The Board of County Commissioners of Brevard County, Florida, met in regular session on August 28, 1995, at 5:30 p.m. in the Government Center Board Room, Building C, 2725 St. Johns Street, Melbourne, Florida. Present were: Chairman Nancy Higgs, Commissioners Truman Scarborough, Randy O'Brien, Mark Cook and Scott Ellis, County Manager Tom Jenkins, and County Attorney Scott Knox. Chairman Higgs led the assembly in the Pledge of Allegiance.

REPORT, RE: PARTIAL OPENING OF WICKHAM ROAD

County Manager Tom Jenkins advised Public Works Department reported, unless there is some unforeseen obstacle, they hope to have two lanes of Wickham Road open on Wednesday by the M-1 Canal project.

APPROVAL, RE: TEMPORARY LOAN FOR ROAD AND BRIDGE FROM SOLID WASTE

Motion by Commissioner Ellis, seconded by Commissioner Scarborough, to approve Budget Change Request approving temporary loan of not to exceed $300,000 from Solid Waste Management Department Fund 4300 to Road and Bridge Division Fund 1420, to assist with a possible cash shortfall because of clean-up efforts due to Hurricane Erin. Motion carried and ordered unanimously.

APPROVAL, RE: TEMPORARY LOAN FOR TRAFFIC ENGINEERING FROM SOLID WASTE

Motion by Commissioner Ellis, seconded by Commissioner Scarborough, to approve Budget Change Request approving temporary loan of not to exceed $200,000 from Solid Waste Management Department Fund 4300 to Traffic Engineering Program Fund 0290, to assist with a possible cash shortfall because of maintenance of traffic signals and signs due to Hurricane Erin. Motion carried and ordered unanimously.

DISCUSSION, RE: BREVARD COUNTY v. DAIRY ROAD PLANT FARM, INC. ET AL/ DAIRY ROAD WIDENING PROJECT

Assistant Public Works Director Ron Jones advised the item is associated with offers of judgment on the Dairy Road acquisition; staff recommends rejection of the offers which are far in excess of values; and they will go back to the property owners and attempt further negotiations prior to going forward with condemnation. Motion by Commissioner Cook, seconded by Commissioner Scarborough, to reject offers from Dairy Road Plant Farm, Inc. et al, Columbus and Nona Lee Story, DeLaine Henricksen, Charles and Rhoda Mae Belcher, and Dorathy Wells, for acquisition of rights-of-way required for Dairy Road Widening Project as they far exceed the value of the properties; and direct staff to review the counter offers and claimed severance damages in detail, and return to the Board with recommended action. Motion carried and ordered; Commissioner Ellis voted nay.

DISCUSSION, RE: EXECUTIVE SESSION

County Attorney Scott Knox inquired what the Board wants to do with the executive session that was scheduled at 4:00 p.m.

Motion by Commissioner Scarborough, to release the court reporter, reject the offer, and not meet in executive session. Motion died for lack of a second.

Motion by Commissioner Ellis, seconded by Commissioner O'Brien, to hold the executive session at 7:00 p.m.

Mr. Knox advised the Board will need the court reporter who will have to stay until 7:00 p.m. Commissioner Scarborough inquired if the Board has a more favorable offer; with Mr. Knox responding it has gone up. County Manager Tom Jenkins advised the Board also has the opportunity to make a counter offer.

Commissioner Ellis stated if the counter is higher than the previous offer, he will withdraw the motion.

Motion by Commissioner Scarborough, seconded by Commissioner Ellis, to release the court reporter, not have executive session, and reject the offer. Motion carried and ordered unanimously.

APPOINTMENT, RE: AFFORDABLE HOUSING TASK FORCE

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to appoint Jose Rivera, 5365 Areca Palm Street, Cocoa 32927, to replace John VanEwyk on the Affordable Housing Task Force, representing contractors, with term expiring August 28, 1997. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: ZONING RECOMMENDATIONS OF AUGUST 7, 1995

Chairman Higgs called for the public hearing to consider the recommendations of the Planning and Zoning (P&Z) Board, made at its public hearing on August 7, 1995, as follows:

Item A1. Patricia Jane Williams Bayer's request for CUP for security trailer (renewal) in AU zoning classification on 11 acres located on the north side of Camp Road, west of . S.1, which was approved by the P&Z Board for one year with one administrative renewal.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to approve Item A1 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item A2. Stewart and Rita Roland's request for change from GU to RRMH-1 on 1 acre located on the south side of Terri Lee Avenue, west of Satellite Boulevard, which was approved by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner Ellis, to approve Item A2 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item A3. Carl and Shirley Hargis' request for change from GU to RRMH-1 on 2 acres located on the southwest corner of Terri Lee Avenue and Satellite Boulevard, which was approved by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to approve Item A3 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item A4. Robert W. Ritter's request for change from RU-1-7 to TR-1 on .22 acre located on the west side of Alice Lane, north of Clear View Drive, which was approved by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to approve Item A4 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item A5. Brevard County Board of County Commissioners, on its own motion, authorized administrative rezoning of .90? acre located on the north side of Camp Road, west of Burgess Avenue, from TR-1 to RRMH-1, which was approved by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Item A5 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item A6. Samuel and Veronica Bowman's request for CUP for boat sales and service in BU-1 zoning classification on .30 acre located on the south side of River Park Boulevard, east of U.S. 1, which was approved by the P&Z Board, limited to sale of boat trailers only.

Commissioner Cook inquired why only sale of boat trailers; with Zoning Official Rick Enos responding there was concern from surrounding neighborhood about the use; and the applicant asked for sale of boat trailers only, and did not object to the limitation.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to approve Item A6 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item A7. Rita Roland's request for change from GU to RRMH-1 on 1 acre located on the north side of Missile Avenue, west of Satellite Boulevard, which was approved by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to approve Item A7 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item A8. Jimmy J. Messer and Kyriacos J. Lagges' request for CUP for treatment and recovery facility in BU-1-A zoning classification on 1.32 acres located on the northwest corner of Canaveral Groves Boulevard and Grissom Parkway, which was denied by the P&Z Board.

Jeff Smith, 3747 N. Indian River Drive, Cocoa, Administrator of Sun South Community Care, Inc., advised, in November, 1994, acting as an agent for Florida Department of Juvenile Justice, Sun South Community Care opened a therapeutic group home at 3150 Canaveral Groves Boulevard; and the P&Z Board recommended denial of the CUP which would allow them to continue to use that facility as a therapeutic group home for boys, ages 10 to 14 years. He stated on March 9, 1994, Sun South Community Care began serving juveniles in Brevard County; it has served in excess of 100 children in 18 months; and not once has one of the children been charged with a crime committed against a person or property within the neighborhood that child was living in while with Sun South Community Care. He stated he is here to rebuke the recommendation of the P&Z Board which found paramount an issue whether or not Sun South Community Care could accept liability in the instance one of the children did leave and go into the community and cause trouble; that is a standard not even the prisons are held to; and no other institution in Brevard County is held to that standard. Mr. Smith advised the language of the request for denial was based upon the fact that it was not compatible with the residential neighborhood; it is BU-1 zoning, and not zoned for residential; the boys are 10 to 14 years of age; he could show the Board in case files where things have happened to those boys that are worst than anyone can imagine; and because of that reason, he calls the boys victims. He stated the sentiment and some language of that meeting was that the boys should be put behind barbed wire where everyone can see them, and that Sun South was trying to hide them in the woods; as the County grows, it becomes more and more difficult to find a remote location; five or seven years ago, Devereux built a facility in the middle of a swamp; they had to chase away mosquitos, alligators, and wild hogs to build the facility; and seven years later there is a beautiful neighborhood surrounding it. Mr. Smith stated there are going to be problems when trying to have those kinds of programs in a growing community; however, the problem is not the program; the problem is juvenile crime; the answer is not to ignore the problem of juvenile crime; what has to be answered is if it cannot be here in BU-1 zoning, then where. He stated if Sun South has gone through every hoop, taken every direction from Brevard County, done all that is necessary to get the conditional use permit, located a house in an area which allows the conditional use, and the answer is no, the question must be where; is the answer the facility cannot exist in Brevard County; because if that is the answer, then the court must ask where. Mr. Smith advised their attorney Stanley Wolfman said the next step would be the circuit court; a recent 1995 Supreme Court decision upholds the 1988 Amendments to the Fair Housing Act that says group homes will be allowed to exist; but he is not asking the Board to do the legal thing, he is asking it to do the right thing. He stated developmental psychologists will tell the Board that boys ages 10 to 14 are developing a conscience; without parenting and nurturing, they will develop without guilt and will become career criminals; and requested the Board give the boys a chance to develop and a place to live.

Jannet Ewing, 479 Bimini Lane, Indian Harbour Beach, requested the Board not allow the group home in their area. She stated she worked with wayward youth in the past; she reviewed Sun South's program when it was presented to the Homeowners Association; and the questions she asked did not have adequate answers. She stated it came across that they were warehousing boys; to rehabilitate children they have to be in the open where the boys can see people are accountable to the community and the community can see what is going on; being secluded in the woods creates a devil's den of mischief; they have been hiding things in the woods and spooking horses; and it creates an environment where they can sneak around. She stated those boys are like the ones she had experience with; they come out of areas where there is darkness and where they are hidden or hiding; and inquired how can they rehabilitate the boys in an area where they are hiding and still being able to create mischief. Ms. Ewing advised she does not disagree they have a problem with youth crime and need to have places for them to go; she suggested Sun South communicate with facilities that have been successful in rehabilitating boys and know how to get the community involved; and they said they want community involvement, but they did not talk to the residents before dropping into the neighborhood. She stated the boys were stealing machetes and hatchets and terrorizing people, making them feel they had to lock their houses and put fences around their yards; she owns a lot three acres away from where the facility is being built; they have been looking to build, but cannot chance it now; they cannot get theft and vandalism insurance on a building site; and they would be throwing away money. She noted it will affect other people who have lots in the area when they know the facility is there; it is not conducive to the environment primarily because it is secluded; Sun South does not have a program and is warehousing boys for six months; the program she worked for was a minimum of one year; and she has never known a program that successfully rehabilitated children in six months. She stated they are not just wayward children; they are children that have been convicted of crimes; and that takes a lot more work than a six-month program. She stated she disagrees with them being in their neighborhood; and requested the Board help to keep them out.

Wilbur Streetman, 3240 Canaveral Groves Boulevard, Cocoa, advised there is one acre between his property and the group home; the way he found out about it was when his machete and ax were stolen and he had to go there to retrieve them; and Halloween night his vehicle was egged as he drove by. He stated he asked the people about it and nobody knew anything; but the boys were coming out of the woods towards the house. He stated he does not need to live in a neighborhood where he has to lock up his house and cars and everything he owns; and he would appreciate it if the Board would vote it down.

Linda Streetman, 3240 Canaveral Groves Boulevard, Cocoa, stated she does not want the home in their area; there has been spray paint on signs, windows and cars; windows have been broken; the boys have been in their garage; there has been violence; they are not regular kids, they are kids who have problems and need help; and she heard it is abuse, alcoholism, and vandalism. She stated they did not have problems until the home came in; since then they have had the Sheriff's Department called out; but she did not call when they took things from her property, and went over and talked to them. She stated she does not believe the boys are being supervised; there are too many children in the house; Sun South is not being honest about how many there are in the house; they said 6 and 8, but there has been more than that; and there has been plenty of problems since they came in. She requested the Board vote it down because they do not want it in their community.

Joseph Stadnik, 3422 Angelica Street, Cocoa, President of Canaveral Groves Homeowners Association, advised many years ago Canaveral Groves was established because people wanted to get away from city life and raise their families in an environment conducive to reduction of crime and all the things that go on in the cities; and people also came there to retire like he did. He advised of conditions in the area 35 years ago, and the community organizing an association and working with the County and State for improvements; and stated people felt secure in Canaveral Groves and very few places have fences other than to secure dogs and horses. He stated in November or December, Sun South moved into the Groves; he did not hear about it until February or March and tried to get information from the Sheriff's Department, but it was a hush-hush situation; so he visited the home where they converted one bedroom into two to take care of the children. Mr. Stadnik stated when people found out crime increased on a few streets, they set up a neighborhood crime watch system; the property close to the facility has been burglarized; the residents voted unanimously to reject the petition for the group home because most of them have small families and do not want to have fear in their community; and there have been many police calls and families are getting security systems which is not necessary in a community that has love and understanding between fellowman. Mr. Stadnik advised stability of the community is being downgraded because of fear; there are 1,400 homes and 15 square miles of land in Canaveral Groves; he is trying to build the community up; and if there is fear in the area they will not build up a good God-loving community. He stated he understands the home is necessary for juvenile delinquents, but it needs more land like a farm where boys can learn to grow things, take care of animals, use their skills, and be educated, not just a site where psychiatrists come in and talk to them, then they watch TV. He stated Sun South is being investigated; the IRS, State and County are investigating its operation; the community believes it is in the wrong place at the wrong time and should have more acreage; and requested the Board reject the petition.

Bill Godbout, 3216 Chica Street, Cocoa, advised his home is three blocks away from the Sun South Home; after observing what was going on there, he formed a grassroots effort and obtained several hundred signatures opposing the home in that area; and when they came in to start the group home and were told they did not meet the requirements, and if they are providing psychiatric care, they must have a conditional use permit. He stated this is not the first home Sun South has been into; they routinely go in and disregard the laws; Mr. Smith said he has not heard about police reports; however, he was at a meeting in the Sheriff's Office when he was told of over a dozen accounts when police were called. He stated there were assaults on counselors, and grand theft auto; Mr. Streetman's ax and machete were stolen; but the counselor did not report it to the home office. He stated those are things that concern them; juveniles are stealing weapons and no report has been made to Sun South; there is no control over them; and he has seen them in a tree breaking the branches and destroying the tree. Mr. Godbout stated he went to the home and told them two boys were in the tree; there were three boys inside the house and three more walking out of the woods; he was told by the previous administrator it was a for-profit organization and there was no more than six children; but he personally counted eight on that one day. He stated they have total disregard for the law; there is no structure at the home; the boys are hanging around playing basketball; girls are hanging out and the boys are putting their arms around them and kissing them; and inquired if it is a strict discipline environment they are providing for the children. He stated it is not what he wants in his neighborhood; if Sun South will provide a decent home with decent supervision and decent structure and discipline, then he would be for it; the children need something like that; but it is not what they are getting at Sun South Home. He stated it is a for-profit group; they ordered 400 acres in Port St. John that is in a wooded area; the backyard is literally a forest all the way to Port St. John; there is no control or border area; and the boys can go anywhere.

Mr. Smith advised there is no doubt the police have visited the home on a number of occasions; what he said was in no instance has one of the children been charged, let alone convicted of a crime against a person or property within the neighborhood; it is not right to convict those children of something they have not been charged with; and he resents the fact that since they do not like what is going on, they call the organization criminal. He stated there has been no IRS investigation; it was not in the Florida TODAY newspaper; that is totally false; what it said was Medicaid was going to do an investigation and would be interested to know if there is evidence of individual or group therapy; and they have billed zero dollars to Medicaid for individual or group therapy, so there is no way they can be found guilty of fraud for billing Medicaid. He stated since the residents do not like what Sun South is doing and the house, they are called criminals; and just because they do not like it is not sufficient reason to deny the existence of what is allowed as a conditional use. He stated if anyone took eight boys from any walk of life and put them together in a home, they are going to affect the neighborhood; and inquired if the children in the Commissioners' neighborhoods affect them. He stated that is not sufficient reason to deny the conditional use.

Commissioner Scarborough advised staff's recommendation says the Board can approve it only if the request is found to be compatible; it is not compatible pursuant to Section 62-1901(c); so the Board should deny it, which the P&Z Board did by unanimous vote. He stated Subsection 1(c) says, "The proposed use will be reasonably compatible with the character of the surrounding properties in its functions, hours of operation, types and amounts of traffic, etc."; and Subsection 2(h) says, "Other considerations peculiar to the proposed conditional use." He recommended denial of the petition. Motion by Commissioner Scarborough, seconded by Commissioner Ellis, to deny Item A8 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item A9. Daniel J. Marchion's request for CUP for alcoholic beverages on-premise consumption in IU zoning classification on .97 acre located on the northwest corner of South Industry Road and East Industry Road, which was approved by the P&Z Board.

Commissioner Scarborough advised the Board previously heard this as an adult entertainment issue; and recommended the County Attorney could advise the Board how this is different and yet a part of prior action before taking public comments.

County Attorney Scott Knox advised before the Board is a request for a conditional use permit for sale of alcoholic beverages; that is governed by the conditional use criteria separate and distinct from the adult entertainment provisions; the adult entertainment provisions prohibit the sale of alcoholic beverages in connection with adult entertainment activity; so this application has nothing to do with the adult entertainment matter the Board considered before.

Commissioner Scarborough stated they found requirements in the Ordinance that were not met; they were not waived; and they were not provided with permission from the Board to proceed with adult entertainment; and that is currently being appealed in the court. Mr. Knox stated there has been a suit filed; it was dismissed last Friday; but it may be refiled. Commissioner Scarborough stated that issue was resolved by the Board and is now in the courts; and requested Mr. Enos address the factual information that should be heard in regard to alcoholic beverage license because some information he received addressed the issue that has already been heard. Zoning Official Rick Enos advised the two issues are independent of one another; the Board should not consider any issues relative to adult entertainment; this is strictly an application for a conditional use permit for alcoholic beverages; and recommended the discussion revolve only around the permit issue.

Commissioner O'Brien advised he had a conversation with Mr. Marchion before he knew the item was on the Agenda, immediately after the last hearing about a different topic on the same property; and in that conversation he mentioned to Mr. Marchion how many of the surrounding property owners did not want anything in there that had to do with alcohol. He stated Mr. Marchion mentioned that the tenant had not paid the rent, and he was not sure he was going to keep the tenant; and he is the owner of the property, but not the person applying for the license. Commissioner O'Brien stated he wants it on the record that he did have a conversation with Mr. Marchion approximately three and a half weeks ago.

Chairman Higgs inquired, when people call on various subjects and communication is received, if they are not already a part of the public record, should they be recorded now or at the end of public comments; with Mr. Knox responding it should be before taking public comments so the applicant has an opportunity to hear what they are. Chairman Higgs advised she had a call from a concerned citizen, Mr. Pelicourt who objected to adult entertainment and to a CUP for alcoholic beverage; and she informed him the issue before the Board was alcoholic beverage only. She inquired if she should call out of order any comments in regard to adult entertainment; with Mr. Knox responding this is a separate proceeding dealing with alcoholic beverage sales; the adult entertainment issue was resolved once already; and this is a different application for a different use; so it is not a matter of being out of order, but it is a matter of being irrelevant.

Commissioner Scarborough stated the Board needs to make a finding of fact; and if the people talk about something that is not based upon alcoholic beverages, they are not giving the Board information for finding of fact; if everybody talked about adult entertainment, the Board would not have a basis to make a finding of fact; so it is important to use the time given to discuss the alcoholic beverage license if they expect the Board to have a finding of fact in their favor.

Attorney Richard Torpy, representing the applicant George Abchal, advised the Board received information that is in error; the suit that was filed against the County was not dismissed; one count was; in fact an order was issued requiring the County to respond within 20 days or issue the license; so that suit is alive, but a separate count of that was dismissed for refiling. He stated the rent was not required until September, but it has been paid; and the Adult Entertainment Ordinance does allow alcohol to be served in an adult entertainment establishment, but they cannot expose anatomical areas. He stated to address the issue of whether it is consistent or not, it is important to understand why the establishment is being placed in a light industrial zone; basically the reason for being there is because it is preferred for adult entertainment by the County so it is off the beaten path and children will not see it when they are in cars with their parents; and it is not in a crowded parking or driving area. He stated it is one of those things that nobody likes and nobody wants it next to them, but it has to be allowed somewhere, so they picked an area where it will have the least negative impact on the surrounding community. Mr. Torpy advised the park is uniquely qualified for the purpose of issuing the CUP for alcohol; there are surrounding businesses that do not want any bar around them; that is true in any jurisdiction; people do not want them near their houses or shopping centers; all those arguments are correct; however, there is approximately a half mile of roadway before getting from U.S. 1 to the facility; so it is off the beaten path and would not have problems that would be typical in a shopping center where someone may walk out and do something to a patron that is there for a different business. He stated primarily those operations open in the evening, and most of the industrial uses will be closed down for the evening; there will be very little interaction between patrons that may be there for other business purposes and those visiting the establishment; so those are significant reasons why it is consistent with the area. He inquired where is alcohol consistent with anything; and stated there is no such thing as a zone for just bars; the County does not have it; and they have to go somewhere. He stated there is a railroad track; the primary line everyone has to cross over is about a half mile away; there are a few feeder lines that have not been used in years in very close proximity; there is a Rinker Material Corporation plant less than 1/4 mile away; the closest AU zone that has a house on it is 1,300 feet away; and the closest residential zone is 1,450 feet away, well beyond the requirements for serving of alcohol in proximity to churches, schools, and residential zones. He stated there is no specific reason and no reason at all not to find this use consistent with this zoning; it will not negatively impact individuals any more than it would in any other zoning district; it does not provide any type of safety hazard that would be associated with any form of alcohol use anywhere; all the arguments made to not have this use in this zoning would apply to any zoning district where someone would be drinking and potentially driving; but that is not a decision this Board can make; it cannot legislate whether someone can consume alcohol or not; it can only hope they do it responsibly; so he would ask the Board to follow the recommendations of the P&Z Board which had much discussion on the issue, got heavily into all the issues, and voted 5 to 3 in favor of the approval of the CUP.

Ruth Babcox, 1630 Larchmont Court, Merritt Island, advised she hopes the Commissioners received the letters from the owners at 620 and 640 S. Industry Road, read them, and noted their objections to a bar being installed next to them. She stated the feeder line is used two or three times a week; and she drove through the park one evening, and there were cars on the feeder line. She stated Commissioner Scarborough and Mr. Jenkins are aware of the flooding problems they had; they walk around in backed-up sewage; and she cannot see approving a large capacity septic tank until the flooding problem is resolved which is very serious medically and emotionally. She stated they move large equipment on trailers; they are there at night, not every night, but quite often for different clients who need equipment on an emergency basis; and as far as hiding it from children, her grandchildren go to the office and will see a bar there. She stated Mr. Marchion bragged to her husband that the New Jersey Mafia had approached him about putting in an adult video store; she does not know where the people are from, but does not believe they are from Brevard County; and they object to a bar being put in an industrial area because it does not belong there since it is not an industry.

Steven Ward, 2968 Long Lake Drive, Titusville, advised his business is southwest of the property proposed for the CUP; and he is in total objection to having a bar in the industrial park because it brings safety concerns with heavy traffic and heavy equipment that travel the roadways. He stated the roads are inadequate for the traffic that is there now; they have a flooding problem; and toilets and septic systems are just now beginning to work again. He stated he understands it is a CUP for consumption of alcohol, but the adult entertainment and alcohol use go hand-in-hand. Mr. Ward stated there were several points made; Mr. Torpy said there was no ball to hide about adult entertainment at the Zoning meeting; and several comments were made at the Zoning meeting which concerned him. He stated they claimed that approximately $30,000 was invested in upgrading electrical, septic and plumbing, and the work has not been completed yet; according to John Smith, acting Building Official for Brevard County, no permits were issued on the property; so either the work has been going on without permits or no work has been done. He stated all signs of the building show no work has been done; the planned use is adult entertainment; the CUP for alcohol is just the first step; and under Section 62-1901 of the General Standards of Review, the property needs to meet setback and other relative factors particular to the proposed conditional use. He stated the real intent is adult entertainment, so he cannot see how it can be separate when it is clearly stated. He urged the Board to deny the CUP.

Ben Adams, 445 Willow Green Lane, Titusville, advised he is a business and property owner of A&W Fixtures, 529 S. Industry Road, across the street and one lot west of the property where the CUP is being requested; he heard the adult entertainment disclaimer; however, they cannot sit back at this stage and not bring that issue up because it is relevant. He stated adult entertainment businesses are undesirable in any community; only strict non-compromising laws will stop them; it is the only protection they have in the community; and he is asking for that protection because they are at risk at this time. He stated the CUP does not pass the test of the real issue which is adult entertainment; and the statements made by the requesting party's counsel on August 7, 1995, are, "Adult entertainment is the only intended use for the property. Let me make it clear, there is no ball to hide." Mr. Adams stated that statement was made with purpose to state up front they are planning an adult entertainment business; and the Board's approval today will infer approval of their planned use and will obligate future approval of adult entertainment in the area. He stated the P&Z Board has already fallen in that trap; during the August 7, 1995 meeting, the motion to approve the request was made because adult entertainment has to be somewhere and not visible to the public; that was followed by the Chairman's dissertation on the desires of this Board to place adult entertainment in industrial areas; and the vote resulted in an approved recommendation. Mr. Adams stated the P&Z Board's item was a CUP for alcoholic beverage, but it did base its recommendation for approval of the alcohol as though it was actually for the adult entertainment; and that Board did a disservice to their community. He stated Mr. Ward and Commissioner Scarborough mentioned items within the document that disallow or should be considered when CUP's are generated or approved; this request does not pass any of them, especially 2(h); and as a minimum that would have given the P&Z Board the right to deny the request for the CUP. He stated he hopes the issue is clear on exactly where it is going, and the Board understands the community does not want or deserve to have the moral and economic burden placed on them; at this point of the process it is within the Board's legal powers to prevent it; and he is confident the Board will deny the CUP.

Joseph Stadnik, 3422 Angelica Street, Cocoa, advised communities such as Brevard County are built on a foundation of a strong moral code; families, recreation, transportation, jobs, police protection, and a good lifestyle are what they want and need in their area; and sometimes they conflict with the amount of money gathered in the coffers. He stated alcohol is something they can do without; it breaks up a family and works on the mind; the family is more important than alcohol; and alcohol is not good for a community that wants to have family-type organizations. He stated most politicians get donations from liquor industries; but if the Board wants a family-oriented community, there should be no alcohol, dope, and so forth. Mr. Stadnik advised of a report from the Sheriff's Department on the influence of alcohol on arrests, depicting last year 1,790 arrests due to alcoholism, 213 liquor violations, 408 DUI's, 3 prostitutions, 8 intimidations, 5 forgeries, 105 assaults, 27 burglaries, 25 shopliftings, 305 simple assaults, 128 drug violations, and false impersonations. He stated the greatest amount of arrests were due to alcohol; people know it distorts the mind, body, families, and community; and requested the Board deny the request if it wants a God-fearing family-oriented community.

B. B. Nelson, 3535 North U.S. 1, Cocoa, better known as the Cidco Building, advised he has been in business there for 30 years; and urged the Board to deny the CUP, as the operation is not wanted, not needed, and not appropriate in Cidco Park. He stated they have a major problem driving around during the day because of water; putting a few drunks in there at night could drown them; he has worked for nine years trying to get drainage in; and on July 17, 1995, they received approval from the St. Johns River Water Management District and Corps of Engineers to put a 40-foot drainage ditch in Cidco Park that will shunt the water from Grissom Road which the County dumped on them around to a major ditch. He stated in the past it has gone down the streets; the County is working with them to get some service; and the equipment to put it in has been ordered. Mr. Nelson stated they do not need alcoholic beverages in Cidco Park with all the machinery, trucks, trains, etc. on a two-lane road with heavy traffic; they are trying to put in additional roads from Rinker to Cidco Road; and the tenants in the Park will pay for the rock to put the road in and the asphalt. He stated they asked the County to design the road and get the permits to correct the curve in there now; and they have been trying to do something on their own in the Park for 30 years.

Al Jenney, 3404 N. Indian River Drive, Cocoa, advised there seems to be a misunderstanding between what he heard from the County Attorney and what he heard from the Board regarding adult entertainment; it is either immediate or intended in the future that it first becomes a bar then an adult entertainment establishment; and inquired if this is their only chance to speak against adult entertainment or sexually-oriented businesses.

Commissioner Scarborough advised the Board heard and denied the permit for an adult entertainment establishment; it was required to have a waiver for the distance, and the County Attorney said the Board could not waive it; it was a legal matter, and the Board had no capacity to grant the permit; and that decision is in the courts and being challenged. He stated the Board is not in the position of making any determination on adult entertainment tonight; if they prevail in court and a liquor license is granted, they could tie the two together; but the decision tonight has to be based on compatibility and if alcoholic beverages there is compatible.

Chairman Higgs advised the CUP for alcoholic beverages is the only issue before the Board tonight. Mr. Jenney inquired if there will be an opportunity later if it changes into an adult entertainment establishment; with Chairman Higgs responding the Board did not approve an adult entertainment establishment; any re-hearing by the Board will be publicly noticed; but at this point the issue is the CUP for alcoholic beverages. She requested Mr. Jenney speak to that issue.

Mr. Jenney advised some statements made by the attorney regarding access and railroad are not in order; it is a direct path from U.S. 1 pass the bar location to Grissom Road, SR 524, and SR 528; and he has personally had two railroad cars of steel brought in on the feeder line recently, so there is railroad traffic moving on that line. He stated the railroad feeder is immediately adjacent to the property and not in the middle of the Park as reported to the P&Z Board. Mr. Jenney stated they moved into Cidco Park because it was an industrial park; they were among others of their kind; and that is his understanding of the intent of zoning. He stated had there been a bar there, they would have looked for a different industrial park or different County when they moved from Dade County in 1978; and inquired, other than depending on zoning to do its job, how could they protect themselves from a breach of proper zoning, and what other precautions could they have taken to insure their investments in an industrial park would stay in an industrial setting. He stated the impression he got at the Zoning meeting was there is no place lower than an industrial park so let bars be there because they have to be somewhere; the Zoning Board members feel that industry is the lowest place in the community; he invested capital, real estate, and equipment, hired employees from the community, and pays 16 different taxes; and he takes offense to that. He stated he would be surprised if investment banks, real estate companies, Brevard County Manufacturing Association and Brevard Economic Development Council would like the Board to send such a message to industrial concerns considering coming to Brevard County or businesses moving into a county which would at some future date allow inconsistent and non-compatible bars to become their neighbors; and requested the Board vote against allowing that type of operation in an industrial park. He stated if they must be allowed in the County, they should be off by themselves; perhaps the County should establish an area specifically set aside for decadence, corruption, perversion, and bars; and he takes exception to anyone who proposes that it is the definition of an industrial park. County Attorney Knox advised a gentleman asked whether or not there would be an opportunity for the public to come to the Board in the event the adult entertainment issue resurfaces; the answer may be twofold: (1) if the judge orders the license issued, it would not come back to the Board; and (2) if there is a re-application filed for any reason, the first step in the process involves the Planning and Zoning Division which has to approve or deny it; and only if it is denied would it come back to this Board if an appeal is filed. He stated as for what Mr. Torpy said, he stands corrected; he indicated they could not have an adult entertainment establishment with sale of alcoholic beverages; he was incorrect in saying that; and what he should have said is the Ordinance prohibits nudity as defined in the Code in connection with the sale of alcoholic beverages.

Chairman Higgs inquired if the court rules against Brevard County, could it direct the Board to allow adult entertainment in that area, and there would not be another hearing; with Mr. Knox responding that is correct. Chairman Higgs inquired if they re-applied, would it become a public process; with Mr. Knox responding if the license application is denied by staff and an appeal is filed, then it will come to the Board; otherwise staff can make the initial determination whether it should be granted or denied based on the criteria in the Ordinance. Chairman Higgs inquired if it could be approved in industrial zoning categories if the distance was proper; with Mr. Knox responding right now the distance limitation is one of the issues that is preventing the application from being approved; and that issue, if it ever comes back to the Board, would be in the form of rezoning of the property that is causing the distance limitation to be in effect. Chairman Higgs inquired if the distance was the issue the Board heard and not the adult entertainment; with Mr. Knox responding yes.

Attorney Torpy advised the Board is sitting in a quasi-judicial fashion to look at facts only; B. B. Nelson summed up what the Board heard, and that is they do not want it and do not perceive that they need it; but he also said it is not appropriate; and appropriate by the County's standard is based on fact. He stated the best facts he can give the Board is that the adult entertainment and issuance of the CUP was reviewed by the Building Division and approved; the P&Z Board reviewed and approved it; Consumer Health Division, the Fire Department, and all the people in staff positions reviewed it and approved it; and the recommendation from staff to the P&Z Board was for approval. He stated the Board heard no facts tonight that counter or contradict its staff's recommendations on the CUP; the people are upset that this type of use may end up in an industrial park; he understands that frustration and would probably be here if he had the same thing happening; however, it is allowable by the Ordinances. He stated the Board, as the implementer and overseer of the Ordinances, has a legal and ethical obligation to follow its Ordinances; in this case that requires the Board to follow its staff's recommendation and P&Z Board recommendation and do the thing that is lawfully correct; and to deny it would be based on no substantial facts of record. Mr. Torpy advised every argument made by individuals who voiced an opinion applies to every other zoning category where alcohol is allowed; it is a tough issue; and wherever the Board allows a bar there is bound to be problems and concerns about traffic, crime, people drinking, etc., but those are concerns; and as legislators, the Board has to stick to the facts. He stated the facts are there is not a single Department, with exception of Planning and Zoning, that did not approve it. He stated the issue of the 1,500 feet does not apply to alcohol; it may be 300 or 500 feet from a church, etc.; and the closest is 1,300 feet, so they are well within the range. He stated there is not a single issue before the Board tonight that it could use to base a denial of the CUP on; and urged the Board to grant the CUP. He stated they will deal with the adult entertainment issue later; and on the sewer issue, there is a requirement for a substantial upgraded system to be placed in there by the applicant; the work began and was halted based on the Board's decision on the variance; but it has to be done before he could use it.

Commissioner O'Brien inquired if they intend to put an adult entertainment establishment in that location; with Mr. Torpy responding yes if it is approved; and that has always been the intention.

Chairman Higgs advised she reviewed the Ordinances regarding the CUP; it clearly states the P&Z Board recommends to the Board of County Commissioners denial or approval; so it is the Board's job to deny or approve and not simply rubber stamp the recommendations of the P&Z Board. She stated specific general standards are listed in the Ordinances that must be satisfied; the Code states, "Conditional use permit will be compatible with the general purpose and intent of this Chapter and the applicable zoning classification"; and in her mind the zoning classification of industrial and the use being proposed are not compatible. She stated paragraph (b) states, "The proposed conditional use will not result in a detrimental impact on surrounding property based upon the number of persons anticipated. . ., the degree of noise, odor, or other potential nuisance factors generated by the conditional use, and the effect on traffic within the vicinity caused by the proposed conditional use"; and the proposed use will have detrimental effects on adjoining properties. Chairman Higgs advised the Code also says, "The proposed use would be reasonably compatible with the character of the surrounding property in its function, hours of operation, type and amount of traffic to be generated, building size and setback, and other relevant factors peculiar to the proposed conditional use and the surrounding property"; in looking at the uses in the area, she feels industrial uses are not compatible with the character, function, hours of operation, or the type and amount of traffic that are being proposed in the CUP with provision for alcoholic beverages; so it does not meet the standards of the Code.

Commissioner Scarborough advised under Section 62-1901, the use is not compatible with the area because there are no other bars or institutions of that type; it is an industrial park; people purchased in the area to do industrial business; and there are traffic, septic tank, and flooding problems. He stated it would not be conducive to the overall business climate for which people have invested their money; therefore, he would move to deny the request.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to overrule the P&Z Board and deny Item A9.

Commissioner O'Brien advised they have the intention of using the facility for adult entertainment; and that intention backs up the incompatibility issue.

Chairman Higgs advised the adult entertainment issue is not part of her decision; and her decision is based solely on the application for alcoholic beverages which is the issue before the Board. Mr. Knox advised since that is a fact of record, the Board can consider it in making its decision.

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

Item A10. Lloyd S. Vose, Jr.'s request for substantial expansion of the pre-existing use to allow CUP for alcoholic beverages on-premise consumption in BU-1 zoning classification on 0.30 acre located on the southeast corner of SR A1A and 35th Street, which was denied by the P&Z Board.

Lloyd Vose, 235 Birch Avenue, Merritt Island, submitted a petition taken door-to-door of residents in the neighborhood and people visiting the beach; and stated they obtained 92 signatures that afternoon. He indicated Steven Jacovitz's statement at the P&Z meeting that there were only two businesses was inaccurate, because there are a sailing instruction school, furniture store, Italian Restaurant which serves beer and wine, a Mexican Restaurant which serves beer and wine, two seafood restaurants which serve alcohol, a mechanic's shop, a bait and tackle shop, a surf shop, a delicatessen, a convenience store, and numerous beach rental properties, plus Patrick Air Force Base which also serves alcohol. He advised he is asking for a beer and wine permit only and do not want to pursue a full alcohol license; and he has no intention of doing that. Mr. Vose stated the reference to Riptide helping and furnishing liquor to Illusions is absolutely false; Illusions is an adult entertainment establishment across the street which already has a beer and wine license; and his goal from the beginning was to have a place that all people can enjoy. He stated the statement made by Mr. Jacovitz that he owns a 75'x50' spot is also false; he owns Lots 9, 10 and 11 from A1A to the beach which is 50 feet wide and 236 feet long; and the statement that he would build on the ocean is also false because the building has been there since 1955, and there are no plans to expand the building itself, just the CUP which is classified as an expansion of the existing use. He stated Mr. Jacovitz also said there is not one neighbor who wants the bar to open; it is not a bar, it is a concession; and Mr. Jacovitz is trying to prejudice the people in the area, P&Z Board, and Board of County Commissioners with false statements.

Suzie Biery, 200 International Drive, Cape Canaveral, advised she sent a letter to the Board and will read it as she did at the P&Z meeting of August 7, 1995; and read as follows: "The above mentioned property in which the owner is petitioning for substantial expansion of pre-existing use and conditional use permit for alcoholic beverages is all based on the premise that the property is zoned BU-1. I contend that this property is not BU-1 at this time, nor does it fall under a pre-existing use category. I represent the owner of the property adjacent to the south of Lots 9, 10 and 11, Mr. Vern Thomas of Lot 8. Around February or March of this year, I began researching the area for possible purchase of property by Mr. Thomas. He was considering the purchase of Lots 9, 10 and 11 for what we thought at this time would be commercial use. After inquiries, I realize the property lost its use as BU-1 and would then fall under residential use. I have supporting documentation to this. Based on these findings, the investment plans changed for Mr. Thomas. Instead, he purchased Lot 8, a residential lot, believing Lots 9, 10 and 11 would now also become residential. Most certainly he did not invest his money on this residential property ever imagining a bar could possibly be next door; yet within a week or so of Mr. Thomas' closing, we find that Lots 9, 10 and 11 have been sold and with commercial use intended. Please refer to the attached letter from Mr. Woodruff of Planning and Zoning dated April 24. He states that the property is not consistent with the Future Land Use, therefore it is nonconforming. Furthermore, nonconforming structures abandoned for more than 180 consecutive days are to be re-established consistent with the Future Land Use classification which is residential. I was told by Planning and Zoning that indicators of abandonment would be evidenced by utility bills, licensing, or obviously no business in operation, so I've attached a letter from FPL stating that the electrical power was disconnected on August 8, 1994. Also see attached letter from City of Cocoa showing termination as of August 17, 1994, and no usage on the meter thereafter. Also a letter from the Brevard County Tax Collector's Office stating the license has not been re-issued since the license was first issued September 30, 1993. No payment nor license was in use or activated for any part of '94 and certainly not '95 by this previous business. In fact, it's my understanding the petitioner was issued a permit based on the County's assumption that there was a continuance of business activity at this property. This was based on a copy of a previous license, yet the copied license was from 1993. I know the petitioner has put time, money, and effort into this property and this is not meant to be personally directed at him; this is about rights, property rights. As I stated earlier, with the knowledge I gained about this property, I urged Mr. Thomas to retreat on his plans of purchasing Lots 9, 10 and 11, to which he subsequently bought Lot 8. He too has invested plenty of time, money, and effort into buying this property. He believed the area to be residential and commercial use to not be re-established next door, so we ask if we couldn't use Lots 9 and 10 commercially, why would someone else be allowed to. I request that you look into this matter before proceeding further." Ms. Biery stated pre-existing use allows continuance of a BU-1 classification, yet this pre-existing use expired after 180 consecutive days of abandonment; the documentation used to determine a pre-existing use was false; it was outdated, incorrect, and misleading; and the misleading information is apparently what the Building and Zoning Divisions used to grant the use and permitting of the property as BU-1. She requested the Board look into the matter and declare the property as residential as the Future Land Use Plan dictates. She stated as of last week she presented proof that the property was abandoned and she did not understand why it was BU-1; however, they made an error and the people have to pay the price for that error. She stated all the plans they made were based on something they were told; now that is wrong; there is no place else to go other than to get a lawyer; but she does not want the stress and headaches. Ms. Biery stated she wants the Board to know what she went through and what it cost her; she has sent letters and told people for months before it even came to this point to stop it and not let it get this far because something is wrong; but nobody listened or cared, and nobody would stop anything. She stated she was even told to let them open so she could shut them down.

Rudy Bustamante, Jr., 235 Birch Avenue, Merritt Island, advised he supports the request for the CUP; the BU-1 issue has already been settled and should not be addressed; Mr. Vose has a letter from Mr. Enos stating he has administrative approval, it is BU-1, and it was sold to him as BU-1; so they proceeded with their plans for the last four months. He stated he helped to collect the signatures on the petition in support of the CUP; the improvements Mr. Vose made on the property inside and out will make it more than compatible with the area; numerous businesses there serve beer and wine; and that is all he is asking for, a beach concession, not a bar. He stated it will be more than compatible with the neighborhood.

Solange Keating, 1155 N. Courtenay Parkway, Merritt Island, advised she works for Mr. Vose, and if the Board says no, she would not have a job because the place is small and he will not need her. She stated she would find it very hard to get another job; but if the Board says yes, the place will be very respectful, and she will do her best to make sure everything is in order with no drugs.

Ruth Hurt, 3577 S. Atlantic Avenue, Cocoa Beach, presented photographs of the residential area, and stated she does not know where he got 92 signatures, but the residents on either side of her have written to the Board to deny it. She stated the P&Z Board denied it; it is not consistent or compatible with the neighborhood; there is an adult entertainment facility across the street; but on May 22, 1995, the Board denied an alcohol permit for it; that was 90 days ago; and she hopes the Board will do it again for this business. She stated there will be an increase in traffic and noise on A1A; it would be right next to a house and within ten feet of the lot line; and the property was abandoned, so she wants to know how Mr. Enos can administratively change it without notifying the property owners in the area. She requested the Board deny the CUP because it is inconsistent.

George Hurt, 3577 S. Atlantic Avenue, Cocoa Beach, advised the area is primarily residential; the businesses Mr. Vose referred to cover a whole mile; they are only concerned about the area they live in; and there are only three businesses there, a hotel, Mr. Vose's business which was a surf shop, and the Illusion Showbar across the street. He stated there was a car repair shop behind Illusions, but he is not sure if it is there now or not; the character of the neighborhood 17 years ago was a mom and pop restaurant that served beer and wine across the street, a surf shop, and motel; and he understood from George Edwards that the surf shop was a conditional use and would be residential when it quit being a surf shop. Mr. Hurt stated that has changed; the mom and pop restaurant became an adult entertainment establishment which happened before the County regulations were instituted; and the Board has since denied a hard liquor CUP for that establishment. He stated Mr. Vose has good intentions of serving the community and beach, but the next person who owns it may make changes that could be detrimental to the community; and this may be his only chance to talk to the Board about it. He noted Mr. Vose has concerns about his investment, but this will impact his investment also; his property is the only investment he has; and when he sells it, Mr. Vose's business may take away from the value. He stated he is not against bars, but is against bars in residential areas; he has seen things change and go down hill; and he does not want that to happen in their area.

Mr. Vose advised Ms. Biery and he are not enemies; her concerns are the same as his because from the beginning they were told different things; but the request for a CUP has nothing to do with that. He stated from the pictures presented to the Board, it can see that directly across the street is a vacant lot; they have researched for two months before putting a deposit on the property; they came to many offices at Viera and searched through many records to find out if there were underground tanks, what the building was originally, etc.; and every office they went to they were told it was BU-1 and they could apply for a CUP. Mr. Vose stated the building is in an area that has tourism and a public access street next to it; there is a hotel for tourists who visit the area and use the beach; they knew there was a community there also; and their main concern was making a business that would be compatible with the neighborhood and tourism and be profitable for the area. He stated any business person would take into account those things before putting any money down on anything.

Commissioner Ellis requested an opinion from the County Attorney whether the property is BU-1 or not; with County Attorney Knox responding Rick Enos has a better idea how that was established.

Zoning Official Rick Enos advised the property is zoned BU-1, has been zoned BU-1 for many years, and was zoned BU-1 prior to the Comprehensive Plan of 1988; the Plan describes the area as residential; so at that point, the BU-1 zoning became inconsistent with the Comprehensive Plan; nonetheless, the business kept on operating and had certain nonconforming rights. He stated at the time the Comprehensive Plan was adopted, it changed the status of the business to nonconforming use; an occupation license was issued after review by staff; once the license was issued, they qualified for pre-existing use which he issued administratively; and that is where it is now. He stated the request is for expansion of the pre-existing use; there is no administrative authority to expand pre-existing use; and that requires a Board action.

Chairman Higgs inquired if the CUP for alcoholic beverages must meet the same standards as any other CUP; with Mr. Enos responding the expansion is to add the CUP for alcoholic beverages, and the standards to the CUP as well as the standards that address substantial expansion should apply.

Commissioner O'Brien advised the P&Z Board recommended denial; staff recommended denial because it is not consistent with the residential character of the area, does not represent site improvements which would enhance the pre-existing use, does not elevate the property towards compliance with the Land Development Regulations, and is not compatible with surrounding land uses and appears to be a new use; and because it is not in compliance, he will move to deny.

Motion by Commissioner O'Brien, seconded by Commissioner Cook, to deny Item A10 as recommended by the P&Z Board. Motion carried and ordered; Commissioner Ellis voted nay. Item A11. River Palms Mobile Home Park Association, Inc.'s request for CUP for residential recreational marina in RU-1-9 zoning classification on 18.2? acres located on both sides of South Banana River Drive, south of SR 520, which was approved by the P&Z Board.

Motion by Commissioner O'Brien, seconded by Commissioner Cook, to approve Item A11 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item A12. Victor Herrera's request for change from AU to RR-1 on 2.73 acres located on the west side of Weber Road, north of Valkaria Road, which was approved by the P&Z Board.

Motion by Commissioner Cook, seconded by Commissioner O'Brien, to approve Item A12 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item A13. Barbara Brown's request for change from GU to AU on 5.29 acres located on the west side of Old Dixie Highway, south of Grant Road, which was approved by the P&Z Board.

Motion by Commissioner Cook, seconded by Commissioner O'Brien, to approve Item A13 as recommended by the P&Z Board. Motion carried and ordered unanimously.

The meeting recessed at 7:16 p.m. and reconvened at 7:26 p.m.

Item A14. Brevard County Board of County Commissioners, on its own motion and without consent of any owner, on October 24, 1994, directed an amendment to the Official Zoning Maps on .13 acre located at the northern terminus of Sparrow Drive in Waterway Estates, 4th Addition, from GML to RU-1-11, which was approved by the P&Z Board.

Joyce Wholey, 452 Eagle Drive, Satellite Beach, advised her house is located opposite the subject property; she attended the P&Z Board meeting where a lady said she cannot imagine the County was so badly in need of money that it sold a useless piece of property to someone; and inasmuch as the acreage is .13 acre it does seem rather useless. She stated it was kept in good repair by the people who live on either side of the property for several years; and it has not been used for anything other than an extension of their yards. She stated she has no idea what the new owner will do with the property; the lot size does not allow a single-family residence; she assumes it has to be rezoned; and inquired if it is, what can the owner do and not do with it. She inquired if in the future Ms. Griffin decides it is useless and needs a variance to do something with it, will they in the area who are concerned about it be notified of that meeting.

Patricia Anderson, 445 Eagle Drive, Satellite Beach, advised she has lived in the area for 20 years and cannot believe the County sold that property; it was for an electrical line; they took the line out and sold the little parcel that is not big enough to build anything on; and inquired why the County did not let the two people on either side of it confiscate it or buy it. She inquired if the rezoning to single-family residence means they are going to build a house on the parcel; and if so, it will be partly in the water which nobody will let happen. She stated the whole thing has been wrong from the start.

Lynne Barlet, 449 Sparrow Drive, Satellite Beach, advised she lives adjacent to the property and came to the Board trying to acquire it or have the County vacate it; instead it was put out for closed bids; and they did not have the option to out bid the buyer. She noted it should have gone up for auction. She stated she understands the County wanted to make money on it, but they were willing to bid higher than the person did if they had the opportunity; and now they have neighbors they do not know, and do not know their intentions. Ms. Barlet advised another thing that upset them is the petition was made by the County so they do not have an option to question the persons who purchased the property about their intentions; she offered to buy out their bid at a higher price and they refused; they said they were going to have picnics there and dock a boat; but the property does not have room, and it will be a mess for the neighborhood. She stated she gave a petition to the Board with 30 to 40 names of neighbors who are upset about this; originally the County had it as a park and was going to put in a boat lift, but the entire neighborhood voted it down because of traffic problems; it is on a cul de sac and there is no way to get in or out without driving on people's driveways; so they are concerned with what the people intend to do with it. She stated now they are next to an uncut lawn; the buyers cut it once a month; and she does not know why they want it or why they pay taxes and occasional upkeep on property they cannot use.

Chairman Higgs inquired what was the original use of the property; with Commissioner Ellis responding it was an easement for a power line that came across the property; the Board tried to vacate it to the two adjoining property owners; but a legal opinion said it could not vacate the property except to the original owner who platted it. Commissioner Cook advised the intent was to vacate it to the adjoining property owners, but the Board was told legally it could not do that, so it was put out for bid; the expectation was that the people who lived on either side of the easement would bid on it and get it; and he is not sure why a third party would be interested in that land.

Chairman Higgs inquired what can be done with it; with Mr. Enos responding not a whole lot; the parcel is undersized and does not meet size requirements for any current zoning classification, including GML; and no structures can be built on the property at this time.

Commissioner Cook inquired if the person who bought the property is present; with Mr. Enos responding he does not believe so. Commissioner Cook suggested the item be tabled because there are additional questions that need to be answered. He stated he has seen the property which is a narrow strip that leads to the canal and gets wider at the end; it is essentially useless for building or using it for anything; and he would like to give the adjacent homeowners more time to get with the person who bought it and see if they can work something out.

Commissioner Ellis stated the neighbors were present when the Board tried to vacate it and could not get a majority, so it ended up going for sale based on a legal opinion; and it cannot be left as GML, so they have to rezone it to some category that is compatible with the surrounding neighborhood. He stated RU-1-11 requires a minimum 1,100 square-foot house, and there are other restrictions.

Motion by Commissioner Cook, seconded by Commissioner O'Brien, to table Item A14 until September 27, 1995 Board of County Commissioners meeting for more information, and to allow the neighbors and property owners to work something out. Motion carried and ordered unanimously.

Commissioner Ellis requested the County Attorney address the issue why it cannot be left as GML.

Item A15. Rowland J. Neil's request for change from SEU to RR-1 on 2.762? acres located on the east side of McGraw Avenue, north of Lake Washington Road, which was denied by the P&Z Board.

Rowland Neil, 2445 McGraw Avenue, Melbourne, advised the Zoning Board vote shows 6 to 2, but he understands it was 4 to 3; and inquired if he is wrong. He stated he has owned the land for 12 years; it was landlocked; there are three houses that adjoin it; he owned the center piece also; and he had the only access from Lake Washington at that time that used to go to the water plant. He stated they cut the road through, made it a public road, and gave it a name, and he loss a little on the front of it, but it came out to 2.8 acres. Commissioner Ellis inquired if Mr. Neil owns Parcel 509; with Mr. Neil responding he sold it in 1986 once they made McGraw a road because he did not need the access on Lake Washington. He stated a person at the P&Z meeting said he stands to make substantial money off this land; that is incorrect; he had $50,000 in it when he bought it in 1984, and he is trying to sell it for $55,600; so he does not see where he made a lot of money off the land. Mr. Neil advised he works for Dade County and has been in the area two or three times a month for the last 12 years; he will probably retire here; and he rode horses across the land and knows several people who ride through the area all the time. He stated he has been working on some of the property he has in Chestnut Run, and drove around to see who had horses; he found 20 total visible horses in people's yards from where McGraw meets Lake Washington; House of Arabia has several horses; LTD, which is right down the street, has several horses; he has owned horses and rode in the area many years; and he cannot understand why everything would be zoned for horses and this property would not. Mr. Neil stated he did not think it would be a major problem to change it over; the water to all the houses in the area is Melbourne City water; and a computer printout had 8 houses, not one over 3 acres, that allowed horses. He stated the gentleman who wishes to purchase the property wanted two horses; he has three children and a wife and wanted two horses and not to start an Arabian horse farm; he wanted to build a house for his family and have some kind of recreation for them; that happens to be the hobby he likes; and he cannot understand why the homeowners are against it. He stated he would like to rebut anything they have to say tonight before going back to work tomorrow for Dade County.

Mr. Enos advised he reviewed the minutes, and the vote was 6 to 2.

Walt Neuhauser, 5450 Lake Washington Road, Melbourne, advised he has a view graph to show how the lots are laid out and where some of the lots of people who will be speaking are located; and he has hard copies for the Board to look at. He stated his concern is that the zoning change allows horses which is not compatible or consistent with the houses around the immediate area; RR-1 allows a smaller house than SEU zoning allows; but his primary concern is the horses and the proximity of the horses. He stated the size of the three lots to the south of the property is such that the houses are pretty close to the property line in the back; and the shape and size of the property in question is such that the horses will be very close to the property line. He stated if the change passes, there is nothing that does not set up the situation where he can sit on his pool deck and be 25 to 30 feet away from the horses; and there is nothing that would prohibit that. He noted there are horses in the area; the ones in the immediate area are on pastures and large lots; he does not have anything against horses in pastures; but the lot behind his lot with poor soil and small size, raises the probability of bare dirt and mud and horse pens more than pastures. He stated that can be seen by anyone driving up Country Road and on Turtle Mound and Harlock where pens look like that. Mr. Neuhauser advised in the spring time the evening breeze will drift from the horse pen across his patio into the house; and he is concerned about that. He stated it was said everyone is on City water, but he is on a well; and during the last rain storm, there was a definite flow of water off the back end of that property across his lot to the drainage ditch. He stated when he bought the land it was SEU, and he anticipated his backyard would be somebody else's backyard and not a barnyard some day; and requested the Board deny the change to preserve what he thought he was buying and the nature of the area.

Kenneth Edison, 2525 McGraw Avenue, Melbourne, advised he owns Parcel 513; when he bought it three years ago, he bought SEU; that is what he wanted; and if he wanted to buy in ranch use, he would have bought in ranch areas. He stated he plans to stay there a long time and would like to keep it estate use and not ranch; there are 200 properties within a square mile of this property and they are all SEU; there are no RR-1 zones; and people who have horses on small parcels are probably in violation of the Code. He stated the horses that are out there are on 10 and 20-acre parcels; and the Arabian horses are on ten acres with pastures, which is fine. He stated the person buying the property will not lose anything by not getting it rezoned; he made an investment when he bought his property and is stuck there; there is a five-acre minimum for one horse in SEU; so the people who have horses in SEU have five acres or more and not 2.8 acres.

Chet Neeley, 2575 McGraw Avenue, Melbourne, advised he lives about 400 feet north of the property; he bought his property because it was zoned SEU; he knew what was the uses were around it; and regardless of the intent of the present buyer, the zoning laws allow four horses per acre in RR-1. He stated should it be approved, that would mean there could be 11 horses on that land which would be atrocious. He stated dwelling requirements for RR-1 is 1,200 square feet versus SEU of 2,000 square feet; in order to change zoning, there must be a fundamental change in the property around it; so he recommends the Board deny it.

Mr. Neil advised most of the roads in the area have horse names; the zoning change is not that big; Lot 503 has a sign on it to sell it in a similar fashion as his lot; and he cannot see a horse within 30 feet of a neighbor when the smallest lot is 210 square feet. He stated there are three lots that have horses; the first house was there when he bought his property; he sold the Thompsons their house; and the third house was a Harris Executive's home. He stated the whole area west of I-95, which was Eau Gallie and is now West Melbourne, was for ranch-type settings for people who wanted to get away from the City and be able to ride horses or motorcycles, etc.; and if it is changing to be more city, he does not have a problem restricting the property to one horse per acre or to two horses maximum, and to a 2,000 square-foot home or better, because he does not want to affect property values in the area since he hopes to retire in the same neighborhood.

Commissioner Cook advised the area is zoned SEU; RR-1 would be incompatible with the area; it has a substantial difference in square footage for a home; and changing it could allow multiple horses although they are willing to specify two. He stated the bigger issue is that people bought in there for SEU; they researched the area and looked for SEU zoned property; so there is a compelling reason to deny it as recommended by the P&Z Board.

Motion by Commissioner Cook, seconded by Commissioner O'Brien, to deny Item A15 as recommended by the P&Z Board.

Chairman Higgs inquired if the parcels to the east are all SEU; with Mr. Enos responding the parcel on the west side of Clydesdale for about 1/4 mile is zoned SEU, and on the east side of Clydesdale it is EU for less than 1/4 mile, then it goes to RR-1. Chairman Higgs inquired if properties abutting the subject property are all SEU; with Mr. Enos responding yes. Chairman Higgs called for a vote on the motion. Motion carried and ordered; Commissioner Ellis voted nay.

Item A16. James S. Theriac, III, Trustee's request for CUP for bed and breakfast in RU-2-10(6) zoning classification on 1.26? acres located on the west end of Angler Drive, west of Lake Poinsett Road, which was approved by the P&Z Board.

Motion by Commissioner Cook, seconded by Commissioner O'Brien, to approve Item A16 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item A17. Gomer Mitchell's request for CUP for boat sales and service in BU-1 zoning classification on .49 acre located on the east side of U.S. 1, north of Otter Creek Road, which was approved by the P&Z Board.

Motion by Commissioner Cook, seconded by Commissioner O'Brien, to approve Item A17 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item A18. Space Coast Investments' request for change from BU-1 with BCP to RU-2-10 and removal of the BCP on 1.948 acres located on the north side of Wallace Avenue, west of SR A1A, which was approved by the P&Z Board.

Motion by Commissioner Ellis, seconded by Commissioner Cook, to approve Item A18 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Items Tabled from P&Z Board Meeting of 7/3/95 and BCC Meeting of 7/31/95

Item A19. Mt. Carmel Baptist Church, Inc.'s request for CUP for security trailer in AU zoning classification on 10.12 acres located on the north side of Lake Drive, west of Gray Road, and on the southwest side of Gray Road, north of Lake Drive, which was approved by the P&Z Board for one year with one administrative renewal.

John Thomas, 603 S. Kentucky Avenue, Cocoa, requested a five year approval instead of the one year approval recommended by the P&Z Board. He stated they want to develop the site, put a sanctuary there; and it will take a little time to do the necessary things required to build the sanctuary. He stated they have passed the St. Johns River Water Management District at this time, but it will take time to do the other things they need to do. He stated the Board should have received a letter from them concerning this issue.

Commissioner Ellis stated he does not have a problem extending the time rather than having them come in every year and paying the fees.

Commissioner Cook stated his concern is that it has not been the policy of the Board to extend for that period of time; the recommendation is for two years; and at that time the Board could look at how far the sanctuary has progressed. Commissioner Ellis stated a few have been extended for longer than two years; so the Board has not held everybody to one and one. Chairman Higgs stated the general policy has been one year with administrative renewals as a possibility.

Commissioner Scarborough stated when dealing with an individual it may be important to hold their feet to the fire, but dealing with a church there are complexities involved with asking for money, etc.; so he does not have a problem with five years.

Commissioner Cook stated he does not disagree, but the area is well traveled, and for the next five years they will see a trailer sitting off Lake Drive. Commissioner Scarborough stated it will lead to development of the church which they probably would not be able to accomplish in less than five years; and as soon as it is finished, the trailer will be removed. Commissioner Cook stated the residents in the area will spend the next five years looking at a trailer. Commissioner Scarborough stated if it is approved for two years and they are part way through the construction, would the Board say no when they come back for an extension, he thinks not. Commissioner Cook stated the sanctuary should be done by then, and the Board would have a general idea when it will be completed; and inquired if at the end of five years it is not finished, how long will the people who live out there have to see the trailer. He stated five years has not been the policy of the Board even for existing trailers; Lake Drive is an active road; and he is sympathetic with the church and understand the need to have a security trailer there, but his concern is the five years that it will be sitting there.

Chairman Higgs inquired, what has been the established pattern on other requests; with Mr. Enos responding typically the Board approves the first security trailer for as much as one year with five administrative renewals, and further requests on the same parcels are cut back; and one year with one renewal is not unusual for re-applications. Chairman Higgs inquired if the Board approved it for one year with five administrative renewals, would they come to the staff for renewals and what would that cost; with Mr. Enos responding the renewals go to the Code Enforcement Division which takes a look at the property and determines whether or not there has been substantial change that would warrant the renewals; and he does not know what the cost is for that. He stated it is administrative until the period expires, then they have to come back to the Board.

Commissioner O'Brien advised he is not one to turn down a church; he is familiar with the area, and the security trailer is needed; he hopes they get their funding to get the church up because a lot of people need the church; so he will move to give them five years.

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to overrule the P&Z Board and approve Item A19 for five years.

Mr. Enos inquired if that is for one year with four administrative renewals; with Commissioner O'Brien responding no, three years and two administrative renewals so they do not have to come back and pay a fee every year. Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to amend the motion to approve Item A19 for three years with two administrative renewals.

Chairman Higgs inquired if the Code is set up for that; with Mr. Enos stating the Code is not set up that way. Chairman Higgs inquired what does the law say; with Mr. Enos responding one year with as many as five annual renewals to be approved administratively. Chairman Higgs stated the flexibility to go to three is not in the Code at this time.

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to amend the motion to approve Item A19 for one year with four administrative renewals. Motion carried and ordered; Commissioner Cook voted nay.

Commissioner Scarborough stated there was discussion before the Board about security trailers the Board did not want coming back; the schools said they need security trailers there all the time; the Board does not regulate school property, and they all have security trailers; the public parks have security trailers; and there are places where the Board should admit security trailers as a given. He suggested the Board amend the Code and make it so it can approve security trailers from henceforth until there is a change in the property. Mr. Enos stated it has been discussed by the Local Planning Agency and Board several times; and the staff is bringing a proposed amendment to the Board on October 5 and 29, 1995.

Commissioner Cook stated the Board needs to look at standards for security trailers; and he does not want them to be oppressive, but if they become a permanent structure in a neighborhood, even at a school or whatever, it is something they have to live with daily. He stated things change, and he has concerns with blanket approvals forever. Commissioner Scarborough stated the Board could set aesthetic parameters; most of the trailers at schools are set behind the schools; he has not heard objections from neighborhoods where there are security trailers; and if anything they are glad because there is a campus on the weekend that could have vandalism which could spread to the neighborhood.

Commissioner O'Brien inquired what is the condition of the trailer; with Mr. Thomas responding it is in good condition.

Item A20. Glenn and Betty Carter's request for change from GU and SR to AU on 1.90 acres located on the west side of Simon Road, south of U.S. 192, which was approved by the P&Z Board.

Motion by Commissioner Ellis, seconded by Commissioner Cook, to approve Item A20 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item A21. Space Coast Credit Union's request for CUP for additional building height in BU-1 zoning classification on 7.385? acres located on the southwest corner of Wickham Road and Baytree Drive, which was approved by the P&Z Board, subject to a written agreement with Baytree Homeowners Association limiting height to 54 feet, submitted prior to the August 28, 1995 Board meeting.

Attorney John Kabboord, Jr., representing the applicant, advised they have reached an agreement and are here with support; he was charged to do what is necessary to be received by the public; the Credit Union is very conscious about how it is viewed; it is putting in a nice building there; and they reached an agreement with Andy Fredericks, Attorney representing the homeowners. He stated he executed the Agreement as Trustee for the Credit Union, and Mr. Fredericks has been unable to get the Association to sign it, but has approved the content, and will substantiate that.

Commissioner Cook requested the Agreement be given to the County Attorney.

Attorney Andrew Fredericks, 410 Berwick Way, Melbourne, representing Baytree Community Association, advised he has a draft of the agreement; it is not yet ready for signature due to very minor details; so he would like to request the Board continue that condition but allow them to move forward, either by a condition of the building permit or certificate of occupancy upon finalization of the agreement. He noted it is not signed by the Association at this point.

Commissioner Cook inquired if the 54 feet height limitation could be stipulated in the approval; with County Attorney Scott Knox responding it can be approved with the condition that the building permit not be issued until the agreement is signed by both parties. Mr. Fredericks stated he suspects the agreement will be signed in a matter of days; and he does not want to slow them down because they have been cooperative.

Mr. Kabboord stated that comes to him with a little bit of surprise; originally the retention area for the Credit Union building was situated so it was adjacent to PUD property; that was the reason they needed the CUP to construct; and if they moved the retention pond off that barrier, they would not need the CUP. He stated the Credit Union elected to move the retention pond off; however, instead of breaking off negotiations with the Homeowners Association, the Credit Union agreed to put up a wall in accordance with the standards used in Viera, and limit access to a piece of property, and voluntarily stipulated to a vegetative buffer. He stated they have done this in an effort of good faith; and all they want is to know they can go forward. He stated he has the agreement which was delivered to Mr. Fredericks' Office on Friday; he talked to Mr. Fredericks on Friday, today, and during this meeting; and this is the first time he has heard any objection to the agreement.

Commissioner Cook advised the Credit Union could have re-configured the property and gone up to 60 feet, but chose to do this agreement, so he will move to approve the item with the 54 feet height stipulation and that the agreement be signed by the Homeowners Association prior to the issuance of a building permit. Mr. Kabboord advised they have huge engineering costs and are predicating what they are doing on the agreement being signed; and inquired what will happen if they do not sign it; with Commissioner Cook responding Mr. Fredericks has strongly indicated there is not going to be a problem and it will be signed in the next day or two. Mr. Kabboord stated he has a ten million dollar project, and his option may be to withdraw the request for a CUP and not have anything to do with the agreement.

Commissioner Cook asked Mr. Fredericks if he sees a problem with the agreement; with Mr. Fredericks responding no, but in all fairness, due to both of their schedules it got pushed back; he got it on Friday and looked at it briefly, but had not had a chance to review it with any of the people he represents; and there are minor problems such as the name of the organization which is Baytree Community Association and not Baytree Homeowners Association. Mr. Kabboord inquired if Mr. Fredericks told him he would be here supporting it even if the agreement was not signed; with Mr. Fredericks responding that is what he is doing.

Motion by Commissioner Cook, seconded by Commissioner Scarborough, to approve Item A21 as recommended by the P&Z Board, based on the agreement and 54-foot height restriction.

Mr. Fredericks stated the Credit Union and Mr. Kabboord has worked very well with them; he cannot be here in the same position Mr. Kabboord is in and represent that it is done without having the opportunity to at least discuss it with his client; he has a great deal of control over this particular client, but it is a client that he is not a principal of and needs to sit down with them and go over it; but he did tell Mr. Kabboord he would recommend they sign the agreement; however, he cannot pledge it will be done because it is not done at this time.

Commissioner Cook inquired if Mr. Kabboord has a problem with the motion; with Mr. Kabboord responding no.

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

Item A22. Joseph Nelan's request for change from GU to RRMH-1 on 1.23 acres located on the south side of Eureka Avenue, east of Lindsay Way, which was approved by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Item A22 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item A23. 4 G's of Brevard County, Inc.'s request for change from GU to RRMH-1 on 1 acre located on the north side of Terri Lee Avenue, east of Satellite Boulevard, which was tabled to the P&Z Board meeting of September 5, 1995, with no reprocessing fee required.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to table Item A23 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item A24. 4 G's of Brevard County, Inc.'s request for change from GU to RRMH-1 on 1 acre located on the south side of Harley Avenue, east of Satellite Boulevard, which was approved by the P&Z Board.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Item A24 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Section B - Comprehensive Plan and Zoning Items

Item B1. James W. Peeples, III, Trustee's requests for expansion of Mixed Use District and change from BU-1-A to BU-1 on 2 acres located on the northwest corner of Arabella Lane and Fay Boulevard, which was approved by the P&Z Board.

Mr. Enos advised the applicant has withdrawn the petition.

The Board accepted withdrawal of Item B1.

Item B2. Melbourne Sand & Supply Co., Inc.'s request for Small Scale Plan Amendment to heavy/light industrial by Ordinance, change from GU, IU, IU-1 with BCP, and BU-2 to all IU-1, and CUP for metal salvage yard and junk yard and removal of BCP on 23.85 acres located at the northern terminus of Waelti Drive. The P&Z Board approved the majority of the request to IU-1 w/CUP for metal salvage yard and junk yard, except the southerly portion of Government Lot 3 which is zoned BU-2 and IU; denied the southerly portion to be consistent with the Small Scale Plan Amendment denial; and approved voluntary BDP on a specified portion of approximately 15 acres of the 23 acres of the rezoning request excluding Government Lot 3.

Carl Cortner, 1114 Seminole Drive, Indian Harbour Beach, representing Melbourne Sand, Jackie's Auto Sale, and Mr. and Mrs. Elliott, advised he has 13 pages of minutes of discussion at the P&Z meeting, so they have been through this, but he understands there are quite a few people here to talk about it. He explained three maps; and stated there are a lot of different actions in this request, so it gets a little complicated. He advised under the designated zoning of IU-1 on Parcel 7956, there is a BCP; the request states the BCP is to be removed; however, that is not true. He stated the BCP was put on at the time the IU-1 was zoned five or six years ago; it relates to property surrounding the IU-1 by limiting the uses of the GU property and leaving it in its natural state; so the intention of the owners is not to vacate that BCP. Chairman Higgs inquired if that affects the advertisement; with Mr. Enos responding all Mr. Cortner needs to do is withdraw the request to vacate the BCP if he wishes. Mr. Cortner advised the intent is not to vacate that barrier between IU-1 and the Suntree property. He stated the bottom half of Parcel 1714 is IU, and the property zoned BU-2 is now and has been for 25 to 30 years an auto salvage yard; this request was to try and bring the use of the property into compliance with the Comprehensive Plan; and the P&Z Board recommended changing the Comprehensive Plan with the exception of Government Lot 3 which is BU-2 and part of that which is IU-1. He stated he talked to the property owners and they are in agreement with the recommendations of the Local Planning Agency and P&Z Board not to include the BU-2 portion; so the request is amended to get the Comprehensive Plan for the entire area with the exception of a portion of Government Lot 3. He stated there is a small portion that is being used now as an auto salvage that the Comprehensive Plan does not encompass; that property is north of Government Lot 3; and the Comprehensive Plan Amendment would change that property. Commissioner Cook inquired if the current salvage yard is in the IU portion; with Mr. Cortner responding it is in IU on Parcel 1714 plus in the BU-2. He stated they are asking for a composite change of zoning to all IU-1; some portions are already IU-1, and some are IU and BU-2 which are being used as an auto salvage yard. He stated they have an occupational license and have been operating for 25 to 30 years; and it is not that they have not been in compliance, it is that they are trying to get everything to match so they will be in compliance. He stated they will amend the application for zoning change to eliminate Government Lot 3 and leave that as BU-2 and everything else should be IU-1 with the CUP. Chairman Higgs inquired if that is what exists on the property; with Mr. Cortner responding part of Government Lot 3 and the IU portion of Parcel 1714 is the salvage yard; north of the square that is 200'x200' is an existing IU-1 that is not the salvage yard; however, the owners of the salvage yard are planning to buy the property from Melbourne Sand and expand their business into the IU-1. He stated the zoning on the property they are using now does not conform to what they have been doing for 30 years; and they are trying to get it all in compliance, but at the same time be good neighbors. He stated the owners offered a binding development plan for the green area limiting some of the uses in IU-1; they submitted the BDP to the Zoning Board and Mr. Enos deleting 15 of the uses they could have without a CUP in IU-1; and they would go forward with the BDP limiting the uses in IU-1, less and except the portion lying in Government Lot 3. Mr. Cortner advised the history of the request is that the owners bought the property four years ago as a salvage yard; it had a tin roof screening wall around it; being good neighbors, they built a concrete wall around the property 8 feet high and did an excellent job; however, the wall does not comply, and they had a Code Enforcement infraction against them. He stated if they can get the zoning clarified, they will go back to the Suntree people and the Board of Adjustment to get the wall into compliance; and what they are asking at this point is to approve the P&Z Board's recommendation to change the zoning to match what they have, with the exception of removing the BCP on the IU-1 property because it creates a buffer for the Suntree people.

Chairman Higgs advised she received a call yesterday from Mr. Boylan who objects to the Comprehensive Plan amendment and zoning changes.

Ed Sears, 912 Ridge Lake Drive, Melbourne, representing Suntree Master Homeowners Association, advised from serving on the Board of Adjustment for the past six years, he knew there were certain pockets in the County where there were problems with the Comprehensive Land Use Plan; tonight they have run into one of those pockets with this property; and presented copies of maps to the Board. He stated the subject property adjoins Suntree; Waelti and Melbourne Sand were there before Suntree; and explained the maps of the subject property and Suntree property. He stated to the south is Indian River Isles; the industrial property is sitting in the middle of residential properties; the IU on Parcel 1714 was rezoned from GU in 1965; and before 1973, IU was the only industrial zoning category the County had. He stated after 1973, when it divided IU into IU and IU-1, the property became nonconforming, but the legal salvage yard was grandfathered in at that time; however, it has expanded into the BU-2 area. Mr. Sears advised the BCP was established in 1987 by the Board which felt it had to put IU-1 zoning in there because of the existing mining operation; the BCP was put in there to restrict the uses; and he is delighted to hear the applicant is willing to withdraw the removal of the BCP. He stated Suntree is opposed to the requests; and presented more petitions to the Board. Commissioner Scarborough inquired if Mr. Sears is the spokesman for Suntree; with Mr. Sears responding yes.

Clay Bernichon, 6345 Anchor Lane, Rockledge, advised he is opposed to a junk yard and salvage yard being in a residential area for many reasons, but the principal reason is that several years ago they had a flood; it was very severe and water poured down the hill and directly into the Indian River; and pollutants that exist in a junk yard are quite severe. He stated the River deserves better attention than that; and inquired if there has been an environmental impact study on the presence of the pollutants. He noted it has been there for a long time as a sand yard and mining operation, but not as a junk yard or metal processing; and they in Indian River Isles object to the rezoning.

Annette Cimino, 347 Cypress Point Drive, Melbourne, representing Lake Point Association, advised she and her neighbors were distressed to learn the area behind their homes may be rezoned to heavy industry; at present their residential community has to deal with noise from the trains and trucks that travel up and down Waelti Drive; and while they are not naive enough to think they can control the present noise, they are here to ask the Board's help in stopping further disturbances. She stated the petitioners have definite plans for their businesses that require the change in zoning; the plans could have disastrous effects on their neighborhoods, maybe not now, but in the future; and their many concerns include the negative impact the plants could have on the environment as well as their property values. Ms. Cimino stated since the auto salvage yard has already expanded without approval, it is obvious they have no regard for rules and regulations, let alone the effect their plants could have on the neighborhood; therefore, in order to preserve the quality of their neighborhood, they ask that the Board deny the requested changes.

Mark Minor, 6285 Bertram Drive, Rockledge, representing 67 homeowners in Indian River Isles and some homeowners in North Indian River Isles presented a petition to the Chairman and urged the Board to deny the P&Z Board's recommendation for the scrap metal and salvage yard. He stated a scrap metal salvage yard will have a negative impact on their property values; they worked for many years to buy the premium lots and build their homes on the river; they pay a lot of taxes; and they did not do that to be directly across a scrap metal and salvage yard. He stated it will have a negative impact on the aesthetics of their neighborhood; and presented pictures to the Board. He stated they have a direct view of the proposed area and existing dilapidated building on it; any building of a scrap metal junk yard will be in direct view of their homes; and he will see the smoke and large buildings they will build and all the junk cars from his front door. Mr. Minor advised there is a clear area across from their homes cleared by Florida Memorial Gardens; they have taken down every tree and shrub to expand their facility; and that gives them a clear view of the proposed rezoning area. He stated they have no buffer, no trees, and nothing to stop any type of noise that will be generated by a scrap metal salvage and junk yard; and since they have removed all the vegetation, there is noise pollution from the trains. He stated they knew the train tracks were there when they built their house and moved in, but they did not bargain for a scrap metal and salvage yard. Mr. Minor advised another point is the environmental impact; there is a lake directly across South Indian River Isles on the west side of U.S. 1; with large amounts of rain the lake fills up and drains directly into the Indian River; and that will have a negative impact on the environment. He stated there are manatees, dolphins, water fowl and fish; the River is in bad condition now; and it does not need motor oil, gas, and other pollutants draining into it from a scrap metal salvage junk yard. He noted although Commissioners come and go, their decisions last forever; and this decision will affect everyone who lives in Indian River Isles. He stated if it is approved, the negative impacts could be devastating not only to the homeowners, but to the environment and surrounding areas as well; and inquired if the Commissioners are truly representatives of the people. He stated if they are, the people are asking them to deny the rezoning.

Thad Altman, 361 Kilmarnock Place, Melbourne, representing Indian River Isles South, advised the petition appears to be complex with all the different verbiage and zoning classifications, but looking at the land use as it exists makes the rezoning request simple. He stated there is IU-1 zoning along the railroad tracks; IU zoning is very restrictive and has a buffer requirement; it is an excellent land use category, because most of the activity is required to be done indoors; heavy industrial uses are not allowed; and it has height restrictions and prohibits storing of vehicles. He stated it is high-tech light industrial use that is compatible; Wickham Road has that type of IU zoning; and it is a precedent set for the Suntree area. Mr. Altman advised he took pictures of what is there in violation of the present IU zoning classification that would be brought into compliance if the entire area is zonedIU-1; and there are a phased-out sand operation, a tower which is above the landscape, a building, and a large monolith of heavy industrial equipment which can be seen from the backyards of the homes. He stated land has been completely cleared to expand Florida Memorial Gardens Cemetery, so they have no visual buffer; and explained the pictures of structures in the area. He noted the sand ridge dune that had a beautiful scrub is being destroyed; the industrial area is on top of a hill so a six or eight-foot wall is meaningless; and when they think of metal salvage, they think of what takes place at Yorke Doliner with conveyor belts, cranes, crushing, grinding, trucking, etc. He stated it is an intense use on top of the sand ridge with no visual buffer; it is completely incompatible even with the cemetery to have a loud, noisy, grinding, smelly, and dusty operation a few feet from burial plots; and it does not make any sense. Mr. Altman stated a lot of it was built without adequate approval; there have been violations in water quality and zoning; but that should not give a reason to obtain zoning approval to legalize what they have done that is not legal. He stated the residents of Indian River Isles plead with the Board to consider they worked their whole lives for their homes, and to preserve their property rights and quality of life by keeping the present zoning and not allowing expansion of IU-1 into the corridor along the railroad tracks.

Cindy King, 330 Myrtlewood Road, Melbourne, advised many times she is awakened from a deep sleep at four in the morning with loud rumbling, windows rattling, and floor shaking by a convoy of trucks barrelling down the road behind her home; it goes on all day until 11:30 p.m. or midnight; there are better places for that type of business; and it is not appropriate, not conducive, and not compatible with their quiet residential community. She stated the trucks are very disturbing, and if allowed to continue, will depreciate the value of their homes and degrade the value of their lives; there is a child care facility on that same road; and it is not conducive to children playing because it presents a hazard to their safety. Ms. King stated she is against the proposed rezoning, and so are the residents in Lake Point; and presented petitions from Lake Point to the Board.

Carl Cortner, 1114 Seminole Drive, Indian Harbour Beach, advised there is a distinct clarification between the request and what they wanted; there is no classification for auto salvage, so they had to apply for metal salvage; they do not plan to have a Yorke Doliner operation; and the Board may need to clarify its regulations to provide for auto salvage. He stated the applicant is interested in having an auto salvage yard which they are doing there now; he wants to expand into the IU-1 zoning classification; and he agrees that Florida Memorial cleared the land for the cemetery between U.S. 1 and the railroad tracks, but they always were able to see the elevators and machinery that were placed there a number of years ago for the mining operation. Mr. Cortner advised the mining operation is changing to auto salvage; the buildings will be torn down and scrapped so they will not be seen; auto salvage normally takes a building with 12 to 16-foot height and not 40 or 50 feet; and what is there now will go away. He stated he agrees with the lady who talked about the trucks, but Waelti Drive has historically been a mining operation; the noise is from trucks coming from the mining operation; that operation will change to auto salvage; and the trucks will go away except for one or two transport trucks moving autos in and out of the area. He stated the lake on U.S. 1 has been claimed by St. Johns River Water Management District as a water quality lake; Hidden Glen, Suntree, and the total area uses the lake for final water quality, and it works; Waelti Canal which goes to Jackie's Auto Sales was given to the County by the Waelti family; and it is the drainage system for the whole area. Mr. Cortner advised he asked Mr. Elliott about environmental issues with an auto salvage yard and was told it is one of the most restrictive environmental operations; they are controlled when draining oil, anti-freeze, gasoline, etc.; and have monitoring wells for environmental issues; and that should not be an issue for the rezoning request. He stated they have always been in compliance and have not done anything wrong; they have been operating a salvage yard for 30 years; the area has grown up around the salvage yard, and the regulations have changed; and the Comprehensive Plan was adopted in 1988, so the IU should have been changed to IU-1 by the County in 1988 because it was operating that way. He noted they have an occupational license to operate an auto salvage yard; they are asking that the area zoned IU be changed to IU-1 based on the motion from the P&Z Board which is the way it has been used for a number of years; so they are not changing the complexion of the property or anything that has not been out there; they are only trying to bring it into a proper classification for the existing business.

Commissioner Cook advised there were people who called his office regarding this item; Dennis and Mary Foster are against it; Linda and Don Adams are against it; Mrs. Moninori is against; and Clay Burnshaw , Mr. Boylan, Charles McClain, Ron Dozier, and James Blackner are against the change. He stated he is familiar with the area, and went out there again today and drove down Waelti Drive to U.S. 1; the complexion of the area has changed over a period of years; currently there are a number of PUD's abutting the property; and from U.S. 1 there is now a clear view of the property. He stated the request for change would not be compatible with the area as it is today; and he does not want to see any expansion of the IU-1 zoning classification.

Motion by Commissioner Cook, seconded by Commissioner O'Brien, to overrule the P&Z Board and deny Item B2.

Chairman Higgs inquired what is staff's recommendation; with Zoning Official Rick Enos responding staff is recommending approval of the Comprehensive Plan amendment for that portion of Government Lot 3 that is zoned IU; it is the north triangle of the pink area on Map 1; and the purpose for that recommendation is because part of the property is already zoned IU, and it would bring the current zoning and Comprehensive Plan together and make it consistent. He stated staff's recommendation on the zoning was to deny the entire request.

Chairman Higgs inquired if the motion is to deny the entire request; with Commissioner Cook responding yes. Chairman Higgs called for a vote on the motion. Motion carried and ordered unanimously.

The meeting recessed at 9:07 p.m. and reconvened at 9:22 p.m.

Item B3. Brevard County Board of County Commissioners Future Land Use Map Amendments for 954 acres in part of Sections 22, 27 and 34, Township 27, Range 36, from Residential, Mixed Use District, Public Facilities, Recreation, Heavy/Light Industrial to Mixed Use Heavy/Light Industrial, PIP, and Conservation, located north and south of Eau Gallie Boulevard, and west of I-95, which was approved by the P&Z Board to rezone from GU and AU to EA for Parcel 500 in Section 22, Township 27, Range 36, Parcels 250, 252, west half of 253, 254, 255, 500, and 750, in Section 27, Township 27, Range 36; and Parcel 250 in Section 34, Township 27, Range 36; from GU and AU and BU-2 to IU for Parcels 502, 505, 506, 507, 751, 752, 753, 754, 756, 759, and 761 in Section 22, Township 27, Range 36, and Parcels, 1, 251, east half of 253, and 256 in Section 27, Township 27, Range 36, from GU to PIP on Parcel 3 in Section 27, Township 27, Range 36; and from GML to BU-1 with CUP for treatment and recovery facility in Section 22, Township 27, Range 36.

Chuck Griffin, 2089 Seawind Court, Indialantic, representing the Conners, Doug Peeple, Todd Wellons, and Doug Conners, advised they are all land owners in the area and so far this item has been passed by P&Z and sent to the State and approved; it is back and was approved by P&Z again; and requested the Board approve it as written.

Commissioner Cook advised the item includes properties in Districts 4 and 5; and inquired if there was any opposition to it; with Chairman Higgs responding she did not receive any objections.

Motion by Commissioner Ellis, seconded by Commissioner Cook, to approve Item B3 as recommended by the P&Z Board.

Chairman Higgs inquired if the motion is to approve all the changes; with Commissioner Ellis responding yes. Chairman Higgs advised she voted against two of the parcels previously and will vote against it again. Commissioner Scarborough stated staff recommended against rezoning Parcels 505, 507 and 752 because they are wetlands. Chairman Higgs advised the Comprehensive Plan does not permit industrial development in wetlands.

Mr. Griffin advised he has been working with the St. Johns River Water Management District and BSE Engineering, and has the application that has been before the District, which sent things back and had studies; and they have the same opportunity the County took when it increased the landfill which is to mitigate land. He stated it can be taken out of an environmental issue by mitigating; so by denying the zoning on his and Mr. Conners' parcels the Board is going against its own belief because it did the same on the County landfill when it increased an industrial area into an area that was not supposed to be, and mitigated the property. He stated as property owners, they have the right to do the same thing. Commissioner Cook asked Mr. Griffin to repeat his statement; with Mr. Griffin responding the County had to increase its landfill; it had to buy 622 acres from the Platts to mitigate; as private property owners they should have the same right if the St. Johns District says they can fill in the piece of property if they mitigate a certain ratio; and it should not be held against those parcels. He stated they have not gotten to that point yet; they have a site plan into the District requesting approval; and the District has not completed the permitting process, but has not denied it, and is working with BSE Engineering. He stated there may be some small areas they may want for retention ponds, but there is about 60% uplands on the parcels.

Commissioner Ellis stated the property in question is behind a dike which has been there for over 30 years. Commissioner Cook inquired if all property owners were notified and no comments were received; with Mr. Konefal responding that is correct. Commissioner Cook inquired if staff had a different recommendation; with Mr. Konefal responding in the Comprehensive Planning Report and Zoning Report, staff is recommending denial on Parcels 505, 507, and 752 because those parcels are considered wetlands. Chairman Higgs inquired where are those parcels located; with Mr. Konefal responding the map in the B3 section identifies all the parcels; and 505, 507 and 572 are on the south side of Eau Gallie Boulevard.

Commissioner Ellis inquired if the property is zoned IU; with Mr. Konefal responding Parcel 752 is BU-2, and Parcels 505 and 507 are GU at this time. Commissioner Ellis inquired if 504 is IU; with Mr. Konefal responding yes. Commissioner Ellis stated staff's recommendation the last time was to put residential next to industrial; with Mr. Konefal responding the original staff recommendation was to leave the Comprehensive Plan alone and recommended no change. Commissioner Ellis stated would that leave it residential; with Mr. Konefal responding that is correct. Commissioner Ellis stated the Board has been through several cases tonight about residential located next to industrial use. He stated he can remember when Carland and Melbourne Sand were the only operations out there; and right now there is a chance to make it all industrial or another Board will have to hear complaints about industrial uses from people who develop residential out there. Commissioner Cook stated they cannot build in the wetlands, and there has to be areas for those types of endeavors. Commissioner Ellis stated there are no neighbors.

Chairman Higgs called for a vote on the motion. Motion carried and ordered; Commissioners O'Brien, Cook and Ellis voted aye; and Commissioners Scarborough and Higgs voted nay.

Item B4. Brevard County Board of County Commissioners Future Land Use Map amendments for part of Section 22, Township 25, Range 36 from Heavy and Light Industrial to Mixed Use District; rezoning Parcel 267 of Section 22 from IU with CUP to BU-1; and rezoning Parcel 269 of Section 22 from PBP with BCP to BU-1-A, located to the northeast of the intersection of Barnes Boulevard and Murrell Road, which was approved by the P&Z Board.

Mike Konefal advised staff received no written comments, but landowners phoned and supported the amendment. He stated this was based on a rezoning action that started six or seven months ago by a property owner for an insurance office. Commissioner Cook inquired if the rezoning will bring it into compliance for the strip of land on Murrell; with Mr. Konefal responding it will change to MUD and all the 11 or 12 lots will be consistent with that.

Motion by Commissioner Cook, seconded by Commissioner O'Brien, to approve Comprehensive Plan Amendment for Item B4 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Motion by Commissioner Cook, seconded by Commissioner O'Brien, to approve the rezoning for Item B4 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Chairman Higgs recommended the Board clarify its actions of approving the Comprehensive Plan amendment and rezoning for Item B3.

Motion by Commissioner Ellis, seconded by Commissioner Cook, to approve rezoning from GU and AU to EA for Parcel 500 in Section 22, Parcels 250, 252, west half of 253, 254, 255, 500, 750 in Section 27, and Parcel 250 in Section 34. Motion carried and ordered unanimously.

Motion by Commissioner Cook, seconded by Commissioner O'Brien, to approve rezoning from GU, AU and BU-2 to IU for Parcels 502, 505, 506, 507, 751, 752, 753, 754, 756, 759, 761, in Section 22 and Parcels 1, 251, east half of 253, and 256 in Section 27; from GU to PIP on Parcel 3 in Section 27; and from GML to BU-1 with CUP for treatment and recovery facility in Section 22, as recommended by the P&Z Board. Motion carried and ordered; Commissioners O'Brien, Cook and Ellis voted aye; and Commissioners Scarborough and Higgs voted nay.

Item B5. Brevard County Board of County Commissioners Future Land Use Map and Element Amendments for part of Sections 12 and 13, Township 24, Range 35 and part of Sections 7 and 18, Township 24, Range 36, from PIP to Heavy and Light Industrial and Public Facilities with amendments to Policies 5.2 and 5.3; rezoning Parcels 250 and 251 from GU to IU; and rezoning Parcel 1 north of SR 528 from GU to IU, located on the south side of Grissom Parkway, west of Industry Road, which was approved by the P&Z Board.

B. B. Nelson, 3535 N. U.S. 1, Cocoa, advised this item will assist the landowners in getting their lands to conform to the County requirements since 1988; it is what the Board instructed staff to do; and it is finally back from the P&Z and Local Planning Agency. He stated the property is south of Grissom, north of the Beeline, west of Rinker, and south of Cidco Park; and they want to have their existing zoning conform to the Comprehensive Plan, so he would appreciate approval.

Commissioner Scarborough advised it was before the Board a couple of times; at the same time it amends Policies 5.2 and 5.3; and inquired if he has to make a motion to amend the policies and Plan amendment simultaneously, even though the policies are stand alone and can apply anywhere in the County. He inquired if it is conceivable there could be objections to one and not the other; with Mr. Konefal responding they are stand alone items and were advertised separately. Commissioner Scarborough stated he would like to act on them separately.

Motion by Commissioner Scarborough, seconded by Commissioner Ellis, to approve the Comprehensive Plan amendment from PIP to heavy/light industrial and public facilities for Item B5 as recommended by the P&Z Board. Motion carried and ordered; Commissioner O'Brien voted nay.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to approve rezoning for Item B5 as recommended by the P&Z Board, Parcel 250 and 251 from GU to IU and Parcel 1 from GU to IU. Motion carried and ordered; Commissioner O'Brien voted nay.

Motion by Commissioner Scarborough, seconded by Commissioner Ellis, to approve changes to Policies 5.2 and 5.3 as recommended by the P&Z Board. Motion carried and ordered; Commissioner O'Brien voted nay.

Section C - Comprehensive Plan Items Only (95A Cycle)

Item C4. Traffic Circulation Element Amendments.

Bill McCord, 1340 Ambra Drive, Melbourne, Chairman of Brevard MPO Bicycle and Pedestrian Advisory Committee, advised he sent a letter last week to Chairman Higgs and trusts it was copied to the rest of the Commissioners, stating their position on the proposed Comprehensive Plan changes. He stated Policy 1.1.8 is design standards which may be nice to have in the Plan, but could be included in land development regulations; and if it is the intent of the Board to include those items in the land development regulations, it would be an acceptable thing to do. He stated the policy itself should be kept; it would make it easier to vary the standards; and doing away with it may be opening the Board to some liability if there was an accident. He stated Policy 1.1.10 is the most important to retain as part of the Comprehensive Plan; that deals with general policies and proposals that are not site specific or design specific; and if necessary, the land development regulations can be amended or created to specifically address each policy and the criteria assigned to them. He stated the way some things are worded may not be necessary; Policy 1.1.11 is very general that it would not have much merit to retain; however, it would be better to retain all the policies not only in the Comprehensive Plan but in land development regulations; and they hope the Board will consider that. He stated the Committee would like to review any proposed changes to the land development code or Comprehensive Plan prior to reaching this session. Mr. McCord advised if the changes are not adopted as staff proposed, then staff will propose policies and procedures which the Board may want to include in the land development regulations; the problems with the policies and procedures are that they are so vague they have no enforcement ability; use of specific terms in the directives and policy BCC-23, Subsection 8, "shall be considered" does not have any teeth; and the Board may need to be more specific on some of the items. He stated Subsection 4 reserves the right to the Board to revise the policy; and recommended the Board advertise any public hearings if the policy is changed. He suggested the procedure reference the State's bicycle design standards manual by FDOT; and stated the term "desirable" is difficult to hold anyone to some standard, so more concrete language should be used. He stated they will be glad to review the procedures in depth and get back to the Board if they are given that opportunity; but their main objective is to retain what is in the Code now; and if the Board feels something needs to be changed, they request it be sent to the Committee for review and recommendation.

David White, 134 Copenhaver Avenue N.E., Palm Bay, representing the City of Palm Bay as the Parks and Recreation Director, advised the proposed removal of the bicycle/pedestrian sub-element from the Comprehensive Plan would be a mistake; it is necessary to determine the importance and priority of bicycle/pedestrian facilities in the County's overall transportation plan; and it is essential in obtaining federal grant monies. He stated removing the Goals, Objectives and Policies from the Comprehensive Plan and the FDOT Bicycle Facilities Standards, would be a loss; and recommended the Bicycle/Pedestrian Advisory Committee have the opportunity to review the draft policy and procedure. He stated it will hurt the overall transportation plan; the federal government has taken strong action in this regard by dedicating 10% of the gas tax collected for alternative opportunities for transportation; it is trying to encourage alternative ways to transport people and take automobiles off the road; and that is a wise piece of legislation. He stated moving in the other direction is what is on the table right now; and the Board needs to make every effort it can to reduce the amount of traffic on the roads. Mr. White advised the West Orange Greenway is a very popular item; it amounts to a bikepath; and that is Linda Chapin's flag she is carrying and her priority project. He stated the City of Palm Bay passed two dedicated millages to build sidewalks and bicycle paths; and it will be on the ballot again in November; so they are politically popular items.

Carol Horner, 749 S. Tropical Trail, Merritt Island, advised the bicycle/pedestrian issues are not just local issues; the County should follow state and federal ways of doing things; and urged the Board to retain the bicycle/pedestrian sub-element of the Comprehensive Plan. She stated there is a need for consistent and uniform plans throughout the County for developers, planners, and public works; the Comprehensive Plan allows the County to apply for grants and receive state and federal funds; and that is important. She stated they need to follow the state and local guidelines in regards to safety; and if the Board abolishes the Comprehensive Plan sub-element, it will be open to liabilities. She stated there is a need for guidelines so things are not built substandard in the County; and she hopes the Board will not do away with the Comprehensive Plan sub-element.

Resa Marks, 675 Rosada Street, Satellite Beach, member of the Bicycle/Pedestrian Advisory Committee advised she wants to go on record showing her support for what the other members have said and appreciates the Board consideration in this important matter.

Ginger Twigg, 1086 Gatty Circle, Palm Bay, BPAC member, advised she concurs with what the other members have spoken about, and hopes the Board will allow BPAC to rework this change instead of annihilating the sub-element from the Comprehensive Plan.

Thad Altman, 361 Kilmarnock Place, Melbourne, advised he has more time to do enjoyable things, and one is riding his bicycle; bicycling is one of his joys; and he has a personal involvement with this Element because he is able to see the fruits of the labor by the County. He stated it is a success story that can only be shown in many of the projects that have been built under the Board's stewardship such as gas tax projects in Palm Bay, Wickham Road, and Fay Boulevard. He stated the Policy reflects the policies implemented through the gas tax and other resurfacing jobs; it sets basic general standards that when they construct roadways, they provide for widened shoulders, pedestrian ways, and do things that are very innovative; and in time Brevard County will receive due credit. He stated the Board has a good representative group here at this late hour speaking in favor of it, which is a reflection that people are beginning to see the benefit; the chain is only as strong as the weakest link is true in any bicycle/pedestrian element; and because a lot of the projects are not on line and they have not been able to interconnect many of the improvements, the Board is not seeing the utilization that it will see. He stated if he bikes down Wickham Road and get to Murrell and the bike lane ends, then it is hard to bike in that area; but when those links are connected, then he can bike and a lot more people will bike because it will not be a sidewalk that goes no where; and this policy began that process which is a successful process. He stated there is no one here tonight arguing against the policy, only people who are for it; the policy gives the flexibility to work within it; and Policy 1.1.1 gives the Board criteria where exceptions can be made if a facility would be contrary to public safety, the cost would be disproportionate to the need, or where the available means or factors indicate an absence of future need. He stated the policy has worked; he cannot think of any situation where it has not worked; and it has been a positive. He encouraged the Board to continue the opportunity to make it work and if it runs into problems, then go to the Bicycle Committee and make the due changes.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to deny Item C4, Traffic Circulation Element amendments.

Commissioner O'Brien advised it was stated that the element of the Comprehensive Plan is necessary to receive federal grants; and inquired if that is true; with Mr. Konefal responding there are many state and federal grant applications that have a criteria check list; and one of the criteria is whether it is consistent with the current Comprehensive Plan. Commissioner O'Brien inquired, if it is removed from the Comprehensive Plan, will it is also remove the County from the possibility of receiving federal funds for bicycle paths and sidewalks; with Mr. Konefal responding it would not totally remove itself, but the evaluation would be lower when competing with municipalities which may get a higher evaluation. Commissioner O'Brien inquired if 10% of the gas tax is dedicated to bikepaths and sidewalks; with Mr. Konefal responding yes. Commissioner O'Brien stated he can support the motion.

Commissioner Scarborough stated if the Bicycle Committee wants to look at it and make improvements, that would be fine, as there may be some things they can suggest. Chairman Higgs inquired if the motion includes that direction; with Commissioner Scarborough responding no.

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

Item C1. Staff Response to The Department of Community Affairs Objections, Recommendations, and Comments (ORC) Report. Local Planning Agency recommended approval of the Ordinance.

Commissioner Scarborough advised the Board has entered into stipulations that it is going to do some studies; this says, the County had a 120 hearing and stipulated to do studies; and the Board needs to remind DCA it is doing studies to satisfy them.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to approve C1, and direct staff to let the Florida Department of Community Affairs know what is happening.

Chairman Higgs advised she did not support the stand, and wants them to continue the study, but does not want it stipulated in the 120 hearing.

Commissioner O'Brien inquired if the County is saying the people in Port St. John do not want sewers; with Commissioner Scarborough responding no, the County had an accord with the agency that determined whether Port St. John should have sewers or not, and came to an agreement; to bring the Comprehensive Plan into conformity, they began to do some changes; and one was to change the maps. He stated DCA unilaterally raised some questions; and there was a disagreement; so they went to a 120 hearing and resolved that by agreeing to do some studies. He stated DCA is raising the same issue again; they had come to an accord that the way to proceed is with the environmental study on whether there is seepage of sewage or septage into the Indian River Lagoon and other places, and to what extent; and this says the County is doing a study to satisfy DCA. He stated the County already compromised in the fact that it considered DCA had jurisdiction; he thought the County should have gone to talk to the Governor and Cabinet and remind them the State should only speak with one voice; but he was alone and even the residents of Port St. John said they did not mind having the study, so he gave in.

Chairman Higgs stated she thought they were responding that the Plan was internally consistent, and staff were to provide data it had and not new data.

Planner Mel Scott advised in the 94A Amendment, they proposed to remove Port St. John from the existing and future sewer service area map because there is now a work plan to do some studies; DCA and the County will re-look at it at the 120 hearing which has currently been abated until December 28, 1995; and at that time they will know exactly the scope of the study that is going to take place which hopefully will satisfy some of the data DCA wanted. He stated one of the things DCA objected to in the original amendment is some internal inconsistencies they located within the Comprehensive Plan; and the purpose of this item is to remedy that. He stated they have gone through the Comprehensive Plan and proposed to amend those portions which are inconsistent with the 94A amendment.

Chairman Higgs inquired if this item just says the County will go along with the study; with Mr. Scott responding it does two things, remedy the internal inconsistencies and provide the data but not rehash the issues in the ORC. He stated it says everything is on the table; the County is not going to rehash it; but it is trying to amend and rectify the internal inconsistencies that DCA identified.

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

Item C2. Brevard County Board of County Commissioners Future Land Use Map amendments for Section 29, Township 24, Range 35, from residential to mixed use district; which was approved by the Local Planning Agency.

Commissioner Scarborough advised there was a concern about whether or not the County should keep it as business or take it to residential; there was discussion about access on and off SR 520, but the County does not have the capacity to preclude access on or off SR 520; and it considered whether it should mandate a residential usage out there, and came to the conclusion to go with the Mixed Use District.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Item C2 as recommended by the Local Planning Agency. Motion carried and ordered; Commissioner Higgs voted nay.

Item C3. Sanitary Sewer/Future Land Use Element Amendments.

Commissioner Scarborough advised there are a series of maps, 4, 12, 2, and 13; and recommended Mr. Scott explain them.

Mel Scott advised the amendments seek to eliminate the internal inconsistencies; that entails amending the Health and Environmental Sanitary Sewer Needs Map; and they proposed to remove Port St. John from that map and delete the specific mention of Port St. John from the table linked to the map. He stated the amendment adds a small portion of Port St. John back into the 0 to 5 which entails a historical IU parcel Mr. Martens intends to provide sewer to with the support of the owner.

Commissioner Scarborough stated it moves forward with the proposition of making all the maps consistent.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Item C3 as recommended by the Local Planning Agency. Motion carried and ordered; Commissioner Higgs voted nay.

Item C5. Board Policy and Procedure - Bicycle and Pedestrian Facilities for County Infrastructure Projects. The Local Planning Agency acknowledged receipt only.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to deny Item C5. Motion carried and ordered unanimously.

Item C6. Annual Monitoring and Evaluation Report. The Local Planning Agency acknowledged receipt only.

Motion by Commissioner Cook, seconded by Commissioner O'Brien, to approve Item C6. Motion carried and ordered unanimously.

Item C7. Capital Improvements and Programs Element Amendments. The Local Planning Agency approved Item C7.

Commissioner Scarborough advised he got a briefing on the item, but the Board does not go over the projects; the magnitude of some of the items is significant; and inquired if the Board has to vote on it tonight; with Mr. Konefal responding yes, the deadline for adoption is three days from today.

Commissioner Cook inquired if it was moved from a prior meeting; with Mr. Konefal responding no. Commissioner Cook inquired why did the Board get it three days prior to adoption; with Mr. Konefal responding staff received the ORC Report on June 30, 1995; the Board is required to adopt amendments within 60 days of that date; and it was approved by the Board to advertise for this date.

Chairman Higgs inquired if it was transmitted to DCA; with Mr. Konefal responding yes, the exact same document was transmitted three months ago.

Commissioner Scarborough advised at the budget meetings, the Board said it would not run those projects through; and if the Board does not discuss it and just submits it, he would not know what is happening in his District much less what is happening in other Districts.

Commissioner O'Brien inquired what will happen if it is not approved tonight; with County Manager Tom Jenkins responding the CIP is coming back to the Board on the regular agenda; they are putting one or two elements per meeting starting next meeting; and the Board directed staff to do that. He stated the CIE deals primarily with consistency.

Assistant Growth Management Director Peggy Busacca advised the CIE does deal primarily with consistency; and the Capital Improvements Element can be adopted separately by ordinance and does not have to be part of this amendment. Commissioner Scarborough inquired how much more time will the Board have to work on it; with Ms. Busacca responding it would be up to the Board. Commissioner Scarborough inquired if it can wait until October; with Ms. Busacca responding yes. Mr. Jenkins stated the Board may want to do the CIE at the same time it does the CIP to have consistency.

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to deny Item C7. Motion carried and ordered unanimously.

Item C8. Ordinance Adopting 1995A Amendments.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to adopt Ordinance amending Article III, Chapter 62, of the Brevard County Code, entitled "The 1988 Comprehensive Plan," setting forth Plan Amendment 95-A of the Comprehensive Plan; amending Section 62-501 entitled contents of the Plan; specifically amending Future Land Use Map Series, Future Land Use Element, Sanitary Sewer Element, and provisions which require amendment to maintain internal consistency with the amendments; providing legal status; providing a severability clause; and providing an effective date, with deletion of Items C4, C5 and C7. Motion carried and ordered unanimously.

Item C9. Final Motion.

Planner Mike Konefal read the final motion as follows: Motion to adopt Comprehensive Plan Amendment 1995A as discussed and based upon thorough review of supporting data and analyses, careful consideration of the recommendations of staff, CRG, Local Planning Agency, and written and oral public comments received; specifically Plan Amendment 1995-A as adopted includes Items B3, B4, B5, C2, Future Land Use Map amendments, Future Land Use Policy amendments, amendments to Sanitary Sewer Element, and provisions which require amendments to maintain internal consistency with these amendments, amendments as a result of the Annual Monitoring and Evaluation Report, and a response to the DCA ORC Report.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to adopt Final Motion as read. Motion carried and ordered unanimously.

APPOINTMENTS, RE: LANDSCAPING/LAND CLEARING TASK FORCE

Motion by Commissioner Scarborough, seconded by Commissioner Cook, to appoint the following to the Landscaping/Land Clearing Task Force:

District 1: David Wise, P. O. Box 1207, Titusville, FL 32781-1207

District 2: Johnie Swann, 1525 S. Tropical Trail, Merritt Island, FL 32952

District 3: Kris Davis, 131 East Avenue A, Melbourne, FL 32901

District 4: Al Notary, 690 Timuquana Drive, Merritt Island, FL 32953

District 5: Graydon Corn, 3690 Aurantia Road, Mims, FL 32754.

Motion carried and ordered unanimously.

DISCUSSION, RE: ORDINANCE AMENDING COMPREHENSIVE PLAN

Commissioner O'Brien advised the ordinances that adopt amendments to the Comprehensive Plan have numerous "whereas" clauses dating back to 1989 that are not necessary; no one ever reads them; and recommended one statement referring to the 1988 Plan with 21 amendments through 1994, or whatever, and not individual statements for each amendment.

Mr. Konefal stated the County Attorney could probably answer that because it came from his office. County Attorney Scott Knox advised he agrees that one all inclusive statement could be used.

DISCUSSION, RE: STAFF RECOMMENDATION ON ZONING ITEMS

Commissioner Cook advised he has been wondering whether the Board increases its exposure by having staff provide recommendations, especially on zoning items. He stated the Board receives recommendations from the Local Planning Agency and other committees, and also has recommendations from staff; and his concern is increasing its liability. He suggested the County Attorney research that and return with a report.

Commissioner O'Brien advised he was told that the Board would increase its liability without staff's recommendation, because if it agrees with the staff and P&Z Board, it is in good shape and nobody can come after it. Commissioner Cook stated when it takes the recommendation of staff that is true, but many times it does not take staff's recommendation; and maybe there is no impact one way or another because the Board is not required to take staff's or the Local Planning Agency's recommendations, but he wonders if it creates more liability for the Board.

County Attorney Scott Knox advised the staff is the Board's expert witnesses; since it is dealing with Snyder, it has to have comprehensive and substantial evidence to support its decisions; and whatever factual determinations staff makes, inure to the benefit of the Board when it makes its decisions. He stated whether the Board agrees with staff's recommendations or not is not really the issue all the time.

Commissioner Cook inquired if the Board does not take staff's recommendation, would they use that in court against the Board; with Mr. Knox responding it can be used against the Board, but the primary thing it is concerned about is getting factual background from staff to make its decisions. Commissioner Cook stated the Board could get factual information, but not in the form of a recommendation; and repeated his concern about increasing exposure. Commissioner O'Brien stated it would not increase exposure because the Board would state its reasons why it does not agree with staff and make its own observations. Commissioner Cook stated in a court of law overruling staff's recommendation would increase exposure. Mr. Knox stated it does not help, but usually staff has different recommendations and options. Commissioner Cook stated there are times when the Board just overrules staff's recommendations, and it is read back in a courtroom; he does not want to increase exposure especially with zoning items it is apt to get sued on from time to time; and it may be something to look at. He stated the Board needs factual information from staff, but perhaps it could be in a different format.

Chairman Higgs advised the percentage of going along with staff's recommendations are more frequent than going against them; so the Board comes out ahead with staff's recommendations; with Commissioner Cook responding he is not sure about that because it would only take one good lawsuit to cost the taxpayers. Commissioner Scarborough stated most of the time there are no objections and the Board goes along with the applicant and staff's recommendation; however, there are some difficult cases; and when staff sees there is a lot of different views being expressed, it is important for them to analyze it. He stated staff should give the Board options and analyses when they know there may be additional information coming forth at the public hearing.

Commissioner Cook stated he would prefer to see options and expert opinions, but he can see recommendations coming back and creating problems. Chairman Higgs stated if the Board wants to change the procedure, it needs to be an agenda item and looked at from all sides.

Commissioner O'Brien stated staff should provide recommendations for approvals and denials and give reasons. Commissioner Cook stated that would be a much better procedure.

Assistant Growth Management Director Peggy Busacca advised if the County Attorney feels comfortable with that, staff feels very comfortable with it; they often come forward with no real complete agreement because of various issues; and it would be easier to provide information and options.

County Manager Tom Jenkins advised this is one of the unique areas where there is no check and balance because he has no checks over what they recommend and does not see most of the things involved.

County Attorney Scott Knox advised in the environment of Snyder, he would be happier without a staff recommendation and just factual background information, as the Local Planning Agency and Planning and Zoning Board provide recommendations. Commissioner Cook stated that would be good; and Ms. Busacca agreed with the suggestion.

DISCUSSION, RE: ZONING BOOK

Commissioner O'Brien stated he does not know what the book costs to put together with a nice cover and separators, etc.; but personally he would prefer the data three-hole punched to put in his notebook then taken out and put in a file folder to file away. He stated staff would not have to keep making the briefing books; they are very nicely done; but they may not be necessary. He complimented staff for the mini-agenda that fits in his binder.

Chairman Higgs stated she likes the book the way it is.

No action was taken on this item.

Upon motion and vote, the meeting adjourned at 10:26 p.m.

ATTEST:

SANDY CRAWFORD, CLERK

(S E A L)

NANCY N. HIGGS, CHAIRMAN

BOARD OF COUNTY COMMISSIONERS

BREVARD COUNTY, FLORIDA