The Board of County Commissioners of Brevard County, Florida, met in regular session on February 15, 2005, at 5:33 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Ron Pritchard, D.P.A., Commissioners Truman Scarborough, Helen Voltz, and Susan Carlson, Interim County Manager Peggy Busacca, and County Attorney Scott Knox. *Absent was: Commissioner Jackie Colon.

The Invocation was given by Reverend Edward Buckner, Friendship Primitive Baptist Church, Cocoa, Florida.

Commissioner Truman Scarborough led the assembly in the Pledge of Allegiance.

ANNOUNCEMENT

Chairman Pritchard advised Reverend Buckner is a community leader and activist; he had the pleasure of working with Reverend Buckner on several issues; and he is a gentleman and a fine representative.

PERMISSION TO SCHEDULE EXECUTIVE SESSION, RE: CITY OF COCOA ISSUE

County Attorney Scott Knox requested permission to schedule an executive session to discuss the City of Cocoa case; stated there was mediation yesterday; and advised it would be good to meet with the Board to explain the result of the mediation.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to grant permission to schedule an executive session on February 22, 2005 at 11:30 a.m. or as soon thereafter as possible to discuss the City of Cocoa issue. Motion carried and ordered unanimously.

Commissioner Scarborough stated he would like to discuss the donation of the Dunn House to the Parrish Medical Foundation; the Foundation is separate from the Hospital, but is solely for the purpose of supporting the Hospital; and the letter in the file indicates a desire to donate and a desire to accept the donation. He stated because of its condition, the owner of the property is not going to be able to continue paying for insurance unless it is fixed up; the owner does not mind paying the insurance; but he would like to have assistance in taking care of the house. He stated neither the Hospital not the Foundation have the personnel that the County does; he discussed this with the County Attorney; it is very unusual; but it would allow the Board to preserve a historical home. Commissioner Scarborough stated the home will be moved to the Hospital property; it will be restored; and it will become the offices of the Foundation if everything comes to pass. He stated it is still private property, but is in transition; and requested the County Attorney explain why this would or would not violate Florida law.

County Attorney Scott Knox stated the issue the Board has to face when making expenditures of public money is whether or not it is for a public purpose; and historical preservation has been recognized as a public purpose throughout the nation and State. He stated if the Board decides it wishes to participate in stabilizing the house, that falls within the realm of public purpose.

Commissioner Scarborough distributed a letter prepared by Cheryl Page of Parks and Recreation that itemizes the costs and expenses; and stated it is less than $2,000.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to authorize expenditure of supplies and labor in an amount not to exceed $2,000 for the preparing of the Dunn House so it can continue to be insured until taken into possession by the Parrish Medical Foundation. Motion carried and ordered unanimously.

Commissioner Voltz inquired where will the funding come from; with Commissioner Scarborough responding he would be happy to have it come from District 1 Parks and Recreation MSTU. Interim County Manager Peggy Busacca advised that can be done. Commissioner Scarborough stated that will be part of the motion; with Commissioner Voltz advising it is part of her second.

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

REPORT, RE: FRIENDS OF WICKHAM PARK AUDIT

Commissioner Voltz stated she got a letter from Clerk of Courts Scott Ellis concerning the Friends of Wickham Park; and she wanted to check on that issue. Chairman Pritchard inquired if this is concerning the audit; with Commissioner Voltz responding yes.

Commissioner Carlson stated she has not seen the letter. Commissioner Voltz stated she thought everyone got a copy; and provide Commissioner Carlson with a copy of the email. Commissioner Carlson stated she will look into it, but she cannot respond at this time.

REPORT, RE: MARINAS

Commissioner Voltz stated she had a meeting in her office with Steven Webster and Mark Leslie concerning the issues with marinas; 13 other counties have MPP plans that greatly affect this issue; and they were talking about the possibility of getting a meeting together with people from all 13 counties, and then going to Tallahassee to meet with Ken Haddad to itemize the issues.

Chairman Pritchard stated it is a good idea. Commissioner Scarborough inquired if Chairman Pritchard is going to Tallahassee tomorrow; with Chairman Pritchard responding it was postponed to March 17, 2005.

Commissioner Scarborough stated he had a similar visit; when the issue came up one of his concerns was the capacity of upland properties to support any water access; and he would prefer to have an integrated discussion of the upland potential for marinas or access with boat launching. He stated there was a point in time when there was a lot of clamming in the Port St. John area; that did not preclude people from overwhelming the boat launching area; and there were incidences where there were almost wars with people fighting. He stated it is something that goes beyond just water activity; and the other thing that was brought to his attention was that the price of a boat slip is to the point that it exceeds the price of the average home in Brevard County, and will only escalate more as they are privatized. He stated with the growth of population and the fact that the lagoon is the closest waterway to Seminole, Orange, and Osceola Counties, it will become a very exclusive thing; and the average person may be precluded, unless he wants to violate the law in some manner in doing his boating. He stated the upland dynamics were not discussed; and he would like to see the upland dynamics as well as the impact to the lagoon, because that is important.

Commissioner Voltz stated the County has issues; the 13 other counties have their issues; and if they could put something together comprehensively, they could go to Tallahassee and say this is what is happening. She stated she would like to work with Natural Resources Management Director Ernie Brown to send out letters to the communities to see what the possibility is and whether they wish to meet before the session starts, and during the session go to Tallahassee to see what they can accomplish. She stated they need to have the best interest of the community at heart; but at the same time, they are sharing in some of the issues with losing boat slips; and it would be a good idea to do that, if the Board agrees.

Chairman Pritchard stated he agrees; he would like to see that happen; Commissioner Carlson brought it up at the last meeting; and they all realize they are losing public access to the waterways. He stated privatization of land has become economically feasible as people get out of the marina business and condominiums are built; and they are losing more and more public access; but Commissioner Scarborough is right that there has to be enough upland to support the infrastructure on the marina, which is part and parcel of the discussion. He stated he would support a motion.

Motion by Commissioner Voltz, to authorize sending letters to the 13 counties that have MPP’s to look at marina siting issues and consider going to Tallahassee and voicing concerns collectively.

Commissioner Carlson stated she had some constituents request the Board restate the motions because sometimes they do not quite understand what the motion is; and requested Commissioner Voltz restate the motion.

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to authorize working with Natural Resources Management Director Ernie Brown to send out letters to the 13 other communities that have MPP’s to look at the boat siting issue and then see about going to Tallahassee to voice all concerns collectively. Motion carried and ordered unanimously.

Commissioner Carlson stated she went to a board of directors meeting as a guest for MyRegion.org; and it was very interesting. She stated one of the things that was distributed was information on a Hispanic Summit, which is coming up on March 2 through 4, 2005 at the Orlando Museum of Art; and inquired if anyone is interested in getting further information on that. She stated she will be sending Yvette Torres of her office, who is known throughout many of the areas of the State as being the Brevard County Hispanic liaison because of her fluency in the language and being able to bridge the gap in terms of the issues.

Commissioner Colon stated she was invited, and will also be attending.

APPOINTMENT, RE: COMMUNITY ACTION BOARD

Chairman Pritchard stated he would like to make an appointment of Kathleen Karmazin-Calin to the Community Action Board; and would welcome a motion.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to appoint Kathleen Karmazin-Calin to the Community Action Board, with term expiring on December 31, 2005. Motion carried and ordered unanimously.

REPORT, RE: RESOLUTION FOR NURSING STUDENTS DAY

Chairman Pritchard stated he received an email from Adriana Albuerne-Pargas, who is an Associate Degree nursing student at Brevard Community College and serves on the Executive Board of the BCC Nursing Students Association, asking the Board to proclaim February 23, 2005 as Nursing Students Day. He stated the Board is having a meeting on February 22; and February 20 through the 26, 2005 is Nursing Students Week. He stated he is bringing it to the Board’s attention now; the Board will be adopting a resolution; and someone will be present to accept the resolution.

Commissioner Voltz stated she has been working on that in her office; she used to be a student nurse; and she is putting together a resolution so she hopes Chairman Pritchard was not planning to do that. Chairman Pritchard recommended Commissioner Voltz coordinate with Sharon Luba of his office as he believes she has already written a resolution.

ANNOUNCEMENT, RE: WHITLEY BAY MARINA

Chairman Pritchard stated the Whitley Bay marina issue has been postponed to March 17, 2005, so he will not be going to Tallahassee.

REPORT, RE: BREVARD COUNTY FAIR

Chairman Pritchard stated there is an organization being formed to bring the Brevard Fair back to Brevard County; there has been a lot of controversy regarding the fairs; some personal and private conflicts have occurred; and a group representing a broad spectrum of the agricultural community, educational community, and business community wants to form a steering committee to secure a charter from the Department of Agriculture that would allow holding a State fair. He stated the name of the group is up in the air at this point, but would probably be the Brevard County Fair Association or something to that effect; but the County itself would not be a part of this. He stated the charter would be given to a group of people interested in doing this; that group would then become a corporation and a 501C3 organization; and through a contract, the group would have someone manage the actual fair. He advised it is only in the discussion stage now; and the reason he is bringing it to the Board’s attention is because the Board would have to endorse the effort and request the charter be given to the group.

Commissioner Carlson inquired if legislative intent is needed to bring it to the Board so it can identify membership and things like that, and have the group tasked with what it needs to be tasked with and come back with a recommendation. Chairman Pritchard responded not at this point. He stated the meeting was held briefly on Monday because the group thought it was under a deadline by Representative Allen in order to secure the charter so funding could be inserted into the upcoming legislative process; he spoke to Representative Allen who intimated that there may not be an impending deadline; and the difference is that if there was an impending deadline the group would use the 4-H portion of the Ag Center as the recipient for its charter as it is already incorporated and a 501C3, but if there is no deadline, the group can go the route of forming the corporation and obtaining the 501C3 status. He stated the information he passed back to the group is what he is telling the Board; and he is just advising that at some time in the future, it will most likely be coming back to the Board.

Commissioner Colon stated she definitely thinks the County needs a fair; she is supportive of that; but the fair has gotten so expensive that folks are not able to enjoy it. She stated hopefully there will be two sides, one with rides and another one where people will be able to enjoy the rodeo, the petting zoo, and things like that so it will be a true fair that is affordable for the
community. Chairman Pritchard stated a fair with jams and jellies and things like that. Commissioner Colon stated she is talking about a real fair with a chili cookoff and all that was mentioned; and it should be affordable to the community. She stated families could not afford to go to the previous fair; and commented on Palm Bay Nights Out, which were held once a month at no charge to the community. She stated it gave a sense of community; and it is something that is well worth the support of the Board.

Chairman Pritchard stated that was part of what was discussed; the things that Commissioner Colon commented on were mentioned such as the jams and jellies, tractors, equipment, the petting zoo, and the rodeo; and those are all things that people remember going to without the high price tag. He stated one of the problems is that going to the fair has been so expensive that people cannot afford to go, so it needs to be made more realistic.

RESOLUTION, RE: COMMENDING EAGLE SCOUT TRAVIS CLINGER

Commissioner Scarborough read aloud a resolution commending Travis Clinger on his achievement of the rank of Eagle Scout.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to adopt Resolution commending Travis Clinger on his achievement of the rank of Eagle Scout. Motion carried and ordered unanimously. (See page for Resolution No. 05-32.)

Commissioner Scarborough presented the Resolution to Mr. Clinger, who advised of his Eagle Scout project, a playground for the Parrish Medical Center Children’s Center.

RESOLUTION, RE: COMMENDING EAGLE SCOUT ROGER MCCANNON PATTERSON

Commissioner Carlson read aloud a resolution commending Roger McCannon Patterson for his achievement of the rank of Eagle Scout.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to adopt Resolution commending Roger McCannon Patterson on his achievement of the rank of Eagle Scout. Motion carried and ordered unanimously. (See page for Resolution No. 05-033.)

Commissioner Voltz inquired how old is Mr. Patterson; with Mr. Patterson responding 17. Commissioner Carlson stated Mr. Patterson has a lot of accomplishments. Chairman Pritchard inquired if Mr. Patterson plays stand-up bass; with Mr. Patterson responding yes.

Commissioner Carlson presented the Resolution; and requested he explain his project. Mr. Patterson stated he created a storage facility for his church.

RESOLUTION, RE: COMMENDING EAGLE SCOUT JORDAN MATTHEW ADAMS

Commissioner Carlson advised Jordan Adams is the son of Joanne Adams of Planning and Zoning; and is her second son to become an Eagle Scout. She read aloud a resolution commending Jordan Matthew Adams for his achievement of the rank of Eagle Scout.

Motion by Commissioner Carlson, seconded by Commissioner Voltz, to adopt Resolution commending Jordan Matthew Adams on his achievement of the rank of Eagle Scout. Motion carried and ordered unanimously. (See page for Resolution No. 05-034.)

Commissioner Carlson presented the Resolution to Mr. Adams, who expressed appreciation to the Board.

RESOLUTION, RE: PROCLAIMING FLORIDA HAZARDOUS WEATHER AWARENESS
WEEK

Chairman Pritchard stated the work that Emergency Management does is remarkable; people do not realize that when there is a situation like the hurricanes, Emergency Management staff works for days before and days after the storm; and it is not the most pleasant living conditions. He stated everyone appreciates what Emergency Management staff does; they do not look forward to more storms; but if they happen, they know they are in good hands.

Chairman Pritchard read aloud a resolution proclaiming the week of February 20 through 26, 2005 as Florida Hazardous Weather Awareness Week.

Motion by Commissioner Voltz, seconded by Commissioner Colon, to adopt Resolution proclaiming the week of February 20 through 26, 2005 as Florida Hazardous Weather Awareness Week. Motion carried and ordered unanimously. (See page for Resolution No. 05-035.)

Chairman Pritchard presented the Resolution to Emergency Management Director Bob Lay. Mr. Lay stated they appreciate following all the Eagle Scouts today; as they go through their development doing the merit badges, they are learning something; and that is the same message he would like to get out to all the residents. He stated Florida is a wonderful place to live; but it is necessary to understand the weather.

Interim County Manager Peggy Busacca stated State Representative Poppell is bringing the County Manager from Indian River County to see the Brevard County Emergency Operations Center to see how things are done right, so Brevard County is the example for the State.

Commissioner Scarborough stated there is a young lady celebrating her 100th birthday; she is not present this evening; but everyone wishes Ella Gerrity a Happy 100th Birthday.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to adopt Resolution congratulating Ella Gerrity on her 100th birthday. Motion carried and ordered unanimously. (See page for Resolution No. 05-036.)

PERMISSION TO FILE INJUNCTION, RE: BREVARD COUNTY VS. SUSAN J. PAXTON

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to grant permission to file an injunction against Susan J. Paxton for a continuing and repeat violation of Brevard County Code on property located at 525 South Banana River Drive, Merritt Island. Motion carried and ordered unanimously.

BINDING DEVELOPMENT PLAN AGREEMENT WITH DAVID C. AND CYNTHIA R.
RAMAGE, RE: PROPERTY LOCATED ON THE WEST SIDE OF HARRY T. MOORE
AVENUE, NORTH OF WILEY ROAD

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to execute Binding Development Plan Agreement with David C. and Cynthia R. Ramage for property located on the west side of Harry T. Moore Avenue, north of Wiley Road. Motion carried and ordered unanimously. (See page for Binding Development Plan Agreement.)

APPROVAL, RE: INCREASING SCOPE OF UST’S CONTRACT AND TRANSFER FROM
RESERVE FUNDS TO UPGRADE SAP FINANCIAL SYSTEM

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to approve increasing the scope of the Contract with UST for upgrading the SAP Financial Systems to include functionalities planned for the next fiscal year at a cost of $330,000; and approve transfer of $330,000 from Information Technology Reserve Fund to SAP Upgrade Project to accelerate the functional enhancements. Motion carried and ordered unanimously.

APPROVAL, RE: RESCHEDULING OF BUDGET WORKSHOP

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to approve rescheduling the March 24, 2005 Budget Workshop to 1:00 p.m. on April 14, 2005 following the MPO meeting. Motion carried and ordered unanimously.

APPROVAL, RE: PRECINCT LEGAL DESCRIPTIONS ALTERED AND ADDED

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to approve revised precinct legal descriptions due to annexations by the Cities of Melbourne, Palm Bay, West Melbourne, and Titusville. Motion carried and ordered unanimously. (See pages for Precinct Legal Descriptions.)

REAPPOINTMENT, RE: CITIZEN ADVISORY BOARDS

Motion by Commissioner Voltz, seconded by Commissioner Carlson, to reappoint Constantine Daniel to the Port St. John Public Library Advisory Board with term expiring December 31, 2005. Motion carried and ordered unanimously.

PERMISSION TO EXECUTE CONSTRUCTION ESCROW AGREEMENT WITH THE GREAT
OUTDOORS PREMIER R.V./GOLF RESORT, INC., RE: FIRE PROTECTION SYSTEM

Commissioner Scarborough inquired if Mr. Knox was able to answer the questions concerning the escrow agreement. County Attorney Scott Knox stated he talked to Attorney Mason Williams this afternoon, who was agreeable to making it clear that the County was required to approve any payments made under the escrow agreement; and Mr. Williams agreed to allow insertion of the words, “Brevard County and” in paragraph 2.3 (3) and 2.4 (3). He stated Mr. Williams was also willing to allow the County to demand his resignation as Escrow Agent should any conflict appear.

Motion by Commissioner Scarborough, seconded by Commissioner Voltz, to authorize execution of the Construction Escrow Agreement with The Great Outdoors Premier RV/Golf Resort, Inc. for construction of certain improvements described in the Settlement Agreement, as amended. Motion carried and ordered unanimously. (See page for Agreement.)

STAFF DIRECTION, RE: COUNTY SERVICE COMPLEX, PALM BAY

Assistant County Manager Stockton Whitten stated the County Service Center Complex at Palm Bay is to house the offices of the Property Appraiser, Tax Collector, Supervisor of Elections, and Clerk of the Courts; the construction project, which originally had a budget of $1.36 million, is approximately eight months behind schedule; and at the last Board meeting, the Board requested staff bring back the item for discussion of all the available options regarding completing the project. He stated option one is to proceed with the current contractor in hopes that the project will be substantially complete by March 10, 2005; and option two is to find the general contractor in default and request the surety company take over the project. He stated staff is requesting direction from the Board because the latest revised substantial completion date provided by the contractor is March 10, which is approximately eight months behind schedule; there has been no noticeable activity within the last two to three weeks; and staff continues to receive phone calls from subcontractors regarding payments to them. He stated the County has made a number of additional rental payments because of the delay in completing the project; and the final issue is that the Tax Collector and Supervisor of Elections must provide 30 days notice to the State prior to relocating their offices, and the lease agreement for the current space expires on March 31, 2005.

Commissioner Voltz stated the project was supposed to be done in July; and the Board needs to go with option two, find the general contractor in default, and request the surety company take over the project completion. She stated this has gone on way too long; and they need to get that courthouse completed.

Motion by Commissioner Voltz, to find the general contractor in default and request the surety company take over the project completion.

Commissioner Carlson inquired in regard to option two and the surety company, is the same contractor likely to be hired; with Mr. Whitten responding the surety company posed that as an alternative. Mr. Whitten stated a third option would be for the County to notice the surety company of a default of the contractor and for the County to actually enter into contracts with the subcontractors for completion of the project. He stated legally the County has to give the surety company the opportunity to cure the deficiencies, but the company has advised that hiring the same contractor is a possibility. Commissioner Carlson inquired if that is what Commissioner Voltz was thinking; with Commissioner Voltz responding no, she was thinking they need to get somebody totally different. Commissioner Carlson inquired if the County can do it; with Mr. Whitten responding yes, but the County has to give notice to the surety company. Assistant County Attorney Terri Jones advised the County has to give the surety company at least five days notice according to the contract; if it chooses, the surety company can bring in the general contractor who would become a subcontractor; but the surety would be the one that would be responsible. She stated if the surety does not do what it is supposed to do under the bond, then the County can take it over and sue the surety for any damages it may have.

Commissioner Scarborough stated there were some unfortunate circumstances some years back dealing with some fire stations; and some very decent subcontractors got hurt because the rules are different when doing a government project as opposed to a private contract where there can be the protection of a mechanic’s lien. He stated here the subcontractors are put in the posture of dealing with the surety company; the County has the awkward position of not being a part of the contract with the subcontractors; and while it may appear that he is concerned about the subcontractors, the integrity of people bidding on County contracts is contingent on their feeling safe bidding on such contracts. He stated if the subcontractors get hurt in the process, the Board will find that good contractors will not be able to get good subcontractors to bid on County projects; and that will lead to having less quality builders on the County’s projects. He stated it is not possible to win by not treating people fairly who have done a good job; and it is not the subcontractors who have not performed well, but the general contractor who has failed to put enough funds forward to pay the subcontractors. He stated the subcontractors would just like to do their job and get paid; and recommended the Board learn from its prior experience and understand the dynamics. He stated it is to the County’s benefit to not have any losers except for the persons who have actually failed the County.

Commissioner Voltz inquired if that would not be the general contractor who was originally hired but the subcontractors that the surety company would possibly rehire. Mr. Whitten responded the surety company would either hire a new general contractor or the general contractor who is doing the project now; and once the County finds the general contractor in default and asks the surety company to take over, the contractual relationship reverts to the surety company, which then is, in essence, the general contractor. Commissioner Voltz inquired how long would it take to get this substantially done; stated supposedly it is substantially completed, but it is not; and she is wondering if the Board needs to give the surety company a timeframe because she does not want this to go on another six or seven months. Mr. Whitten stated the surety company is aware of the County’s timeframe; they have corresponded with the surety company regularly; he had a conversation with them yesterday; they understand that the County’s leases are up on March 31, 2005 and there is a 30-day notice requirement; and hopefully the Surety Company will work to have them in the building by March 10, 2005.

Commissioner Carlson stated the suggestion would be that Facilities would act as the general contractor; and inquired if that is correct. Mr. Whitten advised they have to go to the surety company first; the surety company gets a period of time, such as five days, to do whatever it can to expedite the project; and then the County could actually take over the project if it is not satisfied with the surety company’s recommendations. Commissioner Voltz inquired if the surety company would have five days to get back to the Board, and could Mr. Whitten tell the Board what the situation is by next Tuesday’s meeting. Mr. Whitten stated whatever the timeframe, he would suggest, if the Board is going to go with the surety company, that it give it the allowable timeframe and that the motion include basing it on the County Attorney’s review, and if they are not satisfied with the remedy, staff complete the project with the subcontractors that are currently in place.

Commissioner Voltz stated she will make that part of the motion.

Chairman Pritchard inquired how much work is there to do in less than a month; with Mr. Whitten responding it is finish work such as cabinets and tile work; it is basically interior work to bring the project to substantial completion; that is not the final punch-out; but it brings the project to a point where they can have offices begin to move in. Chairman Pritchard stated landscaping and all the other components are part of the construction of the building; and inquired if they are looking at six months before they have a really completed structure. Assistant Facilities Construction Director Sam Stanton stated if they actually got on it, the interior would be finished in less than a month; and the landscaping, if run simultaneously, should only take a couple of weeks to finish. Chairman Pritchard inquired if the Board is being unrealistic by assuming this can be completed by March 10; with Mr. Stanton responding it has been promised since last September. Mr. Whitten stated the focus is on substantial completion; the final completion is normally 30 days after substantial completion; and substantial completion allows them to have a certificate of occupancy issued. He stated they think the work that is left to be completed can be done by March 10. Chairman Pritchard inquired if they go with option two, finding the general contractor in default and then dealing with the surety company, how much time would that take; with Mr. Whitten responding he could not guess, but they would have a period of time to respond. Ms. Jones advised they would have five days; assuming the Board can get a Fed Ex out tomorrow, it would be five business days, so the deadline would be Thursday of next week to make a decision. She stated the surety company is an insurance company; it is obligated under the insurance laws to deal in good faith or the County can make a claim to the Insurance Commissioner; so it must respond within the five days.

Commissioner Carlson inquired what kind of lease agreements are there for the offices the County is giving up; and what date do they have to give them up. Mr. Whitten responded the County actually gave them up in August 2004; they are now holdover tenants; they do not have any agreements; and the landlord has been gracious enough to allow them to remain in their facilities. Commissioner Carlson inquired if the County is paying by the month; with Mr. Whitten advising it is a month-to-month situation. Commissioner Carlson inquired if there is no deadline to get out; with Mr. Whitten responding March 31 is the drop dead date on the current lease. Commissioner Carlson stated if it is going to be three or six months, they are still going to have to come to Sarno. Commissioner Voltz stated that is not that long.

Chairman Pritchard inquired if the County keeps the contractor on board and something does not happen by March 10, what avenues does it have to address other substantial fines or penalties because the contractor did not meet the date. Mr. Whitten responded the Board would have the same options being presented tonight; the Board would be asked to explore the two or three options; and liquidated damages could be assessed at the end of the project. He stated in a month they would be in the same position of having to come back and ask the Board to either continue with the general contractor or notice the surety company that they are in default. Chairman Pritchard inquired if the Board went with option two, could this be held up for 30 days or 60 days while it is in transition; with Mr. Whitten responding that is a possibility because the surety company is going to come up with some solution; it is going to work on the March 10 schedule; but there is no guarantee it will make that schedule.

Commissioner Scarborough stated the problem was dealing with the surety company and having it not be responsive; it was responsive legally, but not in solving the problem; and the persons who got hurt were the subcontractors in the process. He stated while he supports the motion, he thinks the Board needs to be on top of this and extremely aggressive. He stated this is not something where everything falls into place, so there are others who can get hurt; and the Board has a moral, if not legal, obligation to end the process.

Commissioner Voltz inquired if the motion should include making sure the subcontractors get paid for past work or would that be included; with Mr. Whitten responding that is up to the surety company; and he is not aware that the County can pay the subcontractors directly.

Commissioner Scarborough stated that was the problem last time; and he wanted to go on record with that. He stated there are ways to deal with the surety company; there were good people who were going bankrupt because they had been on a County job; and that is not the way the County is. Chairman Pritchard stated that is not a good message.

Mr. Knox stated one of the conditions is releasing $41,598 to the surety company, which he assumes is going to pay the subcontractors; and if it is not, the Board can include in its motion that the money is to be devoted to getting the subcontractors paid. Ms. Jones stated as part of the contract, the surety company would step into the position of general contractor; and the policy about paying subcontractors is part of that contract so they would be obligated by the contract as general contractor. Mr. Knox stated it can still be included in the motion.

Commissioner Voltz stated she will include in the motion to make sure the surety company pays the subcontractors with the $41,598. Commissioner Carlson seconded the motion.

Mr. Whitten inquired if the motion was for option two; with Commissioner Voltz responding yes.

Chairman Pritchard called for a vote on the motion as amended. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ORDINANCE AMENDING CHAPTER 62, SECTION 62-2117,
PARKING, LOCATING, AND STORAGE OF RECREATIONAL VEHICLES,
RECREATIONAL EQUIPMENT, COMMERCIAL VEHICLES, HEAVY EQUIPMENT, AND
MOTOR VEHICLES

Chairman Pritchard stated he has a request from Sharon Savastio to postpone the public hearing to consider an ordinance amending Chapter 62, Section 62-2117, Parking, Locating, and Storage of Recreational Vehicles, Recreational Equipment, Commercial Vehicles, Heavy Equipment and Motor Vehicles to the next evening meeting due to the extensive time required of Item V.B. which is a time certain for 6:30 p.m. He stated he is sure there are a lot of people present to speak to this item as he has a lot of cards.

A member of the audience inquired if the item is being postponed; with Chairman Pritchard responding no.

The meeting recessed at 6:26 p.m. and reconvened at 6:35 p.m.

PUBLIC HEARING, RE: REZONING REQUEST OF ANTHONY LACOURT (DIAMOND
ZONE BILLIARD PARLOR)

Chairman Pritchard called for the public hearing to consider a rezoning request by Anthony LaCourt (a.k.a Diamond Zone Billiard Parlor) for a Conditional Use Permit for Alcoholic Beverages for On-Site Consumption in a PIP zone on 5.94 acres located at the southwest corner of Duval Street and North Courtenay Parkway.

County Attorney Scott Knox stated what is before the Board is a CUP application; this is a quasi-judicial proceeding; in that capacity, the Board sits like a panel of five judges; and they are required to take evidence and make decisions strictly based upon the evidence presented to them. He stated the evidence presented is designed to show that the application meets or does not meet the standards set forth in the conditional use permit section of the Ordinance; if the Board listens to the evidence and decides that it meets the standards, it can grant the CUP; if it determines the evidence does not support that standard, then it can deny the CUP; the Commissioners sit like judges; and like judges, they cannot be swayed by passion, emotion, signs from the audience, or anything like that. He advised there have been cases where signs from the audience have been held to constitute a presumption that there is bias or prejudice on the part of the decision makers, and the decisions have been overturned if they support the audience in those circumstances; and cautioned everyone to exercise restraint, listen to the evidence, and allow the Board to make its decision.

Chairman Pritchard stated the applicant is represented by Brad Bettin; the applicant gets 15 minutes; and the time may be split. Chairman Pritchard stated the speakers will all have five minutes; and explained the lighting system.

Mr. Knox stated there were a couple of binders distributed to the Commissioners yesterday or the day before; he is not sure if everyone had access to those; and if anyone is going to object to the fact that those were distributed, that should be done now so the Board knows where it is headed on this matter. He noted if objections are filed, this item will have to be postponed; but if there are no objections, the hearing can go forward.

Kevin Zari inquired as to the nature of the folders; with Mr. Knox providing a copy of the folder to the speaker. Commissioner Carlson read aloud the title on the folder, Diamond Zone, Inc., Presentation of Evidence to Honorable Chairman and Brevard County Commissioners; Joseph R. and Linda J. Granger, Owners; Bradley Roger Bettin, Senior Attorney and Counselor at Law; Rochelle Lawandales, AICP, Lawandales Planning Affiliates; and advised the folder contains the evidence. Commissioner Voltz inquired if a folder was provided to the attorney; with Mr. Knox responding Ms. Rezenka indicated she did not have a copy delivered to her, but she has managed to get a copy of the contents since yesterday. He stated he does not think she is going to pose an objection; with Ms. Rezenka indicating that is correct.

Chairman Pritchard stated there are no objections, and the hearing will move forward.

Attorney Brad Bettin stated when the Board voted to rehear this matter, all they asked for was an honest hearing where a decision would be based on the facts; and they are convinced that is what they will get tonight. He stated they appreciate the Board’s appreciation of its quasi-judicial obligations; and they appreciate Mr. Knox’s admonition to all involved to honor those quasi-judicial obligations. He stated the issue before the Board is the basic issue of compatibility; they have put together an evidence book, which contains a number of things; the first thing is a letter to Mr. Enos from him confirming that the CUP is only sought for Suites 101 and 102 on the North Courtenay Square facility; and that is the only area for which they are
seeking the CUP. He stated when the application was initially filed, it was for the entire site because there were no suites to identify at that time; the project was in its early stages; and they are only seeking it for Suites 101 and 102, and the remainder of the shopping center is not affected by the application. Mr. Bettin stated the issue in a compatibility analysis is what is likely to happen on the property if the CUP is approved, and will the use of the CUP and the surrounding uses, including the residential use, prove compatible. He stated the Board should not guess or act on speculation; it should not give any weight to how concerned people are; and the ruling has to be based on evidence. He noted the opponents also submitted paperwork last week, a position statement and letter; and they obtained that through the good graces of the Commission as it was not served directly to them either. He stated the opponents posit a false measure of compatibility; the measure of compatibility they are arguing is because there is no CUP on the property at present, a CUP would be incompatible with the surrounding uses; but that is a false premise because it is not what comprehensive planning is based on. He stated comprehensive planning is not based on that which does not exist can never exist; if it did, the Board could lock up shop, go home, and never have to face another one of these issues again because the answer would always be no; but the focus of comprehensive planning is the future. He stated when land uses are appropriate on lands in the future, then even if they are not there right now, that is the analysis the Board is doing. He stated the Brevard County Comprehensive Plan and Land Development Regulations identify conditional uses, which can be permitted on PIP lands; one of those uses is anything that is allowable in BU-2; and one of those uses is a CUP for alcoholic beverage sales in connection with a business. He stated the fact that conditional uses can be allowed is as implicit a statement as the Board is ever going to get that those uses can be compatible; and the County’s policy is that there are only two uses with which a CUP is incompatible. He stated one of the uses is a school when the school is located within 300 feet of a CUP; and the other is a church if the church is within 300 feet of the CUP. He stated by limiting the policy to incompatibility to schools and churches, the County’s Comprehensive Plan and Land Development Regulations make it clear that there is nothing inherently incompatible between a CUP and the remainder of the uses permitted in the County. He stated the correct measure is what does history and experience tell us about the compatibility of a CUP for alcoholic beverages and the surrounding uses; there is a track record that can be established; and what has been approved in the past is an indicator of what works and what should be approved in the future from the local government’s point of view. He stated it also gives some indication what businesses believe is compatible; if the combination of the CUP and the land adjacent has worked, it is an indication of compatibility; and the process should start with first locating the CUP’s in the County and second, determining how many are located adjacent to residential land uses. He stated third, they should look at how many are located adjacent to residential land uses and have direct access between the CUP property and the adjacent residential uses; and the reason he is identifying these is because he is working toward the situation that they have with Diamond Zone Billiards. He stated fourth, of those with direct access to CUP’s, he would want to know how many of them have direct access to and from the adjacent residential land uses by roadways, which are the sole or limited access point for the adjacent residential uses; and when all that is done, the Board can examine the results and draw its own conclusions. He displayed a map showing the location of 122 CUP’s for alcoholic beverage sales that are within 500 feet or less of residential land uses in the County; advised they are not all CUP’s that have been issued by the County; some have been issued by other local governments; but there are 122 instances where there are a CUP and a residential area side-by-side and apparently surviving. Mr. Bettin stated adding the next layer, of the 122 CUP’s, 101 have direct access to the residential land that surrounds them; and going the next step, of the 101, 39 of them are located within access to a roadway that is a single point or limited access point to the residential neighborhood. He stated that is the situation they have; Duval Street is a single point access to the residential neighborhood where the opponents live; and it is adjacent to a piece of property where a CUP is proposed. He stated in the 39 other instances, there are at least a handful of them that are within County jurisdiction; and those have been determined to be permissible. He stated the conclusions drawn from the history are that CUP’s are frequently located on major roadways; and Diamond Zone is on State Road 3, which is a major roadway. He stated CUP’s are frequently located adjacent to residential uses; and Diamond Zone is seeking a CUP for just that situation. He stated CUP’s are frequently located on land with direct access to the adjacent residential lands, which is the case with Diamond Zone; and in 40% of the cases, that direct access constitutes either a single point or a limited access to the residential area. He stated based on all this, a CUP having the characteristics proposed by Diamond Zone is consistent and compatible with adjacent residential uses because of the history in Brevard County, absent some proof that somehow this residential neighborhood is special and distinct from every other. He stated there are a number of red herrings and straw dogs that have been floated; and foremost is that the State of Florida permits alcoholic beverage licenses, with one for every 7,500 people. He stated the State expects those licenses to be operated; and the license they are dealing with has been in the County since the 1940’s.

Bob Willcox stated he sent a couple of emails to the Board in the last week; and he appreciates the responses. He stated he has been trying to understand how all the information gets accumulated into the formal record and how he might review that information; he thinks he has it now; and he appreciates that; but there is one piece of information he is curious about. He stated he has a letter from Mr. Bettin to County Attorney Scott Knox, dated December 3, 2004; and submitted a copy of the letter to the Board. He stated it says, “Dear Scott, Bob and L. J. Granger have retained me to represent them in the referenced matter. To that end, after conference with Commissioner Pritchard, Ms. Granger told me Commissioner Pritchard was interested in learning more about Snyder and what we thought the applicable law in this area was.” He stated there is also another memorandum from Mr. Bettin to Chairman Pritchard on the same date that says, “As requested, I submit this overview of the issues faced by the County Commission when discharging its quasi-judicial obligations.” He stated he is not sure who met with who at what time; and inquired if Chairman Pritchard is familiar with the letter he is talking about. Chairman Pritchard stated he does not remember the letter, but does recall the meeting. Mr. Willcox inquired who met with whom and when in this regard; with Chairman Pritchard responding Mr. Bettin and Ms. Granger met with him. Mr. Willcox inquired if that occurred before the 3rd; with Chairman Pritchard responding he does not recall the date; and at the time it was not announced that one was representing the other, although it could be implied that way. Mr. Willcox stated he did not find anything in the records about that meeting; with Chairman Pritchard responding he mentioned it to the Board. Mr. Willcox stated he was not there, and did not see it on the record. He stated at the October 7, 2004 public hearing, he presented statistics on alcohol-related issues; and he would like to reiterate them for today’s record. Mr. Willcox stated he has some printouts of the referenced web pages regarding driving under the influence and alcohol-related crimes. He stated according to information from Florida uniform traffic citation statistics in 2003, there were 2,568 total violations for DUI in Brevard County; and common sense will tell that there were many more that were not caught. He stated the Florida Department of Highway Safety and Motor Vehicles reports that in 2003, there were 57 alcohol-related fatalities in Brevard County; the National Highway Traffic Safety Administration stated that in 2003, motor vehicle crashes was the number one cause of death for people from age 3 to 33 years old; and they also report that two in every five people will be involved in an alcohol-related crash at some time in their lives. He stated according to the Bureau of Justice and Statistics, four in ten violent victimizations involve the use of alcohol, and 40% of all crimes, non-violent and violent, are committed under the influence of alcohol; and according to Gallup, 97% of the general driving public feel drinking and driving is a threat to their personal safety and 73% feel it is extremely important in terms of where tax dollars should be spent. He stated clearly alcohol has the potential to impact everyone in a negative or even catastrophic way; and given the sales projections for such a large establishment as Diamond Zone, basic common sense leads one to conclude that there will be a dramatic increase in intoxicated people and impaired drivers in their neighborhood if the CUP is granted. He stated they look to the Commissioners to protect the safety of the children and the quality of life; they have a quiet peaceful community; and a large bar open next to where the children get off the buses, operating until 2:00 a.m. every night, is not compatible with the neighborhood. He stated threats of lawsuits should not deter the Board from making the right decision to keep the neighborhood safe or else every petitioner who is turned down will be hiring a lawyer to threaten the Board until they prevail. He requested the Board do what is right and deny the application.

Mr. Knox stated Mr. Willcox brings up a point that he needs to emphasize for the Board; he is pointing the Board to an email that came to him and a copy of the letter that was done for a client and sent to Commissioner Pritchard; and as the Board knows, sitting as a quasi-judicial board, it is incumbent upon it to disclose any contact outside the hearing with people who have an interest in this proceeding. He stated specifically if a Commissioner heard anything outside the hearing that is not heard tonight, it will be incumbent upon them to disclose what they heard; and both sides will have an opportunity to address that.

Chairman Pritchard stated he has met with representatives of the neighborhood; he has been inundated with emails from both sides of the issue; and everyone has had a fair opportunity to get his ear. He stated he imagines the other Commissioners have been the beneficiary of the same correspondence.

Kathy Tidwell stated she would like to take this opportunity to speak on behalf of her neighborhood; she had to call on many of the Commissioners for different things; and thanked them for allowing her to speak. She stated she teaches for the Brevard County School system; and she is concerned. She stated this is at the entrance to her neighborhood; and it is the only
way into her neighborhood. She stated everyone saw a couple of nice young men tonight who go to her high school and who are Eagle Scouts; and she would like to have that type of thing continue in the future. She stated they are teaching children one standard in school and at home; but if they allow this type of establishment in the neighborhood, it seems to be a double standard. She stated they want their children to grow up and be responsible citizens and taxpayers; they teach them not to smoke or drink and drive; and inquired what are they teaching them by allowing something like this in the neighborhood. She reiterated they are teaching a double standard; it is either yes or no; and it is either allowed or not allowed. She requested the Board consider denying the request because it is a very congested area, it is close to a high school, a church is within a half-mile, and there is a daycare within one-half mile. She stated they have not done all the fact-finding; they already met with the Board before and this was denied; and inquired why are they doing this again.

Carla Dickinson stated she lives in Sunset Groves; and she is a concerned citizen. She stated she is a mother of three children; she does not have a formal statement to make; but there are a couple of questions that were brought to her. She stated Mr. Bettin said the CUP would only be on Suites 101 and 102; and inquired what is the difference as to whether the CUP is attached to one or two suites or the entire building. She stated around December 14, 2004, there was discussion of a proposed crash gate on one of the back exits, which was closest to where one would enter the subdivision; and inquired if that was initially a part of the conditional use permit or not. She inquired if there is going to be a crash gate, when will they be deployed every day, and what will protect them until that time. She inquired if the crash gates are designed for emergency vehicles to crash through to gain access, can an impaired driver crash through to get out. She stated there is a question about stop signs; recently they noticed stop signs were put up on the back side of the property; and that was confusing. She stated as far as property owners’ rights, the current owner is Mr. LaCourt; if that is true, she wants to know how the Grangers qualify for property owner rights; and there are 55 families who live in the neighborhood who are concerned about their own property rights.

Thomas Hobbs stated he is an assistant pastor at Calvary Chapel in Merritt Island, which is one-half mile north of the property that is proposed for change; there is a church, school, and pre-school there; and he also represents East Coast Gymnastics, which is almost directly across the street from the property. He requested the Board deny the zoning request to allow alcohol consumption and use on that property.

Murphy Johnston stated he lives directly behind the building in question; and the traffic has been bad in the last two weeks. He stated they cannot take a left turn out of their street; they are going to have to have a red light or something to direct this traffic; a lot of people go to Kennedy Space Center in the mornings; and someone should come out there and check it early in the morning to see how people have to take a chance of getting killed. He stated it is wrong to have this much traffic plus put the CUP in; Diamond Zone is going to have 500 people sometimes; and it is wrong. He stated the CUP is wrong; he is against it; and he would appreciate the Board voting the right way.

Joe Tidwell stated he lives on Biscayne Drive; and almost everything has been said. He stated he works at the Space Center; the traffic situation is horrendous and very dangerous; and it is growing worse. He stated if the building was back further, it would not be as bad; but it is going to be in close proximity to State Road 3; and it is already causing traffic backup and hazards at that spot. He stated there is no stop light; and for that reason it is not conducive to add liquor to the establishment. He requested the Board deny the request.

Chairman Pritchard inquired if Mr. Tidwell works at the Space Center; with Mr. Tidwell responding yes. Chairman Pritchard inquired if he finds getting out and turning left in the morning is a problem; with Mr. Tidwell responding very much; and it is very dangerous. Chairman Pritchard stated he will ask FDOT to make a study of the intersection because regardless of what happens, there will be more traffic.

Linda Link stated she lives in the Sunset Groves Subdivision; they currently have 61 children in the subdivision, which abuts the property requesting to serve alcoholic beverages for on-premises consumption; and her concern is for the safety and security of the children. She stated there are three different school buses that pick up and drop off students at the corner of Duval and Courtenay Parkway; there are teenagers with driving permits, learning to drive; and there are teenagers who have part-time jobs. She stated some teenagers come home as late as 10:00 p.m.; and they will likely be subjected to drunk drivers utilizing the ingress and egress of two driveways from the billiards hall onto Duval Street, which is the only ingress/egress to the subdivision. She inquired if the children will be safe walking or riding bicycles or scooters, or driving on Duval Street; and stated common sense tells her no. She stated the conditional use permit is incompatible given the danger presented to the children; as a former teacher, she knows they should provide as much safety and security as the law allows; the safety of the children on Duval Street is in the Board’s hands; and requested the Board provide a safe and secure future for the children. She stated Ms. Granger mentioned at an earlier hearing that she has a dream of owning and operating a billiards hall; the fact is Ms. Granger’s dream will affect 61 children in the Sunset Groves development; and requested the Board deny the conditional use permit.

Pam Martin stated she lives on Biscayne Drive; she is a teacher at Lewis Carroll Elementary, where many of the students from the neighborhood attend school; and she is speaking on behalf of the 61 children, including her own son and daughter, who live in Sunset Groves. She stated the Board will be hearing many facts presented by both sides; but the decision to approve or deny the CUP will ultimately be subjective and require the judicious use of common sense. She stated the Board has to determine whether or not the CUP is compatible with the surrounding area, which includes Sunset Groves; and that is not entirely quantifiable. She stated the applicant for the CUP is charged with the burden of proof relating to the effects the CUP will have on a number of different things, including parking, traffic flow, hours, noise, etc.; the facts stated in the CUP application are not entirely complete; and she is present tonight to speak to a few of those. She stated the property in question is located at the corner of the only means of ingress and egress to their homes; on the CUP application, Section 62-1901(c)(2)(a), it says that traffic would not increase in excess of one percent and was determined to not cause a significant impact to traffic flow or an increased hazard to pedestrians based on the total traffic generated on Courtenay Parkway or State Road 3; but what the application does not state is that the traffic on Duval Street will increase by a great deal more, creating safety hazard to pedestrians and other automobiles. Ms. Martin stated the traffic on Duval Street will increase substantially due to vehicles exiting Courtenay Parkway to access the property as well as vehicles leaving the property from the two exits, which both cross over established sidewalk areas utilized and maintained by the residents, including walkways used by students exiting buses. She requested the Board consider that traffic flow will increase substantially on weekends when Courtenay Parkway traffic is at its lowest and area light industrial and retail businesses are closed; and this means the impact on traffic flow will be greater than projected on the CUP application. She stated the applicant has not met the requirements of Section 62-1901 (c)(2)(h), that the hours of use shall be consistent with the use and enjoyment of the properties in the surrounding residential community and that the hours of operation will not adversely affect the use and enjoyment of the residential area; although the developer has created a third entrance directly off Courtenay Parkway into the parking area, 30 to 40% of the parking spots are located behind the complex directly facing Duval Street, creating a safety hazard to pedestrians; and common sense dictates these parking spaces would be utilized in times of high volume. She stated the entrance and exit at the front of the complex would not safely accommodate such a large number of vehicles existing at any one time; the Duval Street exits would be much more convenient; and they assume they were built for that purpose, in spite of assurances that crash gates will be employed. She stated they have failed to meet Section 62-1901 (C)(1)(a), that the proposed use will not result in substantial impact on adjacent and nearby neighborhood properties due to the increase of traffic within the vicinity caused by the conditional use; her neighbors have already addressed the issue in terms of DUI statistics; and to dismiss them as being irrelevant to this situation is naïve and probably negligent. She stated if the facility sells alcohol, it will be purchased and consumed; and individuals who drink and drive endanger themselves and others. She stated according to the traffic records between the years 2000 and 2005, there were 18 vehicular accidents, including one fatality and one DUI directly at the intersection of Duval Street and Courtenay Parkway; and fifteen of the accidents occurred during the hours when the CUP applicant would be open for business. She stated accident records from Hall Road to Grant Road show that 66% of the accidents occurred between the hours of 3:00 p.m. and 10:00 p.m., which would be peak business hours for the applicant; and anyone who has traveled on Courtenay Parkway as KSC traffic is heading south in the afternoons and evenings knows that the roads are already congested and dangerous. She stated it is not a coincidence that the applicant wants to open at the proposed location; the intent is to draw some of this traffic into their doors in order to be profitable; and requested the Board consider how allowing on-premises consumption of alcohol on an already congested and hazardous intersection, with or without deceleration lanes is going to provide for the safety of nearby residents, including children, light industrial business owners, and patrons. She stated the homeowners have been criticized for adopting a “not in my backyard” mentality; however it is their backyards; and as property owners they have the right and obligation to protect their children and residences from poor and potentially dangerous growth management. She stated this is not about preventing the applicants from pursuing their business dream or disliking billiards; it is about how incompatible the CUP is with the surrounding area. She urged the Board to vote to protect the children; and requested the Board deny the application.

Tom Myers stated he is a professional land use planner; and he is representing the homeowners association, which asked him to evaluate the file. He stated he has reviewed the file and has been out to the site; as a planner, he would have no problem supporting all the findings of fact that were proposed in the memo for the November 30, 2004 agenda item; each of those could be supported as valid findings of fact in this case; but he would like to address what he received yesterday. He stated yesterday he got a report from Lawandales Planning addressing a number of locations and trying to show that those locations meant that alcoholic beverages are necessarily compatible with residential land uses; Dogs R Us in Port St. John was one of the locations given; and he is sure Commissioner Scarborough remembers there was a substantial binding development plan from that applicant in order to satisfy the concerns of the neighborhood. He stated the applicant for the request before the Board has made some promises or assertions; but none are in a binding development plan. He stated Ms. Lawandales’ report addresses shopping centers and provides a definition; it says that because they are in a shopping center, that means alcoholic beverages are necessarily compatible; but the Code and common sense indicate that a restaurant and a bar are different; and this kind of applicant has to be treated like a bar. He stated the definition of shopping center in terms of alcoholic beverages means a community shopping center in BU-1 or BU-2 zoning having at least 21,800 square feet of floor area, an anchor retail tenant, and space for other retail uses, and the complex shall be primarily used for retail uses as opposed to professional, medical offices, warehouses, or other uses. He stated a huge portion of the site in question is reserved for office uses and another portion is intended for storage uses of the attendant warehouse; so it is clear that this shopping center and the other shopping centers that Ms. Lawandales compared it to are very different animals. He stated it is clearly not the kind of shopping center that has professional offices; it does not have an anchor tenant; and it does not meet the criteria. He stated he is glad Mr. Bettin talked about the precedent of previous actions; the Board has more of a history of denying applications for alcoholic beverages on North Merritt Island than approving them; and submitted copies of minutes from the May 1995 zoning meeting. He stated at that meeting a parcel on the other side of the road, which is far less residential, approximately a mile north of the proposed site, the old Bechtel Building, was denied for alcoholic beverages; it was proposed to be a restaurant; and the Board determined that alcoholic beverages were inconsistent. He advised in terms of the hours of business, he was in the area last night, and only three businesses were open after 10:00 p.m., so there is real incompatibility there. He stated if the Board intends to approve the application, it should at least limit the hours of operation to 10:00 p.m. to be in character with the rest of North Merritt Island, which is the kind of place where there are honor boxes on groves and where there are more churches than bars.

Galen Link stated he lives on Biscayne Drive; he ran into Chairman Pritchard when he was shopping; they talked a little about the action tonight; and Chairman Pritchard said if the item is not approved, the County would be sued. He stated that kind of threw him off; and he did not know what Chairman Pritchard meant by that. He stated Chairman Pritchard said it would probably be around $500,000; and inquired where did that figure come from. He requested Chairman Pritchard explain and advise whether he has already made up his mind how he is going to vote.

Chairman Pritchard stated he will answer questions when Mr. Link has completed his comments. Mr. Link stated he is done. Chairman Pritchard stated it is true that he ran into Mr. Link while shopping before Christmas; what he said was that the Board operated in a quasi-judicial manner and had to listen to the data and facts; and that if the Board made its decision based on emotion, there would be the opportunity for it to be sued, and that the cost of a lawsuit could run upward of $500,000. He noted he has made that comment to many people; and Mr. Knox reaffirmed it tonight when he said that the Board is listening to fact.

David Campbell stated he lives on Biscayne Drive; and his is probably the closest house to the proposed CUP. He stated it was very upsetting to hear that it was going to come up to vote again; and he heard the statement that the decision was made on emotion rather than fact; but it was the facts that spurred the emotion. He stated the more the applicants communicated what they intended to do, the more nervous he got because he has no doubt it would be a very successful bar. He stated he happens to live right behind the bar; he has a unique situation in that on the south side of his lot is the FP&L lot; and it is his understanding that a wall cannot be put there because there has to be access to those lines. He stated even if they put up a wall, they can still come right through the FP&L lot; and there are parking places on the FP&L lot. He stated he put his house up for sale; this has upset him to the point that he did not want to live there anymore; he had several lookers; and one person even said it was a perfect home; but there was concern about the area. He stated he has a six-bedroom home; anyone who would want to buy the house would be someone with children; and he would not want to buy that house. He stated he is in an awkward situation; he wants to sell his home; but he feels like he is walking on eggshells. He stated he cannot say there is a $1.5 million bar going to be behind the house, it is going to be open until two o’clock every morning, and there is no wall there, but it is a great home. He stated his dad told him never take advice of someone who has nothing to lose from that advice. He stated his future is on the line; he has been looking for land, but cannot even find a piece of land to replace his home; and he does not want to have to go through that if he does not have to. He stated he will not live behind this situation if the Board approves the CUP; and requested the Board not do it.

Rose Dilecce stated she lives on Biscayne Drive, and has two small children, a two-year old and a five-year old. She stated she wants to bring out some points from the Florida Driver’s Handbook, which is given to children when they turn fifteen and they go through Driver’s Ed. She stated it says, “a person’s judgment is the first thing that is affected by drinking an alcoholic beverage. No one can drink alcohol and drive safely, even if they have been driving for many years”; so despite one’s age, according to the handbook, they would be impaired. She stated it says, “alcohol affects those areas of the brain that control judgment and skills; and drinking alcohol is dangerous.” She stated these are the facts that are given in the Florida Driver’s Handbook. She stated her parents were hit by drunk drivers four houses away from where they lived; and in spite of living in a well-to-do community, they were hit just four houses away from where they lived by a drunk driver. She stated the quality of life is at stake; that is part of the Board’s mission statement; and when someone is impaired, they will not know the difference between Suite 101 or 102. She stated she is also representing her church, which is adjacent to the development; the end of Biscayne Drive is the end of the backyard of the church; and submitted a petition from church members requesting the Board deny the application.

Chairman Pritchard inquired if there is anything Ms. Rezanka wants to hand out; with Ms. Rezanka responding yes. Discussion ensued on how to address Chairman Pritchard.

Attorney Kimberly Bonder Rezanka stated she appreciates the Board reviewing the package she submitted last week; she met with Commissioner Carlson; she spoke with Commissioner Scarborough; and she left messages with the rest of the Commissioners except Commissioner Colon. She stated the issue is where was all this information on July 14 when this was submitted to Planning and Zoning; she met with Planning and Zoning numerous times; and there are issues tonight that have not been addressed. She stated the biggest issue is when this becomes a CUP for 10,850 square feet, it changes the entire character of the site plan and becomes a bar; it is a sports bar; and recommended the Board not let the applicants fool it. She stated they call it a sports bar; they are having tournaments; they are having game watching areas and all kinds of things; and they say they are going to have food; but there is no kitchen on the site plan. She stated first they were not having food and now they are. She stated the biggest issue is that it is deficient by at least 40 parking spaces; and Mr. Enos will testify to that. She stated if this is granted a CUP, it does not have enough parking; and the other big issue is it changes the traffic. She stated the ITE manual shows that a substantial number of trips are generated from a drinking place; and ITE Code 936 is in the package. She stated the other thing that is of issue is that the residents had to hire experts; Tom Myers is here who is an expert planner, and his résumé was submitted; and Bob Leichtenberg, who is an expert appraiser is also present, and his résumé will be supplied to the Board. She stated the report that was submitted to the Board should be inadmissible; it deals with appraisal values; it does not deal with market values of actual sales; and requested the Board not consider those appraisals as they are not competent or substantial evidence. She stated this is for Diamond Zone Sports and Billiards Bar; there are four C’s of diamonds; but the four C’s for Diamond Zone are compatibility, character, common sense, and compliance. She stated when she was a prosecutor, they always talked about using common sense and life experiences; and that is what the Board has to do today, especially in the area of impairment. She stated just because some has a drink does not mean they are going to be drunk, but they will likely be impaired; and the Board will hear evidence of that later today. She stated the definition of impaired from the Florida Statutes references normal faculties, including the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies, and in general perform many mental and physical acts of daily life; that is what these people are going to have to do; and they are not going to make the determination that the road does not go to Tropical Trail, but will take the easiest access out. She stated when she was a prosecutor, people drove to avoid roads; she and the Grangers tried to get the Sheriff’s office to come, and they would not; but the DUI Task Force admitted that is common knowledge, but they could not testify to it. She stated people who are impaired do not make rational judgments. She stated people who are going to be exiting will be using Duval Street; they might not go into Sunset Groves, but they may; they will definitely be using Duval Street; and there will be a substantial amount of traffic. She stated there is an issue of protecting school children because of the hours of operation; pointed out the school bus stop on the map; and advised it is right where people will be coming in and out. She stated if people are coming from the south going north, they will have to turn into Duval Street. She stated another issue is the number of people; the website said 300 people; staff said 250 people; according to the Fire Inspector, Scott Morrisette, there is capacity of 548 based on the site plan with the layouts that were submitted, which is a lot of people. Ms. Rezanka stated the applicant has not offered to limit it in any development plan; with 64 people tournaments, guests, spouses, friends, sponsors, and watchers, that is way over 300 people; and there will be more than 300 people in the building watching tournaments for two days at a time. She stated they have not addressed noise; she provided decibel information; the real issue is compatibility to the adjacent area; it is not a track record; and it makes no sense. She stated they are different animals. She requested two additional minutes because of the new information that has been supplied.

Motion by Commissioner Carlson, seconded by Commissioner Scarborough, to provide additional time to Ms. Rezanka. Motion carried and ordered unanimously.

Ms. Rezanka stated what is provided is not a track record or determination; there are pretty pictures; a pretty package was provided; but it is not competent evidence. She stated it tells what the CUP conditions are, what the hours of operation are, and what is near it; and inquired are there other bars or restaurants in the area. She stated what is submitted is not valid; it makes no sense; and it does not tell the specifics that have to be known to make the determination if this specific conditional use is compatible with the adjacent areas. She stated the hours of operation are clearly not consistent or compatible; noise from the parking lot would be 176 feet from the residential property, not 400 feet; and shouted conversation is 90 decibels and a motorcycle is 100 decibels. She stated these are things that are going to happen when people leave in groups at the end of a tournament; whether it is 11:00 p.m., 12:00 p.m., or 1:00 p.m., there is going to be noise; and there is no buffer in the 100 feet on the south edge of the property as that is the FP&L easement. She stated FP&L said they could have a wood fence there; that is fine; but there is still going to be a gate; and there is not going to be a Class-A landscape buffer that they must have between residential and commercial. She stated the parking lot is where the noise is going to come from and it will impact the residents; the activity level is going to go up; and it cannot be compatible. She stated the homeowners have met their burden; and she listed a number of things including the traffic trip generation based on the ITE Code, which is included in the next to last section that she submitted. She stated the Code for a peak p.m. hour allows 168 trips in one hour to and from a location and 123 trips per hour between 4:00 and 6:00 p.m.; and the business park use that was calculated by Randy Owler allows 14 in one hour, peak p.m. She stated what they have given is a different use than what will be there; and what site development has reviewed is different than what will be there. She stated the last item in the package is the April 12, 2004 Planning staff comments; the first is about Policy 12.7 of the Future Land Use Element; and it talks about Brevard County schools. She stated the Policy says, “schools should not be located on major roadways or commercial industrial areas because they should avoid and limit the hazards of traffic and minimize the services from noise, odors, or fumes.” She stated it does not matter if it is a school bus or a school stop, it still involves school children; and protection of children is the supposed intent of Section 62-1609. She stated she worked with Assistant County Attorney Eden Bentley to try to find the intent; they could not get to it; but obviously it is to protect school children from the influences of alcohol and from dangerous traffic from impaired drivers. Ms. Rezanka stated the general and specific standards must be met by the applicant; that has not been done; and not only has trip generation not been met, but because the wrong Code was used, parking calculations are wrong. She stated the screening and buffering have been addressed; there is no Class-A buffer in the last 100 feet in the south; and they have not competently addressed the economic impact on nearby properties, which is the applicant’s burden. She stated she had many more comments about the package that was submitted; but there is really nothing substantially new in it. She stated the traffic engineer is not present; they do not know what her basis was for her determination; and they do not know the experience or resumes of the supposed experts. She stated another issue is that they should have known better; they should have known that the alcoholic CUP could be there; but there is no way an average layperson could know this because of the permitted use versus the conditional use. She stated the minutes that she provided say that approval of a conditional use shall be authorized as an additional use; and that is another terminology. She stated she understands this is the way the County has always done it, but it does not make sense to a layperson; and the people had no idea they could be faced with a 500-capacity bar in their backyard. She requested the Board deny the conditional use.

Chairman Pritchard stated Ms. Rezanka raised a good point about the fence across the FP&L easement; right now there is nothing but an earthen berm; and inquired can anything be placed under the FP&L wires. Zoning Manager Rick Enos responded FP&L will allow a flat surface such as parking to be put there in some instances; FP&L may allow a wood fence, but not a wall; and it is up to FP&L what it will or will not allow. Chairman Pritchard inquired if FP&L will not allow a wall and a wall or buffering is required for PIP usage, how can there even be PIP usage. Interim Assistant County Manager Ed Washburn advised FP&L says people cannot follow the County Ordinances to place something in its easement; he is not sure who the ruling agency is; but he is sure that FP&L can say what goes in there. Chairman Pritchard stated right now there is nothing under the wires on the FP&L easement; it is a wide expanse of 100-plus feet; there are some vehicles and a couple of boats parked under it; there is an earthen berm and a bunch of weeds but no structure; but the issue was raised that there needs to be a structure. He inquired if a structure cannot be allowed, how can they build in PIP; with Mr. Knox responding it is an FP&L easement; FP&L will determine what is and is not allowed there; and generally it does not allow anything under its easement. Chairman Pritchard inquired if FP&L will allow a fence; with Mr. Knox responding he does not know; but he knows FP&L will cut down trees in the easement. Chairman Pritchard inquired how did the whole place get built if it cannot comply with the requirements of having a fence or a buffer; with Mr. Washburn responding if there is a regulation that requires a fence or wall in a certain location, but the owner cannot build there because they cannot block the easement, he is not sure how that pans out in the legal sense.

Commissioner Carlson inquired if staff knew there was an easement that was organized and determined ahead of the site plan approval process; with Mr. Washburn responding yes, they knew the easement was there. Commissioner Carlson inquired if they did not know that utility easement could not be crossed by a fence or wall, given the fact that a residential community
abuts PIP; with Mr. Washburn responding he is sure they did. Commissioner Carlson inquired why would it be approved. Mr. Washburn advised if they cannot meet the regulations as far as the easement goes, he is not sure what the legal ramifications are and whether the County can force someone to put something in an easement that is controlled by someone else. Commissioner Carlson inquired if it would be the County’s charge to explain that to the applicant who is building the development. Interim County Manager Peggy Busacca inquired if there is a berm in the area; with Chairman Pritchard responding yes. Ms. Busacca advised it sounds like staff may have said in lieu of a wall, they could put a berm and vegetate it. Chairman Pritchard stated he has not walked on it, but has observed it from the road; and there appears to be a berm as well as a lot of weeds. Ms. Busacca inquired if there are examples of circumstances where one can put up a buffer in lieu of a wall; with Mr. Washburn responding affirmatively. Mr. Washburn advised it is going to be controlled by FP&L as to what it allows to be put in that 100 feet. Commissioner Carlson stated she knows the Board should not be discussing the site plan, but it has a lot to do with compatibility and all that stuff; if the case was that one could not put a fence or wall across the easement, the applicant should not have gone for the easement in the first place because they could not abide by the performance based zoning that allows PIP to abut residential. She stated they knew the wall was required; and she does not know if there is a waiver in the Code to allow waiver of the wall between the two uses. Mr. Washburn advised there is such a waiver; but the overriding factor is whether the County’s regulation can force the owner of a property that has an easement across it to place something in that easement; and he does not think it can. Chairman Pritchard inquired if the County cannot do that, can it deny building a planned industrial park on the site. He stated he does not want them to build something and then have the County not give a CO because it should have said something at the beginning of the process. Mr. Washburn advised he does not know the answer. Commissioner Pritchard stated Mr. Scales is the contractor on this; with Bob Scales advising he represents the Scales Company and was involved in the approval process. Mr. Scales advised all the questions that have been asked are the same ones they went through; he will address some points when it is his turn; but to answer the question more specifically, they became aware that there was a desire to put a fence in the easement, they contacted FP&L on Friday, and FP&L will allow them to put up a fence. He stated the County required them to go to FP&L as a condition of the site plan review process, and get a letter from FP&L certifying it approved of the site plan, and then the County reviewed the site plan, knowing the FP&L easement was there and that FP&L approved the design and granted approval including the wall to the north of the FP&L easement. He stated FP&L has specific criteria as to heights of the berms and how it accesses its easement, etc., right down to tree heights. Chairman Pritchard inquired how wide is the wooded buffer area that is between the PIP and the neighborhood; with Mr. Scales responding roughly 100 or 160 feet. Chairman Pritchard clarified he is talking about the green space; with Mr. Scales responding that is 129 feet, and there is an additional 25 feet of buffer off the wetland areas, so it is approximately 154 feet. Chairman Pritchard inquired if Mr. Scales plans to build a structure; and requested he point out the area on the map. Mr. Scales stated the initial site plan provided for a wall along the west property line, west of the wetland area; subsequent to that approval, they got a secondary approval that places the wall at the back edge of the parking lot in lieu of the back property line. Chairman Pritchard inquired where does the wall go once it gets past the green space; with Mr. Scales responding the wall terminates at the FP&L easement; and pointed out the area on the map. Mr. Scales advised according to representatives of FP&L, they can put a wooden fence with the company’s permission; there are some grounding and gate requirements; so they can put a fence along the south side of the wetland area and along the west side of the FP&L easement, but they were not able to get a letter to that effect in time for the meeting tonight. Chairman Pritchard inquired if the line shown in red on the south side is a chain link fence; with Mr. Scales responding he is not sure there is any fencing along the south property line. Mr. Scales stated they are basically like uses and not required to have any fencing. Chairman Pritchard advised it is a chain link fence; and inquired if the plan is to come down on the east side of the green space, head west to the property line where the vehicles and boats are parked now, and then south to the chain link fence; with Mr. Scales responding yes. Mr. Scales advised it would be a wooden fence, not a masonry wall.

Commissioner Carlson stated Ms. Rezanka spoke to a Class A landscape buffer. Mr. Scales stated he does not have the landscape plan, so cannot say specifically; but he knows there is landscaping back there and that it was subject to the review of the County and FP&L. He stated both were concurrent on the site plan approval; but he cannot say that it is a Class A buffer. Commissioner Carlson inquired if the case that there is a fence and a Class A landscape buffer designed okay by both staff and the applicant; with Mr. Washburn responding it meets the Ordinance. Commissioner Carlson inquired if that means there is a Class A buffer; with Mr. Washburn responding it would be what FP&L will allow in there in order for them to traverse the easement with FP&L equipment.

Kevin Zari stated he lives on Biscayne Drive and owns a total of one acre just to the west and adjacent to the property being discussed this evening. He stated he is present to discuss location specific compatibility issues and the conditional use permit within the context of zoning, specifically how the establishment with a CUP would fail or succeed in melting into the neighborhood. He stated the Planning and Zoning comments from April 12, 2004 give the definition of “nearby” as any property which, because of the character of the proposed use, lies within the area which may be substantially and adversely impacted by such use; and when he uses that word tonight, it will be with that definition. He stated the graphs shown this evening, which were presented by the other side, show the entire County; but if they only zoom in on the area that is nearby, the Board would clearly see the information he is about to present. He stated there are no other CUP’s for alcoholic beverages issued to businesses for on-premises consumption on nearby or adjacent properties; and the hours of operation and the noise introduced as customers leave at 2:00 a.m. are also inconsistent with the use of nearby and adjacent land, as most of the homeowners are getting up just two or three hours later to go to work. He stated this is not a part of Merritt Island where people go out, stay out late, and drink; it is a quiet neighborhood; and that is true of the residential areas and the surrounding businesses. He stated 42 businesses and one private club were contacted from the Barge Canal up to Hall Road on Courtenay Parkway, which is a distance of one and one-half miles; only four of the businesses sell alcohol; one of the four is a private club, the Moose Lodge, which is located approximately .1 mile south of the property in question; and he does not think the Moose Lodge should be considered because it is not a business. Mr. Zari stated two of the four businesses are gas stations that have no ability for on-premise consumption; they are located approximately a quarter-mile south; and they are the Hess and Shell gas stations. He stated the final business is the Kings Duck Inn, sometimes referred to as KDI; it is one mile north of the property in question on BU-1 zoning with a CUP; however, it is quite far away from Mr. LaCourt’s property and does not meet the definition for nearby that was stated earlier. He stated of the 42 businesses, ten were open past 7:00 p.m.; seven of those ten were open past 9:00 p.m.; and two of the seven were open past 11:00 p.m., the Hess gas station and KDI. He stated the incompatibility with the use of the adjacent nearby properties is a fact; and the applicants have failed to meet the standards set forth in the General Standards of Review, in particular Section 62-1901(c)(1)(b) and Section 62-1901(c)(2)(h). He stated the inability of the applicant to meet these standards led to the denial of Petition Z-0407207 on August 5, 2004 for the Fraternal Order of the Eagles. He stated similarly Z-0408102 was denied on October 19, 2004 by the Board; and there are other cases, but in the interest of time, he only went through the 2004 minutes. He stated he presented the facts and demonstrated just a few ways the applicant failed to meet the standard set forth in the Code; and requested the CUP be denied. He requested the applicant provide them with the percentage of sales and a dollar figure for their monthly income that they will rely upon for alcohol sales. He stated mistakes were made in the past on the map; they do not know when the particular CUP’s were issued and whether it was before or after the subdivision went in; and there is much data that is not being presented on the graphs.

Trace Stephens stated she lives on Biscayne Drive; and she is present to request denial of the CUP for Diamond Zone Billiards. She introduced her daughter, Seashell; and stated her daughter is who she has to travel through the intersection with every day. She stated she would like her daughter to be here for years to come; and submitted paperwork to the Board. She stated putting emotions aside is difficult for her as this is a very emotional issue; she moved here from California; this is the first home she has ever owned with her husband; and Seashell is her first baby, so there is a lot of emotion for her. She stated to put this aside is very difficult; but she is going to attempt to present facts regarding alcohol and its effect on people, and in turn, its effect on their lives. She stated the approval of the CUP will set a precedent; anyone in the area will think they can get a CUP; and that is not a precedent she is for. She stated the property is at the entrance to her neighborhood; there is also a gymnastics school across from it; and the burden has been on them to come before the Board several times. She stated they have been burdened enough; and they have allowed the applicants to prove the compatibility, but they have not. She stated the Board’s mission statement is “to contribute to enhancing and ensuring Brevard’s quality of life today and always.” She stated the CUP will not enhance her quality of life, nor will it enhance the lives of those who have to live backed up to it; and the proof is out there that alcohol kills in all ways possible, pedestrians, bicyclists, drivers, children, the old, the young, the experienced, and the non-experienced. She stated they are present to prevent harm and prove that this type of establishment does not belong in close proximity to their residential community; and two of the three entrances to the property are on their entrance to the neighborhood. Ms. Stephens stated Florida law states that .08 percent blood alcohol content is the legal limit for alcohol to be considered impaired; in 2003, 40 percent of the traffic deaths were related to alcohol consumption; a blood alcohol level of .02 percent affects driving ability and crash likelihood; and the probability of a crash increases significantly at .05 percent. She displayed a chart; and stated .02 percent is less than one drink for a female and less than two drinks for a male; and she does not know many people who go to play pool or go to a bar and do not have a drink. She stated four drinks would put a man and three drinks would put a woman right at the limits for alcohol impairment; and that is very important to point out for the CUP. She stated 77 percent of fatal crashes occurring from midnight to 3:00 a.m. involved alcohol; and the next most dangerous time period is between 9:00 p.m. and midnight, which happen to be the hours of operation for Diamond Zone. She stated 64 percent of fatal crashes in that time frame were alcohol related; that is over half; and drunk driving is the nation’s most frequently committed violent crime, killing someone every 30 minutes.

Chairman Pritchard cautioned Ms. Stephens only has 30 seconds left to speak.

Ms. Stephens stated the speed of alcohol absorption affects the rate at which one becomes drunk; unlike foods, alcohol does not have to be slowly digested; if someone drinks faster than alcohol can be eliminated, the drug accumulates in the body resulting in higher and higher levels of alcohol in the blood. She stated she has more facts that she submitted; and she is not in favor of the CUP.

Everette Stephens stated he is President of the Sunset Groves Homeowners Association; and the Board cannot grant the CUP for the sale of alcohol to Diamond Zone or Anthony LaCourt because the business will sell for on-premises consumption between $68,000 and $84,000 of alcohol per month. He stated statistics show that over half of all Diamond Zone patrons will leave the establishment legally impaired; and for these reasons, the request for CUP will not pass Section 62-1901 (1)(c), (1)(a), and (c)(1)(b) of the conditional use permit application worksheet. He stated those sections cover nuisance activities and compatibility; and the information needed to back up those statements is in the hands of the Board. He stated when they first approached this, one of the things the Board was told was that the residents were most concerned with alcohol consumption and the effects of alcohol; no one talked about those items; and out of concern, he drafted a business plan for Diamond Zone and tried to validate the numbers he had. He stated he contacted 18 different billiards establishments in three different counties; and requested the Commissioners look at the pie charts that were submitted. He stated the first chart talks to the billiard business sales percentages; and of the 18 businesses, averaging out the total amount of alcohol that was sold, the average is 89 percent with 9 percent being in food sales and one percent being in pool table rental and miscellaneous. He stated the next chart shows a Diamond Zone monthly sales breakout; doing a ratio of the numbers of pool tables to profit, he calculated $60,520 in total alcohol sales. He stated the folks at Diamond Zone are saying their total monthly sales will be $95,000; and based on that, the total monthly alcohol sales will be $84,550. He noted the numbers listed in black on the chart are his calculations; and the numbers based on what has been provided by the Diamond Zone are listed in red. He stated the next chart shows alcohol consumption during league play; the information was provided by the bartenders who serve the alcohol at the billiards establishments; and they advised that 59 percent of the folks who play league pool drink one to four drinks during the time they are there, 30 percent drink five or more drinks, and 11 percent have no drinks at all. Mr. Stephens stated the package has blood alcohol charts from the Department of Health and Human Services; and they show clearly that it does not take long before the federal government says that folks’ judgment and driving abilities are impaired. He stated the last chart is from an organization called Serving it Right, which is a bartenders’ responsible beverage service information and certification program; the information is from the Alcohol Service and Your Patrons manual concerning the effects of alcohol; and it says if a person weighs 175 pounds, at the first drink per hour the bartender can continue service, but at the second drink per hour, he is directed to monitor service carefully. He stated the analysis provides a definitive calculation for total sales and on-premises alcohol consumption based on an equal assimilation of data provided by billiards business owners and bartenders; and it is an accurate reflection of what will go on at the entrance to the Sunset Groves community. He reiterated this will go on at the only way in or out of Sunset Groves, right next to a bus stop serviced by numerous school buses dropping off and picking up over 30 children per school day; and if the Board approves the CUP tonight, everyone in the 45 households in Sunset Groves will be subject to the imminent possibility of being injured by an impaired driver leaving the Diamond Zone. He requested the Board deny the request for the CUP.

Chairman Pritchard inquired how long is league play; with Mr. Stephens responding league play is usually between 6:00 p.m. and 11:30 p.m. and most league players play for approximately two hours or slightly longer. Mr. Stephens stated based on responses from billiards business bartenders, 89 percent drink between one and five or more alcoholic beverages; and considering four drinks in two hours, people get impaired. Chairman Pritchard stated the school bus stops between 8:00 a.m. and 9:00 a.m. and between 3:00 p.m. and 4:00 p.m. Mr. Stephens stated he cannot swear to the times, but that seems right. Chairman Pritchard inquired if 7:30 a.m. to 9:00 a.m. and 3:00 p.m. to 4:30 p.m. would be good; with Mr. Stephens responding yes.

Rochelle Lawandales, Lawandales Planning Affiliates, stated she has been a practicing planner in the County for 25 years; she is a member of the American Institute of Certified Planners; and she has a Masters Degree in city and regional planning from Clemson University. She stated the staff report refers to the center as both a commercial center and a shopping center; it says the shopping center is proposed as a four-phase construction project, and that it meets all of the requirements for parking; and that since the shopping center is over 25,000 square feet, it is allowed a 25 percent reduction. She stated she wants to clarify that; and other things will become clear. She displayed a site plan with pictures of the Diamond Zone Sports Billiards establishment; and stated she will address compatibility starting with the buffers and setbacks. She stated PIP zoning only requires a 25-foot setback; and even recovered materials facilities, crematoriums, and other permitted uses within PIP, BU-1, and BU-2 would be appropriate within 25 feet of a residential area without coming through any formal process. She advised the Diamond Zone facility has over 400 feet from the building in question to the nearest back of the residences; there are 175 feet between the actual building and the start of the wetlands; and there are 129 feet between the wetlands and the rear property line, and an additional 100 feet. Ms. Lawandales stated she measured the Government Center Building C today; from end to end it is 205 feet; there would be the equivalent of two such buildings between the corner of the Diamond Zone location and the nearest house, so clearly they factually meet the standard for buffering and setbacks. She stated in addition, a concrete wall will go in at the edge of the parking lot, which blocks any and all glare and lighting; and a further fence has been approved by FP&L that will further block any glare and lighting across the easement. She stated the parking lot lights shine downward; and the walls will keep any glare and lighting out of residents’ yards and properties. She stated right before Biscayne Drive there is a stand of trees that provides an additional buffer to the area; and displayed a photo showing the trees. She stated the photo clearly shows that with the fence there, not only is there additional buffering, but one would not be able to see anything. She stated the next issue is noise; and Mr. Scales will discuss that in greater detail; but in PIP and BU-2, billiard parlors, when they are soundproofed, are allowed as permitted uses. She stated the CUP meets the soundproofing requirements; the construction plans have been approved by the County; and their soundproofing is on record. She stated there will be on-premises security; there will be video cameras inside and out; and they will meet or exceed requirements for maintaining appropriate noise levels. She stated there are additional documents in the packet showing they have exceeded any security formats for any other approved CUP in the County. She stated parking has become an issue; pool halls require a greater standard at 1-to-150; drinking establishments require 1-to-65; and the site plan meets or exceeds all parking requirements. She stated this will be a shared facility; the reason in shopping centers, the County allows for a 25 percent reduction is because some things are open at one time while others are open at other times; so there will be ample parking on the site to accommodate all uses. She stated the Shuttle, KDI, the bar at Mr. Ni’s, and the Moose Lodge are open until 2:00 a.m. She stated Pizza Mia, which is not yet approved by the Board, but has been recommended for approval by the North Merritt Island Homeowners’ Association will be before the Board for a CUP. She stated traffic has been addressed; the requirements that were referred to by Ms. Rezanka were from an earlier version of the ITE manual; and the actual count is 1,134 for p.m. peak trips.

Ray Scarpa stated he was not aware that the bar was still open at Mr. Ni’s. He stated he lives on Biscayne Drive; and submitted paperwork to the Board. He stated he developed a spreadsheet with the help of some of his neighbors containing the addresses, telephone numbers, and hours of operation of all active businesses from the Barge Canal to Hall Road; and the information was gathered using a combination of telephone calls, telephone directory, and the business locations. He stated the three establishments that serve alcohol on the premises are shown in bold blue lettering; one is the Moose Lodge, which is a private club located a half-mile south of Sunset Groves, across a four-lane divided highway on the east side of Courtenay Parkway; another is King’s Duck Inn, which is located 1.1 miles north of Sunset Groves on the west side of Courtenay Parkway; and Shuttle’s Bar and Grill is located 3.6 miles north of Sunset Groves on the east side of Courtenay Parkway. He stated Shuttles is past Hall Road, but is added for reference because it serves alcohol. He stated he thought Mr. Ni’s was closed; he stands corrected; and Pizza Mia is also closed after denial of its request for a CUP. He stated the chart he displayed clearly shows that Diamond Zone’s operating hours are not consistent with the surrounding businesses. He advised the School Board will not move the bus stop from the corner; he wrote a letter inquiring about it; he also wrote a letter inquiring about the corner of Duval Street and Courtenay Parkway; and there is an email included in the package from Mike Connors of the Brevard County School District Transportation Office attesting to the facts enclosed in the package he submitted. Mr. Scarpa stated the children are getting off the bus during the Diamond Zone’s proposed operating hours; alcohol will be served during those hours; and impaired drivers are a major concern to the residents. Mr. Scarpa stated the Public School Fire Protection Bureau’s fire inspector advises the Diamond Zone can accommodate 548 patrons in its 10,850 square-foot facility; and that is a lot of people. He inquired if there are ample parking spaces; and stated some people say there are while others say there are not. He inquired with that many people drinking, if the parking lot does fill up, where are they going to park, and will it be on the side of the road, on Duval Street, on people’s lawns, on the median of Courtenay Parkway, or anywhere they can find a spot. He stated KDI has that problem; and on a busy night people are parked in the median on Courtenay Parkway. He stated that many people will present a parking problem as well as excess noise when they depart after the 2:00 a.m. closing time; and they say they are going to be open seven days a week until 2:00 a.m., although that could be subject to change. He stated Section 62-1901(c)(2)(h) has been referenced several times already. He stated taking into account the school bus stop, noise issues, safety issues, parking issues, the impact on the quality of life in the subdivision, and the disruption of peace and tranquility of their family life, they feel it adds up to incompatibility with the neighborhood; and requested the Board deny the CUP request.

Barbara Mennillo stated she lives on Biscayne Drive; and she is very opposed to the billiard room serving alcohol in the direct path of her neighborhood. She stated there is only one street coming in and out; and they are now going to have to watch as they go in and out for people who may be impaired. She stated she works at the Space Center; she comes down State Road 3 every day; she passes King’s Duck Inn and sees the people lined up all over the road, usually on Thursday or Friday night; people are running across the street; and the other night she almost hit somebody trying to get from the bar to their car. She stated there is not enough parking; people are going to start parking on the neighborhood street; the kids are out playing; and she has to travel in and out of there all the time. She stated her granddaughter lives with her and plays there; she also goes to school there; she has not caught the bus yet, but probably will in the upcoming year; and she is very concerned about this. She stated this is hurting property values; Mr. Campbell has a beautiful home; he has wonderful children there; and he has to move because he cannot stand to live like this, but cannot sell his house. She stated people have looked at the house, but do not want to live by a bar; and she cannot blame them because they moved there for a nice tranquil neighborhood. She stated Mr. Bettin said there are a lot of bars next to neighborhoods; and inquired if those bars were there before the neighborhoods were built or were they put in after. She stated this bar was not there when they moved to the neighborhood; it was a nice area, which is why they built there; and that is why they sunk all their money into their place. She stated every penny they earn is in their home; and they are hoping when they decide to sell and get something smaller, that they can sell their home; but this is going to hurt it, especially with only one street in and out and having to go by the Diamond Zone every day. She stated even with the construction right now, there has been trouble getting in and out; and she cannot imagine what is going to happen when there are 500 people there. Ms. Mennillo inquired where are they going to park and how are they going to get in and out of the neighborhood. She reiterated it is a beautiful neighborhood; there are wonderful people living there; there is a lot of nature there; and they would like to keep it that way. She stated they would like to protect the 61 children who live there; she has another grandchild on the way who will be staying there; and she looks out for the children.

Chairman Pritchard inquired if Ms. Mennillo drove by KDI on Thursday; with Ms. Mennillo responding yes. Chairman Pritchard inquired if she saw all the cars; with Ms. Mennillo responding yes. Chairman Pritchard advised that was a party for the astronauts.

Don Mennillo stated he lives on Biscayne Drive and has been in law enforcement since 1974; and he is a certified intoxilizer operator and also a traffic homicide investigator. He stated he has investigated a lot of accidents involving alcohol; State Road 3 has a speed limit of 50 mph; and his wife’s cousin was turning into their street a few years ago, and was hit by a car driving 50 mph. He stated he was hit in the rear, and it did not put him in the hospital, but it hurt him pretty good. He stated he works at the Space Center; he has been in the County 16 years; and he has investigated a lot of DUI’s. He stated the majority of the DUI arrests have been people driving north on State Road 3; and they run the gate driving at a high speed, and drive into the ditch as they are coming from the Merritt Island area. He stated this rezoning is just going to contribute to more DUI people driving on State Road 3 at a high rate of speed; and when alcohol and speed are mixed, it results in some bad accidents. He requested the Board turn down the CUP request.

An unidentified speaker inquired how many more speakers are scheduled for this issue; with Chairman Pritchard responding a dozen at least. Chairman Pritchard advised the Board is going to take a 15-minute break at 8:30 p.m.

Marie Ricouard stated she lives on Biscayne Drive; and she is for denial of the CUP. She stated this is a bad location for that type of place; if it was not near residential, it would be fine; but they happen to live there 24-hours a day, seven days a week. She stated the people at the Diamond Zone are going to be there occasionally, but are going to want to party and do their thing, which is fine; but they can go home to their nice quiet homes and go to sleep at their convenience while this is being pushed on her neighborhood because they cannot pick up their houses and go. She stated she was outside washing her car; a white Buick came down the street, looked around and decided it could not get out; the car tried to make a U-turn in front of her house but could not make it; so they backed up, ran over her grass, turned around, and went out. She stated there is one way in and one way out; people realize when they get in there that there is nowhere to go; and they cannot make a complete U-turn. She stated she is not sure that a wooden fence is going to be a buffer; the FP&L lot has no trees there; and it is just weeds that are four-feet tall. She stated that is where they need the buffer because that is where Diamond Zone is; and that is the whole problem. She stated she does not understand Mr. Bettin; he said there were residential houses and stuff with CUP’s; and inquired if that was for alcohol; with Chairman Pritchard responding yes. She stated if she lived there, it would not have been done because her family is way more important. Ms. Ricouard stated it is not KDI or Shuttle’s as there are no houses that are directly affected by them. She stated the security system is going to protect the Diamond Zone; but it is not going to protect the neighborhood. She stated it is not just the bus stop; there are children who ride their bikes; they are going to be home all summer while their parents are going to be working; with or without permission, they are going to go up there and are going to be riding around; and intoxicated drivers are not going to see a little kid on a bike. She stated they get emotional, but that is their right as parents; and alcohol does not fit in with their neighborhood. She stated they said it was 207 parking spaces; and inquired if it needs to be 251 spaces.

Mr. Enos advised he had discussions with staff who were involved in the site plan review process; when if was first reviewed last year, the site plan included the facility but without alcohol; and he was told today that a different parking standard would be applied to the facility with alcohol. He noted he does not review site plans, but he did a quick analysis; and it is apparent to him, based on what was described to him, that the facility would require more parking than what it has now if the facility has alcohol. He advised that is not necessarily a deal killer because site plans can be amended; and if the CUP is approved, it may require an amendment to the site plan. He stated he does not know how far along this project is; he does not believe all the buildings have been built; and he does not know if the construction is so far along and the site plan so far built out that the parking layout could not be amended. He reiterated those are site plan issues, and they generally occur administratively outside of the zoning process.

Commissioner Voltz stated if the Board approves the CUP, they may get turned down at the site plan approval point; so regardless of what the Board does, if they do not meet the parking, it is not going to be any good. Mr. Enos advised if the CUP were to be approved and alcohol was then introduced into the site plan, it would require an amendment to the site plan and additional parking, which may require a major redesign of the entire center, but is doable. Commissioner Voltz stated at the same time if they cannot meet the parking requirements, the whole CUP process would go away; with Mr. Enos responding that is correct. Mr. Enos stated if they could not redesign the parking lot to meet County standards, then something would have to give, whether it be the alcohol use or some other use, but there are choices.

Chairman Pritchard stated this is a new wrinkle; he knows Ms. Lawandales has been involved with this since the beginning; and requested she respond. Ms. Lawandales stated she and Bob Scales worked on this issue and Mr. Scales has some tables, so he will address the issue. She stated what will happen is where some uses were designated as restaurant or retail, those uses will change; the warehouse will not have any real parking issues because it is tied to the tile place; and Mr. Scales will go through the various scenarios.

Bob Scales stated he wants to clarify what Mr. Enos said in regard to the parking; and he was involved in the design of the site, and is very familiar with it. He stated the Land Development Code provides for pool halls; the requirements for a pool hall are one space per 150 square feet; and a drinking establishment, which is a different definition, requires one space per 65 square feet. He stated as the site plan was approved, they were required to have 173 spaces; they have provided 207 spaces; and that assumes a pool hall with one space per 150 square feet. Mr. Scales stated as it is currently used with the warehouse in phase three, and anticipating a restaurant use in phase one, they would be required to have 156 spaces; and they still have 207. He stated if they drop that back to the worst case scenario where the pool hall is deemed a drinking establishment by virtue of the Land Development Code and the restaurant, which is currently not planned, is eliminated in phase one, they would be required have 204 spaces and they have provided 207. He stated in several instances people have said the fire department has said the building has an occupancy of 548 people; that calculation was used to determine egress and life safety issues within the building; but it is not used for parking standards anywhere. He stated using an egress standard for a condominium, such as the six-unit condominium they are finishing in Vero Beach, would mean that the building would have an occupancy of 50 people; and they certainly do not have 50 spaces, but have 12. He stated a 3,000 square-foot retail establishment would have, based on the egress calculations the fire department uses, 100 people, which doing a straight line interpretation would mean 100 spaces. He stated it is apples and oranges; the fire department’s calculations are used for egress and life safety; and the fire department reviewed the site plan and approved it in the first go-around.

Commissioner Colon inquired if Mr. Scales said 204 parking spaces for a restaurant; with Mr. Scales responding yes. Commissioner Colon stated alcohol changes everything and the scenario would be different; and inquired how many spaces would be required. Mr. Scales stated assuming the pool hall was looked at as a drinking establishment and they assigned 65 square feet per parking space to the 10,850 square feet, taking out the 25 percent reduction, they are required to have 204 spaces on the overall site, and they have 207. He advised that is the worst case scenario; they still comply; and in fact, they have a surplus of parking spaces. Commissioner Colon inquired if Mr. Scales is present because of the worst case scenario; with Mr. Scales responding affirmatively. Mr. Scales stated the approved scenario is a little different; there are four different scenarios, including worst case, current case, and approved case; and in all cases, there is surplus parking. Commissioner Colon inquired when they were talking about the fire department, was that based on the original application, which was just for a regular business as opposed to a CUP for alcohol. Mr. Scales responded he is not sure; he does not recall addressing whether or not the pool hall had alcohol; it has always been addressed as a pool hall; and he cannot speak for whether there was a question about it being a drinking establishment or not. He stated in either event, they provided surplus parking in order to make sure they complied across the board; and if someone wants to come in and put in a restaurant, it gives some flexibility to the site. Commissioner Colon stated the discussion they had previously in prior meetings was in regard to the fact that they could not understand why they were even at this point since there had been approval of the actual site; then the question was why now and why would the building go first; and it was like the chicken before the egg, trying to figure that out. She stated it is appropriate to ask that question because the County seemed to be comfortable with the actual building; that is how it came in; and one of the comments made in the past was that it was based on ignorance; and inquired ignorance on whose part. Commissioner Colon inquired if Mr. Scales was present for that; with Mr. Scales responding he may have been; it is a good question; and one of the problems is buildings that are designed and permitted for one use, but the use changes. Mr. Scales stated they might design a building to be purely retail; then they come in and make it a restaurant; and that is a different use with different parking capacities. He stated when they design a site, they try to take the best scenario or the most anticipated scenario for the use of the buildings and then add a surplus; and in this case, the surplus they added accounts for even the worst case definition, in terms of the whole pool hall being a drinking establishment. He stated the Land Development Code anticipated and understands that many square feet of a pool hall are taken up by pool tables, players, etc.; and that is why the Land Development Code allows 150 square feet per space in lieu of 65. He stated arguably one could site five or six people where a pool table would sit if the establishment was strictly a bar. Commissioner Colon stated she is concerned about the comment Mr. Scales made when this came to County staff and the sites that were presented to staff; and inquired at that time did Mr. Scales know what kind of business was coming in. She stated Mr. Scales is saying “worst case scenario”, but it looks like he already planned for it. Mr. Scales responded they anticipated a pool hall; they anticipated a certain square footage for the pool hall; but they also allowed in the initial design for a restaurant. He stated they assumed taking a couple of the retail spaces and making them a restaurant; they had a scenario where everything was retail; another where there was a pool hall; and the site plan reflects what they anticipated at that time. He stated subsequent to that time, they now know that one of the buildings that they anticipated would be retail will be a warehouse, which is a much less intensive use; currently there is no restaurant planned; and the phase one building will be all retail, which is a much less intensive use. Commissioner Colon inquired at that point did they know they were interested in the CUP for alcohol or was that not even considered at that time. Mr. Scales stated he cannot speak for the anticipation of a CUP; when they designed the site, they looked at the County’s criteria for a pool hall, which said they had to allocate at least 150 square feet per space for that area; and he was not involved in the anticipation of the CUP. He stated he would rather stick to what he knows; and these are the calculations. Commissioner Colon stated Mr. Scales has on the record that, to the best of his ability, there was no anticipation for the CUP. Mr. Scales stated he cannot say that he knew the CUP was going to be an issue; he was cognizant that a pool hall was a CUP; but he was not cognizant that this was going to be a long involved process.

Robert Reijm stated he lives on Biscayne Drive; he came from Canada; he bought his house in December; and to his surprise, they are going to get a pool hall, which is not what he bargained for. He stated he strongly objects to the pool hall; he bought a house in a nice quiet neighborhood; and he does not want it disturbed by a pool hall for four reasons. He stated he has five children who take the bus every day; every day they will have to go through the zone that could be affected by impaired people; and he believes that the increased traffic by people who are affected by alcohol will put them at risk. He stated that may be emotional, but it is also common sense. He stated the second reason is because the increase in traffic will create more crashes at the intersection of State Road 3; he works at the Cape; and it is extremely busy in the morning. He stated in the afternoon traffic is already backed up to the intersection of Duval Street as it is without adding people who are going to be drinking in this bar; and he does not think they need that many people right there. He stated it is a dangerous situation; they do not have any exit roads at the Duval intersection as it is; it is dangerous to even get off to get to Duval Street; and there are people who are usually pushing behind because they do not want to slow down, so it will certainly cause more accidents at the intersection. Mr. Reijm stated that is exactly the same point where his kids are going to be dropped off every afternoon and picked up every morning. He stated the third thing is the additional noise will compromise the standard of living that they all enjoy; every day the bar will be open until 2:00 a.m. or 2:30 a.m.; and that will lower the standard of living. He stated the last thing is drunk drivers will be coming into their neighborhood creating dangerous situations for everybody; and it has already been mentioned that drunk drivers will try to take the back roads so as not to get caught. He stated he is living on a cul-de-sac; a lot of people turn into there thinking they can get to Tropical Trail, but they cannot; and drunk drivers will try to do that as well. He stated it should be perfectly clear to the Board that the pool hall is not good in this location; and reiterated his speech was emotional, but it is common sense.

The meeting recessed at 8:43 p.m. and reconvened at 9:00 p.m.

Commissioner Colon stated she has spoken to some of the people who are present for Item V.A, the public hearing to consider an ordinance amending Chapter 62, Section 62-2117, Parking, Locating and Storage of Recreational Vehicles, Recreational Equipment, Commercial Vehicles, Heavy Equipment, and Motor Vehicles; there are 13 cards left on the current item; and that means the current item will not be finished until possibly 11:00 p.m. She suggested the item be rescheduled.

Commissioner Scarborough stated out of courtesy to the people, if the Board does that, the item should be given a time certain.

Chairman Pritchard stated he does not have a problem with that. He inquired if that is the desire of the audience; with several unidentified speakers indicating desire to reschedule the item. Interim County Manager Peggy Busacca advised they will probably want an evening meeting; and the Board does not have another evening meeting scheduled except for zoning meetings. Commissioner Voltz stated the Board could schedule a meeting for the item. Chairman Pritchard stated if they want an evening meeting, one will have to be scheduled. Commissioner Scarborough advised he is not comfortable scheduling without having his calendar; and requested staff obtain a list of those who are present so they can be contacted.

An unidentified speaker inquired what is the difference in a daytime meeting and a night meeting; with Chairman Pritchard responding just the time. The speaker inquired if it is necessary to have a day meeting and a night meeting for something to be passed; with Chairman Pritchard responding no. Commissioner Colon advised during zoning meetings, the Board does not give time certains. Chairman Pritchard stated they will figure out when they can hold the evening meeting; staff has the cards that have been submitted; it will be advertised; and staff will notify those who have put in cards. Commissioner Scarborough inquired if anyone objects to coming to a daytime meeting; with several people raising their hands. Chairman Pritchard apologized to Sharon Savastio who made the request earlier.

County Attorney Scott Knox advised the item will have to be re-advertised.

PUBLIC HEARING, RE: REZONING REQUEST OF ANTHONY LACOURT (DIAMOND
ZONE BILLIARD PARLOR) (CONTINUED)

Mary Hillberg stated she lives on Sierra Drive in Merritt Island; and submitted a letter written by one of the previous speakers. She stated the letter is dated February 14, 2005; it is to Mr. LaCourt; and it is from St. Johns River Water Management District, advising they were not permitted for work in the wetlands, and that from the inspection, it was found they impact five to ten feet of wetlands. She stated according to the letter, they have fifteen days to tell them what they were going to do about it. She stated she represents the North Merritt Island Homeowners’ Association, which has nearly 500 members from the Barge Canal, north to Kennedy Space Center; and they unanimously and strongly support their neighbors in the Sunset Groves community in requesting the Board deny the request.

Bill Hillberg stated he lives on Sierra Drive, and does not represent anyone; and he is present to support his neighbors to the immediate south. He stated he is disappointed that they are back again tonight; he was at the previous meeting and thought the decision had been made based on the facts; and then he was again disappointed when he saw a tape of the December 14, 2004 meeting and heard Chairman Pritchard mention the issue would be revisited and a decision would be made based on fact and not emotion. He stated he agrees they need facts; and he thinks the Board heard a lot of facts tonight; but he does not know how an intelligent decision can be made without a little bit of feelings being put with it. He stated it impresses him that the whole Sunset Groves neighborhood has gotten together to request the denial. He stated the people who are requesting the CUP keep bringing up compatibility; he thinks compatibility is a big issue; and he does not see any compatibility with the outcry from the residents of Sunset Groves. He stated he hopes the Board takes into consideration their feelings along with the facts it has been given. He stated there seems to be a lot of waffling going on in the eleventh hour and decisions to get this under the wire to make it a legal issue; and perhaps that can be considered also.

Barb Benn stated she also lives on Sierra Drive; this evening there has been a lot of emotion; for something factual, perhaps it could have been reduced a little; but the Board let it in. She stated it was hard for her to learn that the issue came up again for discussion and presentation of facts; having followed the situation from the beginning, she is aware of all the emotion that was involved in the first decision to deny the CUP; taking emotion out of the issue is the only way to proceed fairly and applauded the Board for revisiting this important matter. Ms. Benn stated since she drives past the location daily, it is evident the project as a whole is a wonderful addition to the area; what was previously just a mess of old trees and high weeds is now an elevated level sidewalk, an attractive building, and amenities such as landscaping that is being installed; and it is truly to be an asset to the community and a welcome addition to the majority of the North Merritt Island residents, contrary to what the Board just heard. She stated no survey was ever taken by any large majority of members or she would have received one as she is a member of the North Merritt Island Homeowners Association, so it is a limited number of people who were referenced. She stated they look forward to all that the shopping plaza brings, including the billiards sports center; building this plaza has made the area considerably safer for nearby children who board the bus, even though not that many do; and they have brought up before that there are not many children. She stated it was woods before; being open now makes it safer; and it is people friendly now. She stated if a child was in trouble, he or she could holler and someone would respond; and prior to this, there was nothing but woods for someone to jump out of. She stated she knows personally that the owners and prospective tenants have done everything possible to comply with the regulations and appease and quell the neighbors who live closest to the location who have voiced opposition. She stated from every meeting she and other community leaders have been involved in with the Sunset Groves residents, she believes their fears to be without proof or foundation; and recommended they relax and look equally forward to the fine, responsible, considerate Merritt Island residents opening and operating their business there. She stated they have been made to wait a long unreasonable and financially burdensome amount of time; they have done everything but kiss the children of the complainants; and if they knew them, they would probably do that too. She recommended moving forward in a positive direction and allowing the business effort to be completed without further restraints; and she is confident that all will be fine for the community in a short period of time. She inquired if all five Commissioners have been to the site.

Commissioner Scarborough responded Rene Davis from his office visited the site recently. Commissioner Voltz stated she was at the site Saturday. Commissioner Carlson stated she has not been to the site recently. Chairman Pritchard advised he visited the site today. Commissioner Colon advised she went to the site three weeks ago.

Ms. Benn stated there is at least one vacant lot just behind the Diamond Zone portion of the building; quite a few vehicles such as boats, etc. are on the vacant lot; but when one drives by, they see the beautiful building under construction and the landscaping, and through that, from State Road 3 heading north, it is possible to see the boats and all the other messy things. She stated perhaps this has something to do with the six-bedroom house not selling; it is very close to that; and she would not want it next to her. She stated another thing that is important, and she is only being factual not derogatory, is that one would get the impression that none of the residents drink; but she knows that is not true. She stated the Sunset Groves residents drink
like some of the other people present tonight; they and their sons get speeding tickets; so to present that argument is not factual. She requested the Board approve the CUP so this matter can be put to rest once and for all.

Commissioner Voltz stated she has a letter from Barbara Bradley Benn; and she wants to be sure she has the right person; with Ms. Benn responding she is one and the same. Commissioner Voltz inquired if Ms. Benn is a member of the North Merritt Island Homeowners’ Association; with Ms. Benn responding she and her husband are paid members, so they have a vote if something comes up, but she is no longer on the board. Ms. Benn noted she recently quit the board after many active years; and advised there has been no survey of any sort with the residents. Commissioner Voltz stated the letter from Ms. Benn says, “I was glad to have the opportunity to do so because I had been in attendance a couple weeks before at the North Merritt island Board meeting chaired by Ms. Hillberg whereby she mentioned that she had received a call from Ms. Granger asking to be allowed to speak to the residents at the meeting there. Ms. Hillberg denied Ms. Granger, saying that they were voting against the CUP being approved, and therefore, it served no purpose.” Ms. Benn stated that is absolutely correct; Chairman Pritchard was kind enough to create a forum so they could be heard; and he invited Ms. Hillberg to that meeting. Commissioner Voltz inquired had they already had a meeting or was she speaking to the board before they had a meeting; with Ms. Benn responding she has an opinion, but Commissioner Voltz will have to ask Ms. Hillberg that, in all fairness. Ms. Benn advised there was no survey taken.

Ms. Hillberg stated she is not understanding what that was; and requested it be read again. Commissioner Voltz stated it was a letter and read aloud, “I took the opportunity afforded me by District 2, Ron Pritchard to meet with the Grangers, Bob Scales, and Ms. Stephens, Ms. Phillips, and the new president of the North Merritt Island Homeowner’s Association, Mary Hillberg, several weeks ago. Also present was Rose Lyon, the Commissioner ‘s Aide. I was glad to have the opportunity to do so, because I had been in attendance a couple weeks before at a board meeting chaired by Ms. Hillberg whereby she mentioned that she had received a call from Ms. Granger asking to be allowed to speak to the residents at a meeting there. And Ms. Hillberg denied Ms. Granger saying that they were voting against the CUP being approved, and therefore, it served no purpose.” She stated she is wondering if Ms. Hillberg spoke for the whole board. Ms. Hillberg responded she does not know the date of the letter, but it was well before the first board meeting on the subject. Commissioner Voltz advised the letter is not dated. Ms. Hillberg stated she does not know if Chairman Pritchard or Mr. Stephens have memory of the date of that. Chairman Pritchard inquired if she is asking about the meeting held In his office; with Ms. Hillberg responding yes. Chairman Pritchard advised he does not remember the date; with Ms. Hillberg responding it was well before the first time the Board turned this down. Ms. Hillberg stated Ms. Granger did call her after the board had just had a meeting; it was three or four months before this item came to the Board of County Commissioners; and Mr. Granger wanted an emergency North Merritt Island meeting so he could discuss it with the board; but she told him the group already had its meeting about the zoning issues, his issue had come up, and she would not call an emergency meeting. She stated she did call everyone and talk to them about it; and the majority of the board agreed that this was not an issue that it needed to have an emergency meeting about. Commissioner Voltz inquired if she made the statement before or after they had the meeting. Ms. Hillberg inquired made the statement of what. Commissioner Voltz stated Ms. Granger asked to be allowed to speak to the residents at a meeting there; and Ms. Hillberg denied Ms. Granger saying they were voting against the CUP; with Ms. Hillberg responding that is absolutely incorrect. Ms. Benn stated the information she gave the Board should be in the minutes; she was on the North Merritt Island board at that time, but has since quit; and that is what was said.

Commissioner Colon stated the Chairman mentioned how well and professional everyone has carried themselves today; and to the best of their ability, they have mentioned the facts; but at one of the meetings, right after someone spoke, the meeting went wild. She stated she wanted to remind everyone that they are doing well thus far; it is 9:20 p.m. and everyone is getting tired; and recommended everyone stay focused and not let anything stir the group up.

Stephen Townsend stated he lives on Biscayne Drive; they have a stenographer going wide open; they have professional staff hired on both sides; they have lawyers and professional witnesses; they have turned this political process into a courtroom doing the O. J. trial; and he does not have a lot nice to say about that. He stated it is not right to spend this kind of money and do all that has been done on both sides of this issue for a County Commission meeting; the Board is not the executive, judicial, and legislative branches of local government; and he may be wrong, but that is how he feels.

Commissioner Scarborough stated Mr. Townsend is wrong; the attorney has advised they are in a quasi-judicial mode; many times the Board has a great deal of discretion; but within this context, it is sitting very much as a judicial body with certain rules it has to follow. He stated the having of attorneys and expert witnesses is much encouraged by the courts, which will review this if a person wishes to appeal it; and many times these cases are appealed. He stated that is what the Board has been advised, not only by its attorney, but by court cases and everyone else involved. Mr. Townsend stated it does feel like a courtroom; with Commissioner Scarborough responding unfortunately this is the way the Board has been told in Florida it is supposed to operate in this forum. Commissioner Scarborough stated the Board did not create the rules; but there are rules.

Mr. Townsend stated the Board has been shown geographic maps, where things are, where the CUP’s might be, and how far away they are; and requested the Board forget all that for a minute. He stated there are three churches, two private schools, and two dance studios that are all closer than everything that has been brought up tonight, but very little was said about them. He stated those things should weigh heavier in the Board’s decisions than the other things that others testified to. He stated these things are nearby; the CUP would have a negative impact on them; and there are a lot of children there. He stated in terms of late night noise, people will be firing up their Harleys at 2:00 a.m. and leaving down Courtenay Parkway; and he has nothing against motorcycle riders, but the pipes make noise. He stated he will be trying to sleep; he has to get up to go to work to support his family; he does not want to be woke up at 2:00 a.m.; and none of his neighbors want it either. He stated there are 61 children in the neighborhood; he has two two-year olds himself; those 61 children cannot stand up and tell the Board they do not want this in their neighborhood; but he is present to talk for them; and he is saying they do not want it. Mr. Townsend stated he does not want it in the neighborhood; and his neighbors do not want it either because it is incompatible. He stated in terms of the school bus stop, he has spoken to the School Board himself; the school bus stop is going to stay right where it is; and that is not good. He stated it is not appropriate to have a bar right where there are children getting on and off a school bus. He stated none of the nearby businesses are open late; late night noise is an issue; the CUP enables the business to be open until 2:00 a.m.; and otherwise it will not be open that late because alcohol is the enabler. He stated Chairman Pritchard used to say he was no prude; he is not saying people in his neighborhood might not drink; but most of them are responsible enough not to get out on the road and drive to an establishment to do it. He stated the CUP does not fit; it is not compatible; there are 61 children who cannot talk to the Board; and everyone is accountable. He reiterated he has two children; if something were to happen to them because the CUP went in and he did not talk to the Board about it, he would feel bad about himself; and he is here for the children.

Greta Ferebee commented on the pronunciation of her name; and stated she lives on Biscayne Drive and is a dues-paying member of the Sunset Groves Homeowner’s Association. She stated she supports her neighborhood and the views of her neighbors; and she wants the Board to make the common sense decision to deny the CUP for the Diamond Zone as it is not compatible with Sunset Groves. She stated the decision will affect her neighborhood by approximately ten million-plus dollars, as she was told by Mr. Leichtenberg who is present tonight to speak as an appraiser; that is how much money she and her neighbors have invested in their homes; and they are really vested there. She stated churches do not find alcohol attractive; and property owners and buyers do not either. She stated her husband rides his bicycle everywhere on Merritt Island; she worries; and she does not want him out there with alcohol in the area as it is very dangerous. She stated she walks some although she cannot walk very well; she cannot walk if she is drinking alcohol; and she does not try, nor does she try to drive. She stated people who go to a bar should have a designated driver; but nobody is going to police that; so there will be people driving who are prepared to drive drunk or under the influence. She stated there are a lot of children in the neighborhood; lately they have gotten scooters; they are annoying and she does not like them; but she does not want them to be hit by a car. She stated she does not want the children on her street to get hurt; she is afraid; none of them are replaceable; they are all priceless; and every child in the neighborhood is beautiful. She requested the Board deny the CUP and protect the neighbors’ moral environment, traffic safety, property values, and quality of life.

Phillip Meade stated he lives on Biscayne Drive; and primarily he is here to support the views of his subdivision and neighbors. He stated he has heard the term “quasi-judicial” at least a dozen times tonight; he is not really sure what it means; and it seems that if this was really a judicial hearing, there would be a lot more facts instead of opinions. He stated details are missing from exactly what is involved in the subdivisions; a map that shows all of the County is supposed to indicate that alcohol is sold somewhere on Merritt Island; and he does not understand why safety is not consider an issue. He stated they keep being told that compatibility is the real issue; one of the primary functions of a governmental entity is to provide for the safety of the citizens; and he does not understand all the talk about the hazards this poses to children and the inhabitants of the neighborhood, as well as for the people driving up and down State Road 3 not being a concern for the Board. Mr. Meade stated in terms of compatibility, if the Board looks at what is compatible locally, it will notice that there is Buffkin Tile across the street from the entrance to the neighborhood, a couple of gas stations down the street, the LaBella Day Spa, a gymnastics place, and a woodworking company; and none are bars. He stated at some point it will be necessary to call a spade a spade; it is nice to call the facility a billiards establishment; it sounds nice; and it is probably something they will want to put on their sign; however, when they are asking for a CUP to serve hard liquor inside an establishment that is going to be open until 2:00 a.m. and 89 percent of the revenues are going to come from the sale of alcohol, then it needs to be called a bar. He stated they are talking about putting a bar at the entrance to their subdivision in an area where there are no other bars unless one goes all the way up to KDI. He requested the Board not approve the CUP because it is not compatible. He stated the Board has heard from every member of the entire subdivision that backs up to the establishment; and if the Board is looking for compatibility and the impact it is going to have on the neighbors, he thinks it is seeing it. He stated the thought of losing individuals like David Campbell from the neighborhood is devastating; he knows Mr. Campbell listed his house a little lower than what he could get; and it is not selling. He stated someone looking to spend close to a half million dollars on a home is not going to look for one with a bar in its backyard; there is no way around that; and he does not see how there can possibly be any compatibility.

Chairman Pritchard stated the issue of quasi-judicial has come up again; the way this is operating is with professionals present and a court reporter; and requested Mr. Knox explain the Board’s function as quasi-judicial. Mr. Knox stated quasi-judicial is like judges; the Commissioners are sitting as judges; judges have to listen to evidence, but disregard hearsay; and the Board has to take hard facts that are supported by people competent to testify to those facts, the neighborhood, and input from neighbors who actually see things going on in the neighborhood. He stated if someone knows there are 61 children in the neighborhood, that is competent substantial evidence from someone who knows something about that; if there is testimony from an owner about the value of his own property, the Board can probably take that as evidence; if it is an appraiser talking about certain values, the Board can listen to that; but whether or not it is a good idea to have Harleys at the adjacent property is not the kind of evidence the Board is looking for.

Commissioner Scarborough reminded everyone there was a finding of facts that came forward that would have determined the Board’s prior action; it was at that juncture that the Board voted to rehear the item; he did not happen to vote for it; but at this meeting the level of discussion is at a much higher level as far as setting basis for facts. He advised the decisions of the Board have been overturned many times by the courts; to have the information in the finding of facts to support what the Board does is well worth the effort because the courts, as Mr. Knox has already indicated, will look for indications that the Board did respond to things other than facts; and that is why the Board moved to a finding of facts by the County Attorney’s office, which then comes back to the Board at a subsequent meeting. He stated it is no fun to go through the process and then go back through it again; however, if they do not have a substantial finding of facts, the Board will have to go through the exercise again, because the courts will tell it to. He stated he knows it is not easy on anyone; but if it is going to survive an appeal to the courts, this is the way the Board has to proceed.

Chairman Pritchard stated the people have said he is not supporting them; but it is not a question of supporting or not supporting; it is a question of what are the facts and what does the Board have to rely on; the Board is not an extension of the Homeowners Association; and the emotion of the issue has no basis upon what the Board is going to decide. He stated Commissioner Scarborough has said it well; the County Attorney has said it well; and it is the facts behind the issue upon which the Board will make its determination. He stated nowhere in the court system does it allow for the judge to poll the audience to decide whether or not it is going to be murder one; it does not work that way; and it does not work that way for the Board. He stated he hopes the speakers will recall all that has been said in the past several weeks about supplying facts; there is a much higher level of discussion presented tonight; and he appreciates that. He stated he knows it costs the neighborhood and the applicant; but if the
Board does not make a decision based on facts and it is litigated, the Board will lose; and it is the taxpayers’ money they are playing with. He stated that may become very expensive; so they need to make sure they have all the facts at hand to make the decision.

William Burke stated he is president of First Commonwealth consultants; his professional profile spans 35 years of in-depth experience in commercial finance as a commercial financing executive, a banker, and a regulator; and he currently serves on the Cocoa Beach Planning and Zoning Board and has served on the Board of Adjustment and former redevelopment committees. He stated he reviewed the entire business plan submitted to him by Bob and L. J. Granger for the proposed upscale billiards establishment, Diamond Zone Billiards; and the plan was brought to him by the Grangers to assist them in seeking a small Business Administration bank loan for a start-up business. He stated as he is considered an expert, he can attest to the difficulty encountered in obtaining competitive financing for start-up businesses; the business plan submitted by the Grangers supplies components necessary to determine the actual growth plan, solidarity of the business for long-term operation, the basis of revenues generated to operate the facility, and marketing plan of proposed business idea; and it encompasses a great deal including the cost of all start-up for the facility, factors of ongoing maintenance, employees’ salaries, and hourly projections, product cost and returns, and projected revenues generated within the facility by services provided. He stated it also reflects the personal investment by the owners and includes both personal monies invested and assets secured by the owners in order to operate their business; in this case the owners have purchased the CUP liquor license for $120,000 in order to serve alcoholic beverages in the business; and it should be clearly noted that the service of alcoholic beverages is a component only of the business plan, similar to other sports venues such as golf courses, bowling alleys, and restaurant chains. He stated it is not the sole purpose of the business; if it were, conventional bank financing would be extremely difficult to obtain; his job entails presenting the business plan to numerous financial institutions for review in providing financial support; and the business plan has been favorably reviewed by an SBA certified development company. He stated in addition, he had very positive responses
from numerous local financial institutions to provide the secondary financing besides the SBA. Mr. Burke advised the concept is new to the area; the same concept has been successful in other areas of the country and is gaining momentum; and the issue tonight is whether the Board regards the property as a bar or a billiards establishment. He stated a third-party review by local lenders and an SBA development company has regarded the property and its purpose as a billiards establishment; and he hopes that will help the Board in determining how the property is regarded.

Commissioner Voltz stated it was mentioned earlier that 89 percent of the revenue is from alcohol; and inquired if Mr. Burke cares to comment. Mr. Burke responded he is not at liberty to discuss his client’s business plan; but he can tell the Board that the majority of revenues are not being developed from alcohol sales. L. J. Granger, owner of Diamond Zone Billiards, stated she provided the Commissioners in the past with a projection on her breakout of sales; the Board must consider all components of the business as it goes through the process, including the table rental, the pro shop, and food and beverage sales; and her projection at this point is that less than 50 percent of her revenue will be from the consumption of beverages. She advised beverages include non-alcoholic as well as alcoholic; they will also sell food items; and they will have table rental, pro shop, and the boutique.

Commissioner Colon inquired if the information and data that Mr. Burke was giving is based on the fact that he is the Granger’s financial planner or lender; and is that why he gave so many references to his expertise. She stated the reason she is asking is that based on the information the Board received, she is trying to figure out what are facts and what are not facts, and whether a lender would lend a business such as this the kind of money it does based on the income projected. She inquired if alcohol plays a key role, and could the business continue as usual without alcohol. Mr. Burke responded the sale of alcohol is a component of the overall revenue stream that the business is going to generate; it is similar to a bowling alley, golf course, or cruise ship in that the sale of alcohol could be considered an important consideration in the total revenue stream; but bank lenders would not finance the same property conventionally if the revenues were a total component due to alcohol. He stated if it was not a billiards center, the lenders would not look at it in the same light. Commissioner Colon stated the reason she was asking pertains to the percentage of revenue; at one point they were almost trying to distinguish when it is convenient to consider it a bar and when it is convenient to call it a billiards parlor; and that is the part the Board has to try to figure out exactly so it can deal with the facts. She stated it is uncomfortable for someone in the business to discuss every single detail; she is sensitive to that; and Mr. Burke was able to diplomatically answer some of her questions that were a part of today’s discussion regarding the CUP. Mr. Burke stated he appreciates the Board’s dilemma in trying to determine how the property should be regarded; but as far as the investors have looked at it, it is a billiards center, not a bar.

Commissioner Scarborough inquired if the alcohol sales were considered as a part of the revenue stream in approving the loan. Mr. Burke responded he does not approve it; he is not a banker; and he is a business financing consultant who introduces the loans to various lenders. Commissioner Scarborough reiterated his question concerning whether a portion of the revenue
stream from alcoholic beverages was incorporated; with Mr. Burke responding there was a component in the original business plan. Commissioner Scarborough inquired if there was the caveat that the CUP had not been approved yet; and stated if alcohol was included as a component of the revenue, it should have included a caveat that those revenues would not be forthcoming if the CUP was not approved. Mr. Burke requested permission to confer with his client; and stated he does not know if that was assumed or not; but to substantiate a revenue stream, one would have to assume they would have the ability to do so. Commissioner Scarborough stated he is confused because Mr. Burke said he did look at a portion from the alcoholic sales; with Mr. Burke responding that is correct. Commissioner Scarborough stated his question was whether the caveat was included that the revenue stream may not be forthcoming if the CUP was not issued by the County; but it is okay if Mr. Burke does not recall. Mr. Burke stated he does not recall, but he presented the business plan; and when they took it to the banks and financial institutions, it was understood that all permits to operate successfully on the property with the CUP would be in place.

Chairman Pritchard inquired when a business plan is done for a restaurant, would that also include a component for alcohol; with Mr. Burke responding typically. Chairman Pritchard inquired if that is the case whether it is beer, wine, or full liquor license; with Mr. Burke responding typically. Chairman Pritchard inquired if it is part of the aspect of doing business; with Mr. Burke responding it is one of several components. Chairman Pritchard stated Ms. Granger mentioned a boutique; he cannot picture a boutique; and he does not know what it will be. Mr. Burke stated those revenues and the cost of those particular goods and the cost of goods analysis should reflect typically a percentage of industry standards. Chairman Pritchard stated he did not mean to belittle the plan; and he is sure there will be things that people will buy. Ms. Granger inquired if Chairman Pritchard would like her to tell what is in the boutique; with Chairman Pritchard responding maybe later; he is sure it is t-shirts, hats, and pool cues that cost a thousand dollars; but the way he plays, he could never use a good cue because it would be humiliating to the cue.

Maureen Rupe stated she lives in Port St. John; and she represents many groups, but is speaking as an individual tonight. She stated she is becoming increasingly concerned as to the pattern that is emergency of reconsideration and reversal of votes taken by the Board; and it suggests indecisiveness. She stated on this particular item, the Planning and Zoning Board voted unanimously to deny; four out of five of the Commissioners voted to deny; and yet now they are hearing the finding of facts as if all they were talking about was cold hard facts and nothing else. She stated she thanks God for jury trials; the safety issue of children alone at a jury trial would have decided this issue; and alcohol can not be sold so many feet from a school or church, but it seems to be okay for children to stand at a less distance every school day. She inquired if the Board is willing to take the responsibility for any incidents that might occur at this location; and stated she is sure with the controversy that surrounds this, the Board will be held responsible if there are any accidents or if a child is killed. She stated when she read the Planning and Zoning Board minutes, she read that Diamond Zone Billiards would be an upscale billiards center; but she cannot think of a single establishment that sells alcohol out of a small shopping center that is upscale to the extent the owners describe; and such establishments are usually stand-alone places that are away from residential. Ms. Rupe urged the Board to deny the CUP for the people’s sake, for the children’s sake, and for peace of mind. She stated they have reached a point in the County where the only way to insure their own quality of life is to protect that of others.

Chairman Pritchard stated Ms. Rupe brought up a point about the Board appearing indecisive; but she is supporting having the Board revisit items that the Commission denied putting on for the Charter. He inquired where is the Board being indecisive, and is it only when it applies to something Ms. Rupe is for or against.

David Ricouard stated he resides on Biscayne Drive; he was reviewing a recording of the December 14, 2004 hearing when he heard something that at first upset him; but the more he thought about it, the more he realized he agreed with it; and the quote was, “To assume that if you play pool, you drink; if you drink, you’ll get drunk; and if you get drunk, therefore, you’ll be
driving and you will be creating problems is conjecture.” He stated he agrees. He stated Chairman Pritchard said this once before and threw motorcycles in because of a comment he made about motorcycles at 2:00 a.m.

Chairman Pritchard stated he mentioned that; and he just bought a Harley.

Mr. Ricouard stated taking away the motorcycle riders, the pool players, and all the smoke, conjecture, and emotion, one has fact. He stated the amount of alcohol that will be sold has been downplayed; and common sense tells that there are going to be some impaired drivers coming out of the parking lot. He stated on October 7, 2004, Ms. Lawandales testified that, “PIP is designed so that businesses within the areas will, if they follow the rules, be compatible with the adjacent residential areas, so industrial use can coexist with residents, and so can commercial uses of restaurants and sports bars.” He stated some restaurants and sports bars could, in some cases, coexist with residents but there are questions to be considered. He inquired can PIP coexist with a residential area; and stated the answer is sure. He inquired can PIP with a CUP for on-premises consumption of alcohol coexist with a residential area; and stated the answer is maybe, but it would depend on the conditions. He stated the big question is whether PIP with a CUP for on-premises consumption of alcohol located at the only ingress and egress to that residential area, with a school bus stop located within feet of the front door can coexist; and the answer is absolutely not. He stated Section 62-1542 of Article VI, Planned Industrial Park, is not clear in its reference to permitted uses, accessory uses, and conditional uses; and thanked Mr. Enos for clarifying that in an email. He stated the burden is supposed to be on the applicant; and he is not sure how it happened, but the burden has been shifted to the residents of Sunset Groves, who took the challenge and spent thousands of dollars seeking legal and professional advice. He stated they also spent countless hours doing their own research; they should not have been placed in this situation; but to protect their rights as property owners and to maintain their quality of life, right of convenience, and right to enjoy peace and quiet, they have endured. He stated this past weekend, he was in his backyard; he was fishing in the retention pond; and he realized there was peace and quiet, but that they were
going to get rid of that peace and quiet. Mr. Ricouard stated he, the neighbors, and the professionals have given the Board enough information to reach a conclusion; and requested the Board deny the CUP.

Robert Leichtenberg stated he is an MAI appraiser; and he is present on behalf of the homeowners to testify as an expert witness with regard to the diminution of property value likely to occur with the approval of the CUP. He requested a few extra minutes of speaking time since all the experts from the other side have talked quite a few times this evening, and it is a very complicated issue when they start talking about property values. He stated his résumé includes that he is an MAI appraiser; he has testified in federal court in California, Ohio, Pennsylvania, New York, New Jersey, and Florida and in the local courts probably a couple of hundred times on eminent domain matters as well as other property disputes. He stated this is an unusual situation for him because he is usually representing the other side; but he is representing the property owners in this case; and he honestly believes this will cause an impact to their property values. He stated his assignment was to determine whether there would be an impact on the value of the properties; there are certain ways in his profession that they work; and the most significant way is prepared sales analysis. He stated they take a house behind a bar, and then a house very similar to it a few blocks away, sold in the same time period, and the same type of comparable house; and he took the three billiards parlors that Clark Maxwell used. He stated there are a lot of CUP’s out there; some back up to residential; but it really does not mean anything; and what matters when talking about value is the property. He stated this is a $400,000 neighborhood; all three that they had used were $100,000; and the criteria for someone who can afford to spend $100,000 is far less stringent than someone who can afford to spend $400,000. He stated someone who can spend $400,000 has a lot of houses to look at today; but he does not even know if anyone can find a $100,000 house in Brevard County, so all the CUP’s that are shown and their locations are meaningless without a close look at them. He stated the Warehouse Billiards Parlor was referenced in the report by Mr. Maxwell; but as the Board can see, there is no parking back there. He stated there were just two sales there; and they were the two lowest sales in the neighborhood, but neither is any good. He stated he analyzed them; one shows a 30 percent reduction over the other; and the one is not a good sale because the property discounted it as a sale. He stated the important thing to remember is these are $100,000 sales; they are not $400,000 houses; so they are not apples to apples or oranges to oranges; they are apples and ducks or something like that. He stated another one is Chalky’s Billiards Parlor; there are sales around it; and pointed out the parking area. He stated one can see houses in the neighborhood from the front door of the main entrance of the billiard parlor; it is possible to see houses through the buffer zone; and if one can see houses, there will be light and noise through it. He stated it does not matter if the building is soundproofed; the people leaving at 2:00 a.m. will be laughing and talking; that is what happens; and in real estate what matters is perception. He stated the last example is Patrick’s Pub; he had one sale there that was good; and he had sales of 13, 11, and 12; and there was a 30 percent difference. He stated the sales were within two weeks of each other; they were the same size; and 13 sold for less even though it had a fireplace and was ten years newer. He stated it may have just been an accident; but it does back up to the noise generator, what is called in the appraisal business LULU’s, locally unacceptable lands; and that is what Diamond Zone is. He stated it is not a billiards parlor; it clearly says it is Diamond Zone Billiards and Sports Bar.

Chairman Pritchard inquired how much more time does Mr. Leichtenberg need; with Mr. Leichtenberg responding five minutes.

Commissioner Scarborough stated this is critical information for the finding of facts.

Motion by Commissioner Scarborough, seconded by Commissioner Carlson, to allow Mr. Leichtenberg additional time. Motion carried and ordered unanimously.

Mr. Leichtenberg stated to determine based on sales analysis, one cannot used assessed values as he has seen done; that cannot be done in court; he has testified a hundred times; and the courts will not allow that. He stated Mr. Knox or Commissioner Scarborough will tell the Board that; assessed values are meaningless; and what matters are paired sales. He inquired
why do they not have a lot of paired sales with $400,000 houses backing up to bars; and advised that is because this would be the only place it is being done. He stated people perceive it as a problem; when there are no comparables, they have to go to the market; and that would be the market buyers and sellers. He stated it is evident what the sellers think; and it is evident what the buyers think; they are not going to buy there; and inquired if the Commissioners would buy there. He stated one can stand on one side of the street and see the front door; he heard that FP&L said it was going to give them a fence, but nothing is in writing; he had a piece of property on Lake Washington Road that he tried to get the Board to put a road through; and even though FP&L told him that, when push came to shove, it did not happen. He stated even if they put a six-foot fence in, the house is three feet above it; and lights and noise will come in. He stated he has no doubt this would be a tremendously successful operation; he has read their plan; and that should scare the Board because of underparking. He stated Publix does not ask about the minimum number of parking spaces because it overparks; and if there are going to be all the people at Diamond Zone and it is going to be as successful as they say it will, then there is not going to be enough parking and there will be parking on the street and in the neighborhood; and they will be leaving at 2:00 a.m. He stated if the Board looks at the pictures, it can see how close it is; and they do not have enough parking. He stated pool hall standards are based on experience with pool halls, not super pool halls with sports bars; and one of the examples had ten tables, another had twelve, which are little pools halls. He stated the proposed facility will generate traffic with national tournaments and ESPN trucks; and he cannot even imagine trying to drive a prospect there. He stated in addition to being an appraiser, he is a realtor; he sold twelve houses last year in the County; he buys houses, sells them, and does subdivisions; and there is no way if he looked at the land and the bar was there that he would even entertain doing a subdivision on it. He stated right now he has five subdivisions that he is working on under contract; they are going through various stages; and three or four of them are closed. He stated absent comparables, it is necessary to look at what one thinks a $400,000 buyer or seller would do; the Board knows what a $400,000 seller would do because they are all present; and the reason they are present is this is going to be a noise generating business and the parking lot is going to be tremendous. He stated they talk about soundproofing the building; if they soundproofed the parking lot, that might be something; but they are not going to do that. He stated the lights are going to shine through; the Board can see from the pictures how close it is; he stood in front of the door and took pictures of the houses through the trees; and if the Board looks at one of the applicant’s photographs, it can see the houses through the wetlands. Mr. Leichtenberg stated perception is everything; if it was a $100,000 neighborhood, he would say it would not hurt it because it is done all over and they have a lot of maps that show that; but he does not see any CUP’s for alcohol next to a residential subdivision in Suntree; and when they are, they are buffered properly. He displayed a photo; and stated this is the proper way to do it; the parking is kept to the front; the people are kept in the front; and the proposed building is just the opposite of what it should be. He pointed out the entrance on the site plan and stated it is 129 feet; and advised if there are the crowds they have been talking about, the parking lot is going to be full of cars, full of noise, and full of people screaming at the end of the night. He stated they will all leave at once when the tournament is over; they will not leave before it is over; they are not going to leave before league play; and it is all the leaving and coming at the same time with people drinking. He stated if it was turned around with the no parking in the back, the applicant might have a better argument; but as long as they can see the front door from the houses, it is going to have a tremendous effect. He stated the only sale he could identify showed a 30 percent decrease.

Chairman Pritchard inquired if the PIP itself has a diminutive effect on the value of the neighborhood; with Mr. Leichtenberg responding they are trying to talk too simplistically about real estate, and it depends on the uses. Chairman Pritchard stated this is a planned industrial park on the south side of Duval; they are building a mirror image on the north side; and they will be driving through a planned industrial park to get back to the neighborhood. Mr. Leichtenberg advised some of the planned industrial parks are better than some neighborhoods that connect to the bar; it is a very nice place; and his main concern is not that it is a planned industrial park. He stated a little restaurant there would be great, and so will little stores similar to what is there now; but what drives his opinion is that this is a bar; and the only reason they do not call it a bar is because they cannot finance a bar. He stated it is a sports bar with very nice pool tables; it is going to be topnotch; it is going to be first class; and it is going to have hundreds of people there. He stated when there is that kind of noise, that kind of traffic, and people who may drink and drive, it is perception; and someone driving in the neighborhood on a Saturday afternoon when the parking lot is full will turn around at the end of the street and drive back out because for $400,000 or $500,000 in Brevard County, they can buy a lot of houses in areas where they do not have to put up with that.

Commissioner Scarborough stated one gentleman said he placed his house on the market; and inquired if Mr. Leichtenberg knows the house; with Mr. Leichtenberg responding he knows the house. Commissioner Scarborough inquired what would it normally sell for if it was not in this location; with Mr. Leichtenberg responding $400,000 to $500,000 at this location. Commissioner Scarborough inquired what is it on the market for currently; with Mr. Campbell responding $395,000. Commissioner Scarborough inquired how long has it been on the market; with Mr. Campbell responding about five weeks and there have been no offers, although there have been a lot of lookers. Chairman Pritchard inquired what did they base the $395,000 on; with Mr. Campbell responding that is what he needs to get for it; and it was basically his bottom dollar. Mr. Campbell stated he cannot even find a piece of land in Port St. John to replace his home; and the more he looks, the more discouraged he gets. Commissioner Scarborough inquired if Mr. Leichtenberg has any idea what houses were selling for in the neighborhood before this event; with Mr. Leichtenberg responding he drove through and got the feeling of $425,000, $450,000 or $500,000; and with houses today, if it has been on the market for five weeks, there is a problem. Mr. Leichtenberg stated prices are going so crazy that every time he buys a house and figures he is going to make x dollars, he ends up making $30,000 more than that. He stated Mr. Campbell’s home is a big house; and he believes it is probably 3,000 square feet; with Mr. Campbell advising it is 2,800 square feet. Mr. Leichtenberg stated it is a gorgeous house as the Board can see in the pictures. Chairman Pritchard stated looking at all the other houses in the County, he would love to buy it for $395,000. Commissioner Scarborough stated he was trying to relate the prices. Chairman Pritchard stated it is for sale, and recommended buying it. Mr. Leichtenberg stated if the Board turns down the CUP, he will buy it. Chairman Pritchard stated he does not mean to belittle the
neighborhood; he went by Mr. Campbell’s house today; and inquired about the $500,000 price Mr. Leichtenberg inquired if Chairman Pritchard has bought or sold any houses lately; with Chairman Pritchard responding he just had his appraised. Mr. Leichtenberg stated an appraisal is one thing; he bought two in December and 20 acres of land, and bought two more in January; and he sold approximately 15 houses last year and bought five pieces of land. He stated he just finished paying $50,000 an acre for a 10-acre piece on Dairy Road that six months ago if someone had offered it to him at $25,000, he would have laughed at them, but now he jumped on it because he can probably spin it for another $300,000 profit today. He stated what Chairman Pritchard thinks of $500,000 and what he thinks of $500,000 is not the same number it was last year or last week. He advised of the difficulty in finding houses; stated as fast as he gets his houses renovated and back on the market, he has a contract in a week; and if he does not have a contract, he must have a problem. Commissioner Scarborough stated he reads the paper too and sees what the comparables are in the neighborhood. Chairman Pritchard stated none of them are pushing $500,000. Mr. Leichtenberg inquired if Chairman Pritchard or Commissioner Scarborough could appraise it.

Commissioner Colon stated it is funny that they are talking about perception, like the perception of the landfill being appraised at one price and then for millions of dollars more that very afternoon; and agreed that perception is everything. She inquired what is Mr. Leichtenberg’s professional opinion of the kind of impact there will be on the value of the abutting residential property if the CUP is granted. Mr. Leichtenberg responded he looked at two of them in the $100,000 range, and there were significant drops; and in this case he would expect a 10 to 15 percent drop. He advised it is hard to say until one of them is sold; they do not have this situation anywhere else in the County; and if Chairman Pritchard does not want to think it is a $500,000 market, then certainly it is a $400,000 market. He stated he used to think he knew values every day until he started buying and selling real estate; but he is beginning to wonder. He stated he knows that is a substantial neighborhood; and he knows the house has been on the market for five weeks. He stated it is a gorgeous house; it should have sold; and inquired why has it not sold. He stated in all likelihood it is because of what is going on behind it. Chairman Pritchard stated it could be they are asking too much; but he does not know; with Mr. Leichtenberg responding he knows, that is his job.

Linda Link stated she lives at 3391 Biscayne Drive, and just had a real estate agent come to her home; her home is 2,500 square feet; and the real estate agent told her she could sell her home for $425,000. Chairman Pritchard stated she should get a six-month listing; and really it is what one can get. Ms. Link stated she does not think Chairman Pritchard has checked the real estate market; it was not this way six months ago; but it has changed. Chairman Pritchard stated he checks the paper weekly; a realtor will say someone can get $500,000 to get him or her to sign the contract; and then when they do not get it, six months later, they want the person to renew the contract. Ms. Link stated there are comparables in the area.

Bob Scales, Scales Company, stated he wants to address some of Ms. Rezanka’s comments, particularly in her letter. He stated they have talked about parking and fencing, but he wants to talk about lighting because it has come up several times. He stated they are required to submit a site lighting plan, which includes a photometric plan; the photometric plan tells where the light is spread on the site; and by Code and subject to inspection, they are not allowed to have any light from any of the site lighting to spill over property lines. He stated as part of their final inspection, they will go through that process; and their photometric plan that was submitted, reviewed, and approved by the County, will be subject to inspection. He stated in reference to sound, reductions in sound are taken; and they use the sound transmission class standard. He stated the walls for the pool hall will have an STC, sound transmission class, of within 50 and 60 decibels; if they put a jackhammer inside the building, the outside of the building would be the equivalent of a quiet room; and a power mower inside the building would be equivalent to a quiet street. He stated they are really reducing the sound; and he does not think there are going to be any problems with sound within the building being heard outside the building. He stated he was a party to the traffic plan; they brought the site plan to Dick Thompson who works for the County; they sat down with Mr. Thompson and showed him what they had; and as a result of that meeting, they decided to put in northbound and southbound deceleration lanes. He stated that is a very important attribute to some of the complaints the community had regarding traffic incidents. He stated this will allow eleven or twelve cars to stack in the northbound lane before they turn into Duval Street, rather than stopping in the fast lane of a 50 mph road; and that is an important consideration because it will greatly reduce the incidences of accidents at that location. He stated someone submitted a letter from St. Johns River Water Management District dated February 14; he has not seen that letter; but the Water Management District reviewed the site plan and approved it. He stated to his knowledge, they have not violated any wetland requirements; and he will contact St. Johns River Water Management District to see what it was referring to. He stated in terms of parking, the current site plan complies and has more parking than is required. He noted they already touched on the FP&L easement.

Commissioner Voltz stated she has a question concerning the southbound deceleration lane; and inquired if it will be just before Duval Street or just before the parking lot. Mr. Scales responded it will begin right before the south entrance into the parking lot. Chairman Pritchard inquired if it will be south of Duval Street; with Mr. Scales responding yes, it will be right as one goes into the south entrance. Commissioner Voltz inquired if that would be the entrance to the facility; with Mr. Scales responding yes. Chairman Pritchard requested Mr. Scales point it out on the drawing of the site; with Mr. Scales pointing out the entrance and the deceleration lane. Chairman Pritchard inquired how long is the deceleration lane. Commissioner Voltz stated she thought there was going to be a deceleration lane for the school bus; with Mr. Scales responding there is not a lane to the north of Duval; that was not required by the County; but there is a lane into that entry.

Mr. Zari stated that is not how it was presented on October 7, 2004.

Chairman Pritchard stated it was presented that the deceleration lane was going into the southbound entrance, and that the Grangers would construct a bus stop shelter there to keep the kids out of the weather. Mr. Scales stated the proposal was to move the bus stop down so the bus could get off of Courtenay Parkway. Chairman Pritchard inquired if that is onto the deceleration lane; with Mr. Scales responding yes. Commissioner Voltz stated evidently the School Board is saying it does not want to move the bus stop. Chairman Pritchard stated he asked to have the bus stop moved, but School Transportation will not. Commissioner Voltz inquired if the bus stop right now is just north of Duval Street; with Chairman Pritchard responding affirmatively. An unidentified speaker indicated it is south of Duval Street; with Chairman Pritchard advising it is south. Mr. Scales stated someone located it earlier, and it is south. A speaker advised that is where the deceleration lane begins. Mr. Scales stated just eyeballing it, there are a couple of hundred feet until the taper dies into North Courtenay Parkway. Commissioner Voltz inquired if the kids are going to be let off in the parking lot; with Mr. Scales responding he does not think so; he does not think the School Board has allowed the relocation of the bus stop; it was a proposal made several months back; but he is not sure if that was ever solidified. Commissioner Voltz stated currently children are left off on Duval Street; and inquired if they were looking at moving it further south so the kids could get off in the parking lot. Chairman Pritchard advised there is a sidewalk there now. Mr. Scales stated the intent was to get the kids off North Courtenay Parkway; and it was just a proposal made at the first Commission meeting.

L. J. Granger stated there are a couple of things she wants to clarify; they seem to be struggling with definitions tonight; and inquired if someone walks into a bowling alley that has 24 lanes and a bar, what is it. She stated it is a bowling alley; if someone walks into a billiards establishment with 24 tables, it is a billiards establishment; and it is obvious there will be a lot of pool playing with 24 tables. She stated if someone walks into a bar that has a pool table, that is a big difference. She stated when Mr. Stephens created his business plan for Diamond Zone, all those numbers were based on speculation; he has no idea what the cost of any of her goods are going to be or what the resale will be; and she had no conversation with him. She stated she would like to talk about compatibility and hours of operation; a poll was shown about adjacent businesses; the businesses shown, including flower shops, beauty salons, bicycle shops, tile stores, etc. operate during hours that are conducive to their customer base; these hours are traditionally the day shift, opening sometime in the morning and closing in the afternoon, five to seven days a week, depending on their respective customer base. She stated the characteristic day shift work also includes people working in office buildings, law offices, government centers, and the vast majority of public and private businesses; and the fact is that most people work day shift. Ms. Granger stated businesses that operate after hours are shopping centers, department stores, gas stations, convenience stores, restaurants, bowling alleys, movie theaters, lounges, pubs, bars, sports venues, and any other entertainment business; and they remain open later into the evening and night hours to provide services and entertainment to all people, including the day shift workers, so they will have a place to go for enjoyment after work. She stated some restaurants, stores, and support businesses are open 24 hours daily to support not only the day shift but those people who also work evening shifts or swing shifts; and those people include public service occupations like law enforcement and in the case of Brevard County, the Space Center shift workers who wish to relax and enjoy food and beverage at a local restaurant, lounge, or fine billiards establishment. She stated by documented evidence and precedence, evening and night operators of support businesses, such as restaurants, lounges, and entertainment services are compatible with neighborhoods in the County; and the vast majority of these community support businesses are located and permitted by the County in close proximity to residential areas. She stated most residential neighborhoods are comprised of people who not only work the traditional day shift, and appreciate evening entertainment, foods, and refreshments, but also individuals who work in service industries or shift workers who provide these services to all. She stated the neighborhood surrounding the proposed site for Diamond Zone Billiards appears normal and comparable to all in the County; supporting normal neighborhoods, one finds the aforementioned support services and businesses all over the County in both incorporated and unincorporated areas; and therefore compatibility is established unless it is shown that there is something specific, based on the facts about this neighborhood, that is different or uncharacteristic than most residential communities in the County. She stated in terms of hours of operation, community support businesses like lounges, sports bars, bowling alleys, and restaurants have specific regulating Ordinances controlling sale and consumption of alcoholic beverages; and currently the County limits hours of consumption on premises and requires a 2:00 a.m. shutoff. She noted that does not mean that all businesses will serve or have a conditional use permit and stay open until 2:00 a.m.; the County Ordinance simply establishes the limit of hours of operation; the actual hours of operation for most businesses are based on their customer base and simple business decisions; and many close before 2:00 a.m. She stated Diamond Zone Billiards desires the same rights as all other businesses, to operate within the hours stipulated by the Ordinance; that does not mean they are going to stay open until 2:00 a.m.; and they reserve the right to close earlier as they deem necessary. She inquired if they are not making a profit after certain hours, why would they stay open. She stated over 80 percent of the establishments that serve food and beverages are located within 500 feet of residential properties; they are part of their respective neighborhoods; and almost half of those businesses are located within shopping centers, malls, or strip malls.

Ms. Granger requested an additional two minutes to speak. The Board reached consensus to allow Ms. Granger additional speaking time.

Ms. Granger stated the shopping centers, malls, and strip malls are by precedent compatible with the residential areas and operate into the evening or late hours at night; and this is where they are supposed to be. She inquired if all over the County school buses drop off students and they walk by the established business; and advised it happens everywhere. She stated through permitting and zoning processes currently established in the County, specific criteria involving traffic, parking, glare, and noise must be met to obtain permits; North Courtenay Square has been permitted through these processes; and it meets or exceeds all setbacks. She inquired if Diamond Zone did not exist, would they be in front of the Board now discussing any of these issues. She stated the shopping center is permitted on PIP property; other businesses that could locate there, according to County Code, include restaurants, convenience stores, dance halls, and many other commercial ventures that could result in nighttime, or even 24-hour traffic to the center. She advised most of the businesses do not require conditional use consideration by the Board, so the question of glare and lighting from nighttime traffic will not be asked on the application permitting process; and the permitting requirements and Ordinances that are already in place are sufficient. She stated of the 122 business sites surveyed, the acceptability of sufficiency requirements and Ordinances are obviated, or else the court would be aggressively trying to change them based on the number of complaints. He stated causing additional lighting, noise, or glare concerns is unlikely beyond the already permitted use; and any conjecture concerning the Diamond Zone causing an unacceptable lighting or glare is mere speculation. She stated many of the complaints the Board heard tonight are based on the entire shopping center; and requested the Board’s consideration of all the facts.

Mr. Bettin stated he appreciates the consideration of the Board tonight; he agrees that the hearing has been a lot more fact-based than the minutes that he read from the first time; and folks may be getting numb from all the information they had thrown at them. He stated every time he sees one of these proceedings it seems like the only party in the room who does not have property rights that are important is the applicant, from the point of view of the people who come forward; but the applicant has property rights guaranteed by the Constitution of the State of Florida and the United States of America. He stated the reason the Board has quasi-judicial proceedings, and the reason they have been forced on local governments by the courts, is because the applicant has constitutional rights. He stated most people understand, right up to the minute they oppose something, that their right to control someone else’s property only exists if the person’s use of the property affects them; and that means in order to have a say in how one’s neighbor is using his or her property, one has to show there is an adverse effect to one’s property. He stated they heard discussion tonight that the noise is going to be terrible; but Diamond Zone has complied with all rules and regulations pertaining to noise; and it has already been dealt with in the site plan approval. He stated the Board cannot assume that Noise Ordinances will be violated; the Board cannot assume any law is going to be violated, although that is what the Board has been asked to do repeatedly; and Mr. Leichtenberg knows this but has told the Board otherwise anyway. He stated the same thing applies to glare; Mr. Scales has talked about the obligations in getting site plan approval for lighting; the lights are going to be on whether there is a CUP or not; it is a requirement that the parking lot be lit at all times during the evening whether there is a CUP or not; and the glare will be there whether there is a CUP or not. He stated Mr. Leichtenberg knows that, but has still tried to convince the Board otherwise. Mr. Bettin stated Mr. Scales has talked to the Board about parking; and even if the Board called the facility a drinking establishment, there is sufficient parking to meet all regulations. He stated in terms of traffic, the site plan has been approved; if it turns out that there is a traffic issue at a later date, the site plan will have to be dealt with; but that is a site plan issue, not a CUP issue. He stated on the question of property values, the law imposes upon the County the burden of proof to demonstrate that there would be a diminution of property values as a result of the CUP. He stated Mr. Maxwell and Mr. Wagner, both MAI appraisers, have reviewed the packets and information; they talked to L. J. Granger, Bob Granger, Mr. Scales, and everyone; and they have provided letters saying there is no diminution of values, and there is nothing about the center and this use that would cause that. He stated Mr. Leichtenberg has not done any appraisal work; he has taken potshots at the information that is in the packet and told the Board why it should not accept it; and the Board will have to choose who it believes. He stated all through this there has been an undercurrent that the Diamond Zone people are trying to put one over on the Board and are trying to lie to the Board.

Mr. Bettin requested additional time to speak as Ms. Rezanka was given an additional five minutes. Chairman Pritchard allowed Mr. Bettin to continue speaking.

Mr. Bettin stated the Board had an opportunity to discuss this issue at any time with anyone associated with the Diamond Zone; and inquired have they ever lied, not answered a question, or dodged anything. He stated Mr. Enos has dealt with these people; they tried to answer his questions; nobody is trying to hide the ball; and there are a lot of issues the Board has to deal with in all of this. He stated as an applicant they are entitled to the respect of being honorable people going into the proceeding; and the argument and suggestion that they are not is inappropriate. He stated the last issue is alcoholic beverages; it is fair to summarize what the Board heard from the neighbors is that they do not want the CUP because it creates drunk drivers, and they do not want drunk drivers around them. He stated nobody likes drunk drivers; he happens to be one of the Board’s constituents too; and inquired if the Board is going to deny the CUP to keep drunk drivers away from the neighborhood, is it going to revoke every CUP in the County to keep drunk drivers away from the rest of the people, and if it is not going to do that, why not. He inquired what is it about this neighborhood that entitles it to more consideration than the rest of the people. He stated all throughout the County, CUP’s coexist with adjacent residential uses; and if they did not, the Board would be revoking the CUP’s because of inability of the two uses to coexist. He stated there is nothing unique or distinctive about the properties that make them entitled to any worse or better protection from the Board than the rest of the people. He stated the Grangers have listened and heard a number of things through the evening; and there are things they are willing to do if it helps make it easier to be good neighbors. He stated they can install a sign noting that Duval Street is not a through street; it can be placed in a prominent site so that people will see it; and a crash gate or traffic device can be installed on Duval at the exit to keep people from going that way. He stated they can do what a lot of places do when they only want right-hand turns, they can put in concrete islands that will only permit right-hand turns.

Chairman Pritchard inquired what about the gate to the west; with Mr. Bettin responding the gate to the west is crash gated at all times; and it needs to be there in case fire or rescue vehicles need access to the back area. Chairman Pritchard inquired why does it have a stop sign; with Mr. Bettin responding they will make it go away. An unidentified speaker advised the gate is not up yet, so the stop sign is in. Mr. Bettin stated if it resolves the issue, they will put in a concrete barrier to prevent left-hand turns; once the plaza goes in, the people in the neighborhood are going to find it annoying that they cannot leave the plaza, turn left, and go down to their homes; but if that is what they want, they can have it. He stated if the Board wants to pursue a traffic light for Duval Street and North Courtenay Parkway, he is in favor of it; and they would be willing to have part of their impact fee pay for it, or they could pay half the cost if that would get it done. He stated if it is necessary, when school is in session, they will restrict service hours so they will not serve anyone before 3:00 p.m. He stated they may still open earlier, but will not serve alcoholic beverages to anyone before 3:00 p.m. so the bus drop-offs can proceed without anyone having had an hour or so to be drinking.

Commissioner Voltz suggested 4:00 p.m. Mr. Bettin inquired what time does the Space Center get out; with Ms. Granger responding 4:00 p.m. Mr. Bettin stated they start coming out at 3:00 or 3:30 p.m., so that winds up being a business disadvantage.

Chairman Pritchard stated they need to move the bus stop; but School Transportation does not want to listen to him. Mr. Bettin stated they are in favor of that. Chairman Pritchard stated there should not be bus stops on major arteries; and North Courtenay Parkway is such an artery.

Mr. Bettin submitted a group of photographs as evidence and Ms. Lawandales’ written remarks.

Ms. Lawandales advised there is a bus stop in front of Shuttles. Mr. Bettin stated Shuttles has beer and wine and a driveway that goes right into a residential area behind it and it has a bus stop in front of it. He stated in other words, it is very much the same situation; and the only difference is the liquor license for Shuttles is for beer and wine and not a full liquor license. He stated they are just asking to be treated like all of the other establishments are being treated throughout the County. He inquired if there is some reason this section of the County gets to be dry but the rest of the people have to deal with people driving after drinking; and stated they submit that there is no reason and there is nothing unique about this situation that justifies denial of the CUP.

Commissioner Colon stated she wants to make sure Mr. Bettin gets a letter from St. Johns River Water Management District. Chairman Pritchard provided a copy of the letter to Mr. Bettin, who advised Mr. Scales is the only one who will be concerned with it. Mr. Scales stated he has a copy. Chairman Pritchard inquired how the Board got a copy; with Mr. Zari responding he submitted it. Chairman Pritchard inquired how Mr. Zari got a copy; with Mr. Zari responding because he is one of the persons who contacted the St. Johns River Water Management District. Commissioner Voltz noted Mr. Zari is on the cc list. Mr. Zari advised he videotaped a foreman with a chainsaw going through and impacting the wetlands.

Discussion ensued on whether to take a recess.

Commissioner Colon stated Ms. Rezanka has heard some of the things that were mentioned; this is the last discussion before the Board takes a break; and she wants to make sure everything is on the record.

Ms. Rezanka stated she does not want to rehash anything; but the problem is they have not done what they need to do upfront; and now they are going to go back and change things if the conditional use is granted. She stated land development did not get to review this with the conditional use; they are now saying parking is sufficient; but Mr. Enos says it is not. She stated it has not been addressed; if they want to change the whole site plan, that is fine; but that does not give the Board a chance to review it. She stated it is being done in pieces, and that is not fair. She stated they are supposed to show the impact by the County’s Code and economic impact; their appraisers are not present; and the Board has no idea what their appraisers’ experience is or what they are basing their opinions on. She stated they are basing it on appraisals from the Property Appraiser’s map and website, which is insufficient. She stated there is an appraiser present who has testified to a 30 percent diminution in value, and in this particular neighborhood, a 15 percent diminution in value. She stated this is a special neighborhood; it is high value; it does not have the appropriate buffering; there is parking in the front; and it was not well planned; but now they are trying to fix it. She stated she does not know if they are trying to hide anything; but obviously there are things that have not been brought forward; and it is the applicant’s burden to make sure they are all here before the Board passes the CUP.

Commissioner Colon stated she just wanted to make sure it was perfectly clear; whenever there are two folks, she wants to make sure everyone gets an opportunity to speak their mind if they have something they have not had an opportunity to share; and it is not personal because the applicant has been a lady throughout the whole process, for which she compliments her.

Chairman Pritchard stated it has been brought up that the process has gone from here to here to here and things are coming in at different times; and inquired if this is typical of the processes when the Board goes through these various issues. He stated it seems the Board has not had one thing that went from A to Z without getting all kinds of changes and getting somewhat convoluted in the process; and inquired if this is atypical. Mr. Enos stated it is not typical to rehear an item; and part of the reason there is new information submitted is because the Board chose to rehear the item and take new evidence. He stated it is not unusual to criticize a site plan approval; that happens on occasion; and he does not think it is particularly relevant because site plan uses change and site plans change. He stated whether or not the CUP is approved, the uses may still change on the site plan; and there are going to be times when that happens. He stated that is not necessarily an issue for the CUP discussion because if it happens, they will need to amend the site plan. Chairman Pritchard stated in the couple of years he has been on the Board, a couple of issues have come, gone, and come back; one was beachfront property; and another was an issue in Snug Harbor. He stated nothing ever goes as smoothly as the Board would like it to go; it is forever changing; and if there is such a thing as a dynamic process, this is it.

The meeting recessed at 10:51 p.m. and reconvened at 11:00 p.m.

Chairman Pritchard stated he appreciates all who have been here tonight and the information that has been passed forward; and it has been good and necessary. He stated the first round dealing with this issue was not as well conducted; but this has been very good, with a lot of information on both sides. He stated the Board finally impressed on the parties that it is quasi-judicial when it operates like this, has to listen to the facts, and the emotion of the issue is not part of the consideration. He stated he cannot pass on his personal opinions into his decision-making process; for example, he could not vote against a restaurant that serves beef because he is a vegetarian; and things like that are not part of the deliberation process.

Commissioner Carlson stated this was a good process; rehearing it and listening to the facts on both sides gave both sides the ability to present facts in a way that was not presented the first time; and it helped in terms of her decisions. She stated the burden was on the applicant; and she was hoping to hear about some of the things that she had concerns about that she discussed with the applicant in her office. She stated she has not been provided with enough clear evidence to accept this; and she will go over them based on 62-1901, under General Standards of Review. She stated the number of persons anticipated to be using the facility is in question; there is no clear evidence provided; and there are questions regarding the site plan and things like that. She stated she knows the site plan should not be considered; but there was concern in the neighborhood about the number of people who would be using the facility; and there were parking issues as well. She stated under A, it says, “The proposed conditional use will not result in a substantial adverse impact on adjacent and nearby properties due to, (1) the number of persons anticipated to be using, residing, or working under conditional use”; and “using” is the key word here. She stated under B(c)(1)(b), it says, “The proposed use will be compatible with the character of adjacent and nearby properties with regard to use, function, operation, hours of operation, type and amount of traffic generated, building size and setback, and parking availability”; and where she saw lack of evidence for compatibility was with the hours of operation, the type and amount of traffic generated, and the parking availability. She stated C(1)(c) says, “The proposed use will not cause a substantial diminution of value of abutting residential property”; the MAI certified appraiser has testified that it would potentially reduce the properties because of the comparison of the properties that were in the $400,000 to $500,000 range versus the $100,000 range. She stated she questioned that as she looked through the information the applicant gave her; what she noticed about the three particular cases that were pointed out had to do with homes that were built in the 1960’s, and some earlier than that; so she agrees there would be a diminution of value in this case. She stated C(2)(a) says, “Ingress and egress of the property and proposed structures thereon, with particular reference to automotive and pedestrian safety and convenience.” She stated there is a pedestrian safety issue; she is not sure the issue of burdening the adjacent and nearby uses is essential to the argument; but she does not think there was enough evidence to demonstrate that pedestrian safety would be remedied based on the issue of the school bus stop, which she thought was going to be moved. She stated buffering was another concern; as was indicated by the appraiser, as well as other testimony, there are going to be concerns about the lack of sufficient buffering and screening due to the FP&L issue, noise impacts and other impacts such as visual impacts; and that might actually impact the valuation of property at some point down the road. She stated there are no guarantees provided in the testimony that indicated the fencing would be significant enough to keep the diminution from happening. Commissioner Carlson stated H says, “Hours of operation of proposed use shall be consistent with the use and enjoyment of the properties in the surrounding residential community, if any”; and she thinks the hours of operation are an issue only because of the problem with the proximity of the PIP, the applicant’s business, and the residential community. She stated those are the things she tried to bring as far as factual evidence as the Board sits as quasi-judicial individuals; she tried not to get into the alcohol use and apply alcohol to the entire County or to what is going on in the business and that sort of thing; she tried to look at the standards of review; and those were enough for her to deny the applicant’s request. She stated it is unfortunate because it sounds like a great business; and she would love to go there and play pool; but based on the evidence and what the Board is supposed to look at, she cannot, in good conscience, approve it.

Commissioner Scarborough stated he agrees with Chairman Pritchard that there are few cases he can remember having this much data provided on the overall complexity of what the Board has done previously with CUP’s. He stated one thing has been suggested that the Board needs to be careful with; the fact that the Board has granted CUP’s elsewhere in proximity to particular neighbors should not be taken that it is going to grant CUP’s in all cases with proximity to neighborhoods. He stated when Mr. Myers was speaking, he reminded the Board of the Port St. John issue with Dogs R Us; and he does not know if the Commissioners recall that; with Commissioner Voltz responding she does. Commissioner Scarborough stated that issue came back for a year or 18 months before the Board effected numerous things; that was a very active area with other alcoholic beverages in close proximity; Kelsey’s is down the street; and it was incidental to the service of hot dogs and pizza. He stated the community was most active in the traffic circulation and how it would impact traffic on US 1 with just a small amount of consumption there. He stated to say that the Board has abandoned any discussion on the placement of alcoholic CUP’s in close proximity to homes is a misstatement for what the Board has done historically.

Commissioner Colon stated she agrees with what her fellow Commissioners have mentioned. She stated one of the statements from the attorney was, “Allow us a public hearing, and I promise that we will not come back”; and she hopes they stick to that because if one views the video or reads the transcripts, they will see that is exactly what was said to the Board. She stated whatever direction the Board takes, it will have to do a finding of facts; and at that particular point, she would encourage the close of public hearing. She stated they could end up with the same scenario they had in Cocoa, where they kept going back and forth; they said they would allow the public hearing; and inquired at what point does the Board close public hearings. She noted this has been excruciating for everyone involved, those for and against it.

Commissioner Voltz stated she does not find the complete line of facts that Commissioner Carlson found; she has heard so many facts from the four hours of testimony that she does not remember what was said at 6:30 p.m.; and she has a lot of questions. She stated Commissioner Colon is right as far as finding of facts; she does not know at this point if the facts are right; everybody seems to present facts; but she does not have that much knowledge on assessed property, property values, and those kinds of things. She stated she does not know whose facts are right; and she would like the County Attorney to come back with the finding of facts, not for approval or disapproval, but just to have the facts laid out for the Board. Commissioner Voltz stated the County Attorney knows what the facts are; but she is not sure that she knows what the facts are at this point. She stated she asked Mr. Knox ahead of time and he said he could come back by March 8, 2005 to give a list of facts so the Board will know. She stated she may perceive something as being a fact, but the attorney may not see it as being a fact; and she may make a decision based on information she thinks is a fact, but is not a fact. She stated at this point she does not know whether or not she could make a decision after hearing both sides, although she knows everyone does not want to come back; but the Board needs to be fair to both sides. She stated it is after 11:00 p.m., and the Board heard six hours of testimony; and to make a decision is going to be very difficult. She inquired is the Board going to base it on all the facts; and stated she does not know.

Commissioner Colon stated they are not coming back; everybody has been given an opportunity to give their facts; and when an applicant comes before the Board, it is not the County Attorney who gives the facts. She stated one of the things that the majority of the Board has agreed on has been to make sure that once there is a denial, which is where she is going to be leading to, that it goes back and asks the County Attorney for a finding of facts; but the finding of facts is basically to put everything together and present it to the Board. She stated at that point the Board just accepts it; it closes the public hearing; and it makes a motion to make sure it is closed because it does not want to be going back and forth. She stated for this case, this is round three; she does not expect to go to round four; everyone has done a wonderful job of presenting the facts; and she definitely will be moving for a denial based on lack of compatibility and the loss of value to an abutting neighborhood. She stated she also will be moving to preparation of finding of facts based on all the evidence that was given this evening.

Motion by Commissioner Colon, seconded by Commissioner Scarborough, to deny the rezoning request of Anthony LaCourt based on lack of compatibility and loss of value to abutting neighborhood, close the public hearing, and direct the County Attorney to prepare finding of facts based on all the evidence that was presented this evening.

Chairman Pritchard requested Commissioner Colon restate her motion. Commissioner Colon stated it was moving for the denial based on lack of compatibility and loss of value to the abutting neighborhood based on the some of the testimony that has been given. She stated the second part would be based on preparation of findings of fact and to close the public hearing. Chairman Pritchard stated he is lost on the second motion; and inquired would the Board not use the finding of facts to determine the decision about denial or acceptance. Commissioner Colon stated this is not the first time the Board has gotten findings of facts. Commissioner Carlson requested Mr. Knox clarify for the Board. Chairman Pritchard stated he cannot move to deny or accept, and then ask for finding of facts. Commissioner Colon stated that is how the Board has done it for years; but she can see that it is confusing. Mr. Knox advised what the Board typically does is make a decision, yes or no, up or down, and then send the County Attorney back to prepare a proposed order, which is what the Board is talking about.

Chairman Pritchard stated it is not a finding of fact but a proposed order that contains facts; and inquired if that was the intent of the motion; with Commissioner Colon responding yes.

Commissioner Scarborough stated there is going to be a difference of facts presented on any of these occasions; that is part of the job; and to some extent, it is for each Commissioner individually, not collectively, to weigh the facts. He stated there can be a split decision; but each Commissioner has to come to a decision on how he or she is going to vote. He stated sometimes he feels stronger and other times he does not feel as strong; and sometimes when he is driving home, he wonders if he voted the right way; but once a motion is on the table, the Board has to vote for or against and proceed forward. He stated the Board does have an opportunity with the finding of facts to come forward and ask to change the finding of facts within the scope of how the whole thing is read, not in the concept of approval of disapproval, but where it goes in the writing of the order that Mr. Knox prepares, so there is a chance to come back and say it wants to say it differently. He stated to go to a finding of facts from the County Attorney, there are going to be both sides coming back questioning whether the County Attorney put all the facts forward; that would lead to round four; round four would not be any better; and it may begin to deteriorate.

Chairman Pritchard stated he is not on one side or the other; he knows some people do not believe that; they all think he has bought into something; but that is how he has always been, not on one side or the other. He stated he read the zoning comments from staff; it says the request appears to be consistent with the requirements of 62-1906 for approval of alcoholic beverages for on-premises consumption. He stated he is glad the Board shied from that argument because he does not think that is the appropriate argument; and he appreciates the Board’s comments regarding that. He stated it was brought up earlier that if they based a decision on a CUP for alcohol, they would not be granting CUP’s. He stated he attended the North Merritt Island Homeowners Association meeting the other night; at that meeting the audience took a poll about another establishment on North Merritt Island, north of Hall Road, which was applying for consideration of a CUP for beer and wine; then the board heard what the audience had to say; and then it voted to support it. He stated the comments he heard were primarily whether the CUP for beer and wine was at an intersection where a neighborhood comes in and out; that was the primary question people had; and because of that, the board supported it and it went on to the North Merritt Island Dependent Special District Board, which also supported it. He stated the issue was the location of the property and the location of the neighborhood; the issue of glare has been addressed; in terms of noise, the inside noise is not the question; but it is a question of what noise there may be outside. He stated the prevailing breeze comes out of the east; the prevailing noise will travel west; and that is where the neighborhood is, so that is a consideration. He stated the increase in traffic is no doubt; even PIP is going to increase traffic; the neighborhood has the unfortunate situation of living behind an industrial park; and there will be traffic coming into that park; but whether that will have an effect on the valuation of properties, he does not know. Chairman Pritchard stated just having PIP there could have an effect; having a billiards establishment with a CUP for alcohol could have an effect; but he is not an appraiser, and relies on what was said, although someone else could come in and say something that is opposite of what was said. He stated the hours of operation are a concern; and he can understand the business plan saying in order to recover the amount of money they are investing in the project, they need to have certain hours of operation, as well as certain components such as billiards, boutique, and other services including alcohol. He stated the prevailing issue is the neighborhood, having one street in and out, noise, and the increased traffic that is going to be created; and that is the driving force behind accepting the denial.

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

 

WARRANT LIST

 

 

 

Upon motion and vote, the meeting was adjourned at 11:23 p.m.

 

 

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