MINUTES OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA

February 1, 2001

The Board of County Commissioners of Brevard County, Florida, met in regular session on February 1, 2001, at 5:30 p.m. in the Government Center Commission Room, Building C, 2725 Judge Fran Jamieson Way, Viera, Florida. Present were: Chairman Sue Carlson, Commissioners Truman Scarborough, Randy O'Brien, Nancy Higgs, and Jackie Colon, Assistant County Manager Peggy Busacca, and Assistant County Attorney Eden Bentley.

The Invocation was given by Commissioner Nancy Higgs.

Commissioner Randy O'Brien led the assembly in the Pledge of Allegiance.

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATIONS OF
JANUARY 8, 2001

Chairman Carlson called for the public hearing to consider recommendations of the Planning and Zoning Board made at its meeting of January 8, 2001, as follows:

Commissioner Colon recommended Item 22 be tabled at the request of the applicant.

Motion by Commissioner Colon, seconded by Commissioner O'Brien, to table Item 22, (Z0101502) Johnny E. Godwin's request for a Mixed-Use District Boundary Expansion and a change from RU-1-7 to BU-1 on 2.98 acres located on the southwest corner of Wood Street and West New Haven Avenue, which was recommended for denial by the LPA and the Planning and Zoning Board, to March 1, 2001. Motion carried and ordered unanimously.

Commissioner Colon recommended Item 25 be tabled so the LPA and the P&Z can review it and make recommendations.

Motion by Commissioner Colon, seconded by Commissioner Scarborough, to table Item 25, (Z0010502) The County Line of Brevard, Inc.'s request for change from TU-2 to BU-1 with a CUP for Permanent Commercial Entertainment and Amusement Enterprises and retaining the existing CUP for Alcoholic Beverages for On-Premises Consumption on 2.71 acres located on the northeast corner of I-95 and U.S. 192, as recommended by the Planning and Zoning Board to the February 5, 2001 P&Z meeting. Motion carried and ordered unanimously.

DISCUSSION, RE: ROTATING ORDER OF ITEMS ON AGENDA BY DISTRICT

Commissioner Colon requested the Board institute a policy of rotating zoning requests every month. She stated the items are currently taken in order of District 1, 2, etc.; in the past it has been possible to rotate; and requested the Board consider the change.

Motion by Commissioner Colon, seconded by Commissioner Scarborough, to institute a policy whereby zoning agenda items are taken on a rotating basis by District. Motion carried and ordered unanimously.

PUBLIC HEARING, RE: TABLED PLANNING AND ZONING BOARD RECOMMENDATIONS
OF OCTOBER 2, 2000 AND NOVEMBER 6, 2000, AND PLANNING AND ZONING
BOARD RECOMMENDATIONS OF JANUARY 8, 2001

Chairman Carlson called for the public hearing to consider tabled Planning and Zoning Board recommendation of October 2, 2000 and November 6, 2000 and Planning and Zoning Board recommendations of January 8, 2001, as follows:

Zoning Official Rick Enos advised there are additional requests for items to be tabled, including II.A.3, II.A.9, and II.B.15.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to table Item II.A.3, (Z0010302) Michael E. and Lorraine C. Demontigny, Marlene Hughes, and Michael E. Hughes' request for change from RR-1 to AU on 50.1± acres located on the east side of Fleming Grant Road, approximately 0.45 mile north of Mockingbird Lane, which was recommended for approval by the Planning and Zoning Board, to the March 1, 2001 Board meeting; Item II.A.9, (Z0011406) Floyd D. and Patricia M. Ellsworth's request for a Small Scale Plan Amendment to change the land use designation from Residential to Mixed Use District and change from AU to BU-2 retaining the existing CUP for a Security Trailer and removing the existing Cup for a Borrow Pit on 9.93 acres located on the north side of Pluckebaum Road, approximately ¼ mile east of Range Road, which was recommended for denial by the LPA and the Planning and Zoning Board, to the March 1, 2001 Board meeting; and Item II.B.15, (Z0101403) State of Florida Department of Transportation's request for a CUP for Towers and Antennae in an AU zone on 0.07± acre located at the northwest portion of the intersection of I-95 and Wickham Road in the FDOT right-of-way, as recommended by the Planning and Zoning Board to the February 5, 2001 P&Z meeting. Motion carried and ordered unanimously.

Mr. Enos advised the tabled items are Items II.A.3, II.A.9, II.B.15, II.B.22, and II.B.25.

PUBLIC HEARING, RE: TABLED PLANNING AND ZONING BOARD RECOMMENDATIONS
OF SEPTEMBER 11, OCTOBER 2, AND NOVEMBER 6, 2000

Chairman Carlson called for the public hearing to consider tabled Planning and Zoning Board recommendations of September 11, October 2, and November 6, 2000, as follows
:
Item 1. (Z0009202) Vi Van Nguyen's request for a CUP for a Marina in a BU-2 zone on 1.5 acres located on the east side of South Banana River Drive, approximately 150 feet south of S.R. 520, which was recommended for approval by the Planning and Zoning Board, contingent upon permits being obtained by all governing State and County agencies.

Commissioner O'Brien stated this is a request for a marina; the Planning and Zoning Board recommended approval contingent upon permits being obtained by all State and County agencies; and the Board tabled it to give the applicant time to think it over. He stated he has not heard anything from the applicant; and inquired if they are present. Chairman Carlson noted there are no cards on the item; inquired if anyone is present representing Item 1; and no response was heard.

Motion by Commissioner O'Brien, to approve Item 1 as recommended by the P&Z Board. The motion died for lack of a second.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to deny Item 1. Motion carried and ordered; Commissioner O'Brien voted nay.

Item 2. (Z0010104) James Howell Duncan's request for change from GU to ARR on 2.01 acres located on the north side of Outback Road, approximately 580 feet west of Satellite Boulevard, which was recommended for approval by the Planning and Zoning Board.

Commissioner Scarborough stated this was tabled at the last meeting for the purpose of having the applicant consider restricting his 2.01 acres to one single-family building; and the Board already heard the other elements. Commissioner Scarborough inquired if Mr. Duncan would be willing to restrict building on the property to one unit; with Mr. Duncan responding no.

Motion by Commissioner Scarborough, seconded by Commissioner Colon, to deny Item 2.

Commissioner Scarborough stated the Board had an extensive discussion about the problems within the 25-year floodplain; and this property is within that floodplain.

Mr. Duncan submitted maps; stated the property next to his property has been granted AGR; that is what he is asking for; and it is consistent with what is surrounding his property. He stated he has owned the property for 15 years.

Chairman Carlson stated the basis of the denial is due to the floodplain impact. Mr. Duncan inquired if that just came to be; with Commissioner Scarborough responding it is going to become more stringent. Commissioner Scarborough stated the Board may consider restricting all building within the 25-year floodplain; so, regardless of what the zoning is, the right to build would be lost. Mr. Duncan inquired about the people who are already out there; with

Commissioner Scarborough advising if someone is already out there, they have a home, but there is a problem in maintaining a capacity for people to go to their property during certain storm events.

Chairman Carlson called for a vote on the motion to deny Item 2. Motion carried and ordered unanimously.

Item 3. (Z0010302) Michael E. and Lorraine C. Demontigny, Marlene Hughes, and Michael E. Hughes' request for change from RR-1 to AU on 50.1± acres located on the east side of Fleming Grant Road, approximately 0.45 mile north of Mockingbird Lane, which was recommended for approval by the Planning and Zoning Board. (Tabled earlier in the meeting to March 1, 2001.)

Item 4. (Z0010303) Kenny and Brenda Helton's request for change from RR-1 to AU on 20.24 acres located on the east side of Fleming Grant Road, approximately 0.92 mile west of Primrose Drive, which was recommended for approval by the Planning and Zoning Board.

Commissioner Higgs stated Ms. Helton is present; and the Board has received a Binding Development Plan from staff.

Brenda Helton stated she is represented by Tom Myers.

Tom Myers, representing Kenny and Brenda Helton, advised of his background as a County Planner and expert witness as to zoning before the Code Enforcement Board and the Special Master. He stated the application by the Heltons is to go back to AU zoning on 20.25 acres; the property was zoned from AU to RR-1 in 1992; and the request was made several months ago, but the Board tabled the item because there were questions and concerns from people in the neighborhood. He expressed appreciation to Commissioner Higgs and her assistant Barbara Arthur for facilitating several meetings with the neighbors; several versions of the binding development agreement came out of the meetings, one as recently as this afternoon; and copies were faxed to the Commissioners. He stated they have gone a long way towards meeting the requests of the neighbors; the property is designated residential at one unit per acre on the Future Land Use Map; and the current RR-1 zoning and the requested AU zoning are both consistent with that under the Zoning Code. He stated they are taking 100 average daily trips off the road because of the reduced density; and the lower density lowers requirements for infrastructure and public services, so concurrency is not an issue. He stated it is consistent with the Comprehensive Plan, and meets the Future Land Use Map and density guidelines; and the real issue is compatibility. He stated the matrix provided in the Comprehensive Plan describes how various zoning classifications relate to each other; agricultural zoning next to RR-1 is considered to be possibly incompatible; and commented on the two sections of the Zoning Code dealing with AU and RR-1. He stated agricultural land use allows a lot of uses that might cause an incompatibility with single-family residential land uses; the neighbors have raised concerns about several of those; and the Heltons have done a good job of addressing them. He stated the binding development agreement says they will have RR-1 plus a couple of rights; they will be able to construct one workshop and one barn prior to the construction of the residence; and they will be able to remove some trees and clear the land to make a pasture for horses prior to construction of the residence. He stated everything else will be exactly like RR-1; that is the promise in the binding development agreement; and they have agreed to limit the horses to two per acre rather than the four that would be allowed in RR-1. He stated from a compatibility standpoint, there is no issue because the uses are essentially identical; it is really a matter of timing; it is a 20.24-acre lot; and with the binding development agreement, it is his expert opinion that the two land uses are very compatible. He stated with the deed restrictions, the house has to be a minimum of 1,600 square feet whereas RR-1 only requires 1,300 square feet; and the binding development agreement stipulates there will only be one barn and one workshop. He stated because the agricultural zoning classification allows an exemption to the building permit process, there was concern that there might be a public health, safety, or welfare issue due to the fact that it would not be necessary to build to hurricane standards; and his client has agreed to meet the hurricane standards in the Building Code. He explained the procedure when a building permit is not required; and advised his clients will include how they intend to comply with the Building Code as far as windloads for review by the Building Department. He stated his clients do not want to pay for a building permit, but will demonstrate to the Building Department as part of the exemption process that they will meet the windload requirements; so there is no legal distinction between the property and RR-1 except that the barn, workshop and land clearing will take place prior to the construction of a residence.

Lorraine Demontigny stated she owns the 52+ acres to the north of the Heltons' property, and supports the request. She stated a lot of public money is being spent to preserve land; in Indian River County, there is a move toward preserving agricultural land; and the Heltons should be commended for their efforts. She stated the Heltons have used due diligence and effort to meet and appease the requests of the neighbors; they have worked closely with appropriate and competent entities of the County to produce substantial evidence as to the need for the zoning change; and they have placed their promises in writing. She requested the Board approve the rezoning.

Marlene Hughes stated she owns the adjoining acreage with Lorraine Demontigny, and supports the Heltons' endeavor.

Lynn Conroy stated her property directly adjoins the Helton property; and expressed appreciation to Commissioner Higgs, the Board, and the Heltons for working to reach an acceptable compromise. She stated she supports the binding development agreement.

Commissioner Higgs stated she has met with a number of the neighbors as well as the applicants; they have diligently pursued an agreement; and that agreement is before the Board.

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

Item 5. (Z0009503) Gleason Brothers & Company's request for change from AU to RU-1-13 on 23.965± acres located on the south side of Aurora Road, approximately 150 feet west of Easy Street, which was recommended for denial by the Planning and Zoning Board.

Attorney Leonard Spielvogel, representing Gleason Brothers & Company, stated he made a presentation at the previous meeting, and does not contemplate making another full presentation; the item was tabled for further study by staff; and the burden should shift to the County. He stated the two issues are compatibility and whether his client is in violation of the Conservation Element with his residential subdivision proposals. He advised his client had meetings with Commissioner Colon, has made a further study of the project, and requests the zoning be changed from EU-2 to SR. He stated SR adequately addresses the issue of compatibility with the surrounding area; at the last meeting Mr. Flotz was asked by one of the Commissioners whether he would agree to an SR designation, but was not in a position to respond affirmatively; and since then the engineer has redone the layout to conform to SR, so his client is requesting the SR zoning. He requested staff explain why his client is in violation of the Conservation Element; stated the issue is whether they will aggravate the flooding condition; and their engineer has done considerable work to determine they are at the proper elevations. He stated the traffic issue went away because the traffic curve is considerably west of the proposed project. He requested staff address the issue so he can respond.

Zoning Official Rick Enos stated staff reviewed the project in some detail; the floodplain goes all the way down to the annual floodplain on this property; and commented on density restrictions in the 100 and 25-year floodplains, which affect approximately one-half of the property. He stated staff also addressed the compatibility problem; a specific detailed analysis was done of the surrounding zoning, neighborhoods, and lot patterns; and they found that the average ownership size in the neighborhoods to the east and south range from a minimum of .36 acre on the west side of Easy Street up to .57 acre. He stated .36 acre is a little over 15,000 square feet; and with the applicants amending the application to SR, which is a half-acre lot, that issue has been eliminated. He stated the other issue was traffic, specifically the distance to the curve and the impacts to the neighborhood to the east; it was determined that the distance to the curve would not create any traffic safety problems, and the Traffic Engineering Director advised the traffic impacts on Easy Street would be minimal; so the only remaining issue is the floodplain.

Environmental Section Supervisor Debbie Coles stated the SR zoning appears to be compatible down to the 25-year floodplain elevation; at that point the densities pursuant to the Floodplain Protection Ordinance turn to one unit per 2.5 acres; the 100-year to 25-year floodplain is one unit per half acre, which is consistent with the requested zoning; but not having the site plan, she cannot tell how many units that would take away or add to the project. Assistant County Manager Peggy Busacca inquired if there would be additional engineering requirements that may be appropriate as they relate to the floodplain. Drainage and Surface Water Director Ron Jones stated the Comprehensive Plan requires compensatory storage; if someone fills within an area that is delineated within the 25-year floodplain, he or she must provide an equivalent volume that would require an excavation to offset it; and there shall be no net historic loss within the floodplain. Chairman Carlson inquired if there has been a calculation on the floodplain percentages; and is there any idea what is actually buildable. Mr. Jones advised staff provided some information based on an estimate of the floodplain elevation for the 100-year floodplain and calculations based on some other work that had been done previously by Post, Buckley, Schuh & Jernigan; approximately 51% of the property is located within the 100-year floodplain, approximately 47% within the 25-year floodplain, and approximately 43% within the 10-year floodplain; staff does not have information on the annual floodplain at this time, but 20% is in the mean annual floodplain, which is based on a 2.33-year event. Ms. Coles stated using those calculations, she developed a rough density based on where the lines would fall and the percentage of acreage in each; since 20% is projected to be within the annual to 10-year floodplain, there is a .48 unit designation for that area; 4% is located within the 10 to 25-year floodplain, which has been given a .38 unit designation; and the 25 to 100-year floodplain has 1.9 units available in that area.

Chairman Carlson stated with SR zoning, not considering the floodplain issue, there can only be half the number of units; and with the floodplain, staff is saying that is going to be reduced even further.

Commissioner Scarborough stated in looking at the different floodplains, there is a unit per certain acre; and requested staff provide those numbers. Ms. Coles responded the 100 to 25-year floodplain has 1.9 units within that area. Commissioner Scarborough inquired how many acres per unit would that be; with Ms. Coles responding half-acre, which would be consistent with the zoning request; and below that there is not a whole unit value available. She stated the 25 to 10-year elevation is .38 unit, which is 2.5 acres for one residence; and below the 10-year elevation is one dwelling unit per 10 acres.

Mr. Spielvogel requested the client's engineer be allowed to respond; and stated a lot of assumptions are being made on what may not be a valid foundation. He stated the engineer disagrees with the conclusions of staff as to what floodplain the property is in; and inquired how staff knows what the floodplain elevations are, have they been out there, or are they referring to the study by Post, Buckley, Schuh & Jernigan, which was for the Eau Gallie Basin, and did not reach the subject property. He stated the engineer has been to the property and has done what staff has not done; staff relies on FEMA maps to a great extent, but they are not site specific; and what the engineer has done is make the study site specific. He stated they are requesting SR zoning; the stipulations in the Conservation Element are binding; his client wants to continue the study and submit it to staff; and staff can process it, forward it to FEMA, and FEMA will make the final determination of the elevation.

Richard Kern, Civil Engineer on the project, stated he has reviewed the memorandum prepared by staff concerning the floodplain issues on the site; and it says, "prior to any final action on the proposed plan, better estimates may be made by the consultant who prepared the Upper Eau Gallie Stormwater Master Plan, if warranted." He stated it is his opinion that the estimates were based upon best available information and are accurate to one-half foot; but the subject property was not included in that study. He stated the estimates of the floodplain in staff's memo were not based on a detailed engineering study on the site specifically; and as part of the design process, he would do that from his detailed study. He stated he already used some of the County's information, went to the site, and did more detailed cross sections; and he has had very detailed site topographies done to evaluate the floodplain on the property, which he will submit to County for review. He stated his findings indicate the floodplain is lower than what was the best guess of staff; and the proposed SR zoning will allow the freedom and opportunity to comply with the Comprehensive Plan, including density restrictions, no net loss provisions, and no adverse impact on flooding of the surrounding area.

Mr. Jones stated the Upper Eau Gallie Stormwater Management Master Plan was not the exclusive piece of information utilized to make the floodplain determination on the property; at the time the County was performing the Upper Eau Gallie Plan, it was also performing the Sarno Lakes Master Plan because during a 100-year flood event, both basins are interconnected; the determination was made by John Denninghoff; and advised of Mr. Denninghoff's background and qualifications. He stated they considered the existing topography on the site; they have copies of the topography submitted by the applicant; they looked at the FEMA maps; and it is clear the area is connected to the riverine floodplain. He stated in terms of the detailed study, the riverine floodplain ends approximately 1,500 to 2,000 feet away from the subject property; staff extrapolated from that information, looked at the location on the floodplain mapping, determined an elevation based on that, and applied it to the existing topography shown on the site plan that was submitted by the applicant. He stated as far as it being a best guess, it is the responsibility of staff, in accordance with its Agreement with FEMA, to identify those elevations in unstudied areas; and staff has advised the applicant that should he wish to perform a detailed floodplain analysis of the subject site, staff would be willing, if it determined it was suitable, to submit the analysis to FEMA for a final determination on whether it chose to revise the floodplain mapping. He stated it was not a best guess by staff, but the same technology that is utilized on every project it looks at; and it is further corroborated by the information that is part of the Upper Eau Gallie Study as well as information from recent flooding events such as Hurricane Erin and from the analysis by Post, Buckley, Schuh & Jernigan. He stated looking at the Post, Buckley, Schuh & Jernigan analysis made staff more conservative; and they probably called the floodplain elevation a half-foot lower as a result of having that information and a detailed survey of the area, than if it just had mapping alone.

Mr. Kern stated even with the County's determination of the floodplain to date, with SR zoning, the applicant can still comply with the restrictions of the Comprehensive Plan in terms of the drainage issues.

Ms. Coles advised if the detailed study shows that the floodplain lines change, the Harry T. and Harriette V. Moore Justice Center wetland densities may come into play because right now the floodplain densities overshadow the one unit per five acres within wetlands; it is necessary to plat the lots so there is buildable upland in each lot; and that may come about if the line for the floodplain changes at the development or review process.

Mr. Jones stated the Comprehensive Plan specifically provides the Board with some latitude with respect to the area between the 25 and 100-year floodplain; it says, "the County will coordinate with the St. Johns River Water Management District and determine the amount of fill allowable within the area"; the County is spending a large amount of taxpayers' money on this area trying to resolve the flooding issues; and the concern is based on ensuring the benefits being derived as a result of those improvements are not usurped as a result of additional development within the floodplain.

Chairman Carlson stated there are several cards for public input; and requested speakers limit their comments to the discussion on the issues presented at this meeting.

Jean Strickland stated the public is caught off-guard with the recent suggestion to change to SR zoning; the public would like the ability to look at a plan and get an actual number of lots; but given that, the community would agree to SR zoning.

Chairman Carlson inquired if everyone who submitted a speaker card is in agreement; with Ms. Strickland responding yes.

Commissioner Colon stated she facilitated meetings between the applicant and the homeowners; and she is willing to proceed again to see if they can reach some agreement. She stated the applicant is taking the initiative; and if the applicant is willing, and it is all right with the Board, she is willing to see if something can be worked out.

Motion by Commissioner Colon, seconded by Commissioner Scarborough, to table Item 5 to March 1, 2001.

Commissioner Higgs suggested there may be a date prior to the March meeting, if the citizens and the applicant can get together. Ms. Busacca advised February 20, 2001 is a night meeting. Commissioner Colon stated the sooner the better.

Motion by Commissioner Colon, seconded by Commissioner Higgs, to table Item 5 to February 20, 2001 at 5:30 p.m. Motion carried and ordered unanimously.

The meeting recessed at 6:28 p.m. and reconvened at 6:35 p.m.

Item 6. (Z0011201) George James and Nancy Rene Cusumano's request for a CUP for Alcoholic Beverages for On-Premises Consumption in a BU-2 zone on 0.26 acre located on the west side of Banana River Drive, approximately 500 feet north of S.R. 528, which was recommended for approval by the Planning and Zoning Board.

Chuck Paulsen stated he is leasing the property; and the item was tabled because of the parking. He stated he has 1,200 feet of parking other than the three spaces that have to be there; and submitted paperwork.

Chairman Carlson suggested the item be held until later in the meeting to allow staff and the Attorney to look at the submittal. Commissioner O'Brien requested Mr. Paulsen confer with Planner Robin Sobrino before the item is brought back later in the meeting.

Item 7. (Z0011403) Cross Creek Homeowners Association of Brevard, Inc.'s request for change from PUD and RU-1-13 to EA on 9.392 acres located approximately 115 feet south of St. Andrews Boulevard, south of St. Andrews Isles and east of Sawgrass at Suntree, which was recommended for approval by the Planning and Zoning Board; and Item 8. (Z0011404) A. Duda and Sons, Inc.'s request for change from PUD and RU-1-7 to RU-1-13 and removing the existing BDP in the RU-1-8 area on 29.576± acres located at the southern terminus of St. Andrews Boulevard, which was recommended for approval by the Planning and Zoning Board with a BDP limited to 67 lots.

Attorney Richard Torpy, representing Cross Creek Homeowners Association of Brevard, Inc. and A. Duda and Sons, Inc., stated Items 7 and 8 are related, and at the last meeting the Board considered them together. He stated when the items were tabled at the last meeting, one of the significant questions was how purchasers might get notice that the proposed Pineda extension and whatever will happen to St. Andrews Boulevard were going to be in close proximity; there is notice on the map; and he has provided a binding development agreement specifically requiring the notice. He read aloud from the proposed binding development agreement, "The extension of the Pineda Causeway and/or St. Andrews Boulevard may be constructed sometime in the future adjacent to or nearby the Sawgrass South, Phase 1 Subdivision, and your purchase of a lot should be governed with this knowledge and understanding." He stated to further make sure people understand it will be in the deed restrictions and when a plat is created, it will be attached to the binding development agreement. He noted Florida law requires the deed of restrictions to be given to a purchaser of land; and that person has seven business days from the date he receives the notice to cancel any contract he may have; so the notice will be physically put in the buyer's hands and he will have seven days to read it, and if he does not like what it says, to cancel the contract. He stated a couple of other issues have come up; although there is talk about the Pineda extension and the proposed extension of St. Andrews Boulevard, they are not at the issue of the exact alignment yet; and they are only present for rezoning to RU-1-13. He advised they have agreed in writing to a maximum of 67 lots, with homes a minimum of 1,900 square feet, and density at a maximum of 1.75 units per acre; and that is all the Board would be agreeing to tonight. He stated if the zoning is granted tonight, they are not even far enough into the permitting process to make determinations about alignment of roads or lot configurations; what they have shown the Board is what they would like to do as far as the subdivision is concerned, but it is not carved in stone; and it will come back before the Board again for plat approval. He noted plat approvals are usually done on the Consent Agenda, but if the Board desires, the whole thing can come back for discussion and public comment. He requested the Board focus on the zoning issue; stated staff's review indicates they are probably compatible, which is the highest rating possible; they are consistent; and they meet all the requirements of the Comprehensive Plan and Land Development Code.

Commissioner Higgs inquired if the applicant is agreeing to give the County right-of-way as a part of this; with Mr. Torpy responding yes, and he has proposed language to address that.

Assistant County Attorney Eden Bentley requested the first sentence be changed to, "The developer shall provide adequate right-of-way for a north/south corridor running through or along the development. The alignment has not yet been established. Final plat approval shall be subject to approval of the right-of-way location by the Brevard County Transportation and Traffic Departments and dedication of the right-of-way to Brevard County." Mr. Torpy stated he has not problem with that language; but clarified they are only agreeing to one right-of-way, not a second right-of-way. He stated one of the concerns raised by staff concerning the original drawings was the potential alignment of St. Andrews Boulevard coming through and ultimately connecting to the Pineda extension; there is an eagle's nest, which is not on the applicant's property; and there was concern that if there was no leeway to adjust how the right-of-way goes, it might be too narrow for what the Board will need in the future. He stated the applicant has no problem with the adjustment; and it will come up during the permitting phase.

Commissioner Higgs stated she heard a north/south reference, but it looks like it goes east/west. Chairman Carlson stated what Mr. Torpy is trying to clarify is this is an example of what it could look like, but they have not gotten to the permitting process. Mr. Torpy advised St. Andrews Boulevard starts in the north and ends to the south; how it will zigzag through, if it does at all, is yet to be determined; and St. Andrews Boulevard is in essence a north/south corridor, although it is not straight north/south. Commissioner Higgs inquired if it is not Mr. Torpy's desire to say they would not give an east/west right-of-way, but that he would cooperate to give that right-of-way; with Mr. Torpy responding that is correct. Commissioner Higgs noted there was an objection raised by the legal representative for Pineda Partners; and inquired if Ms. Bentley is comfortable that the connections and where those will go will not be affected by moving forward with the zoning this evening; with Ms. Bentley responding she is comfortable it will not create a problem.

Chairman Carlson inquired if there is any problem since there are two separate issues; with Ms. Bentley advising the Board will need to make two different motions even though the zoning items are related because there are two applications.

Mr. Torpy stated he did not address Item 7, which is a conservation easement zone.

Commissioner O'Brien inquired if anyone considered the school overcrowding that may take place as a result of the development; with Mr. Torpy responding the County's land use process does not involve a school component. Mr. Torpy stated that could ultimately affect them at the permitting phase if the County said they could not develop because they do not have concurrency; but it should not happen because staff has not looked at this issue and it has not been a part of the process historically. Commissioner O'Brien stated it should be; the Board should move swiftly to look at the issue; more development is taking place; and the Board should consider the effect on school overcrowding that a development such as the one being considered would have. Mr. Torpy stated the Board would have to consider that issue for all developments in the County; but since the Board has not done that so far, it catches him offguard to try to address it. Chairman Carlson stated the Board will be addressing it fairly soon.

Mary Sphar, representing Sierra Club, Turtle Coast Group, stated Sierra Club is addressing only the wetlands issue in the zoning application, and is not taking a position on the application as a whole. She stated the proposed development is one of the first tests of the County's application of the residential component of the new Comprehensive Plan wetlands language which became effective January 14, 2000; the applicant has submitted a general layout showing how the development would be subdivided, which is subject to change; and she was surprised to find that three lots were made up totally of wetlands and more appeared to lack enough uplands to build a residence. She stated such a layout would violate the new Comprehensive Plan language, which contains the requirement that residential property that includes wetland areas shall be subdivided in such a way that buildable areas are included in each lot, and that subdivided lots shall contain sufficient uplands for the intended use and for any buffering necessary to maintain the function of the wetlands and shall be compatible with adjacent uses. She stated Sierra Club was one of the parties involved in a legal effort lasting four and one-half years, which resulted in the new Comprehensive Plan language; Sierra Club wants the language to be applied correctly in appropriate cases; and inquired if a stipulation should be placed in the binding development plan about subdividing lots to include sufficient uplands for residential units and any buffering necessary to maintain the function of the wetlands. She inquired if the County is prepared to enforce the new Comprehensive Plan language in this case; and at what point will the developer be formally notified of the new requirements. She stated staff comments in the Agenda package need amplification; they have not clearly stated the new requirement; and inquired at what review stage and through what process will the County make sure the lots are subdivided in accordance with the new requirements. She stated Sierra Club wants the new language applied correctly through a binding development plan provision or other effective means to insure the newly subdivided lots do not impact wetlands.

Mr. Torpy stated they have talked about the issue, but are not in that phase of the project yet; they will have to go through the County's staff for permitting, which will include the Comprehensive Plan policies for wetlands, St. Johns River Water Management District requirements, and potentially requirements of federal agencies; this will come back for final approval, after review by all agencies; so there are several checks and balances in the system where the issues will be addressed. He stated if they cannot meet the requirements of the Code, the project will undergo substantial redesign so it can meet the requirements.

Commissioner Higgs requested a staff report on the application of the new Comprehensive Plan language concerning this specific issue as well as other issues relating to subdividing residential land and how they will be implemented.

Chairman Carlson stated the Board approved this language last year; and inquired how is it to be applied, and why is it not indicated in the notes for the item. Assistant County Manager Peggy Busacca responded the intent was that it would be reviewed at the time the land was actually subdivided; the Natural Resources office is part of that review; as each lot is laid out, the wetlands would have to be delineated by the consultant with ground truthing; and it would be determined when a specific line is delineated on the property. Chairman Carlson stated the notes say the Natural Resources office has reviewed the rezoning request for Comprehensive Plan compatibility; and inquired if the language would not be put into that review; with Ms. Busacca responding it could be in the future.

Mr. Torpy explained the difficulty in doing it at this level as the engineering is not done yet. Chairman Carlson stated the Board will get a report.

Motion by Commissioner Colon, seconded by Commissioner Carlson, to approve Item 8, with a BDP as submitted, with Condition #6 changed to, "The developer shall provide adequate right-of-way for a north/south corridor running through or along the development. The alignment has not yet been established. Final plat approval shall be subject to the approval of the right-of-way location and width by the County and dedication of right-of-way to the County." Motion carried and ordered unanimously.

Motion by Commissioner Higgs, seconded by Commissioner Colon, to approve Item 7 as recommended. Motion carried and ordered unanimously.

George James and Nancy Rene Cusumano's request for a CUP for Alcoholic Beverages for On-Premises Consumption in a BU-2 zone on 0.26 acre located on the west side of Banana River Drive, approximately 500 feet north of S.R. 528, which was recommended for approval by the Planning and Zoning Board.

Zoning Official Rick Enos stated the site plan Mr. Paulsen presented was the same one the County had on record; it does not appear there is any additional room on the site for parking above the three parking spaces on the site plan without major changes to the site plan; and as he is not an engineer, he cannot say whether that is possible or not. He stated currently the vehicles that park on the site are using the retention area or driveway; and staff does not see how they can get more than three parking spaces on the site the way it is designed now.

Commissioner O'Brien inquired if staff personally visited the site; with Mr. Enos responding yes. Commissioner O'Brien stated so did he. Charles Paulsen stated he also rented the five lots across the street. Commissioner O'Brien inquired if he discussed that with staff; with Mr. Paulsen responding no. Commissioner O'Brien stated Mr. Paulsen is trying to operate a bar and sell beer for on-premise consumption. Mr. Paulsen advised he is also trying to operate a bait and tackle shop. Commissioner O'Brien stated if Mr. Paulsen stayed with the bait and tackle shop and sold beer for takeout, that is not a problem; but he is operating a bar without a permit, and that is not the route he should be traveling. He stated the parking is not there and people are parking on someone else's property. Mr. Paulsen stated he just leased the five lots across the street. Mr. Enos advised it is possible through the site plan regulations to have some limited parking across the street; but without Mr. Paulsen going through that process, he does not know how many more parking spaces he could get or how many seats for this establishment that would allow. Assistant County Manager Peggy Busacca inquired if the property Mr. Paulsen is leasing is zoned properly for parking. Commissioner O'Brien stated Mr. Paulsen has come back twice, but the parking problem is still the same. Mr. Paulsen inquired why the Planning and Zoning Board passed this and the Board is saying no; with Commissioner O'Brien responding the Planning and Zoning Board is an advisory board; and no one on that board went to the site or recognized there were only three parking spaces. Mr. Paulsen inquired if Commissioner O'Brien saw the report he had to fill out; with Commissioner O'Brien responding affirmatively. Mr. Enos advised the lots directly across the street are zoned GU, so would not be zoned properly for parking to support Mr. Paulsen's establishment. Commissioner O'Brien advised he will move to table this item one more time; and if Mr. Paulsen can get everything straightened out, he will move to approve at that meeting, but if not, he will move to deny.

Motion by Commissioner O'Brien, seconded by Commissioner Colon, to table Item 6 to March 1, 2001 BCC meeting. Motion carried and ordered unanimously.

Item 9. (Z0011406) Floyd D. and Patricia M Ellsworth's request for a Small Scale Plan Amendment to change the land use designation from Residential to Mixed Use District and change from AU to BU-2 retaining the existing CUP for a Security Trailer and removing the existing CUP for a Borrow Pit on 9.93 acres located on the north side of Pluckebaum Road, approximately ¼ mile east of Range Road, which was recommended for denial by the LPA and the Planning and Zoning Board. (Tabled earlier in the meeting to March 1, 2001.)

The meeting recessed at 7:01 p.m. and reconvened at 7:16 p.m.

PUBLIC HEARING, RE: PLANNING AND ZONING BOARD RECOMMENDATIONS OF
JANUARY 8, 2001

Item 1. Removed from Agenda.

Item 2. (Z0101102) Barbara Ann Holder's request for change from GU to AU on 2.36 acres located on the east side of Pine Street, approximately 450 feet north of Areca Palm Street, which was recommended for approval by the Planning and Zoning Board.

Barbara Holder stated she is requesting change from GU to AU.

Commissioner Scarborough stated this property is outside the floodplain.

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

Item 3. (Z0101103) 4 G's of Brevard County, Inc's request for change from AU to RRMH-1 on 1.14 acres located on the south side of Airboat Avenue, approximately 0.37 mile west of Satellite Boulevard, which was recommended for approval by the Planning and Zoning Board.

Commissioner Scarborough stated this is 1.14 acres that lie within the ten-year floodplain; in the Canaveral Groves area there is an area that is platted, but there are no road rights-of-way; and there is a question on whether the improvements can be put in. He stated it is sort of a no-man's land; and if the rules were applied, it would be one unit per ten acres. He stated the Board needs to discuss where it wants to go with some of the policies.

Luke Richardson stated he is the applicant for the rezoning.

Commissioner Scarborough stated the Board at a recent meeting talked about changing the policy on building in the 25-year floodplain; this property is in the 10-year floodplain; and the density should be one unit per ten acres. He stated he would not mind tabling this to see where it ends up; and inquired why should anyone build in an area that the County knows will flood. He commented on the St. Johns River and drainage.

Commissioner O'Brien stated he agrees the responsibility stops with the Board; and inquired if it does not stop growth going into areas that it knows will flood, is it being irresponsible. He stated the Board has the knowledge that land will be flooded in any big storm event; and it is not just one individual with a mobile home but what will happen in 20 years when there are 150 mobile homes in the area being flooded. He stated a lot of deeds should be stamped flood zone so people know what they are buying.

Commissioner Higgs stated the Board needs to formulate a policy statement that is specific and is implemented across-the-board fairly and consistently. She stated the best course of action would be to act consistently with the Comprehensive Plan, and table the items so the Board has time to formulate where it will go.

Commissioner Scarborough stated that is fair to the applicant.

Chairman Carlson stated Ms. Coles advised her the St. Johns River Water Management District has been trying to purchase some of the 10-year floodplain. Environmental Section Supervisor Debbie Coles stated the St. Johns River Water Management District currently owns to the back property line of the West Canaveral Groves plat; the Department of Environmental Protection and the St. Johns River Water Management District are interested in acquiring up to the 25-year floodplain in most locations; and Ron Jones has been talking to those agencies.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to table Item 3 to May 3, 2001.

Commissioner Scarborough recommended the applicant call his office so he can keep him posted because he needs to be involved in the discussions.

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

Commissioner O'Brien stated this is a big area; and anyone else coming in should be told before putting their money down that the Board is denying this kind of request. Commissioner Scarborough stated the Board is putting them on hold until there is a policy.

Motion by Commissioner O'Brien, seconded by Commissioner Scarborough, to direct staff to determine the boundaries of the 25-year floodplain, and advise anyone applying for rezoning within those boundaries that their application will be held in abeyance.

Assistant County Attorney Eden Bentley stated the Board cannot do that; it needs to let the people know there is a study going on and there is a possibility it may be tabled; but if the Board wants to stop all zoning applications, it needs to adopt a moratorium. Commissioner Scarborough inquired if staff can take their application but advise them the Board is tabling such items; and stated that would not require a moratorium. Ms. Bentley stated the Board needs to look at them item by item if it desires to do that. Commissioner Scarborough suggested having a moratorium.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to direct the County Attorney to prepare an ordinance establishing a moratorium on any rezonings within the 25-year floodplain.

Ms. Bentley inquired how many acres would that impact; with Ms. Busacca responding within West Canaveral Groves it is approximately 55%, so that would be 1,000 acres. Ms. Bentley inquired if the Board just wants to do Canaveral Groves; with Commissioner Scarborough responding it is not fair to just do West Canaveral Groves. Ms. Busacca stated staff can put together some information and bring it back to the Board. Commissioner Scarborough stated it would be unfair to single out Canaveral Groves; and staff will bring back information on February 6, 2001.

Item 4. (Z0101104) Patrick M. and Martha C. Badgett's request for change from GU to ARR on 1 acre located on the south side of Soggy Bottom Avenue, approximately 300 feet east of Satellite Boulevard, which was recommended for approval by the Planning and Zoning Board.

Commissioner Scarborough stated the maps show the property to be in the 25-year floodplain, which is not the same as being in the 10-year floodplain like the previous applicant; but looking at the Comprehensive Plan, the density is one unit to two and one-half acres. He stated he does not know what is going to evolve; Mr. Badgett is welcome to comment; but the Board may want to look at all of the things in the same context of how to make it work within that area.

Patrick Badgett stated he is interested in rezoning for one house per acre. Commissioner Carlson inquired if Mr. Badgett understands what was done in the previous motion; with Mr. Badgett responding affirmatively. Chairman Carlson stated the Board is putting a hold on anything that is within the 10 or 25-year floodplain until staff can look at that and see what the potential impacts are. Mr. Badgett inquired if his property falls within those floodplains; with Commissioner Scarborough responding it does; and Commissioner Scarborough recommended Mr. Badgett call his office for more information.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to table Item 4 to May 3, 2001. Motion carried and ordered; Commissioner Colon voted nay.

Item 5. (Z0101105) Linnea D. Reid and Ray G. Reid's request for Small Scale Plan Amendment to change the land use from Residential to Mixed Use District and change from BU-1 and RU-2-10 to all BU-1 with a CUP for Alcoholic Beverages for On-Premises Consumption on 1.78 acres located on the east side of U.S. 1, approximately 135 feet south of Broadway Avenue, which was recommended for approval by the LPA, and recommended for approval by the Planning and Zoning Board with a Binding Development Plan.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Item 5 as recommended by the P&Z Board with Conditional Use Permit and a binding development plan; and adopt an Ordinance amending Article III, Chapter 62, of the Code of Ordinances of Brevard County, entitled "the 1988 Comprehensive Plan," setting forth the First Small Scale Plan Amendment of 2001, 01S.1, to the Future Land Use Map of the Comprehensive Plan; amending Section 62-501 entitled Contents of the Plan; specifically amending Section 62-501, Part XI(E), entitled The Future Land Use Map Appendix; and provisions which require amendment to maintain internal consistency with these amendments; providing legal status; providing a severability clause; and providing an effective date. Motion carried and ordered unanimously.

Item 6. (Z0101106) Robert M. And Barbara A. Thebes' request for change from GU to AU on 1.04 acres located on the east side of Knoxville Avenue, immediately north of the eastern terminus of Fargo Street, which was recommended for approval by the Planning and Zoning Board.

Commissioner Scarborough stated the property is outside of the flood zone.

Robert Thebes stated the request is from General Use to Agriculture because they are planning to get a pony.

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

Item 7. (Z0101201) Dennis F. and Rose M. Troyan's request for change from GU to BU-2 on 0.26 acre located on the north side of Lambert Drive, approximately 150 feet west of Banana River Drive, which was recommended for approval by the Planning and Zoning Board.

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

Item 8. (Z0101202) Dr. Charles W. Church, Paul D. Lewis, Robert G. Milliken, and Duane A. Watson's request for change from BU-1 to RU-2-15 with an amendment to the existing BDP, and removing the existing SUP for a Cabinet Shop on 7.79± acres located on the south side of Audubon Road on the north side of Merritt Avenue, approximately 325 feet east of the Merritt Avenue, Hampton Way intersection, which was recommended for approval by the Planning and Zoning Board, with a Binding Development Plan, and recommendation that the wall be at the maximum height permitted by the Code, depending on its location.

Attorney Robert Beals, representing Dr. Charles Church, Paul Lewis, Robert Milliken and Duane Watson, stated this has been before the Merritt Island Redevelopment Agency as well as the Planning and Zoning Board; it is a downzoning of the property located at Audubon Road and Merritt Avenue; it is currently zoned BU-1 with a binding development plan; and the proposed rezoning will be for RU-2-15. He displayed a preliminary site plan showing six condominium buildings; stated the binding development plan calls for a maximum of 96 units; and at this point they do not know if that is feasible, but it would be the maximum. He stated this is eight acres of a 36-acre site; and the balance of the site is almost 100% wetlands. He stated BU-1 has been retained on the perimeter of the property; the staff report indicates it was to circumvent the height limitation; but it is to circumvent the expense of having two applications. He stated it is the equivalent of a conditional use permit because it will allow them to go to 45 feet; there is nothing deceptive about it; it was suggested by the engineer; and the difference is going from 35 feet to 45 feet which will allow a five-story building, with the bottom floor a garage. He stated they will be upscale condominium units, each facing outwards; and advised of meetings with the Hampton Homeowners Association. He stated they have satisfied the requests of the homeowners; they have incorporated an amendment to the existing Binding Development Plan to provide for a buffer planted with live and laurel oak trees, four to six inches in diameter at the base; and right now there are a lot of pepper trees they would like to take out and replace with native vegetation. He stated the density has been limited; the binding development plan needs to be changed as it relates to the concrete wall that will be built along the buffer where the trees are between Hampton Homes and the project; the prior version said four to six feet as permitted under the applicable Code depending on setback; and the applicant has agreed to build it as high as it can be built, which Mr. Enos advises is four feet. He stated the language can be revised to "as high as permitted by applicable Ordinance" or it can say "four feet", whichever the County Attorney feels is more appropriate; and the President of the Hampton Homeowners spoke in favor of the rezoning at both P&Z meetings. He stated there is a County lift station on the property; advised of a letter from Water Resources Director Richard Martens to Duane Watson, who is one of the owners, providing for a breakdown of how the lift station will be retrofitted and put down to ground level; the developer's share of the project is $60,500 before factoring in overhead and profit; and the developer has agreed to do this. He stated the preliminary site plan delineates the wetlands on the property; staff has a copy of the letter from the St. Johns River Water Management District, which concurs with their placement of the wetlands; while this is not a function of zoning, the applicants are well aware of the requirements; and whether they reconfigure or mitigate is a site plan function.

Mary Sphar, representing Sierra Club, Turtle Coast Group, stated Sierra Club is addressing the zoning application only for the wetlands issue; and noted the property is down the street from the Ulumae National Wildlife Refuge. She stated the property is currently zoned BU-1; and a commercial project would be prohibited from impacting any wetlands since the "substantially surrounded" requirements would not be met. She stated the applicant would like to change the zoning to multi-family; the concept plan shows three of the six buildings impacting the wetlands; and inquired if this would be a violation of Comprehensive Plan Policy 5.2.f.1, which says, "residential land uses shall be limited to not more than one dwelling unit for five acres unless strict application of this Policy renders a legally established parcel as of September 9, 1988, which is less than five acres, unbuildable." Ms. Coles advised there are going to be changes during the site plan process; and one of the changes the County is requesting is that the units be moved out of the wetlands because there is not sufficient upland to accommodate the development. Ms. Sphar stated the Sierra Club is also concerned with the lack of sufficient buffer to preserve wetland functions; in the wetlands language there is provision for sufficient buffer for subdivided lots, but not for multifamily; and that should be taken care of. She urged the Board to require additional language in the binding development plan specifying no wetland impacts and that there will be sufficient buffer surrounding the wetlands to preserve the wetland functions; and suggested asking for a 25-foot buffer of native vegetation. She inquired if it would be setting unwise precedent to allow the rezoning to exclude the narrow strip of BU-1 on the east and west, the majority of which is unbuildable wetlands in an attempt to circumvent the height restriction of 35 feet; advised the wetlands are very near to the Ulumae National Wildlife Refuge; and requested the binding development plan be amended to prohibit wetland impacts and provide sufficient buffer area to preserve the wetlands function.

Amy Mosher submitted photographs; and stated she visited the site three times, and is concerned about the proximity of the site to the Ulumae National Wildlife Refuge and Sykes Creek. She stated the photographs identify the three wetlands, show the buffer, and illustrate the traffic situation. She stated the property is on a two-lane road with no turn or acceleration lane; with 96 units at eight trips per day per unit, there will be almost 1,000 trips per day on the road; and there is no room to widen the road. She stated the last pictures show a five-story unit; and the aerial photo shows the expanse of the wetlands and how contiguous it is to Sykes Creek and the Refuge. She stated the applicant is asking for six buildings, with a total of 96 units to be tightly fit onto 7.79 acres; the applicant is proposing to impact wetlands with parking areas and buildings; and the condominium development would have an adverse impact on the wetlands and mangrove buffer that is currently intact. She stated there would also be an impact on the wildlife that inhabits this area; and described various wildlife seen in the area, including brown pelicans, which are federally listed as endangered and threatened. She commented on the traffic issue with BJ's Warehouse across the street, speed and congestion of traffic on Merritt Avenue, and lack of turn and acceleration lanes. She stated the binding development plan should require a 25-foot buffer, zero net loss of wetlands, and eradication of exotics.

Mr. Beals stated to put no net loss in the binding development plan would eliminate the ability to mitigate; the buffer is a function of site planning; and the applicants own the property that is wetlands to the side of the subject property, and will do whatever is necessary to preserve it. He stated the property can be developed as BU-1; and the trips produced per day on a commercial site of this size would be 11,000 trips per day as opposed to less than 1,000 with multifamily.

Chairman Carlson stated she has a concern about etching out the ten feet of BU-1 around the perimeter to take into consideration the height issue, and avoid the issue of wetlands. Commissioner O'Brien stated that was answered by staff earlier; and when the permitting process begins, the County is going to tell the developer to move all of the buildings and construction out of the wetlands.

Chairman Carlson stated the circumvention of how the County does business is obvious; and even though the applicant is upfront about it, it seems strange that in a commercial setting there would be no building in wetlands, but the applicant is being allowed to keep BU-1 along the perimeter to take advantage of other rules and regulations.

Commissioner O'Brien stated this is a downzoning; if it stayed BU-1 and was developed commercially, almost 13,000 trips per day could be generated, whereas a residential area would be less than 1,000 trips per day; and Mr. Beals has indicated he is willing to submit a binding development plan which will include the buffer and ingress and egress only on Merritt Avenue, so the people of Hampton Homes are not impacted. He stated the applicants met with the homeowners earlier, which is why there are not 75 people asking for denial. He stated the concerns of the people who spoke before the Board are well meant; but staff answered the questions by saying it would not allow building on the wetlands and mitigation is allowed for some of it. He stated they will build a wall according to Code; and Ulumae Park is across Sykes Creek at least one-half mile way. He stated the buffer will be discussed during the permitting process; and requested comment from staff. Ms. Coles stated because the site is residential use, there is no mandatory buffer size associated with it; the policy says a buffer sufficient to maintain the function of the wetland; and if there are impacts within wetlands, that will affect the overall density calculations within the project; and could reduce the density by approximately nine units.

Commissioner O'Brien expressed concern about the lack of a turn lane from the eastbound side of Merritt Avenue; and stated he hopes that problem can be resolved with the developer. Ms. Busacca stated during the site plan review process, Traffic Engineering will review that, and if they feel that a turn lane is warranted, it will be required. Commissioner O'Brien stated Mr. Beals indicated he will take care of that problem. He stated he has been to the property; the plans show there are wetland impacts; and staff guarantees there will be no wetland impacts.

Motion by Commissioner O'Brien, to approve Item 8, with a binding development plan including a planted buffer and four-foot wall. Motion died for lack of a second.

Commissioner Higgs stated Mr. Beals is proposing something different than has been done in the past with the BU-1 on the perimeter; and if the applicant could make some assurances concerning the wetlands impacts as well as some buffers, it could help. She stated what has been requested is that there will be no buildings in the wetlands area and the developer would work on some buffers; with Mr. Beals responding they are willing. Commissioner Higgs stated the binding development plan should provide that there will be no impacts to the wetlands; with Mr. Beals indicating that is acceptable. Commissioner Higgs inquired about buffers on the wetlands. Mr. Beals inquired if Commissioner Higgs is referring to the east side of the property. Chairman Carlson stated the question is what kind of buffer would be offered, depending on where the wetlands are delineated, which is not known at this point. Mr. Beals stated that is known; and the buffer would be from Merritt Avenue along the eastern side of the property up to where it meets Audubon Road. Commissioner Higgs stated she is talking about some way of buffering the wetlands from the impacts of the development. Ms. Coles stated Commissioner Higgs is talking about a native vegetated buffer; it would probably necessitate some stemwall construction along the eastern property boundary; and suggested a 25-foot buffer along the impoundment area and a 15-foot buffer along the areas to the south and west of the property.

Commissioner Scarborough stated no one is present from the Garden Club, but they had expressed concern about runoff of fertilizers, pesticides and other toxic waste which could pollute and contaminate the wetlands; and the buffer would keep those things from getting into the wetland and changing its functionality. Commissioner Higgs stated that is correct; and Ms. Coles has indicated an appropriate buffer. Mr. Beals stated they will be happy to incorporate that.

Motion by Commissioner O'Brien, seconded by Commissioner Higgs, to approve Item 8 with a Binding Development Plan including no impact to wetlands, a 25-foot native vegetative buffer on the impounded area, and a 15-foot buffer along the areas to the south and west. Motion carried and ordered unanimously.

Commissioner Higgs stated she met with Mr. Watson and discussed the binding development plan, but made no statement in terms of how she would vote on the item.

Item 9. (Z0101301) Brevard County Board of County Commissioners, on its own motion, authorized administrative rezoning on property owned by David and Kimberly A. Goldstein, on which a development has been submitted initiating a consideration of change from RU-2-4 and RR-1 to SR on 0.61 acre located on the east side of Highway A1A, approximately 0.28 mile north of Hidden Cove Drive, which was recommended for approval by the Planning and Zoning Board.

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to approve Item 9 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 10. (Z0101302) John M. Boltz and Patricia A. Shaia Boltz's request for change from BU-1-A and RU-1-13 to all RU-1-13 on 0.49 acre located on the southwest corner of Heron Drive and Highway A1A, which was recommended for approval by the Planning and Zoning Board.

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to approve Item 10 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 11. (Z0101303) Evalena R. and John Johnson's request for change from GU to AU on 6.5± acres located on the west side of Fleming Grant Road, approximately 1.01 miles south of Wilden Road, which was recommended for approval by the Planning and Zoning Board.

Evalena Johnson thanked Commissioner Higgs for trying to help resolve the rezoning issues with some of the residents on Fleming Grant Road even though they were unable to resolve those issues; and requested the property be rezoned from GU to AU. She stated no one spoke against this item at the January 8, 2001 meeting; and it was approved unanimously. She stated she would like to build a mother-in-law home with kitchen facilities, but that cannot be approved in GU; and if she wished to sell half the property, it could not be done with GU zoning because of the setbacks. She stated it would be necessary to rezone the property to AU and then get a variance. She stated she is nearing retirement age and is thinking about the future; and she plans to sell the property in the most advantageous way for her.

William Gates spoke in opposition to the rezoning, based on the rural residential character of the area and the activities allowed under AU. He encouraged Ms. Johnson to agree to a binding development plan limiting the uses.

Kathleen Pirrung requested the rezoning be approved with a binding development agreement restricting the uses on the property to those that would be compatible with the area.

Linda McLain Brannan spoke in opposition to the rezoning based on compatibility issues; and commented on a binding development agreement.

Lorraine Demontigny stated she owns the property across the street from Ms. Johnson; and advised of density restrictions. She stated AU is appropriate to meet the Johnson's needs; there is additional AU property to the north; and the P&Z Board recommended approval.

Lynn Conroy expressed concern about the allowable uses under AU; and stated she is not concerned about the division of the property or the mother-in-law quarters, but is about the raising and grazing of animals. She stated this is a use and compatibility issue. She requested the rezoning not be approved until there is more time to look at it.

Marlene Hughes spoke in favor of the rezoning to AU, based on density being better for the area.

Ms. Johnson stated she was unable to get her next door neighbors, the Kleins and Valeree Huwe, who have no problem with the rezoning, to come to the meeting tonight.

Commissioner Scarborough stated it appears there is no opposition if Ms. Johnson would agree to limit the use in an agreement. Ms. Johnson stated her fear is that when she needs to sell, the agreement will restrict the buyers.

Commissioner Higgs stated she has not had an opportunity to talk to Ms. Johnson except very briefly; and there is an opportunity to come to a solution that would address the concerns of the people and allow Ms. Johnson to do what she wants to do.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to table Item 11 to March 1, 2001. Motion carried and ordered unanimously.

Item 12. (Z0101304) Kenneth L. and Diane E. Chapin's request for change from AU to RR-1 with a BDP limiting density to one unit per 2.5 acres on 11.5 acres located on the south side of Fleming Grant Road, approximately 203 feet west of River Drive, which was recommended for approval by the Planning and Zoning Board, with a Binding Development Plan limiting development to four lots.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to approve Item 12 as recommended by the P&Z Board with a Binding Development Plan limiting development to four lots. Motion carried and ordered unanimously.

Item 13. (Z0101401) Friendship Primitive Baptist Church's request for change from TR-1, TR-3, and BU-1 to all TR-1 and a CUP for a Church on 3.53 acres located on the west side of Burnett Road, approximately 0.18 mile south of Parrish Road, which was recommended for approval by the Planning and Zoning Board.

Motion by Commissioner Scarborough, seconded by Commissioner O'Brien, to approve Item 13 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 14. (Z0101402) Falcon Realty and Development Corp.'s request for a CUP for Alcoholic Beverages for On-Premises Consumption in an IU zone on 0.055 acre located on the southwest corner of Business Center Boulevard and Commercial Drive, which was recommended for approval by the Planning and Zoning Board, for a Fraternal Organization only, with hours of operation being Monday through Thursday, 4:00 p.m. to 8:00 p.m., Friday and Saturday, 1:00 p.m. to 11:00 p.m., and Sunday, 1:00 p.m. to 8:00 p.m., as stipulated by the applicant, and upon vacating of the premises, the CUP will come back for review.

Don Simms stated he is the owner of the property; when he was approached by the Viera Elk's Lodge to locate in the Wickham Business Park, he was reluctant to enter into an agreement as he was not sure how the other businesses would look upon a private organization locating in the Business Park; but all the business people he spoke to were in favor of the Elk's Club moving in, and several were already members. He stated several of his Suntree neighbors contacted him to advise that the majority of members of the Elks are residents of the area, and that it is a private organization that does many charitable functions. He stated the Viera Elks Lodge has been a model tenant; there is no desire to have a bar or restaurant should the Elks relocate at a later date; and he turned down several people who wanted to locate a bar or restaurant in the Wickham Business Park.

Paul Bonville, President of the Viera Elks Lodge, advised they are asking for the CUP to sell alcohol to members; it will never be open to the public; the P&Z Board included a restriction that it would be used as a fraternal organization only; and a CUP was granted to the Merritt Island Elks Lodge in 1994 even though it is in the middle of a residential area zoned BU. He advised of the generosity of the Elks; and stated the objective is to make as much money as possible so they can give it away. He advised of the requirements to be an Elk and the demographics of the group; and stated the Elks are an asset to the community. He stated they attempted to contact both individuals who objected to the CUP at the Planning and Zoning meeting, and were able to meet with the church, but were unable to make contact with the other party. He stated the opposition from the church was due to a misunderstanding and lack of communication; and after a meeting, the church indicated it had no further objection to the CUP, but requested the hours of operation be modified as follows: Monday, Tuesday, and Wednesday, 5:00 p.m. to 8:00 p.m.; Thursday, 5:00 p.m. to 11:00 p.m.; Friday, 5:00 p.m. to 11:00 p.m.; Saturday, 1:00 p.m. to 12:00 midnight; and Sunday 1:00 p.m. to 9:00 p.m. He stated the maximum hours on special functions may be somewhat later; requested permission to modify the hours if situations arise; and advised he has a letter of verification from the church. He stated there are also numerous letters from the businesses and owners in the Wickham Business Park in full support of the request for the CUP; and there are letters from homeowners in Pineda Crossing voicing support. He commented on opposition prior to the restriction that it can be a fraternal organization only, 20% of the notices being duplicates, and 15 responses in support dated subsequent to the P&Z meeting, thus reflecting the most recent criteria that the CUP can never be used for the public sale of alcohol.

Curt Barger, Al Renzi, Bob Coker, Larry Allen, Ron Dipraio, and Joseph Armao spoke in support of the rezoning.

Frederick Sandor, President and CEO of Circle Redmon, Inc., stated he is in opposition to the permit; he is a property owner near the proposed site; and advised of moving his business to the Business Park in 1991. He stated at that time, the Business Center Boulevard ingress and egress were divided by islands; for the past nine years Circle Redmon has borne the cost of maintaining the islands to insure they are aesthetically pleasing as well as providing for safe operation of traffic; and advised of his operating hours. He stated in 1998 the County allowed a special permit for a church and school directly across from the property, and there is also a school at the intersection of Wickham Road and Business Center Boulevard. He stated while the Elks would otherwise be allowed use in an IU zoning district, that use is inconsistent with the development that has occurred in the industrial park; and the conditional use permit will enable growth of non-similar land and business uses that will adversely affect the existing businesses, the safety of the employees, and the safety of the rest of the community adjacent to Business Center Boulevard and Wickham Road by introducing alcohol into an ever-increasing traffic condition. He stated the number of accidents and near misses has risen to the point where ingress and egress at Wickham Road and Business Center Boulevard is nearly impossible in a safe manner; and the introduction of alcohol can only further exacerbate the problem. He stated the Viera Elks Club is a private social club that operates under the auspices of a charitable organization; and by its own admission, it cannot function as a charity without the sale of alcohol to generate income. He stated he is not opposed to the Elks and their work; but inquired when it is necessary to sell alcohol to members to generate sufficient funds to support their works, and such sales occur in an established industrial park with proximity to a church and children, what kind of message does that send. He advised of errors on the application including number of road lanes; and described the area. He stated the building in which the proposed conditional use permit would be operational is only 172 feet, 4 inches from the property line of the existing church/school, which is in violation of Code Section 62-1906(b). He stated when the Board allows changes from industrial to commercial, it dramatically increases vehicular traffic; industrial and manufacturing sites typically limit vehicular traffic to their employees and their suppliers; Business Center Boulevard already has hazardous conditions associated with
road use; and operation with alcohol thrown into the mix causes grave concerns. He expressed opposition to the permit because it is not compatible with the Business Park, and a conditional use permit would run with the land.

William Powell stated he is a licensed professional land surveyor; he has been actively operating in the County since 1962; and he was hired by Circle Redmon to determine the correct measurement from the subject building to the south property line of the Faith Fellowship Church and School property; and the measurement from the south property line of the church and school to the nearest point at the north end of the subject building is 172 feet, 4 inches.

Attorney James Beadle, representing Circle Redmon, stated the issue is not whether or not the Elks provide benefits to society, but whether or not the conditional use permit for alcoholic beverages should be allowed on this particular site; and County Code says except for restaurants with more than 50 seats, no alcoholic beverages shall be sold or served for consumption on premises from any building within 300 feet from the lot line of a school or church. He stated the purpose of Mr. Powell's testimony was to illustrate that the building in which the lease premises are located is within 300 feet; staff comments indicate the units that are involved are not within 300 feet, but that is not what the Code says; and the Code says, "the building in which the premises are located." He stated what is being requested is a conditional use permit; what is being discussed is an accessory use; but that is not how it is evaluated; and it is, in essence, a bar. He stated the property has been predominantly developed as an IU zoning district; although permitted in IU, the proposed Elks Lodge is a BU use; as a BU use it would not be allowed to sell alcoholic beverages, but would be allowed to sell package alcohol; and if it was located on the lot immediately west of the one on which it is located, it would not be able to even apply for this particular use. He stated there will be a traffic situation; a traffic report presented by staff at the P&Z meeting indicated the intersection is very close to needing signalization; and it would not be appropriate to authorize the conditional use there. He stated the application indicates this is for .055 acre of land; and if this is supposed to be part of the IU parcel, that further substantiates the issue about distance requirements; and if the applicant is trying to separate this unit out from the parcel, the question becomes should the particular use then be required to comply with all the other zoning requirements for that use. He commented on zoning requirements, parking, and conflict in operational hours; and requested the permit be denied.

Don Simms reiterated he owns the building, he was present at the meeting with the church; and recommended Mr. Bonville be allowed to read the letter from the church. He noted he has no problem with vacancies in his units.

Paul Bonville stated the Elks Club's primary function hours would be in the evening and on weekends, which is not normally the heavy time zone on Wickham Road; and read aloud a letter from Attorney Keith Williams, representing Faith Fellowship Church, indicating it does not oppose the rezoning.

Commissioner O'Brien stated he is an Elk; advised of the assistance provided by the Elks 24 years ago when his son was born crippled and he had inadequate health insurance; and stated his son can run, jump, ski, etc. today. He stated he is a charter member of the Merritt Island Elks Club #19, and feels strongly it is one of the best groups in the country.

Commissioner Higgs stated the issue before the Board tonight is not whether the Elks are good or not; it is an issue of a conditional use permit for alcoholic beverages; and she is interested in the distance between the unit and the church. She stated the testifying professional said it was 172 feet, four inches; and inquired what is the measurement supposed to be. Ms. Bentley responded it raises an interesting point; and typically the Zoning Official has the authority to interpret questions like that. She stated the application at this time is for the entire parcel, which means it would be measured from the entire building; if the application is limited to a single unit, then it reaches the question being raised; but she does not know if they have limited it to a single unit. Commissioner Higgs stated if it is the entire parcel, they do not meet the distance requirement. Ms. Bentley inquired if they have limited it to a unit; with Mr. Enos responding the information that was presented by the applicant in the CUP application did limit it to one of the units in the rear of the building, which is 255 from the property line, plus the 130-foot right-of-way, or 385 feet from the lot line of the church to the building; but the building itself is only 42 feet from the lot line, plus the 130 feet, or 172 feet from the lot line of the church. Chairman Carlson inquired if that is acceptable. Commissioner Higgs inquired if the CUP at this point is on the whole building. Ms. Bentley stated they are attempting to limit it to the unit; it is an interpretation question; and she does not know if there is a written Zoning Official interpretation on that or any history along those lines.

Mr. Simms stated the lease is on units B8 and 9 in the south end of the center building; and the building is 270 feet long.

Mr. Enos stated in the past in a multi-unit building, the Board has considered the distance to be measured from the unit in the building as opposed to the building itself. Chairman Carlson inquired if the calculation is based on the middle building; with Mr. Enos responding yes, it was based on the location of the unit they are renting in the building. Chairman Carlson inquired if that is within the legal requirement; with Ms. Bentley responding the Board can limit it to this particular unit, and the CUP cannot go beyond the boundaries of the fixed unit, assuming the walls do not move. Commissioner O'Brien stated the Board has done this before many times. Mr. Simms stated they could not remove the walls on their two units because they are against firewalls; and there are no vacancies in the building.

Commissioner Higgs inquired in the review for change of use, what would staff do if this was a stand alone building. Mr. Enos responded staff is in the middle of changing how it deals with change of use; for many years, staff only looked at the use itself to see if it was consistent with the zoning classification, ignoring such things as parking standards; however, the Board directed staff to change that process so that change of use would perhaps include changes to the site plan to improve parking to come up to standards because parking standards change by use not by zoning class. He stated that process has been initiated. Ms. Busacca stated the Board directed staff to review all the standards required for site plan in the event of change of use; so if someone were to come into the unit after the Elks left and asked for an occupational license, that would actuate the review. Commissioner Higgs stated that was directed for all properties; and inquired if the Elks are the first occupants of the units; with Mr. Simms responding affirmatively. Commissioner Higgs inquired how it would be handled in an industrial area where the zoning remains IU and there are tenants in and out and occupational licenses changing. Mr. Enos stated it is a substantially different use from a parking standpoint; for industrial use the parking standard is one space per 500 square feet; and for a use such as the one being considered, the standard is one space per 65 square feet. He stated once the process begins, if this were not the first user of the building, there would be a potential parking problem. Ms. Busacca inquired if an occupational license is required to be an Elk; and stated the occupational license is what gets it into that process. Mr. Simms responded he is not sure if a fraternal order needs an occupational license, but all other tenants have licenses. Ms. Busacca stated she is not aware that an occupational license would be required for the Elks because they are not in a business. Mr. Bonville advised they do not have an occupational license, nor is one required.

Discussion ensued on Elks Lodge serving as a gathering place, sale of alcohol to members and guests only, and sales tax.

Mr. Enos stated because they would not need an occupational license, the County would probably never see this during the change of use process. Ms. Busacca advised unless they came in for a building permit, the County would never see this.

Commissioner Higgs requested Mr. Simms address the parking. Mr. Simms stated when he designed the parking, a study was done; when they did the layouts, they slated 90 parking spaces; but they amended the site plan when they built Phase 4 to put parking on the front of the building and the back, which added 54 more places. He stated in addition, they put in big semi staging areas because some of the deliveries come at night; the biggest days for the Elks would be Friday, Saturday and Sunday; the staging areas are only used at night on Monday, Tuesday, and Wednesday; so they have allowed the Elks to use those areas for parking, and have not had a conflict with the existing tenants because they close and leave work at the time the Elks are opening. He advised he went door to door concerning this issue; and the Elks also went door to door and have over a dozen letters from tenants who are neighbors and are in favor of the CUP.

Motion by Commissioner Colon, seconded by Commissioner O'Brien, to approve Item 14 as recommended by the P&Z Board, limited to Units B8 and 9.

Mr. Beadle inquired if the permit is going to be limited solely to the Elks because normally a conditional use permit runs with the land, and if the Elks leave, the permit will stay. Chairman Carlson stated the P&Z Board recommended that it be identified for a fraternal organization only and identified hours; and the motion is for it to apply only to the two units they are leasing. Mr. Enos advised the hours were amended by the applicant. Commissioner Higgs stated the fact that the applicant amended the hours does not mean that the P&Z recommendation is amended. Mr. Enos stated if the Board approves the P&Z recommendation, that is different than the amended operating hours.

Discussion ensued on the operating hours.

Ms. Bentley stated the P&Z recommendation should have taken into account that the use runs with the land rather than the user, so if challenged, the P&Z recommendation would not withstand legal attack. Chairman Carlson stated it cannot be identified for a fraternal organization, but it can be identified to the two units. Ms. Bentley stated it can be limited to the units. Ms. Busacca noted the Board can limit the hours of operation. Chairman Carlson inquired about the amended operating hours; with Mr. Enos advising Monday through Wednesday, 5:00 p.m. to 8:00 p.m.; Thursday, 5:00 p.m. to 11:00 p.m.; Friday, 5:00 p.m. to 11:00 p.m.; Saturday, 1:00 p.m. to 12:00 midnight; and Sunday, 1:00 p.m. to 9:00 p.m.

Commissioner Higgs inquired if there is no way to limit it to a fraternal organization in terms of a time limit or some other method. Mr. Bentley stated it is possible to do time limits. Chairman Carlson stated someone said this was a temporary location for the Elks. Mr. Bonville stated it is temporary because they hope to find their own location; it is surprising that it cannot be limited to a fraternal organization because in 1994 the Board did that for the Merritt Island Elk's Lodge; and it is difficult to say how long, but they are anticipating five years. Chairman Carlson stated if the CUP that was issued in 1994 was challenged, the County could lose the case; and the Board could make that provision now, but it would not hold up in court if the County needed to take the CUP away. Mr. Bonville suggested limiting it to five years, and if they have not moved by then, they could come before the Board with the same criteria as now. Commissioner Higgs inquired how long is the lease; with Mr. Bonville responding it is for one year at a time because that is all the Grand Lodge allows, but there are four option years. Mr. Bonville stated he would hate to say five years, and have it turn out to be six, and in that fifth year, they would wind up with a much more restrictive situation. Commissioner Colon stated the Board's concern is to protect itself; it does not mind the Elks being there; but it would not want anyone else coming in so close to a church or school. Commissioner O'Brien suggested amending the motion to limit it to five years.

Motion by Commissioner Colon, seconded by Commissioner O'Brien, to amend the motion to approve Item 14, limited to a five-year period; limited to Units B8 and 9; and limited to the hours of operation being Monday through Wednesday, 5:00 p.m. to 8:00 p.m.; Thursday, 5:00 p.m. to 11:00 p.m.; Friday, 5:00 p.m. to 11:00 p.m.; Saturday, 1:00 p.m. to 12:00 midnight; and Sunday, 1:00 p.m. to 9:00 p.m. Motion carried and ordered unanimously.

The meeting recessed at 9:07 p.m. and reconvened at 9:21 p.m.

Item 15. (Z0101403) State of Florida Department of Transportation's request for a CUP for Towers and Antennae in an AU zone on 0.07± acre located at the northwest portion of the intersection of I-95 and Wickham Road in the FDOT right-of-way, which was recommended by the Planning and Zoning Board to be tabled to the February 5, 2001 P&Z meeting. (Tabled earlier in the meeting to February 5, 2001 P&Z meeting.

Item 16. (Z0101404) William Ben and Mary L. Sims' request for change from RU-1-13 to RR-1 on 13.64 acres located on the south side of Lake Drive approximately 0.31 mile west of Clearlake Road, which was recommended for approval by the Planning and Zoning Board.

Chairman Carlson requested staff comment on the wetlands, and how many units can be built on the property. Zoning Official Rick Enos stated staff review indicated the property may be as much as 100% wetland; if that is the case, and that has yet to be determined, the project would generate no more than two units at one unit per five acres; however, the current zoning is RU-1-13, which is a higher density, and the requested zoning would be a downzoning.

Chairman Carlson inquired if the applicant realizes the potential wetland impact.

William Ben Sims stated he currently has Joe Mayer with Bussen Engineering doing an analysis of the wetland area; and Mr. Mayer is designing a site plan in consultation with an environmentalist.

Chairman Carlson inquired if Mr. Sims is aware of the discussions the Board had on wetlands, uplands, and ability to build; with Mr. Sims responding affirmatively.

Motion by Commissioner Higgs, seconded by Commissioner O'Brien, to approve Item 16, as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 17. (Z0101405) V.F.W. Satellite Post #8191's request for change from BU-1 to BU-2 removing the existing CUP for a Private Club, and retaining the existing CUP for Alcoholic Beverages On-Premises Consumption on 0.43 acre located 300 feet west of U.S. 1, approximately 200 feet south of Elm Street, which was recommended for approval by the Planning and Zoning Board with a Specific Use for Outside Storage of Boats and Trailers only.

Motion by Commissioner Scarborough, seconded by Commissioner Higgs, to approve Item 17 as recommended by the P&Z Board.

Domenick Perrone stated on the Agenda it says outside storage of boats and trailers only; but they also submitted for motorhomes. Zoning Official Rick Enos stated there was discussion of motorhomes as well, and that was part of the intent; and suggested clarifying that with the motion.

Commissioner Scarborough amended the motion to include storage of motorhomes; and Commissioner Higgs accepted the amendment.

Commissioner O'Brien stated the Board is removing the existing CUP for a private club, and retaining the existing CUP for Alcoholic Beverages for On-premise consumption; and inquired what is the overall effect of doing that. Mr. Enos stated the reason for that is the previous CUP for private club was on the residential part of the property; and when it was zoned to commercial, a private club became a permitted use, so the old CUP is no longer needed. Commissioner O'Brien stated the Board is looking at a situation where it is no longer restricted to a private club; and suggested putting a time limit on it so it has to come back to the Board unless the Board does not care that in the future VFW Post 191 may decide to sell their property and someone can open a bar. Mr. Perrone stated at the Planning and Zoning hearing on the BU-1 a year ago, much like the situation with the Elks Club, the CUP is to remain with the veterans group as opposed to reverting to private business.

Chairman Carlson stated the Board did not do that with the Elks because it does not hold up in court; and what it did was put a time limit on. She inquired if the VFW is going to be in this complex for the next five years; with Mr. Perrone responding it is a brand new facility. Chairman Carlson inquired if the Board wants to do the same thing as it did for the other CUP. Mr. Enos advised the request is for BU-2; the CUP is already on the property; and he is not sure it is open to discussion. Chairman Carlson inquired since the Board is changing the zoning, is it allowed to do any restrictions on the CUP. Ms. Bentley stated only the BU-2 was advertised; and it would need to be readvertised. Chairman Carlson stated in order to be fair, it should be tabled to make sure it is properly advertised. Commissioner Higgs stated the application is only for outside storage; with Ms. Bentley advising it is for the BU-2.

Discussion ensued on the application, different CUP's, Board direction to provide notice of CUP issue when rezoning occurs, and the advertisement.

Commissioner Scarborough stated the VFW already had the CUP for alcoholic beverages; they did not ask for it in this application; and inquired if they did not request it, why would it be advertised. Commissioner Higgs stated the request says they are retaining the CUP, but not asking to change it. Mr. Enos advised the advertisement includes the words, "retaining the CUP." Ms. Bentley advised it would be necessary to readvertise if the Board wants to modify the terms of the CUP. Commissioner Higgs noted in that case, it would be the Board's application to change the CUP; with Mr. Enos advising the Board would have to direct staff to initiate that, and it would be independent of the application for BU-2. Commissioner Scarborough stated the two cases are not identical; the Elks were in an industrial area, which is an area where there can be adult entertainment; and inquired if the VFW owns the building, and when was it finished; with Mr. Perrone responding yes, and it was finished last week. Commissioner Scarborough commented on the different levels of risk between the Elks item and the VFW item; and stated the risks with the VFW are not as great as with the structure of the property for the Elks. Commissioner Higgs stated the case is different because the CUP is
not part of the application, and the Board would need to initiate the change; and if the Board is going to initiate a change on the CUP in terms of any of the private clubs, it needs to do all of them. She noted the motion is on the outside storage.

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

Item 18. Removed from Agenda.

Item 19. (Z0101407) Brevard County Board of County Commissioners' request for change from RU-2-10 to GML-I and removal of the existing BCP on 12.77 acres located on the south side of Jordon Blass Drive, approximately 700 feet west of Wickham Road, which was recommended for approval by the Planning and Zoning Board.

Motion by Commissioner Higgs, seconded by Commissioner Scarborough, to approve Item 19 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 20. (Z0101408) W. Robinson Frazier, Trustee and George R. Schell's request for a CUP for a Commercial/Residential Marina in a BU-1 zone on 1.2 acres located on the east side of U.S. 1, approximately 0.34 mile north of Pineda Causeway, which was recommended for approval by the Planning and Zoning Board.

George Schell stated he is applying for a conditional use permit for a marina. Chairman Carlson inquired if it is a 12-slip marina; with Mr. Schell responding affirmatively. Chairman Carlson inquired if Mr. Schell has gone through any of the permitting processes; with Mr. Schell responding he is the midst of those, but they are pending approval of the zoning. Chairman Carlson inquired if Mr. Schell had to provide information about seagrass, manatees, etc.; with Mr. Schell responding yes.

Zoning Official Rick Enos stated it does not have to be part of this application, but eventually the County will need to see water quality data; and they have met all the other standards. Environmental Section Supervisor Debbie Coles stated the State will not issue the permit without the water quality issues being addressed.

Commissioner Higgs stated the Board discussed conditional use permits for marinas in terms of upland uses and water-related uses, but the Board has not determined specifically what it would do concerning that; and inquired about manatee abundance and mortality data for this area. Ms. Coles advised it shows there has been one mortality across the river and to the north of the proposed facility; the mortality data is between 1974 and March of 1999; and the abundance data also shows sitings of manatees in the area. Commissioner Higgs inquired about seagrass in the area. Ms. Coles advised the seagrass survey shows grass up toward the shoreline, but there is no seagrass in the area of the actual boat slips. Commissioner Higgs inquired if the abundance of seagrass is an attractive feature for manatees; with Ms. Coles responding it is very sparse; it begins 10 to 15 feet waterward of the mean high water line and continues approximately 30 feet; and no other resources were noted. Ms. Coles stated there is approximately 75% coverage within the area, and there is none past the 30-foot mark. Commissioner Higgs inquired if there are any big seagrass beds in the area; with Ms. Coles responding there are similar seagrasses to the north and south that run along the shoreline. Chairman Carlson inquired if there are any further away from the marina; with Ms. Coles responding she could not tell without refreshing her memory. Commissioner Higgs inquired if there are any fresh water factors; with Ms. Coles responding she is not aware of any fresh water sources other than hoses at the marina, although there may be some kind of weepage spring. Commissioner Higgs inquired if there is a fresh water stream; with Ms. Coles responding a branch of Otter Creek comes out in that area.

Mr. Schell stated there is a County boat ramp and another County-owned parcel that goes to the sailing center; and they are the next two parcels; the permits pending the zoning take into account the grass area, and that is all included in the application with the Department of Environmental Protection.

Chairman Carlson stated she inquired about the commercial square footage the property potentially has, and the commercial/residential building. Mr. Enos stated the applicant's specific plan is for a 12-slip marina and a 3,000 square-foot commercial/residential building. Chairman Carlson inquired if Mr. Schell will be living there; with Mr. Schell responding the 3,000 square-foot building only has a 1,500 square-foot footprint because it is a two-story structure; and there will be a shop on the first floor and residential on the second floor. He noted a site plan has been submitted.

Commissioner Scarborough inquired if the Board has gotten anything back from the State on marina siting; with Commissioner Higgs responding there is nothing formal back. Commissioner Scarborough inquired if the County is going to be involved with marina siting; with Commissioner Higgs responding it is her opinion that the State is going to ask the County to take a larger role than it planned to.

Discussion ensued on marina siting and the County's role.

Commissioner Higgs state in terms of upland environment it is consistent with the other upland features there.

Commissioner O'Brien stated the applicant has addressed and meets every parameter.

Motion by Commissioner O'Brien, seconded by Commissioner Colon, to approve Item 20 as recommended by the P&Z Board. Motion carried and ordered unanimously.

Item 21. (Z0101501) John Sirounis and Sons, Inc.'s request for change from BU-1 to BU-2 on 3.31 acres located on the west side of Highway A1A approximately 150 feet south of Ocean Oaks Road, which was recommended for approval by the Planning and Zoning Board, for a self-storage mini-warehouse facility only, with a Binding Development Plan with stipulations as offered by the applicant.

Attorney Leonard Spielvogel, representing John Sirounis and Sons, Inc., stated his client owns 3.22 acres located on the west side of A1A approximately one and one-half miles north of US 192; and pointed out the area on the map. He stated to the west and south of the property is single-family residential; on the north is a two-story business building; and across the street are three condominiums. He stated the present zoning is BU-1; the request is for BU-2 subject to a binding development plan which allows only self-storage mini-warehouses and no other BU-2 use; and the rezoning has the unanimous recommendation for approval by the P&Z Board. He stated there are many permitted uses in BU-1 which have the potential to be objectionable in close proximity to single-family residences; in BU-1 among the permitted uses are selling and servicing of tires and mufflers, cafeterias, restaurants, convenience stores, grocery and drug stores, meat, fish and seafood markets, motorcycle repairs, movie theaters, and a post office; and BU-1 only requires a 15-foot rear and side setback and permits 35 feet in height. He stated there could be a situation where a three-story building is 15 feet away from the property line of a single-family residence. He stated in BU-1, the average daily trips are 1,386; in BU-2 it would be 1,940 average daily trips; however, in mini-warehouse use, the average daily trips are 212, with only 12 peak hour trips. He stated the access from the property is solely onto A1A; there are two entrances proposed; and they do not access any side streets. He stated a binding development plan has been submitted; much of it is boilerplate that has been applied in every instance; paragraph 4 addresses those things which are not tailor-made for the specific property, but have been used before in mini-storage; and a copy of the binding development plan was provided to Mr. Enos and Ms. Bentley. He stated in paragraph 4 they propose to restrict the BU-2 to a mini-warehouse facility, prohibit any business or industrial operations from individual storage bays, and prohibit storage of any hazardous materials; and all lease agreements will specifically incorporate those prohibitions. He stated they will design and construct the bays so there are no utilities to them; and lighting and air conditioning, where furnished, will only be in the hallways. He stated there will be no outside storage, no tractor-trailers unless they are picking up or delivering storage items, no generators on the property unless there is an emergency where power is lost, and a generator is needed on a temporary basis, and no hazardous material onsite; and signage will be placed on every building incorporating the prohibitions about no hazardous materials and affirming that the bays cannot be occupied as businesses or industrial uses. He stated lighting will be maintained onsite; and the entrance gates will be set back approximately 33 feet so that when a vehicle is pulling in, its rear end will not be on A1A or on the sidewalk. He stated the client was mindful that there are single-family residences to the west and south; in present zoning, they could go up 30 feet in height; and presented the proposed plan, including at least 30 feet before any structure, 85 feet to any two-story structure, and no more than a two-story structure. He stated the facility would be secured and gated; the hours of operation have been indicated; and presented a map showing the location of the buildings. He stated there are condominiums across A1A that will be looking at the front of the structure; he attempted to meet with the officers of the condominiums; and George Wilson, President of Royal Palm Condominium, met with him and Engineer Scott Nickle. He stated they left a copy of the binding development plan and book of plants and shrubs that will grow in this environment with Mr. and Mrs. Wilson, and asked them to recommend any additional plants or trees that they would like to be added to the plantings. He stated Project Engineer Scott Nickle from Bussen Mayer Engineering, Ecologist Lynn Olsson, and MAI Appraiser Dennis Basil are present to respond to questions; and noted Ms. Olsson walked the property, made a preliminary evaluation, and found no scrub jays or wetlands.

Alice Williams spoke in opposition to the rezoning based on A1A being a scenic road and the character of the area.

Mark Riveglia spoke in opposition to the rezoning based on character of the area, traffic concerns, obstruction of bike path, and facility being an eyesore. He stated he is also concerned about height; and inquired how high is a two-story building. Mr. Enos advised it would be 24 feet.

Donna Mabry spoke in opposition to the rezoning based on availability of other storage areas, traffic concerns, impact to neighborhood, and character of the area. She requested a traffic study be done on Ocean Oaks; and stated if the Board approves the rezoning, it should insure there will be no electricity, air conditioning, TV, or other utilities to the units and that no work can be done on premises by the people renting the units.

Mr. Spielvogel stated he thought he addressed the matter of traffic, but people still have concerns; and assured there is not a better traffic non-generator than what is being proposed. He stated they have BU-1 zoning; what they are doing, in effect, is downzoning; and living near a mini-storage facility is like living close to a mausoleum. He stated it will not have the kind of traffic that would be generated in a BU-1 zone; and the references to tractor-trailers and generators come from the rezoning on Banana River Drive, and can be pulled out if the Board desires. He stated what they are suggesting is attractive; the businesses along that section of A1A are not attractive; and described the buildings in the area. He stated the facility will be attractive, and be an asset to the area; and commented on the need for storage by people moving from up north to condominiums. He stated the fact that only three people spoke in opposition is reassuring; they spoke to a number of people who were pleased with the project; and advised of concerns by the neighbors about transients sleeping in the wooded area. He stated the neighbors most closely affected are pleased to see something like this go in; and the consultants are present to respond to any questions.

Commissioner Scarborough stated the neighbors see this as more of an industrial use than a commercial use; and it would be good to have assurances about the landscaping plan. He stated the binding development plan does not address landscaping; but landscaping can make it more aesthetically pleasing. He recommended Mr. Spielvogel make a landscaping commitment.

Mr. Spielvogel stated the Wilsons are present. Commissioner Scarborough noted the Wilsons did not speak; but one speaker specifically expressed concern about the appearance of the facility; and one place can deteriorate the appearance of the whole neighborhood. Mr. Spielvogel stated the least expensive but most impressive investment in a property is landscaping; his client is in favor of enhancing the property; and they will be glad to include language in the binding development plan. Commissioner Scarborough stated that assurance needs to be there. Mr. Spielvogel stated they will use the County requirements as a starting point, add whatever landscaping the neighbors would like to suggest, and put it in the binding development plan; but they will need a period of time so they can plant. He stated if someone will suggest language, he will be glad to put it in.

Commissioner Colon stated something was said concerning only three speakers against the rezoning; and requested anyone present against the rezoning to raise their hands; with a small group responding. She stated she wants the Board to realize it is more than just three people, although it is not relevant to the evidence before the Board. She stated she is going to make a motion to deny because the rezoning request does not meet the locational criteria; it is inconsistent with Comprehensive Plan Policy 4.7 of the Future Land Use Map; it is not
consistent with the scenic character of the area; and approval would increase the ability for similar rezonings that would encroach on the residential nature of the area. She stated these are serious concerns because of what is happening to the beaches; if the Board allows the rezoning, it will create a domino effect; the area is dominated by single-family and multi-family residential; and no matter how many palm trees are added and how beautiful the storage area is made, it goes against the nature of the beauty within the area, and does a great injustice.

Motion by Commissioner Colon, seconded by Commissioner Higgs, to deny Item 21.

Commissioner Higgs stated the staff report indicates inconsistency with the Future Land Use Element; and in the past when the Board has approved mini-storage in an area that is predominantly BU-1, it did not have the frontage along a major highway as this parcel does. She stated the parcel has very little depth; in the other cases where the Board felt it was appropriate to use this mechanism, there was not the significant frontage along the highway; this project is different from the other projects; and it is incompatible with the area and inconsistent with the Comprehensive Plan.

Chairman Carlson stated she agrees; and called for a vote on the motion to deny Item 21. Motion carried and ordered unanimously.

Item 22. (Z0101502) Johnny E. Godwin's request for a Mixed-Use District Boundary Expansion and a change from RU-1-7 to BU-1 on 2.98 acres located on the southwest corner of
Wood Street and West New Haven Avenue, which was recommended for denial by the LPA and the Planning and Zoning Board. (Tabled earlier in the meeting to March 1, 2001 meeting.)

Item 23. (Z0101503) Claridge Development, Inc.'s request for CUP for Additional Building Height of 19.75 feet in an RU-2-15 zone on 0.83± acre located on the east side of Highway A1A, approximately 100 feet south of Ocean Oaks Drive, which was recommended for approval by the Planning and Zoning Board.

Ed Fleis, Consulting Engineer representing Claridge Development, stated the request is for a 19.75-foot increase to allow a building of 64.75 feet above parking on Lot 7 in Ocean Park. He stated one exhibit shows the general area of A1A; the development to the immediate south is Royal Palms; south of that is vacant, and then there are the Dunes and Jade Palms, which are five stories and six stories. He stated to the north are Majestic Shores at seven stories, The Outrigger at six stories, Sea Pearl at eight stories, and the Quality Suites Hotel; and all are within 1,000 feet. He stated the next exhibit shows zoning; the property across the street is shown as BU-1, but the adjacent zoning is RU-2-15 to the north and south; and there is BU-1 on the west side of A1A. He stated the aerial photograph shows the general character of the area; development along the oceanfront is condominiums; and exhibited another photograph taken from the ocean side looking west that shows Majestic Shores, Claridge, and Royal Palms. He stated he submitted a binding site plan with the application, which shows that the building is proposed as an eight-story condominium, seven stories over one level of parking; the building would be 40.67 feet wide and 145 feet long; and it meets all the criteria for setbacks and breezeways. He stated the review comments from the Planning and Zoning staff are also attached as well as a copy of the Conditional Use Permit criteria; and two further exhibits show the relationship between the proposed Claridge condominium and other buildings in the area. He reiterated the building would be 40.67 feet wide; the building to the north is 86 feet away, and to the south, it is 86.80 feet away; so it is equal distance from the two existing condominiums. He stated Majestic Shores is 62 feet; Royal Palm is 55 feet; the proposed building would be 72.66 feet including one level of parking; and the site is 100 feet wide. He stated they originally submitted an application for eight stories over parking; but after discussion with his client, it was reduced to seven stories over parking, with each story being one unit. He stated the criteria to be met are Sections 62-1900 relative to a conditional use permit and 62-1902 on additional height; on August 3, 1999, the Board amended these particular sections of the Zoning Code to be much more specific about the criteria for approving or denying a conditional use permit on height and other conditional use permits; it is the obligation of the applicant to demonstrate that the project meets all compatibility, specific, and general criteria; and staff indicates they have met that criteria. He stated they are proposing seven units; with RU-2-15 on .83 acre, they could have twelve units; the proposed project would maintain acceptable levels of service; it would be compatible with the adjacent land uses; and it would meet the County use and density restrictions. He stated the access would be provided from A1A; and noted they submitted a site plan for five stories over parking, with ten units; so some of his references would be to that building which could be built on the property. He stated it is not a question of whether or not a condominium can be built, but is a matter of the additional height of the condominium. He stated they meet off-street parking and loading areas; they have indicated they will be walled with landscaping meeting all buffering setbacks; and they will meet the Department of Environmental Protection criteria for turtle protection. He stated the additional height will require them to have a building of 11.83 feet less than that for the five-story over parking building; and it will increase the breezeway. He stated the P&Z Board and Board of County Commissioners shall base the denial or approval of each application for conditional use on the factors specified in Section 62-1151c, plus a determination that it does not result in a substantial and adverse impact on the adjacent and nearby properties. He stated they are decreasing the number of units from ten or twelve to seven; it will not result in noise, odor, particulate, smoke, fumes, or other emissions as compared to a five-unit building; and it will decrease the volume of traffic, which would be considered to be in direct relation to the number of units. He stated the proposed use will not cause a substantial diminution of value of abutting residential properties, which is defined as a 15% reduction in value as a result of post conditional use. He stated these are going to be luxury units; the effect should be positive; and commented on the traffic statistics. He stated the specific criteria for character of the area says the height of the proposed unit shall be compatible with the character of the area, and the maximum height of any habitable structure shall not be more than 35 feet higher than the highest residence within 1,000 feet of the property line; the highest residence is the Sea Pearl, which had a conditional use permit for seven stories over parking; and they are not asking for 35 feet above the highest structure. He stated the building immediately north also has a conditional use permit, and is six stories over parking; and the character of the area is condominium in nature. He requested approval of the additional height; and stated his client has addressed all the established criteria and incorporated it into the planning report and binding site plan.

Commissioner Higgs inquired if Mr. Fleis is dedicating any kind of public easement with this action; with Mr. Fleis responding they would have, but immediately to the north there is a six-foot public access, and to the north of that is a 20-foot dedicated public access.

Bud Chaney stated he lives next door to the proposed project; and there are 100-foot lots on both sides. He presented a video showing the area.

Eleanor Moore, resident of Majestic Shores, advised most of the residents moved to Florida for the health, sunshine, fresh air, relaxation, and personal enjoyment; the community on the barrier island has been perfect; and advised of the activities of the people. She stated the pool, which is located on the south side of the building, depends on southern exposure in the winter months to provide warmth for the swimmers; and the proposed structure will cast a shadow on the pool area. She commented on obstruction of ocean views, benefit to six or seven families outweighing benefit to 58 families, and effect on property values. She stated residents have no objection to a building commensurate with lot size, which is less than an acre; but what is being proposed will diminish her property value because she will lose her view of the southern beaches and the view to the west because the proposed building will be 13 feet higher than Majestic Shores. She commented on problems of beach erosion, cost of beach reconstruction, density of high-rise buildings so close to the dunes, possible consequences of a hurricane or tornado, and species of birds.

Antonio Yatauro advised of the location of his unit on the sixth floor, southeast corner of Majestic Shores Condominium; and stated he and his wife presently enjoy an unobstructed view of the ocean and beaches to the southeast from every room in their unit. He advised of sale of his former unit, buying his present unit, and realization that development of the empty lot to the south would degrade their unobstructed view. He stated if the subject property is developed without the CUP for additional building height, his unit would be 10.26 feet below the top of the structure, but at least the structure would be approximately the same height as his building and those to the north and south; and if the CUP is granted, his unit will be 29.91 feet below the top of the proposed structure, and his view will be the north wall of the structure, which will be 20 feet above the top of his building and those buildings to the north and south. He stated variances are requested based on a solution to some form of hardship; but he fails to see any signs of hardship. He commented on property values, substantial diminution, present view being priceless, and degradation of view. He advised during early 1999 he put his unit 207 on the market at a professionally assessed asking price; many prospective buyers asked about the empty lot next door; and he had to diminish the asking price by 12.6% compared to the same unit 201 on the northwest side of the building, that sold for the asking price during the same period. He requested the Board deny the CUP.

John Cominos, resident of Majestic Shores Condominium, stated he and his wife protest the planned building; and requested the Board not approve the request because such building would seriously devalue his property and the property of all condominium owners in his building. He stated prior to moving to Majestic Shores, he resided at the Villager; at that time, he was told that no building higher than four stories would be approved; later this was changed to six stories; and then because of builders' influence, it was changed to seven stories. He stated before he signed a purchase agreement for a unit in Majestic Shores, he was told that the lot next door was zoned for a two-story building; and if he had thought there was any chance that a high-rise building would be constructed, he would have bought somewhere else. He requested the Board stop changing the rules to appease the developers, and consider the needs of the constituents. He commented on conditional use permits and loopholes that allow four additional stories above the highest building within 1,000 feet; and requested the Board table the item to allow time to give it consideration.

John Wilkinson, resident of Majestic Shores, stated when he and others purchased their units, they were told by the builder's agent that the property next door would be a townhouse complement of perhaps two to four stories, and that it would not be any bigger because the land was too small and was zoned wrong. He stated now the same developer is reneging on these promises; the owners in Majestic Shores are stuck; and it is not fair. He presented a map showing the pool and recreation area of Majestic Shores, the proposed building site, other condominiums in the area, and the shadows cast by each building and the shadows that would be cast by five and eight-story buildings on the subject site. He stated the shadow from a five-story building would totally cover the pool and sitting area of Majestic Shores; an eight-story building would go right into the building; and the shadow cast by Royal Palms Condominium would go over the pool area of the new property. He stated the developer says there will be no impact on property values of abutting residential properties; and the applicant claims that approval of the CUP will not contribute to noise, glare, odor, smoke, fumes, etc., nor will it interfere with the use or enjoyment of adjacent properties, but he does not believe the developer; and requested the Board deny the rezoning request.

Harry Bohmer stated the word compatibility is defined as capable of existing together in harmony, consistent and congruous; Mr. Fleis claims the proposed project is compatible with the surrounding area; and the report also says the Brevard Comprehensive Plan anticipates a mix of uses, thereby asserting compatibility between those uses and compliance with the plan. He commented on the conditions for approval of the conditional use permit, how the developer claims the addition of 19.75 feet in height will have no impact on surrounding areas, and compatibility. He stated the proposed building would be 13 feet higher than his building and 20 feet higher than Royal Palm, and 40 feet wide. He presented a picture showing Majestic Shores and Royal Palm condominiums; advised of their building and lot sizes; and compared them to the size of the proposed building. He commented on number of stories, and height of each story; and stated the proposed building is not compatible, and the conditional use permit should be denied.

Ms. Bentley requested Mr. Bohmer submit his exhibit for the record; with Mr. Bohmer doing so.

George Freeman, resident at Majestic Shores Condominium, stated when he was looking at the condominium, he was assured by representatives of the building contractor that there would be no large building on the lot next door because with all the restrictions, there was no way anyone could build anything on the small lot in the middle higher than two or three stories; and he was satisfied that made sense. He stated if he had known otherwise, he would have looked elsewhere; and now the same building contractor wants to build an eight-story building, which is higher than the others. He stated Mr. Fleis is only asking for 19 additional feet, which seems reasonable; but if he gets approval for the 19 feet and builds the building, with the variance, he would be able to go up 35 more feet on the south lot. He stated the County may limit building height; and commented on the trend toward higher buildings on smaller lots. He stated if the trend is not reversed, pretty soon there will be a solid wall, and there will be no breeze, beach, sun, or view. He stated people buying on the beach pay a premium for the view; and if the proposed building is constructed, it will cut out his view completely. He stated if the Board has made up its mind to deny the request, it should do so; but if not, it should table the item until it sees if the variance is going to be rescinded. He noted once construction starts, it is too late.

Judi Warhaftig, resident of Royal Palm Condominium, stated she bought a corner unit specifically for the view, light and sun; but if the building is constructed next door, she will have no light, fresh air, or view, and her unit will be worth less than she paid for it. She stated they were told when they bought, that there would not be anything taller than two or three floors; but she is going to be facing a brick wall; and her corner unit will be worth nothing.

George Wilson, resident of Royal Palm Condominium, stated they have made a liar out of him; he was told that what would be built would be two stories maximum; and when people asked him what was going to be next door, he told them that it would be a maximum of two stories. He stated they had started digging a swimming pool, and were going forward with a two-story building; then he was told it was not going to be two stories, but four stories, and then eight stories; and he does not know any more. He stated his condominium was built as a special oceanview apartment; if the building goes in next door, 60% of that view will be gone; and commented on the effect on property values. He advised of other condominium construction north of Satellite Beach, which is still unsold because the buildings are so close to each other; stated the proposed building is very narrow, and will be much taller than Royal Palm; and it will take away the light. He commented on his involvement in running the County Jail, prisoners missing the sky, and depriving people who are at the sunset of their lives. He stated they are humans, but if they were scrub jays or other creatures, it would not be possible to build because they could not be disturbed; and the people are hoping the Board considers the human race as good as the other species. He stated they did not know when they moved in that this could happen; they were deceived; and commented on the traffic situation in Boca Raton. He inquired how long before the traffic problems get to Brevard County and the quality of life is gone.

Howard Warhaftig, resident of Royal Palm Condominium, stated he is a Physical Education teacher at Hoover Middle School; many of the young people he works with have been to his house; and when they were told what is to be built next door to him, they expressed concern about access to the beach. He stated the young people say they cannot see the ocean anymore from A1A.

Mr. Fleis stated some great people live in the condominiums on either side of the subject property; they are enjoying their condominiums, which were built by the same developer he is working with; they have quality units; and that is what they are proposing to put on the property. He noted the developer did not own the parcel in question at the time he built the other units; and stated the tradeoff on height is that it increases the breezeway and opportunity to see the ocean. He stated almost every project he has done on the ocean, has involved dedication of public access; and reiterated the reason it was not considered with this project. He stated height also increases the amount of green space on the property; if there were ten units in five stories, the building would be approximately 12 feet wider and it would be necessary to provide for more cars; so there would be more paved area. He stated what they are proposing would decrease the number of units on the property from ten to seven or possibly from twelve to seven; and in terms of compatibility, the character of the area is condominiums. He stated the Board in 1999 further defined compatibility, not to exceed 35 feet in height of the highest residential building within 1,000 feet; Sea Pearl is a little over 500 feet away, and is a seven-story building over parking; and they are not requesting 35 feet over that because the requirements for breezeway require the width of the building to be reduced by a half-percent for every foot of height. He stated if they were going up 35 feet, the building would have to be 17.5 feet narrower, or approximately 23 feet, which makes no sense. He stated in doing site planning, there are some dimensions that work and others that do not; and commented on building heights. He stated oceanfront buildings are built on a structural grid of piling and grade beams, which is a very strong structure; and when Hurricane Andrew came though, he does not recall hearing about much damage to condominiums on Miami Beach. He stated the zoning is not being changed; the zoning always allowed 45 feet; and until 10 or 12 years ago, it allowed a higher building. He stated when they submitted the application for conditional use permit, they carefully studied the rules and criteria; and they have addressed those and are in total compliance. He requested the Board approve the request.

Commissioner Colon stated this is the same developer; and if he had shown people what he was going to do, they would not have bought his units. She stated there have been comments about devaluing condominium units; they mentioned Sea Pearl, but the difference is between Sea Pearl and the proposed condominium is that there was no hardship to the neighboring community when Sea Pearl went up even though it is a condominium. She stated their quality of life will be diminished; the proposal is not compatible; it is a hardship to the people; and she intends to make a motion to deny to protect the people's quality of life. She stated they have presented evidence; some things have not been heard by a judge; all of things have weight; and she is amazed to hear it is the same developer.

Motion by Commissioner Colon, seconded by Commissioner Scarborough, to deny Item 23.

Commissioner Higgs recommended the County Attorney prepare a finding in this case so the Board will have that in the proper form. Commissioner Colon suggested ending the public hearing so both sides will not have to come back; and stated the decision will be to deny based on the facts that the Board has been hearing. Ms. Bentley inquired how much time to write the findings; with Commissioner Colon responding by the next Commission meeting. Commissioner Colon inquired how long would the Attorney need; with Ms. Bentley responding 30 days as she would need to get a verbatim from the Clerk, and March 1 would be a good time to do it. Commissioner Higgs stated the Board will take no further public comment at that time. Commissioner Colon stated the Board will take no comment from either side; the item ends right here; and it will be denied. Chairman Carlson inquired if the Board can do that; with Commissioner Higgs advising the Board cannot deny it until it gets the order. Commissioner Colon reiterated there will be no public hearing so it will not be prolonged.

Chairman Carlson stated the motion is for the Attorney to come back with appropriate language that is defensible for the denial on March 1, 2001. She called for a vote on the motion as amended. Motion carried and ordered unanimously.

Chairman Carlson stated there was a gentleman who mentioned that he had his property evaluated north to south, and said there was a differential between the sides; and inquired if there is additional detail, should the Board ask for it now to include it in the findings; with Ms. Bentley responding he would need to do it now, and Mr. Fleis would need to have an opportunity to rebut. Ms. Bentley noted if the Board brings more evidence at the next hearing, then Mr. Fleis would get an opportunity to rebut them. Chairman Carlson inquired if it would be essential to Ms. Bentley's write-up of this; with Ms. Bentley responding if he has documentation showing differences in actual offers for properties with the same square footage and amenities, that would be helpful.

Discussion ensued on getting additional testimony from Mr. Yatauro.

Chairman Carlson stated Mr. Yatauro made comments regarding the value of his property; and inquired if he had an appraisal, and what were the circumstances; with Mr. Yatauro responding they sold a unit. Mr. Yatauro stated he had unit 207 on the market from January to April of 1999; a similar unit on the northwest corner of the Majestic Shores Condominium, unit 201, was on the market shorter than his unit and sold for approximately $169,000; and he had to lower his unit, which was professionally appraised at approximately $169,000 to $149,000. He stated 40 of approximately 50 prospective buyers who walked through his unit during that period asked about the property next door. He stated he had to reduce his selling price by 12.6% in order to sell at the same time the other unit sold at its original asking price. Ms. Bentley inquired if the square footage of the units is the same; with Mr. Yatauro responding yes. Ms. Bentley inquired if the improvements are essentially the same; with Carmella Yatauro responding their unit had many upgrades. Chairman Carlson inquired if when the Yatauros sold their property, did the prospective buyers know the issue before the Board was coming up. Mrs. Yatauro stated all they knew was that it was going to be a low building, and the lot changed hands a few times. Ms. Bentley stated she and Ms. Busacca have a different understanding of what is going on; and inquired how much did the unit that was adjacent to the vacant lot sell for; with Mrs. Yatauro responding $149,000. Ms. Bentley inquired what is the other unit adjacent to; with Mrs. Yatauro responding the unit on the north side that sold for $169,000 was adjacent to the Outrigger. Ms. Bentley inquired if the unit adjacent to the building sold for more; with Mrs. Yatauro responding yes, but that building is not as close as the one proposed. Ms. Bentley inquired if there is the same ocean view with that building that there is on the other side; with Mrs. Yatauro responding no, they had a better ocean view on the south side.

Discussion ensued on ocean views, pool view, and differences in the units.

Chairman Carlson inquired if Ms. Bentley needs copies of something; with Ms. Bentley responding no.

Commissioner Higgs inquired if it was the lack of clarity of the building that was going to come on the south side that diminished the value; with Mrs. Yatauro responding everyone asked about it. Chairman Carlson stated it was the questionable nature of what was going to happen on that property; and since the north side was already built, it was not an unknown quantity.

Commissioner O'Brien stated he will support the position taken by Commissioner Colon; he finds the project to be incompatible as presented this evening; and the applicant has not demonstrated consistency with the standards set forth in Section 62-1901. He read aloud from Section 62-1901(c)(1); and stated the applicant said the approval of the CUP for additional height was compatible to the character of the developed nearby properties and was consistent, but it is neither compatible nor consistent; and the applicant has not met that part of the Section. He stated if someone has a condominium with an ocean view, and next year that view is taken away, the end result will be that the value will be substantially diminished. He commented on ingress and egress, short distance for acceleration and deceleration, and access to A1A, which is a major corridor. He read aloud from Section 62-1901(c)(2)(I) concerning the height of residential uses within 1,000 feet; stated the tallest residential structure is the Sea Pearl Condominium at seven floors; and commented on the height of other buildings in the area. He stated the proposed height is not compatible with anything around it. He stated the Office of Natural Resources Management advises that the presence of aquifer recharge soils on the property will necessitate having post-development recharge rates equal or exceed pre-development rates; and additional properties are within a scrub jay habitat, so there are a series of problems with the item.

Commissioner Colon stated there has been a motion and a vote; they do want more evidence; and she appreciates Commissioner O'Brien's support.

Commissioner Higgs stated the Board needs to allow Mr. Fleis to rebut the additional testimony.

Mr. Fleis stated for diminution of value, it is suppose to show 15% as done by an MAI appraiser; and when talking about view, he cannot imagine the proposed building would have an effect on view. He stated he is not saying there would not be some view impact, but a five-story building over parking can be built on the site the same as Jade Palm. He commented on the views from Jade Palm; and stated the height does not change anything except the building will be closer if is it a five-story building. He stated the views are the same whether it is an eight-story building or a five-story building; and the views may be less with the five-story building because of the additional 12 feet in width. He stated the only building that might be affected by five stories over parking would be a six-story building; the others will not be affected; and the six-story building will be looking at the top of the new building, and not have a clear ocean view. He stated what is being discussed is the difference between a five-story building over parking versus a seven-story building over parking, relative to views; that was not in the conditional use permit criteria; and with regard to traffic, it would have been seven units instead of ten.

Item 24. (Z0011101) Laurence C. Goethe's request for CUP for Towers and Antennae in an IU zone, retaining the existing CUP for Cement, Concrete and Concrete Building Projects, and BU-2, removing the existing CUP for a Temporary Security Trailer, and AU, retaining the existing CUP for Cement, Concrete and Concrete Building Projects and removing the existing CUP for a Temporary Security Trailer on 30.09 acres located on the northwest corner of U.S. 1 and Smokey Lane. Withdrawn by applicant.

Item 25. (Z0010502) The County Line of Brevard, Inc.'s request for change from TU-2 to BU-1 with a CUP for Permanent Commercial Entertainment and Amusement Enterprises and retaining the existing CUP for Alcoholic Beverages for On-Premises Consumption on 2.71 acres located on the northeast corner of I-95 and U.S. 192, which was recommended by the Planning and Zoning Board to be tabled to the February 5, 2001 P&Z meeting. (Tabled earlier in the meeting to February 5, 2001 P&Z meeting.)

ACKNOWLEDGE RECEIPT, ST. JOHNS RIVER WATER MANAGEMENT DISTRICT'S
BUDGET FOR FISCAL YEAR OCTOBER 1, 2000 THROUGH SEPTEMBER 30, 2001

Motion by Commissioner O'Brien, seconded by Commissioner Higgs, to acknowledge receipt of the St. Johns River Water Management District's Budget for FY October 1, 2000 through September 30, 2001. Motion carried and ordered unanimously.

Upon motion and vote, the meeting adjourned at 11:35 p.m.

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ATTEST: SUSAN CARLSON, CHAIRMAN
BOARD OF COUNTY COMMISSIONERS
BREVARD COUNTY, FLORIDA
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SCOTT ELLIS, CLERK
( S E A L )