May 24, 2001

The Board of County Commissioners of Brevard County, Florida, met in regular session on May 24, 2001, at 5:32 p.m., in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Susan Carlson, Commissioners Truman Scarborough, Randy O'Brien, Nancy Higgs, and Jackie Colon, Assistant County Manager Peggy Busacca, and Assistant County Attorney Eden Bentley.

The Invocation was given by Commissioner Randy O'Brien, District 2.

Commissioner Jackie Colon led the assembly in the Pledge of Allegiance.

APPOINTMENTS, RE: CITIZEN ADVISORY BOARDS

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to appoint Pamela Ferraro to the Port St. John Library Advisory Board to replace Amy Tidd, with term expiring December 31, 2001. Motion carried and ordered unanimously.

Motion by Commissioner O'Brien, seconded by Commissioner Colon, to appoint Dick Thompson to the Redistricting Committee, replacing Sam Stanton, with term expiring December 31, 2001. Motion carried and ordered unanimously.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to appoint Barbara A. Barnett to the Brevard County Commission on the Status of Women, with term expiring December 31, 2001. Motion carried and ordered unanimously.

ANNOUNCEMENT, RE: CAR SHOW AT MERRITT PARK PLACE

Commissioner O'Brien advised there will be a car show at Merritt Park Place on Saturday from 1:00 p.m. to 5:00 p.m.; and it will start at 9:00 a.m. from the Space Coast Regional Airport in Titusville and travel to Merritt Park Place. He stated the BCA will be selecting the winning card for a Harley Davidson.

REPORT, RE: LETTER FROM BUD AND MARY CRISAFULLI

Zoning Official Rick Enos advised of a letter from Bud and Mary Crisafulli requesting their application for a CUP for towers and antennas be tabled to August 2, 2001, so they can determine if they can co-locate with another user.

Motion by Commissioner O'Brien, seconded by Commissioner Colon, to table Item 1 (NMI10501) Bud and Mary Carol Crisafulli's request for CUP for towers and antennas in AU zoning classification, removing existing CUP for temporary security trailer, on property located southwest of E. Crisafulli Road, which was recommended for denial by the North Merritt Island Dependent Special District. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: TABLED ITEMS FROM THE PLANNING AND ZONING BOARD
MEETINGS OF MARCH 5, 2001 AND APRIL 9, 2001

Chairman Carlson called for the public hearing to consider the recommendations of the Planning and Zoning (P&Z) Board, made at its public hearings on March 5, 2001 and April 9, 2001, as follows:

Item 1. (Z0103410) A. Duda and Sons, Inc.'s request for change from PUD to RU-1-13 with BDP limiting density to 3.1 units per acre on 84.348± acres located east of St. Andrews Isles Subdivision and south of Waterford Place, which was recommended for approval by the P&Z Board with a binding development plan as offered by the applicant.

Attorney Richard Torpy, representing the applicants, requested tabling of Item 1 to the August 2, 2001 Board of County Commissioners' meeting, as he received a report that raised issues they have not discussed or researched.

Chairman Carlson advised the Board received data regarding school capacities, a listing of all school capacities for elementary, middle, and high schools throughout the County, a compatibility study, and interpretation of the Comprehensive Plan on consistency as it applies to school capacities; and inquired if the Board wants to schedule a workshop to discuss the issue. She inquired if the Board goes forward with the Sawgrass development, will it reduce the zoning density, and what is the impact on school capacity to development in general need to be further examined at a workshop.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to direct staff to schedule a workshop to discuss school capacities. Motion carried and ordered unanimously.

Commissioner O'Brien stated the Board would also need legal advice on whether it postpones rezoning applications or if it can approve rezoning contingent upon capacities being available at the schools affected by a development. He stated the Board needs options rather than to rehear rezoning requests.

Chairman Carlson stated she wants to know how it will impact the development community in terms of construction and get input from Economic Development Council and the Homebuilders Association. She stated if the Board decides to restrict zoning to minimize impact to schools, it needs to find out legally how that can be done and what the economic impact will be in the areas that are defined to have overcrowded schools. She stated the Board needs to determine if it will allow building in those areas, stall them, etc.; and it needs to set direction.

Commissioner O'Brien stated the Board also needs direction; and inquired if the workshop could be scheduled with the courthouse options workshop; with Chairman Carlson responding it would not give enough time for Economic Development Council and others to provide feedback. Assistant County Manager Peggy Busacca noted staff would not have all the information ready for the Board to review prior to Tuesday; and requested permission to establish a date by calling each Commission office and scheduling a mutually agreeable date.

Mr. Torpy requested notice of the workshop, as the issues may affect his client.

Commissioner Higgs advised the Department of Community Affairs, 1000 Friends of Florida, and the American Planning Association would also be good resources that could be useful to the Board at that workshop; and the Board should have a fair lineup of who is going to talk.

Commissioner Colon advised she attended the Homebuilders Association luncheon, and related to the development community that there is a movement to hold elected officials accountable for development that is going on, so they have a heads up.

Chairman Carlson requested a motion to table Item 1.

Motion by Commissioner Higgs, seconded by Commissioner Colon, to table Item 1 to the August 2, 2001 Board of County Commissioners' meeting, as requested by the attorney for the applicant. Motion carried and ordered unanimously.

Chairman Carlson advised the Board has a list of items on the Agenda that have potential impact to schools; and inquired if all the Commissioners received the list; with Mr. Enos responding it was faxed late, but he has extra copies if the Commissioners want those. Ms. Busacca advised Ed Curry from the School Board is here and could answer any questions.

Item 2. (Z0103104) Jeffrey B. Greene and John Gregory Greene's request for Mixed Use District Boundary Expansion and change from RU-2-15 and GU to BU-1 on 8.985± acres located on the northwest corner of N. Carpenter Road and Hammock Trail, which were recommended for approval for MUD expansion by the LPA and BU-1 by the P&Z Board.

John Greene, representing himself and his brother, advised their request was tabled because they did not have the location of the jurisdictional wetlands on the property; they have since located the jurisdictional wetland, conferred with staff, and agreed to set aside the southernmost piece of property of a little over an acre and zone it EA; and he is requesting approval of BU-1 for the balance of the property. He stated it is actually a forested wetland adjacent to Hammock Trail; their neighbor is the RV Resort Seasons in the Sun; and the wetland provides an excellent buffer between their property and their neighbor's property. Mr. Greene stated they have letters of support from the Resort. Mr. Enos advised the wetland area is approximately the south 370 feet of the parcel.

Bob Brenneman, Vice President of Sherwood Homeowners Association, advised the Association is responsible for overseeing deed restrictions and Code enforcement for over 800 homes from Lantern Park Drive to Londontown Road and all streets and subdivisions in between; a quarterly newsletter addressing current issues is mailed to all residents whether or not they are members of the Association; the April newsletter contained an article about Mr. Greene's request to rezone his property from RU-2-15 and GU to BU-1; and it detailed his plans for a hotel, bank, and restaurant to be located on the 8.985 acres. He stated Mr. Greene can build apartments or townhouses with the present zoning; he has been forthright with the Association and has made two presentations concerning the rezoning of the property on the northwest corner of SR 46 and North Carpenter Road; and one was before the board of directors on March 8 and the other before a group of homeowners on April l9, attended by over 70 homeowners. He stated the majority of the homeowners present were in favor of the proposed use of the property; they felt a hotel, restaurant, and bank would be a welcome addition to their neighborhood; and the board has sent two letters supporting the rezoning. He read the May 2, 2001 letter essentially supporting the proposed development as presented to them and rezoning of the property, expressing interest in the development plan subsequent to the rezoning, stating their belief that a truck stop could not be constructed on the property or any property adjacent or across North Carpenter Road from the property, and requesting a binding development plan (BDP) be required.

Commissioner Scarborough advised he met with Mr. Greene, talked with homeowners, and attended the meeting where the item was discussed; the Item is not proceeding with a BDP at this moment; and once it is approved in its current format, there is no methodology to require a BDP, so it has to be approved with or without a BDP. He advised Mr. Greene that the homeowners want conditional approval; with Mr. Greene responding, they want to ensure a truck stop will not be constructed on the property because his industry is trucking and because many years ago that was his plan; however, it has since gone away; they have relocated their offices; and they have no intention of putting a truck stop there. He stated he will continue to meet with the homeowners in Sherwood in the future and discuss any and all changes that may come up to get their approval prior to moving forward. Commissioner Scarborough inquired if the Board approved the request with the condition of no truck stop or large commercial vehicles being serviced on the property, would that suffice; with Mr. Brenneman responding he thinks it would. Commissioner Scarborough stated Mr. Greene is not willing to give the Board a BDP at this point; with Commissioner Higgs responding perhaps he does not understand what a BDP is. Commissioner Higgs inquired if Mr. Greene is willing to not go with a truck stop or servicing of large vehicles on the property, which he committed to; with Mr. Greene responding he is willing to state that. Commissioner Scarborough stated he heard Mr. Greene is willing to draw out of the zoning classification certain things he would not put on the property; with Mr. Greene responding that is correct. Commissioner Scarborough stated that is in essence a BDP. Mr. Brenneman noted that would be acceptable. Commissioner Scarborough stated truck stop is a slang phrase; and inquired if it would be more appropriate to say large commercial vehicles would not be serviced or stored on the property; with Mr. Enos responding the Code uses commercial vehicles and heavy equipment. Mr. Greene stated they have no desire to repair or store vehicles, or enter into that type of business on the property. Commissioner Scarborough stated Mr. Greene is giving the homeowners a moral obligation that is not legally binding on the property; and if the property is sold, there is no way the County can force the subsequent purchaser to comply with Mr. Greene's moral obligations. He stated Mr. Greene is willing to work with the homeowners and share his plans with them; but that is not part of the rezoning and there is nothing legally that can compel Mr. Greene to do that or any subsequent buyer. Mr. Brenneman inquired if the zoning is approved, would Mr. Greene be able to put a truck stop there; with Commissioner Scarborough responding he is not talking about a truck stop; he is talking about sharing plans on entranceways, landscaping, and all the niceties as he moves forward with the project. Mr. Brenneman noted that is a risk they have to take. Commissioner Scarborough inquired if Mr. Greene would agree to a BDP limiting servicing of heavy equipment, etc.; with Mr. Greene responding they agree to that.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Item 2 as EA on the south 370 feet and BU-1 on the remainder of the property with a Binding Development Plan providing for no truck stop or large commercial vehicles and heavy equipment being serviced on the property; and approve the Mixed Use District boundary expansion as recommended by the LPA. Motion carried and ordered unanimously.

Chairman Carlson inquired about the wetland delineation; with Mr. Enos responding there is no legal description of just the boundary of the wetland; however, staff knows it is within the south 370 feet, so if the south 370 feet is zoned EA, the wetland will be included. Commissioner Scarborough stated staff extended the lines beyond what could conceivably be wetlands.

Chairman Carlson called for a motion to approve the MUD expansion.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve the Mixed Use District boundary expansion as recommended by the LPA with the same parameters as the previous motion. Motion carried and ordered unanimously.

Item 3. (Z0104406) The Waelti Family Limited Partnership's request for change from GU to IU on 9.79 acres located on the west side of Waelti Drive, north of Wickham Road, which was recommended for denial by the P&Z Board.

Antonio Gonzalez advised he came before the Board last month asking for IU on the property; the Board requested he look at PIP; he met with staff to review that; the property meets all the requirements; and he hopes the Board has a copy of the binding development plan.

Chairman Carlson advised Mr. Gonzalez brought the western side of the property in and agreed to a binding development plan, so she does not have any issues at this time.

Motion by Commissioner Higgs, seconded by Commissioner Colon, to approve Item 3 as PIP with a Binding Development Plan. Motion carried and ordered unanimously.

Mr. Lopez advised he put in a speaker card to address this item.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to reconsider Item 3. Motion carried and ordered unanimously.

Edward Lopez, representing the Lakepoint Homeowners Association, advised he has no desire to inhibit Mr. Gonzalez from building a warehouse, having a wiring operation for harness boards in the rear of the warehouse, then in the future building two additional buildings for rental purposes for services such as carpentry, television repair, etc.; however, the binding development plan said "Exhibit A" was attached, which was not, but attached was a list of numbers from the National Association of Industrial something or other; he spent hours going through that book, which is very thick and describes what the numbers are; but the asterisks give them some concern. Mr. Lopez advised he understands that if the application is approved, they could have truck manufacturing or boat building if those operations are done inside a building; boat building uses varnish and other chemicals and compounds; and although Mr. Gonzalez agreed to certain things, if he sells the property, they could have someone put in a heavy duty truck manufacturing operation. He stated Exhibit "B" is also heavy industrial uses; he found the book at Florida Institute of Technology because the Law Library did not have it; and there is no designation for heavy industrial.

Chairman Carlson advised the BDP dated May 21, 2001, paragraph 2, says, "Developer/owner agrees to the restriction of the following heavy industrial uses"; then it has Exhibit "B"; and requested staff explain what uses PIP allows and how the asterisks apply. Mr. Enos advised PIP permits contractors, industrial uses as opposed to heavy industrial uses, office and research, all uses in BU-1 and BU-2, and a conditional use permit (CUP) for trucking, but Mr. Gonzalez is not requesting a CUP. Chairman Carlson inquired what does Exhibit "B" represent; with Mr. Enos responding the uses that are not permitted in PIP and defined in the Code as heavy industrial uses. Chairman Carlson inquired what does the asterisks mean; with Mr. Enos responding some of those uses can be permitted in PIP if they are inside a structure. Mr. Lopez expressed concern about the use of chemicals for boat building; with Chairman Carlson responding there are requirements for anything that has noxious fumes. Mr. Enos stated anything that uses dangerous or toxic chemicals in certain amounts is by definition a heavy industrial use and would not be permitted in PIP.

Commissioner Higgs inquired if Exhibit B are the things they are not going to do, and the asterisks indicate outdoors; with Mr. Gonzalez responding he is not going to do anything on that list indoors or outdoors. Ms. Bentley advised paragraph 2 of the BDP says, "Developer/owner agrees to the exclusion of the following heavy industrial uses"; and inquired if that is what Mr. Lopez is trying to accomplish. Mr. Enos advised the list was prepared for a different purpose; Mr. Gonzalez's intent is not to use any of those uses; so the asterisks and outdoors can be removed. Mr. Lopez stated he is not concerned about the integrity of Mr. Gonzalez, but is concerned about somebody else who could come in the future and cause problems.

Chairman Carlson requested Ms. Bentley repeat her recommendation. Ms. Bentley advised paragraph 2, remove "restriction," add "provided the owner agrees to the exclusion of the following heavy industrial uses. See Exhibit 'B'.", and remove the asterisks from Exhibit "B".

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to approve Item 3, with a binding development plan, amended to remove "restriction" from paragraph 2, add "provided the owner agrees to the exclusion of the following heavy industrial uses. See Exhibit 'B'", and remove the asterisks from Exhibit "B". Motion carried and ordered unanimously.

Item 4. (Z0104108) Heidi Silbernagl's request for change from GU to ARR on 2.4 acres located on the west side of Magee Drive, south of Jennelle Avenue, which was recommended for approval by the P&Z Board.

Lucinda Sanders advised at the previous meeting, she was under the impression the Board did not want mobile homes in the area due to the ten-year floodplain; she did some research and found that 150 feet of her property is in the ten-year floodplain, which starts at Sharpee and continues north to include the east and west sides of Satellite Boulevard; her property backs up to the front part of Canaveral Groves; and it is approximately 150 feet from houses built on monolithic slabs with either concrete or wood structures, not stilts. She stated some properties in that Section of Canaveral Groves are considered hazardous places to set up mobile homes, but like all lands, the terrains change; and the Block her property is on has lands higher than some of the properties she looked at in the 100-year floodplain. Ms. Sanders advised she noticed a new doublewide mobile home being set up on Satellite Boulevard; that property is two blocks north of Sharpee, which is in the ten-year floodplain; and she is confused and discouraged, and feels it is unfair to those who are already in the rezoning process. She stated if changes in the rezoning procedure are going to occur, those already trying for theirs should be grandfathered in. She stated a site inspection should be done to determine if the property is suitable for a mobile home; she would build a house on the property if she could afford it; and she is concerned that she will not be able to do anything with her property. She advised her process started off with bad information, which led her to purchase a trailer, bring it to the property, apply for, pay, and receive a septic permit, costing $4,800 plus $14,000 she paid for the property, only to find out she is in violation of the County Codes. She stated she does not know how she got this far in the process before being told she was on the wrong track; her building permit is in the process and she has been working with staff to ensure she is doing the correct process; but at this point the zoning issue has held up her permit; and she would greatly appreciate being granted the rezoning needed to put a mobile home on her property.

Commissioner Scarborough stated at the last meeting when there was a request for mobile homes and the property was in the ten-year floodplain, the Board either tabled the request or refunded the application fee; however, in this case, Ms. Sanders said she was led to place a trailer on the property by misinformation. Mr. Enos stated for several years the Board has been rezoning ARR without knowing where the floodplain was; more recently it has learned where the 10 and 25-year floodplains are; so there are mobile homes out there in the ten-year floodplain that have been permitted.

Commissioner Scarborough inquired if Ms. Sanders said she was misled and had bad information; with Ms. Sanders responding that was initially when they told her she could put a mobile home out there provided it had wheels on it. Commissioner Scarborough inquired what did Ms. Sanders do in reliance of that information; with Ms. Sanders responding she put the mobile home on the property and applied for and received a septic permit.

Ms. Bentley advised she does not know what kind of information was provided to Ms. Sanders, but it seems she would have an opportunity to appear under Section 62-507, the vested rights procedure.

Commissioner Scarborough advised the Board has not proceeded with requests for ARR currently; if someone wants to back off and get their money back, the Board has given their money back; if they want to wait and see how the issue evolves with the floodplain, the Board has tabled those requests; but in Ms. Sanders' case, she may have special rights because she acted in reliance of certain things that occurred, so he will move to table the item so she can meet with the County Attorney to discuss her rights.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to table Item 4 until September 6, 2001, and instruct Ms. Sanders to discuss her rights with Assistant County Attorney Bentley, based upon her actions in reliance of things that may have been told to her. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD'S RECOMMENDATIONS OF
MAY 7, 2001

Chairman Carlson called for the public hearing to consider the recommendations of the Planning and Zoning (P&Z) Board, made at its public hearing on May 7, 2001, as follows:

Item 1. (Z0105401) Raymond J. Brewer's request for change from BU-1-A to BU-1 on 0.78 acre located on the northeast corner of U.S. 1 and the south end of Coquina Ridge Drive, which was recommended for denial by the P&Z Board.

Raymond Brewer advised the P&Z Board denied the request by 7 to 4; and requested reevaluation of his request to upgrade the zoning to BU-1. He presented copies of plot maps to each Commissioner; and noted he will explain why it should be BU-1.

Chairman Carlson advised from reading the Minutes of the P&Z Board meeting, the use is for used car sales; the neighbors are concerned about compatibility with the neighborhood and consistency with the Comprehensive Plan; and she is inclined to agree with the P&Z Board.

Raymond Brewer advised the plot maps came from the County records, but the color codes and markings are his; the property in question is circled in red; it is on U.S. 1 and the corner of Coquina Ridge Drive; roughly 150 to 160 feet is on U.S. 1, which is being six-laned in the next few weeks; and the areas in yellow are the businesses around his property. He stated directly across the street are two used car dealers; across from them is Bob's RV Mobile Home Sales and Service and Automobiles; next to that is Mobileland RV and Mobile Home Sales and Services; 300 feet down the road is an auto sales business; and directly across the street is Diamond 99 Marina, where there are boat sales, boat equipment, motors, and services. He stated his property sits in the middle of all those businesses; and that is why he requested BU-1.

Commissioner Higgs inquired if the property in Palm Shores marked C.P. is his sign company; with Mr. Brewer responding no, there is a sign company there, and to the south approximately 500 feet is Catana's Restaurant, but he only listed the ones with similar types of businesses that he wants to put on his property. He stated they sell used automobiles, mobile homes, parts and service, and the Marina does a lot of business. He stated he owns the house directly behind the property and the house next to it belongs to his brother-in-law.

Charles Almeida advised they contacted 35 of the 38 residents, and they were all against the rezoning; Mr. Brewer speaks of other businesses, but the rezoning conflicts with Policy 4.4 of the Future Land Use Element, which states it has to be on a collector or arterial highway; and the request is neither; Coquina Ridge is only 20-feet wide and cannot support that kind of business. He stated the marina was constructed in 1963 before the zoning laws were put into effect; the other businesses are on the other side of the proposed six-laned road; the building Mr. Brewer owns is going to be an office; there is a buffer requirement of 20 feet; and the building is within the 20-foot buffer zone, so it fails to meet legal requirements. Mr. Almeida advised he spoke to Mary Brooks about U.S. 1 construction; Coquina Ridge is a U-shaped road with access north and south at the present time; however, when U.S. 1 is completed, they will not be able to exit the north end and will have all traffic forced to come out on the 20-foot wide roadway where Mr. Brewer wants to put additional congestion. He stated 450 feet south on U.S. 1 is Mobileland Trailer Park with 271 spaces, which are almost all filled; the only way those people can get to their places is to make a U-turn in front of Coquina Ridge Drive; a person coming up U.S. 1 has to decelerate to make a turn into Coquina Ridge Drive while people wanting to go to the marina are decelerating to make a U-turn to go to Mobileland; and there is a traffic congestion in that area where accidents have occurred quite often. He stated in addition, U.S. 1 will not have deceleration and acceleration lanes; going in and out at the intersection with Coquina Ridge Drive that is too small will get worse; and a future owner could put something more undesirable on the property. Mr. Almeida advised the businesses Mr. Brewer alluded to are primarily on the other side of U.S. 1 where there are no residences; they have a small residential community that was platted in 1928; the roads are narrow and the children play on the street; and the business would add traffic. He stated in 1974, the County rezoned the property from RU-1-9 to BU-1-A; it was a good decision then; and it should stay.

Ruth Almeida advised Coquina Ridge is a small horseshoe platted in the 1930's, and is about two-tenths of a mile long; there are 38 residences, all single-family homes, and four residential lots, with the exception of Diamond 99 Marina, which started in the 1960's; and the road is 20 feet wide with no sidewalks, minimum shoulders, and substandard. She stated most of the homes' setbacks are nonconforming and some as close to five and ten feet from the road; and in the 1980's they were granted permission to install a six-foot concrete wall because their house had been hit twice in the bedrooms when people made the swing off U.S. 1 onto Coquina Ridge. She noted since then the wall has been hit once. Ms. Almeida advised the road is very narrow and dangerous; all the properties on the east side of U.S. 1 are on wells and septic tanks; there is no public water or sewer service to the entire area of Coquina Ridge; and that means Mr. Brewer's property is on well and septic tank. She stated many of the wells are shallow and go dry under arid conditions; many septic fields and tanks are nonconforming by today's standards; it is an aquifer recharge area; and all the stormwater and wastewater that will drain off the cars, RV's, boats, etc., and washing of them would flow into Otter Creek and the Indian River because the property sits on the Indian River. She stated the Board can see by their petition that all the residents oppose the rezoning.

Lisa Freeman advised she mailed a pictorial album of Coquina Ridge to the Board; the first page is an example of the car lot Mr. Brewer used; there are five or six cars on it; and she understands his intent is to also sell used RV's and boats. She stated her main concern is water usage to keep the dirt off the cars and demonstrate outboard motors; and another concern is the increase in traffic, not only at the south end but also from the north end to get to his property if someone misses the turn. She stated one of her neighbors wrote a letter and asked her to deliver it; he pointed out he has been in the neighborhood since 1962 and was approached by the owner of the marina in the mid-1960's for a petition to put in ten slips and a boat ramp and make a charming place to drop in and rent slips; however, it has developed into 30 slips and an extensive building, but it is still charming and not bad for the neighborhood, other than showing that no matter what the intentions are, if Mr. Brewer sells the property, the new owner would not look out for Coquina Ridge. Ms. Freeman advised Mr. Brewer's property is the first house on the road; it has been neglected, has overgrown vegetation, four to five cars with "for sale" signs parked in the ten to 15-foot parking space to his door, and next door is a similar size building with a lot of debris near it. She stated those two properties are the exception to the neighborhood; they all take care of their homes and try to make home improvements; and she has been embarrassed about Mr. Brewer's property before and is not happy with it, but never stopped to inquire why it was allowed and if the zoning allowed him to do what he has done on the property. She stated if he continues to try and change things for the worse, she opposes it; and her letter and pictures have a number of points to be made.

Mary Carlson advised she supports the comments of the previous speakers opposed to the rezoning; the properties owned by Mr. Brewer are in extremely poor condition; and if it is any indication of what they can expect should the Board approve the rezoning, they would be in serious trouble. She stated Mr. Brewer never mentioned that although they are small unimposing homes north of the south exit to Coquina Ridge, they are residential homes; immediately left as one turns south onto U.S. 1 there are two or three lovely homes; and the marina and home erected on the marina property are well cared for and a charming addition to the end of the road, which she cannot say for Mr. Brewer's property. She stated Coquina Ridge is a tranquil street; they are all worried about whether there will be lavatories, how they are going to be disposed of, and the advisability of that kind of construction on U.S. 1. She stated it is very dangerous to exit the south end of Coquina Ridge right now; all the school busses come in the south end and go out the north end, turn around, and go south on U.S. 1; and she understands that is not going to be permitted in the future and they would have to exit the north end and continue north. She noted that leaves them with a south exit, which is already very dangerous, and should have a traffic light there now.

Guy Maxwell stated his opposition is as strong as his neighbors' opposition; it is a very quiet neighborhood with a very narrow road that does not handle the current traffic very well; he has three children who play in the street, ride their bikes, skateboard, etc.; and it is getting scary now. He stated the neighborhood cannot support traffic for a used car lot; there are no feeder roads; it is in one end and out the other end; and they cannot get back on U.S. 1 without going north or south on Coquina Ridge. He stated it is a unique neighborhood on wells and septic tanks and probably barely supporting the residential usage; the marina has been there forever; the subject property is about a six to seven-foot drop from U.S. 1 to the river; and any kind of auto leakage will go into the ground and straight into the river.

Mr. Brewer advised he is not planning to work on automobiles on the property or change oil and filters; he will pay others to do that; Coquina Ridge is a small road, but he does not intend to use that road; U.S. 1 is where the front of the car lot is going to be; and the house that is there is livable, has adequate water, electricity, and restrooms, and that is where the office will be. He stated they do not intend to use Coquina Ridge Drive, but it is a public road paid for by the taxpayers. Mr. Brewer stated the business part of the property will be on U.S. 1; that is where the traffic will enter and exit; he will not have RV's or boats; and it is going to be used cars, trucks and vans.

Commissioner Colon inquired if Mr. Brewer is planning to use the house as an office; with Mr. Brewer responding yes. Commissioner Colon inquired if people go forward with a transaction, would they have to go through Coquina Ridge to make that arrangement; with Mr. Brewer responding no, the corner of Coquina Ridge will be cleared off and leveled; cars, autos, and trucks will be there; the perspective customers will pull off U.S. 1; and it will be a small operation and not have people in and out like they do at the marina which uses Coquina Ridge. He stated deals that are consummated and talked about would go to the rear of the lot in the office. Commissioner Colon inquired if Mr. Brewer plans to put used cars on the lot and not build a structure to use the entrance to the business off U.S. 1 and the home as an office; with Mr. Brewer responding yes, the property is zoned BU-1-A which allows an office, but the front has a Coquina Ridge address.

Chairman Carlson advised based on the comments staff provided, although the property has frontage along a major arterial, it is located at the intersection of a local street; and based on the incompatibilities she has seen and what staff outlined in the report, BU-1-A is a better classification. She stated the limited size of the property might hinder the potential for buffering, landscaping, or setbacks from the residential area; so she would support a motion to deny.

Motion by Commissioner Colon, seconded by Commissioner Scarborough, to deny Item 1 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 2. (Z0105402) Cocoa Expo, Inc.'s request for change from TR-1 and TR-3 to BU-1 on 6.30 acres located on the north side of SR 520, east of Friday Road and on the east side of Friday Road, north of SR 520, with frontage on SR 520; which was recommended for denial by the P&Z Board.

Chairman Carlson advised individuals spoke against the project at the P&Z meeting; and inquired if the applicant has since purchased those individuals' properties.

John Picard, professional engineer with Stottler Stagg & Associates, advised there was a noise issue because of the proximity of their properties to the park; since that time, the applicant has purchased the properties, which will become buffers; so the individual has written a letter rescinding his opposition, which should be in the County's files. He stated both parcels are about ¼ acre each and will provide a ½-acre buffer and 150 feet more distance from adjacent properties.

Chairman Carlson inquired if the long parcel that goes into the TR-3 area was purchased from the developer to the north; with Mr. Picard responding yes, and the two properties located to the left along Friday Road is owned by the applicant. Chairman Carlson inquired if that is going to be used as a buffer also; with Mr. Picard responding basically it is a buffer area. Chairman Carlson inquired about the use of the parcel near I-95; with Mr. Picard responding it is vacant land with no immediate plans and was acquired as part of the perimeter lands. Chairman Carlson stated her concern is the trailer park immediately above the property; there have been continuous complaints; the properties that were purchased had the biggest complaints; but she is concerned about the parking along Friday Road; and inquired what has been done to resolve that issue. Mr. Picard stated Giles Malone, President of Cocoa Expo, will tell the Board about future plans and issues that have not been established yet.

Giles Malone, President of Cocoa Expo, Inc., advised the issue regarding parking has been alleviated considerably by clearing of the area immediately behind the stadium for additional parking. He stated it involves three pieces of property they purchased; and the TR-3 parcel has been owned for four or five years and they do not have plans for development of that parcel at this time.

Chairman Carlson inquired if staff can advise the Board on issues of permitting and any violations on the property; with Zoning Official Rick Enos responding any commercial uses on the parcels are not appropriate at this time; he understands they are using the northwest parcel for soccer fields; and if this request is approved, it would be followed up with a request for a conditional use permit required for any outside uses. He stated he understands Code Enforcement has visited the site about the use of the soccer fields. Chairman Carlson inquired about requirements for parking on the property during major events; with Mr. Enos responding he is not familiar with parking requirements as they apply to the use. Chairman Carlson inquired what has been done to alleviate the parking along Friday Road for major events; with Mr. Malone responding they have cleared the area behind the baseball stadium to the east of the main Cocoa Stadium, and recently purchased 2.5 acres on the corner of Friday Road and SR 520. He stated he has been working since 1989 and in the last two or three years had less problems with parking because they bus people to the events from various hotels. He noted the area behind the stadium should also alleviate the parking problems.

Chairman Carlson stated she understands that the permitting will include further restrictions to institute towing practice that needs to happen if people park illegally along Friday Road, and that it will be the responsibility of the applicant to make sure they are not parking along there. She inquired if that can be made a condition of the rezoning; with Mr. Enos responding it would have to be voluntarily provided by the applicant through a binding development plan. Chairman Carlson inquired if Mr. Malone would be willing to enter into a binding development plan that includes those issues; with Mr. Malone responding certainly. Chairman Carlson inquired if Mr. Malone is willing to identify the two parcels to the north and the other parcel discussed as buffers for the park; with Mr. Giles responding yes. Chairman Carlson stated with those conditions, she has no problem approving the rezoning, but would like those conditions as part of the approval.

Assistant County Attorney Eden Bentley advised there is an enforcement problem with the parking issue; staff experienced something similar with Mathers Bridge; and it was extremely difficult to enforce. She stated she does not know how the County would enforce it in a binding development plan method; the Mathers Bridge problem was court action; they had to go back to the judge and still had difficulties; and this method would be even more difficult because the Board would almost have to revoke the zoning to make it have any teeth.

Chairman Carlson stated there are problems with the parking, so she is hesitant about adding BU-1 zoning if they cannot solve the parking problem; but she would be willing to table the item to work out the issues with Mr. Malone. Mr. Malone stated they hire Brevard County sheriff deputies and post them along the road; with Chairman Carlson responding she understands that, but it still has not helped and needs to be a tow-away situation. She recommended a meeting with Mr. Malone to discuss a binding development plan and tabling of the item.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to table Item 2 until August 2, 2001 Board of County Commissioners' meeting for the Chairman to meet with the applicant to discuss a binding development plan. Motion carried and ordered unanimously.

Commissioner Scarborough requested Ms. Bentley provide the Commissioners with a short memo on the problems with enforcing parking restrictions prior to the item coming back to the Board.

Item 3. (Z0105403) Ralph E. Hughes and E. Lee Hughes' request for change from AU and EU-2 to all AU on 4.33 acres located on the east side of the south end of Palomino Road and the north end of Evers Road, which was recommended for approval by the P&Z Board.

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

Item 4. (Z0105404) Einstein Property & Management, Inc.'s request for change from AU to BU-1 on 5 acres located on the north side of SR 520, west of I-95, which was recommended for approval by the P&Z Board with a binding development plan.

Commissioners Scarborough, Colon, Higgs, and Carlson advised they met with the applicant.

Zack Osbrach, Director of Einstein Montessori School in Gainesville, advised he would like to open another charter school in Cocoa on SR 520 for children with dyslexia; and presented copies of his plans to the Board.

Commissioner O'Brien inquired if there are any problems with the request; with Chairman Carlson responding she does not have a problem, but Mr. Osbrach may want to make his presentation. Commissioner O'Brien stated the Board can approve it with the binding development plan; and the jurisdictional wetlands were discussed and reduced to 70% of the property. Mr. Enos noted a wetland determination was made. Commissioner Scarborough inquired if Mr. Enos reviewed the plans; with Mr. Enos responding yes.

Motion by Commissioner O'Brien, seconded by Commissioner Colon, to approve Item 4 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Mr. Enos inquired if the intent of the motion is to rezone the wetland as EA; with Commissioner Colon responding yes. Commissioner Scarborough stated any time the Board deals with wetlands on commercial property, that is the intention of the Board and a matter of record.

Mr. Osbrach advised the wetland was drained about four years ago; 98% of the plants are upland plants; and the reason he moved the school behind the wetlands is because staff's report recorded it as 30%.

Commissioner Scarborough inquired if Mr. Osbrach had a problem with rezoning the wetland as EA. Mr. Osbrach inquired if it would restrict him from doing another phase of the school in the future; with Chairman Carlson responding yes, the wetlands cannot be used for commercial enterprises. Mr. Osbrach stated it is actually institutional. Commissioner Scarborough stated if Mr. Osbrach wants to discuss it further, the Board has to reconsider the item; and inquired if Mr. Osbrach wants the Board to reconsider it; with Mr. Osbrach responding no, that is fine.

Item 5. (Z0105405) Suntree Members Club, Inc.'s request for CUP to permit a light source exceeding an illumination of 50 foot-candles and fixtures exceeding 400 watts per bulb in a PUD on 0.414 acre located west of Wickham Road and north of St. Andrews Boulevard, which was recommended for approval by the P&Z Board, and a Code amendment to make this action an administrative process.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Item 5 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 6. (Z0105406) Ronald D. Levy's request for change from AU and GML to BU-1 on 2.787± acres located on the west side of Wickham Road, north of Windsor Estates Drive, which was recommended for approval by the P&Z Board with a binding development plan on the amended legal description.

John Newton, representing the applicant, advised he is working on a project with Jim Twigg, the owner of Bob's Bicycle Shop on U.S. 192 in Melbourne; several years ago they started looking for a site to build another bicycle shop in the Suntree area; and they could not find a site that was affordable and small; but after a long period of time through a mutual acquaintance it was brought to his attention that Dr. Levy had a piece of property he might be willing to sell.

Commissioner Scarborough advised if there are no objections, he would move to approve the recommendation.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Item 6 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 7. (Z0105407) Gushing Waters Family Resort, Inc.'s request for change from AU to RU-2-4 on 22.447 acres; and from AU to BU-1 or RU-2-4 as an alternate on 1.34 acres located on the north side of SR 520, west of Friday Road, which was recommended for approval by the P&Z Board with a binding development plan to include no outside advertising of the country store.

Chairman Carlson advised she met with the applicant.

Attorney Tim Pickles, representing the applicant, requested rezoning of 22.4 acres from AU to RU-2-4 and 1.34 acres from AU to BU-1 to establish a time share with 52 log cabin units and for a general store and wedding chapel. He stated when the applicant submitted the application, staff had concerns about compatibility; and they submitted a binding development plan voluntarily to the P&Z Board and the Board of County Commissioners which should alleviate those concerns. He stated they are willing to restrict the retail use solely to the guests of the time-share and same for the wedding chapel, and no outside advertising for the store. He stated the request will not have significant impact on the neighbors; documents submitted to the Board show support of the surrounding neighbors; and no one is here in opposition to the use. He stated Mr. Cooper can explain the specific uses of the property.

Commissioner Higgs stated she is looking at a picture of gushing waters and is perplexed because she did not know that West Cocoa had gushing waters and rocks; and inquired if that is out there; with Mr. Cooper responding it is the Gushing Waters Resort in Maryland, but they plan to create waterfalls. Commissioner Higgs inquired if the density will be limited on the site; with Mr. Pickles responding the plans submitted total 52 units.

Commissioner Colon inquired when will the project be completed if approved; with Mr. Pickles responding the time share portion has to be submitted and approved by the State, and they have to go through the permitting process. Dave Cooper, President and CEO of Gushing Waters Vacation Resort, Inc., stated they hope to start as soon as they obtain all the permits and approvals from the State; they have their first submittal to them; they have to submit the completed documents; but they do not foresee any problems; and as soon as they receive the permits from the County and State, they intend to proceed as soon as possible.

Commissioner Higgs advised the project is a time share and short-term rental; and inquired why it is not required to be in a tourist use; with Mr. Enos responding the multifamily classification does not prohibit short-term use. Assistant County Manager Peggy Busacca advised the Code is mute on this request. Commissioner Higgs stated there are issues of short-term rentals in a multifamily zone; and the Board needs to think if it wants to perpetuate short-term rentals in residential categories. She noted this is a hotel use; and what the Board is considering is a residential zoning classification. Chairman Carlson stated that is a good point, but she does not know what the Board can do at this point since that issue has not been addressed with any exactness. Commissioner Higgs stated they are required to collect the bed tax; someone operating a hotel or motel has certain restrictions in a tourist use classification, and this is a hotel/motel accommodation in a multifamily zoning classification that is not required to meet the requirements of the tourist use zoning classification. Mr. Pickles advised if the Board is concerned with impact and meeting certain criteria, that could be a concern the Board can express; but at this point, without being prohibited under the current Code, it would not be an issue for this applicant. Commissioner Higgs inquired why is it not a hotel; with Mr. Pickles responding because it is a time-share. Chairman Carlson inquired what is the length of stay; with Mr. Cooper responding it depends on how many weeks they purchase. Mr. Pickles stated the time-share is ownership of property and that is why it is not a hotel and more like a condominium; and that is why it is regulated by the State. Commissioner Higgs inquired what would be required in a tourist use classification; with Mr. Enos responding they would have to be located properly according to the Comprehensive Plan either on the ocean or major intersections, but the major difference with TU-1 zoning they are limited as to the number of kitchenettes they could have because it is a hotel room and up to 25% of the units can have kitchenettes. He stated with time-share it is ownership and full service units. Commissioner Higgs inquired if a tourist use in a hotel has a limited time they can stay; with Mr. Enos responding yes, a maximum of three months according to the Zoning Code.

Commissioner Colon inquired if they will be required to collect the bed tax. Commissioner Higgs stated any kind of rental for less than six months is required to pay; and inquired if it is a rental; with Mr. Pickles responding it is not a rental, it is ownership of a portion of the unit. Commissioner Higgs commented so they probably avoid the tourist tax because it is not rental. Commissioner Colon recommended the Board address the issue of people renting rooms in their homes on the beach. Chairman Carlson advised staff is looking into that; and recommended this issue be folded into that discussion. Chairman Carlson stated the school overcrowding should not be affected by a time-share development.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to approve Item 7 as recommended by the P&Z Board.

Commissioner Higgs stated she will vote no because she believes it is an inappropriate category in light of what the real use is.

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

The meeting recessed at 7:11 p.m., and reconvened at 7:32 p.m.

Item 8. (Z0105501) Brevard County Board of County Commissioners on its own motion, authorized administrative rezoning on property owned by Joel S. Moss, Trustee, from BU-1 to RU-1-9 on 2.3 acres located north of U.S. 192 and west of Wickham Road, which was recommended for approval by the P&Z Board.

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

Item 9. (Z0105502) Melvin D. Peio's request for Small Scale Plan Amendment 01S.5 that proposes to change the Residential Density Guideline from Suburban one dwelling unit per two and a half acres to Suburban one dwelling unit per acre on the Residential Density Guideline's Map of the Future Land Use Map; and a change from AU to RR-1 on 1.55± acres located on the east side of Powell Road, north of Hield Road. The LPA recommended approval of the small-scale plan amendment, and the P&Z Board recommended approval of the zoning change.

Commissioner Higgs stated she does not understand the reason for the small-scale plan amendment and zoning change in light of existing land use patterns throughout the area and the existing zoning; and requested justification.

Mel Peio advised the Small Scale Plan Amendment went into effect and made the Plan suburban one unit per two and a half acres; he wants to change it to suburban one unit per acre because of the size of the lot which is 1.55 acres and not two and a half acres; and the rezoning from AU to RR-1 will allow Robert and Cindy Shafer to construct a residence on the property.

Commissioner Higgs advised everything in the area located in the County has larger lots and AU zoning; and Mr. Peio is requesting something that is inconsistent and incompatible, so she needs justification for that. She inquired how long has Mr. Peio owned the property, was it purchased at that size, and does he have a right to build on it; with Mr. Peio responding he bought the lot 20 years ago at the current size; before the Small Scale Plan Amendment, he was able to change the AU to residential and could build a home; but in 1992 the Comprehensive Plan was amended and changed everything in the area to two and a half acres per unit. Mr. Enos advised at the time Mr. Peio bought the lot, the Comprehensive Plan was one unit per acre; it is zoned AU and does not meet the nonconforming lot of record criteria; the Comprehensive Plan changed to one unit per two and a half acres in 1991; so now he cannot qualify for RR-1 unless he gets a Plan amendment.

Commissioner Higgs inquired if he bought it as an illegal lot; with Mr. Peio responding at the time he purchased it in 1981, he believed he could build on it with a zoning change from AU to RR-1. Mr. Enos advised when Mr. Peio bought the lot in 1981, the lot size was established at 1.5 acres; if he had it rezoned at that time to RR-1, it would have gotten approval, but he did not do that; and between 1981 and 1991, the Comprehensive Plan was changed to one unit per two and a half acres, so it is not a legal lot. Commissioner Higgs inquired if there are other options; with Mr. Enos responding the lot is substantially undersized; and there is no way to do an administrative waiver because it is 60% of the minimum lot size requirement.

Mr. Peio advised the property to the north is two units per acre; the property across Powell Road is six units per acre, and there are single-family units on that and one-acre lots; and to the northwest is vacant property designated as one unit per acre. He stated all the land around his property is designated at a higher density than his property except to the east and south, which are still one unit per two and a half acres.

Commissioner Colon advised across the street from the property is Palm Bay; it would be compatible with Palm Bay's zoning almost like the property to the west of it; but since it is on the corner, she does not want to open a can of worms; however, it is not incompatible to its surroundings either. She requested assistance from the Board as she has not decided what is best for the community.

Commissioner O'Brien advised Mr. Peio purchased the property in 1981 to build on it some day; it is one and a half acres; since that time, the Board changed the rules considerably; and whether the owner was aware of what was occurring to his property over the past 22 years is unknown. He stated it would be appropriate to rezone it to RR-1 as requested and recommended unanimously by the P&Z Board.

Commissioner Higgs inquired if Mr. Peio is selling the property; with Mr. Peio responding yes. Commissioner Scarborough inquired what is the density of the property in Palm Bay; with Planner III Todd Corwin responding it is a rural residential classification and basically one-acre lots. Commissioner Scarborough inquired if the property to the north is in the County; with Mr. Corwin responding yes. Commissioner Scarborough inquired if the little parcels are platted GU property; with Mr. Enos responding it is a very old plat with 25-foot lots that has never been improved. Commissioner Scarborough inquired if they cannot build on those lots; with Mr. Enos responding if a person improves the streets and accumulates enough lots, he or she could get a building permit, but the improvements are necessary in order for that to happen. Commissioner Scarborough advised the request can go either way with good arguments. Commissioner O'Brien stated it was approved unanimously by the LPA and P&Z Board and he cannot find substantial evidence to override their recommendations.

Motion by Commissioner Colon, seconded by Commissioner O'Brien, to adopt an Ordinance amending Article III, Chapter 62, of the Code of Ordinances of Brevard County, entitled "The 1988 Comprehensive Plan," setting forth the Fifth Small Scale Plan Amendment of 2001, 01S.5, to the Future Land Use Map of the Comprehensive Plan; amending Section 62-501 entitled Contents of the Plan; specifically amending Section 62-501, Part XVI(E), entitled The Future Land Use Map Appendix; and provisions which require amendment to maintain internal consistency with these amendments; providing legal status; providing a severability clause; and providing an effective date; and approve Item 9 as recommended by the LPA and P&Z Board. Motion carried and ordered unanimously.

Item 10. (Z0105101) Stafford A. McKinney's request for CUP for alcoholic beverages for on-premises consumption in a BU-1 zoning classification on 0.47 acre located on the northwest corner of Kennedy Street and Bethune Avenue, which was recommended for approval by the P&Z Board.

Jason Lawson, representing Millennium Lounge in Mims, requested a conditional use permit for consumption of alcoholic beverages in the lounge. He stated it was approved by the P&Z Board; he understands the concerns of the residents about noise levels and other things; and he plans to work with the residents to address the issues and take care of any problems.

Juanita Barton, representing East Mims Progressive Civic League, advised the Millennium Lounge is the opposite of what the people are trying to do in their community; over the last two years they have come to the Board seeking help to make changes in their community; for many years they have been designated a HUD area; and in order to be a HUD community, there has to be blight in the community, which means there are things that are not conducive to a quality of life that everybody wants to have. She stated at one time there were three bars in their community; now it is down to one that serves alcohol; they have been trying to get drugs out of their community as well; and if they have a combination of alcohol and drugs, it will almost be impossible to eliminate that kind of blight. Ms. Barton advised they are also working to change the face of the East Mims area; many people think negatively of East Mims, and they are trying to change that; unfortunately, people have come into the area and many times are the ones who cause the problems. She stated the residents live there; whether they want to or not, they own the name of a bad community; and they do not want that anymore. She applauded the young men for wanting to develop their entrepreneurial skills and set up a business in the community, but it should be something that brings added value to the community. Ms. Barton stated when the County came to them about the five-year Comprehensive Plan, a lounge was not one of the things they said they wanted; and because she lives there, that is not something that she wants.

Commissioner Higgs inquired about the parking situation; with Ms. Barton responding there is no real parking for the facility; it is not a planned community, and they are trying to get the roads straightened out, but are having a hard time because people built too close to the right-of-way; so there is no real parking areas for the number of people who will be using the facilities. Commissioner Higgs inquired if there are drainage issues; with Ms. Barton responding Mr. Seigler could answer that, but right now the area is not paved.

Dwight Seigler, President of East Mims Progressive Civic League, advised he hears concerns from the community all the time about noise issues; noise travels very far at night; the club does not have a license to sell alcohol, and that is why they are here today; but the residents do not want the alcoholic, which brings in people from outside of the community. He stated the applicants all live outside of East Mims, in Titusville and Rockledge; and the club will not help them achieve the goals of their Comprehensive Plan because alcohol will bring in large crowds and there is no parking other than along the roadway. He noted sometimes people park in other people's yards; and he gets calls concerning that issue. Mr. Seigler requested the Board deny the application for alcohol so they can continue with their five, ten, and twenty-year plan to make East Mims a better residential community. He stated the three buildings that were used for clubs were grandfathered in years ago before the County had a Zoning Code; those that have gone out of business now have to come back and apply for a permit; and that permit could go on for years and years if the Board approves it, and would defeat their purpose.

Donna Cooper, Vice President of East Mims Progressive Civic League, advised she has a 13-year old daughter and does not want her to grow up in that environment with alcohol and other things that may be part of those activities. She stated they have been trying for two years to clean up their neighborhood; in the last year they have taken out over 100 tons of garbage and trash; and they do not want to add any more to what they have not picked up yet, but plan to pick up in the future. She stated they said they would clean up afterwards, but on Sunday mornings when people are going to church, they will see bottles and trash that were not picked up the night before even though they may pick them up the next day. Ms. Cooper stated the noise is the biggest problem; her mother and grandmother live in the area; when they play music at the club, the windows rattle and things move in their home; and they should not have to deal with that environment. She requested the Board not grant the permit if at all possible.

Eve Robinson advised she supports the permit for the lounge; she knows Mr. Lawson personally; he will be there to better the community by taking part in things like Mims Easter Parade and celebrating other events that Mims participates in; and he is not separating himself from the community, but joining it to try and make it a better place. She stated she understands there may be things that go on in the evenings at a nightclub, but Mr. Lawson is not there to hurt anyone and is there to run his business and make his living; and requested the Board take that into consideration.

Alexis LaChapelle advised she supports the issuance of a conditional use permit, is part of the community, and feels Mr. Lawson has every right to operate a place of business and succeed at it. She stated he is reasonable and willing to work with the residents of the area; and has shown that by meeting with them and addressing their concerns. She stated he has enforced rules that no one can loiter in the parking area and have to come in the lounge or leave the premises; he hired security to enforce that and to make it a more secure and respectable establishment; and not only does Mr. Lawson plan to operate the lounge as a nightclub, but also as a legitimate business that involves the community with activities for children during the day and holidays. She stated regarding the noise level, she does not believe the music can be heard outside the club with the doors shut; cars drive by with loud music, but there is nothing Mr. Lawson can do about that other than make them leave his premises. Ms. LaChapelle stated they do not tolerate drugs in the club; and it will keep the children off the streets and in the club instead of hanging out, playing loud music, and selling drugs on the streets.

Charles Smith, representing Unity, stated he will not tell the Board the people are not concerned about their community, but he can tell the Board they are young men trying to be successful with a business, and they have a group called "Unity Production" that goes out and helps young children with a grade point average under 2.0. He stated he runs a "Scared Straight" Program to scare the children off the streets; and the purpose for the license is to get the young children off the corners and to the nightclub where they can stay from 9:00 p.m. until 2:00 a.m. when it is time to go home. He stated he is the head of promotions and security at the club; he cannot stop an ongoing car and tell the driver to cut down the music; however, if that person pulls into the parking lot, he must go inside the club or he would call the law and issue a trespassing warrant so that the person would not be allowed to come back on the premises. Mr. Smith advised there are no drugs at the club; since they have been open without a license, they have not had any criminal activities at the club; and they have been approved for parking after the County sent someone out to look over the parking situation. He stated the club has been there for over 20 years with the same sand and dirt; and they will do whatever it takes to convince the people they are willing to work with them. He stated they are young entrepreneurs trying to be successful at a business; they are on the verge of signing a big-time record label with the president of the organization in charge of the club; either way it goes, there will be noise and drugs in the area; but his concern is what goes on inside the Millennium because they cannot do anything with what goes on outside of the club. Mr. Smith stated most of the people do not live within 2,000 feet of the club; and inquired how can they hear noise 2,000 feet away. He stated they are young people who deserve the right to have a shot at a business; they have not messed up or did anything that would show the Board they do not deserve a shot at a legitimate business; and they deserve that right. He displayed a shirt with their record logo and a CD that will soon come out; and noted they are already doing positive things. He stated they are trying to open the club and have concerts where the young people can come for $5.00 or $2.00 to get them off the streets for four or five hours; and presented a petition to the Board signed by people within a two-block radius of the club supporting their request.

Commissioner Colon congratulated the citizens of East Mims who came out in force to protect their community; and stated she is proud of them for going ahead and cleaning up their community. She stated the Board's job is to protect the citizens; comments she heard was they could do nothing about what goes on outside of the club; that is exactly right; and that is why she will not support the request because they will not be able to protect the residents. She stated bringing children into the club from 9:00 p.m. to 2:00 a.m. is not good; she would not want children out at 2:00 a.m. at a club; and if the club wants to bring the young children in, it should be for something positive. She stated she hopes the young men continue to do positive things in the community; that is what they said they do; the Board's job is to protect the quality of life in the community; so she will move to deny the request.

Motion by Commissioner Colon, seconded by Commissioner Scarborough, to deny Item 10.

Commissioner Scarborough advised the 100 tons of trash did not get to the street on its own; and there were a lot of good people who carried it out there. He stated Section 62-1901.c.(1) relates to impact on adjacent properties, compatibility with the character of adjacent properties, impact on property values, and adequacy of ingress/egress to serve without burdening adjacent properties; and Section 62-1901.c.(2) relates to noise. He stated the aerial map depicts a residential area with a piece of property not on any major arterial road or on U.S. 1, but in the middle of a residential area; if it was not grandfathered in, it would never have come to the Board; so he will support the motion.

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

Item 11. (Z0105102) Don Whidden's request for change from GU to ARR on 2 acres located on the south side of Bear Trail, west of Satellite Boulevard, which was approved by the P&Z Board limited to one home site.

Commissioner Scarborough advised the Board took action on this request before, and asked Mr. Whidden to enter into a binding development plan; he did not take action in time; but staff has suggestions on how to proceed.

Mr. Enos advised Mr. Whidden was not able to provide a binding development plan in time, therefore, according to the Code, the zoning request was essentially withdrawn; and Mr. Whidden asked that the Board rehear it. He stated the Board can approve it or approve it with a binding development plan, which staff has developed for his signature.

Commissioner Scarborough inquired if a binding development plan is agreeable to Mr. Whidden; with Mr. Whidden responding if it combines the two lots now and forever, that would be okay; but if it has setbacks and other restrictions, he is not ready to agree with that at this time. He stated he thought the concern was the density; with Mr. Enos responding the proposed binding development plan speaks only to the density of one unit on the two lots. Mr. Whidden stated if he can have a mother-in-law apartment and a single-family residence, he would have no problem combining the two lots. Commissioner Scarborough inquired if that was okay with staff; with Mr. Enos responding yes.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to approve Item 11 with a binding development plan limiting the property to one homesite. Motion carried and ordered unanimously.

Item 12. (Z0105103) Billieann Folsom Tadich and James J. Tadich's request for change from AU to RR-1 on 4.46 acres located on the southeast corner of Singleton Road and Parker Street, which was recommended for approval by the P&Z Board on the south one acre as amended by the applicant.

Andy Bradley advised he purchased the property from Billieann and Jim Tadich; originally it was deeded as five acres; he wanted to split it in half and keep it zoned AU; but with the road easements, it reduced the original five acres to a size where he cannot do that and keep the AU zoning. He stated he would like to rezone one acre as RR-1 so he can sell it; and noted that is what the surrounding neighborhoods are.

Commissioner Scarborough stated RR-1 has been discussed by the Board; there is RR-1 directly to the south; so he will approve the request to go in that direction.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to approve Item 12 as recommended by the P&Z Board. Motion carried and ordered; Commissioner Higgs voted nay.

Item 13. (Z0105104) Praxair, Inc.'s request for Small Scale Plan Amendment 01S.4 that proposes to change the land use designation from PIP to Heavy/Light Industrial on the Future Land Use Map, and change from IU to IU-1 with CUP for additional building height up to 125 feet, and CUP for heavy industry on 6.293 acres located on the east side of Hammock Road, opposite of and immediately north of the eastern terminus of Wiley Avenue, which were recommended for approval by the LPA and P&Z Board.

Commissioner Scarborough advised on the surface the request looks more substantial than it is; as a practical matter, it will not change what is in the area, but would allow for a more viable operation; so he will make a motion in favor of the request.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to adopt an Ordinance amending Article III, Chapter 62, of the Code of Ordinances of Brevard County, entitled "The 1988 Comprehensive Plan," setting forth the Fourth Small Scale Plan Amendment of 2001, 01S.4, to the Future Land Use Map of the Comprehensive Plan; amending Section 62-501 entitled Contents of the Plan; specifically amending Section 62-501, Part XVI(E), entitled the Future Land Use Map Appendix; and provisions which require amendment to maintain internal consistency with these amendments; providing legal status; providing a severability clause; and providing an effective date; and approve Item 13 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 14. (Z0105105) Nikki L. Perry and Patrick J. McDonald, Jr., and Daniel E. and Lucy A. Nugent's request for change from GU and AU to AGR on 5 acres located on both sides of Old Sharpes Road on the south side of Hibiscus Avenue, which was recommended for approval by the P&Z Board.

Nikki Perry advised she gave Rick Enos a letter withdrawing the request for AGR. Mr. Enos advised Ms. Perry withdrew the AGR and requested SR on the north 150 feet, which would match the SR in the area, and AU on the remainder of the property, most of which is AU at this time.

Commissioner Scarborough stated he heard Ms. Perry was going to limit agricultural activities on the west side of the demarcation line since it has SR adjoining that portion of her property. Ms. Perry stated she said she wants to keep that side for pasture, but there are two different zoning classifications-SR on the front and AU on the back or AU on all of Lot 1. She stated she would prefer AU for all of Lot 1 and the 10 feet of Lot 4 and a binding development plan prohibiting horses on the first 150 feet of Lot 1 because SR zoning setback requirements puts her in a corner. Commissioner Scarborough stated what he is dealing with is the SR evolution there; to the greatest extent Ms. Perry's use is compatible; but one thing he does not want to do is allow activities that take away from someone else's property value. He stated SR on the front makes sense, and limiting agricultural activities where her property backs up to SR also makes sense. Ms. Perry stated her agricultural activity is two horses; and she does not plan to have cows or chickens. Commissioner Scarborough stated it would be nice, if Ms. Perry wanted to have heavier agricultural activities, that they be on the east side of the back portion of the property. Ms. Perry inquired what is considered heavy agricultural uses; with Commissioner Scarborough responding the Board gets complaints about agricultural activities because of odors, heavy equipment, etc. that are not nice or compatible; AU can be anything; Ms. Perry could sell the entire parcel and someone else comes in with agricultural uses that negatively impacts the area; the Board would not be rezoning Ms. Perry, it would be rezoning property; and the property will be there long after everybody is gone.

Veronica Lawhon, owner/developer of Veronica Estates in Canaveral Groves, presented a photo album and packet to the Board depicting her development, and stated it is going to be an upscale community, starting with the entrance sign. She stated she met with Commissioner Scarborough, but because of the short time between meetings, she did not get to all the Commissioners, so she typed a letter describing what has happened; and read portions of the letter as follows: "I hope to gain your confidence and vote in not allowing Mrs. Perry to change her zoning to AGR or AU. It does not conform to the area of Veronica Estates. This project consists of 123 acres that has a zoning of SR. Over four years ago we started this project. The 123 acres had an access to Canaveral Groves Boulevard, but the homeowners did not want the extra traffic on Canaveral Groves Boulevard, so we had to come off Grissom. It has taken me one year to get to my project from Grissom Boulevard, with a lot of issues in the middle of all that, scrub jays and whatever." She explained a display board depicting Grissom Parkway and a new street maintained by the County at the moment; and stated Ms. Perry's property comes in off Peroutka Lane and abuts her property; and the starred area are lots that are under contract, which they hope to close by the end of the month. Ms. Lawhon advised they could not purchase the south end of Peroutka Lane and could not get quit claim deeds from the owners to her or the County, so they had to use 50 feet of their property; the plat in the package explains how all the easements, roads, and canals were given to the landowners; so they had a hard time coming from the project to Grissom Boulevard. She stated the album has pictures of the project entrance sign, the road, models, and Ms. Perry's property, which abuts two sides of the project, one off Peroutka Lane and the second on the east side of her homesites that are under contract. She stated it will be an upscale community with homes starting at $149,900; the home across the street from Ms. Perry's property will be listed for $154,900; and she doubts that a new homeowner would want to look out and see or pass by grazing horses. She stated worst of all is that AU zoning will allow cows, chickens, and possibly pigs; and once the zoning is changed, it will allow new buyers to pick up the same zoning if Ms. Perry decides to sell her property because her intent is to change the whole five acres. She requested Ms. Perry conform to the area and receive the zoning of SR for the whole five acres.

Steve Lawhon, part owner of Veronica Estates, advised he is a building contractor in the development; and his biggest concerns are AU or AGR zoning next to the upscale houses they are trying to put in there and the community they are trying to develop. He stated his concern is not what Ms. Perry is going to do with her horses, but anybody else coming in there in the future could have cows, pigs, chickens, etc.

Mike Lawhon advised he is building the house directly across the street from Ms. Perry's property; he has a substantial investment even though he is not the developer or contractor; and his concern is things that could take place in the present or future that would have a direct impact on his property value. He stated he was under the impression conformity of the area would be enough to carry on his investment.

Ms. Perry advised she thought the Board was aware of her intentions to give two choices; five months ago it was okay for her to have her horses out there and the Board zoned her property AU; and now it is not okay, even though nobody objected before and the vote was unanimous. She stated she told the P&Z Board she was going to buy Lot 1 to make her property buildable; and now that she has Lot 1, all of a sudden there is a major problem with her horses.

Commissioner Scarborough advised the Board rezoned the back portion of Ms. Perry's property as AU about five months ago; and the people who spoke in opposition said they did not get a notice, but he does not know if that is true or not. He stated Ms. Perry is requesting rezoning of the whole parcel; and there has been discussion of how she could limit the use at the back, which is AU, as the Board did not limit the use as part of dealing with the whole parcel. Ms. Perry stated she is not trying to rezone the whole parcel; she already has AU zoned by the Board five months ago; and she is working on rezoning Lot 1. Commissioner Scarborough stated Ms. Perry has AU and GU and requested rezoning of the whole parcel to AGR. Mr. Enos advised Ms. Perry has GU and AU now; she requested AGR but abandoned that request; and now she would like AU on all of the parcel as her preference, or SR on the front and AU on the back. Commissioner Scarborough inquired if the application was for the whole parcel going to AGR, including the AU portion; with Mr. Enos responding originally that is correct. Commissioner Scarborough stated that is what was filed, and that is why the whole parcel is before the Board. Ms. Perry stated she thought that was all made clear during a meeting.

Chairman Carlson inquired if Ms. Perry withdrew the request for AGR and wants AU on the whole thing or SR; with Ms. Perry responding she does not want SR because she has horses and cannot put them on SR property. Ms. Perry stated she would prefer to have Lot 1 rezoned to AU to match Lots 2 and 3 and ten feet of Lot 4, or she would agree to 150 feet of the front of Lot 1 rezoned as SR and the remainder of Lot 1 and the 10 feet of Lot 4 as AU.

Commissioner Scarborough stated he was told certain things were going to evolve tonight, but it is getting more confusing; it would be beneficial to get additional clarification before proceeding; so he will move to table the item.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to table Item 14 to the August 2, 2001 Board of County Commissioners' meeting. Motion carried and ordered unanimously.

Item 15. (Z0105201) George and Elizabeth Kaya and Garry Kaya's request for change from RU-1-7 to RU-2-15 on 0.6939 acre located on the west side of Ridgewood Avenue between Roosevelt Avenue to the north and Taft Avenue to the south, which was recommended for approval by the P&Z Board.

Commissioner O'Brien inquired if Mr. Kaya resolved the problem with the neighbor; with George Kaya responding yes. Commissioner O'Brien inquired of staff if there are any more problems with the request; with Mr. Enos responding no.

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

Item 16. (Z0105202) Laurel C. Lightowler, Trustee's request for Small Scale Plan Amendment 01S.3 that proposes to change the land use map designation from residential to Mixed Use District on the Future Land Use Map, and change from AU to BU-2 on 3.77± acres located on the southeast corner of Oak Haven Lane and Gray Road, which were recommended for approval by the LPA and P&Z Board with a binding development plan limiting the use to parking of four vehicles only.

Commissioner O'Brien advised the applicant withdrew Item 16.

Item 17. (Z0105203) Edwards Macy-Brenner's East, Inc.'s request for CUP for alcoholic beverages for on-premises consumption in BU-1 zoning classification for Unit 735 only on 6.43 acres located in Palm Cay Shopping Center west of the northwest corner of Citrus Boulevard and North Courtenay Parkway, which was recommended for approval by the P&Z Board.

Jack Kwon advised he owns the New Century Buffet Chinese Restaurant at 735 N. Courtenay Parkway and is seeking approval of a beer and wine license in connection with the restaurant in BU-1 zoning classification. He stated at the last meeting he touched on four or five points of interests and concerns, but did not know if the Board wanted him to reiterate those points.

Commissioner O'Brien stated the restaurant is in Palm Cay Plaza and was next to the Rave Club that has closed its doors; and inquired if the CUP is for the entire mall; with Mr. Enos responding no, it can be limited to Unit 735.

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to approve Item 17, limited to Unit 735 of Palm Cay Plaza. Motion carried and ordered unanimously.

Item 18. Item removed from agenda.

Item 19. Item removed from agenda.

Item 20. (Z0105206) Frank C. (Jr.) and Vivian Towles-Youles and Antonino and Grace Cataldo and Indian Cove Marina, Inc.'s request for change from BU-2 to PUD, retaining existing Use on Review for floating docks on 8.94± acres located on the west side of N. Tropical Trail, east of the Indian River and northwest of Orange Avenue, which was recommended for approval by the P&Z Board.

Attorney Richard Amari, representing Town Realty, Inc., Indian Cove Marina, Inc., Antonino and Grace Cataldo, and Frank and Vivian Youles, advised he has a 2.5-minute video to present of Myrtice Avenue area that gives an overview of the project; and presented the video, which identified the crab shack, Island Point Marina, Christ Universal Church, surrounding area of partial and total urban blight, Myrtice Avenue, the former Island Casino Nightclub, old trailers, the Indian Cove Marina, Palmetto Trailer Park, Babe's, a 7-Eleven Store, and Aladdin Motel. The video showed the Myrtice Avenue area, noting for the year 2000, the Brevard County Sheriff's Office incident reports listed 467 occurrences requiring a report, and that it is a beautiful piece of land that includes a marina and the potential for a spectacular series of condominium homes that can serve as the impetus to the renewal of not only the land on the intercoastal waterway, but a huge chunk of Merritt Island that serves as the western gateway to one of its most important and prominent shopping and entertainment areas. The video also relayed that with the Board's support, the area can go from underused and partially blighted to a positive asset to the community with beautiful condominium homes having spectacular views of the intercoastal waterway, a recreational center, pool and spa area, tennis and basketball courts, other amenities, and a whole new look of the entrance to Merritt Island.

Mr. Amari advised the video does not do enough to describe the character of the neighborhood; most of the Commissioners are aware of the slum and blight that exist there with old dilapidated nonconforming structures that are currently fire and other safety hazards; and the Sheriff's Department responded 467 times to criminal activities on Myrtice Avenue alone. He stated their project will transform the worst neighborhood on Merritt Island to one of the nicest neighborhoods with upscale condominiums, tennis courts, pools, recreation buildings, jogging trails, boat slips, and other amenities; and they will be bringing in sewer which has been a long-time problem that led to the plight of the community. He stated sewer service and other necessary infrastructure will provide the seed for growth and revitalization of the entire area; they will bring in middle to upper income residents who will shop at Merritt Park Plaza; and restaurants and other establishments will be created as a result of this project. Mr. Amari advised the project will complete the circle that began when the Merritt Island Redevelopment Agency (MIRA) started the Merritt Park Place project; it is a win/win situation for everybody; they have zero objections to date, and hopefully will have none today; and with the Board's support, the vision can become a reality. He named representatives from Allen Engineering, Architectural Group, Inc. and Town Realty who were present to answer questions the Board may have.

Doug Robertson, Planning Consultant to MIRA, advised the Agency reviewed the project and recommended unanimously that the Board approve the request as presented and proposed; and it feels the project will accomplish a major goal, which is to eliminate a significant amount of slum and blight in the area. He stated the Board amended the Redevelopment Plan to target the area for a project of this nature, so they hope it will be consistent and compatible with its plan to provide an economic stimulus to help clean up the balance of the area. He noted it will provide a pool of shoppers with disposable income that will help feed Merritt Park Place, which is their emerging town center; and encouraged the Board to support the project.

Mike Minot, representing Merle and Ruth Babcox, advised his clients own the property abutting the subject property for the entire length of the access way on the east, and on the west end of the Babcox property, the east side of the subject property. He stated as a result of his clients' property being zoned BU-2 and having a history of commercial and industrial uses, there was concern when they learned of the PUD application; however, through the willingness of the applicants and his clients, who met many different times, the parties entered into a written stipulated agreement, and asked him to tell the Board of their support for the project.

Sue Cody, property owner to the north of the subject property, advised it is time for changes on Merritt Island in this area; however, she has great concerns because of the waivers being requested as part of the project. She stated they are asking for ten-foot setbacks, which will affect her property; and the buildings will cast a shadow on her property. She stated she has spoken with the developers about her concerns.

Mr. Amari advised they hope to work out a deal with Ms. Cody; it has been their intention to bring her property into the project at which time her concerns would go away; but at this time there is no deal, and unfortunately they are facing a time deadline. He stated the deadline is on the contracts they assembled for the properties; they cannot afford a time delay because the property owners would not allow extensions and hope for nothing better than for the contracts to expire because they feel they have been underpaid for their properties. He stated they will not be able to put the deal back together if the contracts expire; but they hope to meet Ms. Cody's concerns. He stated her property is a viable part of the project; it is also one that exists in the condition of slum and blight; it is an old dilapidated trailer park with abandoned trailers and buildings that are not in conformity with the County Codes, so it begs to come into the project and be redeveloped; and hopefully they will get there.

Commissioners Higgs, Scarborough, Colon and Carlson put on the record that they met with Mr. Amari and his team and spoke to Ms. Cody.

Mr. Amari advised without the written consent of Ms. Cody in the future, they can work it out to meet the setback requirements along her property lines; and if they do not bring her property into the project, they will commit to meet the setback requirements on her property lines.

Commissioner Higgs requested Mr. Amari outline the other setback waivers they are asking for; with Mr. Amari responding the area along Myrtice Avenue, along the IU property that has a metal warehouse building on IU property where they intend to put a six-foot wall landscaped buffer. He stated County staff requested they buffer the project with a wall. Chairman Carlson inquired if they can put up a wall and meet the setback requirements without waivers; with Mr. Amari responding yes.

Commissioner O'Brien advised they need the wall to buffer what is there now; there are dilapidated and run-down old trailers; the entire area is a high-crime area and one of the worst areas on Merritt Island; and he is happy to see the project come, which will change the complexion of that entire area. He stated dead bodies are pulled out of the Aladdin Motel at least once a month and prostitution arrests in that area are high; and it is a seedy area and total embarrassment to the entire community. Commissioner O'Brien stated there has been one objection, which Mr. Amari plans to solve; the project has community support; the Oleander Project is almost directly across the river and to the south of the bridge; and on the south side of the bridge is historic downtown Cocoa. He stated they are now rebuilding historic Merritt Park Place; and this project will revitalize an area that is crumbling, so he will move for approval.

Motion by Commissioner O'Brien, seconded for discussion by Commissioner Colon, to approve Item 20 as recommended by the P&Z Board.

Commissioner Colon advised she spoke to Ms. Cody who was supportive of the project and felt it was good for the community; and she had concerns but felt it was needed in the community.

Commissioner Higgs advised the area can use some redevelopment; however, she cannot find in anything she has been presented by the applicant or in their representations, a compelling demonstration of why they have to have the waivers to do a viable project on the site. She stated the Board saw the applicants' willingness to move the setback with very little pressure; and she does not know why they cannot do the project and meet the Codes and requirements. She stated they have not demonstrated why the Board should give a building height variance for 72 feet over parking and 82 feet over parking, or why they must have a breezeway variance in either Phase I or II. She stated there is a 69% requirement for a variance in Phase II and they are asking to permit only 35%; and there is a 64% requirement in Phase I, and they are asking to have only 40.6%. Commissioner Higgs advised they asked for perimeter setbacks waivers without demonstrating a compelling reason why that has to be done; they asked for additional density in Phases I and II; and while she supported the changes to the PUD Ordinance and the amendments that would allow redevelopment in the area, she cannot support the request before the Board because they have not demonstrated why they must have the variances and waivers in order to do the project. She stated it would be a mistake for the Board to move forward with the project when there seems to be ways it could be a better project without waivers. She stated there are issues of setbacks, height and shading; and there are buildings on various parts of the project that will impact other parcels.

Commissioner Scarborough stated when the Board looks at things, it looks at quality of life or value; if the Viera Company wanted to do something unique and different in the middle of its property, there would be less concern because the only people who will be affected are its potential purchasers of surrounding property; and height does not seem to impact an area adversely, economically, or personally. He stated there are no trailer park people saying it will destroy their values; the buildings will be closer together and some units will not have much light, so they are impacting themselves with their actions and creating a deterioration in value of an adjoining unit. He stated the Board sometimes allows more flexibility in PUD's and DRI's.

Commissioner Higgs stated there is an opportunity to do a superb project rather than a project that does not conform to standards that are important; and the Board said breezeways, building heights, and visual effects are important, yet the applicants are asking for huge variances. She stated an excellent project could be done on the property, which would enhance the value of the property and make them a larger profit if it was done in conformance with the requirements.

Commissioner Higgs stated asking them to comply or minimize the variances is not unreasonable; a better project would come out of the Board working with the applicant to bring the project into conformity and not impact the neighbors; and it would set a real standard for the Merritt Island Redevelopment area, and not be just how much can they put on the land, which is what they are doing. She stated they are putting as much as they can on the property to maximize the income from the project; it can be a better project that can serve as a standard for redevelopment on Merritt Island and for the community; so the Board should not approve the variances as presented.

Commissioner O'Brien called a question on the motion.

Chairman Carlson advised she has a question, and inquired if the item can be approved without the waivers; with Mr. Enos responding yes. Chairman Carlson inquired could the requests for waivers and variances be brought back at a later date if they can be worked out in terms of what Commissioner Higgs said so they are more in conformance with existing Codes and not have to go as far as they have requested; with Mr. Enos responding if the Board approves the item without waivers, it establishes a preliminary development plan with no waivers; if they want to rework the plan and minimize the waivers, then it would be an amendment to the preliminary development plan that has been approved without waivers; and the amendments would have to come back through the public hearing process, so there is a mechanism to do that.

Commissioner Higgs inquired what has to be presented to the Board in order to approve a PUD; with Mr. Enos responding a preliminary development plan is presented as part of the zoning; it is like a BDP but more detailed in nature; the waivers that are requested are part of that; and the Board can approve or not approve them. He stated the density exceeds the 14 units per acre; and the Board has to find that the four situations in Policy 4.1.F.2 of the Future Land Use Element apply; and they deal with the project addressing serious incompatibilities with existing land uses, project adequately buffering from other uses, project being located along a major transportation corridor, and project meeting concurrency requirements of the Comprehensive Plan. Commissioner Higgs inquired if the Board has to determine that all of those are present; with Mr. Enos responding yes for the density issue, but the other waivers do not require that. Commissioner Higgs stated one of the abutting property owners represented that the project is not adequately buffered. Commissioner O'Brien stated they solved that problem. Commissioner Higgs stated the individual represented other concerns such as shadowing and setbacks.

Mr. Amari advised without the waivers there will be no project; they were able to accommodate the setbacks along the north line because that was fairly easy to do; but there is no way the setbacks on the other areas can go further because of the tightness of the buildings. He stated their architect looked at the plan; they did not know until tonight that Ms. Cody had a problem or they would have addressed it earlier; and contrary to Commissioner Higgs' statement, they did not try to pack the site to get the largest return and in fact came in with 185 units instead of 300 units intended to be developed by the prior developer. He stated he has been working for two years to put the contracts together; people are trying to back out of the contracts because they feel they are not getting adequate value out of their properties; and he is convinced he would not be able to bring them back to the table if the contracts fall through. He noted they would go away and the property would sit and look like it is for the next 15 years. Mr. Amari advised the density is not that significant; the Board looked at the Merritt Island Redevelopment area and said in order to make a project happen, 37.5 units are appropriate, yet they are coming in under 21 units, which is not an extremely dense project. He stated it is not just density that affects how a person does a development because the Code brings in a plethora of other things that affect it, such as open space, breezeways, building height, etc. which impact the number of units they can fit on the property; there is no way to go but up with these buildings because of the County's open space requirements; and they cannot do the project without the additional building height. Mr. Amari advised there is a peninsula that sticks out east and west in the river; breezeways are intended to provide visual view of the river; and that is not appropriate for this site, but they designed it with as much breezeway as possible. He stated if they can bring in the Applegate property and amend the PUD in the future, they can probably get more breezeway; they intend to do that; but what they know they had to do was come to the Board with a project they thought could fly. He stated if the Board gives its approval tonight, the developer will know that he has something to work with, would be willing to take the risk from that point on and close on the properties, and work with Ms. Cody and Mr. Applegate to make it a better project. He stated if they do not have that much, it cannot happen; without the waivers the project will not work; and it will fall apart and not come back.

Commissioner Colon advised the Board needs to move forward with the project; MIRA supported it and said it is good for the area; and the Board discussed building heights in the area, so it is not new. She stated the Board knew there would be exceptions; it needs to look at the bigger picture and how complicated it is making it; and it needs to move forward and make it a reality because the Board knew it was going to create exceptions for the redevelopment area. Commissioner Higgs stated she knew the Board was going to have to do things a little different to get a good project there and she supported some changes; however, they can do a better job of conforming to the current Codes.

Motion by Commissioner Higgs, to table Item 20 until May 29, 2001, to allow the applicants to determine if there is anything else they can do to bring the project into closer conformity to the rules. Motion died for lack of a second.

Chairman Carlson called for a vote on the original motion to approve Item 20. Motion carried and ordered; Commissioner Higgs voted nay.

Item 21. (Z0105301) John D. and Myra Ireland Holder's request for change from GU to RR-1 and approval of eight flag lots on 18.58 acres located on the east side of Brabrook Avenue between Mount Pleasant Avenue to the north and Sand Point Road to the south, which was recommended for approval by the P&Z Board.

Attorney Tino Gonzalez, representing Myra Holder, advised Mr. Holder passed away sometime ago, so he does not know how his name got on the application; Myra Holder has owned the property with Mr. Holder in excess of 25 years; and because Ms. Holder is the subject of a guardianship, they are seeking to divide the property consistent with the Comprehensive Plan and Future Land Use Element into 16 one-acre lots to pay for her medical care. He stated Ms. Holder is in a nursing facility that costs approximately $4,000 a month; they have offers from people for one-acre lots; there are multiple one-acre lots around the property; it is rural in nature; and requested approval of the application. He stated the property is high and dry; there are no wetlands on it or environmental concerns; they agreed to have four dedicated lanes so all 16 lots will have access through cross-access agreements to minimize the number of access points; and they did that to accommodate what staff felt would minimize traffic in the area.

Commissioner Higgs inquired what the Subdivision Ordinance says about dividing land into multiple lots; with Assistant County Manager Peggy Busacca responding the Ordinance states if the property is being subdivided into three or more lots, it is a subdivision. Commissioner Higgs inquired why is this application not going through the subdivision procedure; with Ms. Busacca responding it has historically been the practice of Brevard County to allow a subdivision of lots where no street is required to be constructed; and in this case the frontage already exists to allow lots to be subdivided using flag lots. Commissioner Higgs stated the law says if it is more than three it is a subdivision; with Ms. Busacca responding that is the definition in the Code. Commissioner Higgs stated this is being done differently; with Ms. Busacca responding yes. Commissioner Higgs stated that is a problem for her; there was an issue with the Beattys' property; it was five lots over; the Board allowed them to withdraw their application; and they were able to get administrative waiver for AU. She stated Parcels 18 and 26 front Brabrook and matches RR-1 on the other side of the road; however, Parcels 19 and 27 to the rear of the property have a consistent pattern of AU in the area; so she cannot support the request for all RR-1 nor approve flag lots because that is inconsistent with the Code, which requires more than three lots to be a subdivision. She suggested tabling the item so Mr. Gonzalez can work out the issue of the subdivision rather than have two different zoning classifications on the property. She stated her motion would be to approve AU on the eastern two parcels and RR-1 on the western two parcels, but the applicant would have to deal with the issues of a subdivision.

Mr. Gonzalez advised they approached staff in good faith and discussed with them what they would recommend, and went with their recommendation; they did not discuss the Code or subdivision with him; and had they done that, he would have been able to work out the issue. He stated the P&Z Board unanimously approved the application; they looked at the property surrounding Ms. Holder's property; and there are examples of the same thing on a five-acre parcel, but laid out differently. He noted the property next door is doing a similar thing with flag lots; and the reason they did that was to maximize one-acre lots in accordance with the requests from people who want to buy one-acre lots. He stated the property was 20 acres, but when they built the road, they took about 1.5 acres, which caused the property to be 18.5 acres instead of 20 acres. He stated he would be happy to have the item tabled to see if they can work it out rather than have it denied. Commissioner Higgs noted that would be in their best interest because if it is a subdivision, they would not want to have two different zonings.

Mr. Gonzalez advised across the street are multiple one-acre lots in excess of 100 within a couple hundred feet of the subject property; and that is one of the reasons they wanted RR-1, which is consistent with the Comprehensive Plan. Commissioner Higgs stated it is consistent with the Comprehensive Plan to look at other zoning classifications in the area; she does not disagree with RR-1 on the lots that front Brabrook; but she disagrees with the other lots.

Motion by Commissioner Higgs, seconded by Commissioner Colon, to table Item 21 to the August 2, 2001 Board of County Commissioners' meeting. Motion carried and ordered unanimously.

Item 22. (Z0101403) State of Florida Department of Transportation's request for CUP for towers and antennae in AU zoning classification on 0.07± acre located at the northwest portion of the intersection of I-95 and Wickham Road in the FDOT right-of-way.

Item 22 was withdrawn by the applicant.

SPECIAL PUBLIC HEARING, RE: PLANNING AND ZONING BOARD
RECOMMENDATIONS OF MAY 10, 2001

Chairman Carlson called for the public hearing to consider the recommendations of the Planning and Zoning (P&Z) Board, made at its special public hearing on May 10, 2001, as follows:

Item 1. (SPEC0105) Timothy F. McWilliams and Roseann DiPrima McWilliams' request for CUP for horses and a barn in an SEU zoning classification on five acres located on the west side of South Tropical Trail, south of Tequesta Drive, which was recommended for approval by the P&Z Board.

Timothy McWilliams requested a CUP for horses and one goat; and stated they meet all the requirements.

Commissioner O'Brien advised the Board approved one goat for Mr. McWilliams' neighbor to the south; Mr. McWilliams wants a goat and two horses; but he has to build a residence first before he can build a barn. He stated the recommendation, if approved should be for a maximum of three horses and one goat; and suggested Mr. McWilliams not come back and request more goats. He inquired if there will be sufficient fencing so the horses cannot get out because there were complaints about other horses in the area that were in other people's backyards. Mr. McWilliams advised they will put up electric fences so they will not be able to jump it.

Motion by Commissioner O'Brien, seconded by Commissioner Colon, to approve Item 1 as recommended by the North Merritt Island Dependent Special District Board. Motion carried and ordered unanimously.

Item 2. (SPEC01052) Dr. Charles W. Church, Paul D. Lewis, Robert G. Milliken, and Duane A. Watson's request for amendment to the BDP on 7.79± acres located on the south side of Audubon Road, north side of Merritt Avenue, and east of Merritt Avenue/Hampton Way intersection, which was recommended for approval by the P&Z Board, pending recording of the BDP.

Attorney Robert Beals advised the Board approved amendments to the site plan previously and requested two concessions; one was an uplands buffer and the other was no impact to wetlands; Bussen-Mayer tried every way possible to accomplish the project within those parameters and could not; and they worked with staff diligently to find something acceptable to staff and revised the BDP in several significant ways. He stated as presently proposed, the project will impact 2/10ths of one acre of wetlands; they offered 27 acres adjacent to the property for mitigation; pictures of the mitigation property were provided to the Board; and he has a survey for Ms. Bentley. Mr. Beals advised the BDP includes a title insurance policy be given; the notes, which were incorporated in the BDP create the 27 acres as a conservation easement; and it gives the County an opportunity to take title to the property at no cost to the County or its designee, should it wish another public body to have the title. He stated the notes to the preliminary site plan indicate what is being impacted, which is a less than pristine wetlands area; it is littered with concrete, rubble, asphalt, and trash; the uplands buffer will be created out of the existing property, and could exceed the amount of uplands that was requested in the original application and put in the original BDP. He stated the requirement is 15-foot and 25-foot buffers; when measured against the buffers being created, the total square footage is greater than what was requested and put in the original BDP; and the notes will give the total square footage of the buffers.

Mary Sphar, representing Sierra Club Turtle Coast Group, advised the project is down the street from the Ulumae Wildlife Sanctuary; it was approved with conditions there be no impact to wetlands, 25-foot native vegetative buffer on the impounded area, and 15-foot buffer along the areas to the south and west; but now the applicant plans minimal impact to the wetlands. She stated the BDP states, "Developer/owner shall create a native vegetative buffer on the impounded area and a buffer along areas in the south and west all in accordance with the Code of Ordinances of Brevard County, Florida, Section 62-3694, sufficient to maintain the function of any contiguous wetlands"; and inquired if the developer intrudes into the wetland, how could he create a buffer to maintain the function of the wetland. She stated he would destroy part of the wetlands so there would be nothing left to buffer; and inquired if he intends to put in more fill to create a buffer. Ms. Sphar advised the Board needs to address whether or not the project satisfies Comprehensive Plan Policy 5.2.F.1, which says, "Residential land uses shall be limited to not more than one dwelling per five acres unless strict application of this Policy renders a legally established parcel as of September 9, 1988, which is less than five acres, unbuildable." She stated the project satisfies that requirement; however, she is not sure of the exact equation used and how the substitution of values would go for the project. She stated the Sierra Club asked about the equation in its May 7, 2001 letter to County staff; it also asked ten other questions on the application of the wetlands policy; and requested the Board encourage staff to provide a response to the letter since the questions seem to apply to many rezoning issues. She stated the Board needs to determine if the project meets the one unit per five acres requirement. She advised Policy 5.2.F.1 states, "Residential property, which includes wetlands areas, shall be subdivided in such a way that buildable areas are included in each lot. Subdivided lots shall contain sufficient uplands for the intended use and for any buffering necessary to maintain the function of the wetlands, and shall be compatible with adjacent uses." She requested staff comment on that portion of the Policy as it relates to the project under consideration. Ms. Sphar advised one of the questions in their May 7, 2001 letter asks, "What part of Conservation Element Policy 5.2.F.1 apply to multifamily residential projects with site plans submitted on or after January 14, 2000?" She stated the project and amended BDP must be judged as to whether or not they satisfy the requirements of the Comprehensive Plan; it is commendable that the developer offered the adjacent unbuildable parcel as mitigation; however, the question is not whether that is a good tradeoff for wetlands impact, but does the project satisfy the requirements of Comprehensive Plan Policy 5.2.F.1.

Amy Mosher advised the Board made a motion with no net loss to wetlands and vegetative 25-foot and 15-foot buffers for this development, and she hopes it will stay with that motion. She stated there is an existing high-quality vegetative buffer; there are some Brazilian pepper trees in it, but it is mangrove and has all kinds of saltwater aquatic flowering things growing there; and it is in the wetlands they are proposing to impact. She stated the leather fern will get wiped out; and suggested the applicant try and situate the buildings so there is open space other than just the buffers because the buffers need to be heavily vegetated to allow visual distraction for the wildlife that use the wetlands. She noted there are woodstorks, brown pelicans, and all kinds of herons and egrets; and not to have any buffer with high-rise buildings creating noise and car doors shutting, may cause the wildlife to move out of the area. Ms. Mosher stated the 27-acre donation is a good idea, but that land is not developable anyway; Mr. Watson wrote that the wetland would not be developed; so there was never an intention for the wetland to be developed. She presented a photograph of the buffer to the Board; stated there are aspects of the initial site plan that are better than the proposed plan; there was a courtyard setting in the middle of the buildings that allowed some gathering; and now it is all parking lot. She stated she realizes they are trying to situate parking under the buildings, but maybe the Board can allow them to go up an additional floor to put two levels of parking to reduce the impervious surface. She stated it is not an attractive design; and she is concerned that the buffer will be used by people walking their dogs and it would not be a visual buffer for the wildlife and the function of the wetlands. Ms. Mosher advised Comprehensive Plan Policy 5.2.F.7 states, "Applying or shoring pesticides and herbicides should be prohibited unless such application is required for protection of public health"; that would be mosquito control; and she is concerned there may be St. Augustine grasses planted and fertilizers and pesticides used that may get into the wetlands, so the Board should stick with the initial motion. She stated she would hate to see the developer not be able to build, but it looks like a lot of impervious surface; and maybe they can go up another floor and provide more open space rather than a big parking lot.

Commissioner O'Brien inquired if Ms. Mosher ever lived in a condominium or apartment; with Ms. Mosher responding she lived in an apartment while in college. Commissioner O'Brien stated he lives in a condominium; it is quieter than his old neighborhood; so the statement about noise is not appropriate. He stated unless a person experiences it and understands what happens in condominium developments, especially upscale developments, they would not know that noise is not a problem and they are extremely quiet. Ms. Mosher stated Merritt Avenue has gotten so busy. Commissioner O'Brien stated Merritt Avenue was designed to take the pressure off SR 520; Fortenberry Road is listed as the top 4 and is only two lanes, but should be four lanes; and if the County could buy the property and make it a huge park, it may take some of the pressure off; but Merritt Avenue is going to get busier as North Merritt Island grows. He stated he received letters about destruction of wetlands across the street for B.J.'s; that never occurred; and in fact, those wetlands were improved 227%. He stated those wetlands had pepper trees, crud, etc.; and now they are cleaned up and have the right foliage.

Mr. Beals advised this is a downzoning from BU-1, which could create 11,000 trips a day on Merritt Avenue; the homeowners in Hampton Homes approved the request as desirable and highly preferable to a commercial development; and Debbie Coles walked the property and could respond to comments. He stated as to the legality of building a condominium there, staff is not concerned about the project, at least not that he has been advised.

Natural Resources Supervisor Debbie Coles advised she walked the site, which is highly disturbed from the previous activity that was there; and there are wetlands to the east that are in good shape but have a fringe of exotic invasive plants. She stated the proposed plan would not be impacting the more desirable species, mangrove fringe, or leather fern area as previously mentioned; however, they would have to stake it out in the field to know exactly where the impacts will occur.

Commissioner O'Brien stated staff said the ferns would not be impacted; Ms. Sphar said the wetlands are being destroyed; and people should talk to the professional staff who do environmental work for Brevard County before making statements to help them ensure their statements are factual.

Ms. Coles advised Ms. Sphar inquired about Policy 5.2.F.1; staff calculates that by assigning a density to the acreage of wetlands and the acreage of uplands; and if there is an acreage of impact to the wetlands, they do a one unit per five-acre calculation that is assigned to the wetland area that will be impacted. She stated the upland area density is whatever the zoning classification allows. She stated if they do not impact the wetlands, they are permitted to transfer densities for residential uses from the wetlands at the zoning density permitted on adjacent upland areas. She noted this project is definitely within the density parameters of assigning acreage of impacts to the wetlands and densities to the uplands and wetlands.

Commissioner O'Brien stated Mr. Beals said it was a down zoning; with Mr. Enos responding it is a down zoning from BU-1 to multifamily. Commissioner O'Brien inquired if that also reduces the density; with Mr. Enos responding it is a slight reduction in density from the maximum that could be achieved under the zoning classification. Commissioner O'Brien inquired how much; with Mr. Enos responding they can have 102 units outside the wetland, and proposes 95 units.

Commissioner O'Brien inquired if the request is to reduce the buffer on the east side from 25 feet to 15 feet because all the other buffers are 15 feet; with Mr. Beals responding the preliminary site plan will show how the buffers have been created and describes the types of plants that will be put there, which is subject to Ms. Coles suggesting other types of plants. He stated they discussed not using plants that require pesticides; that is outlined in the notes; and they have done everything they could and exceeded the average buffer requirements. Mr. Beals stated the St. Johns River Water Management District permits computation of upland buffer so they zigzag in and out; it is wider in some places and narrow in others; but they will all be at least 15 feet. Commissioner O'Brien inquired if the request is to reduce the size of the buffer to the east; with Mr. Beals responding it is to reduce the overall buffer to an average of what would have existed under the prior restriction. Commissioner O'Brien inquired if Mr. Beals is saying some places may be 12 feet and others 20 feet; with Mr. Beals responding yes.

Commissioner Higgs advised the project is consistent with Policy 5.2.F.1; they are impacting 0.2 acre of wetland and setting aside 27 plus or minus acres; and inquired what waivers would be necessary in order not to impact the wetlands. She stated some of the Commissioners were okay with waivers tonight; and inquired what would the Board have to waive to keep the development from impacting the wetland. Commissioner O'Brien stated 0.2 acre is one-fifth of one acre, which is half the size of the Commission Room. Ms. Coles advised not having the applicant's engineer here to tell the Board whether it is doable or not, she thinks they could do stemwalls and forego an upland buffer for those areas that have wetland impacts associated with them where the building will come right up to the wetland where they were going to create an upland buffer. Commissioner Higgs stated that would not be a waiver, but moving of a building. Ms. Coles inquired if Commissioner Higgs is referring to parking, etc.; with Commissioner Higgs responding yes. Ms. Coles advised the Land Development Regulations allow for 30% reduction in parking, and the Landscaping Code allows for a lesser amount of buffering of about 10%. Commissioner Higgs inquired if the Board has to approve that; with Ms. Coles responding it can be done administratively if there are areas that are important to preserve on the site. Commissioner Higgs stated, given the mitigation, Comprehensive Plan consistency, the project should go forward, but recommended the applicant agree to work with staff to ret rid of the impacts on wetlands. She stated those suggestions could come back to the Board if it takes a waiver; and inquired if Mr. Beals is willing to agree, on behalf of the applicants, to look at the impacts with staff and come up with ways to eliminate them. She stated she is not saying they have to do it, but asking that they work with their engineer and County staff to come up with ways not to impact the wetlands; and if it requires waivers, the Board would have an opportunity to do that. She stated she would vote for it tonight if Mr. Beals can make a verbal commitment before they finalize their plans, to meet with staff and see if they can move things around on the site. Mr. Beals stated he concurs 100% and would give it their best shot.

Motion by Commissioner O'Brien, seconded by Commissioner Higgs, to approve Item 2, amended binding development plan (BDP), subject to applicants working with staff to come up with ways to reduce or eliminate the impacts on wetlands, and return to the Board if waivers are required.

Ms. Coles advised the BDP needs a date change; all the plans say March 30; and staff wants to make sure Item 10 is the latest plan, which is dated May 17, 2001.

Motion by Commissioner O'Brien, seconded by Commissioner Higgs, to amend the motion to include May 17, 2001 as the date for Item 10 of the BDP. Chairman Carlson called for a vote on the motion as amended. Motion carried and ordered unanimously.

Chairman Carlson instructed staff to follow up on Ms. Sphar's request on Policy 5.2.F.1 and provide a report to the Commissioners in writing before they return from vacation.

The meeting recessed at 9:40 p.m., and reconvened at 9:55 p.m.

PUBLIC HEARING, RE: NORTH MERRITT ISLAND DEPENDENT SPECIAL DISTRICT
BOARD'S RECOMMENDATIONS OF MAY 10, 2001

Chairman Carlson called for the public hearing to consider the recommendations of the North Merritt Island Dependent Special District Board, made at its public hearing on May 10, 2001, as follows:

Item 1. (NMI10501) Bud and Mary Carol Crisafulli's request for CUP for towers and antennas in AU zoning classification and removal of existing CUP for temporary security trailer on property located southwest of E. Crisafulli Road, which was recommended for denial by the Special District Board.

Item 1 was tabled to August 2, 2001 Board of County Commissioners' meeting earlier in the meeting.

Item 2. (NMI10502) Colin Steer's request for change from AU to RR-1 on 120 acres located on the north side of Chase Hammock Road, east of Winding Way, which was recommended for approval by the P&Z Board with a BDP for maximum of 62 units and minimum 2,000 square-foot houses.

John Campbell, representing the applicant, who is the developer of the project with Greene International, advised the property is a 120-acre grove that was formerly the Parrish property; it was purchased about six months ago; Mr. Greene and Mr. Steer are proposing to develop a subdivision of 62 lots; and requested a change from AU to RR-1. He stated they met with the North Merritt Island Homeowners Association and various members, and worked out an understanding with them; they went to the Special District Board and received unanimous approval; and the project will be beneficial in several ways. He stated it is a spent orange grove; the trees are about 60 years old and it is no longer feasible to harvest oranges in that grove; and they have made various concessions to the Special District Board and North Merritt Island Homeowners Association that they will limit the subdivision to no more than 62 lots and minimum square footage of the homes at no less than 2,000 square feet of living area. Mr. Campbell advised he met with the two objectors before the meeting; they waived their objections with the understanding that the dry area of the lots will be a minimum of one acre; and Mr. Greene has agreed to that concession. He stated they talked to staff about drainage problems on East Crisafulli Road; and they are prepared to allow a portion of the lakefront property on the east side to be used as a conveyance for water from about three-fourths of the way of East Crisafulli Road down to Chase Hammock Road for the ultimate discharge plan. He stated there are a couple of wetlands on the property; their environmentalist met with the St. Johns River Water Management District; and there is a small wetland on the southwest corner of the property and a larger area on the northwest corner, both of which are very poor and full of Brazilian pepper trees, Australian pines, construction rubble, and old grove machinery and parts. Mr. Campbell advised there is one pristine wetland area on the east side of the property that the St. Johns River Water Management District looked at; they have come to some minor negotiations to mitigate some of the problems; and they propose to enlarge and enhance the natural oak hammock in the middle of the cul-de-sac into an additional wetland area that will increase the wetlands by two times the factor. He stated the site is environmentally safe; it is 96% orange groves; and requested the Board consider granting approval of RR-1.

Chairman Carlson advised David Henry, representing North Merritt Island Homeowners Association, and Robert Kinser submitted speaker cards; with Mr. Campbell responding they left and waived their objections with the proviso the lots are one acre in size.

Commissioner O'Brien advised the Board is concerned about school overcrowding; this is not the only project facing the Board Countywide; last month the Board had to tell another applicant no because of the overcrowding at Lewis Carroll Elementary which has a capacity of 725 and its current enrollment is 835 and projected to be 850 by the end of the year; so it is already overcrowded. He stated the enrollment at Merritt Island High School is 300 over its present capacity; the Board is trying to find a way to let people enjoy their property rights, but until the Board finds solutions to the school overcrowding and infrastructure needs, he would prefer to table the item until September when the Board should solve the problem because it would be irresponsible for him to approve it tonight.

Mr. Campbell stated it is a huge piece of land at 120 acres; with Commissioner O'Brien responding he knows that and it is only for 62 units; but another deal came adjacent to Lewis Carroll Elementary and wanted 116 units, and other projects behind Villa de Palmas are zoned for multifamily; and if Coy Clark pulls his building permits the Board will have a mess on Merritt Island. He stated the Board is responsible to the entire community; he feels badly having to table it until the Board has solutions that may affect the development adversely or positively; but he is not sure how that is going to turn out. Mr. Campbell advised if they stay with the present AU zoning, they can get 45 lots and not have to ask for the Board's approval; they have a potential of getting 108 sites out of the property; but the developer did not want to get that many in the market. He stated the project minimizes the use of the property and is a very good plan.

Commissioner O'Brien stated there are serious problems now; the Board has to take a closer look at everything that is occurring with roads, traffic, schools, etc. that are being severely impacted; and the public at large is saying stop the ballooning growth. He stated property owners and developers have property rights, but in good conscience the Board has to have time to address the problems and look at the good projects to let them go forward and others it may want to down zone further. He advised the School Board has come to the table with the Board of County Commissioners with plans to expand certain schools and the target dates; Florida is about 43rd in the Nation in education, and Brevard County is not at the bottom of the State, but it has to look at building new schools. Commissioner O'Brien stated Lewis Carroll Elementary has four or five outside classrooms; Merritt Island High School has eight or ten; and the School Board is planning to tear down those classrooms to expand the High School. He stated there will be problems in educating the children who will live in this development; he would rather see all the children be educated and have a good quality of life; but more children are leaving Brevard County for other States. Mr. Campbell advised both his children graduated from high school in Brevard County and are well educated; and he compliments the School Board for that. He stated they checked on Chase Hammock Road and Courtenay Parkway and were told by staff that both roads will support the development; and his concern is will the Board be able to solve the problem by September if the answer is they have to build more schools. Commissioner O'Brien stated with legal staff advising the Board on what it can and cannot do, he wants to know what options are available; however, the law favors the developer. Mr. Campbell stated it is a quality plan and would save the County having to condemn a mile of canal right-of-way to get water from East Crisafulli Road; the developers are willing to give the County a conveyance across the property; so if they are not able to develop it, by solving one problem, the Board may be losing an opportunity to solve another. Commissioner O'Brien stated the Board will be happy to hear the counter arguments in more detail in September. Mr. Campbell stated he was not prepared for this argument; and they did all their homework. Commissioner O'Brien stated the Board is faced with two new problems this year; one is floodplains in Canaveral Groves and other parts of the County and the other is school overcrowding; for years the Board allowed them to put mobile homes and trailers in areas that will flood every ten years; and they have to say they cannot do it any more because it is not responsible. He stated every school on Merritt Island is overcrowded; and the Board needs to look at that situation. Mr. Campbell stated the property is not in a floodplain; with Commissioner O'Brien responding he is not concerned about floodplains with this item; and it is the school overcrowding that concerns him. Mr. Campbell inquired what can they do; with Commissioner O'Brien responding stay in touch with Mr. Enos. Mr. Campbell stated if they need a new elementary or junior high school, the project cannot be done; with Commissioner O'Brien suggesting Mr. Campbell and his neighbors speak strongly to the School Board to help it solve those problems. Commissioner O'Brien stated if the Board sees light at the end of the tunnel, it can approve the project; however, there is no light there right now. Mr. Campbell stated the project is not marketed for young families, as it will be $75,000 lots and $350,000 homes. Commissioner O'Brien stated the Board will try to have a viable plan for the future growth of Brevard County that makes sense and keeps up with infrastructure rather than to be continuously overwhelmed by growth.

Martin Greene, representing the applicant, advised they come before the Board with 122 acres, which they have planned as an aesthetically and environmentally perfect development; they could have come for 105 units, but came for 62 units; and they were not expecting the school-overcrowding problem. He stated he heard the Board approve a development in Merritt Island for high-rise condominiums over density, yet he comes with only 50% of the density and the Board wants to shelve it until September. Mr. Greene advised there is a major surface water problem on East Crisafulli Road; staff has advised them that what they are doing is going to be a major assistance to that surface water problem; and 62 lots as opposed to 45 is minimal impact on the educational system on Merritt Island. He stated time goes on with another gap until September; it is very critical to them not being able to go forward with the development; they are trying to produce low density high quality housing so that in the future there will not be 105 homes on the property; and he is disappointed that the thought of an extra 15 lots over the current density will effect a four-month delay. He stated the surface water problem is not going away; it could be more expensive for the County later on when it has to require a ditch; and perhaps it could think again to approve the project for the small amount of impact it is going to have on the educational system. He reiterated it is 45 lots to 62 lots and not 45 lots to 102 lots.

Motion by Commissioner O'Brien, seconded by Commissioner Higgs, to table Item 2 until September 6, 2001 Board of County Commissioners' meeting. Motion carried and ordered unanimously.

Item 3. Administrative Rezoning of Parcels 255, 289, 290, 291, 292, and 293 in Section 11, Township 24S., Range 36E. owned by Charles S. (III) and Suzanne K. Vogt, Gareth A. and Fanny Carmen Matthews, Glen and Tammy L. Dollar, Henry U. and Ada E. Parrish, Michael L. and Clinita S. Lynch, and Coy A. and Linda A. Koontz, from PIP to AU, which was recommended for approval by the Special District Board.

Motion by Commissioner O'Brien, seconded by Commissioner Higgs, to approve Item 3 as recommended by the North Merritt Island Dependent Special District Board. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING CHAPTER 62 TO REMOVE THE
CONDITIONAL USE PERMIT FOR ADDITIONAL BUILDING HEIGHT

Chairman Carlson called for the final public hearing to consider an ordinance amending Chapter 62, Land Development Regulations, to remove the conditional use permit for additional building height.

Commissioner O'Brien advised the Local Planning Agency (LPA) recommended approval of the ordinance with exception of the solar access standard; and requested clarification.

Zoning Official Rick Enos advised the solar access standard was proposed by staff to set the setbacks at 125% of the height of the building; and that number was derived by the length of the shadow at noon time on the shortest day of the year. He stated people were concerned about shadows being on their properties; and that provision will ensure that tall buildings will not cast shadows on adjoining properties. Mr. Enos advised the Code is written in such a way that there will be opportunity for limited tall buildings in some areas such as downtown Merritt Island or in PUD's; but with this standard, the shadow will stay on the property. He noted the LPA had mixed feelings about that and had a split decision with five for the idea and five against; but that was the only concern raised. Commissioner O'Brien inquired if the solar access standard is incorporated in the proposed ordinance; with Mr. Enos responding yes.

Motion by Commissioner Colon, seconded by Commissioner O'Brien, to adopt an Ordinance amending Chapter 62, Land Development Regulations, Code of Ordinances of Brevard County, Florida; amending Sections 62-1343(3), 62-1343(4)b.7., 62-1344(3), 62-1371(3), 62-1371(8), 62-1372(3), 62-1372(8), 62-1373(3), 62-1373(7), 62-1446(e), 62-1481(3), 62-1481(7), 62-1482(3), 62-1482(7), 62-1483(3), 62-1483(7), 62-1511(3), 62-1511(8), 62-1512(3), 62-1512(8), 62-1541(3), 62-1541(6), 62-1542(3), 62-1542(7), 62-1543(3), 62-1543(7), 62-1544(3), 62-1544(8), 62-1572(3), and 62-1542(7), by removing the conditional use permit for additional building height from the single-family attached residential (RA-2-4, RA-2-6, RA-2-8, and RA-2-10), residential professional (RP), low-density multiple-family residential (RU-2-4, RU-2-6, and RU-2-8), medium-density multiple-family residential (RU-2-10, RU-2-12, and RU-2-15), high-density multiple-family residential (RU-2-30), planned unit development (PUD), restricted neighborhood retail commercial (BU-1-A), general retail commercial (BU-1), retail, warehousing and wholesale commercial (BU-2), general tourist commercial (TU-1), transient tourist commercial (TU-2), planned business park (PBP), planned industrial park (PIP), light industrial (IU), heavy industrial (IU-1), and government managed lands (GML) zoning classifications respectively; amending Sections 62-1406(10), 62-1334.5(9), and 62-1571(9) by adding maximum height of structures to the recreational vehicle park (RVP), agricultural rural residential (ARR), and environmental areas (EA) zoning classifications respectively; amending Section 62-1902 by removing conditions relating to the conditional use permit for additional building height; adding Section 62-2101.5 by providing more restrictive standards for additional building height in certain classifications; amending Section 62-2105 by relocating standards applying to breezeway requirements; providing for conflicting provisions; providing for severability; providing for area encompassed; providing an effective date; and providing for inclusion in the Brevard County Code of Ordinances.

Commissioner Scarborough advised he previously discussed the problem of having a commercial or industrial use adversely affecting property values; someone who has commercial property does not want to have a concrete plant behind it; and he would like to break out and further define PIP as it is substantially different than industrial. He stated PIP is quiet and has a campus like atmosphere; he would not want to have a heavy industrial type structure right next to it; the Board needs to protect the investments of the business community as much as it protects the residential community; and suggested staff break out the PIP segment like it has commercial and industrial, and further define it. Mr. Enos inquired if Commissioner Scarborough wants to afford the same protection against PIP as it does against commercial. Commissioner Scarborough responded one end of Grissom Parkway has an industrial park with certain types of activities; the other end is Cidco Park with concrete trucks, etc.; they are different from each other in use; and the Board needs to recognize that. He requested the maker of the motion accept that direction to staff as part of the motion.

Commissioner Colon accepted Commissioner Scarborough's recommendation to further define PIP as part of the motion.

Chairman Carlson called for a second to the motion. Commissioner Scarborough seconded the motion. Chairman Carlson called for a vote on the motion as amended. Motion carried and ordered unanimously.

Upon motion and vote, the meeting adjourned at 10:18 p.m.

ATTEST: ________________________________
SUSAN CARLSON, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA
___________________
SCOTT ELLIS, CLERK

(S E A L)