The Board of County Commissioners of Brevard County, Florida, met in regular session on December 5, 1996, at 5:30 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Melbourne, Florida. Present were: Chairman Randy O?Brien, Commissioners Truman Scarborough, Nancy Higgs, Mark Cook, and Helen Voltz, Assistant to the County Manager Peggy Busacca, and Assistant County Attorney Katherine Harasz.

Commissioner Scarborough led the assembly in the Pledge of Allegiance.

REPORT, RE: COPIES OF AGENDA

Chairman O?Brien advised he received a letter December 2, 1996, stating in an effort to reduce cost, hard copies of the agenda will not be furnished, and it is on the Internet. Commissioner Cook stated he is concerned because not everyone has a computer, and it is the responsibility of the Clerk to provide copies of the agenda. Chairman O?Brien stated it can be obtained at all public libraries and on the S Drive; and if they are not connected, they can notify the Clerk for copies. Commissioner Cook stated the Board should take a position that hard copies be made available to the public.

Chairman O?Brien recommended County Manager Tom Jenkins send a letter to the Clerk advising that it is not appropriate, and it is in the best interest of the public that hard copies be available to anyone who wants them.

PUBLIC HEARING, RE: ZONING RECOMMENDATIONS OF JULY 1, 1996 AND OCTOBER 7, 1996, RE: ITEMS 34 AND 8

Chairman O?Brien called for the public hearing to consider the recommendations of the Planning and Zoning (P&Z) Board made at its public hearings on July 1, 1996 and October 7, 1996, as follows:

Item 34. Bill B. Hesher and Leonard D. Jones, a partnership d/b/a CHEMKO?s request for CUP for towers and antennae in AU and BU-1 zoning classifications on 7.25 acres located on the east side of U.S. 1, north of Flounder Creek Road, which was approved by the P&Z Board.

Zoning Official Rick Enos advised the applicants withdrew the request. The Board accepted withdrawal of Item 34.

Item 8. Patricia Louise Isobelle Ramsey Vance?s request for expansion of the Mixed Use District and change from AU to BU-2 on 5.51 acres located on the east side of North Courtenay Parkway north of and adjacent to the Brevard County Deep Well Disposal Plant, which was approved by the Local Planning Agency for expansion of the MUD, and approved as BU-1 for a depth of 100 feet and BU-2 on remainder of the property by the P&Z Board.

Motion by Commissioner Cook, seconded by Commissioner Higgs, to continue the public hearing on Item 8, Patricia Louise Isobelle Ramsey Vance?s request for expansion of MUD and change from AU to BU-2 on 5.51 acres located on the east side of North Courtenay Parkway until January 27, 1997. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ZONING RECOMMENDATIONS OF NOVEMBER 4, 1996 Chairman O?Brien called for the public hearing to consider the recommendations of the Planning and Zoning (P&Z) Board, made at its public hearing on November 4, 1996, as follows:

Item 1. Pineda Plaza, Inc.?s request for CUP for alcoholic beverages for on-premises consumption in BU-1 zoning classification on 2.91 acres located on the southeast corner of Pineda Causeway and Wickham Road, which was approved for Unit #121 by the P&Z Board.

Commissioner Cook recommended approval with the stipulation that the CUP be only for a restaurant and only apply to Unit 121.

Motion by Commissioner Cook, seconded by Commissioner Higgs, to approve Item 1 as recommended by the P&Z Board and with the stipulation that the CUP be only for a restaurant and apply only to Unit 121. Motion carried and ordered unanimously.

Item 2. Thomas P. Harmony?s request for CUP for security mobile home in AU zoning classification on 20.1 acres located on the south side of Pluckebaum Road, east of Range Road, which was approved by the P&Z Board for two years with three administrative renewals.

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

Item 3. Promenade Development Group, Ltd.?s request for CUP for alcoholic beverages for on-premises consumption in BU-1 zoning classification on 9.445 acres located on the west side of Wickham Road, north of Pinehurst Avenue, which was approved by the P&Z Board for Unit #103.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to approve Item 3 as recommended by the P&Z Board and with the stipulation that the CUP be only for a restaurant and only apply to Unit #103. Motion carried and ordered unanimously.

Item 4. Central Seafood Co., Inc.?s request for change from AU with BSP to SR on 1.35 acres located on the west side of SR A1A, north of Turtle Bay Place, which was approved by the P&Z Board.

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

Item 5. Vincent H. and Margaret E. Angleton?s request for CUP for adult congregate living facility in AU zoning classification on 4.53 acres located on the south side of Eber Road, west of Dairy Road, which was approved by the P&Z Board.

Commissioner Higgs advised she looked at the property and there were no signs posted; and inquired if signs should have been on Eber Road, and who was noticed; with Mr. Enos responding they have affidavits in the file from everybody over 500 feet that were notified. Commissioner Higgs inquired how many notices were sent out, and did anyone object at the P&Z Board hearing; with Mr. Enos responding about 36 notices were sent out and no one objected.

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

Item 6. Brevard County Board of County Commissioners? request for change from BU-1 to GML on 2.25 acres located on the east side of Ron Beatty Boulevard, south of Barefoot Boulevard, which was approved by the P&Z Board.

Motion by Commissioner Higgs, seconded by Commissioner Cook, to approve Item 6 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 7. Little Numbers Day Care, Inc.?s request for change from AU to BU-1-A on 1.25 acres located on the east side of Babcock Street, south of Valkaria Road, which was approved by the P&Z Board, limited to a child care center.

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

Item 8. Floridron (South Shores) Limited, Inc.?s request for CUP for recreational/residential marina in RA-2-10 zoning classification on 9.09? acres located on the Indian River immediately west of South Shores Subdivision, which had no recommendation from the P&Z Board as a result of a split vote.

Brian Sculthorp, Project Director of the Development, requested approval of the CUP for a fishing pier and boat slips. He stated they are concerned about the environment; they surveyed water depths and submerged vegetation; and it will allow them to gain access to deep water and minimize impact on sea grasses. He stated he met with the residents of Lighthouse Cove; there was opposition from some residents; but they have the support of 61 local residents, including 8 from Lighthouse Cove. He noted the Consents and Joinders were recorded in ORB 3557, PGs 4629-4658 on the old plat for South Shores. Mr. Sculthorp advised there is 1,420 feet of river frontage.

Ed Fleis advised the request is for a CUP for a proposed residential multi-slip dock; they are proposing to build nine slips; they have 1,420 feet of shoreline; and the boat dock would be 123 feet from the property line and 220 feet from existing fishing pier on Lighthouse Cove property. He stated the number of wet slips is based on the number of upland units; under federal regulations, it is one slip for each 100 feet of shoreline; consequently, they could put 14 slips on the site, but the amount of covered area preempts that. He stated based on the 1,420 feet, they would be allowed 10 slips. Mr. Fleis advised they will have to meet State requirements under aquatic preserves which are very stringent; and the St. Johns River Water Management District and Corps of Engineers are the reviewing agencies. He stated they will not have fuel pumps or live-aboards; the request is consistent with the CUP and water quality; it is within an area of Class II waters and designed to meet aquatic preserve criteria; and it will be close to the channel that goes to the intercoastal waterway. He presented and explained a drawing of the project; and stated in choosing the location, they looked at submerged lands and vegetation, and plan to put a conservation easement along the shoreline to restrict any more boat docks in the area. He noted they will add the items he presented to the binding development plan.

Roy Cowell, Director of Planning for Stottler Starmer & Associates, agent for Indian Bay, owner of 40 acres on the north side of the project, advised they have no objection to the request as it will be the appropriate thing to do. He asked supporters from Lighthouse Cove to stand.

David Hoopes, representing Lighthouse Cove Owners Association, advised the Board has two petitions from them with 60 signatures and 40 others from South Beaches area residents; there is significant support for their concern over the marina; and read a statement from the residents and boaters. He requested the Board make a contribution to preserve the health and beauty of the Indian River Lagoon.

Herb Sondericker, representing Lighthouse Cove residents, advised they oppose the building of a marina, as their environmental goal is to create the blueway and protect the waters from development that will dirty the lagoon. He mentioned deleterious effects of a marina, such as erosion of shoreline, disruption of sea grass beds, injury and death to wildlife, and environmental destruction; and stated boats under 26 feet are not equipped to carry sanitation devices, and without such devices many boaters will use home-made containers and dump waste overboard thereby damaging water quality and marine life. He stated there are slips available for the general public that are unused; and if a marina is built, they will not be able to enjoy the wildlife.

Ed Fleis advised they are not developing the shore line which will be 100% in the conservation easement; the natural habitat is mangroves; and they will have elevated structures above the vegetation. He stated part of the mitigation plan is removal of pepper trees and putting in of desired wetland plants; and they have taken a lot of steps to be conscious of the environment, natural wildlife, protection of manatees and sea grasses, and preservation of the habitat, but are being criticized for not doing enough. He stated in case of a storm, the boats will have to be removed and stored in Canal 4, or they will have to put in boat lifts. Mr. Fleis stated it is under review by the St. Johns District which has to give them the final decision, but they have been very aware of the environment in their approach; and they analyzed situations and minimized impacts. He requested the Board approve the CUP.

Leonard Sculthorp, Chairman of Floridron, representing 300 future residents who will expect all the benefits of ocean to river access, advised they have put forward a well-balanced and modest plan; and requested the Board?s approval.

Commissioner Higgs advised she met with Herb Sondericker and George Cobeck on this item, and they raised concerns about gas and oil, and wildlife; and she met with Ed Fleis and Mr. Sculthorp who pointed out the deep water in the area and explained the wetlands, nine slips, and other parts of the project. She stated she talked to a lot of people in Lighthouse Cove who have concerns about oil and gas leaks; Mr. Fleis mentioned the lifts would be voluntary; and inquired if it could be put in the BDP as a requirement; with Mr. Fleis responding in a major storm event, the boats will be taken out of the water; and they will take it under advisement, but prefer to not make it a binding requirement. Commissioner Higgs advised it could be a condition of the CUP if the Board chooses. Chairman O?Brien stated anyone who owns a small craft less than 25 feet would not leave their boat in the water, and a prudent boat owner would put in a lift.

Brian Sculthorp advised the location of the dock is subject to review by the St. Johns River Water Management District and Corps of Engineers; they are willing to move it, but have to hear what those agencies say; and it is more than just moving it from Lighthouse Cove pier. He stated it has to be 25 feet from the riparian line and no closer than 220 feet; they will try to adjust it; but until they hear from the District, they will not know the exact location.

Discussion ensued on conditions of the surrounding area, potential impacts, State and federal criteria, Manatee Plan, number of boat slips allowed and planned, conservation easement, aquatic preserve, protected species, slip ratio of the Florida Administrative Code, distance from the fishing pier of Lighthouse Cove, water quality criteria, no wake zones, signage and speed limits, environmental issues, distance between docks, requiring lifts adding cost to homeowners, and sanitation facilities.

Motion by Commissioner Higgs, to approve Item 8, with applicant providing lifts for nine slips. Motion died for lack of a second.

Motion by Commissioner Higgs, seconded by Commissioner Cook, to require the dock be moved as far north as possible with a minimum of 220 feet. Motion carried and ordered unanimously.

Motion by Commissioner Higgs, seconded by Commissioner Cook, to require that no other docks be permitted within the 1,420 feet of shore. Motion carried and ordered unanimously.

Motion by Commissioner Higgs, seconded by Commissioner Cook, to require that slips only be available to residents of the development. Motion carried and ordered unanimously.

Motion by Commissioner Higgs, seconded by Commissioner Voltz, to require that no overnight boarders be allowed on docked boats. Motion carried and ordered unanimously.

Motion by Commissioner Higgs, seconded by Commissioner Voltz, to require applicant to put up signage indicating depth and sea grass areas and to maintain signs on the property in close proximity to the dock and in appropriate locations. Motion carried and ordered unanimously.

Motion by Commissioner Cook, seconded by Commissioner Voltz, to approve Item 8 for a conditional use permit with conditions noted above. Motion carried and ordered; Commissioner Higgs voted nay.

Commissioner Higgs advised she would have voted for it if it required the lifts.

The meeting recessed at 7:01 p.m. and reconvened at 7:15 p.m.

Item 9. Quads Trust Company?s request for change from BU-1 to BU-2 on 3.47 acres located on the east side of North Courtenay Parkway, north of East Crisafulli Road, which was approved by the P&Z Board as requested, with a binding development plan as voluntarily offered by the applicant indicating that the 30 feet of natural vegetation along the frontage to be retained.

Roy Cowell advised of surrounding uses; described pictures of the area and the property; and stated the environment is not reflective of upscale retail, and is really a service area. He stated the request is for warehouses; the use is economically sound in terms of income and tax revenue with no impact on utilities; and staff?s worksheet states there is no conflict with the Comprehensive Plan. He read and explained Policy 4.7 and how they comply with it; explained a drawing of the property with a 30-foot natural buffer of heavy vegetation that will not make the building visible from North Courtenay Parkway; and stated in the binding development plan they will agree to maintain the buffer along North Courtenay and between the structure and residential lands to the east. He requested the Board following the P&Z Board?s recommendation and approve the request with a BDP.

Doug Nguyer advised he has no objection to the change in zoning, but is concerned about the buffer zone between the property and his property which is residential. He stated the buffer has to be opaque; the BDP states a 20-foot buffer zone; and inquired if he can be guaranteed that at all times the buffer will be opaque. He suggested the Board require in the BDP that they maintain the opaqueness of the buffer at all times. Commissioner Cook stated that is a stipulation in the Code. Mr. Enos stated it requires an opaque buffer to a height of six feet, and the applicant has a choice of how to provide it. He noted it could be vegetation or a structural barrier.

Discussion ensued on the buffer, what happens if vegetation dies, using the building as a buffer, no structures within the buffer zone, no CUP for warehouses in BU-1, and limiting the use in BU-2 to mini-warehouses and nothing else.

Mr. Cowell advised the applicant agrees to the limitation of warehouse and if he decides to change it he could come back to the Board with a new BDP.

Motion by Commissioner Cook, seconded by Commissioner Voltz, to approve Item 9, as recommended by the P&Z Board, with binding development plan (BDP) offered by applicant indicating 30-foot natural vegetation along SR 3 frontage be retained; 20-foot opaque buffer on the east side shall always be there; use limited to mini-warehouses and restricted to storage; and no manufacturing on the property. Motion carried and ordered unanimously.

Item 10. 4 G?s of Brevard County, Inc.?s request for change from GU to ARR on 1.16 acres located on the north side of Dyson Avenue, east of Satellite Boulevard, which was approved by the P&Z Board.

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

Item 11. Jack and Sue Ellen Kauble?s request for change from AU to TR-1 on .14 acre located on the north side of Lutz Street, west of U.S. 1, which was approved by the P&Z Board.

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

Item 13. Mitchell S. Goldman and Louis C. Morehead, III?s request for change from RU-1-7 to BU-1-A on .39? acre located on the northeast corner of Palm Street and Manth Avenue, with motion for RP resulting in a split vote.

Mitch Goldman advised they requested BU-1-A, and staff suggested RP; and explained a map of the property and surrounding properties in the area. He stated the area has changed; the Board expanded the Mixed Use District in 1993; Publix has gone in; it increased traffic on U.S. 1; people are using other streets to avoid U.S. 1; and requested the two lots, which are in a better position for upgrade in zoning than others, be changed to reflect what is happening in the area. He stated the Board wants to keep development along the outer corridor; and they would like to have professional space for doctors, realtors, or multi-unit development, and be consistent with the growth in the area.

Commissioner Scarborough stated as the Publix was put in, the drainage was part of a major drainage project the County is working on; it is large, landscaped, and has buffers; behind Publix is a major transitional area from one side of the street to the other; there are single family homes on one side and people shopping on the other side; and it would be additional intrusion into the residential area, so he will have to deny the request because it should stop at the drainage canal.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to overrule the P&Z Board and deny Item 13.

Mr. Goldman explained a drawing; and stated they are not asking for BU-1, but are asking for something less; there is a ditch; the five lots within the MUD could be changed to BU-1; there is no functional distinction; and the same should apply to his lots. Chairman O?Brien stated just because a mistake was made before does not mean the Board should repeat the mistake.

Commissioner Higgs advised she will support the motion because the site is located at an intersection and intrudes into a residential area; and it is inconsistent with the criteria for commercial clusters and the character of the existing area.

Chairman O?Brien called for a vote on the motion. Motion carried and ordered unanimously.

Item 12. Modern, Inc.?s request for CUP for land alteration in GU zoning classification on 17.8? acres located on the west side of SR 405, north of SR 50, which was approved by the P&Z Board.

Commissioner Scarborough advised he was concerned about the traffic and asked Bill Osborne, Traffic Engineering Director, to provide the Board with a memo. He stated he is also concerned about the timing with the construction that is going on which will be completed in February, 1997, and the capacity for a turn lane on a very busy street. He suggested allowing them to proceed only after construction is completed and signalization is installed at the new entrance for Park Avenue. He stated Mr. Osborne suggested a turn lane for trucks until it is done, and then it can be removed, but that would not be part of the motion and just a suggestion.

Rodney Honeycutt, representing the applicant, advised what Mr. Osborne responded to is that they show a haul route from the site to the Lowe?s site that is under construction now which is about a mile to the south; and he is referring to the fact there will be trucks headed up and down the road. He stated they changed it since they made the submittal; they went to the site and located the wetlands, and have to permit the facility through the Office of Natural Resources Management; they will not be able to impact wetlands; and there are enough wetlands on site that it limits it to a smaller site so they do not want to use it for Lowe?s now, and have not applied for a permit. He stated the Lowe?s site will be constructed before they could ever get a permit; and with that in mind, the applicant is still interested in having an area that is large enough that requires a CUP. He stated they have two pits in the area which are used for the mulching facility that were small enough they did not require CUP, and this will make it exceed it. Mr. Honeycutt advised even though they are looking at a couple of acres and not seven acres now, they would be open to not doing anything until the traffic signal is installed; however, the expense of a bypass lane would make it difficult to do.

Commissioner Scarborough recommended asking Florida Department of Transportation to consider if a bypass lane is needed, because he does not want to say not to look at it. He inquired if it would be acceptable to ask Florida Department of Transportation to make that determination; with Mr. Honeycutt responding they have applied for a temporary access to the site and would be surprised if Florida Department of Transportation requires a bypass lane. Commissioner Scarborough stated he travels the route a lot and there are accidents all the time; the City is putting signalization on the new Park Avenue which will lessen the impact; but Mr. Osborne was concerned about the trucks because they are slow and could cause traffic problems.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to approve Item 12 as recommended by the P&Z Board, only after completion of construction and signalization at Park Avenue and SR 405; and direct staff to request Florida Department of Transportation to make a determination on a bypass lane. Motion carried and ordered unanimously.

Administrative Rezoning in West Canaveral Groves Study Area.

Item 14. Judith A. Gallas-Miller. Parcel ID #24 352901, Blk. 4, Lots 10 and 11, from RRMH-1 to ARR, which was approved by the P&Z Board.

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

Item 15. Shirley M. Pederson. Parcel ID #24 352001, Blk. 17, Lot 12, from RRMH-1 to ARR, which was approved by the P&Z Board.

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

Item 16. Dixie L. Railey. Parcel ID #24 352001, Blk. 16, Lots 20 and 21, from RRMH-1 to ARR, which was approved by the P&Z Board.

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

Item 17. Zoning Official?s Report. Zoning Official Rick Enos advised zoning was overturned in court for the Heinz-Knobel item on Merritt Island and Gary J. Coppola item in District 3; he was requested by the County Attorney to ask the Board to initiate administrative rezoning on the items; and requested permission to proceed if that is the desire of the Board. Mr. Enos stated the owner of the Coppola property may request his own rezoning, but will probably request the fees be waived, which is the same as administrative rezoning cost-wise.

Commissioner Higgs advised she does not have information to deal with the items, and would not want to deal with them without further information; with Mr. Enos responding he was asked by the County Attorney to bring it to the Board.

Assistant County Attorney Katherine Harasz advised she did not represent the cases and does not know if the court order reversed the Board?s decision because it did not have enough competent and substantial evidence to support its decision, and can have another rehearing and perhaps take the evidence that is required, or whether the court said no, the competent and substantial evidence is in favor of the applicant. She stated it may be that the Board could have a new hearing on the zoning application, but it would want to make sure it has the competent and substantial evidence that is required to support its position. She stated she does not have that information, but could get a memo to the Board tomorrow.

Commissioner Higgs stated with the District 3 issue, the court raised the issue that the Board did not allow the applicant due process when the applicant was not allowed to speak after the motion was made which was not the same motion that they requested. She stated the Board is dealing with intricate issues on how to deal with zoning items; so it should be brought back for full discussion to deal with both issues. She recommended December 17, 1996.

Commissioner Scarborough recommended December 10, 1996, because there may be a time limit if there is opportunity to appeal.

Commissioner Higgs requested the County Attorney get the information to the Commissioners as soon as possible so they can vote with some level of knowledge.

Chairman O?Brien instructed the County Attorney to provide more information to each Commissioner on the Heinz-Knobel case and Gary J. Coppola case, and schedule it on the Agenda for December 10, 1996, to avoid passing the opportunity to appeal.

Ms. Harasz advised she will provide each Commissioner with the input tomorrow and return to the Board on December 10, 1996.

Upon motion and vote, the meeting adjourned at 7:57 p.m.

RANDY O?BRIEN, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

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