August 5, 2004

The Board of County Commissioners of Brevard County, Florida, met in regular session on August 5, 2004, at 5:30 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chair Nancy Higgs, Commissioners Truman Scarborough, Ron Pritchard, Susan Carlson, and Jackie Colon, Assistant County Manager Peggy Busacca, and Assistant County Attorney Eden Bentley.

The Invocation was given by Reverend Al Smith, Merritt Island Presbyterian Church, Merritt Island, Florida.

Commissioner Nancy Higgs led the assembly in the Pledge of Allegiance.

REPORT, RE: SCHOOL IMPACT FEE

Commissioner Scarborough stated Tuesday, August 10, 2004, the Board will be considering the school impact fee issue; and requested Ms. Busacca provide an overview of what will be considered and the implications.

Assistant County Manager Peggy Busacca stated there will be consideration of an ordinance that would establish school impact fees for all areas within the County regardless of whether in the incorporated or unincorporated area; the Board may choose to adopt an ordinance that would only be effective within the unincorporated areas; and that will be one point of discussion. She stated in addition, there has been a 100% number that has been calculated, which is the impact for a residence based on its impact to the schools; and the Board may consider adopting it at 100% or at some lower percentage.

REPORT, RE: USE OF STATIONERY

Commissioner Pritchard stated some people may have heard that he jumped out of an airplane and landed safely; but the interesting thing that happened after that was the brouhaha about whether or not there had been an inappropriate use of stationery by his office; it turns out it was not inappropriate; but he received numerous phone calls from people wishing to contribute $5 toward his fund and one person sent a check. He stated he does not need the money, is not going to accept it, and will return the check. He stated it was interesting that the story would generate so much support; he appreciates those who made phone calls to him as well as to the local newspaper, and those who offered to contribute to the fund.

ANNOUNCEMENT

Chair Higgs stated on Tuesday, August 10, 2004, Senator Bill Nelson will speak to the Board under her report about key issues of importance to the County.

RESOLUTION, RE: CONGRATULATING COCOA EXPO UNDER 18 BOYS SOCCER TEAM

Assistant Coach Jim McGrory introduced the team members and Coach Gerry Queen.

Commissioner Scarborough read aloud a resolution congratulating the Cocoa Expo Under 18 Boys Soccer Team for winning the United States Youth Soccer Association National League Director’s Cup in the Boys’ Under 18 category.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to adopt Resolution congratulating the Cocoa Expo Under 18 Boys Soccer Team for winning the United States Youth Soccer Association National League Director’s Cup in the Boys’ Under 18 category. Motion carried and ordered unanimously.

Commissioner Scarborough presented the Resolution to Coach McGrory and the team. Coach McGrory stated they started five years ago to put the team together; a lot of the boys have been together since they were 13 years of age; and they have come close in State championships, but this was their ultimate goal. He advised seven of the team members will be leaving for soccer scholarships at various colleges throughout the country; their dedication in the past year has been unbelievable; and they definitely demonstrated teamwork this past weekend in Indiana. He stated they are the first team in the State of Florida to have done this; and it is great for the soccer program of the County. He expressed appreciation to the Board for the Resolution.

Chair Higgs stated the Board is glad the team was successful and is proud to have the team present tonight; and thanked the team for letting everyone share this achievement with them.

PROCEDURE FOR ADDRESSING THE BOARD

Chair Higgs advised of the need to submit speaker cards, and of availability of agendas. She explained the procedure to address the Board and the time limits.

REPORT, RE: TABLED ITEMS

Commissioner Pritchard stated there have been requests to table IV.B.13, and Mr. Williams is present to speak if necessary; and IV.B.15, and Mr. Nohrr is present to speak if necessary.

Chair Higgs stated there are people who are in opposition to IV.B.15; and they wish to speak to that issue. She suggested going through all the items to be tabled and dealing with them.

Zoning Official Rick Enos advised there are three types of tablings; the first are those that have already been tabled by the Planning and Zoning Board; they would come back to the Board on September 2, 2004; and they are Items IV.B.29, IV.D.1, and IV.D.2.

Item IV.B.29. (Z0405103) Seasons in the Sun, LLC’s request for amendment to existing Binding Development Plan in an RVP zone on 38.10 acres; and change from RVP with Binding Development Plan to RU-1-8 with amendment to existing Binding Development Plan on 79.13 acres located on the south side of SR 46 and east side of Turpentine Road, which was recommended by the P&Z Board for tabling to the August 9, 2004 P&Z Board meeting and the September 2, 2004 Board of County Commissioners meeting.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to table Item IV.B.29 to the August 9, 2004 P&Z meeting and the September 2, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item IV.D.1. (NMI40701) Chauncey Patrick Dunn and Carol Anne Dunn’s request for change from SR to RR-1 on one acre located on the east side of Patti Drive, north of Fay Drive, which was recommended by the North Merritt Island Dependent Special District Board for tabling to the August 12, 2004 NMI meeting and the September 2, 2004 Board of County Commissioners meeting.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to table Item IV.D.1 to the August 12, 2004 NMI meeting and the September 2, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item IV.D.2. (NMI40702) Intracoastal Group, Inc. and Charles D. and Beverly A. Crisafulli’s request for change from GU to AU on 50 acres located on the south side of Chase Hammock Road, east of Winding Way, which was recommended by the North Merritt Island Dependent Special District Board for tabling to the August 12, 2004 NMI meeting and the September 2, 2004 Board of County Commissioners meeting.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to table Item IV.D.2 to the August 12, 2004 NMI meeting and the September 2, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Mr. Enos stated there are three items that were requested by the applicants at least seven days before the meeting, which are considered automatic tabling; and those items are IV.A.2, IV.B.5, and IV.B.7.

Item IV.A.2. (Z0405101) Lawrence W. Lucas, Lloyd and Jacqueline Louise Lucas, James and Linda S. Lucas, and Housing Authority of Brevard County’s request for change from
AU and RU-1-8 to RU-1-11 with Binding Development Plan on 105.71 acres located on the northeast corner of Wiley Avenue and US 1, which was recommended for denial by the P&Z Board.

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

Item IV.B.5. (Z0407103) Ben H. Sims, Darlyne S. Smith, and Carolyn I. Henderson’s request for change from AU to SR with Binding Development Plan on 66 acres located on the north side of Jay Jay Road, east of US 1, which was recommended by the P&Z Board for denial.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to table Item IV.B.5 to the September 2, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item IV.B.7. (Z0407105) David C. and Cynthia R. Ramage’s request for change from IU to RU-1-11 with Binding Development Plan on 40.067± acres located on the west side of Harry T. Moore Avenue, north of Wiley Road, which was recommended by the P&Z Board for approval as GU.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to table Item IV.B.7 to the September 2, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Mr. Enos stated there are three items that have been requested for tabling within the last seven days; and those are not automatic. He stated they are IV.B.15, IV.B.20, and IV.B.22; he understands IV.B.13 is also requested for tabling; and if tabled, it would be to the September 2, 2004 Board of County Commissioners meeting.

Chair Higgs stated people are present to address Item IV.B.15; and inquired if anyone is present on the other items. No response was heard.

Commissioner Colon inquired why is IV.B.15 not being tabled; with Chair Higgs responding there are people who wish to speak to the item, so the Board needs to have some discussion on it to decide what it wants to do.

Item IV.B.13. (Z0407203) Steven J. and Beth M. Hoskins, Jason Carmine Uvaro, Michael Francis Duffield and Carl F. Uvaro’s request for change from BU-1 to RU-2-15 with Binding Development Plan on 1.41 acres located on the southeast corner of 20th Street and South Orlando Avenue and having frontage on the west side of South Atlantic Avenue and the north side of Summer Street, which was recommended for denial by the P&Z Board.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to table Item IV.B.13 to the September 2, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item IV.B.20. (Z0407304) Fedd Investment Corporation’s request for Small Scale Plan Amendment to change the Future land Use Map designation from Residential 1 to Community Commercial, and zoning from GU to BU-2 on 6.2 acres; and from GU to SR with a Binding Development Plan on 29.3 acres located on the south side of Valkaria Road, west of US 1, which was recommended for approval by the LPA and approval by the P&Z Board of BU-2 on 6.2 acres with BDP stipulating keeping all outside storage behind the buildings, and excluding convenience stores and strip shopping centers, and approve SR on 29.3 acres with Binding Development Plan limiting development to one unit per acre maximum density.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to table Item IV.B.20 to the September 2, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item IV.B.22. (Z0407402) Antonio Z. Camara, Jr. and Mary A. Camara, Co-Trustees’ request for Small Scale Plan Amendment to change the Future Land Use Map designation from Community Commercial to Residential 10, and zoning from BU-1 to TU-2-10 with a CUP for Residential/Recreational Marina on four acres located on the east side of US 1, north of Otter Creek Lane, which was recommended by the LPA for denial, and by the P&Z Board for denial.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to table Item IV.B.22 to the September 2, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item IV.B.15. (Z0407205) Lavina H. and Alfred B. Humphrys, as Trustees’ request for change from EU and RU-1-9 to RU-2-8 on 27.4± acres located on the west side of North Tropical Trail, south of Crockett Boulevard, which was recommended by the P&Z Board for denial.

Chair Higgs inquired if the Board wants to hear the discussion on tabling, which may be lengthy, by pulling Item IV.B.15 forward, or take the Agenda in order. She stated she has some concerns about pulling it out because there are 14 other items with people present to speak to them. Commissioner Pritchard stated his office spoke with representatives regarding Item IV.B.15 earlier today; at that time, they said there was a request to table; and he said he would be making that motion. He stated people asked if they could come and speak on the item; he told them it would be better to come and speak when the item is ripe because he did not want them to come and sit until late tonight when the Board is not going to act on the item. He stated the Board may wish to hear from Mr. Nohrr about why they wish to table this so it might make more sense; and reiterated he does not want people to sit for hours for no good reason
because the Board most likely will not take action on the item.

Commissioner Colon stated she is always uncomfortable having people wait and then have items be tabled so they have to come back; and she would like everyone to speak at the same time.

Commissioner Carlson stated she met with a group of the people who are here today; their issues are that they did not like the proposed zoning and wanted to see a small area plan
looked at because of the difference between what is on the Comp Plan and what is actually existing; and they did not want to have to be here several times months from now. She stated the item was recommended for denial; and they want to see it denied.

Commissioner Scarborough stated he will have to declare a voting conflict as he represented the Humphrys at one time; and although he has not represented them for some time, there is an opinion that says that as an attorney, one has a continuing ethical obligation, and through the obligation, the attorney may be bound to do things that are contrary and conflicting, so he cannot vote.

Commissioner Colon stated all of the Commissioners have gotten feedback concerning what the community’s concerns are; and the more they are able to bring the parties together is going to be a plus for both sides. She stated there would be an opportunity for the Commissioner of that District to spend more time trying to clarify the issue.

Chair Higgs stated she is concerned that there are 15 other items; and if people want to speak on it, the Board should hear it in order.

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to table Item IV.B.15 to September 2, 2004. Motion did not carry. Commissioners Pritchard and Colon voted aye; Commissioners Higgs and Carlson voted nay. Commissioner Scarborough abstained.

Chair Higgs stated the item will be taken in order of the agenda.

PUBLIC HEARING, RE: TABLED ITEMS OF PLANNING AND ZONING BOARD MEETINGS
OF APRIL 12, 2004 AND MAY 10, 2004

Chair Higgs called for the public hearing to consider the tabled items of the Planning and Zoning Board meetings of April 12 and May 10, 2004, as follows:

Item IV.A.1. (Z0404501) Carol I. Flack, Guy Hendricks III, Barbara Lee Hendricks, Mary Carter (f/k/a Mary Beth Hendricks), Teresa Irene Hendricks and Christine Anne Hendricks’ request for change from AU and RU-1-7 to RU-1-13 on 17.33 acres located on the northwest corner of Indiana Avenue and Seminole Boulevard, which was recommended for approval by the P&Z Board with a Binding Development Plan limiting development to 39 lots.

Philip Nohrr, representing the applicants, stated this matter has been delayed in coming before the Board as they attempted to work with the neighbors, especially those to the east in Pine Meadow Estates; there have been a number of meetings in Commissioner Colon’s office at which he was not present; but the parties have been attempting to come together and work out the issues that are separating them; and hopefully, they have succeeded in doing that. He stated the parcel in question is 17.33 acres of land on the northeast corner of Indiana Avenue and Seminole Boulevard and currently the westerly portion is zoned RU-1-7, and the east portion is zoned AU. He stated the east portion is immediately next to Pine Meadows; and there have been concerns as to how that is going to be developed. He stated 38 units are currently allowed to be developed on the total parcel; and as a result of the concerns of the Pine Meadow Estates people, they have submitted a binding development plan proposal that would provide that they would develop the entire 17.33 acres under the Open Space Ordinance; and Parcel B, which is the easterly AU parcel that is closest to Pine Meadows, would be developed under an RR-1 zoning with minimum one-half acre lots. He stated in addition they would develop no more than eight lots and would include a 50-foot wide buffer along the east border, which is the west border of Pine Meadows Estates; and the balance of the land would be developed in 50-foot by 80-foot lots. He stated the Board has seen a conceptual layout; many of the lots are 100 feet rather than 80 feet; and they have agreed to a total not to exceed 37 lots, which is one less than what is currently in front of the Board. He noted a lot of time has gone into this along with a input from the neighbors; they have worked under Commissioner Colon’s guidance to get to this point; and they believe it is acceptable. He stated the neighbors in Pine Meadows can speak for themselves if they are present tonight; but he thinks they have bridged the gap. He stated he is willing to take any questions or comments, and their engineer is present to respond to technical details. He stated this is not an increased zoning density; they have significant buffering to the neighbors to the east; and they have limited development on the eastern portion of the property. He stated they would like to go forward with the development, which they believe will be a significant upgrade to the community to the west.

Doug Padgett stated he is a homeowner in Pine Meadows Estates; he has met diligently with his neighbors; and thanked Commissioner Colon for pushing this along so they could interact with the applicant. He thanked the Planning and Zoning Department for its help in coming up with something that was palatable; stated they always knew the property would be developed; they are not against development, but want it done in a quality manner; and they have gotten to that point. He stated he and most of his neighbors who met the other night are in compliance with the wishes of the applicant to approve this plan; but they would like to make sure that the binding development plan shown is closely adhered to. He stated it would be difficult to verbally lay out the plan, but they would like to make sure that the plan offered tonight is strictly followed. He stated he realizes the applicant has not gone to West Melbourne; they will need sewer on the smaller lots; and if for any reason they do not get sewer, they would have to come back to the Board for a change to the binding development plan and/or go to larger lots to accommodate the septic tanks. He stated they have no problem with this as long as they can be assured they follow the basic plan and hand drawn sketch that staff worked from; and they are in favor of the Board approving it at this time.

Doug Samuels, resident of Pine Meadows, stated he stood before the Board a couple of months ago in vehement opposition to this development; but he is here today to express his appreciation and change of position based on the tireless efforts of Mr. Padgett, Commissioner Colon’s office, and the developer who came up with a plan that is an example of tremendous cooperative action and actually improves the community. He stated they were concerned about somebody coming in and enriching themselves at the expense of the Pine Meadows’ residents; but what they see now in this development is a plan that is a model for development and an improvement to the community. He expressed appreciation to the Commissioners who spent time on this and tried to do the right thing for the community in the long view; stated there was compromise all the way around; but he really appreciates the leadership expressed by Commissioner Colon in getting the parties together and getting them to this point. He stated he represents himself; he considers himself to be an expert in cooperative action; and this whole development activity is a model for development in the community. He stated he supports the plan as has been presented.

Chair Higgs stated she met with Mr. Nohrr, Mr. Padgett, and Mr. Samuels as well as the applicant in May when this was heard the first time.

Commissioner Scarborough stated this is not a binding site plan but something that is being suggested as what may occur; and inquired if they are binding to the plan or not. Mr. Nohrr responded the draft of the binding development agreement as submitted does not have it, but they can submit the attachment as well; and it is their intention to develop according to that. Commissioner Scarborough stated he just wanted to be sure what he was voting on. Chair Higgs stated if it was attached, they would run into the same problem as there was on the development in Merritt Island, where if it was on the draft picture, it was considered to be binding and would have to be reviewed by the development staff. Commissioner Scarborough stated that is right; but the binding development plan will come back to the Board for approval; and the Board can ask staff at this time to see that there is nothing in the plan that is inconsistent so they can be bound to it. He stated otherwise there is an ability to have people thinking they are doing one thing when actually it is another; Mr. Nohrr is willing to go in that direction; and the Board is not requiring it with the binding development plan, but it has been suggested that is the plan. Mr. Nohrr stated they have no problem with it, and the original plan comes from staff.

Commissioner Colon stated when this issue first came before the Board, there was great opposition from the community; they were afraid of the kind of development that was going to happen; there is concern about what is happening in West Melbourne with cookie-cutter style development; and they were able to sit down and see how to protect the integrity of the community. She advised Commissioner Scarborough that this might be something the area of Riveredge Drive might want to look at because it was interesting how it came about. She stated they were able to get the Planning and Zoning Department involved; they have a great deal of 100-year old trees in the area that they did not want to be cut down; and they had great concern. She stated they needed to make sure there was retention, water, and sewer; at the last minute the greatest concern was that it was not just going to be lip service but that everything was in writing in a binding development plan; and the applicant was agreeable. She requested Mr. Enos provide some feedback on what transpired; stated it was an incredible combination of how they were able to work out half-acres plus the different densities; and it is almost like transitional zoning that is happening in this area, which is quite unique and impressive. Commissioner Colon stated they owe all the thanks to County staff, which worked very hard, thought outside the box, and put it together. Mr. Enos stated staff spent a lot of time with the applicant over the last three months; and he gives credit to Planner Alan Woolwich who is present tonight. He stated Mr. Woolwich was the one who met with the developers, walked the site, and determined, based on the vegetation and tree survey, where the best areas were to preserve; and the plan that is before the Board tonight is representative of those features that are most valuable and have been protected. He stated this is going to be a showpiece for the County.

Motion by Commissioner Colon, seconded by Commissioner Carlson, to approve Item IV.A.1 with a Binding Development Plan, limiting development not to exceed 37 lots.

Commissioner Carlson inquired if the motion includes what Commissioner Scarborough referenced in terms of review; with Commissioner Colon responding yes. Chair Higgs called for a vote on the motion. Motion carried and ordered unanimously.

Chair Colon expressed thanks to the applicant and the neighbors for their cooperation.

Item IV.A.3 (Z0405201) Bruce A. and Lynda L. Gutoski’s request for change from BU-1 to RU-2-15 on 1.18 acres located on the east side of south Banana River Drive, north of Worley Avenue, which was recommended for approval by the P&Z Board with a Binding Development Plan limiting development to an over-55 community.

Rochelle Lawandales, Lawandales Planning Affiliates, representing the applicant, submitted pictures to the Board of the subject property; and stated the property is located on South Banana River Drive. She stated they are looking to eliminate the existing business, which is a boat business on the site, and incorporate the land into the Marina Village project located next door; it is all going to become one project, part of which is currently under development; it is a high value project that is going to contribute positively in terms of fiscal impact; and the owners are agreeable to paying a voluntary contribution of $2,800 or whatever the fee is that the Board ends up adopting for school impact. She stated there are 15 units proposed on this development; and those who have been reserving the other portions of the development are empty nesters, retirees, and young professionals, so they do not believe the development will have much of an impact. She stated this is an urban area; it will contribute to the MIRA District; and it is compatible with the surrounding development. She stated they have a letter from the neighbor to the north, Mr. and Mrs. Ed Philbin, who have no objections to the project. She stated the project would eliminate some commercial uses in the area; and in terms of a binding development agreement, they would prefer to pay the impact fees as opposed to restricting the project to 55 years of age or older until such time as Merritt Island High School has additional capacity. She requested the Board’s consideration; and advised she would be happy to answer questions.

Chair Higgs stated the recommendation of the P&Z is for an over-55 community; and inquired is that part of the binding development plan or not. Ms. Lawandales responded between the time the P&Z Board met and now, the Board began to take action on impact fees; and it is their preference to be allowed to pay the impact fee and not restrict to 55 and older; however, if they need to restrict to 55 and older until such time as Merritt Island High School has capacity, they would do that. Chair Higgs inquired if that is part of the binding development plan for the whole project; with Ms. Lawandales responding there is a binding development plan on the remainder of the project, and it is stated that way.

Charles Overbey stated in the 1960’s he owned three lots directly across from the subject property, but they were disposed of a number of years ago; and currently he owns a number of lots to the north of this property, not immediately adjacent, but within the 500-foot designation. He stated he is glad to see some progress being made on South Banana River Drive between SR 520 and Worley Avenue; he has been waiting 40 years for a nice project to come along; and recommended the Board approve it.

James DeRiso stated he has only been on South Banana Drive for four years; when he and his wife first came to Merritt Island, they did not want to get into a planned community because of too much aggravation and regulation; and they found a nice neighborhood on South Banana River Drive. He stated after they bought their lot, people told them they had to be crazy to move to Angel City; but he does not think so because his neighbors are some of the nicest people he has ever met, and the developer actually lives in the Newfound Harbor area. He stated he and his wife walk on the road for exercise and talk to their neighbors; they are happy to see this coming; and advised of his neighbor Kathy Nelson’s approval of the proposed project. He commented on the positive impact on schools by additional revenue and the increased safety of not having boats on trailers going up and down the road. He stated the proposed project is eliminating a hazard; they have a right to do business; whatever the Board decides is what they will do; but he has talked to 20 or 30 people and they are happy to see the development happen. He stated it is a great thing for the community and the neighborhood.

Ms. Lawandales stated her client asked her to plead for mercy and asks that he be allowed to pay the impact fee as opposed to tying this to the other binding development plan.

Commissioner Pritchard stated his concern with development in any area is density; when he talks about density, he means number of people; and he is not a fan of condominiums because they pack a lot of people into an area. He stated he happens to think they would be much better served if they could all be on half-acre plus lots because it would reduce the number of people
and the impacts on the roads and everything else. He stated he is concerned about Banana River Drive because Item IV.B.14 has a parcel that backs up to a new 7-Eleven complex that they want to go to condominium; he is sure that a marina that is located south of the parcel will be doing the same; it has been there for 50 years, but the values of the properties have become such that this may be the only way these properties can be marketed; so he is facing a dilemma. Commissioner Pritchard stated he is not an advocate of condominiums, but he has the realization that maybe the value can only be obtained through this manner; and the question is how to balance that against the individual single-family residences that back up to the waterfront. He inquired where is the tradeoff; where does this stop; is the whole of Banana River going to become low-rise condominium development or will there be pockets of single-family residential because the parcels are smaller both north and south of the parcels; and what is the current zoning. Mr. Enos stated to the south of the parcel is RU-2-15, which is multifamily at 15 units to the acre; and to the north is RU-1-9, which is a single-family lot of 6,600 square feet with 66 feet in width. Commissioner Pritchard stated the RU-1-9 continues further up; and inquired if that is a continuation all the way up to the item that is under IV.B.14; with Mr. Enos responding yes, it goes quite a ways until it hits commercial. Commissioner Pritchard inquired if there is an opportunity for this type of development to occur again along the river’s edge or would they be held more to single-family residential; with Mr. Enos responding it would take rezoning for any of the parcels between this spot and the commercial to be anything other than single-family. Commissioner Pritchard inquired about heading south; with Mr. Enos responding to the south is pretty much all single-family. Commissioner Pritchard inquired how far south is the marina he was speaking about; with Mr. Enos responding he is not sure.

Mr. Overbey stated he owns the properties to the north within the 500 feet; the property immediately adjacent to his lots on the river is RU-2-10; immediately to the north of his property there is a nonconforming trailer court that has been there for years, the River Palms Trailer Court; and across from this area is Cocoa Beach, which has all those beautiful condominiums. He stated the river property is too valuable to be sitting with single-family houses on 66-foot lots in the area between Worley Avenue and the SR 520 Causeway; he has watched it for 40 years and it has commercial at the corner, then all sorts of businesses, a storage area, the trailer park that has approximately 1,300 feet on the river and on Pelican Creek, and RU-2-10 for 100 feet that was rezoned by the Board. He advised he went to those hearings quite a few years ago; the applicant said he was going to put up a nursing home; his property is right next to that; and between that and SR 520 there are businesses. He stated someone wants to put a condominium there; and he agrees as it would be an improvement.

Chair Higgs stated Mr. Overbey needs to make comments in regard to the zoning and not reargue the case. Mr. Overbey stated the Board needs to face the facts.

Commissioner Pritchard stated he appreciates Mr. Overbey’s comments; for him to use “condo” and “beautiful” in the same sentence is difficult because he is not a condo fan; he happens to think single-family is much nicer; but he realizes the area is in transition. He stated he knows the condition of the area; and he is going to support the motion for the rezoning so they can build.

Chair Higgs inquired what about the binding development plan; with Commissioner Pritchard responding it would be for the minimum of $2,800 or whatever the Board may go to.

Commissioner Colon stated she is trying to get some feedback as to the number of units; and suggested decreasing the units. Commissioner Pritchard stated there are only 15 units and in the complex south of it, there are 37. Commissioner Colon inquired about the acreage; with Mr. Enos responding it is 1.12 acres. Commissioner Colon stated they are trying to squeeze in 15 units; and she is talking about decreasing the units.

Chair Higgs stated Commissioner Scarborough has been concerned about how the Board has been handling the impact fee issue and rezonings for some time; she thought the Board was going to go with the over-55 issue so there would be no school impact; and until the Board completes the discussion on impact fees on Tuesday, she will not support the use of a payment in approving zoning. Commissioner Scarborough stated the Board begins to get into a very muddled situation to the point where it is getting different amounts of impact fees for different projects; there has been discussion about actual schools; and that is beyond where the Board needs to be. He suggested not taking any action on any of the school issues until Tuesday’s meeting when the Board makes a determination; and stated the Board will have better direction after it finishes that discussion. Chair Higgs stated she thought the Board was not going to face the school issue on this item; the Board is within days of the impact fee discussion and a determination where it is going to go; and if the Board wants to have that discussion tonight, it can, but she is concerned. Commissioner Carlson stated she would agree; and expressed concern about assigning the ability to abate impact fees for the 55-plus community because of the discussion they had with the consultant regarding impact fees and how the equations work out to equitably go across the population. She stated if the Board puts a scenario in a zoning recommendation that says development is exempt if it is 55-plus, it is shooting itself in the foot; and she would be willing to postpone the item until the Board makes a decision on Tuesday and sets a policy in place on impact fees.

Commissioner Colon stated this is only the beginning of the zoning meeting; and inquired how many others will fall in line with the same discussion the Board is having regarding school capacity because she does not want to waste people’s time. Mr. Enos stated he will need a few minutes to identify those.

Commissioner Carlson stated the Planning and Zoning Board is denying these cases instead of abiding by what looked like a policy to the Board, so there is a real conflict in how they are dealing with these issues; and if it is postponed, it might be equitable.

Ms. Lawandales stated they will be glad to follow the Board’s advisement in this manner; if it wants to impose the 55-and-older until such time as there is school capacity or until the Board adopts an impact fee, they will go that route; and if it is the pleasure of the Board to table this, they will certainly abide by that decision.

Commissioner Pritchard stated the Board already had numerous discussions; some have paid $2,800, some $4,500, and others were denied; the Board has been all over the place on it; and it did not make any sense to him why it would approve some and then start denying them. He stated the Planning and Zoning Board should take a more proactive stance regardless of what is going to happen on Tuesday; and should the Board decide not to have an impact fee, then it has lost nothing, but if it decides to have an impact fee, then it already has the agreement, so he does not understand why the Board is not in a position to make a decision tonight. He stated there are several items that are hinged on this issue; they will all be coming back; they will not be heard tonight; and inquired if the applicants accept the potential of a school impact fee, whether it is $2,800 or $4,500 or whatever is decided, why would the Board want to postpone this until after another discussion.

Commissioner Scarborough responded for the reason Commissioner Pritchard gave; when they started out, this looked clear and he was a little apprehensive; but at the last zoning meeting, they were getting so many diverse items, from not accepting any impact fee to, in one case, a lower impact fee; so it moved from approving everything, to denying everything, to sending everything forward; and the reason this was not part of it is because of the 55-and older issue. He stated the Board is just days away from clarifying the whole issue; with the clarification of the issue, it is going to be easy for the Board to say whether an item is in or out; and the whole issue will dissipate. He stated it is going to be a long difficult evening because no one knows what is going to happen; the Board cannot get into it because it is a public hearing and it has to have public opinion; and it would be a service to everybody to just let them know where the Board is as opposed to moving against the unknown.

Chair Higgs stated she had discussions with people who said there is not a connect between impact fees and school over-capacity; impact fees take care of future needs generated by development; the position of the schools, in terms of not having adequate capacity today, is a result of past growth; and it is necessary to find a way to make up for that and take care of the Comprehensive Plan. Commissioner Scarborough stated that sounds like a discussion for Tuesday. Chair Higgs stated it is going to be hard to clear that up; it is not a simple issue; and if the schools are over capacity, it will not be solved by an impact fee, so the Board needs to think in the big picture what it is going to do about school over-capacity.

Commissioner Colon stated one of the reasons the Board was doing it was because it wanted to act responsibly to the growth that is happening in the community because of the impact the developers are putting on the community; that is why the Board wanted an impact fee; and inquired if the discussion of school capacity is going to continue after Tuesday, why even do an impact fee. She stated she was under the impression that it put the Board in a position where it was acting responsibly for what it was voting for; and inquired if that is the direction the Board is heading or if the Board makes a decision regarding the school impact fee, will it still be discussing school capacity.

Commissioner Scarborough stated in fairness to the people who plan to come on Tuesday to speak to the subject, the Board should listen to the full dialogue and discuss it where the public can hear it and be part of it. He stated all of the Commissioners have their concerns because it is a complex issue; there is a difference in the way the Board is handling the impact fee and concurrency as it does with roads; there are different ways to look at it; and he would like to defer until after Tuesday.

ITEMS TABLED DUE TO SCHOOL CAPACITY ISSUE

Chair Higgs inquired if staff knows how many items relate to school capacity; with Mr. Enos responding it looks like there are 12 including several that have already been tabled.

Chair Higgs inquired if there is a motion in regard to Item IV.A.3. Commissioner Pritchard stated the desire is not to discuss any of the items that have to do with school impact fees tonight, the Board can make a motion that covers every item so the people can get on their way, and the Board can come back when it has made a decision on school impact fees. He requested Mr. Enos identify the items so he can make a motion that covers all of them. Mr. Enos advised the items are IV.A.3; IV.B.7, which has already been tabled; IV.B13, which has already been tabled; IV.B.14; IV.B.15; IV.B.18; IV.B.19; IV.B.20, which has already been tabled; IV.B.22, which has already been tabled; IV.B.28; IV.B.29, which has already been tabled; IV.D.2, which has already been tabled; IV.D.3; and IV.D.6. Commissioner Pritchard stated it makes no sense to him to have people sit here so that the Board can come to the same point in each discussion as it has in this discussion, which is that the Board is not going to make a decision until it has Tuesday’s meeting regarding impact fees. He stated he knows the Board said it would be happy to listen to what the public had to say about Item IV.B.15; but if it does that, then the rest will also want to be heard, only to come to the same conclusion; and implored the representative of IV.B.15 to realize he is going to make a motion to table that item along with all the others for the same reason, that it is not going anywhere, and so no one is wasting his or her time.

Item IV.B.14. (Z0407204) Sixty Banana River, Inc.’s request for change from BU-2 to RU-2-15 on 1.6± acres located on the east side of South Banana River Drive, south of SR 520, which was recommended for approval by the P&Z Board with Binding Development Plan limiting development to over-55 community until a school impact fee is adopted.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to table Item IV.B.14 to the September 2, 2004 Board of County Commissioners meeting. Motion carried and ordered; Commissioner Colon voted nay.

Item IV.B.15. (Z0407205) Lavina H. and Alfred B. Humphrys, as Trustee’s request for change from EU and RU-1-9 to RU-2-8 on 27.4± acres located on the west side of North Tropical Trail, south of Crockett Boulevard, which was recommended by the P&Z Board for denial.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to table Item IV.B.15 to the September 2, 2004 Board of County Commissioners meeting. Motion carried and ordered; Commissioner Colon voted nay; Commissioner Scarborough abstained due to conflict of interest.

Item IV.B.18. (Z0407302) C. Steven Douglas and Debra K. Douglas, Co-Trustees’ request for change from AU to RR-1 on 17.35± acres located on the south side of Micco Road, west of Fleming Grant Road, which was recommended by the P&Z Board for approval.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to table Item IV.B.18 to the September 2, 2004 Board of County Commissioners meeting. Motion carried and ordered; Commissioner Colon voted nay.

Item IV.B.19. (Z0407303) Steven E. and Marilyn J. Nagel’s request for change from AU to RR-1 on 3.93 acres located on the northeast corner of Valkaria Road and Toby Avenue, which was recommended for approval by the P&Z Board with a Binding Development Plan to include a $4,400 school contribution per unit.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to table Item IV.B.19 to the September 2, 2004 Board of County Commissioners meeting. Motion carried and ordered; Commissioner Colon voted nay.

Item IV.B.28. (Z040551) Tanner and Kanazeh Development, Inc.’s request for change from AU to RU-1-13 on 4.31 acres located on the north side of Trimble Road, west of Wickham Road, which was recommended by the P&Z Board for denial and direct staff to stop taking residential applications in areas where schools are over capacity.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to table Item IV.B.28 to the September 2, 2004 Board of County Commissioners meeting. Motion carried and ordered; Commissioner Colon voted nay.

Item IV.D.3. (NMI40703) Thanh D. Ngo and Lien K. Pham’s request for change from AU and RU-2-10(4) to SR with Binding Development Plan limiting development to four homesites, with each lot being a minimum of one acre on 4.951 acres located on the southwest corner of Jones Trail and North Tropical Trail, which was recommended for denial by the North Merritt Island Dependent Special District Board.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to table Item IV.D.3 to the September 2, 2004 Board of County Commissioners meeting. Motion carried and ordered; Commissioner Colon voted nay.

Item IV.D.6. John R. Bunkley, Trustee’s request for change from GU and RU-1-13 to all RU-1-13 on 5.35 acres located on the west side of North Tropical Trail, north and opposite of the western terminus of Grant Road, which was recommended for denial by the North Merritt Island Special District Board.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to table Item IV.D.6 to the September 2, 2004 Board of County Commissioners meeting. Motion carried and ordered; Commissioner Colon voted nay.

Commissioner Scarborough stated the Board has tabled a tremendous number of items; there may be other issues for denial other than schools as part of these issues; and it is going to tremendously impact another zoning meeting. He requested staff see if another date can be found to hear the items. Assistant County Manager Peggy Busacca inquired what Commissioner Scarborough means by another date; with Commissioner Scarborough responding an additional evening meeting to consider these items.

Chair Higgs stated all those items have been tabled; Tuesday the Board will have a discussion about impact fees; and the Board is sorry those who came tonight were unable to complete their items, but this is an important discussion for the community.

Commissioner Colon stated there needs to be another date because hearing them all in one day would not be fair. Chair Higgs stated she does not have her calendar; and she would be reluctant to agree to another date at this time. She stated if the items are continued to September 2, 2004, at that time the Board could have a backup date. Attorney Bentley advised that is acceptable as long as there is a date certain. Commissioner Colon inquired what will happen to the business of September 2; with Chair Higgs responding it is all together right now; but the Board will work on it. Chair Higgs stated no one has their calendar tonight; that causes problems; and the Board will ensure that notices are made if an additional date is determined.

The meeting recessed at 6:36 p.m. and reconvened at 6:42 p.m.

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATIONS OF
JULY 12, 2004

Chair Higgs called for the public hearing to consider the recommendations of the Planning and Zoning Board made at its July 12, 2004 meeting, as follows:

Item IV.B.1. (Z0407501) Brevard County Board of County Commissioners on its own motion authorized administrative rezoning on property owned by Michael C. and Mireille E. Smith to change from AU to IU on 9.93 acres located on the west side of John Rodes Boulevard, south of Fortune Place, which was recommended by the P&Z Board for denial and direct staff to initiate Comprehensive Plan amendment to residential designation.

Commissioner Colon stated the recommendation was for denial; and inquired what has happened since the P&Z meeting. Zoning Official Rick Enos stated this is an administrative rezoning that was initiated by staff due to a development order; the Comprehensive Plan directs staff to initiate rezoning whenever it is found through a development order that the current zoning is inconsistent with the Comprehensive Plan; and in this case the zoning is agriculture, AU and the Comprehensive Plan is industrial. He stated staff was required by Code to bring to the Board a change from AU to IU so the zoning would be consistent with the industrial land use designation; however, the owner wants to keep the AU zoning. He stated in order for that to occur, the P&Z Board denied the application for AU but directed staff to initiate a Comprehensive Plan amendment to residential. He stated if the Board approves the recommendation, staff will initiate the Comprehensive Plan amendment and the AU zoning will stay on the property.

Motion by Commissioner Colon, seconded by Commissioner Pritchard, to deny Item IV.B.1 and direct staff to initiate Comprehensive Plan amendment to residential designation, as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.B.2. (Z0407502) Gary E. Lane’s request for change from GU to AU on 3.65 acres located on the north side of Willowbrook Street, west of Babcock Street, which was recommended by the P&Z Board for approval.

Motion by Commissioner Colon, seconded by Commissioner Scarborough, to approve Item IV.B.2 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.B.3. (Z0407101) Jerry D. Ball and Marla B. Hawes’ request for change from GU to AU on 2.38 acres located on the west side of Pine Street, north of Cabbage Palm Street, which was recommended by the P&Z Board for approval.

Chair Higgs advised the only card submitted is from the applicant.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to approve Item IV.B.3 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.B.4. (Z0407102) Randy P. and Mary E. Swenor’s request for change from GU to RRMH-1 on one acre located on the west side of Satellite Boulevard, south of Suntee Avenue, which was recommended by the P&Z Board for approval.

Chair Higgs advised the only card submitted is from the applicant.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to approve Item IV.B.4 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.B.6. (Z0407104) James L. and Sylvia L. Lewis’ request for change from GU to AU on 2.38 acres located on the west side of Florida Palm Avenue, south of Date Palm Street, which was recommended by the P&Z Board for approval.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to approve Item IV.B.6 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.B.8. (Z0407106) Gerald A. and Donna L. Ingleton’s request for change from GU to AU on 2.23 acres located on the west side of Fishtail Palm Avenue, south of Date Palm Street, which was recommended by the P&Z Board for approval.

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

Item IV.B.9. (Z0407107) Esther Tietelbaum, Trustee’s request for change from AU and BU-1 to EU-2 with Binding Development Plan on 10.69 acres located on the east side of US 1, south of Canaveral Groves Boulevard, which was recommended by the P&Z Board for approval with a Binding Development Plan stipulating no driveway to US 1.

Clay Henderson, Holland & Knight, representing Esther Tietelbaum, stated the family has owned this property for many years; he was before the Board in March 2004 when it received recommendations for approval from the P&Z Board and from staff; but the applicant, who was a contract purchaser, withdrew at the last minute; and the Board allowed him a waiver to come back in six months. He stated they support the staff position and the recommendation of the P&Z Board, which came forward with an additional request to add to the binding development plan that there would only be access on Indian River Drive and not to US 1, and they have agreed to that. He stated the property is approximately 11 acres; it runs from the river to US 1; it is currently zoned commercial on US 1 and the rest is agricultural; and it is vacant land. He stated it was a grove for many years, but is no longer operating as a grove; the proposal is for the binding development plan to limit the number of lots to 16; it is four units per acre density; and 16 units is a significant reduction from what is called for in the Comprehensive Plan. He stated he would be happy to answer any questions and address any issues anyone may have.

Patricia Jordan stated she received notification of this meeting; she has been to several meetings about this item; and she approves of what is going to be done. She stated she has a question about the access to the property because the lot is 100 feet across, and 32 cars would be going in and out on Indian River Drive every day, if each family has two cars. She stated she approves of everything else, but she is worried about the access.

Beverly Sudermann, President of the Indian River Neighborhood Association, requested the Board reject the proposed rezoning from AU and BU-1 to EU-2; stated the proposed development is within the area affected by the 2004A.5 Comprehensive Land Use amendment, which was approved by the Board on July 27 for transmittal; and the development is not compliant with the land use density specified within the amendment. She requested the Board consider the pending amendment; stated their association is allied with other associations in the neighborhood such as High Point, Sabal Chase, Brookhill, Briarwood, and Twin Lakes; and read aloud a letter from the president of the Briarwood Homeowners Association requesting the Board deny the proposed rezoning due to the amendment submitted to the Department of Community Affairs and further requesting the parcel be rezoned to no more than one unit per acre in accordance with the Future Land Use Map recently submitted for approval to the Department of Community Affairs.

Larry Gold, President of the High Point Homeowners Association, stated High Point is located just north of SR 528 between US 1 and the river; and he is representing the 93 families in High Point, to convey their desire to maintain right-sizing along the Indian River Lagoon. He stated their neighborhood is under increasing pressure from developers seeking to increase density; and they are turning to the Board for help. He stated they wish to maintain the existing character of the area by following amendment 2004A of the Comprehensive Plan. He stated Indian River Drive, which winds along the Indian River, is scenic and historical; to overburden, alter, or harm this treasure would be a tragic loss to the citizens of Brevard County; the residents of High Point stand united on these zoning issues and request the Board’s support; and requested the Board reject the proposed rezoning.

Norman Lowry, President of Brookhill Homeowners Association, stated he represents over 30 homeowners; and they are located a third-mile south of the proposed development. He stated the parcel in question is affected by Comprehensive Plan Section 8.5, which was approved by the Board on July 27, 2004; and recommended any action not exceed what went to Tallahassee, which is one unit per acre. He stated they stand with their fellow homeowners associations and recommend that the Board disapprove the proposal as it is written now.

Mr. Henderson stated he agrees with the residents that they have an asset in the road; and as that area develops, they need to do whatever they can to try to protect the character of that area. He stated under the binding development plan and the rules of the County, there would be a 50-foot buffer along the Indian River Lagoon; and all the area between the road and the river would continue to be protected. He stated the first speaker addressed the issue of access road; they have 150 feet along the river; and the plan is to put a large lot there on the river, that would be consistent with the other lots in the neighborhood, and have a driveway access to the properties in the back. He stated the P&Z Board felt, as did they, that access to Indian River Road would be preferable to US 1, so that is why that came about. He stated on the issue of the Comprehensive Plan, they are here under the currently adopted plan, which calls for four units per acre in that area; and their proposal is for substantially less than that. He stated most of the new development in that area has been consistent with the four units per acre; that is what is going on in the new subdivisions there; and what is called for is substantially
less than that, 16 units on 11 acres. Mr. Henderson stated they received notice of consideration of the Comprehensive Plan amendment; they called County staff and were advised that the rezoning would still be considered under the current plan at four units per acre; and when they
asked if this would trip any thresholds, they were told that the Plan amendment affected smaller areas, so they did not get involved in that. He stated the amendment has been transmitted, but has not been adopted; there still have to be comments, and it has to come back before the Board for an adoption hearing. He stated they are willing to work with the Board any way they can, but he is not authorized to drop the density to one unit per acre; that is not consistent with the neighborhood; what is consistent with the neighborhood is four units to the acre; and what they are proposing is substantially less density than that.

Chair Higgs inquired if the applicant would consider zoning such as SR, which would be half-acre. Mr. Henderson responded that is probably where they will end up, but there are wetlands and drainage issues on the site; what they intend to do is develop on the upland areas and use the wetlands as a common preserve; and approximately one-third of the site will be that way. He stated he cannot do the math in his head to figure out if the larger lots would work in that system; but that is what they are trying to do. Chair Higgs stated basically they are looking at an Open Space Ordinance where they will move the lots around; with Mr. Henderson advising that is correct.

Commissioner Scarborough inquired if there is anything the Board needs to add. Planner Todd Corwin stated for properties zoned agricultural/residential, the Comprehensive Plan amendment reduced the density on the Future Land Use Map from four units per acre to one unit per acre. Commissioner Scarborough stated Mr. Henderson is correct that this has not been adopted, only transmitted; but there are some dynamics because staff prepared and the P&Z Board considered the item two weeks and one day before the Board took action. He stated he is concerned that if the Board begins to transmit one thing and then begins to consider rezonings before it actually adopts an amendment, it may be doing something totally inconsistent. He stated in conversations with people in the neighborhood, there was a belief that there was some finality in what occurred last Tuesday; so he is unable to move forward on this item, although other Commissioners may feel differently. He stated it seems inconsistent; the Board is not compelled to grant a zoning and the applicant is not entitled to a rezoning, which is why there is this meeting; there was extensive discussion last Tuesday with a great deal of community input and a clear indication that was where the Board wanted to go; and it would be best to table this, with the thought that the applicant may be able to structure it and make it work in line with the direction the Board is headed.

Mr. Henderson advised he does not mind doing that; but his problem is that he did not see the transmittal because staff said it was not going to affect them. Commissioner Scarborough stated if it is tabled, they can meet with the neighbors who would like to know more about the plans. Mr. Henderson stated he will be glad to visit with Commissioner Scarborough. Chair Higgs inquired if it can be tabled to the October meeting; with Mr. Henderson agreeing to that timeframe.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to table Item IV.B.9 to the October 7, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item IV.B.10. (Z0407108) Lawrence S. and Linda M. Ross’ request for change from GU to RR-1 on 2.46 acres located on the southeast corner of Cangro Street and Osprey Avenue, which was recommended for approval by the P&Z Board.

Larry Ross stated he and his wife Linda would like to change the current zoning from GU to
RR-1 so they can split the property; it is currently 2.46 acres; and they would like to make it 1.23-acre parcels to raise money to build a home. He stated there is not much property in Canaveral Groves that is buildable or that does not have an environmental issue; he met with Mr. Enos in May who looked over the site plan; and everything met the requirements to do the rezoning.

Steve Noe stated he submitted packages to the Board, which contained non-concurrence letters; and he is representing 19 property owners who live on Cangro Street and Osprey Street who all signed non-concurrence letters. He stated he has nothing personal against Mr. Ross, but is concerned about the splitting of the lots; he disagrees with the lot being called 2.46 acres because 1.2 acres are easements; and described the various easements. He stated the County maintains the roads; his understanding is once the County takes over maintenance of a road, it also takes over ownership; and the rest of the easement is a canal in the back, which has a gate put up by the County and no access allowed, so the property owner has no use of that land. He stated the buildable part of the lot is 1.26 acres; the lot is 200 feet by 275 feet; and that is what will be looked at when it is surveyed, appraised, and money is loaned on the lot. He displayed a map showing the lot in yellow, the canal in orange, and the two roads in pink; advised they are County-maintained roads; and they have no objections to Mr. Ross building on the property, but do not want to see two houses on .6 acre each. He stated the culture of Canaveral Groves is one acre or more lots; he spent three days going through the records and could not find a single buildable lot that was less than one acre; and he is concerned that this will set a precedent for all of Canaveral Groves west of Grissom Parkway. He stated there are multiple lots owned by one person in Section 5; and that person would probably be happy once this was done and the precedent set, to start splitting the lots. He stated the dirt roads can barely handle the traffic on them now; the schools in the area are stressed; and they are having to build schools in Port St. John to handle the additional people coming in. He stated the main concern is to have two .6-acre lots; and every homeowner on Cangro and Osprey Streets signed a letter of non-concurrence on this action.

Lisa Slifko stated her property is cattycorner from the property that Mr. and Mrs. Ross want to split; and no one has come to her door asking whether or not she approves or disapproves of them building. She stated she would love for the Rosses to build; they built their original house on Cangro Street 13 years ago; but they have three children, and sold their home on Cangro Street because they needed more space. She stated she and her husband have lived in their home for three years; when they moved in, the gentleman’s home on Osprey was not there; and she is happy as long as the lots are kept at one acre. She stated from what she understands, when the Rosses rezone the lots, they will go from one 2.46-acre lot to two 1.23-acre lots; as a resident of Canaveral Groves, she is also concerned about preserving the beauty and the dirt roads; and she knows Mr. and Mrs. Ross, who lived in Canaveral Groves for 13 years when nobody was there.

Cory Slifko stated he is not sure about the petition; he would never ask the Board to cut the lots less than one acre; but he knows Mr. Ross well; he is very thorough; and he would be eager to see how this would dice up less than one acre. He stated a lot of people in Canaveral Groves enjoy their fat easements; he is asking the Board to do what is within the law; and he would not want the lot cut to less than an acre. He requested the Board do what is fair.

Larry Ross stated the diagram he distributed shows that the surrounding properties are around an acre; the earlier speaker said the lot would be .6 acre once it is split; but actually with the easements it is 1.76 total, making it .84 acre. He noted when he met with Mr. Enos he was aware of all the easements, but said that it would still fall in the guidelines for rezoning. He stated behind the ditch that was mentioned is his property, even though they cannot get to it, it is still considered his property; and they pay taxes on it.

Commissioner Scarborough stated unless staff has a lot more information, he is unable to understand whether it is or is not an acre with the easements in the calculation; and he would like to table the item this evening so he can look at it in more detail and have Mr. Ross and his neighbors look at it together with staff. He stated Mr. Ross has given him a map; Mr. Noe has given him another map; and he does not know where the easements are. He stated it would be wisest to table the item rather than trying to get into a detailed analysis of where the easements lie; and inquired if that is acceptable to the applicant; with Mr. Ross responding affirmatively.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to table Item IV.B.10 to the October 7, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item IV.B.11. (Z0407201) Sherry J. Ashby, Trustee’s request for Small Scale Plan Amendment to change the Future Land Use Map designation from Neighborhood Commercial to Community Commercial; and zoning from RU-2-15 and BU-2 to all BU-2 on 0.26 acre located on the north side of Lake Drive, north of Peachtree Street, and fronting on the south side of Fern Street, which was recommended for approval by the LPA and for approval of BU-2 with Binding Development Plan stipulating no access to Fern Street by the P&Z Board.

Sherry Ashby stated the property in question is at 1238 Lake Drive; they are trying to get this joined to the adjoining BU-2 lots because they run a repossession company, which they have
done for the past two years; however, when they bought the property, they did not know that the person they bought it from who ran the repossession company was also using the adjoining property as an address. Ms. Ashby advised when they went to get the occupational license to bring it into compliance, they found out that the BU-2 property was short of having enough square footage to run the business; so they have come to get a rezoning to add in the adjoining lots that also face onto Fern Street; and they have agreed to have no access to Fern Street so it will not impact the neighborhood. She stated there would never be any access there; in the time they have been there and the time when the previous owner was there, there was no activity on that property that they know of; but there are neighbors who have used the property and probably impacted the neighborhood. She stated if they are granted the zoning and come into compliance, they will fence it so as to have no access to Fern Street; and there would be no other impact to the property other than what has happened for the past eight years. She stated all of their business is done mainly at night; there are vehicles that are returned during the day; but the majority of business is at night; and it is the nature of the business to be very quiet and not impact or bring focus to themselves. She requested the property be rezoned to BU-2 so she can come into compliance, get an occupational license, and bring it up to standards; and stated they need the extra square footage to do that.

Commissioner Colon inquired if the business is done mostly in the evening; with Ms. Ashby responding most of the business is done in the evening; it is a tow/repossession company; and there is very light activity. Ms. Ashby stated they probably bring in ten cars a week and some are during the day and some are at night. Commissioner Colon inquired what time do they stop in the evening; with Ms. Ashby responding she does not know that there is a starting and stopping time, and it depends on the vehicles. Commissioner Colon inquired if the business is run 24/7; with Ms. Ashby responding it can be 24/7, but it is a very low impact business with not a lot of activity.

Rhonda Spencer stated she lives down the street from the property; and she and some of her neighbors believe this is going to be a strong impact on the streets. She stated her understanding of a repo business is that it is mostly done when people are asleep; they are looking at vehicles coming in a 2:00 or 3:00 a.m.; and even with the fences up, the two trucks are diesel and they will hear them when they come in. She stated the neighborhood dogs are going to hear them, and when one dog barks, they all start barking. She stated Fern Street would be blocked with vehicles sitting there; this is not something the neighborhood needs; it is a small street; and it is very quiet at night, so they do not want to see traffic in and out all night long. She advised of another neighborhood problem with vehicles piled up on property; stated that is being addressed and hopefully taken care of; and this is not something they want in their neighborhood.

William Thiel stated he lives on Fern Street, across from the subject property; Ms. Ashby wants to run a repo business out of her property, which she has been running for a couple of years on the part toward Lake Drive; and it has already been a hassle. He stated now Ms. Ashby wants to bring the business right up to Fern Street, which is basically at his front door; and he is totally against this because it is not good for the neighborhood and is a not a good business for a residential area.

Rita Clark stated there are only 15 families on Fern Street, which is a small street with no sidewalks or shoulders; the road is old; and there are children and senior citizens living on the street. She stated they are afraid this is going to be granted and they will use the Fern Street entrance as much as the Lake Drive entrance; and the street cannot take the traffic. She stated traffic is already too high; it is 50 miles per hour; it is a short street; and it is dangerous. She stated when tow trucks back up, they make a beeping sound; her dogs will hate it; they will talk to all the other neighborhood dogs; and she does not want it in her neighborhood.

Sharon Martin stated she lives on Fern Street; and she spoke before the P&Z Board on July 12; but at that time she did not understand exactly what Ms. Ashby was zoning the property for. She stated after discussing it with all of her neighbors, she is in agreement with the neighbors; it would not be a good idea to have a repo business in a residential neighborhood; and it has been a residential neighborhood for many years. She stated there are seniors and children in the area; and there is already a problem at the end of Fern Street with a property that looks like a car lot or junkyard. She stated with the business right next door to many people’s homes, they are going wake up people at three or four o’clock in the morning; there is no way that people will not hear them loading and unloading trucks; she owns several pieces of property on Fern Street as well as on Martin Street; and she does not think the business needs to go there. She stated it would not be in the best interest or the safety and security of the neighborhood; and other people on Fern Street have sent in letters to the Planning and Zoning Board.

Allan Ashby stated he manages a repossession company; they are trying to change the back section of the property to BU-2 to comply with zoning laws; on the west side, it is already zoned BU-2 on the back; he has never gone down the Fern Street location; and they are not asking for access to the Fern Street address. He stated as far as using a diesel truck, he does repossessions very quietly; and he has picked up cars outside of open bedroom windows and the people did not know he was there. He advised he uses a gas engine, not diesel; and he uses a top of the line recovery truck. He stated they are not trying to cause any problems in the neighborhood; and they are just trying to comply with zoning. He stated they do about ten cars a week, if that; half are during the day and half at night; and they do it very quietly, bringing in the vehicles, backing them in, and turning off their lights. He reiterated they are very quiet and do not want to have any commotion or attention brought on them; and they are a low-key business. He stated he knows that cars have been transported on the back side of Fern Street, but it had nothing to do with him; the neighbor to the east of the back lot was operating an auto repair shop with a lift; and he has seen the neighbor bring several cars in and unload them; he told the individual he could not do that because he was coming through his property; and as far as he knows, that solved the problem. He stated they just want an opportunity to use some of the property because right now there is no use for it; and their intention is to purchase it for the recovery business.

Commissioner Pritchard inquired if the business has been in operation for several years; with Mr. Enos responding that is his understanding. Commissioner Pritchard inquired if it only recently came into a compliance problem because of the attempt to get an occupational license;
with Mr. Enos responding that is correct. Commissioner Pritchard stated he can understand the need to be quiet in the repo business; and he can see where the neighborhood is concerned about having vehicles coming in and out at all hours of the day and night. He inquired what is on the west side where there is BU-2 zoning; with Mr. Enos responding it appears to be a residence. Commissioner Pritchard stated it is BU-2 but it is residential; and inquired if Ms. Ashby has been using all of the property; with Ms. Ashby responding they have been using the Lake Drive entrance only. Commissioner Pritchard inquired if they have been using all the property; with Ms. Ashby responding they have been using the front part and a portion of the back. Commissioner Pritchard inquired if they wish to expand fully into the back part; with Ms. Ashby responding in order to get an occupational license for a BU-2 property, they have to have 1,500 square feet, and they are short on that. She stated they have always used the Lake Drive entrance; that is all they intend to use; and there will be no impact on Fern Street because they do not use it. She stated they will also have to come into compliance with Zoning, which is going to ask for buffers, fences, walls, and everything else; so she does not see where it is going to be that much of an impact to any of the neighbors or any more of an impact to them than it is has been for the past ten years. Commissioner Pritchard stated the P&Z Board approved it unanimously with a binding development plan; and inquired what were their conversations for this vote. Mr. Enos advised at the P&Z Board meeting, the main concern raised was traffic associated with the business coming in and out on the Fern Street side of the property; and as part of its recommendation, the P&Z Board suggested approving this as long as there was no access onto Fern Street. Commissioner Pritchard stated apparently there has not been that access; with Mr. Enos responding that is correct.

Chair Higgs stated the Board is talking about the people and their business, but that should not be the discussion; it should be a discussion about the property and what should be at this location and whether BU-2 should be abutting the neighborhood at this location on Fern Street. She stated while they are talking about a specific business, they are dealing with a change to a property; and that is the real issue. She stated she is not convinced that BU-2 back there is what ought to happen; the encroachment of a business into a neighborhood is not a part of what is outlined in the Comprehensive Plan; and the encroachment of something of the intensity of BU-2 concerns her. She stated if it was BU-1-A, it would be very different because that is available in a neighborhood; but BU-2 is extremely intense; and inquired if there are locational criteria. Mr. Enos stated in this case BU-2 is in the neighborhood already; and the criteria state the BU-2 should not be extended further into a neighborhood. Chair Higgs stated it is located on the front part but not at the back part; and so the extension of the BU-2 into the neighborhood would be inconsistent; but it does exist in the neighborhood.

Commissioner Pritchard stated it also exists to the west where there are four parcels to the west that are BU-2.

Commissioner Colon stated she agrees with Chair Higgs and will not be voting in favor.

Commissioner Scarborough stated there is BU-2 to the west; and if they go to another BU-2, and another BU-2, ultimately it will be a total BU-2 county, so there has to be a moment when one asks whether the BU-2 is extending; and that moment is when the community comes up and says it does not think it should be. He stated he knows it is subjective; but otherwise, the whole County would be BU-2 because it would all be based on everything else; so the logic does not hold. He stated he is going to support Chair Higgs.

Ms. Ashby inquired if she drops the residential lot next to the residential property, keeping it residential, and just adds in the other lot to the west, which abuts BU-2, would that be a consideration. She stated it would give her enough square footage to operate the business; and it would not impact the neighborhood in any way. Chair Higgs stated it looks like a split land use
with residential in the back and commercial on the front. Ms. Ashby stated the Future Land Use designation is residential/commercial; with Chair Higgs responding no, unless there is something she is not seeing on the maps. Planner Todd Corwin stated it is a split land use; on the southern portion it is community commercial, which allows community commercial uses; and the northern portion is neighborhood commercial, which is a less intense commercial use, more compatible with residential uses. Ms. Ashby inquired if a small office-type business would be able to be placed back there; with Mr. Corwin responding yes, within the neighborhood commercial; and lighter zoning such as BU-1-A or RP could be applied for in that land use designation. Ms. Ashby inquired if she goes forward with this, would there be more impact if she put a commercial property there; with Mr. Corwin responding even though it has a neighborhood commercial land use designation, it still has residential zoning currently; so in order to use it for commercial purposes, it would required a rezoning.

Commissioner Pritchard inquired what was the alternative that Mr. Enos just showed him. Mr. Enos stated one of the problems they have is the property is quite deep; only the front 74 feet, which are actually platted lots, is zoned BU-2 now; for nonconforming lots of record, they have to be at least 75 feet deep; so it would be impossible to get an occupational license without some rezoning. He noted it does not have to be the entire depth; the lot in the back is about 150 feet in depth; that is zoned RU-2-15; and it would need to have at least 75 feet in depth on the north side on Fern Street in the current zoning of RU-2-15 to maintain that as a legal residential lot. He stated if the Board wanted to consider rezoning up to 75 feet on Lots 16 and 17, up to the south 75 feet, that would be a compromise position that would allow the applicant to expand somewhat to the north, but still only be fronting Lake Drive, leaving the remainder on Fern Street as a legal RU-2-15 lot; and that option is available. Commissioner Pritchard inquired if all the properties on Lake Drive are BU-2; with Mr. Enos responding affirmatively. Commissioner Pritchard stated it would be a compromise position that would give them the footage they would need for BU-2 but it would still have a transitional residential behind it so it would not adversely impact the neighborhood. Mr. Enos advised it would not have the residential frontage change on Fern Street.

Commissioner Carlson inquired if they are only talking about one foot; with Mr. Enos responding no. Mr. Enos clarified the minimum is 75 by 100 feet in width; they have 100 feet in width; but they only have 74 feet in depth and would need at least 75 feet to meet the nonconforming lot of record standard. He advised according to the survey, which is the plat, it is 74 feet; but the measurement appears to only be 69 feet, so to be safe, they need at least six feet to make the lot legal; there is a fence line that appears to be approximately 50 feet further back than the current BU-2 zoning; and he can show the Board the survey, if it would like.

Chair Higgs stated if the Board wants to table this to negotiate a foot or two, she would be willing to listen and consider it if it protects the neighborhood; but she is not going to measure feet tonight. She stated if they can come back with something that is reasonable and protects both parties, they have two options.

Commissioner Pritchard stated he would opt for doing the foot or six feet tonight; but he can see that the Board would rather table the item, although there is a lot on the table when they come back. Chair Higgs agreed; but stated she would hate to negotiate six or seven feet tonight if it is really one foot or something else.

Commissioner Colon stated if there is a piece of property that is illegal, it is not the Board’s job to make it legal; it looks like this is a piece of property that has been running a business illegally; and she wants to be careful about turning that around. She stated she is willing to allow Commissioner Pritchard’s office an opportunity to see if there is something that can be worked out; but it does not guarantee anything.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to table Item IV.B.11 to the October 7, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Commissioner Pritchard stated he will work with both sides to see what can be done. Commissioner Scarborough stated this is a very unusual meeting; there are more recommendations for denial than he has ever seen; and they are tabling more items than he has ever seen, but they will be better off because of it even though it is unusual.

Item IV.B.12. (Z0407202) Carla B. Dieterich’s request for change from RU-1-11 to RU-1-7 on 0.24 acre located on the north side of Angel Avenue, west of Newfound Harbor Drive, which was recommended by the P&Z Board for denial.

Attorney John Evans, representing Anthony LaCourt, submitted paperwork to the Board; and stated Mr. LaCourt is a contract purchaser of a piece of land on Merritt island. He stated in the package is a map showing the location of the property; and it is Lot 11, which was split a long time ago. He stated as Commissioner Colon said, it is not the Board’s job to fix illegal lots of record; but the history of Lot 11 is that it has been split since approximately 1960 and has been in that configuration, so this is a long-term problem. He stated there will be further testimony that several times people have come for building permits and been told they could have them; but when Mr. LaCourt came to get a building permit before purchasing the property, the answer was no. He stated he has a deed from 1987 showing that is was split at that time.

Chair Higgs inquired if that is the oldest deed Mr. Evans has; with Mr. Evans responding it is the oldest one he has with him. Chair Higgs inquired if he has another deed; with Mr. Evans responding it is his understanding it was split in 1960, but he does not have that deed. Mr. Evans stated he did not realize it was an issue until the last day or so; and he was not able to get a title search on it that quick, but would be willing to do so. He stated the issue is that this particular lot is zoned RU-1-11; that requires 7,500 square feet, which is not a problem because the lot has approximately 11,600 square feet; and the reason it needs to be rezoned to RU-1-7 is because the RU-1-11 requires 75 feet in lot width and this particular lot is approximately 63
feet in width. He advised RU-1-7 allows a 50-foot lot so that would make the lot buildable. He stated there are three issues, and one is the nonconforming lots; and in the subdivision almost every single lot that he has marked in yellow on the map has 63-foot frontage, so basically almost every single lot in the subdivision is nonconforming including the subject lot. He stated at the P&Z meeting, there were two issues brought up by the neighbors; one is they were afraid his client might build a small house, so they have submitted a binding development plan that provides that the residences would be no smaller than 2,000 square feet; and they have attached a site plan indicating it would meet all required setbacks of the RU-1-11 classification and would access on Angel Avenue only, thus not creating a flag lot. He stated they are accessing off a public right-of-way; that is significant as to the second issue; so they have met the neighbors question about the cost of the house, which will be expensive. He stated he thinks the Board will agree that any house on the river at 2,000 square feet would be a very valuable addition to this neighborhood. He stated the other issue is whether this will create a bad precedent in the neighborhood, creating further flag lots; and presented aerial maps of the area. He stated the first map shows the subject lot with an existing residence; and pointed out Angel Avenue and the 30-foot right-of-way. He stated the next aerial shows to the north two houses in exactly the same configuration that his client is looking to do; his client wishes to have a house on the river and on the same lot have a house in the back; and that happens on the abutting property also. He stated four lots over, there is the same configuration where there is a house in front and two houses in the back; so the precedent to do that type of development has been established in the neighborhood. He stated his client’s lot is significantly different than the others; the difference the Board can rely upon is that they are going to access their property from a 30-foot right-of-way, so there is no need to create any sort of flag lot to make the riverfront buildable; and they have access, so if a 15-foot portion of the right-of-way was added to the 63 feet, there would be more than the 75 feet that is needed. He stated if his client had come to him, he might have suggested trying to vacate the right-of-way and give back an easement, but his client chose the zoning path first; and that is why they have to stick with the 63 feet. He stated they believe this particular setup, because of the right-of-way, will not create a precedent that will require rezoning other parcels in this area to RU-1-7; and there are only about four lots that would be affected in any event and they would have to be flag lots, which the Board would have total control over whether that was a good or bad idea. He stated he gave the Board a deed from 1986 with the current configuration; they believe the records go back to 1960; the nonconforming lot Ordinance was adopted in 1958, so it did not qualify for that particular Ordinance; but they believe this is a good addition to the neighborhood. He stated it will be a very nice home; the property is deserving of the RU-1-7 zoning; and his client will build a nice residence on the river.

Chair Higgs stated Mr. Evans talked about vacating the right-of-way, but only the Board can vacate a right-of-way. Mr. Evans stated that is right, they would have to come to the Board and ask permission. Chair Higgs advised the Board has a policy of not vacating right-of-way to the river; with Mr. Evans inquiring even if they give the County an access easement back. Chair Higgs responded the Board has held pretty tight on vacating public access to the river so she would not think that is a given. Mr. Evans stated nothing is a given in this thing.

William Trump stated he owns the property next door; and requested the Board uphold the P&Z Board’s recommendation to deny the rezoning. He stated they did not know anything about what the applicant was doing; when they came to the P&Z meeting, they asked about the 700 square-foot house rezoned from 1,100 square feet; it seemed like they were going to stick a little house in his backyard; but it turns out that is disingenuous because they plan to build a 2,000 square-foot house, but they are getting the rezoning down to a 700 square-foot house, which does not seem right. He stated it has always been one property under a single owner even though there is a dotted line on the plat book; one owner has owned it since back in the 1960’s when it was divided; but he always hoped that someone would knock down the 1960’s house and build a nice 2,000 square-foot house on the half-acre lot. He stated all the properties in that neighborhood are all half-acre along the river; Mr. Hahn’s property across the street is just slightly under a half-acre; but by allowing them to build this house behind another house on the river, it is going to negatively impact his property value because they are going to have to bring in so much fill dirt that they are going to wind up flooding his backyard. He stated Angel Avenue slopes down toward the river at a steep angle; and they are going to have to bring in tons of dirt. He commented on moving a survey marker on the property, which is a misdemeanor.

Commissioner Scarborough requested Mr. Trump point out his property; with Mr. Trump pointing out his property on the map.

Mark Hahn stated he lives on Angel Avenue; originally he had two concerns; and one was the size of the house they were going to build on the lot; but tonight they are hearing they will do a binding development agreement to put a 2,000 square-foot house on there, so that does not concern him as much now. He stated his other concern was the size of the lot; as Mr. Trump mentioned, many of the lots there are approximately half an acre, plus or minus; the original owners of the lot knew full well they could not build on the back lot even when they split it; and to be consistent with the neighborhood, they would have to raze the older home that was there so that it would be similar to the other lots in the neighborhood. He stated his concern is having a .27-acre lot that is built on without razing the house behind it because of the size of the other lots in the neighborhood.

Greg Loggins, with Loggins Realty, stated he first listed the subject property in 1996; the owners told him that it was two pieces of property and could be sold as two pieces of property; and that was the plan. He stated he sold the property in 1996 to Chuck Sheridan; when he sells a property he goes down to check with all the agencies to make sure that anything he is telling someone can be done; and so he and Mr. Sheridan went to Zoning and the other agencies who all advised the property was buildable. He stated Mr. Sheridan is on the State Board of Certification for Builders; in 1996 he designed a house to build on this property; but then he took a job in the Virgin Islands, and so in 2002, he decided to list the property, which he sold to Carla Dieterich. He stated he took Ms. Dieterich to all the agencies; he has all the notes from the agencies; and they said yes, it was buildable. He stated they also told him about the new flood zone, where if a property is in a certain area, such as this property is in back, that one could not bring in any fill to flood out the neighbors and would have to build a stemwall; he was not aware
of that regulation; but they were very detailed in checking things out and doing due diligence; and at no time did anybody say this was not buildable. He stated he wanted to be thorough and make sure he did not give any false testimony about what could be done on the property so he hired another builder to do due diligence; that individual went to all the agencies and further defined the special setbacks because it was a corner lot with a 30-foot road going down to the river; they had to design a special house to fit in the plans that Mr. Sheridan did; and at that time he went ahead and bought it based on the information received from Zoning. He stated this time he did the same thing; he checked with all agencies; everything was going good; but then he ran into Mr. Ritchie who had a little better understanding and said since this was not done prior to 1958, that might be a problem. He stated that is the first they ever heard that there was a problem; he has been in real estate for 27 years; and advised of meetings with the former Zoning Administrator who told him Angel City was a special area, done in 1952, with 50-foot lots. He stated that area and one in Cocoa off Jackson Street are the only areas that have 50-foot lots; and they were platted at that time. He stated most of the lots in the area are 50 feet, 56 feet, or 63 feet; and he has highlighted them on the map. He stated the Comprehensive Plan said the zoning they were requesting would fit the needs and be good for the neighborhood; the reason they asked for the 700 square-foot house was because the minimum front footage was 50 feet; and they never planned to do anything less than that. He stated they would like to see nicer houses in that neighborhood because he lives in Newfound Harbor; and he knows what Mr. LaCourt is going to put on the property is going to be nice for the area or he would never have sold the property to him.

Mr. Evans stated the only reason this zoning classification was picked was because of the 50-foot limitation; if the County has one for a 2,000 square-foot house and 50-foot frontage, they would have applied for that one; they were not trying to deceive anyone or be disingenuous; and at the P&Z meeting it was said that the house would be 2,000 square feet. He stated one of the speakers talked about the lots being half-acre, and that if they break up this lot, it would not be a half-acre; but the lot in question is approximately a quarter-acre and the remaining lot is 7,560 square feet. He noted most of the lots that are off the river in the second tier appear to be approximately the same size as the lot that is left in this particular situation; there are generally longer lots along the river; then there are smaller lots on the second tier; and that is exactly what happens in this case. He stated the aerial shows a big lot on the river and then smaller homes behind the big lot, which is what they are anticipating doing; both lots are completely in compliance with the Zoning classification so it is not like they are asking for anything special in terms of zoning; they believe this is a good plan for the neighborhood; they have tried to address the neighbors’ concerns with the square footage and the access off of a public right-of-way so the flag lot is not a potential precedent for the Board to deal with; and they would appreciate the Board’s consideration.

Chair Higgs stated the staff comments indicate the tract was created by the previous owner by splitting platted Lot 11 into two properties in 2002; the current owner of the subject tract also owns the remaining portion of Lot 11; and inquired if that is accurate. Mr. Enos stated the ownership may have changed since the information was created; but at the time staff looked at the public records, the Property Appraiser’s records showed the same ownership.

Chair Higgs inquired if the owner created the problem; with Mr. Enos responding at some time in the past, whenever the lot was created, it would have been whoever the owner was at that time; but they do not know exactly when that happened. Mr. Enos advised if it happened before 1958, both lots would be nonconforming lots of record and could be built upon; but there is no indication it was split that early.

Commissioner Scarborough stated the only person who can split a lot is the owner; and inquired what is Chair Higgs’ point. Chair Higgs stated it was created in 2002 by the current owner. Chair Higgs stated the current owner of the subject tract also owns the remaining portion of Lot 11; and the Board should not feel compelled to give zoning because the owner created the issue and still owns the other part. Commissioner Scarborough stated that has significance.

Commissioner Pritchard inquired are these two lots nonconforming lots of record; with Mr. Enos responding a nonconforming lot of record by definition is a lot that, when it was created, was a legal lot, but may not meet current Codes because something changed, either Code was adopted or lot widths were changed or something like that. Mr. Enos advised both Lots 11 and 11.01 would only be nonconforming lots of record and therefore buildable if they were recorded prior to the Zoning Regulations or in some other manner that was consistent with the zoning that was in place at that time. He noted they do not know that is not the case; but from the information staff has as far back as it has been able to tell, that is not the case. Commissioner Pritchard inquired about 1958; with Mr. Enos responding 1958 was the establishment of the Zoning Regulations, so prior to that, there was no minimum. Commissioner Pritchard inquired if there are separate tax bills on Lots 11 and 11.01; with Mr. Enos responding he does not know. Commissioner Pritchard stated he does not see how the Board can do this because of not knowing when the division happened and the threshold of 1958; that seems to be where the problem is going to lie, whether this is a buildable lot or nonconforming lot of record; and according to the Zoning Regulations and the threshold, it would have had to occur before 1958, so he does not see how they can get around that. Mr. Enos stated if the lot was proven to be a nonconforming lot of record, they would not be here; what the applicant is doing is asking to change the zoning of the lot and legalize it in its current configuration; and the Board will have to decide if RU-1-7 zoning is or is not a good zoning in the area. Commissioner Pritchard inquired if the Board can do it, if it decides to do it; with Mr. Enos responding yes. Mr. Enos advised the RU-1-7 zoning is consistent with the density designation; but the Board needs to decide if it is compatible with the character of the neighborhood in order to decide if it wants to approve it or not. Commissioner Pritchard stated going south of Angel Avenue, there are two houses, one closer to the river and one closer to Angel Avenue; the next lot down is one big home and then the next one is another big home; and going north is the gentleman’s house who spoke, then north of him is a house with some sort of out-building, and then north of that is a single house. He stated looking at the question of setting a precedent by approving this, the houses to the south have already done that; and inquired if Mr. Enos agrees; with Mr. Enos responding yes. Commissioner Pritchard stated it then becomes a question of whether the Board wants to take the position of allowing this to happen on the north side; several people have said that they have spoken to various entities within the County structure who have said yes, they can build a house on the property; but he does not want to go back where the Board has gone before when there is nothing in writing; and he does not want to be looking for the lost memo again. He stated he thinks there is a problem; and because there is nothing to go on at this point, he is going to move to deny.

Motion by Commissioner Pritchard, seconded by Commissioner Colon, to deny Item IV.B.12 as recommended. Motion carried and ordered unanimously.

The meeting recessed at 8:04 p.m. and reconvened at 8:19 p.m.

Item IV.B16. (Z0407207) Fraternal Order of Eagles Aerie #4257, Inc.’s request for CUP for Alcoholic Beverages for On-Premises Consumption in a BU-1 zone on 0.58 acre located on the north side of Hibiscus Avenue, west of Parnell Street, which was recommended by the P&Z Board for denial.

Rochelle Lawandales, Lawandales Planning Affiliates, stated she will go first and Mr. Kirschenbaum will wrap up at the end, if that is all right with the Board. Jack Kirschenbaum distributed paperwork to the Board. Ms. Lawandales stated the Fraternal Order of Eagles needs to move its nest; the nest is a private club like the Elks or the Moose; and they want to build a new building, serve lunches every day, dinners every night, and special meals, just like any restaurant. She stated the group wants to continue to raise money for good causes; it wants to serve the members alcoholic beverages along with the meals; and they want to move from Shore Lanes, where they have been for seven years, to their own nest. She stated this is not a new bar; it is just moving an existing private club, which operates as a restaurant, service its own guests from Shore Lanes into Merritt Park Place, which is a commercial neighborhood with all sorts of uses serving the public. She stated the Eagles cater to their members who are the same people all the time in a private club; and there are a number of them present tonight. She stated the packet includes the Milestones of Eagles’ History, which is a summary of some of the things that the group has done in the community; it gives back approximately $25,000 a year to the community; and there are also letters of support from Miss Ann’s Daycare, several
local schools, the Senior Center, and from the General Manager of Shore Lanes. She stated the first map in the book gives an overview of Merritt Park Place, showing where the existing facilities are that serve food or beverages and where the existing schools or daycare facilities are along with the subject property. Ms. Lawandales stated staff has indicated they meet the test for a CUP; and the Board will find, when looking at the next picture in the book, which shows the site plan, that the zoning is an appropriate use within this area. She stated there will be buffers against adjacent uses; there will be walls, fences, and landscaping; and onsite vegetation will be preserved. She stated it will be a new building in an area that Merritt Island Redevelopment Agency (MIRA) is looking to continue its improvement process and progress; so they meet the test for compatibility. She stated the Eagles will sell meals; they will bring in new patrons to Merritt Park Place; and at the Merritt Park Place Association meeting the other night, Fraternal Order of Eagles President Dan Wilkins was elected Vice President. She stated the use will help Merritt Park Place; and they are going to add decorative lighting and will do many

charitable things within the Redevelopment District. She stated the Board may hear that parking is an issue; MIRA unanimously recommended approval of the request; and MIRA is addressing parking issues. She stated they meet the Codes in terms of parking, landscaping, setbacks, and stormwater; and requested time at the end for additional comments and rebuttal.

Norene Jaynes advised Commissioner Scarborough represented her mother; and Mr. Kirschenbaum has been her attorney for seven years. She stated she and her husband own the property at 385 Hibiscus Avenue; they purchased the property in 1996; and she has additional signed petitions that she gathered from neighbors and clients. She stated when they purchased the property in 1996, the Eagles Club was a tenant of the Plumosa property; they converted the warehouse into an upscale retail business; and what she is going to share is first-hand information because she dealt with a lot of them and many are still members. She stated the Eagles Club rented from them for 20 months; they gave the Eagles Club notice that they would not be renewing their lease and gave them ample time to find another place, which they did at Shore Lanes where she understands they have two more years left on their lease. She stated while they were renting from her, they would start arriving at 8:00 a.m. and it would continue all day long; many times she had to call the Sheriff’s Department because of fights that would break out in the street or the parking lot; and many times she had to lock her doors until the police arrived because she was afraid for her own safety. She stated they parked up and down the street; and she had to have a load of dirt brought in because the property is low and gets a lot of water during the rainy season. She stated since that time the County has beautified Merritt Park Place with sidewalks, curbs, lighting, and so forth; it is definitely making it more upscale; and when they purchased in Merritt Park Place, they were told is was going to be a unique and quaint area, which it is. She stated there are concerns in the neighborhood about the Eagle’s Club coming back into the area; and there are concerns about the children, trees, parking, and their investments. She stated this is a private club; the Eagles attest they now have 260 members; they have to grow to stay in business; they invite guests; and that is not quaint or little. She stated they have 28 to 30 parking spaces, but say they can accommodate the parking; and they told the Zoning Board that they would have 20 to 25 people on any given night. She stated the Eagles Club talks about their famous members who are now deceased; they talk about the good that they do for the community; they talk about all of the donations they do for the clubs; and she understands they distributed some things tonight. Ms. Jaynes stated everybody donates, whether money or time; everyone donates to their churches or the Boy Scouts; and she even sponsors an FIT golf tournament, so she does not think they should dwell on the donations. She stated any organization has good and bad people; it only takes one bad apple to spoil the bunch; it is not about donations or the members who were in the organization; and the issue is location. She stated near Hibiscus Avenue is a bad location for a private club that is going to have people coming in, drinking, and then leaving with children in the area. She stated parking is a real issue; and requested the Board say no.

Pastor Daniel Walker from Victory Life Wesleyan Church stated the Church has been in the Merritt Park Place community for approximately 50 years; he has been the pastor there for the past five years; and there has been a lot of redevelopment that has taken place. He stated the Church’s main concern is the issue of alcohol; the abuse of alcohol and the destruction that has
taken place in the community because of alcohol is widespread; and over the past five years, much of the work that they have done has been to try to help people who have lives that have been destroyed by alcohol. He reiterated his main concern is about the on-premises alcohol consumption and whether that should be in the community; and the Church’s stand is that the on-premises alcohol consumption is not a beneficial thing, and they do not want that lifestyle to be allowed in the community, especially with the daycares, churches, and schools in the area.

Edward Jaynes stated he and his wife own two businesses just a block away from the property being discussed tonight; and he is here representing the people who could not be here tonight, the parents of children, brothers and sisters, and grandparents. He stated he is the proud grandfather of eight grandchildren; and he would have a problem putting his child or grandchild next to an organization that has alcohol. He stated he does not have a problem with the Eagles; he is glad they donate things and do good things for the community; and he does not have a problem with that or with them constructing a building; but he does have a problem with the alcohol license. He stated there are children that go up and down the sidewalks; they skateboard or walk with their parents; and they use his parking lot for skateboarding. He stated it was also mentioned that there are other restaurants that have alcohol in the neighborhood; but that is different than a private club; he cannot take his customers there to eat lunch unless they join; and this is the wrong place for a private club. He stated it is just like jumping out of an airplane; if one does not pull the right cord, there is going to be disaster; and he wants the Board to pull the right cord before there is a disaster.

Commissioner Colon inquired if the Eagles rented from Mr. and Mrs. Jaynes; with Mr. Jaynes responding yes. Commissioner Colon inquired if there was alcohol when they rented from the Jaynes; with Mr. Jaynes responding there was. Commissioner Colon inquired how long did the Eagles rent from the Jaynes; with Mr. Jaynes responding 20 months. Commissioner Colon inquired if there was a conditional use permit at that place for alcohol; with Mr. Jaynes responding yes. Commissioner Colon inquired if the Jaynes allowed that; with Mr. Jaynes responding they did until they saw the problems; and they knew when the lease expired, they would not be back. Commissioner Colon stated she just wanted to be sure she was understanding things; with Mr. Jaynes advising there was a problem.

Dr. Betty Ahmed stated she sent Commissioner Pritchard a letter that was addressed to all the Commissioners and she hopes everyone received it. She stated she and her husband own the property immediately to the north and west; it is residential property; they have rentals in all of these areas; and they have elderly people as well as families with small children in those houses or duplexes. She stated the property they own has been in their family since 1957; immediately to the east of the property is a daycare center; and MILA Elementary School is 360 feet from the property, so if it had been 60 feet closer, the Eagles would not have been allowed to have alcohol because of the school. She stated she and her husband have a parking problem with the current people there; and with 200 people, there would be a problem with parking. She stated they are concerned about inebriated drivers; they feel this is not a match for the community; and they would not want their grandchildren to have to walk on a sidewalk that would pass a place where alcohol is served and consumed, and drivers are coming out, possibly not aware of the children walking to and from school. She stated this is not the proper place for alcohol to be served.

Dr. Mohammed Ahmed stated his property has been in his family for 47 years; and he is here to ask the Board to say no to alcoholic beverages in the neighborhood. He requested the Board think about five points in making its decision: (1) the size of the property, which is .58 acre and its suitability for this type of activity; (2) the noise level for the neighborhood; (3) parking places; (4) property values; and (5) whether Miss Ann’s Daycare has informed parents that it is supporting this rezoning. He stated another issue is the effect on surrounding properties; and these are factors he would like the Board to look at before making its decision. He stated if he was in front of the Board asking to open a commercial place like a restaurant on .5 acre, he knows the Board would not permit it, and requested the Board think about the club.

Danny Wilkins stated he has been in law enforcement for 30 years; he is presently warden at the Brevard Correctional Institution; and he is a member of the VFW, the Moose, and currently is President of the Eagles. He stated he addressed the Merritt Park Place Association and apprised them of what good neighbors the Eagles would be; they are dedicated to beautifying the area; and he advised them of all the charitable contributions the Eagles have done. He stated their plans are to beautify not only their place but the area surrounding it; and he got the sense they were well received because he was voted in as vice president of the Merritt Park Place Association. He stated the Eagles are a great organization with truly professional members dedicated to the community; and thanked the Board for its support and consideration.

Stephen A. Johnson stated he has been a resident of Merritt Island for 20-plus years, and has been a member of the Eagles for five years; and tonight he is here only to speak to the positive side of the Eagles as he heard a lot of negatives tonight as well as innuendoes and half truths. He advised he has suffered from a degenerative bone disease for 20 years; recently the Eagles organization held a benefit in his behalf and was able to raise enough money for him to pay his bills during his time of recuperation; and he stands here tonight one month removed from an operation and progressing very well. He stated he expects to be back to work in two weeks; and with the help of the Eagles and their blessings on his behalf, this operation would not have taken place. He stated this is just one example of the kind of things that the Eagles can do and have done; and he hopes the Board will consider these things in its decision.

Don Shannon submitted a petition; and stated he was at the P&Z meeting and tonight he has an update. He stated the Eagles said they have 253 members, not all active; they showed on their plans that they have 23 parking spots; with 23 parking spots and people coming with four people per car, even if half their membership showed up, there would still be 31 cars over what they have space for; and if half of the members brought guests, that would be another 15 cars, or 46 cars, which is more than what the area can handle for parking alone. He stated the Eagles said, at the Merritt Park Place meeting, that they have 50 to 60 people a day coming in; even at that, if they came in half of the time, they are still taking more than 25 to 30 parking spaces that are available. He stated last Tuesday he was elected president of the Merritt Park Place group; and he is looking forward to working with Danny Wilkins in beautifying the area and things like that. He stated their position is not that they do not think the Eagles are a charitable organization; they are probably a bunch of nice guys; but their position is that the location they picked next to a daycare is not the right place for this use. He stated he met with them last Saturday and offered to help them find something else more suitable; he also suggested a place for them; and he does not know if they have looked at anything. He stated he was at the MIRA meeting where there was a discussion about parking at Merritt Park Place; it is a real problem already; and they have not come up with a viable solution as of yet. He stated on the lot the Eagles want to build on, there are several trees; a couple of them look to be 100 years old; and he is not sure they can build without taking those trees down. He submitted additional paperwork; and stated the Eagles plan on their hours being from 12:00 noon until 8:00 p.m.; the daycare center is open between 8:00 a.m. and 6:00 p.m.; there will be people coming and going who will probably be impaired; and it is a bad situation for the children. He stated he has some expertise in bars from both sides of the stool; he was a bartender, bar manager, and an EMT, where he had to bring people out of bars who had been shot or stabbed; and in Orlando he owned a shop right next to a bar, and after the bar was closed he had to deal with residuals, which could be anything from beer bottles and beer cans to underwear and things like that. He stated he had to bring up the dark site; and he hopes the Board will vote against this.

Cynthia Powell stated she is a merchant in Merritt Park Place; she owns the Wacky Hut on McLeod Street; she is also a proud member of the Fraternal Order of Eagles; and all of the work that they do is a very positive thing. She stated they do not serve alcohol to someone who is past their limit; and they have to adhere to the same laws as if it was a public club. She stated she is also past president of the Merritt Park Place group; Merritt Park Place is going to be wonderful one of these days; and she would love to have 10% of the Eagle membership walking through her shop in a day because that would be 26 people, as now she is lucky to have four or five people come into her shop. She stated there is not enough traffic in Merritt Park Place; there are doctors, dentists, salons, nail techs, daycares, co-op schools, and churches; there is a wonderful variety; they have two restaurants that serve beer and wine on Grove Street; and she does not think they have any difficulty with any residual leavings around the building or anyone driving down the street inebriated because they adhere to the same laws regarding alcohol. She stated she is in full support of an honorable private club such as the Eagles coming into Merritt Park Place to help it grow and go into the future; and she hopes the Board looks at this from the standpoint that the club did have a CUP at its current location; it meets proper guidelines; and she is sure they will be honorable and adhere to all the laws they are supposed to adhere to.

Attorney Jack Kirschenbaum, with Gray Robinson, stated the Board has a letter in the package from Joseph DeMaria; and read aloud, “My name is Joseph DeMaria, The property directly behind my daycare is owned by the Eagles Club. They plan on building on this site. I have no objection to this plan. Thank you. Joseph DeMaria.” He stated the issue of the daycare being next door is not an issue; and the owner of the daycare has no problem with the plan of the Eagles. He inquired how the Board feels when someone comes before it and complains about things the Commission did in 1996, and do the Commissioners say they were not there then. He stated the Board met the president of the Eagles; it met many of the members; they cannot go back in time and say if the parties had problems, those are the problems today; the evidence is before the Board; there are letters from Shore Lanes saying there are no such problems; and there are no Sheriff’s reports, no riots, and no underwear in the parking lot. He stated the Board cannot look at what was then and apply it to now; and if he were to give a grade, he would grade the Eagles A+. He stated on page 78 of the staff report it says the request appears to be consistent with the requirements of Section 62-1906 for approval of alcoholic beverages for on- premises consumption; on pages 79 and 80 with regard to Section 62-1901 concerning impact, it says the proposed use of the Hibiscus facility would redevelop an infill parcel within Merritt Park Place in the MIRA District, and as such there would be only positive benefit from this conversion of a vacant older building into a productive use and no adverse impact is anticipated from the request. He stated with regard to Section 62-1901(c)(1)(b), the roadway system in the area can handle any additional traffic from this use; the Eagles proposed to use the existing building onsite until a new building can be built; the site would meet all the County’s regulations for setbacks and parking; and on the same page it advises that property values in Merritt Park Place area have continually risen, and there would be no diminution resulting from this use. He stated the whole report says “no impact”, “this complies”, “it is consistent”, “the issue is compatible”, “no loss of level of service”, “no adverse impacts”, or in effect, “no impacts.” He stated there are half a million folks living in the County; and inquired if they all come to the Commission meetings or even watch. He stated there are many more members of the Eagles Club than will come to the club at any given time; they have been told that their use is 25 to 35 people at any time; all the parking requirements are clearly satisfactory for this use; and the Board has broad discretion for issuance of a CUP, but it cannot be arbitrary or capricious and has to weigh the evidence before it. He stated the Board has to look at the staff report and take all of these things in; the Board has a difficult decision to make; and it has to balance the interests of those who have come before it and say they do not want the club and the interests of the Eagles who have every right to put their club at this location. He stated the only issue for the Board is whether or not they should be able to serve alcoholic beverages just like the other restaurants in the area. He advised this is not a new outlet; he understands Reverend Walker’s concern about alcoholic beverages in the community; but the Eagles are just moving from one location to another on Merritt Island; and this does not create an additional outlet for alcoholic beverages. He stated if the Board uses its discretion and looks at the evidence, it will find that this meets all of its legal requirements in order to obtain a CUP.

Commissioner Pritchard stated Mr. Kirschenbaum made a comment about the Eagles having every right in the world to put a club at this location; but he is concerned about the parking. He stated they have 23 spots; he was on Hibiscus Avenue the other day to look at the area; and he has driven around Merritt Park Place enough to know there is a parking problem there. He inquired with the membership being what it is, 23 parking spots, and the condition of Hibiscus Avenue where the overflow might go, what requirements are there of any other activity that would want to come to that location such as a restaurant or retail store. Mr. Enos stated the parking standards vary widely by use; it is based upon square footage typically; and in some cases it is based upon seating, but is really use dependent. He stated standard parking requirements for unspecified retail use are one space per 200 square feet; it would be based on the size of the building; and they do not know whether or not the parking layout is based on the general standard or if there is a specific standard in the Land Development Regulations that would apply; but whatever the standard, it would be applied at the site plan stage and would be based on the specific use of the property. He stated if the building was too large for the parking lot, it would be necessary to increase the size of the parking lot or reduce the size of the structure. Commissioner Pritchard stated he has two renderings of the proposed site plan; one shows 23 spots and the other 28 spots; and inquired if the 23 spaces is the current proposed site plan; with Mr. Enos responding they are both conceptual site plans; and he does not know which is the current one. Ms. Lawandales stated the site plan was revised; what Commissioner Pritchard has is probably an old one; and the one that went through the P&Z is in the book, and is correct. She stated the intent is to build the new facility there, and once it is built, the area would either serve as parking or retention; they believe they can save a good portion of the tree canopy; and they have 28 spaces on the site plan; but Mr. Enos is correct in that they will have to meet whatever the requirements are just like other entities did. Commissioner Pritchard stated reading from the minutes of MIRA, it says, “In addition the MIRA Board expressed their concern with regard to the lack of parking in the general area, which hopefully will be addressed during the site plan approval process”; and inquired if the Board approves this, what type of action is forthcoming if the lack of parking in the general area cannot be enhanced. Mr. Enos advised the Code requires a certain amount of onsite parking spaces; typically a use should not depend on street parking; and the parking, size of the building, and maximum occupancy of the building are all related.

Mr. Kirschenbaum stated the only issue tonight is whether or not this property has the right to obtain a CUP for the purpose of serving alcoholic beverages; if it does not, it does not affect the ability of the Eagles to build on the property; and it would just have to go through the site planning process. He stated they could open a club, a restaurant, or whatever, but just could not serve alcoholic beverages. He stated the step tonight is the first step to determine what the structure should be like, what the occupancy would be like, and what parking would be required; and that would all come before the appropriate planning agencies later. He stated before they go down that road, they have to know if they can serve alcoholic beverages; and that is the only comment he wants to make regarding parking. He stated the building in the pictures may or may not be built; it may have 16 places to park or 30 places to park; but they will not go there until they know if alcoholic beverages are permitted to be served at that location.

Commissioner Pritchard stated he does not want to give any false hope of getting that far; and he does not want to grant the CUP for alcohol and then not have enough room for parking, etc. He stated he wants to discuss those issues; he appreciates Mr. Kirschenbaum’s comments; there are 28 parking spots and a membership of 200; he knows that 200 are not going to show up except for special occasions; but there is going to be spillover because 28 spaces is probably not going to be enough room. He inquired what is the potential of that happening. Mr. Enos stated it is certainly a possibility; the building will be designed for a certain amount of occupancy; and it is not going to be 250. He stated he cannot imagine they could design the site with a building that would hold 250 people so they would have to limit the occupancy to whatever the Fire Marshal establishes as the occupancy of that building; and if that number is substantially less than 250, then he does not know how they are going to do it; but they would have to police themselves; and if they fail at doing that, then they would have a violation and the Fire Departments are going to go out and make sure they do not do it again. Commissioner Pritchard stated the potential of having 3,800 square feet of building might not accommodate the needs of the Eagles Club with their current membership, let alone if it gets bigger. Mr. Enos stated there is the possibility that they would have some events where every member would show up. Commissioner Pritchard stated he does not think there is enough room; he has nothing against the Eagles; he thinks what they do is wonderful as an organization; and he is certainly no Carrie Nation, so he is not going to take up that aspect of it. He reiterated they do not have enough room; they are going to have to overflow out onto Hibiscus Avenue; and it is going to create a problem. He stated the Eagles do not have a joint parking agreement with other neighbors that would allow an overflow; it is an area that needs development; but the Eagles need more room to do what they need to do and have a good clubhouse.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to deny Item IV.B.16 as recommended.

Chair Higgs states what concerns her is the Board needs to focus more on the issue of the conditional use permit.

Commissioner Carlson stated what she seconded was denial of the CUP because she does not think right now the Board is dealing with parking issues, etc. although she has similar concerns because the CUP does not appear to be compatible with the neighborhood.

Commissioner Colon stated she has been pretty consistent; she told Rochelle that she always has a problem with allowing a CUP for Alcoholic Beverages in this kind of community; and she just wants to stay consistent, so will be voting against this request.

Commissioner Scarborough stated they talked about compatibility; and in the future he would like to know about other CUP’s in the area or other things of a similar nature because a lot of it got into the nature of the clientele and their demeanor as they depart. He stated there are certain areas in a community where people go, stay out late, and it is expected and just part of the community; then there are others where it is a quieter neighborhood; and that may be something the Board can use as a tool in the future. He stated it would be a more objective tool as opposed to just comments from neighbors; but he will be voting in favor of Commissioner Pritchard’s motion.

Chair Higgs called for a vote on the motion to deny. Motion carried and ordered unanimously.

Item IV.B.17. (Z0407301) Barefoot Bay Water and Sewer District’s request for Small Scale Plan Amendment to change the Future Land Use Map designation from Residential 4 to Public Facilities, and zoning from TRC-1 to GML-H with a CUP for Water Treatment Plant on 1.64 acres located on the east side of West Egret Circle, and having frontage on the north side of Royal Fern Drive, which was recommended for approval by the LPA and P&Z Board.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to approve GML-H and CUP as recommended by the P&Z Board and LPA; and adopt an Ordinance amending Article III, Chapter 62, of the Code of Ordinances of Brevard County, entitled “The 1988 Comprehensive Plan”, setting forth the Tenth Small Scale Plan Amendment of 2004, 04S.10, to the Future Land Use Map of the Comprehensive Plan; Amending Section 62-501 entitled Contents of Plan; specifically amending Section 62-501, Part XVI(E), entitled the Future Land Use Map Appendix; 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 IV.B.25. (Z0407405) Willis Slade Bubier and Betty Ann Bubier’s request for CUP for Alcoholic Beverages for On-Premises Consumption (beer and wine) in a BU-1 zone on 0.14 acre located on the north side of Ocean Boulevard, west of Highway A1A, which was recommended for approval by the P&Z Board accessory to restaurant use only.

Willis Bubier stated he owns the property on Ocean Boulevard; because the restaurant was closed for more than six months, the conditional use dropped off; and the people who currently own the restaurant are requesting a beer and wine license.

Commissioner Carlson requested Mr. Enos explain the circumstances for expiration of the CUP. Mr. Bubier stated the restaurant was closed for more than six months. Mr. Enos stated that sounds like a nonconforming use; it was probably an old alcoholic beverage license that preceded the zoning requirements; and if unused a nonconforming use will expire in six months. Mr. Bubier stated they did not buy the place until nine months after. Commissioner Carlson inquired about the neighboring uses; with Mr. Enos responding there is a convenience store with gas station to the east and he is not sure what is to the west, but it is a commercial use. Commissioner Carlson stated it looks like there is a shopping center due south; with Mr. Enos responding it is a strip commercial center. Commissioner Carlson inquired if the intention is to have a restaurant with beer and wine use only; with Mr. Bubier responding yes. Mr. Bubier stated the P&Z recommended beer and wine only and not an open bar. Commissioner Carlson stated she has heard no objections from the neighborhood.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to approve Item IV.B.25 accessory to restaurant use only as recommended by the P&Z Board. Motion carried and ordered; Commissioner Colon voted nay.

Item IV.B.21. (Z0407401) Fred Boozer’s request for change from EU to RU-2-6 on six acres located on the east side of US 1, north of Ruby Street, which was recommended by the P&Z Board for denial.

Rochelle Lawandales, Lawandales Planning Affiliates, submitted paperwork to the Board; and stated she is representing Mr. Boozer who has three properties before the Board this evening, two he is proposing for residential development and one for commercial development. She stated the one before the Board at this time is a six-acre parcel; and pointed out the parcel on the map. She stated the parcel is just south of Viera Boulevard, which is an urbanizing area; the parcel is proposed to go from EU to RU-2-6 to allow for six dwelling units per acre; and this would give the ability to have 36 single-family attached units in three buildings as shown on the map. She stated as the Board can see on the map, the two parcels to the north are separated by AU; further north is Clayton Crab Company and Riverway Condos, which are RU-2-10; all of the parcels shown in pink are RU-2-10; and the two orange parcels are EU. She stated on Ruby Street the segment of EU-2 is abutted on the south by RU-2-10; then there is RU-2-6, RA-2-10, and RU-1-11; and moving further south, the area is a mix of zoning districts and different types of land uses. She stated a new development, Laguna Estates, has just been approved for six dwelling units; it is to the south; and the Future Land Use Map establishes Residential 15 on the parcel. She stated they meet all the criteria of Policy 1.4 of the Comprehensive Plan; and read aloud, “Unincorporated areas, which are adjacent to incorporated areas, may be considered a logical transition.” She stated this is a logical transition; the whole area is designated Residential 15 under the Comprehensive Plan; it is adjacent to similarly designated lands; and it has access to an arterial or collector roadway. She stated they are asking for RU-2-6, which would restrict it to six units to the acre. She stated the pictures show there is a portion of the property, 2.5 acres, that are wetlands; to develop the property as single-family would destroy those wetlands; and what they are doing is preserving over 1.5 acres of the wetlands, which are the areas to the north and south of the entry roadway, and clustering development back toward the river in three buildings that meet the height requirements of 35 feet of living level. She stated there will be a pool house, a gazebo, and parking underneath; and they meet all the County’s requirements for setbacks, breezeways, and other buffering. She stated people will not see anything from the entry road; it will be a gated entry; the property slopes; and all of the tree canopy and cover will be preserved. She stated they have taken the units that would be built in a single-family environment and shifted those into attached units. She stated the issue of compatibility is one that is always grappled with; there is already developed EU adjacent to developing RU-2-10; and they can live very peacefully in harmony together. She stated there will be landscaping, fences, walls, and other setback requirements that will shield and protect both developments; the development pattern, which is urbanizing, is predominantly very expensive living; and the proposed units will be very expensive and will coexist well with large buffers to the north and south, setbacks along the river, and walls. She stated there is no reduction in land values; they are high-end units of over 2,000 square feet; the emerging pattern is changing in this area; and that is one of the criteria the Board is looking for when doing a rezoning. She stated they are not going to affect any other neighbors; they will not impact any roads or schools; they are preserving the wetlands; and they meet the County’s criteria under the land use classification of Residential 15 and for consideration under rezoning. She stated the pictures the Board has show the pristine nature of portions of the site that are going to be preserved by enabling this kind of development; they are doing an infill development in an area that is changing; and that is for a variety of reasons. She stated she would like to reserve the rest of her time for rebuttal.

Attorney Richard Torpy stated he is also present on behalf of Mr. Boozer and his application; he has nothing to add to what Ms. Lawandales has represented to the Board; and the staff report has adequately covered the issues, leaving for the Board’s consideration the issue of compatibility in the surrounding area. He stated, as Ms. Lawandales has represented, the area is changing; he lives just south of the most recent condominium that was approved on US 1; he will have a direct view of that condominium from his backyard; and he has no concerns, and is excited to see some high end planned development coming to the area. He stated the proposed use is compatible; there has not been any input from anyone in opposition to the project, which also speaks highly for its compatibility to the area; and considering the record that has been established with the staff report, Ms. Lawandales’ comments, and the lack of anyone speaking against the project, he is requesting the Board approve the item.

Ms. Lawandales stated they would appreciate the Board’s recognition that the project is consistent and compatible with the plan, the development pattern, and the adjacent residential development that is ongoing or proposed to be developed. She stated the parcel is not part of the piece to the north; it is separate and distinct; there is not going to be a wall of condominiums; there will be three separate buildings, so there will not be the wall effect there is in some buildings on the beach; and this project is going to nestle itself very well into the site within the height limits of 35 feet of living, and will preserve a very pristine area with the wetlands that are there.

Commissioner Colon inquired why the Zoning Board denied it; with Ms. Lawandales responding there was some discussion about the fact that it went all the way to the river; some members did not want to see a big oceanfront condo sitting on the river; and in all fairness, the hour was late. Ms. Lawandales advised they have shown they will not have a wall of condos there.

Chair Higgs stated Ms. Lawandales did come by her office and they talked about the items that she is discussing tonight.

Commissioner Carlson stated she also talked to Ms. Lawandales; and the only concern she has about this is the depth, and that is where the P&Z was having a problem. She stated on the map, there is a large hunk of EU/AU in this area; the two parcels shown in yellow are the ones in question for Mr. Boozer; and she has not heard from anybody in this area. She stated historically when there is a large area that is consistently AU or EU, she would not have a problem if she knew the applicant had been in contact with the people in the area; it does not appear that there are homes nearby on property to the south or north, but they are still AU/EU all the way up with one sliver of RU-1-7 that is in question tonight on another proposal. She stated the closest RU-2-10 is much further down; it is infill because there is RU-2-10 way above the AU and RU-2-10 below; and her concern is the depth. She inquired about the depth for commercial; with Mr. Enos responding 300 feet. She stated then there is a less dense area in the back; it does say Residential 15, not RU-2-15; and she is concerned about that. She stated she could either agree with the P&Z and deny the item or she could table it to have discussion about what is going on with the neighborhood because she is concerned that if something is put in there that has that much additional density, there may be some conflict and incompatibility.

Commissioner Colon inquired what would the ratio be per unit for residential area; and stated Ms. Lawandales made that comparison that was a bit attractive. She inquired how compatible is the residential versus the condo unit. Ms. Lawandales responded they are very compatible; and there are examples all over the County of multifamily townhomes, condos, etc. peacefully coexisting and abutting each other. She stated the Plan recognized it as Residential 15; 15 units to the area is urbanizing; this is where they want to focus a variety of housing opportunities at a variety of different kinds of density levels; and they can be compatible with each other. She advised the units are going to be approximately 2,000 square feet and at six units to the acre, they can have 36 units. Commissioner Colon inquired if they could have 36 units now; with Ms. Lawandales responding no, under EU, they would have to have a 15,000 square-foot lot, so that would be roughly three units per acre or 18 total units. Commissioner Colon stated that is the number she was trying to figure out, whether it is all in one area or whether they utilize the entire piece of property; and she was trying to see what kind of damage would be done to the environment. Ms. Lawandales stated as single-family development, they would go in and mitigate, which would almost obliterate approximately 1.4 acres of disturbed nonproductive wetlands and they would do something about another 1.5 acres that may or may not be able to be used, so a lot more of the land would be disturbed than what is proposed to be developed under the current scenario. Commissioner Colon stated Commissioner Carlson is just saying she wants to have a better idea of the community. Ms. Lawandales stated they would be glad to table the item.

Commissioner Carlson stated she hates to do that; all the points Ms. Lawandales brought up are well taken; the Comprehensive Plan has that as Residential 15, but the way the community has evolved is AU and EU and does not seem to be changing; and that is the real reflection of the land, but it is not built on now. She stated she does not have a clue what those people are thinking or what their intent is; without doing a small area plan and finding that out, it would be difficult to go forward unless they could make contact with some of those people to find out. She stated she is just talking about the AU/EU area; and it is one thing to say it is compatible, but there are big chunks of EU in between. Ms. Lawandales stated the lands north of the six-acre parcel have an application pending right now to convert the lands to a higher density than AU; it is not part of the project she is talking about; it is a different application; but there is a recognition in the marketplace that the AU was a holding zone and these lands are not functional or productive under AU or even under EU in some cases, so what they are going to see by virtue of the location on US 1 and some of the existing commercial development is that this is an urbanizing area. She stated it is South Rockledge; what is going on in Viera is right across the street; and the propensity is there for conversion of these lands.

Commissioner Scarborough stated he is going to support Commissioner Carlson’s motion but wants to make a comment afterwards.

Commissioner Carlson stated she would be more comfortable sitting down and talking about this a bit more and bringing in anyone else who has an interest in this area; it is a small area that is bound by what looks like an eventuality; but she would still like to give the community an opportunity to voice concerns about any encroachment on their rights as far as the way it has been developed so far. Ms. Lawandales stated they would be delighted to work with Commissioner Carlson on that.

Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to table Item IV.B.21 to the October 7, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Commissioner Scarborough stated when the discussion was going on with the item north of Cocoa, one homeowners group and then another came forward, and they were beginning to get comments on traffic in the area from Rockledge south to Melbourne about the small area. He commented on transitional issues, a marina shifting over, and the nature of the community. He stated there is something nice about looking at the community because there are unique communities; and the ability to define them prevents the fragmentation and diminution of value by having conflicting usages. He stated he is not saying one is right or one is wrong; but if the Board gives mixed signals based on individual cases, it can do a disservice to everything there.

Chair Higgs stated the Board has seen a couple of times tonight where people have looked at some of these densities that are in the 15, and there is not an acceptance. Commissioner Carlson stated it is not the reality. Chair Higgs stated 15 units an acre on the river and in some of the residential neighborhoods is not what folks want to see, nor will the infrastructure support it.

Item IV.B.23. (Z0407403) Fred D. Boozer, Jr., Trustee’s request for change from RU-1-7 and BU-1 with Existing Binding Development Plan to RU-2-6 with removal of existing Binding Development Plan on 3.38 acres located on the east side of US 1, north of Ruby Street, which was recommended by the P&Z Board for approval.

Commissioner Carlson stated this parcel is further north; and pointed out on the map the triangular shaped piece with a little bit of RU-1-7. She stated they want to do RU-2-6 on that piece as well; that falls back to the same issues that the Board talked about earlier; and as long as the applicant is okay with it, they will look and talk to folks in the area. She stated she would like to table it to the same meeting and talk about both applications at the same time, along with conversation with the rest of the community.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to table Item IV.B.23 to the October 7, 2004 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item IV.B.24. (Z0407404) Fred D. Boozer, Jr., Trustee’s request for change from BU-1 to BU-2 on 1.71 acres located on the west side of US 1 and opposite the west end of Ruby Street, which was recommended for approval by the P&Z Board with a Binding Development Plan for mini-warehouses only and all BU-1 uses, and EA on the wetland portion in the northeast corner of the property.

Commissioner Carlson stated this item has a binding development plan for mini-warehouses only and all BU-1 uses; the Board has done this before; and the compatibility issue is not one that looks to be as difficult as the others. She pointed the area out on the map; and stated there is the railroad behind it, US 1 in front of it, and it is adjacent to Florida Memorial Gardens.

Rochelle Lawandales, Lawandales Planning Affiliates, representing the owner, stated it is just to the north of Florida Memorial Gardens; and there is a piece that separates it. She noted on the map Florida Memorial Gardens is shown in blue on the west of US 1; to the north of that is a piece of property; and then there is a piece shown in yellow, which is proposed to go from BU-1 to BU-2 and a little portion of EA with a binding development plan to allow only the storage facilities and restrict it to all BU-1 uses on approximately 1.71 acres.

Commissioner Carlson inquired if the Board has done this in the past this way; with Mr. Enos responding yes. Mr. Enos advised the Board has approved mini-warehouses, which requires BU-2 zoning but has a retail feel to it, in BU-1 types of areas as long as there was a binding development plan limiting the use to mini-warehouses only.

Chair Higgs inquired if the Board has also had some contingencies in the binding development plans in regard to the architectural features meeting the criteria of the retail look; with Mr. Enos responding in some cases, the Board has gone that far, but not in all cases. Chair Higgs stated they are going to have to come back with a binding development plan on a regular agenda; with Mr. Enos responding it will come back on a regular agenda, typically as a consent item, but it can be opened up again. Chair Higgs stated the items on those were fairly simple in regard to some architectural issues for the mini-warehouses to make it more compatible with the surrounding retail area.

Commissioner Carlson inquired if there is a concept plan or anything in terms of the architectural features and things like that; with Ms. Lawandales responding she does not think there has been any planning or design done on the project yet.

Chair Higgs stated she does not think the features have to be there; and inquired about past criteria. Mr. Enos stated sometimes it was additional setbacks, landscape buffers to the front to soften the front wall, and sometimes it required there be no doors visible toward the front.

*Commissioner Colon’s absence was noted at this time.

Chair Higgs stated those could be handled if Commissioner Carlson is interested in going ahead with this; they could be handled in the binding development plan; and the Board could go ahead and when the BDP returns, those could be outlined.

Commissioner Pritchard suggested there could be an elevation rendering. Chair Higgs stated she does not know that there has to be a rendering as long as they specify. Commissioner Carlson stated they will specify in the binding development plan; the Board can pass it on the condition they will sit down a little more with the binding development plan and look at what was done in the past; and there were concerns when Memorial Gardens had expansion not too long ago, and the neighborhood across the street had serious concerns about how things were going to look on that corridor, which is a scenic corridor. Chair Higgs stated there are examples in previous binding development plans that could be reviewed. Ms. Lawandales stated they can find some things to include at least for discussion purposes. Commissioner Carlson stated they will bring the binding development plan back to a regular meeting, but not under consent because they want to make sure the Board is okay with it. Assistant County Manager Peggy Busacca inquired if based on that, should they table this as a public hearing; with Assistant County Attorney Eden Bentley responding it is a gray area. Attorney Bentley clarified if the Board thinks it is going to open it back up for more than just discussion about what the features would be, there could be the possibility of that. Commissioner Carlson stated if it came back on the Consent Agenda as it normally would, any Commissioner with a problem after reviewing it could then address it. Attorney Bentley advised then it might have to be readvertised, which is more money; and the other option is to table it and have it come back with a draft. Ms. Lawandales stated their preference would be for the Board to approve it contingent upon an acceptable binding development plan. Commissioner Carlson stated that is fair.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to approve Item IV.B.24 with Binding Development Plan as recommended by the P&Z Board, contingent upon submittal of an acceptable BDP. Motion carried and ordered unanimously.

Item IV.B.26. (Z0407406) Cousins Properties, Inc.’s request for CUP for Alcoholic Beverages for On-Premises Consumption in a PUD-DRI zone on 1.711± acres located on the east side of Lake Andrew Drive, south of Judge Fran Jamieson Way, which was recommended for approval by the P&Z Board accessory to restaurant use only.

Patricia Adams, with Brinker International in Dallas, Texas, stated they are proposing to build a Chili’s Restaurant at The Avenues; and they are requesting a CUP for Alcoholic Beverages for On-Premises Consumption.

Chair Higgs inquired if that would be accessory to the restaurant; with Ms. Adams responding they agree to that. Commissioner Carlson stated she has no problem with it.

Motion by Commissioner Carlson, seconded by Commissioner Pritchard, to approve Item IV.B.26, accessory to restaurant use only as recommended by the P&Z Board. Motion carried and ordered unanimously.

*Commissioner Colon’s presence was noted at this time.

Item IV.B.27. (Z0405102) Barry R. and Susan L. Bostwick’s request for change from AU to RR-1 on 1.88 acres located on the southeast corner of Grand Perrin Road and Dixie Way, which was recommended by the P&Z Board for denial.

Susan Bostwick inquired if the Board has any information on the item; with Chair Higgs responding yes, the Board has maps and recommendations from staff. Ms. Bostwick stated she and her husband own the property shown on the map in red; it is the triangular piece at the bottom of the map; and they owned 4.38 acres, which are zoned agriculture. She stated they built a house at the north end; and they want to rezone 1.88 acres where the house is to RR-1 and leave the remaining 2.5 acres agricultural and build a house. She stated they have personal reasons why they want to do this; and the main one is that they are a single-income family raising five children. She stated she checked into this before they wanted to divide it; when it was heard the first time, one of the members on the P&Z Board suggested making it more compatible with the area; and when she called the P&Z office, she was told she would be able to do the 1.88 and 2.5 acres. She stated they actually wanted to keep more than 2.5 acres, but they were told it would be better to do it that way to make it more compatible with the area. She advised they would be in compliance with all the setbacks to build another house; they are not developers; they want to put one house at the other end of their property; and she understands there are a couple of neighbors who do not like the idea. She stated it is her understanding that one of the neighbors mentioned she did not like looking at the house when she came out of her driveway; but the woman lives across the ditch and the street; and inquired why the woman did not buy the property. She advised a couple of people are wanting to dictate what they do with their property; she does not feel it would set a precedent; all the areas shown in pink on the map are RR-1 zoning around her property; the man who lives next to her, who has 20 acres, does not care what they do; the man across the street from her has eight acres and does not care what they do; and the man next to him and the people behind him, do not care. She stated it only seems to be two neighbors; and one lives behind her, and lived there before anyone moved out there. She stated she understands people do not like change; but if they did not want anyone building on the property, she does not understand why they did not buy it because it was for sale more than twice that she knows of. She stated they bought the property and built a house; and she wants to rezone and build another house to make life more affordable.

Robert Taylor stated he has no question about Ms. Bostwick having the property and building on it; but he owns property 500 feet from her, is a citrus grower, and prefers they leave the 2.5 acres. He stated at the other end of the property is a pond; and inquired if it is necessary to stay 75 feet from any pond to build.

Sherry Williams with the Office of Natural Resources Management stated the 75-foot setback from private lakes would depend on whether or not there is a well there; in some cases the setbacks can be 25 feet from the property line; and it depends on what is surrounding the pond. Chair Higgs stated that is part of the building process and not necessarily zoning; with Ms. Williams responding that is correct.

Ms. Bostwick stated they have measured more than 75 feet from the pond if they were to build another home; they checked all the setbacks before they decided to do this; and advised Mr. Taylor’s property is more than 500 feet from hers. She noted his mother owns the property; and they do not live in the neighborhood, but live on US 1, so her building a house is not going to affect his grove. She stated her property was a non-productive grove; the County took away the agricultural exemption even though it is agricultural property; and it would have been a significant amount of money to make the grove productive again, so they decided not to do that.

Commissioner Scarborough stated for this area to get 140+ names in opposition is fairly large; there is a recommendation for denial; and looking at the map this would be an anomaly in a sea of AU.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to deny Item IV.B.27 as recommended by the P&Z Board. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: NORTH MERRITT ISLAND DEPENDENT SPECIAL DISTRICT
BOARD RECOMMENDATIONS OF JULY 15, 2004

Chair Higgs called for the public hearing to consider the recommendations of the North Merritt Island Dependent Special District Board (NMI) made at its July 15, 2004 meeting, as follows:

Item IV.D.4. (NMI40704) Alan F. Moros and Linda L. Moros’ request for change from AU to RR-1 on 2.97 acres located on the south side of Porcher Road, east of North Topical Trail, which came forward with no recommendation from the North Merritt Island Dependent Special District Board.

Linda Moros stated she currently resides in Rockledge, and she and her husband are lifelong residents of Brevard County; the purpose of her appearance tonight is to request a change of zoning on 2.97 acres located on Porcher Road in North Merritt Island; the property is currently zoned AU; and they are requesting a zoning change of RR-1 to allow she and her family to divide the property in half, creating two pieces of property approximately 1.5 acres each. She stated the rezoning review worksheet that was prepared by staff provided to them the current zoning that would be considered under future land use development; furthermore, the rezoning proposal can be considered as well under the future land use designation of Residential 2, which would be two units per acre. She stated their request would be a reduction of the future land use designation; it is substantially less than recommended in the Comprehensive Plan; and according to the worksheet, acceptable levels of service would be maintained and school capacity need not be evaluated due to the potential yield of only one additional unit. She stated the properties abutting the parcel to the west, east, and south are zoned AU as well; the property on the north side of Porcher Road directly across the street from their property is zoned EU-2; and it was rezoned from AU in May 1997 with a binding development plan limiting the density to one unit per acre. She stated located approximately 1,000 feet to the west is a
tract of land of 110 acres, which is also zoned EU-2, allowing for 110 units on one acre homesites; to the south of the tract is Treasure Lagoon, which is already developed with an EU zoning designation; and 900 feet south of their parcel is the Citrus Club Subdivision consisting of 66 homesites with an EU-2 designation, not to mention the subdivisions of Indian Bay and several others in the area. Ms. Moros stated during the initial hearing with the North Merritt Island Board, there were concerns about maintaining the consistency of the 2.5-acre minimum lot size; however, if one were to review the current zoning map, it would show that the southwest corner of Porcher Road and Tropical Trail has a total of 12 parcels, and of those two are less than 2.5 acres, one is at 1.05 acres and one at 1.41 acres. She stated another concern was if the zoning were to take place, there could be as many as nine homes built with access from Porcher Road; but after research, they found this to be incorrect due to lack of additional easements and the property already being flag lots, and so not able to be split again. She stated she and her husband are both civil servants; and they have the utmost respect for their neighbors and their opinions; however, they feel that the Porcher Road corridor should be viewed properly from the corridor on North Tropical Trail. She stated they base this belief primarily on the fact that the property is accessible off North Tropical Trail; only one property abuts their property by 207 feet; and as it currently stands, there are 16 parcels on Porcher Road. She stated one property is zoned BU-1; ten are zoned EU-1; and five are zoned AU; and clearly the consistent character of the area is homes on one-acre lots. She noted her property would equally divided into 1.5-acre tracts, thereby exceeding the recommendation of the Comprehensive Plan and future land use designation, and also diverting any future attempts to divide it further. She advised they only had one opposition from all of their eight neighbors on Porcher Road.

John Isella stated he owns the property immediately to the east of Linda and Alan Moros; and he fully supports their plan to divide the property in two. He stated he looks forward to having them for neighbors; he is going to build a house in the very near future; and he thinks their proposal to divide the three-acre piece in half will eventually be seen as very low density compared to what is likely to happen in the immediate neighborhood on Porcher Road and up the road on North Tropical Trail, so he supports the rezoning 100%.

Celia Williams, representing the North Merritt Island Homeowners Association, stated when this topic first came up, there were several residents who approached the Association who were in opposition; they all attended the meeting of the North Merritt Island Dependent Special District Board; and at that time, there were four adjacent residents who expressed opposition to the item, so she does not know where the number one came from. She stated maybe three of those people who had expressed opposition changed their minds, but they did not notify the Association. She stated they attended the NMI Board meeting and gave good reasons for their opposition; and the main reason was because it was not commensurate with the land that they had purchased. She stated many of them had purchased land in a similar time period and are developing homes on 2.5-acre lots that are zoned AU; and they did not want to see a precedent set for properties of this nature being broken up, even if it was according to the Comprehensive Plan, which many people who are in opposition have started to doubt, herself included. She stated the Comprehensive Plan needs some revision; and that is not happening at this moment; but for the future, there have been several problems on North Merritt Island with flooding, traffic, and the capability of the schools to absorb extra students that will come with the increase in density. Ms. Williams stated they are in support of the residents who approached earlier in opposition to the zoning change request; it sets quite a precedent; there are a lot of acres on North Merritt Island that are currently zoned AU, some with homes on them already; and if that precedent is set, then the Board is going to have a lot more requests coming down the line, which will seriously impact the rural nature of North Merritt Island.

Richard Young stated he has a map from the Property Appraiser showing the size relationship of the parcels between Porcher Road and North Tropical Trail; and most of the parcels there are relatively the same size. He stated when the Moros property was purchased in September 2003, it was devegetated; that was a bit of a hardship on him because he purchased property with the expectation of using it as a grove; his property is part of a 24-acre grove; and he owns the pond and irrigation. He stated there were no prior agreements, so it was their right to devegetate; but it puts a hardship on him because he operates a functional wholesale grove, and part of his land is in the pond; and with the County’s current five-acre requirement, it puts his three acres at risk of not being able to use the agricultural zoning for his grove. He stated he is not a supporter of agribusiness because it puts small grove owners out of business; he has his acreage and the Bailey’s three acres behind him that are currently connected to the pond for irrigation; and he needs to work with the Baileys to come up with a way to irrigate and continue to use his pond for support of agriculture. He stated several things came up at the North Merritt Island Dependent Special District Board meeting; the proposed subdivision of the lot into two lots is not compatible with the area surrounding it; the primary reason the North Merritt Island Board was formed was to preserve the rural nature and character of the area; and this request is not consistent with the character of the surrounding properties. He stated at one time the number one priority was to protect the future development and characteristics of what they want on North Merritt Island; and that is larger homes on larger lots, not smaller lots and higher density. He stated that is what he and his neighbors built; and they are hoping that the Board will continue that in the neighborhood.

Commissioner Pritchard requested Mr. Young point out his lot on the map; with Mr. Young pointing out his lot. Commissioner Pritchard inquired where is the pond; with Mr. Young responding it is in the front, sheltered by two rows of orange trees and surrounded by wax myrtles so it cannot be seen from North Tropical Trail; and it is approximately one-half acre in size. Commissioner Pritchard inquired what does the pond have to do with the zoning request off Porcher Road. Mr. Young stated the pond is in support of agriculture; when he purchased the property, there were 24 contiguous acres connected by the drip irrigation system; the pump is on the pond; the 24 acres adjacent to Courtenay Parkway use the irrigation system; and a wagon was put in for the irrigation of small trees in the Nesbit grove. Mr. Young advised with the devegetation of the Hill and Galuzzi properties, and also the Moros property, the irrigation system has been interrupted; there are no trees to irrigate any more; and therefore that agricultural perception of it being a functional grove is now being reduced.

Ms. Moros stated in terms of what Ms. Williams said about opposition at the last meeting, looking at the zoning map of Porcher Road, that is what she was speaking about; there was only one opposition, which was at the corner of Porcher Road and North Tropical Trail; and the rest of the opposition was from Mr. Young who lives off Tropical Trail, but is not adjacent to their property. She stated all of the rest of the owners who live on Porcher Road are in support of the rezoning; and that is including the neighbors behind them, the one who spoke this evening, the ones across the street, and the ones at the very end of Porcher Road and North Tropical Trail. She stated they are well within the requirements of the Comprehensive Plan; the future land use designation is for two homes per acre; she is asking for one home on 1.5 acre; and it is going to be a nice development.

Commissioner Pritchard stated across the street is EU-2 with one-acre lots; the other property on the northwest corner is also EU-2; then it goes down into EU; and then there is a clump between Porcher Road and Citrus Club and the lots are larger at three acres except for one little piece that is 1.05 acres that was carved out. He inquired if the idea of taking this portion of land and dividing it in half fits into the future land use and the Comprehensive Plan. Mr. Enos responded yes, it does; the Comprehensive Plan in that vicinity, north of the Citrus Club Subdivision is Residential 1, which would allow consideration of a maximum of two units to the acre, so RR-1 could be considered to be consistent with the Plan there. Commissioner Pritchard stated Ms. Williams brought up a point about the Comprehensive Plan being in doubt; there was a question about the compatibility of the Comprehensive Plan and how well it is working because in North Merritt Island they are having these issues; and inquired what is Mr. Enos’ take on that. Mr. Enos stated it is a matter of opinion; certainly Ms. Williams has her opinion; and he is not going to argue with her opinion. He stated the Comprehensive Plan is a legal document; the applicant is within her right to request this zoning classification; and the Board is within its right to look at the Comprehensive Plan as well as the character of the immediate area. Attorney County Attorney Eden Bentley advised there is a difference between the future land use map and the written policies of the Comprehensive Plan, which direct the Board to look at the character of the area; so it might be consistent with the map, but not be consistent with the Plan as a whole. Commissioner Pritchard stated he is also looking at an area in transition; north of the one acre, it says AU; and that is the FIND site that is going to be used for the dredge material out of the waterway; then there is a massive buffer to the right of John Isella’s property; there is wetland that has never been developed on; and in the upper left on the map, there are one-acre homesites that probably will have something going in there in about five years. He stated then there is Treasure Lagoon, so there is a clump of area that is AU with fairly good sized properties with the one exception of the 1.05 acres on Tropical Trail; and then there is a request to go a little smaller on this one piece by the applicants. He inquired if they go to this next size zoning and increase in density by one, can it be revisited at a later date to go even smaller. Mr. Enos responded certainly, as low as two units to the area under the Comprehensive Plan, and more than that if the Board amends the Comprehensive Plan. Commissioner Pritchard inquired is there any type of binding development plan that could be instigated that would eliminate that potential to keep it at the size it is going to; with Mr. Enos responding no, even with a binding development plan, at any time a property owner can request amendment to the zoning process; and the Board sees that on occasion when it gets requests for amendments to binding development plans. Commissioner Pritchard stated he likes the agricultural look of it; he sympathizes with the applicants wanting to reduce the size of the property; he knows what is going on across the street; but the compatibility of the neighborhood is what it is and they are on much larger lots. Commissioner Pritchard stated making this reduction is not consistent with what the surrounding neighbors have; and while he can empathize with the applicants, he does not think it is appropriate for this location regardless of what is going on across the street. He stated there are neighbors with larger parcels and they would like to have those larger parcels remain.

Motion by Commissioner Pritchard, seconded by Commissioner Scarborough, to deny Item IV.D.4. Motion carried and ordered unanimously.

The meeting recessed at 10:09 p.m. and reconvened at 10:18 p.m.

Item IV.D.5. (NMI40705) Anthony La Court’s request for CUP for Alcoholic Beverages for On-Premises Consumption in a PIP zone on 5.94 acres located on the southwest corner of North Courtenay Parkway and Duval Street, which was recommended for denial by the North Merritt Island Special District Board.

Chair Higgs stated there are 30 cards submitted on the item; and recommended designating spokespeople while the Board proceeds with the next hearing. Commissioner Colon concurred with the need to designate spokespeople.

PUBLIC HEARING, RE: ORDINANCE ESTABLISHING INSTITUTIONAL ZONING
CLASSIFICATION

Chair Higgs called for the public hearing to consider an ordinance establishing an institutional zoning classification. She stated if staff would write in language that would exempt existing churches, that might take care of the problem; and it would allow people to go home before the upcoming three-hour discussion.

Zoning Official Rick Enos stated the language on page 35, paragraph C provides an exception for preexisting uses; and suggested adding into the first sentence where it says, “where the property was developed as an institutional use as described in this section prior to the effective date of this ordinance, the above location standards shall not apply, the words “and intensity limitations” after “location standards.” He stated that would exempt existing churches from the traffic generation limitations.

Commissioner Scarborough stated that is probably fair because the churches did not know the rules; they have commitments; and to do otherwise will create some very strange scenarios. He stated this makes sense; and expressed concern about the time period for something to get from the church secretary, to the minister, to an officer, to an intelligent dialogue. He stated the Board is doing the right thing.

Motion by Commissioner Scarborough, seconded by Commissioner Pritchard, to include the words “and intensity limitations” after “location standards” on page 35, item C. Motion carried and ordered unanimously.

Chair Higgs stated this would exempt the location and intensity on existing churches; and inquired if anyone has a question on that or is there anyone to speak on the proposed ordinance.

Toxey Hall, representing Merritt Island Presbyterian Church, read aloud a letter written under the direction of the Elders of the Church, “To the Honorable Commissioners, Be it known to the Brevard County Board of Commissioners that we the undersigned Elders of Merritt Island Presbyterian Church of 600 South Tropical Trail on Merritt Island, Florida held a meeting on the evening of August 3, 2004 to discuss the proposed zoning ordinance change described in the attached notice of public hearing to take place on Thursday, August 5, 2004 at 5:30 p.m. The nature of our meeting’s discussion centered on the question, how might the adoption of the proposed ordinance impact out particular church and that of other Christian churches? After considerable discussion of the question, it was by consensus without any qualifying objection that we submit this letter requesting that the Brevard County Board of Commissioners vote in the negative, and therefore not adopt the proposed ordinance as it is presented. We acknowledge and it is clear that the mounting vehicular traffic pattern pressures have become an important and urgent need and issue for the voting public and hence an important issue for the Board to address. With all due respect, however, we feel that the proposed zoning ordinance as it is currently framed for adoption, compromises existing boundaries between issues of State and issues of religion, and opens the possibility to conflicts that go beyond that of property usage. As a Christian church among the religious community of our County, we seek to be a good citizen who respects the rights and privileges and the common good of all. In fact as a Presbyterian church in particular, the historical record shows that we seek to teach and demonstrate principles of good citizenship in all our actions. By the same token we believe and value a concept of mutuality were the rights and privileges of the church be honored and given all due respect, acknowledging that the work of the Brevard County Board of Commissioners is multi-faceted and addresses a broad range of needs and interests. We reiterate our concern over these proposed changes, and pray that God’s wisdom may guide the Commissioners as they make this important decision.” He stated the letter is signed by the Pastor and 11 Elders, and was sent to the Board by certified mail. Mr. Hall stated Americans live in a peculiar period of history in the sense that Christianity and Judaism and their ethical foundations are under attack from a broad spectrum of antagonists ranging from secularists who would like to expunge all visibility and influence of religion from public life; and to some extent they are aided by honest believers for whom secular agendas trump faith to another extreme, which is a murderous international conspiracy bent on annihilation of all religion other than a narrow interpretation of their own faith. He stated in this environment it is neither just nor wise to expand at any level of government, regulations, which suppress or inhibit the growth of churches; and it is in a sense of solidarity with all churches that he states his opinion.

Chair Higgs stated the Board has the opportunity to go ahead with the ordinance with the additional language.

Commissioner Colon stated the motion will solve some other problems; and inquired about phase 2. Mr. Enos stated it is not just churches but all existing institutions in this classification; and the Board can direct that this ordinance come back at some time in the future. He stated if adopted the way it is being suggested and the Board does not deal with it again, then all existing institutions would never be regulated by this ordinance.

Commissioner Scarborough stated it is important to understand if there is an existing church, the ordinance does not apply to it; and it is just so they can direct new churches where they can have their traffic move without conflict with their neighbors. Chair Higgs stated it is religious institutions and other institutions. Commissioner Scarborough stated it is looking to the future; it is not retroactive; and that way if a congregation is committed to a certain place, it can expand without having any restrictions; but there is also a responsibility to the community to make sure that churches do not grow in a capacity in the wrong place in a new location that would be adverse to the community.

There being no further comments or objections, motion was made by Commissioner Scarborough, seconded by Commissioner Carlson, to adopt an Ordinance amending Chapter 62, “Land Development Regulations”; Code of Ordinances of Brevard County, Florida; amending Section 62-1102 to add new or amend or delete obsolete definitions of certain institutional uses; amending Sections 62-1255, 62-1331, 62-1332, 62-1333, 62-1334, 62-1334.5, 62-1335, 62-1336, 62-1337, 62-1338, 62-1339, 62-1340, 62-1341, 62-1342, 62-1343, 62-1344, 62-1371, 62-1372, 62-1373, 62-1401, 62-1402, 62-1403, 62-1405, 62-1481, 62-1482, 62-1483, 62-1511, 62-1512, 62-1543, 62-1544, and 62-1572 to remove certain institutional uses from various low-intensity zoning classifications and update obsolete nomenclature; amending Sections 62-1831.5, 62-1832, 62-1836, 62-1841.6, and 62-1906 to update obsolete nomenclature; renaming Section 62-1902 as 62-1826, 62-1908 as 62-1825, 62-1917 as 62-1831.3, 62-1935.8 as 62-1836.5 and 62-1944 as 62-1831.4; amending said sections to establish conditions for certain institutional uses; creating Section 62-1573 to provide for an institutional use zoning classification and condition under which low-intensity institutional uses may be permitted; deleting certain conditional use permits for institutional uses in Section 62-1919, 62-1919.5, 62-1922, and 62-1935.5; providing for conflicting provisions; providing for severability; providing for area encompassed; providing an effective date; and providing for inclusion in the Brevard County Code of Ordinances, as amended. Motion carried and ordered unanimously.

Item IV.D.5. (continued)

Commissioner Colon stated seven speakers have been designated from each side; and those in support of each side will stand when asked.

Attorney Kevin Markey, representing the applicant, stated they are seeking a Conditional Use Permit for On-Premises Consumption of Alcohol; and he will provide an overview, talking about the site conditions and what they perceive to be the hot button topics and demonstrating that the applicants meet the criteria necessary to be entitled to their CUP. He stated the project is already permitted and underway; it is approximately a six-acre project consisting of three freestanding buildings; the applicant seeks to occupy part of one of the buildings; and the space would be approximately 10,000 square feet. He advised of buffers and a conservation easement binding to the current site plan; stated it will stay in the current vegetative state forever; and just south of that will be a dry retention area, so there will not be standing water to act as an attractive nuisance for children or other people. He stated there will be a six-foot wall along the boundary between the project and the neighborhood to the west; there are approximately 200 parking spaces, so parking should not be an issue; and the building will be a multi-function facility principally devoted to a billiards establishment. He stated the folder contains a floor plan, which indicates the presence of approximately 24 pool tables; they intend to employ 15 to 18 persons; and it will be owner-operated. He stated Mr. Granger is currently the Manager of Ground Operations and Security for United Space Alliance at the Space Center; and he has a top secret security clearance. He stated this is not going to be a smoky bar with a couple of pool tables; it is intended to be an upscale establishment with approximately $1.5 million invested, which includes the startup, operating, and improvement costs and budget for building acquisition; and there is the expectation of providing the patrons the opportunity to have a beverage should they choose to do so. He stated at the P&Z meeting he perceived several general hot button topics; and one was traffic. He stated there was some concern expressed about drivers having too much to drink coming to or leaving the establishment and that the school bus pickup and drop-off site was located nearby; and pointed out the school bus site on the map. He advised the site plan contemplates two deceleration lanes on Courtenay Parkway to enhance traffic flow; there is no need for people to come to a dead stop on SR 3 and then turn into Duval Street; and the applicant is willing to install whatever signage is necessary and speed bumps on Duval Street, if necessary. He noted the County calculations indicate that the change in traffic will be less than 1% of its current volume. He stated there were also some comments and concerns expressed about potential nuisance activities such as the type of people who might frequent a place such as this as well as the proximity to the neighborhood and the children in the neighborhood; the facility is one-half mile away from the Sheriff’s office on North Merritt Island; there will be indoor and outdoor digital surveillance cameras at the facility; there will be door security at all times; and his clients are willing to pay for and erect a covered pavilion for the bus stop for the children to be out of harm’s way as well as pay for a crossing guard to work the school bus pickup and drop-off hours during the school year. He stated the project is compatible with the area; and the staff comments indicate the North Courtenay frontage is largely industrial and warehouse. He compared the project to the Savannahs Golf Course, which is a County project located nearby where one can go golfing and can choose to have a beer afterward or a bowling alley where one can choose to have a beer at the conclusion of a match. He stated the fact is the billiards hall is going to be there; and the narrow question before the Board is whether they have demonstrated an entitlement to the conditional use permit.

Rochelle Lawandales requested she speak in rebuttal. Chair Higgs stated Ms. Lawandales will have five minutes at the end.

Commissioner Colon inquired if Chair Higgs explained that the applicant will get five minutes. Chair Higgs stated the applicant in each of the cases gets ten minutes to start, and five minutes in rebuttal.

Everette Stephens, President of the Sunset Groves Homeowners Association, submitted a petition; and stated he is representing himself as well as a lot of the people who submitted speaker cards. He stated the neighborhood is up in arms about this entire circumstance; and they do not want anything to do with it. He stated when they first heard about the rezoning, they had a couple of meetings, drafted a petition with most of the concerns of the neighborhood, and sent it out for signature; the number of homes in the neighborhood total 46; the number of families signing the petition in the neighborhood was 38; the number of families not signing was eight; and of those eight, six were not available and two were not interested in signing. He stated there are 55 children in the 38 homes; 30 of them will be using the bus stop on the corner; and the total number of signatures they got out of Sunset Groves is 64. He stated there is a church around the corner, Calvary Chapel; and they signed a petition also with 21 signatures stating they did not want this. He stated they think this type of establishment will greatly increase the number of impaired or intoxicated drivers in and out of the general vicinity of the neighborhood; with the school bus stop located at the corner of the lot in question, it creates an unsafe condition for the children; and the establishment will detract from the rural nature of North Merritt Island, and will have a negative impact on the quality of life, the established character of the surrounding property, and the sanctity of the residences in Sunset Groves. He stated noise levels will be increased greatly; it will affect the safety of residents and increase traffic on SR 3; and they are concerned they will have a decrease in property values. He stated the establishment will adversely affect two churches and a gymnastics business in the area; and it will invite and entice the presence of an undesirable element. He stated Sunset Groves wants nothing to do with it; they moved to the area for peace and quiet; and this type of establishment does not fit within the neighborhood. He stated the biggest concern is that today it may be one thing, but he is not sure what it will be when it gets set up; and if one dresses up a pig like a cow before sending it out in the field, once it gets in the field, it will still be a pig.

Celia Williams, representing the North Merritt Island Homeowners Association, stated she did not receive a single call that was in favor of the CUP and probably received ten calls that were in opposition. She stated the board members of the Homeowners Association discussed this briefly and came to the consensus that they would support Mr. Stephens and the Sunset Groves Homeowners Association as they came up with good reasons to oppose it.

Commissioner Colon stated each side was supposed to ask who was in favor of the action and who was against it to stand up. A group of approximately 25 people stood in opposition to the item.

Brian Lawrence stated he is the American Pool Players League Operator for Brevard County; his business entails the formation of eight-person pool teams, similar to bowling teams; and the teams are typically composed of old friends or people wanting to meet new friends as well as husbands and wives, work associates, etc. He stated to give some idea how popular the sport of billiards has become, there are approximately 2,000 active members in the County; they play on a weekly basis year-round; and today’s pool enthusiasts are demanding that their billiards centers be roomy, clean, upscale, and furnished with the best equipment. He stated the Diamond Zone meets and exceeds in all categories; today’s pool enthusiasts are demanding that their billiard centers provide a safe environment not only for themselves but for their families; it has become the choice of recreation for entire families; and contrary to the pool hustlers of old, today’s pool enthusiasts are hardworking and honorable citizens. He stated pool players are police officers, engineers, mechanics, doctors, truck drivers, school teachers, and just about anybody but pool hustlers; in 1991 pool became the number one participation sport in America; and its popularity continues to grow at an outstanding rate. He stated the growing participation by ladies has not hurt the tremendous image transformation that pool has gone through over the years; it is now as common to take ones girlfriend or wife to an upscale billiard establishment for an evening out as it is to go to a movie. He advised he has known Mr. and Mrs. Granger personally for almost ten years; their impeccable character is indisputable; and both have enjoyed long and successful upper management corporate careers. He stated because of his league involvement, he has been privy to this project since its inception; he is convinced the more the Board becomes aware of the Diamond Zone, the more comfortable it will be that it is not the type of place that would be considered undesirable. He stated enabling patrons of the Diamond Zone to enjoy a cocktail or a beer while playing a friendly game of pool is as harmless as enjoying a glass of fine wine with pasta in a restaurant. He noted he, his wife, and children are long-time residents in the County; and stated he would have no problem if the Diamond Zone were to open in his own upscale neighborhood.

Ed Wilson stated he is the Director of Security for a major aerospace company in the County; and he is proud to say he is one of the undesirable elements who will frequent the establishment when it opens. He stated the purpose of his appearance tonight is to share with the Board and members of the North Merritt Island Homeowners Association information concerning the character of Bob and L. J. Granger, who are building and will be operating the Diamond Zone Billiards Sports Bar; and this information is in direct response to members of the homeowners association who expressed concern about the Grangers’ character at the P&Z hearing. He stated he has known the Grangers for over 20 years; and it would be difficult to find finer people from either a personal or professional standpoint. He stated Ms. Granger has over 27 years in marketing, merchandising, and service industry for multiple national companies; she advanced to the position of national director with two of the organizations and had management oversight responsibility for over 1,400 employees. He stated he and Mr. Granger worked together for over 25 years; Mr. Granger has over 33 years in the law enforcement and security profession; and he is currently in a management position responsible for critical aspects of security for the nation’s shuttle program. He stated Mr. Granger is vice president of Councils for the American Society of Industrial Security International, which is the largest security society in the world; and he is currently a candidate for the board of directors. He stated if he had a couple of hours he could fill them up with Mr. and Mrs. Granger’s accomplishments, awards, and contributions to the community; and he hopes this summary is sufficient to reflect that their character and integrity are above reproach. Mr. Wilson advised what that means in terms of their establishment is that they have the experience and capability to establish and maintain a completely professional business environment.

Steve Phillips stated their development is located just off SR 3; they have one street, Duval Street, that comes directly into the neighborhood and Biscayne Drive is teed off Duval with a cul-de-sac on both ends, which means there is only one way in and one way out. He stated the exits that come out of the new mall area come out in a blind spot so any car coming out of the area would already be two-thirds of the way onto Duval before they could see someone coming up the street, so that is an issue of contention. He stated they got an accident analysis from the County within one mile of the area, from Grant Road to Hall Road over a period of three and one-half years; there have been 77 mishaps, 51 of which were in the same time period during which the establishment will be open; that is 66% total; and that means it is a very congested area. He commented on KSC traffic, peak traffic hours, and students getting off buses to come home from school. He stated this is not a good fit for the neighborhood; and requested the Board deny the request.

Ken Aguilar stated he is usually with the homeowners side, but today he is taking the other side. He stated he has been playing pool since he was a youngster; and he feels bad about stereotypes. He commented about breaking the image of people who go into poolrooms or billiard parlors being undesirables, the movie about trouble in River City, and concern about what is going into a neighborhood. He stated some people have dreams; they want to bring in businesses; and these people are of fine character. He stated if he goes into a restaurant he can decide to consume or not consume a beverage; he is a non-drinker; a friend of his who is a pool player also does not drink; but people should have that authority and should conduct themselves right. He stated pool has become a family thing; he lived on Merritt Island for 11 years, but recently moved; and he was with Commissioner Pritchard when he came down the chute of a sliding board to open a park as well as working to do landscaping. He advised of he and his wife playing in pool competitions; stated he has a pool table in his house; and he hopes the Board will consider this and not stereotype the organization. He stated the applicants have offered to do some things for the community that will be helpful; and he hopes the Board gives them strong consideration.

Bob Granger stated he and his wife L. J. are pursuing their dream to open the nicest billiards center in Central East Coast Florida; during the NMI Special Board meeting, they did not get a fair chance because there was a predetermination by the homeowners that he was opening a dirty little bar with some pool tables; but that is not the case. He stated the primary customer base is going to be the leagues and the American Pool Players Association; and they have had significant interest from the pro tours wanting to come to Merritt Island to play. He stated someone mentioned petitioners earlier; after the prior meeting, he asked the pool players to distribute some petitions; and submitted petitions. He stated they did not have a lot of time to pass out the petitions; they did this about a week ago; and the signatures cover all walks of life. Mr. Granger stated they have signatures of doctors, school teachers, engineers, even some people who are running for political office on the petitions; there were almost 900 signatures; and there were 400 signatures from District 2, almost 200 from District 1, and over 200 from District 4. He noted there was not a lot of penetration in South Brevard but District 3 had 43 signatures and District 5 had 32. He stated over 60 signatures were from North Merritt Island homeowners, many of those paying members of the Homeowners Association; so the representation that homeowners are totally against this is not accurate. He requested those in support of Diamond Zone Billiards stand; and approximately 25 people stood in support. He stated after the prior meeting, they attempted to make contact with the North Merritt Island Homeowners Association; they called the president of the Association on July 27, 2004 and asked to get some time on a future agenda; the individual said they were having a meeting on August 2 and that she would see if they could get on the agenda; and he received a call the next day saying they did not want to hear them as the decision was already made and it was a done deal. He advised a copy of the newsletter for the North Merritt Island Homeowners Association indicates there were no speakers on the agenda for August 2, so they could have been given time to plead their case.

Galen Link stated he is on the other side for a change as normally would have been more for upscale business to be brought in, although he does not know what an upscale pool hall looks like because he has never seen nor been in one, and he has been in pool halls all over the world. He stated about four years ago he called former Commissioner O’Brien about wanting turn lanes there; that was before there were three accidents at that location; but there was never any funding for it, so he is glad to see this come for that reason. He stated he likes the idea of a beer now and then or an alcoholic drink of some sort; but when they put it all together and open a pool hall, he does not know what will make it stay a pool hall. He inquired how can the Board guarantee it will stay a pool hall; and stated when he puts alcohol and a pool hall together, he comes out with a lower class establishment even if there are TV cameras there and people with suits. He commented on the hours of operation and people in the neighborhood trying to sleep; and inquired how can the Board justify it. He inquired why the applicant does not put the establishment in his backyard; the neighbors do not want it there; there are 46 houses backed up to the property; they will be listening to the noise until 2:00 a.m.; and he does not think it is fair to the 46 homeowners. He stated if they were going to open a Chili’s, he would grant it in a minute; and inquired why they do not open a pool hall and take the alcohol out of it. He stated he does not think they are going to make it; inquired why they are not putting it some place else such as in the empty buildings in Merritt Island; and why does it have to be in his backyard. He reiterated his question regarding the establishment remaining a pool hall and his desire for a restaurant and not a pool hall.

Peter Dilecce stated he received notification that he is within 500 feet of the establishment; but the meeting is not about the pool hall; it is about the CUP for Alcoholic Beverages. He stated all the people who stood up in support do not live in the neighborhood; this is his neighborhood; and he is a young parent who is concerned for the safety and security of his children. He stated he has two children he is concerned about; and requested Nicole point out where her bus stop is supposed to be. He noted there are two entrances that go into Duval Street. A girl pointed out her bus stop on the map. Mr. Dilecce stated Nicole will be walking on Courtenay Parkway, which is already dangerous; but now she will be walking in front of the property in question and down Duval Street. He stated he believes this will devalue his property; they know there will be intoxicated drivers; he is also concerned about intoxicated pedestrians who may have their keys taken away from them; and inquired where will those people go. He stated they may wander the streets and make their way back to Duval Street; some of them may make it back to Biscayne, which is his neighborhood and has two dead-end streets; and he is concerned about someone knocking at his door wanting to come in. He stated a drunk is a drunk no matter what their stature; and when someone is intoxicated, there is no discrimination between one person or the other. He stated at the previous meeting Mr. Granger alluded to the fact that he would be open from 1:00 p.m. to 2:00 a.m.; and he is concerned about noise. He advised the former bartender who spoke to the Eagles Club item said what happens after a bar closes; and commented on how the ABC Liquor Store gets people who pass out in their parking lot after wine tasting session leave the property. He stated he is concerned about such people ending up on his property at night. He commented on fighting in bars and pool halls, high traffic congestion, and problems with traffic converging at the Barge Canal. He stated they do not have a problem with a business establishment; but where there are people who may be impaired, that could cause a problem in the traffic situation. He stated the applicant has alluded to closed circuit TV and having tournaments; the tournaments may bring in many people who would overflow the parking and encroach on the streets; and requested the Board deny the request.

Commissioner Pritchard inquired if Mr. Dilecce lives on Biscayne; with Mr. Dilecce responding yes. Commissioner Pritchard inquired if his daughter walks down to Grant Road; with Mr. Dilecce clarifying it is his neighbor, not his daughter. Commissioner Pritchard stated she showed the route down to Grant Road and then up Courtenay Parkway; and inquired where is the bus stop. Nicole pointed out her bus stop on the map. Commissioner Pritchard stated it is on Grant Road; and inquired if Nicole walks from her house to Duval and then down Courtenay Parkway to Grant Road.

Bob Wilcox stated he lives on Biscayne Drive; and most of his points have been made. He stated this is about alcohol consumption and how it does not fit in the neighborhood. He stated people are going to be drinking at this place; they are going to come out and get in their cars; and they are going to come down his street, which is going to endanger the children. He stated it is a quiet street, but is not going to stay that way if this establishment comes in and particularly if they serve alcohol. He stated there is going to be vandalism; people who drink throw bottles; they drink outside; and historically there is damage caused by people who drink. He stated they do not want it in their neighborhood; it does not fit; and requested the Board say no and keep the neighborhood safe.

Linda J. Granger stated she goes by L. J.; and she would like to explain what kind of establishment they are opening. She stated people may have traveled the world and seen some pool halls, but in the past five years there has been a tremendous trend in the billiards industry. She stated there are 40 million pool players worldwide; and last year pool was featured at the World Games and the United States won. She stated she would like to take the Board through the plans for the building, the interior, and what they are going to do; and then she would like to address some of the issues that have been presented. She stated when people arrive at the facility, they will find ample parking; there will be over 195 parking places; and when they get out of their cars, it would be a good time to start smiling because they will be on camera surveillance in the parking lot. She advised the surveillance will be 24 hours a day, 7 days a week to insure the safety of the visiting patrons and guests; people will be greeted at the door by a member of their team; and they should not be surprised if they have to show ID. Ms. Granger stated there will be no neon lighting in the front of the building depicting any kind of alcoholic beverage sales; it is a upscale billiards center; once people enter, they will begin to walk up a gentle slope leading to the railed spectator viewing and service area located in the center of the building; it will be two feet higher than the rest of the floor space; and this is to allow for guests and players to spectate over the playing tables. She stated there will be beautiful comfortable furniture, carved wood leaf blade ceiling fans, and polished granite tables and bar tops; and presented an example of the granite. She stated it is not cheap and not something one would see in a typical pool hall. She stated as people go to the service counter, they will be greeted by the uniformed bartender who will be ready to serve them their beverages of choice; and they can also get a set of balls, a rack, and be assigned a table. She stated people will have the choice of smoking or non-smoking; and when they proceed to the table, they will be playing on Brunswick Gibson tables, which are some of the finest in the industry and retail for over $9,000 each. She stated the lights over the tables will be pearlized metal shade lighting; she could probably save a lot of money if she let the vendors put their lights in, but she is not going to do that because this is an upscale environment; and a local artist will be responsible for painting beautiful artwork on the walls for everyone to enjoy. She stated while in the house, people will continue to be under camera surveillance; this is to insure the safety of all the guests; and the only exception will be in the restrooms where there will not be cameras. She stated there will be cameras positioned throughout the building to capture people making spectacular shots or simply having fun with their friends, and those shots will be put on a projection screen for everyone to enjoy. She stated if people prefer, they can play darts in the designated area where there will be a wood floor similar to that in a bowling alley with toe markers for the dart leagues; and there will be spectator seating with comfortable chairs and tables and many big screen TV’s where people can watch the pool players or NFL ticket. She stated the restrooms will have beautiful tiled fixtures; and there will be no cameras in the restrooms. She stated what people will not find in the establishment is a dirty smoky environment; they will have air filtration and ionization systems working to clear the air 99% pure every 20 minutes; and besides the 30-ton air conditioner, they will have an additional five-ton unit installed to pump in fresh air from outside. She stated their service approach will be fast and friendly; they will promote special events for holidays; they have room for business parties and family functions; and she has already been asked to sponsor and hold a wedding reception. She stated they will have visiting professionals and amateur players; they will offer pool lessons and form new teams for both pool players and dart players; and anyone who wants can come to learn the game. She stated this will be a fine billiards establishment with the finest equipment, service, cleanliness, and safety offered; and as with other fine establishments such as bowling alleys, restaurants, and golf courses, she wants to be able to offer her customers a beverage of choice. She stated she appreciates the Board’s consideration.

Murphy Johnston stated he lives directly behind where the business is going to be; he has been living there for eight years; he has seen people come and go; and he is not for having whisky or beer as it deters a person’s mind. He commented on seeing people who were so drunk they could not remember anything; and stated he used to pull in such people when he was on Shore Patrol. He stated it is not good for the children; he raised his children in church; and it is a thing of the past for there to be no animosity against a man who shows up drunk. He stated he wishes the Board would think about this because it is serious; and there are too many drunks on the streets today.

Rochelle Lawandales stated she is not sure everyone realizes the zoning is Planned Industrial Park (PIP); the lands along the frontage area, both north and south and extending approximately a half-mile are PIP, which allows for a lot of various uses that may have more questionable compatibility issues adjacent to homes than a billiards house; and anything that is allowed in BU-1 or BU-2 such as boat building and recovered materials reprocessing are allowed in PIP. She stated in her mind a billiards house in a shopping center that is going to serve food is much more compatible than the other types of uses. She advised the Moose Lodge, Pizza Mia, King’s Duck Inn, Mr. Ni’s, and the Savannahs all serve alcohol and food; and they have been serving the family community for many years in this area. She stated the facility is an enclosed building; it will be soundproofed and nothing will be heard; and the nearest house is 480 feet away. She stated there is a 130 to 150-foot buffer between the rear of the developed portion of the property and the rear of the subdivision; and the stand of trees and wetland preserve will certainly be a sound barrier so no one will hear anything going on inside the 10,000 square-foot building. She stated $1.4 million is a large investment in this area; and everyone needs to recognize this is not Joe’s Pool Hall of days before. She stated she respects and understands the neighbors; there is a little bit of fear in the unknown; because of some of the existing places around the neighborhood or elsewhere, they may have some trepidation; and recommended they compare what is proposed with what could go into PIP. She stated if this was a restaurant with 50 seats, they would not even have to ask for a CUP; this is an upscale establishment; it will be a welcome addition and serve the neighborhood; and it will continue to increase values. She stated the Grangers do their part to support local activities and anything to do with the building community. She stated she would be glad to answer questions.

Commissioner Pritchard stated one of the questions that was posed early on was that the creation of an establishment like this would have a negative effect on property values in this neighborhood; and inquired if Mr. Enos is aware of anything like that and the possibility of that occurring; with Mr. Enos responding he is not sure he understands the question. Commissioner Pritchard inquired if there is a pool hall in a vicinity of a neighborhood, would it detract from the property values of the neighborhood; with Mr. Enos responding it is possible. Commissioner Pritchard stated in this situation there is PIP on both sides of the road, at the entrance to the neighborhood there are going to be buildings of a specific design and they will be uniform; and the property is located on a side that would not been seen from Duval Street. He inquired if that would have any effect on the neighborhood; with Mr. Enos responding the more it is buffered from the neighborhood, the less effect it would have. Commissioner Pritchard stated people were saying “not in my neighborhood”; and inquired why not put it someplace else such as one of the vacant storefronts on Courtenay Parkway. Ms. Granger responded they have looked at other storefronts; they chose this location so they could have a new building designed to specifically meet their expectations; and they plan to own the building. She advised unfortunately many of the areas that are available on Merritt Island are part of a strip mall and not available for sale; and the renovation process would be far more than the numbers they have talked about. She stated there is no freestanding acreage anywhere else that they could find that would be comparable, with easy access from the tourist industry, SR 3, and the demographics of the pool players.

Commissioner Pritchard stated he has known a lot of the people in the audience for years; he has seen Ms. Williams perform; and he would not be advocating something that he did not think would be all right. He stated there was a billiard emporium in his neighborhood in Ft. Lauderdale called the Cue Stick Lounge; this was in the early 1960’s; it was a beautiful place; it was age 21 and over; and it was a beautiful well-maintained place. He stated it was not a pool hall; he has been to pool halls; and he is no Carrie Nation as he said before. He stated although he does not tend to hang around the places like he did when he was younger, he does know the differences; he had many good recommendations for L. J. and Bob as to their character; and he respects the people who are making those recommendations. He stated he does not think they are getting a fair shake; and that is his concern. He stated he understands the concerns, but there could be a restaurant with drinking and there could be alcohol sales along with the drinking; and he does not think there would be the same level of responsibility from those places as from what the Grangers are planning to do. He noted he saw Willie Mosconi play; and it was quite a charge, so he has been on all sides. He stated he has lived in neighborhoods where there have been sleazy pool halls; he lived in a neighborhood with the Cue Stick Lounge, which was really nice; and he does not think the neighborhood has been provided with enough information as to what the Grangers are talking about. He stated he does not want to make a decision based on that tonight; and suggested the applicants meet with the people. He stated the Grangers were not given the opportunity to come back before the North Merritt Island Homeowners Association; they should have been given that opportunity; and he understands the concerns, but there is a way this can be worked out so that concerns can be alleviated. He stated for the young lady to have to walk as far as she does for a middle school bus is ridiculous; he lives on North Tropical Trail in River Oaks Plantations; that bus makes four stops for middle school children; apparently the young lady’s bus stop is on Grant Road; and if a bus can make that many stops for one or two children on each street, he does not see why the bus cannot swing into the young lady’s neighborhood. He stated it makes no sense at all for someone to have to take that kind of hike; so there are still things that can be worked out; and everyone will benefit. He stated the result may be that the neighborhood still does not like the project; the result from the Board may be that it is not going to be approved; but the applicants need that fair shake, and he does not think they have gotten it. He stated he spoke to someone earlier, and requested they read the book listen to what is said, and see what kind of people the Grangers are; they are not getting Hell’s Angels; there will not be that type of clientele; and nobody invests $1 million-plus in a business only to have it destroyed. He stated that is not what the situation is going to be; and he would like to table this item because he wants the neighborhood to know that it is more than just drunks leaving or arriving. Commissioner Pritchard stated a lot of people who are involved with playing pool are fine upstanding people; the neighborhood needs to give the Grangers the benefit of the doubt at this point; and they should talk to the applicants and alleviate their fears. He noted there are two entrances and exists to the area, so it is not just one; and he would like everyone to take some time and talk about it and come back on October 7, 2004.

Commissioner Carlson stated just for clarification they are already building the billiard hall, so it is going to be there with or without alcohol; but because the County has performance based zoning, issues such as noise and buffers, etc. are all included in the administrative side of things, so there should not be those kinds of issues. She stated she was reading about smoking and things like that; the comment was would they want to be a restaurant; and that was not answered in the minutes; but there was an issue about smoking. She stated smoking is going to be there because there is no food that is going to be served; and she does not quite understand that part. She inquired if it would be considered a public facility and would it be governed by the smoking ban. Attorney Bentley stated she does not know those rules. Commissioner Pritchard advised if less than 15% of the profit is derived from food, then there can be smoking in the establishment. Commissioner Carlson stated she knows Commissioner Pritchard wants to table the item and she has no problem with that; and inquired if the cameras will be the form of security or will there also be a security person on staff; with Mr. Granger responding security will be at the door. She stated understanding what Commissioner Pritchard wants to do, she agrees the applicants need a fair shake and perhaps the resolution is, since they are building anyway, to have the CUP come back after the community has an opportunity to see what kind of neighbor the establishment is going to be.

Chair Higgs stated she will support a motion to table; but what concerns her is while the applicants are building and the Board knows what they are proposing to do, she does not think the Board should ignore the fact that it is putting a CUP on property, which is different than saying this is nice and it will always be this way. She stated the Board needs to have that caution as it goes into discussion. Commissioner Pritchard stated he agrees but what he has seen in this type of establishment is there are not people falling down drunk when leaving it because there are so many cameras. Chair Higgs stated that is not her point. Commissioner Pritchard stated it is his point that it is possible to have alcohol at a place like this because quite a few players are serious about this and do not drink when playing. Chair Higgs stated she understands that; she understands what the applicants are putting there; but it may not always be that; and that is what she is cautioning about as the Board goes into discussion. She stated the CUP goes with the property; and the property may change hands. Commissioner Pritchard inquired about the liquor license; Chair Higgs stated the Board is not giving the liquor license; it is giving the CUP; the State gives the liquor license; and the ability to have a CUP goes with the property. She stated the billiard house may go out of business; it may be sold to someone else; and it may evolve into many things. Commissioner Pritchard inquired how does the CUP get taken from the property; with Chair Higgs responding the CUP would come back to the Board. Attorney Bentley stated the Board could put time limits on it or there could be certain instances where revocation could occur if there was a change in circumstances; but it would have to do with the property, not a change in ownership. Attorney Bentley stated change in ownership does not typically trigger it because the CUP runs with the land; and the Board is suppose to consider the character of the entire neighborhood, so time limits are a possibility. Commissioner Pritchard stated the Board can put a time limit on a conditional use permit; and it could be reviewed every three or five years, if the Board wanted to. Chair Higgs stated the reality is in normal circumstances, people will go into a business with business expectations and plans based on certain things; if she was investing in a business, she would want to know what she is going to be able to do with the business; and so time limits, such as five years, may not allow enough time to recover the investment and are problematic.

Motion by Commissioner Pritchard, seconded by Commissioner Carlson, to table Item IV.D.5 to the October 7, 2004 Board of County Commissioners meeting. Motion carried and ordered; Commissioner Colon voted nay.

Commissioner Scarborough stated earlier he mentioned the compatibility issue of the neighborhood; he asked about other alcoholic activities in the area; and requested staff provide that data when the item comes back. He stated PIP does not necessarily mean heavy industrial; and some PIP is so nicely done that people would want to live there.

PUBLIC HEARING, RE: ADMINISTRATIVE REZONINGS

Chair Higgs called for the public hearing to consider administrative rezonings, as follows:

IV.E.1. Section 36, Township 25, Range 36, Parcel 535, owned by Kew LLC, change from IU to PBP on 0.72 acre located on the north side of Viera Boulevard, west of U.S. 1, which was recommended for approval by the P&Z Board, and approved at the first public hearing by the Board of County Commissioners.

Commissioner Carlson stated the first three items are in District 4; most came back because they did not have a binding development plan; and one is coming back. Planner Todd Corwin stated the items on the agenda are the ones that had a binding development plan with them and the citizens in the community are satisfied with what happened in May. He stated the others did not have a binding development plan associated with them, and that is why they are here. He stated the ones with the binding development plan in the northern part of Holiday Springs at Suntree will be seen in September and October. Commissioner Carlson inquired if the ones before the Board tonight have no objections; with Mr. Corwin responding he has heard no objections.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to approve Item IV.E.1 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.2. Section 35, Township 25, Range 36, Parcel 757, owned by Viera Boulevard Joint Venture, Inc., change from IU to PIP on 2.11 acres located on the south side of Viera Boulevard, east of Holiday Springs Road, which was recommended for approval by the P&Z Board, and approved at the first public hearing by the Board of County Commissioners.

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to approve Item IV.E.2 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.3. Section 02, Township 26, Range 36, Sub. TGORV, Lot 4, owned by Carroll Distributing Company, change from IU subject to BCP to PIP subject to BCP except those portions of the BCP which are inconsistent with current regulations, which was recommended for approval by the P&Z Board, and approved at the first public hearing with additional language “to the extent possible, where not mandated by drainage or retention requirements, the 51-foot swale area will remain in a vegetated state.”

Motion by Commissioner Carlson, seconded by Commissioner Higgs, to approve Item IV.E.3 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.4. Section 20, Township 21, Range 34, Parcels 751 and 754 owned by Neil and Rose St. Pierre, change from GU to AGR on 21.52 acres located on the east side of Hatbill Road, south of SR 46, which was recommended for approval by the P&Z Board, and approved at the first public hearing by the Board of County Commissioners.

Commissioner Scarborough stated he has some notes; the AU is one unit per 2.5 acres; the AGR is one residential unit per five acres; and he and Mr. Enos spoke briefly about the significance as it applies to this parcel. Mr. Enos stated this is the result of a Comprehensive Plan change; the Plan designation is one unit per five acres; and that describes AGR, which requires a five-acre lot.

Commissioner Scarborough stated the property owner was under the impression it may be going to AU at one unit per 2.5 acres; there was some confusion; but they cannot go there under this scenario; and inquired if everything is in order with the property owner. Planner Todd Corwin stated he met with the property owners this week and explained it to them. Commissioner Scarborough inquired is everything in order now; with Mr. Corwin responding he explained that AGR is better than what they have now.

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

Item 5. Section 12, Township 26, Range 36, Parcel 259, owned by Rick Waelti, Jr., change from GU to REU on 3.41 acres located west of Waelti Drive, north of Wickham Road, which was recommended for approval by the P&Z Board.

Commissioner Carlson inquired if this is the item where the person owning the property wanted to go forward with an adult congregate living facility; with Chair Higgs responding no, that is number 6.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to approve Item IV.E.5 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item IV.E.6. Section 17, Township 28, Range 37, Parcel 764, owned by Bentley House, Inc., removal of CUP Z-9798 for Adult Congregate Living Facility, which was recommended for denial by the P&Z Board with direction to staff to bring the item back to the Board in six months.

Commissioner Carlson stated the owner wants to go forward with an adult congregate living facility and has requested the Board not remove the CUP. Mr. Enos stated it is being brought to the Board because the CUP has not been used; however, the property owners indicated to the P&Z Board that they intend to use the CUP; and the P&Z Board recommended giving six months to have a site plan put together.

Motion by Commissioner Carlson, seconded by Commissioner Colon, to deny Item IV.E.6 and direct staff to bring the item back to the Board in six months as recommended by the P&Z Board. Motion carried and ordered unanimously.

Commissioner Pritchard stated he has a request on behalf of the parties for the billiards emporium to bring the item back in September rather than October; and inquired if it can be scheduled for then and see what happens. Chair Higgs stated it is already table to October 7, 2004. Assistant County Attorney Eden Bentley advised there were many people present; and it could end up being a due process problem.

Upon motion and vote, the meeting was adjourned at 11:40 p.m.

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

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SCOTT ELLIS, CLERK
(S E A L)