The Board of County Commissioners of Brevard County, Florida, met in regular session on February 3, 2000, at 5:36 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Nancy Higgs, Commissioners Truman Scarborough, Randy O'Brien, Sue Carlson, and Helen Voltz, Assistant County Manager Peggy Busacca, and Assistant County Attorney Eden Bentley.

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

REPORT, RE: WEST CANAVERAL GROVES

Chairman Higgs stated the West Canaveral Groves discussion will come back to the Board; and there should be discussion about drainage in the road report.

Commissioner Scarborough stated the question was raised about the right road funding; and if it cannot be done in two weeks, there is no problem waiting a week or so.

Commissioner O'Brien stated Dick Gregory was upset with the outcome, but it is a complicated issue; and the Board wants to do the right thing.

Chairman Higgs stated the Board has heard comments for over two years, and will hear more when it comes back.

ZONING ITEMS, RE: WITHDRAWN OR TABLED

Chairman Higgs inquired if there are items to be withdrawn or tabled.

Zoning Official Rick Enos advised Item II.A.1 and II.A.3 have been withdrawn, and there has been a request to table Item II.B.1. Commissioner Scarborough inquired if it is automatic tabling; with Mr. Enos responding no. Commissioner Scarborough inquired if people are present with interest in Item II.B.1; with three individuals indicating their interest. Mr. Enos advised of a request for variance. Commissioner O'Brien stated he does not wish to deny the public the right to speak.

PUBLIC HEARING, RE: TABLED ITEMS OF NOVEMBER 1, 1999 PLANNING AND ZONING HEARINGS

Chairman Higgs called for the public hearing to consider tabled items of the November 1, 1999 Planning and Zoning hearing, as follows:

Commissioner O'Brien advised of the rules and procedures for zoning items.

Item 1. (Z9911203) Mitchell S. Goldman, as Trustee's request for removal of a Binding Site Plan in an RU-2-15 (11.9) zone on 2.05 acres located approximately 240 feet south of the western terminus of Butler Avenue, which was recommended for approval by the P&Z Board subject to severance of the site plan. Withdrawn by applicant.

Item 2. (Z9911501) Rosemary Fondong's request for a Mixed Use District Boundary Expansion (to 350 feet) and a change from RU-2-10 currently having a Binding Site Plan to BU-1 and removal of the Binding Site Plan on 2.45 acres located on the northwest corner of U.S. 192 and Gray Road, which was recommended for denial of the MUD by the LPA and recommended by the P&Z Board for approval of BU-1 with a Binding Development Plan with no access onto Gray Road and applicant to meet with adjacent homeowners to resolve any buffer issues.

Steven Harp stated he, Dave Menzel, and Chris Soave are present to represent the applicant; and they are requesting a zoning change on a portion of a 7-acre parcel. He stated Dave Menzel has put together a site plan showing how the prospective buyers would like to develop the portion of the property. He advised in the Planning and Zoning meeting, it was suggested the applicant meet with residents to discuss their concerns; they attempted to meet with the residents and offered to go to their residences; however, that was met with resistance.

Dave Menzel stated the request is for 300 feet which is equal to the 300 feet currently zoned commercial on the other side of the street; and the plan is for a retail center of slightly less than 21,000 square feet. He advised of offers to buffer and build a wall, presence of a fire lane, and loading and unloading procedures. He stated one of the issues that came up was the elimination of the entrance on Gray Road; Gray Road currently has a curb cut which allows people to make a left into the center without making a U-turn; and the layout allows a tractor-trailer to enter Gray Road, come into the center, pull around to the front or back, and then come out. He described the consequences of any other access; and stated the request for entrance on Gray Road is not unusual, and the applicant is not asking for anything more than exists across the street. He pointed out an area, which will be a multi-family site; and requested the retention and septic system be inclusive in the development, so the two would share that on the back parcel. He stated Mr. Harp did try to contact the residents, but it did not work. He stated FDOT will allow the right in/right out; and they are not asking for anything more than what is reasonable to properly access the site and not cause a major traffic problem.

Mr. Harp stated they tried to address the concerns of the two individuals who expressed interest; and the design will alleviate any traffic problems and provide a buffer between properties.

Chris Soave, representing Rosemary Fondong, stated Ms. Fondong has owned the property for a number of years; her property taxes are $7,000 a year, and she needs to sell the property because she is ill; and Mrs. Wallace who opposes the sale pays $152 annual taxes. She stated if a shopping center goes onto the property, the County will be able to collect even more taxes. She stated nobody wants to live in an apartment on U.S. 192; so, this would create a buffer zone for the residents along Gray Road and Katherine Lane.

Helen Hotz and Joan Olmstead voiced objection to the rezoning based on traffic patterns, impact to streets, and character of the neighborhood.

Bob Wilmarth stated he is a real estate broker; and voiced support for the rezoning based on the appropriateness of a commercial development on the site, development of U.S. 192 frontage as commercial, and improbability of someone wishing to build residential on the frontage of U.S. 192. He stated it is a good compromise in that there is commercial up front, and there will be additional buffering by putting the retention between the commercial and the multi-family.

A. Rodriguez voiced objection to the rezoning based on lack of City sewer and water service.

Geraldine Wallace submitted a petition; and voiced objection to the rezoning based on availability of other BU-1 zoned land, site location between two subdivisions, lack of parking, impact of dirt and dust, and lack of water and sewer service. She commented on the applicant's attempts to contact the residents.

Nick Beckey voiced objection to the rezoning based on site location between two subdivisions, character of the area, lack of barrier between residential and commercial, and cost to residents of converting to City water and sewer. He stated he wants a concrete wall between the residential properties and the development to block the noise and view; or suggested the residents could be bought out and the area could be made all business. He commented on the noise of 18-wheelers.

Tim Townsend voiced objection to the rezoning based on impact of 18-wheelers and danger to small children. He stated the applicant contacted him with an updated plan, but it still included access to Gray Road; and that is his biggest concern. He commented on the impact of traffic on the residential streets; recommended cuts be made to U.S. 192 as the Planning and Zoning Board recommended on November 1, 1999; and submitted a petition in opposition to the rezoning. He stated they should stay in the commercial corridor and not start expanding back; at the first meeting, the extra 50-foot extension was denied; and he does not know if the applicant still wants the extra 50 feet beyond the first 300 feet.

Chairman Higgs advised the application stands as it was submitted.

Charles Brashear stated eventually the parcel will be developed; but he does not like the idea of accessing into the subdivision. He commented on other development in the area including Kanes and The Dinette Store, and impact of a 14-unit strip mall on the residential area.

Winifred Austin read aloud a letter which was sent to the Zoning Office commenting on the danger of having the fireworks store in close proximity and impact of delivery trucks at The Dinette Store; and voicing objection to the proposed rezoning based on road congestion and danger to the neighborhood.

Perry Coleman stated he is a realtor; and commented on the prior rezoning for Lowes. He described the commercial development in the area; stated the applicant has tried to work things out with the residents; and commented on development of the remainder of the parcel as residential. He noted the truck problem is already existing, but the plan allows the trucks to come onto the property and go back out off U.S. 192, so they will not be going down Gray Road; described the development of the neighborhood center; and stated that is the future of U.S. 192.

Chairman Higgs inquired about sewers. Zoning Official Rick Enos responded he is not sure sewer is available to the property, but public water is available. Commissioner Voltz stated the concern is if they bring sewer and water, the residents will have to hook up; and that will not be the case. Mr. Enos advised there is water; and the City of West Melbourne has sewer, but it is approximately one-half mile away, and he does not know if the City would extend it to the site. Chairman Higgs requested the applicant clarify the request and deal with the issue of the fence more clearly.

Commissioner Scarborough stated larger sites should not be on septic tanks; and inquired if there is a methodology to set thresholds so commercial sites are not on septic tanks. Mr. Enos responded they would need a certain amount of area for the septic tank drainfield. Commissioner Scarborough stated the larger the commercial, the less likely the County wants them to build on septic tanks; with Mr. Enos responding he agrees. Commissioner Scarborough inquired if there are any parameters set in the Comprehensive Plan; with Mr. Enos responding he does not believe there is anything in the Land Use Element or the Zoning Code; most of it is State law; and he does not know how the State law would deal with a commercial project. Chairman Higgs stated if sewer is available, there is a requirement to hook up; and inquired if the County Attorney can comment; with Assistant County Attorney Eden Bentley responding she cannot give exact answers as it will depend on distances and that sort of thing. Commissioner Scarborough stated the Port St. John interchange has been opened; with that, there will be commercial; the property owner is going through discussions concerning options for putting sewer there; and he assumed that was occurring because of some requirement that there be sewer if a certain threshold of commercial was reached. Mr. Enos stated he believes there are requirements, but he does not know specifically what they are. Commissioner Scarborough stated if it is going completely commercial on U.S. 192, the Board is going to have to ask at what point will sewer be required; and cautioned of the danger of creating a U.S. 192 septic tank corridor.

Mr. Menzel stated the County's rules and regulations require a tremendous amount of square footage to create a septic tank; Lowes, which is 150,000 square feet, is on septic tank; and he is doing another project in the County which is a furniture warehouse, and the septic system is less than 1,000 square-foot of drainfield for a 30,000 square-foot facility. He stated the proposed project will be 14 small units; most will only require one bathroom; the front site could be developed as a 20-unit multi-family development; each unit could have two bathrooms and a kitchen; and each one would be tied to a septic system. He stated the amount of area they require will require certain setbacks from wells, property lines, and retention systems; the septic tanks should not be an issue; and there is no sewer there. He commented on the Melbourne and West Melbourne sewer capacity. He stated the applicant has seven acres and will develop the first 300 feet; the septic system will be put in the balance of the four-acre piece; and it will be much smaller than if it was multi-family. He stated water is available; and if they bring water to the site, he has never had to connect the neighboring residences. He stated they will put a wall between the residences and the property the entire length of the 300 feet; but to build a wall all 1,100 feet between what is going to be multi-family and residential is not necessary. He pointed out on the map where the wall will be located; stated it can be landscaped on the inside; and they are willing to make the wall as high as the County will allow. He stated what the people were saying about being bordered on both sides is not true; and pointed out the commercial and residential areas on the map. He stated one of the ladies complained about dirt; but that is from Sod Depot down the road; and they will have clean establishments. He stated they have provided enough access on the site for the trucks; and described the driveway and clear area in front of the building. He stated the problem across the street is due to the buildings being close to each other; if there is a parking problem there, that does not concern him; and the proposed site has plenty of room for any vehicle that is loading or unloading.

Mr. Harp advised of attempts to contact the two people who were in opposition; stated they were not interested in coming by to look at the plan; and when he offered to take the plan to them, it was refused.

Commissioner Voltz stated she has a problem with the site; and inquired about the location of the residents. Mr. Menzel pointed out the residences, wall location, and Sod Depot on the map. Commissioner Voltz suggested an alternative access; with Mr. Menzel explaining why that cannot be done. Mr. Menzel stated they tried to get a joint entrance with Sod Depot, but they were not interested; and FDOT will not permit two entrances on the property. Commissioner Voltz suggested shortening the median; with Mr. Menzel responding he doubts FDOT will allow that. He advised when the median is changed, it affects the street on the other side; it makes the turning lane too wide; it makes the drive to the center offset; and it results in cars turning in front of someone pulling out the other way. He stated the issue of putting it in on an angle came up with FDOT; but it cut through the corner of the Sod Depot. Commissioner Voltz stated she has been dealing with Ms. Wallace for the past three years; and she knows she has a problem with noise, dirt, and trucks from the Sod Depot. She stated the applicant has offered a five-foot buffer, which is really no buffer at all; and while she understands the applicant is going to put up a wall, she would propose not approving BU-1 for the entire parcel, but leave out 25 to 50 feet in the back to put the retention there, and do some reversal of the site plan. She stated that would put the retention area to the residents' back yards; and what they do not need is more truck traffic running between the wall the applicant intends to put up and the wall of the business that is there. Mr. Menzel stated putting the retention system to the rear would not solve the problem; but the wall could be moved in, and put the landscaped area on the other side of the wall. He stated the wall could be placed against the driveway instead of on the property line; the hedges and trees could be put on the five-foot area; and they would irrigate and take care of it in a natural state.

Commissioner Scarborough inquired if Commissioner Voltz understands the circular driveway for the trucks is five feet from the property line. Commissioner Voltz stated she is not sure; it says the developer shall provide a five-foot buffer on the west portion. Commissioner Scarborough inquired if the little area between the drive and the property line is the five-foot buffer; with Commissioner Voltz responding affirmatively. Chairman Higgs inquired if the wall is only on the west side. Mr. Menzel stated they could put a wall across the back of the property, but that would be putting a wall between common property which does not make any sense. Commissioner Voltz stated she agrees it does not make sense. Mr. Menzel stated portion of the wall may work to buffer the residents. Chairman Higgs inquired if Mr. Menzel is talking about buffering the residents on Gray Road; with Mr. Menzel responding no, they do not hit any residents on Gray Road; they are across the street from the furniture store; and the only residents that would be directly affected by noise would be the ones behind Sod Depot. He stated if they run the wall on the north side of the property 100 feet, that would provide enough screen for those homes that they would never see anything, and then they would run the wall the entire west side of the property. Chairman Higgs stated most of the people present live on Northern Oak Street, and they are concerned about the truck traffic. Mr. Menzel stated the truck traffic is not going to go past Northern Oak Street because the driveway is two-thirds of the way back; and pointed out the truck route on the map. He stated the concern of those residents is trucks parked for another business; he cannot do anything about that; and described the loading/unloading area of the site. Commissioner Voltz inquired if there is any way to flip it so the back of the building does not back up onto their properties. Mr. Menzel advised if it reverses it, all the noise on the front will be facing the closest residents, and it will mean feeding a 20,000-square foot retail center with a right in/right out access, which will result in a traffic jam on U.S. 192. Commissioner Voltz stated she is concerned about the truck traffic. Mr. Menzel stated the residents have not seen the new plan; the original plan showed an intersection; and explained the compromise that was reached. Chairman Higgs stated it will not be possible to work these details out at this meeting.

Commissioner Carlson inquired if the picture assumes a 300-foot setback; with Mr. Menzel responding yes. Commissioner Carlson inquired where will the retention area go; with Mr. Menzel responding it will go in the center; it will be wet pond; and the multi-family will go around it. He stated the design of the pond would take a certain percentage of the impervious in the future design of the multi-family project and the proposed retail center; and the septic system would be directly behind the building in an area that meets all setback requirements. Commissioner Carlson inquired if the septic system is outside the zoned area; with Mr. Menzel responding it is outside the 300 feet, and in the multi-family area. Commissioner Carlson inquired if the intent is to encumber the multi-family parcel with septic and the retention area; with Mr. Menzel responding they will use the septic system for the multi-family development also.

Chairman Higgs inquired if they can do that; with Zoning Official Rick Enos responding he is not sure they can in terms of the septic tank; but as far as the retention area, the County requires all services and facilities be on the site that is zoned commercial. Mr. Enos stated on a few occasions in the past the Board has permitted a joint retention area between commercial and residential projects; and if the Board permits that, he has no objection. Chairman Higgs stated that would be a stormwater issue, not a septic tank issue; and there are specific State laws regarding septic tanks. Assistant County Attorney Eden Bentley stated there are Administrative Codes, and she would have to look at those. Assistant County Manager Peggy Busacca stated the setback between a water body and a septic tank is 75 feet.

Commissioner Scarborough commented on provisions when doing a lot of commercial to go to a sewer system; and inquired about the designation of Gray Road; with Mr. Enos responding it is a local road. Commissioner Scarborough stated when the Board was considering the Lowes site, it was looking at Minton Road; and inquired about its designation; with Mr. Enos responding it is an arterial road. Commissioner Scarborough inquired if there is a difference in how they are dealt with; with Mr. Enos responding yes, and Lowes is at a major arterial intersection. Commissioner Scarborough inquired within the Code does the County specify commercial activity off the two types of roads; with Mr. Enos responding not to his knowledge. Commissioner Scarborough stated the Board does not want to direct commercial truck traffic down local streets. Commissioner O'Brien noted Lowes bought all the properties behind it; with Commissioner Scarborough responding Lowes worked it out with the neighbors and took care of all the problems. Commissioner Scarborough stated there can be all kinds of configurations; U.S. 192 is difficult; and the Board may want to be assured there is not circular truck traffic coming in the rear of properties on residential streets.

Commissioner Voltz stated she does not know what the timeframe is for the project, but there are a lot of details to be worked out; and suggested continuing the public hearing for 30 days because otherwise it will probably be denied.

Ms. Soave stated Ms. Fondong has been trying to sell the property for a while, she is very ill; she lives in Ohio; and she will have to ask her because she depends on this money. She inquired if the Board would really deny the rezoning because it is simple. Commissioner Voltz stated there are some things that need to be worked out. Ms. Soave and Mr. Menzel agreed to continue the public hearing for 30 days.

Commissioner Voltz stated she will set up a meeting with the developer and the residents in her office. Chairman Higgs suggested staff should also be present because if the developer is planning a septic tank that cannot go where they plan, they need to know now.

Motion by Commissioner Voltz, seconded by Commissioner O'Brien, to table Item 2. (Z9911501) to March 2, 2000. Motion carried and ordered unanimously.

Item 3. (Z9911502) Robert G. Currie's request for a CUP for Additional Building Height (total height-68.64 feet) in an RU-2-15 zone on .083? acre located on the east side of Highway A1A, approximately 100 feet south of Ocean Oaks Drive. Withdrawn by applicant.

PUBLIC HEARING, RE: PLANNING AND ZONING RECOMMENDATIONS OF JANUARY 10, 2000

Item 1. (Z0001101) Walter and Theresa Johnson's request for change from SEU with a CUP for Horses and Barn to RR-1 on 5 acres located on the west side of South Carpenter Road, approximately 0.17 mile north of Rambling Acres Drive, which was recommended for approval by the P&Z Board with a BDP, limited to one horse per acre, existing home to be on three-acre parcel, and one additional home with 2,000 square-foot minimum living area on the two-acre parcel.

Chairman Higgs inquired if the applicant is present; with no response heard.

Glenn Dunn stated he is opposed to the rezoning and does not want his children around horses. He stated he had no knowledge that the property was zoned with a CUP; it is ludicrous to bring a rural lifestyle among the homes that are established in the area; there is nothing around that is Rural Residential; and his concern is what will happen when the property is no longer owned by the Johnsons. He stated it is his understanding houses that would be much smaller than the surrounding houses would be allowed; he will hire an attorney if necessary; and inquired if there would be a more lenient building situation if it moves to Rural Residential. Commissioner Scarborough provided a copy of the staff analysis to Mr. Dunn.

Commissioner Voltz stated the Board could limit it to two homes so nothing more could be put on the property. Mr. Dunn stated he does not see that from what was passed; with Commissioner Voltz responding the Board could do that. Mr. Dunn stated this was probably zoned with the CUP prior to many other houses being built around it; so the CUP is outdated.

Chairman Higgs stated Commissioner O'Brien did not imply that an attorney was needed; but the Board must weigh the facts; if the Board does not do that, those people who do not get the zoning they want may sue the Board; and then the Judge may overturn the zoning. Commissioner Scarborough stated the Board can consider the zoning of the surrounding properties. Mr. Dunn inquired about exceptions; with Chairman Higgs responding there are circumstances where the Board can work with the applicant to have a binding development plan that would limit development with the zoning category.

Margaret Kinslow stated she lives directly across from the property; and she was shocked that the Planning and Zoning Board voted unanimously to approve the rezoning after having six adjacent property owners object. She stated she was not present to speak against the raising of a horse pasture by natural debris in her neighborhood; and now she lives with the result which is called the Delta Dump. She stated now she is told the neighborhood is being downgraded to RR-1.

Commissioner Scarborough stated the County did not put the application in; Mr. Johnson applied to rezone his property; and the Board is considering that application.

Ms. Kinslow stated the Planning and Zoning Board recommended approval by a unanimous vote of RR-1; the way it originally stands is that no horses would be on acreage of less than five acres; and that makes sense. She stated the CUP that allowed the barn and horses on the property was granted before most of the houses around it were built; but the area is much more densely populated now; all of the houses around the property are at least 3,000 square feet and up to 15,000 square feet; so this is not a rural area. She stated the request is to downgrade this so horses would be allowed on two acres and a barn would be built; but when Dwight Severs was living on the property he did not request RR-1, and it was much more rural at the time. She stated she owned a horse for two years; she has over an acre of land; and she would never have considered asking for RR-1 because that is not the character of the neighborhood. She requested the zoning be denied, and five acres be required to have horses and barns.

Bob Graveline stated his property abuts the subject property; and advised of differences in elevation, drainage problems, and the impact of horses. He expressed concern about the flies, noise, and odor that could be caused by up to 20 horses; and requested the item be denied. He submitted paperwork.

Ronald Robinson stated when he moved to the area, he had no idea anything of this nature would come up; and requested the Board consider the CUP being outdated. He expressed concern about noise, odor, and horseflies; and requested the item be denied.

Commissioner Scarborough requested the County Attorney address the status of the CUP and the issue of sleeping CUP's. Ms. Bentley stated there are a number of ways the County deals with them; if there were conditions in place at the time the CUP was adopted, and they do not comply with the conditions, the CUP can be revoked; the CUP in question is very old, and would have to be examined to see if there were changes in circumstances; and there would have to be a public hearing to remove it, which would require a finding that there had been a violation. Commissioner Scarborough inquired if the applicant wants to table this and come back; with Mr. Enos responding he talked to Mr. Roberts who advised there were going to be problems with setbacks on the barns. Commissioner Scarborough inquired if he moves to deny, can the applicant come back and reapply in six months; with Mr. Enos responding yes.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to deny Item 1.

Commissioner Scarborough stated this is spot zoning; there is nothing out there but SEU; and they have a greater burden.

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

Commissioner Scarborough stated while it has been denied, they can come back and reapply in six months; but it is incumbent upon the applicant to take a more affirmative action before the Board if they want the Board to receive it favorably; and asking at the last moment to table it is not responsible.

Item 2. (Z0001102) Virginia R. Kershner's request for change from AU to RR-1 on 2.2? acres located on the north side of Lionel Road, approximately 0.19 mile east of U.S. 1, which was recommended for approval by the P&Z Board.

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

Item 3. (Z0001103) Frank G. Griffith, IV's request for change from AU to RR-1 on 5.08 acres located on the southeast corner of U.S. 1 and Carter Road, which was recommended for approval by the P&Z Board.

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

The meeting recessed at 7:04 p.m. and reconvened at 7:17 p.m.

Item 4. (Z0001201) Arnold S. Jason's request for change from RU-1-11 to BU-2 on 4.14? acres located on the east side of North Banana River Drive, approximately 350 feet north of Audubon Road, which was recommended for approval by the P&Z Board with a BDP limited to a mini-storage facility only, units used for storage only, no businesses will be permitted to operate in the units, no electric or water to any units, no parking of tractor trailers or running of their generators, no construction equipment to be stored in the outside storage areas, 24-hour security on the premise to be accommodated within a permanent structure ( not a security trailer, four-foot high landscaped berm across the front and portions of the side property lines, and subject to the concept plan submitted by applicant.

Leonard Spielvogel, Attorney representing Arnold Jason, stated his client owns approximately 4.25 acres on North Banana Drive on Merritt Island, and he would like to build mini-warehouses on his property. He stated the property is presently zoned RU-1-11; and under the present zoning the parcel would accommodate 19 single-family homes. He advised there is BU-1 to the south, BU-1 to the west, RU-1-11 to the north with a CUP for a church, and GU to the east; the Future Land Use Map designation is Mixed Use; and mini-warehouses require BU-2. He stated he inquired about the requirements for BU-2, and was told it was because mini-warehouses had been abused; people were operating businesses out of mini-warehouses; and for that reason the Board moved mini-warehouses into BU-2 just as they do full-sized warehouses. He stated the other reason to have mini-warehouses in BU-2 is because they are ugly. He stated he and his client developed a binding development plan which has been provided to the Board; it provides that the concept plan, which is attached as an exhibit, is part of the binding development plan; and that means everything on the concept plan will be required to be done including the berm, retention area, and setbacks. He stated the binding development plan goes on to provide that the only BU-2 use that is allowed is mini-warehouse; the P&Z Board approved the request on a 7-3 vote; the three voting against were concerned about the BU-2; and what they are trying to do is limit the BU-2 as much as possible, so the only use will be mini-storage. He stated they will strictly prohibit any business operation from the individual storage base; leases will all have to be in writing, and will have to contain that prohibition against that business use; and the individual units will have no utilities. He stated there will be 24-hour security on site; the building height will be limited to one story; there will be no storage of cranes or construction equipment allowed on site; and it will be explicit that this is mini-storage only. He stated he met with some of the homeowners to try to respond to their concerns; they will beautify the neighborhood; and submitted a picture of the shopping center immediately to the south which is ugly. He stated between the berm and the landscaping that the client proposes, they will make the site attractive; they will increase the assessed value of the parcel; they will eliminate a mosquito breeding area; and they will put less traffic on the road. He stated if the Board ever decides to move mini-storage back to BU-1 with conditions, then the binding development plan will provide that the client will have no objection to the County administratively rezoning the property to BU-1. He stated mini-warehouse with the limitations belongs in BU-1. He stated with him are Project Engineer Scott Nichols, Mortgage Broker George Lewis and Rhonda Pieper-Schmitz. He described the facility; stated between the berm and landscaping, no one across the street will see the building; and the project will be a pleasure to look at as opposed to what is next door.

Chairman Higgs inquired if Commissioner O'Brien desires to give the applicant additional time; with Commissioner O'Brien recommending they be given five additional minutes.

George Lewis stated he is a licensed real estate broker; and his mission was to determine if this project would have an effect on the neighborhood. He stated he looked at the project being proposed, the surrounding commercial properties, problems with the commercial properties, and the residential areas in the adjoining subdivision; and it is his professional opinion that this will add to the community. He stated he cannot promise that it will increase the value of homes, but it will not decrease the value; and probably will encourage the owners of other commercial properties to spruce up their properties also. He stated this type of project is much better than putting 19 residential units on a piece of property that would be a tremendous expense to develop; and if it was developed as residential, it would probably be overdeveloped for the area and it would not be possible to market the properties for the price it would cost to do the development. He stated the project will add to the neighborhood and will enhance the real estate values.

Rhonda Pieper-Schmitz, Motorist Design, Inc., compared the trip generation for the proposed project compared to what it could be with 19 single-family residences; stated it will be 60% of what it would be with residential homes; and the biggest difference is in the morning peak hour when it is approximately 50%. She noted the trip generation rates she is using is for ultimate buildout of the site; and it is a diminimous impact.

James Van Hoose, Jr., Pastor of Island Community Church, advised of the functions of the church including serving as a meeting place for Girl Scouts and a home school group; and expressed concern about location of the church next to a mini-warehouse. He stated the Church's zoning was RU-1 when the property was purchased; the Church serves as a buffer for the neighbors to the north who have petitioned against the mini-warehouse; and commented on the impact of 350 mini-warehouse units. He expressed concern about truck traffic and children going to Audubon Elementary School along Banana River Drive. He stated this is a residential corridor; and warehouses do not fit.

Mr. Spielvogel stated if there is a traffic problem on the road, what the applicant is suggesting almost cuts in half the traffic impact; and if he had to choose between living beside a mini-warehouse with the limitations they will be imposing or another commercial project, he would choose the mini-warehouse because it is like living next to a mausoleum. He stated the traffic is very low; it is quiet; and it will be a benefit to the neighborhood. He stated the shopping center is terrible; and hopefully, they will encourage the redevelopment of the shopping center.

Chairman Higgs stated she met with Mr. Spielvogel; and he outlined the project in the same manner as he has today. She inquired about the hours of operation; with Mr. Spielvogel responding 7:00 a.m. to 7:00 p.m.

Commissioner O'Brien stated he met with Mr. Spielvogel and Mr. Lewis concerning the project; he received approximately eight e-mails from neighbors in close proximity to the project; and he spoke with Stan Allen who is President of the East Merritt Island Homeowners Association. He stated the project, as proposed, would be between the church and old, rundown Winn Dixie; across the street there is an old gas station, a small bank, the Elks Club, and a convenience store; so the entire triangle is commercial. He stated if the property is left as residential as it is presently zoned, it will accommodate 19 houses; and commented on the impact, including more children at Audubon Elementary School, more traffic on Banana River Drive and Sykes Creek Parkway, more pollution, and higher demand for fire, police and EMT services as well as Medicare and Medicaid at hospitals. He stated it is silly to think about putting 19 homes between a church and a closed grocery store, especially since commercial is directly across the street. He stated there is a benefit to the community because of the ground storage proposed; the East Merritt Island Homeowners have no objection to the project; children walking to school will have less impact from the mini-warehouses than if the Winn Dixie were operational; and he does not see a danger to children walking past the driveway. He stated there is a stop sign at the corner; the corner has been reconfigured for safety; and it is a good and viable project.

Motion by Commissioner O'Brien, to approve Item 4 with a Binding Development Plan (a) limiting the project to a mini-storage facility only, one story high, (b) units will strictly and only be used for storage, (c) hazardous materials should not be allowed in storage, (d) no electricity, telephone, cable TV, water or gas, whether natural or other, shall be allowed at or to be brought to any unit, (e) tractor trailers will not be allowed to park nor remain overnight on the premises, (f) generators (electric, electronic or otherwise) shall not be allowed to operate on the premises, (g) equipment used for construction should not be stored nor parked outside of any unit nor outside anywhere on the property, (h) 24-hour security shall be accommodated on-premises within a permanent structure, and security trailer, mobile home or any other form not considered as a permanent structure shall not be acceptable, (i) all lighting should be shaded so that light does not emit beyond the property lines, (j) a four-foot high irrigated, heavily landscaped berm which shall be well maintained shall be placed across the front portion of the property and extend along a portion of the side property lines for a minimum of one-third of its length, (k) sufficient distance shall be allowed from the curb of the street to any security gate to accommodate a minimum 33-foot truck without having any portion of the truck remain in the roadway, (l) leases all point out the terms such as no commercial utilization nor storage of hazardous materials allowed within the unit, (m) signage on the front of each building stating that the units shall not be used for storage of hazardous materials, or commercial or industrial use, (n) if the Code changes to allow mini-storage units in BU-1, the applicant is willing to allow administrative rezoning to BU-1 as long as it allows continued operations, and (o) the architecture shall be as shown by the applicant.

Mr. Spielvogel stated at such time in the future as the Board puts mini-storage into BU-1, the applicant would agree that the property would be administratively rezoned to BU-1 to allow continued functioning in the BU-1 classification. Mr. Enos stated it would take direction from the Board to amend the Code to allow mini-storage in BU-1. Commissioner O'Brien stated the motion is for mini-storage only under the Binding Development Plan; and all the points have been covered.

Commissioner Scarborough seconded the motion. Commissioner Scarborough stated the motion substantially changes and improves the language of the binding development plan; and inquired if Mr. Spielvogel accepts the new binding development plan; with Mr. Spielvogel responding affirmatively.

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

Commissioner O'Brien stated the pictures will be included in the official record.

Item 5. (Z0001301) Donald and Marsha Harris and Jonathan R. Harris' request for change from BU-2 to RU-2-4 on 0.95 acre located on the east side of U.S. 1, approximately ? mile north of Grant Road, which was recommended for approval by the P&Z Board.

Don Harris stated the reason for the request is due to the health and physical limitations of his mother; she will be 72 this year; and in the past two years has broken both wrists, severing all muscles from her shoulder, which has left her with limited use of her right arm and the left wrist has still not fused back together. He stated he and his wife take care of his mother's lawn, housework, shopping, etc.; and described their living arrangements. He stated the change of use is needed to build the home on the river and provide assistance to his mother while allowing her a sense of independence and privacy. He advised his mother is a smoker; his children and wife have allergies to tobacco smoke; and living under one roof would not work. He advised of a promise to his father not to put his mother in a facility.

Chairman Higgs stated the only way to accomplish this is to change to RU-2-4; however, there is only one other RU-2-4 in the area; and although there is BU-2 on the other side of the road, the residential is single-family homes. She stated the objective is to have a family facility; and inquired if Mr. Harris would agree to not renting the unit, but having it as part of the family home. Mr. Harris advised that is what it is going to be; he will build a workshop underneath it; his mother will live on top; and they have talked about putting in an elevator. Chairman Higgs inquired if Mr. Harris would agree to a binding plan that would provide that it would not be a rental facility; with Mr. Harris responding that would be acceptable.

Chairman Higgs passed the gavel to Vice Chairman O'Brien.

Motion by Commissioner Higgs, seconded by Commissioner Voltz, to approve Item 5 with a Binding Development Plan providing for no rental of the additional unit.

Vice Chairman O'Brien inquired what will happen when Mr. Harris' mother passes away and the apartment is empty. Mr. Harris responding it will be a house sitting on top of a workshop; they have ten acres; and he does all kinds of outside maintenance. Vice Chairman O'Brien stated he wants Mr. Harris to be aware that he will not be able to rent the apartment.

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

Item 6. (Z0001302) Vincent P. and Maria Taranto's request for change from RU-2-6 with a CUP for a Recreational Facility to TR-3 (retaining the CUP for a Recreational facility) on 0.108 acre located on the east side of Highway A1A, approximately ? mile north of Hall Landing Road, which was recommended for approval by the P&Z Board with a BDP limited to recreational uses only accessory to the mobile home park on the parent parcel located on the west side of Highway A1A.

Motion by Commissioner Higgs, seconded by Commissioner Voltz, to approve Item 6 as recommended. Motion carried and ordered unanimously.

Vincent Taranto stated he was before the Board in August, 1999; and submitted drawings showing the area. He stated area shown in red is the area the Board just approved; in August, 1999 he requested TR-3 zoning on the west side of A1A; and at that time he had no idea that he would have to come back for rezoning of the 20 feet on the east side of A1A to make the it part of the west side and for recreational and accessory to the park which is on the west side. He stated if he had done that as part of the original application, it would have cost $12; but as he had no idea that the TR-3 would have to be done on the east side to be an accessory, the application was $771; and requested the Board consider a refund on the application as he had no way of knowing the rezoning was going to be necessary.

Commissioner Higgs stated she is sympathetic with Mr. Taranto's request, but it is a separate request which has required separate advertisement, hearing, and staff work; staff would have had no way of knowing that this was going to come up; and the request does not fit into any category for which the Board has waived fees so she cannot make that recommendation.

Vice Chairman O'Brien suggested putting the issue on the Consent Agenda, and if anyone has a problem with it, they can pull it. Commissioner Higgs stated she will pull it because she will not support it. Commissioner Voltz inquired how much were the costs for advertising, etc.; with Mr. Enos responding it would be difficult to estimate the costs of the advertisement because it is part of a larger advertisement. Mr. Enos advised some time ago last year, Mr. Taranto requested TR-3 zoning on the property on the west side of A1A; if he had known he also needed to request TR-3 zoning on the east side of A1A, he would have done it at the same time and saved money by having one application instead of two. Vice Chairman O'Brien inquired who is requiring the rezoning on the east side of the highway; with Mr. Enos advising Mr. Taranto is requesting it. Mr. Taranto stated if he had known that he would have to have TR-3 on the east side to have it considered as an accessory to what he zoned on the west side, he would have done it at the same time; but he did not have that knowledge. Vice Chairman O'Brien inquired if anyone on staff educated him; with Commissioner Higgs advising the staff had no way of anticipating what Mr. Taranto was anticipating as the use on the east side. Mr. Taranto stated it is not a fault; it is just a situation that occurred; and there should be some consideration because of the exorbitant difference between $12 and $771.

Vice Chairman O'Brien passed the gavel to Chairman Higgs.

Item 7. (Z0001401) Stephen M. Brewer's request for change from AU to RR-1 on 1.25? acres located on the south side of Martin Road, approximately 0.4 mile west of Fiske Boulevard, which was recommended for denial by the P&Z Board.

Stephen Brewer pointed out three parcels on a map; and stated that was one five-acre piece of property that was zoned AU. He stated the owners got a divorce; as part of his fee, he got a mortgage on the two portions that were deeded to his client; and noted what has happened is not his creation. He explained that Harbor Federal had a mortgage on the house and one-acre tract in the middle of the property; Harbor Federal foreclosed the mortgage on the house and took back the one-acre tract; and by doing that, a RR-1 zoning was created. He stated it is a nonconforming use at this time because the property is a house on a one-acre tract. He stated since he had a mortgage on both pieces of property, when the bank wiped out his mortgage on the middle tract, he foreclosed on the front tract; and he now owns the front 1.25 acres which are zoned AU and front Martin Road. He stated he also owns the easement which goes to both pieces of property. He stated the people who have purchased the house on the one-acre tract will speak against the rezoning, but they have a non-conforming use; he found out today that the tract on the west side was divided in 1993 and rezoned to RR-1 with an easement; and since the divorce, the Board approved a rezoning of Mr. Fillman's property to RR-1 with an easement. He requested his property be rezoned to RR-1; stated behind the property is Tuckaway Acres which is ?-acre lots; and without the zoning, there is not much he or anyone will be able to do with the property.

John Angelillo stated he moved to Martin Road in 1983 because he understood the area was zoned at 2.5 acres per house; and he owns 10 acres there. He expressed concern that the rezoning would set a precedent for Martin Road. He stated he understands the owners of the house offered a fair price to Mr. Brewer, and that was denied.

Igor Chuyan stated his property borders Mr. Brewer's property immediately to the east; and advised of a petition against the rezoning. He stated he is already being impacted by the development of Tuckaway Lake Estates due to the County guidelines for elevations; and submitted pictures showing the disparity in the elevations. He stated if the zoning change is approved the same guidelines will apply, and he will have no water runoff; and he owns the highest piece of property on Martin Road. He stated one property on Martin Road is zoned RR-1 because it was owned by three people in the same family; but that has been sold to one individual who plans to petition to change the zoning back to AU. He expressed concern about differences in grade, water runoff, and traffic flow; and stated all of the residents are against the rezoning. He stated if this item is tabled, it should be tabled for six months.

Michael Spinelli stated he owns the property in the middle; if the zoning changes, there will be flooding problems; and inquired if Mr. Brewer's property is made buildable, where will the water go. He stated it is not his fault that Mr. Brewer has property he cannot do anything with; and that is between Mr. Brewer and the Fillmans.

Amy Spinelli stated for the past year she and her husband have been struggling to find out what happened with the property; they were under the impression they purchased Mr. Brewer's property with their purchase; at the time of purchase, the address shown on the tax rolls enveloped the whole 2.5 acres; her appraisal says she owns the property; and they are still looking into the legal ramifications. She stated she outlined the problems with financing the property; and advised her offer of $25,000 with Mr. Brewer holding the mortgage was declined. She stated she does not want her neighbors to suffer because of the fact that someone got a divorce; and advised of the confusion surrounding the property. She stated if someone was going to build on Mr. Brewer's property, they would have to fill the property above the grade of their property; and therefore, the water would come to her property; and since there is RR-1 behind her property, there is no place else for the water to go. She stated they are saturated now; she drives a 4-wheel drive truck to get in and out; and she does not want to have to drive a boat. She recommended the Board look at the ramifications of the rezoning.

Commissioner Scarborough inquired who did Mr. and Mrs. Spinelli buy their property from; with Ms. Spinelli responding Harbor Federal foreclosed on the property; Peter Capone purchased the property; and she and her mother-in-law purchased the property from Mr. Capone. Commissioner Scarborough inquired if they went through a title company; with Ms. Spinelli responding yes. Commissioner Scarborough inquired if the title company required a survey; with Ms. Spinelli responding yes, and what they got off the tax rolls was 2.5 acres. Ms. Spinelli noted she is not a metes and bounds expert; and she went by what the appraiser said. Commissioner Scarborough inquired if the legal description included the entire parcel including Mr. Brewer's property; with Ms. Spinelli responding she is not sure.

Commissioner Carlson stated during the initial divorce proceedings the property was split and was taken to the Clerk, and it was legally deeded without any compliance to the Zoning Code; and therein lies the initial problem. She stated there is an unusable parcel which is AU in the back, which is Mr. Brewer's and Ms. Spinelli's parcel which is AU; and both are nonconforming as far as the Code. Ms. Spinelli stated things are being filed at the Clerk's office, but no one is doing any checks to see if it is legal; with Commissioner Carlson advising it creates a lot of problems. Ms. Spinelli inquired how this can be prevented from happening in the future; with Commissioner Carlson responding by asking the Clerk to make sure they go through the Zoning office to make sure it is legitimate. Mr. Spinelli stated the real problem is the flooding; and inquired if the property is buildable, where will the water go. Commissioner Carlson stated she is aware of the flooding and drainage problems in that area; she has a petition with 11 signatures of all the residents on Martin Road; and one of the residents whose property is shown on Mr. Brewer's map indicates he is interested in petitioning to get it downzoned to AU. She recommended more discussion between the Spinelli's and Mr. Brewer. Ms. Spinelli advised the RU-1 rezoning would make the property more profitable for Mr. Brewer. Commissioner Carlson stated if the person on the west had not indicated interest in changing RR-1 back to AU, she would have suggested RR-1 for both pieces of property; but since the whole neighborhood is interested in keeping it in the AU atmosphere, she would go along with the recommendation of the P&Z Board for denial.

Commissioner O'Brien stated the problem is not about Mr. Brewer's property becoming more valuable or not. Mr. Spinelli stated if the property becomes more valuable by changing the zoning, it becomes buildable; and reiterated his concerns about the runoff. Ms. Spinelli stated the property is currently up for sale; and Mr. Brewer is before the Board today because he needs to have his property rezoned RU-1 in order to sell it with the desired value. Mr. Spinelli stated he and his wife live there; but Mr. Brewer does not.

Chairman Higgs noted the Board's job is not to sort out some of those issues, but to decide what is proper zoning for the parcel.

Mr. Brewer stated it is a mess; but dividing the property in the divorce was not the problem; and the mortgage company created the problem. He stated he would love to sell the property to Mr. and Mrs. Spinelli, but they did not offer him $25,000; they offered him an illegal contract; and he could not enter into that. He stated the property is unusable as it is; the Spinelli property is nonconforming; and he does not see how the Board can leave it the way it is and trust that they will be able to get a deal.

Commissioner Carlson stated both property owners are better served by trying to meet the needs of each other; there are two nonconforming lots; and if the Spinellis are offering $25,000, there is room to talk. She recommended they get back together to work something out and try to solve the drainage issue.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to deny Item 4 as recommended. Motion carried and ordered unanimously.

Item 8. (Z0001402) Donald N. and Judith M. Molitor's request for a CUP for a Security Mobile Home (Renewal) in a BU-2 zone on 17.67 acres, located on the south side of Parrish Road, approximately 650 feet west of Range Road, which was recommended for approval by the P&Z Board for one year, subject to submission of site plan for a permanent facility by the expiration of this approval.

Conrad Zamka stated he is the applicant; and requested approval to extend it to the full term.

Commissioner Carlson stated Mr. Zamka got the CUP in 1978; with Mr. Zamka advising he did not get it. Commissioner Carlson stated she does not have any problem with the P&Z Board recommendation to approve for one year subject to submission of site plan for a permanent facility by expiration of the approval. Mr. Zamka stated the only reason he is asking for the extension is because there is some construction going on, and it has pushed back his plans by six months; and requested it be extended a total of 18 months. Commissioner Carlson inquired how six months will help; with Mr. Zamka responding financially and he wants the other construction to be complete before he brings someone in to help him. Commissioner Carlson stated she has no problem with that. Commissioner O'Brien stated he has no problem with it either as long as Mr. Zamka understands that in 18 months and one day, the trailer had better be off the site. Mr. Zamka stated he hopes it will be done before that, but wants a buffer.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to approve Item 8 for 18 months, subject to submission of a site plan for a permanent facility by the expiration of this approval. Motion carried and ordered unanimously.

Item 9. (Z0001403) Pineda Partners, LLC's request for change from PUD and RU-1-7 with a BDP to all RU-1-7 with a BDP on 9.16? acres located approximately 0.57 mile west of Wickham Road and approximately 0.47 mile north of the terminus of Turtlemound Road, which was recommended for approval by the P&Z Board with the condition that the BDP for Grand Haven be amended to include this property and that the maximum density for the Grand Haven project remain unchanged at 860 units.

Commissioner Carlson stated she has no problem with this as it is just an adjustment to the PUD.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to approve Item 9 as recommended.

Chairman Higgs stated she voted against the original, but will vote for this. She called for a vote on the motion to approve Item 9 as recommended. Motion carried and ordered unanimously.

Item 10. (Z0001404) City of Melbourne's request for change from SEU to GML-H and a CUP for a Water and Sewage Treatment Facility on 17.39 acres located on the south side of Lake Washington Road, approximately 0.42 mile west of McGraw Avenue, which was recommended for approval by the P&Z Board.

Howard Ralls, City of Melbourne Engineer, advised of the importance of the surface water treatment plant project, number of people served, number of gallons produced daily, and stringent standards of Clean Water Act Amendment of 1996. He stated they are going to replace approximately 75% of the treatment system; and in order to do that they picked a site that is adjacent to the plant. He distributed paperwork; and explained why the sites were selected. He stated they are trying to change the plant because they need new treatment technology to deal with the rules; the plant was initially built in 1958, upgraded in 1965, and upgraded again in 1988; they need new equipment; and they are expanding to 20 million gallons.

Commissioner Carlson stated this will only be water treatment; and it will not involve sewer at all.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to approve Item 10 as recommended. Motion carried and ordered unanimously.

The meeting recessed at 8:34 p.m. and reconvened at 8:52 p.m.

Item 11. (Z0001405) Joseph G. and Paula A. Schulte's request for change from RU-1-13 to BU-1 on 1.44? acres located on the east side of U.S. Highway 1, approximately 0.27 mile north of Suntree Boulevard, which was recommended for approval by the P&Z Board.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to approve Item 11 as recommended. Motion carried and ordered unanimously.

Item 12. (Z0001406) Gomer and Victoria A. Mitchell's request for change from RU-2-6 to RP on 0.72 acre located on the east side of U.S. 1 approximately 125 feet north of Bonaventure Drive, which was recommended for approval by the P&Z Board, with a BDP limiting density to a maximum of four units per acre.

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

Item 13. (Z0001407) Loren Von Riesen's request for change from TRC-1 to PUD and a CUP for Alcoholic Beverages On-Premise Consumption on 167 acres located approximately 0.22 mile south of Viera Boulevard, and approximately 750 feet west of Holiday Springs Boulevard, which was recommended for approval by the P&Z Board subject to the ownership issue being resolved prior to the Board of County Commissioners meeting, a wall to be erected adjacent to the Indian River Colony Club at the northwest corner of the property in accordance with existing Indian River Colony Club wall specification, that a 25-foot wide vegetative landscaped buffer be provided adjacent to the wall with 12 to 14-foot high trees, which are 50% hardwood and 50% native palms, that the tier of lots in Pod A adjacent to the west property line be one story in height, that the tier of lots in Pod D adjacent to Holiday Springs be equal in width to those in Holiday Springs adjacent to Hill Avenue, and not exceed one story in height, and that mature trees in forested wetland be preserved.

Commissioner Carlson stated she met with the St. Patrick Development Group, Inc. and homeowners association multiple times.

Chairman Higgs stated she met with David Civil who was working on the project in December, 1999.

Doug Robertson stated with him this evening are David Civil who is President of St. Patrick Development Group, and Carlos Ballbe who is the Engineer of record for the St. Patrick PUD; and the request is to change the zoning from TRC-1 which would allow mobile homes to PUD to allow them to develop a primarily residential community. He stated the site is approximately 167 acres; to the west of the property is the Indian River Colony Club; to the north is primarily vacant land up to Viera Boulevard; to the east it borders the Holiday Springs subdivision; and to the south it is primarily vacant property with the exception of County-owned tract which has the ponds for the reuse water system. He stated part of what they are requesting is approval of a preliminary development plan which is required as part of the zoning process; the plan reflects access from the site going to Viera Boulevard via a 100-foot right-of-way; and it reflects a variety of residential uses. He stated the uses include three detached single-family pods around the perimeter of the project abutting the Indian River Colony Club and Holiday Springs PUD's; there will be two townhouse pods centrally located; there will be one multi-family pod located in the northeast quadrant; and there will be a 3.5-acre commercial pod at the access of the site. He stated the purpose of the commercial pod would be to provide a small restaurant to serve primarily the residents of the project as well as some other uses such as child care or elder care facilities. He stated there will also be a 20-acre lake, a 3-acre active recreation area with a beach, and a 10-acre linear park that will include an 8-foot bike path. He stated the request is from TRC-1 to PUD; the existing classification would allow for 1,200 units; the request will reduce that to approximately 835 units; and single-family and townhomes will be more compatible with the surrounding area than mobile homes. He stated the project will not exceed any level of service thresholds; all staff concerns have been addressed; it is a more compatible concept with the surrounding subdivisions than the existing zoning; and there was unanimous approval of the P&Z Board. He advised they met with the homeowners associations of Indian River Colony Club and Holiday Springs; and changes have been made to accommodate their concerns.

Commissioner Carlson inquired about scrub jay habitat on the property; with Mr. Robertson responding at this point they do not believe there are any scrub jays or scrub jay habitat; but a scrub jay habitat assessment will be required as part of the final development. He stated that assessment is scheduled for March 1, 2000; but previous studies indicated that while there were surrounding issues, there are none on the site. Commissioner Carlson stated the P&Z recommendation includes it being subject to the ownership issue being resolved prior to the meeting tonight; a wall to be erected adjacent to Indian River Colony Club at the northwest corner of the property in accordance with existing Indian River Colony Club wall specifications, a 25-foot wide vegetated landscape buffer be provided adjacent to the wall with 12 to 14-foot high trees which are 50% hardwood and 50% native palms, the tier of lots in Pod A adjacent to the west property line be one story in height, and the tier of lots in Pod D adjacent to Holiday Springs be equal in width to those in Holiday Springs adjacent to Hill Avenue and not exceed one story in height. She stated it also requires that mature trees in the forested wetland be preserved; and inquired where is the forested wetland. Mr. Robertson responded it is not written correctly.

Commissioner O'Brien stated there will be single-family homes of 5,000 square feet per home; and inquired where will they be. Mr. Robertson advised that would be per lot. Commissioner O'Brien inquired where would they be on the map; with Mr. Robertson pointing out the larger lots on the map. Commissioner O'Brien inquired what size house goes on a lot of 5,000 square feet; with Mr. Robertson responding it will not limit the size of the house, and it will be in the 2,000 square-foot range.

Christopher Schmitt stated he lives in Holiday Springs on Hill Avenue; and expressed concern about the 21 homes that abut the project. He presented a petition requesting a single-story dwelling and same size lots as Holiday Springs; stated they would also like to see a wall erected to provide a suitable barrier similar to the one they are building for Indian River Colony Club. He stated there has been a lot of crime in the Suntree area; and he is concerned about people running back and forth between the communities. He stated they have pools; he is concerned about children running through the 50-foot buffer and using the pools which creates a liability; he is concerned about theft; and he and his neighbors would like to see a suitable barrier erected between Holiday Springs and the new development.

Cliff Lynch stated he is General Manager of Indian River Colony Club; and he represents approximately 800 units. He stated it has been a privilege to be able to work with David Civil; and advised of various meetings. He stated as a result Mr. Civil agreed to address some of the residents' concern; there are already existing walls around Indian River Colony Club; they asked that be continued on the St. Patrick development with similar design and construction to the existing walls; and they agreed to do that. He stated another concern was that there would be two-story homes looking down onto the Indian River Colony Club properties; they requested that one-story single-family homes be built along the adjacent property; and they agreed to do so. He stated another concern is the environment; they requested a 25-foot buffer zone with appropriate vegetation between the two properties; and they also consented to preserve the wetlands. He stated the developer has tentatively agreed to have a set of deed restrictions that would make their neighborhood compatible with the Indian River Colony Club. He stated Indian River Colony Club recommends the project as presented.

Doug Robertson stated the only question is the requested wall adjacent to the Holiday Springs subdivision; walls are extremely expensive costing $2,000 to $3,000 per lot; and commented on the impact to the market price per lot. He stated the Indian River Colony Club, being a gated community, has a character of being a highly secure community; and the character is different from Holiday Springs which was never intended to be a gated, walled community. He stated between Holiday Springs and the project there will be 55-foot buffer which is adequate; and commented on the compatibility of the two developments in terms of house and lot types.

Commissioner Carlson inquired if the 55-foot buffer will be left in a natural state or will it be augmented with additional vegetation; with Mr. Robertson responding the intent is to keep the vegetation if it is acceptable. Commissioner Carlson stated Mr. Schmitt mentioned something like a wall, but unlike Indian River Colony Club which is a gated community, she does not see a need for a wall to solve any security problem for Holiday Springs; the buffer can be augmented so there is a nice opaque vegetated buffer so there will not be movement between the homes; and a wall is exorbitant. She stated Mr. Civil has done an excellent job of creating an innovative plan; and hopefully, he will be successful. She stated he has chosen to protect the wetlands; and the Board appreciates that.

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

Item 14. (Z0001501) Riverside Baptist Church of Indialantic, Inc.'s request for change from GU with a CUP for School to AU (retaining the CUP for School) on 6.87 acres located on the east side of North Riverside Drive, approximately 0.6 mile south of Eau Gallie Boulevard, which was recommended for approval by the P&Z Board.

Motion by Commissioner Voltz, seconded by Commissioner O'Brien, to approve Item 14 as recommended. Motion carried and ordered unanimously.

Item 15. (Z0001502) Bette Lynn Peay's request for change from RU-1-9 to RR-1 on 3.1 acres located on the northwest corner of Vermont Street and Pittsburgh Street, which was recommended for approval by the P&Z Board.

Motion by Commissioner Voltz, seconded by Commissioner O'Brien, to approve Item 15 as recommended. Motion carried and ordered unanimously.

Item 16. (Z0001503) Roy Wayne Yates, as Trustee's request for change from PUD to AU on 5.46? acres located on the west side of Babcock Street, approximately 0.19 mile south of Deer Run Road, which was recommended for approval by the P&Z Board, with recommendation that staff initiate administrative rezoning on the remaining 247 acres at no cost to the applicant.

Motion by Commissioner Voltz, seconded by Commissioner O'Brien, to approve Item 16 as recommended. Motion carried and ordered unanimously.

Mr. Enos inquired if the approval includes direction to staff to initiate the administrative rezoning; with Commissioner Voltz responding affirmatively.

PUBLIC HEARING, RE: PORT ST. JOHN DEPENDENT SPECIAL DISTRICT RECOMMENDATIONS OF JANUARY 5, 2000

Chairman Higgs called for the public hearing to consider the recommendations of the Port St. John Dependent Special District made at its January 5, 2000 meeting, as follows:

Item 1. (PSJ00101) Coastal Properties, Inc.'s request for change from RU-1-11 with a BDP to TR-1 with a new BDP on 50.64 acres located approximately ? mile west of U.S. 1 at the west end of Clear View Drive, with west property line running along the east side of the F.E.C.R.R., which was recommended for denial by the Port St. John Dependent Special District Board.

Chairman Higgs advised she met with Mike Miller who explained his project; and she has a summary of the discussion. Commissioner Voltz stated she also spoke with Mr. Miller. Commissioner O'Brien advised he spoke with Mr. Miller this afternoon. Chairman Higgs stated the Commissioners can talk with the applicants; but the decision has to be made on the evidence presented at the public hearing.

Mike Miller, Consulting Engineer representing Coastal Properties, Inc., stated he is requesting rezoning of 50 acres adjacent to Port St. John from RU-1-11 with a binding development plan to TR-1 with a modified binding development plan. He stated the Port St. John Dependent Special District Board heard his presentation on January 5, 2000 and recommended denial; but this recommendation was based on information that was not factual, which was presented during the meeting by members of the audience and considerations not related to the zoning. He submitted a location map showing the property relative to Port St. John, two plans, and the minutes of the meeting. He stated there are two projects; one has been essentially approved, and can be done within the existing zoning; and it meets all the requirements of the original binding development that was approved in 1992. He commented on meeting the requirements of the binding development plan including number of lots and retention area; stated access is only possible through Clearview Drive; and his clients purchased land across the 350-foot wide Florida Power & Light right-of-way to connect to the other half of the property. He stated they hired scrub jay consultants to define the limits of scrub jay habitat; pointed out on the map the 10 acres in the northern half and another acre; and advised the consultants identified four birds within the 11 acres, two mates and two offspring. He stated there will be some ability to mitigate; under the existing zoning, all the lots would back up to lots along Vineland Street; and another feature of the binding development plan, which was required by the Fire Department, was an access point into the Cowan Trailer Subdivision by an 18-foot marl road with a padlocked gate. He stated the zoning request for TR-1 would allow mobile homes; the intent is to put doublewide mobile homes with deed restrictions, and to mitigate onsite as much as possible some of the scrub jay habitat by providing a 100-foot wide conservation area between the lots along Vineland Street and the project's lots; and the dry retention area would be part of Tract D. He stated the lot size under the rezoning request are the same as under the original RU-1-11 zoning, 75 feet by 100 feet. He stated they know they have scrub jays and gopher tortoises; they have hired consultants; and they are prepared to mitigate whatever has to be done. He stated at the Port St. John Dependent Special District Board Mr. Kane said everyone is on septic tanks and wondered if he was going to be forced to hook up to sewer; but under the existing binding development plan that is not a valid consideration because it will be that way whether they get the zoning or not. He stated there were questions of environmental impacts; but that is not related to the zoning. He stated Mr. Workman who was the Chairman of the Advisory Board commented that there seemed to be heavy traffic flow on Clearview; but actually the zoning request would reduce the traffic on Clearview. He stated Mary Tees had comments regarding the width of the right-of-way, the condition of the substreet, and concern about having to rebuild the street; but the approved engineering plans already have all of this information; and they know they have to rebuild the street. He stated Ms. Tees also mentioned there would be 130 new septic systems, but that would pertain whether the existing zoning remained or whether the new zoning was granted. He stated Ms. Tees also commented about hard sell; and she is a very influential woman, but the comments were not related to the technical aspects of the zoning. Mr. Miller stated David Ulrich who lives south of the property said he did not want to see "trailer trash" there, although Mr. Ulrich is one as he lives in a modular home; and he does not think that is related to the zoning request. He stated Roy Kozlowski who lives adjacent to the emergency access pointed out that in the past he has had hundreds of dollars worth of tools disappear down that road; he is sorry that happened, but the existing zoning still requires that access road; and it has no bearing on the zoning request. He stated Ward Yordy pointed out there was an article in the newspaper that said you cannot pick up gopher turtles; but that is incorrect as you can relocate gopher turtles. He stated Laura Roper was worried that the access drive is the "camel's nose in the tent" and that traffic will be dumped into the Cowan Trailer Subdivision; but that is a consideration independent of the zoning because it would pertain under the existing zoning category as well; and Rose Maxey expressed the same concern. He stated Andy Sapp said that Coastal owned the property adjacent to his lot; but he is incorrect. He stated Ms. Rupe, who is a member of the Advisory Board, said that RU-1-11 would not affect the property values as much as a mobile home park; but it will not be a mobile home park, but a mobile home subdivision where people own the lots and the homes. He stated Mr. Workman, who is Chairman of the Advisory Board, said he would have to do something with the scrub jays, and the binding site plan would not stand when it goes to the State for approval. He stated it will go to U.S. Fish and Wildlife for approval; and he has hired consultants who advise he can meet the requirements of the binding development plan. He stated the Advisory Board heard a lot of invalid reasons; and requested the Board approve the rezoning request.

Chairman Higgs stated one of the concerns was rentals; and that may be an issue Mr. Miller can deal with in a binding development plan. Mr. Miller stated they would be glad to consider that; but they do not know if it is legal to sell a home in a single-family subdivision and put on that limitation. Assistant County Attorney Eden Bentley advised they cannot restrict it from being sold and that sort of thing, but it may be possible to put some restriction on short-term rentals; and Mr. Miller would need to consult with his attorney. Mr. Miller stated it can be done with condominiums, so it may be possible; and they will look into it if it is a strong concern. Chairman Higgs inquired who will the market be; with Mr. Miller responding generally a more mature market, but it will not be restricted to adult only.

Ralph Gregory stated he surveyed the neighborhood; and a lot of the people on his street are totally against it, but those whose property does not abut the redevelopment were never notified. Commissioner Scarborough requested Mr. Gregory point out the area that did not receive notice; with Mr. Gregory pointing out the area. Commissioner Voltz inquired if Mr. Gregory looked at the 100-foot buffer versus the other plan which would directly abut his property. Mr. Gregory stated he has been there since 1987 and has seen the original plan. Commissioner Voltz stated they can either abut or leave the 100-foot buffer. Mr. Gregory stated there would have been a lot more people present in protest if they had been notified. Mr. Gregory stated he gains no benefit from the rezoning; 146 single-family homes versus 130 manufactured homes does not give a quality neighborhood; and commented on permanent construction of homes versus movable homes. He stated manufactured housing can be repossessed and moved out; and there is no guarantee on what the people will do with the units when they are resold. He stated the 100-foot buffer zone is a potential fire hazard; there is nothing to prevent the residents of the new development from encroaching on the buffer zone; and commented on use of buffer zones. He stated the septic tank/sewer issue needs to be evaluated; and commented on other environmental concerns including presence of scrub jays, indigo snakes, gopher tortoises, and other endangered habitat. He stated the zoning should remain RU-1-11; if it is changed, it should be more restrictive; and the item should be denied. He read aloud a statement about what will happen if the rezoning is denied; and submitted the statement.

Roy Kozlowski pointed out his property on the map. He stated there is a road that has been blocked off by Florida East Coast Railway and his neighbor has put a gate across there; that has stopped people from taking stuff out of the neighborhood; and inquired what will stop people from taking things now that there is a development they can go to. He stated he has not seen any proof that the gophers and scrub jays have been taken care of; and a lot of people were not notified of the public hearing.

Commissioner Scarborough inquired if Mr. Enos knows anything about the notice; with Mr. Enos responding staff notified people within 500 feet of the property; 131 people were notified; and he has a list of the names. Commissioner Scarborough requested Mr. Enos provide a copy of the list to the public. Commissioner O'Brien stated there were 14 public hearings about the widening of Courtenay Parkway; out of the 25 people who attended a meeting on the issue last week, only 3 indicated they received notice; however, FDOT claims to have sent notices to all the people within 1,000 feet of the road. He stated people get notification cards, but do not pay any attention to them. Commissioner Voltz stated every meeting the Board hears that this happens; and it is a problem. Commissioner Scarborough stated he heard this from two speakers.

Laura Roper stated all the people who are present are not in favor of the development; and the reason the Advisory Board recommended denial is because at that meeting, the room was full of people who were not in favor of Mr. Miller's development. She stated they are concerned with the number and kind of people who will be living in the development; there is already a problem with people surrounding now; and if lower income families are brought in, there will be even more problems, and property values will go down. She expressed concern with the amount of traffic that would come through her neighborhood; and described the traffic situation. She inquired what would prevent the gated road from being opened up once there are 165 families there. She stated she is in agreement with Mr. Gregory.

David Amstadt advised of the history of the property and previous attempts to rezone the property; and stated they agreed to the binding site plan because houses would be permanent, the Board liked the idea of the property base being higher with permanent homes, and the property on either side of the southern access onto Cedar Lake Drive would be given to the property owners. He stated the access control was their main concern; and commented on the impact to children, life of the road, and crime level. He stated Mr. Spielvogel previously offered to buy his property because one of his main arguments concerned decline in property values. He stated he wants to keep the zoning the way it is or if it is rezoned to homes, put it back to the way it was 10 or 11 years ago when it was half-acre lots.

Deborah Burns stated she lives within 500 feet of the property in question, but was not notified. She stated most of the people bought on Cedar Lake Drive because there was no one behind them; and advised of the theft of a spa from her back yard.

David Ulrich stated the development calls for doublewides; but five or six years down the road, they may be foreclosed on, and then used singlewide trailers will be put in there. He advised that is what happened on Spring Street and Broadway; and if this is the case, he would prefer it go back to permanent structures. He stated he has the property next to the access road; he was given 63 feet; however, it will not solve the problem with the neighborhood. He expressed concern that there is only one road going into the property and another will be needed some day.

Mr. Miller stated Mr. Gregory said the people across the street on Vineland were not notified; he does not have any control over that; but he personally wrote letters to everyone along Vineland who abuts his property and to the people on Cedar Lake Drive who abut the emergency access. He stated Mr. Gregory says everyone is against it; but he has talked to people who are for the development, although they are not present. He noted Mr. Gregory is the only Vineland Street resident who has spoken against the project; and all the others are from Cedar Lake, which is a community of the same kind of housing that he is attempting to provide in the new community. He stated Mr. Gregory says mobile homes can be foreclosed and moved out, or people can sell the home and vacate the property; but with adequate deed restrictions and community management, that could be prevented. He stated the 100-foot buffer would be no more of a fire hazard than it is now; and the intent is to fence it because it is a conservation area rather than a use area. He stated Mr. Gregory says septic tanks/sewer is a problem; but the subdivision was approved in 1992 for septic tanks; they have also looked at the possibility of putting in sewers; and they will do whatever is required. He stated his letter said it would be necessary to build a very basic home there; and that is a function of economics. He stated if he cannot mitigate in the new zoning category; he will have to mitigate possibly 11 acres at a ratio of two or three to one; and that cost will be added to the cost of the lots. He stated all of the builders say Port St. John is very price sensitive; his property is extremely price sensitive; and the letter is not meant to intimidate anyone. He commented on the remarks of Mr. Kozlowski, Ms. Roper, and Mr. Amstadt; and stated he knows nothing about the actions of Mr. Spielvogel or the problems on Spring Street. He stated it was pointed out that the property owners on the adjacent sides of the access road were deeded land so it could never be wide enough to be a true road without condemnation of the property; and that has not changed with the request. He stated Ms. Burns commented on the theft of her spa and increased crime; more people may or may not mean more crime; but there will be people in there regardless of the zoning category.

Commissioner Scarborough stated there has been a tremendous response and concern about this request; and it is too great a leap of faith to say there is not a problem with the project. He stated the buffer may be a benefit; but there was a unanimous recommendation for denial after an extensive discussion at the Port St. John Dependent District meeting.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to deny Item 1 as recommended.

Commissioner O'Brien stated he is concerned that even though there has been an outpouring from the residents, there is a serious lack of information to support the denial. Commissioner Scarborough stated the Port St. John Dependent Special District meeting was long; and he does not think that everyone who sat through that meeting and voted to recommend denial was confused and misinformed. He stated a number of concerns were expressed; and it is inappropriate to brush it aside as being trivial. He stated this has been a difficult project; after the prior plan, there was illegal clearing out there; criminal investigation took place; and nothing further happened, but it was a dangerous situation as far as the scrub jay. He stated a scrub jay agreement is needed with the federal government so the Board does not go to jail for projects like this; and explained what happened previously. He stated the Board does not always get all the facts; sooner or later, this will be developed; but at this juncture, there are some profound problems; and it would be an error for the Board to proceed. Commissioner O'Brien stated he is not calling anything trivial, but he does not find any serious backlash; and stated most of the comments had no meeting in terms of the project. Commissioner Voltz inquired what is the competent and substantial evidence by which the Board is rejecting the rezoning. Commissioner Scarborough stated a great deal of information was brought to the Board when it went to the stick-built home; the Board is deviating from that; and some of the reasons why the existing plan could be favored could be found in the discussion of the prior developer in selling the prior plan. Commissioner Voltz stated that has not been presented tonight, so the Board does not have any competent and substantial evidence to deny the project. Attorney Eden Bentley stated what Commissioner Scarborough is trying to say is that there is a character surrounding the property; she is not sure the maps show far enough to enunciate for the record what the nature of the surrounding neighborhood is; and it would be necessary to look at the surrounding zoning and show there is nothing like what is being requested or show there is a gradual change in the neighborhood. Commissioner Voltz stated there is a trailer park just to the south of it.

Attorney Bentley stated it is necessary to look at the area and explain why the zoning should be the way the Board decides it should be; and the Board needs to pull from the testimony of the public what the character of the area is. She stated the public cannot give competent and substantial evidence on traffic as they are not traffic engineers; they can tell about the traffic and nature of the area; however, and that needs to be pulled out and defined.

Chairman Higgs stated it is a mixed area; on the north side of the Port St. John community, the site built home is consistent; there is some TR-1 in other places; but on the south side there is a different character to the TR-1 because of the size of the lots; and there are smaller lots on the interior of the proposed project. She stated the issue is not clear; but there is a substantial area on the north, so RU-1-11 and site built homes would be consistent. She stated the Board is establishing a character of the remaining area with the decision tonight. She stated in the Comprehensive Plan, the Board has said manufactured housing cannot go on the barrier island; and when it was inserted in the Plan less was known that was known after Hurricane Andrew came through. She stated Hurricane Floyd which came through last summer had intense winds which went inland; and the Board needs to recognize that as a coastal community, standards that the Board thought would only apply to the barrier island should apply inland as well. She stated she cannot support Commissioner Scarborough's concern for the project and motion to deny based on the substantial character of the area and the difference in the size lots.

Commissioner O'Brien stated he will support the motion; but inquired if the Board is saying it does not want any further doublewide homes in the County. Chairman Higgs stated she is concerned about how new manufactured housing is established; and it is a question the Board should think about. Commissioner Scarborough stated some of the worst damage from the storms was in North Brevard, not on the coastal area; 50% of the damage to parks occurred in District 1; and just north of there some of the condominiums on the river took some of the most extensive damage. He stated because the Lagoon is so broad at that point, the wind speeds built up; and this is something the Board may want to look at. Commissioner O'Brien stated he is willing to look at it, but wants to be sure the Board is consistent; if the Board is going to say no tonight, the Board has to look at it Countywide; and he does not like the lack of substantial evidence from the Port St. John Dependent Special District Board. He stated the criteria is met this evening, but just barely. Commissioner Carlson stated she has the same feeling about higher standards for mobile homes; right now the legislature is considering standards, but the Board does not know what the standards are; and it would be prudent to see the new standards before approving additional mobile homes. Chairman Higgs stated she does not recall in the past six or seven years voting for any new manufactured or mobile home communities. Commissioner Carlson stated the Board is zoning more TR areas to get away from the mobile homes. Commissioner O'Brien stated TR is trailers. Chairman Higgs stated Mr. Miller presented his development with doublewides and lot ownership.

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

PUBLIC HEARING, RE: ADMINISTRATIVE REZONINGS OF JANUARY 10, 2000

Chairman Higgs called for the public hearing to consider the administrative rezonings of January 10, 2000, as follows:

Item 1. Section 11, Township 24, Range 36, Parcel 254.1, from AU to PIP which was recommended for approval by the P&Z Board.

Motion by Commissioner O'Brien, seconded by Commissioner Voltz, to approve Item 1 as recommended. Motion carried and ordered unanimously.

Chairman Higgs passed the gavel to Vice Chairman O'Brien.

Item 2. Section 36, Township 29, Range 38, Parcel 4.02 (that portion zoned BU-1-A), from BU-1-A to RP, which was recommended for approval by the P&Z Board.

Motion by Commissioner Higgs, seconded by Commissioner Carlson, to approve Item 2 as recommended. Motion carried and ordered unanimously.

Upon motion and vote, the meeting was adjourned at 10:08 p.m.

ATTEST:

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

SANDY CRAWFORD, CLERK
( S E A L )