The Board of County Commissioners of Brevard County, Florida, met in regular session on February 27, 1995, at 5:30 p.m. in the Government Center Board Room, Building C, 2725 St. Johns Street, Melbourne, Florida. Present were: Chairman Nancy Higgs, Commissioners Truman Scarborough, Mark Cook, and Scott Ellis, Assistant County Manager for Community Development Dean Sprague, and Assistant County Attorney Lisa Troner. Absent was: Commissioner Randy O'Brien.

Commissioner Scott Ellis led the assembly in the Pledge of Allegiance.

Chairman Higgs advised the audience of the proper procedure for addressing the Board.

PERMISSION TO TRAVEL TO WASHINGTON, D.C., RE: POTENTIAL WIDENING OF U.S. 192

Assistant County Manager Dean Sprague advised staff received a telephone call from Representative Futch's office requesting appropriate County staff to travel to Washington, D.C. to testify before a Congressional Subcommittee regarding the potential widening of U.S. 192. He requested the Board approve such travel.

Motion by Commissioner Scarborough, seconded by Commissioner Ellis, to approve travel for County Engineer Sue Hann and Public Safety Director Don Boykin to Washington, D.C. to testify before a Congressional Subcommittee regarding the potential widening of U.S. 192. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ZONING RECOMMENDATION OF JANUARY 3, 1995 PLANNING AND ZONING MEETING, ITEM 8

Chairman Higgs called for the public hearing to consider the Planning and Zoning (P&Z) Board recommendations of January 3, 1995, as follows:

Item 8. Randall R. Wilhoit's request for CUP for towers and antennae in PIP zone (also having a CUP for a 280-foot tower and antennae) on 10 acres located on the south side of Kings Highway, west of the F.E.C.R.R., which was approved by the P&Z Board and tabled by the Board of County Commissioners on January 30, 1995.

Commissioner Scarborough requested the item be deferred until the end of the meeting.

PUBLIC HEARING, RE: ZONING RECOMMENDATIONS OF FEBRUARY 6, 1995 PLANNING AND ZONING MEETING

Chairman Higgs called for the public hearing to consider the Planning and Zoning (P&Z) Board recommendations of February 6, 1995, as follows:

Item 1. John F. Ruggles III and Vivian V. Whalen's request for CUP for security trailer in AU zone on 22.0 acres located east of Sweet Bay Drive and Tupelo Avenue intersection, which was approved by the P&Z Board for one year with five administrative renewals.

Motion by Commissioner Scarborough, seconded by Commissioner Ellis, to approve Item 1 for one year with five administrative renewals as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 2. Rajnikant G. and Paliavi Patel's request for change from AU to BU-1 on the east 389 feet and SR on remainder of property on 2.611? acres located west of Wickham Road, south of Trimble Road, which was approved by the P&Z Board and LPA approved Small Scale Plan Amendment 95S.1.

Motion by Commissioner Ellis, seconded by Commissioner Scarborough, to approve Small Scale Plan Amendment 95S.1 for Item 2 as recommended by the LPA. Motion carried and ordered unanimously.

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

PUBLIC HEARING, RE: ORDINANCE REGARDING FIRST SMALL SCALE COMPREHENSIVE PLAN AMENDMENT OF 1995, 95S.1, AMENDING FUTURE LAND USE MAP SERIES Chairman Higgs called for the public hearing to consider ordinance regarding First Small Scale Comprehensive Plan Amendment of 1995, 95S.1, amending Future Land Use Map Series.

There being no objections heard, motion was made by Commissioner Ellis, seconded by Commissioner Scarborough, to adopt Ordinance amending Article III, Chapter 62, of the Brevard County Code, entitled "The 1988 Comprehensive Plan", setting forth the First Small Scale Plan Amendment of 1995 (95S.1) to the Future Land Use Map of the Comprehensive Plan; amending Section 62-501 entitled contents of the Plan; specifically amending Future Land Use Map Series; and provisions which require amendment to maintain internal consistency with these Amendments; providing legal status; providing a severability clause; and providing an effective date. Motion carried and ordered unanimously. Item 3. The Richard Meenan Trust's request for change from BU-1 to BU-2 on 1.0 acres located east of U.S. 1, north of Rockledge Drive and U.S. 1 intersection, which there was no recommendation by the P&Z Board due to split vote.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to return Item 3 to the P&Z Board to work with the applicant on a visual buffer. Motion carried and ordered unanimously.

Item 4. Lawrence B. (Jr.) and Karen R. Jordan's request for CUP for marina in BU-1 zone (also having a SUP for boat storage) on 2.39? acres located on the east side of U.S. 1, north of Otter Creek Road, which was approved by the P&Z Board with suggestion to applicant to prepare a binding concept plan prior to the Board of County Commissioners' meeting.

Motion by Commissioner Cook, seconded by Commissioner Ellis, to table Item 4 to the March 16, 1995 Board of County Commissioners' zoning meeting. Motion carried and ordered unanimously.

Item 5. Jacqueline Senne Newman and Dolly Newman Edwards' request for change from AU to RR-1 on 11.77 acres located east and west of U.S. Highway #1, north of Ambersand Place, which was approved by the P&Z Board.

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

Item 6. Bombardier Corporation's request for UOR for design, research and development in BU-1 zone on 3.71 acres located on the east side of U.S. Highway #1, across Berry Road, south of Grant Road, 1 1/2? miles north of Barefoot Bay Boulevard, which was approved by the P&Z Board subject to no more than nine jet powered water craft from this organization in the Indian River subjected to testing at any point and time regardless of whether it is in the area they have indicated or up and down the intracoastal.

Attorney Jim Reinman, 1825 S. Riverview Drive, Melbourne, representing the Bombardier Corporation and the Sea Doo Division in regard to their Grant facility, advised the application is for a Use on Review (UOR); the issue is not whether Bombardier should be able to continue to operate their existing facility in Grant; and the issue before the Board is whether or not the applicant should be able to use the northern portion of their property for exactly the same uses that they are making at the existing facility. He explained exhibits of the proposed use to the Board and the conceptual site plan; advised the entire property is zoned BU-1 and has been since 1982; and they are requesting the Board to grant the same UOR to allow the similar uses that are being used at the facility for the northern portion of the property.

Attorney Reinman provided documentation to the Board; indicated that the complaints of the neighbors have been focused in this regard not to the land use that is being made to the property as proposed; this whole dispute and controversy, and the issue the Board is going to hear from the public about has to do with the existing use that is being made; and that is on water testing of the personal watercraft. He related that the only complaints and the focus of all of the complaints has been the noise associated with the on-water testing; this is not a land use issue; and his client, as every other client, has a right to use the intercoastal waterway under the law for vehicle testing. He advised Florida Statutes 327.60 and 327.65 restrict the County's ability to put impositions on the amount of noise to a minimum of 90 decibels measured at 50 feet; but his client, just as they did seven years ago when the concern at that time was about manatees, has proposed to the Board and it has before it a proposed sound abatement policy; and they are willing to consider and have the County include this a condition on the UOR to try to work with the neighbors and deal with what their concerns expressed are in regard to the noise emanated by this.

Attorney Reinman emphasized that the P&Z Board recommended in favor of this UOR 9:1 with a condition they tried to deal with this noise abatement issue by limiting the total number of watercraft in the water at one time and recommended a limitation of nine.

Hugh Pat Kelly, 2550 S.E. Victory Avenue, Port St. Lucie, representing the Grant Farm Island Homeowners Association, advised of concerns regarding environmental impacts, marine and wildlife, nesting birds, dolphins and pelicans, active sea life, seagrass, clams, and valuable resources in this area that need to be protected.

Norman Danella, 6675 S. U.S. Highway 1, Grant, advised of his concern about the continuous noise from testing the jet powered watercraft.

David Cato, 6475 U.S. Highway 1, Grant, advised he objects to Bombardier Corporation's request for UOR; and requested those individuals in the audience who object to the proposed request to stand. He stated he has the original petition signed by 150 people that object to the UOR; and the Board has copies of it.

Keith Tuten, 6485 Highway U.S. 1, Grant, requested the Board place these limitations per prior agreement with Bombardier Corporation: (1) the hours of testing be confined to 8:00 a.m. to 4:30 p.m. Monday through Friday; (2) no more than six watercraft in the water at one time; and (3) all watercraft be stored in the building that was originally built for storage of these vehicles and remain out of sight from land and waterway.

Marlene Reilly, 6451 Highway #1, Grant, showed a film to the Board and audience of Bombardier Corporation testing the jet powered watercraft in the area.

Jim Gallagher, 6465 U.S. Highway 1, Grant, addressed some of the environmental impacts of Bombardier Corporation's intensive personal watercraft testing on the Indian River Lagoon, including seagrass beds and seagrass damage, increase in turbidity, redistributing bottom dwelling invertebrates, disturbing fish spawning and nesting sites, and killing significant portions of developing embryos and free swimming oyster and clam larvae. He noted it is also documented that fishing successes in some high traffic personal watercraft areas dropped off to zero, demonstrating the fish behavior is altered by such activity; because of all these documented environmental insults, personal watercraft have been banned from many areas, including among them Everglades National Park; and the County should follow its own Comprehensive Plan and prohibit activities so detrimental to the Indian River Lagoon.

Dan MacKlister, 7000 U.S. 1, Grant, provided a handout to the Board; stated he was asked by several lease holders within a mile of the facility to see exactly what was happening with these boats; a particular concern was the fact that the expansion of the plant was going to be producing hauls, hauls being not just these jet propelled water cycles, but a kind of speed boat equal to 50 m.p.h.; and the concerns included environmental impacts. He related there is an enormous concern on the part of the aquaculture industry as to what is going to happen to these waters; and the second level of concern is the plans to add 75 feet of dock of runway into the Lagoon.

Albert Quatraro, 5115 Honeylane, Grant, stated everything has been said that he would like to say tonight; he was going to talk about the environment and the wild harvest of clams; and the County produces $20 million a year and has done so in the last several years in hard clams. He noted the residents are not going to benefit from Bombardier's metal building; and the Company is going to be taking away the residents' quality of life. He provided copies of documentation to the Board.

Kevin Gallagher, 6465 U.S. Highway 1, Grant, outlined the history of the issue to the Board and audience.

Emil Svatik, Box 809, Grant, provided a package to the Board showing what Bombardier is allowed to do on the present property, including testing and service of jet water cycles only, minimum speed in manatee zones, and no boat building. He noted the manatee zones are not respected; Bombardier Corporation snuck in an occupational license on the property which says boat building and testing; and with the boating building license, it is able to get permission for hazardous chemicals, fiberglass, and machine shops. He showed a slide presentation to the Board regarding the property in question.

Joan Miller, Lot 6B Grant Island, Grant, reiterated that a lot of the testing shown on the videotape was occurring around Grant Island; she lives on the east side; most of the depth of water there is about two to three feet; it is very environmentally sensitive; and it is in the manatee speed zone. She noted the residents are trying to protect the area; and the testing is absolutely detrimental to everything that the State and the Nation is doing as far as protecting the environment.

Blair Edwards, 5935 S. U.S. 1, Grant, expressed concern about the noise from testing the jet skis and the fish and wildlife in the area.

Christian Bastien, 8520 U.S. 1, Apt. D-2, Micco, advised that boaters have disrespect of the water; and the jet ski owners pay attention to what they do and are concerned about the water.

Dale Ayers, 6235 U.S. 1, Grant, stated any time the Board does not think the jet ski owners are degrading his quality of life, he invites it to sit on his dock at 7:30 a.m. until very late in the afternoon to listen to what happens. He advised he has lived at his address long before these individuals started testing jet skis; and he has gone to the factory twice and complained.

Barbara Doering, P. O. Box 362, Grant Farm Island, indicated she believes the Board has copies of a petition from the residents on the Island; the environmental impact is the main issue, including seagrasses, clams, oysters, etc.; and they are also concerned about erosion, wood storks, water safety, and manatees.

Theodore Mory, 1765 Mason Terrace, Melbourne, advised he works for Bombardier as a lead test pilot; and addressed concerns regarding environmental impact. He related there has not been any indications or any reportings of any safety related problems; there are no official documentations of accidents; Bombardier is very safety conscious; it does not want to give the impression that it is just doing this for itself; and it has the environment in mind at all times.

Kenny Boyd, 1465 S. Lester Court, Merritt Island, stated he has made his living for the last three or four years using Bombardier's product; he is not an employee of such Company, but he has had employees who work for him; and the thousands of dollars on payroll taxes and sales taxes that have been generated from his employees and himself as an employee has been beneficial to the State and Brevard County. He noted if the County were to cause this Corporation hardships after coming into Brevard, it will find another county that it would be welcome in.

Billy Allen, Grant Farm Island, advised what the residents are objecting to is the testers come through the end of the island where the birds nest; they are just across the sandbar and run right in where the birds nest; and they disturb the birds. She further objected to the attitude of the testers who drive the ski jets; and stated they have deliberately run people down many times. She noted there are 62 houses on the island; approximately 45 residents have signed a petition; they get no benefits whatsoever from their taxes; and they have the right to complain when their peace of mind and their homes are in danger from noise and dangerous actions of some of these people. She indicated the residents have rights; and just because Bombardier has invested a lot of money in the County does not mean it has all the rights.

Attorney Reinman commented that Bombardier has tried to meet with the neighbors several times since this first came up; the Company is not manufacturing boats at this location; it would be more than happy with the same UOR that is on the south half of the property; the only reason it gave that description is because it did not want any confusion about exactly what it is doing; it assembles prototypes and is conducting a service facility; and it is compatible BU-1 which is the reason it was approved seven years ago. He addressed various concerns expressed by the speakers. He requested the Board recognize the real issue which is land use; stated it is one that has been decided before; the P&Z Board voted 9:1 in favor of the UOR; and requested the County Commission also approve the item.

Commissioner Ellis inquired about the hours of 8:00 a.m. to 4:30 p.m. and the six watercraft restrictions, and if there are any self-imposed restrictions on the number of vehicles in the water; with Attorney Reinman responding negatively. He commented the real issue has to do with the density of the use in the area; the residents are unhappy with the number of boats that are operating there; and Bombardier has safety concerns at a certain level too. He advised the Company has said as a condition of granting the UOR, it would establish a second test site to disburse the congestion and the noise to another area that would not affect this area and thereby try to alleviate the problem; and that is the answer to the problems it has had. Attorney Reinman delineated the test areas on the map.

Commissioner Cook inquired is the second testing area in the channel; with Attorney Reinman responding both of the testing areas are outside the channel.

Chairman Higgs passed the gavel to Vice Chairman Ellis.

Commissioner Higgs inquired does staff have knowledge of the kind of license this Company has; with Zoning Official Rick Enos responding he is aware of one license in particular that it has. Commissioner Higgs inquired what license does it have. Mr. Enos responded it is an occupational license which is dated for expiration on September 30, 1995; it is for boat manufacturing; and this license was originally issued in February, 1987. Commissioner Higgs stated the UOR issue hinges on the uses allowed within the zoning classification; and requested Mr. Enos give examples of uses in BU-1. Mr. Enos responded BU-1 is a retail classification and allows office-type uses. Commissioner Higgs noted in general it is office and retail uses in that classification; with Mr. Enos responding that is correct. Commissioner Higgs advised the Board saw a list described by the applicant of their activity they are proposing, including research, assembly, prototype design service; and inquired in what zoning classification would someone find research and development facilities such as these, and is it IU. She inquired the testing, research and design of industrial products or products would be done in an IU; with Mr. Enos responding yes. Commissioner Higgs inquired are they permitted in BU-1 zone, and is industrial design and testing permitted in that classification; with Mr. Enos responding no. Mr. Enos clarified that the issue here is whether or not these uses are similar to uses that are listed in the BU-1 zone; it is up to the applicant to prove to the satisfaction of the Board if they are; if the applicant has done that, the Board should approve this as being uses that are consistent with BU-1; and if the applicant has not done that to the Board's satisfaction, then it should deny this. Commissioner Higgs advised she does not see anything in the BU-1 zoning classification that describes for her what she believes has been described by the applicant as what they do; she reads further in the industrial uses and PIP, and she finds very similar uses to what has been described by the applicant and by what she has seen in pictures to be what it is being done. She stated in the Comprehensive Plan, the County has very specific statements in regard to marine industries that those marine industry uses, which she believes this is, shall be limited to industrial use areas or ports; and that is in the Comprehensive Plan Element 12. She noted also in the Comprehensive Plan, increases in ambient turbidity within the lagoon that have a negative impact on submerged aquatic vegetation, thus no increase in ambient turbidity should be permitted; no fueling, repair or pumping are permitted in certain zoning classifications such as residential; and that does not deal with a business part classification. She stated commercial recreational and commercial industrial marinas shall not be located in aquatic preserves; and she would define what is going on in this particular use as described by the applicant and as seen in the information to be those uses that should not occur in aquatic preserves, nor are they appropriate BU-1 uses. Commissioner Higgs stated by Bombardier's own license, it has said it is conducting boat building; and that is the closest similarity that is going on.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to overrule the P&Z Board and deny Item 6. Motion did not carry; Commissioners Scarborough and Higgs voted aye, Commissioners Cook and Ellis voted nay.

Motion by Commissioner Cook, seconded for discussion by Commissioner Ellis, to approve the request for UOR for Item 6; and accept Bombardier's sound abatement policy to apply to both properties, with the following stipulations: (1) all operations are between 8:00 a.m. and 4:30 p.m. Monday through Friday; (2) all craft are stored inside; and (3) no more than a total of nine watercraft in the water at one time.

Vice Chairman Ellis inquired if Commissioner Cook would add in the motion no more than three watercraft in test area one at one time; with Commissioner Cook responding yes.

Commissioner Higgs suggested the item be tabled to the next meeting when there is a full Board present; everyone will have an opportunity to consider the options; and perhaps there will be some solutions. Vice Chairman Ellis stated the County can also have some legal research done.

Motion by Commissioner Higgs, seconded by Commissioner Ellis, to table Item 6 to the March 16, 1995 Board of County Commissioners' zoning meeting, with such item being scheduled first. Motion carried and ordered unanimously.

Vice Chairman Ellis passed the gavel to Chairman Higgs.

The meeting recessed at 7:56 p.m.

The meeting reconvened at 8:13 p.m.

Item 7. Clyde E. and Nancy B. Keller, Clark F. Brown, Jr. and Judith E. Monica's request for CUP for a barn and CUP for horses in SEU zone on 5.62? acres located west of South Tropical Trail, north of Pineda Causeway, which was approved by the P&Z Board.

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

Item 8. Brevard Memorial Park Association, a Florida Corporation's request for CUP for a mausoleum in AU zone (also having a CUP for a cemetery) on 40.318 acres located north of Spring Street, west of U.S. 1, which was approved by the P&Z Board.

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

Item 9. Joseph L. Stepp's request for change from RU-2-10 to BU-1 on 1.12 acres located west of U.S. 1, south of Golden Knights Boulevard, which was approved by the P&Z Board.

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

Item 10. Zuma Corporation, a Florida Corporation's request for CUP for marina in BU-1 zone (also having a SUP for liquor, beer and wine) on 0.82 acre located on the east side of Riversedge Drive, south of its intersection with U.S. 1, which was denied by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to deny Item 10 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 11. Brevard County Board of County Commissioners on its own motion authorized administrative rezoning of property on which a development order had been submitted initiating a consideration of a change in zoning classification in accordance with the provisions of Future Land Use Element XIII, Policy 10.2, Brevard County Comprehensive Plan as adopted on September 8, 1988, on .9 acre located east of Railroad Avenue, south of Canaveral Groves Boulevard, which was approved from TR-1 to IU by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to approve Item 11 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 12. Zoning Official's Report: No report.

Item 13. The Suntree Partners, a Florida General Partnership's request for Small Scale Plan Amendment (95S.2) for a change to the Future Land Use Map from public facilities to residential and a change from GML to PUD on 1.23? acres located north of Spyglass Hill Road and east of Forrest Lake Avenue, which was approved by the P&Z Board and LPA.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to approve Item 13 as recommended by the LPA. Motion carried and ordered unanimously.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to approve Item 13 as recommended by the P&Z Board. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE REGARDING SECOND SMALL SCALE COMPREHENSIVE PLAN AMENDMENT OF 1995, 95S.2, AMENDING FUTURE LAND USE MAP SERIES

Chairman Higgs called for the public hearing to consider ordinance regarding Second Small Scale Comprehensive Plan Amendment of 1995, 95S.2, amending Future Land Use Map Series.

There being no objections heard, motion was made by Commissioner Cook, seconded by Commissioner Scarborough, to adopt Ordinance amending Article III, Chapter 62, of the Brevard County Code, entitled "The 1988 Comprehensive Plan", setting forth the First Small Scale Plan Amendment of 1995 (95S.2) to the Future Land Use Map of the Comprehensive Plan; amending Section 62-501 entitled Contents of the Plan; specifically amending Future Land Use Map Series; and provisions which require amendment to maintain internal consistency with these Amendments; providing legal status; providing a severability clause; and providing an effective date. Motion carried and ordered unanimously.

Item 14. Kaleny, Limited of Florida, Inc.'s request for substantial expansion of pre-existing use in TU-1(20) zone (also having a pre-existing use - 015) on 1.515? acres located on the east side of A1A, north of Flamingo Drive, which was approved by the P&Z Board limited to use as requested by the applicant, with the exception of accounting, photography and law offices.

Mike Fischer, 1915 Airport Boulevard, Melbourne, advised the Company is asking for a substantial expansion to a pre-existing use; and this request was unanimously approved by the P&Z Board. He delineated various posters; and requested the County Commission approve the substantial expansion which is exactly the same as the site plan that was approved by Brevard County approximately two years ago. He noted this site plan expired while the Company was in the permitting process; and outlined the existing motel on the site plan. He explained what is being proposed is a three-story four unit structure with storage and two retail units on the ground floor.

Mr. Fischer advised it is important to note that what the applicant is requesting is not a change in the existing use and not a new use, but a use that has been in affect for 23 years on this site; the original motel was built in 1953; it had TU-1 zoning for 23 years; the owners of this property purchased the property over five years ago; and when they purchased it, they purchased it with the intent to complete this project. He noted the owners of this motel live there and work there; and everything they are proposing, including height limitations, are within the zoning restrictions for this property.

Bernard Alwill, 5935 S. A1A, Melbourne Beach, advised when they bought this property five years ago, they bought it with the understanding and the right to finish this overall plan that they had started; they did phase one and did it very successfully; and they have been in operation for five years now. He noted they have had no problems with any of the people in the block association that he knows of; everyone in the block association knew they were going to build phase two; it has taken a little bit longer than usual because financing is hard to get; they applied for site approval and were granted it; they borrowed money to get the proper plans together; and they were all done. He stated they were in the process of getting their building permit; they got involved with an architectural firm that delayed them; they did not know the site approval time was going to expire; and they are wanting to do what they were allowed to do and told what they could do. He noted they are not asking for much; and they are just asking to continue what they started to do five years ago when they purchased the property. Mr. Alwill presented photographs to the Board.

Susan Simoes, 5895 Riverside Drive, Melbourne Beach, read a letter voicing her objections to the proposed request.

Larry Bell, 150 Heron Drive, Melbourne Beach, President of Melbourne Shores Property Owners Association, advised he received several petitions signed by Association members that opposed the requested expansion. He asked those individuals in the audience who oppose the requested expansion to stand. He noted such expansion is not compatible with the character of the community. He provided a packet to the Board containing a map of the community, photographs, and the local newspaper that Melbourne Shores publishes.

David Micka, 1401 Oak Street, Melbourne Beach, advised he is a member of the board of BIPPA; part of its charter is to support the compatible zoning and land use on the barrier islands; and BIPPA has reviewed the findings of the Commission's staff and concurs with its findings that the commercial expansion of a property located in an oceanfront residential neighborhood does not fit the requirements to be consistent with the character of the area. He requested the Commission take on the unpleasant task of protecting the residents of Brevard and of maintaining the character of the South Brevard area.

Linda Harris, 390 Lake View Drive, Melbourne Beach, opposed the proposed expansion; stated it would set a very dangerous precedent; individuals have fought hard to protect the South Beaches; and requested the Board oppose the expansion.

W. S. Hollis, U.S. Army Ranger Retired, 3035 A1A, #4A, Melbourne Beach, Chairman of BIPPA, presented documentation to the Board; and requested it deny the request of the applicant. He outlined the information presented, including the proposed application; County staff has determined the application is not compatible and/or consistent with the law; this project is a great threat to the Archie Carr Refuge; and requested the Board not set a precedent by allowing this building.

Bernie Monaghan, 205 River Walk Drive, Melbourne Beach, Vice Chairman of BIPPA, stated it seems like only yesterday when the County talked about land use and the Comprehensive Plan; now less than a year it is talking about changing things again; one person wants to disrupt what it took the County two years to put together; and it is not correct. He noted the tourists are attracted to the beaches and to see the turtles and Archie Carr Refuge; but they do not come to see a three-story monster. He advised BIPPA is opposed to the proposed request; and urged the Board to deny the application.

Fred Lindahl, 175 Riverwalk Drive, Melbourne Beach, President of Riverwalk Homeowners Association and member of BIPPA, advised they are very concerned that Commissioner Ellis has proposed to the Board that changes need to be made to the County's pre-existing use of rules for land development, namely the barrier island, if not for the County in general. He requested the Board deny any changes to the pre-existing County laws; and the Riverwalk Homeowners Association opposes any changes to any laws and opposes the Surfcaster Motel application.

Nancy DeGrosa, 134 Flamingo Drive, Melbourne Beach, stated property values will suffer as a result of the proposed expansion; and expressed concern with additional traffic and safety. She noted they have a very unique neighborhood in Melbourne Shores; the residents want the character of their pristine neighborhood undisturbed; they do not want this substantial expansion; they do not want it to set a negative precedent in the South Beaches; and requested the Board reflect the residents united voice.

George Blaha, 280 Flamingo Drive, Melbourne Shores, read a letter expressing his concern on the effect that the motel expansion will have on the wildlife, including the sea turtles and nesting; Melbourne Shores has been a bird and wildlife sanctuary for more than a decade; the community cares for all of its residents; and their concerns are deeply rooted, justified, and sincere.

Pat Blaha, 280 Flamingo Drive, Melbourne Shores, stated most of the good points have been made; and expressed her opposition to the expansion. She noted the people have been working to preserve the South Beaches; the expansion is not compatible with the neighborhood; there is no commercial property on the beach side of the neighborhood; and this would be extremely disruptive if the expansion is granted.

Sybil Wilensky, 122 Pelican Drive, Melbourne Beach, reiterated that the Board take into consideration the needs, concerns and wishes of the majority rather than favoring one individual property owner. She advised the residents have a very unique environment; and everyone needs to work to protect it.

Valerie Amneus, P. O. Box 129, Lawai, Hawaii, advised her family owns the oceanfront lot directly to the north of the Surfcaster Motel; because they are the immediate neighbors, her family would be the most directly and negatively impacted; their property represents a substantial financial investment for them; and it may be their home in the future. She stated she is concerned with maintaining the quality of the Melbourne Shores community; she supports the current Comprehensive Plan which seeks to limit density and commercial development in the South Beach area; the current Motel is now non-conforming; County staff recommends denial of the proposed request; the Board is not obligated to grant this request; and asked for the Board's support of the Comprehensive Plan and deny the request.

Mr. Fischer reiterated this Motel was first built in 1953; the owners have spent a considerable amount of money upgrading and improving the existing facility; and it has improved the property values of surrounding properties.

Commissioner Cook advised he reviewed the property; he is sympathetic to the property owner; but he cannot see how this expansion can be compatible with the existing area; the South Beaches is a very pristine area; he cannot convince himself that this would be something that should be there; and he cannot vote in support of this.

Commissioner Ellis noted the letter from Mr. Lindahl talked about changing the overall structure of the original intent of the land use; the Motel was in existence before the homes; and when talking about changing the intent, the Comprehensive Plan changed the intent. He stated if you go into retail commercial, then that does change the intent of TU-1; however, if you expand the Motel, to him that does not change the intent; and he does not see the problem with expanding the Motel.

Commissioner Scarborough advised County staff indicated the request is not compatible with the surrounding land use; it is not consistent with the character of the area; and staff's recommendation is for denial.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to overrule the P&Z Board and deny Item 14.

Chairman Higgs stated the residents are present because they care deeply and are very committed to the type of lifestyle that is in existence that they want to preserve; the TU-1 zoning does not allow the BU-1-A uses and that is a part of the law; the request must comply with the land development regulations, including the zoning regulations; the substantial expansion that has been applied for is not compatible with the law; so she will support the motion to deny.

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

The meeting recessed at 9:24 p.m.

The meeting reconvened at 9:26 p.m.

Jack Kirschenbaum, representing the applicant, advised they are here this evening as a result of having appeared before the Board last month on the requested CUP; it was tabled to acquire some additional information concerning the position of the Spaceport Executive Airport; there was one additional question; and that was what the position of the FAA was. He stated this property has previously received a CUP to build a 280-foot tower; the requested action is that the 280 feet be extended to 293 feet so an antennae can be placed on top of the tower for cellular communications. He noted the FAA has issued its determination of no hazard to air navigation; he submitted it to the Zoning Official; and asked that it be distributed to the Board. Mr. Kirschenbaum stated that document is as a result of publication and investigation by the FAA; and the public, including the Airport, its Director, and pilots have the opportunity to respond to that notification and issue comments or objections if they choose to.

Zoning Official Rick Enos advised staff has not received anything in writing from the Airport; and the FAA's concern is instrument landing.

Commissioner Scarborough noted the Board held this up so the Airport could comment; but it has not taken the time to do so, except to indicate that it has some concerns.

Chairman Higgs inquired was the Airport contacted; with Commissioner Scarborough responding yes. Mr. Enos advised the Planning staff spoke to the Airport Director on at least three occasions requesting that if the Airport had any comment, to put them in writing; but the County has not received anything.

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

PUBLIC HEARING, RE: ADMINISTRATIVE REZONING RECOMMENDATIONS OF DECEMBER 5, 1994 PLANNING AND ZONING BOARD MEETING

Chairman Higgs called for the public hearing to consider administrative rezoning recommendations of December 5, 1994 Planning and Zoning (P&Z) Board meeting, as follows:

Brigadier General W. S. Hollis, 3035 A1A, #4A, Melbourne Beach, urged the Board to approve the administrative rezonings; and requested it do its duty under the law to get the zoning in compliance with the Comprehensive Plan and the Land Use Plan.

Bernard Monaghan, 205 Riverwalk Drive, Melbourne Beach, advised he concurs with General Hollis' comments; and urged the Board to vote for the administrative rezonings.

Linda Harris, 390 Lakeview Drive, Melbourne Beach, advised she and the residents would like to go on record that they would like to see the two pieces of the plan synchronized.

David Micka, 1401 Oak Street, Melbourne Beach, advised he strongly supports the Board approving the administrative rezonings.

Fred Lindahl, 175 Riverwalk Drive, Melbourne Beach, indicated he is in favor of everything that General Hollis and the other members of BIPPA have stated; and he strongly supports this issue.

Item 23. Section 28, Township 28, Range 38, Parcel 761, with current zoning BU-1 and proposed zoning SR, which was denied by the P&Z Board.

Zoning Official Rick Enos advised Items 22 and 23 are very similar in character; they are part of the same site; and it is the Driftwood Plaza Shopping Center. He recommended Item 23 be tabled for readvertisement as BU-1-A.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to table Item 23 for readvertisement as BU-1-A. Motion carried and ordered unanimously.

Item 1. Section 21, Township 28, Range 38, Averill Farms Subdivision #GD, Block C, Lots 1 through 4, and Lots 6 and 7, with current zoning RU-2-6 and proposed zoning RU-2-4, which was approved by the P&Z Board.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to approve Item 1 as RU-2-4 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 2. Section 21, Township 28, Range 38, Averill Farms Subdivision #GD, Block C, Lot 5 (a.k.a.) Windsong of Brevard, a Condominium - 5.01 through 5.08), with current zoning RU-2-6 and proposed zoning RU-2-4, which was approved by the P&Z Board.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to approve Item 2 as RU-2-4 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 3. Section 21, Township 28, Range 38, Richards Subdivision #GB, Lots 1, 2, and 3, with current zoning RU-2-8 and proposed zoning SR, which was approved by the P&Z Board.

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

Item 4. Section 21, Township 28, Range 38, Kirkton-Richards Subdivision #GC, Lots 1 and 2, with current zoning RU-2-8 and proposed zoning SR, which was approved by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to approve Item 4 as SR as recommended by the P&Z Board. Motion carried and ordered; Commissioner Ellis voted nay.

Item 5. Section 21, Township 28, Range 38, Averill Farms Subdivision #GD, Block C, Lots 8 and 9, with current zoning TU-1(20) and proposed zoning RU-2-8, which was approved by the P&Z Board.

Ron Hoback, 3135 Highway A1A, Melbourne Beach, stated it is his understanding that they have been granted a pre-existing use; that would allow them to continue their business as it is now under the present zoning of TU-1(20); but there are limitations and restrictions that are added to this existing use. He noted an example of that is if his business, for whatever reason, should be closed for a year, the County is saying it could take away the pre-existing use and make it into the RU-2-8 without allowing the pre-existing use.

Commissioner Ellis noted he does not believe that is right, and inquired is it six months.

Zoning Official Rick Enos responded under pre-existing use, it is one year. Commissioner Ellis inquired would Mr. Hoback default to RU-2-8; with Mr. Enos responding yes.

Mr. Hoback advised that is a concern for anyone that has ever been in business; there are some unforeseen things that could happen which may not be any fault of their own; it seems very unfair that all of a sudden the County can take that away; any existing business should be grandfathered in; and it is going to be very difficult to sell a business when the County has these restrictions.

Commissioner Cook stated Mr. Hoback could still sell his property; he can still operate the way he has been operating; he falls under the pre-existing use; the County is not closing him down; and sometimes the character of areas change.

Commissioner Ellis noted just because the character changes does not mean the people that are there first have to be the ones to get punished.

Commissioner Cook reiterated Mr. Hoback is still going to be able to operate his restaurant, but it would be a hinderance if he wants to expand. He advised Mr. Hoback would have to abandon the building for more than a year and have no activity or no interest in the building for it to revert to RU-2-8.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to approve Item 5 as RU-2-8 as recommended by the P&Z Board. Motion carried and ordered; Commissioner Ellis voted nay.

Item 6. Section 21, Township 28, Range 38, Averill Farms Subdivision #GD, Block C, Lots 10 and 11, with current zoning RU-2-8 and proposed zoning SR, which was approved by the P&Z Board.
Motion by Commissioner Cook, seconded by Commissioner Scarborough, to approve Item 6 as SR as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 7. Section 21, Township 28, Range 38, Allan's Subdivision #GE, Lots 1 and 2 (lying east of Highway A1A), with current zoning RU-2-8 and proposed zoning SR, which was approved by the P&Z Board.

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

Item 8. Section 21, Township 28, Range 38, Averill Farms Subdivision #GD, Part of Block F, Known as Lots 7, 8, 9, and 10 and Block I, Lots 1 and 2, with current zoning PUD and proposed zoning GML, which was approved by the P&Z Board.

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

Item 9. Section 21, Township 28, Range 38, Averill Farms Subdivision #GD, Block I, Lots 3, 4, and 5, with current zoning RU-2-6 and proposed zoning SR, which was approved by the P&Z Board.

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

Item 10. Sections 21/28, Township 28, Range 38, Averill Farms Subdivision, #GD, Block I, Lots 6 through 10, with current zoning RU-2-6 and proposed zoning GML, which was approved by the P&Z Board.

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

Item 11. Section 28, Township 28, Range 38, Averill Farms Subdivision #GD, Block I, Lot 11, with current zoning RU-2-6 and proposed zoning SR, which was approved by the P&Z Board.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to approve Item 11 as SR as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 12. Section 28, Township 28, Range 38, Averill Farms Subdivision #GD, Block L, Lots 5 and 6, with current zoning RU-2-6 and proposed zoning SR, which was approved by the P&Z Board.

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

Item 13. Section 28, Township 28, Range 38, Replat of Lot A, Clayton's Subdivision #04, Lot A, with current zoning TU-1(20) and proposed zoning SR, which was approved by the P&Z Board.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to approve Item 13 as SR as recommended by the P&Z Board. Motion carried and ordered; Commissioner Ellis voted nay.

Item 14. Section 28, Township 28, Range 38, Averill Farms Subdivision #GD, Block L, Lots 8(S 1/2), 9, and 10, with current zoning RU-2-6 and proposed zoning SR, which was approved by the P&Z Board.

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

Item 15. Section 28, Township 28, Range 38, Clayton's Subdivision No. 1-#02, Lots 1 through 22, with current zoning RU-2-4 and proposed zoning SR, which was approved by the P&Z Board.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to approve Item 15 as SR as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 16. Section 28, Township 28, Range 38, Parcel 750, 751 (E. of Hwy. A1A), 752(E. of Hwy. A1A), 753, 755.1, 756, 757, 770, 771, 773, and 774, with current zoning RU-2-6 and proposed zoning SR, which was approved by the P&Z Board.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to approve Item 16 as SR as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 17. Section 28, Township 28, Range 38, Indigo Cove Subdivision #51, Lots I through 12, with current zoning RU-2-8 and proposed zoning SR, which was approved by the P&Z Board.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to approve Item 17 as SR as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 18. Section 28, Township 28, Range 38, Parcels 751 (W. of Hwy. A1A-together with Parcel 501), parcel 752 (W. of Hwy. A1A-together with Parcel 502), and Parcel 753.1 (W. of Hwy. A1A-together with Parcel 503), with current zoning RU-2-8 and proposed zoning SR, which was approved by the P&Z Board.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to approve Item 18 as SR as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 19. Section 28, Township 28, Range 38, Parcels 504, 505, and 754, with current zoning RU-2-8 and proposed zoning SR, which was approved by the P&Z Board.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to approve Item 19 as SR as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 20. Section 28, Township 28, Range 38, Waterford Bay, a Condominium, Phase I (a.k.a. Parcels 513.1 - 513.3), and Phase II (a.k.a. Parcels 514.1 through 514.2), with current zoning RU-2-8 and proposed zoning SR, which was approved by the P&Z Board.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to approve Item 20 as SR as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 21. Section 28, Township 28, Range 38, Parcel 755.2 (lying E. of Hwy. A1A), with current zoning RU-2-6 and proposed zoning GML, which was approved by the P&Z Board.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to approve Item 21 as GML as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 22. Section 28, Township 28, Range 38, Parcel 760, with current zoning BU-1 and proposed zoning BU-1-A, which was denied by the P&Z Board.

Motion by Commissioner Cook, seconded by Commissioner Ellis, to deny Item 22 as BU-1-A as recommended by the P&Z Board.

Chairman Higgs advised she cannot support the motion; she can support the proposal of BU-1-A; and it is the only appropriate category consistent with the Comprehensive Plan.

Zoning Official Rick Enos stated it would be inappropriate to deny this at least without some other accompanying action; the Board can approve the request as BU-1-A; or if it chooses to deny this, it should also direct staff to initiate a Comprehensive Plan amendment because it must make the zoning consistent with the Comprehensive Plan.

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

Commissioner Scarborough stated this Item and Item 23 are both Driftwood Shopping Plaza; and perhaps the Board desires those Items to come back at the same time.

Mr. Enos advised he has no objection putting the two items together in the same advertisement.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to table Item 22 to hear simultaneously with Item 23. Motion carried and ordered unanimously.

Item 24. Section 28, Township 28, Range 38, Parcel 762, with current zoning RU-2-6 and proposed zoning SR, which was approved by the P&Z Board.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to approve Item 24 as SR as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 25. Section 28, Township 28, Range 38, Parcel 763(lying W. and E. of Hwy. A1A), with current zoning BU-1 (W. of A1A) & RU-2-6(E. of A1A) and proposed zoning SR, which was approved by the P&Z Board.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to approve Item 25 as SR as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 26. Section 28, Township 28, Range 38, Parcel 510, with current zoning RU-2-8 and proposed zoning SR, which was approved by the P&Z Board.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to approve Item 26 as SR as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 27. Section 28, Township 28, Range 38, Parcel 764(E. of Hwy. A1A only), with current zoning RU-2-6 and proposed zoning SR, which was approved by the P&Z Board.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to approve Item 27 as SR as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 28. Section 28, Township 28, Range 38, Parcels 512, 765, 766, and 767(all lying W. of Hwy. A1A), with current zoning RU-1-7 and proposed zoning SR, which was approved by the P&Z Board.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to approve Item 28 as SR as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 29. Section 28, Township 28, Range 38, Parcels 775, 776, 777, and 778(all lying E. of Hwy. A1A), with current zoning RU-1-7 and proposed zoning SR, which was approved by the P&Z Board.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to approve Item 29 as SR as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 30. Section 28, Township 28, Range 38, Parcels 769, 772, and 772.1, with current zoning RU-2-6 and proposed zoning SR, which was approved by the P&Z Board.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to approve Item 30 as SR as recommended by the P&Z Board. Motion carried and ordered unanimously.

DISCUSSION, RE: GUN DISCHARGE TASK FORCE

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to table discussion on the Gun Discharge Task Force until March 7, 1995 Board Meeting. Motion carried and ordered unanimously.

Upon motion and vote, the meeting adjourned at 10:12 p.m.

NANCY N. HIGGS, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

ATTEST:
SANDY CRAWFORD, CLERK
(S E A L)