Attendee Name	Title	Status	Arrived
Robin Fisher	Chairman / Commissioner District 1	Present
Chuck Nelson	Commissioner District 2	Present
Trudie Infantini	Commissioner District 3	Present
Mary Bolin	Commissioner District 4	Present
Andy Anderson	Vice Chairman / Commissioner District 5	Absent

.

 

The Board of County Commissioners acts as a Quasi Judicial body when it hears requests for rezonings and Conditional Use Permits.  Applicants must provide competent substantial evidence establishing facts, or expert witness testimony showing that the request meets the Zoning Code and the Comprehensive Plan criteria.  Opponents must also testify as to facts, or provide expert testimony; whether they like, or dislike, a request is not competent evidence.  The Board must then decide whether the evidence demonstrates consistency and compatibility with the Comprehensive Plan and the existing rules in the Zoning Ordinance, property adjacent to the property to be rezoned, and the actual development of the surrounding area.  The Board cannot consider speculation, non-expert opinion testimony, or poll the audience by asking those in favor or opposed to stand up or raise their hands.  If a Commissioner has had communications regarding a rezoning or Conditional Use Permit request before the Board, the Commissioner must disclose the subject of the communication and the identity of the person, group, or entity, with whom the communication took place before the Board takes action on the request.  Likewise, if a Commissioner has made a site visit, inspection, or investigation, the Commissioner must disclose that fact before the Board takes action on the request.  Each applicant is allowed a total of 15 minutes to present their request unless the time is extended by a majority vote of the Board.  The applicant may reserve any portion of the 15 minutes for rebuttal.  Other speakers are allowed five minutes to speak.  Speakers may not pass their time to someone else in order to give that person more time to speak.

 

 

 

Invocation was given by Pastor Jody Wells of Pentecostal Church UPC, Titusville, Florida.

 

 

 

Commissioner Nelson led the assembly in the Pledge of Allegiance. 

 

  

 

County Manager Howard Tipton read aloud a resolution declaring the week of June 26-July 2, 2011, as "National Mosquito Control Awareness Week" in Brevard County. 

 

The Board Adopted Resolution No. 11-127, proclaiming June 26-July 2, 2011, as National Mosquito Control Awareness Week in Brevard County. 

 

MOVER:            Trudie Infantini, Commissioner District 3

SECONDER:     Mary Bolin, Commissioner District 4

AYES:                Robin Fisher, Chuck Nelson, Trudie Infantini, Mary Bolin

 

 

 

Chairman Fisher announced he needed to move the Agenda around to address a letter from the Property Appraiser.

 

Joe Caruso, Attorney to the Brevard County Property Appraiser, stated Mr. Ford asked him to bring forth an item that needs to be brought to the Board's attention; and read aloud the letter from Jim Ford.

 

"Dear Honorable Commissioners: I feel compelled to bring to your attention highly irregular and preferential treatment, which occurred at the most recent meeting of the Value Adjustment Board, on May 23, 2011, which results in a direct violation of the Uniform Policies and Procedures Manual for Value Adjustment Boards, Chapter 12D-9.031.  The County Commission has appointed two Commissioners as representatives of the County Commission to serve as representative on the Value Adjustment Board.  During the course of the May 23, 2011 meeting, which was scheduled to consider the approval of recommended orders of the Special Magistrates, the appointed Commissioners voted in favor of granting unprecedented treatment to several petitioners who personally appeared in front of the Value Adjustment Board.  The Board overturned the recommendation of the Special Magistrates.  This special treatment  allowing review and objections to the  Special Magistrates' recommended order  was not made available to all other petitioners.  The "rehearing" in these cases was held by the Board without any notice to my office, therefore effectively excluded my office from participating in the "rehearing" which is in direct violation of Section 12D-9.031(2) Uniform Policies and Procedures Manual for Value Adjustment Boards. 

 

In each of the three cases given the preferential treatment, the Value Adjustment Board's attorney, David Hancock, advised the Board the recommended orders were in full compliance with Florida Statute 194.301, 194.034(2), and 194.035(1).  Their attorney repeatedly advised the Board that the Special Magistrates' recommended orders were in compliance with the statutory requirements and that the action of the Value Adjustment Board was in violation of the Department of Revenue Rule D-9.031(3) which states '(3) that if the Board determines that a recommended decision meets the requirements of Subsection (1) the Board shall adopt the recommended decision.'

 

By ignoring the advice of their attorney, the Board violated Section 12D-9.031(2) which states 'the Board shall consider whether the recommended decisions meet the requirements of Subsection (1) and may rely on the Board's legal council for such determination.'  There was no flaw in the hearing for the appeal by the original Special Magistrate.  There is no legal authority for the Value Adjustment Board to grant a second hearing before a different Special Magistrate. 

 

The Value Adjustment Board process affords every taxpayer the opportunity to contest the recommended order of any Special Magistrate.  Under Florida Statute 194.036, every taxpayer has the right to challenge an unfavorable ruling by any Special Magistrate by filing suit in the Circuit Court which entitles them to a hearing before a Circuit Judge de novo.  This proceeding allows the taxpayer to present the case before a court completely independent of the proceeding before the Special Magistrate.  The other 1,000+ petitioners who were likely dissatisfied with the Special Magistrates' recommended order have not been and cannot be granted equal treatment before the Value Adjustment Board because the time has run out. 

 

In my letter to the Value Adjustment Board last month, I stated this process needs to be concluded by June 15, 2011, in order for my office to conclude all proceedings attended to the tax roll certification due by law, to all taxing authorities on July 1st of each year.  These legal requirements will now be further delayed due to preferential treatment to a single individual being granted a second hearing before a different Special Magistrate.  This is equivalent to "Special Magistrate shopping," and an additional unnecessary expense incurred by the Value Adjustment Board.  Such "shopping" involves passing the appeal to different Special Magistrates until the desired recommendation is obtained. Furthermore, it did not concern this Petitioner, in the least, to take advantage of such favored treatment to the exclusion of all other Petitioners. 

 

The actions of the Value Adjustment Board with regard to these three cases are in violation of the law for 5 reasons:

            1. All three recommended Special Magistrates' orders fully complied with Section 194.301, 194.034(2), and 194.035(1). 

            2. The Board's attorney advised that the Special Magistrates' recommended orders were in full compliance with the above requirement pursuant to 12D-9.031(2). 

            3. The Board's action in these three cases, are in violation of 12D-9.031(3), which requires the Special Magistrates' decision "shall be adopted", if it is determined that the recommended order meets the statutory requirements. 

            4. The decision of the Value Adjustment Board in granting preferential treatment in these three cases, fails to afford over 1,000 petitioners the opportunity for review which will require them to file suit in the Brevard County Court pursuant to        Florida Statute 194.036.

            5. The actions of the Value Adjustment Board are in violation of 12D-9.031(2) which requires that the Board notify the parties (including the office of the Property Appraiser) that the Board will hold further hearings to consider acting upon the recommended order of the Special Magistrate. 

 

I believe the actions of County Commission representatives on this Board are sufficiently egregious and irresponsible as to warrant their removal and replacement by the Board of County Commissioners for the conclusion of this year and future years.  Their actions highly improper as set forth above, but also contrary to the legal requirements to which all Value Adjustment Boards must follow. 

 

Not only are the Value Adjustment Board's actions highly improper, but also illegal thereby setting the stage for necessary legal action by my office.  However, it does not seem reasonable that I should have to spend tax dollars to enforce the legal operation of the Value Adjustment Board. 

 

Please give this matter your immediate attention at your May 26, 2011 meeting."

 

Mr. Caruso mentioned he is prepared should anyone have and questions, and he will attempt to answer them; if not then he thinks Mr. Ford's letter speaks for itself. 

 

Commissioner Nelson inquired if the Board has the ability to remove Commissioners from that Board.  Mr. Caruso replied he spoke to Scott Knox, County Attorney, earlier today and he believes that he indicated he does not believe the Board has the power to do that; he has not had the opportunity to research that specific issue; and he cannot give a definitive response to the Board. 

 

Attorney Knox informed the Board that Statutes in one place say the Governor has the ability to remove members, and in another place it says the Chairman of the Board that appointed the individuals can replace those individuals with other members of the Board; and it does not specify reasons, but it says that is what can be done. 

 

Mr. Caruso stated with that response, Attorney Knox is admitting that if the appropriate circumstances, the Chairman can make a motion to temporarily appoint new members to the Board. 

 

Commissioner Nelson expressed there are five circumstances here that are indicated that the Property Appraiser believes the policies were not followed and are in conflict with State Law; and questioned what the reasoning was for Commissioner Infantini to believe that she had the ability to ignore those laws. 

 

Commissioner Infantini indicated she is not prepared to discuss that at this time; the Board set aside three out of 2,600 petitions and if there is a Value Adjustment Board (VAB), and it is to approve the value adjustments made, then that must also mean it has the prerogative to not approve them.  She stated it did not feel that three of them should be approved out of 2,600; she will stand by whatever the Board wants, and that if it wants herself and Commissioner Anderson to step down, someone is more than welcome to take the job. 

 

Commissioner Nelson stated the attorney that was selected by the VAB indicated that all of the laws had been met by the Special Magistrates; and he inquired if there was any evidence submitted that indicated they had not followed the law. 

 

Commissioner Infantini stated that she will not be discussing that at this time, but he can continue asking her questions.

 

Commissioner Nelson stated he believes the public would like to hear what the decision making process was that got the Board to this point where it is being threatened with a lawsuit. 

 

Commissioner Infantini stated the VAB overturned three of the decisions made by the Property Appraiser and he is not pleased that it overturned three of the decisions; and he believes contrary to what she believes. 

 

Commissioner Nelson stated he and Attorney Knox had an opportunity to discuss this and his understanding from that conversation was that the appropriate method, and is contained in the letter, would have been for these three petitioners to take that issue into the court system because that is how that system is set up; but it was not done that way.  He inquired if the correct methodology been for this to go through the courts. 

 

Attorney Knox stated that is one way to do it, another way to do it is the VAB has the authority to hold hearings on specific applications for assessment also. 

 

Chairman Fisher stated Mr. Ford makes reference that he should have been invited to the meeting; and inquired if he was invited to the meeting. 

 

Commissioner Infantini stated he has been invited to every one of the VAB hearings and his office has chosen not to attend; so there was no way to rebut any of the information provided.  She noted the VAB has scheduled within his time frame constraints and he has asked the Board to have its hearings not later than June 10, 2011, for the Special Magistrate and the final hearing not later than June 13, 2011; and the Board has agreed to comply.  She went on to say that everyone was eligible to bring their case forward, but only three chose to.

 

Mr. Caruso stated he would respectfully disagree with Commissioner Infantini; the procedures that are have been promulgated by the Department of Revenue (DOR) are clear that if the VAB is going to entertain a petition from a petitioner who has had their case heard by a special magistrate, and the VAB is going to consider sending it back to the special magistrate for further consideration, that a written notice needs to be sent to the Property Appraiser with the time and date of that meeting; and it was not done in this case. 

 

Commissioner Bolin stated that she is deeply concerned because it seems the policies and procedures are very clear in this and the Board is in a situation where it is at a standstill; and in Mr. Ford's letter he made some statements and things that he would like to see done to not have a lawsuit put against the VAB; and inquired what Attorney Knox's suggestion would be to the Board. 

 

Attorney Knox stated if Mr. Ford is trying to avoid a lawsuit, he has not really thought about that; but the Board has a situation where the VAB has denied the Special Magistrates’ recommendation on three cases; and the only option Mr. Ford has under the statute right now is to file suit to get that decision overturned.  He went on to say that if the VAB reconvenes to reconsider its actions and changes its mind that is one avenue available; apart from that, the VAB is in control of its own decision making; and if it makes a wrong decision, the Court's decide if it is wrong. 

 

Commissioner Bolin inquired if there was anything the Board of County Commissioners could do to urge the VAB to reconvene to take back its decision. 

 

Attorney Knox stated the VAB has a meeting scheduled sometime in June, as he understands it; and the Clerk is sort of reconvening the meeting in June sometime before the 15th.  He noted the VAB could take it up at that point in time. 

 

Commissioner Nelson stated it occurs to him that if the process allowed for the VAB to go to another Special Magistrate, and this time the opinion comes back separately, then it would appear that this process could go on forever because the next Special Magistrate on that same issue could rule differently and this thing would never end; and he believes that is why the process is that once that ruling has been given, the recourse is the court system, and that is the final rule.  He noted he does agree it looks like magistrate shopping, in effect, because there can be no end to it, regardless of who the prevailing party is, the other party is going to think that they did not get the best deal.  He went on to say that he is extremely concerned that the VAB went this direction and Commissioner Bolin and himself have both served on the VAB and taken it seriously; not that the other members did not, but certainly would have never done anything that was outside of what the Policies and Procedures and Law state.  He advised he does not have a great deal of confidence that continuing with the VAB as it is constituted is going to get the Board any further along.  He noted he would like to hear what the other Board members feel about replacing those two members until this issue is resolved. 

 

Commissioner Infantini inquired if her only choice is to approve all of the special magistrates decisions before her, and if her only choice is to approve it, why is there a choice; and stated it defies logic.  She inquired if there is no choice to be made, why is there a VAB to approve it, because what if there is an outside chance that it does not approve; and stated if it does not approve then the VAB gets brought to court.  

 

Commissioner Nelson stated the original choice was to use special magistrates or hear all 2,000 cases by the VAB; that was the choice; and that was the moment where the VAB could have heard every one of those. 

 

Commissioner Infantini stated they could have come before the VAB; it never stopped anyone; and all of the meetings are published. 

 

Commissioner Nelson stated the point is when the choice is made to use special magistrates, which State Law allows to do, then they have to run through that process and basically the evaluation at that point becomes did the special magistrates follow the law.  He stated if the answer is yes, they followed the law, then the VAB approves it and the court settles any disputes.  He added if the VAB had wanted to hear all 2,000 petitions, make that decision, someone still disagrees with it, and then goes to the court system.  He advised all he is saying is that there is one choice the VAB makes at the beginning of the process, and it is between hearing them all, or having a special magistrate hear them.  He advised the VAB chose the special magistrates that put the VAB in the process where it only has the ability to relate to whether the law was followed or not; that is his understanding; and inquired if that was correct. 

 

Attorney Knox stated the way it is structured, the special magistrates have to hear these cases; that is the law the way it currently exists; they make a recommendation to the VAB; the VAB looks at the recommendation and compares it to the statutes and rules that govern how those recommendations are supposed to be provided; and if they match up, and the VAB can rely upon its attorney to say they do or do not match up, then the VAB is supposed to approve the recommendations.  He went on to say if the VAB finds there is some reason that there is a deficiency and it does not match the rules and regulations then it can overturn the decision and send it back to the Special Magistrate, the Property Appraiser, or there is sort of a general clause that allows them take whatever action is required to make the decision comport with State Law.  He noted it is not as clear cut as he would like it to be.

 

Chairman Fisher inquired if there is a special magistrate, the petitioner, and the Property Appraiser sit at a table at one time.  Mr. Caruso replied yes, and any witnesses that the parties bring to testify.

 

Chairman Fisher inquired if everyone presents their side of the case, and if the special magistrate is a neutral party listening to both sides of the case, acting as a judge, and once the facts are out, he makes a ruling as to what the value should be. Mr. Caruso replied the special magistrate's ruling has to recite a determination of facts and the conclusions of law that result in his recommendation.  Chairman Fisher inquired if the special magistrate has legally set the tone for why his recommendation is what it is; and if the VAB attorney was present for the hearings as well.  Mr. Caruso responded, yes.  Chairman Fisher inquired if the attorney advised the VAB that everything was in compliance.  Mr. Caruso stated the VAB attorney repeatedly advised the VAB that the recommended orders in these three cases satisfied all of the requirements of State Law that it was required to satisfy. 

 

Commissioner Infantini stated according to the attorney's opinion they were satisfied; but according to the opinion of four out of five of the VAB members, they were not satisfied, which is why an attorney's opinion, when basing it in fact is one thing, but looking at an opinion, it is just that; and everyone can disagree on opinion.  She went on to say unfortunately, four out of five VAB members disagreed with the attorney’s opinion in three cases; that is why the cases were overturned; they are allowed to go back to circuit court, but for most people it is cost prohibitive to fight a $200-$500 tax bill and take it to circuit court; and the VAB waived the cost and the benefit and thought rather than have them go to circuit court the VAB would handle it there.  She stated the VAB allowed the homestead exemption on two pieces of property and another one required it to value a piece of property that was somewhere in the range of $700,000 to $1 million; it was determined that was out of the VAB's ability because the members are not appraisers, and did not think the way the special magistrate came up with his analysis was appropriate, so it was turned back to a special magistrate; the VAB members know they are not property appraisers; and the VAB members can have an opinion, and it did differ from the lawyer.  She added, some of the wording is getting lost in the translation from somebody who was there to somebody who was listening to a tape.

 

Chairman Fisher stated what he does not understand how there was different treatment given to different people if everybody is supposed to have the same process.  Mr. Caruso stated the hearing was held was for the purpose of adopting all of the recommended orders.  He inquired how these three people knew to appear before the VAB and ask to re-argue their case, which is exactly what they did.  He stated they wanted a second hearing, and the VAB proceeded to conduct a hearing not under oath, while the attorney is saying the recommended order has satisfied all of the requirements of State Law; and the VAB then saying that it is going to do what it wants to do, not being lawyers or property appraisers.  He added, the VAB did not know what evidence went before the special magistrates, and had not reviewed the evidence before the special magistrate or anything else to see if the magistrates' findings of fact are correct; whether the conclusions of law are correct; but decided that the VAB did not like the decision.  He added that is basically what the VAB Board did, they did not like the decision on these three cases and overturned them.

 

Commissioner Infantini stated the reason the three petitioners attended on May 23, 2011, was that they attended the meeting that was held in March and the VAB told them it could not do anything, or conduct the hearing at that time, and that they would have to come back to the May 23, 2011, meeting; and that is why they came back two months later and again went through the process.  She stated two of the three individuals spoke at the March meeting; and the VAB told them that was not the date to hear the cases, and that they needed to come back at the final meeting. 

 

Mr. Caruso stated he is not saying that was not true, but none of the other 2,652 petitioners got the invitation to come back to the May 23, 2011, meeting.  Commissioner Infantini stated they did not ask.  Mr. Caruso stated they did not get a rehearing, which is exactly what the VAB gave to the other three petitioners, which resulted in the preferential treatment. 

 

Chairman Fisher stated Commissioner Anderson's Aide, David Isnardi, would like to make comment; and inquired if that is acceptable. 

 

Commissioner Infantini stated the Board  should begin the Zoning meeting, as there are people present who thought their zoning requests would be heard at 5:00 p.m.  hairman Fisher stated he did not plan on starting the meeting this way.  Commissioner Nelson stated if Commissioner Infantini did not have problems following the law, the Board would not have had to discuss this at all.  Commissioner Infantini stated the VAB did follow the law; and added that maybe they should go to court to hear whether or not the VAB followed the law.  Commissioner Bolin stated the Board is trying to avoid a lawsuit.  Chairman Fisher stated that is correct, the Board is trying to avoid a lawsuit; and added that Mr. Isnardi would like to speak on behalf of Commissioner Anderson.  Commissioner Bolin inquired if Mr. Isnardi was going to be in the opinion of Commissioner Anderson in what he is going to state.  Mr. Isnardi responded yes. 

 

David Isnardi reported Commissioner Anderson sent his apologies to the Board; he understands the importance of what is going on here tonight; added that his office did not get notice that this was going to be on the Agenda for this evening either; when Commissioner Anderson found out this was going to go on, he asked Mr. Isnardi to say a few words on his behalf; and he appreciates the time.  He added that anyone who comes before this Board and doubts Commissioner Anderson's integrity is blatantly wrong; everyone on the Board knows who Commissioner Anderson is and he is a man of the utmost integrity; for him to be ambushed like this, without proper notice that his integrity was going to come in question, is dead wrong and the Board should not hear anymore of this tonight; and Commissioner Anderson should be allowed to be sitting with the rest of the Commissioners to defend himself against people like Mr. Caruso.  He stated Commissioner Anderson stands next to any decision he has ever made, whether it was with the Board or against it; and he has stood for it 100 percent. 

 

Chairman Fisher stated there is a situation where the Property Appraiser has requested the Board make some type of an adjustment and there is also a question of a possible lawsuit; and inquired what Attorney Knox's recommendation would be.

 

Attorney Knox stated if a lawsuit is filed, it will not be against the Board of County Commissioners, it would be against the Value Adjustment Board; and he would not be concerned about that.  Chairman Fisher inquired if the Board defends the Value Adjustment Board.  Attorney Knox stated the Board pays for the Value Adjustment Board. 

 

Chairman Fisher inquired if the taxpayers pay for the VAB.  Attorney Knox responded, yes.  He went on to say the VAB meets again before June 15th, according to his information; and the only option Chairman Fisher has is to either wait for Mr. Ford to do something and try to stop that, or take some other action that he deems appropriate.  He added, the Chairman has the authority to replace the two Commissioners if he chooses to do so.  Chairman Fisher questioned if that would stop a lawsuit; and if not, what it would do. 

 

Commissioner Infantini pointed out Mr. Ford does not have to file a lawsuit, as it is only two homestead exemptions, and maybe $100,000 in property value.  She noted it is not $1 million; and the choice is his to file or not file, but he is making it sound like his hands are tied. 

 

Chairman Fisher noted there are two attorneys, a special magistrate, and a representative from the Property Appraiser's Office; the VAB attorney stated the act was improper; and questioned if those are the facts; and if Commissioner Infantini is willing to realize that maybe these people are correct, she would reverse her decision and go with the special magistrate's recommendation.  He stated that would be a remedy and the Board could move on; and inquired if Commissioner Infantini was going to stay in the mode that she does not agree with the special magistrate.  Commissioner Infantini replied she would need to confer with the VAB; and she would not make a decision at this point. 

 

Chairman Fisher inquired what the desire of the Board is,and if the problem would be solved if the VAB would agree with the special magistrate.  Mr. Caruso replied certainly, if the VAB reversed its decision; but obviously the problem could be solved if other Commissioners were appointed to the VAB on June 13, 2011, which Attorney Knox has advised; and the problem could be discussed and corrected. 

 

Chairman Fisher stated he would agree with the desire of the Board was.  

 

Commissioner Nelson questioned if members of the Board assume those positions and sit as VAB, if the three citizens lose their rights.  Mr. Caruso responded the three citizens do not lose any of their rights; if the action that was taken by the VAB was not legally proper, at some point it will get reversed and sent back by lawsuit or otherwise.  He believes the real question is if there are two Commissioners that sit at the June hearing that were not there before and review the special magistrates' recommended orders, findings of fact, conclusions of law, and get the advice from the VAB attorney, he believes it appropriate at that point to then make a determination either to uphold the original decision of the VAB and Commissioner Infantini, or to reverse it. 

 

Commissioner Nelson stated he is uncomfortable with where the Board is now; and he believes the law is very clear about what is supposed to be done; and he is troubled that there are Commissioners that avoided listening to the attorney as far as what the law states.  He stated the VAB attorney basically agrees with what the Property Appraiser has said; the Board has two attorneys that have agreed as to what the process is and should be; and by the Board replacing those two members, and if it is indeed overturned, those citizens still have the opportunity to go to court. 

 

Mr. Caruso responded they absolutely have that ability; and if they are unhappy with the decision then they can go to court. 

 

Commissioner Nelson stated based on that he would be willing to replace those two Commissioners.  Commissioner Bolin stated she will be out of the country on that date. 

 

Chairman Fisher stated there is a motion and a second for discussion; and inquired what the dates were for the meeting.  Commissioner Bolin replied June 13, 2011.  Chairman Fisher stated that he would have to serve on the VAB with no previous experience.  Mr. Caruso stated it would be a good experience. 

 

Chairman Fisher stated the purpose for the two new Commissioners is to agree with the law that has been set in place; and inquired if they get a chance to dispute it.  Attorney Knox responded they do get a chance to dispute it; an attorney can have an opinion as to whether or not the special magistrate conformed to all of the requirements of the law and appraisal standards of the law in order to get to the evaluation determination; but if the VAB decides that the special magistrate did not conform to some part of the law, for example, if he used comparable sales that were in Osceola County versus Brevard County, then the VAB could say he did not abide by the appraisal standards and something needs to be done to reject that recommendation; and then there are certain things that can be done at that point. 

 

Commissioner Infantini thanked Attorney Knox for mentioning that; one of the properties in question is in the middle of Indialantic, the Property Appraiser's Office used two pieces of riverfront property in Rockledge as comparables; the subject property is not waterfront, it is a large house inside the Town of Indialantic, not on any body of water; but instead of using property inside Indialantic, or somewhere close, the Property Appraiser's Office went 25 miles north to the town of Rockledge, found waterfront property, and compared it to that.  She stressed it was not one, but two pieces of waterfront property; and then the Property Appraiser's Office went to Lansing Island and used a piece of waterfront property there; and they wanted the VAB to accept those comparable's.  She added she has done enough audits on EELs property to know what is comparable and what is not; and if something that is not comparable is used, then a value adjustment needs to be made.  She expressed if the Board does not like her decision, she is not going to reverse it; she stands by her decision and her principals; and if someone else can do a better job, they are more than welcome to it.  She stated if only one person's opinion counts, whether it is an attorney or Commissioner, then why have an entire; and stated there were four people who agreed with her same frame of thought. 

 

Mr. Caruso responded the question is not whether or not there can be an opinion; but the opinion has to follow the law; and stated that is the issue. 

 

Chairman Fisher questioned what factors were used to come up with the opinion. Commissioner Infantini stated those were her factors, that the Property Appraiser's Office did not use comparable properties.  Chairman Fisher inquired what property Commissioner Infantini used.  Commissioner Infantini replied she could not determine the value because she is not an appraiser; but she knows what is fair and just because she lives in that community.  She stated the VAB told them on that one piece of property out of the three in question, one has to go back to a special magistrate because it is out of its purview to determine valuations; and she is not an appraiser, but she knows logical and illogical.

 

Chairman Fisher inquired if there was a value set on the property that was in question.  Commissioner Infantini replied no, the VAB could not set a value because it did not know the value; so it was sent to a special magistrate to be reheard, whether the value is higher or lower than the original special magistrate determination; and at that point, if comparables are being used they are getting an appraisal.  She explained the VAB reversed the homestead exemptions because it thought the Property Appraiser misinterpreted the intent of the law; and the VAB followed the letter of the law as posted on the Property Appraiser's website as to what it takes to be a homesteaded individual in Brevard County; and the petitioner met that. 

 

Commissioner Bolin stated she believes there is more to it than just that; and stated there cannot be two homesteads.  Commissioner Infantini stated the petitioner does not have two homesteads, she has one.  Commissioner Bolin responded that is the thing, the special magistrate looked at all of the evidence and determined legally that she did. 

 

Commissioner Nelson explained the other part is that there was no one from the Property Appraiser’s Office there who actually presented the other side of the testimony to be able to respond to that; so the VAB took one side of the story without the benefit of the other side and made a decision; and he is unsure how that is fair.  Commissioner Infantini stated Mr. Ford chose not to attend.  Commissioner Nelson inquired if Commissioner Infantini would have had Mr. Ford bring 2,600 files to the meeting because of the fact that someone might show up.  Commissioner Infantini noted Mr. Ford's office is next door to the Commission Room. 

 

Commissioner Nelson stated the staff that attends the special magistrate hearings may not have been next door, they may have been on vacation and did not know it was coming; they were blindsided by that person showing up; and he does not know how Commissioner Infantini can listen to one side of a story and think that is fair.  Commissioner Infantini reiterated Mr. Ford had the choice to attend, but chose not to attend any of the VAB meetings. 

 

Mr. Caruso stated the regulations require that if taking some action on one petitioners case, with regard to the recommended order of the special magistrate, written notice needs to be provided to the Property Appraiser for the case that is to be reheard; and that was never done.  He advised Commissioner Nelson is correct, the Property Appraiser never got the opportunity to argue or present evidence as to why the special magistrate decisions were correct. 

 

Commissioner Nelson stated he would modify his motion to appoint himself and Commissioner Fisher the Value Adjustment Board for the remainder of this term. 

 

Attorney Knox advised Chairman Fisher has the ability to make the appointments as the Chairman.

 

Chairman Fisher noted because Commissioner Anderson not being here to state his personal side of the story and how this happened, he is unsure of how to handle this; and he feels bad that Commissioner Anderson is not there to defend his position.  He added, the Board knows where Commissioner Infantini is, and inquired if there is a need to replace both Commissioners.  Commissioner Nelson responded if they both stand by their decisions then there is still a 3:2 vote. 

 

Chairman Fisher stated he is unsure if the other VAB members are privy to what is actually happening here, now that the Board is in this scenario.  He stated he believes Commissioner Infantini is going to stay where she stands on the issue, and Commissioner Anderson is not here; and inquired if both should be replaced or just one. 

 

Commissioner Nelson stated he believes that nothing is accomplished unless both are replaced; and inquired if the date could be accelerated to accomplish that. 

 

Mr. Caruso stated the Property Appraiser's Office is willing to accelerate it to any date the Board desires, as long as it is done prior to June 15, 2011, which is the State deadline that is mandated.   He stated they are prepared to do it on two or three days notice. 

 

Commissioner Infantini stated she believes the other VAB board members are not available prior to that date, but she is not positive.  Chairman Fisher stated the date of the final meeting is June 13, 2011.  Mr. Caruso inquired if the date was correct.  Attorney Know responded he saw something about two dates, one was June 10, 2011, and the other was June 13, 2011, but he is unsure of which one got picked, or who is sending out the notices. 

 

Chairman Fisher inquired if he needs the Board's opinion on this.  Attorney Knox replied that Chairman Fisher has the ability to make that decision.  Chairman Fisher stated it is his call and he could make that decision tomorrow or the next day. 

 

Chairman Fisher advised after looking at calendars he will make a decision. 

 

 

 

Christine Lepore, Assistant County Attorney, stated Florida Power and Light is requesting an amendment to extend the closing date until the end of June for the Contract for Sale and Purchase of property that is adjacent to the Cruickshank Sanctuary; and informed FPL that the Chairman would have to sign an amendment to effect that extension. 

 

Commissioner Nelson stated he would second, but he would like it extended only until June 12, 2011; because if another problem arises, there is not a Board meeting.

 

The Board approved extending the closing date for the Contract for Sale and Purchase with Florida Power and Light Company for the property adjacent to the Cruickshank Sanctuary to June 12, 2011; and authorized the Chairman to execute the Amendment. 

 

 

  

 

Chairman Fisher called for a public hearing to consider Planning and Zoning Recommendations for May 9, 2011, as follows:

 

Cynthia Fox, Planning and Enforcement Manager stated the request is for a Conditional Use Permit for Towers and Antennas in a PUD zoning classification, with waivers to setbacks from all of the property lines.  She advised staff received a letter from the applicant requesting to table the item, but it is not an automatic tabling because it was tabled previously.

 

Rapheal Hanley, The Viera Company, indicated they are requesting a continuance; the original layout for this was just to be a ground lease between them and Verizon; the transaction has gotten more complicated with the joint venture and having to do different agreements, and they are just not ready with them yet to actually sign all of the documents; and he is hoping they will be ready by August to do that. 

 

Ms. Fox stated August 4, 2011, is the next Zoning meeting. 

 

There being no further comments or objections, the Board approved tabling the request for a Conditional Use Permit for Towers and Antennas in a PUD zoning classification, to the August 4, 2011 meeting.

 

 

 

Cynthia Fox, Planning and Zoning Enforcement Manager stated the request is for a zoning change from BU-1 to BU-2; and noted the applicants voluntarily submitted a Binding Development Plan to limit the BU-2 uses. 

 

Carmine Ferraro stated he is present on behalf of the applicant to make a request for two buildings located at 3700 and 3704 U.S. Highway 1.  He stated the property is located approximately one-half to one-quarter of a mile from Cidco Industrial Park, on the east side of U.S. Highway 1.  He stated everyone knows about the bad economy and where real estate sits with the market, along with the major hit that commercial real estate  has taken in the past few years, which is compounded by the space center layoffs.  He advised the building has been vacant and on the market for over six years; and five well known commercial realtors have tried to sell it, Michael Selig, Kaiser, Cornerstone, Vincent Keenan, and currently Heartung Realty.  He explained the owner has been trying really hard to sell this property, and the price has been reduced seven times; it started out at $799,900 for each building, and now it is down to $399,900 per building; incidentally, the owner paid over $1 million for both buildings.  He noted the buildings have been consistently vacant over the last six years; the last time the owner had a tenant was over three years ago in one of the buildings.  He stressed there have been upkeep costs, real estate taxes, and mortgages; the high vacancy has led to high vandalism, with people taking parts out of the air conditioners and sometimes the entire air conditioner; and there have been several other instances of vandalism.  He stated it could be a viable property sitting on U.S. 1 that is just going to waste; the catalyst is the lender pressure that a lot of commercial owners are experiencing as the lenders continue to try and work through these things; and basically, they have run out of options and see this as a last resort.  He advised there have been no offers made to date; if an offer were made today, at the current asking price,  the owner is prepared to suffer the loss and sell the property; but there have not been any offers.  He stated they are looking to change both buildings from BU-1 to BU-2; and the reason they would like to do that is to increase the value and salability by expanding the uses of the two properties; some of the limited interest that has been going on over the last six years included people who wanted a BU-2 use, but they were dismissed because the property was zoned BU-1.  He mentioned a second possibility is this owner would sell his existing facility on Williams Point Boulevard, in a nearby commercial area, and move his business to one of the two buildings, but in order to do so, he would need BU-2 zoning.  He stated he was hired as a consultant to evaluate the situation, which is what he does with his experience in commercial real estate as a developer and as a commercial real estate broker; and the first thing he saw was the proximity to a residential area.  He stressed prior to making an application, there were two public meetings with the local residents; and at the first meeting there were eight property owners from the adjoining residential area who showed up, and he received two phone calls.  He informed the Board there was good input and concerns were discussed about what types of businesses they were vehemently against living next to, and what type of uses they would approve of.  He added the idea of that meeting was to reach a consensus so at the next meeting they could present the residents with prohibited uses within the BU-2 zoning, since it is much denser in some respects, although in going through the process it shares a lot of similarities.  He stated they decided to go ahead and have the second meeting, and at the second meeting there was consensus; and he says that because no one showed, but he received four phone calls; and those four phone calls were happy phone calls such as, thanking them for doing that, or thanking them for considering them as residents in this process.  He noted there are staff comments in terms of being compliant with future land use regulations; and there is no impact to traffic.  He stated at the Planning and Zoning meeting the request received unanimous approval with the support of a binding development plan (BDP); and now he is before the Board asking to go forward with the recommendation of the Planning and Zoning Board and approve the BU-2 on both properties.  He advised the BDP will prohibit major automotive repair, bottling beverages, outside kennels, dry cleaning plants, feed and hay for animals and stock, fertilizer stores, meat markets, paint and body shops, pet kennels, seafood processing, sharpening and grinding shops, welding repair, except metal fabrication, and will also prohibit railroad, motor, truck, and water freight, passenger stations, and recovered materials processing facilities. 

 

Commissioner Nelson stated he wanted to clarify that the Planning and Zoning Board approved the request with a BDP limited to the uses stipulated; a BDP does not limit to stipulations; it basically takes out uses, so this is a little different; the applicant should list all of the things they are going to do, rather that the things that they cannot do; and inquired what the intent was. 

 

Ms. Fox stated she believes the Planning and Zoning Board was looking at is a list of uses that the applicant was taking out.  Commissioner Nelson stated it was not intended to say this is what they are going to do, it was to say what they cannot do.  Ms. Fox stated the applicant has now submitted a format that is the traditional BDP format. 

 

There being no further comments or objections, the Board approved the request by Paigko, LLC, as recommended by the Planning and Zoning Board.

 

Chairman Fisher commended Mr. Ferraro for meeting with the neighbors and working out the issues. 

 

 

 

Cynthia Fox, Planning and Zoning Enforcement Manager stated the request is for a Conditional Use Permit (CUP) for alcoholic beverages for on-premises consumption in a BU-1 zoning classification. 

 

David Volk, representing Vincent Keenan, distributed handouts to the Board. 

 

Chairman Nelson stated that he met with Vincent Keenan, Chelsea Keenan, Ms. Whitehead, Ms. Gilbert, Ms. Bradley, and Mr. Pacelt. 

 

Commissioner Infantini stated she met with Mr. Keenan. 

 

Mr. Volk stated the applicant would like to operate a business called the La Java Room; he applied for a specific Conditional Use Permit (CUP) within the applicable zoning classification; and all applicable criteria and standards have been met.  He noted an Ordinance governs CUP’s, Section 62-1901, and if the burden is met to comply with those standards, the criterion shifts to the Board to deny it by substantial competent evidence.  He noted there were some concerns raised at the Planning and Zoning Board hearing; a number of those concerns have been dealt with by the applicant; and they will address that in the evidence.  He advised Section 62-1901(a) of the Code of Ordinances permits a bar/cocktail lounge serving alcoholic beverages for on-premises consumption to be a conditional use in a general retail zone; the classification on the subject property is BU-1; and the CUP should be approved because there is no substantial competent evidence that can be offered to show that this would have a detrimental effect on the community within the conditions of the Ordinance.  He noted denial would be without substantial competent evidence that would constitute departure from the essential requirements of the law.  He added at the bottom of the summary are benefits to the County; Mr. Keenan has been a valued citizen of Brevard County, particularly Cape Canaveral, in the real estate field, for over 30 years; he has redeveloped a lot of property to make them better uses; and he is also a real estate expert and can offer expert opinion that would show that this would actually improve the values in the area, and that real property values in the area would be hurt if the application was denied.  He pointed out the nature of this particular use is not just a typical bar, it is going to have an upscale theme to it with a focus on art, and will be careful about who is allowed on the premises.  He stated in the packet there is a review worksheet, a survey of the property, and written and online petitions; there are close to 400 people in the community that have written or signed petitions, or who have filled out a petition online to say that this is a valuable addition to the community. 

 

He stated there are many citizens who would like to speak in favor of the applicant; and pointed out that at the Planning and Zoning Board meeting, there were no findings of fact, they heard from some neighbors and took a vote. 

 

Chelsea Keenan advised she knows it is a privilege to obtain a CUP; and she has made it her highest priority to show that she and her father have not only met the criteria for the permit, but have gone above and beyond to make sure they are not hindering the quality of living for the residents nearby, and that they would be an asset to the community.  She advised La Java Room is located in Cape Canaveral at 6600 North Atlantic Avenue on the corner of A1A and Garfield Avenue; and it is a unique 40-seat lounge that serves as an intimate, upscale venue catering to those with a taste for art, music and spirits.  She added it is a platform for local artists to display their paintings and showcases; the goal is to offer the community a place where creativity, ideas, and people can come together to share and support arts in a social setting; and La Java Room will also offer 22 new job opportunities in addition to the 70 jobs sustained by Vincent Keenan Realtor-owned businesses in Brevard County.  She outlined a few things from the first hearing that raised concerns and re-addressed them; La Java Room is requesting a CUP not a rezoning; La Java Room has a 40-seat capacity and has double the required parking spaces, which is 14; the deck was originally being built at ground level but has been disassembled due to permitting conflicts; and the entire back of the premises will not be used for business purposes.  She advised as far as the internet cafe, it was originally placed in La Java Room to provide tourists with access to the internet and email; and this service is similar to the Wi-fi found in airports, McDonalds' across America, and citywide access, such as Orlando, Florida; the service would not have permitted any pornographic material or gambling of any kind, which was a concern at the first hearing; for economic reasons, the internet service and computers have been moved to another location; the hours of operation are 8:00 a.m. to 2:00 a.m.; and these hours of operation are within County regulated operational times and coincide with competing businesses in the area.  She added as the La Java Room was remodeled, special considerations were taken into account including sound and fire retardation to the interior walls; the music will be limited to a juke box and an online provider, not backyard live music; there will be no smoking inside the building, and in the site plan it is limited to the north end of the building and will be secured off by fencing; and it will be watched by the front door security. 

 

Vincent Keenan, Vincent Keenan Realtors, LLC, stated he is a real estate expert; and after 33 years in the business, and over 15 properties that he has remodeled and brought up to standards well above what they needed to be, he is doing this renovation with the utmost concern for the residents.  He advised he is opening a high-level, up-scale venue in this location; he has renovated many properties that were vacant; he refurbished them and brought the businesses up to standards with beautification awards; and the people can see all of his business activities of all of his locations. 

 

Mr. Volk inquired how many businesses Mr. Keenan owns and operates.  Mr. Keenan responded he owns and operates nine businesses in Avon by the Sea and the City of Cape Canaveral.  Mr. Volk inquired how long he has resided in the area where this use is going to occur.  Mr. Keenan responded he owns property on Garfield Avenue and is always looking to make his real estate values go up; he is not one that wants them to go down; he owns nine buildings on A1A and are all occupied by businesses; and some of the business owners are here today to testify how he takes care of businesses and the way he works.  Mr. Volk inquired how long he has been a licensed realtor.  Mr. Keenan responded he has been a licensed realtor for 32 years and has lived in Cocoa Beach for 35 years. 

 

Mr. Volk inquired what Mr. Keenan has done in terms of purchasing and renovating real property in this area of Brevard County.  Mr. Keenan responded he has taken down four crack houses in Cape Canaveral and removed two massage parlors in the last 20 years, and has turned them into viable businesses; and his is also active in the rehabilitation of the City of Cocoa. 

 

Mr. Volk inquired what type of employment the CUP would provide.  Mr. Keenan replied it will create approximately 22 new jobs.  Mr. Volk inquired what impact the use will have on real property values in the adjoining area.  Mr. Keenan pointed out this $1 million nightclub facility will bring the property values up substantially in that area.  Mr. Volk further inquired about outside service of food or drinks, a deck, or music.  Mr. Keenan responded there will be no outside activity at all; the building has been sound-proofed by professionals and fire-proofed with fire-retardant; and also, under the advice of Commissioner Nelson, they have moved the smoking area from the rear of the property to the northwest side where it can be controlled security.  He reiterated it is a door-man facility with 24-hour internet coverage of the inside of the property; and clarified he has moved the smoking section beside Avis Rent-A-Car. 

 

Mr. Volk further inquired if the proposed use was as good, or better, than the use of the existing business.  Mr. Keenan responded the business that was there was Thunderbolt Fireworks, it just came out of a 10-year lease; and he understands the opposition they have about the fireworks stores in the County.  He added he has been moving them out, renovating the buildings, and turning them into something that is viable; and it will create a lot more job.  He mentioned a lounge and art venue hires a lot more employees than one guy sitting behind a fireworks business shipping them out through Fed-Ex; and that is the difference. 

 

Commissioner Nelson stressed what he said when they met about the smoking was that, historically he has had a concern with CUP's adjacent to residential areas and that concern was the activity at the back of buildings adjacent to residential.  He stated Chelsea Keenan suggested it could be moved to the front; and clarified that he did not tell them where to put the smoking section. 

 

Chairman Fisher inquired if there was a deck in back of the building.  Mr. Keenan replied he was constructing a ground-level deck, under 36 inches; based on zoning requirements, it does not need a permit; but he was told by County staff that it was not clear and that he may want to get a permit on it.  He added he applied for a permit on the deck the Building Department suggested a complete site plan; and because of that he moved the deck and internet cafe to the location of his new restaurant, Vinny's Hot Dogs, in Cape Canaveral.  He inquired what the difference would be if they were sitting or walking on grass rather than a deck, as it was just enhancing the physical appearance to the property; but it has been removed. 

 

Chairman Fisher inquired about outside activities.  Mr. Keenan replied there will be no outside activities; he will probably come back to the Board at some point when the business is successful with a new site plan and put parking in the back and move any outside facilities in the front with a binding development plan and complete site plan review with the County. 

 

Chairman Fisher inquired what is the use on this facility today.  Ms. Fox responded it is BU-1; and any type of retail store can be done in such a zoning classification.  Chairman Fisher stated he could do that without a zoning change.  Ms. Fox replied he could do that in a coffee house without alcohol at this facility, or an internet cafe without alcohol.

 

Mayor Rocky Randels, Cape Canaveral, stated he would like to acquaint the Board with the applicant.  He noted he has known Mr. Keenan for most of the 30 years that he has been in Cape Canaveral; stated Mr. Keenan is a resident of Cocoa Beach; he is not a voter, but he has been a licensed realtor for over 32 years; and Mr. Keenan has purchased and renovated many of the less desirable residences; he owns and operates nine businesses in the City of Cape Canaveral; and he has restored 11 of the buildings that were less desirable into something more desirable.  He pointed out Mr. Keenan has improved properties structurally; and economically, his businesses employ around 70 of Cape Canaveral's residents that do not have the skills needed to go elsewhere, except perhaps to business with routine daily work.  He noted the businesses Mr. Keenan has created have provided work for the residents of Cape Canaveral; and stated it is his expectation that there will be more job opportunities for another business in the city.  He stated he is not there to speak for or against the zoning, but he thanks the Board that for the privilege of being able to converse with it; he believes Mr. Keenan is a good person in the City; and if anyone wants to come in and create some more businesses and jobs they are welcome. 

 

Chairman Fisher disclosed that he was speaking with John Brazee on another matter and this topic came up. 

 

John Brazee stated he is one of the owners of the property at 152 Garfield Avenue, immediately adjacent to the subject property; the home is a family estate owned by his brothers-in-law and sisters-in-law; and it is used as a vacation home for the family to come to Florida periodically.  He noted the family has owned the house for 50 years; and when the house was purchased there was nothing on the subject lot.  He added during that period of time, a gas station was built and turned into a used car lot, and there was a fireworks store, and a coffee house.  He advised his family has lived quietly adjacent to Mr. Keenan’s property all those years with no complaints, not even when it was painted hideous yellow; but it was only his family’s opinion, so they let it go.  He stated Mr. Keenan wants to use this property as a club or bar and wants a liquor license; obviously, his family is concerned about their property values; his family is also concerned about the noise, especially when the deck was built, which led he and his family to believe that he did not feel the building was big enough to support the activities on that site; and he agrees with that.  He advised the deck has not been removed; he saw some workers out there working on it a little bit; but the foundation of it is still there; and he is concerned about parking, but certainly not against development or jobs.  He stated when the parking issue was brought up before the Board, Mr. Keenan said there will never be any more than two or three employees there at any one time; and that leads him to believe there are not that many jobs that would be created.  He indicated there was a party at this facility several months ago; the Sheriff's Office was called because of the noise; cars were parked up and down Garfield Avenue creating a nuisance; and he questions how this facility is really going to be used.  He advised once the Board issues the CUP it is there forever and the next guy may not be so nice.  He added after the Planning and Zoning meeting Mr. Keenan was advised to meet with the neighbors to talk to them about the development; his response to the residents was he was getting an attorney and he was going to win; and the residents have not heard anything and have no idea of what he is actually going to do; and it implies to him that his intentions are not quite as honorable as these fine people say. 

 

Commissioner Bolin inquired how many days is someone from Mr. Brazee's family occupying the home.  Mr. Brazee responded in the wintertime it is occupied more than the summer.  Commissioner Bolin inquired if it is three months during the winter.  Mr. Brazee stated generally three months during the winter someone is there; there was one family that rented it for four months during the winter consistently and liked the area so much that they bought a house on the next block over; and during the summer there are people there usually once a month, maybe a week a month.  Commissioner Bolin inquired it is being used as a vacation rental property.  Mr. Brazee clarified it is not a rental property, it is just for the family to stay there; there is no money charged for it; that would be a business and he and his family are not into doing that; and stated it is strictly the family that uses the house. 

 

Commissioner Infantini stated she is confused, she thought he just stated they rented the house to a family for four months in the summer.  Mr. Brazee apologized and stated every year they stayed there, it was his wife's cousin; and that it was every winter. 

 

Mr. Volk inquired if it was true that Mr. Brazee does not personally live in the house, and if it is boarded up with plywood.  Mr. Brazee stated he does not live there throughout the year and that one of the windows is boarded up with plywood because of the light from this business that shines in the bedroom window and disturbs the people that stay there.  Mr. Volk inquired if there was any other places that there was plywood.  Mr. Brazee responded no, there was not. 

 

Lila Gilbert stated herself, along with property owners and residents of Garfield Avenue, Hayes Avenue, Ridgewood Avenue, and four condominium complexes, would be negatively impacted by approval of the CUP, and they request the Board deny the permit.  She noted by denying it, the Board would also be in agreement with the Planning and Zoning Board that met on May 9, 2011.  She stated Mr. Keenan's BU-1 property is a standalone building of 1,482 square feet that was constructed 40 years ago as a gas station and radiator repair shop.  She added the residential property adjacent to Mr. Keenan's is on Garfield Avenue in Cocoa Beach; and a 20-building condominium complex, Cape Shores, is located directly across from the property on the left-hand side.  She advised she moved to Garfield Avenue when she was 15 years old and has lived there for 24 of the last 40 years; and she and her husband continue to have a vested interest, as they own multiple properties on Garfield Avenue.  She advised their property tax bill for last year was over $11,000; it was paid in November; and as of 4:00 p.m. today, the property tax bill at 6600 North Atlantic Avenue has not been paid.  She noted the Planning and Zoning staff review of the CUP application shows that it is for a 40-seat, 20-parking space, internet cafe that serves alcohol.  She added since an internet cafe is not defined in Brevard County's Zoning Code, the code treats it as a bar; on May 9, 2011, the Planning and Zoning Board voted to deny this request for a CUP; since that meeting, it appears Mr. Keenan seems to have changed his intent from the application, as noted by his remarks, and his daughters; and it was an undated, unsigned, unaddressed paper that was presented to Ms. Fox, sometime after the May 9^th meeting for whatever reason.  She advised Chelsea Keenan says this building will be, “A venue for those with a taste for art, music, and spirits.”  She added it seems to her that it will be a bar with pictures hanging on the wall and a jukebox; since October of 2010, Brevard County Code Enforcement has investigated a number of businesses operating at the La Java Room location without Business Tax Receipts; these include, Smoke Stuff, a mobile barbecue, Beach Classics Scooter Rentals, and Keenan's Market and Bazaar, which was a flea market sales venue for household items; and the renting of spaces was even offered on the business signage.  She added the application processes for a Brevard County Business Tax Receipt, otherwise known as an Occupational License, requires that a property owner give authorization for another business to do business on their property; and there are several different ways this authorization can be accomplished so that a business tax receipt can be issued.  She added Mr. Keenan allowed revenue producing businesses to conduct business on his property without having a business tax receipt, as confirmed by Brevard County Code Enforcement; experience tells her this is irresponsible; and it shows a disregard for Brevard County Code.  She stated she believes that Mr. Keenan knows better as he has operated, as he said, multiple businesses in Brevard County for many years; and stated Mr. Keenan does not want to follow the rules and regulations and feels that he thinks they are for everybody else.  She inquired why the neighborhood should expect Mr. Keenan to respect Brevard County Statutes and Codes concerning the sale and service of alcoholic beverages; he has demonstrated that he does not respect the Business Tax Receipt procedures; and requested the Board not grant him the opportunity to put alcohol in her neighborhood.  She advised the BU-1 zoning of the La Java Room permits commercial retail operations; and if alcohol is to be served a Conditional Use Permit must be approved, which is why they are here today.  She noted earlier this year, a private party was held at the La Java Room where alcohol was served without a CUP; as part of this event, vehicles of the guests caused traffic problems, as Mr. Brazee stated, on Garfield Avenue; the noise level and parking problem necessitated the Sheriff's Office having to come to their rescue; and she believes that parties similar to this one will continue to occur as Mr. Keenan has said he will rent out the La Java Room for special events.  She inquired why their neighborhood should become party central; and she believes he should take it down to his address in Cocoa Beach.  She stated at the Planning and Zoning meeting Mr. Keenan stated his business is a quarter of the size of many alcohol establishments across the street in the City of Cape Canaveral, such as Izzy's Pub and Restaurant, Lido’s Cabaret, and also Graham's; and stated Mr. Keenan said this will be a more upscale and tighter operation in a small venue capacity.  She advised he has also stated it will be membership only, closed-door, velvet ropes, and can be rented out for private parties.  She noted this is a single-story concrete block building that was a gas station; and comparing it to Izzy's Bistro, a very nice 150-seat restaurant, with a full bar and menu is laughable.  She stated the 40 seats authorized for the building are the total number of seats both inside and out; Mr. Keenan has said that the back of the building will not be used for business purposes; and Mr. Keenan has addressed where the patrons are going to stand around and smoke, which is in front of the building close to A1A.  She advised the La Java Room does not permit outside seating; the previous tenant of the building had use of one bathroom, which was unisex; and she questioned if an upscale venue should not have both a men's and a women's restroom; and stated no permitting is on file with the County for any additional plumbing at this location.  She noted the refuse generated by the business needs to also have the properly sized waste containers, which Mr. Keenan has not provided for previous tenants’ use; there have been ten opportunities since April 18, 2011, since the last tenant moved out to have the trash removed; and it was still sitting there as she was coming to the meeting this evening at 4:00 p.m.  She noted Mr. Keenan stated he immediately, upon being notified by Code Enforcement, put in his request for a permit for that deck; but that was untrue; he put in the permit request on May 9^th at 2:30 p.m., 30 minutes before the Planning and Zoning meeting; Brevard County Code Enforcement and Brevard County Licensing closed that deck down on April 20, 2011; and he had 19 days, but applied for the permit just 30 minutes before that meeting so he could say that he submitted for a permit.  She advised that Mr. Keenan said he did not know he needed a permit; but there is soundproofing in the building, which is another construction process that requires a building plan and permitting, but was not on record with the County when she checked; stated Mr. Keenan is an experienced real estate associate who has been in the business since 1978, according to his business card; and by now she would hope he knew what kind of construction would require a business plan or permit.  She pointed out in September of 2010 Mr. Keenan received, from the City of Cape Canaveral, a notice of violation for performing work without a permit; that case is still pending; the current outside lighting of double fixture strip lights is most likely not efficient; so additional lighting will be needed; and it will affect the neighbors and most likely the sea turtles.  She noted the neighborhood directly to the east is a residential area zoned RU1-9, which are single-family residences that directly abut the La Java Room; the hours of operation are 8:00 a.m. to 2:00 a.m.; which is a conflict with the residential atmosphere of the neighborhood; the residents feel they will not be able to enjoy their neighborhood as they have in the past; most of the residents work 8:00 a.m. to 5:00 p.m.; kids go to Elementary, and High School and Brevard Community College; and there is even a school bus-stop on Garfield Avenue.  She noted they do not have sidewalks in their neighborhood; the stores and businesses around Mr. Keenan do not stay open until 2:00 a.m.; they are a printing shop and Avis Car Rental; and stated Lido's was not in the immediate vicinity of this address.  She noted that Mr. Keenan has stated that he is just the bankroll for his daughter's class project; a project being promoted at the expense of real people, real families, and a real neighborhood; a class project impacts the quality of life of the residents by the increased traffic conditions, noise, the appearance of the area, and the decreasing property values; and the residents do not need this CUP in their neighborhood. 

 

James Pacelt, stated he is a resident of Cape Canaveral and he believes the neighborhood needs some place for art and music because all of the bars in the area are more of the lower-end bars, that people cannot go to dressed up nicely to hear someone play a guitar or piano; and Cape Canaveral needs more of that.  He stated he is in support of the application. 

 

Donna Harris stated she is a small business person in the area and she supports small business and the jobs that they can provide for the community. 

 

Peter MacDonald stated he is a local business owner in Cocoa Beach; he has a similar venue at the corner of Minuteman and A1A.  He noted that over the past few years he has experienced government hurdles; with the economy the way it is it is counter-productive; and stated this is creating jobs.  He added that anyone should be free to open a business. 

 

Barbara Becker stated that she is a realtor with Vincent Keenan Realtors and is in Cape Canaveral 90 percent of the time; she knows this will be a great venue when it opens; and she is in support of it. 

 

Brad Bernkrant stated the comparison that he would like to make is that there are certain venues all around the country that are extremely small; they are not the large waiting-outside crowds; but they attract extremely high-quality small performances.  He added, one is in Saratoga, New York, and it is called Hattie's Fried Chicken; it was part of the Underground Railroad during the Civil War; and Madeline's is an upscale bar that some of the greatest artist in the world pay and wait in line to come to.  He advised Mr. Keenan’s facility, at 40 seats, is not big enough to cause any problem in the community; and ultimately, what will happen if the money is spent, is that there will be a high-quality pianist, or something of that sort.  He stated the environments are not necessarily the type of environments that are all plush, etcetera, although Mr. Keenan has done a lot of work and it shows that.  He added there is nothing like that in their community and this venue could help. 

 

Joseph Nugent stated that everyone is struggling right now; and it is hard to find a job and keep a job.  He noted to turn down a business before it is even opened on the say-so of what might happen does not seem like a smart thing to do on anybody's part.  He added he does not see how people can say what is going to happen there; and he believes there were business arrangements that went wrong before this, and is stirring up some dust for the permitting of the bar.  He stated it comes down to jobs; there are no jobs; and when he moved to Cape Canaveral in 2003, it was a pretty nice place, but it seems to be turning into a shanty town.  He added when driving down there, nothing is open, so anybody who wants to come open a business, he says go for it; and stated everyone could use the money. 

 

Leonard Cassanelli stated as a new, young, property owner of an eight-unit apartment complex in Cape Canaveral, he is hoping to convert the run-down apartment complex into high-end condominiums which are one block off of the beach, thanks to Vincent Keenan.  He added he is there on Mr. Keenan’s behalf and hopes he gets approved for his CUP because he believes it would be a great place in the community, and most of all a great place in the neighborhood it lies in, considering Mr. Keenan, as well as himself, are trying to make properties in the neighborhood a better place. 

 

Anthony Stile stated he is a property owner in Cape Canaveral; he has lived in the area in excess of 20 years; he has known Mr. Keenan throughout that time-frame as well; and Mr. Keenan is definitely a professional in the real estate market, as well as himself.  He noted he was also involved in property management and buyer representation in the real estate market.  He noted any opportunity to promote growth brings in new tax dollars and revenues, which are good for not only the City and the local economy, but as well as providing job opportunities for people out there that are looking for jobs.  He stated the property is BU-1, so it is not a rezoning; and it is just another venue for allowing people another choice in their life of where they want to spend their time and money and enjoy a quality evening out in a new, upscale venue.  He added he hopes the Board will approve it. 

 

Chairman Fisher inquired if Mr. Keenan is granted a CUP, but then there is a change of ownership, would he have to come back for another CUP.  Ms. Fox replied no, the CUP would run with the land; once it is established on the property, and as long as there is no period or gaps in there that would reach the time-frame, then it can continue with the next owner. 

 

Robert Marasco stated he is a lawyer and has been in Brevard County for 28 years; a number of people call him indicating that they have to relocate from this fine County because of the Space Center layoffs; and there are kids that are born here and leaving the County because their parents no longer have a job.  He stated Mr. Keenan’s place will create a handful of jobs, not skilled, or high paying jobs, but ordinary jobs for ordinary people; and he respectfully suggests that is what the central part of the County needs.  He added being a confirmed bachelor, he is familiar with the culture and lack thereof in Cape Canaveral and Cocoa Beach; and this will add something to that culture.  He stated most people he knows that would like to do something like Mr. Keenan is describing, are going to downtown Melbourne, or Orlando.  He stated he is not trying to shun downtown Melbourne, but this is a great idea to give some new personality, focus, and perhaps more culture to central Brevard County by allowing him to open this business in Cape Canaveral.  He stated given the economic realities, and the fact of the other business that used to be there, he would think the neighbors will be pleasantly surprised.

 

Commissioner Nelson stated everyone wants to create more jobs; but his understanding is that jobs are not part of competent substantial evidence in terms of a land use decision; and inquired if that is correct.  Christine Lepore, Assistant County Attorney, replied it is not; it is very clear that the Board has to determine whether the proposed change, which is a zoning change, and an amendment to the zoning map, to add a Conditional Use Permit to a property is to consider the compatibility with the proposal with the surrounding uses. 

 

Donna Denton Pierce stated she works for Vincent Keenan; she is an ordinary person, who works with several ordinary people who clean up after visitors to Cocoa Beach.  She noted jobs at La Java Room will create more opportunities for her and her family of cleaners; and she believes in Cape Canaveral, more colorful, fun places need to be there for people to enjoy.  She added everybody is scared about the economy with the ending of the Shuttle Program; everybody is afraid of losing jobs; and this entertainment center will create more jobs and will also bring in more tourism.  She advised that is where Brevard County residents make their money.  She stated there is a big stockade fence that Mr. Keenan put up away from the neighborhood; and the house behind this property is about 300 feet from the building; and everyone knows the sea turtles are about four blocks away on the beach and really have absolutely nothing to do with this.  She stated the few who are opposed to this have a personal issue. 

 

David Feller stated he owns Beach Auto Repair in Cape Canaveral; and he tries to keep people employed the best he can; he has three people that work for him, and there are six people that count on him; he thinks that it is better to have businesses where people can make money and pay taxes; and he supports Mr. Keenan as well. 

 

Jacqueline Vance stated she has worked alongside Mr. Keenan for 10 years as his business manager; she reiterated that the properties that he has purchased in the A1A corridor have all been improved and have residential property adjacent to them; and she is not aware of any complaints, issues, or problems in the timeframe that she has worked with Mr. Keenan. 

 

Dan Gilbert stated he and his wife own multiple properties on Garfield Avenue; and he would like to say he is certainly not against businesses, as the economy needs them.  He stated in this case the argument between the business community and the residential community is in line with the Statute and the Code; and the residents and the property owners on Garfield Avenue do not believe Mr. Keenan’s business is compatible with the neighborhood.  He believes parking, traffic, and noise would be threats to children on the street, and along with the hours of operation, will be a problem in the community; and the hours are inconsistent, although Mr. Keenan has pointed out they are legal and in concurrence with the Code, they are inconsistent with the other operating hours of the businesses nearby.  He stated not all of the people on Garfield Avenue were able to be here to speak, and there are more speakers yet to be heard; but he knows the Board has received approximately 35 letters from residents who live on Garfield Avenue or own property there, as well as people from the condominiums nearby within 500 feet of the property in question.  He stated everyone that has come up to speak has their own opinions; but almost none of them live in the neighborhood, with the exception of a couple. 

 

Helen Green stated she is a property owner and a full-time resident, along with her husband; and they have lived for over 22 years on 6507 Ridgewood Avenue in Cocoa Beach.  She added she and her husband have been through all of the businesses that have been at the subject property.  She stated she does not think the Board understands that the bulk of residents that are against this are not against the business; they know there is a business there and there should be a business there; but what they are against is the liquor license being applied for.  She noted Mr. Keenan has stated at a prior meeting that his CUP would be followed by a 4-COP, which brings liquor there.  She explained what they go through, as neighbors, in the affected area; stated at 2:00 a.m. yesterday morning a motorcycle was driving fast down Ridgewood Avenue; it stopped and there was a thud, and the engine started up again; and she thought someone got hit or hurt, but when she ran outside it was gone.  She advised Mr. Keenan said at the last meeting that the residents are complaining about things that have not happened yet.  She added no, they have not happened yet, but this is what the neighbors have to live through with the other bars that are already in the vicinity after the clubs close at night.  She advised Mr. Keenan and his employees, do not live in the affected area, so they do not see what the neighbors have to go through.  She added following that motorcycle a car came flying down the road and by the time she got to the front of the house, it was gone; and Mr. Keenan stated then that the residents should call and report it to the police.  She advised they live in an area called Avon by the Sea; they do not live in Cape Canaveral or Cocoa Beach; their help comes from the mainland; if there is an emergency, there is Cocoa Beach, Cape Canaveral or the Sheriff's Department, who will respond, depending on which agency is closer.  She stated there is no way the residents could call for help and have it get there fast enough; and it is the same for robberies.  She requested the Board deny Mr. Keenan’s request for a CUP, and any other CUP that may be applied for at that location. 

 

Joe Aiello stated he was a tenant of the La Java Room, and was fully prepared after reviewing the minutes of the Planning and Zoning Minutes to defend his business reputation and set the record straight on the details of his occupation at the La Java Room; but nothing has come up yet and he does not have anything further to talk about; and added he is only here to fully defend the details. 

 

Chairman Fisher inquired what Mr. Aiello meant about being a tenant.  Mr. Aiello replied he had a month-to-month lease with Keenan Realtors that involved him having a coffee shop concession business in the La Java Room; and he was licensed.  Chairman Fisher questioned if Mr. Aiello had moved out of the La Java Room location.  Mr. Aiello stated he vacated those premises on April 19, 2011; and he was fully prepared to defend his business reputation should any inaccuracies come up; but nothing has come up so he feels no need to proceed further unless something does happen.  Chairman Fisher inquired how long he was there as a tenant.  Mr. Aiello responded that he moved in around October of 2010, and had to build-out and Mr. Keenan gave him a few months free rent to ensure he could get his business off the ground; and he started paying rent this year. 

 

Steven Caylianone stated he has been friends with Mr. Keenan for around 10 years, and is employed by him as a licensed Realtor; and stated he would also be managing the La Java Room.  He stated he does not understand how someone can say they live somewhere and when they moved here all of these businesses could be put into place, potentially a bar; and that would be like someone saying they want to move to the beach, but they want a committee to promise them there would be no hurricanes.  He stressed that when moving next to a commercial area, there is potential for a bar; and stated there are other places to move to that are not going to be next to zoning like that.  He added that he is also in support of La Java Room for the job opportunities, art, and culture it will bring to the area. 

 

Thonazive Whitehead stated there is not much she can add to all of the previous relevant comments; however, she wishes to demonstrate that Mr. Keenan is not the type of business man who should be running a bar in her safe, quiet, family-orientated neighborhood.  She added after she attended the Planning and Zoning Advisory Board Meeting on May 9^th, Mr. Keenan had words with several attendees of the meeting; and in a threatening voice said to them that he would get this, and that it was not his first rodeo.  She noted subsequently, she went to her car, made a phone call, and about 10 minutes later drove 22 miles to a Cocoa Beach restaurant where she met some friends.  She stated Mr. Keenan, according to the District Attorney's Office, has admitted he followed her from Viera to the restaurant where he accosted her and she was forced to file felony battery charges against him.  She questioned if this was the type of business man the Board would want running a bar, 70 feet from her property line; she has been stalked and assaulted by this man and is fearful for her health, safety and welfare; and she hopes the Board will not let him have a bar and vote against this proposal. 

 

Joshua Porter stated he is a local business owner and an attorney; and he is in support of this particular enterprise.  He added he would like to address a couple of concerns; he is not rebutting anything on behalf of Mr. Keenan, but his observation so far of the opposition to this CUP deals with Mr. Keenan's character, the hours, threats, traffic, parking and noise; all of these things were presented in a speculative manor and he does not believe it is competent evidence.  He added there are remedies already in place to deal with these types of things, such as threats, robberies, or burglaries in this area, that is what the police are for; and if there are particular tax receipts that someone believes is not on file, that is what Code Enforcement is for; and with parking issues, zoning ordinances are already in place for that, and the same for noise.  He stated there are remedies beyond just simply saying that a particular person cannot be allowed to have a CUP. 

 

Terry Perez stated Mr. Keenan's business will not be the type of business that will attract the wrong people; and he has seen a lot of businesses go through there that he did not approve of.  He stated he works for Mr. Keenan; there are a lot of them, and they do these jobs that Mr. Keenan wants and they are quality jobs; and these quality jobs have actually cleaned up a lot in Cape Canaveral.  He stated everything is provided by Mr. Keenan to his employees if they need it for the jobs they do.  He stated traffic problems are inevitable; but this facility will stop some people that are traveling through and bypassing Cocoa Beach and going to Melbourne. 

 

David Cox stated it is a fact that when Mr. Keenan purchased this property it did not have a permit to serve alcohol; and as a real estate agent in Brevard County for many years, he should know that he accepted that property under those conditions.  He added he sees no reason why that should be changed being there are significant alcohol establishments in that area already within 1,000 feet.  He noted if he wanted to have an establishment to serve alcohol, he should have purchased a property that already had a permit to serve alcohol.  He expressed that he does not see why the Board should change that at this point.  He stated alcohol requires an extreme amount of responsibility to serve; and previous statements that have been made are backed up by evidence through the County Court Records; and he does not believe this individual is responsible enough to abide by the rules and laws of this County and should not be granted such a responsibility. 

 

Mr. Volk stated he wanted to bring Mr. Keenan up for a few questions.  He inquired if the people who spoke in opposition to this live adjoining to the subject property.  Mr. Keenan responded no, none of them live within a 200-foot radius; and added some own vacation rentals, and houses that he knows of.  Mr. Volk inquired about the condition of Mr. Brazee's property.  Mr. Keenan replied that property has been boarded up for years and no one has occupied it that he knows about; and there is plywood on the windows.  Mr. Volk questioned what the status of the deck removal was.  Mr. Keenan stated it was completely removed without a demolition permit because the County said he did not need one; and it was never totally built in the first place.  He added the stringers that are there are being moved to Vinny's Hot Dogs and Hamburgers, which he owns two blocks north and is opening next week.  Mr. Volk asked if he ever got objecting parties to try and meet with him.  Mr. Keenan responded yes, he asked the objecting parties after the Planning and Zoning meeting and they said they had nothing to meet with him about; and stated they would not even give him a time to meet to explain his side.  Mr. Volk inquired if Lila Gilbert, who spoke in opposition, lives 2.6 miles away from the subject property on Manatee.  Mr. Keenan replied yes, Mr. and Mrs. Gilbert live 2.6 miles away from the property in question.  Mr. Volk questioned how long Mr. Keenan has owned the subject property.  Mr. Keenan replied approximately 32 years.  Mr. Volk inquired if there will be any curb cuts done on the property.  Mr. Keenan replied there is already ingress and egress available and he also owns the property behind the subject property.  Mr. Volk asked if there were going to be any particulates, smoke, or fumes emanating from the subject property.  Mr. Keenan responded no.  Mr. Volk inquired if there will be garbage removal.  Mr. Keenan responded garbage receptacles are in line; there is no garbage at the property; and anyone can go by after the meeting and see. He added he has been in limbo with $7,000 a month in expenses on the subject property since January to come before the Board; and he did not put the dumpster in or do a lot of things that they would like to do because they do not know where this is going.  Mr. Volk questioned if Mr. Keenan was going to do anything that will affect water drainage form the property.  Mr. Keenan stated no, all of the water drainage is in place. 

 

Commissioner Bolin stated she was reading through the material and it said it would be a private membership club, and inquired if that would remain the same.  Mr. Keenan stated it was never a private membership club; there is screening at the door; if a person is a regular, they will have a special card so they do not have to swipe their license every time; it is a VIP club; and it is open to the public, but there will be VIP members.  Commissioner Bolin clarified that he is going to know his clientele and there could be an over-riding disciplinary action if they do not follow the rules that they will not be welcome to come back.  She inquired if there would be some sort of disciplinary action if someone did cause problems.  She added the hours are until 2:00 a.m.; and it was stated that the competing businesses around were also at 2:00 a.m.; and she is only hearing about one that is a distance away and it is a different type of establishment.  Mr. Keenan stated Lido's Cabaret is exactly one block south; and Graham's Lounge is two blocks south of Lido's.  Commissioner Bolin inquired if Graham's Lounge was the same type of establishment.  Mr. Keenan replied it is not the same type of place he would like to open; Graham’s Lounge is on half the size of land, backing directly up to residential; and it is a karaoke, and darts bar.  Commissioner Bolin inquired if they are open until 2:00 a.m. as well.  Mr. Keenan replied yes, as well as Izzy's Lounge across the street; Lamppost Lounge, Eddy, and Tip a Few.  Commissioner Bolin stated 2:00 a.m. is not unusual for five or six blocks around him.  Commissioner Nelson inquired if the subject property has ever been through a change of use process.  Ms. Fox replied, no, the Occupational Licenses/Business Tax Receipts have been renewed so there has been no trigger for a change of use.  Commissioner Nelson further inquired if Mr. Keenan went from being a fireworks store to being anything else, how he could continue an Occupational License.  Ms. Fox responded staff does not see the renewals when they come through; and she understands that Fire Rescue goes out for the renewals, but the Planning and Zoning Office does not.  Commissioner Nelson questioned if the license should have gone through that, being that there has been testimony that the one business left and there were new businesses that came in; and it should have at least triggered something.  Ms. Fox stated if staff would have seen it, it should have at least tripped the trigger for a change of use plan; and staff would have re-evaluated the use on the property.  She further stated that when Mr. Keenan did the permit for the deck, when it was cited and came in, staff immediately held it for a site plan. 

 

Commissioner Nelson stated as he was reading through the information, one of the things that struck him was that it started out as an internet cafe with 40 seats; and he is still confused as to how that 40-seat number was achieved.  Mr. Keenan replied to bring it to the CUP, he had to hire Beach Mapping and Surveying to do an updated site plan; and the engineers have come up with parking for 60 seats; but he believes with staff decided that if he has an over-flow with the number of employees, that they decided to bring it to 40 so they could have additional employee parking. 

 

Commissioner Nelson inquired if the seat number has been validated.  Ms. Fox replied when Mr. Keenan brought in his application he indicated to staff that the fire department stated it could be a maximum of 60 seats, which was what he wrote on his application; however, the survey that was prepared by Island Beach Mapping and Surveying stated 40 seats; when evaluating the application, she told Mr. Keenan he could not have 60 seats because he was not allowing any parking for employees; and he backed it down to the 40. 

 

Commissioner Nelson questioned at what point that gets evaluated, in terms of the accuracy of how many seats he can have.  Mr. Keenan replied it was on the worksheet.  Commissioner Nelson stated it was based on what he told staff; and inquired how staff evaluates that.  Ms. Fox replied staff evaluates the seats based on the parking calculations; and so the only comment staff has, and can control, is whether or not he has enough parking to accommodate that.  She added parking is something staff can evaluate as part of the CUP process.  Commissioner Nelson inquired if she recalls, the Board ran into this with a different CUP where the parking did not equate to the interior service and created a problem with the fire department; and that all happened after the CUP was issued.  Ms. Fox replied that is correct and staff's parking calculations are based on seats, not total square footage of the building. 

 

Commissioner Nelson inquired about Mr. Keenan adding parking in the back.  Mr. Keenan replied that if at some point the business was successful, he would add parking.

 

Commissioner Nelson inquired if the site currently complies with the Land Use Regulations related to a CUP in a BU-1; and stated his understanding is the site plan requirements require a masonry wall.  Ms. Fox stated if this was a new building and was under construction he would be required to put a six-foot masonry wall between the commercial property and any residentially-zoned property. 

 

Commissioner Nelson inquired if what the Board is looking at is a change of use, because the building already exists, and it would have to be brought into compliance.  Ms. Lepore responded the Board can consider whether to require that; the BU-1 is being expanded to a BU-1 with a CUP for liquor sales; and if the Board feels it appropriate to require the site to be brought up to compliance in order to abate negative impacts to the neighborhood it could require that. 

 

Commissioner Nelson stated when he met with Chelsea and Vincent Kennan, and the residents, he looked closer at the site plan and noticed there is a one-way traffic flow; and the only entrance is off of A1A, being off of Ridgewood Avenue.  Mr. Keenan responded that was not correct, Ridgewood Avenue is not near the property.  Commissioner Nelson corrected himself and stated Garfield Avenue.  Mr. Keenan stated the subject property has an ingress easement and when looking at the Site plan it is very clear that there are two ingress and egresses on the front side of the property.  Commissioner Nelson stated one of them is blocked by parking.  Mr. Keenan responded it was not; and that it is completely open and there is a big flow pattern.  Commissioner Nelson replied no, he is following the arrows and they go from Garfield Avenue and out.  Mr. Keenan stated he will have to go to Beach Survey and Mapping because there is plenty of room in there to accommodate all of the parking spaces.  He added what must have happened is he has two ingress and egress easements on A1A and also 150 feet of ingress on Garfield.  Commissioner Nelson advised currently this is what the Board has to look at, so what it shows is what it shows.  Mr. Keenan stated staff told him that they way it is set up was fine.  Ms. Fox responded Mr. Keenan was looking at two different things; the traffic analysis that is done is part of the staff comments, which strictly deals with the number of trips to and from the property; and it does not evaluate the layout of the property and the traffic flow through the parking lot or the driveways. 

 

Commissioner Nelson inquired if staff would need to take a look at that; and if it was a minor site plan adjustment.  Ms. Fox replied because he wants to expand the parking area, the plan shows that he is closing off two driveways, one from Garfield Avenue and one from A1A; and that would require a minor site plan review.  Mr. Keenan responded he would not close that off; he will get the map re-drawn; and there is no need to close that off as he has ample parking and he would just have to move the slips. 

 

Mr. Volk stated the important thing is Mr. Keenan is not going to change the traffic pattern.  Mr. Keenan stated no, and he does not understand why it was drawn up this way; and that is not the way it is at this point.  Commissioner Nelson stated once the other is opened up, he has suddenly changed the number of parking spaces; there is parking on the back side of this space that he said he was going to re-open; and if he will be getting traffic flow, that takes out parking spaces.  He advised what he is saying is, the Board needs to see something other than what is in front of it. 

 

Mr. Keenan inquired if there were 10 extra parking spaces the way it is drawn up now, and he could take out that parking and still make 40 seats.  Ms. Fox responded not by the Land Development Regulations; 40 seats requires 14 parking spaces; and the plan he has submitted shows 20.  She added if he would like to employ 22 people he needs to have one space for every four employees that work different shifts, because staff does not expect them all to be there at the same time; and he only started with six extra.  Mr. Keenan stated there are not 22 employees; he still has one-half acre of impervious surface there; and inquired if he could use that for parking as well.  He stated it is compatible with the use. 

 

Commissioner Nelson stated he does not know what the circumstances were for the one on Wilson Avenue; it may have been a horrible land use decision; the point is that there are Codes in place and currently, it is hard to understand what exactly the Board is going to see at that moment in time; there was another concern with cars backing out onto Garfield; and he does not think the Board allows, in commercial settings, for cars to back out onto the roadways.  Tad Calkins, Land Development and Engineering Assistant Director, stated that is correct; the parking does not meet the County's current standards; and it would be one of the things that needs to be looked at through the site plan process.  Mr. Volk inquired if Mr. Keenan's use contemplates any cars backing onto that street. Mr. Keenan responded no.  Commissioner Nelson stated that is how it is drawn; and inquired if the cars were going to jump up out of the parking space onto the street.  Mr. Volk responded Mr. Keenan has already explained the drawing; and the drawing is not how the space will be used.  Commissioner Nelson stated for the record, the Board does not have anything in front of it to show what it is going to look like.  Mr. Volk stated it has Mr. Keenan's testimony.  Commissioner Nelson stated he has to visualize an engineering drawing.  Mr. Keenan responded the Board has to picture the parking lot; plus, the one-half acre of impervious surface that he has that is gravel can be used within the zoning; and there is another 15 spaces in there.  Commissioner Nelson stated he does not know if Mr. Keenan can or cannot meet the requirements; the problem is what is being shown to the Board does not work; and that is all he can tell him for sure.  Mr. Keenan inquired why it would not work even if he has one egress onto A1A.  Commissioner Nelson stated he does not have that in front of him to know what the width of the entry is.  Mr. Keenan inquired why that would be an issue to have it one way going out to A1A; if he wanted it the way it is there is no issue there either.  Commissioner Nelson responded from a safety perspective, traffic along A1A is not going to know the entrance is off of Garfield Avenue; they will assume that it is off of A1A, which he believes is a reasonable assumption; and stated it needs to be addressed.  He added the transportation staff is going to look at it and say it is an unsafe circumstance the Board is creating; and the Board does not want that. 

 

Chairman Fisher inquired what the process is if the site plan does not work, and if it would have to go back through approval.  Ms. Fox replied as part of the conditional use process, Mr. Keenan is required to give staff a drawing that shows the parking layout and how the property is designed as part of a CUP evaluation; and that is why staff is allowed to do the parking evaluation at this time.  She added without the drawing, he does not meet one of the conditions of applying for a CUP; and if he truly does not want to develop the property the way that it has been drawn, then staff would need an amended document to show he still meets the criteria for the CUP.  Mr. Keenan stated he meets the criteria with that particular drawing. 

 

Chairman Fisher inquired if this was approved by staff.  Ms. Fox responded, yes.  She added it will require a minor site plan to redesign the site to close off those driveways and add the parking.  Mr. Keenan stated he does not need to close off those driveways.  Ms. Fox advised that is what his plan shows that he is going to do.  Mr. Volk stated Mr. Keenan is willing to accept that condition for approval. 

 

Commissioner Infantini stated what he may be trying to do is see if the Board will grant him the CUP; and if it is granted, then her best guess is that he is going to bring his site plan and spend all the necessary money to bring it into compliance.  She added what somebody does not want to do is pay a lot of money to get a real site plan in place and then be denied; she believes he is trying to put the horse before the cart; and if he gets the permit then he will fix the issues. 

 

Commissioner Nelson stated the law needs to be followed; and there is information that needs to be given to the Board.  He inquired if the Board is supposed to consider philosophically whether or not there should be alcohol there or not. 

 

Ms. Lepore replied in addition to considering whether it is appropriate to have alcohol the Code says, Section 62-1906, that the Board should consider conditions regarding maximum number of patrons, hours of operation, limitations on outdoor seating and service, limitations on outside music, public address systems, additional buffer requirements, additional parking requirements, internal floor plan arrangements; and stated there are a lot more components that this Board considers on an alcohol CUP than a rezoning. 

 

Commissioner Nelson stated philosophically he could oppose alcohol, but frankly he does not; and the point is that the Board does not have the ability to consider philosophically whether or not Mr. Keenan should have this.  Commissioner Infantini stated he meets the requirements based on this now, and he has excess parking spaces.  Commissioner Nelson remarked Mr. Keenan is required to give the Board a drawing to see what he is able to accomplish and then it can be evaluated; and the Board does not have that. 

 

Mr. Volk stated the Board does have a drawing; there is an error in the drawing and Mr. Keenan has explained it by his testimony; and additionally, the impact the Board needs to understand is that it costs Mr. Keenan many thousands of dollars for each month the delay occurs. 

 

Commissioner Nelson pointed out the neighborhood and corridor will live with the decision the Board makes; and that includes the adjacent property owners, as they have rights as well.  He added what the Board is trying to do is evaluate compatibility; there have been a number of businesses in there that have been compatible; and the Board is trying to determine the compatibility of this one request.  He stated one gentleman got up and spoke about all the things that were not competent substantial evidence, and he would agree with those; but he did not hear him say the number of jobs created is not competent substantial evidence either; and he has heard a lot of testimony tonight related to jobs.  He agreed the Board understands what needs to be evaluated; and he would like to see what it looks like, what it will do to the neighbors, as he believes it is only fair to them that they understand that when this Board makes its final decision that they have all of the information in front of them. 

 

Mr. Keenan inquired if he complies right now with his site plan, and if he is in compliance with the parking.  Ms. Fox replied the way that it is drawn now, no.  She noted he has the appropriate amount of parking spaces, but the orientation of the parking does not meet some of the Codes; specifically, the ones that show that perhaps the cars could go back out onto Garfield Avenue; but those could be reoriented; and she does not see, by looking at the aerial photo, the way the site is currently developed, that he has adequate parking.  She added that was not part of the application, but the comparison was done. 

 

Mr. Volk stated Mr. Keenan will agree to a condition if the CUP application is approved, to make the parking compliant with the Board's concerns.  Commissioner Nelson inquired what if he could not make it compliant.  Mr. Volk responded the Code conditions can be applied and that is a condition of the approval of the application. 

 

Chairman Fisher questioned how the drawing got to the application process.  Ms. Fox replied it was submitted by the applicant.  Chairman Fisher questioned further when staff saw this did they state at that point in time it was not in compliance, or it was in compliance.  Ms. Fox responded it is part of going through the process.  Chairman Fisher stated before it gets to the Board, it seems that it should be addressed in the Zoning office.  Ms. Fox stated it is addressed by counting parking spots; and it has been determined that since it does depart from the existing conditions on the site, that he would need to do a minor site plan to make it compliant with the Code. 

 

Commissioner Nelson stated it has been identified there was going to be an issue in the future; and the Board is getting it out of the way upfront instead of at a future date.  Mr. Keenan stated he would be happy to comply with any conditions upfront and before any opening of the business.  He added he was notified at Planning and Zoning that he did not have that issue by staff; questions and answers, and the paperwork was in order, or else he would have had the drawing changed; and noted he has plenty of room for added parking, plus employee parking on impervious surface. 

 

Mr. Calkins clarified County Parking Code requires that if parking is on a paved surface, if he wishes to vary from that, it would require a waiver of the Parking Code.  Chairman Fisher inquired if that is typically granted.  Mr. Calkins stated typically what happens is staff would not grant a waiver from the County's standard for the required parking; staff has granted waivers for additional parking above and beyond what is required by Code on alternative surfaces. 

 

Mr. Keenan stated he would be willing to commit himself to a Binding Development Plan with the CUP. 

 

Commissioner Nelson inquired when Mr. Keenan met with Planning and Zoning, did he indicate this was going to be an arts place, because it sounds like his business plan has changed from the original proposal that went before the Planning and Zoning Board.  Mr. Keenan responded the only thing that has changed is that he opened up another restaurant in the City of Cape Canaveral; and the internet café, with Planning and Zoning saying there could be pornographic items, or adult gambling in there, he moved it out of the property to make sure that it is not on the site so there are no questions about it. 

 

Mr. Volk added the Code, Section 62-19061(a) states a bar or cocktail lounge may be a conditional use in a BU-1 zoning classification.

 

Chairman Fisher stated that is a concern of his, because in the past the Board has granted some CUP's in typical situations, but also a lot of the questions were answered; and this thing has changed several times in the process, or what it looked like it was going to be.  He added he has had a similar situation with a bar or restaurant in Titusville where it backed up to a residential home; and it is not the owners fault, but sometimes patrons go out and throw beer bottles over the fence or things like that and it creates a nightmare for the business owner.  He noted he does not condone that and does not believe Mr. Keenan would either; but those are some of the concerns he has when there is a venue providing alcohol in a residential setting.  He stated that is one concern, and then working with the neighbors to get through that issue and be a good neighbor, especially if the Board does consider going there; he does not think it could be an adversarial relationship; he can understand the residents’ concerns of a lot of cars and people getting carried away; and it could be an issue. 

 

Mr. Volk stated it is an appropriate use and the only things that have been changed to the proposed use are things in response to neighborhood concerns; and Mr. Keenan has made material changes trying to accommodate neighbors. 

 

Commissioner Nelson inquired why the Board would not want it to come into full compliance; and if it was a vacant site, and Mr. Keenan came in and wanted to build a building and do those other things, he would also do the other elements, which would be the walls and that sort of thing.  He added if the Board was to consider it, it needs to make sure that it is in full compliance because it is a new use; it has never had alcohol onsite; and if it came in today it would have to do those things if it were a vacant site.  He stated at a minimum it needs to meet the land use regulations as they exist today because it is bringing a new use to the site.  Chairman Fisher inquired what that would be.  Commissioner Nelson noted a wall was one regulation. 

 

Commissioner Bolin repeated that a wall would have to be constructed; and inquired if Mr. Keenan would have any objection to that.  Mr. Keenan responded no, he would not.  Chairman Fisher inquired what if the neighbors did not want a wall and would rather have a fence if it is approved.  Commissioner Nelson stated he believes there is a waiver process if the Board would like to go that way.  Mr. Calkins stated the Code allows for two separate types of buffers, a six-foot wall, or a vegetative buffer on a ten-foot strip with a fence; and the vegetation would have to be opaque within 12 months of being planted to the height of six feet. 

 

Mr. Keenan stated that would be acceptable for both businesses and the neighborhood, as he has in other locations; and has committed to that in the City of Cape Canaveral. 

 

Commissioner Nelson noted the one thing that concerns him is that A1A is difficult for everyone; he is sure the Mayor has the problem where residential is right up against commercial; and none of the them there today created it, it was inherited.  He stated he believes the Board needs to be sensitive to that issue; it has always been a concern of his when there is alcohol activity associated with a business that is up against residential; Mr. Keenan shared a willingness to restrict the activity to the front of the building, although it is moved to the side, but at least it is in front of the back building line; then he heard something about Mr. Keenan potentially wanting to add parking; and that is interjecting back into that area.  Mr. Keenan responded two or three years down the road, if these young people are successful in paying his rent and running this business, that he maybe would come to the Board with a full site plan.  Commissioner Nelson stated if that were before the Board today, he would tell him that he believes that is objectionable; and that is the point he is trying to make.  Mr. Keenan stated nothing has changed; he cannot change anything until he sees what the future brings.  He added he would have to come back to the Board for a change in the Conditional Use Permit perimeters. 

 

Commissioner Nelson questioned if there was any intent to do package sales at this location, because the CUP allows package sales.  Mr. Keenan responded no, there will be no offsite sales of alcohol at all at this location; and there are no activities outside except for smoking in the designated areas. 

 

Commissioner Nelson inquired what the process would be for the binding development plan, and would it have to come back to the Board.  Ms. Fox replied the Board could go ahead and make these conditions of the conditional use permit, and indicate a condition that states he has to have an approved site plan; then the site plan would be reviewed by staff in compliance to the conditions set forth in the conditional use permit. 

 

Commissioner Bolin stated she would like to see all of those conditions put into the CUP as staff has just stated; and she feels it is warranted with the new conditions to move forward with that approval. 

 

Commissioner Nelson stated he would encourage Mr. Keenan and the community to converse about those conditions, if it goes that direction.  He added the Board received an email, asking what the CUP conditions would be if approved. 

 

The Board recessed at 7:54 p.m. and reconvened at 8:00 p.m.

 

Commissioner Nelson inquired if it would be more appropriate to sit down with Mr. Keenan, staff, and the neighbors, to come up with those conditions and hammer it out, as opposed to doing it real-time at the meeting. 

 

Mr. Volk inquired if the Board could finish its vote on the CUP because there is a huge expense every day.  He added it seems the key conditions are complying with Code, parking and building a buffer; either a fence or vegetative buffer, and Mr. Keenan has agreed to that and bound by that; he spoke with a few of the neighbors and their major concern was the deck; and Mr. Keenan would be bound to not rebuild that deck. 

 

Commissioner Nelson stated one of his conditions would be not to use the back area; and his first preference would be to meet.  He advised Mr. Keenan has agreed to comply with the Board's Site plan process as it relates to the CUP; he does not expect him to redo the stormwater because that would be an expensive change; and he already has impervious surface; but he will have to anyway because he needs to create his parking plan.  He added it would also address things like the sanitary facilities inside; and seating.  He stated there was a concern about live, amplified music and he would like to propose there be no amplified music.  He questioned the hours of operation being from 8:00 a.m. to 2:00 a.m. 

 

Mr. Keenan stated the reason for that is he just bought out Bun Java Coffee Company, another thing that went out of business in Cocoa Beach; he now owns a complete coffee house in his storage garage; and he would like to serve coffee, as it is possible under the BU-1 zoning, without a CUP. 

 

Commissioner Nelson stated the operating hours for sale of alcohol was the other issue; and stated 8:00 a.m. does not sound artsy to him.  Ms. Keenan stated the hours of operation they decided on are for reasons of the competing bars in that area have this timeframe.  She added it will not change the kind of people or atmosphere because of the hours; and these hours are needed to stay in competition and to at least offer somebody the opportunity to come over there, or else they will get drowned out by the other bars in the area. 

 

Commissioner Nelson stated Ms. Keenan has given testimony that this will be a high-end, artsy type of place, but the problem is that the Board does not have the ability to recognize that, because tomorrow that could be changed to a biker bar with pool tables, based on the CUP; and that is the concern he has, is that all the testimony today means nothing once the approval is made.  He stated he is not sure, so he is looking to the Board and the County Attorney; he likes what they are trying to do, and there is a need for this type of facility; he is not sure this is the best place for it, but he feels it will get there; the question is how to keep it from becoming the kind of place the Board does not want it to become; and the kind of place the applicants have represented they do not want to be. 

 

Commissioner Infantini stated the Board will have to take their word for it; stated the Board has placed so many constraints on them that at some point they are not going to succeed in business if any more constraints are placed on the business; and stated the Board needs to finally stop putting these limitations on business. 

 

Commissioner Nelson stated the Board has the ability to decide what is appropriate based on competent substantial evidence, as was said, and if this was a right under any zoning category they would not be before the Board; the Board has the ability to decide what is appropriate; and he believes they are getting very close.  He reiterated that he wants to know how to stop it from being the kind of place the Board does not want to see; and that is why he is looking for guidance from the County Attorney or other staff members. 

 

Commissioner Nelson added Mr. Keenan is in real estate, and it may be a circumstance where someone walks in and says they have all the money in the world and wants to buy this place, Mr. Keenan would be a fool not to sell it, but the problem is that the CUP goes with the property.  He stated now the Board would not be dealing with him anymore; and so it is not about his integrity, it is about the integrity of the next guy. 

 

Mr. Volk advised a lot of these concerns are already regulated under Code and Statutes. 

 

Ms. Keenan stated the only condition that would not be addressed that the Board is asking them fill is the type of atmosphere this is going to be; and she can only guarantee what she has in her business plan that she has developed and read to the Board.  She added for the CUP, if it would go to another person, the conditions the Board has applied today would go along with it.  Commissioner Nelson stated she is correct to the extent of the technical conditions that go with it; in other words, the site improvements and those things; but what does not go with it is the clientele.  Ms. Keenan added they have not established a way to measure that; inquired if that was done for surrounding bars; and further inquired if there was a way to say who can or cannot come in.  Commissioner Nelson replied Ms. Keenan has stood up there saying she is going to be different from all of those other bars, and would like the Board to believe they will be different; but now she is saying that they may not be all that different.  Ms. Keenan stated they are going to be different because of the measures that she has explained. 

 

Mayor Randels stated he looks around and he has 12 unanswered questions that did not come from Mr. Keenan; and he is not happy.  He added there are some items that were spoken about; and things he has done over the years that are great, but there are a lot of answers he does not have.  He stated it will not work from his viewpoint for him to support it.  He stated there are a lot of questions that he has, and this is the Board's territory, but he was the first turkey to stand up there and lend his support based on what Mr. Keenan has done in Cape Canaveral; but he withdraws that.  He stated Mr. Keenan has been a friend to him throughout the years, but until he gets some answers about the alcohol at his son's graduation and things like that, he is not supporting it. 

 

Commissioner Infantini stated she does not understand why Mr. Keenan's son's graduation has anything to do with this.  Commissioner Bolin stated the Board is not there to discuss someone's character, it is talking about zoning and the requirements for it; and that is her concern. 

 

There being no further comments or objections, the Board approved the request by Vincent Keenan Realtors, LLC, for a Conditional Use Permit for Alcoholic Beverages for On-Premises Consumption in a BU-1 zoning classification on 0.57 acre, with the stipulations of no activities in the back area of the property; site planning, which will address sanitary, wall or vegetative buffer, parking, and capacity, minus stormwater; and no live, amplified music. 

 

 

 

Chairman Fisher called for the public hearing to consider an ordinance amending Chapter 62, Articles VI and XIII, Brevard County Code, to amend land alteration requirements for Agriculturally zoned properties.

 

Cynthia Fox, Planning and Development and Enforcement Manager, stated this is the second reading of the Land Alteration ordinance to allow borrow pits and land alterations on Agriculturally zoned properties to not have to incur that maximum acerage that would throw them into otherwise Industrial zoning classification. 

 

There being no further comments or objections, the Board adopted Ordinance 11-17, amending Chapter 62, Articles VI and XIII, Brevard County Code - Land Alteration Requirements for agriculturally Zoned Properties. 

 

 

 

There being no objections heard, the Board executed Binding Development Plan Agreement with Meadow Pine, LLC for property located on the northeast corner of Seminole Boulevard and Henry Avenue.

 

 

 

The Board executed Agreements with Brevard County Public Schools, Community Christian School, Diamond Community School, Holy Trinity Episcopal Academy, Melbourne Central Catholic High School, and Temple Christian School for funding from the Driver's Education Trust Fund in the amount of $235,194; and authorized the Chairman to sign any changes or amendments to the budget or contracts with previous approvals of the County Attorney and Risk Management. 

 

 

 

The Board approved a donation of approximately 115,000 cubic yards (+/-) of excavated fill to NASA/Kennedy Space Center from marsh restoration and stormwater management project on Pine Island; and authorized the County Manager to draft and execute a Memorandum of Understanding with NASA/Kennedy Space Center. 

 

 

 

The Board approved to apply for and accept, if offered, a Grant Award from the State of Florida E-911 Board, in the amount of $104,710; authorized Robert Lay to execute any necessary Grant Agreements; and approved establishing the Grant Project Budget. 

 

 

 

  

 

 

ATTEST:                                                                                                                                

                                                                        ROBIN FISHER, CHAIRMAN

                                                                        BOARD OF COUNTY COMMISSIONERS

                                    _______                      BREVARD COUNTY, FLORIDA

MITCH NEEDELMAN, CLERK