbors have expressed concerns about the impact and effect on the environment, the density increase, getting away from single-family residences, and impacts to the infrastructure. He stated when he tries to find room for compromise, he asks what it comes down to on a daily basis; and it comes down to what he sees looking across the fence every day. He stated he would be interested in seeing a perspective from the end of the cul-de-sac on River Falls Drive, looking east; what he would see is 35 feet of high-rise and a couple of buildings very close to the fence; and that is what it comes down to. He stated the concern is the height of the buildings and the close proximity to the River Falls development; and what he heard offered as a solution was that in a couple of years there could be 40 feet of bamboo blocking all that. He stated that is not something he can take to the bank as a guarantee; and when he imagines what might be there in two years, it could be a couple of three and four-story condominiums without 40 feet of the fence, looking across the cul-de-sac, which really bothers him. He requested the rezoning be disapproved.

Debi Benoit stated she is speaking on behalf of the developer and his proposed project for South Cocoa Beach; she is a resident of Cocoa Beach and a license real estate associate with Coldwell Banker in Cocoa Beach; and she not only holds a State of Florida Real Estate license, but is an accredited buyer’s representative and a Real Estate Institute graduate. She stated it is her professional opinion that the project will only enhance the value of all surrounding properties in South Cocoa Beach and bring beauty and appeal to the blighted area. She requested the Board grant the rezoning and vacating requests this evening.

Larry Walker stated he lives in South Cocoa Beach near the proposed project and knows the property well; he walked the property recently and drove the nearby streets in the neighborhood; and the concerns of the opposing neighborhood are largely unfounded, especially now that the developer made the concessions presented tonight. He stated the reality is no one will have a view blocked; and only a few homes will even have a glimpse of the building over the high brick wall. He stated the tax revenue from River Falls, a neighborhood with less than 25 mainly homesteaded properties, was just over $100,000 last year; and the expected tax revenue from the proposed development of mainly non-homesteaded condos should be four times that in the first year and growing while the homesteaded neighborhood remains static with its capped values. He stated the people of Brevard County need the revenue from well thought out projects like the one being considered; and requested the Board’s approval.

John Flory stated he has been a resident of the County for 30 years; he and his wife moved here from Massachusetts; and they live in South Cocoa Beach, currently at River Falls Estates. He stated they oppose the plan that is before the Board; the reason they live in the County is because of the beach, the quality of life, and the landscape in Cocoa Beach; and putting up a forty-foot wall of stucco and barrel tile is not their idea of living in Cocoa Beach. He stated the non-residents of Cocoa Beach who are in favor of the proposed project will not be affected directly in any way; it is not being built next to their properties; and they will not have to look at the 40-foot stucco walls. He stated he and his wife built their house two years ago; it is the culmination of 30 years of hard work; and it is their dream house, from which they do not plan to move. He stated they do not agree with the plan as it is; and requested the Board deny the request as recommended by the P&Z Board with a vote of 7 to 4.

Inge Mouris stated she and her husband retired after 30 years from the military; they moved to Cocoa Beach ten years ago to get away from traffic and crime; and if they wanted to move with concrete blocks and no green areas, they could have moved to Ft. Lauderdale or Miami Beach. She stated they moved to Cocoa Beach because it was a laid back community; and the words that Mr. Amari used are lies. She stated she could not have recognized the picture Mr. Amari showed, and she lives on the street; the north parcel should be considered as one parcel; the developer is trying to get rid of the breezeway; he is also trying to get rid of the setbacks by crowding the north side with more than it should have on it; and they should not be allowed to get around the law. She stated Mr. Amari brought up the example of a townhouse that is already next to River Falls; it is a two and one-half story house; and it does not affect their view at all. She stated if the condo is built, when she walks out of her house she will see nothing but an ugly building; and 40 feet of bamboo will not help the site. She stated Mr. Amari must be using Miracle Grow for the bamboo to grow 40 feet in one year; and it is ridiculous. She stated the people who want to move into the condo see it from their side; but they have lived in the neighborhood for years and enjoy their backyard; and now they have to think about looking out the backyard and seeing five monstrous buildings. She stated she would like the Board to see it from not only the developer’s side but also from the residents who have worked hard all their lives and saved to build their dream houses, and now it is going to be taken away. She stated all the developer wants to do is build and make money; in the meantime, they are stuck where they are; and if they try to sell their homes, they will lose money because the beauty of the land is not having condos or high-rises, but having single-family dwellings. She stated Mr. Amari said he would like to build single-family homes; and inquired why are they building high-rises that are ugly and take away all the green space. She stated the only green space in Cocoa Beach is the parcel in questions; and the developer is going to take it away from them. She commented on crime and traffic; and requested the Board reconsider and see it from their side, and not just from the developer’s side, who probably has lots of money and some people in his pocket.

Janice Kelly stated she lives in Cocoa Beach and has owned a business there for 27 years; and she has seen a lot of growth. She stated she lived in the north end of Cocoa Beach at Avon-by-the-Sea for 14 years; right next door to her house they built a 12-story condominium; and it is not possible to stop progress. She stated the south end of the beach is stagnant; it has the trailer park with a lot of undesirables; and there is a lot of crime at that end of the beach. She stated River Falls wants to have its little community all to itself and not have any progress around it, and that would be nice, but it does not happen. She stated the project is going to be a nice community with a lot of people and families; and she does not see what the problem is except there are 25 expensive homes whose owners want to oppose it. She stated that end of the beach needs an uplift; it is the entrance into the south end of Cocoa Beach; and it will also help the businesses in the area. She stated there are a lot of restaurants, surf shops, and convenience stores; and they get no business unlike downtown Cocoa Beach, which gets the business. She requested the Board accept the proposal because the development will be a nice asset to that end of the beach.

Lisa Linkinoggor stated she has resided on Indian Village Trail for 45 years; and she is opposed to the development for several reasons. She stated the attorney said they would love to see some large homes go in there like River Falls or Sunset Cove; there should be residential homes besides residential homes; and requested they not insult her intelligence talking about density. She stated everyone keeps talking about money and taxes and fresh breeze; there will be no breeze as long as people develop the ocean and rivers the way they are; and inquired if there are not enough condos for people to live in. She stated she has a cleaning service and cleans condos; she could benefit from this, but does not want to sell her soul; and at the end of the night, she wants to go home and know she did something for her community. She stated she refers to South Cocoa Beach at Crescent Beach, as she has for 45 years. She stated this will be trading the last little bit of woods for some bamboo; it is convenient that they bought the last lot on the end of River Falls Road so they can negotiate this deal; and she calls that dirty pool. She stated looking at the house and the angles they put in, it looks like it is going to cover up anything at that end; the other picture that was shown is right across the street from her home; and it is a townhouse with two families living there, so it is four neighbors as opposed to 77. She commented on traffic and breeze; and stated she left Merritt Island yesterday and was in a line of traffic from SR 520 in front of Ron Jons to the light at Publix. She stated people say it will be better when the snowbirds are gone; but they are not going anywhere and are living here year-round. She stated she wants people to come to the community, but questions at what cost. She inquired who is selling their soul here; and stated it is certainly not her.

Mr. Amari stated he has been called a lot over the years, but now he is called a liar; and people do not have to take his word for it as his information comes from the Internet at www.bambu-u.com. He stated the giant timber bamboos host a mind-boggling growth in bamboos being a nonvascular plant; and the new culms come out of the ground at the diameter they will always be and then grow to mature height in roughly 12 weeks, growing to 60+ feet. He stated there was a concern addressed about traffic; the staff report shows that level of service on A1A is D; their entranceway is almost a half mile from the River Falls entranceway; and it shows that the level of service northbound is currently about 62.3% and will go to perhaps 63.82% and southbound is at 62.09% and will go to 63.62%, which is a negligible impact. He stated there is some confusion about density; they are not increasing density; the density they can get on the property currently is 77 units; and if they built 77 houses on the property, there would be the same level of traffic that would be coming from the condominium project, so that is a non-issue. He stated he submitted the curriculum vitae of Rosa Colon, a computer graphics specialist; she created a perspective that is real; and her program is AccuRender, which lets her match points from the site plan to the pictures so everything is done to scale. He stated everyone has seen the pictures looking to the south; Mr. Williams asked why they did not show the buildings to the south; and they are not shown because one does not see them. He stated they asked Ms. Colon to show what will be seen using the whole site plan, not just part of it; it is the true actual perspective; and it is created by a computer. He stated when the bamboo gets to 60 feet, no one is going to see more than what is shown; people have their opinions and do not want to be confused by the facts; but the facts are that half of the people are still talking about the site plan. He stated people are talking about 40-foot stucco buildings; but they have agreed to limit building height to 25 feet; however, the way the building height is measured is 35 feet from the floor; and the condo at the entranceway of River Falls is every bit that tall. He stated what is shown is what they will see; but the people just do not want to be confused by the facts. He stated one lady said she was concerned about traffic and crime; he has addressed the traffic issue; and Ms. Dix, at the last meeting, testified about the problem with vagrants living on the property who come to her trailer park. He stated if they develop the property with the condominiums, they will sell from $450,000 to $750,000 each; and this is going to rid the area of crime. He introduced a study from Dr. Hank Fishkind; stated the study is the analysis the Board heard talked about; and it concludes this is a fiscally responsible project that will not only pay for itself and all of the services it will request , but at present value basis over a 20-year period of time, brought back to present value at 10% discount, the project will contribute $1.5 million to the General Fund over and above what it takes in services. He stated this is a positive project; they have done what they can do to address the residents’ concerns; and he hopes the Board agrees they have done that.

Commissioner Pritchard inquired currently under the Building Code, single-family houses can be built to what height; with Mr. Enos responding 35 feet typically. Commissioner Pritchard inquired if this was a single-family development, could houses be 35 feet; with Mr. Enos responding that is correct. Commissioner Pritchard stated the project that Mr. Amari and his company are proposing is 35 feet; with Mr. Enos clarifying part of it is at 25 feet, part is higher than that, and the maximum is 45 feet in the proposal. Commissioner Pritchard stated he is talking about the building closest to River Falls; with Mr. Enos responding the one that is closest
would be approximately 35 feet including the first level of parking. Commissioner Pritchard stated he understands the concerns of the neighborhood; but the point is a single-family home could be built in that location to a height of 35 feet; and if someone had the wherewithal, they could build a 7,000 square-foot house located in the same vicinity as the three-story building; with Mr. Enos advising that is correct. Commissioner Pritchard stated he is having a problem wrestling with that; and inquired what would be the difference in someone building a single-family residence to a height of 35 feet. Mr. Williams responded there are two differences; and one is that the definition of 35 feet for a single-family house is the average of the roof peaks of the house; with Chair Higgs advising it is not; and requesting Mr. Enos define the terms. Mr. Enos advised the height of a structure with a peaked roof is measured to the highest bearing point of the truss system. Commissioner Pritchard inquired if it would be 35 and the pitch of the roof would add to that; with Mr. Enos responding the roof typically is not part of the height. Commissioner Pritchard inquired if there is a six to twelve pitch and a 40-foot structure, could the roof go up to eight feet; with Mr. Enos responding that is correct. Mr. Williams stated the same is true for the building being proposed; the towers go up another eight to ten feet; and the other difference is that this would be a 40,000 square-foot building 40 feet from a property line. He stated a single-family home there would not be on the river; given the neighborhood it would probably be at least 3,000 square feet; and there would be a difference of 37,000 square feet between a single-family home versus a condominium building.

Chair Higgs stated Mr. Williams talked about the two parcels being separated; and requested he explain what he meant. Mr. Williams stated where they are getting their densities is by combining the two parcels; currently they must be considered as separate parcels because of the right-of-way; but the applicant is saying they do not have a density question because they are combining the two parcels, and 77 units is what is allowed together. He stated the point they are missing is that if the parcel was considered by itself as a separate parcel, which it would have to be if the road right-of-way was there, the density they are placing on the parcel greatly exceeds the allowable density of the parcel by itself. He stated they are crowding the parcel with more units than it would hold; and they want to place all the breezeways to the south, so the north parcel would have no breezeways, which by Code right now it would be required to have more open space breezeways to the river. He stated that has implications for the next site, which will certainly come to the Board. He stated Mr. Amari just brought up the figures from Dr. Fishkind; and inquired if he could comment. Chair Higgs responded not unless a Commissioner wishes to hear about that; with Commissioner Scarborough advising he would like to hear it. Mr. Williams stated there is nothing in the binding development plan that guarantees any of the numbers, building sizes, or projected selling prices; and those are projections at this point.

Commissioner Pritchard inquired what is the density on the parcel that is outlined in orange; with Mr. Williams responding the underlying plat is for 13 single-family homes. Commissioner Pritchard inquired if the parcel was rezoned to a higher density but did not incorporate the overall parcel and was treated as a stand-alone parcel, how many units could be put on it; with Mr. Enos responding the north parcel currently has 13 lots that are approximately 5,000 square-feet in size; that density is around eight units to the acre as a maximum; and if the property was rezoned to RU-2-15, that would increase the density by approximately seven units to the acre. Mr. Enos stated he does not know exactly how they are distributing the density on the proposal; but the overall density works out to 12 units to the acre for the entire site.

Commissioner Carlson stated based on the fact that this item is coming to the Board with a right-of-way vacation, which is not being addressed first, can the Board address this issue first. She stated the way the Board is looking at it now is separate, but it is discussing it together; and inquired how can that be legally addressed. Ms. Bentley responded if the vacating does not occur, their site plan cannot be developed as it is being presented in the binding development plan, so the Board is going to have to consider them simultaneously or the vacating first, because if the Board does not vacate, it will not have that site plan. Commissioner Carlson stated the other question has to do with breezeway; in the plan the applicant shows the Code talks about breezeway; and inquired how it is applied to the riverfront properties in terms of percentage of breezeway required, what they offered, and if it should be in the binding development plan. Ms. Bentley stated she cannot speak to the percentage of the property that would be consumed by a breezeway regulation because that would depend on the site and dimensions; but the Board might be interested in knowing they will not get credit for dedication of public access easements because as she reads the Code, that section talks about beachfront property getting credit for dedication of access trips, and this is riverfront. Mr. Enos advised the breezeway requirement depends on the maximum height of the structures; if any one structure on the site is as high as possible, then the breezeway would be as much as 50% of the waterfront; and the waterfront is somewhat less than the total width of the property. He stated one peculiar note in the Code is that the breezeway is only measured to a depth of 250 feet on the parcel; he has not looked on a detailed dimension site plan; but it would appear that if the large building on the east side is at least 250 feet back, then the corridor in front of it to the water would count as breezeway; the plan probably meets the breezeway requirements; and if not, it is close, so he would not expect that to be an issue at this density and configuration such that it would change the site plan in any large way. Commissioner Carlson inquired if the right-of-way the applicant talks about is the 95 feet that is owned currently by the public and that is being swapped for the pedway, and is that a one-for-one type of swap or does that count toward the breezeway. Mr. Enos responded no, but it would not count against the breezeway either because it would not be their property; and once they gave it to the County, it would not be counted as part of the property width.

Commissioner Scarborough stated Mr. Enos was giving concepts of what the actual height is; they are talking about two-story above a parking garage, then they have towers; and inquired what are people going to see, how high does it go up from the ground, and what is the highest point. Mr. Enos responded what they are going to see is approximately 55 feet if they use the full 45 feet that is permitted and probably a ten-foot high parking garage. Ms. Busacca inquired what about the shorter building; with Mr. Enos responding the shorter building is being proposed at 25 feet plus the ten-foot parking garage, so the northernmost building would probably be 35 feet. Commissioner Scarborough stated Mr. Enos indicated there was some discussion about the towers exceeding that height; with Mr. Enos responding if there is an elevator in the building, then the elevator shaft above the building is not counted as part of the height. Commissioner
Scarborough inquired what is the approximate height of the highest point of the northern building; with Mr. Enos responding his guess is approximately 43 feet, but the applicant may be able to give a better answer. Chair Higgs inquired if 43 feet is a reasonable estimate; with Mr. Amari responding yes, to the top of the tower. Commissioner Scarborough stated last time they contemplated swapping of the easements; but today they are looking at another factor. He stated with the right-of-way there, if a building is placed on the property, there would be setbacks from the line of the right-of-way; but removing the right-of-way would allow the movement of the building to further encroach on the single-family development; and inquired if that is correct; with Mr. Enos responding that is possible. Commissioner Scarborough requested Mr. Williams come to the podium; and requested he state the question for Mr. Enos. Mr. Williams stated the yellow on the maps shows the existing rights-of-way, Summer Street, and Palm Avenue; and the question that Commissioner Scarborough is asking is if the right-of-way was there, would there have to be more of a setback from the line of the right-of-way; with Mr. Enos responding yes. Commissioner Scarborough stated by removing the right-of-way, it has allowed a movement in closer proximity to the neighborhood; with Mr. Enos advising in a westerly direction toward the neighborhood, that would be correct. Commissioner Scarborough inquired what would it look like if the right-of-way was gone but the setback was held in the same configuration; and would it be 40 feet further removed; with Mr. Enos responding he is not sure how much the right-of-way width is on the west side. Commissioner Scarborough stated from the edge of the right-of-way it is a 40-foot setback; with Mr. Enos responding it can be as little as 25 feet at that point. Commissioner Scarborough inquired what does the Code require as the setback; with Mr. Enos responding 25 feet from the front and as little as 20 feet on the rear. Commissioner Scarborough inquired if that is from a right-of-way; with Mr. Enos responding yes, from the right-of-way it would be 25 feet.

Chair Higgs stated the Board is going to need to discuss Item IV.F, which is the resolution for the vacating if it is going to go any farther; since she has no cards submitted, she is going to let the Board have a ten-minute recess; and anyone wishing to speak to Item IV.F will need to submit a card.

The meeting recessed at 7:07 p.m. and reconvened at 7:16 p.m.

Chair Higgs advised of a car in the parking lot with its lights on.

Commissioner Pritchard stated he has spoken to both parties; they have made some agreements and concessions; and both would like to work this out a little further because they think there are other things that they can do to make it compatible with the neighborhood. He stated they would like to come back in two weeks, if that is possible, and four weeks if it is not; they feel that they will have more common ground and agreement; and it will be a win/win situation.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to table Item IV.A.2 to the February 24, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RESOLUTION VACATING AND ACCEPTING RIGHTS-OF-WAY
(PALM AVENUE AND SUMMER STREET) IN A&B BRUNERS RESUBDIVISION AND
A. L. BRUNERS RESUBDIVISION - FBC OF BREVARD, INC.

Chair Higgs called for the public hearing to consider resolution vacating and accepting rights-of-way (Palm Avenue and Summer Street) in A&B Bruners Resubdivision and A. L. Bruners Resubdivision as petitioned by FBC of Brevard, Inc.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to continue the public hearing to consider a resolution vacating and accepting rights-of-way (Palm Avenue and Summer Street) in A&B Bruners Resubdivisions and A. L. Bruners Resubdivisions as petitioned by FBC of Brevard, Inc. to February 24, 2004. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: RECOMMENDATIONS OF THE PLANNING AND ZONING BOARD
OF JANUARY 5, 2004

Chair Higgs called for the public hearing to consider recommendations of the Planning and Zoning Board made at its January 5, 2004 meeting, as follows:

Item IV.B.1. Matthew Schlick. Withdrawn by applicant.

Item IV.B.2. Gerald W. and Madeleine Lafferty. Withdrawn by applicant.

Item IV.B.3. (Z0401101) James R. and Kellie M. Bardo’s request for change from GU to AU on 1.94 acres located on the southwest corner of Cabbage Palm Street and Fan Palm Avenue, which was recommended for approval by the Planning and Zoning Board.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to approve Item IV.B.3 as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

Item IV.B.4. (Z0401102) Adam and Emie Franck’s request for change from AU to AGR on 6.033 acres located on the south side of SR 524, east of Adamson Road, which was recommended for approval by the Planning and Zoning Board.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to approve Item IV.B.4 as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

Item IV.B.5. (Z0401103) Robert J. Noble’s request for change from AU to SR on 0.67 acre located on the west side of North Indian River Drive, south of Thompson Avenue, which was recommended for approval by the Planning and Zoning Board.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to approve Item IV.B.5 as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

Item IV.B.6. (Z0401104) Victorio’s Restaurant, Inc.’s request for CUP for Alcoholic Beverages for On-Premises Consumption in a BU-1 zone on 1.22 acres located on the east
side of US 1, south of Jay Jay Road, which was recommended for approval by the Planning and Zoning Board, accessory to a restaurant only, with the condition that the parking area be improved to minimum County standards.

Commissioner Scarborough inquired if Mr. Selenica understands the parking area would need to be improved to County standards; with Victor Selenica responding yes. Commissioner Scarborough stated the zoning action, if approved, would not take effect until the parking is approved; with Mr. Selenica responding they have already started fixing the parking lot.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to approve Item IV.B.6 as recommended by the Planning and Zoning Board, accessory to a restaurant only, with the condition that the parking area be improved to minimum County Standards. Motion carried and ordered unanimously.

Mr. Selenica stated it says for consumption at the restaurant only; but the license that he purchased is for consumption and for sale. He stated he is not in the business to sell liquor, but he would like to be afforded the opportunity to sell beer and wine to go. Commissioner Scarborough inquired is this a new request other than the application. Mr. Enos stated the purpose of the P&Z recommendation is so the establishment does not turn into a bar without the restaurant. Mr. Selenica stated his 4-COP liquor license allows him the opportunity, if a customer wants to buy a case of beer or a bottle of wine, to sell that to go. Mr. Enos stated Mr. Selenica is talking about a package sale; and he is permitted to do that.

Chair Higgs stated that is not her thinking. Commissioner Scarborough stated the recommendation is accessory to restaurant only with the condition that parking be improved; they have handled the parking standards; but as accessory to a restaurant only he would assume they would serve someone who ate at the restaurant. Mr. Selenica stated he just wanted it clarified; if someone comes to the restaurant for dinner and they want to buy a bottle of wine, he wants the opportunity to sell it; and the way it reads is for the restaurant only. Mr. Enos stated BU-1 zoning permits that already; the CUP is for onsite consumption; so that is the part that is being limited to restaurant only. Commissioner Scarborough stated if someone comes in, they have to get a meal; and it is not going to become a bar, which was the intent of the motion.

Item IV.B.7. (Z0401105) Kenneth M. and Patricia F. Teague’s request for change from GU to SR on 0.806 acre located on the west side of Adamson Road, north of SR 524, which was recommended for approval by the Planning and Zoning Board.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to approve Item IV.B.7 as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

Item IV.B.8. Esther Teitelbauam, as Trustee. Tabled earlier in the meeting to March 4, 2004 Board of County Commissioners meeting.

Item IV.B.9. J. J. Parrish, Jr., Trustee. Tabled earlier in the meeting to the March 8, 2004 Planning and Zoning meeting and the April 14, 2004 Board of County Commissioners meeting.

Item IV.B.10. Nevins Fruit Company, Inc. Tabled earlier in the meeting to the March 8, 2004 Planning and Zoning meeting and the April 14, 2004 Board of County Commissioners meeting.

Item IV.B.11. (Z0401201) John E. Baker and Jacob E. Baker’s request for change from BU-1 to RU-2-12 on 0.20 acre located on the southwest corner of 27th Street and Highway A1A, which was recommended for approval by the Planning and Zoning Board.

Arthur Nolan stated he is the owner of two condo units at the Beach Villas Condominium on South Atlantic Avenue between 26th and 27th Streets; it is a two-story condominium with 20 units; and he owns two units on the south side of the second floor, which have a view from the balcony of the Atlantic Ocean to the east and to the sunset area of the Banana River to the west. He stated he understands the rezoning would permit a structure up to four stories high; the present zoning is for a one-story commercial building; a four-story structure would be in line of sight of their view looking southwest; and they prize that view. He stated they rent the condo seasonally and throughout the year; and it would affect the rentability of the condo units because they prize the view looking directly west and southwest. He stated presently there are one-story buildings immediately neighboring to the south; there is one building that is a very small bungalow with a second floor that is not very high; and with the new structure, their view in that direction would be hampered. He stated the presenters mentioned a duplex townhouse; he does not know how high that can be; but the Zoning Office advised there could be structures as high as 40 feet. He stated he heard testimony on the previous item that height can be up to 40 feet plus ten feet with a tower; and they might be looking at a rather high building that would obstruct their view. He objected to the rezoning proposal in the interest of protecting the value of his property. He stated he is Vice President of the Beach Villas Condominium Association, but is not speaking in that capacity; they have not had a board meeting recently to consider the Association’s point of view; but there are at least three other units identically situated to him with that kind of view; and there may be others who would be involved. He stated he had some premonition that if it were approved, there would be a time when the lot represented by the Cape Codder might be rezoned and similarly create an obstruction to the west. He stated he heard testimony that the area in the previous consideration is not as highly developed; they prize that; and this is the narrowest point of the island.

Commissioner Pritchard inquired how many units are in Mr. Nolan’s building and on how many floors; with Mr. Nolan responding 20 units on two floors. Mr. Nolan stated it is a very old building; when he stands on his balcony on the second floor he is nine feet off the ground and looking at the Banana River; and any structure that is going to be four stories high would certainly block his view in that direction.

Chair Higgs inquired in this zoning classification, what is the height; with Mr. Enos responding the maximum height is 45 feet. She stated they are requesting RU-2-12; and inquired if there is a lower zoning that would get what they want; with Mr. Enos responding no, the RU-2-12 on the north two parcels is the lowest that will get them two units because the property is just under .2 acre; and the southern two parcels in the next item are slightly over that, so RU-2-10 is enough to get two units on the south part.

Jacob Baker stated it sounds like Mr. Nolan has ocean views and wants river views also; they plan to build on the northern side and sell the south side; and they want a structure at least two or three stories high to see the river clearly. He stated even from their vantage point they have views down the side streets of the ocean; and Mr. Nolan would still have views of the river going both ways, but possibly not directly across from his building. He stated if they do not build that high, they will not be able to see any water at all; if they took two commercial lots, they could turn it into a single-family home for either side; but they would like to make it townhouses or duplexes for each property. He stated he does not want to obstruct any views; there is only one single-family structure and a two-story structure to the south; across the street on 27th Street, there are a couple of larger two-story homes; and then there are condos to the south and some three-story condos across the street. He stated he is not sure where Mr. Nolan is located, but directly across from their property the northern side closer to 28th Street, there are three-story condos right on the ocean; so their project would fit in with what is in the area; and they would like the option to go to 30 to 35 feet high.

Chair Higgs inquired if the applicant is committing to that height; with Mr. Baker responding they want three stories; what they understood was three stories can be to the top of the bearing point and then have the roof; and they would like that option. He stated there will still be an easement between the two properties, so it will be two separate properties. He stated Mr. Nolan will still have views off to either side; and requested the Board approve their proposal for rezoning.

John Baker stated he wants to make it clear if they wanted to, the way it is zoned right now, they could build a single-family home; the next agenda item is the other property; and they are right
together. He stated initially they could build one home on the south and one on the north end of the property; they could built as big as a duplex and still have the same height; and he does not know what difference it would make whether it is a duplex or single-family home as the height could be the same.

Commissioner Pritchard stated the P&Z Board approved this with a unanimous vote; and he has no problem with it.

Motion by Commissioner Pritchard, to approve Item IV. B. 11.

Commissioner Scarborough inquired why is the first item RU-2-12 and the second RU-2-10; with Mr. Enos responding the north parcel is a little smaller such that it needs the extra two units per acre just to get them up to two units. Mr. Enos advised the north parcel is less than .2 acre; the south parcel is more than .2 acre; and that difference is enough, in order to get a duplex on both of those, to create the need for different zoning classifications. Commissioner Scarborough inquired where is the objector’s property in reference to the property to be rezoned; with Mr. Enos responding to the northeast across A1A. Mr. Nolan marked his property on the map.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve Item IV.B.11 as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

Item IV.B.12. (Z0401202) John E. Baker and Jacob E. Baker’s request for change from BU-1 to RU-2-10 on 0.21 acre located on the northwest corner of 28th Street and Highway A1A, which was recommended for approval by the Planning and Zoning Board.

Mr. Nolan stated the property is northwest versus the other property, which is southwest; and his prior objection would apply.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve Item IV.B.12 as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

Item IV.B.13. Bernard R. Boniface and A. J. Hiers. Tabled earlier in the meeting to the February 9, 2004 P&Z meeting and the March 4, 2004 Board of County Commissioners meeting.

Item IV.B.14. (Z0401204) Norman G. and Marie A. Boucher’s request for a CUP for Alcoholic Beverages for On-Premises Consumption (beer and wine only) in a BU-1 zone on 0.14 acre located on the east side of North Grove Street, north of Tangerine Avenue, which was recommended for approval by the Planning and Zoning Board, accessory to restaurant use.

Commissioner Pritchard stated all of the speakers will be speaking in favor of the rezoning. He stated the P&Z Board voted unanimously to approve the item, and he would support that.

Motion by Commissioner Pritchard, to approve Item IV.B.14 as recommended by the Planning and Zoning Board, accessory to restaurant use.

Commissioner Carlson inquired if the parking issue has been resolved. Mr. Enos stated the applicant has addressed it by offering a temporary parking easement, so the question may be whether a three-year commitment for parking is adequate. Commissioner Carlson inquired if it needs to come back when the three-year lease is up. Ms. Bentley stated it is acceptable to put a time limit on a conditional use permit. Commissioner Carlson stated she would agree with the motion if it could include a time limit.

Commissioner Scarborough inquired if it could be that it would come back in three years unless the parking was resolved. Ms. Bentley stated she has not seen contingent timeframes.

Commissioner Pritchard stated this is part of Merritt Park Place; it is a redevelopment area; a significant amount of money has been put into the infrastructure; and the more the Board can do to encourage these types of businesses, the better it is for the community.

Commissioner Carlson seconded the motion.

Commissioner Scarborough recommended the three-year time limit unless the parking issue is resolved.

Commissioner Carlson inquired if the CUP for alcoholic beverages is for beer and wine only; with the applicant agreeing.

Chair Higgs called for a vote on the motion to approve Item IV.B.14 as recommended with a three-year time limit unless the parking issue is resolved. Motion carried and ordered unanimously.

Item IV.B.15. (Z0401205) Edwards Macy-Brenner’s East, Inc.’s request for a CUP for Alcoholic Beverages for On-Premises Consumption (in Units 775 and 777 only) in BU-1 and BU-2 zones on 6.4 acres located on the west side of North Courtenay Parkway, north of Citrus Boulevard, which was recommended for approval by the Planning and Zoning Board.

Chair Higgs stated Tim Pollet submitted a card; with Kevin Markey advising he is present only to provide any needed background.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to approve Item IV.B.15 as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

Item IV.B.16. (Z0401301) James F. (II) and Kathleen P. Durham’s request for CUP for a Guest House in RU-1-9 and RU-1-11 zones on 0.85 acre located on the south side of Budris Road, west of Highway A1A which was recommended for approval by the Planning and Zoning Board.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to approve Item IV.B.16 as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously.

Item IV.B.17. (Z0401401) San Marco Center, LLC’s request for Small Scale Plan Amendment to change the Future Land Use Map designation from Neighborhood Commercial to Community Commercial, and a change from EA to BU-1 on 4.93± acres and amendment to an existing Binding Development Plan on total acres of 14.23± acres located on the south side of Wickham Road, east of Murrell Road, which came to the Board with no recommendation from the Planning and Zoning Board and Local Planning Agency.

Holly Wesche Conn stated she is the owner of Wesche Jewelers; the store is currently located in the Post Commons Shopping Center at the corner of Post and Wickham Roads; and she would like to build a larger free-standing store. She stated in August she and her husband purchased 17 acres of land located on the west side of the Spacecoast Credit Union headquarters on Wickham Road; and a diagram is included in the handout. She stated on the three-acre cleared parcel of the 17 acres, they are planning to build the San Marco Center; and the current site plan shows two buildings, one of which will be Wesche Jewelers and the other an office building. She stated she is present to ask the Board’s help in providing a solution to a problem, which is not having a median cut in front of the three-acre parcel; their concern is the people driving west on Wickham Road will have to make an awkward U-turn in order to enter the center; they anticipate having 80 to 100 employees working in the center; and when customers are added to that number, that is a lot of people on a daily basis traveling in and out of the center. She stated while many businesses operate successfully without a median cut, it is natural for them to want the best accessibility possible. She stated since the median cut is just past their property, people wanting to go to the center would first have to make a U-turn and then immediately get into the right-hand lane in order to turn into the center; and Wickham Road is getting more and more heavily traveled. She stated this trend will continue particularly with the new school, the HealthFirst complex, and the Avenues at Viera shopping development on the horizon; and they thought it would benefit everyone if they could find a way to improve the
flow of traffic in and out of the proposed center. She stated there is a wetland portion of the property adjacent to the piece of property owned by S&S Enterprises; the S&S property is between Denny’s and their property; S&S plans to build an office building there; and it is their driveway that has the Wickham Road median cut and leads into the Denny’s parking lot currently. She stated they hope to connect their parking lot to one that S&S will build, which in turn would be connected to Denny’s parking lot; but to do this, they will have to affect all or part of the two and one-half acre wetland. Ms. Conn stated S&S advised they would be happy to work with them; their site engineer will be contacting the S&S site engineer to discuss the details; and the connection would allow traffic to flow easily between the proposed center, the S&S office building, Denny’s, the 7-Eleven, and ultimately Murrell Road. She stated this would also give people the ability to use the current median cut; and this arrangement seems a reasonable solution that would benefit everyone there. She stated some of the homeowners in the Kingswood Subdivision of Baytree have some concerns, which they learned about two days ago when they received a copy of their summary discussion of opposition document; they were surprised to see the document because a member of the Kingswood Homeowners Association and a member of the Baytree CDD spoke in favor of the project at the P&Z meeting; and the afternoon they learned of the concern, her husband was able to contact some of the homeowners who signed the document. She stated she also wrote a two-page letter trying to address the concerns, which was distributed in the Kingswood neighborhood yesterday. She stated the summary document only refers to their initial request to the County, which involved a driveway to the three-acre parcel to Murrell Road, but that is not what they are currently seeking. She stated the prior owner of the S&S property was not willing to work with them to give them the median cut; but at the P&Z meeting S&S said it was more than happy to work with them, so they are talking about the approximately two to two and one-half acres that are highlighted in yellow on the map. She stated some of the homeowners heard of their willingness to donate the back 12 acres to the zoo for an educational boardwalk; but after reading their feelings in the summary document, she understands why they might have concerns about that; and in conversations with the zoo, the zoo also wants to simply preserve the wetlands and would be sensitive to the homeowners’ issues. She stated they would be happy to discuss giving or selling for a $1 those acres to the homeowners association, the zoo, or any other appropriate entity so no one would have to worry about what goes on there. She stated they have concerns about the disruption of the wetlands area, but they are operating on the assumption they are doing the driveway, which is no longer the case; in their initial request with the driveway they were going to have to affect approximately five acres of wetland; but with the current hope of connecting to S&S, they will only affect approximately two to two and one-half acres and they are not breaking up the preserve. She stated they had an environmental study done on all 17 acres; the two to two and one-half acres is poor quality with less than 10% of it being forested; there were concerns about flooding, but on the current site plan, they have a larger retention area than is required; and if they are able to make the connection with the S&S property, a portion of that land would also be used as additional retention. She stated regarding the concern about a possible second phase, they have no intention of building additional structures on the two to two and one-half acres; they have a warranty deed with The Viera Company stating in writing that they cannot build any structures on that property; and their only interest is accessibility, which involves just parking and retention on the two to two and one-half acre piece. She emphasized they do not need to have the additional two to two and one-half acre area in order to build the San Marco Center; the site plan uses only the three acres that is already cleared; and it allows them to build both buildings as shown with the required parking and retention. She stated their concern is the flow of traffic in and out of the center and the safety of the employees, customers, and others traveling that section of Wickham Road; if they do not have access, it will be a very awkward U-turn and move immediately to the right to get into the center; and if there is a common sense approach and good communication among the parties involved, they should be able to come up with a solution everyone can feel good about. She stated they all want the same results in the end; they share the concerns about handling the increasing traffic flow on Wickham Road and controlling the quality wetlands; and her husband Mike Conn will address the technical issues of how that can be accomplished.

Mike Conn stated they are interested in working with all the parties, the Board, and the neighborhood to find a way to make sense to connect the parking lots of the San Marco Center with S&S and Denny’s; and they have been working with staff to come up with a way within the Comprehensive Plan that would allow the Board to vote to approve the request. He stated there are areas where they believe the door is open to interpretation of the Comprehensive Plan that should allow the Board to vote in favor of their request; Section 5.2.3.2.3 states if a property is within a half mile of the Interstate, there is an exception to be able to mitigate wetlands for commercial property; and that commercial or industrial land activity shall be prohibited in wetlands contained by the property designated on the Future Land Use Map as commercial or industrial after February 23, 1996 and surrounding buffers. He stated at this time, the land they are trying to affect is zoned EA; but it was shown on the future land use map as commercial after the 1996 date; and if it is was commercial during the timeframe, that would allow the half-mile exception. He stated Comprehensive Plan 5.3.A.c talks about the property having to be substantially surrounded; that would be another method by which the Board could allow for mitigation or destruction of some of the wetlands; and it says it must be commercial property that has the infrastructure in place to support commercial enterprise. He stated site work was done on the Space Coast Credit Union parcel prior to 1996; there was not a structure there, but it is his understanding that site work is an infrastructure item to support the commercial endeavor. He stated Denny’s was there and operating prior to 1996; the zoo property that borders their property to the west is a commercial enterprise; it does not say the property has to be commercially zoned; and there is certainly commercial activity taking place at the zoo. He stated Section 5.3.1 says that the County should regulate activities that will result in the destruction or degradation of functional wetlands except where the wetland degradation or destruction has been permitted by FDEP or the St. Johns River Water Management District; and inquired if the Board cannot get its arms around the other two, if they got a permit from St. Johns River Water Management District to affect the two acres, would that mean the County would not interfere with that. He stated if the Board approved the rezoning to commercial, they could go to the St. Johns River Water Management District to attempt to get their conservation easement lifted; and then they would mitigate that land because Section 5.3 says that the County cannot duplicate efforts. He stated they are trying to do what is best; it is a safety issue; potentially 100 people a day would be trying to make the turn on Wickham Road; and this seems insane when there is an easier solution to make it work. He advised Andy Conklin who did the environmental study is present if there are any questions related to the wetlands.

Andy Conklin, Environmental Consultant with Atlantic Environmental Solutions, stated he is present to talk about the type of wetlands being proposed for impact, specifically the wetland area that is portrayed on the easel in yellow; and the wetland type is referenced in the Florida Lane Use Cover and Forms Classification System, known as the FLUCCS Code. He stated his experience with the wetland goes back approximately one year to February 6, 2003; he went out there again on February 2, 2004; and on both occasions he saw the same conditions within the wetland. He stated the wetland is vegetated primarily with cabbage palms at 80% to 90% coverage with other components of Brazilian pepper, wax myrtle, and red maple; there are a couple of slash pines and live oaks on the western edge; and this category is not easy to define in terms of the FLUCCS Code. He stated the FLUCCS Code that is most appropriate for the site is an upland code, which is Code 428, cabbage palm; but he is not saying these are uplands as they are wetlands. He stated the most appropriate code might be Code 16, which is inland ponds and sloughs; in its function and vegetative structure, this area operates most like a wetland slough; and the wetland does not merit classification as any of the five FLUCCS Codes that are restricted from impact according to the Comp Plan by commercial and industrial development. He stated he met with members of staff on February 3, 2004; they looked at the forested wetland map that the County produced in 1985 or 1986; and it was confirmed by staff that this site does not fall within any of the areas identified as being occupied by any of those FLUCCS Codes. He stated it is his professional opinion, with regard specifically to the FLUCCS Code categories, the wetland impacts proposed under this project do not violate the County Comp Plan.

Ron Causey stated he and his wife Francie live on Kingswood Bay in Baytree contiguous to the preserve; they bought the home three years ago; prior to closing on the property they researched the status of the preserve; and they were delighted to find out that in August 2000 the Board approved a binding development agreement and plan with Duda on this 17-acre parcel. He stated they wanted to develop the shaded part; the Board entered into an agreement that mitigated the wetlands, which was 2.2 acres of the 2.98 acres; and the remaining 14.23 acres plus additional offsite acreage for the linear park was donated and put into a permanent conservation easement. He stated they based their buying decision on that; and advised of upgrades they have done to the home. He stated since that time they have seen the drainage problems increase and different developments have been built. He stated their amended plan is aggressive; it will put in additional parking and further exacerbate the standing water problems; and they are not in favor of the rezoning or the change from neighborhood commercial to community commercial. He stated it is going to have a macro effect on the wetlands if the Board approves this; it could open the door to others deciding to amend their binding development agreement and plan; and it will become a litigious matter for the County.

Francie Causey stated one of her concerns would be the wildlife; they are starting to see less since the Space Coast Credit Union went in; and that trend will continue if the Board allows the applicant to do this. She stated it is a privilege to see the wildlife; not many people have that privilege to live on a preserve; and she agrees that it will set a precedent.

Enid Roberts stated she is also a resident of Kingswood Way; and submitted photographs to the Board. She stated her home will be the one most impacted by this development because it will be directly behind her home; she submitted four pictures showing the standing water near her home that is a result of continued development in that area; and she has spoken to the St. Johns River Water Management District staff to try and find out what can be done. She stated the response was the retention pond would not help with the drainage because as they continue to develop the vegetative buffers, the standing water is the result. She stated she vehemently opposes the proposal to take away from the preserve area and to develop that area.

Robert Mastrosimoni, Vice Chair of the Baytree Community Development District and resident, stated they had their general meeting on January 27, 2004; they brought up the proposal; and all of the members of their board voted against it. He noted one member of the board is S&S; and they voted against it. He submitted a letter to the Board; and read aloud, “Re: Zoning Proposal for San Marco Center LLC, Section 15, Township 26, Range 36 Please let this letter serve as the Baytree Community Development District’s notice of objection to proposed rezoning of the environmental area designated for the above referenced property. As a representative of the citizens of Baytree community, the district commissioners are opposed to any land that was previously designated an environmental area pursuant to and approved binding development plan later being rezoned for commercial use. It is the District’s position that the binding development plan should be binding on all citizens and parcels of land in Brevard County and not allow a subject to change, especially when the alternative plan of ingress and egress is available to the commercial enterprises. Signed by Chair Nancy O’Hare.” He stated this is just a matter of inconvenience; and no wetland should be rezoned commercial just to deal with a matter of inconvenience. He stated the major inconvenience being discussed is ingress into the San Marco Center; that ingress is only from westbound traffic on Wickham Road; and there is a natural traffic circle less than a mile up the road where the traffic can flow and come to the eastbound section. He stated if they are going to start filling in wetlands for what is considered an inconvenience, then there are going to be problems. He stated as a board member of the Baytree CDD, their biggest problem is the permit with the St. Johns River Water Management District; they are having tremendous drainage problems in Baytree; and any time there is building on the wetlands, it will make it worse for Baytree.

Holly Conn stated they understand and are sympathetic to the feelings of the homeowners; but she has a little trouble understanding some of the concerns because the distance between the back of their property and the neighborhood development is 12 acres. She stated when they had their meeting, the board of Baytree CDD was under the assumption that what they were requesting was the driveway; but there is a big difference in doing the driveway and doing one area. She pointed out the neighborhood and the proposed development area on the map; and stated 12 acres is a fair amount of distance between the development and the neighborhood as far as the wildlife is concerned and that type of thing. She stated as far as the inconvenience issue, it may be true that people can go down a half a mile and use the traffic circle, but the reality is that people are not going to do that; they are going to try to make the U-turn and then turn into the property; and it is not just 10 or 20 people, but 80 to 100 people working in the center every day plus customers who are going to make that awkward U-turn and zoom over to
the right-hand lane. She stated there is an alternative that seems to be a much better traffic flow for everybody; they are not building any additional buildings there; and they just want to be able to connect so traffic can turn in and go to the S&S parking lot, and turn right and go into Denny’s or left and go into the San Marco Center. She stated people could even turn in off of Murrell Road and come through if they chose to do so because they hope to connect the
driveway in the back as well as the front driveway. She stated she lives in Suntree on a preserve; she understands the people’s feelings about the wildlife and that type of thing, but this is a much better solution for everybody. She stated there is some discussion about whether the wetlands even fall in with the FLUCCS Code criteria; and it seems to be a common sense approach that would serve everybody best.

Mike Conn stated they know this was part of a prior mitigation plan; they understand they will have to provide additional mitigation to compensate for the area; and all they are gaining is access, and not anything that is going to make them any money. He stated they are spending money to create a safer location. He stated they have spoken to many of the people who signed the protest letter; after talking to them, they said they could support what they were proposing; and a couple of residents said they would even buy the rest of the 12 acres for $1 and pay the maintenance fees and everything. He stated even Mr. Mastrosimoni suggested the possibility of the CDD getting on board, if they gave them the property; they thought doing something with the zoo was fine; but if the homeowners association or the CDD want the property to insure that nothing ever comes there, they would be happy to work with them to make that transition happen.

Commissioner Carlson stated staff’s report talks to the lack of compatibility with the Comprehensive Plan; and inquired if there is a substantially surrounded piece of property now; with Ms. Bentley responding the Board should get its expert testimony from its experts, which would be staff who have looked at the site and examined the land records. Sherry Williams of Natural Resources Management stated it would not meet the current definition of substantially surrounded because the criteria speaks to lands developed prior to 1996; the definition of substantially surrounded within the Comprehensive Plan Glossary speaks to industrial/commercial lands that abut the subject property, and that lands across a road should not be considered. She noted it does not mention whether it is public or private roads. Commissioner Carlson stated Section 5.2.f.3.c says, “the wetland functionality shall be maintained and protected by a 15-foot natural native vegetative buffer and for isolated wetlands by a 50-foot natural native vegetative buffer”; if the wetlands are out of the picture because they do not meet the Comprehensive Plan requirements, they are talking about the little slip of road that is by Wickham Road; and inquired if that is going to be eligible for any purpose because of the buffering required by the wetlands in the Comprehensive Plan. Ms. Williams inquired if Commissioner Carlson is speaking to subparagraph 3 in the policy; with Commissioner Carlson responding right, where it talks about wetland functionality and how buffers are required; and she is assuming that because this was not an isolated wetland that was part of a much larger functional wetland, based on what was discussed in 2000, that was why the Board wanted to keep it all intact. Commissioner Carlson inquired if that applies after the Comprehensive Plan language is applied, and the Board cannot address that either; with Ms. Williams responding
that was in the mitigation plan. Commissioner Carlson inquired if that means it is all part and parcel; with Ms. Williams responding that is all part and parcel of the conservation easement that was set aside as mitigation for the filling of the original three acres of wetland that the Board approved in 2000. Ms. Williams advised that mitigation plan for the parcel showed an upland buffer along the north edge and portions along the western edge; that was all considered part of the mitigation plan; and all that area was placed under a conservation easement and accepted as mitigation for the authorized filing of the three acres of wetlands, plus an additional offsite parcel that was donated. Commissioner Carlson stated she understands that; but she is saying if the Comprehensive Plan language is applied, which is basically if it is not substantially surrounded, that they cannot take any of it, and also it includes the buffer; and inquired if that is correct. Ms. Williams stated that particular policy would not apply to this property anyway because that policy only applies to properties that were designated as commercial/industrial prior to 1996. Commissioner Carlson stated she does not want to start a precedent; it does not appear that they can do anything about the wetlands based on the Comprehensive Plan because of the arduous task that it was to get it in place; but the applicant brings up a very important issue in regard to traffic and those problems. She stated the only way to remedy that is to make sure there are no U-turns at that intersection, so people will be forced to go straight and turn at an appropriate place where it is safe. She stated they are going to have potentially 80 people working there; they can do that on the site they have; as the applicant said, they were trying to mitigate some of the flow problems that they might see; but at this point she does not see where she could support changing the binding development plan because it does not qualify under the Comprehensive Plan. She stated she would move to deny the request and potentially put U-turn signs up at the one point where the potential U-turns could occur.

Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to deny change of zoning and Small Scale Plan Amendment and direct that no U-turn signs be put up at that point.

Commissioner Scarborough stated the applicant has amended things in some of the comments; but what he finds difficult, if this is an access issue, is that the person who has the property who is offering access is not present. He stated his site plan has got to be in place to find out where it is if they are going to go for just an access; that needs to be clearly defined; and they do not need to take the vast parcel of property and rezone it. He stated it appears if there was to be something of that nature, it is far from being before the Board to even deal with the dialogue; and not only for the reasons Commissioner Carlson stated, but this as well, he cannot support it.

Commissioner Pritchard stated he is looking at different drawings; and he wants to make sure he fully understands what is being talked about. He inquired if the three-acre parcel mentioned is Parcel A, which is the cleared parcel, and is that where the applicant intends to build the development; with Mr. Conn responding that is correct. Commissioner Pritchard inquired if the reason for the wetland issue is to create an access through the S&S driveway, which is shown as a gap; with Mr. Conn advising that is correct. Commissioner Pritchard inquired why they have to look at the entire parcel, and not just look at the driveway. Mr. Conn responded that is what Commissioner Carlson was talking about; and they would be happy to
get that. He stated they were looking at doing this because there is currently a driveway that runs behind Denny’s and 7-Eleven; it is almost like a roadway to Murrell Road; and they thought it would be a better situation to allow people to come from a traffic light and come in from Murrell, which would bring them behind all the buildings. He stated what Commissioner Pritchard is talking about is an upland that was supposed to be created at 45 feet or something like that in the front that was shown in the Comprehensive Plan that never happened; there is a ditch there; there is no upland buffer; and they would enjoy the opportunity to do something to rectify that to at least put the driveway in across the front. He stated he does not know what happened; but Mr. Conklin can speak to it better; and there is no upland buffer there.

Commissioner Carlson stated she asked staff that question because it did not look like upland; and what staff told her was that it has now become a wetland because there was no upland buffer to start with. Mr. Conn stated his understanding was they were supposed to have created the upland buffer; but it apparently was never created; and he does not know if that upland buffer would qualify as a wetland in doing a mitigation effort and allow for driveway access that way. He stated they think the other solution is better, but certainly that idea would be wonderful as well.

Commissioner Pritchard stated what he got from what Commissioner Scarborough said is that the traffic safety issue is something the Board is concerned with; he does not want to see U-turns; but the Board cannot legislate U-turns because people will do them; and the point is how can the Board effect something safely with the least amount of impact. He stated this could be one of the ways, to have the principals of S&S come to another meeting. Mr. Conn stated they would be happy to table it. Commissioner Pritchard stated they need to have the principals of S&S come to talk about this; they need to look at the property and provide an access through the property, not on the back; and he understands the concerns of the neighborhood, but is concerned about the issue of making U-turns along there. He stated he assumes the median strip has a stackable left turn for vehicles; it would be safer; and they would be able to pull in, then cut across and access the property. He stated that makes more sense; and he does not support the motion to deny, but would be more in favor of a motion to table.

Motion by Commissioner Pritchard, to table Item IV.B.17. Motion died for lack of a second.

Chair Higgs called for a vote on the motion to deny IV.B.17. Motion carried and ordered; Commissioner Pritchard voted nay.

Item IV.B.18. (Z0311501) R. A. Connor Paving, Inc.’s change from IU and IU-1 to all IU-1 and a CUP for a Solid Waste Management Facility (Air Curtain Incinerator) on 60.25± acres located on the south side of Eau Gallie Boulevard, west of I-95, which was recommended for approval by the Planning and Zoning Board excluding wetland areas.

Bruno Ferraro stated he represents R. A. Connor Paving.

Chair Higgs noted there are no cards, but the District 5 Commissioner is not present. Commissioner Scarborough inquired if staff heard anything about Commissioner Colon wanting this tabled or anything; with Mr. Enos responding no.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to approve Item VI.B.18 as recommended by the Planning and Zoning Board, excluding wetland areas. Motion carried and ordered unanimously.

The meeting was recessed at 8:26 p.m. and reconvened at 8:37 p.m.

Item IV.B.19. (Z0310304) Charles R. Stack, Trustee, and Gene Kubicki’s request for change from SR to EU-1 with an amendment to the existing Binding Development Plan on 178.69 acres located on the northeast corner of Valkaria and Weber Roads which was recommended for amendment to the Binding Development Plan for 1/4 acre minimum lots, and development to comply with the open space subdivision regulations in Section 62-3000. The rezoning request was withdrawn by the applicant at the public hearing.

Attorney Mason Blake, representing Charles Stack and Gene Kubicki, stated the item as listed is not correct; at the P&Z meeting, they withdrew their request for any change in zoning to the property; and the only remaining request is to modify the existing binding development plan, which currently requires lots to be a minimum of one-half acre in size. He stated they are requesting a modification to allow for one-quarter acre and larger lots, if the property is developed in accordance with the County’s Open Space Subdivision requirements. He stated Mr. Stack acquired the property in 1985; in 1991 it was rezoned from AU to SE with a binding development plan that permitted 178 lots; and there are various requirements in the binding development plan including a 25-foot buffer on Weber Road and a 25-foot buffer on Valkaria Road. He stated they are not asking for any of those changes; and the single change would be the minimum lot size if, and only if, the County’s Open Space Subdivision requirements are met. He stated in 2002, the County passed a Floodplain Protection Ordinance No. 02-08; as a result, 178 lots could no longer be developed on the property; and in February 2003 Mr. Stack filed a Bert Harris Act claim with respect to the property asserting the Ordinance unfairly burdened the property. He stated in connection with that claim, they filed an appraisal with the County that shows the effect of the Act was to reduce the value of the lot by $630,000; in an effort to resolve the claim, they have been working with County staff; and they concluded the best way to approach resolving the claim was to change the zoning from SE to EU-1, which provides for one-quarter acre lots and then modify the binding development plan to allow for minimum quarter-acre as opposed to minimum half-acre lots. He stated during the process of working with the County staff and before they got to the first P&Z meeting, it was suggested to them that instead of rezoning, they might want to look at utilizing the open space requirements because the existing zoning, if the open space requirements are utilized, allows for lots as small as one-quarter acre in size; they spent three months working with County staff spending money to see if they could do that; and it was thought to be a good thing, by utilizing the Open Space Ordinance, avoiding a rezoning, and creating a great deal of open space, which would make the development more compatible with the area. Mr. Blake stated they postponed two P&Z hearings and paid an additional $4,000 in reprocessing fees because they had to work through a number of calculations; it is a complicated Ordinance, and there are other Ordinances that interact with it; at the end of the day they ultimately succeeded in making the open space requirement work; and the P&Z Board voted to recommend approval of the request. He stated there are a number of factors that support the request; in addition to settling the Bert Harris Act claim, it demonstrates how well the open space requirements work; and he has a copy of the proposed plan showing how the homes will be built to wind in and through large open spaces. He stated uplands as well as wetlands are preserved; the natural wetland connections are preserved; a large area is provided to accommodate an eagle on the property in compliance with the Eagle Management Plan that has been issued; and the plan achieves the open space and does not increase the density of the property. He stated the Small Area Citizen Planning Committee, which is studying the land use regulations of this area, has recommended that all subdivisions in the area utilize the County’s open space planning Ordinance; and this goes along with the citizen recommendations that have been made. He stated except for the change in the lot size, all provisions in the binding development plan are in place; concerns were expressed by citizens at the P&Z hearing; and there will be concerns expressed tonight. He stated one concern is whether there has been an increase in density; but they are not increasing density. He stated another concern is what is going to be built; and they are willing to make a commitment in the binding development plan that there will be single-family residences with a minimum of 2,000 square feet in size. He stated the overall density is one unit per acre; but utilizing the open space Ordinance they will have compact lots; and they are willing to increase the size of the lots to the extent possible. He stated they have created a buffer around the side to try to increase the number of lots; he does not have an exact number tonight, but a large number of them are one-half acre or over, which is currently permitted. He stated the development does not affect the eagle; they are complying with the Eagle Management Plan; and nothing in the request is going to allow them to develop any closer or farther away from the eagle. He stated they spent $4,000 on a reprocessing fee to work with County staff to try to get the plan put together; and requested the Board authorize a reimbursement of the reprocessing fee. He stated they worked very hard to do what the County is asking people to do, which is to develop maximizing open space, providing the best area for flora and fauna to thrive and survive; and they have made a sincere attempt to work with the County to resolve their respective concerns and produce a quality product. He stated he knows there will be a lot of comments from the audience; and he would like a few minutes at the end for rebuttal.

Chair Higgs stated there are 47 cards submitted; each speaker is allowed five minutes; and encouraged speakers, if their comments have already been made, to acknowledge that the comments have been made.

Theo Adkins declined to speak; and stated his views are the same as Ms. Kinney’s views.
Marcelle Kinney stated she is a resident of Valkaria, and is present to speak in opposition to the request for many reasons. She noted she sent a letter to the Board earlier this week with the minutes from the 1991 P&Z meeting as well as the Board meeting attached. She stated when the applicants came to the Board in 1981, they requested help with the 178 acres because there was a bald eagle and wetlands; and that is the reason the Board allowed them to go to SR zoning with the binding development plan that limits them to 178 homes. She stated the number was defined at 178 because of the Comprehensive Plan; those were the arguments then; and they are making the same arguments today. She stated the Board gave them a lot in 1991; they are using the same arguments about the bald eagle and the wetlands to try to get more; but they are also confusing the issue saying that they are using the open space Ordinance, which they are not. She stated in Valkaria, there are all agricultural or rural residential zoning; the minimum lot size is 2.5 acres in AU and one acre in rural residential; and the acreage of the surrounding properties is from 1.29 acres to 22.48 acres, with nothing close to a half or quarter-acre lot around it. She inquired if they came to the Board today with a 178-acre parcel zoned AU, wanting to utilize the open space plan, what would they be allowed to do; and advised that is an important comparison. She stated with AU zoning under open space, they would be allowed to put a maximum of 88 homes on the land; under the open space Ordinance they would be able to put one house per minimum one acre; and because of the clustering, they could have a 25% bonus in density, which is what gets them to the 88 homes. She stated she verified this with staff today to make sure she calculated it right; and emphasized the Board gave them far more in 1991 than they would ever get if they came in today. She stated the Board should never let them change their binding development plan to go down to one-quarter acre lots because it is far more than they deserve and is completely inconsistent with the character of the community. She submitted copies of a chart; and stated she wants to go over the problems and inconsistencies with the binding development plan. She noted Planning and Zoning approved changes to a binding development plan without seeing the BDP; the BDP she got from staff was received by the County on August 27, 2003; and there are many things wrong with that. She stated the binding development plan says they want to change to EU-1 zoning, but they have withdrawn that; however, there are still nine problems with the plan. She stated the statement that they can only put 146 lots on the parcel has not been proven; and she believes it is false. She stated staff has shown the applicants several designs by which they can put 178 units of one-half acre size on the parcel, thereby not needing a new binding development plan or quarter-acre lots, so their lawsuit is for the birds. She stated the first whereas on page two is false; and in the third whereas, the County does not need to agree to their binding development plan in order to settle the claim. She stated the written statement requesting EU-1 is inconsistent with what they said; and they said they want SR and to abide by the open space Ordinance. She stated the 25-foot landscape buffer statement is inconsistent with the site plan they provided to staff today; they should have provided the site plan before as the public has not been able to study it; and the site plan is not specific as it does not define what size any of the lots are.

Commissioner Scarborough requested the speaker be allowed additional time.

Ms. Kinney submitted paperwork; and stated the site plan shows a 50-foot buffer on Valkaria

Road, which is great; but it is not what the binding development plan says; and they should have a very specific and consistent site plan. Ms. Kinney stated the opaque buffer was not defined in the 1991 or new binding development plan; it should say that an opaque buffer is very, very dense; and requested it be specified that the buffer be native as virtually everything in Valkaria is native. She stated it says they will have lots from one-quarter to as large as one acre in the August binding development plan; but they do not agree to promise to have any one-acre lots; and this deviates widely from the 1991 agreement where they agreed to have one-acre lots. She stated they stated they wish to abide by the open space Ordinance; however their one-quarter to one-acre plan does not specify that; and Section 14.E.2 of the open space plan says that a development needs to match the subdivision around it. She stated she talked with Planner Alan Woolwich about this; it is why she provided the chart showing the size of the parcels; and there is no parcel anywhere near the property that is half or quarter-acre. She stated the smallest property is .93 acre and the largest is 22.48 acres; none of the buffers outside are anything close to 2.5 acres, which is the average; and this is a flaw in the Code that the Board needs to work on because if someone takes an average of all the houses around and then looks at the 22.5 acre parcel next door, that is going to skew the average. She stated the Board needs to work on that some; it is within the Board’s jurisdiction to do that; it needs to look at the size of the parcels around it and come up with an average number, throwing out the 22 acres and the one acre; and that is how it is not consistent with the open space Ordinance. She stated their agreement says nothing about abiding with the open space Ordinance; and it is just a verbal agreement. She stated the site plan received this morning is not specific; the applicants must offer a site plan that is specific in terms of lots sizes so everyone can see what is being agreed to; and the site plan should be consistent with the binding development plan, which it is not. Ms. Kinney recommended the Board vote no on the binding development plan for the reasons she gave; stated the Board should not agree to quarter-acre lots regardless; and it should send this back to Planning and Zoning and require it consider a written accurate and detailed site plan. She stated that information should be made available to the public at least two weeks before the P&Z meeting when it is considered; and presented a visual comparing the size of her lot at 4.2 acres with lots under AU of 1.4 acres, what was approved in the 1991 plan, and what is being requested today.

Timothy Lawry stated he agrees with Ms. Kinney.

Tom Semas stated he lives where they just put the bridge in; he appreciates it as he does not have to go east to go west now; but he did have a problem with porta-potty out front and the fact that the ditch has still not been cleaned. He stated they worked for their house and acreage; they could have lived in a neighborhood with 100-foot lots; there are plenty of them on the west side in Palm Bay; and there is no problem with finding a small lot if one wants one. He stated the developer has a nice plan; but they have 4.5 acres; and if anybody needs a smaller lot, there is no need to go looking where the homes are with the larger lots when there is so much available to the west.

Tommy Strasser stated many years ago he served on a Planning and Zoning Board; every request was reviewed with regard to the three C’s, consistency, compatibility, and character; the
applicant’s representative has already spoken to consistency; but he does not think the request is consistent with the area, which is rural in nature, open, and spacious. He stated the quarter-acre zoning is not consistent with the surrounding area. He stated in terms of compatibility, there are signs on the road warning to watch out for the horses or the sand hill cranes; and he does not think that quarter-acre zoning is compatible with the area. He stated the last issue is character; it deals with aesthetics and perceptions; and just as the Board would not permit a drug rehabilitation center to be next to a daycare center, he does not think the quarter-acre type of high-density housing should be allowed with the type of spacious zoning they have in Valkaria. He requested the Board deny the request.

Walter Bowles stated he is a property owner in Valkaria; and he agrees with what the previous speaker said. He stated the developer said the current development was designed to be more compatible with the area; he does not understand what he meant by that; and he obviously has not looked very much at the area of Valkaria. He stated he and his wife purchased a 5.28-acre piece of property to build a single-family home; the developer’s density would allow 20 homes on the property where he wants to build one home; and it is not compatible in any way. He stated the applicant said he had the right to build 178 homes, but he is not sure that is true. He stated the applicant said this does not increase the density of the property; but the reason he is here tonight is because the developer does want to increase the density; he is not able to reach 178 homes with the zoning he has already been granted; and he is coming back asking for the small lots in order to reach the higher density he cannot reach otherwise. He stated what is being requested is a density increase, not from what was previously granted, but from what he has been able to reach. He stated the applicant also offers whatever commitments are needed in the binding development plan to support this; but based on their interpretation of the word binding that does not seem to be any commitment whatsoever. He stated he was amused to hear about how hard they worked and the $4,000 they spent, compared to what they want to do to the community.

Del Yonts stated he currently owns six acres in Valkaria with one house; and using the analogy just heard, he could put 24 houses on that with quarter-acre lots and make money doing that, which is the developer’s purpose. He stated they bought land in Valkaria so they could live in a rural setting; their rural community has horses and whatever animals people want to have around; and that is not possible with a bunch of quarter-acre lots. He stated the applicant mentioned a small area study for the South County; he does not know if that was for the beaches or Palm Bay, but he was on the Valkaria Small Area Study Committee, which never said it wanted to have any quarter-acre lots in Valkaria. He stated there would be 178 septic tanks in a concentrated area; and inquired what would that do to the water supply. He stated he understands they will have city water; he likes his well water just fine; and inquired if this is allowed to go in, would it affect everyone’s water, especially those that are close to it.

Linn Walters stated Marcy Kinney spoke more eloquently and knowledgeable than he can; he was a victim of the tabling at the second P&Z meeting; and then he was out of the country when this came to the P&Z Board. He stated the problem he has is with the methods used to get to today; the developer went to the P&Z meeting and changed his request, which was for
rezoning; then they went into the quarter-acre lots; and there was not even a concept plan available for the P&Z Board to look at to make a knowledgeable decision. He stated there is a definite change in density; the fact that they are not trying to spread the development over the whole parcel is immaterial in his mind; quarter-acre lots will be as dense as it can get; and he is not in favor of quarter-acre lots. He stated he does not know what the concentrations of septic tanks are going to do to the wetlands and the other parcels that are nearby; and requested the Board deny this change, or at the very least send it back to the P&Z Board to have a chance to look at a real plan that shows the quarter-acre lots and where things are going to go.

Jim Tonti stated he moved here from Phoenix with his wife and children three and a half years ago; they found property in Valkaria; they used to go camping in Arizona all the time; and one of the things that amazed them with Valkaria is that it is just like camping year-round. He stated when they first moved to the area they learned that everybody on the street was an original owner; there is enormous stability; and it has that stability because of the lifestyle of the Valkaria area, with privacy and neighbors who cherish the same features. He stated residents of homes on quarter-acre lots cannot hold these features in as high regard; and requested the Board deny the request.

Dylan Yonts stated he wants to address the eagle’s nest; and presented a topographical map of the area showing where the nest is located directly in the center of the property. He stated the area that was mentioned to be set aside for the eagle at the P&Z meeting was 30 acres; the area an eagle needs to survive is a minimum of 40 acres; and the area that needs to be relatively undisturbed is upwards of 162 acres. He stated 30 acres is nowhere near what the eagle needs to survive; and if development continues, all the natural habitat of every creature out there is going to keep disappearing.

Bobby Putnam stated he lives in this area; when he was a child, they moved away into the City of Palm Bay; and they are very glad to be back in the area again with a 1.25-acre lot. He stated when they lived in Palm Bay, the lots were at least a third of an acre, which is bigger than the quarter-acre lots being proposed. He pointed out the area on the map; stated Valkaria Road, which goes from Babcock to U.S. 1 is a very scenic road; and he hopes the buffer is dense and natural because that is part of the beauty everyone enjoys, seeing the wild turkeys and wild deer on the side of the road. He stated the I-95 overpass is almost immediately west of Weber Road; it was built in 1969; and he does not know how much they planned for numbers of people at that time; but it would probably need to be widened eventually. He advised not every house has just one car; he lives with his parents because he is in school and each of them have a car; and a five-person house may have five cars. He stated when he comes from Malabar down Weber Road, there is no real way; he stops at I-95 to check; and that would be a concern because it is not going to be big enough to put a stoplight. He stated even the overpass over Palm Bay Road is not the safest; advised of a friend who had an accident there; and commented on worrying about his path to work and school and taking U.S. 1. He stated he has seen the eagle in the area but had not seen the nest; he heard about the eagle’s nest a few days ago; and when he went to research it, he could not find any plans other than the briefly
mentioned 30-acre set-aside. He stated he talked to Fish and Game and other outspoken members for the eagles, who advise it is a minimum of a 750 feet primary circle around the nest and then an outer circle that is 1,500 feet.

Commissioner Pritchard inquired what is the ribbon for; with Mr. Putnam responding a few years ago he made the rank of Eagle Scout, and he continues to be active with Boy Scout Troop 365. Mr. Putnam stated he is an Assistant Scout Master; and he had to miss a meeting of the Order of the Arrow, which is the honor society for the Boy Scouts where they promote other troops to help the younger boys so they understand the need to be more outspoken in their community. He stated Order of the Arrow is also deemed the responsibility of promoting camping and outdoor activities to the troops themselves because Scoutmasters are busy with other things.

Gwyn Zino stated she lives in Valkaria in Bear Creek Subdivision; her property is just over an acre; they are fortunate enough to live on a hill; and behind them is a horse farm. She stated they enjoy that view; it is a wonderful display, especially for her girls; and to think that an area such as this may come in with quarter-acre lots and destroy what they have and set a precedent that allows other similar subdivisions would be awful. She requested the Board not reconsider the binding development plan.

J. C. Taylor stated he wishes to declare his objections to a high-density development on the northeast corner of Weber and Valkaria Roads; Valkaria has developed into an exceptional area for the good life with enough space between homes to enjoy some privacy, the chance to enjoy nature and the surroundings, and a certain independence from civilization; and the rule of thumb has been larger lots and a willingness to tolerate the jungle environment, the odors of manure, and to pay the taxes that accompany that choice. He stated homes along River Road, Corey Road, and Valkaria Road have been exceptionally nice, and maintained to last years; anyone familiar with the area recognizes the upgrading of homes and lots in this area; and to suddenly reduce the lot sizes and construction standards for Valkaria is a slap to those who have spent their time and money maintaining a highly-desirous lifestyle. He stated he will never be convinced that his property will not be looked at differently when a high-density development is built nearby; and he is disappointed that the County planners even allowed the half-acre minimum lot sizes that are already approved. He stated he has several technical concerns regarding infrastructure; Weber Road has become a raceway; wildlife, bicycle riders, walkers, and horse riders are now endangered, not only because of the speed but because of the volume of traffic; and a development, as proposed, will require widening of both Weber and Corey Roads very soon. He stated they are very narrow roads; and inquired who would pay for that widening. He stated traffic in the area is going to be a problem not only on Valkaria Road but on Malabar Road as well; present traffic on Weber Road has many drivers thinking about a traffic light at the Malabar intersection; from personal experience, he thinks Corey Road is experiencing the same problem; and a light at each intersection for Valkaria Road would be expected. He inquired who will pay for that. He stated the water table of the proposed development site is high; introducing a well and septic tank on half-acre lots, let alone quarter-acre lots would be jeopardizing the water supply for everyone in the area; and they cannot keep
digging septic systems into the water table. He stated Palm Bay is already suffering from this problem; and the County planners should not ignore the situation that is happening on Weber Road. Mr. Taylor stated community water and sewer should be provided to any high-density development; but inquired at what cost and paid by whom. He inquired where are the power lines coming from and who will pay for them; and stated he will fight having a big concrete high voltage pole in front of his property, if the intent is to come down Weber Road. He suggested, if the project is approved, as a contractual obligation, the developers and their families should live in the community for a period of five years; stated that way the great things brought about would be shared by those who created the development; problems brought about would also be shared; and he would suggest a member of the County planners also be required to move there for the same reason. He requested the Board maintain Valkaria as a safe rural place to live; and stated if anything happens to the birds, his two grandsons will want an explanation.

Martha Watson stated she lives in the Valkaria area; it is a gorgeous rural area; and they residents love it that way. She stated the quarter-acre lots would stick out like a sore thumb from what they have now; and it might set a precedent for more land being used for quarter-acre lots. She stated it just does not fit in; and she wants to preserve what they have.

Ron Rincones submitted paperwork to the Board; and stated he lives on Corey Road in Valkaria, approximately a mile from the proposed development. He stated when he looked at the plan this evening, he realized the dimensions are more like a fifth of an acre although people keep saying quarter-acre; and that is smaller than the Palm Bay lots. He stated there are approximately 48,000 vacant lots about a mile and a quarter west of the proposed development on the eastern perimeter of Palm Bay; there is no need for this development; and how the Board has come to this point is beyond him. He stated a Board years ago mandated 2.5 acres in a land use plan; tonight the Board is talking about a fifth of an acre; and inquired how did it get to this point. He requested the Board reject the entire plan and let the applicant start from scratch, negotiating from 2.5 acres per unit.

Dale Steele stated he lives in the Bear Creek Subdivision; the Malabar/Valkaria/Grant area is designated as a low saturation area, meaning nothing less than one-acre lots; and the Board should be commended for its foresight in trying to preserve the natural environment as much as possible. He stated this has been left as a rural environment by intent; the new request to subdivide two lots smaller than the norm for the area would severely impact the natural environment; and he has seen the bald eagle as well as otter, bobcat, fox, osprey, wild pig, sand hill cranes, deer, and numerous turtles and tortoises in that area. He stated it is a beautiful environment; and the County would have done well to have made this a wildlife preserve. He inquired if any environmental impact studies have been done of the area; and stated if not, he would recommend an independent study. He inquired what kind of tax impact will the current residents have to support importing water and sewer services, additional roads, police and fire services; stated he does not believe the roads can support the additional impact when one considers at least two cars per home; they have already gone through this sort of thing and know they have more traffic on the roads; and they like the community as it is as a low saturation area. He stated if they wanted the hustle, bustle, and overcrowding, they could have moved to Orlando, Tampa, or West Palm Beach; and requested the Board consider the existing community when making its decision. He stated Brevard County does not want to be overcrowded like Dade County; but if they are not careful, it can get that way before anyone realizes it.

Scott McMiller stated he lives in Pomello Ranch Subdivision; his property is approximately 1.2 acres; when he and his wife moved there six years ago, they were stationed at Patrick Air Force Base; and they decided to live in Valkaria because of the larger properties. He stated they like it out there in the rural area; he puts up with a 40-minute drive every morning to work because he wants to live in Valkaria; and if subdivisions such as the one proposed keep being built, what he planned to use as his retirement home will go away. He noted he and his son watched three deer walk through his yard on Sunday.

Rob Bolton stated he is a Valkaria resident and a licensed engineer in the State of Florida; only Commissioner Scarborough may have been on the Board when he moved to Valkaria in 1991; they have an active homeowners association although it mainly relies on email or letters; and in 1991 they were fighting a commercial property on the south side of Valkaria Road, west of I-95 before getting to Babcock Street. He stated the current issue came up at that time; the homeowners association felt that when looking at the development, it would be similar to Bear Creek; and there were no concerns because it would fit into the character of the neighborhoods of Valkaria. He stated it does not fit in today with the character of the Valkaria area; it does not depict the proper amount of stormwater drainage that is going to be required; and it is also going to require the running of water lines to that site, which will mean negotiating with the City of Palm Bay. He stated he worked for Palm Bay for nine years; and to get water to that site, they are going to have to sign a pre-annexation agreement, which is another concern of the people that are going to be in this neighborhood. He stated this comes down to money; at 146 lots, the developer would get approximately $10 million; but at 178 lots, he would get $12 million. He stated eight years ago he and the neighbors had an issue with Broken Glass turning into a halfway house; he is glad the Board voted in favor of the homeowners at that time; and he hopes the Board does the same tonight.

Mary Morrison stated she is an Air Force Service member currently serving at Patrick Air Force Base, as is her husband Scott McMiller; and she plans to retire here in two years. She stated they moved to Valkaria in March 1998; it is 27 miles from their house to Patrick Air Force Base; when looking for a home they specifically desired a rural setting; and they looked as far north as Mims and as far west as Orange County. She stated their realtor recommended property in South Brevard; and they fell in love with the Valkaria area because all the homes were on one-acre lots or larger. She stated they built a barn on their property; the nearest grocery store is eight miles from their home; and had they desired to live within a community consisting of quarter-acre lots, they could have bought property much closer to the Base and foregone the 45-minute commute. She stated Commissioner Colon, who is not present today, was the only member of the Palm Bay City Council who voted to retain a rural community atmosphere when the Council desired to build a shopping center at Babcock and Valkaria. She stated the
developer has no interest in keeping the rural atmosphere inherent on Valkaria Road because approving his request for quarter-acre lots increases his profit. She requested the Board keep Valkaria as a rural and horse community.

Paul Schneider pointed out his house on the map; and stated the plan shows a lot of trees and natural vegetation; but he saw a plan for a community on Dairy Road that showed all kinds of trees and acreage, and now the whole area is cleared. He stated he is not sure if there are going to be trees that stay there or if there are trees that are going to be replanted; that is a big concern; and the first bulldozer that pulls up, the eagle is not going to stick around. He stated he and his children enjoy sitting on the lake and seeing the eagle come across; and he wishes he had a recording of the eagle’s scream because if the Board heard it, it would definitely vote against the request.

Michael Hoffman stated he supports everything that has been said here tonight about not approving the subdivision; he came to Valkaria in 1996 and heard stories about the battles that had been fought in the past to maintain the lifestyle there; a lot of effort has been put into maintaining that lifestyle; and he would like to see it remain that way.

Frances Putnam commented on the beauty of Valkaria; and stated she has lived in Brevard County all her life, and watched the development slowly creeping in and taking away the natural environment and wildlife. She stated her son Bobby spoke earlier; he is an Eagle Scout and works with the Boy Scouts; and she is very proud of him. She stated they have 1.4 acres, which is one of the smaller lots; but her son has the Boy Scouts out there all the time taking nature walks and so forth. She stated there are a lot of children living in the cities who do not see much wildlife any more; and it would be a shame, not just for the residents of Valkaria, but for all the resident of the County if the Board approves this request, allows quarter-acre lots, and destroys this natural area.

Curt Lorenc stated he is a resident of Valkaria; and submitted a copy of the binding development plan so the Board will know what was said there. He stated on the number of units, there is no guarantee for 178 units; it says a maximum of 178 units; and as far as lot size, what is stated is between one-half acre and one acre, going on to say there will be no lot less than one-half acre. He stated at the time the agreement was entered into, the developer got a better than average deal; the half-acre lots are inconsistent with the land use of the area; and they are inconsistent with the Comprehensive Plan. He stated one gentleman wanted to hold them to two and one-half acre lots; and suggested since they are opening the binding development plan this evening, it could be amended to raise it to two and one-half acres, which is more consistent with the land use out there. He stated the area has mostly very large lots; most people have from two and one-half to five or ten acres; there are many estate homes; his neighbor has 9,000 square feet under roof; and putting the quarter-acre zoning out there would be totally inconsistent and open the door for other developers to come before the Board and use it as a precedent. He requested the Board deny the request.

Janis Walters, President of the Valkaria Neighborhood Association, stated the open space planning Ordinance sounds good in theory; but there is the larger context of the surrounding community to be considered in this case. She stated the Future Land Use Element indicates that no lot in this area should be under half-acre; the Valkaria Small Area Study reinforced the half-acre minimum lot size; the binding development plan signed in 1991 acknowledges this constraint; and the people of Valkaria have an expectation of protection of their lifestyle in these three documents. She stated they do not care to look out their windows and see their neighbor’s wall or look into their windows; they do not want to hear every word said in a neighbor’s yard; and people who find this type of crowded environment acceptable will not be happy in rural Valkaria. She stated there will always be more developers willing to make a buck bringing in a more urbanized commercialized development into the area as a convenience to satisfy the preferences of such people; and they do not want or need the extra battles they see on the horizon. She stated they work to get what they have by buying and building the community they have and by working with the County to preserve it through the Comprehensive Plan, Small Area Study, and the South Mainland Long-range Planning Initiative; the BDP and P&Z discussion in 1991 indicated the property owner knew the limitations of the land and the requirements of the Comprehensive Plan when the BDP was executed at the property owner’s request; and the BDP is binding on successive owners/developers as well, and also binds the owners to any additional County regulations. She stated the owner’s original application for zoning change indicates it would be difficult to get 178 homes on half-acre minimum lots, but it is not impossible; hand-written staff comments on the owner’s application indicate that it is possible to achieve the developer’s 178 units with half-acre minimum lot size; and it is not the Board’s job to make things easy for developers. She stated the Board’s obligation is to preserve the integrity of the Comprehensive Plan and the existing character of the area; the quarter-acre minimum lot size permitted by the open space planning Ordinance is inappropriate in this area of Valkaria; and inquired if the Ordinance includes consideration of the lot size requirements in surrounding areas. She stated if it does not, it ought to; and in this case the minimum to build a residence is one and one-half to two and one-half acre lots on all four sides of the subject property. She stated the property in question has been a cow pasture for a very long time; and inquired aside from the eagle’s nest and the floodplain issues, what rare, scenic, environmentally significant, or botanically significant features are to be preserved by using quarter-acre rather than half-acre lots. She stated use of the open space Ordinance allows for a density bonus; and inquired what guarantee is there that the bonus will not be requested under the terms of the Ordinance. She stated in 1991 the owner gave the impression the development under the binding development plan was imminent; twelve years after the fact is rather late to complain that the lot size originally requested, which is still far smaller than the lot size everyone else must use, is not too big to allow the desired number of houses to be built; it is called a binding development plan for a reason; and requested the Board hold to the half-acre minimum lot size.

Commissioner Carlson inquired if Ms. Walters served on the South Mainland Long-Range Planning Committee; with Ms. Walters responding yes. Commissioner Carlson stated on December 16, 2003 a citizen request was submitted to amend the Future Land Use Map so that land use densities reflect existing zoning patterns and also to require the use of the open space Ordinance with incentives; and inquired if this is moot now that there is talk about going against the open space amendment. Ms. Walters stated it is the existing density, not proposed; the BDP is already more dense than the existing density in the area; the overlaying land use is AU; and if it were not already platted in one and one-half acre lots, they would be required to have two and one-half acres in order to build. Commissioner Carlson inquired if Ms. Walters’ understanding of the open space Ordinance was not that kind of flexibility; with Ms. Walters responding not to that extreme. Ms. Walters stated it was her understanding that the surrounding community would be considered in future development, not that there would be little lots in a rural area just because there is an open space plan; and it was her understanding that the open space plan would be a better means of laying out a development that is otherwise consistent with the area.

Ruben Marzan stated two and one-half acres sounds good, and he concurs with his neighbors.

Jo Faden stated she concurs with her neighbors; and she is vehemently against the quarter-acre lots.

Dan Faden stated he is a Valkaria resident and a member of the Planning and Zoning Advisory Board; when this was presented to the Advisory Board, they were not shown the drawing being shown tonight; they were shown a small hand-drawn sketch; and at that time they were told that as many lots as possible would be one acre and it would progressively go down to as many half-acre lots as possible with minimal quarter-acre lots, if they were needed at all. He stated the requestor was not completely knowledgeable of the open space Ordinance, and was going to talk to staff; and it was all kind of thrown together to help push the issue. He stated there were also two exits, one to Weber Road and one to Valkaria Road; he opposed it at that time, but it did pass; and not all this information was presented to the Advisory Board. He stated open space is a good policy, which he supports; however, it needs to be looked at as far as compatibility and what it does to set a precedent that would allow other developers to request quarter-acre lots. He stated the trend of the Board, which he supports, has been that there needs to be some sacrifice of land use density for green space protection; in this case, the developer may have to sacrifice to get a little less density for green space; and it can be done outside the quarter-acre lots. He requested the Board deny the amendment.

Anna Lenoci stated she dittos everything her neighbors have said; usually people come to her for advice; and she would like to give the people who are developing the property a little bit of advice. She stated she bought a purebred dog; when she took it to the vet, he suggested spaying the dog; she was hoping to recoup the money she spent for the dog; but the dog was a bit gangly for her breed. She stated the vet advised when breeding a purebred dog, one is looking to make the breed better; so she is going to have her dog spayed; and she thinks the development needs to be spayed.

Gloria Perry stated she agrees with her eloquent neighbors to the south.

David Moll stated he lives on Weber Road; prior to this time there was a cow farm on the property; he grew up on a small parcel of land; and his dream for his family and himself was to
have something better and more private. He stated he is very upset by the plan; he has 4.7 acres; he has a one-acre pond on his property; and he could fit four or five of the proposed houses there. He stated he is shocked that the Board is even considering amending the agreement that is already binding; he would like to go back and start from two and one-half acres; and commented on congestion and added expense. He stated there is building going on in his neighborhood; approximately 20 houses have been built on his street in the past year and a half; and each of them is on two to five acres. He stated if he wanted to live in Palm Bay, he could have bought a house and lot there for a quarter or third of what he paid for his house; and urged the Board to reject the proposal.

Chair Higgs stated there are 20 more cards; it is 9:52 p.m.; and requested speakers not be redundant in their comments.

Sharon Armstrong stated she owns 4.6 acres in Valkaria; everything has already been voiced; and she is opposed to the proposal.

Jim McNamara stated he lives right across Weber Road from the proposed development; he is in Valkaria because he does not want to be in Palm Bay any more; he does not want to see development coming in looking like Palm Bay; and he does not want to see Palm Bay water coming in giving Palm Bay a reason to annex the area. He requested the Board vote no.

Wayne Hofbauer stated Valkaria is not Palm Bay.

Mark Pagliarulo stated he is a resident of Valkaria and has been a member of the Volunteer Fire Department for the past eight years; he likes the area; it is rural; people have horses, pigs, and goats; and he would like to keep it that way.

Tom Connors stated he is a Valkaria resident and agrees with his neighbors.

Bill Hoops stated he has owned property in Valkaria for six years; he paid it off; and is building a house now. He stated he looked all over; he got chased our of other neighborhoods because of things he owns; and he finally found a spot where there were big lots and he could have his space. He stated it took him five years to pay off the property; now he is building a house; it was hard to do; and now people are moving in. He stated he does not see how the roads are going to handle it; Valkaria Road is one-way each way; Weber and Corey are regular streets where children play; and inquired how will they handle the traffic. He stated the area is going to grow, but will grow slowly; he has seen it over the past six years; and if this neighborhood is put in, he does not see how the traffic is going to be handled, so he is opposed to the whole thing.

Robert Pigg stated he and his wife escaped from Palm Bay ten years ago; they went to Valkaria for the character; the lots sizes are nice; and he does not want Palm Bay in any fashion to chase after him.

Vernon Turner advised he agrees with the other speakers.

David Folts stated he and his wife retired from 20 years in Palm Bay to live in the Valkaria area because of its character; and if the developer would like to come back to another meeting, she will be here.

Bill Zino thanked the residents for attending the meeting and supporting the community; and noted he does not see the developers here, just paid lawyers requesting to get money back.

Quanell Smith stated he just moved from Westbrook in Melbourne, which was awful; he built a house on 1.67 acres in Valkaria; and requested the Board say no to the proposal.

LeRoy Rotgers stated Mr. Blake commented to the P&Z Board that there would be approximately 80 units on quarter-acre lots; and a while ago he said there would be cost to him for an environmental problem of $632,000. Mr. Blake advised that is not what he was referring to. Mr. Rotgers stated if it went to quarter-acre lots and took away half, that would be 40, so it would only be $15,000 a lot that he would have to add to make up the difference. He stated he does not know if the applicant is going to try to convince the Board or the people that there will be no more traffic on Valkaria Road; that will probably be his rebuttal; and he is against the request. He noted he lives right across the street from the proposed development and does not want it.

Cameron Lindell stated he has lived on Weber Road for 11 years; and commented on moving from Palm Bay to Valkaria for his children. He stated the traffic on Weber Road is so bad with the current development that he calls the Sheriff’s office once or twice a week; he has gated the front of his property to keep his children from being able to get out into the street; dump trucks run from Pence and all the independents; and if they are not going 55 to 65 mph, they are not moving. He inquired if the Commissioners would want that going on half a mile down the street from their homes.

Mason Blake stated there have been a lot of comments; and he will try to touch on a few. He stated Ms. Kinney brought up the binding development plan form that they drafted with the initial application; and that is not what they are requesting the Board approve tonight. He stated they are requesting the Board approve the original plan with one change only, that the property could be developed with minimum quarter-acre lots, if, and only if, they utilize the County’s open space development plan requirements in developing the property. He stated the site plan is to some degree conceptual; the layout is the way they think it will work; but they cannot go to final engineering at this stage in the process. He stated they have looked through the tree canopy Ordinance and done a lot of calculations; and the idea is to preserve as much as possible. He stated there has been a lot of match such as five acres meaning he can build 20 homes; they have 178 acres and are proposing 178 homes; so it is one unit to the acre. He stated there is a lot of talk about preserving the wildlife; that is what they are trying to do; and they can go two ways. He stated one way is with half-acre lots and maximize the yield; that is what is going to happen; or they can go this route and maximize the amount of land that is preserved for the wildlife, eagle, foxes, coons, and whatever; and that is what this is about.

Chair Higgs stated she had the opportunity over the past 11 years to work with the residents of Valkaria on a number of issues; she has tried to help protect their way of life and density and allow them to continue to enjoy the wonderful place they live; and she will continue to try to do that as long as she is on the Board. She stated she met with a number of people including Mr. Rincones, Ms. Kinney, Ms. Walters, Mr. Lorenc, and Ms. Muller and has read their comments; she also talked with Mr. Blake as a representative of the developer. She stated there is value in the open space Ordinance; it needs to be considered in resolving both the concerns of the Harris Act and how best to preserve the environment in Valkaria as well as other places; and it does require that compatibility be a part of what is looked at. She stated she hears loud and clear that the people do not believe that the application currently before the Board deals with the compatibility issue. She stated for a year they looked, along with the south mainland residents, at how to best preserve the quality of life in the south mainland area; that was people from Valkaria, Grant, and Micco; and one of the things that came out of that as a recommendation was that the open space Ordinance be mandatory. She stated when she saw the proposal last summer, it first went to the P&Z to go to EU; she knew that would have great difficulty in gaining acceptance; but she did think, given the position the planning study group was looking at, that they could look at the application of the open space Ordinance in this. She stated they had a discussion not many months ago about looking at it as mandatory in the south part of the County; and it is important to look at the open space Ordinance now that the Board is hearing the community’s reaction to the Ordinance. She stated sometimes people can say something is really needed and will save parcels, but when it is applied to a neighborhood, it causes reactions such as the Board has heard tonight. She stated she is concerned about the Harris Act issues; that is the law of the State of Florida; if a government passes a law that has economic impact, those damages may be recovered by the property owner; and the Board needs to put that in the mix as it deals with this issue. She stated the Board would be negligent in not thinking of that in a way of potentially looking at it; the claim that is being made came out of an Ordinance adopted in 2002; and that was an additional protection the Board thought was important in the area in regard to flooding. She stated the Board is on the record as trying to protect the Valkaria area and its quality of life; no one on the Board wants to harm that; she could pass the gavel and make a motion to deny, which would make a lot of people happy; but she will not make a motion to approve. She stated she is willing to consider tabling it to allow some additional discussion along the line of the half-acre; it is consistent with what the developer can do today; and if they are willing to proceed on the assumption that half-acre lots are what seem to be compatible and it is necessary to deal with incompatibilities, she will meet with the residents to talk about how it works; and she is willing to table it for that consideration. She stated if half-acre is never going to work for this development, her motion would be to deny.

Mr. Blake stated they have been working with the County, and would be glad to continue to work with the County; they may or may not get where they need to be; but they will be glad to continue to proceed with it.

Chair Higgs stated it will either be developed consistent with the binding development plan or it will go to court and all kinds of things may happen there; and it would behoove Mr. Blake and the Board to continue the discussion. She stated she will come to Valkaria to meet with everyone; and her feeling is they should continue the discussion.

Commissioner Carlson stated obviously Mr. Blake has done the calculation to determine the financial feasibility of going to one-half to one acre lots to make it consistent with the binding development plan; and inquired what is the financial difference. Mr. Blake stated he does not know that they have that; that is a level of detail they are not at yet; but they can take a look at what they can do. He stated they started down this road six months ago and did not realize this was where they would be; so they started out with quarter-acre and have been getting bigger; and he has not compared the two. Commissioner Carlson stated Mr. Blake made the comment that it was not financially feasible; and that is why she asked. Mr. Blake stated it is financially feasible to develop at half-acre lots. Commissioner Carlson stated between one-half acre and one acre in size with no lot less than one-half acre is consistent with the binding development plan; and inquired if Mr. Blake is saying it would be financially feasible to do so; with Mr. Blake responding he believes so. Mr. Blake stated they know there is an economic impact that is significant; but that is not what they were trying to measure; and they are here today to try to solve the problem. Commissioner Carlson stated when they passed the South Mainland Long-range Planning Committee, the second item requested was use of the open space Ordinance with incentives; and she knows there are incentives in that Ordinance, but was not sure if that was as is or with additional incentives. Mr. Blake stated they could ask for an increase in density of ten percent; but they have not done that; and they are not asking to change the limit in the binding development plan. Commissioner Carlson stated she was thinking of incentives that the Board would want to apply to allow Mr. Blake to do what he wanted to do and hopefully not incur as big a financial impact, if he could provide that there is going to be some sort of financial impact based on the difference between this and the binding development plan. Mr. Blake stated there are some things in the Ordinance that do provide some incentives in the sense that roads do not necessarily need to be as wide and they do not have to put in sidewalks, which saves some development cost; that preserves the rural character without sidewalks; and that is why they thought it might be a fit here, although many people obviously disagree.

Chair Higgs stated someone who is familiar with it said she did not understand some of the aspects of the open space Ordinance, so the changing of the street signs and some of those things that may not be apparent to everyone, if the Board chooses to move forward to discuss this, may resolve some of the incompatibilities.

Commissioner Pritchard stated it is obvious that the quarter-acre size development is not compatible with the neighborhood; the neighbors have said that; so, something has to be done. He stated paragraph 5 is half-acre to one acre and no lot less than half-acre in size; and personally he thinks they should strive for something larger than that. He stated when he looks at this, he is looking at the proposed SEA ordinance; he is opposed to that; and it smacks of this with smaller houses, narrower lots, smaller streets, and alleged green space. He stated everybody has acre, two-acre, five-acre properties; they believe in the preservation of their properties and where they abut they have the same type of green space; and he would only ask that when they look at redesigning this, they look at the functionality of having lots larger than even one acre in size to see economically whether that is something they can do and if it fits in to the design of the neighborhood. He stated everyone has larger lots; and recommended the applicant look at that. He stated he supports Chair Higgs’ comments about bringing it back.

Commissioner Scarborough stated it will be coming back, so he will comment next time.

Chair Higgs stated she is not willing to move forward in any further discussion if she does not get a sense from the Board that half-acre is the minimum, which is what is in the binding development plan now. Commissioner Scarborough stated that is okay. Chair Higgs stated there are four Commissioner saying half-acre is the minimum they want to look at; and inquired what about timeframe; with Mr. Blake responding the more specific they need to get, the more time it is going to take, so he would say at least two months. Chair Higgs stated her motion is going to be to table the item to see if the developer can come forward to make it more compatible and to deal with the objections; and they will converse and communicate so all the specifics are well known.

Chair Higgs passed the gavel to Vice Chair Pritchard.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to table Item IV.B.19 to the April 15, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Vice Chair Pritchard passed the gavel to Chair Higgs.

Item IV.B.20. (Z-401109) Brevard County Board of County Commissioners on its own motion authorized administrative rezoning on property owned by A&H Lawn Mower Sales & Service and Harry P. Raymond & Dalia Gierach, et al, to change from BU-1 and TU-1 to all BU-1 on 1.06 acres located on the east side of U.S. 1, south of Irwin Avenue, which was recommended for approval by the Planning and Zoning Board.

Commissioner Scarborough stated the Board previously made a mistake; this is correcting the mistake; and it is administrative.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to approve Item IV.B.20 as recommended by the Planning and Zoning Board. Motion carried and ordered unanimously. (See pages for Zoning Resolutions.)

PUBLIC HEARING, RE: RECOMMENDATIONS OF THE PLANNING AND ZONING BOARD
OF JANUARY 5, 2004 FOR ADMINISTRATIVE REZONINGS

Chair Higgs called for the public hearing to consider the administrative rezoning recommendations made by the Planning and Zoning Board at its January 5, 2004 meeting, as follows:

Item IV.E.1. Jeanne Caudle. Sub. 01, Lot 2.04; Sub. DW, Lot 13.03. Removal of Conditional Use Permit Z-10077 for Horses and Barn in SEU, which was recommended by the Planning and Zoning Board for denial.

Chair Higgs advised the item was recommended for denial. Commissioner Carlson stated she thinks the applicant wanted to use the property as it is for horses.

Zoning Manager Rick Enos stated the original parcel that had the CUP has been broken up into several parcels; two of the parcels no longer meet the conditions of the Conditional Use Permit, which requires five acres for horses; however, the owner of the parcel also has options on the two parcels that do not meet the conditions and would like to maintain the opportunity to have the CUP just in case he acquires the parcels in the future.

Charles Barger stated the presentation from Mr. Enos was accurate; Jeanne Caudle and her late husband assembled a seven-acre parcel from four separate parcels from 1982 to 1998; when Mr. Caudle died several years ago, his wife Jeanne sold the property to him; and they closed on the center two pieces already, which is five acres total. He stated all seven acres had the CUP on it; his five acres has the CUP; and he intends to close on the two outer parcels within the option period to maintain the one larger piece. He stated it is set up as a horse facility; it has a barn, riding ring, and pastures; it is fenced and cross-fenced; and because of the sale and the way it looked with the parcels being broken up, this issue came up regarding the two outer parcels. He stated he has exclusive use, the options, and a lease on the whole thing; the seven acres are still contiguous and being used for horses; and requested on behalf of himself and Ms. Caudle that the CUP be allowed to continue so they can keep having horses there.

Commissioner Scarborough inquired if the option includes a use of the property for horses; with Mr. Barger responding yes. Commissioner Scarborough inquired has the Board gotten a copy of that; with Mr. Barger responding the option has the right for exclusive use and the use is just continued. Commissioner Scarborough stated he has a problem with this, but if the option agreement has something built-in, he may be able to vote in favor. He stated he came here tonight thinking he might have to vote against it because it was not meeting the criteria for the Conditional Use Permit for the horses; but he would like to see the document.

Chair Higgs stated she is willing to give it some additional time.

Commissioner Scarborough reiterated he would like to see the document. Mr. Barger stated he does not believe the document speaks to horses; but it does speak to his exclusive use of the property. Commissioner Scarborough stated it may be okay. Mr. Barger displayed a survey.

Chair Higgs stated what Commissioner Scarborough is asking for is some documents; and what the Board will do is table the item to a subsequent meeting so Mr. Barger will have an opportunity to get them to the Board. Mr. Barger stated he doubts the document says the word horse. Commissioner Scarborough stated it may be perfectly okay; it depends on how broad it is and how binding it is; and those are the types of things he would like to see.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to table Item IV.E.1 to the February 17, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item IV.E.2. Michael S. Stern. Sub. 50, Lot 1. Removal of Conditional Use Permit Z-9625 for Sale of Alcoholic Beverages for Consumption on Premises. Withdrawn by Staff.

Preston Randall stated he has been waiting to hear if his item, A&H Lawnmower in Mims, was approved. Commissioner Scarborough advised the item was approved.

PERMISSION TO SEEK DECLARATORY JUDGMENT, RE: PRIVATE RECORDS SUBJECT
TO PUBLIC RECORDS REQUEST

Chair Higgs stated she sent a packet to each of the Commissioners; she had a request for information that is not a part of the public record; the County Attorney has opined that those are private documents; but she wishes to be certain to proceed carefully. She stated if private documents are subject to public records requests then it will affect all officials, both elected and appointed; and requested the Board direct the County Attorney to get a declaratory judgment to clarify this issue.

Commissioner Pritchard stated he agrees. Commissioner Scarborough inquired if Ms. Bentley has any thoughts on that; with Assistant County Attorney Eden Bentley responding she agrees with the opinion that has been issued that it is not a public record; and if it proceeds to court, then the Board will have the blessing of the court.

Chair Higgs passed the gavel to Vice Chair Pritchard.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to direct the County Attorney to seek a declaratory judgment concerning private records subject to public records requests.

Vice Chair Pritchard stated he understands the Supreme Court has ruled that emails are not public record; with Ms. Bentley responding it depends what it is about; if it is about one’s totally private business, the email may be private; but if it is connected to public work, then it is a public email. Vice Chair Pritchard inquired what if he transfers emails that have to do with Commission business to his home email; with Ms. Bentley responding it is a public document. Vice Chair Pritchard stated then one’s home email would be subject to public records; with Ms. Bentley responding yes. Vice Chair Pritchard inquired if home email is subject to public records; with Ms. Bentley responding yes. Commissioner Higgs stated that is if a Commissioner is doing business out of his or her home.

Commissioner Scarborough stated one way to do that is to copy the office when working from home; otherwise home records could be subjected to scrutiny; and recommended having everything that is public in a place that is public. He stated holding public records in a private place has bothered him as an attorney with confidential records; and he will not have any government documents in his law practice because it would be awful with confidentiality as the two rules could conflict tremendously.

Commissioner Carlson stated there is no guarantee that if one shows they have done that in the past, that they cannot do a public search of one’s personal documents.

Commissioner Scarborough stated the worst thing is to have to tell someone that something is on his home computer or office computer because that would really open him up to what else may be there; and if one creates a practice of having the information available constantly, it makes it easier.

Commissioner Higgs stated she would certainly want to comply with the law.

Vice Chair Pritchard stated he would like to have that addressed also regarding the issue of forwarding something to home emails and the potential problem that could manifest itself because of that practice.

Vice Chair Pritchard called for the vote on the motion. Motion carried and ordered unanimously.

Upon motion and vote, the meeting was adjourned at 10:27 p.m.

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NANCY HIGGS, CHAIRPERSON
BOARD OF COUNTY COMMISSIONERS
ATTEST: BREVARD COUNTY, FLORIDA

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SCOTT ELLIS, CLERK

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