The Board of County Commissioners of Brevard County, Florida, met in regular session on August 27, 1998, at 5:38 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Helen Voltz, Commissioners Truman Scarborough, Randy O'Brien, Nancy Higgs, and Mark Cook, Community Development Administrator Peggy Busacca and Assistant County Attorney Eden Bentley.

The Invocation was given by Commissioner Nancy Higgs.

Commissioner Randy O'Brien led the assembly in the Pledge of Allegiance.

REPORT, RE: AGREEMENT FOR SURPLUS MERCHANDISE

Commissioner Scarborough stated Dr. Al Koller, President of BCC North, was receiving certain materials from KSC; he was advised Brevard County had not entered into an agreement with the State of Florida; but he was later advised there was not a problem. He stated if there is a problem, he would like staff to resolve it so that entities within the County can continue to receive surplus merchandise from the federal government.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to direct staff to resolve the problem, if such problem exists, so that entities within the County can continue to receive surplus merchandise from the federal government. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: TABLED ITEMS FROM MAY 4, 1998 AND JULY 6, 1998 P&Z AGENDAS

Chairman Voltz called for the public hearing to consider items that were tabled from the Planning and Zoning (P&Z) Agendas of May 4, 1998 and July 6, 1998, as follows:

Item Z9805107. Port St. John Junior Chamber of Commerce, Inc., B. B. Nelson & Jack Moore's request for Small Scale Plan Amendment to change land use designation from Residential to Mixed Use District on the Future Land Use Map, change from GU and AU to BU-1 and CUP for Towers and Antennas (200 feet monopole on Block 1, Lot 2 only) on 7.97 acres located west of I-95 across the canal from the southern terminus of Homestead Avenue, which was denied for the Small Scale Amendment by the LPA, denied for BU-1 by the P&Z Board, and approved for the CUP for 150-foot lattice tower as amended by applicant by the P&Z Board; and was denied for Small Scale Amendment and zoning change and tabled for CUP for 150-foot lattice tower by the Board of County Commissioners.

Commissioner Scarborough suggested hearing from the consultant as the information may be important for the applicant so he can respond. Community Development Administrator Peggy Busacca advised Joseph DiPietro from CIS is present to provide a report, and then he can answer questions. Commissioner Scarborough stated that would be appropriate; and the County's position has to be put in the public record as this is new information. Commissioner Higgs requested Mr. DiPietro state his qualifications.

Joseph DiPietro, Director of Engineering of Communications Information Services, stated he has a Bachelor's Degree in Engineering from the University of Florida; and he holds an FCC General Class Commercial Radio/Television license. He advised he has been notified by the State that he passed, and will be receiving registration, but has not yet received his certificate. He stated he has communications/radio experience dating back to 1975.

Commissioner Scarborough inquired if Mr. DiPietro has provided similar services to other counties or municipalities regarding the placement of towers; with Mr. DiPietro responding he reviewed telecommunications applications for the City of Fernandina Beach and for St. Johns County; and the company he works with participated in the review and recommendations for tower siting ordinances for St. Johns County as well as Fernandina Beach. He stated he also worked in the cellular telephone industry as a design engineer in New York City, Tennessee, Puerto Rico and Argentina. Chairman Voltz advised the Commissioners are in receipt of Mr. DiPietro's report.

Mr. DiPietro stated there were two applications in the package he received from the County. Chairman Voltz requested they be addressed separately. Mr. DiPietro stated he reviewed the information provided; no telecommunications provider was indicated; and there was no engineering data to review to make a determination. He stated there is no one to be protected by the Telecommunications Act since there is not one of the individuals specifically protected.

Chairman Voltz inquired if a person who speculates by putting a tower, is not covered under the Federal Communications Act under tower siting. Mr. DiPietro stated he has the conference report on S632, the Telecommunications Act, from the House of Representatives; and what it indicates is that State and local governments shall not prohibit or have the effect of prohibiting placement, modification of personal wireless services; but if there is no one providing the wireless services, the County is not prohibiting.

Commissioner Scarborough stated the report has to be made part of the public record. Assistant County Attorney Eden Bentley advised a copy will be provided to the Clerk. Commissioner Scarborough inquired if Mr. Nelson received a copy; with Ms. Bentley responding yes.

B. B. Nelson stated he received a report today; normally information is required to be to the Board two weeks in advance in order to make a decision; Mr. DiPietro has not spoken to him about what he plans to do; and requested the item be tabled to the September, 1998 zoning meeting in order to give he and Mr. DiPietro time to meet and talk about what is planned. He stated one of his major consultants will not be able to attend the September meeting; and requested he be allowed to make a presentation.

Commissioner Cook stated the Board discussed applicants getting information five days ahead of time. Zoning Official Rick Enos stated staff just received the report today.

Mr. Nelson stated if Mr. DiPietro is going to report, he should talk to him about what he plans to do, although Mr. DiPietro is defending the report on FCC rules and regulations and RF; but there is a lot more to locating a tower than RF. He stated his consultant is George Henry Pittman; he is a retired airport executive with 50 years experience, 30 years in the military, 20 years in civilian aircraft and airport management; and he has over 7,000 hours of flying time, flying over 100 different types of aircraft. He stated Mr. Pittman was responsible for over 25 years, with four years of primary duty, investigating aircraft accidents; and so he knows a lot about airports, airplanes, flying, and requirements around an airport. He submitted Mr. Pittman's resume.

George Henry Pittman stated statistics show automobile accidents occur within approximately one mile of home; airplane accidents occur within 2.5 miles of an airport; and that is why it is important, wherever possible, for the air space around airports be kept as uncluttered as reasonable. He stated as a pilot, he would like to see nothing up there; but he recognizes that there must be towers to take care of today's communication and electronics needs. He stated based upon many years of aviation, the FAA established certain standards; they evaluate, when someone needs to put up a tower, whether it will meet the standards for height around an airport; and generally the height is limited to 150 feet above the ground. He explained how approaches to runways are done. He stated airports are inspected annually; the State must make an annual check to insure the approaches are not violated; and if they are violated, it is necessary to buy the air rights. He stated he was a pilot; pilots do get lost; general aviation pilots do not have extra aids to assist them; and advised of his experience in World War II. He stated if visibility is low, planes can be lower than 500 feet; law says the pilot of the airplane can decide what is safest for his airplane; if an airplane flies over your house at 100 feet, it is in violation and can be reported; but as the pilot is responsible for the safety of the aircraft, he makes the decision, although he may have to defend the decision. He explained why pilots may need to see the ground and the danger of towers to low-flying aircraft; and advised of his personal experience. He stated there are hundreds of airplanes, and not many of them hit towers; but that is why there are standards and the FAA looks to governmental bodies to enforce regulations. He explained how the federal government controls local governments in terms of enforcing regulations. He explained the set-up of TiCo Airport; stated another runway is proposed; there are existing towers; and stated they want to get away from those. He stated if the plan is to build a new northeast and southwest runway, the approaches should be kept within the limits as though the runway was there now, because when it comes time to build the runway, federal assistance will be needed. He recommended the Board do what it can to keep the atmosphere around airports clear for the pilots.

Commissioner Scarborough stated Mr. Pittman's comments have implications for this application, but even more so to a later application the Board will be hearing; and inquired if this information can be considered at that time. Assistant County Attorney Eden Bentley responded Mr. Pittman has provided general information at this meeting which is part of the record; and the Board can refer to his comments, but the second problem is the next applicant might need to ask some questions. Discussion ensued on when Mr. Pittman can be cross examined. Mr. Nelson stated Mr. Pittman will stay for the next item. Commissioner Scarborough stated there are two separate applications, but the issue is intertwined. Mr. Nelson stated it is all pertaining to airport safety; the two towers he has close to that, one approved and one pending approval, both fall well outside that zone; and he consults with airport officials before making any request. Mr. Nelson requested the item be tabled for one month as he has not had a chance to talk to the Board's consultant and was just given the report today.

Commissioner Cook stated he notices the area on the map is not a perfect circle.

Mary Tees, Port St. John Homeowners Association, requested a copy of the report. She stated it is nice to have a cellular phone, but the people who use them may or may not be taxpayers; however, the people who live in that area who will be affected by the sight of the tower are taxpayers. She stated she has been to the site; and advised of the visibility of the tower to the Port St. John area. She stated this is a residential area; it is the spot the Board decided it will look at to see what it will do for the west side of the new interchange; and before the first meeting is held to discuss the interchange, there will be a tower there. She stated there are cellular phone users who may or may not be taxpayers in the County; there are residents who are; and this is the County's opportunity to make a statement on what it thinks interchanges should look like. She inquired if the Board wants interchanges to be lined with towers, or any kind of a strip mall put in; stated they have not had an opportunity to look at the land; and requested the Board give itself that opportunity.

Commissioner Scarborough stated the recommendation was to table the item until such time as the applicant can supply appropriate engineering data; and inquired if one month is sufficient time to resolve this. Mr. Nelson noted the Board has tabled the issue a couple of times, but this is the first time he asked that it be tabled; and he will do his best to satisfy the consultant's request for data. He advised of his attempts to get information and report from the consultant. Commissioner Scarborough stated the consultant needs engineering data from Mr. Nelson to comment on; and it will be a two-way dialogue.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to table Item Z9805107 to the September 24, 1998 meeting of the Board of County Commissioners. Motion carried and ordered unanimously.

Item Z9807401. Gomer and Victoria A. Mitchell's request for change from AU to BU-1 on 1.85 acres located on both sides of U.S. 1, approximately 500 feet north of Bonaventure Drive, which was approved with Binding Development Plan stating there will be no access from this property to Rockledge Drive by the P&Z Board, and approved for BU-1 on the west side of U.S. 1 and tabled for the remainder by the Board of County Commissioners.

Gomer Mitchell stated he went to the immediate neighbors concerning the change to BU-1; and submitted a petition and map showing those parties who agree.

Commissioner Cook stated he was told that Mr. Mitchell was going to request the item be tabled tonight; with Mr. Mitchell responding he was told it was too late to table it. Commissioner Cook advised the petition is for BU-1-A; with Mr. Mitchell advising it is for BU-1. Mr. Mitchell explained why he does not want BU-1-A. Commissioner Higgs inquired if Mr. Mitchell wants this to be tabled; with Mr. Mitchell responding no. Commissioner Cook stated Mr. Mitchell just handed in names of those who support the rezoning, but the Board has a stack of letters from people who originally had objected to BU-1, and wanted BU-1-A; and he has no way of knowing if they are the same people or different people. Mr. Mitchell noted he did not go to everyone on Rockledge Drive. Commissioner Cook stated he would like to table the item so he can review the letters; and initially he received a lot of objections. Mr. Mitchell stated some people have said that he had the meeting in Palm Bay to make it inconvenient for the neighbors. Chairman Voltz stated that is the perception; and Mr. Mitchell could be the beneficiary of that. Mr. Mitchell stated the change is within the Comprehensive Plan because it is BU-1 on both sides. Commissioner Cook stated down the street on US 1, one parcel was made RP; and inquired if Mr. Mitchell is going to submit a binding development plan. Mr. Mitchell responded someone said he was going to put a road through to Rockledge Drive; and he has stipulated there will be no road to Rockledge Drive. Commissioner Cook stated this is the first time he has seen the new petition; and all of the records indicate the people were objecting because the property backs up to residential. Mr. Mitchell stated he does not back up to residential. Commissioner Cook stated the property backs up to AU and SR; there is a road there; and the concern was the road would be used to Rockledge Drive. Mr. Mitchell stated it is his driveway, and no one else uses it. Commissioner Cook stated it goes through the property all the way from US 1; with Mr. Mitchell responding it does not go through that property, but through the property he owns at the back of his rental house.

Chairman Voltz suggested going to the site to investigate. She stated the people in the area need to know that it was not Mr. Mitchell who scheduled the hearing in Palm Bay.

Motion by Commissioner Cook, seconded by Commissioner O'Brien, to table Item Z9807401 to the October 29, 1998 meeting of the Board of County Commissioners. Motion carried and ordered unanimously.

Item PSJ80503. Orlando Utilities Commission's request for Conditional Use Permit for Towers and Antennas (165-foot lattice tower) in a GU zone on 5.739 acres located on the north side of Ranch Road, approximately .34 mile west of I-95, which was approved on the condition there is FAA approval by the P&Z Board, and tabled by the Board of County Commissioners.

Commissioner Scarborough inquired if Mr. Pittman should be called before the applicant speaks, because it would be part of the testimony the Board is receiving. Assistant County Attorney Eden Bentley advised the Board can reference Mr. Pittman's prior testimony, and it would be appropriate to ask more questions before the applicant speaks; and the applicant needs to have the opportunity to thoroughly address the comments.

Mary Doty, representing Orlando Utilities Commission and APT, stated this is a quasi-judicial proceeding; and objected to the County adopting the witnesses testimony as expert testimony on behalf of the County. Ms. Doty stated she cannot stop Mr. Pittman from testifying as a member of the public; but if the Board wants to say on the record that it has adopted Mr. Pittman as its own expert witness, it may although it is inappropriate. She objected to any testimony from Mr. Pittman being adopted by the County. Commissioner Scarborough stated he was not doing that to prejudice but to allow the applicant to cross examine, because currently the applicant is not given the opportunity to cross examine except for the case where the Board is relying on expert witness. He stated if Ms. Doty wants to proceed without opportunity to cross examine, the Board can proceed that way. Ms. Doty stated the County is adopting the person as its own expert. Commissioner Scarborough inquired if Ms. Doty wishes to cross examine; with Ms. Doty responding without prejudice to her argument, doing it in this way means the Board is taking Mr. Pittman as its own witness. Ms. Bentley stated this is not operating in a vacuum; the Board heard testimony about the airport that is in the vicinity of the tower OUC is considering; the Board wants to fully consider all evidence before it; it is not trying to adopt the testimony of Mr. Pittman as its expert witness; but it does not want to ignore the testimony because it was not presented at the right time in the hearing, and wanted to give Ms. Doty an opportunity to speak about it. Ms. Doty stated this quasi-judicial proceeding becomes adversarial; and if the Board is going to go in that manner, she will treat him as a County expert. Ms. Bentley advised it is Ms. Doty's choice how she would like to proceed. Commissioner Scarborough inquired if Ms. Doty wants to lead off and then have the expert. Ms. Doty responded no, this is a continuation of a previous public hearing; she had her experts; and after the Board has its expert speak, she will rebut.

Joseph DiPietro stated the application was for a 165-foot tower; and the telecommunications provider which provided the engineering information was Aerial Communications which is the A-band PCS provider for this area. He stated in their examination of the application and looking for alternatives, they searched several data bases including information provided by the County, and found that there were not any existing radio towers in the area that would serve as alternatives to a new facility. He stated he did a personal survey of the area, and confirmed the information in the data; they found 110-foot steel lattice towers carrying high voltage power transmission lines a very short distance north of the proposed location; and there are a number of these types of towers that are carrying antennas. He stated it is something some companies have taken to and others do not like, but it does work. He stated the question is whether the antennas could be placed high enough to meet the goals of the proposed site; the engineering data supplied in the application was not sufficiently technical to allow such a determination to be made; and he contacted Aerial Communications, which provided enough information to make the determination. He stated he identified the area they are trying to serve with this site; from their engineering data, he can tell that these areas are not presently being served; and if they do not get a site in this area, that will constitute an prohibition of service. He stated the question comes down to whether a new tower is the only way to meet the needs or will the power transmission towers suffice. He stated the engineers for Aerial Communications may not completely agree with his conclusion, but there are three coverage holes from the site, and two of them can most likely be met from the power transmission tower. He noted they are dealing with computer models which involves guesswork; some companies will not use them; but the vast majority do use the models. He stated there are many different models to choose from; normally a model is chosen based on the kind of system being built and the type of equipment and technology; and there are a huge number of variables. He explained the rush to prepare the report; and advised he conferred with other experts. He stated the engineers at Aerial Communications did not have an opportunity to question some of his assumptions.

Chairman Voltz stated this was tabled a month ago; and inquired why there was only a day to prepare the report. Community Development Administrator Peggy Busacca stated she began talking to Mr. DiPietro two or three days after the item was tabled; but permission to go forward was not given until the August 13, 1998 workshop. She stated she told Mr. DiPietro that the report was needed by August 27, 1998, and staff put together a Purchase Order, but this was a matter of Mr. DiPietro fitting it into his schedule.

Commissioner Cook inquired if Mr. DiPietro talked with the people from Aerial Communications; with Mr. DiPietro responding he met with them yesterday. Commissioner Cook inquired if Aerial Communications had an opportunity to provide feedback; with Mr. DiPietro responding he did not discuss the report with Aerial Communications, and there was no opportunity for the usual back and forth communication. Commissioner Cook inquired why Mr. DiPietro did not contact Mr. Nelson on the previous item. Ms. Busacca advised Mr. DiPietro asked staff to provide the name of the service provider for both applications; and staff asked Mr. Nelson to ask him to provide the name of the service provider with a letter of intent; but Mr. Nelson could not do that, so there was nothing for Mr. DiPietro to do. She stated staff was in contact with Mr. Nelson immediately upon knowing that was the kind of work Mr. DiPietro did. Commissioner Cook stated if the Board is going to contact one applicant, it should contact them all; and inquired if Mr. DiPietro is confident that his report is adequate. Mr. DiPietro stated the report is heavily qualified; he was trying to imagine himself in the place of the engineers of Aerial Communications; he observed certain things when they presented data; and they did not have an opportunity to go back and explain some of those things. He stated the technology is diverse; not everyone uses the same systems, signal levels, etc.; the systems are changing because this is new stuff; and the books and references he goes by may not be as current as the day to day experiences of the engineers that work for the applicant. He stated he has access to other experts; it usually takes a week to do a report; and what he presented is a first pass. He stated he is happy with the report and willing to stand behind it as long as he is given latitude to advise when they bring up a valid point. Mr. DiPietro stated if the applicant is happy with what he said, he does not need more time; and it is really up to them.

Commissioner Higgs stated the Commissioners have read the report; and requested Mr. DiPietro put his conclusions on the record. Mr. DiPietro stated there were three things they were trying to do with this site; two of them will work with no problem with the power transmission towers; but it is not reasonable to expect the third one to cover that area with either site. He stated from the amount of area covered by the existing sites, the proposed site seems to be doing double duty; and his conclusion is the power transmission tower will work to serve the two goals; and the third goal may or may not be served by the power tower or work from the 165-foot tower. He noted the difference in the power tower and the proposed tower is 30 feet; the area it is trying to cover is six miles away; and the difference in height is not significant. Ms. Bentley advised the third goal is to cover the SR 520 and east to SR 524 area. Mr. DiPietro stated it is to cover part of the Beeline from SR 407.

Chairman Voltz read aloud from the report; and inquired about the use of the word "conservative." Mr. DiPietro stated the computer models are guesses; and Aerial Communications is expecting less signal strength in an area than he believes is reasonable to expect. He stated his knowledge of the computer model being used by Aerial is that it is generally used for urban areas; the company is using it to predict propagation over marshland and swamp; the signal levels they were using were conservative; however, after having a conversation with an engineer on the way to the meeting, they are probably reasonable.

Commissioner Scarborough stated Ms. Doty has the opportunity to cross examine; and inquired when it would be prudent. Ms. Bentley stated Ms. Doty can raise the questions she likes, and Mr. DiPietro can come up and answer them.

Ms. Doty stated she would prefer Keith Black, Radio Frequency Engineer, respond to Mr. DiPietro's report; and noted they only got the report one-half hour before the meeting. She stated it is a site specific application for a particular tower; it is one site; it is not a site on a power line; and the County does not have a co-location requirement in the Ordinance. She stated when a subdivision developer comes in with request for approval at a particular site, the Board does not tell the developer it would like to have the subdivision down the site; the developer has made a business decision that it wants to have the subdivision at a particular site; and Aerial Communication's RF engineers have made a business and radio frequency decision that the tower is needed at the particular site.

Commissioner Cook stated if something is zoned for a subdivision, it goes through the permitting process, and never comes to the Board. Ms. Doty stated if it is a zoning decision, it is limited to the particular request at hand; Commissioner O'Brien said he does not like to tell people it is a bad idea for them to put a convenience store at a location because that is a business decision; and APT has made a decision based on engineering that it needs a tower at the proposed site.

Keith Black, Radio Frequency Engineering with APT, stated the site has three goals; it needs to cover Port St. John, I-95, and the east part of the Beeline Expressway; the power pole at 130 feet will cover two of the three scenarios; and the proposed site at 164 feet will cover the Beeline such that there will be overlap with the existing site on the Beeline and the site to the east. He stated with the extra 30 feet in height, it is possible to tweak the system such that it is possible to make the hand-overs occur a lot quicker than is possible without the height. He stated the 30-foot difference will set APT closer to achieving the third goal; it will allow more flexibility to tweak the parameters to make the hand-overs occur; and the site will not have to work as hard. He stated the site will have to work harder with the lack of height; with the 164-foot height of the tower, it is a one-site solution to cover SR 520; with the proposed power pole site, it would be a two-light solution; and as an engineer it is his duty to maximize the efficiency of coverage of each cell site so it is not necessary to put as many cell sites up. He stated a two-site solution in that area will provide more overlap than is needed; and he is going to try to make one site do the job of two.

Commissioner Higgs inquired if Mr. Black has the models on the coverage. Mr. Black stated the model they use is a Cost 231 model; it is constantly being fine-tuned; and explained what it does and does not do. He stated it is their design planning tool; drive test data could not be done because the site is not up yet; but they can go by what they see with their existing sites. He stated the Beeline Expressway is a straight shot, but there is clutter; and putting in the 164-foot height oversees the clutter such that the connection can be made to the existing site along the Beeline; whereas with the 120-foot site, that would not be possible. Commissioner Higgs requested Mr. Black define "clutter"; with Mr. Black responding trees, foliage, and buildings, but in this case basically trees. Mr. Black noted the RF propagation does not see through trees or clutter very well; the water helps a lot, but the site is not on the water; there needs to be a direct line of sight to be able to make the connection with the surrounding sites; and it needs to be tall enough to overlook the existing clutter.

Ms. Doty advised of charts which were entered into the public record at the last meeting.

Brian Milder, Zoning-Siting Specialist, representing Aerial Communications, advised of refinements to the prediction software; stated there are 240 sites in the network; and they have been able to improve on the predicting tool to reach the percentages of accuracy Mr. Black mentioned. He stated based on studies the site will serve the three goals; but it is less likely, if not impossible, for the power transmission tower site to accomplish the three goals; and the Beeline will not be covered by that site. He stated if they are denied the 165-foot tower and made to go on the power line pole, they will immediately have to get another tower to cover the Beeline; and so the net gain would be zero because there would still have to be another tower. He stated if the future goal of covering SR 520 is added with the site at 165 feet, only that site plus one more will be needed to cover SR 520 and the Beeline; but if they have to go with the power line, there is the power pole situation, the immediate need for a site at the Beeline, and most likely a third site to cover SR 520. He stated based on the discussions, he contacted OUC to determine what is involved in locating at a power tower; and explained what is involved including 48-hour notice for access, inability to use the site if risk of injury, death, or power outage, and subservience to OUC. He stated two days of lost service is a loss of revenue and potential loss of customers; there are other carriers who may not have located on power towers in this area, and will be able to maintain their sites as they need to; and if he was a customer experiencing days when he could not use his service and had another option, he would go with the other system. He stated APT would be at the mercy of OUC; he understands the argument that others have done it; however, just because it was done, does not mean it was done correctly. He stated there are other carriers that are trying to get out of their arrangements with power companies; and whenever they would have to go to the site to work on the antenna, they would have to be accompanied by an OUC worker, which would mean yielding to their work schedules and paying the salary of the worker.

Commissioner Higgs inquired if Aerial Communication has co-located on a power tower anywhere; with Mr. Milder responding no, it is an Aerial's policy not to co-locate for the reasons given. Commissioner Higgs inquired if Mr. Milder is aware there are other carriers that do that; with Mr. Milder responding he is aware of that, but simply because others have done it does not make it the appropriate thing to do. Mr. Milder stated the carriers on power towers are trying to get off because they cannot deal with having their sites shut down for a couple of days.

Discussion ensued on Mr. Pittman's testimony.

Commissioner Scarborough inquired if Ms. Doty wants Mr. Pittman to put his qualifications in the record again. Ms. Doty advised she does not care to have Mr. Pittman qualified as an expert; he is speaking as a private citizen; she is not taking him as her witness; and it is up to the Board. Commissioner Scarborough stated Mr. Nelson submitted Mr. Pittman's resume earlier. Ms. Doty advised she will object to any expert testimony coming from Mr. Pittman when it goes up. Commissioner O'Brien stated he would perceive him as an expert witness because of his credentials; if Mr. Pittman cares to appear before the Board as a private citizen, so be it; and inquired if the Board should never hear the voice of the private citizens and the private citizen's voice has no weight. Commissioner Scarborough stated if Mr. Pittman comes as an expert, the cross examination is almost automatically granted while the Board has never forced a private citizen to undergo cross examination. Ms. Doty stated she was concerned about Commissioner Scarborough's initial reference to her cross examining Mr. Pittman; and she assumed the Board was accepting him as a witness on behalf of the County, which she felt was inappropriate. She stated the Board is entitled to listen to comments from public citizens. Chairman Voltz stated the Board wants to give Ms. Doty an opportunity to question Mr. Pittman.

Discussion ensued on swearing in speakers.

George Pittman stated a comment was made that the diagram was not a perfect circle; and submitted a map. He described runways, approaches, and heights; stated the circles connect that; and that is why it is not a perfect circle. He stated the adoption of standards by the FAA was after many years of experience; and they say a certain amount of height around airports should be protected because chances are sooner or later someone will run into something. He stated a railroad engineer was asked to design an airport; a train comes in on one line and goes out on all different sitings in a depot; but an airport brings everyone from every direction and puts them on one spot; and that is why there is a requirement for protection. He stated if a pilot is making an approach to a runway, and is too high to land, he has to keep on going; the standard condition is to immediately climb up to a safe altitude, keeping the air field in sight if there is reduced visibility, and then the pilot turns 45? to the right and comes in from the opposite direction; and in that case, the pilot never gets very high. He stated the standards were established; and they are no different than building a tall building where the zoning requirements are limiting the height of a building to how high the fire trucks can service. He stated the air field standards were established to protect people having to fly into that particular airport.

Commissioner Scarborough stated Mr. Pittman described general conditions; there is a specific site; and inquired if locating a tower of this height at this site will create a hazard. Mr. Pittman stated he has seen several locations proposed for towers; and he is not sure which particular one the Board is talking about now. Chairman Voltz stated if it is within the particular area, then it is not safe, but if it is out, it is okay; with Mr. Pittman advising that is correct. Commissioner Scarborough requested the Zoning Official show Mr. Pittman the site on a map.

Discussion ensued on the map, and Mr. Pittman's lack of knowledge of the site.

Bill Hutto, Director of TiCo Airport Authority, provided a map; and pointed out the proposed location. Mr. Pittman stated the proposed location is inside of the 150-foot clearance; it would be necessary to look at each particular one because each runway is sloped; each location must be individually determined; and he has not had an opportunity to look into it. He stated lines of height are shown along the side of the runway; in the middle, if it is below 150 feet, it would normally be considered all right providing it is not within the height restriction lines for each runway. He stated it appears to him that it would be okay as long as it is below 150 feet above the ground; in other words, it would be 185 feet above mean sea level; and the airport is at 35 feet.

Commissioner Cook stated it is proposed to be a 165-foot lattice tower. Discussion ensued on the height.

Commissioner Higgs inquired if it is Mr. Pittman's opinion that a tower of 164 feet at the location identified on the map would cause hazards to aircraft safety. Mr. Pittman responded it is not recommended because it is beyond the limits established as a standard. Chairman Voltz noted the applicant has a letter from FAA indicating it is okay. Mr. Pittman stated the FAA allows the County to establish its own laws, but recommends certain standards; but later if the County needs something, it will be told it is not in compliance with the limits.

Ms. Bentley advised the map being referred to is a copy of the Avcon map that is prepared for Space Center Executive Airport, Airport/Airspace Drawing Plan; with Mr. Pittman confirming it is the Avcon map. Ms. Bentley stated the map has a pink circle showing the air space and a green line going across it; and advised it is Pittman Exhibit 1; and requested Mr. Pittman mark the tower location. Mr. Pittman stated the blue line is already marked.

Ms. Doty handed Mr. Pittman a Determination of No Hazard to Air Navigation for the particular tower site, which was put into the record at the last public hearing; and inquired if it is a No Hazard Determination for APT's site; with Mr. Pittman responding if it is the same site, it would apply. Ms. Doty inquired what was the determination by the FAA; with Mr. Pittman responding it is a determination of no hazard to air navigation based upon the existing runways. Mr. Pittman stated his comments pertained primarily to a much longer runway than is in the plan; and this is something that should be considered because it is part of the master plan for the Airport. Ms. Doty displayed an airport layout plan; and inquired if the plan is reflective of the proposed runway; with Mr. Pittman responding it does. Ms. Doty inquired if it is Mr. Pittman's position that the FAA did not consider the proposed runway when it made its determination of no hazard to air navigation; with Mr. Pittman responding normally they apply it to what is existing at the time. Ms. Doty inquired if Mr. Pittman had discussions with Armando Castro, the FAA Specialist who wrote the Determination of No Hazard to Air Navigation, as to what things he did or did not consider; with Mr. Pittman responding he did not. Ms. Doty inquired if it is Mr. Pittman's opinion that the FAA made a mistake or incorrectly applied FAA statutes when it made the determination; with Mr. Pittman responding it would appear to him the FAA made a mistake in that it did not go by its own standards. Ms. Doty inquired if the standards would be the FAA did not consider the proposed runway; with Mr. Pittman responding he cannot say that, but the standards say that within that particular area 150 feet is the maximum except on approaches. Ms. Doty inquired if the FAA did consider the proposed ALP with the new 10,000-foot runway, and came to the same determination, is it Mr. Pittman's position that the FAA violated its standards. Mr. Pittman responded if the latitude and longitude are as indicated and it is 173 feet above the ground, the FAA made a violation. Ms. Doty inquired what standard did the FAA violate; with Mr. Pittman responding it is the height the FAA recommends all things stay below around given areas within specific distances from runways on airports. Ms. Doty inquired if Mr. Pittman has a specific statute or rule number; with Mr. Pittman responding no, but there is one. Ms. Doty inquired if it is Mr. Pittman's position that the FAA violated a particular rule when it made the determination of no hazard; with Mr. Pittman responding that is his belief.

Commissioner Scarborough inquired if there is a way in looking at the map he could determine how far to the south and the west he would have to move a particular tower to not violate air space; with Mr. Pittman responding affirmatively. Commissioner Scarborough inquired if there are numbers on the map that would allow a layman to easily determine where a tower would not interfere, and how would he do that; with Mr. Pittman explaining how to use the map and marking the map at the closest acceptable location to the existing tower. Ms. Bentley advised it is the same map as was marked Exhibit 1. Mr. Pittman stated it could be located anywhere on the 200-foot line. Commissioner Scarborough passed the map to the Commissioners and Ms. Doty. Mr. Pittman stated it would be the limiting line, just like limiting the height of a building. Commissioner Cook stated they could build a tower of 199 feet at that location; with Mr. Pittman responding there should be no argument from anyone then, except for a neighbor. Chairman Voltz inquired if it cannot be figured at 164 feet, and does it have to include the 35 feet; with Mr. Pittman responding yes, it has to be above mean sea level. Commissioner Higgs inquired what height tower could be safely built at the blue line; with Mr. Pittman responding up to 150 feet.

Ms. Doty inquired if within the circle nothing should be built over 150 feet; with Mr. Pittman responding that is correct. Ms. Doty inquired about a control tower; with Mr. Pittman responding even a control tower has to have a variation from FAA in order to be built, and it should not be over 150 feet. Ms. Doty inquired if Mr. Pittman has done a survey or study of the area to see if there are any existing structures that exceed 150 feet; with Mr. Pittman responding he has not. Ms. Doty stated there is a power plant; with Mr. Pittman responding that is the one he referred to earlier, and pilots have been concerned about those towers for years. Ms. Doty reiterated her inquiry concerning which FAA regulation says nothing can be built above 150 feet within the circle; with Mr. Pittman responding he cannot give the specific regulation right now, but could find out. Ms. Doty inquired if Mr. Pittman's position is that Armando Castro does not know about that regulation; with Mr. Pittman responding he should know about it.

Commissioner Higgs inquired if in his siting work, Mr. DiPietro ever dealt with airports and similar situations; with Mr. DiPietro responding yes, but he is not an expert in that area and usually defers to the FAA.

The meeting recessed at 7:17 p.m. and reconvened at 7:30 p.m.

Bill Hutto stated there are two issues of concern with the tower; and one is the obvious safety issue. He stated the Board decided to deny the Sprint tower earlier this month; if the proposed tower is built, it will be approximately equal distance from the existing approach as the earlier tower; and the earlier zoning was denied based on safety such as bad weather, pilot error and mechanical problems. Mr. Hutto stated these things happen in flight; and they do not need obstacles in the way of bringing an aircraft down safely. He stated Mr. Pittman did a nice job of explaining some of the things that could happen in flight. He read aloud a letter from TiCo Chairman Gregory Popp expressing concern about the safety hazard of towers in proximity to the airport. He stated at the last meeting it was stated he did not file an objection to the FAA during the comment period; submitted a copy of a letter of objection which was faxed to the office of Armando Castro on May 21, 1998; and advised the comment period went until June 20, 1998. He stated the FAA Aeronautical Study that was done for this cited FAR 77.23(a)(5); the proposed tower exceeds that paragraph by 37 feet; so it does exceed FAA standards, but was given a determination of no hazard because it does not today change any instrument operations in the area. He stated the second concern is related to future development; the FAA bases its finding on what the master plan says; it took into consideration the 10,000-foot runway as shown; however, it does not take into consideration any variations in the runway. He stated if they decide the runway needs to be shifted 10? to the south, the tower may prevent the development; that is where many airports have gotten caught where a situation was not a hazard on the front end, but as things progressed, the situation prevented development. He stated if the tower goes through, he would like a stipulation that Aerial Communications would be required to remove the tower if the airport builds the runway and it was considered a hazard; and that is critical to future development as the entire 20-year master plan is based on being able to build this runway. He stated it is not in the airport's best interest to stand by and see that development go by the wayside for Aerial Communication's benefit; Aerial Communication is concerned that it needs the tower right there; he respects that; but the airport has to look after its interest in safety and future development. He stated it needs to be put in an area where it will not be a safety concern; and outside the 200-foot mark is a benchmark.

Commissioner Higgs inquired about Mr. Hutto's credentials; with Mr. Hutto responding he is a graduate of Auburn University and Embry Riddle Aeronautical University. Commissioner Higgs inquired if the tower location at the current distance of the runway poses a hazard; with Mr. Hutto responding he would oppose the tower with or without the runway because it does violate FAR 77; and it says so in the FAA report. Commissioner Higgs stated the concern is both the existing and proposed runways and the operations around those. Mr. Hutto stated Richard Hutchcraft can speak more to the technical part of this, but the runway west of the existing instrument approach is on the missed approach path; and the objection is based on that and on future development.

Commissioner O'Brien stated Mr. Hutto mentioned in the May 21, 1998 letter that this tower would be located near the approach path to Runway 6/24, and may interfere with planned ILS approach to Runway 6, the tower would be an extreme hazard to air navigation as it appears to exceed FAR 77.23, and it could cause the runway from ever being built if the alignment changes during design. He stated there is a planned expansion; and it is possible that the tower, which is inside the 200-foot outer marker, may become an extreme hazard. Mr. Hutto stated there is no question that it would be a hazard at that point; he considers it to be a hazard now; and the FAA confirms the fact that it does exceed FAR 77.23.

Richard Hutchcraft requested the Board consider denying the site specific for installation of the 165-foot cellular tower based on safety. He advised of training being done at the airport; stated it is not a perfect world; he works in the real world; and there is too much margin for error, especially in takeoffs and landings. He stated marginal weather is a factor; it may not be possible to see the tower in time to make something happen with the aircraft; and sooner or later someone will end up hitting one of the towers or they will contribute to an aircraft accident. He outlined scenarios where the tower could be a problem. He stated safety is the big issue; and it may come down to the future goals of Aerial Communications versus the future goals of the TiCo Airport Authority.

Commissioner Scarborough requested Mr. Hutchcraft tell the Board who he is employed by. Mr. Hutchcraft stated he works for a company which has a federal contract through FAA; he works at the Space Coast Regional tower; and he has been there almost five years. Commissioner Higgs inquired if Mr. Hutchcraft is an air traffic controller; with Mr. Hutchcraft responding yes, but he also flies out of that field so he has concerns as a pilot as well. Commissioner Scarborough inquired if Mr. Hutchcraft has any problem with being cross examined; with Mr. Hutchcraft responding he will do his best. Ms. Doty indicated she does not desire to cross examine.

Ray Thomas stated he is an aircraft owner and a pilot of 51 years; 31 of those years were as an airline captain; and he has been in and out of places with towers. He stated he has nothing against towers; they are a necessary evil; but around airports they are hazardous. He advised of his experiences with a 200-foot ceiling and poor visibility; and stated around airports is not the place to have towers or high buildings. He stated he is against towers around airports; not enough research is done; the towers seem to go up overnight; and suggested towers be bunched together to alleviate some of the problems.

Barbara Lasher stated she is a pilot, owns her own plane, and uses TiCo Airport. She stated towers near airports are a safety hazard; she has only been a pilot for five years; low time pilots do not want towers near the airports; and requested the Board deny the request.

Mary Tees, President of the Port St. John Homeowners Association, stated the Association fully endorses the future plans of the airport, and looks forward to more money coming into the County, and bigger facilities at the airport. She stated the Board's consultant advised two of the goals could be met by co-locating on the OUC towers, and that the third one was over-conservative. She stated the gentleman who was speaking for the applicant advised they have to consider obstacles, and trees are obstacles; where SR 407, SR 520 and SR 528 come together in a triangle is where the St. Johns River is; there are not many trees in that area; and the signals should travel nicely located within that realm that is safe for the airport. She noted the area is flat; Florida does not have mountains or many hills; and in the triangle area it would not be necessary to worry about many obstacles. She requested the Board consider denying the request as there are safety concerns for the airport and the consultant is saying it could be done in a better way; and advised of a tower which went up in three days. She stated today there was a pilot doing touch-and-goes just south of the Government Center, and it is a good thing there were no towers because the pilot could have crashed into them. She stated not all pilots are honorable or respectful of the rules; and requested the Board deny the item.

Marvin Juhl stated he opposes the antenna for safety reasons; his place of business is at the Space Coast Regional Airport; and he has flight school students and flies charter operations from there. He stated the proposed site is too close to the proposed runway; and advised of the existence of other towers. He advised of the problems encountered by the firefighters; stated if anything happened with an engine, the aircraft would hit the antenna; and if it kept going, it would hit the power plant. He stated not putting any obstacles in the general area would help the safety problems at the airport; and requested the Board to deny the antenna.

Ms. Doty stated APT had a customer need to provide service to Port St. John, SR 407, the Beeline, and I-95 in a particular area; it researched the area and found no existing towers or structures to co-locate on; and after looking at the Ordinance, it found a site that meets every criteria of the Ordinance. She stated the Board has not heard anyone complain about the location of the site in terms of it impinging on a residential area; it is in a remote location; it is next to a retention pond; it is in a cattle pasture; and it is a great environmentally situated site which meets every criteria of the Ordinance. She stated the FAA has exclusive jurisdiction over air space in this country; and the FAA looked at the ALP for the TiCo Airport which includes its future runway plans and the FAA regulation, and said this tower does not propose a safety hazard. She stated the Board heard a lot of people speak tonight who have a lot of experience in utilizing and running airports and working in control towers; but none of them have the experience combined that the FAA has in controlling air space in this country, nor does anyone present have any jurisdiction over the air space. She stated the Federal Highway Administration has jurisdiction over I-95; it sets the speed limits on I-95; and it determines in some places it should be 55, in others 65, and in some places 70. She stated there are drunk drivers, bad weather, mechanical problems, and all sorts of unforeseen things which create safety problems on the highway; but Brevard County does not set the speed limit on I-95, nor does the County say there should not be highways. She stated there are some things you cannot prepare for. She stated APT has responsibly researched the site, demonstrated the technical necessity for this location, and complied with every Statute and Rule in seeking approval for the site. She requested the Board approve the request.

Commissioner Scarborough stated the Board has the report of the County's technical expert who indicates while time was limited that his conclusion, which was based in the information, was that a new 165-foot tower is not required as long as the power line tower exists as a viable alternative; and conceivably other items could have been addressed as well. He stated there is the issue of compatibility; it would be a mistake to assume it is just the neighbor next door when talking about a tower; and the Board has discussed the adverse affect of the visible lines affecting people further away. He stated the Board heard a tremendous amount of information from different people; most persuasive was the gentleman who was the air traffic controller at this airport for five years; and it is hard to believe that anyone would better understand the conditions. He stated while there may be speed limits, a police officer can arrest you for driving in a manner that is unsafe for conditions; there are conditions that only someone like a tower operator would understand in terms of close calls and nature of the pilots; and there is a lack of compatibility.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to deny Item PSJ80503.

Commissioner Higgs stated the technical necessity, which is required as part of the Ordinance, has not been demonstrated at this site; the expert has testified the technical necessity at this location is not there; and given the other compatibility and public safety issues, she will support the motion.

Chairman Voltz called for a vote on the motion. Motion carried and ordered unanimously.

Item PSJ80701. P.S.J. Investments, Inc.'s request for change from BU-1 to BU-2 with a Binding Development Plan for Mini-warehouses on 0.68 acre located on the north side of Palm Street, approximately 195 feet west of U.S. 1, which was approved with a BDP and buffer on the west property line by the P&Z Board, and tabled by the Board of County Commissioners.

Commissioner Scarborough inquired if the applicant got everything settled. Carmine Ferraro requested the item be tabled. Commissioner Scarborough inquired if there is anyone present with an interest in this item; and no response was heard.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to table Item PSJ80701 to December 3, 1998 Board of County Commissioners meeting. Motion carried and ordered unanimously.

Item PSJ80503. Orlando Utilities Commission (continued)

Mary Doty requested the Board waive the time requirement for reapplication by APT.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to waive time requirement for reapplication for CUP by APT. Motion carried and ordered unanimously.

Item PSJ80702. Mitchell S. Goldman, Trustee's request for change from RU-1-9 to RR-1 on 17.17? acres located on the west side of Alcazar Avenue, 300 feet south of Fay Boulevard, which was approved by the P&Z Board, and tabled by the Board of County Commissioners.

Rodney Honeycutt stated this is a request to change from RU-1-9 to RR-1 which is a down zoning; RU-1-9 is left on the frontage street which is Alcazar Street; there will be flag lots; and there will be a maximum of nine lots. He stated eight of the lots are approximately an acre and one-half, and one lot is approximately four and one-half acres; and there were concerns at the meeting that there might be a group home or foster home as well as concerns about horses. He stated he submitted a Binding Development Plan in which they agreed that the development will only be for single-family residential and that the horses would be limited to two per lot except for the one large lot which would be limited to four horses.

Mary Tees, President of the Port St. John Homeowners, stated the last time this was heard, a petition was handed in with 157 people opposing the zoning change. She stated this is a residential neighborhood; it has four houses per acre with some lots a little bigger; it is nice that Mr. Honeycutt is down sizing; and inquired where do they intend to put the horses. She stated the area has paved streets; most horses do not go onto paved streets; they belong in an agricultural area; and that is the big concern. She stated the horses will have to be trucked out; there are a lot of children in Port St. John; and if the intent is to walk the horses on the sidewalks or streets, it poses a problem. She stated it is incompatible with the neighborhood; everything around it is residential; and advised of the suitability of the Canaveral Groves area for horses. She suggested Suburban Residential with no horses; stated Port St. John is a little city with 25,000 people; and expressed concern about horses in the middle of the city.

Chairman Voltz stated one of her staff members went to the area; and he saw horses all over.

Commissioner O'Brien stated rubber horseshoes are used in cities for horses walking on roads; and pointed out various areas on the map. He stated this kind of construction will be an enhancement to the neighborhood. Chairman Voltz agreed.

Commissioner Scarborough stated the thought is when you go next to the tracks, there need to be larger lots; the issue did not seem to be that the lots were going to be larger, but that there is not access for the horses; and inquired where will the horses go. He stated it will add horses to the neighborhood which will change the character; and while horses may have rubber shoes, there are other things they do. Chairman Voltz advised horses in parades wear something like a diaper. Mitch Goldman stated he lives in Rockledge; right around the corner on Murrell Road there is an area where there are horses; described the area; and stated the horses are within the fenced area. He stated that is what would happen in Port St. John because people are not going to let their horses run free. Commissioner Scarborough expressed concern that someone going to the horses trails in the back may use Fay Boulevard to access them; and stated it will create the possibility of accidents. Mr. Goldman stated the last time the Board requested he research the issue; there are no County or State restrictions regarding riding horses on a public road; and so apparently it has not been a problem. Commissioner Scarborough stated if the Board creates a horse environment, it creates a problem; if the horses are not surrounded by residential areas, then it is not a problem; but this is a tightly compact urban area which is inappropriate for horses. Mr. Goldman stated he sees large lots with a maximum of two horses; some of the lots are almost two acres; and that is plenty of room for two horses. Commissioner Scarborough stated they may not keep the horses on the property; and there is a question whether they will be trucked or put on the streets. Mr. Goldman stated it is legal for them to do that. Commissioner Scarborough inquired if there is a way to put a restriction on whether a person as a part of the Binding Development Plan cannot access the residential streets with horses. Assistant County Attorney Eden Bentley stated the Binding Development Plan is intended to restrict the use of the land; there is no jurisdiction over the streets that way; and when she checked the traffic control rules, she did not see anything about horses. She noted the Board may have authority to regulate uses which are incompatible. Commissioner Scarborough stated there may not be something that says you do not place towers near airports, but towers are not placed there because they create a problem; and the Board may not want to place horses in the middle of a tightly compact residential area because it creates problems. Ms. Bentley advised the Board can look at the compatibility issues in this case. Mr. Goldman suggested the Board look at situations where this has become a problem; and stated the Board probably gets more calls on barking dogs than on horses running wild. Commissioner Scarborough stated if he does this tonight, he creates a potential problem; his job is not to create conflicts; clearly lots can be sold without having horses because only certain people have horses; but a much larger portion of the population have dogs and cats. He stated he is not prepared to make a motion in favor with the horses with unlimited access to the residential area; and he will either move to deny or table.

Discussion ensued on who can make a motion.

Commissioner Higgs inquired about RR-1 without the horses. Commissioner Scarborough stated he asked at the first meeting to not have the horses there; it will not make the lots any less salable because the horse population is not that huge; and it is not like saying you cannot have children or a dog because that would begin to touch the marketability of property. He stated he cannot support the change with horses.

Commissioner O'Brien stated Commissioner Scarborough faced his responsibility to the local community in a proper manner; but he looks at it from a different perspective. He stated there is plenty of room for horses with no interference to the neighborhood; and there are not a multitude of accidents involving horses and cars. He stated all the property to the south is open for trails, etc.; and while he understands Commissioner Scarborough, he will have to move for approval.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to approve Item PSJ80702 with Binding Development Plan limited to two horses on all lots except the four and one-half acre lot which is limited to four horses.

Commissioner Higgs stated she agrees with Commissioner Scarborough; RR-1 is okay and the lot sizes are fine for horses; but she does not see any place for there to be a realistic use of the animals.

Chairman Voltz stated the horses are not going to be running all over the streets; and most people who have horses take care of them and truck them when they are going to use them.

Commissioner Scarborough stated never has he seen an attempt to put horses in an enclave of residential houses before; he does not see that as an element that would make the property that much more attractive and marketable; and the applicant is getting everything else they requested. He stated it would be bad precedent to start putting horses in the middle of residential areas; and he will never support it.

Chairman Voltz stated her staff did see quite a number of horses. Commissioner Scarborough inquired if they were on Fay Boulevard; with Chairman Voltz responding they were all around the area.

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

Motion by Commissioner Scarborough, to overrule the Planning and Zoning Board and deny Item PSJ80702.

Commissioner Scarborough stated if the applicant does not want to compromise, it is better to dispose of it.

Mr. Goldman stated he would prefer to keep the more intense zoning because he can develop the property with 64 lots. Commissioner Scarborough stated there is no objection to doing that. Mr. Goldman stated if the motion is to deny, he prefers to keep the RU-1-9 zoning he currently has.

Commissioner Cook seconded the motion to deny Item PSJ80702. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ZONING RECOMMENDATIONS OF AUGUST 3, 1998

Chairman Voltz called for the public hearing to consider the recommendations of the Planning and Zoning Board made at its August 3, 1998 meeting, as follows:

Item Z9808108. Indian River Holding Corporation of Titusville's request for change from AU to SR on 1.429? acres located on the west side of Bent Oak Drive at its northern terminus, which was approved with Binding Development Plan with no access to the west by the P&Z Board.

Commissioner Scarborough inquired if anyone is in opposition to the item.

Rodney Honeycutt stated Bob Holloway is the owner, and Woody Rice is an expert who is present.

Commissioner Scarborough inquired if the Binding Development Plan with no access to the west has been taken care of; with Mr. Honeycutt responding it has been submitted with no access to the west along the road right-of-way to Turpentine Road. Mr. Honeycutt stated the reason he has it like that is the property owner owns no property between his property and Turpentine Road, and if he bought that property, the access would not be denied. He advised the applicant does not want to have the Binding Development Plan unless he has to. Commissioner Scarborough stated the BDP was part of the recommendation of the Planning and Zoning Board; and he would rather have that than get into all the merits. He advised Mr. Holloway spoke with him this afternoon.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to approve Item Z9808108 with Binding Development Plan with no access to the west as recommended. Motion carried and ordered unanimously.

Item Z9808101. 4 G's of Brevard County, Inc.'s request for change from GU to ARR on 1.15 acres located on the south side of Sharpie Avenue, approximately 0.24 mile west of Satellite Boulevard, which was approved by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to approve Item Z9808101 as recommended. Motion carried and ordered; Commissioners Scarborough, O'Brien, Cook, and Voltz voted aye; Commissioner Higgs voted nay.

Item Z9808102. Ralph H. and Barbara A. Fenster's request for change from GU to ARR on 1.03 acres located on the west side of Albert Lane, at the western terminus of Bear Trail, which was approved by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to approve Item Z9808102 as recommended. Motion carried and ordered; Commissioners Scarborough, O'Brien, Cook, and Voltz voted aye; Commissioner Higgs voted nay.

Item Z9808103. Sandra Pierini's request for change from GU to ARR on 1 acre located on the south side of Harley Avenue, approximately .30 mile east of Satellite Boulevard, which was approved by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to approve Item Z9808103 as recommended. Motion carried and ordered; Commissioners Scarborough, O'Brien, Cook, and Voltz voted aye; Commissioner Higgs voted nay.

Item Z9808104. 4 G's of Brevard County, Inc.'s request for change from GU to ARR on 1.43 acres located at the southwest corner of Sharpie Avenue and Satellite Boulevard, which was approved by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to approve Item Z9808104 as recommended. Motion carried and ordered; Commissioners Scarborough, O'Brien, Higgs, Cook, and Voltz voted aye; Commissioner Higgs voted nay.

Item Z9808105. Thomas P. Henry's request for change from RU-1-7 to RU-1-11 on 1 acre located at the southeast corner of Cypress and Pineapple Avenues, which was approved by the P&Z Board. Motion by Commissioner Scarborough, seconded by Commissioner Cook, to approve Item Z9808105 as recommended. Motion carried and ordered unanimously.

Item Z9808106. 4 G's of Brevard County, Inc.'s request for change from AU to ARR on 2.28 acres located on the south side of Airboat Avenue, approximately 0.2 mile west of Satellite Boulevard, which was approved by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to approve Item Z9808106 as recommended. Motion carried and ordered. Commissioners Scarborough, O'Brien, Cook, and Voltz voted aye; Commissioner Higgs voted nay.

Item Z9808107. Power Play Properties, Inc.'s request for change from RU-2-10 to BU-2 on 5.08? acres located on the northwest side of SR 524, approximately 900 feet west of the I-95 interchange, which was approved limited to all BU-1 uses and only mobile home display use available in BU-2 by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to approve Item Z9808107 limited to all BU-1 uses and only mobile home display use available in BU-2 as recommended. Motion carried and ordered unanimously.

Item Z9808109. Thomas W. Latonik's request for CUP for Alcoholic Beverages On-premises Consumption in a BU-1 zone on 0.6 acre located on the east side of Riveredge Drive, approximately 0.62 mile south of the Riveredge Drive and U.S. 1 intersection, which was approved by the Planning and Zoning Board.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to approve Item Z9808109 as recommended. Motion carried and ordered unanimously.

Item Z9808110. U.S. Space Camp Foundation's request for CUP for Alcoholic Beverages On-premises Consumption in a PIP zone currently having a CUP for Additional Building Height on 18.3 acres located on the southeast corner of the SR 405 and Vectorspace Boulevard intersection, which was approved on portion of property designated PIP only by the Planning and Zoning Board.

Commissioner Scarborough advised he met with representatives of U.S. Space Camp and Attorney Angela Abbott; and he is pleased that they will handle the matter responsibly with no use of alcoholic beverages.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to approve Item Z9808110 on portion of property designated PIP only as recommended. Motion carried and ordered unanimously.

Item Z9808111. Charles R. and Joan K. Denman's request for change from GU to AU on 2.37 acres located on the west side of Fan Palm Avenue, approximately 0.22 mile south of Cabbage Palm Avenue, which was approved by the Planning and Zoning Board.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to approve Item Z9808111 as recommended. Motion carried and ordered unanimously.

Item Z9808201. L. R. and Delores W. Bouchard, Trustees' request for change from RR-1 to AU on 2.51 acres located on the east side of North Tropical Trail, approximately 0.19 mile north of Grant Road, which was approved by the Planning and Zoning Board.

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to approve Item Z9808201 as recommended. Motion carried and ordered unanimously.

Item Z99808202. Walter L. and O'Dessa L. Bryan's change from GU to SR on 0.69? acres located 0.22 mile east of South Tropical Trail, approximately 240 feet north of Oak Grove Lane which was approved by the Planning and Zoning Board.

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to approve Item Z9808202 as recommended. Motion carried and ordered unanimously.

Item Z9808204. Alexander H. Bobinski, Trustee and Patsy J. Clark's request for Conditional Use Permit for Alcoholic Beverages On-premises Consumption in a BU-2 zone on 3.21 acres located on the north side of S.R. 520, approximately 350 feet east of Plumosa Street, which was approved by the Planning and Zoning Board.

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to approve Item Z9808204 as recommended. Motion carried and ordered unanimously.

Item Z9808205. Donald H. Gabbert's request for Conditional Use Permit for Land Alteration in an AU zone on 40.72 acres located approximately 360 feet north of S.R. 3 approximately 0.55 mile east of Simons Avenue, which was approved by the Planning and Zoning Board.

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to approve Item Z9808205 as recommended. Motion carried and ordered unanimously.

Item Z9808206. Barr Bliss' request for Conditional Use Permit for Horses and a Barn in an SEU zone on 10.7 acres located on both sides of South Tropical Trail, approximately 520 feet north of Crispin Street, which was approved by the Planning and Zoning Board.

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to approve Item Z9808206 as recommended. Motion carried and ordered unanimously.

Item Z9808207. Thao and Lan Nguyen Dihn's request for change from GU to AU on 6.40? acres located on both sides of North Banana River Drive, approximately 0.47 miles south of North Banana River Drive and S.R. 528 which was approved by the Planning and Zoning Board.

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to approve Item Z9808207 as recommended. Motion carried and ordered unanimously.

Item Z9808203. Ronnie L. (Sr.) and Eleanor R. Brown's request for change from RU-1-7 to BU-2 on 0.2 acre located on the south side of Highland Court, approximately 248 feet east of Clearlake Road, which was approved with BDP subject to an 8-foot fence being replaced and maintained within 30 days, and limited to a security trailer and the storage of U-Haul trailers only by the Planning and Zoning Board.

Commissioner O'Brien stated the item was approved by the Planning and Zoning Board with a Binding Development Plan subject to an 8-foot fence being replaced and maintained within 30 days, and limited to a security trailer and storage of U-Haul trailers only.

Terry Brown, spokesperson for the applicants, stated the BDP has been submitted; the lot is too small to rebuild on, and has no other practical use. She stated they do not want to run the body shop from that location which is the primary objection of Mr. Buckley and his family.

Milt Buckley, representing his mother, stated his mother's property abuts the subject property on the south boundary; the applicants have a 50-foot by 175-foot lot zoned RU-1-7; and they are requesting rezoning to BU-2. He stated there are numerous BU-2 applications that are incompatible with residential dwellings; and the subject property has three residences abutting it. He stated his mother's bedroom is 30 feet from the property; and outlined the orientation of the other two properties in relation to the subject property. He stated to approve the request would be to benefit one property owner at the expense of at least a half dozen single-family homeowners; and the homeowners were in the area long before the first body shop came. He stated approximately 15 years ago, body shops started coming in; and request the Board not approve the rezoning to BU-2 which would compound the problem. He stated the property has a market value of $5,000 to $6,000; it will negatively impact approximately $250,000 in homes; and it is not fair to the other property owners. He stated three of the owners are retired; they have lived in the homes for years, and have them paid for; and they should be able to have quiet enjoyment of their properties. He stated there is a certain amount of grinding, banging, hammering, and paint odor they have lived with for years; and asked the Board not create more BU-2 zoning because once it is done, it cannot be undone. He stated the applicant at the P&Z meeting requested the change for three reasons; one was to run a 24-hour wrecker service; another was to have a part-time security trailer; and the third reason was to operate a U-Haul business. He stated U-Haul likes the inventory to be visible; nothing would be visible on this lot from the commercial property; and it is directly across the street from Clearlake Middle School. He stated wreckers are not big, and do not require a lot of room to park them; Brown's Body Shop has four lots commercially zoned for a body shop now; and the shop has had a security person for several years living in a small residence attached to the body shop. He noted his mother has not had a break-in in 34 years, and there is no need for two security people; and stated there has been an ongoing problem with the lots being used for a junkyard. He stated it is an incompatible use; and requested the Board reconsider.

Ms. Brown stated they are not adding a second security building; they are eliminating the original, and putting in a better structure that will be more compatible with the neighborhood; and submitted pictures of the lots. She stated in the last few weeks, they have attempted to make the shop more acceptable to the neighbors; she cannot help that it is BU-2 abutting their houses; and described the surrounding properties. She stated they close the shop before 6:30 p.m.; and it is closed Saturday afternoon and all day Sunday. She stated they are answering the Code Enforcement Board by removing all vehicles which are not within the time guideline; the 24-hour wrecker service has been there since her father-in-law opened the shop ten years ago; and it has never presented a serious problem.

Commissioner O'Brien inquired if the lot cannot be built on; with Ms. Brown responding they cannot build on it because it is too small. Chairman Voltz noted it is only two-tenths of an acre. Ms. Brown advised a structure on the lot seven years ago had to be razed as it was unfit for habitat; and they have been told they cannot rebuild because the lot is too small. Commissioner O'Brien stated the parcel is not wide enough to stand on its own; and inquired if the plan is to put U-Haul trailers on it. Ms. Brown advised all of the U-Hauls are on Clearlake Road on the fence; but in October when people come to Florida for the winter, there is an overflow that has to be put somewhere; and she was going to use the back half of the lot. Chairman Voltz inquired if that is where they were going to put the fence; with Ms. Brown responding yes. Ms. Brown stated the new fence will run all along Ms. Buckley's property starting at Loring Street, going all the way to the far corner, and replacing the six-foot fence from that corner to Highland Court. Commissioner O'Brien inquired if it will be replaced with an eight-foot fence; with Ms. Brown responding if that is what the Board requires. Commissioner O'Brien stated the lot is unbuildable; the applicant is stuck with a lot that will be a parking lot whether it is zoned for that or not; and with the Binding Development Plan restricted to U-Haul trailers only and an eight-foot fence for privacy for the neighbors, he will approve.

Motion by Commissioner O'Brien, seconded for discussion by Commissioner Cook, to approve Item Z9808203, subject to a Binding Development Plan with an eight-foot fence being replaced and maintained within 30 days, and limited to a security trailer and the storage of U-Haul trailers only as recommended.

Ms. Brown stated she and her husband will be taking over the business over the next five years, and will see to the upkeep of the property, fence, etc. Commissioner O'Brien stated the applicant owes it to the neighborhood to make the fence look nice and stay nice; and all junk cars must be removed. Commissioner Scarborough inquired if Mr. Enos has a copy of the Binding Development Plan, and what does it include. Zoning Official Rick Enos responded it has the eight-foot stockade fence along the property line, the limitation of the use to U-Haul trailers, and the security mobile home; and the 50-foot lot could be used for nothing other than those two things. Commissioner Scarborough inquired about buffer; with Mr. Enos responding at the P&Z meeting there were discussions concerning buffers and landscaping, but the P&Z Board decided that the fence would be adequate. Commissioner Scarborough inquired if they can park right next to the fence; with Mr. Enos responding yes.

Chairman Voltz called for a vote on the motion. Motion carried and ordered; Commissioners Scarborough, O'Brien, Cook, and Voltz voted aye; Commissioner Higgs voted nay.

Item Z9808301. Barlo Realty Corporation's request for Conditional Use Permit for Trailer and Truck Rental in a BU-1 zone on 1.02 acres located on the north side of Palm Bay Road, approximately 0.27 mile west of Dairy Road, which was approved by the Planning and Zoning Board.
Commissioner Higgs stated her office received a number of comments; several were in opposition; the City of Melbourne requested some conditions be included if the CUP is approved; and they are included in the packet. She stated one of the conditions is to do it consistent with the City of Melbourne, limiting to two on display with the rest of the U-Hauls fenced in the back.

Chairman Voltz stated that is how it is now; there is no room for much else there; and there was a misconception that this was a truck and trailer rental.

Chairman Voltz inquired what the applicant has in the back of his property now; with Frank Bartolotta responding nothing, it is all trees, and the trucks are all on the cement.

Motion by Commissioner Higgs, seconded by Commissioner Cook, to approve Item Z9808301 consistent with the City of Melbourne's request that only two trailers would be displayed in front, and to maintain a better aesthetic appearance a six-foot opaque fence or vegetative buffer be required that screens to the rear all adjacent properties.

Chairman Voltz noted the land behind Mr. Bartolotta's property is not his. Commissioner Scarborough stated if the land behind Mr. Bartolotta's land was cleared, he would then have to put up a fence; but as long as there is a vegetated buffer, there is no problem.

Chairman Voltz called for a vote on the motion. Motion carried and ordered unanimously.

Item Z9808401. Suntree Community Developers, Inc.'s request for change from PUD to BU-1-A on 14.7? acres located on the southwest corner of Holiday Springs Road and Viera Boulevard, which was approved with Binding Development Plan limiting site development to a 4.2? tract and remainder as retention and conservation and applicant to amend the PUD by the Planning and Zoning Board.

Kay Blahauvietz, Allen Engineering, stated Jack Wolfe agreed to all the conditions for approval at the P&Z meeting, and met with Mr. Enos today.

Zoning Official Rick Enos stated on Item Z9808401, Mr. Wolfe agreed to a Binding Development Plan limiting development of the site to the north 4.2 acres of the 14.7-acre site, and the remainder would be retention and conservation.

Commissioner Cook stated he is willing to table the item if necessary, but he has a problem with compatibility of anything commercial on this site. Commissioner O'Brien indicated he is also uncomfortable with the request. Commissioner Cook stated he would like to get more information and have a meeting; and there are compatibility issues that still need to be resolved.

Commissioner Cook inquired if tabling to October 29, 1998 would be all right with the applicant. Mr. Blahauvietz advised he hesitates to answer for Mr. Wolfe, but if the Board is not satisfied, tabling is appropriate, and hopefully they can answer the Commissioners' concerns.

Motion by Commissioner Cook, seconded by Commissioner O'Brien, to table Item Z9808401 to October 29, 1998 Board of County Commissioners' meeting. Motion carried and ordered unanimously.

Item Z9808402. Suntree Community Developers, Inc.'s request for change from PUD to RP on 21? acres located on the southeast corner of Holiday Springs Road and Viera Boulevard, which was approved with Binding Development Plan limiting development of site to the north 12.7 acres and the remainder as retention and conservation and applicant to amend the PUD by the Planning and Zoning Board.

Commissioner Cook stated Item Z9808402 is related to Item Z9808401.

Motion by Commissioner Cook, seconded by Commissioner O'Brien, to table Item Z9808402 to October 29, 1998 Board of County Commissioners' meeting. Motion carried and ordered unanimously.

Item Z9808403. Chester W. and Barbara J. Wendrzyk's request for change from GU to BU-2 on 2 acres located on the north side of Otter Creek Lane, approximately 300 feet west of U.S. 1 which was approved by the Planning and Zoning Board.

Commissioner Scarborough advised a representative for the applicant was present earlier, and requested the Board table the item if there was a problem.

Commissioner Cook stated there was no opposition at the P&Z meeting.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to approve Item Z9808403 as recommended. Motion carried and ordered unanimously.

Item Z9807109. Jessie Geste's request for Small Scale Plan Amendment to change the Future Land Use Map Designation from Heavy or Light Industrial to Residential and change from GU to RRMH-1 on 3.46 acres located on the west side of Railroad Street, approximately 0.33 mile north of Cross Road, which was withdrawn by staff for the Small Scale Plan Amendment at the LPA meeting, and approved by the Planning and Zoning Board.

Commissioner Scarborough inquired if the request for a Small Scale Plan amendment was withdrawn; with Zoning Official Rick Enos responding originally staff thought there would be a need for a Comprehensive Plan amendment as well as a zoning change, but the Comprehensive Plan is okay.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Item Z9807109 as recommended. Motion carried and ordered unanimously.

Item Z9807108. James H. (II) and Babette P. Burke's request for change from RU-1-7 to RR-1 on 1.09 acres located on the southwest corner of Kyzer Street and Kentucky Avenue, which was approved by the Planning and Zoning Board.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Item Z9807108 as recommended. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: PORT ST. JOHN BOARD AGENDA OF AUGUST 3, 1998

Item PSJ80801. Patsy J. Clark's request for Conditional Use Permit for Alcoholic Beverages for On-premises Consumption in a BU-1 zone on 0.56 acre located on the west side of U.S. 1, approximately 0.21 mile north of Fay Boulevard, which was approved by the Port St. John Special District Advisory Board.

Commissioner O'Brien stated Robert Beals has been his attorney in the past, but there is no conflict of interest.

Robert Beals, Attorney representing the applicant, stated the property is zoned BU-1; the Contract vendee is Mr. Hoffman who owns and operates Dogs "R" Us in Titusville; and the proposed use of the property will be a restaurant, which is permitted under BU-1. He stated the request for a Conditional Use Permit relates to the serving of beer and wine at the restaurant; it will be a 70-seat family style restaurant with parking on-site; there will be no bar; and the beer and wine would be approximately 20% of the volume gross sales. He advised the request received the unanimous approval of the Port St. John Special District Advisory Board, but there are some people with an objection to the CUP. He stated the request meets the criteria and is consistent with property on U.S. 1 to be developed as BU-1.

Kathryn Smith read aloud a letter and petition requesting denial of the request for CUP. She advised of potential problems with traffic, noise, sale of alcoholic beverages other than wine and beer, and drinking and driving; and submitted the petition.

Barbara Ketchum commented on the impact of various businesses on Haverhill Road; and described the area. She stated the residents of Haverhill Road want the traffic to stay on U.S. 1; and requested the wall be closed so there is no exit or entrance to Haverhill Road.

Commissioner Scarborough advised the request before the Board is for a conditional use permit; and inquired how the alcoholic beverage issue relates. Ms. Ketchum described potential problems with intoxicated drivers. Commissioner Scarborough stated he will be glad to meet with Ms. Ketchum and her neighbors concerning the wall; but if credible evidence is not given this evening to show why a CUP for alcoholic beverages should not be granted, the Board will be required to grant it. Commissioner Scarborough inquired if Ms. Ketchum is opposed to the request for CUP for alcoholic beverages; with Ms. Ketchum responding she is opposed because it is too close to residential.

Betty Yates stated she is opposed to another restaurant/bar in Port St. John; and expressed concern about the effect on young people, traffic congestion and noise.

Chairman Voltz inquired if Ms. Yates is aware that the developer could put in a 7-Eleven or a variety of other uses with the current zoning. Commissioner Scarborough reiterated the Board's need for evidence concerning the CUP for alcoholic beverages.

John Mitten, Pastor of Victory Baptist Church, objected to the CUP for alcoholic beverages based on the potential for intoxicated drivers and attraction of a sports bar to youth; and submitted police records from 1996 to August, 1997 for the existing Dogs "R" Us.

Robert Smith submitted a map of the area; and objected to the CUP based on traffic impacts.

Mary Tees, President of the Port St. John Homeowners, stated the general membership has not taken a position on this issue; commercial development belongs on the front of Port St. John; but the area along Haverhill is a prime reason for buffers.

Mr. Beals stated he respects the sincerity of the citizens who have spoken, but the legal relevance to the issue this evening is not there.

Commissioner Scarborough stated he will move to deny based on incompatibility.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to overrule the Planning and Zoning Board and deny Item PSJ80801. Motion carried and ordered unanimously.

The meeting recessed at 9:09 p.m. and reconvened at 9:19 p.m.

Item PSJ80802. Michael A. & Georgeanne Vendlinski, et al's request for Expansion of Mixed Use District Boundary and change from RU-1-7 to BU-1 on 1.3 acres located on the northeast corner of Palm Street and Manth Avenue, which was approved for Expansion of Mixed Use District by the LPA, and approved for Expansion of Mixed Use District and change of zoning by the Port St. John Special District Advisory Board.

Rodney Honeycutt, Attorney representing the applicant, stated the request is to change from RU-1-9 to BU-1. Chairman Voltz advised the current zoning is RU-1-7; with Zoning Official Rick Enos responding it is RU-1-7, but they are similar. Mr. Honeycutt stated there is an expansion of the Mixed Use boundary and the BU-1 rezoning; and displayed a map showing existing Mixed Use, Residential, and park property. He stated there are seven lots with six lot owners who are petitioning for the rezoning; the Mixed Use line is parallel with U.S. 1; and 40 to 50% is in the Mixed Use District, but the remainder is not. He stated the Port St. John Board approved the Mixed Use District expansion and the rezoning; the rear of the seven lots abut an existing BU-1 zone; and pointed out a triangle area on the map for which an application has been approved for BU-2 for mini-warehouses by the Port St. John Board. He stated the lot owners have been approached by the owner of the property adjacent to U.S. 1 about purchasing their property; development is restricted; it is better to develop the lots as commercial; and none of the owners have opposed it. He stated development of the property is imminent; and when it is done, it will be to the rear of the property with a 15-foot buffer as required by the County. He stated bringing the seven lots into the commercial district will allow a 50-foot right-of-way as well as the buffer between commercial and residential. He requested the Board approve the Mixed Use District expansion and the rezoning.

Michael Vendlinski pointed out his lot on the map; and advised of his ownership of the property since January, 1991. He stated when he bought the house he thought he was moving to a residential area; but this property's use has become commercial. He stated when he moved there, the property shown on the map in purple was residential; in 1993 or 1994 the Board rezoned property BU-1 right up to his property line; and pointed out the BU-1 areas. He stated they were against the rezoning and wanted to get rid of BU-1; but Port St. John is becoming a little town with Publix, Wuesthoff, Family Drug Mart, etc. developing. He stated they were approached to sell their property for commercial; and he talked to the neighbors. He stated the biggest complaint was they wanted a buffer; they did not get a buffer when the property went to BU-1; the property owner can do what they want with the drainage ditch; and he does not have a drainage ditch on most of his lot. He stated this is an opportunity for Port St. John to develop the community; and outlined possible development.
Commissioner Cook inquired if Mr. Vendlinski believes it would enhance the neighborhood; with Mr. Vendlinski responding affirmatively.

Mr. Vendlinski advised of drawbacks of living on his property including lack of buffer, noise impacts, and traffic problems. He requested the Board get the proper buffer for the neighbors because they do not have it now. He stated he is present to get relief; and it can be developed nicely.

Commissioner Scarborough stated in 1996 there was a similar item; at that time he received a petition; and inquired if Mr. Vendlinski can identify signatures seven and eight; with Mr. Vendlinski responding they are his and his wife's. Commissioner Scarborough requested Mr. Vendlinski explain his change of feeling. Mr. Vendlinski stated in 1996 the neighborhood thought it could keep the area as residential; in the last three years, Publix and other buildings went up; and they are tired of fighting it. He stated all of U.S 1 is going to be commercialized; and this is an opportunity for the neighborhood. Commissioner Scarborough stated commercialization of U.S. 1 is on the way; and the question is how far back.

Mary Tees, President of the Port St. John Homeowners Association, stated Mr. Vendlinski was opposed to any kind of change in the area, but when the money train comes, it changes things. She pointed out the area in question; and advised some homes have no buffer.

Commissioner Cook noted there is a 50-foot right-of-way. Ms. Tees stated they have the right-of-way which is the same as what the people on Haverhill Road have now; and that is the problem. She stated they were promised a buffer, but did not get it; this is the perfect place for RP; and requested the Board step down the zoning. She stated commercial belongs on U.S. 1; RP would be the perfect buffer; and explained the advantages of RP zoning in the area. Commissioner Cook stated it may or may not be financially feasible to do that; and he does not know how the people are going to get rid of their homes. Ms. Tees stated there are three homes there and four empty lots. Commissioner Cook inquired how they will sell homes backing up to a 15-foot commercial buffer; with Ms. Tees responding RP can move as well as commercial. Ms. Tees pointed out the area proposed for the storage area; and stated if the storage area goes in, RP is the perfect step down to the residential area. Commissioner Cook inquired about having the 50-foot buffer and putting an additional buffer on the property being bought. Ms. Tees stated the buffers do not work, and RP is needed there; the streets are narrow; the houses are close to the streets; and recommended the Board look at the area. She stated the area is not conducive to having a buffer with commercial against it; there is already a storage area proposed to come in; and even if a major retailer came in, there would be plenty of area for the building, parking and retention, while protecting the people in the area. Commissioner Cook noted none of those people are present tonight. Ms. Tees stated they do not come because they know she is here. Commissioner Cook stated if this was approved by the Port St. John Advisory Board and he lived across the street and was concerned, he would be here. Ms. Tees stated it is the same as with the people who were worried about the antennas on Homestead and Adele; none of them were here tonight; and people just do not come to the meetings. Chairman Voltz stated if the people were really concerned about their property values, they would have come. Ms. Tees noted the lack of attendance at the meeting about the area code.
Commissioner Scarborough displayed a map; and inquired about the black line; with Ms. Tees responding that is where they want to put the 15-foot buffer. Commissioner Scarborough stated it is a drainage ditch; and inquired if Ms. Tees has been to the property; with Ms. Tees responding affirmatively. Commissioner Scarborough stated the ditch is the line of demarcation.

Mitchell Goldman, Attorney representing the applicant, stated a lot of times there is discussion about what the neighbors want; and none of the neighbors are here because they are in support of the rezoning. He stated the people who are immediately affected by the proposed zoning change are not opposed to it; and the Board should take that into consideration in reaching its decision.

Commissioner Scarborough stated he was in the area when Publix went in; one of the things that was apparent was the nature of the drainage ditch as a buffer; and when this item came up the last time in 1996, he visited the area. He stated if the Board approves the rezoning, the argument could be to move it all the way down, and then there would be a residential street servicing a commercial area; and that argument can be extended repeatedly. He stated his observation is the area uniquely has a buffer with the ditch; to move beyond the ditch to the single family street, there will be people using the street for homes and commercial; and then there will be the Haverhill Road environment. He stated he does not like the idea whether the people are here or not; he does not know what influenced Mr. Vendlinski's change; Mr. Vendlinski wants to lead the neighborhood; and the ability to move through a rezoning may be motivating some of his thoughts. He stated he does not know why the neighbors are not here, but they are not.

Mr. Goldman stated the 1996 item was just two lots on the end; he was the applicant; and neighbors including Mr. Vendlinski spoke against him. Commissioner Scarborough stated at that time they were not buying Mr. Vendlinski's lot, but now they are; with Mr. Goldman advising he is not buying that lot. Commissioner Scarborough stated he will be able to liquidate his lot; and he is not impacted by it, but will benefit from it. Mr. Goldman stated Mr. Vendlinski and his neighbors perceive a benefit; the logical way to develop the parcel is commercial; it is on the fringes of the Port St. John District; and the properties shown on the map in yellow would be the logical place for a buffer and retention area. Mr. Goldman stated Mr. Vendlinski is not protected by the ditch; his property sticks out like a sore thumb; and the ditch runs behind the other lots making it even less appealing for a residential neighborhood.

Commissioner O'Brien stated he agrees with Commissioner Scarborough; the street does run down the ditch for an extended length; but he is concerned that in spite of notification, he has not received letters saying not to take this action and no one showed up. He stated if there were hard feelings in the neighborhood, people would be present; but there are no objections; and even the Port St. John Advisory Board recommended approval.

Commissioner Cook stated the last time it came up, his concern was it was just two lots; and he may have commented that it would have made more sense if it was the whole section. Commissioner O'Brien noted the last time it was only the lot on the corner. Commissioner Cook stated the Port St. John Board voted for approval; the property owners most affected across the street have not even written a letter in opposition; and inquired if the applicant would be willing to stipulate there would be no access from the street. Chairman Voltz recommended bringing the access to the east of the property; and inquired if it would be possible to move the ditch to the west. Mr. Goldman responded with regard to the road, it makes sense. Commissioner Cook stated it would be added protection to the people who live there that the road could not be used. Commissioner Scarborough stated he is going to challenge the Board on what it is doing; the ditch is huge; it will be difficult to do anything; and what the Board will end up with is a long piece of property that is not going to be connected to the other property; and it is not going to be feasible without immense expense. He stated the only way to economically develop the property is to have access; Titusville would not allow any commercial operation to access from a residential street so it would not run into a Haverhill Road situation; and the property has value for development only if the residential street is used. Commissioner Cook stated he agrees there should not be access off a residential street. Chairman Voltz advised they could put a culvert in. Commissioner Scarborough stated it would not be economically feasible; with Commissioner Cook advising that is up to the applicant. Commissioner Higgs noted the proximity to the residences, and stated it does not make sense to make it commercial. She inquired if the applicant is willing to do a binding development plan stipulating no access from the residential street; with Mr. Goldman responding yes. Mr. Goldman stated he can only speak for the frontage of the seven lots on Manth Avenue. Commissioner Scarborough noted Palm is also a residential street; and there is no access to the property except from U.S. 1. Mr. Goldman stated Palm Avenue is also used to access Publix. Commissioner Higgs inquired if the property would be developed as one big parcel fronting U.S. 1; with Mr. Goldman responding yes. Commissioner Higgs inquired if the applicant would agree in a binding development plan to the lots being used as buffer or retention; with Mr. Goldman responding he cannot do that at this time, but it seems to be the way to develop it. Commissioner Cook inquired if the intent is for the access to come from U.S. 1; with Mr. Goldman responding yes, from U.S. 1, Kings Highway and Palm.

Commissioner Scarborough inquired if Mr. Goldman is sure about the location of Publix; with Mr. Goldman responding affirmatively.

Discussion ensued as Mr. Goldman and the Commissioners looked at the map.

Chairman Voltz noted there is already an access from a residential street. Commissioner Cook inquired if Mr. Goldman would commit to a buffer. Mr. Honeycutt stated right now there is a drainage ditch; there is a 50-foot easement; but it is not a major ditch. Commissioner Scarborough advised it is a major ditch. Mr. Honeycutt stated if access is restricted and the County requires a 15-foot buffer, the only choice is to use the property for stormwater management which would make the other site more usable. Mr. Honeycutt pointed out various areas on the map.

Commissioner Scarborough inquired if there is no access on Manth Avenue; with Mr. Honeycutt responding he agrees to no access on Manth Avenue from the lots, but other property owners cannot be restricted. Commissioner Scarborough advised how the City of Titusville dealt with access to commercial, and the precedent of using residential streets for commercial access. He inquired if Mr. Honeycutt can agree to no Manth Avenue entrance to the property; with Mr. Honeycutt responding the seven lot owners cannot say that other property owners may not have that, but the seven owners can agree to it. Commissioner Higgs stated it would be subject to the rezoning. Mr. Honeycutt stated they would submit a binding development plan subject to the rezoning for no access; unless the Board vacates the ditch easement, there could not be any development; but it would make a nice area for stormwater management so the rest of the site could be used to develop; and that would keep the development on U.S. 1. Commissioner Scarborough stated as long as development is on U.S. 1, traffic is not going in there, and there is an adequate buffer, it makes some sense; expressed concern about jumping the ditch; and advised the ditch gives a feeling of separation from the heavier use. Mr. Honeycutt stated Publix put the stormwater management in that area as well; with Commissioner Scarborough advising the people next to the ditch were impacted; and there was trouble with trucks coming at odd hours. Commissioner Scarborough expressed concern about jumping the ditch; but advised he is willing to table the item to look at it further including walking the property again.

Commissioner O'Brien stated what he hears is they want the ditch for stormwater retention; and described how the property is proposed to be used. Commissioner Scarborough stated an applicant earlier was requesting another portion be rezoned, so they do not control it; and inquired what is the value of it. Chairman Voltz stated it can still be used for retention, and then develop in front.

Discussion ensued on the area, stormwater retention, previously tabled item, and need for additional information.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to table Item PSJ80802 to September 24, 1998. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ADMINISTRATIVE REZONING AGENDA OF JULY 6, 1998, ITEMS 12, 13, 14, AND 15

Chairman Voltz called for the public hearing to consider Administrative Rezoning Agenda of July 6, 1998, Items 12, 13, 14, and 15, as follows:

Commissioner Cook inquired if there was any objection to any of the administrative rezonings; with Zoning Official Rick Enos responding no.

Item 12. Section 15, Township 29, Range 38, Parcel 1, and Section 23, Township 29, Range 38, Parcels 2, 252, and 503, and Section 26, Township 29, Range 38, Parcel 250, owned by Brevard County and St. Johns River Water Management District, from EA, RU-1-11, RU-1-13, and RU-2-4 to GML(P), excluding EA zoned portions, which were recommended for approval by the P&Z Board.

Motion by Commissioner Higgs, seconded by Commissioner Cook, to approve Item 12 as recommended. Motion carried and ordered unanimously.

Item 13. Section 6, Township 30, Range 39, Parcel 265, and Section 7, Township 30, Range 39, Parcel 755, and Section 17, Township 30, Range 39, Parcels 250 and 261, and Section 20, Township 30, Range 39, Parcel 1, owned by Brevard County, State of Florida IITF/Maintenance Camp, State of Florida IITF/Mail Station 115, and State of Florida IITF/Division of Recreation and Parks, from EA, GU, BU-2, and RU-2-4, to GML(P), excluding EA and GU zoned portions, which were recommended for approval by the P&Z Board.

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

Item 14. Section 6, Township 30, Range 39, Parcel 502, owned by Judith Kittle Kennedy, from RU-2-4, GU and EA to RR-1 excluding EA and GU zoned portions, which was recommended for approval by the P&Z Board.

Motion by Commissioner Higgs, seconded by Commissioner Cook, to approve Item 14 as recommended. Motion carried and ordered unanimously.

Item 15. Section 14, Township 29, Range 38, Parcels 507, 513, 514, 518, 519, 520, 521 and 522, and Section 18, Township 30, Range 39, Parcel 1, owned by State of Florida IITF/Department of Environmental Protection, Brevard County, and State of Florida IITF/Maintenance Camp, from EA, RU-1-11, RU-2-4, RU-2-6 and BU-1, to GML(P) excluding EA zoned portions, which were recommended for approval by the P&Z Board.

Motion by Commissioner Higgs, seconded by Commissioner Cook, to approve Item 15 as recommended. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD SPECIAL AGENDA OF AUGUST 17, 1998

Chairman Voltz called for the public hearing to consider the recommendation of the Planning and Zoning Board made at its August 17, 1998 Special Hearing, as follows:

Item 1. (Z9809201) Thanh D. Ngo and Lien K. Pham's request for Conditional Use Permit for Alcoholic Beverages On-premises Consumption in a BU-2 zone on 1.5 acres located on the east side of South Banana River Drive, approximately 200 feet south of S.R. 520, which was approved by the Planning and Zoning Board.

Commissioner O'Brien stated he has no problem with the item; and inquired if this is the location of the old crab house; with Mr. Spielvogel responding yes, it was Island Crab. Commissioner O'Brien stated there is plenty of parking; and described the location.

There being no further comment, motion was made by Commissioner O'Brien, seconded by Commissioner Scarborough, to approve Item Z9809201. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING CHAPTER 62, ARTICLE VI, DIVISION 5, SUBDIVISION 3, SECTIONS 1936, 62-1331(3), 62-1332(3), 62-1333(3), 62-1334(3), 62- 1334.5(3), 62-1572(3), AND 62-1335(3), LAND ALTERATIONS

Chairman Voltz called for the public hearing to consider an ordinance amending Chapter 62, Article VI, Division 5, Subdivision 3, Sections 1936, 62-1331(3), 62-1332(3), 62-1333(3), 62-1334(3), 62-1334.5(3), 62-1572(3) and 62-1335(3), Land Alterations.

Commissioner Cook stated the LPA recommended approval with the stipulation that the maximum acreage remain as it is currently; and if no one objects, he will make a motion to adopt the ordinance.

Commissioner Higgs stated she objects; 30 acres is reasonable; 50 acres is too much; and she would prefer to go back to the 30 acres.

Chairman Voltz read aloud Section 2(f) limiting hours of operation to between dawn and dusk; stated she has a problem with the hours always being different; and inquired what if the property is not near residential. Commissioner O'Brien noted in that case no one would be there to complain about it; but no good construction company would be using bulldozers in the dark. He stated the restriction will not keep the good contractor from doing his job; and explained why such restriction is necessary. Charles Moehle, representing Modern Inc., stated he owns or represents approximately 4,000 to 5,000 acres in the County; the changes up to Section E are fine; but Section E is a problem because it limits activity to direct access to collector or arterial roads. He stated this moves the activity into a more congested area where there are people as opposed to the possibility of it being out in the country; and a rock crushing activity is noisy.

Commissioner Cook advised of an activity off Martin Road, which is not a collector or arterial road; and stated under the proposed ordinance it could not have been done.

Commissioner Higgs stated her concern is there is so much AU that is residential; and properties could be considered that are really on residential roads.

Commissioner Scarborough stated the problem is not just the onsite operations but the heavy equipment running up and down by people's homes. Mr. Moehle stated the Board is being very restrictive but not accomplishing what it really wants to which is to move the potentially noisy and obtrusive activity away from people; and suggested the Board consider different restrictions for agricultural activities. Commissioner Scarborough stated the definition for the location for activity is okay; but the dust from the heavy equipment creates problem miles away; and there may be arterial roads where traffic is not wanted. He advised of his attempts to site a Class 3 Landfill in North Brevard and the opposition to it; and stated it is similar to Barefoot Bay not wanting trucks through its area. He stated he does not mind continuing the public hearing; and how the equipment gets to the site is just as critical as the buffering. Commissioner O'Brien stated this is the first of two public hearings; with Commissioner Scarborough advising it is the second public hearing.

Commissioner O'Brien stated the proposed ordinance says the land alteration activity must be located with direct access to collector and arterial roads; but if someone wished to build a rock crushing operation west of the Justice Center, there are no arterial or collector roads to hook to.

Commissioner Higgs suggested referencing a haul route as opposed to talking about arterials and collectors; with Chairman Voltz agreeing that would be a good idea, and it should be site specific. Commissioner Scarborough noted the lateness of the hour; and suggested Mr. Moehle work with staff, and the Board consider the ordinance at a future time. Mr. Moehle stated he would be glad to do so.

Mr. Moehle stated limiting activity from dawn to dusk is conceptually fine, but at certain times of the year dusk is at 5:00 p.m. and this will close businesses down. Commissioner Cook stated it could be to someone's benefit because they could work until 8:00 p.m. during the summer months. Mr. Moehle advised such an operation would normally close around 6:00 p.m.

Chairman Voltz stated she and Mr. Enos discussed this. Zoning Official Rick Enos stated one of the concerns was what happens when the operation is nowhere near residential uses; and suggested saying any land alterations within "x" feet of residential would have a time limitation. Commissioner O'Brien suggested removing the sentence and adding that when the Board hears the request for CUP, it will discuss the times depending on the size and type of operation; and stated if the operation is next to residential, it should not be crushing rock before 8:00 a.m. or after 5:00 p.m.

Discussion ensued about dawn to dusk time limitations, Noise Ordinance, site specific limitations, and business hours.

Mr. Moehle read aloud from the proposed ordinance concerning concurrent applications; stated he is not sure of the motivation; but it is a burden which does not accomplish anything.

Discussion ensued on concurrent applications, circumventing the regulations, getting the information on the concept to begin with, letting the residents know what will be happening, provision not solving the problem, applications on same parcel, and a Micco operation.

Mr. Moehle inquired if the intent is to limit it to the 50-acre parcel maximum; stated someone with a 1,000-acre property could come in and request 200 land alteration permits; and that does not help the problem. He stated it is burdensome for someone who wants to do a legitimate thing, but does not accomplish what the County wants.

Commissioner Higgs stated staff will work on it.

Mr. Moehle advised of the proposed acreage requirements and the LPA recommendations; stated they all should be left at 50 acres because all the uses are consistent; and it is arbitrary to go from 10 to 30 to 50, etc. He stated some other restrictions may need to be added; however, they are all the same type of use; and size has little to do with the problems.

Chairman Voltz suggested Mr. Moehle meet with Mr. Enos to go over the issues to see if something can be worked out. Commissioner O'Brien requested Mr. Enos get together with Mr. Moehle.

Commissioner Higgs stated on page 2, Item C, it says "which are developed residentially"; and suggested it be changed to "AU and GU zoned properties which are not owned by the applicant" and not talk about it being developed or not developed. Commissioner Cook stated staff can look at that, but there could be large tracts of undeveloped properties that would not be impacted. Commissioner Higgs stated there have to be some protections for undeveloped property owners. She stated there have been discussions with borrow pit owners concerning Sunday restrictions, and this may be an appropriate place to put it in.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to continue the public hearing to consider an ordinance amending Chapter 62, Article VI, Division 5, Subdivision 3, Sections 1936, 62-1331(3), 62-1332(3), 52-1333(3), 62-1334(3), 62-1334.5(3), 62-1572(3), and 62-1335(3), Land Alterations to September 24, 1998. Motion carried and ordered unanimously.

Mr. Enos inquired if he is being asked to make the changes of Commissioner Higgs; with Chairman Voltz responding affirmatively.

PUBLIC HEARING, RE: ORDINANCE AMENDING CHAPTER 62, ARTICLE VI, SECTION 62-1842, SEATS IN SNACK BARS AND RESTAURANTS IN BU-1-A ZONING CLASSIFICATION

Chairman Voltz called for the public hearing to consider an ordinance amending Chapter 62, Article VI, Section 62-1842, seats in snack bars and restaurants in BU-1-A zoning classifications.

Anthony Infantini stated he requested the change from 30 to 49 seats in BU-1-A zone for snack bars and restaurants, with all the same requirements for septic tank, parking, etc.; and he supports the staff and LPA recommendations.

There being no further comments, motion was made by Commissioner Scarborough, seconded by Commissioner O'Brien, to adopt an Ordinance amending Chapter 62, "Land Development Regulations," Code of Ordinances of Brevard County, Florida; amending Article VI, Section 62-1842 to increase the maximum number of seats in a snack bar/restaurant in the BU-1-A zoning classification; providing for conflicting provisions; providing for severability; providing for area encompassed; providing an effective date; and providing for inclusion in the Brevard County Code. Motion carried and ordered unanimously.

Upon motion and vote, the meeting adjourned at 10:23 p.m.

HELEN VOLTZ, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS

SANDY CRAWFORD, CLERK
BREVARD COUNTY, FLORIDA
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