The Board of County Commissioners of Brevard County, Florida, met in regular session on February 26, 1996, at 5:30 p.m. in the Government Center Commission Chambers, 2725 St. Johns Street, Viera, Florida. Present were: Chairman Mark Cook, Commissioners Truman Scarborough, Nancy Higgs, and Scott Ellis, Assistant County Manager Stephen Peffer, and Assistant County Attorney Eden Bentley. Absent was: Commissioner Randy O?Brien.

Commissioner Ellis led the assembly in the Pledge of Allegiance.

PERMISSION TO SCHEDULE EXECUTIVE SESSION, RE: APPEAL OF CLAIM BY GEORGE CORNETT

Assistant County Manager Stephen Peffer advised Risk Manager Jerry Jacobs is requesting the Board schedule an executive session to discuss an appeal of a claim by George Cornett; and suggested it consider holding such session on March 8, 1996 at 11:00 a.m. as there is a Solid Waste Workshop scheduled for that day.

The Board approved scheduling an Executive Session for March 8, 1996 at 11:00 a.m. to discuss an appeal of a claim by George Cornett.

APPOINTMENT, RE: LANDSCAPING TASK FORCE

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to appoint Paul Lowry, 1824 Poinsetta Boulevard, Melbourne, Florida 32901 to the Landscaping Task Force replacing Kris Davis, with term of appointment expiring December 31, 1996. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ZONING RECOMMENDATIONS OF FEBRUARY 5, 1996

Chairman Cook called for the public hearing to consider the recommendations of the Planning and Zoning (P&Z) Board, made at its public hearing on February 5, 1996, as follows:

Item 2. Brenda V. Townsend?s request for change from AU to RR-1 on one acre located on the south side of Lakemont Road, east of Lakehill Road, which was approved by the P&Z Board.

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

Item 3. Antonetta D. Jones, Trustee?s request for change from GU to BU-1 on 3.1 acres located on the northeast corner of Pineda Causeway and Wickham Road, which was approved by the P&Z Board.

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

Item 4. Promenade Development Group, Ltd., a Florida Limited Partnership?s request for CUP for alcoholic beverages on-premise consumption in BU-1 zone on 9.445 acres located on the west side of Wickham Road, north of Pinehurst, and also having frontage on the north side of Pinehurst, west of Wickham Road, which was approved by the P&Z Board with the stipulation that the CUP be limited to a restaurant with 50 seats.

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

Item 6. Robert A. Baugher, Trustee, and Don Bacon Construction, Inc., a Florida Corporation?s request for change from GU and RU-1-11 to RU-1-13, and from GU, RU-1-11 and RU-2-15 to RU-1-7 on 87.13? acres located on the south side of Furman Road, west of North Banana River Drive, which was approved by the P&Z Board with a binding development plan as voluntarily agreed to by the applicant, 1,250 square feet minimum house size in the RU-1-7, 2,250 square feet minimum house size in the RU-1-13, and donation of any part of the environmentally-sensitive area to the appropriate agency to be maintained as a conservation or preservation area.

Zoning Official Rick Enos stated regarding the 2,250 square feet on the RU-1-13, he has since learned from the applicant that was not a commitment and was simply information provided to the P&Z Board; therefore, it should be struck from the recommendation.

Commissioner Higgs inquired is there another figure that should be inserted; with Mr. Enos responding not that he is aware of. Mr. Enos stated the applicant has made no commitment to him about a different figure; and it would be the minimum classification which is 1,300 square feet.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to approve Item 6 as recommended by the P&Z Board, including striking the 2,250 square feet on the RU-1-13 zoning and making it the minimum classification of 1,300 square feet. Motion carried and ordered unanimously.

Item 7. School Board of Brevard County, Florida?s request for change from AU to GML on 3.01 acres located on the east side of Harry T. Moore Avenue, north of Cuyler Street, which was approved by the P&Z Board.

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

Item 8. Parkway Plaza East Corporation, a Florida Corporation?s request for Small Scale Plan Amendment and change from GU to BU-2 on 2.75 acres located on the east side of Grissom Parkway, south of Canaveral Groves Boulevard, which was approved by the P&Z Board and LPA approving the Small Scale Plan Amendment.

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

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to adopt Ordinance amending Article III, Chapter 62, of the Brevard County Code, entitled ?The 1988 Comprehensive Plan?, setting forth the Second Small Scale Plan Amendment of 1996, 96S.1, to the Future Land Use Map of the Comprehensive Plan; amending Section 62-501 entitled ?Contents of the Plan?; specifically amending Future Land Use Map Series; and provisions which require amendment to maintain internal consistency with these Amendments; providing legal status; providing a severability clause; and providing an effective date. Motion carried and ordered unanimously.

Planner II Todd Peetz stated there is also a request for reimbursement of the Small Scale Plan Amendment fees of $530; the applicants came before the Board in September, 1995 for a Small Scale Plan Amendment; at that time, the Board turned the request down and asked for further information on Mixed Use Districts in the area and Grissom Parkway; since then, it has formulated the 96A Grissom Parkway Amendments; and these parcels the applicant is requesting for the Mixed Use District, as well as the zoning request, are part of a larger Mixed Use District that is coming before the Board to be adopted in August, 1996.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to approve reimbursement of the Small Scale Plan Amendment fees of $530. Motion carried and ordered; Commissioner Higgs voted nay.

Item 10. The First Christian Church of Cocoa, Florida, Inc., a Non-profit Corporation?s request for CUP for church in GU on 10.33 acres located on the east side of Grissom Parkway, south of Canaveral Groves Boulevard, which was approved by the P&Z Board.

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

Item 11. David C. and Cynthia Ramage?s request for change from AU to RR-1 on 1.22 acres located on the west side of Tomato Farm Road, north of Tiger Lane, which was approved by the P&Z Board.

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

PUBLIC HEARING, RE: ZONING RECOMMENDATION OF JANUARY 2, 1996 - ITEM 22

Chairman Cook called for the public hearing to consider the recommendation of the Planning and Zoning (P&Z) Board, made at its public hearing on January 2, 1996, and tabled by the Board of County Commissioners on January 29, 1996, as follows:

Item 22. Swiss Lakes Development Corporation, a Florida Corporation?s request for change from GU to BU-2 with binding development plan on 3.55? acres and change from GU and RU-1-7 to AU with binding development plan on 26.0? acres located on the west side of U.S. Highway No. 1, north of Tkacs Drive, which was approved by the P&Z Board with a binding development plan.

Commissioner Scarborough inquired has the County received the binding development plan; with Zoning Official Rick Enos responding it received such plan today and the Board has a copy of it in the package staff provided.

Attorney Leonard Spielvogel, representing the applicant, advised the binding development plan was developed by the client; should they agree conceptually, they will revise it and bring it more into conformity with what the Board is used to seeing; but the idea is to agree as to what is going to go in the plan; and what is before the Board is an outline.

Chairman Cook inquired given all the time this item was delayed, why is the Board receiving it today; with Attorney Spielvogel responding he was hired today and he did not write the plan. Mr. Spielvogel stated they bring to the Board a change in their request; and part of the properties have been withdrawn from their request.

Mr. Enos advised staff received word today from the applicant and Attorney Spielvogel that the south 199.98 feet is being withdrawn from the application; that is part of the application that fronts on Tkacs Road behind the existing BU-2 on the zoning map; and this does not affect the frontage, but only that part of the request to AU behind the existing BU-2 frontage is being withdrawn.

Mr. Spielvogel stated the binding development plan addresses what sections of the frontage on U.S. 1 are intended to be placed in berm and landscape, as opposed to those areas that will receive a different treatment. Chairman Cook stated he has a problem acting on something that the Board just received, and discussing it when people in the audience have no idea what has taken place; and he is tempted to table it. Mr. Spielvogel stated the applicant has no problem delaying the item until the next meeting. Chairman Cook stated the Board cannot act on something it just received tonight; it is not fair to anyone; he would like to give the people an opportunity to express themselves tonight rather than having to come back to another meeting; and the applicant will have an opportunity to respond. Attorney Spielvogel stated if the item is continued to a date certain, it will give him an opportunity to refine the development plan and have it in at an earlier date. Chairman Cook stated it may be of benefit to hear the comments tonight; and perhaps the applicant can respond to them between now and the next meeting. Mr. Spielvogel stated they do not have a problem with that.

Vista Boyland, 6222 Halyard Court, Rockledge, stated she is opposed to the proposed change in zoning because primarily history repeats itself; and this is the second time she has been here on an issue such as this. She noted she finds it totally inappropriate that there should be any consideration whatsoever for allowing heavy equipment to cross the highway; and requested the Board reconsider this issue when it comes before it again and vote in opposition to it. She commented on the rezoning and extended development of Florida Memorial Gardens in which the buffer zone was not maintained, and problems with a nursery development in the past.

Chairman Cook stated the property is zoned GU; and it will have to be zoned at some time to something.

Lee Boyland, 6222 Halyard Court, Rockledge, stated his property is approximately one mile north of the proposed development on the east side of the road; he is not completely sure what the applicant wants to do; and he does not find a heavy industrial-type operation to be suitable for this area as it is prime land that is suitable for high-value homes. He noted his concern is if the applicant is going to drain the lakes, there will be a large amount of fill dirt required to fill the pits; the cost of such an operation is going to be extensive; and the pits are ideal candidates for a demolition landfill. He noted when looking at it from that point of view, the cost has been eliminated and created a profit-making operation which is not included in anything he has been told; and inquired what are the lakes going to be filled with. He stated before any disturbance of the land is made, there should be a complete environmental survey done; and at this time, he request the Board deny the zoning request.

Larry Runyon, 6230 Capstan Court, Rockledge, stated he is opposed to the request; the area is predominantly upscale homes on the east side of the highway; the community is not opposed to development of the area on the west side of Route 1; and there are environmental concerns relative to the potential impacts on the canals, and concerns with noise and traffic on Route 1. He stated it is his understanding that a nursery operation is planned; this type of business operation does not enhance the community; it does not contribute positively to the community; it potentially detracts from the property values in the area; and it could impact the tax revenues from those properties for the County. He noted BU-2 is incompatible with the neighborhood; and unless there is some overwhelming reason of need to rezone this property for business utilization of the area that is not in the interest of the homeowners and County, he would recommend disapproval of the request.

Thad Altman, 361 Kilmarnock Place, Melbourne, stated he has reviewed the binding development agreement; it is nothing more than a 20-foot buffer in front of the BU-1 zoning and buffering the rest of the property to the minimum standards of Brevard County; it does not come close to remedying the concerns of putting BU-1 and expanding it along U.S. 1 in an area that is predominately residential; there is already BU-1 zoning there; and he does not understand why someone would want to increase that unless they wanted to bring some intense use there. He noted there were comments made at the last meeting that the landowner never intended to dedicate the lakes that were dug to the County for storing the County?s runoff; that is private land and the County does not have any right to store its runoff; but, the landowner has committed to doing that; and he has a letter which he will submit to the Board. He stated the applicant is probably not aware of the commitments made by the landowners in the past; they have made numerous commitments; many times, such commitments were not followed through; technically, this same landowner is still the applicant as they own the land and the zoning is going to run with the land; and what is relevant is what has taken place on the property, the commitments, the impact, and what will take place on the property in the future. Mr. Altman submitted the letter to the Board; and stated Paragraph 1 includes that Melbourne Sand Company will install a control structure culvert system to the U.S. Highway No. 1 southern drainage outfall and open up the eastern lake system to receive County storm runoff from Waelti Road; and stated these are the very same lakes that the applicant now is saying he wants to be able to start filling. He noted when you fill these lakes, the ability to absorb water from the entire Suntree area that drains into this area is diminished; the landowner is now being sued for environmental pollution; and what drains from this land drains into these lakes. Mr. Altman stated he is extremely concerned with any effort to alter the lake system and to do anything but manage that in a way that will lessen the impacts to the lagoon system.

Mark Minor, 6285 Bertram Drive, Rockledge, stated he provided a petition at the last meeting signed by the majority of homeowners opposing the request; and provided another copy to the Board. He noted at the previous meeting, the residents discussed the environmental impacts, property values, aesthetics, and pollution of the canals. He noted if all the applicant wants is to establish a plant nursery, he can do it under BU-1; and inquired why does he want BU-2 zoning. He stated the homeowners of Indian River Isles are opposed to the zoning request; it does not want this built; and requested the Board deny the request tonight instead of continuing it to the next meeting.

Clay Bernchon, 6345 Anchor Lane, Rockledge, stated the applicant is trying to do something that he is not currently permitted to do; the Board should restrict any further comments, suggestions or recommendations for rezoning because the applicant is not sincere in his efforts to put in anything except big buildings; and there are currently heavy trucks parked on the property. He requested the Board deny the rezoning request.

John Brewer, 6315 Anchor Lane, Rockledge, stated the primary concern should be to maintain the conditions that will not endanger a natural resource that is not only vital to the environmental well-being, but also to the economic well-being; the deterioration of the Indian River Lagoon is well known and has been well documented; and he is a concerned taxpayer who does not wish to see the Board effect a zoning change which could lead to possible catastrophic environmental consequences in the future.

John LeMeux, 100 Brantley Hall Lane, Longwood, stated he and his partner own 12 ? acres 100 feet south of the subject property; he has not seen the binding development plan submitted today; but based on conversations he had with the applicant, the plan now eliminates any requests for BU-2 zoning; and all he is asking for is BU-1 which is very compatible. He noted the Rockledge Nursery, which is approximately 2,000 feet to the north of the subject property, is very compatible with that particular development; the nursery-type retail business would be compatible with the particular area; and assuming his comments are correct based on his conversations with the applicant which is in concurrence with his plan he submitted today, he and his partner recommend approval of the applicant?s landscaping business along U.S. 1.

Commissioner Scarborough expressed concern that the binding development plan still has not been received and the County only has an outline. Chairman Cook stated it should be the policy of the Board that there should be a time certain that binding developments plans have to be in prior to the public hearing; it is not fair to the residents; the Board received the outline at the last minute; and people need to have a chance to review it also.

Discussion ensued on whether to continue the item to the next meeting or dispose of the issue tonight.

Attorney Spielvogel stated he would like to have the opportunity to come back with a better crafted binding development agreement that addresses the concerns from the Board and public; there was no intention to drag this out; this is a very difficult piece of property; the buyer would address these problems; and they would ask for the opportunity to come before the Board and tell it more about how they are going to do it. He requested the Board continue the item.

Motion by Commissioner Higgs, to continue Item 22 to the next meeting. Motion died for lack of a second. Chairman Cook stated his preference is to proceed and make a decision on the item. Commissioner Higgs expressed concern with the proper procedures in addressing the zoning issue.

Commissioner Scarborough inquired what do the phases include. Attorney Spielvogel responded the phases relate to the stages of development; what the client proposes first to do is develop the piece that will house his nursery; and that is Phase 1 where the most elaborate berming and landscaping will occur.

Chairman Cook stated the motion to table did not get a second; therefore, the item will proceed and Attorney Spielvogel can make his presentation to the Board.

Attorney Spielvogel showed the Board Phase I of the project; stated the binding development agreement is not as detailed as it should be; and this will be the most extensive part of the landscaping and berming. He noted the berm will be four feet in height; it will be irrigated; and the trees will be sizeable that will be placed on the property. He stated his client anticipates spending close to $30,000 on this section of the berm alone; and what he is requesting is the BU-1 to a depth of 100 feet, with a frontage length of 686 feet, which is a deviation from what was requested originally. He noted originally, the request was for all BU-2; behind the BU-1, there would be BU-2 for a depth of 120 feet to allow the storage of materials used in connection with the nursery operation; and behind that to the property line would be AU. Attorney Spielvogel stated moving to the north, which is the retention area, if it is a matter of concern, he would ask it be removed from their request; they will come back at a later date; it will remain GU until such time as they have something to present; the engineering is not an inexpensive thing to bring to the County; and it is talking about selling that to the County. He noted his client is receptive to expanding on the agreement as long as he is in a position to use this piece of property for nursery purposes; he knows of no request for heavy industrial use; that is either IU or IU-1; and it is not before the Board. He stated the property in question is across from waterfront; U.S. 1 is a substantial right-of-way; there is a whole change in the ambience between what is on the east side of U.S. 1 and the west side; his client is blessed with the Florida East Coast Railroad; and there is a limitation, from a practical viewpoint, on what his client can do on the west side of U.S. 1. He stated the separation of U.S. 1 from these two parcels is a substantial change in buffers between the properties; if there are pollutants in the retention area, he will assure the County that his client is not going to buy this property unless he has satisfied himself that the property is not contaminated; and to buy contaminated property is to invite disaster, because as an owner, you become responsible for the cleanup. Attorney Spielvogel stated in so far as the deterioration of the Indian River Lagoon, his client is as concerned about that as the people who live there; if this property is contributing to pollution, it is doing it now; and once his client makes a nursery out of it, it will be a better piece of property.

Commissioner Scarborough stated he has a map showing Parcels 1, 2 and 3; on the plan it refers to the phases; he is looking at parcels, phases and areas; and inquired is there a relationship between the three and what can the people expect. Attorney Spielvogel responded he is looking at a map of the survey prepared by Allen Surveying and Mapping Company dated August 17, 1995 which depicts the property before the Board; it shows a piece of property having a frontage of 350.16 feet; that relates to Area 1 on the draft of the binding development plan agreement; and that would be Phase 1. He stated Phase 2 is the frontage that lies to the south of Phase 1 or Area 1; and Area 3 or Phase 2 lies to the north of Area 1. Commissioner Scarborough noted Phases 2 and 3 do not apply to Parcels 2 and 3 as Parcel 3 is an L-shaped parcel. Attorney Spielvogel advised the Phases run east and west, from the front property line back to the rear line as opposed to these parcels; and the areas are intended to run straight back. Commissioner Scarborough stated at this particular point, he does not find enough information in the record to base an opinion on in favor; and he will make a motion to deny the item.

Motion by Commissioner Scarborough, seconded by Commissioner Ellis, to overrule the P&Z Board and deny Item 22.

Chairman Cook stated he will support the motion for the reasons stated by Commissioner Scarborough; the plan the Board received today and the limited time he has had to review it is very inadequate; and he has a concern about it. Commissioner Ellis stated it does not address the problems. Chairman Cook noted the zoning request would not be good for the community; there is not enough information to base a judgment on; the area is transitional in nature; the County has to be very careful that whatever it zones the property to is compatible with a residential use which is across the street.

Commissioner Higgs stated compatibility with the surrounding area is a real issue. Chairman Cook stated the County has been very fair to Mr. Spielvogel?s client; the last time this issue came up, the Board delayed it for 30 days; there has been ample opportunity to address the issues of major concern; and such issues have not been addressed.

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

The meeting recessed at 7:02 p.m.

The meeting reconvened at 7:15 p.m.

STIPULATED ORDER OF TAKING AND FINAL JUDGMENT FOR BREVARD COUNTY V. JOHN M. BOVIS ET AL/MALABAR ROAD PHASE I/CASE PRIME DEVELOPMENT, INC. (KNIGHTS INN)

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to approve the terms of the Stipulated Order of Taking and Final Judgment for Brevard County v. John M. Bovis et al/Malabar Road Phase I/Case Prime Development, Inc. (Knights Inn); and authorize the Chairman to sign appropriate documents contained in the Stipulation. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ZONING RECOMMENDATION OF JANUARY 2, 1996 - ITEM 26

Chairman Cook called for the public hearing to consider the recommendation of the Planning and Zoning (P&Z) Board, made at its public hearing on January 2, 1996, and tabled by the Board of County Commissioners on January 29, 1996, as follows:

Item 26. Stanley A. Dowiat?s request for CUP for alcoholic beverages on-premise consumption in IU zone on one acre located north of Stan Drive and north of Ellis Road, which was approved by the P&Z Board.

Attorney Mike Riemenschneider, 516 N. Harbor City Boulevard, Melbourne, representing the applicant, stated his client is seeking a CUP to sell alcohol at a restaurant he intends to develop on his property; and explained petitioner?s Exhibit #3. He advised this has gone through staff and the P&Z Board; both have approved the request; and presented to the Board the staff review, the resume of appraiser Bob Litenburg and resume of certified planner Roy Cowell.

Roy Cowell, Director of Planning for SSA, 8680 N. Atlantic Avenue, Cape Canaveral, stated he was asked on behalf of the applicant to review the Ordinances pertinent to the application, both in terms of the permitted use of a restaurant which is already there, and the conditional use for the sale of alcoholic beverages. He noted he was also asked to review the documentation prepared previously for P&Z and the staff report; he found total agreement with their recommendation; and he also reviewed the Ordinances and finds that in accordance with Section 6219-01, under Standards for Review, that the request is compatible with the general purposes and intent of the Chapter of the Ordinance and will not result in any detrimental impact on the surrounding property. He stated applicant?s Exhibit #5 indicates the zoning for the subject property in the yellow area; almost the entire surrounding area is an industrial use; the map represents an area of approximately four square miles; and there is a significant amount of industrial activity taking place, including manufacturing and wholesale and retail sales. Mr. Cowell noted there are approximately 14 facilities that provide food service within this four square-mile area; all but two of them are at the far corners of Sarno and Wickham Road, and Wickham Road and U.S. 192; and there is one facility in an industrial park within this area. He stated it seems very reasonable to provide a place for food service for the numerous people who work in the area.

Bob Litenburg, Appraiser, advised he was asked by Mr. Riemenschneider to review the property and render an opinion as to whether or not it would have a detrimental effect on the surrounding properties; he reviewed the industrial properties in the area; and it is his opinion that a restaurant with a CUP for liquor sales in this area would not have any harmful effects whatsoever on surrounding property values.

Glen Warner, 320 Stan Drive, Melbourne, stated he has a business on Stan Drive; the property in question is located in an area where you cannot see any buildings and only woods all around you; there have been problems in the past with people gathering back there, but it has been cleared up; and the thing that raises flags to them is normally when you look for a restaurant, you are looking for a location and lots of high traffic area; and inquired why would the applicant want to locate a restaurant back here and is it planning to later on apply for an adult entertainment license. He noted the proposed request is a great concern to the people, including their property values.

Commissioner Ellis stated it is not unusual to find a sandwich-type restaurant in a business park; and requested Mr. Enos address how would a piece of property go from being a restaurant with a CUP for alcohol to become an adult entertainment.

Zoning Official Rick Enos stated there is no relationship between the two processes; the adult entertainment process is one of going through an administrative review to make sure that the request meets all the standards of the adult entertainment regulations; one of those standards is that the parcel must be at least 1,500 feet from any residentially zoned property, church, school or any other adult entertainment facility; it is possible that this site would meet that requirement; and if that is the case, then adult entertainment could be approved on that parcel today. He noted the CUP for the alcoholic beverages is independent of that; CUP?s are approved by the Board in a public hearing according to the standards for CUP?s for alcoholic beverages; and if the Board were to approve a CUP for alcoholic beverages with no further restrictions, it would be possible if the parcel qualifies for the adult entertainment and had a CUP, and to the extent it is permissible in the adult entertainment regulations, then the facility could have both.

Commissioner Ellis stated when talking about further restrictions, the County could tie the CUP to a restaurant use; with Mr. Enos responding affirmatively. Commissioner Ellis inquired if the use changed with the property, would the CUP have to come back to the Board; with Mr. Enos responding the CUP and the limitations stay with the land. Commissioner Ellis noted if the use changed from a restaurant to adult entertainment, the CUP would not be effective and the applicant would have to come back and apply for a new CUP; with Mr. Enos responding yes, unless it was an adult entertainment restaurant.

Mel Wilt, 320 Stan Drive, Melbourne, stated the applicant checked with Romeo Lavaris about an adult entertainment establishment; and requested the Board protect the people and do what it would do if this was located in its neighborhood.

Tim Moore, 2508 Reed Avenue, Melbourne, stated he owns a building on Stan Drive; and inquired why the applicant wants to put a restaurant in this remote location, and later on, will the people be dealing with the restaurant or a massage parlor.

Jimmy Karp, 991 Penelope Avenue, N.E., Palm Bay, stated he owns a commercial building at 485 Stan Drive; and expressed concern that the industrial park only has one road in and one road out, and they have had more than four break-in attempts at his building and Mr. Moore?s building. He noted he does not object to a restaurant, but objects to a bar with traffic at all hours of the night; and there is not much lighting in the neighborhood.

Lisa Luthy, 485-A Stan Drive, Melbourne, stated she does not oppose a restaurant and is not trying to keep development down in the area; she met with the applicant on two occasions; all she knows is they will predominantly be doing a delivery service of food; and inquired why do they need the CUP for alcohol. She noted the applicant has been very vague with the property owners in the area; she purchased her property because it is in an industrial park; the last thing that needs to be done is to mix alcohol with this type of thing; approving the request would open up a can of worms; and expressed concern with the adult entertainment aspect as well. She stated if the Board has to grant the request, the property owners in the area have a list of things they would like it to consider; and presented such list to the Board.

Attorney Riemenschneider stated the restaurant is a permitted use; as part of that use, the applicant wishes to serve alcohol; he is not here representing anyone to get anything concerning an adult entertainment license; and he is here simply on the CUP to sell alcohol. He noted whether it is a wise business decision or not is not the issue; the issue is whether the applicant is entitled to the CUP; the property values would not be hurt; the request is compatible with the surrounding neighborhood; and requested the Board approve the application.

Commissioner Ellis stated all of Mr. Riemenschneider?s witnesses spoke in terms of a restaurant, and not any other business at the location, including a bar; with Attorney Riemenschneider responding that is correct. Mr. Riemenschneider stated a lot of the issues could be resolved during the site plan process; but he is not at liberty to restrict his client?s property.

Commissioner Scarborough inquired when the County has expert testimony and the other side does not bring any experts, is it failing its procedure not affording an opportunity for other people in the audience to cross-examine experts.

Assistant County Attorney Eden Bentley responded there are cities and counties that are handling it that way; other cities are presenting expert testimony of their own or their staff is questioning expert witnesses; and there is a whole host of options available.

Commissioner Scarborough stated there were recently two court opinions; he feels extremely uncomfortable; one side is the applicant represented by an attorney with expert witnesses; the other side there is nothing; therefore, there is a void; and requested the item be tabled to afford the other side an opportunity to present experts and cross-examine the experts at the next meeting.

Chairman Cook explained the recent court rulings; stated almost every item under zoning is in the presence of a court reporter from the applicant; the recent decisions have impacted greatly how the Board renders a decision and what it bases the decision upon; and it has to make sure it follows the procedures to the letter.

Commissioner Ellis stated one thing the County needs to make sure is how it ties a CUP for a restaurant use, and if the use changes from the restaurant that the CUP is revoked.

Chairman Cook inquired can the Board tie the use of the CUP to a specific activity and have it as a condition; with Attorney Bentley responding affirmatively. Ms. Bentley stated the Board can put a condition on the CUP that it is for restaurant purposes; if it is concerned that the sale of alcoholic beverages and the context of purely a bar would be detrimental impact to the surrounding area, it would need to make that finding; and it needs to look at the conditions in the Code and tie its restrictions to those criteria.

Commissioner Ellis stated the County needs to collect evidence to place the restrictions; with Ms. Bentley responding yes. Attorney Bentley advised on CUP?s, the Board can impose conditions because of the detrimental impacts it sees. Commissioner Ellis inquired what if the applicant accepted the conditions; with Ms. Bentley responding that would eliminate any objections they could raise and should eliminate the likelihood of an appeal on that particular issue. Attorney Riemenschneider stated he is not going to voluntarily commit to that and he does not have that authority at this point.

Commissioner Ellis stated the Board needs to table the item; it has to prepare its case on why it is more suitable to be tied to the restaurant; if it outright denies the item tonight, it will be back here again; and the County needs to collect its evidence on how it can put that restriction on the CUP. Ms. Bentley stated it would be advisable to have evidence showing why the restriction is needed.

Commissioner Higgs stated staff needs to be directed to provide information to the Board regarding the appropriateness of alcohol dispensing facilities in an industrial park. Chairman Cook stated perhaps Traffic Engineering can give additional information on safety issues.

Commissioner Ellis stated he does not have any problem with the restaurant use or serving beer at the restaurant; however, the County needs to look at what is the suitability of granting a CUP to a more intense use of the property.

Motion by Commissioner Ellis, seconded by Commissioner Higgs, to table Item 26 to the March 28, 1996 Board of County Commissioners? Meeting. Motion carried and ordered unanimously.

Item 1. First Service of Brevard, L.C., a Florida Limited Liability Company?s request for CUP for additional building height to 87 feet in RU-2-15 zone on 1.93 acres located on the east side of S.R. A1A, lying directly opposite and between Franklyn Avenue and Grosse Pointe, which was approved by the P&Z Board.

Ed Fleis, 1090 A1A, Satellite Beach, representing owner of the property, provided information to the Board. He stated the request is for additional building height of 42 feet; they have applied in accordance with Section 62-1902; the project is located east of A1A, 3/10ths of one mile north of S.R. 192; and it is immediately north of the Villager which is a 13-story building. He gave comparables of other buildings in the area. He stated the total area of the site is 1.93 acres; the density allowed is 29 units; and what is proposed on this project is 29 units. Mr. Fleis stated the structural height for RU-2-15, the threshold is 45 feet above parking; and that is when it is abutting RU-2-15 zoning. He noted the proposal is consistent with the Future Land Use designation; it is consistent with the maximum allowable density which is 30 units per acre; it is zoned RU-2-15; they are proposing to develop it at 15 units per acre; and the proposal would maintain acceptable levels of service.

Irving Lacy, 877 N. A1A #901, Indialantic, stated the residents understand that the Board represents the citizens of this area; Building Codes and related matters are very important because they are established carefully and voted on by the Board; and the people who move into the area and build there should recognize the Codes have been established for the benefit of the residents of the area. He noted the Board has the responsibility to observe and follow the Codes that have been established, and represent the desires of the people in the area.

Cornelia Dickens, 877 N. A1A, Indialantic, stated she considers Indialantic a very beautiful area of Florida which needs to be preserved; it is a village relatively unspoiled to this point; and should the Building Code be broken, the County would be doing a great disservice to Indialantic. She requested the Board deny the request.

Albert King, 877 N. A1A #803, Indialantic, stated First Service of Brevard purchased the land in January, 1995; it should have looked at the Building Codes and restrictions on such property; and the applicant knew what he was buying into. He noted to allow the building to go twice the Code height or Code restrictions does not make sense; it is too much; he is opposed to the request; and urged the Board to vote against the item.

Bonnie S. Lizer, 877 N. Highway A1A, #1101, Indialantic, stated at the February 5, 1996 P&Z Board Meeting, one of the residents handed such Board a petition with 60 plus signatures opposing the request; she helped obtain the signatures; and requested the Board deny the request.

Joy Dickens, 877 N. A1A Apt. 905, Indialantic, stated there is a great interest of the public all along the County line between the dunes and A1A to protect that area; there is an encroachment of people from other areas who have targeted Brevard County for their own profit; the effectiveness of the Building Code has been very well demonstrated; and the interest of individuals in conserving the area is very strong. She urged the Board to consider this item carefully.

The meeting recessed at 8:30 p.m.

The meeting reconvened at 8:43 p.m.

Chairman Cook stated Attorney Frank Griffith represents the applicant on Item 9, Todd B. and Sally L. Jaffe; and he is requesting such Item be tabled to the next meeting due to lateness of the hour and a lot of the witnesses having to leave.

Motion by Commissioner Ellis, seconded by Commissioner Higgs, to continue Item 9 to the next meeting. Motion did not carry. Commissioners Ellis and Higgs voted aye, Commissioners Scarborough and Cook voted nay.

Chairman Cook stated the Board will hear Item 9 tonight; and will now continue with Item 1.

Robert Lizer, 877 N. Highway A1A, #1101, Indialantic, stated he and his wife purchased their property as they love Brevard?s beaches and the view; they asked about the adjacent vacant lot and were told that anything built there could not be forward of the Brevard County Setback Line and no structure could be built over 45 feet in height; their building was built before restrictions were put in force; and they believed their property values were protected by these restrictions. He stated the Board does not have the proper legal basis to grant the variances; and requested it deny the applicant?s request.

Edward O?Keefe, 877 N. A1A, Indialantic, stated much of what he prepared to say has been said already; the people who bought at the Villager had a dream and wanted to spend the rest of their lives retired, looking at the ocean and sand; and now a builder comes along and wants to turn that dream into a nightmare. He noted the applicant knew at the time he bought the property that these restrictions were in force; and requested the Board vote no on these types of variances.

Roy Carlson, 877 N. A1A #606, Indialantic, stated he objects to the CUP request; if it is granted, it will open up the whole southern section for developers; and the area will be like Fort Lauderdale.

Chairman Cook stated George Wilson, 877 N. A1A, Indialantic and Paul Redfield, 877 N. A1A #902, Indialantic, had to leave, but they are both in opposition to the request.

Richard Normyle, 251 Avenida Central, Indialantic, stated it is not in Brevard?s best interest to approve this request; it is time to stop what is going on; he has worked very hard to live on the beach; and he does not want it taken away.

Eleanore Salopek, 877 Miramar, Indialantic, stated she also lives at the Villager; she is concerned about Brevard County and Florida; if the Board approves the request, it will set a precedent and the area will look like Fort Lauderdale; she does not want to see it happen; and any variance to the Coastal Setback Line should not be granted to anyone.

Mary Warshowsky, 877 N. Highway A1A, Indialantic, requested the Board deny the request; stated the tourists come to Brevard County for the beaches; and they are not going to be interested in them with the tall buildings being built.

Florence Weber, 228 Chalet Avenue, Indialantic, stated when the County has an Ordinance on the books saying 45 feet height, it should mean something; to have someone ask for an exception to it, there should be a very good reason for it; if the CUP is approved, it will open up Pandora?s Box; and requested the Board deny the request.

George Mattick, 111 Franklyn Avenue, Indialantic, stated he has a petition signed by approximately 175 individuals opposing the request; and he previously provided copies to each Commissioner.

Mike Daniel, 2140 N. Shannon Avenue, Indialantic, stated this is not consistent with the other buildings around it; it is the Board?s responsibility to reflect the opinions of the public; and requested it deny the request.

Lori Kruger, 220 Avenida Del Sol, Indialantic, stated zoning regulations, rules and laws were put in place for a purpose; and she does not understand how any developer or anyone can come in and ask for that to be overruled. She noted if the Board grants this extra height, it is setting a precedent; and requested the Board deny the CUP.

Albert Klair, 877 N. A1A #705, Indialantic, expressed appreciation to the Board for the job it is doing; stated those speakers preceding him have done an excellent job; and he opposes the request.

Kirk Aguero, 220 Avenida Del Sol, Indialantic, stated he concurs with the prior speakers in opposition to the request; and requested the Board vote in opposition to the CUP.

Thad Altman, 361 Kilmarnock Place, Melbourne, stated he was on the Board when it wrote this Ordinance; it was done to protect one of Brevard County?s most precious resources, its beach environment; and the Ordinance was designed to protect what is left. He requested the Board take the strict interpretation of this Ordinance and protect what Brevard County has left.

Margaret Broussard, 3660 N. Riverside Drive, Indialantic, expressed her opposition to the request; stated it would reduce property values of the neighbors; it would further damage the profile of Indialantic and the adjoining County beachside; and it would establish a bad precedent. She stated it further endangers the endangered sea turtles; this smaller footprint does not help much, it is all paved on both sides; and the access is already there. She inquired whose property rights count the most, the developer or the vast majority of the residents.

Loretta Mills, 951 N. Highway A1A, Indialantic, stated her property is directly across the street from Franklyn Avenue; she is the closest neighbor to the north; this type of development reminds her of the Sears Tower in Chicago or a development in New York; it is putting a tiny tall building on a postage stamp of a lot; and requested the Board deny the CUP.

Dan Repik, 431 Oak Ridge Drive, Indialantic, stated when looking further south of U.S. 192 past the Villager, the next high-rise of that comparable height is past Melbourne Beach; that whole area is four stories at the most; further south, there are only two or three high-rises; and to give the impression that this is an area full of high-rises is ludicrous. He expressed his opposition to the applicant?s request.

Carole Pope, 715 Rockledge Drive, Rockledge, stated she is also an oceanfront property owner; her property is also zoned 30 units an acre; she is not asking the applicant to go by any regulations that she would not want to go by herself; but she is strongly opposed to this; and the County does not need these high-rise buildings. She noted the County needs to respect Indialantic and what it has done; they fought Jim Nance, the developer, to the Supreme Court of the State of Florida and won; they stand behind what they believe in; and the County should stand behind them for what they want for quality of life. She stated that is the message that Brevard County is trying to send to elected officials; and if people want these high density high-rise developments, they need to go to Daytona.

Mr. Fleis stated the applicant is not asking to change any of the laws or rules on the books; they are going by the RU-2-15 Zoning Ordinance and through the CUP process which is also spelled out; and they are not talking about breaking any Building Codes. He noted the site is irregular in shape; the developer can build 29 units on the site; it is a matter of whether they are built up or on a wider portion of the property; and this is not a question of density.

Jim Peeples, Attorney representing the developer, stated this is not a rezoning request or a variance; it is a request for a CUP; the CUP was approved by the P&Z Board 6:2; and this is not a breaking of the Building Code. He noted most laws that are passed and ordinances are always political compromises; some people may not like them now, but it is still the law; that law encourages breezeway and open space in the visual corridor by allowing developers additional height; and if the law is not what is in favor now, then it should be changed so that property owners can rely on what is in the Code Book.

Commissioner Higgs stated she received a letter today from the President of Indian River Audubon Society; such letter was sent by Dr. Blaire Weatherington, Ph.D, Marine Research Associate with the Florida Marine Institute, DEP; his letter was to the Dade County Commission in regard to a high-rise development proposed for the beachfront area south of Golden Beach; and Dr. Weatherington talked about the problems of high-rises and lighting on resources, including sea turtle nesting.

Commissioner Ellis stated the only problem he has seen is the beach access issue; and the survey part has to be resolved.

Chairman Cook stated the case has not been compelling to him for the additional height; when the property was purchased in January, 1995, the applicant knew the restrictions; CUP?s are not a guarantee; it should not be the County?s duty to increase the profits of a particular developer; and he cannot support the extension.

Commissioner Ellis stated he met with Mr. King and a group from the Villager; his secretary transcribed the entire meeting from tape; and that is part of the record.

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

The meeting recessed at 9:40 p.m.

The meeting reconvened at 9:54 p.m.

PUBLIC HEARING, RE: REQUEST BY FIRST SERVICE OF BREVARD, L.C., RE: VARIANCE TO BREVARD COUNTY COASTAL SETBACK LINE

Chairman Cook called for the public hearing to consider request by First Service of Brevard, L.C. for variance to the Brevard County Coastal Setback Line.

Edward Fleis, 1090 Highway A1A, Suite 200, Satellite Beach, representing the owner of the property, stated this specific request is for a 22-foot variance from the Brevard County Coastal Setback Line; and provided drawings to the Board for its review. He stated Ordinance No. 85-17 specifically provides for allowing a variance if a building site has experienced less than 25 feet of erosion since 1972; from 1972 to 1986, there was an accretion of ?-foot per year; and from 1987 to 1996, he has reference to a memorandum prepared by Emmett Foster, Bureau of Coastal Data Acquisition, to Neil Rogers, Bureau of Coastal Engineering and Regulation, that indicates conservatively using a number of one-foot per year. He noted this is a very stable part of the beach in that most of the submerged shoreline is rock outcroppings; but based on this, there would have been an accretion of seven feet and a loss of eight feet, leaving a net erosion of minus one-foot since 1972; this would allow for a variance of up to 24 feet; and the specific request is for 22 feet.

Richard Normyle, 251 Avenida Central, Indialantic, stated to change what has already been set, thought about, and designed for someone?s convenience or monetary gain does not seem right at this time; and perhaps the applicants should re-evaluate what they want to do with their property.

Albert King, 877 N. A1A #803, Indialantic, stated the residents oppose the 22-foot setback that the developer has requested; and he cannot understand why the County would change its rules again to allow someone to build beyond something that previous engineering studies indicated what should be done.

Cornelia Dickens, 877 N. A1A, Indialantic, stated this is a wrong decision to change the law and to change the beach line; and concurred with Albert King?s comments.

Robert Lizer, 877 N. Highway A1A #1101, Indialantic, expressed his opposition to granting the variance to the Brevard County Coastal Setback Line.

Joy Dickens 877 N. A1A Apt. 905, Indialantic, stated Albert King has made a very fine case and she concurs with his comments; and requested the Board deny the variance.

Eleonore Salopek, 877 Miramar, Indialantic, stated the residents lost much of the dune due to the hurricane on August 3, 1996; she cannot believe the figures that were given; they installed three rows of snow fences imported from New England; they planted the dunes; and lost two rows of the snow fences. She noted the erosion is much worse than the figures that were stated.

Mary Warshowsky, 877 N. Highway A1A #1005, Indialantic, stated it is not all right to breach the County Construction Line because everyone knows better now; and requested the Board not let exceptions become the rule for Brevard County South Beaches. She noted the developer needs to design a building that fits this lot and is moved away from the County Construction Setback Line and the dunes.

Thad Altman, 361 Kilmarnock Place, Melbourne, stated he wrote a letter to the Board which it should have received copies of; the request for the variance is extreme; and a 12 to 15-foot variance is more realistic.

Carole Pope, 715 Rockledge Drive, Rockledge, expressed her opposition to the variance request by First Service of Brevard, L.C.; and urged the Board to deny the variance. She stated everyone is in this together regarding insurance money with FEMA; approval of the variance will cause a domino effect; and there are reasons for the control lines.

Margaret Broussard, 3660 N. Riverside Drive, Indialantic, stated global warming is now an established fact; it is already causing the melting of the polar ice; the Ross ice shelf is breaking up for the first time in history; the sea level is rising at an ever accelerating rate which means that erosion will accelerate; and some projections place the beach to be where A1A is now by the year 2050. She inquired where will all the beach condominiums be then, in the ocean; stated that is perhaps why the State Coastal Construction Line is A1A now; and she wants to concentrate on what is going to happen.

Mr. Fleis addressed the State Coastal Construction Line and insurance issues which were mentioned by individuals.

Motion by Commissioner Ellis, seconded by Commissioner Scarborough, to deny request by First Service of Brevard, L.C., a Florida Limited Liability Company, to grant a variance of 22 feet to the Brevard County Coastal Setback Line as allowed in Section 8 of Ordinance No. 85-17 or Chapter 62, Article XII, Section 62-4209, entitled Variances, of the Brevard County Code.

Chairman Cook stated he does not find the case compelling, and will support the motion.

Commissioner Higgs stated the criteria set forth in the Land Development Regulations, 62-4208, Subsection C, states that structures located near the dunes deprive the shifting frontal of dune of the equilibrium necessary for the beach dune system to function in its capacity as the first line of defense from the ocean forces. She noted in the document submitted by the applicant, they point to the data provided by Olson Associates on accretion and erosion, and the erosion rate of one-foot per year between 1987 and 1995; the document submitted by Emmit Foster states, ?It is recommended at this time that an estimate of negative one-foot per year be used in the R-168 to R-219 area?; and also presented as Exhibit B in the historical shoreline analysis, the figures show between monuments 120 and 121, between 1948 and 1972 a negative two feet of erosion.

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

Item 5. Eugene R. Lomando and Anthony Lopes? request for CUP for alcoholic beverages on-premise consumption in BU-1 zone on 1.9 acres located on the west side of U.S. 1, south of Garretts Road, which was approved by the P&Z Board, with stipulation that the CUP be limited to a private club.

George Ritchie, 1305 S.W. Hyacinth Circle, Barefoot Bay, stated he is a member of the Orioles, a Trustee of the Barefoot Bay Recreation District, and a member of the Micco Homeowners Association; the Fraternal Order of Orioles is a national fraternal and charitable organization; they believe charity begins at home and most of its charitable work is done in the immediate area where the club has its services and where the members come from; and it is for members only and is not open to the public. He requested the Board?s approval of the CUP.

E. M. Cunningham, 5756 Lindsay Road, Micco, provided a package of information and photographs to the Board for its review. He stated he is the Chairman of the Zoning and Density Committee for the Micco Homeowners Association, and he represents that organization this evening. He noted the Association is not against the presence of the Fraternal Order of the Orioles, but welcomes them as an integral part of the community; they are not asking for a total denial of the CUP; but they are requesting a tabling or an extension of the issue until compliance with existing Statutes and Ordinances is assured; and there is concern of neighbors to the immediate north and south that activities of the Fraternal Order of the Orioles will negatively interfere with their normal lifestyle and there may exist on the property, conditions that would affect the health and welfare of the Micco Community as a whole. He noted certain of these conditions may not be known to the Fraternal Order of the Orioles as they may not have been divulged by the owners when they were granted the present lease; the area of concern and its immediate proximity is very congested due to overall traffic flows; and some type of traffic engineering study or remedy would seem proper.

Andrew Sisco, 6075 Route 1, Grant, stated he is a member of the Orioles; all Codes will be taken care of; and requested the Board grant the CUP.

Ida Gwinn, 8520 U.S. Highway 1, Micco, President of Summit Cove Condominium, stated the Condominium is 80% permanent residents and 90% senior citizens, including those in River Grove Mobile Home Park; they were surprised by the P&Z Board?s recommendation for approval; allowing the CUP will add insult to injury; and there are already two establishments serving alcoholic beverages within 150 feet of this building and residential families. She noted there are many reasons why the County should not allow another alcoholic consumption permit in this already congested area; and there have been fatal accidents within a 1,000 feet radius. She stated with a CUP, there will no longer be a peaceful co-existence due to more traffic and the hazards that this type of permit creates. Ms. Gwinn requested the Board deny the CUP; and presented photographs to the Board for its review.

Mr. Ritchie stated there have been no accidents caused there since the Orioles have been in the neighborhood that he knows of; there are two driveways which will eventually be marked one in and one out; he has approval for the septic tank here; it has not had the completion inspection by the fire department yet; and he has the water inspection.

Commissioner Higgs stated the request is not compatible in this location and does not meet the standards of review for a CUP for the sale of alcoholic beverages.

Commissioner Ellis stated a lot of things that have been brought up have to do with the operation of the club and not the CUP; he does not understand how the CUP affects any of these issues; with no CUP, they still meet as a club; if there is a CUP with the stipulation that it stay with a private club, then as long as the Orioles meet there they could still serve beer; and if they leave, the CUP goes away. He noted he does not see how a CUP or no CUP influences the use of the property; and the property use remains the same whether or not they have the ability to sell beer to their members.

Zoning Official Rick Enos stated he would like to clear up one misconception; if the CUP is approved and the Orioles later move out, the CUP does not go away; however, if the CUP were to be limited to a private club, then it would limit any future users to private clubs. Commissioner Ellis stated the only person who could come in behind them would be another private club; with Mr. Enos responding yes.

Commissioner Higgs stated the character of this particular area with the two residential properties abutting it and the way that this particular property is set back pretty far from U.S. 1 and the way it abuts it makes this particular use incompatible with the surrounding neighbors. Commissioner Ellis stated the only use they are talking about is if the Orioles sell beer because they can still use the facility as a club and have yard sales and barbecues; with Commissioner Higgs responding that is correct.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to overrule the P&Z Board and deny Item 5. Motion carried and ordered; Commissioner Ellis voted nay.

Item 9. Todd B. and Sally L. Jaffe?s request for CUP for agricultural pursuits (horses) in PUD zone also having a CUP for agricultural pursuits (three horses and a horse barn on part) on 3.89 acres located and having frontage on the east side of Fawn Lake Boulevard, northwest of the intersection of Fawn Lake Boulevard and Kingfisher Way, and on the west side of Kingfisher Way from the intersection of Fawn Lake Boulevard and Kingfisher Way, which was denied by the P&Z Board.

Attorney Frank Griffith, 1970 Michigan Avenue, Cocoa, representing the applicants, stated the Jaffe?s have applied for a CUP to allow an additional horse on their property; this is the Fawn Lake PUD which is north of Highway 46 north of Titusville; it is a little over a 600-acre development; the Jaffe?s moved to this property in 1990; in 1992, they applied for a CUP for three horses and a barn on two lots where their house was; and it was approved by the Board. He noted in 1994, the Jaffe?s purchased more lots; they applied for a CUP to extend it for horses to three additional lots; and it was denied by the Board. He advised in 1996, the applicants applied for a CUP to allow the conditional use on three lots that they owned; and it was denied by the P&Z Board by a vote of 4:3. Attorney Griffith presented a map showing location of the Jaffe?s property to the County Commission. He stated during several meetings, there have been complaints by some of the residents that this is a commercial activity and the Jaffe?s are boarding horses and giving riding lessons; those things are not true; and provided conditions to the Board that there will no boarding or lessons. He noted no one will use these horses except for the family; and he has given a list of these conditions to Attorney Ken Crooks who represents one of the people in opposition and to Zoning Official Rick Enos. Attorney Griffith presented approximately 60 letters to the Board from residents supporting the CUP; stated the request is for one lot which will only allow one more horse; the developer of Fawn Lake is Tim Dennard; and such letter states, ?I have reviewed the request for a CUP filed by Todd and Sally Jaffe which would allow them to use additional property that they own for their horses. I am in favor of the granting of the CUP because I understand the Jaffe?s are only asking that four horses be allowed on their property. I am the developer of the Fawn Lake PUD and it has always been our intent to allow residents to have horses on their property, provided they own multiple lots which would allow sufficient room for the horses. We have used the fact that horses are allowed in this development as marketing tool for many years; and I believe the request by the Jaffe?s is consistent with the character of the neighborhood, and I would urge you to support their request. As far as I?m concerned, the granting of this request would not violate any deed restrictions of this development. Thank you for your attention in this matter. Sincerely, Tim Dennard.? Attorney Griffith stated Tim Dennard is the developer of the project and is still a resident of Fawn Lake. Mr. Griffith stated this request would allow one more horse to be used on this parcel.

Chairman Cook inquired have the other two lots been withdrawn; with Mr. Griffith responding affirmatively.

Ken Ross, 5364 Amy Way, Mims, opposed the granting of the CUP; stated there is already a CUP there for the two lots; he is not sure how that occurred; he was not made aware of it as a resident of the neighborhood; and he has been there since 1989. He noted he invested thousands of dollars in his home in Fawn Lake because horses were not to be permitted there according to Mr. Dennard; everyone who bought lots in this area was aware of what the deed restrictions were; and those who invested there because they liked and agreed with the deed restrictions should be protected. He urged the Board to vote against the request.

Glenn Roberts, 5470 Amy Way, Mims, stated he has no objection to the horses if they are kept within the confines of the stables that are provided by the subdivision; and the deed restrictions do not allow the horses to be maintained on the individuals lots.

David Wardle, 5370 Amy Way, Mims, presented a petition to the Board signed by 62 Fawn Lake homeowners opposing the CUP application; stated he likes horses and is not opposed to them as long as they are not kept on single family residential lots; and a precedent would be set if this CUP is approved. He further presented Fawn Lake?s covenants, conditions and restrictions, and design review guidelines to the Board.

The meeting recessed at 11:17 p.m.

The meeting reconvened at 11:24 p.m.

Attorney Ken Crooks, 101 S. Courtenay Parkway, Merritt Island, representing Nesan Sinnadorai, stated Mr. Sinnadorai is the owner of Lot 135 which is the adjacent property; when the Board has a request for a CUP before it, its job is to look at the criteria that are set forth in the Code to determine whether or not the application satisfies those criteria; in this particular case, it not only has to look at the general standards that are set forth in Section 62-1901; and the request for agricultural pursuits has specific criteria that are set forth in Section 62-1904. He noted it is their contention that this particular application does not comply with that request; it is not intended to allow agricultural pursuits on single lots within PUD?s; in Section 62-1904, one of the criteria under C is that land areas which are to be used for agricultural pursuits in a PUD must be designated in a particular tract as defined in that zoning classification, that being the PUD zoning classification; and in Section 62-1441 which defines tract for the PUD zoning classification, tract is defined as an area delineated within a stage except single unit lots which are separate unto themselves having a specific legal description of their boundaries. Attorney Crooks stated in Section 62-1904 under the design criteria and what is required, it is quite clear that agricultural pursuits were not intended to be allowed on single family, single unit lots; it was intended to be as part of a separate tract in the same nature as a common open space or recreational area as part of the PUD when it was proposed, not subsequently on a case by case basis by individual property owners; they do not believe that as a result of that, this application should have been approved in 1992; and it is probably the fact that there were not any other property owners other than Mr. Dennard within the notice area at that time that would have objected in 1992. He noted the fact that this application specifically violates the PUD?s deed restrictions, as defined in No. 19 of the declarations, should be taken into account by the Board, although it is not determinative; the applicant has had credibility problems in the past, as the neighbors believe it does not matter whether the CUP has been approved or denied in the past; and the horses have been on the properties across the road from Mr. Sinnadorai?s property. Attorney Crooks advised there is a community stable in the appropriate area that is away from the residential areas; that is one of the tracts for agricultural pursuits that is provided for in PUD; they do not believe the application satisfies the criteria in the County Code; and it should not be approved.

Sherri Lewis, 2645 Fawn Lake, Mims, stated she has lived in Fawn Lake for one year; she was told she could have horses if she wanted one because of the size of the lots; and she has no complaints with the Jaffe?s or their horses.

Nesan Sinnadorai, 5675 Canvasback Drive, Mims, expressed his opposition to the CUP request by the Jaffe?s; urged the Board to deny the request; and stated it was denied before, but has been violated after it was denied twice.

Michael Wiedemann, 5640 Bobwhite Trail, Mims, presented photographs of the area to the Board; stated he is opposed to granting the requested CUP; the CUP is the same one that was rejected by the P&Z Board and the Board of County Commissioners 20 months ago; and since that time, Mrs. Jaffe has continued to stable horses on the lots in question in violation of the PUD?s zoning and the County Commission?s decision at that time. He advised all of the property owners were aware of the CCR?s when they purchased their lots and built their homes; horses and other livestock on single family home sites have never been a permitted use under a number of the sections of the CCR?s; and requested the Board oppose the CUP request.

Susan Ragonesi, 3060 Fawn Lake Boulevard, Mims, stated she is not opposed to the CUP requested by the Jaffe?s; she has lived in her home since July, 1995; part of the reason she purchased the property in 1993 was because at that time the horses were there; she drives past the pasture twice a day; the horses are very beautiful; and there is no odor. She noted the horses are kept in exceptional condition; and requested the Board allow the Jaffe?s to keep their horses.

Sally Jaffe, 2900 Kingfisher Way, Mims, stated she bought in this development because it was marketed as an equestrian development; she purchased the property in 1990 and asked for the CUP in order to build a barn in 1992; and she was granted that. She noted she has pictures of the community barn which was a pipe dream at that point for the developer; it was many years away; he suggested that she build her own barn and keep her horses on her property; she abutted Tract W which is a common area; riding horses is a hobby with her children and herself; and she does not train other horses. She noted her neighbor Rachel Poteet sees the horses daily; she purchased her property because there would be privacy and she could enjoy the horses; Mr. and Mrs. Bird and Mrs. Doran also support her; to this day, there is no water and electricity at the Fawn Lake community stables; and she does not know why some of the residents want her to keep her show horses at a facility with no available water. Ms. Jaffe showed her properties located on the map to the Board; and presented letters and a petition to the Board from those property owners that support her CUP request.

Pete Simons, 2800 Fawn Lake Boulevard, Mims, located his property on the map; stated he has lived there for three years; he moved in when the horses were there; he was told that horses were allowed; and the horses, land and fencing are all well kept and maintained. He noted the barn located on the property is well designed and matches the Jaffe?s house; it is not an eyesore; he has spoken at length to Ms. Jaffe about what her plans are for this property; she has absolutely no plans to do any kind of commercial business on it; and it is a hobby for herself and her sons. He encouraged the Board to approve the CUP.

Linda Simons, 2800 Fawn Lake Boulevard, Mims, stated there is no odor from the horses; it is nice to look out and see the horses instead of a building there; Fawn Lake is a rural area; the community barn does not have any electricity or water; and that is a problem. She requested the Board approve the Jaffe?s request.

Attorney Griffith stated the request meets the criteria of Section 62-1901; he disagrees with Attorney Crooks concerning the tract; he believes Zoning Official Rick Enos also disagrees that the three parcels taken together, 107, 108 and 109, which would, if approved, have a CUP, are a tract as set forth in the regulations; deed restrictions say the land use as allowed in that property are those land uses permitted by the Code of Ordinances of Brevard, which would include CUP?s; and one has been granted. He noted they have tried to scale the request down so there is no impact; it is simply to allow a total of four horses on a total of three lots; there are already three horses on two lots; and they have also voluntarily offered to restrict any kind of commercial activity because some people thought there was such a thing. He stated the people who are against the CUP do not live anywhere near the Jaffe?s; and the people who live closest to the Jaffe?s support the request.

Commissioner Scarborough stated there has been some reference to Section 62-1904; and requested Assistant County Attorney Eden Bentley respond.

Attorney Bentley stated there is a Section in the Code which is somewhat confusing because it talks about permitted uses for a tract in a PUD and allowing agricultural uses on these tracts; and the question arises whether or not the CUP for agricultural pursuits was intended to be on areas like Tract W or whether that agricultural pursuits CUP was also intended to be on the lots. She noted this question came up the last time the Board heard a CUP for this property; the Board did not specifically make any finding on how it interpreted that Section of the Code; it was argued that the Section was not intended to apply to lots, but only to tracts; the court did not rule on that issue in its findings several months ago; so there is a question about the interpretation of the Code there.

Commissioner Scarborough stated in looking at the language in the Design Review Committee Guidelines, it seems to be a lot stronger than in the deed restrictions; it says no livestock, etc., except for a reasonable number of dogs, cats or domesticated household pets; the Board does not enforce these things for the community; and this is a guideline on what the community should be.

Attorney Bentley stated the deed restrictions and the other covenants Commissioner Scarborough is referring to are not controlling in this case; those are private deed restrictions; but they could be interpreted as some sort of evidence regarding the character and nature of the neighborhood, particularly when taken in conjunction with comments of the residents of the neighborhood. Commissioner Ellis stated the County does not enforce the deed restrictions; with Commissioner Scarborough responding he would like to think he would respect the deed restrictions.

Commissioner Higgs stated the issue is the expansion to the one lot; the Board is not responsible for what the developer has not put into the project, nor the deed restrictions; however, it is responsible to the community and their expectations. She noted having looked at the documents, there may be some conflict; but the overriding and very clear picture in the deed restrictions is that the keeping of animals on the property is not a part of the expectation. She stated she cannot support expansion of the CUP.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to deny Item 9 as recommended by the P&Z Board.

Commissioner Scarborough stated he has deed restrictions in his neighborhood; he is glad they exist because he believes it increases the value of the property; if the City of Titusville said the deed restrictions do not apply, he would be upset; and it would be intruding on some private property rights that it should not be doing.

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

Item 13. Sundance Development, Inc., a Florida Corporation and Professional Investment Group, Inc., a Florida Corporation?s request for CUP for additional building height in RU-2-15 zone on 3.3? acres located on the east side of A1A, north of Boskind Road, which was approved by the P&Z Board.

Attorney Ben Shoemaker, representing the applicant, stated he believes the applicant meets the criteria outlined in the Code for a CUP; they are asking for a 23-foot height variance; that is to go with a seven-story building; and the building they are allowed would be 240 feet wide and five stories over garages. He noted they will be reducing the building by 60 feet; they initially went in asking for 10 stories; and they met with the residents and reduced it to seven stories. Attorney Shoemaker indicated the proposed building and other surrounding properties on the map; stated the seven-story building is comparable and consistent with the buildings in the surrounding area; it is an attractive building; and given the CUP?s that have been granted and the height of the surrounding structures, they believe the request is consistent and meets the requirements for a CUP. Attorney Shoemaker stated he is sure there are people who do not want the building built; the applicant has the right to build the building; he did not believe that a taller building was less aesthetically pleasing than a wider building; and a CUP is warranted, given all the conditions are met.

Edward Fleis, 1090 Highway A1A, Suite 200, Satellite Beach, explained the location of the building on the property.

Bob Vaughn, 151 Hacienda Drive, Indialantic, stated he lives in the Casa del Sol Condominiums which is located directly across A1A from the proposed development; he is against the additional height; and the entire Condominium Association is also against it. He noted this height is too much; it is not compatible with the area; and requested the CUP be denied.

Mike Daniel, 2140 N. Shannon, Indialantic, stated his comments from Item 1 apply to this request as well; the proposed building is not consistent with what is right next to it; there are bigger buildings approximately ?-mile away; this leads to a domino effect; it is already happening in the area between Eau Gallie Causeway and U.S. 192; it is time to draw the line and get back to the Ordinance as it was written; and the Board is not obligated to guarantee a developer the maximum amount of profit on this piece of property. He stated high-rises on the beaches are not desirable; and the intent of the Ordinance was to limit the height of buildings on the beach. He stated if the CUP is granted, it will set a precedent; the Board made a good decision tonight regarding another similar project; and requested that line be drawn again.

Lori Kruger, 220 Avenida Del Sol, Indialantic, stated her comments from Item 1 apply to this item also; the developers are going to point out the few big buildings that are in the area; the Board needs to look directly next to this proposed property; to the south there are three single story buildings; across the street there is a whole neighborhood of single story buildings; and that is the character of the surrounding area. She noted the shadows on the dunes are going to inhibit the vegetation from growing, along with the turtles, etc.; the residents do not want to give the applicant an additional building height; the applicant needs to go with what is zoned as he knew what it was when he purchased the property; and that is the way it should stay.

Edward Gensen, 1415 N. Highway A1A, Indialantic, stated having lower buildings makes the oceanfront more attractive to all; it is common knowledge that big buildings that do not conform with the existing buildings are detrimental to the neighborhood; the proposed building will lower the value of the units in adjoining buildings; it will make the neighborhoods less attractive; and it will hurt the single family residents. He noted in his area, all the residents and property owners are against the request; and the Board has a great opportunity to send a positive message by putting the common interests of the community ahead of profit and unanimously voting to deny the CUP.

Kirk Aguero, 220 Avenida Del Sol, Indialantic, stated his comments from Item 1 apply to this item as well; he is opposed to the building being higher; and requested the County stop where the restrictions are now and not go any farther.

Commissioner Ellis stated the rules have not changed in the past three or four years; the market may have changed for projects like this; but the rules have not changed.

Thad Altman, 361 Kilmarnock Place, Melbourne, stated his parents own a home south of this project; historically, all the homes in this area were deed restricted to two units per acre; a number of the residents enjoyed the residential community; they fought for that; and the landowner to the south, who now has a condominium, went to the District Court of Appeals and lost. He noted after the Marketable Record Title Act came into effect, a loophole in the law allowed a landowner to beat the deed restrictions; and the court overturned the deed restrictions. He stated this particular area is residential; another loophole he sees is they are deeding a public access point which allows them to build a bigger building than what the restrictions ordinarily allow; there are dune access points along the beach; the opposition tonight is literally the residents across the street; and they oppose the larger buildings.

Tacy Daniel, 2140 Shannon Avenue, Indialantic, expressed her opposition to the CUP request; stated the area should remain consistent; and the applicant can complete his project without the additional height on the property.

Alma Durling, 2165 N. Shannon Avenue, Indialantic, stated she concurs with the previous speakers in opposition to the CUP request; this will affect over 100 homeowners immediately across the street; and the environment needs to be respected.

Mary Paine, 2105 Shannon Avenue, Indialantic, stated the residents enjoy the beaches; they have lost a lot of battles to Codes in the last 21 years; the neighborhood has put up with a lot of losing battles; and they deserve to win one battle.

Margaret Broussard, 3660 N. Riverside Drive, Indialantic, stated she agrees with the previous speakers in opposition to the proposed request; enough damage has been done; and advised of scrub jays in the area and feeding them.

Carole Pope, 715 Rockledge Drive, Rockledge, stated her comments from Item 1 also apply to this item; the Board has the duty to deny this request; the spacial relationship between the proposed building or structure and existing buildings or structures located on properties contiguous to the proposed building site shall be compatible, which is in Section 62-1902; and there are single family homes right beside the property in question.

Bonnie Murphy, 1415 N. A1A, #105, Indialantic, stated she concurs with the prior speakers in opposition to the request; and presented a petition signed by approximately 500 people in opposition to the CUP. She requested the Board deny the item.

Chris Swanson, 1415 N. Highway A1A, #307, Indialantic, stated she agrees with everyone?s comments and the issues brought up in opposition to the requested; and urged the Board to deny the CUP.

Paula Edwards, 1415 N. A1A, Indialantic, stated perhaps the applicant can find a way to develop this property in the 45 feet he is allowed and make it an attractive building; and requested the Board deny the CUP.

Patch Williams, 360 Delmar, Indialantic, stated he lives across the street from the proposed site; his understanding of the Comprehensive Plan was not to stifle growth by any means, but to control it and channel it into some areas, and away from other areas; and the beach was one of these designated areas that was in need of controlling for the sake of the environment. He requested the Board represent the community, do the responsible thing for the beach, and oppose the CUP.

Chairman Cook stated Mary Warshowsky, 877 N. Highway A1A, #1005, Indialantic; Eleonore Salopek, 877 A1A, Indialantic; Richard Normyle, 251 Avenida Central, Indialantic, and Deborah Normyle, 251 Avenida Central, Indialantic had to leave, and oppose the proposed request.

Attorney Shoemaker stated the reason the applicant thought he could apply for the CUP was because of all the buildings in the area and the CUP?s that have been issued by the County; this was not something new; and the applicant did not understand it was a problem. He noted he came in with legitimate expectations that he should be able to get a CUP; and the proposed request is consistent.

Chairman Cook stated he cannot be responsible for the action of prior Board?s; and he can only be responsible for his actions while he is a member of the Board.

Commissioner Ellis stated when looking at the two previous CUP?s, each one of those was trading one story for a beach access; they were surrounded by higher buildings; and he does not believe anyone will find a CUP for four, five or six stories additional height.

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

Commissioner Higgs stated Section 62-1901 outlines the conditions of a CUP; it states they must be compatible with the general area; the Board has seen evidence tonight in regard to the surrounding properties to the north being five stories; it has seen the documentation of single family both to the south and west of this property; and that is important evidence in regard to looking at this and the compatibility of the area.

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

PUBLIC HEARING, RE: REQUEST BY SATELLITE BEACH DEVELOPERS LTD./SATELLITE BEACH CONSTRUCTION CORP. G. P., RE: VARIANCE TO BREVARD COUNTY COASTAL SETBACK LINE

Chairman Cook called for the public hearing to consider request by Satellite Beach Developers Ltd./Satellite Beach Construction Corp. G.P. for variance to Brevard County Coastal Setback Line.

Chairman Higgs stated this is for the Coastal Construction Line variance; and it is all vegetation inside the buffer.

Motion by Commissioner Higgs, seconded by Commissioner Ellis, to approve request by Satellite Beach Developers, Ltd./Satellite Beach Construction Corporation, G.P., to grant a variance of 25 feet to the Brevard County Coastal Setback Line as allowed in Section 8 of Ordinance No. 85-17 or Chapter 62, Article XII, Section 62-4209, entitled Variances, of the Brevard County Code. Motion carried and ordered unanimously.

Upon motion and vote, the meeting adjourned at 1:27 a.m. on February 27, 1996.

MARK COOK, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

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